Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 48 - NSWIRComm 2014 case summary

Industrial Relations Commission (NSW)|2014-07-18|Before: Walton J, Boland AJ

57 IR 238 Custovic v State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 1007 D'Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 Dadey v Edith Cowan University (1996) 70 IR 295 Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361; [1971] 2 All ER 216 Elgin Nogaliza v Benale Pty Ltd ATF Fletcher Unit Trust t/as Fletcher International WA [2010] FWA 2667 Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 Geoffrey Organ v SPC Ardmona Operations Ltd - PR953160 [2004] AIRC 1119 Howarth v Mornington Peninsula Shire Council Print R0859, 22 January 1999 (Full Bench) Innes v University of Adelaide (No.2) [2007] FMCA 1988 J Grycan v Table Tennis Australia Incorporated - 834/99 M Print R7452 [1999] AIRC 576 Full Bench) Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 Jeannie Ledington re Jeannie Ledington v University of Sunshine Coast (2003) 127 IR 152 Koompahtoo Local Aboriginal Land Council and Anor and Sanpine Pty Ltd and Anor [2007] HCA 61; 233 CLR 115 Nguyen v Oliveri Transport Services [2005] NSWIRComm 1121 North v Television Corp Ltd (1976) 11 ALR 599 Paul Worthington v Curtin University of Technology - PR957589 [2005] AIRC 357 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 Public Service Association of NSW v Industrial Commission of NSW (1985) 11 IR 420 Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 Salveron v Far West Aboriginal Progress Association [1997] IRCA 10 Skele v Kitchener Mining NL [1997] IRCA 75 Smith v Director-General of School Education [1993] NSWIRComm 134; (1993) 31 NSWLR 349 Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416 V Trigar v La Trobe University - T2860 [2000] AIRC 509 Texts Cited: B Creighton & A Stewart, Labour Law, 2010, 5th ed,The Federation Press J W Carter, Carter's Guide to Australian Contract Law, 2006, LexisNexis Butterworths N C Seddon and M P Ellinghaus, Cheshire and Fifoot's Law of Contract, 2002, 8th ed, LexisNexis Butterworths Category: Principal judgment Parties: Behka Custovic (Appellant) State of New South Wales (Department of Family and Community Services - Housing NSW) (Respondent) Representation: I C Latham of counsel (Appellant) A B Gotting of counsel (Respondent) Turner Freeman Lawyers (Appellant) Housing NSW (Respondent) File Number(s): IRC 304 of 2014 Decision under appeal Citation: [2014] NSWIRComm 1007 Date of Decision: 2014-03-26 00:00:00 Before: Newall C File Number(s): IRC 760 of 2013

Walton J, President 1I have had the advantage of reading the decision prepared by Boland AJ and Tabbaa C and I agree with the orders proposed as well as the reasons given therein. 2I propose to make two supplementary observations.

Temporary employment - legislative history 3First, the provisions of the Public Sector Employment and Management Act 2002 ('the 2002 Act'), which govern temporary employment in the public sector, have a long history. A review of that legislative history lends support to the conclusion reached by the plurality that there is no inconsistency between s 84 of the Industrial Relations Act 1996 ('the IR Act') and s 30 of the 2002 Act. 4From the commencement of the Public Service Act 1895, the first of its kind in New South Wales, there was provision for temporary employment (s 37). A temporary employment arrangement under that Act was not to exceed three months and, if necessary, may have been extended for no more than two further three month periods (effectively limiting temporary employment to nine months in total) (s 37(i)). Section 37(iii) provided that "the services of any person employed temporarily may be dispensed with at any time by the Minister or by the Board". The Public Service Act 1902 was in materially the same terms (see s 44). 5Some alteration occurred with the commencement of the Public Service Act 1979. Temporary employees under that Act were able to be employed for a period not exceeding four months, with scope for two further four month engagements (s 80(3)). Thus, temporary employment was limited to a 12 month period, except where the Board otherwise concurred (see s 80). Section 80(5) provided: "the services of a temporary employee may be dispensed with at any time by the Department Head, after consultation with the Board". 6The Public Sector Management Act 1988 ('the 1988 Act') also made provision for departmental temporary employees to be engaged for a period not exceeding four months, with scope for two further four month engagements. The 1988 Act thus prevented temporary employment engagements continuing for a period exceeding 12 months, except with the approval of the Public Employment Office (s 38). 7In the event that a departmental temporary employee was continuously employed for at least two years, they were categorised by the 1988 Act as a "long-term departmental temporary employee". In certain circumstances, such employees were able to be appointed to an officer's position (other than a senior executive position) under s 38A. 8The 1988 Act provided that "the appropriate Department Head may dispense with the services of a departmental temporary employee at any time, but may not dispense with the services of a person employed as referred to in subsection (4) [a long-term departmental temporary employee] without the approval of the Public Employment Office" (s 38(5)). 9The 1988 Act also introduced the category 'special temporary employees' (see s 38A and s 38C respectively). The 1988 Act stated that "the Director-General of the Premier's Department may dispense with the services of a special temporary employee at any time" (s 38D(4)). Further, it provided that "Part 6 (Unfair Dismissals) of Chapter 2 of the IR Act does not apply to the employment of a special temporary employee" (s 38E(3)). 10The protected status of long-term departmental temporary employees in s 38(5) and the prospect of appointment to an officer's position pursuant to s 38A (which may be contrasted with the conditions of special temporary employees) afforded recognition, for the first time, that departmental temporary engagements were not always limited, in practice, to short term engagements and may, thereby, be of a nature which compelled separate recognition. 11Whilst the Act presently under consideration, the 2002 Act, has broad similarities with its predecessors, it also had notable differences. 12The categories of employment in the 2002 Act included officers, departmental temporary employees, special temporary employees and casual employees (see s 7). 13Under the 2002 Act, departmental temporary employees may be employed for a maximum of three years (see Pt 2.4 of Ch 2), with re-employment to be in accordance with guidelines issued by the Commissioner (s 28). In contrast to the preceding legislation, the 2002 Act did not provide for a minimum period, nor did it limit temporary employment engagements to a maximum number of successive periods. It is trite to mention that this represented a substantial increase over the periods provided for by the antecedent legislation. 14The 2002 Act described a departmental temporary employee as a 'long-term employee' when they were engaged for a continuous employment period of at least two years (s 31). In conformity with the 1988 Act, those employees were able to be appointed to an officer's position (other than a senior executive position) in certain circumstances. These provisions sustained the recognition of the ongoing temporary employment that commenced in the 1988 Act. 15Section 30 of the 2002 Act provided that "the appropriate Department Head may dispense with the services of a Departmental temporary employee at any time". Similarly, the 2002 Act also provided that the "appropriate Department Head may dispense with the services of a casual employee at any time" (s 39). 16Whilst the term "at any time" was invoked in each predecessor provision described above, their usage in the 2002 Act occurred in a different context. The 2002 Act gave more recognition to the prospect of long-term temporary employment than the foregoing legislation (even if through successive engagements). The Act expressly contemplated a temporary engagement as being distinct from a casual engagement and, as noted above, significantly extended the duration of temporary employment. The parties did not raise this issue in their submissions, but regard must be had to the composite indicia of stable and ongoing employment provided for in the 2002 Act when considering the operation of s 30 with respect to departmental temporary employees and, in particular, long-term departmental employees (it would appear that the appellant, who was engaged in a continuing employment relationship over six years, falls into that category). 17The effects of the amendments to departmental temporary employment were described in the second reading speech by the Hon Paul Whelan MP as follows: Temporary employment up to three years as introduced by these clauses provides benefits to both employers and employees. Employers will be able to engage a temporary employee for up to three years where a project has a specific time frame or no recurrent funding. Temporary employees will be able to demonstrate a more stable employment history necessary to make financial arrangements such as loans and mortgages. 18The amendments to the nature and scope of the engagement of temporary employees brought about by the 2002 Act (but commencing from the 1988 Act) envisaged that such employees may be subject to long-term continuing contracts, even if in succession, consistent with a class of employee who would enjoy the benefits of Pt 6 of Ch 2 of the IR Act. 19This history lends support for the conclusion reached by Boland AJ and Tabbaa C that the Parliament did not, by necessary intendment, exclude temporary employees under the 2002 Act from the unfair dismissal regime of the IR Act.

Fixed term contracts terminable for breach by law or provision of contract 20Secondly, I turn to the discussion by the plurality at [73] to [92] as to the distinction drawn in some of the authorities between contracts for a specified period of time with a right to terminate the contract on notice on an unqualified basis or upon specific grounds and those containing a provision enabling termination for breach ('the distinction'). This discussion arose during the course of determining whether the subject contract of employment was a contract for a specified period of time in the relevant statutory context. 21Some further observations may be made in that respect: (1)A fixed term contract ending by the passage of time does not constitute a termination of the contract. In Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416 the High Court, comprising Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ observed the following at 520: As a matter of ordinary language, an employer does not terminate an employee's employment when his or her term of employment expires. Rather, employment comes to an end by agreement, or, where the term is fixed by award or statute, by effluxion of time. (2)It follows that the cessation of a fixed term contract other than by agreement or the effluxion of a specified time must constitute a termination of the contract. (3)As the plurality observe, a termination effected by the giving of notice under a contract term by the unilateral act of one party before the expiration of the term fixed by the contract is, therefore, indistinguishable from a dismissal otherwise effected under a contract of employment having an indeterminate period. An alternative process of analysis is that a contract containing a provision permitting unilateral termination by notice prior to the end of the specified period of operation of the contract simply cannot, by its terms, be for a specified period. Upon either process of analysis, a contract of that nature does not fit within the statutory exemption (in reg 6(1)(a) of the Industrial Relations (General) Regulation 2001) because it is not a contract for a specified time. Further, it is a contract which, by its nature, is akin to those ordinarily attracting jurisdiction under Pt 6 of Ch 2 of the IR Act. (4)When analysed in that manner, it is understandable that the plurality would have expressed reservations about the distinction. (5)In the case of a contract determined by law, one explanation for the distinction may lie in the essence of why contracts may be terminated at law. An employment contract is terminable at law not because of a term which the parties have agreed to, but because the circumstances constituting the breach are in contradistinction to their agreement. (6)In the case of a termination of a contract of employment by a right conferred by law, the underlying principles are, in fact, the ordinary common law doctrines governing the discharge of contracts (B Creighton & A Stewart, Labour Law, 2010, 5th ed, The Federation Press 591). The termination of a contract in those circumstances is not brought about by a term of the contract per se. The contract comes to an end because the breach is fundamental or the contract repudiated such that the conduct of one party goes to the very essence of the existence of the contract. In the case of a contract warranting summary dismissal it is said the conduct goes to the "root of the contract" (see, for example, Koompahtoo Local Aboriginal Land Council and Anor and Sanpine Pty Ltd and Anor [2007] HCA 61; 233 CLR 115 ('Koompahtoo')), meaning that the breach is "such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract" (Buckley LJ in Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361 at 380; [1971] 2 All ER 216 at 232 quoted in Koompahtoo at [55]). (7)Correspondingly, it has been held that the employer's common law right to terminate an employment contract can only be engaged if the conduct of the employee "is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions..." (North v Television Corp Ltd (1976) 11 ALR 599 at 609). This principle was discussed by Gavan Duffy and Starke JJ in Adami v Maison De Luxe Ltd [1924] HCA 25; (1924) 35 CLR 143 at 155 ('Adami'): Was the plaintiff's conduct such as justified the company in determining, and treating as at an end, his contract of service with it? If there is a distinct refusal by one party to be bound by the terms of a contract in the future, the other party may treat the contract as at an end. Short of such refusal, the true principle to be deduced from all the cases is that you must ascertain whether the conduct of the party who has broken the contract is such that the other party is entitled to conclude that the party breaking the contract no longer intends to be bound by its provisions. This part of the rule was laid down by Lord Blackburn in Mersey Steel and Iron Co. v. Naylor, Benzon & Co., "where he says the rule of law is that where there is a contract between two parties, each side having to do something, 'if you see that the failure to perform one part of it goes to the foundation of the whole, it is a good defence to say, "I am not going to perform my part of it when that which is the root of the whole and the substantial consideration for my performance is defeated by your misconduct" (Rhymney Railway v. Brecon etc. Railway). (8)This principle was simply stated by Isaacs ACJ in Adami (at 152): Any conduct on the part of either inconsistent with the maintenance of the relation created amounts to a renunciation, and the other has a right to terminate it. (Adami has been followed, in that respect, in the more recent judgment of the High Court in Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693Concut at 704 and 707.) (9)A termination based upon a contractual provision that enables termination for breach raises additional considerations. (10)Where a contract expressly contemplates the right to terminate for breach that right is generally treated as additional to the general law bases for termination (J W Carter, Carter's Guide to Australian Contract Law, 2006 LexisNexis Butterworths, 283; see also N C Seddon and M P Ellinghaus, Cheshire and Fifoot's Law of Contract, 2002 8th ed LexisNexis Butterworths, 922). (11)Deane J noted in Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 at 55: A party entitled to terminate a contract for repudiation or fundamental breach may rely upon both a specific contractual right to terminate the contract and the common law right to terminate unless, as a matter of construction, the former excludes the latter: see, e.g., Rawson v. Hobbs (44); Shepherd v. Felt and Textiles of Australia Ltd. (45) and, generally, the cases referred to in Carter, Breach of Contract (1984), pars. 914,1006. More specifically, where a contractual right to terminate for past breach and the common law right to terminate for repudiation or fundamental breach exist concurrently, the reliance upon the contract involved in the exercise of the contractual right to terminate will not preclude the recovery of damages for loss of the future benefit of the contract by reason of repudiation or fundamental breach unless the contract expressly or impliedly so provides: cf. Yeoman Credit Ltd. v. Waragowski (46). (12)More recently the High Court in Concut held (at 699): ...regard should be had to ''the familiar principle of construction that clear words are needed to rebut the presumption that a contracting party does not intend to abandon any remedies for breach of the contract arising by operation of law''. Thus, an express provision for termination for breach in certain circumstances may be regarded as designed to augment rather than to restrict or remove the rights at common law which a party otherwise would have had on breach. (13)There is nothing, however, about the differences in remedies available upon termination, so described, which would suggest that a termination effected during the term of a fixed term contract in reliance upon a clause permitting termination for breach would alter the nature of the contract, namely, as one for a specified term. The more significant consideration is that a fixed term contract is, on this analysis, terminable at law or under a contractual term for breach in a manner which does not alter its character. 22In my view, these observations go some way towards illuminating the distinction between a contract term permitting termination more broadly and the common law right to terminate the contract for breach, as well as confirming the view of the plurality that the instant contract was not one for a specific period for the purposes of s 83(2) of the IR Act and reg 6(1)(a) of the Industrial Relations (General) Regulation 2001.

Boland AJ and Tabbaa C 23The appellant, Behka Custovic, has sought leave to appeal and, if leave is granted, to appeal from a decision of Commissioner Newall in Custovic v State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 1007. 24The Commissioner found that the appellant had been employed under a contract of employment for a specified period of time, being a period under six months. Hence, by virtue of the combined operation of s 83(2) of the Industrial Relations Act 1996 (IR Act) and reg 6(1)(a) of the Industrial Relations (General) Regulation 2001 (the Regulation), the Commission was without jurisdiction to deal with the appellant's application under s 84 of the IR Act claiming unfair dismissal.

First instance decision 25The factual background to the matter before the Commissioner was not in issue. It is neatly summarised in the decision at first instance at [5]-[17]: [5] Ms Custovic was first offered employment by the respondent on 11 July 2007. [6] That offer was in writing. The employment offered was said to be temporary employment pursuant to s 27 of the Public Sector Employment and Management Act 2002, ('the PSEM Act') for the period 30 July 2007 to 26 October 2007. [7] Ms Custovic accepted the offer on 15 July 2007 and commenced work with the respondent at its Blacktown office on the terms offered on 30 July 2007. [8] On or about the end date of the initial contract to which I refer above, on 26 October 2007, she was offered and she accepted a further contract of temporary full-time employment for a period of 3 months, on relevantly similar terms to the initial contract. [9] That process of offer and acceptance of short-term contracts continued for a number of years. On Ms Custovic's evidence during that time she was allocated four weeks' recreation leave each year and twelve days' study leave each year; she was paid accrued annual leave on the termination of her employment in 2013. [10] The effect of this arrangement was that Ms Custovic carried out work uninterruptedly for the respondent, although she changed the location of that work from Blacktown to Liverpool in August 2010, until 27 August 2013, on which day she was told in writing that her employment would end on that day. [11] At the date of her dismissal from employment, 27 August 2013, Ms Custovic had most recently been provided with a letter of offer of temporary employment for a period of three months from 27 July 2013 to 23 September 2013. That letter was provided to her only on 18 August 2013, although she had continued to work for the respondent from 27 July 2013, on which date her previous temporary contract had expired, onward. [12] The evidence discloses that Ms Custovic was provided with a series of back-to-back contracts of temporary employment of three months' duration each. It is not certain from the evidence whether in each case those further temporary contracts were offered and accepted before the expiry of the existing temporary contract. In some cases they were; in some cases they certainly were not; for example, the respondent offered Ms Custovic a temporary contract extending from 2 August 2010 to 31 October 2010 by way of a letter dated 5 August 2010. Ms Custovic, nevertheless, worked and was treated as an employee for all purposes on 2, 3 and 4 August 2010, which were working days. [13] The question is confused by the respondent placing in evidence, by way of attachments to an affidavit of Grant McClafferty, copies of letters to Ms Custovic which bear dates that the Department later submitted were not the correct dates of the letters, but the dates on which copies were printed for the purposes of making the affidavit. This carelessness in record-keeping does not assist in accurate findings of fact, although it has not ultimately served to obscure the facts here. [14] The factual circumstances immediately preceding the termination of Ms Custovic's employment were as follows. [15] On 29 June 2013 Ms Custovic was offered in writing a temporary contract extending from 28 June 2013 to 26 July 2013. [16] After the expiration of that contract - that is, on and from 27 July 2013 - Ms Custovic continued to carry out work for the respondent and be paid for her work. On 18 August 2013 Ms Custovic was advised in writing that 'approval has been given' for her temporary employment from 26 July 2013 to 27 September 2013. Having received that letter Ms Custovic continued to carry out her duties. [17] As I note above, on 27 August 2013 Ms Custovic was told in writing that her employment would end on that day. This decision does not inquire into the merits of that decision to end the employment and accordingly I do not here address the reasons given for that termination. I observe that it is common ground that the contract was brought to an end by the respondent; it is not said that it ended by effluxion of time. 26The Commissioner identified the relevant operative legislative provisions, being s 83(2) of the IR Act and reg 6(1)(a) of the Regulation. At [23] the Commissioner considered that: [23] The words 'employees engaged under a contract' appearing in the Regulation are significant. I say above that the Regulation concerns itself with the contractual position 'at the time of their dismissal'. In my view there can be no doubt from the plain language of the Regulation that it operates with regard to the contractual status of an employee at the time of the challenged dismissal. 27Newall C observed that if at that time Ms Custovic was "engaged under a contract of employment for a specified period of time" and the specified period in that contract was less than six months, her application was necessarily excluded by effect of the Regulation. 28The Commissioner further observed that at the date of the termination of employment (27 August 2013), Ms Custovic's circumstances were that she had on 18 August 2013 been offered in writing and had accepted - by working according to the terms of the offer without reservation or objection - a short-term temporary contract for a period of employment of three months. She was dismissed while working under that contract. In that respect, the Commissioner stated at [27]: [27] Absent anything else, on that basis Ms Custovic had, by the effect of the Regulation, no capacity to bring an application under s.84 of the Act in relation to the termination of that employment. 29The Commissioner proceeded to deal with the appellant's submission that the work performed by the appellant was performed in the context of a continuing employment relationship running over six years and that the contract at the date of termination should be so viewed. The appellant had called in aid the Public Sector Employment and Management Act 2002 (PSEM Act), which provides in s 7 that a staff member must fall into one of the categories provided namely, officer, temporary employee or casual employee. The appellant had submitted she was not a casual and did not fit into any of the categories of temporary employees in s 27 of the PSEM Act. Accordingly, she must be classified as an officer. 30The Commissioner rejected these submissions, finding the contracts of employment the appellant was offered and accepted could each be characterised as temporary employment; either as "employment for a specified task of project" within the meaning of s 27(3)(a) of the PSEM Act; or, alternatively, the employment could properly be seen as being "for any other temporary purpose" within the meaning of s 27(3)(f). The Commissioner found the appellant was not an officer because she had not been appointed as such: the PSEM Act sets out a comprehensive code for the appointment of an officer. Absent compliance with that code, a person does not become an officer (at [38]). 31At [48] Newall C stated that the Regulation required him to have regard to the contract of employment that was actually on foot at the date of the dismissal. The Commissioner observed that Ms Custovic was already employed when that contract was offered. Further, the contract purported to offer employment on a fixed-term basis in part retrospectively, for a period that Ms Custovic had already worked. The Commissioner found however, that: [51] [T]he contractual position on and from 18 August 2013, and therefore on the date of the termination, was that Ms Custovic was employed pursuant to a fixed-term contract providing for temporary employment for a period ending on 23 September 2013. [52] That is because on 18 August 2103 Ms Custovic was offered employment on that basis and accepted it by working in accordance with the offer, without, it should be noted, in any way placing in contest the contractual terms including the short-term nature of the contract or its end date. There was therefore mutual assent to the existence of a contract in those terms: Damevski v Giudice (2003) 133 FCR 438; Wilton v Coal and Allied Operations Pty Ltd [2007] FCA 725; (2007) 162 IR 264 at 325. 32At [54] and following, the Commissioner returned to the appellant's submission that there was, as a matter of substance, an employment relationship extending continuously over six years, and that whatever contractual form the employer sought to impose on the relationship ought be disregarded. The appellant relied on several authorities including D'Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19, Clarke v Mid-North Coast Health Service (Cambridge C, unrep, 1 October 1999), Nguyen v Oliveri Transport Services [2005] NSWIRComm 1121 and Fisher v Edith Cowan University (No 2) (1997) 72 IR 464. The Commissioner found none of the authorities assisted the appellant as they dealt with different factual circumstances or were otherwise not apposite. 33At [61]-[62] Newall C stated: [61] I do not find on the evidence that the short-term contracts were here used as a device, to create a factual situation that would exclude the applicant from redress for termination. Even were I to find that the respondent had offered contracts for that purpose, however, that would not lead to the contract as at the date of termination being found as a matter of law to be other than in its contractual terms. [62] In my view the Commission's attention must necessarily be upon the contract at the date of its termination. On my reading of the evidence and the law, at the date of the termination of her employment the applicant was employed under a fixed-term contract for a period of less than six months. 34In concluding his decision the Commissioner stated: [66] Given what I find above about the terms of the contract as at the date it was terminated, it necessarily follows that the application is excluded by effect of Regulation. I am bound to dismiss the application. [67] I observe that the respondent raised another limb of argument, based in part on reasoning drawn from the decision in Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267, going to an alleged inconsistency between the Act and the PSEM Act. Given the conclusions I have formed and set out above it is not necessary to determine that question and I do not take the time of the parties with my necessarily obiter views on the issue. [68] Lastly, the Commission invited the parties to address it on the effect, if any, on the consideration of this application of the legislative regimen in Part 7 of Chapter 2 of the Act. Both counsel provided cogent written submissions on the point. It will be apparent that, as the matter has emerged, the provisions of that Part have ultimately had no effect on the outcome. [69] The application made pursuant to s 84 by Ms Behka Custovic is dismissed.

Appeal ground 35There was only a single ground of appeal: That the Commissioner failed to apply the proper statutory test in determining whether the contract between the appellant and the respondent was in fact a contract not for a specified period being less than 6 months.

Leave to appeal 36The appeal raises an issue of general importance that has not been the subject of any authoritative decision in this jurisdiction. That is, whether a contract of employment that is purportedly a contract for a specified period of time (and, therefore, exempts an employee from Pt 6 of Ch 2 of the IR Act), maintains the character of a contract for a specified period of time despite making provision for the employer to unilaterally terminate the contract prior to the cessation date of the specified period of time. The appeal raises the further important issue as to whether the Commission has jurisdiction to entertain an unfair dismissal application by a temporary employee under the PSEM Act. 37The appellant's submissions on appeal relied, to a large extent, on the decision of von Doussa J in Andersen v Umbakumba Community Council (1994) 56 IR 102, where his Honour found that an unqualified right to terminate the contract of employment on notice rendered the contract not one for a specified term. Andersen was not an authority brought to the attention of Newall C and neither party placed reliance on it at first instance. 38It may be argued, therefore, that the appellant was bringing a different case on appeal. However, because the appeal raises issues of some importance and as the issues on appeal were fully ventilated, we consider it appropriate to grant leave pursuant to s 188 of the IR Act.

Notice of contention 39In its notice of contention the respondent contended the decision and orders of Newall C should be affirmed on grounds other than those relied upon by the Commissioner. The grounds were that: 1. The contract between the Respondent and the Applicant, made impliedly on 27 July 2013, contained a term that employment was as a temporary employee pursuant to section 27 of the Public Sector Employment and Management Act 2002 (NSW) (the "PSEM Act"). 2. The contract between the Respondent and the Applicant, made impliedly on 27 July 2013, was for the Applicant to provide additional assistance in a particular work area for the purposes of s 27(3)(c) of the PSEM Act. 3. Part 2.4 of Chapter 2 of the PSEM Act is incompatible with Part 6 of Chapter 2 of the Industrial Relations Act 1996 (NSW) (the "IR Act") such that Parliament did not intend that the Applicant, formerly employed as a temporary employee pursuant to section 27 of the PSEM Act and dismissed pursuant to section 30 of the PSEM Act, be able to challenge her dismissal by the Respondent pursuant to Part 6 of Chapter 2 of the IR Act.

Relevant legislation 40Section 83 of the IR Act provides: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or ... (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, (3) This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 or any such employee who is the Secretary of a Department or a Public Service senior executive under the Government Sector Employment Act 2013 or an executive officer to whom Part 5 of the Police Act 1990 applies. ... (5) In this Part: "dismissal" includes: (a) the threat of dismissal, and (b) in the case of a public sector employee-dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee. 41Section 84 of the IR Act relevantly provides: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. 42Regulation 6(1)(a) of the Industrial Relations (General) Regulation 2001 provides: 6 Other exemptions from unfair dismissal provisions (1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, ... 43Section 7 of the PSEM Act provided: 7 Categories of employment (1) Staff may be employed in a Department in the following categories: (a) officers-being persons employed in chief or senior executive positions or other staff positions in the Department, (b) temporary employees-being persons employed to carry out work in the Department on a temporary basis, (c) casual employees-being persons employed in the Department on a casual basis. (2) Temporary employees may be employed in following subcategories: (a) Departmental temporary employees-being persons employed under Part 2.4 to carry out work in a Department, (b) special temporary employees-being persons employed under Part 2.5 to carry out work for a political office holder. (3) The usual basis for the employment of staff in a Department is to be the employment of officers. (4) Subsection (3) does not apply to the employment of staff for the purpose of carrying out work for a political office holder. 44Sections 27 to 31 of the PSEM Act provided: 27 Employment of Departmental temporary employees (1) The appropriate Department Head may employ a person who has appropriate qualifications to carry out work in the Department for a particular period. (2) Persons employed under this Part are Departmental temporary employees. (3) A person may be employed as a Departmental temporary employee: (a) for the duration of a specified task or project, or (b) to carry out the duties of a position that is temporarily vacant, or (c) to provide additional assistance in a particular work area, or (d) in connection with the secondment or exchange of staff, or (e) to undertake a traineeship or cadetship, or (f) for any other temporary purpose. (4) The employment of persons under this Part is subject to: (a) section 7 (3), and (b) any other provision of this Act or the regulations concerning the employment of Departmental temporary employees. 28 Period of employment (1) The maximum period for which a Departmental temporary employee may be employed under this Part at any one time is 3 years. (2) The re-employment of a Departmental temporary employee is to be in accordance with such guidelines as are issued by the Commissioner from time to time. 29 Employment after selection on merit (1) In this section, the selection on merit of a Departmental temporary employee means employment after some form of open competition involving the selection of the employee as the person who, in the opinion of the appropriate Department Head, has the greatest merit among candidates for employment. (2) A Departmental temporary employee may only be employed for a period exceeding 12 months at any one time if the employee is selected on merit. (3) The Commissioner may exempt the employment of a person from subsection (2) if the Commissioner determines that the special circumstances of the case justify the exemption. 30 Termination of employment The appropriate Department Head may dispense with the services of a Departmental temporary employee at any time. 31 Appointment of long-term employees to officer positions (1) For the purposes of this section, a long-term employee is a Departmental temporary employee whose employment as such an employee falls within a continuous employment period of at least 2 years. (2) A long-term employee may, with the approval of the Commissioner, be appointed to an officer's position (other than a senior executive position) in a Department if the appropriate Department Head has made a recommendation in accordance with this section for the appointment of the employee to the position. (3) A recommendation for the appointment of a long-term employee to an officer's position may be made only if each of the following requirements is satisfied: (a) the employee must, at some stage of the temporary employment, have been selected to perform duties at a grade that is the same as (or similar to) the grade of the position concerned (whether or not the duties of the position are substantially the same as the duties performed during the temporary employment), (a1) the employee was performing duties at that grade following some form of open competition that involved the selection of the employee as the person who, in the opinion of the Department Head, had the greatest merit among the candidates concerned, (b) the rate of salary or wages proposed to be payable to the holder of the position concerned at the time of appointment must not exceed the maximum rate payable for Grade 12, Administrative and Clerical Division, of the Public Service, (c) the appropriate Department Head must be satisfied that ongoing work is available in respect of the employee in the Department, (d) the appropriate Department Head must be satisfied that the employee has the qualifications, experience, standard of work performance and capabilities to enable the employee to perform the duties of the position concerned, (e) (Repealed) (4) An appointment under this section is not an appointment to which section 19 applies. (5) Section 23 does not apply to an appointment under this section unless the Department Head otherwise directs in a particular case.

Consideration 45Before dealing with the substantive issues on appeal, we noted earlier that Andersen was not relied upon by either party in the proceedings before Newall C. Although the appellant relied upon that authority on the appeal, and the respondent addressed its application to the facts in the appeal, this was only done in a relatively superficial way. As it will be seen, reliance on Andersen raises issues that were not addressed by counsel. Accordingly, the Full Bench has not had the usual assistance from counsel in resolving those issues.

Two issues for determination 46There are only two issues requiring determination in this appeal. The first issue is whether the appellant was "engaged under a contract of employment for a specified period of time" where the specified period is less than 6 months. Where an employee falls within this class of employee the unfair dismissal provisions of the IR Act will not apply to the employee by virtue of the combined operation of s 83(2) of the Act and reg 6(1)(a) of the Regulation. In our opinion, in the circumstances in which it occurred, the termination of the appellant's contract of employment on a date prior to the end date of the contract meant that the exemption provided by reg 6(1)(a) did not apply. 47The second issue arises from the respondent's notice of contention where it was contended that Parliament did not intend that the appellant, formerly employed as a temporary employee pursuant to s 27 of the PSEM Act, and dismissed pursuant to s 30 of the PSEM Act, be able to challenge her dismissal by the respondent pursuant to Pt 6 of Ch 2 of the IR Act. We have found there is no inconsistency between the relevant provisions of the IR Act and PSEM Act that would preclude a temporary employee under the PSEM Act accessing the unfair dismissal provisions in the IR Act.

Whether the appellant was engaged under a contract for a specified period of time 48The evidence was that the appellant's contract of employment was in the form of a letter dated 16 August 2013. Relevantly, the letter, addressed to the appellant, stated: I am pleased to advise that approval has been given for your Temporary Full Time employment to the position of Client Service Officer, position number 20035988, for a period from 26.07.2013 up to 27.09.2013 in terms of section 27 of the Public Sector Employment & Management Act 2002. You will be paid salary at $67,010 p.a. and your contract hours will be 35.00 hours per week. Your employment will be reviewed during this period and your continued employment will depend on your satisfactory conduct and work performance and on the availability of work. If your temporary employment will be terminated earlier, you will be given one (1) weeks' notice. Please note that your temporary employment does not guarantee permanent appointment to the position. Please confirm acceptance of the position and conditions and salary stated by signing the attached copy of this letter and returning it to.... 49The Commissioner at first instance found that the contract of employment between the appellant and respondent came into existence on 18 August 2013 (when the appellant received the letter dated 16 August 2013 and continued to work without reservation or objection). The Commissioner found that the contract of employment was still in operation on 27 August 2013 (the date of termination). The contract of employment contained a specified period of employment from 26 July 2013 to 27 September 2013. 50The specified period of the contract of employment between the appellant and respondent was less than six months. It was three months. The appellant's employment did not continue for the period of the contract, but came to an end on 27 August 2013 by virtue of the operation of a provision in the contract, which provided: Your employment will be reviewed during this period and your continued employment will depend upon your satisfactory conduct and work performance and on the availability of work. If your temporary employment will be terminated earlier, you will be given one week's notice. 51The reason given for the termination of the appellant's employment was "poor performance and conduct". It appears the appellant was given two weeks' pay in lieu of notice. We note the termination of the appellant's employment occurred after some six consecutive years of back-to-back contracts of temporary employment of three months' duration each. 52The respondent submitted, inter alia: (as a matter of language, a contract of employment "for a specified period of time" also includes a contract with a specified start date, a specified end date and the right to terminate the contract before the specified end date - the operation of the contract (when terminated at either the specified end date or before the specified end date) is for a period of time that is specified in the contract; ... as a matter of logic and principle, a contract of employment with a specified start date and a specified end date and a right to terminate before the specified end date is not a contract which is indeterminate or indefinite in its period of operation - it is possible to ascertain the period of operation of the contract from the terms of the contract. ... The Appellant seems to imply that if a contract of employment has two possible end dates specified by the contract then the contract is not for a specified period of time. However, a contract of employment with an outer limit end date, and which permits termination on an inner end date, is still a contract for a specified period of time. If the contract of employment is terminated on the outer limit end date, the contract operates for a period of time specified in the contract (from the specified start date to the specified outer limit end date). Equally, if the contract of employment is terminated on the inner end date, the contract of employment operates for a period of time specified in the contract (from the specified start date to the inner end date calculated in accordance with a manner or formula specified in the contract). The fact that the inner end date may be the first day of the operation of the contract or (in the present case) the eighth last day of the operation of the contract does not detract from the proposition that the contract operates for a period of time that is specified in the contract. 53The phrase "for a specified period of time" was considered by Northrop J in Cooper v Darwin Rugby League Inc (1994) 57 IR 238. There his Honour was concerned with contractual provisions he described as follows (at 239): For the purposes of determining the motion, reference is made to two clauses of the terms of appointment which constitute the written terms of the contract of employment between the applicant and the respondent. The first clause is headed "Employment Period" and is as follows: Except in the case of misconduct, the period of employment is three (3) years from the confirmation date. The confirmation date is 10 December 1992. The other clause is headed "Notice of Termination" and is as follows: Except in the case of misconduct, and in accordance with the clause relating to the Employment Period in this document, at least one calendar month's notice by either party will terminate the employment. In the present case, the respondent, as the employer, terminated the employment of the applicant. The termination was not by agreement. The employment did not continue for the period of three years from 10 December 1992. 54The relevant legislative provisions were s 170CC of the Industrial Relations Act 1988 (Cth) and reg 30B made under s 359 of that Act. Section 170CC provided that: Section 170CC The regulations may exclude specified employees from the operation of specified provisions of this Division. An exclusion has effect only if: (a) it is permitted by paragraph 2 of Article 2 of the Termination of Employment convention; and (b) in respect of an exclusion permitted by paragraph 2 of that Article - it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article. 55The relevant part of paragraph 2 of Article 2 of the Termination of Employment Convention was as follows: 2. A Member may exclude the following categories of employed persons from all or some of the provisions of this Convention: (a) workers engaged under a contract of employment for a specified period of time or a specified task (emphasis added), ... 56Northrop J noted that Australia was the "Member" which has exercised the power conferred by s 170CC to exclude specified employees from the operation of the relevant provisions of Division 3. 57The relevant part of reg 30B was as follows: 30B (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of division 3 of Part VIA of the Act: (a) subject to subregulation (2) employees engaged under a contract of employment for a specified period of time ; (b) ... 58Northrop J proceeded to address the terms of the relevant contract (at 241): The terms of the contract are not elegantly expressed. The clause headed "Employment period" suggests the period of employment is for three years from 10 December 1992, but there is a qualification, namely that the employment could be terminated, presumably by the respondent, at any time "in the case of misconduct", presumably by the applicant. The clause headed "Notice of Termination" appears to give either party the right to terminate the employment on notice at any time during the three year period. This conclusion follows from the fact that the clause excludes termination in the case of misconduct where the employer terminates the employment "in accordance with the clause relating to the Employment Period in" the contract, but provides for termination of either party by notice. In the context, this must relate to notice given within the three year period. There is no reason to suggest that this clause is limited by implication to apply to any extension of the employment period after 10 December 1995. In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time within the meaning of paragraph 2 of Article 2 of the Termination of Employment convention and thus is not excluded, for the purpose of s170CC of the Act, from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. 59In Andersen, von Doussa J undertook a similar exercise to Northrop J in Cooper in that what was in issue was the phrase "a specified period of time" under reg 30B. 60His Honour considered the meaning of the phrase at 106: The ordinary meaning in the English language of 'to specify' is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd Edition ... A 'specified period of time' is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term ... A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time. 61The issue in Andersen was whether a contract, expressed as a fixed term contract, but which gave a right to the employer to terminate earlier upon the giving of notice, was in fact a fixed term contract. His Honour held at 106 that: In the present case cl. 3 and Schedule 1 of the Employment Agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl. 21(c) to bring the employment to an end on two weeks notice, and the right of the employer under cl. 21(d) to bring the employment to end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new Agreement is entered into pursuant to cl.29).Within the period stated in Schedule 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation date neither side could know with any certainty when the period of the contract of employment might come to an end. It is significant that the rights to terminate the contract of employment arising under cl.21(c) and 21(d) are not conditioned on a breach of any term of the contract. The rights are unqualified. Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end. In this case, however, the unqualified rights to terminate without reason under cl.21(c) and cl.21(d) make it clear, in my opinion, that the contract cannot be so characterised. 62The respondent submitted that Andersen focused inappropriately on the need for a fixed term or a determinate period of operation of the contract of employment (when a fixed term or a determinate period was not the language of the relevant class) and suggested incorrectly that a contract for a specified term, but capable of being terminated before the specified end date, operated for an indeterminate period of time (when the contract operated for a period of time specified in the contract). 63We disagree with this submission of the respondent. The contract in Andersen operated for an indeterminate period of time in the sense that the end date of the specified period was not necessarily the date on which the contract would come to an end. The contract could come to an end either at the end of the specified period or some earlier date, but when it would come to an end was indeterminate because it depended on a decision being made by one party or the other, at a time unknown, to terminate the contract. As Madgwick J described the contract in Andersen, it was not one "for" a specified period: it was merely a contract which would, in no circumstance, run beyond the specified period: Dadey v Edith Cowan University (1996) 70 IR 295 at 297. 64Moreover, we disagree with the respondent's submission that "a contract of employment with an outer limit end date, and which permits termination on an inner end date, is still a contract for a specified period of time". The inner end date, according to the respondent, is apparently the last day of any notice period provided for by the contract or the date on which payment is made in lieu of notice. Those dates could be any day between the date of commencement of the contract and the specified end date. A period between the specified commencement date of a contract and an end date that is unknown when the parties enter the contract could not be regarded as "a specified period of time" because the period is indeterminate. The contract could not be "for" a specified period of time. 65If the respondent's "inner end date" is able to define the end date of a specified period of time then it would seem any contract of employment that provides for a notice period to terminate the contract or that provides for payment in lieu of notice could be regarded as a contract for a specified period of time. 66It seems to us that a contract that contains a term allowing one or both parties the unqualified right to terminate the contract is inconsistent with the concept of a contract for "a specified period of time". A contract for a specified period of time will attract the exemption under reg 6(1)(a) of the Regulation. If such a contract is held to attract the exemption notwithstanding that it may be terminated by one or other party at any time, it undermines completely an employee's right to access relief for unfair dismissal. An employer could simply make a contract for a "specified period of time"; with a clause inserted to give an unqualified right to give notice of termination at any time, and an employee who is a party to the contract would be precluded from making an application under s 84 of the IR Act. 67We do not regard the exemption in reg 6(1)(a) of the Regulation as absolute in the sense that an exemption may be accomplished simply by placing a commencement date and cessation date in the contract of employment thereby preventing any scrutiny of the contract under the legislation's unfair dismissal provisions, which is what the respondent appeared to be contending. 68Cooper and/or Andersen have been followed or cited with approval in a long line of cases in various jurisdictions, none of which were relevantly referred to by the parties in the appeal. The cases include the following: D'Lima v Board of Management, Princess Margaret Hospital for Children; Dadey v Edith Cowan University; Salveron v Far West Aboriginal Progress Association [1997] IRCA 10; Skele v Kitchener Mining NL [1997] IRCA 75; J Grycan v Table Tennis Australia Incorporated - 834/99 M Print R7452 [1999] AIRC 576 Full Bench); Howarth v Mornington Peninsula Shire Council Print R0859, 22 January 1999 (Full Bench); Carey v Department of Justice and Attorney-General [2002] QIRComm 64; 169 QGIG 804; Jeannie Ledington re Jeannie Ledington v University of Sunshine Coast (2003) 127 IR 152; Geoffrey Organ v SPC Ardmona Operations Ltd - PR953160 [2004] AIRC 1119; Christopher Esam and Geoff Organ v SPC Ardmona Operations Ltd - PR957497 [2005] AIRC 338 (Full Bench); Paul Worthington v Curtin University of Technology - PR957589 [2005] AIRC 357;Innes v University of Adelaide (No.2) [2007] FMCA 1988; Elgin Nogaliza v Benale Pty Ltd ATF Fletcher Unit Trust t/as Fletcher International WA [2010] FWA 2667. 69In Andersen, it was determined that an unqualified right to terminate the contract on notice during the term of the contract rendered it not one for a specified term. In Grycan the Full Bench of the Australian Industrial Relations Commission dealt with an appeal from a decision of Commissioner Lewin. Lewin C considered whether a contract of employment between Mr Grycan and Table Tennis Australia ("TTA") that had a fixed duration of three years and two months was a contract for a specified period of time within the meaning of s 170CC(1)(a) of the Workplace Relations Act 1996 (Cth) and reg 30B(1)(a) of the Workplace Relations Regulations. 70The contract contained a provision (cl 5.2(c)) that allowed TTA to terminate the contract "by 30 days' notice in writing to the Coach, in the event funding from the ASC is withdrawn or restricted". The Commissioner found the contract was not one for a specified period of time. 71The Full Bench upheld the Commissioner's finding. The Full Bench stated at [7]-[10]: [7] In developing his submissions on the first point Mr Bourke, who appeared for the appellant, submitted that while an unqualified right to terminate a contract on notice renders the contract not one for a specified term (Andersen v Umbakumba Community Council (1994) 56 IR 102 at 106; Cooper v Darwin Rugby League Inc (1994) 57 IR 238, at 241), a qualified right to terminate the contract does not necessarily do so. Where the parties have a right to terminate for breach of its terms the contract may still be one for a specified period (Andersen IR at 107). Where the employee has a right to resign on notice the contract may be one for a specified term: see the conflicting decisions in Dadey v Edith Cowan University (1996) 70 IR 295 and Howarth v Mornington Peninsula Shire Council, 22 January, 1999 Print R0859 paras 11 & 12. Mr Bourke sought to persuade us that a principle could be deduced from a consideration of these and other cases that a qualified right to terminate based on the occurrence of some unforeseen event does not alter the character of what is otherwise a contract for a specified period of time. [8] Although Mr Bourke's argument was well researched and presented, we think that it is not helpful to attempt to devise principles of general application when the range of contracts to which they must be applied is potentially unlimited. We think that Commissioner Lewin's approach was correct. The primary question for consideration was whether, on its proper construction, the contract between the parties is a contract for a specified period of time. In construing the contract the Commissioner made a specific finding about the effect of clause 5.2(c). The finding was critical to his conclusion that the contract was not of the relevant kind. We turn now to the argument concerning that finding. [9] It was contended on behalf of the appellant, by reference to the recitals and clause 2 of the contract, that clause 5.2 (c) should be interpreted as permitting the appellant to terminate the contract in the event of a withdrawal or restriction of funding which impacts on the position held by Mr Grycan, the Coach. We reject this submission. The Commissioner's construction of clause 5.2 (c) seems to us to be not only open but also correct. The terms of the contract are to be objectively construed and in the absence of ambiguity their plain meaning is to be adhered to unless absurdity or clear injustice would result from doing so. There was no suggestion of any common understanding which might be relevant to the construction of the clause. We do not think the terms of the clause are ambiguous. They give the appellant the right to terminate the contract if funding from the Australian Sports Commission is withdrawn or restricted. The words cannot be read down so that the right to terminate only arises if funding of the Coach's position is withdrawn or restricted. [10] If, as we have concluded, the Commissioner's construction of clause 5.2 (c) is correct it was open to the Commissioner to characterise the contract as one not for a specified period. The matter is not without difficulty. There was no evidence concerning the appellant's financial affairs, the nature and source of its funds or fluctuations in funding. Evidence on matters such as that might have shed some light on the context in which the agreement was to operate. Despite these difficulties we have not formed the view that the Commissioner's characterisation of the contract was wrong. 72Grycan determined that a qualified or conditional right to terminate the contract prior to the specified end date of the contract - unconnected to any issue of breach - left it open to characterise the contract as one not for a specified period. Thus, on the basis of the decision in Grycan the conditional right to terminate the appellant's contract for shortage of work, for instance, would mean the contract was not one for a specified period of time. 73A question that exercised von Doussa J's mind in Andersen, although his Honour did not decide the issue, concerned a contract for a specified period of time that might contain a term that permitted termination for breach (at 107): Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end. 74It appears to have been accepted in a number of the cases earlier cited that where a contract provides for termination during its life on grounds that are analogous to the common law right to terminate an agreement for misconduct or other breach, the contract may still be a contract for a fixed period: see, for instance, Ledington. 75In V Trigar v La Trobe University - T2860 [2000] AIRC 509, the Full Bench found that where a contract of employment for a fixed term contained a term permitting termination "for cause based upon serious or wilful misconduct" that term entitled an employer to terminate the contract for conduct amounting to repudiation at common law. The Full Bench held that that term did not change the character of the contract as being one for a specified period of time. The Full Bench also expressed the opinion, albeit by way of obiter, that: [I]f the contract permitted termination for breach, regardless of whether the breach amounted to repudiation, the contract could still be described as one for a specified period of time. A reservation by one or both parties to the contract of a right to terminate the contract, either forthwith or subject to conditions, for breach of an obligation specified in the contract seems quite consistent with the contract being one for a specified period of time. 76The law in this area is in a somewhat unsatisfactory state. It is clear that a term in a contract that purports to be for a specified period of time, but gives a party an unqualified right to terminate the contract at any time during the specified period (by notice or payment in lieu), will mean that the contract is not one that will attract the exemption in reg 6(1)(a). 77However, as we have indicated, in some cases it has been held that where there is a qualified or conditional right to terminate a contract (for breach of a term of the contract) that is for a specified period of time prior to the end date of the specified period, that will not change the character of the contract. That is, it will continue to be regarded as a contract for a specified period of time and access to relief under the unfair dismissal laws will be precluded. 78On the other hand, if the fixed term contract contains a provision that permits the employer to terminate the contract prior to the end date of the specified period because funding has been withdrawn (see for example Grycan), the character of the contract changes such that it is no longer a contract for a specified period of time. 79In the former case, it seems that if the contract is terminated for breach (whether the breach is of a repudiatory nature or not) the tribunal administering unfair dismissal laws is precluded from dealing with any unfair dismissal claim because the contract continues to be regarded as a contract for a specified period of time. In the latter case, the tribunal is not so precluded. 80It is not immediately evident why the distinction referred to above has been made. We are unable to find any decision that provides a satisfactory explanation. In Andersen, as we earlier observed, von Doussa J commented that different considerations may apply where a contract of employment for a specified period of time contains a term which permits either side to terminate the contract on breach by the other side. His Honour's observation was merely obiter and it does not appear to have been the subject of any critical analysis in the later cases, despite it being decided in Trigar, for example, that if the contract permitted termination for breach, the contract could still be described as one for a specified period of time. 81The rationale for the distinction may be that a contract purporting to be for a specified period of time that gives a party an unqualified right to terminate the contract at any time during the specified period (by notice or payment in lieu), expressly contemplates and allows for termination of the contract prior to the end date of the specified period. As von Doussa J observed in Andersen, the period of the contract of employment is indeterminate. At any point during the specified period neither party to the contract could know with any certainty when the period of the contract of employment might come to an end. 82A similar observation may be made about a fixed term contract that contains a term giving a party the right to terminate the contract prior to the end date of the specified period on the happening of an event at some unknown point during the specified period. For example, a term that allowed for the termination of the contract if work ran out prior to the end date of the specified period. The contract specifically contemplates termination prior to the end of the specified period. Therefore, the contract could not be said to be a contract "for" a specified period. 83A contract may be terminable for breach in certain circumstances but not because the contract expressly contemplates the same, but because termination may be available, not by virtue of a contractual term, but as a common law remedy where a party, for example, repudiates the contract. 84We are merely speculating about the reason for the distinction and it does not fully answer the question why one contract loses its character as a contract for a specified period of time and, therefore, may be scrutinised as to whether any termination of the contract was unfair, but the other contract is not subject to scrutiny because the contract was terminated for breach and maintains its character as a contract for a specified period of time. 85It may be that no distinction should exist. In Cooper at 241, Northrop J stated: Of more importance generally is the fact that, even if the contract of employment was such a contract [that is, a fixed term contract], the respondent, possibly, was not entitled to the immunity conferred by s177CC of the Act. One thing is clear. The employment of the applicant was terminated by the unilateral act of the respondent. The employment was not terminated by agreement of the employer and employee. It was not terminated by effluxion of the period of time specified in the contract of employment. In these circumstances, it is only fair that the issue of whether the termination was lawful or not depends upon all of the facts leading up to the unilateral termination of employment by the respondent. The Court has not considered those facts. There is much to be said for the view that the exclusion of the operation of the provisions of the Act specified by regulation made under s177CC arises only where the term specified by the contract of employment has ended by effluxion of time. The relevant provisions cannot apply where the employment is terminated by agreement or by the unilateral action of an employee.... 86In Cooper, Northrop J suggested, albeit by way of obiter, that the exemption based on a contract being for a specified period of time might only apply where the contract is terminated by effluxion of time; that is, the contract reaches the end date of the specified period and automatically terminates. Where the contract is terminable for whatever reason (breach or otherwise) prior to the end date, the exemption would not apply and the tribunal would be free to scrutinise the termination in the context of applying the unfair dismissal laws. 87It is arguable that the approach discussed by Northrop J in Cooper is consistent with the purpose of the exemption in s 83(2) of the IR Act and reg 6(1)(a) of the Regulation. The term "dismissal" under Pt 6 of Ch 2 of the IR Act is not defined beyond what is stated in s 83(5). However, it has been judicially considered in Smith v Director-General of School Education [1993] NSWIRComm 134; (1993) 31 NSWLR 349 for the purposes of Pt 8 - Unfair Dismissals (ss 245 to 255) of Ch 3 of the Industrial Relations Act 1991 ("1991 Act"). These were the predecessor provisions to Pt 6 of Ch 2 of the IR Act. It was held in Smith that dismissal should be given its ordinary meaning, that being "the termination of services by the employer without the employee's consent". There is no reason to consider that "dismissal" should be given a different meaning in Pt 6 of Ch 2 of the IR Act. This meaning is consistent with termination of employment being "at the initiative of the employer" under Pt VIA of the Industrial Relations Act 1988 (Cth) and the International Labour Organisation's Termination of Employment Convention considered by Northrop J in Cooper at 240. 88An employer does not terminate an employee's employment, that is, "dismiss" the employee, when the employee's term of employment expires under a fixed term contract. Rather, the contract automatically terminates through effluxion of time. 89Thus, where the employee is engaged under a contract of employment for a specified period of time the contract of employment will terminate on the agreed end date of the specified period or automatically by effluxion of time. There is no rational reason why an employee whose contract expires at the end of an agreed period should have access to relief for harsh, unreasonable or unjust dismissal. Moreover, there is no "dismissal" by the employer without the employee's consent and, therefore, no recourse, in any event, to the unfair dismissal provisions of the IR Act. 90However, where a contract states that it is for a specified period of time, but contains a provision that entitles the employer to unilaterally terminate the contract without the employee's consent, and that provision is acted upon, that is a "dismissal" that brings it within Pt 6 of Ch 2 of the IR Act. 91In other words, where an employee is engaged under a contract of employment for a specified period of time and the contract runs its course, the contract will terminate on the end date of the specified period and the employee would have no recourse to the unfair dismissal provisions of the IR Act, not only because of the specific exemption in reg 6(1)(a) of the Regulation, but also because there was no dismissal. However, notwithstanding that a contract exists for a specified period, where the employer exercises a right under the contract to terminate the contract before its end date without the employee's consent, there is a dismissal that attracts the provisions of Pt 6 of Ch 2 of the IR Act. 92The alternative approach is that taken by von Doussa J in Andersen and that is to simply consider the words of the statute and the Regulation, namely, "employees engaged under a contract of employment for a specified period of time...". A contract that provides for it to be terminated by the employer without the employee's consent on the basis of some future event or circumstance occurring, the timing of the happening of which is uncertain or unknown when the contract is made, is not a contract "for" a specified period of time. Despite such a contract having a definite commencement date and a definite cessation date its character as a contract for a specified period of time is nullified by a term of the contract that permits the contract to be terminated before the cessation date of the specified period. 93Turning back to the circumstances under consideration in the present appeal, the contract reserved a right to the respondent to terminate the contract prior to the end date of the specified period where the appellant's conduct and work performance was not satisfactory and where work for the appellant was no longer available. The contract further provided that "If your temporary employment will be terminated earlier, you will be given one (1) weeks' notice." The appellant's employment was terminated, pursuant to the contract, "due to your continued poor performance and conduct" on a date prior to the cessation date of the contract. 94Given these facts, the employment of the appellant was terminable by the unilateral act of the respondent. The employment was not terminable by agreement of the employer and employee. It was not terminable by effluxion of the period of time specified in the contract of employment. On the approach discussed by Northrop J in Cooper, the appellant's contract was not a contract for a specified period of time and the termination of the employment contract by the employer without the consent of the employee would fall within the meaning of "dismissal" in Pt 6 of Ch 2 of the IR Act. 95The appellant's contract was terminated because she failed to adhere to a term of the contract that her conduct and work performance was to be satisfactory. It was not contended, either before Newall C or on appeal, that the appellant's contract was terminated for breach. However, in this case it does not matter whether there was a termination for breach or not. That is not the question. The question is whether the contract was for a specified period of time. 96The appellant's contract was not one for a specified period of time because it contained a term that allowed the employer to unilaterally terminate the contract where work for the appellant was no longer available. The contract specifically contemplated termination prior to the end of the specified period. As we earlier observed, a contract that purports to be a contract for a specified period, which provides for it to be terminated by the employer without the employee's consent prior to the end date of the specified period on the basis of some future event or circumstance occurring, the timing of the happening of which is uncertain or unknown when the contract is made, is not a contract "for" a specified period of time. 97In our opinion, the appellant's contract of employment was not one for a specified period of time such that the exemption in reg 6(1)(a) of the Regulation applied.

Jurisdiction 98Assuming for the purpose of dealing with the respondent's notice of contention that the contract between the respondent and the appellant, contained a term that employment was as a temporary employee pursuant to s 27 of the PSEM Act and assuming the contract was for the appellant to provide additional assistance in a particular work area for the purposes of s 27(3)(c) of the PSEM Act, the question is whether the provisions of Pt 6 of Ch 2 of the IR Act apply to the appellant's dismissal. In other words, is there an inconsistency or incompatibility between the relevant provisions of the PSEM Act and the unfair dismissal provisions of the IR Act such that it is apparent Parliament did not intend that the appellant could make an application under s 84 of the IR Act? 99Relying on Commissioner of Police v Eaton [2013] HCA 2,and to a lesser extent Public Service Association of NSW v Industrial Commission of NSW (1985) 11 IR 420, for the proposition that exclusion of "temporary employees" from the IR Act's unfair dismissal regime may arise by necessary intendment despite the absence of an express exclusion, the respondent submitted there were four indicators against a "temporary employee" engaged under the PSEM Act being able to challenge the fairness of his or her dismissal: (a) First, the descriptor of the person as a "temporary employee". A "temporary employee" is a person employed on a non-permanent basis for a specific task or a specified project, to fill a temporarily vacant position, to undertake a secondment, a traineeship or a cadetship or to provide additional assistance in a particular work area. (b) Secondly, the phrase "at any time" in section 30 of the PSEM Act. The phrase creates an unfettered power of dismissal (see Commissioner of Police v Eaton at [12]). (c) Thirdly, the remedies available on proof of an unfair dismissal. The remedies include an order for reinstatement under section 89(1) of the IR Act, for re-employment under section 89(2) of the IR Act, for payment for lost remuneration under section 89(3) of the IR Act and for continuity of employment under section 89(4) of the IR Act. These remedies are "clearly inconsistent" with the power to dispense with services under section 30 of the PSEM Act (see also Commissioner of Police v Eaton at [19]). (d) Fourthly, the generality of section 84 of the IR Act and the specific nature of section 30 of the PSEM Act. It is an accepted rule of statutory construction that the general provision must give way to the specific provision (see, for example, Commissioner of Police v Eaton at [21], [46]). The rule applies to provisions concerning rights of dismissal (see Commissioner of Police v Eaton at [21], [43], [63], [65], [76], [77]). 100The respondent submitted the four indicators created an incompatibility between the nature of employment under the PSEM Act (including an intended absence of rights of a "temporary employee" to challenge his or her dismissal) and a "temporary employee" being able to access the unfair dismissal regime. It was submitted the incompatibility revealed that Parliament did not intend (by necessary implication) that a "temporary employee" have access to the unfair dismissal regime. 101Eaton concerned whether the Industrial Relations Commission had the power to order relief under the IR Act's unfair dismissal provisions in circumstances where a probationary constable employed in the NSW Police Force had been dismissed by the Commissioner of Police under s 80(3) of the Police Act 1990. That provision is in the following terms: The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. 102A Full Bench of the Commission held that the Commission lacked jurisdiction and overturned the first instance decision. The applicant sought judicial review pursuant to s 69 of the Supreme Court Act 1970. The Court of Appeal quashed the decision of the Full Bench, holding that the Commission had jurisdiction, and remitted the matter to the Full Bench of the Commission to be determined according to law. By a grant of special leave, the Commissioner of Police appealed to the High Court. 103The plurality (Crennan, Kiefel and Bell JJ) held that the appeal should be allowed. Heydon J, in a separate judgment, also found the appeal should be allowed. Gageler J dissented, finding that the Court of Appeal was correct. 104It is not necessary to deal with every aspect of the decision in Eaton. The essential reasons for upholding the appeal appear in the judgment of Heydon J at [11]-[31] and the plurality at [72]-[78]. 105Heydon J stated there were four reasons why the appeal should be upheld (footnotes omitted): First, the language of s 80(3) points against the conferral of any jurisdiction on the Commission to deal with claims that a s 80(3) dismissal is harsh, unreasonable or unjust within the meaning of s 84(1) of the IR Act. Three key aspects of the language have this effect - "at any time", "without giving any reason" and "probationary" (at [11]). ... A second reason for concluding that a dismissal under s 80(3) of the Police Act does not permit the dismissed probationary constable to make an application under s 84(1) of the IR Act stems from the remedies available if a s 84(1) claim is made out. Those remedies include an order for reinstatement under s 89(1) of the IR Act, for re-employment under s 89(2), for payment for lost remuneration under s 89(3), and for continuity of employment under s 89(4). As the Full Bench said, these remedies are "clearly inconsistent" with the Commissioner's powers under s 80(3). Section 80(3) "is clearly indicative of an authority that reposes in the Commissioner to dismiss a probationary police officer without interference of any kind."(at [19]) For the two reasons given so far, it is necessary to reject the first respondent's submission that there is no inconsistency between s 80(3) of the Police Act and Ch 2 Pt 6 of the IR Act. (at [20]) ... There is a third reason why the Commission has no jurisdiction under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act. Section 80(3) of the Police Act deals with the specific and relatively narrow subject of dismissing probationary constables. Section 84(1) of the IR Act deals with the general subject of the remedies open to a broad range of employees dismissed harshly, unreasonably or unjustly. The general provision must give way to the particular provision. (at [21]) Fourthly, the Commissioner's powers under s 80(3) of the Police Act in relation to probationary constables stand in contrast with the Commissioner's powers under s 181D of the Police Act in relation to police officers. Section 181E of the Police Act provides that a non-probationary police officer who is removed from the NSW Police Force by an order under s 181D of the Police Act may apply to the Commission for a "review" of the order on the ground that the removal is harsh, unreasonable or unjust. That is a process which is distinct from the process of having a "claim" dealt with under s 84(1) of the IR Act. (at 22]) ... If a probationary constable dismissed under s 80(3) of the Police Act could apply to the Commission under s 84(1) of the IR Act, that probationary constable would enjoy a right of review superior to that of a confirmed constable. Indeed, that probationary constable would enjoy a right of review superior to that of any police officer of higher rank. That would, in turn, produce remarkable anomalies. (at [25]) One anomaly is that if dismissed probationary constables could make applications under s 84(1) they would be in a better position than non-probationary officers. The rights of review s 181E gives to the latter in relation to s 181D removals would be more qualified than those s 84(1) gives to the former in relation to s 80(3) dismissals.... (at [26]) 106In the joint judgment of Crennan, Kiefel and Bell JJ their Honours stated at [72]-[78] (footnotes omitted): [72] The indications in the Police Act point towards a legislative intention that a decision made under s 80(3) to dismiss a probationary constable is not to be subject to merits review by the IR Commission under Pt 6 of the IR Act. [73] The starting point is the terms of s 80(3) in the context of the status of a probationary constable and the responsibilities vested in the Commissioner. A probationary constable is seeking to achieve confirmation. During this period, the probationary constable's conduct is monitored and subject to report, so that the Commissioner may determine whether the person is suitable for the role of a police officer within the NSW Police Force. The position of a probationary constable may be contrasted with that of a police officer who has achieved confirmation and whose history in the Police Force may need to be taken into account by way of review of a dismissal. [74] The terms of s 80(3), as the Commissioner argues, are strongly suggestive of an unfettered power to dismiss. The fact that the Commissioner is not obliged to give any reasons, whilst not conclusive of an intention that there be no merits review of a decision to dismiss, implies an unfettered power. It stands in contrast with the requirement for reasons, imposed by Pt 9 of the Police Act, where a confirmed police officer is dismissed. [75] The lack of a requirement for reasons also points to some incoherence with the provisions of Pt 6 of the IR Act concerning the matters to be taken into account by the IR Commission in determining whether a dismissal is harsh, unreasonable or unjust. The terms of s 80(3) suggest that such considerations are not to be in question. The intended legal effect of the Commissioner not being required to give reasons is that the Commissioner's decision cannot be impugned on account of any particular reason. [76] The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material. [77] These are not insignificant matters. They raise important questions concerning the interaction between Pt 6 of the IR Act and the Police Act and as to the internal consistency of the Police Act. If Pt 6 applied to probationary constables, confirmed police officers' claims of unfair dismissal would be dealt with under the particular provisions of Pt 9 of the Police Act, while probationary constables' claims would be dealt with under the general provisions of the IR Act, which were not considered by the legislature in enacting the Police Act to be suited to the same topic. An anomalous position would result whereby probationary constables would enjoy greater procedural rights than confirmed police officers, as the Full Bench correctly observed. [78] In accordance with ordinary rules of construction concerning the internal operation of a statute, the Police Act should be construed in a way which best achieves a harmonious result. The same principle of consistency informs the construction of two statutes which may share a field of operation. 107Section 83(1) of the IR Act provides that Pt 6 of Ch 2 applies to the dismissal of "any public sector employee". We do not understand there to have been an issue that the appellant was a public sector employee. "Public sector employee" is defined in the Dictionary to the IR Act to include "an employee of a public authority and a member of the Public Service, the NSW Police Force, the NSW Health Service or the Teaching Service." The definition makes no distinction between a temporary employee and any other class of employee. It would seem to follow then that there must be an express exclusion to be found elsewhere in the IR Act or the PSEM Act or that a temporary employee is excluded by necessary implication having regard to the terms of the two statutes. 108Section 83(2) of the IR Act provides for certain classes of employees to be exempt from Pt 6 of Ch 2 by the Regulation. Regulation 6(1)(a) of the Regulation exempts, inter alia, employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months. Regulation 6(1)(d) exempts employees engaged on a casual basis for a short period. 109Section 83(3) also exempts from Pt 6 of Ch 2 "any such employee who is the Secretary of a Department or a Public Service senior executive under the Government Sector Employment Act 2013" (which is the successor Act to the PSEM Act). 110Whilst the IR Act makes express provision for exemption from Pt 6 of Ch 2 of an employee who is the Secretary of a Department or a Public Service Senior Executive, there is no express exemption in the IR Act or the Regulation of a temporary employee employed under s 27 of the PSEM Act from the provisions of Pt 6 of Ch 2 of the IR Act. 111No express exemption for temporary employees from the provisions of Pt 6 of Ch 2 of the IR Act appears in the PSEM Act. There was, however, an express exemption for "special temporary employees" employed under Pt 2.5 of Ch 2 of the PSEM Act in s 35(3): 35 Industrial Arbitration or legal proceedings excluded (3) Part 6 (Unfair dismissals), Part 7 (Public sector promotion and disciplinary appeals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a special temporary employee. 112A "special temporary employee was defined in s 33 of the PSEM Act: 33 Employment of special temporary employees (1) The Director-General of the Department of Premier and Cabinet may, if of the opinion that it is necessary to do so, employ a person who has appropriate qualifications to carry out work for a political office holder. (2) Persons employed under this Part are special temporary employees. (3) The employment of persons under this Part is subject to any provisions of this Act or the regulations concerning the employment of special temporary employees. (3A) Without limiting subsection (3), the employment of special temporary employees is to be in accordance with such guidelines as are issued by the Commissioner from time to time. (4) The instrument of employment of a special temporary employee must specify the name of the political office holder concerned. (5) This section does not prevent the appointment or employment of staff to or in an office of a political office holder in any other manner. 113Section 34 of the PSEM Act provided: 34 Period of employment of special temporary employees (1) A person may be employed as a special temporary employee for an indefinite term or for a term specified in the instrument of employment. (2) However, the employment of a special temporary employee terminates: (a) if the political office holder concerned dies, or (b) if the political office holder concerned ceases to hold the office by reason of which he or she was a political office holder (even if he or she immediately or subsequently becomes a political office holder after ceasing to hold that office), or (c) on the day appointed for the taking of the poll for the next general election, or (d) if the employee resigns by letter addressed to the Director-General of the Department of Premier and Cabinet, or (e) if the services of the employee are dispensed with. (3) The Director-General of the Department of Premier and Cabinet may direct in a particular case that the employment of a special temporary employee that would otherwise terminate because of the operation of subsection (2) (a), (b) or (c) does not terminate. (4) The Director-General of the Department of Premier and Cabinet may dispense with the services of a special temporary employee at any time. 114It is noteworthy that the legislature found it necessary to create another class of temporary employee in the form of a special temporary employee and to create special employment arrangements for that employee, which are not subject to the jurisdiction of the Industrial Relations Commission (including the Commission's unfair dismissal jurisdiction). The very fact this was considered necessary points to the likelihood that temporary employees, whose employment conditions are subject to the Commission's jurisdiction (see, for example, the Crown Employees (Public Sector Conditions of Employment) Reviewed Award 2009, which provides for the conditions of employment for temporary employees), are not excluded from the Commission's unfair dismissal jurisdiction. 115The PSEM Act also provided that Executive Officers were excluded from the unfair dismissal regime: s 72; litigation as to the filling of positions was excluded: s 22; and excess employees were excluded from the unfair contract regime: s 103A. 116We further observe that s 160(1)(a) of the PSEM Act provided: 160 Certain other Acts not to be affected (1) This Act does not affect the operation of the following Acts: (a) the Industrial Relations Act 1996, ... 117Thus, there were express exemptions from the unfair dismissal regime of the IR Act for the Secretary of a Department, a Public Service Senior Executive, Executive Officers, special temporary employees and casual employees - all classes of employees subject to the PSEM Act, but no express exemption for a temporary employee. 118Notwithstanding the absence of any express provision excluding temporary employees from the application of Pt 6 of Ch 2 of the IR Act, the respondent submitted their exclusion may still arise by necessary intendment: Eaton. We turn to the respondent's four indicators. 119The first was the descriptor of the person as a temporary employee. If the point of this indicator was to draw a parallel with "probationary employee" considered in Eaton, we think the point fails. In Eaton, Heydon J described probationary employment in the following terms at [16]: A probationary period is a "period of testing or trial for the purpose of ascertaining whether [a person] has the necessary qualifications for a permanent appointment, and the word 'probation' itself involves the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed." A probationary constable is one whose qualifications for non-probationary status are put to proof, investigated, examined, tested or tried. Those qualifications include aptitude, competence, integrity, performance and conduct. The probationary status of probationary constables is another factor pointing to the conclusion that s 84(1) of the IR Act does not extend to conferring on probationary constables a right to claim that a dismissal is harsh, unreasonable or unjust. 120In contrast, a temporary employee may be employed for up to three years at any one time following which the employee may be re-employed: s 28 of the PSEM Act. A temporary employee is selected for employment on merit, that is, the person with the greatest merit among candidates for employment: s 29. Section 31(1) provides a "long-term employee" is a Departmental temporary employee whose employment as such an employee falls within a continuous employment period of at least 2 years. Section 31(2) provides: 31 Appointment of long-term employees to officer positions (2) A long-term employee may, with the approval of the Commissioner, be appointed to an officer's position (other than a senior executive position) in a Department if the appropriate Department Head has made a recommendation in accordance with this section for the appointment of the employee to the position. 121The fact that an employee is referred to as temporary for the purpose of distinguishing the employee from an officer or casual employee and who may only be employed for a maximum period of three years at any one time, is not an indicator that the legislature intended temporary employees to be excluded from the protections available to employees under the IR Act's unfair dismissal regime. 122The respondent's second indicator was that the phrase "at any time" in s 30 of the PSEM Act created an unfettered power of dismissal: Eaton at [12]. We do not think that Heydon J in Eaton was determining that the phrase "at any time" meant that whenever that phrase was employed in the context of an employer's right to dismiss, the phrase provided a right to dismiss unfettered by any other consideration to be drawn from the statute. 123It is important to bear in mind that Heydon J was considering the phrase "at any time" in the context of probationary employment, which involves "the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed." Temporary employment under the PSEM Act did not involve a period of trial and testing to determine whether the employee was fit for appointment as an officer. The PSEM Act provided separately for probationary appointments: see s 23. 124The phrase "at any time" was considered by the High Court in Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44. There the High Court was concerned with s 51 of the Police Service Act 1990, which relevantly provided that a Deputy Commissioner of Police may be removed from office at any time by the Governor, on the recommendation of the Commissioner submitted with the approval of the Minister. The principal issue appears to have been whether the exercise of the power of removal conferred by s 51 of that Act was conditioned upon the observance of the rules of natural justice or whether s 51 embodied the "at pleasure" principle, and excluded the requirements of natural justice. Gleeson CJ stated at [21] and [25]: [21] Section 51 relevantly provides that a Deputy Commissioner may be removed from office at any time by the Governor, on the recommendation of the Commissioner submitted with the approval of the Minister. That this provision reflects, and gives partial effect to, the common law principle discussed above is not in doubt. The words "at any time" mean that, if the requirements of the statute are observed, no period of notice of termination is required. The officer's contract assumes valid appointment to, and continued holding of, office, but appointment and removal occur by force of the Act, not the contract. ... [25] There are no plain words of necessary intendment, in s 51 of the Act or elsewhere, that indicate that the power of removal conferred by s 51 may be exercised without giving a Deputy Commissioner a fair opportunity to be heard. What is involved is not removal in the exercise of monarchical prerogative. What is involved is a statutory power which requires certain procedures to be followed. It is conceivable that there may be cases of a valid exercise of the power for reasons, or on the basis of considerations, that are of such a nature that there would be nothing on which a Deputy Commissioner could realistically have anything to say. It is clear, however, that the power may also be exercised for reasons about which a Deputy Commissioner could have a good deal to say. The very breadth of the statutory power seems to me to be an argument for, rather than against, a conclusion that it was intended to be exercised fairly. So also is the consideration that, in practice, the power would normally be exercised for cause, even though such cause is not legally necessary. 125The plurality (McHugh, Gummow and Hayne JJ) found that s 51 did not displace "an obligation of procedural fairness upon the decision-making power of the Commissioner exercised in this case." (at [88]). Callinan J found also that s 51 did not exclude the rules of procedural fairness (at [118]). At [139] Callinan J stated: Words of necessary intendment to the contrary of procedural fairness, do not, as I have said, appear in Div 6 of Pt 5 (ss 48-54) or elsewhere in the Act. The words "at any time" in s 51 do not convey it. Those words may make it clear that the making of a contract by way of instrument of appointment, for a term does not mean that the term will necessarily run its length, but that does not mean that the scope, purposes and objects of the Act should be taken to be irrelevant to a removal at any time, otherwise than in accordance with the rules of natural justice adapted of course according to the scope, purposes and objects of the Act, and its intendment with respect to removal as stated by the express statutory language that deals with the topic. 126Jarratt, in our opinion, makes it reasonably clear that s 30 of the PSEM Act is not a statutory incarnation of the "dismissal at pleasure" principle. It merely indicates no notice need be given to dispense with the services of a temporary employee, but where those services are to be dispensed with it must be done according to the rules of procedural fairness. 127It is noteworthy that s 30 of the PSEM Act does not provide that the services of a temporary employee may be dispensed with without the need to give reasons, which was the case with s 80(3) of the Police Act. Both Heydon J and the plurality considered this significant. At [13] Heydon J stated: The next key expression is "without giving any reason". It is often impossible to assess whether a dismissal was harsh, unreasonable or unjust without examining the reasons for it. And in many instances it is impossible to assess what the reasons for a dismissal were unless the person who made the decision to dismiss states the reasons. The capacity of the Commissioner to dismiss probationary constables "without giving any reason" suggests that there is to be no examination of whatever the Commissioner's reasons were. Hence the light cast by them on the harshness, unreasonableness or injustice of the decision is unavailable. In turn, the harshness, unreasonableness or injustice must be immaterial to the lawfulness of the decision. Review of the dismissal is not available on one of those grounds. 128At [74]-[75] the plurality stated: [74]...The fact that the Commissioner is not obliged to give any reasons, whilst not conclusive of an intention that there be no merits review of a decision to dismiss, implies an unfettered power. It stands in contrast with the requirement for reasons, imposed by Pt 9 of the Police Act, where a confirmed police officer is dismissed. [75] The lack of a requirement for reasons also points to some incoherence with the provisions of Pt 6 of the IR Act concerning the matters to be taken into account by the IR Commission in determining whether a dismissal is harsh, unreasonable or unjust. The terms of s 80(3) suggest that such considerations are not to be in question. The intended legal effect of the Commissioner not being required to give reasons is that the Commissioner's decision cannot be impugned on account of any particular reason. 129The respondent's third indicator was that the remedies provided by s 89 of the IR Act were "clearly inconsistent" with the power to dispense with services under s 30 of the PSEM Act (see also Eaton at [19]). 130The reference to Eaton at [19] was a reference to Heydon J indicating his agreement with the Full Bench of the Commission that s 80(3) "is clearly indicative of an authority that reposes in the Commissioner to dismiss a probationary police officer without interference of any kind" and that remedies of reinstatement, re-employment or compensation were "clearly inconsistent" with the exercise of that authority. 131As we earlier observed, dismissal for the purposes of Pt 6 of Ch 2 of the IR Act includes dispensing with the services of a public sector employee (s 83(5)(b)). Section 30 of the PSEM Act is not indicative of an authority reposing in a departmental head to dismiss a temporary employee without interference of any kind. The nature of temporary employment under the PSEM Act is of quite a different character to probationary employment under the Police Act. 132The respondent's fourth indicator was the generality of s 84 of the IR Act and the specific nature of s 30 of the PSEM Act. However, we fail to see where any inconsistency arises between s 30 and s 84. A departmental head may dispense with the services of a temporary employee at any time, but to dispense with services is a dismissal within the meaning of Pt 6 of Ch 2 of the IR Act and the phrase "at any time", for the reasons we have explained, is not exclusionary of the Commission's powers under Pt 6 of Ch 2. Moreover, we think that, in the absence of any indication of repugnancy, some force has to be accorded to s 160 of the PSEM Act, which provides that that Act does not affect the operation of the IR Act. 133As it was observed by Fullagar J in Butler v Attorney General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 276, there is a very strong presumption that "the State legislature did not intend to contradict itself, but intended that both Acts should operate". 134We referred earlier to the respondent's reliance on Public Service Association of NSW v Industrial Commission of NSW ("the PSA Case"). The nature and extent of the respondent's reliance on this authority was not something upon which the respondent chose to elaborate. 135The PSA Case was referred to by the Full Bench of the Commission in Commissioner of Police v Eaton [2011] NSWIRComm 51 (which is the decision considered by the High Court in Eaton). The reference was made in the context of considering s 218 of the Police Act, which was in the following terms: 218 Industrial Relations Act 1996 not affected (1)The Industrial Relations Act 1996 is not affected by anything in this Act. (2)Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996. It will be noted that s 218(1) is in similar terms to s 160 of the PSEM Act. 136The Full Bench in Commissioner of Police v Eaton stated: [58] The principles to be applied in considering whether there is inconsistency in provisions of the kind contained within s 218 in the context of more specific provisions of other legislation are well known. They are discussed in the High Court of Australia in Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353. The test, which seemingly the Court applied in that case, was to consider whether or not the two pieces of legalisation under consideration could "work together"(at [11]). We have found the decision of the New South Wales Court of Appeal in Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 more helpful. However, in considering that decision, care needs to be taken to accommodate the focus of attention which was on the particular words used in the Public Service Act, namely "unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act...." [59] In his judgment, Street CJ referred first to Rose v Hvric and then observed that the words "expressly provided" "merely serve to emphasise the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests..." (quoting from Rose v Hvric ). Street CJ also referred to whether or not there was an implied contradiction in the two pieces of legislation such that "the two cannot live together." [60] Street CJ concluded that particular provisions contained within the Public Service Act, which dealt specifically and in a positive manner with the circumstances of redundancy, necessarily contained "a negative implication precluding the making of an Award inconsistent in operation, or in contradiction of the enactments...." (at 636). [61] A superficial review of Pt 9 of the Police Act is sufficient to enable a conclusion that s 218(1) cannot mean what is prima facie expressed in the subsection. There are specific provisions which we have earlier set out that directly impact upon the application of certain provisions of the Act to the circumstances set out in Pt 9. A ready example is s 179(1) of the Police Act which particularises certain provisions of the Act, which do not have effect. In these circumstances, it cannot be said that the Act is not affected by anything in the Police Act. It is clearly affected. It is erroneous to argue that the provisions of s 179 of the Police Act have no effect because of the application of s 218 of the Act. [62] Accordingly, s 218 must have some other meaning. Its construction must be approached in the same manner adopted by the Court of Appeal in the Public Service Association case. That is, positive statements about certain matters will have the necessary effect of negativing the jurisdiction and powers created by the Act. [63] We would construe this provision as leaving intact the power of the Commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act. This conclusion is consistent with the judgment of the Full Commission of the Industrial Commission of South Australia in Nassar (at 395). 137Heydon J, in Eaton, regarded the Full Bench's approach to s 218 as being correct (at [34]). The plurality also regarded the Full Bench as being correct (at [91]). 138We presume the respondent's reliance on the PSA Case is based on the proposition that because a departmental head may dispense with the services of a temporary employee at any time, that contains a negative implication overriding s 160 of the PSEM Act and ousting the Commission's unfair dismissal jurisdiction. 139The proposition could only be correct if one were to construe "at any time" as akin to the "at pleasure" principle giving the departmental head unfettered power to dismiss. That is clearly not the case for the reasons we have explained. 140We find that there is no inconsistency between s 84 of the IR Act and s 30 of the PSEM Act.

Orders 141The Full Bench makes the following orders: (1)Leave to appeal is granted. (2)The appeal is upheld. (3)The decision and orders of Newall C in Matter No IRC 760 of 2013 are quashed. (4)Matter No IRC 760 of 2013 is remitted to Newall C to be dealt with according to law.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2014

Industrial Relations Act 1988(Cth)

Workplace Relations Act 1996(Cth)

Public Sector Employment and Management Act 2002(NSW)

[1993] NSWIRComm 134

Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 48

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