Morrison v Southern Colliery Maintenance Pty Ltd

Industrial Relations Commission (NSW)|2009-10-02|Before: Boland J

CITATION: Morrison v Southern Colliery Maintenance Pty Ltd [2009] NSWIRComm 171 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: Rodney Dale Morrison (Prosecutor/Respondent on the Motion) Southern Colliery Maintenance Pty Ltd (Defendant/Applicant on the Motion)

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - Interlocutory proceedings - Allegation that defendant contravened s 8(2) of the Occupational Health and Safety Act 2000 - Notice of motion challenging prosecutor's authority to prosecute - Whether prosecutor was employed under Chapter 2 of Public Sector Employment and Management Act 2002 as required by s 145 of the Coal Mine Health and Safety Act 2002 in order to be taken to have been appointed as an Inspector for the purposes of s 47B of the Occupational Health and Safety Act - Construction of Chapters 1A, 2 and 3 of Public Sector Employment and Management Act - Meaning of 'governed' - Notice of motion dismissed.

Coal Mine Health and Safety Act 2002 Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Public Sector Employment and Management Act 2002 Public Sector Employment Legislation Act 2006 Supreme Court Act 1970

Chan v Cresdon Pty Ltd [1941] VLR 200 CASES CITED: Morrison v Milner [2009] NSWIRComm 57; (2009) 181 IR 443 Wilkinson v Feldworth Financial Services Pty Limited (1998) 29 ACSR 642

Mr M Leeming SC with Mr D O'Neil of counsel (Prosecutor/Respondent on the motion) Crown Solicitor LEGAL REPRESENTATIVES: Mr I Neil SC with Mr D Nagle of counsel (Defendant/Applicant on the Motion) Access Business Lawyers

RODNEY DALE MORRISON v SOUTHERN COLLIERY MAINTENANCE PTY LTD

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 On 2 July 2008, Rodney Dale Morrison made application for an order requiring Southern Colliery Maintenance Pty Limited ('the defendant') to appear before the Industrial Court in answer to a charge that it had contravened s 8(2) of the Occupational Health and Safety Act 2000 ('OHS Act'). It was alleged in the application that on 7 July 2006 the defendant, being an employer, had failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at the defendant's place of work. The charge related to an incident in which a worker was injured when scaffolding collapsed at the Appin Colliery in Douglas Park. 2 By notice of motion filed on 25 March 2009 the defendant moved the Court for: 1. A declaration that the proceedings in Matter No IRC 1033 of 2008 ( the Proceedings ) were instituted by a person who was not employed or qualified to be employed under Chapter 2 of the Public Sector Employment and Management Act 2002, and therefore not qualified to be validly appointed under s.145(1)(d) of the Coal Mine Health and Safety Act 2002.

Further to Order 1, a declaration that the Proceedings were not instituted by a person duly authorised to institute proceedings for an offence under s.47A of the Occupational Health and Safety Act 2002 (sic).

Further to Order 2, a declaration that the Order made on 3 July 2008 charging the Defendant with an offence under the Occupational Health and Safety Act is invalid and null and void ( the Charge ).

Further to Order 3, a declaration that the Industrial Court of New South Wales is without jurisdiction to hear or determine the Charge or the Proceedings.

Further to Order 4, an order that the Proceedings be dismissed or stayed permanently.

An order that the prosecutor pay the defendant's costs of and incidental to the Proceedings, including of this application. 3 The essence of the defendant's challenge was that the prosecutor, Mr Morrison, was not 'employed under' Chapter 2 of the Public Sector Employment and Management Act 2002 ('PSE&M Act') as required by s 145(1)(d) of the Coal Mine Health and Safety Act 2002 ('CMH&S Act') and, therefore, his appointment as a prosecutor was invalid, thereby rendering the charge invalid and null and void. Mr Morrison contended that his appointment was valid. The legislation

4 Section 4 of the OHS Act defines an Inspector as meaning 'an inspector appointed under Division 1 of Part 5'.

5 Section 47 is in Div 1 of Pt 5. It provides for the appointment of inspectors otherwise than in connection with mining workplaces or coal workplaces: 47 Appointment of inspectors (otherwise than in connection with mining workplaces or coal workplaces) (1) WorkCover may appoint as inspectors for the purposes of this Act and the regulations any of the following persons: (a) a statutory officer,

(d) a person belonging to a class of persons prescribed by the regulations. (2) A person appointed as an inspector under this section is not authorised to exercise functions under this Act in relation to a mining workplace or a coal workplace. 6 Section 47B, also to be found in Div 1 of Pt 5, provides for the appointment of inspectors in connection with coal workplaces, which is defined as meaning 'a place of work to which the Coal Mine Health and Safety Act 2002 applies'. Section 47B is in the following terms: 47B Appointment of inspectors in connection with coal workplaces

A person appointed as a government official under the Coal Mine Health and Safety Act 2002 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a coal workplace, but may exercise functions under Division 2 in relation to premises other than a coal workplace for the purpose of investigating any matter under this Act in relation to a coal workplace. 7 There was no issue that the place where the incident occurred on 7 July 2006 was a coal workplace and that, therefore, the CMH&S Act applied. 8 Section 106 of the OHS Act is the legislative basis of a person's authority to prosecute and that includes an inspector: 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer. 9 Section 3 of the CMH&S Act defines an inspector as meaning 'a person appointed as an inspector under section 145'. 10 Section 145 of the CMH&S Act provides: 145 Appointment of government officials (1) The Minister may appoint a person employed under Chapter 2 of the Public Sector Employment and Management Act 2002 as: (a) the Chief Inspector, or (b) an inspector, or (c) a mine safety officer, or (d) an investigator. (2) An instrument appointing a person under this section may limit the functions that the person has. (3) A person appointed under this section is to be issued with an identification card under section 48 of the Occupational Health and Safety Act 2000. 11 'Senior executive position' is defined in s 3 of the PSE&M Act as meaning 'a position referred to in section 65 and senior executive officer means a person holding such a position.' 12 Section 4A is in Ch 1A of the PSE&M Act. Chapter 1A was inserted by the Public Sector Employment Legislation Act 2006 and assented to on 13 March 2006. The section provides: 4A The Government Service (1) The Government Service of New South Wales consists of those persons who are employed under this Chapter by the Government of New South Wales in the service of the Crown. (2) This Chapter does not affect any other means (statutory or otherwise) by which a person may be employed in the service of the Crown. 13 Section 4B is also in Ch 1A and provides: 4B Employment of staff in the Government Service

(1) The Government of New South Wales may, subject to subsection (2), employ staff in any Division of the Government Service.

(2) The employment of staff in the Government Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff.

(3) Without limiting the purposes for which staff may be employed in the Government Service, staff may be employed by the Government of New South Wales under this Chapter in a Division to enable a statutory corporation to exercise its functions. 14 Section 4K(1)(d) is also in Ch 1A and provides: 4K Transitional provision - construction of superseded references

(1) In any other Act, or in any instrument made under any Act or in any other instrument of any kind (whether enacted, made or executed before or after the commencement of this section): … (d) a reference to the employment of a person under Chapter 2 of this Act is taken to include a reference to the employment of the person under Chapter 1A of this Act.

15 Section 7(1), which is in Pt 2.1 of Ch 2 of the PSE&M Act, provides: 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. …

16 Section 17 of the PSE&M Act is to be found in Pt 2.3 of Ch 2 of the Act and provides: 17 Appointments to positions

(1) Appointments to vacant positions in a Department are to be made by the appropriate Department Head. (2) It does not matter: (a) whether the person appointed is or is not already an officer of the Public Service, or (b) that the person appointed has previously retired or been removed from the Public Service. (3) The employment of a senior executive officer in the Public Service is subject to Part 3.1. (4) Subsection (1) is subject to any express provision to the contrary in this or any other Act. 17 Section 69 of the PSE&M Act is to be found in Div 3 of Pt 3.1 of Ch 3 of the Act: 69 Employment of executive officers to be governed by contract of employment

(1) The employment of an executive officer is to be governed by a contract of employment between the officer and his or her employer.

(2) A contract of employment may be made before or after the appointment of the executive officer concerned.

(3) An executive officer is not appointed by, nor is an executive officer's term of office fixed by, the contract of employment.

(4) However, a contract of employment may constitute the instrument of appointment if the person authorised to make the appointment is also the person who signs the contract with the executive officer.

(5) A contract of employment may be varied at any time by a further contract between the parties.

(6) A contract of employment may not vary or exclude a provision of this Act or of any other Act under which the executive officer concerned is appointed or a provision of the regulations under this Act or any such other Act.

(7) The employer of an executive officer (being an officer in the service of the Crown) acts for and on behalf of the Crown in any contract of employment between the officer and the employer.

Appointment of Mr Morrison 18 In his application for an order under s 246(1) of the Criminal Procedure Act 1986, Mr Morrison identified himself as: a government official (investigator) appointed under Section 145 of the Coal Mine Health and Safety Act 2002 and thereby by Section 47B of the Occupational Health and Safety Act 2000 taken to have been appointed as a Prosecutor under the Occupational Health and Safety Act 2000 and authorised by Section 106 of that Act to institute these proceedings.

19 In the affidavit that supported his application, Mr Morrison identified himself as the 'Director of Mine and Forest Safety Performance of the Department of Primary Industries in New South Wales'. 20 The defendant put Mr Morrison on notice that his authority to institute the proceedings was in issue. Evidence subsequently filed on behalf of Mr Morrison shows that: (a) On 8 October 2004 the then Director-General of the Department of Primary Industries executed an instrument of appointment, headed 'SENIOR EXECUTIVE SERVICE', by which Mr Morrison was appointed under s 17 of the PSE&M Act 'to the Senior Executive Service Level 2 position of Director, Mine and Forest Safety Performance, under Mr Morrison's existing terms of appointment to 2 August 2008'. (b) By a letter to Mr Morrison dated 11 June 2008 the then Director-General referred to a 'review' of the 'renewal' of Mr Morrison's 'employment contract', and informed him that approval had been given for the renewal of your contract at SES Level 2 and your re-appointment as Director, Mine & Forest Safety Performance, for a term effective from 3 August 2008 and expiring on 2 February 2010. (c) This letter was accompanied by a further instrument of appointment, which was also expressed to be given under s 17 of the PSE&M Act, for a term which was expressed to begin on 3 August 2008. (d) On 23 January 2007 Mr Morrison was purportedly appointed as an investigator pursuant to s 145(1)(d) of the CMH&S Act.

21 Mr I Neil SC with Mr D Nagle of counsel appeared for the defendant. It was submitted for the defendant that although there is no direct evidence, it may be inferred that Mr Morrison was so employed as a senior executive officer in the Public Service of New South Wales. It was further submitted that, as such, Mr Morrison was not 'employed under' Ch 2 of the PSE&M Act as s 145(1)(d) of the CMH&S Act required. 22 Mr Neil drew the Court's attention to amendments made to the PSE&M Act in 2006 whereby Ch 1A was inserted. These amendments had originally been overlooked by both parties in filing their written submissions but were more than adequately dealt with in oral submissions. I will come to the provisions of Ch 1A later, but they made no difference to Mr Neil's fundamental contention that Mr Morrison did not hold a valid authority to prosecute his client. 23 The defendant's submission may be summarised as follows: (a) An employee can only be 'employed under' statutory provisions such as Chapter 1A/Chapter 2 if their employment is subject to, bound or constrained by those provisions; that is, the words 'employed under' denote a relationship of subordination or subjection as between the employment and the statutory provisions. (b) However, by s 17(3) of the PSE&M Act, which was in Chapter 2, the employment of senior executive officers in the Public Service was at the relevant time expressly made 'subject to' Part 3.1 of the PSE&M Act. (c) Part 3.1 was in Chapter 3 of the PSE&M Act. (d) In Part 3.1, s 69(1) provided that: The employment of an executive officer is to be governed by a contract of employment between the officer and his or her employer. (e) The contract of employment was to be made between the senior executive officer and their employer, who, by the operation of ss 63(2)(b) and 69(7), was relevantly the appropriate Department Head acting as the agent of the Crown. (f) While it is evident that there was a contract of employment to which the Prosecutor was party at the relevant time, nothing is known of the terms of the contract. However, it may be inferred that it was a contract of employment made in conformity with Part 3.1. (g) The effect of s 69(1) was that the Prosecutor's employment was regulated by his contract of employment. The words 'is to be governed' denoted that the authority of the contract over his employment was absolute and exclusive. There was no room for the Prosecutor to be also 'employed under' Chapter 2. Instead, the position was that by the operation of s 69(1) he was employed under his contract of employment. 24 The defendant submitted that, in the result, Mr Morrison was ineligible and unqualified to be appointed as an investigator under s 145(1)(d) of the CMH&S Act and that, therefore, his appointment as an investigator under s 145(1)(d) of the CMH&S Act was invalid. 25 Further submissions made by the defendant were that: Unlike the appointment considered in Morrison v Milner (2009) 181 IR 443, Mr Morrison's purported appointment as an investigator under s.145(1)(d) of the CMH&S Act was unlimited: see [101]. He was authorised to perform any function given to investigators under the CMH&S Act, as well as the function of instituting proceedings under s.106(1)(c) of the OH&S Act.

The legislature was careful to expressly stipulate that employment under Chapter 2 was the one invariable qualification for any appointment under s 145 of the CMH&S Act. A 'rational reason' why such a qualification might be required was that it ensured a degree of security and independence that an officer whose employment was governed by a contract cannot have - particularly where, as here, the contract by virtue of Chapter 3 included performance criteria (s 70(1)(a) of the PSE&M Act), and was subject to performance reviews (s 71 of the PSE&M Act) and termination 'at any time for any or no reason and without notice' (s 77(1) of the PSE&M Act).

It is accepted that the defendant's challenge to the validity of Mr Morrison's appointment is a collateral challenge to the appointment, but that in this case it is permissible, whether generally on the grounds set out in Morrison at [63] to [67], or on the narrower consideration that the challenge is put on the ground of a simple or narrow ultra vires of the kind discussed in Morrison at [49] and [51]. None of the considerations identified in Morrison at [52] militate against allowing the defendant's challenge. Prosecutor's submissions

26 Mr M Leeming SC with Mr D O'Neil of counsel appeared for the prosecutor. The submissions may be summarised thus: (1) The question (on the Defendant's case) is whether the Prosecutor was 'a person employed under Chapter 2 of the PSE&M Act as [a particular office]'. Read naturally, the question posed by the words is as to the source of the power to appoint the Prosecutor, not as to content of the contract of employment. The Defendant contends that 'there was no room for the Prosecutor to be "employed under" Chapter 2' because, by s 69, 'he was employed under his contract of employment'. Not lightly would the Court construe legislation which disentitled persons from office by reason of their being parties to a contract of employment. Further, s 69(3) of the Act makes it clear that an Executive Officer is not appointed by, nor is an Executive Officer's term of office fixed by, the contract of employment.

(2) While acknowledging that with a preposition as protean as 'under' that in each case the legal meaning is substantially influenced by context: see Chan v Cresdon Pty Ltd [1941] VLR 200 at 201 and by Rolfe J in Wilkinson v Feldworth Financial Services Pty Limited (1998) 29 ACSR 642 at 740. The word 'under' should be read in the sense of meaning 'in accordance with (some regulative power or principle)': English Oxford Dictionary Online, Oxford University Press, 2009, definition 20(d).

(3) Proper consideration of the PSE&M Act reveals that Mr Morrison was employed under Chapter 2 of the Act. For Mr Morrison's appointment to the Senior Executive Service Level 2 position of Director, Mine and Forest Safety Performance was an appointment pursuant to s 17 of the Act. Section 17 is within Chapter 2 of the Act (which includes ss 5-62).

(4) The wording in s 17(3) on which the Defendant relies ('The employment of a senior executive officer in the public service is subject to part 3.1') is confirmatory of the fact that the starting point is the public service which is dealt with within Chapter 2. The fact that this employment is subject to Part 3.1 does not change the fact that the employment is under Chapter 2. So much emerges clearly from s 7 which provides, relevantly: (1) Staff may be employed in a department in the following categories: Officers - deemed persons employed in chief or senior executive positions or other staff positions in the department.

(5) The fallacy of the Defendant's argument is also revealed by the fact that the contract entered pursuant to s 69(1) does not 'absolutely and exclusively' regulate the Prosecutor's employment at all. Various provisions in Chapter 2 deal with the employment of the Prosecutor/Mr Morrison. For example: section 40 provides that the Part applies to officer's in the public service other than the Chief Executive Officers; section 46 deals with allegations of misconduct; section 47 deals with unsatisfactory performance; section 49 deals with suspension of officers from duty; section 54 deals with the eligibility of a person to be appointed as an officer in the Public Service; and sections 57 and 59 deal with excessive salaries and 'other paid work'. Furthermore, within s 69 itself there is explicit provision making clear that Part 3.1 does not deal absolutely and exclusively with Mr Morrison's employment. Pursuant to s 69(6) the contract of employment may not vary or exclude a provision of the Act or of any other Act under which the Executive Officer concerned is appointed or a provision of the regulations under this Act or any such other Act.

(6) Not only for the foregoing reasons is the Defendant's submission wrong factually, and as a matter of construction, but also it proceeds from a false premise. It is asserted that in s 145 there is an 'express stipulation' that only 'a person employed under Chapter 2' was eligible for appointment. That is a misreading of s 145. There is no express stipulation at all. It does not say that 'only persons employed under Chapter 2' may be appointed to an office (cf s 26 of the Supreme Court Act 1970 or s 149 of the Industrial Relations Act 1996). Section 145(1) is an empowering provision. It is designed to facilitate the appointment of members of the public service to particular offices. There is no reason to construe the section narrowly, as if it were intended to fetter the Minister's power of appointment in order to protect the purposes reflected in provisions like s 26 of the Supreme Court Act or s 149 of the Industrial Relations Act .

(7) The Defendant's submissions seeking to distinguish Morrison v Milner are unpersuasive. Consideration

27 The scheme for appointment of persons as inspectors under the OHS Act with authority to prosecute for contravention of that Act in relation to coal workplaces is that the person must be one appointed as a government official under s 145 of the CMH&S Act. That Act empowers the Minister to appoint a person employed under Ch 2 of the PSE&M Act as, inter alia, an investigator. Where a person is appointed as an investigator under s 145 of the CMH&S Act the person is, according to s 47B of the OHS Act, taken to have been appointed as an inspector for the purposes of the OHS Act and the regulations under that Act, but such a person is only authorised to exercise functions under that Act in relation to a coal workplace, although they may exercise functions under Div 2 in relation to premises other than a coal workplace for the purpose of investigating any matter under the OHS Act in relation to a coal workplace. One of the functions of an inspector under the OHS Act is the prosecutorial function: s 106. 28 The focus of the defendant's attack on Mr Morrison's authority to prosecute lies in the contention that Mr Morrison was not a person employed under Ch 2 of the PSE&M Act and, therefore, the Minister (or the Minister's delegate) was not empowered to appoint Mr Morrison as an investigator, as purported to have been done in the application for order in this matter pursuant to s 246(1) of the Criminal Procedure Act. In the absence of being so employed, it was submitted, Mr Morrison could not be taken to have been appointed as an inspector for the purpose of s 47B of the OHS Act and, therefore, had no authority to prosecute, as he did not meet the requirements in s 106(1)(a), (b), (c) or (d). 29 The defendant's argument was that an employee can only be employed 'under' Ch 2 if he or she is 'subject to, bound or constrained by those provisions'. However, as the defendant submitted, by s 17(3) of the PSE&M Act, which is in Ch 2, the employment of senior executive officers in the Public Service was at the relevant time expressly made 'subject to' Pt 3.1 of the PSE&M Act. Section 69(1), which is in Pt 3.1, provides that the employment of an executive officer 'is to be governed by a contract of employment' between the officer and his or her employer. Accordingly, it was submitted, the words 'is to be governed' denoted that the authority of the contract over Mr Morrison's employment was absolute and exclusive and that there was no room for Mr Morrison to be also 'employed under' Ch 2. 30 As noted earlier, s 7(1)(a), in Ch 2 of the PSE&M Act, provides that: (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, … 31 The defendant accepted that it may be inferred that Mr Morrison was employed as a senior executive officer. Section 65(1)(a) of the PSE&M Act provides that the Senior Executive Service comprises, inter alia, 'persons holding positions for the time being determined by the Minister to be senior executive positions, being positions in the Government Service…' 32 Section 3 of the PSE&M Act provides that 'Government Service means the Government Service of New South Wales referred to in section 4A'. Section 4A(1), which is in Ch 1A, provides that: The Government Service of New South Wales consists of those persons who are employed under this Chapter by the Government of New South Wales in the service of the Crown. 33 Section 4K(1)(d) in Ch 1A provides that 'In any other Act … a reference to the employment of a person under Chapter 2 of this Act is taken to include a reference to the employment of the person under Chapter 1A of this Act'. 34 Section 4B(1) in Ch 1A provides that 'The Government of New South Wales may … employ staff in any Division of the Government Service'. Section 4C provides that the Divisions of the Government Service are the Divisions specified in Schedule 1. At the relevant time, the Department of Primary Industries was specified as a Division of the Government Service. 35 Section 6 in Ch 2 provides: (1) The Divisions of the Government Service specified in Part 1 of Schedule 1 comprise the Public Service of New South Wales. (2) Any such Division may be referred to as a Department (or a Department of the Public Service ) for the purposes of this or any other Act…. … 36 In other words, Mr Morrison was a person holding a position in the Senior Executive Service, which is a position in the Government Service. The Government Service consists of persons employed under Ch 1A. According to s 4K, in any other Act (which must include the CMH&S Act) where reference is made to a person employed under Ch 2, that is taken to include reference to a person employed under Ch 1A. Chapter 1A (s 4B(1)) provides that staff may be employed in any Division of the Government Service. The Department of Primary Industries, in which Mr Morrison was employed, was at the relevant time a Division of the Government Service, which could be referred to as 'a Department': s 6(2). Section 7(1)(a), which is found in Ch 2 of the PSE&M Act, provides that staff may be employed in a Department and staff includes officers, which in turn includes persons employed in senior executive positions. 37 I take the view that the general power to employ staff in a Department is to be found in Ch 1A of the PSE&M Act. By virtue of s 4K, where reference is made to a person employed under Ch 2, that is taken to include reference to a person employed under Ch 1A. Section 7 of the PSE&M Act then defines the categories of staff who may be employed and they include senior executive officers. 38 Part 2.3 of the PSE&M Act deals with appointments as distinct from employment (see s 16) and provides how appointments of officers, other than Department Heads, in a Department are to be made. Section 17, which is found in Pt 2.3, is not, in my view, a source of power regarding employment. In other words, it does not displace the general employment power in Ch 1A by substituting Pt 3.1 of the Act in respect of senior executive officers. 39 Section 17 provides that the employment of a senior executive officer is 'subject to' Pt 3.1. I construe that to mean the employment is 'dependent or conditional upon' the provisions of Pt 3.1. In other words, one does not look to Pt 3.1 to discern whether the officer is employed under the PSE&M Act. That is done by ss 4A and 4B, and s 17 operates on that footing. What s 17 then does is to refer one to Pt 3.1 in order to find the conditions that attach to the employment.

40 In that respect, s 69(1) of the PSE&M Act provides that the employment of an executive officer 'is to be governed by a contract of employment' between the officer and his or her employer. The section simply means what it says, namely, that the employment of an executive officer is to be governed by a contract of employment, not that the executive officer is to be, or may be, employed under the section. I do not accept the defendant's submission that the words 'is to be governed' denotes that the authority of the contract over the employment is absolute and exclusive. I can find no dictionary definition that suggests the word 'governed' connotes absolute or exclusive authority. In any event, the contract does not govern the employment absolutely or exclusively. Its terms are subordinated to the provisions of the Act: s 69(6). 41 The word 'governed' (used in the sense of having a directing or predominating influence over) may have been used to emphasise a distinction between executive officers and other officers whose employment may be subject to a contract of employment but who may also be, and usually are, subject to awards or industrial agreements, whereas executive officers are not. Where employment is regulated by both a contract and by an industrial award or agreement (and by the PSE&M Act) it would not ordinarily be said the employment was 'governed' by the contract. 42 But whatever sense 'governed' is used in s 69(1), it does not mean that s 69(1) is the provision of the PSE&M Act under which Mr Morrison was employed. 43 It is perhaps unnecessary to deal with it but I should make some comment in relation to the defendant's contention that an employee can only be 'employed under' statutory provisions such as Ch 2 if their employment is subject to, bound or constrained by those provisions; that is, the words 'employed under' denote a relationship of subordination or subjection as between the employment and the statutory provisions. 44 Mr Neil was referring to a definition of the preposition 'under' in a particular sense (14b) as defined by the Oxford English Dictionary 2nd Edition, 1999. I am inclined to the view that given the context in which 'under' is used in s 145 of the CMH&S Act, the meaning to be assigned to the word is that proposed by senior counsel for the prosecutor, namely: 'in accordance with (some regulative power or principle)': English Oxford Dictionary Online, Oxford University Press, 2009, sense 20(d).

45 Whilst there were other arguments raised by both parties I am satisfied that the way in which I have construed the legislation is correct and there is no need to deal with the other submissions. 46 I find that Mr Morrison was validly appointed as a government official under the Coal Mine Health and Safety Act 2002 and pursuant to s 47B of the Occupational Health and Safety Act 2000 is, therefore, taken to have been appointed as an inspector for the purposes of that Act and the regulations, with the authority to prosecute under s 106(1)(c) of the Occupational Health and Safety Act. It follows that the defendant's notice of motion should be dismissed. I so order. Costs are reserved. ________________________________

AMENDMENTS HISTORY: 22/10/2009 - Typographical error - correction of definition - Paragraph(s) [9]

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