Notification under section 130 by the New South Wales Teachers Federation of a dispute with the Department of Education and Training re casual teacher [2003] NSWIRComm 145

APPLICANT: Ms PF Lowson of counsel SOLICITORS: MacMahon & Associates

LEGAL REPRESENTATIVES: RESPONDENT: Ms RS McColl SC (as she then was) with Mr JV Murphy of counsel SOLICITORS: IV Knight

JUDGMENT: - 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J

Notification under section 130 by the New South Wales Teachers Federation of a dispute with the Department of Education and Training re casual teacher DECISION

1 This decision concerns the question of the Commission's jurisdiction to make the orders sought by the applicant union. The dispute was notified in August 2002 by the New South Wales Teachers Federation pursuant to s130 of the Industrial Relations Act 1996 ('the Act'). It concerned the assessment conducted by the Department of Education's ('DET') Employment Screening Unit of a member of the Federation, which was relied upon by the Technical and Further Education Commission ('TAFE'), to exclude the member from consideration for employment as a casual teacher. The assessment flowed from the obligations imposed upon TAFE by the Commission for Children and Young People Act 1998, ('the CCYP Act').

2 The notification recorded that the member had been employed by DET for over 30 years, prior to his resignation from the position of principal of a country high school. In 1997, disciplinary proceedings had been instituted against the member, arising out of various allegations of improper conduct of a sexual nature. All the allegations were denied, but a number were found proven and a penalty of demotion to deputy principal was imposed by DET.

3 The member appealed to the Government and Related Employees Appeal Tribunal ('GREAT tribunal'). The member was then close to his anticipated retirement date and the appeal was settled by the parties on the basis that the member was permitted to resign. This entitled the member to termination/superannuation benefits at the salary applicable to a principal. Later retirement from a deputy's position would have resulted in significantly lower entitlements, in the order of some $77,000. The settlement involved no concessions as to the matters raised in the appeal, which went to alleged defects in the investigation conducted by the DET case management unit and in the conclusions reached in relation to the allegations found to have been made out.

4 In 2001, the member was approached by the head of studies of a particular subject at a country TAFE College, who invited the member to teach a particular class. The member accepted and made the necessary application for casual/part-time employment.

5 Pursuant to the obligations imposed by the CCYP Act and the policies developed to deal with those obligations, the 'Guidelines for the Implementation of the Working With Children Check and Completion of Prohibited Employment Declarations', the application was reviewed by the DET Employment Screening Unit. Those policies apply to applications for employment by DET, TAFE and a number of other employers. They are known as 'the Working with Children Check'. The Screening Unit is responsible for conducting this check on behalf of private and public employers in the New South Wales Education and Training sector, excluding non-government schools. (See Part 7 of the CCYP Act). Persons rejected for employment are then placed on the DET state-wide list of persons not to be employed. Under the policy applicants who receive a risk rating of 'medium' or higher, are not to be employed.

6 The member was advised by TAFE that he had been assessed as 'high risk' and that his application for employment would not proceed. The member approached the Screening Unit and raised a number of matters with it. They were taken into account and the assessment revised to a 'medium risk'. The legislation would not preclude employment of an applicant assessed to represent a medium risk. Under the TAFE policy, however, applicants for employment assessed as either high or medium risk, are not offered employment. Accordingly, TAFE still declined to proceed with the member's employment. This result flowed from application of the policy which applied both to DET and TAFE and TAFE's refusal to consider a departure from the policy, in the particular circumstances of this case.

7 It was alleged by the Federation that the decision was unfair, for a variety of reasons. It was TAFE's position that the Commission had no jurisdiction to make the orders sought in the proceedings. Questions of the proper construction of the Technical and Further Education Commission Act 1990 ('the TAFE Act') arose.

8 When the question of the Commission's jurisdiction came on for hearing, the Federation filed in Court an amended dispute notification, which recast the matters about which complaint was made in some respects. It also altered the relief sought to: A. Findings that: - (a) the risk assessment process used by DET in respect of Mr Blezard is unsafe and unsatisfactory for reasons including - · Its reliance on the 1997 investigation, giving inadequate weight to the penalty imposed in 1998 · The failure to conduct its own investigation into the 1997 allegation, such investigation necessarily including an oral inquiry that would allow the conflicting evidence to be tested. · Its lack of transparency · The capacity for an obviously incorrect assessment to occur with severe deleterious consequences on an individual's right to employment (b) The assessment of Mr Blezard as being of medium risk is incorrect. (c) Mr Blezard is not a risk to children. (d) In the alternative to (c), that Mr Blezard is not of such a risk to children so as to prevent his application for employment at TAFE being assessed without being restricted by any employment screening assessment. (e) In the alternative or in addition to (a) to (d), that the disciplinary proceedings against Mr Blezard in 1997/98 were not disciplinary proceedings for the purpose of section 33 of the Commission for Children and Young People Act 1998. (f) In the alternative or in addition to (a) to (e), that the employment sought by Mr Blezard is not child-related.

B. If the Commission makes the findings sought at A(a) to (c), and/or A(e),then orders that:- (a) DET withdraw its assessment of Mr Blezard as being of medium risk to children; (b) DET advise TAFE that Mr Blezard is not a risk to children; (c) TAFE process Mr Blezard's employment application in accordance with due process.

C. In the alternative to B, if the Commission makes the finding sought at A(d), then orders that:- (a) DET withdraw its assessment of Mr Blezard as being of medium risk to children; (b) DET advise TAFE that Mr Blezard - (i) is not of such risk to children as to warrant any report from the employment screening unit, or alternatively (ii) is of low risk to children. D. Such further or other Orders as the Commission considers appropriate.

9 The certificate of attempted conciliation required by s135 of the Act had earlier been issued on 3 February 2003. It was, however, common ground between the parties that the amendments did not necessitate further conciliation. Various proceedings had earlier ensued, including a conciliation conference at which the Children and Young People Commission was represented. The parties were unable to come to any agreement on the matters which had brought them before the Commission. It was common ground that the Federation's amendments led to no different position and the hearing on jurisdiction proceeded on that basis.

10 Evidence was called from Mr Peter Clarke, Director, Human Resources, TAFE NSW Riverina Institute and Ms Veronica Willmott, Manager of Employment Screening at the Employment Screening Unit of the NSW Department of Education and Training. Mr Clarke's evidence dealt with the staff employed at TAFE, the application for employment made by the member and how it was dealt with by TAFE.

11 Ms Willmot's evidence was that a screening agency such as the DET Screening Unit had no discretion under the legislation, in relation to the use of the CCYP assessment form, a tick box process, when considering applicants for employment. The process had regard to information provided by a former employer. The legislation permitted, but did not require employers to provide such information. In the case of the DET, it did not provide the Screening Unit with the whole disciplinary file relating to the member, but a summary document, in response to questions asked by the Unit. The notice of charge was not provided to the Unit, unless a specific request was made for it. The Screening Unit applied the DET policy in relation to these assessments. This was not a document which the Commission for Children and Young People needed to approve. The assessment form itself, however, was provided by that Commission. The Screening Unit advised employers that notwithstanding any particular assessment resulting from an assessment, the decision to employ remained that of the employer. The Screening Unit was made aware in this case, that prior to the member's resignation from DET, there had been a 'directed transfer' preceded by a finding of demotion. The lower assessment to a medium level risk resulted from a reassessment by the Screening Unit, as contemplated by the CCYP process. That process permitted account to be taken of matters not dealt with in the tick box process. It was on this basis that the matters raised by the member had been taken into account by the Screening Unit, after the original high risk assessment. This had led to an alteration of the high risk assessment, to that of a medium level risk.

The parties' respective cases 12 The case advanced for TAFE by Ms McColl SC (as she then was) with Mr Murphy of counsel, was that the dispute plainly involved a question as to TAFE's failure to appoint the Federation's member. While the relief sought was formulated so as to address itself to a number of pre-employment processes, rather than to the failure or refusal to employ itself, none of the orders sought could be categorised as anything other than going to matters which fall within the provisions of s19 of the TAFE Act.

13 The result was that the Commission had no jurisdiction to grant the relief sought. (See New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (Unreported; Wright J, President; Schmidt J and McKenna C; 20 May 1999).

14 The case advanced for the Federation by Ms Lowson of counsel was that the CCYP Act had introduced mandatory employment screening for persons seeking employment in child related employment. The Child Protection (Prohibited Employment) Act 1998 ('the CP Act) had made it a criminal offence for a prohibited person to seek child related employment. A procedure whereby such a person can seek an order that the CP Act is not to apply to them, was also provided. If such an order is granted, the prohibition no longer applies and such a person is free to seek child related employment.

15 The CCYP Act provides for an employment screening process. Employers are obliged to report to the Children and Young People Commission, relevant disciplinary proceedings. Records as to such reports are then kept by that Commission, which are checked when applications for employment are made to relevant employers. In this instance, it was this checking mechanism which caused the DET Screening Unit to make an enquiry of DET. DET had kept information as to the disciplinary proceedings involving the member prior to the resignation and provided that information to the DET Screening Unit. That Unit used the information to conduct the risk assessment.

16 The Children and Young People Commission had issued guidelines as to the conduct of such assessments. The form of such assessments was not dealt with in the legislation. The assessment process is a 'tick box' process, in accordance with the guidelines, providing for a numerical outcome. On the Federation's case, this involved 'significant margins for subjective assessment'. The member's approach to the Screening Unit and the resulting re-assessment of the member from high to medium risk, confirmed this.

17 Once an assessment was made, the legislation left it to the employer to determine the significance of the risk assessment, that is, how the particular assessment will affect employment prospects. The TAFE policy was that persons assessed to have medium or high risk were not to be employed. There was no mechanism provided in the policy, or the legislation, whereby a person in the position of this member, having been the subject of a disciplinary process where various allegations were found to have been made out, could later seek to have those conclusions 'forgiven'. This stood in marked contrast to persons who had been convicted of a 'serious sexual offence'. Such persons had access to a process provided by the CP Act, whereby they could have their offence forgiven, for example on application to this Commission. This mechanism then enabled such persons to apply for child related employment without inhibition.

18 It was also noted that s44(2) of the CCYP Act reserved individual's statutory rights. It was submitted that such rights included the right to seek a review by the Supreme Court of an administrative decision, or for a deceleration of right; the right to seek relief from the Commission, through notification of a dispute under the Act, as well as an order for employment and a declaration by the Commission under s154 of the Act.

19 Under s130 of the Act, disputes about industrial matters may be notified. It was argued that a risk assessment which precluded a person's application for employment being processed, fell within the definition of 'industrial matter' in s6. The construction of s19 urged by TAFE would have the result that TAFE Commission staff would be deprived of the opportunity to have such disputes dealt with by the Commission. That result could not have been intended by the legislature and put TAFE employees into a starkly different position, compared to employees of DET and those otherwise employed elsewhere in the public sector.

20 Section 19 of the TAFE Act was submitted to be relevantly similar to earlier provisions such as ss25 to 27 of the Public Sector Management Act 1988 ('the PSM Act') and s65A of the Public Service Act 1979 ('the PS Act') which, as the Second Reading Speech in relation to the latter provision showed, was intended to address two issues. Firstly, to make the then Public Service Board the final arbiter of external appointments and secondly, to ensure that there was appointment through merit.

21 Section 19 of the TAFE Act had been given a wider interpretation, it was conceded, but it was submitted that that section had never been intended to apply to situations such as this, where what was at issue was a recruitment process, not an appointment process. Alternatively, it was submitted that on a purposive approach to the construction of the section, it would be concluded that s19 applied only to situations involving appointments or failure to appoint TAFE, not to its recruitment process.

22 Here, it was argued, orders as to appointment were not sought. Rather, an unjustified impediment to an application for employment being processed was sought to be removed. The risk assessment would preclude any employment which the member sought with TAFE. It followed that the matter should be dealt with, whether or not there was a current prospect for employment or appointment.

23 In the further alternative it was submitted that ss18 and 19 of the TAFE Act sought to ensure that only GREAT had jurisdiction in relation to challenges by prospective appointees to permanent positions at TAFE and that merit selection procedures were followed. Properly construed, s19 did not apply to persons seeking casual employment with TAFE, rather than appointment to vacant permanent positions, (s19(1)), or temporary appointment to non-vacant permanent positions (s19(3)).

24 Sections 15, 16, 17, 18, 19, 20, 21 and 22 of the TAFE Act appear in Part 6, Staff. They provide: 15. Employment of staff The TAFE Commission may employ such staff as it requires to exercise its functions. 16. Salary, conditions etc of staff (1) The TAFE Commission may fix the salary, wages and conditions of employment of its staff in so far as they are not fixed by or under any other Act or law. (2) Members of the staff of the TAFE Commission are employees of the Crown for the purposes of the Industrial Relations Act 1996 or any other Act. 17. Regulations relating to staff (1) The regulations may make provision for or with respect to the employment of the staff of the TAFE Commission, including the conditions of employment and the discipline of any such staff. (2) Any such regulations relating to the conditions of employment or the discipline of staff: (a) have effect subject to any relevant award made by a competent industrial tribunal and to any industrial agreement to which the TAFE Commission is a party, and (b) have effect despite any determination of the TAFE Commission under section 16, and (c) are subject to Part 2A of the Public Sector Management Act 1988. 18. Appointments and promotion on merit (1) Appointments to the staff of the TAFE Commission and promotions for members of that staff are to be made on the basis of the merit of the applicants for appointment or promotion. (2) The merit of persons eligible for appointment or promotion to a vacant position are to be determined having regard to: (a) the nature of the duties of the position, and (b) abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties. 19. Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position on the staff of the TAFE Commission, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position on the staff of the TAFE Commission, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. 20. Incapable officer may be retired If: (a) a member of the staff of the TAFE Commission is found to be unfit to discharge or incapable of discharging the member's duties, and (b) the member's unfitness or incapacity appears to be of a permanent nature and has not arisen from actual misconduct on the part of the member (or from causes within the member's control), the TAFE Commission may cause the member to be retired. 21. Use of staff or facilities of Departments etc The TAFE Commission may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a government department, the Education Teaching Service, a public or local authority or any other education or training provider. 22. Extended or long service leave (1) This section applies to all members of the staff of the TAFE Commission who are employed on a full-time basis. (2) Members of staff of the TAFE Commission to whom this section applies are entitled to extended leave at the same rate and under the same conditions as officers of the Public Service. (3) For that purpose, Schedule 5 to the Public Sector Management Act 1988 applies (with any necessary modifications) to those members of staff.

25 Employment of TAFE staff is regulated by the Crown Employees (Teachers in Schools and Related Salaries Related and Conditions) Award ('the Award'). The TAFE policy which establishes the processes which apply to recruitment and appointment of part-time casual staff are dealt with in the Recruitment-Part time Teachers - Casual - Policy.

26 TAFE and DET apply the same policy on employment screening, the Guidelines for the Implementation of the Working With Children Check and Completion of Prohibited Employment Declarations. They are designed to ensure compliance with the CCYP Act. The CCYP Act provides in s44: 44. Effect of Part on other rights and procedures (1) Employment screening may be conducted, and information disclosed or obtained, in accordance with this Part despite any other Act or law to the contrary. (2) Nothing in this Part affects any statutory right that an employee may have in relation to employment or termination of employment. However, any court or tribunal exercising jurisdiction with respect to any such right must have regard to the results of any employment screening carried out under this Part in connection with the employment concerned and the welfare of children as the paramount consideration in that employment screening. (3) Nothing in this Part affects the operation of the Criminal Records Act 1991 in relation to spent convictions within the meaning of that Act. (4) Nothing in this Part affects the operation of Part 2 of Chapter 9 of the Health Services Act 1997.

27 I am bound to apply the conclusions of the Full Bench of the Commission to the proper construction of the TAFE Act in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996. There, the Commission was considering an application for the making of an award on certain terms, which would have had the effect of creating and appointing existing TAFE employees to new permanent positions and temporary positions, which they did not hold prior to the making of the award. The proper construction of s19 of the TAFE Act thus arose. It was held by the majority at p14 that: 'Here the reference in s19(1) of the TAFE Act is to be read as a reference to the 1996 Act. Section 19 thus suggests on its face that the Commission has no power to deal with any matter which goes to the appointment or failure to appoint staff to TAFE, as an industrial matter under the 1996 Act. What must be determined then, is whether, as was submitted for the Federation, there is nevertheless a tension between the various provisions of Part 6 - Staff, of the TAFE Act, which must be resolved in favour of the view that despite the words of s19, the Commission does have power to deal with an application for an award which requires the appointment of particular staff to particular positions, and thereby effectively prevents their appointment to other positions. This aspect of the Federation's claim is similar to that dealt with in the Ombudsman's case . '

28 At pp15 to 17, the majority went on to hold: 'Section 15 of the TAFE Act permits the employment of such staff as are required for the performance of the functions of the TAFE Commission. Section 16 permits the TAFE Commission to fix salaries, wages and conditions of employment for such staff 'in so far as they are not fixed by or under any other Act or law.' The section clearly contemplates other legislation making provision for the fixing of such salaries, wages and conditions of employment. The 1996 Act is such an enactment, providing expressly in the award making power given by s10 for the making of awards 'setting fair and reasonable conditions of employment for employees'.

Section 17(1) of the TAFE Act contemplates the making of regulations under that Act as to various staff matters, relevantly including 'conditions of employment and the discipline of any such staff'. 'Conditions of employment' is a phrase not defined in the TAFE Act, but it is defined in the Dictionary to the 1996 Act by way of reference to the definition of 'industrial matter' appearing in s6. That definition is itself wide enough to encompass matters such as salaries, wages and conditions of employment (see the examples given in paragraphs (2)(b)(c), (f) and (g)). Section 17(2) of the TAFE Act envisages that awards or enterprise agreements made under the 1996 Act will override such regulations, subject to Part 2A of the Public Sector Management Act (which deals with the position of executive officers). It is not necessary to decide in these proceedings whether the phrase "conditions of employment" in sections 16 and 17 of the TAFE Act includes conditions concerning the appointment of TAFE staff.

Sections 18 and 19 both deal with appointment of staff, and s18 also deals with promotions. Section 18 requires that both appointments and promotions be made on the basis of the merit of the applicants. Section 19 is concerned with appointment only and the challenges which may be made to such appointments. Section 19(4) preserves the appeals which may be made under the Government and Related Employees Appeal Tribunal Act . Section 19(3) is a general provision precluding challenge or relief in respect of a decision to appoint a person to a position, a failure to appoint, a claim that a person is entitled or not entitled to be appointed and the validity or invalidity of any appointment made.

Subsections 19(1) and 19(2) deal with the power of the Commission under the 1996 Act and like s19(3) are restrictive provisions. They have the effect that the appointment or failure to appoint a person to a vacant position at TAFE "or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of" the 1996 Act. It was these words which led the Court Session to conclude in the Ombudsman's case that it had no power under the 1940 Act to make an award concerning a failure to appoint employees, other than on a temporary basis.

While in the ordinary case the appointment or failure to appoint a person to a position will be an 'industrial matter' as defined in the 1996 Act and an award made in respect of such a matter may properly be characterised as an award concerning a 'condition of employment', such a matter arising at the TAFE Commission is taken beyond the Commission's award making power by s19 of the TAFE Act. It follows that there is power in the TAFE Commission to appoint staff on merit and to do so on conditions of employment fixed by the TAFE Commission or by regulation. That power is subject to the Commission's award making power under the 1996 Act, except as to any award regulating the appointment or failure to appoint persons to the staff of TAFE. By virtue of the limitation imposed by s19 of the TAFE Act, the Commission has no power to make an award as to such matters.'

29 The majority found no ambiguity in the words of s19. There was no question in those proceedings, that the award there sought was otherwise within the Commission's jurisdiction under the Act. That is not the case in these proceedings. It follows that the jurisdictional question which here arises is somewhat different. It depends upon whether the orders here sought concern industrial matters, as defined by s6 of the Act, which are not removed from the Commission's jurisdiction by operation of s19 of the TAFE Act.

30 Section 130 of the Act provides for notification of industrial disputes to the Commission by various persons and entities, including a union such as the Federation. If the matter is not resolved in conciliation, s136 of the Act provides that: 136. Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

31 While the Commission undoubtedly has very wide powers to deal with disputes notified under s130 of the Act, in arbitration it is not empowered to make any kind of order which might seem just in the circumstances of the particular case. In this respect, the power stands in contrast to predecessor legislation, such as s25 of the Industrial Arbitration Act 1940, where, for example, orders or awards could simply be made about 'industry disputes'. Section 136 contains a more restricted power.

32 Apart from dispute orders, s136(1)(d) contemplates the making of various types of orders which the Commission is 'otherwise authorised to make'. This includes orders of reinstatement, re-employment and compensation under s89, in relation to unfair dismissal; orders for reinstatement of injured workers under s94; even demarcation orders under s294.

33 Section 136(1)(b) also permits the making and varying of awards under Part 1 of Chapter 2 of the Act. There, s10 empowers the Commission to make awards setting fair and reasonable conditions of employment. 'Award' is defined in the Dictionary of the Act to include any order that sets 'conditions of employment', which is defined to include 'any provision about an industrial matter'. That term is defined in s6 as: "industrial matters" means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. (2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace.

34 In these proceedings, the Federation was at pains to make clear its concerns were not advanced in relation to TAFE's refusal to employ its member, but rather the impediments in the recruitment process it had adopted, which precluded his application for employment being further processed by TAFE. That recruitment process flowed from the new obligations generally imposed upon employers by the CCYP Act and the CP Act. Some of those obligations apply once employment has commenced. Others, which are relevant here, when consideration is being given to applications for employment.

35 It follows from this approach, that it is not 'conditions of employment', as that term is commonly understood, which are at issue here. Rather, it is the pre-employment procedures followed by TAFE under the applicable statutory regime, when consideration was being given to whether or not employment should be offered to the member, an applicant for employment, which has given rise to the dispute notified and the orders sought.

36 As the High Court's decision in Re Cram; Ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 makes clear, it is quite conceivable that a proper foundation for an award regulating the processes whereby TAFE, the DET or other employers operate their employment screening processes under the CCYP Act, might be found. Cram was concerned, after all, with claims made by a union in relation to an employer's system of recruitment, which the High Court accepted as being within jurisdiction under the relevant legislation. Nowadays, given the provisions of the Act, much would depend upon the nature of the application made and whether what was proposed involved the establishment of 'fair and reasonable conditions of employment'. That question was not decided by the Full Bench in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996. It would also involve consideration of the interaction between provisions of the Act and s44 of the CCYP Act, earlier quoted. There is, however, no such application before the Commission in these proceedings.

37 Rather, what this dispute is concerned with, is an application for employment with TAFE, made by the Federation's member and the processes which TAFE followed, in accordance with its relevant statutory obligations, to consider and reject that application. Those matters plainly fall within the definition of industrial matter, because they concern a 'refusal to employ' (s6(2)(e)). That the findings and orders which the Federation here seeks, otherwise fall within the definition of industrial matter, is not so clear.

38 Here, there has never been an employment relationship between the member and TAFE. While it was submitted that the orders sought concerned 'work to be done' by the member for TAFE, that is a description difficult to accept. There was no issue between the parties as to the work which the member was to perform. The evidence was that the casual position in question had been advertised. Applicants "from suitably qualified people who wish to be considered for employment or placement on a suitability list for positions which may occur" had been sought. The position number and subject area were identified, as was the location. That position was vacant and the member had been approached by TAFE to perform the work. Placement on a suitability list was not being sought by the member. As a result he had applied for the position; he had been interviewed and found suitable for employment and consideration was being given by TAFE, as to whether he could be 'nominated' for employment to the position, prior to the conclusion of the merit selection process. This possibility arose under the applicable TAFE policy applying to part-time casual teachers. It was at that point that the screening exercise required by the CCYP Act was conducted by the DET Screening Unit and TAFE determined as a result, that the application for employment would not be further considered. That followed from the Screening Unit's reassessment that the member posed a medium level risk and the TAFE policy, that such persons would not be employed.

39 It followed that there was no employment relationship ever brought into existence. The Federation is seeking to attack the steps taken by TAFE when considering whether an employment relationship with the particular member should have been created.

40 As I have noted, that situation falls within the definition of 'industrial matter', because there has been a refusal to employ, a matter expressly provided for in s6(2). In the case of any particular individual, once an employer has declined to entertain an application for employment, it is difficult to see how an industrial matter otherwise arises, unless it can be concluded that the resulting dispute otherwise concerns the 'privileges, rights, duties or obligations of TAFE as an employer'. Even if such a conclusion is available, the provisions of s19 of the TAFE Act arise for consideration.

41 The Federation also seeks orders against DET. DET was involved in the dispute, because TAFE utilises its Screening Unit, as authorised by the CCYP Act. The nub of the complaints advanced about DET went to how the Screening Unit had conducted the assessment process, so as to finally arrive at an assessment of the member as being a 'medium level risk'. Further complaint was made about TAFE's policy not to appoint persons assessed to have such a level of risk, that being a matter for its discretion under the statutory regime.

42 As to DET, it was submitted that the orders sought against it were 'industrial matters', because of the employment relationship which had existed in the past between the member and DET. This approach appears to be drawing rather a long bow. Had TAFE utilised the services of a Screening Unit other than this DET Unit, as it was free to do under the legislation, what basis would there have been for the orders sought against that provider?

43 The member's employment with DET came to an end in 1997, after the member's resignation. The orders and awards which the Commission makes, setting 'fair and reasonable conditions of employment', even if in relation to an 'industrial matter', then attach to a contract of employment, which is attracted by the award. Awards specify the parties bound by the award (s12), who are not free to contract out of them. (See s406). In this case, however, there is simply no contractual relationship of any kind in existence between DET and the member and none sought to be created.

44 The Commission may also order reinstatement, or re-employment, or indeed, may order employment. Such orders are directed at achieving the creation of an employment relationship. Nothing of that kind is here sought against DET. In this statutory scheme, what is sought against DET can only be characterised as orders fixing 'fair and reasonable conditions of employment' as to an 'industrial matter', in circumstances where the parties have no employment relationship with each other, to which such an order could attach and where the Federation does not seek the creation of such a relationship, as the result of the findings and orders it is pressing.

45 That lies at the heart of the difficulty which I perceive as to this aspect of the case advanced. There is no employment relationship between DET and the member, none is sought to be established in these proceedings and yet the orders seek to regulate the processes of one of the DET's Units, in relation to a service provided to a prospective employer, TAFE. I cannot see that the orders sought concern an industrial matter, as defined in the Act.

46 Nor can I see that the existence of an employment relationship between the member and DET in the past, albeit for over 30 years prior to 1997, can lead to any other conclusion. The difficulty is further illustrated by the provisions of s15 of the Act, Commencement of Award. Section 15(3) precludes awards operating retrospectively, in this instance, prior to the date of notification of the industrial dispute. The Federation seeks prospective orders, but prospective orders cannot impact upon an employment relationship which ceased years ago.

47 Other provisions of the Act throw further light on the difficulty. For example, the Court exercises quite a different jurisdiction under s106 of the Act. There, the Court is called upon to consider the fairness of certain kinds of contracts, including employment contracts and collateral contracts and arrangements. That power is not limited by a provision such as s15. Indeed, the authorities have long made clear that under s106 the Court is not limited to dealing with contracts which remain on foot. There is jurisdiction to deal even with those contracts and arrangements which have come to an end, before application is made to the Court, if the relevant finding as to unfairness is made. Such contracts may then be varied or declared void, ab initio, or from some later time. The provisions of s136 of the Act do not operate in the same way.

48 These conclusions lead to a consideration of s19 of the TAFE Act. That section clearly would not permit the Commission to deal with that part of any industrial matter, which involved 'appointment or failure to appoint a person to a vacant position' at TAFE or 'any matter, question or dispute relating to such an appointment or failure.' (s19(1)). Nor could the Commission make any orders or grant any relief in relation to 'the appointment or failure to appoint a person to a position on the staff of the TAFE Commission, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.' (s19(3)).

49 This is where the difficulty with the present application appears insurmountable. On its approach, the Federation seeks no orders in relation to the appointment of its member. Rather, it seeks the removal of an 'impediment' in the recruitment process, to his application being processed. On examination of the details of the orders sought, this is a distinction without a difference. The 'impediment' identified appears plainly to fall within the compass of the phrases 'any matter, question or dispute' in relation to TAFE's failure to appoint the member and its removal to amount to relief in relation to his 'entitlement or non-entitlement to be appointed' to a position on the TAFE staff.

50 The Federation's arguments, in this respect, also turned upon the meaning of the phrase 'a vacant position' and the word 'appointment', as used in s19. Neither is defined in the TAFE Act. The ordinary meaning of the words plainly encompass the circumstances in which the Federation's member finds himself. He is, after all, seeking appointment to a vacant casual position at TAFE. Those words have more restricted meanings in other legislation upon which the Federation relied. The Federation's argument was that properly construed, the words used in s19 have a more limited meaning, than is suggested on their face.

51 The Federation's argument was that casual staff, when employed at TAFE are not 'appointed' to 'a vacant position'. While they are employed, 'appointment' is reserved for permanent employees. In addition, casuals do not occupy 'positions' at TAFE. The member in this case was seeking part-time casual employment and not appointment to a vacant permanent position, so it followed, the Commission was not precluded by s19 of the TAFE Act from dealing with the orders sought.

52 There is a real difficulty with the arguments so developed. The TAFE Act does not deal expressly with concepts such as permanent and temporary employment, unlike other legislation regulating public sector employment. (See the Public Sector Employment and Management Act 2002 ('the PSEM Act'), for example.) The Federation's arguments amounted to this. That despite the absence in the TAFE Act, of provisions in the PSEM Act such as those dealing with officers, temporary and casual employees (s7); the creation of staff positions (s9); the appointment of persons to vacant positions (s17), and the circumstances in which an officer's position might become vacant (s26), the provisions of s19 of the TAFE Act should be construed in a similar way to the provisions of s22 of the PSEM Act. This flowed from the use of the word 'appointment' and 'vacant position' in s19.

53 The evidence showed that in practice, TAFE employs permanent staff and part-time casual staff. The award which regulates this employment at TAFE also refers to the employment of officers and temporary staff under the TAFE Act, but neither that Act, nor the evidence, suggested that such persons were employed at TAFE.

54 TAFE's argument was that s19 of the TAFE Act was not ambiguous on its face. The construction urged by the Federation was not available on the face of that Act, which made it plain that the distinctions sought to be drawn between permanent and part-time casual employees were simply not available. Section 22 of the TAFE Act put this beyond argument. It was the only section in Part 6 Staff, where an intention to treat staff differently, having regard to the basis of their employment, appeared. Even then, the distinction was concerned with full-time employment, not on the basis of permanency. All other sections in that Part, on their face applied generally. Even if there were some ambiguity to be found on the face of the section, a conclusion not available in light of the Full Bench's decision in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996, recourse to extrinsic material to which regard might be had, such as the Second Reading Speech, did not permit the construction urged to be drawn. The result would be absurd. Namely, to permit persons seeking casual employment at TAFE recourse to this Commission, whenever disgruntled about TAFE's failure to give them casual work, but to exclude those seeking permanent employment from such assistance.

55 It must be observed that these submissions had considerable force, as did a consideration of other consequences of the construction urged for the Federation.

56 For example, on the Federation's approach to the construction of the TAFE Act, not only are casual employees entitled to challenge a failure by TAFE to offer them employment, a right not afforded to permanent employees, but they are not required to be appointed on merit, because casuals are not appointed to the staff of TAFE (s18), but are only employed. This consequence of the construction urged, also serves to highlight the difficulty which lies in the way of its acceptance. This result, in my view, must be regarded as unreasonable and indeed, unintended by the legislature.

57 Section 33 of the Interpretation Act 1987, provides that a construction which would promote the purpose or object of an Act, is to be preferred to a construction which would not do so. Section 34 permits recourse to extrinsic material, to confirm the meaning of a provision in its ordinary meaning, taking into account its context and the purpose or object of the Act, or to determine meaning, if the provision is ambiguous or obscure, or if the ordinary meaning leads to a result that is manifestly absurd, or is unreasonable.

58 An obvious question which thus arises is what the underlying purpose of the TAFE Act is. Given the very different way in which employment in the public sector generally is structured, as provided by the PSEM Act, for example, compared to the provisions made in the TAFE Act, one cannot readily discern a statutory purpose that employment in TAFE is to be provided on the same basis as employment elsewhere in the public sector. An acceptance of this notion, lies at the heart of the Federation's case.

59 Recourse to the Second Reading Speech confirms this conclusion. There the Minister was discussing the transformation of TAFE into a 'dynamic and competitive education and training enterprise', vital to improving the economic performance of the State. (Hansard, 21 November 1990 at p10202). At p10203 the Minister said: 'The benefits of establishing TAFE as a statutory authority include greater industry input at the highest level, greater acceptance of TAFE by industry as TAFE develops its rapid response capability, improvements in the efficiencies and effectiveness of TAFE's operations and greater capacity to establish commercial activities. Equally important is the opportunity a statutory authority provides to break with the past practices which grew out of departmental constraints.'

60 At p10209, the Minister went on: 'The Government is presently considering the adoption of a policy which would open up mobility in the public sector. This policy, if adopted, would apply to TAFE Commission staff who were previously public servants. A private corporation will have its own right to employ staff, subject to relevant awards and agreements where these exist. The consultation process alerted me to a significant deficiency in the exposure draft. The definition of merit to be used for appointments and promotions was outmoded and inconsistent with the accepted definition in the Public Sector Management Act. This has now been corrected. Clause 18(2) states that merit will be determined by the nature of the duties of the position and the abilities, qualifications, experience and standard of work performance and personal qualities relevant to the performance of duties. Part IXA of the Anti-Discrimination Act will continue to apply to the TAFE Commission ensuring that equal employment opportunity prevails. Promotion appeals to the Government and Related Employees Tribunal have been limited in the bill to the grounds of irregularity or unfairness in selection procedures, thereby excluding appeals on the grounds of relative merit of candidates. The rationale for this change comes from the findings of the Scott review and the inappropriateness of a sluggish promotions system to a streamlined organisation intent in dramatically improving its flexibility and responsiveness.

61 The evidence shows that in this case, the member was, in fact, involved in a merit selection process provided for by TAFE policy, following upon his application for casual employment. While evidence as to how an enactment is operating in practice, cannot be admitted as extrinsic evidence relevant to its proper construction, it does serve to show how the construction urged for the Federation, would impact upon the proper achievement of the statutory purpose.

62 That purpose, in the submissions advanced by the Federation, was said to be consistent with the purpose of predecessor sections of the PSEM Act, which were submitted to have been designed to ensure merit selection and that the Public Service Board was the final arbiter in relation to external appointments. Given the nature of casual employment at TAFE, it is difficult to see that these purposes could be achieved, on the construction of the TAFE Act here urged by the Federation. To the contrary, that construction would remove the requirement for merit selection, in the case of casuals and permit complaints in relation to their employment to be determined by this Commission.

63 Reference to the recent Court of Appeal decision in State of New South Wales v Paige (2002) 115 IR 283, also confirms these conclusions. There, the Court had cause to consider predecessor legislation to the TAFE Act, the Education Commission Act 1980. That Act applied both to TAFE teachers and teachers employed in schools. (It was the provisions applying to school teachers which arose for consideration.) It is pertinent to note that this legislation had features in common with the PSEM Act and significant differences to those contained in the TAFE Act. For example, in Division 3, Members of the Technical and Further Education Teaching Service of Part IV, The Teaching Service, provision was made for 'appointment' to permanent positions established within the staff of TAFE (ss54 and 55). The appointment of persons who were not officers of TAFE to permanent positions in TAFE was dealt with, (s55(5)); as was appointment 'temporarily on a full time, casual or part time basis to any such position' (s56). Appointment to vacant positions was dealt with in s64; retirement in s77 and then vacation of positions in s78. These latter two provisions applied to both TAFE teachers and school teachers. Notably, s78, like many of these other provisions, does not have a counterpart in the present TAFE Act. It provided: 78. Vacation of position

An officer of a Teaching Service shall be deemed to have vacated his position if -

(a) he dies; or (b) he resigns his position by writing signed by him and delivered to the appropriate Director-General and his resignation is accepted by that Director-General.

64 In Paige, Spigelman CJ considered the question of whether the teacher concerned had resigned. In doing so he dealt with the statutory scheme and its interaction with the common law of employment. At p328, his Honour observed: 'In the context of public sector employment it is often the case that the provisions of a contract and of a statute exist side by side. The distinction between persons who occupy an office and those persons who are employees is often of significance. (See generally McCarry, Aspects of Public Sector Employment Law , Law Book Company, 1988, Ch 2.) The creation by the Teaching Services Act of "positions" is a statutory equivalent of the common law concept of an "office", that may exist side by side with a separate regime regulating conditions of employment. The issue is whether s78, expressed in terms of a vacancy in a "position", extends to encompass the termination of the contractual relationship.'

65 His Honour had earlier observed at pp327-8: 'Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible.

The historical position that resignation from offices was not complete until acceptance, has often been modified. Although it is still common to talk of resignations in a contractual context being "tendered" and "accepted", such formulations are "merely linguistic courtesies": see Marks v The Commonwealth (1964) 111 CLR 549 at 571 per Windeyer J.

There are, however, particular offices to which special considerations attach, so that a resignation does not take effect until acceptance. It was not suggested that the office of principal of a public school was of this kind. Nor did the Appellant seek to rely on any general principle relating to service in an office under the Crown: see eg. Marks v The Commonwealth at 557 per Kitto J; cf at 586-588 per Windeyer J.'

66 At p329, his Honour concluded that: 'The submissions in this Court were not directed to the interrelationship between the occupation of the "position" under the Teaching Services Act and the status of persons as Crown employees. Similar issues arise elsewhere in the public service under different statutory regimes. In such a context, this Court ought not, in the absence of submissions directed to the issue, determine whether or not the occupation of a "position" and the employment relationship are in some manner coincident, so that s78 ought to be construed to modify the common law principle with respect to withdrawal of a resignation."'

67 While these observations are not directly in point, they help throw light upon the proper resolution of the matters which here lie between the parties. A comparison of the statutory scheme in the TAFE Act and that of predecessor legislation, such as the Education Commission Act 1980, which had many features in common with the PSEM Act, which are now absent in the TAFE Act, shows a very marked departure from the former strictures of public sector appointment at TAFE. The common law concept of 'office' appears to be absent in the TAFE Act. Under the TAFE Act, the TAFE Commission may 'employ such staff as it requires' (s15). Contrary to the arguments advanced by the Federation, it must be concluded that the use of the word 'position' in s19 of this modern legislation, was plainly not intended to reflect the creation of an 'office' or 'permanent position' in the public sector, with all that flowed from such concepts in earlier legislation, as discussed by Spigelman CJ in Paige. Rather, like the private sector with which it was being redesigned to compete, TAFE was to be free to determine what staff it required to perform its work from time to time (s15), the basis upon which staff is to be employed (s16) and to make appointments and promotions of staff at TAFE, on the basis of a merit selection process (s18). Those purposes are entirely consistent with a desire to ensure that all appointments to TAFE staff are not to be challenged in proceedings such as this (s19).

68 The Federation also submitted that at the time the TAFE Act was enacted, the provisions of the CCYP Act were not in contemplation by the legislature. That is unarguably so. Had the legislature, when later enacting the CCYP Act, wanted to make decisions of the TAFE Commission about appointment of staff reviewable, in so far as they were affected by the requirements of the CCYP Act, it could have done so. It did not. Rather by s44(2) the existing rights which employees had in relation to employment or termination of employment were preserved. Section 19 of the TAFE Act does not grant such rights. It comprehensively restricts them. It follows that the provisions of s44 of the CCYP Act do not assist the case the Federation sought to advance.

69 It should finally be noted that in order for the construction urged for the Federation to be adopted, it would be necessary to imply into s19 of the TAFE Act, the word 'permanent' as qualifying the word 'position'. Courts are always slow to adopt such an approach to statutory construction. (See, for example, the discussion in Pearce and Geddes Statutory Interpretation in Australia, 5th edition, at pp40 to 45.) The implication of that word, or indeed, the reading down of the word 'position' by reference to the unstated word 'permanent', is not necessary, in order that the purposes of the TAFE Act be achieved. Indeed, given the consequences of that approach, it must be concluded that, to the contrary, it would frustrate the statutory purpose. These are but further good reasons for refusing the construction urged for the Federation.

70 It follows that it must be concluded that the case advanced for the Federation was not made out. It was not consistent with either the plain words of the section or the purpose underlying the legislation, nor the construction of the section in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996.

71 Having come to this conclusion, I must, nevertheless, note that there remains a great, and it seems to me potentially unfortunate, irony in the outcome of the processes adopted by TAFE in this case. The evidence demonstrated that the DET disciplinary process, which led to the member's ultimate resignation from his former position of principal, did not ever have the outcome that the member was considered to be an inappropriate person to continue teaching in its schools. To the contrary, the resignation was agreed, in order that the member's retirement income could be maximised. Despite this, the DET records apparently now note that there was a directed resignation of the member. This has led to the Screening Unit assessment, that the member is of medium risk and so precluded from employment under the applicable TAFE policy.

72 The particular circumstances of this case were, however, that the member was charged with a number of breaches of discipline by the DET, after some 30 years service. He denied all charges, but some were found proven after investigation by DET, with the result that the punishment selected was demotion to the position of deputy, from that of principal. Termination of employment was plainly not thought necessary by the DET, thereby ensuring that the member would have had continued and indeed, perhaps, closer, contact with children, had he not retired. Presumably before he retired, that contact continued. The DET's decision was the subject of an appeal to GREAT, in which concerns about the way in which the investigation was conducted, were a feature, as was a continued denial of the allegations.

73 Those appeal proceedings were settled by the parties, on the basis of a resignation prior to demotion, given the member's proximity to retirement age and the consequences of the demotion for his pension entitlements. Such a settlement seems entirely understandable, given the nature of the allegations found proven; the member's long record of service with DET; his proximity to retirement and the monetary consequences of the demotion. The way in which DET then recorded the outcome of the settlement, has plainly led the Screening Unit to a medium risk assessment. The upshot is that TAFE has approached the DET assessment process in such a way, that the member's employment at TAFE is thereby now entirely precluded, a result at odds with the view taken by DET itself, at the time of the termination of the employment. This outcome undoubtedly reflects TAFE's proper concern to ensure the safety of children and young persons and the results of the policy adopted to ensure compliance with the CCYP Act. This result is, nevertheless, quite incongruous, given the undoubted fact that in 1997, DET plainly did not believe that the safety of children and young persons required the termination of the member's employment by it.

74 I have concluded that the Commission has no jurisdiction to make the orders here sought. In coming to that conclusion, it must be observed, however, that the difficulty to which the Federation has drawn attention in this case, was one which commonsense suggests should receive some attention, by TAFE, DET and the Children and Young People Commission.

75 The CP Act provides an external mechanism for a review of the circumstances of a person convicted of a serious sexual offence. The legislation does not provide a similar mechanism for review of the circumstances of a person the subject of earlier disciplinary proceedings such as those which here arise for consideration. Nor does the DET/TAFE policy. The particular circumstances revealed in this case, where at the time of the disciplinary proceedings there was, in reality, no concern on DET's part about the member's continued employment, after an investigation of the circumstances and where some years later, TAFE, which has not investigated those circumstances itself, nevertheless, concludes that the risk level which the member poses is incompatible with any employment, seems most peculiar on the evidence brought in these proceedings.

76 A review mechanism might, of course, lead to no different result in any particular case. Its absence, however, suggests that TAFE and indeed perhaps other employers, might be excluding from employment persons who, in reality, pose no threats of the kind to which the assessment process in question is directed - namely threats to children and young people.

77 I am satisfied however, that these are matters which the Commission may not deal with by way of order. For all of the reasons given, I order that these proceedings be dismissed. ------------------------

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