Oceanic Life Ltd and Another v Chief Com

Judgment 1These proceedings concern a dispute notified under s 130 of the Industrial Relations Act 1996 (the Act) by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the PSA). The respondent to the Notification is the Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries - Fisheries Division) (the DPI). 2The dispute had its genesis in correspondence between the parties during which the PSA expressed its concern that Fisheries officers who have held long-term temporary appointments for three years or more have been wrongly excluded from permanent appointment under the Public Sector Employment and Management Act 2002 (the PSEM Act). The correspondence discloses that at least one unsuccessful applicant for permanent employment (Dr Michael Lowry) was refused a permanent appointment on the basis that he was found not eligible for appointment under s 31 of the PSEM Act because his, "position is funded by the recreational trust on a project-by-project basis. There is no guarantee of ongoing work". 3Section 31 of the PSEM Act sets out a procedure for the appointment of long-term employees to "officer positions". The availability of ongoing work is one criterion in relation to which an appropriate Department Head must be satisfied before making a recommendation for appointment to an "officer's position" under s 31(3). 4Section 31 of the PSEM Act relevantly provides: (1) For the purposes of this section, a long-term employee is a Departmental temporary employee whose employment as such an employee falls within a continuous employment period of at least 2 years. (2) A long-term employee may, with the approval of the Commissioner, be appointed to an officer's position (other than a senior executive position) in a Department if the appropriate Department Head has made a recommendation in accordance with this section for the appointment of the employee to the position. (3) A recommendation for the appointment of a long-term employee to an officer's position may be made only if each of the following requirements is satisfied: (a) the employee must, at some stage of the temporary employment, have been selected to perform duties at a grade that is the same as (or similar to) the grade of the position concerned (whether or not the duties of the position are substantially the same as the duties performed during the temporary employment), (a1) the employee was performing duties at that grade following some form of open competition that involved the selection of the employee as the person who, in the opinion of the Department Head, had the greatest merit among the candidates concerned, (b) the rate of salary or wages proposed to be payable to the holder of the position concerned at the time of appointment must not exceed the maximum rate payable for Grade 12, Administrative and Clerical Division, of the Public Service, (c) the appropriate Department Head must be satisfied that ongoing work is available in respect of the employee in the Department, (d) the appropriate Department Head must be satisfied that the employee has the qualifications, experience, standard of work performance and capabilities to enable the employee to perform the duties of the position concerned, (e) (Repealed) (4) An appointment under this section is not an appointment to which section 19 applies. (5) Section 23 does not apply to an appointment under this section unless the Department Head otherwise directs in a particular case. 5The Notification of Dispute relies upon, "the following industrial matters": 1. Part 2.4 of the Public Sector Employment and Management Act 2002 ("PSEM Act") applies to departmental temporary employees. 2. Section 31 of the PSEM Act provides that a long term temporary employee (more than 2 years' continuous employment) that meets the requirements set out in this section can be appointed permanently to an officer's position if the appropriate Department Head has made a recommendation in accordance with the section (with the approval of the Director of Public Employment). 3. Long term temporary employees have in the past made applications for permanent appointment under s 31 of the PSEM Act that have not been approved by the Director General. Some of these employees have not been given a reason and others have been given the reason that there is no guarantee of ongoing work (in circumstances where they have been continuously employed for many years doing ongoing work). 4. The PSA has questioned the Director General's application of requirements set out in s 31 of the PSEM Act. The Department advised that in the majority of cases the employee's applications have not been approved on the basis that there is no guarantee of ongoing work in respect of the employee because at least 20% of the funding for salaries for these positions comes from non NSW Government sources. 5. Most of the temporary positions are funded from revenue collected from either the Recreational Fishing Trust or the Commercial Fishing Trust, being trusts set out at s 233 of the Fisheries Management Act 1994. 6. The source of money for the Fisheries Trust Funds is the collection of fishing licence fees. These fees were introduced in or around 2000 and at that time the Second Reading Speech emphasised the ongoing nature of the fees and the Funds. 7. Operationally, the Funds are held in the Special Deposits Account ("SDA"). The Special Deposits Account is operated under the auspices of the Public Finance and Audit Act 1983, just as the Consolidated Revenue Fund is. 8. There is nothing in the way that the SDA is operated that leads to the conclusion that persons whose salary is paid from that fund are not engaged in ongoing work. 9. The reliance by the Director General (or delegate) on the Trust Funds as meaning that there is no ongoing work is without foundation. There is no actual connection, direct or indirect, between the source of salary funding from a Trust Fund, and the ongoing nature of the work for which the fisheries officer is employed. 10. The Director-General (or delegate) has misconstrued the meaning of "ongoing work" in s 31(3) of the PSEM Act. 11. On the proper interpretation of s 31(3)(c) of the Public Sector Employment and Management Act 2002, the fact that an employee's salary is paid from one of the Trusts set out at s 233 of the Fisheries Management Act 1994 is not determinative of the question of whether ongoing work is available in respect of the employee as set out in s 31(3)(c) of the Public Sector Employment and Management Act 2002. 6Both the correspondence between the parties, earlier referred to, and the Notification of Dispute focussed on s 31(3)(c) of the PSEM Act, namely, the requirement to be satisfied that ongoing work is available as one of the steps necessary under the sub-section for providing a basis for a recommendation as to whether or not a long-term temporary employee may be appointed to an officer's position. During a compulsory conference convened for the hearing of the dispute, the PSA contended that the appropriate Department Head had failed to properly exercise his discretion under s 31(3)(c) with regard to those long-term temporary employees who had applied unsuccessfully for appointment to permanent positions. The DPI filed a Notice of Motion seeking an order that the Commission strike out or dismiss the Notification for want of jurisdiction. The grounds and reasons set out in the Motion rely essentially on the operation of s 22(1) of the PSEM Act. The grounds and reasons set out in the Motion are extracted in full below: 1. Save for the operation of Section 22 of the Public Sector Employment and Management Act 2002 ("the PSEM Act"), in conjunction with Section 160 of that Act, the Commission may endeavour to resolve an industrial dispute notified to it by, amongst other parties, an industrial organisation of employees. 2. The PSA, being such an industrial organisation of employees, has purported by its Notification filed on 29 August 2012 to notify the Commission of an industrial dispute. 3. The effect of Section 22 of the PSEM Act is to expressly exclude any "matter, question or dispute" relating to the appointment or failure to appoint a person to a vacant position in the public service from the definition of "industrial matters" for the purposes of the Industrial Relations Act 1996. 4. Relevantly to the current notification, Section 22(2) provides that the jurisdictional limitation applies whether or not any person has been appointed to the vacant position. 5. Furthermore, Section 22(3) provides: "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 in the public service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment." 6. Thus, the effect of these provisions is to limit the jurisdiction of the Commission to deal with matters that would, in the absence of s 22 of the PSEM Act, be considered "industrial matters". 7. Section 160(2) of the PSEM Act removes any ambiguity as to the supremacy of s 22 over provisions in the Industrial Relations Act 1996. 8. The PSA's dispute notification is impermissibly directed at the alleged "failure" of the Respondent department to "appoint" long term temporary employees to permanent officer positions within the public service in a way which accords with the PSA's view of how the Director General (or delegate) ought exercise his or her functions under Section 31 of the PSEM Act (especially under Section 31(3)(e)). 7Section 22 of the PSEM Act is extracted in full below: (1) The appointment or failure to appoint a person to a vacant position in the Public Service, 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 (other than Part 7 of Chapter 2 of that Act). (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 in the Public Service, 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 Part 7 of Chapter 2 of the Industrial Relations Act 1996. (5) Nothing in this section prevents any of the following proceedings being brought by a member of staff of a Department in relation to the appointment of another member of staff of any Department to a position in the Public Service: (a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part, (b) proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act. 8In submissions on the Motion, the DPI acknowledged that the Director-General has pursued a Policy on the non-availability of ongoing work if the source of funding for the work is from non-New South Wales government sources such as the trusts set up under the Fisheries Management Act 1994 (the FM Act). Division 3 of Part 8 of that Act sets up Special Fisheries trust funds. According to the DPI, the money in those trust funds is under the control of the Minister, as distinct from the Director-General, and can be expended by the Minister only for the purposes authorised under Division 3. Under s 234(2)(b), moneys from the funds may be allocated to pay scientific officers to carry out research into freshwater fish. The DPI contended that the effect of the provisions falling within Division 3 of Part 8 (which includes s 234) was that the source of moneys to the funds may be problematical and the allocation of funding subject to change which may in turn affect the employment of those scientific officers employed under the terms of the trust funds. In summary, the policies and priorities for expenditure of trust moneys are subject to ministerial control and do not form part of consolidated revenue. Moreover, the employment of temporary employees is contingent upon such expenditure being authorised and maintained. Further, the Director General does not control these matters. Given these uncertainties, the Director General, consistent with prevailing policy, would not be satisfied that ongoing work is available where staff are paid from one of the trust funds. 9The DPI's central contention on the Motion was that the effect of s22(1), by reason of its expressed exclusion of any, "... dispute relating to the appointment, or failure to appoint a person to a vacant position ...", from the definition of "industrial matter" under the Act, was to limit the Commission's jurisdiction to deal with matters which would otherwise be considered "industrial matters". The subject matter of the PSA's notification of dispute, according to the DPI, clearly relates to a failure to appoint a number of long-term temporary employees to permanent positions and is therefore not an "industrial matter" in relation to which the Commission has power to hear under the Act's dispute resolution procedures. 10In support of the contention, the DPI relied on several authorities which have considered s 22(1) of the PSEM Act and its predecessor provisions. The first of these is the decision of the Full Bench in Public Service Association (NSW) v Public Service Board (NSW) 1985 14 IR 414 (the Ombudsman's case). The decision considered whether the Commission had power to make an order or award which would require the Public Service Board (NSW) (the Board) to cease to approve or allow the filling of positions of investigating officers in the Ombudsman's Office on a term basis only, that is, by temporary appointments under ss 75 and 76, or temporary employment under s 80 of the Public Service Act 1979 No. 89 (PS Act). The Board opposed the making of any such order or award contending that the Commission had no jurisdiction to do so. The Board relied upon s 65A of the PS Act, a predecessor provision to s 22 of the PSEM Act. In the course of consideration, the Full Bench remarked that the words in s 65A(1) (which correspond to s 22(1)) are "wide and unequivocal terms". The Full Bench was satisfied that the award which was sought and which required the Board to apply its general policy with respect to the appointment of investigating officers (that is to employ those persons on a permanent basis rather than on a temporary basis) related to the appointment or failure to appoint a person under s 65A(1) and accordingly the Commission lacked jurisdiction to entertain the application (at 416-417). 11The second authority relied upon by the DPI is the Full Bench decision in Re Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment) Award (2003) 129 IR 369 (the Fisheries case). The decision, which deals squarely with the interpretation of s 22(1) of the PSEM Act, concerned a dispute between the PSA and Fisheries NSW in relation to work bans imposed by Fisheries officers in respect of a claim to increase the number of Fisheries officers at various coastal offices. The dispute proceedings were adjourned pending the filing of an application to vary the relevant award, and later the filing of a new award. The dispute proceedings and the application for an award were referred to the Full Bench. During the Full Bench proceedings an issue was raised as to whether the Commission had jurisdiction under s 22 of the PSEM Act to make an award setting mandatory minimum staffing levels for full-time Fisheries officers such as to require NSW Fisheries to employ an additional 35 Fisheries officers: at [4]. 12The decision also considered and rejected an argument raised in the Ombudsman's case that s 65A of the PS Act should be read narrowly as applying to individual appointments or promotions only: at [64] [65] [67]. The Full Bench in the Fisheries case adverted to the purpose of s 65A which it concluded was to, "remove from the scope of an 'industrial matter' any matter, question or dispute relating to the appointment or failure to appoint a person to a position so as to remove the possibility of a de facto right of appeal to the (Commission) under the Act": at [66]. Its conclusion relied in part upon an earlier Full Bench decision in Re New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions of Award 1996 (1999) 123 IR 360 (the TAFE Commission case). In relation to that decision, the Full Bench (in the Fisheries case) made the following observations (at [70]): We are strengthened in this view by the findings in the TAFE case. There, the majority (Wright J, President and Schmidt J), dealt with an analogous provision in the Technical and Further Education Commission Act 1990 ("the TAFE Act"). In the TAFE case, the TAFE Commission opposed an application by the New South Wales Teachers' Federation to vary an award to, inter alia, establish new part time positions and appoint persons to those positions to properly reflect the then existing administrative arrangements. The application was opposed on the basis that s 19 of the TAFE Act (which is the same in all relevant respects to s 22 of the 2002 Act presently under consideration) operated to oust the jurisdiction of the Commission. The majority, in finding that s 19 of the TAFE Act did in fact have that effect, stated (at 368-369): 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 s 19 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 s 19 of the TAFE Act, the Commission has no power to make an award as to such matters. As there is no ambiguity on the face of these statutory provisions, it follows that the question which requires our determination is whether the claim (or any part of it), sought to be advanced in this case by the Federation, as in the Ombudsman's case, is beyond the Commission's power as it relates to the appointment or failure to appoint persons to the staff of the TAFE Commission. In so far as the claim seeks an award which requires particular part-time casuals employed under the award to be appointed to part-time positions or requires the appointment of temporary part-time staff to permanent part-time positions to which they are not presently appointed, the terms and effect of s 19 preclude jurisdiction. The award provisions requiring the creation of positions to which such persons may be appointed clearly relate to questions of appointment and are also beyond the Commission's award making power. 13The Full Bench in the Fisheries case also concluded that s 22(1) is not confined to "officer positions" which are "vacant" as defined by s 26 of the PSEM Act. Its reasons for so concluding are set out at [87] and [88]: [87] Part 2.3 of the 2002 Act deals with the appointment process within the public service generally. Section 22 is but one part of that process, dealing with the circumstances in which proceedings may be brought in respect of any particular appointment (or failure to appoint). The Association's argument that s 22 refers only to "officer" positions (not temporary or casual positions) which are "vacant" as defined by s 26 of the 2002 Act (not new positions created by the proposed award) necessarily means, and Mr Chin conceded that it means, properly in our view, that the whole of Pt 2.3 of the 2002 Act must have a similar interpretation. [88] We accept the respondent's submission that the interpretation of s 22 (and therefore of Pt 2.3) proposed by the Association would produce an absurdity in the appointment process within the Public Service. To accept the Association's argument would be to accept that Pt 2.3 regulates the appointment of casual and temporary employees, but not permanent employees. Notwithstanding the able and innovative argument put by Mr Chin, we do not agree with the Association's contentions in that respect. 14As will become apparent in these reasons, the PSA's contentions in these proceedings do not purport to rest directly on an argument that s 22(1) precludes the jurisdiction of the Commission to deal with a dispute relating to the failure to appoint long-term employees to permanent positions. Rather, the PSA's contentions focus on the narrower issue of ongoing work which it says constitutes a step under s 31(3)(c) of the PSEM Act) which is sufficiently remote from the ambit of s 22(1) so as not to be caught by it. 15In developing the contention the PSA submitted that s 31(3)(c) involves an intermediate act or step to appointment which proceeds from a decision, in the exercise of discretion, as to whether to make a recommendation for appointment. 16The PSA also contended that the DPI's application on the Motion was premature in circumstances where neither party has fully developed their evidentiary cases, or their legal cases. 17The PSA further contended that the positions under consideration in s 31(3)(c) of the PSEM Act are not "vacant" positions because the conversion from temporary employment to an officer holding a permanent appointment does not involve the appointment of a person to a vacant position. Section 22(1), which refers to vacant positions was said to have no operation as a consequence. In support of this contention, the PSA relied upon documentation tendered into evidence on the Motion. As a general proposition, the PSA contended that the documentation used the language of appointment which is consistent with the permanent appointment of officers. Particular attention was directed to the documentation relating to the permanent appointment of Carla Ganassin under s 31 of the PSEM Act. The point sought to be made in relation to that documentation was that Ms Ganassin's permanent appointment proceeded from a position as a temporary employee held against a position number which was carried over, or remained the same, when she was offered a permanent appointment. The documentation indicates that Ms Ganassin, while a temporary employee, held position number 001340 and that this position number was carried forward when she was permanently appointed to the position of Conservation Manager. The PSA relied on this as confirmation that the appointment of long-term temporary employees under s 31 does not involve appointments to vacant positions. 18The documentation was also relied upon in support of the PSA's contentions concerning the intermediate nature of a decision with regard to ongoing work under s 31(3)(c), that is, as a step sufficiently removed, or remote, from the concept of appointment (to a permanent position) so as to fall outside the ambit of s 22(1). According to the PSA, the documentation discloses that the process of determining whether or not a long-term employee meets the criteria for recommendation under s 31(3) is consistent with a construction that the operation of s 22(1) is not so broad as to "reach backwards in time" or capture the process at the stage of s 31(3)(c). 19It was also emphasised by the PSA that none of the authorities relied upon by the DPI in support of its application on the Motion dealt with the application of s 22 (or its predecessor provisions) to s 31 of the PSEM Act. According to the PSA, a number of the provisions in the PSEM Act are contra-indicative of a conclusion that s 22(1) applies to s 31. First, s 22(1) is expressed to apply to vacant positions whereas s 31 is silent as to whether it involves appointments to vacant positions. Secondly, s 26 of the PSEM Act, which appears in Part 2.3 of Chapter 2, deals with the circumstances in which an officer's position becomes vacant. It was conceded by the PSA that the circumstances in which an officer's position may become vacant are not constrained or confined by s 26. As I noted above, the Full Bench in the Fisheries case did not accept an argument that a position created by the proposed award is not a vacant position within the meaning of s 26 of the PSEM Act: see [89]. The PSA contended, however, that the absence in the legislation of an expressed requirement to appoint a temporary employee to a vacant position means that s 26 has no work to do in relation to appointments under s 31. For completeness, s 26 of the PSEM Act is set out below: (1) An officer's position becomes vacant if the officer: (a) dies, or (b) is removed from the position, or retires or is retired from the position, under this or any other Act, or (c) resigns the position in writing addressed and delivered to the appropriate Department Head and that Department Head accepts the resignation, or (d) abandons his or her employment in the Public Service. (2) This section does not affect any other provision by or under which an officer's position becomes vacant. (3) This section does not apply to officers holding chief or senior executive positions. 20The PSA also raised an argument, the effect of which was that having regard to s 7 of the PSEM Act, the legislature did not intend that s 22 would operate in respect of appointments under s 31. As I understood the contention, s 7(3) of the PSEM Act gives priority to permanent appointments and that being so the restraint of the Commission's jurisdiction suggested by s 22 is inconsistent with ensuring that s 7 is adhered to, by reference to s 31. It was submitted by the PSA that applying the rules of statutory construction, primacy would be given to s 31 and s 7 so as to ensure that the Commission is not deprived of its power to address failures by Departments to comply with s 7 by applying s 31 appropriately. Apart from a reference to the decision of Boland J, President, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Justice and Attorney General (Corrective Services NSW) [2010] NSWIRComm 148 at [10] where his Honour remarked that s 7(3), "gives priority to the first category of employment" (namely, "officers ... or other staff positions in the Department" under s 7(1)(a)), the PSA's contentions on the issue were not developed further. At this point, I should record my view that there can be little doubt that Part 2.3 of Chapter 2 (which includes s 22) applies to s 31 (which appears in Part 2.4 of Chapter 2). Section 31(2) is expressed to apply to the appointment of a long-term employee to an officer's position. Part 2.3, by virtue of s 16, applies "to, and in respect of, appointments to positions in the Public Service ...". Section 17 provides that appointments to vacant positions in a Department are to be made by the appropriate Department Head. Section 31(4) provides that appointments made under s 31 are not appointments to which s 19 (which deals with the merit selection process) applies. Section 31(5) provides that s 23 (which deals with appointments on probation), does not apply to appointments made under s 31, "unless the Department Head otherwise directs in a particular case". Sections 16, 17, 19 and 23 all fall within Part 2.3 of Chapter 2. 21Section 7 of the PSEM Act sets out three categories of employment. The first category referred to in s 7(1)(a) deals with permanent appointments ("officers"). The second category under s 7(1)(b) concerns temporary employees being persons, "employed to carry out work ... on a temporary basis". The third category under s 7(1)(c) concerns casual employees. Section 7(3) provides that, "[T]he usual basis for the employment of staff in a Department is to be the employment of officers". This provision has been construed by a number of authorities as conferring primacy, or giving priority to, the employment of officers, that is, permanent appointment. I have already referred to the remarks of Boland J, President, in the decision cited above as one such authority. In the Ombudsman's case, a Full Bench referred to a general policy of the Board, reflected in the relevant provisions under the PS Act, that permanent full-time positions shall be occupied by officers on a permanent basis and not by way of temporary appointment or temporary employment. However, in my view, that is all s 7(3) of the PSEM Act, on its face, purports to do. It does not follow from the mere fact that s 7(3) accords primacy to permanent appointment that, together with s 31, it operates, or has the effect of, conferring primacy on both provisions over and above s 22 because of some perceived inconsistency between the two sets of provisions. Without the benefit of any developed submissions on this particular issue the Commission finds itself unable to undergo any further analysis of the issue. 22In my view, there are two primary questions which need to be decided on the DPI's preliminary application. The first of these is whether the positions in issue, which involve the permanent appointment of long-term employees in accordance with the processes under s 31, may be properly characterised as permanent appointments to vacant positions. If they are to be characterised as vacant positions, a second question arises as to whether the dispute brought under s 130 of the Act falls within s 22(1) as one "relating to" the failure to appoint the long-term temporary employees to permanent positions in accordance with the procedures under s 31. If the answer to the second question is in the affirmative, it follows that the Commission is precluded from dealing further with the subject matter of the dispute because it is not an "industrial matter" under the Act. Prior to the conclusion of the hearing of the preliminary application, the Commission requested further submissions in writing from the parties in relation to the two questions. The submissions were later provided and I have taken them into account in this decision. 23The first observation which may be made about the words of s 22(1) is that they are, "plain and unequivocal": Fisheries case, at [64] (commenting on s 65A of the PS Act, a predecessor provision to s 22(1)). A similar observation was made in the TAFE case on the operation of s 19 of the Technical and Further Education Commission Act 1990 No. 118, a provision analogous to s 22(1) (at 368-369, in the passage earlier extracted from the Fisheries case at [70]). 24In order to consider the first question, that is, whether the appointments of long-term employees (or more particularly the failure to appoint long-term employees) under s 31 can be said to constitute, or involve appointments to vacant positions, it is necessary to have resort to a number of statutory provisions under the PSEM Act. 25It was not in issue between the parties that a reference to "officer" or "officers" in the PSEM Act signifies permanent appointment. Section 5 of the PSEM Act provides that "officer" and "temporary employee" mean "officer" and "temporary employee" referred to, respectively, in s 7. Section 7, to which I have adverted earlier in this decision, provides (in full): (1) Staff may be employed in a Department in the following categories: (a) officers-being persons employed in chief or senior executive positions or other staff positions in the Department, (b) temporary employees-being persons employed to carry out work in the Department on a temporary basis, (c) casual employees-being persons employed in the Department on a casual basis. (2) Temporary employees may be employed in following subcategories: (a) Departmental temporary employees-being persons employed under Part 2.4 to carry out work in a Department, (b) special temporary employees-being persons employed under Part 2.5 to carry out work for a political office holder. (3) The usual basis for the employment of staff in a Department is to be the employment of officers. (4) Subsection (3) does not apply to the employment of staff for the purpose of carrying out work for a political office holder. 26It is apparent from the wording of s 7 that the legislature has drawn a distinction between the employment of "officers" and "temporary employees". Under s 7(1)(a), "officers" include persons employed in "staff positions". Temporary employees on the other hand are employed, "to carry out work". The distinction is maintained throughout Chapter 2 of the PSEM Act. Section 27(1), for example, provides for the employment of Departmental temporary employees, "to carry out work ... for a particular period". Section 27(3)(b) provides that a temporary employee may carry out the duties of a position that is temporarily vacant. On its face, this provision suggests that temporary employees do not hold positions. Under s 9(1)(b), "staff positions" in a department consist of, "such other positions as the appropriate Department Head from time to time determines in accordance with this Act". The effect of these provisions in my view is that officers, who are permanently appointed, are appointed to "positions". Temporary employees are not appointed to "positions", instead they are employed "to carry out work". Any doubt about this construction may be resolved by the clear words of s 9(5) which provide: Temporary employees and casual employees are members of staff of, but do not hold positions in, a Department. 27The DPI submitted that the statutory directive in s 9(5) is determinative of the question, that is, (relevantly) long-term temporary employees of Fisheries NSW do not hold staff positions within the Public Service. Based on the clear words of the provision, together with the other provisions which maintain the distinction between officers holding "positions" and temporary employees who are employed to "carry out work", I find myself in agreement with the submission. 28In attempting to rebut this particular construction, the PSA relied on evidentiary material in the form of documentation to establish that some temporary Fisheries officers have been permanently appointed to positions in which they have been performing duties immediately prior to their (permanent) appointments under s 31. What was said to follow from the documentation was that the positions were not "vacant" at the time immediately before they were filled by the same individuals by way of permanent appointment. However, underpinning this contention was the reliance on documentation which disclosed that Ms Ganassin, for example, held a position number as a temporary employee which was unchanged when she was permanently appointed under s 31. I am unable to accept the contention. The fact that the documentation tends to indicate a particular state of affairs, cannot, of itself, be determinative of the issue, particularly when recourse is had to the statutory regime which compels the contrary conclusion. 29Nor, in my view, is it determinative of the issue that s 31(2) avoids the words "vacant position" and instead uses the words "officer's position". According to the PSA, had the legislature intended to use the term "vacant position" in s 31(2), it would have done so and the fact that it does not militates against findings, particularly at this interlocutory stage, either that the appointments of temporary employees under s 31 involve appointments to a vacant position or that s 22 applies to oust the Commission's jurisdiction to deal with disputes in relation to the proper interpretation of s 31. As I have said, however, the mere fact that the words "vacant position" are absent from s 31(2) is not, and cannot be, without more, determinative of the issue. The clear effect of the statutory regime, with particular regard to s 9(5), is that temporary employees do not hold positions in a Department. It follows from this analysis that appointments of long-term temporary employees made under s 31 are, or constitute, appointments to vacant positions. 30Having concluded that appointments to (permanent) positions in accordance with the procedures under s 31 involve appointments to vacant positions, it falls to decide the second question I have identified, which is whether the present dispute is properly characterised as one "relating to" the failure to appoint to permanent positions the long-term temporary employees in accordance with the procedures under s 31. 31According to the PSA, the issue at the heart of the dispute focuses on a miscarriage of the Director-General's discretion with regard to the requirement to be satisfied that ongoing work is available under s 31(3)(c). This issue it was submitted is sufficiently remote from the issue of permanent appointment to a position so as not to be caught by s 22(1). 32Pearce DC and RS Geddes in Statutory Interpretation in Australia, 7th Edition, Lexis Nexis 2011, describe the phrases, "relates, to ...", "related to ..." and "with respect to" as "connecting phrases". In Oceanic Life Ltd and Another v Chief Commissioner of Stamp Duties (1999) 168 ALR 211, Fitzgerald JA summarised a number of cases that have considered the meaning of the expression, "relating to". At [56], his Honour made the following observations: The width of the phrase "relating to" is undoubted. Lord Macnaghten stated that "[t]here is no expression more general or far-reaching", IRC v Maple & Co (Paris) Ltd (1908) AC 22, 26. See also Fountain v Alexander (1982) 150 CLR 615, 629; Colakovksi v Telecommunications Corp (1991) 100 ALR 111; Secretary, Department of Foreign Affairs & Trade v Boswell (1992) 108 ALR 77; PMT Partners Pty Ltd (in liq) v ANPWS (1995) 131 ALR 377, 398. although the addition of the words "or depending on" was presumably intended to give the combined phrase "relating to or depending on" a wider operation than "relating to". The difficulties of construction presented by such language have also been noted. Taylor J observed that "... the expression 'relating to' ... is ... vague and indefinite ..." and "... leaves unspecified the plane upon which the relationship is [to be] sought and identified." Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, 620. One area of debate has been whether, in particular legislation, a relationship need or need not be "direct" or "direct and immediate". See, for example, Ausfield Pty Ltd v Leyland Motor Corp. of Australia Ltd (No 2) (1977) 14 ALR 457, 460, 462; Re Dingjan; ex p Wagner (1995) 128 ALR 81, 110, 115; Joye v Beach Petroleum NL & Cortans Ltd (in liq) (1996) 137 ALR 506, 514. See also Perlman v Perlman (1984) 51 ALR 317. Overall, the position judicially adopted has been that the operation of the phrase "relating to" is determined by the statutory context and purpose. Butler v Johnston (1984) 55 ALR 265, 268; Hatfield v Health Insurance Commission (1987) 77 ALR 103, 106-107. 33Fitzgerald JA concluded by reference to the authorities summarised that the phrase, "relating to" is of undoubted width and that its operation is to be determined by reference to the statutory context and purpose. I have already referred to the statutory context in which s 22 falls to be determined, as well as its purpose. 34The broad reach of the expression may be illustrated in a decision of the High Court in PMT Partners Pty Limited (In Liquidation) and Australia National Parks and Wildlife Service (1995) 184 CLR 301. Under consideration by the High Court was s 48(1) of the Commercial Arbitration Act 1985 (NT) which provided for an extension of time for the giving of notice of a dispute under a construction contract with the Australian National Parks and Wildlife Service. Section 48 provided: [48] Extension of time (1) Subject to subsection (3), the Court shall have power, on the application of a party to an arbitration agreement or an arbitrator or umpire, to extend the time appointed by or under this Act or fixed by the agreement or by an order under this section for doing an act or taking a proceeding in or in relation to an arbitration. (2) The Court may make an order under this section although an application for the making of the order was not made until after the expiration of the time appointed or fixed for doing the act or taking the proceeding. (3) An order shall not be made under this section extending the time within which arbitration proceedings may be commenced unless: (a) the Court is satisfied that undue hardship would otherwise be caused; and (b) the making of the order would not contravene the provision of an Act limiting the time for the commencement of arbitration proceedings. 35Clause 45 of the construction contract, which was headed "Settlement of Disputes", contained the following terms: All disputes or differences arising out of the Contract or concerning the performance or the non-performance by either party of his obligations under the Contract whether raised before or after the execution of the work under the Contract shall be decided as follows - (a) The Contractor shall, not later than fourteen days after the dispute or difference arises, submit the matter at issue in writing, specifying with detailed particulars the matter at issue, to the Superintendent for decision and the Superintendent shall, as soon as practicable thereafter, give his decision to the Contractor. (b) If the Contractor is dissatisfied with the decision given by the Superintendent, he may, not later than fourteen days after the decision of the Superintendent is given to him, submit the matter at issue in writing, specifying with detailed particulars the matter at issue, to the Principal for decision and the Principal shall, as soon as practicable thereafter, give his decision to the Contractor in writing. If the Contractor is dissatisfied with the decision given by the Principal pursuant to the last preceding paragraph, he may, not later than twenty-eight days after the decision of the Principal is given to him, give notice in writing to the Principal requiring that the matter at issue be referred to arbitration and specifying with detailed particulars the matter at issue, and thereupon the matter at issue shall be determined by arbitration. If, however, the Contractor does not, within the said period of twenty-eight days, give such a notice to the Principal requiring that the matter at issue be referred to arbitration, the decision given by the Principal pursuant to the last preceding paragraph shall not be subject to arbitration. Where a notice is given by the Contractor to the Principal pursuant to the last preceding paragraph requiring that the matter at issue be referred to arbitration no proceedings in respect of that matter at issue shall be instituted by either the Principal or the Contractor in any court unless and until the arbitrator has made his award in respect of that matter at issue. 36The majority, Brennan CJ and Gaudron and McHugh JJ, found that the expression "in or in relation to an arbitration", which appeared in s 48(1), extended to a step which was a condition precedent to arbitration, namely, the step required under clause 45(a) of the construction contract. At 313-314, the majority said: Inevitably, the closeness of the relationship required by the expression "in or in relation to" in s 48 of the Act - indeed, in any instrument - must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears. The nature and purpose of s 48 is clear. It is a provision conferring power on a court to relieve against agreed time limits which might otherwise prevent or interfere with the fair and proper processes of arbitration. Its remedial nature and the consideration that a provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit (42) tend in favour of treating the expression "in or in relation to" in s 48 as being wide enough to encompass the taking of a step, such as that directed by cl 45(a), which is a condition precedent to arbitration, even if arbitration is not the inevitable consequence of that step. And that is so, in our view, even if the agreement is one that allows a party to elect between proceeding in the courts and proceeding to arbitration. The Court of Appeal considered that s 48(3), which conditions the court's power to extend "the time within which arbitration proceedings may be commenced", indicates that "a step initiating arbitration proceedings is the outer limit of what is encompassed by the expression 'relating to an arbitration' in s 48(1)". There is force in this view if, as was suggested in argument, a contrary interpretation would permit of an order extending time for some preliminary step even though, in the circumstances, an order could not be made extending the time within which arbitration proceedings might be commenced. As already indicated, the power conferred by s 48 is one that must be exercised judicially. That means, among other things, that it must not be exercised arbitrarily, capriciously or to frustrate the legislative intent. Rather, it must be exercised in the interests of justice and within the confines of "the purposes for which it was entrusted" (43). Accordingly, if the power is such as to permit of an order extending time for a step which is preliminary to the commencement of arbitration, it would not properly be exercised to extend time for that step if, in the circumstances, an order could not be made extending the time within which arbitration proceedings might be commenced. That being so, sub-s(3) does not, in our view, provide any basis for reading "in or in relation to" as requiring a more direct or immediate connection than that which would ordinarily be suggested by the nature and purpose of s 48(1) of the Act. Nor is there any other matter which detracts from that approach. Thus, s 48(1) extends to a step which is a condition precedent to arbitration even where there is a right to elect between proceeding in the courts and proceeding by way of arbitration. Certainly, it extends to the step required by cl 45(a). 37In the same judgment, Toohey and Gummow JJ made the following observations with regard to the phrase "in relation to" as it appeared in s 48(1) (at 331 and 332): The connection which is required by the phrase "in relation to" is a question of degree. There must be some "association" which is "relevant" or "appropriate". The question of the relevance or appropriateness of the connection is a question which cannot be divorced from the particular statutory context. It was conceded by the respondent, consistently with authority (85), and as recognised in the Court of Appeal, that the earlier stages outlined in cl 45 of the contract of reference to the Superintendent under par (a), and reference to the Principal under par (b), are conditions precedent to a reference to arbitration taking place. They are necessary stops on the route to an arbitration. There is no justification to read down the phrase "in relation to" so as to exclude acts or proceedings which are preliminary to, but necessary for, reference to arbitration. 38A similar analysis may be undertaken in relation to s 31 of the PSEM Act. It sets out a number of precedent steps which may or may not lead to the appointment of a long-term employee to an officer's position. Section 31(3) requires the appropriate Department Head to be satisfied first of the matters set out in paragraphs (a)-(d) inclusive and secondly, if so satisfied, the Department Head may recommend the appointment of a long-term employee to an officer's position. The third step under s 31(2) involves the approval of the Director of Public Employment following a recommendation for the appointment. 39In my view, the requirement to be satisfied under s 31(3)(c) constitutes, or may constitute, a step precedent or on the route to the decision to approve the appointment. In other words, it is a necessary step which may or may not lead to an appointment to an officer's position. It therefore provides a sufficient connection, or is connected, to s 22(1), that is, the dispute about the Director-General's approach to s 31(3)(c) is a dispute "relating to" the appointment or failure to appoint long-term employees to a vacant position and is therefore caught by s 22(1). 40I am mindful that the present application brought by way of a "strike out" motion is governed by the principles set out in Rose v Meriton Apartments Pty Ltd (2007) 169 IR 428 at [33]. I am satisfied that the absence of jurisdiction has been clearly demonstrated for the reasons which I have expressed and accordingly Order 1 sought in the Notice of Motion is granted. The Motion is otherwise dismissed.