PSA and Professional Officers Association Amalgamated Union of NSW v Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General

Industrial Relations Commission (NSW)|2010-09-24|Before: Marks J, Mr J

CITATION: PSA and Professional Officers Association Amalgamated Union of NSW v Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (No 2) [2010] NSWIRComm 137

PARTIES: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (Applicant) Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (Respondent)

CATCHWORDS: INTERLOCUTORY PROCEEDINGS - delegation of power to investigate and make determinations about misconduct and to impose penalty - whether appointment and delegation of powers to decision-maker valid - "member of staff - "casual employee" - held delegation invalid - relief granted - orders made

LEGISLATION CITED: Industrial Relations Act 1996 - s 89, s 130 Public Sector Employment and Management Act 2002 - s 4F, s 38, s 39, s 46

Placer Development Ltd v Commonwealth [1969] HCA 29: (1969) 121 CLR 353 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36 CASES CITED: Reed v Blue Line Cruises Limited (1996) 73 IR 420 Ryde-Eastwood Leagues Club v Taylor (1994) 56 IR 385 Secure Employment Test Case [2006] NSWIRComm 38; (2006) 150 IR 1

Mr A Hatcher of counsel (Applicant) Solicitor WG McNally Jones Staff LEGAL REPRESENTATIVES: Mr J Murphy (Respondent) Solicitor Crown Solicitor

Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (No 2)

Notification under s 130 by Public Service Association and Professional Officers Association Amalgamated Union of New South Wales of a dispute with NSW Department of Corrective Services

1 On 1 September 2009, the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("the PSA") notified a dispute with the respondent New South Wales Department of Corrective Services ("the respondent"). The dispute notification referred to investigations being conducted by the respondent of a number of its members employed by the respondent who had allegedly posted comments on the "Facebook" website about the Commissioner and other senior officers of the respondent. The dispute notification expressed concern about investigations being conducted by the respondent based on allegations of infringement of privacy, defects in the investigation process and an apprehension of bias. Concurrently with the dispute notification, the Commission has before it applications brought on behalf of some of the correctional officers, the subject of the investigations, brought under s 89 of the Industrial Relations Act 1996 seeking relief based on claimed threats of dismissal with particular reference to s 89(7) of that Act. 2 On 9 September 2009, following an unsuccessful conciliation, the PSA filed a notice of motion seeking interlocutory orders, the effect of which would restrain the person charged with determining whether the officers concerned had been guilty of misconduct, Deputy Commissioner Gerry Schipp, from proceeding to determine the matters. After the hearing of the notice of motion and before a decision was issued, the respondent indicated that it would not proceed on the basis that Deputy Commissioner Schipp was the person delegated to determine whether there had been misconduct. It purported to appoint Mr Ken Moroney as the decision maker. I should emphasise that in doing so the respondent did not concede that there was any substance in the submissions made by the PSA that this Commission should make a determination as to the appropriateness of Mr Schipp continuing in that role. 3 The PSA then sought orders in this Commission restraining the respondent from dismissing or taking other disciplinary action with respect to four named officers on the basis of any determination of misconduct made by Mr Moroney. In a decision published on 23 March 2010 (Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36), I acceded to the PSA's application and made a restraining order. The basis for doing so was that Mr Moroney had not been validly appointed by reference to certain provisions of the Public Sector Employment and Management Act 2002 ("the Act"). 4 On 25 May 2010, Mr Laurie Glanfield, the Director General, Department of Justice and Attorney General, purported by instrument of delegation to delegate to Mr Chris Evans, said to be a member of staff of the Department, his functions under Part 2.7 of the Act in relation to the allegations of misconduct against certain named officers. Mr Evans then proceeded to take certain action in connection with the matters including authorising the amendment of certain allegations of misconduct in order to correct typographical errors and, in the case of one of the officers, to add an additional allegation of misconduct. 5 The PSA has asserted that the delegation by Mr Glanfield to Mr Evans was invalid because at the date of the delegation Mr Evans was not a member of staff, as required by the Act and, secondly, that the amendments made were beyond power. The respondent opposed the PSA's application. 6 I shall deal with each of the matters raised by the PSA in turn. Was the delegation to Mr Evans valid?

7 In my earlier decision, I examined the provisions of the Act as they applied to dealing with allegations of misconduct including, specifically, who might deal with those allegations of misconduct. The relevant statutory background is referred to in [8] to [16] of that decision. For completeness, I repeat that material in this decision.

[8] In order to deal with this matter, it is necessary that I refer to some of the provisions of the relevant statute that governs the work which Mr Moroney had been engaged to carry out. The relevant legislation is the Public Sector Employment and Management Act 2002 ("the Act"). In general terms, the Act is intended to regulate "public sector employment and management". The work that Mr Moroney was engaged to carry out concerned allegations of misconduct against the employees of the respondent. The processes in which Mr Moroney was engaged are covered by s 46 of the Act, which is in the following terms: 46 Dealing with allegations of misconduct

(1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or

(b) decide that it is appropriate to take remedial action with respect to the officer.

(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.

(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.

(4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process: (a) decide to take remedial action with respect to the officer concerned, or

(b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both.

(5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section.

[9] This section is contained within Part 2.7 of the Act, which is entitled "Management of Conduct and Performance". There are definitions within s 42 of "disciplinary action" and "misconduct", but it is not necessary, for the purpose of this decision, that I refer to these matters. It is sufficient to observe that the action that may be taken under s 46 is to be carried out by the "Department Head". For relevant purposes, the Department Head is Mr Laurie Glanfield, Director General of the Department of Justice and Attorney General.

[10] "Member of staff" of a Division is defined in s 3 as meaning "a member of the group of staff comprising the Division (whether employed as an officer, temporary employee, casual employee or in any other capacity)."

[11] I set out hereunder the provisions of s 6 of the Act: 6 The Public Service

(1) The Divisions of the Government Service specified in Part 1 of Schedule 1 comprise the Public Service of New South Wales.

(2) Any such Division may be referred to as a Department (or a Department of the Public Service ) for the purposes of this or any other Act. Accordingly, the person exercising functions as Division Head of such a Division may be referred to as the Department Head .

[12] It will be seen that by sub-s (2), the expressions "Division Head" and "Department Head" may be used interchangeably. The parties assumed in their submissions that Mr Glanfield was the appropriate Department Head referred to in s 46 of the Act, and I shall proceed on this basis.

[13] S 7 of the Act sets out the categories of employment within the public service and is in the following terms: 7 Categories of employment

(1) Staff may be employed in a Department in the following categories:

(a) officers - being persons employed in chief or senior executive positions or other staff positions in the Department,

(b) temporary employees - being persons employed to carry out work in the Department on a temporary basis,

(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.

[14] It will be observed that there is a reference to temporary employees by reference to the provisions of Part 2.4 of the Act. I set out hereunder the provisions of s 27 contained within that Part: 27 Employment of Departmental temporary employees

(1) The appropriate Department Head may employ a person who has appropriate qualifications to carry out work in the Department for a particular period.

(2) Persons employed under this Part are Departmental temporary employees .

(3) A person may be employed as a Departmental temporary employee: (a) for the duration of a specified task or project, or

(b) to carry out the duties of a position that is temporarily vacant, or

(d) in connection with the secondment or exchange of staff, or

(4) The employment of persons under this Part is subject to: (a) section 7 (3), and

(b) any other provision of this Act or the regulations concerning the employment of Departmental temporary employees.

[15] I observe at this stage that a person who is a temporary employee is one who is "employed". This is a matter of some significance, and I shall refer to it later in these reasons for decision.

[16] Finally, I refer to the power of delegation that is given to a Division Head and which is contained within s 4F. That section is in the following terms: 4F Delegation by Division Head

(1) The Division Head of a Division may delegate to any member of staff of that or any other Division of the Government Service: (a) any of the Division Head's functions under this Act (other than this power of delegation), and

(b) any employment-related functions under any other Act that the Division Head exercises on behalf of the Government of New South Wales in relation to the staff in that Division.

(2) If: (a) a function of a Division Head is delegated to a member of staff in accordance with subsection (1), and

(b) the instrument of delegation authorises the sub-delegation of the function,

then, subject to any conditions to which the delegation is subject, the person may sub-delegate the function to another member of staff of that or any other Division of the Government Service.

(3) In this section: (a) a reference to the functions of a Division Head includes a reference to any functions delegated to the Division Head under this Act, and

(b) a reference to a member of staff of a Division includes a reference to a person holding an appointment to or in a body or organisation in respect of which a Division of the Government Service is established to enable the body or organisation to exercise its functions. 8 By way of summary, the relevant Department Head, namely Mr Laurie Glanfield, was entitled by s 4F of the Act to delegate to a "member of staff" of the relevant Division or any other Division of the Government Service the function, that is the power to deal with the allegations of misconduct raised against the prison officers under s 46 of the Act. I concluded in the earlier decision that the person to whom the delegation was made must be a member of staff as at the date of delegation and that a later appointment of a person as a member of staff would not remedy any such deficiency as at the date of delegation. The respondent did not submit that I was in error in so concluding. Accordingly, the question for determination is whether or not Mr Evans was a member of staff for the purpose of s 4F(1) of the Act as at the date of delegation, namely 25 May 2010. 9 The evidence given in the proceedings is that Mr Evans was offered employment under s 38 of the Act by letter dated 4 May 2010, which he duly accepted on 7 May. The letter of offer said, in part:

Your employment will be on a casual basis (days and hours of duty may vary) to carry out work on a short-term basis for the Department. You are to be employed from the date you acknowledge acceptance of this offer and the relevant remuneration conditions are as follows …. 10 There then follows four numbered paragraphs dealing with the payment of an hourly rate which was said to include the appropriate loading in lieu of leave entitlements, "You will be employed on a casual part-time basis" and reference to the ability to work from home or within premises provided by the respondent as well as the provision of a "car spot". 11 Mr Evans' attention was drawn in the letter of offer to s 39 of the Act and was told that that section "provides that your services may be dispensed with at any time." 12 He was asked to sign the bottom of the letter and return it to a named person "if you accept this offer of casual employment on the terms set out above … ." There is additional material contained in the letter of offer to which it is not necessary that I refer. 13 Evidence in the nature of time and wage records indicate that Mr Evans worked for four hours on 21 May 2010 but then performed no work until 27, 28 and 31 May and 1 June. He then worked on 3 and 4 June. 14 Put shortly, the PSA submitted that Mr Evans was appointed as a casual employee and was, accordingly, only a member of staff on those days and during those hours when he performed work. He did not perform any work on 25 May 2010, the date of the purported delegation and was accordingly not a member of staff that day. 15 In addition to the statutory material that I have earlier extracted, it is also necessary to refer to the provisions of s 38 of the Act, which are in the following terms:

(1) The appropriate Department Head may, in accordance with such guidelines as are issued from time to time by the Director of Public Employment, employ persons to carry out work in the Department on a casual basis.

(2) Persons employed under this Part are casual employees .

(3) A person may be employed as a casual employee: (a) to carry out work that is irregular or intermittent, or

(b) to carry out work, on a short-term basis, in an area of the Department with a flexible workload, or

(c) to carry out the work of a position for a short period pending the completion of the selection process for the position, or

(d) to carry out urgent work or to deal with an emergency.

(4) The employment of persons under this Part is subject to: (a) section 7 (3), and

(b) any other provisions of this Act or the regulations concerning the employment of casual employees. 16 It will be noted that the employment of persons to perform work on a casual basis as referred to in s 38(1) is to be subject to guidelines issued from time to time by the Director of Public Employment. 17 A copy of those guidelines dated February 2009 were made available to the Commission for the purpose of the hearing. Included within the guidelines, at [5.1] of Appendix 1-2 is the requirement that:

Casual employees under s38 may only be employed in accordance with the relevant conditions of employment in the Crown Employees (Public Sector Conditions of Employment) Reviewed Award 2006. 18 There then follows a general discussion about the conditions of work that would normally attach to the employment of a casual under s 38, including the following:

In most instances any employment for a single period of less than 2 weeks would be as a casual employee under s38. There may be circumstances where, upon review the employment is not irregular or intermittent over a long period of time, even though each period of employment is for a short period of less than 2 weeks. No single period of employment for a casual employee under s38 shall exceed 3 months .

Employment for fixed and regular hours, for a single period in excess of 4 weeks would in most instances be as a Departmental temporary employee under s27.

Where a person works irregular and intermittent hours each week or roster period, irrespective of the time period the employment is over (may be years), employment would in most instances be as a casual employee under s38. 19 It will be observed that, firstly, employment is to be in accordance with the conditions of employment contained within the named industrial instrument and, secondly, that the guidelines contemplate that a person who works irregular and intermittent hours each week or roster period, irrespective of the duration of that employment, would "in most cases be as a casual employee under s38." 20 The Crown Employees (Public Service Conditions of Employment) Award 2009 contains, within clause 12, a reference to casual employment. It provides that a casual employee "is engaged and paid on an hourly basis" (clause 12.2.1) and contains a number of provisions ordinarily found in industrial instruments dealing with casual employment. 21 The PSA submitted that Mr Evans was only a member of staff on those days that he worked. The respondent's submission was that he was employed pursuant to a contract of employment made on 7 May 2010 and that he was thereby constituted a member of staff throughout all of the period during which he continued to perform work, whether or not actually at work on any particular day. 22 The controversy between the parties necessitates some consideration of the nature and characteristics of casual employment. It should be observed at the outset that there are many arrangements in industry to which the label "casual" is appended but they are not all consistent in the way in which they operate. Some of these changes are reflective of a move away from regular full-time employment that historically was a feature of the workforce in New South Wales. These changes were referred to by a Full Bench of this Commission in the Secure Employment Test Case [2006] NSWIRComm 38; (2006) 150 IR 1. At [227] to [232] the Full Bench said:

[227] As earlier stated, the evidence presented in this matter demonstrates that casual employment in New South Wales has experienced significant change in recent years, both in terms of the nature and incidence of casual engagements. It is those changes, and the consequent implications for casual employees, which are at the heart of our decision to grant Unions NSW's application with respect to casual conversion. Our reasons are threefold.

[228] Firstly, whilst there are some employees who fit the traditional definition of casual employment, the changing nature of casual employment has resulted in an increasing number of casual employees working regular hours in long term positions. Many of those employees experience significant adverse consequences as a result of having been shifted out of permanent employment.

[229] Secondly, the fact that employers are increasingly engaging casual employees to perform work which was previously performed by permanent employees detracts from and undermines the efficacy of the system of industrial awards which regulates a large percentage of permanent and casual employment in New South Wales.

[230] Thirdly, whilst employers have benefited in varying degrees from the increases in, and changes to, casual employment, the evidence is ambiguous as to whether the same flexibilities could not be achieved by other forms of engagement. More significantly, evidence called by Employers First as to the perceived difficulties associated with the claimed casual conversion clause did not sustain testing under cross-examination. When the true effect of the clause was understood, most genuinely held objections dissolved. It is important to emphasise that the claim is not directed at true casuals: it only operates where an employee elects to transit to permanent employment.

[231] The concept of a "casual" which has emerged through historical employment practice and industrial jurisprudence and which has now long been defined and regulated in awards in this State is essentially one in which: the employee has a short term engagement; shifts are irregular and unpredictable; the employee is not obliged to accept an offer to work a particular shift; the employee's employment technically commences at the beginning of a particular shift and ceases at the end of that shift; the employee is paid a loading as compensation for, amongst other things, annual leave and other benefits "accrued" during each shift worked; and the employee has no expectation of being rostered for another shift.

[232] Awards recognise a distinction between casual work and full-time or part-time work, and prescribe levels of remuneration and conditions accordingly. The awards of this State have created and maintained a dichotomy between permanent and non-permanent employment. What the evidence in this matter has revealed is a significant shift towards engaging employees as "casuals" (merely by the label being affixed to the position or by the characterisation of the employment by contract or otherwise) in circumstances where those employees do not, on any reasonable basis, fit the conceptual and legal model so described. This change has occurred without a review by the Commission as to whether the changes are consistent with the existing award model or are appropriate when judged against the requirements of s 10 of the Act and other relevant statutory provisions. The application by Unions NSW represents the first modern opportunity to review the new arrangement. This is significant as it is clear from the evidence that the changed employment patterns which have created something akin to a "permanent casual" (in contrast to the "true casual") significantly altered the work arrangements (often adversely) of a large number of employees. 23 The nature of casual employment was considered by Moore J in the Industrial Relations Court of Australia in Reed v Blue Line Cruises Limited (1996) 73 IR 420. His Honour's consideration was undertaken in the context of certain provisions of the Industrial Relations Regulations (Cth), which in turn incorporated provisions of an International Convention. His Honour considered that characteristics of a casual employment involved "a notion of informality or flexibility in the employment … ." His Honour said:

A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual. (At p 425). 24 The concept of casual employment was also considered in some detail by a Full Bench of this Commission in Ryde-Eastwood Leagues Club v Taylor (1994) 56 IR 385. Indeed, it was the decision of the Commission in that case upon which the respondent seized in support of its submission. The proceedings concerned an application for reinstatement brought by a person who had been a casual employee of a Club, claiming that he had been unfairly dismissed. The employee had last worked on 22 August 1993. He had habitually been regularly rostered for work. On 30 August 1993, he was advised that the Club was no longer prepared to re-engage him. The Club argued that as the person concerned was a casual employee and had last worked on 22 August 1993, he was not an employee on 30 August 1993 when the Club indicated that it was no longer prepared to re-engage him. Accordingly, the claimant was not an employee the subject of a dismissal or threatened dismissal and therefore s 89 of the Industrial Relations Act could not apply to his circumstances. 25 In rejecting the Club's submissions, the Full Bench first considered the meaning of the word "dismissal" and held that in the context of casual employment the meaning of that word extended to and accommodated circumstances where a person had a reasonable expectation of continuing work. "Dismissal" would therefore extend to circumstances where there was a refusal by an employer to continue to offer work to such a person. 26 The Full Bench expressed its opinion in this way:

The conclusions so reached accord with our opinion of the relevant law on the authorities. During the course of argument, Mr. Neil asserted that the contract of employment between the appellant and respondent, being casual in nature, could not found a claim for breach of contract; there was simply no relevant contractual relationship between the parties which was enforceable. We disagree. In principle, and using the technical terminology of contract, an enforceable contract may readily be drawn, namely - in consideration of a payment by X to Y, in accordance with the relevant award or enterprise agreement for work actually performed, X agrees to employ Y as a casual employee on work as mutually agreed as and when it arises from time-to-time pursuant to a weekly roster published by X at least seven days in advance of such work and Y agrees to make himself available to perform such work subject to the release of Y allowed by X for illness, holidays and other reasonable cause. Such a contract, in our opinion, would represent an appropriate common law contract of employment to give effect to an on-going or continuing enforceable contract of casual employment. It would not conflict with nor be contrary to the Award here. We think that if the employer to such contract, X, declined during the course of its operation to offer further work to the employee, Y, then there would be a dismissal from employment of Y in a relevant sense within the meaning of Pt.8 of Ch.3 of the Act. The Commission's jurisdiction would therefore be attracted and, if the dismissal were found to be harsh, unreasonable or unjust, the remedies of reinstatement, re-employment or compensation would be available. The only remaining question then is whether the facts of this case enable the conclusion that such a contract existed between the appellant and the respondent. (At p 399). 27 Having then discussed the factual circumstances which pertained to the particular employee in those proceedings, the Full Bench then said, under the heading "Conclusion":

It is apparent that two classes of employee colloquially described as "casual" can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an on-going or continuing contract of employment; it is this second class of contract which, for the reasons set out earlier by us, is of such a nature as to attract the Commission's jurisdiction under Pt.8 of Ch.3 of the Act. Whilst the cross-over point between the above described classes may be difficult to ascertain, it being a matter of fact in each case, we are confidently of the view that the relationship particular to this case fell clearly within the class of an on-going contractual relationship so as to be within the Commission's remedial powers under the Act. (At p 401-402) 28 It may be seen, accordingly, that the basis upon which the Full Bench concluded that there was jurisdiction and power to order reinstatement was that, firstly, there was an ongoing contract of employment and, secondly, that a failure to offer work constituted a dismissal for the purpose of the unfair termination provisions of the Industrial Relations Act. 29 The respondent seized upon this conclusion by submitting that, as a matter of logic, the claimant in those proceeding had to be an employee at law at the time that the club informed him that he would not be re-engaged, even though he was not rostered to work and did not perform work on that particular day. 30 Such a submission ignores, however, the nature of the contract of employment found by the Full Bench to exist. The contract was described in the extract from the decision at p 399, which I have previously set out. The contract is described as "on-going or continuing". Pursuant to it, the employee would be available to perform work on such occasions as the employer notified pursuant to a weekly roster, with certain limited exceptions. On this basis, there was said to be a continuing contract pursuant to which work was performed. However, the existence of such a contract says nothing about the status of the person performing the work. It certainly does not characterise the person who is to perform the work as an employee on any day upon which he or she does not actually work. It is a fundamental concept of employment that a person is bound to work or make himself or herself available for work at designated times. If there is an ongoing contract of employment then, as with the case of all persons who are engaged to perform work under an ongoing contract, such a person may be described to be an employee. 31 But this cannot be the case where work is performed on an irregular or intermittent basis. The Full Bench in Ryde-Eastwood Leagues Club was at pains to describe an ongoing enforceable contract of employment. But this is not necessarily indicative of all forms of casual employment. So much was recognised by the Full Bench in the Secure Employment Test Case. At [233], the Full Bench said:

[233] We do not consider that Ryde Eastwood Leagues Club v Taylor represents an acceptance (as opposed to a recognition) by the Commission of the notion of the "permanent casual" as a form of employment. The question whether an employee is engaged on a casual basis for the purpose of determining jurisdiction (such as in an unfair dismissal matter) does not disturb the well established jurisprudence surrounding the true nature of casual employment, nor does it represent a review by the Commission of the casual employment model against statutory standards of fairness or reasonableness. Indeed, decisions such as Ryde Eastwood Leagues Club v Taylor highlight further the changes we have described in the management of casual employment vis a vis permanent employment. 32 This leads to a consideration of the evidence in these proceedings about the terms and conditions of the employment of Mr Evans. It consists only of the letter of offer of employment and the letter of acceptance. The respondent did not adduce any evidence about the terms and conditions of employment. 33 These are interlocutory proceedings in which the applicant seeks an order in the nature of an injunction. I indicated to the parties during the course of the hearing that I was concerned that there be established a proper factual basis upon which I could make a determination. I proposed to the parties that I took the evidence and made appropriate assumptions about it at its highest in favour of the respondent. Both parties accepted this position, although for completeness I note that the initial position of the PSA was that if the respondent had wanted to clarify the position it could have adduced evidence about the precise terms and conditions under which Mr Evans was employed. 34 I shall assume for the purpose of these proceedings, although there is no evidence about this, that Mr Evans was specifically employed to replace Mr Moroney and become the decision maker about the allegations of misconduct made against each of the prison officers. I will therefore assume that Mr Evans undertook as part of his contract of employment to perform such work and at such times as would enable him to fulfil this task. I am not prepared to assume, however, that Mr Evans was required to work on any particular day or days or that he was required to work at any particular time. What he was required to do and when he was required to do it would be dictated by the evolutionary process which attended the investigation of the allegations of misconduct, communications to and from the prison officers and others and a consideration of whether and to what extent misconduct had been established. 35 Apart from these factual assumptions, the letter of offer makes it clear that Mr Evans was to be appointed on a casual basis. So much is pellucidly clear because of the reference in the letter to s 38 of the Act, the description of employment "on a casual part-time basis", the indication of payment calculated at an hourly rate and the fact that Mr Evans' services might be dispensed with "at any time". 36 The circumstances which I have described may be contrasted with those considered by the Commission in Ryde-Eastwood Leagues Club v Taylor. In the circumstances of those proceedings, the Commission found that there was an ongoing or continuing contract of employment. It identified an agreement whereby the employer would publish a weekly roster at least seven days in advance of work to be performed and, significantly, an agreement by the employee "to make himself available to perform such work" subject to illness, holidays and other reasonable cause. 37 Whilst in the circumstances of these proceedings it cannot be denied that there is a continuing or ongoing relationship between the parties, it is not of the kind that would be indicative of a continuing contract of employment. Indeed, if I were to characterise the ongoing relationship in terms of a contract, it would be a contract "for" employment but not a contract "of" employment. 38 The underlying features of the work that Mr Evans was to perform were that it was irregular and intermittent. It was clearly the intention of the respondent to employ him on a casual basis. There is an explicit reference to s 38 of the Act which deals solely with casual employees and which states that persons employed to carry out work on a casual basis must be employed in accordance with the guidelines. The guidelines, which I have previously described, state that employment would in most instances be as a casual under s 38 "where a person works irregular and intermittent hours each week or roster period, irrespective of the time period the employment is over … ." 39 Furthermore, casual employment may only be undertaken in accordance with the conditions of the Award, which I have previously described. This requires that a casual employee be engaged and paid on an hourly basis. 40 I observe that the evidence is that Mr Evans was paid on an hourly basis. Whether and to what extent he was engaged on an hourly basis is problematical. Strictly, engagement on an hourly basis would require Mr Evans and the respondent to renegotiate his engagement at the end of each hour because he would be engaged from hour to hour. Whether such a provision represents reality or is a hangover from language used many years ago is unknown. Despite this anomaly, it is clear that employment under s 38 of the Act is intended, as is explicitly stated in s 38(3)(a) to apply to work that is "irregular or intermittent". This is the situation that applied to Mr Evans. In these circumstances, I do not regard Mr Evans as being an employee, or a member of staff, generally as would be the case of a person employed under a contract of indefinite duration or for a specified period. A prison officer employed under a contract of indefinite duration is entitled to say that he or she is a prison officer employed by the respondent whether at work or not. Mr Evans, on the other hand, would be entitled to say only that he was engaged casually by the respondent for certain purposes but that he was an employee only on those occasions on which he was performing work. 41 On this basis, Mr Evans was not a member of staff of the respondent on days that he did not work. This included the date of the purported delegation by Mr Glanfield, namely 25 May 2010. 42 For completeness, I refer also to one other aspect of the submissions made by the respondent, based by way of analogy on the decision of the Commission in Ryde-Eastwood Leagues Club v Taylor. Another reason for concluding that the type of contract which the Commission found to exist in the circumstances of those proceedings is not present in these proceedings is a consideration of whether there was an overarching enforceable contract of the same kind that applied to Mr Evans. I have assumed that Mr Evans was under no obligation to perform work on any particular day or at any particular time. Certainly, there is no evidence that would hint at the existence of such a condition. Accordingly, there was a degree of discretion on the part of Mr Evans as to the days upon which and the times during which he performed his work. This would lead to a conclusion that there was no overarching enforceable contract of employment at law, covering the period during which Mr Evans did not perform work, which would enable him to be characterised as an employee or a member of staff on those days. In Placer Development Ltd v Commonwealth [1969] HCA 29; (1969) 121 CLR 353, the High Court considered a contract containing a provision for payment of a subsidy of an amount or at a rate determined by the promisor from time to time. The High Court held by majority that this provision was unenforceable. In their joint judgment, Taylor and Owen JJ said:

But a promise to pay an unspecified amount of money is not enforceable where it expressly appears that the amount to be paid is to rest in the discretion of the promisor and the deficiency is not remedied by a subsequent provision that the promisor will, in his discretion, fix the amount of the payment. Promises of this character are treated by Pollock ( Principles of Contract , 12th ed. (1946), pp. 38, 39) not as vague and uncertain promises - for their meaning is only too clear - but as illusory promises and he gives as illustrations Taylor v. Brewer [1813] EngR 265; (1813) 1 M & S 290 (105 ER 108) and Roberts v. Smith [1859] EngR 317; (1859) 4 H & N 315 (157 ER 861). In the first of these cases the plaintiffs failed in their claim for remuneration for their assignor's services where he had performed work upon the basis [1813] EngR 265; (1813) 1 M & S 290 (105 ER 108): ". . . that any service to be rendered by him should be taken into consideration, and such remuneration be made as should be deemed right." (At pp 359-360). 43 The circumstances referred to in the joint judgment may be applied by analogy to the circumstances of these proceedings. There was, as I have found, no obligation on the part of Mr Evans and no promise by him to work on any specified or particular day. He was to work on such days as he in his discretion considered necessary or appropriate. This promise and the consideration therefor are therefore illusory in the sense referred to by the High Court of Australia. Accordingly, it cannot found the basis of any enforceable contract. It follows that there was only ever in existence a contract of employment on each day that Mr Evans worked. Therefore, he was not an employee and a member of staff on the days that he did not perform work.

Did the delegation extend to alterations in and new allegations of misconduct?

44 Strictly it is not necessary that I deal with this issue. However, in deference to the arguments raised by the parties, I shall make some brief observations about the submissions made by the PSA. 45 The document "instrument of delegation" purported to delegate to Mr Evans the functions of Mr Glanfield under Part 2.7 of the Act

in relation to the allegations of misconduct against the following officers, relating to their entries on the "Facebook" internet site contained in the letter of Mr Schipp dated 25 February 2009 … . There then followed a reference to five named officers. 46 In order to deal with this submission, I need to consider the allegations of misconduct that are referred to in the instrument of delegation. I shall take by way of example the allegations made against Mr Matthew Moore in Mr Schipp's letter of 25 February 2009. The letter states that:

The details of the alleged misconduct as known to me at the time the allegations were made are as follows: · You have posted comments and/or images on the Internet site "Facebook" which are in contravention of Commissioner's Instruction (09/2002) "Public Comment on the Work of the Department". · You have posted comments and/or images on the Internet site "Facebook" which are in contravention of the Department's media Policy, in particular section 20.1. · You have posted comments and/or images on the Internet site "Facebook" which constitute bullying and/or harassment of employees of the Department. · You have posted comments and/or images on the Internet site "Facebook" which breach clause 258(2) of the Crimes (Administration of Sentences) Regulation 2008. · You have posted comments and/or images on the Internet site "Facebook" about the Commissioner, other employees of the Department, and/or the Department which are offensive and/or disparaging in nature. 47 These are the allegations of misconduct with respect to which the delegation was purported to be made to Mr Evans. 48 Following the carrying out of certain investigations, Mr Berry, the investigator, wrote to Mr Moore by letter dated 29 April 2009 which specified in much greater detail the allegations of misconduct. For example, there are allegations concerning about 30 separate postings of comments within the internet site Facebook which variously were said to contravene a Commissioner's instruction and media policy, which constituted bullying and harassment of employees of the Department and which breached s 258(2) of the Crimes (Administration of Sentences) Regulation 2008. The postings are referred to by date and time. The earliest appears to be 8 November 2008 at 1.39pm and the latest on 5 February 2009 at 7.16am. 49 By letter dated 16 June 2010, Mr Berry again wrote to Mr Moore. He advised Mr Moore that Mr Chris Evans had now been appointed as a decision maker. He referred to a number of typographical errors. In the case of two postings, namely 3 January 2009 at 3.47am and 26 November 2008 at 9.10am, Mr Berry indicated in the letter that the allegations were to be amended so as to correct typographical errors concerning time. The relevant occasions were then said to be 3 January 2009 at 3.47pm and 26 November 2008 at 9.10pm. 50 In addition, the letter contained a further allegation that on 26 November 2008 at 9.05pm Mr Moore posted a comment in contravention of s 258(2) of the Crimes (Administration of Sentences) Regulation 2008. This was a new allegation. 51 Mr Moore was given an opportunity of responding to the new allegation, details of which, being the web extract, were provided in Mr Berry's letter. 52 In my opinion, the amendments to correct typographical errors and the new allegation are all matters that were comprehended within the allegations of misconduct which were made by Mr Schipp in his letter of 25 February 2009. They are all matters of detail. I am of the opinion that Mr Glanfield was entitled to delegate the decision making process to a member of staff that included the specification of the misconduct and variations and additions to it, provided that the misconduct was comprehended within the original allegations contained within Mr Schipp's letter, as I have found. 53 Accordingly, I reject the PSA submission concerning this aspect of the matter. The relief to be granted

54 The PSA sought orders directed to any determination, decision, finding or act of Mr Chris Evans made or carried out pursuant to the purported delegation made to him by Mr Glanfield on 25 May 2010, and an alternative order confined to whether the delegation extended to the altered and new allegations of misconduct. In view of the conclusion which I have reached, it is not necessary that I deal with the alternative order sought by the PSA. 55 The making of any such order is discretionary and the Commission needs to be empowered to make orders of that kind. I referred in my earlier decision to the statutory basis upon which such orders might be made and the basis upon which the discretion to make such orders should be exercised. The discussion commences at [65] of my earlier decision. I will not repeat it, but will rely upon what is therein contained as setting out the approach that I adopt for the purpose of these proceedings. 56 I am satisfied that there is a prima facie case to sustain the position of the PSA that the delegation was invalid, a probability that, if the matter were to be fully litigated, the PSA would be entitled to relief and that furthermore the balance of convenience favours the granting of an order of the kind sought. 57 In my earlier decision, I expressed some concern about the state of these proceedings and I repeat what I set out at [75] thereof. In doing so I observe that it would have been a simple matter either for Mr Glanfield himself to have determined what disciplinary action should be taken or alternatively to have engaged Mr Evans as a temporary employee and then arranged for the necessary delegation to have been given to him. Indeed, the evidence in these proceedings was that on 6 August 2010 Mr Glanfield by letter to Mr Evans offered him a period of temporary employment under s 27 of the Act "to continue to carry out the work of the decision maker." Mr Evans accepted that offer on the same day. However, for reasons given in my earlier decision, I do not accept that the appointment of Mr Evans as a temporary employee on 6 August 2010 corrected the invalidity that occurred by way of the purported delegated authority which Mr Glanfield made on 25 May 2010. Orders

The Director of Public Employment and the Department of Justice and Attorney General are restrained from dismissing or taking other disciplinary action against Anita Malesevic, Owen Garing, Matthew Moore and David Walker based on or as a result of any determination, decision, finding or act of Mr Chris Evans made or carried out pursuant to the purported delegation made to him by Mr Laurie Glanfield on 25 May 2010.

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Judgment (82 paragraphs)

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