Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Justice and Attorney General - [2010] NSWIRComm 148 - NSWIRComm 2009 case summary — Zoe

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Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Justice and Attorney General

[2010] NSWIRComm 148

Industrial Relations Commission (NSW)|2009-06-01|Before: Boland J, Ross VP, Duncan DP, Mr J, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

2009-06-01

Before

Boland J, Ross VP, Duncan DP, Mr J, Mr P

Source

Original judgment source is linked above.

Judgment (170 paragraphs)

[1]

CITATION: 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

[2]

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) PARTIES: Department of Justice and Attorney General (Corrective Services NSW) (First respondent) Director of Public Employment (Department of Premier and Cabinet) (Second respondent)

[3]

CATCHWORDS: DECLARATIONS - Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for declaratory relief under section 154 of the Industrial Relations Act 1996 - Relief sought in relation to the employment of casuals at Lithgow Correctional Centre, Long Bay Hospital and Dawn De Loas Correctional Centre in the period 1 June 2009 to 31 December 2009 - Claim that the employment of casuals at those locations to perform the work of long term vacant officer positions was inconsistent with certain provisions of the Public Sector Employment and Management Act 2002 and, accordingly, not permitted by law - Casual employment - Statutory interpretation - Consideration of the statutory requirements regarding employment of casual employees - Rostering of casual employees - Effect of outsourcing on need for casual employees - Whether outsourcing justified use of casuals - Whether casuals were used to fill long term vacant officer positions - Whether casuals were employed in a manner inconsistent with Public Sector Employment and Management Act 2002

[32]

14 The relevant principles of statutory interpretation, as the applicant submitted, were stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382 as follows: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman , "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J). 15 The applicant was also correct in observing that the purpose and policy of the PSEM Act, insofar as casual employment is concerned, may only be properly understood in the context of its history. The predecessor legislation to the PSEM Act, the Public Sector Management Act 1988, did not contain any reference to the employment of casuals. Apart from departmental heads and senior executive officers, it contained only three categories of 'staff', namely officers (Division 4), temporary employees (Division 5) and special temporary employees (Division 5A).

[34]

I reiterate at this point that the Government has made a strong public commitment to preventing the casualisation of employment within the New South Wales public sector, and the bill makes it clear that the usual method for employment in the public service is ongoing, as a permanent officer. 17 Section 7(1)(c) of the PSEM Act refers to casuals as being persons employed on a casual basis. The term 'casual basis' is not defined in the PSEM Act, but it is a reasonable assumption that in adopting the concept of casual employment the legislature had regard to the general employment law. Even there, however, the concept has been regarded as 'ill-defined' (see Doyle v Sydney Steel Company Ltd [1936] HCA 66; (1936) 56 CLR 545 at 555 per Dixon J). Attempting to give a definitive meaning to casual employment is made even more difficult because the concept has been distorted by a wide assortment of definitions of casual employment in awards and enterprise agreements. One sees reference to 'permanent casuals', 'regular casuals' and 'true casuals'. 18 In Doyle, Dixon J suggested that 'it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual'. In Reed v Blue Line Cruisers Ltd (1996) 73 IR 420 at 425 Moore J stated: 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. 19 As the respondent submitted, however, in Reed Moore J was not engaged in a general analysis of the nature of casual employment, but on the specific inquiry as to whether or not the applicant in that case was excluded from the provisions of Div 3 of Pt VIA of the Industrial Relations Act 1988 (Cth) by virtue of reg 30B of the Industrial Relations Regulations (Cth). Regulation 30B excluded from the unfair dismissal provisions of the federal legislation, a 'casual employee engaged for a short period'. The regulation further provided that a casual employee was taken to be engaged for a short period unless '(a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and (b) the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer.'

[35]

20 Moore J described a casual employee for the purposes of reg 30B as: an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered. 21 His Honour also stated: It is important, however, to bear constantly in mind that the regulation is intended to reflect, not entrenched notions of what may be a casual for the purposes of Australian domestic law, but rather what is comprehended by the expression "engaged on a casual basis for those periods" in the Convention. 22 Given that Moore J was concerned with the question of whether a person was a 'casual employee engaged for a short period' under reg 30B of the Industrial Relations Regulations (Cth), his Honour's decision cannot be taken as a definitive statement as to what is a casual employee under Australian domestic law, although his Honour's observations are helpful. 23 In Ross v Court Recording Services (NSW) Pty Ltd (27 August 1999, AIRC, Ross VP, Duncan DP, Larkin C, Print R8524) the Full Bench identified the following indicia of a casual employment relationship: Whether the employment was conditional on availability of work; whether the employee is free to inform the employer that he or she is unavailable; whether the parties characterise the employment as casual; whether the hourly rate of pay is intended to cover leave entitlements; award classification; payment only for hours worked; and working varying hours during the course of employment. 24 The applicant referred to Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589; (2001) 115 FCR 78 at [38] where it was observed that the essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work, but that was not inconsistent with the possibility of the employee's work pattern turning out to be regular and systematic. In Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455 (at [105]). Le Miere J (with whom Steytler P and Pullin J agreed on this point) referred to the test enunciated in Hamzy. His Honour said that there is no one definitive test to distinguish between casual and permanent employees and found that (at [106]): [106] ... The essence of casual employment is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work. It is not a necessary characteristic of casual employment that the employee work under a series of separate and distinct contracts of employment each entered into for a fixed period. (at [106]) 25 In Re Secure Employment Test Case [2006] NSWIRComm 38; (2006) 150 IR 1 at [231] the Full Bench stated: [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. 26 In Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 at 399 the Full Bench of the Industrial Relations Commission of New South Wales, in the context of unfair dismissal proceedings, considered whether there had been a dismissal of the respondent who had been engaged as a casual under the Club Employees (State) Award. The respondent had been employed on a full-time basis. He so worked for the appellant for about three years until 17 June 1993 when he sought to change to that category of employee under the Award described as a 'casual employee'. After discussions with the management, in June 1993 the respondent commenced working as a casual under the Award and continued in that capacity until the appellant on 30 August 1993 declined to 're-engage' him. 27 At 400, the Full Bench described the respondent's pattern of work: The evidence demonstrated that during the period from June 1993 to 30 August 1993 the average number of shifts which the respondent worked in each seven-day shift period from Wednesday to Tuesday was between two and three shifts; the range was from as many as five shifts to as low as one shift per week. The respondent was a versatile employee who was allocated work as a barman, change attendant, poker machine supervisor and other work where management required an appropriately experienced employee. The evidence also suggested there was a wide range of reasons for which the respondent might be and was required to replace another employee on a forward roster such as absences for sick leave, long service leave, annual leave and rostered days off. Management called on casual employees, including the respondent, on a rostered basis to make up the work force as and when required. Unanticipated absences of other employees also led to the respondent and other casuals often being asked to work at short notice although unrostered. Work was shared equitably by the management amongst the casuals and the respondent's continuing expectation was that he would participate in the casual work as it became available according to his turn on the roster and to meet unanticipated absences. 28 At 399 the Full Bench described the nature of the arrangement between the appellant and the respondent and found that it was amenable to the Commission's unfair dismissal jurisdiction: 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 ongoing 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. 29 At 401-402 the Full Bench described two classes of casual employee: 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 ongoing 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. 30 In the Secure Employment Test Case the Full Bench observed in relation to the 'second class' referred to in Ryde-Eastwood: [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. 31 I note that in the Secure Employment Test Case a central concern of the Full Bench was the disturbing trend towards increasing casualisation of the workforce and the manner in which casuals were being used to replace full time employees. In this respect, the Full Bench observed by way of illustration: [234] There was no shortage of evidence in this matter, some of which is extracted earlier, to demonstrate the way in which the features of casual employment have, in many instances, changed from short term and unpredictable to long term and regular. The storeperson engaged by Bonds Industries Pty Limited is a clear illustration: the employee has been engaged for over six years, working a 38 hour week on regular morning shifts, yet was labelled and paid as a casual employee. We do not consider such long term casual engagements to be isolated incidents, but rather reflect the increasing trend. 32 In order to increase the job security of long-term casual employees the Full Bench provided for a 'casual conversion' model clause, which gave a right of election to convert to permanent employment to casual employees who had been engaged by a particular employer on a regular and systematic basis for a sequence of periods of six months. Thus, although it was with obvious disapproval, the Full Bench did recognise there were employees engaged as casuals 'on a regular and systematic basis for a sequence of periods of six months'. 33 In Community & Public Sector Union (CPSU) v State of Victoria [2000] FCA 14; (2000) 95 IR 54 Marshall J considered whether prison officers employed on the gatehouse at Barwon Prison were casual employees. His Honour set out the relevant facts as follows: [4] Mr Paul Delphine is the Director of Prison Services in the Department. The powers of the Secretary of the Department have been delegated to him regarding the employment of staff within CORE. That delegation includes the power for him to form the opinion that staff are required to be employed by the Department and to make appropriate appointments in accordance with the Public Sector Management Act 1992 (Vic) ('the PSM Act'). Mr Delphine decided that the Barwon gatehouse staff would be 'hourly paid casual staff'. He designated, in accordance with his delegated powers, that the staff to be employed at the Barwon gatehouse would be employed pursuant to Div 5A of Part 2 of the PSM Act. That division is headed 'CASUAL EMPLOYEES'. Section 35A(1) of the PSM Act provides that: 'The appropriate Department Head may, if of the opinion that it is necessary to do so, employ persons on an hourly, seasonal or other casual basis to carry out work in the Department.'

[48]

37 The provisions of s 38(3) of the PSEM Act are, in my opinion, quite consistent with the notions of casual employment understood in Australian domestic law. The common law would undoubtedly accept that employment on any of the bases set out in s 38(3) could be regarded as casual employment. The type of employment envisaged by s 38(3) really falls into two main categories: irregular or intermittent and short-term. Urgent work or emergency work will, by its very nature, only be short-term work. 38 I note that the Guidelines referred to in s 38(1) place a limit of three months on any single period a casual may be employed. In effect, therefore, the Guidelines provide a benchmark as to what is a 'short period' or 'short-term' as those terms are used in s 38(3)(b) and (c). That is to say, the longest single period of employment that a casual may be engaged under s 38 is three months. Where the work involves an emergency or is urgent work (s 38(3)(d)), one would have difficulty envisaging the need for a three months' period of employment, but I do not rule it out. 39 The applicant submitted that the requirement in the Guidelines that 'No single period of employment for a casual employee under s 38 shall exceed 3 months' is not to be read as applying, and limited to, some notional fixed term of casual employment: see Notification under section 130 by the Australian, Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch of a dispute with Parramatta Leagues Club Ltd re reduction of hours [2002] NSWIRComm 208 at [100]. It was further submitted that an engagement of that nature would constitute temporary employment under s 27 of the PSEM Act and this would exclude it from being categorised as casual employment. The applicant submitted that the context in which the three months' requirement appeared in the Guidelines suggested that the requirement was intended to have a different meaning. It was noted that the preceding sentence in the Guidelines states: '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' (applicant's emphasis). This provision, it was submitted, made it clear that the three months' requirement applied to such a situation - that is, where there is a series of engagements, each of which is 'for a short period', but which on review extends over a longer period in a manner that is not irregular or intermittent. The three months' requirement prevented the indefinite continuation of that situation by the imposition of a temporal cap. 40 The object of this submission was the respondent's practice that casual correctional officers ('CCOs') are made separate offers for each shift, which they are at liberty to either accept or reject. Each such offer and acceptance constitutes a separate contract of employment. The respondent submitted there was no ongoing contract of employment and, therefore, the restriction in the Guidelines of a maximum single period of employment of three months did not apply.

[51]

45 In relation to urgent work, the respondent contended all of its work was urgent and, therefore, apparently, the use of casuals had no limitation except that provided by s 7(3). I accept that the work of correctional officers is very important, but one would not, in ordinary parlance, describe it as 'urgent'. If I were to accept that all of the work of correctional officers was urgent then s 38(3)(a) to (c) would be otiose. I do not accept that the respondent, in the normal course, is able to rely on s 38(3)(d) to justify using casuals to fill long-term vacant officer positions. That is not urgent work. 46 On the question of 'work', the applicant submitted a casual may not be employed, even on an irregular or intermittent basis, to perform work that is not itself of an irregular or intermittent in nature (unless the work otherwise falls within paragraphs (b) to (d) of s 38(3)). Thus, it was submitted, whether s 38(3)(a) is applicable in any given situation requires an analysis of the nature of the work undertaken or to be undertaken by the casual. The same was said to apply to s 38(3)(d): the work itself to be performed by the casual must be of an urgent or emergency nature. 47 I do not accept the proposition that the work itself must be of an irregular or intermittent nature in order for it to be work a casual employee may do. There is no basis upon which to take such a restricted view of s 38. If one were to do so it would mean that a casual employee could not perform the work of an officer in a Department on those occasions the officer was unexpectedly absent on a day or shift because the normal 'work' of that officer would be regular or continuous and not irregular or intermittent. In such circumstances reliance could not be placed on s 38(3)(b) or (c), nor in most cases in the public sector on s 38(3)(d). In my opinion, 'work' as it is used in s 38(3) does not refer to the nature of the work, but rather the availability of the work to be carried out. If the work is only available on an irregular or intermittent basis, as opposed to regular or continuous work, for example, it will be work a casual employee may perform; it will be work available to be carried out on a casual basis. 48 The Guidelines provide: 'A person may be engaged as a casual employee on a genuinely irregular and [sic -or] intermittent basis over a long period of time to meet "needs, relief or demands requirements".' This suggests that it is the availability of the work that is irregular or intermittent, not the tasks or duties performed by the casual employee. 49 As I earlier noted, the Guidelines further state: 'Where a person works irregular and [sic - or] 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 s 38.' This also suggests that a casual employee may be engaged pursuant to subsection 38(3)(a) of the PSEM Act to carry out work that is irregular or intermittent and, in doing so, perform work each week or roster period for a period that may extend over years. 50 It is apparent from what the Minister said in his second reading speech introducing the Public Sector Employment and Management Bill in 2002 that the Government was seeking to modernise the public sector's employment practices to provide for greater flexibility without compromising the usual method for employment in the public service, that being appointment as an officer. On casual employment, the Minister stated: Casual work is justified in certain circumstances - for instance, when there are unplanned absences in critical front-line positions. It is defined as employment for work that is irregular or intermittent. Casual employment is to be used only when a department's workload needs to be addressed in the short term or in an urgent or emergency situation. 51 In my opinion, work will be irregular or intermittent in circumstances where planned or unplanned absences create occasional gaps in the regular or continuous work performed by permanent officers (or temporary employees) that need to be filled. The requirement to utilise casual labour to perform irregular or intermittent work may include the need to cover short-term unplanned absences caused, for example, by illness, filling the demand for additional labour caused by spikes in the normal workload, filling planned absences for short periods, and other work exigencies that may arise from time to time - irregularly or intermittently - that cannot be met by the permanent workforce. 52 What casuals may not be used for is a long-term substitute for employing officers either on a full-time or part-time basis or to avoid or deliberately and unjustifiably delay filling long-term vacant officer positions, other than in the circumstances allowed by s 38(3)(c). To do so would be inconsistent with s 7(3) of the PSEM Act. I agree with the applicant's submission that s 7(3) is to be interpreted as constituting a positive obligation upon public service departments to ensure that in all circumstances, the employment of officers is to be the usual mode of employment. 53 In summary, therefore, in answer to the construction issues contested in these proceedings: (a) A person may be employed as a casual employee under s 38(3)(a) to carry out work that is irregular or intermittent. It is the requirement to perform work on an irregular or intermittent basis, not the nature of the work to be performed by the casual employee, which is determinative. There is no prohibition in the PSEM Act or the Guidelines against the engagement of casual employees to undertake the work of an officer, even if the position is vacant, except that casuals may not be used as a long-term substitute for employing officers or to avoid or deliberately and unjustifiably delay filling long-term vacant officer positions, other than in the circumstances allowed by s 38(3)(c). (b) Where a person works irregular or 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 s 38. A person may be engaged over a long period of time as a casual employee on an irregular or intermittent basis to meet needs, relief or demands requirements. The employment will usually be by the day or shift, but not necessarily so. An essential feature of this type of employment is that there will be no firm advance commitment as to the shifts the employee will work during the period of engagement. This will be evident from the terms of engagement, either expressed or implied, or by the employee not being obliged to accept an offer to work on a particular day or shift, or both. (c) It was stated in Hamzy that the essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work, but that is not inconsistent with the possibility of the employee's work pattern turning out to be regular and systematic. However, the Guidelines provide that: 'Casual employment should only be used in limited circumstances', the PSEM Act provides for temporary employees and the PSEM Act provides the usual basis of employment is that of officer. It would be inconsistent with s 7(3) of the PSEM Act and the Guidelines to allow a situation to develop whereby employees engaged as casuals on the basis of a contract of employment the duration of which was a shift, continued working over the long-term such that the work became regular or systematic or continuous (notwithstanding that the terms of the engagement provided the employee was not obliged to accept an offer to work on a particular shift) and this had the effect of being a substitute for appointing an officer. It would be a sham to regard this as casual employment under s 38(3)(a) of the PSEM Act because it would not be characterised by irregularity or intermittency. Simply because the contract of employment was on a daily or shift basis, does not give it the character of intermittency contemplated by s 38(3)(a) if what has evolved is a regular or systematic pattern of work whereby there is a tacit expectation of ongoing work being offered and accepted. Moreover, because a casual employee might fill a different post each shift worked or work at a different correctional centre in the same district, does not give the employment the character of irregularity or intermittency. The employee would still be a correctional officer working a regular or systematic pattern of shifts. (d) The Guidelines provide that '[n]o single period of employment for a casual employee under s 38 shall exceed 3 months.' This necessarily implies, in the context of the Guidelines, that a short period or 'short-term' is three months or less. A long period of time for the purpose of (b) above may be, as the Guidelines indicate, years. (e) If a person is employed for a single period not exceeding three months under s 38(3)(a), the work to be carried out in that period must be irregular or intermittent: see, for example, the respondent's pattern of employment in Ryde-Eastwood . (f) A person may be employed under s 38(3)(b) as a casual employee to carry out work, on a short-term basis, in an area of CSNSW with a flexible workload. In view of the limit in the Guidelines of three months in respect of a single period of employment, 'short-term' may be regarded as a period of three months or less. A flexible workload would not extend to fluctuations in attendance at work by officers but relates only to fluctuations in workload that cannot be met be permanent staff. (g) A person may be employed under s 38(3)(c) as a casual employee to carry out the work of a position for a short period pending the completion of the selection process for the position. The reference to 'selection process' is to the selection process prescribed by the PSEM Act in Pt 2.3. Section 38(3)(c) refers to 'the' selection process. The only selection process provided by the Act is a merit selection process. In view of the limit in the Guidelines of three months in respect of a single period of employment, 'short period' may be regarded as a period of less than three months. (h) A person may be employed under s 38(3)(d) as a casual employee to carry out urgent work or to deal with an emergency. The normal work of a Corrections Officer cannot be regarded as 'urgent work' such that s 38(3)(d) may be used to justify the engagement of a casual employee under any or all circumstances. (i) Section 7(3) of the PSEM Act is to be interpreted as constituting a positive obligation upon public service departments to ensure that in all circumstances, the employment of officers is to be the usual mode of employment. That is to say, before making any decision to engage a casual employee the department must give active consideration to whether an officer should be employed. In the alternative, the Guidelines provide for a single period in excess of four weeks involving fixed or regular hours, employment would, in most instances, be as a Departmental temporary employee. THE EVIDENCE

[71]

· hospital escorts and hospital guard duty, where the inmate's condition and medical assessment determine the frequency and duration that custodial officers are required. This can be a short hospital emergency department treatment or a lengthy inpatient admission. It is not possible to predict in advance either escort or guard duty work; · the presentation of the inmate at the time of needing medical attention and the inmate classification adds to the variability in the number of correctional officers required to perform the escort - from a passive inmate needing one escorting officer to a non-passive inmate needing additional escorting officers; · the number of people being held at courts can vary, and as inmate numbers increase, custodial staffing levels also increase; · an inmate's assessed risk of harm to themselves will determine whether additional correctional officers are required to closely monitor the inmate. A risk intervention team determines the ongoing need for monitoring of inmates; · the number of inmates in courts and held on remand varies. Police operations can create a temporary peak in charges and this, in turn, may vary the number of custodial officers needed to cater for increased inmate numbers; · any significant change to inmate numbers will vary the number of custodial officers needed; · construction work within a correctional facility or the malfunction and/or repair of equipment may require additional custodial officers for the duration of the contractor escort work or repair work; · unplanned absence advice by permanent custodial officers (in excess of that estimated in the 209 formula) may generate a temporary need for replacement custodial officers. Short term vacancies include, but are not limited to recreation leave, sick leave, family and community services leave, detached duty and leave without pay. In addition, if sickness occurs as a 'spike' because of winter viruses or infection, replacement correctional officers will be needed in greater numbers at the time of the spike; · unplanned absences occur on each of the shifts that permanent officers have been rostered to work (day, afternoon and night) and also at the various starting times (within a shift) that the officer that has advised of the absence has been rostered to work; · mid to long term absences (such as temporary appointments, secondments, study leave, maternity leave, military leave, parental leave, extended leave, suspension from duty, leave without pay, purchased leave, rehabilitation and workers' compensation) may create a need for replacement correctional officers for the duration of the absence; · operational emergencies will, from time to time, create an additional temporary need for replacement correctional officers; · a breach of security or death in custody can mean that additional custodial officers are needed. These will be needed urgently, in sufficient numbers, and at a [sic] the specified location and time, to safely manage the emergency situation; · the resignation of custodial staff presents as a short-term replacement need because the mandatory notice period is only two weeks; and · essential overseer posts (such as food services and supervision of inmates providing goods or services to contracted suppliers) which are the subject of an unplanned vacancy are sometimes backfilled via redeployment of permanent correctional officers. Backfilling of the permanent correctional officer vacancy will then often be necessary for operational continuity. 63 The respondent submitted in relation to the '209 formula': The 209 formula does not take into account a variety of planned and unplanned absences of varying durations which occur in correctional centres. The following absences cannot always be covered under the generic 209 staffing formula:

[79]

66 In relation to the rostering process, first the 28-day spreadsheet or otherwise called the 'pencil roster' is compiled. That is a draft, allocating named staff to particular shifts on particular days. The roster relates to a three shift system, A, B and C shift covering 24 hours, seven days per week, 365 days per year. The 28-day spreadsheet reveals those days where there are not sufficient persons to cover all of the posts that are to be covered on a particular shift. The spreadsheet is then formalised into what is called the 28-day roster. That roster informs each staff member for the upcoming four-week period which days they are rostered to work and what shift they are required to work on a given day. When vacancies appear in a pencil roster it is because it is known well in advance that there are absences in the permanent staff establishment that have led to posts being unable to be covered. 67 Secondly, there are the daily rosters and that also involves two steps. First, there is what is known as the 'draft daily roster' and that is a roster for a given day, usually promulgated three or four days in advance of the particular days to be worked. That roster identifies each employee rostered to work on a given day in the 28-day roster and the particular post that they are to fill. Absences that did not appear in the 28-day pencil roster will start appearing on the draft daily roster. Next, the final daily roster is promulgated on the day of work and that roster will show those vacancies caused by late notification of absences. 68 Thus, taking 30 July 2009 at Long Bay Hospital as an example, based on the '209 formula' there was an establishment figure of 167 permanent custodial officers, but because of vacancies, there were only 110 officers available to fill the 28-day pencil roster. The number of available officers was reduced further because of absences on leave or days off, leaving insufficient officers to fill the 28-day roster (final 28-day roster showed 86 required but only 70 available). The daily roster showed the movement of officers to fill posts, officers being required to work overtime and the engagement of CCOs in order to achieve the required number for that day. On 30 July 2009, it was necessary to engage 10 casuals. 69 The respondent submitted that the 209 formula was not holy writ and I took its submission to mean that one could not simply take the staff establishment figure determined in accordance with the 209 formula, subtract the number of officers available to fill the 28-day roster to determine the number of vacant positions and then determine that if casuals were employed, they were used to fill long-term vacant positions. This was because even though there might be a full complement of staff and no vacant positions, casuals were still required to fill a variety of planned and unplanned absences of varying durations which occur in correctional centres. 70 The applicant's allegation, based on its evidentiary case, was at the three correctional centres in question during the Period, casuals had been engaged to perform the regular and ongoing work of the centres as a result of significant numbers of permanent positions being left vacant or subject to long term absences. The evidence, it was submitted, permitted that proposition to be proven in three ways: (a) The sheer number of positions left vacant or subject to long term absences meant that there was a significant amount of work required to be done by somebody. The extensive use of casuals at the three correctional centres during the Period correlates with this simple fact, and cannot otherwise be explained by the respondents.

[89]

73 Evidence was given by Mr Rodgers regarding CSNSW's 'Way Forward' workplace reforms. Mr Rodgers indicated that CSNSW initiated the Way Forward reform process in May 2003. The reform strategies were designed to allow CSNSW to introduce contemporary correctional centre management routines, to introduce flexibility in the management of inmates and to reduce its operational costs. 74 In 2008 strategies regarding the Way Forward reforms were approved by the Cabinet Budget Committee and included: · establishment of a structured day routine in all correctional centres with controlled let-go and lock-in of inmates with the maximum number of correctional officers present, and with greater access to programs and services by inmates; · centralisation of rosters in all correctional centres under the control of the Operations Scheduling Unit and the replacement of roster clerks (correctional officers) with scheduling clerks in correctional centres; · new correctional centre Management Plans to replace Operational Agreements. The Management Plans to include a structured day template to operate within the correctional centre and a variable operational routine to manage the centre when the centre needs to adjust staffing levels to reflect changes in inmate numbers or other exigencies; · closing of a number of correctional centres for refurbishment or other operational reasons to be reopened with new staffing levels and associated Management Plans; · employment of approximately 300 casual correctional officers in the metropolitan area to fill short term vacancies and to be used as the first port of call to fill vacancies caused by unscheduled absences by correctional officers which previously were filled by way of overtime; and · implementing a new Managing Sick Leave and Other Unplanned Absences Policy to better manage unscheduled sick leave and other unplanned leave. 75 In addition, Mr Rodgers advised that the Way Forward workplace reform strategies included that NSW Treasury would market test the management and operation of Parklea and Cessnock Correctional Centres, as well as certain functions in court escort and security to see whether it was more efficient for the operation of these areas to be managed by CSNSW or contracted out. Opening and closing of correctional centres

[128]

One would have thought the Union might be at some point at least commending the Department for looking after its members at Parklea and ensuring that they were cared for. And the fact that a lot of them went to John Moroney is neither here nor there. It may well have been the case officers could have been attracted from other centres to Long Bay Hospital creating opportunities for the Parklea people that might have been more attractive for them than Long Bay may have been because of its location. That is an entirely appropriate and commendable approach to take and not one that we say brings the Department into conflict with either the legislation or the guidelines. 82 On the other hand, the applicant disputed the proposition that permanent officer positions were left vacant (and, therefore, casuals were required to be used) in order to accommodate officers displaced as a result of the privatisation of the Parklea Correctional Centre and the potential privatisation of the Court Escort and Security Unit ('CESU'). The applicant relied upon the following: (a) Evidence of Mr Rodgers in cross-examination that: (i) no document was ever produced in relation to the asserted freeze; (ii) he didn't remember who directed that there be a freeze, or who it emanated from; (iii) he did not know when the direction for the asserted freeze was made; (iv) he did not know how long the asserted freeze lasted for; (v) he did not know what vacant positions the asserted freeze applied to; (vi) he could not recall whether the asserted freeze applied at Lithgow Correctional Centre; (vii) he could not positively say whether the asserted freeze applied to positions at Long Bay Hospital; (viii) the freeze definitely applied at Dawn De Loas, but he could not recall whether it applied to all of the positions there or just a portion of them. (b) A submission in respect of Mr Huskins' cross-examination that: When asked to identify any document which identified the specific existence of such a freeze, he could only refer to general policy statement concerning the re-location of displaced employees. When pressed further, he could only specifically identify minutes of a meeting at Dawn De Loas identifying the freeze. Beyond that, he said that there were a " considerable number of positions at metro centres and other non-metro centres where officers had indicated their desire to go to a work location; those had been flagged, not necessarily held open , but flagged for those individuals ". This evidence in fact denies the proposition that, other than at Dawn De Loas, vacant positions had been left open for displaced officers. Mr Huskins went on to admit that the displaced Parklea officers went to their preferred transfer locations, whether or not there were vacancies there, and that large numbers of officers who transferred to the John Morony Correctional Centre at Parklea or the Parramatta correctional centre were held not in vacant positions, but at overstrength (because there were no, or insufficient, vacant positions). (emphasis in original) (c) In respect of Lithgow and Long Bay Hospital, the applicant referred to what it contended was additional evidence demonstrating that there was no freeze on filling vacant positions:

[138]

84 Determining whether casuals have been engaged to perform the regular and ongoing work of the centres as a result of significant numbers of permanent positions being left vacant or subject to long-term absences is a difficult question. It is made more so by the fact that during the Period CSNSW was on notice of outsourcing and claimed there was a significant degree of uncertainty about when and where any surplus officers would be placed. Thus, the claimed need to use casuals in the meantime. 85 It has to be accepted that, regardless of the lack of communications and surprising lack of knowledge by the respondent's witnesses - very senior officers within CSNSW - regarding the arrangements for placing displaced officers as a consequence of the privatisation of Parklea and the proposed outsourcing of the CESU, there would have been uncertainty within the organisation about how it would manage the placement of such a large number of displaced officers, given its commitment that no officer would lose his or her job. Prima facie, unless it was apparent that vacant positions at the three centres would not be filled by displaced officers, it would have been sensible to postpone the recruitment of permanent officers whilst the uncertainty prevailed because of the planned privatisation of Parklea and whilst the process regarding savings in respect of the CESU continued in the Commission. 86 However, there are a number of considerations that suggest it was either unnecessary or impermissible to use casuals during the Period on a wholesale basis as an alternative to appointing permanent officers until it became clear where and when any displaced officers could be deployed. The first is that from the time the announcements were made regarding outsourcing until matters were finalised, a period of many months passed. By late 2008 it was apparent there was a possibility that all custodial and non custodial officers from Silverwater (Men's), Parklea and Cessnock Correctional Centres as well as most custodial officers from the CESU would need to be redeployed to another work location. Further, a decision had been made to contract out the management of the wards in the Long Bay Hospital Correctional Centre to Justice Health (although the respondent was aware by early 2009 that such a decision had been placed on hold indefinitely). 87 CSNSW, as part of its redeployment strategy, determined to hold base grade correctional officer vacancies to facilitate the redeployment of correctional officers affected. However, CSNSW would have undoubtedly known in late 2008 that decisions about outsourcing would take months to implement given the tender process and the arrangements that would have been involved regarding handover to the successful tenderer. CSNSW would also have known that the process in the Commission regarding the CESU could take up to six months. In my opinion, a vacancy that exists for six months is a long-term vacancy and it becomes highly questionable that the use of casuals to fill the void for such a long period of time is appropriate. It is apparent from the PSEM Act and the Guidelines that the preferable course would have been to engage temporary employees.

[141]

91 Seventhly, the handover of Parklea occurred in late October 2009, with all officers having been found alternative places by that time and by September 2009 it was known that the CESU would not be privatised. Therefore, as the applicant submitted, even taking the freeze proposition at its highest, it could not have been a reason for keeping positions vacant, and having casuals perform the work of those positions, after late October 2009. There remained a substantial number of vacant officer positions at Long Bay Hospital, Dawn de Loas and Lithgow Correctional Centres even after the date of the handover of the Parklea Correctional Centre when all the staff had been moved out. 92 Additionally, in his evidence under cross-examination, Mr Rodgers conceded that the freeze on filling vacancies because of the Parklea privatisation did not constitute any justification under the PSEM Act for the use of casuals at the centres during the Period. 93 There was recruitment action undertaken commencing on 18 September 2009 in respect of Long Bay, on 2 October 2009 in respect of Lithgow and 7 September 2009 in respect of Dawn De Loas. Whilst the selection process was being followed in respect of these recruitments the respondent was entitled to rely on s 38(3)(c). The difficulty, however, in accepting that from about September and October 2009 the respondent was engaged in recruiting and selecting candidates to fill all vacant officer positions and was, therefore, entitled to rely on s 38(3)(c) to justify the employment of casuals whilst the selection process was continuing, is that: (a) in respect of Long Bay, although recruitment action began on 18 September 2009, there remained a large number of vacant positions at the centre until filled on 19 July 2010. The Court is only concerned with the six months' period ending on 31 December 2009, but it would appear that as casuals were used to fill vacant correctional officer positions for 10 months between September 2009 and July 2010, even if there was a continuing selection process for the whole of that period, which is highly doubtful on the evidence, 10 months cannot be regarded as a short period for the purpose of s 38(3)(c); (b) at Lithgow there was no recruitment action taken for any vacant base-grade Correctional Officer position at all during the Period; (c) at Dawn De Loas, recruitment action commenced in September 2009, but large numbers of vacant positions were not the subject of any recruitment action until March 2010. Mr Rodgers conceded CSNSW could not provide an explanation for this, and this resulted in casuals performing core, regular and ongoing work. 94 The conclusion I have reached regarding outsourcing is that the freeze on filling vacancies because of the Parklea privatisation and the processes concerning the CESU did not, of itself, justify the wholesale use of casuals at the centres during the Period for the purpose of filling those vacancies. That is not to say, however, that the use of casuals under s 38(3)(a) in connection with the freeze was entirely precluded for the whole of the Period. There may have been circumstances where the use of casuals under that provision was justified. WHETHER CASUALS WERE USED TO PERFORM THE WORK OF LONG TERM VACANT OFFICER POSITIONS

[143]

96 The problem arises in respect of the application of s 38(3)(a) of the PSEM Act and the circumstances in which casuals may be engaged on an irregular or intermittent basis. I repeat that merely because there are vacant officer positions that is, of itself, no barrier to the employment of casuals on an irregular or intermittent basis. However, work will not be irregular or intermittent merely because the employee has the right to refuse an offer of employment if, in fact, that right is rarely if ever invoked and the employment becomes regular or systematic or continuous. There is no irregularity or intermittency about an arrangement whereby work is carried out under consecutive contracts of employment struck continuously day after day in accordance with a fixed roster or otherwise. The PSEM Act is quite clear: work to be carried out by a casual employee under s 38(3)(a) is to be irregular or intermittent. There is no scope to take the Hamzy approach that a casual employee's work pattern may turn out to be regular and systematic despite that not being the original intention. 97 Further, even though an individual's pattern of work is irregular or intermittent, if the effect of the employment of the casual or casuals is to avoid altogether or deliberately or unjustifiably delay the employment of officers, then the use of casual employees would be inconsistent with s 7(3) of the PSEM Act and the Guidelines. 98 The applicant contended that the sheer number of positions left vacant or subject to long term absences meant that there was a significant amount of work required to be done by somebody. It was submitted that the extensive use of casuals at the three correctional centres during the Period correlated with this simple fact, and could not otherwise be explained by the respondent. The applicant further contended that: The identification of significant numbers of vacant posts on the 28 day rosters (including the 28-day spreadsheets commonly referred to as "pencil rosters") for the centres during the Period can only be the result of positions being left vacant or subject to long term absences, since the 209 formula permits nearly all planned leave to be covered by the permanent staff of a correctional centre if all positions are filled. Where casual employees are ultimately rostered to fill those vacancies, then the necessary causal link is established.

[145]

100 Dawn De Loas Correctional Centre at Silverwater was originally solely a protection facility used to house inmates who were under threat or other high profile or public interest inmates. In the first half of 2009, the centre was expanded with the re-opening of two blocks (H and I blocks), which formerly formed part of the Silverwater Male Prison. These blocks are collectively known as Area 2, and usually house 40 regularly classified inmates and 60 inmates in transit to other correctional centres. According to the evidence, it was in Area 2 that CSNSW has used casual employees. No casual employees were used in Area 1, the original protection facility. 101 As at January 2010, CSNSW's staffing establishment for Dawn De Loas was 52 correctional officers. However, the 28-day rosters (that is, rosters which show the shifts to be worked by permanently-appointed officers for upcoming 4-week periods) show that there were only between 31 to 33 officers available to be rostered on posts from 2 June 2009 to 8 November 2009, and 42 officers available to be rostered from 9 November 2009 to 3 January 2010. This, it was submitted, led to staffing deficiencies on a daily basis during the Period: [T]here were about 7.5-12.7 posts per day (averaged on a 28-day basis) unable to be staffed by a permanent officer. These posts were part of the normal, ongoing, regular staffing establishment of Area 2 of Dawn De Loas (which consisted of a total of 14 posts during weekdays). 102 The applicant submitted that this deficiency was made up by the use of casuals: Eight posts in particular were commonly staffed by casual employees, and at least one post was specifically reserved for casual employees. This meant that, across Dawn De Loas as a whole, between 20-40% of correctional officer posts were usually staffed by casuals, and in Area 2 where casuals were used it was frequently over 50%. The number of casuals almost always exceeded the number of employees on sick leave. Planned absences of employees (such as approved recreation leave) have been covered by the rostering of permanent staff in advance. Long Bay Hospital

[147]

106 Lithgow Correctional Centre is a maximum-security correctional centre for male inmates. The maximum inmate population of the centre is approximately 337. Under the operational agreements, which applied to the centre until August 2009, the centre operated with a budgeted staffing establishment of 112 custodial officers (of which 73 were correctional officers). However, from 1 June 2009, an additional two unfunded positions were added, which were filled by permanent employees on overtime. The management plan, which was introduced in August 2009, confirmed that the staffing establishment for the centre was 114 custodial officers (of which 77 were correctional officers). However, the applicant submitted: [N]o additional permanent officers were appointed to the centre prior to the end of the Period. The four additional correctional officer positions established as a result of the management plan were not filled during the Period. In addition, another six correctional officer positions were vacant or subject to long-term planned absences and were not filled for the whole of the Period, and another seven were vacant or subject to long-term foreseen absences for a substantial part of the Period. The four additional correctional officer positions established as a result of the management plan were not filled during the Period. In addition, another six correctional officer positions were vacant or subject to long-term planned absences and were not filled for the whole of the Period, and another seven were vacant or subject to long-term foreseen absences for a substantial part of the Period. 107 In terms of the use of casuals to fill the vacant posts, it was submitted: The 28 day rosters show that, during the Period, only 102-105 custodial staff were available to be rostered onto posts, not the 114 required by the staffing establishment to staff the posts. Consequently, in every 28 day roster over the Period, there were a substantial number of posts each day unable to be staffed by a permanent officer: the average number of daily post vacancies in each 28 day roster over the period ranged from a low of 3 to a high of 10.

[166]

112 Even though, according to the 209 formula, the staffing establishment at a centre has been filled, casuals may still be required to cover absences not addressed by the 209 formula, they may still be needed to carry out additional duties (for example, escort duties) and because recreation leave and sick leave is not taken at an even rate across the entire year as assumed under the 209 formula, casuals may be used from time to time to cover absences on such leave. 113 If the staffing establishment of a centre is not at the level required by the 209 formula, that is to say there are not sufficient officers employed to meet the contingencies envisaged by that formula, it follows that the respondent would need to resort to the use of casuals more so than otherwise would be the case. The applicant's case relies to a large extent on this simple premise. 114 In view of the fact there were vacant officer positions at the three centres for the whole of the Period, in view of the freeze that was placed on the employment of permanent officers during the Period and given the incidence of the use of casuals at the three centres, the evidence suggests there is a strong possibility that casual employees were engaged in circumstances contrary to s 7(3) of the PSEM Act. For example, at Dawn De Loas in June to October 2009, there was a staff establishment of 52 but only 31 to 32 permanent staff were able to be rostered at this time due to vacancies and long-term absences. 115 Nevertheless, I am not satisfied the evidence is sufficient to support the making of orders that the respondent employed casuals as a substitute for, or alternative to, filling the long term vacant officer positions and, therefore, acted contrary to s 7(3) of the PSEM Act. 116 Vacant posts or additional post requirements were filled by a variety of means during the Period: by deploying permanent correctional officers who were held in a reserve post; by varying the operations of a correctional centre; by redeploying correctional officers; by engaging casuals; by permanent officers working overtime; or by a combination of these strategies. Other than on an irregular or intermittent basis it was not sufficiently apparent from the evidence whether casuals were used to fill long-term vacant officer positions or merely to replace officers who were absent for one reason or another. Although there were instances where casuals were used to fill vacant positions on an irregular or intermittent basis I do not consider the evidence in that regard was sufficient to support the making of an order for declaratory relief in these proceedings. 117 Another complicating factor is that a number of the vacant positions were caused by long-term absences. It does not seem to me that the respondent was obliged to fill those vacancies with a permanent officer when there was already an officer allocated to that position, albeit the officer was a long-term absentee. Of course, it would not have been permissible to fill that position with a casual on a regular or systematic basis. The appropriate option would have been to use a temporary employee. 118 The difficulty in reaching a firm conclusion about whether the respondent employed casuals impermissibly and contrary to s 7(3) of the PSEM Act is illustrated by what occurred at Long Bay Hospital on 3 December 2009. It was Mr Smith's evidence that on that day there were eight unplanned absences on the draft roster, 11 vacant posts on the draft roster, eight CCOs on the draft roster, 11 unplanned absences on the final daily roster and nine CCOs on the final daily roster. As the respondent observed, none of these posts, people or absences were identified. 119 An analysis of the roster and Mr Smith's evidence by the respondent showed that seven of the 11 vacant posts on the draft daily roster were to be filled by permanent officers, not CCOs. The remaining four CCOs performed contractor escort duties and, therefore, were not filling long-term vacant officer positions. There were a further five CCOs who did work on 3 December 2009. These CCOs either replaced officers who called in sick or replaced officers who were transferred to other posts that were either vacant (one) or the officer assigned to the post 'went sick' (four). 120 It may well be argued that if the vacant officer position had not existed it would not have been necessary to transfer an officer to that position and replace that transferred officer with a casual. But it is not evident the position was a long-term vacant officer position and it is not evident that the employment of the casual on this occasion was representative of casuals being used to avoid or delay the employment of permanent officers. 121 In taking a further example of the difficulty in analysing the rosters, it was Mr King's evidence in relation to Lithgow that the draft roster created on 26 September 2009 showed that there were six vacant posts as a result of vacant positions or planned leave. He noted that the draft roster included two casuals already rostered four days in advance in posts CO Rover 3 and 4. Mr King claimed these casuals could only have been used to fill long-term vacancies as the other leave was accounted for in the rostering principles. Mr King noted that one custodial officer was on planned sick leave on the draft roster. On the final roster there was one officer on Family and Community Service ('FACS') leave and six custodial staff were on sick leave. 122 According to the respondent's analysis, the 28-day spreadsheet for the period 14 September to 11 October 2009 showed that for Wednesday 30 September there were 60 custodial officers rostered to work on that day. The custodial officer requirement for 30 September was 66 giving a known deficiency at that time of six officers. 123 The 28-day roster for 30 September showed that 59 officers were rostered on that day. When the draft daily roster for 30 September was promulgated on 26 September, and following a number of shift swaps and other adjustments, there were 58 custodial officers rostered to work, which meant that between the promulgation of the 28-day spreadsheet and the draft daily roster, a deficiency of eight officers existed. Six posts were vacant on the draft daily roster. 124 The final daily roster for 30 September shows that five officers were moved to sick leave, one to annual leave, one to FACS leave and seven to industrial action. In addition, the final daily roster showed that two officers worked posts in a higher duty capacity and 14 officers worked overtime, including nine officers to backfill for industrial action taken by the C watch. Four posts remained vacant and one officer swapped from a C watch to an A watch. 125 Only two CCOs (Vallis and Gillespie) worked on 30 September 2009 on CO Rover 3 and CO Rover 4. I agree with the respondent that it is not possible to conclude that CCOs Vallis and Gillespie appeared on the draft daily roster to fill long-term vacancies, as Mr King deposed, as opposed to covering officers who, it was known in advance, would be on extended leave or annual leave. 126 Whilst the evidence points strongly in the direction that casuals at the three correctional centres were employed to carry out the work of long-term vacant officer positions within the period 1 June 2009 to 31 December 2009 contrary to s 7(3) of the PSEM Act, there is sufficient uncertainty in that regard, which has caused me to decline the orders sought by the applicant in that respect. Whether casuals were employed in a manner inconsistent with s 38(3) of the PSEM Act

[167]

127 On the other hand, it seems to me that in some cases casuals were used contrary to s 38(3) of the PSEM Act. For instance, CCOs Vallis and Gillespie worked shifts every week from when they commenced with the Department in July 2009 to 31 December 2009. CCO Vallis worked four shifts at Lithgow every week during the period July 2009 to 31 December 2009 with the exception of the weeks commencing 23 November, 14 December, 21 December and 28 December. CCO Gillespie worked four shifts at Lithgow every week during the period July 2009 to 31 December 2009 with the exception of the weeks commencing 24 August, 21 September, 16 November and 23 November. 128 I find it difficult to understand how such patterns of work could be described as irregular or intermittent. Irregular means erratic, variable, haphazard or sporadic. Intermittent, in the context in which it is used, means discontinuous or stopping and starting at intervals. Notwithstanding that a new contract of employment may be struck each day or shift, if the person carries out work on a regular or systematic basis for six months (works shifts every week and four shifts every week with the exception of four weeks), they have not been engaged for the purpose of carrying out work that is available only on an irregular or intermittent basis. 129 In relation to Long Bay Hospital and Dawn De Loas Correctional Centres, there were examples of individuals employed as casuals working a significant number of shifts during the Period, but not to the extent of, nor with the same degree of regularity as, the pattern worked by CCOs Vallis and Gillespie at Lithgow. It is, therefore, more difficult to conclude that the casuals at Dawn De Loas and at Long Bay were used in a manner inconsistent with the provisions of s 38(3). 130 Whilst I consider the evidence regarding CCO Vallis and CCO Gillespie is sufficient to support an order being made to the effect that their employment at Lithgow Correctional Centre within the period 1 June 2009 to 31 December 2009 was inconsistent with s 38 of the PSEM Act and was accordingly not permitted by law, given the discretion I have under s 154 of the Industrial Relations Act I do not propose to make such an order. The applicant submitted that the Court might not find it necessary to make any declaratory order if the Court were to resolve the major issues between the parties regarding the interpretation of the relevant provisions of the PSEM Act. I consider the Court has gone a long way towards doing so. CONCLUDING STATEMENT

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Justice and Attorney General

At a glance

Court

Decision date

Before

Source

Judgment (170 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (26)

Cited By (1)