Public Service Association (NSW) v Public Service Board [2015] NSWIRComm 15 | Case summary

Consideration

Mr P Ginters of counsel for the OEH submitted that the dispute notification, and the relief sought by the AWU as specified in its communications on 26 February 2015 "are impermissibly directed at, or related to, the question of the 'engagement of', or the 'failure' of the OEH to engage temporary employees to positions of ongoing employment as non-executive employees." Counsel for OEH submitted: The effect of sections 58(6) and (7) is to limit the jurisdiction of the Commission to deal with matters that would, in the absence of such provisions, be considered "industrial matters".
The OEH further noted that ss 58(6) and (7) appeared in predecessor public sector legislation in materially similar terms, such that the section excludes "from the ambit of an industrial matter a matter, question or dispute relating to the appointment/engagement of (or failure to appoint/engage) a person to public service employment".
The OEH referred to various authorities that considered the predecessor provisions to s 58 of the GSE Act: Public Service Association (NSW) v Public Service Board (NSW) (1985) 14 IR 414; Re Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment Award [2003] NSWIRComm 405; (2003) 129 IR 369; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries - Fisheries Division) [2013] NSWIRComm 64.
The AWU contended that the essential industrial matter in the dispute notification is the claim that the "length of service as temporary officers" of a number of temporary employees "has exceeded the maximum period prescribed by the Award". The relevant Award is the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award.
The AWU rejected the OEH's contention that the dispute notification is directed at, or related to the engagement (or the failure to engage) within the meaning of s 58 of the GSE Act. It was submitted that the industrial matter stems from the "existing rights of already engaged employees."
It was further submitted that: Reference to "the person's employment" is a reference to something that is pre-existing and which continues without interruption as the person is "assigned" to a role in the ongoing employment. We think this argues strongly that conversion of temporary employment to ongoing employment is not the same as the engagement or failure to engage a person to public sector employment.
On this issue, the OEH submitted that: …an award which sought to provide for the conversion of Public Service casual employees to ongoing (permanent) employment would be caught by the terms of sections 58(6) and (7). See for example, Re New South Wales TAFE Commissions (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 esp. at 362.2-3, 369.4-.5 per Wright and Schmidt JJ; and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries - Fisheries Division) [2013] NSWIRComm 64 at [2], [30]-[39].
In Re New South Wales TAFE Commissions (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 ("TAFE Case"), Wright and Schmidt JJ said at 368-369: While in the ordinary case the appointment or failure to appoint a person to a position will be an ''industrial matter'' as defined in the 1996 Act and an award made in respect of such a matter may properly be characterised as an award concerning a ''condition of employment'', such a matter arising at the TAFE Commission is taken beyond the Commission's award making power by s 19 of the TAFE Act. It follows that there is power in the TAFE Commission to appoint staff on merit and to do so on conditions of employment fixed by the TAFE Commission or by regulation. That power is subject to the Commission's award making power under the 1996 Act, except as to any award regulating the appointment or failure to appoint persons to the staff of TAFE. By virtue of the limitation imposed by s 19 of the TAFE Act, the Commission has no power to make an award as to such matters. As there is no ambiguity on the face of these statutory provisions, it follows that the question which requires our determination is whether the claim (or any part of it), sought to be advanced in this case by the Federation, as in the Ombudsman's case, is beyond the Commission's power as it relates to the appointment or failure to appoint persons to the staff of the TAFE Commission. In so far as the claim seeks an award which requires particular part-time casuals employed under the award to be appointed to part-time positions or requires the appointment of temporary part-time staff to permanent part-time positions to which they are not presently appointed, the terms and effect of s 19 preclude jurisdiction. The award provisions requiring the creation of positions to which such persons may be appointed clearly relate to questions of appointment and are also beyond the Commission's award making power.
Although the Full Bench decision in the TAFE Case dealt with s 19 of the Technical and Further Education Commission Act 1990, that section is in materially similar terms to s 58(6) and (7) of the GSE Act and the predecessor public sector legislation.
The OEH submitted that there is no material distinction between the findings of the Full Bench in the TAFE Case and the relief sought in this matter, save as to the present matter being directed at the appointment (or engagement as it is termed in the GSE Act) of "temporary employees" as opposed to "temporary part-time" employees.
The AWU in response submitted the decision in TAFE Case stood for the "appointment of casual employees to permanent part-time" and should be distinguished from the present dispute notification in which the AWU contends that the temporary employees who are subject to the proceedings have, or should have been "converted" to permanent employees in accordance with rule 12 of the GSE Rules, distinct from being "appointed" or "engaged", such that the subject matter is an industrial matter. I do not agree.
Rule 12 of the GSE Rules empowers a conversion from temporary employment to ongoing employment as defined in s 43(2) and (3) of the GSE Act. It is implicit in these definitions that for the conversion to occur the agency head must first determine that there is a need for "ongoing employment". If there is such a need "existing temporary employees" may be considered for conversion, that is, appointment to the ongoing role. The "temporary purpose" justifying the temporary employment may persist or may now be determined not to be temporary. Regardless, it is a different type of engagement which is involved. Rule 12 does not create in a temporary employee a right to conversion on the expiration of 12 months' service. It does provide to such persons an advantage over persons not currently employed should the agency head decide to engage someone in ongoing employment "at-level".
I am unable to distinguish this matter from the TAFE Case. There may be fewer prescribed steps, but the first order or direction sought by the AWU is directed to precisely the same relief as sought in the TAFE Case. In respect of the alternative order or direction I accept the submission of the OEH that it is "impermissibly directed at, or related to, the question of the 'engagement of', or the 'failure' of the OEH to engage temporary employees to positions of ongoing employment as non-executive employees."
In the Public Service Association (NSW) v Public Service Board (NSW), the Full Bench found, at 416, that the language of s 65A of the Public Service Act was "in wide and unequivocal terms". In Re Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment) Award, the Full Bench endorsed that view at [64]-[65]. The legislation then under consideration was s 22 of the Public Sector Employment and Management Act which the Full Bench was in no doubt was in relevantly the same terms as s 65A of the Public Service Act.
This approach was followed by Backman J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries - Fisheries Division). In that case her Honour was considering an application for an award seeking relief in respect of long-term temporary employees who sought permanent appointment under s 31 of the Public Sector Employment and Management Act which has an analogue in rule 12. It was contended that the relevant Department Head's discretion in determining the availability (or lack) of ongoing work had miscarried. As such it was said to be directed to a preparatory step to engagement or appointment and therefore was remote from the reach of s 22 of the Public Sector Employment and Management Act.
Her Honour expressed, at [22], the issues confronting her as: In my view, there are two primary questions which need to be decided on the DPI's preliminary application. The first of these is whether the positions in issue, which involve the permanent appointment of long-term employees in accordance with the processes under s 31, may be properly characterised as permanent appointments to vacant positions. If they are to be characterised as vacant positions, a second question arises as to whether the dispute brought under s 130 of the Act falls within s 22(1) as one "relating to" the failure to appoint the long-term temporary employees to permanent positions in accordance with the procedures under s 31. If the answer to the second question is in the affirmative, it follows that the Commission is precluded from dealing further with the subject matter of the dispute because it is not an "industrial matter" under the Act. (Emphasis added)
Although dealing with different statutory language the first issue addressed by her Honour finds reflection in the argument of the AWU that these employees "are already employed". After traversing the relevant provisions Backman J concluded, at [29], that: The clear effect of the statutory regime, with particular regard to s 9(5), is that temporary employees do not hold positions in a Department. It follows from this analysis that appointments of long-term temporary employees made under s 31 are, or constitute, appointments to vacant positions.
Under the current statutory regime, "vacant positions" equate to "ongoing employment". Consistent with her Honour's conclusion and my analysis at [32] above, the transition from temporary to ongoing employment constitutes engagement within the meaning of ss 58(6) and (7) of the GSE Act.
As to the second issue identified by Backman J, her Honour considered authorities directed to the meaning of the phrase "relating to" or cognates of that phrase, at [32]-[37]. Backman J held that they are words of "undoubted width" and were to be interpreted in the relevant statutory context. Her Honour held, at [39]: In my view, the requirement to be satisfied [as to the availability of ongoing work] constitutes, or may constitute, a step precedent or on the route to the decision to approve the appointment. In other words, it is a necessary step which may or may not lead to an appointment to an officer's position. It therefore provides a sufficient connection, or is connected, to s 22(1), that is, the dispute about the Director-General's approach to s 31(3)(c) is a dispute "relating to" the appointment or failure to appoint long-term employees to a vacant position and is therefore caught by s 22(1).
By parity of reasoning the same may be said of the AWU's claims for relief.
In my view the AWU's reliance on the award is also misplaced. The award cannot have the effect of requiring conversion to "ongoing employment". If it did it would be invalid for the same reasons as the orders now sought are beyond the jurisdiction of the Commission.
The AWU's submissions do not convince me to conclude otherwise than that ss 58(6) and (7) of the GSE Act are to be read such that matters directed at or related to the "engagement" or "failure to engage" temporary employees in ongoing employment are not "industrial matters" for the purposes of the IR Act. The dispute notification brought by the AWU is directed to such matters.
Accordingly, I grant the relief sought on the respondent's motion.

Public Service Association (NSW) v Public Service Board

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Judgment (8 paragraphs)

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