Holly v Director of Public Works and Ors

(1988) 14 NSWLR 140

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(Judgment by: Mahoney JA)

Between: Holly
And: Director of Public Works and Ors

Court:

Judges: Kirby P
Samuels JA

Mahoney JA

Subject References:
PUBLIC SERVICE
APPEALS
Government and Related Employees Appeal Tribunal
Jurisdiction
Ministerial employees in Department of Public Works deemed employees of Director
Employees in 'service of Crown'
Definition of 'employer'
Employer making appointment
Right of 'other employees' to appeal
CROWN
Ministers and Departments of State
Ministerial appointees
Nature of employment of
'In service of' the Crown
Whether right of appeal against appointment to vacant position

Legislative References:
Government and Related Employees Appeal Tribunal Act 1980 - ss 20, 4(1) definition "employee", "employer"

Case References:
Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) - (1955) 92 CLR 113
Cole v Director-General of Department of Youth and Community Services - (1986) 7 NSWLR 543
Electricity Commission of New South Wales v Australian United Press Ltd - (1954) 55 SR (NSW) 118; 72 WN (NSW) 65
Enever v The King - (1906) 3 CLR 969
Fisher v Oldham Corporation - [1930] 2 KB 364
Helmers v Coppins - (1961) 106 CLR 156
Inglis v Commonwealth Trading Bank of Australia - (1969) 119 CLR 334
Josephson v Young - (1900) 21 LR (NSW) 188; 17 WN (NSW) 12
Lecture League Ltd v London County Council - (1913) 108 LT 924
Lord Advocate v Babcock & Wilcox (Operations) Ltd - [1972] 1 WLR 488; [1972] 1 All ER 1130
McGraw-Hinds (Aust) Pty Ltd v Smith - (1979) 144 CLR 633
Metropolitan Meat Industry Board v Sheedy - [1927] AC 899
Narich Pty Ltd v Commissioner of Pay-roll Tax - (1983) 58 ALJR 30
New South Wales v The Commonwealth - (1908) 6 CLR 214
R v Graham - (1875) 32 LT 38
Reece v Ministry of Supply and Ministry of Works and Planning - [1945] 1 All ER 239
Rural Bank of New South Wales v Hayes - (1951) 84 CLR 140
Ryder v Foley - (1906) 4 CLR 422
Secretary of State for Employment and Productivity v Clarke Chapman & Co Ltd - [1971] 1 WLR 1094; [1971] 2 All ER 798
Stanbury v Exeter Corporation - [1905] 2 KB 838
Stevens v Brodribb Sawmilling Co Pty Ltd - (1986) 160 CLR 16
Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) - (1955) 93 CLR 376

Hearing date: 6-7 July 1988
Judgment date: 10 August 1988

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Judgment by:
Mahoney JA

In August 1986, a vacancy occurred in a position in the Department of Public Works ordinarily filled by an officer of the Public Service. No available officer in the Public Service was relevantly capable or qualified to be appointed. The appellant Mr Holly and the second respondent Mr Schneider applied for the position. Each of them was a ministerial employee in the Department of Public Works; neither was an officer of the Public Service.

The Director of Public Works, the departmental head of the Department of Public Works, recommended that Mr Schneider be appointed to the position. Mr Holly appealed to the Government and Related Employees Appeal Tribunal (the Tribunal) under the Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act). The Tribunal held that it had no jurisdiction to hear Mr Holly's appeal. Mr Holly has appealed to this Court against the Tribunal's decision.

The proceeding has taken a somewhat unusual course. In accordance with the informality of proceeding which, the Court is told, is followed by the Tribunal, no formal evidence was taken. The proceeding before the Tribunal proceeded on the basis of, as it was put, concessions of fact made by the parties during argument. Those concessions have been reduced to writing by counsel and the appeal has proceeded on the basis that the facts so agreed were facts before the Tribunal and that the Tribunal came to its decision on the basis of those facts.

The submission has been that the decision of the Tribunal, as set out in the chairman's long and detailed judgment, discloses that it proceeded upon a misconstruction of the GREAT Act and that therefore there was an error of law such as to allow an appeal to this Court within s 54 of that Act. Counsel appeared for Mr Holly and for the Director of Public Works. Mr Schneider, though served, has not appeared. Counsel have submitted arguments in the appeal. However, they have not sought to deal in detail with the judgment of the Tribunal. Their submissions have been based differently.

It will therefore be convenient to deal with the appeal by reference to the arguments advanced by counsel and without going in terms to the reasons of the chairman, except to the extent that they are embodied in counsel's arguments.

Counsel have agreed upon a statement of facts in the following form:

"1.

Mr Holly, the appellant in these proceedings, on 4 April 1979 was recommended for appointment as a Ministerial employee (electrical/fitter/mechanic).

2.

The person who recommended the appointment of the appellant was an officer of the Department of Public Works.

3.

The appointment of the appellant to the said position was approved on 6 April 1979.

4.

The person who approved the said appointment was an officer of the Department of Public Works.

5.

The appellant worked in the said position until the recommendation that Mr Schneider be appointed to position No 86/301.

6.

During that period the appellant was paid wages through funds allocated to the Department of Public Works.

7.

Mr Schneider, the second respondent, was recommended for appointment as a Ministerial employee, to the position of electrical/fitter/mechanic, on 4 July 1975.

8.

The person who recommended the appointment was an officer of the Department of Public Works.

9.

The appointment of the second respondent to the said position was approved on 7 July 1975.

10.

The person who approved the appointment was an officer of the Department of Public Works.

11.

The second respondent continued to work as a Ministerial employee until he was recommended for appointment to position No 86/301. While so engaged the second respondent was paid through funds allocated to the Department of Public Works.

12.

The vacant position to be filled was that of electrical supervisor (file No PWD 86/301).

13.

This position was within the establishment of the Department of Public Works and the appointment was to be made pursuant to Pt IV of the Public Service Act 1979.

14.

On 10 October 1986 a Selection Committee nominated Mr Schneider as the applicant in respect of whom a recommendation to the Governor should be made for appointment to the vacant position.

15.

A recommendation that Mr Schneider be appointed to the vacant position was made by the Director of Public Works.

16.

There is a long-standing practice within the Department of appointing Ministerial employees, it having been accepted that Ministers have a right, exercising executive authority on behalf of the Crown, to employ people without proceeding under the Public Service Act.

17.

There is thought to be some constitutional authority for this arrangement, and it has been assumed that a verbal delegation exists to make these appointments.

18.

The employment of Ministerial employees such as Mr Schneider and Mr Holly is subject to the Crown Employees (Skilled Tradesmen) Award.

19.

The Award provides that the employment of employees subject to the award may be terminated on one week's notice.

20.

As a matter of fact, the employment of Mr Holly and Mr Schneider was of a permanent nature."

The right of appeal on which Mr Holly relies is that given by s 20 of the GREAT Act. That section, as far as is here relevant, provides:

"20.

Subject to and in accordance with this Part, where an employer has made a decision to appoint or recommend the appointment of one of its employees to fill a vacant office in the establishment of the employer, any other employee of the employer may appeal against that decision to the Tribunal on the ground that. ..."

By s 4(1) the terms "employee" and "employer" are defined. It is agreed that the only portions of those definitions directly relevant are those contained respectively in pars (e) in each definition. The definitions therefore relevantly provide as follows:

"'employee' means:

...

(e)

A person (not being a person to whom paragraph (a), (b), (c) or (d) applies, an officer within the meaning of section 3(g) of the Government Railways Act 1912, or an officer or employee of the Department of Motor Transport) who is employed in the service of the Crown by a person other than the Public Service Board or an employing authority.

'employer' means:

(a)

... in relation to an employee of the class referred to in paragraph (a) of the definition of 'employee':

...

(e)

in relation to an employee of the class referred to in paragraph (e) of that definition-

(i)

... for the purposes of those provisions of this Act relating to the membership and constitution of the Tribunal - the Public Service Board; and

(ii)

for the purposes of those provisions of this Act relating to the making of appeals and the hearing of appeals - the person in whose service the employee is employed."

It is from the terms of s 20 and these definitions that the issues which have been raised in argument arise.

The objection originally made by the Director to Mr Holly's appeal was that he:

"... is currently employed as a Ministerial employee in a position of electrical fitter and as such does not fall within the provisions of the Public Service Act 1979. Accordingly as a temporary employee it is considered that Mr Holly has no right of appeal under the GREAT Act 1980 ...."

It has not been argued on this appeal that a ministerial employee has no right of appeal under the GREAT Act. Nor has it been argued that, because the position in question is one to which ordinarily officers of the Public Service would have a prior claim, a ministerial employee has no right of appeal. There are, it is conceded, circumstances in which, under the GREAT Act, a person not an officer under the Public Service Act 1979 may appeal.

The issue argued on the appeal and as presented in the Director's written submissions derives from s 20. Under that section an appeal lies only "where an employer has made a decision to appoint or recommend the appointment of one of its employees ...". In the present case, as the Court is informed, the appeal is against the recommendation of the appointment of Mr Schneider: no actual appointment has been made. That recommendation was made by, or by a relevant officer for, the Director of Public Works. Therefore, the Director's argument has suggested, there is an appeal only if the Director is, for the purposes of s 20, the "employer" of Mr Schneider and Mr Holly. And, the submission has suggested, the employer of each of these gentlemen is not the Director but the Crown or, alternatively, the Public Service Board, and that therefore the Tribunal had no jurisdiction to hear the appeal.

An issue of this kind is appropriate for an appeal. It is not suggested that the proper remedy is by way of mandamus.

In order to understand the arguments presented in the appeal and the significance of them, it is necessary to refer to (to put the matter in a neutral way) the way in which persons act in the service of the Crown in New South Wales. As was suggested by Mr Sackville in his careful argument, the position is of some complication. For present purposes, it will be sufficient to refer to it in general terms and without detailing the qualifications which, in a particular case, it may be necessary to examine.

The executive government of the State is conducted by the Crown. The Crown relevantly acts through a Governor appointed under the Constitution Act 1902, s 9A. The Governor or the Lieutenant-Governor or Administrator acts in the administration of the government: see ss 9A, 9B and 9C; with, in designated circumstances, the advice of the Executive Council: see ss 35B, 35C and 35D. The functions of government are exercised by the Crown by or with the advice of the Premier and other Ministers appointed from among the Members of the Executive Council (s 35E).

The functions of government are, of course, performed for the Crown by persons engaged to act for it. It is the manner of engagement of them and the incidents of their engagements which are relevant in the present appeal.

Under the general law, the Crown acted through those whom it chose to appoint to act for it. In practice, under the system of responsible government adopted in New South Wales, the acts of the Crown were performed for it by its responsible Ministers, in the manner referred to by Griffith CJ in the much cited case of Ryder v Foley (1906) 4 CLR 422 at 432-433. It followed from this that, under the general law, the responsible Minister might appoint persons to act in the service of the Crown. To the extent to which the power of such Ministers so to act has not been superseded or restricted by statute, the Ministers retain that power of appointment: see Josephson v Young (1900) 21 LR (NSW) 188; 17 WN (NSW) 12.

However, the powers of the Crown under the general law and the powers of its Ministers to appoint persons to serve the Crown in this way have been affected by statute. It will be sufficient for present purposes to refer to the Constitution Act 1902 and the Public Service Act 1979.

Since the commencement of responsible government in New South Wales under the Constitution Act (1855) (18 and 19 Vic, ch 54) "The appointment to all public offices under the Government of the Colony" has been vested in the Governor in Council (s 37); subject to the proviso there set forth in relation to minor appointments: see Josephson v Young (at 194; 15). Section 47 of the Constitution Act 1902 now provides:

"Subject to the provisions of the Public Service Act 1902, and of all other enactments relating to the appointment of officers and being in force at the passing of this Act, the appointment of all public offices under the Government, whether such offices are salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds as hereinbefore mentioned, which appoint- ments shall be vested in the Governor alone:

Provided that this enactment shall not extend to minor appointments which by any Act or by order of the Governor and Executive Council are vested in heads of departments or other officers or persons."

Therefore, minor appointments may be made by heads of departments or others, in accordance with the provisions of s 47. It is accepted that Mr Holly and Mr Schneider were each appointed under powers vested in accordance with the proviso to s 47. No order was referred to in this appeal but it is accepted that it is to be presumed that authority for the appointments was duly conferred: cf Josephson v Young (at 195; 15).

The Public Service Acts from time to time imposed further restrictions upon the powers under the general law which the Crown and its Ministers had to appoint persons to act in the service of the Crown. The form of such Acts and the effect of them has varied from time to time. Reference is made to earlier Acts in Josephson v Young. The Act which is relevant in the present appeal is, it is agreed, the Public Service Act 1979.

As far as is here relevant, the Public Service Act set up or provided for three things: it constituted the Public Service; it made provision for offices ordinarily to be occupied by members of the Public Service; and it conferred rights and obligations upon members of that Service.

The Public Service consists of the persons who are for the time being employed under Pt IV of the Public Service Act. The Service is divided into five principal Divisions and officers are classified to their Divisions by the Public Service Board (s 39). I shall put aside the provisions relating to the Special Division (which deals with departmental heads and similar officers) and refer to appointments made below that level.

In general, a person shall not be appointed to a "position", that is, a position in the Public Service, unless he satisfies a medical examination and has passed the prescribed examination: s 66 and s 67. His appointment is to be made by the Governor on the recommendation of the appropriate Department Head (s 61).

It is not required that a person appointed as a ministerial employee should be a member of the Public Service or satisfy such conditions.

Provision is made in relation to the offices which ordinarily are to be occupied by members of the Public Service. The maximum number of staff to be employed in a department is determined by the Minister in accordance with s 37. The "staff establishment of a Department" shall consist, apart from its Special Division positions, of such other positions, classified and graded by the Board, as are determined from time to time by the Board (s 38). "Position" is defined by s 4 to mean a position in the Public Service set up under Pt IV of the Act.

It is provided that, except in the special cases provided for in, for example, s 64 and s 65, "no appointment of a person who is not already an officer in the Public Service shall be made to a vacant position unless the Board gives a certificate" under s 63 that there is "no available officer in the Public Service who is as capable and qualified, with respect to the position to which the certificate relates, as the person proposed to be appointed". It is accepted that the position to which Mr Schneider has been recommended for appointment is a position to which s 60 and s 63 apply and that an appropriate certificate of the Public Service Board is available.

Provision is made by the Act in various ways in respect of the security of tenure, retirement, and otherwise of officers of the Public Service. But nothing in the Act abrogates or restricts the right or power of the Crown, as it existed immediately before the commencement of the Act, to dispense with the services of any person employed in the Public Service (s 118).

I come now to consider the relationship which exists between those acting in the service of the Crown and the Crown and the corporations through which, directly or indirectly, it performs the executive functions of govern- ment.

It will be convenient to examine this, as far as is necessary for present purposes, by reference to three classes of cases: persons who act in the service of the Crown directly and as such; persons who act in the service of the Crown by acting for bodies which, though separate entities, "represent the Crown" in the sense in which that term is used in constitutional law: see, eg, Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 and Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; and persons acting in the service of the Crown in the sense that they perform functions of government but do so as employees of corporations which, in that sense, do not represent the Crown: see, for example, Rural Bank of New South Wales v Hayes (1951) 84 CLR 140 at 146.

A person who is, as I have described it, acting in the service of the Crown may do so in one or other of several different relationships which may exist between him and the Crown. Thus, he may act in the Crown's service because he has been appointed to an office in which he acts in that way. The office of a constable is an example of this: Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (1955) 92 CLR 113 at 118. Or he may act in the Crown's service because, I think, a contract of employment has been made with him by the Crown and he is, in the ordinary sense, in a master and servant relationship to the Crown. In the present case, Mr Holly did not occupy an office but did what he did under a contract of employment with the Crown. The distinction between acting as a servant of the Crown in an office and acting in the course of a contract of master and servant was discussed in Enever v The King (1906) 3 CLR 969 and was referred to in Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (at 118- 120).

In each case, such a person will act in the service of the Crown in the broad sense. And, in each case, the term "employed" may be appropriately applied to his relationship with the Crown. As the Shorter Oxford Dictionary indicates, "employment" is a term long applied to a position in the Public Service and such a use of it has been recognised in the cases: see, for example, R v Graham (1875) 32 LT 38 at 39.

As I have indicated, either of these relationships may be brought into existence in a number of ways and by a number of different kinds of persons.

Thus, a person may be appointed to an office in the service of the Crown or enter into a contract of employment as the result of a formal act of the Crown itself: in New South Wales that will ordinarily be done by the Governor with the advice of the Executive Council under the Constitution Act 1902. The relationship may be created because of what a Minister or other authorised servant of the Crown does within the scope of his authority, in the sense referred to by Griffith CJ in Ryder v Foley (at 432 et seq). And the relationship may be created by the exercise of a statutory power. Thus, ordinarily appointments to positions in the Public Service are made by the Governor (s 50); or by the Governor on the recommendation of the appropriate Department Head (s 61).

But the relationship so created exists, not with the person who, by the exercise of a general law or statutory power, has brought it into existence but with the Crown itself. Thus, in the case of appointment to the position of a police constable, the appointment may be made by a local corporation: Stanbury v Exeter Corporation [1905] 2 KB 838; or by a watch committee: Fisher v Oldham Corporation [1930] 2 KB 364. In the relevant sense, a Ministerial appointee is a servant of the Crown and not of the Minister. In the case of an officer appointed under the Public Service Act, he is not a servant of the Public Service Board or of the relevant Department Heads. He is, as I have indicated, appointed by the Governor and remains in the service of the Crown in the ordinary sense: cf the Public Service Act, s 118.

Where the relationship is created by a corporation which represents the Crown in the sense to which I have referred, the position may be more complicated. The person may be simply a servant of the corporation and the fact that the corporation represents the Crown and is engaged in the service of the Crown may not, in the particular case, create any relationship between that person and the Crown. Alternatively, the person may, though employed or appointed by the corporation, be, and be only, a person engaged in the service of the Crown. His position in this regard will depend upon the legislation governing the particular corporation and the circumstances of his appointment: see, for example, the operation in this regard of the Energy Authority Act 1976, ss 6(1), 6(2), 9 and 10; see generally s 6 and s 7 and Schedule 2, Pt 2 of the Public Service Act 1979.

Where the corporation in question is not the Crown and does not represent the Crown in the relevant sense: Rural Bank of New South Wales v Hayes (at 146); the employees of the body, though no doubt acting in the service of the Crown in the broad sense, are ordinarily only servants of the corporation. Presumably the officers of that Bank were in that category: see, eg, Government Savings Bank Act 1906, s 32.

I have referred to these matters because under the GREAT Act and under the Public Service Act, reference is made both to bodies which are, in the relevant sense, merely departments of government of the Crown and to bodies which have in law a corporate identity and consequently may, in their own names, enter into contractual and other relationships with those who serve them. And such corporate bodies may include bodies which are, or may be, bodies which do not, in the relevant sense, represent the Crown. It is clear that the GREAT Act is intended to provide for an appeal, not merely by those who are in the direct relationship with the Crown and in that relationship only, but also, for example, by those who are, for example, servants of the Parliament and not of the Crown and those who, as employees of an "employing authority" may fall within the second or the third class to which I have referred: see, for example, the definition of "employer" in s 4, pars (c) and (d) and the provisions of Schedule 4 of the GREAT Act.

I come now to the Construction of s 20 of the GREAT Act. As I have said the submission by the Director of Public Works was that, as it is his recommendation for the appointment of Mr Schneider which is in question, Mr Holly has a right of appeal only if, within s 20, the Director is the "employer" of each of them.

I agree with the submission of Mr Sackville that (if the matter be considered apart from the GREAT Act and the effect of the definitions in s 4) Mr Holly and Mr Schneider are each servants of the Crown and are not servants of the Director. As ministerial employees, they were brought into the service of the Crown by a contract of employment made on behalf of the Crown by the appropriate Minister or Department Head in accordance with the procedures referred to in Ryder v Foley. As far as the evidence before this Court extends, the fact that, as it has been assumed, that contract was recommended and approved by the relevant officer of the Department of Public Works does not, under the general law, create with that officer, the Director or the Department, the relationship of master and servant.

In stating this conclusion, I am conscious that under particular provisions of the industrial law or otherwise, this general position may be altered. But, as I have said, there is nothing before the Court on this appeal to suggest that Mr Holly and Mr Schneider were appointed otherwise than under the ordinary powers of appointment of ministerial employees to which I have referred.

However, it is, in my opinion, clear that it was the intention of the GREAT Act that it should operate upon a position which, in some respects at least, differed from that existing under the general law. And it was the purpose of the definitions of "employee" and "employer" in s 4 to achieve this effect. Thus, in the case of a person employed as an officer of the Legislative Council his employer was deemed to be the President of the Legislative Council although, under the general law, that may not have been the position.

It is therefore necessary to consider the operation of these definitions in the case of Mr Holly and Mr Schneider and to determine whether, by the definitions, they are deemed to be for the purposes of the appeal employees of the Director of Public Works.

It is, I think, not significantly in contest but that these gentlemen are "employees". Each, as a ministerial employee, was employed in the service of the Crown and, whatever be the meaning of par (e) of that definition, neither was employed by the Public Service Board or an employing authority.

The question to be determined is whether, within par (e) of the definition of "employer", the Director is relevantly their employer.

Clause (ii) of par (e) applies "for the purposes of those provisions of this Act relating to the making of appeals and the hearing of appeals". It was, I think, faintly suggested that the effect of the definition given by cl (ii) is not felt by s 20. I do not think that that is so. It was, in my opinion, the purpose of that provision to determine, for the operation of s 20, who should be seen as the employer.

The Director's main submission was that he was not "the person in whose service" Mr Holly or Mr Schneider "is employed" within the definition. His submission was that, to adapt the words of par (e) of the definition of "employee", each of them was "employed in the service of the Crown".

There is, on the face of the definitions, force in this submission. It may be accepted that "person" may include the Crown: see, generally, McGraw- Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633. And the use of the phrase "in the service of the Crown" and the phrase "in whose service the employee is employed" suggests an intention that there should be a correspondence of this kind between the operation of the two paragraphs. However, in my opinion, so to construe the definitions and in particular the concluding words of par (e) of "employer" would give to that paragraph an operation which it was not intended to have. And, I think, the words of the definitions permit of another and more appropriate construction.

The effect of the construction of s 20 and the two definitions which the Director of Public Works proposed would be that ministerial and similar employees in government departments would not have a right of appeal, or not have a right of appeal in cases such as this. Under the preceding legislation, the Crown Employees Board Act 1944, they had such a right of appeal. And it may be (it is not necessary to decide the matter finally in this case) that ministerial and similar employees with employing authorities as defined by the present Act would be similarly affected.

No reason in principle or policy has been suggested why, under the present Act, those who had a right of appeal under the preceding Act should not now have such a right. And, if it be such, no such reason was suggested for differentiating between ministerial and similar employees of department and ministerial and similar employees of employing authorities.

As I have said, it is clear that Mr Holly and Mr Schneider fall within par (e) of the definition of "employee" in the present Act. The problem in this case lies, as Mr Sackville has submitted, in the terms of par (e) of the definition of "employer". The submission is that the effect of the words "the person in whose service the employee is employed" in that definition is to prevent some of the persons within par (e) of the definition of "employee" having a right of appeal.

Paragraph (e) of the definition of "employee" corresponds relevantly with par (f) of the definition of "officer" in s 2(1) of the previous Act. In the previous Act, the definition of "employer" was:

"'Employer' means an employing authority in whose service an officer is employed and, in relation to officers of the classes referred to in paragraphs (a), (b) and (f) of the definition of 'Officer' means the Public Service Board."

The effect of the definition in the previous Act was that any person who was employed as set out in par (f) of the definition of "officer" was treated as employed by the Public Service Board. But he could appeal against any decision or determination "by the employer or other the person in whose service he is employed" (s 10(1)). Therefore the definition of "employer" there used did not restrict the meaning of "officer" and therefore restrict the right of appeal which an employee who fell within par (f) of that definition would have.

As I have said, the formula used in the definition of "employer" in the previous Act was changed when the present Act was enacted. But it would, I think, be curious if the intention had been that, by the change, those entitled to appeal under the previous legislation should have no such entitlement under the present. And it would, I think, be curious if such an intention were to be given effect in such a way. I am inclined to think that the purpose of the change between the two Acts was to substitute for the Public Service Board as the respondent to appeals the departmental head or the department or employing authority whose recommendation was in question and to whom the employee's services were rendered.

On such a view of the purpose of the change between the two Acts, the words "in whose service the employee is employed" are to be given a meaning different from the meaning given to "employed in the service of the Crown" in par (e) of the definition of "employee".

Such a construction accords with the meanings which the terms used in the two definitions may have. In the definitions, "employ" and its cognates are used in various ways. The term, in its ordinary meaning, may be used to mean any or all of several different things. Thus, to take some examples, it may refer to the relationship of employer and employee as constituted by a contract of employment: see Reece v Ministry of Supply and Ministry of Works and Planning [1945] 1 All ER 239 at 242; it may refer to a broader relationship in which (whether as an officer, an employee under a contract of employment or otherwise) a person makes his services available to another and that other avails himself of those services: Lecture League Ltd v London County Council (1913) 108 LT 924 at 927; or it may refer to the act of making such a contract or, perhaps, less ordinarily, appointing a person to an office: cf Helmers v Coppins (1961) 106 CLR 156 at 158 et seq.

If, in par (e) of the definition of "employer", it is used in the second of these senses then, in the present case, the employee would be the Director of Public Works. It would be appropriate to describe a departmental head as being, for this purpose, a person in whose service the employee was employed.

This, as Mr Sackville's argument suggested, might involve giving to the word "employed" or the word "service" in "employed ... in the service of the Crown by a person other than ..." in par (e) of the definition of "employee" a meaning different from that given in "person in whose service the employee is employed". But the words "in the service of" are used elsewhere in the definition in a manner similar to that to which I have referred. Thus, in par (c) of the definition of "employee" the words "employed ... in the service of an employing authority" are used to include persons who, though in the service of the Crown in the sense to which I have referred, make those services available to the employing authority in question. Thus, in the case of the first of the employing authorities specified in Schedule 4 to the GREAT Act, the Board of Fire Commissioners of New South Wales, such a position obtains, or at least may obtain. It is not necessary to pursue the detail of the Fire Brigades Act 1909, s 27, but some of the persons appointed under that section would be appointed to offices rather than engaged under contracts of employment and persons appointed to offices under that section would, I think, be employed in the service of the Board in the sense here relevant.

In my opinion, therefore, the employer of Mr Holly and Mr Schneider was the person in whose service, in this sense, they were employed. That person was, in this case, the Director as their departmental head.

It was, in addition, submitted that the appointment here in question was not an appointment to "a vacant office in the establishment of the employer".

There is, in the GREAT Act, no definition of "establishment". Terms analogous to the term are used in, for example, the Public Service Act 1979: see, eg, s 38(1). However, the GREAT Act applies beyond the departments to which such provisions apply. Therefore, in my opinion, the term is to be understood in its ordinary meaning, modified to the extent required by the GREAT Act. The term "the establishment of the employer" refers to the operations which, in an organised way and at specified places, the employer carries on: see Lord Advocate v Babcock & Wilcox (Operations) Ltd [1972] 1 WLR 488 at 501; [1972] 1 All ER 1130 at 1141 per Lord Kilbrandon and Secretary of State for Employment and Productivity v Clarke Chapman & Co Ltd [1971] 1 WLR 1094; [1971] 2 All ER 798. In s 20, the term is used in the context of an "employer" who has made a decision to appoint or recommend the appointment of a person. Applied in the context of a government department, where there is ordinarily no legal entity by whom the department is conducted, the phrase must, I think, be seen as applying to the operations controlled by the departmental head in the manner to which I have referred.

For these reasons I am of opinion that there was in this case jurisdiction in the Tribunal to hear and determine the appeal. The appeal should therefore be upheld. The proceeding should be returned to the Tribunal to be dealt with in accordance with law. The respondents should pay the costs of the appeal.

Appeal allowed.

Proceedings returned to Government and Related Employees' Appeal Tribunal for re-hearing.

Solicitors for the appellant: Turner Freeman.

Solicitor for the respondents: H K Roberts (State Crown Solicitor).

B A Gray, Barrister.