Holly v Director of Public Works and Ors

(1988) 14 NSWLR 140

---

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

---

The Government and Related Employees Appeal Tribunal Act 1980, s 20, provides that where an employer makes a decision to appoint one of its employees to a vacant position, any other employee of the employer may appeal against that decision.

"Employee" is relevantly defined in s 4(1) as:

"(e)

... a person who is employed in the service of the Crown by a person other than the Public Service Board or an employing authority."

"Employer" is defined in s 4(1) in relation to an employee of the class referred to in par (e) of the definition of employee as being:

"(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."

Held

That by reason of the definition of "employer" and "employee" in s 4(1) of the Act a ministerial employee employed in the Department of Public Works is deemed to be employed in the service of the Director of Public Works, even though under general law he is employed in the service of the Crown, and accordingly ministerial employees have a right of appeal under s 20 of the Act to the Government and Related Employees Appeal Tribunal.

Discussion of the arrangements for the employment of persons in the service of the Crown.

Appeal

This was an appeal from the decision of the Government and Related Employees Appeal Tribunal dismissing an appeal under the Government and Related Employees Appeal Tribunal Act 1980, s 20.

R F Wilkins, for the appellant.

R A Sackville, for the respondents.

Cur adv vult

10 August 1988