Director-General of Education v Suttling

162 CLR 427
1987 - 0212A - HCA; 69 ALR 193

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(Judgment by: Wilson J, Dawson J)

Between: Director-General of Education
And: Suttling

Court:

Judges: Mason ACJ

Wilson JBrennan J
Deane J

Dawson J

Subject References:
Public Service

Hearing date: 26 September 1986
Judgment date: 12 February 1987

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Judgment by:
Wilson J
Dawson J

We have the misfortune to disagree with the view of the majority.  It is unnecessary to enter into any debate about the general principles that inform the law governing the relationship of the Crown and its civil servants.  In our view, whether as a matter of general theory the relationship is one of status or contract, in the case of officers employed in the Education Teaching Service ("the Service") the incidents of that relationship are embodied in the statute law of New South Wales.  Two statutes which are of particular relevance in that regard are the Education Commission Act 1980 (NSW), as amended ("the Act") and the Government and Related Employees Appeal Tribunal Act 1980 (NSW), as amended ("the GREAT Act"). It is upon a proper understanding of these statutes that the answer to Mr Suttling's claim depends.  

Mr Suttling is an officer in the Service.  He is not a temporary employee. He entered the Service as a primary school teacher in February 1965.  In January 1979 he was appointed as the Deputy Principal of the Roselea Primary School, Carlingford.  In 1981 his name was placed on the Third Primary Promotions List, with the result that he was eligible for promotion to Deputy Principal of a Class 1 Primary School, or to Principal of a Class 2 Primary School or Central School.  However, although eligible, it was not likely that Mr Suttling would have succeeded in 1982 in securing such a promotion.  

In November 1981 applications were invited from teachers interested in appointment to a position in the Professional Services Centre at Strathfield described as Senior Education Officer (Class II) and numbered 14503/218.  The notice included a paragraph reading as follows:   

"GENERAL:  Appointment will be by secondment until the commencement of the 1984 school year, with the possibility of an extension.  Administration hours and conditions apply."

Mr Suttling applied for the position and by letter dated 26 January 1982 he was advised that approval had been given to his secondment to the position, commencing from 2 February 1982 and effective to "Beginning of 1984 school year".  Whilst on secondment, Mr Suttling retained the status and classification applicable to his substantive rank, namely, Deputy Principal of a Class 2 Primary School. The additional remuneration payable to him whilst serving in the higher position was paid to him in the form of an allowance.  

Unfortunately for Mr Suttling, plans were made during 1982 for a reorganization of that part of the Service to which he had been seconded. With effect from early in 1983, two regions were to be amalgamated and 72 positions abolished.  The centre at Strathfield was to be closed and the work which had been carried on there was to be performed at Arncliffe.  Despite encouragement to apply for a similar position at Arncliffe, Mr Suttling refused to do so. Arncliffe was not a convenient location, having regard to his place of residence.  No other position of equivalent status was available. Mr Suttling then applied for, and was appointed to, the position of Principal Grade 3 at the Milson's Point Primary School, with effect from 1 February 1983.  The application was made without prejudice to his claim for continued secondment to Strathfield.  The salary he received during 1983 was less than the aggregate sum made up of salary and higher duties allowance that he would have received during that year if his secondment to Strathfield had continued. He instituted proceedings in the Administrative Law Division of the Supreme Court of New South Wales for recovery of the difference.  At first instance, his claim was dismissed but this decision was reversed by a majority in the Court of Appeal (Glass and McHugh JJ.A., Kirby P. dissenting).  It is from this decision that the appellants now appeal.  

The Act makes no mention of any appointment by way of secondment.  Of its nature the word would seem to describe the temporary transfer of an officer away from the position to which he has been permanently appointed.  Section 51 of the Act deals with temporary appointments of officers and reads as follows :   

"51.(1)

  Subject to subsection (2), an officer of the Education Teaching Service may be temporarily appointed by the Director-General of Education to a position within that service which is vacant or the holder of which is suspended, sick or absent.

(2)

  An appointment under subsection (1) shall not be made except in accordance with such conditions of employment as are determined by the Director-General of Education with the concurrence of the Commission.

(3)

  The Director-General of Education shall not make a temporary appointment under subsection (1) of an officer of the Education Teaching Service to carry out the duties of a permanent position for a period in excess of 6 months unless he is satisfied that an appointment in excess of that period should be made having regard to the exigencies of that service."

Counsel for the appellants submitted that s 51 was not concerned with the secondment of officers at all.  He argued that the power to make such appointments fell within the general responsibility of the Director-General as defined by s 37 of the Act.  However, we see no reason to look past s 51.  The post of Senior Education Officer Class II located in the Professional Services Centre at Strathfield bore a distinguishing number and clearly appears to have been a permanent position within the Service.  We were not told otherwise. Presumably it was vacant.  In appointing Mr Suttling to the position, the Director-General was exercising the power conferred upon him by s 51 and was therefore subject to any constraints that the section laid upon the exercise of the power.  But the critical issue is as to the extent of the power:  did Mr Suttling's appointment confer upon him an enforceable right to the salary and conditions attached to the position of Senior Education Officer Class II at the Professional Services Centre at Strathfield for a period of two years expiring at the end of January 1984 notwithstanding that the position was abolished a year earlier?  

We answer that question in the negative.  Obviously, the construction of the section is not without difficulty but in our opinion it does not authorize the Director-General to confer security of tenure on the temporary appointment of an officer.  That is not the function of s 51.  Its function is threefold: to recognize the need for a power to ensure that positions which are vacant or the holder of which is suspended, sick or absent are filled on a temporary basis by the appointment of other officers to carry out the duties of the position , to ensure that such appointments are made only in accordance with conditions which have the concurrence of the Education Commission and, finally, to limit the maximum period of a temporary appointment to a permanent position to six months unless the Director-General is satisfied that the exigencies of the Service require a longer appointment.  

Temporary appointments are a common incident in the administration of any public service.  But the power to make them, if used unwisely, can provoke staff resentment.  The limitation of such appointments, in the ordinary course of events, to not more than six months makes an important contribution to the smooth functioning of the Service and to industrial harmony.  A temporary appointment to a vacant position for any length of time works to the prejudice of those officers who may aspire to be promoted to the position.  It has the effect of blocking the paths of promotion available to the lower ranks.  There is no avenue of appeal against a temporary appointment:  GREAT Act, s 21(1 ).  

The express denial to the Director-General of any power to make a temporary appointment to carry out the duties of a permanent position for a period in excess of six months unless the stated condition is satisfied does not empower him, given the satisfaction of the stated condition, to make a binding appointment for a finite term in excess of six months.  The section does not empower him to do so in express terms.  Nor, in our opinion, is the existence of such a power properly to be implied.  See generally, Bennion, Statutory Interpretation (1984) pp.239-247.  Words should not be added by implication to the language of a statute unless they are needed in order to give sense and meaning to a provision construed in its context:  Tinkham v. Perry (1951) 1 TLR 91 , at p 92; Thompson v. Goold & Co. (1910) AC 409, at p 420; B.P. Refinery Pty. Ltd. v. Hastings Shire Council (1977) 52 ALJR 20, at p 25; 16 ALR 363 , at p 374.  

The only power conferred by the section is to make a temporary appointment. Circumstances may make it expedient that the appointment continue beyond six months.  The incumbent of a position may be absent for an extended period by reason of sickness or leave.  The exigencies of the Service may render it inappropriate to make a permanent appointment to a vacant position for the time being. Section 51(3) ensures that a temporary appointment will not be allowed to continue for a period in excess of six months without the Director-General directing his mind to the propriety of that appointment. Where, at the time when a temporary appointment is made, it is expected that the exigencies of the Service will make it expedient for the appointment to continue beyond six months there can be no objection to the anticipated term being stated.  That was done in the case of Mr Suttling's appointment.  It was expected that his secondment would continue for two years and possibly longer. But there could be no binding commitment that it would do so.  The exigencies of the Service, once perceived, are not immutable.  They are always open to change.  Section 51 must be construed consistently with the general responsibility of the Director-General "for the general conduct and the efficient, effective and economical management of the functions and activities of the Education Teaching Service":  s 37(1). It was Mr Suttling's misfortune that the discharge by the Director-General of this responsibility led to a curtailment of the term of his secondment that had been anticipated at the time of his appointment.  His expectations have been denied and he has every right to feel disappointed and aggrieved.  In forecasting a period of two years for the secondment with the possibility of an extension, the advertisement calling for applications was proved, by subsequent events, to be grossly misleading.  But unfortunately, in our view, Mr Suttling cannot complain to a court of law.  Like any other temporary appointment in the Service that carries with it a higher duties allowance for the appointee there can be no legal right to its continuance beyond the period of his occupancy of the position.  The Act confers no security of tenure upon a temporary appointment.  Such security of tenure as Mr Suttling enjoys under the Act relates to the classification pertaining to his substantive appointment, formerly as Deputy Principal of a Class 2 Primary School and now as Principal Grade 3 of the Milson's Point Primary School:  see the Act, ss 71-78 and the GREAT Act, ss 23-25. Whether the latter appointment is a promotion from his former position as Deputy Principal does not appear .  

If s 51 of the Act were to be construed so as to confer on the Director-General a power to make binding temporary appointments for a finite term, in our opinion the following extraordinary consequences would ensue:  

1.

  Subject to the satisfaction referred to in s 51(3), there is no upper limit on the term that may be fixed.  A Director-General or his successor could find his freedom and ability to discharge his weighty responsibilities under the Act (ss 37, 38) seriously fettered.

2.

  Greater security of tenure would attach to a temporary appointment than to a substantive appointment to a permanent position.  Section 47 deals with appointments of the latter kind and does not contemplate an appointment for a finite term. At any time after an officer is appointed under s 47, the Director-General may find it necessary to exercise the powers conferred upon him by ss 71-73 of the Act.  Provided the Director-General considers it to be in the interests of the Service to do so, the officer may be transferred from his permanent position to another position in the Service carrying the equivalent classification and salary:  s 71.  The transfer may be effected without his consent and even in the face of his complete opposition.  The GREAT Act does not give the officer any right of appeal against such a decision.  An officer holding a temporary appointment under s 51 is not exposed to the risk of action under s 71.  Section 72 authorizes the Director-General in the circumstances specified to dispense with the services of persons employed in the Service.  Section 73 outlines the circumstances  in which the Director-General may reduce the salary of an officer.  Decisions taken under either of these sections may be subject to a right of appeal under ss 23 and 24 of the GREAT Act.  But if Mr Suttling is correct, his entitlement to the emoluments pertaining to the position remains unimpaired throughout the stated period of the temporary appointment notwithstanding that the position may be abolished in the meantime.

3.

  The legislative scheme embodied in the Act and the GREAT Act makes no provision for enforcement of a binding commitment to continue a temporary appointment for a finite period.  These Acts provide a code governing the employment of teachers in the Service.  Any construction of the legislation that allowed for access to the common law courts for the enforcement of alleged contractual rights would make the administration of such a large and complex undertaking difficult, if not impossible.  It must have been the intention of the legislature that the specially constituted Government and Related Employees Appeal Tribunal would provide the forum in which employment disputes involving officers of the Service would be resolved.

 

We should say, in conclusion, that in determining Mr Suttling's claim we do not find it necessary to consider the implications, if any, which flow from the fact that s 42 of the Act deems him to be employed by the Government of New South Wales in the service of the Crown and the related question of the meaning and effect of s 97 of the Act. Suffice it to say that if those provisions do not lend positive support for the conclusion to which we have come, they certainly do not stand in opposition to it.  

We would allow the appeal.