Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Macquarie Generation re suspension of Psa delegate [2003] NSWIRComm 9 (7 February 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Macquarie Generation re suspension of PSA delegate [2003] NSWIRComm 9

FILE NUMBER(S): IRC 257

HEARING DATE(S): 07/05/2002, 08/05/2002, 13/06/2002, 14/06/2002, 04/07/2002, 02/08/2002

DECISION DATE: 07/02/2003

PARTIES:

APPLICANT

Public Service Association and Professional Officers Association Amalgamated Union of New South Wales

RESPONDENT

Macquarie Generation

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT

Mr D Chin of Counsel

SOLICITOR

Ms J Wright,

RESPONDENT

Mr J Phillips of Counsel

CASES CITED: Browne v Commissioner for Railways (1935) 36 SR(NSW) 21

Australian Workers' Union v Stegbar Australia Pty Ltd [2001] FCA 367 (5/4/01)

Downey v Pryor (1960) 103 CLR 353

Van Huisstede v Commissioner of Police (2000) 98 IR 57

Ellis v Minister of Lands (1985) 37 NTR 29

Riverwood International Australia v McCormick (2000) 177 ALR 193

Director General of Education v Suttling (1986) 162 CLR 427

Mathieson v Burton (1971) 124 CLR 1

Pastrycooks Employees, Biscuit Makers Employees & Four and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70.

Scharmann v APIA Club Ltd (1983) 6 IR 157

Re BHP Co Pty Ltd; Re Jones [1961] AR(NSW) 48 at 66-7;

Amalgamated Metal Workers Union v Electricity Commission (NSW) (1989) 28 IR 155 at 177

O’Brien and Linfox Limited [2001] NSWIRComm 1048 (25/7/02)

LEGISLATION CITED: Industrial Relations Act 1996

Electricity (Pacific Power) Act 1950

Energy Services Corporations Act 1995

State Owned Corporations Act 1989

Subordinate Legislation Act 1989

Interpretation Act 1987

Landlord and Tenant (Amendment) Act 1948 (NSW

JUDGMENT:

- 4 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Friday, 7 February 2003

Matter No IRC 257 of 2002

Notification under s130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with Macquarie Generation re suspension of PSA delegate

DECISION

[2003] NSWIRComm 9

1    The notification in this matter was filed pursuant to s130 of Industrial Relations Act 1996 (‘the IR Act’) by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) on 17 January 2002. The matter was first subject to compulsory conference proceedings on 8 February 2002 which resulted in a recommendation for a review of the issues and procedures giving rise to the present dispute pending further conciliation proceedings on 25 February 2002.

2    On 25 February 2002 it was established that the matter could not be resolved by conciliation and directions were issued to bring the matter to hearing on 7 and 8 May 2002.

3    On 2 May 2002 the PSA filed Particulars of Small Claim under s380 of the Act in the prescribed form seeking payment by Macquarie Generation to Mr Shane Delforce of the gross amount of $793.20, which the PSA contends is payable to Mr Delforce pursuant to clause 3.4 of the Macquarie Generation Employees (State) Award 1999 317 IG 904 (‘the award’).

4    The particulars of claim further state that the amount sought is calculated on the basis of the ordinary pay that Mr Delforce was entitled to receive in respect of two ten hour shifts falling on 17 and 18 January 2002. Mr Delforce was rostered to work those shifts in the capacity of Power Station Technician (PST) but was subject to a disciplinary suspension on both days as a result of events occurring on 16 November 2001.

5    The penalty of two days suspension was imposed by Macquarie Generation subsequent to a finding of misconduct specified in the following terms:

(i) On 16 November 2001 Mr Delforce was unable to be located or contacted while on duty during the hours of 11.00 pm and 12.15 am with no acceptable explanation.

(ii) On 16 November 2001 Mr Delforce acted in an aggressive and insubordinate manner and refused to meet with Station Management when requested to do so on that evening.

6    The Particulars of Small Claim state:

(v) Mr Delforce denies the allegations set out above.

(vi) The Respondent had no power to suspend Mr Delforce, with or without pay or at all, and whether under s 66 of the Electricity (Pacific Power) Act 1950 (NSW) or otherwise.

(vii) Further and in the alternative, Mr Delforce was not guilty of any misconduct or of contravening any regulation made under the Electricity (Pacific Power) Act 1950, or any rule or direction of the Respondent such that would empower the Respondent to suspend him under s 66 of the Electricity (Pacific Power) Act 1950 or otherwise.

(viii) In any event, the Respondent's decision to suspend Mr Delforce was too harsh in all the circumstances having regard to the Respondent's own disciplinary policy, the employment record of Mr Delforce, his role and responsibilities as a workplace delegate for the Applicant and the principles of industrial justice.

(ix) ... ... in so suspending Mr Delforce, the Respondent contravened its obligation to pay Mr Delforce his wages on 17 and 18 January, 2002 pursuant to the Macquarie Generation Employees (State) Award 1999.

7    Mr Delforce is also charged with leaving Bayswater without being released from duty, which Macquarie Generation categorise as a breach of operational protocol. Mr Delforce has been issued a formal written warning in respect to this aspect. The PSA seeks removal of the written warning from Mr Delforce’s record.

8    Arbitration proceedings commenced as scheduled on 7 May 2002 and continued on 8 May 2002. In the event, these dates proved insufficient to complete proceedings, the matter requiring a further three days of hearing which took place on 13 and 14 June and 14 July 2002.

9    Mr D Chin of Counsel, instructed by Ms J Wright, Solicitor of Jones and Staff, appeared on behalf of the PSA. Mr J Phillips of Counsel appeared on behalf of Macquarie Generation with Mr K Petersen and Mr K Scott.

10    Mr Chin brought evidence from :

· Mr Shane Delforce, employed by Macquarie Generation in the classification of Engineering Officer, Power Station Technician, and at all material times a workplace delegate of the PSA at Bayswater Power Station (“Bayswater”).

· Mr W Shaw, employed by Macquarie Generation as a Power Station Technician Assistant, assisting the PST and in particular Mr Delforce on the relevant occasion.

· Mr S Palfrey, employed by Macquarie Generation as a Generation Controller at Bayswater, and at the material time a job delegate of the Construction, Forestry, Mining and Energy Union (New South Wales Branch) (CFMEU).

11    Mr Phillips brought evidence from:

· Mr M Carwardine, employed by Macquarie Generation at Bayswater from 1984 and at the relevant time in the position of Engineer, Station Plant Electrical.

· Mr W Tillitzki, employed by Macquarie Generation at Bayswater since 1989 in the capacity of Shift Manager, having joined the Electricity Commission of New South Wales (“Elcom”) in 1971.

· Mr T Stubbs, employed by Macquarie Generation at Bayswater since 1984 and presently engaged in the position of Performance and Plant Engineer; in that capacity responsible for the work of PST’s including Mr Delforce.

· Mr P Sewell, employed by Macquarie Generation at Bayswater since 1997, currently in the capacity of Production Manager.

12    The basic arguments advanced on behalf of Mr Delforce are that he is not guilty of any misconduct; and that Macquarie Generation has no authority to impose a disciplinary stand down. Both contentions are vigorously contested by Macquarie Generation.

13    Mr Chin submits that any right to disciplinary suspension is contingent upon an employee being guilty of misconduct or of contravening any regulation made in the Electricity (Pacific Power) Act 1950 (“the Pacific Power Act”) or any rule or direction of the Commission; and until a finding of fact is made that a specific employee is guilty of misconduct or relevant contravention, the right to suspend subsists only in an abstract sense.

14    This submission is irrefutable, and accordingly it is first appropriate to consider the extent of misconduct prior to that of the authority to suspend also argued in these proceedings.

FACTUAL BACKGROUND

15    PST’s had been in dispute with management of Macquarie Generation concerning a number of issues which were subject to dispute notifications pursuant to the IR Act.

16    On Friday, 16 November 2001 Unit 1 at Bayswater, which had been out of service for maintenance since 19 October 2001, was being readied for return to service in order to meet commercial load generation by Monday, 19 November 2001. Mr Delforce was rostered to work the afternoon shift from 3.00 pm to 1.00 am on the evening of 16 November 2001.

17    The work of a PST in repairing known defects and defects arising in the re-commissioning process is essential to the return to service program. The rostered PST is also required to respond to urgent defect work on operational units.

18    The evidence of Mr Sewell is that he left Bayswater at 6.00 pm on the afternoon of 16 November 2001 on the understanding that there were no impediments to operational units or the return to service of Unit 1.

19    Mr Sewell deposed that in a telephone discussion at approximately 6.20 pm with the Shift Manager, Mr Tillitzki, wherein operational and outage issues were discussed, there was no suggestion or knowledge of any difficulties with PST’s.

20    Mr Sewell’s evidence is that at approximately 8.20pm he received a telephone call at his home from Mr Tillitzki advising that he had been informed by Mr Delforce that Bayswater PST’s had applied bans to all work on Unit 1 and all overtime work, causing immediate delay to the return to service program, and subsequently delay throughout Saturday, 17 and Sunday, 18 November 2001 by refusal to work overtime.

21    Mr Sewell’s evidence is that he was aware that there had been a stop work meeting by PST’s earlier in the week and further meetings held by Controls Section Management concerning industrial issues resulting in assurances from the PST’s that no bans or limitations were in place.

22    Mr Sewell’s evidence is that subsequent to discussion with the Power Station Manager concerning the potential delay to return to service of Unit 1, and subsequent delay to withdrawal of Unit 2 from service for repair of a known tube leak, he set out from his home to Bayswater with the intention of seeking removal of the bans and facilitation of industrial dispute procedures. Mr Sewell collected Mr Stubbs on the way, arriving together at approximately 10.50 pm.

23    Mr Sewell’s evidence is that in the course of the journey from his home to Bayswater he telephoned Mr Tillitzki to inform him of his pending arrival with the express purpose of meeting with Mr Delforce, and requested Mr Tillitzki to inform Mr Delforce accordingly.

24    Mr Sewell’s evidence is that shortly after arrival at Bayswater he received a telephone call from Mr Tillitzki advising that he was unable to locate Mr Delforce. Mr Tillitzki was requested to have operators on all units checked whether Mr Delforce was working for them. This enquiry revealed that no operators were aware of Mr Delforce’s location.

25    At approximately 11.30 pm Mr Stubbs and Mr Tillitzki attended the technician’s workshop and were informed by the Station Plant Technician, a Mr Holman, and his assistant that Mr Delforce and his assistant, Mr Shaw, had “been in and out of the workshop throughout the shift”. Mr Holman was requested to inform Mr Delforce of the requirement by Mr Sewell that he attend a discussion. Station Plant Technicians were not involved in the industrial issue or bans imposed.

26    At 11.45 pm a further check of all units was undertaken without locating Mr Delforce, resulting in a search of the power station from 12.10am as concern for Mr Delforce’s safety was now growing. Mr Delforce was located in the technician’s workshop at 12.15 am and requested to attend a meeting with management. Mr Sewell’s evidence is that Mr Delforce initially refused, then agreed subject to a witness attending with him. Mr Shaw was invited to attend but declined on the basis that he was not a member of the same union as Mr Delforce and that assistants were not involved in the dispute and he did not wish to become personally involved.

27    Mr Delforce then requested attendance of Mr Palfrey, which Mr Sewell refused on the basis that the issues concerned did not involve operators and he did not want to risk extension of the dispute thereto.

28    Mr Sewell’s evidence is that at 12.23 am he requested Mr Tillitzki to direct Mr Delforce to attend a meeting in the administration building and to bring with him the rostered Station Plant Technician or a Technician’s Assistant as a witness. Messrs Tillitzki and Stubbs went to the workshop at 12.45 am to convey this direction. Mr Sewell’s evidence is that it was reported to him by Messrs Tillitzki and Stubbs that Mr Delforce refused this direction in a very aggressive tone and subsequently left the power station.

29    The evidence of Mr Tillitzki supports that of Mr Sewell and confirms that the nature of work performed by PST’s necessitates that they be easily contactable. Mr Tillitzki deposed that PST’s are able to be contacted by radio and by telephone in the workshop, and by mobile radios when working outside the workshop.

30    Mr Tillitzki confirmed that the work of PST’s is vital to return to service of a unit as controls need immediate adjustment, commonly requiring overtime in the final stages of return to service due to continuous sequencing of the process. Mr Tillitzki further confirmed the paramount importance that the operator of any unit be informed when a PST is working on the controls of that unit.

31    Mr Stubbs’ evidence further supports that of Mr Sewell.

32    Mr Stubbs gave evidence of two requests put directly to Mr Delforce that he attend a meeting with management. Mr Stubbs deposed that at approximately 12.13 am he encountered Mr Delforce moving from the meal room to the Technician’s workshop. Mr Stubbs’ evidence is that Mr Delforce did not appear surprised to see him and made comment to the effect of “Management having brought the bans [on Unit 1] on themselves”.

33    Mr Stubbs’ evidence is that he requested Mr Delforce attend a meeting with the Production Manager, confirming that he could bring his assistant, Mr Shaw, with him as a witness. Mr Delforce declined to have Mr Shaw as a witness and Mr Stubbs then suggested Mr Holman. Mr Delforce also declined to have Mr Holman as a witness, insisting on having a second PST and refusing to attend by himself. Mr Stubbs confirmed that the subsequent request by Mr Delforce to have Mr Palfrey as a witness was refused by management.

34    Mr Stubbs’ evidence is that he returned to the workshop at approximately 12.42 am to direct Mr Delforce to attend a meeting with the Production Manager and that Mr Delforce responded in the negative, saying that the Production Manager could “shove his meeting” and that he was going to have a shower and go home. Mr Stubbs informed Mr Delforce that he was not released from duty and was required to attend the meeting.

35    Mr Stubb’s evidence is that he conveyed this to Mr Sewell who required that he and Mr Tillitzki make a further attempt to have Mr Delforce engage in discussion. Mr Stubbs deposed that he and Mr Tillitzki waited adjacent to the power station exit gate and that he spoke to Mr Delforce as he was making his way to the turnstile, however, Mr Delforce refused to stop and talk to him though reiterated that he would not attend.

36    Mr Stubbs’ evidence is that on the three occasions he spoke directly to Mr Delforce he regarded Mr Delforce to behave in an offensive manner towards him, conveyed in the tone of voice, the language used and the aggressive nature of delivery. Mr Stubbs described Mr Delforce’s attitude as “vitriolic” towards him.

37    Mr Stubbs gave further evidence of discussions with Mr Delforce on the evening of Saturday, 17 November 2001. Mr Stubbs’ evidence is that on the second of these occasions he entered the Technician’s meal room to observe Mr Delforce making a hasty exit through another door. Mr Stubbs put that he called out to Mr Delforce who returned and engaged in a discussion concerning the industrial situation.

38    Mr Stubbs gave extensive evidence concerning his investigation in to the work undertaken by PST’s and in particular Mr Delforce on 16 November 2001; and formal interviews with Mr Delforce in which he was requested to explain his conduct in regard to three particular allegations. The allegations being those subject to consideration in these proceedings and a further allegation that he left the power station contrary to a directive (from Mr Stubbs) that he had not been released from duty. This later allegation was not pursued and did not form any part of consideration by management leading to the decision to impose a disciplinary suspension on Mr Delforce.

39    The evidence of Mr Delforce is set out in two statements, the first (Ex 4) filed on 12 April 2002, and the second (Ex 5) sworn in May 2002, introduced during the course of earlier evidence on 7 May 2002.

40    In exhibit 4 Mr Delforce deposed that PST’s are regularly rostered to work 10 hours per shift. His evidence is that in a given working week of seven days, there are usually eight PST’s working, divided into two groups of four, each group working different days depending upon the roster. Three of the four PST’s are on morning shift from 6.30 am to 4.30 pm and the fourth works from 3.00 pm to 1.00 am. Coverage between 1.00 am and 6.30am is by overtime as required.

41    As noted earlier, Mr Delforce was the rostered PST on the afternoon shift of 16 November 2001. Mr Delforce’s evidence is that on that evening the PST’s had resolved to engage in industrial action in response to management’s treatment of their concerns regarding an ongoing annualised salary dispute and the Supervising Technician’s position. Mr Delforce deposed that as he was the only person on duty that evening it fell to him to inform management and he so advised Mr Tillitzki of the bans at approximately 8.00 pm.

42    Mr Phillips challenged the process of resolution by PST’s, contending that the imposition of the bans was a unilateral action undertaken by Mr Delforce on his own initiative.

43    Mr Delforce denied this allegation, deposing that he consulted with other PST’s at change of shift and subsequently by telephone with those rostered off. Mr Delforce deposed that this was not an unusual process of consultation and decision making by the PST’s, given the difficulty of assembling a meeting of all PST’s, a difficulty arising from the roster arrangements.

44    Mr Delforce deposed that he spoke with Mr Dunhill and Mr Walsh at change of shift. It is unclear whether the three met together, or Mr Delforce spoke to them separately.

45    An examination of telephone records (Ex 29) compared to the records of telephone numbers of PST’s suggests that Mr Delforce could have made contact with Messrs Boland, Sandy and Olrick on the evening of 16 November 2001. Mr Delforce deposed that he had also spoken with Mr Vardenega, the acting Supervisor Technician, however Mr Vardenega was not involved in the ban in any way. Mr Delforce could not reveal specific details of the discussions and could not attest to certainty whether he in fact spoke with all named technicians or made unsuccessful attempts.

46    Mr Delforce made no record of the vote or the position adopted by each of the technicians.

47    Mr Delforce’s evidence is that he went about his duties in the usual manner, other than those precluded by the ban. He deposed that he did not make himself deliberately unavailable during the course of the evening, putting that he carried a two way radio whenever he left the workshop. Mr Delforce’s evidence is that he heard no radio traffic concerning his whereabouts, adding that there are parts of the power station which have black spots where it is not possible to make two way radio contact.

48    Mr Delforce further deposed that there are also high noise areas where it is difficult to hear a two way radio and that it is possible, whilst carrying the radio in his pocket, that the volume may have been inadvertently turned down or the frequency accidentally altered, precluding contact.

49    Mr Delforce deposed that it is unusual to receive a call on the two way radio, putting that for a technician it is not necessary, as the person seeking contact would telephone the workshop and, if necessary, call back later.

50    Mr Delforce deposed that he was surprised that Messrs Sewell and Stubbs decided that 11.00pm was an appropriate time for a meeting; and that he failed to understand why they could not have come earlier in the evening or contacted him earlier to arrange a meeting and witness.

51    Mr Delforce deposed that on his return to the workshop at approximately 12.00am, he found that no messages had been left for him. Mr Delforce confirmed that at approximately 12.15am he was approached by Mr Stubbs who informed him that Messrs Sewell, Tillitzki and Stubbs wished to meet with him; and that he declined, with words to the effect, “I am not going to meet with three members of management alone”.

52    Mr Delforce’s evidence is that on Mr Stubbs’ emphasis of the importance of the issue, he agreed to find a witness in an attempt to co-operate with the request. Mr Delforce deposed that Messrs Shaw and Holman declined and Mr Palfrey was willing, subject to release by his Shift Manager. That release was neither available nor appropriate on the basis that the issues were not operator issues.

53    Mr Delforce’s evidence is that at 12.45am Messrs Stubbs and Tillitzki returned to the workshop, insisting that he attend the meeting. Mr Delforce describes the exchange at paras 17 and 18 of exhibit 4 in the following terms:

17. At approximately 12.45 a.m., Mr Stubbs and Mr Tillitzki came back to my workshop and Mr Stubbs said:

“You must attend a meeting with us straight away. You can bring your TA as a witness.”

18. I said to Mr Stubbs and Mr Tillitzki:

“You have refused me the right to have my selected witness and union delegate present. It is now the end of my shift and you have missed your opportunity to meet with me. There will be two technicians in on day work at 6.30. You can meet with them then. I am going home.”

Mr Stubbs then said:

“You have not been released from duty and you cannot leave.”

54    Mr Delforce denies that he behaved in an aggressive or insubordinate manner.

55    Mr Delforce deposed that he was due to start his next shift at 3.00 pm the next day, 17 November 2002. The bans were lifted at approximately 7.30 pm that evening and he worked overtime that night.

56    Mr Delforce’s evidence is that on 22 November 2001 he received a memorandum from Mr Neely, the Power Station Manager, requesting his comments in respect to the events of 16 November 2001. Mr Delforce declined on the basis that the issues were then before the Commission as presently constituted. Mr Delforce’s evidence is that subsequent to proceedings in respect to those matters on 5 December 2001, he complied with a recommendation of the Commission that he provide a response as requested, doing so on 9 December 2001 (annex D to Ex 4).

57    The outcome of the disciplinary process was the suspension of Mr Delforce on 17 January 2002, the subject of these proceedings. Mr Delforce’s evidence is that he was advised of these circumstances in writing on 16 January 2002. His response was to invoke the disputes avoidance procedure (DAP) as he was unaware of any alternative appeal mechanism. Mr Delforce’s evidence is that he received the information from Mr Stubbs, conveyed by his supervisor, Mr Walsh, that the DAP did not apply in disciplinary matters.

58    The matter was subsequently taken up by the PSA in the instant proceedings.

59    Mr Delforce’s evidence is that he was informed that he is not suitable to act in higher grade duties since being found guilty of misconduct. He deposed that he has acted in higher grade positions in the past, and that he was concerned that findings made against him will impact on promotional opportunities in the future.

60    Mr Delforce deposed that throughout his employment he had never been charged with misconduct, nor received any disciplinary action with the exception of a letter of warning following an accusation of a breach of Macquarie Generation’s computer policy.

61    Mr Delforce further deposed that he had been a PSA workplace delegate for more than 10 years and that during the entire time he had never known a Macquarie Generation employee to be suspended without pay in relation to a disciplinary action.

62    The evidence of Mr Carwardine (Ex 14) details his involvement in a review of two way radio operation within Bayswater, the improvement of equipment and transmission facilities. Mr Carwardine conceded that there had been black spots which had been subject to report and discussion by a consultative process, and in his view all known black spots had been rectified by 16 November 2001.

63    In his evidence in response (Ex 5) Mr Delforce refuted this assertion and offered the further explanations of flat batteries, noisy environment, volume control accident, and incorrect use by the operator, resulting in the call not being sent.

64    Mr Delforce deposed that it is his practice to turn off his radio whilst in equipment rooms as two way communication is not permitted therein, a process which may have caused the channel selector to accidentally alter frequency; or he may have forgotten to turn the radio back on; or that the call may have occurred whilst he was in Unit 4 equipment room with the radio turned off.

65    There is conjecture as to Mr Delforce’s employment record, management contending that there are issues in contention as to the improper use of the computer system.

66    These issues are not relevant to current consideration and accordingly it is not necessary to explore them. The issue of misuse of the computer system concerns unauthorised access to personnel related files kept by Mr Delforce; and the monitoring of computer material of other users, disregarding the right to privacy of others.

67    An official written warning was issued to Mr Delforce on 11 June 1999 by Mr Neely. Whilst acknowledging this event, Mr Delforce did not regard it as serious.

SUBMISSIONS AS TO CONDUCT

68    Mr Chin submits that the onus to prove misconduct lies upon the respondent, see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70. Mr Chin submits that Macquarie Generation has failed to discharge the onus of proof.

69    Mr Chin relies upon Scharmann v APIA Club Ltd (1983) 6 IR 157 to support the argument that any power to suspend is not intended to enlarge the circumstances in which an employer may take action to punish an employee, but rather to provide an alternative sanction to dismissal in circumstances where dismissal would otherwise be justified.

70    Mr Chin submits that the conduct attributed to Mr Delforce, if proven, could not justify dismissal, and accordingly not invoke the alternative of disciplinary suspension.

71    Mr Chin contends that Mr Delforce was at all material times a workplace delegate of the PSA and that the Commission should protect the legitimate activities of union delegates, putting that the Commission should look critically at the disciplinary measure to ensure that such measure is not influenced by actions in the role of delegate. Mr Chin relies on Re BHP Co Pty Ltd; Re Jones [1961] AR(NSW) 48 at 66-7; and Amalgamated Metal Workers Union v Electricity Commission (NSW) (1989) 28 IR 155 to support this argument. In AMWU v Elcom, the Full Bench (Fisher P, Varnum DP, Hill J, Harrison CC) adopted the observations in BHP and Jones at p177:

We adopt, with respect, the following observations in that case relating to the giving of anxious consideration and concern to the question of disciplinary action taken against delegates:

"Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union. It is basic to our system that employees should be organised in industrial unions and it is through such unions that approach must be made to the tribunals set up. Men who are willing to play a part in the affairs of an industrial union are entitled to expect that they will not be prejudiced in their employment because of any legitimate actions they take in any union office they assume. Indeed, it is an offence under s 95 of the Industrial Arbitration Act for any employer to dismiss an employee or injure him in his employment or alter his position to his prejudice by reason of the fact that the employee is an officer, delegate or member of a trade or industrial union. But, while this Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions. The provisions of the award conferring rights on a delegate have been quoted earlier. The right to recognition and to be allowed time to interview the company or its representative in the working hours is a valuable one, but it carries with it corresponding responsibilities. These have been referred to by the Commission on a number of occasions. An award confers rights on a delegate on the footing that the delegate will act in conformity with the responsibilities which his union has elected him to bear by virtue of obtaining registration as an industrial union. These responsibilities include the obligation to have industrial disputes settled by resort to constitutional processes and not by direct action or job control." (ibid at 66, 67.)

72    Mr Chin further relies upon s 210(1)(a) of the IR Act which prohibits victimisation of an employee on the basis of union membership or involvement therein, arguing that the Commission could not be satisfied that Macquarie Generation’s decision to suspend Mr Delforce was not tainted by considerations arising from his legitimate actions as a union delegate.

73    Mr Chin submits that the argument that Mr Delforce could not be contacted and had no acceptable explanation in respect thereto is simply not made out. Mr Chin submits that there is no direct evidence that any attempt to contact Mr Delforce by radio was made at all between the hours of 11.00 pm and 12.15 am on the evening in question, the evidence going no further than that of Mr Stubbs and Mr Sewell instructing the Unit 4 controller to do so and a reply to Mr Sewell from the Unit 4 controller that there was no response to a radio call.

74    Mr Chin submits that the allegations concerning aggression and insubordination are not made out on the evidence and that the warning given to Mr Delforce in this regard should be removed from his record.

75    Mr Chin makes a secondary submission that, should the Commission find that Mr Delforce did act aggressively, such alleged behaviour was mild and, having regard to the findings of Connor C in O’Brien and Linfox Limited [2001] NSWIRComm 1048 (25/7/02), there is no basis for sanction of Mr Delforce who in all the circumstances was carrying out his legitimate functions as a PSA delegate.

76    Mr Phillips submits that Mr Delforce’s actions are condemned on the evidence which, subject to the appropriate analysis on the balance of probabilities, proves that Mr Delforce is guilty of the misconduct with which he has been charged. Mr Phillips contends that none of the evidence supports an allegation that Macquarie Generation’s treatment of Mr Delforce had anything to do with his role as a union delegate; nor is there any notion of victimisation because of his role as a union delegate found in the circumstances of this matter.

77    Mr Phillips relies on the clear evidence that a fundamental requirement of a PST is to be contactable throughout the shift, which he put is of paramount importance in ordinary operating circumstances. Mr Phillips submits that there is no credible or believable explanation as to why Mr Delforce did not make the relevant unit controller aware of his whereabouts whilst working on a particular unit.

78    Mr Phillips submits that the evidence clearly supports the charge that Mr Delforce acted in an aggressive and insubordinate manner by refusing to meet with management, noting particularly that at p112 of transcript Mr Delforce’s admits telling Mr Stubbs that he could “shove his meeting”; and that his manner was clearly aggressive, insubordinate and rude.

79    Mr Phillips relies upon Mr Delforce’s evidence at p115 of transcript where he concedes that he was irritated, and at p116 where he concedes his temper was raised by Mr Stubbs’ refusal to permit him to have a union delegate as a witness, admitting that he calmed down a few days later but had still not made an apology to Mr Stubbs for being rude to him during the conversation of 16 November 2002. Mr Phillips refers to evidence of Mr Delforce at p117 of transcript where he deposed that he regretted the words he used to Mr Stubbs and, although in hindsight it may have been wise for him to apologise, he has not done so.

80    Mr Phillips refers further to evidence of Mr Delforce at p119 of transcript where he concedes that he raised his voice to Mr Stubbs, though contending that he spoke assertively rather than aggressively.

81    Mr Phillips submits that the determination of Connor C in O’Brien is not relevant to these proceedings.

82    Mr Phillips submits that Mr Delforce should not be regarded as a witness of credit. Mr Phillips puts that the evidence in chief from Mr Delforce that throughout his employment he had not been charged with misconduct nor had he received any disciplinary action with the exception of receiving a letter of warning when accused of breaching Macquarie Generation’s computer policy did not stand the test of cross examination. Mr Delforce was obliged to concede that there had been other issues of misconduct and disciplinary action involving insubordinate and aggressive communications issuing from Mr Delforce.

83    Mr Phillips submits that:

The overall circumstances of the case have been referred to earlier in these submissions. Aspects of Mr Delforce’s evidence are clearly unsatisfactory and if there be any areas of doubt as to who is to be believed between Mr Delforce and witnesses called by the Respondent, it is respectfully suggested that Mr Delforce’s evidence should not be preferred. Further, on account of Mr Delforce’s lack of credibility, it also detracts against him in an overall sense on the basis that he has not been fully frank either with the respondent but more seriously with the Industrial Relations Commission. His record clearly also is a matter which can be taken into account by the Commission in exercising any discretion regarding severity of penalty. Also the evidence as to whether Mr Delforce was frank about the timing of the wild cat strike on a Friday evening lacks plausibility.

... ...

Based upon the foregoing, and based upon Mr Delforce’s disciplinary record, the two day suspension in all the circumstances is appropriate and it is respectfully submitted should stand.

CONSIDERATION OF CONDUCT

84    The evidence leads to an inescapable conclusion that Mr Delforce initiated the ban on critical work at Bayswater, designed in both form and timing to create maximum inconvenience to management.

85    The so-called “consultation” with other PST’s was primarily one on one between Mr Delforce and other PST’s. It is not possible to determine exactly who and how many of the other PST’s were involved in these discussions, though the evidence is clear that not all were involved. None of the PST’s said to have been involved were brought to give evidence of their involvement, the nature of their discussions or the role played by Mr Delforce in agitating the imposition of the ban.

86    It is significant that the ban was imposed shortly after undertakings were given to management that no industrial action was afoot. It is further significant that the issues of contention said to be behind the ban were then subject to live proceedings before this Commission.

87    I am not able to accept the evidence of Mr Delforce as to the fallibility of radio communication at Bayswater or the circumstances which may have inadvertently led to a difficulty in contacting him.

88    The appropriate standard of proof is the balance of probabilities. That test applied, no other conclusion is available other than that Mr Delforce deliberately made himself difficult to contact in order to avoid his responsibility as a union representative, in the same or similar manner as he had ignored his obligations to comply with the dispute settlement procedure prescribed by the award; the same procedure in which he took immediate refuge once advised of the instant suspension.

89    There is no doubt that Mr Delforce’s conduct justified sanction.

90    The argument advanced by Mr Chin that Mr Delforce was at all times carrying out the legitimate activities of a trade union official is not sustained on the evidence. The activities undertaken by Mr Delforce, purported to be those of a union representative, were not legitimate actions and were contrary to his obligations pursuant to the legislation and award; contrary to the principles of appropriate conduct and fair dealing; and, on any analysis, not in the best interests of the membership he purported to represent.

91    As stated in BHP v Jones and adopted by a Full Bench in AMWU v Elcom, the role of union delegate provides no magic cloak of immunity or special consideration; if anything, the role of union delegate, whilst providing certain rights by legislation and award, carries with it an obligation of responsible leadership and mature conduct absent in the events of 16 November 2001.

92    In all of the circumstances I regard the imposition of a two day suspension as lenient, demonstrating commendable restraint and clearly an alternative adopted by management to that of termination of employment.

93    I decline to intervene in the warning issued to Mr Delforce in respect to his departure from the site on the evening of 16 November 2001.

94    This is an example of further inappropriate conduct. Mr Delforce would do well to heed the warning and examine his approach and demeanour in the workplace. His conduct conveys a disturbing resentment for authority, a resentment directed personally to those in management representative of that authority, and an inability to comprehend notions of cooperation and communication.

VALIDITY OF SUSPENSION

95    Mr Chin challenges the validity of disciplinary suspension imposed pursuant to s 66 of the Pacific Power Act, which provides:

66 Employees guilty of misconduct

(1) Where an employee of the Commission is guilty of misconduct or of contravening any regulation made under this Act, or any rule or direction of the Commission, the employee may in accordance with the regulations:

(a) be dismissed or suspended,

(b) be fined a sum not exceeding 0.1 penalty unit,

(c) be reduced in rank, position, or grade and pay,

but every such employee so dealt with shall be notified in writing of the nature of the misconduct charged or of the breach of regulation, rule or direction alleged to have been committed.

96    Mr Chin established by reference to a Decision of the NSW Supreme Court of Appeal in Browne v Commissioner for Railways (1935) 36 SR(NSW) 21 and other authorities Devonald v Rosser and Sons [1906] 2KB 728; Hanley v Pease and Partners Ltd [1915] 1KB 698; Colpitts v Australian Telecommunications Commission & Anor (1986) 20 IR 184; Van Huisstede v Commissioner of Police (2000) 98 IR 57; State Transit Authority of New South Wales v Seamen’s Union of Australia (New South Wales Branch (1994) 53 IR 349; Director General of Education v Suttling (1986) 162 CLR 427. that there is no common law right to suspension of employees. The principles adduced from these authorities is conveniently put by Finkelstein J of the Federal Court of Australia in Australian Workers' Union v Stegbar Australia Pty Ltd [2001] FCA 367 (5/4/01) in the following terms:

“... under the common law, in the case of threatened misconduct, an employer has no right to suspend an employee without pay. The employer may dismiss the employee, or it must permit the employee to carry out his duties, albeit otherwise than in performance of his obligations. In Hanley v Pease & Partners Ltd [1915] 1 KB 698 at 705 Lush J said:

“[a]fter declining to dismiss the workman - after electing to treat the contract as a continuing one - the employers took upon themselves to suspend him for one day; in other words to deprive the workman of his wages for one day, thereby assessing their own damages for the servant’s misconduct at the sum which would be represented by one day’s wages. They have no possible right to do that. Having elected to treat the contract as continuing it was continuing. They might have had a right to claim damages against their servant, but they could not justify their act in suspending the workman for one day and refusing to let him work and earn wages.”

A right to suspend or stand down an employee without pay may be granted by contract (Warburton v Taff Vale Railway (1902) 18 TLR 420), including by a term implied by custom or usage (Marshall v English Electric Co Ltd [1945] 1 AllER 653) or by statute (Browne v Commissioner for Railways (1935) 36 (SR)NSW 21). But no such right has been asserted here.

97    Mr Chin put that power to impose disciplinary suspension is not conferred upon Macquarie Generation by the Pacific Power Act; and if it were found that such statutory authority did exist, Macquarie Generation are unable to exercise such authority due to the absence of regulations.

98    Mr Chin put that on the authorities a power to impose a disciplinary suspension must be grounded in the contract of employment, an award, or by statute.

99    Mr Chin commenced his attack on statutory authority to impose disciplinary stand down by reference to s 4 of the Pacific Power Act which states:

4 Application of Act to electricity generators

An electricity generator within the meaning of the Energy Services Corporations Act 1995, for the purpose only of enabling it to exercise its functions under that Act, may exercise the functions conferred or imposed on Pacific Power by this Act (except section 8B) and, for that purpose, a reference in this Act to Pacific Power extends to an electricity generator within the meaning of that Act.

100    This provision specifically applies the Pacific Power Act to Macquarie Generation as an electricity generator.

101    The gravamen of Mr Chin’s argument is that the functions of a generator within the meaning of the Energy Services Corporations Act 1995 (“the Energy Services Act”) did not include the disciplinary suspension of employees.

102    Mr Chin traces carefully the provisions of the Energy Services Act and the definitions of functions of electricity generators therein, making a distinction between a “function” and “powers”, “authorities” and “duties”.

103    Mr Chin argues that the definition found in s 3(2)(a) and (b) of the Pacific Power Act that:

(a) a function includes a reference to a power, authority and duty, and

(b) the exercise of a function includes, where that function is a duty, a reference to the performance of that duty

is limited to Part 2 of Schedules 6 and 7 of the Pacific Power Act and cannot be relied upon to connect functions, powers and authorities elsewhere.

104    In further developing his argument, Mr Chin addressed the differentiation between “power” and “function” at points 26 and 27 of his written submissions (Ex 35) in the following terms:

. .

26. The power to suspend employees for misconduct cannot be said to be necessary to enable the Respondent to establish, maintain and operate facilities for the generation of electricity and other forms of energy, or to supply electricity and other forms of energy to other persons and bodies (or to provide incidental services or to conduct other businesses) pursuant to s 6 of the Energy Services Act.

27. This proposition may be contrasted with the function of appointing and employing employees at will pursuant to s 64 of the Pacific Power Act which may be regarded as necessary to enable Pacific Power, and thus the Respondent, to perform its statutory functions. That is, while the Respondent may require the ability to appoint and employ employees, and to dismiss them for misconduct, in order to conduct a viable business generating and supplying electricity, the same may not be said for the use of suspension without pay as a disciplinary measure.

105    In approaching the issue of lack of regulation, Mr Chin’s analysis commences with s 65 of the Pacific Power Act, which provides:

65 Regulations re employees

The regulations may make provision;

(a) for and in relation to the control and governance of employees by the Commission, and

(b) for and in relation to any other matter or thing necessary or convenient to ensure the maintenance of discipline and efficiency in the service of the Commission.

106    Mr Chin contends that this is further supported in Part 8, Miscellaneous and general of the Pacific Power Act, which provides at s 87:

87 Regulations

(1) The Governor may make regulations not inconsistent with this Act, prescribing all matters which are by this Act required or permitted to be prescribed by regulations and in particular in relation to the following matters:

(a) any of the powers conferred on or duties imposed on the Governor or the Minister,

(b) the governance of the employees of the Commission, the regulation of their conditions of employment, and for their guidance in the execution of their duties,

(c) prescribing all matters relating to any superannuation scheme for employees of the Commission.

(d) (Repealed)

(2) The regulations may contain provisions of a savings or transitional nature consequential on a company becoming or ceasing to be a subsidiary company or on the delegation or the revocation or variation of a delegation of functions to a subsidiary company.

(3) Any such savings or transitional provision may, if the regulations so provide, take effect from a date that is earlier than the date of publication of the provision in the Gazette.

(4) To the extent to which any such savings or transitional provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State, an authority of the State or a subsidiary company), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State, an authority of the State or a subsidiary company) in respect of anything done or omitted to be done before the date of its publication.

107    Mr Chin’s argument is that there simply are no relevant regulations currently in force pursuant to the Pacific Power Act.

108    Mr Chin then relies upon earlier authorities, Browne v Commissioner for Railways and others.

109    Mr Chin submits that in the absence of regulation it is now open to the respondent employer to establish its own procedures as is the case in respect to court rules.

110    Mr Chin relies upon a judgment of Kitto J of the High Court of Australia in Downey v Pryor (1960) 103 CLR 353 at 362 wherein the distinction is made between an employer acting in the absence of regulations and statutory authority empowered to create its own procedure.

111    Mr Chin relies upon judgments in Van Huisstede v Commissioner of Police (2000) 98 IR 57 and other authorities Workcover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68; Colpitts v Australian Telecommunications Commission & Anor (1986) 20 IR 184 wherein these principles were adopted by this Commission.

112    Mr Chin put a further a submission that Macquarie Generation as a State owned corporation falls within the State Owned Corporations Act 1989 (‘the SOC Act”), putting that the SOC Act does not confer any power to suspend employees. Mr Chin’s submission is that a close examination of the SOC Act leads to the conclusion that the legislation does not have the effect of validating cause of the respondent for which there is no substantive power under the SOC Act or any other act; and accordingly Division 3 of Part 3 of the SOC Act does not assist the respondent in this matter due to the failure of s 66 of the Pacific Power Act to confer power to suspend.

113    Mr Chin further put that s 66 of the Pacific Power Act does not impose any express restrictions or prohibitions upon a power to suspend which it may be said the respondent contravened as contemplated by ss 20ZC(1) and 3(a) of the SOC Act.

114    Mr Chin submitted that Part 33, Disciplinary procedures of the Manual of Personnel, Policy and Procedures (“MOPPS”) of Elcom (Ex 21) does not purport to create a right to suspend employees that is independent of s66 of the Pacific Power Act; and accordingly is merely a derivative thereto and as such relies upon the existence of a valid statutory power. In the absence of the valid statutory power MOPPS confers no right to disciplinary suspension.

115    Mr Phillips submitted that Macquarie Generation held the power to impose a disciplinary suspension on Mr Delforce pursuant to his contract of employment and by statutory right conferred by s 66 of the Pacific Power Act.

116    Mr Phillips tendered a properly executed Appointment of Sub-Attorney (Ex 30) executed by Mr Grant Every-Burns, Chief Executive Officer of Macquarie Generation, appointing Mr John Neely, Manager Bayswater Power Station, as Sub-Attorney, specifically conferring:

“The Sub-Attorney has such of the powers and authorities conferred on the Attorney by the Power of Attorney as set out in the Schedule, ...

... ...

SCHEDULE

(a) From time to time it is necessary, in the management of personnel, to enact disciplinary procedures including those of suspension.

(b) Subject to paragraph (c) below, the Attorney may, in the Principal’s name or in his own name and as the Principal’s act to suspend any employee under his supervision or the supervision of those who report to him, from duties without payment for up to three (3) days.

(c) This delegation cannot be delegated to others.

(d) Use of this delegation is to be reported to the Chief Executive at the earliest opportunity.

117    In addressing the issue of the contract of employment Mr Phillips relies upon a letter of appointment provided to Mr Delforce when he was first engaged as an apprentice electrician with Elcom in November 1979, which states in part:

"Your appointment is made and your service with the Commission will be subject to the Electricity Commission Act, 1950, as amended, and the regulations and by-laws there under and, in particular, to the Seniority Code, directions and orders issued by or on behalf of the Commission from time to time relating to the employment or service of employees of the Commission insofar as such Seniority Code, rules, directions and orders relate to your case as a servant of the Commission, and to the terms of the Apprenticeship Indenture.

118    Mr Phillips submits that Mr Delforce’s employment was continuous with Elcom and its successors from this appointment.

119    Mr Phillips submits that at the time the contract of employment was created, relevant regulations were in force, having been published in Government Gazette No 48 of 19 March 1954, which, on observation, repeated the provisions of s 66 of the Pacific Power Act. Mr Phillips submits that these regulations were repealed by the Subordinate Legislation Act 1989 and in accordance with the provisions of s 10 thereof ceased in September 1992.

120    Mr Phillips submits that the rules, directions and orders issued by or on behalf of Elcom relating to employment or service thus also become terms and conditions of the contract of employment and include the provisions of MOPPS, which detail further the disciplinary options available inclusive of suspension without pay.

121    Mr Phillips submits that Macquarie Generation was created as a result of the Energy Services Act, Schedule 5 thereto dealing with transfer of staff, assets, rights and liabilities in the following terms:

3 Transfer of Staff, assets, rights and liabilities of Pacific Power

(1) The Minister may direct, by order in writing, that any specified staff, assets, rights or liabilities of Pacific Power be transferred to such Energy Services Corporation, or to such other person or body acting on behalf of the Crown, as is specified in the order.

(2) Such an order may be made on such terms and conditions as are specified in the order.

(3) Schedule 3 applies to the transfer of staff, assets, rights or liabilities under this clause. "

122    A reference then to Schedule 3 to the Act as it would affect Mr Delforce is found in section 2 in the following terms: :

"A member of staff who is transferred by a transfer to which this Schedule applies is, (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the staff not been transferred but remained a member of staff of the transferor.

123    Mr Phillips submits that the provisions of MOPPS continue as part of the contract of employment. Mr Phillips further submits that the statutory authority to suspend for disciplinary purposes is clearly continued from Elcom to Macquarie Generation notwithstanding the repeal of the 1954 Regulations by the Subordinate Legislation Act 1989.

124    Mr Phillips reinforces this argument by reference to s4 of the Pacific Power Act, submitting that it is not valid to distinguish between functions and powers in the manner advanced by Mr Chin. Mr Phillips argues that repeal of the Regulations by the Subordinate Legislation Act 1989 operated in a manner that could not affect any right, privilege, obligation or liability acquired or accrued or incurred under the Act or statutory rule. In this regard Mr Phillips relied upon s 30(1)(c) of the Interpretation Act 1987 (“the Interpretation Act”) which states:

30 Effect of Amendment or Repeal of Acts and Statutory Rules

(1) The amendment or repeal of an Act or statutory rule does not:

(c) effect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule”.

125    Mr Phillips refers to Ellis v Minister of Lands (1985) 37 NTR 29 to support this argument. Mr Phillips submits that:

One would have to say that in all circumstances, the lesser penalty of suspension was a right equally for Mr Delforce as it was a right for the employer, that is the Respondent. Consequently, any suggestion that the repeal of the regulation affected such a right cannot be correct.

126    Mr Chin refutes the assertion that the features of the contract of employment established by exhibit 7 continue throughout that employment. Mr Chin asserts that fresh, though continuous, contracts of employment were established on appointment past the electrical apprenticeship and that in any event, so far as the contract of employment is affected by legislation, it is amended as the legislation is amended.

127    Mr Chin relies upon the decision by North J in Riverwood International Australia v McCormick (2000) 177 ALR 193 at 214 for authority that any agreement which leaves the content of the agreement entirely at the discretion of one party is not contractual in nature. Mr Chin submits that this principle extends to a situation where the content of contract is left entirely at the discretion of a third party to the contract, in this case the legislature and/or the Executive of the State of New South Wales.

128    Mr Chin puts that consistent with the reasoning of North J in Riverwood any alteration or addition to Mr Delforce’s contract could only achieve binding contractual effect if there was separate agreement to such alterations or additions, either by way of variation to the existing agreement or by entering into a new agreement.

129    Mr Chin submits that there is no evidence before the Commission of any separate agreement between Mr Delforce and the respondent concerning the power to suspend.

130    Mr Chin submits that the reference in exhibit 7 to the Pacific Power Act “as amended” should be read “as amended from time to time”.

131    Mr Chin relies further upon the decision in Director General of Education v Suttling (1986) 162 CLR 427 wherein he put that it was established that employment contracts must be consistent with the terms of any governing statute to argue that, notwithstanding exhibit 7, the terms of the prevailing legislation must be those applicable.

132    Mr Chin refutes the application of MOPPS with the contract of employment, asserting that there was no evidence of any specific agreement between the respondent (or its predecessors) and Mr Delforce to import MOPPS into the terms of his post-apprenticeship and current contract of employment. Mr Chin further relies upon the evidence of Mr Delforce that, whilst he had known of the existence of MOPPS for some time, he had first received a copy in January 2002.

133    Mr Chin submits that no letters of transfer from Elcom to its successors or thereafter establishing the transference of the provisions of MOPPS as part of Mr Delforce’s contract of employment were tendered. Mr Chin invites me to apply the principles of Jones v Dunkel (1959) 101 CLR 298 to infer that such documents did not exist or, if they did, they would not assist Macquarie Generation’s argument.

134    Mr Chin submits that:

This is to be contrasted with the facts in Riverwood in which the Full Federal Court of Australia held (per North and Mansfield JJ, Lindgren J dissenting) that relevant redundancy provisions contained in an employer's "Human Resources Policies and Procedures Manual" were incorporated by reference into a contract of employment where such contract comprised a letter of appointment that expressly provided that the employee would "agree to abide by all company policies and practices currently in place, any alterations made to them, and any new ones introduced." There is no such express (or implied) incorporation with respect to Mr Delforce's employment contract.

... ...

To the extent that the Respondent also relies upon clause 2 of Schedule 3 to the Energy Services Corporations Act 1995 (see paragraph 9 of its written submissions), the Applicant submits that this provision can be of no assistance to the Respondent's case in the absence of any evidence of any prior "agreements" between Mr Delforce and Pacific Power that Ex 21 should constitute contractual terms.

135    Mr Chin further submits:

“... clause 2 of Schedule 3 to the Energy Services Corporations Act 1995 is qualified by the words in parenthesis: "(until other provision is duly made under any Act or law)". In other words, the transference of any statutory powers held by Pacific Power to the Respondent upon the relevant transfer of staff was made subject to any other inconsistent and "duly made" statutory provision. Schedule 4.7[1] of the Energy Services Corporations Act 1995 (No. 95) amended the Pacific Power Act by inserting s 4 of the Pacific Power Act (referred to in paragraph 11 of Ex 35). Section 4 was thus a provision "duly made" under the Pacific Power Act within the meaning of the aforementioned qualification in clause 2 of Schedule 3 to the Energy Services Corporations Act 1995. Furthermore, s 4 is inconsistent with the transference (from Pacific Power to the Respondent) of any right of suspension under s 66 of the Pacific Power Act for the reasons set out in paragraphs 17 to 27 of Ex 35

136    Mr Chin refutes the argument that s30 of the Interpretation Act preserves a statutory right to suspension; firstly on the basis that the respondent never acquired a contractual right to suspend and accordingly there was nothing to preserve; secondly, s30 preserves statutory rights not contractual rights; and thirdly, that if it were alleged that s30 preserved a valid statutory right of suspension, Macquarie Generation would still have been denied the power to suspend Mr Delforce in the absence of the repealed regulations as s30 does not preserve a power to take advantage of an enactment or abstract right.

137    In support of this latter contention Mr Chin relied upon a judgment of the High Court of Australia in Mathieson v Burton (1971) 124 CLR 1 pursuant to the Landlord and Tenant (Amendment) Act 1948 (NSW).

138    Mr Chin submits:

The application of s30 of the Interpretation Act 1987 is thus limited by any contrary intention to be found in the Pacific Power Act. Such contrary intention is apparent in the terms of s4 of the Pacific Power Act; refer to paragraphs 17 to 27 of Ex 35. Section 4 of the Pacific Power Act evinces an intention to preclude the Respondent from having the power of suspension under s 66. This is squarely inconsistent with the assertion that such a power is preserved by s 30 of the Interpretation Act.

139    Mr Chin notes that the respondent does not seek to rely on s20ZC of the SOC Act, which he submits is discounted by his earlier submissions.

Consideration of the validity of suspension

140    There is a clear legislative intention in s66 of the Pacific Power Act that access to disciplinary suspension as an alternative to dismissal be available. There can be no doubt that this legislative provision is extended to Macquarie Generation by operation of the Energy Services Act.

141    There is no substance in my opinion to the argument advanced by Mr Chin seeking to distinguish between the legislative use of “power”, “authority” and “function”. It is clear from the provisions of ss65 and 66 of the Pacific Power Act that there is perceived a need to have access to the “power”, “authority” or “function” to impose disciplinary stand down “for and in relation to the control and governance of employees” (s65); and “for and in relation to any other matter or thing necessary or convenient to ensure maintenance of discipline and efficiency in the service of the Commission”.

142    There is unarguably significant convenience for all parties in the access to disciplinary suspension of the type available here, limited as it is to three days, by the Power of Sub-Attorney executed in favour of the Manager of Bayswater Power Station; as opposed to the ultimate sanction of termination of employment or the absence of any sanction in circumstances so warranting.

143    The provisions of the Pacific Power Act were supported by specific regulation made pursuant to s65 of that act, found in Government Gazette No 48 of 19 March 1954. This regulatory support for s66 of the Pacific Power Act was further supported by detailed procedures found in MOPPS.

144    Mr Delforce commenced employment with Elcom at a time when the Pacific Power Act, the regulations thereto, and the procedures detailed in the Manual of Personnel Policy and Procedures are not challenged. He has since enjoyed continuous employment with Elcom and its successor entities, and as a consequence of that continuous employment, has enjoyed continuity of service for accrual and maintenance of such rights as annual leave, long service leave, sick leave, and superannuation.

145    I cannot accept that Mr Delforce’s employment has been subject to separate and fresh contracts of employment divisible and distinguishable in their terms.

146    This contract of employment is subject to the Electricity Commission Act 1950 as amended and the regulations and by-laws thereunder. The critical issue then turns upon the repeal of the regulations made pursuant to s65 of the Pacific Power Act and the effect thereon upon the contract of employment and the operation of s66.

147    I find in favour of the arguments advanced by Mr Phillips that the effect and force of s66 of the Pacific Power Act remains within the contract of employment of Mr Delforce and is not diminished by the repeal of the 1954 Regulations by the Subordinate Legislation Act 1989.

148    The application for relief is refused.

149    Matter No IRC 257 of 2002 is so concluded.

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LAST UPDATED: 24/02/2003