Industrial Relations Commission of New South Wales CITATION: Crown Employees (Teacher Staffing Entitlements) Award [2008] NSWIRComm 241 APPLICANT (RESPONDENT ON THE MOTION): New South Wales Teachers Federation PARTIES: RESPONDENT (APPLICANT ON THE MOTION): Department of Education and Training FILE NUMBER(S): IRC 1389 of 2008 CORAM: Boland J President; Walton J Vice-President; Haylen J; McLeay C CATCHWORDS: AWARD - Application for a new award in relation to teacher staffing entitlements - Notice of motion contending Commission was without jurisdiction - Whether there was an inconsistency between the Teaching Service Act 1980 and the award-making functions of the Industrial Relations Commission available under the Industrial Relations Act 1996 - Whether s 47A(9) of the Teaching Service Act 1980 operated as a privative clause to prevent in part the making of the Award sought - Whether the no extra claims provision of the Award operated to prevent in part the making of the Award sought - First issue answered in the negative - Second issue answered in the affirmative - Third issue answered in the negative Industrial Arbitration Act 1912 Industrial Arbitration Act 1940 Industrial Relations Act 1996 Justices Act 1958 (Vic) Licensing Act 1958 (Vic) LEGISLATION CITED: Public Service Act 1902 Public Service Act 1979 Public Sector Management Act 1988 Public Sector Employment Management Act 2002 Teaching Service Act 1980 Teaching Service Amendment Act 2004 Chorlton v Lings [1868] LR 4 CP 374 Crown Employees (Agricultural Field Officers - Department of Agriculture) Award [1953] AR (NSW) 478 Crown Employees (Clerks, Professional, Public Trust Office and Lands Department) Award [1929] IAR 135 Crown Employees (Motor Vehicle Allowances) Award (1986) 14 IR 289 Crown Employees (NSW Fisheries, Salaries and Conditions of Employment) Award (2003) 129 IR 369 Crown Employees (Professional) Conciliation Committee [1933] IAR 216 Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209 Crown Employees (Teachers - Education Teaching Service - Maximum Class Size) Award (1989) 30 IR 435 Department of Tourism Appointments [1980] 1 NSWLR 285; [1980] AR (NSW) 241 Ex parte Master Builders' Association of New South Wales; Re Industrial Commission of New South Wales [1971] I NSWLR 655 CASES CITED: Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Government Employees (Redundancy) Award; Application by Public Service Association of New South Wales for an Award (1984) 11 IR 266 New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 [1999] NSWIRComm 234 Public Service Association (NSW) v Public Service Board (NSW) (1986) 14 IR 414 Public Service Association of NSW v Industrial Commission of NSW (1985) 1 NSWLR 627 Re Public Service Board; re Steele (1987) 17 IR 286 Rose v Hvric (1963) 108 CLR 353 Saraswati v R [1991] HCA 21; 172 CLR 1 Secretary of Ministry of Education & Youth Affairs v New South Wales Teachers Federation (1990) 32 IR 390 Shanmugam v Commissioner for Registration of Indian and Pakistani Residents [1962] AC 515 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 HEARING DATES: 30 September 2008 DATE OF JUDGMENT: 10 December 2008 APPLICANT (RESPONDENT ON THE MOTION): Mr S Crawshaw SC with Ms P F Lowson of counsel New South Wales Teachers Federation (Ms B Seymour) LEGAL REPRESENTATIVES: RESPONDENT (APPLICANT ON THE MOTION): Mr S B Benson of counsel Crown Solicitor's Office (Ms M Kelly) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, PRESIDENT WALTON J, VICE-PRESIDENT HAYLEN J McLEAY C Wednesday 10 December 2008 Matter No IRC 1389 of 2008 CROWN EMPLOYEES (TEACHER STAFFING ENTITLEMENTS) AWARD Application by New South Wales Teachers Federation for a new award INTERLOCUTORY DECISION OF THE COMMISSION [2008] NSWIRComm 241 1 On 20 August 2008, the NSW Teachers Federation ("the applicant") filed an application for an award to be titled the Crown Employees (Teacher Staffing Entitlements) Award. The applicant summarised its application as seeking to establish the following: (i) minimum teacher numbers applicable to various circumstances (majority of clauses in the Award); (ii) maximum teaching hours (see clauses 2.3, 19.1); (iii) circumstances in which teachers are relieved from face to face teaching (see clauses 4, 13.2 to 13.9, 20.3 to 20.9); and (iv) actual allocation of staff (see clauses 2.2, 9.2, 16, 18.2 and 27). 2 The Department of Education and Training ("the respondent") opposed the application and by notice of motion contended that the Commission was without jurisdiction to make an award pursuant to the Industrial Relations Act 1996 ("IR Act") in the terms of the Federation's application. The award application 3 The proposed award consists of some 31 clauses. To give an idea of the complex content of the award we refer to some of the major provisions. Clause 2 deals with the minimum staffing requirements for mainstream primary schools. The clause provides as follows: 2. Minimum Staffing Entitlement – Mainstream Primary Schools 2.1 The minimum staffing entitlements for mainstream primary schools shall be the total of: i. classroom teacher ii. "RFF" teacher iii. teacher librarian iv. part-time teacher v. if relevant, executive relief vi. if relevant, small school supplement vii. if relevant, STLA allowance viii. if relevant, Priority Schools Funding Program staffing supplement ix. If relevant, reading recovery teacher x. If relevant, ESL teacher xi. School Counsellor allocation. 2.2 After the minimum staffing entitlement has been established, actual staffing shall be allocated in accordance with this Award. 2.3 Classroom teachers shall teach a maximum of 4 ¾ hours per teaching day. 4 Clause 3 sets out the formula used to calculate the minimum staffing entitlement for classroom teachers at mainstream primary schools ("the minimum classroom teacher entitlement"): 3. Classroom Teachers 3.1 The following formula will be used to calculate the minimum staffing entitlement for classroom teachers at mainstream primary schools ("the minimum classroom teacher entitlement"). Table 1 Classroom Teachers Entitlement Formula Primary Students Enrolled Classroom Teachers 1-261 26–472 48–512 52–703 71–773 78–1034 104–1295 130–1386 139–1556 156 and overPursuant to subclause 3.2 below 3.2 Where the number of primary students enrolled is or exceeds 156, the following formula shall be used to calculate the minimum staffing entitlement for classroom teachers: Number of kindergarten students x 0.0513 + Number of Year 1 students x 0.0435 + Number of Year 2 students x 0.0400 + Number of Year 3 to 6 students x 0.0333 3.3 Even if the number obtained in accordance with the above formula delivers a minimum classroom teacher entitlement of less than 7, the minimum classroom teacher entitlement shall be 7. 3.4 Where the number obtained in accordance with the above formula has decimal places, it shall be rounded up to the next whole number. 3.5 In a mainstream primary school, the minimum classroom teacher entitlement shall be used to determine i. the RFF Staffing Entitlement ii. the teacher librarian staffing entitlement iii. the part-time teacher staffing entitlement 5 Clause 4 deals with the subject matter of release for face to face teaching. Clauses 4.1 and 4.2 are in the following terms: 4. Release from Face to Face Teaching and Relief for Release from Face to Face Teaching 4.1 Each full-time primary teacher is entitled to 2 hours (0.084 of a full-time equivalent) release from face to face teaching each week. 4.2 Permanent part-time or temporary part-time primary teachers are entitled to release from face to face teaching allocated pro-rata to the rate for full time teachers. 6 Clause 4.3 provides that "In order for classroom teachers to receive their entitlement to release from face to face teaching, mainstream primary schools shall have the following staffing entitlement to RFF teachers". Thereafter a table is set out showing the entitlement. 7 Clause 5 prescribes the minimum staffing entitlement for teacher librarian for mainstream primary schools. Clause 6 prescribes the minimum staffing entitlement for part-time teachers for mainstream primary schools. Clause 7 sets out a table to be used to calculate the minimum staffing entitlement of executive positions at mainstream primary schools. 8 Clauses 8 to 13 deal similarly with support class primary schools. Clauses 14 to 16A prescribe provisions applicable to all primary schools. Clauses 17 to 28 deal with minimum staffing entitlements in secondary schools. Clauses 18.1 and 18.2 are in the following terms: 18 Minimum Staffing Entitlement – Secondary Schools 18.1 The minimum teacher staffing entitlement for a secondary school shall be the total of: (i) teachers in accordance with General Scale Lower; (ii) teachers in accordance with General Scale Upper, (using the aggregation of both full time student enrolments and the equivalent full time enrolment figure of part time student enrolments); (iii) Executive allowances (iv) Secondary Teaching Concession allowance (v) Secondary Teacher Librarian allowance (vi) Secondary Careers Teacher allowance (vii) If relevant, STLA allowance (viii) If relevant, Approved Support Class Teacher/s (ix) If relevant, Approved Support Class Supplement (x) If relevant, secondary ESL teacher allowance (xi) If relevant, School Counsellor (xii) If relevant, smaller school supplement. (xiii) If relevant, Agriculture Allowance. (xiv) If relevant, secondary Priority Schools Funding Program supplement (xv) If relevant, Secondary Whole School Supplement 18.1.1 To determine the allocation of full-time equivalent classroom teachers in a secondary school, the staffing entitlement as determined for each item under clause 18.1 is individually ascertained and these are then aggregated, and from this aggregate the following identified positions are deducted as indicated below: Principal at 1.0 Each Deputy Principal position at 0.5 or 0.2 as appropriate Total number of Head Teacher positions at 0.8 each The school's Teacher Librarian Allocation (Clause 22) The school's Careers Teacher Allocation (Clause 23) The school's STLA Allocation (Clause 24) The actual number of Support Class Teachers at 1.0 each The school's EFT ESL Allocation The school's EFT School Counsellor Allocation The number left after deduction of these identified positions shall be the full-time equivalent of classroom teachers for that school. 18.2 After the minimum staffing entitlement has been established, actual staffing at a secondary school shall be allocated in accordance with this award. 9 Clause 29 is leave reserved. Clause 30 is the standard anti-discrimination provision. Clause 31 sets out the dispute resolution procedures. 10 Schedule B to the application sets out the grounds and reasons in support: 1. The effective delivery by teachers of education to students fundamentally depends on the number of teachers available at each school. 2. The workload of teachers depends on the number of teachers available at each school. 3. The methods by which teacher staffing is calculated for public sector schools have developed over many years and involve the application of different formulae depending upon a variety of factors including but not limited to the student enrolment numbers, classification of the teachers, and the type of school. 4. The calculation of teacher staffing entitlements currently requires access to several different departmental publications and documents. 5. The Award collects the different formulae and other methods for calculating minimum teacher staffing entitlements into one industrial instrument. 6. The Award making of the Award will result in transparency and certainty in setting out minimum teacher staffing entitlements. 7. The Award does not increase or decrease current minimum teacher staffing entitlements. 8. The Award covers all teachers including classroom teachers, executive, and special purpose teachers. 9. The Award covers most schools, with leave reserved to include all schools once this Award is made. 10. The making of the Award will prevent unilateral changes being made to staffing entitlements as has occurred recently in relation to other conditions relating to staffing. The notice of motion 11 The orders sought in the respondent's notice of motion were: 1. An order that the proceedings in Matter No IRC 1389 of 2008 (also referred to as MIC 8/2) be dismissed for want of jurisdiction in whole or in part. 2. In the alternative, an order that part of the proceedings be dismissed as being in contravention of Clause 33 – No Further Claims of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award, 2006. 3. Such other orders as the Commission deems appropriate. 12 The grounds and reasons supporting the motion were expansive. It is apparent from the grounds and reasons that the respondent seeks to have the application dismissed on three alternative grounds as follows: (a) section 5 of the Teaching Service Act 1980 ("the TS Act") operates to create an inconsistency between the TS Act and the award-making functions of the Industrial Relations Commission available under the IR Act, which must be resolved by finding that the Commission is without jurisdiction to make the Award sought; (b) section 47A(9) of the TS Act operates as a privative clause to prevent in part the making of the Award sought; or (c) clause 43 of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2006 ("the Teachers Award") operates to prevent in part the making of the Award sought as the Award is an "extra claim" made during the current term of the Teachers Award. INCONSISTENCY GROUND Submissions of the parties 13 As to the first ground, the respondent contended that the field of operation of s 5 of the TS Act in relation to s 7(1)(b) of that statute precluded the award making power of the Commission within that field. It seems that both parties took the position in their submissions that the later statute was the TS Act and the earlier statute the IR Act. So that, in effect, the respondent was contending that to the relevant extent the later TS Act impliedly repealed the earlier IR Act. We note that s 7 of the TS Act was inserted in 2004 by the Teaching Service Amendment Act 2004. By the same enactment, s 38 of the TS Act was repealed. Section 38 had provided, relevantly, as follows: 38(1) The Director-General of Education shall, subject to the provisions of this Act and the regulations: (a) classify the schools in which members of the education Teaching Service are employed, (b) determine the teaching staff establishments for those schools, (c) determine the staff establishments for the positions of staff inspectors and inspectors of schools, (d) determine the staff establishments for positions (other than positions within the staff establishments referred to in paragraphs (b) and (c)) which the Director-General and the Public Employment Industrial Relations Authority agree are positions: (i) which are concerned with advising, controlling or supervising teachers in schools, and (ii) to which members of the Education Teaching Service may be appointed, … 14 As it will be seen, s 38 of the TS Act was clearly the predecessor provision to s 7 of the TS Act, which tends to raise some doubts about which statute is the earlier and which is the later: see Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 at [85] per Kirby J. Nevertheless, as the parties did not raise this issue we do not intend to take it any further and we will proceed on the basis that the TS Act is the later statute. 15 Sections 5 and 7 of the TS Act provide as follows: 5 Industrial Relations Act not affected Except to the extent that this Act otherwise expressly provides, nothing in this Act amends or affects the provisions of the Industrial Relations Act 1996. … 7 General functions (1) The Director-General has the following functions (a) to classify the schools in which members of the Teaching Service are employed, (b) to determine the staff positions in the Teaching Service (including the teaching positions in schools), (c) to determine the method of classifying and grading officers employed in the Teaching Service, (d) to determine the qualifications required for appointment to the Teaching Service, (e) to prepare and maintain a list of persons who the Director-General determines are not to be employed in the Teaching Service, (f) to maintain discipline in the Teaching Service. (2) Subsection (1) does not limit the functions that are conferred or imposed on the Director-General by or under this Act. 16 The respondent contrasted these provisions with s 10 of the IR Act: 10. Commission May Make Awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 17 The respondent contended that s 7(1)(b) of the TS Act dealt exhaustively with the issue of determining staff positions in the Teaching Service, including determining teaching positions in schools. It was submitted the word "expressly" in s 5 of the TS Act did not necessitate special reference in the provision in question in order to meet the requirement of being "expressly provided". The word "expressly" merely served to emphasise the generality of the main provision (here the IR Act) by making clear that no case was outside the provisions of that statute unless that was the necessary result of the operation of the specific provision in the TS Act according to the intention it manifested. In order to be outside the general provision (here the award making power of the Commission), the other enactment (here the power of the Director-General to determine staff positions in the Teaching Service) must be "inconsistent in meaning and therefore in operation": see Rose v Hvric (1963) 108 CLR 353 at 357-9. 18 The respondent referred to Public Service Association of NSW v Industrial Commission of NSW (1985) 1 NSWLR 627 ("Government Employees Redundancy case (CA)") and in doing so submitted that as both the general provision in s 5 of the TS Act and the particular provision in s 7(1)(b) were positive in form, the question was whether the particular provision, notwithstanding its affirmative form, contained a negative implication precluding the application of the general provision: see Rose v Hvric at 360; Government Employees Redundancy case (CA) at 634. The respondent submitted that this was the case, thus precluding the Commission from determining staff positions in the Teaching Service, including determining the teaching positions in schools. 19 The applicant submitted that the respondent's reliance on the Government Employees Redundancy case (CA) was misplaced; that s 7(1)(b) of the TS Act was merely a statement of one of the broad general functions allocated to the Director-General, with no detail at all to provide any framework. This difference meant that the provisions in the TS Act did not either by implication or express terms provide that the IR Act was amended or affected. CONSIDERATION 20 The issue for determination is whether the combined operation of ss 5 and 7(1)(b) of the TS Act have the effect of precluding the exercise of jurisdiction by the Commission to make an award, pursuant to s 10 of the IR Act, which determines minimum teacher staffing entitlements and associated matters at various categories of schools conducted by the respondent. Rose v Hvric 21 The exceptive words in s 5 of the TS Act, namely, "Except to the extent that this Act otherwise expressly provides", are not dissimilar in their purpose to the words considered in Rose v Hvric: "Except where otherwise expressly enacted". In that case the High Court (Kitto, Taylor and Owen JJ) considered whether the provisions of s 74(1) of the Justices Act 1958 (Vic) empowered a Court of Petty Sessions, "Except where otherwise expressly enacted", to impose a penalty for an offence where the Act creating the offence authorised the Court to impose imprisonment for the relevant offence, but not a penalty. In that case the defendant had been convicted for the second time of an offence of selling liquor without a licence contrary to the provisions of s 154 of the Licensing Act 1958 (Vic) which provided, relevantly, that the defendant "shall be liable for a second or any subsequent offence to imprisonment … for a term of not less than 6 months nor more than 12 months". Their Honours said at 357 - 358: 6. What, then, is the point of the insistence in such an exceptive expression as that which introduces s. 74 (1) of the Justices Act that the general provision shall apply except where otherwise "expressly" enacted? In appropriate contexts "expressly" may be used as the antonym of "impliedly", as it is in s. 2 (2) of the same Act and in the statement that "an express repeal of or exemption from an earlier enactment is not more effectual than if it were created by implication" : Goodwin v. Phillips [1908] HCA 55; (1908) 7 CLR 1, at p 16 . But this cannot be the sense of the word in s. 74 (1), for the reason which the statement just quoted provides. The word merely serves to emphasize the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests: see Metropolitan District Railway Co. v. Sharpe (1880) 5 App Cas 425 and Chorlton v. Lings (1868) LR 4 CP 374. And further at 359 that: Thus, while an exception from the operation of a statutory provision may be effected by an inconsistent implication in a later provision (or, with the aid of such exceptive words as those of s. 74 (1), by such an implication in an earlier enactment), it cannot result from an enactment which is not inconsistent in meaning and therefore in operation, even though the latter enactment provide ground for a conclusion that the draftsman's train of thought, if logically pursued, would have led him to enact the exception. Explicit or implicit contradiction is efficacious; merely "inferential contradiction", as Lord Hatherley called it in Attorney-General v. Great Eastern Railway Co. (1873) LR 6 HL 367, at p 375, is not. The general provision of s. 74 (1) of the Justices Act is accordingly prefaced by words which have a saving effect as regards earlier enactments and serve as a reminder in relation to later, meaning in regard to both that the general provision which follows is not to be denied any of its operation save by something actually inconsistent with it in the operation of another enactment. 22 It is instructive to see what their Honours finally determined at 361 in relation to the contested provisions: Then, is there in par. (b) of s. 154 (1) a negative implication forbidding the imposition of a penalty in lieu of imprisonment for a second or subsequent offence? We do not think that there is. Both s. 154 (1) (b) and s. 74 (1) can work together, just as easily as can s. 74 (1) and any other provision conferring authority to impose imprisonment but not a penalty. The section of the Licensing Act provides generally for a second or subsequent offence. The Justices Act does not by s. 74 (1) contradict either what the former says or anything it implies. It is true that for a second or subsequent offence s. 154 (1) (a) of the Licensing Act prescribes a liability not merely to imprisonment but to a minium term of imprisonment. In relation to such a provision, however, s. 74 (1) can take effect exactly as it does where no minimum term is prescribed, for its operation is merely to add a different kind of liability, less severe, as an alternative which a court of petty sessions may adopt where it thinks that "the justice of the case will be better met" thereby. There is no inconsistency. The general provision of s. 74 (1) is opposed not by anything that is enacted in s. 154 (1), but at most by an inference of an intention which has not reached the point of enactment. There is therefore nothing to prevent its application to second or subsequent convictions under s. 154 (1). 23 Thus, it is not necessary, in order to meet the requirement that a statute otherwise "expressly provides", that one Act should contradict another statutory provision directly and explicitly before the requirement is satisfied. Nevertheless, in Rose v Hvric the High Court found that in s 154(1) of the Licensing Act there was no negative implication forbidding the imposition of a fine notwithstanding that for a second or subsequent offence s 154(1)(a) prescribed a liability to a minium term of imprisonment; that s 154(1) contained no more than an "inferential contradiction", which was not sufficient to create an inconsistency. Early cases 24 Prior to the decision in Rose v Hvric there were two decisions of predecessors of this Commission that considered competing provisions in statutes applying to public sector employees. The first was Re Crown Employees (Clerks, Professional, Public Trust Office and Lands Department) Award [1929] IAR 135. That was a decision of the Industrial Commission of New South Wales (Piddington J, President, Street and Cantor JJ) where, on the one hand, the Commission considered provisions of the Industrial Arbitration Act 1912 that enabled the Commission to make awards for limited purposes applying to public sector employees and, on the other hand, the Public Service Act 1902, which enabled the Public Service Board and certain specified tribunals to prescribe not only minimum rates of pay but also actual rates of pay for public servants. The Public Service Act contained a provision to the effect that nothing in that Act shall amend or affect the provisions of the Industrial Arbitration Act. The Commission took the view that even within the limited power of the Commission to deal with minimum salaries for public sector employees, the Commission could fix rates different from those established by tribunals created by the Public Service Act. This case was followed in Re Crown Employees (Professional) Conciliation Committee [1933] IAR 216 at 222. 25 In Re Crown Employees (Agricultural Field Officers - Department of Agriculture) Award [1953] AR (NSW) 478 ("Agricultural Field Officers case") an agreement had been entered into between the Public Service Board and the Public Service Association representing the agricultural field officers. Section 14B of the Public Service Act provided that: "Every such agreement shall bind all officers or employees in any such class or group ..." In the context of s 5A of the Public Service Act an application was made to the Industrial Commission for an award covering the same matters as the agreement. Section 5A provided that: Save as otherwise expressly provided nothing in this Act shall amend or affect the provisions of the Industrial Arbitration Act 1912 or the Industrial Arbitration (Amendment) Act 1926 or any Act amending or replacing those Acts. 26 The Commission, in upholding its jurisdiction to make an award for agricultural field officers, said (at 481): The terms of Section 5A open with the words 'Save as otherwise expressly provided', and it is only where there is some other express provision contained in the Public Service Act that it was the intention of Parliament that the Public Service Act should amend or affect the provisions of the Industrial Arbitration Act ... We are not unmindful of the fact that the word 'expressly' has been held to mean often no more than 'plainly, clearly or the like' ... But as we read the language of Section 14B, it is not strong enough to amount to an express provision which either amends or affects the Industrial Arbitration Act in relation to award making. 27 In passing, the Full Bench in the Agricultural Field Officers case referred to s 14A of the then Public Service Act, which provided for the determination by the Public Service Board, or Salaries Committees, of gradings and salaries for public servants. The Full Bench considered whether s 14A was an express provision within the meaning of s 5A and concluded that it was not because: [T]he result would be to nullify altogether the powers of tribunals functioning under the Industrial Arbitration Act to make any award for Public Service employees. 28 In its decision in the Agricultural Field Officers case, whilst holding that ss 14A and 14B did not affect the Commission's jurisdiction to make an award, the Full Bench said that the existence of any determination or agreement would be of considerable importance in relation to the exercise of the Commission's discretion to make an award. The Full Bench stated at 482: [I]t must not be taken that we hold the view that in any such case an award should necessarily be made; indeed, in all probability, the onus would rest on and remain with a party to a current agreement who sought an award to justify its making. The Tourism case 29 Subsequent to the decision in Rose v Hvric, the Industrial Commission in Re Department of Tourism Appointments [1980] 1 NSWLR 285; [1980] AR (NSW) 241 (Perrignon, Watson and Dey JJ) ("the Tourism case") considered whether the Commission had jurisdiction to enquire into a decision of the Public Service Board to give a certificate pursuant to s 63 of the Public Service Act 1979. Section 63 provided that 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 the section. The Board had issued such a certificate certifying that there was no officer within the Public Service "fit, qualified and available" for appointment to a management position in a travel centre. The Public Service Association notified the existence of a dispute over the issue of the certificate. 30 Section 8 of the Public Service Act provided that: "Unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act 1940". Noting that s 8 was a re-enactment of s 5A of the Public Service Act 1902 and noting the decision in the Agricultural Field Officers case, the Commission held that no different situation existed from that applicable at the time of the Agricultural Field Officers case. Accordingly, it was determined that s 63 did not, of itself, inhibit the Commission's powers to determine the industrial dispute. No reference is made to Rose v Hvric in the judgment. Government Employees Redundancy case (IRC) 31 In Re Government Employees (Redundancy) Award; Application by Public Service Association of New South Wales for an Award (1984) 11 IR 266 ("Government Employees Redundancy case (IRC)") the Industrial Commission of New South Wales in Court Session (Fisher P, Watson and Bauer JJ) considered an application by the Public Service Association ("PSA") for a Government Employees (Redundancy) Award. It was contended by the Public Service Board opposing the application that the Commission had no jurisdiction to make the Award because of the combined operation of ss 8, 113 and 114 of the Public Service Act 1979. 32 We have already cited s 8. Sections 113 and 114 were in the following terms: Excess staff 113. (1) If the Minister (after consideration of the report of a relevant efficiency audit or special inquiry), or the appropriate Department Head, is satisfied that a number of persons (referred to in this section as the 'excess persons') are employed in a Department in excess of the number that appears to be necessary for the efficient, effective and economical management of its functions and activities, then — (a) subject to paragraph (b), the Board shall take such steps as are practicable to secure the transfer of the excess persons to vacant positions in any other Department at their existing salaries; and (b) if any such person cannot be usefully employed in any other Department, his services shall be dispensed with by the Board with the approval of the Governor. (2) A transfer under this section shall be made by the Governor on the recommendation of the Board, and shall not be made except after consultation by the Board with the Head of the Department to which the officer is being transferred. Excessive salaries 114. (1) If the Minister (after consideration of the report of a relevant efficiency audit or special inquiry), or the appropriate Department Head, is satisfied that an officer employed in a Department is in receipt of a greater salary than the maximum fairly appropriate to the work performed by the officer — (a) subject to paragraph (b), the Department head shall take such steps as are practicable to assign the officer work of a class appropriate to his salary; and (b) if the officer cannot be assigned sufficient work of the kind referred to in paragraph (a) or is unfitted for or incapable of performing work appropriate to his salary — subsection (2) applies to the officer. (2) Where this subsection applies to an officer — (a) subject to paragraph (b), the Board shall take such steps as are practicable to secure his transfer, to a vacant position in any other Department, at his existing salary; and (b) if such a transfer cannot be made or the officer is unfitted for or incapable of performing the work attached to such a position — the Board — (i) shall reduce his salary to the maximum determined by the Board to be appropriate to the work performed by him; and (ii) may take such steps as are practicable to secure his transfer, to a vacant position in the Department to which he belongs or in any other Department, at that salary. (3) If a reduction of salary of an officer under this section is certified by the Board to have been made on the ground only that appropriate work or an appropriate position is not available, the officer — (a) remains eligible for promotion as if his salary had not been reduced; and (b) is entitled to employment on the class of work to which his previous salary was appropriate, or transfer to a position to which that class of work is attached, as soon as the appropriate work or an appropriate position becomes available, in preference to any other officer whose salary has not been reduced. (4) A transfer under this section shall be made by the Governor on the recommendation of the Board, and shall not be made except after consultation by the Board with the Head of the Department to which the officer is being transferred. 33 Although the Commission did not refer to Rose v Hvric, it did cite Chorlton v Lings [1868] LR 4 CP 374 and Shanmugam v Commissioner for Registration of Indian and Pakistani Residents [1962] AC 515. Chorlton was referred to with approval by the High Court in Rose v Hvric. Shanmugam said essentially the same as Chorlton, namely, that: To be 'express provision' with regard to something it is not necessary that that thing should be specially mentioned; it is sufficient that it is directly covered by the language however broad the language may be which covers it so long as the applicability arises directly from the language used and not be inference therefrom: Shanmugam at 527. 34 In Government Employees Redundancy case (IRC) the Commission stated at 271: As the Agricultural Field Officers case correctly illustrates, however, the mere fact that the Public Service Act deals especially with a particular aspect of an employment relationship, does not of itself affect the exercise of the general powers under the Industrial Arbitration Act … Salaries, for example, may be prescribed under both Acts … An award could not be validly made however which purported to remove the Board's power to determine salaries, or to enter into binding agreements … It is a matter of considering the particular section said to be relevant in the Public Service Act , to determine in each case whether the exception contained in s 8 applies … 35 After finding that an award under the Industrial Arbitration Act may not be made that is inconsistent with a statute, the Commission stated at 271: An award or order under the Industrial Arbitration Act will not be outside power if it supplements or operates in tandem with a statutory provision. Section 8 does not merely preserve this position. It emphasises it. 36 The Commission considered each of the various provisions of the claimed award. For example, one of those provisions related to a right of appeal to resolve issues concerning redundancy. The Commission at 275 held: The provision of this right would involve mechanisms which would necessarily operate to delay or restrict procedures under the Public Service Act . We do not see that an award could appropriately be framed to avoid inconsistency to that extent. 37 A further example was in relation to notice. The Commission referred to cl 4 of the proposed award that sought six months' notice with additional periods based on service. The Commission stated at 271: We do not see ss 113 and 114 as sections which preclude any regulation under the Industrial Arbitration Act. Nevertheless, a formula as claimed, which, by award, seeks to place restrictions or prohibitions, even if only in time, against steps being followed, as required by the sections [ss113 and 114], would, in our view, be inconsistent with those sections and could not be prescribed validly by an award of general application. 38 The Commission stated at 276 by way of general conclusion: It is sufficient to say that the substantial part of the claim may not be made the subject of a general award which purports to deal with what are defined in the claim as redundancy situations. This is because of inconsistency with detailed prescriptions in the Public Service Act which vest in the Governor, the Board, the Minister and the Department Head, functions and powers which … are clearly intended to be exercised under that Act by such bodies or persons and not otherwise. Government Employees Redundancy case (CA) 39 Government Employees Redundancy case (IRC) was the subject of an order in the nature of mandamus in the Court of Appeal in the Government Employees Redundancy case (CA). In that case the Court of Appeal followed Rose v Hvric: see 634 - 635 per Street CJ, 645 per Kirby P, 650 - 651 per Priestley JA. The Court of Appeal again considered the interaction between s 8 and ss 113 and 114 of the Public Service Act 1979. The Court of Appeal held (at 627) the following: (a) The wording of ss 113 and 114 of the Public Service Act 1979 which dealt with aspects of "industrial matters" as defined in the Industrial Arbitration Act 1940, namely, excess staff and excess salaries, indicated by way of negative implication that the functions and powers those sections created were to be exercised under that Act only, by persons mentioned in them and that the non-affectation of the Industrial Arbitration Act , provided for by s 8 of the Public Service Act was displaced; (b) Accordingly, the Industrial Commission's jurisdiction relating to excess staff and excessive salaries was withdrawn in respect of matters provided for in both ss 113 and 114 of the Public Service Act . 40 The Chief Justice at 636 set out his reasoning for concluding that the Commission's jurisdiction was ousted by ss 113 and 114 of the Public Service Act. Critically, his Honour considered that: Sections 113 and 114 contain no explicit statement either that they are subject to an award made by the Commission or that they will apply irrespective of an award. They purport to be, and are, enactments of procedures affecting the rights of public servants in their conditions of service in situations of excess staff or excessive salaries. They are positive and affirmative in their form, but inevitably they contain a negative implication precluding the making of an award inconsistent in operation, or in contradiction, of the enactments in these two sections (our emphasis). 41 Importantly, Street CJ observed in relation to the Commission's jurisdiction in the fields covered by ss 113 and 114 of the Public Service Act that: At the same time there remains jurisdiction to flesh out or complement the scheme provided always that any such award is not inconsistent in operation with, or contradictory of, the specific provisions of these two sections. In this regard there is no justifiable basis for concluding that the legislature has indicated an intention to preclude the Commission from entering this field at all. 42 The ratio of the judgment of Kirby P, in concluding that the provisions of the Public Service Act prevailed, is at 648 - 649: The first is the primacy of Parliament, and the fact that the legislature, quite recently, has enacted provisions, some of them novel and controversial, to deal with particular aspects of the contemporary problem of redundancy. It would be surprising if such provisions, so lately made by the Parliament, were intended simply as transitional pending a more comprehensive award of the Industrial Commission which could override them. Such an award would be even more surprising if it could, by the vehicle of the Public Service Act , s 8, effectively repeal provisions of legislation which would remain apparently in force as part of the current legislation of the State, but which would effectively be put at nought, by an award made, as the claimants contend, without inhibition, save for consideration of the legislative language in the exercise of the Industrial Tribunal's residual discretion in making the award. Secondly … here, the competition is between detailed and specific statutory provisions on the particular subject of redundancy and a claimed general award on that subject, not between differing machinery for reaching determinations that might, in the result, compete. Thirdly, the degree of specificity in s 112 and the following sections in the Public Service Act 1979, whilst not constituting a code or excluding the award-making power of the Industrial Commission altogether, do represent a legislative pronouncement of some detail on issues relevant to redundancy. They should not lightly be ignored. There being no requirement, in terms, to refer to the Industrial Arbitration Act in order to exclude its operation, the proper inference to be drawn is that the legislature, by enacting s 112ff, intended to provide a general framework within which awards on this topic would be made, whilst preserving, by the language of the Public Service Act , s 8, the facility of access to the Industrial Commission to supplement the general language of the statute with award provisions not incompatible with it. Finally, although provisions which facilitate access to a just system of industrial relations might, in the case of ambiguity, be preferred to those which do not, against this consideration must be weighed the possible undesirability of a piecemeal approach to the significant industrial problem of redundancy and especially in the public service where the Parliament has already taken the trouble to make express statutory provisions addressing at least some of the issues in language which should not be regarded as transitional or conditional, pending an award of the Industrial Commission that could put them at nought. 43 Kirby P referred to the Agricultural Field Officers case and noted that case would assert jurisdiction and considered competing provisions under the Public Service Act as a matter going to the discretion reposed in industrial tribunals such as the Commission in the making of awards: see 646. His Honour then referred to the decision under review in Government Employees Redundancy case (IRC) as one that would regard the provisions in s 112 and the following sections of the Public Service Act 1979 as a sufficient express provision affecting the Industrial Arbitration Act 1940 and diminishing, to that extent, the Commission's power to make awards inconsistent with those sections. Kirby P favoured the approach taken by the Commission in the Government Employees Redundancy case (IRC) over that taken in the Agricultural Field Officers case and the Tourism case: see 647 - 648. At 648 Kirby P stated: The result of this analysis which I take to be that required by the approach suggested by the High Court in Rose v Hvric is to confirm the approach taken by the Industrial Commission. It is to reject the primary contention of the claimants. It reconciles the language of the Public Service Act 1979 and its provisions on redundancy with the facility of access by public servants to the Industrial Commission under the Industrial Arbitration Act 1940. Moreover, it does not ignore the provisions of the Public Service Act 1979, s 8. That section continues to operate as an indicium of the legislative intent, outside matters expressly provided for or necessarily implied, to accord a wide jurisdiction to the Industrial Commission to make awards, relevantly, on industrial matters including redundancy, filling the gaps left by the necess­arily general language of the statute and supplementing that language in ways that are not incompatible with the matters in respect of which Parliament has made express provision. To the extent to which some of the language in the Agricultural Field Officers case and, more especially, the Department of Tourism case, suggest a contrary or differing approach to the reconciliation of the Public Service Act and the Industrial Arbitration Act , I believe that the approach now taken by the Industrial Commission is more in accordance with the proper understanding of the legislation and with legal authority. In every case, there must be a careful consideration of the statutory provisions in the Public Service Act against the touchstone of the Public Service Act , s 8. 44 The reasoning of Priestley JA appears at 651 - 652: [A]dapting what was said in Rose v Hvric (at 359-360) the question becomes in the present case whether the meaning of the Public Service Act , ss 112-115, is, by way of negative implication, that the functions and powers they create are to be exercised under that Act by the persons mentioned in them and no other persons. To my mind, such a negative implication is to be found, at least in respect to certain matters. Section 113 for example requires the Minister, after stated procedures have been followed, to satisfy himself of a particular matter. That having happened the Public Service Board must take specified steps. One of the steps, if certain circumstances obtain is to dispense with the services of a particular employee. The steps involved in what is to be done pursuant to s 113 seem to me to involve clearly that they shall be taken by the persons mentioned in the section and nobody else. The words that seem to me to make this clear are "If the Minister … or … Department Head, is satisfied … then … the Board shall …". Section 114 is, to my mind, to the same effect in regard to its somewhat different subject matter. The operative words there are "if the Minister … or … Department Head, is satisfied … the Department Head shall [or] … the Board shall …". Stated in a different way the Public Service Act , ss 113 and 114, seem to me to deal with an aspect of "industrial matters" as defined in the IAA and to indicate by the ordinary meaning of their words that that aspect of the operation of the IAA is intended to be affected by the Public Service Act . I therefore think that it is "otherwise expressly provided" by those sections that the non-affectation of the IAA provided for by the Public Service Act , s 8, is to be displaced. 45 It is apparent from the three judgments that an important consideration was the specificity or precision of the terms of ss 113 and 114 of the Public Service Act in granting powers to the Minister or Department Head or Board and whether they constituted a negative implication shutting out the operation of the Commission's award making powers under the Industrial Arbitration Act. The Chief Justice referred to the two provisions as "positive and affirmative" and that they were "enactments of procedures affecting the rights of public servants in their conditions of service in situations of excess staff or excessive salaries". Kirby P referred to the competition between "detailed and specific statutory provisions on the particular subject of redundancy" in ss 113 and 114 and a claimed general award on that subject, "not between differing machinery for reaching determinations that might, in the result, compete". Priestley JA observed that s 113 required the Minister, after stated procedures have been followed: ... to satisfy himself of a particular matter. That having happened the Public Service Board must take specified steps. One of the steps, if certain circumstances obtain is to dispense with the services of a particular employee. The steps involved in what is to be done pursuant to s 113 seem to me to involve clearly that they shall be taken by the persons mentioned in the section and nobody else. His Honour regarded s 114 to the same effect, albeit in relation to a different subject matter. Motor Vehicle Allowances case 46 In February 1986, the same Full Bench that heard the case in Government Employees Redundancy case (IRC) dealt with a further challenge to the Commission's jurisdiction to make a Crown Employees (Motor Vehicle Allowances) Award: see Re Crown Employees (Motor Vehicle Allowances) Award (1986) 14 IR 289. In that matter it was contended by the Public Service Board that by virtue of the later enactment of the Public Service Act 1979 and in particular, s 133(2)(h) of that Act, the Commission no longer had the power to make an award affecting persons employed under the Act with respect to travelling allowances. The Board's contention was that the relevant provisions of the Public Service Act represented a special and express statutory provision relating to motor vehicle allowances for public servants. 47 Section 133 of the Public Service Act empowered the Board to make regulations, not inconsistent with the Act, with respect to a large number of matters set out in detail in sub-section (2). Those matters concerned determining seniority, determining who were fit and proper persons eligible to become temporary employees, the transfer of officers between departments, the hours of attendance of staff, the leave to be granted to staff and at (h) "travelling and subsistence allowances for staff … and other allowances for staff". The Full Bench noted that, if the Board's contentions were correct, they raised questions of importance not only in respect of claims for awards prescribing travelling and other allowances but for a range of other matters where s 133 was equally specific. In what was described as "a perhaps more dramatic consequence" of the success of the Board's argument, was that it would significantly reverse the effects of the 1976 amendments to the Industrial Arbitration Act, widening the access to industrial tribunals for unions representing employees in the public service. 48 In relation to the Board's implied repeal argument the Full Bench noted that, following the Government Employees Redundancy case (CA), it was clear that the fact that two statutes could deal with the same subject matter in no way concluded the issue. The issue went beyond the normal approach to be made where a later statute relates to aspects dealt with, either specifically or generally, in an earlier statute. The Full Bench said that rather the question to be answered was: [W]hether or not an expression of intention, within the meaning of the opening words in s 8 of the Public Service Act - 'unless otherwise expressly provided' - can be discerned in the Public Service Act , which indicates that the Industrial Arbitration Act is affected. 49 The Full Bench then turned to the Government Employees Redundancy case (CA) noting that the Court of Appeal based its approach to s 8 on what was said in Rose v Hvric. In the judgment of the Chief Justice in the Court of Appeal, it was noted that in the High Court it had been accepted that "unless otherwise expressly provided" could permissibly be paraphrased as "unless some inconsistent provision is expressly made". The word "expressly" did not necessitate special reference in the provision in question in order to meet the requirement of being "expressly" provided, but the word merely served to emphasise the generality of the main provision by making clear that no case is outside that provision, unless that is the necessary result of the operation of another enactment according to the intention it manifests. An implication will be sufficient if it leads to the conclusion that a provision has been made "means more than it explicitly says". In order to lie outside the general provision, the other enactment must be "inconsistent in meaning and therefore in operation ... explicit or implicit contradiction is efficacious". 50 After canvassing the judgments in both the High Court and the Court of Appeal, s 133 was compared with s 65A of the Public Service Act where reference was expressly made to the Industrial Arbitration Act so as to exclude award making in relation to promotions and appointments. That terminology had not been adopted in s 133. The Full Bench went on to state at 295: Section 133 is a general enabling provision which empowers the Board, (which has been created, amongst other functions, as a statutory employer on behalf of the Crown), to determine by regulation conditions of employment and other matters specific in the section. If an award were to prescribe benefits equal to or in excess of entitlements under regulations made pursuant to s 133, the consequence would not be to render inoperative those regulations or the regulation-making power. It would simply mean, as we see the position, that two bases of entitlement would be provided, one under the regulations made by the statutory employer and the other by award of an industrial tribunal. A parallel situation is where an award applies in the same area as an agreement under s 83 of the Public Service Act , a circumstance held by a Full Bench of the Commission in the Agricultural Field Officers Case [1953] AR (NSW) 478 not to amount to an express provision within the meaning of former s 5A, the precursor section to section 8. A further analogy arises in the circumstances under which an award stands side by side with rights and obligations under contracts of service (although in the later case, contractual rights less favourable than an award may be ineffective). These parallels suggest, if any inconsistency between an award and the regulations is to be resolved in favour of the regulations, that, having in mind s 8, some form of expression might be expected in s 133 which indicates a legislative intention that the statutory employer's determination of conditions of employment is to be paramount. Notwithstanding that expectation, in its general purport and operation, s 133 is not materially different from provisions in legislation establishing statutory authorities which enable the employing authority created under such legislation to determine conditions of employment for its staff (see, for example, s 7(2) of the Main Roads Act 1924). It is not readily to be presupposed that, following any re-enactment of such legislation or the creation of new bodies, the intention, in the normal course, will be the ousting of the award-making powers, without something more appearing that appears in s 133, with or without the presence of a section such as s 8. The difficulty with the Board's argument, in the light of the foregoing, is to see any indication in s 133 which suggests that the respective entitlements and obligations created by award and by regulation cannot stand side by side. Viewing s 133, as other sections were viewed in the Public Service Redundancy Case, no indication would seem apparent in s 133 which amounts to "a contra indication" or negation of the general intent of s 8 so as to preclude the making of an award as sought. There is one indication which rather points in the opposite direction. Section 133(6) provides that 'nothing in the regulations alters or affects any duties that by any Act are required to be performed'. Whatever may be suggested is the effect of s 133(6), (which repeats a similar subsection from the 1902 Act, (s 20(3)), in relation to award-making powers, it is hardly the type of provision expected or which fits comfortably within a section said to contain a negative implication capable of displacing award-making powers under another Act in an area embraced by the section. 51 The Full Bench then considered these provisions from the viewpoint that, in 1976, the Government had specifically extended the Commission's jurisdiction to make awards in relation to public servants and looked at the provision of the 1979 Public Service Act three years later to ascertain what was intended by s 133. This was described as a somewhat special legislative history and it was concluded that, on analysis, what occurred in 1979 amounted to nothing more than the continuance of provisions, whether examined before or after 1979 that were devoid of any "explicit or implicit contradiction" of the power to make an award. The Full Bench noted that a right of access to industrial tribunals was an important right which was generally extended to public servants in the circumstances outlined, and that what had occurred in 1979 with the re-enactment of s 5A in s 8 of the Public Service Act failed to disclose any legislative intent to take that right away or to qualify it so far as power to make an award or order in respect of travelling allowances was concerned. 52 The Full Bench concluded that there was power to make an award pursuant to the provisions of the Industrial Arbitration Act in terms of the application before the Commission for a Crown Employees (Motor Vehicle Allowances) Award. Re Steele 53 The next relevant case involving claimed inconsistency was decided in March 1987: Re Public Service Board; re Steele (1987) 17 IR 286. It followed the decision of the Court of Appeal in the Government Employees Redundancy case (CA). In Steele the Full Bench of the Commission considered, on appeal, the interaction between s 8, s 112 and s 115 of the Public Service Act 1979. Section 112 dealt with the powers of the Department Head and the Public Service Board in respect of the transfer of officers within and between departments. Section 115 dealt with those powers in relation to an officer refusing a promotion, appointment or transfer. 54 The Public Service Board had contended that arising from s 8 there was no power under the Industrial Arbitration Act 1940 to interfere with a decision to transfer an officer from one location to another or to interfere with any decision to terminate the employment of the officer for refusing the transfer. At first instance, Bauer J had decided it was within jurisdiction to make an order or award to defer and, in certain circumstances, prevent or set aside the transfer of an officer employed under the provisions of the Public Service Act. 55 After considering at length the decision in the Government Employees Redundancy case (CA), the Full Bench in Steele categorised the types of situations that had arisen in the cases under s 8 of the Public Service Act (and its predecessor). There were five categories (see 293 - 297). However, it is only necessary to refer to categories one, three, four and five. 56 Category one was said to be those general category cases where no express provision to the contrary occurred in the relevant competing provisions in the Public Service Act. The Full Bench observed at 294 that: In general, the relevant Public Service Act provisions within this category are those which might appropriately be described as enabling provisions in a statute which deals with employment on behalf of the Crown. Such statutory provisions occur, although generally in less elaborate form, in the case of other statutory employing authorities. In the main, they designate and allocate powers or functions normally exercisable by an employer. The functions so designated can in most instances be said to be little different from management rights or functions which exist in normal employment situations except for the fact they are created by statute instead of arising from the contract of employment. In common with the position in industry generally these rights and functions would normally be expected, therefore, to be subject to award regulation. Such prescriptions, where occurring in the Public Service Act , without more, can be said, as a consequence and as a general rule, to be likely to contain no express provision within the meaning of s 8 which affects or inhibits powers under the Industrial Arbitration Act . Cases said to fall within this category included the Agricultural Field Officers case, Re Crown Employees (Clerks, Professional, Public Trust Office and Lands Department) Award and the Tourism case. 57 Category three cases were those where the competing Public Service Act provisions contained no specific reference to the Industrial Arbitration Act but were such that it could be said that they otherwise expressly provided (within the meaning of s 8), thereby precluding any award making inconsistent with such provisions. This category was illustrated by the Government Employees Redundancy case (CA). The Board had contended that the provisions of ss 112 and 115 relating to transfers fell into this category. The Commission stated, however, that this contention took insufficient account of the distinction between the Government Employees Redundancy case (CA) and the case under appeal in that no claim was being made for a general award prescription applicable to transfers in a way that paralleled the claims in the Redundancy case. Rather, the appeal concerned one specific transfer. 58 The fourth category involved cases where an award or order dealing with steps or proposed steps fell outside a relevant Public Service Act provision. In such cases such an award or order would not, in general, be inconsistent with or contradictory of the Act's provision: the Tourism case. 59 Category five cases embraced orders or awards that notwithstanding any "negative implication" taking away general award making powers, may validly "flesh out or complement" the relevant provisions of the Public Service Act or operate "in tandem" with those provisions. This category of cases was characterised by the observations of Street CJ and Kirby P in the Government Employees Redundancy case (CA). 60 The Commission concluded that a power to make an award or order to defer directions by the Board or Department head was beyond power unless there had not been a valid exercise of the procedures prescribed by ss 112 and 115 of the Public Service Act, thereby bringing the case within category four: see 298. 61 The Commission stated that the case did not fall within category one: In the large organisation of the public service with its geographically widespread functions, it will be essential that transfers occur from time to time, with the need in some cases for direction. The intention … expressed in s 112, read with s 115(2), is that procedures have been laid down and function as allocated to the Board or to the department head to meet this special position in an way that demonstrates the existence of a "negative implication" so far as the Industrial Arbitration Act is concerned. Although positive and affirmative in form, the relevant sections in their context preclude the making of an award which is directly contradictory or inconsistent. … No award or order can … be made which, by deferment or otherwise, overrides what may validly be done under ss 112 and 115 on the basis simply of some concept of fairness … 62 The Commission said in relation to category five: [A]n award could also be made [under category five], supplemental to what may result from the application of s 112, by prescribing appropriate travelling or resettlement allowances which relate to particular transfers or to transfers generally. 63 The Full Bench in Steele concluded, inter alia, that: (1) The Commission has power under the Industrial Arbitration Act to deal with transfers of officers employed under the Public Service Act 1979 by way of an order or award including a declaratory order. (2) That power is affected by the specific provisions of ss 112 and 115(2) of the Public Service Act . (3) The Commission is not, therefore, at large to make any order or award which it may deem appropriate in relation to a transfer… (4) Where steps purported to be taken or proposed under ss 112 and 115(2) fall outside those sections because extraneous considerations are incorrectly taken into account or the actions of the Board or the department head may be vitiated for other reasons, an order or award may be made which defers or prevents a transfer. (5) An order or award may be made dealing with ancillary matters … Maximum Class Size case 64 One final case that should be referred to is Secretary of Ministry of Education & Youth Affairs v New South Wales Teachers Federation (1990) 32 IR 390 ("Maximum Class Size case"). In that case, the Full Bench considered an appeal from a decision of Bauer J in Re Crown Employees (Teachers - Education Teaching Service - Maximum Class Size) Award (1989) 30 IR 435. At 443 Bauer J held that the provisions of s 38(1) of the TS Act did not diminish the jurisdiction of the Commission to make an award prescribing maximum class sizes in schools. In so finding, his Honour considered the Government Employees Redundancy case (CA) and the Full Bench decision in Steele. 65 In the Maximum Class Size case the Full Bench dismissed the appeal. The Full Bench compared the subject matter of the award claim and s 38(1)(b) of the TS Act. The claim was that having regard to "workload" considerations, teachers in Government schools may be required to teach up to a specified maximum number of students in a class, dependent upon type of school, type of class and type of student. Section 38(1)(b), it will be recalled, provided under the heading "Functions" that the Director-General of Education shall, subject to the provisions of the Act and regulations: (a) classify the schools in which members of the Education Teaching Service are employed; (b) determine the teaching staff establishments for those schools; … 66 The Full Bench noted the appellant's submission that an award made in satisfaction of the Federation's claim may, or would, impinge upon or interfere with the statutory duty imposed on the Director-General to determine teaching staff establishments in schools. The Full Bench stated at 402 - 403: To our mind the present situation is a far cry from those existing in the Government Employees Redundancy case and in Steele's case. In those cases the provisions of the Public Service Act specifically related to the subject matter of the award claim and, in some respects at least, the provisions of that Act and the claim were clearly inconsistent. In the present case, however, there is no explicit or, in our view, implicit conflict in provisions. There is lacking any "degree of specificity" in relation to the matter of class sizes in the Teaching Services Act provisions. There may well be, as contended by counsel for the Ministry, an indirect or consequential effect on the carrying out by the Director-General of his function under s 38(1)(b) if an award were to be made in terms of the claim. However, that is not the test. In this regard, we would echo the words of the Commission in Court Session in the Police case in the context of considering certain provisions of s 20(1D) of the Act: "We do not consider that an indirect or consequential effect would in general, be sufficient to amount to inconsistency." The effect of s 5 of the Teaching Services Act is to retain intact the provisions of the Industrial Arbitration Act except to the extent that the Teaching Services Act "otherwise expressly provides". We have explained how that phrase is to be interpreted. It follows from what we have said that there is nothing in the Teaching Services Act and, in particular, nothing in ss 37 and 38 which "otherwise expressly provides" that the provisions of the Industrial Arbitration Act should in part or in whole be amended or affected. 67 The Full Bench in the Maximum Class Size case found no inconsistency between the proposed award and s 38 of the TS Act. This was because there was no explicit or implicit conflict between the award in question and s 38 of the TS Act; the Act simply did not refer to class sizes. Is the making of the award precluded by s 7(1)(b)? 68 In contrast to the provisions of ss 113 and 114 of the Public Service Act considered in the Government Employees Redundancy case (CA) and s 112 and s 115(2) in Steele, s 7 of the TS Act describes, in general terms, the functions of the Director-General. One of those functions is to determine the staff positions in the Teaching Service (including the teaching positions in schools): see s 7(1)(b). Thus, the competition between s 7(1)(b) of the TS Act and s 10 of the IR Act is, to quote Kirby P, "between differing machinery for reaching determinations that might, in the result, compete." In those circumstances, we do not consider that s 7(1)(b) constitutes a negative implication such that the non-affectation of the IR Act as provided by s 5 of the TS Act is necessarily wholly displaced. Clearly, s 7(1)(b) does not constitute a code nor does it contain any express or implied indication to exclude the Commission's general award making power. As Street CJ said in the Government Employees Redundancy case (CA), "there is no justifiable basis for concluding that the legislature has indicated an intention to preclude the Commission from entering this field [in this case, staff positions in the teaching service] at all". 69 In this respect, we note what was said in Ex parte Master Builders' Association of New South Wales; Re Industrial Commission of New South Wales [1971] I NSWLR 655 at 663 where Jacobs JA made certain observations about suggested contrariety between two State statutes and the importance of reconciling the operation of the two statutes. His Honour said: Although the concept of "covering the field" is a well-known concept under s. 109 of the Commonwealth Constitution where Federal legislation may by implication occupy a whole subject matter to the exclusion of State legislation earlier or later, it is not one which I find can be so readily applied in respect of the legislation of one legislature under one sovereign law making power. The problem is discussed by Fullagar J. in Butler v. Attorney-General (Victoria) (1961) 106 CLR 268 at 276: It should be pointed out in this connec­tion that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s. 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, a paramount legislature, and there can be no presumption either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legis­lature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant (our emphasis). In the absence of an express provision (in one or another statute) that exclusive jurisdiction is conferred or that the rights conferred are to the exclusion of any other rights, it is always a question of construction of all relevant statutes whether the legislature intends such exclusiveness of jurisdiction or exclusion of other rights. 70 See also Saraswati v R [1991] HCA 21; 172 CLR 1 at 17 where Gaudron J stated: It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. 71 It follows from what we have said that the mere conferral of a function on the Director-General to determine the staff positions in the Teaching Service (including the teaching positions in schools) is not, by itself, inconsistent with the Commission's power to make awards relating to staff positions. However, given the decisions in the Government Employees Redundancy case (CA), Government Employees Redundancy case (IRC), and in Steele, the question remains whether the power to make an award dealing with teachers' staffing entitlements may be affected or amended by s 7(1)(b). 72 In the Motor Vehicle Allowances case the Full Bench concluded that there was power to make the award notwithstanding the provisions of s 133(2)(h) of the Public Service Act. It seems to us that the function of the Director General to classify schools and to determine staff positions is conceptually little different from the power of the Public Service Board in s 133 to make regulations in relation to the transfer (s 133(2)(e)); hours of officers (s 133(2)(f)) and travelling and other subsistence allowances for staff in the Public Service (s 133(2)(h)). As in the Motor Vehicle Allowances case, it is the lack of specificity of the provision that leads to a different result to that found in the Government Employees Redundancy case (CA) and in Steele. 73 In the Government Employees Redundancy case (CA) the legislation (ss 113 and 114 of the Public Service Act) laid down precisely what was to happen in relation to excess staff and excessive salaries. In Steele, ss 112 and 115(2) of the Public Service Act also laid down what was to happen in relation to transfers and in relation to a refusal by an officer of promotion, appointment or transfer. That is to say, these provisions laid down a specific statutory scheme or procedure, with the decision-making function being allocated to the Minister, Department head or Board as the case may be. In doing so the provisions demonstrated the existence of a negative implication. In contrast, s 7(1)(b) of the TS Act is a general enabling provision similar to what was considered in the Maximum Class Size and Motor Vehicle Allowances cases and gives no indication of a "contra indication" or negation of the general intent of s 5 so as to preclude the making of an award as sought: see Motor Vehicle Allowances case at 296. To paraphrase what was said in the Motor Vehicle Allowances case at 295, if an award were to be made in the terms sought, the consequence would not be to render inoperative s 7(1)(b). It would simply mean that if the Department head was to exercise the power under s 7(1)(b) there would be two sets of rights and obligations, one under the determination by the statutory employer and the other by award of an industrial tribunal. Any inconsistency between the award and the determination would be resolved by the ordinary rules of statutory interpretation. 74 Accordingly, we conclude that the combined operation of s 5 and s 7 of the TS Act does not preclude the making of an award in the terms of the application in this matter. Whether Director-General's power to determine conditions of employment is qualified 75 It was submitted for the applicant that staffing entitlements for teachers were conditions of employment for those teachers. The applicant referred to provisions of the TS Act, which it contended qualified the general power of the Director General to determine conditions of employment. These provisions were: 13 Determination of conditions of employment (1) Except in so far as provision is otherwise made by law, the conditions of employment, including salaries, wages or other remuneration, of members of the Teaching Service are to be determined from time to time by the Director-General. (2) This section does not apply in relation to the remuneration of, or allowances payable to, senior executive officers in the Teaching Service. 14 Agreements relating to industrial matters (1) The Director-General may enter into an agreement with any association or organisation representing any group or class of officers or temporary employees as to any industrial matter. (2) Any such agreement binds all officers and temporary employees in the class or group affected by the agreement and no such officer or temporary employee, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement. 76 The applicant submitted that a provision that is otherwise made by law, as set out in s 13(1) of the TS Act, included an award of the Commission: see Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 450.5. These provisions of the TS Act relating to conditions of employment, it was submitted, further negatived any implication that the IR Act was amended or affected by s 7(1)(b). 77 Given our conclusion that s 7(1)(b) of the TS Act does not preclude the making of an award in the terms sought, it is unnecessary to rule on this aspect of the applicant's submission. PRIVATIVE GROUND Submissions of the parties 78 As an alternative to its primary contention, the respondent submitted that the jurisdictional power of the Commission to make the award sought was withdrawn by operation of s 47A(9) of the TS Act in respect of "senior positions". 79 The term "senior positions" is defined in s 4(1) of the TS Act to mean "any position in the Teaching Service to which a person employed in the Teaching Service could be promoted". The respondent contended that the term would include, for the purposes of the award claim, the following positions: (a) Principals; (b) Deputy Principals; (c) Assistant Principals; (d) Head Teachers; (e) Executive positions and executive relief staff. 80 Section 47A is in the following terms: 47A(1) This section applies to and in respect of appointments under section 47 to senior positions in the Teaching Service. (2) Appointments to vacant senior positions are to be made by the Director-General. It does not matter whether the person appointed to such a position is or is not already an officer. (3) If it is proposed to make an appointment to a vacant senior position, the Director-General must advertise the vacancy in such manner as the Director-General thinks appropriate. Without limiting the manner in which the vacancy is advertised, the advertisement is to be in a form that is accessible to persons who are not employed in the Teaching Service. (4) Appointments to vacant senior positions are to be made by the Director-General on the basis of the merit of the applicants for appointment. (5) For the purpose of determining the merit of persons eligible for appointment to a vacant senior position, the Director-General is to have regard to: (a) the nature and duties of the position, and (b) the abilities, qualifications, experience, standards of work performance and personal qualities of those persons that are relevant to the performance of those duties. (6) In deciding to appoint a person to a vacant senior position: (a) the Director-General may only select a person who has applied for appointment to the vacant position, and (b) the Director-General must, from among the applicants eligible for appointment to the vacant position, select the applicant who has, in the opinion of the Director-General, the greatest merit. (7) Despite subsection (3), the Director-General need not advertise a vacant senior position if the Director-General proposes to make an appointment to the position from an eligibility list created by the Director-General in relation to the position (being of a list of those persons who applied for appointment to the position and who are eligible for appointment but not selected for appointment, as arranged in order of merit as determined in accordance with subsection (5)). (8) Any such eligibility list is applicable not only to the position in relation to which it was created but also to any other position that the Director-General determines it should be applicable to on the basis that the position is substantially the same as the position in relation to which the list was created. (9) The appointment or failure to appoint a person to a vacant senior position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. This subsection applies whether or not any person has been appointed to the vacant senior position. (10) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a senior position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (11) Subsection (10) does not affect the operation of section 60. 81 The respondent submitted that the question was whether the Commission had power to make an award setting minimum staffing levels for senior positions at schools and requiring the respondent to fill those positions. In Re Crown Employees (NSW Fisheries, Salaries and Conditions of Employment) Award (2003) 129 IR 369 ("Fisheries case") the respondent submitted the Full Bench of the Commission addressed a similar question in the context of parallel statutory provisions dealing with public sector employment and found the Commission did not have power to make such an award. 82 Accordingly, it was submitted, the Commission ought dismiss so much of the claim as it seeks to set minimum staffing levels for senior positions at schools by virtue of the operation of s 47A(9) of the TS Act. 83 As to the respondent's privative submissions the applicant acknowledged that previous decisions had taken a broad approach to the interpretation of provisions similar to s 47A. For example, Public Service Association (NSW) v Public Service Board (NSW) (1986) 14 IR 414 ("Ombudsman's case"), New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 [1999] NSWIRComm 234 ("TAFE case") and the Fisheries case. 84 However, it was submitted the statutory context of the privative provision in the TS Act was quite different. In particular, the privative provision appeared as a sub-section in a section dealing in detail with the processes to apply when making specific appointments to senior positions under the Act. Reference was made to the second reading speech introducing the Teaching Services Amendment Bill 2004 (Hansard, Legislative Assembly, Tuesday, 26 October 2004): Two definitions are fundamental to this bill. The first is the term "senior position". This new term is defined in the bill as "any position in the Teaching Service to which a person employed in the Teaching Service could be promoted". The second key term defined in the bill is "merit". The bill adopts definitions of "merit" that are currently used elsewhere in New South Wales public sector employment legislation. In particular, "merit" is defined in essentially the same terms as in the Public Sector Employment and Management Act 2002. Merit of persons seeking appointment to a vacant position is to be determined by having "regard to the nature and duties of the position and to the abilities, qualifications, experience, standards of work performance and personal qualities of those persons that are relevant to the performance of those duties". It also reflects the definition of "merit" contained in the Technical and Further Education Commission Act 1990, which applies to the appointment and promotion of TAFE teachers by the Technical and Further Education Commission. For too long we have had a system which, while based on merit, did not necessarily ensure the best possible candidate for each vacant position. This bill rectifies that anomaly. Section 47A(2) requires that all appointments to vacant senior positions are to be made on the basis of merit. Section 47A(5) requires the director-general to determine the comparative merit, as defined, of persons seeking appointment. No longer will it be a requirement for appointment to a senior position that the person be currently employed as an officer of the Education Teaching Service. Unlike the rest of the public sector in New South Wales, and employment in the rest of the community throughout Australia, there was no capacity for good candidates from outside the system to throw their hats in the ring. In effect we were saying, "We welcome everyone to be a teacher, but if you are outside the system, you will have to start as a classroom teacher, no matter what your previous experience." Now, with this bill, good teachers from public schools interstate, or good teachers from non-government schools who want to make a contribution to public education, will get that chance. We have the best teachers and principals in our system, and we want to make sure that we will be able to continue to attract the best to our public schools. Our students deserve it, and their parents expect it. … Finally, I wish to clarify for the House the reason for some of the additional machinery provisions that have been included in proposed section 47A. In relation to merit appointments, I have indicated that the bill has relied on the definition of "merit" in the Public Sector Employment and Management Act 2002. It is entirely appropriate, then, that the bill also picks up the other associated provisions from that Act, such as section 18, relating to advertising of positions, and section 22, relating to legal proceedings in relation to appointments. These reforms are commonsense, practical improvements that will strengthen the public education system in New South Wales (applicant's emphasis). 85 The applicant submitted that although reference was made to s 22 of the Public Sector Employment and Management Act in the second reading speech, Part 2.3 of that Act, in which s 22 is found, was not identical to s 47A of the TS Act. It was submitted that what was intended by the inclusion of s 47A(9) was that there was exclusion of the Commission's jurisdiction in relation to appointments to specific positions in order that the merits of those appointments not be subject to scrutiny by the Commission. The fact that s 22 had been construed more broadly than that in previous decisions did not mean that the broad interpretation applied to s 47A(9), where the context in which it appeared was significantly narrower than where s 22 and similar provisions had appeared in other statutes. 86 It was further submitted that properly analysed, the provisions prescribing minimum staffing levels for senior positions directly affected and provided entitlements to teachers not in senior positions, as well as those in senior positions, working at schools. 87 Thus, it was submitted, the provisions prescribing minimum staffing levels for senior positions should be characterised as entitlements applying after the appointment of teachers already working in schools. 88 In the alternative, the applicant submitted that if a broad approach was taken to s 47A(9), its application depended on the characterisation of the clauses of the proposed award. The applicant submitted that the clauses providing for maximum teaching hours and circumstances in which face to face teaching shall not take place could not possibly be precluded by s 47A(9) of the TS Act as, on any view, they were conditions that applied after appointment. The applicant accepted that if the broad interpretation of s 47A(9) applied, that the clauses prescribing requirements for actual allocation of staff, in so far as they applied to senior teachers, were precluded by s 47A(9) of the TS Act, because they directly affected the appointment process. 89 However, it was not accepted, even if the broad interpretation of s 47A(9) applied, that the clauses setting minimum teacher numbers applicable to various circumstances were precluded by s 47A(9) of the TS Act. These clauses did not necessarily affect appointments at all and if they did, they only affected appointments indirectly. By way of contrast, it was submitted, the cases in which a privative provision had been found to exclude the award/order being sought in the Commission or its predecessors had directly and/or necessarily affected appointments: (i) In the Ombudsman's Case an award or order was sought to restrain the filling of positions as investigating officers in the Ombudsman's office as temporary, rather than permanent, appointments. (ii) In the TAFE Case the Award sought to appoint existing temporary staff to permanent positions, thus involving the actual process of creation of vacant permanent positions and appointment to those positions, as set out in the findings of the majority. (iii) In the Fisheries Case the Full Bench found that the proposed award necessarily required the appointment of persons to positions as follows: [82] The Association urges us to find that the proposed award, as drafted, requires an increase in staffing levels but does not require the creation of positions or the appointment of persons to those positions. Although the Association has offered an innovative submission as to how we may arrive at such a finding, in our view neither that process nor the conclusion is available. [83] We agree with the respondents that the proposed award requires the creation of 35 new positions, and the appointment of 35 new Fisheries Officers to those positions. This, in our view, is the true character of the present application. Consideration 90 In the Fisheries case the Full Bench considered a jurisdictional question about whether the Commission had the power to make an award setting mandatory minimum staffing levels for full-time Fisheries Officers such as to require NSW Fisheries to employ an additional 35 Fisheries Officers and maintain an establishment of 97 Fisheries Officers for the term of the proposed award to be known as the Crown Employees (New South Wales Fisheries - Staffing Levels for Full Time Fisheries Officer Positions) Award. 91 The jurisdictional issue arose in the context of the provisions of the Public Sector Employment Management Act 2002 ("PSEM Act") insofar as it dealt with the appointment or failure to appoint a person to a vacant position in the Public Service. The relevant provision was s 22 which was in the following terms: 22 Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. 92 The Full Bench noted that s 22 of the PSEM Act was relevantly similar in its terms to s 27 of the Public Sector Management Act 1988 and s 65A of the Public Service Act 1979. The significance of this was that both s 27 of the 1988 Act and s 65 of the 1979 Act had been the subject of consideration in the Ombudsman case and the TAFE case. In the proceedings, counsel for the applicant Association sought leave to re-argue the Ombudsman case. That was necessary because, as counsel conceded, the decision in that case was directly contrary to the applicant's primary contentions in the matter. 93 The Full Bench held (at [80]) that the Ombudsman case could not be distinguished from the matter presently under consideration in the way the applicant Association contended. Further, the Full Bench stated: [82] The Association urges us to find that the proposed award, as drafted, requires an increase in staffing levels but does not require the creation of positions or the appointment of persons to those positions. Although the Association has offered an innovative submission as to how we may arrive at such a finding, in our view neither that process nor the conclusion is available. [83] We agree with the respondents that the proposed award requires the creation of 35 new positions, and the appointment of 35 new Fisheries Officers to those positions. This, in our view, is the true character of the present application. [84] There are relevant similarities between the award sought in the present case and those sought in the Ombudsman and TAFE cases, being the failure to appoint a person in accordance with general policy and the creation of part-time positions respectively. Given that we do not accept the Association's proposed construction of s65A of the 1979 Act in the Ombudsman case, we similarly do not agree with the Association's submissions regarding the interpretation of s22 of the 2002 Act. The Association accepted that the legislation under consideration in the Ombudsman case was relevantly similar to the 2002 Act presently being considered. As earlier stated, and notwithstanding the Association's submissions to the contrary, we accept that the proposed award requires the creation of positions and the appointment of persons to those positions. That being the case, the Association has failed to demonstrate that the proposed award, as properly characterised, can be distinguished from the award sought in the Ombudsman case. [85] We note that Mr Chin conceded that if the Association was wrong on this point, the application for the proposed award must fail. In this respect, Mr Chin stated in oral submissions that "if the Commission determines that the award the subject of these proceedings, requires the creation of new positions within the meaning of the [2002 Act] and the appointment of persons thereto, then the broad interpretation put by the respondent consistent with the Ombudsman case would seem to oust jurisdiction … If, as it says from the Ombudsman case, section 22 and its predecessors apply beyond individual appointments to particular positions, then it is conceded the Ombudsman case does stand as an obstacle to our submission as to the scope of s22". 94 As to the applicant's contention that s 22 did not operate to oust jurisdiction because there was no relevant appointment to a "position" that was "vacant" within the meaning of the PSEM Act, the Full Bench held as follows: [87] Part 2.3 of the [PSEM] Act deals with the appointment process within the public service generally. Section 22 is but one part of that process, dealing with the circumstances in which proceedings may be brought in respect of any particular appointment (or failure to appoint). The Association's argument that s22 refers only to 'officer' positions (not temporary or casual positions) which are 'vacant' as defined by s26 of the 2002 Act (not new positions created by the proposed award) necessarily means, and Mr Chin conceded that it means, properly in our view, that the whole of Part 2.3 of the 2002 Act must have a similar interpretation. [88] We accept the respondent's submission that the interpretation of s22 (and therefore of Part 2.3) proposed by the Association would produce an absurdity in the appointment process within the Public Service. To accept the Association's argument would be to accept that Part 2.3 regulates the appointment of casual and temporary employees, but not permanent employees. Notwithstanding the able and innovative argument put by Mr Chin, we do not agree with the Association's contentions in that respect. [89] Further, we do not accept the Association's argument that a position created by the proposed award is not vacant within the meaning of s26 of the 2002 Act. 95 The applicant acknowledged that the Commission in the Fisheries, Ombudsman and TAFE cases had taken what it described as a "broad approach" to the interpretation of provisions similar to s 47A(9) of the TS Act. Nevertheless, it contended the statutory context of s 47A(9) in the TS Act was quite different to the contexts considered in the other cases and that s 47A(9) only applied to specific cases of appointment or failure to appoint. 96 As the respondent pointed out, the submission by the applicant that the privative provision that is s 47A(9) only applied to specific cases of appointment or failure to appoint, was precisely the submission put by the applicant Association in the Ombudsman case in respect of s 65A(1) of the Public Service Act 1979. That section is, for relevant purposes, the same as s 47A(9). In the Ombudsman case the Full Bench said of this submission at 416: Mr Shaw for the Association would have us read down this section so that, having in mind the purpose which he claimed it was intended to achieve, it should be taken as applying to individual appointments or promotions only and not to the broad general issue, the subject of the claim. It was relevant, in this respect, he submitted, to look to see, in accordance with the rule in Heydon's case (1584) 3 Coke 7(a) at 7(b), at which "mischief" the amendment has been directed (see Public Service Association (NSW) v Industrial Commission (NSW); Re Redundancy supra and BLF Deregistration case (1985) 1 NSWLR 197). We are not very much assisted, however, either by the interesting discussion of the basis for the measure, as appears in the second reading speech when the amendment was before Parliament, or by reference to the Department of Tourism case, to which certain aspects of s 65A are obviously directed. It is clear that the section goes well beyond the circumstances of the case mentioned. Neither that case nor the second reading speech provides a basis for inferring the confined interpretation for which Mr Shaw contends. It is an interpretation which would require us to read the word "person" in s 65A(1) in the singular, despite normal canons of construction and s 21(b) of the Interpretation Act 1897 [sic]. We are satisfied that the words used in s 65A(1) must be interpreted as they stand, in what are, in our view, wide and unequivocal terms. 97 The applicant Association in the Fisheries case sought to re-argue the Ombudsman case. However, the Full Bench agreed with the findings in the Ombudsman case that the language in s 65A was "plain and unequivocal": see [64]. 98 The applicant submitted, however, the context was different in respect of s 47A(9) thereby giving it a different meaning to s 22. We do not agree. Section 47A(9) was "picked up" by the legislature from s 22 of the PSEM Act when it enacted the Teaching Services Amendment Bill 2004, which inserted s 47A into the TS Act. It may be assumed, as the respondent submitted, that the legislature was aware of the decision of the Full Bench of the Commission in the Fisheries case handed down on 1 December 2003. Accordingly, if the legislature had intended to depart from the statutory construction so recently determined by the Commission in respect of the operative effect of s 22 of the PSEM Act when enacting a similar provision in the TS Act, one would have expected there would have been some indication of such an intention. In this connection, we consider the in pari materia principle applies. That is to say, s 47A(9) of the TS Act is used in pari materia with s 22 of the PSEM Act and, therefore, in the absence of a contrary intention it may be presumed the legislature intended to attach the same meaning to s 47A(9) as that which attaches to s 22 of the PSEM Act. 99 The applicant submitted that the proposed provisions prescribing minimum staffing levels for senior positions should be characterised as entitlements applying after the appointment of teachers already working in schools. The proposed award, amongst other things, seeks to determine minimum staffing levels for senior positions in schools. Any appointment or failure to appoint could only be made on the basis of what the award prescribed in respect of staffing levels. In other words, any vacancies in senior positions would depend on whether or not the staffing levels prescribed by the award were being met. Any appointment would be to fill the vacancy arising from the requirement to meet the staffing level prescribed by the award. 100 The exclusion of the Commission's jurisdiction effected by s 47A(9) extends to "any matter, question or dispute relating" to the appointment or failure to appoint a person to a vacancy in the position. If the Director General is required to make appointments to vacant senior positions according to staffing levels fixed by an award, we consider that those staffing levels are a matter relating to appointments and, therefore, outside the Commission's power pursuant to s 47A of the TS Act. 101 As for the applicant's submission that even if a broad construction is given to s 47A of the TS Act some of the claimed provisions, nevertheless, still survive, we agree that could be so. The proposed clauses providing for maximum teaching hours and circumstances in which face to face teaching shall not take place are not precluded by s 47A(9), as they are not relevantly related to the matter of appointments. The proposed clauses prescribing requirements for actual allocation of staff, in so far as they apply to senior teachers, are precluded by s 47A(9), because they directly affect the appointment process. NO FURTHER CLAIMS GROUND 102 As to the third ground relied upon by the respondent, it was submitted that a number of the claims in the proposed award contravened cl 33 – No Further Claims of the Teachers Award. Clause 33 provides: 33. No Further Claims 33.1 Except as provided by the Industrial Relations Act 1996, prior to 31 December 2008, there shall be no further claims by the parties to this Award for changes to salaries, rates of pay, allowances or conditions in relation to matters expressly contained in this award. 103 It was submitted that the no further claims provision prohibited further claims relating, inter alia, to conditions of employment: (i) being made prior to 31 December 2008; and which (ii) relate to matters expressly contained in the Award. 104 Additionally, it was submitted for the respondent that the proposed award dealt with matters already addressed in the current Teachers Award. Accordingly, that the Commission ought dismiss any claim in the present award application that deals with the same subject matter in the current Award. 105 The applicant submitted there was nothing in the proposed award that related to matters dealt with in the Teachers Award that constituted an extra claim. In any event, it was submitted, the no extra claims period expired on 31 December 2008; the applicant did not seek that an award be made or have an operative date before 31 December 2008. 106 Even if it could be said that the matters in the proposed award relate to matters that are dealt with in the current Teachers Award, and there must be some doubt about that, the purpose of a no further claims commitment is not to prevent a proper application being made for a new award prior to the Teachers Award expiring: see Re Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209 at [22] - [23]. There can be no objection in this case to the filing of the application. We do not consider this ground is sustainable. LIBERTY TO APPLY 107 Having decided on the questions raised by the respondent's notice of motion the most appropriate course is to leave it to the parties to consider what is now to be done regarding the application. Liberty to apply on reasonable notice. _________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.