Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities [2013] NSWIRComm 32 Hearing dates: 7 February 2013 Decision date: 26 April 2013 Before: Walton J, Vice-President; Staff J; Backman J Decision: We make the following orders: (1) Leave to appeal is granted; (2) The appeal is dismissed. Catchwords: APPEAL - application to vary the Crown Employees (School Administrative and Support Staff) Award to provide conditions of employment for redundancy pay and notice of termination for school administrative and support staff - jurisdictional question - Commission required by s 146C of the Industrial Relations Act 1996 ("the Act"), when making or varying any award or order, to give effect to any policy on the conditions of employment of public sector employees declared by the regulations to be an aspect of Government policy - whether Commission's power to vary award excluded or constrained by the policy stipulated in cl 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 - question of construction - principle of statutory construction - whether the "policy" to be given effect to by the Commission is the policy expressed in cl 6(1)(f) per se, or an extant policy regarding the management of excess public sector employees - found: cl 6(1)(f) precludes exercise of power otherwise residing in the Commission under the Act - leave to appeal granted - appeal dismissed Legislation Cited: Education (School Administrative and Support Staff) Act 1987 Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Cases Cited: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 214 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; (1997) 141 ALR 618; (1997) 71 ALJR 312 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 Monis v The Queen [2013] HCA 4; (2013) 87 ALJR 340 New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment (2012) 293 ALR 450 Re Crown Employees (School Administrative and Support Staff) Award [2012] NSWIRComm 127 Visy Paper Pty Limited and Others v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Appellant) Department of Education and Communities (Respondent) Representation: M Gibian of counsel (Appellant) M J Easton of counsel (Respondent) W.G. McNally Jones Staff (Appellant) Crown Solicitor's Office (Respondent) File Number(s): IRC 1210 of 2012 Decision under appeal Citation: Re Crown Employees (School Administrative and Support Staff) Award [2012] NSWIRComm 127 Date of Decision: 2012-11-16 00:00:00 Before: Boland J, President File Number(s): IRC 775 of 2012 DECISION 1Section 146C of the Industrial Relations Act 1996 ("the Act") requires the Industrial Relations Commission of New South Wales ("the Commission"), when making or varying any award or order, to give effect to any policy on the conditions of employment of public sector employees that is declared by 'the regulations' to be an aspect of Government policy that is required to be given effect to by the Commission: Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment (2012) 293 ALR 450 at [1] per French CJ ("PSA"). 2Thus, s 146C envisages the making of regulations that, in the circumstances to which they apply, govern what award may be made and what orders may be made varying an existing award: PSA [55] and [58] per Hayne, Crennan, Kiefel and Bell JJ. In this sense, s 146C(1)(a) sets the parameters for the Commission's exercise of statutory powers without directing the outcome of particular proceedings: PSA at [70]. 3The Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ("the Regulation") is a regulation declared for the purpose of s 146C and states policies affecting public sector employment. 4Depending upon their terms, those policies, variously, have the effect of constraining, limiting or qualifying the exercise of the power conferred upon the Commission under the Act: PSA at [17], [58] and [69]. To that extent, such policies constrain, as a matter of law, the powers otherwise residing in the Commission under the Act or, as the Chief Justice observed in PSA, "a policy declared by a regulation made under s 146C may pre-empt judgments by the commission of those matters": at [17]. 5Sections 10 and 146 of the Act are expressly subordinated to s 146C by the operation of s 146C(7) and "thereby, to any declared policy upon conditions of employment": PSA at [17]. The subordination, so described, also extends, by virtue of s 146C(7), to "any other provision of this or any other Act". It follows that the Commission's powers under s 21(1)(c), which feature in these proceedings, are subordinated to any relevant declared policy within the purview of s 146C, notwithstanding the mandatory nature of the preamble contained within s 21(1). (We note that limitation is also consistent with the provisions of s 21(2)(a) of the Act.) 6The Chief Justice discussed the meaning of the expression 'policy' in PSA (at [39] - [40]) as follows: 39. As to the first question, the relevant ordinary meaning of the word "policy" is "a course or principle of action adopted or proposed by a government, party, business, or individual"[85]. The first limb of that definition sits awkwardly with the requirement that the Commission "give effect to" the relevant policy. Section 146C(1), however, readily accommodates the concept of "policy" as a principle or principles adopted or proposed by government. That meaning of the word "policy", particularly in a context in which it gives content to delegated legislation, does not extend to a policy which is ambulatory. That is to say, it does not extend to a policy which requires compliance with future variations of its terms or with future ministerial directions. 40. The word "policy" has a range of possible applications, from the specific to the general. An example of the constructional choice which that range may present was considered by the Full Court of the Federal Court in Leppington Pastoral Company Pty Ltd v Department of Administrative Services[86]. The scope of a "policy" which could be stated in a ministerial pre-acquisition declaration under s 22(5) of the Lands Acquisition Act 1989 (Cth) defined a field of enquiry from which the Administrative Appeals Tribunal was precluded in reviewing the declaration. The Full Court rejected a construction of "policy" in s 22(5) which would extend to a proposal to acquire a particular parcel of land. The Court observed[87]: 7Further, at [44] and [45], his Honour discussed, in a manner helpful to the disposition of this appeal, the meaning of the expression 'policy' within the context of s 146C of the Act, as follows: 44. Government policy is the product of executive activity. When declared by a regulation of the kind contemplated by s 146C, it becomes part of the content of legislation. All legislation reflects policies attributable to the legislature but, in many if not most cases, they are policies originating with the executive government as the proponent of most statutes enacted by the parliament. The use of the word "policy" in s 146C does not alter the constitutional character of the class of regulation to which it refers. The point should also be made that the mechanism created by s 146C, read with the regulation-making power in s 407, differs from an Act or regulation which authorises a Minister to do an executive act to which the Act or regulation attaches legal consequences. Examples in the latter class include provision for the making of a ministerial direction which must be complied with[89], or a determination of the price of a specified class of goods[90]. 45. The application by the Commission of a regulation of the kind contemplated by s 146C does not involve the Commission in giving effect to an executive direction. It is simply required to apply the law as set out in the IR Act and the relevant regulation, which incorporates by reference the principles set out in a policy declared by the regulation. Such a policy could be embodied in the text of the regulation itself without any need to separately identify it as a "policy". There is no relevant constitutional distinction to be drawn between the making of a regulation which creates decision-making rules that have been formulated by the executive government to give effect to its policies, and the making of a regulation which incorporates by reference a statement of a policy setting out those rules. 8The policies in the Regulation are in two tiers. The Regulation declares paramount policies (see cl 5) and then "other policies (which are susceptible to the paramount policies)". There are six such policies which are expressed as follows: (a) Public sector employees may be awarded increases in remuneration or other conditions of employment that do not increase employee-related costs by more than 2.5% per annum. (b) Increases in remuneration or other conditions of employment that increase employee-related costs by more than 2.5% per annum can be awarded, but only if sufficient employee-related cost savings have been achieved to fully offset the increased employee-related costs. (c) For the purposes of achieving employee-related cost savings, existing conditions of employment of the kind but in excess of the guaranteed minimum conditions of employment may only be reduced with the agreement of the relevant parties in the proceedings. (d) Awards and orders are to resolve all issues the subject of the proceedings (and not reserve leave for a matter to be dealt with at a later time or allow extra claims to be made during the term of the award or order). However, this does not prevent variations made with the agreement of the relevant parties. (e) Changes to remuneration or other conditions of employment may only operate on or after the date the relevant parties finally agreed to the change (if the award or order is made or varied by consent) or the date of the Commission's decision (if the award or order is made or varied in arbitration proceedings). (f) Policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments. 9It was the last of those policies which attracted attention in this matter (the policy in cl 6(1)(f) shall be referred to as "the policy"). 10At the epicentre of this appeal lies a contention brought by the Director-General, NSW Department of Education and Communities (the respondent to the appeal and below - hereinafter described as "the Department") that or to the effect that (the contention lacked the clarity which would normally have accompanied a Notice of Motion, if one had been filed) the Commission lacked jurisdiction or power to grant an application brought by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") to vary the Crown Employees (School Administrative and Support Staff) Award ("the award") so as to provide conditions of employment for, to use the broad heading utilised in the application brought at first instance, "Redundancy Pay and Notice of Termination" for school administrative and support staff ("SAS staff") because the Commission's power to do so was excluded or constrained by the policy stipulated in cl 6(1)(f) of the Regulation. 11There was no dispute, correctly in our view, that the engagement of SAS staff by or through the Department pursuant to the provisions of the Education (School Administrative and Support Staff) Act 1987, constitutes, for the purposes of s 146C(8) of the Act, public sector employment, such that an application to vary an award regulating the conditions of employment for that class of employee is caught by the provisions of s 146C, and regulations made under that section. 12Nor was there any dispute that, but for the policy stated in cl 6(1)(f) of the Regulation, the application to vary the subject award would be amenable to the jurisdiction of the Commission under the Act. The PSA was entitled to bring the application within industrial dispute proceedings under Pt 1 of Ch 3 of the Act (see s 136(1)(b)). The application concerned the establishment of conditions of employment for SAS staff whose positions with the Department (and for that matter, in the public sector) may become "excess" to requirements (or, to adopt a more commonly used expression in employment law, "redundant"). The application, to the extent it provided for such things or, more generally (in that sense), entitlements for employees terminated from employment, was plainly an industrial matter (see s 6(1) and, in particular, s 6(2)(e)) and subject to the provisions of s 10 of the Act). Further, the application may be properly characterised as an employment protection provision (pursuant to s 21(1)(c)), at least insofar as the application sought provisions for redeployment of redundant employees and made arrangements for consultation as to the same. 13This discussion (as to uncontroversial matters) leads to a further element in the chain of reasoning (although not one necessarily reached by an express concession), namely, that the subject matter of the application, or put slightly differently, the true character of the application is encompassed by or falls within the meaning of the phrase "the management of excess public sector employees" in the policy. Put simply, and expanding upon the meaning of the word 'management' in that phrase, the application seeks to manage, direct, control or regulate the circumstances under which SAS staff may become or be made excess staff in the Department. 14What, then, is the issue raised by this appeal? The answer to that question may be best achieved by, firstly, providing a brief reference to the factual background to this matter. 15The application was made in a context in which there were no existing legislative or award provisions establishing conditions of employment of the kind sought in the application. In particular, there were no employment protection provisions in the award. Nor was there any Governmental policy for the management of excess SAS staff. 16Historically procedures were in place to ameliorate the effect of changes in the demand for SAS staff from time to time (by, for example, a priority transfer policy). However, the changes envisaged by the Department in 2012 offered the very real prospect that the employment security of SAS staff may, for the first time, be significantly at risk. 17Immediately before the hearing of the application by Boland J at first instance, the Department promulgated a policy known as the "Managing Excess School Administrative Support Staff Policy" ("SAS staff policy"). It applied, at least, to SAS staff permanently engaged by the Department and concerned, to borrow the phrase used in the policy, the management of excess SAS staff. 18When fully developed, the Department's contentions were that the Commission's jurisdiction or power to fix conditions of employment governing excess SAS staff, as contemplated by the application, was excluded by the policy promulgated in cl 6(1)(f) of the Regulation. This, it was submitted, arose because of the constraint on the Commission's powers deriving from the requirements of s 146C(1), namely, to give effect to the policies stipulated in the Regulation. Thus, the Department's contention did not depend upon whether or not the Department had promulgated the SAS staff policy (or any anterior or posterior policies dealing with the subject matter of excess staff or redundancy). 19The PSA contended that the only limitation to the jurisdiction and powers of the Commission to determine the application was that, by the policy, the Commission was precluded from incorporating, wholly or by reference, the SAS staff policy (or any other such extant policy dealing with excess SAS staff) into the award. The limitation operated only with respect to the 'incorporation' of an extant policy, and nothing in cl 6(1)(f) precluded the Commission from making a provision for "the treatment of employees in the event of redundancy" or varying an award in any manner inconsistent with any policy "adopted by the government with respect to excess employees" (this was a reference to both the policy and the SAS staff policy). 20The conclusions reached by Boland J at first instance, found in Re Crown Employees (School Administrative and Support Staff) Award [2012] NSWIRComm 127 at [91] - [99], in relation to these issues (or at least the variant of them argued at first instance) can be summarised as follows: (1)The cardinal rule of statutory interpretation, having regard to recent High Court authorities on the subject, was that the process of construing statutory provisions "begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose" (referring to Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 per French CJ, Hayne, Kiefel and Bell JJ at [26]); (2)Section 146C required the Commission, when making or varying any award or order, to give effect to any policy on conditions of employment of public sector employees that is declared by the regulations to be an aspect of Government policy that is required to be given effect to by the Commission, and that applies to the matter to which the award or order relates; (3)The definition of public sector employee in s 146C was broad enough to cover SAS staff; in respect of SAS staff, it followed, the Commission was required to give effect to any policy on conditions of employment declared by the regulations to be an aspect of Government policy; (4)Clause 6(1)(f) declared, for the purposes of s 146C, a policy, namely, that "Policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments"; (5)There was in existence a policy for managing excess SAS staff and, by cl 6(1)(f), the Commission was constrained from incorporating that policy into an award. Whilst the PSA was not seeking to incorporate the SAS staff policy per se into an award, it was reasonably apparent that the legislative purpose of cl 6(1)(f) was to ensure the long-established practice of managing excess employees through the medium of Government policy rather than award prescription was maintained; (6)To make an award in the terms sought by the applicant would render the policy for managing excess SAS staff ineffective both where it was inconsistent with the award and, indeed, in its entirety (given the policy was effectively a package of measures). To do so would be contrary to the purpose of cl 6(1)(f); (7)The limitation on the Commission, given the purpose underlying cl 6(1)(f), to make an award or order inconsistent with the provisions of the policy does not prevent the Commission exercising its conciliation and arbitration powers in the event of a dispute situation provided it did not make an award or order inconsistent with the provisions of the policy. For example, an order under the unfair dismissal provisions of the Act would not be inconsistent with the policy, which is limited to managing excess SAS staff; (8)The Commission was precluded, by cl 6(1)(f), from varying the award in the terms sought by the PSA. Submissions of the Parties Submissions for the PSA 21Mr M Gibian of counsel made oral and written submissions on behalf of the PSA which, taken as a whole, are summarised as follows: (1)The principal question raised in the appeal concerned the proper construction of cl 6(1)(f) and whether the Commission was precluded by that provision from varying the award in the manner sought by the PSA. The President, at first instance, erred in concluding that, properly construed, cl 6(1)(f) so precluded the Commission, and in attributing a meaning to the provision which was inconsistent with its express terms; (2)The contention of the respondent that the "policy" required to be given effect to by the Commission is that the management of excess employees is to be dealt with by way of policy cannot be sustained for the following reasons: firstly, it finds no foundation in the words used in s 146C or cl 6(1)(f); secondly, there was identified no extrinsic or other material to support the "purpose" attributed by the respondent to cl 6(1)(f); and, thirdly, it gives a provision that limits the jurisdiction of a statutory tribunal an overly broad construction contrary to established approaches to statutory construction; (3)It was accepted that, in enacting s 146C, the legislature intended to curtail the powers of the Commission to make awards and orders (so much is made clear by s 146C(3) and (7) of the Act). However, the extent to which the powers of the Commission are curtailed depends upon the terms of the regulation made; (4)The meaning attributed to cl 6(1)(f) at first instance appears to have been that the Commission "may not make an award or order inconsistent with the provisions of the Policy". His Honour did not attempt to base the meaning attributed to the provision in the words used in cl 6(1)(f) itself. Rather, the meaning attributed to the provision is said to arise from "the purpose underlying cl 6(1)(f)". In adopting that approach, his Honour departed from the proper approach to statutory construction and attributed a meaning to cl 6(1)(f) which cannot be reconciled with the words of the provision; (5)Clause 6(1)(f) has a straightforward meaning consistent with the ordinary language used and the background to its creation. The wording of the clause is clear and limited. The plain words of the clause make clear that the "policy" to which the Commission is required to give effect is that an extant policy regarding the management of excess public sector employees may not be incorporated in an industrial instrument, that is, the policy must not be included in (wholly or by reference) and given force as part of an industrial instrument. The provision does not go further. There is nothing in cl 6(1)(f) which suggests it was intended that the subject matter of excess public sector employees was intended to be taken outside the jurisdiction of the Commission; (6)The context in which cl 6(1)(f) was made supports the construction proposed by the PSA. There have existed for many years, published policies dealing with the management of displaced or excess public sector employees. The ordinary meaning of the words in the sub-clause, when read in that light, lead to the conclusion that the sub-clause operates only to preclude those policies from being incorporated into industrial instruments; (7)In the alternative, his Honour erred in failing to give separate consideration to each part of the PSA's application to vary the award. For example, in particular, his Honour failed to separately consider whether the term sought by the PSA could be included in the award insofar as it had application to long-term temporary employees. All temporary employees, including long-term temporary employees, are excluded from the operation of the SAS staff policy; even on the approach adopted by the President, there could not be said to be any inconsistency between the SAS staff policy and the award provision sought by the PSA insofar as it was sought to be applied to temporary employees; (8)There is no policy regarding the management of excess public sector employees within the SAS staff policy. If, as found by the President at first instance, the test is whether the award sought is inconsistent with an applicable policy, there is no impediment to the Commission varying the award as sought by the PSA with respect to long-term temporary employees. Submissions for the Department 22Mr M J Easton of counsel made oral and written submissions on behalf of the Department which, taken as a whole, are summarised as follows: (1)The fundamental issue on appeal went to the construction of cl 6(1)(f). When the provisions of s 146C and cl 6 (1)(f) are properly construed, the "policy" to be given effect to by the Commission is that the management of excess employees is to be dealt with by way of policy; (2)The contention of the PSA that the President, at first instance, focussed his approach to statutory construction on the legislative purpose without regard for the words used should be rejected. His Honour undertook a textual analysis; so much is reflected in the decision below, for example, at [92], where his Honour identified the requirement upon the Commission under s 146C to "give effect" to any policy on conditions of employment of public sector employees that is relevantly declared by the regulations - thereby properly having regard to the words used in s 146C; (3)The words used in s 146C and cl 6(1)(f) should be considered in their context, including, for example, the fact that the management of excess public sector employees has been regulated by way of policy and not by way of awards for a long period of time; (4)The term "give effect" in s 146C is broad, recognising the 'substance' within the Commission's award making powers over the 'form' in which such powers might be used; (5)The jurisdictional "touch point" is that policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments, not whether the proposed award is inconsistent with the policy such that it could not be made; (6)The words used in s 146C and cl 6(1)(f), that the Commission must "give effect" to the declared policy, cannot be read down to mean, as submitted by the appellant, only that "the policy must not be included in (wholly or by reference) and given force as an industrial instrument". If it were so read down, the Commission would be able, in the result, to make an award in substantially the same terms as the policy (provided it was not in exactly the same terms). As observed by his Honour below, the making of an award in different terms to the policy would render the policy ineffective where inconsistent with the award and certainly would not "give effect" to the "policy" of regulating the management of excess employees by way of policy. Such an outcome would be inconsistent with the textual and contextual indicators and the purpose of the statutory scheme; (7)In pressing the Commission to "provide appropriate protection for members of the SAS Staff in the event of possible or actual retrenchment", the application sought some conditions that were either different or in addition to the policy. Where such conditions add to or replace or enhance the policy, they do not "give effect" to the declared policy. If the award the Commission might make does not give effect to the policy but undermines, enhances, changes or renders it ineffective, then it is beyond the power of the Commission. Relevant Principles 23A central issue in this appeal concerns the construction of cl 6(1)(f). It was contended that Boland J had misunderstood or misapplied the principles applicable to that consideration. 24There are three recent High Court authorities which provide guidance as to the correct approach to statutory interpretation, namely, Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 412, Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32. Key principles, relevant to the present proceedings, can be distilled from these authorities: (1)The legal meaning of a provision of a statute is to be ascertained by processes of statutory construction: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J. Thus, the fundamental object of statutory construction is to ascertain legislative intention: Certain Lloyd's Underwriters at [88] per Kiefel J. However, the use of the metaphor 'legislative intention' must not mislead. This expression must be understood as the intention that the courts will impute to the legislature by a process of construction: Certain Lloyd's Underwriters at [88] per Kiefel J. The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J (applying Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 at [78] per McHugh, Gummow, Kirby and Hayne JJ); (2)Ordinarily, the legal meaning of a provision of a statute will correspond with the grammatical meaning, but not always: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J and at [68] per Crennan and Bell JJ (applying Project Blue Sky at [78] per McHugh, Gummow, Kirby and Hayne JJ). Nontheless, the process of statutory construction must begin with a textual analysis of the words of a provision - that is, a consideration of the ordinary and grammatical meaning of the words: Australian Education Union at [26] per French CJ, Hayne, Kiefel and Bell JJ; Barclay at [41] per French CJ, Crennan, Gummow and Hayne JJ; Certain Lloyd's Underwriters at [23] per French CJ and Hayne J. Although that initial step may involve the construction of the words of a provision in question when read in the context of the statute as a whole: Certain Lloyd's Underwriters at [88] per Kiefel J. Thus, the legal meaning is ascertained by reference to the language of the statute viewed as a whole: Certain Lloyd's Underwriters at [26] per French CJ and Hayne J and [88] per Kiefel J. The purpose of the statute resides in its text and structure: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J; (3)Context may also be considered "in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy.": Certain Lloyd's Underwriters at [88] per Kiefel J; (4)The context and purpose of a provision are important to its proper construction. Legal meaning may be ascertained by reference to general purpose, consistency and fairness: Certain Lloyd's Underwriters at [24] per French CJ and Hayne J; (5)The determination of the purpose of a statute or a particular statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, if appropriate, reference to extrinsic materials: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J. Whilst consideration of extrinsic materials should not displace the clear meaning of the text of a provision, the purpose of a provision may be elucidated by appropriate reference to them: Certain Lloyd's Underwriters at [70] per Crennan and Bell JJ; (6)It is conceivable that the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with their literal or grammatical meaning: Certain Lloyd's Underwriters at [68] per Crennan and Bell JJ quoting Project Blue Sky at [78] per McHugh, Gummow, Kirby and Hayne JJ; (7)Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted: Certain Lloyd's Underwriters at [25] - [26] per French CJ and Hayne J and [70] per Crennan and Bell JJ. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose: Australian Education Union at [27] - [28] per French CJ, Hayne, Kiefel and Bell JJ. Consideration 25Section 146C of the Act, requiring, as it does, the Commission to give effect to the provisions of cl 6(1)(f) of the Regulation, has the effect, in our view, of precluding the exercise of the power, otherwise residing in the Commission under the Act, to vary the award in the manner sought by the PSA in its application. Whilst that conclusion should result in the appeal being dismissed (for reasons which shall be discussed below), it should not result in leave to appeal being refused. We consider it is in the public interest that there be a further consideration of these important provisions which have wide ranging implications for the regulation of public sector employment in New South Wales and, in this particular case, the management of excess staff. 26Our reasons for dismissing the appeal are as follows: (1)In essence, by its submissions, the PSA contended that the effect of the provisions of cl 6(1)(f) was that any particular extant policy made by the Government, from time to time, concerning the management of excess public sector staff may not be included (that is to say, copied) wholly or by reference into an award. That, it was argued, constituted the full limit of the curtailment placed by cl 6(1)(f) upon the power of the Commission to make awards or orders. However, we do not consider that a textual analysis of the sub-clause is permissive only of the very limited construction proposed by the PSA. Furthermore, as we will discuss below in the later points of our reasoning, when the context (including the balance of cl 6 and s 146C of the Act) and purpose (taking into account extrinsic material in the form of a very limited reference to award history) of cl 6(1)(f), as well as the legal and practical consequences which may flow from the adoption of that limited construction, are considered, it is clear that the words of the sub-clause should be construed as having a wider meaning than that proposed by the PSA, and, in the result, should be construed in a manner consistent with that ultimately found by Boland J; (2)We begin with a textual analysis of the words of cl 6(1)(f) (which provision is set out at paragraph [8] of this judgment). The language of the sub-clause, when read literally, is also permissive of a broad construction. In particular, the word 'policies' appearing within the phrase "[p]olicies regarding the management of excess public sector employees", can have a general or global meaning (for example, as meaning courses of action adopted by the Government in relation to the management of excess staff), and is not necessarily confined to meaning a specific policy, in the sense of an instrument containing such a policy. Construal of the word 'policies' in the wider sense is supported by the interpretation of the word 'policy', in the context of s 146C of the Act, which was provided by French CJ in PSA (set out earlier in this judgment). Relevantly, in this respect, his Honour found (at [39]) that s 146C of the Act readily accommodated the concept of 'policy' as a principle or principles adopted or proposed by Government, and that the meaning of the word did not extend to a policy which was ambulatory. The narrow construction proposed by the PSA defines 'policies' as meaning actual extant instruments, which instruments, presumably, could be altered or revoked by the Government from time to time. In other words, the PSA adopts a definition of 'policies' which is, in effect, ambulatory and, therefore, extends beyond the meaning assigned to the notion by French CJ. (The difficulty with or problems which may arise from a definition of 'policies' which is ambulatory will be discussed below.) Similarly, the notion of 'incorporation', in the context of the balance of cl 6(1)(f), is also capable of a broader interpretation than that proposed by the PSA. In particular, the phrase "are not to be incorporated into industrial instruments", considered in light of its ordinary grammatical meaning, may be construed broadly to mean that, where a policy or policies concerning the management of excess staff exists, conditions or matters relating to that subject matter may not be included in or regulated by awards. The words are not necessarily confined to mean that the subject matter of a particular policy may not be repeated or copied, in exact terms, into an award. Whilst we would accept that the wording of cl 6(1)(f) is somewhat inelegant and that, as a result, ascertaining the proper construction of the sub-clause via a textual analysis alone is not entirely straightforward, the preceding analysis demonstrates that, without requiring a strained interpretation, a broader construction the sub-cl than that proposed by the PSA is textually available. The ultimate construction we prefer is, however, better supported by the contextual and purposive analysis which follows; (3)The immediate context, beyond the words of the sub-clause itself, is the balance cl 6 of the Regulation. When the balance of the clause is taken into consideration, it becomes clear that each of the remaining policies under the clause (that is, sub-cls (1)(a) to (1)(e)), restrict, in and of themselves, the power otherwise reposing in the Commission under the Act to make or vary awards. No reference to any source outside those policies is required (or permitted), given that the content of the various restrictions imposed by the policies reside entirely within each sub-clause (for example, cl 6(1)(a) constrains the Commission's power to vary wages for public sector workers by requiring that any increases in remuneration must not increase employee-related costs by more than 2.5% per annum). The contention by the PSA, as already noted, that cl 6(1)(f) referred to an extraneous extant policy dealing with the subject matter of excess staff is inconsistent with the way in which the balance of the clause is constructed; (4)A broader context which is relevant to the construction of cl 6(1)(f) is the provisions of s 146C of the Act. Section 146C(1)(a), is in the following terms: 146C Commission to give effect to certain aspects of government policy on public sector employment (1) The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees: (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and (b) ... The phrase "give effect to" was given some judicial consideration by the High Court in Visy Paper Pty Limited and Others v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1 where Kirby J, at (12), described the phrase (which phrase, it can be noted, had been expressly defined under the statute the subject of that case) as being an expression of wide meaning, the use of which required consideration of the various kinds of conduct which it encompassed and included the doing of an act or thing (or, in the case of cl 6(1)(f), refraining from doing an act or thing). That interpretation provides support for the submission of the respondent, in this respect (which we accept), that the term "give effect" in s 146C was broad, recognising the 'substance' within the Commission's award making powers over the 'form' in which such powers might be used. Viewed in this light, when the words of s 146C, in particular the phrase "give effect to", are read in conjunction with the words of cl 6(1)(f), support is provided for the conclusion that cl 6(1)(f) was not intended to be read down as confined to single, particular extant policies on the subject matter of the management of excess public sector employees, but, rather, should be interpreted as having a wider meaning. When read in context, the curtailment on the powers of the Commission by cl 6(1)(f) extends to restraining, where a policy or policies concerning the management of excess staff exists, the inclusion of conditions or matters relating to that subject matter in awards; (5)It is also necessary to consider the consequences which may flow from accepting the narrow construction of cl 6(1)(f) proposed by the PSA. That construction contained, as already noted, a reference to cl 6(1)(f) inconsistent with the interpretation of the expression 'policy' by French CJ in PSA given that it assigns a meaning to the word 'policies' in cl 6(1)(f) which is, in effect, ambulatory. French CJ went on to note, in explanation, that the word 'policy' in s 146C did "not extend to a policy which requires compliance with future variations of its terms or with future ministerial directions". If the construction proposed by the PSA were accepted, there would be the capacity for policies to be altered, during or after proceedings, permitting the Government to potentially alter or dictate their outcome. If this were the situation, there would exist a real risk that cl 6(1)(f) would be rendered unconstitutional. There is a presumption that Parliament does not intend to pass beyond constitutional bounds: Monis v The Queen [2013] HCA 4; (2013) 87 ALJR 340 at [327] per Crennan, Kiefel and Bell JJ citing Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at (180) per Isaacs J. Where different constructions are available, as may be the case with the particular terms of cl 6(1)(f), the construction which would avoid, rather than lead to, a conclusion of constitutional invalidity is to be selected (Monis at [327] per Crennan, Kiefel and Bell JJ citing New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1 at (161)-(162) per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). With respect to the present matter, a wider interpretation of cl 6(1)(f) as meaning that conditions or matters relating to the management of excess staff should not be included in awards where Government policy (in the broader sense discussed above) on the topic exists (as opposed to meaning that specific policies enunciated by the Government from time to time may not be copied into awards), would avoid a conclusion having the potential to render the provisions of s 146C constitutionally invalid; (6)Furthermore, if the construction of cl 6(1)(f) proffered by the PSA were accepted, the consequence would be that, while the Commission would be constrained from incorporating a policy dealing with excess staff in its exact terms into an award, it would not be restrained from incorporating the policy in substantially the same terms (or in substantially different terms). Such an outcome would effectively render (at least in practical terms) cl 6(1)(f) nugatory as a means of restricting the incorporation of conditions pertaining to the management of excess staff in awards because it would offer no effective restraint on the award or order making power of the Commission in circumstances where the clear purpose of the sub-clause is to constrain that power. This is because, upon the construction of cl 6(1)(f) proposed by the PSA, the Commission would be permitted to incorporate any policy on the management of excess staff with the only condition being that it was not in exactly the same terms; (7)Consideration of the purpose of cl 6(1)(f) is the final matter relevant to its construction. In concluding that the legislative purpose of cl 6(1)(f) was "to ensure that the long-established practice of managing excess employees through the medium of Government policy rather than award prescription is maintained", in the first sentence of paragraph [96] of the judgment at first instance, it can be gleaned that Boland J had regard to extrinsic materials, namely, award history and, in particular, the historical absence of any awards or provisions within awards dealing with the subject matter of the management of excess staff in the public sector. The text of a provision of a statute may be considered in the context of legislative history and extrinsic materials (Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ), recourse to which may be permitted for the purpose of identifying the mischief or purpose to which the enactment of a provision was directed: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; (1997) 141 ALR 618; (1997) 71 ALJR 312 per Brennan CJ, Dawson, Toohey and Gummow JJ. In the same way that reference to legislative history is a factor relevant to the consideration of the context of a provision, we consider that it was open to his Honour, in the context of the present matter, to have regard to award history (or, as it were, the absence of award history). The purpose identified by his Honour by reference to the award history is consistent with, and, indeed, reinforces, our earlier conclusion with respect to the ordinary meaning of the words of the sub-clause. We are of the view that, however - given that, in the process of construction, the Court is not to attempt to ascertain what the legislators had in mind when a provision was enacted (Certain Lloyd's Underwriters at [25], [26] and [70]) - his Honour may not have been entitled to go further, as he may have done in the balance of paragraph [96], in particular, in making reference to the "intention" of the Government in enacting cl 6(1)(f) (however, it is unnecessary to rule on that question). 27In the circumstances, we find that Boland J was correct to dismiss the application brought by the PSA and conclude that the Commission was precluded, by cl 6(1)(f), from varying the award in the terms sought by the PSA. Orders 28We make the following orders: (1)Leave to appeal is granted; (2)The appeal is dismissed. ********** 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. Decision last updated: 26 April 2013