Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 Hearing dates: 4 December 2013 Decision date: 10 April 2014 Before: Bathurst CJ at [1]; Basten JA at [72]; Emmett JA at [117] Decision: (1)Declare that regulation 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) is invalid. (2)Quash the decisions of the Industrial Commission of NSW and of the Full Bench of the Commission dismissing an application to vary the Crown Employees' (School Administrative and Support Staff) Award to incorporate provisions dealing with redundancy and severance pay ("the variation application"). (3)Remit the matter to a member of the Commission to determine the variation application according to law. (4)No order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: STATUTORY INTERPRETATION - principles - validity; interpretation to ensure - in order that the thing may have effect rather than be destroyed - Interpretation Act 1987 (NSW), s 32 - contrary intention - construction of validity contrary to legislative intention WORDS AND PHRASES - "Policies regarding the management of excess public sector employees" - Industrial Relations (Public Sector Conditions of Employment) Regulations 2011 (NSW), s 6(1)(f) STATUTORY INTERPRETATION - regulation - within power of enabling act - inconsistent with obligations of enabling act - Henry VIII clauses - regulatory not prohibitory - regulation removing jurisdiction to deal with matter not a policy on the matter WORDS AND PHRASES - "policy on conditions of employment" - Industrial Relations Act 1996 (NSW), s 146C APPEAL - Jurisdiction of Industrial Court to hear appeal - regulation removing jurisdiction of Industrial Court invalid ADMINISTRATIVE LAW - jurisdictional error - mistaken denial of existence of jurisdiction Legislation Cited: Education (School Administrative and Support Staff) Act 1987 (NSW) Industrial Relations Act 1996 (NSW), ss 6, 10, 11, 17, 21, 24, 130, 133, 135, 136, 137, 145, 146, 146C, 153, 179, 407, Part 1 Chs 3 and 4 and Part 2 Ch 3 Industrial Relations (Public Sector Conditions of Employment) Regulations 2011 (NSW), regs 4, 5, 6 and 7 Interpretation Act 1987 (NSW), ss 5 and 32 NSW Employment Protection Regulation 2001 Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), s 242 Cases Cited: Airservices Australia v Canadian Airlines International Limited [1999] HCA 62; (2000) 202 CLR 133 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321 Birch v Australian Mutual Provident Society [1906] HCA 51; (1906) 4 CLR 324 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Carbines v Powell [1925] HCA 16; (1925) 36 CLR 88 Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984) CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 City of Arlington, Texas v Federal Communications Commission, 133 S Ct 1863 at 1868; 81 USLW 4299 (2013) City of Footscray v Maize Products Pty Ltd [1943] HCA 15; (1943) 67 CLR 301 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Combined State Unions v State Service Co-ordinating Committee [1982] 1 NZLR 742 Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) [2012] HCA 55; (2012) 87 ALJR 98 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 De L v Director-General Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207 King Gee Clothing Company Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531 McKiernon v Secretary of State for Social Security (1989-1990) 2 Admin LR 133 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment [2012] HCA 58; (2012) 87 ALJR 162 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Education and Communities [2013] NSWIRComm 32 Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 86 ALJR 862 Re Crown Employees (School Administrative and Support Staff) Award [2012] NSWIRComm 127 R v Secretary of State for Social Security, Ex parte Britnell [1991] 1 WLR 198 R v Secretary of State for the Environment, Transport and the Regions; Ex parte Spath Holme Ltd [2001] 2 AC 349 Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206; (2011) 81 NSWLR 348 State of New South Wales v Law (1992) 45 IR 62 Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 Texts Cited: D Pearce and S Argument, Delegated Legislation in Australia (4th ed, 2012) D Meyerson, "Rethinking the constitutionality of delegated legislation" (2003) 11 A J Admin L 45 G Ng, "Slaying the ghost of Henry VIII: A reconsideration of the limits upon the delegation of Commonwealth legislative power" (2010) 38 Fed L Rev 205 S Bottomley, "The notional legislator: The Australian Securities and Investments Commission's role as a law-maker" (2011) 39 Fed L Rev 1 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) State of New South Wales (First Respondent) Industrial Relations Commission of New South Wales (Second Respondent) Representation: Counsel: M Gibian (Applicant) M Kimber SC / M Easton (Second Respondent) Solicitors: W G McNally Jones Staff (Applicant) Crown Solicitor's Office (First and Second Respondents) File Number(s): 197461 of 2013 Publication restriction: - Decision under appeal Citation: [2013] NSWIRComm 32 Date of Decision: 2013-04-26 00:00:00 Before: Walton J Vice President, Staff J and Backman J File Number(s): IRC 1210 of 2012