Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees Wages Staff (Rates of Pay) Award 2011 and others [2015] NSWIRComm 7 Hearing dates: 8 July and 27 November 2014 Date of orders: 19 March 2015 Decision date: 19 March 2015 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Tabbaa C; Newall C Decision: The Full Bench makes the following orders and directions: (1) The applications in matter numbers IRC 466, 467, 469 to 471, 473 to 487 and 489 to 513 of 2014 are refused. (2) The parties may file any submission, in writing, as to the proper title of the applicant in matter numbers IRC 466, 467 and 473 to 485 of 2014 within seven days of this decision. Catchwords: Award – applications for no extra claims clause – whether clause required to be inserted in awards – statutory construction – legislative intention to be given effect – subordinate words – statutory intention achieved without insertion of clause – clause in terms not required – policy to be observed – applications refused Legislation Cited: Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 Government Sector Employment Act 2013 State Revenue and Other Legislation Amendment (Budget Measures) Act 2014 Cases Cited: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Education and Communities [2013] NSWIRComm 32; (2013) 233 IR 345 Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343 Category: Principal judgment Parties: Secretary of the Treasury (Respondent in matters IRC 179, 181, 189, 243, 299-302 and 317 of 2014; Applicant in matters IRC 466, 467, and 473-485 and of 2014) Secretary, NSW Ministry of Health (Respondent in matters IRC 244-265, 375 and 376 of 2014; Applicant in matters IRC 486, 487, 489 and 491-513 of 2014) Independent Transport Safety Regulator (Respondent in matter IRC 185 of 2014; Applicant in matter IRC 469 of 2014) Independent Commission against Corruption (Respondent in matter IRC 186 of 2014; Applicant in matter IRC 470 of 2014) Independent Pricing and Regulatory Tribunal (Respondent in matter IRC 187 of 2014; Applicant in matter IRC 471 of 2014) Landcom (Respondent in matter IRC 183 of 2014; Applicant in matter IRC 490 of 2014) Public Service Association and Professional Officers' Association Amalgamated Union of NSW (Applicant in matters IRC 179, 181, 183, 185-187 and 189 of 2014; Respondent in matters IRC 466, 467, 469-471 and 490 of 2014) Australian Salaried Medical Officers' Federation (New South Wales) (Applicant in matters IRC 243 and 244 of 2014; Respondent in matters IRC 474 and 489 of 2014) Australian Workers' Union, New South Wales (Applicant in matter IRC 317 of 2014; Respondent in matters IRC 479-485 of 2014) New South Wales Nurses and Midwives' Association (Respondent in matters IRC 486 and 487 of 2014) Health Services Union NSW (Applicant in matters IRC 245-265 of 2014; Respondent in matters IRC 375, 376 and 491-513 of 2014) Representation: Counsel: A Britt of counsel (Respondent in matters IRC 179, 181, 185-187, 189, 243, 299-302 and 317 of 2014; Applicant in matters IRC 466, 467, 469-471 and 473-485 of 2014) M Gibian of counsel (Applicant in matters IRC 179, 181, 183, 185-187, 189, 243-265, 317, 375 and 376 of 2014; Respondent in matters IRC 466, 467, 469-471, 473, 474, 479-487, 489-513 of 2014) I Latham of counsel (Respondent in matter IRC 513 of 2014) Solicitors: Crown Solicitor's Office (Respondent in matters IRC 179, 181, 185-187, 189, 243, 299-302 and 317 of 2014; Applicant in matters IRC 466, 467, 469-471 and 473-485 of 2014) W G McNally Jones Staff (Applicant in matters IRC 179, 181, 183, 185-187, 189, 243-265, 317, 375 and 376 of 2014; Respondent in matters IRC 466, 467, 469-471, 473, 474, 479-487, 489-513 of 2014) Australian Paramedics Association (NSW) (Respondent in matter IRC 513 of 2014) Secretary, NSW Ministry of Health (Respondent in matters IRC 244-265, 375 and 376 of 2014; Applicant in matters IRC 486, 487, 489 and 491-513 of 2014) Ashurst Australia (Respondent in matter IRC 183 of 2014; Applicant in matter IRC 490 of 2014) File Number(s): IRC 179, 181, 183, 185-187, 189, 243-265, 299-302, 317, 375, 376, 466, 467, 469-471, 473-487 and 489-513 of 2014 decision 1. This decision concerns applications made pursuant to s 17 of the Industrial Relations Act 1996 ('the Act') to vary a number of awards by including in each a clause characterised as a 'no extra claims' clause. The applications are made as part of what are otherwise consent applications for increases in award rates of pay and allowances of 2.27 per cent. 2. A 'no extra claims' clause was proposed by the Secretary of the Treasury and adopted by the other applicants in the proceedings. (It should be noted that, having regard to the provisions of ss 49 and 50 of the Government Sector Employment Act 2013, it would appear the proper title for the applicant in the applications brought by the Secretary of the Treasury is the Industrial Relations Secretary. We will make provision in our final orders and directions for clarification in this respect and, subject to that, adjustments to relevant aspects of this decision where reference is made to the Secretary of the Treasury.) 3. The proposed clause was in the following terms: 1. Prior to 1 July 2015, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the Employees covered by the Award by a party to this Award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those Employees will be instituted before the IRC, by a party to this Award. 2. The terms of subclause 1 do not prevent the parties from taking any proceedings: (a) with respect to the interpretation, application or enforcement of existing award provisions; (b) as provided for in clauses 5 and/or 6(1)(d) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW); (c) as provided for in the undertakings set out in Ex 1 of the proceedings; and/or (d) as provided for in clauses 6(1)(a), (b) and/or (c) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) after 31 March 2015 where such claims or demands concerning wages or conditions of employment are to commence no sooner than 1 July 2015. 1. So far as the applications sought the insertion of this clause (or any 'no extra claims' clause), the applications were opposed by the employee organisations party to the awards concerned. 2. The matters for determination by the Commission crystallised, as the submissions were developed, to a single question: is the Commission required under the existing statutory and regulatory scheme to include a 'no extra claims' clause in awards it makes? 3. Counsel for the Secretary of the Treasury and others, Mr A Britt, opened on the basis that the case was a simple one and the question before the Commission did, in fact, turn on a single point of statutory construction. 4. Section 146C of the Act, Mr Britt submitted, required 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 declared by "the regulations" to be an aspect of Government policy. 5. That proposition, we observe, is uncontroversial. It is apparent on the face of s 146C and reflects what was said by the High Court in Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343 at [1] per French CJ. 6. It was then contended that the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ('the Regulation') declared that, for the purposes of s 146C of the Act, aspects of government policy are to be given effect to by the Commission when making or varying awards or orders. 7. The policies in the Regulation, it was submitted, had the effect of constraining, limiting or qualifying the exercise of the power conferred upon the Commission under the Act. 8. Again, we observe that those propositions are not controversial. Nor is it in doubt that the Regulation was validly made and that it is a regulation declared for the purposes of s 146C. It is further clear that the current proceedings fall within the ambit of the Regulation, as the Regulation applies to proceedings that are pending in the Commission on the commencement of Sch 5 to the State Revenue and Other Legislation Amendment (Budget Measures) Act 2014, such as these proceedings. 9. For the purposes of its immediate application, the applicant then pointed to cl 6(1)(d) of the Regulation, which provides as follows: 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 terms of the award or order). However, this does not prevent variations made with the agreement of the relevant parties. 1. It was the first sentence of the clause that, it was contended, imposed the obligation upon the Commission to insert a 'no-extra claims' clause in the awards before it. 2. In summary form, submissions were advanced by Mr Britt in the following way: 1. An award or order made by the Commission must not "allow" extra claims to be made during the term of the award or the order. So much, we observe, is once again not in contest. 2. If an award or order was silent on the issue of additional claims, that silence, of itself, allowed extra claims to be made during the term of the award or the order contrary to the provisions of cl 6(1)(d) of the Regulation. Accordingly, it was said, the Commission was required by the words of the Regulation to insert 'no extra claims' clauses in each award. 1. It is this last proposition with which we have difficulty. It is a proposition which requires consideration of the principles of statutory construction. Construction of the Regulation 1. We see no reason to depart from or modify the relevant principles of statutory interpretation as the Commission expressed them in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Education and Communities [2013] NSWIRComm 32; (2013) 233 IR 345 at [24]. Without setting those paragraphs out again here, the critical proposition is this: the fundamental object of statutory construction is to ascertain legislative intention. This must be understood as the intention that the courts – and here the Commission – will impute to the legislature by a process of construction which focusses primarily upon the text of a provision. 2. With these principles in mind we turn to the construction of the Regulation. 3. It is immediately apparent that the Regulation, and in particular cl 6(1)(d), does not, in terms, impose a positive requirement on the Commission to insert a no extra claims clause. Such a requirement could, of course, have been provided by the draughtsman, but was not. 4. The words of the first sentence of cl 6(1)(d) bear repeating: "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)." 5. A validly made award or order of the Commission will necessarily, of itself, resolve all issues the subject of the proceedings because an award or order can only validly be made if it does precisely that. There can be, as counsel for the majority of the respondent unions conceded, no 'residual' matters remaining in relation to any proceedings once a valid award is made in the proceedings. That is the clear effect of the Regulation. 6. The words in parentheses appearing in cl 6(1)(d) of the Regulation are explanatory of that first fundamental proposition, and are subordinate to it. 7. Even without the words in parentheses in the first sentence of cl 6(1)(d), a validly made award or order, just as it necessarily extinguishes any residual matters, also precludes the insertion of any leave reserved clause or the Commission entertaining any suggestion that matters were reserved for the term of the award. A validly made award precludes any application in the nature of an extra claim for the term of the award because a validly made award necessarily, by its making, does not allow the making of any extra claims during its term. That is the effect of the Regulation. 8. The 'valid' making of an award is here to be understood not merely in its general sense of an award lawfully made pursuant to the Commission's powers under s 10 of the Act, but further in the specific context of s 146C, and in particular s 146C(3), which provides that an award or order does not have effect to the extent that it is inconsistent with the obligation placed on the Commission by s 146C, and, necessarily, by the regulations made pursuant to that section. It is, on the face of the Act, not possible to validly make an award that allows an 'extra claim'. 9. Mr Britt's submission that cl 6(1)(d) of the Regulation contained a government policy to which the Commission must give effect is correct. 10. However, the proposition that, in order to give effect to that policy, the creation and insertion in each award of a 'no extra claims' provision was required is not correct. First, it is not justified by the terms of the Regulation itself as a matter of construction. Secondly, and fundamentally, the requirement to give effect to the policy expressed in the Regulation – and specifically, that an award allow no extra claims during its term – is already satisfied by the making of a valid award, without need for more. 11. That is, cl 6(1)(d) of the Regulation, properly read, achieves its evident legislative intention without the insertion of any 'no extra claims' clause. 12. It follows that what was characterised by Mr Britt as "silence" on the part of the Commission, that is, the absence of a 'no extra claims' provision in a given award, by no means permits extra claims to be made. 'Extra claims' are already precluded by the valid making of the Award. A provision such as that sought in these applications would, in fact, be wholly superfluous. 13. Should an application be made during the term of an award which either proceeded on the basis that a matter had been reserved or made a claim which was in the nature of an 'extra claim', the Commission would simply deal with such an application according to law, that is, by rejecting it. 14. It follows from what we have found above that, in the absence of any submission by the applicants based upon discretionary grounds, the applications advanced as to the no extra claims clause should be refused and we so order. 15. As foreshadowed in [2] above we will make provision in the orders below to deal with any issue arising as to the proper title of the applicant in matter numbers IRC 466, 467 and 473 to 485 of 2014. In the event that any submission filed indicates the need to adjust the name of the applicant in those matters, the Commission will make any necessary adjustments administratively in Chambers with a resultant variation to the published version of this decision. Orders and Directions 1. The Full Bench makes the following orders and directions: 1. The applications in matter numbers IRC 466, 467, 469 to 471, 473 to 487 and 489 to 513 of 2014 are refused. 2. The parties may file any submission, in writing, as to the proper title of the applicant in matter numbers IRC 466, 467 and 473 to 485 of 2014 within seven days of this decision. POSTCRIPT: After receipt of a submission on 24 March 2015 in accordance with order (2) above, the Full Bench ordered that the published decision in Crown Employees Wages Staff (Rates of Pay) Award 2011 and others [2015] NSWIRComm 7 be amended to incorporate this postcript to record that the proper title of the Secretary of the Treasury is the Industrial Relations Secretary. ********** Amendments 31 March 2015 - This decision was amended on 31 March 2015 to incorporate a postcript appearing after [31] 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: 31 March 2015