Chorlton v Lings [2008] NSWIRComm 241 | Case summary

Chorlton v Lings [2008] NSWIRComm 241 | Case summary | Zoe

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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.

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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

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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

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(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)

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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.

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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.

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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.

[67]

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).

[69]

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.

[72]

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

[74]

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.

[75]

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.

[80]

[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.

[82]

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.

Chorlton v Lings

At a glance

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Judgment (83 paragraphs)

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Legislation Cited (2)

Cases Cited (19)