CIC Insurance v Bankstown Football Club

APPLICANT: Mr D Chin of counsel SOLICITOR: Ms J Wright Jones Staff & Co LEGAL REPRESENTATIVES: RESPONDENTS: Mr P Menzies, QC Mr S Benson of counsel SOLICITOR: Crown Solicitor

JUDGMENT: - 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, Vice-President SAMS DP CAMBRIDGE C 1 December 2003 Matter No IRC 2392 of 2001 Notification under section 130 by NSW Fisheries of a dispute with the Public Service Association and Professional Officers' Association Union of New South Wales re work bans

Crown Employees (NSW Fisheries Salaries and Conditions of Employment) Award

Application by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for a new award DECISION OF THE FULL BENCH [2003] NSWIRComm 405

1 These proceedings arise from a notification by NSW Fisheries, filed on 2 April 2001 pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"), of a dispute with the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("the Association"). The dispute related to work bans imposed by Fisheries Officers in support of a claim to increase the number of Fisheries Officers across New South Wales.

2 The dispute came before Schmidt J on a number of occasions during 2001 and 2002. It is unnecessary for the purposes of this decision to traverse the history of those proceedings. It is sufficient to observe that on 29 August 2002 the dispute proceedings were adjourned pending the filing of an application to vary the Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award (2000), 316 IG 747 ("the 1999 Fisheries Award"). An application for a new award was subsequently filed on 12 September 2002 pursuant to s10 of the Act, naming NSW Fisheries and the Public Employment Office as respondents. The dispute proceedings and the award application were listed before Glynn J on 8 and 18 October 2002. On the latter occasion, both the Association and the respondents expressed the view that the award application involved special case considerations under the then State Wage Case Principles (see State Wage Case 2002 (2002) 114 IR 81). Her Honour subsequently referred both matters to Wright, J, the President.

3 On 21 October 2002, the President determined that the matter should be referred to a Full Bench of the Commission pursuant to Principle 10 of the State Wage Case Principles and s193 of the Act.

4 Proceedings before the Full Bench commenced on 8 November 2002. Counsel for the respondents submitted that the Association's application raised a jurisdictional issue; namely, 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.

5 Counsel for all parties agreed that the jurisdictional issue should be dealt with as a preliminary matter. Written submissions were filed in accordance with directions made by the Full Bench on 8 November 2002. Oral submissions were presented to the Full Bench on 25 February and 12 May 2003.

6 In the course of these proceedings, the Association sought leave to re-argue the decision of a Full Bench of the Commission (sitting in Court Session) in Public Service Association (NSW) v Public Service Board (NSW) (1986) 14 IR 414 ("the Ombudsman case"). The Commission allowed the parties an opportunity to make further written submissions in relation to that issue.

7 The Association's application seeks a new award be made to be known as the Crown Employees (New South Wales Fisheries - Staffing Levels for Full Time Fisheries Officer Positions) Award ("the proposed award"). The parties to the proposed award would be the Public Employment Office and the Association.

8 The proposed award's sole objective is to require NSW Fisheries to implement new staffing levels for full-time Fisheries Officers in accordance with Annexure A to the proposed award. Annexure A is reproduced below:

Office Current Staff Increase Staff with increase Coastal Offices Tweed Heads 2 1 3 Ballina 2 1 3 Maclean 2 1 3 Coffs Harbour 2 1 3 South West Rocks N/a 3 3 Port Macquarie 2 1 3 Taree 2 1 3 Tuncurry 2 1 3 Swansea 5 1 6 Nelson Bay 4 1 5 The Entrance 2 1 3 Brooklyn 2 1 3 Wollstonecraft 6 3 9 Sans Souci 5 3 8 Lake Illawarra 3 1 4 Nowra 2 1 3 Ulladulla N/a 2 2 Batemans Bay 3 1 4 Narooma 2 1 3 Eden 4 1 5 Inland Offices Tamworth 1 1 2 Wellington 2 2 4 Yass 1 1 2 Tumut 1 1 2 Cooma Jindabyne 3 1 4 Deniliquin 1 1 2 Nerrandera 1 1 2 Total 62 35 97

'Fisheries Officer' is defined in clause 3 of the proposed award as "all persons permanently, temporarily and casually employed under the provisions of the Public Sector Management Act 1988 in New South Wales Fisheries pursuant to the classification structure established by the Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) 1999 Award ".

9 All other conditions of employment are referable to the 1999 Fisheries Award, the Crown Employees (Public Sector - Salaries January, 2002) Award and Crown Employees (Public Service Conditions of Employment 1997) Award and subsequent variations to those awards.

10 The 1999 Fisheries Award applies to all full-time employees employed by NSW Fisheries and includes Fisheries Officers, administrative and clerical officers, managerial staff, Fisheries Scientific Technicians, Fisheries Maintenance Technicians and Fish Hatchery Staff. The word 'employee' is defined as "all persons permanently or temporarily employed under the provisions of the Public Sector Management Act 1988". Part A of the 1999 Fisheries Award sets out the various conditions for employees and Part B deals with the monetary rates. Attachment B deals with competency standards for Fisheries Officers. The 1999 Fisheries Award came into effect on 28 October 1999 with a nominal term of 12 months.

11 The jurisdictional issue arises in the context of the provisions of the Public Sector Employment Management Act 2002 ("the 2002 Act") insofar as it deals with the appointment or failure to appoint a person to a vacant position in the Public Service. The relevant provision is section 22 which is 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.

12 The parties agreed that the 2002 Act represented the applicable statutory regime, together with ss38 and 38A of the Public Sector Management Act 1988 ("the 1988 Act"), which continue to have effect as if they formed part of the 2002 Act: cl5, Schedule 1 - Savings and Transitional Provisions, Public Sector Employment Management (General) Regulation 1996).

13 Section 22 of the 2002 Act is relevantly similar in its terms to s27 of the 1988 Act and s65A of the Public Service Act 1979 ("the 1979 Act").

14 Section 27 of the 1988 Act was in the following terms: 27 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 .

15 Section 65A of the 1979 Act was in the following terms: 65A Provisions as to appeals, 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 thereto, is not an industrial matter for the purposes of the Industrial Arbitration Act, 1940. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) Subsection (1) does not limit the meaning of the expression "industrial matters" as defined for the purposes of this Act. (4) A certificate or report given or made or purporting to be given or made under section 63 or 64 shall be conclusive evidence that there is, in the opinion of the Board, no available officer in the Public Service who is as capable and qualified, with respect to the position to which the certificate or report relates, as the person proposed to be appointed. (5) A certificate or report given or made or purporting to be given or made under section 63 or 64, and any decision, proceeding, step or other matter involved in the giving or making of the certificate or report, shall not be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, quashed or called in question by the Industrial Commission of New South Wales or any other court. (6) Without affecting the Government and Related Employees Appeal Tribunal Act, 1980, 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, shall lie in respect of - (a) any certificate or report referred to in subsection (5); (b) any decision, proceeding step or other matter involved in the giving or making of any such certificate or report; or (c) 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.

16 Both s27 of the 1988 Act and s65 of the 1979 Act have been the subject of consideration: see the Ombudsman case and Re Application to vary NSW TAFE Commission (Teachers and Other Educational Staff Salaries and Conditions) Award 1996 (unreported, Matter No 4111 of 1998, 29 May 1999) ("the TAFE case").

17 The Association's submissions consisted of an "underpinning" submission relating to the interpretation of s22 of the 2002 Act, and a second "complementary" submission relating to the interpretation of the proposed award vis a vis s22 of the 2002 Act.

18 The Association's "underpinning" submission was to the effect that s22 of the 2002 Act ought to be read consistently with its statutory purpose, that is, confined to precluding the Commission from entertaining award applications or disputes regarding the appointment of any particular person to any particular vacant position, as distinct from applications to increase staffing levels generally.

19 Mr Chin, counsel for the Association, acknowledged that, if applied, the decision in the Ombudsman case stood directly against this contention. The Association's concession that the decision in the Ombudsman case against them is reflected in the following exchange which took place during a discussion as to whether leave is required to reargue that decision: Walton VP It must be, must it not Mr Chin, on the first plank of your submission, because in essence you don't just ask us on this first plank to distinguish this case in some way. You say it is wrong and we should overturn it both as a matter of statutory interpretation and as a matter of applying what the statute [says]. If I understand your submission correctly, then there is a question as to how we should apply our minds to that task as a matter of principle. Chin That is the case. Your Honour correctly puts our position in this situation. It may be that as regards our complementary submission, if I can put it that way, in any event this Commission will not require consideration of overturning the Ombudsman's case because of our secondary submission it is distinguished effectively.

20 However, the Association nevertheless sought to advance its "underpinning" submission on two grounds. Firstly, Mr Chin proposed that it would be open for this Full Bench to reconsider the decision in the Ombudsman case. Indeed, the Association submitted that the decision in that case was wrong and should be overturned. Secondly, and in any case, according to the Association, the Ombudsman case could be distinguished from the present matter.

21 As to the first aspect of the Association's "underpinning" submission, Mr Chin submitted that the decision in the Ombudsman case was wrong and should be overturned. In this respect, the Association submitted that the literal approach adopted by the Commission in Court Session in the Ombudsman case is a superseded and outdated approach. In that case, the Commission in Court Session gave primacy to the wide literal effect of the language used in s65A of the 1979 Act (the predecessor to s22 of the 2002 Act and s27 of the 1988 Act). The Association submitted that such an approach to statutory interpretation had been displaced by the contemporary, purposive approach: see s33 of the Interpretation Act 1987 (NSW), Mills v Meeking (1990) 91 ALR 16 and CIC Insurance v Bankstown Football Club.

22 Section 33 of the Interpretation Act 1987 is as follows: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

23 Applying the purposive approach, it was submitted that the Commission should adopt a construction of s22 of the 2002 Act that furthers its purpose or object, consistent with the identifiable "mischief" which it was intended to remedy, that is, the availability of surrogate promotion appeal proceedings in the Commission. The Association further submitted that this approach should properly include a consideration of the context in which the provision is placed, that is, the mischief that the legislative provision was designed to remedy (see CIC Insurance v Bankstown Football Club (1997) 141 ALR 618; Timothy Fox v GIO Australia Limited (2002) 56 NSWLR 512).

24 According to the Association, the purpose of s22 of the 2002 Act can be seen in the Second Reading speech made in the New South Wales Parliament on 19 November 1980 in relation to proposed amendments to, inter alia, s65A of the 1979 Act, the predecessor to s22 of the 2002 Act. It was said in that speech: The bill therefore proposes a number of amendments that are important to the smooth operations of the New South Wales public service. The most important of those amendments is the proposal to amend section 63 of the Act, and related sections, concerning outside appointments to the service - a matter which has attracted considerable public attention and, I am sorry to say, has incurred much misplaced union opposition and displeasure. … The purpose of the proposed amendment to the Act is twofold: first, to restore to the [Public Service Board] its former responsibility as the final, independent arbiter on the selection of an outsider for a public service job; and second, to base selection in such cases strictly on the merit principle, as already applies for promotional purposes generally in the New South Wales public service.

25 As to the second aspect of the Association's "underpinning" submission, the Association submitted that, in any event, the Association's application was not defeated by the Ombudsman case because that case can be distinguished from the present matter. The Association offered the following explanation as to how the Ombudsman case may be distinguished: Similarly, the Full Bench's decision in [the Ombudsman case] does not assist the Respondents in these proceedings because the award at issue in that case sought to prohibit the temporary appointment of investigating officers to positions in the Ombudsman's Office and, thereby, to enforce a general policy that appointments of officers to vacant positions (within the meaning of s65A(1) of the [1979 Act]) should be on a permanent basis. In contrast to the awards at issue in the TAFE case and the Ombudsman's case, the [proposed award] does not prescribe the method or category of employment by which the employer might fulfil its obligation to increase, or otherwise deal with, its staffing level.

26 The essence of this submission was that the proposed award lies beyond the scope of s22 of the 2002 Act because it does not require the creation of new positions. Rather, according to the Association, the proposed award "would merely require NSW Fisheries to increase its overall staff complement, whether by employing officers, temporary employees or casual employees within the meaning of s7(1) of the 2002 Act. The proposed award would not, of itself, require the employment of additional officers within the meaning of s7(1), nor, it follows, would it necessarily require the appointment of persons to vacant positions within the meaning of s22". The Association contended that the proposed award did not expressly mandate the method by which the increased staffing complement must be comprised, and in particular, it did not require the appointment of persons to permanent officer positions.

27 The Association further submitted that the TAFE case is distinguishable from the present application because in that case the award required the creation of new permanent part-time positions, the appointment of staff to those positions, and the filling of vacant positions within the meaning of s19 of the TAFE Act. According to the Association, the TAFE case can be further distinguished because, unlike s22 of the 2002 Act which is linked to s26 of the 2002 Act, the TAFE Act does not tie the concept of "vacant position" to any other provision which dictates the circumstances in which a position becomes vacant.

28 It was put that the decision of the Commission in Court Session in the Ombudsman case and the Full Bench decision in the TAFE case do not assist the respondents' case as they both dealt with the appointment of staff to vacant positions. Here, the Association's application does not prescribe the method by which the employer might be required to fulfil its obligations to increase staffing levels.

29 The "complementary" submission made on behalf of the Association was that s22 of the 2002 Act does not apply in the present case, firstly because the proposed award does not require the creation of any positions or the appointment of any persons to those positions such that it is not excluded by s22 of the 2002 Act and/or secondly because the proposed award does not relate to the appointment or failure to appoint a person to a vacant position in the Public Service.

30 The first aspect of the Association's "complementary" submission, effectively repeats the second aspect of the "underpinning" submission, namely that the proposed award does not require the creation of, or appointment of persons to, any positions as contemplated by the 2002 Act.

31 Mr Chin conceded that, to the extent the proposed award would require the fulfilment of minimum staffing levels by way of appointments to permanent officer positions pursuant to s7(1)(a) of the 2002 Act, this would require the creation of a new position for the purpose of Part 2.3 of that Act such that there would be no jurisdiction to make the proposed award. However, it was the Association's submission (in the second aspect of its "complementary" submission) that in any event the proposed award does not relate to the appointment or failure to appoint a person to a vacant position in the Public Service. According to the Association, the fact that the proposed award does not mandate the method by which the complement of staff should be increased, coupled with the fact that the proposed award admits the possibility that all extra positions may be taken up by temporary and/or casual employees, is sufficient to give this Commission jurisdiction and avoid the operation of s22 of the 2002 Act.

32 The Association contended that the basis for this reasoning can be found in the construction of the statutory scheme which regulates the appointment of staff (being the 2002 Act and those provisions of the 1988 Act which continue to have effect). In summary, the Association's complementary arguments were developed as follows:

a The legislative scheme distinguishes between a person employed as a "member of staff" of a Department and an officer who "holds a position" in a Department (s7 of the 2002 Act);

b Employees engaged on a temporary or casual basis are members of staff but do not hold positions in a Department (s9(5) of the 2002 Act);

c The distinction between officers employed in "positions" and temporary and casual employees is consistent with the surviving sections of the 1988 Act (ss38 and 38A);

d s22 of the 2002 Act operates to oust the Commission's jurisdiction only in circumstances where there is an appointment, or failure to appoint, a person to a vacant position in the Public Service, that is, a permanent "officer" position;

e the proposed award does not prima facie require the creation of permanent officer positions within the meaning of the 2002 Act. Rather, the proposed award requires an increase in staffing levels, whether by creation of permanent officer positions to which s22 might apply, or alternatively by appointment of temporary or casual employees;

f A Fisheries Officer who is engaged on a temporary or casual basis under the proposed award would not hold a position within NSW Fisheries within the meaning of the 2002 Act;

g In any case, any positions that may be created pursuant to the proposed award would not be relevantly "vacant" within the meaning of ss22 and 26 of the 2002 Act;

h Given that the proposed award contemplates the engagement of a Fisheries Officer on a temporary or casual basis (and therefore not in a "position"), and that any new positions would not be "vacant" positions, the proposed award is beyond the scope of s22 of the 2002 Act and the application is therefore within the Commission's jurisdiction.

33 Mr Chin noted in oral submissions that there is no statutory prohibition on the making of an award which would enable or require NSW Fisheries to increase staffing levels by employing only casual or temporary employees.

34 Section 26 of the 2002 Act defines the limited circumstances in which an officer's position becomes vacant as follows: 26 Vacation of position (1) An officer's position becomes vacant if the officer: (a) dies, or (b) is removed from the position, or retires or is retired from the position, under this or any other Act, or (c) resigns the position in writing addressed and delivered to the appropriate Department Head and that Department Head accepts the resignation, or (d) abandons his or her employment in the Public Service. (2) This section does not affect any other provision by or under which an officer's position becomes vacant.

(3) This section does not apply to officers holding chief or senior executive positions.

35 According to the Association, a new position that is created by the proposed award is not a "vacant position" within the meaning of s26 of the 2002 Act.

36 As to the distinction between officers and temporary or casual employees, the Association relied on s7 of the 2002 Act which enables NSW Fisheries to employ staff in three distinct categories as follows:

7 Categories of Employment (1) Staff may be employed in a Department in the following categories: (a) officers - being persons employed in chief or senior executive positions or other staff positions in the Department, (b) temporary employees - being persons employed to carry out work in the Department on a temporary basis, (c) casual employees - being persons employed in the Department on a casual basis.

(2) Temporary employees may be employed in following subcategories: (a) Departmental temporary employees - being persons employed under Part 2.4 to carry out work in a Department, (b) special temporary employees - being persons employed under Part 2.5 to carry out work for a political office holder. (3) The usual basis for the employment of staff in a Department is to be the employment of officers (4) Subsection (3) does not apply to the employment of staff for the purpose of carrying out work for a political office holder.

37 The Association submitted (and the respondents agreed) that Part 2.3 of the 2002 Act, which contains s22, does not apply to temporary or casual employees. Section 9(5) of the 2002 Act provides as follows: (5) Temporary employees and casual employees are members of staff of, but do not hold positions in a Department.

38 Mr Chin also conceded that it followed from the Association's submissions that the 2002 Act must be interpreted as being relevantly silent in respect of any new position that may be created as a result of the making of the proposed award, and in respect of the appointment of any person to that newly created position. Such an interpretation must necessarily encompass the whole of Part 2.3 of the 2002 Act, so as not to narrowly interpret s22 in isolation of the relevant Part.

39 The respondents submitted that the Association's application requires the creation of 35 new positions and the appointment of 35 full-time employees to fill those positions, and that such an application is precluded by s22 of the 2002 Act. Accordingly, the application was beyond jurisdiction.

40 Mr P Menzies QC for the respondents (with whom Mr S Benson of counsel appeared), contended for the respondents that the Association's interpretation of s22 of the 2002 Act would produce an "utter absurdity" and would create chaos in the appointment process within the Public Sector. He said the concept of vacant position cannot possibly mean what the Association contended. It could not possibly be right that the Commission would have jurisdiction over casual or temporary employees, but not over permanent employees. Further, to create an award which forced an employer to employ persons unlawfully, that is to casual or temporary positions which are in reality permanent positions, was an absurd proposition.

41 Mr Menzies noted that, at the time this matter was being heard, there were no Fisheries Officers engaged on a temporary basis.

42 It was the respondents' submission that the Commission was bound to follow previous decisions of Full Benches of the Commission under predecessor legislation to the 2002 Act which dealt with similar circumstances to the present application, that is, the Ombudsman and the TAFE cases.

43 As to the correct approach to statutory construction, Mr Menzies submitted that s33 of the Interpretation Act 1987 says that if two constructions are available the preferred construction is the one that promotes the objects of the statute over the one which does not. The respondents submitted that the overriding purpose of the 2002 Act is the establishment of the public service of New South Wales, with management powers being conferred expressly on department heads, subject to the overriding supervision of the treasurer: see s8 of the 2002 Act. According to the respondents, the proposed award may adversely affect the effective management and control of the public service, for instance as a result of budget repercussions, and does not promote the overriding objective of the 2002 Act.

44 The respondents further submitted that the Commission should have regard to the re-enactment rule of statutory interpretation, that is, whenever any legislation is re-enacted after being judicially interpreted, the legislature is to be assumed to have approved that interpretation: Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96, Public Service Association of NSW v Industrial Commission (1985) 1 NSWLR 627. According to the respondents, given that the relevant provision has been re-enacted on at least 2 occasions, both since the decision in the Ombudsman case, the presumption arising from an application of the re-enactment rule in this case is compelling.

45 As to leave, the respondents submitted that leave should always be required for the reconsideration of decisions of the Full Bench however constituted, and that considerations of consistency and the orderly conduct of litigation demands that parties be able to proceed upon the basis that authoritative decisions of the Commission will in the ordinary course be followed.

46 The Association submitted that, if leave was required to argue that the Ombudsman case be reconsidered, such leave was sought. However, the Association also noted that while it has become the Commission's practice to require a party to obtain leave for the purpose of challenging the correctness of a prior decision, there is some doubt as to whether there is a strict requirement for such leave.

47 The Association drew the Commission's attention to the authorities which confirm the duty of the Commission, in a proper case, to reconsider both its own decisions and the decisions of its predecessors, citing in particular Re Iron and Steel Works Employees (Australian Iron & Steel Limited - Port Kembla) and Other Awards [1945] AR(NSW) 64 at 83 where Kinsella J held: This Commission, in my opinion, should not be rash or impetuous in making adjustments to meet current changes, but neither must it be timid of innovation.

48 Section 175 of the Act, headed "Powers of Interpretation", provides as follows: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).

49 The Association submitted that the Commission's duty to reconsider decisions of its predecessors extends to questions of statutory interpretation, in circumstances where it appears that the Commission in an earlier decision was clearly wrong: Thorburn v Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division (1969) IAS Current Review 160 at 161, citing Re Clerks, Wholesale Hardware, etc. Metropolitan) Board [1928] AR (NSW) 224 at 263.

50 The Association further submitted that the Full Bench of the present Commission is not bound by decisions of its predecessor bodies, including the Industrial Commission of New South Wales under the Industrial Arbitration Act 1940. If it were, those decisions would be immune from review, even if plainly wrong, a result which would be contrary to the duty of the Commission to reconsider its jurisprudence in light of contemporary standards and principles.

51 According to the Association, the grounds for this Full Bench overturning the decision in the Ombudsman case are as follows: … the Commission may entertain a strong conviction as to the incorrectness of the Ombudsman case based on the manifest application in that case of a subsequently superseded approach to statutory interpretation. The Commission may entertain such a conviction with due respect to the opinion of the Full Bench in the Ombudsman case because the manifest error advanced by the Applicant lies as a result of changes in the law that largely took place after that decision, such as the enactment of s33 of the Interpretation Act 1987 in conjunction with the evolution of the purposive approach to statutory interpretation such that the "context" of a provision, in its widest sense, must be considered in the first instance: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 at 634-5.

52 The respondents agreed with the Association's appraisal of the position with respect to the binding effect of earlier cases, namely that the Commission is not bound to follow its earlier decisions (or earlier decisions of similarly constituted tribunals) and that it will follow earlier decisions unless it is of the opinion that the earlier decision is clearly wrong. However, the respondents submitted that: … in as much as the Commission will not consider itself bound by earlier decision, it matters not whether the earlier decision was that of this Commission as presently constituted or a Commission as constituted under any other statute.

53 As to the treatment of earlier decisions generally, the respondents submitted that an earlier decision is binding upon single members or later tribunals of the same status, and that while it was open for this Full Bench to reconsider earlier decisions, it should only do so upon leave being granted and in a proper reconsideration of the earlier decision.

54 The respondents concluded that the Full Bench here should consider itself bound by the conclusions in the Ombudsman case.

55 Save for the operation of s22 of the 2002 Act, in conjunction with s160 of the 2002 Act (which expressly states that the operation of s22 is not limited by the Industrial Relations Act 1996), this Commission has jurisdiction to, inter alia, make an award setting fair and reasonable conditions of employment for employees, where 'conditions of employment' includes any provision about an 'industrial matter'. This would, in our view, include an award of the kind sought by the Association.

56 The effect of s22 is to expressly exclude any question or dispute relating to the appointment, or failure to appoint a person to a vacant position in the public service from the definition of 'industrial matter'. The effect of this provision is, therefore, to limit the Commission's jurisdiction to deal with matters which would otherwise be considered 'industrial matters', and on the present application, come within the jurisdiction of the Commission.

57 There is no doubt, and there was no dispute during these proceedings, that s22 of the 2002 Act is relevantly the same as s65A of the 1979 Act, which provision was considered by a Full Bench of the Commission sitting in Court Session in the Ombudsman case. The Association acknowledged that the decision in that case is directly contrary to their primary contentions in this matter (except to the extent that the decision may be distinguished). Therefore, it is critical to the Association's success in relation to the first aspect of its "underpinning" submission that it overcome the decision in the Ombudsman case.

58 The Association's primary submission in that regard was that the decision in the Ombudsman case was wrong. The basis on which the Association contended that the findings in the Ombudsman case were erroneous was the literal approach taken by the Full Bench in that case to the interpretation of s65A of the 1979 Act, that approach being superseded, it was submitted, by the contemporary purposive approach. We note, however, that, whilst the Association asserted that the primary approach to statutory interpretation should be a purposive rather than literal approach, the Association did not challenge the actual literal interpretation of s65A of the 1979 Act undertaken by the Commission in Court Session in the Ombudsman case as being incorrect.

59 In the present matter, the Association contended that, in order for the proposed award to be made, it was necessary for us to interpret s22 of the 2002 Act, having regard to its purpose, as applying narrowly to individual appointments to particular positions rather than applying broadly to general issues such as increasing staffing levels. This argument is not dissimilar to that put by the Association in the Ombudsman case. Given that this argument was rejected in the Ombudsman case, it is not surprising, therefore, that, in the present case, the Association's primary submission is that the decision in the Ombudsman case is incorrect. We commence our deliberation then by reference to that decision.

60 The Ombudsman case raised the question as to whether or not the Commission has power to make an order or award which, in essence, would require the Public Service Board of New South Wales to adopt a policy of appointing Investigating Officers on a permanent basis rather than on a temporary basis under the Public Service Act 1979. The Public Service Board opposed the making of such an order or award on the basis that there was no jurisdiction to do so. In that regard, the Public Service Board relied on the wording of s65A of the Public Service Act 1979, which is set out earlier in this decision. Specifically, the Association argued that s65A of the 1979 Act should be read narrowly as applying to individual appointments or promotions only.

61 The Commission in Court Session in the Ombudsman case, when asked to read down the relevant statutory provision, held (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 s65A 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 s65A(1) in the singular, despite normal canons of construction and s21(b) of the Interpretation Act 1897 [sic]. We are satisfied that the words used in s65A(1) must be interpreted as they stand, in what are, in our view, wide and unequivocal terms.

62 The Commission in Court Session was further satisfied that an award which required the Public Service Board to apply its general policy with respect to the appointment of investigation officers, that is to employ those persons on a permanent rather than temporary basis, related to "the appointment or failure to appoint a person". The Commission in Court Session (at 415) observed that s65A of the 1979 Act limited the Commission's jurisdiction under the then Industrial Arbitration Act 1940 to making an award determining any industrial matter by declaring that certain action, or certain failure to act, was not an industrial matter for the purposes of that Act. The Full Bench held (at 416 - 617): The award which the Association seeks relates to the appointment of a person or persons to vacant positions in the public service. Perhaps more specifically categorised it is directed at the "failure" of the Board "to appoint" in a way which accords with the Board's general or normal policy. But however it may be regarded it must be set against the plain words of s.65A(1), which are that the "appointment or failure to appoint ... or any matter, question or dispute relating thereto, is not an industrial matter for the purposes of the Industrial Arbitration Act." Those plain words must surely be construed as taking the order or award sought out of the purview of the tribunals under the Industrial Arbitration Act .

63 In oral submissions, Mr Chin acknowledged that the primary approach to statutory interpretation is to consider the words used in the statute to attempt to identify the manner in which the statute would operate. However, the Association submitted that a statute's purpose may also be explored without there first being a "persuasive literal ambiguity" in the words of the statute. It was on this basis, the Association submitted, that the Commission in Court Session in the Ombudsman case considered the purpose of s65A of the 1979 Act.

64 We agree with the findings of the Commission in Court Session in the Ombudsman case that the language in s65A of the 1979 Act is plain and unequivocal.

65 We do not consider that, on any literal interpretation of that provision, it can be read down in the manner proposed by the Association, that is, that it applies only to individual appointments to particular positions. In that regard, we agree with the findings of the Commission in Court Session in the Ombudsman case that a broader interpretation of s65A is preferable, and that the words used in that section must be interpreted in "wide and unequivocal" terms. According to the Commission in Court Session, such an interpretation was consistent with normal canons of construction and with the Interpretation Act 1987.

66 Further, we are not convinced by the Association's submissions that the approach taken by the Commission in Court Session in that case, and the consequent decision, is inconsistent with a purposive approach to statutory interpretation, notwithstanding that the decision pre-dates the decisions referred to by the Association in Mills v Meeking and CIC Insurance. The purpose of s65A of the 1979 is to remove from the scope of an 'industrial matter' any matter, question or dispute relating to the appointment or failure to appoint a person to a position so as to remove the possibility of a de facto right of appeal to the Industrial Relations Commission of New South Wales under the Act. We note that the Commission in Court Session in the Ombudsman case did have regard to the "mischief" to which the amendment to the 1979 Act had been directed. In its consideration of that purpose, however, the Commission in Court Session found no basis for adopting the confined interpretation sought by the Association in that case. We note that, having found that the words used in s65A must be interpreted in "wide and unequivocal" terms, and having also considered the purpose of the provision, the Commission in Court Session made no finding that the plain meaning of the words was in any way contrary to the purposive interpretation. In the circumstances, we do not consider that the purpose of s65A is inconsistent with the literal interpretation adopted by the Commission in Court Session in the Ombudsman case.

67 Accordingly, we are satisfied that the decision in the Ombudsman case is correct. In our view, a departure from the findings in that case as to the interpretation of s65A of the 1979 Act is not warranted, and there is no basis to disturb that finding or indeed to adopt an alternative, narrower interpretation of s22 of the 2002 Act.

68 We do not accept the Association's contention that there is a manifest or demonstrable error in the decision in the Ombudsman case that requires reconsideration. We certainly do not hold a 'strong conviction' that it is incorrect.

69 We find that the Ombudsman case is not 'positively wrong' or 'plainly wrong', nor did it '[proceed] upon an erroneous view of the law'. Accordingly, we are not satisfied that this is a proper case for reconsideration, and we do not propose departing from the decision in the Ombudsman case.

70 We are strengthened in this view by the findings in the TAFE case. There, the majority (Wright J, President and Schmidt J), dealt with an analogous provision in the Technical and Further Education Commission Act 1990 ("the TAFE Act"). In the TAFE case, the TAFE Commission opposed an application by the New South Wales Teachers' Federation to vary an award to, inter alia, establish new part time positions and appoint persons to those positions to properly reflect the then existing administrative arrangements. The application was opposed on the basis that s19 of the TAFE Act (which is the same in all relevant respects to s22 of the 2002 Act presently under consideration) operated to oust the jurisdiction of the Commission. The majority, in finding that s19 of the TAFE Act did in fact have that effect, stated (at 17-18): While in the ordinary case the appointment or failure to appoint a person to a position will be an "industrial matter" as defined in the 1996 Act and an award made in respect of such a matter may properly be characterised as an award concerning a "condition of employment", such a matter arising at the TAFE Commission is taken beyond the Commission's award making power by Section 19 of the TAFE Act. It follows that there is power in the TAFE Commission to appoint staff on merit and to do so on conditions of employment fixed by the TAFE Commission or by regulation. That power is subject to the Commission's award making power under the 1996 Act, except as to any award regulating the appointment or failure to appoint persons to the staff of TAFE. By virtue of the limitation imposed by Section 19 of the TAFE Act, the Commission has no power to make an award as to such matters. As there is no ambiguity on the face of these statutory provisions, it follows that the question which requires our determination is whether the claim (or any part of it), sought to be advanced in this case by the Federation, as in the Ombudsman's case, is beyond the Commission's power as it relates to the appointment or failure to appoint persons to the staff of the TAFE Commission. In so far as the claim seeks an award which requires particular part-time casuals employed under the award to be appointed to part-time positions or requires the appointment of temporary part-time staff to permanent part-time positions to which they are not presently appointed, the terms and effect of s19 preclude jurisdiction. The award provisions requiring the creation of positions to which such persons may be appointed clearly relate to questions of appointment and are also beyond the Commission's award making power.

71 The majority went on to say that the fact that such a claim might also be properly characterised as a claim in relation to a "condition of employment" provides no relevant distinction, as the effect of the statutory provision was to make such an application "not an industrial matter for the purpose of the 1996 Act."

72 As to the respondent's submissions regarding the re-enactment rule of statutory interpretation, we agree with the Association that that rule has little contemporary use. We note the decision of the High Court in Zickar v MGH Plastic Industries Pty Limited (1995-1996) 187 CLR 31, in which the court considered the implication of changes to the definition of "injury" in workers' compensation legislation. The High Court in that case referred with approval to the decision in R v Reynhoudt (1962) 107 CLR 381, in which Dixon CJ said: The view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial.

73 Similarly, the court in Zickar referred to another decision of the High Court in Flaherty v Girgis (1987) 162 CLR 574, where a majority of Mason ACJ, Wilson and Dawson JJ said (at 594): Whilst it is true that, where an inference can be drawn from the terms in which subsequent legislation has been passed that Parliament itself has approved of a particular judicial interpretation of words in an earlier statute, a court should adhere to that interpretation, the difficulty is in discerning the existence of parliamentary approval. Mere amendment of a statute not involving any re-enactment of the words in question could seldom if ever constitute approval of an interpretation of those words. Even re-enactment of the words in circumstances not involving any reconsideration of their meaning, as eg, in a consolidating statute, does not do so. At most the principle affords a presumption of no great weight concerning the meaning of the words used and cannot be relied upon to perpetuate an erroneous construction … For the reasons given by Dixon CJ, the suggested rule nowadays is of little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct.

74 During the course of the proceedings, the question of leave arose in relation to the Association's submission that we reconsider the decision in the Ombudsman case. The Act does not dictate the procedure to be followed in the event that this Commission is asked to reconsider one of its earlier decisions. We are, however, satisfied that this Commission has power to grant leave to re-argue the correctness of its earlier decisions, and to reconsider those decisions, including decisions of a Commission constituted under a different statute. We note in that regard the decision of a Full Bench of the Commission in Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156 at [34] - ]35], albeit in a discussion of the Commission's award making power in s10 of the Act, where it was held: 34 We do not accept that s 179 of the Act precludes us from examining the decision of Schmidt J for the purposes of considering whether or not the provisions of the 1998 award meet the requirements of s 10 of the Act. The history of an award is clearly a relevant consideration in making such a determination. It will be necessary, in considering that award history, to evaluate the basis upon which a particular condition was awarded so as to determine, inter alia , the factors comprehended in the establishment of that provision. Such examination is usually undertaken to avoid a double-counting of factors already comprehended, but also extends to a consideration of the basis upon which an earlier provision may have been awarded so as to consider whether the conclusions reached in an earlier decision remain applicable, having regard to the evidence and submissions in the current proceedings. 35 Nothing in s179, precludes, in our view, the Commission examining, in that context, and for the purposes of making the determination required under s 10 of the Act, the reasons given for the making of the 1998 award. In doing so, the Commission will, subject to the correct application of principle which we will now discuss (and existence of relevant evidence) reach its own conclusion as to the appropriate terms of the award in accordance with the provisions of s10 of the Act. This is particularly so where the earlier decision of a single member is considered by a Full Bench in arbitral proceedings such as these. We respectfully adopt, as the correct approach, that which was stated by the Commission in Court Session in Abigroup Contractors Pty Limited v Inspector Kathleen Maltby [2002] NSWIRComm 18 at [7] as follows: We do not so view Kavanagh J's decision at first instance which, on one approach, is directed to whether the orders made by Wright J per se may be impeached. However, the appellant went so far as to submit that s179 of the Industrial Relations Act operated in such a way as to preclude a member of the Commission (even in arbitral proceedings) from questioning (that is, arriving at a different view) a decision of another member, and even where different parties were involved in later proceedings. This is said to extend to proceeding where a Full Bench is considering an earlier judgment of a single member or by another Full Bench. We have real doubts the section operates in such a manner.

75 As both parties have acknowledged, there is no express requirement in the Act that leave be sought or granted before any such reconsideration is undertaken. There is, however, an established practice that leave be sought in such circumstances. We note the decision of the Full Bench in WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68 where it was held (at [44] - [45]): 44 The defendants sought leave, to the extent necessary, to argue that aspects of the judgment in Ridge had been incorrectly decided. Mr Shaw argued that leave should not be granted, as to do so would be contrary to the practice of the Full Bench of the Commission and the Commission in Court Session, and of other intermediate appellate courts in reviewing prior judgments, as would lead to instability in the legal regime dealing with prosecutions under the Occupational Health and Safety Act . Mr Shaw referred to Lynch v GC Schmidt Pty Limited (1995) 59 IR 205, Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99 - 100 per Gleeson CJ, and Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 171 per Moffitt P. Mr Shaw accepted, however, that it was appropriate for the defendants to be allowed to fully pursue their submissions and that the Full Bench could determine the question of leave subsequently.

45 It is the practice of the Full Bench of this Court and of its predecessors to require parties to seek leave to re-argue the correctness of previous judgments at the Full Bench level : Lynch v GC Schmidt Pty Limited at 208 - 209, Oswald v New South Wales Police Service (1999) 90 IR 42 at 43; cf Clutha Developments Pty Ltd v Barry at 99 - 100. The significance of the issues in this matter do not, of themselves, in our view warrant the grant of leave to reargue the correctness of a recently delivered judgment. However, we have decided to grant leave in this matter because not all of the issues arising here were determined finally in Ridge. (Emphasis added)

76 We note that the decision in Lynch v GC Schmidt Pty Limited related to a reference to a Full Bench of certain questions of law pursuant to s297(2)(c) of the Act.

77 Plainly leave is required in the exercise of judicial powers on appeal or stated case. Given that we are not satisfied that the decision in the Ombudsman case is incorrect, it is not necessary for us to resolve whether leave is required in arbitral proceedings. We note, however, that if leave was required to re-argue the Ombudsman case, in light of our findings that there is no demonstrable error in the decision in that case, we would not be inclined to grant such leave.

78 Although satisfied that the Ombudsman case is both correct and directly contrary to the Association's application, that is not the end of the matter. The Association seeks (in its second "underpinning" submission) to distinguish the circumstances of the Ombudsman case from those surrounding the present application.

79 We note that the Association sought to distinguish the Ombudsman case on a narrow basis, the distinguishing feature being the absence in the proposed award of a prescribed mechanism for increasing staffing levels. That is, according to the Association, unlike the award sought in the Ombudsman case which required the appointment of permanent officers to vacant positions, the proposed award is silent as to how staffing levels may be increased or how any such staff may be appointed.

80 We do not consider that the Ombudsman case can be distinguished from the matter presently under consideration in the way the Association contends.

81 To accept that the proposed award is sufficiently distinguished from the award sought in the Ombudsman case requires us to accept the Association's first "complementary" argument that the proposed award does not require the creation of new positions or the appointment of persons to those positions.

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 or the conclusion is available.

83 We agree with the respondents that the proposed award requires the creation of 35 new positions, and the appointment of 35 new Fisheries Officers to those positions. This, in our view, is the true character of the present application.

84 There are relevant similarities between the award sought in the present case and those sought in the Ombudsman and TAFE cases, being the failure to appoint a person in accordance with general policy and the creation of part-time positions respectively. Given that we do not accept the Association's proposed construction of s65A of the 1979 Act in the Ombudsman case, we similarly do not agree with the Association's submissions regarding the interpretation of s22 of the 2002 Act. The Association accepted that the legislation under consideration in the Ombudsman case was relevantly similar to the 2002 Act presently being considered. As earlier stated, and notwithstanding the Association's submissions to the contrary, we accept that the proposed award requires the creation of positions and the appointment of persons to those positions. That being the case, the Association has failed to demonstrate that the proposed award, as properly characterised, can be distinguished from the award sought in the Ombudsman case.

85 We note that Mr Chin conceded that if the Association was wrong on this point, the application for the proposed award must fail. In this respect, Mr Chin stated in oral submissions that "if the Commission determines that the award the subject of these proceedings, requires the creation of new positions within the meaning of the [2002 Act] and the appointment of persons thereto, then the broad interpretation put by the respondent consistent with the Ombudsman case would seem to oust jurisdiction … If, as it says from the Ombudsman case, section 22 and its predecessors apply beyond individual appointments to particular positions, then it is conceded the Ombudsman case does stand as an obstacle to our submission as to the scope of s22".

86 What remains then of the Association's case is their second "complementary" argument that s22 does not operate to oust jurisdiction because there is no relevant appointment to a 'position' that is 'vacant' within the meaning of the 2002 Act.

87 Part 2.3 of the 2002 Act deals with the appointment process within the public service generally. Section 22 is but one part of that process, dealing with the circumstances in which proceedings may be brought in respect of any particular appointment (or failure to appoint). The Association's argument that s22 refers only to 'officer' positions (not temporary or casual positions) which are 'vacant' as defined by s26 of the 2002 Act (not new positions created by the proposed award) necessarily means, and Mr Chin conceded that it means, properly in our view, that the whole of Part 2.3 of the 2002 Act must have a similar interpretation.

88 We accept the respondent's submission that the interpretation of s22 (and therefore of Part 2.3) proposed by the Association would produce an absurdity in the appointment process within the Public Service. To accept the Association's argument would be to accept that Part 2.3 regulates the appointment of casual and temporary employees, but not permanent employees. Notwithstanding the able and innovative argument put by Mr Chin, we do not agree with the Association's contentions in that respect.

89 Further, we do not accept the Association's argument that a position created by the proposed award is not vacant within the meaning of s26 of the 2002 Act.

90 It does not necessarily follow from our decision that there can be no circumstances in which an argument as to statutory interpretation such as that advanced by the Association could succeed. The merits of any such argument would be determined having regard to the form of the award that is proposed, the character of the application, and the purpose of the legislation. However, this is not such a case. The Association's application for making the proposed award, in its present terms, cannot succeed.

91 For the reasons set out in this judgment we find there is no jurisdiction for the application.

92 The application 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.