DPE's contentions
21In helpful written submissions prepared by counsel for the DPE, it was pointed out that there was no dispute between the parties that salaries and salary based allowances in the relevant awards should be increased by 2.5 per cent from the first full pay period commencing on or after 1 July 2011, but the issue that arose was the conditions under which that result could be achieved. The starting point was the amendment introduced by s 146C(1), namely, that the Commission must, in making or varying any award or order, give effect to any policy on conditions of employment of public sector employees. It was pointed out that, in sub-section (8), an award or order included an award as defined in the Dictionary. In turn, the Dictionary to the Industrial Relations Act defined award to mean an award made or taken to be made by the Commission under the Act and included any order of the Commission under the Act that sets conditions of employment.
22It was next noted that, under s 146C(3), an award or order of the Commission did not have effect to the extent that it was inconsistent with the obligation of the Commission under that section. At this point it might be observed that the applications presently before the Full Bench seek the varying of awards regarding salary and, therefore, the Commission is under an obligation to give effect to any relevant Government policy on conditions of employment of public sector employees. It is also clear that such a variation would not have effect if it were inconsistent with the obligations of the Commission under s 146C. Clearly enough, a variation is an order or award .
23The next step in the argument for the DPE involved consideration of the provisions of the Regulation. Under cl 6(1) a number of policies were declared but were to be subject to compliance with the declared paramount policies. Sub-clause 1(a) allowed increases in remuneration or other conditions of employment that did not increase employee-related costs by more than 2.5 per cent; under sub-clause 1(b), increases in remuneration or other conditions of employment that increased employee-related costs by more than 2.5 per cent could be awarded only if sufficient employee-related cost savings had been achieved to fully offset the increased employee-related costs.
24Emphasis was then placed upon the terms of cl 6(1)(d), namely, that awards and orders were to resolve "all issues the subject of the proceedings" and that there was not to be leave reserved for a matter to be dealt with at a later time or to allow extra claims to be made "during the term of the award or order", although that did not prevent variations made with the agreement of the relevant parties. Under sub-clause 1(e), changes to remuneration or other conditions of employment could operate only on or after the date the relevant parties "finally agreed to the change" if the award or order was made or varied by consent or the date of the Commission's decision if the award or order was made or varied in arbitration proceedings. This provision was subject to the operation of cl 6(2), namely, that a different date of operation may apply by agreement or in "exceptional circumstances."
25In compliance with cl 6(1)(d), the Commission was said to be obliged to resolve all the matters in issue in the proceedings. It was submitted that, allowing a party to "subsequently re-agitate matters" the subject of the proceedings, resulted in the award or order being contrary to this clause. It was submitted that the very notion of an interim award granting increases was clearly at odds with the requirements of cl 6(1)(d). The issue in the proceedings involved the salaries being paid to employees covered by the relevant awards. In making an interim increase the Commission would not be resolving "all issues" the subject of the proceedings but would leave a salary claim for more than 2.5 per cent for another day and in doing so, the Commission would be acting contrary to cl 6(1)(d).
26The next step in the argument revolved around the requirement for a no extra claims clause. As we noted earlier, s 146C(3) provides that an order or award of the Commission is ineffective to the extent that it is inconsistent with the obligations of the Commission under s146C. It was submitted that the operation of cl 6(1)(d) required a no extra claims clause to be inserted in any award or order made, as such a provision would resolve all issues the subject of the proceedings. The insertion of such a clause would prevent any new issue or matter being argued by way of further increases during the term of the award or order.
27It was submitted for the DPE that the issue of construction was to be determined by the ordinary and grammatical meaning of the words of the provision. Reference was made to the frequently cited cases laying down the proper approach to statutory construction such as K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315; (1985) 59 ALJR 658; (1985) 2 MVR289; (1985) 3 ANZ Ins Cas 60-653; (1985) Aust Torts Reports 80-323; BC8501100; Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 and 242-243; (1990) 91 ALR 16; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 10 MVR 257; (1990) 45 A Crim R 373; BC9002951 and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 318-382; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41; BC 9801389. The submission accepted that, in accordance with the judgment in Project Blue Sky , the construction of the statute must be "purposive" and referred to the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in the following terms:
Conflicting statutory provisions should be reconciled so far as is possible
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In C ommonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
28Reference was also made to the joint judgment of McHugh A-CJ, Gummow and Hayne JJ in Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; (2004) 218 CLR 273 at [11]; (2004) 205 ALR 1 at 11; (2004) 78 ALJR 585; (2004) 59 IPR 1; (2004) AIPC 91-973; [BC200400864]:
In Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 112, McHugh J observed:
[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.
His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd . (1977) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408):
It is well settled that at common law, apart from any reliance upon s15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.