New South Wales Lotteries Corporation and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143

Award - Appeal - Application for new award - Proposed award containing provisions for paid maternity leave and not paid paternity leave - Whether award discriminatory - Consideration of the Commission's approach to precedent - Leave to appeal granted - Appeal upheld - Award made - Reasons for extempore decision. CATCHWORDS : Discrimination - Appeal - Award - Application for new award - Proposed award containing provisions for paid maternity leave and not paid paternity leave - Whether award discriminatory - Consideration of the Commission's approach to precedent - Leave to appeal granted - Appeal upheld - Award made - Reasons for extempore decision.

Courts and judges - Precedent - Stare decisis - Appeal - Award - Application for new award - Proposed award containing provisions for paid maternity leave and not paid paternity leave - Whether award discriminatory - Consideration of the Commission's approach to precedent - Leave to appeal granted - Appeal upheld - Award made - Reasons for extempore decision. LEGISLATION CITED : Anti-Discrimination Act 1977 s 35 Industrial Relations Act 1996 s 23 s 169 s 188 s 193 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Collins v Commissioner for Public Employment (2001) 105 IR 59 D & R Commercial Pty Ltd and Flood (2002) 113 IR 344 Hospitals Employees Pharmacists (State) Award, Re [1979] AR (NSW) 348 Journalist (Specialist Publications) (State) Award, Re (unreported, IRC99/2719, 31 October 2000) Knowles v Anglican Property Church Trust (No 2) (1999) 95 IR 380 Local Government (State) Award 2001, Re [2001] NSWIRComm 281 CASES CITED : Nursing Homes, &c Nurses' (State) Award, Re (2001) 110 IR 433 Perrott v Xcellent Australia Ltd (1998) 84 IR 255 Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (2000) 49 NSWLR 551 (2000) 99 IR 69 Samuel v S & T Income Tax Aid Specialists Pty Ltd (1988) 24 IR 391 State Family Leave Case (1995) 59 IR 1 State Personal Carer's Case (1996) 68 IR 308 State Personal/Carer's Leave Case (1998) 84 IR 416 State Wage Case 1999 (1999) 88 IR 363 HEARING DATES: 11/05/2002 DATE OF JUDGMENT: 07/31/2003

APPELLANT AND INTERVENER Mr J V Murphy of counsel Solicitor: Mr I V Knight, Crown Solicitor (Mr R Salpeter) LEGAL REPRESENTATIVES: RESPONDENT Mr A A Hatcher of counsel Solicitor: Jones Staff & Co (Mr C G Staff)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BISHOP C McLEAY C Thursday 31 July 2003

Matter No IRC 3811 of 2002 NEW SOUTH WALES LOTTERIES CORPORATION AND THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES

Application by the New South Wales Lotteries Corporation for leave to appeal and appeal against a decision of Commissioner McKenna given on 7 June 2002 in Matter No IRC 8378 of 2001

REASONS FOR DECISION OF THE COMMISSION [2003] NSWIRComm 143

1 These proceedings concern an application by the New South Wales Lotteries Corporation for leave to appeal and, subject to leave being granted, an appeal against a decision of McKenna C given on 7 June 2002. The decision concerned an application made by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for a new award to be known as the New South Wales Lotteries Corporations (Salaries, Allowances and Conditions of Employment 2002) Award. For convenience that organisation will be referred to as the PSA.

2 The parental leave issue was listed for hearing on 3 April 2002. The Commissioner, in a decision delivered on 7 June 2002, refused to include the proposed parental leave provision in the award on the ground that the provisions provided for maternity leave only and not paternity leave. Appeal proceedings on 5 November 2002

3 At the conclusion of the hearing of the appeal on 5 November 2002, for reasons then identified, the Full Bench determined the matter and made the following statement and orders: This is an application for leave to appeal, and subject to leave being granted, an appeal against a decision of Commissioner McKenna given on 7 June 2002, insofar as the commissioner in consent award proceedings before her, rejected the inclusion in the proposed award of a maternity leave provision.

In this matter we have heard each of the parties represented as to the matters to be determined in the proceedings, that is, both the issues of leave to appeal and the appeal itself. As well as the appellant, the NSW Lotteries Corporation and the respondent, the Public Service Association, submissions were also heard from the Public Employment Office as intervener.

In light of the specific nature of the challenge before the Full Bench, the key issue to be determined is the correctness or otherwise of the decision of Commissioner McKenna insofar as she determined that she should reject the inclusion in the consent award of a maternity leave clause or provision.

Having heard the submissions made on behalf of the parties, and the intervener, we consider that this is a clear case for grant of leave. The decision of Commissioner McKenna was also relevantly in error. In view of the complications which have occurred as to the parties' consent award, by the decision appealed from, which we have determined is incorrect, it is appropriate that an award be made in final form as soon as possible. It has therefore been decided that we should determine these proceedings today with reasons to be provided in due course. Accordingly, the Full Bench now makes the following orders: 1. Leave to appeal granted. 2. Appeal upheld. 3. The decision of Commissioner McKenna of 7 June 2002 in Matter No IRC 2001/8278 is set aside. 4. The NSW Lotteries Corporation (Salaries, Allowances and Conditions of Employment 2002) Award be made by consent in terms of the application filed by the Public Service Association in the said matter on 13 December 2001, including maternity leave provisions, together with other modifications made at first instance, which are not the subject of appeal, with an operative date or operative dates as agreed by the parties, to be included in the document we direct be filed. 5. The appellant is directed to file and serve within fourteen days of today, in both hard copy and electronic form, a document giving effect to this decision. 6. The parties have liberty to apply for settlement of minutes or a speaking to the minutes if necessary. The reasons for decision are now provided.

The decision at first instance 4 The issue for determination before the Commissioner was whether the provision of paid maternity leave without a similar or "equivalent" provision of paid paternity leave meant that the award proposed did not provide equal remuneration and other conditions of employment and was therefore contrary to s 23 of the Industrial Relations Act 1996.

5 McKenna C initially considered the operation of s 23. Reference was made to the mandatory terms of the provision and the legislative intent as reflected in the second reading speech for the Industrial Relations Bill 1995. It was concluded that s 23 operated as a mandatory provision and that, accordingly, the Commission could not make an award which provided unequal remuneration or other conditions of employment for men and women. The Commissioner examined the development of parental leave entitlements in the New South Wales jurisdiction as well as the various provisions in the Industrial Relations Act concerned with equality of opportunity in employment.

6 In dealing with the consideration by the Full Bench in Re Nursing Homes, &c Nurses' (State) Award (2001) 110 IR 433 of her earlier decision in Re Journalists (Specialist Publications) (State) Award (unreported, IRC 99/2719, 31 October 2000) the Commissioner observed that there was no occasion for an appeal to be lodged against her decision in the Journalists (Specialist Publications) (State) case as in proceedings in that matter subsequent to the decision of 31 October 2000, all entitlements in the Award were dealt with by consent or without objection of the parties. The Commissioner distinguished the approach taken in the Journalists (Specialist Publications) (State) case on the basis that different statutory provisions of the Industrial Relations Act applied to award review proceedings under s 19 and award making. In particular, award review proceedings were expressly concerned with issues of discrimination whereas (apparently) award making was not. The Commissioner referred to the decision in the State Wage Case 1999 (1999) 88 IR 363 at 395 in support of her conclusion that proceedings under s 10 of the Act are concerned with the "substantially wider obligations in relation to ensuring equality". 7 In considering the award clause providing for paid maternity leave McKenna C concluded: The proposed clause provides paid parental leave entitlements for females but not for males. The clause is therefore self-evidently discriminatory on the basis of sex; the award provides a paid leave entitlement to females that is not provided to males. The Commissioner referred to s 35 of the Anti-Discrimination Act 1977 but without any discussion of commentary on the provision other than to observe that issues of discrimination did not arise for consideration in the proceedings.

8 The Commissioner in considering the requirements of s 169 of the Industrial Relations Act, focused on the phrase "take into account" and in that regard referred to the observations made by the Full Bench in D & R Commercial Pty Ltd and Flood (2002) 113 IR 344 concluding that s 169 imposes a mandatory obligation but does not dictate any particular outcome or result.

9 The Commissioner then undertook a balancing exercise of what were said to be the "competing considerations" in s 169 and s 23. The Commissioner concluded that, as a matter of construction, s 23 imposed a mandatory and positive obligation on the Commission to ensure that awards provided equal remuneration and other conditions of work whilst s 169(1) allowed the Commission to exercise its discretion in taking into account the principles of the Anti-Discrimination Act. The Commissioner's conclusion was that: [T]he positive obligation in s 23 … does not give way to a concomitant but nonetheless seemingly subordinate obligation to take into account the principles in the Anti-Discrimination Act ... It was also observed that: Self-evidently, some provisions, such as those relating to pregnancy-specific issues such as pregnancy itself, childbirth, stillbirth and transfer to safe duties can sensibly be read to refer only to females, but other entitlements - such as paid and unpaid leave entitlements - are not provided on an equal basis under the application to males and females performing work of equal or comparable value. Given the operation of s 23, I do not consider that I have the discretion to make an award specifying gendered paid leave entitlements - because that would amount to a jurisdictionally-impermissible failure to ensure equal award remuneration and other conditions of employment for men and women doing work of equal or comparable value and a failure to give effect to the express legislative object of ensuring equality of remuneration. In reaching this conclusion, I have taken into account the principles and exceptions contained in the Anti-Discrimination Act pursuant to s 169(1) as well as the public interest criteria pursuant to s 146(2)(a)-(b). I consider myself bound to reject the parties' consent application in a number of respect[s], as adverted to in this decision.

10 The Commissioner also referred to authority regarding the exemption provided to religious bodies in s 56 of the Anti Discrimination Act. The Commissioner then reasoned that the Parliament may be taken to have legislated with knowledge of the former Commission's decisions in State Family Leave Case (1995) 59 IR 1 and State Personal Carer's Case (1996) 68 IR 308. Similarly, the Parliament, it was observed, must have had knowledge of the terms s 35 of the Anti Discrimination Act when it included s 23 in the Industrial Relations Act in 1996.

11 The decision concluded in this way: I am somewhat querulous (sic) (given the scope of the contemporary legislative provisions of the 1996 Act to ensure equality of opportunity) about the submission in the proceedings that "biology is destiny" in terms of which of the sexes should care for infant children and, as a corollary, which employees have preferential parental leave entitlements. Mr Murphy also submitted, for instance, that it is in the public interest to provide paid maternity leave and that such provisions actually advance quality - and I note that issue has been squarely in the public domain since the recent release by the Sex Discrimination Commissioner, Pru Goward, of a paper titled Valuing Parenthood - Options for Paid Maternity Leave: Interim Paper 2002 , which was prepared by the Sex Discrimination Unit of the Human Rights and Equal Opportunity Commission. Given that I have determined I do not have the discretionary ability to give effect to the parties' consent position in specified respects, as elaborated in the decision, it is unnecessary to express any view concerning the substantive merits of the parties' consent application in relation to the provision of unequal parental leave provisions. Such discretionary considerations simply do not arise here. I direct the parties to confer in the light of this decision. This matter will be relisted on a date that is convenient to the parties.

12 The appellant identified the following four reasons why leave to appeal should be granted: (1) The appeal raises the important question of the interpretation and application of s 23 of the Act;

(2) The appeal raises the important question of the interpretation and application of s 169 of the Act;

(3) The appeal raises the important question of the interpretation and application of s 35 of the Anti-Discrimination Act 1977; (4) The appeal raises the important questions of when a Commissioner sitting alone can decline to follow a decision of the Full Bench of the Commission.

13 The respondent supported the application that leave be granted and submitted: Leave to appeal ought be granted ... In particular, the Commissioner's decision raises doubt as to the validity of paid maternity leave provisions in a number of the Commission's awards. One of these awards, the Crown Employees (Public Service Conditions of Employment) Award 1997, to which the PSA is the union party, applies to thousands of public servants working in this state. It is in the public interest that the Full Bench grant leave to appeal so that the appeal may be fully determined and the status of award maternity leave provisions made clear.

14 The parties also provided, on the issue of leave, a detailed schedule setting out the areas of employment in the New South Wales public sector where paid maternity leave is a condition of employment either by award provision or statutory determination. It was submitted that the validity of such prescriptions have been thrown into doubt by the Commissioner's decision and the decision involves a conscious failure to follow binding authority. It is contended that it is plain that leave to appeal must be granted.

15 Mr J V Murphy of counsel appeared for the appellant, the New South Wales Lotteries Corporation and the intervener, The Public Employment Office. Mr A A Hatcher of counsel appeared for the respondent, the PSA.

16 The appeal is brought against the whole of the decision of McKenna C made on 7 June 2002. The grounds of appeal are: 1. In the Decision of 7 June 2002, the Commissioner refused to make an award in terms consented to between the Appellant and the Respondent on the basis that the award contained a provision for paid maternity leave and not for paid paternity leave;

The provision for paid maternity leave has existed in previous awards that have applied to the parties going back to 1992. Employees of the Respondent have enjoyed the benefit of paid maternity leave from the time when such employees were public servants and covered by determinations of the Public Service Board;

In refusing to make the award in the terms consented to by the parties, the Commissioner relied upon section 23 of the Act and found that the provision of paid maternity leave (without equivalent paid paternity leave) meant that the award did not provide equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. In so finding, the Commissioner erred;

The Commissioner erred in her interpretation and application of section 23 of the Act when exercising the Commission's powers under section 10 of the Act;

The Commissioner erred in her interpretation and application of section 169 of the Act when exercising the Commission's powers under section 10 of the Act;

The Commissioner erred in failing to properly take into account the principles of the Anti-Discrimination Act 1977 (NSW) when exercising the Commission's powers under section 10 of the Act as required by section 169 of the Act;

The Commissioner erred in failing to follow the decision of the Full Bench of the Commission in Nursing Homes, &c Nurses' (State) Award & Anor [2001] NSWIRComm 298;

The decision of the Commissioner was contrary to the decision of the Full Bench of the Commission in Nursing Homes, &c Nurses' (State) Award & Anor [2001] NSWIRComm 298;

The decision is contrary to the public interest; and

Such other grounds as this Commission deems fit.

17 The Full Bench is required to grant, pursuant to s 188(2) of the Industrial Relations Act, leave to appeal if, in its opinion the matter is of such importance that, in the public interest, leave should be granted. Leave is not, of course, a mere formality and is only to be granted by the Full Bench upon a proper case being made out by the appellant: for example, Perrott v Xcellent Australia Ltd (1998) 84 IR 255 at 265 - 266. The approach to be applied has been considered in a number of Full Bench decisions on numerous occasions by the Commission. See, for example, the important decision in Knowles v Anglican Property Church Trust (No 2) (1999) 95 IR 380 at 381 - 382. In that decision the Full Bench referred to several relevant factors including whether the appeal raised substantial issues or principles of law or had wider implications for the jurisprudence of the Commission, including whether the decision had widespread practical application.

The submissions of the appellant and the intervener

18 The central contention of the appellant and intervener is that s 23 of the Industrial Relations Act cannot apply with respect to conditions of employment that can only apply to one sex. The appellant argues that it is not possible to provide equal conditions of employment in this situation because of the biological differences between men and women, namely the child bearing role of women. This contention is said to be supported by the exemption contained in s 35 of Anti Discrimination Act. Accordingly, the appellant submits that the Commissioner's decision fails to give any practical effect to s 35 of the Anti Discrimination Act as required by s 169 of the Industrial Relations Act.

19 It is convenient here to set out the relevant statutory provisions. That is, s 23 and s 169 of the Industrial Relations Act and s 35 of the Anti Discrimination Act: 23 Equal Remuneration and Other Conditions Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. 169 Anti-discrimination Matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977. (2) An issue that is the subject of proceedings before the Administrative Decisions Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 may not be the subject of proceedings before the Commission without the leave of the Commission. (3) The Commission may admit in proceedings before it evidence given before, or findings made by, the Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977. This subsection does not prevent the admission of any other evidence in the proceedings that contradicts any such evidence or finding. (4) An industrial instrument may be varied at any time by the commission in order to remove any unlawful discrimination arising from the instrument. An application for such a variation: (a) may be made by a party to the instrument, and (b) may be made by the President of the Anti-Discrimination Board with the leave of the Commission. (5) This section does not apply to criminal proceedings before the Commission in Court Session. 35 Pregnancy or childbirth Nothing in this Part renders unlawful discrimination by a person against a man on the ground of sex by reason only of the fact that that person grants to a woman rights or privileges in connection with pregnancy or childbirth. 20 The appellant contrasts the Commissioner's approach as to conditions provided for pregnant women only and the provision for maternity leave. The appellant submits that the Commissioner appears to consider maternity leave as being for the sole purpose of providing care for infant children and not related to pregnancy or childbirth. The appellant submits that this assumption is incorrect.

21 The appellant points to the parental leave provisions of the Act and submits that maternity and paternity leave are directed at different needs and are benefits of a different kind. Accordingly, they are fundamentally distinct and s 23 must be able to accommodate these different purposes.

22 The appellant also highlights the failure of the Commissioner to follow the Full Bench's decision in Re Nursing Homes, &c Nurses' (State) Award at 444 - 445 in paragraphs [34] to [39] where it was said: [34] We turn then to deal with the ADB's argument that the award is otherwise discriminatory and should not be made, in the light of those conclusions. [35] As we have noted, reliance for this argument was sought in the approach adopted by McKenna C in the Journalists (Specialist Publications) Award case, that award there having arisen for review under s 19 of the Act. The alternative argument urged upon the Full Bench by the ADB was that even if we were satisfied that the award proposed was not unlawfully discriminatory under the Anti-Discrimination Act , it would be contrary to the wider concerns inherent in the Act in relation to the prevention of discrimination at workplaces and would thus not be awarded by the Commission. [36] In reviewing the Journalists (Specialist Publications) Award under s 19 of the Act, McKenna C took the view that while a provision for paid maternity leave was not unlawfully discriminatory under the Anti-Discrimination Act , having regard to the express exemption provisions of s 35 of that Act, the absence of a provision for paid paternity leave in the award in question was nevertheless discriminatory, in the wider sense in which that word is used in the Act. As part of the s 19 review, the Commissioner thus required the insertion of a parental leave provision in the award, so as to make paid leave available to 'the parent who is the principal care-giver of the child'. The award parties concerned resisted this approach, to no avail. The result was an order which removed from the award an agreed and lawful provision giving female employees who give birth to a child an entitlement to paid maternity leave, and which inserted an entitlement of a different character, namely paid leave for employees who are both parents and principal care givers of a child. [37] That decision was not appealed. Nevertheless, we are satisfied that the approach adopted by the Commissioner was in error and should not be followed, it being inconsistent with the decision of the Full Bench in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 at pp49 to 51, which the Commissioner was bound to follow. The effect of the Commissioner's approach was that the principles contained in s 35 of the Anti-Discrimination Act were given no practical effect, a result contrary to the conclusion reached by the Full Bench at p51 of the Principles for Review of Awards Decision , in relation to the regard which the Commission must pay to the principles contained in the Anti-Discrimination Act, when reviewing awards under s 19 of the Act. It was also inconsistent with the conclusion reached in the 1998 Personal/Carer's Leave Case earlier quoted, that exemptions provided by the Anti-Discrimination Act must also be taken into account by the Commission in the exercise of its discretions. [38] We also consider that the approach adopted was inconsistent with what was said at p46 of the Principles for Review of Awards Decision : 'We observe also that the Commission is not given a general discretion in s19 to insert into an award being reviewed any other conditions which the Commission might consider a "modern" award should contain. The review directed by s 19 concerns the provisions of existing awards. Unless properly arising from the matters specified in s 19 itself, during a review the Commission is not at liberty to insert into awards other conditions not already contained therein. If award parties wish to advance such matters they must, in our view, utilise the other provisions of the Act to which we have referred.'

[39] For these reasons it is not appropriate to apply the decision of McKenna C in Journalists (Specialist Publications) Award . In so deciding, we do not consider it necessary to express a view as to whether s 169(1) confines the Commission in the exercise of its functions to consider only the actual terms of the Anti-Discrimination Act , as even upon a broad construction of s 169(1) we do not consider that the subject provisions of the new award offend the "principles contained in the Anti-Discrimination Act 1977". 23 The appellant submits that a narrow interpretation should be given to s 23. In particular, it submits that any conditions of employment for the purposes of s 23 must therefore relate to conditions that are attached to the value of work, that is the work, skill and responsibility required or the conditions under which the work is performed. On this approach, it was said, because leave provisions are not related to the value of work and do not reflect any inherent value of the work, s 23 would not apply to them.

24 The appellant also argued that s 23 should be read in light of relevant international conventions, namely the Equal Remuneration Convention 1951 (International Labour Organisation (ILO) Convention No 100), the Maternity Protection Convention (ILO Convention No 183) and Convention on the Elimination of All Forms of Discrimination Against Women 1981 (CEDAW), submitting that these conventions recognise the special role or purpose that maternity leave plays in overcoming unequal treatment of women due to their childbearing role.

25 The appellant submits that the Commission should follow the approach of various members of the Commission who recently have made awards that provide for paid maternity leave without equivalent provisions for paid paternity leave. Particular reference was made to the decision of Schimdt J in Re Local Government (State) Award 2001 [2001] NSWIRComm 281 and to the list of awards and other provisions relied on as part of the case on leave to appeal.

26 The appellant's final submission was that the Commission should consider the public interest in the provision of paid maternity leave, particularly in view of the issue currently being on the "national agenda". The appellant observed that if the Commission finds that the award of paid maternity leave without the award of paid paternity leave is discriminatory, it is likely that some employers may resort to alternative, cost-limiting approaches to parental leave such as removing the provision of paid maternity leave from awards or from other methods by which paid maternity leave is a condition of employment; for example, organisational policies, procedure manuals or the like. Respondent's submissions 27 The respondent supports the appellant's appeal, in particular that the Commissioner erred in failing to recognise that s 23 does not have application on the facts of the case as maternity leave and paternity leave are benefits materially different in kind to each other.

28 However, the respondent does not support the appellant's approach to the construction of s 23; that s 23 should be interpreted as limited to conditions which are attached to the value of work. The respondent submits that such an interpretation would lead to unsatisfactory outcomes. For example, the Commission could make an award that provides for sick leave on a discriminatory basis.

29 The respondent also did not support the appellant's criticism of the way in which the Commissioner interpreted the general effect of s 23, particularly the reading of the provisions of s 169 as subject to the requirements of s 23. The respondent submits that the Commissioner's error lay essentially in her application of s 23 as involving the treatment of maternity leave and paternity leave as comparable entitlements. Commission's approach to precedent 30 This present issue was in substance dealt with by the Full Bench decision in Re Nursing Homes &c Nurses' State Award. In that case, the Full Bench considered McKenna C's decision in Journalists (Specialist Publications) State Award in which the Commissioner refused to make an award that contained paid maternity leave and not paid paternity leave provisions. The Full Bench found that the Commissioner's decision was in error. The relevant part of the decision of the Full Bench is set out earlier herein at paragraph [22].

31 The Commissioner failed to follow the Full Bench decision in Re Nursing Homes &c Nurses' State Award. The Commissioner also failed to follow the conclusions reached in the Full Bench decisions in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 at 49 - 51 and in the State Personal/Carer's Leave Case (1998) 84 IR 416.

32 The Commission's approach to precedent was dealt with in the judgment of the majority in Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (2000) 49 NSWLR 551 at 580 - 582 (2000) 99 IR 69 at 96 - 98 in paragraphs [53] to [56] from which we extract the following: [53] Finally, we would wish to note that as part of the approach of Maidment J in distinguishing the judgment in Dun & Bradstreet v Robbie his Honour relied upon the speech of Lord Halsbury in Quinn v Leathem [1901] AC 495 at 506. However, in a real sense in this particular case, the reliance by his Honour upon that speech did no more than beg every relevant question. His Honour was, of course, not sitting as a member of an appeal bench but as a trial judge and, as such, bound by decisions of Full Benches of this Court and of its predecessors. The policy reasons for that situation are so obvious one hesitates to state them. However, they are helpfully set out, both in terms of principle and of policy, in a decision of the former Industrial Commission in Court Session in In re Hospital Employees Pharmacists (State) Award [1979] AR (NSW) 348 at 350-351 where the Full Bench ( Beattie P, Cahill and McClelland JJ) said: "It was the duty of the chairman to follow a decision of the Commission which was directly in point. The scheme of the Act provides for the Commission to exercise a supervisory appellate jurisdiction concerning decisions of the conciliation committees. A failure at committee level to follow decisions of the Commission is conducive to the bringing of appeals and the inevitable delay in finalizing industrial claims which an appeal causes. The present case provides an example. The principle involved is aptly stated by Stephen J in Viro v The Queen (1978) 141 CLR 88 at 129 in these terms: 'The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as the precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective; if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine.' Apart from such consideration, any failure at committee level to follow decisions of the Commission can only impair the consistency and uniformity in decisions of the various tribunals constituted by the Act which has always been seen as desirable. The decision of Dey J was not only binding on the committee but, in our view, was also correct."

[55] … The approach … also serves to emphasise the important policy considerations involved in following precedent, particularly in precedent being followed by single judges sitting at trial or first instance, considerations which go to the very legitimacy of the legal system itself. The need to maintain consistency in the law, even when a Full Bench or Full Court is considering or reconsidering earlier decisions has been stated many times. A useful synthesis of authority, the utility of which is emphasised when it is recognised as having been stated in an industrial context, is to be found in the judgment of Kennedy P, Franklyn and Anderson JJ in Federated Miscellaneous Workers' Union of Australia, WA Branch v Nappy Happy Hire Pty Ltd t/as Nappy Happy Service (1994) 56 IR 62 at 63 - 64, 67-68 . Their Honours are, of course, highly respected members of the Supreme Court of Western Australia although, in that case, they were sitting as the Western Australian Industrial Appeal Court. Their Honours deferred to the principle that "the power to overrule is to be used sparingly and will rarely be used to reconsider the construction of a statute". That statement as applied to considerations by subsequent appellate benches is sufficient demonstration of the inappropriateness of a single judge attempting to depart from Full Bench authority. Significantly, in coming to that conclusion, their Honours relied upon important statements by Gibbs J and Stephen J in Queensland v The Commonwealth (1977) 139 CLR 585 at 599 and 603 respectively, a case in which their Honours thought it appropriate to apply and follow an authority decided only two years before, even though they had disagreed with the decision in the earlier case by being in the minority. Their Honours also relied upon the following passage in the judgment of Dawson, Toohey and McHugh JJ in Nguyen v Nguyen (1991) 169 CLR 245 at 269: "Where a court of appeal holds itself free to depart from an searlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional ... " [56] Further, the importance of this approach is even clearer in the context of a specialist jurisdiction or where the jurisdiction is relatively small (for example, smaller than the major superior court in the particular jurisdiction). This consideration was discussed in some detail by Kirby P, as President of the Court of Appeal, in Cepus v Industrial Court of New South Wales (1995) 60 IR 113 at 117-118 and where his Honour relevantly said (at p 118) that "persisting with fundamentally different approaches to the construction of statutes or industrial Determinations, is not conducive to the maintenance of respect for judicial tribunals". (emphasis added) The obligations of a Member of the Commission sitting alone in respect of the requirements of precedent were stated very plainly. Single members of the Commission are obliged to follow decisions of Full Benches. It is regrettable that this elementary issue would have to be revisited so soon after the judgment in Reich .

33 Other important features of the principle of precedent or stare decisis include the importance of restraint in judicial or quasi-judicial decision-making without which principled decision-making might easily degenerate into decision-making dependant essentially on the identity of the decision-maker. There may be a very fine line between individualistic decisions and idiosyncratic ones. As Gleeson CJ said in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99 when Chief Justice of New South Wales: This Court is not bound by its own decisions and makes no claim to infallibility. It has the power to overrule [an earlier Court of Appeal decision]. The Court is, however, guided in the exercise of all its powers, including its power to overrule earlier decisions, by certain principles. One such principle is a principle of restraint embodied in the axiom stare decisis. As Brennan and Deane JJ observed, in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29, citing Broom's Legal Maxims , that axiom attributes authority to judicial precedents in order "to keep the scale of justice steady, and not liable to waver with every new judge's opinion". (emphasis added) It must be kept in mind, however, that his Honour, in referring to the Court not being bound by its own decisions and to the Court's power to overrule earlier decisions, was referring to the situation with a court of appeal and not to that of a judge sitting alone.

34 Rules or practices as to precedent are not empty formalities. They have significant practical utility. For example, in assisting litigants or potential litigants to assess the likely outcome of litigation, actual or contemplated. The need for disputation, litigation and consequent use of court time is thereby minimised. In the present case, if McKenna C had followed the precedent binding on her, it would have avoided the cost and inconvenience which was occasioned to the parties in respect of their consent award and the consent award proceedings. This appeal and the further cost and inconvenience which resulted, have been necessary only because of the Commissioner's erroneous decision. Members should be astute in avoiding visiting such situations on any party, but particularly so, consenting parties. It is almost inevitable that, if a Member rejects an application consented to by the parties on the basis of a view of the law, either statute law or case law, which is contrary to binding precedent, or on the basis of an unconvincing attempt to distinguish binding precedent, an appeal will result. It is not possible to conceive of any court or jurisdiction where that is a desirable or appropriate situation. However, having regard to the facility in this jurisdiction provided by s 193 of the Industrial Relations Act, a Member who has genuine doubts as to the correctness of earlier precedent is able to refer the proceedings, or an issue in the proceedings to the President of the Commission for consideration whether the issue should be referred to the Full Bench. That course was open to the Commissioner in this case, as it would have equally been open to the President to decline to refer the matter to the Full Bench because the issue was the subject of recent and binding authority.

35 This case appears to be the first significant departure from the proper approach to precedent in the arbitral jurisdiction of the Commission and its predecessors since the decision in Re Hospital Employees Pharmacists (State) Award [1979] AR (NSW) 348 (a case cited in Reich). It is therefore appropriate that we emphasise the continuing importance of that decision. Further, the Chief Industrial Magistrate has had no difficulty in acting in accordance with the usual approach. As long ago as his Worship's decision in Samuel v S & T Income Tax Aid Specialists Pty Ltd (1988) 24 IR 391 at 393 - 394, he made plain the approach that must be adopted. Interestingly, the President of the South Australian Commission (sitting as the Senior Judge of the Industrial Relations Court of that State) recently referred to the relevant passages of the judgment in Reich with approval: Collins v Commissioner for Public Employment (2001) 105 IR 59 at 61 - 63.

36 It is essential that single Members of the Commission approach this issue mindful of their obligations; not in any legalistic or technical way but in terms of the spirit of the concept, having regard to its purposes and its policy bases which have particular importance in a jurisdiction such as this Commission. There is a clear basis here for the grant of leave to appeal. Conclusions 37 The gravamen of McKenna C's decision was that, in providing paid parental leave entitlements for females but not for males, the proposed clause was discriminatory. We emphasise the observations of the Full Bench in Re Nursing Homes, &c Nurses' (State) Award at [36], (cited earlier) that paid maternity leave is an entitlement of a different character to paid leave for employees who are parents and principal care givers of a child.

38 The maternity leave provided by the award has two elements. A component of paid leave and a component of unpaid leave. When considered with similar leave provided by the award, for example, parental or adoption leave, it becomes obvious that the overall grant of maternity leave is designed for a specific situation and not only for the child-care aspect of the parent's role. The paid maternity leave is designed specifically for the particular or personal aspects of the pregnancy and the birth of the child, rather than the subsequent child care responsibilities. The paid leave is referrable to the fact of pregnancy and available only to a person who is or has been pregnant. As such, maternity leave is not gender specific. For example, where two females share the responsibility of caring for a child, the non-pregnant partner while being female, would not be entitled to maternity leave since the relevant circumstance, the fact of being pregnant, has not arisen. Similarly, if there is a situation where two males share child care responsibilities, neither would be entitled to paid maternity leave because the relevant circumstances giving rise to the entitlement are not present.

39 As earlier observed, the leave provisions of the consent award provide specific entitlements for leave for those employees who have child care responsibilities. Parental and adoption leave, provided for by clause 19.4 and clause 19.3 respectively, are available to both men and women, including women who are not pregnant, for the care of a child. Thus, there is no discrimination on the basis of gender, or unequal treatment by reference to gender, in the provision of unpaid parental and adoption leave for a period of up to 12 months. The unpaid portion of the maternity leave entitlement is comparable to these entitlements and thus may be reasonably assumed to represent an intention to provide leave on a comparable basis for the "child care" part of the period of leave after the pregnancy. The consent award in providing a nine week paid maternity leave component in clause 19.2(g) provides this benefit to an employee who is pregnant by reference to that consideration and factors associated with the confinement. Seen in this way, it cannot be said that there is any unequal treatment arising from these provisions. Any different benefit or treatment could not seriously be said to result from discrimination on the basis of sex.

40 We confirm the orders earlier made granting leave to appeal, upholding the appeal and making consequential orders. _____________________

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