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

New South Wales Lotteries Corporation and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143 - NSWIRComm 2000 case summary — Zoe

[44]

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.

[46]

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.'

[54]

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]

[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 .

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