Consideration
25Section 146C of the Act, requiring, as it does, the Commission to give effect to the provisions of cl 6(1)(f) of the Regulation, has the effect, in our view, of precluding the exercise of the power, otherwise residing in the Commission under the Act, to vary the award in the manner sought by the PSA in its application. Whilst that conclusion should result in the appeal being dismissed (for reasons which shall be discussed below), it should not result in leave to appeal being refused. We consider it is in the public interest that there be a further consideration of these important provisions which have wide ranging implications for the regulation of public sector employment in New South Wales and, in this particular case, the management of excess staff.
26Our reasons for dismissing the appeal are as follows:
(1)In essence, by its submissions, the PSA contended that the effect of the provisions of cl 6(1)(f) was that any particular extant policy made by the Government, from time to time, concerning the management of excess public sector staff may not be included (that is to say, copied) wholly or by reference into an award. That, it was argued, constituted the full limit of the curtailment placed by cl 6(1)(f) upon the power of the Commission to make awards or orders. However, we do not consider that a textual analysis of the sub-clause is permissive only of the very limited construction proposed by the PSA. Furthermore, as we will discuss below in the later points of our reasoning, when the context (including the balance of cl 6 and s 146C of the Act) and purpose (taking into account extrinsic material in the form of a very limited reference to award history) of cl 6(1)(f), as well as the legal and practical consequences which may flow from the adoption of that limited construction, are considered, it is clear that the words of the sub-clause should be construed as having a wider meaning than that proposed by the PSA, and, in the result, should be construed in a manner consistent with that ultimately found by Boland J;
(2)We begin with a textual analysis of the words of cl 6(1)(f) (which provision is set out at paragraph [8] of this judgment). The language of the sub-clause, when read literally, is also permissive of a broad construction. In particular, the word 'policies' appearing within the phrase "[p]olicies regarding the management of excess public sector employees", can have a general or global meaning (for example, as meaning courses of action adopted by the Government in relation to the management of excess staff), and is not necessarily confined to meaning a specific policy, in the sense of an instrument containing such a policy. Construal of the word 'policies' in the wider sense is supported by the interpretation of the word 'policy', in the context of s 146C of the Act, which was provided by French CJ in PSA (set out earlier in this judgment). Relevantly, in this respect, his Honour found (at [39]) that s 146C of the Act readily accommodated the concept of 'policy' as a principle or principles adopted or proposed by Government, and that the meaning of the word did not extend to a policy which was ambulatory. The narrow construction proposed by the PSA defines 'policies' as meaning actual extant instruments, which instruments, presumably, could be altered or revoked by the Government from time to time. In other words, the PSA adopts a definition of 'policies' which is, in effect, ambulatory and, therefore, extends beyond the meaning assigned to the notion by French CJ. (The difficulty with or problems which may arise from a definition of 'policies' which is ambulatory will be discussed below.) Similarly, the notion of 'incorporation', in the context of the balance of cl 6(1)(f), is also capable of a broader interpretation than that proposed by the PSA. In particular, the phrase "are not to be incorporated into industrial instruments", considered in light of its ordinary grammatical meaning, may be construed broadly to mean that, where a policy or policies concerning the management of excess staff exists, conditions or matters relating to that subject matter may not be included in or regulated by awards. The words are not necessarily confined to mean that the subject matter of a particular policy may not be repeated or copied, in exact terms, into an award. Whilst we would accept that the wording of cl 6(1)(f) is somewhat inelegant and that, as a result, ascertaining the proper construction of the sub-clause via a textual analysis alone is not entirely straightforward, the preceding analysis demonstrates that, without requiring a strained interpretation, a broader construction the sub-cl than that proposed by the PSA is textually available. The ultimate construction we prefer is, however, better supported by the contextual and purposive analysis which follows;
(3)The immediate context, beyond the words of the sub-clause itself, is the balance cl 6 of the Regulation. When the balance of the clause is taken into consideration, it becomes clear that each of the remaining policies under the clause (that is, sub-cls (1)(a) to (1)(e)), restrict, in and of themselves, the power otherwise reposing in the Commission under the Act to make or vary awards. No reference to any source outside those policies is required (or permitted), given that the content of the various restrictions imposed by the policies reside entirely within each sub-clause (for example, cl 6(1)(a) constrains the Commission's power to vary wages for public sector workers by requiring that any increases in remuneration must not increase employee-related costs by more than 2.5% per annum). The contention by the PSA, as already noted, that cl 6(1)(f) referred to an extraneous extant policy dealing with the subject matter of excess staff is inconsistent with the way in which the balance of the clause is constructed;
(4)A broader context which is relevant to the construction of cl 6(1)(f) is the provisions of s 146C of the Act. Section 146C(1)(a), is in the following terms:
146C Commission to give effect to certain aspects of government policy on public sector employment
(1) The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees:
(a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and
(b) ...
The phrase "give effect to" was given some judicial consideration by the High Court in Visy Paper Pty Limited and Others v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1 where Kirby J, at (12), described the phrase (which phrase, it can be noted, had been expressly defined under the statute the subject of that case) as being an expression of wide meaning, the use of which required consideration of the various kinds of conduct which it encompassed and included the doing of an act or thing (or, in the case of cl 6(1)(f), refraining from doing an act or thing). That interpretation provides support for the submission of the respondent, in this respect (which we accept), that the term "give effect" in s 146C was broad, recognising the 'substance' within the Commission's award making powers over the 'form' in which such powers might be used. Viewed in this light, when the words of s 146C, in particular the phrase "give effect to", are read in conjunction with the words of cl 6(1)(f), support is provided for the conclusion that cl 6(1)(f) was not intended to be read down as confined to single, particular extant policies on the subject matter of the management of excess public sector employees, but, rather, should be interpreted as having a wider meaning. When read in context, the curtailment on the powers of the Commission by cl 6(1)(f) extends to restraining, where a policy or policies concerning the management of excess staff exists, the inclusion of conditions or matters relating to that subject matter in awards;
(5)It is also necessary to consider the consequences which may flow from accepting the narrow construction of cl 6(1)(f) proposed by the PSA. That construction contained, as already noted, a reference to cl 6(1)(f) inconsistent with the interpretation of the expression 'policy' by French CJ in PSA given that it assigns a meaning to the word 'policies' in cl 6(1)(f) which is, in effect, ambulatory. French CJ went on to note, in explanation, that the word 'policy' in s 146C did "not extend to a policy which requires compliance with future variations of its terms or with future ministerial directions". If the construction proposed by the PSA were accepted, there would be the capacity for policies to be altered, during or after proceedings, permitting the Government to potentially alter or dictate their outcome. If this were the situation, there would exist a real risk that cl 6(1)(f) would be rendered unconstitutional. There is a presumption that Parliament does not intend to pass beyond constitutional bounds: Monis v The Queen [2013] HCA 4; (2013) 87 ALJR 340 at [327] per Crennan, Kiefel and Bell JJ citing Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at (180) per Isaacs J. Where different constructions are available, as may be the case with the particular terms of cl 6(1)(f), the construction which would avoid, rather than lead to, a conclusion of constitutional invalidity is to be selected (Monis at [327] per Crennan, Kiefel and Bell JJ citing New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1 at (161)-(162) per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). With respect to the present matter, a wider interpretation of cl 6(1)(f) as meaning that conditions or matters relating to the management of excess staff should not be included in awards where Government policy (in the broader sense discussed above) on the topic exists (as opposed to meaning that specific policies enunciated by the Government from time to time may not be copied into awards), would avoid a conclusion having the potential to render the provisions of s 146C constitutionally invalid;
(6)Furthermore, if the construction of cl 6(1)(f) proffered by the PSA were accepted, the consequence would be that, while the Commission would be constrained from incorporating a policy dealing with excess staff in its exact terms into an award, it would not be restrained from incorporating the policy in substantially the same terms (or in substantially different terms). Such an outcome would effectively render (at least in practical terms) cl 6(1)(f) nugatory as a means of restricting the incorporation of conditions pertaining to the management of excess staff in awards because it would offer no effective restraint on the award or order making power of the Commission in circumstances where the clear purpose of the sub-clause is to constrain that power. This is because, upon the construction of cl 6(1)(f) proposed by the PSA, the Commission would be permitted to incorporate any policy on the management of excess staff with the only condition being that it was not in exactly the same terms;
(7)Consideration of the purpose of cl 6(1)(f) is the final matter relevant to its construction. In concluding that the legislative purpose of cl 6(1)(f) was "to ensure that the long-established practice of managing excess employees through the medium of Government policy rather than award prescription is maintained", in the first sentence of paragraph [96] of the judgment at first instance, it can be gleaned that Boland J had regard to extrinsic materials, namely, award history and, in particular, the historical absence of any awards or provisions within awards dealing with the subject matter of the management of excess staff in the public sector. The text of a provision of a statute may be considered in the context of legislative history and extrinsic materials (Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ), recourse to which may be permitted for the purpose of identifying the mischief or purpose to which the enactment of a provision was directed: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; (1997) 141 ALR 618; (1997) 71 ALJR 312 per Brennan CJ, Dawson, Toohey and Gummow JJ. In the same way that reference to legislative history is a factor relevant to the consideration of the context of a provision, we consider that it was open to his Honour, in the context of the present matter, to have regard to award history (or, as it were, the absence of award history). The purpose identified by his Honour by reference to the award history is consistent with, and, indeed, reinforces, our earlier conclusion with respect to the ordinary meaning of the words of the sub-clause. We are of the view that, however - given that, in the process of construction, the Court is not to attempt to ascertain what the legislators had in mind when a provision was enacted (Certain Lloyd's Underwriters at [25], [26] and [70]) - his Honour may not have been entitled to go further, as he may have done in the balance of paragraph [96], in particular, in making reference to the "intention" of the Government in enacting cl 6(1)(f) (however, it is unnecessary to rule on that question).
27In the circumstances, we find that Boland J was correct to dismiss the application brought by the PSA and conclude that the Commission was precluded, by cl 6(1)(f), from varying the award in the terms sought by the PSA.