Public Service Association and Professional Officers' Association... [2014] NSWIRComm 32 | Case summary

DECISION 1The Roads and Maritime Services ("the applicant" or "RMS") has made an application pursuant to s 10 of the Industrial Relations Act 1996 (the Act) for a new consolidated award to be known as the Roads and Maritime Services Division of the Government Service of New South Wales (Consolidated Salaried Employees) Award 2014 (the Consolidated Award). The application, which was filed on 24 May 2013, seeks to consolidate the award regulation previously provided by the: (a)Crown Employees (Roads and Maritime Services Division of the Government Service of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2012 (Salaries Award); (b)Crown Employees (Roads and Maritime Services Division of the Government Service of New South Wales - Salaried Staff) Award 2012 (Conditions Award); (c)Professional Engineers (Roads and Maritime Services Division of the Government Service of New South Wales - Salaries) Award 2012 (Professional Engineers Award); (d)Enterprise Agreement 11/5 Maritime Authority of NSW (trading as NSW Maritime) Enterprise Agreement 2010-2013; (e)Maritime Authority of NSW Award 2007; (f)Agreement Number 8411 of 1990 - The Roads and Traffic Authority of New South Wales and the Public Service Association of New South Wales (Inspector - Vehicle Regulation); and (g)Industrial Agreement for Inspectors Vehicle Regulation (contained in Personnel Circular Number 95/5. 2The following industrial unions of employees are parties to the various instruments referred to above:

The Public Service Association and Professional Officers Association Amalgamated Union of NSW;
The Australian Services Union of New South Wales;
The Australian Maritime Officers Union of New South Wales;
The Australian Institute of Marine and Power Engineers New South Wales District;
The Maritime Union of Australia NSW Branch; and
The Association of Professional Engineers, Scientists and Managers Australia (New South Wales Branch) (APESMA). 3The application was opposed by APESMA. However, in Roads and Maritimes Services of the Government Service of New South Wales - Consolidated Salaried Employees Award 2013 [2014] NSWIRComm 19, I determined that the salaries and conditions found in Professional Engineers (Roads and Maritime Services Division of the Government Service of New South Wales - Salaries) Award 2012 should be included in the Consolidated Award. 4After extensive discussions between the parties, which occurred over a period of two years, including assistance provided by the Commission in a number of conciliation conferences, the unions have reached an agreement in respect of all but one clause, that being the insertion of a "No Extra Claims" clause in the Consolidated Award. 5It follows that there are two issues for determination. Firstly, whether the Commission should make the Consolidated Award, and secondly, whether the Consolidated Award should contain a "No Extra Claims" clause.

The Second Issue 12I turn to consider the second issue, that being whether a "No Extra Claims" clause should be included in the award. 13RMS proposes a "No Extra Claims" clause in the following terms: 4.1 During the term of this Award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the Employees covered by the Award by a party to this Award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those Employees will be instituted before the IRC, by a party to this Award. 4.2 The terms of subclause 4.1 do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award provisions. 4.3 Variations made with the agreement of the parties as provided for in clause 6(1)(d) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) are not prohibited by this clause. 14Section 146C(1) of the Act requires the Commission when making or varying any award or order to give effect to any policy on conditions of employment of public sector employees, that is declared by the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (the Regulation) to be an aspect of government policy that is required to be given effect to it by the Commission. 15Clause 4 of the Regulation provides that the government policies declared by the Regulation are those that are to be given effect to by the Commission pursuant to s 146C of the Act. 16Clause 6 of the Regulation declares government policy for the purposes of s 146C of the Act. Clause 6(1)(d) provides: (d) Awards and orders are to resolve all issues the subject of the proceedings (and not reserve leave for a matter to be dealt with at a later or allow extra claims to be made during the term of the award or order). However, this does not prevent variations being made with the agreement of the relevant parties. 17The High Court of Australia in The Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment (2012) 293 ALR 450 at [43], [44], [58] and [70], determined that the policies referred to in the Regulation have the effect of constraining, limiting or qualifying the exercise of the power conferred upon the Commission under the Act. 18In Public Service Association and Professional Officers Association Amalgamated Union NSW v The State of New South Wales [2014] NSWCA 116, Bathurst CJ, in dealing with the construction of cl 6(1)(f) stated at [44]-[50] as follows: [44] The principles governing the construction of delegated legislation, such as the regulation in the present case, are those applicable to Acts of Parliament generally: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398; King Gee Clothing Company Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 195. [45] The relevant principles have been stated on a number of recent occasions by the High Court. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, the plurality emphasised (at [47]) that construction must begin with a consideration of the text itself and while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy: See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at [41]; Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) [2012] HCA 55; (2012) 87 ALJR 98 at [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]. [46] Determination of the purpose of the statute or a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate by reference to extrinsic material. However, the process does not involve a search for what those who presented and passed the legislation had in mind: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Certain Lloyd's Underwriters v Cross supra at [23]-[26]. [47] Extrinsic material cannot be used to construe a legislative provision unless a construction of the provision suggested by the material is reasonably open: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 113. In particular it is not for a court to construct its own idea of a desirable policy, impute it to the legislature and then characterise it as a statutory purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [28]. [48] There is one other matter which should be noted. It is well established that where a regulation is open to two constructions, one within the power conferred by the enabling Act and the other outside of such power, the former construction should be adopted: ut res magis valeat quam pereat: Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 at 983; Birch v Australian Mutual Provident Society [1906] HCA 51; (1906) 4 CLR 324 at 343; Airservices Australia v Canadian Airlines International Limited [1999] HCA 62; (2000) 202 CLR 133 at [229]-[230] and [408]. This principle finds statutory embodiment in s 32 of the Interpretation Act 1987 (NSW). However, that section is subject to any contrary intention appearing in the legislation (Interpretation Act, s 5). [49] In considering the context in which the regulation falls to be considered, it is necessary to have regard to the opening words of s 146C(1), and s 146C(1)(a) of the Act. The opening words of s 146C(1) require the Commission when making or varying an award or order to give effect to any policy on conditions of employment of public sector employees. The extent of that requirement is limited by s 146C(1)(a) to any such policy 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 that applies to the matter to which the award or order relates (per s 146C(1)(b)). The matters in regs 5 and 6 of the Regulations are matters which are said to be aspects of government policy. So much is made clear by reg 4. The purpose of the legislation can thus be seen to require the Commission to comply with certain aspects of government policy concerning public sector employees in setting awards or resolving industrial disputes. [50] Each of the sub-regulations 6(1)(a)-(e) of the Regulations impose particular constraints on the award or order the Commission can make in exercising its powers under ss 10 or 21 of the Act (or its equivalent jurisdiction in making an order). Each of the matters referred to in those sub-regulations reasonably can be seen as an aspect of government policy. By contrast reg 6(1)(f) of the Regulations does not on its face identify any particular aspect of government policy but refers generally to "Policies" regarding the management of excess public sector employees. I propose to apply these principles to the construction of cl 6(1)(d). 19More recently, the Supreme Court of NSW Court of Appeal in Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW [2014] NSWCA 138 at [34] confirmed that s 146C and the Regulation have the effect of constraining the Commission's power. 20The Public Service Association and Professional Officers Association Amalgamated Union of NSW (the 'PSA'), who was supported by Unions NSW and the unions listed in paragraph 2 of this judgment, opposed the inclusion of a "No Extra Claims" clause in the Consolidated Award. 21Mr N Keats, solicitor, who appeared for the PSA, submitted that the words of the Regulation did not in any way suggest or require an extra claims commitment. It was a negative stipulation rather than one imposing some positive requirement that a provision of a particular nature be placed in an award. So much, Mr Keats submitted, was conceded by RMS. 22It was further submitted that the phrase "allow extra claims to be made during the term of the Award" only means that no provision of the award can have the effect of permitting that such a claim can be made. 23Mr Keats contended that the making of the award entirely deals with the subject matter of the proceedings. The application does not reserve leave for a matter to be dealt with later. There was, for example, no leave reserved clause in the award and the award did not otherwise create a right for extra claims to be made during the term of the award. 24In my view, cl 6(1)(d) imposes a requirement or a qualification on the exercise of the Commission's power when making an award. True it is that cl 6(1)(d) does not require a particular set of words for a no extra claims clause. In other words, it does not dictate the form of the no extra claims clause to be inserted in an award. 25However, what it does require is for the Commission, when making an award, to give effect to the policy set out in cl 6(1)(d) which is to ensure that the award itself does not allow the making of any extra claims during the nominal term of the award. 26Its purpose is to ensure the award is not silent in respect of "No Extra Claims". The question of "No Extra Claims" must be addressed and in my view, an award cannot be made without some form of "No Extra Claims" clause being included. 27On one view, cl 6(1)(d) does no more than confirm what has historically been the practice in this Commission when parties reach an agreement. If a "No Extra Claims" clause is not included in the Consolidated Award, both the union parties and RMS would be able, subject to the requirements of the Act, to bring claims at any time during the nominal term of the Consolidated Award. Such an outcome would, in my view, be contrary to cl 6(1)(d). 28The effect of cl 6(1)(d) is to ensure that an award must be expressed to resolve all issues between the parties and not permit extra claims during the nominal term of the award. 29It does not, however, preclude variations to the award being made during the nominal term. If it was to have that operation itself, by qualifying the Commission's jurisdiction in terms of making orders, it would potentially commence to directly regulate the relationship between employees and employers and remove the Commission's power to regulate. This was the vice which led the Court of Appeal to declare cl 6(1)(f) invalid: Public Service Association and Professional Officers Association Amalgamated Union NSW v State of New South Wales at [65]-[67], [113] and [131]. 30I do not agree with Mr Keats' submission that the insertion of a "No Extra Claims" clause would prevent parties exercising their statutory rights under the Act, particularly those found in s 17(3) of the Act which provides: 17 Variation or rescission of award (3) An award may be varied or rescinded in any of the following circumstances only: (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. 31Clause 5 of the Regulation declares two policies to be paramount: (a)[That] Public sector employees are entitled to the guaranteed minimum conditions of employment (being the conditions set out in clause 7). (b)[That] Equal remuneration for men and women doing work of equal or comparable value. 32Nothing in cl 5 requires any claim or application to be made to the Commission. Clause 5 makes clear that two policies are paramount in respect of the NSW Public Sector Wages Policy 2011 (the Wages Policy). 33The monitoring of cl 5 does not require the making of a claim by any party. It is, in my view, ultimately a matter for the Commission and, as s 17 of the Act makes clear, it is entirely a matter for the Commission to monitor awards and to determine whether or not, at any period of time, there has been a reduction in minimum conditions of employment over the course of the Award below what is guaranteed in cl 7, or that there is an absence of equal remuneration for men and women undertaking work of equal or comparable value. 34The Commission has the power to review awards and the Commission may, pursuant to s 17(1)(c) of the Act, if it considers it is not contrary to the public interest, and there is a substantial reason to do so, vary or rescind an award. The exercise of the Commission's jurisdiction in these circumstances is not precluded by the "No Extra Claims" clause. 35In addition, Mr Keats submitted that there was no discretionary basis upon which the "No Extra Claims" clause should be included in the Consolidated Award. It was contended that the Commission had no power under the Act to impose a term in an award preventing a party from making a claim. Mr Keats referred to the Full Bench decision in Re: Crown Employees (Public Sector - Salaries 2011) Award No 3 [2011] NSWIRComm 104 at [38], where the Full Bench observed: [38] We do not know how the Commission may make an order precluding claims being made before a Tribunal other than itself. Moreover, in the absence of legislative backing, the power of the Commission to order a party not to make claims it is entitled to make under the statute must be in doubt. We also note that the proposed no extra claims provision, on their face, would preclude claims otherwise permitted under the regulation (for example, claims relating to equal remuneration). 36The clause that is now sought does not seek to preclude claims being made before a Tribunal other than this Commission. 37In my view, the "No Extra Claims" clause is consistent with s 17(3) of the Act, in that it creates a limited set of circumstances in which an award may be varied or rescinded during its nominal term. 38Furthermore the Wages Policy requires the inclusion of a no extra claims clause in all awards and agreements. RMS is bound by the Wages Policy which applies to all public sector agencies other than State Owned Corporations, including public service departments, other divisions of the Government Service and independent statutory bodies. Clause 6.1.6 of the Wages Policy prescribes the no extra claims clause that must be contained in all awards and agreements. The clause proposed by RMS is in similar terms to that found in cl 6.1.6 of the Wages Policy. 39The Commission has long recognised the benefit of no extra claims clauses for both employees and employers to the extent that such clauses provide finality and certainty to the parties and give effect to a negotiated instrument: Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209. The Full Bench stated at [16]: [16] The purpose of no further claims commitments is to ensure certainty during the life of the relevant industrial instrument. That is to say, all matters agreed or arbitrated upon represented a settled arrangement for the term of the award or agreement. Depending on the terms of the commitment, employers could plan and act on the basis that during the life of the award or agreement, they would not incur any additional labour costs or industrial action in support of extra claims, nor would they be required to divert resources to dealing with such claims. Employees and their unions would not face claims to cut wages or alter to their detriment employment conditions prescribed by the award or agreement [...]. 40As a matter of discretion, I would also include a no extra claims provision. 41Mr Prince acknowledged that in respect of the ongoing litigation regarding whether the Wages Policy allows for an increase of 2.27% (the obligation to make superannuation contributions under the provisions of the Superannuation Guarantee (Administration) Act 1992 (Cth which increased from 9% to 9.25% from 30 June 2013), RMS would abide by the outcome of this litigation. If for example, employees were entitled to 2.5% increase in salaries, RMS would consent to a variation of the Consolidated Award. 42The Consolidated Award has been the subject of consultation and negotiation for approximately two years. RMS submitted that, in the circumstances, it would not be in the interests of either RMS or the unions to have an award made which allowed for negotiations to continue. I agree with this submission and find that the "No Extra Claims" clause is necessary to give finality to the parties. As the Full Bench observed in the TAFE case, such a clause is reasonable. For these reasons, the Consolidated Award should include the "No Extra Claims" clause as found at cl 4 of the Consolidated Award. 43I consider that the proposed award meets all the statutory requirements for the making of awards and is consistent with the Wages Policy. The award satisfies the requirements of s 10 of the Industrial Relations Act 1996 and is an award of abundant industrial merit. 44I make the Roads and Maritime Services Consolidated Salaried Award 2014 in the terms set out in Exhibit 1 in the proceedings. The award is to operate on and from 1 July 2014 and remain in force until 30 June 2016. This award rescinds and replaces the awards and instruments set out in paragraph 1 of this decision.

Public Service Association and Professional Officers' Association Amalgamated Union of NSW v State of New South Wales

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