Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Education and Communities

Construction of the Regulation

1. We see no reason to depart from or modify the relevant principles of statutory interpretation as the Commission expressed them in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Education and Communities [2013] NSWIRComm 32; (2013) 233 IR 345 at [24]. Without setting those paragraphs out again here, the critical proposition is this: the fundamental object of statutory construction is to ascertain legislative intention. This must be understood as the intention that the courts - and here the Commission - will impute to the legislature by a process of construction which focusses primarily upon the text of a provision.
2. With these principles in mind we turn to the construction of the Regulation.
3. It is immediately apparent that the Regulation, and in particular cl 6(1)(d), does not, in terms, impose a positive requirement on the Commission to insert a no extra claims clause. Such a requirement could, of course, have been provided by the draughtsman, but was not.
4. The words of the first sentence of cl 6(1)(d) bear repeating: "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 time or allow extra claims to be made during the term of the award or order)."
5. A validly made award or order of the Commission will necessarily, of itself, resolve all issues the subject of the proceedings because an award or order can only validly be made if it does precisely that. There can be, as counsel for the majority of the respondent unions conceded, no 'residual' matters remaining in relation to any proceedings once a valid award is made in the proceedings. That is the clear effect of the Regulation.
6. The words in parentheses appearing in cl 6(1)(d) of the Regulation are explanatory of that first fundamental proposition, and are subordinate to it.
7. Even without the words in parentheses in the first sentence of cl 6(1)(d), a validly made award or order, just as it necessarily extinguishes any residual matters, also precludes the insertion of any leave reserved clause or the Commission entertaining any suggestion that matters were reserved for the term of the award. A validly made award precludes any application in the nature of an extra claim for the term of the award because a validly made award necessarily, by its making, does not allow the making of any extra claims during its term. That is the effect of the Regulation.
8. The 'valid' making of an award is here to be understood not merely in its general sense of an award lawfully made pursuant to the Commission's powers under s 10 of the Act, but further in the specific context of s 146C, and in particular s 146C(3), which provides that an award or order does not have effect to the extent that it is inconsistent with the obligation placed on the Commission by s 146C, and, necessarily, by the regulations made pursuant to that section. It is, on the face of the Act, not possible to validly make an award that allows an 'extra claim'.
9. Mr Britt's submission that cl 6(1)(d) of the Regulation contained a government policy to which the Commission must give effect is correct.
10. However, the proposition that, in order to give effect to that policy, the creation and insertion in each award of a 'no extra claims' provision was required is not correct. First, it is not justified by the terms of the Regulation itself as a matter of construction. Secondly, and fundamentally, the requirement to give effect to the policy expressed in the Regulation - and specifically, that an award allow no extra claims during its term - is already satisfied by the making of a valid award, without need for more.
11. That is, cl 6(1)(d) of the Regulation, properly read, achieves its evident legislative intention without the insertion of any 'no extra claims' clause.
12. It follows that what was characterised by Mr Britt as "silence" on the part of the Commission, that is, the absence of a 'no extra claims' provision in a given award, by no means permits extra claims to be made. 'Extra claims' are already precluded by the valid making of the Award. A provision such as that sought in these applications would, in fact, be wholly superfluous.
13. Should an application be made during the term of an award which either proceeded on the basis that a matter had been reserved or made a claim which was in the nature of an 'extra claim', the Commission would simply deal with such an application according to law, that is, by rejecting it.
14. It follows from what we have found above that, in the absence of any submission by the applicants based upon discretionary grounds, the applications advanced as to the no extra claims clause should be refused and we so order.
15. As foreshadowed in [2] above we will make provision in the orders below to deal with any issue arising as to the proper title of the applicant in matter numbers IRC 466, 467 and 473 to 485 of 2014. In the event that any submission filed indicates the need to adjust the name of the applicant in those matters, the Commission will make any necessary adjustments administratively in Chambers with a resultant variation to the published version of this decision.

Orders and Directions

1. The Full Bench makes the following orders and directions: 1. The applications in matter numbers IRC 466, 467, 469 to 471, 473 to 487 and 489 to 513 of 2014 are refused. 2. The parties may file any submission, in writing, as to the proper title of the applicant in matter numbers IRC 466, 467 and 473 to 485 of 2014 within seven days of this decision. POSTCRIPT: After receipt of a submission on 24 March 2015 in accordance with order (2) above, the Full Bench ordered that the published decision in Crown Employees Wages Staff (Rates of Pay) Award 2011 and others [2015] NSWIRComm 7 be amended to incorporate this postcript to record that the proper title of the Secretary of the Treasury is the Industrial Relations Secretary.

Amendments 31 March 2015 - This decision was amended on 31 March 2015 to incorporate a postcript appearing after [31] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2015