Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary

Mainteck Services Pty Ltd v Stein Heurtey SA (2015) 87 NSWLR 633; [2014] NSWCA 184 Meehan v Jones (1982) 149 CLR 572; [1982] HCA 52 Mills v Meeking (1990) 169 CLR 214 at 235 Moran Health Care Services v Woods (1997) NSWCCR 449; [1997] NSWSC 147 Newcastle City Council v GIO General Ltd (1987) 191 CLR 85 Notification under section 130 by the New South Wales Teachers Federation of a dispute with Department of Education and Training re changes to TAFE teacher education programs [2008] NSWIRComm 117 Pan Foods Company Importers & Distributers Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 170 ALR 579 Pan Foods Company Importers & Distributers Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 170 ALR 579 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282 R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 Rail Corp (NSW) v Brown (2012) 82 NSWLR 318; (2012) 219 IR 67 Re Operational Ambulance Officers (State) Award (2011) 207 IR 272; [2011] NSWIRComm 61 Repatriation Commission v Donovan (1985) 8 FCR 252 Roads and Maritime Services v Australian Workers' Union, New South Wales [2013] NSWIRComm 105 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Sin Poh Amalgamated (HK) Ltd v Attorney General of Hong Kong [1965] 1 WLR 62 State of New South Wales v Stockwell [2017] NSWCA 30 State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division (2014) 247 IR 129; [2014] NSWIRComm 41 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Wentworth Securities Ltd v Jones [1980] AC 74 Winter v Ministry of Transport [1972] NZLR 539 Woolworths Ltd v Lister [2004] NSWCA 292 Texts Cited: Macquarie Dictionary, (7th ed, 2017, Pan Macmillan) Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Industrial Relations Secretary (First Respondent) Commissioner of Police (Second Respondent) Landcom (Third Respondent) Representation: Counsel: M Gibian (Applicant) I Taylor SC with A Britt (First & Second Respondents)

Solicitors: Maurice Blackburn (Applicant) Crown Solicitor's Office (First & Second Respondents) Ashurst (Third Respondent) File Number(s): 2016/333716

Judgment

1. HIS HONOUR: By further amended applications for declaration under s 154 of the Industrial Relations Act 1996 (NSW) ("the IR Act") filed 16 May 2017 ("the applications"), the Public Service Association and Professional Officers' Association Amalgamated Union of NSW ("the applicant") sought declarations with respect to clauses of five public sector awards made pursuant to s 10 of the IR Act ("the subject awards") which, in industrial parlance, were known as "top up provisions" or "top up clauses".
2. Broadly speaking, a top up provision is one which permitted employees whose employment was regulated by the subject awards to use any accrued and untaken sick leave entitlement to make up the difference between an amount of workers compensation payable to the employee under the Workers Compensation Act 1987 (NSW) ("the WC Act") and the employee's ordinary rate of pay under the subject awards. The sick leave utilised in this way would be debited against the employee's sick leave accounts (when used collectively the "top up provisions").
3. The top up provisions reflect long-standing arrangements with respect to the employment of public servants in New South Wales. The Public Service (General) Regulation 1984 (NSW) ("the 1984 Regulation") made provision, in cl 74(3), for a public servant to be paid the difference between the compensation payable under the WC Act and the ordinary rate of pay of the public servant after a period of 26 weeks with the amount paid to be debited against the employee's accrued sick leave.
4. Equivalent provisions was subsequently made in cl 64(3) of the Public Service (General) Regulation 1988 (NSW) and cl 91(3) of the Public Sector Employment and Management (General) Regulation 1996 (NSW) ("the 1996 Regulation"), until its repeal in 2009. No such provision was incorporated in the Public Sector Employment and Management Regulation 2009 (NSW) or the Government Sector Employment Regulation 2014 (NSW). On the history of the subject awards provided by the parties, the top up provisions have existed in two such awards since 1997.
5. Each top up provision contains similar qualifying words, namely, that the provision will only apply to "an employee who continues to receive compensation after the completion of the period of 26 weeks referred to in section 36 of [the WC Act]" (this qualification shall hereinafter be referred to as "the condition").

THE SUBJECT AWARDS AND CONSOLIDATION

1. The applicant made five applications electing to group together in one application some of the subject awards where dealing with the same employment area. Those awards and their respective groupings are as follows: 1. Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (reviewed award published 7 December 2012 and 21 October 2016) ("the Conditions Award"); 2. Crown Employees (School Administrative and Support Staff) Award (reviewed award published 29 June 2012 and 15 January 2016) ("the Schools Award"); 3. Crown Employees (SAS Trustee Corporation) Award 2016, including the following versions: Crown Employees (SAS Trustee Corporation) Award 2015 and Crown Employees (SAS Trustee Corporation) Award 2012 (reviewed award published 3 August 2012 and 15 January 2016) (collectively referred to hereinafter as "the SAS Trustee Award"); 4. Landcom Award 2016, including the following versions: Landcom Award 2015 and Landcom Award 2010 (collectively referred to hereinafter as "the Landcom Award"); and 5. Crown Employees (NSW Police Force Administrative Officers and Temporary Employees Award 2009 (reviewed award published 10 August 2012 and 21 October 2016) ("the Police Award").
2. After the hearing of this matter an order was made, by consent, consolidating the respective proceedings pursuant to r 28.5 of the Uniform Civil Procedure Act 2005 (NSW). That order was made because the declarations sought sprung from essentially the same question or issue and the submissions made by the parties were common for the respective applications. The one area of distinction was that the applicant placed reliance upon some of the top up provisions in the subject awards having been made after the commencement of the Amendment Act. However, that distinguishing feature was effectively neutralised, for the purposes of consolidation, as a result of the further contention by the applicant that the remainder of the awards (made before the Amendment Act) were in a similar position because they were reviewed, with the top up provisions intact, after the passing of the Amendment Act.
3. The respondents in the consolidated proceedings are as follows: 1. The Industrial Relations Secretary is the first respondent, being the deemed employer of public sector employees pursuant to s 50 of the Government Sector Employment Act 2013 (NSW), covered by the Conditions Award, the Schools Award and the SAS Trustee Award, and a party to the Conditions Award and SAS Trustee Award; 2. The Commissioner of the Police is the second respondent, being the deemed employer of the non-executive officers pursuant to ss 50, 82, 82A and 90 of the Police Act 1990 (NSW) covered by the Police Award and a party to the Police Award. 3. Landcom, the third respondent, is a corporation constituted by the Landcom Corporation Act 2001 (NSW), a statutory State owned corporation under the State Owned Corporations Act 1989 (NSW) and, as an employer, is regulated by the IR Act.

THE DECLARATION

1. The applicant is an industrial organisation registered under the IR Act which has members employed pursuant to and is a party to the Conditions Award.
2. The applicant sought the following declaration with respect to the Conditions Award: 1. That cl 82.7 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 permits, and at all times since 1 October 2012 has continued to permit, employees covered by that Award who continue to receive compensation under the Workers Compensation Act 1987 by reason of having no current work capacity after the completion of a period of 26 weeks to use any accrued but untaken sick leave to make up the difference between the amount of compensation payable under that Act and the employee's ordinary rate of pay. Sick leave utilised in this way shall be debited against the staff member. 2. For the purposes of order 1, the period of 26 weeks referred to in the order included the aggregate period (whether or no consecutive) in respect of which a weekly payment has been paid or is payable to the employee under the Workers Compensation Act 1987. 3. That order 1 is subject to other limitations to the capacity to use sick leave to top up workers compensation imposed in the Award. 4. Such further and other orders as this Honourable Court deems appropriate.

Pre-Amendment WC Act

1. Part 2 of the Pre-Amendment WC Act prescribed the liability of employers to pay compensation to workers who received injuries. By s 9, that liability was specified, in general terms, as follows: 9 Liability of employers for injuries received by workers - general (cf former s 7(1)(a)) (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment.
2. Part 3 of the WC Act specified compensation benefits payable when a liability to pay compensation arose. The heading to Div 2 of that Part delineated the subject matter of the Division as the provision of weekly compensation by income support. Section 33 provided: 33 Weekly compensation during total or partial incapacity for work (cf former s 9 (1)) If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity. Note. Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.
3. The terms of s 36 of the WC Act immediately before the Amendment Act were as follows: 36 Weekly payment during total incapacity - first 26 weeks (1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker's current weekly wage rate. (2) In this section: current weekly wage rate, in relation to a worker, means the worker's current weekly wage rate determined from time to time in accordance with section 42.
4. The first period of 26 weeks was defined in s 34 as follows: 34 Definition of first 26 weeks of incapacity (1) For the purposes of this Division, the first 26 weeks of incapacity, in relation to a worker, is the period of incapacity for work (whether total or partial, or both) not exceeding 26 weeks after the worker becomes entitled to weekly payments of compensation in respect of the incapacity. (2) A reference in subsection (1) to a period of incapacity for work includes, in the case of separate periods of incapacity resulting from the same injury, a reference to the aggregate of those periods. (3) For the avoidance of doubt, the first 26 weeks of incapacity does not include any period during which there is no weekly compensation payable in accordance with this Division, whether because of the operation of section 40 or otherwise.

Post-Amendment WC Act

1. The broad structure of the WC Act remained after the passing of the Amendment Act. Parts 2 and 3 continued to deal, respectively, with the liability and compensation befits payable.
2. The Amendment Act repealed ss 36 and 37 of the Pre-Amendment WC Act, with effect from 1 October 2012, and inserted in their place the following: 36 Weekly payments in first entitlement period (first 13 weeks) (1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of: (a) (AWE × 95%) − D, or (b) MAX − D, whichever is the lesser. (2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the rate of: (a) (AWE × 95%) − (E + D), or (b) MAX − (E + D), whichever is the lesser. 37 Weekly payments in second entitlement period (weeks 14-130) (1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of: (a) (AWE × 80%) − D, or (b) MAX − D, whichever is the lesser. (2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of: (a) (AWE × 95%) − (E + D), or (b) MAX − (E + D), whichever is the lesser. (3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of: (a) (AWE × 80%) − (E + D), or (b) MAX − (E + D), whichever is the lesser.
3. Section 35 provides the formula necessary to apply ss 36 and 37. That provision is in the following terms: 35 Factors to determine rate of weekly payments (1) For the purposes of the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week: AWE means the worker's pre-injury average weekly earnings. D (or a deductible amount) means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker. E means the amount to be taken into account as the worker's earnings after the injury, calculated as whichever of the following is the greater amount: (a) the amount the worker is able to earn in suitable employment, (b) the workers current weekly earnings. MAX means the maximum weekly compensation amount. (2) If the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount is to be treated as zero.

Nature of the Changes Brought About by the Amendment Act

1. It is common ground that, in broad terms, the effect of the aforementioned Amendment Act was that, on and from 1 October 2012, an injured worker with no current work capacity received 95% of his or her average weekly earnings or prescribed maximum rate (whichever is the lesser) for the first 13 weeks of incapacity and 80% of his or her average weekly earnings or a prescribed maximum rate (whichever is the lesser) for weeks 14 to 130 of incapacity. Entitlements to weekly compensation after week 130 ceased, subject to certain exceptions.
2. The parties put further submissions delineating the effect of the statutory change. Bearing in mind those submissions, I consider the following represents a relevant summary of the amendments introduced to the WC Act in 2012: 1. An employee at no stage received 100% of their pre-injury average weekly earnings. It was submitted by the respondents that this was consistent with a new legislative policy to encourage workers back to work as early as possibly by giving them a financial incentive to return to work. The applicant did not dispute the effect of the change, in that respect, but submitted that the respondents had overstated the significance of the change. The applicant submitted that, whilst the Amendment Act altered the timing of adjustments to weekly compensation payments, the provisions under the Pre-Amendment WC Act ultimately provided for weekly compensation payments less than the ordinary earnings of an employee after 26 weeks of incapacity and that the awards nonetheless incorporated workers compensation top up provisions specifically to allow employees to use accrued sick leave to top up weekly compensation payments. That much may be accepted but it does not alter the correctness of the respondents' submission as to the effect of the change to the WC Act. 2. There is no period of 26 weeks referred to in the Post-Amendment WC Act. The reference in s 36 to the "first entitlement period" is a reference to the first 13 weeks. The reference in s 37 to the "second entitlement period" is a reference to a period of 116 weeks (being weeks 14 to 130 inclusive). 3. For the first 13 weeks of incapacity (whether a worker was totally or partially incapacitated) the worker received 95% of the worker's pre-injury weekly earnings (which included overtime and shift work payments). The weekly payments in the second entitlement period varied and may include a payment of 80% or 95% of the worker's pre-injury average weekly earnings. The quantum of compensation under the Pre-Amendment WC Act paid from 26 weeks, thereafter, was different to the amount paid for the same period under the Post-Amendment WC Act so the amount of sick leave that would be applied to top up would be different. The respondents submitted, without demur from the applicant, that from week 27 onwards the amount of top up payment was less but the period it applies was, therefore, longer. 4. The entitlement to workers compensation after 130 weeks ceased, save for the special circumstances provisions under s 38. One such circumstance occurred if a worker was assessed "as having no current work capacity and likely to continue indefinitely to have no current work capacity": s 38(2). In that case, the worker was entitled to weekly compensation and, accordingly, paid 80% of the worker's pre-injury average weekly earnings or the maximum statutory rate (whichever is the lesser): s 38(6). Further, pursuant to s 38(3), a worker continues to receive compensation after 130 weeks upon the worker being assessed as having "current work capacity" if three conditions are met one of which is that the worker has returned to work for at least 15 hours per week and was in receipt of current weekly earning of a certain amount per week. In that case compensation was assessed under s 38(7). 5. In any event, weekly compensation will not be payable to a worker after 5 years of weekly payments (with an exception of injured workers with more than 20% whole person impairment): s 39. 6. Those workers who are partially incapacitated are now addressed in s 36 and are not treated differently to totally incapacitated workers for the first 13 weeks. There is a higher rate of compensation thereafter for those that work a minimum 15 hours per week: s 37(2). 7. Calculation of compensation is based on a worker's "pre-injury average weekly earnings" which is not calculated in the same way as the "current weekly wage rate" under the Pre-Amendment WC Act. The calculation differs depending on the period of time from the date of injury and the employment of the worker: see s 44C of the Post-Amendment WC Act and s 42 of the Pre-Amendment WC Act. 8. The applicant also submitted, correctly in my view, that: 1. The WC Act continued after the Amendment Act to provide an entitlement to the payment of weekly compensation in circumstances of an employee who is totally incapacitated; 2. The amount of weekly compensation payments continued to be determined by reference to the period of incapacity being the aggregate period the worker had been entitled to weekly payments in respect of incapacity.

Transitional Arrangements

1. I return to the question as to whether the top up provisions have any operation after 1 October 2012.
2. Both parties accepted that, for a particular class of employees under Pt 3 Div 2 of the WC Act, the Pre-Amendment WC Act top up payments would continue pursuant to Sch 6 Pt 19H Div 2 cl 6 of the WC Act.
3. It is appropriate, in this respect, to refer to Div 1 cl 3 and Div 2 cl 6 which are in the following terms: 3 Application of amendments generally (1) Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to: (a) an injury received before the commencement of the amendment, and (b) a claim for compensation made before the commencement of the amendment, and (c) proceedings pending in the Commission or a court immediately before the commencement of the amendment. (2) An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part. … 6 Application of weekly payments amendments to existing claimants An existing recipient of weekly payments remains entitled to compensation under Division 2 of Part 3 of the 1987 Act as if the weekly payments amendments had not been made, but only until the weekly payments amendments apply to the compensation payable to the person as provided by this Division.
4. The respondents made the following submission, in respect of this class of employees, as follows: [11] It is not in dispute that employees who met the qualifying requirement under s 36 of the WC Act as it was before the October 2012 amendments were entitled to obtain the benefit of the relevant Award top up provisions before that date and continued to be able to obtain the benefit of the provisions after the October 2012 amendments. In other words, it is not in dispute that clause 82.7 of the Conditions Award (and the same clauses in the other Awards) had the effect asserted by the proposed declaration in respect of employees who had, prior to 1 October 2012, completed the period of 26 weeks referred to in s 36 of the WC Act or who had commenced the period referred to in s 36 before 1 October 2012 and who, as a consequence of transitional provisions, continued to obtain compensation after that date pursuant to s 36 as it was prior to the amendments and who then subsequently completed the 26 week period referred to in that section.

PRINCIPLES OF AWARD INTERPRETATION

1. The principles applicable to the interpretation of industrial awards were recently discussed by McColl JA (with whom Leeming and Simpson JJA agreed) in State of New South Wales v Stockwell [2017] NSWCA 30 ("Stockwell"). Her Honour stated (at [68]): [68] When construing an industrial agreement such as the 2006 Award, in particular the primary requirement and the proviso, the Court must have regard to the language of the particular agreement, understood in the light of its industrial context and purpose and its operation as a whole as well as the legislative background against which it was made and in which it was to operate.
2. In this matter the respondents placed reliance upon the distillation of principles by the Industrial Court in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 ("Secretary of the Treasury") (at [115]) (see also State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division (2014) 247 IR 129; [2014] NSWIRComm 41 at [26]-[31]). No demur to those principles was expressed by the applicant; although emphasis was placed on authorities to the effect that award should receive a generous construction and authorities concerning the interpretation of commercial contracts. I have, in that event, applied the principles of award construction, as distilled in Secretary of the Treasury, in this matter.
3. However, it will be useful to return to some earlier passages from the Secretary of the Treasury which underpinned the formulation of aforementioned distilled principles. Those passages are found at [102]-[108] of that judgment and are extracted below: [102] In George A. Bond & Co Ltd (in liq) v McKenzie at 503-504, Street J, then a judge of the Industrial Commission of New South Wales, succinctly stated the principles applicable to the interpretation of awards which have been long applied in the industrial jurisprudence of this State as follows: Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. (See also Perisher Blue Pty Ltd v Australian Workers' Union (1999) 91 IR 274 at 283; Transport Workers' Union (NSW Branch) v Walker Civil Engineering (1999) 91 IR 153 at 166; Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT [2002] NSWIRComm 32; (2002) 122 IR 178 at [61]; Health and Research Employees Association of New South Wales, Re Dispute with Northern Rivers Health Service re Payment to Part-time Employees [2004] NSWIRComm 10; (2004) 135 IR 132 at [9]; Kingmill at [67]; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union (2008) 180 IR 170; [2008] NSWIRComm 158 at [38], [39] and [59] ('NSW Fire Brigades') and Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123 at 125.) [103] The expression 'interpreted as any other enactment' in this passage is plainly a reference to statutory interpretation and has consistently been approached in that fashion: see NSW Fire Brigade at [38] and [39], such that Street J considered the principles of statutory interpretation should be applied to the interpretation of industrial instruments with specific refinements. (These principles have been applied in other jurisdictions, see, for example, City of Wanneroo at [107] with respect to the interpretation of awards and Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd [2007] FCAFC 201; (2007) 164 FCR 420; (2007) 244 ALR 658; (2007) 170 IR 403 at 21 in the context of construing industrial agreements. Ultimately, the principles have been adopted by the High Court of Australia, albeit in the context of industrial agreements: see, for example, Amcor at [66].) [104] These principles were given effect in the following two passages from the judgment of French J (as he then was) in City of Wanneroo at [53] and [57], as follows: [53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part or to other documents with which there is an association". It may also include "... ideas that gave rise to an expression in a document from which it has been taken" - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J);Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J). ... [57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. [105] The principles stated in City of Wanneroo stemmed from a consideration that an award made under the Workplace Relations Act 1996 (Cth) had the force of law of the Commonwealth (see at [51]) and attracted the operation of that Act for the purposes of interpretation by virtue of s 46 of the Acts Interpretation Act 1901 (Cth). French J thereby proceeded to give effect to the provisions of ss 15AA and 15AB of the Acts Interpretation Act. [106] In NSW Fire Brigades, the Full Bench stated that the Interpretation Act 1987 (NSW), by virtue of s 3(1) of that Act, applied to the interpretation of awards and thereby "entrenched" the long held principles stated in George A Bond & Co (see at [38]). Subject, to one reservation, I agree, with respect, with that conclusion. [107] Section 5 of the Interpretation Act provides, inter alia, that that Act applies to 'instruments'. That word is defined in s 3(1) to mean "an instrument (including a statutory rule or an environmental planning instrument) made under an Act...". There would seem to be little doubt that an award is an instrument (see City of Wanneroo at [53]). Further, I consider that an award is an instrument made under an Act. Section 10 of the Act provides that the Commission "may make an award in accordance with this Act". Section 11 makes the award binding on all parties and an award, when made, is given the force of law by being made enforceable under the Act (see s 357): see Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; (2003) 201 ALR 271 at [61] and footnote (27). [108] There may be some doubt, however, as to whether s 33 of the Interpretation Act, has application with respect to the interpretation of awards.

Submissions for the Applicant

1. The applicant made submissions predicated upon the contentions identified by it for the proceedings (see [17] above). Those contentions were expanded to specifically meet the defence offered by the respondents, namely, that there was a contrary intention in the top up provisions which excluded the operation of the Interpretation Act.
2. What appears below is a summary of the applicant's submissions corresponding to the earlier mentioned short form titles or headings reflecting the joinder of issues in the proceedings. There is some overlapping of the contentions under the respective headings. The construction issue shall be addressed first in order for the reasons outlined in [119] below.

The Construction Issue

1. The applicant contended that the construction proposed by the respondents was too narrow. It was submitted that, although s 36 of the WC Act no longer referred to a period of 26 weeks, employees continued to be entitled to compensation payments less than their ordinary earnings if incapacity persists for more than 26 weeks. If a narrow and pedantic approach is avoided, the clauses can readily be interpreted as permitting top up of compensation payments after 26 weeks.
2. The reference to s 36 of the WC Act in the top up provision identified "the source of the entitlement to compensation, namely, weekly compensation for incapacity". The applicant contended that, if interpreted consistently with their purpose, the award provisions are to be read as referring to the WC Act provisions as the source of the entitlement to weekly compensation payments which are able to be topped up by use of sick leave. The Award provisions are required to be read as extending to the amended or re-enacted provisions of the WC Act as the source of compensation payments and continue to enable an employee, after the passage of 26 weeks, to use sick leave to top up compensation payments to their ordinary rate of pay.
3. The main purpose of the award provisions is that, after 26 weeks, an employee who was incapacitated as a result of work injury or illness is able to use accrued but untaken sick leave to make up the difference between his ordinary and compensation payments received. There is no reason to conclude that the awards intended the top up arrangements depend upon the precise difference between the compensation payments and the ordinary earnings. The difference required to be topped up will in any event, vary in each individual case.
4. The words "the period of 26 weeks referred to in section 36 of [the WC Act]" must be understood in the light of s 34 of the Pre-Amendment WC Act. When viewed in this way, the condition should be construed as concerning a period of 26 weeks after a worker first becomes entitled to a weekly payment of compensation including the aggregation of separate periods. Thus, the condition merely conveys that an employee will be able to access the top up provisions after the completion of 26 weeks (as understood in s 34) after the worker becomes entitled to a weekly payment of compensation. The meaning of "referred to" in this context is the period of incapacity with which s 36 is concerned.

The Interpretation Act Issue

1. The provisions of ss 36 and 37 of the Post-Amendment WC Act were "corresponding provisions" to s 36 and 37 of the Pre-Amendment WC Act as they deal substantially with the same subjects to achieve similar ends, albeit with modifications. The Amendment Act enacted ss 36, 37 and 38 which dealt with the subject matter of weekly compensation payments payable to an injured employee with no current capacity which is relevantly comparable with the weekly compensation payments to an employee during the period of total incapacity under ss 36 and 37 of the Pre-Amendment WC Act.
2. The relevant "legislative policy" is that of the award workers compensation top up provisions, and not of the WC Act. It is not sufficient for the respondents to point to changes to the weekly compensation payment arrangements in the WC Act as a result of the 2012 amendments. The question is whether the application of the Interpretation Act so as to permit a reference to the WC Act in the awards to extend to the amended provisions would be inconsistent with the policy of the award provisions or "change the character" of the provisions.
3. The approach in Lister and the authorities referred to therein does not invite hypothetical speculation as to whether the Commission would, if proceedings were now brought, vary the award provisions to refer to the new provisions. The focus is on the policy discernible from the provisions of the instrument itself. For example, in Sin Poh Amalgamated (HK) Ltd v Attorney General of Hong Kong [1965] 1 WLR 62, the question posed was whether "one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the Bill, would have rejected it." The question is whether, if the same policy evident in the existing provision were followed, there are grounds to believe that a variation would be rejected.
4. The policy of the top up provisions is readily discernible on the face of the award terms. The purpose of the award provisions is that employees who are incapacitated for work as a result of work injury and have accrued and untaken sick leave entitlements be able to use that leave to make up the difference between the amount of compensation payable under the WC Act and the employee's ordinary rate of pay and are, to that extent, able to avoid financial disadvantage due to injury. The extension of the award provisions to the amended provisions of the WC Act is entirely consistent with the policy of the award provisions.

Submissions for the Respondents

1. The submissions for the respondents are summarised below. Again, it should be noted that there is some overlap in the contentions advanced under the respective headings reflecting the issues in the proceedings.

The Construction Issue

1. The entitlement only arose if the requirements of the condition were met.
2. The condition referred to a particular entitlement that arose after a specific period referred in the Pre-Amendment WC Act. The expression determines both the time period and eligibility for top up and cannot be read at large as meaning simply "after a period of 26 weeks".
3. The words "referred to" or "referred to in", in the condition, do not mean "pursuant to", but when read with the word "the" in "the 26 week period" mean that the top up provision was drafted by reference to a particular provision in the WC Act prior to its amendment. The reference to s 36 of the WC Act must be read in the light of the meaning attributed to the "first 26 weeks of incapacity" in s 34 of the Pre-Amendment WC Act. The top up provision not only referred to the period of entitlement but how the entitlement is to be calculated such as the date from which entitlement would arise and whether it would apply to broken or unbroken periods.
4. The words "paid the period of 26 weeks" are not found in any of ss 36, 37 or 38 of the WC Act after amendment. The earlier period of 26 weeks only operated with respect to the period of total incapacity whereas the later provisions of the WC Act also applied to partial incapacity.
5. It should be noted, in this respect, that the respondents abandoned a submission that the top up provision, and in particular condition, should be read as a "referential adoption of law equivalent to a positive independent enactment" rather than a "reference" (see Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132; [2004] NSWCA 474 ("Forsyth") at [33] (per Spigelman J, with whom Giles and Gzell JJ agreed).
6. The respondents submitted that the applicant's declaration would impermissibly require the top up provision to be rewritten. Those contentions also resonate with the Interpretation Act question and hence, I will extract the respondents' submission, in that respect, at this juncture: [8] Subsections 68(1) and (3) only permit references in an award to an Act (or part of an Act) to be read as a reference to the Act (or part of an Act) in force for the time being, and only if there is no contrary intention. They do not permit provisions to be rewritten. They provide no capacity to delete words that are contained in a provision or to read into a provision additional words that it does not contain. [9] The Applicant has failed to do what is fundamental in any issue of interpretation; that is to focus on the words used in the relevant clauses. [10] Subsections 68(1) and (3) do not assist the Applicant since they cause, of course, no change to the text. If applied to the top up clause it would read: An employee who continues to receive compensation after the completion of the period of 26 weeks referred to in section 36 of the Workers Compensation Act 1987 [as it now reads]… Or at its widest: An employee who continues to receive compensation after the completion of the period of 26 weeks referred to in subsections 36(1) and 37(1)of the Workers Compensation Act 1987 [as they now read]… The words "the period of 26 weeks" are not found in either of those subsections as they now read. It is an expression that was defined in s34 of the WC Act prior to the amendments, but that definition no longer exists. The application of subsections 68(1) or (3) would mean the Award clauses do not make sense and are therefore ineffective and accordingly the declarations sought would not be made.

The Interpretation Act Issue

1. The condition expressed an intention that the entitlement would be referrable to a particular period within a particular context rather than an intention to create a broad entitlement to top up any difference between compensation and ordinary pay. It should be read as intending to apply to the particular provisions of the WC Act as it was prior to the Amendment Act.
2. The condition expressed an intention to refer to an entitlement to compensation that applied under the Pre-Amendment WC Act under which, during the first 26 weeks of incapacity (as defined in s 34), a worker (who was a fully incapacitated employee) would be entitled to maintain 100% of their ordinary rate of pay after which period (where the worker continued to be fully incapacitated and in receipt of workers compensation payments) the top up payments would apply. It was not intended to refer to any different workers compensation entitlement that emerged under the Post-Amendment WC Act. The top up clause was not intended to refer to any workers compensation entitlement that any employee, regardless of their capacity, might have after an "(undefined) 26 week period".
3. Section 68(3) did not apply as it does not permit the provisions of the top up provision to be rewritten or for the words such as "the period of 26 weeks referred to in section 36 of [the WC Act]" to be omitted. The Court would not apply s 68 as to do so would change the character of the provision such that a contrary intention would be found to exist.
4. While it may be accepted that a contrary intention is not demonstrated simply because the provisions have a different operation, a contrary intention arises if the change sought would involve a change to a policy apparent in the provision.
5. The workers compensation legislation does now have a different policy approach. There is no period of 100% compensation for the first 26 weeks as there was under the previous statutory regime. The policy which now underpins the legislation makes it clear that employees should be encouraged to return to work as soon as possible. That policy means that for the first 26 weeks employees will receive either 95% or 80% of their previous earnings, which in any event are calculated differently than they were under the 2012 Act would recourse top up payments.
6. Reliance was placed upon the Second Reading Speech to the Amendment Act in which the Treasurer stated: The Workers Compensation Legislation Amendment Bill represents a fundamental shift towards properly meeting the needs of the most seriously injured workers in the scheme while strongly incentivising return to work for those workers who have the capacity to return to work. Firstly, in the area of weekly payments of compensation, the bill makes important changes to the current weekly payments provisions of the Workers Compensation Act. These changes aim to provide support to workers in the initial period following an injury, and encourage them to return to work once they have recovered. The changes implement recommendation 6 of the joint select committee report and are consistent with the recommendation of the report. Based on the Victorian model, in the initial period, that is, the first 13 weeks of the claim, workers who have no work capacity will receive up to 95 per cent of their pre-injury average weekly earnings. From weeks 14-130 workers who have no work capacity will receive up to 80 per cent of their pre-injury average weekly earnings. The most seriously injured workers will be better off under the bill as they will receive 80 per cent of their pre-injury earnings up to week 130 rather than the current statutory rate of $432.50 which applies after the first 26 weeks. The bill implements a new scheme for the payment of weekly benefits to partially incapacitated workers. Workers who have a partial incapacity and are able to work during the 13 weeks after their claim is made will receive up to 95 per cent of their pre-injury average weekly earnings. This amount will comprise the actual wages they are earning and a top-up of the benefit. Workers who have returned to work for at least 15 hours per week will continue to receive up to 95 per cent of their pre-injury average weekly earnings in total up to week 130 after their claim. Workers who can work but who are working fewer than 15 hours per week from week 14-130 will receive up to 80 per cent of their pre-injury average weekly earnings. This amount will comprise the actual wages they are earning and a top-up benefit. If a worker who has work capacity is not working at least 15 hours per week by the end of the 130-week period, entitlement to weekly benefits will cease. However, workers who have no work capacity will continue to receive benefits of up to 80 per cent of their pre-injury average weekly earnings. This new benefit structure will support workers while they are recovering from workplace injury or illness and provide incentive to workers who have work capacity to return to work. The bill also adopts a similar model to Victoria of calculating pre-injury average weekly earnings by basing the calculation on average weekly earnings of the worker rather than the current method of the worker's current weekly wage rate at the time of injury and removing the distinction between award and non-award workers. This method of calculation is based on what a worker has actually been earning which is inclusive of specified allowances and will result in fairer and more generous payments to injured workers, particularly in the early weeks of an injury when it is important that workers are able to focus on recovery.

The Issues

1. Broadly speaking, the issues in these proceedings concerned the proper construction of the top up provisions with or without the aid of s 68(1) and (3) of the Interpretation Act, (provisions which invoked a consideration of the limitations found with s 68(3) and ultimately s 5(2)).
2. The respondents contended that the appropriate starting point for the consideration of the issues in these proceedings was a construction of the top up provisions in the light of the aforementioned principles of the interpretation of awards. The applicant did not support this submission as such but developed its oral submissions by first supplementing its written submissions as to the further contention. Given the significance of the construction of the top up provisions, to all issues raised in these proceedings, I will commence my consideration of the applications with the proper construction of the top up provision in the Conditions Award.

The Construction of the Top Up Provision

1. I have formed the view, after careful consideration of the submissions of the parties, that the respondents' contentions as to the proper construction of the top up provisions are to be preferred over those of the applicant. My reasons for that conclusion appear below.
2. The ordinary grammatical meaning of the words "referred to", when read in the context of the whole of the top up provision, and, in particular, the condition, is "to direct for information or for anything required" (Macquarie Dictionary, (7th ed, 2017, Pan Macmillan)). The words provide, therefore, grammatical cohesion between the phrase "section 36 of [the WC Act]" and the preceding phrase contained in the condition, namely, "after the completion of the period of 26 weeks". This is reinforced by the use of the word "in" after the words "referred to", which provided, in addition to syntax, reinforcement of the connection between those phrases within the condition. Further, the object of the phrase (or "referent") is "the period of 26 weeks" which is identified by the reference to s 36 of the Pre-Amendment WC Act.
3. The word "the" before the words "period of 26 weeks" in the condition is, in a grammatical sense, a "determiner" which connects "the period of 26 weeks" to the counterpart words used in s 36 of the WC Act, namely, "the first 26 weeks [of incapacity]". That correlation is significant as it indicates that the intention of the drafters of the top up provision was to fasten upon the particular mechanisms (as to eligibility) employed by the legislature to delineate entitlement under the Pre-Amendment WC Act.
4. This textual analysis alone does not entirely deal with the issue of construction proposed by the applicant. It was contended, by the applicant, that the reference within the top up provision to "the period of 26 weeks referred to in section 36 of [the WC Act]" concerned the period of incapacity derived from the combination of ss 34 and 36 of the Pre-Amendment WC Act, such that, a period of 26 weeks merely represented the period after which an employee would be able to access compensation benefits (which included the aggregation of separate periods) under, by implication, the Pre-Amendment and Post-Amendment manifestations of the WC Act and not, more narrowly, the particular set of entitlements afforded by reference to s 36 of the Pre-Amendment WC Act.

The Provisions

1. For the purposes of determining this question, s 68(1) and (3) of the Interpretation Act relevantly provide: 68 References to amended or repealed Acts and instruments (1) In any … instrument, a reference to some other Act ….extends to the other Act…, as in force for the time being. … (3) Notwithstanding subsection (1), in any … instrument: (a) a reference to an Act that has been repealed and re-enacted, with… modification, extends to the re-enacted Act, as in force for the time being, … and a reference to a provision of the repealed Act… extends to the corresponding provision of the re-enacted Act…, as the case may be.
2. Section 68(1) of the Interpretation Act permits a reference in an instrument such as the award to extend to an Act as in force from time to time. This has the effect of giving the referring legislation an ambulatory effect, subject to limitations within s 68(3) or any contrary intention being "spelled out" in the provision itself: Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 at 224 (per Sheller JA, with whom Mahoney and Meagher JJA agreed). (I will deal with the question of contrary intention separately under a later heading concerning the same.)
3. Section 68(3)(a) applies where an instrument contains a reference to an Act and that Act has been repealed and re-enacted with or without modification. Section 5(3) provides that the Interpretation Act applies to portion of an Act in the same way as it applies to the whole Act. It follows that s 68(3)(a) applies in circumstances in which a particular provision of an Act referred to in an instrument, has been repealed and re-enacted in the same terms or with modifications. The section is not limited to the repeal and re-enactment of the Act as a whole and will apply even where one provision is replaced by a number of provisions or renumbered provisions: Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220 at 222 (per Priestley JA, with whom Kirby P and Hope JA agreed). (It may be noted that no party suggested that the Amendment Act was other than a repeal and re-enactment of, inter alia, ss 36 and 37 of the WC Act. Whilst it was less clear, that position also applied with respect to s 38 of the Post-Amendment WC Act. Accordingly, hereinafter ss 36, 37 and 38 of the Post-Amendment WC Act shall be referred to as "the re-enacted provisions").

Application of Limitations in s 68(3)

1. The applicant contended that, for the purposes of s 68(3) of the Interpretation Act, the re-enacted provisions of the WC Act ss 36 and 37 (and, it would appear, s 38) were corresponding provisions to ss 36 and 37 of the Pre-Amendment WC Act provision which was repealed.
2. It was common ground that ss 36 and 37 of the Pre-Amendment WC Act were repealed and re-enacted as ss 36, 37 and 38 insofar as those provisions concerned the weekly compensation benefits for a person with no current worker capacity or total incapacity. As earlier mentioned, the Conditions Award is an instrument for the purposes of s 68.
3. It follows that, in contrast to Lister, where reliance was placed upon the whole of the various Acts in question, namely, Conciliation and Arbitration Act and Industrial Relations Act 1988 (Cth) (which was amended by the Workplace Relations Act 1996 (Cth)), the Court is here concerned with the final limb of s 68(3)(a). The focus must be upon the particular provision of the repealed Act referred to in the top up provisions. The question, therefore, is whether a provision, or in the applicant's case, the provisions in the re-enacted Act in different terms are corresponding provisions.
4. The answer to that question will require "close analysis": Lister at [9]. As earlier mentioned, where there have been considerable changes of substance to the provisions referred to in the instrument, a further question arises as to whether those alterations were modifications for the purposes of s 68(3)(a): Albury City at 222.
5. In my view, there are substantial bases for finding that the re-enacted provisions are not corresponding provisions to s 36 referred to in the top up provision and are of such a nature that they may not be described as modifications under s 68(3)(a).
6. The first difficulty for the applicant's contention, in this respect, is that s 34 of the WC Act was repealed. As the applicant accepted, s 36 of the Pre-Amendment WC Act depended for its operation upon the definition in s 34. There is no corresponding definition in the Post-Amendment WC Act. It is true that the Post-Amendment WC Act provides definitions for expressions used in ss 36 and 37 such as the first entitlement period and second entitlement period but, as earlier mentioned, there is no definition in the Post-Amendment WC Act which provides meaning and definition to the first 26 weeks of incapacity in the repealed provision s 36 which is the foundation to the operation of the top up provision (see Phoenix Commercial Enterprises v City of Canada Bay Council [2010] NSWCA 64 at [244] and [245] per Handley AJA).

Contrary Intention

1. Section 5(2) of the Interpretation Act relevantly provides that the Interpretation Act will apply to the Conditions Award except insofar as the contrary intention appears "in this Act or in… [the award]". Thus, s 68(3) will not apply to the top up provision if a contrary intention appears in that provision.
2. Thus, a contrary legal intention must relevantly be established from the text of the top up provision. That contrary intention need not be stated expressly and may appear from the scope, nature and subject matter of the award: Forsyth at [28]. Nonetheless, the Court should be slow to find a contrary intention with respect to the operation of s 68 of the Interpretation Act: Forsyth at [29].
3. As to the principles applicable to the ascertainment of contrary intention both parties relied upon the following passages from the judgement of Handley JA in Lister (at [24]-[27]): [24] The Interpretation Act and cognate legislation elsewhere has long provided that words in the singular include the plural unless the contrary intention appears. The operation of this provision in the Interpretation Act 1899 (NSW) was considered in Blue Metal Industries Ltd v Dilley [1970] AC 827. The Companies Act 1961 authorised the compulsory acquisition of the remaining shares in a company if the holders of 90% accepted a takeover offer. A takeover offer made by two companies acting jointly was accepted by the holders of over 90% of the shares in the target company and the offerors wished to compulsorily acquire the balance. The Companies Act did not apply in terms to takeover offers made by two or more companies acting jointly but the offerors argued that the Interpretation Act authorised a plural construction. Lord Morris, delivering the judgment of the Board said at 848: "The Interpretation Act is a drafting convenience. It is not to be expected that it would be used … to change the character of legislation. Acquisition of shares by two or more companies is not merely the plural of acquisition by one. It is quite a different kind of acquisition with different consequences. It would pre-suppose a different legislative policy." [25] Earlier Lord Morris had approved the following passage from the judgment of Lord Pearce in Sin Poh Amalgamated (HK) Ltd v Attorney General of Hong Kong [1965] 1 WLR 62, 67: "The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the Bill, would have rejected it." [26] These principles are relevant here because s 68(3) applies to s 42(8) "except insofar as the contrary intention appears". Any contrary intention must be found in s 42(8) as enacted in 1987, and the question posed by Lord Pearce is whether there are reasons to suppose that the Parliament, if offered an amendment to s 42(8) at any time after the 1904 Commonwealth Act had been repealed would have rejected it. Using the language of Lord Morris one asks whether an amendment to s 42(8) to insert a reference to the 1988 or 1996 Acts would change the character of the section to reflect a different legislative policy. [27] In my judgment a construction of s 42(8), with the aid of s 68(3), to include references to the 1988 and now the 1996 Commonwealth Acts would not involve any change in the legislative policy apparent in the section and there is no reason to suppose that the Parliament would have rejected such an amendment. The appeal therefore succeeds on this point.

CONCLUSIONS

1. In the circumstances, upon the proper construction of the subject awards, and the provisions of s 68(1) and (3) of the Interpretation Act, having no application to the top up provisions upon the passing of the Amendment Act due to the existence of a contrary intention for the purposes of s 5(2) of the Interpretation Act (as found in the top up provisions), the declarations sought with respect to the top up provisions of the subject awards must be rejected.
2. On 29 June 2017, the final day of hearing, the parties agreed that "each party should bear their own costs of the proceedings" and sought no order as to costs.

ORDERS

1. The Court makes the following orders in the consolidated proceedings: 1. The applications for declaration are dismissed. 2. There is no order as to costs.

Amendments 18 October 2018 - Typographical error corrected at [49]. 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: 18 October 2018