Public Service Association of New South Wales v Industrial Commission of New South Wales

(1985) 1 NSWLR 627
[1984] AR (NSW) 27
(1985) 11 IR 420

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Between: Public Service Association of New South Wales and Another
And: Industrial Commission of New South Wales and Another

Court:

Judges: Street CJ
Kirby P
Priestley JA

Subject References:
otherwise expressly provided
industrial matter
Industrial Law
Industrial arbitration
Jurisdiction of Industrial Commission
Scope of jurisdiction
Whether inconsistency between Public Service Act 1979 and Industrial Arbitration Act 1940
Public Service
Industrial awards
Claim for redundancy award
Jurisdiction of Industrial Commission
Statutes
Interpretation
Rules of construction
Presumption regarding re-enactment of previously judicially considered legislation

Legislative References:
Public Service Act 1979 - 8; 113; 114
Industrial Arbitration Act 1940 - 5(1); 84

Case References:
Agricultural Field Officers - 1953 AR (NSW) 478
Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations - (1985) 1 NSWLR 198
Clayton v Heffron - (1960) 105 CLR 214
Clyde Engineering Co Ltd v Cowburn - (1926) 36 CLR 466
Council of Civil Service Unions v Minister for the Civil Service - [1984] 3 WLR 1174
Crown Employees (Agricultural Field Officers - Department of Agriculture) and Crown Employees (Health and Food Inspectors) Awards - 1953 AR (NSW) 478
Crown Employees (Clerks, Professional, Public Trust Office and Lands Department) Award - (1929) 28 AR (NSW) 135
Federated Clerks Union and Registrar, Industrial Relations Commission (Vic) v Victorian Employers Federation - (1984) 58 ALJR 475; 54 ALR 489
Giersh v Sydney City Council - (Enderby J, 8 November 1982, unreported)
Heydon's Case - (1584) 3 Co Rep 7(a) 76 ER 637
Master Builders' Association of New South Wales, Ex parte; Re Industrial Commission of New South Wales - [1971] 1 NSWLR 655
North West County Council v Dunn - (1971) 126 CLR 247
Public Service Association of New South Wales and Public Service Board of New South Wales, Re - Dispute re Appointments to Department of Tourism - [1980] 1 NSWLR 285
R v Coldham; Ex parte Australian Social Welfare Union - (1983) 57 ALJR 574; 47 ALR 225
Rose v Hvric - (1963) 108 CLR 353
Silver Brothers Ltd, Re; Attorney-General for Quebec v Attorney-General for Canada - [1932] AC 514
Department of Tourism - [1980] 1 NSWLR 285
Watt v Geddes - (1936) 36 SR (NSW) 447; (1936) 53 WN (NSW) 161
Bridge v Davies - [1933] AR (NSW) 60
Edwards v Tooheys Ltd - (1957) 75 WN (NSW) 35
Ellen Street Estates Ltd v Minister of Health - [1934] 1 KB 590
Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd - [1973] 1 NSWLR 229
Public Service Board of New South Wales, Re Tucker - 1980 AR (NSW) 696
Shanmugam v Commissioner for Registration of Indian and Pakistani Residents - [1962] AC 515
South Eastern Drainage Board (South Australia) v Savings Bank of South Australia - (1939) 62 CLR 603
Tod v Reiher - 1960 AR (NSW) 64
Yates v Gates - [1970] 2 QB 27

Hearing date: 11 February 1985
Judgment date: 18 April 1985

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ORDER

Dismissed with costs

The Public Service Act 1979, s 8, states: "Unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act, 1940."

Held

(1) Because the wording of the Public Service Act 1979, ss 113 and 114, which deal with aspects of "industrial matters" as defined in the Industrial Arbitration Act 1940, namely excess staff and excessive salaries, indicates by way of negative implication that the functions and powers these sections create are to be exercised under that Act only, by the persons mentioned in them, the non-affectation of the Industrial Arbitration Act 1940 provided for by the Public Service Act 1979, s 8, is to be displaced. (636C, 651A-E)

Rose v. Hvric (1963) 108 CLR 353, applied.

Re Crown Employees (Agricultural Field Officers - Department of Agriculture) and Crown Employees (Health and Food Inspectors) Awards 1953 AR (NSW) 478 and Re Public Service Association of New South Wales and Public Service Board of New South Wales - Dispute re Appointments to Department of Tourism [1980] 1 NSWLR 285, distinguished.

R v Coldham; Ex parte Australian Social Welfare Union (1983) 57 ALJR 574; 47 ALR 225 and Federated Clerks Union and Registrar, Industrial Relations Commission (Vic) v Victorian Employers Federation (1984) 58 ALJR 475; 54 ALR 489, referred to.

(2) Accordingly the Industrial Commission's jurisdiction relating to excess staff or excessive salaries in the Public Service is withdrawn in respect of matters provided for in the Public Service Act 1979, ss 113 and 114. (636C-F)

(3) However the Commission does still have jurisdiction to flesh out or complement the scheme set up by the provisions of those sections provided any award made by it is not inconsistent with or contradictory of the specific provisions of those sections for the legislature has not indicated an intention to preclude the Commission from entering this field at all. (636F)

(4) (Per Kirby P) There is a presumption, useful in statutory interpretation, that where a provision of legislation has been passed upon by authoritative decisions of the courts and is later re-enacted, Parliament can be taken, in the absence of a clear intention to the contrary, to know and accept the interpretations given to the legislation. (640F)

SUMMONS

The claimants sought a declaration and an order in the nature of mandamus arising out of proceedings before the Industrial Commission of New South Wales where the Commission dealt with an award proposed by them by, inter alia, holding it lacked jurisdiction to make an award in the terms sought because of a number of sections in the Public Service Act 1979.

D M J Bennett QC with J W Shaw and R A Sackville for the claimants.

R C Kenzie QC and B C Hungerford, for the second opponent.

Summons dismissed with costs

Solicitors for the claimants: W C Taylor & Scott.

Solicitor for the second opponent: H K Roberts (State Crown Solicitor).

R J DESIATNIK, Barrister.

(c) Council of Law Reporting for New South Wales, 2004.

Cur adv vult