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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(Judgment by: PRIESTLEY JA)

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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Judgment by:
PRIESTLEY JA

The circumstances of these proceedings are fully stated in the reasons for judgment which have already been given. The substantial relief that has been sought by the Public Service Association of New South Wales (the PSA) is an order in the nature of mandamus to compel the Industrial Commission of New South Wales (the Commission) to hear and determine the application by the PSA for a Government Employees' (Redundancy) Award which had been sought in twenty-two detailed paragraphs. It was not contended by any of the parties to the proceedings before us that this Court did not have jurisdiction to consider whether an order in the nature of mandamus should be made. It was accepted that such an order would not fall within the prohibitions of the Industrial Arbitration Act 1940 (the IAA), s 84. It was also accepted by all parties that if the terms of the IAA alone were looked at, the Commission undoubtedly had jurisdiction to make the award in the terms asked for.

The Commission's view was that parts of the sections in the Public Service Act 1979 which were the subject matter of the debate between the parties made it clear that some functions and powers which the Public Service Act vested in the governor, the Public Service Board, the Minister and the department head were to be exercised under that Act by those persons and no other persons. On that footing, the Commission then dealt with a number of the subject matters set out in the award sought indicating those which it thought fell within the functions and powers intended to be exercised to the exclusion of the Commission and those which did not fall within that category. Their conclusion was that the substantial part of the claim for the award could not be made the subject of a general award by the Commission.

The Commission then did not proceed to make an award in respect of those parts of the award claimed which were considered to be within the power of the Commission but left it to the parties to consider what further steps if any should be taken with respect to so much of the claim as might be within power.

In this Court the PSA contended that the whole of the claim was within power. Alternatively, we were asked to say, if not all of the claim was within power, which parts were.

If s 8 were not in the Public Service Act it would in my opinion be reasonably clear that the Public Service Act, ss 112 to 115, and in particular ss 113 and 114 which were at the centre of the argument before us brought about the result that the particular matters with which they dealt were to be dealt with under the Public Service Act and not the IAA. The principal question in the case before us was what effect the Public Service Act, s 8, had on this position.

We were referred to a number of cases in which statutory provisions bearing a resemblance to s 8 had been considered by different courts. The most significant of these for the guidance of this Court is Rose v Hvric (1963) 108 CLR 353. In that case the High Court considered the relationship of sections in the Licensing Act 1958 (Vic) and the Justices Act 1958 (Vic). The Acts were enacted contemporaneously. The Justices Act, s 74, empowered justices if they thought fit to impose a pecuniary penalty instead of a term of imprisonment for offences coming before them, whether or not they otherwise had specific authority to impose a penalty instead of imprisonment.

This power was, however, subject to the opening words of the section "Except where otherwise expressly enacted". The Licensing Act, s 154, made certain offences under that Act punishable by imprisonment only. The High Court in a joint judgment (Kitto, Taylor and Owen JJ) held that the two sections could be read together without inconsistency. In arriving at this conclusion observations were made which are of assistance in approaching the central question in the present case.

The reasoning in Rose v Hvric involves the following sequence of steps.

(1)

(a)

Exceptive words such as those used in s 74 have no legal effect beyond saving earlier enactments which would otherwise be inconsistent with a later provision.

(b)

In regard to later enactments they have no legal effect at all.

(2)

Although the enactments in question were contemporaneous, the same result must apply in that the exceptive words in s 74 could have no legal effect.

(3)

"Expressly" in s 74 merely served to emphasize what is in any event the ordinary rule and cannot be understood as excluding enactments by implication, because the ordinary rule does not.

(4)

But there is a difference between inconsistency by implication and inconsistency by inference. This distinction is a distinction between

(i)

a later provision the meaning of which showed that a particular subject matter was intended to be dealt with by the provision, and

(ii)

a later provision which, although it would logically lead to the subject matter being dealt with in a particular way, did not itself, as a matter of its own meaning, say so.

(5)

Although there was inferential inconsistency between the Licensing Act, s 154 and the Justices Act, s 74, the meaning of s 154 was not inconsistent with s 74. The next step the draftsman might have been expected to take was not taken.

In reaching the conclusion in step (5) the High Court pointed out that both sections in question were expressed affirmatively and the question resolved itself into whether s 154 notwithstanding its affirmative form contained a negative implication precluding the application of the general provision of s 74 (see especially at 359-360).

In the case before us there are two features in the relationship of the two statutes in question different from those in Rose v Hvric. In that case the "except where otherwise expressly enacted" qualification was in the statute having the general effect. In the present case the exceptive words are in the later statute dealing with a particular area within the earlier statute's operation over a wider area including the particular area. The different sequence means that the present case falls within step (1)(a) mentioned above and not within (1)(b) and the subsequent steps in Rose v Hvric which are all relevant to a (1)(b) situation. This consideration reinforces the point that the Public Service Act, s 8, must be intended to operate where there is an inconsistency between the IAA and the Public Service Act. In the absence of inconsistency there is no work for s 8 to do. It follows that the section must contemplate that before it operates there must be in addition to the inconsistency some further indication than the inconsistency itself, in the Public Service Act, showing that the inconsistent provision is intended to affect the IAA. Bearing that in mind and adapting what was said in Rose v Hvric (at 359-360) the question becomes in the present case whether the meaning of the Public Service Act, ss 112-115, is, by way of negative implication, that the functions and powers they create are to be exercised under that Act by the persons mentioned in them and no other persons.

To my mind, such a negative implication is to be found, at least in respect to certain matters. Section 113 for example requires the Minister, after stated procedures have been followed, to satisfy himself of a particular matter. That having happened the Public Service Board must take specified steps. One of the steps, if certain circumstances obtain is to dispense with the services of a particular employee. The steps involved in what is to be done pursuant to s 113 seem to me to involve clearly that they shall be taken by the persons mentioned in the section and nobody else. The words that seem to me to make this clear are "If the Minister ... or ... Department Head, is satisfied ... then ... the Board shall ...". Section 114 is, to my mind, to the same effect in regard to its somewhat different subject matter. The operative words there are "if the Minister ... or ... Department Head, is satisfied ... the Department Head shall [or] ... the Board shall ...".

Stated in a different way the Public Service Act, ss 113 and 114, seem to me to deal with an aspect of "industrial matters" as defined in the IAA and to indicate by the ordinary meaning of their words that that aspect of the operation of the IAA is intended to be affected by the Public Service Act. I therefore think that it is "otherwise expressly provided" by those sections that the non-affectation of the IAA provided for by the Public Service Act, s 8, is to be displaced.

The foregoing conclusion disposes of what was the principal argument before us. The argument was supported by a detailed examination of the legislative history of the relevant sections and their predecessors. This history was instructive as a matter of background and the possible meaning of words used in the relevant statutes. However it did not seem to me to cast any light on the questions of interpretation in the case over and above what is to be found in the words of the relevant statutes themselves, which are after all the actual statement by the legislature of what the law on the subject is. It has therefore not seemed to me to be useful, in this case, to do more than state the short and simple considerations which lead me to my conclusion, and which the statutory language seems to me to permit and require.

The failure of the PSA's principal argument leaves, however, the secondary question for consideration. That is, was the Commission right in its culling out of those parts of the claimed award which the Commission had jurisdiction to include in an award, from those which it did not. The method adopted by the Commission was to deal with these matters item by item under the headings "Notice", "Finding of other employment" and so on. In regard to some of the matters dealt with, although opinions were expressed, they were not stated in final form. For example, after saying that cl 8 of the claimed award would run contrary to the Public Service Act, ss 112 to 115, the Commission said that it saw "difficulty with clause 9 ... for similar reasons". In the same way it was said that cl 17 fell "within difficulties earlier discussed". Reference was also made to the possibility of there being compelling discretionary arguments against the making of some general prescriptions even although they might be within the power of the Commission to make. The reason for the Commission leaving some matters in this incomplete state was the eminently practical one already mentioned, that having ruled on what I have called the principal question, the Full Bench left it to the parties to consider what should thereafter be done. The alternatives were that the main part of the PSA's claim having failed it might be abandoned altogether in which case no further action would be required from the Commission, or, if the PSA desired to have an award made in respect of so much of the claim as was within the power of the Commission, an amended claimed award would have to be framed, either to be agreed between the parties subject to the approval of the Commission, or if not agreed between them then to be subject to the further adjudication of the Commission. Instead, the PSA brought proceedings direct to this Court by summons without first obtaining a formal award.

In these circumstances it seems to me not to be appropriate for this Court to embark on any greater particularity than the Commission. Further, it is possible that if the PSA does seek to have the Commission make so much of the claimed award as is possible within jurisdiction, the award in its final form may raise somewhat different or additional questions from those discussed in the judgment presently under consideration. It seems to me to be appropriate for this Court to reserve for its later consideration, if it should become necessary, the particular questions dealt with by the Commission under the various subheadings I have mentioned. My present and tentative opinion is that there is nothing in what was said in the Commission's judgment on the matters of detail dealt with under the subheadings with which I disagree.

However, if the matter should again come before this Court it should only be by reference to a final award made by the Commission and this Court should be free then to decide finally any questions of the detailed content of the award.

In my opinion the PSA's summons should be dismissed with costs.