Industrial Relations Commission New South Wales

• Medium Neutral Citation: West v Director-General, NSW Ministry of Health in respect of Western Sydney Local Health District [2014] NSWIRComm 1001
• Hearing dates: 6 December 2013
• Decision date: 10 January 2014
• Jurisdiction: Industrial Relations Commission
• Before: Newall C

Decision

Motion upheld. Appeal dismissed.

• Catchwords: Public sector disciplinary appeal - application for summary dismissal of appeal - asserted exclusion of appellant by effect of s.92(1)(b) of the Industrial Relations Act 1996 - principles of statutory interpretation - industrial instrument - literal meaning of statute - circumstances in which statute can be construed to be ineffective - obligation to give effect to statute where possible - preferred interpretation of subs.92(1)(b) - appeal excluded by s.92(1)(b) - motion upheld - appeal dismissed
• Legislation Cited: Government and Related Employees Appeal Tribunal Act 1980; Health Services Act 1997 s.116A; Industrial Relations Act 1996 s.8, s.91, s.92, subs.92(1)(b), s.98; Interpretation Act 1987 s.33
• Cases Cited: Annetts v McCann (1990) 170 CLR 596 Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412; Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 654; Director-General of Education v Suttling (1986) 162 CLR 427; Goundar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300; Momcilovic v The Queen (2011) 245 CLR 1; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v Young [1999] 46 NSWLR 681; Rail Corporation of NSW v Brown [2012] NSWCA 296
• Category: Principal judgment
• Parties: Mr Robert West - Applicant; Director-General, NSW Ministry of Health - Respondent
• Representation: Mr D Chin (Applicant); Mr M Kimber SC, Mr O Fagir (Respondent); Petrine Costigan Lawyers - Applicant; Messrs Maddocks - Respondent
• File Number(s): IRC 151 of 2013

DECISION

Overview

1 This is a decision on a Notice of Motion brought within the overall context of a Public Sector Disciplinary Appeal, made under Part 7 of Chapter 2 of the Industrial Relations Act 1996, ('the Act') by Mr Robert West against the decision of the Director-General, NSW Ministry of Health, to dismiss him from his employment.

2 The respondent to Mr West's appeal has moved to have that appeal summarily dismissed.

3 It was not in contest that Mr West, as a person employed in the NSW Health Service, was a 'public sector employee' within the meaning of s.91 of the Act. Such a 'public sector employee' has a prima facie right to appeal against an appealable decision of his employer, which relevantly includes a decision to dismiss an employee from his employment, pursuant to s.98 of the Act.

4 The applicant on the motion, however, asserts that the prima facie position is in this case displaced by effect of s.92(1)(b) of the Act and that Mr West's appeal must be dismissed as being invalidly brought.

Section 92 of the Act

5 Section 92, which is within Part 7 of Chapter 2 of the Act, provides as follows:

92 Application of Part

(1) This Part applies to and in respect of promotion appeals and disciplinary appeals by public sector employees other than those public sector employees or employees of a class of public sector employees who under:

(a) an award or enterprise agreement made or approved by the Commission on or after the commencement of this section are not entitled to appeal to the Commission under this Part, or

(b) an industrial instrument or any other agreement, contract, understanding or undertaking (whether express or implied) were not entitled to appeal to the Government and Related Employees Appeal Tribunal under the Government and Related Employees Appeal Tribunal Act 1980 as in force immediately before its repeal.

(2) Notice of an industrial instrument or any other agreement, contract, understanding or undertaking referred to in subsection (1) in relation to public sector employees or employees of a class of public sector employees may be published on the website of the Department of Premier and Cabinet.

6 The reference in subs.92(1)(b) to the repeal of the Government and Related Employees Appeal Tribunal Act 1980 ('the GREAT Act') is to be understood in that by Act 54 of 2010, the GREAT Act was repealed and the jurisdiction formerly exercised by the Government and Related Employees Appeal Tribunal ('GREAT') transferred to this Commission, with effect from 1 July 2010.

7 It is to be observed that on its face s.92 as a whole expressly contemplates the parameters of the statutory powers exercisable by this Commission under Part 7 of Chapter 2 of the Act being effectively delimited by not only awards of the Commission or enterprise agreements approved by it, but by effect of, for example, any agreement, contract, understanding or undertaking, including one arising by implication, between parties not specified in the Section.

8 However, It is essential to note that s.92(1)(b), on which the applicant here relies, of itself does not bestow a power on either the Commission or parties to create exclusions from Part 7. What s.92(1)(b) does, or purports to do, is something else; to limit access to Part 7 on the basis of a recognition of the existence of certain previously-established circumstances.

9 Put succinctly, in contrast to subs.92(1)(a), which gives a power to the Commission to effect exclusion from the provisions of Part 7 of the Act prospectively by the making of an award or enterprise agreement, subs.92(1)(b) merely delimits access to Part 7 on the basis of a situation already existing at the time s.92 was inserted, that is, access to Part 7 is denied to persons 'who were not entitled' to appeal to GREAT immediately before the repeal of the GREAT Act, and the creation of s.92.

10 That effect of s.92(1)(b) was expressly recognised by the Minister responsible for the passage of the Bill inserting Part 7 into the Act: 'Importantly, [the Bill] will maintain the current exclusions for temporary employees and officers above Clerk grade 11-12 and recognise current agreements and arrangements negotiated between public sector employers and unions that remove appeal rights for certain workers.'

( NSW, Parliamentary Debates, Legislative Assembly, 10 June 2010, 24227)

Asserted basis for exclusion by effect of s.92

11 As I note above, the applicant on the motion asserts that s.92(1)(b) operates so as to deny Mr West the ability to bring an appeal pursuant to s.98 of the Act.

12 The basis of this claimed displacement of a statutory right is said to lie in the formation of a Memorandum of Understanding between the Health Services Union and the then NSW Department of Health entitled "Memorandum of Understanding between the NSW Department of Health and the Health Services Union for the period 1 July 2008 to 30 June 2011'. ('the MOU')

13 The MOU was signed on 23 September 2008, that is, before the introduction of Part 7 of Chapter 2 of the Act, including s.92, in July 2010.

14 Clause 10 of the MOU, headed "Understandings and Undertakings", relevantly provides:

...10.3 The payment of the salary and salary related allowance increases detailed in clause 4 above are dependent upon and conditional on:

10.3.1 The Union agreeing to the provisions outlined in Attachment 1 and consent variations to the relevant Awards to implement the provisions where applicable; and

10.3.2 a commitment by the Union to work co-operatively and positively with NSW Health to facilitate implementation by NSW Health of the provisions of Attachment 1.

15 Attachment 1 lists the agreed matters. They include:

- Remove public health system staff covered by the Union from coverage of the Government and Related Employees Appeal Tribunal.

16 I note that the salary increases to which cl. 10.3 refers were subsequently given effect by consent award variation.

17 The MOU was, on the evidence, subsequently published on the website of the Department of Premier and Cabinet.

The contention that the MOU is contemplated by s.92

18 Put shortly, the applicant advances the proposition that the MOU acted to give rise to the exclusion of Mr West's appeal on the basis that the MOU was both an 'industrial instrument' and an 'agreement, contract, understanding or undertaking' within the meaning of s.92(1)(b).

19 It was said that the MOU had the effect that employees covered by the MOU 'were not entitled to appeal', in the words of s.92(1)(b), to the Government and Related Employees Appeal Tribunal under the GREAT Act as in force immediately before its repeal: Submissions, para 7.

20 On its face, however, the MOU did not itself take away the right to appeal to GREAT in respect of those employees it covered, as the respondent correctly asserts (Submissions, paragraphs 40-46). Rather, it recorded an agreement that that right would be taken away, a legislative process causing that to occur being contemplated.

21 I here observe that contrary to the applicant's submission, I cannot accept the characterisation of the MOU as an 'industrial instrument' within the meaning of the definition contained in s.8 of the Act. The MOU could only possibly be, of the items set out in s.8, a 'public sector industrial agreement' . But it cannot be that, as that term is itself defined in the Dictionary to the Act, as the MOU has no statutory force and therefore cannot be an agreement 'similar to' an agreement under subs.26(4) of the then-Area Health Services Act 1986, a requirement, pursuant to subs.26(5), of that definition.

22 However, the MOU in my view can properly be regarded as an 'agreement, contract, understanding or undertaking' within the meaning of s.92. These are, as the respondent correctly submits, words of the broadest coverage, and the MOU provides at very least the level of formality required for the formation of an 'agreement' or an 'understanding'.

23 I here note that it was said by the respondent that Mr West, not, on his evidence, being a member of the HSU and not having been privy to or aware of the formation of the MOU, could not be bound by it.

24 That is not in my view correct. In short, s.116A of the Health Services Act 1997 defeats that proposition. It is not necessary to repeat that statutory provision in the body of this decision.

25 To return to the thread of the matter, the question therefore becomes, what is actually meant by the words 'not entitled to appeal' appearing within s.92(1)(b)?

26 It is appropriate that I turn here to principles of statutory construction.

Principles of statutory construction

27 The principles of statutory construction generally to be applied are not in doubt. Those principles, which have been recently restated by the High Court, may be summarised as follows.

28 The duty of a court or tribunal when construing a statute is to give the words of a provision the meaning that the legislature is taken to have intended them to have: Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412; [2012] HCA 56 at [25].

29 The determination of the purpose of a statute or a particular provision within it may be based on an express statement of purpose contained within the statute itself, from inference from the test of the statute and, if appropriate, reference to extrinsic material: Certain Lloyd's Underwriters loc cit at [25].

30 Whilst ordinarily the legal meaning of a statutory provision will correspond with its grammatical meaning, that will not always be the case: Certain Lloyd's Underwriters loc cit at [25], [68].

31 The necessary first step in any construction of a statute is an analysis of the words of a provision; that is, a consideration of the ordinary and grammatical consideration of those words. That step must involve the consideration of that meaning in the context of the statute as a whole: Certain Lloyd's Underwriters loc cit at [23], [88].

32 That context may include the broader sense of 'the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy': Certain Lloyd's Underwriters loc cit at [68].

33 It is possible that the context of the words, the consequences of a literal or grammatical construction, the purpose of a statute or the canons of construction may require that the words of a legislative provision are read in a way that does not conform with their literal or grammatical meaning: Certain Lloyd's Underwriters loc cit at [68], Momcilovic v The Queen (2011) 245 CLR 1 at [45].

34 A court is not at liberty to give a provision a strained or unnatural construction to extend its effect: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113. However, where the purpose of a legislative provision is clear a court may be justified in giving the words of a provision a strained construction to achieve that purpose. If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than record that it has been missed: Newcastle City Council loc cit at 113.

35 In an exceptional case a court may depart from the grammatical meaning and give words a strained meaning where the ordinary meaning would contradict the legislative purpose: Momcilovic loc cit at [45].

36 A court when construing a statutory provision should strive to give meaning to every word in the provision and should avoid a construction which leaves any provision as superfluous, void or insignificant: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].

37 In the interpretation of a statutory provision, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object: Interpretation Act 1987 s.33.

38 In order to construe the words actually used by parliament, it is sometimes necessary to give those words an effect as if they contained additional words. This does not permit adding words to the statute. It rather involves reading the statute as if the additional necessary words had effect. That may only be done, however, if the words which actually appear in the statute are open to such a construction: Rail Corporation of NSW v Brown [2012] NSWCA 296 at [45], citing with approval R v Young [1999] 46 NSWLR 681.

39 Those are the general principles to be applied in all questions of statutory construction.

40 It is further the case that where legislation is beneficial legislation, particular canons apply, subject to the general principles set out above.

41 In my view there can be no serious doubt that the provisions of Part 7 of Chapter 2 of the Act constitute beneficial legislation: see Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 654. They grant significant rights protective of employees above those available under the common law.

42 That means that the provisions 'should be construed so as to give the fullest relief of which the fair meaning of the legislation will allow': Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 per Isaacs J. Where there may be doubt as to the Parliament's intention, the court should favour an interpretation which favours the individual: Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449 at [33]-[34].

Construction of s.92

43 Subsection 92(1)(b) is, as noted above, an unusual provision in that it purports to recognise agreements which had the effect of contracting out of a statutory provision, including by implied agreement.

44 The respondent to the motion submits that s.92(1)(b) cannot have that effect, as parties to an employment contract simply cannot contract out of a statute that governs the terms and conditions of that employment: Director-General of Education v Suttling (1986) 162 CLR 427 at 437-8. The MOU, it was said, was necessarily ineffectual so far as it purported to oust the jurisdiction of GREAT over Mr West's appeal rights.

45 What, then, is to be made of the effect of subs.92(1)(b); specifically, as I say above, what is meant by the words 'not entitled to appeal' within the meaning of s.92(1)(b)?

46 It is apparent that subs.92(1)(b) actively contemplates that the removal of, or loss of entitlement to, rights to appeal to GREAT might have been effected, not by statutory or regulatory amendment as would be, consistent with the respondent's argument, required, but by agreements, understandings or undertakings, including implied ones. That is, s.92(1)(b) in its terms recognises or purports to recognise an ability in parties to contract out, including by implication, of the statutory scheme that created and set out the jurisdiction of GREAT.

47 Subsection 92(1)(b) does not of itself create that ability to contract out, it merely recognises or sanctions its existence.

48 On the respondent's submission, that cannot be done. Indeed, on the premise necessarily underpinning the respondent's submissions, the loss of the ability to appeal to GREAT could not have been effected by an industrial agreement, let alone an 'agreement' or 'understanding'.

49 However, if the view is adopted that parties simply could not have formed an agreement or understanding that denied certain employees access to GREAT, that is, an agreement or understanding that certain employees 'were not entitled to appeal' to GREAT, then subs.92(1)(b) not only has no work to do, it is in fact a nonsense; that is, it purports, wholly invalidly, to proceed on the basis of a situation that could never be at law.

50 Counsel for the respondent faced that proposition squarely and submitted in terms that s.92(1)(b) was drafted on a false premise, and is for that reason simply ineffective.

51 It can of course occur that invalid legislation is passed, and that a court may be required to so determine: Goundar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300 at 308; Annetts v McCann (1990) 170 CLR 596 at 600.

52 However, it is apparent that a court will be slow to find that a statutory provision is invalid and falsely conceived if there is a means whereby, within the canons of statutory construction, it can rather be read to have effect.

53 The court's obligation is to, if it can properly be done, ensure that the legislative provision hits its target rather than record that it has missed: Newcastle City Council loc cit. That is the more so when it is clear, as it is here - not least from the Minister's speech set out above - what the Parliament's intention was in passing the statutory provision: Newcastle City Council loc cit.

54 I am obliged to give the words of the statute the meaning that the legislature is taken to have intended them to have: Certain Lloyd's Underwriters loc cit at [25].

55 As I set out above, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object: Interpretation Act 1987, s.33.

56 In my view subs.92(1)(b) can be read to be effective. It can be read, without a strained or unnatural meaning, to have the effect that the Parliament evidently intended.

57 That can be done, in my view, by reading the words of subs.92(1)(b) as saying:

...a class of public sector employees who under:

(b) an industrial instrument or any other agreement, contract, understanding or undertaking (whether express or implied) had agreed that they were not entitled to appeal to the Government and Related Employees Tribunal...

the underlined words showing the manner in which the subsection is to be read.

58 This is not to insert words into the provision. Rather it is to read the provision as if the additional necessary words had effect: Rail Corporation of NSW v Brown loc cit at [45]; R v Young [1999] 46 NSWLR 681. In my view that can here be done because the words that actually appear in the statute are open to precisely that construction, and indeed in my view compel it; the subsection concerns itself precisely with agreement.

59 As the applicant submitted, the purpose of s92(1)(b) is apparent from the text of the provision itself. The words of the provision convey a parliamentary intention to give statutory imprimatur to earlier agreements that access to GREAT would be limited.

60 So far as the construction I set out above might be said to be 'strained', that is in any event permissible to prevent the evident purpose of s.92(1)(b) being defeated: Momcilovic v The Queen loc cit.

61 As in my view subs.92(1)(b) can be read and understood in the terms in which it appears, questions of reading the provision down for reason that it is contained within beneficial legislation do not arise.

Effect of preferred construction of s.92

62 If that reading of subs.92(1)(b) is adopted, as in my view it must be, the question then becomes whether that 'agreement' that access to GREAT was to be limited was in fact formed.

63 Demonstrably, the MOU recorded an agreement by the parties that the right of appeal to GREAT would be taken away for certain employees. That is abundantly clear from the extract set out at paragraphs 14 and 15 above. A legislative process was indeed considered to effect the removal of the right, but the agreement that the removal would occur is clear. While consideration of such an agreement, as opposed to a binding contract, is not required, (the more so as under subs.92(1)(b) an implied agreement is contemplated as being effective), I observe that salary and salary-related benefits were in fact paid in consideration of the agreement.

64 On the reading of subs.92(1)(b) that I regard as necessary, the fact that there was not a subsequent legislative removal of the right to appeal, as argued by the respondent, is not to the point. The agreement that it would occur suffices.

65 The MOU is an agreement or understanding under which employees 'were not entitled' to appeal to GREAT, within the meaning of s.92(1)(b), as that subsection is properly understood.

66 That being so, subs.92(1)(b) has the effect that Mr West is a public sector employee of a class to which Part 7 of Chapter 2 of the Act does not apply.

67 Accordingly, Mr West had no capacity to bring an appeal pursuant to s.98 of the Act. His appeal must be dismissed for want of jurisdiction.

Orders

1. The relief sought in the Notice of Motion filed by the Respondent on 23 October 2013 is granted.

2. The proceedings in Matter IRC 151 of 2013 are dismissed.

PETER NEWALL

Commissioner

Amendments

21 January 2014 - Mr M Seck deleted and substituted with Mr O. Fagir
Amended paragraphs: Coversheet/Representation

Decision last updated: 21 January 2014