Industrial Relations Commission New South Wales

• Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23
• Hearing dates: 22 November 2013; Written submissions 29 November and 6 December 2013
• Decision date: 14 May 2014
• Jurisdiction: Industrial Court of NSW
• Before: Walton J, President

Decision

I propose to grant the applicant's amended application for declaratory relief, subject to one issue concerning the form of the appropriate order. Whilst the terms of cl 65.1 are identical in the Award and the reviewed Award, it may be that any order made to reflect this judgment should properly refer to the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. I shall give the opportunity for further submissions by either party, in this respect, which should be filed and served within 14 days of this judgment.

• Catchwords: AWARD - application for declaratory relief - public sector employment - consultation provisions of a conditions of employment award - agreed consultation arrangements reached prior to making of award - further consultation arrangements promulgated - issue whether consultative provisions of award obliged compliance with agreed consultative arrangements rather than arrangements promulgated later in time by respondent - relevant statutory provisions - s 154 - principles for the interpretation of awards - principles governing the declaratory jurisdiction under s 154 - rights - discretion - utility - whether "document" in subject clause to be read as generic or ambulatory - whether clause requires adherence to consultation with agreed arrangements - if so whether clause of award invalid - whether award clause and agreed consultative arrangements aspirational or directory in nature - whether legal relations created - whether clause legally having effect enforceable - found intention that there be effective means of consultation in form of agreed arrangements - legal obligation to comply with agreed arrangement vis á vis award clause - enforceability - discretionary considerations - utility - other factors such as delay - declaration to be made - further submissions as to form of declaration
• Legislation Cited: Acts Interpretation Act 1901 (Cth): ss 46; 15AA; 15AB; Equity Act 1901: s 10; Government Sector Employment Act 2013: ss 49; 50; Industrial Relations Act 1996: ss 3; 3(g); 3(h); 6(1); 6(2); 6(2)(g); 10; 11; 12; 17; 19; 19(1); 19(2); 19(3); 19(6); 154; 175; 179; 357; Interpretation Act 1987 (NSW): ss 3(1); 5(2); 5(6); 9(2), 31; 32; 33; Public Sector Employment and Management Act 2002: ss 4A, 27, 38, 107; Trade Practices Act 1975 (Cth): s 80(4); Workplace Relations Act 1996 (Cth)
• Cases Cited: ACCC v Chen [2003] FCA 897; (2003) 132 FCR 309; (2003) 201 ALR 40; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; Attorney-General v Scott (1904) 20 TLR 630; 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; Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; (2003) 201 ALR 271; Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1; (2012) 285 ALR 27; Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365; Autoclenz Ltd v Belcher [2011] UKSC 41; [2011] 4 All ER 745; [2011] I.C.R. 1157; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; Bryce v Apperley (1998) 82 IR 448; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 248 CLR 378; (2012) 293 ALR 412; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362; Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337; Comdox (No 272) Pty Ltd (t/a Ronald Stead Golf) v Dawson (1993) 49 IR 458; Commission of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257; Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360; 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; Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70; (2007) 161 IR 96; Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444; Forster v Jododex Aust. Pty Ltd [1972] HCA 61; (1972) 127 CLR 421; Gardner v Dairy Industry Authority of New South Wales (1978) 18 ALR 55; George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498; Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655; Formosa v Department of Social Security (1988) 46 FCR 117; 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; Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT [2002] NSWIRComm 32; (2002) 122 IR 178; Hollingsworth v Commissioner of Police, NSW Police Service [2005] NSWIRComm 279; (2005) 146 IR 285; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; (2006) 154 FCR 425; In Re Textile Workers Union [1913] AR 179; Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43; Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks Union of Australia (NSW Branch) [2001] NSWIRComm 141; (2001) 106 IR 217; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Kucks v CSR Ltd (1996) 66 IR 182; Lewis v Green [1905] 2 Ch 340; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31; Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217; Perisher Blue Pty Ltd v Australian Workers' Union (1999) 91 IR 274 at 283; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) [1995] HCA 36; 184 CLR 301; Prenn v Simmonds [1971] 3 AII ER 237; [1971] 1 WLR 1381; Principles for Review of Award [1998] NSWIRComm 661; (1998) 85 IR 38; Public Employment Industrial Relations Authority v Health and Research Employees' Association of New South Wales (1994) 54 IR 162; Public Service Association and Professional Officers' Amalgamated Unions of New South Wales v Department of Education and Communities [2013] NSWIRComm 32; Public Service Association and Professional Officers' Associated Amalgamated Union of New South Wales [2014] NSWCA 116; Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318; (2012) 219 IR 67; Re Broken Hill Commerce and Industry Consent Award (No 2) [2002] NSWIRComm 309; (2002) 120 IR 429; Re Corrections Health Services Nurses' (State) Award (1999) 90 IR 235 at 245; Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123; Re Maritime Services Board (Cargo Handling Operators) Award [1960] AR (NSW) 434; Re Poultry Industry Preparation (State) Award and other awards [2003] NSWIRComm 129; Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159; (2002) 122 IR 13; Re University of New South Wales (Conditions of Employment) Award [1960] AR 631; Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR989; [1976] 3 All ER 570; Ridge v Lyon [1910] AR (NSW) 427; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438; San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291; Sanky v Whitlam (1978) 142 CLR; Short v F W Hercus Pty Ltd (1993) 40 FCR 511; Tempo Services Ltd v Strezouski [2005] NSWIRComm 329; (2005) 146 IR 411; Transport Workers' Union (NSW Branch) v Walker Civil Engineering (1999) 91 IR 153; Zoological Parks Board (NSW) v Australian Workers Union [2004] NSWIRComm 85; (2004) 135 IR 56
• Category: Principal judgment
• Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant); Secretary of the Treasury (Respondent)
• Representation: M Gibian of counsel (Applicant); S B Benson of counsel (Respondent); W G McNally Jones Staff (Applicant); Crown Solicitor's Office (Respondent)
• File Number(s): IRC 751 of 2013

Judgment

1 By way of an amended application filed on 18 September 2013, the applicant, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('PSA'), sought a declaration under s 154 of the Industrial Relations Act 1996 ('the Act') that the respondent, the Secretary of the Treasury, is bound by cl 65.1 of the Crown Employees (Public Service Conditions of Employment) Award 2009 ('the Award') to consult (with that organisation of employees) in accordance with the terms of a document known as the 'Consultative Arrangements, Policy and Guidelines' published in Circular C1997-53 on 29 August 1997 ('the 1997 Consultative Arrangements' and 'the 1997 Circular' respectively).

2 The application arises out of the publication by the respondent of a document described as "Consultative Arrangements: Policy and Guidelines (2012)" in Circular C2012-13 ('the 2012 Consultative Arrangements' and 'the 2012 Circular' respectively), which purported to have the effect of superseding the 1997 Consultative Arrangements. The 2012 Consultative Arrangements were published on 25 June, after which time the respondent ceased to implement the 1997 Consultative Arrangements over objection by the PSA (which claimed that those actions constituted a breach of the Award). It might be noted that the respondent contended that the 2012 Consultative Arrangements did not change the actual means of consultation.

3 The declaration sought by the applicant was as follows:

That clause 65.1 of the Crown Employees (Public Service Conditions of Employment) Award 2009 requires the respondent to comply with the Consultative Arrangements, Policy and Guidelines document published in Circular C1997-53.

Issues for Adjudication

4 The parties joined issue in these proceedings primarily upon the question of whether cl 65.1 of the Award required, as a matter of legal obligation or right, adherence to the terms of the 1997 Consultative Arrangements. It was contended by the respondent that the absence of such a legal obligation precluded the grant of a declaration (the applicant did not demur, in the conduct of its case, with this contention).

5 As the respondent's submissions tended to frame the parameters of that contest, they represent a useful platform to delineate the issues in the proceedings. Those contentions, in short form, were as follows:

(1) The term 'document' in cl 65.1 was intended as a generic descriptor which denoted an ambulatory policy document rather than a particular reference to the 1997 Consultative Arrangements. The 1997 Consultative Arrangements were not incorporated into the Award by reference to the document in cl 65.1 such that the 1997 Consultative Arrangements became an enforceable term of the Award.

(2) Alternatively, if the Court determined that cl 65.1 did, in fact, refer to the 1997 Consultative Arrangements such that the document became enforceable, a declaration was nevertheless unavailable as the provision failed to meet the requirements of s 10 of the Act. This is because, on the construction proposed by the PSA, the Award clause would not set conditions of employment but rather delegate those functions to those constructing or implementing arrangements under the 1997 Consultative Arrangements. In that event, cl 65.1 would constitute an ultra vires delegation of the Commission's power, making the clause invalid (such that a declaratory order ought not be made).

(3) The clause was, upon either construction, aspirational in nature and, consequently, was not of a character to create legally enforceable rights or obligations.

6 It might be noted that both parties also advanced submissions as to the Court's discretion under s 154. In this respect, the respondent raised, inter alia, the absence of any difficulties concerning the actual means of consultation after the introduction of the 2012 Consultative Arrangements and the existence of alternative mechanisms to deal with disputes or grievances under the Act. I will deal with contentions as to the exercise of the Court's discretion later in this judgment.

Course of the Proceedings

7 The factual background of this matter was wholly uncontested. The evidence for the applicant was in the form of two affidavits of Anthony D'Adam, sworn 17 October 2013 and 4 November 2012, and an agreed Application Book consisting of two volumes. Mr D'Adam was not required for cross-examination.

8 The respondent's evidence consisted of the affidavit of Glen Matthew Bacic, affirmed on 8 November 2013. He also was not required for cross-examination.

9 The summary of the factual background which follows derives, in substance, from those sources. These contentions will be discussed later in the judgment.

The Award

10 The Award was made with the consent of the parties on 31 July 2009 ((2009) 368 IG (NSW) 884) and commenced operation on 28 May 2009.

11 The application of the Award was expressed, in cl 6, as:

Officers, Departmental temporary employees and Casual employees (as specified in the award) as defined in the Public Sector Employment and Management Act 2002 employed in Departments listed in Schedule 1, Part 1, to the Public Sector Employment and Management Act 2002 [now repealed].

12 Officers were defined in s 107 of the Public Sector Employment and Management Act 2002 (NSW) ('PSEMA 2002') as members of staff of a division of the Government Service, which consisted of those persons who are employed under that Act by the Government of New South Wales in service of the Crown (s 4A). The Government Service also included temporary and casual employees, as authorised by an appropriate Department Head under s 27 and s 38 respectively.

13 The present parties to the Award, as identified in cl 4, are the PSA and the Secretary of the Treasury, who became the nominated employer of the staff of the Public Service in industrial proceedings as a result of the making of the Public Sector Employment and Management (Industrial Relations) Order 2012 ('the Order') under the PSEMA 2002.

14 Until 2012, the employer party was the Director of Public Employment. This was varied (in consequence of the Order) in proceedings for the review of the Award. The resultant award known as the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ('the reviewed Award') was published on 7 December 2012 ((2006) 375 IG (NSW) 86). I will return to the status of the reviewed Award in due course.

15 It may be noted that, although PSEMA 2002 has been subsequently repealed, the Secretary of the Treasury remains the representative employer for the purposes of any proceedings relating to Public Service employees held before a competent tribunal having jurisdiction to deal with industrial matters (see the Government Sector Employment Act 2013 (ss 49 and 50)).

16 It follows that, broadly speaking, the Award established the common employment conditions for persons employed by the Government of New South Wales. The declaration sought by the applicant would have the effect of determining the consultative arrangements between the representatives of those employees and the Government pursuant to the Award.

17 Clause 7 of the Award is entitled 'Statement of Intent'. That provision is plainly intended to have general application in the Award, and is in the following terms:

This award aims to consolidate, in the one document, all common conditions of employment of staff employed in Departments, to encourage the consultative processes at the service-wide and the various organisational levels, to facilitate, as appropriate, greater flexibility in the workplace and to help ensure that the excess hours, accumulated as a result of Departmental work requirements, are not forfeited.

18 The Award is divided into two parts, with Part A prescribing diverse conditions of employment and Part B tabularising allowances under the heading 'Monetary Rates'. Part A is divided into nine sections as follows:

(1) Framework;

(2) Attendance/Hours of Work;

(3) Travel Arrangements;

(4) Allowances and other matters;

(5) Union Consultation, Access and Activities;

(6) Leave;

(7) Training and Professional Development;

(8) Shift Work and Overtime; and

(9) Miscellaneous.

19 The instant clause, cl 65.1, is located within section 5 of Part A - Union Consultation, Access and Activities. This section prescribes which trade union activities are regarded as on duty (cl 53) or as special leave (cl 54), trade union training courses (cl 55), conditions applying to "on loan arrangements" (cl 56), and the requisite period of notice for trade union activities (cl 57). Clause 58 concerns access to facilities by trade union delegates. The section subsequently outlines the responsibilities of a trade union delegate (cl 59), the union itself (cl 60) and workplace management (cl 61), as well as allocating the responsibility for the expenses of a trade union delegate (cl 63). Finally, cl 66 deals with the manner by which an employees' Association membership fees are to be paid.

20 Clause 65, at issue in the present proceedings, is in the following terms:

65. Consultation and Technological Change

65.1 There shall be effective means of consultation, as set out in the Consultative Arrangements Policy and Guidelines document, on matters of mutual interest and concern, both formal and informal, between management and Association.

65.2 The Departmental management shall consult with the Association prior to the introduction of any technological change.

21 Clauses 62 and 64.1, which also appear in section 5, contain terms which are determined by reference to other instruments. These provisions are as follows:

62. Right of Entry Provisions

The right of entry provisions shall be as prescribed under the Occupational Health and Safety Act 2000 and the Industrial Relations Act 1996.

...

64.1 Provisions of the Industrial Relations Act 1996 shall apply to the right of Association members to take lawful industrial action (Note the obligations of the parties under clause 9, Grievance and Dispute Settling Procedures).

22 A number of provisions throughout the Award rely upon the terms of a statute, other instrument or policy in order to establish the terms prescribed by the clause. These provisions are found in cls 12, 21, 23, 41, 70, 79 and 100. Some extracts are provided below:

12.5 Leave

12.5.3 Casual employees will be entitled to Long Service Leave in accordance with the provisions of the Long Service Leave Act 1955.

12.5.4 Casual employees are entitled to unpaid parental leave under Chapter 2, Part 4, Division 1, section 54, Entitlement to Unpaid Parental Leave, in accordance with the Industrial Relations Act 1996. The following provisions shall also apply in addition to those set out in the Industrial Relations Act 1996 (NSW).

21. Flexible Working Hours

21.15 Where a staff member ceases duty in the Department in order to take up employment in another public service or public sector organisation, the same provisions as apply to recreation leave under the Public Sector Staff Mobility policy shall apply to the accrued but untaken or not forfeited flex leave.

23. Non-Compliance

In the event of any persistent failure by a staff member to comply with the hours of duty required to be worked, the Department Head shall investigate such non compliance as soon as it comes to notice and shall take appropriate remedial action according to the Commentary and Guidelines on Conduct and Performance Provisions - Part 7 of the Act.

41. Overseas Travel

Unless the Department Head determines that a staff member shall be paid travelling rates especially determined for the occasion, a staff member required by the Department to travel overseas on official business shall be paid the appropriate overseas travelling allowance rates as specified in the relevant Department of Premier and Cabinet Circular as issued from time to time.

70. Extended Leave

Extended leave shall accrue and shall be granted to staff members in accordance with the provisions of Schedule 3 of the Public Sector Employment and Management Act 2002.

79. Sick Leave

79.6.5 Notwithstanding the provisions of paragraph 79.6.4 of this subclause, sick leave accrued and not taken in the service of a public sector employer may be accessed in terms of the Public Sector Staff Mobility Policy.

100. Anti-Discrimination

100.4 Nothing in this clause is to be taken to affect:

100.4.1 Any conduct or act which is specifically exempted from anti discrimination legislation;

100.4.3 Any act or practice of a body established to propagate religion which is exempted under section 56(d) of the AntiDiscrimination Act 1977;

23 As to the contention that cl 65.1 is aspirational in character, attention should be directed, for purposes of comparison, to the following provisions:

8. Work Environment

8.1 Occupational Health and Safety - The parties to this award are committed to achieving and maintaining accident-free and healthy workplaces in Government organisations covered by this award by:

8.1.1 the development of policies and guidelines for the New South Wales Public Service and, as and when appropriate for individual organisations, on Occupational Health, Safety and Rehabilitation;

8.1.2 assisting to achieve the objectives of the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001 by establishing agreed Occupational Health and Safety consultative arrangementsin Government organisations and or/work premises; to identify and implement safe systems of work, safe work practices, working environments and appropriate risk management strategies; and to determine the level of responsibility within a Government organisation to achieve these objectives;

8.1.3 identifying training strategies for staff members, as appropriate, to assist in the recognition, elimination or control of workplace hazards and the prevention of work related injury and illness;

8.1.4 developing strategies to assist the rehabilitation of injured staff members;

...

100. Anti-Discrimination

100.1 It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.

Provenance of the Award

24 The first award consolidating the conditions of employment in the public service, the Crown Employees (Public Service Conditions of Employment) Award 1997 ('the 1997 Award'), commenced operation on 28 October 1997. It contained the predecessor provision to cl 65.1, cl 68.1 concerning consultation and technological change, which provided:

68.1 There shall be effective means of consultation, as set out in the Consultative Arrangements Policy and Guidelines document, on matters of mutual interest and concern, both formal and informal, between management and the trade unions represented in the department.

25 In the Crown Employees (Public Service Conditions of Employment) Award 2002 ('the 2002 Award'), which commenced operation on 9 December 2002, cl 68.1 was altered by the replacement of 'the trade unions represented in the department' with 'Association'. The relevant provision remained in this form in the Crown Employees (Public Service Conditions of Employment) Award 2006 ('the 2006 Award') as cl 67.1, and in the Award as cl 65.1.

The Reviewed Award

26 On 22 November 2012, the Award was reviewed pursuant to s 19 of the Act. The provisions of cl 65 in the reviewed Award are identical both in number and content to the Award. The various clauses from the award referred to above were similarly unaffected by the review process.

Consultative Arrangements

The History of Consultative Arrangements

27 An agreement between the predecessors to the present parties to discuss the consolidation of the conditions of employment in the public sector was reached in 1995. This agreement arose in the context of negotiating the Crown Employees (Public Sector Salaries August 1995) Consent Award, and ultimately resulted in the making of the 1997 Award.

28 A framework document, outlining the matters to be canvassed in this discussion, was settled between the applicant and the New South Wales Government on 16 August 1995. Under the heading 'Issue: Trade Union Activities and Employee Consultation', the following objective was expressed therein:

To establish clear and up to date provisions on Trade Union activities, training and employee consultation as a basis for a fair and co-operative relationship between Public Sector employers, management and trade unions and to implement those provisions (pg E1).

29 The intended outcomes included 'updated consultative arrangements at the sector level' and 'new improved arrangements for consultation at the organisation level'.

30 Relevantly, the framework document tasked the parties as follows:

4. Development re Sector-wide Consultation.

The parties will develop and update consultative arrangements at the sector level.

5. Development re Organisation Level Consultation

The parties will develop guidelines on consultative arrangements at organisation level, including:

• Dealing with existing arrangements;
• Possible models for the future;
• Information sharing best practice.

6. Implementation

The parties will promote and monitor the implementation of the guidelines at the organisation level (pg E2).

31 To this end, the parties engaged in protracted negotiations, which ultimately resulted in the 1997 Consultative Arrangements. This occurred concurrently with the negotiation of the 1997 Award.

32 During these negotiations, the applicant received correspondence dated 9 February 1996 from Commissioner Ken Cripps of the Public Employment Office. The applicant contended that this letter acknowledged the established intention of both parties, on behalf of the respondent's predecessor, to incorporate the prospective consultative arrangements document into the proposed award. The relevant parts of the correspondence are extracted as follows:

...As requested I am now confirming the verbal response given to Messrs Cahill and Hannan at the meeting of the Task Group on 19 December 1995 in respect of the unions' claim.

The Public Employment Office agrees in principle to the following:-

1. Inclusion of leave and other provisions in respect of a Trade Union Activities and Employee Consultation in a module which will be incorporated into the proposed Conditions of Employment Award;

...

I trust that the parties will continue to confer and reach agreement enabling a consolidated module to be produced on Trade Union Activities and Employee Consultation which will form an important part of the proposed NSW conditions of Employment Award.

33 In February 1997, the PSA received correspondence from Mr C Gellatly, Director-General of the Premier's Department, which included a draft of the consultative arrangements document accompanying a draft of the award. The draft award contained the original form of cl 65.1 (cl 16.1), which was in substantially the same terms as the current cl 65.1. Ultimately, the 1997 Consultative Arrangements were agreed in July 1997, prior to the making of the Award.

34 The title attached to the 1997 Consultative Arrangements derives from two sources. First, a circular to Chief Executives issued by Mr Gellatly on 29 August 1997. That document had the reference "Circular No. 97-53" appearing at the head of the document which was otherwise entitled "Consultative Arrangements: Policy and Guidelines". Secondly, those Arrangements were published on the same day in an 'on-line' form via the 1997 Circular which bore the heading "C 1997-53 Consultative Arrangements: Policy and Guidelines".

35 It is clear that the negotiations which resulted in the 1997 Consultative Arrangements occurred concurrently and in conjunction with the negotiations that produced the 1997 Award.

36 The applicant sought to rely upon later correspondence from Mr Gellatly, dated 30 January 1998, to indicate the understanding that the parties had of the Award, particularly cl 65.1, proximately to its commencement. The letter relevantly stated the following:

It is considered that the Crown Employees (Public Service Conditions of Employment 1997) Award [sic] already includes comprehensive consultative arrangements to be applied in the New South Wales public service on all employee relations matters including technological change.

37 Given the principles of award interpretation, to which I will later return, it is not appropriate to have regard to such extrinsic materials as evidence of the parties' subjective intentions, let alone those expressed subsequent to the drafting of the Award.

38 In February 2012, the respondent provided the applicant, and other unions, with a draft of a new and amended version of the 1997 Consultative Arrangements entitled 'Consultative Arrangements: Policy and Guidelines'. Upon receipt of this revised policy, the PSA communicated to the respondent that it did not accept the changes and regarded the respondent as legally obligated to follow the procedures for consultation in the 1997 Consultative Arrangements. The respondent rejected the applicant's position and, on 25 June 2012, published the 2012 Consultative Arrangements without the agreement of the PSA, by way of the 2012 Circular. This instrument was expressed to supersede the 1997 Consultative Arrangements.

39 It will be recalled that the Award was reviewed after the 2012 Consultative Arrangements were published.

40 Both parties advanced broad submissions as to whether the 2012 Consultative Arrangements had, in substance, altered the terms of the 1997 Consultative Arrangements in a manner detrimental to the PSA.

41 The respondent correctly submitted that "there is no evidence of any change in the actual means of consultation after the introduction of the 2012 Policy to that which applied before that time (in respect of consultative arrangements between management and the PSA insofar as coverage under the COE Award 2009 and the COE Revised Award 2009 was concerned)". If the reference to the "actual means of consultation" is a reference to the manner in which the parties actively engaged in consultation after the introduction of the 2012 Consultative Arrangements, then this submission is, on the evidence, correct. The experience of the parties in a practical or operational sense does not seem to have differed from those practiced under the 1997 Consultative Arrangements. However, it does not follow, as I will discuss below, that the terms of the 2012 Consultative Arrangements did not materially alter the "means of consultation" (to borrow the words of cl 65.1) specified in the 1997 Consultative Arrangements and were, thereby, and to that extent, permissive of different Consultative Arrangements to those previously agreed between the parties to the 1997 Consultative Arrangements.

The Content of the 1997 Circular

42 The 1997 Circular was issued by Mr Gellatly. In this Circular, he noted that the parties to the document:

...all share a commitment to the development of strong consultative arrangements... [This] reflects the belief of the parties that employees should have the opportunity to influence their work and their environment.

43 The Director-General stated that the document had:

...been developed in order to assist public service organisations to integrate consultative practices into their efforts to achieve productive reform in the workplace.

44 He concluded by saying:

Organisations are required to review their current consultative arrangements and to implement the policy and procedures that are outlined in the Consultative Arrangements: Policy and Guidelines.

The Terms of the 1997 Consultative Arrangements

45 The 1997 Consultative Arrangements begins with a foreword published under the names of Mr Gellatly, Ms Janet Good, the General Secretary of the Public Service Association of NSW, and Ms Gail Gregory, Industrial Officer of the Labor Council of New South Wales. As the foreword is important to the disposition of the matter, it is extracted in full below:

The development of this Consultative Arrangements policy and guidelines document marks the commitment of the NSW Government, in partnership with the Public Service Association, to improving and strengthening the practices of communication, participation and consultation across the NSW public service.

This document is a result of discussions between the parties to the Framework attached to the Crown Employees (Public Sector Salaries August 1995) Consent Award. It presents a structure for the development of a fair and cooperative relationship between management, employees and unions at the organisation level. Such a structure is more likely to contribute to improved productivity, efficiency and effectiveness of public service organisations.

The contents of this document are consistent with the provisions for consultation and participation in the NSW Industrial Relations Act 1996 and the shared belief of the parties that employees should have the opportunity to influence their work and their work environment.

Communication, participation and consultation are critical to fostering the motivation and commitment of employees towards organisational goals which are in the mutual interest of management, employees and unions. Equally, strengthening the cooperative and consultative approach to organisational relationships between managers, employees and the unions is fundamental to implementing productive reforms in public service organisations.

This policy and guidelines document is commended to all organisations. Organisations should review current arrangements and implement the step-by-step guidelines, as outlined, for achieving cooperative and effective consultative arrangements.

46 It will be evident from the foreword (and other provisions of the Arrangements discussed below) that the parties to the 1997 Consultative Arrangements envisaged the continuance of sector-wide consultation (in a manner specified in those Arrangements) and new mechanisms (or structures) for organisational level consultation (presumably reflective of the trend at the time towards enterprise bargaining in industrial relations).

47 The balance of the 1997 Consultative Arrangements was divided into three primary sections, namely 'Policy', 'Guidelines' and a 'Step-by-Step Guide for Establishing Effective Consultative Arrangements at the Organisational Level', as outlined below. References and contact information were also provided in the 1997 Consultative Arrangements, under the heading 'Further Information and Assistance'. Additionally, the 1997 Consultative Arrangements contained 'Appendix A', referred to under 'Policy', which prescribed the arrangements for consultation at the sector-wide level.

Policy

48 Beneath this heading, there appears a section bearing the sub-heading 'Policy Statement', which was in the following terms:

The NSW Government and the Public Service Association of NSW share an understanding that communication, information sharing and consultation between management, employees and unions is critical to the development of a strong, vibrant, effective, equitable and efficient NSW public service. It is recognised that to achieve these objectives all public service organisations need to have effective channels of communication and consultative arrangements in place.

This agreed policy and guidelines statement sets out the procedures for genuine and ongoing commitment to consultation, effective communication and the facilitation of productive outcomes.

In a large number of NSW public service organisations, the effectiveness of a cooperative and participative approach has been demonstrated. Substantial improvements have been made in areas such as restructuring, training and development, occupational health and safety, workplace reform, performance acknowledgment, new work arrangements, the introduction of technology and the implementation of flexible work practices. However, scope exists for the wider application of consultative arrangements.

49 The purpose of the 1997 Consultative Arrangements was expressed in this section in the following manner:

The purpose of this document is to bring about fair and cooperative relations at the organisation level. It is also intended that these guidelines will provide the foundations for strengthening participation in implementing productive reforms in organisations.

50 The definition of consultation was in the following terms:

...an effective mechanism for management and employees, through their union, to meet on a regular basis in order to discuss and determine matters of common interest.

51 The 1997 Consultative Arrangements stated that consultation "occurs at both the sector-wide level and the organisational level" and then referred to each in turn.

52 As to sector-wide consultation, the policy declares that the Premier's Department/Public Employment Officer, the Labour Council of New South Wales and public sector unions will "continue their key role in promoting a cooperative approach between the parties and achieving a comprehensive and cohesive response on issues of broad concern that have an impact across the sector". The policy specified that the "sector-wide arrangements in place are included at Appendix A". The applicant contended that these arrangements constituted "specific and prescriptive requirements".

53 The objectives of the forum were stated in Appendix A as follows:

...to improve the quality of consultation between the parties on issues relating to the NSW public sector and provide the appropriate mechanism for discussion of key issues on policy and strategy prior to changes being implemented.

54 The forum was intended to act as:

...a formal mechanism for information exchange, discussion of current issues in the NSW public sector and the implementation of aspects of government policy or referring discussion of matters of concern.

55 In accordance with these goals, the forum "meets" on a monthly basis, with attendance including the following members:

(1) The Director-General of the Premier's Department or nominee;

(2) The Director of Employee Relations of the Premier's Department or nominee;

(3) The Labor Council officer with responsibility for the public sector;

(4) Officers of the following unions:

(a) Public Service Association of NSW;

(b) NSW Police Association;

(c) Australian Services Union;

(d) Health and Research Employees Association;

(e) NSW Fire Brigade Employees' Union;

(f) NSW Teachers' Federation;

(g) NSW Nurses' Association;

(h) Australian Workers' Union/Federation of Industrial Manufacturing Employees;

(i) Construction, Forestry, Mining and Energy Union;

(j) Media, Entertainment and Arts Alliance;

(k) Association of Professional Engineers Scientists and Managers, Australia;

(l) Australian Salaried Medical Officers' Federation -NSW; and

(m) Other unions as appropriate given the nature of the business before the forum.

56 Finally, it was noted in Appendix A that:

These consultative arrangements are not to operate to the exclusion of mechanisms which a union might establish to further the day-to-day business of the union or for the benefit of its members.

57 It might be noted that under the part of arrangements concerning Guidelines, there was a provision relating to issues which may be the subject of consultation. This provided:

Issues that may be discussed by consultative committees should be determined by agreement, in accordance with any agreed sector-wide framework.

58 Returning to the 'Policy' section of the 1997 Consultative Arrangements, the following was stated as to consultation at the organisational level:

It is agreed that there is no one approach to consultation that can be applied to all organisations. Specific arrangements should be determined jointly by management and the relevant union(s). It is necessary that the parties in the organisation agree on an effective approach to issues and on matters that may be subject to consultation

59 The respondent contended that the emphasis on determining arrangements at the local level reflected the aspirational, rather than prescriptive, nature of the document.

60 The 1997 Consultative Arrangements thereafter outlined research espousing the merits of consultation, concluding that the benefits of implementing the policy were enhanced organisational decision making, resolution of problems at an earlier stage, improved communication and the more effective implementation of organisational change.

61 Beneath the sub-heading 'Policy Principles', the document included a list of principles described as:

...basic principles that organisations need to consider when setting up effective consultative arrangements or strengthening existing arrangements.

62 These principles appeared as follows:

▪ Communication, information sharing, consultation and negotiation are the key to developing cooperation and a spirit of trust between management, employees and unions.

▪ Joint understanding and common objectives are essential elements of effective consultative arrangements.

▪ The relevant union(s) is recognised as the legitimate representative of employees and the channel for negotiation.

▪ Provision to the union and its representatives of relevant and appropriate information is necessary to enable them to make informed contributions to Issues.

▪ Consultation and participation are dynamic processes. Organisational change, restructuring and reform require parties at the organisational level to accept the need for a long term perspective and commitment.

▪ The provision of a formal framework is essential to ensure that employees can effectively participate in and contribute to the decision making process.

▪ Wherever possible the suggested consultative arrangements should be discussed and agreed to by management and unions following consideration of the local needs and priorities of the organisation and its clients.

▪ While recognising that consultative arrangements do not necessarily eliminate organisational conflict, the development of a consultative and cooperative approach to issues should reduce the level of potential conflict.

▪ Consultation should not be regarded as a panacea. Its effectiveness depends on all parties working together to achieve common aims and objectives.

63 It was highlighted by the applicant that these principles presupposed a "significant role" for the trade union party in consultation.

Guidelines

64 The 'Guidelines' section of the 1997 Consultative Arrangements began by outlining the differences between consultation, information sharing and negotiation, and explaining its relationship to enterprise bargaining.

65 As to the issues that may be subject to consultation, it was stated that matters to be discussed by consultative committees should be determined by agreement, in accordance with any sector-wide framework. The 1997 Consultative Arrangements provided an extensive list of examples, yet stated that:

This list is not exhaustive but can be used as a starting point for the parties to reach agreement on which items will be the subject of consultation at the organisation.

66 Under the sub-heading 'The Role of the Parties', the document stated the following:

The achievement of trust, participation, and cooperation between management and unions is recognised as essential in facilitating improvements in productivity and performance.

67 It outlined the specific role of each participant as follows:

Management and employees

Employees who are both informed and given the opportunity to participate in decision making that directly affects them are more likely to achieve a higher level of satisfaction, and are more likely to identify and contribute to the success of the organisation.

It is also recognised that although the primary responsibility of management is to take decisions to achieve the objectives of the organisation, the effectiveness and implementation of such decisions will be significantly enhanced by the involvement of employees.

Management has the right and the responsibility to advise and inform employees on any issue which directly or indirectly affects their employment or working conditions. Management should ensure that regular staff meetings are held in order that communication on such issues is clear and staff input invited.

To achieve an effective communication system and ensure consultative arrangements are in place, management should review their current processes of involvement and consultation so that they:

▪ enable employees to utilise their skills, knowledge and abilities in contributing to the corporate objectives of the organisation;

▪ build a relationship of information sharing and mutual trust; and

▪ provide all employees with the opportunity to influence decisions that affect their work and quality of life.

Cooperation and participation by employees will be dependent on management demonstrating their commitment to improving these relationships. Management's commitment to the development of a cooperative and participative approach must be clear, visible and continuous in all practices.

Unions

The success of consultative arrangements necessitates the recognition of unions and their relationship with their members.

For formal consultation the legitimate representative of employees is the relevant union(s). Whilst union membership is voluntary, all employees should consider whether they wish to exercise their right of input into the formal consultative process and of representation in the process through union membership and participation in union activities.

Delegates at the organisation level are recognised representatives of the employees under the NSW Industrial Relations Act 1996. In addition, union delegates can contribute to effective communication within the organisation.

Unions give expert advice, the benefits of experience, different perspectives and practical assistance to the organisation and by doing so contribute to its success.

68 The PSA correctly submitted that the 1997 Consultative Arrangements contemplated the PSA (and other trade unions) consulting with management under the Arrangements (and no other representatives or employees). This was evidenced from the following provisions of the Arrangements (in each case the reference to a paragraph number is a reference to a paragraph of this judgment):

• The definition of consultation [50];
• Policy principles [62];
• The reference to unions in the specified roles for the parties [67];
• The 'General' section of the 'Step-by-Step Guide' [77]; and
• Appendix A [53] to [56].

69 The 1997 Consultative Arrangements provided that facilities would be provided to unions and their officers. The Arrangements stated, as follows:

...in recognising that unions are the legitimate representatives of employees, the NSW government assists unions in the workplace by providing appropriate support facilities for authorised union activities.

70 These facilities covered matters such as communication tools, conference or meeting space and reasonable preparation time before meetings.

71 With reference to the establishment of effective consultative arrangements in practice, the importance of management and unions jointly planning the operation of the consultative arrangements was emphasised. However, the guidelines noted that:

Each organisation is best equipped to determine the form of consultation that is best for it.

72 As to implementation at the organisational level, the document expressed as follows:

...all organisations should review, strengthen or establish effective consultative arrangements through a cooperative and participative approach to dealing with workplace issues and changes.

Strengthening existing practices of communication, information sharing and involvement of employees provide the foundation for effective cooperation. This includes allowing time for consultation prior to any changes being introduced into the workplace.

The step-by-step guidelines for establishing effective consultative arrangements provide a practical guide to the conduct of cooperative and productive industrial relations at the organisation level.

73 As such, management, employees and union representatives "should be encouraged to understand and apply these guidelines" to ensure that there is a 'fair and cooperative relationship between the parties'.

Step-by-Step Guide for Establishing Effective Consultative Arrangements at the Organisational Level

74 The final section of the 1997 Consultative Arrangements contained what was described as a "practical step-by-step approach" for the parties to establish effective consultative arrangements for the conduct of cooperative and productive industrial relations at the organisational level. It was "recommended" that the organisations follow these steps, and set out their consultative arrangements in a formal document which would include the following:

(1) A preamble, which states the parties' commitment to strengthening consultation in the workplace;

(2) A framework of agreed purpose and objectives; and

(3) The Consultative Arrangements, as determined by the parties with reference to the recommendations and considerations provided in the document.

75 As to the Consultative Arrangements, this section listed 13 matters that should be given consideration in the development of the formal arrangements. These matters are as follows:

(1) General;

(2) Frequency of meetings;

(3) Composition;

(4) Conduct of meetings;

(5) Use of sub-committees;

(6) Confidentiality of meetings;

(7) Recommendations made or agreements reached by the committee;

(8) Matters for consultation;

(9) Future meetings;

(10) Training of committee members;

(11) Reporting arrangements;

(12) Consultation outcomes; and

(13) Review of Consultative Arrangements.

76 Finally, under the heading 'Review of Consultative Arrangements', it is stated that a review of the wording of the Consultative Arrangements should occur "where there are any changes to any sector-wide framework".

77 The first matter, which bears the title 'General', is in the following terms:

An ongoing formal consultative arrangement should be established, for example, between the Departmental Head and his or her nominees and the General Secretary of the union(s) and his or her representatives.

78 The respondent contended that these guidelines, including the 13 matters particularised above, were of an aspirational character and merely provided a flexible "framework" for "agencies to seek to advance the commitment of the parties, that there be effective means of consultation". The applicant, on the other hand, contended that the 1997 Consultative Arrangements prescribed "minimum principles" or "standards" to be complied with for effective consultation at the organisational level, as well as the prescriptive requirements at the sector-wide level, which created legal rights and obligations that were non-existent in the 2012 Consultative Arrangements. I will return to those issues.

The 2012 Circular

79 In the 2012 Circular, within which the revised version of the 1997 Consultative Arrangements was published, the Director-General of the Premier's Department, Mr C Eccles, described the newly published policy and guidelines as providing general guidance regarding Consultative Arrangements. He noted, at the outset, that the document set out the principles of consultation to be reflected in each agency's Consultative Arrangements and the roles participants were to accept when they engaged in consultation. However, he emphasised that each agency was best equipped to determine the form of consultation that was effective for its own operations.

80 The Director-General stated that the Government remained committed to:

...consulting with employees and their representatives, including unions, at both the agency and the sector-wide level in relation to proposed major changes in the workplace that are likely to have a significant effect on employees.

The 2012 Consultative Arrangements

81 Although the 2012 Consultative Arrangements were also entitled 'Policy and Guidelines', the applicant contended that this document provided "guidance" rather than "guidelines" and was, therefore, of a different character to the 1997 instrument.

82 Unlike the previous emanation, the 2012 Consultative Arrangements were not divided into three sections entitled 'Policy', 'Guidelines' and 'A Step-by-Step Guide for Establishing Effective Consultative Arrangements at the Organisational Level'. Further, it did not include procedural arrangements at the sector-wide level (as in Appendix A of the 1997 Consultative Arrangements).

83 The document consisted of a broad policy statement and a "Framework", which established "how an agency may go about implementing the policy".

84 It is useful to set out the 'Policy' section in full, as follows:

The NSW public sector delivers value and service to the people of New South Wales. The Government recognises that in changing and adapting to the needs of the state its employees' knowledge and skills are an important contributor to those processes.

It is the primary responsibility of management to make decisions in order to achieve the objective of the agency; however, communication, information sharing and consultation between management, employees and their representatives on workplace matters are critical to the development of a strong, responsive, equitable and efficient NSW public sector. The Government is committed to consulting with employees and their representatives, including unions, at both the agency and the sector-wide level, in relation to proposed major changes in the workplace that are likely to have a significant effect on employees

To achieve these objectives, all public sector agencies must have consultative arrangements in place.

Each agency is best equipped to determine the form of consultation that is effective for its operations. In determining the appropriate consultative process, an agency should take into account the interests of management, employees, employee representatives, its operating environment, and service to its customers.

85 The balance of the document, described as the "Framework", was divided into sections bearing the following headings:

(1) Purpose;

(2) Principles and Merits of Consultation;

(3) Establishing and Maintaining Effective Consultation;

(4) The Role of the Participants;

(5) Issues to Consider for Consultation;

(6) Legislation; and

(7) Other Policies and Guidelines.

86 For present purposes, it is unnecessary to deal with 'Legislation' and 'Other Policies and Guidelines' in detail. However, I propose to extract some core components of the remainder of the document:

(1) The purpose of the 2012 Consultative Arrangements was expressed in the following manner:

1.1. The NSW Public Sector Workforce Consultative Arrangements Policy 2012 (the Policy) provides general guidance for agency reference when developing and implementing arrangements for consulting with their employees and employee representatives in relation to workplace matters.

The Policy sets out the principles and merits of consultation and the roles participants accept when they are involved in consultation.

This Policy supersedes the Consultative Arrangements: Policy and Guidelines (1997)

1.2. The Policy uses the term 'employee representative' as a general description for the different and accepted formal lines of communication on behalf of employees. This includes the customary representation by union officials and delegates, as well as nominated non-union employee representatives in appropriate circumstances.

1.3. The Policy is not intended to reiterate or replace obligations under legislation or industrial instruments; rather, it is a general guide to agencies for determining how consultation arrangements may be established.

(2) The relevant extracts of the 'Principles and Merits of Consultation' section are as follows:

2.1. Consultation is a process that provides an opportunity for people to express their views, state objections, exchange information, and promote understanding.

2.2. Consultation provides a genuine opportunity for people directly affected by proposed changes in the workplace, and the wider workforce, to influence the matters under discussion. Consultation should never be treated as a mere formality.

2.3. Communication, information sharing, and consultation are key to developing cooperation and a spirit of trust between management and employees and employee representatives.

...

2.5. Consultation does not require agreement and does not abrogate the right of the agency to make the final decision on matters discussed through the consultative process.

...

2.7. Employee representatives are recognised as legitimate representatives of employees and are an important means of communication between management and employees through which employee views may be promoted.

(3) As to 'Establishing and Maintaining Effective Consultation', it was noted that:

3.1. Joint understanding of the agency consultative arrangements and the parties' common objectives permits participants to focus on effective communication rather than process.

(4) Further, in the establishment or maintenance of consultative arrangements it was recommended that the following factors should be considered:

3.2.3. Establishing a formal arrangement for participation by employee representatives enables them to make a meaningful contribution, and ensures an informed decision making process. However, the existence of a formal consultative arrangement should not replace day-to-day consultation and information sharing between managers and employees in the workplace.

3.2.4. A consultative and cooperative approach is an important factor in reducing the potential for conflict. A formal arrangement should include decision makers being available at appropriate times.

3.2.5. Consultation is a dynamic process and to achieve the best results when considering organisational change, restructuring, and reform - whether in the agency or more broadly across the public sector - often requires a long term view.

3.2.6. An agency's consultative arrangements should take into account the needs and priorities of the agency, employees, the organisational structure, and the services provided to the customer.

3.2.7. An agency's processes for consultation on local matters between an agency and its employees, including any dispute resolution procedure contained in an award or agreement, should always be the first step to facilitating a resolution on matters of concern.

(5) The 2012 Consultative Arrangements broadly described the roles of the participants as follows:

4.1. Agencies and employee representatives participating in consultative arrangements must understand and acknowledge each other's rights and obligations, including those arising from the relevant legislation and industrial instruments.

4.2. Agencies and employee representatives must genuinely participate in the consultative process and commit to upholding an environment of mutual respect and professional behaviour.

4.3. Following consideration of the local needs and priorities of the organisation and its clients, proposed consultative arrangements should be discussed and wherever possible, agreement reached between agency and employee representatives.

(6) Specifically, it outlined the roles of management, employees and employee representatives as follows:

Management

4.4. It is the primary responsibility of management to make decisions in order to achieve the objectives of the agency. However, the effective implementation of such decisions may be significantly enhanced through a process of canvassing issues of common interest between management, employees, and employee representatives.

4.5. Management should ensure: 4.5.1. the timely provision of relevant information, including:

details of a proposed change

the likely impact on employees

the reasons for the proposed change, and

a proposed implementation schedule (where relevant)

4.5.2 that there is discussion on possible measures for mitigating or averting any adverse effects on employees

4.5.3 the provision of appropriate and reasonable resources, including work time and communication facilities, for employee representatives to fully participate in the consultative arrangements

4.5.4 that genuine consideration is given to the ideas and contributions of employee representatives and that the agency provides to employee representatives the agency's response to their submissions

4.5.5 where the agency makes a final decision in relation to the matter which is the subject of consultation, the agency should notify the affected employees and at the employees' election, their representatives.

Employees

4.6. Employees should ensure: 4.6.1. that, in the first instance, they consult with their local management about any local causes of concern or grievance, and

4.6.2. that ideas for improving the workplace or systems of work are discussed with their managers, or where it may affect the organisation generally, submit ideas through their employee representatives.

Employee representatives

4.7. Employee representatives should ensure that they: 4.7.1. contribute to effective communication within the agency through genuine participation in the consultative arrangements

4.7.2. establish good local relations to facilitate resolution of employee concerns as close to the source of the issue as possible, and

4.7.3. use the consultative arrangements to present employee's input and seek the settlement of any concerns (not individual grievances).

(7) Under the heading 'Issues to Consider for Consultation', the 2012 Consultative Arrangements confined the matters that may be considered as follows:

5.1. Issues that may be considered for discussion through the consultative arrangements should either have a direct and significant effect on the workforce, or a large part of the workforce, or have a major impact on the agency in the short or long term. Examples include:

· Machinery of government changes

· Enterprise bargaining

· Workplace reform

· Restructuring and redevelopment

· Establishing a commercial focus to the organisation or parts of the organisation

· Changing work practices to create a more flexible workforce

· Staff turnover and absenteeism

· Improving performance and quality issues

· Introducing new classification(s)/classification scale(s)

· Introduction of new technology or electronic systems

· Government reforms and sector-wide policies

· Agency reforms

· Legislative changes

5.2. The examples list is proposed for discussion and is not all-inclusive or compulsory, remembering, that local issues should be addressed at the local level.

5.3. Matters to be considered for inclusion in consultative arrangements should be agreed between the agency and its employee representatives.

Submissions

87 Mr M Gibian, counsel for the applicant, made oral and written submissions which, when taken together, are summarised as follows:

(1) As an industrial organisation registered under the Act, the applicant had constitutional coverage of employees of the Crown in right of the State of New South Wales, including those covered by the relevant Award.

(2) The Court has jurisdiction under s 154 of the Act to make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. It may do so without regard to whether or not any consequential relief is, or could be, claimed. A declaration in relation to the interpretation of an award of the Commission is plainly such a matter. Accordingly, the Court has jurisdiction to make the declaration sought in these proceedings.

(3) On its proper construction, cl 65.1 of the Award incorporated the 1997 Consultative Arrangements, such that the respondent was required by that clause of the Award to apply the terms of the 1997 Consultative Arrangements and they were not permitted to disregard the terms of that document and unilaterally adopt a new policy.

(4) By issuing a new consultative arrangements document, the 2012 Consultative Arrangements, and consequently failing to implement the 1997 Consultative Arrangements, the respondent has contravened cl 65.1 of the Award.

(5) The PSA advanced a number of considerations to support its preferred construction, as follows:

(a) Text of the Provision:

The clause, on its face, evinces an intention to prescribe an effective and enforceable mechanism for consultation by requiring compliance with the 1997 Consultative Arrangements. The document is specifically identified in that clause, as "the Consultative Arrangements Policy and Guidelines document", since it was the only such document in existence at the time of the making of the Award. Further, the text 'on matters of mutual interest and concern' should be read as a reference to the subject matter of the 1997 Consultative Arrangements, not so as to constrain the parameters of consultation itself.

(b) Consequences of Alternative Construction:

An alternative construction, as contended by the respondent, would make the clause ineffective as it would enable the Government to unilaterally alter the policy at its whim and, by so doing, alter its substantive obligations to consult for the purposes of the Award.

Such an interpretation, which permits the respondent to determine its own obligations to engage in consultation under the Award, is constitutive of an absurdity, since awards are intended to impose enforceable obligations binding on parties (City of Wanneroo v Holmes (1989) 30 IR 362 at 380).

(c) History and Context

As the publication of the 1997 Consultative Arrangements was a consequence of an extensive process of negotiation between the parties, conducted contemporaneously with negotiating the first Award, the history, context, and surrounding circumstances are demonstrative of an intention by the parties to incorporate the document into the Award in such a manner as to make it legally enforceable.

(d) Beneficial Construction

The relevant clause in this matter deals with consultation, which is an important mechanism for ensuring that employees, through their representatives, have the opportunity to influence decisions that may affect their interests and rights. Such a provision should be construed "so as to give the fullest relief which the fair meaning of its language will allow": Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384; IW v The City of Perth (1997) 191 CLR 1 at 11.

Further, with reference to the Statement of Intent in cl 7 of the Award, cl 65 should be interpreted consistently with encouraging effective consultation, lest it subvert the intention of the clause by enabling the respondent to alter consultative policy as it saw fit.

(6) More broadly, an award should be interpreted initially in line with the plain meaning of the words (Bryce v Apperley (1998) 82 IR 448 at 452 and Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks Union of Australia (NSW Branch) [2001] NSWIRComm 141; (2001) 106 IR 217 at [67] ('Kingmill')), an understanding of which may be assisted by their context and purpose (George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; Kingmill at [67] and Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] and [96] ('Amcor')). It is rarely appropriate to take an overly strict or literal approach and, in fact, there is a tradition of adopting a generous construction where industrial awards are concerned (George A Bond & Co Ltd (in liq) v McKenzie at 503 to 550; Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159; (2002) 122 IR 13 at [22] to [24]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) FCA 813; (2006) 153 IR 426 at [57] ('City of Wanneroo') and Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70; (2007) 161 IR 96 at [44]).

(7) Whilst accepting that declaratory relief is discretionary in nature, per Hollingsworth v Commissioner of Police, NSW Police Service [2005] NSWIRComm 279; (2005) 146 IR 285 at 106, the consideration whether to exercise the discretion should be governed by whether there is a real question and a proper contradictor. The traditional approaches for denying relief are not applicable to this matter, as the essence of the dispute concerns the ongoing rights and obligations of the parties under the Award.

88 Mr S Benson of counsel, who appeared on behalf of the respondent, made oral and written submissions which, when taken together, are summarised as follows:

(1) The reference to the "document" in cl 65.1 denotes a generic policy document issued by the respondent, which, consistent with the issuing of policies generally, may be revised and reissued, with modifications, from time to time. If cl 65.1 was intended to refer to the 1997 Consultative Arrangements specifically, the provision would have described the document with particularity, or annexed it to the Award, in order to ensure that it was identified with sufficient clarity.

(2) In the alternative, if cl 65.1 did incorporate the 1997 Consultative Arrangements, as contended by the PSA, or an ambulatory document of that nature, the respondent submitted that the provision nevertheless failed to set the "conditions of employment", as required by s 10 of the Act. In making an award provision that incorporated such a document, the Commission effected an ultra vires delegation of the determination of the "effective means of consultation" to the parties through their implementation of the consultative arrangements. This exceeded the theoretical limits of the Commission's power under s 10, because the Commission cannot, even with the consent of the parties, delegate its award-making function (see Ridge v Lyon [1910] AR (NSW) 427 at 428; In Re Textile Workers Union [1913] AR 179; Re Maritime Services Board (Cargo Handling Operators) Award [1960] AR (NSW) 434 and Re University of New South Wales (Conditions of Employment) Award [1960] AR 631 at 656). This construction would thereby make the provision invalid, and preclude the grant of the declaratory order sought by the applicant.

(3) Whether or not cl 65.1 was construed to incorporate the 1997 Consultative Arrangements, the provision was of an aspirational character, and did not confer legal rights and obligations upon the parties. As the 1997 Consultative Arrangements did not define the "effective means of consultation" or provide a specific mechanism, certain in its operative effect, with which to enforce the terms of consultation, even if such a document was incorporated into the provision, the clause would not impose any enforceable rights or obligations on the parties.

(4) Considering these arguments, there was no legal right as asserted by the applicant, and, accordingly, there was no legally enforceable right upon which to grant a declaration of right pursuant to s 154 of the Act.

(5) Without conceding that there was a legally enforceable right, the respondent submitted that three factors weighed heavily against the exercise of a discretion to make the declaratory order sought:

(a) The PSA appeared to acquiesce to the respondent's understanding of the operative effect of cl 65.1 of the Award as it took no action to press its contrary contention between 16 October 2012 (i.e. the date of Mr Bacic's letter to the PSA) and 11 September 2013 when it commenced the present proceedings without prior notice (i.e. a period of almost eleven months).

(b) The PSA did not, in the review of the Award in late 2012, seek to have the Commission take into account any issue relating to the understanding of the consultation provision (for example, as contemplated by s 19(3)(f) of the Act).

(c) The PSA did not engage the grievance procedure under the Award nor the dispute resolution mechanisms available under the Act before commencing the present legal proceedings.

(6) In elaboration of those submissions, the respondent alluded to the absence of objection being raised by the PSA in the Joint Consultative Forum and the absence of the PSA taking the opportunity to raise particular issues using the "normal mechanisms" for dispute resolution. The provision in question was aspirational in that it was designed to encourage communications between parties and, in particular, the devolution of that process to a local level. The provision merely erected guidelines. The PSA application actually sought a declaration as to a "state of affairs".

89 Considering the respondent's submission as to a possible ultra vires delegation of award-making power, the Commission posed to the respondent a question as to whether this constituted a 'collateral attack' upon cl 65.1 (as a defence to the application for a declaration) and whether such a challenge was permissible in proceedings of this character. This resulted in the parties making supplementary submissions.

90 The PSA's submissions as to this issue can be summarised as follows:

(1) The contention of the respondent that the PSA's preferred construction of cl 65 would be ultra vires misunderstands the construction that the applicant proposes.

(2) Incorporating another document into an award provision is a valid and conventional way of effecting the Commission's award-making power. It involves no delegation if, as the applicant contends, it refers to and requires the establishment of consultative arrangements in accordance with a specific identified document, such as the 1997 Consultative Arrangements. The authorities referred to in the respondent's submission, outlined above, addressed circumstances in which conditions were set with regard to an unknown or undetermined source.

(3) In fact, such a difficulty may arise from the incorporation of another document into an award if the instrument permitted that document to be modified without recourse to the Commission, as the respondent submits cl 65.1 allows.

(4) Raising this issue constituted a 'collateral attack' on the validity of an award provision, which is impermissible pursuant to s 179 of the Act (Tempo Services Ltd v Strezouski [2005] NSWIRComm 329; (2005) 146 IR 411 at [44] to [57]).

91 In reply, the respondent contended that, due to Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, which held that s 179 precluded the grant of orders in the nature of certiorari for error of law on the face of the record but not for jurisdictional error, a decision of the Commission affected by jurisdictional error was not protected from challenge by s 179.

92 While the High Court did not directly address the question of a 'collateral attack' in Kirk v Industrial Court of New South Wales, the Court found that the term 'decision' under s 179 should not be construed to include a decision of the Commission that exceeded the limits of its power, which remained reviewable. Accordingly, the respondent argued that a decision of the Commission was not 'final' pursuant to s 179 if it was affected by jurisdictional error.

93 Therefore, the operation of s 179 did not prevent the respondent from questioning the validity of cl 65.1. If the PSA's construction of cl 65.1 did place the clause beyond the theoretical limit of the Commission's functions and powers, as contended, it would not be protected from challenge, or 'collateral attack', by the privative provision contained in s 179 (see Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318; (2012) 219 IR 67 at [68] ('Brown')).

94 As to that question, the applicant contended that, since the High Court in Kirk v Industrial Court of New South Wales was considering the operation of s 179 to the extent that it may preclude review by the Supreme Court, the decision was referable only to those circumstances. The decision, therefore, did not lead to the consequence that, aside from on judicial review to the Supreme Court, an award of the Commission is able to be reviewed, quashed or called into question by any court or tribunal. As such, in the present proceedings a determination that cl 65.1 was invalid is not available as a defence to the issuing of a declaration.

The Act

95 The provision of s 154 shall be considered later in this judgment.

96 Some other provisions of the Act will also be relevant.

97 The objects of the Act appear in s 3 in the following terms:

(a) to provide a framework for the conduct of industrial relations that is fair and just,

(b) to promote efficiency and productivity in the economy of the State,

(c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level,

(d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,

(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

(f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value,

(g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality,

(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

98 By s 10, the Commission is empowered to make awards. The provision is expressed as follows:

The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.

99 The Commission is also able to effect the variation or rescission of an award under s 17, as follows:

(1) The Commission may vary or rescind an award.

(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.

(3) An award may be varied or rescinded in any of the following circumstances only:

(a) at any time with the mutual consent of all the parties to the making of the original award,

(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),

(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,

(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.

(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

100 In terms of the contentions developed with respect to the 2012 reviewed Award, reference should be made to s 19, which provides:

(1) The Commission is required to review each award before September 2001 and subsequently at least once in every 3 years.

(2) The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards.

(3) The Commission must take account of the following matters in the review of awards:

(a) any decision of the Commission under Part 3 or any other test case decision of the Commission,

(b) rates of remuneration and other minimum conditions of employment,

(c) part-time work, casual work and job-sharing arrangements,

(d) dispute resolution procedures,

(e) any issue of discrimination under the awards, including pay equity,

(f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards,

(g) any other matter relating to the objects of the Act that the Commission determines.

(4) The Commission must also take account of the effect of the awards on productivity and efficiency in the industry concerned.

(5) During a review of awards, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed.

(6) The Commission is to make such changes to awards as it considers necessary as a result of a review.

Principles of the Interpretation of Awards

101 It is worthwhile revisiting the principles applicable to the interpretation of awards, as this matter represents a relatively isolated instance of the interpretation of an award arising in declaratory proceedings before this Court.

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) vMcKenzie [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.

109 Section 33 provides as follows:

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object (emphasis added).

110 Section 5(2) of the Interpretation Act provides "[t]his Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned" and s 5(6) states "[t]he provisions of sections 24, 28, 29, 30, 30B, 33, 42, 43, 69A, 75 and 80 that apply to a statutory rule also apply to an environmental planning instrument".

111 In my view, s 33 (and s 5(6)) of the Interpretation Act express the contrary intention to which s 5(2) refers, with respect to instruments such as awards, for the following reasons:

(1) Section 33 is expressly confined to an Act or statutory rule.

(2) That limitation stands in contrast to surrounding sections (see ss 31 and 32).

(3) Section 5(6) extends the provisions of s 33 referrable to a statutory rule only to a single class of instrument, namely, an environmental planning instrument. Given that such instruments are expressly, and discretely, referred to in the definition of instruments in s 3(1), the confinement of the application of s 33 to that single class indicates a statutory intention to limit, by s 5(6), the scope of that provision only to that class.

112 The principles of statutory interpretation have been recently considered by the High Court in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 248 CLR 378; (2012) 293 ALR 412 ('Certain Lloyd's'); Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1; (2012) 285 ALR 27 and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. An extrapolation of principles from those judgments was provided by the Court of Appeal in Brown at [39] - [40] and again in Public Service Association and Professional Officers' Associated Amalgamated Union of New South Wales [2014] NSWCA 116 at [44] and [45] and by a Full Bench of this Court in Public Service Association and Professional Officers' Amalgamated Unions of New South Wales v Department of Education and Communities [2013] NSWIRComm 32 at [24]. I will not attempt a summary of those principles but will incorporate them in the synthesis of principles relevant to the construction of awards below.

113 Before undertaking that step, I would propose to refer to some seminal judgments of the Commission in which the principles for the construction of awards are discussed on the slightly broader basis of the proper approach to construing an instrument having legal force:

(a) In Kingmill, the Full Bench stated at [63]:

The interpretation of awards are, in our view, to be approached in accordance with the principles authoritatively stated by the Full Bench of the Commission in Court Session in Bryce. Hungerford and Schmidt JJ stated there (at 452):

In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314:

The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light.

(b) In addition to the abovementioned reference to Bryce v Apperley in Kingmill, attention may also be directed to the following passage from Bryce (at 452):

Indeed, after referring with approval to what was said by Street J in Geo A Bond & Co Ltd (In Liq), as recited earlier, French J cautioned as follows in City of Wanneroo v Holmes (1989) 30 IR 362 at 379:

It is of course no part of the court's task to assign a meaning in order that the award may provide what the court thinks is appropriate - Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960] AR (NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J).

(c) Finally, in NSW Fire Brigades at [43], the Full Bench observed at [47]:

In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ).

114 Reference may also be made to the role of context in the construction of awards. This may be illustrated by reference to the principles stated in the following authorities:

(a) In Zoological Parks Board (NSW) v Australian Workers Union [2004] NSWIRComm 85; (2004) 135 IR 56 at [44] ('Zoological Parks') the Full Bench stated:

... The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 56 NSWLR 512; 120 IR 401 at [46] as follows:

[46] The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

(b) In Short v F W Hercus Pty Ltd (1993) 40 FCR 511 ('Short') at 518-519, Burchett J stated:

But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions - and this is the other answer to the argument put - would seem to require the court to look at the full context. Only then will all the nuances of the language be perceived.

(c) In Amcor, Kirby J stated at [66]:

In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law's operation.

115 Putting aside for one moment the refinements applicable to award interpretation to which Street and French JJ alluded, these statements of principle may be synthesised as follows:

(1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have;

(2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words;

(3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context;

(4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].);

(5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards;

(6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ).

116 A related question concerns the extent to which extrinsic material may be employed in award interpretation.

117 In Certain Lloyd's at [25], French CJ and Hayne J provided a summary of the principles concerning the use of extrinsic materials in statutory construction as follows:

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure (28). Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others (29), to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (30) (emphasis added). And as the plurality went on to say (31) in Project Blue Sky:

Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (32) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

To similar effect, the majority in Lacey v Attorney-General (Qld) (33) said:

"Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts."

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

118 These principles were reaffirmed by Crennan and Bell JJ at [68]. Their Honours continued at [70] as follows:

While consideration of extrinsic materials should not displace the clear meaning of the text, the purpose of a provision may be elucidated by appropriate reference to them...it is uncontroversial that in determining the meaning of the text of a statute or provision a court may take into account the general purpose and policy of a provision and, in particular, the mischief that it is intended to remedy...

119 Following this approach, Kiefel J observed at [89]:

It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit.

120 In Commission of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257, the High Court (per French CJ, Hayne, Crennan, Bell and Gagelar JJ) identified the scope for the use of extrinsic materials in statutory construction as follows (at [39]):

"This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 ; 260 ALR 1 ; [2009] HCA 41 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

121 A Full Bench of the Commission in Zoological Parks considered whether the circumstances surrounding the making of an award may be used as an aid to its construction as follows, at [45] to [47]:

45 The principle of considering the surrounding circumstances in interpreting the words of a written instrument was discussed by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348 in the following way:

On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox C.J. in Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261 was able to state the broad thrust of the rule in this way:

The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive.

His Lordship noted that evidence of surrounding circumstances is an exception to the rule, but he had no occasion to discuss its scope for there it was not, as it is here, a critical question (at p 348).

46 This issue has also been referred to more recently by the High Court in Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76ALJR 436 where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJstated at [10]:

In Codelfa, Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities (In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1383-1385; L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261; and Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 995-997) which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. ...

Such statements exemplify the point made by Brennan J in his judgment in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 401:

The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used.

47 It is clear from the authorities that whilst it is permissible to have regard to the surrounding circumstances in construing a written document, it is impermissible to consider "evidence of user".

122 These observations expressly drew on Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 ('Codelfa'), where Mason J quoted Lord Wilberforce in Prenn v Simmonds [1971] 3 AII ER 237; [1971] 1 WLR 1381 at pp1383-1384 (at 348-349), as follows:

The time has long passed when agreements, even those under seal, were isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations. There is no need to appeal here to any modern, antiliteral, tendencies, for Lord Blackburn's well-known judgmentin River Wear Commissioners v. Adamson (63) provides ample warrant for a liberal approach. We must, as he said, inquire beyond the language and see what the circumstances were with reference to which the words were used, and the object, appearing from those circumstances, which the person using them had in view. Moreover, at any rate since 1859 (Macdonald v. Longbottom(64)) it has been clear enough evidence of mutually known facts may be admitted to identify the meaning of a descriptive term.

123 Expanding upon the scope of the use of extrinsic materials in the interpretation of contracts, Mason J stated (at 352):

Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.

124 Mason J observed that Lord Wilberforce returned to this theme in Reardon Smith Line v Hansen-Tangen [1976] 1 WLR989; [1976] 3 All ER 570:

In a speech concurred in by a majority of the members of the House of Lords he acknowledged that it is legitimate "to have regard to ... 'the surrounding circumstances'" (at 995). He went on to say (at 995-6):

In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating (at 350).

125 His Honour concluded (at 352):

The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although ... if the facts are notorious knowledge of them will be presumed.

126 In NSW Fire Brigades, the Full Bench cautioned as to the limits of the use of extrinsic materials in the construction of awards (at [44]) as follows:

Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113:

Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is "reasonably open". Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.

127 Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself.

128 In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible.

129 Some further short reference should be given to the consideration of the history of a provision of an award. An examination of the actual history of the provisions of an award, the subject of an application for declaratory relief, may form part of the consideration of context.

130 In Short (at 517-518), Burchett J (with whom Drummond J agreed) gave the following vivid description of the use of history in the interpretation of awards:

No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes(Wollongong) Ply Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it."

...

True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps mostoften, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed.

131 In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Education and Communities at [26], the Full Bench observed:

In the same way that reference to legislative history is a factor relevant to the consideration of the context of a provision, we consider that it was open to his Honour, in the context of the present matter, to have regard to award history (or, as it were, the absence of award history).

132 Finally, I return to the notion, drawn again from George A. Bond (at 503-504), reflected in the judgment of French J in City of Wanneroo at [57] and reaffirmed by the Full Bench in NSW Fire Brigades at [46], that awards should receive a generous construction.

133 That further discussion should commence with the following passages from NSW Fire Brigades at [45] and [46]:

45 This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted:

Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments...

46 Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie:

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.

134 In Amcor at [96], Kirby J, albeit in the context of industrial agreements, gave the following explanation for a liberal construction of industrial instruments:

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served

combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement (87). Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court (88), of interpreting industrial instruments and especially certified agreements (89).

135 By way of further explanation for this approach, Kirby J observed the following at [94]:

...certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.

136 The principles, so stated in Amcor, are also applicable to the interpretation of awards. In particular, consent awards, such as the one presently under consideration, will often exhibit, by their nature, the context in which they operate, and their industrial purpose, similar features to those identified by his Honour regarding the interpretation of industrial agreements.

137 It might be noted that Kirby J, at [96], agreed with the reasons of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184 (which were also referenced by Callinan J at [129]).

138 The passage from Kucks v CSR Ltd cited with approval by his Honour is expressed, in part, as follows:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.

139 The applicant referred to the judgment of Macken J in San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291 at 294-5, which extended these principles of construction by stating as follows:

...industrial tribunals have always tended to lean toward construction of awards and employment circumstances which would preserve the operation of instruments of regulation such as awards rather that against their operation.

140 It was observed in Re State Rail Authority Firefighters Award 2001 that the veracity of this statement was doubted by Maidment J in Comdox (No 272) Pty Ltd (t/a Ronald Stead Golf) v Dawson (1993) 49 IR 458. However, the reasoning of Macken J was, nonetheless, followed in that case, less controversially, to the extent that it accorded with the principle of ut res magisvaleat quam pereat (at [27]).

141 A core proposition that may be distilled from these approaches is that, within the constraints of the text and structure of an award, a "purposive approach" may be adopted. This phrase borrows from a different but instructive formulation of the modern English approach to the construction of a contract of employment made between workers and an employer (without the intervention of unions or collective agreements of awards). In the judgment of the Supreme Court of England and Wales delivered by Lord Clarke of Stone-cum-Ebony in Autoclenz Ltd v Belcher [2011] UKSC 41; [2011] 4 All ER 745; [2011] I.C.R. 1157 he stated:

32 Aikens LJ stressed at paras 90-92 the importance of identifying what were the actual legal obligations of the parties. ... In addition, he correctly warned against focusing on the "true intentions" or "true expectations" of the parties because of the risk of concentrating too much on what were the private intentions of the parties. He added:

"What the parties privately intended or expected (either before or after the contract was agreed) may be evidence of what, objectively discerned, was actually agreed between the parties: see Lord Hoffmann's speech in the Chartbrook case [2009] AC 1101 , paras 64-65. But ultimately what matters is only what was agreed, either as set out in the written terms or, if it is alleged those terms are not accurate, what is proved to be their actual agreement at the time the contract was concluded. I accept, of course, that the agreement may not be express; it may be implied. But the court or tribunal's task is still to ascertain what was agreed."

I agree.

33 At para 103 Sedley LJ said that he was entirely content to adopt the reasoning of Aikens LJ:

"recognising as it does that while employment is a matter of contract, the factual matrix in which the contract is cast is not ordinarily the same as that of an arm's length commercial contract."

I agree.

34 The critical difference between this type of case and the ordinary commercial dispute is identified by Aikens LJ in para 92 as follows:

"I respectfully agree with the view, emphasised by both Smith and Sedley LJJ, that the circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. I accept that, frequently, organisations which are offering work or requiring services to be provided by individuals are in a position to dictate the written terms which the other party has to accept. In practice, in this area of the law, it may be more common for a court or tribunal to have to investigate allegations that the written contract does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so."

35 So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.

142 Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended.

143 The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided, as discussed below (and earlier in relation to the extrapolation of principle), such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award).

144 Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]:

...while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language.

145 I propose to deal with one further matter for completeness.

146 There are a variety of factors that have influenced the adoption of the aforementioned generous approach to the construction of awards. French J in City of Wanneroo concluded that the approach involves a contextual consideration, namely, the context of the industrial realities in which the award came into existence. In Amcor, Kirby J pointed to the nature of the instrument, its industrial purpose, and the manner of its expression (being the derivative of an industrial negotiation process ultimately resulting in ratification by the Commission). Madgwick J, in Kucks v CSR Ltd, referred to the framers of the award having a "practical bent of mind" with the award being expressed in terms of the relevant industrial environment.

147 These approaches are predicated upon the notion that an award is typically derived from a process of negotiation and agreement in a particular industrial relations context leading to a form of words expressed in an agreement for ratification as a consent award (provided certain statutory minimums are met and the wage fixing principles satisfied). The provisions of an award are often reached without the benefit of formal drafting that may arise in a different context (such as a statute or commercial contract), or where any formal drafting is constrained by a process of compromise which may affect clarity.

148 One question which arises is whether the process of award review, required under s 19 since the commencement of the Act on 2 September 1996, might warrant some different approach. For the reasons given below, I consider that this question should be answered in the negative.

149 Whilst s 19(1) requires the Commission to conduct a review once every three years and the Commission may, for that purpose, initiate a review, the provisions of s 19 do not remove the requirement of the Act that awards will be constituted by the parties (s 12).

150 Nothing in s 19 removes the burden falling upon parties to an award to participate in the normal way in such proceedings. The Commission is not a party to awards or proceedings concerning such awards. Section 19 proceedings are consistent with an adversarial model: Principles for Review of Award [1998] NSWIRComm 661; (1998) 85 IR 38 at 56.

151 The Commission's role in the review of awards is limited to the function assigned under s 19(2) and, for present purposes, that is relevantly the 'modernisation' of awards. Modernisation simply means to bring up to date or make contemporary: Principles for Review of Award (at 44).

152 Section 19(3) provides that the Commission must take account, inter alia, of "the ease of understanding of the awards" but the provision imposes no separate obligation on the Commission to make any particular change to the award with respect to such matters in the absence of a contention to that effect advanced by a party to such proceedings: see Principles for Review of Award (at 46).

153 Section 19 does not impose upon the Commission an independent obligation to recast the provisions of awards in a manner consistent with formal legal drafting or resolve potential issues as to the construction of a provision, absent the initiative of the parties or proceedings specifically brought in that respect (see s 175 of the Act): Principles for Review of Award at 56. Even then the Commission has been careful to draw a distinction between matters appropriate for consideration under s 10 of the Act (by way of an award application to meet the needs of employers and employees in an industry) and the quite limited purposes of s 19 which may, when activated, result in the review of an award (s 19(6)): Principles for Review of Award (at 44). See also Re Poultry Industry Preparation (State) Award and other awards [2003] NSWIRComm 129 at [61], [64], [67] and [74].

The Declaratory Jurisdiction

154 The Commission also exercises a declaratory jurisdiction pursuant to s 154, which provides as follows:

(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The

Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

155 These provisions may be compared to the provisions of s 10 of the Equity Act 1901 considered (in its amended form) in Forster v Jododex Aust. Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 (at 434). Those provisions were in the following terms:

"In addition to the jurisdiction which is otherwise vested in it, the Court shall have jurisdiction to make binding declarations of right whether or not any consequential relief is or could be claimed, and whether or not the suit in which the declaration is sought is a suit for equitable relief or a suit which relates to equitable rights or titles.

No suit shall be open to objection on the ground that a merely declaratory decree is sought thereby".

156 Gibbs J (with whom Walsh J agreed) found that provision to have freed the 'Equity Court' from restrictions arising from earlier forms of s 10 and conferred upon a judge sitting in equity a power to grant declaratory relief which was as wide as that given to a judge of the High Court. In that context, the Court described the declaratory jurisdiction thus (at 435 - 436):

The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, "under O. XXV, r. 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion" : Hanson v. Radcliffe Urban District Council (1922) 2 Ch 490, at p 507 ; and see Barnard v. National Dock Labour Board (1953) 2 QB 18, at p 41 ; and Ibeneweka v. Egbuna (1964) 1 WLR 219, at p 225 . However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words : Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 260, at p 286 .

157 Section 154 is constrained by the words "in relation to a matter in which the Commission (however constituted) has jurisdiction". The phrase "in relation to" is wide but imports a requirement for a relationship between subject matters: PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 330 - 331. In the context of s 154, the connection or association is between the subject matter of the proceedings for declaratory relief and "a matter" over which the Commission and the Court has jurisdiction. However, the scope of the jurisdiction is, nonetheless, wide as "the matter" referred to in s 154 is not dependent upon the existence of extant proceedings. The requisite connection is established if the subject matter of the declaratory proceedings falls within the powers generally available under the Act to the Commission or Court.

158 Hungerford J elucidated the breadth of this provision in Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 at [76]:

My conclusions in favour of there being jurisdiction to make the declarations sought may be stated relatively shortly. The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. In Atlantis Relocations, the majority of the Full Bench (Glynn and Maidment JJ, Marks J concurring) put it, in a manner I would respectfully adopt, in this way (at p 4) :

The declaratory jurisdiction arises "in relation to a matter" in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed (s 154(1)). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings.

159 Noting that the respondent has raised a particular issue as to the jurisdiction to grant declaratory relief which will require further assessment, the subject matter of the present proceedings is, in my view, otherwise plainly one over which the Court possesses jurisdiction under s 154 of the Act.

160 This is because the subject matter of the present controversy is clearly a matter over which the Commission, whether constituted as the Commission or as the Industrial Court, has jurisdiction. I accept, in this respect, the following submissions by the PSA:

11. The Commission's jurisdiction includes the capacity to deal with "industrial disputes" (s 130) which are a "dispute about an industrial matter" or make awards setting "conditions of employment" (s 10) including about "industrial matters". The Commission (when constituted as the Industrial Court) has jurisdiction with respect to the enforcement of industrial instruments, including awards, by way of the imposition of civil penalties (s 357), recovery of underpayments (ss 358 and 365) or injunctions to restrain from further contraventions (s 359).

12. A declaration as to the interpretation or application of an award of the Commission is plainly related to a "matter" within the jurisdiction of the Commission constituted both as the Commission and the Industrial Court susceptible to declaratory orders under s 154 of the Act.

161 In addition to these factors, mention may also be made of the provisions of s 6(2)(g) of the Act.

162 Matters arising in the jurisdiction of the Commission include "industrial matters". Section 6(1) provides a general definition of that expression and s 6(2), what is described as "examples". One such example is "procedures for the resolution of industrial disputes" (s 6(2)(g)). Without attempting to generally define the word "procedure" in this context, I consider that it encompasses formal consultative arrangements of the kind referred to in cl 65.1 of the Award.

163 The reason for that conclusion is as follows. Whilst the resolution of industrial disputes will often involve the application of the dispute resolution procedures under the Act to an extant dispute (see Ch 3), it does not follow that dispute resolution procedures are confined to such matters. Dispute resolution will, both as contemplated by the Act and as dictated by experience and practice, also involve the prevention of disputes. So much is clear from the definition of "an industrial dispute" in the Dictionary to the Act (see para (c)) and the objects of the Act, specifically ss 3(g) and (h), which refer to the encouragement and facilitation of cooperative workplace reform and equitable, innovative and productive workplace relations.

164 Formal consultative arrangements of the kind here under consideration are one mechanism for the prevention of industrial disputes. Consultation between organisations (or between employers and employees) is fundamental to the prevention of industrial disputes, by the removal of the factors which typically give rise to disputes or the reduction of issues that may require a more formal means of dispute resolution such as conciliation.

165 It was common ground that the grant of declaratory relief under s 154 is discretionary.

166 In reliance upon Forster, the applicant initially contended that the discretion was limited to particular factors - whether the question was hypothetical or academic, the declaration sought had no practical utility or the applicant had no substantial interest in the matter to be decided (also relying, in that respect, on Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43). However, in argument, counsel for the applicant properly conceded that Gibbs J in Forster did not purport to lay down rules exhaustively dealing with the manner of the exercise of a discretion to grant or refuse declaratory relief.

167 Gibbs J described the discretion of a court of equity given by s 10 of the Equity Act as follows (at 437 - 438):

It is neither possible nor desirable to fetter the broad discretion by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration :

"The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."

Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna [1964] 1 WLR 219 at p 225:

"After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration."

168 The considerations identified by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 were factors which required satisfaction for the grant of declaratory relief, not an exhaustive list of matters governing an exercise of discretion to grant (let alone refuse) an application for declaratory relief.

169 Thus, the High Court (per Mason CJ, Dawson, Toohey and Gaudron JJ) in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581 - 582 stated:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest". and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".

170 As previously discussed, the power vested in this Court to grant declaratory relief is not inherent but a creature of statute, namely s 154. The discretion residing in the Court under that provision was described by the Full Bench in Endeavour Coal Pty Ltd v CFMEU at [3] as "broad".

171 Nevertheless, I see no reason why the limits of the exercise of judicial power as described in Ainsworth (and Forster) would not apply to the exercise of the Court's discretion under s 154. Certainly, no contrary indication appears on the face of the Act.

172 As to the circumstances in which a Court may refuse to exercise its discretion to make a declaratory order, P W Young in 'Declaratory Orders' (2nd ed) referred to issues concerning "the reality" of a dispute. After referring to Gardner v Dairy Industry Authority of New South Wales (1978) 18 ALR 55 at 60 ('Gardner'), the author referred to questions of "utility" at [703] as follows:

The court may exercise its discretion to refuse relief if the result of the proceedings will be of little practical value: A-G v Scott (1904) 20 TLR 630 at 633; Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217 and The Dairy Farmers Co-operative Milk Company Ltd v Commonwealth (1946) 73 CLR 381.

One class of case is where the declaration, even if made, will not settle the dispute.

Thus a construction point will not be decided unless the decision is reasonably likely to solve the question between the parties: Lewis v Green [1905] 2 Ch 340, Smart v Allen (1970) 91 WN (NSW) 241. However, the court may construe a document even though its construction will only solve the problems if a particular construction is arrived at: Perpetual Trustee Co Ltd v McKendrick [1973] 2 NSWLR 784. For, as Astbury J said, in Earl Harrowby v Leicester Corporation (1916) 114 LT 129 at 133:

It is impossible to say in the case of any contract that the parties may not litigate after they have determined what the true construction of their contract is.

In Integrated Lighting & Ceilings Pty Ltd v Philips Electrical Pty Ltd (1969) 90 WN (Pt 1) (NSW) 693, the defendant objected on the ground of utility to the plaintiff obtaining a declaration that a contract to supply light fittings was still on foot. Hope J said at 701:

It seems to me that although no other relief is sought by the plaintiff against the defendant, the making of appropriate declarations as to the existence and continuance of the contract would be of considerable utility to it. . . . On any view of the matter it is critical for the plaintiff in a real commercial sense to know whether the defendant is bound to it by an enforceable contract.

...

173 In Attorney-General v Scott (1904) 20 TLR 630, the defendant sought a declaration that it was the duty of the county council to maintain a highway of a construction and strength sufficient to bear the passage over it of the defendant's locomotive (and to repair the highway for that purpose). Jeff J held (at 633):

... It was sought to be supported under Order XXV., rule 5, which, while not countenancing applications for declarations "in the air", yet does seem to sanction the granting of a declaration as to the future in cases where it is definite and useful. But it is not the practice to grant it if it is embarrassing or useless for any good purpose, and I think that is the case here, especially as the extent of the obligation of the county council may vary very considerably at different dates and under different circumstances. ...

174 In Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217, Lord Wright MR (with whom Romer LJ and Greene LJ agreed) stated (at 222):

... Now, applying those cases, I do not desire in any way to fix any definite bounds to the discretion of the court under R.S.C. Ord. XXV, r. 5, but in the present case, I think it is clear that as matters now stand the court can give no relief at all to the plaintiffs. The question of copy-right which is before the court here can only exist in respect of specific actual works, specific actual records or compilations, and it is perfectly clear that there is no question of any infringement of these. As to any future compilations of the same character which may come into existence, it would be most improper for this court to make any general declaration as to whether they would or would not be the proper subject of copy-right. ...

175 In Lewis v Green [1905] 2 Ch 340 at 344, Warrington J stated:

... It is only intended to enable the Court to decide questions of construction where the decision of those questions, whichever way it may go, will settle the litigation between the parties. It is not intended that questions of construction which, if they are decided in one way only will settle the dispute between the parties, should come up for decision on an originating summons. ...

176 Before returning to s 154, I should refer to the judgment of Mason J in Gardner. It was stated in Gardner at 60:

... The power of the Supreme Court to make declarations of right is discussed in the judgment of Gibbs J in Forster v Jodoex Australia Pty Ltd (1972) 127 CLR 421; [1972-73] ALR 1303. But that discussion is based upon the premise not expressly enlarged upon that the applicant for a declaration has, or would, upon the construction of the statute or instrument in question have at some time and in some circumstances, a right, though it might not presently be enforceable. Whether or not it is appropriate to declare that right at any given time is a matter within the discretion of the court. But, in my opinion, there is no discretion to declare the existence or non-existence of a situation which does not give rise to a right in the applicant.

177 Young also expressed a note of caution as to a refusal to exercise discretion (at [720] and [721]) as follows:

[720] Although the courts say that in a proper case relief will be refused in its discretion, it is sometimes very hard indeed to make the submission that in a particular case, although the court has come to the conclusion that the plaintiff is in the right, it should not declare that right. There usually has to be some public interest which cancels the plaintiff's prima facie right to have the court declare for him. ...

Other public interests that will mean the plaintiff should not get a declaration occur in cases almost exactly similar to those which have been summarised earlier in this chapter as matters of jurisdiction. The court may hold that there is jurisdiction to deal with the subject-matter, but because of the inutility of it all, no declaration should be made.

Apart from these matters, there are matters of convenience which are dealt with in [721].

Convenience

[721] Sometimes the convenience of the declaratory process will be sufficient justification for its use. See, for example, London Passenger Transport Board v Moscrop [1942] AC 332 and A-G v Ripon Cathedral [1945] Ch 239, Doulton Potteries Ltd v Bronotte [1971] 1 NSWLR 591, and [513].

...

178 More recently, N Witzleb, in his paper 'Equity Does Not Act in Vain' : An analysis of futility arguments in claims for injunctions, (2010) 32 Sydney Law Review 503, observed, after a review of authority, the success of futility arguments was dependant on the likelihood that the order will lack practical utility for the plaintiff as well as the strength of other discretionary arguments. He reasoned that the question of futility is linked, ultimately, with the objects of the statute in question.

179 A good deal of this paper concerned the judgment of the Full Federal Court in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; (2006) 154 FCR 425 ('the Japanese Whaling Case'). That matter concerned an application by the appellant for a declaration that the respondent was unlawfully killing, injuring, taking and dealing with Antarctic minke whales in the Australian Whale Sanctuary and an injunction was sought to restrain future contraventions. The matter ultimately turned on a narrow question as to the refusal by the trial judge to grant leave to serve the first instance application in Japan, but traversed the question of futility in the context of applications for injunctions and declarations (see the judgment of the majority (Black CJ and Finkelstein J) at [27]). The majority found that leave should have been given based on some considerations applicable in the present context to which I will now turn. The author, Witzleb, considered that a declaration, in the context of the issue of futility there arising, was the preferable remedy.

180 Care needs to be taken in the application of the principles in the Japanese Whaling Case, as the matter focussed upon applications for a statutory public interest injunction (see at [22]) and, in that light, considered the principles ordinarily applying to the grant of an injunction under s 80(4) of the Trade Practices Act 1975 (Cth). Two relevant principles may be derived, however, from the judgment of the majority for present purposes. First, the exercise of a discretion to grant or refuse a declaration will be influenced by whether or not the grant of a declaration will fulfil the objects of a statute (in the case of the grant of a declaration under powers conferred by statute) (at [22]). This will assist in determining whether the grant of a declaration will serve some purpose (see at [23]) and may reflect on the practical utility of granting a declaration.

181 Secondly, the majority adopted the view (at [25]) expressed by Sackville J in ACCC v Chen [2003] FCA 897; (2003) 132 FCR 309; (2003) 201 ALR 40 as to whether difficulty of enforcement should deter the grant of an injunction:

More generally, we agree with the view expressed by Sackville J in ACCC v Chen (2003) 132 FCR 309 that the fact that an injunction granted under s 80 of the TP Act may prove difficult or even impossible to enforce is not necessarily a bar to the grant of relief, although it is a material consideration to be weighed against other circumstances relevant to the exercise of the Court's discretion: see at [45], citing I C F Spry, The Principles of Equitable Remedies (6th ed, 2001) at 42.

Consideration

182 In opposing the PSA's application for declaratory orders, the respondent first relied on the contention that the reference to the "document" in cl 65.1 of the Award denoted a generic policy document issued by the respondent, which, consistent with the issuing of policies generally, might be revised and reissued, with modifications, from time to time. In other words, the clause was not specifying the 1997 Consultative Arrangements as the document to be exclusively observed in determining the effective means of consultation, but rather included future policy documents that might deal with the subject.

183 I do not consider such an interpretation is plausible.

184 The "effective means of consultation", according to cl 65.1, was to be "as set out in the Consultative Arrangements Policy and Guidelines document ..." ('the phrase'). By the use of that language, the clause envisaged, in my view, an intention to prescribe an effective mechanism for consultation in conformity with an identified document, being the 1997 Consultative Arrangements.

185 The reference to the words "the" and "document" in the phrase indicates grammatically that the means of consultation obliged to be undertaken is confined to a specific, existing document. "The" implies the noun "document" is one about which the drafter knew or about which there was common knowledge. The word "document" cannot be read, as the respondent's submissions would have it, in isolation from the context in which it appears.

186 Whilst it may be accepted that the clause is attended by some ambiguity and that an expert parliamentary draftsperson might have insisted on the addition of the descriptor "published in Circular C1997-53 on 29 August 1997", the absence of such an intervention is the very thing long recognised by the courts as necessary to take into account when construing an award provision.

187 Whilst inconclusive in its own terms, when read with the words "the" and "document", the accompanying phrase "as set out in" is also suggestive that the drafters contemplated consultation in accordance with a particular document. The words are suggestive of an intention that the means for consultation would be found, in a detailed or systematic way, in the document referred to in the clause, rather than some other document or documents that may or may not meet that description.

188 If it had been the parties' intention to refer to an ambulatory policy document rather than a particular reference to the 1997 Consultative Arrangements it would have been effortless to have referred to "the Consultative Arrangements Policy and Guidelines document as amended from time to time". The absence of such an additional definitional phrase is not conclusive but it is telling, given that such a phrase would have been necessary (as would have been obvious to the negotiators involved) in order to distinguish this meaning from what I have held to be the natural and ordinary meaning of the words (without such an addition) in context.

189 The construction of cl 65.1 which I prefer in relation to the first issue raised by the respondent is supported by reference to other provisions of the Award. Clause 7, to which I will return, is described as a "Statement of Intent". The provision commences with the words "This award aims to consolidate, in one document, all common conditions of employment of staff employed in Departments...". This would suggest that the mere usage of the word "document" does not produce a necessary implication that the drafter intended to refer to a policy document or to some recording of arrangements of a non-legal or policy character. This is because the word "document", when used in cl 7, is synonymous with the Award itself.

190 The words appearing in the balance of cl 65.1 cannot be ignored in this analysis. On one view, the words "on matters of mutual interest and concern, both formal and informal, between management and Association" may suggest that a specific document has not been nominated by the clause because these words, in fact, instruct as to the content of a future document. However, this approach cannot sit comfortably with the words "as set out in" in the clause or, for that matter, the reference to a specific, albeit imprecisely described, document. The better view, I think, is that the words appearing at the end of the clause, in fact, connect to the words "effective means of consultation" and describe the nature of what constitutes effective consultation but not the actual means by which consultation will occur between the parties.

191 A wider context may also be considered in this case. Given the words of cl 65.1 are, as I have noted, attended by some ambiguity, the ascertainment of the meaning of the provision may be aided by a consideration of context vis á vis extrinsic materials as to the circumstances surrounding the incorporation in the Award of the predecessor provision to cl 65.1. These are commonly known to the parties to these proceedings and were known to their predecessors. The provisions were agreed after lengthy negotiations. So, too, were those parties intimately involved in the making of the 1997 Consultative Arrangements. These are objective considerations and unrelated to the subjective intentions of the parties.

192 In my view, that context confirms the textual analysis undertaken above. The consideration of whether the parties intended the reference to the "Consultative Arrangements Policy and Guidelines document" in cl 65 to be a reference to the 1997 Consultative Arrangements such that the 1997 Consultative Arrangements became incorporated by reference in the Award may be answered in the affirmative by dint of the evidence of the circumstances surrounding the incorporation of the predecessor to cl 65.1 in these proceedings which disclosed that: the 1997 Consultative Arrangements had been agreed and promulgated before the making of the Award; the 1997 Consultative Arrangements was the only document (and agreement) in existence at the time the parties agreed to a consent award being made dealing with consultative arrangements between the present parties (and bore a similar title to the document described in the Award) and there was an expressed reference, in an exchange between those same parties, concerning the incorporation of those consultative arrangements in the proposed award.

193 There is no sustainable evidence to support a joint intention that the document was to be incorporated only until superseded by the unilateral decision of one particular party, the employer. It seems unlikely that experienced negotiators on either side would go to the considerable trouble of negotiating a complex set of award-based rules and guidelines governing consultative procedures to apply in the public sector, with the intention of leaving it open to the respondent to unilaterally amend the document if it chose to do so at any time in the future.

194 Finally, I note that the respondent contended the reviewed Award was made after the 2012 Consultative Arrangements were issued and, accordingly, it may be presumed that any "replication of reference to the 1997 Policy in the consultation clause would be displaced by the intervening issue of the 2012 Policy (which expressly superseded the 1997 Policy)".

195 Whilst I accept that the review proceedings in November 2012 are relevant to the exercise of the Court's discretion in this matter, I do not consider this submission to be correct. I agree with the submission of the PSA that the contention "mischaracterises the award review conducted in relation" to the Award and "the conduct of the review does not generally and did not in that case result in the making of a new award".

196 Clause 103 of the reviewed Award provides:

103.2 The changes made to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 22 November 2012.

103.3 Changes made to this award subsequent to it first being published on 31 July 2009 (368 I.G. 884) have been incorporated into this award as part of the review.

103.4 The award remains in force until varied or rescinded, the period for which it was made having already expired.

197 The award referred to in the clause is the Award which is the subject of the declaration. The effect of cl 103 is to continue the Award, as made in 2009, save for variations made under s 19(6) of the Act for the purposes of the review, without the necessity of making variations pursuant to s 17 of the Act or making a new award.

198 In substance, the reviewed Award is a continuation of the Award, varied in consequence of the review. Although it was known as a 'reviewed award' (after the adoption of a slightly unusual procedure), the title was adopted merely for administrative convenience to indicate that it had been the subject of review.

199 The respondent's second proposition was that, if cl 65.1 did incorporate the 1997 Consultative Arrangements, or what was said to be an ambulatory document of that nature, the provision, nevertheless, failed to set the "conditions of employment", as required by s 10 of the Act. In making an award provision that incorporated such a document, it was submitted the Commission effected an ultra vires delegation of the determination of the "effective means of consultation" to the parties through their implementation of the consultative arrangements. This construction would thereby make the provision invalid, and preclude, it was contended, the grant of the declaratory order sought by the applicant.

200 Section 10 of the Act requires the Commission, in exercising its award-making function, to set "fair and reasonable conditions of employment for employees". A drafting device commonly used in setting such conditions is for an award to contain a provision that refers to another source. Examples of this are provided earlier in this decision. Clause 23 of the Award provides:

23. Non-Compliance

In the event of any persistent failure by a staff member to comply with the hours of duty required to be worked, the Department Head shall investigate such non compliance as soon as it comes to notice and shall take appropriate remedial action according to the Commentary and Guidelines on Conduct and Performance Provisions - Part 7 of the Act.

201 I do not understand the respondent to be advocating these provisions are ultra vires and, therefore, invalid. However, they are no different to cl 65.1 in that they refer to another document which the Award sanctions as the source of the Award obligation. An award provision may validly create a legal right or obligation by means of an incorporation by reference in the same manner as statutory provisions to the same effect: Public Service Association and Professional Officers' Association Amalgamated Union of NSW v State of New South Wales at [55].

202 By the opening phrase of cl 65.1 the Award prescribes that the effective way or method of consultation to be adopted on matters of mutual interest and concern, both formal and informal, between management and, inter alia, the PSA is that set out in the1997 Consultative Arrangements.

203 Indeed, the respondent's second submission rather undermines its first since it was the precision of the means of consultation set out in the 1997 Consultative Arrangements document which enabled the Commission to fulfil its obligations under s 10 by incorporating the 1997 document into the Award. Had the means of consultation not been confined to those expressly laid out in the 1997 Consultative Arrangements, but been an ambulatory policy variable at the whim of one (or even, for the purposes of this point, both) of the parties, it might have been said with some force that the Commission had delegated its award-making power in that respect.

204 Contrary to the respondent's submission that cl 65.1 delegates the Commission's award-making power to set "effective means of consultation" to the parties, the clause defines "the effective means of consultation" as being that in the 1997 Consultative Arrangements. That is to say, the Award approved or sanctioned an agreed set of arrangements that the parties were to observe in adopting "effective means of consultation". The parties were not at large in setting the effective means of consultation, but rather they were to undertake that task in accordance with the prescribed 1997 Consultative Arrangements. Whether those Arrangements are enforceable is a separate question to which I will return.

205 The respondent referred to the decision of the Full Bench in Public Employment Industrial Relations Authority v Health and Research Employees' Association of New South Wales (1994) 54 IR 162 at 183 as supporting its position that there was a delegation of the Commission's award-making power, thereby making cl 65.1 invalid. In that case the Full Bench stated:

We now turn to the final point, namely that the award was made beyond the jurisdiction of the Commission by reason of the fact that, in describing an obligation to pay rates of salary to be found in another award, it failed to "fix" rates of pay.

This submission depends for its force upon the notion that the power conferred on the Commission by the 1940 Act, in relation to the prescription of such an obligation is to actually prescribe the rate of pay in question. The relevant statutory power was s.20 of the 1940 Act which was in part in the following terms:

"s.20(1) Subject to this Act, a committee shall have cognisance of and power to inquire into any industrial matter in the industry or calling for which it is established, and in respect of such industry or calling may on any reference or application to it make an order or award -

(a) fixing the price for work done by employees, and the rates of wages payable to employees, other than aged, infirm, or slow workers;"

That provision was further developed by s.23A as follows:

"23A. Notwithstanding anything contained in this Act, a committee shall in exercising its powers under this Act, fix such prices for work done and rates of wages as the committee deems just and reasonable to meet the circumstances of the case."

While each of those provisions related expressly to conciliation committees, they were binding on a single member of the Commission by virtue of the terms of s.30. There is authority for the point taken by the Crown.

In re Fire Brigade Service Maintenance Section and Hose Repair Department (State) Award Sheehy J. dealt with an appeal from the award of a Conciliation Commissioner. His Honour said:

"Subclause (b) of cl.2, Wages, of the award made by the Commissioner was in the following terms:

(b) The margins prescribed herein shall be varied in the same manner as the margin prescribed for the classification of Second Class Firemen in the Fire Brigade Employees (State) Award published in Industrial Gazette, volume 181, page 835, or any award varying rescinding or replacing that award.

The validity of this provision was challenged by Mr. Cohen, who referred to the University of New South Wales Case (1960 AR 631 at p.657) where Beattie J. as he then was, said:

Today a Committee has jurisdiction to award just and reasonable rates and is obliged to fix such rate; but to award a higher grade pay clause without knowledge of the rates on which the clause is to operate would not be to fix just and reasonable rates. Such a clause can be properly awarded only if it relates to rates known to the tribunal and fixed by the award.

I respectfully agree with his Honour and I do not think that the prescription under challenge in this case can be regarded as a valid exercise of the award-making powers conferred by the Act - the tribunal concerned must fix the wages and cannot delegate this function to another tribunal, the functions of which would necessarily be performed at some time in the future and be affected perhaps by reasons which may not be at all appropriate in the case of the classifications concerned."

We would concur in the reasons of both Beattie J. and Sheehy J. in that citation. It follows that the form of award made by Maidment J. is deficient, although its intention and purposes remain valid.

We uphold the appeal to that extent. We otherwise dismiss the appeal. We refer the matters to Maidment J. for disposition in accordance with the terms of this judgment.

206 Based on this authority, cl 65.1 would only be invalid if it was ambulatory, as I have pointed out above. That is, if it effectively delegated to the respondent the authority to set conditions of employment by varying the 1997 Consultative Arrangements from time to time "in the future". For the reasons earlier given, the provision is not ambulatory; the nature and quality of the effective means of consultation was fixed or set by the Commission by the making of an award provision which imposed upon the parties an obligation to observe the agreed 1997 Consultative Arrangements.

207 The capacity of the parties to construct particular consultative arrangements within the framework established by the 1997 Consultative Arrangements does not warrant any different conclusion, as the terms of those arrangements, when read in conjunction with cl 65.1 of the Award, fix or stipulate the requirements for consultation. To find that a more prescriptive approach was required for validity would fail to recognise that the very purpose of the clause is to establish consultative arrangements which will vary depending upon the scale and nature of the consultation being undertaken by the parties (as expressed in cl 7 of the Award).

208 The respondent's third proposition was that, whether or not cl 65.1 was construed to incorporate the 1997 Consultative Arrangements, the provision was of an aspirational character and did not confer legal rights and obligations upon the parties. I have earlier summarised this contention. The proposition appeared to consist of a number of elements:

(1) Although the applicant's amended application was predicated on the proposition that cl 65.1 "required" the respondent to comply with the 1997 Consultative Arrangements, the clause merely provided that "There shall be effective means of consultation...", such means not having been defined;

(2) The 1997 Consultative Arrangements did not provide a specific mechanism, certain in its operative effect, with which to enforce the terms of consultation. Thus, even if such a document were incorporated into the provision, the clause would not impose any enforceable rights or obligations on the parties; and

(3) The use of the words "shall be" in cl 65.1 were ambiguous and it was not clear whether implementation was to be immediately upon the making of the 1997 Award or at some later point in time (although the respondent conceded in oral argument that, when the words "effective means of consultation" are read with the balance of the clause, the "operative intent" of the clause was to convey the commitment of the parties to establish an effective means of consultation).

209 I note that the High Court described aspirational statements in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [206] (per Gummow, Hayne and Heydon JJ) as:

...commonly concerned to state goals, not to identify the particular methods by which the stated goals will be achieved...

210 As to the first element referred to above, if one reads cl 65.1, as a whole against the background of its insertion into the Award, it is clear that the intention was to provide for an effective means of consultation between management and the PSA on matters of mutual interest and concern, both formal and informal, and that means of consultation was to be in the form of the 1997 Consultative Arrangements.

211 In that sense, there is nothing aspirational about the language of cl 65.1. It identifies the particular method by which effective consultation is to be achieved. These I have referred to at [50] and following above. The necessary implication must be that, if management and the PSA are to effectively consult on "matters of mutual interest and concern, both formal and informal", they are required to do so in accordance with the 1997 Consultative Arrangements. Furthermore, it appears that, far from being aspirational, these arrangements have proved both practicable and workable over the best part of 20 years. They may be contrasted with the provisions of the Award which are, by their nature, truly aspirational in character (see [23] of this judgment).

212 As to the second and third elements of the respondent's third proposition, it is essentially put that, even if cl 65.1 is construed as incorporating the 1997 Consultative Arrangements, there is no timeframe within which the Arrangements are to be implemented and if they are implemented there is no enforceable right or obligation to do so because there is no intention to create legally binding relations and no mechanism exists to overcome any disagreement that may arise regarding implementation.

213 The 1997 Consultative Arrangements, it was submitted, rely on guidelines at the organisational level and the application of those guidelines is left to the parties. In those circumstances, if the parties are unable to agree on how those guidelines are to be implemented, no enforceable right lies with the PSA, for instance, to require compliance with the 1997 Consultative Arrangements.

214 As a preamble to the consideration of these elements, I refer to the analysis earlier set out in this judgment of the 1997 Consultative Arrangements which indicated that the document contains a mixture of what might be described as 'mandatory obligations' on the one hand but, on the other hand, the effective means of consultation is to be achieved by negotiation at the organisational level based on principles and guidelines (leaving it to the parties to reach agreement on the final form of the consultative process).

215 As to the former category, in relation to sector-wide consultation, a forum was maintained under the 'Policy' section of the 1997 Consultative Arrangements which was made up of specified representatives who were to meet monthly. Whilst the language of the 1997 Consultative Arrangements establishing the sector-wide arrangements is slightly opaque (as it relates to some existing sector-wide arrangements being incorporated in the 1997 Consultative Arrangements), when properly construed, by reference to the entirety of the provisions of the document considered in the context of drafting by industrial parties, specific and prescriptive requirements regarding sector-wide consultation may be readily identified in the Arrangements. Sector-wide consultative arrangements were said to "occur" and "continue". The forum was either established or maintained (the evidence as to meetings of the forum post-dated the establishment of the 1997 Consultative Arrangements). The 'Objectives' of Appendix A described the forum as a "formal mechanism" which was appropriate "for discussion of key issues on policy and strategy prior to changes being implemented". As noted above, the membership at and meeting arrangements for the forum are stipulated in Appendix A. Whilst the 'Guidelines' section of the 1997 Consultative Arrangements identified that issues discussed by consultative committees should be "determined by agreement", that process was to occur "in accordance with any agreed sector-wide framework". A controversy over the respondent's refusal to comply with the obligatory requirements of Appendix A, over insistence by the PSA to apply those provisions, is justiciable in nature and amenable to declaratory relief.

216 Further, if there was a sector-wide refusal by the respondent to allow agencies to engage in discussions aimed at implementing principles or guidelines prescribed by the 1997 Consultative Arrangements, declaratory relief might be available. Whilst there is no one single approach to consultation applied to all organisations, the policy as to organisational level consultation under the 1997 Consultative Arrangements provided that "specific arrangements should be determined jointly by management and the relevant unions". The agreed policy is said to produce "an ongoing commitment to consultation, effective communication and the facilitation of productive outcomes".

217 Similarly, the PSA may be able to insist, as earlier discussed, that consultation arrangements may only operate by means of the participation of that organisation or other organisations party to the arrangements, and then, with the provision of certain facilities (see [69] and [70] above).

218 The question remains as to whether cl 65.1 intended to create a legally enforceable obligation to observe the 1997 Consultative Arrangements.

219 The respondent initially submitted that the words "shall be" in cl 65.1 were ambiguous because it was unclear whether that was expected to occur immediately on the making of the Award on 28 October 1997 or at some later time, but in oral argument properly conceded that, when read with the surrounding words appearing in the aforementioned phrase, the operative intent of the clause was to convey a commitment to establishing an effective means of consultation.

220 However, just what the means of consultation was, it was submitted, was not delineated by the clause. The applicant, on the other hand, submitted the words "shall be" simply meant "shall", which brings with it, prima facie, an obligation: Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655 at 690 and Formosa v Department of Social Security (1988) 46 FCR 117 at 124. It was contended that, when "shall" is read with the words "as set out in", the clause prescribes the effective means of consultation by reference to the nominated document.

221 I do not consider that the word "shall" may be simply substituted for the words "shall be" in the clause, as, by its ordinary meaning, "shall be" may connote a future obligation. There is an ambiguity in this sense, although, as the respondent properly conceded, the opening phrase of cl 65.1 does convey a commitment to establish an effective means of consultation.

222 Rather, the words "shall be" acquire a sense of compulsion or obligation when read in the context of both the surrounding words of the clause and by reference to other provisions of the award and extrinsic material to which I will return. When considered in the light of the words "as set out in" in the phrase, the words "shall be" do not appear as words having a future tense and take on an obligatory flavour. Thus, the means of consultation shall be as set out in the identified document.

223 Some support for this construction may be found in the context of the section of the Award in which cl 65.1 is located.

224 The subject clause falls within s 5 of the Award under the heading 'Union Consultation, Access and Activities'. The section establishes a series of provisions which might broadly be described as trade union rights and obligations. Although various expressions are used in the clauses appearing in the section to convey an obligation or duty, the provisions are universally prescriptive in nature - regulating the role of and assistance afforded to trade unions in the public sector. Indeed, cl 65.2 operates precisely in this manner. A finding that cl 65.1 is obligatory in nature conforms broadly to the structure and operation of s 5 and, in any event, is consistent with the general purpose of that section: to regulate matters concerning or affecting trade unions in industrial relations in the public sector. The different languages used to communicate obligations in s 5 such as "will be", "will apply", "will attract", "shall provide" and "are too" rather than undermining this conclusion are a reminder that not too strict an approach should be adopted to the interpretation of award provisions and that, in the instant case, the words "shall be" should be interpreted in that light.

225 This initial process of analysis bearing upon the second and third elements of the respondent's contentions (as to the third issue) is supported by extrinsic materials.

226 The 1997 Circular accompanying the 1997 Consultative Arrangements and issued by the Head of the Premier's Department on 29 August 1997 support a construction that the clause obliges consultation in terms of the document referred to in the clause. That circular stated that the Arrangements had:

...been developed in order to assist public service organisations to integrate consultative practices into their efforts to achieve productive reform in the workplace.

And that:

Organisations are required to review their current consultative arrangements and to implement the policy and procedures that are outlined in the Consultative Arrangements: Policy and Guidelines.

227 Given this direction to implement the 1997 Consultative Arrangements, which was made prior to the commencement of the operation of the 1997 Award in October 1997, there would not appear to be any point including cl 65.1 in the Award (or cl 68 as it was in the 1997 Award) if its effect was to be non-binding: it would be entirely superfluous.

228 However, cl 7 also requires consideration in this context.

229 Clause 7 contains a Statement of Intent which must be taken into account in discerning the purpose of cl 65.1. Clause 7 is as follows:

This award aims to consolidate, in the one document, all common conditions of employment of staff employed in Departments, to encourage the consultative processes at the service-wide and the various organisational levels, to facilitate, as appropriate, greater flexibility in the workplace and to help ensure that the excess hours, accumulated as a result of Departmental work requirements, are not forfeited.

230 Thus, it is an aim of the Award to "encourage the consultative processes at the service-wide and the various organisational levels...". That aim is given effect by cl 65.1. The 1997 Consultative Arrangements referred to in that provision stated that consultation was to occur at both the sector-wide and organisational levels and laid down rules and guidelines as to how that was to be achieved.

231 The phrase "encourage the consultative processes" is an unusual one. Encourage the processes to do what? The provision lacks precision, but some assistance as to the intention can be gleaned from the August 1995 agreed framework document, outlining the matters to be canvassed in negotiations for the Crown Employees (Public Sector Salaries August 1995) Consent Award, which ultimately resulted in the making of the 1997 Award. The parties' intended outcomes included "updated consultative arrangements at the sector level" and "new improved arrangements for consultation at the organisation level".

232 It would seem then that the Award's aim, which can reasonably be said to have reflected the parties' intention, given the Award was by consent, was to encourage the updating and improvement of consultative processes at the service-wide and various organisational levels.

233 On one view, the use of the word 'encourage' suggests the provisions of the Award governing consultation are not intended to be binding but merely aspirational, promotional or facilitative. However, I do not consider that the terms of cl 7 should result in that construction of cl 65.1 for the following reasons.

234 First, I note that one meaning of the word 'encourage' is "to stimulate by assistance, approval, etc." (Macquarie Dictionary Online, Macmillan Publishers Group Australia 2014). The parties' declared intention was to update and improve consultative processes in the public sector. The encouragement or means of stimulating parties at the service-wide and organisational levels in the public sector to undertake the updating and improvement was to incorporate consultative arrangements in an award. The fact the Award had binding force does not detract from its capacity to encourage reform. Indeed, it enhances it.

235 Secondly, it would seem unlikely that the parties, given the language used in cl 65.1, would add a different formulation in cl 7. Thus, cl 7 may be directed not to the content of the consultative arrangements but to the purpose of such provisions.

236 Thirdly, one may draw an analogy between objects clauses or statements of intent in legislation and the statement of intent in cl 7 of the Award. Courts have generally taken the view, exemplified by what Cole JA stated in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 78, namely that:

...whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power.

237 Lastly, it seems most unlikely that the parties would: negotiate over a period of two years on the terms of what is quite a fundamental industrial relations issue (appropriate consultative arrangements across the bulk of the public sector), agree to insert the outcome of the negotiations in an instrument that is intended to impose enforceable obligations binding upon parties on pain of pecuniary penalties, have a direction issued by the employer that the 1997 Consultative Arrangements were required to be implemented, and then have a provision inserted in the 1997 Award (cl 68) that had no force or effect.

238 The construction of cl 65.1 I have adopted in this judgment is consistent with the general proposition that awards are intended to impose enforceable obligations binding upon parties on pain of pecuniary penalties: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362. The Court would not normally construe the provisions of an award as permitting the party upon whom continuing obligations are imposed to alter those obligations at will.

239 Further, I note that meanings which avoid absurdity ought be preferred. A construction which permits the respondent to determine the nature of its own award obligations produces an absurdity.

240 In my opinion, the language of cl 65.1, when read in context, confirms an intention that there be an effective means of consultation between management and the PSA in the form of the 1997 Consultative Arrangements which carried with it a legal obligation to comply with those Arrangements. For reasons earlier given, the terms of the 1997 Consultative Arrangements do not act as a barrier to that conclusion. The parties will be required to act in accordance with those provisions by undertaking consultation within the framework of those Arrangements and, in the case of terms expressed as being obligatory, to act accordingly. The fact that some difficulties may arise for enforcement in that context is not a basis, in my view, to decline to grant a declaration (see [181] of this judgment) particularly when the adjudication occurs in an industrial context (which notion I explain below).

241 Finally, I note that the parties have proceeded upon the premise that the reference to "a right" in s 154 is a reference to legally enforceable rights or liabilities. It may be that this is too narrow a definition of "a right" for the purposes of s 154 of the Act, given its situation in a statute dealing with a wide variety of circumstances and arrangements in an industrial and employment context. The broad (general) definition of "industrial matters" in cl 6(1) squarely raises this question: see Sanky v Whitlam (1978) 142 CLR 1 (at 23 - 25). However, given the parties' approach in this matter, I do not consider it is appropriate to resolve this question for the purposes of determining the present application.

Discretionary Considerations

242 Notwithstanding the finding that the PSA has established a right with respect to a valid provision of the Award, the respondent submitted that the Court should exercise its discretion to refuse declaratory relief upon a variety of grounds earlier outlined in this judgment.

243 Whilst the respondent advanced submissions as to the nature of the provisions of the 1997 Consultative Arrangements as being anticipatory or directory as discussed above, the respondent only tangentially developed that issue with respect to the exercise of the Court's discretion. Nonetheless, the question of the utility of making declaratory orders must arise for consideration in this matter, given the PSA seeks a blanket order obliging adherence to the 1997 Consultative Arrangements which contain some provisions about which the parties are perfectly at liberty to agree or disagree.

244 I have found this aspect of the exercise of discretion troubling. On balance, however, I do not consider issues of utility (and, in particular, the existence of non-mandatory elements of the 1997 Consultative Arrangements), properly constitute a basis for refusing declaratory relief. I have reached that conclusion for the following reasons:

(1) The declaratory relief sought in this matter is not directed to theoretical or hypothetical questions. There is an actual question as to whether the 1997 Consultative Arrangements apply (or continue to apply) to consultation and communication in the public sector under the Award. The applicant has a real and abiding interest in that question as it is a party to and, in a sense, a beneficiary of those arrangements. It may not be strictly necessary to go further, but, if required, I would find that the 2012 Consultative Arrangements did materially alter the terms of the 1997 Consultative Arrangements in a way which impacted upon, or potentially impacts upon, the PSA and its members. Two references will suffice in this respect - the removal of exclusivity for unions in consultative arrangements (in contrast to the addition of other forms of employee representation) and the introduction of limitations on the field or class of matters about which consultation may occur under the 2012 policy (not found in the 1997 policy). Even though a particular and immediate controversy about those matters has not arisen and the changes brought by the 2012 Consultative Arrangements are yet to detrimentally (in a practical and direct sense) impact the PSA, they may do so. A declaration may, therefore, produce foreseeable consequences for the parties;

(2) The 1997 Consultative Arrangements contain provisions which are clearly expressed in terms of compulsion. As earlier mentioned, even that aspect of the policy concerning consultation at an organisational level provided that "specific arrangements should be determined jointly by management and the relevant unions", imposing, at least, a requirement that the parties to that process shall be the management of an organisation and relevant unions. This provision probably also compels those parties to determine a process by which consultation is to be undertaken (by virtue of the aforementioned phrase and the phrase then following in the provision: "It is necessary that the parties in an organisation agree on an effective approach to issues and/or matters that may be subject to consultation.");

(3) The practical value of cl 65.1 needs to be assessed in terms of the objects of the Act (and the Statement of Intent in the Award). The consultative arrangements are conducive to the fulfilment of the objects in s 3(a), (c) and (h) of the Act. Whilst the declaration may have limited immediate practical value in relation to aspects of the 1997 Consultative Arrangements which operate only by or through agreement, the resolution of the legal obligations falling upon the parties to the award under cl 65.1 will remove doubt as to the system of consultative arrangements under which they will operate and thereby facilitate their effective operation. The declaration will also serve the purpose of avoiding future disputation over rights and obligations to consult (again, consistently with the objects of the Act) and, thereby, fulfil the broad purpose of cl 65.1 to prevent industrial disputes (see Pt 1 of Ch 3 and par (c) of the definition of 'industrial dispute' in Sch 5 of the Act);

(4) This conclusion is productive, in my view, of a sensible industrial outcome of the kind contemplated by Kirby J in Amcor. There is no dispute that the parties reached an agreement to consult in terms of the 1997 Consultative Arrangements. In industrial relations terms, the document reflects a strong commitment to usher in a system of consultative arrangements with some particularity and a sense of purpose (to achieve an improved process of consultation). The parties saw fit not only to enter into an agreement in writing but to have their arrangements reflected in an award fixing conditions of employment to the public sector. In a practical sense, the respondent continues to, in effect, apply the 1997 Consultative Arrangements. Industrial tribunals have long strived to ensure industrial parties conform with both the letter and spirit of formal and informal industrial agreements: Re Corrections Health Services Nurses' (State) Award (1999) 90 IR 235 at 245 and Re Broken Hill Commerce and Industry Consent Award (No 2) [2002] NSWIRComm 309; (2002) 120 IR 429 at [33]. A construction which brings about conformity with those agreements and arrangements and permits change by a process of negotiation or adjudication is the one most consistent with the maintenance of harmonious and productive industrial relations as contemplated under the objects and scheme of the Act and should be preferred. Save for any restriction associated with the Award being within its nominal term (see ss 16 and 17 of the Act), there is no reason why a party to those arrangements, whether by reason of changed circumstances or otherwise, may not seek their elimination or variation, but industrially, and in conformity with the broad tenets and objects of the Act, such changes should be approached by consultation (by the very processes here under consideration), industrial negotiation, or, absent agreement, by access to conciliation or arbitration under the Act.

245 Finally, I do not consider the other discretionary issues raised by the respondents (which are summarised in [88(5)] and [88(6)] of this judgment) establish a proper or sufficient basis for the Court to refuse to exercise its discretion to make declaratory orders for the following reasons (each of which coincide with the alphabetised summary of the respondent's contentions contained within the aforementioned paragraphs of this judgment):

(a) Delay in acting may constitute a basis to refuse declaratory relief depending upon the circumstances of the case. In this matter, I do not consider even a delay of almost eleven months is sufficient to warrant a refusal of declaratory relief. This is because the PSA nonetheless communicated its objection to the promulgation of the 2012 Consultative Arrangements at an early stage. In any event, there are ongoing rights and obligations running under cl 65.1. The declaration will serve the purpose of determining future as well as historical rights, in an industrial context where the parties will necessarily have an ongoing relationship;

(b) Whilst parties do have obligations under s 19, and the PSA may have been expected, in the ordinary course, to raise issues concerning the operation of cl 65.1 of the Award in such proceedings, I do not consider a failure to fulfil an obligation under s 19 to bring to the attention of the Commission a matter concerning the "ease of understanding of award" (see s 19(3)(f)) would warrant depriving an organisation, having a real interest in the legal operation of the provision of an award, a right to such a declaration as to its meaning. Further, it may not be doubted that the Commission would necessarily, if exercising a power to vary under s 19(6), first need to determine the true meaning of a provision. The PSA is entitled to approach that question in a way which will deliver a definite interpretation in law as to the subject provision; and

(c) It is a serious matter that the PSA may have failed to act in accordance with grievance procedures under the award or dispute resolution mechanisms under the Act. However, the Act contemplates that issues as to the construction of awards may be resolved (or facilitated in that resolution) by the grant of declaratory orders. This is clearly a case where the declaratory proceedings will be conducive to the effective operation of dispute resolution processes by providing a judicial determination as to the construction of a contested provision of an award. The dispute resolution processes are still open in relation to the operation of cl 65.1 including, if appropriate, the consideration of applications to vary cl 65.1 (see s 136(1)(b)).

246 In light of these conclusions, it is unnecessary to deal with the question of whether the respondent's submission as to ultra vires delegation of award-making power constituted a collateral attack upon cl 65.1

Conclusion

247 I propose to grant the applicant's amended application for declaratory relief, subject to one issue concerning the form of the appropriate order. Whilst the terms of cl 65.1 are identical in the Award and the reviewed Award, it may be that any order made to reflect this judgment should properly refer to the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. I shall give the opportunity for further submissions by either party, in this respect, which should be filed and served within 14 days of this judgment.

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Decision last updated: 18 August 2014