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The Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment & Ors [2012] HCATrans 207

The Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment & Ors [2012] HCATrans 207

Case [2012] HCATrans 207 5 September 2012

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[2012] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S127 of 2012

B e t w e e n -
THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED OF NSW
Appellant
and
DIRECTOR OF PUBLIC EMPLOYMENT
First Respondent
ROADS AND MARITIME SERVICES
Second Respondent
NSW ATTORNEY GENERAL
Third Respondent
NSW MINISTER FOR FINANCE & SERVICES
Fourth Respondent
UNIONS NSW
Fifth Respondent

FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 SEPTEMBER 2012, AT 10.15 AM

____________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR A.A. HATCHER, SC and MR M. GIBIAN, for the appellant. (instructed by W.G. McNally Jones Staff Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR J.G. RENWICK, SC and MS A.M. MITCHELMORE, for the first, second, third and fourth respondents. (instructed by Crown Solicitor (NSW))

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS J.C. COX, for the Attorney‑General for South Australia intervening, in support of the respondents. (instructed by Crown Solicitor (SA))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with my learned friend, MS K.E. FOLEY, for the Attorney‑General for Victoria intervening and with my learned friend, MR G.J.D del VILLAR, for the Attorney‑General for Queensland intervening. (Victorian Government Solicitor) (Crown Law Brisbane)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with MS F.B. SEAWARD, for the Attorney‑General of Western Australia intervening. (instructed by State Solicitor (WA))

MR JACKSON: Your Honours will have, I think, our outline of oral argument and your Honours may I come immediately to the nature of the appellant’s case. The Industrial Relations Act 1996 (New South Wales) – we have provided your Honours with a copy of the Act – provides for an Industrial Commission and an Industrial Court. I will come to the provisions shortly. The term “Industrial Court” is the title now given by section 151A of that Act, which your Honours will see at page 91 of volume 2 what had previously been described as the Industrial Commission in court session. Your Honours will see section 151A.

The Industrial Commission is a non‑judicial and arbitral body. The Industrial Court is a judicial body. The essence of our case is that the Industrial Court, or the Commission in Court session – and your Honours will see that that title still appears in a number of sections of the Act – is a body capable of being and is in fact invested with federal jurisdiction. The persons who are judges of that court have had conferred upon them non‑judicial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: The Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment & Ors [2012] HCATrans 207 [2012] HCATrans 207
Case: [2012] HCATrans 207
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the interpretation of the *Public Sector Employment and Management Act 2002* (NSW) and the *Industrial Relations Act 1996* (NSW). The Public Service Association and Professional Officers' Association Amalgamated of NSW (the Unions) sought to challenge decisions made by the Director of Public Employment and other respondents regarding the employment conditions of certain public sector employees.

The central legal issue before the High Court was whether the Director of Public Employment had the power to make a determination that would override the terms of an industrial award that had been registered under the *Industrial Relations Act 1996* (NSW). Specifically, the Unions contended that the Director's determination was invalid to the extent that it purported to alter conditions of employment that were protected by the registered award.

The High Court, in a unanimous decision, found that the *Public Sector Employment and Management Act 2002* (NSW) did not grant the Director of Public Employment the power to make a determination that would abrogate or vary the terms of an existing industrial award registered under the *Industrial Relations Act 1996* (NSW). The Court reasoned that the latter Act provided a comprehensive framework for the regulation of industrial relations, including the registration and enforcement of awards, and that the *Public Sector Employment and Management Act 2002* (NSW) was not intended to undermine this framework. The Court emphasised the principle of statutory interpretation that a later, more specific statute (the *Industrial Relations Act 1996* (NSW) in relation to industrial awards) should generally prevail over an earlier, more general statute, or that a statute should not be interpreted as overriding existing statutory regimes unless that intention is clearly expressed.

The High Court allowed the appeal and made declarations that the Director of Public Employment's determination was invalid to the extent that it purported to override the terms of the registered industrial award.

Orders