Treasurer for the State of South Australia v United Trades and Labour Council (Trading as SA Unions) - [2020] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
TREASURER FOR THE STATE OF SOUTH AUSTRALIA AND ANOR v UNITED TRADES AND LABOUR COUNCIL (TRADING AS SA UNIONS)
[2020] SASCFC 42
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Parker)
26 May 2020

INDUSTRIAL LAW - SOUTH AUSTRALIA - SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL AND ITS PREDECESSORS - JURISDICTION - OTHER CASES
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL INSTRUMENTS - AWARDS - ALTERATION OF AWARDS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
The South Australian Employment Tribunal (‘the Tribunal’) declared and made an order which increased by 3.5 per cent the maximum amount of recreation leave loading payable to employees under the Public Service (Recreation Leave Loading) Award (‘the Award’).
The Tribunal made these orders pursuant to s 100 of the Fair Work Act 1994 (SA). This provides the Tribunal can make a declaration adopting in whole or in part, and with or without modification, principles, guidelines, conditions, practices or procedures enunciated or laid down in, or attached to, a decision or determination of Fair Work Australia (now the Fair Work Commission).
The Tribunal held that the principle “entitlements which are related to or fixed by reference to variations in minimum award rates, in principle, are capable of adjustment as a consequence of the wage review, if in the circumstances that is considered appropriate to maintain a fair and relevant minimum safety net of terms and conditions in accordance with s 134(1) of the Fair Work Act 2009 (Cth)” could be found in the Annual Wage Review 2017-2018 [2018] FWCFB 3500 decided by the Minimum Wage Panel of the Fair Work Commission.
The Tribunal held this principle enlivened the jurisdiction and power to make the declaration and order increasing the maximum amount of leave loading under the Award.
The appellants contend the Tribunal erred in that no such principle can be found in the decision of the Fair Work Commission, or in the alternative, recreation leave loading was calculated in such a way that application of the principle could not increase the loading. Further, and in the alternative, they contend the Tribunal applied the principle to the award in a manner which was inconsistent with the principle itself.
The respondent contends a two-limb principle can be distilled from the Annual Wage Review 2017-2018, the first limb being that minimum award wages be increased by 3.5 per cent and the second that work-related allowances are increased by the same percentage as minimum award wages. The respondent contends the second limb of the principle is either embedded in the annual wage review itself, or inhered to the same paragraph in which the first limb can be found.
Held per Stanley J (Kourakis CJ and Parker J agreeing), allowing the appeal:
1. The requirement in s 100 of the Fair Work Act 1994 (SA) that principles, guidelines, conditions, practices or procedures must be ‘enunciated, laid down in or attached to’ a decision or determination of Fair Work Australia should be construed as requiring that such principles et cetera are either expressly or impliedly found in the text of such a decision or determination, or found in the text of a document such as an appendix or annexure referred to in the text of the decision or determination in question.
2. The Tribunal erred in holding that the principle that entitlements which are related to or fixed by reference to variations in minimum award rates are capable of adjustment as a consequence of the FWC annual wage review, if in the circumstances that is considered appropriate to maintain a fair and relevant minimum safety net of terms and conditions, was ‘attached to’ the decision of the Annual Wage Review 2017-2018.
3. The second limb of the principle contended for by the respondents is not ‘enunciated, laid down in or attached to’ the decision of the FWC. It therefore cannot support the declaration and order made by the Tribunal.
4. The condition precedent for the making of a declaration pursuant to s 100 of the Fair Work Act 1994 (SA) is not established.
5. Notwithstanding the Tribunal has the jurisdiction to vary the Award pursuant to s 90 of the Act, the declaration and order of 1 May 2019 were not made in reliance on that section. The exercise of the award-variation power is conditioned upon the terms of s 90(7). There was no evidence that the requirements of s 90(7) were satisfied.
Fair Work Act 1994 (SA) ss 7, 90, 100; Fair Work Act 2009 (Cth) ss 134, 149, 284, 285; Public Service (Recreation Leave Loading) Award C1-1.5, referred to.
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, applied.
State Wage Case 2018 - Variation of Public Sector (Recreation Leave Loading) Award [2019] SAET 65; Annual Wage Review 2017-2018 [2018] FWCFB 3500, discussed.
Commonwealth Annual Leave Case 1971 (1972) 144 CAR 528; South Australian Annual Leave Case 1973 (1974) 41 SAIR 300; Public Service (Recreation Leave Loading) Award Case (1975) 42 SAIR 194, considered.

TREASURER FOR THE STATE OF SOUTH AUSTRALIA AND ANOR v UNITED TRADES AND LABOUR COUNCIL (TRADING AS SA UNIONS)
[2020] SASCFC 42

Full Court: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: I would allow the appeal for the reasons given by Stanley J.
On the construction of the expression ‘enunciated or laid down in’ most favourable to the respondent, there is no principle, guideline or condition to be found in the decision of the Fair Work Commission (FWC) which is applicable to the cap on recreation leave loading. I would emphasise that the second, critical, limb of the principle contended for by the respondent is a function of extrinsic award and statutory provisions operating on the decision of the FWC and does not ‘inhere’ in it.
STANLEY J:
Introduction
This is an appeal from a decision of the Full Bench of the South Australian Employment Tribunal (the Tribunal). It concerns the jurisdiction and power of the Tribunal. The appeal is from declarations and orders made by the Full Bench of the Tribunal on 1 May 2019 in the following terms:
In accordance with the reasons for decision delivered 11 April 2019 the Full Bench of the South Australian Employment Tribunal declares and orders as follows:
AThe South Australian Employment Tribunal (SAET) declares pursuant to s 100 of the Fair Work Act 1994 (the Act) that it adopts with modifications the decision of the Minimum Wage Panel of the Fair Work Commission in the Annual Wage Review 2017-18 [2018] FWCFB 3500, in the form set out hereunder.
BSAET makes this Declaration pursuant to s 100(3)(c) of the Act on the basis that it applies to specified awards namely the Public Service (Recreation Leave Loading) Award (the Award).
CThis Declaration will come into force on the first pay period to commence on or after 1 July 2018 and remain in force until further order of SAET.
DThe Registrar will settle the variations to the Award in accordance with s 98 of the Act.
Orders:
THAT the maximum loading to be applied to an employee during a period of recreation leave or pro rata recreation leave under cl 1.5.2 of the Award be increased by 3.5% to the sum of $912.97.
The appeal is against that order.[1]
[1] The second notice of appeal describes the order as a declaration.
That declaration and order followed earlier declarations and orders of 5 September 2018 as part of the determination of the 2018 State Wage Case.[2] Those declarations and orders of 5 September 2018 were made by consent. They increased adult wages in awards within the Tribunal’s jurisdiction by 3.5 per cent in accordance with the decision of the Minimum Wage Panel of the Fair Work Commission (Cth) (FWC) in the Annual Wage Review 2017-18[3] to increase the national minimum wage and modern award minimum wages by 3.5 per cent.
[2] State Wage Case 2018 – Variation of Public Sector (Recreation Leave Loading) Award [2019] SAET 65 (State Wage Case 2018).
[3] [2018] FWCFB 3500.
The declaration and order that was made on 1 May 2019 followed the decision of the Full Bench of the Tribunal delivered on 11 April 2019. The only contested issue which fell for determination by the Full Bench was whether there could or should be an order or a declaration of the Tribunal which had the effect of increasing by 3.5 per cent the maximum amount of recreation leave loading payable to an employee for any one full entitlement of annual leave (the maximum recreation leave loading) under the Public Service (Recreation Leave Loading) Award (SA) (the Award). Prior to the impugned declaration and order made by the Full Bench of the Tribunal, clause 1.5 of the Award provided:[4]
[4] State Wage Case 2018 [2019] SAET 65 at [12].
CLAUSE 1.5 RECREATION LEAVE LOADING
1.5.1 During a period of recreation leave or pro rata leave an employee is to be paid a loading computed upon the normal salary attaching to the office concerned at the time the employee commences leave.
1.5.2The loading is to be applied as follows:
1.5.2.1 If employed other than a shift worker or as a seven-day week worker,
either;
a loading of 17½ percent of the salary up to a maximum of $882.10 for any one full entitlement of annual leave,
or
the allowances and penalties payable had the employee not been on leave during the relevant period, whichever is the greater.
1.5.2.2 If employed as a shift worker or a seven-day week worker (i.e. an employee who is working rotating shifts on seven days a week, or who is rostered to work regularly on active duties on Saturdays, Sundays and public holidays),
either;
a loading of 20 percent of salary up to a maximum of $882.10 for any one full entitlement of annual leave,
or
the allowances and penalties payable had the employee not been on leave during the relevant period, whichever is the greater.
1.5.2.3 An employee who is employed for part of a year as a shift worker or a seven day week worker is to be paid a loading as prescribed in 1.5.2.2 on a pro rata basis for completed months worked as a shift worker or a seven-day week worker and for the balance to be paid a loading as prescribed in 1.5.2.1.
Background to the Award
Since the Commonwealth Annual Leave Case 1971[5] employees broadly have enjoyed an award-based entitlement to recreation leave loading. In South Australia, award entitlements to recreation leave loading for employees covered by the State system of workplace relations were introduced by the South Australian Annual Leave Case 1973.[6]
[5] [1972] CthArbRp 713, (1972) 144 CAR 528.
[6] (1974) 41 SAIR 300.
The justification for the provision of recreation leave loading was to ensure that employees who ordinarily received penalties or loadings or allowances in addition to their ordinary wage would not suffer a substantial diminution in remuneration while taking leave. These were primarily blue-collar employees. The standard recreation leave loading became set as a loading equating to 17.5 per cent of the employee’s wages for the period of the leave.
On 1 July 1974, as a result of the Public Service (Recreation Leave Loading) Award Case,[7] recreation leave loading was extended to employees in the public service in South Australia pursuant to the Award.
[7] (1975) 42 SAIR 194.
The Award was made to ensure that employees in the public service also had access to recreation leave loading during a period of annual or recreational leave. The rationale for extending the provision of recreation leave loading to public servants was essentially comparative wage justice. The doctrine of comparative wage justice was concerned with the maintenance of relativities between categories of employees for wage-fixing purposes. In the case of public servants it was considered there was a need to ensure that the provision of recreation leave loading to some in the workforce did not give rise to a de facto alteration of relativities between different categories of employees.[8]
[8] (1975) 42 SAIR 194 at 202.
In enacting the Award the Industrial Relations Commission of South Australia imposed a maximum monetary limit on the amount of recreation leave loading, on the ground that otherwise employees earning salaries significantly greater than most other employees would receive an additional financial benefit at a level which could not be justified, having regard to the purpose of the recreation leave loading.[9]
[9] (1975) 42 SAIR 194 at 203-206.
The maximum amount was initially set at $150 by reference to various interstate comparators. It has been regularly increased since that time by reference to national and state wage-fixing principles. The evidence before the Tribunal was that in each year from 2000 to 2017, the maximum amount was increased by an amount or percentage equivalent to the minimum wage increase granted by the State Wage Case in each relevant year.[10]
[10] [2019] SAET 65 at [11].
The appeal is concerned with the increase in the maximum amount of the recreation leave loading[11] effected by the declaration and order made by the Tribunal pursuant to s 100 of the Fair Work Act 1994 (SA) (the Act).
[11] What I refer to as “the cap”.
The Full Bench of the Tribunal held that jurisdiction was conferred on it pursuant to s 100(1) of the Act to make a declaration increasing the cap on the recreation leave loading payment to an employee under clause 1.5.2 of the Award by 3.5 per cent to the sum of $912.97 by reason of the increase in the Award minimum wage payable to such employees of 3.5 per cent. Integral to that decision was the Tribunal’s adoption, with modifications, of the principles of the Minimum Wage Panel in the Annual Wage Review 2017-2018 decision.
Section 100
Section 100 of the Act provides:
(1)SAET may, on its own initiative, or on the application of—
(a)     the Minister; or
(b)     the United Trades and Labor Council; or
(c)     the South Australian Employers' Chamber of Commerce and Industry Incorporated,
make a declaration adopting in whole or in part, and with or without modification, principles, guidelines, conditions, practices or procedures enunciated or laid down in, or attached to, a decision or determination of Fair Work Australia.
(2)However, a declaration may only be made if the terms of the declaration are consistent with the objects of this Act.
(3)A declaration under this section may be made on the basis that it is to apply in relation to (and prevail to the extent of any inconsistency with)—
(a)awards generally; or
(b)awards generally, other than a specified award or awards; or
(c)a specified award or awards (and no other awards).
(4)In addition, a party to an award that is affected by a declaration under this section may, within 28 days after the declaration is made, apply to SAET to have the award excluded from the declaration (or a part of the declaration), despite the operation of subsection (3).
(5)SAET may grant an application under subsection (4) on such conditions as SAET thinks fit.
Since s 100 was enacted Fair Work Australia’s title was amended in 2013 to the Fair Work Commission.[12]
[12] See the definition of “Fair Work Australia” in s 4(1) of the Act.
Reasons of the Full Bench
For the purpose of s 100, the Full Bench recognised that any declaration had to adopt, either in whole or in part, and with or without modification, a principle, guideline, condition, practice or procedure enunciated or laid down in, or attached to, a decision or determination of the FWC. It adopted the principle that entitlements which are related to or fixed by reference to variations in minimum award rates are capable of adjustment as a consequence of a wage review, if appropriate, so as to maintain a fair and relevant minimum safety net. That principle was relied on by the Full Bench to enliven its discretion to make the declaration and order providing for an increase in the cap on recreation leave loading under the Award.
Referring to the decision of the Minimum Wage Panel of the FWC conducting the Annual Wage Review 2017-18, the Full Bench said:[13]
[13] State Wage Case 2018 [2019] SAET 65 at [22]-[32].
SA Unions accepted that a declaration by the Tribunal which varied the Award had to be founded on the adoption of principles etc derived from the Review decision. It contended that the task of the FWC upon conducting an annual wage review included that of ensuring that modern awards, together with the National Employment Standards, provided a fair and relevant minimum safety net of terms and conditions. It submitted that the principles and guidelines to be drawn from the Review decision allowed for the minimum wage increase of 3.5% to be translated to other entitlements such as the leave loading. It put this proposition on the basis that the leave loading should be treated as an allowance, such that by the terms of the FWA, and of modern awards themselves, the order made for the increase of 3.5% in minimum wages necessarily translated to an allowance in the nature of the leave loading. Alternatively, SA Unions contended that the leave loading was a condition of employment, and as such part of the safety net, and that it was consistent with the principles of the Review decision and the objects of the Act to apply the wage increase to the maximum leave loading.
It is necessary to examine a number of aspects of these submissions. We first refer to some of the provisions of the FWA. Part 2-6 deals with Minimum Wages. Under Division 3 “Annual Wage Reviews”, s 285 provides:
(1)     The FWC must conduct and complete an annual wage review in each financial year.
(2)     In an annual wage review, the FWC:
(a)must review:
(i)modern award minimum wages; and
(ii)the national minimum wage order; and
(b)may make one or more determinations varying modern awards to set, vary or revoke modern award minimum wages; and
(c)must make a national minimum wage order.
(3)     In exercising its power in an annual wage review to make determinations referred to in paragraph (2)(b), the FWC must take into account the rate of the national minimum wage that it proposes to set in the review.
Section 284(1) of the FWA sets out the minimum wages objective, which requires under that the FWC establish and maintain a safety net of fair minimum wages taking into account the considerations detailed in that subsection.
Section 284(2) provides that the minimum wages objective is to apply to the performance and exercise of the FWC’s functions and powers in conducting the annual wage review under Part 2-6, and in the making of modern awards under Part 2-3 of the FWA. A note to s 284(2) requires that the FWC must, in setting, varying or revoking modern award minimum wages, have regard to the objects of the FWA, and apply “the modern awards objective”, with reference to s 134 of the FWA.
Section 134 of the FWA appears in Part 2-3 relating to Modern Awards. It is an overarching provision which defines the modern awards objective. Section 134 of the FWA provides:
(1)     The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
….
Thirteen separate criteria which encompass a wide range of objectives are then set out. They need not be reproduced. Section 134(2) provides that the modern awards objective is to be applied both with respect to the exercise of powers and functions under Part 2-3, and Part 2-6 in so far as they relate to modern award minimum wages.
Under s 139(1) of the FWA terms that may be included in modern awards encompass wages, various other payments, different employment arrangements, and related matters, and notably include the following as separate categories:
(g)     allowances, including for any of the following:
(i)expenses incurred in the course of employment;
(ii)responsibilities or skills that are not taken into account in rates of pay;
(iii)disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(h)     leave, leave loadings and arrangements for taking leave;
…
Section 149 is titled “Automatic variation of allowances” and provides:
If a modern award includes allowances that the FWC considers are of a kind that should be varied when wage rates in the award are varied, the award must include terms providing for the automatic variation of those allowances when wage rates in the award are varied.
In the Review decision, the FWC noted that in performing its statutory functions and exercising its powers on a review, it was required to have regard to the general objects of the FWA, and the considerations specified in ss 134 and 284. This was said to involve an evaluative exercise taking into account overlapping considerations arising not only from the statutory objectives, but from implied wider issues, such as economic criteria and broad social objectives.
We draw from the above that by virtue of the incorporation into the FWC annual wage review of principles applicable to the modern awards objective, entitlements which are related to or fixed by reference to variations in minimum award rates, in principle, are capable of adjustment as a consequence of the wage review, if in the circumstances that is considered appropriate to maintain a fair and relevant minimum safety net of terms and conditions in accordance with s 134(1) of the FWA. That is reinforced by the provisions of s 149 with respect to the automatic variation of allowances of a nature which fall within that provision consequent upon a variation in award wage rates.
We conclude there is a principle attached to the Review decision, relating to maintenance of the safety net of conditions of employment, including but extending beyond minimum wages, which is open for adoption by the Tribunal in the exercise of its discretion under s 100 of the Act. That such an approach may be taken is confirmed by the observations of the Full Commission in the State Wage Case July 2005 (the SWC 2005). In the course of considering the implications of the then recent introduction of s 100(3) of the Act, the Commission said:
S 100 was amended by Parliament as part of the reforms leading to the Fair Work Act 1994. The existing ss (1) and (2) remain unaltered and the new ss (3) and (4) have been added. It is reasonable to assume that Parliament was aware of the existing use and approach to s 100 as adopted by the Commission in earlier State Wage Cases. It is clear that Parliament intended that the operation of the existing State Wage Case arrangements be potentially modified by the addition of the new provisions. It is also reasonable to infer that Parliament intended that s 100 could be used to establish principles of wage fixation and facilitate the variation of awards on other matters such as specific conditions of employment.
[Footnotes omitted.]
Grounds of appeal

The appellants bring this appeal pursuant to a grant of permission by a judge of this Court. Permission was granted for grounds 1 and 2 of the second notice of appeal. That notice includes a third ground of appeal in the alternative. Permission is sought with respect to that ground.
The first ground of appeal is that the Tribunal erred in construing and applying s 100(1) by finding that there was a “principle” “attached to” the FWC decision, namely, that entitlements, which are related to or fixed by reference to minimum award wage rates are capable of adjustment as a consequence of a wage review. The appellants contend that no such principle is enunciated or laid down in or attached to the FWC decision. The FWC decision was solely concerned with fixing a national minimum wage and minimum rates of pay under modern awards, pursuant to s 285(2) of the Fair Work Act 2009 (Cth) (the Fair Work Act). The FWC decision did not concern and did not consider any variation to entitlements other than wage rates. It did not need to as the Fair Work Act makes express statutory provision for changes to prescribed allowances in s 149.
The second ground of appeal contends that the Tribunal erred in any event because, pursuant to the Award, neither recreation leave loading or the cap are related to or fixed by reference to minimum award wage rates. The entitlement is fixed by reference to an employee’s actual salary. The Award applies generally to all employees engaged in the State public service and recreation leave loading is calculated by reference to actual salary.
The third ground of appeal contends that, in the alternative, if this Court determines that an employee’s entitlement to recreation leave loading may, pursuant to s 100 of the Act, be fixed by reference to minimum award wage rates determined by the FWC, the Tribunal’s declaration ought to be set aside and the matter remitted to the Tribunal for further consideration as the increase in maximum recreation leave loading decided by the Tribunal applies to all employees who are subject to the Award. It is not limited to those employees whose salaries are fixed in accordance with minimum award wage rates.
The parties’ submissions
The appellants contend that what the Tribunal purported to adopt was not a principle enunciated, laid down in or attached to a decision of the FWC. The decision of the FWC is narrow in scope. It did not consider entitlements to recreation leave loading. It was confined to deciding whether to increase the national minimum wage and minimum wage rates under modern awards. Recreation leave loading is a payment over and above the minimum wage rates prescribed by the Award. In the alternative, the Tribunal erred in that the approach it took of adopting and modifying the principle resulted in an increase of the cap on recreation leave loading not by reference to minimum award wages but by reference to actual salary received by employees. The consequence is that the declaration and order extended to non-award employees.
The respondent propounds a different principle derived from the FWC’s decision to the principle identified by the Tribunal. The respondent submits there is a two-limbed principle. The first limb is that award wages are to be increased by 3.5 per cent. The second limb is that the monetary value of all award entitlements calculated by reference to award wages is also to be increased by 3.5 per cent. The respondent submits that the first limb of the principle was enunciated in paragraph [490] of the decision of the FWC. The respondent also submits that the second limb of the principle was embedded or inhered in the same paragraph. That provides:
The outcome of this Review in relation to modern award minimum wages is that from the first full pay period on or after 1 July 2018 minimum weekly wages are increased by 3.5 per cent, with commensurate increases in hourly rates on the basis of a 38-hour week.
The respondent contends that the submission that the declaration by the Tribunal which effected an increase in the maximum amount of recreation leave loading was within jurisdiction. The appellants’ contention to the contrary is a product of the impermissibly narrow approach they take to the construction of s 100(1). That provision should not be so narrowly construed. It submits that the words and purpose of the provision supports a broad construction of its meaning and operation. It submits that s 100 is primarily a facilitative mechanism that allows the Tribunal to avoid the administratively cumbersome process of varying individual awards in response to the annual wage review conducted by the FWC.
The respondent submits this construction is reinforced by the history of s 100. Sub-sections (3)‑(5) were inserted into the Act in 2005 to avoid this cumbersome process. Recognition of the true purpose of the provision contraindicates giving it a narrow construction. There is no warrant for constraining the Tribunal’s power to vary awards through the exercise of the declaratory mechanism enshrined in s 100. To do so misapprehends the purpose of the provision and how it fits into the statutory scheme which elsewhere confers upon the Tribunal wide award-making and variation powers. The words of wide import used in s 100 should be given the broad meaning which is conducive to the purpose of the provision.
The construction of s 100
The appeal concerns a question of statutory interpretation. The relevant principles are set out in the joint reasons of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross[14] in the following terms:[15]
[14] [2012] HCA 56, (2012) 248 CLR 378.
[15] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-390.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
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. 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, 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” (emphasis added). And as the plurality went on to say 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 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) 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.”
(Footnote omitted.)
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.
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”
(Emphasis added.)
And as the plurality said in Australian Education Union v Department of Education and Children’s Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
(Footnote omitted.)
The jurisdiction of the Tribunal is enshrined in Chapter 1 Part 2 of the Act. Section 7 is within Chapter 1. Section 7(b)(ii) confers jurisdiction to make awards regulating remuneration and other industrial matters. “Industrial matter” is defined in s 4 of the Act as follows:
industrial matter means a matter affecting or relating to the rights, privileges or duties of an employer or employers (including a prospective employer or prospective employers) or an employee or employees (including a prospective employee or prospective employees), or the work to be done in employment, including, for example—
(a) the wages, allowances or remuneration of employees or prospective employees in an industry, or the piece-work, contract or other prices paid or to be paid for the employment, including any loading or amount that may be included in wages, allowances, remuneration or prices as compensation for lost time and the wages, allowances or remuneration to be paid for work done during overtime or on holidays, or for other special work, and also the question whether piece-work will be allowed in an industry;
(b) the hours of employment in an industry, including the lengths of time to be worked, and the quantum of work or service to be done, to entitle employees to any given wages, allowances, remuneration or prices, and what times are to be regarded as overtime;
(c) the age, qualification or status of employees, and the manner, terms and conditions of employment;
(d) the relationship between an employer and an apprentice (and any matter relating to employment arising between an employer and an apprentice);
(e) the employment of juniors and apprentices in an industry (including the number or proportion that may be employed);
(f) the employment of any person, or of any class of persons, in addition to those referred to above, in an industry;
(g) the refusal or neglect, without reasonable cause or excuse, of any person bound by an award, order or enterprise agreement to offer or accept employment, or to continue to be employed on the terms of the award, order or agreement;
(h) any established or allegedly established custom or usage of an industry, either generally or in a particular locality;
(i) the monetary value of allowances granted to or enjoyed by employees;
(j) the dismissal of an employee by an employer;
(k) a demarcation dispute;
(ka) any matter affecting or relating to the performance of work by outworkers, including—
(i)      the giving out of work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker;
(ii)     the regulation of any person who gives out work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker;
(iii)    the creation of 1 or more contracts (including a series of contracts) dealing with the performance of work by outworkers;
(iv)    the terms or conditions under which work is performed by outworkers;
(v)     the protection of outworkers in any other respect;
(l) the performance of work nude or partially nude, or in transparent clothing;
(m) a matter classified as an industrial matter by regulation;
(n) all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole;
The power to exercise the jurisdiction conferred by s 7(b)(ii) is found in s 90 of the Act which provides:
(1) SAET may make an award about remuneration and other industrial matters.
(2) However—
(a)     SAET cannot regulate the composition of an employer's workforce except in relation to the employment of juniors and apprentices; and
(b)     if there is an inconsistency between an award and an enterprise agreement, then, while the agreement continues in force, the agreement prevails to the extent of the inconsistency.
(3) SAET may provide in an award for remuneration, leave or other conditions of employment that are more favourable to employees than the standards that apply under Part 1 Division 2.
(4) SAET may refrain from hearing, further hearing, or determining an application for an award binding only one employer or two or more employers who together carry on a single business or for variation of such an award for so long as SAET—
(a)     considers that, in all the circumstances, the parties concerned should try to negotiate an enterprise agreement to deal with the subject matter of the application; and
(b)     is not satisfied that there is no reasonable prospect of the parties making such an agreement.
(5) An award may be made on a provisional or interim basis.
(6) In making an award, SAET is not restricted to the specific relief claimed by the parties, but may include in the award provisions SAET considers necessary or appropriate.
(7) Before SAET makes an award, it must take reasonable steps to ensure that all persons who are to be bound by the award have been given a reasonable opportunity to appear and be heard before SAET.
Section 90 is a wide conferral of power fettered only by the limitations that the award must be concerned with remuneration and/or other industrial matters and cannot regulate the composition of the employer’s workforce.[16] Within those boundaries the Tribunal can make an award which includes any provision it considers necessary or appropriate. Accordingly, the conferral of power on the Tribunal to make an award extends to an award which imposes or varies the maximum amount of recreation leave loading payable to an employee.
[16] Except in relation to juniors and apprentices.
Section 100 recognises that significant matters affecting terms and conditions of employment, including but not limited to wages and salaries, are determined at the national level. In these circumstances there is an evident purpose in South Australia adopting a nationally consistent approach to matters affecting terms and conditions of employment and the safety net of award wages and conditions. This is because there are a large number of employees in this State covered by awards made by the FWC. The enactment of s 100 recognises that the legislature considers it may be desirable that there is consistency in the terms and conditions of employment of employees in this State whether regulated by awards made by the FWC or awards made by the Tribunal.
I consider that in the scheme of the Act s 100 is facilitative. It provides a mechanism by which the Tribunal can effect a variation to an award or awards by the making of a declaration pursuant to s 100(1). It facilitates a variation to a specific award or awards, or to awards generally, or awards generally other than a specified award or awards, without the necessity to bring an application for a variation in respect of a specified award or awards, awards generally or a raft of awards. The provision being facilitative, I can see no justification for construing its terms narrowly by adopting a construction which would limit its effectiveness. Nonetheless, the conferral of power by the enactment of s 100(1) on the Tribunal to make a declaration is conditioned by the text of the provision which requires that a declaration must adopt, in whole or in part, and with or without modification, principles, guidelines, conditions, practices or procedures enunciated or laid down in, or attached to, a decision or determination of Fair Work Australia. The purpose of the section is derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the provision.[17] The requirement that the principles, guidelines, conditions, practices or procedures (principles et cetera) must be enunciated or laid down in, or attached to, a decision or determination of the FWC should be construed as requiring that the principles et cetera which are to be adopted in the declaration can be found either in a decision or determination of the FWC or outside the text of a decision or determination but attached to it.
[17] Certain Lloyd's Underwriters v Cross [2012] HCA 56 at [26], (2012) 248 CLR 378 at 390.
The requirement that the principles et cetera be enunciated or laid down in a decision or a determination of the FWC requires that the principle et cetera be found in the text of the decision or determination itself. In addition, the legislature must have intended the distinct concepts of “enunciated” and “laid down in” to have separate work to perform. I consider the distinction being drawn is between principles et cetera which are expressly set out in the text of the decision or determination and principles et cetera which are implicitly laid down in the text of the decision or determination. The concept of a principle et cetera being “enunciated” in the decision or determination strongly suggests that the principle et cetera must be found in the express words of the decision or determination. On the other hand, the concept of the principles et cetera being “laid down in”, standing in contrast to the concept of the principles being enunciated in the decision or determination, suggests that the principle et cetera can be found by implication in the interstices of the decision or determination.
By contrast, I would construe the requirement for the principles et cetera to be attached to a decision or determination of the FWC to mean that principle et cetera is to be found in a document such as an appendix or annexure to a decision or a determination of the FWC. It must be found in a text separate and distinct from the text of the decision or determination relied upon, but connected to that decision or determination by reference to the text of the decision or determination which identifies the attachment as being integrally connected to the decision or determination. It does not require the attachment to be physically attached to the decision or determination. It is sufficient that the document in which the principle et cetera is identified is expressly identified or referred to in the decision or determination of the FWC. Of necessity, the attachment must be a written document. However, the document could be paper or electronic.

The terms of s 100 are intractable. The Tribunal can only make a declaration where the declaration adopts, in whole or in part, and with or without modification, principles et cetera that are expressly or impliedly found in the text of a decision or determination of the FWC or found in the text of a document such as an appendix or annexure referred to in the text of the decision or determination of the FWC.
Consideration
In this case, the relevant decision is the decision of the Minimum Wage Panel of the FWC in its Annual Wage Review 2017/18.[18]
[18] [2018] FWCFB 3500.
Neither the principle identified by the Full Bench nor the principle for which the respondent contends is attached to the decision or determination of the FWC in the way I have explained. The Tribunal erred in concluding otherwise.
Accordingly, the appeal must be allowed unless a principle which justifies the declaration and orders made by the Tribunal on 1 May 2019 can be found in the express or implied terms of the FWC decision.
In my view it cannot.
The reason it cannot is apparent from a consideration of the principle identified by the Tribunal and the principle for which the respondent contends.
The principle identified by the Tribunal is that entitlements which are related to or fixed by reference to variations in minimum award rates are capable of adjustment as a consequence of the FWC annual wage review, if in the circumstances that is considered appropriate to maintain a fair and relevant minimum safety net of terms and conditions in accordance with s 134(1) of the Fair Work Act.[19] The Tribunal found that this principle, which included but extended beyond minimum wages, was open for adoption in the exercise of its discretion pursuant to s 100.
[19] State Wage Case 2018 [2019] SAET 65 at [31].
However the actual order made by the Tribunal, that the maximum loading to be applied to an employee during a period of recreation leave or pro rata recreation leave under clause 1.5.2 of the Award be increased by 3.5 per cent to the sum of $912.97, neither reflects nor is consonant with the principle the Tribunal identified as being attached to the decision of the FWC in its annual wage review. That is so even allowing for the terms of the Tribunal’s declaration, which purported to adopt “with modifications” the decision of the FWC.
The Tribunal failed to identify where in the text of the FWC decision this principle can be found.
The particular difficulty in the approach adopted by the Tribunal is that a principle et cetera that the maximum recreation leave loading should be increased by 3.5 per cent cannot be found in the text of the decision of the FWC, either expressly or impliedly. This is to be expected given that the decision of the FWC was unconcerned with the entitlement to recreation leave loading. It was concerned only to fix a national minimum wage and minimum wage rates under modern awards. Even allowing for the power of the Tribunal to make a declaration adopting a principle et cetera with modification, the principle adopted by the Tribunal in its decision must be capable of being identified or distilled from the text of the FWC decision. No principle relevant to fixing the maximum amount of recreation leave loading to be paid to an employee can be found in the text of the FWC decision, either expressly or by implication.
The reference in the Tribunal’s reasons to a principle attached to the review decision, that entitlements which are related to or fixed by reference to variations in minimum award rates are capable of adjustment as a consequence of the wage review to maintain a fair and relevant minimum safety net of terms and conditions, is unsupported by a consideration of the text of the FWC decision.
The attempt by the Tribunal to distil the principle it identified from the statutory framework within which the Minimum Wage Panel operates in conducting the annual wage review demonstrates error. That principle is not enunciated, laid down in or attached to the decision of the FWC. The statutory scheme of the Fair Work Act governs the conduct of the annual wage review but those statutory principles are not enunciated, laid down in or attached to the FWC decision.
The order made by the Tribunal on 1 May 2019 bears no relationship to the text of the FWC decision. Moreover, the principle identified by the Tribunal bears no relationship to the text of the FWC decision.
The obstacle to the making of the declaration and order of the Tribunal is also exposed by the principle for which the respondent contends. The respondent contends that there is a two-limbed principle derived from the FWC’s decision. The first limb is that award wages are to be increased by 3.5 per cent. That cannot be doubted given the terms of paragraph [490] of the decision set out earlier in these reasons. However, the respondent submits that the second limb of the principle that the monetary value of all award entitlements calculated by reference to award wages is also to be increased by 3.5 per cent is embedded or inheres in that same paragraph of the reasons of the FWC. I do not accept this submission. The paragraph is solely concerned with an increase in modern award minimum wages by 3.5 per cent.
While I accept that a principle can be found by implication from the text of a decision of the FWC for the purposes of s 100, the second limb of the principle for which the respondent contends is not laid down by implication in paragraph [490]. This is for a similar reason for rejecting the Tribunal’s conclusion that there was a principle which it adopted, with modifications, which provided for a 3.5 per cent increase in the amount of the maximum recreation leave loading payable to employees under the Award. The decision of the FWC was not concerned with increases in the monetary value of award entitlements other than the minimum rate of wages. That was hardly surprising given the statutory context in which the Minimum Wage Panel was acting. The Minimum Wage Panel was conducting an annual wage review pursuant to s 285 of the Fair Work Act. Section 285 requires that in undertaking an annual wage review, the Panel must review modern award minimum wages and the national minimum wage order. It may make determinations varying modern awards to vary minimum award wages and must make a national minimum wage order. There is no scope within the ambit of the operation of s 285 for the FWC to consider increases in other award entitlements such as recreation leave loading. In any event, express statutory provision is made in s 149 of the Fair Work Act for the automatic variation of allowances within modern awards when wage rates in those awards are varied. This renders it unnecessary for the FWC to consider adjusting allowances in modern awards pursuant to s 285. True it is that pursuant to s 284 of the Fair Work Act, the FWC in increasing modern award minimum wages must take into account the modern awards objective found in s 134 of the Fair Work Act. Section 134 includes providing a fair and relevant minimum safety net of terms and conditions. However, for the reasons I have already given, s 284 does not imply a principle that by reason of an increase in minimum wage rates in modern awards that the monetary value of all award entitlements calculated by reference to award wages is to be increased by the same percentage.
It follows that the condition precedent for the making of a declaration pursuant to s 100, namely, the existence of a principle either expressly stated or implied in the text of the decision of the FWC in its annual wage review, is not established. Recourse to considerations of context and purpose cannot dilute or abrogate that requirement.
Accordingly, I am satisfied that the Tribunal erred in making the declaration and order of 1 May 2019 in reliance upon s 100.
Nonetheless, the respondent submits that the Court should dismiss the appeal on the basis that s 90 conferred power on the Tribunal to vary the award to increase by 3.5 per cent the maximum amount of recreation leave loading. I do not accept this submission.
While I accept the underlying premise of the submission, namely, that it is within the jurisdiction of the Tribunal, pursuant to s 90 of the Act, to have varied the Award to increase by 3.5 per cent the maximum amount of recreation leave loading, the declaration and order of 1 May 2019 was not made in reliance upon s 90. On the contrary, the Tribunal expressly disavowed any reliance upon s 90 in making the impugned declaration and order.[20] While that may not have been an insurmountable obstacle to upholding the decision of the Tribunal, the exercise of the award variation power in s 90 is conditioned upon the terms of s 90(7) which provides that before exercising the award making power, the Tribunal must take reasonable steps to ensure that all persons who are bound by the award have been given a reasonable opportunity to appear and be heard before the Tribunal. Unsurprisingly, as the Tribunal was not proceeding in reliance upon s 90, no evidence was before it as to whether the requirement of s 90(7) was satisfied. This Court is in no position to be satisfied that there was compliance with s 90(7). It is a common rule award. It binds all employees in the public service whether members of an association or not.[21] The Court has no basis to be satisfied that all persons who are bound by the Award were given a reasonable opportunity to appear and be heard before the Tribunal.
[20] State Wage Case 2018 [2019] SAET 65 at [55].
[21] See clause 1.3.2 of the Award.
In the circumstances, I see no alternative other than to allow the appeal, set aside the declaration and order of the Tribunal made on 1 May 2019 and to remit the matter to the Tribunal to consider further whether it should make the order varying the Award by increasing the maximum amount of recreation leave loading in clause 1.5.2 by 3.5 per cent to the sum of $912.97, in accordance with s 90 of the Act.
Accordingly, the declaration and order made by the Tribunal on 1 May 2019 must be set aside. In the circumstances it is unnecessary to decide the remaining grounds of appeal.
Conclusion
I would grant permission to appeal on ground 3. I would allow the appeal. I would set aside the declaration and order made by the Tribunal on 1 May 2019. I would remit the matter to the Tribunal for further consideration in accordance with the reasons of the Court. I would hear the parties as to costs.
PARKER J: I would allow the appeal. I agree with the reasons of Stanley J and the orders that he proposes.