The Minister for Corrective Services applied to the Commission under s 46 of the IR Act seeking declarations concerning the meaning of express and implied terms in the Department of Justice Prison Officers’ Industrial Agreement 2020.

Section 46 allows the Commission to declare the true interpretation of an award, general order or industrial agreement while it is in force. Such a declaration is then binding on all courts and all persons with respect to the matter the subject of the declaration.

Minimum conditions of employment contained in the MCEA extend to and bind all employees and employers and are taken to be implied in industrial agreements. The first question the Commission was required to decide was whether s 46 was intended to give the Commission the power to declare the true interpretation of these implied terms.

Senior Commissioner Cosentino concluded that s 46 did not allow the Commission to declare the true interpretation of terms implied by statute. The Senior Commissioner observed that:

1. Section 46 expressly refers to instruments the Commission itself has made.
2. The power in s 46 to vary an instrument to give effect to the provision cannot be exercised in relation to terms implied by statute.
3. There is no policy reason that can be identified as to why the common law position, whereby judicial decisions on the interpretation of legislation in other jurisdictions are not binding on other courts, should be displaced.
4. The power in s 46 is to advance the Act’s object of providing for the observance and enforcement of agreements and awards, not for preventing and settling industrial disputes.
5. The rules that apply when construing an industrial agreement are different to the rules that apply when construing a statute.

The Senior Commissioner noted that this conclusion does not mean that the Commission cannot consider the true meaning of legislation as relevant context, as a step in construing an industrial agreement.

The Senior Commission therefore declined to make any declaration as to the true meaning of provisions of the MCEA but did go on to decide the true meaning of other provisions of the industrial agreement.

The decision can be read here.