134 Various alternative money claims were advanced and, as Schmidt J noted in her judgment, "each of which involved an improvement on the entitlement to payments which the applicants had on termination under the EA or the Award." It would appear that the appellants also sought compensation for the alleged humiliating treatment at the hands of the respondent and for "the harm done to the Applicants future prospects, their work reputation and their health, particularly having regard to the absence of apology from the Respondent for its unfair treatment of the employees as a result of deselection." Schmidt J referred to the alternative claims at [178] to [184] of her judgment as follows:
178 Two other alternative forms of money order were advanced. They were inserted into the summonses by way of amendment after the judgment given by Marks J. Compensation of $250,000 was claimed in Mr Burgess' case and different sums in the other applicants' summonses. How that sum was arrived at in each case was not made clear in the summonses.
179 Order 2 in Mr Burgess' summons provided:
In the alternative the Applicant claims the sum of $250,000 by way of compensation and/or the payment of money consequent upon the making of claimed orders 1 and 2 in paragraph A hereof.
180 In closing submissions, Mr Howells explained that this had regard to payment until age 65, as fair payment in respect of termination of employment in the circumstances which here arose, where there was a legitimate expectation of employment to age 65, subject to a number of potential exigencies not identified in detail, but including the possibility of an earlier retirement date. This, it was explained, was an appropriate basis for the monetary reparation sought, given the assurances in relation to seniority and job security which were contained in the Award and EA.
181 Order 3 in Mr Burgess' summons provided:
In the further alternative the Applicant claims the sum of $250,000 by way of compensation and/or the payment of money pursuant to claimed orders 3 and/or 6 and/or 7 in paragraph A hereof.
182 This, it was explained, referred to the claims made in paragraphs 3, 6, and 7 of the summonses. It was designed to meet the respondents' inconsistency arguments and had regard to the unusual contractual arrangement relied upon, which included the seniority provision and assurances about job security, contained in the Award and EA. The claim was said to have regard to the Court's wide discretion under the section to craft money orders, just in the circumstances of the case. It also included an interest component.
183 The alternative claims so advanced suffered from various difficulties, including the case of those applicants whose employment would not have continued, had the Award seniority provision been applied. Even more fundamentally however, the power to make money orders under s106(5), is a wide one, but must be exercised in accordance with the jurisdiction and in any event, as the High Court has observed, on a cautious basis. As Peterson J observed recently in McGowan v ABC :
However, as I understand s.106, there remains an obstacle which must defeat the summons. That is, by s.106(5), the power to make an order for the payment of money depends upon an underpinning order which affects "any contract declared wholly or partly void, or varied . . .". If the Court is unable, as the result of the constitutional protection afforded to a determination of the ABC, to make an order voiding in whole or in part or varying the contract, no order for a money payment can be made (See Reich at 83.1). Accordingly, conduct unfairness can, in a case such as this, give rise to no remedy.
184 In my view, those alternative claims, advanced on the basis explained, could not overcome the problems of inconsistency here arising. The first alternative effectively entirely removed the Award and EA rights to terminate employment, prior to age 65. That has an obvious discriminatory impact, as well as being startlingly inconsistent with the Award and EA provisions as to termination of employment. The second alternative, even though more difficult to understand, led to no different result. Obscurity cannot provide a basis for the view being reached that inconsistency is thereby avoided. Nor can it be ignored that this order too seeks payment of a considerable sum in addition to the money already paid in order to satisfy the Award and EA obligations. As a matter of discretion an award could not be made on such a basis.