Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2022] ICQ 23

Acts Interpretation Act 1954, s 14, s 20

Anti-Discrimination Act 1991

Industrial Relations Act 1999, s 135, s 140B, s 140BA, s 140C, s 140CA, s 140CB, s 140CC, s 140CD, s 140CE, s 140D, s 140EC, s 140F, s 140G, s 140GA, s 140GB, s 140GC, s 140GD, s 824, s 826, s 841, s 842, s 843, s 844, s 846, s 993, s 998

Industrial Relations Act 2016, s 261, s 424, s 557, s 995

Industrial Relations Bill 2016

Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013

Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015, s 839, s 840, s 841, s 842, s 843, s 846,

Industrial Relations (Tribunals) Rules 2011, r 180

Statutory Instruments Act 1992, s 7

Queensland Local Government Industry Award - State 2014

Queensland Local Government Industry Award - State 2017

Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83, followed

Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978, cited

Byrne v Australian Airlines Ltd (1995) 185 CLR 410, followed

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280, followed

Dyldam Developments Pty Ltd v Owners - Strata Plan 85305 [2020] NSWCA 327; (2020) 104 NSWLR 19, followed

Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472, followed

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, cited

Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 146 IR 37, cited

Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, followed

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, cited

House v The King (1936) 55 CLR 499, cited

In the matter of a Proposed Queensland Local Government Industry Award - State 2015 [2016] ICQ 6, related

Jacobs v One Steel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568, considered

Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees & Ors [2017] ICQ 002, related

Local Government Association of Queensland Ltd v Queensland Services, Industrial Union of Employees [2020] QIRC 065, related

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed

O'Toole v Charles David Pty Ltd (1990) 171 CLR 232, cited

Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, followed

Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476, cited

Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] QIRC 038, related

Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] ICQ 21, related

Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009, related

Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149, related

Re: Variation and renaming of a modern award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 186, related

R v Hickman; ex-parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, cited

Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263, cited

CJ Murdoch QC for the respondent instructed by Minter Ellison on 17 August 2020

W Friend QC with C Massey for the appellant on 3 June 2021 instructed by Hall Payne Lawyers

CJ Murdoch QC with D Fuller for the respondent on 3 June 2021 instructed by Minter Ellison

AW Duffy QC for the Minister for Education, Industrial Relations and Racing on 3 June 2021 instructed by Crown Law

A Fryberg for the Local Government Association of Queensland on 3 June 2021

J King for the Queensland Council of Unions on 3 June 2021

• [1] Ms Tania Peters (Ms Peters), a member of the appellant, Queensland Services, Industrial Union of Employees (the Union), is employed by the respondent, the Moreton Bay Regional Council (the Council). She challenges, on appeal, the decision of an Industrial Commissioner who found that, contrary to her claim, she had not been underpaid for work performed on Friday evenings and all day Saturday while working for the Council.[1]

• [2] In 2015, Ms Peters applied for the position of part-time library assistant with the Council.
• [3] At that time, the terms of employment for her position were governed by the Queensland Local Government Industry Award - State 2014 (the 2014 Award) and the Moreton Bay Regional Council certified agreement 2014 (EBA3).
• [4] EBA3 was certified on 16 December 2014. On 28 October 2019 a new agreement was certified (EBA4). On that date, EBA3 ceased to be in effect and EBA4 applied to Ms Peters' employment. No part of the Industrial Commissioner's decision turned on any provision of EBA3 or EBA4. For reasons which will emerge, the two certified agreements are critical to the resolution of the issues on appeal.
• [5] The 2014 Award categorises various different employees. It is common ground that Ms Peters is categorised in the "Administrative technical community service supervisory and managerial (other than Indigenous Councils) group" of the General Stream.[2]
• [6] Clause 15.3 of the 2014 Award provides, relevantly here:

"15.3 Spread of ordinary hours of duty - day workers

(a) (i) Subject to clause 15.4(a)(ii),[3] the spread of ordinary hours for day workers shall be 0600 to 1800 Monday to Friday, or other days of work, spread of ordinary hours and conditions as prescribed in the table in clause 15.3(iv) below.

(ii) Notwithstanding the spread of ordinary hours prescribed in clause 15.3(a)(i) and in the table in clause 15.3(iv) below, an employer and an employee or a group of employees (who may be represented by their local union delegate/s, their union officials or any other person authorised to represent them) may agree that:

(A) the ordinary hours of duty may be worked on any five out of seven days per week including Saturday and Sunday; and/or

(B) the prescribed spread of ordinary hours may be altered.

(iii) Consent to vary the days of ordinary duty or the spread of ordinary hours of duty shall not be unreasonably withheld by either party.

(iv) table: ...

Days of work, spread of ordinary hours and conditions

Employees in the Administrative, technical, community service, supervisory and managerial (other than Indigenous Councils) group of the General stream

• administrative and clerical employees working in customer call centres
• employees required to work unusual working hours not classed as shift work including:
  • employees employed at civic centres and theatres
  • Art Gallery Directors at Townsville City Council, Ipswich City Council and Noosa Shire Council, and employees who attend to the community development and welfare needs of the community

• 0600 to 2130, Monday to Friday and 0600 to 1200, Saturday
• hours of duty may be worked on any five days Monday to Saturday, both days inclusive, according to a roster which shall provide for two consecutive days off each week. ...

(b) The ordinary hours of duty of employees having workers under their immediate supervision shall, if so determined by the employer, be the same as the ordinary hours of duty of the workers being supervised.

(c) Where special circumstances, such as tidal or flood waters, unusual traffic flows or climatic conditions, necessitate work outside the spread of ordinary hours prescribed in clause 15.3(a)(i) of this Award on a particular job or project, such work may be performed outside the spread of ordinary hours without payment of overtime. However, the maximum number of ordinary daily hours of duty shall not be exceeded.

(d) Employees are required to observe the nominated starting and finishing times for the work day, including designated breaks, to maximise available working time. Preparation for starting and finishing work, including personal clean up, shall be in the employee's time." (emphasis added)

• [7] On 27 August 2015, Ms Peters was offered employment by the Council. The letter of offer was, relevantly, in these terms:

"I refer to your application for the above position and have pleasure in advising that your application was successful. I wish to offer you this position subject to the following conditions. ...

The terms and conditions of your employment will be governed by the Local Government Industry Award - State 2014 (Award), council's Enterprise Bargaining Agreement (EBA3) and relevant council policies.

This position is classified under the Administrative, Technical, Community Service, Supervisory and Managerial (other than Indigenous Councils) Group of the General Stream of the Award.

In accordance with Clause 15.3 'Spread of Ordinary Hours of Duty - Day Workers' of the Award, your ordinary hours of duty may be worked on any 5 out of 7 days per week, including Saturday and Sunday. For ordinary hours worked on a Saturday you will be paid at time and a quarter and on a Sunday you will be paid at time and a half of your applicable ordinary pay rate.

Your initial hours of duty are 11 hours per week, worked over 2 days in the following pattern:

Should you work additional hours on Saturday and/or Sunday, these hours would be beyond your ordinary hour's arrangement and as such, you will be paid the applicable penalties as outlined in the Award. ..." (emphasis added)

• [8] On 4 September 2015, Ms Peters accepted the offer of employment. The acceptance of Ms Peters of the offer of employment brought her contract of employment into existence. I will refer to the term of Ms Peters' employment where she and the Council agreed to her spread of working hours as "the Spread Agreement". She then began working for the Council.
• [9] At the time of the acceptance of the offer of employment, the Industrial Relations Act 1999 (the 1999 IR Act) was in force. The 2014 Award was made pursuant to the 1999 IR Act. It was a "modern award".[4]
• [10] By clause 18 of the 2014 Award, the Council could require Ms Peters to work overtime.[5] "Overtime" is time worked by an employee "in excess of their ordinary daily hours of duty or outside their spread of ordinary hours on a Monday to Friday".[6] Overtime attracts pay at a rate of time and one half for the first three hours and double time thereafter.[7]
• [11] By clause 15.4(a) of the 2014 Award, payment for ordinary hours worked on a Saturday attracts pay at a rate of time and one half regardless of how long is worked on the Saturday.
• [12] The effect of the Spread Agreement is to deem all time worked on Saturday as not overtime, but ordinary hours attracting a pay rate of time and one half. If the Spread Agreement is not legally effective, Saturdays would be overtime and Ms Peters has been underpaid. It is unnecessary to consider the rates of pay for Friday evenings.
• [13] The 2014 Award was then purported to be "varied". This occurred by replacing the entire terms of the award with new terms. I shall refer to the new terms as "the 2014 Award - Version 2". The 2014 Award - Version 2 operated from 1 September 2016. As explained later, there are issues as to the validity and effect of the 2014 Award - Version 2. The 2014 Award - Version 2 was purportedly made pursuant to provisions of the 1999 IR Act.
• [14] There are various differences in the terms of the 2014 Award and the 2014 Award - Version 2. Importantly though, the 2014 Award - Version 2 contained clause 15.1(b) in terms:

"(b) An employer and employee, who may be represented by an accredited union representative, may agree that the ordinary hours of duty may be worked on any five out of seven days per week including Saturdays and Sundays or the ordinary hours be altered as to the spread of hours."

• [15] Of some importance to the Industrial Commissioner's decision and the respondent's submissions, clause 15.1(b) of the 2014 Award - Version 2 is equivalent to clause 15.3(a)(ii) of the 2014 Award. It would clearly authorise (as did clause 15.3(a)(ii) of the 2014 Award) the making of the Spread Agreement.
• [16] Clause 18 of the 2014 Award - Version 2 adopted the overtime provisions in clause 15 of the 2014 Award.
• [17] Two significant Acts were passed amending the 1999 IR Act; the Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013 and the Industrial Relations (Restoring Fairness) and Other Legislation amendment Act 2015. The significance of those amendments are explained later.
• [18] On 1 September 2016, the Industrial Relations Bill 2016 was introduced into the Queensland Parliament. It was passed and received Royal Assent on 9 December 2016. It became the Industrial Relations Act 2016 (the 2016 IR Act). The provisions of the 2016 IR Act relevant to this appeal came into force on 1 March 2017.
• [19] The 2014 Award - Version 2 was purportedly revoked and replaced by the Queensland Local Government Industry Award - State 2017 (the 2017 Award)[8] as and from 28 February 2017; the day before the 1999 IR Act was repealed. The 2017 Award contained provisions which differed in various respects from the earlier awards, but it contained clause 15.1(c):

"(c) An employer and employee, who may be represented by an accredited union representative, may agree that the ordinary hours of duty may be worked on any five out of seven days per week including Saturdays and Sundays or that the ordinary hours may be altered as to the spread of hours."[9]

• [20] There is considerable doubt as to the status of the 2014 Award - Version 2 and the 2017 Award's impact upon it. The 2017 Award only acknowledges the 2014 Award, not the 2014 Award - Version 2. Section 995[10] of the 2016 IR Act refers to the 2014 Award[11] and "a modern award that replaced the [2014 Award]",[12] which could refer to either the 2014 Award - Version 2 or the 2017 Award.
• [21] The pay rates in the 2017 Award differ from the 2014 Award and the 2014 Award - Version 2. By clause 18.2(b), "All overtime worked on a Saturday or a Sunday shall be paid for at the rate of double time with a minimum payment as for 3 hours' work."
• [22] Again, clause 15.1(c) of the 2017 Award is virtually identical to clause 15.1(b) of the 2014 Award - Version 2, and equivalent to clause 15.3(a)(ii) of the 2014 Award. Clause 15.1(c) of the 2017 Award would authorise the making of the Spread Agreement.
• [23] Section 995 of the 2016 IR Act provides:

"995 Requirement to partition modern award for local government

(1) This section applies in relation to whichever of the following modern awards (the relevant award) was in effect under the repealed Act[13] immediately before the commencement -

(a) the Queensland Local Government Industry Award - State 2014;[14]

(b) a modern award that replaced the award mentioned in paragraph (a);[15]

(c) a modern award that replaced the modern award mentioned in paragraph (b).

(2) As soon as practicable after the commencement, the registrar must partition the relevant award by -

(a) terminating the relevant award; and

(b) making 3 replacement modern awards (the replacement awards).

(3) The replacement awards must each cover a group of employees described in the ministerial request as Stream A, Stream B or Stream C in relation to the Queensland Local Government Industry Award - State 2014.

(4) In partitioning the relevant award, the registrar may make any necessary provision to ensure wages and employment conditions for employees are not affected by the partitioning.

(5) A party to the relevant award is not entitled to be heard in relation to the partitioning of the award.

(6) When the registrar partitions the relevant award -

(a) the relevant award is taken to be revoked by the commission under chapter 3; and

(b) the replacement awards are taken to be modern awards made under chapter 3.

(7) As soon as practicable after partitioning the relevant award, the registrar must -

(a) give the parties to whom each replacement award applies notice of the making of the award; and

(b) publish the replacement awards on the QIRC website.

(a) section 150[16] does not apply to the revocation of the relevant award; and

(b) chapter 3, parts 1 and 2[17] and chapter 5, part 2, division 1[18] do not apply to the making of the replacement awards.

(9) If the relevant award is the Queensland Local Government Industry Award - State 2014, despite subsection (2) the registrar must not partition the relevant award until the review and variation of the award under old chapter 20, division 2 has been completed.

ministerial request means the variation notice given by the Minister to the commission under old section 140CA(1) on 6 June 2016.

replaced includes superseded." (emphasis added)

• [24] Section 995(9) is of significance. The "review and variation" of the 2014 Award under "old chapter 20, division 2" is the process which was completed by the making of the 2017 Award.
• [25] The 2017 Award was partitioned and operated as partitioned as and from 1 July 2017[19] (the Partitioned Award). The Partitioned Award provided by clause 15.1:

"(a) The ordinary hours of duty of employees covered by this Section shall be an average of 36.25 per week or 7.25 per day to be worked Monday to Friday, inclusive, between the hours of 0600 and 1800, except where the employer notifies the employee that they are to work their ordinary hours of duty in accordance with clause 15.1(e).

(b) The ordinary hours in clause 15.l(a) are to be worked on one of the following bases as agreed between the employer and the employees concerned:

(i) 36.25 hours within a work cycle not exceeding 7 consecutive days; or

(ii) 72.5 hours within a work cycle not exceeding 14 consecutive days; or

(iii) 108.25 hours within a work cycle not exceeding 21 consecutive days; or

(iv) 145 hours within a work cycle not exceeding 28 consecutive days.

(c) An employer and employee, who may be represented by an accredited union representative, may agree that the ordinary hours of duty may be worked on any five out of seven days per week including Saturdays and Sundays or that the ordinary hours may be altered as to the spread of hours.

(d) Ordinary daily hours shall be worked continuously with an unpaid meal break of not less than 30 minutes or more than 60 minutes to commence no later than 5 hours after starting each day.

(e) (i) The ordinary hours of duty of employees covered by this Section having other workers under their immediate supervision shall, if so determined by the employer, be the same as the ordinary hours of the workers supervised, subject to the conditions prescribed in clauses 13.5(a) and 15.l(e)(iii).

(ii) The provisions of clause 15.l(e)(i) shall not apply to employees holding professional qualifications and, for the purpose of this clause, Engineering Surveyors shall be deemed to be included in that category.

(iii) Where it is necessary to establish an hourly rate for the purpose of calculating overtime, notwithstanding the ordinary hours of duty pursuant to clause 15.l(e)(i) , the divisor used shall be 36.25." (emphasis added)

• [26] Clause 15.1(c) of the Partitioned Award is in identical terms to clause 15.1(c) of the 2017 Award, almost identical to the 2014 Award - Version 2 and equivalent for practical terms to the 2014 Award.
• [27] What can be seen is that the Spread Agreement was authorised by the 2014 Award, and that each of the 2014 Award - Version 2, the 2017 Award and the Partitioned Award also authorised the making of the Spread Agreement or an agreement of like effect.
• [28] The appellant still works for the respondent as a part-time senior librarian assistant.
• [29] The position taken by the Union before the QIRC was:

(a) the Spread Agreement was not valid when made;

(b) if the Spread Agreement was valid, it ceased to have effect upon the revocation of the 2014 Award by the making of the 2014 Award - Version 2.

• [30] In other words, from 1 September 2016, Ms Peters is entitled to have her pay calculated by reference to any relevant award, be it the 2014 Award - Version 2, the 2017 Award, or the Partitioned Award and without reference to the Spread Agreement.
• [31] It is unnecessary to consider the Union's argument that the Spread Agreement was not valid when made. That submission was not successful before the QIRC and is not pressed on appeal.
• [32] The Union's argument in support of the second position taken by it before the QIRC was that:

(a) clause 15.3 of the 2014 Award provides for the spread of hours of duty of employees;

(b) clause 15.3(a)(ii) of the 2014 Award is a facilitative provision which enables the employer and employees to vary the spread of hours otherwise applicable to the award;

(c) the Spread Agreement is a facilitative agreement made pursuant to the facilitative provision in the 2014 Award and applies to vary the award conditions. It follows that if the 2014 Award falls, so does the Spread Agreement;

(d) therefore, from 1 September 2016, Ms Peters is entitled to have her pay calculated by reference to any relevant award and without reference to the Spread Agreement.

• [33] The Council met the Union's case that the Spread Agreement fell with the 2014 Award with three submissions to the QIRC:

(a) As all the awards authorised the Spread Agreement, it continued to apply.

(b) The 2014 Award - Version 2 was not validly made so that the 2014 Award continues to apply notwithstanding the 2014 Award - Version 2.

(c) The 2017 Award and the Partitioned Award were not validly made so the 2014 Award is in force and the Spread Agreement is still operative.

• [34] After finding that the Spread Agreement was validly entered into (a finding which is no longer contentious), the Industrial Commissioner found that it applied to all the awards, notwithstanding the apparent fall of the 2014 Award on 1 September 2016, when the 2014 Award - Version 2 came into effect.[20]
• [35] In drawing that conclusion, the Industrial Commissioner accepted two submissions advanced by the Council:

[29] There is some force in the Council's submission that, for the introduction of the Interim[21] or 2017 Award to have the effect of automatically vitiating the validity of all extant agreements forged under the previous Award like Ms Peters', clear and emphatic language of that intention might have been expected.

[30] In this regard, I note there is no inconsistency between the terms of the 2014 Award and the Interim Award which suggest the Agreement was to be rendered invalid by implication. The Union, in part, hangs its hat on the removal of the table of rates of payment. On that basis alone, I am not prepared to conclude that the drafter(s) desired the outcome for which the Union contends.

[35] I agree with the Council's alternative submissions that an agreement varying Ms Peters' ordinary hours existed between herself and the Council at the time the Interim Award came into effect. Likewise, the same agreement existed between Ms Peters and the Council by the time the Interim Award was replaced with the 2017 Award and later, the 2017 partitioned Award.

[36] The relevant clauses, in so far as they relate to an employee varying their hours to work any five out of seven days per week, including Saturdays and Sundays, have consistently appeared in the previous 2014 Award, the Interim Award, the 2017 Award and the 2017 partitioned Award.

[37] As such, I am satisfied the Agreement between Ms Peters and the Council that her ordinary hours may be worked on any 5 out of 7 days per week, including Saturday and Sunday, continued to be valid after 1 September 2016. ..."[22]

• [36] The Industrial Commissioner dealt with the Council's second argument, namely that the later awards were invalid as follows:

[55] It is unnecessary and inappropriate for the Commission, in the context of arbitrating a dispute concerning a single employee's remuneration, to delve into whether the variation of an Award, effected over three years ago, and since replaced, was statutorily compliant. If the Council had such concerns, it ought to have been raised while the Interim Award was operative or, for instance, by way of an application for a Declaration as to its invalidity. ..."[23]

• [37] It is unnecessary to set out the grounds of appeal. What was challenged by the Union was the finding that the Spread Agreement continued to apply notwithstanding the apparent fall of the 2014 Award.
• [38] In responding to the appeal, the Council defended the Industrial Commissioner's finding that the Spread Agreement applied to all the various awards. Secondly, the Council submitted that the judgment of the QIRC could be supported on other grounds. It submitted:

Other matters - Invalidity of the Interim Award

1. The Industrial Commissioner dealt with the Respondent's alternative submission in relation to the invalidity of the Interim Award[24] at [50]-[57].
2. The Respondent accepts it would be unnecessary and potentially inappropriate for the Court to resolve the matter of the validity of the Interim Award in the context of these proceedings, given there are so many other stakeholders who would be affected by and would need to be given an opportunity to be heard on that issue.
3. Nor is consideration of this issue necessary for the disposition of the Appeal in the Respondent's favour. Therefore, the Respondent does not press this aspect of its submissions in the appeal, however otherwise reserves its position in relation to the validity of the Interim Award for any future purpose. ..."

• [39] That submission is, to say the least, ambiguous. At least on one reading of it, the Council's decision not to press the invalidity of the 2014 Award - Version 2 is made on the assumption that the Industrial Commissioner's view that the Spread Agreement survived the 2014 Award - Version 2 would be upheld on appeal.
• [40] The appeal was heard on 17 August 2020. No oral argument was advanced concerning the validity or otherwise of the various awards. Given the fact that the Council's written submissions were not an emphatic abandonment of the submission made to the QIRC that the later awards were invalid, I caused the matter to be mentioned.
• [41] On 23 November 2020, at the hearing of the mention, concern was raised that if the awards (including the 2014 Award - Version 2) were invalid then EBA4, made pursuant to the 2017 Award, may also be invalid. The Council told the Court at the mention that the challenge to the awards made after the 2014 Award was not abandoned.
• [42] What was therefore in issue on the appeal was the validity of the 2014 Award - Version 2, the 2017 Award, the Partitioned Award and EBA4. Those issues concerned the rights of thousands of local government employees arising over a period of some four and a half years.
• [43] On 26 November 2020, I made directions for the further hearing of the appeal[25] including that a number of parties who may have an interest in the validity of the awards and EBA4 be notified of the appeal and be invited to make submissions and be heard on the appeal.[26]
• [44] Various written submissions were received. The appeal was heard further on 3 June 2021. Oral submissions were made on behalf of the Union, the Council, the Minister for Education, Industrial Relations and Racing (the Minister), the Local Government Association of Queensland (the Local Government Association) and the Queensland Council of Unions (the Council of Unions). All parties who made oral submissions had previously filed written submissions.
• [45] During the hearing of the appeal, the Council:

(a) maintained its attack upon the validity of the 2014 Award - Version 2;

(b) maintained its attack upon the validity of the 2017 Award and the Partitioned Award;

(c) made it clear that there was no challenge by it to EBA4.

(a) no challenge to the awards ought to be entertained as that would constitute an unjustifiable collateral attack upon them;

(b) in any event, the awards are all valid.

• [47] The Minister submitted that each of the awards were valid.
• [48] The Local Government Association submitted that:

(a) the Spread Agreement survived the termination of the 2014 Award and applied throughout Ms Peter's employment;

(b) whether the awards were valid or not, EBA4 is valid.

• [49] The Council of Unions submitted that no collateral attack upon the awards or EBA4 should be entertained.
• [50] The questions on appeal then became:

(a) Does the Spread Agreement fall with the 2014 Award?

(b) Should a collateral attack on the 2014 Award - Version 2 be entertained?

(c) If so, was the 2014 Award - Version 2 validly made?

(d) Should a collateral attack on the 2017 Award or the Partitioned Award be entertained?

(e) If so, were the 2017 Award and the Partitioned Award validly made?

(f) What is the effect of any findings on these issues?

• [51] An appeal to this court from the QIRC is by s 557 of the 2016 IR Act. An appeal may only be grounded in an error of law or jurisdiction except by leave.[27]
• [52] Whether or not the Spread Agreement falls with the award is determined upon the proper construction of the 2014 Award and the contract of employment against the context of the 1999 IR Act. The construction of documents is a matter of law. Consequently, any error by the Industrial Commissioner on the construction of the award and/or the contract of employment is an error of law and therefore appellable as of right under s 557 of the 2016 IR Act.
• [53] Terms and conditions of employment may originate from many sources: statute, industrial instruments or contractual agreements.[28] Ms Peters' agreement to the spread of hours is clearly part of her contractual bargain, but against the backdrop of the 2014 Award and the statute.
• [54] Ms Peters' employment was governed by the 2014 Award except to the extent that EBA3 was inconsistent with the award and except to the extent that she could contract out of the award.[29] By clause 15.3(a)(ii) of the 2014 Award, Ms Peters could lawfully contract to work ordinary hours[30] any five out of seven days. She did that by making the Spread Agreement.
• [55] The Industrial Commissioner approached the issue by considering the terms of the 2017 Award. She thought that if either the 2014 Award - Version 2 or the 2017 Award were to vitiate the Spread Agreement, "clear and emphatic language" was required in those awards.[31] In my respectful view, the starting point for the analysis is not the 2014 Award - Version 2 or the 2017 Award, but the contract of employment which contains the Spread Agreement. It is necessary to consider what Ms Peters agreed to before considering how the introduction of subsequent awards may or may not have affected that agreement.
• [56] As already observed, clause 15 of the 2014 Award sets the ordinary hours of work and then provides that the employer and employee may vary those hours by agreement. The clear intention of clause 15.3(a)(ii) is to enable the parties to contractually vary the operation of the award.
• [57] There is nothing in the 2014 Award to suggest that the parties' agreement to the variation of "spread of ordinary hours" is to bind them in relation to some later award. There is nothing in the contract of employment to suggest that any agreement on the spread of hours is being made in relation to any award other than the 2014 Award. The contract of employment specifically refers to the 2014 Award. Specific reference is made to clause 15.3, a clause appearing in the 2014 Award. What is contemplated is a variation of the terms of the 2014 Award as allowed by clause 15.3 of that award.
• [58] The Spread Agreement is a "facilitative agreement" made pursuant to a "facilitative provision" (clause 15.3(a)(ii)).[32] The 2014 Award provides for both "individual flexibility arrangements" and "facilitative award provisions". Clause 6.1 of the 2014 Award concerns "individual flexibility arrangements" and then clause 6.2 provides:

"6.2 Procedures to implement facilitative award provisions

Wherever facilitative provisions appear in this Award which allow for determination of the conditions of employment by agreement between the employer and the majority of employees affected, the following procedures shall apply:

(a) Facilitative award provisions can be negotiated between management and employees who are directly affected by such proposals.

(b) Employees may be represented by their local union delegate/s, their union official/s or any other person authorised to represent them.

(c) In determining the outcome from facilitative provisions, neither party should unreasonably withhold agreement.

(d) Agreement is defined as obtaining consent of greater than 50% of employees directly affected.

(e) Any agreement reached must be documented, and shall incorporate a review period."

• [59] A facilitative provision such as that in clause 15.3(a)(ii) of the 2014 Award can only operate within the terms of the award in which it is contained. The notion that an agreement made under the 2014 Award is binding in relation to later awards which themselves have to undergo the process for making awards provided by Chapters 5 and 5A of the 1999 IR Act or Chapter 3 of the 2016 IR Act is contrary to the scheme of both Acts. See generally the observations of Merkel J in Finance Sector Union of Australia v Commonwealth Bank of Australia.[33]
• [60] It may be that awards made and certified could contain provisions incorporating agreements made pursuant to facilitative provisions contained in earlier awards. There is nothing in the 2014 Award - Version 2, the 2017 Award, the Partitioned Award or EBA3 or EBA4 which raises this issue for consideration.
• [61] In my view, the Spread Agreement will not apply to any award other than the 2014 Award.

Validity of the 2014 Award - Version 2 and should a collateral challenge to it be allowed?

• [62] It is best to turn firstly to aspects of the validity or otherwise of the 2014 Award - Version 2 before considering whether the Council's challenge to its validity constitutes a collateral attack and, if so, whether that attack ought to be entertained in the current proceedings.
• [63] In 2013 at a time when the 1999 IR Act was in force, the Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013 was passed. It introduced the modernisation of awards by amending Chapter 5 of the 1999 IR Act and enacting Chapter 5A.
• [64] The following provisions were within Chapter 5 of the 1999 IR Act:[34]

(a) either -

(i) made under section 125[35] as in force before the commencement of this part; or

(ii) continued in force under this Act; and

(b) in force immediately before the commencement of this part.

The principal object of this part is to provide for the modernisation of awards so they -

(a) are simple to understand and easy to apply; and

(b) together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees; and

(c) are economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and

(d) are in a form that is appropriate for a fair and productive industrial relations system; and

(e) result in a certain, stable and sustainable modern award system for Queensland.

140C Minister may make award modernisation request

(1) The Minister may give the commission a written notice (an award modernisation request) requesting that an award modernisation process be carried out.

(2) An award modernisation request must state -

(a) details of the award modernisation process that is to be carried out; and

(b) the day by which the process must be completed.

(3) The day stated in the notice under subsection (2) (b) must not be later than 2 years after the day on which the award modernisation request is given to the commission.

(4) An award modernisation request may state any other matter about the award modernisation process the Minister considers appropriate.

(5) Without limiting subsection (4), the award modernisation request may -

(a) require the commission to -

(i) prepare progress reports on stated matters about the award modernisation process; and

(ii) make the progress reports available as stated in the request; or

(b) state permitted matters about which provisions must be included in a modern award; or

(c) direct the commission to include in a modern award terms about particular permitted matters; or

(d) give other directions about how, or whether, the commission must deal with particular permitted matters.

(6) In this section -

permitted matter means a matter about which provisions may be included in a modern award under chapter 2A, part 3, division 1 or 2.

(1) Before an award modernisation process is completed, the Minister may vary the award modernisation request by written notice (a variation notice) given to the commission.

(2) Without limiting subsection (1), a variation notice may extend the day by which the award modernisation process must be completed.

140CB Publication of award modernisation request or variation notice

(1) This section applies if either of the following is given to the commission under this part -

(a) an award modernisation request;

(b) a variation notice.

(2) As soon as practicable after the request or notice is given to the commission, the registrar must publish the request or notice on the QIRC website.

Subdivision 2 Procedure for modernisation process

140CC Procedure for carrying out modernisation process

(1) The commission must carry out the award modernisation process in accordance with the award modernisation request.

(2) Subject to subsection (1) -

(a) the commission may decide the procedure for carrying out the award modernisation process; and

(b) without limiting paragraph (a), the commission may inform itself in any way it thinks appropriate, including by consulting with any person, body or organisation in the way the commission considers appropriate.

(3) To remove any doubt, it is declared that subsection (2) does not limit the powers of the commission under any other provision of this Act.

140CD Deadline for completion of award modernisation process

(1) The commission must complete an award modernisation process by -

(a) the day stated in the award modernisation request relating to the process; or

(b) if a variation notice states a later day by which the process must be completed - the stated day.

(2) For subsection (1), the award modernisation process is completed when 1 or more modern awards are made to give effect to the outcome of the process.

140CE Making of modern awards and repeal of pre-modernisation awards

(1) To give effect to the outcome of an award modernisation process, the commission must -

(a) make 1 or more modern awards; and

(b) under section 125, repeal the pre-modernisation awards to which the process relates on a stated day determined by the commission, having regard to section 824.

(2) The commission must ensure each relevant class of employees -

(a) is covered by a modern award; or

(b) would be covered by a modern award but for the effect of section 140E (2).

(3) Subject to chapter 2A, part 3 and chapter 5A, a modern award made for the purposes of subsection (1) must be consistent with the award modernisation request to which the modern award relates.

(4) In this section -

relevant class of employees means a class of employees who were bound by a pre-modernisation award that is repealed to give effect to the outcome of the award modernisation process."

• [65] Section 140B defined "pre-modernisation award" as an award which was in force before the commencement of the 2013 amendments; in other words, all awards then in force. The amendments to Chapter 5 came into effect on 1 December 2013.
• [66] By s 140C, the modernisation process was commenced by the Minister making a "modernisation request". The outcome of the modernisation process commanded by the modernisation request must be the results prescribed by s 140CE.
• [67] Chapter 5A concerns "modern awards".[36] Section 140D provided:

(1) In exercising its chapter 5A powers, the commission must ensure modern awards, together with the Queensland Employment Standards, provide a minimum safety net of employment conditions that is fair and relevant.

(2) For subsection (1), the commission must have regard to the following -

(a) relative living standards and the needs of low-paid employees;

(b) the need to promote social inclusion through increased workforce participation;

(c) the need to promote flexible modern work practices and the efficient and productive performance of work;

(d) the need to ensure equal remuneration for male and female employees for work of equal or comparable value;

(e) the need to provide penalty rates for employees who -

(i) work overtime; or

(ii) work unsocial, irregular or unpredictable hours; or

(iii) work on weekends or public holidays; or

(iv) perform shift work;

(f) the likely impact of the exercise of the chapter 5A powers on business, including on productivity, employment costs and the regulatory burden;

(g) the need to ensure the modern award system -

(i) is simple and easy to understand; and

(ii) is certain, stable and sustainable; and

(iii) avoids unnecessary overlap of modern awards;

(h) the financial position considerations, including the likely impact of the exercise of the chapter 5A powers on those considerations;

(i) the likely impact of the exercise of the chapter 5A powers on -

(i) employment growth and inflation; and

(ii) the sustainability, performance and competitiveness of the Queensland economy.

(3) Also, to the extent the commission's chapter 5A powers relate to setting, varying or revoking minimum wages in modern awards, the commission must establish and maintain a minimum safety net of fair minimum wages, having regard to -

(a) the matters mentioned in subsection (2) (a) to (d), (h) and (i); and

(b) providing a comprehensive range of fair minimum wages to -

(i) young employees; and

(ii) employees engaged as apprentices or trainees; and

(iii) employees with a disability.

(4) The objectives of the commission under subsections (1) and (2) are the modern awards objectives.

chapter 5A powers means powers or functions of the commission under this chapter."

• [68] Part 2 of Chapter 5A deals with the coverage and operation of modern awards, and then Part 3 concerns "making, varying and revoking modern awards". Section 140F[37] concerns "periodic reviews of modern awards".
• [69] Section 140G then provides:

"140G Powers may be exercised to achieve modern awards objectives

(1) The commission may, other than for the purposes of a periodic review -

(a) make a determination varying a modern award; or

(b) make a modern award; or

(c) make a determination revoking a modern award.

(2) The commission may exercise a power under subsection (1) only if the commission is satisfied -

(a) that making the determination or modern award other than for the purposes of a periodic review is necessary to achieve the modern awards objectives; and

(b) for a variation of the rates of minimum wages in a modern award - the variation is justified by work value reasons.

(3) The commission may exercise a power under this section -

(a) on its own initiative; or

(b) on application under section 140GA."

• [70] Section 140GA prescribes whom may apply for orders under s 140G, namely:

"140GA Application to vary, revoke or make modern award under s 140G

(1) This section provides for who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under section 140G.

(2) An application to vary, omit or include provisions, other than coverage provisions, in a modern award or an application to revoke a modern award may be made by -

(a) an employer, employee or organisation to which the award applies; or

(b) an organisation whose rules entitle it to represent the industrial interests of 1 or more employers or employees to whom the award applies.

(3) An application to vary or include coverage provisions in a modern award to extend the coverage of the award to include additional employers, employees or organisations may be made by -

(a) an employer, employee or organisation that the award would start applying to; or

(b) an organisation whose rules entitle it to represent the industrial interests of 1 or more employers or employees whom the award would start applying to.

(4) An application to vary or omit coverage provisions in a modern award so it stops applying to employers, employees or organisations may be made by -

(a) an employer, employee or organisation the award would stop applying to; or

(b) an organisation whose rules entitle it to represent the industrial interests of 1 or more employers or employees whom the award would stop applying to.

(5) An application for the making of a modern award may be made by -

(a) an employee or employer to whom the award would apply; or

(b) an organisation entitled to represent the industrial interests of 1 or more employers or employees to whom the award would apply.

(6) Subject to subsections (1) to (5), an applicant may make applications for 2 or more related things at the same time.

An applicant may apply for the making of a new modern award and the related revocation of an existing modern award.

• [71] Various provisions follow ss 140G and 140GA. Section 140GB concerns variations to modern awards "to update or omit name of the employer or organisation". Section 140GC is a "slip rule" provision. It concerns variations "to remove ambiguity or uncertainty or to correct error". Section 140GD concerns variations made on the application of the Anti-Discrimination Commission.[38]
• [72] Sections 824 and 826 of the 1999 IR Act provided as follows:

"824 Modern award does not apply to employee covered by continuing agreement or determination

(1) A modern award does not apply to an employee, or to an employer or employee organisation in relation to the employee, at any time when the employee is covered by a continuing agreement or determination.

continuing agreement or determination means either of the following to which section 826 applies -

(a) a certified agreement;

(b) an arbitration determination under chapter 6." (emphasis added)

"826 Certified agreements and determinations continue

(1) A certified agreement or determination, in force immediately before the introduction day, continues in force as a certified agreement or determination under this Act.

determination means an arbitration determination under chapter 6." (emphasis added)

• [73] The "introduction day" is the day the Bill for the Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013 was introduced into the Legislative Assembly.[39] This was a time before EBA3 was certified. It was certified on 16 December 2014.
• [74] Section 841(3) refers to s 140CC which was a provision inserted by amendment into Chapter 5. It provides:

"140CC Procedure for carrying out modernisation process

(1) The commission must carry out the award modernisation process in accordance with the award modernisation request.

(a) the commission may decide the procedure for carrying out the award modernisation process; and

(b) without limiting paragraph (a), the commission may inform itself in any way it thinks appropriate, including by consulting with any person, body or organisation in the way the commission considers appropriate.

(3) To remove any doubt, it is declared that subsection (2) does not limit the powers of the commission under any other provision of this Act."

• [75] By the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015, Chapter 20, Part 20 was introduced. Relevantly here:

amended Act means this Act as amended by the amending Act.

amending Act means the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 .

pre-amended Act means this Act as in force immediately before the commencement.

relevant certified agreement means a certified agreement that is -

(a) a modern industrial instrument; and

(b) certified by the commission before the commencement.

relevant modern award means a modern award made by the commission before the commencement.

relevant pre-modernisation award, in relation to a relevant modern award, means a pre-modernisation award that applied to all or some of the employees to whom the relevant modern award applies.

(a) to provide for the review and variation by the commission of modern awards made, under the award modernisation process, before the commencement; and

(b) to ensure the awards mentioned in paragraph (a) are not inconsistent with the amended Act.

1. Commission must review and vary relevant modern

(1) This section applies to a relevant modern award if the Minister gives the commission a variation notice under section 140CA in relation to the award modernisation process.

(2) The commission must review the relevant modern award and vary it under this division as soon as practicable after receiving the variation notice.

(3) For reviewing the relevant modern award under this division -

(a) the commission must carry out the review in accordance with section 140CC; and

(b) section 140CE and chapter 5A, part 3 do not apply.

(4) The award modernisation process under which the relevant modern award was made continues for the purpose of enabling the award to be reviewed and varied under this division.

1. Requirements for review of relevant modern award

(1) In reviewing a relevant modern award under this division, the commission must vary the award to remove -

(a) a provision required to be included by repealed section 71M, 71MA or 71MB; and

(b) any provision ancillary to a provision mentioned in paragraph (a).

clause 8.2 of the Queensland Public Service Officers and Other Employees Award - State 2014

(2) Also, the commission must vary the relevant modern award to include a provision that was in a relevant pre-modernisation award about any of the following -

(a) union encouragement;

(b) union delegates;

(c) industrial relations education leave or trade union training leave;

(d) right of entry;

(e) prevention and settlement of disputes, including employee grievance procedures;

(f) termination, change and redundancy.

(3) For subsection (2), the commission may amend the provision for insertion in the relevant modern award as the commission considers appropriate having regard to -

(a) the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and

(b) the modern awards objectives under section 140D; and

(c) in relation to a provision mentioned in subsection (2) (e) - the requirements under section 71MCA.

provision, of a relevant pre-modernisation award, includes a provision of the award that was of no effect because of repealed chapter 15, part 2

(1) The commission may vary a relevant modern award to provide for a matter contained in a relevant pre-modernisation award.

(2) For deciding whether to vary the relevant modern award under subsection (1), the commission must have regard to -

(a) the provisions permitted to be included in a relevant modern award under section 71ND; and

(b) the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and

(c) the modern awards objectives under section 140D; and

(d) a submission made by a party covered by the relevant modern award about the proposed variation.

1. Application of variation of relevant modern award

(1) A variation of a relevant modern award made under this division applies to an employee who is a party covered by the award if -

(a) the variation is in operation; and

(b) one of the following applies -

(i) the employee is covered by a certified agreement that is certified after the variation comes into operation;

(ii) the employee is covered by a determination that is made after the variation comes into operation;

(iii) if the employee is not covered by a certified agreement on the day the variation comes into operation - the day the variation comes into operation or, if the commission states a later day in the determination varying the award, the stated day.

(2) Subsection (3) applies to an employee who was covered by a relevant certified agreement immediately before the commencement.

(3) To remove any doubt, it is declared that the pre-variation modern award continues to apply to the employee until the variation of the relevant modern award starts applying to the employee under subsection (1).

For an employee who was not covered by a relevant certified agreement before the commencement, other than an employee mentioned in subsection (1) (b) (iii), see section 824.

pre-variation modern award means the relevant modern award as it read immediately before the commencement. ..." (emphasis added)

• [76] As earlier observed, the 2014 Award is a modern award. It was the result of a process initiated by the Minister's request for award modernisation[40] and undertaken under Chapter 5 of the 1999 IR Act.
• [77] Requests were made by the Minister pursuant to s 841 and that all came before the QIRC on 31 August 2016. This was a process undertaken under Chapter 20, Part 20 to review and vary a modern award, namely the 2014 Award. It was not a process to modernise a pre-modernisation award.
• [78] Deputy President Bloomfield "varied" the 2014 Award by replacing it completely with the 2014 Award - Version 2 for the following reasons:

Whereas the Minister for Employment and Industrial Relations issued a Variation Notice pursuant to section 140CA of the Industrial Relations Act 1999 (the Act) on 6 June 2016 requiring the Commission to review and vary the above Award in accordance with the provisions of Chapter 20, Part 20, of the Act to produce a new Modern Award to be known as the Queensland Local Government Industry Award - State 2016 (the 2016 Award) by 31 August 2016, and

whereas the Commission will be unable to review and finalise the whole of the contents of the 2016 Award in accordance with the provisions of Chapter 20, Part 20, of the Act by the required date in a way which will satisfy the obligations imposed on it pursuant to section 140D of the Act, and

whereas the Commission proposes to act on its own initiative, pursuant to section 140G of the Act, to vary the terms of the Queensland Local Government Industry Award - State 2014 (the 2014 Award) so as to produce an (interim) Award which will substantially comply with the terms of the Minister's Variation Notice and allow the Commission and the interested parties a short period of grace to review and finalise the content of the 2016 Award in accordance with the provisions of section 140D and Chapter 20, Part 20, of the Act..."

• [79] The QIRC had no power to make the "variation" which purported to introduce the 2014 Award - Version 2.
• [80] It is clear from the Deputy President's reasons that he was considering a review of the 2104 Award initiated pursuant to Chapter 20, Part 20 of the 1999 IR Act. The determination itself refers to the variation notice which had been given pursuant to Chapter 20.
• [81] Chapter 20, Part 20 contains transitional provisions. The provisions invoke Chapter 5. Under s 841,[41] a notice is given pursuant to s 140CA, directing a review pursuant to s 140CC (Chapter 5). However, the review must be conducted pursuant to ss 841-844 and 140CC.
• [82] Importantly, under s 140CC, "the commission must carry out the award modernisation process in accordance with the award modernisation request".[42] That may seem strange given that the 2014 Award is and has always been a "modern award". The point though of Chapter 20, Part 20 is that the modernisation process is continuing and does continue when a variation notice is given to the QIRC pursuant to s 841.
• [83] Under s 843, there is a power to vary a modern award, but that power is limited (relevantly to present purposes) to variations justified after "regard" has been had to the "modern awards objectives" under s 140D.
• [84] The Deputy President sought to vary the 2014 Award using the power granted by s 140G. It is difficult to see how s 140G operates during the process instigated under Chapter 20, Part 20 given the specific powers of ss 842 and 843. In any event, the exercise of power under s 140G is to "achieve the modern awards objectives".[43] The determination of the Deputy President says that the purported exercise by him of the power vested in the QIRC by s 140G is so as to "allow the Commission and the interested parties a short period of grace to review and finalise the contents of the 2016 Award in accordance with the objectives of s 140D and Chapter 20, Part 20 of the Act". The power under s 140G has therefore been exercised not with a view to bringing into effect an award that complies with the modernisation objectives, but to enact some stop gap while the objectives are evaluated. The power vested by s 140G cannot be used in that way.
• [85] Extensive submissions were made by the Council, the Union and the Minister on the question of collateral challenge to the awards.
• [86] The present case does not give rise to a collateral challenge in the sense that term is generally used.[44] While the point has arisen in proceedings where the primary object is not the setting aside of the award, the proceedings are being litigated in a court which has power to set aside the award on appeal[45] and to set aside the award in exercise of prerogative powers.[46] In most cases which have considered collateral attacks upon administrative decisions, the court is considering finding the decision invalid but not exercising judicial power to set it aside. Here, the court has power to set the award aside either by way of an appeal mounted with the benefit of an extension of time, or by prerogative order.
• [87] Further, collateral attacks are often mounted in cases where not all the parties who have an interest in the decision being challenged are present. The Council was effectively represented at the making of the 2014 Award - Version 2 by the Local Government Association.[47] All relevant parties were represented at the current appeal.
• [88] The High Court has, on various occasions, considered collateral attacks upon administrative decisions. There is no doubt that jurisdiction to entertain such arguments exist.[48] What is less clear is when circumstances will be such as to justify a court considering a collateral attack. There is no definitive statement of the High Court identifying the relevant principles.
• [89] Justice Besanko, sitting in a court of five judges in Jacobs v One Steel Manufacturing Pty Ltd,[49] thought the matter was one of discretion.
• [90] After referring to two academic papers,[50] his Honour thought the relevant factors in exercise of the discretion included the following:

1. Are the grounds of challenge likely to involve the adducing of substantial evidence?
2. If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
3. In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
4. Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5. Is the issue raised by the collateral challenge clearly answered by authority?
6. Are there other cases pending which raise the same issue?
7. (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted? ..."[51]

• [91] Jacobs v One Steel Manufacturing Pty Ltd is a decision of an intermediate court of appeal[52] and has been followed,[53] so in the absence of High Court authority, I ought to follow it,[54] although I have some doubt that in circumstances such as this, a discretion not to allow a collateral challenge exists.
• [92] Whether the 2014 Award - Version 2 is a nullity is determined upon the construction of the relevant statutory provisions. Here, the statute provides a regime which created the 2014 Award. That award had the force of law until circumstances prescribed by the statue arose whereby the award, by force of the statute, ceased to have legal effect. The 2014 Award - Version 2 was made beyond jurisdiction and could have no effect upon the 2014 Award.[55] The jurisdiction to strike down an award as being made beyond power is well recognised.[56] The failure to strike down the 2014 Award - Version 2 means that doubt remains over the 2014 Award which was validly made and which remained effective and in force given the invalidity of the 2014 Award - Version 2.
• [93] If a discretion does exist to ignore the invalidity of the 2014 Award - Version 2 and not allow the Council to challenge it, then I would not exercise that discretion against the Council.
• [94] There are two main discretionary factors against the Council. The first is that the 2014 Award - Version 2 covered thousands of workers whose entitlements have been calculated pursuant to it. The second is that the Council, having been effectively represented by the Local Government Association upon the making of 2014 Award - Version 2, did not exercise any appellate rights or cause any appellate rights to be exercised by the Local Government Association so as to challenge it.
• [95] However, the present dispute demonstrates that the 2014 Award - Version 2 is not just a matter of history. The Union relies upon it in the present dispute as a valid termination of the 2014 Award and therefore the Spread Agreement. There is nothing to suggest that the Council has not honoured its obligations, as it saw them, under all the awards and both EBA3 and EBA4. All parties seemed, until the commencement of the present dispute, to have assumed that the Spread Agreement applied to Ms Peters and, presumably, all other employees who have entered into spread agreements were similarly bound.
• [96] The challenge to the 2014 Award - Version 2 was raised in a specialist tribunal from which an appeal lies to a specialist court. The question of invalidity is determined upon a published judgment[57] and otherwise non-controversial facts. As already observed, all relevant parties are present on the appeal and the invalidity is obvious.
• [97] The Council raise the invalidity of the 2014 Award - Version 2 not as a sword, but as a shield against the Union's claims. The Council, having established the invalidity, would suffer an injustice if it were not allowed it to rely upon the consequences.
• [98] The Union's position is that a collateral attack would only be allowed in exercise of discretion. The Union submits that the Industrial Commissioner exercised her discretion against allowing a collateral attack. It follows, so the submission goes, that this court may not interfere with that discretion unless a House v The King[58] error is demonstrated.
• [99] The Industrial Commissioner dealt with the discretionary question in one paragraph of the judgment.[59] The discretionary factors relied upon by the Industrial Commissioner were:

(a) the 2014 Award is now redundant;

(b) delay;

(c) the current dispute concerns "a single employee's remuneration";

(d) the current dispute does not justify an attack upon the validity of the awards;

(e) the Council had other remedies if it wished to attack the awards.

• [100] If there is a discretion, then the types of considerations which are relevant are those identified in Jacobs v One Steel Manufacturing Pty Ltd.[60] Factors of that nature were not the subject of consideration in the judgment of the Industrial Commissioner. More fundamentally though is the assumption by the Industrial Commissioner that the present case is about "a single employee's remuneration". That might strictly be correct in the sense that Ms Peters is the only employee mentioned in the proceedings. However, the reality is that many, many employees would be in the same position as Ms Peters and, depending upon the outcome of the present case, have been underpaid. The Council has a substantial contingent liability to those members of its workforce and is seeking to prove the invalidity of the awards in defence of its position.
• [101] The Union no doubt has many members in the same position as Ms Peters. It would be naïve to think that the Union would not make claims on behalf of those other members if Ms Peters' claim is successful. That is not meant as a criticism of the Union. The Union would, and in my view obviously should, pursue further claims on behalf of its members if the outcome of this case justified it.
• [102] The Industrial Commissioner's approach to the exercise of the discretion by assuming that the only question in issue is whether a few thousand dollars is owed to Ms Peters is, in my view, a factual error which, in itself, caused the exercise of discretion to miscarry.
• [103] To the extent that there is a discretion, the Council ought to be allowed to challenge the 2014 Award - Version 2. It is invalid.

Validity of the 2017 Award and should a collateral challenge to it be allowed

• [104] The Council bases its challenge upon the 2017 Award by drawing inferences from the Full Bench's published reasons and submits that the process miscarried.
• [105] It is an error to construe reasons for a decision in a semantic and overly critical way. Citing Collector of Customs v Pozzolanic Enterprises Pty Ltd,[61] the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[62] observed:

"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."[63]

• [106] At paragraph [8] of the reasons of the Full Bench,[64] when making the 2017 Award, this is said:

"[8] In accordance with Chapter 5, Part 8, Division 2 of the Act (i.e. the award modernisation process provisions of the Act) and the Consolidated Request under s 140C(1) of the Act from the Minister, the AMOD Team of the Commission prepared an Exposure Draft of the Proposed Award."

• [107] From that passage, the Council submits that the Full Bench set upon the wrong path; one of conducting an award modernisation process under Chapter 5 of the 1999 IR Act rather than a review pursuant to Chapter 20, Part 20. In my view, no fair reading of the reasons supports the Council's submission.
• [108] Chapter 20, Part 20 and Chapter 5 are interrelated. This is clear from s 841 which refers to the review (being the process conducted pursuant to Chapter 20, Part 20) being done pursuant to s 140CC which is a provision contained in Chapter 5.
• [109] The Full Bench was, and understood that it was, conducting a review pursuant to Chapter 20, Part 20. In particular:

(a) reference is made to Re: Variation and renaming of a modern award - Queensland Local Government Industry Award - State 2015[65] which was a decision which overturned the Full Bench's earlier decision and which was concerned with the operation of Chapter 20, Part 20;[66]

(b) reference is made to the ministerial request of 17 July 2015 which instigated the review. That refers to Chapter 20, Part 20 provisions;[67]

(c) reference is made to the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 (which introduced Chapter 20, Part 20).

• [110] Further, the Council submits that the Full Bench understood s 140CE of the 1999 IR Act as the source of power to review the award where the power was actually derived from s 841. The error is said to be found in the final paragraph of the judgment:[68]

"[61] Accordingly, the Full Bench makes the following orders:

1. That the Queensland Local Government Industry Award - State 2017 be made pursuant to s 140CE(1)(a) of the Industrial Relations Act 1999 and operate on and from 28 February 2017, subject to the provisions of s 824 of the Act.
2. That the Queensland Local Government Industry Award - State 2014 be repealed on and from 28 February 2017, subject to the provisions of s 824 of the Act."

• [111] The reference to s 140CE(1)(a) is odd. At paragraphs [9] and [10] of the judgment, the Full Bench sets out various sections of the 1999 IR Act which were relevant to their task. Section 140CE is not mentioned there, or anywhere else in the judgment.
• [112] Section 140CE does not identify the relevant considerations for the modernisation of awards under Chapter 5 or for the review under Chapter 20, Part 20. Section 140CE(1) just prescribes the appropriate orders which can be made, namely the making of an award. That is what the Full Bench did, after referring to s 140CE(1)(a).
• [113] While that reference may have been an error, it is not one that affected the reasoning which led to the determination. The Full Bench was obliged, by s 841, to review the 2014 Award pursuant to s 140CC and in that process apply the modern award objectives under s 140D[69]. That is what the Full Bench did.
• [114] The Council further submitted that the Full Bench's approach to the review shows error. It is evident that a draft award was prepared by the QIRC's Award Modernisation Team (AMOD). That draft was then provided to the relevant parties. The Council submits that instead of turning its mind to the ministerial request and the legislation, the QIRC just delegated its function to AMOD and then dealt only with the matters in dispute.
• [115] That submission ought to be rejected. By s 140CC(2)(a) of the 1999 IR Act,[70] the QIRC was to decide the procedure for carrying out the review. It did that by having AMOD prepare a draft. Traditionally, industrial matters are handled through organisations like unions and employer groups collectively representing the many individuals and entities affected by industrial instruments. Here, the QIRC involved the relevant entities and sought their input.
• [116] As I have already explained, the Full Bench understood its function and fulfilled it.[71] The Full Bench was not obliged to slavishly, in its reasons, work through each aspect of the ministerial request. It complied with the request and s 140D by providing a draft new award, hearing the relevant parties and then determining the terms of the 2017 Award. No error is shown.
• [117] By s 841(2) of the 1999 IR Act, the Full Bench, once it had completed its Chapter 20, Part 20 review, was required to "vary" the 2014 Award. As already observed, it purported to repeal the 2014 Award and make the 2017 Award. However, in proper context, that was not an error.
• [118] What resulted was a document which was significantly different to the 2014 Award. In effect then the 2017 Award replaced the 2014 Award. Whether the 2014 Award was totally varied or replaced is very much a matter of form rather than substance.
• [119] The Full Bench had the jurisdiction to bring into existence what became the 2017 Award and it did so. In so doing, it complied with the legislation which vested the jurisdiction upon it. The 2017 Award is valid and there is no need to consider whether a collateral challenge should be allowed.

• [120] The Council accepts that any challenge to the Partitioned Award is dependent upon the 2017 Award being invalid.[72]
• [121] As the 2017 Award is valid, so is the Partitioned Award and no question of collateral challenge to it need be considered.

• [122] The 2014 Award is a valid modern award. The 2014 Award - Version 2 was not validly made and therefore had no impact upon the 2014 Award or Ms Peters' employment, specifically the Spread Agreement. The 2017 Award is valid, as is the Partitioned Award.
• [123] Modern awards which were in force immediately before the commencement of the 2016 IR Act continue in force,[73] as do certified agreements, such as EBA3.[74]
• [124] The Partitioned Award is a new award. It is not some variation of either the 2014 Award or the 2017 Award. That is the effect of s 995(6) of the 2016 IR Act.[75] The 2017 Award "is taken to be revoked" and the Partitioned Awards "are taken to be made under Chapter 3".
• [125] Section 841[76] of the 1999 IR Act commands the QIRC to "review" and "vary" the "relevant modern award" which is the 2014 Award. Therefore, it appears that the 2017 Award is not a new award but is the 2014 Award as "varied".
• [126] Therefore, so submits the Council, the 2014 Award, pursuant to which Ms Peters made the Spread Agreement, was in force until the Partitioned Awards were made on 30 June 2017.
• [127] Section 995[77] is at odds with s 841 of the 1999 IR Act. Section 995 requires the Registrar to partition "the [2014 Award]" as "a modern award that replaced[78] the [2014 Award]". Given the history of the various amendments, there must be a strong argument that a "modern award that replaced the [2014 Award]" is a reference to an award produced pursuant to the further modernisation process in Chapter 20, Part 20 of the 1999 IR Act. If so, the 2017 Award is arguably a new award, not a variation of the 2014 Award. That mystery is not one that need be resolved.
• [128] As earlier observed, the Spread Agreement is the result of a contractual bargain made between the Council and Ms Peters.[79] The issue then is as to the objective determination of the parties' intentions. Did the Spread Agreement, when made, extend to operate in respect of an award in terms of the 2017 Award?
• [129] In my view, the answer is, "no". The 2017 Award is a complete substitution of the 2014 Award. It is also in relevantly different terms. The 2014 Award provides for 38 ordinary hours. The 2017 Award provides for 36.25 hours. The 2014 Award provides for time and one half pay for the first three hours worked on a Saturday and double time thereafter, but the 2017 Award provides for double time all day Saturday.
• [130] On a proper construction of the Spread Agreement, Ms Peters has not made an agreement on a spread of hours which binds her under the 2017 Award.
• [131] However, s 846 of the 1999 IR Act[80] identifies the employees to whom a variation (the term used in s 841) of a modern award applies.
• [132] The 2014 Award is a "pre-variation modern award" in that it was a modern award in force immediately before the commencement of the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015. Ms Peters was an employee covered by a certified agreement, namely EBA3.
• [133] Therefore, by force of s 846(1)(b)(iii), as clarified by s 846(3), the 2017 Award, being a "variation of the modern award",[81] did not apply to her until EBA4 was certified. Then she would fall within s 846(1)(b)(i), as EBA4 is a "certified agreement that is certified after the variation comes into operation".
• [134] Chapter 18 of the 2016 IR Act[82], in part, preserves that position. Section 993 preserves a modern award "that was in operation" immediately before the commencement of the 2016 IR Act. The 2017 Award was "in operation" as governed by s 846 of the 1999 IR Act.
• [135] This is confirmed by the terms of the 2017 award. It provides:

"(a) Subject to section 824 of the Act, this Award operates from 28 February 2017." (emphasis added)

• [136] The 2017 Award refers to s 824[83] of the 1999 IR Act rather than s 846.[84] Section 846 applies to a Chapter 20, Part 20 variation of a modern award; the 2017 Award. Section 824 applies generally to a "modern award" which would include the 2017 Award.
• [137] It follows then that subject to the effect of the making of the Partitioned Award, Ms Peters' employment was governed by the 2014 Award, EBA3 and the Spread Agreement until EBA4 was made on 28 October 2019.
• [138] However, s 995(6)[85] of the 1999 IR Act does not preserve the position established by s 846 of the 1999 IR Act. Section 995(6) provides that the modern award in effect upon the commencement of the 2016 IR Act (here the 2017 Award),[86] is, upon partition, taken to be revoked and the "replacement awards are taken to be modern awards made under chapter 3".[87]
• [139] By Chapter 3:
  1. the 2017 Award applies to Ms Peters if she is an employee to whom the award is said to apply;[88]
  2. the award operates from the day stated in the 2017 Award.[89]
• [140] The Partitioned Award provides:

• [141] Therefore, the Partitioned award operates from 1 July 2017. From that date, Ms Peters was not bound by the Spread Agreement.
• [142] There was later litigation about the Partitioned Award[90] which does not affect these conclusions.

• [143] The Union has made good its appeal to the extent that Ms Peters is not bound by the Spread Agreement from 1 July 2017.
• [144] At the hearing of the appeal, the parties were in agreement that, given the different permutations of available results of the appeal, it was best for me to deliver reasons determining all the various issues and then give the parties an opportunity to make submissions as to what final orders should be made.
• [145] I accept that is a sensible approach and I will make directions for the exchange of written submissions and oral submissions if required. I formally find:
  1. The 2014 Award - Version 2 is invalid.
  2. The 2017 Award is valid.
  3. The Partitioned Award is valid.
  4. The 2014 Award applied to Ms Peters' employment until 30 June 2017.
  5. The Partitioned Award applied to Ms Peters' employment from 1 July 2017.
  6. The Spread Agreement only bound Ms Peters while the 2014 Award applied to her employment.
  7. The Spread Agreement did not apply to Ms Peters' employment from 1 July 2017.
• [146] It is ordered:
  1. The various issues on the appeal are determined as explained in these reasons.
  2. By 17 August 2022, any party may file and serve on the other parties who appeared on the appeal written submissions as to the final orders which should be made.
  3. By 24 August 2022, any party may file and serve written submissions in reply to any other written submissions that have been filed and served pursuant to order 2 above.
  4. By 31 August 2022, any party who has filed written submissions, either pursuant to order 2 or order 3 above, shall advise the Registrar as to whether they wish to make oral submissions as to the final orders to be made.
  5. If no party indicates a desire to the Registrar to make oral submissions by 31 August 2022, the final orders will be determined on the written submissions.
  6. In the event that any party wishes to make oral submissions as to the final orders, the appeal will be listed for further hearing.

[1] Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] QIRC 038.

[2] Clauses 12.1(a)(i) and 15.1(a) of the 2014 Award.

[3] The reference to clause 15.4(a)(ii) should be a reference to clause 15.3(a)(ii); Transcript 17 August 2020, 1-3 ll 5‑20. Nothing turns on this.

[4] Being an award made under Chapter 5A; Definition of "modern award" Industrial Relations Act 1999, Schedule 5: Dictionary; Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149.

[8] Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009.

[10] Which appears at paragraph [23] of these reasons.

[15] A reference perhaps to the 2014 Award - Version 2, but would include the 2017 Award which was then in place.

[16] Section 150 gives the Queensland Industrial Relations Commission the power to revoke awards.

[17] Chapter 3, Parts 1 and 2 concern principles for the Queensland Industrial Relations Commission to apply in making awards (Part 1) and the content of modern awards (Part 2).

[18] Chapter 5, Part 2, Division 1 concerns equal remuneration in awards.

[20] Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] QIRC 038 at [37].

[21] A reference to what I have called the 2014 Award - Version 2.

[22] Queensland Services Industrial Union of the Employees v Moreton Bay Regional Council [2020] QIRC 038 at [29], [30] and [35]-[37].

[24] A reference to what I have called the 2014 Award - Version 2.

[25] Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] ICQ 21.

[26] There was also a further directions hearing on 4 February 2021.

[28] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 419-421 and Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 at 479.

[29] Industrial Relations Act 1999, ss 135, 140EC.

[30] Up to 38 hours; 2014 Award, clause 15.1(a).

[31] Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] QIRC 038 at [29].

[32] Asserted by the Union with no disagreement, Transcript 3 June 2021, 1-52.

[33] (2005) 146 IR 37.

[34] This is as they appeared when the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 came into effect.

[35] Which concerns the repeal of a pre-modernisation award.

[36] Defined as "an award made under Chapter 5A"; Industrial Relations Act 1999 Schedule 5: Dictionary.

[38] Anti-Discrimination Act 1991.

[39] Industrial Relations Act 1999, s 807.

[40] Made in January 2014 and varied on 27 August 2014.

[42] See In the matter of a Proposed Queensland Local Government Industry Award - State 2015 [2016] ICQ 6.

[44] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 at 98-99 and Dyldam Developments Pty Ltd v Owners - Strata Plan 85305 [2020] NSWCA 327; (2020) 104 NSWLR 19 at [58]- [60].

[45] Industrial Relations Act 2016, s 557.

[46] Industrial Relations Act 2016, s 424(1)(e).

[47] Transcript 3 June 2021, 1-28/1 to 1-29/5.

[48] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69; Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83 at 108 and 131; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at 133.

[49] [2006] SASC 32; (2006) 93 SASR 568; with whom Duggan, Vanstone and Layton JJ agreed.

[50] M Aroson, "Criteria for Restricting Collateral Challenge" (1998) 9 Public Law Review 237; Professor Enid Campbell, "Collateral Challenge of the Validity of Governmental Action" [1998] MonashULawRw 12; (1998) 24 Monash University Law Review 272.

[51] Jacobs v One Steel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568 at [93] and [94].

[52] The Full Court of the Supreme Court of South Australia.

[53] Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263 at [226] and Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No. 2) [2018] FCA 978 at [65]- [70].

[54] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

[55] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 614-615; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24].

[56] R v Hickman; ex-parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 and O'Toole v Charles David Pty Ltd (1990) 171 CLR 232.

[57] That of Deputy President Bloomfield purporting to make the 2014 Award - Version 2.

[58] (1936) 55 CLR 499.

[60] [2006] SASC 32; (2006) 93 SASR 568.

[61] [1993] FCA 356; (1993) 43 FCR 280 at 287.

[62] (1996) 185 CLR 259.

[64] Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009.

[65] [2015] QIRC 186; see [4].

[66] Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009 at [2].

[68] Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009.

[69] See s 842(3)(b).

[70] Section 140CC appears at paragraph [74] of these reasons.

[71] See paragraphs [106] to [113] of these reasons.

[73] Industrial Relations Act 2016, s 993.

[74] Section 998.

[75] Section 995 appears at paragraph [23] of these reasons.

[76] Section 841 appears at paragraph [75] of these reasons.

[77] Section 995 appears at paragraph [23] of these reasons.

[79] See paragraphs [51]-[61] of these reasons.

[80] Section 846 appears at paragraph [75] of these reasons.

[82] Report of the 1999 IR Act, see s 991, and transitional provisions.

[83] Section 824 appears at paragraph [72] of these reasons.

[84] Section 846 appears at paragraph [75] of these reasons.

[85] Section 995 appears at paragraph [23] of these reasons.

[90] Local Government Association of Queensland Ltd v Queensland Services, Industrial Union of Employees & Ors [2017] ICQ 002 and Local Government Association of Queensland Ltd v Queensland Services, Industrial Union of Employees [2020] QIRC 065.