Tempo Services Ltd v Strezouski

CATCHWORDS: Appeal - Declaratory relief - Appeal from declarations made concerning alleged invalidity of award - Whether Court Session has power to grant relief collaterally attacking validity of award - Discretion to make such declarations - Appeal upheld - Declarations set aside - Costs.

Industrial Arbitration Act 1912 s 58 Industrial Arbitration Amendment Act 1926 s 8 s 9 LEGISLATION CITED: Industrial Arbitration Act 1940 s 27 s 84 Industrial Relations Act 1991 s 23 Industrial Relations Act 1996 s 11 s 17 s 19 s 22 s 154 s 179

Grossy v Lynch [1934] AR (NSW) 155 Hollingsworth v Commissioner of Police, New South Wales Police Service [2005] NSWIRComm 279 Long v Fishers Food Pty Limited [1955] AR (NSW) 501 Mitchforce v Industrial Relations Commission of New South Wales and ors (2003) 57 NSWLR 212 Morgan v Rylands Brothers (Australia) Limited (1927) 39 CLR 517 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 CASES CITED: Railway Commissioners for New South Wales v Langshaw [1928] AR (NSW) 557 Reo Motors Pty Limited v Bagnall [1947] AR (NSW) 753 Solution 6 holdings Limited & Ors v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 Strezouski v Tempo Services Limited [2004] NSWIRComm 374 Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124 The King v Hickman and Anor (1945) 70 CLR 598

APPELLANT: Mr R J Buchanan QC with Mr J V Murphy McCarthy Ausgroup Pty Ltd (Mr Mark Diamond) LEGAL REPRESENTATIVES:

RESPONDENT: Mr M Creswell and Mr W S Martin Agents

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WRIGHT J, President WALTON J, Vice-President BACKMAN J Thursday 22 September 2005

Application by Tempo Services Limited for leave to appeal and appeal against a decision of Justice Marks given on 13 December 2004 in Matter No IRC 3225 of 2004

1 The appellant, Tempo Services Limited, seeks leave to appeal and, subject to leave being granted, appeals against the decision of Marks J given on 13 December 2004 and the declarations made therein: Strezouski v Tempo Services Limited [2004] NSWIRComm 374. The respondent, Mr Bone Strezouski, was employed pursuant to the provisions of the Cleaning and Building Services Contractors (State) Award ("the Award"). The central issues in the proceedings are the validity of cl 12(v) of the Award and whether any purported invalidity of that provision is amenable to declaratory relief. The decision at first instance

2 His Honour noted that the factual background to the proceedings was not in dispute. The respondent was employed by the appellant as a cleaner at the international terminal at Sydney Airport on 3 July 1990 under the provisions of the Award. The employment was terminated in 15 March 2004 following retrenchment. While working at the airport, the respondent worked 38 ordinary hours each week and additional hours worked pursuant to the contract were paid at overtime rates. 3 The respondent was offered and accepted a separate contract of employment to carry out cleaning work in premises occupied by Virgin Airlines at the domestic terminal commencing on 6 March 2002. He worked four hours each day over a five day week. This engagement was also terminated on 15 March 2004 when he was retrenched. Although both the respondent and the appellant accepted that the respondent was employed on a part-time basis while working at the Virgin Terminal, the respondent was paid on the basis that he was a casual employee. It was accepted in the proceedings that the respondent was engaged to carry out this additional work on a part-time basis pursuant to cl 12(v) of the Award and that nothing turned on the fact that he was in fact paid the higher casual award rate of pay. 4 Marks J noted that ordinary hours of work were dealt with in cl 5 of the Award, with the clause providing that ordinary hours of work exclusive of meal times were not to exceed an average of 38 hours per week over a four week cycle, nor to exceed eight hours per day. 5 Clause 12(i) dealt with engagement of part-time employees. It is in the following terms: cl 12 Part-Time Employees (i) Part-time employees may be employed under the terms of this award, subject to the following conditions: (a) Such employees shall be engaged by the week for a constant number of ordinary hours each week less than the ordinary number of hours prescribed for full-time employees. (b) Such employees shall be paid in accordance with the appropriate provisions of clause 7, Wages. Clause 12(v) provides for a second engagement of full-time employees on a part-time basis: (v) Second Engagement for Full-time Employees at the Part-time Rate - After the cessation of ordinary hours of work, a full-time employee may be engaged on a second engagement as a part-time employee with the same employer on the following basis: (a) The second engagement as a part-time employee shall be a separate engagement from the employee's full-time position and will attract and be paid all award and statutory entitlements. (b) Termination of employment in either engagement shall not prejudice employment in the other engagement. (c) The hours of work in the part-time second engagement shall, as far as possible, be continuous with the cessation of the ordinary hours of work as a full-time employee. (d) The part-time second engagement shall be for a constant number of ordinary hours per week less than the ordinary number of hours prescribed for full-time employees in subclause (ii) of clause 3, Definitions. (e) Full-time employees working extended ordinary hours in accordance with subclause (ii) of clause 5, Hours, shall not be engaged on a second engagement as a part-time employee, and are excluded from the provisions of this subclause. 6 Clause 5 is entitled "Hours". It is a lengthy and complex provision. For present purposes it is sufficient to note that, subject to different patterns of work being prescribed for Day Workers, the different kinds of Shift Workers and a category of workers referred to as working "Extended Ordinary Hours" (which provides for shifts beyond eight hours per day in certain circumstances), the clause provides that "[o]rdinary working hours, exclusive of meal breaks, shall not exceed an average of 38 per week, over a four-week cycle, nor exceed eight per day ..." 7 Section 22 of the Industrial Relations Act 1996 provides: 22 Maximum ordinary hours of employment (1) The number of ordinary working hours of an employee when set by an award must not exceed 40 hours per week, averaged over a 12 week period. (2) However, those ordinary hours may be averaged over a period not exceeding 52 weeks in the case of seasonal employment. (3) The ordinary working hours of an employee cannot be reduced by an award unless the reduction is made by a Full Bench of the Commission. 8 Whilst both parties agreed that the employment was covered by cl 12(v) of the Award, the respondent argued that cl 12(v) was invalid as it breached s 22(1) of the Industrial Relations Act 1996 in that cl 12 enabled an employer of the one employee to make payment to the employee of award rates of pay in excess of 40 hours at the ordinary time rate of pay. 9 As his Honour noted at [10]: [I]t was the assertion of the applicant that the award could not make provision for payment of work at ordinary time rate-of-pay exceeding 40 hours per week averaged over a 12 week period with respect to the total employment of any employee by the same employer. It was the submission of the respondent that s 22(1) only applied it ( sic ) its application to an award to individual contracts of employment in that the award provisions would be applied on a contract by contract basis in terms of ascertaining the permissible ordinary working hours of an employee. 10 His Honour considered the history of cl 12 at para [11] of his reasons noting that in the course of proceedings for the making of a new consent award in 1994, Mr Raper for the Australian Liquor, Hospitality and Miscellaneous Workers' Union explained that: the clause was intended to give employees an opportunity to work for the same employer in a part-time position with a correlative benefit for the employer in being able to retain the services of an employee who was skilled and trained as a cleaner.

As his Honour observed (his Honour having himself dealt with the relevant award variation in 1994): There was no consideration given during the course of the proceedings to the impact of any equivalent provision to s 22 contained within the then Industrial Relations Act 1991. 11 His Honour considered the meaning of s 22 of the Act, finding at [12] that: [I]n general terms s 22(1) provides that the ordinary hours set by the Award must not exceed 40 per week, so that any work performed beyond that time will be paid for at overtime rates. This is clearly the intention of the subsection.

His Honour then held: [13] It is instructive to emphasise that the subsection is directed to the ordinary hours worked by "an employee". This must be taken to be a reference to any employee and in turn a reference to any employee of any employer. That is, an award may not provide that an employee of an employer may work more, and be paid for more, than 40 hours of work a week to be paid at ordinary time rate-of-pay. Section 22(1) is directed to an employee by reference to work performed, and is not directed to individual contracts of employment. [14] Construed in that way, it will be seen that s 22(1) impacts on any award provisions which allow for concurrent contracts of employment between the same employer and the same employee which have the effect of allowing work to be performed at ordinary time rate-of-pay in excess of 40 hours per week. Therefore, it must be concluded that this Award, in that it allows the same employer to engage the same employee to perform additional duties, albeit on a part-time basis and purportedly pursuant to a separate contract of employment, has permitted the employee to work more than 40 ordinary hours per week and is thereby inconsistent with s 22(1). To permit of any other construction would allow the formulation of work arrangements which would frustrate the clear intention of s 22. 12 After noting the assumption of both parties that the intention of cl 12(v) was to permit payment of additional part-time work at ordinary rather than overtime rates of pay, his Honour concluded at [16] that to the extent of the inconsistency noted, cl 12(v) of the Award was void and of no effect. Submissions of the appellant 13 The appellant submits that the questions raised by the appeal are:

(a) whether, on its proper construction, s 22 of the Act has the effect of rendering cl 12(v) of the Award void;

(b) whether s 22(1) of the Act limits the number of ordinary hours of an employee when set by an Award to no more than 40 per week being the total number of hours worked by that employee per week, or the total number of hours worked by that employee pursuant to any single contract of employment;

(c) whether s 179 of the Act operates to prevent the Commission from declaring cl 12(v) of the Award void to the extent that it is inconsistent with s 22(1) of the Act.

and that the factors in favour of granting leave to appeal are:

(a) the appeal raises important questions concerning the Commission in Court Session's power to set aside, at the instigation of a third party, an award made by the Commission with the consent of the parties to that award; and

(b) unless the decision and consequent declarations of his Honour are set aside, there will be a significant negative economic impact to both employers and employees in the contract cleaning business. 14 The grounds of appeal are that:

(a) his Honour erred in finding s 22(1) of the Act operates on the total number of hours worked per week by an employee rather than the number of hours pursuant to individual and separate contracts of employment;

(b) his Honour erred in declaring cl 12(v) of the Award void to the extent that it is inconsistent with s 22(1) of the Act in allowing the respondent to perform work for the appellant at ordinary time rates of pay exceeding 40 hours per week in any 12 week period. His Honour erred in declaring that the respondent is entitled to be paid at appropriate overtime rates of pay for all work performed by him outside his ordinary hours of work under both contracts of employment calculated as though cl 12(v) required overtime rates to be paid in excess of 40 hours per week averaged over a 12 week period. 15 The appellant notes that cl 12(v) of the Award was inserted by Marks J on 19 January 1994 with the consent of various employers and employer groups on the application of the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch; further, that the subclause was represented to the Commission by the Union as operating for the benefit of employees. 16 The appellant submits that despite s 22 of the Act, s 179(2) of the Act prevents a declaration impugning the Award. It is also submitted that the engagements upon which cl 12(v) operates are the subject of separate contracts of employment at common law. This submission is said to be reinforced by the provisions of cl 12(v)(a) which provides that the second engagement shall be a separate engagement and will independently attract all relevant entitlements. Consequently, the appellant submits that the number of ordinary working hours must be assessed by reference to each separate agreement; therefore, there is no inconsistency with s 22 of the Act. 17 It is submitted that his Honour erred in considering the prohibition in s 22 of the Act as referring to the ordinary working hours of individual employees. The appellant submits that such a construction would equally require overtime to be paid by a second employer operating under the same award where the earlier full-time engagement was unknown. Further, such an approach would render it difficult to determine which engagement constituted ordinary hours of work, and overtime hours of work. 18 It is said that it was not the purpose of the award to prohibit second engagements. In fact, it is clear that the Union's purpose in 1994 was to provide a facility for employees to obtain a second engagement without the need to search for another employer. Hence the subclause was intended to advantage employees. 19 It is also submitted that the effect of his Honour's decision is to rewrite the basis of the respondent's second engagement, after it had been terminated. In so doing, the respondent received a gain beyond the terms upon which the engagement was agreed. Furthermore, any interference with the terms or operation of the Award should only have occurred prospectively and not in such a way as to undo agreed arrangements to the benefit only of one party to those arrangements. 20 Further that, assuming jurisdiction, declaratory relief should have been refused in the exercise of discretion so that the Award could, if necessary, be varied in a way that gave sufficient attention to the interests of all employers (and employees) to whom the Award applied. 21 Finally, the appellant submits that it is contrary to the public interest that employers (and employees) be confronted with the dismantling of award provisions retrospectively to a date almost eleven years earlier. Section 15 of the Act prevents any such outcome with respect to the adjustment of award rights. It is submitted that the power to grant declaratory relief should be prudently exercised so that the integrity of the award making system and of individual awards and their terms is not destabilised in circumstances such as the present case. Submissions of the respondent 22 The respondent's submissions are comprised of three sections, as follows:

(a) The position of the Award and the Act 23 The respondent submits that cl 5(i) of the Award complies with s 22 of the Act in specifying that the ordinary hours of work to be performed by an employee shall not exceed 38 hours per week to be worked over an average four week period, or eight hours in any day. 24 Clause 10 of the Award permits the working of hours in excess of ordinary hours, but requires that those excess hours be paid at overtime rates. The respondent notes that in the proceedings at first instance both parties accepted the definition of "ordinary working hours" given by his Honour as "hours that do not attract any penalty payment by way of overtime". 25 It is also submitted that on the face of the sub-clause, the parties to negotiating the 1994 award must have been aware of the limitations of s 22 of the Act. In the wording of cl 12(v), the parties sought to adopt the device of calling the arrangement a second contract of employment. The preamble reads: Second Engagement for Full Time Employees - After the cessation of ordinary hours of work, a full time employee may be engaged on a second engagement as a part-time employee with the same employer on the following basis... 26 The respondent notes that cl 12(v)(a) provides that the second engagement "will attract and be paid all award and statutory entitlements". Thus, in the respondent's submission, it is arguable that the second engagement should have been paid at overtime rates, although that is not how the parties applied the provision. The assumption seems to have been that hours worked under the presumed second engagement were to be paid at ordinary time rates and this is the rate paid to the respondent, although he was paid the casual rate of pay. 27 It should be further noted that cl 12(v) makes no mention of the second employment being permissible on a casual basis. However, assuming the appellant intended to be within the provision, the respondent argued his case at first instance on the basis that he was purportedly engaged as a permanent part-time employee during his second engagement. 28 The respondent submits that the combined effect of cl 5(i) and 12(v) and the manner of their combined application means that an employee could be employed for a maximum of 75 hours per week averaged over a four week period at the ordinary time rate, thereby exceeding s 22 of the Act.

(b) The contract of employment 29 The respondent does not accept the appellant's contention that it is possible for there to be two separate yet concurrent contracts of employment on foot between the same parties. The respondent submits that as some of the terms of the employment contract must be observed at all times - duty of fidelity and good faith for example - there is no room for a second contract between the same parties which essentially covers the same work. Whilst the contract may be varied or rescinded, the respondent submits that at any one time there can only be one contract of employment. 30 The respondent notes that cl 12(v) of the Award purports to permit a second contract of employment to run concurrently with the first. However, the respondent submits that the formation of a contract of employment is a process at common law and the Award cannot determine the manner in which such a contract is made, or authorise the making of a second concurrent contract. An award arises from the status of the parties, and it is only as a result of that status that an award can impose conditions upon the conduct of the parties. At common law, there is only power for one contract of employment to exist at any one time, and there is no power available to the Commission to alter that power. 31 Consequently, cl 12(v) is a nullity in that there is no power vested in the Commission to create a contract of employment separate and distinct from the contract already on foot. 32 Therefore, on a proper reading of the decision of Marks J, it was held that where hours in excess of 40 hours per week are worked by the one employee for the same employer, those excess hours were to be paid at overtime rates.

(c) The effect of s 179 of the Act 33 After noting that the operation of s 179 was not raised at first instance, the respondent disputes the appellant's submission regarding s 179. The respondent submits that privative clauses were most recently considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, where the majority of the Court (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), at [56], cite the following approach of Dixon J in The King v Hickman and Anor (1945) 70 CLR 598 at 614 - 615 as to privative clauses: Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.

It was then held in Plaintiff S157/2002 at [57]: Moreover and as later decisions of this Court have made clear, the expression "reasonably capable of reference to the power given to the body" ( The King v Hickman at 615) has been treated as signifying that it must "not on its face go beyond ... power" ( R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418 per Mason ACJ and Brennan J quoting Kitto J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 253. See also O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 287 per Deane , Gaudron and McHugh JJ). Thus, even on this general statement, a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction.

And at [58]: As to the effect of the privative clause actually considered in Hickman , Dixon J first noted that the Parliament could neither "give power to any judicial or other authority" in excess of constitutional power nor "impose limits upon the ... authority of a body ... with the intention that any excess of that authority means invalidity, and ... at the same time ... deprive this Court of authority to restrain the invalid action ... by prohibition." (at 616) Rather, if legislation purports to impose limits on authority and contains a privative clause, it is, so his Honour said, "a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity." (at 616) And in that process, according to his Honour, an attempt should be made to "reconcile" the apparently conflicting legislative provisions (at 616). 34 Based on Plaintiff S157/2002, the respondent submits that s 179 of the Act cannot have the meaning attributed to it by the appellant. Further, that the High Court in that case held at [76]: Once it is accepted, as it must be, that s 474 [of the Migration Act ] is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at 606 [51] per Gaudron and Gummow JJ, 608 [63] per McHugh J, 624-625 [152] per Hayne J; 187 ALR 117 at 129, 131, 154-155.). 35 The respondent submits that in the present case, there has been no failure to exercise jurisdiction, and nor is there an excess of jurisdiction conferred by the Act. When the Award was made, his Honour sat in his arbitral capacity; and when his Honour heard the respondent's application, he did so in his capacity as a judicial member of the Commission in Court Session. As his Honour noted in the transcript at first instance: If [cl 12(v)] is void, it is void. I am being asked to do something in my capacity as a judge of the court, not as a member of an industrial tribunal. 36 The respondent observes that the privative provision in this jurisdiction was considered in Mitchforce v Industrial Relations Commission of New South Wales and ors (2003) 57 NSWLR 212 and Solution 6 holdings Limited & Ors v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558. In Mitchforce at [74], Spigelman CJ noted: In Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action , 2nd ed (2000) Sydney, LBC Information Services, at 691, the authors state that a privative provision is effective to protect from jurisdictional error provided the impugned decision: (e) did not breach a statutory constraint regarded as being so important as to be unprotected in any way by the operation of the clause.

and held at [84] to [86] that: [84] The proposition in (e) is well established in the authorities. Brennan J described it as a "fourth condition", if not inherent in the threefold Hickman formulation. (See O'Toole v Charles David Pty Ltd (at 274).)

[85] The most frequent expression of the proposition is in terms of the existence of "inviolable limitations or restraints" on jurisdiction. (See R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248; referred to with approval in R v Coldham; Ex parte Australian Workers' Union (at 419); Darling Casino (at 632).) Other formulations include: "a final and definitive limitation" ( R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 140); "essential to valid action" ( R v Murray; Ex parte Proctor (at 400)) and where statutory powers "definitely … are not exercisable in other cases" ( R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 at 369). [86] The very characterisation of a "restriction or restraint" as "inviolable" represents the culmination of a process of statutory interpretation in which the terms of a privative provision are reconciled with the "restriction or restraint". That appears to me to be an alternative mechanism of reconciliation to that identified in the threefold statement of the Hickman principle. 37 The respondent submits that s 22 of the Act is just such a restraint or inviolable provision and, therefore, his Honour did not err in his declaration. 38 The respondent's final submission is that his Honour properly exercised his jurisdiction and that while granting declaratory relief is discretionary, the courts have held that where there has been shown to be a clear failure to exercise jurisdiction or where jurisdiction has been clearly exceeded, or a tribunal has failed to act in accordance with the rules of natural justice, the discretion will be exercised almost as of right.

39 Subsequent to the hearing before the Full Bench, the parties conferred in an attempt to resolve the appeal. That attempt was unsuccessful. The appellant did however advise the Court that if the appellant was successful in its application for leave to appeal and the appeal was upheld it undertook to pay the proper legal costs of the respondent, as agreed or assessed. We consider that that is an appropriate approach for the appellant to take particularly having regard to its submissions that the decision of Marks J, if it stood, could have the effect of casting doubts upon the validity and effect of a large number of contracts of employment which it, and other cleaning contractors have throughout the industry. When the proceedings are understood in this way, the appeal can be said to be somewhat in the nature of a test case and it is appropriate for an appellant in those circumstances to offer to pay the costs of an individual litigant when the appeal has significant commercial consequences for the appellant well beyond the interest of an individual personal litigant in the litigation. Leave to appeal

40 We consider that leave to appeal should be granted. These proceedings raise important questions as to the jurisdiction and the practice of both the Commission in Court Session and also for the practice of the Commission. The relevant areas in respect of which issues of principle are raised by the proceedings include the circumstances in which it may be inappropriate for declaratory relief to be granted and the inappropriateness of permitting collateral attack on the provisions of an award made in the Commission's arbitral jurisdiction. As such, the proceedings raise important legal and discretionary issues. In granting leave to appeal we have also had regard to the appellant's undertaking with respect to the costs of the appeal.

41 As noted earlier, the proceedings before Marks J were proceedings for declaratory relief and thus were proceedings brought pursuant to s 154 of the Industrial Relations Act. That section is in the following terms: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 42 There are a number of matters to be considered in proceedings such as the present when declaratory relief is sought. The section clearly confers a discretion. The terms of the section make that plain as does the considerable amount of legal learning on the grant of declarations which uniformly speak of declaratory relief being discretionary in nature. See, for example, the discussions of this issue in the recent Full Bench judgment of this Court in Hollingsworth v Commissioner of Police, New South Wales Police Service [2005] NSWIRComm 279 at, for example, [60], [105] and [162]. 43 The power to grant declaratory relief under s 154 is provided only to the Commission in Court Session although the power is expressed in extremely wide terms and may be exercised in respect to any matter "in which the Commission (however constituted) has jurisdiction". That phrase means that the Court Session may grant declaratory relief in respect of any matter in which the Court Session or the Industrial Relations Commission has jurisdiction. 44 It is also important to recognise that the Commission in Court Session is not only a superior court of record but is a separate and distinct body to the Commission otherwise constituted: Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124 at 171 - 172. 45 The terms of s 179 of the Industrial Relations Act (entitled "Finality of decisions") is a crucial part of the appellant's arguments in the proceedings. The terms of that section are: 179 Finality of decisions (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission. 46 Although this provision has been the subject of a great deal of consideration recently in decisions of the Court of Appeal, it is important for present purposes to refer to the literal terms of the section and also to a number of cases in respect of statutory predecessors of s 179 and the operation of those provisions when attempts were made to attack collaterally awards made by a predecessor of the Commission such as the Industrial Commission or a Conciliation Committee. 47 The opening words of s 179 confirm the importance of the right of appeal to the Full Bench and make clear that, subject to the exercise of that right of appeal, a decision or purported decision of the Commission is final and may not be the subject of an appeal, review, etc in any court of tribunal, whether on factual, legal, jurisdictional or other bases. Subsection (3) of s 179 makes clear that the phrase "any decision or purported decision" is intended to include reference to an award of the Commission and, in context, it also includes a purported award of the Commission. Subsection (2) provides that any judgment or order which could have been made but for the existence of the section is not to be given or made in relation to a decision or purported decision of the Commission (or thus in relation to an award or purported award of the Commission) and subsection (2) also provides that the kinds of judgments or orders prohibited by the section include declaratory orders. 48 It follows from the terms of s 179 that it is not open to the Court Session to grant declaratory relief in a circumstance where the grant would involve an appeal, a review, a quashing or a calling into question of an award or purported award made by the Commission. 49 The consideration thus far of the literal terms of s 179 itself raises substantial doubts as to the declaration made in the proceedings at first instance. Reference to the evident purpose of s 179 leads to the same conclusion. Relevantly, the purpose of the section is to provide, in the widest way, finality to awards of the Commission to enable those working or employing under them confidence in their continuing force and effect. 50 We also consider that the respondent's reliance on the line of authority leading to the approach of the Chief Justice in Mitchforce is misplaced. His Honour's reasoning depended upon the proposition that "[t]here may be circumstances in which the exercise of a power or discretion will not be held to be a 'decision or purported decision' within the privative provision" (at [91]). We have no doubt that the award in this matter is "a decision or purported decision" within the extended meaning of that expression given to it by s 179(3). 51 Similarly, it cannot be said that the award infringes the Hickman principle in its extended form as described in Mitchforce. The award on its face prescribes ordinary hours of work in cl 5 in a manner consistent with s 22 of the Industrial Relations Act. Whether cl 12(v) should have been made because of the terms of s 22 is essentially a question for the Commission as award-maker. Clause 12(v) does not, on its face, suggest that the hours permitted are literally "ordinary working hours" such as to give rise to a breach of the so-called Hickman principle although the award-maker might well conclude that such a provision should not be made having regard to the requirements of s 22. There is also no substance in the respondent's contention that the relevant award provision was void. 52 There are other compelling considerations which should be referred to. There have been a number of statutory predecessors to s 179. These include s 58 of the Industrial Arbitration Act 1912, s 8(14) of the Industrial Arbitration Amendment Act 1926 and ss 27 and 84 of the Industrial Arbitration Act 1940. It is not necessary to set out the detail of those provisions because their relevance will sufficiently appear from our reference to the relevant cases to which we now turn. 53 In 1927 the High Court decided Morgan v Rylands Brothers (Australia) Limited (1927) 39 CLR 517. In that case the Full High Court held, on appeal from the Full Court of the Supreme Court of New South Wales, that the Supreme Court had no jurisdiction to entertain a suit for a declaration that an award was a nullity, even if there had been some procedural irregularity on the face of the proceedings before the Conciliation Committee which had purported to make the award. Although there were three separate judgments delivered it is sufficient to note that all of the judgments relied upon the terms and effect of s 8(14) of the 1926 Act earlier referred to, which provided that "the validity of any proceedings or decision of a committee or a chairman of a committee shall not be challenged except as provided by this Act". 54 It is also relevant that s 9(5) of the same statute provided that an appeal from an order or award of a conciliation committee lay to the Industrial Commission constituted under the statute. Our researches indicate that the judgment of the High Court in Morgan v Ryland Brothers was consistently applied by the Industrial Commission over the next 30 years although the statutory provisions referred to were different and the particular cases usually arose in consideration of appeals from the Chief Industrial Magistrate. The cases include Railway Commissioners for New South Wales v Langshaw [1928] AR (NSW) 557; Grossy v Lynch [1934] AR (NSW) 155; Reo Motors Pty Limited v Bagnall [1947] AR (NSW) 753; and Long v Fishers Food Pty Limited [1955] AR (NSW) 501. They indicate a continuous and consistent line of authority that awards of the former Industrial Commission and of the Conciliation Committees established under the relevant industrial legislation should not be permitted to be the subject of collateral attack either in the Supreme Court or in other proceedings, for example in proceedings to enforce the award. The absence of cases after 1955 would seem to indicate that, by then, the principle was well settled. 55 The only material change that has occurred by the enactment of s 179 is that the stringency of the provision which denies the ability of a litigant to collaterally attack an award of the Commission is even more stringent than it was. There are sound policy reasons for following the line of authority stretching back now over three quarters of a century. It is regrettable that these authorities were not drawn to the attention of the trial judge but the importance of those authorities and the policy evidenced by them makes plain the appropriateness of his Honour's decision being reconsidered and overturned in the light of the authorities. 56 There is a further and additional ground for the orders made by his Honour to be set aside. There is clear power in the Commission, in its arbitral jurisdiction to deal with the issue raised by the respondent, and for the Commission to do so on its own motion: see s 11(1)(a) and s 17(3)(c) of the Industrial Relations Act. The existence of that power provided a strong discretionary basis not to make the orders which were made at first instance. 57 The power gives the Commission a broad discretion to review the provisions of an award or, if necessary, the previous decision which led to their making, unaffected by the operation of s 179: Re Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 (2002) 124 IR 1 at 9. There are sound and compelling policy reasons for the validity of the terms of awards to be dealt with by the Commission since it will do so after hearing from the parties to the award and, where necessary, adjust appropriately the interests of the employees or employers affected by it. Further, the power of the Commission to do so of its own motion has the practical effect of removing, in appropriate cases, any issues as to the standing of individual employees or employers to raise issues of validity. 58 Before making orders in this appeal we should refer to one other consideration. Although not dealt with in the submissions of the parties it is clear that the provision which was the subject of the proceedings before Marks J was inserted in the relevant award in 1994 prior to s 22 of the Industrial Relations Act 1996 coming into force. 59 The proceedings before his Honour related to a period between 6 March 2002, when the respondent commenced work pursuant to his second contract of employment at the domestic airline terminal occupied by Virgin Airlines, and 15 March 2004 when that employment was terminated. The only award in the record in the proceedings before us is the award made with effect from the beginning of the first full pay period to commence on or after March 2003 and a variation to the award which commenced from the first pay period on or after 12 September 2003. The 2003 award states that it rescinds and replaces an award made in 2001. Nothing turns on the fact that there was no award before his Honour covering the whole of the period the subject of the respondent's claim as it seems to have been common ground that, in relevant respects, the award that was in force from 2001 to March 2003 was relevantly in the same terms as the award contained in the appeal book. 60 It might have been germane, however, that when the relevant award variation was made in 1994 s 22 of the Industrial Relations Act 1996 was not in force but the provision that was in force was s 23 of the Industrial Relations Act 1991. That provision was in the following terms: (1) The number of ordinary hours of an employee fixed by an award must not exceed 40 hours per week, averaged over a 52 week period. (2) A provision of an award that is inconsistent with this section has no effect. 61 Unlike s 22 of the present statute, s 23(2) of the 1991 Act provided that a provision of an award that was inconsistent with the section had no effect. If s 22 had repeated that provision it is conceivable that a different result may have occurred in these proceedings. However, the legislature chose to phrase s 22 of the present statute in different terms to the counterpart section in the 1991 Act, with no reference to award provisions potentially lacking effect, and it is thus unnecessary to say anything further about it. 62 We have therefore reached the conclusion that Marks J was in error in making the declaration he did. There was no power to make such a declaration. In any event, if there had been jurisdiction it would have been an inappropriate exercise of discretion to permit a collateral attack on an award in proceedings for declaratory relief pursuant to s 154 of the Act. 63 That is not to say, as was earlier observed, that the Commission is without power to remedy the situation where there are doubts raised as to the validity of an award provision. It is open to the Commission to deal with that matter either in the context of a review of the award under s 19 of the Industrial Relations Act or, as noted above, by virtue of the powers in s 11(1)(a) and s 17(3)(c) which empower the Commission to make or vary an award on its own initiative. In that respect, we note that the President will request the Industrial Registrar to issue a summons to the parties to the award to deal with this issue. Orders

64 We accordingly make the following orders in respect of this appeal: 1. Leave to appeal granted.

2. The appeal is upheld and the declarations made by Marks J on 13 December 2004 in Matter No IRC 3225 of 2004 are set aside. 3. The Full Bench notes the undertaking of the appellant to pay the legal costs of the respondent in an amount as agreed, or in the default of agreement, as assessed.

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