Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch - [2003] WASCA 102

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: BURSWOOD RESORT (MANAGEMENT) LTD -v- AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, WESTERN AUSTRALIAN BRANCH [2003] WASCA 102

CORAM: SCOTT J (DEPUTY PRESIDING JUDGE)
HASLUCK J
MCLURE J

HEARD: 1 APRIL 2003

DELIVERED : 13 MAY 2003

FILE NO/S: IAC 1 of 2003

BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD
Appellant
AND
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, WESTERN AUSTRALIAN BRANCH
Respondent

Catchwords:

Industrial law - Western Australia - Industrial Relations Act 1979 (WA), s 41(6) - Clause 45 of Burswood International Resort Casino Employees' Industrial Agreement 2001AG 169 of 2001 - Whether cl 45 is repugnant or inconsistent with s 41(6) - Whether 2001 Agreement continued in force after nominal expiry date - Whether Commission had jurisdiction to make award - Section 41(6) extends agreement to avoid a gap between expiry of agreement and replacement

Legislation:

Industrial Relations Act 1979 (WA), s 27(1)(a)(ii), s 41, s 41(6), s 41(7), s 41(8), s 41(9), s 42, s 83, s 90(1)(b), s 114

Labour Relations Reform Act 2002 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: Mr R L Le Miere QC
Respondent: Mr D H Schapper & Mr D J Kelly

Solicitors:

Appellant: Clayton Utz
Respondent: Derek Schapper

Case(s) referred to in judgment(s):

A v Hayden (1984) 156 CLR 532
ALHMWU v Burswood (No 1) [2002] WAIRC 05952; 82 WAIG 2112
Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 05952
Bond v Larobi Pty Ltd (1992) 6 WAR 489
Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2002] WASCA 354
Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2002] WASCA 355
Electrical Trades Union of Australia, New South Wales Branch v Nationwide News (1995) 92 IR 365
Felton v Mulligan (1971) 124 CLR 367
Gerraty v McGavin (1914) 18 CLR 152
Lieberman v Morris (1944) 69 CLR 69

Case(s) also cited:

Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 06347; 82 WAIG 4994
Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch and the Hospital Salaried Officers Association of Western Australia (Union of Workers) v Activ Foundation (Inc) [2000] WAIRC 00472; 80 WAIG 4994
Griffin Coal Mining Co Ltd v The Coal Miners Industrial Union of Workers of Western Australia [2000] WASC 107

SCOTT J (DEPUTY PRESIDING JUDGE): This is an appeal from the Commission in Court Session of the Western Australian Industrial Relations Commission delivered on 17 December 2002. By that decision the Commission in Court Session made the Burswood International Resort Casino Employees Award 2002 ("the award") in substitution for the Burswood International Resort Casino Employees Industrial Agreement 2001 ("the 2001 Agreement") and the Burswood Island Resort Employees Award of 1985.
The legal proceedings between the appellant and respondent have a long and complex history. This is the third occasion upon which disputes between the parties have been considered by the Industrial Appeal Court.
The first of those appeals was the subject of decision in Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2002] WASCA 354. That decision involved a different appellant to the present. The appellant in that case was part of the Burswood Group. That case involved a challenge to the issue of an award to cover the employees of the appellant. The Industrial Appeal Court held that the Commission in Court Session was not in error in making that award. It is not necessary to revisit that matter in any detail for the purposes of this appeal.
The next appeal, which involved this appellant, concerned a challenge to the jurisdiction of the Industrial Relations Commission to hear an application for an award to replace the 2001 Agreement. The application for that award was lodged with the Industrial Relations Commission on 10 July 2002, 10 days after the expiry of the 2001 Agreement. That agreement provided for its expiry on 30 June 2002. That appeal was heard by Scott J (Deputy Presiding Judge), Hasluck and Heenan JJ and the Court decided that the Commission had jurisdiction to hear the application for the award. That decision in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2002] WASCA 355 was delivered on 18 December 2002, the day after the award presently under consideration was made by the Commission in Court Session. I would comment in passing that it was surprising that the Commission in Court Session made the award at a time when a decision in relation to its jurisdiction to do so was being considered by the Industrial Appeal Court. That having been said, however, as the Industrial Appeal Court unanimously determined that the Commission had jurisdiction to consider the application for the new award, no injustice has been caused. As will become apparent in the course of these reasons, the manner in which the 2001 agreement was replaced by the award is a matter of controversy.
The notice of appeal to this Court appeals against the whole of the decision of the Commission in Court Session below on the ground that:
The Commission in Court Session erred in law by wrongly construing or interpreting s 41(6) of the Industrial Relations Act 1979 ("the Act") and cl 45 of the Burswood International Resort Casino Employees Industrial Agreement 2001 AG 169 of 2001 ("the 2001 Agreement") by:
(a)holding that cl 45 of the 2001 agreement is, in part, repugnant to and inconsistent with s 41(6) of the Act; and
(b)concluding that cl 45 of the 2001 Agreement does not preclude a party from seeking a new award whilst the 2001 Agreement continues in force.
The appellant in this appeal seeks to have the decision of the Commission in Court Session quashed and the application for the award dismissed.
The appeal to this Court lies under s 90 of the Industrial Relations Act 1979 ("the Industrial Relations Act") which provides:
"90. Appeal to Court from Commission
(1)Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session -
(a)on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not on an industrial matter;
(b)erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c)on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
(2)An appeal under this section shall be instituted within 21 days from the date of the decision against which the appeal is brought and may be instituted -
(a)by any party to the proceedings wherein the decision was made; or
(b)by any other person who was an intervener in those proceedings.
(3)On the hearing of the appeal the Court may confirm, reverse, vary, amend, rescind, set aside, or quash the decision the subject of appeal and may remit the matter to the President, the Full Bench, or the Commission in Court Session, as the case requires, for further hearing and determination according to law.
(3a)If any ground of the appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant, the Court shall confirm the decision the subject of appeal unless it considers that there is good reason not to do so.
(4)The Court may at any time, if it considers that to do so will not prejudice any party to an appeal under this section -
(a)correct clerical mistakes in its judgments or orders, or errors arising in its judgments or orders from accidental slips or omissions; and
(b)generally correct any minor irregularities in its proceedings."
Counsel for the appellant contends that this Court has jurisdiction to deal with the matter because it is said that the decision of the Commission in Court Session was erroneous in law in that there had been an error in the construction or interpretation of s 41(6) of the Industrial Relations Act and also cl 45 of the 2001 Agreement.
It should also be mentioned as part of the history of this application that on 8 March 2002 the respondent applied for a new award during the term of the 2001 Agreement. A preliminary point was taken in the Industrial Relations Commission that the Commission had no jurisdiction to determine the claim because of the operation of cl 45 of the 2001 Agreement which is set out later in these reasons. The Commission in Court Session determined that whilst it had jurisdiction to hear and determine the claim, it should not do so in the public interest whilst the 2001 Agreement was still in its term. It is not necessary to refer in any greater detail to that decision of the Commission in Court Session: ALHMWU v Burswood (No 1) [2002] WAIRC 05952; 82 WAIG 2112.
As I have already indicated, shortly after the 2001 Agreement expired the respondent to this appeal lodged a second application for a new award which resulted in the decision of the Commission in Court Session which is the subject of the present appeal.
As can be seen from these reasons already, central to the appeal is the construction of s 41 of the Industrial Relations Act and, in particular, s 41(5) s 41(6), s 41(7), s 41(8) and s 41(9). Those sections provide:
"(5)An industrial agreement shall operate -
(a)in the area specified therein; and
(b)for the term specified therein.
(6)Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first‑mentioned agreement has been made.
(7)At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement.
(8)When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement ('the first agreement'), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.
(9)To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise."
The other matter central to the appeal is cl 45 of the 2001 Agreement which provides:
"45. NO EXTRA CLAIMS
The company and the union agree that there will be no extra claims for the term of this agreement and whilst it continues in force."
Counsel for the appellant contends that by reason of the provisions of s 41(6) of the Industrial Relations Act the 2001 Agreement continued in force notwithstanding its expiry so that cl 45 of the 2001 Agreement prevented any extra claims from being made until such time as a party or parties retired from it. It was submitted that, as no party had retired from the 2001 Agreement, s 41(6) continued the agreement in force. It follows, so counsel said, that the Commission had no jurisdiction to make the award the subject of the present appeal.
In support of that contention, senior counsel for the appellant referred to the majority judgment of Hasluck and Heenan JJ in Burswood Resort (Management) Ltd v ALHMWU (supra) and in particular the judgment of Hasluck J (with whom Heenan J agreed) at [58] and [59]:
"58I see considerable force in the submissions made by counsel for the appellant. In my view, the effect of s 41(6) of the Act is to keep in force the 2001 Agreement until such time as a party to it retires from the agreement in the manner provided for by s 41(7) of the Act. It follows from earlier discussion that such a construction appears to be consistent with the scheme of the legislation.
59When an award or an industrial agreement comes into effect both parties should be able to assume that the relevant arrangements will continue to apply until new arrangements are made in accordance with the prescribed procedure. In many cases, a new agreement will have been negotiated before the former agreement expires. In such a case, upon retirement from the existing agreement, the new agreement will come into effect immediately. If a new agreement cannot be negotiated, as in the present case, the relationship between the parties will be controlled by an underlying award. This will protect the position of the employee if it becomes necessary to retire from the existing agreement in the manner contemplated by s 41(7) of the Act in order to apply for a new award."
The first thing that should be said about that passage is that it was not necessary for the decision. As I have said, each of the Judges in that matter agreed that the Commission had jurisdiction to deal with the application for the award.
One question that falls for consideration in this appeal is whether there is any inconsistency between cl 45 of the 2001 Agreement and s 41(6) of the Industrial Relations Act. In my view, there is no inconsistency. As I said in Burswood Resort (Management) Ltd v ALHMWU (supra):
"In my opinion, s 41(6) of the Industrial Relations Act serves two purposes, namely:
(1)that it extends the operation of an industrial agreement beyond its expiry date in circumstances where the parties have not retired therefrom until a new agreement or award has been made. In other words, the agreement does not expire on its termination, but continues until it is replaced by any one of the methods contemplated by the section.
(2)To act as a transitional provision governing the parties' relationship between the expiration of the agreement and the time when a new agreement or award is made. The section acts as a transitional provision which is reflected in s 41(8) set out earlier in these reasons. The effect of that subsection is, that once either the new industrial agreement, new award, or new enterprise order replaces the existing industrial agreement, then the earlier agreement is taken to be cancelled, except to the extent that the new agreement, award or order preserves any of the provisions of the earlier agreement."
The way in which the argument for the appellant was advanced, there is no reason for a fixed term in the agreement. The submission is that the agreement runs on indefinitely until one of the parties retires therefrom pursuant to s 41(6) of the Industrial Relations Act. In my view, such a construction is untenable. It should be borne in mind that the 2001 Agreement provided for such things as rates of remuneration and hours and conditions of work. In the context of Industrial Relations legislation it is difficult to accept that the parties would tie themselves to an agreement on an indefinite basis. As I said in the judgment to which I have just referred, it is consistent with the underlying philosophy of the Act that the parties enter into an agreement only for a fixed term. The reason why s 41(6) extends the term is to avoid any gap between the expiry of the agreement and its replacement either with a new agreement or an award. In this case the respondent pursued an award to replace the 2001 Agreement. Upon the coming into operation of that award pursuant to s 41(8) of the Industrial Relations Act set out earlier in these reasons, the 2001 Agreement was thereby cancelled.
Although it is not necessary to reach any concluded view as to the correct construction of cl 45 of the 2001 Agreement, it may be possible to construe that clause by reference to the underlying intention of the parties.
One possibility is that the clause may be construed to mean that during the term of the agreement and any statutory extension thereof, the parties agree to be bound by, and abide by, the provisions of the agreement. In that sense the clause would mean that the parties would be unable to seek any variation of, or additions to, the agreement whilst it is in force either during its term or during any statutory extension.
As I have already said, it is not necessary to reach any concluded view on the proper construction of the clause in these proceedings. If the view which I have just expressed is the correct construction of the clause, then it would preclude any of the parties from seeking a variation of or addition to the agreement during its term. It would not, however, prevent negotiations for a new award or agreement during the term of the agreement.
In expressing these views as to the possible construction of cl 45, I accept that it involves straining the language of the clause. However, bearing in mind that counsel have said that the agreement was drawn up by lay parties, it is at least possible that the clause, although inelegantly worded, could ultimately be determined to have that meaning.
The effect of construing the Act and the agreement in this way is that the terms and conditions of the employees governed by the 2001 Agreement would continue to be governed either by the 2001 Agreement or the new award. Those employees would not be forced to return to any underlying award even if such an award continued to exist.
It is also to be noted that under s 41(5) set out earlier in these reasons the two essential matters required for every industrial agreement are that:
1.There is an area specified; and
2.There is a term specified.
In my opinion, it is clear from that provision that the legislation did not contemplate that there should be an agreement of indefinite term. It would be inconsistent with the underlying philosophy of the Industrial Relations Act that workers should be tied to agreements without recourse to the Industrial Arbitration Commission for indefinite periods. For that reason, in my opinion, the legislature provided that an industrial agreement could only be for a finite term. As I have also said, to avoid any gap between the expiration of that term and the coming into operation of the new arrangement to replace the industrial agreement, s 41(6) operates so as to continue the agreement in force, notwithstanding its expiry, until such time as it is replaced by one of the methods referred to in that subsection.
Counsel for the appellant also contended that the word "claims" in cl 45 should be construed so as to mean a formal claim made in the Industrial Relations Commission. It was contended that negotiations between the appellant and respondent would not breach the clause because those negotiations would not constitute "claims" within the meaning of that clause. In support of that contention counsel for the appellant referred to Electrical Trades Union of Australia, New South Wales Branch v Nationwide News (1995) 92 IR 365 ("ETU"). That case involved an industrial agreement which provided for various wage increases throughout its life and ultimately with an expiry date of 1 July 1996. The no extra claims clause in that agreement provided:
"During the period of this agreement from 1 January 1995 to 1 July 1996 it is agreed that neither party will pursue additional claims outside the terms of this agreement."

It is to be noted that there is a distinction to be drawn between the clause in that case and the clause in this. In this case there is no reference to "pursuing" additional claims, although that distinction may be of little importance.
In the ETU case the New South Wales Industrial Relations Commission held:
"The ETU argues that the no extra claims commitment contained in the various accord Mark VII agreements only restricts claims to subject matters which are provided for, in terms, in those agreements. It is argued that the issue of changed rosters of ETU members at Chullora is a local matter extraneous to the Accord agreements and is not prohibited by the commitment from being pursued. In support of its argument the ETU refers to a willingness of the employer to discuss with the unions, during the currency of the Accord agreements, various industrial matters and to implement agreements consequently reached.
This argument cannot be accepted, if for no other reason than that the commitment is not directed towards stifling discussion and agreement as to industrial matters, but rather to prohibiting the pressing of unauthorised claims against the will of the other party.
In our view, perusal of the terms of the agreements discloses the clear intention of the parties that claims as to matters not specifically authorised by those agreements as being available for further negotiation are prohibited from being pressed against an unwilling party either in the context of industrial action or in arbitral proceedings."
In that case the Industrial Relations Commission held that the agreements prevented the pursuit of the claims that were then being sought during the currency of the agreement. In my view, that decision is of no help to the appellants. The parties in this case selected a term for the 2001 Agreement. That term, as I have already indicated, expired on 30 June 2002. I accept that it was not possible for the respondent to have made further claims against the appellant in relation to matters covered by the agreement until its expiry. I express no view, because it is unnecessary to do so, as to whether claims for matters falling outside the agreement could be pursued during its term.
Importantly, in my opinion, the application for the present award was made by the respondent after the expiry of the term.
As McLure J said in the course of argument, the correct approach to this problem is to construe the Act first and then consider the agreement. I agree with that approach.
In this case, in my opinion, s 41(6) of the Industrial Relations Act is, as I said in the previous judgment in this matter, is designed to avoid a gap between the expiry of an agreement and the coming into existence of a new industrial agreement, award or order to replace it. If there was no such provision, then there would be a real possibility that employees could be paid lower rates of pay and enjoy different terms of employment during the period between the expiry of the agreement and the coming into operation of the replacement award, order or industrial agreement. That is a possibility which, in my view, this legislation was drafted to avoid. The mechanism by which that was achieved was to extend the operation of the industrial agreement until such time as it was replaced in one of the three methods contemplated by s 41(6) of the Act, that is, by:
1.The coming into operation of a new agreement;
2.The coming into operation of a new award; or
3.By retirement of a party from the agreement after its termination.
In my view, s 41(8) set out earlier in these reasons is consistent with that view. The effect of the coming into operation of the award in this case was to cancel the 2001 Agreement from the date of the operation of the award. That in turn meant that the employees governed by the new award would move from the agreement to the new award from the date of coming into operation of that award.
Whilst, in my view, there is nothing inconsistent between cl 45 and s 41(6), in case I be wrong in that view, in my opinion, cl 45 would have to be read down to the extent of any inconsistency: Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 05952, at [14].
For these reasons I am of the opinion that the grounds of appeal have not been made out and that the Commission in Court Session was not in error in making the award the subject of the appeal. The appellant's argument, if successful, would result in the award being quashed. If that

was to happen, then the agreement would continue in force until such time as one of the parties to the agreement replaced it in one of the ways available under s 41(6), that is, by a new agreement or award. To negotiate such an agreement or award may take considerable time after the retirement from the agreement. In my opinion, the legislature could not be taken to have intended such an anomaly.

For these reasons I am of the view that the appeal should be dismissed.
HASLUCK J: I have had the advantage of reading in draft the reasons for judgment of the Deputy Presiding Judge. His Honour has set out the history of the proceedings and the terms of the relevant statutory provisions. It will therefore be sufficient for me to refer to the facts and matters underlying the present appeal in a summary form.
It is apparent from the narrative that the parties have been involved in two previous appeals, the first of which may now be disregarded. I accept that the observations I made (with which Heenan J agreed) in the second appeal, Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2002] WASCA 355 at par 58 and par 59 were obiter dicta, with the result that the issues raised in this, the third appeal are not in any sense foreclosed by the prior ruling. For ease of reference, I will call the case I have just cited, the "second Burswood appeal".
The 1985 Burswood Award commenced on 24 February 1987. Subsequently, between 1993 and 2001, a number of industrial agreements were made between the parties. Clause 4 of the 2001 Burswood Agreement provided that the term of the agreement shall be from the date of registration of the agreement to 30 June 2002. By cl 45 of the agreement "the Company and the Union agree that there will be no extra claims for the term of this agreement and whilst it continues in force".
It is common ground that negotiations between the parties prior to expiry of the term prescribed by cl 4 were unsuccessful. The areas of disagreement included wage rates and journey cover. Accordingly, on 10 July 2002, shortly after the term of the 2001 Burswood Agreement expired, the Union applied to the Commission in Court Session for a new award. The appellant company contended that the application did not raise an industrial matter and hence the Commission had no jurisdiction. However, on 28 August 2002 the Commission ruled that it had jurisdiction. On 17 December 2002 the Commission determined that it

would make a new award largely in terms sought by the respondent Union. A day later the Industrial Appeal Court handed down a ruling in the second Burswood appeal in which it affirmed that the Commission had jurisdiction in respect of the application for a new award.

At the substantive hearing concerning the proposed new award the appellant had contended that the Union's claim should be dismissed pursuant to s 27(1)(a)(ii) of the Industrial Relations Act 1979 on the ground that making the new award was not desirable in the public interest because the application for a new award infringed cl 45 of the 2001 Burswood Agreement which was kept in force by s 41(6) of the Industrial Relations Act.
The Commission in Court Session ruled against the appellant. It determined that it would not exercise its discretion to dismiss the Union's application on two related grounds; first, cl 45 does not prevent the Union from making claims after the term of the 2001 Burswood Agreement had expired because the words "and whilst it continues in force" in cl 45 were repugnant to and inconsistent with s 41(6) of the Act and were invalid; second, a no extra claims clause should not be interpreted to bar proceedings for a new award when the terms of such a clause are inconsistent with s 42 of the Act.
In this, the third Burswood appeal, the appellant renews its contention that cl 45 of the 2001 Burswood Agreement precludes the Union from applying for a new award. The appellant contends that the Commission in Court Session erred in law by wrongly interpreting the statutory provisions bearing upon the application of cl 45 to the circumstances of the present case.
In the course of my judgment in the second Burswood appeal, I observed that the Industrial Relations Act makes provision for the creation and enforcement of awards and industrial agreements affecting employers and employees with a view to removing or minimising disputes between the interested parties. The statutory provisions are designed to ensure that rights and duties are defined with certainty and not disputed unless and until the terms of the operative instrument and the relevant statutory procedures have been complied with.
In my view, cl 45 of the 2001 Burswood Agreement which precludes "extra claims for the term of this agreement and whilst it continues in force" is entirely consistent with the scheme of the legislation. Both parties should be able to assume that the arrangements made between them will continue to apply until new arrangements are made in accordance with the prescribed procedures.
These precepts are reflected in s 41 of the Industrial Relations Act which deals with industrial agreements. By s 41(5) an industrial agreement shall operate for the term specified therein. However, by s 41(6) provision is made for an agreement to continue in force in certain circumstances notwithstanding expiry of the term. This suggests that in circumstances where the agreement is working smoothly it is open to the parties to do nothing in which case the agreement will simply run on. The words "continue in force" strongly suggest that in a typical case all the provisions of the agreement will remain operative including a provision such as cl 45 whereby the parties agree that no extra claims shall be made.
I pause to say that, in my view, the term "claims" in this context refers to a formal claim for relief presented to a court or tribunal such as the Commission with jurisdiction to resolve any dispute underlying the claim: Electrical Trades Union of Australia, New South Wales Branch v Nationwide News (1995) 92 IR 365 (the "ETU case"). The term therefore covers an application to the Commission to arbitrate a new award. However, the clause does not preclude the parties from entering into negotiations with a view to resolving some difference of opinion or with a view to reaching agreement as to what arrangements are to be made by way of a new agreement or an award when the existing agreement comes to an end. A clause of this kind should generally be construed in a manner which is consistent with the scheme of the related legislation and, in this case, the relevant statutory provisions including s 41 and s 42 clearly contemplate that the parties will be at liberty to initiate bargaining for a new agreement towards the end or after the term of the current agreement subject to certain procedural constraints.
The terms of s 41(6) suggest also that if the parties are not prepared to let the agreement run on because they are in dispute then certain proactive or positive steps must be taken by one or both parties to signify that the existing arrangements are no longer satisfactory and are not to continue in force. The relevant procedure is designed to ensure, presumably, that the parties are not left in a state of doubt or ambiguity as to whether the existing agreement is to remain in force.
This view of the matter is inherent in the nature of an agreement based upon consensus, for it would be inimical to the spirit of such an agreement that it could be kept in place after expiry of the term contrary to the wishes of one party. It is inherent also in the structure of s 41 of the Act, for s 41(7) prescribes the positive step which is to be taken in order to bring the existing agreement to an end. In effect, it provides that at any time after, or not more than 30 days before, the expiry of an industrial agreement, any party may file a notice signifying his intention to retire from the agreement at the expiration of 30 days and "such party shall on the expiration of that period cease to be a party to the agreement". In other words, within a framework of statutory provisions which allow for the agreement to run on after the term has expired, s 41(7) requires that a specific step be taken, namely, the giving of notice of intention to retire, in order to bring the agreement to an end.
I have already observed that there is nothing in these and related provisions to prevent one or both parties commencing negotiations for a new agreement prior to the expiry of the prescribed term of the existing agreement. If the parties have negotiated a new agreement shortly before the term expires, then, absent a no extra claims clause, the new agreement can take effect immediately after the current term expires. Section 41(6) envisages that where an existing agreement is kept in force after expiry of the term it will be brought to an end either by the making of a new agreement or by the giving of notice of intention to retire. Section 41(8) provides that when a new agreement is made the prior agreement is cancelled. On the other hand, if the negotiations have not been brought to a conclusion within the current term, s 41(6) will keep the existing agreement in force, without any hiatus, until the negotiations are completed.
Put shortly, the scheme of the legislation appears to be that in a case where consensus can be achieved, the former regime will be brought to a clear and decisive end by the making of the new agreement. To that extent, I agree with Scott J that s 41(6) can be regarded as a transitional provision which is designed to avert the unwanted consequence of there being a hiatus between one regime and another simply because negotiations were not completed prior to expiry of the term. I agree also with the view that there are essentially three ways in which an agreement will be brought to an end, being either the making of a new agreement (when consensus can be achieved) or the giving of notice of intention to retire (when consensus cannot be achieved) or the making of an award (provided the prior agreement did not contain a no extra claims clause which has been kept in force by s 41(6) of the Act).
This brings me to the situation in which consensus cannot be achieved. If, as the end of the term approaches, the parties are in dispute and there is obviously no prospect of any fresh agreement or award being negotiated it is quite clear from the statutory provisions that either party is at liberty to file notice of intention to retire and thus to ensure that the agreement does not continue in force after the term has expired in the manner allowed for by s 41(6) of the Act. In that event, the dispute will probably be brought before the Commission by one party or the other as an industrial matter. It is immediately obvious, on this scenario, that there may indeed be a period of hiatus between the existing agreement and the taking effect of new arrangements either as an award approved by the Commission in the course of resolving the industrial matter or as a new agreement arrived at after a fresh round of negotiations.
To my mind, it should not be thought surprising that a hiatus may occur between the ending of one set of arrangements and the commencement of new arrangements. An industrial agreement, like any agreement, depends upon consensus. If consensus cannot be achieved when the term expires then the parties are inevitably at risk that a period of hiatus will occur.
To a certain extent, the statutory provisions seek to ameliorate the possibility of hiatus. Thus, as I have noted, s 41(6) provides for the existing agreement to continue in force unless a positive step is taken to bring it to an end by way of notice of intention to retire. Further, in circumstances where one or both parties conclude as the end of the term approaches that no consensus can be achieved, s 41(7) allows for notice of intention to retire to be given 30 days prior to expiry of the term, so that the party principally at risk will have at least 30 days within which to take remedial action to safeguard its position. It will also often be the case that the practical consequences of any hiatus will be ameliorated by the presence of an underlying award.
Nonetheless, as an industrial agreement ultimately depends upon consensus there must inevitably be a risk of hiatus. If the legislature had been absolutely determined that no hiatus should (or could) occur then it would not have made provision in s 41(7) for a party to bring an existing agreement to an end by the giving of notice of intention to retire.
In my view, it follows from these observations that the need to avoid a hiatus should not be adopted as an overriding principle governing the way in which s 41 of the Act is to be interpreted. It is at this point, with respect, that I part company with the learned Deputy Presiding Judge. To my mind, the prospect that a hiatus could occur, which might, in turn, lead to applications for relief or legal proceedings, is likely to create an incentive for the parties to negotiate constructively with a view to bringing new arrangements into existence. I am not persuaded that the interpretation contended for by the appellant raises the disconcerting spectre of the parties being committed to an agreement for an indefinite term because, after the prescribed term expires, it is always open to a disaffected party to bring the agreement to an end by giving notice of intention to retire.
These general observations are reinforced by a consideration of the various provisions comprising s 42 of the Industrial Relations Act. These provisions deal with the initiation of bargaining for industrial agreements. They presume that the rights and duties defined by an existing agreement will be observed until positive steps are taken to introduce new arrangements in accordance with a prescribed procedure. Thus, s 42(5) provides that if there is an applicable industrial agreement in force, bargaining must not be initiated for an industrial agreement in the manner contemplated by s 42(1) earlier than 90 days before the nominal expiry date of the existing agreement.
Again, cl 45 of the 2001 Burswood Agreement appears to be entirely compatible with the credo reflected in these provisions. In both cases, the objective is to ensure that the parties will not be caught up in an endless round of negotiations throughout the term of the agreement. The expectation is that once an agreement is made it will be complied with until the expiry of the term approaches.
Against the background of these general observations, let me now return to the circumstances of the present case. It will be useful at this stage to look at s 41(6) and (7) in detail. These provisions read as follows:
"(6)Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first‑mentioned agreement has been made.
(7)At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement."

It was common ground at the hearing of the present appeal that the term of the 2001 Burswood Agreement expired on 30 June 2002. Consensus could not be achieved, but neither party gave notice of intention to retire either shortly before or after the expiry of the term in the manner allowed for by s 41(7). This inevitably meant, in order to give proper effect to the relevant provisions, that the agreement continued in force, notwithstanding expiry of the term.
It follows from my general observations that even if notice of intention to retire had been given by one or other of the parties after expiry of the term, the hiatus that would then have occurred could not be regarded as an arbitrary outcome because it is specifically allowed for by the scheme of the legislation. On that scenario, in circumstances where consensus could not be achieved, it would have been open to the respondent Union to apply for relief by way of a new award, as it has in fact done. If the underlying award, namely the 1987 Award, was thought to be not sufficient to safeguard the position of the employees represented by the Union, then presumably orders for interim relief or expedition would be sought. I note in passing that it was always open to the respondent to have ameliorated the risk of any unwanted consequences arising from a hiatus by giving notice of intention to retire 30 days prior to expiry of the term in the manner expressly allowed for by s 41(7) of the Act.
However, as it turns out, no notice of intention to retire was given by either side with the result that, on any view of the matter, as a consequence of s 41(6), the existing agreement continued in force.
In the case of an agreement which did not contain a clause such as cl 45, it would have been open to the respondent Union, in circumstances of acute disputation, to commence proceedings for a new award without delay. The effect of s 41(6) is that in the absence of any notice of intention to retire the existing agreements continue in force until it is replaced by a new agreement or an award.
In the present case, however, the presence of cl 45 gives rise to a complication. The conclusion that the 2001 Burswood Agreement continued in force after expiry of the term under and by virtue of s 41(6) of the Act leads inevitably to the further conclusion that cl 45 (precluding extra claims) continued in force also, and was in force as at 10 July 2002 when the respondent Union commenced proceedings for a new award. This, in turn, leads to a conclusion that the respondent Union was acting in breach of the agreement in applying to the Commission in court session for a new award.
The respondent sought to dispose of this bar to relief by contending that cl 45 upon its proper interpretation does not operate after the expiry of the term and, in any event, to the extent that it does operate beyond expiry of the term, it should be characterised as invalid on the grounds that it is inconsistent with and repugnant to the relevant statutory provisions, especially s 42.
It follows from my earlier general observations that, prima facie, a clause precluding extra claims while an agreement is in force is not inconsistent with or repugnant to the scheme of the legislation. It is inherent in the statutory provisions that the parties will comply with the terms of the agreement they have made until the agreement is brought to an end or replaced in accordance with a prescribed procedure which cannot be activated until the end of the term approaches. However, my provisional conclusion that the Commission erred in concluding that cl 45 is inconsistent with or repugnant to the statutory provisions has to be examined in more detail in the light of certain submissions made by counsel for the respondent Union as to the proper interpretation of cl 45.
Counsel for the respondent Union contended that on the proper construction of the no extra claims clause the word "and" is used cumulatively. That is, no extra claims can be made while the agreement is both in term and in force. If, as in the present case, the first of the two constituents of the clause is no longer present (in that the term has expired) then the clause precluding extra claims is no longer operative. On that view of the matter, it is not necessary to address any issue of inconsistency or repugnancy because cl 45 simply ceased to apply after 30 June 2002, and was therefore not a bar to the commencement of proceedings as at 10 July 2002.
I am not persuaded by this line of argument. To my mind, the word "and" in the sentence "that there will be no extra claims for the term of this agreement and whilst it continues in force" is a word connecting two discrete constituents of time. The term of the agreement defines a first limit of time, namely, the term of the agreement, and to that is added a further or outer boundary, namely, that the clause will operate while the agreement continues in force. Hence, as at 10 July 2002, when the respondent Union advanced a claim for a new award the prohibition reflected in the clause remained effective because the agreement as a whole was kept in force under and by virtue of s 41(6) of the Act.
The respondent Union went on to submit that upon a literal interpretation of cl 45 it would not be open to the parties to negotiate any future arrangements. On this reading, the term "claim" is said to be wide enough to embrace demands or discussion points of any kind in the context of negotiations for a new agreement as the end of the term approaches. Viewed in this light, cl 45 was said to be inconsistent with and repugnant to the scheme of the statutory provisions (as held by the Commission in court session) in that the statutory provisions clearly contemplate that the parties will be at liberty, subject to certain constraints, to initiate bargaining for industrial agreements.
The short answer to this contention, as I indicated in earlier discussion, is that the term "claims" in this context is not concerned with the stifling of discussion or negotiations. It should be construed harmoniously with the related statutory provisions. As the Court indicated in the ETU case (supra), the cl 45 prohibition is of a more limited kind than that contended for by the respondent in the present case. Clause 45 restricts only the pressing of unauthorised claims against the will of the other party with a view to obtaining relief in legal proceedings. Thus, if a formal claim for relief is presented to the Commission (such as the respondent Union's claim for a new award) whilst the no extra claims provision remains in force, the appellant is entitled to rely upon cl 45 as a basis upon which relief should be refused.
When I draw these various observations together I find no reason to depart from the views I expressed in the second Burswood appeal. I acknowledged in earlier discussion that these views were not necessary for the resolution of that appeal. Nonetheless, they are consistent with the conclusion I have arrived at in the circumstances of the present case in which consensus could not be achieved and the agreement contained a no extra claims clause. I refer in particular to the following observations at par 58 and par 59 of my reasons for decision in the second Burswood appeal:
"58.I see considerable force in the submissions made by counsel for the appellant. In my view, the effect of s 41(6) of the Act is to keep in force the 2001 Agreement until such time as a party to it retires from the agreement in the manner provided for by s 41(7) of the Act. It follows from earlier discussion that such a construction appears to be consistent with the scheme of the legislation.
59.When an award or an industrial agreement comes into effect both parties should be able to assume that the relevant arrangements will continue to apply until new arrangements are made in accordance with the prescribed procedure. In many cases, a new agreement will have been negotiated before the former agreement expires. In such a case, upon retirement from the existing agreement, the new agreement will come into effect immediately. If a new agreement cannot be negotiated, as in the present case, the relationship between the parties will be controlled by an underlying award. This will protect the position of the employee if it becomes necessary to retire from the existing agreement in the manner contemplated by s 41(7) of the Act in order to apply for a new award."
It follows from these and my earlier observations that, in my view, in the absence of any notice of intention to retire on either side in the manner allowed for by s 41(7) or the making of any new agreement, the 2001 Burswood Agreement continued in force after expiry of the term on 30 June 2002. This meant that cl 45 continued in force and was in force when the respondent Union presented and pursued a claim for a new award. Upon its proper interpretation, cl 45 precluded the bringing of a formal claim for relief whilst the agreement continued in force, notwithstanding expiry of the term. For the reasons I have given, a no extra claims clause of this kind cannot be regarded as inconsistent with or repugnant to the scheme of the legislation in the circumstances of the present case.
Thus, in my view, the Commission in Court Session erred in holding that cl 45 was invalid. Further, it erred in failing to take account of and give proper weight to the fact that the respondent Union as the applicant for a new award was apparently acting in a manner that infringed cl 45 of the existing agreement, being an agreement that was kept in force in the circumstances of the present case by the combined effect of s 41(6) and (7) of the Act. For present purposes, there is no need for me to go further and to make a determination as to how the Commission should have proceeded if it had taken proper account of and given weight to cl 45.
I consider that the appeal should be allowed and that orders should be made providing for the matter to be referred back to the Commission to

resolve the application for a new award having regard to the reasons of the Industrial Appeal Court in this appeal. I am conscious that, by s 90(3a) of the Act, if any ground of appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant, the Court shall confirm the decision the subject of the appeal unless it considers that there is good reason not to do so. However, in the circumstances of the present case, I consider that the appellant has succeeded on appeal in respect of a significant issue and this constitutes a good reason why the decision below should not be confirmed.
MCLURE J:

Introduction

This is an appeal under s 90(1)(b) of the Industrial Relations Act 1979 (WA) ("Act") from the decision of the Commission in Court Session to make a new award entitled the Burswood International Resort Casino Employees Award 2002 ("the 2002 Award"). The 2002 Award was made, on the application of the respondent, in substitution for the Burswood International Resort Casino Employees Industrial Agreement 2001 ("the 2001 Agreement").
The 2001 Agreement was registered and its term expired on 30 June 2002 (the nominal expiry date). Clause 45 of the 2001 Agreement provides:
"The Company and the Union agree that there will be no extra claims for the term of this agreement and whilst it continues in force."
The Commission in Court Session rejected the appellant's submission that the claim before the Commission should be dismissed under s 27(1)(a)(ii) of the Act on the ground that making a new award was not desirable in the public interest because the application was in breach of cl 45 of the 2001 Agreement.
The Commission determined that it would not exercise its discretion to dismiss the application for a new award on the grounds that:
(a)clause 45 did not prevent the union from making claims after the term of the 2001 Agreement had expired because the words "and whilst it continues in force" are repugnant to and inconsistent with s 41(6) of the Act and are invalid; and

(b)a no extra claims clause should not be interpreted to bar proceedings for a new award when its terms are inconsistent with s 42(1), (5) – (8) of the Act.

The appellant appeals to this Court against the whole of the decision of the Commission on the ground that:
The Commission in Court Session erred in law by wrongly construing or interpreting s 41(6) of the Act and cl 45 of the 2001 Agreement by:
(a)holding that cl 45 of the 2001 Agreement is, in part, repugnant to and inconsistent with s 41(6) of the Act; and
(b)concluding that cl 45 of the 2001 Agreement does not preclude a party from seeking a new award whilst the 2001 Agreement continues in force.
The appellant seeks to have the decision of the Commission quashed and the application for the award dismissed.
The resolution of this appeal depends upon the proper construction of the provisions of the Act concerning industrial agreements and of cl 45 of the 2001 Agreement.

History of Applications

Following unsuccessful negotiations between the appellant and the respondent, the respondent filed an application for a new award on 8 March 2002, more than three months before the expiration of the term of the 2001 Agreement (first award application). It was proposed that the term of the new award commence on and from the first pay period after 1 July 2002, that is, after the nominal expiry date of the 2001 Agreement.
The Commission determined that it had jurisdiction to hear the application but dismissed it on the ground that in bringing the claim for an award and seeking arbitration, the union was in breach of cl 45 of the 2001 Agreement. The Commission construed cl 45 as prohibiting an application for any award before the expiry of the term of the 2001 Agreement but not after it had expired.
On 10 July 2002, shortly after the expiry of the term of the 2001 Agreement, the respondent filed a second application for a new award. The appellant's submissions on jurisdiction were heard by the Commission as a preliminary matter. The Commission ruled that it had jurisdiction. The appellant appealed that ruling to this Court which dismissed the appeal: Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2002] WASCA 355. It is accepted that the observations made by Hasluck J in that appeal at par 58 and 59 (with which Heenan J agreed) were obiter dicta and thus not binding on this Court.

Scheme of the Act

The 2001 Agreement was executed on 16 August 2001 and registered by the Commission on 24 August 2001. Shortly after the respondent made its second (and successful) application for a new award, the Act was amended by the Labour Relations Reform Act 2002 (WA) ("Reform Act"). The Reform Act amended s 41 (by, inter alia, the addition of subsections (8) and (9)) and inserted s 41A (which prohibits registration of an agreement for a term longer than three years) and s 42 (referred to by the Commission in its reasons). These amendments came into effect on 1 August 2002.
Under the Act, an industrial agreement shall operate for the term specified therein: s 41(5). Subsections (6), (7) and (8) of s 41 provide:
"(6)Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first‑mentioned agreement has been made.
(7)At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement.
(8)When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement ('the first agreement'), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement."
Section 42 deals with the initiation of bargaining for an industrial agreement. Bargaining for an industrial agreement may be initiated by an organisation or association of employees or an employer or an organisation or association of employers giving an intended party to the agreement a written notice containing specified matters: s 42(1). However, if there is an applicable industrial agreement in force, bargaining must not be initiated earlier than 90 days before the nominal expiry date (being the expiry date specified in the agreement): s 42(5).
Section 41(6) of the Act provides for the statutory extension of the term of an industrial agreement and three ways to bring the statutory extension to an end. Firstly, by the parties entering into a new agreement. Secondly, by the Commission making an award in substitution for the agreement. Thirdly, a party can retire from the agreement which then ceases to apply to that party.
Further, the purpose and effect of subsections (6), (7) and (8) of s 41 of the Act is to avoid any interregnum after the nominal expiry date of an agreement. That is achieved by:
(a) the statutory continuation in force of the expired agreement until such time as a new industrial agreement is registered or an award (or enterprise order) is made in substitution for the expired agreement;
(b)alternatively, requiring any party who wishes to retire from the agreement after the nominal expiry date to give 30 days notice of an intention to retire. The retirement only takes effect at the end of the notice period, thereby giving the other parties to the statutorily extended agreement an opportunity to take steps to cover the gap that would or may arise as a result of the retirement.
It is clear from the scheme of the Act that the legislative intention is to permit fixed term agreements and to avoid a vacuum or alternatively an unacceptable fallback position, such as the reactivation of an outdated award in any transitional period, pending replacement of the agreement after its nominal expiry date.
Although s 41(6) in effect allows the agreement to continue to regulate the industrial relationship beyond the agreed term without limitation, that outcome can only be achieved with the consent and co‑operation of the parties and does not alter the characterisation of the statutory purpose.
Further, before the Reform Act amendment, the Act did not prevent claims for a new agreement or award being made before the nominal expiry date of an agreement. After s 42 of the Act was inserted by the Reform Act, bargaining for a new agreement cannot be initiated earlier than 90 days before the nominal expiry date.

The 2001 Agreement

I turn now to the proper construction of cl 45 of the 2001 Agreement, starting with the word "claims". The broader its scope the greater the apparent inconsistencies with the purpose and effect of the Act. The respondent's case is that it includes all claims whether made in the course of negotiations between the parties or by way of formal application to the Commission. The appellant's position is that claims are confined to demands that are being pressed, whether by application to the Commission or by industrial action. It was conceded by the appellant that a notice under s 42(1) of the Act would be a prohibited claim under cl 45 of the 2001 Agreement.
However, it is unnecessary to determine the scope of the term. It was common cause that the respondent's application for a new award under the Act was a claim for the purposes of cl 45 of the 2001 Agreement. The appellant says that on its proper construction, cl 45 narrows the statutory avenues for bringing the statutory extension of the 2001 Agreement to an end from three to two. That is, the respondent had by agreement confined itself to two theoretical options, being either to retire from the 2001 Agreement or enter into a new agreement with the appellant. As negotiations for a new agreement had failed, the respondent was left with only one option if it wished to apply for a new award and that was to retire from the 2001 Agreement.

Thus, a consequence of the appellant's construction of cl 45 is that the 2001 Agreement cannot be terminated by a substitute award. A further consequence of the appellant's construction of cl 45 is that the respondent could not make any application to the Commission for a new award until after its retirement from the 2001 Agreement took effect. These outcomes are inconsistent with the policy, purpose and effect of the Act.
My preliminary view was, and my considered view remains that on its proper construction cl 45 does not prohibit a claim for the substitution of the 2001 Agreement by a new agreement or an award to take effect after the nominal expiry date of the 2001 Agreement and that is so whether the claim is made before or after the nominal expiry date of the 2001 Agreement.
The reference in cl 45 to "extra" claims connotes a claim for entitlements that are in addition to that provided for by, and during the currency of, the 2001 Agreement. Thus, cl 45 only prohibits claims for extra (that is, additional) entitlements beyond those provided for in the 2001 Agreement which "extras" are intended to be operative whilst that agreement remains in force, either because the term has not expired or because the term has been statutorily extended. That construction gives effect to the language of the clause, is consistent with commonsense and is in harmony with the purpose and effect of the Act. Clause 45 is not intended to prohibit claims for a new agreement or new award to replace the 2001 Agreement after its nominal expiry date, an outcome which is expressly contemplated in s 41(6) of the Act.

Whether cl 45 Void

However, as the narrow construction of cl 45 is inconsistent with what the Commission held in the first award application and was not advanced by any party to this appeal, I will consider the matter on the basis that cl 45 prohibits the respondent from making an application for a substitute award before and after the nominal expiry date of the 2001 Agreement.
It is made clear in s 41(6) and (8) of the Act that the Commission has the power to make a new award in substitution of and which terminates the 2001 Agreement. It is also the case that the Commission will not make such a substitute award of its own motion but only on the application of a relevant party. It follows that the respondent has a statutory right under the Act to make an application for an award in substitution of the 2001 Agreement at any time before the agreement ceases to be in force. The central issue is whether the respondent can lawfully fetter that right by agreement and thus expose itself to a penalty for breach of the agreement under s 83 of the Act. That depends upon whether cl 45 or any aspect of it is illegal or otherwise void for public policy. A contract may be illegal if it is expressly or impliedly prohibited by statute. Further, a court may refuse to enforce a contract because it offends against a public policy: A v Hayden (1984) 156 CLR 532 at 571.
Ouster of jurisdiction is an example of a type of contract clause which can offend public policy and be void. One type of ouster clause still regarded as contrary to public policy is that which seeks to prevent the enforcement of a statutory right: Bond v Larobi Pty Ltd (1992) 6 WAR 489 at 497.
When a right is given by statute, the question of whether the person to whom the right is given may by contract forego it depends upon the interpretation of the legislation in question: Felton v Mulligan (1971) 124 CLR 367; Lieberman v Morris (1944) 69 CLR 69.
Section 114 of the Act would appear not to apply in this case. There being no express prohibition in the Act against contracting out of the relevant provisions, the matter must be determined by reference to the scope and policy of the Act: Lieberman v Morris (supra) at pp 78, 84, 86 and 88, 90.
In construing the Act it is proper to have regard to the legislation as it stands as at the date of enforcement of the contract not at its entry date: Gerraty v McGavin (1914) 18 CLR 152. In my view, the Act impliedly prohibits a party from contracting out of s 41 and s42. The Act regulates industrial agreements and in doing so evinces an intention for the legislative scheme to prevail so that the parties to an agreement are not free to contract out of its provisions. In particular, the Act requires that industrial agreements be for a specific term. The consensual and mutually binding contractual relationship ceases at the nominal expiry date. Thereafter, the relationship between the parties and the options available to them are regulated by statute. The statute extends the agreement to facilitate a smooth transition to its replacement at any time from the nominal expiry date of the agreement. It is not intended that an industrial agreement be used as a vehicle for altering the statutory scheme for facilitating the replacement of an industrial agreement after its nominal expiry date.
Further, there is nothing in the language of s 41 of the Act as it stood when the 2001 Agreement was entered into or now to suggest that there is any appropriate statutory ground to distinguish between steps towards a substitute award taken before or after the nominal expiry date of the relevant agreement. Insofar as cl 45 prohibits the respondent from taking steps for a substitute award as contemplated in s 41 of the Act it is to that extent void.
For these reasons, I would dismiss the appeal.