Case: NTEIU v University of Wollongong [2002] FCA 31
Outcome: cited
third major difficulty only confronts the applicant's case if it be assumed that the appointment of the second respondent to the classification of Leading Firefighter was in breach of the Award or the Certified Agreement. The difficulty is that of concluding that something done in breach of the relevant clauses of the Award and the Certified Agreement is to be treated as a nullity, in consequence of the breach. As I have said, none of the relevant provisions of the Award or the Certified Agreement appears to impose on the first respondent any obligation only to appoint to classifications persons with the required experience, much less any mandatory obligation. The question whether non-compliance with a statutory provision results in a particular act being treated as void no longer depends on the classification of the provision as mandatory or directory. Since Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [91] - [94] , it has been recognised that it is necessary to gather from the statute, or statutory instrument, as a whole the intention that non-compliance should lead to invalidity, before a conclusion can be reached that a non-complying act is to be treated as void. It is certainly not the case that non-compliance with an award made under the WR Act would necessarily lead to the conclusion that an act was void. See Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 426-429 per Brennan CJ, Dawson, Toohey JJ and 453-457 per McHugh and Gummow JJ, and NTEIU v University of Wollongong [2002] FCA 31 at [38] - [39] . In the application of the approach favoured by Project Blue Sky , there are some guiding principles. One such guiding principle is that, where Parliament has chosen to make an act done in contravention of a statutory provision punishable by a specified penalty, it is unlikely that Parliament also intended other consequences, such as the invalidity of the act, to follow. See Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410 at 429 per Mason J, with whom Aickin J agreed. In the present context, Parliament has chosen in s 178 of the WR Act to enforce obligations in awards and certified agreements by means of the imposition of civil financial penalties. As a consequence, it is unlikely that it also intended that acts done in contravention of the provisions of awards and certified agreements should be treated as void. To the extent (if any) to which the particular terms of an award or a certified agreement might disclose an intention that contravention is to lead to invalidity, they certainly do not do so in the present case. It would be extremely difficult to argue that a failure to observe strictly the elements of a definition, in the appointment of a person to a particular classification, would result in the invalidity of that appointment. As I have said, only if the appointment of the second respondent as a Leading Firefighter were to be regarded as invalid would it follow that there were contraventions of any of the relevant clauses of the Certified Agreement.