Case: Josephson v Walker [1914] HCA 68 ; (1914) 18 CLR 691
Outcome: referred to
Secondly, in relation to a further submission by REX that cl 23 of the Certified Agreement did not prohibit the performance of the Training Bond and did not intend to codify the issue of training for pilots covered by the Certified Agreement, her Honour after referring to cll 5, 8 and 61 of the Certified Agreement, dealt with cl 23 and cl 8 as follows: "Clause 23 exhaustively deals with the costs of training in a variety of circumstances in clear and unambiguous terms. It places the obligation for payment of the costs associated with training on the employer, except in very narrow and specific circumstances. Clause 8.5, dealing with termination of employment does not similarly create a right to seek repayment of a training bond. It is not logically possible for the employer to be required to bear all the costs associated with training, as is the case under the [Certified Agreement], and for that obligation to be passed to the employee in accordance with the terms of the Training Bond. I am not satisfied that the terms of the [Training Bond] can co-exist with the [Certified Agreement], they are clearly inconsistent. The terms of the [Certified Agreement] clearly prevail over inconsistent contractual terms. (I was referred to Josephson v Walker [1914] HCA 68 ; (1914) 18 CLR 691 on this point)." 39 Secondly, the decisions of Josephson v Walker [1914] HCA 68 ; (1914) 18 CLR 691; Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 437 and ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1 relied upon by REX do not support the submission that Mr Clarke was limited to relief under Pt VIII of the Workplace Relations Act and, in particular, was required to commence any proceedings by way of counterclaim. Each of the decisions is authority for the proposition that the remedy provided by the Workplace Relations Act for breach of a statutory instrument (including a certified agreement) (s 178) is exclusive: Josephson at 701; Gordonstone at 441 and ACTEW at 18. That proposition is irrelevant to the disposition of this appeal. Neither the Magistrates' Court nor this Court was required to, or asked to, consider a breach of the Certified Agreement or to make a declaration of right in relation to it. 44 Although it is not possible to contract out of a statutory instrument ( Josephson at 700; Kidd v Savage River Mines (1984) 6 FCR 398 at 409-410; Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 at 421; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at [23] to [33] and McLennan at 125), that does not prevent an employment contract conferring additional benefits upon an employee over and above those conferred by a statutory instrument: Givoni at [29] to [35] and the authorities referred to. These latter cases were concerned with awards, however the same principles apply to certified agreements: see Ardmona Foods Ltd at [16] and [31]; Amcor Ltd v Construction, Forestry, Mining and Energy Union ("CFMEU") [2003] FCAFC 57 at [34] and Amcor Ltd v CFMEU [2005] HCA 10 ; (2005) 214 ALR 56 at [144] per Callinan J.