Warramunda Village Inc v Pryde [2002] FCAFC 58 Warramunda Village Inc v Pryde [2002] FCA 250 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Warramunda Village Inc v Pryde [2002] FCA 250 INDUSTRIAL LAW – awards – construction - industry practice – meaning of "work" – "sleepover shift" – whether worker on "sleepover shift" is at work or "on call" PRACTICE AND PROCEDURE – declaratory judgments – nature of – split trial – whether rights have been declared – whether final or interlocutory – issue estoppel – whether declaratory judgment can be void – setting down for trial – bringing forward trial date – discretionary considerations – prospective application to amend award WORDS & PHRASES – "work" Industrial Relations Act 1992 (Vic) Workplace Relations Act 1996 (Cth), ss 178(1), 178(6), 179A Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884 referred to Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1923) 18 CAR 852 referred to Attorney-General (Northern Territory) v Minister for Aboriginal Affairs (1987) 73 ALR 33 referred to Attorney-General v Foster (1999) 84 FCR 582 referred to Australian Builders' Labourers' Federated Union of Workers – Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 referred to Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 referred to Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2001] FCA 975 referred to Australian Telecommunications Corporation v Barnes (1995) 125 FLR 335 referred to Baker v R [1975] AC 774 referred to Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 referred to Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833 referred to Byrne v Australian Airlines Limited (1995) 185 CLR 410 referred to Caboche v Ramsay (1993) 119 ALR 215 referred to Cameron v Cole (1944) 68 CLR 571 referred to Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] AC 853 referred to Cassell & Co Ltd v Broome [1972] AC 1027 referred to Clarke v Chadburn [1985] 1 WLR 78 referred to Coles v Wood [1981] 1 NSWLR 723 referred to Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442 referred to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 referred to Duralla Pty Ltd v Plant (1984) 2 FCR 342 referred to Eastern Trust Co v McKenzie, Mann & Co Ltd [1915] AC 750 referred to Federated Gas Employees Industrial Union (1942) 48 CAR 85 referred to Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 referred to Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239 referred to Fraser v NRMA Holdings Limited (1995) 55 FCR 452 referred to Hadkinson v Hadkinson [1952] P 285 referred to Harrison-Broadley v Smith [1964] 1 WLR 456 referred to Holtby v Hodgson (1889) 24 QBD 103 referred to Hospital Employees' Industrial Union of Workers v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 discussed Humphris v Harbour Radio Pty Ltd (1999) 32 ACSR 537 referred to Inland Revenue Commissioners v Rossminster Limited [1980] AC 952 referred to International General Electric Company of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784 referred to Isaacs v Robertson [1985] 1 AC 97 referred to Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 referred to Jupp v Computer Power Group Ltd (1994) 1 IRCR 86 discussed Loudon v Ryder (No 2) [1953] 1 Ch 423 referred to Macks, re; ex parte Saint (2000) 75 ALJR 203 referred to Makhoul v Barnes (1995) 60 FCR 572 referred to Marra Developments Ltd v B W Rofe Pty Ltd [1977] 2 NSWLR 616 referred to McGarry v Boonah Clothing Pty Ltd (1993) 49 IR 66 discussed Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 discussed Miliangos v George Frank (Textiles) Ltd [1976] AC 443 referred to Minister for Immigration and Multicultural Affairs v Jia (2001) 75 ALJR 679 referred to Minister for Minerals and Energy, Re; ex parte Wingate Holdings Pty Ltd [1987] WAR 190 doubted Norbis v Norbis (1986) 161 CLR 513 referred to NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584 referred to Orica Ltd v Federal Commissioner of Taxation (2001) 182 ALR 77 referred to Ousley v R (1997) 192 CLR 69 referred to Peacock v Bell and Kendall (1667) 1 Wms. Saun 73; 85 ER 84 referred to Petreski v Cargill (1987) 18 FCR 68 referred to Posner v Collector for Interstate Destitute Persons (Vic) (1946)74 CLR 461 referred to Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 referred to R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] 1 KB 711referred to R v Walsall Justices; Ex parte W [1990] 1 QB 253 referred to R v Whiteway; ex parte Stephenson [1961] VR 168 referred to Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 referred to Residual Assco Group Ltd v Spalvins (2000) 74 ALJR 1013 referred to Sankey v Whitlam (1978) 142 CLR 1 referred to Scott v Bennett (1871) LR 5 HL 234 referred to Sparks v Harland [1997] 1 WLR 143 referred to Standard Discount Co v Otard de la Grange (1877) 3 CPD 67 referred to Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 referred to Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 814 discussed Walker v Corporate Affairs Commission (1988) 13 NSWLR 550 referred to Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 referred to Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 referred to E. Borchard Declaratory Judgments 2nd ed. 1941 Zamir and Woolf The Declaratory Judgment 2nd ed. 1993 WARRAMUNDA VILLAGE INC v DIANNE PRYDE and BERYL ANDERSON V 297 of 2001 LEE, FINKELSTEIN and GYLES JJ 20 MARCH 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 297 of 2001 On appeal from a single judge of the Federal Court of Australia BETWEEN: WARRAMUNDA VILLAGE INC Appellant AND: DIANNE PRYDE and BERYL ANDERSON Respondents JUDGES: LEE, FINKELSTEIN and GYLES JJ DATE OF ORDER: 20 MARCH 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 297 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WARRAMUNDA VILLAGE INC APPELLANT AND: DIANNE PRYDE and BERYL ANDERSON RESPONDENTS JUDGES: LEE, FINKELSTEIN and GYLES JJ DATE: 20 MARCH 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT LEE J: 1 The reasons prepared by Finkelstein J set out the relevant facts and issues in this appeal. 2 For the reasons set out below, I agree with Finkelstein J that the learned primary Judge did not err in construing the Health Services Union of Australia (Victoria – Private Sector) Interim Award 1993 ("the 1993 Award") and the Health and Allied Services – Private Sector – Victoria Award 1995 ("the 1995 Award"), and in determining that, for the purposes of the respective Awards, the respondents were engaged in "work" and were not "on call" when they performed "sleepover shifts" as instructed by their employer, the appellant. 3 His Honour declared that the appellant had "committed a breach or non‑observance" of the 1993 Award and of the 1995 Award (together referred to hereafter as "the Awards"). The declarations were based on his Honour's construction of the Awards and the application of the Awards so construed to facts found by his Honour. 4 The appellant seeks to have the declaratory orders set aside on the grounds that his Honour erred in law in construing the Awards or erred in making findings of fact to which the Awards were applied. The appellant did not contend that if the appellant failed to establish that his Honour so erred in law or fact in the foregoing respects that, nonetheless, his Honour erred in law in making the declarations, or in making the declarations in the form in which they appear in the order. 5 The Awards are statutory instruments that establish obligations to be observed by parties to an employment relationship to which the Awards apply. (See: Byrne v Australian Airlines Limited (1995) 185 CLR 410). 6 For the purposes of the appeal it is sufficient to consider the provisions of the 1995 Award. Under the 1995 Award an "employer" is bound to pay a person who provides services to the employer, an "employee", wages at the rates of pay set out in the Award. 7 The employees covered by the 1995 Award are described as "full-time" (cl 13), "part‑time" (cl 15), or "casual" (cl 14) employees. 8 The entitlement to remuneration under the 1995 Award for each class of employee is calculated by reference to a "weekly wage". The relevant weekly wage is contained in a column set out in cl 21 ("RATES OF PAY"). Clause 27 ("HOURS") provides that: "The hours for an ordinary week's work shall be 38, or be an average of 38 per week in a fortnight, or in a four week period or, by mutual agreement, in a five week period in the case of an employee working ten hour shifts…" 9 Pursuant to cl 27, an "ordinary week's work" is to be worked "in five days in shifts of not more than eight hours each" or, by mutual agreement, "in four days in shifts of not more than ten hours each". 10 Under cl 29 ("ROSTERS"), the employer must post in each work location a "roster of at least fourteen days duration" that sets out the "daily ordinary working hours" for which the employer requires an employee to report for duty and render service. It may be taken that the "daily ordinary working hours" is a shift described in cl 27. 11 Clause 31 ("OVERTIME") provides that "[a]n employer may require any employee to work reasonable overtime". "Overtime" may be taken to be time during which an employee provides service to, and at the direction of, an employer, in excess of the "daily ordinary working hours" an employee has been directed to work by the employer, or is in excess of the hours of an "ordinary week's work". 12 Clause 13 ("FULL-TIME EMPLOYMENT") defines a "full-time employee" as a person who is employed "to work a full week of thirty‑eight hours" and who is "ready, willing and available" to work for that period "at the times and during the hours as may be mutually agreed upon or…as prescribed by the employer". Clause 13 states that a full-time employee is to be paid "the full weekly wage…irrespective of the number of hours worked not exceeding thirty-eight". 13 In addition to the foregoing, cl 32 ("ON CALL/RECALL") permits an employer to direct an employee to be "on call" for a period in respect of which the employer has not directed the employee to be on duty, and permits the employer to recall an employee to duty in that period. 14 It can be seen that under the 1995 Award an employee's entitlement to remuneration is based on the obligation of an employee to attend the employer's place of work to provide service during a period nominated by the employer. A "full-time employee" is entitled to the remuneration of "the full weekly wage" notwithstanding that the employer may not direct the employee to attend the place of employment for the hours of an "ordinary week's work". 15 So understood, the consequence under the 1995 Award of the employer directing an employee to attend at the place of work to provide service as required during a "sleep-over shift" is reasonably clear. Pursuant to such a direction the employee is on duty, not "off duty", and the fact that the employee may, with the consent of the employer, sleep on duty does not convert part of that shift to a period that is "off duty". 16 The obligation of the employer to remunerate that employee under the 1995 Award arises from the act of directing the employee to be at the employer's place of work to render service to the employer in the employer's enterprise. A contrary construction cannot be said to arise out of a specific provision in cl 30 ("MEAL INTERVALS, REST BREAKS AND WASH UP TIME") to the effect that the period of a "rostered meal interval" is not to be counted as "time worked". An employee who is "on night duty…not relieved from duty (and 'on call')" at the time of the "rostered meal interval" is to be given a "meal interval" at another time, and that meal interval is to be counted as "time worked". Clause 30 also provides that time spent on "rest breaks" and "wash up" in the course of a shift, is to be counted as "time-worked". Therefore, the exclusion of a "rostered meal interval" from the hours of work of a shift other than a night shift is a limited provision that stands alone incapable of requiring other provisions of the 1995 Award to be construed contrary to their ordinary meaning. 17 It cannot be said that, in rendering a "sleep-over shift", an employee is "on call" within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but "on call" is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. (See: Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 (House of Lords)). An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work" for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees' Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456). 18 In directing an employee to perform a "sleep-over shift", an employer required an employee to attend the employer's place of work for a nominated period to render service as required by the employer. Employees assigned to "sleep-over shifts" were supervisors, whose responsibilities at the place of employment involved more, of course, than "active 'stand-up' duty". No doubt proper conduct of the employer's enterprise required the employer to have a supervisor available at the hostel in the course of a night shift. Anticipating that active duty by a supervisor on that shift would be intermittent and infrequent, the employer permitted the supervisor to sleep as opportunity allowed. From the perspective of an employee it made little difference whether a call on a "buzzer" was awaited at the place of work whilst the employee was conscious at a desk or asleep in a bed. How the employer required the employee to render service was a matter for the employer. 19 I also agree with Finkelstein J that the appellant has not demonstrated that his Honour erred in exercising the discretion vested in the Court to alter the date his Honour had set for hearing of submissions on penalty and consequential orders after his Honour had made findings on the issue of "liability". 20 His Honour was satisfied on the facts before him, which included failure of the appellant to make a timeous application to the Australian Industrial Relations Commission to amend the Awards, and the availability of an earlier date convenient to the Court, and to counsel, to dispose of the balance of the proceeding more expeditiously, that it was appropriate in all the circumstances to alter the date listed for the hearing of further submissions. 21 His Honour thought that such an exercise of discretion was supported in principle by McGarry v Boonah Clothing Pty Ltd (1993) 49 IR 66, which stated that it was not appropriate to adjourn a case to await prospective legislation that would alter rights sought to be enforced in the litigation before the court. The reference to McGarry, however, was incidental to, and not the basis for, the exercise of discretion by his Honour. As he was required to do, his Honour considered the particular facts in the case before him, relevant to the exercise of a discretion to alter the date of hearing previously set by the Court, and his Honour was satisfied on those facts that it was appropriate to advance the hearing. 22 It is unnecessary to comment on the views expressed by Finkelstein J on the correctness of decisions to the effect that a declaratory order may be an interlocutory, and not a final, order. It is also unnecessary to examine the correctness of the reasons of the Full Court in the previous appeal in this matter, in so far as they dealt with the declaratory orders made by the learned primary judge. 23 In respect of the costs of the appeal, this was not a case to which an exception to the operation of s 347 of the Workplace Relations Act 1996 (Cth) applied and, therefore, no order for costs may be made. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 20 March 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 297 of 2001 On appeal from a single judge of the Federal Court of Australia BETWEEN: WARRAMUNDA VILLAGE INC Appellant AND: DIANNE PRYDE and BERYL ANDERSON Respondents JUDGES: LEE, FINKELSTEIN and GYLES JJ DATE: 20 MARCH 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT FINKELSTEIN J: 24 This appeal is concerned principally with the meaning of two awards, the Health Services Union of Australia (Victoria – Private Sector) Interim Award 1993 and the Health and Allied Services – Private Sector – Victoria Award 1995. The question in issue is whether the respondents are covered by those awards. The answer will depend upon the construction to be placed upon certain provisions in each award. If the question is answered in the affirmative, as the trial judge found it should be, the consequence is that the appellant, which employed the respondents, has breached each award by failing to pay the respondents the rates of pay prescribed thereunder and is liable to a penalty and other orders under s 178 of the Workplace Relations Act 1996 (Cth). If there is a negative answer to the question, then the orders made below, imposing penalties under s 178(1) and requiring the appellant to pay the amount of underpayments under s 178(6) with interest under s 179A, must be set aside. 25 Before I recite the facts, there are two introductory remarks I wish to make. The first concerns the construction of an industrial award. The rules that a court of construction will apply to determine the meaning that should be given to an award, or to a particular provision of an award, do not differ to any significant extent from the rules that are applied to discover the meaning of any other instrument, be it a statute, a subordinate instrument or a private contract. The task at hand is to discover the intention of the author, although in the case of legislation there is usually reference to the fiction, "the intention of parliament". Very often the legal meaning of an instrument is its grammatical meaning. Indeed "it is not unduly pedantic to begin with the assumption that words mean what they say": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, 304 per Gibbs CJ. If this assumption were to be applied here, the appeal would be dismissed without much ado. 26 The second introductory remark concerns what occurred before the case below came on for final hearing. It will be necessary in a moment to trouble the reader with a short history of the progress of the case. At present it is sufficient to note the following. With the agreement of the parties the trial judge first determined whether the respondents were covered by the awards. Having resolved that issue in their favour, the trial judge made certain declaratory judgments and later dealt with the outstanding issues of penalty and underpayments. In taking this course the trial judge adopted what is now commonplace in civil litigation, namely "splitting" a case between issues of "liability" and "quantum". As the declaratory judgments were adverse to the appellant, it filed notice of appeal. On one view (a view with which I do not agree) a declaratory judgment made before a final hearing is interlocutory in nature. On this view the appellant required leave to appeal. When the appeal came on for hearing the Full Court did not deal with this issue. Nor did it deal with the merits of the appeal. Instead it set aside the notice of appeal on the basis that there were no orders in respect of which an appeal could be brought. The Full Court expressed the view that "the declarations made by the trial judge [did not] declare the rights of the parties". So the Full Court held that "the declarations made [by the trial judge] are not binding declarations of right". This was, at least, an unusual course to adopt. So far as I have been able to discover, this is the only instance where a court has taken the view that a judgment of a superior court of record which is pronounced in open court and later perfected by being passed and entered may be treated as if never made. Whether the Full Court was correct in taking the course it did is an issue that is indirectly raised by this appeal. It is possible to dispose of this appeal without considering the correctness of what occurred. But the matter is of such fundamental importance that I cannot let it pass without comment. 27 The facts of the case are these. The appellant operates a residential aged care hostel. It employed the respondents as personal care workers. From time to time the respondents were required to work successive shifts, the first of which the parties referred to as a "stand up shift" and the second, a "sleepover shift". A stand up shift is usually an afternoon shift beginning at 3.30 pm and ending at 10.00 pm. The worker is on active duty throughout a stand up shift. A sleepover shift is an evening shift which begins at 10.00 pm and ends at 7.30 am the following day. The worker who works a sleepover shift is provided with a flat within the premises of the hostel. When called upon he (or she) is required to render assistance to the care worker who is working a contemporaneous stand up shift. Additionally the worker on the sleepover shift is invariably a supervisor who may be required to provide supervision. In the meantime the worker on the sleepover shift is not on active duty, and may eat, listen to the radio or sleep as he (or she) pleases. 28 This is a sufficient exposition of the facts to place in context the argument about the meaning of the awards. I will now turn to their provisions. The parties are in agreement that in all relevant respects the 1993 award and the 1995 award are in the same terms. Accordingly it will be sufficient to refer to the provisions of only one, and I have selected the 1995 award for this purpose. 29 The 1995 award covers the employees of over 4,500 hospitals, hostels, medical laboratories, diagnostic and pathological clinics, dental clinics, nursing homes, community health care centres, sheltered workshops and like institutions. The employees covered by the award are those employed on a permanent or casual basis, including those employed on a part time basis: see the definition of "employee" in cl 3. Clause 13 defines a full time employee as "one who is employed and who is ready, willing and available to work a full week of 38 hours or an average of 38 hours as per clause 27 of this award". Clause 15 defines a part time employee as one "who is employed and who is ready, willing and available to work on a regular basis any number of hours less than 38 in any one week (or less than 76 hours in a fortnight)". 30 The ordinary rates of pay to which an employee is entitled are set out in cl 21. The rates to be paid to a particular employee will depend upon his (or her) classification, experience, seniority, disability (if any) and so on. Part VI of the award (clauses 27 to 34) makes provision for hours of work, overtime, shift work and weekend work. It is necessary to refer to some of these provisions. Clause 27(a) provides: "The hours for an ordinary week's work shall be 38, or be an average of 38 per week in a fortnight, or in a four week period or, by mutual agreement, in a five week period in the case of an employee working ten hour shifts and shall be worked either: (i) in five days in shifts of not more than eight hours each; or (ii) in a fortnight of 76 hours in 10 shifts of not more than eight hours each; or (iii) in 152 hours per four week period to be worked as nineteen shifts each of eight hours; or (iv) by mutual agreement: (1) in four days in shifts of not more than ten hours each; or (2) in fortnight of 76 hours in eight shifts of not more than ten hours each." Clause 32(a) provides: "All employees required to be 'on call' or who return to duty when off duty shall be paid, in addition to any other amount payable, a sum equal to 2.5 per [sic] of the weekly base rate of pay for the wage skill group 5 as defined in clause 21, per period of twelve hours or part thereof." Clause 33(a) provides: "In addition to any other rates prescribed elsewhere in this Award an employee whose rostered hours of ordinary duty finish between 6.00 p.m. and 8.00 a.m. or commence between 6.00 p.m. and 6.30 a.m. shall be paid an amount equal to 2.5 per cent of the weekly base rate of pay for the Wage/skill group 5 as defined in clause 21 of this award per rostered period of duty." 31 The appellant advances two submissions on what I will call the construction question. First it says that the award does not regulate the wages payable to a personal care worker performing a sleepover shift. There are two reasons for this, so the argument goes. One reason is that an employee on a sleepover shift does not perform "work", at least when the employee is not actively attending to the needs of a patient. This argument proceeds on the assumption that the award only requires the payment of wages to an employee who is "labouring" or "toiling": for this the appellant relies upon the definition of "work" in the Macquarie Dictionary. The other reason depends upon "the regulatory context" in which the award was made. It is said that the history of awards in this sector demonstrate that employees working a sleepover shift were not intended to be covered by the 1995 award, even if the literal language of the award brings them in. The second submission is that if a personal care worker performing a sleepover shift is in fact covered by the award, then the employee should be regarded as "on call" within the meaning of cl 32 and therefore the worker is only entitled to the benefits prescribed by that clause. 32 The arguments by the appellant bring into question the proper construction of the award. Before I dispose of them, there is one issue that I must address, though it is irrelevant to the outcome of the appeal. The respondents describe this appeal as stricto sensu and say of this type of appeal that it can only succeed "if the judgment under appeal is in error". This submission is erroneous in two respects, as I will briefly demonstrate. 33 Speaking generally, an appeal from a superior court will be by way of rehearing or will be stricto sensu. When the appeal is a rehearing there is a trial over again on the evidence used in the court below (usually with special power to receive further evidence) and the appeal court must decide the appeal on the law as it then exists. On an appeal strictly so called the only judgment that can be given is that which ought to have been given at the original hearing. 34 In Australia an appeal to the Full Courts or Courts of Appeal of the Supreme Courts of the States is by way of rehearing. So also is an appeal to the Court of Appeal in England. The right of appeal in the Federal Court is conferred by s 24(1) of the Federal Court of Australia Act 1976 (Cth) which relevantly provides that "the Court has jurisdiction to hear and determine: (a) appeals from judgments of the Court constituted by a single Judge." There was a time when such an appeal was thought to be a strict appeal. Indeed there are a number of decisions of the Full Court to that effect. The cases include Petreski v Cargill (1987) 18 FCR 68 and Duralla Pty Ltd v Plant (1984) 2 FCR 342. The rulings in these cases were doubtful, and they were swept aside by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 75 ALJR 679 where it was made clear that an appeal in the Federal Court is a rehearing. See also Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833. This is the first error in the respondents' submission. 35 The second error is in the assumption that underlies the submission. The assumption is that in an appeal by way of rehearing, an appellant may succeed without showing error on the part of the trial judge. The mere identification of the underlying assumption should be sufficient to dispose of it. If further is required it is to be found in what was said by Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 518-519: "According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal." 36 The appellant's first submission on the construction question also suffers from error. As I have mentioned, the appellant's case is that a personal care worker on a sleepover shift does not perform any "work" unless the worker is attending to the needs of a patient. One answer to this submission is that the assumption that an employee is only entitled to his pay if he performs "work" according to the meaning given to that word by the appellant is a false assumption. Clauses 13 and 15, which define what is meant by full time employment and part time employment, clearly show that two conditions must be satisfied before an employee is entitled to his pay, first the employee must be an employee, presumably under a contract of employment, and second, the employee must be "ready, willing and available to work". A worker who is on a sleepover shift satisfies both conditions. Put another way, this award does not require the worker actually to perform any work to be entitled to his pay. Provided the worker is available to carry out his duties, he has earned his pay. 37 The other answer is that the words "work" or "worked" when used in provisions such as cl 13 and cl 15 do not bear the meaning assigned to them by the appellant. The authorities show that when such words are used in instruments of the type presently under consideration, what is referred to is an employee who is under the instruction of an employer: the time under instruction is time worked. In the Hospital Employees' Industrial Union of Workers v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 the question was whether a nurse on night duty who was permitted to sleep nights and be on call was entitled to wages for "time worked in excess of the ordinary time" within the meaning of the Nursing Aides and Nursing Assistants' (Private) Award. The Western Australian Industrial Appeal Court (Burt CJ, Wickham and Wallace JJ), held that the nurse was entitled to her pay. Burt CJ said (at 456): "In my opinion, once [the magistrate] held that the worker was on the premises pursuant to instructions received from the employer 'to report any emergencies which arose relative to the inmates of the home' it follows that the whole of the time during which she was on the premises pursuant to those instructions was 'time worked' within the meaning of the award. It may be that an emergency seldom arose and it may be that an emergency never arose but that, I think, would make no difference. The worker was not on call in the sense that she could be called upon by the employer to work. She was, I think, under a continual duty to act if called by a patient and she falls into the category of persons who serve while waiting." See also Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 where the House of Lords held that a fireman who was paid an annual retaining fee in consideration of his agreement to act as a fireman when called on to do so was not a "whole-time employee" within the meaning of the Local Government Superannuation Regulations 1974 (UK) because while he was "on call" he was free to do as he pleased, unless and until a fire occurred. According to Lord Templeman, who delivered the opinion of the House, the fireman was only on duty when a fire occurred and he was called to the station house. 38 To consider the "regulatory context" argument, it is necessary first to provide that context. Initially, permanent care workers, such as the respondents, were covered by State awards. The last of those awards was the Health and Allied Services Award 1991. One classification of employee covered by that award was "personal care worker grade one". Before the 1991 State award was made, there was in existence a common practice that personal care workers who worked a sleepover shift would be paid $40.00 for each sleepover period. If the sleepover shift worker was required to attend patients for more than one hour of a sleepover shift he would be paid at the overtime rate for those hours of attendance. This practice was formalised in 1991 when the Industrial Relations Commission of Victoria registered the Hostel Personal Care Workers Agreement. The purpose of that agreement was "to regulate the terms and conditions of employment with respect to Personal Care Workers employed in Aged Care Hostels, employed under the award of the Health and Allied Services Conciliation and Arbitration Board". Certain provisions of the 1991 State award were declared to be replaced, amended or rendered inoperative by the 1991 agreement. The agreement set rates of pay for personal care workers. In addition, provision was made for a "sleepover allowance". That allowance adopted the previous practice. The trial judge said that the protection given by the 1991 State award was "dismantled" by the Industrial Relations Act 1992 (Vic) and this led to the making of the first of the federal awards, namely the 1993 award. The 1993 award was a rather simple award. All it did was incorporate by reference a number of the "dismantled" State awards, including the 1991 State award, with certain minor amendments. The 1995 award is a more substantial document, at least in size. It does not merely refer to and adopt the provisions of the previously applicable State awards. The 1995 award substantially reproduces the relevant State awards. It is for this reason that the parties accept that the 1993 award is in the same terms as the 1995 award. It is in the same terms, but by indirect means. 39 It is to be observed that neither the 1993 award nor the 1995 award make express provision for sleepover shifts. Each award does, however, cater for shift work. Clause 4(a) of the 1991 State award, and its counterpart cl 33 of the 1995 award, identifies a number of different shifts in respect of which a shift allowance is payable. The shifts that are mentioned in the 1991 State award are a morning shift, an afternoon shift, a night shift and a permanent night shift. It may also be noticed that there is no reference to a stand up shift. 40 It is said that both the 1993 award and the 1995 award should be construed so that they do not apply to workers who work a sleepover shift because this shift was regulated by the Hostel Personal Care Workers Agreement and therefore the awards need not be concerned with those workers. I see no merit in this argument. There is no rule of construction of which I am aware that would produce the result contended for, short of it being shown that there was error in the drafting of the federal awards. The fact that those awards do not make express reference to a sleepover shift, and do not provide for a particular allowance to be paid to a person who works a sleepover shift, does not carry the matter any further. The shifts that are mentioned in the 1991 State award are described by reference to the hours of the day that must be worked. That no shift is described by reference to the nature of the work that is to be performed during the shift, is not a reason to exclude shifts that are given a particular description by the parties, or by usage, from the operation of the awards, particularly when the express terms of the awards apply to the workers concerned. 41 The appellant also says, and I quote from its submissions, that "the [1991] State Award must be taken to have been drafted in the light of the industry practice and the provisions of the Registered Agreement. This practice and these provisions were 'a state of affairs' which the 1991 State Award assumed existed." Even if it is to be assumed that those who drew the 1993 award were aware of the "industry practice and the provisions of the Registered Agreement", it does not follow that the 1993 award intended to preserve that practice and those provisions. Another possibility is equally open. That possibility is that the draftsman of the 1993 award was not attracted by the industry practice, or the provisions of the registered agreement, and intended the 1993 award to mean what it says. In any event, if it is to be assumed that the draftsman of the 1993 award was aware of the industry practice and the registered agreement, he must also be taken to be aware of the fact, because it is a fact, that the 1991 State award applied to workers on a sleepover shift save to the extent of changes made by the registered agreement, and that agreement was terminated in 1992 on the withdrawal of the unions. 42 I can see no possible basis for finding that the 1993 award or, for that matter, the 1995 award, intended to preserve the provisions of an agreement which was no longer in operation, or "an industry practice" which, as a result, was uncertain. No such intention can be imputed to the author in the absence of some indication in the 1993 award or the 1995 award to this effect. Here the appellant is asking us to speculate about the intention of the draftsman. Questions of construction cannot be resolved by these means. 43 The rejection of these submissions on construction also provides the answer to the appellant's argument based on cl 32. Once it is accepted that a personal care worker who is on a sleepover shift is relevantly working, the worker cannot at the same time be "on call" for the purposes of cl 32. An employee who is required to be "on call" is an employee who must attend at work when called to do so. Until the employee is called to attend work, he is not working. A worker on a sleepover shift, by contrast, is always at work. A worker cannot be "on call" and at work at the same time. 44 This brings me to the final ground of the appeal. To appreciate how it arises it is necessary to explain the course of the proceeding below. The respondents to this appeal, as applicants, commenced the proceeding by filing an application and a statement of claim. The principal relief claimed in the application was: (1) The imposition of penalties for breach of the two awards; (2) The recovery of underpayments under s 178(6); and (3) Interest under s 179A. The statement of claim alleged that the appellant (the respondent below) was bound by the 1993 award and the 1995 award in respect of the employment of the respondents, and that in breach of those awards it failed to pay the respondents the amount of wages they were entitled to receive. The quantum of the underpayments was pleaded and particularised in considerable detail. The appellant filed a defence. Although it is a largely uninformative document, as defences in this type of case tend to be, it is apparent that the claim was to be resisted on two main grounds. The first was that the respondents were not entitled to the benefit of the awards when they worked a sleepover shift. The appellant's case was that the entitlements for a sleepover shift were, in each case, governed by an oral contract which it called "the sleepover agreement" and that each respondent had been paid her full entitlements under that agreement. Accordingly, the appellant pleaded that both the 1993 award and the 1995 award "made no provision regulating arrangements between an employer and its employees for a sleepover role". The second ground of defence was that "the sleepover role performed by [each respondent] was performed and paid as 'on-call' under [the relevant] Award". 45 So the battlelines were clearly drawn. The claim was to be resolved below, as here, on the proper construction of the two awards: Did they or did they not apply to a worker who worked a sleepover shift? The parties reached agreement on how the case was to be conducted. The trial judge referred to their agreement in his reasons. "[First] the Court should consider the question of liability only". I take the trial judge to mean that in the first place he would hear submissions on, and then resolve the dispute about, the construction of the two awards and their application to sleepover shifts. The trial judge was to "leave any underpayments issue to the parties to sort out". It is apparent that the parties had informed the trial judge that it would not be necessary for him to determine the precise amount of the wages that were payable to the respondents if it turned out that their construction of the awards was to be preferred. Finally, "a hearing concerning penalty [would] be programmed at a later stage". This statement needs no further elaboration, save to indicate that when the parties requested the trial judge to defer any hearing on "penalty", they had in mind not just the penalty, but also the recovery of underpayments and interest. 46 There was a hearing on "liability" during four days in July 2000 and on a further day in August 2000. The trial judge handed down his reasons for judgment on "liability" in open court on 15 September 2000. Immediately after giving his reasons, in which he found for the respondents (applicants at first instance), the trial judge informed the parties that he intended to make certain declarations and then adjourn the matter to a directions hearing. No objection was taken to this course. The trial judge then pronounced three declaratory judgments. I will recite the first and second: "1. It is declared that the respondent committed a breach or non-observance of the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 ("the 1993 Award") by failing to pay the applicants whilst engaged on sleepover duties in accordance with the terms of the Health and Allied Services Award of the Industrial Relations Commission of Victoria ("the State Award") in respect of: - ordinary time rates of pay - week day ordinary hours - week day overtime - weekend ordinary hours - weekend overtime - public holidays, and - failure to pay the correct wages arrears at times required by the State Award. 2. It is declared that the respondent has committed a breach or non-observance of the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 ("the 1995 Award") by failing to pay the applicants whilst engaged on sleepover duties in accordance with the 1995 Award provisions in respect of: - ordinary time rates of pay - week day ordinary hours - week day overtime - weekend ordinary hours - weekend overtime - public holidays, and - failure to pay the correct wages arrears at times required by the 1995 Award." The declaratory judgments and other orders were drawn up and passed (settled) by the registrar and entered. The orders were then sealed with the seal of the court. At that point, so far as the court was concerned, nothing further was required to be done to bring into existence an order that was binding upon the parties: Holtby v Hodgson (1889) 24 QBD 103, 107. 47 On 6 October 2000 the appellant filed notice of an appeal against the declaratory judgments and other orders. The appeal was listed for hearing on 8 February 2001. By that time the appellant appreciated that it may be necessary to obtain leave to appeal. When the appeal was called on counsel informed the Full Court that the appellant did not need leave to bring its appeal, but that if leave was required the appellant sought an order to that effect. 48 The Full Court did not hear argument on this question, or on the merits of the appeal. The Full Court was of opinion, as it made clear in reasons for judgment delivered the following day, that there was no judgment against which an appeal could be brought. Accordingly, the Full Court disposed of the appeal by making an order that "the notice of appeal filed on 6 October 2000 be set aside". The Full Court did not discharge, vary, correct or set aside the declaratory judgments that had been passed and entered. I will come back to consider the effect of what occurred after I have completed my summary of the course of the proceeding. 49 Before the Full Court disposed of the appeal, the trial judge had fixed 3 May 2001 as the day upon which he would hear argument on all outstanding issues, so that the case could be completed. However, in view of the approach taken by the Full Court, the trial judge listed the case for mention on 23 February 2001 to allow the parties to raise any matter arising from the Full Court's decision. 50 Counsel for the parties discussed the matter before the mention day. During those discussions it became clear that the appellant intended to make application to the Australian Industrial Relations Commission for an order that the awards be amended retrospectively to overcome the construction that was placed on them by the trial judge. The Commission has the power to vary an award retrospectively, but only where "it is necessary to do so in the interests of justice and fair play" (Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1923) 18 CAR 852, 854, per Powers J) or where "exceptional and strong reasons exist" (Federated Gas Employees Industrial Union (1942) 48 CAR 85, 137, per Piper J). The appellant was obviously of the opinion that a retrospective variation would deprive the court of jurisdiction to resolve the case in the respondents' favour. It is convenient to assume, without deciding, that this belief was well founded. 51 The trial judge was informed of the proposed application by counsel for the respondents. She described the proposed application, perhaps rather colourfully, as "an abuse of process". More importantly, counsel was alive to the potential problem that confronted her clients. She said to the trial judge: "We would object to any attempts by the respondent to reopen the evidence in respect of those matters that have been the subject of a judgment by the court, and we are mindful that we will need and will produce a document which will enable orders to be made specifying the particular clauses, the hours worked and the amounts of underpayment resulting." She then asked the trial judge to bring forward the trial date. The appellant objected to this. Counsel for the appellant said: "[I]n the light of the full bench's findings we would seek to take the opportunity to make application to the commission to consider whether or not this award should be varied … In my respectful submission the thrust of what the Full Court decided is that your Honour has not at this juncture declared any substantive rights with respect to this particular issue." Counsel emphasised that he was not asking for an adjournment of the hearing date. He told the trial judge: "This is not a case, your Honour, where we're seeking to put off the normal train of things in order to go to the commission. Rather, it's the converse. We're seeking simply to use the time that your Honour had allocated to go the commission. The commission may not want to hear us." 52 The appellant did not put forward any material in support of its request that the trial date should not be brought forward, other than to indicate that it intended to make application to the Commission for a retrospective amendment. The appellant did not suggest that its foreshadowed application had any prospects of success. So the trial judge was in the position where he could do no more than surmise on the fate of the proposed application. For all he knew it might have been a hopeless application. On the other hand, if it had some prospect of success, the appellant did not take the trouble to inform the trial judge, or explain why this was so. Nor did it ask for time to put forward any material to advance its position. 53 After hearing counsel, the trial judge said that the matter was covered by McGarry v Boonah Clothing Pty Ltd (1993) 49 IR 66, a statement that may not be entirely accurate. Accordingly he acceded to the respondents' request and set the case down for an early hearing. He chose a date that was convenient both to the parties and their counsel. 54 It is now possible to explain the final ground of appeal. The appellant says that "the trial judge was in error in not allowing the appellant to pursue an award variation application prior to determining the [proceeding]." Neither in its notice of appeal, nor in its written outline of argument, did the appellant identify the alleged error in the decision of the trial judge. I suspect that the appellant had in mind a challenge to the decision as an improper exercise of a discretionary power. During the course of the appeal, and prompted by comments from the bench, the alleged error was identified as being the failure by the trial judge to give due consideration to the submission (by weighing the relevant factors for and against the order sought) and instead erroneously applying a rule of general application (that a case should not be deferred while an attempt is made to vary the award which gives rise to the case). 55 There are two reasons, and perhaps more, for rejecting the appellant's complaint. In the first place I will consider the position as if the trial judge was involved in the exercise of a discretionary power in the usual way. If a party wishes to avoid a particular trial date that is otherwise convenient to the court, then the party must put forward some reason for that course. A particular trial date can be unsuitable for any number of reasons. A judge will often attempt to avoid inconvenience to a party, to potential witnesses, or to counsel, and set a case down for hearing at a time that is convenient to all, unless that course is not practicable. Here we have an issue of a different kind. I will put to one side for the moment the question whether the decision to make an "award varying application" can amount to a good reason to put off a trial and assume, in the appellant's favour, that it can be. Even in that circumstance it is not sufficient for a party wishing to resist the fixing of a particular trial date merely to assert his intention to make such an application. Surely it must be necessary for the party to place before the court some material to show the application might succeed. It could hardly be supposed that a judge would defer a trial if the application to vary the ward was bound to fail. In that case there would be no point to deferring the trial. It would just be a waste of time. Thus, it was for the appellant to persuade the trial judge that something was to be gained by putting off the hearing. As the appellant did not bother to undertake that task, it cannot now complain about the course the judge took. I do not mean to imply that there are not in existence facts from which it could be inferred that an application to the Commission would succeed. I do not know what the true position is. All I can say is that if the appellant had a good case for a retrospective amendment, it did not tell the judge. 56 The second reason why the trial judge was correct in rejecting the submission not to expedite the hearing is the timing of the submission. The proceeding was begun in November 1999, and the hearing on liability took place in July and August 2000. It cannot be that a party can wait and see whether the outcome of a case is favourable to him before raising the possibility that the award upon which an unfavourable result was founded could be varied with retrospective effect. The appellant was aware that relief from the Commission may have been available and should have acted expeditiously. Its failure to do so is fatal. 57 There may be another reason for rejecting the appellant's complaint. I mentioned earlier that in arriving at his decision the trial judge followed the decision of Gray J in McGarry v Boonah Clothing Pty Ltd. In that case Gray J held that it was not appropriate to adjourn a case to await the result of a proposal to amend legislation in a way that would affect the rights of the parties. Gray J stated, and applied the principle, that it is the duty of a court to adjudicate a case on the law as it is, and that it would be wrong to deny a party the right to have his case determined according to the present state of things. 58 There is some controversy about the principle applied by Gray J. For example, in Re Minister for Minerals and Energy; ex parte Wingate Holdings Pty Ltd [1987] WAR 190, a majority of the Full Court of the Supreme Court of Western Australia (Wallace and Olney JJ, Burt CJ dissenting) granted an adjournment of a trial on the basis that legislation was likely to be enacted which would render moot the point at issue in the trial. In Sparks v Harland [1997] 1 WLR 143, 147 Sedley J said: "[T]here is in my judgment no rule that impending legislative change is never a material consideration in the exercise of the court's powers and discretions. Everything, it seems to me, turns upon the subject matter and the relevance of the pending legislation or possibility of change to the issues which the court has before it." In Humphris v Harbour Radio Pty Ltd (1999) 32 ACSR 537 Byrne J deferred making a ruling on a strike out application pending the passage of legislation (the Federal Courts (State Jurisdiction) Act) to remedy the effect of the High Court's decision in Re Wakim; ex parte McNally (1999) 198 CLR 511. 59 On the other hand, there is an impressive array of authority for the proposition that found favour with Gray J. The cases include R v Whiteway; ex parte Stephenson [1961] VR 168, 171 per Dean J; Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213, 215-6 per Upjohn J; Attorney-General (Northern Territory) v Minister for Aboriginal Affairs (1987) 73 ALR 33, 50-51 per Lockhart and Gummow JJ. Importantly, there are two recent appellate decisions that provide support for his conclusion. The first is Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527. That was an appeal from a decision granting an adjournment of a trial date to permit the plaintiff in an industrial accident case to take advantage of certain proposed legislative changes announced by the Minister for Industrial Relations. The New South Wales Court of Appeal allowed an appeal from this discretionary decision on the basis that the discretion had miscarried. Mason P (with whom Shellar and Beazley JA agreed), after examining most of the authorities in point, said that courts are charged with the responsibility of administering justice according to the law as it is, and that it would therefore be wrong to adjourn a case to take advantage of a change in the law. The second decision is of the Full Federal Court in Attorney-General v Foster (1999) 84 FCR 582. In that case von Doussa, O'Loughlin and Mansfield JJ followed Meggitt Overseas Ltd. 60 It is true that these cases, if they apply, are only relevant by analogy. They hold that a case should not be adjourned to enable a party to take advantage of a proposed amendment of enacted law. Here we are not concerned with a proposed change to a statute, but with an anticipated change to an industrial award. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230, 253 Starke J said: "Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate about alterations in the law that may be made in the future." The underlying principle is that the court must determine a case in accordance with the present state of the law. But even this principle is subject to exceptions. In Meggitt Overseas Ltd at 534-535, Mason P noted two exceptions. The first is where an adjournment is sought to enable a proposition established in a decided case to be tested in an appeal. The second is where the court is dealing with an application for a discretionary remedy where relief may be denied on the ground of futility. In such a case Mason P said that it may be proper to have regard to imminent legislative changes. 61 If the principle applies not only to statute law but to whatever law is recognised as governing the rights of the parties (a proposition that may be doubted), then an application for a retrospective variation of an award, provided it has some prospects of success, should be regarded as an exception to the rule. It must be remembered that it is only in an exceptional case that the power to vary an award retrospectively can be exercised. It will usually be confined to cases such as fraud, mistake or some other type of overreaching. In the context of consent awards, the problem will usually arise where the award contains a provision that does not express the true intention of the consenting parties. So, if it appears that the Commission may rectify an award, it would be proper to afford the parties, or any one of the parties, the opportunity to seek a variation before disposing of a claim under the award. This is particularly so where, having regard to the circumstances of the case, there is relative certainty that the award will be rectified. One reason for this is that it would be unjust if the court were to determine the rights of the parties based upon an instrument which it knows, or suspects, does not reflect their actual intention, or was otherwise inappropriately procured. 62 There is one other point I should mention in this context lest it be thought I have overlooked it. The authorities I have thus far mentioned were concerned to ensure that a party would have his case decided on the law as it stood on the date which happened to be fixed for trial. But we are concerned with a different situation. As counsel for the appellant made clear to the trial judge, the appellant was not seeking to adjourn the trial to take advantage of a possible change to the award. The appellant was merely resisting an application to bring forward the trial date. Do these principles apply in such a case? According to Jupp v Computer Power Group Ltd (1994) 1 IRCR 86 they do. There the applicant sought an early trial date to avoid the consequences of an apprehended change to the Industrial Relations Act 1988. Gray J did not accede to the request. He distinguished some of the earlier cases on the basis that they did not involve any reorganisation of the business of the court to suit a party. He found that the cases did not draw a distinction between applications by respondents and applications by applicants for adjournments. He said that "[i]n either case, the courts have refused to adjourn cases to enable either party to take advantage of proposed changes in the law". He went on: "The matter should be decided, in my view, by the application of the general principle that courts apply the law as it is. The application of that principle dictates that no special step be taken to avoid the proposed amendments. The Court should not bring a case forward to assist an applicant any more than it would delay it to assist a respondent." In this passage Gray J is making two points, so it seems to me. The first is that the overriding principle is that a party is entitled to have his trial on the law as it stands on the date which happens to be fixed for the trial: see also R v Walsall Justices; Ex parte W [1990] 1 QB 253. The second point is that to maintain its neutral role the court should not give assistance to a party who seeks to obtain extraneous advantage in litigation. 63 In my opinion, however, the position that presented itself in Jupp should not have been treated in the same way as the earlier cases. The underlying principle established by the authorities is somewhat different from that stated by Gray J. In Re Minister for Minerals and Energy at 194 Burt CJ, who would have refused the adjournment sought, explained the principle in the following language: "As a matter of principle a submission made by Wingate in its opposition to the adjournment should be accepted. The courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to the law will be changed." This passage was cited with approval by Mason P in Meggitt Overseas Ltd. In the passage it is apparent that Burt CJ is expressing the view that the principle that a party is entitled to "justice according the law as it is" refers to the law which is invoked when the writ is issued, and not to the law as it may be at the date of the hearing. It is the law as it stands at the time of commencement of an action that a party has a reasonable expectation will be applied to his case. If it were to the law at the time of trial, there would be the possibility of inconsistent findings in different cases, resulting solely from the state of a judge's list from time to time. To have cases decided differently on that basis would bring the law into disrepute. It follows that a court will not fall into error for bringing a case on for hearing earlier than the appointed day, provided it can be heard without injustice to any party to the proceeding, or to parties in other litigation that may also have a just claim on the judge's time. 64 This brings me to the final point in this appeal. Here I return to the fact that there is still in existence a declaratory judgment of the court which the Full Court did not set aside or alter. The question in issue is whether the continued existence of the declaratory judgment is relevant when considering whether the trial judge was in error in deciding to set down for hearing the "quantum" aspects of the proceeding despite the appellant's objection. 65 Let me begin the discussion by briefly setting out what I regard to be uncontroversial principles. In a general sense, a declaratory judgment is a formal statement by the court pronouncing upon the existence or non-existence of a state of affairs: E Borchard Declaratory Judgments 2nd ed, 1941, ch 1; Zamir and Woolf The Declaratory Judgment 2nd ed, 1993, at p. 1. While such a judgment does not require a party to do or refrain from doing any act or thing, it is nevertheless an order of the court. And, being an order of the court, a declaratory judgment, whether it be a positive declaration or a negative declaration, will create an estoppel per rem judicatam, that is, it will prevent the parties in any subsequent litigation from disputing or questioning the declaration on the merits. A declaration will also give rise to an issue estoppel and so be conclusive proof of the facts and the law directly or necessarily in issue in the case and actually decided by the court as appears from the judgment as delivered: Marra Developments Ltd v B W Rofe Pty Ltd [1977] 2 NSWLR 616, 626; Coles v Wood [1981] 1 NSWLR 723, 727. 66 I need to qualify the generality of the foregoing propositions. Before any order of a court, including a declaratory judgment, can operate in law either as a res judicata or an issue estoppel, certain well known requirements must be satisfied. One of those requirements is that the judgment must be final. This does not mean that the judgment must be final as distinct from interlocutory, a distinction to which I will return shortly. The requirement is that the judgment should be "final and conclusive on the merits": Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] AC 853, 935. So, in a case that involves a number of specific issues and one of those issues is tried before the others, the judgment on that issue, though an interlocutory judgment, will result in "the primary judge's hand [being] tied in respect of all matters of fact and law involved in that determination": Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 360, citing Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 642 where Diplock LJ said: "Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence." 67 The requirement of finality makes it necessary to determine the status of a declaratory judgment given before the final disposition of a case, for example when there is a "split trial" and questions of liability are tried before any issue as to damages. There are a number of authorities which have held that a declaration granted at the conclusion of a trial on liability, is an interlocutory order: see eg Australian Builders' Labourers' Federated Union of Workers – Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452, 454; Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239, 242; Caboche v Ramsay (1993) 119 ALR 215, 226; NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584, 593-594; Fraser v NRMA Holdings Limited (1995) 55 FCR 452, 457. (In none of these cases was it suggested that a declaration should not have been granted at the conclusion of the hearing. When leave to appeal was given, on the appeal the dispute was considered on the substantive merits.) 68 In Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 814, after a trial in a copyright case limited to issues of liability, I granted certain declarations to the effect that there was copyright in certain telephone directories, that the plaintiff owned that copyright, and that its copyright had been infringed by the publication by the respondent of certain CD-rom products. The respondent asked for leave to appeal, in case the declarations were interlocutory. I said that it was my intention that they should finally dispose of the issues to which they relate. I went on to indicate my tentative opinion that the declarations were not interlocutory, so leave to appeal was not required, but in case they were, leave was granted. Having given the matter further consideration, I am more firmly of the view that such declarations are final. These are my reasons. An order of a court is either final or interlocutory: Standard Discount Co v Otard de la Grange (1877) 3 CPD 67, 69 per Bramwell LJ. Thus if an order is not interlocutory it must be final and, conversely, if it is final it cannot be interlocutory. According to existing law the only declaration that may be granted is a final and conclusive declaration: Inland Revenue Commissioners v Rossminster Limited [1980] AC 952, 1014 per Lord Diplock, 1027 per Lord Scarman; Clarke v Chadburn [1985] 1 WLR 78, 81 per Megarry VC. The reason for this is that a declaration declares the rights of parties and it would be illogical for a court to declare that a person has certain rights on one day and different rights on the next. Put another way, an interlocutory declaration is an inherently contradictory notion: International General Electric Company of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784. Accordingly, a declaration must produce a state of finality in relation to a particular issue, whether or not there are other issues in the case that still require resolution by a final order. 69 For all this, I must concede that I feel myself overwhelmed by the weight of the many Full Court decisions that are to the contrary effect. In addition to the cases that I have already mentioned, more keep piling up. I have discovered another decision of the Full Court holding that a declaration made at the end of the first part of a "split case" is interlocutory. The case is Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442, which was handed down only four months ago. There is no point in criticising those cases on the basis that they do not mention the contradiction I see as inherent in a finding that a declaratory judgment is interlocutory. The position is that the Full Court has laid down the law and I am bound to follow it, right or wrong. 70 In any event, there may be a middle ground. The answer may be that a judgment may be interlocutory for some purposes and final for others. Cases such as Carl Zeiss Stiftung v Rayner & Keeler Ltd and Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 have held that an issue may be finally determined in what are interlocutory proceedings so that an issue estoppel will arise. According to these cases the question to be asked is whether in the circumstances of a particular case it is reasonable to regard the earlier decision as a final determination of the issue that one of the parties wishes to raise again: Makhoul v Barnes (1995) 60 FCR 572. See also Australian Telecommunications Corporation v Barnes (1995) 125 FLR 335 where the Queensland Court of Appeal held that a declaratory judgment made after a hearing on liability finally determined some of the issues in the action but was not a final judgment for the purposes of the appeal provisions. While this approach is certainly a satisfactory method of determining whether a decision is final for the purposes of res judicata or issue estoppel (a point which seems to me to raise somewhat different issues), I am not persuaded that it can be said that a declaration is interlocutory for any purpose. I repeat that if it be correct that a declaration is necessarily a final order, I cannot see on what basis it can be treated as interlocutory for some purposes. I favour the view that once an order has been characterised as either a final order or an interlocutory order, it will retain that character for all purposes. Put another way, I do not accept the notion that is inherent in the proposition that a declaration may be interlocutory, namely that it can begin life as an interlocutory order and later transform itself into a final order. An order of the court is not like a caterpillar which, through a process of metamorphosis, becomes a butterfly. 71 The next proposition, which is trite law, is that no judgment or order of a superior court is a nullity and therefore of no effect. I include in this rule an order of a federal court or a State court exercising federal jurisdiction made without constitutional authority. Authority for the proposition that an order of a superior court is valid unless and until set aside or altered, can be traced back to the seventeenth century when Peacock v Bell and Kendall (1667) 1 Wms. Saun 73; 85 ER 84 was decided. It is supported by many cases including, in England, Scott v Bennett (1871) LR 5 HL 234, Eastern Trust Co v McKenzie, Mann & Co Ltd [1915] AC 750, Hadkinson v Hadkinson [1952] P 285 and in Australia by decisions of the High Court including Cameron v Cole (1944) 68 CLR 571, Posner v Collector for Interstate Destitute Persons (Vic) (1946)74 CLR 461 and Ousley v R (1997) 192 CLR 69. As regards decisions made without constitutional authority see Residual Assco Group Ltd v Spalvins (2000) 74 ALJR 1013; Re Macks; ex parte Saint (2000) 75 ALJR 203. The principle is conveniently summarised by Lord Diplock in Isaacs v Robertson [1985] 1 AC 97 in delivering the opinion of the Privy Council when determining an appeal in relation to contempt of an order for an injunction made contrary to the rules of the court. Lord Diplock said (at 103): "The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that Court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies". 72 Is it possible to reconcile those principles with the judgment of the Full Court? How does the decision of the Full Court bear upon the decision of the trial judge? 73 Rather than attempt a summary of what led the Full Court to reach the conclusion that there were no declarations of right against which an appeal could be brought, it is preferable to set out certain key passages in its reasons for judgment. There are two passages which explain the rationale for its finding. The first passage reads: "In the present case, the trial judge did not proceed by making an order for the decision of any question separately from any other question, pursuant to O 29 r 2. The parties did not invite his Honour to take that course and he did not take it of his own motion. Instead, he chose to attempt to express his conclusions about certain issues in the form of the declarations that appear in his order of 15 September 2000. We do not think that this was an appropriate use of the power to make binding declarations of right. The declarations do no more than set out in summary form conclusions that his Honour had reached in his reasons for judgment. They do not purport to declare the rights of the parties in any respect. Nor do they purport to declare the meaning of any term of an award upon the proper construction of that term." 74 This passage invites the following comments. First, it is not clear why the Full Court was of opinion that when the trial judge handed down his findings on "liability", it was not appropriate to grant declaratory relief. If the reason is that the respondents did not ask the trial judge to grant any declaratory judgment, then one answer is that no objection was taken when the judge announced his intention to do so. Any formal deficiency in what occurred was therefore waived. If the Full Court is to be understood as saying that it is never permissible for a court to grant relief, except in accordance with what is sought in the applicant's prayer for relief, then again that is a procedural deficiency that can be rectified by amendment or waived by the respondent. In any event (and this is an answer to both points) it is always open to the court to award a declaration though not specifically claimed, if that is what it believes to be the correct thing to do: Loudon v Ryder (No 2) [1953] 1 Ch 423, 429 per Harman J; Harrison-Broadley v Smith [1964] 1 WLR 456; Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313. It is unlikely that the Full Court was saying that in hearings alleging a contravention of the Workplace Relations Act, it is never appropriate to grant a declaration at the conclusion of a hearing on "liability" when issues of "quantum" are still to be determined. That is becoming a common practice, as mentioned by Mansfield J in Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2001] FCA 975, and I do not believe that the Full Court was intending to rule this practice to be in error, particularly without making reference to the cases that would thereby be overruled. More importantly, each of the matters to which I have referred do not bear upon the validity of the declaratory judgment, but only raise questions of discretion. If the Full Court was of opinion that the trial judge's discretion miscarried, that would be a reason to allow an appeal against his judgment. It does not provide a foundation to hold that the judgment can be ignored. 75 Second, it may be accepted, as the Full Court said, that the declarations do no more than set out in summary form the conclusion that the trial judge had reached in his reasons for judgment. But that says nothing about the validity of the declarations. There are numerous examples of declarations which, in a sentence or two, do no more than summarise particular findings of fact or law made by the trial judge. 76 Third, the statement that the declarations "do not purport to declare the rights of the parties" is plainly erroneous. Here I think there is some misconception about the nature of the "rights" that are the proper subject of declaratory relief. I would accept as a correct statement of principle that which is given by Zamir and Woolf in their textbook, The Declaratory Judgment at 53: "It [the word right] certainly includes equitable as well as legal rights. It also covers the case where the plaintiff has no cause of action. In practice, the court will grant a declaration which is no more than a statement of fact, or a statement of fact and law, provided it will serve to further the applicant's legal interests; that is assist in establishing his 'rights', using that term in a very broad sense. The difficulty will, therefore, only arise if the parties are seeking to have the court resolve a dispute which involves no real issue." See also Sankey v Whitlam (1978) 142 CLR 1, 23 ("The word 'right', in the expression 'declarations of right' in s 75 of the Supreme Court Act, 1970 (NSW) and O 26, r 19 is used in a sense that is wide and loose."); Walker v Corporate Affairs Commission (1988) 13 NSWLR 550, 556 ("In New South Wales 'right' in the phrase 'declaration of right' is a very wide word and covers all justiciable legal relationships whether or not there exists a right in the sense of something which could be vindicated by pursuing a cause of action at common law"). In other words, a court will be declaring the rights of parties when they bring forward for resolution a justiciable controversy, but not when the court is being asked to give a purely advisory opinion involving no present dispute. 77 That there was a dispute between the appellant and the respondents is not in doubt. The dispute had two aspects. The first was whether or not the respondents were covered by the two awards. The second, which was contingent upon there being an affirmative answer to the first question, was the extent to which the respondents were underpaid. The declaratory judgments resolved the first question in the respondents' favour. The Full Court said that all the trial judge did "was to decide that the awards apply to sleepover shifts". That was all that was necessary for the trial judge to do to answer the first question. As events turned out, the parties were able to agree the answer to the second question. 78 I accept, as the Full Court noted, that the declaratory judgments did not "purport to declare the meaning of any term of [the] award[s], upon the proper construction of that term". But, one may ask: "What flows from this?" In my view, nothing at all. Parties often find it both convenient and useful to obtain a declaration as to the subsistence of a contract, the meaning of a contract, the validity of a contract, whether a contract has been terminated, or whether a contract has been breached. Declarations can be just as useful in the context of industrial awards. That is to say, just as there will be good reason to declare that a party to a contract has contravened its terms, so a declaration may be granted in an appropriate case to the effect that a party is bound by an industrial award and has contravened its provisions. Moreover, such a declaration will plainly be a declaration of right provided the declaration is made to resolve a controversy. That the declaration does not declare which particular provision of an award has been breached, and also leaves for later determination the financial consequences of that breach is not to the point, and certainly does not affect the validity of the declaration. 79 This brings me to the second passage in the Full Court's reasons for decision. After repeating that the declarations made by the trial judge did not declare the rights of the parties (a proposition which does not accord with the authorities), the Full Court said: "They [the declarations] did not attempt to declare the proper construction of any term of an award. They did not declare that, on any specified day, any breach of any term of an award had occurred. Rather, the first two declarations reflect the view that his Honour had expressed in his reasons for judgment that, in general terms, each award was applicable to a sleepover shift." The Full Court then referred to the "difficulty of the course undertaken by his Honour of attempting to deal with part of the case by granting declarations which were not specific as to the date of any breach, the term of any particular award of which the breach had been committed, or the nature of the breach." 80 In these passages it is apparent that the Full Court is directing attention to the form of the declaratory judgments and not as to whether any declaration should have been granted. The criticism seems to be that the declarations were not sufficiently specific to amount to a declaration of the rights of the parties. It is clear that the declarations were not a complete statement of the parties' rights. However, it is incorrect to say that they were not a sufficient statement to satisfy the description of a declaration of right. 81 In any event, even if there be error in what the trial judge did (either in the exercise of his discretion to grant declaratory relief or in the form in which he expressed that relief), that error could have been rectified by the Full Court in the normal way. The Full Court was not entitled to ignore the appeal or the application for leave to appeal, as if the declaratory judgments did not exist. 82 What is the consequence of the Full Court's errors? In particular, did the decision alter what would otherwise have been the effect on the parties of the declaratory judgment, namely its operation as an estoppel, so that there would be no point to the appellant's objection to setting down the hearing on penalties? 83 As it turns out, I have already provided one reason why the declaratory judgment could no longer create an estoppel, namely because the decision of the Full Court, whether right or wrong, produced a new estoppel binding on the parties. No party was permitted to deny that the declaratory judgments were of no effect, notwithstanding that the declaratory judgment was still in force. 84 There is a second reason why the trial judge was bound by the decision of the Full Court. According to the doctrine of precedent, a court is bound to follow the decisions of courts superior to it in the same hierarchy. Some decisions, however, do not have the strength of an authoritative decision. A decision which is per incuriam is an example. A per incuriam decision is a judgment given in ignorance of some authority, or statutory provision, which, had it been referred to, would have resulted in a different decision: Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718; Miliangos v George Frank (Textiles) Ltd [1976] AC 443. 85 It seems to me that the decision of the Full Court was per incuriam. It overlooked both relevant and binding authority which, if it had been applied, would have required a different result. Even so, the trial judge could not ignore the decision. The reason is given in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166. There Moffitt P (with whom Glass JA agreed) said (at 177): "The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy. It is a rule which applies only to a review by a court of its own decision … Prior error in a decision can be adjusted only by a court higher in the appellate hierarchy or in exceptional cases by the appellate court itself." See also: Cassell & Co Ltd v Broome [1972] AC 1027, 1131; Baker v R [1975] AC 774, 788; Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884, but compare: Orica Ltd v Federal Commissioner of Taxation (2001) 182 ALR 77; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] 1 KB 711. So the trial judge was bound by the decision of the Full Court. However, his decision to set the case down for the hearing on penalty was a correct one in all the circumstances. 86 I would dismiss the appeal. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 20 March 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 297 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WARRAMUNDA VILLAGE INC APPELLANT AND: DIANNE PRYDE and BERYL ANDERSON RESPONDENTS JUDGES: LEE, FINKELSTEIN and GYLES JJ DATE: 20 MARCH 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT GYLES J: 87 I have had the advantage of reading the judgment of Finkelstein J in draft and this enables me to be more economical in giving these reasons than would otherwise have been the case. I agree with Finkelstein J (and with the trial judge) in concluding that the relevant awards cannot be construed on the basis that they should be consistent with the Hostel Personal Care Workers Agreement 1991 (Vic) ("the 1991 industrial agreement") or the industry practice which that agreement reflected. However, I do not share the opinion that the hours spent on the so-called "sleepover" shift are hours worked in the ordinary sense, pursuant to any of the awards. For the sake of convenience, I, as with Finkelstein J, will take the Health and Allied Services – Private Sector – Victoria Award 1995 ("the 1995 award") as the template. 88 Relevant factual findings of the trial judge included the following: "6. During the period covered by the application, each applicant was required to perform a sleepover shift. A sleepover shift was ordinarily performed after the relevant employee had been rostered to work from 3.30 pm to 10 pm. The sleepover shift would then be performed from 10 pm to 7 am. A flat payment of $40 was made for the performance of a sleepover shift. … 8. On each occasion the sleepover shift was performed, another personal care worker would be on duty at the hostel. That shift was known as the "stand-up shift". Like the sleepover shift, it commenced at 10 pm and concluded at 7.30 am the next morning. From 10 pm to 7.00 am the hostel would be staffed by one personal care worker on active duty (hence the name "stand-up") and another personal care worker located at a flat within the premises of the hostel being available to attend to assist the person on the stand-up shift on very short notice. Persons engaged on the sleepover shift were invariably supervisors. This included the applicants. 9. When a resident at the hostel or in the adjacent units, which were also part of Warramunda's complex, pressed a buzzer for assistance, that buzzer would sound on the pager carried by the person on stand-up shift and also in the flat where the person on sleepover shift was on duty. When the stand-up shift worker needed the assistance of the sleepover shift worker an urgent code (code 30) would be buzzed by the stand-up shift worker. When a code 30 was buzzed the sleepover shift worker would attend to immediately assist the stand-up shift worker. On some occasions, a code 30 would sound when the sleepover shift worker was required to assist with the giving of medication to a hostel resident or when medical assistance needed to be sought. 10. The details of residents' calls upon the stand-up shift worker were entered in a book known as the buzzer book. Code 30 entries were also recorded in the buzzer book. However, due to the pressure of work, not every relevant entry was always made in the buzzer book by the stand - up shift worker. Different people engaged on each shift had differing experiences about the extent of calls made to the sleepover shift person for assistance in response to code 30 buzzers or otherwise. … … 12. The person on the sleepover shift was a personal care worker engaged on that shift in a supervisory capacity. This included the applicants when they performed their duty. A former member of the Management Committee of Warramunda, a Mr Smith, gave evidence that the person on sleepover shift was there to supervise and assist the person on stand-up shift. It is clear that part of the role of the person on the sleepover shift was to assist the person on stand-up shift as necessary and to supervise the performance of any work co-performed by the two workers. Mr Smith further gave evidence that the sleepover position was created: "… because of the (larger physical) area (after extensions) and we had a stand-up staff on all night and instead of having to have a committee member there to come and help there was a staff member on sleepover duty." (Emphasis supplied). Mr Smith added that: "We thought it would be more efficient, having somebody there to help if help was needed." Shortly after giving that evidence, Mr Smith was asked the following question by Ms J Bornstein, counsel for the applicants: "So was it thought easier to have a worker on the premises to work at short notice?" Mr Smith's answer was: "Yes, 24 hours a day."" 89 The essence of the reasoning of the trial judge was as follows: "17. The duties performed on that shift constituted work. The applicants did not perform the sleepover shift for their own personal gratification or as volunteers. They were engaged at work on their employer's premises on immediate stand-by to attend for immediate duty. They were not paid to simply go to sleep. As the duty performed was work, in the absence of a specific award provision dealing with that shift, the employees performing that work were entitled to be paid for the shift as time worked. Consequently, by not paying the applicants their full entitlements for working on these shifts, Warramunda acted in breach of the 1993 Award and the 1995 Award. … 23. Employees on the sleepover shift were on duty when engaged on the shift. In no real sense can they be said to have been off duty whilst so employed. They remained at work ready to be called to assist the stand-up shift occupant at extremely short notice. They were in no sense off-duty but on-duty for the purpose of a swift response to a call for assistance. They were not at home in a position to do what they might otherwise have been doing at home. They were away from their families in the service of their employer. …" 90 No particular provision of the awards was identified below as breached by the appellant. In argument, reference was made to, inter alia, cl 13 of the 1995 award, which is as follows: "13 – FULL-TIME EMPLOYMENT A full-time employee is one who is employed and who is ready, willing and available to work a full week of 38 hours or an average of 38 hours as per clause 27 of this award at the times and during the hours as may be mutually agreed upon or in the absence of such agreement as prescribed by the employer. Subject to the provisions of clause 27 of this award such employee shall be paid the full weekly wage appropriate to the employee's classification, irrespective of the number of hours worked not exceeding 38, or an average of 38 per week as per clause 27 of this award." 91 The argument for the respondent in supporting the judgment below focused very largely upon the issue as to whether what was involved in the "sleepover" shift was "work" of eight hours pursuant to the award, and appeal was made to authorities in different jurisdictions and different contexts by way of support for that proposition. In my opinion, reference to both cl 13 and the authorities to which I have referred is misplaced. There is no doubt that each of the applicants was a full-time employee and that cl 38 applied to each of them. The question at issue was the proper basis for remuneration for what was done during the "sleepover" shift. The most that the authorities referred to may establish is that a period when a particular employee is not physically carrying out duties may, depending upon the context and the terms of employment, be regarded as work. That is of little value in resolving the present controversy and may be inclined to divert attention from the real issue. The relevant question is not whether what was done was "work" in the abstract. 92 What was involved in the "sleepover" shift did not fit easily or naturally into any category in the award. One possibility was that it was simply "work" in the ordinary sense. Another was that it was a combination of being on call for the whole period of the shift, together with work on recall insofar as duties were actually performed. The latter would be in accordance with cl 32, the most relevant portions of which are as follows: "32 – ON CALL/RECALL (a) All employees required to be "on call" or who return to duty when off duty shall be paid, in addition to any other amount payable, a sum equal to 2.5 per [sic] of the weekly base rate of pay for the wage skill group 5 as defined in clause 21, per period of twelve hours or part thereof. (b) Any period of overtime involving a recall to duty during an off duty period and which is not continuous with the next succeeding rostered period of duty shall be paid at a minimum of three hours at the appropriate overtime rate. …" When the matter is approached as a choice in this way, it is clear enough, in my opinion, that a "sleepover" shift consisted of being on call for the whole of the shift and a recall to duty with the working of overtime whenever the employee was called upon to perform active duty. As usual, according to the award, overtime is paid at rates well in excess of ordinary time (see cl 31), and cl 32(b) is beneficial in application if there is a recall. 93 There are a number of particular difficulties arising from the terms of the award if a person at leisure or asleep in self-contained quarters is regarded as at work in the ordinary sense. A good example is cl 30, dealing with meal intervals, rest breaks and wash-up time: "30 – MEAL INTERVALS, REST BREAKS AND WASH UP TIME Meal intervals (a) (i) Except as provided in subclause (b) hereof, a meal interval of not less than 30 minutes and not more than 60 minutes shall be allowed each employee during each shift. Such meal interval shall not be counted as time worked. (ii) Each employee on night duty who is not relieved from duty (and "on call") during the rostered meal interval shall be granted a meal interval of not less than twenty minutes to be commenced after completing three hours and not more than five hours of duty. Such time to be counted as time worked. (iii) The above "crib time" arrangement may also be adopted in any case where there is mutual agreement between employer and employee. Rest intervals (b) Employees shall be entitled to a ten minute rest interval in each four hours worked or part thereof being greater than one hour. Such rest break shall be at a time suitable to the employer and shall be counted as time worked. Wash-up time (c) Where necessary an employee shall be entitled to cease work ten minutes before their rostered finishing time to enable him or her to wash or to change their clothes." It is plain that the underlying assumption is that a person who is covered by that clause (even though "on call") will be conscious whilst on duty. 94 More importantly, it is anomalous, indeed, bordering on the absurd, that a person at leisure or asleep in self-contained quarters is regarded as working in the same sense as the nurse on active "stand-up" duty during the same shift, at the same time, and is to be remunerated on that basis. In my opinion, it is preferable to avoid a construction of the awards which would have that anomalous result (Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, 321). The Court is in no position to assess whether the on call provisions of this award strike a fair balance between employee and employer. The fact that a different, but similar, solution is reflected in the 1991 industrial agreement, industry practice and the current post 1995 award does not assist either way. The trial judge referred to the fact that it is not the function of the Court to consider the merits of an award provision, but, rather, to construe and apply the award to the facts. 95 I should say something about the finding that the "sleepover" employee was supervising. No matter what this may mean, it cannot be suggested that it could lead to the conclusion that sleeping or watching television is working within the meaning of these awards if that were not otherwise so. In any event, what I take to be meant is that the "sleepover" employee will be someone with the normal status of supervisor and will be senior to the employee on "stand-up" duty so that, in the event of being called, the "sleepover" person will be in charge whilst on active duty. 96 In my opinion, the trial judge fell into error in not addressing the choice with which he was confronted and so misconstrued the award. The appellant should succeed in its alternative argument. As I read the pleadings, that would lead to dismissal of the proceeding, as no breach of the on call and associated provisions of the awards was alleged. 97 Although not strictly necessary, it is appropriate that I say something as to the procedural ground of appeal. I agree with Finkelstein J that the exercise of discretion by the trial judge should not be disturbed but only because of the belated nature of the application. The rejection of this ground of appeal is no barrier to the granting of an application for retrospective variation of the awards and is, indeed, irrelevant to such an application. Consideration of the history of the matter reveals that there is substance to the application for retrospective variation. In saying this, I do not intend to indicate any view as to the proper fate of such an application. 98 The appeal should be allowed, the orders below set aside and, in lieu thereof, it should be ordered that the proceeding be dismissed with no order as to costs of the appeal or the proceeding at first instance. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 20 March 2002 Counsel for the Appellant: Mr C O'Grady Solicitor for the Appellant: Russell Kennedy Counsel for the Respondents: Mr H Borenstein Ms J Bornstein Solicitor for the Respondents: Maurice Blackburn Cashman Date of Hearing: 12 November 2001 Date of Judgment: 20 March 2002