AFMEPKIU v BHP Billiton Iron Ore

Industrial Relations Commission (NSW)|2006-07-31|Before: Walton J, Boland J, In Re P, Mr J

CITATION: Skilltech Consulting Services Pty Ltd and The Australian Workers' Union, New South Wales [2007] NSWIRComm 6

APPELLANT Skilltech Consulting Services Pty Ltd PARTIES: RESPONDENT The Australian Workers' Union, New South Wales

CORAM: Walton J Vice-President; Boland J; Ritchie C

Industrial Relations Act 1996 ss 136(1)(d) 296 298 302 Meter Readers and Field Officers' (State) Award LEGISLATION CITED: Workplace Relations Act 1996 ss 4 16 170VQ(4) Schedule 7 ss 1 17 Workplace Relations Amendment (Work Choices) Act 2005 Workplace Relations Regulations 1996 Ch 2 reg 1.2

AFMEPKIU v BHP Billiton Iron Ore [2006] WAIRC 04716 Australian Workers' Union, New South Wales (Technical, Administrative, Professional and Staff Branch) and Skilltech Consulting Services Pty Ltd [2006] NSWIRComm 148 British Transport Commission v London County Council [1953] 1 QB 736. Re CB (No. 1) [1982] VR 657 CFMEU v Newcrest Mining Limited (2005) 139 IR 50 CFMEU v SNC Lavalin (2006) 150 IR 458 CASES CITED: Dodlot Ltd v Hartogen Energy Ltd (1991) 25 NSWLR 278 House v The King (1936) 55 CLR 499 IRC v Clifforia Investments [1963] 1 All E.R. 159 Mercer v Pearson (HM Inspector of Taxes) [1973 - 1978] Tax Cases, Vol 51 at 217 In Re P (Infants) [1962] 1 WLR 1296 Parry Sound (District) Social Services Administration Board v O.P.S.E.U., Local 324 [2003] 2 SCR 157 Watkinson v Hollington [1943] 2 All ER 573

HEARING DATES: 31 July 2006, 30 November 2006

APPELLANT Mr J Murphy of counsel with Ms E Winram LEGAL REPRESENTATIVES: Ebsworth & Ebsworth Lawyers

RESPONDENT Mr N Rudd Industrial Officer with Mr J Day

CORAM: WALTON J, Vice-President BOLAND J RITCHIE C Thursday 15 February 2007

Skilltech Consulting Services Pty Ltd and The Australian Workers' Union, New South Wales

Application by Skilltech Consulting Services Pty Ltd for leave to appeal and appeal against a decision of Deputy President Sams given on 4.5.2006 in matter no. IRC 6315 of 2005.

1 These proceedings arise from an industrial dispute notified by the Australian Workers' Union, New South Wales ("the Union") on 5 December 2005 concerning the Union's rights of access to time and wages records of Skilltech Consulting Services Pty Ltd ("the Company"). 2 The Union was a party to the Meter Readers and Field Officers' (State) Award 2005 ("the Award"), which commenced on 1 May 2005. The Company's employees performed work covered by the Award. The Union, suspecting that the Company had breached two provisions of the Award (including Clause 41 which required the Company to give the Union one working week's notice before the appointment of a new employee and the opportunity to talk to new employees for 30 minutes), sought access to the Company's time and wages records pursuant to s 298 of the Industrial Relations Act 1996 ("the Act") by written request dated 1 December 2005. The Company refused this request on 2 December 2005, asserting that s 298 did not apply because its employees were engaged pursuant to Australian Workplace Agreements ("AWAs"). The decision at first instance

3 At the time of the dispute (and the hearing of the arbitration), s 170VQ(4) of the Workplace Relations Act 1996 (Cth) was in force. That section stated: During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment. 4 Relying upon the decision of the Full Bench in CFMEU v Newcrest Mining Limited (2005) 139 IR 50 at [65]-[72] to the effect that s 170VQ could not, for want of constitutional power, extinguish the power of a State Industrial Authority to exercise its conciliation and arbitration powers to resolve an industrial dispute merely because of the existence of an AWA, on 4 May 2006 in Australian Workers' Union, New South Wales (Technical, Administrative, Professional and Staff Branch) and Skilltech Consulting Services Pty Ltd [2006] NSWIRComm 148, Sams DP held: 23 It seems plain enough, that s 170 VQ(4) of the Workplace Relations Act , expressly applies to the terms and conditions of the employee's employment such as to exclude the terms of a State award that would otherwise apply to the employee's employment where an AWA is in place. However, viewed in the way described above, it seems to me that the language of the section cannot be so wide or so strained as to operate to exclude the rights of registered industrial organisations and their authorised officers which are otherwise provided for under the New South Wales legislation, such as those rights identified in s298. 24 These rights are not analogous to the terms and conditions of the employee's employment. These are not the rights of the employees, but rather are rights of an authorised industrial officer of a registered organisation. Thus, I cannot conceive how it is possible to invoke the exclusion provisions of s 170 VQ(4) of the Federal Act for persons who are most certainly not employees. 5 Pursuant to ss 136(1)(d) and 302 of the Act, Sams DP then made the following orders: 1. Skilltech Consulting Services Pty Ltd shall provide to an authorised officer of the Australian Workers' Union New South Wales all time and wages records and any other relevant documents covering its employees who might be or otherwise employed under the terms of the Meter Readers and Field Officers' (State) Award. 2. The above order shall be complied with within seven (7) days of today. 6 The Company immediately sought a stay of the orders made pending the hearing of its application for leave to appeal and appeal. On 11 May 2006 a temporary stay was granted and on 25 May 2006 the stay was extended until further order of the Commission. 7 We think that the intrinsic conclusion in CFMEU v Newcrest Mining Limited concerning the effect of s 170VQ(4) is correct (as is the conclusion of Sams DP in this respect), and note in passing that neither party challenged it (despite the preservation of s 170VQ in relation to "pre-reform AWAs": see ss 1 and 17 in schedule 7 of the amended Workplace Relations Act 1996). However, as we discuss below, this appeal turns on different considerations. The Appeal 8 On 27 March 2006, between the hearing of the arbitration and the Deputy President's decision and orders, the Workplace Relations Amendment (Work Choices) Act 2005 came into effect. 9 The Company sought leave to appeal and appealed the decision and orders of Deputy President Sams on the basis that: the Company is a constitutional corporation as defined in s 4 of the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (the "WRA"); s 16 of the WRA excludes the operation of the Act in respect of the Company's employees; and, consequently the orders were beyond the power of the Commission. 10 Before the hearing of the appeal, the preponderance of the parties' intended contentions centred upon the effect of the Workplace Relations Amendment (Work Choices) Act 2005. However, in its amended outline of contentions the Company raised the question of the Commission's power under Ch 5 Pt 7 of the Act. At the initial hearing on 31 July 2006, the Company sought and was granted leave to amend its application to include this ground. The Company was also granted leave pursuant to s 191(2) of the Act to adduce fresh evidence as to whether, at the date of the orders made at first instance, all of its employees were engaged pursuant to AWAs. Following subsequent directions, the hearing was adjourned to 30 November 2006. Leave to appeal

11 This appeal raises important questions concerning the effect of the Workplace Relations Amendment (Work Choices) Act 2005 on proceedings which had commenced in the Commission before the Amendment Act came into effect (particularly Ch 2 reg 1.2 of the Workplace Relations Regulations 1996) and we consider that it is in the public interest that this matter be examined by a Full Bench of the Commission. Leave to appeal is granted. The Evidence

12 Mr Mark Raymond Chandler, National Operations Manager, gave evidence on behalf of the Company that as at 27 March 2006 (and hence as at the date of the orders) all employees were employed pursuant to AWAs. This evidence was not disputed by the Union. 13 However, Mr Chandler's evidence (which included an affidavit annexing filing receipts and approval notices from the Office of the Employment Advocate ("the OEA"), and "Schedule 1" and the execution page in relation to each AWA) also revealed that, in the case of each employee, there was a delay between the date each AWA was signed (described in the AWA as the "commencement date of employment under this Agreement") and the date upon which the OEA issued a "Filing Receipt". Each Filing Receipt stated: "This receipt confirms that the Australian workplace agreement between SKILLTECH CONSULTING SERVICES PTY LTD and [NAME] was filed by the Employment Advocate today". On the basis of this evidence, we accept the Union's submission (which was not contradicted by the Company) that the date the OEA issued the Filing Receipt was the date the AWA was filed. 14 Notwithstanding the evidence that, for unexplained reasons, the OEA compared the Company's AWAs to various awards (including the Gas Industry Award 1986) for the purpose of applying the "no disadvantage" test, the Union correctly submitted that, in the absence of an AWA, the Award would apply to the Company's meter readers and field officers. This was not disputed by the Company and indeed Mr Chandler gave evidence that, in his capacity as National Operations Manager, he had been given legal advice to the same effect. 15 Before the Workplace Relations Amendment (Work Choices) Act 2005 came into effect, AWAs did not commence until the date of filing pursuant to s 170VJ(1). Some AWAs (signed by existing employees) commenced even later, upon the date of approval by the OEA, pursuant to s 170VJ(2). Accordingly, before 27 March 2006, each employment relationship was governed by the Award for a period of time. So much was effectively admitted by Mr Chandler's oral evidence that the time between an employee returning a signed AWA to the Company's office and the date of filing with the OEA was "generally between one and three days". Notwithstanding Mr Chandler's oral evidence, a review of the annexures to Mr Chandler's affidavit indicates that the delay actually ranged from a few days to six months (in the case of Mr Zammit) and that delays of two to four weeks were not uncommon. 16 Furthermore, we are satisfied on the basis of the dates of the documents annexed to Mr Chandler's affidavit that: (i) in November 2005, immediately preceding the dispute, several employment relationships were governed by the Award; and (ii) that at least one employment relationship - that of Mr Ahmad Hamwi - was governed by the Award in early December 2005, when the Union sought to exercise its rights under s298 of the Act and the Company refused. The AWA of Mr Hamwi was: signed on 24 November 2005; purported to commence on 24 November 2005; and, was filed with the OEA (thus effectively commencing) on 15 December 2005. Submissions

17 Before proceedings were adjourned part-heard for the purpose of taking evidence, the Company made the following submissions (in summary):

It was a constitutional corporation as defined in s 4 of the WRA and the Act is a "State or Territory industrial law" as defined in s 4; s 16 of the WRA excludes the operation of the Act in respect of the Company's employees; and consequently the orders made by Sams DP were beyond the power of the Commission.

In the alternative, Pt 15 of the WRA covered the field in relation to union rights of entry and inspection. It was inconsistent with Ch 5 Pt 7 of the Act and, by virtue of s 109 of the Constitution, prevailed over Ch 5, Pt 7 of the Act.

The Commission's power to make orders of the type made by Sams DP against constitutional corporations was extinguished on 27 March 2006. There was nothing in the transitional provisions to preserve that power in relation to proceedings which commenced before that date.

4.. Regardless of the WRA, the orders were beyond the powers contained in Ch 5 Pt 7. Such orders could only be made for the purpose of permitting an authorised industrial officer to investigate suspected breaches of the Act or of any industrial instrument that applied to employees. The Award did not apply to the employees, because their employment was regulated by AWAs.

The orders refered to employees "who might be or otherwise employed under the terms of" the Award. There were no such employees for the reasons stated above and thus the orders could have no effect. 18 The Company made the following additional submissions following the closing of its evidentiary case:

Chapter 2 regulation 1.2(2) of the Workplace Relations Regulations 1996 does not apply to exclude the operation of s 16 of the WRA because "s 298 of the Act does not create an obligation that gives rise to questions of compliance based upon an act or omission".

Alternatively, even if regulation 1.2(2) does apply, s 298 does not apply because all employees were covered by AWAs. For s 298 to apply, there must be at least one employee covered by the Award at the date the Union sought to exercise its right of entry. There is no evidence to establish that there was any employee covered by the Award on that date, and to the extent that there may be such an employee, the orders could only go to that person for that period of time.

Finally, to the extent that there was a lacuna between the commencement of employment and the commencement of the operation of the AWAs, on Mr Chandler's evidence, such a lacuna was generally of three days, and, as a matter of discretion, the Commission "would not make orders in relation to that brief period of time because to do so would be a matter of futility". 19 In response, the Union made the following submissions (in summary):

The Company has asserted that the decision of Sams DP should be set aside due to the commencement of the Workplace Relations Amendment (Work Choices) Act 2005 on 27 March 2006. This does not disclose any error in the decision at first instance and is not, of itself, a proper basis for an appeal.

Once judgment was reserved on 16 March 2006, the matter had been finalised; the commencement of the Workplace Relations Amendment (Work Choices) Act 2005 has no effect on the decision of Sams DP. The Workplace Relations Amendment (Work Choices) Act 2005 is not retrospective.

In any event, regulation 1.2(2) of the Workplace Relations Regulations 2006 provides that s 16(1) of the WRA does not apply to a law of a State or Territory (such as the Act) to the extent to which it relates to compliance with an obligation in respect of an act or omission which occurred before 27 March 2006. In this case, the dispute, which was notified on 5 December 2005, concerned the Union's allegation that the Company had breached right of entry provisions. As such, the dispute relates to: (i) an act which occurred before 27 March 2006 (that act being the Company's refusal to allow the Union entry to investigate the suspected breach); and (ii) compliance with the Company's obligations under s 298 of the Act. Accordingly, regulation 1.2(2) applies.

This interpretation of regulation 1.2(2) is supported by the decisions of the Western Australian Industrial Relations Commission in CFMEU v SNC Lavalin (2006) 150 IR 458 and AFMEPKIU v BHP Billiton Iron Ore [2006] WAIRC 04716 that the term "relates to compliance with an obligation" should be given a broad meaning. The legislation 20 Section 296 of the Act contains the following definitions: authorised industrial officer means an officer or employee of an industrial organisation of employees who holds an instrument of authority for the purposes of this Part issued by the Industrial Registrar under section 299. relevant employee , when used in connection with the exercise of a power by an authorised officer of an industrial organisation, means an employee who is a member of the organisation or who is eligible to become a member of the organisation. 21 Section 298 of the Act provides: 298 Right of entry for investigating breaches (1) An authorised industrial officer may enter, during working hours, any premises where relevant employees are engaged, for the purpose of investigating any suspected breach of the industrial relations legislation, or of any industrial instrument that applies to any such employees. (2) For the purpose of investigating any such suspected breach, the authorised industrial officer may: (a) require any employer of relevant employees to produce for the officer's inspection, during the usual office hours at the employer's premises or at any mutually convenient time and place, any employees' records and other documents kept by the employer that are related to the suspected breach, and (b) make copies of the entries in any such records or other documents related to any such suspected breach. 22 Sections 136 and 302 of the Act provide: 136 Arbitration of dispute

(1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 302 Powers of Commission The Commission may deal with an industrial dispute about the operation of this Part, but does not have any jurisdiction to make an award or order conferring additional or inconsistent powers of entry or inspection. 23 Section 4 of the WRA contains the following relevant definitions: applies to employment generally : a law of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to: (a) all employers and employees in the State or Territory; or (b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory. For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. employee has a meaning affected [sic] by section 5. employer has a meaning affected [sic] by section 6.

State or Territory industrial law means: (a) any of the following State Acts: (i) the Industrial Relations Act 1996 of New South Wales; ... 24 Sections 5 and 6 of the WRA provide:

5 Employee (1) In this Act , unless the contrary intention appears: "employee" means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6 (1), by an employer , except on a vocational placement . (2) However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1). (3) In this Act , unless the contrary intention appears, a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning. (4) In this Act , unless the contrary intention appears, a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement .

6 Employer (1) In this Act , unless the contrary intention appears: "employer" means: (a) a constitutional corporation, so far as it employs, or usually employs, an individual; or (b) the Commonwealth, so far as it employs, or usually employs, an individual; or (c) a Commonwealth authority , so far as it employs, or usually employs, an individual; or (d) a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce , employs, or usually employs, an individual as: (i) a flight crew officer ; or (ii) a maritime employee ; or (iii) a waterside worker ; or (e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or (f) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia , so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory. (2) However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1). (3) In this Act , unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.

25 Section 16 of the WRA provides: 16 Act excludes some State and Territory laws

(1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer: (a) a State or Territory industrial law; (b) a law that applies to employment generally and deals with leave other than long service leave; (c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 623); (d) a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; (e) a law that entitles a representative of a trade union to enter premises.

State and Territory laws that are not excluded (2) However, subsection (1) does not apply to a law of a State or Territory so far as: (a) the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such a law; or (b) the law is prescribed by the regulations as a law to which subsection (1) does not apply; or (c) the law deals with any of the matters (the non-excluded matters ) described in subsection (3). (3) The non-excluded matters are as follows: (a) superannuation; (b) workers compensation; (c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety); (d) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers); (e) child labour; (f) long service leave; (g) the observance of a public holiday, except the rate of payment of an employee for the public holiday; (h) the method of payment of wages or salaries; (i) the frequency of payment of wages or salaries; (j) deductions from wages or salaries; (k) industrial action (within the ordinary meaning of the expression) affecting essential services; (l) attendance for service on a jury; (m) regulation of any of the following: (i) associations of employees; (ii) associations of employers; (iii) members of associations of employees or of associations of employers.

This Act excludes prescribed State and Territory laws (4) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection. (5) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4). Definition (6) In this section: this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it. 26 Schedule 7 of the WRA contains the relevant transitional provisions: 1 Definitions In this Schedule: pre-reform Act means this Act as in force just before the reform commencement. pre-reform AWA means an AWA (within the meaning of the pre-reform Act) that: (a) was made before the reform commencement; and (b) was approved under Part VID of this Act (whether before the reform commencement, or after the reform commencement because of Part 8 of this Schedule). 17 Continuing operation of pre-reform AWAs - under old provisions (1) Subject to this Schedule, the following provisions of the pre-reform Act continue to apply in relation to a pre-reform AWA, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 : (a) section 170VG; (b) subsections 170VH(1) and (2); (c) section 170VM; (d) subsections 170VN(1) and (2); (e) subsections 170VO(5) and (6); (f) subsections 170VPA(4) and (5); (g) sections 170VPD, 170VPK, 170VQ, 170VR, 170VV and 170VZ; (h) Division 8A of Part VID; (i) Division 9 of Part VID (except sections 170WHC and 170WHD); (j) any other provision relating to the operation of the provisions mentioned in the preceding paragraphs. (2) Regulations made under the pre-reform Act, to the extent that they relate to the provisions mentioned in subclause (1), continue to apply in relation to a pre-reform AWA. 27 Finally, Ch 2 reg 1.2 of the Workplace Relations Regulations 1996 contains the following relevant provisions: [Ch 2 reg 1.2] State and Territory laws that are not excluded by the Act - general

(1) For paragraph 16 (2) (b) of the Act, subsection 16 (1) of the Act does not apply to a law of a State or Territory of a kind that is mentioned in this regulation. Rights and obligations - general (2) Subsection 16 (1) does not apply to a law of a State or Territory (including a law relating to appeals) to the extent to which it relates to compliance with an obligation: (a) under: (i) that law; or (ii) another law of a State or Territory; which would otherwise be excluded by subsection 16 (1) of the Act; and (b) in respect of an act or omission which occurred prior to the reform commencement. Rights and obligations - injunctions (3) However, subregulation (2) does not apply to the extent to which that law of a State or Territory, or another law, provides for the granting of an injunction in relation to conduct that has not yet occurred.

Termination of employment (4) Subsection 16 (1) does not apply to a law of a State or Territory (including a law relating to appeals) to the extent to which it relates to a termination of employment that occurred before the reform commencement. Unfair contracts (5) Subsection 16 (1) does not apply to a law of a State or Territory (including a law relating to appeals) to the extent to which it: (a) relates to proceedings that commenced before the reform commencement; and (b) provides for the variation or setting aside of rights and obligations arising under: (i) a contract of employment; or (ii) another arrangement for employment; that a court or tribunal finds is unfair. Succession, transmission or assignment of business (6) Subsection 16 (1) does not apply to a law of a State or Territory (including a law relating to appeals) to the extent to which it relates to a succession, transmission or assignment of a business, or a part of a business, that occurred before the reform commencement.

28 The key issue in this appeal is whether s 16 of the WRA applies. Before we discuss this, it is appropriate to dispense with the issue raised by the Company under s 298.

Section 298 Issue 29 As a preliminary point, we can dismiss the Company's argument that there are no employees to whom the orders could apply. In our view, his Honour's first order should be interpreted as referring to those employees capable of being employed under the terms of the Award, but for the AWAs. 30 The Company's submissions that the orders made by the Deputy President were beyond power under the Act (regardless of the Workplace Relations Amendment (Work Choices) Act 2005) were more persuasive and would, had they been supported by the evidence, have determined the appeal. 31 There is no doubt that it was within the power of the Deputy President to make orders for the purpose of permitting an authorised industrial officer to investigate suspected breaches of an industrial instrument that "applies to" any "relevant employees". The Company did not, at any stage, suggest that its employees were not eligible to become members of the Union and it must therefore be accepted that they are "relevant employees". However, it is necessary to consider the meaning of "applies to" in s 298. The Company submitted that the relevant industrial instrument - the Award - does not "apply to" its employees, because every employee was engaged pursuant to an AWA. 32 The Oxford English Dictionary (2nd Ed) contains the following relevant definitions of the verb "to apply", both of which emphasise that the contact between the subject and object is practical, rather than theoretical or suspended in some way: 1. To put a thing into practical contact with another. ... 8. To bring (a law, rule, test, principle, etc.) into contact with facts, to bring to bear practically, to put into practical operation. (Cf. to apply a foot-rule to a wall, a test to a mineral, a principle to actions.). 33 This interpretation of the verb "to apply" in a legislative context was adopted by the majority of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v O.P.S.E.U., Local 324 [2003] 2 SCR 157 at 182-183 and is supported by IRC v Clifforia Investments [1963] 1 All ER 159 (in that the High Court held that "applies" is a use of the historic present and means applies or applied at the relevant time) and the decision of the Court of Appeal in British Transport Commission v London County Council [1953] 1 QB 736. 34 In our view, any alternative interpretation would strain the clear language of the section. While the AWAs operate, the Award does not apply to the employees of the Company. In those circumstances there is no right of entry under s 298, nor any corresponding power under s 302 to enliven the orders of Sams DP. 35 However, as the evidence established, at the time the Union sought to enter the Company's premises to inspect documents, at least one employment relationship was governed by the Award and probably many more. The Company's submission to the contrary is unsustainable. Accordingly, the Union did have a right of entry under s 298 and it was within the power of Sams DP to enforce that right by making orders, subsequently, in the terms that he did. It is inconsequential that, at the time the orders were made, all employees were engaged pursuant to AWAs; nor was this seriously raised by the Company. (In fact, it is implicit in the Company's submissions that the relevant time is the time the Union sought to exercise its right of entry). The right conferred by s298 - a fundamental means of enforcement - is an essential component of the award system established by the Act and, at the very least, operates at the time entry is sought. 36 Finally, we reject the Company's submission in the alternative that, to the extent that there was a period of time during which its employees were covered by the Award, it was brief and the Commission, in its discretion, should not make orders in respect of it. This issue was not raised below, and we did not give leave to appeal in respect of it. The Company has been granted leave to appeal whether the orders of Deputy President Sams were within jurisdiction; this appeal is not an untrammelled review of the exercise of his Honour's discretion (nor could it be, in the absence of an error of kind described in House v The King (1936) 55 CLR 499, which was not, at any stage, suggested by the Company). In our view, there is no basis to criticise the manner in which Deputy President Sams exercised his discretion to make the orders the subject of this appeal.

The WRA 37 We now come to the fundamental issue in this appeal: whether, as the Company has submitted, the Commission's power to make the orders made by Sams DP was extinguised on 27 March 2006 by virtue of the WRA. In our view, the answer to this question must be in the negative, for reasons which we shall elaborate below. We shall start with Ch 2 reg 1.2(2), which is sufficient to determine the appeal. 38 Chapter 2 regulation 1.2(2) provides that s 16(1) of the WRA does not apply to the Act in the following relevant circumstances: (i) to the extent to which it relates to compliance with an obligation under the Act which would otherwise be excluded by s16(1); and (ii) in respect of an act or omission which occurred before 27 March 2006. Given the nature of s302 and its direct relationship with s298, it is necessary to consider the effect of Ch 2 reg 1.2(2) on both ss298 and 302. 39 As a preliminary point, we observe that although "a law of a State or Territory" is not defined in either the WRA or the Regulation, there can be no doubt that the phrase includes the Act. Accordingly, s16(1) does not apply to the Act: (i) to the extent to which it relates to compliance with an obligation under the Act which would otherwise be excluded by s16(1); and, (ii) in respect of an act or omission which occurred prior to 27 March 2006. 40 For the purposes of deciding whether Ch 2 reg 1.2(2) applies to s 298, we have assumed that s 16(1) would have the effect of excluding s 298 of the Act. (This may, in an appropriate case, be open to argument.) There are two issues to consider in deciding whether Ch 2 reg 1.2(2) applies to s 298: (i) whether s 298 creates an obligation within the contemplation of the regulation; and (ii) whether the purported exercise of a right of entry in this matter which occurred before 27 March 2006 is thereby protected by the regulation (to the extent that right arose under s298). 41 We do not accept the Company's submission that s 298 does not create an obligation that gives rise to questions of compliance based upon an act or omission. Although the Company did not develop this submission beyond bare assertion, or seek to argue in a serious way that it was under no obligation, we feel compelled to analyse the matter because of its important bearing on the way the regulation operates. 42 Young J considered the essential nature of an obligation in detail in Dodlot Ltd v Hartogen Energy Ltd (1991) 25 NSWLR 278 at 281. In particular, his Honour referred to the observation in Zimmerman, The Law of Obligations, (1990) Cape Town, Juta, at 1, that the technical term "obligation" is used widely to refer to a two-ended relationship which appears from the one end as a personal right to claim and from the other as a duty to render performance. Similarly, the word "obligation" was considered in Watkinson v Hollington [1943] 2 All ER 573 at 575 where Scott LJ made it clear in his judgment that the word was not limited to a contractual obligation or payment of money or non-payment of money but had a broader meaning - a tie - deriving from its legal origin as the binding tie established by a "bond" between the obligor and obligee. 43 Although it has been given a broad meaning in adoption cases (which consider statutory "parental obligations"), where the word has been held to include the natural and moral duty of a parent to show affection, care and interest towards their child (see for example Re CB (No. 1) [1982] VR 657 and In Re P (Infants) [1962] 1 WLR 1296), it is more generally accepted in a legal context to mean an obligation giving rise to legally recognised rights and duties, which, although not necessarily contractual, are legally enforceable: see Mercer v Pearson (HM Inspector of Taxes) [1973 - 1978] Tax Cases, Vol 51 at 217. An example is provided in Bishof & Anor v Wercog Pty Ltd (2005) NSWConvR 56-108 where the Administrative Decisions Tribunal held that a pre-contractual assurance gave rise to an obligation as defined in s71(2) of the Retail Leases Act 1994. 44 Section 298 grants a circumscribed right of entry to authorised industrial officers to any premises where relevant employees are engaged. We have already noted the fundamental nature of this right - essential to effective enforcement - to the whole scheme of awards established by the Act. Consonant with the analysis of Young J in Dodlot Ltd v Hartogen Energy Ltd, the other end of the relationship (or of the "obligation"), which is of equal significance to the scheme, is the duty on the part of the occupier of the premises (in this case, the Company) to allow the permitted entry. Any obligation may give rise to questions of compliance based upon an act or omission. Here, an employer may fail to comply with the obligation created by s 298 by act (refusal to allow entry, as in this case) or omission (for example, by failing to produce relevant documents for inspection). 45 It is necessary to further consider, however, whether the obligation created by s 298 is an obligation of the type contemplated by Ch 2 reg 1.2(2). We agree with the Union's submissions, and with the decisions of the Western Australian Industrial Relations Commission in CFMEU v SNC Lavalin (2006) 150 IR 458 and AFMEPKIU v BHP Billiton Iron Ore [2006] WAIRC 04716, that the term "relates to compliance with an obligation" in the regulation should be given a broad meaning. 46 As Wood C noted in AFMEPKIU v BHP Billiton Iron Ore [2006] WAIRC 04716 at [44], such an interpretation of reg 1.2(2) is supported by paragraph 17 of the Select Legislative Instrument 2006 No. 52 (an explanatory statement relating to the WRA issued by the authority of the Federal Minister for Employment and Workplace Relations) which refers to the enforcement of accrued rights (such as the Union's right of entry in the present case): 17. Subregulation 1.2(2) will apply to compliance with obligations, and the enforcement of accrued rights, which exist at the reform commencement under, for example, State and Territory industrial laws and instruments made under such laws. For example, if an employer failed to pay an employee in accordance with a State award prior to the reform commencement, then the employee may bring proceedings under the relevant State or Territory law to enforce the employer's award obligation. This is consistent with the approach taken (for repeals of Commonwealth laws) in paragraph 8(c) of the Acts Interpretation Act 1901 in relation to rights, privileges, obligations or liabilities which were acquired, accrued or incurred under a repealed Act before the Act was repealed. 47 It seems clear that the regulation contemplates a broad class of obligations, including those under awards (which may, in some respects, be considered as analogous to contractual obligations). The legally enforceable obligation created by s 298 falls into a narrower class - a statutory obligation - which, on any analysis, should be included in the application of the regulation. We can see no basis to interpret the regulations (which clearly, and uncontroversially, preserve various rights under State awards) in a manner which would nullify the enforcement (and thus the efficacy) of those very awards. 48 Upon this analysis the obligation in s298 arose at the point that the demand for entry was given on 1 December 2005; that is, the obligation crystallised upon the exercise of the right. The provisions of s298 were preserved under the regulation insofar as they operated to require a right of entry as at 1 December 2005. 49 We now turn to consider whether Ch 2 reg 1.2(2) applies to s302 and orders or directions made thereunder (it should be noted that no issue was raised in this case about the validity of the orders made under the Act, other than in relation to whether the Award applied at the time, which we discussed earlier). Does s302 "relate to compliance with an obligation under the Act"? Having found that s298 creates an obligation of the relevant type, this question can be answered by determining, in the present context, whether s302 and the orders made under it "relate to" compliance with s298. 50 The meaning of the phrase "relates to" was considered by Kenner C in CFMEU v SNC Lavalin (2006) 150 IR 458 at 464:

[23] The phrase "relates to", and like phrases, have been judicially considered on a number of occasions. In Quality Bakers Australia Ltd v Bennett (No 2) (1992) 47 IR 448 Moynihan P of the Industrial Court of Queensland referred to the meaning of "relating to" as depending upon its context, but suggested at 453 the need for "some direct or relevant connection between the two matters which are to be related: O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 367 and 373; Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512 at 516 and 528; Rosser v Donges [1990] 1 Qd R 490 at 492." [24] In Joye v Beach Petroleum NL (1996) 67 FCR 275 the Full Court of the Federal Court, on appeal in relation to an external administration under the Corporations Law, considered the meaning of s 58 of the Corporations Law containing the phrase "relating to". In this regard Beaumont and Lehane JJ said at 285: But, in our view, the exercise of characterisation to be undertaken in determining whether a law is "with respect to" a specific subject matter is not an appropriate test here, where, as matter of form and of substance, the language and context are different. The relevant question here, whether the "matter" is one "relating to" a winding up, is concerned with the existence of a relationship. It does not raise a question of characterisation. Of the phrase "relating to", Taylor J said, in Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620: ... the expression... is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used. Taylor J went on to say (at 620) that "relating to" in the context there considered was not the "equivalent of 'referring to'; the 'relationship' must be based upon some more substantial ground". Other decisions of the High Court have acknowledged that, ordinarily, "relates to" is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338 per Brennan J, at 347 per Dawson J, at 354 per Toohey J and at 370 per McHugh JJ and at 845-846 per Toohey and Gummow JJ; Re Jarman; Ex parte Cook (1996) 70 ALJR 550 at 553 per Brennan C and Gaudron J and at 556 per Kirby J. Tooheys' case has been followed in this Court (see, eg, Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 374 per Hill J and at 383 per Cooper J). In our view, there is nothing in the present context to suggest that the term "relating to", where used in s 580 and when picked up by s 581(4), was not intended to have a wide operation or that an indirect, but relevant, connection would not be a sufficient relationship for present purposes. [25] Adopting the approach outlined in the authorities to which I have referred, in my opinion, there is nothing in reg 1.2(2) which would, in its context, suggest that "relates to" as it is used in the regulation is to be given other than a wide scope. An indirect but relevant connection with the subject matter would suffice to bring the regulation into operation. 51 We agree with Kenner C's analysis of the meaning of "relates to" as it has been judicially considered and his Honour's conclusion concerning the interpretation of reg 1.2(2). In that case, which concerned an application for costs, Kenner C held: [26] It is open to any party to proceedings before the Commission to make an application for costs pursuant to s 27(1)(c) o f the Act . Because the ability to make an application for costs is necessarily an incident of the institution of the proceedings concerned, and which cannot arise independently of those proceedings, then in my opinion it is axiomatic that an application for costs by a party to proceedings dealing with compliance with an obligation under the Act, such as a lawful right of entry for union officials as in this case, necessarily "relates to" such proceedings. In this case in my opinion, there is a direct and substantial connection between the application for costs and the proceedings concerning the compliance with an obligation under the Act, about which reg 1.2(2) deals. 52 In this case, there can be no doubt that there is a direct and substantial connection between the orders contemplated by s302 which facilitate the obligation arising under s298 which crystallised prior to 27 March 2006. That is to say, the requisite relationship exists between the orders made by Sams DP under s302 and the obligation which arose at the point of the Union's demand to exericise its right of entry. Hence, the orders are not affected by the provisions of s16 of the WRA as they are preserved by the terms of the regulation. 53 As we have already noted, our conclusions concerning reg 1.2(2) are sufficient to determine the appeal. Given that ss 298 and 302 are not excluded by s 16 of the WRA, the orders made by Sams DP pursuant to ss 136 and 302 were within power.

The appeal is dismissed. 3. No order as to costs.

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Workplace Relations Act 1996(Cth)

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