Barry v Australian Broadcasting Corporation

APPLICANT The Hon Mr J W Shaw QC and Mr A R Moses of counsel Solicitor: Mr P Thompson Tress Cocks & Maddock LEGAL REPRESENTATIVES: RESPONDENT Mr R J Buchanan QC and Mr S Prince of counsel Solicitor: Ms H McKenzie Blake Dawson Waldron

JUDGMENT: - 36 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Friday, 15 February 2002

Application under section 106 of the Industrial Relations Act 1996 re unfair contract. JUDGMENT OF THE COURT [2002] NSWIRComm 14

1 This is a reference to a Full Bench of the Court by Walton J, Vice-President pursuant to s 193(1)(b) of the Industrial Relations Act 1996 (NSW) (the State Act) of a question of law arising in a matter before his Honour concerning an application under s 106 of the State Act for orders relating to an alleged unfair contract. The question so referred for our opinion was in the following terms : Whether pursuant to the operation of section 109 of the Commonwealth Constitution, the existence, terms and operation of section 32 of the Australian Broadcasting Corporation Act 1983 (Cth) deny to the Industrial Relations Commission of New South Wales in Court Session jurisdiction to deal with the applicant's summons for relief pursuant to section 106 of the Industrial Relations Act 1996 (NSW) and/or the power to grant relief sought in the summons for relief.

2 The question was formulated following the filing of a notice of motion by the respondent in the substantive proceedings for an order that the application under s 106 of the State Act be struck out for lack of jurisdiction as being inconsistent with s 32 of the Australian Broadcasting Corporation Act 1983 (Cth) (the Commonwealth Act) and so invalid by reason of s 109 of the Australian Constitution. In accordance with the requirements of s 78B of the Judiciary Act 1903 (Cth), notices of the proceedings were given to the Attorneys-General of the Commonwealth, the States and the Territories as the question involved a matter arising under the Constitution or involving its interpretation. However, at the ultimate hearing before us none of the Attorneys-General sought to appear and submissions were made by the parties only.

3 The necessary facts sufficient to enable the jurisdictional question to be considered were not in issue and were within a narrow scope. It appeared that the applicant, Paul Barry, was by occupation a journalist who had had approximately 25 years' experience as such in the television, broadcasting and newspaper industries before re-commencing employment with the respondent, the Australian Broadcasting Corporation, on 17 January 2000 after having been employed by it earlier from 1987 to 1994. He was employed as Journalist/Presenter for the respondent's television programme "Media Watch" based in Sydney but available to work in other locations as required. The employment was specified to conclude on 31 December 2000 and the terms of which were set out in writing in a letter dated 1 March 2000 from the respondent which the applicant accepted on 20 March 2000. In summary, those agreed terms were to be equivalent to those set out in the ABC Journalists and Reporters (Salaries) Award 1990, the ABC Journalists and Reporters Conditions of Employment (Interim) Award 1990 and the ABC (Journalists, Reporters and Related Classifications) Employment Agreement 1996-99 except as varied by the letter. The letter then specified various matters, including rate of salary and adjustment thereof, superannuation, re-imbursement for telephone calls, sick leave, days on which duties were to be performed, exclusivity of work for the respondent, confidentiality provisions, copyright in any original material produced, due and diligent performance of work, indemnification for alleged defamation or injurious falsehood and summary termination of the agreement for cause; not unimportantly for present purposes, the agreement was to "be read and construed in accordance with the laws of New South Wales and the parties agree to submit to the jurisdiction of the Courts of New South Wales".

4 The respondent is a statutory corporation constituted under s 5(1) of the subject Commonwealth Act as being a continuation of the Australian Broadcasting Commission which was a body corporate under s 30 of the Broadcasting and Television Act 1942 (Cth).

5 The employment proceeded uneventfully until the applicant said he experienced problems with senior management of the respondent concerning what he described as interference with the integrity of the Media Watch programme and in or about August 2000 he made enquiries whether the programme would be renewed for 2001. Certain discussions were held as to that aspect, which are not necessary to repeat at this stage, and in late-November 2000 the applicant sought to finalise an extension of six months to his contract in accordance with earlier discussions. However, in further discussions at that time between the parties as to the future of the programme the applicant was given one month's notice that the contract of employment would not be renewed beyond 31 December 2000. In the circumstances, the applicant claimed the contract was a relevantly unfair contract on various specified bases.

6 A declaration was claimed by the applicant in his originating summons for relief under s 106 of the State Act that the contract between him and the respondent whereby he worked as a television presenter in the television broadcasting industry was unfair, harsh and unconscionable, and against the public interest. An order was sought that the contract be varied as from its commencement on 17 January 2000, or from some later time, to include the following terms and conditions : 1. The employer will not by its conduct or actions repudiate the contract.

The employer shall treat the employee fairly and in good faith and shall be transparent with the employee in all its dealings with the employee.

The employer will not terminate the employee's employment in any circumstances that are harsh, unjust or unreasonable.

The employer will avoid any conduct which may unreasonably damage the reputation of the employee and cause him stress and embarrassment.

The employer will not by its conduct or actions dismiss the employee without paying to the employee reasonable notice assessed at 24 months or payment of 24 months salary in lieu of notice.

Without limiting the generality of paragraph 4, the employer will not act to in any way embarrass the employee or cause the employee stress or humiliation in relation to: (a) a request that he perform his duties as a journalist in a particular manner which would compromise his role as a journalist; and

The employer will afford procedural fairness to the employee prior to the termination of the employee's contract of employment.

The employer will compensate the employee for all losses suffered as a consequence of any breach of 1, 2, 3, 4, 5, 6 and 7 above.

Where the employer terminates this contract in breach of paragraphs 1, 2, 3, 4, 5, 6 and 7, the employer agrees to pay the employee damages for future economic loss, such loss is agreed by the parties to be an additional two years remuneration at full salary package rates.

Delete all terms in the contract that contradict or allow conduct by the respondent in contravention of the terms set out above.

7 Based on an annual salary of $135,000, an order was sought also that the respondent pay to the applicant an amount of money considered by the Court to be just in the circumstances of the case, including : (a) the amount of $270,000.00 being compensation for the loss of 24 months salary in lieu of notice;

(b) the amount of $21,600 being in compensation for superannuation for the notice period;

(c) the amount of $291,600.00 being compensation for future economic loss; and

(d) an amount of $150,000.00 by way of compensation for the pain, suffering and humiliation caused to the applicant by the respondent. A further order was sought for interest on the above amounts plus the costs of the proceedings.

8 The jurisdiction of or power vested in the Court to deal with unfair contracts, and on which the applicant relied, is contained in Pt 9 - Unfair contracts of Ch 2 of the State Act which, relevantly for present purposes, ss 105 and 106 therein provide : 105 Definitions

contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument.

(c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or

(d) that is designed to, or does, avoid the provisions of an industrial instrument.

106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in an industry if the Commission finds that the contract is an unfair contract.

(2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.

(3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.

(4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.

(5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.

9 The provisions of the Commonwealth Act relied upon by the respondent to establish constitutional inconsistency, so as to be paramount and to make inoperative the relevant provisions of the State Act, are contained in Pt V - Employees, as inserted by s 8(1) of the Broadcasting Legislation Amendment Act 1988 (Cth), as follows : Staff of Corporation

32. (1) The Corporation may engage such employees as are necessary for the performance of its functions and the exercise of its powers.

(2) The terms and conditions of employment shall be determined by the Corporation.

The Corporation is to achieve and maintain high standards as an employer

33. The Corporation shall endeavour to achieve and maintain high standards as an employer in relation to terms and conditions of employment, occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters. The provision of Pt V called in aid by the respondent was s 32 and, in particular, sub-s (2) thereof. For completeness, we mention that the functions of the respondent are prescribed by s 6(1) of the Commonwealth Act, very broadly to provide within Australia and countries outside Australia broadcasting and television services, and by s 25 thereof the general powers of the corporation are granted, including in sub-s (1)(f) and (h) respectively to "engage persons to perform services for the Corporation" and to "do anything incidental to any of its powers".

10 Section 109 of the Australian Constitution, in light of which the present argument occurred, provides : When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Where an inconsistency so arises and a State law becomes therefore invalid, it nevertheless remains a valid law of the State which enacted it but only becomes "inoperative" to the extent of the inconsistency with the Commonwealth law so that if the Commonwealth law were ever repealed then the State law would again, and without more, become operative: see Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at p 573 per Latham CJ applying Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at p 154.

11 Leading counsel for the respondent, Mr R J Buchanan QC, with whom Mr S Prince of counsel appeared, in calling for a positive answer to the question referred based his submissions on the proposition that, as he said, "there is no room for the concurrent operation of the State and Federal laws ... . The making of the primary order sought, upon which power to make the other order depends, would strike directly at the exercise of power under the Federal Act. ... the subsidiary orders would also erode the effective exercise of that power". The "primary order" so identified by senior counsel was that claimed to be available under s 106(1) of the State Act, on relevant unfairness being found, to vary the subject contract of employment by including the specified terms and conditions; the "other" or "subsidiary orders" were those claimed to be available under s 106(5) for the payment of money (as particularised earlier in relation to payment in lieu of notice, superannuation, future economic loss, pain and suffering, interest and costs), in connection with the contract so varied as was considered just in the circumstances of the case.

12 The duty of the respondent under s 32 of the Commonwealth Act was to determine the terms and conditions of the applicant's employment so that it operates, as Mr Buchanan submitted, to exclude any power otherwise within s 106 of the State Act to adjust or determine the terms and conditions upon which the applicant was employed. Therefore, a direct inconsistency as between the said s 106 and s 32 of the kind found by the High Court in Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399 clearly arose in this case; in that situation, s 109 of the Constitution results in s 106 as the law of the State becoming inoperative. Furthermore, and in any event, senior counsel relied on Williams v Hursey (1959) 103 CLR 30 at pp 68-69 for the proposition that a corporation created by a law of the Commonwealth and given defined powers meant it was beyond the power of any State to alter that position or purport to qualify those powers; any attempt to do so would involve plain inconsistency within the scope of s 109.

13 Given the mandatory nature of the duty cast on the respondent by s 32 to determine the terms and conditions of employment for its employees, a topic of dominant interest in the industrial relationship, Mr Buchanan submitted the statute disclosed thereby an implied intention that the Commonwealth Parliament had legislated exclusively on the topic, even though it may not have been dealt with completely or exhaustively, so that "a less direct but nevertheless operative and fatal inconsistency is disclosed": see Australian Broadcasting Commission per Murphy J (138 CLR at p 418). In other words, as senior counsel put - "It may not be assumed that the Federal Parliament was content that the effective determination of terms and conditions of employment under s 32 of the [Commonwealth] Act might fluctuate according to the legislative policies, from time to time, of the various and different States".

14 The respondent's approach to the present issue was said by Mr Buchanan to be supported by a line of cases decided in this Court by single judges, namely, Harrison v Australian Meat and Live-stock Corporation [1993] NSWIRC 87 per Fisher CJ; Dawson v Telstra Corporation Ltd [1998] NSWIRComm 236 per Peterson J; McGowan v Australian Broadcasting Corporation (2001) 104 IR 244 per Peterson J; and Makler v Australian Broadcasting Corporation (2001) 104 IR 260 per Glynn J. Effectively, the applicant here was asking for the decision in those four earlier cases to be reversed. The issue was thus neither new nor novel and the pattern so established should be followed, even though it was open to the Full Bench here to decide otherwise.

15 Finally, Mr Buchanan submitted that this case was appropriate for dismissal at the outset for want of jurisdiction. It was not a point of pleading so as to be dependent upon various views of the facts but rather was "a fundamental point of jurisdiction denying any possible cause of action": see Stevenson v Barham (1977) 136 CLR 190 at p 203 per Mason and Jacobs JJ.

16 After referring to the established tests for determining constitutional inconsistency within the meaning of s 109, counsel for the applicant, the Hon Mr J W Shaw QC and Mr A R Moses of counsel, emphasised by reference to Ex parte McLean (1930) 43 CLR 472 at p 483 the observations of Dixon J, with whom Rich J agreed, that an inconsistency : ... does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particularly conduct or matter to which its attention is directed. The submission referred to the further explanation of the principle by Dixon J in Victoria v The Commonwealth (1937) 58 CLR 618 at p 630 in these terms : When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.

17 From that statement of authority, Mr Shaw submitted that the Commonwealth Act, and specifically s 32 thereof, does not evince an express or implied intention to cover the field with respect to matters, such as the present dispute involving the applicant, arising from the termination of an employee's employment. Senior counsel put it this way :

· While it may fairly be said that legislation that grants a power to regulate terms of employment gives rise to an incidental power to terminate employment, it would enlarge the scope of such a power beyond its true ambit to suggest that the presence of that power precludes the operation of other legislation enabling a dispute arising from the termination of employment to be properly considered and determined.

· The regulation of some aspects of employment matters in a Federal law (here, the "terms and conditions" of employment - not the resolution of disputes regarding termination of employment) does not lead directly to an inference that State law cannot regulate the relevant topic. Commonwealth authorities and their servants and agents may be regulated by State laws of general application. ... For that proposition, reliance was placed on the decision of the High Court in Re Residential Tenancies Tribunal of New South Wales and Henderson; ex parte Defence Housing Authority (1997) 190 CLR 410 per Brennan CJ at p 427, per Dawson, Toohey and Gaudron JJ at pp 443-444 and per McHugh J at p 460. In so stressing the true constitutional principle involved where a State law, such as s 106, is impugned because of an alleged conflict with a federal law, here s 32, Mr Shaw submitted that "unless expressly or impliedly excluded or directly inconsistent, the power described in the federal statute ... is to be exercised in accordance with State law ... . There is no presumption that State laws do not apply to Commonwealth statutory corporations". In Residential Tenancies Tribunal , as identified by Mr Shaw , the proper approach was said to be that stated by Brennan CJ (190 CLR at p 426) as requiring a consideration of "the practical operation (or substance) as well as the legal operation (or form) of an impugned law when an attack on validity is based on a constitutional privative of power". The Chief Justice added (190 CLR at p 427) : However, there is no reason why the Crown in right of the Commonwealth should not be bound by a State law of general application which governs transactions into which the Crown in right of the Commonwealth may choose to enter. The executive power of the Commonwealth, exercised by its choice to enter the transaction, is not affected merely because the incidents of the transaction are prescribed by a State law. ...

When the Crown in right of the Commonwealth enters into a transaction governed by State law, it is "bound" in the sense that the rights it acquires or the obligations it assumes by entering into the transaction are those prescribed by or pursuant to the State law. To a similar effect, in the joint judgment of Dawson, Toohey and Gaudron JJ in Residential Tenancies Tribunal (190 CLR at pp 443-444) it was emphasised that "there is nothing in the principles ... which would suggest that the Crown or its agents enjoy any special immunity from the operation of laws of general application, State or federal. Indeed, the contrary is affirmed. ... Of course, the laws of the land are not confined to the laws of the Commonwealth but include the common law and the statute law in force in each of the States."

18 Thus, so Mr Shaw developed his submissions, the strong reliance by Mr Buchanan on the decision in Australian Broadcasting Commission to establish inconsistency was to be viewed in the context as described by the High Court in its later outline of the position in Residential Tenancies Tribunal; therefore, the earlier authority was "not determinative of the issue in this matter" and , in any event, "concerned a materially different legislative and factual matrix". Mr Shaw summarised the points of distinction in this way :

· The provisions of the Broadcasting and Television Act 1942 (Cth) at issue in that case specifically vested the Commonwealth Public Service Board with the power to determine disputes arising from the termination of employment. The decision of the Federal Parliament to later remove the power of the Public Service Board to deal with such matters did not leave them at large, to be dealt with by managerial fiat.

· The history of the legislation that sets up the respondent indicates a steady rolling back of Federal provisions relating to general industrial law matters. As Gummow J pointed out in Henderson's case (1996) 190 CLR 410 at 471, the development and increased use of the statutory corporation device by the Commonwealth was intended to increase the exposure of such organisations to the general law, including State statutes, as happened in that case.

· The mere fact that the Respondent is set up by a Commonwealth statute does not render the general law inapplicable to its activities. It operates within the legal framework provided by the rules of the common law and the statutes of the State, except such rules as are excluded by relevant Federal legislation: Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399 at 402-403. The statements of the High Court in Williams v Hursey (1959) 103 CLR 30 at 68-69 suggesting that the Respondent would be immune from State legislation have been overtaken by history, for the reasons given by Gummow J in Henderson's case. Those statements referred to the Australian Broadcasting Commission, not today's Australian Broadcasting Corporation. It followed, on senior counsel's submission, that the decision in Australian Broadcasting Commission was distinguishable; therefore, reliance on it in the decisions by this Court in McGowan and Makler was misplaced so that those decisions, and the two earlier decisions of this Court in Harrison and Dawson on a similar basis, were wrong and should not be followed.

19 The focus of Mr Shaw's submissions against inconsistency in this case was on the common law contract of employment, including the employment arrangement and collateral arrangement as contemplated by the extended definition of "contract" in s 105 of the State Act, between the applicant and the respondent as the transaction under challenge and which was enforceable and otherwise subject to State law; the letter of agreement between the parties expressly provided as much. Senior counsel then made the following points - (1) An order under s 106 of the State Act providing for compensatory payments post-employment in the nature of restitution is analogous to common law damages for breach of contract and, by reason of the terms of the letter of appointment of the applicant here, such damages could be obtained from courts within the New South Wales jurisdiction. Any such order for payment would not be in direct collision with the determination made by the respondent under s 32 of the Commonwealth Act as to terms and conditions of employment but rather would be seen as a post-employment remedy and not something ordinarily dealt with as part of the terms and conditions of employment. (2) The adjudication under s 106 based upon the fairness or unfairness arising from the conduct of the parties in the operation of the contract of employment and resulting in an order for the payment of compensation for any wrongful or unfair conduct would not be in conflict with the powers of the respondent to determine employment conditions. (3) In further distinguishing this case from Australian Broadcasting Commission in terms of subject matter, and also from McGowan and Makler on the facts, there is the possibility the then Managing Director of the respondent would be joined to proceedings as a second respondent for his alleged interference in the contractual relationship in an unlawful or wrongful manner. If the relevant grounds of unfairness in that respect were made out then an order could be made under s 106 declaring the contract void and requiring the Managing Director personally to make a payment of money because of his unfair conduct: see Brown v Rezitis (1970) 127 CLR 157, Visalli v Southwell (1988) 12 NSWLR 502 per Kirby P at p 507 and Lyons v Caltex Australia Petroleum Pty Ltd [2001] NSWIRComm 11. In that situation, no such barrier from s 32 to the making of orders would exist. (4) Section 32 of the Commonwealth Act does not prevent an employee of the respondent from suing it for breach of contract of employment so that the section does not prevent orders being made under s 106 as compensation for the unfair conduct of the respondent, and which was in breach of the contract of employment, even though not permitted by its terms: see Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (2000) 49 NSWLR 551 at p 567; (2000) 99 IR 69 at p 83 per Wright J, President, Walton J, Vice-President and Hungerford J. (5) It had not been demonstrated by the respondent that there was no potential for properly framed orders to be made under s 106 which would not be inconsistent with s 32 of the Commonwealth Act. The subject matter of the applicant's claim involves complex statutory interpretations and questions of law so that it is clearly inappropriate for summary dismissal on the basis of alleged jurisdictional challenge: see, for example, Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at p 92 and Inglis v Commonwealth Trading Bank of Australia [1972] 20 FLR 30. (6) The State law in s 106 operates concurrently with the federal law in s 32 of the Commonwealth Act. Accordingly, it was submitted there was no constitutional impediment by reason of s 109 precluding the Court from making any orders for relief pursuant to s 106 of the State Act.

20 We have quoted earlier the terms of s 109 of the Constitution. In Felman v Law Institute of Victoria (1997) 142 FLR 362 at p 381, the Court of Appeal (Vic) reviewed the concept of "inconsistency" for the purposes of s 109 in light of the developed High Court authorities and observed that it arose broadly in three situations: "(i) where simultaneous obedience to the law of the Commonwealth and to the law of the State is impossible; (ii) where the law of the State takes away or varies a right, privilege, duty, power or immunity conferred by a law of the Commonwealth (or, conversely, a law of the Commonwealth takes away or varies a right, privilege, duty, power or immunity conferred by law of the State); or (iii) where the law of a State invades a field which the law of the Commonwealth was intended to cover exhaustively". To a similar effect, a Full Bench of this Court had occasion to consider the question in Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 101 IR 66 at pp 76-77 in pars [39]-[41] and said : [39] The High Court has generally formulated three broad approaches to determine the existence of inconsistency. Inconsistency is present where it is impossible to obey both laws, for example where one law requires X and the other forbids X (see for example, R v Brisbane Licensing Court; Ex Parte Daniell (1920) 28 CLR 23) or where one law purports to confer a legal right, privilege or entitlement which the other law purports to take away or diminish: see, for example, Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151. Inconsistency may also arise where the Commonwealth law evinces a legislative intention to "cover the field" or that its law shall be all the law there is on that topic, even where there is not a direct contradiction between the two enactments, the State law will be inoperative to the extent that it seeks to operate within that field. The intention to "cover the field" may be express or implied: see, for example, Viskauskas v Niland (1983) 153 CLR 280.

[40] In Telstra Corporation Ltd v Worthing, the High Court considered whether the operation of the Commonwealth Safety, Rehabilitation and Compensation Act 1988 (Cth) was inconsistent with the operation of the Workers Compensation Act 1987 (NSW). The Court affirmed the principle in Viskauskas v Niland that inconsistency may exist under s109 although it is possible to obey both the State and Commonwealth law, and that a "direct collision" (in the words of Barwick CJ) would exist where the State law would impose a greater obligation than that provided for in the federal law (referring to Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259). The Court stated (at 76): "Thus, in Australian Mutual Provident Society v Goulden (1986) 179 CLR 388 at 398, in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question 'would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act 1995 (Cth)'. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question ... "

[41] The Court also affirmed the principles laid down by Dixon J in Victoria v The Commonwealth (1937) 58 CLR 618 that where a State law would "alter, impair or detract from the operation" of a Commonwealth law, then to that extent it is invalid, and, secondly, that if it appears from the nature of the federal enactment that it is intended to be a "complete statement of the law governing a particular matter or a set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent." We affirm the position there stated as representing our understanding of the proper approach to apply.

21 The issue for determination on this reference is whether the provisions of s 32 of the Commonwealth Act, on their proper construction, are inconsistent with s 106 of the State Act to the extent that that section purports to confer jurisdiction upon this Court to make orders in the terms sought by the applicant in relation to the alleged unfair contract of employment, including the employment arrangement or any collateral arrangement, whereby the applicant performed work for the respondent as a television presenter in the television broadcasting industry.

Analysis of the competing provisions of s 32 and s 106

22 Consistent with the approach of Brennan CJ in Residential Tenancies Tribunal (190 CLR at p 426), it is necessary first to identify the practical operation or substance of s 106 as the impugned law of the State in light of the effect thereon of s 32 as the paramount Commonwealth law.

23 On its face, s 32 is concerned only with the staffing arrangements of the respondent. By sub-s (1) thereof, the respondent is authorised to engage such employees as are necessary for the performance of its functions and the exercise of its powers - the functions are those set out in s 6 of the Commonwealth Act and relatively include as referrable to the applicant the provision of television services; and the powers are those specified in s 25(1)(f) to engage persons to perform services for it, together with the incidental powers in s 25(1)(h). There was no issue other than that the applicant was so engaged. Sub-section (2) then requires, and thereby impliedly empowers, the respondent to determine the terms and conditions of employment of employees engaged by it pursuant to sub-s (1). Mention should be made of s 33 of the Commonwealth Act which, in terms, is concerned for the respondent to achieve and maintain high standards as an employer in relation to the terms and conditions of employment so determined by it, as well as achieving such standards in relation to occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters. Apart from ss 32 and 33 appearing in Pt V - Employees of the Commonwealth Act, the statute does not contain any other provisions as to the engagement of the respondent's staff and the determination of their terms and conditions of employment. The only statutory provision impacting that situation would appear to be s 121(1) of the Workplace Relations Act 1996 (Cth) which empowers the Australian Industrial Relations Commission to make an award that is not, or may not be, consistent with a relevant law of the Commonwealth, such as Pt V of the Commonwealth Act. The important point to emphasise about the provisions of Pt V, including as to the determination of terms and conditions of employment in s 32(2) thereof, is that although there be a lack of detailed prescription the respondent is empowered to engage such employees as it considers necessary to discharge its functions and powers with a requirement on it to determine the terms and conditions of employment of such employees. That process in Commonwealth law is subject only to s 121(1) whereby an industrial award may be made inconsistent with a determination made by the respondent.

24 Section 106 of the State Act has about it all the appearances of a provision quite different in substance to that contained in Pt V of the Commonwealth Act. The section is concerned to confer power on this Court to deal with a particular aspect of the industrial relationship, albeit one of general application, namely, unfair contracts whereby a person performs work in any industry. The nature of the power so given has been the subject of much judicial attention over the years and was recently re-stated by the Full Bench in Reich v Client Server Professionals (49 NSWLR at pp 561-562; 99 IR at pp 77-78 in par [19]) as follows : Given the definitions of "contract" and "unfair contract" in s 105, the power exercisable by the Court under s 106 is to "make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract": sub-s (1). The impugned transaction (contract or arrangement, or any related condition or collateral arrangement) may be found to be unfair "at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason": sub-s (2). A declaration of avoidance or an order of variation may be made "either from the commencement of the contract or from some other time": sub-s (3). Where an order is made under the section, a further order may be made "as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case": sub-s (5). In the earlier case of Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332 at p 345; [1990] 32 IR 404 at p 414, the former Industrial Commission in Court Session ( Fisher P, Hill and Hungerford JJ) dealt with the scope of s 88F of the Industrial Arbitration Act 1940, the statutory predecessor to the present s 106 and relevantly in the same terms, to this effect : The subject matter of s 88F may be broadly characterised as dealing with the rights of a party or an interested person:

(i) to have declared void or varied any contract or arrangement (whereby work is performed in an industry) which is unfair, harsh or unconscionable, or against the public interest, or which provides to a person less remuneration than an employee would have received for performing the work in question, or is designed to or does avoid the provisions of an award or industrial agreement; and

(ii) to recover any losses connected with such contract or arrangement.

The Commission is vested with a discretion under s 88F(2) as to the making of an order for the payment of any moneys in connection with any contract or arrangement declared void or varied.

25 It is to be emphasised, therefore, that the subject matter of s 106 is directed to a contract answering the relevant description as to the performance of work which is found to be an unfair contract on the specified grounds so as to enable the Court to declare it void or to vary it and to order the payment of money for the recovery of losses connected with such avoided or varied contract. In other words, it seems clear to us, on the ground of unfairness being established the subject matter of the section essentially relates to the power to make an order as affecting the challenged contract so as to adjust its terms to remedy the unfairness found. It need only be added, by reason of sub-s (2) of s 106, that a contract may be found as unfair at the time it was entered into or that it subsequently became unfair because of any conduct of the parties, any variation of the contract or any other reason.

26 Having in mind the subject matter so identified, the legal operation or form of s 106, again adopting the analysis of Brennan CJ in Residential Tenancies Tribunal (190 CLR at p 426) in assessing the existence of inconsistency, was comprehensively reviewed by a Full Bench of the Court in Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 at p 685; (1999) 93 IR 1 at p 35 in this way : What emerges from the above authorities, we think, is the now settled view that s 106 (as with the previous s 88F of the 1940 Act and s 275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the section is properly concerned with the fairness of the terms of a contract of employment in its various respects and, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case. ( emphasis added )

27 In summary, the subject matter of s 106 is the power of the Court in relation to a relevant contract, including as here a contract of employment, as being one whereby work is performed in any industry. The operation of the section on the ground of unfairness being found is to declare the subject contract void or to vary it and to make an order for the payment of money in connection with the contract so declared void or varied. Howsoever one views s 106, either in substance or in form, it is clear that an inherent and fundamental aspect is the contract itself as to its terms and conditions, including any adjustment thereof. The payment of money in connection with the contract so declared void or varied is dependent upon such a declaration being made: see Tana v Baxter (1986) 160 CLR 572 at p 578 and BNY Australia Ltd v James (1992) 26 NSWLR 57 at pp 83, 95; [1992] 40 IR 1 at pp 25, 38. Also, any order for the payment of money is to be one with a necessary connection with the contract: see Brown v Rezitis (127 CLR at pp 166, 170). The subject matter of s 32 is the arrangement put in place for the staffing of the respondent to enable it to perform its functions and to exercise its powers. The operation or form of the section is to empower the respondent itself to engage such employees as are necessary for that purpose and to require it to determine the terms and conditions of employment for the employees so engaged. Central to s 32, therefore, are the terms and conditions of employment, or, in other words, those matters forming the contract of employment.

28 It follows, in our view, that although the competing sections are different in substance and in the way they operate, central to both is the contract of employment as to the terms and conditions of employment.

29 We commented earlier in these reasons that the respondent relied on four cases decided by single judges of this Court in which the issue of constitutional inconsistency arose in similar circumstances to the present; the applicant submitted the decisions were either wrong or distinguishable. Although, of course, those decisions cannot be decisive of the present issue, they are nevertheless in point and must be given weight in our balancing of the arguments put in this case. We propose to review them as succinctly as we can.

30 In Harrison, the issue was whether s 275 of the former Industrial Relations Act 1991 (the equivalent in that statute of s 106 of the present State Act) was inconsistent by reason of s 109 of the Constitution with s 31 of the Australian Meat and Live-stock Corporation Act 1977 (Cth). Section 31(1) provided that the employer Meat and Live-stock Corporation may appoint such officers or engage such employees as it thought necessary and, of present importance, s 31(2) provided for the terms and conditions of service or employment of such persons to be as determined by the Corporation. Fisher CJ, in following the reasoning in Australian Broadcasting Commission, found constitutional inconsistency between s 275 and s 31 and said (at p 4) : The power under s 31(1) of the [ Australian Meat and Live-stock Corporation Act ] would appear to confer an exclusive power on the Corporation and to exclude any other body. The provision is within the sphere of Commonwealth law and within its ability to preserve intact the powers of the Corporation. Section 109 of the Constitution ensures that State legislation should not prejudice the Commonwealth's exercise of these powers. The power to engage employees on terms carries with it concurrently the power to continue to administer the terms of any engagement eg disengage or dismiss employees on terms. Those terms are derived exclusively from a Commonwealth statute while s 275 of the Industrial Relations Act 1991 provides for declarations which would necessarily conflict with aspects of the engagement or termination of the engagement or of the terms of the contract of employment itself which would appear to create a direct conflict.

31 Dawson concerned an alleged inconsistency between s 106 of the State Act and s 85 of the Australian Telecommunications Corporation Act 1989 (Cth). Section 85 empowered Telecom (as meaning the Australian Telecommunications Corporation) to "engage such employees as are necessary for the performance of its functions" (sub-s (1)) and provided further that "the terms and conditions of employment shall be as determined by Telecom" (sub-s (2)). After citing from the authority of Australian Broadcasting Commission, Peterson J found no relevant distinction between that case and that before his Honour and added (at p 8) that "any order made with respect to the merits of the s 106 claim would purport to create a term or condition of employment which would be directly inconsistent with the power conferred on the employer by s 85, for, I think, exactly the reasons an inconsistency was found in the ABC Case". Significantly, his Honour rejected a submission that even if no order could be made under s 106 in relation to the capacity to declare void or vary the contract and to order the payment of money that it would be open to make a finding of unfairness; in doing so, Peterson J said (at p 9) : The substantive power conferred by s 106 lies in sub-s (1) which empowers the Commission in Court Session to declare a contract wholly or partly void or vary the contract ab initio or from some other time if it is found to be unfair in the relevant defined sense. Section 106(2) deals with the circumstances by which the Commission may find the contract to be unfair. That provision is facilitative but does not denigrate from the operative provisions of s 106(1) which provides the purpose for which a finding of unfairness will be made. In my view, in this respect as well, the position is very similar to that found in the South Australian Court of Appeal, namely that the purpose of a search for a finding of unfairness is to ground the relevant remedial powers and is not a remedy in itself.

32 Peterson J in McGowan was required to revisit the issue but there in a statutory context more directly related to the present case where an application for relief under s 106 to vary a contract of employment made with the Australian Broadcasting Corporation (also the present respondent) was said to be constitutionally inconsistent with s 32 of the Commonwealth Act so as to be invalid by reason of s 109 of the Constitution. His Honour referred (104 IR at pp 256-257 in pars [50]-[52]) to his earlier judgment in Dawson and to the patent similarity between s 85(2) there and s 32(2) of the Commonwealth Act. Then, after reviewing the decision in Dawson by reference to Australian Broadcasting Commission, his Honour found (104 IR at p 258 in pars [56]-[57]) "the conclusion is inevitable that aspects of the relief sought would raise a direct inconsistency with the power exercised pursuant to s 32 of the ABC Act" on the basis : ... that the authorities are clear that an attempt to invoke the Commission's jurisdiction to vary a contract which constitutes a determination of the kind provided for by s 32 of the ABC Act directly impinges upon and is inconsistent with a law of the Commonwealth: see Dawson . Those parts of the relief sought in these proceedings which seek to amend the contractual terms and so the obligations arising under the contract of employment, I consider must be viewed as beyond jurisdiction. An instructive feature of the reasoning of Peterson J in McGowan was his Honour's consideration of the question whether such a contract which may not be varied under s 106 may nevertheless be found relevantly unfair because of the conduct of a party. Here, of course, the applicant made a similar submission as to the implications of wrongful conduct by the respondent through its managing director so as to support an order for the payment of money. In disallowing such a submission, Peterson J stated (104 IR at pp 258-259 in pars [59]-[60]) : [59] This question involves the issue whether there is any room left for s 106 to operate not in relation to an amendment of the terms of employment but solely in relation to the alleged repudiatory conduct of the ABC and other consequential matters such as compensation for loss of opportunity, disappointment, distress, frustration, humiliation and upset. The cases in the line of authority referred to in the paragraphs preceding ... were decided prior to the amendment to s 106(2) prescribing that a contract (as defined) may become unfair by conduct. ...

... should the evidence establish repudiation, as it appears to do on its face in this uncontested evidentiary stage, the case would arguably come within the scope of what I might call "conduct unfairness".

[60] However, as I understand s 106, there remains an obstacle which must defeat the summons. That is, by s 106(5), the power to make an order for the payment of money depends upon an underpinning order which affects "any contract declared wholly or partly void, or varied ... ". If the Court is unable, as the result of the constitutional protection afforded to a determination of the ABC, to make an order voiding in whole or in part or varying the contract, no order for a money payment can be made ... Accordingly, conduct unfairness can, in a case such as this, give rise to no remedy. In the result, his Honour held that no order could be made under s 106 in the substantive proceedings which was within jurisdiction and, so, the claims were dismissed.

33 Again, in Makler, Glynn J was called upon to consider this same issue of constitutional inconsistency in a claim for relief under s 106 of the State Act by reason of the provisions of s 32 of the present Commonwealth Act in relation to a journalist employed by the respondent to perform work in the radio and television broadcasting industry. The only difference in that case was, and although a claim was made for a finding of unfairness in relation to the contract of employment and for an order appropriately varying the contract, no monetary order was sought under s 106(5). In following the conclusions of Peterson J in McGowan, Glynn J said (104 IR at p 267 in par [46]) : Section 32(2) of the ABC Act states that "the terms and conditions of employment shall be determined by the Corporation". No limitation is placed on that power, nor is there anything in the way that it is expressed that would suggest it did not necessarily apply to every aspect of conditions of employment, that being a contention of the applicant.

34 In view of the reference in the present case to the decision of the High Court in Australian Broadcasting Commission and its concern with the present Commonwealth Act, albeit referrable to the former Australian Broadcasting Commission and with somewhat different statutory provisions, it is necessary to review the reasoning of their Honours in the High Court. There, constitutional inconsistency was found between s 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA), in relation to the power of the Industrial Court to make certain orders relieving the unfair dismissal of a temporary employee, and the then provisions of s 43(2) and (6) of the Broadcasting and Television Act 1942 (Cth). So that one may understand the present argument in relation to s 32, as inserted into the Commonwealth Act in 1988, in light of the provisions of s 43 as they then stood and as considered by the High Court, it is necessary to have in mind the terms of those earlier provisions. Section 43(2) provided that the Australian Broadcasting Commission shall appoint such officers and engage such temporary employees as it thought necessary. Section 43(6) provided : Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board. The effective correspondence and similarity between those two sub-sections and respectively sub-s (1) and sub-s (2) of s 32 of the Commonwealth Act for present purposes will be obvious.

35 Section 15(1)(e) of the State statute there empowered the Industrial Court to hear and determine any question whether the dismissal from employment of an employee was harsh, unjust or unreasonable and, if so found, the discretionary power to direct the re-employment of the dismissed employee on terms not less favourable than if he had not been dismissed; a discretionary power was then vested in the Industrial Court to order the payment to the employee of the wages which would have been received had dismissal not occurred. The five members constituting the High Court (Barwick CJ, Gibbs, Stephen, Mason and Murphy JJ) each gave separate judgments but with the common conclusion that s 15(1)(e) was inconsistent with the provisions of the Commonwealth law and to that extent invalid by reason of s 109 of the Constitution. In that respect, however, the inconsistency so found, as will later appear, was in the nature of either direct inconsistency (per Gibbs J and Stephen J) or indirect, that is "cover the field", inconsistency (per Barwick CJ, Mason J and Murphy J, and, in part, per Stephen J). This distinction in the nature of the inconsistency existing may have some significance in endeavouring to contrast and apply other High Court authorities referred to in the argument before us by Mr Shaw, as cited earlier, and having in mind also that the thrust of the argument put by Mr Buchanan relied upon direct inconsistency even though the terms of s 32 of the Commonwealth Act lacked a detailed prescription and were cast in general terms. We will return to this aspect.

36 After stating the competing statutory provisions, Mason J (with whom Barwick CJ agreed) relevantly concluded (138 CLR at p 415) that the provisions of the Commonwealth statute "in their totality ... constitute a comprehensive and exclusive code regulating the appointment, termination of appointment, promotion, transfer, retirement and dismissal of officers in the service of the Commission". Importantly, his Honour then added that it was for the Commission "to determine the terms and conditions of appointment (with the approval of the Public Service Board)". In viewing the respective provisions as involving no direct conflict, Mason J considered (138 CLR at p 416) that "inconsistency may still emerge if it appears that the provisions of [the Commonwealth law] sufficiently manifest an intention to cover the field of appointment and dismissal of temporary employees to the exclusion of any State law on the topic". His Honour then reasoned (138 CLR at pp 416-417) : The terms of appointment are expressed by s 43(6) to be "such as are determined by the Commission with the approval of the Public Service Board", a provision which would not stand easily alongside a jurisdiction or authority in any other body to reinstate a temporary employee. And s 42 preserves the operation of awards made by the Conciliation and Arbitration Court and of determinations made by the Public Service Arbitrator, but nothing else. These provisions indicate to my mind that the Commission's power to appoint and to terminate the services of temporary employees was intended to be exclusive and unqualified except to the extent that the terms of appointment must have the approval of the Public Service Board and that the employment of temporary employees is subject to the operation of the awards and determinations referred to in s 42.

... The absence of detailed provisions applying to them is not an indication that it is contemplated that other laws will apply to them, but rather that the employer has an unqualified authority to make decisions affecting their employment and the termination of their services.

... I am of the opinion that [the Commonwealth law] is a comprehensive and exclusive code, that it covers the entire field of appointment and termination of the services of temporary employees of the Commission, that s 15(1)(e) of the South Australian Act, if it be construed so as to empower the Industrial Court to make an order for reinstatement against the Commission, is an inconsistent law and is inoperative.

37 To a similar effect, Murphy J concluded as follows (138 CLR at pp 418, 420) : The resolution of the inconsistency question does not require a detailed analysis of the provisions of the Federal and State Acts because it does not depend on collision (direct conflict) between specific provisions of the two Acts.

Although s 109 operates directly, the determination of inconsistency requires conclusions on the intentions of the two laws. ...

Where the federal law is on a topic of dominant federal interest, an intention to legislate exclusively (if not expressed) will generally be implied. The industrial relations of Commonwealth agencies and instrumentalities (particularly bodies operating nationwide) are of dominant federal interest. The Parliament has not dealt with these relations completely or exhaustively, but it would be contrary to the general object of the laws establishing the bodies if the industrial relations could be regulated (perhaps differently in various States) by State laws.

38 Gibbs J, on the other hand, preferred to approach the issue of inconsistency in direct terms. His Honour said (138 CLR at pp 402-404) : By s 43(6) the terms and conditions of employment of temporary employees are such as are determined by the Commission with the approval of the Public Service Board. But if the Industrial Court makes an order under s 15(1)(e), it may direct that the employee be re-employed on terms that are not less favourable to the employee than if he had not been dismissed from his employment. In other words the Industrial Court, and not the Commission with the approval of the Public Service Board, determines the conditions of employment of a temporary employee who is engaged pursuant to a direction of the Industrial Court given under s 15(1)(e). Here again is inconsistency: the Commonwealth Act shows that the terms and conditions are to be determined by the Commission with the approval of the Board, but the State Act allows the Industrial Court to determine the terms and conditions.

... They (the Full Court below) held, in effect, that s 15(1)(e) is part of the general law regulating the terms and conditions of employment of employees, either because the provisions of that paragraph can be interpreted "as superadding a statutory adjunct to a contract of employment within its terms" or because it creates a quasi-contractual right which, as part of the ordinary civil law of the State, is enforceable against the Commission under federal legislation excludes it. With all respect, this is to give to the provisions of s 15(1)(e) a character which in truth they do not bear. Those provisions do not require a new term to be implied in every contract of employment. They do not give a quasi-contractual right to every employee. They confer jurisdiction and power upon the Industrial Court to make orders of the kind therein described. ... In other words, s 15(1)(e) is not a part of the State law regarding contracts of employment upon which s 46 is cumulative or supplementary, but (on the construction assumed) deals with the engagement of employees and the determination of the conditions of their employment in a manner inconsistently with s 46.

... The question remains whether s 15(1)(e) enables the Industrial Court to make a declaration that a dismissal was harsh, unjust or unreasonable without proceeding to direct the re-employment of the employee concerned, and if so whether its provisions could have a partial application to temporary employees of the Commission which was not inconsistent with the Broadcasting and Television Act . ... However it seems to me clear that the provisions of s 15(1)(e) cannot be severed so as to authorise the Industrial Court to make a declaration in a case in which it would have no power to make a substantive direction or order of the kind referred to in the section. The power of the Court to direct re-employment exists only if it finds that the dismissal was harsh, unjust or unreasonable. The only purpose of making a finding that the dismissal was harsh, unjust or unreasonable is to provide a foundation for the exercise of the discretion as to whether or not the Industrial Court should direct the employer to re-employ the employee or order that the employee should be paid a sum equal to the wages he would have received, although the Court, having made the necessary finding, may in the exercise of its discretion decline to make a direction or order. If the Court would have no power to direct the re-employment of the employee notwithstanding that it found that his dismissal was harsh, unjust or unreasonable, it has no power to consider whether his dismissal was of that nature.

39 Consistent with the approach of Gibbs J, Stephen J commented (138 CLR at pp 407-410) : I go first to the interaction of sub-s (6) of s 43 with the State Act. That sub-section leaves to the determination of the Commission, subject only to Public Service Board approval, the terms and conditions of employment of such temporary employees as the Commission may appoint. Then s 15(1)(e) of the State Act does three things. First, it confers jurisdiction upon the Industrial Court to hear and determine the question whether a dismissal was harsh, unjust or unreasonable. Secondly, it confers upon the Industrial Court a discretionary power, should it think fit, to direct the re-employment of the dismissed employee in his former position on terms that are not less favourable than if he had not been dismissed. Thirdly, it confers a further discretionary power of ordering payment of the wages which the former employee would have received had he remained employed in the interim.

It is only the second of these three provisions of s 15(1)(e) that gives rise to direct inconsistency. To give power to the Court to direct the Commission to re-employ a dismissed employee on specified terms, terms no less favourable than had he not been dismissed, is necessarily to impair the power conferred on the Commission by sub-s (6) of s 43 to determine the terms and conditions of employment of its temporary employees. No longer is the Commission able to determine for itself, as the Commonwealth legislation has intended that it should, what shall be those terms and conditions in the case of temporary employees. Instead, in the case of an employee obtaining such an order from the Industrial Court, the Commission's hands are to be tied and it must, when re-employing the employee, accord him terms and conditions which will not be of its own choice. ... When the Commission is engaged in the employment of staff s 43(6) requires that it should be able to determine for itself what are to be the terms and conditions of employment. This requirement applies equally to staff wholly new to its employ and to former staff which it chooses to re-employ. In seeking to deprive the Commission of this power s 15(1)(e) manifests a direct inconsistency with s 43(6).

Sub-section (6) is a common form provision found in many Commonwealth Acts establishing statutory authorities possessing their own staffs. I would regard it as contemplating no particular act of determination of some standard terms and conditions for the employment of temporary employees of the Commission. On the contrary its effect, when read together with sub-section (2), is, I think, rather to invest the Commission with unfettered power to engage such temporary employees as it thinks necessary, engaging them upon such terms and conditions as (subject to Public Service Board approval) it thinks fit. ... Each time such an employee has been engaged there has been an exercise of the powers conferred by these two sub-sections; it has required no particular exercise of these powers to give to sub-s (6) its full effect. ... The two sub-sections, so long as they remain unrepealed, are effective within the sphere of Commonwealth law to preserve intact these exclusive powers of the Commission. In our federal polity they would, however, be at risk from State legislation were it not for s 109 of the Constitution; that section ensures that State legislation shall not prejudice the Commission's exercise of these powers with which the Commonwealth Parliament has invested it.

The instances of direct inconsistency referred to above call for little citation of authority to support the conclusion that they fall within s 109 of the Constitution. ...

In the present case I have confined myself to date to the direct inconsistency which, to my mind, clearly emerges from an examination of the two sets of laws. ... His Honour, however, in relying on direct inconsistency to strike down the power of the Industrial Court as to the identified second and third discretionary powers, turned to the concept of indirect inconsistency to strike down the power to determine whether or not the dismissal was harsh, unjust or unreasonable. His Honour in that respect concluded (138 CLR at p 411) : ... the declaratory part of par (e), although not directly inconsistent with Commonwealth legislation, is indirectly inconsistent with it since it enters upon a field which the Commonwealth legislation may be seen to have exclusively occupied.

The terms of s 43(2) and (6) do to my mind disclose a legislative intent that the subject matter comprising the engagement of temporary employees of the Commission and their terms and conditions of employment should be exclusively within the province of the Commonwealth Act. ... If so, a power to pronounce upon the harshness etc of a dismissal, although concerned with different criteria from that involved in whether a dismissal be wrongful in the sense of being in breach of contract, should, I think, nevertheless be regarded as an intrusion into the field which I have indicated as having been occupied exclusively by the Commonwealth Act. I accordingly conclude that no part of s 15(1)(e) of the State Act may be invoked against the Commission.

40 It may be thought that the absence of detailed provisions in the Commonwealth statute considered in Australian Broadcasting Commission, and similarly in the Commonwealth Act here, would militate against inconsistency being found; certainly in the case of a finding of direct inconsistency but also in applying a "cover the field" approach because in fact the field had not been covered. For instance, in O'Sullivan v Noarlunga Meat (1954) 92 CLR 565, it was held by Dixon CJ, Fullagar and Kitto JJ that provisions of the regulations made under a Commonwealth statute, being as Fullagar J said (92 CLR at p 591) to be "an extremely elaborate and detailed set of requirements which must be complied with", covered the field of the regulation of premises for the slaughtering of livestock for export and so made constitutionally invalid the provisions of a State statute dealing with the same subject matter and even though there was no direct inconsistency because it was possible for both laws to be obeyed. This apparent conflict in determining constitutional inconsistency where the Commonwealth law displays a lack of detail was the subject of comment in Castan and Joseph Federal Constitutional Law: A Contemporary View (Lawbook Co, 2001) where the learned authors commented as follows (in par 6.3.2 at p 178) : In T A Robinson v Haylor (1957) 97 CLR 177, a Commonwealth award made under the Conciliation and Arbitration Act 1904 (Cth) regulated employment in the footwear industry. It made no provision for workers' entitlements to long service leave. The Long Service Leave Act 1955 (NSW) gave workers an entitlement to paid leave after ten years of employment. The High Court found that the omission of any provision for long service leave demonstrated that the Commonwealth had not intended to oust any relevant state provisions regarding matters such as long service leave entitlements. Similarly, in Ansett v Wardley (1980) 142 CLR 237, the incompleteness of the federal law was found by the majority to indicate a lack of intention to cover the field (see Stephen J at 247-248). Thus, Robinson and Ansett appear to conform to the O'Sullivan requirement of a sufficient level of detail in the Commonwealth Act before an intention to exclude State law will be found. The authors then contrasted the High Court's decision in Australian Broadcasting Commission and commented that the rationale appeared to be as explained by Mason J in that case (138 CLR at p 417), namely : The absence of detailed provisions applying to them is not an indication that it is contemplated that other laws will apply to them, but rather that the employer has an unqualified authority to make decisions affecting their employment and the termination of their services.

41 The approach of Mason J in Australian Broadcasting Commission was affirmed unanimously by the High Court (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) in Dao v Australian Postal Commission (1987) 162 CLR 317. In that case, an intention to cover the field was found in relation to the employment of postal workers under the Postal Services Act 1975 (Cth) on terms and conditions as the Australian Postal Commission determined so as to exclude from operative effect the provisions of the Anti-Discrimination Act 1977 (NSW) which made it unlawful for an employer to discriminate against employees on the grounds of their sex. It is to be noted that s 46(1) of the Commonwealth statute there, like s 32(2) of the Commonwealth Act here, was in general terms by providing that "officers and employees hold office on such respective terms and conditions as the Commission determines". In applying the decision in Australian Broadcasting Commission, the High Court in Dao said (162 CLR at p 338) : Mason J, with whose judgment Barwick CJ agreed, identified an area of direct inconsistency between the State law and the provisions of the Broadcasting and Television Act which, as his Honour demonstrated, constituted a comprehensive and exclusive code regulating the appointment, promotion, transfer, retirement and dismissal of officers in the service of the Commission ((1977) 138 CLR at pp 415-416). His Honour acknowledged that the provisions of the Act dealing with temporary employees were less detailed and less comprehensive than those dealing with officers and that there was consequently no direct conflict with the provisions of the State law. However, his Honour nevertheless discerned an intention to cover the field of appointment and dismissal of temporary employees to the exclusion of any State law on the topic.

Conclusions 42 The difficulty in identifying the legislative intention in the enactment of s 32 of the Commonwealth Act in terms of constitutional inconsistency, we have to say, has much troubled us in this case. The arguments of Mr Shaw, on their face, by reference to the absence of detailed provisions in the Commonwealth Act and the consequences of that against a finding of constitutional inconsistency, as supported by cases such as T A Robinson and Sons Pty Ltd v Haylor (1957) 97 CLR 177 at p 183 and Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, have some attraction. Indeed, and as Mr Shaw emphasised from the identified passages in the separate judgments of the High Court in Residential Tenancies Tribunal (190 CLR at pp 427, 443-444, 460), State laws of general application, such as s 106, may regulate the employment arrangements made by Commonwealth authorities, such as the respondent here; see also Taudevin v Egis Consulting Australia Pty Ltd and the Commonwealth (No 1) [2001] NSWIRComm 340. Nevertheless, we are unable, contrary to Mr Shaw's submissions, to relevantly distinguish this case from the reasoning in Australian Broadcasting Commission and in Dao. The decisions in those cases are clear and intractable; they are binding on us and we therefore must follow them. The decisions in Harrison, Dawson, McGowan and Makler by following Australian Broadcasting Commission were correctly decided.

43 It should be explained, in light of Mr Shaw's submissions in seeking to distinguish Australian Broadcasting Commission by its different subject matter and statutory provisions, that we see no relevant distinction between s 15(1)(e) of the South Australian statute and s 106 of the State Act here. The former, it is true, was concerned with unfair dismissals and the latter with unfair contracts, but whilst the subject matter and purposes may differ it is plain that the process in giving effect to the respective schemes is conceptually similar - first, a finding of unfairness; second, a declaration or order which affects the terms of the employment; and, third, an order for the payment of money in connection with the second step of the process. Also, the effective similarity in terms between the power granted to the Australian Broadcasting Commission by s 43(2) and (6) in relation to the engagement and determination of the terms and conditions of employment for temporary employees and that granted to the respondent here by s 32 of the Commonwealth Act is obvious. The reasoning of the High Court in Australian Broadcasting Commission is, therefore, directly in point. And so too, we would conclude, the circumstances in Dao have conceptual similarity to the case before us.

44 Any order which may be made under s 106, particularly in the terms of the variations sought by the applicant, would affect the terms and conditions of employment of the applicant by the respondent. That aspect is a topic covered by s 32 of the Commonwealth Act by requiring the respondent to determine the terms and conditions of employment; such a determination is within the exclusive power of the respondent, subject only to an inconsistent award being made by the Australian Industrial Relations Commission under other Commonwealth law but not, we apprehend, under a State law in the form of s 106.

45 For the above reasons, we conclude that the provisions of s 106 of the State Act have no application to the respondent because they are inconsistent, as that term is used in s 109 of the Constitution, with s 32 of the Commonwealth Act so as to be inoperative. Thus, jurisdiction must be denied to this Court to grant the relief sought by the applicant.

46 Accordingly, we answer the question referred in the affirmative and remit the matter to Walton J, Vice-President to determine the respondent's motion in light of the answer so given and the opinion expressed in these reasons. We consider the costs of the reference should be costs in the motion proceedings to be dealt with by the Vice-President after the parties have been heard. We so order. _______________

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