CFMEU (NSW) (o-b of Hemsworth) v Brolrik Pty Ltd t-as Botany Cranes & Forklift Services

PARTIES: RESPONDENT: Brolrik Pty Ltd t/as Botany Cranes & Forklift Services

INTERVENOR: Minister for Industrial Relations

CORAM: Wright J President; Walton J Vice-President; Boland J

CATCHWORDS: Jurisdiction - Notice of motion - Victimisation - Relief from victimisation under s 213 of the Industrial Relations Act 1996 - Whether s 213 is rendered invalid by s16(1) of the Workplace Relations Act 1996 (Cth) - Whether inconsistency under s 109 of Australian Constitution - Subsections 16(2)(c) and (3)(c) of the WR Act - Whether ss 213 and 210(1)(j) of the IR Act are saved by the exceptions contained within ss 16(2) and (3) as law which "deals with" "non -excluded matters"; namely, occupational health and safety in s 16(3)(c) - Subsection 16(2)(b) - Whether passing of a regulation relevant to legislative intention - Motion dismissed.

Australian Constitution s 109 Corporations Act 2001 (Cth) Fair Trading Amendment (Employment Placement Services) Act 2002 Industrial Relations Act 1991 s 481 Industrial Relations Act 1996 ss 10, 11, 167, 210, 213 LEGISLATION CITED: Long Service Leave Act 1955 Occupational Health and Safety Act 1983 s 26 Occupational Health and Safety Act 2000 ss 3, 23, 23A Rail Safety Act 2002 Transport Legislation Amendment (Safety and Reliability) Act 2003 Workplace Relations Act 1996 (Cth) ss 4, 5, 6, 16

Barry v Australian Broadcasting Corporation (2002) 112 IR 33 Bayside Council v Telstra Corporation Ltd (2004) 78 ALJR 704 Carter v Egg and Egg and Pulp Marketing Board (Vic) (1942) 66 CLR 557 Endeavour Coal & Ors v CFMEU (2007) 161 IR 96 Ex parte McLean (1930) 43 CLR 472 CASES CITED: New South Wales & Ors v Commonwealth (2006) 81 ALJR 34 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 South Australia v Commonwealth (1942) 65 CLR 373 Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2), Re (2006) 158 IR 17 Tristar Steering and Suspension Ltd & Anor v Industrial Relations Commission of NSW & Anor (2007) 158 FCR 104

APPELLANT (RESPONDENT ON NOTICE OF MOTION) Mr D Shoebridge of counsel Construction, Forestry, Mining and Energy Union (NSW Branch)

RESPONDENT (APPLICANT ON NOTICE OF MOTION) LEGAL REPRESENTATIVES: Mr A Moses of counsel Deacons Lawyers

INTERVENOR Mr A Searle of counsel Crown Solicitors

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Friday 21 September 2007

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES) (ON BEHALF OF BARRY HEMSWORTH) v BROLRIK PTY LIMITED T/AS BOTANY CRANES & FORKLIFT SERVICES

Application by Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of its member Barry Hemsworth) for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

1 The applicant, the Construction, Forestry, Mining and Energy Union (New South Wales Branch) ("CFMEU"), on behalf of its member Barry Hemsworth, commenced proceedings on 15 September 2006 seeking relief from victimisation under s 213 of the Industrial Relations Act 1996 ("the Act") arising from the termination, on 6 September 2006, of Mr Hemsworth's employment with the respondent, Brolrik Pty Ltd t/as Botany Cranes and Forklift Services.

2 On 6 December 2006, the respondent filed a notice of motion raising a jurisdictional challenge to the application for relief, based on the contention that the Commission had no jurisdiction to hear the application under ss 210 and 213, as the respondent was a constitutional corporation, and, thereby, s 16(1) of the Workplace Relations Act 1996 (Cth) ("WR Act") operated to remove the Commission's jurisdiction in respect to the respondent. Factual Background

3 The respondent is a corporation incorporated under the Corporations Act 2001 (Cth) and carries on a commercial crane hiring business of sufficient scale. On that basis, it was rightly accepted by the applicant and the Minister for Industrial Relations (who intervened pursuant to s 167 of the Act) that the respondent is a constitutional corporation, and is, therefore, an "employer" as defined in s 5(1) of the WR Act.

4 The respondent accepted that, for the purposes of the resolution of the issue for adjudication, the applicant's chronology of events should serve as a factual framework for the adjudication of the issues in the matter. The key aspects of the chronology for the purposes of the present issue are as follows: (a) The applicant, Mr Hemsworth, commenced employment with the respondent as crane driver in February 1996. (b) In early 2006, the applicant instituted a Job Site Risk Analysis ("JSA") as an occupational health and safety risk assessment process, and then raised concerns about the JSA process with the respondent's OHS&E Manager, Managing Director, and with representatives within the CFMEU. (c) Following further consultations (with involvement from the CFMEU) about the applicant's concerns with both staff and senior management at the respondent corporation, the applicant was given two written warnings, on 16 June and 19 June 2006, based on his failure to complete relevant JSA forms. (d) Having requested that he be excused from attending a WorkCover meeting at the respondent corporation on the basis of his concerns about workplace safety, the applicant was advised orally on 30 August 2006 that he was dismissed. (e) On 5 September 2006, the CFMEU wrote to the respondent, outlining continuing concerns relating to the JSA process. The applicant was then formally dismissed, in writing, by the respondent on 6 September 2006. (f) On 15 September 2006, the CFMEU lodged the application for relief from victimisation under s 210(1)(j) of the Act. 5 All of the parties, including the respondent, accepted that, for the purposes of the resolution of the present issue, the applicant's substantive claim should be taken at its highest. Accordingly, the Commission has determined this matter on the basis that Mr Hemsworth's claim concerns victimisation by the respondent, as a result of the termination of his employment following a complaint about a workplace matter which he considered was "not safe or a risk to health", as contemplated by s 210(1)(j) of the Act.

6 The issue requiring adjudication in this matter is whether the Commission's power to provide relief from victimisation under ss 210(1)(j) and 213 of the Act is excluded by operation of s 16(1) of the WR Act. 7 The respondent submitted s 16(1) has that effect. Its contention, in support thereof, may be distilled to three propositions (which we will discuss at greater length later in this decision):

(a) The WR Act excludes the operation of the Act, on the basis that the State legislation is inconsistent with (as contemplated by s 109 of the Australian Constitution ) the Federal legislation. Further, there is nothing in the WR Act to indicate that the operation of the relevant provisions of the State legislation is to be preserved.

(b) There is no Commonwealth regulation prescribed pursuant to s 16(2)(b) that saves s 213 of the Act, although the Commonwealth has passed a regulation with respect to analogous provisions of industrial legislation in Queensland so as to enable their concurrent operation with the WR Act. This indicates clearly that the Commonwealth did not intend to save s 213 of the Act.

(c) Section 16(1) excludes State industrial laws except those to which s 16(2) applies. Whilst s 16(2)(c) provides that s 16(1) does not apply to a law of a State or Territory so far as the law deals with "non-excluded matters" as set out in s 16(3), including "occupational health and safety" (s 16(3)(c)), ss 210 and 213 cannot be characterised as laws with respect to occupational health and safety, and are thus excluded pursuant to s 16(1).

Decisions in the Intervening Period 8 At the time of the hearing of this matter, the operation of s 16 of the WR Act had been considered by a Full Bench of the Commission in Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) (2006) 158 IR 17 ("Re Transport Industry"), albeit in the context of an application for an award under ss 10 and 11 of the Industrial Relations Act. The parties referred to that decision in their submissions. 9 However, after submissions were received, the Industrial Court of New South Wales delivered judgment in Endeavour Coal and others v CFMEU (2007) 161 IR 96 ("Endeavour Coal"), which also considered the operation of s 16 of the WR Act (in that case, by reference to an application for a long service leave award). 10 We also note that, since reserving our decision, a judgment of the Federal Court of Australia was delivered in Tristar Steering and Suspension Ltd and Another v Industrial Relations Commission of New South Wales and Another (2007) 158 FCR 104 ("Tristar"). We shall refer to that judgment later, although the limited discussion of sub-sections 16(2) or (3) in it is obiter dicta. 11 Both Re Transport Industry and Endeavour Coal are, in our view, relevant to our decision in this matter and no submission has been made in these proceedings which has convinced us that they should not be followed. Relevant Statutory Provisions

12 The respondent's motion turns on the operation of s 16 of the WR Act, which 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.

Note: Subsection 4(1) defines applies to employment generally . 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.

Note: Part 15 (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that. "State or Territory industrial law" is defined in s 4 of the WR Act as: State or Territory industrial law means: (a) any of the following State Acts: (i) the Industrial Relations Act 1996 of New South Wales; (ii) the Industrial Relations Act 1999 of Queensland; (iii) the Industrial Relations Act 1979 of Western Australia; (iv) the Fair Work Act 1994 of South Australia; (v) the Industrial Relations Act 1984 of Tasmania; or (b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes: (i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions); (ii) providing for the determination of terms and conditions of employment; (iii) providing for the making and enforcement of agreements determining terms and conditions of employment; (iv) providing for rights and remedies connected with the termination of employment; (v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 779); or (c) an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or (d) a law that: (i) is a law of a State or Territory; and (ii) is prescribed by regulations for the purposes of this paragraph. 13 The relevant State provisions are ss 210(1)(j) and 213 of the Act, which provide: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person:

… (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000, or 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment,

(c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: ( a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought.

14 As earlier mentioned, the question squarely raised in these proceedings is whether the Commission's jurisdiction is excluded by the operation of s 16 of the WR Act, when that section is considered in its own terms and in conjunction with s 109 of the Australian Constitution. We shall deal seriatim with each of the earlier summarised contentions of the respondent in this respect:

15 The respondent raises an argument of constitutional inconsistency in written submissions, suggesting that the operation of the Act, and thus the jurisdiction of the Commission, is excluded by s 16(1) of the WR Act, as there exists a clear inconsistency (pursuant to s 109 of the Australian Constitution) between the Act and WR Act. 16 The respondent states that s 16(1) of the WR Act specifically excludes laws of a State or Territory (defined to include the "Industrial Relations Act 1996" (in s 4(1) and Schedule 1 of the WR Act)) "so far as they would otherwise apply in relation to an employee or employer" (as defined in s 6 of the WR Act). A relevant inconsistency is said to arise only where there is a "valid law of the Commonwealth and a law of the State", and, "to be valid, the federal law must be a law with respect to a subject of federal legislative power": Bayside Council v Telstra Corporation Ltd (2004) 78 ALJR 704 at 714, per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Section 16(1) has been held to be constitutionally valid by the High Court, the provision being construed as "limited to the exclusion of State and Territory laws so far as they would otherwise apply to an employee or employer, defined by reference to the heads of constitutional power referred to in paras (a) - (f) of the definition of "employer" in s 6(1)": New South Wales & Ors v Commonwealth "(NSW v Commonwealth)" (2006) 81 ALJR 34 at [359], per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

17 In terms of the relevant inconsistency, the respondent relies on s 109 of the Constitution, which provides as follows: 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.

18 The respondent also referred to the decision of the Full Bench of the Industrial Relations Commission of New South Wales in Court Session in Barry v Australian Broadcasting Corporation (2002) 112 IR 33, which sets out the circumstances in which an inconsistency between State and Federal laws is said to arise, stating that the "well-settled" principles enunciated therein, when applied to the present matter, must, it was submitted, inevitably result in the dismissal of the applicant's claim for relief. The respondent relied upon the following aspects of the judgment (at [20]):

20 We have quoted earlier the terms of s 109 of the Constitution. In Felman v Law Institute of Victoria (1997) 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 a 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 (200) 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, privelege 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 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 ....... [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.

19 The respondent contended that the exclusions in ss 16(2) and (3) as to "non-excluded matters" (including "occupational health and safety" in subsection (3)(c)) do not apply in this case so as to avoid the effect of s 16(1). We note that the respondent's submissions do not go so far as to consider how the contentions it has raised might operate if ss 16(2) and (3) were to be applicable in this instance. 20 The Minister accepted the submissions of the respondent in relation to the broad principles concerning the interpretation of s 109, and further contended that the State law will be inoperative to the extent of the inconsistency: Carter v Egg and Egg and Pulp Marketing Board (Vic) (1942) 66 CLR 557. However, the Minister submitted that ss 210 and 213 are not inconsistent with the WR Act, as these provisions fall within the exceptions to the exclusion within s 16(1), as set out in ss 16(2) and (3). The WR Act thus, through ss 16(2) and (3), evinces an intention that "non-excluded matters" (as defined) are to continue to be regulated by State and Territory laws, and, therefore, there is no inconsistency with respect to those provisions. 21 The applicant put a submission to similar effect.

22 Very similar contentions concerning inconsistency arising under s 109 in the context of s 16 of the WR Act were raised in Endeavour Coal. It was submitted in that matter that an inconsistency of the type described in s 109 existed where a federal law evinces an intention to cover a particular field of operation and the State law intrudes upon that field (Ex Parte McLean (1930) 43 CLR 472 at 483). It had further been submitted that the Commonwealth had evinced an intention, clearly expressed in s 16, to cover the field of regulation of the industrial relations of employers and employees (as defined), by excluding State or Territory laws which might otherwise impinge upon that field. Further, according to the applicants, ss 10 and 11 were said to be such laws, and were not excluded by ss 16(2) and (3) as they did not "deal with" long service leave.

23 In resolving these issues adversely to the applicant on the motion, the Court stated as follows at [58-60]: 58 The approach to, and analysis to be undertaken in, resolving an alleged inconsistency of the type covered by s 109 of the Commonwealth Constitution is well settled and has been considered by this Commission on many occasions, including most recently in Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361, Construction, Forestry, Mining and Energy Union (NSW Branch) v Newcrest Mining Ltd (2005) 139 IR 50 and by Boland J in Beattie & Ors v Commonwealth Bank of Australia [2006] NSWIRComm 238.

59 We do not consider, however, that this analysis is required to be undertaken in this instance as no question of inconsistency actually arises. The applicants asserted that an indirect inconsistency arises as s 16 of the WR Act evinces an intention to cover the field and, on that basis, the Commission's award making power is excluded by s 16(1). However, this contention does not provide a complete answer in light of the express terms of s 16. 60 As we have already mentioned, we accept that the evident purpose of s 16(1) is to establish a legislative field concerning the prescription of the rights and obligations of employees and employers (as defined) and the regulation of their workplace relations in which the WR Act is to operate to the exclusion of any State or Territory law which, subject to the exceptions in ss 16(2) and (3), intrudes upon that field: Re Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd [2007] NSWIRComm 50 (at [33]). However, this must be read in the particular context in which it appears, namely that s 16(2) expressly provides that this exclusion does not operate in all instances. It is inconceivable that s 16 should be interpreted in the manner asserted by the applicants, namely that it states an intention to cover the field of the regulation of the industrial relationships of employers and employees as defined without recognising the role ss 16(2) and (3) must play. Indeed, we agree with the respondent's contention that ss 16(2) and (3) evince an intention to exclude certain matters from the exclusive coverage of the WR Act including, relevantly, long service leave.

24 The judgment of the Full Court of the Federal Court of Australia in Tristar was delivered shortly after the judgment of the Industrial Court in Endeavour Coal. The judgment of the Federal Court did not refer to Endeavour Coal. We have reviewed the judgment in Endeavour Coal, in the light of Tristar, but have concluded that nothing in the reasoning of Tristar warrants any reconsideration of the judgment in Endeavour Coal, with which we agree. 25 In Tristar, the Federal Court considered whether there was a "cover the field" type inconsistency between s 16(1) and s 146(1)(d) of the Act (a provision setting out the Commission's power to conduct an Inquiry on any industrial or other matter at the request of the Minister), the latter provision thus being rendered invalid by s 109. The subject matter of s 146(1)(d) did not fall within the exceptions in s 16(2) and (3) and, hence, those provisions were not directly in issue.

26 In Tristar, Kiefel J concluded in that judgment that s 16(1) excluded State or Territory industrial laws, defined in s 4 of the WR Act to include the Act, in relation to an employer and an employee, as defined in ss 5 and 6 of the WR Act, in their capacity as such. Her Honour concluded that subsections 16(2) and (3) confined the Commonwealth's exclusive law making powers, although they did not alter the scope of the field so defined. These conclusions are reflected, in particular, in paragraphs [8] and [10] of her Honour's judgment as follows: 8 Subsections (2) and (3) of s 16 provide that certain State and Territory laws are not excluded. Subsection (1) is said not to apply to a law dealing with the prevention of discrimination; to a law prescribed by regulations; or a law dealing with non-excluded matters which are listed in subs (3). It is not necessary for present purposes to set them out. They include matters such as superannuation, workers' compensation and the payment of and deduction from wages and salaries. Whilst it may be that discrete parts of the State Act may be excluded by s 16(1) by these means, it was not contended by the New South Wales Minister for Industrial Relations ("the Minister") that Ch 4 or s 146 fell within these exceptions.

... 10 Section 16 may be said to mark out the field of relations between a constitutional corporation, in its capacity as employer, and the individuals, in their capacity as employees of the corporation, as the subject of the Commonwealth's exclusive law-making with the exception of the laws identified in subss (2) and (3 ). The identification of such a field is consistent with the view that s 51(xx) of the Constitution at least extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations: Re Pacific Coal Pty Ltd ; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at [83] per Gaudron J, cited with approval in New South Wales v Commonwealth 81 ALJR 34; 231 ALR 1 at [177]. The fact that subs (2) of s 16 excludes laws dealing with specific matters having a connexion with the employer and employee as defined, does not prevent a conclusion that the section intended to cover the field so identified. (Emphasis added)

27 The judgments of Gyles and Buchanan JJ are somewhat broader, but it is unlikely that they intended to establish a broader principle than that stated by Keifel J (or if they did, that it would not be a correct construction of the WR Act and the operation of s 109 of the Constitution). In any event, Buchanan J seemed to limit the field of operation of s 16(1) but made reference to the exceptions in ss 16(2) and (3). For example, he found the relevant field to be as follows (at [45]): 45 By its terms s 16 of the WR Act declares an intent that the WR Act occupy, to the exclusion of the IR Act, (subject only to the exceptions in s 16(2), (3) and (4) - which are not relevant here), the whole field of legislative activity "in relation to an employee or employer" (my emphasis) where the employer is an entity identified by s 6(1) of the WR Act, including a consitutional corporation. The words "in relation to" are broad. They are not confined to exclude only actual regulation of specific rights and obligations but anything done by or under a State or Territory industrial law. (Emphasis added) 28 We also note his Honour's observations in paragraph [46] as follows: 46 Although neither the IR Act or s 146(1) are rendered wholly invalid by the operation of s 109 of the Constitution , invalidity arises inter alia , and to the extent that, the IR Act otherwise operates as a grant of jurisdiction or power in relation to a matter within the field covered by the WR Act.

29 It is not conceivable that Gyles J intended by the following observations in paragraph [22] to refer to cases to which s 16(2) and (3) of the WR Act applied: 22 Whilst the NSW Act may not be wholly invalid, it can have no effect upon constitutional corporations concerning their relations with actual or potential employees. Indeed, the NSW Act cannot be concerned with the regulation of constitutional corporations at all. It follows that s 146(1)(d) of the NSW Act is invalid for present purposes as it authorises conduct that may affect constitutional corporations. Thus, the current inquiry has no legislative base and no capacity to affect constitutional corporations generally and, in particular, concerning the relations of such corporations with actual or potential employees.

30 Thus, whilst it is clear that the operation of a State law will be rendered invalid to the extent that that law is inconsistent with valid Commonwealth law (in this case, s 16 of the WR Act), we agree with the submissions by the Minister and applicant, and with the conclusions of the Full Bench in Endeavour Coal, that there can be no inconsistency here, of a direct or indirect nature, because there is a clear expression of intent in ss 16(2)(c) and (3)(c) to remove certain matters, including occupational health and safety, from the exclusion set out in s 16(1). 31 For the reasons set out below, we consider that ss 210(1)(j) and 213 fall directly within those legislative exceptions to the operation of s 16(1) in s 16(2)(c) and (3)(c), and, therefore, we consider that the argument by the respondent, with respect to constitutional inconsistency, must fail.

32 Where a regulation has been prescribed pursuant to s 16(2)(c) of the WR Act, a State law may operate concurrently with Commonwealth legislation, with no relevant inconsistency arising. In this respect, the respondent referred to the following comment by Mason J in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 (at 563): ... Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.

33 However, the respondent contended that the Commonwealth has not regulated to preserve the operation of s 213 in the IR Act, and, thus, has not evinced an intention that this provision would operate concurrently with the WR Act. This conclusion is apparently supported by the fact that regulations have been prescribed by the Commonwealth (pursuant to s 16(2)(b)) in relation to an analogous provision (providing for remedies in relation to victimisation in the context of occupational health and safety) in Queensland industrial legislation (see reg. 1.3, Ch 2, Pt 1, Div 2: Workplace Relations Regulations). Moreover, according to the respondent, the same arguments apply, "mutatis mutandis", to any argument that s 210 has been saved by s 16(2)(c).

34 The High Court in NSW v Commonwealth, however, considered the construction of s 16 solely in the context of constitutional validity, and the aforementioned comments cannot be taken to in some way bolster the arguments which the respondent has put forward in relation to s 16(2)(b) of the WR Act.

35 The Minister contended that the absence of a regulation made pursuant to s 16(2)(b), specifically preserving the operation of ss 210 and 213 did not suggest that those provisions are, therefore, excluded by s 16(1). It was submitted that, as the provisions within the Act fall within the exceptions in ss 16(2) and (3), there is no need for any such regulation. It was further contended that the Commonwealth Executive's decision to preserve a Queensland law which is similar to the provision in the Act by regulation "cannot determine the proper construction of the principal act, the WRA". 36 The applicant also addressed this issue, submitting that it was not appropriate to interpret the legislative intention of the Commonwealth (with respect to s 16) on the basis that a Minister had passed a regulation pursuant to s 16(2)(b) subsequent to the passing of the WR Act.

37 We consider that the submissions of the Minister and applicant in this regard are correct. To the extent that ss 210(1)(j) and 213 fall squarely within ss 16(2) and (3), there is no need for the prescription of any relevant regulation. Further, it is simply not correct, as suggested by the respondent, that s 16 ought to be construed on the basis of the exercise of delegated authority by a Minister subsequent to the introduction of the WR Act itself.

(iii) Whether ss 16(2) and (3) are laws which deal with "occupational health and safety" 38 The issue arising in this final jurisdictional contention by the respondent is whether ss 210 and 213 fall within the exceptions in s 16(2) and (3) of the WR Act.

Submissions 39 In the relatively short submission advanced by the respondent on this issue, it was contended that ss 210 and 213 cannot properly be characterised as laws "with respect to occupational health and safety", and are not, therefore, excluded from the operation of s 16(1). These laws, the respondent submitted, ought rather be characterised as provisions of a State industrial law that has been specifically excluded by s 16(1) of the WR Act (in light of the decision in the NSW v Commonwealth) and as "provisions of an inoperative law that provided industrial law remedies". 40 By contrast, the respondent submitted that there can be no doubt that the Occupational Health and Safety Act 2000 (the "OH&S Act") is an "occupational health and safety law", as contemplated by s 16(3)(c). This conclusion is consistent, it was submitted, with the "conventional approach" taken with respect to the characterisation of laws, an approach enunciated by Latham CJ in South Australia v Commonwealth (1942) 65 CLR 373 at 406-7. The respondent contended that a law ought to be characterised by reference to its legal effect, "having regard to the title, text and substantive effect" of the law.

41 The Minister submitted that the provisions in the Act fall within the exceptions contained within ss 16(2) and (3) and, thus, avoid the exclusion provided for in s 16(1). He contended that s 210(1)(j), and s 213 (to the extent that it provides for enforcement in relation to s 210(1)(j)), clearly "deals with" one of the "non-excluded matters" set out in s 16(3), namely, "occupational health and safety" (s 16(3)(c)). 42 The Minister based this argument on a number of grounds: (a) The word "matter" has been defined as being "the subject matter for determination in a legal proceeding": O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 282, per Dean , Gaudron and McHugh JJ. In this instance, the subject matter of present proceedings clearly relates to occupational health and safety, given that the phrase "occupational health and safety" refers to the securing and promotion of health, safety and welfare of people at work, and the protection of persons at a place of work, against risks to health or safety arising out of the activities of persons at work: Re Transport Industry at [152]. (b) The Minister relies upon the decision in Re Transport Industry to suggest that specific occupational health and safety legislation is not required, and that s 210(1)(j) ought to be characterised as a relevant "non-excluded matter" as all statutory provisions which deal with, or relate to, occupational health and safety can be so characterised. The Minister also refers to Re Transport Industry in support of the contention that the legislature, in s 16, has expressed an intention to protect and preserve existing laws, " or parts of laws ", that deal with occupational health and safety. Further, the Minister notes that ss 16(2) and (3) do not refer to particular, named statutes on the relevant subject matters to confine the meaning of "non-excluded matters" in the manner contended by the respondent. (c) Reference is also made to the legislative history of s 210(1)(j), with the Minister submitting that this provision originates in occupational health and safety legislation, and is directed towards the objective the OH&S Act of effective consultation in relation to health and safety in the workplace. Further, the Minister notes that there are analogous provisions within the OH&S Act, and suggests that it would be an "absurd" proposition if those provisions, which have the same objectives and legal effect as the provisions within the Act, were characterised as laws dealing with occupational health and safety, whilst the provisions within the Act were not able to be characterised in the same way.

43 The applicant also submitted that, whilst ss 210 and 213 are not within a stand alone occupational health and safety statute, both provisions "deal with" occupational health and safety, in the sense contemplated by ss 16(2) and (3), and are thus excluded from the operation of s 16(1). The applicant made the following submissions in this regard: (a) The applicant considers the meaning of "deals with" (in s 16(2)(c)), referring to the decision in Re Transport Industry , and also the word "matter" (in ss 16(2)(c) and (3)), indicating that s 210(1)(j) defines the scope of the "matter" in respect of which the applicant seeks relief; namely, as an occupational health and safety matter. The applicant refers to a similar definition of "occupational health and safety" to that which is set out by the Minister, derived from Re Transport Industry . (b) The applicant refers to the decision in Re Transport Industry in support of the contention that the phrase "occupational health and safety" is not limited to reference to specific legislation on that subject matter, but refers to all provisions on that subject matter. (c) The applicant also refers to the legislative history of s 210(1)(j), with similar contentions to those of the Minister, suggesting that the provision is an essential component of occupational health and safety legislation, and for the promotion of health, safety and welfare at work. It is said by the applicant to be "crucial" in ensuring that effective consultation takes place, as one of the stated objectives of the OH&S Act. The Decisions in Re Transport Industry and Endeavour Coal 44 Whether or not a relevant provision of the Act "deals with" a "non-excluded matter", for the purposes of ss 16(2) and (3), and is, thus, excluded from the operation of s 16(1), despite the fact that the provision is not contained within specific legislation prescribing that "matter", has been previously considered in Re Transport Industry and, more recently, in Endeavour Coal. In both those matters, it was ultimately determined, although in the context of the Commission's award-making power under ss 10 and 11 of the Act (and, in Endeavour Coal, with respect to the subject matter of long service leave), that provisions of the Act may fall within ss 16(2) and (3), albeit that they are not contained within statutes which directly prescribe the relevant subject matters.

45 The reasoning adopted in Re Transport Industry and Endeavour Coal is, in our opinion, directly applicable to the adjudication of the current matter.

46 We have had the opportunity to review the judgments in these earlier decisions, and the principles stated therein, and, with respect, agree with them. Each of them address analogous issues to those raised in the present matter. It is appropriate to set out relevant aspects of the decisions at this stage. 47 In Re Transport Industry, the Commission dealt with an analogous question to that arising in the present matter, as noted above, namely, whether s 10 of the Act was a law that dealt with occupational health and safety matters, in the sense contemplated by ss 16(2)(c) and (3)(c). The Commission stated as follows (at [110] - [118]): 110 The relevant exception to s 16(1) is found in ss 16(2) and (3). The argument in these proceedings focused on s 16(3)(c), which in combination with s 16(2) provides that s 16(1) does not apply to an industrial law of a State or Territory so far as it deals with occupational health and safety

111 At the outset, we consider that the subsection should be read beneficially and broadly given that the subject matter of the exception is occupational health and safety. The clear purpose of the exception is to preserve laws which address an important public policy issue, occupational health and safety. The Full Bench of this Commission has made a number of recent observations on the important social purposes of the Occupational Health and Safety Act 1983 and its successor: see, for example, the Full Bench decision in WorkCover Authority (NSW) v T & Y Pty Ltd (2005) 146 IR 458 at [7]; Beacham v Interface Manufacturing Pty Ltd and Another [2005] NSWIRComm 123 at [27]; WorkCover Authority of NSW v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385 at [2]; and T and M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (2006) 151 IR 130 at [77]. While these observations have been made in the context of specific state legislation (the Occupational Health and Safety Act 1983 and its successor), they are nevertheless pertinent to occupational health and safety issues generally. We consider that these social purposes of occupational health and safety legislation should guide our approach to the interpretation of the exception to the extent that any particular aspect of the exception is unclear. 112 In summary, the issues arising from the submissions are:

(a) whether the reference to the occupational health and safety was only to occupational health and safety legislation and not to instruments made under the IR Act that deal with or relate to occupational health and safety issues; (b) whether the exception actually applied to the present application as the exception in ss 16(2) and (3)(c) relates to "laws" dealing with occupational health and safety and as the industrial instruments sought by the Union in its application are not laws, the instruments do not fall within the exception; and (c) the subject matter of the Union's application does not relate completely to occupational health and safety matters. We shall consider each of these arguments in turn. Issue 1: Is the reference to "occupational health and safety" confined to the OH & S Act?

113 Employers First had contended that the reference to occupational health and safety was only to Acts of Parliament making specific occupational health and safety laws and not to statutory provisions which permit the making of instruments that create obligations relating to occupational health and safety matters. We reject this contention for the following reasons:

114 First, we accept Mr Hatcher's submission that s 16(3)(c) does not appear to relate to the OH&S Act as the OH&S Act itself is not listed in s 16(1) and so, by implication, does not need to be "saved" by ss 16(2) and (3)

115 Secondly, there is nothing in the plain words of s 16(3)(c) which would require such a limitation being placed on the phrase "occupational health and safety". Section 16(3)(c) refers to occupational health and safety as a "non-excluded matter". The relevant subject is an occupational health and safety matter, not specific occupational health and safety legislation. We note also that the subject is further defined to include entry of a representative of a trade union to premises for a purpose connected with occupational health and safety. This is instructive as the reference is to the entry of a representative rather than to a law authorising entry.

116 Thirdly, a narrow reading of the phrase ignores the wording of s 16(2) that "subsection (1) does not apply to a law of a State or Territory so far as ..." (emphasis added). The words of the section itself imply that parts, but not all, of a law may deal with occupational health and safety matters. To limit this reference to specific occupational health and safety legislation would, in our view, carry the inference that such legislation only party deals with occupational health and safety matters. We do not believe that the legislature intended such an approach. On the contrary, we consider the clear intent was to "save" those parts of laws caught by the exclusion in s 16(1) that deal with "non-excluded matters".

117 Finally, we consider that the context implies a broader reading: the exclusion operates to protect and preserve parts of legislation caught by the exclusion in s 16(1) insofar as they deal with occupational health and safety. As already mentioned, occupational health and safety provisions serve an important social purpose and it is clear that the legislature has sought to preserve existing regulation in that area. Indeed, there are no other provisions in the WR Act dealing with occupational health and safety matters. Having provided an exception in this area, we do not consider the legislature intended to narrow the matters that would fall within this exception but rather would have intended to include all of the existing regulation in this area.

118 For these reasons, we are satisfied that the phrase "occupational health and safety" is not limited to reference to specific occupational health and safety legislation, but rather refers to all statutory provisions that deal with, or otherwise relate to, occupational health and safety.

48 The Commission concluded as follows (at [146] - [147]): 146 For present purposes, therefore, we consider that s 10, at least to the extent that it has been interpreted as allowing the Commission to make award provisions relating to the health and safety of employees, falls within the exception in ss 16(2)(c) and (3)(c). Section 10 therefore, for this purpose, deals with occupational health and safety matters. Accordingly we are satisfied that s 16(1) does not operate to restrict the Commission from making award provisions relating to occupational health and safety matters. 147 We are fortified in reaching this conclusion by reference to the purpose of the exception in ss 16(2) and (3)(c). As already mentioned, it is clear that the legislature sought to protect certain existing laws, including those relating to occupational health and safety, from the operation of s 16(1). We consider that there is a clear public policy reason for doing so, namely the ongoing concern to eradicate, where possible, risks to the health and safety of employees in the workplace. The legislature has referred generally to occupational health and safety laws and has not sought to narrow that reach. Accordingly, we consider that the purpose was to retain all existing laws relating to occupational health and safety that would otherwise be ousted by the exclusion in s 16(1). We repeat our view that this purpose is also apparent from the fact that the WR Act does not purport to regulate occupational health and safety matters as there are no specific provisions in the WR Act regulating such matters. 49 In Endeavour Coal, the Court initially dealt with the argument by the applicants in that matter, that the exceptions in ss 16(2)(c) and (3)(f) needed to be read so as to give effect to the intention expressed by the legislature in s 16(1) that the WR Act is to operate to the exclusion of State and Territory laws, subject to the exceptions in ss 16(2) and (3). Thus, those matters which had been excluded from the operation of s 16(1) were excluded for the express purpose of enabling the State, by statute, to put in place a statutory minimum provision across that State, and not in order to allow determination by arbitration of general conditions of employment or employees relating to those matters. As the Court noted, the implication of the applicants' argument was that, in the context of long service leave, only a specific statute such as the Long Service Leave Act 1955 would fall outside the general exclusion in s 16(1).

50 The Court rejected those arguments, stating that resolution of the jurisdictional question in this instance turned on the particular construction of ss 16(2)(c) and (3)(f). The Court stated the following (at [16]): 16 We accept that the evident purpose of s 16(1) is to establish a legislative field concerning the prescription of the rights and obligations of employees and employers (as defined) and the regulation of their workplace relations in which the WR Act is to operate to the exclusion of any State or Territory law which, subject to the exceptions in ss 16(2) and (3), intrudes upon that field: Re Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd [2007] NSWIRComm 50. Further, it may be accepted that the general purpose is relevant to the interpretation of s 16. However, in interpreting the section regard must also be had to the words of the exception as they appear in ss 16(2) and (3), the context in which those subsections appear in s 16 and ultimately the evident purpose of the legislature in expressly including a limitation upon the exclusion of state and territory laws.

51 The Court considered the phrase "deals with" as it is contemplated in s 16(2)(c) at [45] - [50] as follows: 45 We also agree with the respondent's submission that the applicant's submissions as to the interpretation of the phrase "deals with" amounts to a contention that the phrase means "determines those subject matters", "sets those subject matters" or "prescribes those subject matters", however, the legislation does not use any of those words yet uses words like "determined" elsewhere in the WR Act. We consider that, if the legislative intent was that the words were to have some restrictive meaning of that kind then it was open to the legislature to have used more restrictive words. It is, in our view, striking that the legislature did not use phrases such as "provide for", "which regulates" or "which makes provision for" which would have confined that operation of s 16(2)(c).

46 The applicants sought to distinguish the Commission's reasoning in Re Transport Industry by reference to the statement of the President in Unilever , made in the context of s 41 of the Act, that in order for a matter to be dealt with, "it would not be sufficient that the matter merely be referred to but rather that it be the subject of an operative provision". On this basis, the applicants contended that as long service leave was not referred to in ss 10 or 11 of the Act, long service leave was not the subject of an operative provision and accordingly ss 10 and 11 did not deal with long service leave. Further, the applicants contended that if the Commission in Re Transport Industry had been referred to in Wright J's considered analysis of the operation of the expression in that case, the Commission would be unlikely to have approached the expression in the way they did, albeit by way of obiter. For the reasons we shall give, we reject the applicants' contention that Unilever stands for the proposition they contend and we also reject the notion that the analysis in Re Transport Industry would have been different had Unilever been referred to .

47 The judgment in Unilever related to the expression "deals with" in the context of s 41 of the Act and contained the following analysis: It is now appropriate to return to Unilever's first or primary argument in this part of its submissions. This issue involves initially considering the operation of s 41(1) of the Industrial Relations Act on the provisions of the enterprise agreement and the award relevant to the s 154 application, the crucial phrase in s 41(1) is "that dealt with". This phrase, or variants of it, is used in many parts of the statute in a number of different senses. Because of its frequent and differing uses in everyday English, dictionary definitions of the phrase "deal with" are not of great use nor would be any attempt to seek definitive assistance in comparing and contrasting the phrase in the various parts of the statute. Notwithstanding these caveats it is appropriate to look to dictionaries for some guidance. The Chambers English Dictionary has been described by the former President of the New Zealand Court of Appeal and Law Lord (Lord Cooke) as the best single volume English Dictionary. Its seventh edition (1990) defines "deal with" as "to have to do with, to treat of, to take action with regard to". The entry in the Macquarie Dictionary , ( 1st Ed, 1981) , provides the following four meanings of "deal" used as an intransitive verb: "1 . to occupy onself or itself (fol. by with or in ): deal with the first question, botany deals with the study of plants . 2. to take action with respect to a thing or person (usu. fol. by with ): law courts must deal fairly . 3. to conduct oneself towards persons deal fairly. 4. to trade or do business: to deal with a firm, to deal in an article" [77] These references show that the meaning of the phrase "deals with" depends essentially on its context. For example, it is plain that the second, third and fourth meanings from the Macquarie Dictionary and the last of the meanings in the Chambers English Dictionary are not relevant to the present issue. One needs to concentrate on the kind of meaning exemplified by the first Macquarie Dictionary definition (the current edition -- 1997 of the Macquarie Dictionary is in similar, albeit simplified, terms). Reference, in the context of the first Macquarie definition, to the internet site Thesaurus.com is useful. There are 29 entries there for the phrase "deals with". Synonyms or definitions given for the phrase relevantly include "relate to", "cover", "include", "embrace", "refer", "concern", "be about", "be relevant" and "bear upon". It is to be observed that within the relevant range of meanings the phrase "deal with" denotes both stronger and weaker connections between the concepts linked by the phrase. Having regard to the effect of s 41(1), which is to override or supersede the terms of an award of the Commission, it is unlikely that legislature intended that a weaker meaning was intended. In other words, it would be expected that for a matter 5 to be dealt with by an enterprise agreement so as to bring s 41(1) into operation it would not be sufficient that the matter merely be referred to but rather that it be the subject of an operative provision. It is also pertinent that, as the last sentence of s 41(1) states, the operation of the provision is subject to the actual terms of the enterprise agreement. 48 We do not accept the applicants' submissions as to the application of Unilever to these proceedings and, in particular, we reject the applicants' selective use of Wright J's analysis. Indeed, contrary to the applicants' submissions, we consider the following observations of Wright J to be critical: Those references show that the meaning of the phrase "deals with" depends essentially on its context....

It is to be observed that within the relevant range of meanings the phrase "deal with" denotes both stronger and weaker connections between the concepts linked by the phrase. Having regard to the effect of s 41(1), which is to override or supersede the terms of an award of the Commission, it is unlikely the legislature intended that a weaker meaning was intended. In other words, it would be expected that for a matter to be dealt with by an enterprise agreement so as to bring s 41(1) into operation it would not be sufficient that the matter merely be referred to but rather that it be the subject of an operative provision. 49 In other words, Wright J dealt with a provision which, having regard to its purpose, should be given a more restrictive interpretation. However, s 16 of the WR Act, and specifically the exclusions in ss 16(2)(c) and (3)(f), are for the reasons already given quite different. Wright J expressly recognised that the meaning of the phrase "deal with" in a particular context depends on the context; further, the phrase denotes both stronger and weaker connections between the concepts linked by the phrase and it is necessary to look at the particular provision to determine the appropriate connection.

50 We are satisfied that this analysis is consistent with our approach to the phrase and for the reasons already given, we are satisfied that a broader reading should be given to the phrase "deals with".

52 The judgment went on to broadly adopted the principles in Re Transport Industry, which were summarised as follows, (at [43]): (a) sub-section 16(2) should be read beneficially and broadly given the public policy purpose of occupational health and safety; (b) the phrase "occupational health and safety" should not be limited to a reference to specific occupational health and safety legislation as there is nothing in the plain words of s 16(3)(c) to require such a limitation; (c) the wording of s 16(2)(c) implies a clear intent to "save" those parts of laws caught by the exclusion in s 16(1) that deal with "non-excluded matters" and as such, the reference to occupational health and safety should not be limited to specific occupational health and safety legislation; (d) the context of the exception implies a broader reading so as to include in the exception all of the existing regulation in the area; and (e) as the Commission's power to make awards setting fair and reasonable conditions of employment related to any "industrial matter" and that as occupational health and safety was an "industrial matter", then s 10 was a law that dealt with occupational health and safety

53 Those principles were then held to be directly applicable to the determination of the issues in Endeavour Coal for the following reasons, (at [44]): (a) as submitted by the respondent, the exclusion for long service leave should be read broadly and beneficially to give effect to the social purposes of the subject matter, namely provision of long service leave to reward employees of long standing. In the Second Reading Speech to the Long Service Leave Act 1955 the Honourable Minister for Labour and Industry and the Minister for Social Welfare, Mr Landa , in describing the benefit of the LSL Act noted: The recognition for the need for more leisure is extending throughout the world, and employers are realising their obligation to reward employees of many years' standing…..

(b) there is no reason to restrict the reference to a law that deals with long service leave in s 16(2)(c) as only referring to provisions which expressly refer to long service leave. The applicant's contention that s 10 is properly characterised as a law that deals with the Commission's award making power (and not long service leave) amounts to a contention that unless the provision expressly refers to long service leave, it is not a provision that deals with long service leave.

(c) this contention is answered squarely by the finding in Re Transport Industry that s 10 was a law that dealt with "occupational health and safety" and we consider that the reasoning in Re Transport Industry is directly applicable, particularly in view of the social purposes of the provision of long service leave;

(d) as accepted by both parties, the Commission's award making power extends to awards containing provision for long service leave on the basis that long service leave is properly an "industrial matter". On this basis, adopting the reasoning in Re Transport Industry , s 10 is a law that deals with long service leave.

54 As we earlier mentioned, we consider that the principles set out in Endeavour Coal are directly applicable in this instance. In adopting and applying the reasoning of Endeavour Coal in this matter, the conclusion which must be reached is, in our view, that ss 210(1)(j) and 213 (so far as it is read in conjunction with s 210(1)(j)) ought to be properly characterised as laws that "deal with" occupational health and safety. 55 In Endeavour Coal, it was determined that it was not appropriate to limit the exceptions contained in ss 16(2) and (3) to statutes specifically prescribing the relevant subject matters ( "non-excluded matters" within s 16(3)), namely long service leave and occupational health and safety, given the social purpose of those subject matters, as well as the particular construction of s 16 itself. The relatively broad power of the Commission to make awards, to the extent that those awards related to the relevant subject matters, were found to be properly characterised as "laws" that "deal with" "non-excluded matters". 56 In applying this reasoning to the current proceedings, we agree with the Minister and applicant that s 210(1)(j), and s 213 are also clearly "laws" which "deal with" occupational health and safety, and are thus removed from the operation of s 16(1).

57 In light of the principles established in these earlier decisions, the placement of the subject law concerning occupational health and safety legislation, per se, is not necessary in order to characterise a law as falling within the exceptions set out in ss 16(2) and (3). Whilst we accept that the Act is rendered inoperative to the extent that it intrudes upon the legislative field established by the Commonwealth in s 16(1) of the WR Act, this notion is subject to the express exceptions provided for in ss 16(2) and (3). Without detracting from the broader discussion of principle in Re Transport Industry and Endeavour Coal, it is possible to distil the following bases in support of that conclusion.

58 First, section 16(2) states that s 16(1) does not apply to a law of a State or Territory "so far as" the law "deals with" any of the "non-excluded matters" set out in s 16(3) (including occupational health and safety in subsection (3)(c)). It is not necessary that the phrase "occupational health and safety" (in the context of s 16(3)(c)) be limited to only refer to specific occupational health and safety legislation.

59 Secondly, there is no expression of intent on the part of the Commonwealth in the wording of s 16 to require such a narrow construction of s 16(2) and (3). Subsections (2) and (3) refer only to occupational health and safety as a "non-excluded matter", and there is no reference to specific occupational health and safety legislation as such. Further, subsection (2) simply states that subsection (1) does not apply to State or Territory laws "so far as...". This would suggest that any provision which related directly to occupational health and safety, even where that provision is within a statute which may not deal in its entirety with that subject matter, ought to be preserved. Thus, the provisions within the Act, with which we are presently concerned, can properly be characterised as dealing with occupational health and safety, despite the fact that they are contained within industrial law. Such an approach is consistent with the principles settled in Endeavour Coal.

60 Thirdly, applying the broad interpretation of the phrase "deals with" set out in Endeavour Coal, it is apparent that s 210(1)(j), and s 213 to the extent that it complements s 210(1)(j), are provisions which "deal with" occupational health and safety. It is not necessary that legislation specifically prescribes, determines, regulates or makes provision for the relevant subject matter.

61 Fourthly, ss 16(2) and (3) (in their application to ss 210(1)(j) and 213) ought to be interpreted "beneficially and broadly", in light of the public policy purpose of occupational health and safety. As determined in Endeavour Coal, there is an implied intention on the part of the legislature to include in the exceptions "all of the existing regulation in the area", given the social purpose of health and safety in the workplace. Given that s 10 of the Act has been found to fall in part within the exceptions to ss 16(2) and (3), we conclude that ss 210(1)(j), and 213, to the extent that it complements s 210(1)(j), ought to be properly characterised as provisions which clearly "deal with" occupational health and safety. This conclusion is plainly available, having regard to the nature, purpose and legislative history of ss 210(1)(j) and 213. Indeed, the analysis, nature and history of the subject provisions demonstrates a fortiori that the sections deal with occupational health and safety laws. This is so for the following two reasons.

62 First, ss 210(1)(j), and s 213 (to the extent that it directly complements s 210(1)(j)), whilst placed within State industrial law (as defined in s 4 of the WR Act), have such a direct connection with occupational health and safety legislation in New South Wales as to effectively constitute a cognate law.

63 Secondly, the subject provision is a statutory provision which deals directly with occupational health and safety. Given the basis for the challenges to the provisions of ss 10 and 11 of the Act in Re Transport Industry and Endeavour Coal, the present matter must necessarily constitute a stronger case, as this matter concerns a statutory provision regulating, of itself, occupational health and safety, as opposed to a provision such as s 10 of the Act, permitting the making of an award concerning occupational health and safety. Nature and History of Section 210(1)(j)

64 Whilst s 210(1)(a) to (h) were already operative at the time of the passing of the Act, and reflected, by and large, similar provisions relating to victimisation contained within s 481 of the Industrial Relations Act 1991, s 210(1)(j) was inserted into the Act as one of the measures introduced by, and as an integral part of achieving the broader objects of, the Occupational Health and Safety Bill 2000 ("the OH&S Bill"), now the OH&S Act. Section 210(1)(j) was intended to be complementary to the OH&S Act. 65 The OH&S Bill was introduced to Parliament on 25 May 2000, after the completion of a review conducted in relation to occupational health and safety laws in New South Wales. The Explanatory note accompanying this Bill referred to a number of amendments to be made with respect to relevant legislation (other than the OH&S Act), and included reference to the following amendment which ultimately took shape as s 210(1)(j) of the IR Act:

(d) amendments to the Industrial Relations Act 1996, to prevent the victimisation of an employee or other person who complains about an occupational health and safety issue and to enable the Industrial Relations Commission to order the reinstatement of a dismissed employee, the payment of compensation or other relief (Schedule 2: Explanatory note pp. 9-10 ( See also - Schedule 2.6[3] in OH&S Act).

66 Section 210(1)(j) was, thus, introduced into the Act through the enactment of related occupational health and safety legislation. There appears to have been a number of similar amendments to s 210(1), whereby subsections have been inserted into ss 210(1) which have a connection to, or their origins in, other legislation (or legislative purposes) other than (those found within) the Act itself. Section 210(1)(ia), for instance, was inserted in 2002 by the Rail Safety Act 2002, and reads as follows:- 210 Freedom from victimisation

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person:

(ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2000. 67 Similar amendments have been made by, for instance, the Transport Legislation Amendment (Safety and Reliability) Act 2003 in 2004 (s 210(1)(ib)) and the Fair Trading Amendment (Employment Placement Services) Act 2002 in 2003 (s 210(1)(k)).

68 In our view, the Act appears to serve, in one sense, as a repository of statutory protections with respect to victimisation, and in connection with, (and in order to, in effect, bolster the objectives of) a range of statutes prescribing relevant subject matters, including occupational health and safety. That s 210(1)(j) has been enacted as an amendment to an industrial law, and deals, along with other similar amendments to that law, with victimisation, ought not detract from the fact that it is, nevertheless, a law which directly "deals" with occupational health and safety, and derives from that legislation. The true purpose of the provision is to not only complement, but form part of, occupational health and safety laws. 69 Further, the OH&S Act initiated a number of significant changes in the area of occupational health and safety, including creating an important duty for employers to consult with employees about workplace health and safety issues. As part of this duty to consult, a range of mechanisms are set out in the OH&S Act, including the appointment of occupational health and safety committees and representatives in the workplace. A legislative measure, such as that found within s 210(1)(j), providing for protection from victimisation in connection with occupational health and safety complaints, was clearly intended to further the objectives of the health and safety reforms; including, in particular, effective consultation.

70 The Minister, in his written submissions, contended that s 210(1)(j) is "designed to maintain and enhance the integrity of the occupational health and safety laws of the State by providing a system of appropriate safeguards against such victimisation, together with remedies should such victimisation be established". He states as follows: 45. There is a clear public interest in ensuring employees have the freedom and confidence to raise health and safety concerns within the workplace. The importance of the role of occupational health and safety committees and representatives within the OH&S Act is also clear and there is also a consequent public interest in encouraging persons in the workplace to participate in these roles 46. Such activities should be able to be pursued without any person being fearful of their job security. This is not only in the interests of employers and employees but is in the overall public interest 71 We agree with the Minister's submissions. Establishing statutory remedies to prevent and to respond to instances of victimisation which might occur where employees seek to engage in those very processes which are aimed at improving and promoting health, safety and welfare at work is vital to the effective operation of the new legislation. It is clear that consultation with, and participation by, employees is certainly seen as an integral component in ensuring that workplace health and safety objectives, as set out in s 3 of the OH&S Act, are achieved. Section 3 sets out the objects as follows:

(a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, (d) to provide for consultation and co-operation between employers and employees in achieving the objects of the OHS Act, (e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, (f) to develop and promote community awareness of occupational health and safety issues, (g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices, (h) to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work.

72 The Attorney General made the following points during the introduction of the OH&S Bill, in his Second Reading Speech (at p. 2), including stressing the importance of the duty of consultation: Additional objects have been included that reflect the principles of prevention through risk management and equity, participation, and the acceptance of responsibility through consultation and community awareness.... A significant new duty has been included in the bill: the duty to consult. In future, employers will be required to consult with their employees to contribute to decisions that affect their health, safety and welfare. Experience has demonstrated that employees can make valuable contributions to the design and implementation of changes to the system of work and the workplace environment generally, especially in a risk management context. 73 Section 210(1)(j) thus, in effect, sustains the basis for complaint in relation to health and safety issues in the workplace, and was intended to serve as a crucial component in meeting the objectives of occupational health and safety legislation. For this reason, it is our view that this provision must be characterised as "dealing with" occupational health and safety as contemplated by ss 16(2) and (3) of the WR Act, as it directly regulates the relevant subject matter, and forms part of the laws governing occupational health and safety. Sections 23 and 23A of the OH&S Act

74 It is important to note that the OH&S Act now contains broadly parallel provisions to those of ss 210(1)(j) and 213, as noted by the Minister in his submissions. Section 23 of the OH&S Act was already in place when the legislation was created in 2000 (reflecting the terms of s 26 of the previous Occupational Health and Safety Act 1983). It reads as follows, as well as providing for maximum penalties to be imposed in relation to unlawful dismissal and other victimisation in relation to occupational health and safety: 23 Unlawful dismissal or other victimisation of employee (1) An employer must not dismiss an employee, injure an employee in his or her employment or alter an employee's position to his or her detriment because the employee : (a) makes a complaint about a workplace matter that the employee considers is not safe or is a risk to health, or (b) is a member of an OHS committee or an OHS representative, or (c) exercises any functions conferred on the employee under Division 2 (whether as such a member or representative or otherwise).

75 More recently, s 23A has been inserted into the OH&S Act. The Industrial Relations Further Amendment Bill 2006 was introduced in late 2006, in response to the perceived confusion arising from the WR Act, and in order to ensure that occupational health and safety matters would continue to be regulated by New South Wales. Section 23A provides remedies for victimisation under s 23, and in similar terms to those contained within s 213 of the IR Act. In the Second Reading Speech introducing the legislation, the following comments were made (at p1): These protections are an essential part of the occupational health and safety network of this State. Employees must have the freedom and confidence to raise health and safety concerns in the workplace. People participating as members of OHS committees or OHS representatives should be encouraged to accept those roles and be supported in those roles. There should be no threats to job security for anyone functioning in these important roles or indeed threats to any person doing the right thing by their workmates and their employers by raising health and safety concerns. Everyone needs to be able to raise health and safety issues in the workplace as and when they arise. This is in everyone's interest.

The protections for employees raising health and safety concerns are vital to the occupational health and safety regime in this State.

76 It was hoped that, by ensuring that these provisions sit within the OH&S Act, there will be a "guarantee that these important remedial provisions live on, providing reassurance to employers and their workers regarding their rights and responsibilities given the current climate of confusion" (p2).

77 The Minister contended, in his written submissions, that these provisions are both clearly directed to occupational health and safety, and are directed to the same objectives and have the same "material legal effect". We agree with this submission. He also notes, correctly, in our opinion, it would be absurd for provisions contained within the OH&S Act (ss 23 & 23A) to fall within the exceptions contained within s 16(2) and (3), but for ss 210(1)(j) and 213 of the Act to be excluded from the exception, by virtue of the fact that the former provisions fall within a "law with health and safety in its name" and the latter are "found within the I R Act".

78 In our opinion, the fact that there are similar provisions within both the OH&S Act and the Act, lends weight to our finding that ss 210(1)(j) and 213 (so far as it is read in conjunction with s 210(1)(j)) fall clearly within the exceptions contained in ss 16(2)(c) and (3)(c). If the provisions within the OH&S Act ought to be properly characterised as occupational health and safety laws, we see no reason to detract from this characterisation simply because the relevant, related provisions are located within industrial law.

79 It is necessary, at this stage, to make some particular observations with respect to s 213, a provision which derived from a similar provision (s 482) in the earlier Industrial Relations Act 1991, and which does not have the same direct origins in occupational health and safety legislation as does s 210(1)(j). Nevertheless, whilst it is clear that s 213 relates to enforcement in relation to Part 1 of Ch 5 of the IR Act generally, so far as the provision relates to victimisation in the context of occupational health and safety, as provided for in s 210(1)(j), we consider that it is incidental to the operation of that provision. As the applicant suggests, to conclude otherwise "would be to strip" s 213 " of any effect".

80 We have decided, therefore, to reject the contentions advanced by the respondent in favour of its motion. Section 210(1)(j) and 213 are not rendered invalid by the provision of s 16(1) of the WR Act. They are saved by ss 16(2)(c) and (3)(c). The respondent's motion is dismissed.

81 We order that the Notice of Motion be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.