Endeavour Coal and others v CFMEU

Industrial Relations Act 1996, ss 10, 11, 154 Industrial Relations Act 1999 Qld LEGISLATION CITED: Long Service Leave Act 1955 Workplace Relations Act, ss 16, 17 Workplace Relations Regulations 2006

Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 Construction, Forestry, Mining and Energy Union (NSW Branch) v Newcrest Mining Ltd (2005) 139 IR 50 Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121 Dingjan and Others; ex parte Wagner and Anor Re (1995) 183 CLR 323 Ex parte McLean (1930) 43 CLR 472 Ford v SAS Trustee Corporation (2000) 98 IR 444 Hospital Employees (Metrop) Conciliation Committee Re [1938] AR 507 In Re Butchers Wholesale (Cumberland) and other Awards [1953] AR 738 CASES CITED: In re Engine Drivers, & c. (South Maitland Railways Pty. Ltd.) Conciliation Committee [1938] AR 266 In re Fire Brigade Employees (State) Conciliation Committee (No. 2) [1945] AR 379 Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd Re [2007] NSWIRComm 50 Lindner Pty Ltd v Builders Licensing Board [1982] 1 NSWLR 612 Nikolaus Beattie & Ors v Commonwealth Bank of Australia [2006] NSWIRComm 238 State of NSW & Ors v Commonwealth of Australia (2006) 81 ALJR 34 (Workchoices) Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) Re (2006) 158 IR 17 Unilever Australia Limited v The Australian Workers' Union, New South Wales and another (2005) 141 IR 266 Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361 Wenn v A-G (Vic) (1948) 77 CLR 84

APPLICANTS: Mr G Hatcher SC Mr S Gardiner of counsel

SOLICITORS: Mr Anthony Longland LEGAL REPRESENTATIVES: Freehills

RESPONDENT: Mr S Crawshaw SC Mr T Slevin of counsel

SOLICITORS: Mr A Bukarica CFMEU

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

ENDEAVOUR COAL PTY LTD AND OTHERS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Application by Endeavour Coal Pty Ltd and others for declaratory relief pursuant to section 154 of the Industrial Relations Act 1996

1 The applicants in these proceedings have sought declaratory relief in response to the respondent's application for the making of a new award to be known as the Coal Industry (Long Service Leave) Award 2006 ("the proposed award"). By way of a further amended application, the applicants seek two declarations in the following terms: AN ORDER declaring that, any award made by the New South Wales Industrial Relations Commission in response to the application brought by the Respondent in matter no. 2785 of 2006 would be invalid and have no legal effect so far as that Award purports to apply to or bind the Applicants, each of whom are employers in the coal industry and constitutional corporations; and AN ORDER declaring that the NSW Industrial Relations Commission does not have jurisdiction pursuant to the provisions of s10 and s11 of the Industrial Relations Act 1996 (NSW) to hear an application for an award determining the condition of employment of long service leave of employees employed by constitutional corporations, as that term is defined in the Workplace Relations Act 1996 (Cth), for so long as that Act makes provision for an exclusion of State Industrial Laws in the terms presently contained in s16 of that Act. Issue for adjudication

2 The issue requiring adjudication in this matter is whether the Commission's accepted jurisdiction to make an award for long service leave pursuant to ss 10 and 11 of the Act is excluded by the operation of s16(1) of the Workplace Relations Act 1996 (Cth) ("WR Act"). Central to the determination of that issue is the question as to whether the award making power of the Commission, so described, is removed from the operation of s16(1) of the WR Act by the combination of ss 16(2)(c) and (3)(f) thereof. That issue may be stated more specifically as being whether the award making power of the Commission with respect to long service leave is a law which deals with (in the sense contemplated in s16(2)(c) of the WR Act) a matter, namely long service leave, as that expression is referred to in s16(3)(f). 3 Both parties accepted that that question was properly a matter for declaratory relief as the application arose directly from the respondent's application for the making of a new award (which has been held over pending the outcome in this matter). It is well settled that the Court has a "broad discretion" under s154 to grant declaratory relief: Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121; Ford v SAS Trustee Corporation (2000) 98 IR 444. 4 We note that the amended declarations have a broader ambit than may be comprehended by the aforementioned issue, however, Mr G Hatcher SC, who appeared for the applicants, accepted that that part of the amended declarations which, in effect, concerned whether s17 of the WR Act operated to exclude the proposed award, if made, from applying to the applicants would more appropriately be addressed as part of any proceedings relating to the making of the proposed award. We have approached the resolution of the application on this basis and, therefore, we shall resolve the application for the declarations in terms of the jurisdictional issue stated above, leaving open for later consideration the balance of the questions potentially raised by the application. 5 There was also a residue of an argument in the applicants' written submissions that the Commission's award making power might be excluded by s16(1) by virtue of s109 of the Constitution, irrespective of the operation of ss 16(2)(c) and (3)(f). The argument was not developed in oral argument before us and for reasons we shall give, it is without proper foundation and we reject it. Relevant statutory provisions 6 The key statutory provision is s16 of the WR Act, which relevantly 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 s4 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. 7 The applicants also referred to the objects of the WR Act in s3 and in particular: The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: … (b) establishing and maintaining a simplified national system of workplace relations; and 8 The relevant State provisions are ss 10 and 11 of the Act, which provide: 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.

11 When award may be made (1) An award may be made: (a) on application to the Commission or on the Commission's own initiative, or (b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. … Agreed factual background

9 The matter proceeds upon the basis of an agreed statement of facts. That statement is in the following terms: 1 Each of the Applicants: (a) is an "employer" as that term is defined in section 6(1)(a) of the Workplace Relations Act 1996 (Cth);

(b) is a constitutional corporation as that term is defined in section 4(1) of the Workplace Relations Act 1996 (Cth);

(c) employs individuals to perform work in the coal mining industry; and

(d) is a respondent to, or is otherwise bound by, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (the Federal Award). 2 At clause 36, the Federal Award provides for a long service leave entitlement and associated machinery provisions. 3 The Respondent has filed an application in the New South Wales Industrial Relations Commission in matter no 2785 of 2006 which seeks the making of a new award to be known as the Coal Industry (Long Service Leave) Award 2006 (the proposed state award). 4 Both the Federal Award and the proposed State Award (if made) have, or will have, application in the coal mining industry. 5 The area and incidence of the proposed award would, as a minimum, apply to persons not covered by the Federal Award. 6 Each of the applicant companies is either bound by the Federal Award, or is party to a federal agreement that substantially replicates, or incorporates by reference, the long service leave provision contained in the Federal Award. 7 There are a number of companies that operate in the New South Wales coal industry who are not bound by the Federal Award or a federal agreement that substantially replicates, or incorporates by reference, the long service leave provisions of the Federal Award. Commission's award making power

10 As we have observed, the terms of the declarations sought, and the submissions of the parties, have been predicated upon the foundation endorsed by both parties that the Commission has the power to make an award for provision of long service leave and matters incidental thereto under ss 10 and 11 of the Act. 11 This premise is plainly correct and is supported by the jurisprudence of the Commission over a long period (see authorities concluding that long service leave is an industrial matter for the purpose of s6 of the Act: Re Butchers Wholesale (Cumberland) and other Awards [1953] AR 738; Re Engine Drivers, & c. (South Maitland Railways Pty. Ltd.) Conciliation Committee [1938] AR 266; Re Fire Brigade Employees (State) Conciliation Committee (No. 2) [1945] AR 379 and Nikolaus Beattie & Ors v Commonwealth Bank of Australia [2006] NSWIRComm 238). Indeed, the provision of long service leave in New South Wales originated in award provisions (made under antecedent legislation to the Act), however, those provisions were generally only included with consent of the relevant union and employer: see Re Hospital Employees (Metrop) Conciliation Committee [1938] AR 507 per Webb J. Subsequent to the making of those awards, general legislation applicable to all workers in New South Wales was introduced. 12 Long service leave was first legislated for in 1951, via the insertion of a provision (s88C) in the then Industrial Arbitration Act 1940 which required industrial tribunals, upon application by a union, to insert in an award provisions for long service leave. In 1955, the Long Service Leave Act 1955 ("the LSL Act") made specific provision for long service leave for all workers in New South Wales. 13 Section 6 of the Long Service Leave Act 1955 expressly recognises the continuation of the Commission's award making power with respect to long service leave: Nothing contained in this Act shall limit or in any way affect the powers, authorities, duties and functions conferred and imposed on the Industrial Relations Commission by or under the Industrial Relations Act 1996 in respect of long service leave: Provided that in the exercise and performance of such powers, authorities, duties and functions, the Commission shall not in any award whether made before or after the commencement of this Act insert any provisions relating to long service leave unless those provisions are more favourable to workers than the provisions of section 4 or are applicable to persons who are not workers entitled to the long service leave provided by section 4. Construction of s16

14 Broadly speaking, it was accepted by both parties that s16(1) expressed a clear intention that the WR Act is to operate to the exclusion of the State and Territory laws referred to in s16(1), subject only to the exceptions in ss 16(2) and (3). The applicants approached the question as to whether an exception was available in the present circumstances in two ways. First, the applicants sought to develop a general argument with the following elements:

(a) the exception in ss 16(2)(c) and (3)(f) needed to be read so as to give effect to the general intention;

(b) certain matters had been excluded for the express purpose of enabling the State, by statute, to put in place a statutory minimum provision across that State; and

(c) those matters were not excluded to allow determination by arbitration of general conditions of employment of employees relating to those matters.

The implication of this general argument was the contention that, in the context of long service leave, a specific statute such as the Long Service Leave Act , would fall outside the general exclusion, however, the Commission's power to make award provisions for long service leave would be caught by the general exclusion in s16(1). 15 Secondly, the applicants developed an argument by reference to the particular wording of the exception in ss 16(2)(c) and (3)(f) to the effect that ss 10 and 11 were not laws that dealt with long service leave in the manner contemplated by ss 16(2)(c) and 3(f). 16 We accept that the evident purpose of s16(1) is to establish a legislative field concerning 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 s16 and ultimately the evident purpose of the legislature in expressly including a limitation upon the exclusion of state and territory industrial laws. 17 For the reasons we will develop, we do not consider that the applicants have demonstrated as a general proposition that the legislature in s16 intended to exclude the general award making power of this Commission as to long service leave. When due regard is had to the WR Act as a whole and specifically in s16 to the exclusion of state laws, we do not consider that area of exclusion extends to the general power to make an award for long service leave. Accordingly, we have rejected the applicants' general proposition in that respect. Further, whilst we agree with the proposition that the phrase "deals with" may vary in context, we do not consider the applicants are correct in seeking to narrowly define the meaning of the phrase "deals with" by, in effect, equating the phrase to "determines", "sets" or "prescribes". We have also rejected their submissions seeking to distinguish the previous authority on the meaning of the phrase "deal with" in s16(2)(c) (see Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) (2006) 158 IR 17). The respondent is right in asserting the correctness of Re Transport Industry and in contending that the terms of the exception tend against the meaning sought to be imputed by the applicants. As such, we do not accept the applicants' submissions as to the meaning of the phrase "deals with" and are satisfied that, ss 10 and 11 of the Act do, for the purposes of ss 16(2)(c) and (3)(f), deal with long service leave. 18 We now turn to consider those contentions in detail, commencing with a discussion in a general sense of the purpose of s16. 19 As to the applicants' general argument relating to the intention of the legislature in enacting s16, the applicants submitted:

(a) the intention of the legislature in enacting s16 of the WR Act can be gleaned from paragraph (b) of the definition of "State or Territory industrial law" as it is descriptive of the type of law that the Federal legislation seeks to exclude in its attempt to create a unitary national system of workplace relations;

(b) the objects in s3 of the WR Act and the reference to s16 in the explanatory memorandum reveal a legislative intention that there will be a statutory minima created through a combination of Federal and state legislation with a view to encouraging employers and employees to agree on the conditions of employment to apply to them, rather than, as had historically been the case, having them imposed by third party arbitration. A statutory minima is very different to the Commission's task under s10 of the Act to set fair and reasonable conditions of employment; and

(c) the second reading speech and the explanatory statement in relation to the Workplace Relations Regulations provides clear support for the proposition that the Commonwealth legislature's intention in passing the WR Act was that State laws that prescribed long service leave would continue to have operation as State laws, not laws empowering State tribunals to determine conditions of employment. 20 Having considered the material to which the applicants referred us, we are not satisfied that it assists in the way contended. As we have already noted earlier in this judgment, there is some force to the submissions advanced by the applicants that the general thrust of s16(1) in a very broad sense tends to the general exclusion of State industrial laws. This is the evident purpose of s16(1), which can be readily drawn from an extract from the Second Reading Speech: While employers and employees covered by Work Choices will not be subject to regulation by state employment laws, state laws will continue to cover such matters as occupational health and safety, workers compensation, trading hours and public holidays. 21 It is also apparent from the Explanatory Statement to the Workplace Relations Regulations 2006, in which paragraph 18 provides: To the extent that a State or Territory law is within the scope of subsection 16(1), and is not prescribed under this regulation or otherwise saved by subsections 16(2) and (3), the State or Territory law will be excluded in relation to an employee or employer within the meaning of subsections 5(1) or 6(1). The effect of this is that, for example, the State and Territory industrial laws will cease to apply in relation to an employee or employer within the meaning of subsection 5(1) or 6(1) for the following kinds of matters: · matters about state awards (other than compliance with award obligations before the reform commencement), including the making or variation of an award; 22 However, we do not consider that it is possible, as the applicants seek to do, to extrapolate from this purpose so as to conclude that the specific exceptions to the general exclusion should be narrowly interpreted to only apply to specific statutes on the particular "non-excluded matter". To end the analysis at this broad level ignores the more particular context in which the exceptions in ss16(2) and (3) exist. While s16(1) is clear in its purpose of excluding State and Territory industrial laws (as defined), the literal words of ss16(2) and (3) in context tend against the general argument advanced by the applicants.

23 We accept the respondent's submissions that establishing the general intention does not ultimately aid in the interpretation of the specific exceptions in ss16(2) and (3). The exceptions in ss16(2) and (3) are only specifically dealt with in paragraph 82 of the explanatory statement to the regulations and as the respondent rightly identifies, the paragraph goes no further than replicating the words of the statutory provision. We do not consider that any useful legislative intention can be drawn from those words nor can any clues be drawn as to how the words used should be interpreted. 24 Further, we do not accept that there is an inherent conflict between the general thrust of the WR Act to set statutory minima and the Commission's task under s10 of the Act to set fair and reasonable conditions of employment. As the respondent rightly pointed out, the conditions set under s10 still become minima as there is no suggestion that they are, in effect, statutory paid rate awards where one cannot pay any more than what is set by the Commission pursuant to s10. In this sense, the provisions of the award set by s10 are no different than the statutory minima provided under the WR Act. On this basis, we reject the applicants' submission that the general intention of the WR Act to set statutory minima means that the exception in s16(2)(c) should be read to only include specific laws that set a statutory minima as there is nothing in the context of the provision to warrant such a limitation. 25 The applicants also contended that the notion that State arbitral awards were not intended to be maintained is evident from the fact that all State awards in existence at the time of the commencement of the WR Act, so far as they related to constitutional corporations and their employees, became National Agreement Preserving State Awards ("NAPSAs") and could then only be varied in the Federal system. The applicants contended that it seems entirely inconsistent that given the objects of the WR Act to envisage a system where a State employer, that is, a constitutional corporation, who employed in the State of New South Wales prior to March 2006 - and who was not respondent to a Federal award - would become respondent to a NAPSA and ultimately a Federal award, but would now also be subject to State awards in relation to long service leave, public holidays and the matters that are dealt with in s16(3), that is, the constitutional corporation would be the subject of a State award in which an arbitral tribunal would determine the appropriate condition. 26 We reject the relevance of the treatment of NAPSAs as somehow directing the reach of ss 16(2)(c) and (3)(f). First, it does not recognise that, as noted by the respondent, existing state awards continue to exist under the state system notwithstanding the creation of NAPSAs. Secondly, it does not take into account that the WR Act is confined in operation to constitutional corporations and, as such, state arbitral systems will continue. Thirdly, it fails to recognise the context within which the provision was enacted, namely that it was without doubt that, at least as concerns long service leave, regulation was by way of statute and arbitral awards. For the reasons already given, the particular context of the exception in ss 16(2)(c) and (3)(f) to exclude laws dealing with long service leave from the exclusion in s16(1) is broad and, in our view, tends against any implication that may be drawn from the creation of NAPSAs. For these reasons, we reject the applicants' contentions that the treatment of NAPSAs aids in the interpretation of ss 16(2)(c) and (3)(f). 27 The applicants also sought to interpret the exclusion in s16(2)(c) by reference to the overall statutory context within which it was enacted. Specifically, the applicants contended that the exception was drafted with the knowledge of the existing State laws and all States except Queensland have specific long service leave legislation. In Queensland, statutory minima for long service leave is provided for in the Queensland equivalent to the Act (Industrial Relations Act 1999 Qld) and, as such, would have been excluded by the operation of s16(1). The applicants then postulated that this is the reason for the actual wording of the exception and should be construed as only dealing with the Queensland situation and not in a way that allows exercise of arbitral powers to set long service leave award provisions. 28 We reject the relevance of the statutory position in Queensland as guiding the interpretation of ss16(2) and (3). We consider that the notion that s16(2)(c) was only directed to exempting laws that specifically dealt with the relevant subject matter is not supported by reference to the statutory provision of long service leave in Queensland as contended by the applicants. In this regard, we accept the respondent's submission that there is nothing in the extrinsic material to suggest that the drafting was designed to address only the Queensland situation. 29 Moreover, as the respondent contended, while the Queensland Industrial Relations Act contains a specific section setting long service leave, it also contains an arbitral provision conferring on the Queensland Industrial Commission the power to decide the entitlement to long service leave for certain employees. Accordingly, the existence of a statutory minima in the Queensland does not advance the applicants' contention. Indeed, the opposite would seem to be the case; that the exclusion was drafted with the knowledge that provision of long service leave was by way of long service leave specific legislation and award provisions as our earlier summary of the history of provision of long service leave in New South Wales demonstrated. 30 The applicants also referred us to particular sections of the majority judgment in the High Court's decision in State of NSW & Ors v Commonwealth of Australia (2006) 81 ALJR 34 (Workchoices) as being relevant for the following reasons:

(a) the characterisation of the legislation contended by the applicants is supported by the description of the legislation in the majority judgment (at 53) - namely legislation directed to securing minimum conditions of employment and allowing agreement making beyond those minimum conditions;

(b) the High Court's analysis of the reasoning in Re Dingjan (1995) 183 CLR 323 is illustrative of how to characterise a law; and

(c) the Federal legislature was legislating to vacate the field of State regulation and the Commonwealth in passing legislation inconsistent with state legislation does not need to have specifically dealt with the matters dealt with in the state legislation, that is, the Commonwealth scheme may be substantially less prescriptive than the State scheme but if it is inconsistent with this less prescriptive scheme then the relevant inconsistency arises. 31 Having closely considered each of those passages in the majority judgment, we do not consider they advance the applicants' case in the manner contended. We agree with the respondent that the High Court, in Workchoices, did not consider the interpretation of the exceptions in ss16(2) and (3). We also do not consider that the passages to which we were referred support the notion that a narrow reading should be given to the exceptions in ss16(2) and (3) in view of the broad legislative intention as we shall now consider. 32 We acknowledge that the majority in Workchoices accepted the parties' summary of the legislation as being directed to securing minimum conditions of employment and allowing agreement making beyond those minimum conditions. However, as to the guidance offered by the acceptance of that summary, we refer to the following passage of the majority judgment ([12] at 53): The States and the Commonwealth, for the purposes of the presentation of their arguments, agreed upon a description of the operation of the relevant provisions of the new Act. That agreed description is substantially as follows. The language of the agreement of the parties will be adopted, without supporting references to the specific legislative provisions. It is not intended to foreclose any issues of construction. 33 Counsel for the applicants also referred us to the majority's analysis of Re Dingjan and Others; ex parte Wagner and Anor (1995) 183 CLR 323. That case was concerned with interpreting whether a law was a law with respect to a constitutional corporation. Again, having closely reviewed the relevant aspect of the majority's judgment we see no relevance for the present purposes. We are not tasked with considering the phrase "with respect to" and do not consider that that phrase is analogous to the phrase "deal with" with which we are concerned. 34 Lastly, counsel for the applicants referred us to passages from the majority judgment in which the majority considered whether s16 is a law with respect to any head of power in s51 of the Constitution. Again, having closely reviewed those passages we find that they do not provide guidance determinative to the applicants' case. We accept that the majority's analysis of s16 confirms that an inconsistency can arise even if the Federal legislature has not provided legislative provisions to cover the area in which the inconsistency is said to arise. However, we do not consider that this assists the applicants' case given that, for the reasons we shall develop, it does not turn on a general inconsistency argument.

35 In summary, therefore, we do not consider that the general arguments made by the applicants provide an answer to the question squarely raised by the declarations as developed at the outset. The real answer to this question turns on the particular construction of the exception in ss 16(2)(c) and (3)(f), which we shall now consider.

36 In combination, ss 16(2)(c) and (3)(f) provide that s16(1) does not apply to a State or Territory industrial law so far as it "deals with" … "long service leave". A critical aspect in interpreting this exception is the meaning of the phrase "deals with". 37 As to the meaning of "deals with", counsel for the applicants submitted:

(a) the expression "deals with" derives its meaning from its context - it can be a wide expression or it can be a narrow expression; however, it requires some direct relationship to the subject; and

(b) an analysis of the terms of ss10 and 11 leads to the conclusion that they do not deal with long service leave as: (i) properly characterised, those laws deal with the power of the Commission to make awards or, in other words, to set conditions of employment; (ii) ss10 and 11 cannot be characterised as laws that deal with long service leave as no mention is made of long service leave in those sections (nor elsewhere in the Act) and they do not establish rights or obligations with respect to long service leave; and (iii) in order to deal with long service leave, those sections would need to refer to long service leave and be an operative provision in respect of long service leave.

38 In this regard, the applicants submitted that we should apply the President's decision in Unilever Australia Limited v The Australian Workers' Union, New South Wales and another (2005) 141 IR 266 and further we should find that the Full Bench's decision in Re Transport Industry was incorrect in so far as it dealt with the interpretation of "deals with" in s16(2)(c) of the WR Act. 39 The respondent submitted that ss 10 and 11 empower the Commission to make awards providing for long service leave and as such they deal with long service leave. In further submissions, the respondent adopted the reasoning in Re Transport Industry and contended that the reasoning in that case in relation to the subject matter of occupational health and safety is applicable to the subject matter of long service leave. In support of this, Mr S Crawshaw SC, counsel for the respondent, further submitted:

(a) the exception in s16(3)(f) should be read beneficially and broadly given that the subject matter of the exception is long service leave. In Lindner Pty Ltd v Builders Licensing Board [1982] 1 NSWLR 612, Samuels JA said this about the Building and Construction Industry Long Service Payments Act 1974 (at 613): It seems to me that once one arrives at that general conclusion about the purpose of the Act, it is, as Cross J, viz Builders Licensing Board v BJ Linder Pty Ltd [1982] 1 NSWLR 561, described it, a piece of social legislation designed to provide benefits for a category of the workforce. That being the case, it is entitled to a beneficial construction rather than to a strictly literal one, this being the approach applied to legislation of similar purpose in cases such as State Government Insurance Office (Queensland) v Crittenden (1966) 117 CLR 412, and in earlier cases in the High Court …

(b) the social purposes of long service leave legislation should guide the Court's approach to the interpretation of the exception to the extent that any particular aspect of the exception is unclear;

(c) the applicants had not in their submissions, whether written or oral, provided an argument as to why that decision was wrong or should be confined to occupational health and safety rather than long service leave; and

(d) the applicants' 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 and uses words like determined elsewhere in the WR Act. In other words, if the legislative intent was that the words would be so restricted it could have used those more restrictive words and, as it were, have the direct connection with the express entitlement. The broad words actually used are not amenable to the construction suggested by the applicants. 40 As the parties recognised, the meaning of the phrase "deals with" in s16(2)(c) of the WR Act and the operation of the exclusion in ss 16(2)(c) and 16(3) has previously been dealt with by the Full Bench of this Commission in Re Transport Industry. Re Transport Industry involved an analogous question to that arising in the present matter as to whether s10 of the Act was a law that dealt with occupational health and safety matters. 41 At this stage, it is instructive to set out the relevant aspect of the Full Bench's reasoning in relation to its finding that s10 was a law that dealt with occupational health and safety: 110 The relevant exception to s16(1) is found in ss16(2) and (3). The argument in these proceedings focused on s16(3)(c), which in combination with s16(2) provides that s16(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 protection. 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 (Inspector Glass) v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385 at [2]; and T and M Industries (Aust) Pty Ltd and Anor v WorkCover Authority (NSW) (Inspector Sequeira) (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 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 ss16(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 s16(3)(c) does not appear to relate to the OH&S Act as the OH&S Act itself is not listed in s16(1) and so, by implication, does not needed to be "saved" by ss16(2) and (3). 115 Secondly, there is nothing in the plain words of s16(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 such entry. 116 Thirdly, a narrow reading of the phrase ignores the wording of s16(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 partly 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 s16(1) that deal with the "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 s16(1) insofar as they deal with occupational health and safety. As already mentioned, occupational health and safety statutory 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. … 135 … At issue in the present proceedings is whether the WR Act affects the Commission's ability to make the award sought.

136 The Commission's power to make the proposed award is derived from s10 of the IR Act , which provides: The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.

137 "Conditions of employment" is defined in the IR Act as:

conditions of employment includes any provisions about an industrial matter.

138 Accordingly, the question turns on whether s10 can fall within the exception in ss16(2) and (3)(c), that is, whether s10 of the IR Act "deals with" an occupational health and safety matter. 139 While the parties did not refer us to any authorities on the meaning of the phrase "deals with", it is instructive to briefly refer to some authorities in this area. In NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781, Lindgren J was required to consider the meaning of the expression "the requirements of the natural justice hearing rule in relation to the matters [Div 5] deals with" and, in particular, the words "the matters [Div 5] deals with" in s357A of the Migration Act 1958 (Cth). In obiter, Lindgren J found that the expression was intended to refer to a larger subject matter or larger subject matters than the exact text of the procedural fairness requirements to be found in Div 5. By reference to the context of the section, his Honour was inclined to the view that the expression required a search to be made of the operative provisions within Div 5 for a provision "dealing with" a relevant "matter". Given the precise facts of the case, his Honour was not required to resolve this issue finally nor was he required to identify the full reach of the expression "the matters it deals with", that is, how explicitly the matter had to be dealt with. 140 In Shop, Distributive and Allied Employees Association v Retail Traders' Association of Victoria (1998) 83 IR 352, the Full Bench of the Australian Industrial Relations Commission (AIRC) found that the expression "deals with allowable award matters" was wide enough to permit the AIRC to retain award provisions which were incidental to allowable award matters and necessary for the effective operation of the award.

141 In the present context, therefore, it is necessary to consider the extent to which the IR Act deals with occupational health and safety in the context of making an award pursuant to s10 of the IR Act. 142 It is well established that the Commission may have regard to considerations of health and safety when making an award and the parties in this matter did not seek to contend otherwise. In Re Operational Ambulance Officers (State) Award (2001) 113 IR 384, the Full Bench concluded: [184]... The authorities cited above indicate that it is appropriate for the Commission to have regard to considerations of the health and safety of employees when making an award setting fair and reasonable conditions of employment. This approach is consistent with the approach which has been adopted by this Commission over many years and reflects ongoing concern to eradicate, where possible, threats to the health and safety of employees in the workplace. [185] One consideration that may be relevant to the exercise of the Commission's discretion to make an award in light of considerations of health and safety is the existence of parallel obligations under other legislation, particularly the Occupational Health and Safety Act . In our view, the existence of general obligations on employers under other legislation, or under the common law, should not operate to limit the Commission's jurisdiction to make awards which also address health and safety concerns. The focus of an award is clearly distinguishable from the duties imposed by the Occupational Health and Safety Act . Generally speaking, an award is intended to prospectively provide for the general conditions of employment for employees in an enterprise, occupation or industry. An award, by its nature, lays down relatively specific conditions to be provided in the future by employers to employees working in a particular industry. In contrast, the Occupational Health and Safety Act imposes an absolute duty on an employer to ensure the health and safety at work of all its employees. Among other things, the duties under the Occupational Health and Safety Act require an employer to take a continuously pro-active approach to issues relating to health and safety. This duty will inevitably extend beyond any requirements which can be laid down in an award: see Re NSW Department of Community Services Community Living and Residential (Interim) (State) Award (at 467). [186] Thus, one matter to which the Commission should properly have regard when determining what are fair and reasonable conditions of employment is the health and safety of employees. In doing so, the award is not seeking to replicate or diminish the much broader obligations of an employer under the Occupational Health and Safety Act. Many measures that will be necessary for an employer to take in compliance with its obligations under the Occupational Health and Safety Act will not ordinarily be apt for inclusion in an award. Because an award may apply to all employees in an industry as a common rule, there may be limits to the extent to which award provisions requiring measures to be adopted in relation to health and safety can address the circumstances of an individual employee. It would, for example, be difficult to make provision in an award for the detailed systems of work to be adopted in a particular workplace. However, if there are measures of the nature of conditions of work having general effect, which are applicable for an award and which are available to address threats to the health and safety of employees covered by an award, provision should be made in the award for those measures to be adopted. Further, we have little doubt that an applicant will, where it has made out a case for the making or variation of an award based on occupational health and safety considerations pursuant to s 10 of the Act, ordinarily demonstrate that case has sufficient attributes to bring the matter under the special case principle.

143 The relevance of occupational health and safety matters also arises from the definition of "industrial matter". "Industrial matters" is defined in s6 of the IR Act as: In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

144 A non-exhaustive list of examples of industrial matters is also included in s6. This definition has been judicially considered on many occasions, including in the context of antecedent industrial legislation. It is clear from those authorities that "industrial matters" has included matters which would be considered occupational health and safety matters, including time to be allowed for the performance of a particular operation ( Re Engine Drivers et (South Maitland Railways Ltd) Conciliation Committee [1938] AR (NSW) 266 at 290-92) and measures for the protection of the safety and health of employees against hazards arising in the course of their employment, eg compulsory medical examinations at the employer's expense ( Re Glass Makers (State) Conciliation Committee [1944] AR (NSW) 292 at 308-309).

145 The link between "industrial matters" and the Commission's award making jurisdiction is also well established. In Re Pastoral Industry (State) Award (2001) 104 IR 168, the Full Bench stated (at paragraph 20): It follows that the Commission's jurisdiction as to the subject matters about which it may make an award are extremely wide, particularly having in mind the definition of industrial matter.

146 For present purposes, therefore, we consider that s10, at least to the extent 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 ss16(2) and (3)(c). Section 10 therefore, for this purpose, deals with occupational health and safety matters. Accordingly, we are satisfied that s16(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 ss16(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 s16(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 s16(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. 42 We agree with the reasoning of the Full Bench in Re Transport Industry. Further, and notwithstanding the difference in subject matter between that case and this matter, we consider that the decision is entirely applicable, by parity of reasoning, to the present matter. 43 In essence, the Full Bench in Re Transport Industry made the following findings relevant to this issue:

(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 s16(3)(c) to require such a limitation;

(c) the wording of s16(2)(c) implies a clear intent to "save" those parts of laws caught by the exclusion in s16(1) that deal with the "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 s10 was a law that dealt with occupational health and safety. 44 We consider that, notwithstanding the difference in subject matter, the reasoning in Re Transport Industry is directly applicable to the present matter for the following reasons:

(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 of 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 s16(2)(c) as only referring to provisions which expressly refer to long service leave. The applicants' contention that s10 is properly characterised as a law that deals with the Commission's award making power (and not long service leave) amounts to an 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 s10 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, s10 is a law that deals with long service leave. 45 We also agree with the respondent's submission that the applicants' 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 s16(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 s41 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 ss10 or 11 of the Act, long service leave was not the subject of an operative provision and accordingly ss10 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 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 s41 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 s154 application, the crucial phrase in s 41(1) is "that deal 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 oneself 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 forth 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 "deal 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 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. 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, s16 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". Meaning of the phrase "long service leave"

51 In seeking to exclude the availability of the exception, the applicants contended that ss 10 and 11 of the Act were not the laws that s16(2)(c) was directed to and advanced this contention by making submissions as to the meaning of the phrase "long service leave" in the context of s16(3)(f), namely that:

(a) s16(2)(c) refers to a law dealing with "a subject matter" and, as such, it talks of a law that is directed by specifically that subject matter - not a law that is dealing with the determination of conditions of employment generally; and

(b) the content of the list of "non-excluded matters" in s16(3) shows that most of them have traditionally been dealt with by statute. 52 The respondent contended that there was nothing in the section itself which supports the proposition that "law" should be read as referring only to legislation (or provisions) specific to the relevant subject matter and that the phrase should not be construed as referring to specific long service leave legislation only. The respondent further submitted that this had been dealt with by the Full Bench in Re Transport Industry. 53 We agree with the respondent that there is nothing in the section which supports the proposition that the phrase "long service leave" in the context of s16(3)(f) should be read as referring only to specific long service leave legislation. In addition, we observe:

(a) the different wording used in the exceptions in ss16(2)(a) and (c) tends against the interpretation the applicants contended. Section 16(2)(a) saves state or territory laws so far as they deal with the prevention of discrimination, the promotion of Equal Employment Opportunity or both if that law is "neither a State or Territory industrial law nor contained in such a law" (emphasis added). By contrast, s16(2)(c) does not contain the caveat "neither a State or Territory industrial law nor contained in such a law" and simply applies so far as "the law deals with any of the matters (the non-excluded matters) described in subsection (3)". The legislature could plainly have chosen to apply the caveat in s16(2)(a) to s16(2)(c) yet it did not do so. This would suggest that provided the particular law met the test in s16(2)(c), it would not matter if it was within a State industrial law, as defined;

(b) there are, in fact, two exceptions that relate to "long service leave" in s16. The first appears in s16(1)(b) in the description of the laws that the general exclusion is directed to (one that applies to employment generally and deals with leave other than long service leave) and the second, in ss16(2)(c) and (3)(f), as exempting a state or territory law so far as that law deals with long service leave from the general exclusion. Even in the general exclusion of state industrial laws in s16(1), there is a contemplation that long service leave would still be subject to state regulation. This is then confirmed by way of the exception in s16(3)(f). Viewed in this way, we consider that the context tends against s16(3)(f) being construed as limited to specific long service leave legislation. Rather the context implies an intention to not disturb the existing state regulation of long service leave; and

(c) an analogous argument was squarely dealt with by the Full Bench in Re Transport Industry (at [115]) that the phrase is not limited to specific occupational health and safety legislation. For the reasons already given, the reasoning that applied in Re Transport Industry is directly applicable to s16(3)(f) notwithstanding that it relates to long service leave. 54 Finally, we reject the applicants' assertion that the content of the list of "non-excluded matters" shows that most of them have traditionally been dealt with by statute. Not only do we disagree with the factual basis of this assertion (as our earlier analysis of the Commission's award making power demonstrates), we also reject the relevance of it to the interpretation of the exception. General inconsistency

55 As mentioned at the outset, the applicants' jurisdictional challenge was made on two bases. We turn to briefly consider the second basis to the extent that the argument was pressed. During the hearing, counsel for the applicants did not make any submissions advancing this contention although he did not withdraw it when given the opportunity to do so. 56 In essence, the applicants contended:

(a) an inconsistency of the type described in s109 will exist between a Federal law and a State law where the Federal law evinces an intention to cover a particular field of operation and the State law intrudes upon that field of operation ( Ex parte McLean (1930) 43 CLR 472 at 483 - the "covering the field" test;

(b) in the clearest possible terms, s16 states the intention of the Federal Parliament, in enacting the WR Act, to cover the field of the regulation of the industrial relationships of employers and employees as defined. It is expressed to cover this field by the exclusion of laws of a State or Territory which might otherwise impinge upon that field: Wenn v A-G (Vic) (1948) 77 CLR 84 at 110 per Latham CJ, at 120 per Dixon J; Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46;

(c) sections 10 and 11 of the Act are such a law and the exclusions in s16 do not apply as s10 and 11 are not laws that "deal with" long service leave; and

(d) the intention referred to above is supported by reference to the Explanatory Statement to the Workplace Relations Amendment (Work Choices) Act 2005 , and the second reading speech to the WR Act and the shifting of existing state awards to the federal system under the WR Act.

57 The respondent contended the WR Act does not evince an intention to "cover the field" concerning long service leave but instead evinces an intention to exclude long service leave from the exclusive coverage of the WR Act and, as such, there is no inconsistency and no invalidity arises under s109. The respondent also sought to distinguish the relevance of the extrinsic material to which the applicants referred. 58 The approach to, and analysis to be undertaken in, resolving an alleged inconsistency of the type covered by s109 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 Nikolaus 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 s16 of the WR Act evinces an intention to cover the field and, on that basis, the Commission's award making power is excluded by s16(1). However, this contention does not provide a complete answer in light of the express terms of s16. 60 As we have already mentioned, we accept that the evident purpose of s16(1) is to establish a legislative field concerning 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 s16(2) expressly provides that this exclusion does not operate in all instances. It is inconceivable that s16 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 ss16(2) and (3) must play. Indeed, we agree with the respondent's contention that ss16(2) and (3) evince an intention to exclude certain matters from the exclusive coverage of the WR Act including, relevantly, long service leave. 61 When considered in this way, this contention effectively raises the same issue as we have already dealt with, that is, whether the Commission's award making power falls within one of the exceptions in ss16(2) and (3). We have already dealt with this issue. Conclusion

62 For the reasons already given, we are satisfied s10 is a law which deals with long service leave for the purposes of s16(2)(c) of the WR Act and, on that basis, s16(1) of the WR Act does not operate to restrict the Commission from making award provisions relating to long service leave. On this basis, we refuse the applicants' application for the declarations they have sought (we note that issues as to the coverage of any award made are reserved as earlier mentioned).

Orders 63 For the reasons we have given, there is no basis to grant the declaratory relief sought by the applicants. The Court orders that the application in Matter No IRC 3146/2006 be dismissed.

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