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: