Consideration
58 It is convenient to refer, in overview, to the scheme of industrial regulation now provided for in the WR Act. It was described by the majority of the High Court in New South Wales v Commonwealth at [7]-[44]. As to s 16, the majority said (at [33]):
Section 16 expresses the intention that the new Act is to apply to the exclusion of a range of State and Territory laws that would otherwise apply in relation to an employer and employee. The excluded laws include a "State or Territory industrial law" of a kind specified, together with an Act of a State or Territory "that applies to employment generally" and has a main purpose of either regulating workplace relations; providing for the determination of the terms and conditions of employment; providing for the making and enforcement of agreements determining the terms and conditions of employment; providing for rights and remedies connected with termination of employment or prohibiting conduct that relates to whether a person is a member of an industrial association. It will be necessary to make further reference to the provisions excluding State and Territory laws when dealing with the arguments on that topic.
59 A feature of that scheme is to limit the role of State legislatures in prescribing legislatively and of State industrial tribunals in prescribing by instruments they make or approve, the wages or salaries and the terms and conditions of employment of employees of constitutional corporations. A declaration that this is a feature of the scheme is embodied in s 16. The validity of that section was considered by the High Court. One attack on its validity concerned the width of its operation which, in turn, depended on the meaning of the words "employee" and "employer" in s 16(1). Western Australia had contended that these words were not limited to constitutional corporations and their employees. The majority rejected this argument and said (at [356]):
Secondly, as Western Australia conceded, the Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 indicated that in s 16(1), the terms "employee" and "employer" were used in their defined senses. Thus the Explanatory Memorandum said of the provisions which now correspond with ss 16, 5(1) and 6(1):
"70. Proposed section [16] would ensure that the [new Act] would operate to the exclusion of present and future State and Territory industrial regimes in their application to employers and employees who would fall within the general constitutional coverage of the [new Act] (that is, employers and employees within the meaning of proposed subsections [5(1)] and [6(1)]).
71. This object would be achieved, first, by the exclusion by proposed paragraph [16(1)(a)] of a State or Territory industrial lawin its application to constitutionally covered employers and employees."
(italics in original.) This indicates that s 16(1) was not seen, in its references to "employees" and "employers", as applying to "employees" and "employers" in the general meaning of those expressions. It also indicates that s 16(1) was seen as excluding a State or Territory law only to the extent that it applied to employees and employers in the senses defined in ss 5(1) and 6(1).
60 It can be seen that the majority accepted that the explanatory memoranda could be taken as indicating the scope of s 16 which, in turn, was to result in the WR Act as operating to the exclusion of present and future State and Territory industrial regimes in relation to constitutional corporations and their employees. In fact, there appears to have been very little controversy in the proceedings in the High Court about the effect of the WR Act if the amendments were valid. So much is apparent from the dissenting judgment of Callinan J at [626] and particularly at [632] where his Honour spoke of s 16 and related sections seeking "effectively, if not to obliterate, certainly very greatly to diminish, State industrial power over corporations and their employees". Of importance is that, in these proceedings, it was common ground that, apart from the operation of s 16(2), the New South Wales Commission could not exercise power to make an award prescribing wages or salaries or the terms and conditions of employment of employees of constitutional corporations. This was because the WR Act, subject to the operation of s 16(2), applies to the exclusion of the State Act, which is the Act conferring on the New South Wales Commission its general award making powers.
61 It is against this background that we must consider whether ss 10 and 11 of the State Act, constituting part of a law which generally was no longer to operate on constitutional corporations and their employees, nonetheless had limited operation because it relevantly dealt, in some respect, with long service leave. Sections 10 and 11 do not, in terms, deal with the matter of long service leave. They confer an award making power which is not expressly confined as to subject matter otherwise than by the general description of "conditions of employment". It was not disputed in this appeal that long service leave is a condition of employment.
62 It was common ground that, historically and at the time s 16 was enacted, long service leave was mostly regulated by State Acts. Generally, the principal subject matter of these State Acts was long service leave. Indeed, one such Act of earlier times was the Factories and Shops (Long Service Leave) Act 1953 (Vic) which was discussed by the majority of the High Court in Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529. At 554, the majority said:
The State Act is entirely concerned with prescribing conditions entitling an employee to long service leave with pay and with providing for its commencing period and the rate of pay in respect of the period and with making ancillary and incidental provisions.
63 That Act created an entitlement in every worker to long service leave in respect of continuous employment with one and the same employer. It defined "a worker" and "ordinary pay" and specified that service in the defence forces would not constitute a break in service. It set out the basis on which long service leave was accrued and when leave should be granted by the employer. It provided the ways in which long service leave payments could be made when long service leave was taken or when employment had been terminated before accrued long service leave had been taken. The Act prohibited engaging in employment while on long service leave. Failure to comply with provisions of the Act constituted an offence. It also provided for the settlement by courts of petty sessions of disputes in relation to long service leave and vested the Industrial Appeal Court with appellate jurisdiction in relation to relevant decisions of courts of petty sessions.
64 At 551, the majority of the High Court in Collins v Charles Marshall Pty Ltd said:
The State Act deals with the whole subject of long service leave as it affects employees and employers in Victoria.
It can be seen that the Victorian Act is described as an Act which deals with the subject matter (of long service leave). This description is consistent with the thesis of the appellants, namely that s 16 is intended to preserve only the operation of State Acts which deal directly with the matters enumerated in s 16(3) including long service leave and that ss 10 and 11 not only do not directly deal with long service leave, but do not deal with it at all.
65 The appellants' thesis is, in our opinion, consistent with the overall objectives introduced by the Amending Act and is supported by the language and structure of s 16. In the section, a distinction is drawn between a law which deals with a subject matter (s 16(1)(b) and s 16(2)(c)), and laws which might authorise a tribunal or court to make an order or determination concerning a specified subject matter. Provisions of the latter type are s 16(1)(c) and s 16(1)(d). This suggests a "law deal[ing]" with one of the matters specified in s 16(3) must deal with the matter itself and directly in the sense that the express subject matter of the legislation is the specified matter (or perhaps one of a number of them). On this approach, a law which may authorise a tribunal or court to deal with the subject matter is not a law dealing with the matter. Also, it must be remembered that not only do ss 10 and 11 not deal with long service leave in any direct or obvious way, but the powers they confer might never be exercised to deal with that matter or any of the other matters specified in s 16(3). It is difficult to accept that the Commonwealth Parliament had contemplated that these empowering provisions were "dealing with" those matters in circumstances where none of those matters might be addressed by an award or order made in exercise of the power.
66 The features identified by the respondent and the Attorney-General as contra-indicating the construction for which the appellants contended were s 16(1)(b), s 16(2)(a) and s 17(1) together with the explanatory memoranda. However, in our opinion, these provisions do not persuasively establish that ss 10 and 11 "deal", in any relevant sense, with the matters specified in s 16(3) and long service leave in particular. The proviso concerning long service leave in s16(1)(b) only serves to illustrate that the law which was excluded by that paragraph was a law dealing with any type of leave except the specific type of leave which a law might continue effectively to deal with because of the combined operation of s 16(2)(c) and s 16(3)(f), namely long service leave. Section 16(1)(b) says nothing about what is a law dealing with one of the specified matters except, as discussed earlier, by suggesting a legislative intention which excludes ss 10 and 11 as being laws of that character.
67 Similarly s 16(2)(a) serves to illustrate the Commonwealth Parliament's intention of excluding, for present purposes, any operation of the State Act by permitting or providing for the continued operation of a law dealing with discrimination or equality in the workplace unless it was dealt with in a State industrial law such as the State Act. This provision really says nothing about whether a law deals with one of the specified matters only if it deals with it directly as the legislative subject matter or whether the law can deal with the matter indirectly.
68 Section 17 raises different considerations. The appellants, the respondent and the Attorney-General pointed out that existing State awards are transmogrified, for the purposes of Federal law and to the extent that they apply to constitutional corporations, by Part 3 of Schedule 8 into NAPSAs, instruments which derive their present legal effect from the WR Act. It appears to be correct that s 17 has either no field of future operation or a limited field of future operation in relation to State awards if s 16 excludes, in all respects, the award making powers of State industrial tribunals under State industrial laws, as defined in relation to constitutional corporations and their employees. That would be because existing State awards binding constitutional corporations are dealt with by Part 3 and there would be no State awards concerning constitutional corporations made in the future. Federal awards apply to employers which are not constitutional corporations because they have effect as transitional awards and there is a specific provision giving them paramountcy over State awards: see cl 60 of Schedule 6 to the WR Act.
69 However, s 17(1) replicates a provision of a similar character which has existed in Federal industrial law since 1904: see s 30 of the Conciliation and Arbitration Act 1904 (Cth) as enacted. While it has been doubted whether it is necessary (see, for example, Collins v Charles Marshall Pty Ltd at 549), this provision has provided continuously a statutory mechanism in Federal industrial laws to ensure paramountcy of awards made under those laws. Section 17(1) would at least have the function of putting beyond doubt the contemporary and continuing paramountcy of Federal awards over State awards in relation to any right or liability under a Federal award before the Amending Act took effect in 2006. Section 17 does not, in our opinion, provide a clear pointer of substance to State industrial tribunals continuing to have some, though limited, award making powers in relation to constitutional corporations and their employees. In addition s 17(1) would be efficacious in declaring the paramountcy of Federal awards over State acts. For example, by s 527, the WR Act preserves an award term in relation to long service leave in a Federal award. That term would prevail over State long service leave provisions, such as the Long Service Leave Act, which would remain effective because of s 16(2).
70 In our opinion, the Industrial Court of New South Wales erred in concluding that New South Wales Commission has power to make an award binding a constitutional corporation in relation to long service leave. The appeal should be allowed and a declaration made of the type sought by the appellants though limited, in terms, to the constitutional corporations to which the proposed award was intended to apply.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.