Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd, Re [2007] NSWIRComm 50

Acts Interpretation Act 1901 (Cth) Administrative Decisions Tribunal Act 1997 (NSW) Commonwealth Powers (Industrial Relations) Act 1996 (Cth) Evidence Act 1995 (NSW) LEGISLATION CITED: Industrial Relations Act 1996 (NSW) Interpretation Act 1987 (NSW) Judiciary Act 1903 (Cth) Workplace Relations Act 1996 (Cth) Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) Workplace Relations Regulations 1996 (Cth)

Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564 Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349 Australian Competition and Consumer Commission v FFE Building Services Ltd and Others (2003) 130 FCR 37 Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Another (1984) 59 ALR 754 Clough v Leahy (1905) 2 CLR 139 Environmental Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Fencott and Others v Muller and Another (1983) 152 CLR 570 Fountain and Another v Alexander and Another (1982) 150 CLR 615 Fox v GIO Australia Ltd (2002) 56 NSWLR 512 General Steel Industries Inc. v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125 Greiner v Independent Commission Against Corruption, Moore v Independent Commission Against Corruption (1992) 28 NSWLR 125 Griffin David James v Sogelease Australia Limited & Ors [2002] NSWCA 421 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 Huddart Parker & Co Proprietary Limited v Moorehead, Appleton v Moorehead (1909) 8 CLR 330 Joye v Beach Petroleum NL and Another (1996) 67 FCR 275 Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 McGuiness v The Attorney-General of Victoria (1940) 63 CLR 73 Murphy v R (1985) 158 CLR 596 CASES CITED: Nagle (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 New South Wales and Others v Commonwealth (2006) 231 ALR 1 O'Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356 Pidoto and Others v The State of Victoria (1943) 68 CLR 87 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Pyneboard Proprietary Limited and Others v Trade Practices Commission and Another (1983) 152 CLR 328 Re Adams and the Tax Agents Board (1976) 12 ALR 239 Re Australian Education Union and Others; Ex parte The State of Victoria and Another (1995) 184 CLR 188 Re Dingjan and Others; Ex Parte Wagner and Another (1995) 183 CLR 323 Re Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining and Energy Union and Another v The Commonwealth of Australia (2000) 203 CLR 346 Rocks and Another v The Uniting Church in Australia and Others (2002) 117 IR 451 Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/a Dymocks Parramatta (2001) 103 IR 390 Skilltech Consulting Services Pty Ltd and The Australian Workers' Union, New South Wales [2007] NSWIRComm 6 The Lord Mayor Councillors and Citizens of the City of Melbourne v The Commonwealth and Another (1947) 74 CLR 31 The Lord Mayor Councillors and Citizens of the City of Melbourne v The Commonwealth and Another (1947) 74 CLR 31 The State of New South Wales and Others v The Commonwealth - The Incorporation Case (1990) 169 CLR 482 The State of Victoria and Others v Australian Building Construction Employees' and Builders Labourers' Federation and Others (1982) 152 CLR 25 The State of Victoria v The Commonwealth (1970) 122 CLR 353 Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 Unions NSW v Carter Holt Harvey Wood Products Australia Pty Limited and Others (2006) 149 IR 361 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428

COUNSEL ASSISTING Mr M Einfield, QC with Mr A Hatcher of counsel Mr G Boyd Solicitor Assisting with Inquiry

MINISTER FOR INDUSTRIAL RELATIONS Mr S Crawshaw, SC with Mr D Chin of counsel Solicitor: Ms M Rizzo Crown Solicitors Office

TRISTAR STEERING AND SUSPENSION AUSTRALIA Mr N Perram, SC with Mr A Moses of counsel LEGAL REPRESENTATIVES: Solicitor: Mr S Berry Moray & Agnew

AUSTRALIAN MANUFACTURING WORKERS' UNION Mr I Latham of counsel with Mr A Neilson

AUSTRALIAN WORKERS' UNION Mr J Wallace

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Mr M Murphy

CORAM: WALTON J, Acting President BOLAND J RITCHIE C

INQUIRY INTO MATTERS RELATING TO THE AVAILABILITY OF WORK AT TRISTAR STEERING AND SUSPENSION AUSTRALIA LTD

Reference by the Minister for Industrial Relations pursuant to section 146(1)(d) of the Industrial Relations Act 1996 (NSW)

1 On 9 February 2007, the Minister for Industrial Relations referred to the Industrial Relations Commission of New South Wales, pursuant to s 146(1)(d) of the Industrial Relations Act 1996 ("the IR Act"), a Reference in the following terms:

Pursuant to s l46(1)(d) of the Industrial Relations Act 1996 the Minister for Industrial Relations hereby refers to the Industrial Relations Commission of New South Wales for inquiry and report to the Minister on: (1) The facts and circumstances, including the historical and background facts and circumstances relating to the availability of work or the continuing availability of work at the operation of Tristar Steering and Suspension Australia Ltd at Carrington Road, Marrickville with regard to, but not limiting the generality of' the foregoing, the current dispute between the employees and unions at that site, and the employer or employers operating the site, concerning redundancy or termination pay.

(2) The availability and adequacy of remedies under Commonwealth and NSW laws, including but not limited to determination of entitlements and dispute resolution, where there is an issue relating to the availability of work or the continuing availability of work, or redundancy or termination pay, at the workplace.

(3) Recommendations as to utilisation of or changes to Commonwealth and NSW laws, including removing any obstacles, jurisdictional or otherwise, where there is an issue relating to the availability of work or the continuing availability of work, or redundancy or termination pay, at the workplace. 2 The Inquiry required to be conducted by the Commission pursuant to the Reference commenced with a directions hearing on 21 February 2007. The following parties sought and were granted leave to appear on that day ("the parties"): · The Minister · Tristar Steering and Suspension Australia Limited · Australian Manufacturing Workers Union ("AMWU") · Australian Workers Union ("AWU") · Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia · Unions NSW 3 At the directions hearing, Tristar gave notice that it wished to make submissions, at an appropriate time but before any further hearings of the Inquiry, to the following effect: (i) that the Commission had no jurisdiction to conduct the Inquiry as a result of s 16(1) of the Workplace Relations Act 1996 (Cth);

(ii) alternatively, that the Inquiry should be adjourned until the determination of proceedings against Tristar recently commenced in the Federal Court of Australia by the Office of Workplace Services ("OWS"). 4 The Commission acceded to Tristar's application that it hear these submissions prior to any further hearings of the Inquiry. Tristar was directed to file and serve upon the other parties and Counsel Assisting the Inquiry written submissions in support of its jurisdictional contention and stay application (including full specification of the orders sought) together with any evidence directly supporting its orders and contentions on or before 5.00 pm on 23 February 2007. The other parties were directed to file and serve any written submissions and evidence on or before 12.00 noon on 27 February 2007. The matter was listed for hearing on 28 February 2007. Orders sought by Tristar

5 The written submissions filed on behalf of Tristar identified the following orders sought by it: (i) An order that the Commission decline to inquire into and report on the first term of reference on the basis that it does not have jurisdiction to do so; (ii) In the event that the Commission interprets the second and third Terms of Reference so as to require the Commission to inquire into any aspect of the relationship between Tristar and its employees, an order that the Commission decline to inquire into and report on the second and third Terms of Reference on the basis that it does not have jurisdiction to do so; (iii) An order that the Commission stay the inquiry into the first term of reference until the determination of proceedings commenced by the Office of Workplace Services against Tristar in matter number NSD 232 of 2007.

We will refer to the application for the first and second orders above as the "jurisdictional application" and the application for the third order above as the "stay application". The hearing of the applications

6 Counsel appearing for Tristar, Mr N Perram SC, relied upon the affidavit of Leigh Marian Turner sworn 26 February 2007 and the affidavit of Simon Lawrence Berry sworn 27 February 2007. Neither of these deponents was required to attend for cross-examination by any party. 7 Counsel appearing for the AMWU and AWU, Mr I Latham, relied upon the affidavit of Martin Schutz affirmed 27 February 2007. Mr Schutz was not required to attend for cross-examination by any party.

8 Submissions were made by Mr Perram for Tristar, Mr Latham for the AMWU and AWU, and by the Minister, for whom Mr S Crawshaw SC and Mr D Chin of counsel appeared. Jurisdictional Application

9 Two threshold questions arose with respect to Tristar's jurisdictional application:

(i) Was there a requirement for notices to be given to the Attorneys-General of the Commonwealth and the States pursuant to s 78B of the Judiciary Act 1903 (Cth) before the Commission could proceed to hear the jurisdictional application?

(ii) Did the Commission have power to determine the jurisdictional application? 10 As to the first of these questions, Tristar submitted that there was no requirement for notices to be issued under s 78B of the Judiciary Act. No other party contended otherwise. 11 We accept Tristar's submission in this respect. Section 78B of the Judiciary Act provides: Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. 12 It is apparent that s 78B only has application with respect to a "federal court" or a "court of a State or Territory". The Commission as currently constituted is not a court, and accordingly no notice is required under s 78B: Unions NSW v Carter Holt Harvey Wood Products Australia Pty Limited and Others (2006) 149 IR 361 at [8]-[9]. In any event, the evidence established that Tristar did, on or about 26 February 2007, send written notice of the proceedings to each of the Commonwealth and State Attorneys-General. Copies of the notices are annexed to the affidavit of Mr Berry. None of the Attorneys-General so notified sought to appear in the proceedings. 13 In relation to the second question, Tristar submitted, notwithstanding that its jurisdictional application involved the resolution of a constitutional question, that the Commission had jurisdiction to determine such a question about the limits of its own authority provided that its decision would not be final and binding. No party made any contrary submission. 14 We accept Tristar's submission in this respect. Section 30 of the Judiciary Act provides that all matters arising under the Constitution or involving its interpretation are within the original jurisdiction of the High Court of Australia. Section 39(2) of the Judiciary Act provides that the "several Courts of the States" are invested with federal jurisdiction in all matters in which the High Court has original jurisdiction, subject to identified conditions and restrictions which are not presently relevant. The earlier stated conclusion that the Commission as currently constituted is not a court has the consequence that s 39(2) does not confer upon it federal jurisdiction to determine constitutional questions. 15 However, that is not to say that the Commission is not competent to consider and reach an opinion about a constitutional question relevant to its own jurisdiction. This question of the power of administrative tribunals to consider questions going to their jurisdiction was considered by Brennan J (as he then was), sitting as President of the Administrative Appeals Tribunal, in Re Adams and the Tax Agents Board (1976) 12 ALR 239. At 240, his Honour said: An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.

16 A similar approach was taken by a Full Bench of this Commission in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/a Dymocks Parramatta (2001) 103 IR 390 at [13]. The Commission held that not only did it have the power to determine issues of jurisdiction, it had a duty to do so where either a challenge to jurisdiction was made or it appeared on the face of the record that a jurisdictional issue arose. 17 In Re Adams, Brennan J went on to say in relation to jurisdictional questions involving the constitutional validity of legislation (at 245): In Australia there is a reluctance on the part of administrative bodies to pass upon the constitutional validity of statutes: see Case D47 (72 A.T.C. 272), a decision of No. 2 Tax Board of Review. If it be allowed that there is, in Australian legal theory, a competence in an administrative body to consider and form an opinion upon the constitutional validity of a statute in order that that body may act in accordance with law, the competence to form the opinion and to be informed on the question of constitutional invalidity should not be treated as a jurisdiction invested in the administrative body to reach a conclusion having legal effect. It is merely a means which the administrative body may adopt in moulding its conduct to accord with the law. 18 The above passage was taken by Spigelman CJ in Attorney-General v 2UE Sydney Pty Ltd [2006] NSWCA 349 at [35] and [37] to mean that it is permissible for an administrative body to consider a challenge to the constitutional validity of legislation, albeit that it would do so only reluctantly. His Honour concluded at [80]: A State tribunal may, in my opinion, consider the Constitutional validity of State legislation in the course of the exercise of its statutory powers. However, no State tribunal can exercise the judicial power of the Commonwealth. 19 Spigelman CJ concluded at [29] that for an administrative tribunal to engage in a function of legal interpretation in the course of exercising its jurisdiction, it was not necessary for there to be an express statutory provision conferring such a function (although in respect of the tribunals then under consideration, namely the Administrative Decisions Tribunal and the Appeal Panel, such a provision did exist in s 115(1)(b) of the Administrative Decisions Tribunal Act 1997). Hodgson JA concluded (at [98]-[100]) that that provision, which required regard to be had to section 31 of the Interpretation Act 1987, had the effect of requiring the tribunals to consider any constitutional limits on the legislative power of the New South Wales Parliament in construing legislation. Ipp JA agreed with both Spigelman CJ and Hodgson JA. 20 An analogous provision is contained in the IR Act. Section 175 of the IR Act provides: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 21 We would regard the words "any question concerning the interpretation, application or operation of any relevant law" as providing express authority for the Commission in a proceeding (including an inquiry pursuant to s 146(1)(d)) to consider and determine a question going to the constitutional validity of a statutory provision conferring jurisdiction upon the Commission. However, s 175 could not validly confer upon the Commission the judicial power of the Commonwealth with respect to constitutional questions. Accordingly, any determination made by the Commission under s 175 with respect to a constitutional question will constitute an expression of opinion by the Commission as to the limits of its own authority in the context of the present Inquiry, rather than a final and binding judicial decision. 22 We propose to consider and determine the jurisdictional application in accordance with the above-stated principles.

23 Tristar's jurisdictional application founds upon the contention that there is an operational inconsistency, and also perhaps a "cover the field" inconsistency, between s 16(1) of the WR Act and the proposed operation of s 146(1)(d) of the IR Act having regard to the Terms of Reference. Insofar as the Terms of Reference have a connection with Tristar and its employees, it was argued, s 109 of the Commonwealth Constitution must render invalid the IR Act provision as enlivened by the Terms of Reference (although, as we discuss later, the jurisdictional application on close analysis did not involve a challenge to the Terms of Reference in their entirety).

24 Tristar submitted, in particular, that the phrase "in relation to" as used in s 16(1) of the WR Act has a necessarily wide meaning; it is satisfied by a connection between the two things in question (see Murphy v R (1985) 158 CLR 596 at 611), and should not be read down unless there are compelling reasons to do so (see Fountain and Another v Alexander and Another (1982) 150 CLR 615 at 629). Tristar further submitted that the relevant connection existed here, because the Terms of Reference demanded an inquiry into the relationship between Tristar and its employees. 25 Section 16(1) of the WR Act relevantly provides: (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 ....

26 All parties accepted before us that the IR Act is a "State ... industrial law". Sections 16(2) and (3) provide for various exceptions to the operation of s 16(1), and ss 16(4) and (5) confer a regulation-making power on the relevant Minister with respect to the operation of s 16(1).

27 The references in s 16(1) to "employee" and "employer" are references to those words as defined in ss 5(1) and 6(1) of the WR Act respectively: New South Wales and Others v Commonwealth (2006) 231 ALR 1 at [353]-[359]. Section 5(1) of the WR Act provides: (1) In this Act, unless the contrary intention appears: "employee" means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6(1), by an employer, except on a vocational placement. 28 Section 6(1) relevantly provides: (1) In this Act, unless the contrary intention appears: "employer" means: (a) a constitutional corporation, so far as it employs, or usually employs, an individual .... 29 The expression "constitutional corporation" used in s 6(1)(a) is defined in s 4 (1) of the WR Act to mean " a corporation to which paragraph 51(xx) of the Constitution applies".

30 The characterisation of a person as an "employee" within the meaning of s 5(1) essentially depends upon the person being employed by an "employer" within the meaning of s 6(1). Tristar accepted that, for s 16(1) to operate here, it was required to demonstrate that it was an "employer", as defined. It contended that it is such an "employer", because it is a "constitutional corporation", being a "trading corporation" within s 51(xx) of the Constitution. That issue was in contest, and evidence going to it was tendered by the parties. However, for the immediate purpose of our consideration of the construction of s 16(1), we shall proceed upon the assumption that Tristar is a trading corporation such as to bring it within the definition of "employer" in s 6(1). 31 In considering whether s 16(1) of the WR operates to cause invalidity with respect to s 146(1)(d) of the IR Act as enlivened by the Terms of Reference, it is necessary to identify the proper construction to be placed upon s 16(1). The parties before us made differing submissions as to that question of construction. Tristar's submissions, as indicated earlier, focussed upon what it submitted was the wide import of the phrase "in relation to" as used in s 16(1). However, the Minister submitted that the use of the word "apply" in conjunction with the phrase "in relation to" had the result that a State law would need to have direct legal application to a relevant employee or employer in order that it be excluded. 32 In construing the terms of s 16(1), regard must be had to the language, context, general purpose and policy of the WR Act viewed as a whole: see Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Fox v GIO Australia Ltd (2002) 56 NSWLR 512 at [42]-[47]. It is also permissible to have regard to extrinsic material, including the explanatory memorandum and second reading speech relating to the bill, in the circumstances prescribed in s 15AB of the Acts Interpretation Act 1901 (Cth). Further, we can derive assistance in the task of construing s 16(1) from the High Court's decision in New South Wales and Others v Commonwealth (2006) 231 ALR 1, because the High Court majority found it necessary to construe s 16 in order to determine the challenge made to its constitutional validity. 33 The evident purpose of s 16(1) is to establish a legislative field 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. Thus, the construction of s 16(1) will necessarily be guided by the identification of the field which it was intended that the WR Act should cover. The identification of the field is aided by an examination of the objects and the operative provisions of the WR Act. 34 The principal object of the WR Act is (relevantly) stated in s 3 as follows: 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

(c) providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and

(d) ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and

(e) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and

(f) ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of: (i) employee entitlements; and

(ii) the rights and obligations of employers and employees, and their organisations; and (g) ensuring that awards provide minimum safety net entitlements for award-reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level ...

(j) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association ...

(n) .... 35 The "national system of workplace relations" referred to in s 3(b) which is established by the WR Act may broadly be summarised as follows:

(i) Part 2 establishes an Australian Fair Pay Commission with the function of setting minimum wage rates for employees.

(ii) Part 3 establishes the Australian Industrial Relations Commission, with particular powers specified therein.

(iii) Parts 4, 5 and 6 establish the Australian Industrial Registry, the Employment Advocate and Workplace Inspectors.

(iv) Part 7 establishes an Australian Fair Pay and Conditions Standard, which confers rights on employees to receive, and obligations on employers to pay, certain prescribed minimum wage rates and conditions of employment.

(v) Part 8 establishes a regime of workplace agreements which may be entered into by employers and employees (or unions representing employees).

(vi) Part 9 establishes a regime prescribing the circumstances in which employees (and their unions) may lawfully take industrial action, and otherwise sets out prohibitions and sanction applying to employees (and their unions) with respect to the taking of industrial action.

(vi) Part 10 is concerned with the rights and obligations of employees and employers with respect to conditions of employment under awards.

(vii) Part 11 is concerned with the right and obligations of employees and employers where there is a transmission of business.

(viii) Part 12 establishes further minimum entitlements for employees.

(ix) Part 13 establishes processes for the resolution of workplace disputes between employees and employers.

(viii) Parts 14 and 17 are concerned with the enforcement of rights and obligations under the WR Act and sanctions against non-compliance.

(ix) Part 15 is gives certain rights to union officers to enter employer premises in aid of the enforcement of employees' rights and employers' obligations under the WR Act.

(x) Part 16 creates rights and obligations concerning the freedom of association of employees and employers. 36 It is apparent from the principal object and the above summary that the WR Act, looked at as a whole, establishes a workplace relations system which confers rights and imposes obligations upon employees and employers vis-a-vis each other and otherwise seeks to regulate the relations of employers and employees. Characterised in this way, the field which the WR Act seeks to cover, to the exclusion of State laws, can be identified as the prescription of the rights and obligations of employees and employers (as defined in ss 5(1) and 6(1) respectively) and the regulation of the workplace relations of such employees and employers.

37 Thus, in New South Wales v Commonwealth, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ accepted (at [370]) the description of this field proffered by the Commonwealth (set out at [369]): The Commonwealth submitted that the relevant field was to be identified, not by reference to the areas regulated by State law, but by reference to the terms of the Commonwealth law. It was concluded above that the Commonwealth has power to regulate the relationships between employees and employers as defined in ss 5(1) and 6(1) by reliance on the heads of power referred to in paras (a), (e) and (f) of the definition of "employer" in s 6(1). The Commonwealth submitted that it was open to the Parliament to identify the rights and obligations arising out of those relationships of employees and employers as a field, and to indicate an intention to cover that field (or, as here, part of it, because of the limitations to s 16(1) and the operation of s 16(20 and (3)). (emphasis added)

Elsewhere (at [361]) the High Court majority said: The general context is that the new Act deals with the rights and obligations of "employees" and "employers' - generally, but not always, in the sense defined in ss 5(1) and 6(1). The particular context is that s 16(1) (subject to the matters listed in s 16(2) and (3)) applies the new Act to the exclusion of certain kinds of State and Territory laws so far as they would otherwise apply to employees and employers as defined in ss 5(1) and 6(1). 38 Section 16(1) operates to exclude the operation of State laws only "so far as they would otherwise apply in relation to an employee or employer". Those words, so far as they permit, are to be construed consistently with the purpose of the WR Act as a whole as earlier identified.

39 The breadth of the expression "in relation to", standing alone, may be acknowledged. However, in order to determine whether the relationship must be direct or substantial, or whether an indirect or less than substantial connection will suffice, it is necessary to consider the statutory context in which the phrase appears: see Joye v Beach Petroleum NL and Another (1996) 67 FCR 275 at 285 per Beaumont and Lehane JJ and the decisions cited therein. An example of the statutory context requiring a direct connection is contained in O'Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356. In that case, the Court was required to interpret a statutory provision that conferred exclusive jurisdiction on a court "in all actions, suits and proceedings arising in relation to mining or to any mining tenement". Toohey and Gaudron JJ said (at 374): Although 'in relation to' is an expression of broad import, in context with 'arising' it presupposes a direct connexion between a presently existing action, suit or proceedings and mining or a mining tenement, not merely an incidental connexion.

Dawson J reached a similar conclusion (at 367). 40 The general context of the WR Act which we have earlier described - namely an intended exclusive field of operation concerning prescription of the rights and obligations of employees and employers (as defined) and the regulation of their workplace relations - would suggest that an approach which requires a direct legal effect upon employees and employers rather than merely an indirect connection to them would be preferred. 41 Moreover, Tristar's submission as to the breadth of the phrase "in relation to" does not pay sufficient attention, in our view, to the use of the word "apply" in s 16(1). Indeed, the question of what it means for a State law to "apply" in relation to something appears to us to be the critical issue. The ordinary meaning of "apply" was recently considered by a Full Bench of this Commission in Skilltech Consulting Services Pty Ltd and The Australian Workers' Union, New South Wales [2007] NSWIRComm 6. In that matter, a question arose as to whether, in relation to a particular group of employees, a State award which had common rule application to the work performed by those employees "applied" to them in circumstances where they had been engaged pursuant to Australian Workplace Agreements which had effect under the WR Act. The Full Bench said (at [32]-[33]): 32 The Oxford English Dictionary (2nd Ed) contains the following relevant definitions of the verb "to apply", both of which emphasise that the contact between the subject and object is practical, rather than theoretical or suspended in some way: 1. To put a thing into practical contact with another. ... 8. To bring (a law, rule, test, principle, etc.) into contact with facts, to bring to bear practically, to put into practical operation. (Cf. to apply a foot-rule to a wall, a test to a mineral, a principle to actions.). 33 This interpretation of the verb "to apply" in a legislative context was adopted by the majority of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v O.P.S.E.U., Local 324 [2003] 2 SCR 157 at 182-183 and is supported by IRC v Clifforia Investments [1963] 1 All ER 159 (in that the High Court held that "applies" is a use of the historic present and means applies or applied at the relevant time) and the decision of the Court of Appeal in British Transport Commission v London County Council [1953] 1 QB 736.

34 In our view, any alternative interpretation would strain the clear language of the section. While the AWAs operate, the Award does not apply to the employees of the Company. In those circumstances there is no right of entry under s 298, nor any corresponding power under s 302 to enliven the orders of Sams DP.

42 Thus, Skilltech was decided on the basis that the State award "applied" to the employees only if it actually regulated their conditions of employment at the relevant time. It was not sufficient that the State award covered the type of work they were doing in a theoretical sense without actually having any operative effect upon them. 43 In its context, the phrase "in relation to" in s 16(1) is used conjointly with the word "apply". The conjoint phrase requires, in our view, that the connection between the law and employees or employers be a direct one; that is, the law must be one which confers rights and imposes obligations on employees/employers or otherwise regulates their workplace relations. This construction is consistent with the meaning of "apply" as discussed above, and also with the exclusion of State laws from the relevant field we have identified earlier.

44 The construction of s 16(1) which we prefer is supported when resort is had to relevant extrinsic materials, being the second reading speech and explanatory memorandum accompanying the Workplace Relations Amendment (Work Choices) Bill 2005 ("the Bill"). In the second reading speech given by the Hon. Kevin Andrews, then Minister for Employment and Workplace Relations, to the House of Representatives on 2 November 2005 (Hansard at 18), the Minister said: Single national system We live in an integrated national economy and it makes no sense whatsoever to adopt anything other than a national approach to workplace relations. By using a combination of constitutional heads of power, Work Choices will cover up to 85 per cent of employees across Australia.

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. (emphasis added)

The emphasised passage demonstrates that only State laws which regulated relevant employees and employers were intended to be rendered invalid by the Bill. 45 The explanatory memorandum (at [70]) issued in relation to the Bill stated (in respect of what became s 16) that the section: ... would ensure that the amended WR 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 amended WR Act... . (emphasis added)

The emphasised words contemplate that relevant State laws would be excluded only so far as they had direct legal application to employers and employees. 46 That this is so is demonstrated by the following passage (with emphasis added) in the explanatory memorandum, which is also concerned with the intended effect of s 16(1) (as subsection 7C(1) became): 76. The Commonwealth Powers (Industrial Relations) Act 1996 (Vic) would not be excluded by the operation of proposed subsection 7C(1). That Act would not itself regulate workplace relations and would not be a State or Territory industrial law . In any case, subsection 7C(1) would exclude State and Territory laws only so far as they would otherwise apply in relation to a constitutionally covered employee or employer. The referral of matters to the Commonwealth by the Victorian Commonwealth Powers Act does not apply to employees or employers whether constitutionally covered or not (it provides powers to the Commonwealth) but, in any case, the Victorian Commonwealth Powers Act refers matters only to the extent not otherwise within Commonwealth legislative power (and constitutionally covered employers and employees are within Commonwealth legislative power). 47 It can be seen that the Act referred to was regarded as not excluded on a number of alternative bases. One of these bases was that, merely because the Act was concerned with the referral of powers to the Commonwealth, it did not mean that the Act had application to employees or employers to be covered by the WR Act. This presupposes that direct application by way of regulation of employees and employers is necessary to meet the criterion for exclusion in s 16(1).

48 In construing s 16(1) of the WR Act, it is also necessary to take into account questions concerning its constitutional validity. This is so because s 15A of the Acts Interpretation Act (Cth) provides that "Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth ... ". As Tristar has submitted, s 16(1) was determined in New South Wales v Commonwealth to be a valid law, on the basis that it was, relevantly, a law with respect to corporations under s 51(xx) of the Constitution: see [362]-[363]. However, that conclusion must be understood in the context of the High Court's characterisation of the scope of the corporations power. In the majority judgment at [177]-[178], Gaudron J's formulation of the scope of the corporations power in Re Dingjan and Others; Ex Parte Wagner and Another (1995) 183 CLR 323 at 364-5 and Re Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining and Energy Union and Another v The Commonwealth of Australia (2000) 203 CLR 346 at [83] was expressly approved. In the latter decision, Gaudron J characterised the scope of the corporations power in the area of workplace relations as extending 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. 49 Thus, in Re Pacific Coal, Gaudron J determined (at [84]) that a law was not constitutionally supported by s 51(xx) of the Constitution because it did not operate to prescribe the industrial rights and obligations of corporations and their employees or to regulate the means by which they are to conduct their industrial relations. 50 The construction of s 16(1) for which the Minister contends satisfies the requirements of s 15A of the Acts Interpretation Act, in that it ensures that s 16(1) does not exceed the legislative power contained in s 51(xx) of the Constitution (as that power has now been characterised by the High Court). By contrast, Tristar proffers a construction of s 16(1) which has it applying to exclude a law such as s 146(1)(d) of the IR Act, which neither prescribes the industrial rights and obligations of corporations and their employees nor the means by which they are to conduct their industrial relations. Such a construction would, at the least, endanger the constitutional validity of s 16(1). The adoption of such a construction would be contrary to s 15A of the Acts Interpretation Act when there is an alternate construction available which would ensure validity. 51 For the above reasons, we prefer the construction of s 16(1) of the WR Act advanced by the Minister.

52 Section 146(1)(d) is a provision which plainly facilitates the exercise of executive power. It does so by providing a mechanism by which the Minister may obtain information and/or recommendations as to matters referred to the Commission. Neither s 146(1)(d) nor the Commission (in the exercise of the powers to conduct the Inquiry pursuant to that section) imposes or confers any obligation or right upon employers or employees. Nor does it otherwise operate to regulate relations between employers and employees. No order binding upon an employer or employee can result from the Inquiry. Any report ultimately produced as a result of an Inquiry initiated under s 146(1)(d) will not have legal consequences, since it will not create or affect legal rights or obligations: see Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564 at 580 per Mason CJ, Dawson, Toohey and Gaudron JJ; Greiner v Independent Commission Against Corruption, Moore v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 148 per Gleeson CJ.

53 Accordingly, having regard to the construction of s 16(1) we have adopted, there can be no direct or indirect inconsistency between s 16(1) of the WR Act and s 146(1)(d) of the IR Act as enlivened by the Terms of Reference. Although it is clear that the IR Act is a "State or Territory industrial law" for the purpose of s 16(1)(a) (see the definition of that phrase in s 4(1) of the WR Act), s 146(1)(d) of the IR Act is not caught by s 16(1) of the WR Act because, for the reasons given, it does not "apply" to Tristar or its employees in the manner necessary to attract the operation of s 16(1). That is, there is not the necessary connection between an inquiry under s 146(1)(d) and the regulation of employers and employees.

54 In submissions, Tristar only identified one way in which the holding of the Inquiry might result in legally binding orders being made in relation to it or its employees - namely by the use of the powers contained in s 164(1) of the IR Act to compel the attendance of witnesses and the production of documents. Strictly speaking, that submission could not form a proper basis for the grant of Tristar's jurisdictional application at this stage, since no summons has yet been issued under s 164(1) against Tristar or any of its employees, nor is it necessarily the case that any such summons will be issued if the Inquiry proceeds. However, we think convenient that we express our view as to that submission now.

55 We reject the submission for the following reasons: (i) A challenge to the validity of s 164(1) is not the same thing as a challenge to the validity of the holding of an inquiry under s 146(1)(d). That is, taking Tristar's submission at its highest, even if s 164(1) is caused to be invalid by reason of s 16(1) of the WR Act, that does not render s 146(1)(d) invalid so as to prevent the continuation of the Inquiry. The only consequence would be that the Inquiry could not use coercive powers for the production of evidence.

(ii) In any event, the use of s 164(1) powers in connection with an otherwise valid Inquiry held under s 146(1)(d) is not prevented by s 16(1) of the WR Act. Any summonses issued against Tristar or any of its employees pursuant to s 164(1) would not constitute obligations binding upon them in their respective capacities of employer and employee. Rather, summonses would be issued, only as an aid or ancillary to the conduct of the Inquiry, to Tristar and/or its employees in their capacity as persons able to provide evidence relevant to the Terms of Reference. It is clear from the definition of "employee" in s 5(1) of the WR Act ("an individual so far as he is employed, or usually employed") and the definition of employer in s 6(1) ("so far as it employs, or usually employs") that s 16(1) only refers to employees and employers in their capacity as such, not in any other capacity. 56 The conclusions we have reached above as to the construction of s 16(1) of the WR Act and the question of inconsistency have the result that Tristar's jurisdictional application must fail, and we so find. Although it is not strictly necessary, as a consequence, to give detailed consideration to the other submissions advanced by the Minister and the AMWU and the AWU against the jurisdictional application, we propose to make some short comments in relation to those submissions.

57 As earlier noted, there was a contest between the parties as to whether, as a matter of fact, Tristar is currently a trading corporation (so as to be an "employer" for the purpose of s 16(1)). Tristar relied upon its annual report for the year ended 30 June 2006 (annexed to the affidavit of Ms Turner) to demonstrate that, at least during the period covered by that report, it had been engaged in trading activities. It also relied upon a copy of its memorandum of association (annexed to the affidavit of Mr Berry). That memorandum of association appears to be of some antiquity, since the name of the company referred to in the memorandum, "Eaton Valves (Aust) Limited" has not been the name of the company since 1953. The objects stated in the memorandum, it was submitted, demonstrate that the company was established for the purpose of engaging in trading activity.

58 The AMWU and the AWU relied upon the affidavit of Mr Schutz, an official of the AMWU. That affidavit annexed various correspondence to and from Tristar which, among other things, suggested that Tristar had by mid-2006 lost or come to the end of all its supply contracts and had no other contracts extending beyond the end of 2006. The AMWU and the AWU submitted that there was no evidence before the Commission demonstrating that Tristar was currently engaged in any trading activities, and that accordingly its jurisdictional application should be dismissed.

59 The Minister also submitted that the evidence relied upon by Tristar did not demonstrate that it is currently trading. However, the Minister also pointed to an apparent overlap between the question whether Tristar is currently a trading corporation and Term of Reference 1, which required an examination of the availability of work at Tristar. By reference to this overlap, the Minister submitted that, until the full facts and circumstances relating to Tristar's current and future trading position were known, it might be premature to decide the jurisdictional question.

60 In normal inter partes proceedings, it is regarded as desirable that a threshhold objection to the jurisdiction of a court or tribunal be heard and determined as early as circumstances conveniently admit so that the court or tribunal does not embark on a hearing which it lacks the authority to conduct. However, it will normally not be the appropriate stage for a jurisdictional objection to be heard and determined unless the facts, either established by evidence or plainly agreed in terms, are such as to enable the court or tribunal to reach a clear and final decision on the question: see General Steel Industries Inc. v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125 at 128 per Barwick CJ; Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443; Nagle v (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 at 11; Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447-8.

61 This is, of course, not an inter partes proceeding. However, there would seem to be no good reason why the principles referred to above should not guide the conduct of this Inquiry. The matters contained in the Terms of Reference, having been referred by the Minister pursuant to s 146(1)(d) of the Act, the Commission would not cease to inquire and report upon those matters unless it were clearly established that it had no jurisdiction to do so.

62 However, the question whether the evidence establishes that Tristar is a trading corporation is a difficult one. The business activities of a corporation will signify whether it is a trading corporation: see Re Dingjan and Others; Ex Parte Wagner and Another (1995) 183 CLR 323 at 365 per Gaudron J, cited with approval in New South Wales v Commonwealth at [177]-[178]. If that were the sole basis for determining whether a corporation was a trading corporation, then the prematurity point would be made out. There is as yet no probative evidence before us concerning the current activities of Tristar, and the Inquiry itself has been initiated in the context of a public controversy which turns, at least in part, on the question whether Tristar is currently engaged in any business activity at all.

63 However, Tristar submits that it may be characterised as a trading corporation purely on the basis of its memorandum of association, regardless of whether it is currently engaged in any trading activity. To that end, it relied upon Fencott and Others v Muller and Another (1983) 152 CLR 570. In that case, the High Court held by majority (Mason, Murphy, Brennan and Deane JJ) that a company which had never engaged in trading or financial activities, or indeed in any activities at all, could be characterised as a trading or financial corporation by reference to its objects contained in its memorandum and articles of association. Mr Perram submitted that, by analogy, a corporation which had previously engaged in trading activities but had ceased to do so would still be characterised as a trading corporation if its objects demonstrated that that it had been established for the purpose of trading.

64 The difficult question which arises here is whether Fencott v Muller is a decision which is to be read as confined to its particular fact situation, or whether it stands for a general proposition that the objects of a corporation form a proper basis for the characterisation of that corporation in any circumstances where it does not engage in any relevant activity. There is some basis for thinking that Fencott v Muller was decided on a confined basis, having regard to the following passage in the judgment of Mason, Murphy, Brennan and Deane JJ at 602: While its constitution will never be completely irrelevant, it is in a case such as the present where a corporation has not begun, or has barely begun, to carry on business that its constitution, including its objects, assumes particular significance as a guide.

65 Further, in The State of New South Wales and Others v The Commonwealth - The Incorporation Case (1990) 169 CLR 482, Mason CJ and Brennan, Dawson, Toohey, Gaudron and McHugh JJ said (at 503): The scheme of the Corporations Act is based upon an apparent acceptance of the view that the character of a company as a trading or financial corporation is to be determined by the nature of its activities, either actual or intended. It is unnecessary in this case to embark upon an examination of the authorities dealing with this topic - see, e.g., State Superannuation Board v. Trade Practices Commission (1982) 150 CLR 282; Fencott v. Muller (1983) 152 CLR 570 - but it may be observed that the limitation imposed upon the reach of s.51(xx) by the requirement that, in the case of domestic corporations, they be of a trading or financial character, would create undeniable difficulties if that paragraph were to be construed as extending to the incorporation of companies. The fact that the character of a corporation may vary, so that it may be at one time a trading or financial corporation and not at another , makes it less likely at least that s.51(xx) was intended to confer power upon the Commonwealth to incorporate companies over which its power of regulation might fluctuate, possibly without knowledge upon either side. (emphasis added)

66 The above passage, which is predicated on the proposition that the character of a corporation may vary over time - presumably as a result of a change in its activities - is difficult to reconcile with Tristar's submission, which effectively proposes that the purpose for which a corporation is formed, as demonstrated by its objects, will forever after fix its character.

67 However, as Tristar has submitted, there is no basis to suggest that Fencott v Muller does not remain good law (see e.g. New South Wales v Commonwealth at [55]). We would be reluctant in that context to express a view as to the proper approach to be taken to that decision, particularly as we have been able to determine the jurisdictional application on a different basis upon the assumption that Tristar is a trading corporation. Had we not reached the conclusion that Tristar's jurisdictional application be refused for the reasons already stated, we would in any event have determined that the jurisdictional application was premature, given the absence at this stage of the evidence as to Tristar's current activities.

68 The Minister submitted that, to the extent s 16(1) of the WR Act might be construed as rendering inoperative s 146(1)(d) of the IR Act as enlivened by the Terms of Reference, s 16(1) is invalid. This follows, it was contended, because s 16(1) would exceed the implied limitation on Commonwealth legislative power which prohibits laws of general application that operate to destroy or curtail the continued existence of the States or their capacity to function as governments. This submission was founded on decisions such as Re Australian Education Union and Others; Ex parte The State of Victoria and Another (1995) 184 CLR 188, The State of Victoria v The Commonwealth (1970) 122 CLR 353 ("the Pay-roll Tax case") and The Lord Mayor Councillors and Citizens of the City of Melbourne v The Commonwealth and Another (1947) 74 CLR 31.

69 The Minister submitted that the inquiry power conferred by s 146(1)(d) was an "essential part of the executive government of NSW" in that: (i) the practice of the appointment of inquiries to collect information for use in the administration of the affairs of the polity or for the guidance of Parliament has long been recognised: see Clough v Leahy (1905) 2 CLR 139 at 153 per Griffith CJ;

(ii) modern powers of inquiry have their origin in "an ancient power of the Crown which played a great part in the foundation and development of our legal institutions": McGuiness v The Attorney-General of Victoria (1940) 63 CLR 73 at 94, 99 per Dixon J;

(iii) a commission to inquire and report issued in the exercise of a statutory power is an inquiry on behalf of the executive government for the purpose of government: The State of Victoria and Others v Australian Building Construction Employees' and Builders Labourers' Federation and Others (1982) 152 CLR 25 (" the BLF Case" ) at 156 per Brennan J;

(iv) the power of inquiry is an essential part of the equipment of executive authority: Huddart Parker & Co Proprietary Limited v Moorehead, Appleton v Moorehead (1909) 8 CLR 330 at 377 per O'Connor J, cited in the BLF Case at 148-9 per Brennan J; (v) the power of the Commission to inquire and report under s 146(1)(d) falls squarely within the critical function of the executive government of New South Wales to collect information on industrial and other matters and to use such information in the administration of the affairs of New South Wales and to provide guidance to the Parliament.

70 Whilst there may be some substance to this submission, we see force also in Tristar's submission that the invalidity of s 146(1)(d) it propounds would not alone threaten the existence or operative capacity of the State per se. This is especially so where it has not been demonstrated to us, nor did any party contend, that the State has no other statutory or prerogative inquiry power available to it. However, given that we are able to determine the jurisdictional application on a different basis, we are reluctant to express a concluded view on this issue, particularly as determination of the question would require us to reach a conclusion as to the validity of a Commonwealth statutory provision. Caution is also required because of the paucity of cases in which the implied limitation has been found to operate, with the result that there is little guidance as to the practical circumstances which might attract its operation.

71 It is clear that Tristar's jurisdictional submissions, taken at their highest, could not result in the conduct of the Inquiry as a whole being rendered beyond jurisdiction. Firstly, as Tristar conceded, provided that Terms of Reference 2 and 3 are not read as being confined to Tristar's workplace, then they are not rendered beyond jurisdiction by s 16(1) of the WR Act. No party suggested that Terms of Reference 2 and 3 should be read as confined to Tristar, and there is plainly no basis for them to be read that way.

72 Secondly, as was pointed out by the AMWU and AWU, any aspects of the factual investigation required by Term of Reference 1 which pre-date 27 March 2006 are, irrespective of the effect of s 16(1) of the WR Act, saved by reg 2.1.2(2) of the Workplace Relations Regulations 1996 (Cth). The AMWU and AWU also submitted that, to the extent that the Term of Reference 1 may give rise to an examination of matters concerning workers compensation and occupational health and safety, they would be saved by exceptions to s 16(1) contained in ss 16(2) and (3). Assuming that evidence was adduced to show that there were workers compensation and occupational health and safety matters relevant to Term of Reference 1, this submission seems to us also to be correct.

73 However, Tristar also submitted that, although s 31(2) of the Interpretation Act 1987 (NSW), as applied to the Terms of Reference, would require them to be treated as valid to the extent that they were not beyond power, it was not possible practically to sever those parts of the Terms of Reference which were within power from those parts which (on Tristar's submissions) were beyond power by reason of s 16(1) of the WR Act. Mr Perram referred to Pidoto and Others v The State of Victoria (1943) 68 CLR 87 in this context, and submitted that severance was impermissible if it changed the nature of the Inquiry which the Minister, by the Terms of Reference, intended to initiate.

74 Again, because of the conclusion we have already reached as to the merit of Tristar's jurisdictional challenge, it is strictly unnecessary for us to consider this submission by Tristar. However, we would observe that Pidoto made it clear that, whether or not a law should have residual operation in the event that some part of it was invalid, was ultimately a question of the intention of the law-making body.

75 The only material before us from which the Minister's intention might be inferred is the Minister's reference contained in his letter of 9 February 2007 to the President of the Commission. In his letter, the Minister describes the matter referred as comprising, inter alia: ... an inquiry into the availability and adequacy of remedies generally for the determination of employee entitlements and dispute resolution in circumstances where there is an issue relating to the availability of work at a workplace. The Minister described the situation that has developed at Tristar's premises as forming "[p]art of" that general inquiry.

76 In those circumstances, it seems to us difficult to conclude that severance would not be possible. The precise extent to which and manner in which such severance may be effected need not be determined on this application.

77 For the reasons stated, the Commission rejects Tristar's jurisdictional application.

78 Tristar submitted, in the event that the Commission did not make the orders sought by its jurisdictional application, that the hearing of the Inquiry should, in any event, be stayed on discretionary grounds, until the completion of the OWS proceedings in the Federal Court. Tristar contended that it would face "real difficulty and potential unfairness" by being confronted by "concurrent proceedings which derive from the same alleged conduct".

79 In particular, Tristar identified what it described as a "real danger of injustice" to management employees of Tristar. This was especially so, senior counsel submitted, because there is real doubt as to whether the Commission is a "court" for the purpose of the Evidence Act 1995 (NSW) and whether it could issue a certificate under s 128 of that Act (protecting evidence given by such managerial employees against its use in other criminal or civil penalty proceedings). However, Tristar expressly disowned any contention that the holding of the Inquiry might result in any contempt of the Federal Court arising.

80 The initiating process in the Federal Court proceedings was tendered to the Inquiry by Tristar. It discloses a claim that Tristar has contravened, and continues to contravene, s 792(1) of the WR Act, in that it has injured certain of its employees in their employment, and altered the position of those employees to their detriment, by reason that they were entitled to the benefit of the Tristar Steering and Suspension Australia Limited Certified Agreement 2003 ("the Agreement"). The particulars identify the claimed injury/detrimental alteration as arising from a failure to retrench the employees or otherwise comply with the redundancy provisions of the Agreement, Tristar having made a definite decision in or about June 2006 or some time thereafter that it did not want the job that any of the employees had been doing to be done by anyone.

81 Although there is far from being complete identity of issues between those raised by the Terms of Reference here and those in the Federal Court proceedings, there appears to be at least a factual issue common to both proceedings, namely, whether there is any further work for some or all of the employees of Tristar to perform. The question here is whether the existence of that common factual issue forms a basis for the grant of the stay sought by Tristar.

82 The common law felony-tort rule (whereby any civil proceeding based on a felony was automatically stayed until conviction, acquittal or the establishment of a reasonable excuse for not instituting criminal proceedings) no longer applies in New South Wales. It has been replaced by the inherent jurisdiction to stay civil proceedings based on felonious conduct where, on a proper evaluation of all relevant considerations, it is necessary to do so to prevent abuse of process and achieve justice between the parties: Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 per Kirby P and McHugh JA (as they then were). That discretionary approach has been adopted in the Industrial Relations Commission in Court Session in relation to overlapping unfair contract and contempt proceedings: see Rocks and Another v The Uniting Church in Australia and Others (2002) 117 IR 451.

83 In our view, there is no proper basis for us to exercise our discretion in favour of the grant of the stay sought by Tristar. This conclusion arises out of a number of considerations. First, as we have discussed earlier, this Inquiry will not result in any form of judicial determination; any report ultimately issued will not create or affect legal rights or obligations and, therefore, will be devoid of legal consequences for Tristar. No res judicata or issue estoppel can arise from the Inquiry which could prejudice Tristar in the Federal Court proceedings.

84 Secondly, the Federal Court proceedings have been commenced against Tristar only (not any management employee of Tristar), and they are civil proceedings. There is no evidence to suggest that any proceedings against managerial employees (whether criminal or civil) are contemplated or likely. In that context, the issue of certificates under s 128 of the Evidence Act to prevent the evidence of witnesses being used against them in subsequent criminal or penalty proceedings may not presently arise for consideration.

85 Thirdly, and in any event, if any issue of self-incrimination does arise with respect to any management employee of Tristar who is called as a witness in the Inquiry, the common law privilege against self-incrimination will be able to be invoked provided proper grounds exist. The privilege is available in administrative and investigative proceedings: see Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 408-9 and the cases there cited. A similar privilege exists with respect to protection against possible future penalty proceedings as well as criminal proceedings: Pyneboard Proprietary Limited and Others v Trade Practices Commission and Another (1983) 152 CLR 328 at 336-7; Australian Competition & Consumer Commission v FFE Building Services Ltd and Others (2003) 130 FCR 37 at [12]-[13]. That privilege will be available even if the Commission is unable to issue any certificate under s 128 of the Evidence Act by reason of it not being a court within the meaning of that Act.

86 The Minister made a submission that s 164(1) of the IR Act, which empowers the Commission to exercise the functions of the Supreme Court inter alia in relation to compelling the attendance of witnesses, examining them on oath or affirmation, and compelling them to answer relevant questions, meant that the Commission could exercise the functions of the Supreme Court set out in subsections (2)-(6) of s 128 of the Evidence Act. That submission finds support in the fact that the Dictionary to the IR Act defines "function" as including "a power, authority or duty". However, given that the availability of the privilege against self-incrimination would appear to be a complete answer to Tristar's submissions concerning prejudice which might arise from any lack of capacity to issue s 128 certificates, we find it unnecessary to rule upon the Minister's submission in this respect (although we may revisit this issue during the course of the proceedings).

87 It should be added that the mere fact that a witness in civil proceedings who is also subject to criminal or penalty proceedings may have to decide either to invoke the privilege against self-incrimination and therefore potentially prejudice his or her position in the civil proceedings, or waive the right and therefore potentially prejudice his or her position in the criminal/penalty proceedings, is not by itself a reason to grant a stay, absent there being a likelihood of causing injustice in the criminal/penalty proceedings: Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Another (1984) 59 ALR 754 at 760; Griffin David James v Sogelease Australia Limited & Ors [2002] NSWCA 421 at [13].

88 Fourthly, we reject Tristar's submission that if a witness invokes the privilege against self-incrimination, there will necessarily be a delay in the Inquiry proceedings because the Inquiry will not be able to have the benefit of that witness's evidence until after the Federal Court proceedings have concluded. As the Minister correctly pointed out, the Federal Court proceedings are against Tristar only; consequently it would not be open for any individual to invoke the privilege against self-incrimination by reason of the commencement of the Federal Court proceedings. Nor (as it conceded) could Tristar, being a corporation, invoke the privilege: Environmental Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477; Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96.

90 Given that both Tristar's jurisdictional and stay applications are refused, the Inquiry's hearings can proceed on the hearing dates previously fixed.

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