Port Kembla Coal Terminal Ltd v Industrial Court of New South Wales

Court of Appeal (NSW)|2008-12-03|Before: Spigelman CJ, Beazley JA, Walton J, Boland J, Backman J

The applicant submitted that the WR Act covered the field and, alternatively, that there was a direct inconsistency with the provisions of the Commonwealth law which would prevail in accordance with s 109 of the Commonwealth Constitution.

HELD Spigelman CJ, Beazley JA and Handley AJA agreeing

The purpose of s 16(1) of the WR Act is to identify, at least in part, the relevant field which the Commonwealth Act intends to occupy; and by reason of which inconsistency with State law could arise under s 109 of the Commonwealth Constitution. [36] [103] [104] R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545 referred to.

Section 16 (2) of the WR Act, which renders s 16(1) inapplicable in certain respects, should not be given a narrow technical construction in light of the broader context of the Act, including its scope, nature and purpose. It is intended to provide flexibility to the legislative scheme. [35] [37]-[41] [103] [104]

Regulation 1.2(5) of the Workplace Relations Regulations 2006 (Cth) is a valid regulation which invokes the exception in s 16(2)(b) of the WR Act. Accordingly, s 16(1) is inapplicable and no indirect inconsistency arises. [47] [103] [104]

The WR Act does not cover the field in respect of, or make provision for, enforcement of rights under a State instrument which had accrued prior to the coming into force of the federal instrument, on 27 March 2006. As such, the enforcement of pre-existing rights and obligations continues to depend upon State law. [68] [69] [71] [81] [93] [103] [104] Tristar Steering and Suspension Ltd v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104 distinguished.

There is no direct inconsistency between orders varying the superannuation payment obligations contained in the federal instrument for the period prior to 27 March 2006 and the continued operation of the unamended federal instrument for the period subsequent to that date. [77] [95] [99] [103] [104] Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253; Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; Viskauskas v Niland (1983) 153 CLR 280; Victoria v The Commonwealth (1937) 58 CLR 618; Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128; Australian Mutual Provident Society v Goulden (1986) 160 CLR 330; P v P (1994) 181 CLR 583; Telstra Corporation v Worthing (1999) 197 CLR 61; Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536; Airlines of New South Wales Pty Ltd v New South Wales (1964) 113 CLR 1; Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; Johnston v Krakowski (1965) 113 CLR 552; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322; Commonwealth v Queensland (1975) 134 CLR 298 referred to.

The summons is dismissed with costs. [102] [103] [104] IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SPIGELMAN CJ BEAZLEY JA HANDLEY AJA

Friday 3 April 2009 Port Kembla Coal Terminal Ltd v Industrial Court of New South Wales Judgment 1 SPIGELMAN CJ: On 12 December 2005 the second respondent, the Construction, Forestry, Mining and Energy Union (NSW Branch) ("the CFMEU") instituted proceedings in the Industrial Court of New South Wales for relief under s 106 of the Industrial Relations Act 1996 ("the IR Act"). The proceedings were commenced on behalf of an identified number of members of the CFMEU who had contracts of employment with the applicant ("the employer"). In those proceedings the CFMEU alleges that the contracts of employment with those 78 members were unfair by reason of alleged misrepresentations, or rather promises by the employer made in 1990 at a time when the employer took over ownership control of the coal terminal at Port Kembla previously operated by the Maritime Services Board. 2 The employees had previously been employed by that Board and had been entitled to superannuation benefits under the State Authorities Superannuation Scheme, a defined benefit scheme. The employees had agreed to transfer to an accumulation superannuation scheme to be established by the employer. The CFMEU alleges that it had been represented to each of the employees that their entitlements under the new superannuation scheme would be at least equal to those provided under the previous State scheme. 3 From 1990 until the present the employer had been bound by a series of industrial agreements, the most recent being the Port Kembla Coal Terminal Ltd Enterprise Agreement 2005-2008, being an agreement made between the employer and the CFMEU under Ch 2, Pt 2 of the IR Act. These agreements did not carry into effect the representations referred to in [2]. It is the failure to do so which is the basis of the allegation of unfairness. 4 On and from 27 March 2006, upon the commencement of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("the Work Choices Act"), in accordance with the provisions which I will set out below, the pre-existing State Enterprise Agreement was transmogrified into a Preserved Collective State Agreement ("PCSA") under the Workplace Relations Act 1996 (Cth) ("the WR Act"). The PCSA contained specific provisions which prescribed in detail the level of superannuation contributions required to be made by the employer on behalf of the employees. I will set out these provisions below. They allegedly provided for a lower rate of employer contributions than would be required to give effect to the representations or promises referred to at [2] above. 5 On the agreed facts, all of the members on behalf of whom these proceedings were instituted, were employed as at the date the PCSA came into effect. 6 The orders sought by the CFMEU in the Industrial Court, based on the alleged misrepresentations or promises above were, relevantly: "1 An order varying in whole or in part from its commencement or from some other time the contracts of employment and the employment arrangement between each of the members of the Applicant employed by the Respondent (the 'Members') and the Respondent whereby the Members performed work in the coal handling and loading industry. 2 An order varying the contracts of employment or the employment arrangement between each of the Members and the Respondent so as to insert a term to the following effect: 'On and from 1 July 1990 the Respondent shall be required to make superannuation contributions on behalf of each of its employees who transferred to its employment on or about 1 July 1990 to the PKCT Superannuation Fund or any successor fund thereto a basic contribution equivalent to 15% of fund salary in addition to a 3% productivity award contribution. To avoid doubt contributions made on behalf of employees since 1 July 1990 may be offset against the contributions required by this term.' 3 Further, in addition, an order that the Respondent pay the Members in connection with the contract and the arrangement so varied by the Commission an amount of money as the Commission considers just in the circumstances." 7 The applicant challenges the jurisdiction of the Industrial Court to determine the issues raised in the proceedings on the basis of an inconsistency, within s 109 of the Commonwealth Constitution, between the WR Act and s 106 of the IR Act. The alleged inconsistency was said to arise directly or, alternatively, on the basis that the Commonwealth had covered the relevant field. With respect to the cover the field argument the CFMEU relied upon a regulation, which I will set out below, to the effect that the relevant section of the WR Act did not apply to proceedings commenced, as the present proceedings were, before 27 March 2006 when the WR Act came into force. The applicant calls into question the validity of that regulation. 8 The Full Bench of the Industrial Court rejected the applicant's case. (See Construction Forestry Mining and Energy Union (NSW) v Port Kembla Coal Terminal Ltd [2007] NSWIRComm 296.) It has not been contested in these proceedings that if the State statute is rendered inoperative by s 109 of the Commonwealth Constitution, on either basis asserted by the applicant, then the Industrial Court would be acting beyond its jurisdiction and this Court should exercise its supervisory jurisdiction under s 48 and s 69 of the Supreme Court Act 1970.

The Statutory Scheme 9 With respect to the applicant's contention that the Commonwealth scheme covered the relevant field, the applicant primarily relies on s 16(1) of the WR Act which, relevantly, provides: "16(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; … (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 …" 10 The CFMEU, supported by the Attorney General of New South Wales intervening, relies on a regulation, which would prevent this subsection applying in the manner for which the applicant contends, made pursuant to s 16(2), which provides: "16(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)." 11 It was not contended either before the Full Bench or in this Court that s 16(2)(c) has any application, notwithstanding the fact that one of the "non-excluded matters" identified in s 16(3)(a) was "superannuation". 12 I note that s 16(4) and (5) provide: "(4) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection. (5) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4)." 13 Section 17 of the WR Act provides that a Commonwealth award or agreement prevails over a State award or agreement and s 18 provides: "18(1) Sections 16 and 17 are not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the State and Territories or instruments made under those laws." 14 The general regulation-making power is found in s 846(1) of the WR Act and provides: "846(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act." 15 Regulation 1.2 of the Workplace Relations Regulations 2006 (Cth) relevantly provides: "1.2(1) For paragraph 16(2)(b) of the Act, subsection 16(1) of the Act does not apply to a law of a State or Territory of a kind that is mentioned in this regulation. … (5) Subsection 16(1) does not apply to a law of a State or Territory (including a law relating to appeals) to the extent to which it: (a) relates to proceedings that commenced before the reform commencement; and (b) provides for the variation or setting aside of rights and obligations arising under: (i) a contract of employment; or (ii) another arrangement for employment; that a court or tribunal finds is unfair." 16 Regulation 1.2(5)(a) is satisfied because the CFMEU proceedings were instituted on 12 December 2005, before the Work Choices Act commenced on 27 March 2006. Section 106 of the IR Act satisfies reg 1.2(5)(b). These matters were not in issue. The question for this Court is whether reg 1.2(5) was authorised by s 16(2)(b) of the WR Act. 17 With respect to the applicant's case of direct inconsistency it primarily relies upon Sch 8 to the WR Act which preserves for a period the pre-existing State collective agreements but converts them into a federal industrial instrument as a PCSA under the WR Act as and from what that Act calls "the reform commencement", namely 27 March 2006. 18 Division 1 of Pt 2 of Sch 8 of the WR Act is concerned with individual agreements between the employer and an employee and has not been relied on in the present proceedings. The parallel provision with respect to collective agreements is the subject of Div 2 and that is relevant. 19 The objects of Sch 8 are set out in cl 2: "2(a) to preserve for a time the terms and conditions of employment, as they were immediately before the reform commencement , for those employees: (i) who, but for the reforms commenced at that time, would be bound by a State employment agreement, a State award or a State or Territory industrial law; or (ii) whose employment, but for the reforms commenced at that time, would be subject to a State employment agreement, a State award or a State or Territory industrial law; and (b) to encourage employees and employers for whom those terms and conditions have been preserved to enter into workplace agreements during that time." 20 Clause 10 of the schedule provides: "10 If, immediately before the reform commencement: (a) the terms and conditions of employment of an employee were determined, in whole or in part, under a State employment agreement (the original collective agreement ); and (b) that employee was one of a number of employees who were bound by the agreement, or whose employment was subject to the agreement; a preserved collective State agreement is taken to come into operation on the reform commencement." 21 Clause 13 relevantly provides: "13(1) A preserved collective State agreement is taken to include the terms of the original collective agreement, as in force immediately before the reform commencement. (2) If, immediately before the reform commencement, a term of a State award would have determined, in whole or in part, a term or condition of employment of a person who would have been bound by, or whose employment would have been subject to, the original collective agreement, then, to that extent, that term, as in force at that time, is taken to be a term of the preserved collective State agreement. (3) If, immediately before the reform commencement, a provision of a State or Territory industrial law would have determined, in whole or in part, a preserved entitlement of a person who would have been bound by, or whose employment would have been subject to, the original collective agreement, then, to that extent, that provision as in force at that time, is taken to be a term of the preserved collective State agreement." 22 Clause 13(4) defines "preserved entitlement". That concept does not extend to superannuation. The matters listed in cl 13(4) involve conditions of employment which may be statutory in some cases. The effect of the clause is to write the statutory provision into the State agreement. The drafter appears to have proceeded on the basis that rights to superannuation were not statutory in any State. 23 Clause 15 provides: "15(1) If a preserved collective State agreement confers a function or power on a State industrial authority, that function must not be performed and that power must not be exercised by the State industrial authority on or after the reform commencement. (2) However, the employer and the persons bound by the preserved collective State agreement may, by agreement, confer such a function or power on the Commission, provided it does not relate to the resolution of a dispute about the application of the agreement." 24 Clause 15C provides: "15C(1) Except as provided in or under this Part, or otherwise in or under this Act, a preserved State agreement has effect according to its terms. (2) This Part has effect despite the terms of the preserved State agreement itself, or any State award or law of a State or Territory. (3) None of the terms and conditions of employment included in the preserved State agreement are enforceable under the law of a State or Territory." 25 Clause 16 provides: "16 A preserved State agreement may only be varied on or after the reform commencement in accordance with this Division." 26 The relevant Division goes on to confer jurisdiction to vary a PCSA upon the Australian Industrial Relations Commission. 27 Clause 20 relevantly provides: "20(1) A preserved collective State agreement may be enforced as if it were a collective agreement." 28 The words "collective agreement" refer to an agreement under the Commonwealth legislative scheme. 29 Section 718 of the WR Act provides that a term of a collective agreement can be enforced by an affected employer, an employee, an organisation of employees or an inspector. 30 It is pertinent to note s 719(7) and (8) of the WR Act, with respect to proceedings for breach of an applicable provision: "719(7) Where, in a proceeding against an employer under this section, it appears to the eligible court that the employer has not paid an amount to a superannuation fund that the employer was required, under an applicable provision (except a term of an ITEA), to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund. (8) Without limiting the generality of subsection (7), the eligible court may order that the employer pay to the superannuation fund referred to in subsection (7), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount ) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer." 31 The term "applicable provision" is defined in s 717 to mean "a term of … a collective agreement", relevantly a PCSA.

The Judgment of the Full Bench 32 With respect to the applicant's challenge to the validity of reg 1.2(5) of the Workplace Relations Regulations the Full Bench, relevantly, stated: "[60] Section 16(2) removes from the application of s 16(1) certain State and Territory laws, including, in s 16(2)(b), so far as 'the law is prescribed by the regulations as a law to which subsection (1) does not apply'. [61] It is apparent that the legislature was seeking the flexibility, through the application of delegated legislation, to permit State and Territory laws that would otherwise be excluded, to continue to have application. The respondent, we understand, does not cavil with this proposition. However, the respondent maintained that given the terms of s 16(2)(b), reg 1.2(5) could only remove from the scope of s 16(1), the law that is Ch 2, Pt 9 of the IR Act, without addition or qualification. [62] In addressing that contention we note first that the legislature has gone to the extent of specifically identifying in s 16(1)(d) what is, in effect, Ch 2, Pt 9 of the IR Act as a law excluded by the operation of s 16(1). Arguably, this was done more by the way of emphasis, given that s 16(1)(a) already excludes a State or Territory industrial law, which is defined in s 4 of the WR Act as including the IR Act. [63] If one were to accept the respondent's submission it would mean this: that s 16(1)(d) specifically rendered Ch 2, Pt 9 of the IR Act inoperable as a State law but s 16(2)(b) immediately permitted the whole of that law to be restored by allowing it to be prescribed under the regulations as a law to which s 16(1) did not apply. That could not have been the legislature's intention; it would create an obvious incongruity. [64] The better explanation as to the purpose of s 16(2)(b) is that the legislature was concerned to render Ch 2, Pt 9 of the IR Act inoperable by virtue of the provisions of s 109 of the Constitution, but at the same time to preserve the operation of State law for existing litigants who had accrued a right to have their applications in unfair contract proceedings heard and determined. Such an intention is consistent with the presumption against retrospectivity, namely, in the absence of some clear statement to the contrary, an Act will not be assumed to have retrospective operation so as to exclude accrued rights. Here, the clear statement as to the legislature's intention is that an applicant who commenced unfair contract proceedings under Ch 2, Pt 9 of the IR Act prior to 27 March 2006 is entitled to maintain those proceedings, notwithstanding s 16(1) of the WR Act. [65] In this respect, we agree with what Haylen J said in [ Donald F Hagans v Old UGC Inc. [2006] NSWIRComm 329] at [55]: The regulation [1.2(5)] thereby recognises in a quite unexceptional way the inconvenience and injustice that might flow from s 16 having immediate effect in relation to often longstanding litigation that is frequently brought by an individual at potentially substantial personal cost in relation to arrangements whereby work is performed in an industry as distinct from the award matters brought by employer or employee institutions. [66] We do not consider that the terms of reg 1.2(5) strains the meaning of s 16(2)(b), or is in any way inconsistent with it. That section of the WR Act provides for a law to be prescribed by the regulations as a law to which s 16(1) does not apply. Relevantly, and to paraphrase the regulation, reg 1.2(5) provides that s 16(1) does not apply to a law, that is, Ch 2, Pt 9 of the IR Act, to the extent to which it relates to proceedings involving a contract of employment or employment arrangement that commenced before 27 March 2006 . Regulation 1.2(5) does what s 16(2)(b) allows, but in doing so it limits, in an unexceptional way, the extent to which the operation of the law (Ch 2, Pt 9 of the IR Act) is excluded from s 16(1). Section 16(2)(b) should be treated as an enabling provision, not a restrictive one and does not prohibit a regulation from qualifying the extent to which a law may be excluded from the application of s 16(1): see Russell v Brisbane City Council [1955] St R Qd 419.' 33 With respect to the applicant's direct inconsistency case, the Full Bench set out the submissions of the employer, which are in substance repeated in this Court, and said: "[27] We agree with this assessment. The conclusion is inescapable that an order under s 106 of the IR Act, in the terms of prayer 2 of the CFMEU's amended summons, would be directly inconsistent with the provisions of cl 18 and Appendix 10 of the PCSA. If an order were to be made in such terms it would impose an obligation greater than that for which the federal law has provided: Blackley v Devondale Cream (1968) 117 CLR 523 at 258-259. The applicant, however, contended that the respondent had overlooked the first of the orders sought in the amended summons, namely: An order varying in whole or in part from its commencement or from some other time the contracts of employment and the employment arrangement between each of the members of the Applicant employed by the Respondent (the 'Members') and the Respondent whereby the Members performed work in the coal handling and loading industry. [28] Not being a court of strict pleading (see Burgess at [90]-[92]) [ Burgess v Mount Thorley Operations Pty Ltd [2003] NSWIRComm 432; (2003) 132 IR 400] the CFMEU submitted that it remained open to the Court in the circumstances considered in Burgess for the applicant to amend its claim to introduce more precision into what it was seeking in the first of the orders in the amended summons. So that, for instance, it was open to the applicant, pursuant to claimed order 1, to seek a variation of the relevant contracts in the following terms: In the event that what you are told (in writing or orally) before entering into your contract of employment with PKCT is incorrect, PKCT will pay you an amount of compensation that will place you in the same position you would be in if what you had been told was correct. [29] The applicant put this submission to illustrate the contention that it was conceivable that the Court may make orders that did not conflict with the Commonwealth law and that it was, therefore, premature to determine whether there was any direct conflict. … … [32] We have serious reservations about whether the Court could make orders in this matter that did not conflict with the relevant federal law. The CFMEU's whole case is centred on the allegation that its members were misled as to their future superannuation entitlements under the accumulation scheme operated by the respondent. What the applicant seeks in one form or another is, inter alia , an order that compensates for the shortfall between what its members are entitled to under the terms of the PCSA and what they would have been entitled to had the alleged representations made to them about their future superannuation entitlements been true and accurate. In other words, the relief, in whatever terms it might be framed, would seem to involve the making of orders imposing an obligation on the respondent to make payments in respect of superannuation in excess of the respondent's obligation under the PCSA. That such compensation might not be described in any amended claim as being connected with superannuation, runs the risk of it being regarded as a mere artifice. [33] Nevertheless, in order to succeed on the motion the respondent must establish that no order could be made that would not be inconsistent with the Commonwealth law. … [34] The Court has a wide discretion under s 106 and is not limited to making the orders sought. Moreover, it remains open to the applicant to seek leave to amend the summons for relief. …"

The Validity of the Regulation 34 The applicant contends that reg 1.2(5) is not authorised by s 16(2)(b) of the WR Act because it does not prescribe a "law". It applies, in terms, to "proceedings", not to a "law". The applicant concedes that a regulation could properly be made under s 16(2) which prescribes Pt 9 of Ch 2 of the IR Act as a law to which s 16(1) no longer applied, but reg 1.2(5) is not of that character. This submission should be rejected. 35 There is nothing in the scope and purpose of the legislative scheme to which the applicant has drawn the Court's attention to restrict s 16(2)(b) to the specification of provisions of a State act or to a general description of an act. Its submissions focus on the word "law" and urge the Court to adopt a narrow technical reading of that word. The broader context, including the scope, nature and purpose of the "Work Choices" amendments as a whole, indicate that such an approach is not appropriate. 36 The purpose of s 16(1) of the WR Act is to identify, at least in part, the relevant field which the Commonwealth Act intends to occupy, to which s 109 of the Constitution could apply to invalidate any inconsistency between the WR Act and the identified State acts. (See eg R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545 at 562-563.) Those acts are described in s 16(1) in general terms. They are acts capable of giving rise to a range of different issues impinging upon the efficacy and the fairness of the new industrial regime for which the "Work Choices" amendment provides. 37 In a context where major constitutional, political and industrial issues clearly arise it would not be in accordance with the Parliamentary intention to adopt a narrow interpretation of provisions such as s16(2) and (3). Such provisions were intended to provide flexibility to the Commonwealth in working out the details of the application of its new industrial regime. The concerns of the Commonwealth Parliament were of a practical character extending to the actual operative effect of the State laws. That is clear from the immediate context where each of s 16(2)(a) and (c) preserve a State law "so far as … the law deals with" certain matters. 38 The importance of flexibility is manifest in cl 1 of Sch 4 of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which established the new regime. By way of supplementation of the general regulation power in s 846 of the WR Act, cl 1 in Sch 4 of the 2005 "Work Choices" Amendment Act provides: "1(1) The Governor General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by this Act." 39 The very generality of the power - notably the inclusion of reference to "application nature", which goes beyond the customary terminology of "transitional" and "saving" - emphasises that a narrow approach to the exempting provisions of this major legislative change should be rejected. 40 There is, as the submissions for the second respondent and the intervening Attorney General identified, a textual basis for a degree of flexibility in the words "so far as" in the chapeau to s 16(2). This formulation is to be understood in the sense of "to the extent that". So understood it is, in my opinion, capable of delimitation by a circumstance attending the application of the law, relevantly, by par (a) of reg 1.2(5) set out at [15] above. 41 There is no reason to read down the words of s 16(2)(b) so that they apply only to particular sections or groups of sections of a specific State act or to an act generally described. In my opinion, the power in s 16(2)(b) can be exercised with a focus on the application to particular circumstances of State legislation answering the general descriptions in s 16(1). 42 It could be said that the formulation "so far as", when applied in the context of the phrase "does not apply to a law", is ambiguous as to the ability to promulgate a regulation in terms of circumstances attending the application of a statute, rather than reference to particular provisions or to a general description of a statute. Accordingly, s 15AB(1)(b) of the Acts Interpretation Act 1901 (Cth) would apply and the Court is entitled to have regard to the comments made on behalf of the Government in the Senate. (See s 15AB(2)(h).) 43 In the Hansard for 2 December 2005, (Senate, Parliamentary Debates (Hansard), 2 December 2005) Senator Murray raised the kind of issue before the Court (at 9-10): "The present legislation will act to rob people who are presently before the state industrial courts and commissions of their existing legal rights. That is an extremely sensitive and important issue and I really do believe that we need to be very careful if that is the effect of the legislation. Terminating existing legal rights would affect cases which involve the underpayment of wages and statutory entitlements, remedies for unfair contracts in Queensland and New South Wales and remedies for unfair dismissal which are presently before the courts. Clause 7C(1)(d) of the bill is intended to have the effect via section 109 of the Australian Constitution of invalidating section 106 of the Industrial Relations act of New South Wales and other states, which allows the industrial relations commissions in court sessions to void or vary any contract whereby work is performed in an industry if it is unfair. It will preclude the exercise of any power by the commission under section 106 immediately, so any existing case will be frozen. Regardless of whether the government is of the opinion that existing cases are based on laws that it does not like and is now going to change, it is a basic principle of our legal system that existing cases are not interfered with and are allowed their full passage. The commission, as a result of the act as it stands, will be unable to make any orders. This means that people in the middle of lengthy and costly litigation will immediately have their rights removed without any recourse. The practical effects will be devastating for individuals, many of whom are middle managers and those described in the media as battlers, and leave them with devastating legal costs, and there will be no remedy. Those people who are engaged in proceedings have obviously done nothing wrong, because they are acting in the terms of the law as it stands and they proceeded on the law as it stood. They must have had reasonable prospects to commence the proceedings under the Legal Profession Act. Through no fault of their own, without ever having been given the choice, they will be exposed to serious harm through this legislation once enacted." 44 Senator Abetz, for the Government, responded as follows (at 13): "My advice - and it is from the highest levels of the department - is that the matters to which Senator Murray refers can be fixed by regulation. It is the intention of the government to deal with these matters by regulation. The legal advice is that we have to be very careful in framing any language in relation to the transitional arrangements. In those circumstances I am advised that the amendment as drafted, because of its general application, may cause confusion about how it interacts with other parts of clause 7C, which excludes certain state laws. The substance of what Senator Murray is saying is accepted by the government, but we say that we do not need a clause that covers everything, because it may not be appropriate that all such proceedings continue. For example, wage setting will move to the Fair Pay Commission and it would be inappropriate for state wage matters to continue after commencement. So there are those sorts of considerations as well. Therefore we believe the best way to handle it is by way of regulation. Senator Murray has legal advice that we cannot do that. I am advised by lawyers with better legal knowledge than mine, from the government side, and they assert with confidence that it can be done by regulation. The matter that Senator Murray has addressed is a matter of concern to the government. It is being looked at and we intend to remedy it by regulation. My advice is that it can be done by regulation." 45 Senator Abetz went on to say (at 14): "Very briefly, the circumstances which Senator Murray outlines are in general terms clearly undesirable. Regulation would allow those matters to hopefully be dealt with expeditiously. In relation to a fund, the government will consider that without any strings attached, and nobody should read too much into that. But, given the flexibility of being able to make regulations, I would like to think the potential for that to occur would be very narrow and it would only be in circumstances such as, for example, wage cases in the state commissions. But the points that Senator Murray makes are points that I can indicate, without divulging too much, have been raised in our party room, so it is a matter of interest to the government. We have had feedback on it and we are seeking to address it." 46 This indication of the Parliamentary intention reinforces the conclusion I would have come to in any event. 47 Regulation 1.2(5) is a valid regulation. The applicant's contention that s 16(1)(a) and/or (d) had the effect of establishing an inconsistency under s 109 should be rejected.

The Inconsistency Issue 48 The provisions of the PCSA with which the orders sought under s 106 of the IR Act are said to give rise to an inconsistency are cl 18 and Appendix 10, which provide: "18. SUPERANNUATION (i) Agreed Fund The Superannuation Fund applicable for all purposes to Employees covered by this Agreement shall be AUSCOAL Super as agreed. Contributions to the Fund will meet statutory levels set by government. Details of contribution levels are included in appendix 10. (ii) Superannuation Salary Sacrifice In addition to historical salary sacrifice arrangements, employees can elect to make additional superannuation contributions through salary sacrifice, as an employee contribution, subject to applicable legislation. These additional contributions will not attract matching employer contributions. The amount of salary sacrifice must be nominated at the beginning of each June for effect on July 1. Contributions can stop or change only once per twelve month period. Contributions can be up to or no greater than the limit allowable under the Income Tax Assessment Act." "Appendix 10 Port Kembla Coal Terminal Superannuation Contributory members will contribute a minimum of 8.00% of superannuable salary to the Fund and PKCT will contribute 1.75 times this amount or 14.00% plus an additional 3%. Contributory members may also elect to contribute a further 2.00% for any consecutive six year period (this has been referred to as 'flexing' in previous agreements.) Accordingly, this becomes a 10.00% member contribution and PKCT will contribute 1.75 times this amount of 17.50% plus an additional 3%. Pursuant to the 1997 Enterprise Agreement all member contributions became deductible from pre-tax earnings which means all superannuation contributions are now employer contributions. In order that the above member contributions are matched the pre-tax deduction rates are 9.41% to meet the 8.00% and 11.45% to meet the 10.00%. Should the employee wish to make any additional contributions via salary sacrifice PKCT will not make further contributions as a result of these additional contributions by the employee." 49 As and from the time that this provision became part of a PCSA under the WR Act, the provisions of that Act, perhaps most clearly ss 15C and 16 set out at [24] and [25] above, would be inconsistent with provisions of any State act that could impinge upon its operations in accordance with the case law on s 109 of the Constitution. This effect was not contentious. 50 I have set out at [33] above par [27] of the Full Bench judgment where their Honours stated that the relevant prayer for relief in the CFMEU's Amended Summons would be directly inconsistent with the provisions of cl 18 and Appendix 10 of the PCSA. Of significance for present purposes is the fact that the Full Bench indicated, at [32] of the judgment, that their Honours could not identify an order they could make in the matter which did not conflict with the relevant Federal law. Nevertheless, the Full Bench was not prepared to determine, at that stage of the proceedings, that there could be no such order. 51 The applicant's submissions in this Court emphasise the fact that the second respondent has had many opportunities to amend the order, whether by way of amending its pleadings or in the form of submissions. Absent any such identification, it submitted that the case for an order in the nature of prohibition had been made out. 52 In its written submissions the second respondent submitted that there is no direct inconsistency between the PCSA and an order operating on the employment contracts between 1990 and 26 March 2006. This submission was supported by the Attorney General intervening. It does not appear that this contention was advanced before the Full Bench. 53 In this Court the CFMEU accepted that Sch 8 of the WR Act meant that the PCSA could not be amended with effect after 27 March 2006 except pursuant to the WR Act. Thereafter the Industrial Court could not amend the PCSA. However, it submitted that an amendment to a contract of employment incorporating the pre-existing State Enterprise Agreement, with effect only prior to 27 March 2006, would not give rise to an inconsistency and, accordingly, an order to pay a sum to address the unfairness which took place prior to that date would not impinge in any relevant way on the PCSA. 54 The contracts now sought to be varied are the individual contracts of employment which incorporated the obligation under the State Enterprise Agreement as it existed until and including 26 March 2006, with respect to employees employed at that time. 55 The issue which arises is whether or not the Industrial Court has jurisdiction to make such orders with effect up to the date on which the "Work Choices" regime came into existence. If it has such jurisdiction then this Court could make an order in the nature of prohibition quoad to take effect from 27 March 2006. However, in the absence of any suggestion that the Full Bench would make an order with effect after that date, it would not be appropriate to do so. 56 The second respondent submits that an order redressing the unfairness which took place prior to 27 March 2006 is incapable of creating a relevant inconsistency with the PCSA which came into existence only on 27 March 2006. 57 During the course of oral submissions Mr R Margo SC, who appeared for the second respondent, put forward, by way of an example, further possible orders as follows: "Example of variation Order that the contract between the applicant and the respondent be varied from date of its commencement by insertion of the following term: What you were told (in writing or orally) about your contract of employment with PKCT and to the knowledge of PKCT before entering into the contract is warranted by PKCT to be correct. Example of avoidance Order declaring the contract between the applicant and the respondent void from 1 July 1990 to and including 26 March 2006 except for the purpose of calculating total period of service and to the extent of any and all payments made to or on behalf of or for benefit of the applicant by the respondent during the said period. Example of payment order Order that the respondent pay the applicant the sum of $X." 58 Mr I Taylor, who appeared for the Attorney General intervening, submitted that the Industrial Court could vary the contracts by providing that the employer's contribution, required by Appendix 10, could be increased to the extent required to make good the representations for payments made up to and including 26 March 2006. 59 Mr R Kenzie QC, who appeared for the applicant, submitted that an order restricted in its terms to the period before 27 March 2006 would still give rise to a constitutional inconsistency. He submitted that an order by the Industrial Court under s 106 of the IR Act would take effect, and create obligations for the first time, from the date of that order, even if it were to compute payment by reference to a prior period. That created the inconsistency. 60 Mr Kenzie QC submitted that the "Work Choices" scheme was directed to totally regulating, as and from 27 March 2006, the relations of employers who are constitutional corporations and their employees. An order that comes into effect after 27 March 2006, even if referable to a prior period, affects the constitutional corporation by requiring it to pay more money than it is obliged to pay under the PCSA. The scheme of the Work Choices Act is such, he submitted, that Parliament did not intend a temporal limitation of the character for which the second respondent contends. 61 Mr Kenzie QC also relied upon the provisions of Sch 8 set out above, as a code in relation to PCSAs and submitted that this could give rise to a 'cover the field' indirect inconsistency even if reg 1.2(5) was a valid exercise of the power under s 16(2) and even if there was no direct inconsistency. 62 Mr R Margo SC emphasised that the PCSA speaks as and from 27 March 2006. Accordingly, when Appendix 10 states "PKCT will contribute 1.75 times this amount", it is referring, and referring only, to contributions that will be made on and after 27 March 2006. 63 The form of order sought in oral submissions by the second respondent, set out at [57] above, does not purport to vary the contributions that the applicant should have paid prior to 27 March 2006. It purports to insert a new term based on a representation and then seeks an order overriding the contract up to and including 26 March 2006, which order lays a foundation for a compensatory monetary award to the employee. This order does not involve any payment into the Fund out of which superannuation is to be paid. 64 However, the form of order suggested by counsel for the intervening Attorney-General set out at [58] above, would involve a varied contribution to the Fund. Similarly, Order 2 in the original summons, set out at [6] above is of that character, albeit without express limitation as to time. 65 The Court asked the parties to address the issue of how a contravention of the State Enterprise Agreement which occurred prior to 27 March 2006 could be enforced. Perhaps the most pertinent example is a failure by the employer to make the contribution required by Appendix 10 at a time prior to that Agreement being transmogrified into a PCSA. For such a failure made after that time, enforcement could occur by an order made under s 719(7) of the WR Act. It does, however, appear that the WR Act makes no provision for enforcement of rights under a State instrument which had accrued prior to 27 March 2006. 66 Mr Kenzie QC submitted that any order under s 106 of the IR Act takes effect at the time it is made, which will be at a time when the PCSA exists. Accordingly, the order will have the effect of increasing the amounts that the applicant is called upon to pay by way of superannuation at a time when the PCSA exists. He also submitted that it did not matter what period the order relates to. He submitted that the Industrial Court could not enforce breaches of the State agreement after the PCSA came into force. The only provision for enforcement was cl 20 of Sch 8. That, he submitted, is the only remedy. 67 I have set out cl 13 of Sch 8 of the WR Act at [21] above. Clause 13 creates a federal collective agreement, entitled a "preserved collective State agreement" in the terms of the State agreement "as in force" as at 26 March 2006. (And see cl 10.) By cl 15C(2), Pt 2 of Sch 8 has effect despite the terms of any State "law" i.e. s 106 of the IR Act. Furthermore, by cl 15C(3) the terms and conditions of employment in a PCSA are not enforceable under State law. However, there was no PCSA until 27 March 2006 and, accordingly, no terms and conditions in a PCSA capable of enforcement. 68 On the submissions in this Court, there is nothing in the WR Act that says anything about the enforcement, after 27 March 2006, of obligations under the pre-existing State collective agreement with respect to obligations arising prior to the coming into force of the PCSA. Clause 15C(3) refers only to enforcement of the PCSA. (See also cl 20(1).) 69 In my opinion, the applicant's reliance on cl 20 is misconceived. That clause is concerned, and concerned only, with enforcement of a PCSA. It says nothing about enforcement of the State agreement which has been replaced by the PCSA. 70 Similarly, s 719(7) and (8) which expressly refer to the case of an employer who has not paid an amount to a superannuation fund, are concerned, and concerned only, with the provisions of a collective agreement under the WR Act, relevantly a PCSA. 71 The applicant did not suggest that there was any other means of enforcement of the prior State agreement under the WR Act. That must mean that enforcement of pre-existing obligations continues to depend on State law. 72 This fact is, in my opinion, of significance for determining whether there is any direct inconsistency with respect to the modification of an obligation referrable only to the period prior to the existence of a PCSA. 73 If the employer had failed to pay wages to an employee for a period prior to 27 March 2006, that obligation would be enforced under State law even after that date. Similarly if the employer had failed to make its contribution to the superannuation fund under Appendix 10, with respect to the period prior to 27 March 2006, that obligation would also be enforced under State law even after that date. Contrary to the applicant's submissions, Sch 8 of the WR Act is not a code which provides exhaustively for the circumstances in which an employer can be obliged to pay money to or for the benefit of an employee after 27 March 2006. 74 The issue before this Court is whether an obligation referrable to that period can be created for the first time by an order made after 27 March 2006 in proceedings commenced prior to that date. 75 I have set out at par [33] above the reasoning of the Full Bench, specifically at [27] of their Honour's judgment. Their Honours referred to the judgment of Barwick CJ in Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259 for the proposition that the order sought in the summons would create a direct collision with the WR Act, specifically cl 18 and Appendix 10 of the PCSA. The applicant in this Court submitted that, on the basis of the authority of Blackley, the Full Bench was correct and that this Court should come to the same conclusion. 76 As I have indicated above, the case propounded in the Full Bench appears to have been different to that put forward in this Court. Unlike Order 2 in the summonses originally filed, set out at [6] above, the submissions in this Court accepted that a requirement in the terms of the summons upon the applicant to make payments to the Fund, or any other order, could only relate to the imposition of a requirement up to and including 26 March 2006. 77 I have set out at [48] above the relevant obligation under the pre-existing State Enterprise Agreement, imposed upon the applicant by Appendix 10. As there appears, the employer's obligation is to pay a specific amount, computed in terms of a percentage of an employee's superannuable salary. That payment is to be made to the identified superannuation fund. If, following some actuarial calculation, a different formula were inserted into Appendix 10 with respect to the period up to and including 26 March 2006, the employer could be required to pay a higher amount than its actual payment made during that period. I am unable to identify any direct collision between Appendix 10 so amended and the continued operation of Appendix 10 as part of a PCSA in an unamended form for the period from 27 March 2006. 78 As I have indicated, the applicant submitted that a cover the field approach may be applicable even if the Court were to reject, as I would reject, its submissions on the validity of the regulation. That determination, by force of s 16(2), prevents the application of the expression of Parliamentary intention found in s 16(1). Nevertheless, s 18 of the WR Act states expressly that s 16 is not a complete statement of the circumstances in which the WR Act is intended to operate to the exclusion of State law. 79 As the judgments in Blackley make clear, the tests for direct and indirect inconsistency are not mutually exclusive. (See also Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 274.) 80 As I have noted, the applicant submits that the fact that the order was made after the Commonwealth PCSA came into force gave rise to a relevant inconsistency. This appears to be based on the proposition that the Commonwealth intended to provide exclusively for every industrial circumstance arising after that date in an employee/employer relationship, specifically encompassing any requirement to make a payment to or on behalf of an employee on or after 27 March 2006. No detailed analysis of the legislative scheme, or of the purpose of the Parliament, was relied upon in this respect. I am unable to detect any such intention. 81 As the joint judgment pointed out in New South Wales v Commonwealth (2006) 229 CLR 1 (the "Work Choices Case"), the WR Act as amended by the "Work Choices" legislation, does "provide a more detailed scheme than State law in some respects and a less detailed scheme in other respects" (at [370]). The WR Act is plainly intended to be comprehensive with respect to employer/employee relationships as and from 27 March 2006. However, I am not prepared to conclude that that intention extends to precluding the subsequent creation of rights and obligations referrable only to the period before the Commonwealth scheme came into force, with respect to proceedings protected by a valid regulation under s 16(2). 82 The case which bears the closest resemblance to the present is the judgment of the Full Court of the Federal Court in Tristar Steering and Suspension Ltd v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104. Mr Kenzie QC relied upon this case for his characterisation of Parliamentary intention and, specifically, for the proposition that it did not matter that the order which the Industrial Court could make under s 106 of the IR Act was capable of being limited to the period prior to 27 March 2006 when the Work Choices Act came into force. 83 In Tristar the Court found that the Industrial Relations Commission of New South Wales did not have jurisdiction or power to conduct an inquiry pursuant to s 146(1)(d) of the IR Act upon reference by the New South Wales Minister for Industrial Relations with regard to the availability of work, including the then current dispute between employees and the employer concerning redundancy or termination pay. The dispute had arisen after the Work Choices Act came into force, but the terms of reference of the inquiry referred expressly to "historical and background facts and circumstances" which could have involved an inquiry into matters that preceded 27 March 2006. 84 Kiefel J referred to s 16(1) of the WR Act and noted at [8] that it was not suggested that s 16(2) or (3) were pertinent to the case. 85 Her Honour added: "[10] Section 16 might be said to mark out the field of relations between a constitutional corporation, in its capacity as employer, and individuals, in their capacity as employees of the corporation, as the subject of the Commonwealth's exclusive law-making with the exception of the laws identified in subss (2) and (3). … The fact that subs (2) of s 16 excludes laws dealing with specific matters having a connexion with the employer and employee as defined, does not prevent a conclusion that the section intended to cover the field so identified. … … [12] The Minister did not dispute that there was a clear intention shown by s 16 to exclude State law. Rather it was submitted for the Minister that the field taken was more correctly described as that of the 'rights and obligations' which the Commonwealth may identify as arising out of the relationship between a s 5(1) employee and a s 6(1) employer and upon which it will legislate. … It was then submitted that s 146(1)(d) of the State Act does not purport to affect or alter those rights and obligations and cannot be said to enter upon the Commonwealth's field. … [14] It may be accepted that the Commonwealth may be concerned to create, regulate and adjust rights and the obligations as between employer and employee as defined. That does not detract from its area of exclusive law-making being more generally the relations between them in that capacity. … [15] It is the Commonwealth Act to which regard must be had in determining consistency. Inconsistency will exist where there are two sets of provisions on the same subject: Clyde Engineering v Cowburn (1926) 37 CLR 446 at 490. That is so here whether the subject is described by reference to the relations between employer and employee as defined or the rights and obligations which may be made the subject of specific rule. Section 16 discloses a clear intention to exclude that area of relations from State law, at least so far as concerns employers which are constitutional corporations. [16] … The State Act intrudes into the field reserved by s 16 by its provisions which concern the relationship between employers and employees, where the former are constitutional corporations. Amongst those provisions are the powers given to the Commission. … [17] … The applicants' proposed orders left open the question whether they should be limited to events occurring after 27 March 2006, leaving the inquiry to deal with matters occurring prior to it. I do not consider the declaration should be so limited. The point is that there is no power to hold the inquiry." 86 It was her Honour's reference in par [17] to the time period, upon which Mr Kenzie QC specifically relied in this Court. 87 Gyles J agreed "with the substance of the reasons" of Kiefel J (at [18]) and added supplementary reasons of his own. He referred to s 16 (at [19]) as "an express Commonwealth legislative intention to make the Commonwealth Act 'exclusive and exhaustive' within its field". He referred to the scheme of the IR Act as a whole and compared it with the scheme of the WR Act, concluding: "[22] Whilst the NSW Act may not be wholly invalid, it can have no effect upon constitutional corporations concerning their relations with actual or potential employees. Indeed, the NSW Act cannot be concerned with the regulation of constitutional corporations at all. It follows that s 146(1)(d) of the NSW Act is invalid for present purposes as it authorises conduct that may affect constitutional corporations." 88 The third judgment was that of Buchanan J, with the substance of whose reasons Gyles J also agreed (at [18]). The focus of his Honour's reasons was also upon s 16, specifically the submission made in that case that "it was only regulation of rights and obligations arising out of employment relationships which was excluded by s 16" (at [40]). 89 His Honour went on to say: "[45] By its terms s 16 of the WR Act declares an intent that the WR Act occupy, to the exclusion of the IR Act (subject only to the exceptions in s 16(2), (3) and (4) - which are not here relevant), the whole field of legislative activity ' in relation to an employee or employer' (my emphasis) where the employer is an entity identified by s 6(1) of the WR Act, including a constitutional corporation. The words 'in relation to' are broad. They are not confined to exclude only actual regulation of specific rights and obligations but anything done by or under a State or Territory industrial law. Furthermore, although in many, perhaps most, cases it is the relationship of employer and employee, or the relations of an employer with its employee or employees, which will provide the practical foundation from which s 16 commences that should not be understood to import a limitation upon, or add a further gloss to, the words 'in relation to an employee or employer'. Matters which concern them individually, or separately, are also within the field covered. … [47] … The IR Act is rendered invalid to the extent that it 'would otherwise apply in relation to' constitutional corporations who are employers or any of their employees. Section 146 of the IR Act (whether under s 146(1)(d) or otherwise) does not, any longer, permit or authorise the IRC to perform any function 'in relation to' such employers or employees. [48] Accordingly its functions do not, under s 146, validly extend in relation to constitutional corporations or their employees to: (a) setting remuneration or other conditions of employment; (b) resolving industrial disputes concerning them; (c) hearing and determining other industrial matters concerning them; (d) inquiring into or reporting on any matter concerning them, whether industrial or otherwise, referred by the Minister, or; (e) performing any other function conferred by the IR Act so far as it concerns them. [49] Subject to presently inapplicable exceptions, the IR Act has no valid operation 'in relation to' Tristar or any of its employees, or any other constitutional corporations or any of their employees." 90 Amongst the "presently inapplicable exceptions", to which Buchanan J referred, is the exception in s 16(2) which his Honour had earlier noted, at [45] of his judgment, did not arise. 91 In this respect all three of the judgments are clearly focused on the provisions of s 16(1), to the exclusion of s 16(2). The observations made to the effect that the WR Act exclusively provided for all aspects of "the relationship between employers and employees" must be so understood. (See eg the italicised words at [45] of the judgment of Buchanan J set out at [89] above.) 92 As noted above, Kiefel J at [17] addresses a matter that was left open in the submissions before the Full Federal Court on behalf of Tristar concerning the possibility that an inquiry could be permitted with respect to events occurring prior to 27 March 2006. It does not appear that the Minister pressed any such point. Her Honour expressly rejected that possibility. Nothing in the reasons of the Court with respect to the facts of that case suggests there was any bright line of the character that exists on the facts of this case. Furthermore, the analysis in Tristar was expressly concerned with the interpretation and application of s 16(1). 93 The position in the present case is quite different. For the reasons set out above the Commonwealth has exercised its express power in s 16(2)(b) to limit the extent to which it purports to cover the field under s 16(1) by expressly excluding proceedings that have been instituted under an industrial law prior to the coming into force of the "Work Choices" scheme. 94 If the reasoning in Tristar were applicable to the present case, as it would be if reg 1.2(5) had not been made, then clearly I would follow it. However, in my opinion, for the above reasons it is distinguishable. 95 In my opinion, an order is capable of being devised which affects the relationship of the employer and employee within the timeframe in which their relationship was exclusively regulated under State law. I refer to an order varying the employer's contribution required by Appendix 10 up to 26 March 2006. It was not disputed that an actuary could compute the level of contribution that would have been required to make good the representation together with interest. Such an order could not lead to full restoration, because the increased rate would cease to apply at that date. The additional payments would only go part of the way to making good the representation. 96 Although it is not necessary, or appropriate to finally determine the point, other orders, such as the order proposed by the CFMEU set out at [57] above, may well involve computation of payments that are referrable to service after 26 March 2006 and would, accordingly, give rise to an inconsistency. It is sufficient for present purposes to conclude that a valid order is capable of being devised limited in its effect to the period in which the relationship was governed by State law. 97 It is also neither necessary nor appropriate to determine whether any and if so what order could be made pursuant to s 106(5) of the IR Act providing for monetary compensation to an employee for the failure on the part of the employer to have made contributions in accordance with an order varying Appendix 10. 98 Blackley, upon which the applicant principally relied, is in a line of authority which affirms that direct inconsistency can arise even though it is possible to obey both a Commonwealth and State law. (See Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 478 and 489-490; Viskauskas v Niland (1983) 153 CLR 280 at 291.) However, all of these cases are concerned with obligations referrable to the same time period. Where, as here, a clear time boundary exists between the operation of a State law and the operation of a Commonwealth law, I can see no direct inconsistency. 99 The fact that an order is made during the period that the Commonwealth law is operative, but referrable to the prior period does not, to use terminology that has been applied in a number of different cases: "alter", "impair", "detract from" or "vary or qualify" a right or obligation conferred or imposed by a law of the Commonwealth. (See eg Victoria v The Commonwealth (1937) 58 CLR 618 at 630; Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136; Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 at 339; P v P (1994) 181 CLR 583 at 603; Telstra Corporation v Worthing (1999) 197 CLR 61 at [31].) 100 The distinction between the State Enterprise Agreement in force up to 26 March 2006 and the PCSA in force from 27 March 2006 does not give rise to a s 109 inconsistency. It is as clear a boundary as that: · between regulation of roads in a Commonwealth Territory and in a State. (Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 at 565); · between regulation of intrastate air navigation and interstate air navigation. (Airlines of New South Wales Pty Ltd v New South Wales (1964) 113 CLR 1 at 39-42, 48, 51-52; Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 147-148, 156); · between a Commonwealth law concerned with matrimonial maintenance orders made before the death of a spouse with operative effect after death, and a State law concerned with applications for such an order made after death. (Johnston v Krakowski (1965) 113 CLR 552 at 558-9, 562, 566, 568); · between a Commonwealth law prohibiting appeals to the Privy Council from a decision in a federal jurisdiction and a State law permitting appeals concerning State law. (APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 at [80], explaining Commonwealth v Queensland (1975) 134 CLR 298). 101 In the words of Menzies J in Johnston v Krakowski at 568 "the two laws simply do not meet". There is no direct inconsistency.

Conclusion 102 The summons should be dismissed with costs. 103 BEAZLEY JA: I agree with Spigelman CJ. 104 HANDLEY AJA: I agree with Spigelman CJ. **********

30/06/2009 - WR Act changed to Work Choices Act - Paragraph(s) 4, 16, 60, 82, 83

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

Workplace Relations Amendment (Work Choices) Act 2005(Cth)s 16

Workplace Relations Act 1996(Cth)

CITATION: Port Kembla Coal Terminal Ltd v Industrial Court of New South Wales [2009] NSWCA 70 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Airlines of New South Wales Pty Ltd v New South Wales (1964) 113 CLR 1 Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 Commonwealth v Queensland (1975) 134 CLR 298 Construction Forestry Mining and Energy Union (NSW) v Port Kembla Coal Terminal Ltd [2007] NSWIRComm 296 CASES CITED: Johnston v Krakowski (1965) 113 CLR 552 New South Wales v Commonwealth (2006) 229 CLR 1 (the "Work Choices Case") Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 P v P (1994) 181 CLR 583 R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 Telstra Corporation v Worthing (1999) 197 CLR 61 Tristar Steering and Suspension Ltd v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104 Victoria v The Commonwealth (1937) 58 CLR 618 Viskauskas v Niland (1983) 153 CLR 280

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