45 Based on the foregoing considerations, which point to divergent purposes in so far as wage fixing is concerned under the respective statutes, the strength of the contention that comity should be maintained is significantly weakened. It was submitted, nevertheless, by the federal Minister that we should await the decision of the AFPC in Spring 2006, and by the major employers that we should await the subsequent decision of the Australian Commission, before proceeding to hear and determine the present application by Unions NSW. Of course, a decision of the AFPC has no statutory relevance for this Commission and it is only a "National decision" of the Australian Commission that we are required to consider under s 50 of the Act.
46 We have no better indication from the federal Minister than that any decision by the AFPC will be some time in Spring this year. Conceivably then, a decision could be as early as September and as late as November 2006. In those circumstances it would be unlikely that the Australian Commission would be in a position to issue a decision in relation to transitional employees before the end of 2006 and probably not until the first half of 2007. That would mean, on the major employers' submission, we should adjourn the application by Unions NSW for about 12 months, leaving a gap of nearly two years between the last State Wage Case decision in 2005 and any decision that might be made by us regarding the latest application by Unions NSW. As the President observed in his 20 December decision at [16]:
[A]n important consideration is that, provided parties are given a proper opportunity to be heard, an applicant for an award (or even for a State decision such as the present application) has a right to have its application heard, within the constraints of other Commission business, in an orderly way.
47 The divergence between the changes that have been brought about by the Work Choices Act on the one hand and the Industrial Relations Act on the other, in terms of the respective frameworks for setting minimum award wages, seems reasonably clear. There exists, therefore, the distinct possibility that, even if it were to await a decision of the Australian Commission, this Commission would not be satisfied that any decision of the Australian Commission was consistent with the objects of the Industrial Relations Act pursuant to s 50 or that there were other good reasons for not adopting the decision of the Australian Commission. Accordingly, we consider the balance of convenience lies in favour of dealing with the application by Unions NSW in a timely and orderly way, thus avoiding any injustice that might be caused by what would be an inordinate delay that ultimately may prove to have been unjustifiable.
48 We turn to a more fundamental consideration, namely, the terms of s 48 of the Industrial Relations Act. As we have stated, that section defines a National decision as "a decision of a Full Bench of the Australian Industrial Relations Commission that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to its jurisdiction" (our emphasis).
49 The outcomes in national wage cases and more latterly, safety net reviews, conducted annually by the Australian Commission have flowed generally into its awards, thereby increasing the minimum rates of pay in those awards for the relevant occupational classifications. No issue has arisen that the decisions of Full Benches of the Australian Commission in those annual cases generally affected the conditions of employment (i.e., wages in this case) of employees in New South Wales who were subject to the Australian Commission's jurisdiction.
50 Subject to questions of constitutional validity that are now before the High Court, the AFPC has purportedly taken over the Australian Commission's function in setting the federal minimum wage and award classification wages (and other matters that constitute the Australian Fair Pay and Conditions Standard - see new Part VA of the Workplace Relations Act), except in relation to employees covered by federal awards who are employed by non-constitutional corporations. Importantly, however, federal awards and the employers subject to their coverage, regardless of whether they are constitutional corporations, remain within the Australian Commission's jurisdiction.
51 Any decision fixing safety net wages for "transitional employees" (that is, employees of non-constitutional corporations whose terms and conditions of employment are regulated by federal awards) will only affect a minority proportion of employees in New South Wales subject to the jurisdiction of the Australian Commission. The majority of employees subject to awards of the Australian Commission will have their minimum wages determined by the AFPC. So much was not in dispute in the proceedings before us. A decision of a Full Bench of the Australian Commission that affects only a minority of employees subject to its awards cannot be said to generally affect, or be likely to generally affect, the conditions of employment of employees in New South Wales subject to the Australian Commission's jurisdiction.
52 In other words, subject to the validity of the Work Choices Act in respect of, inter alia, the powers and functions of the AFPC, a decision of the Australian Commission in relation to award classification wages for transitional employees who are subject to the coverage of a federal award will not be a "National decision" for the purpose of Pt 3 of Ch 2 of the Industrial Relations Act.
53 It was submitted by senior counsel for the federal Minister that even if a decision of the Australian Commission in relation to award classification wages for transitional employees was not a "National decision" for the purposes of s 48, the clear legislative intent of s 50 was that the normal course would be to adopt the approach of the Australian Commission. We do not consider that follows. If there is no national decision there is nothing to adopt in so far as the statute that governs this Commission is concerned. In any event, for the reasons we earlier articulated relating to the different legislative purposes that have now emerged, we may well not be inclined to follow a decision of the Australian Commission that in all likelihood will simply flow on a decision of the AFPC.
54 The application by Unions NSW in these proceedings is for the making of a State decision pursuant to s 51 of the Industrial Relations Act. Section 49 of that Act, as we have noted, defines a State decision as "a decision of a Full Bench of the Commission that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to its jurisdiction." The question arises whether in light of the changes to the federal legislation and its impact on the operation of the industrial laws of New South Wales, any decision of a Full Bench of this Commission relating to movements in award wages can be said to be "a decision of a Full Bench of the Commission that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to its jurisdiction."
55 As we have already noted, the purported effect of s 7C of the Workplace Relations Act is that the Workplace Relations Act would operate to the exclusion (with certain exceptions) of present and future industrial jurisdictions in their application to employers and employees who fall within the general constitutional coverage of the amended Workplace Relations Act. Assuming the constitutional validity of the Work Choices Act, the operation of the Industrial Relations Act, as a State industrial law, may then be reduced by virtue of s 109 of the Constitution and, where they are relevant, the provisions of the Workplace Relations Act, including s 152.
56 Section 109 of the Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
57 In their text "Australian Constitutional Law & Theory" (Tony Blackshield and George Williams, The Federation Press, 3rd Edition, 2002) the learned authors commented on the meaning of "invalid" for State law at 370:
For practical or "operative" purposes the State law yields to the Commonwealth law, but remains a valid law of the Parliament which enacted it. The practical significance of this will become apparent if, at some later date, the overriding Commonwealth law ceases to operate. For example, suppose that a Commonwealth law was enacted in 1984 and repealed in 1990. An inconsistent State law lying dormant from 1984 will automatically be reactivated in 1990. Throughout the period of this ouster by an overriding Commonwealth law it has remained valid in the positivist sense, though inoperative. Once the bar to its practical operation is removed, there is no reason why it should not resume its normal legislative effect.
58 In Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268, the High Court held that "invalid" in s 109 meant "inoperative". At 274 Fullagar J stated:
It is on the facts so far stated that the first question arises. That question is whether ss 4, 7, 9 and 10 of the Victorian Preference Act acquired the force of law when the Commonwealth Act ceased to have the force of law. It is quite clear, in my opinion, that this question must be answered in the affirmative. The Victorian Act was not unconstitutional. It was a valid law of the State, and it was fully operative as a law of the State from 21st March 1944 to 27th August 1945. On the latter date it ceased to operate as such a law. But that was not because of any inherent vice. It was merely because the "field" was temporarily occupied by valid Commonwealth legislation. It remained on the statute book and was never repealed by the State Parliament. When the Commonwealth legislation expired, the only obstacle to its operation as a valid law of the State was removed, and it resumed the full force and effect which it had had before 27th August 1945. As Latham C.J. pointed out in Carter v. Egg and Egg Pulp Marketing Board (Vict.) (1942) 66 CLR 557, at p 573, the word "invalid" in s 109 cannot mean that a State law affected by s 109 becomes ultra vires in whole or in part. The word must be regarded as meaning "inoperative". His Honour added: "If the Commonwealth law were repealed, the State law would again become operative" (1942) 66 CLR 557, at p 573.