Cfmeu v Newcrest Mining Limited [2005] NSWIRComm 23 (21 February 2005)

Last Updated: 4 March 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23

FILE NUMBER(S): IRC 5730

HEARING DATE(S): 02/12/2004

DECISION DATE: 21/02/2005

PARTIES:

NOTIFIER / RESPONDENT ON THE MOTION

Construction Forestry Mining and Energy Union (New South Wales Branch)

RESPONDENT / APPLICANT ON THE MOTION

Newcrest Mining Limited

INTERVENORS

Commonwealth of Australia

Attorney General for New South Wales

Labor Council of New South Wales

JUDGMENT OF: Walton J Vice-President Boland J Staff J

LEGAL REPRESENTATIVES

NOTIFIER / RESPONDENT ON THE MOTION

Mr S Crawshaw SC with Mr A M Slevin of counsel

Mr A Bukarica

CFMEU

RESPONDENT / APPLICANT ON THE MOTION

Mr R Buchanan QC with Mr S Meehan of counsel

Solicitor: Ms H McKenzie

BlakeDawsonWaldron

INTERVENORS

Commonwealth

Mr R F Crow of counsel

Attorney General for New South Wales

Mr N Perram of counsel

Labor Council of New South Wales

Ms A Hughes

CASES CITED: Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169

Australian Tramway Employees Association v Prahran and Malvern Tramway Trust and Ors (1913) 17 CLR 680

Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466

Commonwealth v State of Western Australia (1999) 196 CLR 392

Correctional Health Services Award, Re (1999) 90 IR 235

Dao v Australian Postal Commission (1987) 162 CLR 317

Dingjan; Ex parte Wagner (1995) 183 CLR 323

McLean Ex parte; (1930) 43 CLR 472

Metal Trades Industry Association of Australia v The Amalgamated Metal Workers' and Shipwrights Union (1983) 152 CLR 632

New South Wales Teachers Federation v NSW Department of Education and Training (2000) 100 IR 441

P v P (1994) 181 CLR 583

Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346

Review of the Principles for Approval of Enterprise Agreements 2002, Re (2002) 121 IR 144

Taudevin v Egis Consulting Australia Pty Ltd (No 2) (2001) 131 IR 124

Telstra Corporation Limited v Worthing (1999) 197 CLR 61

Veta Limited v Evans [2004] NSWIRComm 336

The State of Victoria & Ors v The Commonwealth of Australia and Ors (1937) 58 CLR 618

LEGISLATION CITED: Constitution ss 51 (xx) 51 (xxxix) 51(i) s 109 s 122

Conciliation and Arbitration Act 1904 (Cth) s 65

Industrial Relations Act 1996 (NSW) s 4 s 6 s 130 s 131 s 132 s 133 s 134 s 135 s 136 s 152 s 154 s 176 s 193

Industrial Relations Act 1988 (Cth) s 127(1) (b) s 127A s 127B

Judiciary Act 1903 (Cth) s 39(2) s 78B

Trade Practices Act 1974 (Cth) s 45D

Workplace Relations Act 1996 (Cth) s 3 s 152 s 153 s 170LZ s 170VA s 170VC 170VF 170VG s 170VH s 170VQ s 170VR s 170VT

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: Walton J Vice-President

Boland J

Staff J

Monday 21 February 2005

Matter No IRC 5730 of 2004

CONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) v NEWCREST MINING LIMITED

Notification under s 130 of the Industrial Relations Act 1996 by the Construction Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Newcrest Mining Limited re disciplinary proceedings

JUDGMENT OF THE COURT

[2005] NSWIRComm 23

1 On 23 September 2004 the Construction, Forestry, Mining and Energy Union, New South Wales Branch ("CFMEU"), an organisation of employees registered under the Industrial Relations Act 1996 ("IR Act"), notified the Industrial Registrar of an industrial dispute pursuant to s 132 of that Act. The notification stated that the "question, dispute or difficulty" concerned "the following industrial matters":

· The respondent employer Newcrest Mining Limited (ACN 004 683 625) ('Newcrest') operates the Cadia Hill Gold Mine near Orange in the State of New South Wales.

· One of the employees of Newcrest is Mr Brett Tametea, a member of the Construction, Forestry, Mining and Energy Union, New South Wales Branch ('the CFMEU').

· Mr Tametea's terms of employment are regulated under and Australian Workplace Agreement ('AWA').

· Mr Tametea has been subject to disciplinary proceedings and has requested representation by the CFMEU in matters relating to his employment with Newcrest.

· The terms of the 'Fair Treatment Procedure' in the AWA applying to Mr Tametea provide that he may be represented by "... another person at any time during the fair treatment procedure".

· Newcrest has denied Mr Tametea the right to be represented by the CFMEU.

· Accordingly, the CFMEU is in dispute with Newcrest over the failure to comply with the terms of the AWA and the victimisation of Mr Tametea because of his union membership.

2 The CFMEU later (5 November 2004) filed with the Registrar an amended dispute notification which became the subject of the proceedings before us. That amended notification stated the industrial dispute concerned the following matters:

(a) The respondent employer Newcrest Mining Limited (ACN 004 683 625) ('Newcrest') operates the Cadia Hill Gold Mine near Orange in the State of New South Wales.

(b) One of the employees of Newcrest is Mr Brett Tametea, a member of the CFMEU.

(c) Mr Tametea is subject to a final written warning by Newcrest. The CFMEU seeks to discuss the final written warning with Newcrest.

(d) Newcrest is refusing to discuss the final written warning with the CFMEU

3 The dispute was allocated to Commissioner Cambridge who convened a compulsory conference of the parties pursuant to s 132 of the IR Act for 7 October 2004. At the conference, Newcrest Mining Limited ("the respondent") indicated that it did not accept that the Commission had any jurisdiction to "exercise any powers under the [IR] Act in relation to this matter and those include powers of conciliation." The proceedings were adjourned to 14 October 2004 when the respondent indicated that it had drafted a notice of motion reflecting its position regarding the Commission's lack of jurisdiction and that it intended to pursue that motion. The CFMEU indicated that upon the motion being filed in the Industrial Registry it would be seeking a reference of the matter to the President of the Commission for decision by a Full Bench of the Commission pursuant to s 193 of the IR Act.

4 The proceedings then took this course. The respondent served Notices under s 78B of the Judiciary Act 1903 (Cth) on the Attorneys-General of each of the States and Territories and the Commonwealth. The Commonwealth and the New South Wales Attorney-General intervened in the proceedings. A Full Bench of the Commission was duly constituted.

5 Whereas the reference under s 193 sought a reference to a Full Bench of the Commission as opposed to the Commission in Court Session, it was the general consensus of the parties at the commencement of the hearing of the respondent's motion that it would be appropriate, pursuant to s 176 of the IR Act, to reconstitute the Full Bench of the Commission as a Full Bench of the Commission in Court Session. This was done. It was also considered appropriate that the matter should be dealt with by the Commission in Court Session invested with the judicial power of the Commonwealth pursuant to s 39(2) of the Judiciary Act 1903 (Cth). The Industrial Relations Commission in Court Session is a superior court of record: see s 152 of IR Act. See also Taudevin v Egis Consulting Australia Pty Ltd (No 2) (2001) 131 IR 124; Veta Limited v Evans [2004] NSWIRComm 336. What was sought by the respondent was a declaratory order under s 154 of the IR Act, and the making of such orders is within the exclusive jurisdiction of the Commission in Court Session.

6 The respondent's notice of motion sought two orders as follows:

1 declaring that the Commission has no jurisdiction to deal with the purported dispute notification dated 23 September 2004 [later amended on 5 November 2004] filed in these proceedings; and

2 that the purported dispute notification be set aside.

7 The two principal grounds upon which the respondent relied in support of the orders sought were that:

1. Upon their proper meaning and construction, the provisions of Chapter 3 Part 1 of the Industrial Relations Act 1996 (NSW) (IR Act) do not operate with respect to employees whose terms and conditions of employment are governed by an Australian Workplace Agreement (AWA) made pursuant to the Workplace Relations Act 1996 (Cth) (WR Act).

2. In particular, the operation of Chapter 3 Part 1 of the IR Act would be inconsistent with the provisions of the WR Act concerning the settlement of disputes between parties to an AWA and, in the present case, the express terms of the AWA in question.

8 It was contended, accordingly, the Commission was without jurisdiction to exercise any power in relation to the CFMEU's dispute notification pursuant to s 132 of the IR Act, such jurisdiction being excluded by the operation of s 109 of the Constitution. Section 109 provides:

109 Inconsistency of laws

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.

9 The application of s 109 was considered by Mason CJ, Deane, Toohey and Gaudron JJ in P v P (1994) 181 CLR 583 at 602 - 603:

If, in such a case, the terms and operation of the Commonwealth law disclose a legislative intent to cover the relevant field, s 109 of the Constitution will apply to render invalid the State or Territory law to the extent that it intrudes within the area validly occupied by the Commonwealth law. If the terms and operation of the Commonwealth law disclose no such legislative intent, the existence and extent of inconsistency between the Commonwealth and the State or Territory laws will depend upon the terms and operation of each. Commonly, when that is so, the State or Territory law will be inconsistent with the Commonwealth law and invalid pursuant to s 109 of the Constitution to, but only to, the extent that it would "alter, impair or detract from" (Victoria v The Commonwealth ("the Kakariki") (1937) 58 CLR 618 at 630 per Dixon J) the Commonwealth law's conferral of jurisdiction by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction (See, generally, McLean, Ex parte (1930) 43 CLR at 484-485; Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529 at 547-548; T.A. Robinson and Sons Pty. Ltd. v. Haylor (1957) 97 CLR 177 at 183; Metal Trades Industry Association v. Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 642- 643, 648.).

10 In these proceedings, as it will become apparent, the respondent contended that the Commonwealth law covered the relevant field and, in any event, there was a direct inconsistency between the Commonwealth law and the relevant State law.

Relevant State law

11 There was no issue between the parties and interveners that Pt 1 of Ch 3 of the IR Act was the relevant State law. Part 1 of Ch 3 consists of six sections and is entitled "Conciliation and Arbitration of Industrial Disputes". "Industrial Dispute" is defined in the Dictionary to the Act as follows:

"Industrial dispute" means a dispute (including a question or difficulty) about an industrial matter, and includes the following:

(a) a demarcation dispute,

(b) a threatened or likely industrial dispute,

(c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken.

12 "Industrial matter" is defined in s 6 of the Act:

(1) General definition

In this Act, "industrial matters" means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

(2) Examples

Examples of industrial matters are as follows:

(a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees),

(b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry,

(c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done),

(d) part-time or casual employment (including part-time work agreements),

(e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry,

(f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies,

(g) procedures for the resolution of industrial disputes,

(h) the established customs in any industry,

(i) the authorised remittance by employers of membership fees of industrial organisations of employees,

(j) the surveillance of employees in the workplace.

13 Section 130 of the Act provides as follows:

130 Notification of industrial dispute to Commission

(1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute:

(a) an industrial organisation of employees or employers,

(b) an employer who is or is likely to be affected by the dispute,

(c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute,

(d) a State peak council.

(2) The Commission may act on its own initiative to resolve an industrial dispute.

14 Section 130 does not provide for the notification of an industrial dispute by a natural person other than in s 130(1)(c). Section 131 of the Act provides that the Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute procedures in an industrial instrument have been followed as far as is practicable in the circumstances.

15 Sections 132 - 134 of the Act provide as follows:

132 Compulsory conference

(1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute.

(2) A compulsory conference is to be presided over by a member of the Commission.

(3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference.

133 Conciliation before arbitration

The Commission must first attempt to resolve an industrial dispute by conciliation.

134 Conciliation of dispute

(1) Commission to assist parties

The Commission, when attempting the conciliation of an industrial dispute, is to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute.

(2) Recommendations or directions

During conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. Failure to comply with any such recommendation or direction may not be penalised but may be taken into account by the Commission in exercising its functions under this Act.

(3) Conferences

The action that may be taken by the Commission to assist the parties includes making arrangements or giving directions for the convening and conduct of conferences of the parties or their representatives (whether or not compulsory conferences and whether or not presided over by a member of the Commission).

(4) Good faith bargaining

The Commission, when dealing with an industrial dispute, must consider whether the parties have bargained in good faith and, in particular, whether the parties have:

(a) attended meetings they have agreed to attend, and

(b) complied with agreed or reasonable negotiating procedures, and

(c) disclosed relevant information for the purposes of negotiation.

The Commission may make recommendations or give directions to the parties to bargain in good faith.

16 It may be seen that a person may be compelled to attend a conference for the purpose of conciliation of an industrial dispute. Conciliation is the primary mechanism for resolving disputes and that is where the emphasis lies, both in terms of the statutory scheme and in practice. The vast majority of disputes notified to the Commission are resolved by conciliation.

17 Sections 135 and 136 deal with the arbitration of an industrial dispute:

135 Arbitration after attempted conciliation

(1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation.

(2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation (certificate of attempted conciliation).

(3) A certificate of attempted conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President.

(4) When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute.

(5) A certificate of attempted conciliation may be issued on the Commission’s own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

(6) The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation.

(7) The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers.

(8) The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation.

(9) Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act.

136 Arbitration of dispute

(1) The Commission may, in arbitration proceedings, do any one or more of the following:

(a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

(c) make a dispute order under Part 2,

(d) make any other kind of order it is authorised to make (including an order made on an interim basis).

(2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

18 The scheme of the arbitration provisions is that if conciliation is unsuccessful the Member of the Commission dealing with the dispute may on his or her own initiative or on the application of any person authorised to notify the Commission of an industrial dispute, issue a certificate of attempted conciliation. Section 135(4) requires certain matters to be considered before the issuing of the certificate. The certificate may only be issued if the Commission is satisfied that there is no reasonable likelihood that the dispute will be resolved by conciliation.

19 The Commission will not lightly issue certificates of attempted conciliation because they signal a failure of the primary dispute settling mechanism under the Act. Such certificates may also be the gateway to sanctions under the Act if the industrial dispute is accompanied by industrial action and a dispute order is later made. Before a certificate is issued the relevant party must be given an opportunity to be heard as to whether a s 134(2) direction should be taken into account: New South Wales Teachers Federation v NSW Department of Education and Training (2000) 100 IR 441 at [15].

20 Conciliation (or more aptly its failure) is, therefore, the jurisdictional prerequisite to the exercise of any powers by the Commission in arbitral proceedings (under s 136(1) of the IR Act).

21 We note that the issue raised by the CFMEU in its dispute notification is the attitude of Newcrest in refusing to discuss with the Union a final written warning that had been issued to one of its members, Mr Tametea, notwithstanding, apparently, that the AWA to which Newcrest and Mr Tametea are parties provides that the employee may be represented by "... another person at any time during the fair treatment procedure". We are not privy to the reasons why Newcrest has adopted the position it has in refusing discussions with the CFMEU in the foregoing circumstances, but it does seem to us the issue is eminently resolvable by a process of conciliation.

The relevant Commonwealth law

22 It was not in issue between the parties that for the purpose of determining whether there is any inconsistency within the meaning of s 109 of the Constitution, an AWA is not a law of the Commonwealth. Presumably, in accepting this, the parties did so on the basis that if it could not be said that an award made under the WR Act was a law of the Commonwealth (see Ex parte McLean at 479 per Isaacs CJ and Starke J and Dixon J at 484; Metal Trades Industry Association of Australia v The Amalgamated Metal Workers' and Shipwrights Union (1983) 152 CLR 632 ("MTIA Case") at 641 per Gibbs CJ, Wilson and Dawson JJ and 648 per Mason, Brennan and Deane JJ, neither could an AWA. The New South Wales Attorney-General took a different view and submitted an award was a law of the Commonwealth but an AWA was not. A distinction was sought to be made on this basis between an inconsistency arising between Federal awards and State laws on the one hand and AWAs and State laws on the other. We accept the position of the parties, namely that neither an award nor an AWA is a law of the Commonwealth.

23 The relevant Commonwealth law is to be found in that part of the WR Act dealing with AWAs, that is, Pt VID. That part provides for the making of agreements between employers and individual employees. It reflects, at least in part, those objects of the WR Act in s 3(b), s 3(c) and s 3(d), namely:

(b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and

(c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and

(d) providing the means:

(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and

(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment.

24 It is unnecessary for the purpose of our consideration in this matter to examine each of the provisions of Pt VID although there are a number of key provisions relied upon by the parties and interveners that require analysis. By way of a general observation, however, we consider the WR Act reveals an intention on the part of the legislature to place the emphasis on local or enterprise agreements rather than continuing the reliance on awards to settle industrial disputes: Re Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at [36] and [245]. The workplace agreements are in the form of collective agreements known as certified agreements (provided for in Part VIB of the WR Act) or agreements between an employer and individual employees, that is, AWAs. Part VID goes to some lengths to partition off the application of Federal awards and collective agreements, State awards and agreements and State laws from intruding into the relationship regulated by an AWA where an AWA has been validly made. The question here is the extent to which Pt VID ousts State laws.

25 The analysis by Mr Greg McCarry (see "Relationships between the Federal and NSW Industrial Relations Systems", (1998) 11 Australian Journal of Labour Law 69, makes it clear that, when focussing on the 1996 Federal legislation and the New South Wales legislation of the same year, the inter-relationship between the two systems of industrial regulation is "complex" and that, we would infer, there is no blanket or straightforward intention expressed by the Federal legislature to exhaustively cover the relevant field of industrial relations.

26 Section 170VC of the WR Act identifies the constitutional underpinning on which Pt VID rests, namely, the corporations power (s 51(xx)), the incidental power (s 51 (xxxix)), the territories power (s 122) and the trade and commerce power (s 51(i)). Section 170VC provides:

An AWA is of no effect unless at least one of the following applies at the time when the AWA is filed:

(a) the employer is a constitutional corporation;

(b) the employer is the Commonwealth;

(c) the employee's primary workplace is in a Territory;

(d) the employer is a waterside employer, the employee is a waterside worker and the employee's employment is in connection with constitutional trade or commerce;

(e) the employee is a maritime employee and the employee's employment is in connection with constitutional trade or commerce;

(f) the employee is a flight crew officer and the employee's employment is in connection with constitutional trade or commerce.

27 A constitutional corporation is defined in s 4 of the WR Act as:

(a) a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; or

(b) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or

(c) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or

(d) a body corporate that is incorporated in a Territory; or

(e) a Commonwealth authority.

28 It was not in issue that the respondent, Newcrest, is a constitutional corporation within the meaning of s 4 of the WR Act and that the AWA that is the subject of these proceedings was validly made. In pressing its case regarding inconsistency, the respondent relied on the fact it was a corporation within the meaning of s 51(xx).

29 Section 170VF relevantly provides that an employer and employee may make an AWA that deals with matters "pertaining to the relationship between an employer and employee". Section 170VG provides, amongst other things, that the AWA must contain a disputes resolution procedure and if it does not the AWA is taken to include the model procedure that is prescribed by the regulations. The section is in the following terms:

170VG Content of AWA

(1) The employer must ensure that the AWA includes the provisions relating to discrimination that are prescribed by the regulations. If the AWA does not in fact include those provisions, the AWA is taken to include those provisions.

(2) The employer must ensure that the AWA does not include any provisions that prohibit or restrict disclosure of details of the AWA by either party to another person.

(3) The employer must ensure that the AWA includes a dispute resolution procedure. If the AWA does not in fact include a dispute resolution procedure, the AWA is taken to include the model procedure that is prescribed by the regulations.

(4) A dispute resolution procedure that is included in an AWA under subsection (3), or prescribed by the regulations for the purposes of subsection (3), may confer powers on the Commission to settle disputes between the parties to the AWA about the application or interpretation of the AWA. The Commission may exercise those powers.

30 There are two things to be noted about the provisions of s 170VG(3) and s 170VG(4). Firstly, the provisions are facultative (the AWA binding on Newcrest and Mr Tametea does not provide for any involvement of the Australian Commission). Secondly, the power of the AIRC is limited to the settlement of disputes between the parties to the AWA about the application or interpretation of the AWA (our emphasis).

31 Section 170VH provides for the duration and expiry date of an AWA. The section is in the following terms:

170VH Nominal expiry date of AWA

(1) An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.

(2) If no date is specified, then the nominal expiry date is the 3rd anniversary of the AWA date.

(3) An employer and employee may make a written agreement that extends the nominal expiry date. The extended date cannot be more than 3 years after the AWA date.

(4) The extension agreement has no effect unless a filing receipt is issued for the extension agreement at least 21 days before the nominal expiry date that is to be extended.

(5) The extension agreement takes effect on the day after an approval notice is issued for the extension agreement.

32 Section 170VJ(2) provides that, in respect of an existing employee, an AWA ceases to operate at the earlier of the following times: (i) the time when a termination under s 170VM takes effect (s 170VM provides that an AWA may be terminated by agreement of the parties at any time or by the Australian Industrial Relations Commission); or, (ii) the time when another AWA between the employer and employee starts to operate. The AIRC may terminate the AWA after its nominal expiry date has been reached on application by either party, if the Commission considers it is not contrary to the public interest to do so: s 170VM(3).

33 Section 170VT provides that a party to an AWA must not breach the AWA. None of these sections, in our opinion, either individually or collectively, evince an intention on the part of the legislature that Pt VID is to cover the field to the extent contended for by the respondent. There are, however, two other sections that the respondent relied upon specifically. These are s 170VQ and s 170VR.

34 Section 170VQ provides:

Effect of AWA on awards and agreements

(1) During its period of operation, an AWA operates to the exclusion of any award that would otherwise apply to the employee's employment. This subsection has effect subject to subsections (2) and (3).

(2) An AWA is of no effect if it is made:

(a) after the commencement of an award that is made under subsection 170MX(3) and applies to the employee's employment; and

(b) before the nominal expiry date of the award.

(3) An AWA does not operate to the exclusion of an exceptional matters order, but prevails over an exceptional matters order to the extent of any inconsistency.

(4) During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment.

(6) The relationship between an AWA and a certified agreement is as follows:

(a) a certified agreement prevails over the AWA to the extent of any inconsistency if:

(i) the certified agreement is in operation at the time the AWA comes into operation; and

(ii) the nominal expiry date of the certified agreement is after the date on which the AWA comes into operation; and

(iii) the certified agreement does not expressly allow a subsequent AWA to operate to the exclusion of the certified agreement or to prevail over the certified agreement to the extent of any inconsistency;

(b) a certified agreement that comes into operation after the nominal expiry date of the AWA prevails over the AWA to the extent of any inconsistency;

(c) in all other cases, the AWA operates to the exclusion of any certified agreement that would otherwise apply to the employee's employment.

35 Section 170VR provides:

Effect of AWA on other laws

(1) Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.

(2) Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:

(a) occupational health and safety;

(b) workers' compensation;

(c) apprenticeship;

(d) any other matter prescribed by the regulations.

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the AWA.

(4) To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

(5) In this section:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.

Respondent's case

36 Before proceeding to deal with the relevant provisions of s170VQ and s 170VR, the respondent's case (supported by the Commonwealth) was that the Commonwealth Parliament intended AWAs to be the paramount form of industrial regulation to the exclusion of otherwise applicable State laws and instruments. This, it was submitted, was evident from s 170VQ and s 170VR in particular. It was further submitted that s 170VG(3) of the WR Act requires AWAs to include a dispute resolution procedure and that was the case in respect of the AWA that applied to Newcrest's operations. Clause 17 of the Newcrest AWA provided for, amongst other things, the resolution of "employee grievances" and clearly pertained to the relationship between the respondent and its employee, Mr Tametea, and bestowed rights and obligations upon each of them.

37 In referring to the scheme of Pt 1 of Ch 3 of the IR Act, the respondent submitted it provided for a dispute resolution procedure about matters concerning the rights and obligations of the employer and employees, that is about matters pertaining to the relationship between employers and employees and thereby an inconsistency arose between Pt VID of the WR Act and Pt 1 of Ch 3 of the IR Act.

38 The respondent contended that s 170VT of the WR Act required it to observe the terms of the AWA and, therefore, conduct itself in accordance with cl 17 of the AWA and insist that Mr Tametea also observe its terms. The respondent submitted that it could not be compelled to comply with a contrary or different procedure, nor could a State law impose a different procedure for dealing with matters that fell within the terms and operation of the AWA, including cl 17.

39 It was submitted for the respondent that the case provided a clear example of inconsistency between federal and State laws within the meaning of s 109 of the Constitution where the operation of a State law would detract from the full operation of a federal law: Ex parte McLean (1930) 43 CLR 472 at 483; The State of Victoria & Ors v The Commonwealth of Australia and Ors (1937) 58 CLR 618 at 630; Commonwealth v State of Western Australia (1999) 196 CLR 392 at 415, 439, 449 - 450 and Telstra Corporation Limited v Worthing (1999) 197 CLR 61 at 76.

40 In this respect, the respondent relied, in particular, on the formulation of Dixon J in Victoria v The Commonwealth at 630:

When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.

41 Although a focus of the respondent's case was on how the invocation of the Commission's powers under Pt 1 of Ch 3 of the IR Act would directly "alter, impair or detract" from the terms of the AWA, it is apparent that the respondent was also contending that Part VID of the WR Act evinces an intention to "cover the field" (see the initial formulation of this test by Isaacs J in Clyde Engineering Co Lt v Cowburn (1926) 37 CLR 466 at 489 - 490 and adopted by Dixon J in Ex parte McLean at 483).

42 The direct inconsistency contended for by the respondent between the operation of Ch 3 Pt 1 of the IR Act and the provisions of the WR Act was to the effect that Pt VID authorises the making of an AWA that by its express terms provides for the settlement of disputes. That being the case, the dispute settling procedure in Pt 1 of Ch 3 was said to be inconsistent with Pt VID because it imposed a different procedure for dealing with matters that fell within the terms and operation of the AWA, including cl 17.

Whether Part VID evinces an intention to "cover the field"

43 The respondent's concept of what constituted the "field" covered by Pt VID of the WR Act was not explicitly stated. It would appear, however, the field contended for was all matters pertaining to the relationship between an employer and employee in circumstances where an AWA applies to the relationship (subject to the exceptions in Part VID). The field for which the respondent contended was a wide one. It extended to the proposition that the Commission is precluded from exercising its conciliation and arbitration powers under Pt 1 of Ch 3 of the IR Act in circumstances where an AWA applies to an employment relationship. The respondent's position was, in effect, that Part VID invalidates Pt 1 of Ch 3 of the IR Act by extinguishing the Commission's jurisdiction to resolve a dispute by conciliation and arbitration where an AWA applies.

44 We do not consider the respondent is correct. In this respect, an appropriate starting point is to consider the relevant head of power in this case authorising Pt VID, namely the corporations power in s 51(xx) of the Constitution. In Dingjan; Ex parte Wagner (1995) 183 CLR 323 the High Court (Brennan, Dawson, Toohey and McHugh JJ, Mason CJ, Deane and Gaudron JJ dissenting) held that s 127C(1)(b) and s 127A and s 127B of the Industrial Relations Act 1988 (Cth) were not laws with respect to corporations within s 51(xx) of the Constitution. Four of the Justices considered the corporations power in s 51(xx) was a plenary power (per Mason CJ at 333 - 334, per Toohey J at 352 - 353, per Gaudron J at 364, per McHugh J at 368). Nevertheless, the majority considered s 51(xx) had its limitations.

45 McHugh J expressed the limitation this way (at 369):

It is not enough, however, to attract the operation of s 51(xx) that the law merely refers to or operates upon the existence of a corporate function or relationship or a category of corporate behaviour. The activities, functions, relationships and business of s 51(xx) corporations are not the constitutional switches that throw open the stream of power conferred by s 51(xx). In Actors and Announcers Equity Association of Australia v Fontana Films Pty. Ltd.(120), Brennan J said:

"It is of the nature of the power that it is a power to make laws with respect to corporate persons, not with respect to functions, activities or relationships."

So, where a law seeks to regulate the conduct of persons other than s 51(xx) corporations or the employees, officers or shareholders of those corporations, the law will generally not be authorised by s 51(xx) unless it does more than operate by reference to the activities, functions, relationships or business of such corporations. A law operating on the conduct of outsiders will not be within the power conferred by s 51(xx) unless that conduct has significance for trading, financial or foreign corporations. In most cases, that will mean that the conduct must have some beneficial or detrimental effect on trading, financial or foreign corporations or their officers, employees or shareholders (our emphasis).

46 Toohey J observed (at 353):

In the case of s 51(xx) the law must operate on the rights, duties, powers or privileges of corporations in such a way as to evidence a sufficient connection between the law and the corporations (our emphasis). It is not enough to identify corporations as a reference point so as to affect the activities of others.

47 Dawson J held that before a law may be said to be with respect to corporations, the way in which it operates upon them must be such that the corporations impart their character to the law.

48 Brennan J held that to attract the support of s 51(xx) a law must discriminate between constitutional corporations and other persons, either by reference to the persons on whom it confers rights or privileges or imposes duties or liabilities, or by reference to the persons whom it affects by its operation.

49 At 339 Brennan J observed:

The legislative power conferred by s 51 (xx) is not a power to make laws with respect to things relating to corporations or things relating to the businesses of corporations. A law of that kind bears the character of a law with respect to constitutional corporations only if the relationship governed by the law affects constitutional corporations in a discriminatory manner. If this be the test by which the character of a law is determined, constitutional corporations must be affected in some respect sufficiently material to give significance to their discriminatory treatment (our emphasis).

50 In dissenting, Mason CJ considered there was a sufficient connection with the head of power if "the contract 'relates to' the business operations of the corporation in a substantial and significant practical sense, even if the relationship is only indirect" [at 335].

51 Gaudron J, with whom Deane J agreed, also dissented from the majority views, taking a broader view of the constitutional power. Her Honour, however, did not consider there was a requirement that any connection between the law and the head of power needed to be "significant" or "substantial".

52 It may be accepted that where there is a law authorised by s 51(xx) relating to the making and operation of AWAs, and the law protects the employer corporation and/or its employee(s) from the detrimental effect of the conduct of third parties there will be a sufficient or substantial or significant connection between that law and the trading, financial or foreign corporation that is a party to the AWA, and the law will be a valid law: see, for example, Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 where s 45D of the Trade Practices Act 1974 (Cth), which prohibited secondary boycotts, was held to be supported by s 51(xx) because it afforded protection to constitutional corporations from conduct calculated to cause damage.

53 Hence s 170VQ of the WR Act, which provides that "an AWA operates to the exclusion of a State award or State agreement that would otherwise apply to the employee's employment", would appear to be a law supported by s 51(xx) because it may be said it protects in a direct way the "activities, functions, relationships or business" of the corporation party to an AWA. For the purpose of considering the respondent's motion in this matter, we will proceed on the assumption that s 170VQ is a valid Commonwealth law but for reasons that follow we consider there are limits to the extent to which the corporations power can be used to support a law to exclude a State award or State agreement.

54 A State award is defined in s 4 of the WR Act to mean "an award, order, decision or determination of a State industrial authority". It may be noted the definition of State award does not extend to a "recommendation" in s 134(2) of the IR Act and so, to that extent, no direct inconsistency could be said to arise. A State agreement is defined in s 170VA to mean "an employment agreement made under, or for the purposes of, a law of a State."

55 The term 'State Industrial Authority' is defined in s 4 of the WR Act to mean:

(a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State;

(b) a special board constituted under a State Act relating to factories; or

(c) any other State board, court, tribunal, body or official prescribed for the purposes of this definition.

56 Any award or order made by this Commission in settlement of an industrial dispute would be an 'award' made by a 'State Industrial Authority' within the meaning of s 170VQ(4) of the WR Act but a recommendation would not.

57 In The Queen v The Commonwealth Conciliation and Arbitration Commission and Ors; Ex parte The Transport Workers' Union of Australia (1967) 119 CLR 529 Barwick CJ stated at 537-538:

Because of the provisions of the Stevedoring Industry Act 1956-1965 (Cth), the [Commonwealth Conciliation and Arbitration] Commission had no jurisdiction by its award in this matter to deal with work to be done in the terminals, and accordingly it made no award in respect of that work. However, it issued what it termed a recommendation proposing a course of action to be followed by the employers and by the unions concerned in relation to work in the terminals. Whilst in a sense the recommendation is complementary to the award, it is not an award or part of an award, nor is it in any sense a binding instrument, however useful and wise it may have been in an industrial sense that it should have been made. Accordingly, that recommendation cannot be the subject of prohibition.

58 Menzies J and Owen J made similar findings at 555 and 559 respectively. The description by Barwick CJ of the recommendation of the Commonwealth Commission is apposite here; a recommendation made pursuant to s 134(2) of the IR Act is not an award or part of an award nor is it a binding instrument. That the Commission may take into account any failure to comply with a recommendation, makes no material difference to the fact that a recommendation is not an award, the latter which is legally binding on the parties to it (and failure to comply with an award may attract a penalty).

59 It may be seen from the language of s 170VQ that it does not purport to invalidate a State award or State agreement, including one that might otherwise have applied to the employment of an employee who is a party to the AWA. In this respect, it is to be noted that s 152(1) of the WR Act, in relation to the operation of awards, provides in stark contrast:

(1) Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.

60 The predecessor to s 152(1) was s 65 of the Conciliation and Arbitration Act 1904 (Cth), which read as follows:

Where a State law, or an order, award, decision or determination of a State Industrial Authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.

61 In the MTIA case, Mason, Brennan and Deane JJ at 648 - 649 considered s 65 to be of "paramount importance" because it was "the expression of the statutory intention that the arbitrator's exercise of power is to operate to the exclusion of any State law." At 649 their Honours stated:

Unfortunately s 65, like s 109, is couched in terms which purport to invalidate an inconsistent State law, rather than in terms of a declaration that the award is to have an exclusive operation. Moreover, its language goes beyond the language of s 109. This has resulted in some speculation as to its validity (see Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529, at pp 548-549). This speculation may be put to one side because it has been accepted in the cases to which we have referred and in Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley (1980) 142 CLR 237 at pp 260-261, 277-280, that s 65 is to be regarded as evincing a statutory intention that an award made pursuant to the Act is to operate to the exclusion of any State law. So much is made evident by the inclusion in s 65 of the words not found in s109 which relate to the operation of a State law which "deals with a matter dealt with in" an award.

The critical question then is: What is the conduct or matter with which the relevant awards deal? For the effect of s 65 is to make the provisions of the awards exclusive in relation to that conduct or matter and thus to make it inconsistent for the law of a State to govern what is dealt with by the awards. The section contradicts the hypothesis that the award provisions are intended to operate side by side with the provisions of a State law dealing with that conduct or matter.

62 In Dao v Australian Postal Commission (1987) 162 CLR 317 Mason CJ, Deane, Dawson and Toohey JJ appear to have placed even greater significance on s 65 in stating at 337:

[In] a situation where it is said that a State law is inconsistent with the provisions of an award made or agreement registered under the Conciliation and Arbitration Act, it must be remembered that in those circumstances the question of inconsistency can arise only because of the provisions of s 65 of that Act.

63 An award is not defined in the WR Act to include an AWA and Pt VID of the WR Act contains no counterpart to s 152(1). Further, s 153 of the WR Act confers jurisdiction on the Federal Court to resolve any constitutional conflict issue about the relationship between a Federal award and a State law but no similar provision exists in Pt VID.

64 Despite the observations by the High Court in the MTIA case and in Dao, the legislature has chosen not to use the language of s 152(1) in relation to Pt VID. Rather, the legislature took the somewhat more limited approach of simply excluding a State award or State agreement from applying to an employee's employment where the employee was a party to an AWA. Counsel for the Attorney General for New South Wales submitted the effect of s 170VQ(4) was that it simply insulates the AWA itself within its own confines from the operation of a State Award". To this extent it might be said that the AWA "covers the field" but an AWA is not a Commonwealth law and it does not follow, therefore, that a constitutional inconsistency arises between an AWA and the relevant provisions of the IR Act. The inconsistency may be said to arise because s 170VQ(4), underpinned by the corporations power, provides that during its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment. The limit of the inconsistency, in our opinion, is only to the extent that an AWA, to which a corporation and an employee are party, applies to the employee's employment whilst the AWA remains on foot. The State award or State agreement is otherwise unaffected and following termination of the AWA will once again apply to the employee's employment provided there is no other supervening Federal instrument that may give rise to an inconsistency.

65 There is nothing in s 170VQ to suggest that a State award or State agreement that would otherwise have applied to an employee's employment is invalidated or that the reach of s 170VQ extends to precluding the Commission from making such an award or agreement. Whether the Commission did so would be a matter for its discretion, not a matter dictated by the terms of the Commonwealth law. In other words, an AWA and a State award or State agreement may stand side by side but the award or agreement will be excluded from applying to the employment of the employee who is a party to the AWA if, but for the AWA, the award or agreement would have applied to that employment.

66 In fact, by its language s 170VQ recognises that there may be State awards or agreements that apply to an employee's employment in circumstances where the employee is a party to an AWA. That is, s 170VQ recognises such awards or agreements have been made and may continue to be made, but where the award or agreement applies to the employment of an employee who is a party to the AWA, the award or agreement will be excluded by the AWA.

67 We take the example of a registered organisation of employees that may notify the Commission of the existence of an industrial dispute. The Commission may decide to make a common rule award in settlement of the dispute. But for the existence of an AWA the employer corporation and the employee that are party to the AWA might be subject to the terms of the common rule award applying to a particular industry or occupation.

68 It may be accepted that the common rule State award that would otherwise apply to the employment of the employee who is party to the AWA would be excluded from so applying. The proposition, however, inherent in the respondent's position, that s 170VQ precludes the Commission from exercising its conciliation and arbitration powers to make such an award in the first place because it would, but for the AWA, apply to an employee's employment, is untenable. The corporations power is not a power that authorises laws the effect of which would be to extinguish the power of a State Industrial Authority to make common rule awards or exercise its conciliation and arbitration powers to resolve an industrial dispute merely because of the existence of AWAs. Such a law would not have the requisite connection to the corporation in the manner required by McHugh or Toohey JJ in Dingjan nor meet the "discriminatory operation" test of Brennan J in that case. (We note that a question may arise as to whether a Commonwealth law that sought to render inoperative the power of a State Industrial Authority to make awards, "impermissibly interfered with the governmental functions of a State": Austin v Commonwealth (2003) 77 ALJR 491 at [151] and the cases referred to therein regarding the limitation upon the powers of the Commonwealth Parliament that prevent it from discriminating against the States).

69 The language of s 170VQ is arguably consistent with the limitations inherent in s 51(xx). The limits of s 51(xx) in protecting the interests of the corporation and its employees who are parties to an AWA are reflected in s 170VQ(4). That is, the AWA during its period of operation, operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment. Section 51(xx) does not authorise a law that goes so far as to extinguish the Commission's jurisdiction to deal with industrial disputes by conciliation and arbitration. That the Commission may be asked to deal with an industrial dispute by a union that is in dispute with a constitutional corporation party to an AWA produces no different conclusion. In exercising its powers of conciliation and arbitration the Commission is not confined to resolving the dispute in the manner proposed by a particular party to the dispute and the resolution determined by the Commission may have no implications for the operation of the AWA in the sense that any order or award made may not have any application to the employment of the employee party to the AWA.

70 That s 170VQ could not be said to cover the field in the manner contended for by the respondent may be further illustrated by the fact that an AWA may only be entered into, in the case of an employer, by one that satisfies the requirements of s 170VC and by an individual employee (subject to the provisions of s 170VE). Section 170VQ(4), or for that matter Pt VID, cannot validly say anything about a dispute between a constitutional corporation and a registered organisation of employees such as the CFMEU. On the other hand, the dispute that has been notified to the Commission in this case is one between Newcrest, a constitutional corporation, and the CFMEU. It is impossible in those circumstances to accept that Pt VID covers the field in the manner contended for by the respondent.

71 Section 170VR(1) provides that an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency. We note that the definition of "State law" in s 170VR(5) does not include a State award or State agreement. It would be, as counsel for the Attorney General for New South Wales remarked, "highly surprising" if s 170VR(1) did not apply to an award that the Commission might make in resolution of an industrial dispute but did apply to the exercise of the Commission's powers in resolving the dispute by precluding the exercise of those powers.

72 In any event, s 170VR does not evince an intention to cover the field in respect of matters pertaining to the relationship between an employer and employee in circumstances where an AWA applies to the relationship. Section 170VR(1) provides that "Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency." Section 170VR limits the field covered to "conditions of employment". The provisions of Pt 1 of Ch 3 of the IR Act cannot be described as "conditions of employment specified in a State law". The proper characterisation of Pt 1 of Ch 3 is a law that provides for notifications by organisations and persons of industrial disputes and the resolution of those disputes by means of compulsory conciliation and arbitration.

73 The Commonwealth referred to the definition of conditions of employment provided by Isaacs and Rich JJ in Australian Tramway Employees Association v Prahran and Malvern Tramway Trust and Ors (1913) 17 CLR 680 at 693 as follows:

The "conditions" of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.

74 Counsel for the Commonwealth submitted that "conditions of employment" as that term appears in s 170VR(1) must mean more than conditions of the kind that are peculiar to an individual contract of employment or to a particular award because such conditions would not generally appear in an Act of Parliament. This proposition, in our opinion, is unsustainable in the face of New South Wales statutes such as the Annual Holidays Act 1944 and the Long Service Leave Act 1955.

75 It was further submitted that the matters in Pt 1 of Ch 3 are such matters in that they provide a means by which employees, through their unions, may achieve a resolution of industrial disputes about "industrial matters" which, in turn, are "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry": see definition of "industrial matters" in s 6 of IR Act. Counsel for the Commonwealth submitted that the matters encompassed by the definition of industrial matters in the IR Act were matters of the same character and for the same purpose as the matters in cl 17 of the AWA.

76 The expression "conditions of employment" is defined in the Dictionary to the IR Act as including "any provisions about an industrial matter." As the Full Bench observed in Review of the Principles for Approval of Enterprise Agreements, Re 2002 (2002) 121 IR 144 at 149, there is some circularity involved in attempting to distinguish between "conditions of employment" and "industrial matter" in the IR Act because whilst the definition of conditions of employment includes any provisions about an industrial matter, an example of an "industrial matter" as defined in s 6 of the IR Act includes "the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done)".

77 Nonetheless, the Full Bench considered that, prima facie, the expression "conditions of employment" should be construed according to its ordinary meaning which, as the Full Bench in Correctional Health Services Award, Re (1999) 90 IR 235 at 244, stated:

[R]efers to an obligation of one of the parties to the contract of employment to the other person to the contract.

78 Part 1 of Ch 3 does not bestow any privileges, rights, duties or obligations on a party to an employment contract. A process for the notification of industrial disputes and the resolution of those disputes by conciliation and arbitration as set out in Pt 1 of Ch 3 of the IR Act could not, without seriously misusing language, be described as "conditions of employment".

79 There are a large number of references to "conditions of employment" in the WR Act but nowhere is that term defined, although it seems to us the term is used throughout the Act in the context of rights, privileges and duties bestowed on employees by an award or agreement. We do note, however, s 3 Principal object of this Act, of the WR Act provides:

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:

...

(d) providing the means:

(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and

(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment ...

...

(h) enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration;

80 Clause 3 makes a clear distinction between the determination and maintenance of conditions of employment and the process for preventing and settling industrial disputes by conciliation and arbitration.

81 We also note that s 170LZ(1) of the WR Act provides that a certified agreement prevails over "terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of an inconsistency". This reinforces our conclusion that "conditions of employment" in s 170VR(1) are words of limitation and do not evince an intention to prevail over processes in Pt 1 of Ch 3 of the IR Act dealing with the notification and resolution of industrial disputes by conciliation and arbitration.

Direct inconsistency

82 The respondent contended that there was a direct inconsistency between the provisions of s 170VG of the WR Act, which provides for the inclusion of a dispute resolution procedure in any AWA and the provisions of Pt 1 of Ch 3 of the IR Act, which provides for a dispute resolution procedure about matters concerning the rights and obligations of the employer and employees, that is about matters pertaining to the relationship between employers and employees.

83 Further, it was submitted s 170VT of the WR Act required the respondent to observe the terms of the AWA and, therefore, conduct itself in accordance with cl 17 of the AWA and insist that Mr Tametea also observe its terms. The respondent submitted that it could not be compelled to comply with a contrary or different procedure, nor could a State law impose a different procedure for dealing with matters that fell within the terms and operation of the AWA, including cl 17. The respondent contended that the inconsistency arose at the time the Commission attempted to invoke its jurisdiction under Pt 1 of Ch 3 of the IR Act.

84 We do not accept in this case that an inconsistency arises between the terms of Pt VID of the WR Act and Pt 1 of Ch 3 of the IR Act at the time the Commission seeks to invoke its jurisdiction, if at all. At best an "operational inconsistency" (see The State of Victoria & Ors v The Commonwealth of Australia and Ors (1937) 58 CLR 618 at 631 per Dixon J; Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392 at 416 per Gleeson CJ and Gaudron J) may arise in the event the Commission were to make an award or order that was inconsistent with the terms of the AWA and if that were to occur s 170VQ(4) would apply but only during the period of operation of the AWA. No inconsistency would arise, for example, if the Commission limited the exercise of its power under Pt 1 of Ch 3 to the making of a recommendation or made an award or order that did not apply to Mr Tametea's employment or made an award or order that took effect after the termination of the AWA.

Conclusion

85 We find that the respondent has not made out its case either on the basis of the "cover the field" test or the "direct inconsistency" test that Pt 1 of Ch 3 of the Industrial Relations Act 1996 has no operation in the manner claimed by the respondent.

86 The Commission has power to deal with the notification of an industrial dispute by the CFMEU filed in the Industrial Registry on 5 November 2004. Accordingly, the respondent's notice of motion is dismissed and we so order.

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LAST UPDATED: 22/02/2005