2008 WAIRC 01732

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2008 WAIRC 01732

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER S J KENNER

HEARD
:
TUESDAY, 14 OCTOBER 2008
FINAL SUPPLEMENTARY WRITTEN SUBMISSIONS FILED ON 15 OCTOBER 2008 AND 21 OCTOBER 2008

DELIVERED : WEDNESDAY, 17 DECEMBER 2008

FILE NO. : FBM 5 OF 2008

BETWEEN
:
MARINA SALDANHA
Applicant

AND

FUJITSU AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER S WOOD
FILE NO : B 25 OF 2008

CatchWords:
Industrial Law (WA) – Questions of law referred to the Full Bench pursuant to s27(1)(u) of the Industrial Relations Act 1979 (WA) (the Act) – Application for denial of contractual benefits referred under s29(1)(b)(ii) of the Act – Jurisdiction of the Commission with respect to employees and employers of constitutional corporations – Whether s16 of the Workplace Relations Act 1996 (Cth) (the WRA) excludes the jurisdiction of the Commission to enquire into and deal with claims referred to it under s29(1)(b)(ii) by an employee or former employee of a constitutional corporation - Whether the WRA covers a field which includes this jurisdiction – Whether this would be contrary to s106 of the Constitution – Whether the Workplace Relations Regulations 2006 (the WRR) ‘save’ the jurisdiction of the Commission over some claims – Questions answered - Commission’s jurisdiction is excluded.


Legislation:
Australian Constitution - s51(vi), s51(xx), s77, s77(iii), s106, s109

Industrial Relations Act 1979 (WA) - s7(1), s7(1a), 23(1), s26, s26(1), s26(1)(a), s26(1)(b), s26(1)(d)(iii), s26(2), s27(1)(u), s29, s29(1)(b), s29(1)(b)(ii), s44

Acts Interpretation Act 1901 (Cth) - s15AA, s15AB

Defence Force Discipline Act 1982 (Cth) - s3(1), s190(3), s190(5)

Fair Work Act 1994 (SA) - s14

Industrial Relations Act 1996 (NSW) - s146(1)(d)

Judiciary Act 1903 (Cth) - s78B

Legislative Instruments Act 2003 (Cth) - s20, s26

Trade Practices Act 1979 (Cth) - s45D

Workplace Relations Act 1996 (Cth) - s3, s3(d), s3(e), s4, s4(1), s5, s5(1), s6, s6(1), s6(1)(a), s7, s16, s16(1), s16(2), s16(3), s16(4), s117, s166B, Part 7, Part 8, Part 9, Part 16, s404, s643, s643(1), s717, s718, s726, s785, s785(1), s785(1)(e), s785(1)(f)

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

Workplace Relations Regulations 2006 (Cth) - Chapter 2, reg 1.2, reg 1.2(1)


Result:
Questions Answered

REPRESENTATION:
Counsel:
APPELLANT : MR K M PETTIT SC, BY LEAVE
RESPONDENT : MS F A STANTON (OF COUNSEL), BY LEAVE
Solicitors:
APPELLANT : NOT APPLICABLE
RESPONDENT : MCCALLUM DONOVAN SWEENEY BARRISTERS AND SOLICITORS


Case(s) referred to in reasons:

Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254
Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169
Apla Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322
Armanini v Transfield Services (Australia) Pty Ltd (2007) 162 IR 432
Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542
Aufgang v Kozminsky Nominees Pty Ltd [2008] VSC 27
Australasian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165
Balfour v Travelstrength (1980) 60 WAIG 1015
BGC (Australia) Pty Ltd v Phippard (2002) 82 WAIG 2013
Burwood Cinema Ltd v Australian Theatrical and Amusement Employees Association (1925) 35 CLR 528
Caltex Oil (Aust) Pty Ltd v Feenan [1981] 1 NSWLR 169
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Coles Myer Ltd v Coppin (1993) 11 WAR 20; (1993) 73 WAIG 1754
Construction, Forestry, Mining and Energy Union (NSW) v Brolrik Pty Ltd (2007) 167 IR 214
Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598
Dahlia Mining Company Ltd v Collector of Customs (1989) 17 NSWLR 688
Dohrmann v Bell Potter Securities Limited [2008] SAIRC 3
Ex parte McLean (1930) 43 CLR 472
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Head v Adrad (2008) 170 IR 359
Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service (2008) 88 WAIG 543
Health Services Union of Western Australia (Union of Workers) v Director General of Health (2007) 87 WAIG 737
Helm v Hansley Holdings Pty Ltd (in liq) [1999] WASCA 71; (1999) 79 WAIG 1860); (1999) 118 IR 126
Hotcopper Australia Ltd v Saab (2002) 82 WAIG 2020
Jaffer v BDS Recruit Pty Ltd [2007] SAIRC 97; (2007) 169 IR 97
Le Mesurier v Connor (1929) 42 CLR 481
Leeth v The Commonwealth (1991) 174 CLR 455
Lipohar v The Queen (1999) 200 CLR 485
Luton v Lessels (2002) 210 CLR 333
Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121
Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 56; (2004) 84 WAIG 2152
McGinty v Western Australia (1996) 186 CLR 140
New South Wales v The Commonwealth [2006] HCA 52; (2006) 229 CLR 1; (2006) 231 ALR 1; (2006) 81 ALJR 34; (2006) 156 IR 1
O’Grady v Northern Queensland Co Ltd (1990) 92 ALR 213
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211
Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307
Phillips v TR7 Pty Ltd (2006) 86 WAIG 2646
Powers v Maher (1959) 103 CLR 478
Prentis v Atlantic Coast Line Co 211 US 210 (1908)
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Findlay; Ex parte The Commonwealth Steamship Owners’ Association (1953) 90 CLR 621
Re Australian Education Union; Ex Parte Victoria (1995) 184 CLR 188
Re Nolan; Ex parte Young (1991) 172 CLR 460
Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346
Re Totalisator Administration Board of Queensland (1989) 1 Qd R 215
Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518
Repatriation Commission v Vietnam Veteran’s Association (2000) 48 NSWLR 548
Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11
Shergold v Tanner (2002) 209 CLR 126
Simons v Business Computers International (1985) 65 WAIG 2039
Slee and Stockden Pty Ltd v Blewitt (1992) 47 IR 104
Slonin v Fellows (1984) 154 CLR 505
Smith v Albany Esplanade Pty Ltd t/a The Esplanade Hotel (2007) 87 WAIG 509
The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) (2004) 85 WAIG 629
The Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 1199
Tristar Steering and Suspension Limited v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104; (2007) 240 ALR 62 (2007) 161 IR 469
Truong v The Queen (2004) 223 CLR 122
Victoria v Commonwealth (1937) 58 CLR 618 (Kakariki/Shipwreaks Case)
Walden v Hansley Holdings Pty Ltd t/as GIS Engineering (1998) 78 WAIG 3370
Waroona Contracting v Usher (1984) 64 WAIG 1500
Welsh v Hills (1982) 62 WAIG 2708
Wenn v Attorney-General (Vic) (1948) 77 CLR 84
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373
Wilson v Anderson (2002) 213 CLR 401
Yougarla v Western Australia (2001) 207 CLR 344


Case(s) also cited:

Forster v Australia Imperial Financial Services Pty Ltd (2007) 87 WAIG 2485



Reasons for Decision

RITTER AP:

Introduction
1 Pursuant to s27(1)(u) of the Industrial Relations Act 1979 (WA) (the Act) Wood C, with my consent, has referred to the Full Bench two questions of law for hearing and determination. The questions arose in an application before Wood C in which the applicant, as a former employee, has made a claim under s29(1)(b)(ii) of the Act against the respondent for the alleged denial of contractual benefits.
2 The answers to the questions will determine whether the Commission has jurisdiction over the applicant’s claim. The issue arises because of the amendments to the Workplace Relations Act 1996 (Cth) (the WRA), which were effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the Work Choices Act) and the making of the Workplace Relations Regulations 2006 (Cth) (the WRR). Both the amended WRA and the WRR generally commenced on 27 March 2006.
3 As will be set out, the Work Choices Act, at least to some extent, removes “constitutional corporations”, as defined in the WRA, from the coverage of the industrial relations systems of the States, including the Commission under the Act. It is not in issue that the respondent is a constitutional corporation. It is also agreed that the applicant had a common law contract of employment, which had now ceased, with the respondent. That contract was not affected by any federal or State industrial instrument.
4 Chapter 2 of the WRR contains some transitional provisions which have the effect of preserving the jurisdiction of the Commission to hear and determine some matters which originated before 27 March 2006. It is part of the applicant’s case that at least some of her claim satisfies that criteria; even though, as will be set out, it is not her primary position to rely on the transitional provisions.

The Questions of Law
5 The two questions of law which are referred are:
“1. Does s16 of the WRA exclude the jurisdiction of the Industrial Relations Commission of Western Australia to enquire into and deal with a claim referred to it under s29(1)(b)(ii) by an employee or former employee of a constitutional corporation, subject to any applicable exceptions contained in the Workplace Relations Act 2006 (Cth) (the WRA), the Workplace Relations Regulations 1996 (Cth) (the Regulations) and/or any other legislation or subsidiary legislation validly enacted or made by the Commonwealth of Australia.

2. If the answer to (1) is yes, does regulation 1.2(2) of the Regulations preserve the jurisdiction of the Industrial Relations Commission of Western Australia to enquire into and deal with a claim referred to it under s29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) by an employee or former employee of a constitutional corporation in respect of an act or omission or a series of acts or omissions, some or all of which occurred prior to 27 March 2006.”

6 The second question (question 2) involves a mistake in that “regulation 1.2(2)” should read “chapter 2, regulation 1.2(2)”. So that the orders to be made by the Full Bench are clear, the question should be amended in the orders we make. For ease of reference however in my reasons I intend to denote the number of the chapter of the WRR in bold, so that chapter 2, regulation 1.2(2) will be 2.1.2(2).

The Parties Answers to the Questions
7 The respondent, who raised the issue of jurisdiction before Wood C, argues that the questions should be answered:
1. Yes
2. No
8 The applicant’s position is that the answer to the questions should be:
1. No
2. Not applicable and/or no, but alternatively yes if the answer to 1 is yes.

Section 78B Notices
9 The determination of the questions “involves a matter arising under the Constitution or involving its interpretation”, within s78B of the Judiciary Act 1903 (Cth). Accordingly at the direction of the Full Bench the respondent provided reasonable notice of the proceeding to the Attorneys-General of the Commonwealth and the States “specifying the nature of the matter” so that they could consider whether to intervene in the proceeding or seek its removal to the High Court. Each of the Attorneys-General has advised they do not wish to take the former course or the latter course at this stage.

Background to the Referral
10 The questions were referred to the Full Bench for determination because it had been in effect requested by the applicant, the process was agreed to by both parties and it was seen as an effective way of resolving a difference of opinion between single Commissioners about whether the Commission had jurisdiction to hear and determine the claim. The difference is exemplified by the decisions of Smith SC in Smith v Albany Esplanade Pty Ltd t/as the Esplanade Hotel (2007) 87 WAIG 509 and Wood C in Phillips v TR7 Pty Ltd (2006) 86 WAIG 2646. As it turned out however neither counsel submitted that the Full Bench ought to follow Albany Esplanade. This is reflected in the answers sought to question 2.
11 Instead, counsel for the applicant provided a careful and detailed submission which, if accepted by the Full Bench would require the questions to be answered in a way as to allow the applicant to proceed with her claim at first instance.
12 In Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598 the Full Bench said:
“91 There is no doubt now that if a corporation is a ‘constitutional corporation’, including a ‘trading corporation’, then by virtue of sections 4, 5, 6 and 16 of the WRA and s109 of the Constitution, the Act will be excluded from operation where s16(1) of the WRA applies.
92 This conclusion is arrived at in the following way. Section 16(1) of the WRA states that it ‘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 …’. There is then listed 5 such laws. The first is ‘a State or Territory industrial law’. This expression is defined in s4 of the WRA to mean, amongst other laws, the Act. (See (a)(iii) of the definition of the expression).
93 The s16 exclusion is limited in its application to ‘an employee or employer’. So far as is presently relevant an ‘employer’ is defined in s6(1)(a) to mean a ‘constitutional corporation’, and an ‘employee’ under s5 relevantly means ‘an individual … employed … by an employer’. A ‘constitutional corporation’ in turn is defined in s4 of the WRA to mean ‘a corporation to which paragraph 51(xx) of the Constitution applies’. This paragraph of the Constitution lists: ‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.

…

117 Although, Commissioner Wood in Phillips v TR7 Pty Ltd (2006) 86 WAIG 2646 held that reg 1.2 [sic – 2.1.2] does not apply to preserve the jurisdiction of the Commission to hear and determine a claim made under s 29(1)(b)(ii) of the Act where the employer is a ‘constitutional corporation’, we note that this issue is not without controversy. Senior Commissioner Smith recently observed by way of obiter in Gwenda May Smith v Albany Esplanade Pty Ltd t/as the Esplanade Hotel (2007) 87 WAIG 508 [sic – 509] that reg 1.2 [sic – 2.1.2] does apply to save the jurisdiction of the Commission to hear and determine a contractual benefits claim where an act or omission relied upon to found the claim occurred prior to 27 March 2006.”

13 In the present proceeding, unlike in Crown Scientific where there was limited assistance from counsel, the Full Bench is required to further consider these points.

The Statutory Framework
14 It is necessary to set out the statutory framework to understand the submissions of counsel and to resolve the questions.

(a) The Constitution
15 Section 109, s51(xx), s77 and s106 of the Constitution are relevant to the arguments of the parties. They are as follows:
“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.

51. Legislative Powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -
…
(xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

77 Power to define jurisdiction

With respect to any of the matters mentioned in the last two sections the Parliament may make laws -

(i) Defining the jurisdiction of any federal court other than the High Court:

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States:

(iii) Investing any court of a State with federal jurisdiction.

106 Saving of Constitutions

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.”

(b) The Workplace Relations Act
16 Section 3 of the WRA sets out its “principal object”. The following is relevant to the present proceeding:
“3 Principal object

The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

…

(b) establishing and maintaining a simplified national system of workplace relations; and

…

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

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

17 Section 4(1) of the WRA sets out definitions of words and expressions “unless the contrary intention appears”. A “constitutional corporation” is defined in s4(1) of the WRA to mean a “corporation to which paragraph 51(xx) of the Constitution applies”. Section 4(1) of the WRA also provides that “‘employee’ has a meaning affected by section 5” and “‘employer’ has a meaning affected by section 6” (emphasis in original).
18 Section 4(1) of the WRA also provides a definition of “State industrial authority” as follows:
“State industrial authority means:
(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; or
(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.”

19 There is also in s4(1) of the WRA a definition of “State or Territory industrial law” which relevantly includes:
“(a) any of the following State Acts:
(i) the Industrial Relations Act 1996 of New South Wales;
(ii) the Industrial Relations Act 1999 of Queensland;
(iii) the Industrial Relations Act 1979 of Western Australia;
(iv) the Fair Work Act 1994 of South Australia;
(v) the Industrial Relations Act 1984 of Tasmania
…”

20 Section 5 of the WRA is as follows:
“5 Employee
Basic definition
(1) In this Act, unless the contrary intention appears:
employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6(1), by an employer, except on a vocational placement.
…
References to employee with ordinary meaning
(2) However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
…
(3) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning.
(4) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement.”

21 Section 6 of the WRA is relevantly as follows:
“6 Employer
Basic definition
(1) In this Act, unless the contrary intention appears:
employer means:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual
…
References to employer with ordinary meaning
(2) However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
(3) In this Act, unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.”

22 Section 7 of the WRA defines “employment” in the following way:
“7 Employment
(1) In this Act, unless the contrary intention appears:
employment means the employment of an employee by an employer.
…
References to employment with ordinary meaning
(2) However, a reference to employment has its ordinary meaning if the reference is listed in clause 4 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
…”

23 Section 16 of the WRA, which is fundamental to the determination of the questions, is as follows:
“16 Act excludes some State and Territory laws
(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;
(b) a law that applies to employment generally and deals with leave other than long service leave;
(c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 623);
(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;
(e) a law that entitles a representative of a trade union to enter premises.
…
State and Territory laws that are not excluded
(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 nonexcluded matters) described in subsection (3).
(3) The nonexcluded matters are as follows:
(a) superannuation;
(b) workers compensation;
(c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety);
(d) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers);
(e) child labour;
(f) long service leave;
(g) the observance of a public holiday, except the rate of payment of an employee for the public holiday;
(h) the method of payment of wages or salaries;
(i) the frequency of payment of wages or salaries;
(j) deductions from wages or salaries;
(k) industrial action (within the ordinary meaning of the expression) affecting essential services;
(l) attendance for service on a jury;
(m) regulation of any of the following:
(i) associations of employees;
(ii) associations of employers;
(iii) members of associations of employees or of associations of employers.
…
This Act excludes prescribed State and Territory laws
(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).
Definition
(6) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.”

24 Section 117 of the WRA is relevant to understanding one aspect of the respondent’s reply to a submission of the applicant. It provides:
“117 State authorities may be restrained from dealing with matter that is before the Commission

(1) If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with a matter that is the subject of a proceeding before the Commission under this Act or the Registration and Accountability of Organisations Schedule, the Full Bench may make an order restraining the State industrial authority from dealing with the matter.
(2) The State industrial authority must, in accordance with the order, cease dealing or not deal, as the case may be, with the matter.
(3) An order, award, decision or determination of a State industrial authority made in contravention of the order of a Full Bench under this section is, to the extent of the contravention, void.”

25 Section 4(1) of the WRA defines “Full Bench” to mean a “Full Bench of the Commission” which is in turn defined as the “Australian Industrial Relations Commission”.

(c) The Workplace Relations Regulations
26 2.1.2 of the WRR relevantly provides:
“State and Territory laws that are not excluded by the Act — general
(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.
Note   Under subsection 16 (1) of the Act, the Act is intended to apply to the exclusion of specified laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer. The subsection lists the kinds of laws that are excluded.
However, subsection 16 (1) does not apply to a law of a State or Territory so far as the law is prescribed by the regulations as a law to which the subsection does not apply.
Rights and obligations — general
(2) 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 relates to compliance with an obligation:
(a) under:
(i) that law; or
(ii) another law of a State or Territory;
which would otherwise be excluded by subsection 16 (1) of the Act; and
(b) in respect of an act or omission which occurred prior to the reform commencement.
Rights and obligations — injunctions
(3) However, subregulation (2) does not apply to the extent to which that law of a State or Territory, or another law, provides for the granting of an injunction in relation to conduct that has not yet occurred.
Note   The effect of subregulation (3) is that subsection 16 (1) of the Act will apply to a law of a State or Territory to the extent to which it deals with injunctions about rights or obligations in relation to future conduct, and the Act will apply to the exclusion of that law of the State or Territory.
Termination of employment
(4) 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 relates to a termination of employment that occurred before the reform commencement ...”

(d) The Act
27 Section 23(1) of the Act provides that the “Commission has cognizance of and authority to enquire into and deal with any industrial matter”.
28 The expression “industrial matter” is defined in s7(1) of the Act in broad terms to include relevantly any matter relating to the remuneration of employees and any “matter … pertaining to the work … of … employees in any industry”. “Industry” is widely defined in s7(1) to relevantly include, “any service, employment or occupation of employees”. Section 7(1a) relevantly provides that:
“A matter relating to … the refusal or failure of an employer to allow an employee a benefit under his contract of service, is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended.”

29 Section 29 of the Act sets out by whom matters may be referred by the Commission. It relevantly provides:
“29. By whom matters may be referred
(1) An industrial matter may be referred to the Commission —
… 
(b) in the case of a claim by an employee — 
(i) that he has been harshly, oppressively or unfairly dismissed from his employment; or
(ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,
by the employee.”

New South Wales v The Commonwealth (2006) 229 CLR 1
30 In New South Wales v The Commonwealth (the Work Choices Case) the High Court considered the constitutionality of the WRA after the amendments made by the Work Choices Act.
31 The High Court by a 5-2 majority rejected in their entirety the constitutional objections to the amended WRA. The majority was comprised by Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ, who wrote joint reasons for decision. In the present proceeding both counsel rely upon aspects of what was decided in the Work Choices Case. Accordingly it is necessary to discuss what was relevantly decided.
32 The majority at [8] of their reasons said that the definitions of “employee” and “employer” in s5 and s6 were “central to the operation of much of” the amended WRA. Their Honours said they revealed the “constitutional basis upon which the ‘framework for cooperative workplace relations’ is constructed …” ([8]). The reference to “the framework” was taken from the first paragraph in s3 of the WRA, quoted above. At [11] the majority said:
“[11] The system introduced by the [Work Choices Act] is intended to cover all employers and employees as defined in ss 6(1) and 5(1), including those formerly bound by State based industrial instruments. It includes transitional provisions designed to cover certain employers and employees bound by federal awards who are not within the ss 6 and 5 definitions. It also contains provisions which preserve for a time the terms and conditions of employment of employees within the s 5(1) definition who would have been bound by, or whose employment would have been subject to, a State industrial instrument.”

33 The majority decided the corporations power in s51(xx) of the Constitution supported amendments made to the WRA by the Work Choices Act. In doing so their Honours reviewed the previous decisions of the High Court dealing with the power. Relevant to what is later described, these included Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169. There, s45D of the Trade Practices Act 1979 (Cth) about secondary boycotts was held to be constitutional (see the Work Choices Case at [157]-[165] and [292]). As explained by the majority at [162], the section was valid as it was “designed to protect a corporation from conduct which was intended and likely to cause substantial loss or damage to its business”.
34 At [178] the majority said that the explanation of the extent of the corporations power by Gaudron J in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at [83], as follows, should be adopted:
“… the power conferred by s 51(xx) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub-section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.”

35 Their Honours went on to say in the Work Choices Case at [178]:
“This understanding of the power should be adopted. It follows, as Gaudron J said [in Pacific Coal at [83]], that the legislative power conferred by s 51(xx) ‘extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations’.”

36 Later in a section of their reasons headed “General Conclusions” the majority at [198] said: “A law which prescribes norms regulating the relationship between constitutional corporations and their employees, or affecting constitutional corporations in the manner considered and upheld in Fontana Films or, as Gaudron J said in Re Pacific Coal, ‘laws prescribing the industrial rights and obligations of [constitutional] corporations and their employees and the means by which they are to conduct their industrial relations’ are laws with respect to constitutional corporations”.
37 In considering the constitutionality of particular sections of the WRA, the majority at [239] commenced by saying that much of the amended WRA turned on the definition of “employer” in s6. In a number of instances, the majority said that sections of the WRA were supported by the corporations power because they singled out constitutional corporations as the object of a statutory command and in that sense had a discriminatory operation upon them. (See for example at [246] about Part 7 of the WRA - “The Australian Fair Pay and Conditions Standard”). In other instances sections were said to be constitutional because they prescribed norms governing the conduct of constitutional corporation employers and their employees. (See for example [249] about Part 8 of the WRA - “Workplace agreements” and [258] about Part 9 - “Industrial action”).
38 At [288]-[294] the majority considered the challenge to Part 16 of the WRA, s778-s813 dealing with “Freedom of association”. Section 785 sets out conduct to which the part applied. As noted by the majority at [291] the focus in s785(1) is upon conduct by, against, that does or is intended to adversely affect a constitutional corporation ; or does or is intended to directly affect a present or prospective employee or contractor of a constitutional corporation; and conduct that consists of advising, encouraging or inciting a constitutional corporation to do or not to do certain things. With respect to s785(1)(e) and (f) about conduct directing affecting present or prospective employees or contractors of constitutional corporations, their Honours at [293] noted the relevant conduct was conduct affecting a person “in the capacity of” an employee or contractor. Their Honours then said that the “reference to capacity reveals that the conduct proscribed is conduct which affects the present or prospective relationship between an employee or contractor and a constitutional corporation”. Their Honours then said that, that being so, these paragraphs were supported, as were other paragraphs of s785 by the same reasoning as in Fontana Films.
39 In Part VI(1) of their reasons, the majority considered the challenges made to the constitutionality of s16 of the WRA. (See [346]-[377]). Their Honours concluded that all challenges failed. The respondent placed heavy reliance upon this part of the reasons of the majority.
40 At [350] the majority set out the challenges, lead by Western Australia, to the validity of s16 of the WRA. They relevantly included that s16 constituted “a bare attempt to limit or exclude State legislative power … rather than to comprehensively regulate a particular field of activity to the exclusion of any State law which also regulates that field of activity”.
41 At [353] and following their Honours dealt with a question of construction about s16(1). This was that s16(1) excluded any State or Territory law which it applied to in its entirety, irrespective of whether the law applied to persons other than employers and employees as defined. Their Honours dismissed this construction (see [354]). In doing so their Honours said that “employees” and “employers” in s16(1) had the meanings contained in s5(1) and s6(1) of the WRA. Their Honours also said that if there were different constructions of s16 available, one was to be selected which so far as the language of the section would permit, would avoid rather than result in a conclusion that the section was beyond Commonwealth legislative power (see [355]).
42 At [359] their Honours decided:
“[359] Hence s 16(1) on its true construction is limited to the exclusion of State and Territory laws so far as they would otherwise apply to an employee or employer, defined by reference to the heads of constitutional power referred to in paras (a)-(f) of the definition of employer in s 6(1).”

43 Part of the “bare exclusion” argument was the contention that in a number of respects s16 attempted to invalidate State laws despite having failed to enact any corresponding federal law. Their Honours referred to a number of examples about which argument had been made, including “redundancy provisions, and the enforcement of contractual entitlements” ([367]).
44 At [369] their Honours summarised the Commonwealth’s arguments and at [370] said they were to be accepted. Paragraph [369] of the reasons was as follows:
“[369] The Commonwealth's arguments. The Commonwealth specifically declined to contend that if a Commonwealth law simply sought to exclude State law in a field and made no provision whatever on the same subject matter it was within power. The Commonwealth contended rather that it was open to the Commonwealth Parliament to indicate the relevant field it intended to cover to the exclusion of State law, that s 109 would then operate even though the Commonwealth had not made its own detailed provisions about every matter within that field which State law dealt with, and that it sufficed for the Commonwealth to have some provisions dealing with aspects of the field, leaving others unregulated. The Commonwealth submitted that the relevant field was to be identified, not by reference to the areas regulated by State law, but by reference to the terms of the Commonwealth law. It was concluded above that the Commonwealth has power to regulate the relationships between employees and employers as defined in ss 5(1) and 6(1) by reliance on the heads of power referred to in paras (a), (e) and (f) of the definition of employer in s 6(1). The Commonwealth submitted that it was open to the Parliament to identify the rights and obligations arising out of those relationships of employees and employers as a field, and to indicate an intention to cover that field (or, as here, part of it, because of the limitations to s 16(1) and the operation of s 16(2) and (3)). On the construction of s 16(1) accepted above, the Commonwealth chose to exclude State law only in respect of the relations of employees and employers as defined in ss 5(1) and 6(1).”

45 At [370] their Honours said that s109 of the Constitution may operate where, as in the WRA, the legislation provides a more detailed scheme than State law in some respects and a less detailed scheme in other respects. Their Honours said by way of example:
“… The Commonwealth has legislated to provide a detailed set of rules for particular agreements; it has not dealt, for example, with unfair contracts except in relation to independent contractors, but that does not preclude it from defining a field of relationships between s5(1) employees and s6(1) employers, and occupying parts of that field, like unfair contracts, to the exclusion of State law.”

46 Their Honours supported their conclusion by the decision in Wenn v Attorney-General (Vic) (1948) 77 CLR 84 (see [371]-[372]).
47 At [373] their Honours referred to the Commonwealth’s “detailed refutation of some of the contentions advanced by Western Australia in relation to areas allegedly dealt with by State law but not by the new Act”. Their Honours said it was unnecessary to decide on the merits of the competing submissions since “the controversies are irrelevant to validity”, and it was “undesirable to do so in the absence of factual circumstances raising a concrete dispute about them”.
48 The court then considered a challenge lead by South Australia against s117 of the WRA. One of its contentions relied upon s106 of the Constitution.
49 At [384] the majority said:
“[384] The first way in which s 117 was said to contravene s 106 was that an order of the Full Bench restraining a State industrial authority from proceeding was a command to the authority not to apply, enforce and uphold valid and operational State laws applicable to an industrial dispute. South Australia relied on the statement of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan [(1989) 166 CLR 518 at 574-575] that provisions purporting to prohibit the exercise of the ordinary criminal jurisdiction vested in State courts by State law were invalid by reason of s 106.”

50 Their Honours rejected the argument. In doing so it noted that no “court” had been prescribed by any regulation to constitute a “State industrial authority” as contemplated in paragraph (c) of the definition in s4(1) of the WRA. At [389] their Honours said:
“… It is true that para (c) of the definition of State industrial authority gives power to prescribe a ‘court’ for the purposes of that definition, but no prescription has been made, and the question whether s 117 is valid in its grant of power to make orders against a State Supreme Court if a State Supreme Court were ever prescribed can be left to the day when it is. Hence, s 117 at present gives no power to make orders directed at the core of State judicial systems. It follows that the reasoning of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan is not applicable to the present case, and that there is no occasion to consider the correctness of the Commonwealth’s challenge to the decision.” (Footnote omitted).

51 At [390] their Honours noted that the content of the word “Constitution” of the State within s106 was not settled, citing McGinty v Western Australia (1996) 186 CLR 140 at 259 per Gummow J. It was then said that the “determination of the answer to that question would call for a close examination of the laws of that State, with a view to deciding which are and which are not, parts of its Constitution”. Their Honours said there were no submissions provided on the issue. The majority concluded on the issue at [390]:
“ … It may be said, however, that normally the bodies dealing with industrial disputes or factories are specialist entities established for specific purposes and liable to change from time to time as the legislature sees fit. Even if it were to be accepted that the laws regulating State bodies of this kind may be part of the Constitution of the relevant State, it has not been demonstrated in these proceedings that that is the case in any State.”

Summary of Arguments
52 I will now summarise in point form the arguments of the parties. As the jurisdictional challenge was made by the respondent it is generally convenient to deal with its arguments and submissions first.

The Respondent’s Arguments
53 The respondent argued:
(a) Section 16(1) of the WRA excluded the application of the Act, including s29(1)(b)(ii), with respect to constitutional corporations.
(b) 2.1.2 of the WRR did not preserve the jurisdiction of the Commission to hear and determine the applicant’s claim because it did not relate to “compliance with an obligation” under a “law of a State”.
(c) This was because the claim was based on the common law of contract.

The Applicant’s Arguments
54 The applicant argued:
(a) The s29(1)(b)(ii) application was to “enforce” a common law contractual right.
(b) The common law was not a “law of a State” for the purposes of s16(1) of the WRA.
(c) Section 16(1) of the WRA did not purport to exclude the enforcement under state law of a common law entitlement. No purpose of the amended WRA would be served by this.
(d) Further or alternatively, s16(1) of the WRA in relying on the definitions in s5 of the WRA, only applied to extant and not former employment relationships.
(e) 2.1.2 of the WRR does not apply to the applicant’s claim for the same reason as argued by the respondent.
(f) It did not need to do so because properly construed the WRA did not have an impact upon the applicant’s entitlement to have her claim heard and determined by the Commission.
(g) Alternatively if the applicant’s primary argument about lack of coverage of s16 of the WRA was not accepted, 2.1.2 of the WRR could apply as:
(i) The claim was preserved to the extent that relevant acts or omissions occurred before 27 March 2006.
(ii) 2.1.2 of the WRR did not require the entire cause of action to be completed by that date.
(iii) The origin of the applicant’s claim occurred in 1999 because of a direction given by the respondent.
(h) If the proper construction of s16(1) of the WRA was that it purported to in effect say “that the law is unaffected, but a State court cannot hear and determine that law” it was unconstitutional.
(i) This is because, although the Commonwealth could invest State courts with jurisdiction under s77 of the Constitution, it could not do what was here contemplated. This is because s106 of the Constitution preserved the constitutions of the States, including their courts.
55 The respondent replied that:
(a) The decision in the Work Choices Case precluded the acceptance of the applicant’s argument about the coverage of s16 of the WRA.
(b) The exclusion of the s29(1)(b)(ii) jurisdiction was consistent with the object of the WRA to create a national industrial relations system (T44).
(c) The WRA was not only intended to apply to an extant employment relationship; some sections clearly applied to former employees.
(d) The majority in the Work Choices Case had been aware of the issue about s106 of the Constitution and nevertheless decided s16 and also s117 of the WRA were valid.

The Issues Requiring Determination
56 The arguments of the parties mean these issues need to be determined in order to decide the referred questions of law.
(1) The nature of the jurisdiction under s29(1)(b)(ii) of the Act.
(2) Does the decision in the Work Choices Case preclude acceptance of the applicant’s argument about the coverage of s16(1) of the WRA?
(3) Does s16(1) of the WRA only apply to an existing employment relationship?
(4) Assuming the answer to (2) is no, does the coverage of s16(1) of the WRA include the jurisdiction of the Commission under s29(1)(b)(ii) of the Act, for constitutional corporations?
(5) What is the proper construction of 2.1.2 of the WRR?
(6) If the answer to issue (4) is yes, is this coverage contrary to s106 of the Constitution?
(7) If the answer to (6) is yes, can s16(1) of the WRA be construed in such a way so as to avoid this problem?
57 I think these issues are best dealt with in turn, by setting out the parties’ submissions, followed by my analysis and opinion. At this stage it is convenient to mention however that both counsel submitted the now lapsed Contractual Benefits Bill 2007 (WA) has no bearing on the answers to the referred questions. I agree. That bill was premised upon the previous State Government’s view that the WRA did exclude, for constitutional corporations, the s29(1)(b)(ii) jurisdiction of the Commission. That was however and with respect only the previous state government’s non-binding view.

(1) The First Issue – The Nature of the Section 29(1)(b)(ii) Jurisdiction
(a) The Respondent’s Submissions about the First Issue
58 In the context of question 2, the respondent submitted the claim under s29(1)(b)(ii) was “one which arises at common law pursuant to the law of contract”. It was submitted the claim exists independently of the Act, relying upon Matthews v Cool Or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 56; (2004) 84 WAIG 2152 (T3). That is, remedy is available “unless the employee can establish a breach of contract at common law”.

(b) The Applicant’s Submissions about the First Issue
59 The applicant acknowledged that s29(1)(b)(ii) of the Act was not of itself a source of jurisdiction; it was the industrial matter constituted by the referral which was. The matter was to be determined under s23(1) of the Act. It was submitted the Act did not impose any duty upon an employer to pay contractual benefits. Like the respondent, the applicant submitted, relying upon Phillips, that the application was to “enforce” the common law. It was not to “enforce” any provision of the Act. The common law was the common law of Australia, there being no distinct common law of Western Australia; citing Lipohar v The Queen (1999) 200 CLR 485 at [24], [42], [43] and [48].
60 In his written submissions counsel said the determination of a s29(1)(b)(ii) claim, under s23 of the Act, provided an entitlement that allowed the Commission to determine the case on “more flexible grounds than under the common law” ([8]). At the hearing, when asked for an example counsel referred to the lack of application of the rules of evidence in the Commission. (Section 26(1)(b) of the Act). Counsel backed away from the breadth of the written submission however when it was pointed out that if the power of the Commission was to do other than decide common law entitlements, this undermined his submissions on what I have called the fourth issue (T26ff).

(c) Analysis of and Opinion about the First Issue
61 Both parties agreed that in determining a claim referred under s29(1)(b)(ii) of the Act, the Commission was required to determine the claim as under the common law. This agreement does not of course bind the Full Bench on this legal point. In fairness however neither counsel submitted it did.
62 Section 29 of the Act is about who may refer matters to the Commission. The entitlement of an employee to do so is restricted. Broadly, s29(1)(b) restricts an employee to referring claims that he or she has been unfairly dismissed from employment or not allowed a benefit to which he or she is entitled under the contract of employment. Once there has been a referral of a matter by an employee under s29(1)(b), the jurisdiction of the Commission to deal with the claim is provided in s23(1) of the Act. (See for example Pullin J in Cool or Cosy at [43]).
63 The most recent consideration of the nature and extent of the Commission’s jurisdiction in dealing with a s29(1)(b)(ii) claim, by the Industrial Appeal Court, is in Cool or Cosy. There, the Court confirmed that the right to reasonable notice was a contractual benefit which may be referred to the Commission by an employee. The Court also held the Commission, in dealing with such a claim, may award compensation in the nature of damages for the failure to provide the contractual benefit.
64 As Pullin J observed at [43], in the case of a claim under s29(1)(b)(ii), there was nothing in the Act other than s23(1) “which says what the Commission may do. The only direction given to the Commission is to ‘deal with’ such claim”. His Honour said of s23(1) at [49]: “The section is extraordinary in its brevity”.
65 Of present relevance, Steytler J reviewed a number of cases and then said:
“24 In my respectful opinion, the better analysis in each of those cases should have been that the contractual benefit which was denied by the employer was that which was provided for by the contract of employment itself (respectively the full term of employment provided for by the contract, the right to a defined period of notice and the right to reasonable notice) and that the award of compensation was the means by which the Commission dealt with the industrial matter referred to it under s 29(1)(b)(ii), utilising the broad power given it under s 23(1) of the Act read, if necessary, with s 26(2) thereof.”

66 The analysis of Steytler J at [24] describes a process of decision making consistent with the ascertainment of common law contractual entitlements and remedies. In my opinion the reference to s26(2) of the Act does not change this. Section 26(2) of the Act provides the Commission, in granting relief or redress is not restricted to the specific claim made or the subject matter of the claim.
67 At [27] Steytler J said the view he expressed had been favoured by Anderson J in Hotcopper Australia Ltd v Saab (2002) 82 WAIG 2020 at [24]. As Steytler J explained, his Honour at that paragraph said he was inclined to think the Commission was empowered to make a monetary order for compensation, that is a damages award, in an appropriate case as long as its purpose was “to do no more than is necessary to ‘redress the matter by resolving the conflict in relation to the industrial matter’ - Welsh v Hills (1982) 62 WAIG 2708 at 2709 - and as long as its effect is so limited”.
68 With respect, it is not entirely clear to me whether this refers to the determination of the matter in accordance with the common law or something else and if so what that might be. I will refer to that point again later.
69 Pullin J at [52] referred to the position where an employee had not been given reasonable notice and the employment had been terminated. His Honour then said:
“In those circumstances, the only way that the Commission could deal with a claim of this nature, and to thereby settle the industrial dispute, would be to order damages in lieu of notice.”

70 Pullin J at [54] again said that an employee may refer a claim to the Commission that he or she was denied a contractual benefit and the Commission may deal with the claim by awarding damages. The process his Honour described is consistent with the Commission dealing with a case of breach of contract at common law and providing the remedy of damages.
71 Heenan J referred more explicitly to the common law nature of the claim. At [59] his Honour referred to the distinction, within the unfair dismissal jurisdiction of the Commission, between ordering the payment of remuneration lost because of the unfair dismissal and ordering an employer to pay an amount of compensation for loss or injury caused by the dismissal. His Honour then said at [60]:
“60 The significance of this distinction, to my mind, is explained by the fact that ‘any amount to which the claimant is entitled’ or payment of ‘a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment’ (s 29(1)(b)(ii)) are each entitlements which the employee has arising out of his contract of employment with the employer. They are contractual and, therefore, common law claims which exist independently of the provisions of the Act and which could, if necessary, be pursued in any court of appropriate general civil jurisdiction. By contrast, the remedies available for a proved case of harsh, oppressive or unfair dismissal, as set out in s 23A of the Act, include the special statutory remedies which the Act provides for the Commission alone to grant, including orders for re-instatement, re-employment in another position or the payment of compensation for loss or injury caused by the dismissal which do not exist under the contract of employment or, otherwise, under the general law.”

72 This in my opinion very clearly endorses the position of the applicant and the respondent in the present proceeding. Additionally at [69] Heenan J refers to the common law concepts relevant to the ascertainment of damages including mitigation of loss. At [73] his Honour confirmed the Commission was empowered to make a monetary order in the nature of damages to deal with the industrial matter before it under s23(1) of the Act. His Honour said however that: “I do not wish to be understood as suggesting that this is a special exception or qualification upon limits of the Commission, otherwise, to give effect to common law entitlements on an application by an employee under s29(1)(b)(ii)”. (See also [63] and [75]).
73 Neither Pullin nor Heenan JJ said anything to indicate other than that a claim referred under s29(1)(b)(ii) of the Act would be determined upon the principles of the common law. The reasons of Steytler J were, with respect, in my opinion, a little less clear as his Honour referred to the reasons of Anderson J in Hotcopper who in turn cited Welsh. This is because in Welsh, O’Dea P (with whom Collier C agreed) at 2709 referred to the Commission being empowered in a denial of contractual benefits claim, to “enquire into and make an order relating to such matter, in the exercise of its discretionary judgment, in accordance with the provisions of s26 …”. O’Dea P said because the matter was an industrial matter, “the Commission is empowered to act so as to resolve conflict in respect of the matter referred”. O’Dea P said this could include an order for compensation. His Honour then said:
“The order could be in such terms as the Commission considered just and equitable. Were that done its purpose and its limitation would be to redress the matter by resolving the conflict in relation to the industrial matter.” (2709).

74 There is a suggestion in these reasons that a “discretionary” determination of what is “just and equitable” may be something different from ascertaining and enforcing the employment contract. If this is so then with respect in my opinion it is contrary to the reasons of at least Pullin and Heenan JJ in Cool or Cosy and ought not to be followed. It is also relevant that Welsh was decided at a time when it was unclear whether the Commission had jurisdiction to order damages for a failure to comply with contractual benefits. Indeed that was the point of the appeal before the Full Bench. (See the reasons for decision of the Commission at first instance quoted at 2708-2709 of Welsh).
75 As set out earlier the applicant’s counsel initially submitted, but later backed away from, the notion that s26(1) of the Act might allow the Commission to determine a claim under s29(1)(b)(ii) of the Act more flexibly than under the common law. In my opinion the initial submission is contrary to at least the majority in Cool or Cosy and cannot be accepted.
76 The nature and content of the direction to the Commission under s26(1) of the Act has been considered fairly recently, in The Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 1199 (LHMU) and Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service (2008) 88 WAIG 543 (HSU). In LHMU my reasons were agreed with by Scott C and accordingly formed the opinion of the Full Bench.
77 In [40] of LHMU, I emphasised that despite s26(1)(a) of the Act, the Commission is not, to put it colloquially, authorised to act in the way in which it thinks best on the basis of some sort of “pub rules”. In [42]-[48] I explained what I meant, including that the “subsection does not provide license for a Commissioner or the Full Bench to ignore limits upon the exercise of the powers or jurisdiction of the Commission; or to avoid or mould legal principles to a conclusion thought desirable about the Commission’s jurisdiction.”
78 I reiterated this point after discussing, Professor N Rees, ‘Procedure and Evidence in Court Substitute Tribunals’, (2006) 28(1), Australian Bar Review, 41, and Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29. I also said in HSU at [168]:
“168 The point is neatly illustrated in The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) (2004) 85 WAIG 629. In that case, a Mr Dinnie had been overpaid 22.1 days of sick leave more than his entitlement. His employer required him to reimburse the amount of the overpayment. Mr Dinnie objected to doing so. An application was made to the Arbitrator to deal with this industrial dispute. The Arbitrator made an order that Mr Dinnie be ‘deemed to have been on paid sick leave for the 22.1 days prior to his return to work’. The Full Bench allowed an appeal against the Arbitrator’s decision. Relevantly and with respect succinctly put by Kenner C at [68]:
‘The fact of the matter was in this case, that it was not in dispute that Mr Dinnie had been paid funds out of consolidated revenue to which he had no entitlement. That being the case, irrespective of the quantum of the sum of monies involved, the State has a right, and arguably a duty, to seek to recover those monies overpaid …In my opinion, to the extent that the learned Arbitrator did not apply this general principle and sought to apply s 26 of the Act, having regard to the circumstances of Mr Dinnie, then this was in error. Whilst s 26(1)(a) of the Act requires an Arbitrator and the Commission to deal with a matter in accordance with equity, good conscience and the substantial merits of the case, this does not permit an Arbitrator or the Commission to depart from the duty to apply the general law …’.”

79 As referred to in LHMU by reference to Gubbins, the impact of the equity and substantial merits direction varies in accordance with the particular function, jurisdiction or power being undertaken or exercised by the Commission. In HSU at [172], without intending to be exhaustive, I summarised nine different functions of the Commission. I then gave the example that when the Commission is conducting conciliation conferences, the presiding Commissioner would be expected to use his/her experience, understanding of the law and industrial fairness, conciliation and mediation skills to try and assist the parties to reach an agreed resolution of the dispute.
80 I then said at [173]:
“On the contrary if the Commission is arbitrating a claim referred by an employee under s29(1)(b)(ii) of the Act which asserts they have not been given a contractual entitlement, the Commission must decide what the terms of the contract were and whether or not they have been complied with by the employer. The Commission does not have licence to add to or subtract from the terms of the contract or the facts and order, for example, that a benefit be given to an employee because they think it would be equitable or fair. The terms of the contract cannot be disregarded as ‘technicalities or legal forms’ or for any other reason supposedly supported by s26(1)(a) of the Act.”

81 From this paragraph I would change the word “arbitrating” to “deciding”. This is because the use of the word could be misunderstood as meaning the Commission is engaging in a discretionary arbitral exercise rather than deciding if there has been a denial of a contractual benefit at common law. This is, as described in more detail below, a judicial function.
82 In my opinion these observations accord with the approach of at least a majority of the judges in Cool or Cosy. It follows that the applicant’s submission, agreed with by the respondent, that she is simply seeking access to the Commission to enforce under the common law an alleged breach of a former contract of employment, should be accepted.

(d) Dispelling the Hotcopper Myth
(i) The Hotcopper Point
83 Kenner C, relying on Hotcopper, says at [312] and [319] of his reasons that:
“[312] In my view there can be no question that a claim by an employee (or former employee by reason of s 7(1a) of the Act) is an industrial matter as defined, so long as the matter has the requisite ‘industrial character’…
[319] … it is not every contractual claim that will fall within the Commission’s contractual benefits jurisdiction. Such claims, to be ‘industrial matters’ for the purposes of s 7 of the Act, must have the requisite ‘industrial character’ …”

84 The effect of this reasoning is that a claim by an employee that he has not been allowed a benefit to which he is entitled under his contract of employment is not sufficient for the matter to be characterised as an “industrial matter” and therefore within the jurisdiction of the Commission. There is an additional criteria that the claim must be of an “industrial character”. I accept, as I will elaborate upon below, that this is a correct analysis of what Anderson J said in Hotcopper. In my opinion however, what his Honour said was not supported by any of the judges in the subsequent Industrial Appeal Court decision of Cool or Cosy. Indeed, in my respectful opinion their Honours’ analysis of the jurisdiction is contrary to the reasons of Anderson J in Hotcopper. Accordingly, although none of the judges expressly said they disagreed with Hotcopper on this point, it is sufficiently clear to me that they did so. The result is that I think Hotcopper has at least been implicitly overruled on this point.
85 Also, I am of the opinion that what Anderson J said was, with respect, not a correct construction of the Act and is not supported by sound reasoning.
86 I will elaborate on my reasons for this.

(ii) Refinement of the Issue
87 The issue is whether Hotcopper has been overruled by Cool or Cosy or should be followed in deciding that in a denial of contractual benefits claim the Commission only has jurisdiction if it decides the claim has an “industrial character” and because of that, is an “industrial matter”. In other words is a finding that the claim has an “industrial character” an additional or superadded requirement which is necessary for the Commission to have jurisdiction? Put slightly differently again, if a claim fits within the description in s29(1)(b)(ii) of the Act, is this of itself insufficient for it to be an “industrial matter” and therefore able to be dealt with by the Commission?

(iii) The Terms of the Act
88 The drafting of s29(1)(b)(ii) is not elegant. Omitting irrelevant words however, for present purposes, it says that an industrial matter may be referred to the Commission in the case of a claim by an employee, that he has not been allowed by his employer a benefit to which he is entitled under his contract of employment. In my opinion this implicitly recognises that the claim of a denied contractual benefit is an “industrial matter”. The section does not say that such a claim may be referred if it is an industrial matter or moreover if it has an industrial character.
89 This construction of the relevant sentence in s29 is entirely consistent with the definitions of “industrial matter” in s7(1) and s7(1a) of the Act, which I referred to earlier. Of particular importance for present purposes is that s7(1a) says very clearly and simply: “A matter relating to … the refusal or failure of an employer to allow an employee a benefit under his contract of service is and remains an industrial matter …”.

(iv) Cool or Cosy
90 These points were recognised by Steytler J in Cool or Cosy. Observations by his Honour and the other judges in that case demonstrate that they did not accept the superadded requirement of the Court in Hotcopper.
91 Steytler J said at [13]-[14]:
“[13] A matter relating to the dismissal of an employee by an employer, or the refusal or failure of an employer to allow an employee a benefit under his contract of service, is an industrial matter. So much is apparent from the terms of s 29(1)(b) of the Act, relied upon by the applicant in bringing his application before the Commission …
[14] While that section is not itself a source of jurisdiction, and merely confers standing to an employee to refer to the Commission an industrial matter of the kind referred to … it plainly evinces a legislative intention that claims of the kind referred to are to be taken to be included within the notion of an ‘industrial matter’ for the purposes of the Act.”

92 To quote again for emphasis, the most presently pertinent thing that his Honour there said was: “…the refusal or failure of an employer to allow an employee a benefit under his contract of service, is an industrial matter”. Directly after that his Honour quoted s7(1a) of the Act.
93 Pullin J at [43] said:
“In the case of an industrial matter consisting of a claim under s 29(1)(b), the Commission may, by reason of s 23(1), ‘enquire into and deal with’ those matters.”

94 After referring to the meaning of “matter” in “industrial matter”, Pullin J said at [47] of the matter then before the court:
“The controversies were, first, that he had been unfairly dismissed (which claim was dealt with under express provisions applying to unfair dismissal) and, secondly, that he was not allowed by his employer, a benefit to which he was entitled under his contract of service.”

95 His Honour, tellingly, did not say that one of the controversies to determine was whether the claimed denial of a contractual benefit under the contract of employment was of an “industrial character”.
96 At [52] his Honour said:
“Parliament has conferred jurisdiction on the Commission to deal with a claim for denied contractual benefits …”

97 His Honour then went on to refer to s7(1a) of the Act and decided the Commission had jurisdiction to award damages for breach of a contractual entitlement to provide notice. (See also the remainder of [52] and [54] of his Honour’s reasons).
98 Heenan J said at [73]:
“I agree, with respect, with the conclusions of Steytler J and of Pullin J in this case that in circumstances such as the present the Commission is empowered to make a monetary order, in the nature of damages, to deal with the industrial matter before it …”

99 The “circumstances” did not include any decision that the claim for a denied contractual benefit was of an “industrial character”. I have earlier referred to his Honour’s reasons at [60]. For present purposes I emphasise this passage:
“… ‘any amount to which the claimant is entitled’ or payment of ‘a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment’ (s 29(1)(b)(ii)) are each entitlements which the employee has arising out of his contract of employment with the employer. They are contractual and, therefore, common law claims which exist independently of the provisions of the Act and which could, if necessary, be pursued in any court of appropriate general civil jurisdiction.”

100 Accordingly all three judges in Cool or Cosy said, directly or indirectly, that the Commission’s jurisdiction does not depend upon a decision that the contractual claim is of an “industrial character”. If this is different from what the Court said in Hotcopper, then Cool or Cosy should be treated as having overruled it on this point.

(v) The Problems with Hotcopper
101 In Hotcopper, Anderson J said, with the agreement of the other members of the Court, at [18]:
“Whilst it may be convenient to refer to a reference pursuant to s29(1)(b)(ii) as a claim ‘under’ s29(1)(b)(ii), the Commission's authority to deal with such matters is still to be found in s23(1) and the definition of industrial matter in s7. The matter which is referred must still be an industrial matter as defined in s7.”

102 This is contrary to what the Court said in Cool or Cosy to the extent that it does not recognise that a claim which meets the description of s29(1)(b)(ii) is, because of that alone, an “industrial matter”. As their Honours recognised in Cool or Cosy, the Act says that a claim for a denied benefit under an employment contract is of this character, without any separate or additional consideration.
103 The judges in Cool or Cosy also expressly or implicitly reasoned contrary to what Anderson J said at [24] where his Honour said:
“It seems to me that if there is a dispute which is an industrial matter, and the subject matter of it is a claim (in the sense of a complaint) of the kind defined in s29(1)(b)(ii), it is a dispute that may be dealt with by the Commission on a reference by the employee.”

104 Again, Anderson J introduces a superadded requirement which their Honours in Cool or Cosy made clear is not there. Also, as I have said, the superadded requirement does not find a home in the words of the legislation.
105 At [26] his Honour said:
“Parliament cannot be taken to have intended that any matter relating in any way to the duties of employers as regards contractual benefits is a matter that may be dealt with by the Commission as an industrial matter, although it is possible to read the definition of industrial matter as expansively as that. Notwithstanding the enactment of s7(1)(1a) [sic], the definition must be read down by reference to the scope and purpose of the Act as a whole ‘and so read, must be confined to [matters] of an industrial nature’: Slonin v Fellows (1984) 154 CLR 505.” (emphasis in original)

106 With respect His Honour’s comment about “any matter relating in any way to the duties of employers” is not relevant. This is because this does not reflect what is said in s7(1a) and s29(1)(b)(ii) of the Act.
107 Also with great respect, Anderson J seems to have presumed the intention of the legislature rather than determining what it was by the construction of the language used. As Gleeson CJ said in Wilson v Anderson (2002) 213 CLR 401 at [8]:
“Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will.”

108 Additionally, the assertion by Anderson J that the sections of the Act should be read down is not in accordance with the liberal way in which beneficial provisions are usually construed. (See Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, 2006) (Pearce and Geddes) at [9.3]).
109 Anderson J at [26] in Hotcopper gives an example about a claim for damages for personal injuries arising out of an unsafe system of work. His Honour says such a claim might be within the literal construction of the words of the Act but beyond the jurisdiction of the Commission. In my opinion and with respect the example is not apposite. I do not think it has or could be suggested that such a claim was for a non-allowed contractual benefit.
110 In addition and again with respect, the quotation from the reasons of Wilson J in Slonin v Fellows (1984) 154 CLR 505 at 513 is not relevant to the determination of the jurisdiction of the Commission. That case was about different legislation, s44 of the Industrial Relations Act 1979 (Vic) and the meaning of “industrial dispute” under that legislation, in the context of the jurisdiction of the Teachers (Day Training Centres) Conciliation and Arbitration Board. As emphasised by the Court (see for example Gibbs J at 508, 509 and 511), the decision was based upon the words used in the legislation. That legislation and the issue before the Court did not involve anything like s29(1)(b)(ii) and s7(1a) of the Act.
111 As Buchanan J said in Tristar Steering and Suspension Ltd v Industrial Relations Commission of New South Wales (2007) 158 FCR 104 at [44], about an argument based upon a particular sentence of the reasons of the majority in the Work Choices Case:
“The sentence relied upon by the minister was directed to a different issue. It is important not to take it out of context or substitute it for the text in the legislation in a case involving different considerations: see Caltex Oil (Aust) Pty Ltd v Feenan [1981] 1 NSWLR 169 at 173.”

112 This applies in my opinion and with respect to the reliance by Anderson J on the observations made in Slonin.
113 Anderson J also suggested a jurisdictional test at [27]:
“I think that the line must be drawn by reference to the intrinsic nature and circumstances of the particular dispute, the question being whether it is or is not really and truly a dispute of an industrial nature, susceptible of just resolution under the Act.”

114 This test does not find any support either in the Act or in Cool or Cosy. How one determines the “intrinsic nature” of the dispute is a difficulty which his Honour did not suggest an answer to.
115 Anderson J at [28] referred to commissioners not requiring legal qualifications as being relevant to deciding upon the extent of the jurisdiction of the Commission. With respect I do not think this withstands scrutiny. It may have been perceived by Anderson J to be a problem that non-legally qualified commissioners can decide contractual benefits claims, but that does not change or mould the words of the Act about the content of the Commission’s jurisdiction.
116 Later at [28] his Honour referred to the lack of an “industrial relations complexion” of a claim by a “highly-paid executive” for damages for breach of a “term in a sophisticated remuneration package”. Again, I do not find the meaning of this to be clear. What is it about a claim of this nature that means it cannot have been intended by the legislature that it be determined by the Commission? Is it the fact that the person is an executive, he or she is highly paid, the remuneration package is sophisticated, or all three? If the concern is that the claim of the “highly-paid executive” might be decided by a person without legal qualification then if an error is made it is correctable on appeal. His Honour also said at [29]:
“In my opinion, in its essential character, this is a private claim of a commercial nature which lacks any ingredient or complexion of industrial relations.”

117 If a claim of this character is beyond the jurisdiction of the Commission then this would mean that in s29(1)(b)(ii) applications, the following inquiries would need to be made before the Commission can be satisfied there is jurisdiction:
(a) Is this a “private claim”?
(b) If so, is the private claim of a “commercial nature”?
(c) If so does the claim have the “complexion of industrial relations”?
118 Again his Honour does not say how the Commission might go about determining what appear to be asserted as jurisdictional facts. In my respectful opinion, the difficulty of application and the lack of resonance with the words in the Act tell against the acceptability of his Honour’s reasons.
119 Anderson J at [29] said:
“It is not a claim the resolution of which one would expect to be committed to a tribunal created for the purpose of achieving the objects set forth in s6 of the Act. Neither is it a dispute which parliament could have thought might be justly settled by an industrial relations tribunal acting in conformity with the requirements of s26; that is to say, by reference only to the substantial merits of the case without regard to technicalities or legal form and without regard for rules of evidence and by taking into consideration the capacity of the defendant/employer to pay. Those criteria, as appropriate as they may be to ensure the fair and just resolution of industrial disputes, are inimical to the proper adjudication of the precise legal rights and obligations of the parties in this case, in the events which have happened.”

120 In my respectful opinion these comments are problematic because:
(a) Again his Honour seems to attribute parliamentary intention without placing sufficient weight upon the words used in the Act.
(b) Parliament clearly has given the Commission the responsibilities set out in the Act, so it is difficult to say that the postulated outcome was contrary to its intention.
(c) His Honour does not analyse the type of role that s26(1)(a) of the Act plays in the determination of a denial of contractual benefits claim. As I have earlier described, the impact of s26(1)(a) is flexible, depending upon what is being decided by the Commission.
(d) His Honour also does not pay due regard to the fact that in determining a claim for a denied contractual benefit, the Commission is acting judicially (See Walden v Hansley Holdings Pty Ltd t/as GIS Engineering (1998) 78 WAIG 3370, per Beech CC at 3370, citing Simons v Business Computers International (1985) 65 WAIG 2039 per Edwards AP) and exercises judicial power. (And see to similar effect, but in the context of the Commission’s unfair dismissal jurisdiction Kennedy J in Helm v Hansley Holdings Pty Ltd (in liq) (1999) 118 IR 126 at [9]). In Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542, Crennan and Kiefel JJ discussed the meaning of “judicial power” at [151]ff. Although noting the difficulty of “framing an exclusive and exhaustive definition” (footnotes omitted), their Honours then gave these characteristics of the exercise of judicial power:
“[152] … An adjudication is undertaken in order to resolve a dispute about the existing rights and obligations of the parties by determining what they are, not in order to determine what rights and obligations should be created. Holmes J, delivering the opinion of the court in Prentis v Atlantic Coast Line Co, said that a judicial inquiry ‘investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end’.

[153] It is both logical and necessary that the right or obligation in question exist independent of, and prior to, the exercise of judicial power. The controversy about its existence is the hallmark of a matter before the courts. The ascertainment of its existence is exclusively a judicial function. In doing so the courts apply the law, not considerations foreign to it, such as policy …”. (After the reference to Prentis there was a footnote and the citation of 211 US 210 at 226 (1908)).

The function of the Commission under s29(1)(b)(ii) plainly falls within these descriptions. (See also Luton v Lessels (2002) 210 CLR 333 per Callinan J at [188]-[189]). In a claim referred to the Commission under s29(1)(b)(ii), contractual rights, under the “common law of Australia” (Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]) are determined and adjudicated upon. When the Commissioner is making such a determination this must of itself have an impact upon the effect of s26(1)(a) of the Act. Different considerations apply, for example in arbitrating upon the just terms of an award.
(e) His Honour inserts the word “only to” before “substantial merits”, in s26(1)(a) of the Act when those words are not there.
(f) His Honour misquotes what s26(1)(b) of the Act says about the rules of evidence. Not being bound by is different from “without regard for”.
(g) The contents of the Act do not mandate that the capacity of an employer to pay will shape the orders to be made in a s29(1)(b)(ii) claim. The text of section 26(1)(d)(iii) of the Act and the context of a decision upon a s29(1)(b)(ii) claim, means that the former does not apply to shape the orders made in the latter.
(h) The legislation clearly contemplates that the Commission will be involved in the adjudication of precise legal rights; otherwise how does it decide if there has been:
(i) A “benefit” to which someone was “entitled under his contract of employment”; and
(ii) Whether or not that “benefit” has been “allowed” by the employer.

(vi) BGC (Australia) Pty Ltd v Phippard (2002) 82 WAIG 2013
121 I should also mention that the Industrial Appeal Court, constituted by the same members as in Hotcopper, published at substantially the same time its reasons in Phippard. Hasluck J wrote reasons which were agreed with by Anderson and Parker JJ. His Honour at [40] referred to Hotcopper and made the same point about “a private claim of a private commercial nature [which lacks] any ingredient or complexion of industrial relations cannot be characterised as an industrial matter …”. Hasluck J said such claims were therefore outside the jurisdiction of the Commission. His Honour said they concerned “the enforcement of existing legal rights [and] require the exercise of judicial power and are to be dealt with in the Courts”. (His Honour made substantially the same point at [54]).
122 With respect, this reasoning suffers from the same deficiencies as those identified above with respect to Hotcopper. For example, the determination of a denial of contractual benefits claim by the Commission does involve the enforcement of legal rights and the exercise of judicial power. Put simply and at the risk of repeating myself, a benefit to which someone is entitled under his or her contract of employment is an existing legal right; and the way in which the Commission deals with a claim that it has not been “allowed” is, as made clear in Cool or Cosy, in accordance with the common law.

(vii) The Demise of the Hotcopper Myth
123 As stated the observations made by Anderson J, in Hotcopper (and those of Hasluck J in Phippard) on this point are not supported by and are inconsistent with the reasons in Cool or Cosy. Cool or Cosy, as the most recent expression of the nature of the Commission’s jurisdiction in a s29(1)(b)(ii) claim, should be followed.
124 Accordingly the Commission does not need to decide, in a denial of contractual benefits claim, if the claim has an “industrial character” and is therefore an “industrial matter” before it has jurisdiction. The Commission has jurisdiction as, if the claim is of a type that is set out in s29(1)(b)(ii) of the Act, the Act expressly (in s7(1a)) and implicitly (in s29(1)(b)(ii)) provides it is an “industrial matter” and that accordingly the Commission may deal with it under s23.

(2) The Second Issue – Does the Work Choices Case Preclude the Acceptance of the Applicant’s Argument about Coverage?
(a) The Respondent’s Submissions about the Second Issue
125 The respondent’s position on this argument was provided within the context of a submission that the outcome of the Work Choices Case firmly established an affirmative answer to the first question. It was submitted that s16(1) excluded the Act and therefore the same subsection must be effective in excluding an employee’s right to bring a claim pursuant to s29(1)(b)(ii) of the Act. It was submitted to hold otherwise would be contrary to the Work Choices Case and amount to revisiting the challenge of Western Australia to s16(1)(a), especially when the majority had referred to denial of contractual benefits legislation. The reasons of the majority in the Work Choices Case at [367] and [369]-[372] were relied upon in particular.

(b) The Applicant’s Submissions about the Second Issue
126 The applicant’s submissions were primarily based upon the construction of the WRA. Counsel submitted the Work Choices Case only dealt with the validity of s16 of the WRA and not with its coverage. Merely because the denial of contractual benefits was “in the air” did not mean the majority decided s16 of the WRA extended that far. Their Honours had emphasised at [5] that they were only deciding the constitutional challenges to sections as summarised in a document provided to the High Court by the parties.

(c) Analysis of and Opinion about the Second Issue
127 I do not accept the respondent’s submission that the decision of the majority in the Work Choices Case necessarily involves the rejection of the applicant’s argument about the coverage of s16(1) of the WRA. I accept the submission of the applicant’s counsel that the Work Choices Case decided the constitutional validity of s16 of the WRA but not its coverage; at least with respect to a denial of contractual benefits claim. This type of claim was referred to at [367] of the reasons of the majority but it is important to note the context and what their Honours said about the issue. Paragraph [367] recorded examples of the contentions made by Western Australia that s16 had attempted to invalidate state laws despite having failed to enact any corresponding federal law. The enforcement of contractual entitlements was mentioned as an example. The argument of the Commonwealth, which the majority accepted, was that the Commonwealth Parliament could “indicate the relevant field it intended to cover to the exclusion of State law … and that it sufficed for the Commonwealth to have some provisions dealing with aspects of the field, leaving others unregulated” [369]. At the conclusion of [369] the argument of the Commonwealth which the majority accepted was that it had chosen to “exclude State law only in respect of the relations of employees and employers as defined in ss5(1) and 6(1)”. At [373] the majority referred to the arguments of the Commonwealth about the contentions advanced by Western Australia in relation to areas allegedly dealt with by State law but not the amended WRA. Their Honours then said it was unnecessary to decide on the merits of the competing submissions because the controversies were irrelevant to validity. It was also said to be undesirable to do so in the absence of factual circumstances raising a concrete dispute.
128 In my opinion this demonstrates that their Honours did not decide whether it accepted all of the examples given by Western Australia about the extent of the reach of s16(1) of the WRA. In my opinion therefore the majority left open the question of whether s16(1) of the WRA purported to exclude claims made under s29(1)(b)(ii) of the Act to enforce contractual entitlements.
129 That the issue was left open by the Work Choices Case is consistent with what was expressed by Professor Andrew Stewart and Dr Joellen Riley in their article ‘Working Around Work Choices: Collective Bargaining and the Common Law’ (2007) 31(3) Melbourne University Law Review 903. They said at 926:
“If money is owed to someone who is party to the agreement, then the remedy is straightforward enough. An action for debt or money due may be instituted in the relevant local or magistrates’ court or, in some jurisdictions, possibly even in an industrial tribunal.”

130 In a footnote after this sentence, Professor Stewart and Dr Riley referred to the jurisdiction of the Industrial Relations Court of South Australia under s14 of the Fair Work Act 1994 (SA) (the FWA) and the Commission under s29(1)(b)(ii) of the Act. Under the former, jurisdiction is given to decide a monetary claim for a sum due under a contract of employment. Professor Stewart and Dr Riley then said there was doubt whether the jurisdiction could now be exercised in relation to “federal system employees”. Albany Esplanade and Armanini v Transfield Services (Australia) Pty Ltd (2007) 162 IR 432 were cited as having contrasting views. The latter case was in turn cited in Head v Adrad (2008) 170 IR 359 which is relied upon by the applicant and later discussed.

(3) The Third Issue – Does Section 16(1) of the WRA only apply to Extant Employees?
131 Although the respondent’s argument on this issue was an alternative and additional argument to that discussed in the fourth issue, it is logical to address it first.

(a) The Respondent’s Submissions about the Third Issue
132 The issue was not addressed by the respondent’s counsel in any depth at the hearing. However in supplementary written submissions filed with the leave of the Full Bench, the respondent’s counsel argued the WRA did not cease to operate after employment ended, but continued to do so. This was said to be illustrated by:
“(a) section 166B(d) and (g), which give the Workplace Ombudsman power to investigate the issue of compliance with the WRA and to enforce the WRA without expressing any restriction to the effect that such investigations or enforcement can relate only to existing section 5(1) employees employed by the relevant section 6(1) employer at the time of the investigation or at the time of the enforcement action being taken. (It would be an absurdity if the Workplace Ombudsman was required by the Act to halt an investigation or an enforcement proceeding because the employee had resigned from employment with the relevant employer);
(b) section 404, which enables inspectors to take over employees’ actions after they have been commenced by employees; and
(c) section 718, which operates in respect of employees who were former employees of constitutional corporations because an Inspector has standing to enforce the WRA irrespective of whether the relevant employee remains employed by the relevant employer. (This is so notwithstanding that there is no extended definition of ‘employee’ applicable to section 718).” (Paragraph numbering altered – emphasis in original).

133 Counsel summarised by reference to Wenn and the Work Choices Case at [364]-[372] that the WRA “defines a field of operation which includes the enforcement of provisions of that Act after the employment of an employee (as defined in s5(1) of the WRA) has ceased”.

(b) The Applicant’s Submissions about the Third Issue
134 As stated it was an additional or alternative argument of the applicant that s16(1) of the WRA only applied to an existing employment relationship. The argument was supported by s5(1) of the WRA which did not refer to a person “previously employed”. Counsel distinguished s7(1a) of the Act which expressly included the claims of former employees as being an “industrial matter”. Counsel also noted what the majority said in the Work Choices Case at [8] about the definitions of employer and employee being central to the operation and constitutional basis upon which the framework of the WRA was constructed. Counsel went as far as to submit that the WRA only applied to existing employees because of the constitutional constraints of the corporations power (T23, 28). It was contended that as the applicant was no longer the employee of the respondent and so s16(1)(a) of the WRA did not apply to the claim before the Commission (T24). Counsel submitted that different meanings of employer and employee were used in the WRA where thought appropriate (eg s16(4)), but this had not occurred in s16(1) (T23).
135 In his supplementary written submissions counsel for the applicant said:
“(a) The WRA both (i) ousts certain State and Territory legislation (s16(1)); and (ii) enacts federal legislation. The strict s5 definition of ‘employee’ applies to s16(1): NSW v Commonwealth at [358] and [359]. This may be explained by constitutional reasons: NSW v Commonwealth at [8].
(b) Whether that meaning applies to other sections depends on two matters.
(c) First, Schedule 2 specifically sets out those provisions in which ‘employee’ bears its ordinary meaning instead of the s5 meaning. For example, ‘employee’ in s16(3)(m) must include employees of non-constitutional corporations and is thus included in Schedule 2. (The High Court gave this example at [357].) This limits the examples that could be useful to the respondent; to make its point, the respondent must find an example that is not in Schedule 2.
(d) Second, whether the strict s5 definition applies elsewhere is determined by the context. Section 5 applies the strict definition ‘unless the contrary intention appears’. Hence, the applicant’s [sic – respondent’s] submission fails, because no other section would be unworkable on the basis of an unwavering application of s5.” (Paragraph numbering altered).

(c) The Respondent’s Reply about the Third Issue
136 The respondent submitted that a comparison between the WRA and s7(1a) of the Act was not apposite. This is because the latter was inserted into the Act to remedy a problem identified by a decision of the Industrial Appeal Court about the meaning of an “industrial matter” (Coles Myer Ltd v Coppin (1993) 11 WAR 20; (1993) 73 WAIG 1754). That context was not relevant to the WRA.

(d) Analysis of and Opinion about the Third Issue
137 As I have set out, the applicant’s argument on this issue was based upon the words and construction of s16(1)(a) of the WRA and its reliance upon the definitions of “employee” and “employer” in s5(1) and s6(1) respectively. The argument relied primarily upon the tense used in the definitions. As the point was developed by both parties however it seemed to evolve into a question of whether the WRA was workable if it did not apply to former employees. In my opinion this takes the argument down a burrow that it does not need to go.
138 For what it is worth however, any submission that wherever “employee” and “employer” appear in the WRA one must read it as “employee or former employee” and “employer or former employer” must be rejected. The WRA uses the expression “former employee” but only once. That is in s726 about unclaimed monies which were payable to a “former employee” and “the employer does not know the former employee’s whereabouts”. This shows however that the legislature was conscious of the distinction between past and present employees. The same point can be made about the regulations. In the WRR “former employee” is used once, in 2.19.18 which is about inspection and copying of records relating to an “employee or former employee”.
139 Plainly, some of the contents of the WRA could not apply to a former employee. These include the application of Australian Pay and Classification Scales under Part 7, the creation of workplace agreements under Part 8, the circumscription of industrial action under Part 9, the minimum entitlements of employees under Part 12 and freedom of association under Part 16. In some of these parts definitions of “employee” beyond the basic definition in s5(1) are used, but this does not undermine the point. In other parts or sections of the WRA the text and context indicates it may or does apply to a former employee. Examples are those given by the respondent in its supplementary written submissions. Also the text of some sections of the WRA would not make sense if “employee” always meant a present rather than past employee. An example is s643(1) of the WRA which refers to an “employee whose employment had been terminated”. Overall, the text and context of the parts, divisions and sections of the WRA determine whether it applies to prospective and/or present and/or former employees.
140 As I have said however I think these points drift from the determination of the applicant’s argument. The argument is about the construction of s16(1)(a) and its possible inclusion of former employees. As to that, firstly, I reject the applicant’s reliance upon s7(1a) of the Act for the reasons submitted by the respondent. Secondly, I do not think the Commonwealth are prevented, under s51(xx) of the Constitution from making laws about the former employees of a constitutional corporation. As set out earlier the majority in the Work Choices Case accepted the correctness of what Gaudron J said about the corporations power in Re Pacific Coal. The power includes, for example, the regulation of the conduct and imposition of obligations upon a corporation and its employees. Once the power goes that far, it must in my opinion extend, subject to the balance of the Constitution, to at least encompass power to legislate about the legal consequences of the failure to comply with proscribed conduct or an obligation after the employment relationship has ended. That is, the cessation of the relationship does not of itself mean the nexus with the corporations power is lost.
141 Thirdly, in my opinion the applicant’s main, constructional argument on this issue is flawed as it does not pay due regard to the expression “apply in relation to” and the disjunctive “or”, between “employee” and “employer”. The latter has the effect that what precedes it can have application only to an “employer” as defined. Also, “apply in relation to” means the State or Territory law does not have to be about an employer, as defined in s6(1); being “in relation to” an employer is sufficient. That expression is broad in its meaning and generally only requires a connection between the two subjects. (See Pearce and Geddes at [12.7] and the discussion of the like expression “in respect of” in Health Services Union of Western Australia (Union of Workers) v Director General of Health (2007) 87 WAIG 737 at [46]-[50]). A law of a State about, for example, the legal consequences arising from what had occurred during the period of employment of an employee with a constitutional corporation is “in relation to” it “so far as it employs, or usually employs, an individual”; in the terms of the definition in s6(1) of the WRA. Accordingly s16(1)(a) of the WRA may apply to legislation involving a former employee.
142 The additional or alternative argument of the applicant is accordingly not accepted.

(4) The Fourth Issue – Does the Coverage of Section 16(1) Include the Jurisdiction of the Commission under Section 29(1)(b)(ii) for Constitutional Corporations?
(5) The Fifth Issue – The Construction of Chapter 2, Regulation 1.2 of the WRR
143 It is appropriate to set out the submissions on these two issues in immediate sequence, as the applicant’s submissions on the fifth issue feed into those upon the fourth. I will then analyse the submissions. It is also appropriate to consider the applicant’s submissions first.

(a) The Applicant’s Submissions about the Fourth Issue
144 This was the applicant’s primary argument which was developed with care and in detail.
145 Counsel submitted the WRA did not purport to provide a scheme for the coverage of all relations between a constitutional corporation employer and its employees. It was limited to the legislative regulatory scheme (T22). An analogy of architectural drawings and overlays was relied upon. The analogy was that after the amendments to the WRA, the common law of employment relationships remained but what the amendments did was to remove the State overlay of the regulation of the relationship and put the Commonwealth’s system in its place. It was submitted that underneath both overlays remained the common law (T22). That is, the WRA did not remove common law claims for a denial of contractual benefits, nor the right to pursue such a claim in the Commission.
146 It was then submitted the expression “following laws of a State” in s16(1) of the WRA meant statutes, regulations or other written laws. It was submitted therefore that s16 of the WRA did not purport to exclude the common law in any case; citing Phillips at [26]. Counsel then submitted, relying on the Work Choices Case at [359], that s16(1) of the WRA did not purport to exclude the entirety of the Act. It applied only “so far as” the Act would otherwise apply “in relation to an employee or employer”. This did not include the applicant’s right to enforce payment of the debt allegedly owed to her by the respondent in any court of competent jurisdiction. Counsel submitted therefore the issue for the Full Bench was whether the WRA excludes the applicant’s right to enforce payment of the “debt” in the Commission.
147 In support the applicant’s counsel made submissions about:
(a) A purposive interpretation of the WRA.
(b) The methods set out in s3(d) and s3(e) of the WRA, by which the principal object of the WRA is to be achieved.
(c) The Explanatory Memorandum for the Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) about proposed section 7C; which became s16 of the WRA.
(d) The Second Reading Speech of Senator Abetz, Special Minister of State, recorded in Hansard on 10 November 2005 at 164-170.
148 As to the extrinsic materials, in his written submissions counsel said:
“24. Ambiguity as to the intent of the WRA must be addressed by reference to the purpose of the legislation, which can be discerned from its terms and from certain extrinsic materials under s15AB Acts Interpretation Act 1901 (Cth). ‘Ambiguity’ includes not only lexical ambiguity but also the intention of the legislation in general: Repatriation Commission v Vietnam Veterans' Association (2000) 48 NSWLR 548 at [116] per Spigelman CJ.”

149 Counsel referred to the Explanatory Memorandum at [70] which provided that “proposed section 7C” would “ensure that the amended WRA would operate to the exclusion of present and future State and Territory industrial regimes in their application to employers and employees who would fall within the general constitutional coverage of the amended WRA (that is, employers and employees within the meaning of [the proposed relevant subsections])”. It was submitted enforcement of a common law contract of employment was not part of the “State industrial regime”.
150 Counsel asked rhetorically, what purpose of the WRA would be served by saying to someone in the applicant’s position “you can sue for this anywhere you like but not in the Commission”? (T27). It was also submitted the Commission having jurisdiction was not the “antithesis of a nationalised system” (T27).
151 It was submitted these contentions were supported by Adrad at [42]-[49], Tristar at [10] per Kiefel J; cf [21] per Gyles J and [46] and [47] per Buchanan J and Construction, Forestry, Mining and Energy Union (NSW) v Brolrik Pty Ltd (2007) 167 IR 214 at [23], [26] and [27]. (I will later analyse these decisions).
152 Counsel also supported his argument by submissions upon the construction of 2.1.2 of the WRR, which I will now summarise.

(b) The Applicant’s Submissions about the Fifth Issue
153 The applicant joined with the respondent in submitting 2.1.2 of the WRR did not apply to the applicant’s case. It was submitted however that the reason it did not apply was instructive. The contents of 2.1.2 of the WRR were consistent with an intention not to exclude State laws about the enforcement of common law contracts of employment. This was because the regulation saved those provisions of the Act which were to be “banished by s16” for the future.
154 Relevantly in his written submissions at [38]-[39], counsel submitted (omitting headings):
“38. The Regulation would surely be intended to save enforcement of common law obligations in the pre-Work Choices period, given that it does save enforcement of IR Act obligations in that period. Otherwise, the effect of the Reg would be absurd - it would save the ‘bad’ and exclude the ‘good’ (from Work Choice’s perspective).

39. Therefore, the only sensible approach to the WRA and WR Regs is to say that Reg 2.1.2(2) does not save [the applicant’s] common law claim because it does not need to - s 16 does not exclude her claim in the first place.” (emphasis in original)

155 Counsel accepted that ordinarily the content of regulations could not be used to construe the legislation under which they were made. He relied however on exceptions identified in Pearce and Geddes at [3.41], that:
(a) If the Act and regulations formed part of a legislative scheme, the regulations could be used to ascertain the nature of the scheme.
(b) If a statutory provision permits exceptions to be made to it by regulations, the latter may be used to interpret the former (T30-31).
156 Alternatively, it was submitted that if (contrary to the applicant’s primary submission) the Full Bench held that a “law” in s16 included the common law to the extent enforced by the Commission, then 2.1.2 of the WRR could apply to save the jurisdiction of the Commission to deal with the applicant’ claim. This was because firstly, any denied contractual benefit claim was saved to the extent that one of the acts or omissions relied upon to found the claim occurred prior to 27 March 2006; citing Albany Esplanade. Secondly, the regulation did not require the entire cause of action to have been completed before 27 March 2006. Thirdly, in the present case it was to be argued that the obligation to make the payments sought was because of a direction to the applicant made in 1999, to work additional hours. This was an act which occurred before the relevant date.

(c) The Respondent’s Submissions about the Fourth Issue
157 The respondent submitted the construction it urged about the coverage of s16 of the WRA was “not extreme” because the Act is expressly referred to in s5 of the WRA as a “State or Territory industrial law”. Counsel also pointed to the “industrial” nature of a s29(1)(b)(ii) claim described by Anderson J in Hotcopper at [26] (T42). (I mention now that I do not find this submission persuasive for the reasons earlier set out).
158 The respondent also referred to the second reading speech of Senator Abetz, where he said:
“We live in an integrated national economy and it makes no sense whatsoever to adopt anything other than a national approach to workplace relations. By using a combination of constitutional heads of power, Work Choices will cover up to 85 per cent of employees across Australia.
While employers and employees covered by Work Choices will not be subject to regulation by state employment laws, state laws will continue to cover such matters as occupational health and safety, workers compensation, trading hours and public holidays.” (Hansard at 165).

159 Although submitting the national system was the “key”, counsel did not however point to anything specific about the construction she urged which would enhance a “national system” (T44). It was submitted though that the right to make a claim was “part of the State’s industrial regulation regime” and therefore excluded by s16 of the WRA (T44).
160 The respondent also submitted that in Adrad, the Work Choices Case was not referred to in the reasons, so that it did not take into account the present respondent’s argument. With respect to Tristar, counsel submitted the reasons of Buchanan J at [47] (as to which see below) supported her position.

(d) The Respondent’s Submissions about the Fifth Issue
161 It was submitted that 2.1.2 of the WRR did not preserve the Commission’s jurisdiction to deal with the claim of the applicant because it did not arise under a “law of a State” as defined in s4(1) of the WRA, but rather under the common law. Phillips was cited in support. The claim was therefore not excluded by s16(1) of the WRA, as required by the first limb of 2.1.2 of the WRR. Although s16(1) did not exclude the applicant’s common law right, it did exclude access to the Commission under the Act as part of the State “industrial regulation [sic – relations] regime” (T3). It was also submitted that the two limbs of 2.1.2 of the WRR must be read conjunctively. It was therefore unnecessary to consider whether the acts or omissions the subject of the claim occurred prior to the “reform commencement” as required by the second limb.

(e) Analysis of and Opinion about the Fourth and Fifth Issues
(i) The Extrinsic Materials
162 As referred to earlier both parties sought to rely on extrinsic materials. The majority in the Work Choices Case also did so. Accordingly, I see no difficulty in doing so, in accordance with s15AB of the Acts Interpretation Act 1901 (Cth) and the observations of Spigelman CJ in Vietnam Veterans’ Association, quoted earlier.
163 I have earlier referred to the second reading speech of Senator Abetz which said that employers and employees covered by Work Choices would not be subject to “regulation” by State employment laws. I have also earlier referred to the Explanatory Memorandum which was relied upon by counsel for the applicant. It is relevant however that the language he relied upon in [70] was not replicated in the paragraphs that followed. Paragraph [71] referred to a “State or Territory industrial law in its application to constitutionally covered employers and employees” (original emphasis). This expression was repeated at [72] with respect to the definition of a State or Territory industrial law.
164 An Explanatory Statement to the Workplace Relations Regulations 2006 (SLI No. 52 of 2006) was also issued by the authority of the Minister for Employment and Workplace Relations. The history of the development of explanatory statements to Commonwealth regulations is set out in the article by Mr Patrick O’Neil, from the Parliament of Australia Parliamentary Library, entitled ‘Was there an EM’?: Explanatory Memoranda and Explanatory Statements in the Commonwealth Parliament’ (online version, updated on 12 September 2006; viewed on 19 November 2008). As is there explained, explanatory statements are to Commonwealth regulations what explanatory memoranda are to bills. They fulfil the same function. The different nomenclature merely serves to distinguish the two. Explanatory statements are now compulsory for all subordinate legislation under the Legislative Instruments Act 2003 (Cth); see s20 and s26. Due to s13(1)(a) of the Legislative Instruments Act, combined with s15AB of the Acts Interpretation Act, an explanatory statement may be used as an aid to construction in the same way as an explanatory memorandum.
165 Relevantly for present purposes, the explanatory statement said of 2.1.2 of the WRR and s16 of the WRA the following:
“14. Subsection 16(1) provides that the Act applies to the exclusion of certain laws of a State and Territory so far as they would otherwise apply in relation to an employee or employer within the meaning of subsection 5(1) or 6(1).
15. The effect of paragraph 16(2)(b) is that subsection 16(1) does not apply to a law of a State or Territory in so far as the law is prescribed under paragraph 16(2)(b). 
16. Regulation 1.2 provides the State and Territory laws that are prescribed for the purposes of paragraph 16(2)(b): [These are then described in asterisk point form]. …
17. Subregulation 1.2(2) will apply to compliance with obligations, and the enforcement of accrued rights, which exist at the reform commencement under, for example, State and Territory industrial laws and instruments made under such laws.  [An example is then provided]. …
18. To the extent that a State or Territory law is within the scope of subsection 16(1), and is not prescribed under this regulation or otherwise saved by subsections 16(2) and 16(3), the State or Territory law will be excluded in relation to an employee or employer within the meaning of subsections 5(1) or 6(1).  The effect of this is that, for example, the State and Territory industrial laws will cease to apply in relation to an employee or employer within the meaning of subsection 5(1) or 6(1) for the following kinds of matters:
* matters about state awards (other than compliance with award obligations before the reform commencement), including the making or variation of an award;
* matters about wages (other than compliance with wage obligations before the reform commencement), including applications to vary awards to amend wages provisions, State wage cases, and applications for general orders to apply to a State or industry in a State, relating to wages;
* matters about agreements between employers and employees, and employers and unions (other than compliance with agreement obligations before the reform commencement), including certification, registration and variation;
* matters involving workplace dispute resolution ;
* matters about industrial action, including strike pay (other than compliance with award obligations before the reform commencement) -- except for industrial action affecting essential services (which is a non-excluded matter under paragraph 16(3)(k));
* matters about terminations of employment that occur after the reform commencement;
* matters where proceedings have not yet commenced at the reform commencement, where the applicant seeks the variation or setting aside of rights and obligations under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; and
* matters about a transmission, succession or assignment of a business, or part of a business, that occurs after the reform commencement.
19. Section 16 does not affect the operation of State and Territory laws in so far as they apply to employees or employers other than employees and employers within the meaning of subsection 5(1) or 6(1), respectively.
20. Consistent with sections 17 and 18, regulation 1.2 is not intended to limit the circumstances in which the Act (other than section 16), and instruments made under the Act, are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.”

166 Despite the breadth of what is said in [20], there is nothing in [18] which specifically suggests a legislative intention that an effect of s16 is to prevent the Commission from exercising its jurisdiction under s29(1)(b)(ii), with respect to an employee of a constitutional corporation after “the reform commencement”.

(ii) The WRR – Chapter 2, Regulation 1.2 – Conclusions on the Fifth Issue and Second Referred Question
167 I accept the submissions of the parties that 2.1.2 of the WRR does not apply to a person with a claim of the type of the applicant. For this subregulation to be engaged, there must in the first instance be an obligation under a State or Territory law. The applicant’s present claim under s29(1)(b)(ii) of the Act does not satisfy this criteria. This is because as I have set out earlier, the applicant is not seeking to enforce a statutory obligation but applies to the Commission to exercise its jurisdiction to decide her common law denial of contractual benefits claim. As submitted by the parties, the entitlement of a person to ensure their contract of employment is complied with, and take remedial action in a court, or non-court industrial tribunal, is not a law of the relevant type. The laws referred to must be statutory, not the common law; which is in any event the common law of Australia and not that of a State or Territory. (As well as Lipohar¸ cited by the applicant, see Farah Constructions at [135]).
168 As set out earlier, neither of the parties adopted the contrary view expressed by Smith SC in Albany Esplanade at [129]-[135]. In my opinion, with respect, the position of the parties is correct. In my opinion and with respect Smith SC was in error in saying at [135] in Albany Esplanade that the remedies which the Commission could provide under s29(1)(b)(ii) differ in part from common law remedies. This point is covered in my earlier discussion of Cool or Cosy and the first issue. I do not therefore accept the reasoning expressed by Smith SC at [136] of Albany Esplanade. At [140] in Albany Esplanade Smith SC found the relevant connection required for 2.1.2 of the WRR to be between an application made under s29(1)(b)(ii) of the Act and “the obligation on the Commission to deal with the application …”. I do not accept that this is the type of obligation which is covered by 2.1.2 of the WRR. In my opinion the type of obligation being referred to in the subregulation, with its link to s16(1) of the WRA, is a statutory obligation upon an employer, not that of a court or industrial tribunal. This construction is consistent with the examples contained in the Explanatory Statement to the WRR, quoted earlier.
169 Given this conclusion, I think there is some force in the applicant’s counsel’s written submissions at [38]-[39], quoted above. There is no clear purpose consistent with the scheme of the legislation as a whole for the WRA and the WRR to combine to allow a person to proceed with their claim in the Commission, despite s16(1) of the WRA, if the requirements of 2.1.2(2) of the WRR are present, but not the enforcement of a common law contractual claim, when the latter is not affected by the WRA.
170 For these reasons in my opinion referred question of law 2 should be answered “no”, if the answer to question 1 is “yes”.

(iii) The South Australian Cases
171 There are at least a quintet of cases in which the Industrial Relations Court of South Australia has decided that s16 of the WRA does not exclude its jurisdiction under s14 of the FWA to determine monetary claims against constitutional corporations. These are Armanini, Jaffer v BDS Recruit Pty Ltd [2007] SAIRC 97; (2007) 169 IR 97, Dohrmann v Bell Potter Securities Ltd [2008] SAIRC 3 and Adrad. Each was decided by an Industrial Magistrate.
172 In Armanini a claim against a constitutional corporation was made for a monetary claim under s14 of the FWA. The respondent submitted the Court did not have jurisdiction, relying upon s16 of the WRA. The submission was not accepted. Lieschke IM at [17] said:
“[17] In my view the essential flaw in [the respondent’s counsel’s] submission is that the language of s 16(1) makes it clear that the WRA excludes the FWA where there is an intention for the WRA to apply. Subsection (1) does not say that the WRA simply excludes all of the nominated types of State or Territory laws. The provision is not expressed in blanket terms. The WRA assumes and accepts the ongoing existence of the Industrial Relations Court of South Australia, as for example by defining it to be an eligible court in s 717 for the purposes of claims under s 720 and s 663. It is also significant in my view that the WRA does not deal in any way with enforcement of monetary claims arising from a common law contract of employment where no instrument applies and the claim is not based upon enforcement of a minimum statutory condition. In my view the WRA does not intend to apply to such monetary claims and does not accordingly exclude the jurisdiction of this Court to hear and determine such claims. Accordingly I reject the first basis of Transfield’s jurisdictional objection.”

173 In Jaffer, Hardy IM followed Armanini and held the court had jurisdiction “with respect to common law contracts of employment” ([20]). The Industrial Magistrate said that s16 of the WRA was “really quite limited” ([15]). The Industrial Magistrate said of s16, “with certain exclusions that it renders inapplicable certain legislation or instruments of a legislative character but to my mind leaves untouched any other laws relating to employment including those forming part of the common law regulating the contract of employment” ([15]).
174 In Dohrmann, Ardlie IM also came to the conclusion that s16 of the WRA did not exclude the operation of s14 of the FWA ([14]); citing Armanini and Jaffer in support. The Industrial Magistrate in part relied on the WRA not excluding the Industrial Relations Court of South Australia from having a role in respect of rights conferred or enforced under the WRA. (See s717, s720 and s663 of the WRA referred to in Armanini at [17]). The Industrial Magistrate also cited Shergold v Tanner (2002) 209 CLR 126 at 136 as authority for the proposition that “a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably” ([17]). The Industrial Magistrate also cited Pearce and Geddes at [5.33] in support of the proposition that “jurisdiction cannot be ousted by a subsequent Act of Parliament except by express words or necessary implication” [18].
175 The Industrial Magistrate then quoted from the reasons of Dixon J in Victoria v Commonwealth (1937) 58 CLR 618 (Kakariki/Shipwreaks Case) at 630 about tests of inconsistency for the purpose of s109 of the Constitution. The Industrial Magistrate concluded at [21] that the scope and operation of s14 of the FWA, in the context of the matter before the court, was compatible with the WRA.
176 In Adrad, there was a similar claim under s14 of the FWA. Hardy IM referred to Armanini with approval although he said that in that case there had been no reference to Tristar. The Industrial Magistrate then said however that Tristar did not lead to any different conclusion. At [16], Hardy IM said that s16 of the WRA “may be said to mark out the field of relations between a constitutional corporation as employer and individuals in their capacity of [sic] employees”. He then said that the “majority in Tristar accepted the proposition that the Commonwealth could identify rights and obligations as the subject of legislation but provide detailed rules with respect to them at a later point”.
177 Hardy IM then said at [34]:
“It was necessary first to determine the field that was occupied by the WRA. The Act was not about defeating the ability of employers and employees who sought to enforce existing rights and conditions.”

178 Each of these cases is supportive of the applicant’s argument. It should be borne in mind however that at least to some extent they rely upon the particular position of the Industrial Relations Court of South Australia under the WRA. The Commission occupies no similar position. Also, whilst what is said in these decisions about the WRA not saying anything about the enforcement of common law contractual rights is correct, with respect, the reasoning in at least some of the cases does not adequately take into account the breadth of s16(1) of the WRA. It provides for an intention to apply to the exclusion of State or Territory industrial relations laws “so far as they would otherwise apply in relation to an employee or employer”. In my opinion this language undermines at least part of the reasoning of Lieschke IM in Armanini at [17] and Hardy IM in Jaffer at [15] and [16].
179 It is only in Dohrmann that reliance is placed upon Shergold and the discussion of that decision and others of a like nature in Pearce and Geddes at [5.33]. There is some difficulty in applying Shergold to the present situation. Shergold was about the impact upon the jurisdiction of the Federal Court of a later Commonwealth statute, the Freedom of Information Act 1982 (Cth). It did not involve the effect of a law of the Commonwealth upon the conferring of jurisdiction by a law of the State, and s109 of the Constitution. In Pearce and Geddes at [5.33] there is however reference to cases where rights of action in State Supreme Courts could be effected by Commonwealth legislation. These are Re Totalisator Administration Board of Queensland (1989) 1 Qd R 215 and Dahlia Mining Company Ltd v Collector of Customs (1989) 17 NSWLR 688. Both of these cases were cited by Smith J in the Supreme Court of Victoria decision of Aufgang v Kozminsky Nominees Pty Ltd [2008] VSC 27. There, it was held that the plaintiff employee could pursue a claim based upon the minimum terms and conditions of employment provided in (the then applicable) WRA in the Supreme Court of Victoria even though it was not an “eligible court” as then relevantly defined in the WRA. At [43] Smith J, citing the cases just referred to and also Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 at 134, said that Commonwealth legislation is presumed not to limit the jurisdiction of the Supreme Court, and the defendant was unable to rebut that presumption.
180 The case is not however on all fours with the present situation as State Supreme Courts occupy a special position under the Constitution. Accordingly I do not think that the line of cases and the presumption referred to in Dohrmann is significant in the present context.

(iv) Tristar
181 In Tristar the applicants applied in the Federal Court for orders in the nature of prohibition or injunctions against the Industrial Relations Commission of New South Wales from continuing with an inquiry pursuant to a reference by the New South Wales Minister for Industrial Relations, under s146(1)(d) of the Industrial Relations Act 1996 (NSW). Pursuant to a direction from the Chief Justice of the Federal Court, a Full Court sat to determine the application. The three members of the Court (Kiefel, Gyles and Buchanan JJ) wrote separate reasons for judgment but agreed that the application should succeed. At [10] Kiefel J said that:
“[10] Section 16 may 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 subsections (2) and (3). …”

182 Her Honour said this was “consistent with the view that s51(xx) of the Constitution at least extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations …” ([10]).
183 At [14]-[16] Kiefel J said:
“[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. As the majority went on to observe in [the Work Choices Case] at [369], the Commonwealth chose to exclude State law ‘in respect of the relations of employees and employers’ as the latter were defined. …
[15] It is the Commonwealth Act to which regard must be had in determining inconsistency. … 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. …”

184 It is appropriate to next consider the reasons for decision of Buchanan J as Gyles J at [18] said he agreed with the substance of the reasons of each of Kiefel and Buchanan JJ, even though there are some differences in their Honours’ reasoning.
185 Buchanan J at [39] said the first enquiry to be made was that of the field occupied by the WRA. His Honour then said, any “attempt to enter the field under a State law is invalid”. Unlike Kiefel J however his Honour did not place reliance upon what the majority said in the Work Choices Case at [369]. Buchanan J focussed upon the words “so far as they would otherwise apply in relation to an employee or employer”, in s16(1) of the WRA (the Work Choices Case at [359]).
186 Buchanan J then said at [45] and [47]:
“[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.” (emphasis in original)

187 Gyles J, as mentioned, said he agreed with the substance of the reasons of Kiefel and Buchanan JJ, but also provided supplementary reasons of his own. His Honour also followed the approach of identifying the field occupied by the WRA. This was that s16 of the WRA contained “an express Commonwealth legislative intention to make the Commonwealth Act ‘exclusive and exhaustive’ within its field”. (At [19] and citing Wenn at 109). At [21] Gyles J said that once the objects of the Industrial Relations Act 1996 (NSW) and the WRA were compared, it was “obvious that the NSW Act invades the field …”. At [21]-[22] his Honour said:-
“[21] … The Commonwealth Act regulates the conduct of constitutional corporations, at least in relation to their actual or potential employees, both by what is prescribed and what is not. The NSW Act sets out to regulate the conduct of all employers in relation to their actual or potential employees, including constitutional corporations. That is not permitted by s 109 of the Constitution. The NSW Act must yield. In order to come to that conclusion it is not necessary to descend to examining the impact of particular provisions in each Act to detect inconsistency.
[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 …”

188 In my opinion the breadth of the comment of Gyles J at [22] cannot apply to the Act. From s16(2)(c) and s16(3)(c) of the WRA, s16(1)(a) does not apply to a law of a State or Territory so far as the law deals with “occupational health and safety”. Within this exception is the Occupational Safety and Health Act 1984 (WA) (the OHSA). The OHSA provides the Commission, sitting as the Occupational Safety and Health Tribunal, with jurisdiction to hear and determine the matters specified therein. Section 51I of the OSHA provides that, in exercising its jurisdiction, certain sections of the Act apply with necessary modification. Accordingly it cannot be said of the Act that the effect of s16 of the WRA is that it does not apply to “constitutional corporations”.
189 As mentioned, are differences in the reasoning between Kiefel J and Buchanan J. Kiefel J concluded at [14] and [16] that the field was “in respect of the relations of employees and employers”; and the provisions of the NSW Act which concerned the relationship between employers and employees intruded into the reserved field. Buchanan J at [45] said the Commonwealth had covered “the whole field of legislative activity ‘in relation to an employer or employee’”, where the employer is a constitutional corporation; other than for the s16(2) and (3) exceptions (emphasis in original). If there is any difference between the expressions used by Kiefel and Buchanan JJ it probably has limited practical effect.

(v) Brolrik
190 In Brolrik the Full Bench of the Industrial Relations Commission of New South Wales (Wright P, Walton VP and Boland J) considered the reasons of the Full Court in Tristar. The context was a claim for relief from victimisation pursuant to s210 and s213 of the Industrial Relations Act 1996 (NSW). The respondent filed a notice of motion which contended the Commission did not have jurisdiction to hear the application because of s16 of the WRA. The notice of motion was dismissed as s210 and s213 were characterised as laws dealing with occupational health and safety and therefore within the legislative exceptions to the operation of s16(1), contained in s16(2)(c) and 16(3)(c) of the WRA.
191 At [26] the Full Bench quoted from the reasons of Kiefel J at [8] and [10]. The Commission then said that the judgments of Gyles and Buchanan JJ were broader “but it is unlikely that they intended to establish a broader principle than that stated by Kiefel J (or if they did, that it would not be a correct construction of the WR Act and the operation of s 109 of the Constitution)”. The Full Bench did not, on my reading of its reasons, explain why this was so. The Full Bench also said that “Buchanan J seemed to limit the field of operation of s16(1) …” ([27]). This was also not explained, especially given the broad passage at [45] of the reasons of Buchanan J was then quoted. The Full Bench quoted Buchanan J at [46] and Gyles J at [22] of Tristar and concluded, unsurprisingly that their Honours did not intend to refer to the instances in which s16(2) and (3) of the WRA applied.
192 Although, as counsel for the present applicant said, the Full Bench seemed to endorse the reasons of Kiefel J in Tristar, in my respectful opinion the lack of reasoning on the points I have mentioned, together with the different context has the effect that I do not, with respect, place much weight on the authority.

(vi) Legislative Purpose
193 As I have set out, both counsel made submissions about the purpose which would or would not be served by the construction they urged of the coverage of s16(1)(a) of the WRA. This is in accordance with the approach mandated by s15AA of the Acts Interpretation Act. I have earlier set out the principal object of the WRA and some of the methods by which it is to be achieved. I acknowledge the respondent’s submission about a major purpose of the amendments to the WRA being the creation, as far as possible, of a national industrial relations system. The submission is tempered however by counsel being unable to provide a cogent reason why the removal of the s29(1)(b)(ii) jurisdiction from the Commission would enhance that purpose. The respondent accepted that if the jurisdiction of the Commission is excluded then the applicant may pursue her claim in another civil court in Western Australia. The outcome would be that nothing is moved centrally towards a federal system, there is simply sideways movement within the State.
194 The WRA does not provide a system for the recovery of common law contractual benefits and does not purport to interfere with the rights of parties to create common law contracts which are not in conflict with the minimum standards set by the WRA or other applicable legislation and industrial instruments. Indeed as pointed out by counsel for the applicant, the ready enforcement of common law contractual claims at the Commission can be seen as being consistent with the methods for achieving the principal object set out in s3(d) and s3(e) of the WRA. On the other hand the amendments to the WRA sought to sideline the industrial relations regime of the State from application to constitutional corporations. Section 29(1)(b)(ii) claims are part of and within this State’s industrial relations regime. They give the Commission, as a specialised industrial rather than ordinary civil court, the authority to decide claims of denied benefits under contracts of employment.

(vii) My Opinion and Conclusions about the Fourth Issue
195 There are, as counsel for the applicant has emphasised, some signposts which suggest s16(1)(a) of the WRA does not extend as far as the exclusion of the jurisdiction of the Commission under s29(1)(b)(ii) of the Act. These are:
(a) The exclusion of the jurisdiction is not significantly supported by the methods for achieving the principal object contained in s3 of the WRA. I accept the submission of counsel for the applicant, which to repeat, is that saying to somebody in the applicant’s position, in effect, “you can sue for this anywhere you like but not in the Commission” (T27), does not significantly enhance a simplified national system of workplace relations. This is because the employee’s claim simply moves from one State court to another.
(b) The Commission having jurisdiction over a common law contract of employment is consistent with the methods set out in s(3)(d) and s(3)(e) of the WRA.
(c) Whilst the Explanatory Memorandum is in my opinion somewhat equivocal overall, the Second Reading Speech of Senator Abetz quoted above uses the phraseology “will not be subject to regulation by state employment laws …”. Further, also, the Explanatory Statement to the WRR gives a detailed set of examples of the nature and extent of the s16(1) exclusions, but does not touch upon the type of jurisdiction exercised by the Commission under s29(1)(b)(ii) of the Act.
(d) As I have mentioned earlier, I regard the applicant’s submission about the reasons why 2.1.2 of the WRR does not apply to someone in the applicant’s position as having some force.
(e) Moreover I accept the applicant’s submission that consistent with the authorities referred to in Pearce and Geddes at [3.41], the WRR and the Explanatory Statement to the WRR can be used to discern the nature of the scheme of the legislation as a whole and the limits, if any, to s16(1) of the WRA.
196 Despite these points however it is ultimately the words of the WRA which must be applied and provide the surest guide to the legislative intention.
197 The words used in s16(1)(a) of the Act are very broad. The subsection provides that the WRA is intended to apply to the exclusion of a State industrial law, including the Act, in so far as it would otherwise apply in relation to a constitutional corporation employer. The language of the subsection lends itself to the opinion expressed by Buchanan J in Tristar, at [45]; that what is excluded is “anything done by or under a State or Territory industrial law”. His Honour’s reasons are also supported by what the majority said in the Work Choices Case at [359]. To not dissimilar effect, as mentioned above, Kiefel J at [14] quoted the Work Choices Case at [369] and said their Honours had held the field was “in respect of the relations of employees and employers”; and at [16] that the provisions of the NSW Act which concerned the relationship between employers and employees intruded into the reserved field. In my opinion the views of the Full Federal Court about the construction of the field of operation of s16 of the WRA and the impact of the reasons of the majority in the Work Choices Case should be followed.
198 The High Court in Farah Constructions has emphasised at [135] that:
“Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong”. (Footnote omitted).

199 In my opinion it certainly could not be said that the reasons of Kiefel and Buchanan JJ in Tristar are plainly wrong. I prefer the reasoning in Tristar to that of the South Australian cases I have discussed. This is because of the problems with the reasoning I have set out earlier. This includes an inadequate treatment of Tristar in the authority which was decided following it. Additionally in my opinion the reasoning in Tristar pays closer attention to the wording of the relevant sections of the WRA and the reasoning of the majority in the Work Choices Case.
200 Adopting of the expressions of either Kiefel J or Buchanan J in my opinion leads to the conclusion that the jurisdiction of the Commission under s29(b)(ii) of the Act, has, subject to Issue 6, no application with respect to constitutional corporations. That is because in the words of Kiefel J, the jurisdiction is within the Commonwealth field as s29(1)(b)(ii) is a provision which concerns the relationship between an employer and an employee (and does not fit within the exceptions in s16(2) and (3) of the WRA). In turn, this is because the jurisdiction permits an employee to claim entitlements which he or she alleges were denied by their employer under the contract which governed that relationship. Alternatively, following Buchanan J, the s29(1)(b)(ii) jurisdiction of the Commission is within the plain wording of s16(1) (and does not fit within the exceptions in s16(2) and s16(3)).
201 For these reasons in my opinion the answer to Issue 4, subject to the determination of Issue 6, is “yes”.

(viii) Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254
202 The conclusion I have reached is in my opinion supported by the decision of the Industrial Appeal Court in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2). The court, by majority, dismissed an appeal against a decision of the Full Bench which dismissed a finding by Kenner C that the appellant was not a constitutional corporation; and accordingly the Commission had jurisdiction to decide an unfair dismissal claim. Steytler P, with whom Pullin J agreed, said at [12]-[14]:
“12 The source of the Commission's jurisdiction is essentially s 23(1) of the State Act. That section provides that the Commission 'has cognizance of and authority to enquire into and deal with any industrial matter'. The State Act defines an industrial matter as 'any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein … ': s 7(1). Under s 24(1) of the State Act the Commission has jurisdiction to determine, in any proceedings before it, whether any matter to which those proceedings relate is an industrial matter.
13 Section 16 of the Commonwealth Act provides that that Act is intended to apply to the exclusion of a State or Territory industrial law 'so far as [it] would otherwise apply in relation to an employee or employer'. The word 'employee' is defined in s 5(1) of the Commonwealth Act as meaning an individual employed by an employer. The word 'employer' is defined in s 6(1) as meaning 'a constitutional corporation, so far as it employs, or usually employs, an individual … '. A 'constitutional corporation' is one to which s 51(xx) of the Constitution applies: s 4(1) of the Commonwealth Act. Section 4(1) of the Act also provides that the State Act is a State industrial law.
14 The parties agree that, because the Commonwealth Act applies to industrial matters as between constitutional corporations and their employees to the exclusion of the State Act (so far as the State Act would otherwise apply in relation to an employee or employer), the effect of s 109 of the Constitution is that, so far as the State Act purports to give to the Commission jurisdiction to deal with industrial matters concerning relations between a constitutional corporation and its employees, or one of them, it is invalid. That, in turn, means that, if the Full Bench was wrong to find that the appellant was not a trading corporation, then its decision that the Commission had jurisdiction to embark upon the appellant's claim was also wrong 'in that the matter the subject of the decision is not on [sic] an industrial matter'. This would be so because the word 'employer(s)' in s 7(1) does not extend to a constitutional corporation and the word 'employee(s)' does not extend to a person employed by a constitutional corporation.”

203 As that appeal involved an unfair dismissal claim, not all of the arguments relevant to the present questions were material. For example the Act provides for statutory remedies where a finding of an unfair dismissal is made by the Commission. That type of claim does not just involve the enforcement of a common law contract. Nevertheless the reasoning which underpins the conclusion expressed by Steytler P is in my opinion consistent with what was decided in Tristar and that which I have endeavoured to apply. There is certainly nothing inconsistent between the decision I have reached and what Steytler P said.

(6) The Sixth Issue – If Section 16(1) of the WRA excludes the Section 29(1)(b)(ii) Jurisdiction of the Commission for Constitutional Corporation Employers, is this Contrary to Section 106 of the Constitution?
204 It is again convenient to first set out the applicant’s submissions on this issue.

(a) The Applicant’s Submissions
205 Counsel submitted that if the position of the respondent was accepted about the coverage of s16(1) of the WRA “the constitutional issue arises whether the Federal Parliament has power to directly prevent a court of the State from exercising such jurisdiction”. It was submitted the Work Choices Case decided the Commonwealth could decide what law is to apply in an area of its legislative competence and exclude a state law but this was different from the Parliament saying the law is unaffected but a State court cannot hear and determine “that law”. It was submitted the Commonwealth did not have that power.
206 It was pointed out that s77 of the Constitution provides the Commonwealth with power to make laws defining the jurisdiction of federal courts, but does not mention State courts other than investing “any court of a State with federal jurisdiction” (s77(iii)). In particular it does not mention the divesting of jurisdiction.
207 Reliance was placed upon Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 547 and 574-575, where two members of the High Court held, and three suggested that it was beyond the power of the Commonwealth to prohibit the exercise of the ordinary jurisdiction vested in State courts, by State law, by reason of s106 of the Constitution. The applicant submitted the Work Choices Case did not disturb the law as set out in Re Tracey. It was argued Re Tracey applied, as deciding a case referred under s29(1)(b)(ii) of the Act was not the exercise of arbitral or conciliatory powers but “unambiguously a judicial function”.

(b) The Respondent’s Submissions
208 The respondent’s counsel submitted the argument had effectively been dealt with and rejected in the Work Choices Case at [389] in answer to South Australia’s challenge to s117 of the WRA.

(c) My Analysis and Opinion About the Sixth Issue
209 I do not accept the respondent’s submission that the reasons of the majority in the Work Choices Case mean this argument must be rejected. This is because:
(a) At [389] the majority said that it did not accept the submissions of South Australia because it was not the case that in its standard operation s117 of the WRA would permit orders preventing a State from enforcing “one of its own valid laws”. This was, because of s16(1)(a) of the WRA, the law would not in any event be valid to the extent of any inconsistency with s16(1)(a).
(b) At [389] the majority specifically did not consider what the position would be if a court was prescribed for the purposes of paragraph (c) of the definition of “State industrial authority”.
(c) For these reasons their Honours said that s117 gave no power to make orders directed to the “core of State judicial systems”. The reasoning in Re Tracey was said not to be applicable to the present case. The majority did not therefore review that decision as the Commonwealth submitted it should do.
(d) At [390] the majority said the submission of South Australia was lacking because there was no close examination of the laws of any of the States with a view to deciding what was and what was not part of its Constitution.
(e) Although the majority at [390] may have doubted whether laws regulating State bodies to deal with industrial disputes or factories were part of the Constitution of the relevant State, their Honours did not decide this point.
210 Accordingly I accept the submission of counsel for the applicant that the Work Choices Case left the authority of Re Tracey intact and did not consider its application to the possible breadth of coverage in s16(1)(a) of the Act. It is thus necessary to see what Re Tracey relevantly decided.
211 Re Tracey was about the constitutionality of sections of the Defence Force Discipline Act 1982 (Cth) (The Forces Discipline Act). The Forces Discipline Act gave a service tribunal jurisdiction to try “service offences” allegedly committed by a member of the defence forces. The meaning of a “service offence” was linked to offences in the Australian Capital Territory which were within the definition of a “Territory offence” in s3(1) of The Forces Discipline Act. Section 190(3) provided that where a service tribunal had “taken a service offence into consideration in relation to a convicted person, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence”. Section 190(5) provided that where “a person has been acquitted or convicted of a service offence, that person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence”. A “civil court” was defined under s3(1) to mean a federal court or a court of a State or Territory and was used to refer to a civilian as opposed to a military court. Five justices of the High Court decided that s190(3) and (5) were beyond the defence power contained in s51(vi) of the Constitution. In their joint reasons, Mason CJ, Wilson and Dawson JJ said at 547:
“[Section 190] seeks to protect against double jeopardy and proceeds upon the assumption that statutory provision is necessary to achieve that objective. The method chosen in the provisions under challenge is to exempt persons from the operation of laws, for the most part State laws, which apply to those persons, by denying jurisdiction to the civil courts, for the most part State courts, to try cases brought under those laws. For our part we doubt whether provisions of that kind, which strike at the judicial power of the States, could ever be regarded as within the legislative capacity of the Commonwealth having regard to s106 of the Constitution, but it is sufficient to say that they clearly exceed the power to make laws with respect to the defence of the Commonwealth. No doubt if the imposition of criminal liability upon defence members or defence civilians in a particular instance or context were capable of interference with the defence of the Commonwealth, the Parliament would have power under s 51(vi) to provide for the specific situation by enacting a law which did not involve the ouster of jurisdiction from the courts of the States. Such a law would prevail under s 109 of the Constitution: Pirrie v McFarlane (1925) 36 CLR 170 at 184, 214 and 299.”

212 In their joint reasons, Brennan and Toohey JJ said at 574-575:
“… provisions which purport to prohibit the exercise of the ordinary criminal jurisdiction vested in State courts by State law can find no support in the Constitution. State courts are an essential branch of the government of a State and the continuance of State Constitutions by s 106 of the Constitution precludes a law of the Commonwealth from prohibiting State courts from exercising their functions. It is a function of State courts to exercise jurisdiction in matters arising under State law. Although, by force of s109, a law of the Commonwealth prevails over an inconsistent State law, s190(3) and (5) do not operate in that way. These sub-sections do not affect the substantive law; they purport to prohibit its enforcement. As these sub-sections cannot be read down so as to restrict their application to federal courts, they are invalid.”

213 Accordingly Brennan and Toohey JJ decided the constitutionality point against the Commonwealth because the laws purported to prohibit the enforcement of the law without affecting its substance.
214 Following Re Tracey, in Re Nolan; Ex parte Young (1991) 172 CLR 460, Gaudron J at 494-495 recognised that the case then before the court had to be determined upon the basis that The Forces Discipline Act “does not in any way affect the operation of the general criminal law or the exercise by the ordinary courts of their criminal jurisdiction”. Gaudron J had been in the minority in Re Tracey, but obviously then accepted the binding opinion of the majority.
215 In Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 229 six justices of the High Court in their joint reasons said about Re Tracey (footnote omitted):
“It was also recognised in Re Tracey; Ex parte Ryan that State courts are an essential branch of the government of a State and that their continuance by s106 of the Constitution precludes an exercise of Commonwealth legislative power prohibiting them from exercising their functions.”

216 Kirby J, although in the minority, in Yougarla v Western Australia (2001) 207 CLR 344 at [95] commented upon Re Tracey in the following way (footnote omitted):
“[95] In Re Tracey; Ex parte Ryan it was held, unsurprisingly, that State courts are part of the government of a State and are protected from federal regulation and control by s106. As a matter of principle, it is obviously undesirable that the words of s106 should be given a narrow construction. To the extent that this is done, it would detract from the constitutional status accorded, in particular, to State courts and most especially such courts other than Supreme Courts (which are specifically mentioned elsewhere in the federal Constitution).”

217 The approach taken by the High Court in Re Tracey and the other cases I have cited is consistent with the way the High Court has decided that although the Commonwealth may invest State courts with federal jurisdiction under s77(iii) of the Constitution they must otherwise “take them as they find them” ([390]). (See Leeth v The Commonwealth (1991) 174 CLR 455 per Mason CJ, Dawson and McHugh JJ at 468-469; Le Mesurier v Connor (1929) 42 CLR 481 per Knox CJ, Rich and Dixon JJ at 495-496 and Apla Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322 per Gummow J at [232]).
218 I also note that in Re Tracey and the other authorities which I have cited, the court did not find it necessary to examine, as discussed in the obiter reasons of the majority in the Work Choices Case, whether a State court was part of the “core judicial system” of the State for s106 to be engaged or to undertake a “close examination” of the laws of the State “with a view to deciding which are and which are not, part of its Constitution”. The reasons in Re Tracey, supported by the reasons of six justices in Re AEU, do not provide that such an analysis is necessary. Until the High Court says otherwise in my opinion these decisions must be followed.
219 Having said that however I do not think that s106 of the Constitution or the application of Re Tracey renders s16(1) of the WRA invalid to the extent that it excludes the jurisdiction of the Commission under s29(1)(b)(ii) and s23(1) of the Act. This is because I think it is in error to look at the effect of the WRA on the Commission’s denied contractual benefits jurisdiction in isolation. It is part of a legislative package which marks out the field of the relationships between constitutional corporation employers and employees. The legislation contained in the amended WRA, unlike the impugned sections in Re Tracey, does change the substantive law of Western Australia. It does not simply remove the jurisdiction of the Commission, as one of the civil courts of Western Australia. It affects the whole of the industrial relations regime of the State, removing from it any coverage over the relationships between constitutional corporation employers and employees.
220 As a result I do not think that the present case is within the decision of Re Tracey and those decisions which have followed it. Accordingly the applicant’s submissions on Issue 6 are not accepted and the answer to the question there posed is “no”.

(d) The Reasoning of Kenner C
221 Kenner C in his reasons decides that s106 is not engaged because s29(1)(b)(ii) of the Act enters the field of the Commonwealth legislation and so is not valid because of s109 of the Constitution. This is said to be based upon an application of the reasons of Gummow and Callinan JJ in Truong v The Queen (2004) 223 CLR 122 at [105]. With respect however I do not think their Honours’ reasons are presently apposite. What their Honours said was:
“In Re Tracey; Ex parte Ryan [(1989) 166 CLR 518 at 547], Mason CJ, Wilson and Dawson JJ explained that a federal law which denies the imposition of criminal liability, otherwise justiciable in the non-federal jurisdiction of the courts of a State, ‘upon defence members or defence civilians’ might, depending upon its terms, be supported by s 51(vi) and (xxxix) of the Constitution. Such a law would prevail, by operation of s 109, over relevant State laws founding the jurisdiction of the State courts. In that way there would be effective ‘interference’ with the exercise by the State courts of their general criminal jurisdiction. However, their Honours held that the federal law in question in Tracey was not supported by s 51 of the Constitution and so s 109 of the Constitution was not engaged.”

222 In the cited passage of the reasons of Mason CJ, Wilson and Dawson JJ at 547 in Re Tracey, which is quoted above, their Honours described the possibility of the enactment of a law “which did not involve the ouster of jurisdiction from the courts of the States”.  In my opinion the present situation is not within the description of their Honours nor what Gummow and Callinan JJ said in Truong.  Gummow and Callinan JJ described a federal law that denies the imposition of liability.  That is not what the WRA purports to do.  It does not deny the liability of a corporation.  Instead it enacts, in part, that the liability cannot be enforced in the Commission.

(7) The Seventh Issue – If the Answer to Issue (6) is Yes, is there a Construction of Section 16(1) of the WRA which is Constitutional? - Submissions, Analysis and Opinion
223 This issue does not arise for determination as the answer to Issue 6 is not “yes”.

Answers to Questions
224 For the reasons set out above in my opinion the referred questions of law should be answered:
1. Yes
2. No

Minute of Orders
225 In my opinion a minute should be published as follows:
1. Question 2 of the questions of law referred to the Full Bench is amended so that “regulation 1.2(2)”, is deleted and “Chapter 2, regulation 1.2(2)” is inserted in its place.
2. (a) With respect to question 1 - Does s16 of the WRA exclude the jurisdiction of the Industrial Relations Commission of Western Australia to enquire into and deal with a claim referred to it under s29(1)(b)(ii) by an employee or former employee of a constitutional corporation, subject to any applicable exceptions contained in the Workplace Relations Act 2006 (Cth) (the WRA), the Workplace Relations Regulations 1996 (Cth) (the Regulations) and/or any other legislation or subsidiary legislation validly enacted or made by the Commonwealth of Australia;
(b) The answer is Yes.
3. (a) With respect to question 2 as amended - If the answer to (1) is yes, does Chapter 2, regulation  1.2(2) of the Regulations preserve the jurisdiction of the Industrial Relations Commission of Western Australia to enquire into and deal with a claim referred to it under s29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) by an employee or former employee of a constitutional corporation in respect of an act or omission or a series of acts or omissions, some or all of which occurred prior to 27 March 2006;
(b) The answer is No.

226 Any submissions about the terms of the order should be made in writing within seven days of the publication of the minute.

Assistance of Counsel for the Applicant
227 I would like to record my sincere thanks to counsel for the applicant and the Bar Association of Western Australia for its assistance in this proceeding. As the applicant had been unrepresented, my associate made contact with Mr Colvin SC, the President of the Bar Association of Western Australia to see if a member would be prepared to act for the applicant pro bono. Mr Colvin agreed to do so. In response to his request, the applicant’s counsel decided to so represent the applicant. This was within the very best traditions of the Bar and the Full Bench is indebted to the careful, considered and cogent submissions he has made.

BEECH CC:
228 The background to this matter is set out in the reasons of his Honour the Acting President. In essence, the issue before the Full Bench is whether the Commission's jurisdiction under s.23(1) of the Act to enquire into and deal with a claim by a former employee of an employer which is a constitutional corporation is removed by s.16(1) of the Workplace Relations Act 1996 (Cth) (WRA).

The Nature of the Claim
229 I turn firstly to consider the claim before the Commission. The claim is referred under s.29(1)(b)(ii) of the Act. The jurisdiction of the Commission to deal with the claim once it is referred is found within s.23(1) of the Act. This is as follows:
“23(1) Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.”

230 A matter relating to the refusal or failure of an employer to allow an employee a benefit under his contract of employment, as is the case here, is an industrial matter: Matthews v. Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 84 WAIG 2152 per Steytler J at [13].
231 In Cool or Cosy, the Industrial Appeal Court dealt with whether the Commission is empowered to award monetary compensation in lieu of a denied contractual benefit. This issue arises because the “benefit” is the contractual entitlement itself and damages is “a common law remedy which is not based on any doctrine relating to implied contractual terms or their enforcement” (ibid) at [22]. Steytler J concluded that the contractual benefit which was denied by the employer was that which was provided for by the contract of employment itself and that the award of compensation is the means by which the Commission dealt with the industrial matter referred to it under s.29(1)(b)(ii), utilising the broad power given it under s.23(1) read, if necessary, with s.26(2) thereof.
232 Pullin J at [49] concluded that the authority or jurisdiction of the Commission to grant remedies is to be found in s.23, and in his Honour's opinion this confers jurisdiction on the Commission to order damages for non-allowance of a benefit if the non-allowance amounts to a breach of contract.
233 Pullin J cited with approval the comments of Anderson J in Hotcopper Australia when Anderson J observed that how the dispute before the Commission which is referred under s.29(1)(b)(ii) is dealt with will be for the Commission to decide within the powers and discretions conferred on it by those sections of the Act which regulate the manner in which the Commission may exercise its jurisdiction in any particular case. Anderson J was inclined to think that this would include making a monetary order for compensation - that is, a damages award - in an appropriate case as long as its purpose is to do no more than is necessary to redress the matter by resolving the conflict in relation to the industrial matter and as long as its effect is so limited.
234 In Cool or Cosy EM Heenan J at [60] stated that the amount to which the claimant is entitled, or the benefit to which he is entitled under his contract of employment, are contractual and, therefore, common law claims which exist independently of the provisions of the Act and which could, if necessary, be pursued in any court of appropriate general civil jurisdiction. EM Heenan J held at [73] that the Commission is empowered to make a monetary order, in the nature of damages, to deal with the industrial matter before, it as it is empowered to do under s.23(1), notwithstanding that the relief granted is to award damages for breach of the employment contract arising from the employer's dismissal without notice or with inadequate notice.
235 It was submitted on behalf of the applicant that the Act continues to apply in this matter, and the Commission's jurisdiction is not removed by the operation of s.16(1) WRA, because a contractual benefit claim before the Commission arises under the common law and the application made to the Commission is to enforce the common law. The Commission is certainly enforcing a common law entitlement: the Commission, in enquiring into and dealing with a contractual benefit claim under s.23(1) is acting judicially and the remedies available to it include making a monetary order for compensation - that is, a damages award. The Commission is a court of record (see s.12 of the Act) and it has been held to be a court for the purposes of the Corporations Law when it is exercising jurisdiction under s.23 on a claim of unfair dismissal (Helm v. Hansley Holdings Pty Ltd (in Liq) [1999] WASCA 71; (1999) 79 WAIG 1860); there is no reason to reach a different conclusion about the function of the Commission when it is exercising jurisdiction under s.23(1) to enquire into and deal with a contractual benefit claim.
236 Nevertheless, the jurisdiction of the Commission to do so depends not upon the debts being due at common law, but that they are an industrial matter. Smith SC reached the same conclusion in Smith v Albany Esplanade Pty Ltd t/a The Esplanade Hotel (2007) 87 WAIG 509 at [129] to [136] and she was, with respect, correct to do so.

Section 16(1) WRA
237 Having characterised the exercise of the Commission's jurisdiction under s.23(1) upon a claim being made to it by an employee claiming denial of a benefit under a contract of employment, I turn to consider the effect upon the exercise of that jurisdiction of s.16(1) of the WRA.
238 Section 16(1), relevantly, states:
“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: …”

239 It is agreed that none of the qualifications or exceptions contained within s.16 apply to the circumstances of this case.
240 A State or Territory industrial law is defined in s.4 WRA to include the Act. The exclusion of the Act by s.16(1) is limited, namely it is limited so far as it would otherwise apply in relation to an employee or employer as defined in the WRA: New South Wales & Ors v. The Commonwealth (2006) 229 CLR 1; (2006) 156 IR 1 at [358].
241 Accordingly, the issue before the Commission may be narrowed further by considering whether or not the matter before the Commission is a matter “in relation to” an “employee” as defined in s.5(1) WRA or to an “employer” as defined in s.6(1) WRA.

(a) “In relation to…”
242 I turn first to consider the words “in relation to”. These are words of wide import. In this matter, the Commission acting under s.23(1) is enquiring into, and dealing with, a claim by the applicant that she has not been allowed by her employer a benefit to which she is entitled under her contract of employment. In other words, the claim before the Commission arises out of the contract of employment which had existed between the applicant and the respondent. It is a claim “in relation to” them in their capacities as, respectively, employee and employer. On the face of it, the words “in relation to” as they are used in s.16(1) embrace the matter before the Commission.
243 Their use in s.16(1) WRA was considered by the Federal Court of Australia in Tristar Steering and Suspension Limited v. Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104; 161 IR 469. While the decision in that matter is not binding on this Commission, it is certainly persuasive. In that matter an application was made to restrain the Industrial Relations Commission of New South Wales from continuing with an inquiry being conducted by it pursuant to s.146(1)(b) of the Industrial Relations Act 1996 (NSW). The inquiry had been referred to it by the NSW Minister for Industrial Relations and involved Tristar Steering and Suspension Ltd which was a constitutional corporation within the meaning of the WRA.
244 The three judges published separate reasons for the conclusion they reached that the Industrial Relations Commission of New South Wales does not have jurisdiction or power under the NSW Act to inquire into and report on the matters referred to it.
245 In her reasons, her Honour Kiefel J said that s.16 may 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 subsections (2) and (3).
246 At [15] her Honour noted that it is the Commonwealth Act to which regard must be had in determining inconsistency which will exist where there are two sets of provisions on the same subject. Her Honour continued:
“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.”

247 It is relevant, in my view to note that the submission before the Federal Court from the NSW Minister included that the field marked out by s.16(1) 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 (per Kiefel J at [12]). This was not accepted, with Kiefel J stating:
“[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. As the majority went on to observe in New South Wales v. Commonwealth (2006) 231 ALR 1 at [369], the Commonwealth chose to exclude State law ‘in respect of the relations of employees and employers’ as the latter were defined. It may also be observed that one of the objects of the WRA is to influence or affect them by less direct means.”

248 Kiefel J concluded at [16] that the NSW Act intruded into the field reserved by s.16 WRA 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 NSW Commission.
249 Gyles J stated that he agreed with the substance of the reasons of each of the other judges. In his Honour's view, the question as to whether s.146(1)(d) of the NSW Act enters the field occupied by the WRA is not to be judged by concentrating upon that subsection alone, or by reference to the particular inquiry being conducted pursuant to it. Rather, once the objects of the NSW Act are compared with the objects set out in s.3 of the WRA it is obvious that the NSW Act invades the field of the Commonwealth Act so far as constitutional corporations are concerned. That is not permitted by s.109 of the Constitution.
250 His Honour stated:
“[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.”

251 Buchanan J at [36] noted that the words “apply in relation to” in s.16(1) are broader than the term “apply to”. He held that the words are not confined to legal affectation but are a description of the field of operation of the State or Territory law. It is not intended that the State or Territory laws as defined operate in the same field as the WRA unless permitted by ss.16(2), (3) or (4).
252 At [45] his Honour held:
“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 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’ 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 regulations of specific rights and obligations but anything done by or under a State or Territory industrial law.”

253 The Court held that the functions of the Industrial Relations Commission of New South Wales under s.146 of the NSW Act, did not validly extend in relation to constitutional corporations or their employees to, amongst other things, hearing and determining other industrial matters concerning them.
254 I consider that the decisions of each of the judges, with respect, reinforces the conclusion that the matter before this Commission is a claim “in relation to” an employee or a claim in relation to an employer that is a constitutional corporation.
255 The rejection by Kiefel J of the submission that the field marked out by the WRA was more correctly described as that of the 'rights and obligations' arising out of the relationship between a s.5(1) employee and a s.6(1) employer considerably lessens the force of any suggestion that a claim to enforce a common law right in the Commission is not part of the rights and obligations of the applicant and the respondent which are covered by the WRA and therefore the Commission is able to deal with the claim.
256 If the approach of Gyles J is to be followed, I note that the objects in s.6 of the Act include –
“(af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;
…
(b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes;
(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;
(d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes; …”

257 A comparison of those objects of the Act and those of the WRA referred to in Tristar would, in my view, lead to the same conclusion which his Honour reached: that the Act invades the field of the Commonwealth Act so far as constitutional corporations are concerned.
258 The approach of his Honour Buchanan J of seeing the field of the WRA as the whole field of legislative activity in relation to an employee or employer where the employer is an entity identified by s.6(1) of the WRA, including a constitutional corporation, leads to a similar conclusion. This is because the jurisdiction of the Commission when enforcing a contractual benefit claim is “legislative activity” pursuant to the Act.
259 The applicant referred to a number of decisions of the Industrial Relations Court of SA (see Dohrmann & Ors v. Bell Potter Securities Limited [2008] SAIRC 3 and the cases cited therein) which, for slightly differing reasons in each case, found that s.16(1) WRA does not remove the jurisdiction of that court to hear and determine claims arising from common law contracts of employment. In my view, the correctness of those decisions turns upon the provisions of s.14 of the Fair Work Act 1994 (SA) which provides a jurisdiction to that Court to hear and determine monetary claims due under the Commonwealth Act, and also upon s.717 WRA which stipulates a number of federal and State courts which are eligible courts, one of which is the Industrial Relations Court of SA, and they are for that reason distinguishable.

(b) “Ex-employee" or "former employer”?
260 The applicant submits however, that the reasoning in Tristar is not applicable to the matter before the Commission for the simple reason that at the time the application was made under the Act, the applicant was not “an employee” as defined in s.5(1) WRA and, correspondingly, that the respondent was not at that time an “employer” as defined under s.6(1) WRA.
261 It is factually correct to say that at the time the applicant in this matter made the application, she had ceased to be employed by the respondent. She was an ex-employee of the respondent. Correspondingly, at the time the application was made to the Commission, the respondent was not an employer in the current sense; it was the applicant's former employer.
262 The applicant's submission emphasises that the definitions of “employee” and “employer” respectively in the WRA speak in the present tense. That is, they refer to an employee who is currently an employee and an employer who is currently an employer. Thus, the provisions of s.643 WRA which provide relief in respect of the termination of employment speak not of an “employee” but of an “employee whose employment has been terminated by the employer”. If the definition of employee in s.5(1) was intended to encompass an ex-employee (i.e. an employee whose employment has been terminated by an employer), then the section would only need to provide a right to seek relief by an employee as defined.
263 In the context of the Act, this issue was fully considered by the Industrial Appeal Court in Coles Myer Ltd trading as Coles Supermarkets v. Coppin and Ors (1993) 11 WAR 20; (1993) 73 WAIG 1754. In that matter, Mr Coppin and others had been employed by Coles Myer Ltd and were retrenched. They brought an application in the Commission claiming that they were underpaid redundancy benefits under their contract of employment. They did not seek reinstatement and the application was purportedly made as a claim of denied contractual benefits under the 1993 equivalent of s.29(1)(b)(ii) of the Act.
264 The Court noted that s.23 of the Act provides the jurisdiction of the Commission to enquire into and deal with any industrial matter and noted that the definition of industrial matter in s.7(1) of the Act meant, unless the contrary intention appears, any matter affecting or relating to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein…
265 The Court also noted that by s.7(1) “employer” is defined to include:
“(a) persons, firms, companies and corporations; and
(b) the Crown and any Minister of the Crown, or any public authority, employing one or more employees.”

The Court also noted that “employee” is defined to mean any person employed.
266 The Court noted that it had been consistently held both under the predecessor to the Act and under the Act that this Commission has power to direct a re-employment or reinstatement of an ex-employee as being an industrial matter and stated:
“What this line of authority indicates is that there must be a continuation of an industrial relationship between the parties to constitute an industrial matter. The interpretation provisions of the Act speak in terms of an existing employer/employee relationship. Paragraph (b) of the interpretation section defines ‘industrial matter’ to include any matter relating to the ‘conditions of employment which are to take effect after the termination of employment’. The exercise of power under that provision is limited to the making of the conditions whilst the contract of employment is in existence ((1993) 11 WAR at 25; (1993) 73 WAIG at 1757).”

267 The Court held that:
“Absent any industrial dispute and the claim to reinstate a dismissed employee the Commission does not have the jurisdiction to deal with the common law contract between an ex-employer and his ex-employee (Ibid.).”

268 I pause to note that the Act has since been amended in s.7(1a) to overcome this issue and it does not arise on this occasion.
269 Our attention was not drawn to any corresponding authority in relation to the definition of employer and employee in the WRA or its predecessor. I also note that the definition of “employer” in s.6(1) WRA includes the words:
“6(1)(a) a constitutional corporation, so far as it employs, or usually employs, an individual. (my emphasis)”

270 In this context, it is important to note that the field marked out in s.16(1) WRA is a field which applies in relation to an employee as defined, or an employer as defined. The use of the disjunctive “or” means that if the respondent in this matter in its capacity as the former employer of the applicant remains an employer within the definition in s.6(1) of the WRA, that will be sufficient to raise the issue of jurisdiction even if the applicant is not an employee as defined.
271 In Australasian Meat Industry Employees' Union v. Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165, North J considered the definition of “employer” in the context of proceedings under s.298K(1) WRA. That latter section provides prohibited reasons for certain conduct by an employer and the proceedings before North J concerned whether or not such conduct had occurred.
272 In the course of the matter, the point was raised whether Belandra Pty Ltd was an employer, or usually an employer in circumstances where the termination of an employment relationship had occurred. Relevantly, North J considered the extended definition (by which he refers to the part I have underlined above) meant that Belandra Pty Ltd was usually an employer in those circumstances.
273 In doing so his Honour referred to R v. Findlay & Anor; Ex parte The Commonwealth Steamship Owners' Association & Ors (1953) 90 CLR 621. In that case the extended definition was applied to ensure that freedom of association objects of the Act were achieved. As his Honour sets out, the issue concerned whether attendance money claimed was to be payable when a wharf clerk attended at the place of engagement but was not given employment. The ship owners argued that the claim could not pertain to the relations of employers and employees because it was a claim in respect of a period of no employment and was payable because of the absence of any relationship of employer and employee.
274 Dixon CJ, with whom the other members of the court agreed said at 631:
“The specific reference in par. (f) of the definition of ‘industrial matter’ to monetary allowances in respect of time when an employee is not actually working cannot be ignored. No doubt this paragraph was included in order to cover the case of ‘permanent’ employees remunerated according to time actually worked. But it recognizes that payment for idle time lost is an industrial matter and there is no limit of place or circumstance in the words used. Once again the extended definitions of ‘employer’ and ‘employee’ must be applied, and that means that an existing relation of master and servant at the time the employee was not actually working cannot be essential to par. (f).”
(See (2003) 126 IR 165 at 179).

275 There is therefore authority to suggest that the extended definition of employer in s.6(1) applies to a situation where there is no existing employment relationship, if the circumstances so require.
276 I conclude, not without some hesitation, that in the circumstances of this case, even if the applicant is an ex-employee of the respondent, the respondent is a constitutional corporation which usually employs an individual. As such, the submission on behalf of the applicant is not sufficient to allow it to distinguish the decision in Tristar.

Section 106 of the Constitution
277 The applicant also submitted that if the respondent is correct that s.16 WRA prevents the Commission hearing what is essentially a common law enforcement issue, then the constitutional issue arises whether the federal parliament has power to directly prevent a court of the State from exercising such jurisdiction. The applicant relies upon Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 to submit that five judges of the High Court held that it was beyond the power of the Commonwealth to prohibit the exercise of the ordinary criminal jurisdiction vested in State Courts by State law by reason of s.106 of the Constitution. That case was accepted by the majority in New South Wales & Ors v. The Commonwealth at [384] to [390].
278 The applicant submits that if the respondent is correct that s.16 WRA prevents the Commission from hearing this matter then the constitutional issue arises whether the federal parliament has power to directly prevent a court of the State from exercising such jurisdiction. The applicant submits that whilst the federal parliament may dictate what law is to apply in an area of federal competence and exclude State law, that is different from the federal parliament saying that the law is unaffected but a State court cannot hear and determine that law.
279 The applicant submits that it is beyond the power of the Commonwealth to prohibit the exercise of the ordinary criminal jurisdiction vested in State courts by State law by reason of s.106 of the Constitution, and that Re Tracey was accepted by the majority in New South Wales & Ors v. The Commonwealth at [384] to [390].
280 The respondent submits that New South Wales & Ors v. The Commonwealth dealt with a challenge to s.16(1) WRA on the basis that it was a bare attempt to limit or exclude State legislative power rather than to comprehensively regulate a particular field of activity to the exclusion of any State law which also regulates that field of activity. The High Court's rejection of that challenge established that s.109 has the effect of excluding the Act. This is notwithstanding that the WRA does not regulate each matter within the relevant field which is the subject of regulation pursuant to the Act. That is, s.109 of the Constitution invalidates a State law if federal legislation indicated that it was intended to cover the field to the exclusion of that State law. The respondent also submitted that what is preserved is the right to enforce valid laws, laws that remain valid after the application of s.16(1) WRA. To the extent there is any valid law, including the Commonwealth, there is no impediment to enforcing it; it is just that it can be enforced in another court and not before this Commission.
281 In my view, the respondent's submission is correct. In this context, the majority in New South Wales & Ors v. The Commonwealth at [372] held that the reasoning in Wenn v. Attorney-General (Victoria) (1948) 77 CLR 84 at 120 was directly applicable. That is a reference to the decision of Dixon J who stated:
“To legislate upon a subject exhaustively to the intent that the areas of liberty designedly left should not be closed up is ... an exercise of legislative authority different in kind from a bare attempt to exclude State concurrent power from a subject the Federal legislature has not effectively dealt with by regulation, control or otherwise.”

282 The majority in New South Wales & Ors v. The Commonwealth at [374] also rejected any challenge to s.16 on the basis that it impermissibly curtails or interferes with the capacity of the States to function as governments. They held that s.16 does not represent a bare attempt to limit or exclude State legislative power. At [389], in the context of a challenge to s.117 WRA, the majority held that Re Tracey; Ex parte Ryan was not applicable.
283 I have also reached the conclusion that even if it could be said that s.16(1) of the WRA impermissibly prohibits the enforcement of common law contractual entitlements before the Commission, and that when exercising its jurisdiction under s.23(1) of the Act in this matter, the Commission is a court of the State and thus an essential branch of the State's government, the jurisdiction of the Commission would nevertheless be affected by the operation of s.109 of the Constitution.
284 This is because although the WRA is silent in relation to the enforcement of common law contractual entitlements between an employee and employer which is a constitutional corporation, the WRA covers the field: New South Wales & Ors v. The Commonwealth at [369], [370].

Conclusion
285 I conclude that that the words “in relation to” which are used in s.16 are indeed words of wide import. I find that the respondent is an employer as defined in s.6(1) WRA notwithstanding the ending of the employment relationship between it and the applicant.
286 I also conclude that on the approach of any of the three judges in Tristar that the Commission is not able to deal with a claim of denied contractual benefit brought against an employer that is a constitutional corporation. I am reinforced in that conclusion by the observation of the majority in New South Wales & Ors v. The Commonwealth at [389] when, in the context of the challenge to s.117 WRA they said:
“Secondly, contrary to the submissions of South Australia, it is not the case that in its standard operation s 117 will permit orders preventing a state from enforcing one of its own valid laws, because of s 16(1)(a): if the matter in the state industrial authority involves an industrial law of that state, and if s 16(2) and (3) do not apply, the law is invalid to the extent of its inconsistency with s 16(1)(a) by reason of s 109 of the Constitution.”

287 For the reasons I have given, the Commission is a State industrial authority and the claim before the Commission involves an industrial law of the State. Subsections 16(2) and (3) WRA do not apply in this case, and therefore the Act is invalid to the extent of its inconsistency with s 16(1)(a) by reason of s 109 of the Constitution.
288 I would therefore answer question 1 “Yes”.
289 In relation to question 2, I have had the advantage of reading in advance the reasons for decision of Kenner C, and gratefully adopt them. I too would answer question 2 “No”.
290 I agree with the minute to issue and that any submissions about the terms of the order should be made in writing within seven days of the publication of the minute.
291 I also join with his Honour the Acting President in expressing my thanks to Mr Pettit SC for being prepared to appear for the applicant, who otherwise was unrepresented. His thoughtful submissions have been very much appreciated.

KENNER C:
292 The following two questions of law have been referred to the Full Bench from a Commissioner pursuant to s 27(1)(u) of the Industrial Relations Act 1979 (“the Act”). The questions are:
“1. Does s 16 of the WRA exclude the jurisdiction of the Industrial Relations Commission of Western Australia to enquire into and deal with a claim referred to it under s 29 (1)(b)(ii) by an employee or former employee of a constitutional corporation, subject to any applicable exceptions contained in Workplace Relations Act 2006 (Cth),(the WRA), the Workplace Relations Regulations 1996 (Cth) (the Regulations) and/or any other legislation or subsidiary legislation validly enacted or made by the Commonwealth of Australia.
2. If the answer to (1) is yes, does regulation 1.2(2) of the Regulations preserve the jurisdiction of the Industrial Relations Commission of Western Australia to enquire into and deal with a claim referred to it under s 29 (1)(b)(ii) of the Industrial Relations Act 1979 (WA) by an employee or former employee of a constitutional corporation in respect of an act or omission or a series of acts or omissions, some or all of which occurred prior to 27 March 2006.”

293 Given that the referral to the Full Bench involved a matter arising under the Commonwealth Constitution or involving its interpretation, notices pursuant to s 78B(1) of the Judiciary Act 1903 (Cth) were directed to be served on the Commonwealth and State and Territory Attorneys-General. No intervention was sought by any of the Attorneys-General. I also observe at this juncture that it is not in dispute that the respondent is a constitutional corporation.

Contentions of the Parties
294 Without hopefully doing any injustice to the careful and helpful written and oral submissions made by counsel for the parties, a summary of their contentions follows.

Applicant
295 Senior counsel for the applicant submitted that the Commission’s jurisdiction to enquire into and deal with a claim for a denied contractual benefit referred to the Commission under s 29 (1)(b)(ii) of the Act, is in essence, a common law claim. The applicant’s claim is such a matter. It was said on this footing that properly construed, s 16(1) of the WR Act, in relation to the expression “the following laws of a State”, refers to written law and not the common law, which is not ousted by s 16 of the WR Act.
296 As a common law claim, in the form of a debt due from her former employer, the applicant submitted that it is able to be brought before either this Commission or another court of competent jurisdiction, unaffected by s 16 of the WR Act.
297 In developing this submission, senior counsel further said that the terms of s 7(1a) of the Act, extends the definition of “industrial matter” to parties who are no longer in an employee and employer relationship. This puts the applicant’s claim beyond the reach of s 16(1) of the WR Act, as the reference to “employee or employer” in that section of the Commonwealth legislation should be properly interpreted as extending only to an existing employee/employer relationship, and not matters involving former employees such as the applicant. This is so, as the submission went, because the relevant definitions of “employee” and “employer” in ss 5(1) and 6(1) of the WR Act respectively, are central to its operation and the constitutional basis upon which the Commonwealth legislative framework was constructed: NSW v Commonwealth (2006) 231 ALR 1 at par 8.
298 Senior counsel also submitted that properly construed, s 16 of the WR Act is intended to exclude State industrial relations legislative regimes and not the State enforcement of the common law. In this connection, various references were made to the Explanatory Memoranda accompanying the WR Act and relevant extracts from Hansard. From these materials, and adopting a purposive interpretation of the WR Act, leads to the conclusion that conditions of employment under common law contracts of employment were not intended to be excluded by the operation of s 16. It was submitted that it was appropriate to have regard to these materials, to resolve any ambiguity, both in terms of the specific construction of the relevant statutory provisions, and also in terms of ascertaining the intention of the legislature: Repatriation Commission v Vietnam Veteran’s Association (2000) 48 NSWLR 548 per Spigelman CJ at 116; ss 15AA and 15AB Acts Interpretation Act 1901 (Cth)
299 On the basis of these contentions, it was said that there is no purpose to be achieved by interpreting the relevant provisions of the WR Act to exclude a remedy under common law, such as the Commission’s contractual benefits jurisdiction. In support of this general proposition, senior counsel referred to two decisions of Industrial Magistrates of the South Australian Industrial Relations Court in Head v Adrad Pty Ltd (2008) 170 IR 359 and Armanini v Transfield Services (Australia) Pty Ltd (2007) 162 IR 432. Under s 14 of the Fair Work Act 1994 (SA), the Court is given jurisdiction to decide money claims under a contract of employment, in addition to the ability to enforce the terms of industrial instruments, including those under the WR Act. In this connection, the South Australian Industrial Relations Court is an “eligible court”, for the purposes of s 717 of the WR Act.
300 It was held in both Head and Armanini, consistent with the applicant’s contentions in these proceedings that common law claims fell outside of the scope of the relevant field of the WR Act for the purposes of s 16 of the WR Act. Thus s 16(1) of the WR Act, did not exclude the Court’s jurisdiction to deal with the relevant common law claims in those cases. The same conclusions were reached by the Court in Jaffer v BDS Recruitment Pty Ltd [2007] SAIRC 97 and Dohrmann v Bell Potter Securities Limited [2008] SAIRC 3.
301 In the alternative, senior counsel for the applicant submitted that if the Full Bench concludes that s 16(1) of the WR Act ousts the Commission’s jurisdiction to deal with the applicant’s contractual benefits claim, then it may be saved by Ch 2 reg 2.1.2(2) of the Regulations. It was submitted that in reliance upon a decision of Smith SC in Gwenda May Smith v Albany Esplanade Pty Ltd T/A the Esplanade Hotel (2007) 87 WAIG 508 the contractual benefits jurisdiction of the Commission constitutes to an “obligation” for the purposes of reg 2.1.2(2). Furthermore, the applicant’s claims arose in “respect of” an act or omission that occurred before 27 March 2006, by way of the respondent’s direction to the applicant in 1999, for her to work additional hours.
302 Finally, if the terms of s 16(1) of the WR Act impact on the Commission hearing a contractual benefits claim, it was submitted that the terms of s 106 of the Constitution (Cth), dealing with the savings of the respective Constitutions of the States, precludes the Commonwealth Parliament from legislating to prevent a State court from exercising its jurisdiction to hear a common law claim of the present kind: Re Tracey; Ex Parte Ryan (1989) 166 CLR 518 at 574, 575; Truong v The Queen (2004) 223 CLR 122 at 163.

Respondent
303 Counsel for the respondent submitted that the Commission’s jurisdiction to entertain a contractual benefits claim brought against a constitutional corporation is ousted by s 16 (1) of the WR Act, by reason of the decision of the High Court in NSW v Commonwealth. In particular it was submitted that the High Court found that, in reliance upon an earlier decision of the Court in Wenn v Attorney-General (Vict) (1948) 77 CLR 84, s 109 of the Constitution (Cth) can invalidate a State law, even if the relevant federal legislation contains a less detailed scheme than the State law. This does not preclude the State law being invalid on the basis that it intrudes into the broad field created by the federal legislation, despite the Commonwealth not having legislated on particular matters contained in the State law.
304 In this regard, it was submitted that there was some reference to the Commission’s contractual benefits jurisdiction in the judgement of the Court in NSW v Commonwealth at par 387. Overall it was contended that the effect of s 109 of the Constitution (Cth) is to exclude the Act, despite the WR Act not regulating each matter within the relevant field, that being the field of activity concerning an employee or employer, as defined in ss 5(1) and 6(1) of the WR Act.
305 In relation to the second question, the respondent submitted that Ch 2 reg 2.1.2(2) of the Regulations, dealing with compliance with obligations under a State law, has no application to the present circumstances. Counsel submitted that the applicant’s claims do not arise under a State law as defined in s 4 of the WR Act, but rather under the common law. In connection with this submission, reference was made to a decision of Wood C in Gary Phillips v TR 7 Pty Ltd (2006) 86 WAIG 2646.
306 Furthermore, counsel for the respondent contended that on its proper construction, the terms of s 16(1) of the WR Act is not limited to an employee presently in an employment relationship with a constitutional corporation. The scheme of the WR Act makes it plain by for example ss 166B, 404 and 718, that it is intended to operate in relation to persons who were former employees of a constitutional corporation in particular, in relation to the enforcement of entitlements on their behalf by Industrial Inspectors. It was submitted in this regard, that to construe s 5(1) of the WR Act, as to the definition of “employee”, in such a restricted way, would be inconsistent with the decision in NSW v Commonwealth.

Consideration
Contractual benefits jurisdiction
307 The Commission has jurisdiction to enquire into and deal with claims by employees and former employees for the recovery of denied contractual benefits. Such claims may be referred to the Commission pursuant to s 29(1)(b)(ii) of the Act which is in the following terms:
“(b) in the case of a claim by an employee — 
(i) …
(ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment, by the employee.”

308 It is trite to observe that s 29(1)(b)(ii) does not confer a head of power on the Commission to deal with such a claim but rather, as with s 29 (1) generally, is a provision dealing with the standing of persons to invoke the Commission’s jurisdiction to bring such claims before it: Matthews v Cool or Cosy Pty Ltd (2004) 84 WAIG 2152.
309 It is only an “industrial matter” that may be so referred under s 29(1)(b) of the Act. Section 23(1) of the Act, the source of the Commission’s jurisdiction generally, is in the following terms:
“23. Jurisdiction of Commission under this Act
(1) Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.”

310 “Industrial matter” as defined in the Act is very broad in scope and is prescribed by s 7 as follows:
“industrial matter means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to — 
(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;
(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;
(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;
(ca) the relationship between employers and employees;
(d) any established custom or usage of any industry, either generally or in the particular locality affected;
(e) the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;
(f) in respect of apprentices or trainees — 
(i) their wage rates; and
(ii) subject to the Industrial Training Act 1975 — 
(I) their other conditions of employment; and
(II) the rights, duties, and liabilities of the parties to any agreement of apprenticeship or training agreement;
(g) any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including —
(i) the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or
(ii) the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;
[(h) deleted]
(i) any matter, whether falling within the preceding part of this interpretation or not, where — 
(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and
(ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;
and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include — 
(j) compulsion to join an organisation of employees to obtain or hold employment;
(k) preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees;
(l) non-employment by reason of being or not being a member of an organisation of employees; or
(m) any matter relating to the matters described in paragraph (j), (k) or (l);”

311 In my view there can be no question that a claim by an employee (or former employee by reason of s 7(1a) of the Act) is an industrial matter as defined, so long as the matter has the requisite “industrial character”: Hotcopper v Saab (2002) 82 WAIG 2020; Coles Myer v Coppin and Ors (1993) 73 WAIG 1754; (1993) 11 WAR 20. The relevance of this issue for present purposes is a matter I further consider below.
312 The term “benefit” in relation to a claim under s 29 (1)(b)(ii), is very broad and is not restricted to the recovery of a money sum by way of a debt due under a contract, but it often is. A “benefit” includes any “advantage, entitlement, right, superiority, flavour, good or perquisite”: Balfour v Travelstrength (1980) 60 WAIG 1015; Welsh v Hills (1982) 62 WAIG 2708; Waroona Contracting v Usher (1984) 64 WAIG 1500; Slee and Stockden Pty Ltd v Blewitt (1992) 47 IR 104. The “benefit” must be an entitlement under the contract as a matter of legal right and may arise from an express or implied term of the contract: Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307; Simons v Business Computers International Pty Ltd (1985) 65 WAIG 2039.
313 In terms of remedy, in cases brought under s 29(1)(b)(ii) of the Act, the Commission is empowered to “enquire into and deal with” the industrial matter so referred. The breadth of the Commission’s jurisdiction and the remedies that are available in claims of denied contractual benefits arose for consideration most recently by the Industrial Appeal Court in Matthews. In this case, the nature of the Commission’s contractual benefits jurisdiction was in issue.
314 In Matthews the members of the Court adverted to earlier observations of Anderson J (with whom Parker and Hasluck JJ agreed) in Hotcopper, as to the nature of the Commission’s contractual benefits jurisdiction. In particular, Steytler J, after considering observations of Kennedy J in Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11 said at pars 26 and 27 as follows:
“[26] I should say, as regards those observations, that it seems to me that Kennedy J was there considering only the question whether the Commission had the jurisdiction (under the legislation as it then stood), if it declined to order an employer to re-employ a recently dismissed employee, to make an order compensating the employee, in particular, in an amount beyond that which the employee could have recovered at common law (and it should be remembered that a harsh, oppressive or unfair dismissal is not necessarily a wrongful dismissal for the purposes of the common law) and that it was in that context only that his Honour said that the remedy under s 29(b)(ii) was, by way of comparison, restricted to the employee's contractual rights. As I read his Honour's comments, he did not intend to address the question whether, if the benefit in the form of the employee's contractual rights was denied, the Commission was empowered, in dealing with the matter, to award compensation in lieu thereof. In any event, Kennedy J's comments were made prior to the introduction of s 7(1a) of the Act (that section was introduced on 9 May 1995) and that section seems to me to evince a legislative intention that compensation may be awarded in lieu of a denied contractual benefit. Were the position otherwise, the extended definition of ‘industrial matter’ provided for by s 7(1a)(b) would have application only in cases in which the ‘benefit’ was one which was still capable of being provided in the form contracted for, even though the employment relationship had ended. I very much doubt that could have been the legislature's intention.
[27] The approach which I have favoured is that which was favoured, also, by Anderson J in HotCopper, above, at [24], where, without intending to express a concluded view, his Honour said (with the concurrence of the other two members of the Court) in the context of a claim referred under s 29(1)(b)(ii) that he was inclined to think that the Commission was empowered to make ‘a monetary order for compensation — that is, a damages award — in an appropriate case, as long as its purpose is to do no more than is necessary to 'redress the matter by resolving the conflict in relation to the industrial matter' — Welsh v Hills (1982) 62 WAIG 2708 — and as long as its effect is so limited’.”

315 Pullin J, after expressing his disagreement with Cort SC in Welsh v Hills (1982) 62 WAIG 2708 that an award of damages is not open on a contractual benefits claim, went on to observe as follows at pars 52-54 :
“[52] With respect, I do not agree with the view expressed by Senior Commissioner Cort in the passage quoted above. Parliament has conferred jurisdiction on the Commission to deal with a claim for denied contractual benefits. If the Commission could only deal with the claim by ordering that the contract be performed in specie, then it could only order that the employer give notice. In circumstances when the contract of employment had already been terminated, that would be a meaningless order. Parliament, by s 7(1a), has made it clear that the Commission still has authority to deal with this type of claim after employment was terminated. In those circumstances, the only way that the Commission could deal with a claim of this nature, and to thereby settle the industrial dispute, would be to order damages in lieu of notice.
[53] I therefore agree with the obiter of Anderson J in HotCopper Australia Ltd v Saab [2002] WASCA 190. In that case, his Honour referred to the decision of Gregor C at first instance. Gregor C noted that an award of monetary compensation in lieu of a denied contractual benefit, is not the benefit, allowance, or entitlement set out, or implied, in the contract. Gregor C described the compensation as a ‘substituted form of specific performance’. Anderson J disagreed with that conclusion, and I agree with Anderson J's reasons on that point. Anderson J then went on to say at [24]:
This does not necessarily mean that the Commission may not entertain a reference under s 29(1)(b)(ii) unless it is in its form and in its terms a claim by an employee to recover in specie the precise benefit expressed or implied in the employment contract. In the context of the exercise of jurisdiction to resolve an industrial dispute of the kind described in s 29(1)(b)(ii), nothing much would seem to turn on the distinction between the two remedies (damages and specific performance) in the general run of cases. It seems to me that if there is a dispute which is an industrial matter, and the subject matter of it is a claim (in the sense of a complaint) of the kind defined in s 29(1)(b)(ii), it is a dispute that may be dealt with by the Commission on a reference by the employee. How it is dealt with will be for the Commission to decide within the powers and discretions conferred on it by those sections of the Act which regulate the manner in which the Commission may exercise its jurisdiction in any particular case. Without intending to express a concluded view, I am inclined to think that this would include making a monetary order for compensation — that is, a damages award — in an appropriate case, as long as its purpose is to do no more than is necessary to 'redress the matter by resolving the conflict in relation to the industrial matter' — Welsh v Hills (1982) 62 WAIG 2708 — and as long as its effect is so limited.
[54] I agree with his Honour's tentative view, for the reasons set out above. Although I am repeating myself, it is my opinion that in a case where the employer dismisses an employee without cause, and in breach of a contractual promise to give notice, then the employee may refer a claim to the Commission that he has been denied a contractual benefit, and the Commission may ‘deal with’ the claim by awarding damages. My decision on this point means that an employee who has a contractual right to more than six months' notice, and who is dismissed without cause, will be able to bring a claim for damages for a disallowed contractual benefit, and thereby avoid the restriction on the amount of compensation (imposed by s 23A(4) (now s 23A(8)) which may be ordered on a claim for unfair dismissal. Counsel for the respondent submits that the appellant's claim for unfair dismissal ‘underpinned’ the respondent’s claim under s 29(1)(b). I do not agree with that submission. There were separate claims, and one did not ‘underpin’ the other. The consequence of the decision I have reached is a result of the way the Act has been drafted. The restriction on the award of compensation imposed by Parliament in s 23A(4) was imposed only ‘on a claim’ of harsh, oppressive, or unfair dismissal. If the section had imposed the restriction not in relation to ‘claims’ but in relation to cases in relation to which there had been harsh, oppressive, or unfair dismissal, then the restriction would have applied no matter how the claim was formulated. It is a well-known canon of statutory construction, that if common-law rights are to be taken away by Parliament, then Parliament must do so using clear language. The right to damages for a breach of contract is a common-law right, and the restriction on the right to compensation which has been imposed by s 23A(4), has been imposed by Parliament only in relation to an employee who formulates his or her claim as a claim that he or she has been harshly, oppressively, or unfairly dismissed. ”

316 Furthermore, EM Heenan J also considered the nature of the Commission’s contractual benefits jurisdiction in some detail and in particular, the remedies that may flow from a successful claim. In this respect, his Honour said at pars 72-76:
“[72] The final important issue arising on this appeal is whether, when exercising its powers under s 23(1), to give effect to a claim made by an employee under s 29(1)(b)(ii) or whether when dealing with such a claim coupled with a claim for relief for harsh, oppressive or unfair dismissal under s 23A there is any other restraint upon the remedies which the Commission may grant. This arises in the present case because of the submission that, generally speaking, the Commission is not empowered to entertain a claim for damages for breach of contract on an application under s 29(1)(b)(ii) — see Welsh v Hills (1982) 62 WAIG 2708 and HotCopper Australia Ltd v Saab [2002] WASCA 190 ; 82 WAIG 2020 per Anderson J at [24].
[73] I agree, with respect, with the conclusions of Steytler J and of Pullin J in this case that in circumstances such as the present the Commission is empowered to make a monetary order, in the nature of damages, to deal with the industrial matter before it, as it is empowered to do under s 23(1), notwithstanding that the relief granted is to award damages for breach of the employment of contract arising from the employer's dismissal without notice or with inadequate notice. However, I do not wish to be understood as suggesting that this is a special exception or qualification upon limits of the Commission, otherwise, to give effect to common law entitlements on an application by an employee under s 29(1)(b)(ii).
[74] As set out earlier in these reasons the position of an employee seeking relief when the employer has summarily purported to dismiss him from his employment will vary depending upon whether or not the dismissal constitutes wrongful dismissal at law, or whether it constitutes harsh, oppressive or unfair dismissal within the meaning of the Act, or whether it constitutes both. In the present case the Commission has granted this appellant the full measure of relief to which he is entitled under s 23A(1)(ab) (now s 23A(6)) of the Act on the facts as found. In my view it was, and still remains, necessary for the Commission to consider whether the appellant employee has any greater entitlement to monetary relief for the vindication of his common law rights and, if so, to recognize that greater entitlement by the appropriate monetary order.
[75] The nature of the common law entitlement which may exist in these, or like, circumstances includes:
· a claim in debt for a liquidated sum for past wages or other entitlements earned by the applicant employee for work or services performed under the contract prior to the dismissal;
· a claim determined on a quantum meruit for the value of work or services actually performed under the contract of employment but not payable at the time of the dismissal;
· a claim for unliquidated damages for breach of the contract of employment determined by taking into account the amount which would have been earned by the employee had he been permitted to continue to perform the services for which he was employed, less any amounts which may be attributable to the effect of, or the need for, mitigation of those damages, or of other intervening effects which might have prevented the applicant from receiving those earnings or which might have diminished those earnings, had the employment relationship continued until it had been lawfully determined.
[76] These various claims in debt, on a quantum meruit, or for damages are all, to my mind, claims by an employee for a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment within the meaning of s 29(1)(b)(ii) or, for that matter, within the scope of s 23A(1)(a) of the Act as it stood at the time of the events material to this appeal as being ‘any amount to which the claimant is entitled’. I do not see any reason why an employee, engaging the jurisdiction of the Commission under s 23 or s 23A, may not advance and, if proved, have vindicated such claims.”

317 On the basis of the views expressed by the members of the Court in Matthews, contractual benefits claims may therefore be regarded as common law based claims for a range of remedies arising from the denial by an employer of a benefit due to an employee or former employee under the contract of service. Such are able to be recovered before the Commission as part of the Commission’s jurisdiction to enquire into and “deal with” an industrial matter of this particular kind. Importantly however, although the source of such a claim is the common law, the capacity to enforce it is a statutory function, pursuant to the powers conferred on the Commission by the Parliament in s 23(1) of the Act. This is so because in every case, the relevant claim arising from the common law contract under consideration, must still constitute an “industrial matter” in s 7 of the Act, in order that the Commission may enquire into and deal with it, exercising its jurisdiction under s 23(1) of the Act.
318 To illustrate and emphasise the point just made, and in the present context it is an important one in my opinion, it is, as dealt with above, not the case that all common law contractual benefits claims are justiciable before the Commission under s 29(1)(b)(ii) of the Act. On the authority of Hotcopper, in the judgement of Anderson J, with whom Parker and Hasluck JJ agreed, it is not every contractual claim that will fall within the Commission’s contractual benefits jurisdiction. Such claims, to be “industrial matters” for the purposes of s 7 of the Act, must have the requisite “industrial character”. There is nothing apparent in subsequent judgments of the Court, most recently in Matthews, that would suggest that Anderson J’s approach in Hotcopper has been overturned on this point. Hotcopper was referred to with approval by Hasluck J (Anderson and Parker JJ agreeing) in BGC (Australia) Pty Ltd v Phippard (2002) 82 WAIG 2013 at pars 40-41 and 54.
319 Thus, for example, whilst the subject matter of the contractual benefits claim in Hotcopper, for the value of shares and options arising from the contract of employment, may have been pursued, subject to the quantum of damages claimed, in another State court of competent jurisdiction, such as the District or Supreme Courts, it was not, for the reasons expressed by Anderson J, able to be pursued before the Commission. The decision of the Court in Hotcopper highlights in my opinion, that it is not all common law contractual claims between present or former employees and employers that are within the Commission’s jurisdiction. They must meet the statutory criteria in ss 7 and 23(1) of the Act and in that sense the legislation operates to modify the common law origin of the claim.

The WR Act
320 By s 3 of the WR Act it is provided in part that:
“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:
(a) …
(b) establishing and maintaining a simplified national system of workplace relations;”

321 The provision with which the current matter is mostly concerned s 16(1). It provides as follows:
“16 Act excludes some State and Territory laws
(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;
(b) a law that applies to employment generally and deals with leave other than long service leave;
(c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 623);
(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;
(e) a law that entitles a representative of a trade union to enter premises.
Note: Subsection 4(1) defines applies to employment generally.”

322 The operation of s 16(1) is subject to the exceptions and exclusions in s 16(2) and (3) of the WR Act that are not relevant for present purposes.
323 Under s 16(1)(a) a “state or territory industrial law” means one of the main State Acts as set out in s 4 of the WR Act, which includes the Act. It also must be interpreted to mean in my opinion, the written law of a State or Territory, and not the common law of Australia: Lipohar v R (1999) 200 CLR 485.
324 For the purposes of s 16(1) “employee” and “employer”, by s 4(1), have the meanings as set out in ss 5 and 6 of the WR Act respectively. By s 5 “employee” is relevantly defined as:
“5 Employee
Basic definition
(1) In this Act, unless the contrary intention appears:
employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6(1), by an employer, except on a vocational placement.”

325 Correspondingly, by s 6 “employer” is relevantly defined as:
“6 Employer
Basic definition
(1) In this Act, unless the contrary intention appears:
employer means:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: See also Part 21 (employees and employers in Victoria).”

326 For present purposes, the relevant part of the definition of “employer” is in (a), that being a “constitutional corporation”, which by s 4(1), is a corporation to which s 51(xx) of the Constitution (Cth) applies: that being a trading or financial corporation formed within the limits of the Commonwealth. As noted above, it is not in dispute that the respondent for the purposes of the matters referred to the Full Bench is a corporation of that particular kind.

The Relevant Field
Constitutional Validity
327 In NSW v Commonwealth, a majority of the High Court, (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan JJ dissenting) upheld the constitutional validity of the “Work Choices” amendments to the WR Act in their entirety as a valid exercise of the Commonwealth’s constitutional power under s 51(xx) of the Constitution (Cth).
328 In dealing with the challenge to the constitutional validity of, in particular, s 16 of the WR Act, led in the main by Western Australia, the Court said as follows at pars 364-366:
“[364] Western Australia’s arguments on whether there was a bare attempt to limit or exclude state legislative power. It follows from the conclusion just reached that the parliament had available to it the heads of power referred to in the definition of ‘employer’ in s 6(1). But Western Australia submitted that in s 16 the parliament had failed to use its power to deal with the subject-matter of the new Act. Section 16 was not a law dealing with a subject-matter assigned to the parliament; it was a law merely aimed at preventing state legislative action. That was because it sought to exclude the operation of state laws on matters in relation to which the Commonwealth had not attempted to legislate.
[365] Western Australia accepted that it is open to the parliament to identify a field to be ‘covered’ by federal laws in the sense that federal laws are to operate exclusively of state laws, making those state laws inconsistent with the federal laws and invalid to that extent under s 109 of the Constitution.369 But Western Australia contended that the Commonwealth had attempted, in a sense, to manufacture inconsistency for the purposes of s 109 of the Constitution in attempting to take the ‘covering the field’ test beyond what s 109 permits.
[366] Western Australia submitted that in contrast to s 17, s 16 was not expressed in terms requiring there to be an inconsistency between the new Act and a state law. Both ss 17 and 18 would be unnecessary if s 16 were a genuine attempt to identify the extent to which the new Act was intended to operate exclusively, and they reveal that s 16 is concerned with the operation of state laws, not with preserving the operation of particular provisions of the new Act which might be inconsistent with state laws.”

329 The Court also referred to the arguments of Western Australia as to the scope of s 16 as moving beyond the content of the WR Act in these terms at par 367:
“[367] Western Australia also contended that in numerous respects s 16 attempts to invalidate state laws despite having failed to enact any corresponding federal law. Western Australia said, for example, that s 16(1)(d) provides that the new Act is intended to apply to the exclusion of a state or territory law providing for the variation or setting aside of rights and obligations arising under a contract of, or arrangement for, employment that a court or tribunal finds to be unfair. The only provisions in the new Act dealing with unfair contracts are ss 832–834, and they only deal with contracts binding on independent contractors, not employees. Hence s 16(1)(d) applies to the exclusion of Pt 9 of Ch 2 of the Industrial Relations Act 1996 (NSW), dealing with unfair contracts of employment. The state law is excluded, but no federal law applies. Western Australia contended that there were various other examples of this. One was said to relate to s 16(1)(e) which, read with s 16(3)(c), indicates an intention to apply the new Act to the exclusion of state laws dealing with the exercise of rights by a representative of any trade union to enter premises for any purpose other than occupational health and safety; yet the new Act only deals with the exercise of rights of entry pursuant to Divs 4, 5 and 6 of Pt 15 by officials of organisations registered under the new Act for certain purposes. Attention was drawn to the fact that ‘trade union’ is defined in s 4(1) to include organisations of employees whether or not registered under the new Act. Another example related to state Acts of the kind referred to in para (b) of the definition of ‘State or Territory industrial law’ in s 4(1), so far as they deal with matters for purposes other than one of the ‘main purposes’ specified in that part of the definition. Western Australia submitted that those state Acts are excluded by s 16(1)(a) without any substantive regulation of the subject in the new Act itself. Other examples, developed in considerable detail, related to the making of regulations under s 16(4) in relation to discrimination legislation, matters listed in s 16(3), redundancy provisions, and the enforcement of contractual entitlements.”

330 The Commonwealth submissions were to the effect that it was open to the Commonwealth to prescribe the relevant field of its law for the purpose of s 109 of the Constitution (Cth) as follows at par 369:
“[369] The Commonwealth’s arguments. The Commonwealth specifically declined to contend that if a Commonwealth law simply sought to exclude state law in a field and made no provision whatever on the same subject-matter it was within power. The Commonwealth contended rather that it was open to the Commonwealth Parliament to indicate the relevant field it intended to cover to the exclusion of state law, that s 109 would then operate even though the Commonwealth had not made its own detailed provisions about every matter within that field which state law dealt with, and that it sufficed for the Commonwealth to have some provisions dealing with aspects of the field, leaving others unregulated. The Commonwealth submitted that the relevant field was to be identified, not by reference to the areas regulated by state law, but by reference to the terms of the Commonwealth law. It was concluded above that the Commonwealth has power to regulate the relationships between employees and employers as defined in ss 5(1) and 6(1) by reliance on the heads of power referred to in paras (a), (e) and (f) of the definition of ‘employer’ in s 6(1). The Commonwealth submitted that it was open to the parliament to identify the rights and obligations arising out of those relationships of employees and employers as a field, and to indicate an intention to cover that field (or, as here, part of it, because of the limitations to s 16(1) and the operation of s 16(2) and (3)). On the construction of s 16(1) accepted above,372 the Commonwealth chose to exclude state law only in respect of the relations of employees and employers as defined in ss 5(1) and 6(1).”

331 The majority of the Court preferred the approach of the Commonwealth and in relation to this issue included at pars 370-372 in the following terms:
“[370] No bare attempt to limit or exclude state legislative power. The Commonwealth’s submissions are to be preferred. Western Australia pointed to nothing in s 109 itself or in the case law on s 109 suggesting that s 109 will not cause Commonwealth law to prevail over an inconsistent state law and render it invalid to the extent of the inconsistency unless the Commonwealth law provides some regime for regulating each particular aspect of the topics dealt with by the state law. Rather, as Dixon CJ put it in Lamshed v Lake,373 the distinction is between a law which lays down a positive rule and a law ‘seeking rather to limit State power’. Section 109 may operate where the Commonwealth chooses to enact a scheme involving a more detailed form of regulation than state law provides. Equally, s 109 may operate where the Commonwealth creates a scheme involving less detailed regulation than state law provides.374 And s 109 may operate where the parliament has done what it has in the new Act — to provide a more detailed scheme than state law in some respects and a less detailed scheme in other respects. The Commonwealth has legislated to provide a detailed set of rules for particular agreements; it has not dealt, for example, with unfair contracts except in relation to independent contractors, but that does not preclude it from defining a field of relationships between s 5(1) employees and s 6(1) employers, and occupying parts of that field, like unfair contracts, to the exclusion of state law.
[371] Section 16 of the new Act strongly resembles s 24(2) of the Re-establishment and Employment Act 1945 (Cth).375 It relevantly provided:
The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating to the employment of discharged members of the Forces, of any law of a State, or of any industrial award, order, determination or agreement made or filed under or in pursuance of any such law …
Section 27(5)(a) provided that there was to be no preference in relation to promotion for discharged servicemen already employed by an employer. In Wenn v Attorney-General (Vic)376 the defendant advanced the argument which Western Australia has advanced in this case:
[T]he doctrine of ‘covering the field’ applies only where the Commonwealth Parliament has itself made some positive provision with respect to a particular subject with which provision any State law on that subject would be inconsistent. Section 27(5)(a) excludes the application of any preference in promotion by virtue of the Federal Act. It does not make any positive provision with respect to promotions. The defendant argues that therefore the field is free for the States, the Commonwealth Parliament not having provided any law with respect to promotions, so that s 109 of the Commonwealth Constitution cannot apply so as to render any State law inoperative.
The court unanimously rejected that argument. Latham CJ (with whom McTiernan J agreed) said:377
Section 24(2) is a provision prescribing the area within which Federal law, as enacted in the Act, is to apply to the exclusion of State law in respect of a subject as to which the Commonwealth Parliament has full legislative power …
It is … within Federal legislative power to prevent the operation of separate and possibly varying State enactments dealing with the same subject.
Dixon J (with whom Rich J agreed) said:378
Section 24 and s 27 … justify the conclusion that, on the one hand, the Federal Parliament intended to define the extent to which the duty to give preference should go and to do it so as to exclude promotion, and, that on the other hand, it intended to provide in this and other respects what would be the only rule upon the subject and so would operate uniformly and without differentiation based on locality or other conditions. In this Court it is far too late to contend that s 109 does not invalidate State law which in such a state of affairs carries the regulation of the same matter further than the Federal legislation has decided to go. This is a case where the Federal legislation undertakes a regulation or statutory determination of the very subject and then goes on to express an intention that it shall be an exhaustive declaration of the law on that particular subject.
Dixon J then said:379
To legislate upon a subject exhaustively to the intent that the areas of liberty designedly left should not be closed up is … an exercise of legislative authority different in kind from a bare attempt to exclude State concurrent power from a subject the Federal legislature has not effectively dealt with by regulation, control or otherwise.
He said there was ‘a debatable area where Federal laws may be found that seem to be aimed rather at preventing State legislative action than dealing with a subject matter assigned to the Commonwealth Parliament’.380 But he concluded that the federal Act was ‘well within the line’.
[372] The similarity of the statutory position in that case to that in the present case makes the reasoning directly applicable. Wenn has been cited with approval in many cases including Botany Municipal Council v Federal Airports Corporation,381 Western Australia v Commonwealth (Native Title Act Case)382 and the Industrial Relations Act Case.383 Western Australia did not contend that any of these cases should be departed from. It follows that Western Australia’s second challenge to the validity of s 16 must fail.”

332 Importantly of course, the Court in NSW v Commonwealth only concerned itself with the constitutional validity of the WR Act as amended by the Work Choices legislation, and not the scope of the field of coverage thereby created. Additionally, nor could it be said in my opinion, that the mention by the Court at par 367, set out above, of the Commission’s contractual benefits jurisdiction, could be taken to be a determination that such claims are excluded by s 16(1) of the WR Act.

Scope of the Field
333 The scope of s 16 of the WR Act, in terms of the relevant field of operation, and in particular, its effect on the operation of State industrial laws as defined in s 4 of the WR Act, was recently considered by the Full Court of the Federal Court of Australia in Tristar Steering Suspension Australia Ltd and Anor v Industrial Relations Commission of NSW and Anor (2007) 240 ALR 62. In this case, the Industrial Relations Commission of NSW commenced an enquiry pursuant to s 146(1)(d) of the Industrial Relations Act 1996 (NSW) in accordance with terms of reference concerning a dispute between the applicant and its employees regarding redundancy and other matters.
334 The applicant commenced proceedings in the Federal Court, seeking orders in the nature of prohibition or injunctions, to prevent the Industrial Relations Commission of NSW from continuing to deal with the matter on the footing that the applicant was a constitutional corporation and, by reason of s 109 of the Constitution (Cth), s 146(1)(d) of the Industrial Relations Act 1996 (NSW) was invalid.
335 The Court (Kiefel, Gyles and Buchanan JJ), in separate judgements, upheld the application and made orders restraining the Industrial Relations Commission of NSW from further enquiring into and reporting on the matters referred to it by the NSW Minister for Industrial Relations and from exercising any jurisdiction under the NSW Act in connection with the matter.
336 A central issue in the proceedings was the scope of s 16(1) of the WR Act and whether it excluded the jurisdiction of the Industrial Relations Commission of NSW from dealing with the matter before it as it related to the applicant, as a constitutional corporation. Kiefel J, after considering the relevant statutory provisions, observed as follows at pars 10 and 11:
“[10] Section 16 may 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 identification of such a field is consistent with the view that s 51(xx) of the Constitution at least extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations: Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at [83] per Gaudron J, cited with approval in NSW v Commonwealth 81 ALJR 34; 231 ALR 1 at [177]. 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. I did not understand their Honours in NSW v Commonwealth 81 ALJR 34; 231 ALR 1 to suggest that this might be the case when they said (at [369]) that the power exercised by the Commonwealth was exercised over part of the field, because of the limitation upon s 16(1) and the operation of s 16(2) and (3).
[11] Where a Federal statute shows an intention to cover a subject matter and provide what the law upon it shall be, there is a conclusive test of inconsistency as far as the State statute assumes to enter, to any extent, upon the same field: Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489; Ex parte McLean (1930) 43 CLR 472 at 483.”

337 After considering the arguments of the NSW Minister Kiefel J continued at pars 15-16:
“[15] It is the Commonwealth Act to which regard must be had in determining inconsistency. Inconsistency will exist where there are two sets of provisions on the same subject: Clyde Engineering v Cowburn 37 CLR 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] It is not necessary in these circumstances to inquire further and examine and contrast particular provisions: Clyde Engineering v Cowburn 37 CLR at 490. 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. I would however add these observations with respect to the Minister's contention that an inquiry into ‘industrial matters’ might not operate inconsistently with the Commonwealth Act because it extends generally to ‘work done or to be done in any industry’ and may not be connected with an employer or employee. The submission ignores the fact that work will be done by either or both of them and it ignores the statutory context in which it appears, that of industrial relations and disputes.”

338 Gyles J agreed with both Kiefel and Buchanan JJ and in a separate judgement at pars 19-22 said:
“[19] Once the validity of s 16 of the Workplace Relations Act 1996 Cth (the Commonwealth Act) is accepted (NSW v Commonwealth (2006) 81 ALJR 34; 231 ALR 1 at [346]-[372]) there is an express Commonwealth legislative intention to make the Commonwealth Act ‘exclusive and exhaustive’ within its field (Wenn v Attorney-General (Vic) (1948) 77 CLR 84 at 109). The general principles which apply to the application of s 109 of the Constitution of the Commonwealth in that situation are explained in Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 465-468 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[20] The question as to whether s 146(1)(d) of the Industrial Relations Act 1996 NSW (the NSW Act) enters the field occupied by the Commonwealth Act is not to be judged by concentrating upon that subsection alone, or by reference to the particular inquiry being conducted pursuant to it. It certainly is not to be judged by analysing the effect of that inquiry upon the first applicant alone.
[21] Buchanan J has set out the objects contained in s 3 of the NSW Act. Once those objects are compared with the objects set out in s 3 of the Commonwealth Act, it is obvious that the NSW Act invades the field of the Commonwealth Act so far as constitutional corporations are concerned. That conclusion is confirmed by scanning the table of contents of the two Acts. The Commonwealth Act regulates the conduct of constitutional corporations, at least in relation to their actual or potential employees, both by what is prescribed and what is not. The NSW Act sets out to regulate the conduct of all employers in relation to their actual or potential employees, including constitutional corporations. That is not permitted by s 109 of the Constitution. The NSW Act must yield. In order to come to that conclusion it is not necessary to descend to examining the impact of particular provisions in each Act to detect inconsistency.
[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. Thus, the current inquiry has no legislative base and no capacity to affect constitutional corporations generally and, in particular, concerning the relations of such corporations with actual or potential employees.”
(My emphasis)

339 Buchanan J after setting out the conclusions of the Court in NSW v Commonwealth, as to the validity of s 16 of the WR Act, considered the scope of s 16 at pars 45-50 as follows:
“[45] By its terms s 16 of the WR Act declares an intent that the WR Act occupy, to the exclusion of the state Act, (subject only to the exceptions in ss 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 federal 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.
[46] Although neither the state Act or s 146(1)(d) are rendered wholly invalid by the operation of s 109 of the Constitution, invalidity arises inter alia when, and to the extent that, the state Act otherwise operates as a grant of jurisdiction or power in relation to a matter within the field covered by the federal Act.
[47] It is convenient and relevant, for the moment, to concentrate on constitutional corporations and put aside other employers to whom s 6(1) of the federal Act refers. The state 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 state 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 state Act so far as it concerns them.
[49] Subject to presently inapplicable exceptions, the state Act has no valid operation ‘in relation to’ Tristar or any of its employees, or any other constitutional corporations or any of their employees.
[50] Section 146(1)(d), in particular, confers no power on the IRC to inquire into or report on any matters concerning constitutional corporations or their employees. It follows that the minister’s reference was ineffective to engage any jurisdiction or power of the IRC in relation to Tristar or its employees regardless of the description of particular subject matters.” (My emphasis)

340 Whilst there may be some conjecture as to whether there is a material distinction between the views of members of the Court in Tristar, as to the approach to the construction of s 16(1) of the WR Act, it is to be noted above that Gyles J agreed with the substance of the approach taken by both Kiefel and Buchanan JJ. In particular, Gyles J at par 22, highlighted above, in addition to referring to the field of activity of the WR Act as that concerning constitutional corporations and their actual or potential employees, also referred to the invalidity of the NSW legislation to the extent that it affected constitutional corporations generally. With respect, if there is any material difference in the approach taken by the members of the Court, I prefer the approach taken by Buchanan J. In particular, those passages that I have emphasised above, in my view conform with the ordinary and natural meaning of the language used in s 16(1) of the WR Act, as marking out the relevant field of the Commonwealth legislation vis a vis State industrial laws, for the purposes of s 109 of the Constitution (Cth).
341 Importantly in my opinion for present purposes, in the introductory part of s 16(1) of the WR Act, are the words “apply in relation to an employee or employer”, which refer to employee and employer disjunctively, for the purposes of the definitions in ss 5(1) and 6(1) of the WR Act. That is, the scope of the exclusion of State industrial laws that is effected by s 16(1) of the WR Act extends to these laws that would otherwise apply “in relation to” a constitutional corporation, in so far as it employs, or usually employs, an employee or employees.
342 The phrase “in relation to” and “relates to” are, as is well established, phrases of great breadth: Oceanic Life Ltd and Anor v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 at 224-225; See generally Pearce and Geddes Statutory Interpretation in Australia 5th Ed at par 12.7.
343 On this construction of s 16(1) of the WR Act, if correct, any provision of the Act that touches or bears upon a constitutional corporation for the purposes of s 51(xx) of the Constitution (Cth), in terms of the conferring of a function or power on the Commission “in relation to” such a constitutional corporation, as an employer, is, by s 109 of the Constitution (Cth), rendered invalid. That is, s 23(1) of the Act, empowering the Commission to enquire into and deal with an industrial matter, is invalid to the extent that it purports to confer jurisdiction and power on the Commission to enquire into and deal with an industrial matter affecting or relating to a constitutional corporation as an employer or the employees of a constitutional corporation, or those persons who are usually employees of a constitutional corporation, or, for reasons that appear below, were formerly employees of a constitutional corporation. Perhaps save for my reference to former employees, this would appear to be generally consistent with the observations of Steytler P (Pullin J agreeing) in Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254 at pars 12-14, a judgment of the Industrial Appeal Court delivered on 10 December 2008.

Existing Employee and Employer Relationship
344 As noted above it was contended by senior counsel for the applicant that on its proper construction, s 16(1) of the WR Act, in terms of the relevant field of operation for the purposes of the exclusion of the State industrial laws, only extends to extant employee and employer relationships. As the matter the subject of the referral to the Full Bench involves a former employee and employer relationship, although it remains an industrial matter by reason of s 7(1a) of the Act, it is unaffected by s 16(1) of the WR Act, so construed.
345 Given my conclusions above as to the field of coverage of the WR Act, and the disjunctive relationship between “employee” and “employer” in the introductory part of s 16(1), it is strictly unnecessary for me to deal with this submission. This is because in my opinion, on the interpretation which I have placed upon s 16(1), the existence of an extant employment relationship is unnecessary for s 109 of the Constitution (Cth) to invalidate the Act in relation to its application to such a corporation.
346 In any event however, the primary argument as to the construction of “employee” and “employer” in such narrow terms as contended for by the applicant cannot succeed in my view. This conclusion is reached for at least two reasons, leaving aside the disjunctive interpretation I have placed on the meaning to be given to “employee or employer” in s 16(1) of the WR Act.
347 Firstly, as noted above, the Commonwealth Parliament has employed the oft used phrase “in relation to”, as a drafting technique, to link the subject matters of the relevant State industrial laws and the “employee” or “employer” as defined in ss 5 and 6 of the WR Act. Given the notoriously wide breadth of meaning of such a phrase, there would seem to be powerful arguments in support of the contention that a matter that concerns a past employee or employer, would have a sufficient connection with the subject matter of the section, in the sense of there being some “connection” or “relationship”, whether “direct or indirect”: Powers v Maher (1959) 103 CLR 478 at 484-485; O’Grady v Northern Queensland Co Ltd (1990) 92 ALR 213 at 226. There would seem to be no less of a relationship in this context, as to that relating to a prospective employee and employer, within the meaning of ss 5 and 6 of the WR Act.
348 Secondly, I have set out the relevant definitions of “employee” and “employer” under ss 5 and 6 of the WR Act above. Notably, in relation to both, is reference to persons who are “usually employed” and “usually employ” respectively. These provisions in the predecessors to the WR Act have a long history and it was accepted that in times when the Australian Industrial Relations Commission and its predecessors required the existence of a valid interstate industrial dispute to exercise jurisdiction, that the collective relations between employers and employees, including those who usually had such a status, was a required element: Burwood Cinema Ltd v Australian Theatrical and Amusement Employees Association (1925) 35 CLR 528; R v Findlay; Ex parte Commonwealth Steamship Owners Association (1953) 90 CLR 621.
349 More recently however, in the context of proceedings for offences under the WR Act and its predecessors, it has been held that the extended definitions have application such that a person who was formerly an employer may be prosecuted for a breach of s 298K of the WR Act in relation to discrimination against former employees: Australasian Meat Industry Employees Union v Belandra Pty Ltd (2003) 126 IR 165 (and the authorities there cited).
350 For these reasons, the definitions of “employee” and “employer”, when construed in the context of the WR Act as a whole, are not limited to extant employment relationships.

No Exclusion of the Common Law
351 As mentioned already, it is to be accepted that there could be no intention gathered from s 16(1) of the WR Act, to generally exclude the common law. The exclusions are to the prescribed State statutes and this seems reasonably clear from the language of s 16 read as a whole with other parts of the WR Act, in particular s 3, dealing with the principal objects. That is not to say however that a Parliament may not evince an intention to override the common law. Consistent with accepted canons of statutory interpretation, there would need to be a very clear expression of such an intention: Pearce and Geddes at par 5.27.
352 On this basis, s 16(1) should not be construed to exclude the right of an employee to recover a debt due from an employer in a court of competent jurisdiction.
353 Whilst as the foregoing analysis has set out, a s 29(1)(b)(ii) claim under the Act is in essence a common law claim, in that it arises out of the common law contract of employment, the Commission’s jurisdiction to “deal with” such a claim arises not by the operation of the common law, but by the operation of powers conferred by the Parliament in s 23(1) of the Act, empowering the Commission to “enquire into and deal with an industrial matter”. Put another way, the applicant’s common law claim, for a debt due under the contract with her former employer, must still be an industrial matter for the purposes of ss7 and 23(1) of the Act, such that the Commission is authorised to deal with the claim in accordance with s 26(1) of the Act.
354 Viewed in this way, the source of the Commission’s power to deal with the applicant’s claim, is not the common law, from which the claim arises, but the Act, the terms of which, as applicable to a constitutional corporation as defined in s 4 of the WR Act are, for the reasons outlined above, now excluded as an impermissible entry into the field prescribed by s 16(1) of the WR Act, by the operation of s 109 of the Constitution (Cth).
355 I have noted earlier in these reasons that senior counsel for the applicant referred to decisions of Industrial Magistrates of the South Australian Industrial Relations Court in Armanini and Head. I also refer to Jaffer and Dohrmann, which adopted the same approach to s 16(1) of the WR Act, as not excluding the prosecution of money claims under the South Australian legislation, against a constitutional corporation.
356 With due respect, I do not find the approach taken in those decisions to be persuasive. I see no reason in principle why s 14 of the Fair Work Act 1994 (SA), to the extent that it confers jurisdiction on the Court to decide money claims arising under a contract of employment, that do not fall within the Court’s preserved jurisdiction under s 717 of the WR Act, should also not be excluded by s 16(1) of the WR Act, in the same terms as are ss 23(1) and 29(1)((b)(ii) of the Act, as they relate to a constitutional corporation.

Do the Regulations Save Jurisdiction?
357 Reg 1.2(2) of Ch 2 of the Regulations provides as follows:
“1.2 State and Territory laws that are not excluded by the Act — general
(2) 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 relates to compliance with an obligation:
(a) under:
(i) that law; or
(ii) another law of a State or Territory;
which would otherwise be excluded by subsection 16 (1) of the Act; and
(b) in respect of an act or omission which occurred prior to the reform commencement.”

358 The reference to “law of a State or Territory” and “another law of a State or Territory” should be construed as a reference to the written laws of the States and Territories and not the common law of Australia: Lipohar.
359 There are two limbs to reg 1.2(2). The first limb relates to “compliance with an obligation under” the relevant State law, and the second limb refers to an “act or omission” that occurred before the reform commencement that being 27 March 2006.
360 It seems clear that in terms of the first limb of reg 1.2 (2), the relevant obligation with which it deals must arise under the written law of the State concerned, in this case the Act.
361 In connection with this matter, the applicant referred to and relied upon obiter observations of Smith SC in Smith v Albany Esplanade Pty Ltd T/A the Esplanade Hotel (2007) 87 WAIG 509. In this case, when considering the operation and effect of reg 1.2(2) of the Regulations, Smith SC concluded that the combined effect of ss 23(1), 26(1)(a) and 29(1)(b)(ii) of the Act, creates a right for an individual to have such an application determined and there is an obligation on the Commission to deal with such an application. This conclusion was expressed by Smith SC as follows at pars 135-141:
“Although the Commission is empowered to deal with a claim made under s 29(1)(b)(ii) when doing so it exercises its power under s 32 (by referring industrial matters for conciliation). Further, it is to act according to equity and good conscience (s 26(1)) and is not restricted to the specific claim made or to the subject matter of the claim (s 26(2)). In dealing with the process of determining a matter brought under s 29(1)(b)(ii) the Commission is empowered to exercise procedural steps and make substantive orders under s 27 and any orders made must be in the form of an award, order or declaration and follow the process prescribed in ss 34, 35 and 36 of the IR Act.
The relevant part of reg 1.2 of the WRR provides s 16(1) does not apply to a law of a State to the extent to which it relates to compliance with an obligation under that law and in respect of an act or omission which occurred prior to the reform commencement. The issue in this matter is whether a claim for contractual benefits brought under s 29(1)(b)(ii) of the IR Act relates to compliance with an obligation under the IR Act. Immediately following the filing of the claim under s 29(1)(b)(ii) but for the operation of s 16(1) of the WR Act, the Commission is seized with jurisdiction to exercise its powers under s 23(1) and s 27 to deal with the claim pursuant to s 28 and is required to act with due speed pursuant to s 22B.
The expression ‘relates to’ connotes a wide connection between two subject matters...
Although the words ‘relates to’ usually refers to different subjects, these words when used in reg 1.2(2) refer to a connection between the provisions of the IR Act generally and compliance with a provision that creates or raises an obligation under the IR Act.
In my opinion where an application is made under s 29(1)(b)(ii) of the IR Act, a direct relationship is raised between this provision which prima facie creates a right for an individual to have the application dealt with and the obligation on the Commission to deal with the application (being a duty) pursuant to the provisions referred to in paragraphs [132] and [136] of these reasons.
The additional requirement of reg 1.2(2) which must be invoked to save a contractual benefit claim being excluded by s 16(2) of the WR Act is that the obligation must be ‘in respect of’ an act or omission which occurred prior to the reform commencement. The learned authors of Statutory Interpretation in Australia (6th ed) point out at [12.7] at page 359 that the words ‘in respect of’ have a like effect to ‘in relation to’, ‘relating to’, ‘related to’ and ‘with respect to’. In this matter the obligation on the Commission to deal with the Applicant's claim has a direct relationship with an act or omission which occurred prior to the reform commencement. The act or omission in this matter is the act of the Applicant's employment coming to an end on 2 March 2006. The reform referred to in reg 1.2(2) commenced on 27 March 2006.”

362 With respect, I disagree with this approach. The applicant’s claim in the present case “arises under” her former common law contract of employment with the respondent. In my view, the phrase “compliance with an obligation”, in the context of reg 1.2(2) should be taken to mean the performance of a legal requirement by or for the benefit of a person, imposed by the State law concerned. For example, this could include an entitlement, other than long service leave, under the Minimum Conditions of Employment Act 1993 (WA), that is not otherwise preserved by ss 16(2) or (3) of the WR Act.
363 In this case, s 29(1)(b)(ii) of the Act only refers to who may refer contractual claims to the Commission, in terms of standing to commence proceedings. The statute is not the source of the entitlement and does not, in turn, create or impose any obligation on the parties, in relation to the contract. As noted above, the source of the Commission’s power to “enquire into and deal with” the industrial matter so referred, is s 23(1) of the Act.
364 In my opinion, there is no “obligation” imposed by or under the Act, in the requisite sense, in relation to such a claim. In my view, reg 1.2(2) refers to a legal requirement imposed upon, or for the benefit of, a person, by the relevant State law, in relation to a fact or circumstances in existence prior to the reform commencement on 27 March 2006. These requirements are not met in the present matter.

Section 106 Constitution
365 The final issue that falls for consideration is whether s 106 of the Constitution (Cth) has application and if it does what effect it has on the matters to be determined by the Full Bench. Section 106 of the Constitution (Cth) provides for the saving of the Constitutions of the respective States as at federation and is in the following terms:
“Saving of Constitutions
106 The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.”

366 The applicant’s submission in relation to this issue was that if the position of the respondent is correct and s 16(1) of the WR Act precludes the Commission from hearing a common law enforcement claim, then the issue arises as to whether the Commonwealth Parliament has the power to prevent a court of the State from exercising this jurisdiction.
367 In connection with this submission, senior counsel for the applicant said that there can be no doubt that the Commonwealth Parliament may dictate what law is to apply in a particular area of federal competence, and exclude State law from entering that field: NSW v Commonwealth. However, it was also contended that accepting this to be the case, it is a different proposition entirely for the Commonwealth Parliament to prescribe that the relevant law is unaffected, but that a State court cannot hear and determine that law.
368 In this connection, reference was made by the applicant to Re Tracey in which Mason CJ, Wilson, Brennan, Dawson and Toohey JJ held that relevant parts of the Defence Force Discipline Act 1982 (Cth), purporting to oust the general criminal jurisdiction of State courts, were invalid.
369 In this connection, in particular Brennan and Toohey JJ said at 574:
“Ouster of the jurisdiction of civil courts
Sub-sections (3) and (5) of s.190 purport to withdraw from the civil courts the jurisdiction otherwise vested in them to try a civil court offence. By these sub-sections, defence members and defence civilians are preserved from what was submitted by the Commonwealth to be double jeopardy. However that may be, provisions which purport to prohibit the exercise of the ordinary criminal jurisdiction vested in State courts by State law can find no support in the Constitution. State courts are an essential branch of the government of a State and the continuance of State Constitutions by s.106 of the Constitution precludes a law of the Commonwealth from prohibiting State courts from exercising their functions. It is a function of State courts to exercise jurisdiction in matters arising under State law. Although, by force of s.109, a law of the Commonwealth prevails over an inconsistent State law, sub-ss (3) and (5) of s.190 do not operate in that way. These sub-sections do not affect the substantive law; they purport to prohibit its enforcement. As these sub-sections cannot be read down so as to restrict their application to federal courts, they are invalid.”

370 Accepting for the purposes of the applicant’s argument, without deciding the matter on this occasion, that the Commission, as a court of record by s 12 of the Act, is a State court for the purposes of s 106 of the Constitution (Cth), does s 106 operate to insulate the Commission’s contractual benefits jurisdiction in the present case?
371 In my view, the operation of s 106 of the Constitution (Cth) is qualified by the operation and effect of s 109 of the Constitution (Cth). That is, in a case such as the present, where a valid federal law establishes a field of operation, and a State law impermissibly seeks to enter that field, and thereby precludes a State court from exercising jurisdiction under the relevant State law which is invalid to the extent of the inconsistency, such interference is not a result of a bare attempt by the Commonwealth to prevent a State court from exercising its jurisdiction, rather its jurisdiction is invalidated because the Commonwealth law overrides the State law under s 109 of the Constitution (Cth).
372 This issue, adverted to in Re Tracey, was considered by the High Court in Truong v The Queen (2004) 223 CLR 122. In this case, in referring to Re Tracey, Gummow and Callinan JJ said at 105:
“In Re Tracey; Ex parte Ryan (105), Mason CJ, Wilson and Dawson JJ explained that a federal law which denies the imposition of criminal liability, otherwise justiciable in the non-federal jurisdiction of the courts of a State, ‘upon defence members or defence civilians’ might, depending upon its terms, be supported by s 51(vi) and (xxxix) of the Constitution. Such a law would prevail, by operation of s 109, over relevant State laws founding the jurisdiction of the State courts. In that way there would be effective ‘interference’ with the exercise by the State courts of their general criminal jurisdiction. However, their Honours held that the federal law in question in Tracey was not supported by s 51 of the Constitution and so s 109 of the Constitution was not engaged.”

373 In my opinion, this situation applies in the present context. The Commission’s jurisdiction in respect of contractual benefits claims brought against a constitutional corporation as the employer is “interfered with” by the operation of s 109 of the Constitution (Cth), prohibiting the Commission from exercising its functions in relation to such matters.
374 For these reasons I do not see s 106 of the Constitution (Cth), if it has application, as operating in the manner contended by the applicant.

Conclusion
375 In light of the foregoing I would answer the two questions referred to the Full Bench as follows:
1. Yes
2. No

376 I agree with the orders proposed.
377 I also join with the Acting President in recording the appreciation of the Full Bench for the assistance of senior counsel for the applicant, who, through arrangements made with the Western Australian Bar Association, appeared pro bono in these proceedings.
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