2021 WAIRC 00659
APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER U 16/2021 GIVEN ON 17 SEPTEMBER 2021
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2021 WAIRC 00659

CORAM
: CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T EMMANUEL

HEARD
:
WEDNESDAY, 15 DECEMBER 2021

DELIVERED : THURSDAY, 23 DECEMBER 2021

FILE NO. : FBA 6 OF 2021

BETWEEN
:
HSIAOHUA (XANTHE) HSU
Appellant

AND

FRASER SUITES PERTH
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER T WALKINGTON
CITATION : 2021 WAIRC 00511
FILE NO : U 16 OF 2021

Catchwords : Industrial Law (WA) – Unfair dismissal – Appeal against decision to dismiss for want of jurisdiction – No error in dismissing application – s 109 Commonwealth Constitution – Inconsistency between Fair Work Act 2009 (Cth) and Industrial Relations Act 1979 (WA)
Legislation : Commonwealth Constitution s 13, s 51(xx), s 51(xxxvii), s 109
Fair Work Act 2009 (Cth) s 383, s 12, s 14, s 14(1)(a), s 26, s 26(1), s 27, s 27(1)(d), s 27(2), s 27(2)(c), s 27(2)(o)
Industrial Relations Act 1979 (WA) s 23(h), s 23A, s 29(b)(i), s 29(1)(b)(ii), s 49(4)
Occupational Safety and Health Act 1984 (WA)
Workplace Relations Act 1996 (Cth) s 16, s 16(1), s 16(1)(a), s 16(2), s 16(3)
Result : Appeal dismissed
REPRESENTATION:
Counsel:
APPELLANT : MR C NARAYANAN AS AGENT
RESPONDENT : MS M BROWN OF COUNSEL
Solicitors:
RESPONDENT : PRAGMA LAWYERS

Case(s) referred to in reasons:
Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491
Stylianou v Country Realty Pty Ltd as trustee for The Marcelli Family [2010] WAIRC 01074; (2010) 91 WAIG 2029
McLennan v McCallum [2010] WASCA 45
Momcilovic v The Queen [2011] HCA 34; (2011) 280 ALR 22
New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1
Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76
Shire of Ravensthorpe v John Patrick Galea [2009] WAIRC 01149; (2009) 89 WAIG 2283
Triantopoulos v Shell Company of Australia Ltd [2011] WAIRC 00004; (2011) 91 WAIG 67
Tristar Steering and Suspension Ltd v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104
Wenn v AttorneyGeneral (Vic) [1948] HCA 13; (1948) 77 CLR 84
Reasons for Decision
THE FULL BENCH:
1 The appellant, Ms Hsu, worked for the respondent, Frasers Perth, for slightly over six weeks as a fulltime Guest Service Agent. She resigned from that employment on 23 January 2021. She alleges that she was constructively dismissed as her resignation was induced by bullying towards her by her coworkers.
2 Ms Hsu commenced an unfair dismissal application in the Commission. It was common ground and uncontroversial that Frasers Perth was a constitutional corporation and a national system employer. However, Ms Hsu was unable to pursue an unfair dismissal claim under the Fair Work Act 2009 (Cth) because she had not served the sixmonth minimum employment period stipulated in s 383 of the FW Act and therefore was not protected from unfair dismissal under the provisions of the FW Act.
3 Exclusion from unfair dismissal claims based on a minimum employment period is not part of the unfair dismissal regime under the Industrial Relations Act 1979 (WA).
4 It is for that reason that Ms Hsu pursued her claim in the Commission.
5 Frasers Perth objected to Ms Hsu’s unfair dismissal application on the basis that it was a national system employer and therefore the FW Act ousted the Commission’s jurisdiction.
6 In a decision delivered on 17 September 2021, Walkington C upheld Frasers Perth objection and dismissed Ms Hsu’s unfair dismissal application for want of jurisdiction.
7 Ms Hsu appeals from Walkington C’s decision on two grounds. The first ground alleges that Walkington C addressed the wrong questions in considering the jurisdictional issue. The second ground alleges error on the part of the learned Commissioner in finding inconsistency for the purposes of s 109 of the Commonwealth Constitution between the FW Act and the IR Act.
8 It is now generally regarded as settled that the Commission has no jurisdiction to determine unfair dismissal claims by employees of constitutional corporations. However, given the grounds of appeal raised, the Full Bench is required in this appeal to determine whether the FW Act operates to exclude the Commission’s jurisdiction in Ms Hsu’s claim. This involves consideration of whether there is inconsistency for the purposes of s 109 of the Commonwealth Constitution between the IR Act and the FW Act and requires consideration of which provisions of the FW Act create inconsistency.
9 For the reasons which follow, we conclude that the learned Commissioner was correct to find the Commission had no jurisdiction to determine Ms Hsu’s claim and was correct to dismiss it. The appeal accordingly should be dismissed.
The reasons for decision
10 After setting out the factual background to Ms Hsu’s application, at [4] of the decision at first instance, the learned Commissioner articulated the following two questions to be decided:
(a) Whether the requirement to be employed for a minimum period in the FW Act operates to enable an application to the Commission; and if it does not
(b) Whether Ms Hsu’s employer, Frasers Perth is a trading corporation and a national system employer.
11 The learned Commissioner then set out the legal principles and relevant legislation. The Commission set out the text of s 109 of the Commonwealth Constitution which concerns inconsistency between a State law and a law of the Commonwealth, and of s 26 of the FW Act. She outlined the three recognised categories of inconsistency for the purpose of s 109 at [7]:
The High Court has established that where there is an inconsistency in legislations of the Commonwealth and State, the Commonwealth law prevails where:
(a) It is impossible to obey both laws in R v Brisbane Licensing Court: Ex parte Daniell (1920) 28 CLR 23.
(b) One law purports to confer a legal right, privilege or entitlement that the other law purports to take away or diminish in Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151.
(c) The Commonwealth law evinces a legislative intention to ‘cover the field’ and a State law also operates in that same field in Dickson v The Queen (2010) 241 CLR 491, 502.
12 The learned Commissioner, at [9]  [12] went on to observe:
The language of the FW Act falls into the third category established by the High Court and is a Commonwealth law that evinces a legislative intention to ‘cover the field’ and prevails over a State law that also operates in that same field.
Section 14(1)(a) of the FW Act defines a national system employer as a constitutional corporation so far as it employs or usually employs an individual and s 13 of the FW Act defines a national system employee as an individual employed by a national system employer. Section 12 of the FW Act refers to paragraph 51(xx) of the Constitution which defines constitutional corporations as corporations which are trading, or financial corporations formed within the limits of the Commonwealth.
The Western Australian Industrial Appeal Court established in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254; (2008) 89 WAIG 243 (Lawrence) that in respect of constitutional corporation employers and those they employ, the IR Act is inconsistent and the FW Act prevails.
Furthermore in Lawrence, the Industrial Appeal Court set out the principles to be applied by the Commission when considering whether an entity is a trading corporation [68]:…
13 The learned Commissioner noted Ms Hsu’s contention that there is a gap in the FW Act because of the minimum period of employment, so that employees with less than the minimum period of employment can access relief through State laws. The Commission rejected this contention. In doing so, she stated at [14]  [15]:
This contention is not accepted. The FW Act expressly requires that an employee has completed a minimum of six months employment. It is a precondition to qualify for the protection from unfair dismissal. The IR Act does not prescribe this requirement. The provisions of the Commonwealth law and the provisions of the State law are different and inconsistent. The Commonwealth law is not absent and there is an inconsistency. The FW Act prevails over the State IR Act for national system employers and employees.
Section 26 of the FW Act operates to apply to all national system employees and national system employers and excludes the provisions of the IR Act.
14 The learned Commissioner then went on to consider the question of whether the respondent was a trading corporation, concluding that it was on the basis of the evidence of Frasers Perth’s general manager, attaching an annual financial report and describing the activities of Frasers Perth as being the offering of accommodation, conference, food and drink and event management services, a restaurant and a bar, for commercial purposes and for the purpose of profit.
15 No challenge is made in this appeal to the learned Commissioner’s findings that Frasers Perth is a trading corporation and is therefore a national system employer for the purposes of ss 14 and 26 of the FW Act.
The grounds of appeal
16 Ms Hsu’s husband acted as her agent in these proceedings. She is not legally represented. The grounds of appeal therefore reflect the fact that they have been drafted by a layperson and do not conform with the way grounds of appeal are more traditionally expressed when drafted by lawyers. Nevertheless, it is possible to discern two grounds of appeal, being:
(a) that the learned Commissioner, by posing the questions she did, took into consideration irrelevant considerations and failed to take into consideration relevant considerations in determining the question of jurisdiction; and
(b) that the learned Commissioner erred in law in her application of the test of inconsistency for the purpose of s 109 of the Commonwealth Constitution.
17 Ms Hsu’s submissions filed prior to the appeal raise additional points about the general injustice and unfairness of leaving employees who have resigned because they were bullied without a remedy. These submissions do not form or inform any grounds of appeal. The appeal cannot be decided based on a general sense of what is or is not fair. The Full Bench must apply the law as made by the Parliament and as contained in the Commonwealth Constitution.
18 Ms Hsu’s arguments on the appeal overlapped and reflected the arguments she made at the first instance hearing, which was essentially that she was not protected from unfair dismissal by the FW Act because she had not served the minimum employment period set out in s 383 of the FW Act. However, no such qualifying period applies for unfair dismissal claims under the IR Act and therefore she would ordinarily be entitled to seek redress under the IR Act. As Western Australia has not referred its industrial relations powers to the Commonwealth, the IR Act is only excluded by the FW Act if there is inconsistency for the purposes of s 109 of the Commonwealth Constitution and then only to the extent of the inconsistency. Because the FW Act does not contain provisions enabling redress in Ms Hsu’s case, but the IR Act does, there is no inconsistency, and the IR Act can apply and have effect harmoniously with the FW Act.
19 Ms Hsu sought to raise a new argument on appeal, which she had not raised in the matter at first instance and did not form part of the grounds of appeal. The new argument was that ss 27(1)(d) and 27(2)(c) of the FW Act in conjunction with the obligations under the Occupational Safety and Health Act 1984 (WA) to maintain safe workplaces show that Parliament would not have intended that national system employers be treated with impunity in relation to employees who were driven into resigning by workplace bullying.
20 Leaving to one side whether Ms Hsu can raise a new matter on appeal, which ability is restricted by s 49(4) of the IR Act and in accordance with the principles set out in McLennan v McCallum [2010] WASCA 45 [80]  [88], these matters cannot advance the grounds of appeal in any event. Ms Hsu’s claim was not made under the OSH Act. Her claim did not invoke the Commission’s jurisdiction under the OSH Act. Rather, her application to the Commission sought a remedy under ss 23(h), 23A and 29(b)(i) of the IR Act. The submission simply has no logical place within the grounds of appeal nor Ms Hsu’s claim more generally.
21 Neither Ms Hsu, nor her agent, attended at the hearing of the appeal. Prior to the hearing her agent advised the Commission that he would not be in attendance and acknowledged that the appeal hearing would proceed in his and Ms Hsu’s absence. He advised that Ms Hsu would be relying upon her written submissions and materials filed in advance of the hearing in addition to a “Final Written Submission” provided on the day of the appeal hearing. The Final Written Submission was received without objection from Frasers Perth.
Ground 1: What was the learned Commissioner required to decide and what was decided?
22 Ms Hsu submits that the two questions the learned Commissioner posed at [4] of the reasons for decision at first instance “had never been in contention between the parties and were for all intents and purposes common ground”.
23 Ms Hsu further submits that the correct questions the learned Commissioner should have asked herself were:
i. Has the Parliament of Western Australia referred its industrial relations power to the Parliament of the Commonwealth under s 51 (xxxvii) of the Constitution, and if so, what evidences the claim?
ii. What is the extent of the inconsistency (if any) between the relevant provision/s of the FW Act and the IR Act?
iii. Do the FW Act and the IR Act respectively contain adequate protection provisions (including employment reinstatement in suitable situations) for employees who are bullied in the workplace resulting in constructive unfair dismissal?
iv. Do the FW Act and the IR Act respectively contain adequate protection provisions for employees during the first 6 months of their employment?
24 It could be said that the way the learned Commissioner articulated the first question to be determined at [4] did not expressly reveal each issue or step in the analysis of the jurisdictional question. However, reading the question in the context of the reasons as a whole, it is apparent that:
(a) The way the learned Commissioner formulated the question appears to be the result of her attempt to capture the “essence” of Ms Hsu’s arguments in relation to the jurisdictional issues;
(b) It does fairly capture the essence of Ms Hsu’s arguments; and
(c) The learned Commissioner proceeded to consider the correct questions and steps in the reasoning that follows, ultimately correctly answering the question by concluding at [15]:
Section 26 of the FW Act operates to apply to all national system employees and national system employers and excludes the provisions of the IR Act.
25 If there is a misunderstanding of the issues for determination embedded in the learned Commissioner’s formulation of the first question, in our view it reflects the misperception which Ms Hsu had in relation to the application of s 109 of the Commonwealth Constitution and the test of inconsistency. Fundamentally, Ms Hsu was under a misapprehension that the gap created by the FW Act’s exclusion from unfair dismissal claims of employees who had not served the minimum employment period was a lynchpin or touchstone for determining whether there was inconsistency under s 109. In this, she was mistaken. Accordingly, the questions that she poses as the “correct” questions, also unravel and are not correct.
26 Ms Hsu’s first proposed question is whether the Parliament of Western Australia referred its industrial relations power to the Parliament of the Commonwealth under s 51 (xxxvii) of the Commonwealth Constitution. The correct and uncontroversial answer to that question is “no”. It is only because the answer is “no” that the question of inconsistency under s 109 of the Commonwealth Constitution arises. The learned Commissioner implicitly finds so by proceeding in the reasons for decision to consider s 109 inconsistency.
27 Ms Hsu correctly identifies the next question, following from the fact that there has not been a referral of industrial relations powers, to be “What is the extent of the inconsistency (if any) between the relevant provision/s of the FW Act and the IR Act?” As alluded to above, the Commission ultimately answered this question by reference to s 26 of the FW Act.
28 However, when Ms Hsu poses the questions “Do the FW Act and the IR Act respectively contain adequate protection provisions (including employment reinstatement in suitable situations) for employees who are bullied in the workplace resulting in constructive unfair dismissal?” and “Do the FW Act and the IR Act respectively contain adequate protection provisions for employees during the first 6 months of their employment?” she is overlooking the source of inconsistency, which is s 26 of the FW Act, as set out under ground 2 below.
29 As for the second question, whether Frasers Perth was a trading corporation and a national system employer, because the Commission was considering the question of its own jurisdiction to determine Ms Hsu’s claim, that one or other issues were common ground between the parties does not absolve the Commission from itself asking the question and being satisfied of the relevant jurisdictional fact. In the decision of the Full Bench of the Commission in Shire of Ravensthorpe v John Patrick Galea [2009] WAIRC 01149; (2009) 89 WAIG 2283, Smith SC, as she then was, said at [188]  [191]:
By operation of s 109 of the Constitution this Commission does not have jurisdiction to hear and determine claims for unfair dismissal where the employee in question is employed by a constitutional corporation. The Commission must have material before it from which it can be legitimate to draw a conclusion as to whether it has jurisdiction to hear and determine a claim. No question of jurisdiction can be conceded at first instance or conferred on a court or tribunal when it does not have it: SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760.
Whether the onus of proof arises and whether it lies on a party in a matter where an issue arises whether an employer is a constitutional corporation was recently considered by the Full Bench in Guest v Kimberley Land Council [2009] WAIRC 00668; (2009) WAIG 2063. Acting President Ritter (with whom Scott and Mayman CC agreed) held that the question of whether an aboriginal land corporation is a constitutional corporation did not involve an onus of proof but is a factual enquiry in which it is the first duty of a statutory court or tribunal to decide whether it has jurisdiction [71], [75  82]. As Brennan J in Gerhardy v Brown (1985) 159 CLR 70 said:
When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants. When the validity of a State law is attacked under s 109 of the Constitution and the scope of the Commonwealth law with which it is thought to be inconsistent depends on matters of fact (which I shall call the statutory facts) the function of a court is analogous to its function in determining the constitutional validity of a law whose validity depends on matters of fact (141  142).
30 Thus, while it does appear from the parties’ respective submissions at first instance that there was no controversy as between them that Frasers Perth was a trading corporation, this did not remove the requirement for the learned Commissioner to decide that issue for herself on the facts before her. It was entirely proper for this second question to be posed, and answered, by the learned Commissioner.
31 Of course, because the ultimate finding on this question, that Frasers Perth is a trading corporation and a national system employer, was conceded by Ms Hsu, this ground of appeal could have no bearing on the outcome of Ms Hsu’s appeal in any event.
32 We would therefore dismiss ground 1 of the appeal.
Ground 2: Did the learned Commissioner err in law in the application of the test of inconsistency?
33 Ms Hsu submits that the learned Commissioner erred in her interpretation of s 109 of the Commonwealth Constitution and its application to the IR Act and the FW Act. She submits the learned Commissioner:
…
…failed to understand let alone correctly interpret and apply the words “to the extent of the inconsistency” in the section to the different and contrasting factual scenarios to which both Acts expressly or impliedly referred and applied, and in so doing, she failed to legally distinguish between the two.
Particulars
i. The IR Act, inter alia, includes provisions for providing express/implied protection (including employment reinstatement in suitable situations) to persons suffering from constructive unfair dismissals that arise out of harmful bullying in the workplace.
ii. The FW Act does not provide for such protection and therefore to that extent, there is no inconsistency and therefore there can be no invalidation under s 109 of those provisions of the IR Act providing such protection.
iii. Furthermore, to force an invalidation of the relevant State law through the operation of s 109 would clearly render workers who are bullied to the point they are compelled to selfterminate their employment vulnerable and susceptible to serious abuse by their fellow employees and their employers. Clearly, producing such injustice could never have been the intention of the framers of the Constitution or the Federal and State Parliaments when they made the respective provisions.
iv. The IR Act, inter alia, includes provisions for providing express/implied protection to persons suffering from unfair dismissals even where they have been employed for less than 6 months.
v. The FW Act does not provide for such protection but in fact only protects employees from unfair dismissal if they have “completed a period of employment” of at least 6 months or more. And therefore to that extent of employment of less than 6 months, there is no inconsistency and therefore there can be no invalidation under s 109 of those provisions of the IR Act providing such protection.
vi. Again, to force an invalidation of the relevant State law through the operation of s 109 would clearly render workers who are employed for less than 6 months clearly vulnerable and susceptible to serious abuse by their employers. And again, producing such injustice could never have been the intention of the framers of the Constitution or the Federal and State Parliaments when they made the respective provisions.
…
34 Section 109 of the Commonwealth Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
35 Ms Hsu’s submission is, in essence, that the fact that the FW Act does not provide her, and employees who have not served the minimum employment period, with a remedy for unfair dismissal, but the IR Act does, means that the two statutes are not inconsistent. She submits that the FW Act and the IR Act are not “on all fours” with each other and accordingly, the FW Act does not totally cover the field and create inconsistency. If not inconsistent, the IR Act operates and applies. The Commission has jurisdiction.
36 The problem with Ms Hsu’s arguments is it focuses on s 109 of the Commonwealth Constitution without any regard to the express terms of the FW Act.
37 There can be no question that the scope of the IR Act’s application has been radically restricted by the FW Act. That is because s 26 of the FW Act says that it is intended to apply to the exclusion of all State and Territory laws insofar as they would otherwise apply to corporations which fall within the meaning of s 51(xx) of the Commonwealth Constitution. Section 26(1) of the FW Act is in clear terms. It provides:
(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.
(2) A State or Territory industrial law is:
(a) a general State industrial law; or
(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:
(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);
(ii) providing for the establishment or enforcement of terms and conditions of employment;
(iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;
(iv) prohibiting conduct relating to a person’s membership or nonmembership of an industrial association;
(v) providing for rights and remedies connected with the termination of employment;
(vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or
(c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or
(d) a law of a State or Territory 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 or comparable value; or
(e) a law of a State or Territory 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; or
(f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or
(g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or
(h) either of the following:
(i) a law that is a law of a State or Territory;
(ii) an instrument of a legislative character made under such a law;
that is prescribed by the regulations.
(3) Each of the following is a general State industrial law:
(a) the Industrial Relations Act 1996 of New South Wales;
(b) the Industrial Relations Act 1999 of Queensland;
(c) the Industrial Relations Act 1979 of Western Australia;
(d) the Fair Work Act 1994 of South Australia;
(e) the Industrial Relations Act 1984 of Tasmania.
(4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:
(a) all employers and employees in the State or Territory; or
(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.
For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.
38 As the learned Commissioner correctly stated, one approach to the question of whether a Commonwealth law is inconsistent with a State law for the purpose of s 109 is to assess whether the terms, nature or subject matter of the Commonwealth law evinces an intention that it “covers the field”, that is, that it completely, exhaustively and exclusively states the law governing the particular matter: Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 at [14] and Momcilovic v The Queen [2011] HCA 34 (2011); (2011) 280 ALR 22 at [244].
39 It is s 26 of the FW Act which establishes the field against which the s 109 inconsistency is assessed. Section 26 is in terms which indicate that the FW Act is intended to “cover the field” of industrial relations concerning national system employers and national system employees, subject only to limited exceptions.
40 The limited exceptions are set out in s 27:
(1A) Section 26 does not apply to any of the following laws:
(a) the AntiDiscrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the AntiDiscrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the AntiDiscrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the AntiDiscrimination Act of the Northern Territory.
(1) Section 26 does not apply to a law of a State or Territory so far as:
(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or
(c) the law deals with any nonexcluded matters; or
(d) the law deals with rights or remedies incidental to:
(i) any law referred to in subsection (1A); or
(ii) any matter dealt with by a law to which paragraph (b) applies; or
(iii) any nonexcluded matters.
Note: Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.
(2) The nonexcluded matters are as follows:
(a) superannuation;
(b) workers compensation;
(c) occupational health and safety;
(d) matters relating to outworkers (within the ordinary meaning of the term);
(e) child labour;
(f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;
(g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 22 to long service leave;
(h) leave for victims of crime;
(i) attendance for service on a jury, or for emergency service duties;
Note: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.
(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;
(k) the following matters relating to provision of essential services or to situations of emergency:
(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);
(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);
(l) regulation of any of the following:
(i) employee associations;
(ii) employer associations;
(iii) members of employee associations or of employer associations;
(m) workplace surveillance;
(n) business trading hours;
(o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;
(p) any other matters prescribed by the regulations.
41 Section 26(1) is relevantly in substantively the same terms as s 16(1) of the FW Act’s predecessor legislation, the Workplace Relations Act 1996 (Cth). Section 16(1) was also expressed to exclude the application of State industrial laws as they would otherwise apply to national system employers and national system employees.
42 The validity of s 16 of the WR Act, (but not the scope of its field of coverage) was decided by the High Court in New South Wales v Commonwealth (2006) 231 ALR 1: [365]  [372] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
43 Western Australia’s AttorneyGeneral argued in that case that the Commonwealth had attempted, by s 16 of the WR Act, to manufacture inconsistency for the purpose of s 109 of the Commonwealth Constitution to attempt to take the “covering the field” test beyond what s 109 permits. The AttorneyGeneral pointed to examples where the State law was said to be excluded, even though the Commonwealth had not legislated in relation to those matters, or where there was no corresponding Commonwealth law and no substantive regulation of the subject in the WR Act. And so, it was argued, s 16 was to be characterised as a “bare exclusion of State law” rather than a law that was to cover the field of industrial relations for the purpose of the test of s 109 inconsistency. Inconsistency could not arise from a bare exclusion of State law.
44 These arguments were rejected by the High Court. The majority preferred the Commonwealth’s contention 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.”: [369]. The Commonwealth had 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)).” At [370] the High Court accepted the Commonwealth’s submissions, including that on the correct construction of s 16(1), the Commonwealth chose to exclude State law in relation to national system employers and national system employees as defined. The joint reasons of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ draw support from Wenn v AttorneyGeneral (Vic) [1948] HCA 13; (1948) 77 CLR 84 and conclude:
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, 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. 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.
45 In Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76, the Full Bench was required to consider the scope of s 16(1) of the WR Act, and whether it excluded the Commission’s jurisdiction to enquire into and deal with a claim for denied contractual benefits referred under s 29(1)(b)(ii) by an employee or former employee of a constitutional corporation. The Acting President said at [197] – [200]:
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.
…
Adopting of the expressions of either Kiefel J or Buchanan J [in Tristar Steering and Suspension Ltd v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104] 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)).
46 In Tristar Steering and Suspension Ltd v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104, Kiefel J said at [11] and [16]:
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 Metters Ltd [1926] HCA 6; (1926) 37 CLR 466 at 489; Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 at 483.
…
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 s16 by its provisions which concern the relationship between employers and employees, where the former are constitutional corporations…
47 It was essentially on that same basis that his Honour Ritter AP in Saldana concluded that s 16(1) of the WR Act did exclude the Commission’s jurisdiction.
48 The other members of the Full Bench also followed the decision in Tristar, in reaching the same conclusion as the Acting President as to the scope of s 16(1) of the WR Act. Commissioner Kenner, as he then was said at [341]  [343]:
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.
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 224225; See generally Pearce and Geddes Statutory Interpretation in Australia 5th Ed at par 12.7.
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 1214, a judgment of the Industrial Appeal Court delivered on 10 December 2008.
49 The current provisions of the FW Act, particularly s 27(2)(o) make it clear that the Commission’s denied contractual benefits claims jurisdiction which was the subject of consideration in Saldanha, is now a “nonexcluded matter”: see Stylianou v Country Realty Pty Ltd as Trustee for the Marcelli Family [2010] WAIRC 01074; (2010) 91 WAIG 2029 and Triantopoulos v Shell Company of Australia Ltd [2011] WAIRC 00004; (2011) 91 WAIG 67. However, the reasoning in Saldhana concerning the scope of s 16(1) remains persuasive, and applicable to s 26 of the FW Act as it concerns unfair dismissal claims.
50 Accordingly, s 26 must be regarded as a Commonwealth law that has the effect of covering the field in respect of relations of national system employees and national system employers, as was found in Saldanha at [197], the effect of which is that the FW Act operates to the exclusion of the IR Act in relation to claims arising from the termination of employment by a national system employer of a national system employee.
51 It should be noted that while the learned Commissioner ultimately correctly found the Commission lacked jurisdiction as a result of the operation of s 26, she does appear to have momentarily at [14], entertained Ms Hsu’s misguided approach of looking for inconsistency as between specified provisions of the FW Act and the provisions of the IR Act, but concluded no inconsistency arose in that analysis. To the extent the learned Commissioner did so, she was in error. However, it makes no difference to the outcome of this appeal.
Conclusion
52 It is now beyond doubt that the FW Act ousts the Commission’s jurisdiction in relation to national system employers and national system employees within the terms of s 26 and subject to the exceptions in s 27 of the FW Act. It is not to the point that there may be differences in the operation of specific or particular provisions. Inconsistency is not found by comparing the application of the various provisions of the FW Act and the IR Act, but rather is a result of the express exclusion contained in the FW Act of the operation of the IR Act, to the extent that it applies to national system employees and national system employers. Accordingly, Ms Hsu’s appeal must be dismissed.