REFERENCE OF DISPUTE - PAY ETC - S.28(2) - OSH ACT 1984

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00216

DELIVERED : Wednesday, 19 April 2023

FILE NO. : OSHT 7 OF 2021

Applicant

PATRICK STEVEDORING HOLDINGS PTY LTD

Respondent

ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Intervener

CatchWords : Jurisdiction to hear and determine application – whether employees of national system employers may refer a matter to the Tribunal – ss 26 and 28 of the Occupational Safety and Health Act 1984 (WA) – ss 19, 26, 27 and 474 of the Fair Work Act 2009 (Cth) – refusal to work – concerns for health and safety – industrial action – entitlement to payment

Legislation : Australian Constitution

  Corporations Act 2001 (Cth)

  Fair Work Act 2009 (Cth)

  Judiciary Act 1903 (Cth)

  Occupational Health and Safety Act 2004 (Vic)

  Occupational Safety and Health Act 1984 (WA)

  Workplace Relations Act 1996 (Cth)

Result : Jurisdiction found

Representation:

Applicant : Mr M Ritter SC (of counsel)

Respondent : Ms H Millar (of counsel)

Intervener : Mr R Andretich (of counsel)

Case(s) referred to in reasons:

Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union [2017] FCA 167

Clubb v Edwards and Another [2019] HCA 11; (2019) 267 CLR 171

Colvin v Bradley Bros Pty Ltd [1943] HCA 41; (1943) 68 CLR 151

Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491

Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508

Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289

Mineralogy Pty Ltd v Western Australia [2021] HCA 30; (2021) 393 ALR 551

Ponzio v B & P Caellie Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543

Re Judiciary and Navigation Acts (1921) 29 CLR 257

R v Licensing Court of Brisbane: Ex parte Daniell [1920] HCA 24; (1920) 28 CLR 23

Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508

Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 363 ALR 188

Zhang v Commissioner of the Australian Federal Police [2021] HCA 16; (2021) 273 CLR 216

Reasons for Decision

1         Mr Carradus is employed by Patrick Stevedoring Holdings Pty Ltd (Patrick) as a stevedore at the Port of Fremantle, Western Australia (the Fremantle Terminal). On 27 July 2020 Mr Carradus, along with several other stevedores, ceased working on crane Z8 due to concerns for their safety because of a crack that had been found in the rail of crane Z8. Later that day, Patrick advised Mr Carradus that he would be stood down and four hours pay would be deducted from his salary. Patrick assert that the deduction was required under the provisions of the Fair Work Act 2009 (Cth) (FW Act) because Mr Carradus had refused to perform duties as directed and therefore had engaged in industrial action.

2         Mr Carradus contends that he refused to work in accordance with s 26 of the Occupational Safety and Health Act 1984 (WA) (OSH Act) and in these circumstances, pursuant to s 28(1) he is entitled to be paid and has applied to the Occupational Safety and Health Tribunal (Tribunal) for an order pursuant to s 28(2) for the salary that Patrick has deducted.

3         Patrick oppose the application and say it ought to be dismissed on the basis that the Tribunal lacks jurisdiction to determine the application. Patrick contends that sections 26(1) and 28(1)-(2) of the OSH Act are inoperative because they are directly inconsistent with a Commonwealth law, namely Part 3-3, Division 9 of the FW Act.

Key Issues

4         Patrick asserts the Tribunal lacks jurisdiction because the OSH Act is inconsistent with the FW Act. The respondent contends that sections 26(1) and 28(1)-(2) of the OSH Act are inoperative because they are directly inconsistent with a Commonwealth law, namely Part 3-3, Division 9 of the FW Act.

5         Mr Carradus disputes Patrick’s assertion that the Tribunal lacks jurisdiction and submits that s 26 of the OSH Act and s 28 of the OSH Act are not directly inconsistent with the FW Act.

6         Secondly, Patrick contends that the FW Act intends to 'cover the field’ and regulate exclusively, and that this being the case, s 109 of the Australian Constitution (Constitution) renders s 28(1) of the OSH Act in operative.

7         Mr Carradus contends that the FW Act does not purport to legislate against an employee being entitled to refuse to work in circumstances set out in s 26 of the OSH Act and in particular does not prohibit payment by an employer to an employee in the circumstances covered by s 26 and s 28 of the OSH Act nor preclude an employee referring a dispute to the Tribunal under s 28(2) of the OSH Act.

8         On 3 December 2021 the respondent served a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) on the State Solicitors’ Office. On 17 December 2021 the Attorney General for Western Australia gave notice of intervention pursuant to section 78A(1) of that Act.

9         The Attorney General submits there is no direct inconsistency. Sections 26(1) and 28(1)-(2) of the OSH Act do not ‘alter, impair or detract from’ Part 3-3, Division 9 of the FW Act. No ‘real conflict’ arises from the mere co-existence of these laws. The FW Act does not cover the field as articulated by the respondent. 

10      The Attorney General also submits that if there is any s 109 of the Constitution inconsistency between these laws, it is more likely an operational inconsistency. However, it is not yet possible to determine whether such inconsistency exists. Absent findings of fact regarding the application of this issue is hypothetical, and it may not ever need to be decided.

Background

11      Patrick is part of a corporate group that operates a container stevedoring at the Fremantle Terminal. It is a corporation incorporated pursuant to section 124 of the Corporations Act 2001 (Cth) and is a trading corporation within the meaning of section 51(xx) of the Constitution. It is a ‘national system employer’ within the meaning of the FW Act; and at all material times has been an employer of ‘waterside workers’ within the meaning of the FW Act and the Workplace Relations Act 1996 (Cth).

12      At the Fremantle Terminal, Patrick employs stevedoring employees who fall within the classifications in Grades 1-6 of the Stevedoring Industry Award 1999 (Stevedoring Employees).

13      Patrick is covered by an enterprise agreement called the Patrick Terminals Enterprise Agreement 2016 (the Agreement), which was made and approved under the FW Act. The Agreement has a nominal expiry date of 30 June 2020. The Agreement applies to the Stevedoring Employees and to Patrick in relation to their employment.

14      Mr Carradus is engaged as a Stevedoring employee whose employment is covered by the Agreement.

15      On 24 July 2020, during a routine maintenance inspection on the Z8 crane, Patrick’s maintenance team identified hairline cracks in the right-hand side cross travel rail at the 26.7 metre mark.

16      On 24 July 2020, Mr Carradus was rostered on for a shift at the Fremantle Terminal. At the toolbox meeting, held prior to the commencement of the shift, the Duty Shift Manager advised that the maintenance inspection had identified that the Z8 crane had a cracked crane rail. Mr Carradus raised his concerns about operating the Z8 crane safely. Mr Carradus had concerns that the crack may worsen, cause further damage and/or that crane parts such as a chunk of crane rail or damaged trolley wheel could fall from the crane because of the lack of structural integrity of the crane. Mr Carradus was concerned that a piece of the crane falling from heights could have fatal consequences if he or anyone else was struck by it. In response to Mr Carradus’ concerns Patrick provided a letter advising that the crane rail had been inspected and was safe to use for 24 hours. Mr Carradus used the crane on that shift.

17      On 27 July 2020 Mr Carradus was rostered to work the day shift and at the toolbox meeting Patrick’s Operations Manager produced an email from the Engineering Manager stating that crane Z8 would be inspected daily and that this was considered a suitable control measure.

18      Following the toolbox meeting, Mr Carradus raised his concerns about the structural integrity of crane Z8 and the manner in which Patrick was dealing with these concerns with an elected HS Representative who sought the assistance of Patrick’s National HSE Manager.

19      At around 9:35am the stevedores, including Mr Carradus, ceased working with crane Z8 due to their concerns that the crack would worsen. Mr Carradus’ evidence is that no email was produced to confirm that the crane had been inspected on the day and was safe to use. Mr Carradus understood that the HS Representative had reported this matter to WorkSafe and had been advised to wait for a WorkSafe Inspector to contact him.

20      At about 10:20am Mr Carradus met with Patrick’s Operations Manager to try to resolve the issues. At this meeting Mr Carradus outlined his concerns and sought confirmation that the crane had been inspected since the initial 24 hour period had expired. Mr Carradus advised the Operations Manager that he was aware of previous occasions where pieces of the crane’s structure had broken loose from the crane and his concerns for the risks of a piece of crane falling from heights and striking a person. Mr Carradus requested that the crane be inspected and that a meeting occur between the team and Patrick’s Terminal Manager.

21      At 11:35am Mr Carradus attended a meeting with Patrick’s Terminal Manager, Operations Manager, the elected Health and Safety Representative and two Portainer Crane Operators to discuss the damage to the cracked rail, site maintenance processes, site maintenance qualifications, past precedent and relevant previous incidents, potential risks, next steps and possible solutions and actions to address the issues. Mr Carradus and the other stevedores confirmed that they were not refusing to work however they did not consider it safe to continue working with crane Z8 in the circumstances.

22      It was agreed that Patrick would consider the matters discussed while Mr Carradus, the elected Health and Safety Representative and the two Portainer Crane Operators physically inspected the rail crack. The other members of the team were redirected to alternative duties.

23      At 12:10pm Mr Carradus and the others returned to the office to continue the meeting. As the members of Patrick’s management group were still deliberating, Mr Carradus informed the Duty Shift Manager that they would be waiting in the nearby employee amenities building.

24      At 1:50pm the Terminal Manager and Operations Manager requested the team join Mr Carradus and the others in the amenities building. A statement prepared by Patrick’s Corporate Head Office was read out to the employees. The statement advised employees that due to their refusal to perform work in accordance with a reasonable company direction, they were to be stood down and four hours of payment would be deducted from them on the grounds that they had engaged in industrial action. Mr Carradus remained in the amenities room until the conclusion of his shift.

Principles

25      Section 109 of the Constitution resolves conflicts between the concurrent power of both the Commonwealth and the States to legislate on the same topic by giving the laws of the Commonwealth overriding force:

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.

26      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 Licensing Court of Brisbane: Ex parte Daniell [1920] HCA 24; (1920) 28 CLR 23. or where a State law would ‘alter, impair or detract from’ the operation of the Commonwealth law as in Work Health Authority v Outback Ballooning Pty Ltd (Outback Ballooning) [2019] HCA 2; (2019) 363 ALR 188 at [32].

(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 Bros Pty Ltd [1943] HCA 41; (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] HCA 30; (2010) 241 CLR 491 at 502.

27      The relevant sections of the FW Act are s 474:

Payments not to be made relating to certain periods of industrial action

(1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:

(a) if the total duration of the industrial action on that day is at least 4 hours—the total duration of the industrial action on that day; or

(b) otherwise—4 hours of that day.

And s 19(1) which defines ‘industrial action’:

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

…

28      The relevant sections of the OSH Act are: s 26(1), s 28(1) and s 28(2).

29      Section 26(1) of the OSH Act provides that an employee may refuse to work where they have reasonable grounds to believe that to continue to work would expose them or any other person to a risk of imminent and serious injury or imminent and serious harm to their health.

30      Section 28(1) provides for an entitlement to pay and other benefits if the employee refuses to work in accordance with 26(1) of the OSH Act. The section provides that an employee who refuses to work is entitled to the same pay and benefits, if any, to which they would have been entitled if they had continued to do their usual work.

31      Section 28(2) of the OSH Act provides that a dispute as to whether a person is entitled to any pay or benefit in accordance with s 28(1) may be referred by any party to the dispute to the Tribunal for determination.

Direct Inconsistency

32      Patrick submits that Mr Carrudus’ refusal to perform work on the Z8 crane on 27 July 2020 is ‘industrial action’ as described in s 19(1)(b) of the FW Act. Therefore, in compliance with s 474(1) of the FW Act, requires a reduction in pay:

(1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:

(a) if the total duration of the industrial action on that day is at least 4 hours--the total duration of the industrial action on that day; or

(b) otherwise—4 hours of that day.

33      Patrick refers the Tribunal to s 19(2)(c) of the FW Act which provides that action is not ‘industrial action’ if it is ‘based on a reasonable concern of the employee about an imminent risk to his or her health or safety’, and he or she did not unreasonably fail to comply with a direction to perform other safe and appropriate available work.

34      It is Patrick’s submission that s 28(1) of the OSH Act is directly inconsistent with the FW Act in that the State act would allow a paid cessation of work based on perceived risks to the employee and third parties whereas the FW Act limits payment to concern for their own health or safety and prohibits payment if the refusal to work was based on risk to third parties only. In addition, Patrick contends a further direct inconsistency arises because the OSH Act creates entitlement to payment on grounds of perceived risk (objectively has reasonable grounds to perceive) whereas the FW Act invites consideration of actual reasons.

35      Patrick submits that the FW Act sets its own test of when an employee with safety concerns who stops work and would otherwise be disentitled to pay can continue to be paid. Patrick contends that distinguishing between ‘entitlements’ and ‘prohibitions’ is not a meaningful distinction because the two Acts both deal with whether payment is to be made and that the effect is the same.

36      Patrick contends that the refusal by Mr Carradus to perform work on 27 July 2020 is a refusal to work as directed and is a ban or limitation on the performance of work and, therefore, Mr Carradus must rely on s 19(2) of the FW Act. Patrick assert that both statutes apply to the recovery of wages. Patrick say the question of whether the refusal to perform work concerns safety or industrial action need not be resolved.

37      Patrick submits that adopting an approach that the Commonwealth Parliament intended to allow States to legislate in this same area would leave employers faced with sanctions for making payments on the one hand and for not making payment on the other. Employees would also be permitted to choose which law they wished to proceed under.

38      Mr Carradus refers to s 19(2)(c) of the FW Act that provides that action is not industrial action if it is based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and the employee does not unreasonably fail to comply with a direction to perform other safe and appropriate available work. Accordingly, the FW Act does not include a prohibition on payments to an employee who fails or refuses to perform work based on a reasonable concern of the employee about an imminent risk to his or her health or safety. Nor does it preclude an employee referring a dispute about payment to the Tribunal under s 28(2) of the OSH Act.

39      Mr Carradus asserts that the FW Act does not purport to legislate against an employee being entitled to refuse to work in circumstances set out in s 26 of the OSH Act and does not prohibit payment by an employer to an employee in the circumstances prescribed by ss 26 and 28 of the OSH Act or inhibit an employee’s entitlement to refer a dispute to the Tribunal under s 28(2) of the OSH Act.

40      Mr Carradus contends that the only direct inconsistency can be found in Patrick’s contentions that a refusal to perform work on the basis of risk to a third party. Mr Carradus submits that he held concerns that there was an imminent risk to his own health and safety and acted upon this concern. The refusal to perform work using the Z8 crane comes within the exception and therefore is not inconsistent.

41      The Attorney General submits that there must be an actual and real conflict and that nothing in the OSH provisions requires the FW Act Part 3-3, Division 9 to be administered in any particular way, denies full operation to it or otherwise affects its legal or practical operation. The provisions contain distinct subject matters and are directed to substantially different forms of conduct.

42      The Attorney General submits that any ‘operational inconsistency’, if there is one, is and will remain a hypothetical issue in this matter, unless and until findings of fact or fact and law are made by the Tribunal concerning the applicant’s entitlements in accordance with the OSH Act. The Attorney General refers the Tribunal to the following decisions of the High Court: Mineralogy Pty Ltd v Western Australia [2021] HCA 30; (2021) 393 ALR 551; Clubb v Edwards and Another [2019] HCA 11; (2019) 267 CLR 171; Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289; Re Judiciary and Navigation Acts (1921) 29 CLR 257; Zhang v Commissioner of the Australian Federal Police [2021] HCA 16; (2021) 273 CLR 216 and Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508, that have emphasised a ‘general prudential approach to resolving questions of constitutional validity’. This approach counsels avoiding the ‘formulation of a rule of constitutional law broader than required by the precise facts to which it is to be applied’ and ‘avoiding the risk of premature interpretation of statutes on the basis of inadequate appreciation of their practical operation’.

43      Similarly in Outback Ballooning Gageler J observed:

[90]…[T]he question of whether the action of the regulator might give rise to “operational” inconsistency would appropriately be addressed if and when the question arose…The mere potential for inconsistency to arise in practice as a consequence of the exercise of one or more statutory powers is no reason for holding the statutes conferring those powers to be inconsistent in all of their potential applications.

44      In this matter I adopt the approach urged by the Attorney General and refrain from findings concerning potential operational inconsistency unless and until findings of fact or fact and law are made.

45      I consider the OSH Act provisions concern employee’s rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace.

46      I find that an employee who acts in accordance with s 26 of the OSH Act will also be acting in accordance with s 19(2)(c) of the FW Act, except if the employee is acting on the basis of a reasonable ground to believe that continuing to work would expose another person to a relevant risk of injury or harm to health. If that is the only inconsistency, then in accordance with s 109 of the Constitution, s 26 of the OSH Act continues to operate apart from with respect to a person refusing to work upon reasonable grounds to believe that another person would be at the relevant risk of injury or harm to their health.

47      To the extent that s 19(2)(c) of the FW Act refers to a reasonable concern and s 26 of the OSH Act refers to reasonable grounds to believe, they are not different in substance. If under s 26 of the OSH Act a person has reasonable grounds to believe that continuing to work would expose them to the relevant imminent risk, then clearly in the wording of s 19(2)(c) of the FW Act, they would have a reasonable concern about an imminent risk to their health or safety.

48      I do not agree with Patrick’s contention that it is not meaningful to distinguish between prohibitions and entitlements and that the two statutes both deal with when a payment is to be made. The FW Act does not create entitlements unlike the relevant provisions of the OSH Act which do. The FW Act prohibits payment to employees engaged in industrial action and sets out that employees who refuse to work because there is a risk to their health and safety are not engaged in industrial action. That is, employees who refuse to perform work because of a concern for their health and safety may receive payment. There is no inconsistency or conflict between the State and Commonwealth legislation. The OSH Act does not derogate or destroy any provision of the FW Act.

49      I do not agree that the FW Act and the OSH Act are inconsistent with respect to payments being made to employees who refuse to perform work on the basis that they have health and safety concerns. An employee who refuses to perform work in accordance with s 26 of the OSH Act is within the exception to the meaning of industrial action contained in s 19(2)(c) of the FW Act. The State law is complementary to the Commonwealth law and there is no inconsistency. See Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508 at [60].

Covering the Field

50      Patrick asserts that Part 3-3, Division 9 of the FW Act evinces an intention to comprehensively regulate the issue of ‘strike pay’ and any ‘safety exception’ to it. Patrick contends that the FW Act is categorical in that it states employers ‘must not’ make payment with respect to specified periods of protected action (s 470(1)) and unprotected industrial action (s 472(1)).

51      Patrick submits that the justification for a stoppage of work is not relevant to the application of the statute and cites Ponzio v B & P Caellie Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 per Lander J and refers the Tribunal to [83] of the reasons:

The policy of the Act is to discourage industrial action as it is defined in s 4 of the Act. The purpose of Pt VIIIA of the Act, in which these provisions are contained, is to prevent an employer making a payment to the employer’s employee in relation to any period during which the employee engages in industrial action. It is the intention of the Act to discourage employers and employees agreeing to the employer paying employees for that period of industrial action engaged in by the employee. To that end, s 187AA makes it a contravention for an employer to make a payment to an employee who has in relation to a period during which the employee engaged or engages in industrial action and at the same time makes it a contravention for the employee to accept a payment from an employer if by doing so the employer will contravene sub (1) by making that payment. The policy of the Act is that if an employee engages in industrial action then it must be at the employee’s own expense…

52      Mr Carradus submits that Patrick’s contentions do not have sufficient regard for ss 26 and s 27 of the FW Act:

26 Act excludes State or Territory industrial laws

(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 non‑membership 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.

27 State and Territory laws that are not excluded by section 26

(1A) Section 26 does not apply to any of the following laws:

(a) the Anti‑Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(c) the Anti‑Discrimination Act 1991 of Queensland;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti‑Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti‑Discrimination 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 non‑excluded 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 non‑excluded 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 non‑excluded 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 2‑2 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.

53      Section 26(1) of the FW Act generally provides that the FW Act is intended to apply to the exclusion of all State or Territory industrial laws for national system employee or a national system employer. Section 27(1)(c) of the FW Act sets out that some State and Territory laws are not excluded by s 26. Section 27(2)(c) provides that ‘occupational health and safety’ is a non-excluded matter.

54      Further s 30 of the FW Act provides that the division of the FW Act is not a complete statement of the circumstances in which the FW Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws:

30 Act may exclude State and Territory laws etc. in other cases

This Division is not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.

55      Mr Carradus contends that the combined effect of s 27 and s 30 of the FW Act is that the general position is that the FW Act is not intended to apply to the exclusion of the OSH Act. These provisions provide relevant background to conduct the exercise of ascertaining whether there is any inconsistency between the two statutes.

56      Mr Carradus submits that an examination of the statutes applied to the circumstances of this matter reveal that the FW Act does not cover the field or subject matter of the question of entitlement to payments. The relevant provisions of the two statutes are able to coexist and sit side by side. The OSH Act does not interfere with the policy nor application of the FW Act and is complementary.

57      The Attorney General submits that the FW Act does not contain the implicit negative proposition that nothing other than what it provides with respect to a particular subject matter is to be the subject to legislation, as set out in Outback Ballooning. The entitlement of workers not to work when they have reasonable health and safety concerns and an entitlement to payment in those circumstances, is not covered by the Commonwealth law. That is because Commonwealth law does not touch upon the entitlements provided for in the OSH Act.

58      The jurisdictional issue now before the Tribunal is different from that considered in the obiter reasons of Jessup J in Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union [2017] FCA 167 at [125]-[130]. That section empowered, in some circumstances, a health and safety representative for a designated work group to direct the cessation of work which involved an immediate threat to the health or safety of any person. However, s 74 of the Occupational Health and Safety Act 2004 (Vic) (Victorian Act) did not provide an employee with entitlements as does s 26 and s 28 of the OSH Act. Therefore, although s 74 of the Victorian Act did not affect whether unlawful industrial action had occurred under s 417 of the FW Act, that observation is not material to this matter.

59      Patrick contend that Ponzio v B & P Caelli Constructions Pty Ltd is authority for the view that the intention of the FW Act is to discourage payment being made to employees engaged in industrial action. Patricks submit that the Tribunal ought to follow this authority. In my view the observations made by Lander J in Ponzio v B & P Caelli Constructions Pty Ltd are that it is the intention of the Act to discourage employers and employees from agreeing to the employer paying employees for a period of industrial action engaged in by the employee. Section 19(2)(c) and s 474(1) of the FW Act do not legislate about entitlements to pay when an employee refuses to work on reasonable health and safety grounds as described in s 26 of the OSH Act. That area of operation is left to the OSH Act which provides for entitlements.

60      In my view the OSH Act provides for entitlements in prescribed circumstances. I agree with the submissions of Mr Carradus and those of the Attorney General, that is, the subject matter concerns an entitlement not to work when there is a risk to health and safety and the entitlement to payment during this period of time and the entitlement to refer to the Tribunal any dispute arising from these circumstances. These entitlements can sit side by side with the FW Act prohibitions. They are not prohibited by the FW Act. The FW Act provisions do not legislate about the subject matter of the entitlements covered by the OSH Act provisions. The subject matters of entitlements not to work when there is the relevant risk to health and safety, entitlement to payments for this period of time and the determination of any dispute about that, is left to the OSH Act. The FW Act does not cover the relevant subject matter.

Conclusion

61      For the reasons set out above, I find that the Tribunal has jurisdiction to hear and determine Mr Carradus’ application.