Case: Telstra Corporation Ltd v Worthing [1999] HCA 12 ; (1999) 197 CLR 61
Outcome: applied
respondent ("Coinvest") accepts that: Jemena Electricity Networks (Vic) Ltd is bound by the Award and the 2004 Agreement; The applicable principles concerning the operation of s 109 of the Constitution are well settled and were most recently comprehensively and authoritatively examined in Telstra Corporation Ltd v Worthing [1999] HCA 12 ; (1999) 197 CLR 61. Sections 170LZ(1) and 152 of the WR Act (as at before 27 March 2006) and s 17(1) of the WR Act thereafter, operate to ensure that a federal industrial instrument will prevail over inconsistent State laws even though that instrument is not a "law of the Commonwealth" within s 109 of the Constitution . The relevant alleged constitutional inconsistency is between the WR Act and the State law; see Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28 ; (1983) 152 CLR 632 at 648 649 (per Mason, Brennan and Deane JJ); So far as is presently material, s 109 applies to affect the operation of a State law where: (i) that law alters, impairs or detracts from a law of the Commonwealth or the exercise of power under a Commonwealth law; or (ii) that law enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively. Contentions of Coinvest Whether a State law is inconsistent with a Federal law is the subject of principles which are "well-settled"; see Worthing at [27]. In Worthing the following categories of inconsistency were discussed: Where one law authorises what the other forbids; Where it is possible to obey both laws but one imposes a greater obligation than the other. Neither of those examples is currently relevant. The State law does not authorise anything forbidden by the industrial instruments. Section 12 of the State Act might be thought to have that effect, but properly analysed it only deals with disputes arising under the State Act and does not bear upon the settlement of disputes arising out of matters dealt with in the industrial instruments. The Court in Worthing , said at [28]: In Victoria v The Commonwealth , Dixon J stated two propositions which are presently material. The first was: When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. The second, which followed immediately in the same passage, was: Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent. The second proposition may apply in a given case where the first does not, yet, contrary to the approach taken in the Court of Appeal, if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies. (i) Does the State Act (and the scheme under it) alter, impair or detract from the operation of the industrial instruments? The State Act and the scheme which it provides does not alter, impair or detract from the operation of the industrial instruments. Those instruments require the Jemena companies to grant long service leave to those of its employees who qualify for it after a period of continuous service. In contrast, the State Act requires the applicants to pay long service leave charges in respect of those of the employees whom they employ in construction work. The State Act places no obligation on the applicants to pay long service leave benefits to anyone or to grant long service leave to anyone. The State Act operates in a parallel fashion to the federal industrial instruments. Those instruments reward continuous service by an employee with one employer. The State Act imposes a charge on employees in the industry to make provision for employees in the industry to enable them to receive long service leave benefits and, with the agreement of the employer, actual long service leave. Long service leave charges can be recouped by an employer if the employer pays an employee long service leave benefits under the instruments. The State law and the federal instruments co-exist in harmony such that each of them may be considered supplementary to or cumulative upon the other; see Worthing at [27] and Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483 , per Dixon J. There is nothing in the State Act which denies or varies a right, or privilege conferred by the federal instruments; see Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 290, per Wilson J. (ii) Does the State Act enter a field intended to be covered by the federal instruments?