CATCHWORDS: Employment — Termination of employment — Appeal against finding of unfair dismissal — Inconsistency between state and federal systems WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT KENNEDY, ANDERSON AND MCKECHNIE JJ IAC 5 of 1999 1 December 1999, 16 August 2000 City Of Mandurah v Hull [2000] WASCA 216 Headnotes Industrial law (WA) — Jurisdiction of Industrial Relations Commission — Unfair dismissal — Employee covered by Federal award — Whether inconsistency between Commonwealth and State Acts Australian Constitution, s51(35), s109 Industrial Relations Act 1979 (WA), s23A, s29 Interpretation Act 1984 (WA), s7 Judiciary Act (Cth), s78B Workplace Relations Act 1996 (Cth), s89A, s152(1A), s170CB, s170HB Case(s) referred to in judgment(s): Burrows v Shire of Esperance (1998) 86 IR 75 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 Cohen v Government Insurance Office of Australia Ltd (1996) 40 AILR 5-104 Ex parte McLean (1930) 43 CLR 472 Jazabas Pty Ltd v City of Botany Bay Council [2000] NSWSC 58 Martindale v British Petroleum Refinery (Kwinana) Pty Ltd (1992) 72 WAIG 1263 Metal Trades Industry Association of Australia v Amalgamated Metal Workers' & Shipwrights' Union (1983) 152 CLR 632 Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 Moore v Newcastle City Council; Re The Civic Theatre Newcastle (1997) 77 IR 210; (1997) 42 AILR 5-139 R v Clarkson; Ex parte General Motors Holden Pty Ltd (1976) 134 CLR 56 R v Credit Tribunal; Ex parte General Motors Acceptance Corp (1976) 137 CLR 545 Re Award Simplification Decision, Hospitality Industry - Accommodation, Hotels, Resorts & Gaming Award 1995 (1998) 43 AILR 3-683 Shuttleton v Cain (1997) 77 WAIG 1073 T A Robinson and Sons Pty Ltd v Haylor (1957) 97 CLR 177 The King v Kelly; ex parte State of Victoria (1950) 81 CLR 64 The Queen v The Credit Tribunal; Ex parte General Motors Acceptance Corp, Australia (1977) 137 CLR 545 The University of Wollongong v Metwally (1984) 158 CLR 447 Woods v Linfoot Cleaning Services (1998) 44 AILR 13-154; 78 WAIG 3373 Case(s) also cited: Albeury v Boddington Shire Council (1990) 70 WAIG 4123 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 Bartlett v Alcoa of Australia Ltd (1998) 78 WAIG 3351 Bridge Shipping Pty Ltd v Grand Shipping (1991) 173 CLR 231 Bull v Attorney General for New South Wales (1913) 17 CLR 370 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372 Thompson v Goold & Co [1910] AC 409 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 Hull v City of Mandurah (1998) 78 WAIG 4912 Hull v City of Mandurah (1999) 79 WAIG 1874 Irimia v Swan Transit Services (South) Pty Ltd (1998) 78 WAIG 747 Katina Pty Ltd v Western Australian Builders' Labourers, Painters and Plasterers Union of Workers (1997) 77 WAIG 2863 Miles v Miscellaneous Workers' Union (1985) 65 WAIG 385 Miller v Miller (1978) 141 CLR 26 Miskiewizc v City of Belmont (1994) 74 WAIG 2777 Miskiewizc v City of Belmont (1995) 75 WAIG 1811 Mitchell v United Credit Union Ltd (1998) 78 WAIG 2939 Re Municipal Employees (Western Australia) Award, unreported; Aust C & AC (Coleman C) (No 8090 of 1986); 19 December 1986 Pirrie v McFarlane (1925) 36 CLR 170 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 Telstra Corp Ltd v Worthing (1999) 197 CLR 61 Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 Kennedy J [1] I have had the benefit of reading in draft the reasons to be published by Anderson J. For those reasons, I agree that this appeal must be dismissed. Anderson J [2] This is an appeal from a decision of the Full Bench of the Industrial Relations Commission given on 24 June 1999, whereby the Full Bench allowed an appeal against a judgment of Kenner C dismissing the claim of the respondent, Mr Hull, of unfair dismissal. [3] The appellant is a municipality which employed the respondent as a truck driver under a Federal award, the Municipal Employees (Western Australia) Award 1982, to which the appellant is a named party. On 27 March 1998, the respondent was summarily dismissed from his employment after a fight with another employee at a work site. On 23 April 1998, the respondent filed a notice of application in the Western Australian Industrial Relations Commission under s29 of the Industrial Relations Act 1979 (WA) for orders pursuant to s23A of the Act. In the application, the respondent pleaded that his dismissal was "harsh, oppressive and unfair" and he claimed to be reinstated. [4] By s29(1)(b)(i), it is provided that an employee may make such an application himself. The relevant parts of the section are: "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 ... by the employee." [5] By s23A, the Commission is given the power "on a claim of harsh, oppressive or unfair dismissal ... [to] ... (b) order the employer to reinstate ... " the claimant. [6] When the application came on before Kenner C, it was agreed that the parties would first argue the question of law arising out of the appellant's contention that the Commission had no jurisdiction to entertain the respondent's application. This contention was based on three arguments which are formulated as follows in the judgment of Kenner C at AB 77: "(1) That the Act only extends to employees whose employment is regulated within the 'State Industrial Relations System' and thereby excludes employees covered by Federal awards; (2) That the terms of the award are inconsistent with the terms of the Act in relation to harsh, oppressive or unfair dismissal pursuant to ('s109') of the Commonwealth Constitution and are accordingly invalid to the extent of that inconsistency; and (3) That the terms of the Act in relation to harsh, oppressive or unfair dismissal are inconsistent with the terms of the Workplace Relations Act 1996 (Cth) ('the Workplace Relations Act') relating to unfair dismissal, for the purposes of s109 and are therefore invalid to the extent of that inconsistency." [7] Kenner C held that the word "employee" in the Act (and thus in s29(1)(b)(i)) should be interpreted to exclude Federal award employees. The Commissioner also held that the Federal award in question "covered the field" with respect to unfair dismissal so as to produce an inconsistency with s29(1)(b), within the meaning of s109 of the Constitution. He also held that there was a direct inconsistency between the award on the one hand and s29(1)(b) on the other. He therefore dismissed the application for want of jurisdiction on the basis that s29(1)(b)(i) was in all material respects invalidated by s109. I should add that he also considered and rejected an argument on behalf of the appellant that there was an indirect inconsistency between the State Act and the Workplace Relations Act 1996 (Cth). He was not asked to, and expressly declined to, pass an opinion as to whether there was a direct inconsistency between those two Acts. [8] The Full Bench allowed the appeal from this decision. They held that the Western Australian Industrial Relations Commission had jurisdiction to entertain applications by Federal award employees pursuant to s29(1)(b) with respect to unfair dismissal and that there was no inconsistency between the Federal award under which the respondent was employed and the State Act. They agreed with the learned Commissioner that there was no indirect inconsistency between the State Act and the Workplace Relations Act and held as well that there was no direct inconsistency between those Acts. [9] The employer municipality now appeals to this Court against that decision. The meaning of "employee" in s29(1)(b)(i) [10] The first question which it is convenient to consider is the question whether the respondent was an "employee" for the purposes of the Industrial Relations Act. [11] There can be no doubt that the respondent was an employee within the ordinary meaning of that word. He was a truck driver employed for wages. The term "employee" is expressly defined in the State Act by s7, but there is nothing in the text of that definition to suggest that the word does not include Federal award employees. It is worth noting that s7B, introduced for the manifest purpose of placing a limit on the definition of "employee", limits the definition so as to exclude only employees who are parties to a workplace agreement in force under the Workplace Agreements Act 1993 (WA). The section does not, as it easily might have done, limit the definition so as to exclude Federal award employees. [12] Prima facie, therefore, the respondent was an "employee" under the State Act and was a person who, pursuant to s29(1)(b), could refer to the Commission a claim that he had been unfairly dismissed from his employment. The appellant's main argument in support of the proposition that the legislature did not intend "employee" in s29 to include Federal award employees was that the legislature must be taken to have enacted s29 in the knowledge that a separate Federal industrial relations system existed and with the intent that those who chose to have Federal coverage should be confined to rights and remedies provided by the Federal system. In my opinion, the mere fact that separate State and Federal systems exist for the settling of industrial disputes and that parliament must be taken to know of that notorious fact cannot lead to the conclusion that parliament did not intend to legislate for the benefit of all employees in Western Australia who are unfairly dismissed. Of course, there is nothing to stop a State legislature from expressly confining access to statutory remedies for unfair dismissal to employees whose conditions of employment are fixed by State awards or agreements or by the common law. But such legislation is prima facie discriminatory and an intention to legislate in such a manner should not be implied too readily: cf Moore v Newcastle City Council; Re The Civic Theatre Newcastle (1997) 77 IR 210; (1997) 42 AILR 5-139; Cohen v Government Insurance Office of Australia Ltd (1996) 40 AILR 5-104. I am not persuaded there is any sufficient basis for such an implication in this case. On the contrary, there is at least one clear indication in the content of the WA State Act itself that the word "employee" includes employees covered by Federal awards. As the Full Bench pointed out at 37 of the reasons of the learned President, s37A specifically refers to employees bound by Federal awards in terms which clearly show that "employee" has its ordinary meaning. S37A(1) provides: "If in the opinion of the Minister a number of the employees to whom a particular award under this Act (' the State award ') extends are bound by an award under the Commonwealth Act the Minister may by order published in the Industrial Gazette suspend the State award." [13] It would be patently absurd to give to the word "employee" in that section the definition contended for by the appellant. The section would have to be read as follows: "If in the opinion of the Minister a number of the employees other than employees the subject of the Federal award are bound by an award under the Commonwealth Act ... " [14] Considerable reliance was placed by the appellant on the decision of the Industrial Relations Commission of New South Wales in the case of Moore v Newcastle City Council (supra). That was an unfair dismissal case. The applicant Moore was engaged by the respondent municipality as a technician and his employment was covered by a Federal award. He made an application to the Industrial Relations Commission of New South Wales pursuant to s84 of the Industrial Relations Act 1996 (NSW) with respect to his dismissal. By s83 of the Act, it was provided that the unfair dismissal provisions in the Act applied: " ... to the dismissal of: (a) any public sector employee, or (b) any other employee ... " [15] Various industrial organisations of employers intervened in the case to argue that the phrase "any other employee" did not cover employees under Federal awards so that such employees (including the applicant) did not have access to the remedies provided for unfair dismissal in the NSW State Act. [16] This argument was accepted by the Commission. It should be observed that the decision has been strongly and, if I may say so with respect, persuasively criticised: see the article by Associate Professor Greg McCarry of the Faculty of Law, University of Sydney, "Relationships Between the Federal and NSW Industrial Relations System" (1998) 11 Australian Journal of Labour Law 69 at 86 - 88. Whether the decision in Moore is or is not correct, it is, in my opinion, clearly distinguishable from the case under consideration, as the Full Bench held. By an examination of the legislative history in New South Wales and by reference to the peculiar provisions of the NSW State Act, the Commission in Moore was satisfied that there was no intention, express or implied, that the New South Wales State Act cover Federal award employees. One important historical fact was that the precursor to the 1996 NSW State Act expressly provided that only employees whose conditions of employment were fixed by State awards or agreements should have access to the statutory remedies for unfair dismissal and it was considered that there was no sufficient indication in the new Act that that situation should change. That the decision in Moore was reached on a consideration of matters peculiar to New South Wales is made clear throughout the judgment. See, for example, the following passage from the Commission's judgment at 226: "An examination of the use of the word 'employee' throughout the statute [the 1966 New South Wales Act] it seems to us, evinces an intention to put in place a State scheme applicable to employees within the State Industrial Relations aegis. Assisting that view are the remarks of the Minister from the second reading speeches as set out above. We can find no section of the 1996 State Act which evinces an intention to cross the boundary into the area of federal regulation so that if s83 were to be construed as covering federal award employees it would, in the context of the statute as a whole, be unique." [17] Because these matters peculiar to New South Wales were the basis of the decision, the reasoning of the Commission in Moore cannot be applied to a resolution of the issue before this Court. In particular, it cannot be said that "an examination of the use of the word 'employee' throughout" the Industrial Relations Act 1979 (WA) shows that it is intended to exclude Federal award employees. If and to the extent that Woods v Linfoot Cleaning Services (1998) 44 AILR 13-154; 78 WAIG 3373 decides otherwise, it must be held to have been wrongly decided. [18] The judgment in Moore was also relied upon by the appellant as authority for the proposition that the WA State Act should be presumed not to apply to employees covered by Federal awards, having regard to the "supremacy" conferred by s109 of the Constitution. The argument is that the State parliament should not be taken to have intended to pass legislation purporting to affect employees whose working conditions are covered by a Federal award, in view of s109 of the Constitution. It is true that there seems to be some support for such a notion in Moore. At 225, the Commission referred to what it described as "the unquestioned legal position that Federal awards would be paramount in situations of conflict with State laws" as a matter to be taken into account in considering the question whether the State parliament intended to legislate for employees covered by Federal awards. If the Commission was intending to say that there is a rule of construction to the effect that State Acts should be narrowly construed so as to avoid inconsistency with Commonwealth laws, I must say, with respect, that I do not agree. We are not here dealing with legislative competence to which s7 of the Interpretation Act 1984 (WA) refers. That is the section which provides that "every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power ... ". A law made by a State may be within the legislative competence of the State, but, nevertheless, it may be inconsistent with Commonwealth law. The conflict is not to be resolved by reading down the State law by reference to some presumed intent of the State parliament. To the extent that the laws are inconsistent, s109 provides the means for resolving the conflict. As Gibbs CJ pointed out in The University of Wollongong v Metwally (1984) 158 CLR 447: "If there is an inconsistency between a law of a State and a law of the Commonwealth there is no other rule than that laid down by s109 by which the inconsistency may be resolved." (at 458) [19] In my opinion, the Full Bench was right to conclude that the word "employee" in s29 of the WA State Act is to be given its ordinary meaning and includes employees covered by Federal awards. Inconsistency between Federal award and State Act [20] The next question which arises is the question arising out of ground of appeal 1.2 which is that the Full Bench erred in law in holding that there was "no direct or indirect inconsistency between the Act and the [award] such that s109 of the Constitution would render the Act invalid to the extent of the inconsistency". [21] It is to be remembered, as both Kenner C and the Full Bench pointed out, that an award, or an agreement having the force of an award, is not itself a law of the Commonwealth within the meaning of s109 of the Constitution: T A Robinson and Sons Pty Ltd v Haylor (1957) 97 CLR 177 at 182. In this case, the relevant law of the Commonwealth is the Workplace Relations Act 1996. That Act confers on the Australian Industrial Relations Commission the power to settle the rights and duties of parties to a dispute extending beyond the limits of any one State. The resolution of the dispute is an exercise of an arbitral function producing an award. Whether any State law must give way in favour of that award depends upon whether it was the intention of the Commonwealth parliament "to confer power upon the arbitrator to make on a subject of dispute an exhaustive determination containing an industrial regulation that, on the subject with which it deals, will cover the ground to the exclusion of any different or further provision": T A Robinson and Sons Pty Ltd v Haylor (supra) at 182. See also The King v Kelly; ex parte State of Victoria (1950) 81 CLR 64 at 81. But the mere fact that the parliament of the Commonwealth and the parliament of the State each legislate upon the same subject does not decide the question whether there is an inconsistency. It may appear that the Federal law was intended to be supplementary to or cumulative upon State law, in which case "no inconsistency would be exhibited in imposing the same duties or inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed": Ex parte McLean (1930) 43 CLR 472 per Dixon J at 483. [22] The award in this case does (or did at the time of the dismissal) refer to the subject of unfair dismissal. (I use the term "unfair dismissal" for convenience, recognising that the legislation and the Federal award in question use an expanded formula. In the award in this case, the term is "harsh, unjust or unreasonable".) The award provided by cl6 a form of redress with respect to harsh, unjust or unreasonable dismissals. The award predated the Workplace Relations Act 1996 (Cth). It was made under the Conciliation and Arbitration Act 1904 (Cth). When the unfair dismissal provisions in cl6 were inserted into the award does not appear from the papers. It is not contended by the respondent or by the Attorney General (intervening) that the Commission was not empowered to include provisions relating to unfair dismissal in awards made under the Act that was in force at the time the provisions were put into the award. I should say, however, that the Australian Industrial Relations Commission may not now be empowered to include unfair dismissal provisions in Federal awards as a matter of course. When the Workplace Relations Act was introduced, the concept of "allowable award matters" was introduced. The allowable award matters were 20 in number (see s89A(2)). The Commission may not make an award in respect of a matter outside the list of allowable award matters unless it meets the criteria of exceptional matter in s89A(7). Unfair dismissal is not in terms included in the list of allowable award matters, although one of the matters included in the list of allowable award matters is "notice of termination" (see s89A(2)(n)). Nor would unfair dismissal appear to meet the criteria of exceptional matter in s89A(7). Provision was made for the reduction of all Federal awards to the 20 allowable matters set out in the new Act and the transitional provisions, especially item 50 of Pt2 of Sch 5 provided that on 1 July 1998 all provisions of awards that provided other than for allowable award matters ceased to have effect. After that date, the Commission was obliged to review all awards to remove obsolete items: see Re Award Simplification Decision, Hospitality Industry - Accommodation, Hotels, Resorts & Gaming Award 1995 (1998) 43 AILR 3-683. Arguably, therefore, since 1 July 1998 there has been no provision in the award in question on the subject of unfair or unjust dismissal. Whether the relevant subclauses of cl6 have actually been removed from the award as obsolete does not appear from the papers. Now, the relevance of all of this is that it might be thought to be open to argue that since 1 July 1998 there could be no s109 inconsistency between the provisions of the award and s29 of the WA State Act. However, neither the respondent nor the Attorney General made submissions to this effect and the point can therefore be put to one side. As it was presented and argued in this Court, the case must be considered on the basis that the Commission is or will be called upon on the hearing of the respondent's application on its merits to exercise its unfair dismissal jurisdiction under s29 in the face of a Federal award lawfully dealing with that subject. [23] Whether a State law in respect of unfair dismissal can still validly operate where the Commonwealth tribunal has exercised its authority to determine a dispute by bringing down an award in which rules are prescribed with respect to claims of unfair dismissal depends on the intention of the Commonwealth parliament as regards the power of the Commonwealth tribunal to arbitrate on that subject-matter. If it was the intention to authorise the tribunal to exhaustively settle the rights and duties of the parties on that subject-matter regardless of the State law on the same subject-matter and if the tribunal proceeded to do so, then the award made by the Commonwealth tribunal would arguably cover the field and s109 would give paramountcy to the legislative provisions empowering the tribunal to do so. The State law could not then validly operate. [24] So the first question is whether, on the subject of unfair dismissal, the Commonwealth parliament did, within the Workplace Relations Act as it stood at the material time, authorise the Australian Industrial Relations Commission to make and maintain an award containing provisions with respect to unfair dismissal to the exclusion of State law. It seems to me that on that question, s152(1A) of the Workplace Relations Act 1996 is decisive. At the material time, it provided that: "If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subs(1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the award." [25] Subs(1) is, of course, the subsection which provides that if a State law or State award is inconsistent with or deals with a matter dealt with in a Federal award, the latter prevails "and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid". [26] Subs(1A) is a clear expression of legislative intent that Federal awards are not to be an exhaustive statement of the rights and obligations of the parties with respect to unfair dismissal. I see no reason why that statement of intent should not be given full effect. The result is that there can be no indirect inconsistency between the Federal award and the State law on the "cover the field" test. The State law will be effective except to the extent that it cannot operate concurrently with the award, ie, for present purposes, except to the extent that there is a direct inconsistency or collision between them. I should say that it was not argued on behalf of the appellant that subs(1A) did not apply to awards brought down in the Commission at a time before subs(1A) was in force. [27] In The Queen v The Credit Tribunal; Ex parte General Motors Acceptance Corp, Australia (1977) 137 CLR 545 Mason J pointed out at 563 that it is "well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provisions upon the same topic, making it impossible for both laws to be obeyed". In such a case, a provision in a Commonwealth law that it was not intended to cover the field cannot displace the operation of s109 in rendering the State law inoperative. This is expressly recognised in s152(1A) by the requirement that the two laws must be able to operate concurrently, in order for the State law not to be invalidated. It therefore remains to consider whether there is a direct inconsistency or collision between the provisions of the award and s29 of the WA State Act such that they cannot operate concurrently. [28] The appellant's submission did not go so far as to point up or enumerate any direct inconsistencies. I did not understand the submissions made on behalf of the appellant to identify any respect in which the Federal award is directly inconsistent with s29 in the sense that the two are incapable of simultaneous observance or in the sense that the State law impairs or detracts from the provisions of the award. The appellant's submissions seemed to me to be confined to arguing for indirect inconsistency on the basis that the award purported to cover the field into which s29 attempted to intrude. I am not able myself to discern any direct inconsistency or collision between the two. I can see nothing in the WA State Act which purports to cut down or qualify the rights or benefits conferred by the award or which purports to impair the operation of the material provisions of the award. It is, I think, clearly a case in which the rights under the Federal award insofar as they have survived the introduction of the Workplace Relations Act 1996 (Cth) are to be cumulative upon the rights under the State law. A powerful indication of that is (or was at the material time) contained in the award itself in the form of cl6(g) which provided: "(g) Disputes settlement procedures - unfair dismissals (i) ... any Dispute or claim arising under subcl(f) shall be dealt with according to the appropriate provisions of cl11 - Dispute Settlement Procedures of Schedule 'B' of this award; (ii) the provisions of placitum (i) hereof shall not affect the right of an employee, in the case of a claim by him that he has been unfairly dismissed from his employment, to refer that matter to the Western Australian Industrial Relations Commission in accordance with the provisions of s29(1)(b)(i) of the Industrial Relations Act." [29] I would not uphold this ground of appeal. Inconsistency between Commonwealth Act and State Act [30] The next question that arises is whether there is an inconsistency between the WA State Act and the Workplace Relations Act such that s109 of the Constitution would render s29 of the Act invalid to the extent of the inconsistency. This is the question which underlies ground of appeal 1.3 and arises from the fact that the Workplace Relations Act itself gives statutory remedies with respect to harsh, unjust or unreasonable dismissals. By s170CB of the Workplace Relations Act, it is provided that: "(1) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination: (a) a Commonwealth Public Sector employee; or (b) a Territory employee; or (c) a Federal award employee who was employed by a constitutional corporation - " [31] A constitutional corporation is defined to mean various things which the City of Mandurah plainly is not, but is also defined to mean: "(b) a body corporate that is, for the purposes of para51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or (c) a body corporate that is, for the purposes of para51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth." [32] The proceedings before Kenner C appear to have been conducted on the basis that the City of Mandurah is a financial corporation or a trading corporation and therefore a "constitutional corporation" within the meaning of s170CB of the Workplace Relations Act. [33] The question whether the City of Mandurah is a "financial corporation" or a "trading corporation" might not be an easy question to answer. It is, of course, a question of fact. In Burrows v Shire of Esperance (1998) 86 IR 75, the municipality was held to be a trading corporation. In Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 and Jazabas Pty Ltd v City of Botany Bay Council [2000] NSWSC 58, the municipalities were held not to be trading corporations. The question does not seem to have been explored before the Commission. I must say, I do not think it is self-evident that a municipality such as the City of Mandurah is either a financial corporation or a trading corporation although, depending on its activities, it may be. However, the question is perhaps not whether the respondent in this case might have obtained access to the statutory remedies for unlawful or unfair dismissal under the Workplace Relations Act, because he was employed by a "constitutional corporation", but whether the provisions of the State Act are inconsistent with the provisions of the Workplace Relations Act. In my opinion, it is impossible to contend that the Workplace Relations Act intended to cover the field on the subject of unfair dismissals. In the first place, remedies for unfair dismissals are accessible only by certain categories of employees: s170CB. It could be argued that this merely manifested an intention that employees covered by Federal awards who were not within the enumerated categories were not to have any access at all to unfair dismissal remedies. It would be very difficult to discern any rational basis for such an intention. Anyway, as Associate Professor McCarry points out in his article referred to above at 88, the Commonwealth has indicated quite clearly that it does not intend to cover this field. S170HA provides that the statutory remedies in the Act "are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment". This expressly preserves any rights which a Federal award employee may have under State law with respect to unfair dismissal. It follows from this that the Workplace Relations Act cannot be interpreted as intending to cover the field. Thus, any inconsistencies between the Workplace Relations Act and the State law must necessarily be confined to the "direct collision" type. Furthermore, s170HB says that an application alleging harsh, unjust or unreasonable termination must not be made under the Workplace Relations Act if proceedings for a remedy in respect of that termination have been commenced under, among other things, a law of a State. This, too, is a clear indication that a "covering the field" operation must be denied to the Workplace Relations Act. It is the manifestation of a clear intention to preserve such access to State regimes as may otherwise have been available: McCarry (supra) at 89. [34] As in the case of the appellant's submissions with respect to inconsistency between the Federal award and the State Act, the appellant's submissions in respect to inconsistency between the Workplace Relations Act and the WA State Act do not identify any direct inconsistency. For myself, I am unable to identify any direct inconsistency. [35] I would not uphold this ground of appeal. Further grounds of appeal [36] There is a further ground of appeal (or set of grounds) which plead that the Full Bench erred in law in taking into account irrelevant considerations. The short answer to this ground of appeal is that neither the Commissioner nor the Full Bench were exercising a discretion in determining the questions posed for their consideration. The Full Bench was hearing an appeal on pure questions of law. If the answers which they gave with respect to those questions are correct, it cannot matter that in some respects the process of reasoning might be fairly susceptible to criticism. [37] In my opinion, this appeal should be dismissed. McKechnie J [38] This appeal raises questions as to the jurisdiction of the Western Australian Industrial Relations Commission to hear an application by an employee who was summarily dismissed by an employer who is bound by a Federal award. The employee, the present respondent, claimed that his dismissal by his employer, the present appellant, was harsh, oppressive and unfair and sought an order for reinstatement through the Commission. He sought to refer the question as an industrial matter to the Commission under the Industrial Relations Act 1979 (WA) s29(b)(i). [39] At first instance the appellant was successful in a jurisdictional argument. The Commissioner held there was a direct inconsistency between the Federal award and the provisions of the Industrial Relations Act. As a result the Commission had no jurisdiction to entertain the appeal. [40] From that decision the respondent appealed to the Full Bench which, on 24 June 1999, allowed the appeal. [41] In my opinion the reasoning of Sharkey P, (Coleman and Beech CC agreeing) in allowing the appeal from the Commissioner, apart from one mistake, discloses no material error and the result which was reached is correct. [42] That being so, I can deal comparatively briefly with the submissions advanced by the appellant in this Court. [43] In essence, those are the same submissions, some of which were found attractive by the Commissioner, but which were rejected by the Full Bench. [44] The appellant has three main arguments as reflected in the grounds of appeal. The term "employee" within the Industrial Relations Act [45] Put shortly, the appellant submits that the term "employee" within the Industrial Relations Act, and particularly within s29, does not extend to include Federal award employees. [46] The appellant is a named party to the Municipal Employees' (Western Australia) Award 1982 which is a Federal award. That award, by cl6, deals with termination of employment. [47] It seemed to have been accepted that the appellant was a "constitutional corporation" and therefore the Workplace Relations Act 1996 (Cth) applied to a person who was under a Federal award. Whether this is in fact so has not been formally proved. I proceed on the assumption that the Workplace Relations Act applied to the appellant. [48] The definition of "employee" under the Industrial Relations Act is a wide definition. It means: "(a) any person employed by an employer to do work for hire or reward including an apprentice or an industrial trainee; (b) any person whose usual status is that of an employee; ..." [49] S29 gives a right to an individual to bring proceedings in the Industrial Relations Commission. [50] There is nothing expressed within the Industrial Relations Act which limits the definition of "employee" to non-Federal award employees. [51] Nor, in my opinion, is there any warrant for holding that such an intention of Parliament was necessarily to be implied. On the contrary, the Industrial Relations Act, read as a whole, necessarily comprehends that employers and employees may be subject to both Federal awards and State awards. [52] The system of industrial relations in Australia is that there are two inter-related systems. The Commonwealth system applies to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (Constitution s51(35)) and also in respect of Federal entities. [53] A State may also make laws for the peace, order and good government of the State in respect of industrial relations. Both State laws and Commonwealth laws can exist closely: Shuttleton v Cain (1997) 77 WAIG 1073; R v Clarkson; Ex parte General Motors Holden Pty Ltd (1976) 134 CLR 56. [54] S29 is in the widest terms and gives rights to individuals to take action in the Industrial Relations Commission for relief against unfair dismissal. These rights extend not only to those covered by awards but also to those workers who are subject to individual contracts of employment. Some employees may be subject to both Federal and State awards. The coverage given by a Federal award may be very limited. It is not to be supposed that such employees would be shut out from the State system in the absence of clear and unambiguous language. [55] The appellant drew support from a decision of the New South Wales Full Bench of the Industrial Relations Commission in Moore v Newcastle City Council; Re The Civic Theatre Newcastle (1997) 77 IR 210. [56] There are factual similarities. Mr Moore was employed by the Council under a Federal award (the Entertainment and Broadcasting Industry - Live Theatre and Concert - Award 1995) made under the Industrial Relations Act 1988 and continued in force by the Workplace Relations Act 1996. [57] The Industrial Relations Act 1996 (NSW) provided a mechanism for employees to apply to the Industrial Relations Commission in respect of unfair dismissal pursuant to s83 to s90. [58] The question at issue was whether the State Act in its terms applied to employees where conditions of employment otherwise were regulated by an award made under the Commonwealth Act. [59] The Full Bench traced the history of the New South Wales Act and drew extensively on a portion of Hansard when the Bill was being debated. [60] The Full Bench expressed its view (at 226): "An examination of the use of the word 'employee' throughout the statute, it seems to us, evinces an intention to put in place a State scheme applicable to employees within the State industrial relations aegis." [61] They were assisted in that view by remarks of the Minister during the Second Reading Speech to the effect that for employees under Federal award coverage to obtain the benefits of the State system, they would have to move to it. [62] The Full Bench may have overlooked that, following introduction of the Bill into Parliament, it was amended to remove provisions which had confined access to unfair dismissal remedies to employees under State awards or agreements. [63] There are important differences in legislative histories of the Western Australian and the New South Wales' Acts. [64] Significantly, unfair dismissal provisions were enacted in Western Australia in 1979 well before the Commonwealth Parliament provided comparable relief under the Workplace Relations Act. In contrast, the New South Wales provisions were enacted after the Workplace Relations Act, and apparently with that Act firmly in mind. [65] Sharkey P traced the relevant legislative history of the Western Australian provisions. [66] Although not strictly necessary for reaching his conclusion that the word "employee" in s29 applied to all employees, including those employed under Federal awards, Sharkey P also had recourse to extrinsic material. The Second Reading Speeches of the Minister on 16 October 1979 confirm that the word "employee" was to be given its ordinary meaning. [67] The decision in Moore, based substantially on the legislative history of the New South Wales Industrial Relations Act 1996, is distinguishable on that basis and has no application to the Western Australian Industrial Relations Act with its different legislative history. [68] The respondent and the intervener submitted that the decision was wrongly decided. However, it is not necessary for the purposes of this appeal to resolve that question. [69] In my view, far from intending to exclude Federal award employees, Parliament intended to include such employees to the limit of the legislative capacity of the State. Is the Industrial Relations Act inconsistent with the Award? [70] This matter raises an issue as to the interpretation of the Constitution s109 which provides: "When a law of the State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." [71] When this matter came on for hearing on 1 October 1999, it appeared that the relevant notices under the Judiciary Act s78B had not been served on the Attorneys General for the Commonwealth and the States. [72] Accordingly, the matter was adjourned to enable this to be done. [73] Apart from the Attorney General for Western Australia, who has been granted leave to intervene, no Attorney General announced an intention to appear. [74] The Industrial Relations Act s23 and s29 will be inconsistent with the award and consequently with the law of the Commonwealth if their effect, if enforced, would be to destroy or vary the adjustment of industrial relations established by the award with respect to matters formerly in dispute: Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 499; Metal Trades Industry Association of Australia v Amalgamated Metal Workers' & Shipwrights' Union (1983) 152 CLR 632 at 642. [75] The award by cl6 deals with unfair dismissal. Cl6(g)(r) requires that a dispute or claim in relation to an alleged unfair dismissal is to be dealt with according to cl11 of the Disputes Settlements procedures in Schedule B of the award. [76] On some occasions an award will evince an intention to cover the field in relation to unfair dismissal: the cases of Martindale v British Petroleum Refinery (Kwinana) Pty Ltd (1992) 72 WAIG 1263 and Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 are examples. [77] In this case, cl6(g)(ii) expressly preserves the right of an employee to seek remedies in the State Commission. It reads: "The provision of placitum (i) hereof shall not affect the right of an employee, in the case of a claim by him that he has been unfairly dismissed from his employment, to refer that matter to the Western Australian Industrial Relations Commission in accordance with the provisions of s29(b)(i) of the Industrial Relations Act." [78] A proper construction of the award does not evince any intention that the Federal award should "cover the field" to the exclusion of a right of an employee to seek a remedy under the Industrial Relations Act. On the contrary, such a right is enshrined. Inconsistency between the Industrial Relations Act and the Workplace Relations Act [79] The argument before the Commissioner and also before the Full Bench proceeded on the basis that the relevant provision of the Workplace Relations Act (Cth) s152(1A) read as follows: " State law or award not excluded If a State law or a State award makes provision in respect of the determination of an employee's employment, any provision in a Federal award that also makes provision in respect of the termination of employment of the employee is not to be taken to show an intention to cover the field to the exclusion of that State award;" [80] The appellant dismissed the respondent on 27 March 1998. [81] The Workplace Relations Act was amended by the Workplace Relations and Other Legislation Amendment Act 1997 No 198, 1997, which came into operation on the day upon which it received the Royal Assent, 11 December 1997. [82] Schedule 4, "Termination of Employment", to the Amendment Act dealt with termination of the employment and by cl1 repealed subs152(1A) and substituted the following: " 1 Subs152(1A) (1A) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subs(1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the award." [83] Therefore the amended s152(1A) was operative at the time of the respondent's dismissal. [84] That part of the reasoning of the Full Bench, having proceeded by reference to the repealed section, cannot be supported. [85] It is possible for a Federal law to cover the field notwithstanding an expression of legislative intent: The University of Wollongong v Metwally (1984) 158 CLR 447 per Gibbs J at 445. An example of such a law is likely to be very rare indeed. [86] The Workplace Relations Act (Cth) is not such an example. The rights conferred by the Workplace Relations Act (Cth) are quite capable of concurrent observance with those created by the Industrial Relations Act. The rights under the Workplace Relations Act (Cth) are cumulative upon those under the Industrial Relations Act. The Workplace Relations Act (Cth) s152(1A) expresses a clear intention not to affect the Industrial Relations Act if s23 and s29 can operate concurrently with the award. [87] For the reasons already expressed, I consider that the award is in fact intended to and does operate concurrently with s23 and s29. [88] Where there is no direct inconsistency and the Commonwealth Act states that the statute is not intended to cover the field, that statute will be effective to avoid inconsistency by making it clear that a law is not intended to be exhaustive or exclusive: R v Credit Tribunal; Ex parte General Motors Acceptance Corp (1976) 137 CLR 545 per Mason J at 564. [89] In my opinion this appeal should be dismissed. Order Appeal dismissed Counsel for the appellant: Mr A J Randles Solicitors for the appellant: Mr A J Randles Counsel for the respondent: Mr R C Kenzie & Mr A Drake-Brockman Solicitors for the respondent: Dwyer Durack Counsel for the Interveners (Minister for Labour Relations & Attorney General for Western Australia): Mr P D Quinlan Solicitors for the Interveners (Minister for Labour Relations & Attorney General for Western Australia): State Crown Solicitor