BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers (with Corrigendum dated 2 August 2004) [2004] FCA 981 (29 July 2004) Last Updated: 2 August 2004 FEDERAL COURT OF AUSTRALIA BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 981 BGC CONTRACTING PTY LTD, SHAMROCK HOLDINGS PTY LTD and SNC-LAVALIN (SA) INC v THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS W38 OF 2004 FRENCH J 29 JULY 2004 (Corrigendum dated 2 August 2004) PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W38 OF 2004 BETWEEN: BGC CONTRACTING PTY LTD FIRST APPLICANT SHAMROCK HOLDINGS PTY LTD SECOND APPLICANT SNC-LAVALIN (SA) INC THIRD APPLICANT AND: THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS RESPONDENT JUDGE: FRENCH J DATE: 29 JULY 2004 (Corrigendum dated 2 August 2004) PLACE: PERTH CORRIGENDUM At par 90, line 7 delete ‘of the’ and insert ‘under’ so that the sentence reads: ‘... may include membership of those organisations and the availability under State Law of ...’. Associate: Dates: 2 August 2004 FEDERAL COURT OF AUSTRALIA BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 981 INDUSTRIAL LAW – registered organisations – Australian Workplace Agreements – rights of entry – inconsistency between Federal and State laws – rights of entry under State Act by State-registered organisations – narrower rights of entry under Federal Act by Federal-registered organisations and Employment Advocate – employees parties to Australian Workplace Agreements under Federal Act – whether rights of entry under State Act available for discussions with such employees – whether right of entry under State Act available for investigation of breaches of State law in relation to such employees – whether inconsistency between rights of entry under Federal and State Acts – no inconsistency – application for declaratory and injunctive relief dismissed CONSTITUTIONAL LAW – inconsistency – industrial statutes – Federal and State Acts – rights of entry onto premises by representatives of registered organisations – direct and indirect inconsistency – covering the field test – no inconsistency – application dismissed Industrial Relations Act 1979 (WA) s 49G , s 49H , s 49I , s 49J , s 49L Workplace Relations Act 1996 (Cth) s 3 , s 4 , s 170VF, s 170 VA, s 170VJ(1), s 170VN(3), s 170VQ(1) and (4), s 170 VR, s 170VT, s 83BG, s 83BH, s 285A(1), s 285B, s 285C, s 285E Judiciary Act 1903 (Cth) s 39B(1A) BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 272 cited BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 417 cited BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 569 cited Telstra Corporation Ltd v Worthing [1999] HCA 12 ; (1999) 197 CLR 61 cited Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 ; (1926) 37 CLR 466 cited In re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257 cited Croome v Tasmania [1997] HCA 5 ; (1997) 191 CLR 119 cited Ainsworth v Criminal Justice Commissioner [1992] HCA 10 ; (1992) 175 CLR 564 cited Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 cited Shuttleton v Cain (1997) 138 FLR 73 cited Woodside Energy Ltd v McDonald (2003) 119 IR 457 cited Australian Tramway Employees Association v Prahran and Malvern Tramway Trust [1913] HCA 53 ; (1913) 17 CLR 680 cited R v Findlay; Ex parte Commonwealth Steamship Owners’ Association [1953] HCA 81 ; (1953) 90 CLR 621 R v Booth; Ex parte Administrative and Clerical Officers’ Association [1978] HCA 14 ; (1978) 141 CLR 257 cited Morabito and Strain, The Section 109 ‘Cover the Field’ Test of Inconsistency: An Undesirable Legal Fiction (1993) 12 (2) U Tas Law Rev 182 BGC CONTRACTING PTY LTD, SHAMROCK HOLDINGS PTY LTD and SNC-LAVALIN (SA) INC v THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS W38 OF 2004 FRENCH J 29 JULY 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W38 OF 2004 BETWEEN: BGC CONTRACTING PTY LTD FIRST APPLICANT SHAMROCK HOLDINGS PTY LTD SECOND APPLICANT SNC-LAVALIN (SA) INC THIRD APPLICANT AND: THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 29 JULY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The parties are to file written submissions on the costs of the application within 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W38 OF 2004 BETWEEN: BGC CONTRACTING PTY LTD FIRST APPLICANT SHAMROCK HOLDINGS PTY LTD SECOND APPLICANT SNC-LAVALIN (SA) INC THIRD APPLICANT AND: THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS RESPONDENT JUDGE: FRENCH J DATE: 29 JULY 2004 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 In January 2004 representatives of the Construction Forestry Mining and Energy Union of Workers (‘CFMEU’), a State-registered union, sought entry to a site at the Burrup Peninsula where an ammonia plant is under construction. They asserted rights of entry for discussions with relevant employees under the provisions of the Industrial Relations Act 1979 (WA) (‘the State Act’). Entry was denied by contractors on site on the basis that their employees were covered by Australian Workplace Agreements (‘AWAs’) made under the Workplace Relations Act 1996 (Cth) (‘the Federal Act’). 2 The dispute over the rights of entry was taken to the Western Australian Industrial Relations Commission (‘the Commission’) by the CFMEU. The contractors, however, commenced proceedings in this Court to seek declarations and injunctions based upon the proposition that the state unions and their representatives had no rights of entry to the site with respect to any of the AWA employees. The Commission, on 24 March 2004, made a declaration that representatives of the CFMEU holding the requisite authorities under the State Act were entitled to enter the site for the purpose of holding discussions with relevant employees who wished to participate in those discussions. Carr J granted interlocutory relief restraining the CFMEU from exercising or purporting to exercise any right of entry to the site for the purposes of holding such discussions or for the investigative purposes referred to in s 49I of the State Act until the hearing and determination of the contractors’ application to this Court. 3 The proposition upon which the contractors based their claims for relief is not easy to formulate with any precision. Essentially they argued that the rights of entry under the Federal Act are limited and narrower than those conferred by the State Act. They said the Federal Act was inconsistent with the provisions for rights of entry under the State Act and that those provisions were therefore invalid to the extent of the inconsistency. They relied upon s 109 of the Constitution which gives paramountcy to Commonwealth laws over inconsistent State laws. 4 For the reasons that follow, I do not consider that there is any inconsistency and that State rights of entry remain valid for the purpose of authorised representatives of state unions having discussions with relevant employees, including employees who are eligible to become members of those unions, even though such employees may be parties to AWAs under the Federal Act. That is subject to the important limitation that the State Act cannot authorise employees to stop work for discussions at a time or in a manner which would be in breach of their obligations under AWAs. The right of entry to investigate breaches of certain State laws, awards and agreements, in my opinion, remains unaffected by the Federal law. 5 The rights of entry conferred by the State Act are conferred upon State-registered organisations for purposes related to the State Act. The rights of entry conferred by the Federal Act are conferred upon federal unions and representatives of a federal official, the Employment Advocate, for purposes related to federal awards and agreements. One does not impair the other. The limitation that rights of entry for the purpose of discussions with relevant employees does not authorise such employees to stop work in breach of the AWAs is important. Indeed the CFMEU might take the view, having regard to that limitation, that like Shylock in the Merchant of Venice, it has established its right to a pound of flesh but cannot spill a drop of blood in the exercise of that right. There are nevertheless some practical means of having discussions with relevant employees who are willing to participate which would not involve any breach of an AWA. So discussion could be conducted during a meal break. The rights of entry under the Federal Act for discussions in respect of Federal awards can only be conducted during mealtime or other breaks. These practical matters are to be worked out on the ground. The Court is not asked in these proceedings, nor required, to specify that working out in any detail. 6 For the reasons set out in more detail below, the application will be dismissed. There will be liberty to apply on the question of costs. Factual History 7 The Burrup Peninsula near Karratha in the north west of Western Australia is the site of a major industrial development including the construction of a liquid anhydrous ammonia production plant. The plant is to be located on an area of land comprising about 72 hectares, 32 hectares of which is the construction site and is fenced off for construction work. 8 On 17 December 2002, Burrup Fertilisers Pty Ltd entered into an agreement with SNC-Lavalin (SA) Inc (‘SNC’) under which SNC was to carry out the ‘engineering, procurement and construction’ of the plant on the construction site. It is not in dispute that SNC is and was at all material times in possession of the site for the purpose of enabling it to perform its construction obligations. Allan Gamble of SNC is the construction manager responsible for the overall management of the site. He has been working on the project since September 2002. 9 On the same day that SNC entered into its contract with Burrup Fertilisers it entered into an agreement with Oilfield Construction Services Ltd, now Paramount (WA) Ltd (‘Paramount’). Under that agreement Paramount was to carry out work in respect of the engineering and construction of the plant. 10 In May 2003, Paramount made an agreement with a security company, Lythven Pty Ltd trading as Shelf Security and Secretarial Support and Administrative Systems (‘Lythven’). Lythven provide security personnel to control access to the site and to carry out surveillance of the site under that agreement. 11 On 28 November 2003, Paramount made an agreement with BGC Contracting Pty Ltd (‘BGC’) under which BGC would provide construction services designated ‘site wide concrete’ on the construction site. The terms of the agreement were incorporated in a formal contract dated 19 April 2004. It is not in dispute that BGC is performing work on the site for the purpose of enabling SNC to perform its obligations and its agreement with Burrup Fertilisers. I infer, although there was no direct evidence on the point, that BGC had, at least, non-exclusive possession of the site necessary to carry out its obligations under its contract with Paramount. 12 On 19 December 2003, BGC entered into an agreement with Shamrock Holdings (WA) Pty Ltd, trading as Killarnee Formwork (‘Killarnee’), under which Killarnee was to provide concrete works and formwork at the site. By cl 27 of that agreement, BGC undertook to give Killarnee non-exclusive possession of the site or sufficient of the site to enable Killarnee to commence work. If such non-exclusive possession did not cover the whole site from the commencement of the works possession would be given from time to time of such parts of the site as were necessary to enable Killarnee to carry out the works. The ‘site’ was defined, in a somewhat circular way, as ‘... the land and other places to be made available and any other land and places made available to [Killarnee] by the Main Contractor for the purposes of the Sub-contract’ (cl 2). 13 BGC reserved a right of access to any part of the site for any purpose (cl 27.2). Killarnee was required to integrate its work with that of other contractors engaged by BGC so as not to cause any unreasonable interference with, or disruption, delay or hindrance to those other contractors. 14 At all material times all of the persons employed by BGC and working on the site were parties to AWAs made with BGC under the Federal Act. All but one of the employees of Killarnee working on the site were parties to AWAs with Killarnee. Four of those employees may not have had valid AWAs because more than 21 days had elapsed between their execution and filing at the Australian Industrial Relations Commission (‘AIRC’). There was some evidence adduced by Killarnee that it was the practice of the office of the Employment Advocate in Perth to accept for filing AWAs lodged electronically more than 21 days after they were actually signed. This is evidently done on the basis that the electronic lodgment somehow constitutes a signing of the agreement by the employer. Beyond the statement that this was based on ‘internal legal advice’ no exposition of a legal justification for this surprising practice was advanced. In the event, counsel for Killarnee did not press the contention that the late lodged AWAs were valid because of their electronic lodgment. It was also conceded by counsel for Killarnee that one of its employees, Mr Kuret, who was employed on site between 26 January 2004 and 3 March 2004, was not employed under a valid AWA. In the end, given the nature of the relief being claimed, nothing turns on the fact that some of the Killarnee employees were not working under AWAs. 15 The AWAs made by BGC with its employees were in a common form. They made comprehensive provision for the terms and conditions of employment. Clause 20 provided for continuity of service as follows: ‘ CONTINUITY OF SERVICE (1) In order to maintain a continuity of service to our client and to ensure the competitiveness of the business, the employee agrees not to participate in actions or activities which are detrimental to the interests of the employer (eg unauthorised stop-work meetings, strike action, work bans or limitations or the like) while employed under the terms of this agreement. (2) Issues and grievances will be handled through the dispute settling procedure outlined in Clause 19. (3) Failure to comply with sub-clause (1) above may result in disciplinary action and/or termination.’ 16 Dispute settling procedures were set out in cl 19. Under those procedures the employee was to raise any issue with his or her direct supervisor either directly or through another BGC employee. If not resolved the matter would be referred to the Project Manager who would meet with the employee and, where applicable, his or her representative. If unable to resolve the dispute the Project Manager was required to involve the Civil Operations Manager and/or the Chief Executive Officer or delegate at a formal meeting. The ultimate recourse was to arbitration by an arbitrator, agreed by the parties, or appointed by the Chairman of the Western Australian Chapter of the Institute of Arbitrators. 17 Similar provisions appeared in the AWAs between Killarnee and its employees, cl 18 providing for continuity of service in terms virtually identical to cl 20 of the BGC AWA and cl 17 providing for dispute settling procedures by a process similar to that under the BGC AWA. 18 The execution of the works by BGC and Killarnee was so arranged that employees of BGC were required to work alongside employees of Killarnee. If Killarnee employees were to stop work for discussions with union representatives then those stoppages could affect the work of BGC employees. By way of example, according to the uncontested evidence of Gregory Heylen, BGC’s General Manager Civil, BGC employees required to backfill concrete structures on the site could not do so until Killarnee employees had positioned the concrete and erected the structures. BGC employees could be held up if the erection of the structures by Killarnee employees were delayed. 19 It is common ground on the pleadings that on or about 17 January 2004, Michael Buchan and Mark Hudston, authorised representatives of the CFMEU under the State Act, sought to exercise a right of entry to the site pursuant to Div 2G of Pt II of the State Act. A security guard employed by Lythven refused them permission to enter. 20 Unchallenged evidence was given at the hearing by Ernest Thompson, the Managing Director of Killarnee, that on 19 February he was telephoned by Mr Buchan who asked to meet him at the gate to the site. Mr Thompson telephoned SNC’s Construction Manager, Allan Gamble, and BGC’s Project Manager, Peter Coleman, to ask if it were alright to meet Mr Buchan. Subsequently he went to the gate with three foremen from Killarnee and met Mr Buchan and a Mr Lovett from the Metal Workers Union. Mr Lovett asked him some questions about the Killarnee AWA. Mr Buchan handed him a letter asking for entry to the site. The letter, dated 18 February 2004, invoked ss 49H and 49I of the State Act as the basis for the right of entry with respect to relevant employees of Killarnee. 21 Mr Thompson told Buchan and Lovett that he had no authority to permit them to enter the site. He then rang Allan Gamble who said that the union representatives would have to give 24 hours notice to get on site. He also consulted with Mr Buckeridge of BGC who said the union representatives would have to apply in order to enter. The evidence did not indicate what kind of application was meant. Procedural History – Proceedings in the State Commission and in the Federal Court 22 The procedural history leading up to the commencement of the present application is set out in interlocutory judgments of Carr J, which are referred to below. 23 Following the refusal of entry to Messrs. Buchan and Hudston on 17 January 2004, the CFMEU commenced proceedings in the Commission on 20 January 2004. The application then filed was for a compulsory conference pursuant to s 44 of the State Act. The respondents to that application were BGC, Killarnee and SNC. A conciliation conference took place on 23 January 2004 before the Commission. The conference was adjourned to 3 February 2004 to enable Mr Buckeridge of BGC to have discussions with various workers on site and to report back to the Commission. The conference reconvened on 4 February 2004. BGC’s solicitor who attended both conferences raised the question of inconsistency between the Federal and State Acts in relation to sites at which AWAs were in force. 24 The CFMEU, pursuant to a direction from Commissioner Kenner, filed an amended application on 9 February 2004. A notice of answer and counter proposal were filed on 13 February 2004. The question of the validity of the State provisions in relation to sites covered by AWAs was raised in the notices filed by BGC and Killarnee. 25 On 12 February 2004, the Australian Workers Union served a written request on SNC seeking access to the site on 13 February 2004 ‘to meet with union members and potential members’. On the same date the Commission issued an amended notice of hearing referring to the State Act and to the proceedings initiated in the Commission which it described as being in the matter of ‘right of entry’. It named the CFMEU, SNC, BGC and Killarnee in the notice. The notice indicated that the Commissioner would sit at Karratha to hear the matter on 23 February 2004. 26 On 17 February 2004, the present proceedings were instituted in this Court. On 19 February, counsel for BGC asked the Commission to stay its proceedings until the Federal Court had heard and determined the application before it. That request was refused. An application for urgent interlocutory relief was brought before Carr J in these proceedings on 20 February 2004. BGC, which was then the only applicant, sought an order restraining the CFMEU from taking any further steps in the pending proceedings in the Commission and from purporting to exercise rights of entry under the State Act. The claim for interlocutory relief was refused upon the undertaking given by the CFMEU that it would not seek any orders from the Commission against BGC and would immediately discontinue its proceedings in the Commission in so far as they involved a claim for relief against BGC. BGC was given liberty to renew its application on two days written notice to the CFMEU – BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 272. 27 On 15 March 2004, Commissioner Kenner published his reasons for refusing BGC’s request that the proceedings in the Commission be stayed pending the hearing and determination of the Federal Court action. In the event BGC applied to Carr J on 18 March 2004, under the liberty previously reserved. Carr J ordered on that day that the CFMEU be restrained from exercising or purporting to exercise any right of entry to the site for the purposes of holding discussions with employees of BGC or Killarnee or for the other investigative purposes referred to in s 49I of the State Act in relation to those employees or their employment. The CFMEU was also restrained from taking any further steps in the pending proceedings in the Commission – BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 417. For reasons which appear more fully from the most recent interlocutory judgment given by Carr J, the Commission nevertheless proceeded and on 24 March 2004 made a declaration that representatives of the CFMEU holding the requisite authority under the State Act were entitled to enter the site ‘... for the purpose of holding discussions with relevant employees of [Killarnee] who wish to participate in those discussions’. A renewed application to extend the interlocutory relief came before Carr J on 16 April 2004 and on 7 May 2004 his Honour extended the injunctions previously ordered until the hearing of these proceedings or until further order – BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 569. 28 The present proceedings progressed through various interlocutory steps to hearing on 5 July 2004. Killarnee and SNC were joined as applicants along the way. The Attorney-General for Western Australia and the Minister for Employment and Workplace Relations of the Commonwealth intervened. The Pleadings and Relief Claimed 29 The statements of claim filed by each of the applicants, in so far as they allege matters of fact, are not substantially disputed by the CFMEU except in respect of the contention that all the workers on site are and were at 17 January 2004, covered by AWAs. 30 Each of the applicants contends that all the employees on site were and are parties to AWA agreements and that ‘... any right of entry under the State Act is inconsistent with the rights of entry under the Federal Act and is therefore invalid to the extent of the inconsistency by virtue of s 109 of the Constitution’. In the alternative it is asserted by each of the applicants that ‘... if Division 2G of the State Act is not invalid in purporting to give authorised representatives of the [CFMEU] a right of entry to the site in respect of the workers, by virtue of s 109 of the Constitution, it is invalid by virtue of s 170VR(1) of the Federal Act. 31 In each case the relief claimed is the same: ‘1. A declaration that the Respondent does not have any rights under Division 2G of the Industrial Relations Act 1979 (WA) (‘the State Act’) in respect of premises known as the Ammonia Plant Construction Project, comprised within Certificate of Title Volume 3125 Folio 243, in respect of persons working on the site who are parties to Australian Workplace Agreements registered pursuant to Part VID of the Workplace Relations Act 1996 (‘the Federal Act’). 2. An injunction restraining the Respondent whether by its officers or authorised representatives from purporting to exercise any right pursuant to Division 2G of the State Act in respect of persons working on the site who are parties to Australian Workplace Agreements registered pursuant to Part VID of the Federal Act. 3. Costs.’ The reference to Div 2G of the State Act should be taken as a reference to Div 2G of Pt II of the State Act. 32 The applicants claim relief which they say is not dependent upon them establishing that all workers on site were and are covered by AWAs. The true position is, as I have found earlier in these reasons, that most, but not all, workers were covered by AWAs. The workers not covered were employees of Killarnee. 33 The CFMEU takes a jurisdictional objection to the BGC claim. It relies upon its discontinuance of proceedings against BGC in the Commission and the limited form of declaration issued by the Commission on 24 March 2004 which related to employees of Killarnee. Reliance was also placed on a letter sent by the CFMEU to BGC on 18 March 2004 stating that, on the basis of facts disclosed by BGC, the CFMEU had no intention of exercising any right of entry under the State Act in relation to any employees of BGC at the site. The CFMEU says that by reason of these matters there is no ‘justiciable controversy’ between BGC and it in these proceedings and that the Court therefore has no jurisdiction to entertain BGC’s application. In relation to the second and third applicants’ pleadings, apart from the dispute which eventually evaporated, as to the universality of the AWA coverage over workers at the site, the CFMEU joins issue on the question of the existence of a right of entry under the State Act notwithstanding the provisions of the Federal Act. In considering that question it is necessary first to have regard to the Federal and State Acts and to the particular provisions said to be inconsistent. The Industrial Relations Act 1979 (WA) – Overview 34 The State Act is described in its long title as: ‘An Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organizations of employers and employees, and for related purposes.’ The State Act applies to industry geographically or functionally linked to the State of Western Australia in various ways set out in s 3. Its objects are stated in s 6. One of those objects is ‘to promote collective bargaining and to establish the primacy of collective agreements over individual agreements’ (s 6(ad)). 35 The State Act establishes the Commission (Pt II Div 1 and 2). The Commission is empowered to make awards (Pt II Div 2A, s 34) and to register industrial agreements (Pt II Div 2B, s 41). Ancillary provisions relating to enforcement and investigation are found in Div 2F of Pt II which concerns the ‘Keeping of Employment Records’ (s 49D) and access to such records (s 49E). Division 2G provides, according to its title, for ‘Right of entry and inspection by authorised representatives’ (ss 49G–49O). The rights so created are conferred upon representatives of industrial organisations of employees registered under the State Act. Registration of organisations is provided for in Div 4 of Pt II (s 53). 36 Other parts of the State Act relate to constituent authorities including the Public Service Arbitrator and Appeal Boards and the Railways Classification Board (Pt IIA), enforcement of the State Act, awards, industrial agreements and orders (Pt III), the Western Australian Industrial Appeal Court (Pt IV), the Registrar and officers of the Commission (Pt V), freedom of association (Pt VIA), employer-employee agreements (Pt VID) and miscellaneous matters (Pt VII). The Industrial Relations Act 1979 (WA) – Rights of Entry and Inspection for Authorised Representatives 37 The provisions of the State Act directly relevant for present purposes are those found in Div 2G of Pt II relating to rights of entry and inspection. This Division was inserted into the State Act by the Labour Relations Reform Act 2002 (WA). Key definitions are set out in s 49G: ‘ "authorised representative" means a person who holds an authority in force under this Division; "relevant employee" , when used in connection with the exercise of a power by an authorised representative of an organization, means an employee who is a member of the organization or who is eligible to become a member of the organization.’ Section 7(1) defines ‘organization’ as ‘an organization that is registered under Division 4 of Part II’. 38 There is a right of entry conferred by s 49H upon ‘authorised representatives’ of organisations: ‘(1) An authorised representative of an organization may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions. (2) If an award, order or industrial agreement that extends to the relevant employees makes provision as to entry onto premises by an authorised representative and – (a) does not require notice to be given by the representative; or (b) requires a specified period of notice to be given by the representative, the authorised representative is not required to give notice under this section. (3) If subsection (2) does not apply, the authorised representative is not entitled to exercise a power conferred by this section unless the authorised representative has given the employer of the employees concerned at least 24 hours’ written notice.’ 39 A separate right to enter premises to investigate breaches of the State Act and related statutes, awards, orders and industrial agreements is conferred by s 49I. This is a right also to be exercised by ‘an authorised representative of an organization’. Section 49I provides: ‘(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of this Act, the Long Service Leave Act 1958 , the MCE Act , the Occupational Safety and Health Act 1984 , the Mines Safety and Inspection Act 1994 or an award, order, industrial agreement or employer-employee agreement that applies to any such employee.’ The remaining subsections of s 49I relate to the powers of authorised representatives to inspect records and other documents and limitations on those powers. 40 The authorised representative cannot require an employer to produce an employment record of an employee who is party to an employer/employee agreement and has requested the employer in writing that the record not be available for inspection by authorised representatives (s 49I(3)). The powers conferred by s 49I cannot be exercised in order to investigate a suspected breach of an employer/employee agreement to which a relevant employee is a party unless the authorised representative is authorised in writing by that relevant employee to carry out the investigation (s 49I(5)). There is a requirement for written notice to be given to an employer before production of employment records or other documents can be required (s 49I(6)). 41 An authority is issued to a representative of an organisation for the purposes of Div 2G by the Registrar upon application by the secretary of the organisation. Section 49J provides, inter alia: ‘(1) The Registrar, on application by the secretary of an organization of employees to issue an authority for the purposes of this Division to a person nominated by the secretary in the application, must issue the authority. (2) The Registrar must not issue an authority for the purposes of this Division to a person who has held an authority under this Division that has been revoked under subsection (5) unless the Commission in Court Session on application by any person has ordered that the authority be so issued. (3) A person to whom an authority is issued is an authorised representative of the organization on whose behalf the application for the authority was made. (4) The authority remains in force unless it is revoked or suspended under this section.’ Subsections (5) to (9) are related to the revocation of authorities. 42 The right of entry does not extend to premises principally used for habitation by the employer and his or her household (s 49K). The authority must be shown on request and provision for this is made in s 49L: ‘(1) If – (a) a person proposes to enter, or is on, premises in accordance with section 49H or 49I; and (b) the occupier requests the person to show his or her authority, the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the authority in force under this Division. (2) In this section – " occupier " includes a person in charge of the premises.’ 43 The right of entry is supported by a prohibition against refusal of entry in s 49M: ‘(1) The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the premises under section 49H or 49I. (2) A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by this Division.’ The Workplace Relations Act 1996 (Cth) - Overview 44 The Federal Act is described in its long title as ‘An Act relating to workplace relations, and for other purposes’. Its principal object is said to be: ‘... to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia ...’ (s 3). The various means by which this principal object is to be achieved are set out in s 3. They include: ‘(b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and (c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act;’ 45 The following definitions appear in s 4: ‘" occupier ", in relation to premises, includes a person in charge of the premises; ... " premises " includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place;’ 46 The Australian Industrial Relations Commission (‘AIRC’) is established by Pt II of the Federal Act (s 8(1)). It has the functions conferred on it by the Federal Act and by the Registration and Accountability of Organisations Schedule to the Federal Act (s 8A). It is supported administratively by the Australian Industrial Registry (Pt IV). Part III of the Federal Act was repealed in 1993. 47 The office of the Employment Advocate is established by Pt IVA (s 83BA). The functions of the Employment Advocate are set out in s 83BB(1) of the Federal Act. They include the following: ‘(a) providing assistance and advice to employees about their rights and obligations under this Act; (b) providing assistance and advice to employers (especially employers in small business) about their rights and obligations under this Act; (c) providing advice to employers and employees, in connection with AWAs, about the relevant award and statutory entitlements and about the relevant provisions of this Act; (d) performing functions under Part VID, including functions relating to the filing and approval of AWAs and ancillary documents; (e) investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs; ... (i) any other functions given to the Employment Advocate by this Act, the Registration and Accountability of Organisations Schedule or any other Act; (j) any other functions prescribed by the regulations.’ The Employment Advocate is subject to direction by the Minister (s 83BC). 48 Division 2 of Pt IVA provides for the appointment, by the Employment Advocate, of authorised officers and for their powers, including powers to enter and inspect premises. These are referred to in more detail later in these reasons. The Federal Act also provides for inspectors to be appointed by the Minister (s 84). They have power to enter and inspect premises to which awards or certified agreements apply (s 86(1A)). The AIRC can request the Secretary of the Department to have an inspector investigate a matter concerning the safety of employees or others which has arisen in relation to an industrial dispute (s 87). 49 The Federal Act contains provisions for Dispute Prevention and Settlement (Pt VI) and the functions and the powers of the AIRC in relation thereto. Part VIA relates to Minimum Entitlements of Employees, Pt VIB to Certified Agreements, Pt VID to Australian Workplace Agreements (referred to in detail below), Pt VIE to the no disadvantage test and Pt VII to cooperation between Commonwealth and State industrial authorities. Part VIII concerns penalties and remedies for contravention of awards and orders. Part IX provides for entry and inspection by organisations and is dealt with in more detail below. Part X has been repealed. Part XA contains provisions relating to freedom of association. Part XI relates to offences against the Federal Act. The remaining parts concern costs in proceedings (Pt XII), miscellaneous provisions (Pt XIII), the jurisdiction of the Federal Court (Pt XIV), matters referred by Victoria (Pt XV) and provision for contract outworkers in Victoria in the textile, clothing and footwear industries (Pt XVI). The Workplace Relations Act – Australian Workplace Agreements 50 Part VID of the Federal Act provides for AWAs. A key provision is s 170VF which provides in subs (1): ‘An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee.’ Section 170VG deals with the content of AWAs. It requires that the employer must ensure that the AWA includes a dispute resolution procedure. If it does not include such a procedure, it is taken to include the model procedure prescribed by the Regulations. AWAs have a nominal expiry date, which cannot be more than three years after the AWA date. The AWA date is defined in s 170VA: ‘... means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.’ There is provision for the extension of the nominal expiry date (s 170VH(3)). The period of operation of AWAs is specified in s 170VJ(1): ‘An AWA for a new employee starts operating on the later of: (a) the day after a filing receipt is issued for the AWA; or (b) the day specified in the AWA as the starting day; or (c) the day the employment commences; and stops operating at the earlier of the following times: (d) the end of the day when a refusal notice is issued in relation to the AWA; (e) the time when a termination under section 170VM takes effect; (f) the time when another AWA between the employer and employee starts to operate.’ For an existing employee an AWA will begin to operate on the later of the day following the issue of an approval notice or the day specified in the AWA as the starting day. It stops operating at the time of termination under s 170VM or the commencement of another AWA between the employer and employee (s 170VJ(2)). 51 There is provision for the appointment of bargaining agents in relation to the making, approval, variation or termination of AWAs (s 170VK). 52 AWAs are required to be filed with the Employment Advocate (s 170VN(1)). The Employment Advocate must issue a receipt to the person who filed the document if satisfied that filing requirements have been met or that a failure to meet filing requirements has not disadvantaged, and will not disadvantage, a party to the AWA (s 170VN(2)). The time limit for filing an AWA is set out in s 170VN(3): ‘The Employment Advocate must not issue a filing receipt for an AWA unless the AWA was filed within 21 days after the AWA date.’ Filing requirements are specified in s 170VO. Sections 170VPA to 170VPK deal with the approval of AWAs and ancillary documents. They comprise Div 5 of Pt VID. 53 Division 6 of Pt VID deals with the effect of an AWA. It comprises ss 170VQ to 170VU inclusive. 54 Key parts of s 170VQ are as follows: ‘(1) During its period of operation, an AWA operates to the exclusion of any award that would otherwise apply to the employee’s employment. This subsection has effect subject to subsections (2) and (3). ... (4) During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee’s employment.’ Subsection 170VQ(6) defines the relationship between AWAs and certified agreements made under the Federal Act. Certified agreements prevail over AWAs to the extent of any inconsistency subject to the conditions and qualifications set out in that subsection, which are not material for present purposes. 55 The relationship between AWAs and State laws is set out in s 170VR which is as follows: ‘(1) Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency. (2) Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter: (a) occupational health and safety; (b) workers’ compensation; (c) apprenticeship; (d) any other matter prescribed by the regulations. (3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (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 AWA. (4) To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations. (5) In this section: Commonwealth law means an Act or any regulations or other instrument made under an Act. prescribed conditions means conditions that are identified by the regulations. State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.’ 56 Section 170VT provides: ‘(1) A party to an AWA must not breach the AWA.’ 57 Division 7 of Pt VID deals with enforcement and remedies and provides penalties for contravention of provisions of Pt VID. Relevantly, s 170VV provides: ‘(1) An eligible court may make an order imposing a penalty on a person who contravenes a penalty provision. (2) The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases. (3) An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by a party to the AWA or ancillary document. (4) In this section: penalty provision means subsection 170VK(2) or (4), section 170VP, section 170VT, section 170VU, subsection 170WE(1), subsection 170WF(1), subsection 170WG(1) or (2) or subsection 170WH(1) or (2).’ There are provisions for damages for breaches of AWAs (s 170VW), compensation for shortfall in entitlements (s 170VX), the grant of injunctions (s 170VZ), interest on judgments (s 170W) and a small claims procedure (s 170WA). 58 In Div 8 there is a limited immunity conferred on industrial action in respect of AWAs (s 170WC(1)). Division 9 contains miscellaneous provisions including a provision prohibiting the disclosure by Registry officials of information that the official knows or has reasonable grounds to believe would identify a person as having been a party to an AWA (s 170WHB(1)). This is subject to a number of exceptions including disclosure authorised in writing by the AWA party. Hearings by the AIRC in relation to AWAs under Pt IVD are to be held in private (s 170WHD). The Workplace Relations Act – Rights of Entry for the Employment Advocate with Respect to AWAs 59 Division 2 of Pt IVA provides for the appointment by the Employment Advocate of authorised officers. The key provisions of s 83BG are as follows: ‘(1) The Employment Advocate may, by instrument in writing, appoint as an authorised officer: (a) a person who is appointed or employed by the Commonwealth; or (b) a person who is appointed or employed by a State or Territory. (2) In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Employment Advocate.’ Section 83BH deals with the powers of authorised officers. In the relevant parts it provides: ‘(1) An authorised officer may exercise powers under this section for the following purposes ( compliance purposes ): (a) for the purpose of ascertaining whether the terms of an AWA have been complied with, or are being complied with; (b) for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with; (c) for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with. (2) The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes. (3) An authorised officer may, without force, enter: (a) a place of business in which the authorised officer has reasonable cause to believe that work to which an AWA applies is being performed or has been performed; or (b) a place of business in which the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes; or (c) a place of business in which the authorised officer has reasonable cause to believe that a breach of Part VID (AWAs) or Part XA (freedom of association) has occurred, is occurring or is likely to occur. (4) An authorised officer may do any of the following in a place referred to in subsection (3): (a) inspect any work, material, machinery, appliance, article or facility; (b) as prescribed by the regulations, take samples of any goods or substances; (c) interview any person; (d) require a person who has the custody of, or access to, a document to produce the document to the authorised officer within a specified period;’ There is a number of ancillary subsections. There is also a separate power for an authorised officer to enter a place of business in which a person ordinarily performs work or conducts business if the authorised officer has reasonable cause to believe that the person has information relevant to compliance purposes (s 83BH(7A)). The Workplace Relations Act – Rights of Entry and Inspection for Registered Organisations 60 Part IX of the Federal Act relates to entry and inspection of premises by organisations. The authority to enter upon and inspect premises depends upon the issue of a permit by the Registrar under s 285A of the Federal Act. Section 285A(1) provides: ‘A Registrar may, on application by an organisation in accordance with the regulations, issue to an officer or employee of the organisation a permit in the form prescribed for the purposes of this section.’ Permits remain in force generally for three years unless earlier revoked or until the permit holder ceases to be an officer or employee of the relevant organisation. 61 The circumstances in which a permit holder may enter premises are set out in s 285B. Relevantly they provide: ‘(1) This section applies if a person who holds a permit in force under this Division suspects that a breach has occurred, or is occurring, of: (a) this Act; or (b) an award, an order of the Commission, or a certified agreement, that is in force and binds the organisation of which the person is an officer or employee. (2) For the purpose of investigating the suspected breach, the person may enter, during working hours, any premises where employees work who are members of the organisation of which the person is an officer or employee.’ Subsections (3) and (4) relate to the powers of a permit holder after entering premises to require the production of time sheets, pay sheets and other documents, other than an AWA or ancillary document. They also provide for the inspection or viewing of work, material, machinery or appliances and interviewing employees who are: ‘(i) members of the organisation of which the person is an officer or employee; or (ii) eligible to become members of that organisation; about the suspected breach.’ (s 285B(3)(c)). 62 Section 285C provides, relevantly: ‘(1) Subject to subsections (2) and (3), a person who holds a permit in force under this Division may enter premises in which: (a) work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and (b) employees who are members, or eligible to become members, of that organisation work; for the purposes of holding discussions with any of those employees who wish to participate in those discussions. (2) The person may only enter the premises during working hours and may only hold the discussions during the employees’ meal-time or other breaks. (3) The person may not enter premises if all of the following conditions are satisfied: (a) no more than 20 employees are employed to work at the premises; (b) all the employees at the premises are employed by an employer who is the holder of a conscientious objection certificate in force under section 180 of the Registration and Accountability of Organisations Schedule, that has been endorsed by the Registrar as provided in subsection (4); (c) none of the employees employed at the premises is a member of an organisation.’ 63 A person is not entitled to enter or remain on premises under s 285B or 285C unless he or she shows the occupier of those premises his or her permit upon request (s 285D). The power to enter premises is conditioned upon prior notice to the occupier of at least 24 hours (s 285D(2)). The entitlement does not allow a permit holder to enter any part of premises used for residential purposes except with the permission of the occupier (s 285D(3)). Section 285E deals with civil penalties in relation to ss 285B and 285C: ‘(1) A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee. (2) The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or 285C. (3) An employer must not refuse or fail to comply with a requirement under paragraph 285B(3)(a) or subsection 285B(4). (4) A person must not otherwise intentionally hinder or obstruct a person exercising powers under section 285B or 285C. To avoid doubt, a failure to agree on a place or a time as mentioned in paragraph 285B(4)(a) or (c) does not constitute hindering or obstructing a person exercising such powers.’ 64 Section 285E is a penalty provision for the purposes of s 285F of the Federal Act under which civil penalties can be imposed for contravention of penalty provisions. Jurisdiction 65 The question of the Court’s jurisdiction was raised by the CFMEU in relation to BGC’s claim for relief. It was submitted by the CFMEU that there is no justiciable controversy involving BGC as there is no intention by the CFMEU or its authorised representatives to exercise any right of entry with respect to BGC employees. 66 The relevant jurisdiction in this case is that conferred on the Court by s 39B(1A) of the Judiciary Act 1903 (Cth): ‘ In any matter ... arising under any laws made by the Parliament...’ There is a more narrowly defined jurisdiction conferred on the Court by s 412 of the Federal Act. It is common to both grants of jurisdiction that, in accordance with s 76 of the Constitution, it is jurisdiction in a ‘matter’, that is the subject matter for determination in a legal proceeding. It requires that there be some immediate right, duty or liability to be established by the determination of the Court – In re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257 at 265 . The argument advanced by the CFMEU in this case goes more to standing than to the heart of the Court’s jurisdiction. But the severance of questions going to standing from those directed to the constitutional requirement that federal jurisdiction be exercised with respect to a ‘matter’ can be ‘conceptually awkward if not impossible’ – Croome v Tasmania [1997] HCA 5 ; (1997) 191 CLR 119 at 132. It is in any event well established that where declaratory relief is sought it must be directed to the determination of legal controversies not to abstract or hypothetical questions. The applicant for declaratory relief must have ‘a real interest’ – Ainsworth v Criminal Justice Commissioner [1992] HCA 10 ; (1992) 175 CLR 564 at 582. 67 In the present case I am satisfied that BGC has demonstrated a real interest in the question it seeks to agitate before the Court. Even if the right of entry is exercised only with respect to its contractors’ employees on the site, it could have direct practical effects upon the performance of works by BGC itself. This follows from the interdependency of the functions of BGC and Killarnee which was the subject of unchallenged evidence. 68 In my opinion there is a matter before the Court between BGC and the CFMEU and, if standing be a separate question, BGC has standing to bring the matter to the Court. The objection to jurisdiction with respect to BGC is rejected. The Rights of Entry and the Relief Claimed 69 Before considering questions of inconsistency it is necessary to consider the scope of the rights in contention. Their scope depends upon the construction of the relevant provisions of the State Act. The declaratory relief sought would determine that the CFMEU ‘does not have any rights under Division 2G [of Part II] of the Industrial Relations Act 1979 (WA) ... in respect of premises known as the Ammonia Plant Construction Project ... in respect of persons who are parties to Australian Workplace Agreements registered pursuant to Part VID of the Workplace Relations Act 1996 ...’. 70 Strictly speaking the only ‘right’ conferred by Div 2G on a registered organisation is the right, under s 49J, to have a person, nominated by the secretary of the organisation, issued with authority for the purposes of the Division. That person has the status of an ‘authorised representative’ as defined in s 49G. The rights of entry and inspection conferred by Div 2G are devolved upon authorised representatives. The authority conferred pursuant to s 49J does not relate to any particular premises or employees nor to any class of premises or employees. It is simply a right to the designation of the organisation’s nominees as authorised representatives. The relief claimed cannot therefore relate to that right. 71 The other rights to which Div 2G gives rise are conferred on authorised representatives and may be classified as follows: 1. The right to enter, during working hours, any premises where relevant employees work for the purpose of holding discussions with any of the relevant employees who wish to participate in those discussions (s 49H(1)). 2. The right to enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of the Industrial Relations Act 1979 (WA), the Long Service Leave Act 1958 , the MCE Act, the Occupational Safety and Health Act 1984 , the Mine Safety and Inspection Act 1994 or an award, order, industrial agreement or employer-employee agreement that applies to any such employee (s 49I). 3. The right to inspect records and other documents (s 49I). 72 The right to enter premises under ss 49H and 49I is conditioned upon the characterisation of those premises as ‘premises where relevant employees work’. This condition does not in terms exclude premises where all the relevant employees are also parties to AWAs. The purpose for which the right of entry under s 49H must be exercised relates to discussions with relevant employees, a term which would include relevant employees who are parties to AWAs. 73 Assuming the declaratory and injunctive relief sought applies to the rights conferred by s 49H upon authorised representatives it would seek to limit their scope by determining their non-existence or non-application, in respect of the specified premises and in respect of persons working there who are parties to AWAs. A question arises about the precise meaning of such a limitation in its application to s 49H rights of entry. What it seems to mean is that the rights of entry would not extend to entry for the purpose of holding discussions with relevant employees who are parties to AWAs. This was the way in which the relief seemed to be understood by counsel for the applicants. 74 The application of the declaratory and injunctive relief claimed to the right of entry under s 49I is also not without difficulty. The right of entry for investigative purposes is not necessarily exercised in respect of any persons at all. It is conditioned upon the characterisation of the premises as ‘premises where relevant employees work’. ‘Relevant employees’ is a class which can include persons who are parties to AWAs, for being party to an AWA does not remove a person’s eligibility for membership of a State-registered organisation. 75 It is difficult to see how the investigative purposes conditioning the rights of entry under s 49I can intelligibly be limited so as not to include investigations into breaches with respect to persons who are parties to AWAs. It is not breaches of the AWAs that are in issue here. No question is likely to arise, in respect of a party to an AWA, of breaches of awards, orders, industrial agreements or employer-employee agreements under State law. That aspect of the investigative purpose does not purport to extend to AWAs under the Federal Act. Breaches of public statutes of the State may or may not relate, in particular circumstances, to a particular employee or employees. But sensible limitations to confine the right of entry by excluding investigations into breaches of State law relating only to AWA employees and preserving other purposes would be difficult to formulate. 76 The limitations on rights of entry said to underpin the relief claimed are difficult to define with precision. They are said to flow from the operation of s 109 of the Constitution upon the State Act rendering it inoperative to the extent of inconsistency with the Federal Act. The inconsistencies are said to exist between the confined provisions of the Federal Act dealing with the rights of entry and the broader rights of entry conferred by the State Act. It is necessary therefore to turn to s 109 of the Constitution and in light of its judicially established application, to consider the relevant provisions of the Federal and State Acts. Inconsistency and Section 109 77 Section 109 of the 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.’ The inconsistency between Commonwealth and State laws that will attract the application of s 109 may be direct or indirect. 78 Direct inconsistency will exist where: (i) one law requires what the other forbids; (ii) the State law imposes an obligation greater than that for which the Federal law has provided; (iii) the State law would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Federal law. Telstra Corporation Ltd v Worthing [1999] HCA 12 ; (1999) 197 CLR 61 at 76 (iv) one statute takes away a right conferred by another Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 ; (1926) 37 CLR 466 at 478. 79 Indirect inconsistency will arise where the Commonwealth law is intended to deal exhaustively with a particular subject matter and the State law purports also to deal with that subject matter. In Clyde, Isaccs J put it thus (at 489): ‘... the vital question would be: Was the second Act [the Commonwealth Act] on its true construction intended to cover the whole ground and, therefore, to supersede the first [State Act]? ... If, however, a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.’ 80 The same test was expressed more recently by Gleeson CJ in Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 (at 178): ‘There is no direct inconsistency involved in a State law declaring the existence of a right or liability which is the same as that arising, directly or indirectly, under a Commonwealth law. The question is whether the Commonwealth law evinces an intention "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] HCA 12 ; (1930) 43 CLR 472 at 483 per Dixon J]’ It is not sufficient, in order to establish an intention to ‘cover the field’ that the Federal Act deals with a wide range of matters. As Anderson J said in Shuttleton v Cain (1997) 138 FLR 73 (at 76): ‘There are many cases which show that State laws can quite closely co-exist with the Commonwealth Act in their application to persons bound by the latter or by awards made under it.’ And further (at 77): ‘The question in each case is whether the Commonwealth statute shows an intention to cover the precise subject matter and provide exhaustively what the law on it shall be.’ 81 The identification of an intention to cover the field is a matter of judicial evaluation followed by a conclusionary declaration of legislative intention. That conclusion may be accepted as legitimate if the judgment is made according to generally accepted modes of construction. This is so for any process of statutory interpretation. The assessment of whether a law is intended to ‘cover the field’ of its subject matter is perhaps less contestable by reference to principle than findings about statutory meaning and application generally. That is because of its holistic or synthetic character. The test has been criticised for the ambiguity and uncertainty of its elements which ‘render it largely unpredictable and confer excessive discretion on the courts’ – Morabito and Strain , The Section 109 ‘Cover the Field’ Test of Inconsistency; An Undesirable Legal Fiction (1993) 12 (2) U Tas Law Rev 182 at 192. Nevertheless it is hallowed by long-standing High Court authority and is unlikely to be changed by anything less than a constitutional amendment. It is the principal basis of the argument for inconsistency in the present case. 82 The applicants contended that there is direct and indirect consistency between the provisions of the Federal and State Acts relating to rights of entry in respect of employees who are parties to AWAs. 83 In the first applicant’s submissions, comparisons were made between the obligations imposed upon employers by ss 49H and 49I of the State Act to allow entry to authorised representatives and the obligations imposed by ss 285B and 285C of the Federal Act. There is no right of entry under the Federal Act to hold discussions corresponding to that under s 49H. Section 285C of the Federal Act confers such a right only in respect of premises in which ‘work is being carried out to which an award applies ...’. An AWA operates to the exclusion of any award that would otherwise apply (s 170VQ). In any event s 49H, it was said, imposes greater obligations than s 285C. It allows for discussions at any time during working hours. Section 285C allows for discussions only during meal-time or other breaks and requires 24 hours’ notice. 84 Section 49I was also said to impose greater obligations than its Federal equivalent, which is s 285B of the Federal Act. The latter section confers a right of entry only where the employees at the premises are members of the organisation of which the permit holder purporting to exercise the right of entry is an officer or employee (s 285B(2)). Moreover, it is said, the section does not confer a right of entry to investigate a suspected breach of an AWA. That is limited to an authorised officer appointed by the Employment Advocate under s 83BG(1). This may be questionable having regard to the express prohibition against breaches of AWAs in s 170VT(1) and the power to investigate a breach of the Federal Act under s 285B(1). It is not necessary however for present purposes to decide that question. 85 There was said to be a further inconsistency between Div 2G of Pt II of the State Act and the AWAs themselves. The provisions relating to the latter were said to envisage a direct relationship between employer and employee. Third party interference was said to be strictly limited. AWAs, it was submitted, specifically exclude rights which would ordinarily vest in registered organisations party to a Federal award or Federal certified agreement. 86 The applicants further submitted that Div 1 and 2 of Pt IVA and Div 2A of Pt IX of the Federal Act constitute a comprehensive and exclusive code governing rights of entry in respect of AWA employees. These, they argued, manifest an intention on the part of the Commonwealth to cover the field. 87 In my opinion there is neither direct nor indirect inconsistency between the provisions of the Federal and State Acts relating to rights of entry. Rights of entry for registered organisations under the Federal Act apply to organisations registered under that Act. The right of entry under s 285C for the purpose of discussions relates to premises in which work is being carried out to which an award made under the Federal Act applies. The right of entry under s 285B to investigate breaches relates to breaches of the Federal Act and awards, orders or certified agreements made under its provisions. The repositories of the rights and their subject matter differ from those identified in the State Act and the fact that each Act deals with ‘rights of entry’ is insufficient to demonstrate either direct inconsistency or entry by the State legislature into a field covered by the Federal Act. In any event, the Federal Act does not, in my opinion, evince an intention to ‘cover the field’ of entry into any premises where work is done by employees or by employees who are party to AWAs. 88 The right of entry conferred upon an Employment Advocate with respect to AWAs is limited in its exercise by the compliance purposes set out in s 83BH(1). There is nothing in the State Act which authorises or purports to authorise a right of entry by a State-registered organisation or its authorised representative to ascertain whether the terms of an AWA are being complied with. The powers conferred by the State Act are limited by its scope, subject matter and purpose. No reading down of those powers is necessary to exclude their application to discussions about or investigations into questions of compliance with AWAs. 89 Importantly, the right of entry under s 49H of the State Act does not carry with it a right, on the part of relevant employees, to engage in discussions with authorised representatives at such times or under such conditions as would give rise to a breach of the obligations of those employees under an AWA. If it did it would conflict directly with s 170VT(1) of the Federal Act. The right of any relevant employee, who is a party to an AWA, to participate in discussions with an authorised representative is necessarily constrained by the obligations imposed by the AWA as to continuity of work. Such an employee could participate in discussions if he or she so wished during a meal break or such other times as would be consistent with the obligations imposed by the AWA. To construe s 49H of the State Act as incidentally conferring upon relevant employees a right to stop work in breach of the provisions of an AWA would give rise to inconsistency between State and Commonwealth law and the section would be invalid to that extent. No such construction is required. But if it is open, then the section must be read down consistently with s 109 of the Constitution so that it does not operate in breach of an AWA. That is subject to the saving, under s 170VR(2) of State laws relating to occupational health and safety, workers compensation, apprenticeship and other matters prescribed by the regulations. 90 The right of entry conferred by s 49H is unaffected by the terms of AWAs which regulate relations between employer and employee. There is no right conferred on authorised representatives to require employees to engage in discussions and those employees who wish to do so must do so consistently with their AWA obligations. Discussions entered into with authorised representatives who have entered premises under s 49H of the State Act, may relate to a variety of matters relevant to the functions of State-registered organisations. These may include membership of those organisations and the availability of the State law of possible alternatives to AWAs. They may also extend to the observance of State laws affecting occupational health and safety on site. 91 The right of entry under s 49I of the State Act to investigate breaches of State laws, awards and agreements is again conferred on the authorised representatives of State-registered organisations. It operates upon different repositories and with respect to different subject matter than that covered by Div 2 of Pt IVA and Pt IX of the Federal Act. 92 For the preceding reasons, in my opinion, there is no direct or indirect inconsistency between the relevant provisions of the Industrial Relations Act 1979 (WA) and the Workplace Relations Act 1996 (Cth). The Operation of Section 170VR 93 Section 170VR provides that an AWA prevails over ‘terms and conditions of employment specified in a State law, to the extent of any inconsistency’. 94 It was submitted by the applicants that the rights of entry conferred by Div 2G of Pt II of the State Act are ‘terms and conditions’ to which the section applies. The short answer to the applicants’ submission is that even if their premise be right and the rights of entry fall within the scope of ‘terms and conditions’ contemplated by s 170VR, there is no relevant inconsistency, essentially for the reasons I have already stated. State ‘right of entry’ provisions do not impinge upon the operation of the AWAs. They do not empower the authorised representatives of State-registered organisations to require employees to stop and to speak to them. Nor do they authorise employees to stop work in breach of the terms of their AWAs for that purpose. 95 It was accepted by the applicants that the BGC and Killarnee AWAs are silent on the question of rights of entry. Nevertheless, it was said, their terms constitute a comprehensive set of employment conditions consistent with an intention that the AWAs in each case and the relevant provisions of the Federal Act operate to the exclusion of any other conditions of employment specified in a State law. 96 I do not accept that the rights of entry conferred by State law upon the authorised representatives of State-registered organisations can, without fracturing language, be described as terms and conditions of employment. As I have said, they do not and cannot impinge upon the performance of obligations under the AWAs. They relate to the rights of registered organisations and their authorised representatives, vis a vis, employers. In so saying I acknowledge, with respect, the provisional views to the contrary expressed by Carr J in Woodside Energy Ltd v McDonald (2003) 119 IR 457. His Honour there referred to the breadth of the concept of ‘terms and conditions of employment’ reflected in Australian Tramway Employees Association v Prahran and Malvern Tramway Trust [1913] HCA 53 ; (1913) 17 CLR 680 at 693; R v Findlay; Ex parte Commonwealth Steamship Owners’ Association [1953] HCA 81 ; (1953) 90 CLR 621 at 630 and R v Booth; Ex parte Administrative and Clerical Officers’ Association [1978] HCA 14 ; (1978) 141 CLR 257 at 263 . There is, in any event, no inconsistency either direct or indirect between the AWAs and the right of entry provisions which would attract the application of s 170VR. They operate with respect to different subject matters. Conclusion 97 For the preceding reasons the application will be dismissed. I will give liberty to the parties to make written submissions within the next 14 days on the question of costs. I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 29 July 2004 Counsel for the First Applicant: Mr MP McDonald Solicitor for the First Applicant: Hotchkin Hanly Counsel for the Second Applicant: Solicitor for the Second Applicant: Counsel for the Third Applicant: Solicitor for the Third Applicant: Mr DC Heldsinger David Heldsinger Mr THF Caspersz Blake Dawson Waldron Counsel for the Respondent: Mr H Borenstein SC and Mr TJ Dixon Solicitor for the Respondent: Counsel for the Attorney-General for Western Australia Intervening: Solicitor for the Attorney-General for Western Australia Intervening: Counsel for the Minister for Employment and Workplace Relations Intervening: Solicitor for the Minister for Employment and Workplace Relations Intervening: Timothy Kucera Mr RJ Andretich State Solicitor for Western Australia Mr RL Hooker Australian Government Solicitor Date of Hearing: 5 and 6 July 2004 Date of Judgment: 29 July 2004