Australia Post v Russell & Anor [2002] ICQ 36 (2002) 170 QGIG 96

96 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 May, 2002 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 248 – application for a prerogative order in the nature of prohibition Australia Post AND Ivan Desmond Russell and Raquel Russell (No. C68 of 2001) PRESIDENT HALL 20 May 2002 DECISION On 16 October 2001 Australia Post filed an application under s. 248 of the Industrial Relations Act 1999 by which it sought an order in the nature of prohibition, restraining Commissioner Asbury from hearing further proceedings on an application under s. 276 of the Act, brought by Ivan Desmond Russell and Raquel Russell against Australia Post. The factual background appears to commence in or about May 1993, when Australia Post invited tenders for the performance of the Nerang/Gavin Street Mail Delivery Service (MSI 1081). On or about 1 April 1993 a Ms Pamela Panitz entered into a contract with Australia Post for the performance of the delivery service. In or about September 1995 the contract for the performance of delivery service with Australia Post was assigned to Ivan Desmond Russell. (There appears to have been assignees between Ms Panitz and Mr Russell.) In or about June of 1997 the contract was assigned from Ivan Desmond Russell to his wife, Raquel Russell, and himself. In or about February of 2000 Australia Post gave written notice of termination of the contract to the Russell’s. The termination was to be effective from 31 May 2000. The contract did terminate on 31 May 2000. On 3 July 2000 Mr and Mrs Russell filed an application in the Queensland Industrial Relations Commission under s. 276 of the Industrial Relations Act 1999 to amend or void the contract. The application came into the hands of Commissioner Asbury. There was a preliminary hearing on or about 12 September 2001 to determine whether the Commission had jurisdiction to deal with the application. The issue of jurisdiction was not determined. Australia Post sought to persuade Commission Asbury to state a case for the determination of the Court. On or about 28 September 2001 there was a further preliminary hearing at which Commissioner Asbury indicated that she was not prepared to state a case to the Court. It was that interlocutory decision of Commissioner Asbury which sparked the application under s. 248 of the Act. Australia Post also sought a stay of the proceedings in the Commission. The application for a stay was not troublesome. On 22 October 2001, by consent of the parties, the Court ordered that the proceedings in case number B958 of 2000 before the Industrial Relations Commission be stayed, pending the outcome of the application under s. 248. It is useful to give a (general) description of the grounds relied upon by Australia Post is support of its application pursuant to s. 248. The first ground focuses on s. 89 of the Australian Postal Corporation Act 1989 (C’wth). Section 276 of the Industrial Relations Act 1999, of course, empowers the Commission to amend or declare void (wholly or partly) each of two classes of contract, viz a contract of service that is not covered by an industrial instrument and a contract for services. Both limbs of s. 276 are relied upon by Mr and Mrs Russell. Mr and Mrs Russell seek a finding that the contract which existed between themselves and Australia Post was a contract of service and, in the alternative, a finding that the contract was a contract for services. Australia Post’s submission is that the contract is not a contract of service, but that if the contract with Mr and Mrs Russell is a contract of service any application to the contract by s. 276 will be inconsistent with s. 89 of the Australian Postal Corporation Act 1989 and in consequence, by s. 109 of the Australian Constitution, s. 276 will be inoperative to the extent of that inconsistency. It is also contended by Australia Post that if its submission that its contract with Mr and Mrs Russell is a contract for services be accepted, any application to it of s. 276 remains inconsistent with s. 89 of the Australian Postal Corporation Act 1989 (C’wth) so that in consequence of the operation of s. 109 of the Constitution s. 276 is inoperative to the extent of that inconsistency. The second ground relied upon in support of the application under s. 248 is that the Commonwealth Parliament has given to Australia Post the power to decide the terms and conditions under which it operates its service to the exclusion of State legislation to the contrary. Reliance is placed upon the argument developed by Fullagar J in Williams v Hursey (1959) 103 CLR 30 at 68 that where the Commonwealth creates a corporation and defines its powers it must be beyond the power of any state to alter or to qualify those powers. In the event, this ground was not fully developed. Australia Post made it clear that it reserved the right to fully develop the argument in another place. The third ground agitated in support of the application under s. 248 is that to the extent that s. 276 would otherwise operate to permit the Queensland Industrial Relations Commission to vary or void the contract between Australia Post and Mr and Mrs Russell, it is directly or indirectly, inconsistent with ss. 127A, 127B and 127C of the Workplace Relations Act 1996 (C’wth), and to the extent of the inconsistency rendered inoperative by s. 109 of the Constitution. As required by s. 78B of the Judiciary Act 1901 (C’wth) notice of the matter was given to the Attorney-Generals of the Commonwealth and each of the States. Each Attorney General replied. Each Attorney General indicated that intervention would not be sought. Copies of the correspondence were supplied to the Court. On the basis of the correspondence I am satisfied that s. 78B is complied with. It was an outcome of the exchange of written submissions that it was conceded by the Russell’s that any exercise of jurisdiction by the Queensland Industrial Relations Commission under s. 276 based on a finding that the contract between the Russell’s and Australia Post was a contract of service would be inoperative, because of the inconsistency between s. 276 in its application to a contract of service and s. 89 of the Australian Postal Corporation Act 1989 (C’wth). In my view the concession was properly made. Section 89 of the Australian Postal Corporation Act 1989 (C’wth) is in the following terms: “(1) Australia Post may engage such employees as are necessary for the performance of its functions. (2) The Terms and conditions of employment shall be determined by Australia Post.”. For fullness I note that s. 90 provides: “90. Australia Post shall endeavour to achieve and maintain high standards as an employer in relation to terms and conditions of employment, occupational health, industrial safety, industrial democracy, non discriminatory employment practices and other matters.”. There is no material difference between ss. 89 and 90 of the Australian Postal Corporation Act 1989 (C’wth) and ss. 32 and 33 of the Broadcasting Legislation Amendment Act 1988 (C’wth). In Barry v Australian Broadcasting Corporation [2002] NSW IR COMM 14 (15 February 2002) the Full Bench of the Industrial Relations Commission of NSW in Court session had cause to consider whether ss. 32 and 33 of the Australian Broadcasting Corporation Act 1983 (C’wth) denied jurisdiction to the Industrial Relations Commission of NSW to deal with an application by a former employee of the Australian Broadcasting Corporation under s. 106 of the Industrial Relations Act 1996 (NSW), a section which is in all material respects comparable to s. 276 of the Industrial Relations Act 1999. It was held that the duty of the Australian Broadcasting Corporation to determine the terms and conditions of the former worker’s employment pursuant to s. 32 excluded any power otherwise within s. 106 to adjust or determine the terms and conditions upon which the worker had been employed. Whilst it is true that this Court is not bound by decisions of the NSW Industrial Commission in Court session, given the strength of the bench (Wright J (President), Walton J (Vice President) and Hungerford J) and the line of authority from which it arose, viz Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399, Dao v Australian Postal Commission (1987) 162 CLR 217 and -- 1 of 6 -- 31 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 97 Dawson v Telstra Corporation Limited (1998) NSW IR COMM 236, the decision is highly persuasive and as a matter of comity it seems to me that this Court should follow it. It is convenient to postpone consideration of the second limb of Australia Post’s first ground, viz that it is a consequence of the Australia Postal Corporation Act 1989 and s. 109 that s. 276 is inoperative in its application to contracts for services entered into by Australia Post, until after Australia Post’s third ground has been dealt with. By s. 109 of the Australian Constitution: “When a law of 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 purpose of s. 109 of the Constitution is to guarantee the supremacy of Commonwealth law. Some such provision would presumably have been imported as a rule of last resort even in the absence of expressed provision, compare Victoria v Commonwealth (1937) 58 CLR 618 at 634 per Evatt J. Early on, a law of the State and a law of the Commonwealth were not treated as inconsistent if the laws were capable of simultaneous obedience. After the decision in Clyde Engineering Co Limited v Cowburn (1926) 37 CLR 466, it continues to be appropriate to apply the description “direct inconsistency” to the category of case in which it is impossible to obey both the Commonwealth law and the State Law, Ansett Transport Industries (Operations) Pty Ltd v Wardley (1979-1980) 142 CLR 237 at 259-260 per Mason J and the cases there cited and to cases of direct textual collision, compare Millar v Millar (1978) 141 CLR 269 at 275 per Barwick CJ. But the description “direct inconsistency” is also applied in any case, “When a State law, if valid, would alter, impair or detract from the operation of the law of the Commonwealth Parliament . . . ”, Victoria v Commonwealth (1937) 58 CLR 618 at 630 per Dixon J, Ansett Transport Industries (Operations) Pty Limited v Wardley (1979-1980) 142 CLR 237 at 251 per Stephen J. Additionally, it has come to be accepted, that the description “indirect inconsistency” may be applied where there is an overlap or duplication of State and Federal law in circumstances in which it may be discerned that it was the intention of the Commonwealth parliament to provide the whole of the applicable law on a subject matter within its legislative competence. Sometimes cloaked with the metaphor of “covering the field” this form of inconsistency was explained by Dixon J in ex parte McLean (1930) 43 CLR 472 at 483 as follows: “ . . . 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. When a Federal statute discloses such an intention, it is inconsistent with it for the law of the State to govern the same conduct or matter.”. It is against that background that I go to s. 276 of the Industrial Relations Act 1999 and ss. 127A, 127B and 127C of the Workplace Relations Act 1996 (C’wth). This being a case in which the text of the relevant provisions is critical I set out the terms of s. 276. Section 276 provides: “Power to amend or void contracts 276.(1) On application, the commission may amend or declare void (wholly or partly) a contract if it considers– (a) the contract is– (i) a contract of service that is not covered by an industrial instrument; or (ii) a contract for services; and (b) the contract is an unfair contract. (2) In deciding whether to amend or declare void a contract, or part of a contract, the commission may consider– (a) the relative bargaining power of the parties to the contract and, if applicable, anyone acting for the parties; or (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; or (c) an industrial instrument or this Act; or (d) anything else the commission considers relevant. (3) An application may be made by– (a) a party to the contract; or (b) an inspector, for the party required under the contract to provide services; or (c) an organisation of employees or employers of which a party is, or has applied to become, a member, if it is acting with the party’s written consent. (4) The commission may consider a contract to be an unfair contract if it considers the contract – (a) was an unfair contract when it was entered into; or (b) became an unfair contract after it was entered into because of the conduct of the parties, or a variation to the contract or for any other reason it considers sufficient. -- 2 of 6 -- 98 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 May, 2002 (5) The commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void. (6) A person can not make an application under this section if– (a) an application has been made under section 74 for the same matter; or (b) the person– (i) is not a public service officer employed on tenure under the Public Service Act 1996; and (ii) has an annual wage of more than $68 000 or a greater amount stated in, or worked out in a way prescribed under a regulation. (7) In this section– ‘contract’ includes– (a) an arrangement or understanding; and (b) a collateral contract relating to a contract. ‘industrial instrument’ includes an award or agreement made under the Commonwealth Act. ‘unfair contract’ means a contract that– (a) is a harsh, unconscionable or unfair; or (b) is against the public interest; or (c) provides, or has provided, a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument or this Act; or (d) is designed to, or does, avoid the provisions of an industrial instrument. As reproduced the section includes immaterial amendments made since proceedings commenced. In marshalling up the provisions of s. 276 a convenient starting point is subs. (7) which, amongst other things, defines “unfair contract” to mean (not include), a contract that answers the description at (a) to (d). The ground at (b) is of some interest. Granted that the tribunal upon which jurisdiction is conferred, viz Queensland Industrial Relations Commission, is an arbitral tribunal directed to discharge its functions at s. 276 to “further the objects of this Act,” s. 273(2)(a), it seems to follow that the power vested by s. 276 is to be characterised as other than judicial in character, compare Re Dingjan and Others: ex parte Wagner and Another (1994-1995) 183 CLR 323 at 360 to 361 per Gaudron J. Where a finding is made that the contract falls within one or other of the paragraphs of sub s. (7), subs. (2) identifies factors which the Commission may consider in determining whether to amend or declare void the whole or part of the contract. There may in other proceedings be argument about the width of subs (2)(d). As a matter of first impression, and there has not been full argument upon the point, I should have thought that the purpose of paragraph (d) was to make plain that the factors at paragraphs (a) to (c) are not exhaustive, rather than to enlarge the Commission’s powers beyond reining in and adjusting unfair contracts. The other features of note are that– (a) Inconsistently with the point made about subs. (7)(b), the capacity to initiate proceedings (at sub section (3)) is suggestive of judicial power. An industrial organisation may not act on its own behalf, but may act only with the written consent of a party to the contract. The initiation of proceedings by an “inspector” is a characteristic of other civil proceedings under the Act. (b) By subs. (4) conduct of the parties occurring after the contract has been entered into, as well as conduct of the parties at the time of the inception of the contract, may be considered in determining whether the contract is unfair. (c) The power to order the payment of money at subs. (5) seems not to be limited to the return or reimbursement of monies previously paid under the contract. I turn now to ss. 127A, 127B and 127C of the Workplace Relations Act 1996 (C’wth). The sections are presently in the following terms: “127A Unfair contracts with independent contractors: Court’s powers (1) In this section and in section 127B: contract means: (a) a contract for services that: (i) is binding on an independent contractor; and (ii) relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract; and (b) any condition or collateral arrangement relating to such a contract. (2) Application may be made to the Court to review a contract on either or both of the following grounds: (a) the contract is unfair; -- 3 of 6 -- 31 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 99 (b) the contract is harsh. (3) An application under subsection (2) may be made only by: (a) a party to the contract; or (b) an organisation of employees of which the independent contractor is (or has applied to become) a member, if it is acting with the written consent of the independent contractor; or (c) an organisation or association of employers of which the person contracting for the services is (or has applied to become) a member, if it is acting with the written consent of the person. (4) In reviewing the contract, the Court may have regard to: (a) the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and (d) whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and (e) any other matter that the Court thinks relevant. (5) If the Court forms the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract, it must record its opinion, starting whether the opinion relates to the whole or specified part of the contract. (6) The Court may form the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract even if the ground was not canvassed in the application. (7) The Court must exercise its powers under this section in a way that furthers the objects of this Act as far as practicable. 127B Court may make orders about unfair contracts (1) If the Court records an opinion under section 127A in relation to a contract, it may make one or more of the following orders in relation to the opinion: (a) an order setting aside the whole or part of the contract, as the case may be; (b) an order varying the contract. (2) An order may only be made for the purpose of placing the parties to the contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies. (3) While the application is pending, the court may make an interim order if it thinks it is desirable to do so to preserve the position of a party to the contract. (4) An order takes effect from the date of the order or a later date specified in the order. (5) A party to the contract may apply to the Court to enforce an order by injunction or otherwise as the Court thinks fit. (6) This section does not limit any other rights of a party to the contract. 127 C Application of sections 127A and 127B (1) Sections 127A and 127B apply only as follows, namely: (a) in relation to a contract to which a constitutional corporation is a party; (b) in relation to a contract relating to the business of a constitutional corporation; (c) in relation to a contract entered into by a constitutional corporation for the purposes of the business of the corporation; (d) in relation to a contract relating to work in trade or commerce to which paragraph 51(i) of the Constitution applies; (e) in relation to a contract so far as it affects matters that take place in or are otherwise connected with a Territory; (f) in relation to a contract to which the Commonwealth or a Commonwealth authority is a party. (2) In this section: constitutional corporation means a corporation to which paragraph 51 (xx) of the Constitution applies. contract has the same meaning as in section 127A.”. In Finch and Ors v Herald and Weekly Times Limited, unreported, 26–3–96, VI 94/5036 North J summarised the legislative history as follows: “Sections 127A and 127B were originally introduced by Act No 109 of 1992 and commenced operation on 23 July 1992. The original form was amended (‘the 1994 amendments’) by the Industrial Relations Reform Act 1993 which commenced operation on 30 March 1994. -- 4 of 6 -- 100 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 May, 2002 There were three relevant changes made by the 1994 amendments: 1. Wherever the word ‘Court’ now appears in the sections set out above, the word ‘Commission’, being the Australian Industrial Relations Commission (‘the Commission’), appeared in the 1992 Act, except in s. 127B(5), which is unchanged. 2. Section 127A(2) (c) was repealed. It provided an additional ground of review, namely, that: ‘(c) the contract is against the public interest’ 3. Section 127A (4) (c) was repealed. It provided for a further matter which the court could take into account in reviewing a contract, namely: ‘(c) whether the contract may have adverse effect on the development of the skills of employees performing work of the relevant kind in the industry, including any system designed to provide a trained labour force (for example, apprenticeship or any arrangement for improving the skills of employees); . . .’ Thus, the effect of the 1994 amendments was to vest in this Court* the jurisdiction previously vested in the Commission, albeit in a modified form.”. [* Note: The Workplace Relations Act 1996 further transferred the jurisdiction to the Federal Court of Australia]. Finch and Ors v Herald and Weekly Times Limited, ibid, was directly concerned with the question whether ss. 127A and 127B were invalid as purporting to invest the Industrial Relations Court of Australia with a jurisdiction which was not part of the judicial power of the Commonwealth, a question which North J answered in the negative. However, His Honour’s decision is instructive as to the nature and scope of the powers vested by ss. 127A and 127B. The power is no longer an arbitral power to be exercised in pursuance of the objects of the Act. It is now a power primarily concerned with the defined issues of harshness and unfairness which, of course, focus on the interests and conduct of the parties to the contract. Section 127A(7) is to be read, not as a grant of power, but as a limitation upon the power to review contracts on the grounds of unfairness and harshness, requiring the Federal Court, when reviewing contracts on the grounds of unfairness or harshness, to act so as to further the objects of the Act. (The objects of the Workplace Relations Act 1996 are not the objects of the legislation reviewed by North J.) Like s. 276 of the Industrial Relations Act 1999, s. 127A allows a registered industrial organisation to bring an application on behalf of a member only with the written consent of the member. Unlike s. 276, s. 127A is confined to contracts for services. Unlike s. 276, s. 127A (6) confers an expressed power to act on a ground not canvassed in the application. (There is no suggestion that the Federal Court is authorised to act of its own motion or in denial of the requirements of natural justice. There is no reason to believe that the power vested by s. 127A (6) is any wider than the power vested in the Queensland Industrial Relations Commission by s. 331(a) of the Industrial Relations Act 1999.) Similarly, in tying together matters to which the Court should have regard in reviewing a contract for services with matters to which the Queensland Industrial Relations Commissions must have regard to in determining whether a contract is unfair and the matters which the Queensland Industrial Relations Commission may take into account in determining whether to grant a remedy for a contract found to be unfair, ss. 127A, 127B and 127C do not take on a character entirely different to s. 276 of the Queensland Act. Section 276 of the Queensland Act is wider than s. 127A in that sub s. (4)(b) expressly permits the Queensland Industrial Relations Commission, in considering whether a contract is an unfair contract, to have regard to the conduct of the parties or a variation to the contract after it was made. Section 127(A) confers no such express power and in Finch and Ors v The Herald and Weekly Times Limited, op.cit., North J was of the view that regard might not be had to conduct engaged in after the contract was made. Although ss. 127A and 127B are silent upon the point it follows from the exercise of judicial power by a Court that the doctrine of res judicata will apply to prohibit successive applications. The doctrine of res judicata has no application to arbitral decisions of the Queensland Industrial Relations Commission. However, there seems no reason to doubt that the power of s. 331(b)(ii) of the Industrial Relations Act 1999 might be invoked to remedy any abuse arising from the making of successive applications. It is the effect of s. 127C to limit the reach of ss. 127A and 127B. Section 276 applies to all persons natural and artificial. (It is common ground that the Australian Postal Corporation falls within s. 127C.) It follows inexorably from the analysis above that there is no direct inconsistency between s. 276 of the Industrial Relations Act 1999 and ss. 127A, 127B and 127C of the Workplace Relations Act 1996. There is no textual collision. Section 276 does not take away any right or privilege conferred by ss. 127A, 127B and 127C. Since neither s. 276 nor s. 127A issues a command, simultaneous obedience is not impossible. It may well be, as the Australian Postal Corporation contends, that in a particular case orders may be made under the State provision and under the Commonwealth provision which are incapable of simultaneous obedience, or that orders may be made under the State provision which, if given effect, would modify or detract from orders previously made in litigation under the Commonwealth provisions. But all of that is in the future. The relief sought is prerogative relief in the nature of prohibition. The challenge is made at the threshold. An applicant for such relief must show that no order could be made in the proceedings before Commissioner Asbury which would be within jurisdiction, compare Majik Markets Pty Ltd v Break and Service Centre Drummoyne Pty Ltd (1991) 28 NSW LR 443 at 447 per Kirby P. That, in my view, the applicant has failed to do. The more difficult issue was whether the Australian Postal Corporation has shown indirect inconsistency. The obstacle to success is s. 127B(6): “This section does not limit any other rights of a party to the contract”. It is I think settled that where there is a direct inconsistency, an assertion by the Commonwealth law that it was not intended to be inconsistent with the State law, will be meaningless and ineffective. In University of Wollongong v Metwally (1984) 158 CLR 447 at 455 to 456 Gibbs CJ said: “The Commonwealth Parliament cannot enact a law which would affect the operation of s. 109, either by declaring that a State law, although not inconsistent with any Commonwealth law, shall be invalid, or that a State law which is inconsistent with a Commonwealth law shall be valid. If there were a direct conflict between a Commonwealth law and a State law, as, for example, where one law forbids what the other commands, or one takes away a right which the other confers, an assertion in the Commonwealth law that it was not intended to be inconsistent with the State law would be meaningless and ineffective.”. However, the position is otherwise where the allegation is one of indirect inconsistency. It seems to me to be settled that if the intention of the Federal Legislature may be inferred it may also be expressly stated, compare Wenn v Attorney General (Victoria) (1948) 77 CLR 84 at 110 per Latham CJ. It seems to be settled also that the Commonwealth Parliament may proceed directly to save State laws (revealing indirectly the field it intended to cover by the Commonwealth Law) instead of by indicating the field it intended to cover (thus indirectly excluding state laws and saving its own), see the Queen v -- 5 of 6 -- 31 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 101 Clarkson ex parte General Motors Holden’s Pty Ltd (1976) 134 CLR 56 at 80 per Murphy J, the Queen v Credit Tribunal: ex parte General Motors Acceptance Corporation, Australia (1977) 137 CLR 545 at 564 per Mason J with whom Barwick CJ Gibbs and Stephen JJ agreed, Palmdale–AGCI Limited v Workers Compensation Commission (NSW) 1977 140 CLR 236 at 243 per Mason J with whom Barwick CJ, Jacobs and Aickin JJ agreed, and University of Wollongong v Metwally, op. cit., at 456 where Gibbs CJ said: “However, when there is no direct inconsistency between the two laws, the question is whether the State law is inconsistent with the Commonwealth law because the latter intends to cover the subject-matter with which the State law deals, and an indication in the Commonwealth law of the intention of the Parliament in that regard will be material and in most cases decisive . . . ”. I have difficulty in accepting that s. 127A(6) does no more than save the rights of a party to a contract which arises under the general or judge made law. To begin with, there is much to be said to the view that a valid Commonwealth statute prevails over the general or judge made law by virtue of the sovereignty of the Australian Parliament rather than by the impact of s. 109 of the Constitution, compare Felton v Mulligan (1971) 124 CLR 367 at 370 per Walsh J and Majik Markets Pty Ltd v Brake and Service Centre Drummoyne and Others op. cit., at 467 per Handley JA. Second, the Second Reading speech of the Minister responsible for the introduction of the Bill which introduced ss. 127A, 127B and 127C viz Senator Cook, expressly recognised the existence of State legislation upon the matter of unfair contracts and is expressed in language which in no way suggests that such legislation was intended to cease to be operative. The Honourable Minister said: “Finally, the unfair contracts review procedure is a more limited procedure than that now available under some State laws. Such a procedure has existed in NSW for many years, and has recently been carried over by the Greiner Government into the NSW Industrial Relations Act 1991. The procedure proposed in this Bill will only operate in respect of a limited class of unfair contract.”. (Reference to the Second Reading Speech is of course permissible to resolve an ambiguity, Acts Interpretation Act 1901 (Cwth), s. 15AB(1) and (2)(f). No other presently relevant Second Reading Speech and no relevant Explanatory Memorandum is helpful.) Third, although s. 276 does not impose a duty and command performance of the duty, the section may legitimately be characterised as conferring a “right” within the meaning of s. 127A(6). The effect of legislation which in terms is no more than a conferral of jurisdiction to grant particular relief, (here the avoidance or variation of contracts and the making of orders for the payment of money), was considered in The King v Commonwealth Court of Conciliation Arbitration: ex parte Barrett (1945) 70 CLR 141. At 155 Latham CJ said: “ . . . A right is created by the provision that a court may make an order, and such a provision also gives jurisdiction to the court to make the order. The fact that the court may not be bound to make an order, but may exercise a discretion, does not alter the effect of such a provision . . . Such a provision gives a new jurisdiction to the court and . . . if the court exercises its discretion in favour of the applicant, a new right to the applicant . . .”. Similarly at 165 to 166 Dixon J said: “. . . it must be taken to perform a double function, namely to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them. It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority . . . ”. The applicant for relief places great reliance upon s. 152 (1A) of the Workplace Relations Act 1996 which provides: “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 award.”. It is contended that the statute must be read as a whole and that s. 152(1A) demonstrates the legislative device which the Commonwealth was prepared to utilise to demonstrate that it did not intend to exclude a State legislative remedy. With respect, it seems to me that not only must the statute be read as a whole but every section must be read as a whole. The very explicit drafting of s. 152(1A) arose from the necessity to exempt (certain) State unfair dismissal laws from the broad terms of s. 152(1) which provides: “Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.”. In my view there is no indirect inconsistency, between s. 276 of the Industrial Relations Act 1999 and ss. 127A, 127B and 127C of the Workplace Relations Act 1996. This being a case in which a prerogative order in the nature of prohibition has been sought at the threshold it is unnecessary to determine whether ss. 127A, 127B and 127C disclose an intention that once the powers which they vest are invoked the powers become exclusive, compare The Queen v Winneke: ex parte Gallager (1982) 152 CLR 211 at 217 per Gibbs CJ and at 221 per Mason J, and Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd and others, op. cit., at 469 per Handley JA. It remains to revisit the question whether s. 276 is rendered inoperative in its application to contracts for services entered into by the Australian Postal Corporation by reason of inconsistency with ss. 89 and 90 of the Australian Postal Corporation Act 1989. To my mind it seems tolerably plain that if the power at s. 276 was exercised so to vary a contract for services that it become a contract of service, the reasoning in Barry v Australia Broadcasting Corporation [2002] NSW IR COMM 14 would attach. Only the Australian Postal Corporation may fix the terms of such a contract. However, that is certainly not the only order which may be made pursuant to s. 276. (If, indeed, such an order may be made.) There is no basis for prerogative relief in the nature of prohibition at the threshold. The application is dismissed. I vacate the order staying the proceedings before Commissioner Asbury. Dated 20 May 2002. D.R. HALL, President. Released: 20 May 2002 Appearances:– Mr D.S. Jackson QC and Mr K.F. Watson instructed by Clarke and Kann Solicitors for the applicant. Mr J.S. Shepley instructed by Primrose Couper Cronin Rudkin Solicitors for the respondent. -- 6 of 6 --