Industrial Relations Commission of New South Wales in Court Session CITATION: Peter Jones v Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2005] NSWIRComm 144 APPLICANT / RESPONDENT ON MOTION Peter Jones PARTIES: RESPONDENT / APPLICANT ON MOTION Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia FILE NUMBER(S): IRC 3221 of 2004 CORAM: Boland J CATCHWORDS: Unfair Contract - Interlocutory proceedings - Applicant employed as an industrial officer by a federally registered organisation of employees - Whether constitutional inconsistency between federal laws governing federally registered organisation and s 106 of Industrial Relations Act 1996 (NSW) - Status of organisation's Rules as a law of the Commonwealth - Whether cover the field test applicable - Whether direct inconsistency - Held no inconsistency Annual Holidays Act 1944 Australian Broadcasting Corporation Act 1983 (Cth) Broadcasting and Television Act 1942 (Cth) Defence Housing Authority Act 1987 (Cth) Industrial Arbitration Act 1940 Industrial Conciliation and Arbitration Act 1972 (SA) LEGISLATION CITED: Industrial Relations Act 1996 Judiciary Act 1903 (Cth) Long Service Leave Act 1955 Residential Tenancies Act 1987 Service and Execution of Process Act 1901 (Cth) Supreme Court Act 1970 Workplace Relations Act 1996 (Cth) Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 Barry v Australian Broadcasting Corporation (2002) 112 IR 33 Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648 Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 Commonwealth of Australia v Cigamatic Pty Ltd (1962) 108 CLR 372 Commonwealth v Bogle Borehan & Clark (1953) 89 CLR 229 Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392 Dao v Australian Postal Commission (1987) 162 CLR 317 Ex Parte McLean (1930) 43 CLR 472 CASES CITED: Flaherty v Girgis (1987) 162 CLR 574 Kanan v Australian Postal and Telecommunications Union (1990) 34 IR 446 National Union of Workers v Davids Distribution Pty Ltd (1999) 91 FCR 513 P v P (1994) 181 CLR 583 Residential Tenancies Tribunal, Ex parte Defence Housing Authority, Re (1997) 190 CLR 410 Rounsevell v Mitchell (1968) 11 FLR 414 T A Robinson and Sons Proprietary Limited v Haylor (1957) 97 CLR 177 Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124 The State of Victoria & Ors v The Commonwealth of Australia and Ors (1937) 58 CLR 618 Williams v Hursey (1959) 103 CLR 30 HEARING DATES: 04/01/2005 DATE OF JUDGMENT: 05/03/2005 APPLICANT / RESPONDENT ON MOTION Mr A Moses of counsel Solicitor: Ms M Archer Haywards Solicitors RESPONDENT / APPLICANT ON MOTION LEGAL REPRESENTATIVES: Mr R Reitano of counsel Solicitor: Mr P Pasfield Slater & Gordon INTERVENOR Ms R A Pepper of counsel Solicitor: I V Knight Attorney General of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Tuesday 3 May 2005 Matter No IRC 3221 of 2004 PETER JONES v COMMUNICATIONS, ELECTRICAL, ELECTRONICS, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT [2005] NSWIRComm 144 1 Peter Jones is the Vice President of the New South Wales Postal and Telecommunications Branch of the Communications Division of the Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU"), an organisation of employees registered under the Workplace Relations Act 1996 (Cth) ("WR Act"). Mr Jones was also employed by the CEPU under a common law contract of employment as an Industrial Officer but that employment was terminated by the Branch Secretary, Mr Jim Metcher, on 6 June 2003 for reasons relating to action taken by Mr Jones designed to prevent Mr Metcher being re-elected to the position of Branch Secretary in 2003. 2 Mr Jones subsequently filed for relief under s 106 of the Industrial Relations Act 1996 ("IR Act") in relation to the termination of his employment contract with the CEPU alleging the contract was unfair on a number of grounds and sought orders including an order varying the contract so as to include the following terms: (a) upon termination of employment for any reason the Respondent shall give to the Applicant one years notice of termination or payment in lieu of such notice of termination. (b) for the purpose of (a) above payment in lieu of notice shall be calculated by reference to the total value of all benefits that the Applicant would have received during the notice period. Mr Jones also sought compensation in connection with the varied or avoided contract. 3 The CEPU now moves this Court for an order that the proceedings issued by Mr Jones be dismissed on the basis that the Court does not have jurisdiction to hear and determine matters raised by the summons for relief. The grounds in support of the motion were: 1 The Respondent is an Organisation registered under the Workplace Relations Act 1996 (Cth) (the "WR Act") and is wholly regulated by that Act and the powers and functions of the Respondent which is an emanation of Commonwealth law cannot be defined, limited or otherwise controlled by State legislation such as Section 106 of the IR Act. 2 Any orders that this Honourable Commission might ultimately make in these proceedings would be inconsistent with the WR Act and the rules of the respondent which are given force by reason of the WR Act and therefore would be invalid by reason of the operation of section 109 of the Constitution. 3 Section 414 of the WR Act gives the Federal Court of Australia exclusive jurisdiction in relation to any act or omission for which the respondent is liable to be sued. 4 In accordance with the requirements of s 78B of the Judiciary Act 1903 (Cth), notices of the proceedings were given to the Attorneys-General of the Commonwealth, the States and the Territories as the question involved a matter arising under the Commonwealth Constitution or involving its interpretation. However, apart from the parties, only the Attorney-General for the State of New South Wales sought to make any submissions in the proceedings. Competing laws 5 The Court's power to deal with unfair contracts is contained in Pt 9 - Unfair contracts of Ch 2 of the IR Act which, relevantly for present purposes, ss 105 and 106 therein provide: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. (6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss. 6 The provisions of the WR Act relied upon by the CEPU to establish constitutional inconsistency were s 414 and Schedule 1B - Registration and Accountability of Organisations of that Act. It is noted the CEPU is incorporated pursuant to s 27 of Schedule 1B. 7 Section 414 of the WR Act is in the following terms: Exclusive jurisdiction (1) [Jurisdiction re organisations, members] Subject to this Act, the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory. (2) [repealed] (3) [Jurisdiction under s 422] The jurisdiction of the Court under section 422 is exclusive of the jurisdiction of any court of a State or Territory to hear and determine an appeal from a judgment from which an appeal may be brought to the Court under that section. 8 The objects of Schedule 1B of the WR Act are set out in s 5 of the Schedule: 5 Objects of Schedule The principal objects of this Schedule are to: (a) ensure that employee and employer organisations registered under this Schedule are representative of and accountable to their members, and are able to operate effectively; and (b) encourage members to participate in the affairs of organisations to which they belong; and (c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and (d) provide for the democratic functioning and control of organisations. 9 The provisions of the Schedule relied upon by the CEPU were as follows: 27 Incorporation An organisation: (a) is a body corporate; and (b) has perpetual succession; and (c) has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with, any real or personal property; and (d) must have a common seal; and (e) may sue or be sued in its registered name. … 141 Rules of organisations (1) The rules of an organisation: (a) must specify the purposes for which the organisation is formed and the conditions of eligibility for membership; and (b) must provide for: (i) the powers and duties of the committees of the organisation and its branches, and the powers and duties of holders of offices in the organisation and its branches; and (ii) the manner of summoning meetings of members of the organisation and its branches, and meetings of the committees of the organisation and its branches; and (iii) the removal of holders of offices in the organisation and its branches; and (iv) the control of committees of the organisation and its branches respectively by the members of the organisation and branches; and (v) the manner in which documents may be executed by or on behalf of the organisation; and (vi) the manner of notifying the Commission of industrial disputes; and (vii) the times when, and the terms on which, persons become or cease (otherwise than by resignation) to be members; and (viii) the resignation of members under section 174; and (ix) the manner in which the property of the organisation is to be controlled and its funds invested; and (x) the yearly or other more frequent audit of the accounts; and (xi) the conditions under which funds may be spent; and (xii) the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches; and (xiii) the manner in which its rules may be altered; and (c) may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of: (i) misappropriation of the funds of the organisation; or (ii) a substantial breach of the rules of the organisation; or (iii) gross misbehaviour or gross neglect of duty; or has ceased, under the rules of the organisation, to be eligible to hold the office; and (d) must require the organisation to inform applicants for membership, in writing, of: (i) the financial obligations arising from membership; and (ii) the circumstances, and the manner, in which a member may resign from the organisation. Note 1: Section 166 deals with entitlement to membership of organisations. Note 2: See also section 179 (liability for arrears). (2) The rules of an organisation of employees may include provision for the eligibility for membership of the organisation of independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the organisation. (3) The rules of an organisation may also provide for any other matter. (4) In this section: committee , in relation to an organisation or branch of an organisation, means a collective body of the organisation or branch that has powers of the kind mentioned in paragraph (1)(b) of the definition of office in section 9. 142 General requirements for rules (1) The rules of an organisation: (a) must not be contrary to, or fail to make a provision required by this Schedule, the Workplace Relations Act, an award, a certified agreement or an old IR agreement, or otherwise be contrary to law; and (b) must not be such as to prevent or hinder members of the organisation from: (i) observing the law or the provisions of an award, an order of the Commission, a certified agreement or an old IR agreement; or (ii) entering into written agreements under an award, an order of the Commission, a certified agreement or an old IR agreement; and (c) must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Schedule and the Workplace Relations Act and the purposes of the registration of organisations under this Schedule, are oppressive, unreasonable or unjust; and (d) must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (2) For the purposes of paragraph (1)(d), rules of an organisation are taken not to discriminate on the basis of age if the rules do not prevent the organisation setting its membership dues by reference to rates of pay even where those rates are set by reference to a person's age. 143 Rules to provide for elections for offices (1) The rules of an organisation: (a) must provide for the election of the holder of each office in the organisation by: (i) a direct voting system; or (ii) a collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system; and (b) must provide for the conduct of every such election (including the acceptance or rejection of nominations) by a returning officer who is not the holder of any office in, or an employee of, the organisation or a branch, section or division of the organisation; and (c) must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than 7 days after the person is notified; and (d) must make provision for: (i) the manner in which persons may become candidates for election; and (ii) the duties of returning officers; and (iii) the declaration of the result of an election; and (e) must provide that, where a ballot is required, it must be a secret ballot, and must make provision for: (i) in relation to a direct voting system ballot (including a direct voting system ballot that is a stage of an election under a collegiate electoral system)—the day on which the roll of voters for the ballot is to be closed; and (ii) absent voting; and (iii) the conduct of the ballot; and (iv) the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and (f) must be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election. (2) Without limiting section 142, the rules of an organisation relating to elections may provide for compulsory voting. (3) The day provided for in the rules of an organisation as the day on which the roll of voters is to be closed (see paragraph (1)(e)) must be a day no earlier than 30 days, and no later than 7 days, before the day on which nominations for the election open. (4) A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation. (5) The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates. (6) The rules providing for the day on which the roll of voters for a ballot is to be closed are not to be taken to prevent the correction of errors in the roll after that day. … 163 Rules contravening section 142 Application for order declaring rules contravene section 142 (1) A member, or an applicant for membership, of an organisation may apply to the Federal Court for an order under this section in relation to the organisation. (2) If the application is made by a member, the order under this section may declare that the whole or a part of a rule of an organisation contravenes section 142 or that the rules of an organisation contravene section 142 in a particular respect. (3) If the application is made by an applicant for membership, the order under this section may declare that the whole or a part of a rule of an organisation contravenes paragraph 142(1)(c) or (d) or that the rules of an organisation contravene paragraph 142(1)(c) or (d) in a particular respect. (4) An organisation in relation to which an application is made under this section must be given an opportunity of being heard by the Court. (5) The Court may, without limiting any other power of the Court to adjourn proceedings, adjourn proceedings in relation to an application under this section for such period and on such terms and conditions as it considers appropriate for the purpose of giving the organisation an opportunity to alter its rules. Effect of order (6) Where an order under this section declares that the whole or a part of a rule contravenes section 142, the rule or that part of the rule, as the case may be, is taken to be void from the date of the order. Appropriate authority may alter organisation's rules (7) Where: (a) the Court makes an order declaring as mentioned in subsection (2) or (3) in relation to the rules of an organisation; and (b) at the end of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the appropriate authority, brings them into conformity with section 142 in relation to the matters that gave rise to the order; the appropriate authority must, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority's opinion, bring the rules into conformity with that section in relation to those matters. Note: For the meaning of appropriate authority see subsection (12). (8) The appropriate authority may, on the application of the organisation made within the period of 3 months referred to in subsection (7) or within any extension of the period, extend, or further extend, the period. (9) Alterations determined under subsection (7) take effect on the date of the instrument. Court may make interim orders (10) At any time after a proceeding under this section has been instituted, the Court may make any interim orders that it considers appropriate in relation to a matter relevant to the proceeding. (11) An order under subsection (10) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned. Definitions (12) In this section: appropriate authority means: (a) in relation to the eligibility rules of an organisation—a Presidential Member of the Commission; or (b) in relation to the other rules of an organisation—the Industrial Registrar. (13) In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation. 164 Directions for performance of rules Application for order directing performance of rules (1) A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation. Note: For the meaning of order under this section , see subsection (9) (2) Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard. (3) The Court may refuse to deal with an application for an order unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation. Court may make interim orders (4) At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application. (5) An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned. Definition (9) In this section: order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules. 164A Directions to rectify breach of rule of organisation Application for order (1) A member of an organisation may apply to the Federal Court for an order under subsection 4 in relation to the organisation. (2) Before making the order, the Court must give any person against whom the order is sought an opportunity of being heard . Conditions for making order (3) The Court may make an order under subsection (4) in relation to an organisation if the Court is satisfied that: (a) a person was under an obligation to perform or observe a rule or rules of the organisation; and (b) the person breached the rule or rules; and (c) the person acted unreasonably in so breaching the rule or rules. Nature of order (4) Subject to section 164B, the Court may make an order directing one or more persons (who may be, or include, the person who breached the rule or rules) to do specified things that will, in the opinion of the Court, as far as is reasonably practicable, place the organisation in the position in which it would have been if the breach of the rule or rules had not occurred. (5) The Court may make the order whether or not, at the time of making the order, the person is a member or officer of the organisation. 10 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. CEPU's submissions 11 Mr R Reitano of counsel appeared for the CEPU. Mr Reitano described the issue as being whether by reason of the operation of s 109 of the Constitution the existence, terms and operation of the WR Act, together with the Rules of the CEPU, which were made under the WR Act, deny to the Industrial Relations Commission of New South Wales in Court Session jurisdiction to deal with the applicant's summons for relief pursuant to s 106 and/or power to grant any of the relief sought by the applicant in the summons. 12 Counsel submitted that the summons in this matter should be dismissed. What the applicant seeks to do in these proceedings, it was submitted, would have the effect of defining, limiting or otherwise detracting from the operation of a Federal law being the WR Act and, more particularly, the Rules of the CEPU. 13 Mr Reitano referred to s 414(1) of the WR Act, noting it provides that the jurisdiction of the Federal Court of Australia in relation to acts or omissions for which a federally registered organisation is liable to be sued is exclusive of the jurisdiction of any other Federal or State Court. 14 In relation to s 164 of Schedule 1B of the WR Act, Mr Reitano observed that it gives to the Federal Court of Australia power to direct performance or observance of the rules of an organisation. That power, he submitted, extends by reason of s 164A to directing that a breach of the rules of an organisation be corrected. Section 163 of Schedule 1B gives to the Federal Court power to declare that whole or part of a rule contravenes section 142 of Schedule 1B. 15 Counsel for the CEPU submitted it was important to note that the requirements of the rules of an organisation require that the rules define the powers and duties of committees of the organisation and its branches and the powers and duties of holders of office in the organisation and its branches (s 141(1)(b)), the manner in which the property of the organisation is to be controlled and its funds invested (s 141(1)(b)(ix)) and the conditions under which funds may be spent (s 141(1)(b)(xi)). Section 141(3), it was noted, allowed the rules of an organisation to provide for "any other matter". 16 Mr Reitano submitted that the duties created by Schedule 1B of the WR Act and the Rules of the CEPU (in particular Rule 7.1.2.10, 19.1 and Divisional Rule 7) operated so as to exclude any power otherwise within s 106 of the IR Act to adjust or determine the terms and conditions upon which persons are employed, property is sold or the affairs of the organisation are arranged. 17 Mr Reitano submitted that the CEPU is a corporation constituted pursuant to Commonwealth law (s 27 of Schedule 1B of the WR Act). As a matter of law, it was contended, the CEPU's powers and functions cannot be defined, limited or controlled by any state statute, including s 106 of the IR Act or orders made there under: Williams v Hursey (1959) 103 CLR 30 at 66 per Fullagar J. 18 In substance and in fact, it was submitted, the applicant here seeks either directly or indirectly to purport to alter the rules of the CEPU by giving to some other body the power to, for example, adjust or determine the terms and conditions upon which persons are employed. Alternatively, (but in the same vein) what the applicant seeks to do is to detract from the binding force of those Rules. 19 Counsel for the CEPU submitted that the authorities relevant to the question now before the Commission are articulated in Barry v Australian Broadcasting Corporation (2002) 112 IR 33. A particular application of those authorities, although in slightly different circumstances, was to be found in the judgment of the Commission in Kanan v Australian Postal and Telecommunications Union (1990) 34 IR 446. Mr Jones' submissions 20 Mr A Moses of counsel appeared for Mr Jones. Mr Moses' submissions may be summarised as follows: (a) There is no inconsistency between the rules of the Union, which deal with the powers and duties of the Union, and section 106 of the Industrial Relations Act 1996 (NSW), which deals with the terms and conditions of employment. (b) The rules of the union do not contain any plenary power to set terms and conditions of employment, as was the case in Barry v Australian Broadcasting Corporation . To the extent that the Respondent asserts that Kanan v APTU supports it's position, that case is clearly distinguishable or alternatively, no longer represents good law. (c) What the Respondent must show, if it is to succeed on this application, is that the operation of the State law "would alter, impair or detract from the operation of a law of the Commonwealth". The Applicant notes, in this regard, that the submissions filed by the Respondent do not endeavour to identify how, if at all, the rules of the Union might "cover the field" (nor, indeed, do they identify what field would need to be covered to create an indirect inconsistency.) (d) The relevant test to apply is that if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent. (e) In the absence of evidence of an express intention to cover the field, the ambit of a Federal law falls to be determined by reference to the nature and scope of the law. (f) The Union rules do not evince an express or implied intention to cover the field with respect to matters arising from the termination of employment. (g) It cannot be seriously argued that rules of the Union which authorise the expenditure of funds on behalf of the Union create an inconsistency with a State law which is directed to the consideration of the fairness or otherwise of the terms of a contract of employment. This is tantamount to an argument that a State law which in any way regulated the expenditure of monies by the Union (such as the payment of state levies, charges or fines, or the expenditure of monies in a prohibited manner) create an inconsistency for the purposes of section 109 of the Constitution. (h) The position may be contrasted with the provisions of the Australian Broadcasting Corporation Act 1983 (Cth) which fell for consideration in Barry . Those provisions dealt specifically with the terms and conditions of employment, and even then, although the Full Bench found an inconsistency to arise, it was "much troubled" in finding the necessary legislative intention on the part of the Commonwealth. The "trouble" in the present case, in this regard, is insuperable. (i) The mere fact that the Respondent is set up by a Commonwealth statute does not render the general law inapplicable to its activities. It operates within the legal framework provided by the rules of the common law and the statutes of the State, except such rules as are excluded by relevant Federal legislation: The statements of the High Court in Williams v Hursey suggesting that the Respondent would be immune from State legislation have been overtaken by history, for the reasons given by Gummow J in Re Residential Tenancies Tribunal of NSW (1996) 190 CLR 410 at 471. (j) Sections 412 and 414 of the Workplace Relations Act do not operate to exclude the jurisdiction of this Commission, for the reasons explained by the Full Court of the Federal Court of Australia in NUW v Davids Distribution Pty Ltd (1999) 165 ALR 595. (k) Kanan was concerned with a set of circumstances in which the applicant held an office of the Union, but did not also hold a position of employment. This case involves both an office and an employment relationship. It follows that the rules of the Union do not have the determinative effect in this case that they had in Kanan. Submissions for the Attorney General 21 Ms R Pepper of counsel appeared for the Attorney. Ms Pepper's submissions, in support of those for the respondent on the motion, may be summarised (most references omitted) as follows: (a) The respondent has not in its submissions identified the basis upon which the alleged inconsistency is said to arise. Furthermore, notwithstanding that the starting point of any issue arising pursuant to s 109 of the Constitution is to identify with precision the federal and state law said to give rise to the inconsistency, the respondent has not in its submissions been able to clearly identify any federal law said to be inconsistent with the state law, viz, the unfair contract provisions of the IR Act. This, the Attorney submits, strongly indicates from the outset that no inconsistency arises and s 109 of the Constitution has not been enlivened. (b) In order to succeed on an argument based on indirect inconsistency the respondent must show that the terms and operation of the Commonwealth law, the WR Act (the CEPU Rules are not and cannot be federal law for the purpose of s 109), evince a legislative intent to cover the field to the exclusion of the provisions of the IR Act. The Attorney submits that for the reasons outlined below, this burden has not been discharged. (c) First, it is clear that the mere fact that the respondent is a corporation constituted under a Commonwealth law, viz, the WR Act, does not preclude the operation of s 106 of the IR Act in respect of that organisation. Rather, the CEPU operates within the existing legal framework, both common law and statutory, of the State unless that legal framework is expressly excluded by Commonwealth enactment. In the absence of the respondent identifying any express exclusion displacing the operation of the state law, the respondent will therefore be bound by a law of general application such as that contained in s 106 of the IR Act. To this extent the decision in Willams v Hursey relied upon by the respondents no longer represents the current state of the law. (d) Second, the respondent fails to properly articulate what constitutes the "field" for the purpose of s 109. The subject matter of s 106 of the IR Act is directed to contracts for the performance of work found to be unfair on the grounds specified therein. Once the contract is established to be unfair then the provision confers upon the Court the power to make an order varying or voiding all or part of the contract so as to remedy the unfairness. Thus if the "field" is unfair contract then it is tolerably clear given the circumscribed scope of the unfair contract provisions of the WR Act in ss 127A-127C and upon a proper characterisation of s 141 of Schedule 1B of the WR Act (even if read in conjunction with the relevant CEPU Rules) that it was never the Commonwealth's intention to cover the field in this regard. (e) Even if the "field" included the conditions, terms and termination of employment more generally, then likewise the WR Act does not evince an intention to cover the field in relation to such matters. It is manifestly clear from an examination of the both the Act and the CEPU Rules that neither purport to exhaustively regulate the terms and conditions of employment or of its termination. (f) Properly characterised, the "field" for the purposes of s 141 of Schedule 1B is the provision for and the proscription of the minimum content of the "rules" for an organisation incorporated under the WR Act and not the terms and conditions of employment or the fairness of its termination. Accordingly, no indirect inconsistency arises. (g) Alternatively, the respondent must demonstrate some form of direct inconsistency. That is, in order to succeed on the Motion the respondent must show that the operation of the provisions of s 106 of the IR Act would alter, impair or detract from the operation of a law of the Commonwealth. (h) The CEPU's Rules are not a federal law that can be detracted from, impaired or altered. Second, the power of the Court to make an order under s 106 of the IR Act varying or declaring void a contract of employment which is found to be unfair in no way detract from, alters or impairs the ability of an organisation such as the CEPU to make rules (or define its powers or duties under any Rules it makes) pursuant to the operation of ss 140-142 of Schedule 1B of the WR Act. That this proposition is correct is highlighted by the particular CEPU Rules identified by the respondent which largely concern the expenditure and investment of the CEPU's funds and property and not the fairness of the terms and conditions of a contract of employment. (i) No inconsistency, direct or indirect, arises between the provisions of s 106 of the IR Act and s 414 of the WR Act as the latter provision has been held to confer exclusive jurisdiction on the Federal Court only insofar as an organisation may be exposed to liability for an act or omission, or a pecuniary penalty, which is occasioned by an action brought under the WR Act: National Union of Workers v Davids Distribution Pty Ltd (1999) 91 FCR 513 at [26]. (j) In light of the discussion above it follows that: (i) the respondent is subject to s 106 of the IR Act irrespective of whether or not it is a corporation constituted under a Commonwealth enactment; (ii) there is no inconsistency for the purposes of s 109 of the Constitution between the s 106 of the IR Act and the relevant provisions of the WR Act and/or the CEPU Rules; and (iii) section 414 of the WR Act does not exclude the jurisdiction of the Court in the present proceedings. Consideration 22 As I understand the CEPU's submissions, the law of the Commonwealth upon which it relies is the WR Act and specifically on s 414 and Schedule 1B to that Act, which it contended had to be considered together with its registered Rules. The Rules, per se, do not, in my opinion, constitute a law of the Commonwealth. In considering whether any inconsistency exists, the CEPU's Rules must be read in the context of the relevant Commonwealth enabling law, that is, the WR Act. This is consistent with the approach taken by Dixon J in Ex Parte McLean (1930) 43 CLR 472 at 484 where his Honour was considering the status of an industrial award in the context of whether it constituted a law of the Commonwealth. His Honour held that it did not: The Federal instrument, which prescribes performance of the shearers' contract of service, is the award of the Commonwealth Court of Conciliation and Arbitration. But unlawful as it is to depart from the course which such an instrument describes and requires, the instrument itself is, nevertheless, not "a law of the Commonwealth" within the meaning of those words in sec. 109. Sec. 109 cannot, therefore, operate directly upon it so as to render a State law invalid because it is inconsistent with the intentions which the arbitrator expresses in the award. But these considerations do not end the matter. They do establish that if State law is superseded it must be upon the ground that the State law thereupon becomes inconsistent with the meaning and effect of the Commonwealth Conciliation and Arbitration Act itself. But the provisions of that Act itself, which establish awards made under its authority, may have a meaning and effect consistently with which State law could not further affect a matter for which such an award completely provides. If the Act means not only to give the determinations of the arbitrator binding force between the disputants but to enable him to prescribe completely or exhaustively what upon any subject in dispute shall be their industrial relations, then sec. 109 would operate to give paramountcy to these provisions of the statute, unless they were ultra vires , and they in turn would give to the award an exclusive operation which might appear equivalent almost to paramountcy. 23 In other words, in these proceedings the question of inconsistency is to be tackled by a consideration of the WR Act (in particular, Schedule 1B) as it applies through the medium of the CEPU's Rules. I note in Flaherty v Girgis (1987) 162 CLR 574, whilst Pt 10, r 2 of the Supreme Court Rules 1970 (NSW) was the focus of the High Court's consideration in that case it was observed at 588 (per Mason ACJ, Wilson and Dawson JJ) that the actual law of the State that was alleged to be inconsistent with the relevant Commonwealth law (the Service and Execution of Process Act 1901) was s 122 of the Supreme Court Act 1970, which authorised the rules, "but the inconsistency is to be found initially in a comparison of the federal Act with the rules …" 24 It was not entirely clear on what basis the CEPU was contending there was an inconsistency between s 106 of the IR Act and the provisions of the relevant Commonwealth law. I will assume though, it was on two bases, firstly, that the terms and operation of the Commonwealth law disclose a legislative intent to cover the relevant field ("cover the field" test) and secondly, that the relevant provisions of the IR Act "alter, impair or detract from" the Commonwealth law's conferral of jurisdiction either directly or indirectly (see P v P (1994) 181 CLR 583 at 602-603 per Mason ACJ, Deane, Toohey and Gaudron JJ). The two tests may overlap (see Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47) and whether there is an inconsistency may depend on more than one test (see Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 per Mason J at 259-260). 25 There was no express identification of the field that is said to be covered by the Commonwealth law. However, it would seem reasonably apparent that the field covered by Schedule 1B of the WR Act is, as the title suggests, the registration and accountability of organisations. Mr Reitano would have me accept, however, that the provisions of the Schedule to which he has referred, extend its reach to the adjustment or setting of terms and conditions of employment of employees and that this is reflected in the CEPU's Rules. In other words, in prescribing detailed provisions in Schedule 1B for the registration and accountability of organisations, including requirements that the rules of organisations define the powers and duties of committees of the organisation and its branches and the powers and duties of holders of office in the organisation and its branches, the manner in which the property of the organisation is to be controlled and its funds invested and the conditions under which funds may be spent, the Schedule excludes any power otherwise within s 106 of the IR Act to adjust or determine the terms and conditions upon which persons are employed, property is sold or the affairs of the CEPU are arranged. Mr Reitano referred to the relevant Rules of the Union made pursuant to the provisions of the Schedule relating to the expenditure of funds, etc., and, in particular, to r 54(a) of the Communications Division, which provides: Branch Committees of Management shall, with the approval of Divisional Conference where any cost is borne by Divisional Conference, have power to employ Industrial Officers. Any person shall be eligible for employment as Industrial Officer. The method of selection shall be determined by the Branch Committee of Management. The duties of the Industrial Officer shall be determined by the Branch Secretary. 26 The subject matter of s 106 has been considered in a number of important cases by the Commission in Court Session. Perhaps the clearest exposition is to be found in the Full Bench judgment in Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648 at 679 - 685; (1999) 93 IR 1 at 28 - 35, which was quoted with approval in Barry v Australian Broadcasting Corporation at [26] and Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124 at [44]-[45]. The relevant passage in Beahan was that: What emerges from the above authorities, we think, is the now settled view that s.106 (as with the previous s.88F of the 1940 Act and s.275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the section is properly concerned with the fairness of the terms of a contract of employment in its various respects and, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case. 27 After reviewing the cases, including Beahan, the Full Bench in Barry held at [27]: 27 In summary, the subject matter of s 106 is the power of the Court in relation to a relevant contract, including as here a contract of employment, as being one whereby work is performed in any industry. The operation of the section on the ground of unfairness being found is to declare the subject contract void or to vary it and to make an order for the payment of money in connection with the contract so declared void or varied. Howsoever one views s 106, either in substance or in form, it is clear that an inherent and fundamental aspect is the contract itself as to its terms and conditions, including any adjustment thereof. The payment of money in connection with the contract so declared void or varied is dependent upon such a declaration being made: see Tana v Baxter (1986) 160 CLR 572 at p 578 and BNY Australia Ltd v James (1992) 26 NSWLR 57 at pp 83, 95; [1992] 40 IR 1 at pp 25, 38. Also, any order for the payment of money is to be one with a necessary connection with the contract: see Brown v Rezitis (127 CLR at pp 166, 170). 28 The WR Act, and Schedule 1B in particular, contain no express declaration that it is intended to be the exclusive law in relation to the determination of terms and conditions of employment including any adjustment thereof. What has to be asked, therefore, is whether it was the Commonwealth's Parliament's intention to express by its enactment of Schedule 1B, "completely, exhaustively, or exclusively", what shall be the law governing the terms and conditions of employment of persons employed by an organisation incorporated pursuant to s 27 of Schedule 1B: McLean at 483 per Dixon J. See also T A Robinson and Sons Proprietary Limited v Haylor (1957) 97 CLR 177. 29 There are a number of factors that tell against any inconsistency between s 106 of the IR Act and the Commonwealth laws relied upon by the CEPU. Firstly, the Commonwealth laws relied upon by the CEPU do not evince an intention to cover the field. The provisions of Schedule 1B referred to by the CEPU do not even refer to employment or the fairness or otherwise of employment contracts let alone deal completely, exhaustively or exclusively with those subject matters. Section 106 and Schedule 1B of the WR Act occupy completely different fields; the former is concerned with the registration and accountability of federally registered organisations and the latter with unfair contracts as described in Beahan, Barry and Taudevin. 30 Once an organisation is registered pursuant to Schedule 1B, it achieves the status of a body corporate that has the power to "purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with, any real or personal property" and to sue and be sued in its own name. Most of these activities would involve entering into of contracts, most under State law. Nothing in the WR Act or Schedule 1B indicates that State law in these respects or in any other respect is excluded. Moreover, s 142(1)(a) of Schedule 1B provides that the rules of a registered organisation: [m]ust not be contrary to, or fail to make a provision required by this Schedule, the Workplace Relations Act, an award, a certified agreement or an old IR agreement, or otherwise be contrary to law. The reference to "law" makes no distinction between Commonwealth and State laws. A further consideration is that s 106 is a general law of the State: s 404 of the IR Act. See also Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124 at [50] where it was stated: 50 The Commonwealth concedes, correctly in our view, that s 404 of the Industrial Relations Act displaces the presumption that the executive government is not bound by a statute which regulates the conduct and rights of individuals: Commonwealth v Western Australia . 31 In my opinion, the intention of the legislature in providing for laws relating to registered organisations was that such organisations would operate within a legal framework provided by the common law and State law and relevant Commonwealth laws. The Commonwealth laws relied upon by the CEPU do not constitute a comprehensive or exclusive code ousting the operation of general State laws such as s 106 of the IR Act. 32 Counsel for the CEPU referred to r 54(a) of the Communication Division's Rules. That rule provides that the Branch Committee of Management has the power to employ Industrial Officers. The method of selection of Industrial Officers is to be determined by the Branch Committee of Management but duties of the Industrial Officer are to be determined by the Branch Secretary. Rule 54(a) does no more than grant the Branch Committee of Management power to select and employ Industrial Officers and reserves to the Branch Secretary the right to determine the duties of Industrial Officers. The rule does not reserve to any organ of the Communications Division of the CEPU the right to completely, exhaustively or exclusively determine terms and conditions of employment for Industrial Officers. 33 This is in contrast to the conclusion reached by the Full Bench in Barry v Australian Broadcasting Corporation that "the provisions of s 106 of the State Act have no application to the respondent because they are inconsistent, as that term is used in s 109 of the Constitution, with s 32 of the Commonwealth Act so as to be inoperative" ([45]). Section 32 of the Commonwealth Act, which in that case was the Australian Broadcasting Corporation Act 1983, provided: Staff of Corporation 32. (1) The Corporation may engage such employees as are necessary for the performance of its functions and the exercise of its powers. (2) The terms and conditions of employment shall be determined by the Corporation. 34 It may be seen that s 32(2) of the Commonwealth Act provided that the terms and conditions of employment of employees of the Corporation were to be determined by the Corporation. Whilst the Full Bench in Barry v Australian Broadcasting Corporation was troubled by the difficulty of identifying the legislative intention in the enactment of s 32 of the Commonwealth Act, it considered it was bound by the High Court judgments in Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 and Dao v Australian Postal Commission (1987) 162 CLR 317. 35 The High Court in Australian Broadcasting Commission v Industrial Court (SA) had held that the relevant provisions of the Broadcasting and Television Act 1942 (Cth) constituted a comprehensive and exclusive code regulating the appointment, promotion, transfer, retirement and dismissal of officers in the service of the Australian Broadcasting Commission Accordingly, it was held that 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA), in relation to the power of the Industrial Court to make certain orders relieving the unfair dismissal of a temporary employee, was inconsistent with the Commonwealth law. The High Court in Dao unanimously affirmed the correctness of Australian Broadcasting Commission v Industrial Court (SA). 36 The Full Bench in Barry v Australian Broadcasting Corporation found that the power granted to the Australian Broadcasting Commission by s 43(2) and (6) of the Broadcasting and Television Act in relation to the engagement and determination of the terms and conditions of employment for temporary employees and that granted to the respondent by s 32 of the Australian Broadcasting Corporation Act was obvious: [43]. Moreover, there was no relevant distinction between s 15(1)(e) of the South Australian statute and s 106 of the IR Act: [43]. 37 That the CEPU Rules contain provisions made pursuant to Schedule IB - for example, that the National Council has exclusive power to authorise expenditure of monies by the National Secretary (r 7.1.2.10), does not, in my opinion, create an inconsistency with a general law of the State that is directed to questions of fairness of contracts. As the applicant submitted, to accept such a submission would be tantamount to upholding the proposition that a State law that in any way impacted on the expenditure of monies by the CEPU (such as the payment of State levies and charges) would create an inconsistency within the meaning of s 109 of the Constitution. Whilst the National Council may have an exclusive power to authorise the expenditure of monies, the power is only exclusive within the organisation itself. That is, no other body or officer within the CEPU may authorise the expenditure of monies by the National Secretary for the performance by the Secretary of his or her duties under the Rules of the organisation. The Rules themselves are not a law of the Commonwealth and the reference to exclusive power in the Rules cannot be taken to reach beyond the boundaries of the organisation. 38 In relation to direct inconsistency, Mr Reitano sought to illustrate his point by reference to s 164 of Schedule B, which provides that a member of an organisation may apply to the Federal Court for an order under the section in relation to the organisation. An order under the section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules. The Court was asked to assume that a member of the CEPU sought and was granted an order in the Federal Court for the organisation to observe its Rules "in respect of the expenditure of money concerning the employment of the applicant" but that the Commission in Court Session had already made an order under s 106 of the IR Act in relation to the applicant which was inconsistent with the order sought in the Federal Court. As I understand counsel's submission, a constitutional inconsistency would thereby arise. 39 It is difficult to conceive what order the Federal Court could be asked to make "in respect of the expenditure of money concerning the employment of the applicant". The Court would be limited under s 164 of the Schedule to making an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules. As the CEPU's Rules make no provision in respect of how money is to be expended in relation to the employment of persons I am unable to see what order the Federal Court could make for the performance or observance of a rule that does not exist. The Commission in Court Session is empowered under s 106 to declare the subject contract void or to vary it and to make an order for the payment of money in connection with the contract so declared void or varied. How such a declaration or order would conflict with the powers of the Federal Court under s 164 of Schedule 1B of the WR Act is not apparent to me. But in any event, the example posed by Mr Reitano could be no more than an operational inconsistency (see The State of Victoria & Ors v The Commonwealth of Australia and Ors (1937) 58 CLR 618 at 631 per Dixon J; Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392 at 416 per Gleeson CJ and Gaudron J) that might arise in the event the Commission in Court Session were to make orders inconsistent with those of the Federal Court. The fact that there may be an operational inconsistency does not deprive the Court of jurisdiction at the threshold. 40 Mr Reitano referred to s 414 of the WR Act providing as it does that the jurisdiction of the Federal Court of Australia in relation to acts or omissions for which a federally registered organisation is liable to be sued is exclusive of the jurisdiction of any other Federal or State Court. As counsel for the Attorney submitted, however, s 414 has been held to confer exclusive jurisdiction on the Federal Court only in so far as an organisation may be exposed to liability for an act or omission, or a pecuniary penalty, which is occasioned by an action under the WR Act. Reference was made to the decision of the Full Court of the Federal Court in National Union of Workers v Davids Distribution Pty Ltd (1999) 91 FCR 513 at [26]: Section 414(1) makes exclusive to this court its jurisdiction 'in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty'. These words describe the jurisdiction in terms of the act or omission that exposes the organisation or member to liability. It must be an act or omission in respect of which an application or action may be brought under the Workplace Relations Act or a penalty recovered under that act. The words are not apt to describe jurisdiction to restrain conduct that is unlawful at common law, in relation to which no application or action may be brought, or penalty recovered, under the Workplace Relations Act. This is so, even if this court obtains jurisdiction in the matter because a Commonwealth statutory provision is raised as a defence to the claim. 41 It was submitted that if the Supreme Court in the circumstances of NUW v Davids Distribution had jurisdiction to hear and determine proceedings for injunctive relief and contempt, then by parity of reasoning it followed that the Commission in Court Session had jurisdiction with respect to proceedings commenced under s 106 of the IR Act in circumstances where no application is made under the WR Act. I agree. 42 Counsel for the CEPU placed reliance on Williams v Hursey as authority for the proposition the CEPU's powers and functions cannot be defined, limited or controlled by any state statute, including s 106 of the IR Act or orders made there under. In this respect Mr Reitano was relying on what Fullagar J said at 66: But in any case, apart altogether from Osborne's Case (1910) AC 87 and Wilson's Case (1912) SC 534 it seems to me inconceivable, as a matter of constitutional law, that any State statute should have the effect of defining or limiting or controlling the powers of a corporation created by Commonwealth law. See also Commonwealth v Bogle Borehan & Clark (1953) 89 CLR 229 at 259 per Fullagar J where his Honour stated: To say that a State can enact legislation which is binding upon the Commonwealth in the same sense in which it is binding upon a subject of the State appears to me to give effect to a fundamental misconception. 43 In Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495, Dawson, Toohey and Gaudron JJ (constituting the majority with Brennan CJ, McHugh and Gummow JJ, Kirby J dissenting) held that the doctrine in Commonwealth of Australia v Cigamatic Pty Ltd (1962) 108 CLR 372 did not give the Crown in right of the Commonwealth a special immunity from State or Federal laws of general application (at 443). The three justices described what Fullagar J had said in Bogle as "unsupportable". 44 In Commonwealth v Western Australia (1999) 196 CLR 392, Hayne J observed at 471-472: The States, on the other hand, do not have specific legislative powers and do not have power to affect the capacities of the Commonwealth executive: Re Residential Tenancies Tribunal (1997) 190 CLR 410 at 440, per Dawson, Toohey and Gaudron JJ. The content and application of these principles has been controversial ( The Commonwealth v Bogle (1953) 89 CLR 229 at 259 per Fullagar J; cf The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372) and it may well be that there is still room for doubt about them. But it is clear that whatever the content or application of these principles, it is not right to say that State laws cannot by their own force bind the Commonwealth. A submission to that effect was expressly rejected by the majority in Re Residential Tenancies Tribunal (1997) 190 CLR 410 at 438 per Dawson , Toohey and Gaudron JJ and it is a proposition that cannot be supported in principle. The contrary view expressed by Fullagar J in The Commonwealth v Bogle (1953) 89 CLR 229 at 259: "[t]o say that a State can enact legislation which is binding upon the Commonwealth in the same sense in which it is binding upon a subject of the State appears to me to give effect to a fundamental misconception" should be rejected for the reasons given by the majority in Re Residential Tenancies Tribunal . No doubt, if State legislation contains no provision dealing with its effect on the Commonwealth, deciding whether a State law is intended to bind the Commonwealth may be difficult. Further, if the State law is intended to bind the Commonwealth, there may be a difficult issue about whether it is a law that affects the capacities of the Commonwealth executive (as distinct from the particular exercise of those capacities): Re Residential Tenancies Tribunal (1997) 190 CLR 410 at 438 - 439, per Dawson , Toohey and Gaudron JJ. But the first question is whether the State law, in this case the Mining Act , is to be construed as intending its operation to affect the Commonwealth. 45 In Re Residential Tenancies Tribunal the Defence Housing Authority leased a home unit for the purpose of sub-leasing the premises to defence personnel. The owners of the unit sought to enter and inspect the unit pursuant to s 24 of the Residential Tenancies Act 1987 and, upon being refused, sought orders from the Residential Tenancies Tribunal. The Authority sought prohibition against the Tribunal from proceeding contending that the Residential Tenancies Act was constitutionally invalid or beyond the power of the New South Wales Parliament to the extent that it purported to confer jurisdiction on the Tribunal over the Authority and therefore that it was not bound by the Act and that the Tribunal had no jurisdiction to make orders. 46 The High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, Kirby J dissenting) held, relevantly, that the Defence Housing Authority Act 1987 (Cth), which established the Defence Housing Authority as a body corporate, did not constitute a comprehensive and exclusive code regulating the Authority's function of providing housing for the need of the defence force; the Act assumed the operation of the common law as modified by statute. Accordingly, there was no inconsistency between the Commonwealth and State laws. It was further held by Brennan CJ, Dawson, Toohey and Gaudron JJ, that the principle in The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372 did not preclude the valid operation of the Residential Tenancies Act in the circumstances. Further, that a State law may not validly restrict or modify the capacities of the Crown in the right of the Commonwealth but may validly regulate the activities in which the Crown chooses to engage in exercising those capacities. 47 I am unable to see any relevant distinction between what was determined by the High Court in Re Residential Tenancies Tribunal as to the application of the Residential Tenancies Act to the Defence Housing Authority and the application of s 106 to the CEPU that would lead me to conclude s 106 has no application. In this respect I have had particular regard to the reasoning of the Full Bench in Taudevin (No 1) where the Full Bench held that the Commonwealth was not immune from any exercise of the power in s 106 in those proceedings. There is nothing that has been put to me in the present proceedings that would lead me to take a different approach to that of the Full Bench in Taudevin (No 1). 48 Counsel for the CEPU also relied on the decision of Glynn J in Kanan. In that case her Honour dismissed a summons for relief under s 88F of the Industrial Arbitration Act 1940 on the ground that she did not have jurisdiction to entertain the summons "to the extent that it involves the rules of a federally registered industrial organisation." 49 Mr Kanan was a full time official of the New South Wales Branch of the Australian Postal and Telecommunications Union. His office was terminated by the Union. As Glynn J noted at 453: The relief sought in par 2A [of the summons] is that the contract and/or arrangement between the parties shall be varied by the insertion of a clause relating to termination. The proposed clause is an adaptation inserted into awards (see Gregory v Philip Morris Ltd ). However, the contract and/or arrangement considered in this application is not an award. The only contract and/or arrangement specified between the applicant and the respondent relates to the applicant's office in the APTU. On the material before the Commission, the appropriate variation in the contract and/or arrangement to accommodate that proposed clause would be to cl 56, Offences and Penalties, and in particular sub-cl (vii) of that clause, of the rules of the APTU. It seems to me that once it is accepted that Mr Kanan's relationship with the union was an "office" not employment then the rules not merely "loom large" (McMahon's case) but are central to the regulation of the relationship. 50 Glynn J then referred to the judgment of Fullagar J in Williams v Hursey as authority for the conclusion she reached, namely, that as Mr Kanan held an elected office in the APTU and the APTU was a federally incorporated body with rules registered pursuant to Commonwealth laws, she had no jurisdiction (I note that Williams v Hursey would no longer support her Honour's conclusion: see Re Residential Tenancies Tribunal and Commonwealth v Western Australia). 51 In the present proceedings, Mr Jones has not pleaded unfairness in relation to the office he holds with the CEPU. Indeed, he continues in that office. Mr Jones claims unfairness in relation to the quite separate contract of employment terminated by the respondent, a critical ingredient missing from the factual circumstances in Kanan. Mr Reitano sought to submit, in effect, that no distinction should be made between the circumstances in Kanan and those applicable in this case and that I should follow Kanan. 52 There does not appear to me to be any relevant intersection between the duties of the Branch Vice President and those of an Industrial Officer under the CEPU's Rules. The duties of the Branch Vice President of the Communications Division are: [T]o assist the President. In the absence of the President, on of the Vice Presidents shall occupy the Chair, conduct the business, and perform all duties of President. He or she shall sign in accordance with the Rules, cheques, and all documents requiring his or her signature as requested by the Branch Secretary. 53 The duties of an Industrial Officer are not defined and it is a matter for the Branch Secretary to determine the duties of such employees. An Industrial Officer may be considered to be a person employed by an organisation to handle industrial matters arising in relation to the industries and callings of the members of the organisation. See, for instance, Rounsevell v Mitchell (1968) 11 FLR 414 at 429. 54 Mr Jones fulfilled two separate roles with the CEPU; as an elected official and as an employed Industrial Officer. The contract and/or arrangement with which the Court is concerned, is the contract of employment between Mr Jones and the CEPU and not the office of Branch Vice President. The contract of employment is a common law contract and its terms and conditions are not determined by the provisions of the WR Act or Rules of the CEPU other than the fact that the CEPU may determine the duties to be performed. In my opinion, Kanan may be readily distinguished from the present proceedings. 55 Undoubtedly, in making a contract of employment with a person appointed as an Industrial Officer, the relevant body or person within the CEPU will agree with that person on the terms of the contract within the scope of any internal rules or guidelines relating to such matters. It may be the Industrial Officers are subject to the terms of a Federal industrial instrument, although there was no evidence to that effect. But in my opinion, there is nothing in the WR Act or the Rules of the CEPU that would preclude the operation of s 106 of the IR Act in respect of the claim by Mr Jones in the same way as other State laws such as the Annual Holidays Act 1944 or the Long Service Leave Act 1955 would apply to Mr Jones' employment, subject to any supervening Federal instrument. 56 The unfairness alleged by Mr Jones in his summons relates to a contract and not what was done under any Commonwealth law. The contract does not owe its existence to any Commonwealth law. There is no inconsistency within the meaning of s 109 of the Constitution. 57 I order that the CEPU's motion is dismissed. The applicant on the motion shall pay Mr Jones' costs of the motion. _____________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.