Qld Rail workers part of Fair Work – High Ct rules

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Qld Rail workers part of Fair Work – High Ct rules

The High Court has unanimously ruled that Qld legislation that purported to take Qld Rail employees out of the Fair Work system and bring then under state legislation was invalid.

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The High Court has unanimously ruled that Queensland legislation that purported to take Queensland Rail employees out of the Fair Work system and bring them under state legislation was invalid.

The legislation had been passed by the former Newman government that lost power in the 2015 election.

[Full text of this case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 (8 April 2015)]

A seven-member bench heard the union case against the validity of certain sections of the Queensland Rail Transit Authority Act 2013 (Q) and  the Industrial Relations Act 1999 (Qld).

Qld Rail – a trading corporation

A central question was whether the employing entity set up by the Qld legislation was a trading corporation, as the Fair Work legislation covered trading corporation for industrial relations purposes.

Queensland Rail was found to be a trading corporation within the meaning of s51(xx) of the Commonwealth Constitution.

The union plaintiffs were entitled to have the questions asked in the special case answered in their favour.

The Fair Work Act 2009 (Cth) was found to apply to Queensland Rail and its employees by the operation of s109 of the Constitution, to the exclusion of the Queensland Rail Transit Authority Act 2013 (Q) or the Industrial Relations Act 1999.

The QRTA Act provided that the Authority "is not a body corporate" and this was found to be invalid.

The QRTA Act provided that the Authority did not represent the State and it followed from this provision, coupled with the provisions which give the Authority separate legal personality, that the Authority was not, and is not a part of, the body politic which is the State of Queensland. This was rejected by the High Court.

Justice Gagelier


In a separate judgment agreeing with the conclusions of the six member judgment Justice Gagelier also pointed out that Queensland Rail is a trading corporation. The word "trading" was one descriptor of the class of Australian corporations with respect to which s 51(xx) confers power on the Commonwealth Parliament to make laws. Not being a term of art, but being instead an adjectival form of the noun "trade", "trading" in s51(xx) was to be interpreted and applied with the same liberality as "trade" in ss 51(i) and 92. There was no reason to consider that "trading" must be descriptive of every "trading corporation" in the same way.

Queensland Rail has legal personality because it was legislatively conferred with capacity to own property, to contract and to sue. Labour hire companies are caught by the legislation – the engagement of personnel by one enterprise for supply of their labour to another enterprise was a trading activity.

See also: What is a ‘constitutional corporation’? The fundamental qualifying condition for a business to be part of the Fair Work system is that the business is a constitutional corporation or commonly expressed as a trading corporation.

The bottom line: The reach of federal legislation is wide in the area of industrial relations and state legislation is not able to confine the legitimate application of federal legislation – as the High Court noted in this case.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 (8 April 2015) 

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