Unions NSW & Ors v State of New South Wales

Unions NSW and others (the applicants) sought judicial review of the validity of certain provisions of the *Industrial Relations Amendment Act 2020* (NSW) (the Act) and the *Industrial Relations Amendment Regulation 2020* (NSW) (the Regulation). The applicants contended that these provisions, which restricted the ability of unions to engage in industrial action and imposed penalties for breaches, were invalid under section 109 of the *Constitution* due to inconsistency with the *Fair Work Act 2009* (Cth). The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the impugned provisions of the Act and the Regulation were invalid by reason of inconsistency with the *Fair Work Act 2009* (Cth), as provided by section 109 of the *Constitution*. Specifically, the court had to determine if the state legislation, by purporting to regulate or prohibit conduct that the federal Act permitted or regulated, went beyond the legislative power of New South Wales and was therefore invalid.

The High Court held that the provisions of the Act and the Regulation were invalid due to inconsistency with the *Fair Work Act 2009* (Cth). The majority reasoned that the federal Act established a comprehensive scheme for regulating industrial relations, including the right to take protected industrial action. The state legislation, by imposing prohibitions and penalties on conduct that was permitted under the federal scheme, created a direct inconsistency. This inconsistency meant that the state laws could not operate concurrently with the federal laws, and therefore, by operation of section 109 of the *Constitution*, the state laws were invalid to the extent of the inconsistency. The court applied the principles of constitutional inconsistency, focusing on whether the state law required or authorised a person to do something that the federal law prohibited, or prohibited a person from doing something that the federal law authorised.

The High Court declared the impugned provisions of the *Industrial Relations Amendment Act 2020* (NSW) and the *Industrial Relations Amendment Regulation 2020* (NSW) to be invalid.