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High Court of Australia |
THE QUEEN v. COLDHAM; Ex Parte AUSTRALIAN SOCIAL WELFARE UNION [1983] HCA 19; (1983)
153 CLR 297
Industrial Law (Cth)
High Court of Australia
Gibbs C.J.(1), Mason(1), Murphy(1), Wilson(1), Brennan(1), Deane(1)
and Dawson(1) JJ.
CATCHWORDS
Industrial Law (Cth) - Conciliation and Arbitration - Industrial dispute - Scope - Whether any dispute between employees and employers about terms of employment and conditions of work included - Demand on behalf of employed social workers - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxv) - Conciliation and Arbitration Act 1904 (Cth), s. 4(1) "employee", "employer", "industrial dispute", "industrial matters", "industry".
HEARING
1983, March 8, 9; June 9. 9:6:1983DECISION
June 9.2. On 10 July 1979 the Australian Conciliation and Arbitration Commission ("the Commission") made a finding of an industrial dispute under s. 24 of the Act between the prosecutor and a number of Committees. The dispute arose out of the non-acceptance of a log of claims served by the prosecutor relating to the pay and conditions of project officers employed by the Committees. The Committees, supported by the Minister for Employment and Youth Affairs (who intervened), sought a revocation of the finding on the ground that neither the Committees nor the project officers were engaged in or in connexion with an industry, that project officers were not engaged in work of an industrial nature and that the eligibility rules of the prosecutor do not embrace project officers employed by the Committees. The application for revocation of the finding was rejected by Mr. Deputy President Isaac. On appeal, the Full Bench of the Commission (Coldham J. and Mr. Commissioner Turbet, with Cohen J. dissenting) allowed the appeal and set aside the finding of dispute on the ground that the activities of the Committees were not incidental to industry. (at p302)
3. The relevant facts are conveniently reviewed in the decision of Mr. Deputy President Isaac and in the decisions of the members of the Full Bench. The Community Youth Support Scheme (hereinafter referred to as "CYSS" or "the Scheme") was inaugurated in 1976 with the authority of the Minister for Employment and Industrial Relations. There is a hierarchy of Committees in each State, ranging from State Committees, down through Electorate Committees, to the Local Committees. Members of the Local Committees are elected annually at public meetings and are responsible for engaging a project officer - some Committees may engage more than one such officer - whose job it is to carry out the objects of the Scheme in the manner endorsed by the Local Committees which are in turn under the surveillance of the Committees standing above them in the heirarchy. (at p302)
4. According to the 1978 Statement of Policy and Guidelines issued by the
Department, the objectives of the Scheme are "to operate
projects which
provide appropriate activities to help unemployed young people maintain their
morale and orientation towards work".
The Statement goes on to say that the
Scheme:
". . . does not, in itself, create or find jobs for young people. It
provides activities for young unemployed people which:
. develop or maintain their orientation to work;
. improve their abilities to apply for jobs as well as locate sources of employment;
. improve their ability to keep a job once they have found it, and
. help them to maintain their sense of direction and usefulness until they find employment.
Preference is given to approval of projects in areas of relatively high youth unemployment." (at p302)
5. The objectives of the Scheme were redefined in a Ministerial Statement of
4 December 1979 as follows:
"1. CYSS is a manpower program designed to assist communities in their
varied responses to the needs of the young unemployed.
2. To this end CYSS provides financial support to representative community committees to conduct programs and activities within supportive environments which:
. provide assistance to young people in their job search . maintain the employability of the young unemployed by maintaining or developing;
- job skills
- their ability to seek and obtain jobs
- their sense of purpose and direction
3. CYSS is only one of several manpower programs and is designed to assist these other programs. It operates at a community level and to the greatest extent possible draws upon existing community resources as well as assisting with the development and mobilisation of further voluntary action within the community." (at p303)
6. It is the function of a project officer to implement the approved Scheme
programme under the management of the Local Committee.
He is the manager of
particular projects on the day-to-day basis in accordance with local rules and
procedures determined by the
Local Committee. He plans and supervises the
daily programme of activities by participants, monitors the programme and
reports to
his Committee. He seeks the co-operative support of the
Commonwealth Employment Service, Government departments and welfare
organizations.
He also undertakes the required administrative tasks. (at p303)
7. The Deputy President summarized the evidence in this way:
"The participants of the scheme being generally young persons of poor
motivation and low self-esteem and lacking the employment
skill, the
courses organized by project officers are designed to enhance the
employability of participants by improving their
motivation, confidence,
self-esteem and sometimes their skills and in these ways assisting their
entry into the workforce,
occasionally by direct placement. The project
officers counsel the participants, liaise with various organizations
(e.g.,
Department of Social Security and the Commonwealth Employment
Service), refer participants to them and whenever appropriate speak
on
their behalf, and administer, organize and supervise various activities -
typing, leather works, woodwork, karate, guitar
lessons, pgotography,
air-brush work, drama, gardening, silk screen printing, drawing and so
on." (at p303)
8. Speaking of the project officers, he found:
"Their work is directed in various ways to improving the employability of
young unemployed people and therefore to increasing
the supply of
productive labour, mostly of the manual and unskilled type, as part of an
overall manpower programme. This
is clear from the guidelines of the
Scheme noted above which emphasize the employment related activities of
CYSS programmes,
and from inspections. It is clear also from evidence and
inspections that CYSS is primarily not a welfare or educational activity
but one concerned with increasing the supply of employable labour . . . "
(at p303)
9. And he concluded that:
"In assisting to add in a direct way to the supply of labour for
productive employment, CYSS is comparable in concept,
even if not in
scale, to banks and consumer credit institutions: all assist in the supply
of the means of production, in
the case of CYSS, of labour and in the
others, of capital."
In the result he thought the activities of the Committees were ancillary to or
incidental to industry. (at p304)
10. The majority of the Full Bench on examining the evidence arrived at a
different conclusion, observing:
"It is sufficient to say that those to whom the scheme, and by reason of
that fact the work of the project officer, is directed
are separated from
industry and indeed it is only during periods when the youthful
participants remain so separated that
the scheme and the work directed to
those participants has any relevance." (at p304)
11. In this Court the prosecutor's case is presented on two grounds: (1) that
the constitutional concept of "industrial dispute"
is sufficiently wide to
embrace any dispute between employer and employees as to the terms and
conditions of employment; and, alternatively,
(2) that the activities of the
Committees are incidental to industry as Mr. Deputy President Isaac and Cohen
J. found. (at p304)
12. As the decision in Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employes Association ("the Railway Servants' Case") (1906) 4 CLR 488 indicated, and as subsequent developments would demonstrate, the early interpretation of s. 51(xxxv) was dominated by a continuing political and legal controversy arising from federal-State conflicts. A, if not the, focal point of that controversy was the question whether the power conferred by s. 51(xxxv) enabled the Commonwealth to confer jurisdiction on the Commonwealth Court of Conciliation and Arbitration ("the Arbitration Court") to settle disputes between State instrumentalities or statutory authorities and their employees. The Railway Servants' Case answered that question in the negative, applying the doctrine of intergovernmental immunities to State railway authorities. The effect of the doctrine before Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") [1921] HCA 4; (1920) 29 CLR 129 made it inevitable in cases affecting State instrumentalities and authorities that the meaning of the expression "industrial dispute" as used in the Constitution and the Act was of secondary importance (Ex parte Professional Engineers' Association ("the Professional Engineers' Case") [1959] HCA 47; (1959) 107 CLR 208, at p 254 , per Taylor J.). The Court was more concerned with the nature and extent of the restrictions imposed by the doctrine than with the scope of the legislative power. (at p305)
13. An examination of the judicial interpretation of s. 51(xxxv), so far as
it relates to the industrial character of the disputes
of which it speaks,
necessarily begins with Jumbunna Coal Mine, N.L. v. Victorian Coal Miners'
Association (1908)
6 CLR 309 .
There
a challenge was made to the validity of
the provisions of the Act relating to the registration of organizations
of
employees
and
of employers on the ground, inter alia, that the subject matter
of the power imports a requirement that there must
be on both
sides
of the
dispute parties whose operations are carried on in more than one State. The
Court rejected this argument
and upheld
the validity
of the provisions in
question. Griffith C.J., O'Connor and Isaacs JJ. each took a broad view of the
expression
"industrial
disputes".
Griffith C.J. was alone in placing emphasis
on the notion that a dispute should involve a large number of
employees. And
the comments
of O'Connor J. reflect the impact of the doctrine of
intergovernmental immunities. Subject to these qualifications
their
Honours'
remarks supported a broad interpretation of the power. The Chief Justice said
(1908) 6 CLR, at p 332 :
"An industrial dispute exists where a considerable number of employes
engaged in some branch of industry make common cause
in demanding from or
refusing to their employers (whether one or more) some change in the
conditions of employment which
is denied to them or asked of them."
His Honour went on to say (1908) 6 CLR, at pp 332-333 :
"A question which arises at the outset is, what is an 'industrial
dispute' within the meaning of the Constitution? It must, of course, be a
dispute relating to an 'industry', and, in my judgment, the term
'industry' should be construed
as including all forms of employment in
which large numbers of persons are employed the sudden cessation of whose
work might
prejudicially affect the orderly conduct of the ordinary
operations of civil life." (at p305)
14. O'Connor J. (1908) 6 CLR, at p 365 began his discussion by observing:
"The appellants contend that the word 'industrial' in the Constitution
does not cover so wide a field, that it is restricted to work connected
directly or indirectly with production and manufacture.
'Industrial
dispute' was not, when the Constitution was framed, a technical or legal
expression. It had not then, nor has it now, any acquired meaning. It
meant just what the
two English words in their ordinary meaning conveyed
to ordinary persons, and the meaning of these words seems to be now much
what it was then."
After noting that the expression "industrial disputes" was "commonly used in
Australia to cover every kind of dispute between master
and workman in
relation to any kind of labour" (1908) 6 CLR, at p 366 , his Honour continued
(1908) 6 CLR, at p 367 :
"There is nothing in the Constitution to show that the word was intended
to be used in the narrower sense. On the contrary, the scope and purpose
of sub-s. xxxv.
would lead to an opposite conclusion. The use of the word
in its wider sense does not offend against any prohibition of the
Constitution, nor is it inconsistent with any of its provisions. The
control and regulation of employment and the relations of employers and
employes within the State are, no doubt, within the exclusive powers of
the State Parliaments, but disputes extending beyond
the limits of a State
are within State cognizance only in so far as the parties are within State
territory. Such disputes
cannot be reached effectively except by
Commonwealth authority."
Isaacs J. (1908) 6 CLR, at p 370 also took a wide view of the power. He spoke
of it extending -
". . . over the whole range of Australian industry in the largest sense
without qualification, wherever . . . it does or
may give rise to a
dispute extending beyond the limits of any one State, and thereby, in a
manner beyond the control of any
single State, disorganise the general
operations of society or interfere with the satisfaction of public
requirements in
relation to the service interrupted."
He suggested that the statutory definition of "industry" might be narrower
than the constitutional conception of "industrial", observing:
"An industry contemplated by the Act is apparently one in which both
employers and employes are engaged, and not merely
industry in the
abstract sense, or in other words, the labour of the employe given in
return for the remuneration received
from his employer." (at p306)
15. There was no major obstacle to the acceptance of an interpretation of the
arbitration power in accordance with that favoured
by Griffith C.J. or
O'Connor J. in Jumbunna, so long as the Court held firmly to the doctrine of
intergovernmental immunities. If,
however, the Court were to abandon that
doctrine, as it did in the Engineers' Case, then a broad interpretation of the
power would
expose once again the problem posed by the possible exercise of
jurisdiction by the Arbitration Court over State instrumentalities
or
authorities and their employees. (at p306)
16. Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation ("the Municipalities' Case") [1919] HCA 72; (1919) 26 CLR 508 was a harbinger of things to come. The importance of the immunities doctrine to the interpretation of the arbitration power was recognized by the division of the hearing into two stages. By majority (Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ., with Griffith C.J. and Barton J. dissenting) the Court held that municipalities established under State laws were not State government instrumentalities in relation to the making, maintenance, control or lighting of public streets. The judgments of the majority contain strong indications that the doctrine might have no application in Australia at all, but that question remained to be decided by the Engineers' Case. By a further majority (Isaacs, Higgins, Powers and Rich JJ., with Barton and Gavan Duffy JJ. dissenting) the Court also held that the Arbitration Court had authority to determine by award a dispute between an organization of employees and municipal corporations in connexion with those activities of municipal corporations which we have already mentioned. (at p307)
17. Higgins J. favoured a broad interpretation of the power. After remarking on the 1911 amendment to the Act and how it gave emphasis to the word "industry", he stated that it was not conclusive as to the meaning of the Constitution (1919) 26 CLR, at p 572 - an echo of Isaacs J. in Jumbunna. He pointed out that the words in the Constitution are "industrial disputes", not "disputes in an industry", that the phrase "industrial disputes" is not a technical one and that the question whether a particular dispute is an "industrial dispute" is one of fact (1919) 26 CLR, at p 573 . In this respect his approach was similar to that of O'Connor J. in Jumbunna, the substantial difference being that unlike O'Connor J. he did not subscribe to the immunities doctrine. Leaving demarcation disputes out of account, he concluded that the expression "industrial disputes" "includes, at all events, a dispute between employer and employee as to their reciprocal rights and duties" (1919) 26 CLR, at p 575 . He rejected the suggestion that industrial disputes excluded disputes to which non-manual workers only were parties. (at p307)
18. The joint judgment of Isaacs and Rich JJ., which involved a retreat on
the part of Isaacs J. from the position which he occupied
in Jumbunna, was to
influence the future course of decisions. According to their Honours
industrial disputes can only occur in an
industry in which capital and labour
co-operate to provide goods or services for the community. Their Honours
arrived at this conclusion,
not because they thought that this was the popular
meaning of the expression in Australia, but because it reflected the criteria
of industrial disputes as expounded by the contemporary English "historians of
industrial movements" (1919) 26 CLR, at p 554 . Isaacs
and Rich JJ. then said
(37):
"Industrial disputes occur when, in relation to operations in which
capital and labour are contributed in co-operation for
the satisfaction of
human wants or desires, those engaged in cooperation dispute as to the
basis to be observed, by the parties
engaged, respecting either a share of
the product or any other terms and conditions of their co-operation."
They went on to say (1919) 26 CLR, at p 555 :
"It implies that 'industry', to lead to an industrial dispute, is not, as
the claimant contends, merely industry in the abstract
sense, as if it
alone effected the result, but it must be acting and be considered in
association with its co-operator 'capital'
in some form so that the result
is, in a sense, the outcome of their combined efforts." (at p308)
19. Thus, notwithstanding Isaacs J.'s comment in Jumbunna, the approach of
Isaacs and Rich JJ. necessarily involved a search for
a dispute in an
industry. In this way the constitutional provision was brought into line with
the Act in its amended form. (at p308)
20. The doctrine of intergovernmental immunities was overthrown in the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 where it was decided that a dispute between an organization of employees and a Minister of the Crown for a State acting under the authority of a State statute as an employer in the conduct of a trading enterprise was an "industrial dispute" within s. 51(xxxv). The Railway Servants' Case (1906) 4 CLR 488 was overruled. The new development opened the way to the exercise by the Arbitration Court of jurisdiction over disputes between State instrumentalities and their servants: see, e.g. Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 2) (1920) 28 CLR 436 . (at p308)
21. Australian Insurance Staffs' Federation v. Accident Underwriters' Association ("the Insurance Staffs' Case"); Bank Officials' Association v. Bank of Australasia [1923] HCA 61; (1923) 33 CLR 517 presented a question as to the scope of the expression "industrial disputes" free from any complication arising from employment by the States or their authorities. The Court held, by majority, that a dispute between employers who carried on the business of banking or the business of insurance and their employees engaged in that business about the wages to be paid and the conditions of employment to be observed was an "industrial dispute" within s. 51(xxxv) on the ground that banking and insurance is incidental to industry. Isaacs and Rich JJ. reiterated and applied the notion of "industrial dispute" which they had expressed in the Municipalities' Case. Higgins J. held to the broad view which he had adopted earlier. Powers J. considered that the term "industrial disputes" did include disputes between employers and employees about wages and conditions of work in any "undertaking, business or industry", and not only in an "industry" in the narrowest meaning of the word (1923) 33 CLR, at p 535 . And Starke J. thought that the power extended over the whole area of industrial service (1923) 33 CLR, at p 537 . Knox C.J. and Gavan Duffy J. favoured a very limited interpretation of the power, that enunciated by Gavan Duffy J. in the Municipalities' Case (1919) 26 CLR, at p 584 , which limited the expression to disputes between employers and employees with respect to remuneration or matters affecting the performance of their duties "in an undertaking or undertakings carried on for the purpose of gain and wholly or mainly by means of manual labour". (at p309)
22. The limits of the power, according to the interpretations which began to find favour in the Municipalities' Case, were revealed in Federated State School Teachers' Association of Australia v. Victoria ("the Schoolteachers' Case") [1929] HCA 11; (1929) 41 CLR 569 . The majority of the Court decided that State schoolteachers were not engaged in industry. Isaacs J. alone dissented, though adhering to the joint judgments in which he had participated in the Municipalities' Case and the Insurance Staffs' Case. (at p309)
23. The main judgment in the Schoolteachers' Case was that of Knox C.J., Gavan Duffy and Starke JJ. Rich J., who was also in the majority, delivered a separate judgment. The decision in the case was the first to involve a clear rejection of the wide views which had been expressed by members of the Court in Jumbunna. There is no indication in the majority judgment in the Schoolteachers' Case of any chain of reasoning which leads to that rejection. The closest approximation to a reason for rejecting the view that, in accordance with the ordinary meaning of the phrase, "industrial disputes" in s. 51(xxxv) "includes, at all events, a dispute between employer and employee as to their receiprocal rights and duties" (the Municipalities' Case (1919) 26 CLR, at p 575 , per Higgins J.) is the statement in the joint judgment of Knox C.J., Gavan Duffy and Starke JJ. (1929) 41 CLR, at p 574 that "the view that the sphere of industrialism is to be found in operations in which the relation of employer and employee subsists . . . cannot . . . be supported, for it ignores the use of the word 'industrial' in the composite expression 'industrial dispute' in the Constitution". (at p309)
24. That statement is plainly per incuriam in that the view which their Honours were rejecting, far from ignoring the word "industrial", relied upon the word to define the composite expression "industrial disputes" in the sphere of relations between employers and employees. (at p310)
25. It is evident from the judgments in the Professional Engineers' Case, particularly those of Dixon C.J. (1959) 107 CLR, at pp 235-237 and Taylor J. (1959) 107 CLR, at pp 258-261 , that their Honours regarded the judgments in the Schoolteachers' Case with rather less than complete satisfaction. And in more recent decisions members of this Court have indicated a willingness to reconsider a return to a broader interpretation of the constitutional power, more in line with that favoured by Griffith C.J. and O'Connor J. in Jumbunna (see Reg. v. Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37; (1975) 132 CLR 595, at pp 608-609 ; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [1977] HCA 70; (1977) 140 CLR 63, at pp 74, 79, 90 ; Reg. v. McMahon; Ex parte Darvall [1982] HCA 56; (1982) 151 CLR 57, at pp 60-61, 65-66, 71-72 ). (at p310)
26. The absence of a disclosed chain of reasoning leading to a rejection of the broader view is but one of several powerful reasons why we should now embark upon that reconsideration. Another is that the course of judicial exposition of s. 51(xxxv) has not resulted in a settled interpretation of the power. True it is that the judgments in the Professional Engineers' Case, proceeding from an acceptance of the correctness of the decision in the Schoolteachers' Case, reflected a view of s. 51(xxxv) which was uniform, or substantially so. In this respect the judgments of McTiernan, Taylor and Windeyer JJ. did not differ materially from that of Dixon C.J., with whom Fullagar and Kitto JJ. agreed. Dixon C.J. (1959) 107 CLR, at p 234 spoke of a dispute between a State and its land tax officers as standing "outside the whole world of productive industry and organized business". Later he referred again to disputes "in production, business or other organized work" (1959) 107 CLR, at p 235 . But it is not suggested that his Honour intended to erect these generalized expressions into a firm principle. In the Professional Engineers' Case the Court was not asked to reconsider the Schoolteachers' Case or to discard it in favour of the Jumbunna interpretation. Indeed, the correctness of the Schoolteachers' Case was common ground between the parties, each side seeking to use the decision to its advantage. In the result the Court was able to distinguish the professional engineers from the schoolteachers. As has so often been the case, the judgments were directed to the resolution of a particular facet of an old problem - a dispute between a State and its engineers. It has, of course, been explicitly or implicitly acknowledged from time to time that the Schoolteachers' Case is not consistent with the Jumbunna interpretation in all its generality (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria ("the State Public Servants' Case") [1942] HCA 39; (1942) 66 CLR 488 ; Pitfield v. Franki [1970] HCA 37; [1970] HCA 37; (1970) 123 CLR 448, at p 455 ; Holmes (1977) 140 CLR, at p 74 ). For the most part these cases, like the Schoolteachers' Case and the Professional Engineers' Case, related to a dispute between a State or State authority and its servants with the attendant difficulties which disputes of this kind bring in their train. In that area the Schoolteachers' Case has occupied a central place in the reasoning in a number of cases since it was decided. However, in our opinion that is not a sound reason for refusing to re-examine the basic interpretation of the constitutional power. (at p311)
27. We have already noted that before the Engineers' Case the scope and extent of the power was a secondary question, subsidiary in importance to the doctrine of intergovernmental immunity. Since the Engineers' Case the interpretation of s. 51(xxxv) has been dominated by the continuing problems which have arisen in association with disputes between States and State authorities and their employees. The rejection of the doctrine of intergovernmental immunity did not result in the acceptance of the broad interpretation which had previously prevailed in Jumbunna. Instead, it resulted in an apparent contraction of the power as members of the Court based their exclusion of disputes involving certain categories of State employees on different interpretations of the term "industrial disputes". The interaction between the abandonment of the doctrine and the contraction of the power is best seen in the Municipalities' Case and Isaacs J.'s change of heart between Jumbunna and the Municipalities' Case. (at p311)
28. The final factor, yet to be elaborated, which calls for reconsideration is the superior attraction, both in point of legal reasoning and in consequence, of the broad interpretation of the provision over the later versions, especially that of Isaacs and Rich JJ. in the Municipalities' Case and the Insurance Staffs' Case. In this respect, a remarkable feature of the judgments in the two last mentioned cases - as in the Schoolteachers' Case - is the absence of discussion of the Jumbunna interpretation and of the reasons for departing from it by those members of the Court who like Isaacs and Rich JJ. expressed a different and, in some respects, a narrower view. (at p312)
29. The correct approach to the construction of the expression "industrial disputes" in s. 51(xxxv) was, we think, expressed by Higgins J. in the Municipalities' Case (1919) 26 CLR, at pp 572-575 and the Insurance Staffs' Case (1923) 33 CLR, at pp 528-530 , reflecting the view earlier expressed by O'Connor J. in Jumbunna shorn of its association with the doctrine of intergovernmental immunities. The words are not a technical or legal expression. They have to be given their popular meaning - what they convey to the man in the street. And that is essentially a question of fact. That the expression is "industrial disputes", not "disputes in an industry", as Higgins J. noted, makes quite inexplicable the emphasis given in the later cases to limitations on the power derived from the meaning of the word "industry". Perhaps this development is to be explained, though not justified, by the amendment made to the Act in 1911 which defined the word "industry" in terms of the undertaking of the employer and the calling, service, employment or industrial occupation of the employee. It may be that the framework of the Act played some part in shaping the interpretation of the constitutional power, although as early as Jumbunna Isaacs J., who with Rich J. was to base his later interpretation on the concepts of "industry" and "industrialism", had been quick to perceive that the Act might possibly contemplate a narrower notion of "industrial disputes" than that envisaged by s. 51(xxxv). An alternative explanation is that it was apprehended that, unless some such limitation based on "industry" was introduced, the category of "industrial disputes" might be unlimited. If there was such an apprehension, it was a misapprehension. The content of the popular understanding of the composite expression sets the limits on the category. (at p312)
30. It is, we think, beyond question that the popular meaning of "industrial disputes" includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective "industrial" imports some restriction which confines the constitutional conception of "industrial disputes" to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern. (at p313)
31. It is also unnecessary to consider whether or not disputes between a State or a State authority and employees engaged in the administrative services of the State are capable of falling within the constitutional conception. It has been generally accepted, notwithstanding the Engineers' Case, that the power conferred by s. 51(xxxv) is inapplicable to the administrative services of the States (see the Professional Engineers' Case (1959) 107 CLR, at p 233 ). If the reasons hitherto given for reaching that conclusion are no longer fully acceptable, it may be that the conclusion itself finds support in the prefatory words of s. 51 where the power is made "subject to this Constitution" (cf. Holmes (1977) 140 CLR, at p 90 ). The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa). The nature of those limitations was discussed in Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31, esp at pp 55-60, 66, 70-75, 82-83 , Victoria v. The Commonwealth ("the Pay-roll Tax Case") [1971] HCA 16; (1971) 122 CLR 353, esp at pp 386-393, 402-403, 406-411, 417-424 , and the other cases there cited. If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid, but as Walsh J. pointed out in the Pay-roll Tax Case (1977) 140 CLR, at p 410 , the limitations have not been completely and precisely formulated and for present purposes the question need not be further examined. (at p313)
32. What we have said accords with the view of Higgins J. and that of O'Connor J. It is substantially similar to that of Griffith C.J., though it discards his emphasis on a dispute which involves a large number of employees. Their Honours in Jumbunna were able to speak with authority of the popular meaning of the expression in 1900. Indeed, in the later cases, those who joined issue with the Jumbunna interpretation did not deny that it reflected the popular meaning of the expression. Instead, as we have seen, they introduced limitations derived from the word "industry". The artificial consequence was that disputes between employees and financial corporations, e.g., banks, insurance companies and credit unions, though popularly recognized as "industrial disputes", were so classified only because the activities of the employers were held to be ancillary or incidental to industry in a very narrow sense. (at p314)
33. The conclusion which we have reached is in conformity with the accepted
canons of constitutional construction. In Jumbunna,
speaking of the
construction of a power to legislate, O'Connor J. said (1908) 6 CLR, at pp
367-368 :
". . . it must always be remembered that we are interpreting a
Constitution broad and general in its terms, intended to apply to the
varying conditions which the development of our community must involve.
For that reason, where the question is whether the Constitution has used
an expression in the wider or in the narrower sense, the Court should, in
my opinion, always lean to the broader
interpretation unless there is
something in the context or in the rest of the Constitution to indicate
that the narrower interpretation will best carry out its object and
purpose."
(See also Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at pp 332-333 ;
Worthing v. Rowell and Muston Pty. Ltd.
[1970] HCA 19; (1970) 123
CLR 89, at p 96 ; Koowarta
v. Bjelke-Petersen Ante, pp. 227-228. .) The operation which our construction
accords to the
power enables
its exercise to fulfil the high object for which
it was unquestionably designed - the prevention and
settlement by
conciliation
and
arbitration of industrial disputes which could not be remedied by any
action taken by a single State
or its tribunals.
(at p314)
34. Accordingly, we conclude that the dispute between the prosecutor and the Committees about the terms and conditions of employment of project officers is an "industrial dispute" within s. 51(xxxv). (at p314)
35. The question then is whether it is a dispute to which the Act applies.
The Act authorizes the Commission to make an award in
settlement of an
industrial dispute. The expression "Industrial dispute" is defined by s. 4(1)
as meaning:
"(a) a dispute (including a threatened, impending or probable dispute)
as to industrial matters which extends beyond the
limits of any one State;
and
(b) a situation which is likely to give rise to a dispute as to industrial matters which so extends,
and includes -
(c) such a dispute in relation to employment in an industry carried on by, or under the control of, a State or an authority of a State;
(d) a dispute in relation to employment in an industry carried on by, or under the control of, the Commonwealth or an authority of the Commonwealth, whether or not the dispute extends beyond the limits of any one State;
. . . . " (at p314)
36. The expression "Industrial matters" is defined by the same subsection as
meaning:
". . . all matters pertaining to the relations of employers and employees
and, without limiting the generality of the foregoing includes -This expression needs to be read in conjunction with the definitions of "Employee" and "Employer" which speak respectively of "any employee in any industry" and "any employer in any industry". (at p315)
(a) all matters or things affecting or relating to work done or to be done;
(b) the privileges, rights and duties of employers and employees;
(c) the wages, allowances and remuneration of persons employed or to be employed;
(d) the piece-work, contract or other reward paid or to be paid in respect of employment;
. . .
(h) the mode, terms and conditions of employment;
. . .
and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole . . ."
37. The inclusive definition of "Industry" then creates a problem because it includes: (a) any business, trade, manufacture, undertaking, or calling of employers; (b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; and (c) a branch of an industry and a group of industries . . ." (at p315)
38. The problem is not merely one of circularity, as Latham C.J. acknowledged in the State Public Servants' Case (1942) 66 CLR, at p 500 . If it were it might be readily solved by not reading "employers" and "employees" in the statutory definition of "industry" in their defined sense. The problem has an extra dimension in that the statutory concept of "industrial dispute" appears to contemplate disputes between parties about matters pertaining to the relation of employers in any industry and employees in any industry as defined, thereby introducing an element which in our view is not an essential element in the constitutional concept of "industrial dispute". However, we agree with Dixon C.J. in the Professional Engineers' Case (1959) 107 CLR, at p 243 that, notwithstanding what Latham C.J. said in the State Public Servants' Case, the circular method of definition does not narrow or exclude the application of the defition of "industry" contained in the three paragraphs (a), (b) and (c). (at p315)
39. Each item in the three paragraphs is an industry, so that an employer and an employee will be "in any industry" if the employer is in an "industry" specified in par. (a) and employs the employee therein, or if the employee is in an "industry" defined in par. (b) and is employed as such by an employer, or if the employer employs the employee or the employee is employed by the employer in an "industry" defined in par. (c). It is not essential that the employers and employees should be found independently to be in a defined "industry". Paragraphs (a) and (b) reflect the fact that there are groupings of employers who employ different classes of employees and groupings of employees who are employed by different classes of employers. There is or may be such a community of interest among the members of those respective groupings that a dispute (or a threatened, impending or probable dispute) between the members of a grouping and their employees or employers, as the case may be, as to an industrial matter is an appropriate subject for prevention or settlement by conciliation or arbitration. (at p316)
40. In the present case, the project officers employed by the Committees are in the same "calling" of employees, and their "industry" embraces both themselves and their employers. It may be that, as the respondent submitted, the Committees' activities constitute an "undertaking" but we do not find it necessary to determine this alternative or cumulative foundation for the Commission's jurisdiction. It is sufficient that one industry is found to cover either employers or employees and thereby to bring into that "industry" their respective employees or employers. (at p316)
41. For the foregoing reasons the order nisi for prohibition and mandamus should be made absolute. (at p316)
ORDER
Order nisi for writs of prohibition and mandamus made absolute.
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