R v Aird; Ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654 (9 November 1973)

HIGH COURT OF AUSTRALIA

THE QUEEN v. AIRD; Ex parte AUSTRALIAN WORKERS' UNION. [1973] HCA 53; (1973) 129 CLR 654

Industrial Law (Cth)

High Court of Australia.
Barwick C.J.(1), McTiernan(2), Menzies(3), Gibbs(4) and Stephen(5) JJ.

CATCHWORDS

Industrial Law (Cth) - Conciliation and Arbitration - Registered organization - Eligibility for membership - Operators employed by ready-mixed concrete suppliers to produce concrete at batching plants - Whether employed in or in connexion with the manufacture of "cement and cement articles" - Whether employed in "all kinds of general labour" - Jurisdiction - Mandamus - Locus standi - Conciliation and Arbitration Act 1904-1972 (Cth), s. 24.

HEARING

Melbourne, 1973, October 11, 12;
Sydney, 1973, November 9. 9:11:1973
MANDAMUS.

DECISION

November 9.
The following written judgments were delivered:-
BARWICK C.J. The applicant for a writ of mandamus addressed to a Deputy Australian Workers' Union, an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1972 ("the Act"). It claims to be entitled to represent in industrial matters persons who do labouring work in connexion with the production of ready-mixed concrete at what are called batching plants, not upon any building site. We have had the operations of such a plant described to us. It appears that the operation of the plant involves employees in three broad categories which were fully described in Ex. "F" in the proceedings before the Commission. The applicant has admitted employees in each of these categories to its membership and has sought to create an industrial dispute with their employers by service of a log of claims. There being no favourable response to the log of claims the applicant notified the Industrial Registrar pursuant to s. 25 of the Act of the existence of an industrial dispute said to arise from the service of a letter of demand by the applicant, the log of claims and the failure of the employers served to accede to the claims. Upon hearing before the Commission, at which the Australian Building Construction Employees' and Builders' Labourers' Federation ("the Federation") was allowed to intervene, the Commission held that it lacked jurisdiction to hear the matter referred to it, there being no dispute as the applicant, upon its interpretation of the eligibility clause of the applicant's constitution, was not entitled to raise a dispute on behalf of those engaged in the manufacture of ready-mixed concrete at the batching plants. (at p656)

2. Upon the motion to make absolute the rule nisi for mandamus granted on 10th August 1973, counsel for the Federation appeared to show cause against the rule, claiming a sufficient interest in his client to warrant that course. This Court decided in Re Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77 , that the Federation could not represent the employees working at the batching plants. But, though his client is presently unable to enrol such employees as members of its organization, counsel submitted that the granting of the motion to make absolute the rule nisi would preclude his client from applying for an enlargement of its own eligibility for membership, or at least would render success in any such application much less likely. Hence the interest to show cause against the grant of the writ of mandamus. I have come to the conclusion that this submission should be accepted and that the Federation should be regarded as having sufficient interest within the practice as to the hearing of an application for a writ of mandamus to be admitted to show cause against the grant of the writ. In addition, the order nisi to show cause was directed to be served and it was served upon the Federation. It would seem that, in all these circumstances, the Federation should be so far treated as a party to the motion to make the rule absolute as to be both liable for and entitled to costs, according to the failure or success of its submissions: see generally Halsbury's Laws of England, 3rd ed., vol. 2, par. 140, p. 80. (at p657)

3. The substantial question in the case is whether ready-mixed concrete is a cement article within the meaning of the eligibility for membership clause of the applicant's constitution. That clause has been the subject of much amendment since it was first drawn in 1906. It now consists of a great number of descriptions, economically expressed, of industries and callings. The description with which we are principally concerned at present was added in 1928. But the description "all kinds of general labour" has been part of the clause since the inception of the applicant. (at p657)

4. I should first of all say that I find no assistance in the interpretation of the descriptions on which the applicant relies from the presence of the terms of any of the other descriptions included in the clause. Counsel for the Federation sought to find some support for a restricted meaning of the relevant description by calling attention to a description in the eligibility clause of an industry in the following terms "The production or manufacture of aluminium for use as a raw material in the manufacture of articles". But, having considered the submission, I gain nothing from that other description. It is perhaps the only other description which refers to articles: but it does so in a description of a quite different structure to the description with which we are here concerned. (at p657)

5. The full text of the descriptions on which the applicant relies is: "The industry of the employment of every bona fide worker, male or female, engaged in manual or mental labour in or in connexion with any of the following industries or callings, namely ... all kinds of general labour, ... the manufacture of cement and cement and fibrolite articles". (at p658)

6. Before considering the substantive question I should advert to an argument which I understand to have been advanced, namely, that in any case the matter was not appropriate for the grant of mandamus: that in reality the applicant was seeking to appeal to this Court from the Commission's construction of the applicant's eligibility clause, no such appeal having been given by the relevant legislation. But, in my opinion, this is not a proper analysis of the circumstances of the case. The Act lays on the Commission the duty to determine industrial disputes of which it is made aware: ss. 25 and 34. Section 25 provides for the notification to a Commissioner or Registrar of the existence of a dispute. Of course, the Commission is bound to satisfy itself that there is an industrial dispute before it and the ambit of that dispute before essaying its settlement: but clearly the Commission cannot conclusively determine whether or not such a dispute exists or its ambit if there is in fact a relevant dispute. In the long run it is for this Court to decide these facts because constitutional considerations are involved. If the Commissioner forms the opinion contrary to fact that no industrial dispute within the scope of the Act exists and for that reason declines jurisdiction, quite clearly, in my opinion, he can be compelled by mandamus to exercise his jurisdiction as in duty bound. Of course, mandamus being a discretionary remedy, whether or not a writ is granted will otherwise depend on the circumstances, particularly whether or not other remedies are available. (at p658)

7. In the present case, the notification under s. 25 by the applicant came before a Deputy President who, after hearing argument, declined jurisdiction because in his opinion no industrial dispute existed as claimed by the applicant in its notification. His reason for that opinion was that the applicant was not competent to represent the employees in the ready-mixed concrete batching plants and thus not able to create a dispute as to their wages and conditions. This opinion, in turn, depended on his view of the proper meaning of the eligibility clause of the applicant. But the only "decision" given was that the Commissioner had no jurisdiction. I do not pause to consider whether such a "decision" is a judgment at all in any proper sense of the word or whether it is an award or decision within the meaning of the Act. But certainly, in my opinion, it is not an award within s. 35 (2) in respect of which an appeal lies to the Commission constituted as provided in s. 35 (1) nor was it in my opinion a decision by way of a finding as to the existence of an industrial dispute or by way of a finding as to the parties to any industrial dispute within the scope of that section. (at p659)

8. As otherwise I see no circumstance which should influence the discretion to grant a mandamus in this case, it should not be refused because another suitable remedy is available. If in truth an industrial dispute within the meaning of the Act did result from the service and non-acceptance of the log and its claims, the Deputy President was under a duty which he has declined to perform. In such event, quite clearly, in my opinion, the remedy of mandamus is appropriate and, in the circumstances of this case ought, in that event, to be granted. See, generally, R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres [1949] HCA 33; (1949) 78 CLR 389 . In my opinion, it is not rightly said that to grant that writ is in reality to entertain an appeal from the Deputy President's opinion as to the meaning of the eligibility clause. (at p659)

9. I now turn to consider the meaning of the eligibility clause in relation to the manufacture in the batching plants of ready-mixed concrete. This is a legal question to be solved by legal considerations But those considerations will, in relation to the present question, include any industrial meaning or usage of the words of the clause to be construed. As with all construction, the nature of the instrument in which the words appear and the purposes the instrument is evidently intended to serve or effect must be kept in mind. In this respect, it is proper, in my opinion, in the present case to acknowledge that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. The purpose of the clause is to define, in brief terms, industries or callings relevant to the representative character of the union. But, granted this generosity of approach, the question of the meaning of the words used remains a legal question. (at p659)

10. So far as the description "all kinds of general labour" in the clause is concerned, I agree with the view expressed in In Re United Labourers' Protective Society of New South Wales (1932) 31 IAR (NSW) 371, at p 375 by the Industrial Commission of New South Wales (Browne P., Cantor and Webb JJ.) that the word "general" in such a context as the present clause is a word of limitation so that only those who are employed in "general labour" are included in the description. I am unable to conclude that the employees referred to in this case are included in the description "employees in all kinds of general labour". (at p660)

11. It is common ground that the making of ready-mixed concrete is not the manufacture of cement. It is also common ground that nothing may be made of cement alone. Concrete, not always distinguished by that name but often spoken of as cement, both as a noun and as an adjective, consists of cement, sand and metal particles and water. Of these ingredients, all being in general necessary, it is the cement which gives to the mixture its characteristic, that is to say, its capacity to take and retain a shape, which according to the proportions of the ingredients in the concrete will have more or less strength to resist forces which would break, distort or destroy that shape. Thus, to describe concrete in terms of its dominant constituent would require the use of cement as an adjective. It would, in my opinion, be quite proper both in general and in connexion with an eligibility clause such as that now under consideration to speak of ready-mixed concrete as a "cement product". But the words of the clause are not "cement products" but "cement articles". An article, in the ordinary usage of language, is something which has a definite shape or form. I agree with the opinion in this respect of Devlin L.J. in Longhurst v. Guildford, Godalming and District Water Board (1961) 1 QB 408, at p 418 , when he said "... an 'article' is something that is articulated, that is, separated from an amorphous mass and given shape and form. I do not think that anything can be called an 'article', either in strict terminology or in ordinary language, unless it has shape and form ... But I do not agree that all commodities, in all states, are 'articles'". His Lordship instanced water, air, gas, fire and grain as commodities which, not being given specific shape, are not in unconfined form articles. I do not understand their Lordships in the subsequent appeal in that case to have differed from this general sense of the word "article". Of course, a specific context may require a different conclusion. It is said to "be capable of meaning anything corporeal" (Lord Reid in Longhurst v. Guildford, Godalming and District Water Board (1963) AC 265, at p 273 . But that is not to say that in its ordinary construction it includes all things corporeal in all their manifestations. That case is a good example of a word in a particular context being given a meaning of which it is capable but with which it is not ordinarily used, a circumstance which, in my opinion, explains the reversal of the primary judge's judgment. See also Ferens v. O'Brien (1883) 11 QBD 21 and Cox v. S. Cutler & Sons Ltd. and Hampton Court Gas Co. (1948) 2 All ER 665 . Whilst it is true that in a particular context what is no more than a commodity may be regarded as an article, in general, in my opinion, all commodities are not articles. (at p661)

12. In the present case, the context is, as I have said, an eligibility clause designed to determine the range of the membership of a union and thus to limit, no doubt within a wide-ranging perimeter, the representative capacity of the union. To speak in that connexion of the manufacture of "cement articles" is at least to comprehend the creation by the use of concrete of things which undoubtedly are articles, e.g., paving slabs, garden seats or tubs, poles, columns and ornamental figures. (at p661)

13. I conclude that there is nothing in the fact that the expression "cement articles" is found in the eligibility clause which provides a context requiring other than the ordinary meaning of the word "article" to be assigned in the expression "cement articles". Further, it seems to me that if it had been intended by union officials to include within the eligibility labourers who do no more than participate in the making of concrete in its plastic state, such a word as "products", a word available both in ordinary parlance and as I think also in industry, would have been used rather than "article". No doubt a labourer mixing or assisting the mixing of concrete so that it might be used immediately for the making of an article such as I have instanced could be said to be employed in or in connexion with the manufacture of concrete articles. But in the present instance the concrete is not prepared for any such purpose. It is being made as itself a commodity for delivery to those engaged in some form of building or construction for disposal by them in a variety of ways, not all of which will necessarily result in the production of an article. (at p661)

14. I have reached the conclusion that labourers engaged in or in connexion with the making at a batching plant of ready-mixed concrete are not employed in or in connexion with the manufacture of cement articles. Ready-mixed concrete in its plastic state, though clearly a commodity and a concrete product, is not, in my opinion, a cement article or indeed an article at all. There was therefore in fact no industrial dispute within the meaning of the Act before the Deputy President. (at p661)

15. For that reason, I would discharge the order nisi for mandamus. (at p661)

McTIERNAN J. This is an application for an order pursuant to s. 75 of the Constitution that a writ of mandamus addressed to a Deputy President of the Conciliation and Arbitration Commission be issued out of the High Court. The applicant is The Australian Workers' Union, an organization registered under the Conciliation and Arbitration Act 1904-1972 (Cth). The respondents are a Deputy President of the Commission and employers whose industry is the operation of batching plants for the manufacture of ready-mixed concrete. The employees in the industry include batch plant operators, mechanical equipment operators and materials handlers. The Union prepared a log of claims applying to employees of each of these classes and served it on employers in the industry. No employer acceded to any of the claims. A situation arose to which s. 25 of the Act applied. In pursuance of this section the Union filed a notification of an industrial dispute in the Registry of the Commission. The notification was accompanied by a copy of the log of claims and contained a statement to the effect that the employers had not made any response to it. The number of the matter in the Registry is C No. 1700 of 1973. This is the matter to which the order nisi refers. Under procedure provided by s. 25 it became the duty of the Deputy President to "endeavour to prevent or settle the dispute by arbitration". By s. 22 (1), Presidential Members and Arbitration Commissioners are invested with the powers of the Commission with respect to arbitration. Section 24 says that where proceedings in relation to an industrial dispute or an alleged industrial dispute come before the Commission, however constituted, the Commission shall determine whether there is an industrial dispute. (at p662)

2. When the matter came on for hearing, an organization registered under the Act, called The Australian Building Construction Employees' and Builders' Labourers' Federation, applied to the Commission for leave to intervene in the matter. The Deputy President granted the application (s. 36 of the Act). The registered name of the organization was formerly The Builders' Labourers' Federation: see Re Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77 . (at p662)

3. Counsel for the organization called in question the capacity under the Act of The Australian Workers' Union to take any steps in the Commission to obtain an award covering the classes of employees in the ready-mixed concrete industry on whose behalf the Union served the log of claims on the respondent employers. The learned Deputy President gave a ruling, adverse to The Australian Workers' Union, on the question raised by the intervener. The decision is as follows:

"It was common ground between the objecting union and the
A.W.U. that such coverage is to be found (in effect) if at all
within r. 6 (Full Membership) of the A.W.U. rules, in two
phrases 'and all kinds of general labour' and 'the manufacture
of cement and cement articles'.
As to the first phrase I am prepared to assume that even if
treated as a separate identification of an industry or calling
(and there appear to be inherent difficulties in that approach)
the words are themselves words of limitation excluding some
labour and in the present instance at least the top classification
of batch plant operator having regard to the higher skill and
perhaps supervisory duties involved.
Subject to further argument it would appear to be inappropriate
to cover anybody by award if all classifications cannot
be covered.
In argument both parties appeared to treat the second
phrase as mere apt to the general coverage of an industry such
as the one in question if the words were capable of doing so.
In a previous proceeding I have decided that the words
cement articles' can cover concrete articles. The material
and argument that was presented in that matter have been
treated as part of these proceedings. As well the agreed facts
which were presented to the Commission and before the High
Court in subsequent prohibition proceedings describing the
nature and history of the pre-mixed concrete industry have
been relied upon by the parties in these proceedings.
'Cement articles' on all that material seems appropriate to
embrace as well concrete articles as there seems to be a long
history of the interchangeable use of the words 'concrete' or
'cement' and as concrete articles acquire their final form just
like cement articles by the use of cement in combination with
additives such as sand, aggregate etc.
While I have been prepared to give this extended meaning
to the words 'cement articles' so as to embrace concrete articles
in their final form I am unable to accept the view that ready-mixed
concrete or cement in the batching process which is
used to make or manufacture cement or concrete articles in
their final form is covered by the phrase 'the manufacture of
cement and cement articles'.
In essence the word 'cement' or as I have extended it to
concrete articles refers to the making of something out of
cement or concrete and not the making of cement or concrete
itself.
I find therefore that the Commission has no jurisdiction in
this matter as the A.W.U. constitution renders it impossible
for the union to create a dispute by the demands which have
been made on employers in respect of certain employees. As
to the first phrase if applicable to the issue, this decision will
affect some employees only, as to the latter, all." (at p663)

4. The only ground on which counsel for the Australian Workers' Union argued that the order nisi for mandamus should be made absolute, was that upon the true construction of each of the phrases discussed by the Deputy President, in giving his ruling, an employee whose trade is that of a batch plant operator, mechanical equipment operator or materials handler is eligible for membership of the Australian Workers' Union. This ground does not in my opinion involve any question arising under the Constitution. In my opinion the ruling of the Deputy President as to the application of each of the phrases is correct. (at p664)

5. The Australian Building Construction Employees' and Builders' Labourers' Federation was served by the Australian Workers' Union with the order nisi and was heard on the motion to make the order nisi absolute. It opposed the motion. (at p664)

6. I would assume that the Deputy President has knowledge of the degree of skill a worker needs to possess to be an efficient batch plant operator, and he used the knowledge in deciding that such a worker does not come within the scope of the words "all kinds of general labour". I see no reason for disagreeing with the Deputy President on this point. (at p664)

7. As regards the phrase, "and the manufacture of cement and cement articles", a contention was put forward in argument for the Australian Workers' Union, which I think is in accordance with established usage as to the application of the word "article". The contention was that "article" is applicable to a piece of ready-mixed concrete before it is moulded or shaped. However, to the best of my understanding of the import of the whole phrase, I do not think that the word "articles" can be read as applying to unshaped or shapeless portions of material. I agree with the conclusion of the Deputy President that the employees on whose behalf the Union served the log of claims are not engaged in "the manufacture of cement and cement articles". It follows that the Union has not the capacity to represent those employees in the matter identified as C No. 1700 of 1973 referred to in the order nisi. (at p664)

8. In the case of the employees covered by the phrase "and all kinds of general labour", namely, mechanical equipment operators and materials handlers, the Deputy President did not decline to exercise the powers with respect to arbitration conferred by the Act. (at p664)

9. It follows that the order nisi should be discharged. (at p664)

10. In the case of R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, at pp 242-243 , the following observations were made regarding the prerogative writ of mandamus:

"In the case of a tribunal, whether of a judicial or an administrative
nature, charged by law with the duty of ascertaining
or determining facts upon which rights depend, if it has undertaken
the inquiry and announced a conclusion, the prosecutor
who seeks a writ of mandamus must show that the ostensible
determination is not a real performance of the duty imposed
by law upon the tribunal. It may be shown that the members
of the tribunal have not applied themselves to the question
which the law prescribes, or that in purporting to decide it
they have in truth been actuated by extraneous considerations,
or that in some other respect they have so proceeded that the
determination is nugatory and void. But the prosecutor who
undertakes to establish that a tribunal has so acted ought not
to be permitted under colour of doing so to enter upon an
examination of the correctness of the tribunal's decision, or
of the sufficiency of the evidence supporting it, or of the
weight of the evidence against it, or of the regularity or
irregularity of the manner in which the tribunal has proceeded.
The correctness or incorrectness of the conclusion reached by
the tribunal is entirely beside the question whether a writ of
mandamus lies. It is also beside the question that the determination,
although not void, is yet one which, because of some
failure to proceed in the manner directed by law, or of some
collateral defect or impropriety, is liable to be quashed by a
Court which on appeal, certiorari, or other process is competent
to examine it (see per Channell J., Reg. v. Nicholson
(1899) 2 QB 455, at p 465 )." (at p665)

11. If the Commission had arrived at an incorrect conclusion on the question of the interpretation of the two phrases in the rules of the Australian Workers' Union it would not necessarily follow that mandamus should go. In the work on Crown Office Practice by Short and Mellor, 2nd ed., p. 199, it is said that "mandamus is only used where the inferior tribunal has declined jurisdiction, the object of mandamus being not to review or control the action of the inferior court but merely to compel it to act"; and, p. 200: "The question is not whether the tribunal has been right or wrong in the result of the exercise of their discretion, either upon the law or upon the facts, but whether it has in fact exercised it." (at p665)

12. The order nisi should in my opinion be discharged with costs. As the prosecutor served the intervener with the order nisi, the prosecutor should pay the intervener's costs of appearing by counsel in this Court. (at p665)

MENZIES J. I have read the reasons prepared by Stephen J. for concluding that the order nisi for mandamus should be discharged I agree with his conclusion and his reasons therefor. I do not think it appropriate to describe a mass of plastic concrete either upon the ground or in a container as a "cement article". That mass may, in due course, be made into a number of articles, e.g. concrete pipes, concrete blocks, concrete posts, which could, I think, be fairly described as cement articles. But as a formless agglomeration of cement, sand aggregate and water, it lacks the definition that is requisite for it to be aptly described as an article. Even less aptly would it be described as a cement article. (at p665)

GIBBS J. The question for decision in this case is whether the persons employed in or in connexion with the production of ready-mixed concrete, and in particular persons so employed as batch plant operators, mechanical equipment operators or materials handlers, are eligible to be members of the prosecutor, the Australian Workers' Union. If they are not eligible for membership, the prosecutor cannot represent them in an industrial dispute and the Commonwealth Conciliation and Arbitration Commission was right in holding that it had no jurisdiction to hear the claim which the prosecutor brought before it (see R. v. Portus; Ex parte Federated Clerks Union of Australia [1949] HCA 53; (1949) 79 CLR 428, at pp 432-433 , and Re Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, at p 93 ). (at p666)

2. The conditions of eligibility for membership of the Australian Workers' Union state that workers employed in any of the many and heterogeneous industries and callings therein listed shall be entitled to membership. However, there are only two classes of employees mentioned in the conditions of eligibility which, in the submission of the prosecutor, might be wide enough to include persons employed in or in connexion with the production of ready-mixed concrete. These are "all persons engaged in ... all kinds of general labour" and "all employees ... engaged in ... the manufacture of cement and cement articles and fibrolite articles". The former phrase was used at the end of the conditions of eligibility in their earliest form, apparently to comprehend labourers not employed in the industries therein specifically mentioned, but the conditions have been so extensively amended since that time that the original position and object of the phrase are of little assistance in determining its present meaning. The latter phrase, on which the prosecutor particularly relied, was inserted by amendment in 1928. (at p666)

3. Ready-mixed concrete is a mixture of cement, aggregate, water and, where necessary, additional materials, delivered to the purchaser in a plastic condition ready for use. Since no articles having shape and form can be made of cement alone, and since it appears that the words "cement" and "concrete" were in 1928, and still are, sometimes given the same meaning in popular usage, albeit incorrectly, it may well be that the words "cement articles" would include articles manufactured from concrete, such as concrete pipes. It was not, however, submitted that the production of concrete was "the manufacture of cement" within the meaning of the conditions of eligibility. The submission on behalf of the prosecutor was that a batch of ready-mixed concrete, in a plastic state, is a "concrete article". The word "article" in its relevant sense is used with the general meaning of "a separate thing", i.e. to refer to a particular material object, considered as separate and distinct from others of the same class. More particularly, and most appropriately in contexts such as the present, the word is used elliptically as referring to an article of trade, commerce, food, clothing, use or property and then has the meaning (as given in the Oxford English Dictionary) of "a commodity; a piece of goods or property, a chattel, a thing material". I myself agree with Devlin L.J., who in Longhurst v. Guildford, Godalming and District Water Board (1961) 1 QB 408, at p 418 said that in ordinary language "an 'article' is something that is articulated, that is, separated from an amorphous mass and given shape and form". However, there have been a number of authorities in which it has been held that commodities which lack shape and form are "articles" within the meaning of various statutory provisions. Thus preserved cream (Haigh v. Aerated Bread Company Ltd. (1916) 1 KB 878 ), gas (Cox v. S. Cutler & Sons Ltd. and Hampton Court Gas Co. (1948) 2 All ER 665 ), water (Longhurst v. Guildford, Godalming and District Water Board (1963) AC 265 ) and chemical liquid used for spraying weeds (Weedair (N.Z.) Ltd. v. Walker (1961) NZLR 153 ) have all been held to be "articles". In the light of these authorities I feel constrained to accept that in an appropriate context the word "article" is capable of referring to a material commodity in an amorphous mass. Assuming then that a batch of ready-mixed concrete might be described as an article, the question remains whether it may properly be described as a "cement article". The natural meaning of those words is "an article made of cement". The fact that the words "cement articles" may sometimes be used to describe concrete articles does not assist the argument of the prosecutor in the present case where the substance in question is not something made of concrete but concrete itself; it could not naturally be said that a batch of concrete is a "concrete article". The submission advanced on behalf of the prosecutor was that concrete is a "cement article" because cement is an essential ingredient in its manufacture. However, the words "cement article" in their natural meaning do not denote every article produced by the use of cement - they mean an article which is itself made of cement. Concrete cannot be said to be made of cement simply because cement forms one of the ingredients that has been combined with others, equally essential, to form, in mixture, a different substance, namely concrete. To sum up my opinion, a "cement article" is something made of cement and not something which consists of a mixture of various substances, including cement, and which has qualities which, although produced by the use of cement, are different from those of cement. Further, if the phrase is treated as equivalent to "concrete article", concrete in a plastic state cannot, except by an unjustified straining of language, be said to be an article made of concrete. I have endeavoured to analyse the reasons for my conclusion, which, however, simply comes to this: the words "cement articles" in their natural meaning do not denote batches of ready-mixed concrete and there is nothing in the context of the conditions of eligibility that would suggest that those words should be given an expanded meaning that would include ready-mixed concrete. (at p668)

4. The prosecutor also suggested that the words "all kinds of general labour" might include work in or in connexion with the manufacture of ready-mixed concrete. I do not doubt that persons engaged in making ready-mixed concrete may properly be described as labourers. However, the phrase "all kinds of general labour" does not mean all kinds of labour; if it bore that meaning it would have been unnecessary to list at length the other industries and callings that are mentioned in the conditions of eligibility. The word "general" does not expand, but restricts, the meaning of "labour". It would not be desirable to attempt any exhaustive definition of the words "general labour"; in the present case it is enough to say, speaking broadly, that the word "general" in that phrase is used in the sense of "not specialized". An employee whose work is separately classified on the basis of some special skill or experience necessary to perform it is not engaged in general labour. Even if it be the fact (as to which it is unnecessary to express an opinion) that the three classes of employees engaged in the making of ready-mixed concrete do not all require special skills of a very high order, it is apparent that they are engaged in occupations which are to some extent specialized and therefore would not properly be described as engaged in general labour. (at p668)

5. The decision of the present case depends entirely upon the proper construction of the conditions of eligibility and involves in no way a consideration of the merits of the demarcation dispute. In my opinion the Deputy President who constituted the Commission rightly held that upon the proper construction of the conditions of eligibility for membership of the Australian Workers' Union employees engaged in or in connexion with the production of ready-mixed concrete are not eligible to be members of that union. He therefore correctly declined jurisdiction. (at p668)

6. I would discharge the order nisi for mandamus. (at p669)

STEPHEN J. The prosecutor, by a letter of demand and log of claims served on employers in February 1973, made claims affecting three classifications of employees engaged "in or in connexion with the production of ready-mix concrete and/or cement". These claims were not acceded to, notification of an industrial dispute was given and in March 1973 the matter came on for hearing before a Deputy President of the Commonwealth Conciliation and Arbitration Commission, Mr. Justice Aird. Leave was granted at the hearing to the Australian Building Construction Employees' and Builders' Labourers' Federation to intervene and, after hearing argument, Mr. Justice Aird refrained from making any award, concluding that the Commission lacked jurisdiction; because of the terms of eligibility for membership of the prosecutor contained in its rules it was not able to represent the employees referred to in the log of claims and hence the service of that log was not capable of creating any industrial dispute. (at p669)

2. The prosecutor now seeks mandamus to compel Mr. Justice Aird to hear and determine the matter according to law and it is on the question of the interpretation of the conditions of eligibility for membership contained in the prosecutor's rules that this application turns. The prosecutor contends that his Honour adopted an erroneous interpretation of those conditions in concluding that the prosecutor was unable to represent employees concerned in the production of ready-mix concrete. (at p669)

3. The rules of the prosecutor have been the subject of frequent alteration over the years and the clause containing the conditions of eligibility for membership bears the mark of numerous amendments and additions. Both because of the length of that clause and of the irrelevance of much of it I refrain from setting it out in full. It open with the phrase:

"Subject to these Rules, every bona fide worker, male or
female, engaged in manual or mental labour in or in connexion
with any of the following industries or callings, namely:";

a great variety of industries and callings are then described, sometimes simply by the use of an appropriate adjective such as "agricultural", sometimes in a variety of other ways. One of such ways is to refer to "all persons" or to "all employees" engaged in particular activities, which are then described; it is upon two instances of this that the prosecutor relies, the two phrases in question being "all kinds of general labour" and "the manufacture of cement and cement articles and fibrolite articles". The contention that the Commission had jurisdiction to make the award sought is principally sought to be supported by the latter of these two phrases. (at p669)

4. In my opinion that contention fails. It does so, in my view, because the phrase "cement articles" is not apt to describe what the prosecutor has sought to include within it, namely the manufacture in its plastic form of the substance known as concrete. (at p670)

5. There were two matters of common ground involved in the argument before us; firstly that the mixing of ingredients which results in the production of the substance in plastic form known as concrete, comprising a mixture of cement, water and, usually, quantities of sand and aggregate, did not fall within the words "the manufacture of cement", those words being restricted to the manufacture of the substance which is one of the ingredients of concrete, the cement itself. It was also agreed that, at least at the time when the conditions of eligibility contained in the prosecutor's rules were first altered to include this reference to cement and concrete, and possibly even today, the word "cement" was, by common usage, applied to describe objects which should more accurately be described as composed of concrete; thus a building block consisting of appropriately mixed ingredients comprising cement, sand and aggregate, mixed together with the addition of water, might then, and may perhaps still, be referred to not only as a concrete building block but, alternatively, as a cement building block. It would seem that no item of manufacture capable of retaining any independent, self-supporting physical shape can be made of cement alone. To possess that quality water and, usually, aggregate of some sort, be it of large or small particle size, must be added. Accordingly, what might usually be referred to as cement articles will ordinarily include other ingredients. Those other ingredients, combined with cement, will commonly be such as to answer to the description of concrete. Hence cement articles will generally also be, and may more properly be described as, concrete articles. (at p670)

6. Assuming, then, that for present purposes the material produced by a ready-mix concrete plant may be described as cement or as concrete, can the words "cement articles", in their present context, be applied to that material in its plastic form before it is used to form the whole or some part of a solid structure? (at p670)

7. In my view the phrase as a whole, omitting for the moment the reference to "fibrolite articles", is concerned to refer to two different manufacturing activities, on the one hand the activity of manufacturing a building material, cement, and, on the other, the activity of manufacturing articles which, because cement is used as an ingredient in their composition to impart a characteristic quality, may appropriately be described by reference to that ingredient. "Cement articles", as used in this phrase, means products having a physical shape of their own and a distinct identity dependant upon that shape and does not include an amorphous mass of material not yet formed into such a product. (at p671)

8. It is the manufacture of articles that is spoken of in the phrase; in such a context I would regard the word "article" as not extending to natural substances, such as water or gases nor to manufactured materials, such as dough or wood pulp, all of which were referred to in argument. It is the absence in all of them of the quality of possessing physical shape or form which makes it appropriate to describe them as substances or materials and which distinguishes them from articles or tangible objects. This possession of shape provides, I think, the discrimen so far as common usage is concerned. (at p671)

9. No doubt, given an appropriate context, it is possible to include within the word "article", preceded by the descriptive noun "cement", any product the predominant characteristic of which is given to it by its cement ingredient; but to do so ignores common usage and involves the adoption of a highly artificial and inelegant interpretation; only if the context positively so requires should such a meaning be adopted. Here the context, with the contrast it offers between the manufacture of cement and the manufacture of cement articles, points, in my view, in quite the opposite direction. (at p671)

10. It is not, I think, irrelevant that the product of a ready-mix concrete plant is naturally spoken of as concrete in much the same way, no doubt, as other materials, such as sand, sugar, wheat or coal, are also referred to, the indefinite article "a" is omitted in the case of these words because what is referred to is a mass, a bulk quantity; when a particular entity composed of the material is referred to an appropriate noun is introduced, a lump of coal or sugar, a grain of sand, a sheaf of wheat. These will, of course, properly be described as articles but the former undifferentiated masses will not normally be so described; it is, of course, concrete in bulk that is the subject of manufacture in a ready-mix plant. (at p671)

11. The form of the conditions of eligibility clause is not such as to encourage reliance upon other parts of it as an aid to the interpretation of the phrase here in question; the clause is a piecemeal creation and no attempt seems to have been made to harmonize successive amendments with the existing wording into which they have been thrust. However such guidance as it does afford suggests the drawing of a clear distinction between materials and articles made from these materials; thus reference is made to the "manufacture of aluminium for use as a raw material in the manufacture of articles" and to "the supply of materials incidental to the manufacture of iron and steel". Without overlooking the fact that concrete is made by the use of cement, so that if it be described as an article this distinction will be preserved, the above instances of the use of language in the clause provides, I think, some additional support for the interpretation I have placed upon the words "concrete articles". (at p672)

12. It is for the above reasons that I reject the submission that "concrete articles" is apt to include reference to the plastic product of a ready-mix concrete plant. (at p672)

13. The other phrase relied upon by the prosecutor "all kinds of general labour" can, I think, prove of no real comfort to it. It originally formed the last five words of the prosecutor's conditions of eligibility clause, preceded by a reference to "general labour in connexion with" certain specified pursuits and, as was suggested to counsel in the course of argument, is quite inappropriate to describe the specialized activities of the three classifications of employees referred to in the prosecutor's present log of claims. (at p672)

14. In my opinion the learned Deputy President was correct in the view he took of the scope of the prosecutor's conditions of eligibility. I would discharge the order nisi. (at p672)

ORDER

Order nisi for mandamus discharged with costs the

prosecutor to pay the costs of the Australian
Building Construction Employees' and Builders'
Labourers' Federation.