R v Coldham; Ex parte Fitzsimons [1976] HCA 42; (1976) 137 CLR 153 (12 August 1976)

HIGH COURT OF AUSTRALIA

THE QUEEN v. COLDHAM; Ex parte FITZSIMONS [1976] HCA 42; (1976) 137 CLR 153

Industrial Law (Cth)

High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4), Jacobs(5) and Murphy(6) JJ.

CATCHWORDS

Industrial Law (Cth) - Conciliation and Arbitration - Flight Crew Officers Tribunal - Jurisdiction - Dispute - Industrial dispute - Interstate industrial dispute - Several airline operations conducted by airline company - Demand for preparation of single seniority list for flight crew officers engaged in all airline operations of company - Demands by individual officers in different States - Conciliation and Arbitration Act 1902 (Cth), as amended, ss. 88H ("dispute", "employer", "employment", "inter-State industrial dispute", "industrial matters"), 88U.

HEARING

Melbourne, 1976, May, 17-19.
Sydney, 1976, August 12. 12:8:1976
PROHIBITION.

DECISION

August 12.
The following written judgments were delivered: -
BARWICK C.J. In this application I have had the advantage of reading the conclusions and the reasons he expresses for arriving at them. In my opinion, the order nisi should be discharged. (at p156)

GIBBS J. I have reached the conclusion that the Flight Crew Officers Industrial Tribunal has jurisdiction under Pt IIIA of the Conciliation and Arbitration Act 1904 (Cth), as amended, to hear the dispute that has arisen in the present case. I have had the advantage of reading the judgments prepared by Stephen J. and by Mason J. and could not usefully add anything in support of that conclusion. For myself, I should prefer to express no final view on the question whether the employer carried on more than one airline "business" - that being immaterial to the result - but in other respects I am in general agreement with what my brethren have written. (at p156)

2. I would discharge the order nisi. (at p156)

STEPHEN J. Ansett Transport Industries (Operations) Pty. Ltd. ("A.T.I.O.") conducts regular scheduled airline services throughout Australia, not in its own name but instead under four business names. Its principal airline activity is conducted under the name of Ansett Airlines of Australia, which it uses on its interstate trunk routes and for a variety of other services. Under the names Ansett Airlines of New South Wales and Ansett Airlines of South Australia it conducts in those two States what are principally intrastate services; the name MacRobertson Miller Airline Services is used for services within Western Australia and extending into the Northern Territory. Although not entirely accurate, I shall refer to these last three groups of services as A.T.I.O.'s "intrastate airlines". (at p157)

2. A.T.I.O. is a large employer of flight crew officers, who may, for convenience, be called "pilots"; many of them are members of the Australian Federation of Air Pilots. In 1975 a dispute arose between A.T.I.O. and pilots employed by it concerning aspects of a proposed integrated seniority list of pilots. However that dispute originated, in its later stages the parties to it did not include the Federation; instead it came to be one between A.T.I.O. and such pilots employed by it as manned the services operated by the intrastate airlines; on 11th August 1975, negotiations having broken down, the Flight Crew Officers' Industrial Tribunal was notified of an industrial dispute concerning the manner of compiling this integrated seniority list. This notification was made by an individual claiming to represent, and no doubt in fact representing, all pilots of the intrastate airlines. (at p157)

3. The other pilots employed by A.T.I.O., who man the services conducted under the name of Ansett Airlines of Australia, took an active part in the proceedings before the Tribunal which followed notification of the dispute. They apparently regard their interests as directly opposed to those of the intrastate airline pilots and they contended before the Tribunal that it lacked jurisdiction to entertain the dispute for a variety of reasons concerned with the nature of the dispute and of the parties to it. The Tribunal nevertheless found that an industrial dispute extending to all States did exist between A.T.I.O. and all pilots employed by it with the intrastate airlines and that it related to the seniority listing of those pilots together with pilots employed by A.T.I.O. with Ansett Airlines of Australia. (at p157)

4. The proposed integrated seniority list which is the subject of the dispute would include all pilots employed by A.T.I.O., regardless of their engagement with a particular airline. Their order of seniority on that list would govern all matters of promotion, retrenchment and the like, the whole of the A.T.I.O. network of airlines being for this purpose treated as one. This would mark a substantial change in A.T.I.O. industrial policy which has long treated the staffing of each of its four airlines as a matter domestic to that particular airline, although for some time some form of integrated seniority list, employed for apparently quite limited purposes, has been in existence. This is a change to which the pilots who now fly with Ansett Airlines of Australia are apparently opposed and they, as prosecutors, now seek prohibition against the Tribunal, those pilots flying with the intrastate airlines also being respondents. (at p157)

5. I have already described A.T.I.O. as the employer of all pilots in each of the four airlines. There is no doubt that as a matter of general law this is the fact, however much it may have been obscured by the use of different business names and by the language used in the Airline Pilots' Agreement 1974, an agreement between the Federation and the four airlines as to conditions of employment and which refers to each airline as a separate employer. The dispute concerning an integrated seniority list is one relating to matters affecting the employees of one legal entity, A.T.I.O., which to date has chosen to conduct its activities in four more or less separate divisions. (at p158)

6. The Tribunal concluded that it had jurisdiction because the dispute was an interstate industrial dispute within s. 88U (1) (c). In challenging that conclusion the prosecutors rely principally upon the ground that even if only one employer (using that term in its ordinary meaning) is involved, a concession that they do not readily make but which is to my view irresistible, nevertheless there are here four separate businesses, the pilots being employed in one or other of those distinct businesses. This, it is said, assumes special significance because of the definition of "employer" in s. 88H:

"'employer' means a person (including an authority of the
Commonwealth) carrying on a business in the course of
which the person employs flight crew officers, not being a
business the principal place of control of which is outside
Australia".

It is contended that A.T.I.O., in the context of each distinct business in the course of which pilots are employed, is to be treated, for the purposes of Pt IIIA of the Act, as a separate employer. It is then said that a dispute about an integrated seniority list affecting the future prospects of pilots not confined to the particular business in which they are employed but extending also to three other separate businesses is not an interstate industrial dispute within Pt IIIA because it is not a dispute "as to industrial matters", a term defined in s. 88H as follows:

"'industrial matters' means all matters pertaining to the
remuneration or other terms or conditions of service or
employment of, or affecting or relating to work done or to be
done by, flight crew officers employed or to be employed by
employers." (at p158)

7. Not much turns, I think, upon this definition; its reference to matters "affecting or relating to" work done by pilots may appear to extend beyond the familiar definition of "industrial matters" in s. 4 of the Act and in certain other respects it departs from the terms of that definition. But however defined it cannot extend beyond the constitutional concept of an industrial dispute in s. 51 (xxxv.) of the Constitution. (at p159)

8. The prosecutors contend that a claim by an employee in one business or enterprise to seniority, and all the advantages which flow from it, relative to employees of another distinct business, cannot be an industrial matter either within the definition in s. 88H or as understood constitutionally. (at p159)

9. Before considering the validity of this contention the basis of fact on which it rests calls for some comment. To treat the concept of a "business" as a precise one, with an identity distinct from the legal personality which is its owner, is a novelty in our law; if embraced it would require careful definition so as to accord it that degree of precision essential to its use. Nothing emerged in the course of argument which would in my view endow it with this quality. Indeed a consideration of the material which was relied upon for the rather different purpose of establishing that the four airlines with which A.T.I.O. is concerned are separate businesses reveals the difficulties of attempting any systematic identification of the concept. (at p159)

10. For almost every indicia of a separate business adduced by the prosecutors the respondents could point to a directly contrary indicator in their affidavits which in part or in whole directly contradicted the inference urged by the prosecutors. Thus the fact that each airline has a separate accounting system, resulting in a separate profit and loss statement for each airline, is offset by the existence, for each airline, of a separate budget from A.T.I.O., each airline reporting weekly and supplying monthly profit and loss statements to head office. The prosecutors point to an internal system of accounting and separate overdraft limit; but the respondents note that one computer records personnel data of all A.T.I.O. pilots and the service history of all A.T.I.O. aircraft, and that funds are constantly transferred between airlines to adjust surpluses and deficits. (at p159)

11. The prosecutors also rely heavily on geographical separation, the deliberate avoidance of competition and a minimal duplication of routes. On the other hand hangar space and airport buildings are all leased by A.T.I.O. although used by one or other of the airlines; in many cases the same counters and counter staff are used by several of the airlines; there are substantial similarities in uniforms, aircraft insignia and tickets; all maintenance is done by Ansett Airlines of Australia staff, the other airlines having no maintenance engineers; there is a common operations manual compiled by A.T.I.O.; all safety matters are referred to A.T.I.O. and there is a common superannuation scheme for all pilots although not for other employees. (at p160)

12. Not only do the prosecutors fail, in my view, to make good the proposition that four separate businesses exist; they succeed in demonstrating the unsatisfactory nature of the concept of a "business" when sought to be used as it is in their submissions. As I understood the argument it was said that the one legal entity, A.T.I.O., should, in each of four different contexts, be regarded as an employer distinct and separate from its character as an employer in others of those contexts. The definition of employer in s. 88H and its reference to "a person ... carrying on a business" was relied upon; it was said that it involved both legal and factual considerations so that it could be said of the one legal entity that it was at the one time a separate employer in each of four separate businesses. (at p160)

13. Whatever may have been the reason for the reference to "business" in that definition I am quite unable to regard it as producing this consequence; it provides no justification for distracting attention from legal personality to business structure and factual context. The very definition of "employer" is itself concerned with legal personality when it defines "employer" to mean "a person (including an authority of the Commonwealth)". I confess to having no regrets in arriving at this conclusion, the alternative view would lead to extreme uncertainty involving, as it would, the attributing of a high degree of precision to concepts incapable of bearing such a burden. If it matters, a likely reason why "business" is used in the definition is, I think, that it was desired to exclude from the ambit of Pt IIIA the case of foreign airlines, whether operated by foreign corporations, by their locally incorporated subsidiaries or, perhaps, as the enterprise of a foreign State; recourse to the well-known concept of the location of the place of control of a business (Koitaki Para Rubber Estates Ltd. v. Federal Commissioner of Taxation (1940) 64 CLR 15 ) effects that exclusion, hence the reference to "business" where twice occurring in the definition. (at p160)

14. I conclude that the prosecutors have failed to establish the factual basis upon which their general proposition is founded. They have failed to show that A.T.I.O.'s four airlines are four distinct businesses in the sense which they would wish to give to that term. Nor has it, I think, been demonstrated that Pt IIIA is concerned with employment by particular businesses rather than by the legal persons who conduct those businesses. Had they done both these things I am nevertheless by no means convinced that in the very special circumstances of this case the correct conclusion would then be that the Tribunal lacked jurisdiction. Putting the matter in a way most favourable to the prosecutors and regarding the four airlines as if each were a distinct legal person, this would not, I think, necessarily deprive the present dispute of its character as a dispute concerning an industrial matter. (at p161)

15. Although the prosecutors do not concede this, a demand that employees' entitlement to promotion or liability to retrenchment should be determined by their employer by reference to a seniority list of his employees must clearly concern an industrial matter; the notion of "first in, last out" as it may affect retrenchment and hence the sequence in which an employer may retrench members of his staff inter se and, no doubt, also promote them, is close indeed to the centre of that complex of relations between employer and employee which are industrial matters. As Gibbs J. observed in Reg. v. Portus; Ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312, at p 323 the dismissal of an employee is something that pertains to the relationship between the employee and his employer and is an industrial matter. Matters of retrenchment and of promotion clearly come within the definitions of that phrase in s.4 and in s. 88H of the Act and to seek to have these matters determined by reference to a list of employees compiled upon the basis of seniority is but one way of regulating them. (at p161)

16. Any extension of this concept beyond that of the employees of a particular employer so as to include the employees of a number of employers engaged in the one industry, and who would presumably be competitors, would normally present very obvious practical difficulties associated with diversity of employment conditions, job qualifications and functions, and industrial policies. No such difficulties are involved in the present case, the common interests and close relationship of the Ansett airlines, in an industry where qualifications and training are officially standardized, provide a ready basis for integration of seniority rights. (at p161)

17. The presence of practical difficulties in giving effect to a demand will often be suggestive of the fact that the subject matter of the demand is not an industrial matter and their absence will suggest the contrary. This is, no doubt, only the expression, in less absolute form, of a proposition stated in the Union Badge Case (Australian Tramways Employees Association v. Prahran & Malvern Tramway Trust) [1913] HCA 53; (1913) 17 CLR 680, at p 718 and since described as too broad; that that which is within the power of employers to concede and carry out will, when demanded, give rise to an industrial dispute. The converse of that proposition, that which an employer is powerless to do will not be an industrial matter, may also be over-broad; but that vice does not, I think, affect what I have said about the indication afforded by the presence or absence of practical difficulties. (at p162)

18. In the present case an extension of the concept of a seniority list so as to comprehend a number of employers, as e.g. if each of the four airlines was conducted by a distinct subsidiary of A.T.I.O., would not alter the character of that which was demanded. It would remain, as it now is, intimately concerned with the relationship of master and servant; it would be "with respect to a matter pertaining to the relations of employers and employees" and would not travel out of that area into one concerned with demands "of a political or social or managerial nature", it would remain "inherently associated with the relationship of employer and employee and not with some other type of relationship" - Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd. [1972] HCA 57; (1972) 127 CLR 353, at pp 357-358, 371 . (at p162)

19. What would be odd would be its effect in imposing obligations upon employers in relation to some workers not employed by them and in conferring rights upon workers against some employers other than their own employer. However it is no novelty of our industrial law that demands may be made upon, and awards made binding upon, those with whom the makers of the demands have no employer-employee relationship: the Burwood Cinema Case (Burwood Cinema Ltd. v. Australian Theatrical & Amusement Employees' Association) [1925] HCA 7; (1925) 35 CLR 528 ; the Metal Trades Case (Metal Trades Employers Association v. Amalgamated Engineering Union) [1935] HCA 79; (1935) 54 CLR 387 . The circumstances which I have postulated would not normally call for the accommodating of one feature of those cases which, while overcome, did occasion some difficulty; there would be no case of non-claimants, that is non-unionists, having benefits conferred upon them. The present case is not, as it happens, a normal situation and this because some pilots are, in effect, non-claimants; in that sense and in this particular respect the present case presents features very similar to those two reported cases. (at p162)

20. In the Metal Trades Case the fact that the wages demand extended to employers in the same industry but who did not employ any unionists, any claimants, did not deprive the resultant dispute of its character as an industrial dispute. In that case Rich and Evatt JJ. said (1935) 54 CLR, at p 418 :

"Nor does the fact that the demand made by the unionists
extends to the case of employers who do not employ unionists
at all, prevent the creation of an industrial dispute upon the
subject matter of the terms and conditions which should be
observed by such employers in employing such
non-unionists In such cases, the union has an equally direct
concern in removing the obstacles to the employment of its
own members and to the maintenance and protection of the
union standard of wages, even although the removal of such
obstacle by the granting of the demand will incidentally
benefit persons, non-unionists, who are not parties to the
dispute, but the terms of whose employment by their
employers (parties to the dispute) is the subject matter of the
industrial dispute." (at p163)

21. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507, at pp 537-538 Dixon J. explained the effect of the Metal Trades Case in which he was a dissentient, when he said: "an industrial dispute may be raised by it" (an organization of employees) "with employers employing none of its members and an award may be made binding such employers and regulating the terms and conditions upon which they may employ unionists or non-unionists." (at p163)

22. Whether or not in any particular case a dispute concerns an industrial matter may depend, ultimately, upon the degree to which what is in dispute can be said to be demanded by employees in their role as employees and of employers in their role as employers, (only for convenience of expression do I assume, contrary to fact, that all demands are made by employees upon employers). In the words of the definition of "industrial matters" in s. 4, the subject matter of the demand must pertain to the present and future relations of employers and employees; this may include "much that is outside the contract of service and its incidents and the work done under it": per Dixon C.J. in Reg. v. Findlay; Ex parte Commonwealth Steamship Owners' Association [1953] HCA 81; (1954) 90 CLR 621, at p 630 . (at p163)

23. The reflection, in the subject matter of a demand, of some other role, whether played by employee or by employer, or the attempted imposition upon employers of another role, is likely to result in the subject of the dispute no longer being industrial in character. Thus if the demand relates to matters predominantly of concern to employees in their role as electors or, say, as conservationists, or of concern to employers as, perhaps, entrepreneurs or exporters or if it seeks to impose upon the employer an obligation unrelated to his role of employer, for instance that of financial agent - see per Menzies J. in Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd (1972) 127 CLR, at p 360 - it may have thereby lost its character as a dispute concerning industrial matters. (at p164)

24. It is in the light of considerations such as these that I have concluded that a demand for an integrated seniority list for pilots engaged in the four airlines would, if refused, give rise to an industrial dispute even if each airline was a distinct legal person, a subsidiary company of A.T.I.O. The demand would relate to an industrial matter and would not be deprived of that character by the fact that A.T.I.O. chose to conduct its affairs by means of a group of subsidiary companies rather than through divisions of the one corporate entity. This conclusion serves to demonstrate how unrewarding must be the prosecutors' search for a want of industrial subject matter if directed only to showing some high degree of separation between the various "businesses" of A.T.I.O. (at p164)

25. To some extent the prosecutors did not confine their argument to want of industrial subject matter but also relied upon the fact that it is the individual pilots of the intrastate airlines, and not any registered organization, who are parties to the present dispute. In this regard I have had the advantage of reading and agree with the observations in the judgment of my brother Mason. (at p164)

26. I would discharge the order nisi. (at p164)

MASON J. This is an application to make absolute an order nisi for prohibition against the Flight Crew Officers Industrial Tribunal ("the Tribunal"). The application arises out of proceedings before the Tribunal relating to a claim made by the pilots employed by Ansett Airlines of New South Wales, Ansett Airlines of South Australia and MacRobertson Miller Airline Services ("the three airlines") for the establishment of an integrated or common seniority list covering pilots employed by the three airlines and those employed by Ansett Airlines of Australia. Hitherto the pilots of each of the four airlines have had their promotion in rank and qualification for operating aircraft measured or determined by a seniority list confined to pilots employed in the particular airline in which they were employed. The essence of the claim for the integrated seniority list is that when a vacancy occurs in one of the four airlines it will be filled by the pilot who has priority according to the integrated list, notwithstanding that he may not be a pilot employed in the airline in which the vacancy occurred. Likewise, when a retrenchment is made in one airline the pilot whose services will be terminated will be the pilot whose seniority according to the integrated list marks him out for retrenchment, notwithstanding that he is not working for the airline called upon to make the retrenchment. The position of the retrenched pilot will then be taken by a pilot from the airline in which the redundancy has actually occurred. (at p165)

2. The evidence does not disclose the circumstances in which the pilots of the three airlines initially made the claim, but it shows that on 11th August 1975 the Tribunal received a telegram from one R. Swinbourne notifying on behalf of the pilots in the three airlines the existence of an industrial dispute between those pilots and Ansett Transport Industries (Operations) Pty. Ltd. ("A.T.I.O."), the operator of the four airlines, regarding an abrogation by A.T.I.O. "to have the matter of an integrated seniority list arbitrated". The telegram was followed by a formal notification dated 15th August 1975 signed by R. Swinbourne of the existence of the dispute. This notification, again said to be given on behalf of all pilots in the three airlines, set out the history of the dispute, suggesting that the initial claim for the integrated seniority list was made by the Australian Federation of Air Pilots ("the Federation"). The notification went on to recite:

"2. In June, 1975 the said Company (A.T.I.O.) agreed to
the establishment of Integrated Seniority List, the
method of integrating to be decided by private
Arbitration, following unsuccessful negotiation and
conciliation.
3. On or about the 4th August, 1975 the said Company
withdrew its agreement to private arbitration.
4. The Pilots of the named operating units of the said
Company demand that the method of Integration be
determined by Arbitration because all attempts at
negotiation and conciliation have failed.
5. The Company now wants to unilaterally compile the
list. The said Pilots reject this." (at p165)

3. From this it appears that, although the initial claim was made by the Federation, it has been adopted by the pilots of the three airlines. It also appears that, although A.T.I.O. agreed to the establishment of an integrated list, the method of integrating to be determined by private arbitration, A.T.I.O., though conceding that there should be an integrated list, insists upon determining the method of compilation for itself. (at p166)

4. In the proceedings which were contested by the prosecutors, each of whom is a pilot in the employ of Ansett Airlines of Australia and who represented all the pilots employed by Ansett Airlines of Australia, the Tribunal rejected a submission by the prosecutors that it lacked jurisdiction. The Tribunal made the following findings: (1) that an industrial dispute existed between A.T.I.O. on the one hand and all pilots employed by A.T.I.O. with the three airlines; (2) that the industrial dispute related to the seniority listing of those pilots with pilots employed by A.T.I.O. with Ansett Airlines of Australia; and (3) that the industrial dispute extended to all Australian States. (at p166)

5. These findings were based on evidence which showed that the pilots in the four airlines were employed by the same employer, A.T.I.O. The registration records of the four firms showed that the sole member of each firm was A.T.I.O. His Honour acknowledged that cl. 4 of the Airline Pilots' Agreement 1974 between each of the four airlines and the Federation provided "This Agreement shall be binding upon the employers named in Schedule 'A' hereunder" and that in the schedule each of the four airlines was separately named as an employer, but his Honour considered it sufficient to found jurisdiction that A.T.I.O. was the operator of each airline and that there was in truth but one employer. In his Honour's view the dispute had an industrial character and possessed the necessary interstate flavour. (at p166)

6. In this Court the correctness of these findings has been challenged and as the issues in question go to the jurisdiction of the Tribunal we have to consider them afresh and in that consideration we are not confined to the evidence adduced before the Tribunal. In fact additional evidence has been presented in this Court, but before I refer to it I should mention the statutory provisions governing the jurisdiction of the Tribunal for it is upon these provisions that the relevant issues depend. (at p166)

7. The jurisdiction of the Tribunal is dealt with in Pt IIIA of the Conciliation and Arbitration Act 1902, as amended. The powers of the Tribunal are expressed in s. 88U which, so far as it is material to this case, provides:

"(1) The Tribunal is empowered -
. . .
(b) to consider and determine industrial questions in so far
as the industrial matters concerned relate to one or
more of the following:-
(i) employment of flight crew officers by the
Australian National Airlines Commission;
(ii) employment of flight crew officers by Qantas
Airways Limited;
(iii) trade and commerce with other countries or
among the States, trade and commerce between a
State and a Territory and commerce in a
Territory; and
(c) to prevent or settle, by conciliation or arbitration,
inter-State industrial disputes.
(2) For the purposes of the last preceding sub-section but
without limiting the operation of that sub-section, an
industrial matter shall be deemed to relate to trade and
commerce referred to in paragraph (b) of that sub-section in
so far as the matter relates to employment of persons in or
for, or for training in or for, the performance of duties as
flight crew officers in relation to aircraft engaged in, or the
performance of duties that include duties as flight crew
officers in relation to aircraft engaged in any such trade and
commerce." (at p167)

8. Section 88U has to be read in the light of s. 88H which contains a series of definitions of terms used in Pt IIIA, subject to the existence of any contrary intention. The relevant definitions are:

"'dispute' includes -
(a) a threatened, impending or probable dispute;
(b) a part of a dispute;
(c) a dispute so far as it relates to a matter in
dispute; or
(d) a question arising in relation to a dispute."
"'employer' means a person (including an authority of the
Commonwealth) carrying on a business in the course of
which the person employs flight crew officers, not being a
business the principal place of control of which is outside
Australia."
"'employment' means employment by an employer."
"'inter-State industrial dispute' means a dispute as to
industrial matters that extends beyond the limits of any
one State, but does not include such a dispute in so far as
it is within the powers of the Tribunal under paragraph
(b) of sub-section (1) of section 88U."
"'industrial matters' means all matters pertaining to the
remuneration or other terms or conditions of service or
employment of, or affecting or relating to work done or to
be done by, flight crew officers employed or to be
employed by employers."
"'industrial question' means a dispute or question as to
industrial matters, including an inter-State industrial
dispute." (at p167)

9. It will be seen, therefore, that the Tribunal based its exercise of jurisdiction on s. 88U (1) (c) and on the existence of an interstate industrial dispute, not upon s. 88U (1) (b) (iii) as elaborated by sub-s. (2). Although counsel for the respondent Swinbourne sought to sustain the Tribunal's jurisdiction by reference to sub-ss. (1) (b) (iii) and (2) as well as sub-s. (1) (c) it is unnecessary to consider the alternative submission as it is my opinion that the Tribunal was correct in holding that it possessed jurisdiction under s. 88U (1) (c). (at p168)

10. There was a dispute. That much, if nothing else, was common ground. Was it a dispute as to an "industrial matter"? This is the first question. It arises from the statutory definition of "inter-State industrial dispute". The answer to the question turns on yet another statutory definition, that of "industrial matters". Putting aside for one moment a problem that arises in connexion with the word "employment", the dispute arising from the demand for an integrated seniority list in my opinion was a dispute as to a matter "pertaining to the ... terms or conditions of service or employment of" flight crew officers employed by an employer. The common list, however it may be compiled, will regulate the terms and conditions of service of pilots in the four airlines; it will in particular regulate their seniority, promotion and retrenchment. (at p168)

11. It is on the presence of the word "employment" and more particularly on the word "employer" that the prosecutors principally rely, for they say that the definition of "employer" confines its meaning to one who employs another in a particular business, making the notion of employment in a particular business an essential element in the concept of "employer" and "employment" and in the derivative definitions of "industrial matters" and "inter-State industrial dispute". The argument called in aid observations in the decided cases which draw attention to the elements in the definition of "industrial matters" and "industrial dispute" where they occur in s. 4 of the Act. It has been said that these definitions restrict the statutory conception of "industrial dispute" in s. 4 "so that no material part of the definition goes beyond the relations of employers and employees" (Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd., per Dixon, Fullagar and Kitto JJ. [1952] HCA 10; (1952) 85 CLR 138, at p 150 ; see also Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) (1930) 42 CLR 527, at p 552 ; The Builders' Labourers' Case [1914] HCA 32; (1914) 18 CLR 224, at p 244 ). Even so, one may subscribe to this limitation on the statutory conception of "industrial dispute" without accepting as a consequence that the present dispute stands outside "the relations of employers and employees". Certainly these decisions do not support the view that an industrial dispute is confined to a dispute between employees and an employer in a single business. (at p169)

12. The prosecutors' argument at times suggested that each airline was a different employer whereas in truth there was but one employer, A.T.I.O., which was carrying on business under different names. It is conceivable that each airline was conducted by A.T.I.O. as a separate business. But this does not alter the fact that there was but one employer carrying on businesses in the same industry, the airline industry. The observations in the cases therefore do not advance the prosecutors' argument. (at p169)

13. Indeed, the argument is entirely inconsistent with the Court's decisions upholding the jurisdiction of the Arbitration Commission to make awards giving preference to unionists - see Metal Trades Employers Association v. Amalgamated Engineering Union (the Metal Trades Case) [1935] HCA 79; (1935) 54 CLR 387, at p 405 . In that case it was thought to be sufficient that there was a dispute between employer and employee about the employment of non-unionists, on the footing that a dispute relating to the industrial relations between one set of disputants and third persons is a dispute as to an industrial matter (see per Latham C.J. (1935)54 CLR, at p 402 ). The present case, where the dispute is as to the terms and conditions of employment of the employee claimants, is a fortiori. (at p169)

14. The definition of "industrial matters" in s. 88H, though substantially similar to that contained in s.4, differs in several respects. To the extent to which s.88H speaks of matters "pertaining" to terms or conditions of service or employment it is wider in two respects than the corresponding paragraph in the s.4 definition which merely includes "(h) the mode, terms and conditions of employment" without any introductory words indicating the existence of a relationship between "matter" and the topic thereby included and without making mention of the word "service", a word which is itself not defined by the statute. The statutory definition therefore provides no support in this respect for the prosecutors' argument. (at p169)

15. On this aspect of the case we are left with the definitions of "employer" and "employment" and the suggestion that they relate to an employer in one business and, consequentially, to employment in a particular business, a suggestion having its origin in the expression "a person ...carrying on a business". Why the expression should only be read in the singular when the rule of construction is that, in the absence of a contrary intention, it should also be read in the plural (Acts Interpretation Act 1901, as amended, s.23 (b)), the argument did not explain. Certainly there is nothing in the context to indicate that the scope of an "industrial matter" or an "inter-State industrial dispute" was to be confined to a relationship between employees and an employer within the ambit of a single business. Rather does it seem that the expression "carrying on a business" was intended merely to impose the qualification that the employer should be engaged in business activity (in the course of which flight crew officers are employed). (at p170)

16. The contrary view attaches much importance to the concept of a single or separate business, a context in which the word "business" assumes a chameleon-like hue. Yet it is not readily to be supposed that the questions whether an employer is carrying on one or more businesses, whether one business is separate from, or independent of, another, with all the uncertainties that they entail, were intended to be elevated into critical elements in the definition of "industrial matter". Nor is there any persuasive underlying reason or policy which would readily explain the introduction of these elements. Indeed, their introduction would make a radical departure from the statutory conception of "industrial dispute" as it has hitherto existed under s.4 of the Act. In that context the only relevant limitation has been expressed in the word "industrial" and it has been repeatedly asserted that the notion of "industrial dispute" is not restricted by reference to particular contracts of employment. To my mind the same comment must be made about Pt IIIA of the Act. It is quite evidently intended to regulate the settlement of industial disputes in the airline industry generally. It would not conform with this object that the Tribunal's jurisdiction should be restricted by such a novel and narrow conception of "industrial matter" and "industrial dispute". (at p170)

17. It follows then, in my view, that the dispute was as to an industrial matter and that the question whether the four airlines are carried on or conducted as separate businesses is of no materiality. I therefore find it unnecessary to express any opinion as to the effect on this question of the evidence which has been tendered. Nor are we concerned with the complications, much discussed in argument, arising from a claim by the employees of one employer for an integrated seniority list comprehending themselves and the employees of other employers. (at p170)

18. The next question is whether the dispute is an "inter-State industrial dispute". The argument that it was not a dispute having an interstate character took as its central ground the fact that the demand for an integrated seniority list was made, not by a registered organization under the Act, but by the individual pilots in the three airlines. This, it was said, gave rise to a multiplicity of individual disputes, necessarily having an intrastate rather than an interstate flavour. (at p171)

19. The argument was misconceived. It never has been law that an interstate industrial dispute cannot be established by failure to comply with a demand made by individuals, as distinct from a demand made by a registered organization. In Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 , where the validity of the Conciliation and Arbitration Act to the extent to which it made provision for the registration of associations to represent employers and employees was upheld, it was acknowledged that the existence of these associations, beneficial though they would be in facilitating the settlement of disputes, was not essential to the creation of interstate industrial disputes. It was pointed out that disputes of this kind arose whenever a substantial number of workmen in an industry in more than one State collectively sought an alteration in the terms and conditions of their employment which employers declined to concede. So Barton J. said (1908)6 CLR, at p 341 :

"An industrial dispute ... does not take place unless a
number of employes in an industry unite on their part to
enter into controversy with the person or persons employing
them so as to secure what they consider an improvement ...
in relation to the terms of their employment. An industrial
dispute, so as to extend beyond the limits of one State, seems
still more insistently to involve the idea of numbers
interested in the making or resisting of a claim in respect of
industrial conditions."

O'Connor J. observed (1908)6 CLR, at p 352 : "That the parties on either side should be organized in any permanent form of combination is not essential", and later:

"It is not at all essential to the concept of such a dispute
within the meaning of the Constitution that the workmen
should be combined in any formal inter-state union any more
than it is necessary to constitute an industrial dispute within
the limits of a State that it should be carried on by a trade
union representing the workers in that trade."

However, his Honour made it clear that there was a necessity for "concerted action" or "combination". To the same effect were the comments of Isaacs J. (1908) 6 CLR, at pp 372-375, esp pp 372,374 . (at p171)

20. Then in The Builders' Labourers' Case Gavan Duffy and Rich JJ. said (1914) 18 CLR, at p 255 :

"A dispute extends beyond the limits of any one State when
it exists in more than one State, that is to say, extends over
an area which embraces territory of more than one
State. When persons engaged in industrial disputes, and
living some in one State and some in another, join together to
insist, and do insist, on the concession of common industrial
conditions which are definitely and finally refused by those
from whom they are demanded, the words of the sub-section
are satisfied, and that is so here."

See also Burwood Cinema Ltd v. Australian Theatrical and Amusement Employees Association, per Starke J. [1925] HCA 7; (1925) 35 CLR 528, at pp 548-549 ; and the Metal Trades Case, per Latham C.J. (1935) 54 CLR, at p 404 . (at p172)

21. Finally, in Reg. v. Portus; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537 it was held that an industrial dispute extending beyond the limits of one State existed between an airline company and air pilots employed by the company arising out of a failure to comply with a demand made by or on behalf of the pilots. Dixon C.J., Kitto, Taylor and Windeyer JJ. said (1961) 105 CLR, at p 546 :

"But to enable the Commissioner to take under his
consideration the alleged industrial dispute it is sufficient if it
appears that there is an industrial dispute between a
substantial number of air pilots and Qantas Empire Airways
Ltd., and that it is so seems to be a reasonably certain
inference." (at p172)

22. Here it is evident that the demand made on behalf of the pilots of the three airlines was a collective demand claiming an integrated seniority list, the method of intgration to be determined by private arbitration, which would regulate the conditions of employment of pilots in all four airlines. There is simply no room here for the view that there was an aggregation of individual demands, each independent of the others. On the contrary, there was a collective demand by employees in different States against an employer carrying on business in the one industry in those States. That, in my opinion, is enough to found an interstate dispute. It is well accepted that a demand made upon employers in different States by an industrial union for uniform conditions of employment of workers whose duties involve no interstate activity will give rise to an interstate dispute. A dispute arising from a demand made in relation to such a subject matter does not cease to have an interstate character because the demand is made by employees collectively and not by a union, or because the demand is made upon one employer carrying on business in different States and not upon several employers each carrying on business in a different State. (at p173)

23. In passing I should mention that the dispute so far as it relates to the claim made on behalf of those pilots who are engaged in interstate air navigation has an even stronger interstate flavour. (at p173)

24. In the result I would discharge the order nisi. (at p173)

JACOBS J. In my opinion the order nisi should be discharged. I have read the reasons for judgment prepared by Stephen J. and Mason J. with which I am in substantial agreement. (at p173)

MURPHY J. In my opinion, the Flight Crew Officers Tribunal has jurisdiction arising from s. 88U (1) (b) (iii) and s. 88U (1) (c) of the Conciliation and Arbitration Act 1904 (as amended) to settle the dispute which it found to exist. Section 88U provides:

"(1) The Tribunal is empowered -
...
(b) to consider and determine industrial questions in so far
as the industrial matters concerned relate to one or
more of the following: -
...
(iii) trade and commerce with other countries or
among the States, trade and commerce between a
State and a Territory or trade and commerce in a
Territory; and
(c) to prevent or settle, by conciliation or arbitration,
inter-state industrial disputes.
(2) For the purposes of the last preceding sub-section but
without limiting the operation of that sub-section, an
industrial matter shall be deemed to relate to trade and
commerce referred to in paragraph (b) of that sub-section in
so far as the matter relates to employment of persons in or
for, or for training in or for, the performance of duties as
flight crew officers in relation to aircraft engaged in, or the
performance of duties that include duties as flight crew
officers in relation to aircraft engaged in any such trade and
commerce." (at p173)

2. Pilots in three of the second respondent's airlines (Ansett Airlines of New South Wales, Ansett Airlines of South Australia, and MacRobertson Miller Airline Service) demanded that there should be an integrated seniority list covering these airlines (and the respondent's major airline, Ansett Airlines of Australia) and that promotion (and demotion and retrenchment) in all of the airlines should be according to the seniority list. The refusal of this demand gave rise to an industrial matter within the definition of s. 88H of the Act, which states:

"'industrial matters' means all matters pertaining to the
remuneration or other terms or conditions of service or
employment of, or affecting or relating to work done or to be
done by, flight crew officers employed or to be employed by
employers."

It was argued that the respondent was not an employer in the sense of this definition because s. 88H also states:

"'employer' means a person (including an authority of the
Commonwealth) carrying on a business in the course of
which the person employs flight crew officers, not being a
business the principal place of control of which is outside
Australia." (at p174)

3. The prosecutor contended that, to found an industrial matter, employees' claims must concern only the business in which they were employed; that the respondent conducted the four airlines as separate businesses; that, within the meaning of the statutory provisions, there were four separate employers; and, that any claim relating to an airline business other than that in which a pilot was employed was outside the employer-employee relationship and therefore outside the scope of industrial matters. (at p174)

4. Much argument was based on s. 4 of the Act but the definition of "industrial matters" in s. 4 differs significantly from that in s. 88H. I agree with the construction Mason J. has put upon these provisions in his reasons. Even if the businesses were separate (or even if they were conducted by separate employers), the statutory provisions do not support the argument that the dispute does not concern an industrial matter. (at p174)

5. There is no satisfactory distinction between the determination of claims made here and those for preference in employment, which have been held to come within the consititutional power and within statutory meanings of industrial matter and are well recognized in some industries. (at p174)

6. The prosecutor submitted that the definition of "industrial matters" in the Act must be read in the light of the power conferred on Parliament by s. 51 (xxxv.) of the Constitution. It contended that "the only subjects of an industrial dispute in a constitutional sense are those which can properly be said to be incidents to the common law relationship of master and servant". I find no justification for this narrow view of the constitutional power. It is not limited to employer-employee relationships and it would be absurd to limit it to common law concepts of master-servant relationships. If industry ceased to be conducted on an employer-employee basis, it would not mean that the constitutional power would be inapplicable. In recent years, significant changes have occurred in industrial relations. In some industries, work previously carried out on an employer-employee basis is now done under the contract system. Industrial disputes within s. 51 (xxxv.) can arise between those who are not employers and employees. (at p175)

7. The prosecutor also contended that, even if there was a dispute over industrial matters, it was not an interstate industrial dispute as each pilot was making a claim against his employer in relation to the business conducted in the pilot's State or Territory. On this aspect, the prosecutor conceded that such a claim could give rise to an interstate dispute if made by an organization, but contended that such a dispute could not arise from an aggregation of individual claims. It is not necessary, however, that the claim be made by an organization (see Reg. v. Portus; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537, at pp 544-545 ). When individuals in a State and others outside the State combine to make claims (each of which can in a sense be regarded as a claim by an individual against his employer in the same State or Territory), these can give rise to an industrial dispute extending beyond the limits of any one State. The words in s. 51 (xxxv.) are not to be read artificially. As the respondent argued, the prosecutor's contention was rejected in a number of cases (see Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 ; The Builders' Labourers' Case [1914] HCA 32; (1914) 18 CLR 224 ; Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [1925] HCA 7; (1925) 35 CLR 528 ; Reg. v. Portus; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537 ). On the facts, the dispute extended beyond the limits of any one State. It was an "inter-State industrial dispute" as defined in the Act. (at p175)

8. In my opinion, although the submissions for and against were not developed in depth, the jurisdiction is also sustainable under s. 88U (1) (b) (iii), read with s. 88U (2). (at p175)

9. The demand of the pilots to be employed (according to a seniority list) in the interstate operations of the prosecutor, in the operations between a State and a Territory, and in a Territory, gave rise to an industrial matter which relates to trade and commerce among the States, between a State and a Territory, and in a Territory and also relates to employment of persons in or for the performance of duties as flight crew officers in relation to aircraft engaged in any such trade and commerce. This is an industrial question which the Tribunal is empowered "to consider and determine". (at p176)

10. The order nisi should be discharged. (at p176)

ORDER

Order nisi discharged.