R v Portus; Ex parte Transport Workers' Union of Australia [1977] HCA 72; (1977) 141 CLR 1 (23 December 1977)

HIGH COURT OF AUSTRALIA

THE QUEEN v. PORTUS; Ex parte TRANSPORT WORKERS' UNION OF AUSTRALIA (1977) 141 CLR 1

Industrial Law (Cth)

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

CATCHWORDS

Industrial Law (Cth) - Conciliation and Arbitration - Industrial matter - Industrial dispute - Log of claims - Claim by employer in log served on several unions for specified work to be performed only by members of one union - Whether claim for exclusion of non-unionists - Demarcation argument between unions - Demarcation of functions between members of different organizations - Privative clause - Effect of findings of Commissioner of existence of industrial dispute - Conciliation and Arbitration Act 1904 (Cth), ss. 4 "industrial matters " (j), (p)*, 5, 47 (1)**, 60(2) - Northern Territory Administration Act 1910 (Cth), s. 6 (1).

* Section 4 of the Conciliation and Arbitration Act 1904 (Cth) provided: "In this Act, except where otherwise clearly intended - 'Industrial matters' means all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing includes . . . (p) any question as to demarcation of functions of employees, whether as between employers and employees or between members of different organizations . . ."

** Section 47 (1) provided: "The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order."

HEARING

Melbourne, 1977, February 23, 24
Sydney, 1977, December 23. 23:12:1977
PROHIBITION.
Peko Mines Ltd. and Australian Development Ltd. each served a log of claims on the Federated Miscellaneous Workers Union of Australia ("MWU"), the Federated Engine Drivers' and Firemen's Association of Australasia ("FEDFA") and the Transport Workers' Union of Australia ("TWU"). The logs included a demand that "the unions agree that in the performance of work by employees in or in connection with the mining, milling, smelting and refining of ores and the establishment of the employer in or about Tennant Creek in the Northern Territory all such work shall be performed by or shall continue to be performed by members of the MWU and such work shall not be allocated to employees members of the TWU or the FEDFA". The background to the service of the log was that an unresolved dispute existed between the three unions about the allocation of work functions for each employer. The workforces of both employers all belonged to unions. Upon the rejection of the log of claims, a dispute was notified to the Conciliation and Arbitration Commission and a Commissioner found that an industrial dispute existed. An appeal against this finding by the Transport Workers' Union to the Full Bench of the Conciliation and Arbitration Commission was dismissed. The Transport Workers' Union obtained an order nisi to restrain the Commissioner from hearing the matter further.

DECISION

The following written judgments were delivered: -
BARWICK C.J. Peko Mines Ltd. and Australian Development Ltd. (the respondent Union of Australia ("the MWU"), the Federated Engine Drivers' and Firemen's Association of Australasia ("the FEDFA") and the Transport Workers' Union of Australia ("the TWU") (the prosecutors) covering employment by it in the performance of work at establishments in Tennant Creek and adjacent areas in the Northern Territory of Australia. It appears that each of the unions had made claims for its members in respect of work associated with the mining operations of the respondent companies. (at p6)

2. The demand in each log which gives rise to the present proceedings is in the following terms:
". . . that the . . . unions agree that in the performance of work by employees in or in connection with the mining, milling, smelting and refining of ores at the establishments of the employer in or about Tennant Creek in the Northern Territory, all such work shall be performed by or shall continue to be performed by members of M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D. & F.A.
. . . that the M.W.U., the F.E.D. & F.A. and the T.W.U. each recognize and accept the right of the employer to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing demarcation." (at p6)

3. The respondent member of the Australian Conciliation and Arbitration Commission, after argument, decided that, upon the refusal of the unions to concede that demand, an industrial dispute arose within the meaning of the Northern Territory (Administration) Act 1910 (Cth), as amended ("the Act"). Except for the requirement that the dispute must extend beyond the limits of any one State, that Act contains familiar definitions of industrial dispute, industrial matter, and the familiar provision as to the grant of preference to members of an organization: see s. 4 (1), s. 5 (1) (a) and s. 47 (1) of the Conciliation and Arbitration Act 1904 (Cth), as amended, and s. 6 of the Act. (at p7)

4. Upon this application to make absolute an order nisi for prohibition, it has been argued on the one hand that the demand I have quoted amounts to a demand for compulsory unionism and therefore is insusceptible of giving rise to an industrial dispute under the Act. R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 (Wallis' Case) and R. v. Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53; (1950) 81 CLR 537 (Findlay's Case) are cited in support of this proposition. On the other hand, it is submitted that the demand is for no more than demarcation of function of employees or of representation of the several unions as between themselves within the purview of the decision of the Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49; (1969) 119 CLR 529 ("the Containers' Case"). The distinction between the decisions of the Court in Wallis Case and Findlay's Case and the decision in the Containers' Case sufficiently appears from the judgments of this Court in the Containers' Case and needs no repetition here. (at p7)

5. The only question in this case is whether upon its true construction - construing it as such a demand should be construed, liberally and with the least technicality - the demand is for the performance of the described work only by persons who are members of the MWU and of no other organization, or whether, on the other hand, the demand is only that if the work is performed by a unionist he shall be a member of the MWU. If the former, the demand, in my opinion, exceeds the power of the Commission to make an award in its terms: it would not give rise to a relevant industrial dispute. It would fall within the reasoning and decision of Wallis' Case. If the demand is of the latter kind, it will amount to no more than a demand for a demarcation of function as between members of organizations and will be capable of giving rise to an industrial dispute. (at p7)

6. The respondent Commission having found the existence of such a dispute, the prosecutors seek to restrain further proceedings upon that finding. (at p7)

7. I have come to the conclusion that the demand means and was intended to mean that only persons who are members of the MWU and of no other organization should perform the described work. I do not think that the demand can be read as meaning no more than that if the described work is to be performed by a unionist, that unionist shall be a member of the MWU. For one thing, the exclusion of members of the TWU and of the FEDFA must include persons who are members of either of those unions as well as being members of the MWU. Thus, as between the members of the organizations, a monopoly of employment for persons who are members of the MWU and not members of either of the other of the three organizations is sought to be achieved. Also, the demand seems to have been grounded on a situation of complete unionization in the employment by the respondent companies. The demand contemplates that membership of the three organizations will cover the whole field of available labour in the area. The relative isolation of the scene of the respondent companies' operations tends to give countenance to that view. (at p8)

8. Consequently, I would read the demand as seeking to give to those who were members of the MWU and of neither of the other organizations an absolute monopoly of employment in the performance of the described work. Such a conclusion, on the authority of Wallis' Case and Findlay's Case, would deny the possibility of a relevant industrial dispute arising. (at p8)

9. For this reason, I would make the order nisi absolute. (at p8)

STEPHEN J. The reasons for judgment of my brother Aickin describe the circumstances in which this matter comes before the Court. The first step in its disposal is to determine the meaning of the two identical logs of claims served by each of the two respondent employer companies upon the three unions in question, one of which, The Federated Miscellaneous Workers' Union of Australia ("the MWU") is prosecutor and the other two, The Federated Engine Drivers' and Firemen's Association of Australasia ("the FEDFA") and The Transport Workers' Union of Australia ("the TWU"), are respondents. (at p8)

2. The demands in the logs are preceded by recitals which throw light upon the meaning of the demands. The logs must therefore be set out in some detail. Each being identical, I take, as a matter of convenience, that delivered by Peko Mines Ltd. It is addressed to each of the three unions and opens with the following recitals: -
"This log of claims is presented by Peko Mines Limited (the employer) being a company which employs employees in the performance of work in or in connection with the mining, milling, smelting and refining of ores at establishments in or about Tennant Creek in the Northern Territory.
The log of claims arises following claims made by the unions to which this log is addressed (hereinafter referred to as the unions) against the employer in relation to the operation of power houses and winding engines, mechanical and mobile equipment units, motor vehicles and the like operated by the employer in or in connection with its mining and associated operations in the Northern Territory.
The Federated Miscellaneous Workers' Union (the M.W.U.) has endeavoured to maintain for its members the work in connection with all such operations.
The M.W.U. claims to have constitutional coverage to enable it to obtain an award to cover all such work and has presently in operation an award binding the employer, the Gold and Metalliferous Mining (Northern Territory) Award 1973 as varied, which covers all such work.
The Transport Workers' Union of Australia (the T.W.U.) and the Federated Engine Drivers' and Firemen's Association of Australasia (the F.E.D. & F.A.) continue to pursue their claims against the employer.
The employer being aware of the likelihood of inter-union competition for the work and of the desirability to minimize friction sought by negotiation between the employer and the unions to achieve an agreement acceptable to all unions.
Negotiations having taken place between the employer and the unions concerned and those negotiations having failed to resolve the conflicting claims, it was necessary in the absence of agreement for the matter to be brought before the appropriate authority for determination, namely the Australian Conciliation and Arbitration Commission, and on the 25th November 1975 in proceedings before Mr. Commissioner Portus in Matter C No. 3413 of 1975 the employer made a verbal demand upon each of the said unions."
There then follow the following substituted demands:
"Peko Mines Limited (the employer) therefore DEMANDS of the Federated Miscellaneous Workers' Union of Australia (the M.W.U.), the Federated Engine Drivers' and Firemen's Association of Australasia (the F.E.D. & F.A.) and the Transport Workers' Union (the T.W.U.) that the said unions agree that in the performance of work by employees in or in connection with the mining, milling, smelting and refining of ores at the establishments of the employer in or about Tennant Creek in the Northern Territory, all such work shall be performed by or shall continue to be performed by members of the M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D. & F.A.
The employer further DEMANDS that the M.W.U., the F.E.D. & F.A. and the T.W.U. each recognize and accept the right of the employer to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing demarcation.
Without limiting the generality of the foregoing the aforesaid demands include and cover all persons in the employ of the employer principally engaged in the transportation of goods upon public roads by motor vehicle in or in connection with the mining, milling, smelting and refining or ores.
Provided that the aforesaid demands do not include work carried out by boilermakers or any of the following persons engaged or employed in the engineering industry: fitters, turners, machinists, blacksmiths, plumbers, electrical fitters, pattern makers and engineers generally."
There then follows a demand for a bans clause, which is not in issue in the present proceedings. The log concludes as follows:
"As the employer in his log of claims is merely formalizing demarcation proposals which have been discussed over a considerable period, the employer asks for a reply to the claims herein within 7 days of the date hereof.
Failing your overall agreement within that time to the claims set out herein the employer will take steps to refer the matter to the Australian Conciliation and Arbitration Commission for determination." (at p10)

3. The controversy over the meaning of the logs centres upon the first two paragraphs of the demands themselves. Are the employers there demanding, as the prosecutor contends, that the work shall be performed only by members of the MWU to the exclusion not only of members of the TWU and FEDFA but also of non-unionists and of any members of the MWU who, being also members of these two latter unions, therefore have dual union membership or, as the respondents contend, does the demand seek only to exclude unionists who are only members of the TWU and FEDFA, neither non-unionists nor MWU members with dual membership being excluded? (at p10)

4. The first demand is expressed, successively, in the affirmative and in the negative, each linked to the other by the word "and". The affirmative demands agreement that "in the performance of work by employees . . . all such work shall be performed by or shall continue to be performed by members of the M.W.U.", the negative that "such work shall not be allocated to employees members of the T.W.U. or the F.E.D.F.A.". Neither should, I think, be read in isolation from the other. Not only are they linked grammatically but their subject matter, the arrangement of the paragraph and the general mode of expression requires, I think, that they should be read together as expressing one entire concept. They provide an example of the common device of using affirmative and negative statements, in parallel clauses, to express the one concept in two ways, approaching it from opposite poles. The concept here is that certain work shall be the preserve of certain persons, exclusive of certain others; this is expressed, first affirmatively and then negatively, in the two successive clauses. Mr. Commissioner Portus expressed the sense of the thing succinctly when, on the first dispute first coming before him, he remarked that "if work is to be allocated to a particular union as against the members of other unions it follows that the work shall not be allocated to members of such other unions". (at p11)

5. The clauses are not perfectly correlated since one refers to performance of work, the other to its allocation; however they are, substantially, the affirmative and negative aspects of the one concept. So understood each clause adds meaning to the other, the affirmative clause being qualified in scope by the terms of its negative partner. The whole seeks no absolute monopoly for MWU members but only a monopoly as regards members of the other two unions. It follows that I do not regard the first demand as at all concerning itself with the question of non-union labour. (at p11)

6. This interpretation is borne out both by the textual and by the factual context of the demand, each of them matters germane to its construction. In his reasons for decision upon appeal from the Commissioner, Coldham J. referred to what had been said by Dixon J. in R. v. Commonwealth Court of Conciliation; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507, at p 533 concerning the need, if a matter in dispute were correctly to be understood, to do more than read the text of a log of claims. The facts and circumstances out of which the dispute arises must be looked at, since "A log is not an instrument with a prescribed legal effect. It is nothing but a catalogue of claims supposed to represent the real desires of actual people". Logs should not be the subject of any too strict or narrow construction. Barwick C.J., in Reg. v. Aird; Ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654, at p 659 , reminded us, in speaking of the eligibility of a union's constitution that more likely than not, it had been drawn "by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language". Logs of claims, whether prepared by unions or employers, are an a fortiori case. As Mason J. said of such logs in Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [1976] HCA 8; (1976) 134 CLR 56, at p 72 , "it would . . . be a serious mistake to construe the log with that degree of strictness which is reserved for formal legal instruments"; and see also Reg. v. Heagney; Ex parte A.C.T. Employers' Federation [1976] HCA 32; (1976) 137 CLR 86, at pp 98-99 , per Mason J. (at p11)

7. The facts and circumstances out of which the present dispute has arisen and the textual context furnished by the recitals, which are themselves in the form of a short account of those circumstances, confirm this construction of the first demand. (at p11)

8. The present dispute concerns long-established mine sites near Tennant Creek in the Northern Territory. At these sites no non- union labour has, it seems, ever been employed and, as was said by Sharp J. in his dissenting reasons for decision in the Commission, "given the remote location and nature of Tennant Creek that area will continue to be a totally unionised area of employment". It was not any problem of the possible introduction of non-union labour that gave rise to this dispute. Until 1974 all workers at the mine sites, other than tradesmen such as electricians and metal workers, were members of the MWU. In 1974 and 1975 the FEDFA and the TWU, each of whose membership eligibility involved considerable overlap with that of the MWU, began active campaigns to recruit members from workers at the sites. This led to industrial troubles at the mines. It was this competition as between the three unions who are parties to these proceedings which led up to the events referred to in the recitals in the employers' log of claims. As those recitals put it, there has been "inter-union competition for the work" and it was with a desire to avoid resultant friction that the two employer companies served these logs. Against this background of fact what I regard as the meaning of the first demand can be seen to reflect just such a desire. (at p12)

9. The second demand in the log is, subject only to changes in the opening words so as to make it appropriate to the present circumstances, a verbatim copy of part of cl. 5 of the log of claims served in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49; (1969) 119 CLR 529, at p 536 as set out in the report of that case. It adds nothing to the effect of the first demand and is, indeed, somewhat inappropriate to a case such as the present in which there arises no question of allocation of work as between members of each of the three unions since all work, with the exception of work undertaken by those tradesmen referred to in the later proviso, is to be performed by members of the one union, the MWU. Adding nothing, it is equally ineffective in casting any light upon the meaning of the first demand. (at p12)

10. It is for these reasons that I take the same view as did Mr. Commissioner Portus and as do the majority in the Commission in regarding the first demand as not relating to the exclusion of non-unionists from work at the sites of the employers' mines. (at p12)

11. There remains the subsidiary question of interpretation, the effect of the first demand upon the position of those having dual membership. As already appears, I do not regard the negative clause with which the first demand concludes as particularly aimed at the problem of dual membership. However this is not to say that the demand as a whole is not effective to deal with the problem of dual membership: I think that it is and that its effect is to exclude from the performance of work those members who hold dual membership. The affirmative clause has no effect upon them, the fact that they are members of the MWU is enough to include them within the favoured category of workers. The negative clause however operates otherwise; they are also members of one of the other two unions and are accordingly within the category of those expressly excluded from work allocation. I do not think that, as suggested on behalf of the respondents, there should be read into this clause the word "only" after "members". To do so radically alters its effect and no sound reason for doing so was advanced. (at p13)

12. The demand is then, in my view, one that, as between members of the TWU, the FEDFA and the MWU, no members of the TWU or the FEDFA, should be accorded work at the mine sites. The prosecutors' primary submission was that non- unionists were also excluded and that certain consequences relating to the existence or otherwise of an industrial dispute flowed from that. However they also argued, in the alternative, that, on the meaning of the log which I have adopted, like consequences would follow: there could be no industrial dispute over which the Commission might exercise jurisdiction. For this proposition reliance was placed upon R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 and R. v. Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53; (1950) 81 CLR 537 . In neither was the initiating demand similar to that in the present case nor did it arise from any similar industrial situation involving conflicting claims by competing unions and an employer's demand for agreement to resolve those conflicts. Each was, on the contrary, concerned with a demand by a union made on employers and directed at non-unionists. In Wallis' Case the deamnd was that only members of the union be employed or retained in employment; in Findlay's Case the demand was in similar terms but the award that had been made sought to overcome the difficulties which the earlier decision presented by taking the form of an award of preference. (at p13)

13. The respondents relied upon the later case of Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49; (1969) 119 CLR 529 ("the Containers' Case"). Unlike the two earlier cases, it concerned a demarcation dispute as between disputing unions and arose from a log of claims served upon those unions by employers in an endeavour to end those disputes and the resultant disruption to employment which they occasioned. In it, Wallis' Case and Findlay's Case, and especially the former, were much debated and it was contended that the dispute was not about any "industrial matters" as defined in s. 4 of the Conciliation and Arbitration Act 1904. In particular par. (p) of that definition was said to be inapplicable. By a majority, Barwick C.J., Menzies and Windeyer JJ., Kitto and Owen JJ. dissenting, the Commission's power to make an award in which work at particular container depots was allocated to particular unions and their members to the exclusion of the members of other unions was upheld. As a consequence the members of those unions to whose members work had not been so allocated were excluded from work at those depots. The award dealt not at all with non-unionists, they were in no way excluded from employment by its terms. Moreover the award did not legislate by reference to the employment or non- employment of workmen; it was concerned with the performance of work by those who had been employed, with what work they would be put to after engagement rather than with the anterior question of who should or should not be engaged by employers as their employees. (at p14)

14. In a number of respects the award in the Containers' Case closely resembles that sought by the employers' log of claims in the present case. Not only is the occasion for the serving of the log similar but the regimen sought to be established is very much the same. No effect upon non-unionists is sought and the log does not deal with employment in the sense of the initial engagement of workmen but rather with the work which those who are employees shall be given. Both the Containers' Case and the present one are conceptually remote from the subject matter of par. (j) of the definition of "industrial matters", namely, preference in employment. (at p14)

15. There are, of course, features which distinguish the facts in the Containers' Case from those in this case. Two may be thought to be of significance. The first is that the employers in this case do not seek a distribution of work as between the members of several unions but instead demand that it shall all be allocated to the members of the MWU. The second is, in a sense, a consequence of the first: the description of the class of workers by whom the work is to be done is confined to their membership of the MWU and of that union only. (at p14)

16. The argument for the prosecutors must, I think, in essence be that the demand in the log is not an industrial matter and that, even if it were, the jurisdiction of a Commissioner would not extend to the making of an award giving effect to it. (at p15)

17. The definition of "industrial matters" in s. 4 of the Act reads in part as follows: -
"'Industrial matters' means all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

(a)-(o) . . .
(p) any question as to the demarcation of functions of employees or

classes of employees, whether as between employers and employees or between members of different organizations." (at p15)

18. In the Containers' Case Windeyer J., after quoting from par. (p) of the definition, said (1969) 119 CLR, at p 557 :
"As I read the Act, disputes about such demarcations are industrial disputes. And, assuming that the necessary inter- State element be present, a demarcation disagreement between unions, in which employers are involved, can I think amount to an industrial dispute, actual or threatened, within the constitutional description. Indeed in conditions in industry prevailing today, and having regard to the obvious importance with which the parties before us regard the present question, I think I would be shutting my eyes to reality to hold otherwise. I appreciate the force of dicta in earlier judgments of this Court which were relied upon. But these earlier judgments do not, I think, compel me to a conclusion which I think would not in this case accord with the intention of Parliament."
These observations are much in point in the present case. His Honour was prepared, it seems, to regard the opening words of the definition as sufficient to bring the claims in the Containers' Case within the definition despite the difficulty presented by the decision in Wallis' Case (1969) 119 CLR, at p 556 . In any event he regarded par. (p) as putting the matter beyond doubt (1969) 119 CLR, at pp 556-557 . Menzies J. regarded himself as precluded from taking the first of these views by Wallis' Case and Findlay's Case but he too regarded par. (p) as sufficing for the purpose (1969) 119 CLR, at pp 552-554 . The remaining member of the majority, Barwick C.J., adopted a somewhat different approach generally to the case, but concluded that there existed an industrial dispute within par. (p) (1969) 119 CLR, at p 542 . (at p15)

19. The demand in the present case is, I think, equally one which relates to an industrial matter. The fact that those employees to whom the employer seeks to allocate all work are a class described by reference only to their membership of the MWU is no obstacle. In the Containers' Case both Menzies J. (1969) 119 CLR, at p 553 and Windeyer J. (1969) 119 CLR, at p 556 regarded such a description as satisfying the reference to a class of employee in par. (p) of the definition. Where what is demanded is that all work at a particular undertaking (other than the work of certain tradesmen) be performed by members of one union, any description of the class involving more than their membership of that union is superfluous. Accordingly I do not regard the nature or description of the class of employee here in question as of significance. (at p16)

20. The fact that the present log contemplates that all work shall be given to the designated class of employee is also, I think, no relevant distinguishing feature. What is sought remains a matter of demarcation, in the sense intended by par. (p) of the definition as explained in the Containers' Case by Barwick C.J. (1969) 119 CLR, at pp 534-535 by Menzies J. (1969) 119 CLR, at p 552 and by Windeyer J. (1969) 119 CLR, at p 556 and dispute is an industrial dispute whether the employer seeks to parcel out approximately equal portions of work to each of the contesting unions, proposes an allocation favouring one more than the other or, as here, demands that all relevant work be performed by members of only one union. Where the eligibility clauses of several industrial unions contain areas of overlap it will happen, as happened in this case, that members of any one of them could perform the work in question; for the employer to demand that only the members of one particular union shall perform the work is to demark that work, whether it be some or all of the work offering in his employ, within the meaning of par. (p). (at p16)

21. As to the power of a Commissioner to make an award in terms conformable with the present demand, it can only be by the invocation of s. 47 of the Act, with the effect which has been assigned to it by the decisions in Wallis' Case [1949] HCA 30; (1949) 78 CLR 529 and Findlay's Case [1950] HCA 53; (1950) 81 CLR 537 , that doubt can be cast upon that power. Section 47 is concerned with preference to unionists, as in par. (j) of the definition of "industrial matters", and it is now well established that a demand for a monopoly, as distinct from preference, for unionists cannot give rise to an industrial dispute which falls within the award-making jurisdiction of the Commission. However, as I have said earlier, the present demand, like that in the Containers' Case, is not concerned, in the words of par. (j) of the definition, with "the preferential employment or the non-employment" of anyone but only with the work which persons who are employees will have allocated to them. It is par. (p) that is here in question and I would adopt what was said by Menzies J. in the Containers' Case (1969) 119 CLR, at p 554 :
"It appears to me that if a matter is an industrial matter because it falls within one of the lettered paragraphs in s. 4 (1), it can only be in a clear case that some other provision of the Act should be regarded as forbidding the settlement of a dispute as to that matter in accordance with the provisions of s. 23 of the Act. Of course, if the dispute is one as to preference the provisions of s. 47 apply, notwithstanding a preference based upon membership of an organization is specifically referred to in s. 4 (1) (j), and if the disputes here are as to preference or a matter ejusdem generis s. 47 can operate as a limitation upon the power to settle them. This follows, I think, from R. v. Wallis. See particularly Dixon J. (1949) 78 CLR, at p 553 . I find no difficulty however, in saying that the disputes here are not disputes about preference."
In the present case no question of preference arises nor any question ejusdem generis therewith, such as compulsory unionism, and as Menzies J. went on to say (1949) 78 CLR, at p 553 , "to demark the functions of employees is something separate and distinct from giving preference . . . even if the demarcation proceeds by reference to membership of organizations". Section 47 therefore has no application and imposes no restriction upon a Commissioner's power. (at p17)

22. I do not overlook the practical effect that an award in terms of the present log will have both upon the subsequent recruitment of new employees and upon the retention in employment of existing employees who for some reason fail to satisfy the description of that class to which alone work is to be allocated. Recruitment will almost certainly be confined to unionists of that class and, possibly, non-unionists and it will no doubt result in existing employees who do not bring themselves within either category being laid off. However to give weight to this consideration is, as Barwick C.J. remarked in different context in the Containers' Case (1969) 119 CLR, at p 544 , to confuse "the substance of the demand and of the award with the consequences which may flow from such an award and its observance". In Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. [1971] HCA 49; (1972) 125 CLR 529 Menzies J., with whose reasons Owen J. agreed, dealt with very much this question but against the background of a claim to preference. His Honour said (1972) 126 CLR, at p 559 that it was not the likely consequences of the granting of claims but rather that which was actually claimed that would determine whether a claim was for preference or for monopoly of employment - and see per Windeyer J. (1972) 126 CLR, at p 573 . (at p18)

23. It may be added that any award such as the present, concerned with demarcation, will to a greater or lesser extent produce the effect of a monopoly as between members of contending unions; the award in the Containers' Case produced a number of areas of virtual monopoly and although, as Barwick C.J. remarked in that case (1969) 119 CLR, at p 535 , "the claim to a demarcation of function assumes the antecedent employment" the effect of the award, which would apply to each new employee as and when he became one, would inevitably be to restrict employment to those whom the employer could, consistently with the award, allocate to the particular work for which a new employee was engaged. Yet this consideration did not, in the eyes of the majority, affect the validity of the award in the Containers' Case. (at p18)

24. It follows that in my view neither of the matters upon which the prosecutors' argument must depend will operate to prevent the making of a valid award giving effect to the present log of claims. (at p18)

25. In these circumstances it is unnecessary for the disposal of this case that I should deal with the submissions urged on behalf of the employers as to the effect of s. 60 of the Act, operating in conjunction with s. 6 (1) of the Northern Territory Administration Act 1910. (at p18)

26. I would discharge the rule nisi. (at p18)

JACOBS J. Since about June 1974 troubles have arisen at the sites of Peko Mines Ltd. ("Peko") and Australian Development Ltd. ("ADL") in the Northern Territory between the Federated Miscellaneous Workers' Union of Australia ("MWU") and the Federated Engine Drivers' and Firemen's Association of Australasia ("FEDFA") as to their respective rights to enrol as members and to seek to represent the industrial interests of persons employed by Peko and ADL. (at p18)

2. Since about June 1975 similar troubles have arisen between MWU, FEDFA, and the Transport Workers' Union of Australia ("TWU"). These disputes have led to bans, limits to work, stoppages, and strikes. (at p18)

3. Peko and ADL are both engaged in mining operations in the Northern Territory. Until 1974 and 1975 there were three organizations representing the interests of persons employed by Peko and ADL, namely, MWU, the Amalgamated Metal Workers' Union (and its predecessor) and the Electrical Trades Union. Until some years previously the North Australian Workers' Union had been the third union in place of MWU but, in about 1971, there was an amalgamation and since then MWU has been entitled to enrol as members persons employed in or in connexion with the mining industry, and in or in connexion with the milling, smelting, and refining of ores. (at p19)

4. In 1973 an award was made named the Gold and Metalliferous Mining (Northern Territory) Award, 1973, and that award, subject to variations made from time to time by the Commission, is the current award binding Peko and ADL on the one hand and MWU, the Amalgamated Metal Workers' Union, and the Electrical Trades Union on the other. (at p19)

5. The classes of work allotted to employees eligible to be members of the Amalgamated Metal Workers' Union and the Electrical Trades Union are not the subject of the present troubles. Most of the employees of Peko and ADL, some 400 of them, are employees who fall within the eligibility clause of MWU but there are certain areas of employment which fall within the classes of employee who may be represented by FEDFA and TWU. In the case of Peko, these are winder and stand-by and trainee winder drivers, engine drivers and trainee engine drivers, persons employed in the mine service department, persons employed as storemen, and persons employed on the bagging strip. In the case of ADL, the employees are persons employed as surface plant or mechanical equipment operators and winders or trainee winder drivers. There are other areas of employment where disputes may arise; for example, gantry crane operating and fork lift truck driving. (at p19)

6. In all, there are approximately fifty positions at Peko and ADL which are the subject of the dispute on the question who should represent their industrial interests. For example at the bagging strip at Peko, men are employed spreading concentrates for drying, hand-filling bags with concentrate, sewing bags, stacking bags on to pallets, and loading pallets on to trucks for removal. From time to time it is necessary in the performance of such work for a front end loader, a crane, and a fork lift truck to be used. Until about June 1974 all persons employed in such work were members of MWU or its predecessor organization. MWU claims that such persons should be members of MWU. On the other hand TWU claims that persons operating front end loaders or fork lift trucks should be members of TWU. FEDFA claims that persons who operate front end loaders, fork lift trucks or cranes should be members of FEDFA. (at p19)

7. It appears that in proceedings before Mr. Commissioner Portus in Matter C. No. 3413 of 1975, on 25th November 1975 Peko made a verbal demand directed to resolution of the difficulties but it withdrew that demand on 16th December 1975 and addressed a log of claims to MWU, FEDFA and TWU. The document recited the claims made by the unions against Peko in relation to the operation of power houses and winding engines, mechanical and mobile equipment, motor vehicles and the like operated by Peko in or in connexion with its mining or associated operations in the Northern Territory. It recited how MWU had endeavoured to maintain for its members the work in connexion with all such operations and to have constitutional coverage to enable it to obtain an award to cover all such work. It referred to the existing 1973 award which covered all such work. It then recited that TWU and FEDFA continued to pursue their claims and that Peko was aware of the likelihood of inter-union competition for work and of the desirability to minimize friction and had sought by negotiation to achieve an agreement acceptable to all unions. It referred to the fact that negotiations had taken place but had failed to resolve conflicting claims. Then the following demand was made:
"Peko Mines Limited (the employer) therefore DEMANDS of the Federated Miscellaneous Workers' Union of Australia (the M.W.U.), the Federated Engine Drivers and Firemen's Association of Australasia (the F.E.D. & F.A.) and the Transport Workers' Union (the T.W.U.) that the said unions agree that in the performance of work by employees in or in connection with the mining, milling, smelting and refining of ores at the establishments of the employer in or about Tennant Creek in the Northern Territory, all such work shall be performed by or shall continue to be performed by members of the M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D. & F.A.
The employer further demands that the M.W.U., the F.E.D. & F.A. and the T.W.U. each recognize and accept the right of the employer to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing demarcation.
Without limiting the generality of the foregoing the aforesaid demands include and cover all persons in the employ of the employer principally engaged in the transportation of goods upon public roads by motor vehicle in or in connection with the mining, milling, smelting and refining of ores.
Provided that the aforesaid demands do not include work carried out by boiler makers or any of the following persons engaged or employed in the engineering industry: fitters, turners, machinists, blacksmiths, plumbers, electrical fitters, pattern makers and engineers generally.
The employer further demands that the M.W.U., the F.E.D. & F.A. and the T.W.U. each undertake that it shall not in any way, whether directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the performance of any of the work covered by the foregoing demarcation or in any ban, limitation or restriction which has the effect of limiting, delaying, preventing or interfering with the performance of such work, whether by preventing the handling of goods to or from the mine sites or otherwise and whether any such ban, limitation or restriction as aforesaid involves members of the M.W.U. employed on work the subject of the foregoing demarcation or not.
As the employer in his log of claims is merely formalizing demarcation proposals which have been discussed over a considerable period, the employer asks for a reply to the claims herein within 7 days of the date hereof.
Failing your overall agreement within that time to the claims set out herein the employer will take steps to refer the matter to the Australian Conciliation and Arbitration Commission for determination." (at p21)

8. Demands by ADL in similar terms were made on the three unions by log of claims dated 29th December 1975. (at p21)

9. In late December 1975 and early January 1976 respectively Peko and ADL notified the Industrial Registrar of the existence of an industrial dispute between the respective companies and the three unions

". . . with respect to the following matters:
1. A log of claims has been served by the company on each of the

abovementioned unions. A copy of this log of claims is attached to this notification and marked with the letter 'A'.
2. None of the unions has agreed to the claims within the time specified." (at p21)

10. The matters came before Mr. Commissioner Portus on 29th January 1976. At that hearing it was contended on behalf of TWU and FEDFA that the Commission had no jurisdiction to deal with the alleged disputes and with the failure of the unions to deal with the logs of claims because the logs of claims embodied a claim for compulsory unionism in that, on their proper construction, the logs of claims involved claims for a monopoly in employment by Peko and ADL for members of MWU subject only to the exceptions in the case of the employees whose interests were represented by the Amalgamated Metal Workers' Union and the Electrical Trades Union. (at p21)

11. On 2nd March 1976 Mr. Commissioner Portus made a finding of the existence of an industrial dispute arising from the refusal by the three unions to accede to the demands in the logs of claims. He made this finding on the basis of the construction which he placed upon those logs of claims. He concluded that there was no intention by the language used to exclude non- unionists although there was an intention with the exceptions already stated to exclude members of the unions other than MWU. He thus found the existence of a dispute wherein TWU and FEDFA would not accede to the demand that the three unions agree among themselves that as between themselves but not vis-a-vis non-unionists the delineated work should be performed by members of MWU. (at p22)

12. The question went to a Full Bench under s. 35 of the Act and by majority the finding of Mr. Commissioner Portus was affirmed. It was decided that the demands did not seek, and did not originate a dispute relating to, compulsory unionism but were demands which had arisen from union conflict with respect to specific work and were discriminatory only as to union members. It was said that the demand did not seek to exclude non-unionists from the work and did not claim an embargo upon the work of persons who were non-unionists. It may be noted that it was conceded on behalf of TWU and FEDFA that the validity of the logs would not be affected if the logs permitted a member of TWU and FEDFA to resign that membership and obtain employment with either of the companies without first being obliged to become a member of MWU. (at p22)

13. Prohibition is now sought against the Commission and against Mr. Commissioner Portus prohibiting them from proceeding further in the matters with which they had been dealing. The grounds of the prohibition are as follows:
"(1) The disputes arising from the demands made by Peko Mines Limited and Australian Development Limited are not industrial disputes within the meaning of the Constitution nor within the meaning of Section 4 of the Conciliation and Arbitration Act 1904.
(2) The said disputes are not as to an industrial matter as defined in the said Act. In particular -

(a) they do not pertain to the relations of employers and employees;
(b) they do not relate to any question arising between two or more

organisations or within an organisation as to the rights, status or functions of the members of those organisations or of that organisation or otherwise in relation to the employment of those members;
(c) they do not relate to any question as to the demarcation of functions of employees or classes of employees, whether as between employers and employees or between members of different organisations.
(3) The said disputes are outside the jurisdiction of the said Commission to settle.
(4) The said disputes are in substance disputes about compulsory unionism." (at p22)

14. The question for this Court is whether it was open to Mr. Commissioner Portus and to the Full Bench of the Commission in review of his decision to find that there was an industrial dispute between the parties before him, who were the parties to it, and what were the matters in dispute. So to state is to do no more than to state the duty placed upon the Commission under s. 24 (1) of the Conciliation and Arbitration Act 1904 (Cth). The notification of the dispute to the Commission under s. 25 was not the basis of the jurisdiction of the Commission. It could exercise the power and function of determing whether or not there was an industrial dispute of its own motion if it so desired pursuant to s. 21 (1). (at p23)

15. There could be no doubt that Peko and ADL alleged that there was an industrial dispute and that being so the statutory duty of Mr. Commissioner Portus was to find whether there was any such industrial dispute - not necessarily an industrial dispute in terms framed by the parties, but an industrial dispute. It was for him then to determine the matters in dispute. The same power and function lay with the Full Bench of the Commission on the appeal from the decision of Mr. Commissioner Portus. (Although the review is described as an appeal, it is obviously not a curial appeal because of the nature of the Commission's function.) (at p23)

16. The argument both before Mr. Commissioner Portus and before the Full Bench of the Commission was framed in terms of a difference between the parties on the interpretation of the logs of claims but to regard the function and the power of the Commission in the present case as one limited to construction of the logs of claims is to mistake the primary duty of the Commission under s. 24. Whatever may be the correct interpretation of the language used in the logs of claims when principles of legal interpretation of written documents are applied, the matters in dispute emerged at the hearings before Mr. Commissioner Portus and the Full Bench. The employers, supported by MWU, made no claim of a kind which can be loosely stated to be "compulsory unionism". They were quite specific. They only wanted a resolution of a dispute which they claimed existed in terms of the interpretation which they sought to have put upon the logs of claims. TWU and FEDFA did not then say: "If that is all you want, we accede to the demand." On the contrary, it is quite clear that the real opposition of TWU and FEDFA was to a determination which would exclude their members in favour of members of MWU. (at p23)

17. By the time the proceedings ended before Mr. Commissioner Portus and before the Full Bench, the dispute had crystallized into one which, subject to other arguments, was a dispute on an industrial matter, namely, demarcation of functions of employees or classes of employees between members of different organizations. (at p24)

18. So to regard the matter appears to me to be in accordance with the reality of the industrial situation which was presented to the Commission and in reaching this conclusion it is unnecessary to rely upon s. 60 (2) of the Act; but if there were any difficulty then, in my opinion, it would be quite correct to resort to s. 60 (2). Indeed, the attempt to translate into the area of practical industrial reality the legal principles of interpretation of written documents and technicalities of offer on the one hand and acceptance or rejection on the other shows the field in which such a provision as s. 60 (2) can properly be put to work. It cannot operate where the subject matter is wholly beyond power but it can operate where the subject matter is within constitutional power, as it certainly is in the present case, and the only question is whether it can be regarded as outside statutory power by a reliance on the notion that a finding of the existence of the dispute wholly depends upon the making and rejection of paper demands. (at p24)

19. This is not a case where jurisdiction depended upon the making and rejection of paper demands. It must be borne in mind that the procedures of paper demands which have developed over the years, although in some contexts it has allowed a considerable extension of the jurisdiction of the Commission in circumstances where there is no other evidence of the existence of an industrial dispute, does not delimit or circumscribe the power of the Commission in circumstances such as the present to find whether any, and if so, what industrial dispute in fact exists. (at p24)

20. It is true that before the Commission the matter of interpretation of the logs of claims was the only matter submitted. Sharp J. made this clear when he said:
"It was conceded that if the demands were to be construed as requiring agreement to employment in or in connexion with the mining, milling, smelting and refining of ores at Tennant Creek being open only to members of the FMWU to the exclusion of all others, whether members of other unions or non-unionists, then the appeal must succeed. If, on the other hand, the correct construction of the demands were that they seek agreement to the demarcation of work only as between the members of the three unions, then Mr. Ryan conceded that, on the basis of the majority decision in the Containers Case [1969] HCA 49; (1969) 119 CLR 529 , his appeal must fail." (at p24)

21. But such concessions cannot deprive the Commission of a jurisdiction where in fact circumstances exist which give it jurisdiction. Where in fact there is jurisdiction, the Commission may exercise that jurisdiction even if it makes an error in its reasons for the conclusion that it has jurisdiction or follows an erroneous line of reasoning. (at p25)

22. However, before this Court further grounds have been submitted why there cannot be an industrial dispute even upon the matter of whether as between the three unions, but no non- unionists, all the work described should be performed by members of MWU and not allocated to employees, members of TWU or FEDFA. First, it was said that there was no question as to demarcation of functions of employees or classes of employees because the work was so divided that the members of one union had all the work in fact done by Peko and ADL (other than that done by members of the Amalgamated Metal Workers' Union and the Electrical Trades Union). The result, it was said, is that in the future no members of the other unions could be given employment and that was not demarcation but an impermissible form of compulsory unionism. Secondly, it was submitted that the demands made did not envisage only that the work would be done by members of MWU but would be done by members who were only members of that union and were not also members of TWU and FEDFA, with the result that the companies would be obliged to dismiss members of TWU and FEDFA contrary to s. 5 of the Act. In my opinion neither submission can be sustained. Demarcation of work does not cease to be so because all the work currently performed by an employer is marked down to the members of one union to the exclusion of members of other unions. As to the submission on s. 5, the answer is that the section deals with employment, not work within an employment. It will be for the companies, if indeed they seek an award whereby all their relevant work is performed by members of MWU who are not also members of TWU or FEDFA, to avoid a breach of s. 5. Therefore, even if in fact the respondent companies do make demands in the lastly stated terms s. 5 does not make the demand illegal or otherwise incapable of giving rise to an industrial dispute. (at p25)

23. I would discharge the order nisi. (at p25)

MURPHY J. Australian industry suffers from an excessive number of trade unions with overlapping eligibility for membership. There are obvious advantages in workers having a choice of unions but there are serious disadvantages, including wasteful competition for members and demarcation disputes. (at p25)

2. The organization of trade union representation is incidental to the conciliation and arbitration power (s. 51 (xxxv.) of the Constitution; see Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 ) and of course falls within s. 51 (i.) in regard to interstate and overseas trade and commerce and within s. 122 of the Constitution in regard to Territories. (at p26)

3. The Conciliation and Arbitration Act 1904, as amended, ("the Act") expresses as one of its chief objectives the long-standing legislative policy "to encourage the organisation of representative bodies of employers and employees and their registration under this Act" (s. 2). The legislative policy has also been to avoid the overlapping between organizations which leads to demarcation disputes. Thus, s. 142 of the Act gives power to refuse registration to an association if an organization to which the members of the association might conveniently belong has already been registered (see also Pt VIIIA - Amalgamation of Organizations). (at p26)

4. In the light of these legislative policies, it is most unlikely that the Act would contain implications that it forbids the Commission to arbitrate a claim to exclude non-unionists from certain work or employment (or, as between members of competing unions, to restrict certain work or employment to members of one union). Yet on this basis, the prosecutor seeks to prohibit the Australian Conciliation and Arbitration Commission from exercising any of its functions in relation to such disputed claims and claims support in the decisions of this Court, particularly R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 and R. v. Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53; (1950) 81 CLR 537 . (at p26)

5. The application relates to industrial affairs within the Northern Territory where, under s. 6 of the Northern Territory (Administration) Act 1910, as amended, the Act applies to industrial disputes (except for the omission of the requirement that a dispute extend beyond the limits of any one State). A statutory dispute therefore means a dispute (including a threatened, impending or probable dispute) concerning industrial matters or a situation which is likely to give rise to a dispute concerning industrial matters. Section 4 of the Act states:

"In this Act, except where otherwise clearly intended - . . .
'Industrial matters' means all matters pertaining to the relations of

employers and employees and, without limiting the generality of the foregoing, includes
(a) all matters or things affecting or relating to work done or to be done;

(b) the privileges, rights and duties of employers and employees;
. . .
(h) the mode, terms and conditions of employment;
(i) the employment of children or young persons, or of any persons or

class of persons;
(j) the preferential employment or the non-employment of any particular person or class of persons or of persons being or not being members of an organization;
(k) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons;

. . .
(n) any question arising between two or more organizations or within an

organization as to the rights, status or functions of the members of those organizations or of that organization or otherwise, in relation to the employment of those members;

. . .
(p) any question as to the demarcation of functions of employees . . .

whether as between employers and employees or between members of different organizations;
and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole." (at p27)

6. The claim was for a monopoly of the work for members of the Federated Miscellaneous Workers' Union of Australia ("MWU"), to the exclusion of the members of the other two unions, the Transport Workers' Union ("TWU") and the Federated Engine Drivers' and Firemen's Association ("FEDFA"). No non- unionist was engaged in the disputed work and in the prevailing circumstances there was no prospect of this happening. The employers' claims were not concerned with non-union labour. There was a problem of whether the preference claimed was intended to apply in favour of MWU members who belonged to no other union or also in favour of MWU members who were members of one or both of the other unions. This problem does not affect the Commission's jurisdiction to settle the disputes arising from the non-acceptance of the claims. On either view, these were statutory industrial disputes which concerned "matters pertaining to the relations of employers and employees" and also fell within pars (a), (b), (h), (n) and (p) of the definition of "industrial matters". (at p27)

7. However, the prosecutor contends that the claims should be interpreted to mean the exclusion of non-unionists from employment. Neither the respondent employers nor the Commission put this interpretation on the claims. So interpreted these would (unless the prosecutor's other contentions are correct) still give rise to industrial disputes which concerned "matters pertaining to the relations of employers and employees" and also fall within pars (a), (b), (h), (i), (j), (k), (n) and (p). The prosecutor's contentions (which assume the correctness of this interpretation) proceeded upon the premise that there can be no statutory industrial dispute unless the Commission is authorized to award the claims whose rejection gives rise to the dispute. It then contended that, by reason of s. 47 of the Act, the rejected claims could not be awarded by the Commission. Evatt J., however, held (as a single Justice) in Australian Tramway & Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [1938] HCA 1; (1938) 58 CLR 436 that, although a demand in a log cannot be embodied in an award, it can form the subject of an industrial dispute. He also said (1938) 58 CLR, at p 445 that the decision in Anthony Hordern & Sons Ltd. v. Amalgamated Clothing & Allied Trades Union of Australia assumed rightly that "there was a genuine dispute as to the preference described in the log, notwithstanding that the statute prevented the arbitrator from making an award in the terms of the log" [1932] HCA 9; (1932) 47 CLR 1 . (at p28)

8. In Metal Trades Employers' Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387, at p 405 , Latham C.J. said of s. 40 (the earlier form of the present s. 47):
"The power to grant preference to unionists is not found in sec. 40. That section assumes the existence of such a power and prescribes conditions affecting its exercise. The power is to be found in the definitions of industrial dispute and industrial matters, and in the sections which give the Court jurisdiction to settle such disputes by the method of arbitration."
In R. v. Wallis, Dixon J. said in relation to s. 56 (another form of s. 47) (1949) 78 CLR, at p 553 :
". . . the question what may be the subject of an industrial dispute and the question what powers will be conferred upon the conciliation commissioners to deal with industrial disputes were two distinct matters for legislative consideration. To take a very obvious example, s. 55 forbids the inclusion in an award of provisions requiring a person claiming the benefit of an award to notify his employer that he belongs to an organization or enabling the employer to forfeit any part of an employee's wages. Section 56 deals with a form of remedy or relief that the arbitrator may apply. However widely the definition of 'industrial dispute' may be interpreted it appears to me still to remain true that the specific grant of power made by s. 56 (1) and (2) is inconsistent with an inference that under the general power conferred by s. 38 the conciliation commissioner or arbitrator may wield a much more comprehensive and drastic power upon the same matter or upon matters ejusdem generis."
Again, in Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. (1972) 126 CLR 529, at pp 559-560 ("the Containers Case"), Menzies J., with whom Owen J. agreed, said:
"When . . . a demand is analysed, it must be to ascertain whether it relates to an industrial matter rather than whether, if an award did no more than follow the demand, it would be a valid award having regard to s. 47 . . . Section 47 does not deal with claims; it deals with directions that may be made when an industrial dispute comprehends the matter of preferential employment of certain persons. I think it would be wrong to import the requirements stated in s. 47 into the terms of par. (j) of the definition of industrial matters in s. 4."
There are, of course, statements to the contrary, but in my opinion the meaning of industrial dispute and industrial matters in s. 4 should not be limited by reference to s. 47 of the Act. (at p29)

9. There were thus industrial disputes before the Commission and it was empowered to settle the disputes. Even if the prosecutor is correct in the contention that the Commission may not make an award in terms of the claims, the Commission is not deprived of power to settle the dispute; it would mean that, if the Commission makes an award, it should not grant the claims. If the definition of industrial disputes is limited by the power to make an award, then the absence of power to make an award would also deprive the Commission of power to conciliate (referred to in ss. 18, 26 and 27). Suppose that an industrial claim which was the basis or part of the basis of dispute could not be awarded because of some provision of the Act: the intention of the Act is that the Commission would still be empowered to settle the dispute by conciliation which might lead, for example, to some agreement or modification or withdrawal of the claim (perhaps in consideration of some other concession). (at p29)

10. The prosecutor argues that the grant in s. 47 of a specific power to award preference prevents not only the award of preference in any other way but also the award of what is not preference. But, if what is claimed is preference within the meaning of s. 47, there is an industrial dispute (it was not contended otherwise); if what is claimed is not preference, s. 47 has nothing to do with the case. If s. 47 is confined to what it deals with, it is in practice not very important. (at p30)

11. The correct view of s. 47 is that expressed by Starke J. (in relation to s. 40 of the earlier Act) in Waterside Workers' Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. [1924] HCA 61; (1924) 34 CLR 482, at p 549 :
"That section is not a limitation but an expansion of the authority of the Arbitration Court: it is a substantive grant of authority to the Court in connection with industrial disputes of which it has congizance, whether preference has or has not been put in dispute by the parties, or claimed in the proceedings before it. It may be exerted even after an award has been made, on the application of any organization or person bound by the award, and whenever, in the opinion of the Court, it is necessary for the prevention or settlement of an industrial dispute or for the maintenance of industrial peace or for the welfare of society." (at p30)

12. In the Anthony Hordern Case, Starke J. adhered to the earlier view and stated (1932) 47 CLR, at p 10 :
"Several of the Justices of this Court have expressed the opinion that sec. 40 empowers the Court to grant preference to unionists though preference be not in dispute: Griffith C.J., Isaacs, Higgins and Rich JJ. and I were all, I think, of this opinion, though Griffith C.J. was disposed to think that the provision contravened the Constitution and was invalid (Tramways Case (No. 2) (1914) 19 CLR at p 81 ; Australian Workers' Union v. Pastoralists' Federal Council (1911) 5 CAR 48, at pp 98, 99 ; Waterside Workers' Federation v. Gilchrist, Watt & Sanderson Ltd. (1924) 34 CLR, at p 549 ). An industrial dispute is necessary to found the jurisdiction of the Court, but sec. 40 is valid because it provides a remedy which may be used by the Court for the purpose of preventing or settling industrial disputes. If preference or a minimum wage - the subjects of sec. 40 - be the very matter of dispute, the provisions of secs. 18, 24 and 38 give the Court ample power to determine either. But if neither be the subject of dispute, nor within the range of the industrial dispute submitted to the Court, what is to happen if the dispute cannot be prevented or settled except by provision being made for preference or a minimum wage? Here sec. 40 operates. The remedy may be given by the Court when it makes its award, or at any time thereafter on the application of any organization or person bound by the award."
Evatt J. took the same view, pointing out that to treat the then s. 40 as a limitation upon the general power to settle disputes would deprive the Arbitration Court altogether of power to settle disputes over preference to unions extending interstate in which the disputants were trade and industrial unions not registered under the Act. He described this as an "absurd result" (1932) 47 CLR, at p 16 . (at p31)

13. Section 47 as an ancillary power of the Commission falls well within the legislative competence of the Parliament under pars (xxxv.) and (xxxix.) of s. 51, and of course in relation to the territories under s. 122 of the Constitution. However, the decisions have departed from this early exposition of the preference section as a simple ancillary power. It has become a cancerous growth. (at p31)

14. In the Anthony Hordern Case [1932] HCA 9; (1932) 47 CLR 1 , the Court decided that the general power to settle disputes was qualified so that preference could be awarded (whether there was an antecedent interstate dispute over preference or not) only in accordance with the conditions which were then in s. 40 (that is, to apply in circumstances of "other things being equal" and so as not to affect the children of employers). But in R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 and R. v. Findlay [1950] HCA 53; (1950) 81 CLR 537 , the then s. 56 (from which the restrictions concerning "other things being equal" and the children of employers were delated) was construed in such a way that it affected not only preference but other matters such as exclusion of non-unionists (referred to as "compulsory unionism"). (at p31)

15. In R. v. Wallis, Latham C.J. considered that even if a claim for exclusion of non-unionists was within the words of s. 4 it was impliedly excluded by s. 56, because it was difficult to attribute to Parliament an intention to go further than preference. But definitions in s. 4 apply "except where otherwise clearly intended". Such a meaning is hardly clearly intended in view of the decisions of the early Justices of this Court on s. 40. (at p31)

16. Latham C.J. found support in the former s. 55 for implying absence of claims for exclusion of non-unionists from the definition of industrial matters. Section 55 provided that:
". . . the Court or a Conciliation Commissioner shall not include in an order or award a provision -
(a) requiring a person claiming the benefit of an award to notify his employer that he is a member of an organisation bound by the award."
He said (1949) 78 CLR, at p 544 :
"This provision shows that it was intended by Parliament that an employer should not be placed in a position to differentiate between unionists and non-unionists."
He also referred to the then provisions of the Act which
". . . show that it was intended by Parliament that workers should not be compelled to disclose to an employer whether or not they are members of a union and that an employer should have no right as of course to find out (even by inspecting a list which might or might not be kept up to date) whether they were members of a union or not. These provisions show that, in practice, it would be difficult and almost impossible to give effective operation to provisions for the exclusion of non-unionists." (at p32)

17. In the existing Act, there is no counterpart to the old s. 55 (it was repealed by Act No. 103 of 1956) and the Act provides for a register of members to be kept up to date by a union and copies filed with the Industrial Registrar (ss. 152 and 156) with provisions for inspection. Further, the conclusion that Parliament did not intend to place an employer in a position to differentiate between unionists and non-unionists is not consistent with the preference section, s. 47, which contemplates exactly that. Dixon J. stated (1949) 78 CLR, at p 550 :
"But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."
In the passage cited earlier from the same case, Dixon J. concluded that s. 56 was inconsistent with a more comprehensive and drastic power upon the same matter or upon matters ejusdem generis. (at p32)

18. In relation to the same matter, that is preference, the power in s. 56 was quite comprehensive and drastic. The limiting conditions which were in the earlier s. 40 have been removed. The reference to "matters ejusdem generis" is in my opinion not warranted by the principle of interpretation relied on, which refer to "the same matter". Further, as was stated in Wallis' Case, exclusion of non-unionists is a matter of a different kind from preference to unionists. Thus Latham C.J. said (1949) 78 CLR, at pp 543-544 : "A monopoly of work for unionists, and a fortiori for members of one particular union, and the consequent exclusion of non-unionists or of members of other unions from work in accordance with the terms of an award goes beyond preference to unionists." Dixon J. said (1949) 78 CLR, at p 552 : "the claim is for exclusion, the exclusion from employment of all who do not belong to the Federated Clerks Union of Australia. This goes far beyond preference."McTiernan J. said (1949) 78 CLR, at p 554 : "a demand that the employers should not engage or retain in employment any person who is a member of the union . . . is different from a demand for preference." Webb J. (1949) 78 CLR, at p 556 also distinguished preference from exclusion of persons from employment. In Findlay's Case, Latham C.J. said (1950) 81 CLR, at p 546 : "preference to unionists is different in kind from a monopoly of employment for unionists." Dixon J. stated that a claim that no one except financial members of the union should be employed on work covered by the log did not raise an industrial dispute covering preference in employment to the members of the union (1950) 81 CLR, at p 550 . Webb J. said the award to this effect went beyond preference as commonly understood (1950) 81 CLR, at p 553 . (at p33)

19. The conclusion that "the same matter" (preference to unionists) "is not to be done according to some other course" has thus been used to justify the introduction of an implication that a different "matter" (exclusion of non-unionists) is not to be "done" at all. (at p33)

20. The straightforward construction of the Act which was adopted in the very early cases seems to me to be correct. The departure from it in cases such as R. v. Wallis was based on reasons which are unconvincing to me, and also depended to some extent on an unduly narrow approach to the constitutional power (see R. v. Wallis (1949) 78 CLR, at pp 549-550 ). The result of the construction in R. v. Wallis and R. v. Findlay is awkward, aggravates the atmosphere of technicality in which the Commission has to function and tends to frustrate the Commission's general powers to prevent and settle disputes. The difficulties in its application have been apparent in more recent cases (see the Containers Case). The argument that the legislature, by carrying over the preference section into the new Act, has confirmed the interpretation placed upon it was discounted by Dixon J. in R. v. Wallis (1949) 78 CLR, at p 552 where he described it as: "a somewhat artificial doctrine and the mechanics of lawnmaking no longer provide it with the foundation of probability which it is supposed once to have possessed". Therefore, even if the prosecutor's interpretation of the claims was accepted the Commission would not be deprived of authority to deal with the disputes. (at p34)

21. There can be no question in this case of the Commission exceeding the limits of jurisdiction which the Parliament could constitutionally authorize (because of the plenary nature of s. 122 of the Constitution). In view of Parliament's persistence in attempting as far as it can to prevent this Court's interference with the Commission, I incline to the view (but it is not necessary to decide) that, assuming s. 60 must be read down by reference to s. 51 (xxxv.) of the Constitution when reliance on that power is necessary, the words in the section are not to be read down by reference to s. 51 (xxxv.) when applied to the Northern Territory by virtue of the Northern Territory (Administration) Act. (at p34)

22. The order nisi should be discharged. (at p34)

AICKIN J. In this matter the Transport Workers' Union of Australia (TWU) seeks a writ of prohibition against the Conciliation and Arbitration Commission and Mr. J. H. Portus, a member of that Commission, and against Peko Mines Ltd. (Peko) and Australian Development Ltd. (ADL). Peko and ADL each served on the Federated Miscellaneous Workers' Union of Australia (MWU), the Federated Engine Drivers' and Firemen's Association of Australasia (FEDFA) and TWU a log of claims to cover employment by it of persons in the performance of work "in or in connexion with the mining, milling, smelting and refining of ores at establishments in or about Tennant Creek and adjacent areas in the Northern Territory". Each log states that it arises following claims by the three unions in relation to the operation of power houses, winding engines, mechanical and mobile equipment units, motor vehicles and the like operated in connexion with mining and associated operations in the Northern Territory. It then refers to claims made by each of the unions and to various discussions. The demand made in the log delivered by Peko is a demand made of the MWU, the FEDFA and the TWU that:
"Peko Mines Ltd. . . . DEMANDS of the Federated Miscellaneous Workers' Union of Australia (the M.W.U.), the Federated Engine Drivers' and Firemen's Association of Australasia (the F.E.D. & F.A.) and the Transport Workers' Union (the T.W.U.) that the said unions agree that in the performance of work by employees in or in connexion with the mining, milling, smelting and refining of ores at the establishments of the employer . . . in the Northern Territory, all such work shall be performed by or shall continue to be performed by members of the M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D. & F.A.
The employer further DEMANDS that the M.W.U., the F.E.D. & F.A. and the T.W.U. each recognize and accept the right of the employer to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing demarcation." (at p35)

2. ADL delivered a log of claims to the same three unions in identical terms. The delivery of these logs of claims was followed by notification of disputes. (at p35)

3. On 2nd March 1976 Mr. Commissioner Portus heard argument on the question of whether the logs of claims could be the basis of an industrial dispute for the purposes of the Conciliation and Arbitration Act 1904-1905, ("the Act"). He decided that an industrial dispute did exist between Peko and the three unions and between ADL and the same three unions. An appeal from that finding was made to the Conciliation and Arbitration Commission and on 24th September 1976 the Commission by majority upheld the finding that there was an industrial dispute. (at p35)

4. Section 4 of the Act defines "industrial dispute" as meaning (inter alia) "a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State". For present purposes that definition must be read with the provisions of s. 6 (1) of the Northern Territory Administration Act 1910-1973, which provides:
"The Conciliation and Arbitration Act 1904-1972 applies to industrial disputes in the Territory as if -
(a) from paragraph (a) of the definition of 'Industrial dispute' in section 4 of that Act the words 'which extends beyond the limits of any one State' were omitted;
(b) from paragraph (b) of that definition the words 'which so extends' were omitted; and
(c) from the definitions of 'industrial dispute' in sub- section (1) of section 71 and sub-section (1) of section 81 of that Act the words 'which extends beyond the limits of any one State' were omitted."
"Industrial matters" is defined in s. 4 of the Act as meaning:
". . . matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

. . .
(p) any question as to the demarcation of functions of employees or

classes of employees, whether as between employers and employees or between members of different organizations."
Section 5 (1) (a) of the Act provides as follows:
"An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee -
(a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or . . . "
Section 47 (1) of the Act provides as follows:
"The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order." (at p36)

5. A number of grounds were relied upon in support of the proposition that these logs could not give rise to an industrial dispute. The argument began with reliance on the decisions in this Court in R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 and R. v. Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53; (1950) 81 CLR 537 for the proposition that there is no power to include a provision requiring compulsory unionism in an award. The point may be expressed somewhat differently by saying that if a log of claims demands exclusion from employment of non-unionists then the dispute arising on non-acceptance of such a log is one which the Commission has no jurisdiction to consider. It was said that the present logs required that none of the relevant work be performed by anyone other than members of the MWU. Thus the submission was that the principal demand was an attempt to give a monopoly of work to members of the MWU, excluding not only members of the TWU and members of the FEDFA but also members of any other union and non-unionists, and in addition those members of the MWU who were also members of one or both of the other two unions. (at p36)

6. The second submission was that an award in terms of the log could not be supported under s. 47 because it would give rise to complete exclusion of all employees of the employer who happened to be members of the TWU or the FEDFA. It was said that if the log of claims was concerned only with matters as between the members of the three unions and had no application to or effect upon non-unionists, it still did not give rise to an industrial dispute. (at p36)

7. It was further said that such a clause did not provide for demarcation because, although it purported to define classes of employees for the purposes of demarcation within par. (p), the work was in fact so divided that the members of one union would get it all and non-members would get none. It was contended that such a result was contrary to the decisions in R. v. Wallis and R. v. Findlay. Such an award would be by way of absolute exclusion of all other persons, not preference to the MWU. The employer would be absolutely prohibited by the terms of such an award from employing any other person even if he could not find members of the MWU to do the work. (at p37)

8. For the respondent employers and the respondent MWU it was argued that the case was covered by the decision of this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49; (1969) 119 CLR 529 ("the Containers' Case") and some reliance was also placed on s. 60 of the Act. (at p37)

9. It is first necessary to deal with the meaning of the log of claims in so far as it requires agreement that "all such work shall be performed by or shall continue to be performed by members of the M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D.F.A.". In my opinion those words require the agreement of the three unions that the whole of the work shall be performed by members of the M.W.U., to the exclusion not only of members of the other two unions but also of all other persons whether non-unionists or members of other unions. The addition of the words "and such work shall not be allocated to employees members of the T.W.U. or the F.E.D.F.A." are apt to cover the case of employees who are members of the T.W.U. and/or the F.E.D.F.A. as well as being members of the M.W.U. Grammatically those words qualify the expression "members of the M.W.U." It was argued that the effect of those words was not to deal with the problem of dual membership but to make it clear that the demand did not affect the position of non-unionists. I do not think that the words are capable of bearing that meaning. Logs of claims must of course be construed liberally and not as if they were pleadings, but it does not follow that a meaning may be forced upon them which the words cannot bear. Resort to the context of the dispute points in favour of what I regard as the ordinary meaning because the question of dual membership was an existing problem at Tennant Creek. It was also sought to establish that there would be implied into the phrase "members of the T.W.U. or the F.E.D.F.A." the word "only" after the word "members". I can see no sound reason for reading in that word when the expression involves no ambiguity and in its literal form deals with a known practical problem existing at the time. Moreover such an implication would be unnecessary in view of the preceding words. (at p38)

10. In R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 the Court dealt with an application for a writ of prohibition to prohibit proceedings before a conciliation commissioner for a variation of two awards. In one case the union claimed that the award should be varied so as to include a clause that no person should be continued in employment beyond a period of twenty-eight days from the date of the award unless such person was (a) a member of the Federated Clerks' Union or (b) within the period of twenty-eight days made application for membership and otherwise complied with the membership requirements and that no person should continue in employment for a period beyond twenty-eight days after ceasing to be a member. In the other case the variation sought was the insertion of a clause providing that a register of all persons entitled to be employed as wharf clerks should be kept by the union and that no employer should engage or employ or continue to engage or employ any person as a wharf clerk whose name was not in the register, and that no employer should permit a person not so registered to do the work of a wharf clerk and that no person should be entitled to be registered or remain on the register unless he was a financial member of the union. It was held by the Court that the Act in its then form (1948) did not authorize an award giving a monopoly of employment in an industry to the members of an organization of employees and that s. 56 (now s. 47) did not confer such a power. Latham C.J. said (1949) 78 CLR, at pp 543-544 :
"A monopoly of work for unionists, and a fortiori for members of one particular union, and the consequent exclusion of non-unionists or of members of other unions from work in accordance with the terms of an award goes beyond preference to unionists. The provisions of s. 56 do not authorize more than preference to unionists. They do not enable a commissioner to declare non-unionists black so that they cannot get work in the industry to which they belong. If there is, however, power to exclude non-unionists, the exclusion may be partial or complete. Partial exclusion is preference to others. There would be no rational reason for Parliament carefully prescribing conditions in relation to preference, i.e. partial exclusion, if it were intended that there should be an unlimited power to order complete exclusion in any case. Accordingly, in my opinion, the definition of 'industrial matters' should not be so interpreted and applied as to authorize the making of an award for complete exclusion."
It was argued in that case that the initial words of the definition of industrial matters, quite apart from the specific paragraphs including what is now par. (j), were sufficiently wide to cover a dispute as to whether an employer should be at liberty to employ persons who were not members of the claimant union. Latham C.J. said (1949) 78 CLR, at p 545 :
"In the first place, what has already been said about the specific provisions of s. 56, limiting as they do the power to make an award giving persons a preference in employment, shows that it was not intended by Parliament that this part of the definition of 'industrial matters', any more than pars. (h) (i) (j) and (k) of the definition, should create a power to make an award excluding non-unionists from the possibility of employment."
With respect to par. (j) Rich J. said (1949) 78 CLR, at pp 547-548 :
"The 'non-employment' referred to in s. 4 (j) does not mean a non-employment of employees enforced upon employers . . . The provision challenged in the proposed awards provides for a monopoly in favour of the Federated Clerks' Union and a wholesale exclusion of other persons whether or not members of an organization from a wide sphere of employment and a corresponding obligation on employers to employ only members of the union." (at p39)

11. Dixon J. said that it was not necessary to consider whether there was constitutional power under s. 51 (xxxv.) to authorize a commissioner to make an award embodying a claim by an organization that no one should be employed in a particular pursuit or calling except its members, or its members whom it chose to place upon a list because "I am clearly of opinion that the Parliament has not purported to confer upon him an authority which would extend so far". He said (1949) 78 CLR, at pp 549-550 :
"The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s. 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.
But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."
After referring to various paragraphs in the definition of industrial dispute, he said (1949) 78 CLR, at p 553 that:
"Upon the foregoing the contention is founded that the employment of a class of persons and the non-employment of persons not being members of an organization are contemplated as subjects of dispute and that they are distinguished from preferential employment. Therefore it is said the power to determine the dispute must include making an award or order that there shall be 'non-employment' of all persons who are not members of a particular organization, that is to say forbidding employers to employ them. There are in my opinion two answers to the contention. The first is that the question what may be the subject of an industrial dispute and the question what powers will be conferred upon the conciliation commissioners to deal with industrial disputes were two distinct matters for legislative consideration. To take a very obvious example, s. 55 forbids the inclusion in an award of provisions requiring a person claiming the benefit of an award to notify his employer that he belongs to an organization or enabling the employer to forfeit any part of an employee's wages. Section 56 deals with a form of remedy or relief that the arbitrator may apply. However widely the definition of 'industrial dispute' may be interpreted it appears to me still to remain true that the specific grant of power made by s. 56 (1) and (2) is inconsistent with an inference that under the general power conferred by s. 38 the conciliation commissioner or arbitrator may wield a much more comprehensive and drastic power upon the same matter or upon matters ejusdem generis."
He also rejected the argument that the use of the expression "non- employment" in par. (j) of the definition of industrial matters authorized the particular provision sought. (at p40)

12. McTiernan J. said (1949) 78 CLR, at p 554 that an award purporting really to impose compulsory membership of the union on employees would not be an award in respect of any industrial matter, notwithstanding the terms of par. (j) of the definition in s. 4, because "The gist of the demand is not preference to members of the union but exclusion of persons who are not members of it as a sanction to ensure that all employees are members of the union". Webb J. said (1949) 78 CLR, at pp 555-556 that:
"Section 56 of the Act limits the authority to award preference otherwise given by s. 4 (j), as it limits preference to organizations and members of organizations. It indicates the intention of Parliament that preference should be so limited, notwithstanding the earlier provision in s. 4 (j). But preference does not require the exclusion of non-preferred persons from employment when the preferred class are not available and willing to do the work. That is not the meaning of preference." (at p41)

13. In R. v. Findlay [1950] HCA 53; (1950) 81 CLR 537 the Court dealt with an application for a writ of prohibition prohibiting the enforcement of and further proceedings in respect of a provision in the Clothing Trades Award. The award contained the following provision:
"61. Subject to the provisions of the Re-establishment and Employment Act 1945, the following conditions shall apply in respect of employment in the industry: - (a) In employing and dismissing employees, an employer bound by the terms of this award shall give preference of employment to members of the Clothing and Allied Trades Union of Australia. (b) Without derogating from the generality or operation of sub-clause (a) hereof - (i) An employer who is bound by this award shall not employ any person who is not a member of the said Union if a person who - (1) works in the class of work in question, and (2) is a member of the said Union is available for and willing to accept such employment. (ii) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraphs (1) and (2) of paragraph (i) hereof is available for and willing to accept the employment in question) employ any person who is not a member of the said Union unless the said employer first notifies the said Union by sending a registered letter or telegram addressed to the nearest office of the said Union in the State in which the employee is to be employed that no such person is available for and willing to accept such employment and the said Union does not within forty-eight hours after the receipt of the said notice notify to the said employer by sending by registered letter or telegram the name and address of a member of the said Union who works in the class of work in question and is available for and willing to accept such employment. (iii) An employer who is bound by this award shall not continue to employ any person who is not a member of the said union if - (1) the said Union sends notice by registered post or telegram to the said employer that such person is not a member of the said Union; and (2) such person does not become a member of the said Union within fourteen days from the receipt by the said employer of the said notice; and (3) a person who - (a) works in the class of work in which the said employee works; and (b) is a member of the said Union is available for and willing to accept such employment. (iv) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraph (3) of paragraph (iii) hereof is available for and willing to accept the employment in question) continue to employ an employee for more than fourteen days after the receipt of the notice referred to in paragraph (iii) hereof unless the said employer first notifies the said Union by registered letter or telegram addressed to the nearest office of the said Union in the State in which the said person is employed that no such person is available and willing as aforesaid and the said Union does not within fourteen days after the receipt of the said notice send notice to the said employer by registered letter or telegram of the name and address of a person described in sub-paragraph (3) of paragraph (iii) hereof who is available for and willing to accept such employment. (c) Any notice sent by registered post or telegram pursuant to any of the above sub-clauses shall be deemed to have been received at the time when it would have been received in the ordinary course of delivery by the Postmaster-General's Department."
It was held by the whole Court that a demand for the exclusion from employment of persons not belonging to a given union is not an industrial matter within the definition in s. 4 and, since the only demand in the union log had been a claim for compulsory unionism, and not for preference to unionists, there was no dispute to the settlement of which an award directing preference to unionists under s. 56 (now s. 47) could be appropriate. (at p42)

14. Latham C.J. said (1950) 81 CLR, at p 546 :
"Apart from what has already been said as to the complete ineffectiveness for all relevant purposes of the inclusion of the claim for compulsory unionism in the log, preference to unionists is different in kind from a monopoly of employment for unionists: see Metal Trades Employers' Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387 ; R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 . For this reason the claim for compulsory unionism contained in the log cannot be relied upon to support an award for preference to unionists."
He also said (1950) 81 CLR, at pp 547-548 :
"The legal operation of par. (b) (iii) and (iv) is to require an employer to dismiss a non-unionist upon receipt of a statement from the union that there is a unionist who is available and willing to accept 'such employment'. The award does not purport to provide that a member of a union may be compelled by the union or by a potential employer to allow himself to be nominated for employment by a particular employer, or that he must work for an employer selected by a union officer. It is not suggested that the nominated person is bound to accept the employment or that the employer is bound to employ him. The nominated person may be incompetent or dishonest, but, apart from such considerations, it is clear that the operation of this part of the award does not bring about as a legal result the employment of any person. These provisions operate, as a matter of legal effect, simply to bring about the dismissal of non-unionists and not to secure the employment, preferential or otherwise, of unionists. Such a result cannot be properly described as preference to unionists."
Dixon J. said (1950) 81 CLR, at pp 549-550 :
"To support the clause reliance is placed upon s. 56 (1) and (2) of the Commonwealth Conciliation and Arbitration Act 1904-1949. In R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers this Court decided that s. 56 is the source of the power of conciliation commissioners to make any award or order with respect to a question how far employment is to be available to persons who are not members of an organization. It follows that to be valid a clause dealing with such a matter must conform with the requirements of s. 56. In the present case cl. 61 is attacked as failing to fulfil this condition. But there is a prior question. Before the power given by s. 56 becomes exercisable there must be an industrial dispute of such a kind that a provision under s. 56 in the award is appropriate or relevant to its settlement. I am aware that in Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [1924] HCA 61; (1924) 34 CLR 482, at p 549 Starke J. expressed the view that s. 40 of the Act of 1904-1921 was a substantive grant of authority to the Arbitration Court in connection with industrial disputes, of which it has cognizance, whether preference has or has not been put in dispute by the parties or claimed in the proceedings before it. But I do not think that this view can be pressed so far as to make it unnecessary that an industrial dispute should exist and that the subject of the dispute should be one to which an award of preference may be related as appropriate, incidental or relevant to its settlement. In other words, behind the exercise of the power conferred now by s. 56, there must be a question at issue in a two-State industrial dispute which would support an award of preference. Now in the present case there was no dispute about preference in terms. A log of claims was delivered by the union containing a demand that no employer (subject to the provisions of any relevant Commonwealth law in force) should employ any person on work covered by the log unless such person were a financial member of the union. To this claim the employers did not accede.
Does such a claim raise an industrial dispute covering preference in employment to the members of the union?
In my opinion it does not and for two reasons. The first is that such a demand is for the exclusion of all but members of the union from employment in the industry and such a demand is not in respect of an 'industrial matter' within the definition contained in s. 4 of the Commonwealth Conciliation and Arbitration Act 1904-1949. To fall within that definition the matter must pertain to the relations of employers and employees or else fall within one or other of the paragraphs lettered a to q which follow the general words of the definition. As I read the judgments in R. v. Wallis the Court was of opinion that such a claim pertained, not to the relation of employers andemployees, but to the relation of employees to the union, and that it was not covered by the lettered paragraphs.
This demand in the log was therefore not capable of raising a dispute falling within the Act.
In the second place I think that cl. 61 as framed in the award is outside the demand in the log. It is a detailed provision intricate in its plan and involving a variety of situations. It produces a result substantially different from anything the demand could be regarded as contemplating."
McTiernan J. (1950) 81 CLR, at p 552 said:
"The respondent union demanded in effect that the employers should use their economic power over their employees to compel those who were not members of the union to join it. The power to award preference implies the existence of two groups, unionists and non-unionists. The effect of the union's demand, if conceded by the employers, would have been to eliminate the second group from the industry. When the employers had complied with the demand, members of that group would either have been absorbed by the former group or have been expelled from the industry. It is one thing for a union to demand 'preference': it is another to demand that all the employees shall qualify for 'preference'. The latter demand cuts across the principle of preference to unionists."
Webb J. said, after referring to R. v. Wallis, that the clause of the award was not directed to ensuring an absolute monopoly of employment to unionists (1950) 81 CLR, at p 553 :
"However, it exceeds what, in my opinion, is preference within the ordinary acceptation of the term. Preference, as I understand it, pre-supposes an employer who needs the services of an employee, and who is able to secure those of a unionist who is not only qualified for the particular task but who is also available to perform it when required, which may be immediately. A clause which, like clause 61, has the effect of making an employer await the union's nomination of a unionist, no matter how urgently the services of an employee may be required, and then to select an unqualified unionist, if the union sees fit to nominate one, and which also has the effect of requiring the employer to dismiss a qualified non-unionist and employ in his place an unqualified unionist nominated by the union, might necessarily lead to the termination of an employer's operations. Such a clause is as objectionable as the clauses held invalid in Wallis' Case; and in any event is, I think, also invalid as going beyond preference as commonly understood. It was not submitted for the respondent union that clause 61 should be read down to any extent."
Kitto J. agreed with Latham C.J. and Dixon J. in the conclusion that the commissioner had no power in view of the terms of the dispute to make the award that he had. He went on to deal with the requirements of s. 56 (now s. 47) and concluded that the clause in the award did not comply with that provision because it failed for want of specification of the manner in which preference is to be given. (at p45)

15. The argument for the respondents was that those cases do not apply to the present circumstances because they are governed by the decision in the Containers'Case [1969] HCA 49; (1969) 119 CLR 529 . It is necessary therefore to consider what was the situation dealt with in that case and what was the basis of the majority view which upheld that particular award. (at p45)

16. In the Containers' Case a dispute was created by the non- acceptance of a log of claims made by employers on certain unions which specified the work to be performed at various premises of named employers by members of the unions to which it was addressed. It sought an award under which the unions would recognize and accept the allocation of work by the employers in accordance with the demarcation set out in the log as between the functions to be performed by the members of the relevant unions. It was argued that it was a matter within par. (p) of the definition of industrial matters, as being one "as to the demarcation of functions of employees or classes of employees, whether as between employers and employees or between members of different organizations" and that such a dispute was a matter "pertaining to the relations of employers and employees" within the meaning of the opening words of s. 4 (1) of the Act. It was further argued that a dispute about demarcation, even if determined by reference to membership of organizations, was not a dispute about preference. (at p45)

17. It is thus important to examine the reasoning of the majority judgments in the Containers' Case in order to determine its application in the present case. The terms of the award which were challenged in that case are set out in the judgment of the Chief Justice (1969) 119 CLR, at pp 535-536 . They need not be set out again here but the scheme which is there embodied must be noted. Clause 4 listed four container depots located at specified places in Victoria, New South Wales and Western Australia and conducted by two specified employers. One employer was Liner Services Pty. Ltd. which operated one depot in New South Wales. The other was Seatainer Terminals Ltd. which operated the other depot in New South Wales and the depots in Victoria and Western Australia. The award provided that "the following demarcation of work shall be observed in the performance of work by employees of employers parties to the Award". It then set out the names of the four unions involved and under each name it listed various descriptions of work in or in relation to each of the specified container depots. Clause 5 of the award provided that "Each union party to this Award shall recognize and accept the right of the employers parties to this Award to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing demarcation and shall accept in relation to employment with the said employers the exclusive right of each of the other unions to represent and protect the industrial interest of employees performing the work allocated to the members of the Union in accordance with such demarcation." (at p46)

18. The majority (Barwick C.J., Menzies and Windeyer JJ.) rejected a submission that the dispute was not an "industrial dispute" and did not relate to an "industrial matter" within the meaning of s. 4. Barwick C.J. said that the principal argument was that the award was not an award effecting a demarcation of function as between one workman and another or one class of workman and another class but effected no more than the delimitation of areas of influence or representation of the unions as between themselves. He said (1969) 119 CLR, at pp 539-540 :
"On the other hand, it must be conceded, as I have already indicated, that the assignment by an employer of specific work to an employee to be done in his employment is a matter which pertains to the relations of employer and employee and directly relates to work to be done. It must also be conceded that a dispute between employer and employee, or between an employer and a registered organization of employees, or between a registered organization of employers and a registered organization of employees as to which employee or which class of employee shall be assigned particular work in an employment can be an industrial dispute within the meaning and operation of the Act. Such a dispute may exist between an employer or employers or a registered organization of employers on the one hand and more than one registered organization of employees on the other, for example, where the work to be assigned is claimed by more than one of such organizations to be proper to be performed by employees following some particular trade or calling. More than one of such organizations may have members of the one trade or calling; or some one or more may not have such members but be claiming that the work in question is work to be performed by employees following another trade or calling of which class of employee they have members. In my opinion, an award which settles any such dispute by a demarcation of the functions of particular employees or of a class or classes of employees in an employment would clearly be valid whilst it effects its demarcation by reference to a class of employees, or by reference to a trade or calling, or by sex or by age or by some other description. The identification of the employee to do the specified work by any of these descriptions would not be a departure from the demarcation of function which was the substantive subject matter, and constituted the substantial operation, of any such award. That conclusion, in my opinion, would not appear to be disputed by the prosecutor. Nor would the prosecutor seem to dispute, and in my opinion it could not successfylly dispute, that the employer or registered organization of employers could initiate such a dispute by a suitable log of claims served upon a registered organization or upon several organizations of employees, with respect to the allocation of work amongst its employees or the employees of its members. Whether an employer or a registered organization of employers could thus create a dispute with respect to such of its employees as were not members of any registered organization need not presently be considered for, in my opinion, the log of claims in this matter properly understood seeks only a demarcation of functions as between such of the employees of the respondents as are members of one or more of the respondent organizations of employees."
He also said (1969) 119 CLR, at pp 540-541 :
"In my opinion, the log of claims sought a demarcation of function of such of the employees employed or to be employed by the employers' parties to the log of claims as were members of one or more of the registered organizations of employees upon whom the log was served. It sought no agreement as to the allocation of work amongst other employees. It sought the concurrence of the unions on behalf of their members and on their own behalf to the proposed allocation of work as between such employees. That allocation of work according to membership of an organization contains implicitly a reference to the employees' trade or calling. This, it seems to me, must be so because at least some of the respondent organizations would have members for whom the allotted work would obviously be inappropriate. Thus, for example, a reference to members of the prosecutor in the log and the award is in reality, in my opinion, a reference to transport workers who are members of the prosecutor."
He then rejected an argument that the overlapping of membership eligibility as between the unions concerned prevented the creation of a dispute as to demarcation of function. He then referred to cl. 5 of the log of claims, and of the award and said that, although standing alone it would not represent a demand in relation to an industrial matter, it was nonetheless ancillary to the demand for an agreement as to the demarcation of function of certain of the employees in the employers' employment. "It is in form a clause which presuposes the demarcation to have been made at least in part according to membership of an organization of employees and that there is overlapping in the membership eligibility of two or more of such organizations. The clause, in my opinion, is in its nature, protective of such a demarcation." (at p48)

19. Thus the Chief Justice construed the log of claims and the award as seeking "a demarcation of function of such of the employees employed or to be employed by the employers parties to the log of claims as were members of one or more of the registered organizations of employees upon whom the log was served" (1969) 119 CLR, at p 540 . Accordingly, questions as to compulsory unionism and exclusion of non-unionists did not arise. (at p48)

20. Kitto J. took the view that the log did not relate to an industrial matter as defined in the Act and said that, even if it did, it would be outside the jurisdiction of the Commission by reason of s. 47. Menzies J. concluded that the dispute fell within par. (p) of the definition. He held that the dispute did not relate to preference so as to fall within s. 47 or the limitations flowing from that section, and thus distinguished R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 and R. v. Findlay [1950] HCA 53; (1950) 81 CLR 537 . He regarded cl. 5 as merely providing machinery enabling effect to be given to the award. Windeyer J. held that the dispute was as to an industrial matter as defined. He also held that s. 47 did not preclude the making of the award. He said (1969) 119 CLR, at p 556 :
"The award does not give members of a union a monopoly of employment in an industry to the exclusion of non- unionists: rather, it distributes different phases and parts of the work in an industry among members of different unions." (at p49)

21. Thus the majority of the Court said that the decision in R. v. Wallis had no application to the circumstances. Barwick C.J. said (1969) 119 CLR, at p 546 :
"As I have already indicated, the log of claims, in my opinion, cannot be read as being or including a demand that only members of one of the named organizations shall be employed to do specified work.",
and pointed out that the Court in R. v. Wallis dealt exclusively with questions relating to preference and the effect of s. 47 upon the other provisions of the Act. (at p49)

22. Although the present logs likewise do not expressly seek preference, their nature may be contrasted with the logs and award in the Containers' Case [1969] HCA 49; (1969) 119 CLR 529 . Here each of the logs sought the agreement of the three unions that all work (save certain exceptions) carried out in operations in the Northern Territory for the employer should be performed by members of the MWU and no others, thus excluding all persons members of other unions and all non-unionists. That is something which the majority in the Containers' Case expressly said the award there made did not do. (at p49)

23. In my opinion the logs of claims delivered by Peko and ADL were not concerned with demarcation or distribution of work. One of the effects of those demands, if acceded to or made the subject of an award, would be that when the employer engaged new employees he would be bound to engage only members of the MWU. Such a provision effects neither demarcation nor a preference. Moreover on the construction of the log which I regard as correct, a further effect is that the employer could no longer employ such of its present employees as were members of the TWU, the FEDFA or any other union. The employer would therefore be obliged to dismiss such employees, notwithstanding that to do so would be to commit an offence under s. 5 (1) (a) of the Act. I would regard it as contrary to the provisions of the Act for an award to purport to require an employer to commit such an offence, and such an award would in my opinion be beyond the jurisdiction of the Commission. There is nothing in the Containers' Case dealing with this aspect. (at p49)

24. The critical effect of the logs is that, on either construction of the reference to members of the TWU and of the FEDFA, it requires employment only of members of the MWU. That leaves no room for employment of other persons in any circumstance, present or future. (at p49)

25. Accordingly the present case is not governed by the decision in the Containers' Case and the nature of the alleged dispute must be considered on that basis in relation to the various provisions of the Act. (at p50)

26. Counsel for Peko submitted that the log was in effect "an offer by the employer to subject itself to a condition that if the three unions accept the proposed demarcation of functions as between themselves and their respective members, the employer will exclude non-unionists from the area of employment", a position said to lie midway between those dealt with in Metal Trades Employers' Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387 and Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317 . This argument, even if otherwise sound, which I very much doubt, must fail because that description does not fit the log, in particular because what it demands is not demarcation. (at p50)

27. A further argument on the construction of the logs was that when viewed in the light of the surrounding circumstances they were revealed as being concerned only with the members of the three unions and were not in any way concerned with non- unionists. An examination of the background, as well as the recitals to the demands, shows that the problem confronting the employers was the desire of the MWU to retain or to obtain a monopoly for its members. When discussions broke down, the employers made their demands in the terms set out above. I do not consider that the logs are capable of bearing the meaning contended for or that the background can support the contention put forward. (at p50)

28. It was argued, but faintly, that these logs of claims might, notwithstanding their terms, give rise to a valid award. This is contrary to both principle and authority. If there is no industrial matter in dispute there is no jurisdiction to make any award. This is clearly established by R. v. Findlay [1950] HCA 53; (1950) 81 CLR 537 . (at p50)

29. It was further argued that R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 and R. v. Findlay were distinguishable as being concerned with employees' logs and not employers' logs. No reason was advanced for this distinction and in my opinion there is no such distinction. (at p50)

30. The passages which I have quoted above from R. v. Wallis and R. v. Findlay demonstrate that, as a matter of construction, the Act does not authorize the making of an award requiring compulsory unionism because that is not an industrial matter. These logs of claims fall precisely within the language used by all members of the Court in R. v. Wallis and R. v. Findlay in dealing with logs of claims not materially different in their meaning and operation from those delivered by Peko and ADL. (at p51)

31. For those reasons I am satisfied that there was here no industrial dispute within the meaning of the Act and that Commissioner Portus and the Commission have no jurisdiction to deal with the alleged dispute. (at p51)

32. Counsel for Peko also relied on s. 60 of the Act and contended that the effect of that section when coupled with s. 6 (1) of the Northern Territory Administration Act 1910-1973, as amended, was to make the finding by the Commission that there was an industrial dispute within the meaning of the Act (as modified by the deletion of the words "which extends beyond the limits of any one State") not capable of being challenged in this Court. This argument was said to be supported by an application of s. 15A of the Acts Interpretation Act 1901-1973. In my opinion s. 15A cannot assist this argument. It is true that s. 60 has been treated as not capable of producing the result that this Court's jurisdiction to issue prerogative writs to the Commission is wholly excluded. The use of s. 15A however will not produce a deemed operation which would make a finding by the Commission on the existence of an industrial dispute unchallengeable. Section 6 of the Northern Territory Administration Act 1910-1973 does no more than amend the definition of industrial dispute in so far as the Act applies in the Northern Territory alone. In all other respects the Act applies in the Northern Territory in exactly the same form and manner as that in which it applies throughout the rest of the Commonwealth, with the same tribunals exercising the same and no greater power than they have in relation to industrial disputes within the constitution power conferred by s. 51 (xxxv.) and subject to whatever other constitutional restrictions are generally applicable to the powers of the Commission. As said by Mason J. in Reg. v. Heagney; Ex parte A.C.T. Employers' Federation (1976) 137 CLR, at p 104 , in relation to a submission that s. 24 of the Act empowered the Commission to determine conclusively whether an industrial dispute existed:
"The submission was entirely misconceived, overlooking as it did the circumstance that the existence or threat of an industrial dispute is a jurisdictional fact within s. 51 (xxxv.) and that a tribunal not exercising the judicial power of the Commonwealth cannot be given power to determine such a fact conclusively."
The same is true of the existence of an industrial dispute within the amended definition applicable in the Northern Territory, which is a jurisdictional fact which the Commission as established under the Act has no power to determine conclusively. (at p52)

33. There is a further reason why s. 60 does not assist the contention that the finding of the Commission cannot be the subject of challenge by way of application for a prerogative writ. Sub-section (1) of s. 60 deals with awards and provides that they are to be free from challenge in the manner there set out, including par. (c) which provides that an award "is not subject to prohibition, mandamus or injunction in any court on any account". Sub-section (2) however makes no reference to prerogative writs or injunctions but provides that "a determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question". Not only does the express reference to prerogative writs in sub-s. (1) provide a marked contrast with sub-s. (2) and suggest that sub-s. (2) is not intended to exclude the prerogative writs but the words of sub-s. (2) do not themselves, even in the absence of such a context, suggest an intention to exclude the prerogative writs. The words used in that sub-section are not materially different from those used in the first version of the predecessor to s. 60 (1), namely s. 31 of the Commonwealth Conciliation and Arbitration Act 1904 which provided that "No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever". In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [1910] HCA 33; (1910) 11 CLR 1 those words were held not to be intended to exclude challenge by way of prerogative writs. Since that decision many cases have been decided dealing with the effect and proper construction of privative clauses but none of them appear to me to require a different construction to be applied to sub-s. (2) of s. 60 in its present context. In expressing that view I do not overlook the observations made in R. v. Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 . (at p52)

34. For both those reasons I am of opinion that no reliance can be placed on s. 60 in order to exclude the jurisdiction of this Court to consider whether the relevant jurisdictional fact, i.e. the existence of a dispute about an "industrial matter" as defined in s. 4 of the Act as affected by s. 6 (1) of the Northern Territory Administration Act 1910-1973. (at p53)

35. Accordingly I am of opinion that the rule nisi should be made absolute. (at p53)