R v McKenzie; Ex parte Actors & Announcers Equity [1982] HCA 6; (1982) 148 CLR 573 (12 February 1982)

HIGH COURT OF AUSTRALIA

THE QUEEN v. McKENZIE; Ex parte ACTORS AND ANNOUNCERS EQUITY [1982] HCA 6; (1982) 148 CLR 573

Industrial Law (Cth)

High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Aickin(4) and Wilson(5) JJ.

CATCHWORDS

Industrial Law (Cth) - Conciliation and Arbitration - Industrial dispute - Registered organization - Eligibility for membership - Association to consist of persons employed as actors, singers, dancers, review and circus artists, models, nudes or mannequins - Whether models and mannequins engaged in television or film appearances eligible - Conciliation and Arbitration Act 1904 (Cth), s. 4 (1) - "Industrial dispute".

HEARING

1981, October 9; 1982, February 12. 12:2:1982
PROHIBITION AND CERTIORARI.

DECISION

1982, February 12.
The following written judgments were delivered: -
GIBBS C.J. Before the Court is an application for an order for a writ Arbitration Commission, the Mannequins and Models Guild of Australia ("the Guild") and the Victorian Chamber of Manufactures, prohibiting them from proceeding in matters before the Commission in which the Guild seeks a variation of four awards by inserting therein provisions dealing with "Modelling (Television or Movie Appearances)". Alternatively, an order for a writ of certiorari is sought. The prosecutor, Actors and Announcers Equity Association of Australia ("Actors and Announcers Equity"), seeks the orders on the ground that the Guild is not able to enrol as members any of the persons covered by the applications filed by the Guild and is therefore, in point of law, incapable of creating an industrial dispute and has not created an industrial dispute, in respect of such persons. The question for decision is whether models and mannequins engaged in television or movie appearances are eligible to be members of the Guild. If not, that union will have no power to represent them in an industrial dispute and the Commission will have no jurisdiction to hear the claims for the variation of the awards: see Reg. v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654, at p 666 , and cases there cited. (at p575)

2. The rule of the Guild which deals with eligibility for membership is Rule 3, which reads as follows:
"3. ELIGIBILITY TO MEMBERSHIP: The organization shall consist of an unlimited number of persons employed as Mannequins or Models, Fashion comperes and Fashion Demonstrators excluding such persons coming within the Constitution Rule of Actors and Announcers Equity Association of Australia, together with such other persons whether so employed or not as have been elected Officers of the Association and admitted members thereof."
It is apparent that mannequins and models who are eligible to be members of Actors and Announcers Equity are not eligible to be members of the Guild. The question therefore depends on the meaning and effect of the rule which deals with the conditions of eligibility for membership in Actors and Announcers Equity. The material parts of that rule read as follows:
"The Association shall consist of an unlimited number of persons employed on any contractual, weekly, daily or other basis of employment as actors, actresses, singers, choristers, (excepting members of the Australian Broadcasting Commission's regular wireless chorus in each capital city), dancers, variety, revue and/or vaudeville artists, circus artists, supernumeraries, extras, understudies, showgirls, models, nudes, mannequins, standins, skaters, aquatic performers, comperes, announcers, narrators and stunt men or women, or persons employed for the purpose of commercial display in the theatrical, concert, cabaret, ballroom, hotel, restaurant, club, circus or skating branches of the entertainment industry or in any other place which could be construed to be a place of entertainment, or who are employed as entertainers in any other place, or who are employed in the cinematographic film, television, television film, wireless broadcast recording, commercial wireless broadcasting, or other wireless broadcasting stations, or any other sections of the wireless broadcasting industry, or in the production of gramophone recordings, . . . " (at p575)

3. The industry in connexion with which Actors and Announcers Equity is registered is described in the Certificate of Registration as follows:
"The industry of entertaining the public in any place which could reasonably be construed to be a place of entertainment; and of acting, rehearsing or otherwise appearing in cinematographic films and of entertaining and providing and/or preparing commercial advertising and/or entertainment, and/or making announcements, and/or devising entertainments for transmission by short or long wave or frequency modulated broadcasting (wireless) transmitters, or televisors or for gramophone recordings." (at p576)

4. In the Arbitration Commission, Alley J. reached the conclusion that models and mannequins employed in television or movie appearances came within the eligibility rule of Actors and Announcers Equity, and not within that of the Guild, so that the Commission had no jurisdiction to grant the applications made by the Guild to vary the awards. An appeal was brought to the Full Bench of the Commission which, after hearing further evidence, allowed the appeal by a majority (Mr. Deputy President McKenzie and Cohen J.; Mr. Commissioner Gough dissenting). (at p576)

5. One of the less fortunate results of the operation of the principles enunciated in the cases that have considered the scope of the power to make laws under s. 51 (xxxv.) of the Constitution is that, since a union cannot be a party to an industrial dispute as to industrial matters concerning persons who are not eligible to be its members, the jurisdiction of the Commission in many cases depends on the scope and effect of the provision in the union's rules governing the eligibility of its members. The rules will often have been prepared without the assistance of a skilled draftsman, and will have been amended from time to time by the addition of new classes of employees, with more regard to the practical benefits sought to be gained by the amendment than to the effect which the making of the amendment has on the syntax of the clause. In the result, rules of this kind are often long and complicated, and marked by ambiguity or obscurity. In such cases the meaning of the clause must be determined by the application of the ordinary rules which govern the construction of written documents. However, the words of an eligibility clause which is intended to operate in relation to the conditions of a particular industry may have the meaning which those words bear in industrial usage, even though that is not their ordinary meaning: cf. Reg. v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR, at p 659 ; R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at p 612 . Further, although the conditions of eligibility may validly extend beyond the industry in respect of which the organization is registered, an ambiguity in the eligibility clause may sometimes be resolved by reference to the industry clause: Reg v. Gough; Ex parte Municipal Officers' Association [1975] HCA 30; (1975) 133 CLR 59, at p 69 . (at p577)

6. In the present case the eligibility rule of Actors and Announcers Equity raises two questions, first, whether models and mannequins who appear on television or in movies are all within the introductory words of the rule and secondly, whether, if so, they fall within one of the three adverbial clauses which limit the opening words by describing the place of employment or the industry in which the employees must be employed. (at p577)

7. In the ordinary sense of the word a mannequin is a dressmaker's live model who exhibits new fashions, whereas a model may be either a mannequin or a person who poses for artists and art students. We are not concerned in the present case with models of the latter kind. However, it appears that the word "model", at least, and perhaps the word "mannequin" also, is sometimes applied to a showgirl who displays her clothes, or lack of them, not for the purpose of advertisement, but simply as part of a spectacle or entertainment. Models and mannequins, using those words in the stricter sense, are persons employed to display clothing, accessories or hairstyles for the purposes of advertisement or to appear in advertisements of goods that the models themselves cannot wear or personally display - such as motor cars or refrigerators: almost all commodities are nowadays advertised by the use of models. Models and mannequins may appear before a live audience in a retail store or a wholesaler's display rooms, or they may be the subject of still photographs taken for the purpose of advertisements in newspapers and journals or they may appear in advertisements on television or in movies. A model may be prepared to accept work of all of these kinds, not restricting her availability, for example, to television and movie advertisements. (at p577)

8. When the introductory words of the eligibility rule of Actors and Announcers Equity are examined, it will be seen that the words describe, with a few possible exceptions, persons who fall within a particular class - that of persons employed for the purpose of providing entertainment for others. Actors, actresses, singers, choristers, dancers, variety, revue or vaudeville artists, circus artists, supernumeraries, extras, understudies, showgirls, nudes, standins, skaters, aquatic performers and stunt men and stunt women all clearly fall within that class. The words "comperes", "announcers" and "narrators" have senses wide enough to include persons employed other than in connexion with entertainment, but those words naturally refer to persons employed in the entertainment industry, including of course radio and television. The words "persons employed for the purpose of commercial display" are not altogether easy to understand. However, those words, understood in their natural meaning, do not refer to persons employed to display commercial goods but to persons employed for the purpose of a display which is commercial in character in the sense that it is performed for profit. The words "models" and "mannequins" must be construed having regard to the context in which they appear; they are to be known by their companions (Scales v. Pickering (1828) [1828] EngR 336; 4 Bing 448, at p 453 [1828] EngR 336; (130 ER 840, at p 842) ) and should therefore be understood as referring only to the persons of the class which the other words describe, i.e., to models and mannequins who are employed for the purpose of entertainment. A model or mannequin who is employed to act or otherwise perform or simply to provide spectacle by her presence at an entertainment is within the rule. One who is employed simply to appear in a television or movie advertisement is not. (at p578)

9. If this conclusion were incorrect, the question would arise whether models and mannequins employed to appear in television or movie advertisements would come within one of the three qualifying adverbial clauses which appear in the eligibility rule. Only the third of those clauses is relevant. It is ungrammatical and it appears necessary to supply the word "industry" after the words "cinematographic film, television, television film". Perhaps it was intended that the word "industry" in "other sections of the wireless broadcasting industry" would govern those words as well as those that immediately precede that phrase, but it does not seem apt to do so. It is doubtful whether a model, who during the ordinary course of her employment is engaged in public modelling displays, in producing photographic stills and also in producing television advertisements, can be said to be employed in the television industry. The fact that she provides services for that industry does not mean that she is herself employed in it. The decision of this Court in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 , appears to support that view. In that case it was held that employees of catering companies, which under contract with mining companies performed catering and other services for the latter, were not employees in, or in connexion with, an industry of mining. However, it is not necessary to express a concluded opinion on this question since, for the reasons already given, models and mannequins engaged in television or movie advertising are not eligible to be members of Actors and Announcers Equity. (at p579)

10. The industry clause in the rules of Actors and Announcers Equity does not provide assistance in construing the eligibility clause, because it refers not only to entertainment but also to the provision and preparation of commercial advertising. On either view of the eligibility clause, it would be consistent with the industry clause. (at p579)

11. The conclusion which has been reached is supported by the fact that if models and mannequins engaged in television or movie advertising were within the scope of the eligibility clause, the anomalous result would follow that a model might be represented by Actors and Announcers Equity on one day, when she was engaged on working to produce a television or movie advertisement, but not on the following day when she was displaying clothes before a live audience or being photographed to produce an advertisement for publication in a journal. It is also supported by the evidence that, in industrial usage, a distinction is drawn between models and mannequins who are employed to advertise goods, and those who are employed to take part in public entertainments. (at p579)

12. For these reasons I consider that the majority of the Commission were correct in understanding the eligibility clause of Actors and Announcers Equity not to include models and mannequins employed in making television and movie advertisements, although mannequins and models engaged in the television or movie industries for entertainment purposes are within the scope of the clause. It follows that the Guild is entitled to represent some models and mannequins who make television or movie appearances and that the applications to vary the awards were not in that respect beyond the jurisdiction of the Commission. No argument was submitted to us in relation to the question whether the applications for variation were within the ambit of the logs of claims upon which the awards were made. (at p579)

13. For these reasons I would refuse the application for prohibition or certiorari. (at p579)

MASON J. I would refuse this application for the reasons given by the Chief Justice. (at p579)

MURPHY J. The relevant parts of the rules of the two competing organizations of employees, the Mannequin and Models Guild of Australia ("the Guild") and the Actors and Announcers Equity Association of Australia ("the Association") have been set out by the Chief Justice. I agree with his conclusions. The rules are mutually exclusive in relation to models and mannequins. One resolution of the competing claims is that the Association is entitled to enrol all models and mannequins. This resolution, even if justifiable on a literal reading of the rules, does not accord with the industrial experience in this field and is not, as I understand, sought by the Association. The problem should be resolved along these lines. The models and mannequins contemplated by the Association rules are those engaged in entertainment for entertainment's sake, show business, acting in which the focal point is generally the personality of the entertainer, the showperson, the actor. Even where the emphasis is on costumes, as in an extravaganza, the purpose is not sale but entertainment. By contrast those engaged in displaying goods or clothes for sale (or hire or other commercial purpose such as promotion) are within the scope of the Guild's rules, and not the Association's. The clothing or other goods are the focal point, not the personality of the person showing them. Even where a well-known person displays goods, this is in order to direct attention commercially towards the goods. A certain amount of walking, turning, kneeling etcetera (on a catwalk for example) has been traditionally involved in such modelling. It matters not that the modelling is done through newspaper advertisements, television showings or "in person"; it qualifies under the Guild rules. The model in a newspaper advertisement is not engaged in the newspaper industry. Nor is a model in a television advertisement engaged in the television industry, just as a politician whose picture appears regularly in newspapers or who appears frequently on television is not so engaged. However work which apart from the outlined activities distinctly involves acting is outside the scope of the Guild's rules. As in many other areas this may present fine lines of demarcation which can be resolved by the common sense of the organizations, or if not, by the Australian Conciliation and Arbitration Commission. The onus here is on the Association to show that the Commission was incorrect in deciding that the Guild is entitled to represent persons engaged in the disputed work, and to seek an award in respect of that work. It has failed to discharge that onus; the application should be refused. (at p580)

AICKIN J. I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree with those reasons and the conclusion that the application should be refused. (at p580)

WILSON J. I would refuse this application for the reasons given by the Chief Justice. (at p580)

ORDER

Application for writ of prohibition or certiorari refused.