Ex parte Professional Engineers' Association
(1959) 107 CLR 208[1959] HCA 47
(Judgment by: Dixon CJ)
Ex parte Professional Engineers' Association
Court:
Judges:
Dixon CJMcTiernan J
Fullagar J
Kitto J
Taylor J
Windeyer J
Subject References:
Constitutional Law (Cth)
Judgment date: 9 September 1959
Sydney
Judgment by:
Dixon CJ
The Association of Professional Engineers, Australia, is an organization of employees registered under Pt VIII of the Conciliation and Arbitration Act 1904-1958 (Cth). To be a member it is necessary to have a professional qualification in engineering. It appears that in October 1956 the Federal Council of the body resolved upon a log of claims to be served upon employers with respect to the salaries to be paid for professional engineering work. The document adopted is that with which this Court dealt in Reg. v. The Association of Professional Engineers of Australia; Ex parte Victoria (1957) 100 CLR 155 The Judgment of the Court contains a full description of the instrument, a discussion of its effect and an account of the classification of professional engineers upon which it appears to be based. It is unnecessary to repeat what is there said. It is enough to say that the log concerns rates of salary and that two minimum rates are specified. For a "qualified engineer" a minimum of 1,650 pounds per annum: for a "chartered engineer" a minimum of 2,200 pounds per annum. These are defined terms; they depend on the attainments and experience of the engineer. The actual rates payable in a particular case are left to the agreement of the parties but there is a demand that the professional engineer should be at liberty to invoke the Association to represent him in the negotiation and of course the rate agreed may not go below the appropriate minimum. The work in respect of which the demands are made is described simply as professional engineering duties but these words are defined to mean "duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) a graduate of The Institution of Engineers, Australia".
There is a long schedule of the recognized qualifications. They are described in the judgment of the Court to which reference has already been made and nothing more need be said about them now. What is important for present purposes is that there is nothing to indicate the place which the performance of these duties may have in industry or to distinguish the kind of employment in which the professional skill of the engineer may be called for or applied. All that is left to experience and general knowledge. The specific application of the log of demands was to be shown only by the choice of the employers or potential employers upon whom the log was served. In fact the document was served upon a large number of bodies and persons in whose service professional engineering duties in the defined sense are performed. These bodies included State Governments, agencies of State Governments, and some municipal bodies. The failure of parties served to reply to or to agree in or comply with the demands, as the case might be, was treated by the Association as evidence of an industrial dispute. For some reason which cannot be said to be self-explanatory the Association adopted the view that a number of divisible industrial disputes arose out of this process of serving the log of demands and obtaining no compliance therewith within a reasonable time. Accordingly, in purported pursuance of s. 28 (2) the officers of the Association gave notifications of the existence of a number of industrial disputes.
In the present proceedings we are concerned with two of these alleged industrial disputes. They were the subject of notifications to the Industrial Registrar made on 8th July 1957 and he numbered the disputes C630 and C631 of 1957. In these two matters many respondents were named having a governmental connexion. In particular they included the Public Service Board of New South Wales, the Public Works Department of that State, the Water Conservation and Irrigation Commission, the Maritime Services Board, the Metropolitan Water Sewerage and Drainage Board, the Department of Main Roads, the Hunter District Water Board, the Electricity Commission, the Housing Commission, the Forestry Commission, the State Coal Mines, all of New South Wales. The Joint Coal Board was included and in addition to other municipal bodies, the Sydney City Council. There were, it is almost superfluous to add, parties in other States served with the log and listed as parties to these disputes. Findings were made under reg. 17 that industrial disputes existed in the two matters between the Association and the employer parties listed in the respective affidavits supporting the notifications. They together with other "disputes" arising from the log came before Mr. Commissioner Portus, but before he could deal with the merits the order nisi for a writ of prohibition was granted which forms the subject of the report already cited (1957) 100 CLR 155 .
That order nisi was discharged on 19th December 1957. The matters again came before Mr. Commissioner Portus and on that occasion an application was made by respondents that the disputes should be heard by the Commission constituted by not less than three members including a Presidential member. The application was made under s. 34, on the ground of the great importance of the matters in the public interest. Eventually a direction was obtained to that effect and on 19th August 1958 the two alleged disputes together with seven others came on to be heard before the Commission composed of five members including the learned President. An objection was then raised and argued that the Commission had no jurisdiction to bind by award, in purported settlement of the alleged disputes, the State of New South Wales or any of the departments or agencies of the State already enumerated. The ground was that the employment of professional engineers by the State or the departments or agencies of government mentioned could not in that character become the subject of an industrial dispute raised by the service of the log of demands and non-compliance therewith.
After a very full argument a majority of the Commission ruled that with certain exceptions the employment of professional engineers by the departments or bodies concerned might or did form the subject of an industrial dispute the settlement of which would fall within the authority of the Commission. The exceptions are these. In the first place the majority of the Commission considered that professional engineering duties performed within the Public Works Department of the State of New South Wales would not be of a description falling within a power to settle industrial disputes. But to that proposition there was a necessary qualification. For it happens that the State Dockyard and the State Brickworks are both carried on under the Department of Public Works and these undertakings seemed naturally to lie within the conception of industrial enterprises so that the employment of any professional engineer therein to perform professional engineering duties in the defined sense might well be considered as subject to the authority of the Commission. In the second place the majority of the Commission were of opinion that the employment of a professional engineer to perform such duties in the Water Conservation Commission could not be subject to the authority of the Conciliation and Arbitration Commission to settle an industrial dispute.
Here again their Honours thought there must be a qualification; for they were not prepared to treat the supply and sale of water as outside the scope of industrial activity. That seemed commercial. But without qualification they considered that it was impossible that employment to perform professional engineering duties for the Metropolitan Water Sewerage and Drainage Board, for the Hunter District Water Board and for the Department of Main Roads should form the subject of an industrial dispute the settlement of which would lie within the authority of the Commission. (at p231)
2. The foregoing represents the conclusion of the President (Kirby J.), of Gallagher J. and of Mr. Senior Commissioner Chambers. Wright J. regarded the whole matter as within the Commission's powers and Mr. Commissioner Portus examined the activities or purposes of the various sections within the departments and agencies in contest and gave a considered list of all the various sections wherein the performance of professional duties would or might be in the learned Commissioner's opinion the lawful subject of regulation by award settling an industrial dispute. The decision of the majority meant of course, on the one hand, a refusal by the Commission to exercise authority with respect to the five departments and bodies last named but, on the other hand, an acceptance by the Commission of authority over the remaining bodies covered by the objection that had been taken. The Association of Professional Engineers thereupon obtained an order nisi for a writ of mandamus commanding the members of the Commission to exercise the authority or jurisdiction that had been refused.
That was not how the order nisi was expressed but it is the effect. The affidavit by which the application was supported sought a mandamus the tenor of which would command the Commission to hear and determine according to law industrial disputes numbered C630 and C631 of 1957 and the order nisi was expressed in that form accordingly. Then on the other side the State of New South Wales and five bodies or agencies of the State which the Commission had held to be subject to its authority to settle an industrial dispute obtained as prosecutors an order nisi for a writ of prohibition restraining the Commission from proceeding to exercise the authority thus asserted. The five bodies are the Housing Commission, the Forestry Commission, the Water Conservation and Irrigation Commission, the Maritime Services Board and the Electricity Commission. The tenor of the writ sought was to prohibit the Commission from proceeding further with the hearing of industrial disputes numbered C630 and C631 of 1957 and the order nisi for prohibition was granted in that form. Finally the Council of the City of Sydney obtained an order nisi for a writ of prohibition in the same terms, qualified however by the words "so far as they" (viz. the industrial disputes) "relate to the prosecutor".
The three orders nisi were argued together before this Court. (at p232)
3. It will be seen from the foregoing account of the proceedings that what is in controversy between the State of New South Wales and its agencies and the Association is the liability of the former to the authority of the Commonwealth Conciliation and Arbitration Commission to determine by award the salaries to be paid to officers of the character of professional engineers.
So far as the State of New South Wales is concerned the question is confined to the departments and agencies that have been enumerated above in reference to the writ of mandamus and the writ of prohibition sought on one side and the other. But both the State of Victoria (on behalf of the State itself and of certain agencies of the State) and the State of Western Australia obtained leave to intervene in the argument and these States supported the contentions of New South Wales. (at p232)
4. In terms none of the learned counsel representing the interests of the States attempted to contest or to qualify the principles laid down in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 as explained in Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319 . In other words there was no denial of the general rule that apart from certain qualifications not presently material, unless the contrary intention appears a legislative power of the Commonwealth is to be interpreted as extending to operations of the States so far as otherwise they fall within the subject matter of the power. And there was no denial of the specific application of the rule to s. 51(xxxv.) of the Constitution which had been made in the Engineers' Case (1920) 28 CLR 129 .
That means that the Parliament may make laws which apply to the States and to agencies of the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. Where the legislation giving authority to the Commission applies it is enough that there is an industrial dispute extending beyond the limits of any one State and it is not an objection to the exercise of the authority that a party affected bears the character of a State or an agency of the State. But while in terms all this was left uncontested by the learned counsel for the States the condition that the dispute must be industrial was insisted upon and the character of the State and the agencies of a State was used as showing that in the case before us the condition could not be fulfilled. Sitting as an Acting Deputy President of the Arbitration Court Starke J. said that officers in the administrative branches of the States, such as clerks in the Treasury, in the Lands Department and in the Law Department are not engaged in, or in connexion with, any industry and are not persons over whom the Commonwealth Arbitration Court could have any authority whatever (Commonwealth Public Service Commissioner v. Government Service Women's Federation (1920) 14 CAR 794 ). This forms an apt contemporaneous statement of the inapplicability of the federal industrial power to the administrative services of the States notwithstanding the interpretation placed upon it in the Engineers' Case (1920) 28 CLR 129 . The fact that prima facie the administrative services of the States do not constitute a description of employment in which an industrial dispute could arise forms the basis of the objection upon which the States rely. It is not an over-simplification to say that in substance the position of the States is that "professional engineering duties" as defined in the log when performed in the departments or bodies enumerated above can never be the subject of an industrial dispute or be governed by an award or determination settling an industrial dispute. But in the argument by which the States attempt to make good this position an antithesis has been instituted between what is "governmental" and what is "industrial". Unfortunately neither of these terms has any very definite meaning and moreover, let the terms be used ever so carefully, it is impossible to fix meanings upon the words which would make them mutually exclusive.
Nevertheless constant resort in the argument to the notion of "governmental function" as a category almost inevitably effected a tacit re-introduction of the same tests of the application of s. 51(xxxv.) to employment by the States or their agencies as were in use before the Engineers' Case (1920) 28 CLR 129 . Indeed this actual but unacknowledged return to old discarded tests went so far that reliance was placed upon the Australian Workers' Union v. The Adelaide Milling Co. Ltd. (1919) 26 CLR 460 , the case which proved to be the last of the successive applications of the doctrine so soon afterwards overthrown by the Engineers' Case (1920) 28 CLR 129 . An attempt under cover of the word "industrial" in this fashion to go back and to re-employ former tests of immunity is quite inadmissible.
There is only one question and that is whether an industrial dispute exists extending beyond one State for the settlement of which it is relevant or appropriate to make an award regulating the terms and conditions of the employment of the Professional Engineers by the State or the State agency or body. The industrial character of a dispute or part of a dispute may be open to doubt, but the resolution of the doubt is not made easier if the supposition is adopted that the "governmental" character of the service is actually inconsistent with its having an industrial character. That which is naturally within s. 51(xxxv.) cannot cease to be so because it is "governmental". It is enough to take a simple example. It may be easy enough to say that a dispute between a State and the officers of the State employed in assessing State land tax is not an "industrial dispute".
As a matter of the use of English terms most people would feel that this must be so and if they were called upon to give an analytic statement of the reasons why, they would say that it stood outside the whole world of productive industry and organized business. They might, by way of contrast with that, point to its governmental purpose. But if they were then faced with the question whether a dispute arising from the demands of lift attendants, office cleaners and the like upon their employers, industrial as otherwise it might be, ceased to be "industrial" when it extended to or affected the land tax office because that was governmental, surely the answer would be that the character of the building could not make a dispute about the wages and conditions of employees doing such work any less industrial. I have not overlooked the fact that in his dissenting judgment in Federated State School Teachers' Association of Australia v. State of Victoria (1929) 41 CLR 569 , at p 584 Isaacs J. distinguished between Crown officials of the State engaged in administering true, essential governmental authority who could not fall within s. 51(xxxv.) and those performing other duties particularly "trading employees". "There is", said his Honour, "a line of demarcation inherent in all British Constitutions which inexorably divides the two classes of cases" (1929) 41 CLR 569 , at p 584. This of course derives through the well-known passage in the judgment of Lord Watson in Coomber v. Justices of Berks (1883) 9 App Cas 61, at p 74, in which the administration of justice, the maintenance of order and the repression of crime are described as being "among the primary and inalienable functions of a constitutional government". But I must confess that it is a line of demarcation which I have never been able to trace for myself in what may be described as the applied constitutional law or practice of today or to discover in legal history. In all the developments of modern times it seems better to read s. 51(xxxv.) of the Constitution without reference to such preconceptions whether well or ill founded and simply to determine whether according to a proper understanding of what the State is doing and the nature of the services the employees who may be in question perform the relevant operations in which it is engaged may be affected by the Commission's award. I should add, with all respect to Isaacs J., that I cannot think that when he applied the word "regal" to what he regarded as essential functions of government, it was a happy choice to convey his meaning; no more happy than the choice of the phrase "corpuscular wealth" in his discussion in the same case of the connotation of industrial dispute. (at p235)
5. The expression "industrial dispute" in s. 51 (xxxv.) of course does not of itself amount to a definition and is in fact merely a descriptive name of the dislocations, differences and tensions among employers and employees which in various forms had grown only too familiar in production, business or other organized work. The varying and sometimes discordant results of the attempts to formulate some inclusive and exclusive definition of "industrial dispute" may be seen in the judgments given in Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508 , particularly in the judgment of Gavan Duffy J. (1919) 26 CLR, at pp 579, 580, 582-584. Until Proprietors of the Daily News Ltd. v. Australian Journalists' Association (1920) 27 CLR 532 and the Insurance Staffs and Bank Officials' Case (1923) 33 CLR 517 it had not been made clear that employment in a form of business involving neither manual labour nor the production or handling of material things, a financial business for example, might form the subject of an industrial dispute, because it was found to be ancillary or incidental to the organized production, transportation and distribution of commodities or other forms of material wealth. Before that it might have been considered that employment in a business could not be the subject of an industrial dispute if, as in banking and insurance, it was concerned directly only with intangibles. However, at length it became clear that the propriety of applying the word "industrial" to a dispute might depend upon any one of a number of factors. If the dispute is about employment to do work of a manual character always it has been regarded as typically industrial and I doubt if it was ever considered necessary to go further.
Indeed that would be a sufficient reason for regarding the dispute as within s. 51(xxxv.) although there was no "industry" or business organized for profit. Thus it was that the Municipalities' Case (1919) 26 CLR 508 brought within the conception a dispute between local councils and a union of employees concerning the making, maintaining, controlling and lighting of public streets. On the other hand the dispute might arise in an industry organized as an undertaking for some productive purpose or some purpose of transportation and distribution. Then whatever the capacity in which a man is employed, however removed he might be from the performance of manual work or labour, he has been regarded as capable of being involved in an "industrial" dispute.
One might not, for example, look upon nursing as in itself industrial but the casualty staff forming part of a very large undertaking would be regarded as involved in an industrial dispute if the undertaking as a whole were dislocated in consequence of a disagreement about the terms and conditions of employment. (at p236)
6. It would be possible to point to many other elements or aspects of disagreements and differences among employers and employees any one of which would or might be considered enough to bring the dispute within the category of industrial dispute. That is because it is natural that such a very wide and flexible phrase should apply according to conceptions of usage and of practical life rather than to some logical connotation or precise analysis. In the State School Teachers' Case (1929) 41 CLR 569 in the judgment of Knox C.J., Gavan Duffy and Starke JJ. the argument is referred to "that if the activities were carried on by a private person, such as a schoolmaster, then the operations would be described as a business, a trade or an industry" (1929) 41 CLR, at p 575. The "operations" are those of the State Education Department. The argument appears to imply that the private schoolmaster would carry on the operation for profit. In other words it seems to have been assumed that possibly it might have been considered enough to bring school teaching within the conception of the industrial organization of society except by those who regarded the intrinsic nature of school teaching as taking the profession completely out of the field of business and industry and out of any category incidental or ancillary thereto. But the close examination to which that judgment in that case was submitted in the argument before us shows that a basal proposition in the judgment is that the occupation which the State school teachers pursued is not by nature industrial; something must be added to it to make it so, as for example, the pursuit of private profit. The sentence that follows is condensed but it is clear - "An occupation confined to teaching in the schools of the States has impressed upon it the character of the activity in which it is exercised" (1929) 41 CLR, at p 575. It means that unless the character of the State educational system makes it so, there is nothing in the profession to bring it within the industrial arbitration power. What precedes these sentences is directed to negativing successively the application of one possible reason after another for saying that a dispute is industrial. (at p237)
7. If one turns from the case of the State school teachers to that of engineers you find that you are concerned with a profession whose province is the higher control of the construction of physical things and the higher control of the application of mechanics, electronics and chemical engineering to the creation, maintenance and operation of material structures and objects.
There is no prima facie reason why the work of the profession should be considered to stand apart from the wide conception of what is "industrial". In other words there is nothing in the nature of the duties usually performed by a "professional engineer" which creates any prima facie presumption that a "dispute" in which he or an association representing him or the interests of his profession is engaged with employers concerning the terms and conditions of his employment should not fall within the description "industrial" as that word is used in s. 51 (xxxv.). One should perhaps add that that means according to the interpretation given to that power by the decisions of this Court.
In considering the present case it is important to bear in mind that there is no prima facie reason to suppose that the employment of a professional engineer is not "industrial" within the meaning of s. 51 (xxxv.).
Important, however, as it is for the purposes of this case to note this point, it is paradoxically enough much more important to grasp the fact that the case made on behalf of the States and their agencies treats it as an irrelevancy. Doubtless they do not concede the correctness of the proposition that prima facie the duties of a professional engineer are such that a dispute with his employers about his salary and conditions of employment will form an industrial dispute. But the case for the States does not turn on the inherent or presumptive character of the professional engineer's duties. It rests on the character or functions of the department or agency he serves. The contention is that these departments or agencies stand apart from the conceptions of the industrial organization of the community and form arms or organs of government in which employees (at all events unless actually engaged in some recognized industrial task) can answer to none of the tests which have from time to time been propounded of what is "industrial" for the purpose of s. 51 (xxxv.). The qualification expressed by the words "unless engaged in some recognized industrial task" means no more than that the proposition in its application is not pushed beyond those whose task is not recognized as industrial. To this extent perhaps it may be said that the nature of a professional engineer's work was used as a foundation for the argument of the States. But all it comes to is that this case is not concerned with actual manual workers in a regular pursuit or calling. It remains true that it is the governmental character of the State department or body that is relied upon as taking the dispute arising from the log of demands outside s. 51 (xxxv.).
Now it must be said at once that the question whether it takes the dispute outside s. 51 (xxxv.) of the Constitution is entirely independent of another question which arises. That other question is whether the statutory definition of the expression "industrial dispute" in s. 4(1) of the Act is inapplicable and whether by consequence the case to some and what extent falls outside the Act by which the Parliament has exercised its legislative power derived from s. 51 (xxxv.). That question ought not to be confused with the States' case under the Constitution and accordingly its consideration will be left until the case for the States under the constitutional power has been dealt with.
Now for the purpose of that case the exact duties of the various descriptions of professional engineers in the service of the Government of the State of New South Wales or its agencies have not been investigated. One reason no doubt is that the case for the State is put on the functions of the departments and agencies of the State and not on the duties of the man. A general notion only has been given of what engineers do in the agencies and departments involved.
It is what the departments and agencies do that has been shown and what a close relation the operations of those departments and bodies have to the central government of the State, its policies and its administration. This I repeat appears to be returning by another route to the doctrine abandoned in 1920. Much may be said, and at the time was said, against the course then taken in abandoning the doctrine that had been pursued. The general propositions expressed in the Engineers' Case (1920) 28 CLR 129 were expressed with a certain emphasis and perhaps copiousness of epithet which no doubt were to be accounted for by the conscious change in fundamental doctrine which the judgment made. At the same time a close study of the text might suggest that it was not without ellipses. Perhaps in these circumstances the reservations and qualifications therein expressed concerning the federal power of taxation and laws directed specially to the States and also perhaps the prerogative of the Crown received too little attention.
These are matters on which I have expressed my views in Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 . But there could be no doubt of the interpretation that s. 51 (xxxv.) received. It simply was that the legislative power conferred by s. 51 (xxxv.) applied to the States and the organs and agencies of the States. Nothing remained, so it has appeared to me, except to determine whether any given dispute arising between a State or the agencies of a State and its or their employees can amount to or be included in an industrial dispute. Since that date interpretations of s. 51 (xxxv.) in respect of other questions have been established which have resulted in a marked widening of the application previously made of the legislative power. Perhaps the most important and far-reaching is the conception given form in Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528 , and the very large extension of that conception in the Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLR 387 . The difficulties which have been felt over the present case are perhaps in no small degree traceable to the almost uninhibited use of this conception made by the framer of the log of demands put forward by the Professional Engineers' Association. For in that log a claim has been made on behalf of professional engineers considered as a class defined by nothing but their qualifications, and moreover the claim has been made in respect of work identified only by the need to possess the qualification in order to perform the work or some part of it. But it is a case where the selection of the parties to be served has also operated of necessity as a further identification of the subject of the dispute. For the department, body, or other employer served with the log of demands was apprised of the intention to insist on the terms and conditions described therein in relation to those performing professional engineering duties in that service. Suppose nevertheless there be persons in the employ of a particular department or agency qualified but doing work which could not fall within the scope of the constitutional power conferred by s. 51 (xxxv.).
Obviously they are not for that reason outside the demand. If the demand creates a dispute in fact based on disagreement they are not outside the dispute, considered independently of its "industrial" character. What they are outside is the constitutional power which would enable the Commission to deal with the dispute so far as it is industrial. But that cannot mean that the dispute so far as it affects all the other professional engineers in that employ and the employ of other employers is outside the power. The dispute so far as it concerns employment within s. 51 (xxxv.) remains subject to the authority of the Commission. Of course all this is hypothetical and it is stated only to bring out more clearly the fact that what we are here dealing with is simply a denial of the possibility of the parties served becoming subject to the authority of the Commission to settle this dispute. We are not following the ramifications of the various services to see if there are professional engineers whose work an award of the Commission could not cover.
This may seem to leave a situation which is administratively very undesirable. If so the discretion of the Arbitration Commission is wide enough to meet it, laborious and intricate as the task of doing so might prove to be. Strange situations arise under s. 51 (xxxv.) but that is a consequence of the peculiarity of the legislative power. The steps which the decisions of the Court took by which the enlargement of earlier conceptions of the power was effected may not have been all necessary but it is useless to attempt to go behind the principles they establish; and it appears to me that it is firmly established that given an industrial dispute to which the jurisdiction attaches there is no constitutional reason why States may not be bound with respect to the employment of persons within the ambit of the dispute. (at p240)
8. It is now possible to go back to the departments and bodies enumerated earlier in this judgment as respectively the subjects of the application for mandamus and the application for prohibition. The first in order is the Department of Public Works. It is almost needless to say that the State Dockyards and the Brickworks, subdivisions or sections contained within the Department, were rightly regarded as, so to speak, belonging to the industrial system and as undeniably forming part of the organization of production, so that no reason existed why an engineer's employment in either subdivision should not be the subject of an industrial dispute extending beyond the limits of any one State. But there is nothing in the character of the Department as a whole to provide a prima facie reason why a professional engineer, being an officer of the Public Works Department, should be incapable in that capacity of falling under an exercise of the power which the Parliament is enabled by s. 51 (xxxv.) to confer upon the Conciliation and Arbitration Commission.
However high a place such a professional engineer may take in the planning of constructional works or in the making of policy concerning them there is no prima facie reason for supposing that his employment is of a kind falling outside the possible application of the conception of an industrial dispute. Investigation of the position of a given man may show that his particular employment could not be the subject of an industrial dispute but, as I have endeavoured to emphasize, the point of these orders nisi is not that this professional engineer or the other professional engineer is engaged in work which lies outside the application of the federal legislative power with respect to conciliation and arbitration to prevent and settle industrial disputes. The foregoing observations are even more directly applicable to the Water Conservation and Irrigation Commission. The distinction between the purposes of the Commission in supplying or selling water and the remainder of its work does not appear to me to be a valid distinction for the purpose in hand but it is hardly necessary to say that the employment of officers in the section of the Water Conservation and Irrigation Commission even more clearly falls under the federal power conferred by s. 51 (xxxv.). All this is true of the Metropolitan Water Sewerage and Drainage Board and of the Hunter District Water Board and is doubly true of the Department of Main Roads. It necessarily follows from what has been said that the Conciliation and Arbitration Commission properly asserted authority and jurisdiction over the Maritime Services Board, the Electricity Commission of New South Wales, the Joint Coal Board and the State Mines Control Authority. As to the Sydney County Council, St. George County Council, Northern Rivers County Council, and the Sydney City Council and the Newcastle City Council there can, in my opinion, be no ground for excluding them from the authority with respect to the alleged disputes of the Commonwealth Conciliation and Arbitration Commission. (at p242)
9. If there be any professional engineer who, applying the principles suggested above, is found to be outside the industrial field because of the character of his individual work, that would be a matter for the Commission to consider in making its award. (at p242)
10. Up to this point this judgment has dealt only with the extent to which the constitutional power enables the Parliament to arm the Conciliation and Arbitration Commission with authority or jurisdiction to make an award binding the States and the agencies of the States. There remains the important and somewhat difficult question of the extent to which in the Conciliation and Arbitration Act 1904-1958 the constitutional power has in fact been exercised in reference to the States and the agencies or organs of the States.
In effect that question is how far the powers and functions entrusted by Pt III of the Conciliation and Arbitration Act 1904-1958 to the Commission are meant to operate in relation to the States. The question depends on par. (c) in the definition in s. 4(1) of the term "industrial dispute". Section (4)(1) contains the definitions upon which the provisions of the Act depend. The definitions are for the most part obviously not designed as restrictive. Their purpose is to extend the application of the jurisdictional provisions of the Act. The definition of "industrial dispute" however begins with the word "means" and that of course operates to give the expression which it introduces an exhaustive effect. But the word "means" governs only two paragraphs of the definition, pars. (a) and (b), and they contain general words covering only the abstract elements which will amount to an industrial dispute, applying equally to natural persons, corporations and States and agencies of States. After pars. (a) and (b) there follow the words "and includes", words which of course make it clear that what follows is not necessarily exhaustive. Three paragraphs follow, pars. (c), (d) and (e). They relate to specific points. Paragraph (c) says that an industrial dispute "includes such a dispute in relation to employment in an industry carried on by, or under the control of, a State or an authority of a State". Paragraph (d) has similar words in relation to the Commonwealth but it is an enactment made as an exercise of the power conferred by s. 52(ii.) and s. 51(xxxix.) of the Constitution and as it is not enacted in reliance on s. 51(xxxv.) the paragraph is expressed to cover disputes whether extending beyond the limits of any one State or not. Paragraph (e) deals with a special question arising from the Public Service Arbitration Act. It is not presently material and it is unnecessary further to notice it. The first question which arises is whether par. (c) is a positive statement which implies a negative. Does it imply that an industrial dispute to which a State is a party is not to be counted as an industrial dispute unless it can be correctly said that there is an industry carried on by or under the control of the State and that the dispute is in relation to employment in that industry? It is of course a question of interpretation. But if the question were answered that par. (c) is an exhaustive statement of the authority of the Commission in a dispute concerning a State, there then must arise the question what is the meaning and application of the expression "an industry carried on by, or under the control of, a State or an authority of a State". The first of these two questions, having regard to the definitions, cannot be satisfactorily dealt with unless the problem involved in the second of them is understood. It will therefore be convenient to deal with the latter at once.
The word "industry" is defined in s. 4(1) as
"including
- (a)
- any business, trade, manufacture, undertaking, or calling of employers;
- (b)
- any calling, service, employment, handicraft, or industrial occupation or avocation of employees; and
- (c)
- a branch of an industry and a group of industries".
Doubtless the word "avocation" is a mistake for "vocation", a mistake so commonly made. If one turns to the definition of "employer" it will be found that the word is defined to mean any employer in any industry and to include any person who is usually an employer in an industry and to include a Club. The word "employee" is defined to mean any employee in any industry and to include any person whose usual occupation is that of employee in any industry. It will be seen that the definition of "industry" depends upon the two words employers and employees, while the definition of those words depends upon the persons to whom they apply being employers or employees in an industry. This circular method of definition is of course logically indefensible but, notwithstanding what was said by Latham C.J. in the State Public Service Case (1942) 66 CLR 488 , at pp 499-501, I do not think that it operates to narrow or exclude the application of the definition of "industry" contained in the three pars. (a), (b) and (c) of the definition in s. 4(1).
The question is, however, whether that definition applies to par. (c) of the definition of "industrial dispute". There is no difficulty in treating a business, trade, manufacture or undertaking of employers as carried on by the State. That is the phrase which results from combining four of the words contained in par. (a) of the definition of "industry" with the words of par. (c) of the definition of "industrial dispute". And as to the fifth word "calling", although the phrase is somewhat awkward there is little difficulty in the conception of a "calling" of employers being carried on by or under the control of the State. When, however, one passes to par. (b) of the definition of "industry", that relating to employees, there is a little more difficulty if in place of the word "industry" in par. (c) of the definition of "industrial dispute" a literal substitution is made of the words used in par. (b) of the definition of "industry". The substitution results in a combination which says "such a dispute in relation to employment in a calling, service, employment, handicraft, or industrial occupation or avocation of employees carried on by or under the control of a State". We know that in the development of the Act these incongruities have arisen from changes in the definitions as they originally stood. But it is right to construe the Act as it now stands. What in effect is the contention for the States is that in par. (c) of the definition of "industrial dispute" you must first reject the definition of "industry" as inapplicable or at all events reject par. (b) of the definition of "industry" and, having done so, construe "industry" in the narrow sense of a business or enterprise or an undertaking regarded as an organized unit. If par. (c) of the definition of "industrial dispute" could be limited to employment in an industry in the narrow sense of such an enterprise or business or undertaking and if the definition were interpreted as applying only to an industry in that sense when carried on by or under the control of the State or an authority of the State and further interpreted as implying that otherwise the Act should not touch the State, then there would be much to be said for limiting the operation of the Act in the way contended for by the State of New South Wales. But one cannot read the definitions without feeling confident that it was not the intention to limit the application of the word "industry" in this way. Plainly the principle it was sought to establish by the definition of the word "industry" was that it would embrace all that might be regarded as an industry from the point of view of the pursuit or craft of the men or the undertaking, the business or the vocation of the employer. It may be clumsy to apply the definitions literally to the State but the general intention is plain enough. The words "carried on" are susceptible of a very extended meaning or application, a meaning or application covering such conceptions as conducting, directing or operating. The word "by" may be regarded as meaning no more than through the instrumentality of the State, while the words "under the control of" refer rather to a less direct relation.
I do not think that a restrictive interpretation can be given to the Act based upon par. (c) of the definition of "industrial dispute". Perhaps the correct view is that no negative is implied by the positive statement contained in par. (c). But in any event it seems to be contrary to the true intention of the provisions of Pt III construed in the light of all the definitions in s. 4(1) if the authority of the Commission to settle the dispute raised by the log by a binding award be treated as insufficient to include any of the departments or bodies that have been enumerated on the ground that the operations for which the department or body is responsible do not answer the narrow conception of a business, an enterprise or an undertaking constituted as a single organized unit. (at p245)
11. For the foregoing reasons the objections to the jurisdiction of the Conciliation and Arbitration Commission appear to me to fail. But it is necessary to restate again that the objections are founded on the character of the State as an employer and of the State bodies as employers. It would not be inconsistent with my decision for the Conciliation and Arbitration Commission to exclude given officers who happen to be performing duties falling within the definition given by the log of the duties of professional engineers on the ground that the officers are not in fact concerned with anything but bare administrative service to the State unconnected with any kind of constructional work or preparation for constructional work or with any other matter which might be regarded as providing a sufficient connexion with operations that might be described as industrial within the meaning of s. 51(xxxv.) of the Constitution. (at p245)
12. There was some discussion at the hearing of the orders nisi as to what possible effect a discharge of the orders nisi without qualification might have in precluding an investigation of some given case, if, for example, an engineer's title to benefit from a future award were questioned. However, it clearly could not preclude any such inquiry by the Conciliation and Arbitration Commission. What operation it might have on issues which the State might otherwise wish to raise in connexion with the form of any award which the Commission may make hereafter is entirely a speculative question. Probably no situation is to be expected in which the question could really arise or matter. (at p245)
13. In my opinion the orders nisi for prohibition should be discharged and the order nisi for mandamus should be made absolute. To make the order nisi for mandamus absolute in its present form requires the Commission to hear and determine the whole dispute, but that is not incompatible with the use by the Commission of such powers as, for example, that conferred by s. 41(d). I would make the order nisi for mandamus absolute as it stands, moulding it in such a way as to admit of a reconstitution of the Commission for the purpose of the hearing of the disputes. (at p246)