Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd
12 CLR 398(Judgment by: BARTON J)
Between: FEDERATED ENGINE-DRIVERS AND FIREMEN'S ASSOCIATION OF AUSTRALASIA
And: BROKEN HILL PTY CO LTD
Judges:
Griffith CJ
Barton JO'Connor J
Isaacs J
Higgins J
Subject References:
Industrial law
Conciliation and Arbitration
Meaning of 'industry'
Organizations
Registration
Employee association
Registration
Effect of
Whether evidence of existence of dispute
Whether municipal corporation exempt from federal legislation
Legislative References:
Conciliation and Arbitration Act 1904 (Cth) No 13 - s 4; s 21; s 40A; s 55; s 57
Judgment date: 27 June 1911
SYDNEY
Judgment by:
BARTON J
Before beginning to discuss question 1 it is well to advert to one of the general rules for the construction of Acts of Parliament, that "the same words must be prima facie construed in the same sense in the different parts of the Statute" (per Chitty J. in Spencer v Metropolitan Board of Works, [F9] at p. 149. In R. v Poor Law Commissioners; In re Holborn Union, [F10] at p. 68, Lord Denman C.J. said for the Court, "We disclaim altogether the assumption of any right to assign different meanings to the same words in an Act of Parliament on the ground of a supposed general intention in the Act."
Of course, the inference from an identity of terms can be rebutted by a context showing that in the instance in question the word or phrase is used in a sense different from that which it conveys elsewhere in the Statute. The Principal Act requires in s. 4 that the meanings there given to a number of expressions shall be attached to them wherever they occur in its provisions, "except where otherwise clearly intended." But it is of course necessary in this as in other cases to interpret the interpretations themselves where argument is raised as to the meaning of any of them; and this task has been undertaken by both parties to the special case.
An "association" is defined as "any trade or other union, or branch of any union, or any association or body composed of or representative of employers or employees, or for furthering or protecting the interests of employers or employees." The distinction between trade or other unions, and associations or bodies representing the interests of employers or employees, is noticeable. It must have been present to the mind of Parliament, as a matter of common knowledge, that a trade union did then, as it does now, often consist of a number of persons grouped together in respect of their pursuit of some one vocation, such as that of carpenters, that of engine-drivers, that of shop assistants or that of carters, while, on the other hand, the employees in a particular concern often did, as they do now, band themselves together, in a union or otherwise, in respect of that concern as an entire and collective undertaking, such as a dockyard, a foundry, a flour-mill, a boot-factory or a colliery. But, as will be seen, it is not every "association" that is entitled to become an "organization" by registering under the Act, any more than every body of men forming a trade union has such a right. "Employer" is next defined as "any employer in any industry," and "employee" as "any employee in any industry"; and as under s. 55 (of which more presently) it is among the requisites to lawful registration as an "organization" that the body seeking to be registered should be an "association of employers in or in connection with any industry," or "an association of ... employees ... in or in connection with an industry," it is convenient to consider now what appears to be meant by an industry in the definitions of "employer" and "employee." Applying the rule of construction already mentioned, we have the term "industry" prima facie meaning the same thing in both of them. If it does, it is used in both to denote the enterprise in which the employer invokes the services of the employee, and which is carried on by their cooperation. An industry, therefore, is looked on as an entirety, existing only by the relation of employer and employee. If any other meaning of an industry can be found which will fit the employee it certainly will not fit the employer. To adopt any other meaning, therefore, would result in applying the word to each in a different sense, which in the absence of a compelling context is against the rule of construction.
Well, is "industry" used elsewhere in any different sense? In the same s. 4, " `Industry' means business, trade, manufacture undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits." It is only because of the employment for pay, etc, that either the employer or the employee is an industry at all. That was plain enough before, but it is the essence of this definition. A reciprocal relation is postulated which shows that the "industry" in which it exists is some enterprise carried on as a concrete whole by an employer with the aid of his employees. The words "calling, service, or employment" are used in the same sense as "business, trade, manufacture, undertaking," to denote the sphere occupied by the exertions of the employer and those whom he employs. They depend for their full meaning, as the earlier words do, on the condition that in them "persons are employed for pay" or other recompense. The thing meant is the whole enterprise; the "service" in which "persons are employed for pay;" and it is that enterprise which an industry is defined to mean. I do not see how it can be urged with reason that in this definition a "business" in which a man is employed for pay, and a "calling" in which he is so employed, are not equally industries in the sense of industrial concerns, or that they are mere vocations of workmen; or that "pay," "hire," "advantage" and "reward" are not equally used to denote the compensation which the employed has from the employer.
The exception of "persons engaged in domestic service" was much relied on in support of a different construction. But it will be seen that the conception of an industry which is evinced in the definition down to this exception is maintained in the rest of the Act, and to adopt the claimants' interpretation of the definition would lead to the dilemma that we must either do violence to these other provisions, or, adopting their interpretation, admit that it is in the very definition of an industry that the term is used in a sense to be disregarded in every other part of the Statute in which it is found. I think then that the exception as to domestic service must be looked on as introduced for more abundant caution, possibly to prevent the supposition that one class of persons engaged in paid work was included in a definition intended to denote whole enterprises in their collective sense. I cannot regard the words as altering or modifying the meaning so plainly conveyed by the prior part of the section. It is a common experience to find in Acts of Parliament provisions added, by way of exception, to sections in the subject matter of which they are not inherent, their proper place being in the category of substantive provisions. In this case, for instance, the object desired could better have been attained by a short clause to the effect that nothing in the Act should apply to the persons comprised in these two exceptions. It is plain that it was intended to exclude them altogether from the operation of the Statute. In 1910 the exceptions were omitted, and after the word "reward" these words were added: "And includes a branch of an industry and a group of industries." As the claimant association was registered in 1908 this alteration does not affect the present question. The definition must be read as it stood in 1908.
The meaning of an industry is further indicated by a phrase in the definition of "industrial dispute," and as it is referred to by my learned brother Isaacs in his judgment in the Jumbunna Case in a passage highly applicable to the definition section [F11] I quote his words:
"An industry contemplated by the Act is apparently one in which both employers and employees are engaged, and not merely industry in the abstract sense, or in other words, the labour of the employee given in return for the remuneration received from his employer. As suggested, not only by the words defining `industry' itself, but also by Schedule B, and by such a phrase in the definition of `industrial dispute' as `employment in industries carried on by or under the control of the Commonwealth,' etc, an `industry' as intended by Parliament seems to be a business, etc, in which the employer on his own behalf is engaged as well as the employees in his employment. Turning to the specific definition of `industry,' it rather appears to mean a business (as merchant), a trade (as cutler), a manufacturer (as a flour miller), undertaking (as a gas company), a calling (as an engineer), or service (as a carrier), or an employment (a general term like `calling'-embracing some of the others, and intended to extend to vocations which might not be comprised in any of the rest), all of these expressions so far indicating the occupation in which the principal, as I may call him, is engaged whether on land or water. If the occupation so described is one in which persons are employed for pay, hire, advantage, or reward, that is, as employees, then, with the exceptions stated, it is an industry within the meaning of the Act."
This view of the meaning of an industry as defined is fully supported by subsequent provisions. Section 7 deals with the refusal or neglect "to offer or accept employment' in cases "where persons, with a view to being associated as employers and employees respectively in any industry, or representatives of such persons, have entered into an industrial agreement with respect to employment in that industry." The word "industry" as used here brings us back to the definition, and elucidates the use of the word in what I have termed its collective sense, as some enterprise or concern in which an employer and a body of employees are mutually engaged, or a number of enterprises of the same kind. Further support appears on consideration of sub-ss. (f) and (g) of s. 38. For though these provisions have been held invalid, they may be looked at as examples of the sense in which the Statute uses the terms "industry" and "industries." I refer particularly to the power to direct within what area or under what conditions a common rule is to bind "the persons engaged in the industry whether as employers or employees." It seems to me plain beyond any reasonable doubt that the industry of the employee must be that of the employer also, for they are both to be "engaged" in it, whether at the moment they are actively prosecuting it or not. The conclusion is confirmed by study of the authority given by s. 41 to enter for purposes of inspection "any building, mine, mine-working, ship, vessel, place, or premises of any kind wherein or in respect of which any industry is carried on," etc Carried on by whom? Obviously by the employer as well as the employees. Carried on where? Obviously in the place or premises in which the one employs the others: and so once more we come back to the definition clause only to find the sense of this section and that of the definitions identified. Such expressions as those quoted from ss. 7, 38 and 41 could scarcely be used in relation to a number of sections of persons performing work of only one subdivision or class in scores or hundreds of concerns not merely widely separated, but widely differing in nature as well as in name, carried on by many employers between whose businesses no identity, nor any resemblance, nor indeed the slenderest tie of common interest exists. How can a number of employers thus diverse and unlike in their aims combine to any purpose for mutual protection in the absence of the common interest which is the very motive of defence? How can conciliation or arbitration operate in the full measure contemplated by the Act under such conditions?
Let us look at the use of the term in the provision made for registration by s. 55. On compliance with the prescribed conditions an association may be registered as an organization, if it be "an association of employers in or in connection with any industry," or "an association of ... employees in or in connection with any industry." (I leave out all words not material to the meaning of an "industry").
Whichever of the two meanings contended for be given to the term, it is clear that the "industry" affords in the contemplation of this section-as I think it does throughout the Act-the nexus of interest which associates the employees on the one hand and the employers on the other. It is with reference to the conditions of that "industry" that either association, if registered, will contest a claim brought by the other before the Court. If the "industry" means the mere calling or vocation of a person, that term does not apply to both parties. If it fits the employees it does not fit the employer. That will appear plainly enough if one attempts to apply it to both in the sense the claimant would give it. But to have a rational meaning in this connection it must be applicable to both. Besides, no context is suggested as requiring a change from the meaning clearly conveyed in the first branch (a) of the section.
"Industry" therefore, as defined in the 4th section, and as used elsewhere in the Act, means a concern or concerns carried on by employers, in which the employees work with the employers for wages or other recompense. It does not mean the mere vocations of sections of workmen not bound together in respect of their connection with an enterprise or enterprises of the same kind, but carrying on, in widely diverse undertakings-for example, "in mines, in timberyards, in factories, in soap and candle works"-one out of the many classes or divisions of work which are necessary for completely constituting and conducting such undertakings. Such sections of workmen may form associations for their mutual support and protection, and nothing that has been said in this case casts a doubt on the legality of such bodies, but they are not associations of employees "in or in connection with any industry" as the term "industry" is used in the Act. A great part of the intention of the Act is that one party may be able to treat with the other-employers with employed-in respect of the conditions of employment in the concerns which are known as industries (I use the word "conditions" in the large sense in which the Act refers to "industrial matters"), or to make agreements with the other party on disputed questions touching such conditions, or failing agreement, to bring the other party before the Court by plaint for its award on the points in dispute affecting the concern or concerns and the interests of either party therein. To facilitate the attainment of these ends, associations, whether of employers or of employees, are permitted on certain conditions to register as organizations in connection with the particular concern or concerns, that is, the industries in which they employ or are employed. But, as has been shown, whatever other conditions may be fulfilled, registration cannot be legally granted to an association unless it exists in or in connection with an industry in the meaning given by the Act to that term. The claimant association here is not composed of employees in connection with any industry within the meaning of the Act. Engine-driving and firing are vocations largely used in a vast number of industries. But for the purposes of this Act, vocations though they are, they do not constitute an industry. The claimant association therefore was not entitled to registration, and I answer question 1 in the negative.
In dealing with question 2 regard must be had to s. 19. The Court is to have cognizance of three kinds of industrial disputes. As there has not been either a certificate under sub-s. (a) or a request under sub-s. (c), and the alleged dispute has been submitted by plaint, it comes under sub-s. (b). But in order to make a valid submission by plaint the claimant must be an organization, sub-s. (b). I take it that must mean a legally constituted organization, for organizations as parties to industrial disputes have no existence save under the provisions of this Act. By s. 4 an " `organization' means any organization registered pursuant to this Act, and so far as applicable it also includes any proclaimed organization to which the Governor-General declares this Act to apply." The claimant association is not a proclaimed organization. It claims a right to sue by virtue of its registration. But if I have answered question 1 rightly, it is not a legally registrable body. Its claim to become a party by submitting a plaint is based on a registration which was given to it without statutory warrant. As it can only exist as a claimant by virtue of a legal registration, the objection is fatal unless the position is saved, as it is said to be, by the certificate of registration as an organization which the Registrar has issued to the claimant association. That certificate is, by s. 57, "until proof of cancellation," "conclusive evidence of the registration of the organization therein mentioned and that it has complied with the prescribed conditions to entitle it to be registered." This point is completely disposed of by the decision of this Court in Carroll v Shillinglaw, [F12] and by the case of Baroness Wenlock v River Dee Co, [F13] cited in all the judgments in the first mentioned case. The certificate of the Registrar is conclusive that all things required by the Act to be done by an association claiming to be registered have been duly done. But it has no greater effect. The Statute has not given to an officer of the Court power to validate anything which is void ab initio , such as the registration of an association which was in its very essence incapable of being made an organization by the fact of registration.
I therefore answer question 2 in the affirmative.
As the claim thus fails upon a fatal objection, answers to the remaining questions are not strictly necessary. The points have become, if I may say so with great respect, academical, and our answers to them will be extra-judicial. Moreover, I share the doubt already expressed whether these are, within the meaning of s. 31 (2), questions "arising in the proceedings," and whether this Court in now pronouncing upon them will not take on itself the functions of an adviser. Nevertheless, my learned brother the President has stated that it will be of value to him in the performance of his duties to have the opinions of the Court, and I therefore venture to give mine, but not as decisions, for, apart from questions 1 and 2, our answers will not now decide anything.
Question 3 has been amended by his Honour so as to include only the two bodies which stand first and second in the list appended to paragraph 5 of the special case.
Mr. Starke, on behalf of these two respondents, contends that they are instrumentalities of the Governments of their respective States, and that as such they can neither be taxed nor regulated by any federal law. As to the first-named body, the Board of Water Supply and Sewerage, reference was made to the New South Wales Act which constitutes it (43 Vict. No. 32), passed in 1880, and to two amending Acts passed respectively in 1888 and 1890. That of 1888 reconstitutes the Board on somewhat altered basis, but its powers and character in respect of the question to be answered remain practically unaltered. They are purely governmental. All the revenues pass into the Consolidated Revenue Fund of the State, and the expenditures are issued from that fund. A responsible Minister, the Secretary for Public Works, is charged with the administration of the Act, and subject to the Act the Board is to be deemed a Public Department of the State under Executive control. The Executive may disallow any act of the Board except a contract already entered into. Claims for compensation are to be made against the Minister, who is to be the nominal defendant in actions for things done by the Board. These and other provisions clearly make the Board part of the State's system of government, and its transactions as clearly cannot be subjected to federal control. As to this respondent, therefore, question 3 must be answered in the negative.
The case of the body incorporated as the Mayor, Aldermen and Citizens of the City of Melbourne imports different considerations. The jurisdiction of the Commonwealth Arbitration Court is questioned by that respondent as to any and every part of its functions. The claimant association contends that the corporation is not exempt in any respect, and that at least its operations under the Electric Light and Power Act 1896 (No. 1413) are such as to entitle the Court to include its employees in an award made in a dispute to which it is made a party. The corporation undertakes, in addition to the ordinary functions of local government, the business of supplying electric light and power to consumers. It is paid for the current that it supplies, and the payments fail into the municipal revenue. In respect of that undertaking it has the same powers and incurs the same obligations as a company carrying on the same business would have and incur. In argument, the question was narrowed down to its bearing upon the corporation's business of electric supply.
Whether in respect of its strictly governmental functions a municipal corporation is immune from federal interference to the extent that the ordinary instrumentalities of State government are immune, or to any extent, is a question which need not be discussed now. For present purposes it may be assumed that Mr. Starke was right in contending that a municipal corporation is a part of the governmental power of the State and therefore immune to the same extent. Is the business of supplying electric current under the conditions stated, when carried on by a local governing body under the authority of State legislation, exempt? As that question may come before us some day for an enforceable judicial decision, any view expressed now is to be taken as extra-judicial and not as final. With that qualification, I am of opinion that such an undertaking so conducted is not entitled to immunity. The rule laid down in D'Emden v Pedder [F14] and other cases is founded on necessity. The functions of government in Commonwealth or State are divided into three great branches-the legislative, the executive, and the judicial. It is of vital importance to the necessary efficiency of government that it should be protected against invasion or encroachment, for the Constitution must be taken to have intended the duration in unimpaired stability of both Commonwealth and State when it created the one and guaranteed the powers which it reserved to the other. To allow the governmental functions of either to be impaired by the other is to undermine either that which was created or that which was guaranteed. This being the basis on which rests the doctrine that the instrumentalities of government must not be interfered with on the one hand or the other, what is the necessity-for every implied power must rest on necessity-for protecting the purely business or trading enterprises of a municipality against federal taxation or the operation of any other admitted federal power? How can it be said that in such a case the functions of government are impaired or its stability threatened? A Government may take purely trading enterprises upon itself; but its necessary function of governing the people is not weakened a jot if, having lost money by trading in commodities, or by manufacturing goods, it sells its stock or its plant, and retains only the duties cast upon it by its Constitution. Nor is its governing authority the less if in respect of its trading or manufacturing enterprises it is compelled like other traders or manufacturers to obey, for instance, a federal regulation of inter-State commerce or to pay a federal tax, imposed with constitutional authority upon the kind of business which it has taken upon itself. Among several American cases cited, that of South Carolina v United States [F15] was the latest bearing on the proposition just stated. It was there held [F16] that the licence taxes charged by the Federal Government upon persons selling liquor are not invalidated by the fact that they are agents of the State, which has itself engaged in that business. This decision, which appears to me to be a very sensible one, was recognized as law in 1909 in the case of Murray v Wilson Distilling Co. [F17] The principle on which it proceeds is equally sound when the question is not one of taxation, but such an one as is now remitted to us. If true in its application to the Government of a State, the principle is at least equally clear when the enterprise is that of a local governing body acting under the authority of State legislation. Our own decision in the Railway Servants' Case, [F18] that a State Railway Service was an instrumentality of State Government, was cited to us. That decision rested mainly on the fact that the Constitution had specially recognized such a service as possessing the character claimed for it. We suggested no doubt at all of the correctness of the decision in the South Carolina Case. [F19]
My opinion is therefore against the claim of the corporation of Melbourne to be exempt from the jurisdiction and award of the Court in respect of its undertaking under the Electric Light and Power Act 1896.
Question 4 asks whether the Court, when at the hearing of an industrial dispute its jurisdiction is brought into controversy, is "bound by any rules of evidence," or whether it may "inform its mind in such manner as it thinks just?" It is argued that the answer to this question depends on s. 25 of the Principal Act, amended in 1910 in immaterial particulars. Is an objection to jurisdiction part of the "hearing and determination" of an industrial dispute, or are those words used in the section to describe only ordinary proceedings within jurisdiction? Probably the latter is the intention of the Act. If that is the true position, there is not much difference in the result. When a hearing is allowed to proceed without jurisdiction, prohibition will lie. As prohibition is not sought by way of appeal, the superior Court does not concern itself with the adequacy of the means which the primary tribunal has adopted to test its jurisdiction, or the technical admissibility of the evidence which it has accepted for that purpose. If the primary tribunal has heard no evidence upon it, the grant or refusal of prohibition will not depend on that fact. But these considerations do not affect the duty, nor should they influence the conduct of the primary tribunal. It is as wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the superior Court. On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.
Question 5 has reference to the construction of s. 31. The language of that provision does not seem to raise any difficulty. It presupposes the existence of a dispute relating to industrial matters. Given that fact, the certificate is to be prim/dc/a facie evidence that the dispute extends beyond the limits of a single State. That is the only fact covered by it. Parliament might easily have prescribed that the certificate should also evidence the existence of a dispute relating to industrial matters, but it has not seen fit to do so, for there is no context to alter the otherwise plain meaning of the words used. If, then, question 5 remained a question in the case, I should answer it thus as at present advised: "As to the first branch of the question, No; and as to the remainder of the question, the certificate is prim/dc/a facie evidence that the dispute, if any exists, is one that extends beyond the limits of one State; and it is not evidence of any other fact."
The final question, numbered 6, places one in a position of some difficulty, as it has become more distinctly hypothetical than number 3, number 4, or number 5. It relates to some provisions which it was proposed to insert in a projected award sought by the claimant association. As there is a fatal objection to the competency of the association as a claimant (see answers to questions 1 and 2) that award cannot now be made, for there is no longer, except in name, any "proceeding before the Court" (see s. 31 (2)). But in deference to the wish of my learned brother the President I will state my impression.
It is not clear on s. 4 of the draft award whether recourse to a Board of Reference is intended to be allowed only when both parties agree to it. If it "may" be had at the will of either party, the other not consenting, the provision purports to have compulsory force. But, as his Honour tells us that recourse is to be optional, we may take it that the appointment of a Board is to take place only with the consent of both parties. But even without such provisions as are suggested, the parties would be at liberty to refer any dispute to persons chosen by themselves, and to give those persons, if they thought fit, the name of a Board of Reference. So far there is only an authority to do that which was already lawful and feasible. There are other terms, but of each of these it is equally true that it might be made a term in such a reference by the parties themselves, though in such case the Registrar's approval of the manner of choosing referees, his certificate of the proper Constitution of the tribunal, his decision in case of an equal division among its members, would all depend on his willingness to undertake the duties mentioned. If, however, s. 4 of the draft award means that any of the matters it contains are conditions to be complied with by the parties in order to be entitled to refer to a Board or Committee any question or dispute arising between them out of the award, or respecting any other matter of their industrial relations, then I think there is no power to insert such conditions in the making of an award. The authority to make an award does not appear to me to imply a power to impose on the parties such limitations of their liberty to agree among themselves to act in a manner not forbidden by any law, after their rights and duties in respect of the dispute brought before the Court have been defined by the award. The learned President expressly disclaims any intention in the drafting of this part of the document to act under the provisions of s. 40A, and it is clear that the terms used are not such as to point to any such intention. Some faint suggestion was made that s. 40A was ultra vires, but the question of its validity was not argued, and indeed it cannot arise on an occasion when no attempt is made to apply it.
On the whole, it seems to me that the proper answer to question 6 is, "Yes, if it be clear that none of the provisions referred to are to be conditions of the right of the parties to refer to persons chosen by themselves any questions arising out of the award or affecting their industrial relations. If otherwise, No." The question as stated does not call for the expression of any opinion on the effect of the provisions in the former event.