Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd
12 CLR 398(Judgment by: O'CONNOR J)
Between: FEDERATED ENGINE-DRIVERS AND FIREMEN'S ASSOCIATION OF AUSTRALASIA
And: BROKEN HILL PTY CO LTD
Judges:
Griffith CJ
Barton J
O'Connor JIsaacs 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:
O'CONNOR J
The first matter on which the learned President has asked the opinion of the Court is whether the claimants can be lawfully registered as an organization under s. 55 of the Commonwealth Conciliation and Arbitration Act 1904. The point raised involves the principle of grouping employees for the purposes of the Act, and if the objection taken by the respondents is good, not only must their claim be dismissed, but the validity of all organizations whose members are associated on the same basis is brought into question. In the answering of this question I regret that I cannot take the same view as my learned colleagues who have preceded me.
The claimant organization consists of persons following the calling or employment of land engine-drivers and firemen, including also those engaged in the incidental occupation of cleaners and greasers. The engines on which the members are employed are worked in mines, timber yards, tanneries, soap and candle works-indeed in every variety of business or undertaking in which steam power is used. In whatever business or undertaking a steam engine is used, the work of those who drive and attend to it is substantially the same. Having thus their industrial interests in common, the members of the claimant organization associated themselves together, and sought and obtained registration under the Act of 1904. The respondents object to the registration as being illegal and of no effect, alleging that the claimants are not an association of employees "in or in connection with an `industry,' " within the meaning of s. 55 (1) (b). The contention is that the definition of "industry" in s. 4 describes the business, undertaking, trade, calling, or employment of the employer only, that registration of employees is permitted only to associations of employees whose employers are engaged in the same class of production, manufacture, construction, or undertaking, and that a group of employees, associated as in the present case merely by reason of their following the same trade or calling, irrespective of the branch of industrial activity to which their labour is applied, cannot be registered as an organization. Upon this objection the claimants naturally ask in what way can persons of their vocation, engaged in driving and firing engines in many different branches of industrial enterprise, be associated so as to entitle them to be registered as an organization-for some meaning must be given to the provisions of s. 55 which enables employees to be registered as an organization.
The respondents answer that the section, properly construed, enables the members of the claimant organization to be registered, if associated according to the branch of industrial enterprise in which their employers are using their services. For instance, persons driving and firing engines in coal mines may be associated and registered as employees in the coal mining industry, or as drivers and firemen of engines in the coal mining industry. Persons similarly engaged in saw mills may be associated and registered as employees in the saw mills industry or as drivers and firemen in that industry. Those doing like work in engines used in tanneries may be associated and registered as tannery employees or as drivers and firemen of engines in the tanning industry. But they contend that the Act does not enable persons driving and firing the engines used in these different processes of production and manufacture to associate and register themselves as one organization.
The claimants, on the other hand, argue that that interpretation does not give full effect to the language of the legislature; that s. 4 expressly assigns two alternative meanings to the word "industry"; that it defines "industry" by words which include the trade, calling or employment of the employee, as well as the business or undertaking of the employer; that engine-driving and firing is in that sense an industry within the meaning of sub-s. (1) (b), and that an association of not less than 100 engine-drivers employed in that calling may register as an organization, although they may be driving engines used in different businesses, trades and undertakings.
It is of course open to the legislature to provide for the registration of employers and of employees on any basis they may think fit, and in order to determine whether the claimants are a valid organization under the Act it becomes necessary to learn from the language which the legislature has used what is the basis on which it intended to enable organization of employees to be registered.
The first rule of all to be applied in construing a Statute is to ascertain the intention of the legislature from the words it has used, reading them in their ordinary natural sense in the context in which they stand, and giving to every word as far as possible its full meaning.
Before applying the rule to any particular section, it is necessary to understand clearly the subject matter with which it is concerned. The scheme of the Commonwealth Conciliation and Arbitration Act is to settle industrial disputes by bringing to bear the powers of the Arbitration Court on employers singly or organized, and on employees associated and registered under the Act. Section 55 dealing with the registration of organizations provides in one and the same section for registering associations of employers and associations of employees. It will be noted throughout the Act that the words "employer" and "employee" are not always used to describe an existing relationship of employment. They are sometimes used merely as words of classification, to describe the genus employer and the genus employee. The sense in which the terms are to be understood in each section depends upon the context and the subject matter. Turning to s. 55, it is obvious that it cannot be construed without knowing the meaning in which the words "industry" and "employer," and "employee," are therein used. It is necessary therefore to examine the definition of these terms in s. 4. The paragraph interpreting "industry" is as follows:
"'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."
Each word of description must be taken in connection with the qualifying words "in which persons are employed for pay," etc The definition therefore reads:" `Industry' means `business' in which persons are employed for pay, manufacture in which persons are employed for pay," etc The first four words to which I have referred, grouped together as they are, may be regarded as specially applicable to "industry" from the employer's point of view. They describe the particular branch of industrial activity in which the employer is using the labour of his workmen.
Taking the remaining words of description with the same qualifying words, the definition reads:" `Industry' means `calling' in which persons are employed for pay, hire, etc., `service' in which persons are employed for pay, hire, etc., `employment' in which persons are employed for pay, hire, etc." The latter words are especially appropriate to describe the employees occupation. It may be conceded, for the purposes of argument, that the words "calling" and "service" are capable of being used to describe the employer's business, trade, or undertaking also; whether that is so or not, it is to my mind clear that the words "calling ... in which persons are employed for ... hire," taken in their natural meaning, describe in ordinary language the occupation by which an employee earns his living. If it became necessary to describe in a few words a land engine-driver's daily occupation, I do not know words in which it could be more fittingly described than to say "he is employed in the calling or in the employment of a land engine-driver." The respondents' contention is that the words "calling, service, or employment" standing in their context cannot be read otherwise than as describing the employer's side of industry only. The same view is put by my brother Isaacs in some observations of his with reference to the same words in the same section, in the Jumbunna Case, [F20] at p. 370, he says:"... 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." This view, which my learned brother then referred to as the "narrower view," was not the ground on which his judgment in that case proceeded. The observations are merely obiter dicta , and I have quoted them merely as expressing concisely the respondents' contention in the present case. In construing a Statute it must be conceded that, prim/dc/a facie, full value, as far as possible, should be given to every word the legislature has used, and that where it is sought in an enabling and remedial Act, such as that now under consideration, to give to its words a meaning more restricted than that which they ordinarily bear, thereby narrowing the operation of the enactment, some good ground must be shown for such an interpretation. In my opinion no ground has been put forward which could justify the narrow interpretation upon which the respondents in this case are insisting. One argument very much pressed was that, in every other part of the Act except sub-s. (1) (b) of s. 55, the word "industry" was used in the sense of industry from the employer's point of view. Where we are dealing with a section in which the legislature itself explains by definition the sense in which a particular word is used, that argument is of little value even if well founded with regard to other sections. But it is not well founded, and with respect to several sections it amounts to a begging of the question. Take, first, the definitions of "employer" and "employee." If the claimants' interpretation of the definition of "industry" is adopted, both aspects of industry are there referred to. The same may be said of the first paragraph of s. 38 and of s. 41. In each of the other sections in which the word is used it is clear that "industry" from the employer's point of view is the subject matter of the section. In no part of the Statute is there the least indication that the words defining "industry," the words which to a large extent fix the limits of the Statute's operation, have been used by the legislature in any other than their ordinary meaning.
These considerations lead me to the conclusion that the definition of "industry," taken as a whole, recognizes the difference which exists in fact between the relation of the employer and the relation of the employee to all industrial operations, and in clear language declares that for the purposes of the Act the word "industry" is used to describe both the industrial enterprise in which an employer is employing labour, and the vocation which an employee follows for a living.
Turning now to s. 55, it is obvious that in paragraph (1) (a) "industry" means the class of industrial enterprise to which the employer's business belongs. The common interest, for the protection of which the associated employers combine, is that which arises from their employing labour in carrying on the same class of industrial enterprise. "Employees" in that paragraph necessarily means persons between whom and the employers, seeking to be registered, the relationship of employer and employee has existed. Those are the meanings which the context makes it necessary in that paragraph to give to the words "industry" and "employee" respectively. It is clear to my mind that in the succeeding paragraph "industry" is not used in the same sense. In that context "employee" describes a class-the class of persons following a vocation. It is not used to indicate any existing relation of employment with any employer. The industrial interests, for the purpose of protecting and advancing which an association of employees combines, are the common interests of the workers in the same vocation. Whether workers in the same vocation follow it in one or in many different phases of industrial enterprise their common interests are the same. The subject matter of that paragraph indicates therefore that the meaning of "industry" applicable in that connection is industry from the employee's point of view-that is, the vocation by which the employee earns his living. Thus interpreted the paragraph enables employees in the same vocation to associate and register themselves as organizations in such groupings as they may deem best for the advancement and protection of their common interests.
I have therefore come to the conclusion, without the aid of any extraneous considerations, that the words of the sections to which I have referred, read in their plain, ordinary meaning, permitted the registration of the claimants as an organization.
But let me try the soundness of the respondents' contention by another test. I shall assume for the purpose of argument that the words of the enactment are not clear, that there is an ambiguity in the definition of "industry" which makes that word capable of being read either in the wider sense which justifies the claimants' registration, or in the narrower sense which makes the registration invalid, and I proceed to inquire which of these meanings will best effect the purpose of the legislature.
In order to ascertain in such cases the real intention of the legislature from the language it has used the rule of construction laid down by the Barons of the Exchequer as far back as 1584 in Heydon's Case, [F21] at p. 7b, and since followed in innumerable cases, may well be applied. The rule is stated as follows:
"That for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:(1st) What was the common law before the making of the Act? (2nd) What was the mischief and defect for which the common law did not provide? (3rd) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth. And (4th) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
The Statute now under consideration was passed in 1904 in pursuance of the authority, conferred by the Constitution, to make laws for the prevention and settlement, by conciliation and arbitration, of industrial disputes extending beyond the limits of any one State. At that time, in some of the Australian States, laws were in actual operation for the prevention and settlement of State industrial disputes. Between those industrial disputes and the industrial disputes with respect to which the Commonwealth Parliament has power to make laws there is substantially no difference, except in the extent of the industrial disturbance. The State had jurisdiction to deal only with industrial disputes within its boundaries. But industrial disputes of grave moment to employer and employee extended sometimes beyond a State boundary, and there was no power other than the Commonwealth Act was passed for the purpose of constituting an arbitral tribunal for the exercise of that power. The reports of the various State Arbitration Courts will show, indeed it is common knowledge, that in practically all State industrial disputes the employees were combined in trades unions or other forms of organization allowed by the law.
Associations of workmen combined as trades unions have long been established in Australia, and for many years their existence and operation have been recognized and legalized in all the States by Statutes. Under these Statutes, of which the New South Wales Trades Union Act 1881 and the Victorian Trade Unions Act 1890 are examples, the system of association of workmen then existing is adopted and recognized. Trade unions were then, as they still are, associations of workmen following the same vocation, associated on the ground of common industrial interests. There was not in force in 1904, nor is there now, any State law which would refuse registration to a trade union merely because its basis of association was the common interest of persons following the same vocation, without regard to the several branches of industrial enterprise to which their labour was applied. Carpenters, for instance, are, it is well known, employed in a vast variety of industrial operations, yet in all the States they were free under State laws to combine in single trade union. The vocation of engineer affords an equally good illustration.
These were the industrial conditions existing when the Commonwealth Parliament passed the Commonwealth Conciliation and Arbitration Act 1904. In the forefront of the Statute (s. 2) is the following declaration:"The chief objects of this Act are:" Then follows a formal statement of its purposes of which I shall quote two paragraphs:
"V. To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State Industrial Authorities in aid of each other;
"VI. To facilitate and encourage the organization of representative bodies of employers and of employees and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employees to be declared organizations for the purposes of this Act:"
The first definition in s. 4 is as follows:
"`Association' means 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."
This definition, applied to s. 55, on the face of it enables trade unions, on complying with the conditions prescribed, to register as organizations. The Act in its form and provisions is substantially a copy of the State Act in New South Wales. Taking all these provisions into consideration, one intention stands out prominently in the enactment, that is, the intention to apply its machinery to industrial conditions as it finds them-to recognize and adopt as industrial units the trade unions and other combinations, founded on the trade union principle, which had come to be regarded in the several States as of sufficient authority both to represent and control their members in the conduct of industrial disputes.
I turn now to the respective contention of the claimants and the respondents in order to determine which will best give effect to this intention of the legislature, or, to adopt the expression of the rule in Heydon's Case, [F22] which will be the more effective to suppress the mischief at which the Statute was aimed and to advance the remedy it has provided. But let me first point out by two illustrations the consequences which must follow from the respondents' interpretation.
I assume a land engine-driver in a coal mine to be a member of an organization duly registered in accordance with the respondents' view as an organization of engine-drivers and firemen in connection with coal mining. He leaves the coal mine and is employed to do precisely the same work in driving an engine in a saw mill. If he wishes to have his interests in his new employment protected he must join another organization-an organization of engine-drivers and firemen in connection with saw milling. If he afterwards passes on to drive an engine in an iron foundry, still doing precisely the same work, he must join another organization-the organization of engine-drivers and firemen in that industry. Let me illustrate another consequence of the respondents' interpretation: The members of that long established and well known trade union the Amalgamated Society of Engineers in following their vocation are employed in almost every variety of industrial enterprise. On the respondents' interpretation that trade union could not be registered as an organization. It could obtain the benefit of the Act for its members only by splitting itself into as many unions or organizations as there are branches of industry in which its members are employed-and this in face of the definition to which I have called attention, which includes trade unions amongst the associations which may be registered as organizations under the Act.
It is impossible, in my opinion, to hold on any ground of reason that an interpretation which would lead to so restricted an operation of the Act could carry out the will of the legislature, as it is expressed on the face of the enactment, or that the intention, apparent in the provisions to which I have called attention, to recognize and adopt existing conditions of industrial combinations could be made effectual by a construction which would cut down the right of the employees to effective representation of industrial interests in the Federal Arbitration Court to something so much less free and less effective than that which they have enjoyed in the industrial arbitration systems of the States.
Thus the same conclusion as to the meaning of s. 55 is to my mind irresistible whether the intention of the legislature is ascertained from the words of the Act taken in their ordinary meaning, or on the assumption that its language is ambiguous, and that its intention is to be ascertained by a consideration of the purpose of the Act in relation to the circumstances existing at the time it was passed into law. I am therefore of opinion that sub-s. (1)(b) enabled the claimants to register as they have done, and that the answer to the first question submitted by the learned President should be that an association of land engine-drivers and firemen such as the claimant organization can be legally registered as an organization under s. 55 of the Act.
The second question assumes the registration of the claimants to be invalid on the ground of the respondents' objection, and the learned President asks whether the objection is fatal to the claim when the case comes on for hearing. It is I think quite clear that the Arbitration Court can have no cognizance of a claim by employees unless at the suit of a duly registered association of employees. Failure to prove due registration puts a claimant organization in the same position as a plaintiff company in a Court of law that had failed in proof of registration. The President can do nothing to overcome the difficulty. If the claimants can cure the objection by registering anew, they must initiate their proceedings anew.
The Registrar's certificate under s. 57 cannot cure the defect. The certificate is conclusive evidence of the fact of registration, and of compliance with what are called in s. 55 the prescribed conditions, but it affords no evidence that the association is an association entitled to be registered under the Act. In re National Debenture and Assets Corporation [F23] is a clear authority in support of that view. The effect of a certificate of registration when put in evidence must depend upon the language which the legislature has used in giving it efficacy. The effect of the section now under consideration may well be described by the words of my learned colleague the Chief Justice in Carroll v Shillinglaw, [F24] at 1108:"... the acknowledgment of registration is only conclusive that the things which could lawfully be done have been done, and that it cannot have the effect of declaring that a thing which could not be lawfully done has been lawfully done."
An amendment made during the argument limits the third question to the case of two respondents, The Board of Water Supply and Sewerage, Sydney, and the Mayor, Aldermen, Councillors and Citizens of the City of Melbourne. The former of these bodies, constituted by the New South Wales Statutes 43 Vict. No. 32, 51 Vict. No. 28, and 53 Vict. No. 16, is in everything but name a Department of the New South Wales Government. It carries on public services which have always been regarded in Australia as governmental functions, it accounts directly to the State Treasury, and is in all important respects under government control. Under these circumstances it is clearly an instrumentality of the State Government, and is therefore, in accordance with the principle laid down in the Railway Servants' Case, [F25] outside the control of the Commonwealth Arbitration Court. The other corporate body, which I shall describe as the City of Melbourne, is incorporated by Victorian State Statutes, to which it is unnecessary to refer in detail. It is empowered to carry on, out of municipal funds, the services for the benefit of the citizens and the public which are usually undertaken by municipalities in Australia. Amongst these is the lighting of the streets and public places of the city. The Electric Light and Power Act 1896 adds new powers, and enables the City of Melbourne to light the city by electricity and to supply electricity not only for that purpose, but for the purpose of carrying on the business of electrical supply for house lighting and all other purposes for which electrical power may be used, authorizing the city to defray the costs of the business out of the municipal funds, and pay its receipts into the municipal funds. In its electrical supply department the city therefore carries on two operations, the one generally regarded in Australia as a public service, the other being clearly a private business. We are informed that the machinery which supplies electricity for all these purposes is the same and their engine-drivers employed on this work are therefore engaged in both these operations at the same time. The question submitted is whether the Commonwealth Arbitration Court has jurisdiction to make the city a party to the dispute in respect of such employees. In the Railway Servants' Case [F26] this Court adopted the principle laid down by the Supreme Court of the United States in many cases, and comprehensively stated by Mr. Justice Nelson in Collector v Day, [F27] at p. 127, that there must be implied in the Constitution a prohibition against the exercise by the Commonwealth of control in any form over an instrumentality of a State Government. The Railway Servants' Case [F28] involved the right of the Commonwealth Arbitration Court to make an award respecting the wages of employees in the Government railways of New South Wales. State railways in Australia have ever been regarded as Government instrumentalities, and have been as such expressly recognized in the Constitution. The Court held that Government railway servants could not be brought under the control of the Commonwealth Arbitration Court. In the American Courts municipalities, speaking generally, have been treated as carrying on their public services as instrumentalities of the State which gives them their corporate existence. Meriwether v Garrett [F29] and United States v Railroad Co, [F30] broadly lay down the principle that a municipal corporation is a portion of the governing power of the State, and that any attempt to control or interfere with its functions is an attempt to interfere and control the State itself. The whole basis of the doctrine that there is an implied prohibition against the Commonwealth exercising control over an instrumentality of a State Government, or a State exercising control over an instrumentality of the Commonwealth Government, is founded on an implication necessary for the preservation of the rights of Commonwealth and State within the ambit of their respective powers. The implication is not to be carried beyond the limits of the necessity. Having regard to the very great difference between the public services undertaken by municipalities in the United States, and those undertaken by municipalities in Australia, this Court might well hesitate to adopt the principles laid down in those cases in their entirety, especially having regard to the form in which the question has been brought before it. It is not, however, necessary for the advising of the learned President to express any opinion upon the broad question to which I have referred. The principle which frees State government instrumentalities from federal control or interference has never been applied in America for the protection of ordinary businesses carried on for profit even by the State itself. In the case of South Carolina v United States [F31] the Court held that the exemption of State agencies and instrumentalities from national taxation is limited to those which are of a strictly governmental character, and does not extend to those employed by a State in carrying on an ordinary private business. In that case the sale of intoxicating liquor was the business of which the State in the exercise of its governing power had taken charge. Following that principle, as I think we should, there would appear to be no reason why the employees of the City of Melbourne, engaged in the operations of the electrical supply business, should not come under the control of the Commonwealth Arbitration Court just as the employees in any private business would come under its control, if they were members of an organization engaged in an industrial dispute extending beyond the limits of Victoria. The fact that the employees, in carrying out that work, are also engaged in the supply of electricity for the public purposes of the city cannot remove their employers, the City of Melbourne, from the jurisdiction of that Court. In the case of employees engaged exclusively in the public services carried on by the city a different position may arise, and one which I do not think it necessary to consider at the present time.
As to the fourth question, it is quite clear that the learned President, in inquiring into the existence of such an industrial dispute as is necessary to give him jurisdiction, is no more bound by the ordinary rules of evidence than he is in hearing the merits of the dispute.
Sec. 25 of the original Act as amended applies to one part of the case as much as to the other. The question in the form in which it is stated should therefore be answered in the negative. But the real point upon which, as I understand him, the learned President requires the opinion of the Court is this:If on such an inquiry he finds upon evidence taken in accordance with s. 25 that he has jurisdiction, and the question of his jurisdiction is afterwards brought before the High Court for consideration, is that Court, in inquiring into the foundation of his jurisdiction, bound by the ordinary rules of evidence, or may it come to a conclusion upon evidence admitted by him under s. 25, though not otherwise legally admissible? In the determination of any question of fact this Court, in the absence of statutory provision to the contrary, is bound, just as every Court is bound, by the ordinary rules of evidence. Whether there is or is not a dispute extending beyond the limits of any one State is a fact which must be established at the hearing as the foundation of the learned President's jurisdiction. If his jurisdiction is questioned in this Court on the ground that there is in fact no such dispute, the Court must determine that fact upon evidence brought before it in accordance with the ordinary rules of evidence, irrespective of what the learned President may have decided, and without considering whether the evidence before him was or was not admissible according to the ordinary rules of evidence. In proceedings on prohibition the evidence taken before the Arbitration Court may, of course, be brought before this Court on affidavit in the ordinary way, but the Court could not act upon any evidence which would be inadmissible under the ordinary law of evidence.
The answer to the fifth question depends upon the construction of s. 21 applying the principles of interpreting such section adverted to in my answer to the second question. The Registrar's certificate is, in my opinion, prima facie evidence of one fact and one fact only, that is, that the controversy which the party claimant alleges to be an industrial dispute does extend beyond the limits of any one State. It affords no evidence that the dispute is an industrial dispute within the meaning of the Act, or that the claimant organization is legally constituted or entitled to bring the claim under the cognizance of the Court. As to the President's proposal to create a Board of Reference with the powers set forth in the proposed fourth clause of the award, I am of opinion that he has no jurisdiction. These are, no doubt, questions of fact which must be settled between the parties in working out of the award. It is competent to the President to constitute a body empowered to determine such matters. The provisions of s. 40A of the Act of 1910 would seem to indicate fairly the nature of the authority which could for this purpose be legally conferred on a Board of Reference even under the Act of 1904. I do not know of any ground, nor have I heard any suggested, upon which it could be fairly contended that it was not within the power of the Commonwealth to enact that section. I do not think it necessary to express any opinion as to what alterations in the form of proposed clause 4 of the proposed award might make it valid. I agree with my learned brother the Chief Justice, and for the reasons he has given, that the duty of this Court under s. 31 of the Act of 1904 extends only to answering questions of law arising out of concrete matters in actual controversy in the dispute.