Between: Federated State School Teachers' Association of Australia
And: State of Victoria

Judges: Knox CJ
Isaacs J
Gavan Duffy J

Rich JStarke J

Subject References:
INDUSTRIAL LAW
ARBITRATION
Meaning of industrial dispute
Dispute between State and teachers employed by State

Legislative References:
Constitution (Cth) - s 51(xxxv)
Conciliation and Arbitration Act 1904 (Cth) No 13 - s 4

Sydney (heard in Melbourne)

Judgment by:
Rich J

This case evoked another of the often repeated and always unsuccessful attempts to determine the connotation of the vague and indeterminate words "industrial dispute." A review of the many disquisitions of each of the Justices past and present of this Court recalls an observation made by Sir Frederick Pollock in an essay not inappropriately entitled "Mystic Experience and Philosophy," in his book called also with some appropriateness Outside the Law:

"The only inference we can draw is that every one of the seers expressed his insight, naturally and inevitably, in a form conditioned by the terms and symbols which were familiar to him."

To borrow an apt phrase from Professor Gilbert Murray,

"they are all trying to say the same ineffable thing. Whoever is convinced that any one form is better than the rest must base his conviction on some independent external ground. The mystics themselves are not in accord on the question whether any such grounds can be assigned."

Higgins J. himself, in the Municipal Employees' Case, ^[F27] said:

"It is not necessary for us, in order to determine whether this dispute (a dispute between street cleaners, street lighters, etc, and their employer, the municipality) is an industrial dispute, to define fully 'industrial dispute'-to enumerate even all the characteristics, the full connotation of an industrial dispute; any more than it is necessary for us to define what is a dog when we determine that a certain animal is a dog. To my mind, a great deal of time is wasted and harm done by the premature efforts of Courts to define exhaustively expressions of common speech."

In this case the question is whether a dispute as to wages and conditions raised by teachers employed by the States in their various schemes of national education answers any description conveyed by the English words "industrial dispute." It is difficult to suppose that any person not indoctrinated by a long course of quasi-philosophic and quasi-economic dissertations would ever apply the term "industrial" to such a controversy. Indeed, even to one hardened by such discussions, the application of the term "industrial dispute" seems to lack justification either in the natural meaning of the words or the judicial explanations of their implications.

It seems to me that the relation of the State to its teachers does not include the important element mentioned in the joint judgment of my brother Isaacs and myself in the Municipal Employees' Case, ^[F28] namely, capital and labour co-operating to produce a result which is the outcome of their combined efforts. There is not an industry as in the case of the journalists (Proprietors of the Daily News Ltd v Australian Journalists' Association: ^[F29]

"A newspaper is a commercial enterprise, and the co-operators in its production, from the proprietors to the office-boy, are engaged in one industrial operation."

Teaching does not, like banking and insurance, play a part "in the scheme of national industrial activity." In the Australian Insurance Staffs' and Bank Officials' Case ^[F30] my brother Isaacs and I said:

"They are indispensable portions of the general industrial mechanism. Without the aid of the capital and credit furnished by bankers the present system of industrial organization would collapse. They directly furnish an essential instrument of production."

This element is wholly lacking in the profession of teaching. Mr. Ham attempted to find in the function of school teaching some industrial purpose. He suggested that knowledge was a prerequisite to industrial efficiency. Whether this be so or not, it cannot be said that the industrial system could not exist without national education. The existence of human beings is no doubt necessary but it is absurd to suggest that everything that goes to make the man forms a part of the community "industrially organized with a view to the production and distribution of wealth."

I answer the questions propounded in the negative.

Ham K.C. (with him Fullagar), for the claimant.

C. Gavan Duffy, for the State of Victoria.

Robert Menzies K.C. (with him Tait), for the State of Tasmania.

Solicitors for the claimant, Maurice Blackburn & Tredinnick.

Solicitor for the respondent the State of Victoria, Frank G. Menzies, Crown Solicitor for Victoria.

Solicitors for the respondent the State of Tasmania, Blake & Riggall, for the Crown Solicitor for Tasmania.