Ex parte Professional Engineers' Association
(1959) 107 CLR 208[1959] HCA 47
(Judgment by: McTiernan J)
Ex parte Professional Engineers' Association
Court:
Judges:
Dixon CJ
McTiernan JFullagar J
Kitto J
Taylor J
Windeyer J
Subject References:
Constitutional Law (Cth)
Judgment date: 9 September 1959
Sydney
Judgment by:
McTiernan J
In my view the bodies which make common cause in these proceedings with the State of New South Wales are governmental or quasi-governmental authorities. As in the case of the State of New South Wales, none of them is an industry, government and industry being essentially different. I do not, however, regard government as merely a closed category of "indispensable" and "regal" functions.
The description "governmental" is wider than "executive" or "administrative" (Maitland, The Constitutional History of England, p. 196). Executive or administrative functions are at the heart of government. They are not industrial activities. But a governmental industry is a well-known entity. That does not mean that the management of such an industry is itself an industrial activity; it is, on the contrary, an administrative function. The materials before the Court show that all the employers concerned in the present proceedings carry on substantive activities which the provisions of s. 4 of the Conciliation and Arbitration Act relating to the meaning of "industry" include in that term. I think that the apt terms here are "business", "trade" or "undertaking". But to be included in "industry", such an activity must be "industrial" from the point of view of s. 51(xxxv.) of the Constitution. Under our system of polity the activities in question are such as might be carried out either by the State or a public authority or by private enterprise. They are activities which pertain to industry. The fact that any one of them is carried on by the Government or by a public body does not deprive it of its industrial character. A State or a governmental body is within the range of s. 51(xxxv.) of the Constitution so far as it is an employer in an "industry": Section 4 (a) of the Conciliation and Arbitration Act defines "industrial dispute". In my opinion, par. (a) of the definition would, apart from par. (c), apply to an industrial dispute in which the State of New South Wales or any other of the authorities was involved as an employer in an industry within the meaning of the Act, and par. (c) of the definition is declaratory as to the width of par. (a). (at p246)
2. The remaining question to be determined is whether the employees on whose behalf the Association of Professional Engineers framed the log of claims are employees in any "industry". It must be an industry which is "a calling & c. of employees" under par. (b) of the provisions of s. 4 relating to the meaning of "industry". (at p247)
3. If the employees in whose interests the Association framed its log are in an "industry" within the meaning of the Act, the Association should succeed in all the present matters. The part of the log of claims which is material for present purposes is in these words:
"'Employer' shall mean any employer, council, board, commission, Government department, authority, trust, corporation, company or other body or person upon whom this Claim is served, or the successor of any of the above.
'Professional Engineering Duties' shall 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.
The said qualifications are those prescribed for or as granting complete exemption from the examination for Associate membership of The Institution of Engineers, Australia and are set out in Schedule 'B' hereto.
'Professional Engineer' shall mean a person qualified to carry out Professional Engineering Duties as above defined.
The term 'Professional Engineer' embraces and includes 'Qualified Engineer' and 'Chartered Engineer' as hereinafter defined.
'Qualified Engineer' shall mean a Professional Engineer, other than a 'Chartered Engineer' as hereinafter defined, that is, it shall mean a person who is or is qualified to become a Graduate of The Institution of Engineers, Australia or a member of The Association of Professional Engineers, Australia.
'Chartered Engineer' shall, for the purposes of this Claim, mean a Professional Engineer in any particular employment the adequate discharge of any portion of the duties of which employment requires qualifications of the employee as (or at least equal to those of) an Associate Member of The Institution of Engineers, Australia.
Division 2 - Salaries
For an employment involving the performance of Professional Engineering Duties.
(i) Qualified Engineer.
The minimum rate of salary which shall be paid to a Qualified Engineer shall be 1,650 pounds per annum.
(ii) Chartered Engineer.
The minimum rate of salary which shall be paid to a Chartered Engineer shall be 2,200 pounds per annum".
The qualifications set out in "Schedule B" mentioned in this extract are degrees and diplomas conferred by Australian Universities and Technical Colleges. (at p247)
4. The Institution of Engineers, Australia, referred to in the extract, is essentially a professional body. Clearly it is not an industrial organization.
It would appear from the extract that its members include engineers who are employees, and that "Qualified" and "Chartered" engineers on whose behalf the claims are made may be members of the Institution. The reference in the definition of "Professional Engineering Duties" to the Institution in prescribing the criterion of such duties indicates the truly professional nature of the employment covered by the log of claims. (at p248)
5. There is no decision of this Court which says that the profession of engineering is within either par. (a) or par. (b) of the provisions in s. 4 relating to the meaning of "industry". Here the Court is concerned only with the question whether when the profession of engineering is the occupation of employees it is within par. (b). That this question remains open would follow from an observation of Fullagar J. in The King v. Blakeley; Ex Parte Association of Architects, & c. of Australia (1950) 82 CLR 54 regarding certain kindred occupations. His Honour said: "I may add that it has occurred to me to wonder whether members of the prosecuting Association are engaged in industry within the meaning of the Constitution and of the Commonwealth Conciliation and Arbitration Act. That question, however, has not been raised in these proceedings" (1950) 82 CLR, at p 96. (at p248)
6. The profession of engineering when carried on by employees is not an "industry" unless what s. 4 enacts as to "industry", from the point of view of employees, applies: Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia (1944) 68 CLR 628 , at p 634. The word "profession" is not in par. (b). This paragraph of s. 4 reads:
"'Industry' includes -
- (b)
- any calling, service, employment, handicraft, or industrial occupation or avocation of employees".
However some of the terms used there are capable of referring to professions followed by employees but such professions must be of an industrial nature to be included in "industry" for the purposes of the Act and the constitutional power. Referring to a similar provision regarding the meaning of "industry" Knox C.J., Gavan Duffy J. and Starke J. said in the Teachers' Case (1929) 41 CLR 569 :
"It is engagement in an occupation, and not employment in the business or industry of the employer that is the feature of this definition. But even if this be so, the definition cannot enlarge the meaning of the phrase 'industrial dispute' in the Constitution, and the occupation must be of an industrial nature" (1929) 41 CLR, at p 575.
In that case the same members of the Court rejected a view that the word "industry" includes for the purposes of the Constitution "processes which are concerned with services such as the administrative services of public officials and skilled professional advice of doctors and lawyers" (1929) 41 CLR, at pp 573, 574. It seems to me that it would be correct to add members of the engineering profession to the list mentioned by the Court. "Skilled" is an important word in the quotation. The practice of the profession under consideration consists in giving skilled advice and services regarding matters in the field of the special knowledge or training of a professional engineer. The advice or services may be given to the client by the principal in a practice, or by a professional engineer who is an employee. I think that neither the professional business of the principal nor the occupation of the employee - professional engineer - is an "industry". If it is not, surely neither principal nor employee would become an industrial worker by following his profession in the Public Service. (at p249)
7. I think that it is inappropriate to apply here the principle that an employee need not be a manual worker to be an employee in an "industry". To say of a professional engineer merely that he is not a manual worker obviously leaves out all that is important about his occupation for present purposes. Workers who are not manual workers may, nevertheless, be part of the labour force, for example, foremen, timekeepers, clerks and so forth, engaged on an industrial job. But a professional engineer giving his advice or services in connexion with the operations cannot properly be classified with such workers.
I do not feel impelled by the decisions regarding municipal workers, clerks in gas companies, bank clerks, insurance clerks and journalists, to decide that the engineering profession is an occupation of an industrial nature. I think that it is better to classify professional engineers with members of the learned professions. In the present state of the authorities, it could not in my opinion be successfully contended that under the definitions of "industry" in s. 4 of the Commonwealth Conciliation and Arbitration Act or for the purposes of the Constitution lawyers and doctors either as the principals in a practice or as employees are industrial workers. The argument advanced to the Court that the engineering profession is an industrial occupation rests mainly on the word "engineering". In my opinion that word, used as a description of the profession, points to the art in which a professional engineer has been educated and trained and signifies an employment which involves the conception of a project, suitable and practicable for his client's purposes, the expression of its form in plans or blue prints and the performance of services requiring special skill and scientific knowledge upon which the successful materialization of the project and its maintenance and operation depend. The products of the professional engineer's labour are the designs, specifications, plans and reports, and the giving of professional advice and supervision on the job. But the building or structure in respect of which he gives his services is the product of the industrial workers of all classes engaged on it.
In my opinion the employment covered by the log of claims is not work of an industrial nature. Performance of "Professional Engineering Duties" does not become an industrial occupation simply because the employer of the professional engineer chooses to apply the latter's scientific knowledge, skill and advice to certain industrial ends. The occupation of a professional engineer does not partake of the industrial nature of the business, trade or undertaking carried on by his employer. (at p250)
8. Of course, the decision which I have given does not affect the jurisdiction of any industrial tribunal of a State. (at p250)
9. In my opinion, the Association and its members cannot raise an "industrial dispute" upon the basis of the log of claims. The result is that the order nisi for mandamus should be discharged, and the orders nisi for prohibition should be made absolute. (at p250)