Ex parte Professional Engineers' Association

(1959) 107 CLR 208
[1959] HCA 47

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(Judgment by: Taylor J)

Ex parte Professional Engineers' Association

Court:

Judges: Dixon CJ
McTiernan J
Fullagar J
Kitto J

Taylor JWindeyer J

Subject References:
Constitutional Law (Cth)

Hearing date: 2-3, 6-10, 13-15 April 1959
Judgment date: 9 September 1959

Sydney

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Judgment by:
Taylor J

The questions which we are called upon to consider in these matters have arisen in the course of proceedings before the Commonwealth Arbitration Commission in which the Association of Professional Engineers, Australia, an organization of employees registered under the Conciliation and Arbitration Act 1904-1958, is seeking an award in settlement of an industrial dispute, or industrial disputes, created, it is said, by the service and rejection of a log of claims. The log, with modification in some cases, was served upon a number of employers in the various States and also upon a number of State Government Departments and other public authorities. Among the latter were a number of public bodies in New South Wales and these included the Public Service Board, the Department of Main Roads, the Department of Public Works, the Housing Commission, the Forestry Commission, the Water Conservation and Irrigation Commission, the Maritime Services Board, the Metropolitan Water Sewerage and Drainage Board, the Hunter District Water Board and the Council of the City of Sydney. Not dissimilar authorities in the other States were also served with the log and the States of Victoria, South Australia, and Western Australia have intervened in these proceedings to support the objection that the Commonwealth Arbitration Commission has no authority to make an award prescribing the conditions to be observed by the public authorities referred to in the employment of members of the organization. This objection rests primarily upon the contention that disputes concerning the conditions upon which the specified authorities may employ members of the organization are not "industrial disputes" within the meaning of that expression in s. 51 (xxxv.) of the Constitution and, alternatively, upon the view that the same expression as defined and used in the Conciliation and Arbitration Act, 1904-1958 has a narrower significance and does not extend to cover disputes as to conditions of employment between an organization of employees on the one hand and, on the other, a State of the Commonwealth or authorities which represent it or which it has created for specified public purposes. (at p253)

2. It will be seen that the primary and alternative contentions relate to two separate and distinct questions. The first is concerned with one aspect of the relevant legislative power and the question must be solved by considering what are, in the sense in which that expression is used in par. (xxxv.), "industrial disputes extending beyond the limits of any one State". The alternative contention, on the other hand, is concerned with the construction of the relevant provisions of the Conciliation and Arbitration Act and the determination of the question whether or not the expression "industrial dispute" is used in the Act with the fullest significance permissible under the constitutional power. (at p254)

3. Prior to the Engineers' Case (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd.) (1920) 28 CLR 129 the effect of the generally accepted doctrine of the immunity of State instrumentalities made it inevitable, in cases which affected a State or some one or more of its statutory authorities, that these substantive questions should assume a secondary importance.

In effect, the question specifically examined on a number of occasions was not so much the extent of the legislative power which the words of par. (xxxv.) purport to confer as the nature and extent of the restrictions imposed by the doctrine in question. The earliest case of this character was, of course, the Railway Servants' Case (The Federated Amalgamated Government Railway and Tramway Service Association v. The New South Wales Railway Traffic Employees Association) (1906) 4 CLR 488 in which it was held that the doctrine enunciated in D'Emden v. Pedder (1904) 1 CLR 91 was reciprocal and that, since the "State Railways" should properly be regarded as a State instrumentality, the Commonwealth Conciliation and Arbitration Act 1904 was invalid to the extent to which it purported to affect "State Railways". At that time the expression "industrial dispute" was defined to mean a dispute in relation to industrial matters "including disputes in relation to employment upon State railways". These words were omitted from the Act in 1910 when the amending Act of that year (No. 7 of 1910) substituted in the Act a modified definition of "industrial dispute". But the decision in the Engineers' Case (1920) 28 CLR 129 meant that in future cases affecting a State or State authorities a more precise examination of the content of the constitutional power would be necessary. To some extent, however, a somewhat similar task had been undertaken some two years before the Engineers' Case (1920) 28 CLR 129 when it was held by a majority of the Court that municipal corporations with powers of local government were not "instrumentalities of State Government" and, therefore, not exempt from the operation of legislation enacted by the Commonwealth Parliament pursuant to par. (xxxv.). In that case the question raised by the case stated and as amended during the hearing (see (1919) 26 CLR, at p 516) was whether the Commonwealth Court of Conciliation and Arbitration had power or jurisdiction to determine by an award a dispute between the organization and the municipal corporations concerned so far as it related "to such operations of the said municipal corporations as consist of the making, maintenance, control, and lighting of public streets or any of them" and this question the majority answered in the affirmative. In dealing with the case Isaacs and Rich JJ. expressed the view that the concept of "industrial disputes" might be stated as follows:

"Industrial disputes occur when, in relation to operations in which capital and labour are contributed in co-operation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co-operation.

This formula excludes the two extreme contentions of the claimant and the respondents respectively. It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the co-operation of capital and labour and do not come within the sphere of industrialism. It includes, where the necessary co-operation exists, disputes between employers and employees, employees and employees, and employers and employers. It implies that 'industry', to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense, as if it alone effected the result, but it must be acting and be considered in association with its co-operator 'capital' in some form so that the result is, in a sense, the outcome of their combined efforts. It also implies that 'an industry', in the relevant sense, is not confined to a single enterprise, but means a class of operations in which all persons, employers and employees, are engaged on the same field of industry - not necessarily of commerce - provided by the society in which they exist."

(Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508 , at pp 554, 555).

The concept is, of course, widely stated and later experience may provide grounds for thinking that its limits are not sharply defined. Indeed, there may be reasons for thinking that the literal application of these observations may cover a field, in some respects too wide and, conversely, exclude disputes which according to later authority are truly "industrial disputes". But the expression "industrial disputes" is an expression of wide denotation and in the complexity of modern industrial and economical development it is no criticism of an attempted definition that it does not once and for all provide a certain guide for all future cases. In the same case Higgins J. was impressed by the difficulty of attempting a complete definition and observed that it was not necessary "in order to determine whether this dispute (a dispute between street cleaners, street lighters, & c., 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" (1919) 26 CLR, at p 574. To his Honour, it seemed, "a great deal of time is wasted and harm done by the premature efforts of Courts to define exhaustively expressions of common speech" (1919) 26 CLR, at p 574. (at p256)

4. The majority of the Court in the Engineers' Case (1920) 28 CLR 129 held "that States, and persons natural or artificial representing States, when parties to industrial disputes in fact, are subject to Commonwealth legislation under par. (xxxv.) of s. 51 of the Constitution, if such legislation on its true construction applies to them" (1920) 28 CLR, at p 155, and then went on to hold, further, that a dispute between named organizations of employees and the Minister for Trading Concerns (W.A.) was an "industrial dispute" within the meaning of s. 51 (xxxv.). The dispute to which the Minister was a party was, it was said, "manifestly and admittedly one which no one would deny was an 'industrial dispute' if a private person were the employer" (1920) 28 CLR, at p 155, and it followed, therefore, that the dispute was within par. (xxxv.). (at p256)

5. In reaching their conclusion in the Engineers' Case (1920) 28 CLR 129 the majority of the Court expressly overruled the Railway Servants' Case (1906) 4 CLR 488 , but in doing so they did not express any view on the question whether the dispute in that case was an "industrial dispute". But there can be no room for doubt that if it had been necessary to pronounce on this question the decision would have been that it was an "industrial dispute". Even if this does not sufficiently appear by implication from the decision in the Engineers' Case (1920) 28 CLR 129 itself it must be taken to have been put beyond doubt by the decision in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 2) (1920) 28 CLR 436 . The argument in this case took place immediately after that in the Engineers' Case (1920) 28 CLR 129 and the judgment in each case was delivered on the same day.

The effect of the decision was that the dispute which the Commonwealth Court of Conciliation and Arbitration had found to exist was an "industrial dispute" of which the Court properly had cognizance and in respect of which it might make an award. The dispute in question was between the Merchant Service Guild on the one hand and, on the other, "the Sydney Harbour Trust, the Melbourne Harbour Trust, the Colonial Treasurer of New South Wales in respect of pilot steamers and tenders thereto and a steam tug at Clarence River, the Minister for Public Works of New South Wales in respect of vessels conveying workmen to and from dockyards, State metal quarries, and dredges, ferry services between Newcastle and Stockton and the Chief Secretary of New South Wales in respect of (the State) trawling industry" (1920) 28 CLR, at pp 454, 455. If a dispute as to the conditions upon which these authorities might employ masters, engineers and officers constituted an industrial dispute then there could be no reason for thinking that a dispute between the Commissioner for Railways and his employees with respect to conditions of employment in the service of the Commissioner did not. (at p257)

6. Before the Arbitration Commission the matters with which we are concerned took a somewhat curious course. The Commission examined the various activities undertaken by the public authorities previously specified and came to the conclusion that some of them were wholly engaged in industry. In respect of others, it took the view that some part of their activities constituted "industry" and that an award might be made prescribing conditions of employment with respect to members of the organization who were engaged in those activities. In respect of the remainder the conclusion was reached that their activities were "governmental" and not "industrial" in character and that their employees were outside the award-making power. The matters now come before us upon competing applications for mandamus and prohibition. Mandamus is sought by the Association on the basis that each and every one of these public authorities is engaged in industry whilst prohibition is sought by a number of the authorities concerned on the basis that disputes between them and members of the organization as to conditions of employment in their service are not industrial disputes in the true sense. But, upon the evidence, it is reasonably apparent that the relationship between each of the public authorities and many, at least, of the employees engaged in the activities which the former undertake are no less industrial in character than those which were the subject of examination in the Railway Servants' Case (1906) 4 CLR 488 , the Municipalities' Case (1919) 26 CLR 508 , the Engineers' Case (1920) 28 CLR 129 and the Merchant Service Guild's Case (No. 2) (1920) 28 CLR 436 . One may, therefore, be disposed to think that the substantive questions now raised are not open. But it is said that two later decisions have virtually undermined, or, perhaps, displaced, the reasoning upon which the decisions in the earlier cases rest. The first of these is the Teachers' Case (Federated State School Teachers' Association of Australia v. State of Victoria (1929) 41 CLR 569 ) in which it was held that a dispute as to the conditions upon which State school teachers might be employed by the respondent was not an industrial dispute within the meaning of par. (xxxv.).

In the second - Victoria v. The Commonwealth (1942) 66 CLR 488 (the Public Service Case) - the Court unanimously rejected the contention that the members of the Public Service of the State of Victoria were engaged in "industry" and that, therefore, a dispute between the organization which represented them and the State of Victoria concerning the conditions of their employment was not an industrial dispute within the meaning of the placitum. But these cases do not touch the present problem. They do not deny the proposition that a State may engage in industry or undertake industrial activities. They merely decide that neither State school teachers nor State Public Servants, collectively, are engaged in industry however widely that expression may be understood.

Nevertheless, it was urged that the decisions in the two cases rested ultimately upon a single fact. The decision in the Teachers' Case (1929) 41 CLR 569 , it was said, rested exclusively upon the fact that the educational activities of the State did not constitute an industry and that school teachers were not, therefore, engaged in industry. Likewise, it was said that the basis of the later case was the in-escapable view that the aggregate activities in which members of the Public Service were collectively engaged were not industrial in character.

But it is erroneous to a degree to say that considerations of this character must be decisive in every case for the character of the services which employees are engaged to perform are, as will appear, of considerable significance. Indeed, this was not lost sight of in the Teachers' Case (1929) 41 CLR 569 as appears from the joint reasons of Knox C.J. and Gavan Duffy and Starke JJ. There, after disposing of the contention that the State of Victoria was not, as regards teaching in State schools, engaged in industry, their Honours proceeded to consider the character of the occupation of the employees concerned. (at p258)

7. On this point their Honours said: "Looking now at the matter from the point of view of the teachers, can their occupation be described as an industrial one? Industry includes, by force of s. 4 of the Commonwealth Conciliation and Arbitration Act, 'any calling, service, employment, handicraft, or industrial occupation or avocation of employees on land or water.' 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. It was argued that it is inapplicable in the case of State activities, because industrial dispute means, so far as the States are concerned, any dispute in relation to employment 'in an industry carried on by or under the control of... a State', etc. (see s. 4). But we need not determine this point, for the occupation of the State school teachers is not industrial" (1929) 41 CLR, at p 575. These observations involved a clear acknowledgment that the character of the occupation of State school teachers was a matter for consideration in determining whether a dispute as to the conditions of their employment was an "industrial dispute" in the constitutional sense though they recognized, also, that, in relation to disputes between States and their employees, the argument was open that the Act, upon its true construction, applied only to disputes as to conditions of employment in substantive forms of industry carried on by the State. In my view neither the Teachers' Case (1929) 41 CLR 569 nor the Public Service Case (1942) 66 CLR 488 furnish any grounds for requiring us to reconsider the earlier cases to which reference has been made. (at p259)

8. The definitions contained in the Act at the time of the Teachers' Case (4) stood in much the same form as they do now and they are not without difficulties of their own.

By s. 4 of the Act an "industrial dispute" means a dispute as to industrial matters which extends beyond the limits of any one State and includes (par. (c)) "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".

"Industrial matters" means "all matters pertaining to the relations of employers and employees, and... includes" a number of specified subject matters.

"Employer" means any employer in any industry and includes any person who is usually an employer in an industry whilst "employee" means any employee in any industry and includes any person whose usual occupation is that of employee in any industry.

The expression "industry" is, itself, the subject of definition and the expression includes

(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 or a group of industries.

But whatever may be the difficulties created by the unusual interdependence of these definitions one thing is clear. That is that in the general run of cases an industrial dispute may exist concerning conditions of employment by an employer who, though not engaged in some substantive industry of his own, employs members of an organization whose calling, services, employment, handicraft or occupation is essentially industrial in character.

It is, however, asserted that the provisions of par. (c) of the definition of "industrial dispute" represent an exhaustive statement of what constitutes such a dispute when the dispute is between an organization of employees and a State or authority of a State. In such a case, it is contended, an industrial dispute exists only when it is "in relation to employment in an industry carried on by, or under the control of, a State or an authority of a State". These words are, of course, the precise words of par. (c) but it is, at least, doubtful whether, for any practical purposes, the contention has any significance in cases where the dispute is concerned with the conditions of employment of employees whose occupations are unequivocally industrial. For instance, it may well be thought that if the State employs bricklayers for the performance of building construction work it has, to that extent, ventured into the building "industry".

Of course, the conclusion would be otherwise in the case of employees whose occupations are not industrial in any real sense unless they are employed as part of the labour force engaged in carrying on some recognizable industrial undertaking. But the argument adduced on behalf of the authorities concerned denies the proposition involved in the first of these illustrations. In the first place, it is somewhat boldly asserted that once it is seen that an activity undertaken by a State, or some authority representing it, is "governmental", there is no room for the conclusion that it is also "industrial".

Alternatively, it is said, that a so-called "governmental" activity cannot be regarded as industrial unless it can be seen that in engaging in it the State has "entered the market-place". The difficulty with the first of those propositions is that it does not define what is meant by "governmental". However, in illustrating its application the assertion is made that any activity undertaken by a State or State authority is properly so described. It may be conceded at once that in a sense this is true but to say that it may be so described is no indication of the essential character of the activity itself, or, of the fundamental distinction between essential functions of government and other activities in which, for its own legitimate purposes, a State may engage. It is beyond doubt that the administration of justice is of the former character but is it possible to say that the work of building court houses is of the same fundamental character? Or, does it follow from the Teachers' Case (1929) 41 CLR 569 , as was suggested, that the work of constructing school buildings is an essential function of government? To my mind only one answer can be given to these questions. Clearly they are not.

Such activities, though undertaken for legitimate governmental purposes, are clearly industrial in character whether actually undertaken by the State itself or by contractors on its behalf. Indeed, the fact that the State may arrange for such work to be performed by outside agencies is, itself, a denial that work of this character is an essential function of government. (at p261)

9. The alternative proposition must also be rejected as an exhaustive guide to the circumstances in which a State may have industrial relations, and "industrial disputes", with its employees. Once it is seen that "governmental" purposes may be served by the undertaking of industrial activities or by the employment of labour in essentially industrial occupations, the proposed test appears as far too narrow. For the reasons already given it seems to me that employees of a State are employed in industries carried on by the State when, whatever their particular callings or occupations, they are employed as part of the labour force engaged in some substantive form of industry upon which the State has embarked or, failing the recognition of some such form of industry, when employees whose callings or occupations are essentially industrial are employed by the State to perform or discharge the ordinary duties of their callings or occupations. Such a conclusion is, in my view, in accordance with the long trend of authority and consonant with the definitions to be found in the Act. (at p261)

10. Not the least of the remaining difficulties in the case results from the form of the log by which the organization made its claims. Some of the problems arising from this source have already been dealt with by the Court and these may be passed over (Reg. v. The Association of Professional Engineers of Australia; Ex parte Victoria (1957) 100 CLR 155 ). But it is now contended that the log was incapable of giving rise to a dispute which is truly an "industrial dispute". The basis for this contention is found in the fact that the log claims on behalf of all members of the organization and "all other Professional Engineers eligible for membership of The Association of Professional Engineers, Australia," minimum rates of remuneration for all forms of employment involving "the performance of Professional Engineering Duties". "Professional Engineering Duties" mean, according to the log, "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" and the minimum rates claimed vary as between "Qualified Engineers" and "Chartered Engineers" as defined. With these provisions of the log in mind it is asserted that the dispute created by the rejection of the log is outside the "industrial" field. The claims made, it is said, are neither made with respect to employment in industry nor with respect to employment of an essentially industrial character but, on the contrary, with respect to the employment of professional engineers in whatever duties they may be called upon to perform in any kind of employment. There may be much to be said for the proposition that, literally, this is what the log does but, in my view, this vital question cannot be resolved merely by a literal construction of the provisions of the log. The problem is a practical one and cannot be dissociated from the general character of the duties of an employee who is employed as an engineer or from a consideration of what the log must, in the circumstances, have been taken to convey to those employers upon whom it was served. (at p262)

11. In the present proceedings the employers concerned are the public authorities already specified and it is desirable at this stage to make some reference to the character of the duties which engineers in their employ are called upon to perform and to indicate the views taken by the Arbitration Commission with respect to the extent of their award-making power. (at p262)

12. Department of Public Works: According to the findings of the Commission this Department is a constructing authority which annually expends large sums of money and employs a very large labour force. It employs professional engineers on preliminary investigations, design, construction, operation and maintenance in connexion with its general constructional activities. Included among its activities is the conduct of the State Dockyard and the State Brickworks. In the view of the Commission, these two undertakings engage in "trading activities" and, in effect, it was held that disputes as to the conditions upon which professional engineers might be employed in relation to them are "industrial". However, the Commission considered that the general constructional activities of the Department were "governmental" and, therefore, not "industrial". So far as this Department is concerned the organization now seeks mandamus in so far as the Commission has declined jurisdiction to make an award with respect to professional engineers employed in its general constructional activities. For the reasons already given the Commission was in error in holding that engineers engaged in these general constructional activities are not engaged in "industry"; a dispute as to their conditions of employment is clearly an industrial dispute and, as such, is within the cognizance of the Commission. (at p263)

13. Water Conservation and Irrigation Commission: Professional engineers employed by this authority appear to perform, in the main, duties with respect to construction and maintenance which is industrial in every sense of the word. But the Arbitration Commission regarded the general activities of this Authority as falling into the same category as the general constructional activities of the Department of Public Works. Accordingly, it declined jurisdiction except with respect to professional engineers employed "in or in immediate relation to the supply and sale of water". This activity the Arbitration Commission considered to be a trading activity and, therefore, engineers employed in relation to it were "industrially" employed. In my view, no such distinction can be drawn. The general engineering and constructional activities of this authority are also industrial and a dispute as to the conditions of employment of engineers employed in relation thereto is an "industrial dispute" within the meaning of the Act. (at p263)

14. Department of Main Roads: The Arbitration Commission was of the opinion that this Department was in the "same general position" as the Department of Public Works and that its professional engineers are not engaged in industry. But when it is seen that its engineers are engaged in the general engineering work of road and bridge construction and maintenance there is no room for holding that a dispute as to the conditions of their employment is not an "industrial dispute". (at p263)

15. With respect to five of the named authorities the Arbitration Commission held that disputes between them and the organization were "industrial disputes" and that it had power to make an award with respect to the conditions upon which professional engineers might be employed by them.

These authorities are: (at p263)

16. The Housing Commission of New South Wales: This authority, it is said, buys land, builds homes and sells or lets them to members of the public. It was said that it engaged in trading and carried on its activities as a commercial undertaking. In these circumstances the Commission considered that engineers employed by the Housing Commission for the purpose of carrying on its building activities were industrially employed. (at p264)

17. Forestry Commission: The Arbitration Commission took the view that this authority is engaged in "trading". It pointed out that during the year ended 30th June 1956 this authority effected sales of timber to the value of approximately two million pounds and that, according to the evidence, the professional engineers employed by it were "engaged mainly in the construction of roads through forests from which timber is being taken and that this construction work facilitates the sale of timber and its transport". Accordingly, it was of the opinion that a dispute as to the conditions upon which these engineers were employed constituted an industrial dispute. (at p264)

18. The Maritime Services Board: For the purpose of dealing with this authority the Arbitration Commission assumed that its powers, functions and activities are substantially the same as those of its predecessor - The Sydney Harbour Trust - and, it held, on the authority of the Merchant Service Guild's Case (No. 2) (1920) 28 CLR 436 , that it was engaged in industry and that the claims of its professional engineers were within the award-making power. (at p264)

19. Electricity Commission of New South Wales: The Arbitration Commission was of the opinion that this Authority was engaged in trading and that its professional engineers were engaged in industry. (at p264)

20. Sydney City Council: Upon earlier authority the Commission felt "constrained to hold that professional engineers employed as such" by this authority fell within the jurisdiction of the Commission. (at p264)

21. Prohibition was sought in respect of so much of the dispute, or disputes, as affected these five named authorities but for the reasons already given it seems clear that a dispute between them and the organization concerning the terms upon which, for the purposes of their activities, they might employ members of the organization is an industrial dispute in the true sense. (at p264)

22. Metropolitan Water Sewerage and Drainage Board and the Hunter District Water Board: The Arbitration Commission was of the opinion that these authorities were in the same general position as the Department of Public Works and that their professional engineers are not engaged in industry. Its view on this point seems to have been influenced to some extent by the fact that these authorities do not sell water but obtain their revenue from rates imposed by law. In my view, this circumstance is of no significance. It is impossible to read the evidence concerning the activities of these authorities without coming to the conclusion that they are extensively occupied with industrial undertakings and the members of the organization employed by them are employed in "industry". (at p265)

23. These are but brief references to the functions of the various authorities concerned but sufficient has been said to indicate that the general work of professional engineers employed as such by them is truly industrial and to show that, subject to one qualification, the logs appear to make claims only with respect to the conditions of employment of engineers who were employed in industrial activities. The qualification which I wish to make is that it is possible, though it does not appear, that some engineers are employed only in consultative work in relation to general matters of policy. Engineers so employed are, of course, not employed industrially and no award can be made with respect to their conditions of employment. But even if some are so employed the fact that the logs made claims wide enough, literally, to refer to their conditions of employment does not mean that the rejection of the logs was not capable of giving rise to industrial disputes concerning the conditions of employment of the general body of employees concerned. In essence, these disputes were industrial disputes, and the fact that there might have been some professional engineers employed in work which was not "industrial" was not sufficient to deny them this character. The substantial objection which was taken was that most, if not all, of the engineers who are employed by these authorities were employed in "governmental" and, therefore, not "industrial" activities and once this objection is disposed of there are no substantial grounds for thinking that the dispute is not within the cognizance of the Arbitration Commission. (at p265)

24. For these reasons, it seems to me, prohibition to restrain the Arbitration Commission from proceeding with the hearing and determination of the dispute, or disputes, should be refused and mandamus granted on the ground that the Commission has erroneously declined jurisdiction with respect to some aspects of the dispute. (at p265)