Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd
12 CLR 398(Judgment by: ISAACS J)
Between: FEDERATED ENGINE-DRIVERS AND FIREMEN'S ASSOCIATION OF AUSTRALASIA
And: BROKEN HILL PTY CO LTD
Judges:
Griffith CJ
Barton J
O'Connor J
Isaacs JHiggins 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:
ISAACS J
With regard to the first question, I am clear, as may be gathered from what I said in the Jumbunna Case, [F32] that the Constitution by s. 51 (XXXV.) enables the Parliament, if it so desires, to empower the registration of organizations such as the claimants in this case. That is to say, it may empower workmen to associate and register as organizations having regard only to the nature of the work they personally do, and entirely disregarding the class of industrial operations in which they and their employers are mutually engaged. But while entertaining no doubt that Parliament possesses that power, the only question here is whether in fact it did so by the Act of 1904. That depends on what is meant by "an industry" in that Statute. I shall presently indicate why I prefix the article to the word "industry."
In the Jumbunna Case, [F33] at p. 370 I expressed an opinion-though not a final one-that the Parliamentary use of "industry" in the Commonwealth Act was narrower than the Constitution required, and I there stated that it had reference to the business in which the employer was engaged as well as the employee.
Fuller consideration, now that the point has become essential, has confirmed me in my former opinion, and I shall more explicitly state the reasons for my conclusions.
The keynote of the Act is the prevention of the quelling of industrial strife which threatens or produces an interruption of industrial operations by which the wants of the community are satisfied. The public welfare is always the end in view. If the industrial operations, necessary, for instance, to produce or distribute the means of satisfying the requirements of the people of Australia, are in fact, or are likely to be, interrupted by a dispute between those who are co-operators in those industrial operations-that is both employers and employees-then that dispute-with a certain qualification which is material-is in obedience to the Statute to be prevented or settled. These industrial operations are in common parlance called "industries," and each of them is an "industry," and the Act when it speaks of "any industry" uses the term in this concrete sense and not in the larger and general abstract sense.
That is distinctly shown by the language of s. 7 under the head of a lock-out or strike. It says that where persons, with a view to being associated as employers and employees respectively in any industry, have entered into an industrial agreement with respect to employment in that industry, a refusal or neglect to comply with the agreement, without reasonable cause or excuse, amounts to a lock-out or strike.
This section indicates what the legislature meant by "any industry" and also by "employment in" that industry, and also the object of an "industrial agreement," that is, an agreement respecting employment in the "industry," the term necessarily implying one in which both employers and employees are engaged.
The same intention is preserved in s. 38, which in paragraph (f) speaks of "a common rule of any industry"; and of the "industries ... affected" entering into competition with each other, and it requires the President before making a common rule to publish a notification "specifying the industry." By paragraph (g) the section declares the common rule binding upon "the persons engaged in the industry whether as employers or employees." Sec. 40 dealing with "preference" again requires the President to specify "the industry"; and this is an illuminative section, because the industry in which an employer is required to give preference must be that in which he as well as the employees are engaged. Any other view would be meaningless.
Then in s. 41 a marked distinction is drawn between "an industry carried on" upon premises, and "the work done" there.
So far no doubt can possibly arise.
Before, however, examining s. 55 on which the present contention arises, one observation is necessary. It has reference to the qualification to which I adverted. It is not every industrial dispute which the legislature has made the subject of Commonwealth interposition. A dispute may be so small as to cause no real or important disturbance of industrial functions, and a general line has been drawn by requiring it to possibly affect at least one hundred employees. Exceptional cases are provided for; but the general rule is fixed in the following way. An industrial dispute is the foundation of all jurisdiction; but the only industrial dispute which the Act of 1904 recognized was one to which an organization of employees was a necessary party, or else was certified by the Registrar as proper in the public interest to be dealt with by the Court. This last provision shows clearly that the public standpoint was the dominant consideration, and indicates why "industry" was used in the sense of the combined operation supplying the public.
But as to the first case we have to see what it meant by an "organization." It is not simply an association, because that term, by the interpretation section, includes very much more than "organization." "Association" means practically any association, great or small, of employers or employees, with or without regard to any particular industries.
An "organization" is confined to a registered or proclaimed organization. That compels us to turn to Part V. which relates to organizations. There we find them divided into "registered" (ss. 55 to 61) and "proclaimed" (ss. 62 to 64). The registrable organizations are those associations which are considered by the legislature as always sufficiently large and representative to invoke the application of the Act. Associations not attaining to that standard may, if special circumstances render it desirable, obtain the President's recommendation, and then the Governor-General proclaims them as organizations, so that the standing exceptional nature of some industries, and of employers and employees in other industries, is thus provided for. Special individual instances were also provided for in the Act of 1904 by the second case in the definition of "industrial dispute." Thus no possible requirement of registration or curial interposition went unregarded. This particular association could have been, and still can be, created an organization by proclamation on the President's recommendation.
The true meaning, then, of s. 55 is not, I think, difficult to grasp. First, it dealt with employers' associations by allowing any association of employers in any industry to be registered, provided that during the preceding six months the employers associated employed on an average per month not less than one hundred employees in that industry.
The next paragraph gave the corresponding right to the employees by permitting that same hundred employees-or more-to register also as an organization, and so protect the right of the workers in the industry, as against the employers.
In other words, where the employers were allowed to register, so were the employees. If the employers had only 99 employees they could not possibly register as an organization; and it would be strange if, on the wording of the section, drawing no distinction between the industries referred to, those 99 employees could, by combining with another employee outside that industry, and having nothing whatever to do with it, register themselves as an organization for the purpose of raising an industrial dispute in the employers' industry within the meaning of the Act, although the same employers in precisely the same circumstances could not. Such unequal treatment is opposed to the reciprocal aspect of the whole Statute. I feel no doubt that the industry referred to in s. 55 is the same in both cases, and intended to be the connecting link between the two sets of co-operators, employers and employed. Section 60 (h) bears out this construction very forcibly by placing both employers and employees on the same footing as to cancellation for insufficiency of numbers.
If, then, there were no special interpretation in s. 40 of the word "industry," there could hardly be any doubt that "industry," whatever occupation it included, at all events meant the industrial operation contributed to both by the capital of the employer and the labour of the employees, united together in the work of supplying the needs of society. But some special interpretation was essential to make clear which of the possible industries-or industrial operations so jointly contributed to and existing in the community-were included in the combined expression "industry." To answer that question the definition of industry was framed to embrace practically all such operations except those expressly reserved. Whatever business, or trade, or manufacture, or undertaking, or calling, or service, or employment a man or set of men engage in, to supply the public demands, is to be included as "an industry," provided in it persons are employed for pay, hire, advantage or reward. In other words, every industrial operation whatever in which the public are interested, and which by reason of disputes between those whose united efforts as employers and employees may be retarded or stopped, is an industry in the sense intended by Parliament. The special definition was not to discriminate between employers' industries on the one hand and employees industries on the other, leaving the public out of consideration, but it was to embrace all industries in which both could be said to participate in meeting the demands of the people of the Commonwealth. "Calling," and "service," and "employment" are terms which could, of course, be used to define either, and the primary meaning of words is a goods starting point. But the question always is as to the meaning of the words as used in the connection in which they are found, and their primary meaning is only one factor in determining their real signification. It was said by Lord Romilly, speaking for the Privy Council in the case of The "Lion", [F34] at p. 530:"The meaning of particular words in an Act of Parliament, to use the words of Abbott C.J. in Rex v Hall, [F35] is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used." Here they are found linked with a phrase from which they cannot be separated, and which imparts a specific character to them. The calling, or service, or employment must be one "in which persons are employed for pay," that is, in which there are paid employees, so as to be a calling, service, or employment in which the possibility of a dispute can exist. In other words, the calling, etc, must be one which embraces the two sets of contributors-employers and employed. The disjointed meaning relied on by the claimants is consequently not reasonably open.
Reliance was placed also on the exception as to domestic service. But that is not, in my opinion, in any case sufficient to destroy what is otherwise plain. Not only may the reference have been merely used to indicate a negative, so as to allay fears, or prevent a possible argument as to constitutionality, but it is clear to my mind that, quite consistently with the interpretation I have given, some domestic servants would, but for the exception, be included in the arbitration provisions of the Act. They may possibly be so under the present form of the legislation. A very large number of persons are engaged as principals in the occupation of supplying public requirements, such as boarding-house keepers, and their industrial operations-that is, their "calling"-indispensably involves the employment of a vast number of domestic servants. Similarly with hotels. These are quite possible, and indeed probable, instances that may have occurred to the mind of the legislature, of businesses or undertakings or callings that in their operations directly connect the public, the employers, and the employees; and as that is so, the separate signification of "industry, as applying only to the employee, derives no support from the exception of domestic service. Therefore, while feeling the deepest respect for the contrary view, and regretting the loss of time and trouble to the parties in the present case, I am personally unable to experience the least hesitation in answering the first question in the negative.
As to the second question, the objection is in my opinion fatal to the case. Parliament has permitted the Court to have cognizance, not of every industrial dispute, but only of such as are brought before it in one of three prescribed ways-namely, (a) by Registrar's certificate, (b) by submission by an organization, and (c) by a State authority. The second was the only mode attempted; and if there was no legal organization to submit the dispute, it necessarily follows the Court can have no cognizance of the matter.
Sec. 57 does not get over the difficulty. It makes the Registrar's certificate conclusive evidence of two facts in connection with the association, namely, registration and compliance with the prescribed conditions preliminary to registration. But that leaves untouched the question of whether the association prior to registration was one of the description required by s. 55. That is at the root of the matter, and if the foundation goes, the edifice cannot stand.
The third question is of much importance, and though not strictly necessary to be answered in this case, having regard to the answers already given, yet it has been argued, and for the guidance of the learned President, and indeed of all concerned, the opinion of the Court may advantageously be expressed.
As to the Sydney Board of Water Supply and Sewerage, the matter seems clear enough.
The position it holds under the Statutes (No. 32 of 1880 and No. 28 of 1888) is one which, for all practical purposes, identifies it with the central Government, that is the Crown; and the only purposes of the Act are strictly governmental.
That Board, therefore, would not in my opinion be subject to the jurisdiction of the Commonwealth Arbitration Court.
The Melbourne City Council stands in a different position. It is primarily constituted for the purposes of municipal government, and in respect of its functions of legislation and administration may be said to be a subordinate local agent for the purposes of government. With this aspect we have no direct concern here; these functions are not under consideration except in one way. Mr. Starke argued that whatever other powers or authorities were granted to a municipal authority became ipso facto governmental powers and authorities, and he relied on some American authorities. As I read those authorities they look the other way, and tell against his argument. I need not refer further to the American cases cited during the argument, but would add to them a useful case, Lloyd v City of New York; [F36] cited approvingly in O'Donnell v City of Sycrause, [F37] at p. 562. But dealing with the question on reason and the recognized principles of British law and precedent, it is difficult to see how the contention will hold. The mere fact that a corporation is constituted a regulating agent for certain purposes, and for those purposes is entrusted with governmental powers, cannot alter the nature of added capacities which are inherently different. There is a manifest distinction between governing and trading. Regulating, in the character of lawgiver, the industrial operations of others, cannot be classed as one with personally engaging in such operations in competition with others. The two things may simultaneously reside in the same structure, but they are not therefore related.
Local government is true government; it is as much a subordinate branch of the Sovereign legislative power to make a by-law or declare a rate as the order of a local justice of the peace is a subordinate branch of the Sovereign judicial power. For the purpose of non-interference with their governmental functions, a municipal corporation might fairly claim to stand as Blackburn J. described it in Mersey Docks v Cameron, [F38] at p. 464 in consimili casu with Crown servants; and to rely on the position, to borrow Lord Cranworth's phrase in the same case, [F39] at p. 508 as "extending ... the shield of the Crown to what might more fitly be described as the public government of the country." But, on the other hand, corporate trading is none the less trading, and is on a wholly different plane. The difference is ineradicable. Sir Lloyd Kenyon pointed this out in Moodalay v Morton, [F40] at p. 471, where he said of the East India Company:"They have rights as a sovereign power, they have also duties as individuals; ... As a private company, they have entered into a private contract, to which they must be liable."
Apart from the doctrine of exemption of the Sovereign and of foreign independent Sovereigns and their representatives from jurisdiction, The "Charkieh", [F41] at p. 99 contains useful reasoning and authorities in this connection. And that doctrine is the only possible ground on which the municipality could claim exclusion from the jurisdiction of the Arbitration Court in respect of its commercial operations. My opinion, stated not as a final decision, but as a strong impression after argument and careful consideration, is that municipalities engaging in what is simply trading for profit, just like other traders, must, in Lord Stowell's words in The "Swift", [F42] at p. 339, quoted on the page above referred to, "traffick on the common principles that other traders traffick." And the destination of the proceeds does not affect the character of the operation from which they are derived. It would, of course, be monstrously unfair to the general body of traders if the competing municipalities were not so obliged, though this is not in itself a sufficient legal reason. I offer no opinion whatever as to whether, under our Constitution, a State, by first exercising sovereign legislative power, authorizes itself to embark, and does embark, in ordinary industrial enterprises, would be pro tanto subject to this branch of federal jurisdiction.
The fourth question cannot be answered by a simple "yes" or "no." To do so would leave the matter open to some misunderstanding. The Act, by s. 25, frees the Court and the learned President from all rules of evidence in order to decide any question whatever which comes before the tribunal for decision under the provisions of the Act. But the same Act makes the existence of a dispute an essential preliminary to any jurisdiction at all. Consequently, before s. 25 can apply, we have to assume the existence of a dispute; and its application must therefore be limited to facts, other than the existence of the dispute.
The jurisdiction of the Court to deal with the matter before it depends on the actual existence of the dispute, and not on what material its existence or non-existence is made to appear to the Court itself. The Court may, in order to ascertain the facts as to its existence, proceed, without being open to legal challenge on that account, either by rigid adherence to the ordinary rules of evidence, or by accepting any information it thinks proper or convenient in the circumstances. What it has to do at the outset is to satisfy its mind that it is not overstepping the bounds which Parliament has laid down for it.
The learned President is then, so far as the ascertainment of the dispute is concerned, at least so long as the Act remains in its present form, in precisely the same situation as every other Judge whose jurisdiction depends upon the existence of some extraneous circumstance. What is he to do? The situation is described by Coleridge J. in Bunbury v Fuller, [F43] at p. 140 thus:"Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the Judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject-matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main matter in consequence of an error, on this the Court of Queen's Bench will issue its mandamus or prohibition to correct his mistake." My answer then is, that the obligation to inquire as to the existence of the dispute arises as an incident to the functions of determining the issues before the Court, and for the purpose of seeing that every essential condition of jurisdiction laid down by the law is observed. As the presence or absence of that condition, if contested, must eventually depend upon ascertainment in the way provided by the rules of evidence applicable to such an inquiry, that is, the rules of common law so far as no statutory provision exists, and according to statutory methods so far as any are provided, I can only suggest that the safer way would be to deal with this preliminary inquiry according to the rules which would have to be followed by any Court which might subsequently have to reconsider it.
As to the fifth question, the certificate is not evidence of the existence of an industrial dispute as the law regards it, but is prima facie evidence that the relations between the parties, assuming them to amount to an industrial dispute, extend beyond the limits of one State.
With regard to the sixth question: Apart from express provision on the subject, the implied power to refer any matter to a Board or any other person or persons stood as it has already been expressed by me in the Bootmakers' Case, [F44] at p. 62. Since that judgment was pronounced, the legislature has, in my opinion, no longer left the matter to implication so far as a Board of Reference is concerned. I say nothing about purely ministerial references to a Court officer for the purpose of working out details of directions. But with regard to a Board of Reference Parliament has, as it appears to me, stated precisely what it requires, and the power, whatever it may be, to refer matters to a Board must now be sought in s. 40 (a) of the Act 1904-1910.
The proposed clause was not intended to be made in exercise of the powers given by that section, but in any view it must, I think, in several particulars unnecessary now to state, be considered as conferring too much power on the Board.
I would only add that nothing was suggested which would cast doubt on the validity of s. 40 (a).