Federated State School Teachers' Association of Australia v State of Victoria
41 CLR 569(Judgment by: Knox CJ, Gavan Duffy J, Starke J)
Between: Federated State School Teachers' Association of Australia
And: State of Victoria
Judges:
Knox CJIsaacs J
Gavan Duffy JRich J
Starke 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
Judgment date: 22 April 1929
Sydney (heard in Melbourne)
Judgment by:
Knox CJ
Gavan Duffy J
Starke J
The States of Victoria and Tasmania have established a system of public instruction or education, and derrayed the cost of so doing out of moneys appropriated by their Parliaments. The system, as to primary or elementary education, is free, secular and compulsory; but in some special subjects and in some classes of schools, such, for instance, as District High Schools in Victoria and certain Technical Schools in Tasmania, fees may be prescribed for tuition, pursuant to statutes and regulations of the particular State.
The relevant statutes of the two States are as follows: Victoria, Education Acts 1915-1916; Tasmania, Education Acts 1885, 1898 and 1905, Free Education Act 1908. The States have to erect and maintain, at great cost, school buildings in which instruction can be given, and to employ a great many teachers for the purpose of imparting that instruction. A large number of these teachers have formed an association, and have registered it as an organization under the Commonwealth Arbitration Act. The organization, in 1928, filed a plaint (No. 241 of 1928) in the Commonwealth Court of Conciliation and Arbitration, alleging an industrial dispute extending beyond the limits of a State as to the salaries and conditions of employment with respect to persons employed by the States of Victoria and Tasmania, in connection with teaching, under the appropriate statutes and statutory regulations of each State relating to education. In March 1929 the organization issued a summons out of this Court under s. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1926, applying for a decision on the following questions:
"Is the dispute the subject matter of plaint No. 241 of 1928 in the Commonwealth Court of Conciliation and Arbitration existing or threatened or impending or probable as an industrial dispute extending beyond the limits of any one State within the meaning of
- (1)
- the Constitution of the Commonwealth,
- (2)
- the Commonwealth Conciliation and Arbitration Act 1904-1926?"
This summons was ordered to be argued before the Full Court, and has been so argued, and now falls for decision.
In Amalgamated Society of Engineers v Adelaide Steamship Co, [F1] at p. 155 this Court held
"that States and persons natural or artificial representing States, when parties to industrial disputes in fact, are subject to Commonwealth legislation under pl. xxxv. of s. 51 of the Constitution, if such legislation on its true construction applies to them."
And the Commonwealth Conciliation and Arbitration Act 1904-1926, s. 4, provides that
"'industrial dispute' means an industrial dispute extending beyond the limits of any one State and includes ... any dispute in relation to employment in an industry carried on by or under the control of ... a State or any public authority constituted under ... a State."
So that there is no doubt that the Commonwealth legislation applies in this case to the States. The question, then, is whether the organization and its members can become involved in an industrial dispute with the Governments of the States or either of them in connection with the educational systems established by them.
Looking at the matter from the point of view of the States, can these systems be described as industries or industrial activities? Economists, notably Mr. J. A. Hobson (The Industrial System), say that a scientific interpretation requires us to include in the word "industry" processes which are concerned with services such as the administrative services of public officials and the skilled professional advice of doctors and lawyers. But the Constitution is not a thesis upon economics. It is an instrument of Government, dealing, in s. 51, pl. xxxv., with a subject matter-industrial disputes-in the ordinary and popular acceptation of that term. Apart from the economic view just mentioned, several suggestions have been made in this Court as to the interpretation of the term "industrial dispute."
The "sphere of industrialism," it has been said, will be found in operations in which capital and labour are contributed in co-operation for the satisfaction of human wants and desires (Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation [F2] ); or in any operations in which the relation of employer and employee subsists, including, perhaps, demarcation disputes (Australian Insurance Staffs' Federation v Accident Underwriters' Association [F3] ); or in operations which are carried on wholly or mainly by manual labour (Municipal Employees' Case; [F4] Insurance Staffs' Case [F5] ); or in operations with a view to the production or distribution of wealth (Insurance Staffs' Case [F6] ). No other interpretation or description of "industrial dispute" or the "sphere of industrialism" was attempted at the Bar; and in these suggestions will be found, we think, the most divergent meanings of which the phrases are reasonably capable.
The economic view has never been accepted by this Court: it is too wide. That confining the description of the phrases to operations carried on by manual labourers is rejected as too narrow (Insurance Staffs' Case [F7] ). And the view that the sphere of industrialism is to be found in operations in which the relation of employer and employee subsists is also, in our opinion, too wide: it approaches the economic view, and would bring within the range of the industrial power of the Commonwealth services of all kinds whatever. It cannot, we think, be supported, for it ignores the use of the word "industrial" in the composite expression "industrial dispute" in the Constitution.
Testing this case, therefore, by the other suggested criteria or badges of industrialism, can it be said that the educational activities of the States constitute an industry? So far as the matter is one of fact, we would say that they cannot. They bear no resemblance whatever to an ordinary trade, business or industry. They are not connected directly with, or attendant upon, the production or distribution of wealth; and there is no co-operation of capital and labour, in any relevant sense, for a great public scheme of education is forced upon the communities of the States by law. It was said that if the activities were carried on by a private person, such as a schoolmaster, then the operations would be described as a business, a trade, or an industry. Shortly, that argument is met by the fact that a private person could no more carry on this system of public education than he could carry on His Majesty's Treasury or any of the other executive departments of Government; and if he were authorized to do so, which is almost inconceivable, then he would no more carry on an industry than the State does now.
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. An occupation confined to teaching in the schools of the States has impressed upon it the character of the activity in which it is exercised. If carrying on a system of public education is not within the sphere of industrialism, those who confine their efforts to that activity cannot be engaged in an industry or in an industrial occupation or pursuit.
The questions submitted for the decision of the Court should be answered in the negative.