Ex parte Professional Engineers' Association

(1959) 107 CLR 208
[1959] HCA 47

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(Decision by: Kitto J)

Ex parte Professional Engineers' Association

Court:

Judges: Dixon CJ
McTiernan J
Fullagar J

Kitto JTaylor J
Windeyer 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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Decision by:
Kitto J

The endeavour which has been made on behalf of the government departments and governmental bodies represented before the Court to maintain that the governmental nature and purpose of their functions excludes the possibility of their being engaged with members of their staffs in an industrial dispute in the constitutional sense of the expression, could not succeed without a radical departure from established constitutional principle.

The alternative endeavour, to place upon the provisions of the Conciliation and Arbitration Act which define "industrial dispute" for the purposes of that Act a construction which excludes disputes, even though they be industrial disputes in the constitutional sense, which arise between the departments and bodies referred to and members of their staffs, finds support in verbal considerations but fails to give effect to the intention which nevertheless appears from the Act with sufficient clearness. For both these conclusions I respectfully adopt the reasons which have been stated by the Chief Justice. (at p250)

2. This means that the Association is entitled to succeed in the proceedings in this Court, but it succeeds only by a modification of the attitude which the log was, as I read it, intended to maintain. It put forward claims in respect of salaries and conditions of employment "for its members and all other Professional Engineers eligible for membership" when in "an employment involving the performance of Professional Engineering Duties". The expression "Professional Engineering Duties" was defined to 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 definition seems to have been carefully framed to give effect to a view that on the question whether a dispute arising from the rejection of the log is industrial (in the constitutional and statutory senses) the nature of the duties involved need not be considered for any other purpose than to see whether the qualifications required for the performance of any part of them are of the order which is indicated.

The contention thus intimated is logically pursued in the definition of "Professional Engineer" as meaning a person qualified to carry out Professional Engineering Duties as previously defined. It is not weakened by the fact that eligibility for membership of the Association, which needs to be considered because the claiming clause of the log refers not only to members but to Professional Engineers eligible for membership, is confined to persons temporarily, permanently or "usually" employed in or in connexion with "the industry of engineering" (whatever that may mean). (at p251)

3. It seems that at one stage of the argument before the Commission counsel for the Association used language which was apt to express the view apparently held by the draftsman of the log; for the judgment of the majority of the Commission attributes to him the contention that "every time an engineer is employed as an engineer he is employed industrially". This, however, goes beyond the general tenor of the submissions made. Another quotation seems to show more accurately the proposition that was being put forward: "This Commission", Mr. Gillard said, "has jurisdiction to examine the activities of the engineer engaged by the respondent and to discover whether that activity is industrial.... Is it an activity in regard to which, if the employer were a private person, the employee would be said to be industrially employed; or, putting it another way, looking through the eyes of an employee, can he be said to be employed in an industrial way". (at p251)

4. In substance this submission was sound, as the judgment of the Chief Justice shows; but perhaps the point may usefully be underlined that to give effect to it is to hold that even though a single demand, intended to be inseverable, is made in respect of a mass of employees of whom some only are so employed that a dispute in relation to them exclusively would be an industrial dispute in the constitutional sense, a refusal of the entire demand creates an industrial dispute in relation to the employees who are so employed. The point is important here, because the Association sent its log to employers with a letter which stated the Association's intention, if the employers were not prepared either to grant the demands or to meet the Association in conference, to seek to have "the whole matter in dispute" brought before a commissioner with a view to the obtaining of awards. If, in pursuance of the intention which seems to have animated both the log and the letter, the Association had maintained before the Commission and this Court that between the Association and all the employers served, or between it and each employer served, or (as the form of the proceedings in the Commission would seem to suggest) as between it and each of ten groups of the employers served, there was one indivisible dispute as to all employees of the description contained in the claiming clause at the head of the log, and that that one dispute was an industrial dispute, the contention must have failed.

It would not have been correct, in my opinion, to hold that, because (as no doubt the fact is) the employees are very few who fall within the description but are employed on work of such a kind that a dispute limited to them would not be industrial, the entire dispute must be allowed the general character of an industrial dispute. The reason why the Commission has authority to proceed is that the parties are in dispute as to employees the character of whose work would make a dispute as to them alone an industrial dispute. There is for that reason an industrial dispute as to those employees, and none the less so because the dispute as to them forms part of a wider dispute. To the former dispute, but not to the latter, the constitutional power extends and the authority of the Commission exists. (at p252)

5. In my opinion the applications for prohibition should be refused, and on the application for mandamus there should be an order absolute so expressed that the Commission will proceed to ascertain in relation to each employee concerned, by considering the duties of his employment, whether the dispute or disputes created by the making and non-acceptance of the demands in the log is or are industrial (in the constitutional sense and within the meaning of the Conciliation and Arbitration Act) in so far as it relates or they relate to him, and will proceed to settle so much of the dispute or disputes as is thus found to be industrial. (at p253)