Ex parte Professional Engineers' Association

(1959) 107 CLR 208
[1959] HCA 47

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(Judgment by: Windeyer J)

Ex parte Professional Engineers' Association

Court:

Judges: Dixon CJ
McTiernan J
Fullagar J
Kitto J
Taylor 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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Judgment by:
Windeyer J

The fundamental question in this case is whether the Commonwealth Arbitration Commission can, by an award binding upon a State and its agencies, regulate the condition of service of professional engineers employed in engineering tasks in the construction or maintenance of State works or in the conduct of public utilities controlled by a State. Those who contend that the Commission has no power to make such an award contend in substance that professional engineers so employed by a State or its agencies are not employed in industry; and therefore that they, or the Association of Professional Engineers as representing them, cannot be, or become, engaged in an industrial dispute; that they are therefore beyond the reach of the constitutional power under s. 51 (xxxv.). (at p266)

2. The claim as formulated in the log is that all professional engineers employed as such by any person anywhere in Australia should be paid salaries at the rates specified. What in terms is sought is, therefore, that the Commission should fix a general scale of remuneration and the conditions of employment for all professionally qualified engineers. The claim purports to be made by the Association on behalf of its members and all other professional engineers eligible for membership. Those eligible for membership are stated to be persons who have certain university degrees or similar qualifications and who are employed "in or in connexion with the industry of engineering". This description seems to me inapt according to the ordinary use of words. There is an engineering industry properly so called. It comprises various business and undertakings in connexion with which engineers, mechanics and others exercise their skills and callings. But "the industry of engineering" seems an inappropriate description of the occupation of engineers, as this Court said in Amalgamated Society of Engineers v. Australasian Institute of Marine Engineers (1909) 9 CLR 48 and see Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Pty. Co. Ltd. (1911) 12 CLR 398 . An alteration of the definition of "industry" in the Commonwealth Conciliation and Arbitration Act, made after the latter case, has rendered those decisions no longer applicable in the construction of the Act. Since 1911 it has been permissible, for the purposes of the Act, to describe as industries the trades, crafts and callings of employees as well as the enterprises in which they pursue them. So that in the construction and administration of the Act (including s. 70) such descriptions as, for example, "the industry of engineering" or the barbarous "Local Government, Municipal and Statutory Corporations Industry" have become part of the jargon of industrial law, although sometimes "meaningless in ordinary language" (Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia (1944) 68 CLR 628 , at p 634). The vocabulary thus engendered may be useful, even necessary, for the exercise of arbitral jurisdiction under the constitutional power; but it cannot be used to determine the scope of that power or to enlarge the meaning of the expression "industrial disputes" in the Constitution. (at p267)

3. Expressions such as "the banking industry" or "the insurance industry" are not really a proper use of words; and the use of such expressions in industrial law does not justify propositions such as "banking is an industry" to be used as major premises in arguments. In the course of the argument in this case the Chief Justice said that the ordinary meaning of terms has shifted over the years and asked: "is it not quite inappropriate to speak of the banking industry?" With this I respectfully agree. We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known.

But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes. The word "industry" has suffered, as words do, by the attrition of usage and from snobbery and the desire for genteelism, so that now we hear for example of the hire-purchase industry - "trade" or "business" would not suffice - the racing industry, and even the betting industry. Correctly used the word "industry", however, still has a variety of meanings. Sometimes it is used in association with, and without any sure distinction from "trade" and "commerce". In one sense it denotes activities other than agriculture; in another it comprehends agriculture. Sometimes it is used to denote private enterprises carried on by private capital for profit; but often it includes "nationalized" industries. It ordinarily carries a concept of work directly concerned with the production, maintenance, repair, distribution or transport of tangible things and also with the provision of intangible things such as gas and electricity.

It is this sense that I think is involved in the expression "industrial dispute" in par. (xxxv.). In Australian industrial law persons employed in banking and insurance businesses can be parties to an industrial dispute (Australian Insurance Staffs' Federation v. The Accident Underwriters' Association (1923) 33 CLR 517 ). But this, I think, must now be taken to be because their activities have a direct connexion with industrial operations in the more ordinary sense of the term. They are an adjunct of industry. It was at one time considered that any dispute between employers and employees in any type of undertaking was within the constitutional power. But in the Teachers' Case (1929) 41 CLR 569 this view was rejected as too wide; and we should, I have no doubt, follow this later opinion. (at p268)

4. The dispute here is a "paper dispute". To permit the creation of a malady so that a particular brand of physic may be administered must still seem to some people a strange way to cure the ills and ensure the health of the body politic. But the expansive expositions by this Court of the meaning and effect of par. (xxxv.), especially in the Burwood Cinema Case (1925) 35 CLR 528 and in Amalgamated Engineering Union v. Metal Trades Employers' Association (1935) 53 CLR 658 have brought a great part of the Australian economy directly or indirectly within the reach of Commonwealth industrial law and of the jurisdiction of the Commonwealth industrial tribunal. The artificial creation of a dispute has become the first procedural step in invoking its award-making power. Nevertheless, the tribunal cannot follow the course which courts not fettered by statute have followed in the past, and enlarge its jurisdiction by the simple process of allowing all persons who would invoke it to do so by making fictitious but unchallengeable assertions. It is not possible by fictions to transgress the boundaries of the Constitution. A dispute may be a paper dispute. It must still be a real dispute, really extending beyond the boundaries of any one State. That condition, we must assume, has been satisfied in this case according to the accepted doctrine of this Court. But is this dispute an industrial dispute? That is the question here. And the Association of Professional Engineers only begs the question by describing its members as all engaged in the industry of engineering. (at p268)

5. It seems to me unnecessary to attempt any exhaustive definition of the expression "industrial dispute" or to examine in detail all the definitions or explanations of it which have been offered in the judgments in earlier cases.

Those judgments are to be read in relation to the circumstances of each case and to the arguments which were then adduced. Some judgments are couched in terms of economic theory, some in sentences clearly intended to be rhetorical rather than exact. Some of the attempted definitions are inconsistent with others. Some have been deliberately discarded in later decisions. To select passages from them and to subject their words to detailed analysis as if they provided a definitive exegesis of par. (xxxv.) can be most misleading. (at p268)

6. Whatever other activities may, for the purposes of par. (xxxv.), be properly described as "industrial", the term ordinarily includes manual labour - which is prima facie industrial - and the direction, superintendence and management of such labour and the working, direction and management of machinery and plant used in connexion with the production or distribution of material things. We need not explore the horizon if the thing we are concerned with lies well within it. To quote Higgins J.:

"It is not necessary for us, in order to determine whether this dispute... 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. To my mind, 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.

The work of professional engineers engaged upon constructional work in projects such as were described in the evidence in these proceedings, is, in my view, clearly an industrial employment. And so is the work of engineers employed for the maintenance and continuous functioning of undertakings and facilities concerned with production and distribution of material things and with the supply of gas, water and electricity. This is not the less so because these engineers are by virtue of their education properly said to be members of a profession. They are still engaged in industry. But all professional engineers are not engaged in industrial activity. Some engineers employed by the States and by the State bodies which are parties to these proceedings may be engaged upon work not of an industrial character.

Their duties may, for example, be directly related to the determination of policy and only indirectly and remotely connected with the translation of policy decisions into industrial activity. But that does not mean that the dispute is not an industrial dispute or that this Court should prohibit the Commission from dealing with it. It means only that the claim that all the persons whom the Association is said to represent are industrially employed may be too wide. But the Commission when dealing with a dispute does not have simply to accept or reject the log of claims out of which the dispute arose.

That the log, in so far as it seeks a general scale of salaries for professional engineers, asks more than the Commission could properly award does not mean that the Commission should not be permitted to make a proper award. The duties of some professional engineers have only a remote and indirect relationship with industrial activities. It would not be proper for the Commission to regulate their conditions. But this is a matter for the Commission to sort out, not a ground for denying it jurisdiction to do so. The manner in which Mr. Commissioner Portus approached the question seems to me, generally speaking, correct. (at p270)

7. In my view, the dispute is thus within, and well within, the ambit of constitutional power. A further question argued was whether the Conciliation and Arbitration Act 1904-1958 confers power on the Commission to entertain the matter. It was argued - and the argument was stated in an attractively succinct way by Mr. Wilson for the State of Western Australia - that the Parliament had not exhaustively exercised its powers under par. (xxxv.); and that in cases where a State or a State authority is the employer Parliament had conferred jurisdiction upon the Commission only when the State or authority is carrying on an industry in the sense of a single organic commercial undertaking. The form of the definitions in the Act gives some scope for the contention, difficult though it would be to apply in practice the distinction said to arise.

Nevertheless I do not think the restricted construction contended for is correct. The purposes of the relevant provisions of the Act when read together is, I think, to bring within the jurisdiction of the Commission all industrial disputes with which it can be constitutionally empowered by Parliament to deal, including disputes arising between the States and their organs and agencies as employers and persons industrially employed by them. I have had the advantage of reading the judgment of the Chief Justice and need only say that I agree in his conclusions as to the effect of the statutory definitions. (at p270)

8. That suffices to dispose of the case. But it was elaborately argued and the ground taken by the States raised an important question, on which I will therefore add some comments. After listening to the argument, and later reading the transcript of it and the judgments in other cases which were so carefully canvassed, one comes back, with some relief, to the statement in the majority judgment of the Teachers' Case (1929) 41 CLR 569 that "the Constitution is not a thesis upon economics. It is an instrument of Government dealing, in s. 51, par. (xxxv.), with a subject matter - industrial disputes - in the ordinary and popular acceptation of that term" (1929) 41 CLR, at p 574. It was urged on behalf of the States that, to determine whether an employee was in industrial employment, attention should be concentrated upon the enterprise or undertaking of the employer rather than the activity of the employee. I have already said that it is sometimes inappropriate to describe a craft or calling as an industry. But this does not mean that the nature of the work actually performed by particular employees is not to be regarded in seeing whether a dispute between them and their employers is an industrial dispute. What, to my mind, has to be considered is the nature of the employee's work and the total setting in which it is performed. A trade or calling may be prima facie an industrial occupation without those who follow or profess it being always industrially employed. For example, shearing is prima facie an industrial occupation; but a shearer engaged to demonstrate his art to classes of agricultural students is prima facie not industrially employed. On the other hand, work indistinguishable from ordinary industrial activity may be done by persons who could not properly be described as industrially employed, for the simple reason that they have a character which puts them outside the sphere of industry. The example most relevant to the present case is that of an army officer in the Corps of Engineers or in the Corps of Electrical and Mechanical Engineers. He is a professionally qualified engineer.

His peace-time work may be of a civil engineering and constructional character, or he may be engaged in supervising the electrical and mechanical maintenance and repair of, say, motor vehicles - activities which in themselves differ in no way from similar activities in what may conveniently, for this purpose, be called private industry. Yet soldiers, whatever their duties, can never properly be said to be employed in industry. A mutiny can never become an industrial dispute by miscalling it a strike. This is not because, as was put in argument, soldiers are not employees. They are. Persons in military employment are in ordinary language, and sometimes for legal purposes, described as employed, although their engagements are not ordinary contracts of service. It is simply that service in the naval, military or air services "would not normally be classed as giving rise to a trade dispute or included in trade or industry" (per Lord Porter in National Association of Local Government Officers v. Bolton Corporation (1943) AC 166, at p 192).

Similarly, service in the police force cannot, in my view, lead to an industrial dispute. And this Court has held that school teachers employed in the education service of a State cannot be parties to an industrial dispute.

In some States certain occupations which are not industrial may be regulated by the State industrial tribunals. That however is because State legislatures can, if they wish, make the machinery of their industrial law available for the regulation of employment which is not strictly industrial; and, if they choose to, they can do this by statutory definitions twisting the ordinary meaning of words. But the Commonwealth Parliament cannot take liberties with the language in which its powers are expressed. (at p272)

9. Counsel for the States started with the proposition that disputes are either industrial or not industrial. That is logically incontestable; and, as was said by counsel in Repton v. Hodgson (1850) 3 HLC 72 , at pp 79, 80 (10 ER 28, at p 31) in a sentence which Jordan C.J. brought to light in an essay,

"Like Sinclair's well-known division of sleeping into two sorts, namely, sleeping with or sleeping without a nightcap, it would seem to exhaust the subject".

But the presence or absence of the quality "industrial" in a dispute is not as indisputably apparent as the presence or absence of a nightcap on a sleeper. And to collect a miscellany of diverse elements referred to in different judgments as characteristics of industrialism, and treat them all as either collectively or individually significant, so that the presence or absence of one may be decisive is, in my view, fallacious. It can lead to a sophistic sorites. It was, however, contended that these difficulties were surmounted by treating the occupation of the employer as the cardinal factor.

Then it was said that, as government is not industry, a complete antithesis exists between activities which are governmental and those which are industrial. Our task it was then suggested was, in counsel's words, to see in each case "whether the particular activity can truly be said to be governmental or industrial".

Thus, instead of being asked to say whether a particular project, enterprise or undertaking in which engineers were employed was by reason of its nature one in which an industrial dispute could occur, we were asked to consider whether it was or was not a governmental project, enterprise or undertaking. What for the purposes of this argument was meant by "governmental" was stated only in broad generalities such as "government organization for solving a communal problem", and whether as a way of dealing with "a communal need" it was "akin to the ordinary departments of state". It was also said that whether any activity was industrial or governmental was to be determined by seeing whether it was "more akin to the type-specimen government or the type-specimen industry". This last phraseology was apparently derived from remarks of Latham C.J. in his judgment in the Victorian Public Servants' Case (1942) 66 CLR, at p 501. It may, no doubt, sometimes be helpful, to adopt for the social sciences this method of classification, familiar in natural history; but it can only be satisfactory if the type-specimens with which comparisons are to be made are postulated, and their relevant attributes so ascertained that in making comparisons propria can be distinguished from accidentia. If not, the result is a mere logomachy. But the dialectical difficulties of following the path suggested can, I think, be disregarded, for the simple reason that it seems to me that here it is the wrong path. The question is not to be solved by asking is a particular activity governmental; because, for the matter in hand, the assumed complete antithesis between industrial and governmental activities does not exist. That a particular activity is carried on by government, is ordinarily considered as inseparable from government and could not be carried on by private enterprise in a society organized as ours is - as, for example, taxation, registration of lands titles, the administration of justice, police - is a vital circumstance to be considered in determining whether persons connected with such an activity could ever properly be said to be parties to an industrial dispute. But to say that an activity is governmental does not determine that it is not industrial in the relevant sense of that word. It was sought to overcome this by a change of words - in effect, by a new proposition, namely, that a public utility cannot be an industry. What exactly was meant by public utility I am not sure. It is, however, not without interest that Chambers Encyclopedia (New Edition 1950) says under the heading of "Public Utility" that "it is a term difficult to define", and, inter alia, that "the concept now extends to publicly owned industries". It was argued that one would not ordinarily say of, for example, a government water supply that the government was "running an industry". Possibly not. Certainly a person asked to list the principal industries of a country would not ordinarily include among them the supply by the government of electricity or water to the inhabitants. But that again is only because "industry" has more than one meaning. An ambiguous middle term can lead to a seductive fallacy. An accident to a worker at a government power-house or waterworks would be properly called an industrial accident; and a strike of workers employed at a power-house or in the construction of a hydro-electric system or a water reservoir would surely ordinarily be called an industrial dispute? The States' argument drove them to contend that workers in, at all events some, nationalized industries - electricity supply was given as an illustration - were incapable of being disputants in an industrial dispute. Yet they had to concede that immediately before the particular undertaking was taken over by the State, the same workers had been engaged in industry. If at the actual time of the take-over a dispute was in progress at the works it would apparently have begun as an industrial dispute but become translated. This and other extravagant illustrations only expose the fundamental fallacy.

A nationalized industry is clearly a government undertaking, but it is still an industry. (at p274)

10. The States relied strongly on the decision in the Teachers' Case (1929) 41 CLR 569 and sought from it to extract support for the proposition that government engineers are outside the field of industry and industrial disputes because their employer is the Crown. I do not think that, properly understood, that case yielded what was sought to be got from it. What the majority judgments there established was that teaching is prima facie not an industrial activity; and that teachers in the State schools are not engaged in industry.

That I would have thought was beyond doubt. But I can see nothing in the judgments to aid the proposition that all forms of employment under government are outside the realm of industry. Counsel referred also to the recognition, by Isaacs J. in particular, in other judgments that certain of the more important and ancient functions of government are not of an industrial character and that therefore State servants engaged in them could not be brought within the reach of the Commonwealth industrial tribunals. These statements by Isaacs J. that the Commonwealth industrial power could not be used to trammel the States in the essential functions of government were merely qualifications of his assertion of the wide scope of that power.

And they were first made when the doctrine of the immunity of State instrumentalities was being overthrown and the States and their servants industrially employed were being made subject to the Commonwealth industrial law. As convenient descriptions of non-industrial governmental functions of the States he referred to "regal functions" and adopted the phrase "the primary and inalienable functions of government". But these phrases, however expressive of an idea, have no precise legal meaning. It is thus not helpful to ask of any activity of the State "is it a regal, or an inalienable, function?" Blackstones Commentaries, Chitty's Prerogatives and the article on "Constitutional Law" in the last edition of Halsbury's Laws of England would give markedly different pictures of regal functions, in the sense of activities undertaken by the Crown and directed by the Queen's Ministers of State, whether by virtue of the prerogative or by authority of statute. And, as for the "inalienable" functions - usually taken to be such matters as the maintenance of order and the administration of justice - here too there is no precision. The functions which government in fact undertakes vary with the time in history and the country concerned and the nature of its polity. If what is meant is what should be the functions of government and the sphere of the state, the answer will reflect political philosophy current at a particular time or an individual predilection.

Disciples of Herbert Spencer and of Karl Marx would give very different answers. The maintenance of the Post-Office is to-day an established function of government in most countries; and the Postmaster-General is, in Britain and Australia, a Minister. But before the reign of Charles I, the provision of postal services was not a function of government in Britain. To use modern, but now hackneyed language, the government then "entered the market place" when it undertook the carriage of letters. Yet in 1857 the Post-Office was for rating purposes taken to be in exactly the same position as the great Departments of State. Its functions were governmental - regal. (Smith v. Guardians of Birmingham (1857) 7 El & Bl 483 (119 ER 1326), Coomber v. Justices of Berks (1883) 9 App Cas 61, at p 73). In 1911, however, an English writer could still say that "the post office and the coinage are as yet our only nationalized industries" (MacGregor, The Evolution of Industry, p. 210). He was referring to the industrial undertakings of the central government as distinct from those of local authorities. (at p275)

11. I cannot see any ground for saying that, in law, any one activity which government undertakes is really any more a true function of government than any other. No fixed criteria for the application of the assumed distinction have been formulated. And it has no firm historical foundation. It is a reflection of political philosophies which may influence men's attitudes to social and economic questions, but which ought not to determine law. This is not to say that there is not a difference between the industrial and trading activities of government and its other activities. There is, and it is fundamental to this case. The fallacy lies in supposing that this difference can in some way to be made to correspond with a distinction between functions which are properly or essentially governmental and those which are not. For lawyers this error has its origin in a misapplication of the eloquent language of Lord Blackburn in Coomber v. Justices of Berks (1883) 9 App Cas 61 and his opinion in Mersey Docks and Harbour Board Trustees (1865) 11 HLC 443 (11 ER 1405). But that the distinction is unreal was well brought out by Latham C.J. in an important passage in his judgment in the Uniform Tax Case (1942) 65 CLR 373 , at p 423. With it may be put the judgments in New York v. United States (1946) 326 US 572 (90 Law Ed 326). To quote only from Frankfurter J.:

"To rest the federal taxing power on what is 'normally' conducted by private enterprise in contradiction to the 'usual' governmental functions is too shifting a basis for determining constitutional power and too entangled in expediency to serve as a dependable legal criterion. The essential nature of the problem cannot be hidden by an attempt to separate manifestations of indivisible governmental powers" (1946) 326 US, at p 580 (90 Law Ed, at p 333).

The essential problem here is simply whether the engineers in question can be properly said to be engaged in an industrial dispute with their employers. Enquiries as to the essential functions of government are unproductive in the abstract and irrelevant to this issue. Government, directly or by its corporate agencies has in modern times undertaken much that was previously left to be done by private enterprise, or which was not previously done at all; and government has to a greater or lesser degree controlled, in the interest of the public or as a matter of government policy, many forms of private industry. Some old concepts of public law are in difficulties to keep their places in this new world. The question whether or not particular public corporations enjoy the immunities of the Crown illustrates the problem in one field. In another there are the difficulties attending the immunity from suit of foreign public ships, when today so many sovereign states own trading vessels. (at p276)

12. We heard some muffled echoes of old arguments. But we cannot open our ears to them. Doctrines discarded by the decision in the Engineers' Case (1920) 28 CLR 129 cannot be revived to defeat the claim of these latter-day engineers. The effect of the Engineers' Case (1920) 28 CLR 129 in relation to some of these matters has been stated by Dixon J., as he then was, in West v. Commissioner of Taxation (N.S.W.) (1937) 56 CLR 657 , at p 681 and in the Essendon Corporation Case (1947) 74 CLR 1 , at pp 19-22. There is nothing in these cases or in the Victorian Public Servants' Case (1942) 66 CLR 488 which, as I read the judgments, curtails in any way the rule that the power under par. (xxxv.) applies to industrial disputes to which a State is a party. (at p276)

13. Something was sought to be made of the special circumstances of government employment. But this, so far as it is relevant, is a matter for the Commission to consider. I have already said that the log of claims here seems to assume that the Commission could simply enact a scale of salaries applicable for different grades of engineers wherever employed and that this is a misconception. In making an award the Commission might, I would assume, take into consideration that some engineers are members of permanent government services and have rights in respect of seniority, promotion, superannuation and so forth, while others are employed under very different conditions. (at p277)

14. Support for the main argument of the States was said to be found not only in the Teachers' Case (1929) 41 CLR 569 but also in the Victorian Public Servants' Case (1942) 66 CLR 488 . This and Pidoto's Case (1943) 68 CLR 87 , which was also referred to, were wartime cases. They turned on the extent of the defence power. The circumstances which led to the Public Servants' Case (1942) 66 CLR 488 were unusual - one hopes so at all events, for reading of them is not inspiring. The first Tuesday in November (Melbourne Cup day) had ordinarily been a public holiday in Victoria, and so too had the last Thursday in September (Show Day). They were not proclaimed as holidays in 1942, and State public servants were required to work on those and other days which in peacetime would have been holidays for them. The Commonwealth Government, however, sought by regulation to compel the State of Victoria to give them extra pay for working on holidays. It was said - one hopes erroneously - that failure to provide this would have been likely to have led to industrial unrest. The case turned upon the validity of those Regulations and on their interpretation and effect. The expression "industrial dispute" and "industrial matter" occurred in them, with the same meaning as in the Commonwealth Conciliation and Arbitration Act.

The meaning of these expressions when used in relation to government employment is therefore discussed in the judgments.

But the episode leaves an unhappy picture of what was happening in Australia in the middle of the war; and the simple and robust answer to the whole matter was, I venture to think, that given by Starke J. that the Regulations were invalid because: "they have nothing to do with the public safety and defence of the Commonwealth" (1942) 66 CLR, at p 515, and were subversive of the States. I would respectfully adhere to all that Starke J. said in the last two paragraphs of his judgment. In other judgments in the case there is instructive discussion of general principles. But neither that case nor Pidoto's Case (1943) 68 CLR 87 is, in my view, directly helpful for the determination of this case. (at p277)

15. One comes back to the expression "industrial disputes". The words are plain, if imprecise, and from them and the facts of the case I think it plainly follows that the orders nisi for prohibition should be discharged and an appropriate order for mandamus made. (at p277)