Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd

12 CLR 398

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(Decision by: GRIFFITH CJ)

Between: FEDERATED ENGINE-DRIVERS AND FIREMEN'S ASSOCIATION OF AUSTRALASIA
And: BROKEN HILL PTY CO LTD

Court:

Judges:
Griffith CJBarton J
O'Connor J
Isaacs J
Higgins 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

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Decision by:
GRIFFITH CJ

The first question submitted by the special case is whether an association of land engine-drivers and firemen is an association that can be registered under s. 55 of the Commonwealth Conciliation and Arbitration Act. That is a pure question of construction. Our duty is to construe the Act as we find it, and not to substitute what we think would be a more convenient or useful construction.

The facts relevant to this question are thus stated:

"The claimant is an association of employees which is in fact registered as an organization under the Act in or in connection with what is styled the industry of `land engine-driving and firing.' Members of the association are employed for the purposes of engines in many undertakings of various characters, e.g., in mines, in timber yards, in tanneries, in soap and candle works."

Sec. 19 (b) of the Commonwealth Conciliation and Arbitration Act provides that the Court shall have cognizance of, inter alia, "all industrial disputes which are submitted to the Court by an organization, by plaint, in the prescribed manner." The plaint in the present case purports to be submitted to the Court under that provision, and unless the case falls within it the Court has not any jurisdiction to deal with it since it is not within any other provision. The question, therefore, goes to the root of the proceedings.

The term "organization" means an organization registered pursuant to the Act (s. 4). Section 55, which prescribes the conditions of registration, is as follows:

"55.(1) Any of the following associations may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization:

"(a)

Any association of employers in or in connection with any industry, who have in the aggregate, throughout the six months next preceding the application for registration, employed on an average taken per month not less than one hundred employees in that industry; and

"(b)

Any association of not less than one hundred employees in or in connection with any industry."

Sec. 4 defines the term "industry" as follows:

"'Industry' means business, trade, manufacture, undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits."

The words from "excepting only" to the end of the definition have been repealed by s. 2 (d) of the Amending Act of 1910, and the following words substituted "and includes a branch of an industry and a group of industries." The registration of the claimant organization was however made in 1908, and its validity depends upon the law as it then stood; but I do not think that the amendment, even if it applied to the present case, would make any difference in the result.

The question for determination, then, is whether the claimants are an association of "employees in or in connection with any industry" within the meaning of s. 55 (1) (b). The answer to the question depends upon the sense in which the term "any industry" is there used.

It is to be noted that the words are not "persons engaged in any industrial vocation" or "engaged in industry," but "employees in or in connection with any industry."

It is, however, contended for the claimants that the term "any industry," as used in the second member of s. 55 (1), means "industrial vocation," that is to say, that it is sufficient that the associated employees shall be engaged in the same calling or vocation, entirely irrespective of the branches of industry in which their employers are engaged. The respondents for whom Mr. Starke appeared contend, on the other hand, that the term "industry" as used in s. 55 (1) (b) connotes an entirety different from and outside of the mere personal vocation of the employee, and should be construed objectively, as denoting a collective enterprise in which, to use the words of s. 7, employers and employees are associated.

It is conceded that the facts as set out in the special case are stated with a view to raise, and do sufficiently raise, this point.

The claimants do not deny that in s. 55 (1)(a), which speaks of "employers in or in connection with any industry" and, of "employees in that industry," the word "industry" must bear the meaning put upon it by the respondents. The respondents, very naturally, ask, why should the same word, twice used in the same section in the same phrase "in or in connection with any industry," have a different meaning according as the phrase is used to qualify the term "employer" or "employee?"

The claimants' contention is based on the words "calling," "service" and "employment" in the definition of "industry." Each of those words is capable of being used either subjectively or objectively. For instance, the phrase "A. B. is employed in gardening" may mean either that A. B. is employed by another person to do gardening work or that he occupies himself in gardening. That is to say, the words "are employed" in the definition may be used in the passive or in the reflective sense. When a word is capable of two meanings reference must be had to the subject matter and to the context to ascertain the true sense.

The terms to be interpreted are not "calling," "service" and "employment" standing alone, but those terms qualified by the words "in which persons are employed for pay," etc., suggesting something outside of and larger than the employees and in which they may be embraced. When the same words qualify the terms "business," "trade," "manufacture" and "undertaking," the term so qualified obviously means the collective enterprise in which the employees are engaged, and the word "employed" is, equally obviously, used in what in inflected languages is called the passive voice. If ordinary rules of construction are applied, the terms "calling," "service," "employment," and the word "employed" used in connection with them, must receive the same construction. On the contrary view there is a sudden change of meaning of the same word in the same sentence, and the phrase "in which persons are employed," which as to part of the subject means "in which persons are employed by an employer," means as to another part "in which persons engage."

Regarding the matter as one of ordinary grammatical construction these considerations would, in my opinion, be conclusive. But there is much more in the case. The words "employment" and "employed" are frequently used in the Act, and in every instance, leaving out the contested one of s. 55 (1) (b), in the sense which I have indicated as the right one to be adopted in that instance also. I will refer to a few of them. In the definition of the term "industrial dispute" in s. 4 we find "Industrial dispute ... includes (i.) any dispute as to industrial matters arising between an employer or an organization of employers on the one part and an organization of employees on the other, and (ii.) any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State, or any public authority constituted under the Commonwealth or a State." Here the employee is regarded as a person employed by an employer in an industry in which both are engaged.

So, in the definition of the term "industrial matters" that term "includes all matters relating to work, pay, wages, reward, hours, privileges, rights, or duties of employers or employees, or the mode, terms, and conditions of employment or non-employment," where the concept of association with mutual rights and obligations, is involved.

So, in s. 7 we find "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."

Again, in the provisions of s. 38 relating to the (now declared invalid) common rule, where the Court is required to have regard to the extent to which the industries or the persons affected enter or are likely to enter into competition with one another, the term "industry" is clearly used in the sense which I have indicated to denote some relationship in which employers and employees are associated. It is not necessary to pursue the matter further.

The only answer made to this reasoning is the argument ab inconvenient which is, at best, a weak one, and not infrequently involves a petitio principii. It is said that it would be inconvenient not to allow persons engaged in a common industrial vocation, such as carpenters, to form an association or organization. So far as regards associations there is nothing to prevent them from doing so. But so far as regards an organization which is registered for the purposes of litigious proceedings in the Court, very different considerations arise.

In the first place, it might be equally inconvenient that all persons who employ-say-carpenters, should be regarded, contrary to the fact, as carrying on a common enterprise or industry, and so become liable to be involved in one vast litigation. A good illustration is afforded by the present case, in which the award as proposed would extend to employees engaged in industries of all possible kinds, from drivers of locomotives or of winding engines on mines to men in charge of small gas engines used in industries in which the use of engine power is merely subsidiary, and to employers engaged in equally diverse industries.

In the second place, that is not the scheme of the Act. The unit of aggregation for the purpose of industrial agreements and proceedings in the Court is not the handicraft, but the collective enterprise in which employers and employees are associated. Provision is accordingly made for the grouping together of employers engaged in the same industry, as well as of employees similarly engaged. In either case the parties associated presumably have a common interest in the matters in dispute. See, for example, ss. 7 and 55 (1) (a). The distinction between associations of persons who follow the same or similar vocations, on the one hand, and organizations on the other, is emphasized by the definition of the term "association" in s. 4, where a trade union, which is usually composed of such persons, is taken as the typical instance, while the "organization" that may be registered and may become a litigant, must be such an association as is defined by s. 55 (1) (b).

The Act as framed has regard to the interests of all parties concerned, employers as well as employees, and not, as seems sometimes to be taken for granted, to the interests of one party only. The scheme of the Act assumes, on the contrary, that the employers concerned in an industrial dispute extending beyond the limits of one State have a substantial solidarity of interest already existing, antecedent to and independent of the dispute.

I adhere to what I said in Federated Saw Mill etc Employees of Australasia v James Moore & Son Proprietary Limited; Woodworkers' Case, ^[F1] at p. 490 on this point:

"The dispute must be single in the sense that there must be a substantial community of interest amongst the demandants and amongst those who refuse the demand."

It seems to me as impossible to deny that the employers and employees concerned in an industrial dispute must be engaged in the same industry, as to affirm that every person who employs a carpenter or engine-driver is, in any relevant sense, engaged in the industry of carpentry or engine-driving, or to say that there is a community of industrial interest between a farmer who employs an engine-driver to drive a stationary engine in Queensland and a company which employs drivers of locomotive engines in Tasmania.

To these considerations it may be added that the regulation of wages or hours of employment for the whole body of persons engaged in the same vocation, but employed in different industrial enterprises, may be fitly regarded as a proper subject for a law to be made by a Parliament having authority to deal with such matters, or by some delegated legislative authority, such as a Wages Board, rather than as a subject for litigation or arbitration.

I am aware that attempts have been made to turn the Act into a scheme for effecting this purpose. But, as I have said in previous cases, the Arbitration Court has no legislative authority: its functions are to settle actual disputes between actual employers or groups of employers on the one hand and employees on the other, and then only when the dispute extends beyond one State. Nor in my opinion was the Act, any more than the provision in s. 51 (XXXV.) of the Constitution, designed to facilitate the manufacture of disputes for the purpose of bringing them before a federal tribunal. On the contrary, it was designed, however it has been sought to be applied, to promote industrial peace.

For these reasons I am of opinion that the opinion tentatively expressed by my brother Isaacs in the Jumbunna Case, ^[F2] at p. 370 is sound, and that "an industry contemplated by the Act is ... one in which both employers and employees are engaged, and not merely industry in the abstract sense, or, in other words, the labour of the employee given in return for the remuneration received from his employer."

The first question must therefore, in my judgment, be answered in the negative.

The second question is whether the objection is fatal to the claim when the case comes on for hearing. It is contended for the claimants that the Registrar's certificate of registration is conclusive. Section 57 provides that the certificate shall until proof of cancellation be conclusive evidence of the registration of the organization mentioned in it and that it has complied with the prescribed conditions to entitle it to be registered. The prescribed conditions to be complied with by associations are declared by s. 55 (2) to be those set forth in Schedule B, which are all of a directory nature setting forth steps to be taken by an association before registration.

In my judgment an association which is not within the categories defined in s. 55 is incapable of being registered. The conditions are conditions to be complied with by an association which is assumed to be capable of being registered. Its existence as such must precede the compliance. That existence is in one sense, no doubt, a condition precedent to registration, but it is not one of the conditions prescribed in Schedule B and referred to in s. 57. The notion that a certificate by the Registrar, which is a mere ministerial act, should have the effect of validating a thing which the law does not allow to be done is prima facie improbable. The cases of In re National Debenture and Assets Corporation ^[F3] in the Court of Appeal and Corroll v Shillinglaw, ^[F4] at p. 1108 in this Court, emphatically negative it.

The second question must therefore be answered in the affirmative.

This is sufficient to dispose of the case, since no award can be made upon a claim brought forward by the present claimants. But in compliance with the strongly expressed desire of my brother Higgins I will say a few words on the remaining questions. I premise by saying that in my opinion the function of the High Court upon a case stated under s. 31 is judicial and not advisory, and is limited to determining questions of law actually arising in the case and necessary for its decision.

I need not again refer to the opinion of the Judges in M'Naghten's Case ^[F5] which I quoted in the Woodworker's Case, ^[F6] at p. 485. But although anything further that I have to say is extra-judicial there are occasions on which extra-judicial utterances are excusable.

The third question submitted is whether the Board of Water Supply and Sewerage, Sydney, and the Corporation of the Mayor, Aldermen, Councillors and Citizens of the City of Melbourne are subject to the jurisdiction or award of the Arbitration Court. Upon examination of the Statute of New South Wales under which the Sydney Water Supply and Sewerage Board is constituted it appears that the Board is in the strictest sense a Department of the State Government. Its receipts go into, and its disbursements are defrayed from the Consolidated Revenue, and all its actions are subject to the control of the Governor in Council. It was not contended before us that the question could be answered in the affirmative with respect to this Board, or that the case was in this respect distinguishable from the Railway Servants' Case. ^[F7]

With regard to the Melbourne Corporation we were invited to hold that a municipal corporation is an instrumentality of the State Government, and is entitled to the same immunity from interference by the federal power as the Government Departments of the States. I express no opinion upon the grave and difficult question of how far, if at all, the doctrines which have been laid down in the United States of America on this subject should be regarded as implicitly adopted by the Constitution of the Commonwealth. But as at present advised I see no serious reason for doubting that, if a municipal corporation chooses to engage in what has lately been called "municipal trading," and joins the ranks of employers in industries, it is liable to the same federal laws as other employers engaged in the same industries. This limitation is, indeed, I think, generally accepted in the United States (see South Carolina v United States ^[F8] and the decisions of the Supreme Courts of New York and Pennsylvama cited in that case).

The fourth question is whether the Court is bound by any rules of evidence when evidence is tendered to show or to negative jurisdiction. With much respect, this is not in my opinion a question of law arising in the proceeding within the meaning of s. 31. Whether the Court has or has not jurisdiction, i.e., whether an industrial dispute actually exists, and if so whether it extends beyond the limits of any one State, are questions of fact. The jurisdiction of the Court depends upon the existence of the facts. If the existence is challenged by proceedings for prohibition in this Court, or possibly on an attempt to enforce the award, the fact must be determined independently, and the opinion of the President of the Court on the point is not binding. In other words, the existence of the facts is a condition of jurisdiction.

If they exist, it is quite immaterial to inquire by what route the President arrived at a right conclusion. If they do not, it is equally unimportant to inquire how he fell into error. In such a matter this Court is not a Court of Appeal from him.

But the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense. In this respect a grave responsibility rests upon the President, whose jurisdiction is limited both by the Constitution and the Act. This responsibility is not diminished by the possibility that he may be misled by imperfect or erroneous information. The mode of satisfying himself may vary in different cases. In most cases that come before an ordinary Court of law it is not necessary to make any inquiry on the subject, although in some cases it is. In dealing with the question of jurisdiction the President must exercise his discretion as to the evidence which he will receive and upon which he will act, and is no more fettered in that exercise than in receiving evidence upon any other matter in his Court. I do not think that in this respect the amendment of s. 25 makes any difference.

The fifth question is whether the certificate of the Registrar is "to be treated as prima facie evidence of the fact of the existence of a dispute relating to industrial matters, and in connection with the land engine-driving and firing industry, or of any other and what facts?"

Sec. 21 provides that:"A certificate by the Registrar that any dispute relating to industrial matters is an industrial dispute extending beyond the limits of any one State shall be prima facie evidence that the fact is as stated."

The fact to be stated is that a "dispute relating to industrial matters is an industrial dispute extending beyond the limits," etc, not that the dispute is in existence, which is a fact to be ascertained aliundi, and to which the section has no application. But, since the section can only come into play where there is no other evidence of the extension of the dispute, and the certificate would probably not be given unless the fact were notorious, the point is not of any practical importance.

The sixth question is whether the Arbitration Court has power to include in the award certain provisions relating to a Board of Reference set out in the draft award, which are in effect that, if any question should arise between the parties out of the award or respecting any other matter of their industrial relations, it may be referred to a Board of Reference, to be constituted by election in manner approved by the Registrar, and whose decision is to be final.

So far as regards the words "respecting any other matter," etc, it is conceded that the Court has no such power. As to the rest I have some difficulty in knowing whether the words "may be referred" are intended to mean "referred by either party against the wish of the other," or "referred by consent of both parties." In the latter view the effect would be a voluntary reference outside the award altogether, and deriving its efficiency from the ordinary law, and not from the award. In the former view the effect would be to enable the Board to supplement the award by a direction a breach of which might, under ss. 44 and 49, be enforced by fine. I do not think that this would be competent.

The proposed delegation does not purport to be made under the powers conferred by s. 40A of the Act of 1910, so that it is not necessary to express any opinion on that section, which, indeed, could not fitly be expressed except in a concrete case raising the validity of some order or direction purporting to be made in exercise of the powers conferred by it.