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[1911] HCA 31
High Court of Australia
1911-07-01
Street J, Barton J, O'Connor J, Higgins JJ, Isaacs JJ
Original judgment source is linked above.
H.C. or A. substantially the whole of the costs were incurred in estab 911. the validity of the codicil of 14th April 1903, I do no
Wuson that, even in that case, there would be any sufficient o altering the order made by Street J. as to the costs. Fo
JonEs. Ae reasons I think that the appeal should be dismissed.
Barton J. Lagree. It is only a weak form of exp say that I share the doubt that Street J. expressed as to wl the appellant really believed the truth of the case he set uj
Solicitor, for appellant, A. D. Oliver. Solicitor, for respondents, A. C. Ebsworth.
May 29, 30, 31; June 1,2. : Industrial Conciliation and Arbitration - Industry," meaning of - Regist
Sypyey, aon HL organization - Association of employés - Certificate of registration, Bvidence of existence of dispwte - Municipal corporation, exempti
Grigth 0. federal legislation - Municipal trading - Commonwealth Conciliation
O'Connor, tration Act 1904-1910 (Wo. 13 of 1904 and No. 7 of 1910), secs. 4, 21
An "industry " contemplated by the Commonwealth Conciliation and Arbi- H. C. oF A. tration Act 1904-1909 means an enterprise in which both employers and 1911.
employés are associated, and does not include the vocation of persons doing = - - ~ a particular kind of work in connection with several different classes of such Bea enterprises. peas
Held, therefore, by Griffith C.J. and Barton and Isaacs JJ. (O'Connor and ea
A * ae ¥ x FrreMEN'S: Higgins JJ. dissenting), that an association of land engine-drivers and fire- asgocraTI0N
men, whose members were employed indiscriminately in mines, in timber or AUS-
yards, in tanneries, in soap and candle works, &., was not, under sec. 55 (1) ae
(b), entitled to be registered as an organization. BRokEN rH * : " ey . Hitt Pro- A certificate by the Registrar of the registration of an organization given ,prprary Co.
under sec. 57 of the above Act is not conclusive evidence of the validity of | Lrp. such registration. .
A certificate given by the Registrar under sec. 21 of the above Act that a dispute relating to industrial matters is an industrial dispute extending beyond the limite of one State is not evidence of the existence of an industrial dispute within the meaning of the Act.
Per Higgins J. - {t is the duty of the Court, on a case stated under sec. 31, to answer judicially the questions asked in pursuance of that section, and
to leave the consequences of the answers for the President of the Arbitration Court to determine.
Semble, assuming that a municipal corporation is an instrumentality of State government, if the corporation engages ina trading enterprise, ¢.g., thesupply of electricity to those who choose to buy it, it is not in respect of such enter-
prise exempt from federal legislation under the rule laid down in D'Hmden v. Pedder, 1 C.L.R., 91.
CasE stated by the President of the Commonwealth Court of Conciliation and Arbitration for the opinion of the High Court.
The following, so far as material, is the case stated : -
"1. The claimant is an association of employés 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,"
"2. Members of the association are employed for the purposes of engines in many undertakings of various characters, eg., in mines, in timber yards, in tanneries, in soap and candle works.
"3. Objection has been taken at the hearing by certain respondents that such an association is incapable of registration under the Act.
"4, No application has been made to the Registrar to cancel, or to apply for the cancellation of the association.
H.C.or A. "5, Objection has also been taken that certain of the respo 1911. ents are not subject to the power of the Court, on the groun
Feprarep that they are State agencies or instrumentalities. For instane
ENGINE: The Board of Water Supply and Sewerage, Sydney. DRIVERS 4 - : AND The Mayor, Aldermen, Councillors and citizens of the City FIREMEN'S ASSOCIATION of Melbourne. or Aus' "6, These respondents are constituted under State Acts, v. the parties are at liberty to refer to all relevant Acts in argum Hae bes "7, Objection has also been taken by certain of the respondent
rntezar¥ Co. that, notwithstanding sec. 25 of the Act as amended, this Court
«5. Is the certificate of the Registrar to be treated as primé facie evidence of the fact of the existence of a dispute relating to industrial matters, and in con- nection with the land engine-driving and firing industry, or of any other and what facts 7
"6. Has this Court power to include in the award the provisions for a Board of Reference as appearing in the proposed award, or otherwise; and how otherwise ? i
The only part of the award above mentioned which is material to this report is the following : -
«4, Board of Reference. "Should any question or dispute arise between the parties out of this award, or respecting any other matter of their industrial relations, it may be referred toa Board of Reference. The Board of Reference includes either a Commonwealth Board or a Board for the State of employment. " In either case the Board shall consist of an equal number of employers (or their representatives) and of employés (or their representatives), chosen in the manner approved (whether after ~ or before the choice) by the Registrar or the Deputy Registrar.
«The certificate of the Registrar that the Board is properly constituted shall be conclusive for the purposes of this award.
"If the members present at the meeting of the Board are equally divided on any question, the decision of the Registrar or Deputy Registrar may be taken, and his decision shall be taken to be the decision of the Board.
"The decision of the Board shall be final and conclusive as between the parties to the reference."
AND FrreMeEn's ASSOCIATION or Avs- TRALASTA v. Broken Hix Pro- PRIETARY Co. Lap.
Starke, for twenty-two of the respondents. As to the question, the association is not validly constituted under the Ac In order to constitute an industrial dispute the dispute must be dispute in an industry, and an industry is something which di with the production or distribution of commodities. There must - be some claim put by one party to another. There must be some neawus between the members of the class putting forward the claim, That nexus is to be found either in the industry in which they - are employed or in some historical association in industries whi have been worked together. Sec. 55 (1) (6) and Schedule B- require an industry as the foundation of an organization, and Schedule B indicates that there must be an industry carried on by some employer. There must be some association together of the persons in a proposed organization before an organization cz exist. [He referred to Jumbunna Coal Mine, No Liability Victorian Coal Miners' Association (1).] If callings in the abstract are to be the basis of an organization, its members must be of one calling only, and this organization consists of persons belonging to different callings, eg., engine-drivers, fireme greasers, &c. The definition of industry in sec. 4 does not ust "calling" in that sense. The word there may refer to the callin of the employer, ¢g.,an engineer. In sec. 2 (d) of the Act
tries" show that there must be something which is called industry. If persons may combine according to the services the; perform, there might be an organization of manual labourers.
As to the second question, the certificate of the Registrar under sec. 57 is only conclusive as to the fact of registration, not that the organization is an organization. [He referred to the Jwmbu Coal Case (2).] Sec. 60 does not affect the right of a party to ta the objection that the organization is not a lawful organizal [He referred to Carroll v. Shillinglaw (3); In re Nation Debenture and Assets Corporation (4) as to the effect of certificate of registration.]
(1) 6_C.L.R., 309, at p. 370, per (3) 3 C.L.R., 1099, at p. 1108. Isaacs J. (4) (189) Gh. 505, at p. 527. (2) 6 C.L.R., 309, at p. 312. (5) 29 V.L.R., 380; 95 ALL.
If the existence of the organization is a condition precedent to jurisdiction no certificate can validate the organization.
The fourth question turns upon sec. 25 of the Act of 1904 as amended by sec. 6 of the Act of 1910. The final determination
whether there is a dispute must proceed upon legal evidence. Sec, 25 never comes into operation until the Court is properly seized of the case. The President may, for his own satisfaction, inquire whether there is a dispute, and may do so on what evi- dence he chooses, or he may leave the question alone. But when his award is attacked on the ground of want of jurisdiction this Court will determine the fact of the existence of a dispute upon legal evidence.
The fifth question is founded upon sec. 21 of the Act of 1904. That section is invalid under the Constitution. The Parliament cannot make the certificate of the Registrar proof of a fact upon which to found the jurisdiction of the Court. The certificate is only made evidence that something which is said to be a dispute extends beyond one State, not that something which is called a dispute is a dispute.
As to the sixth question, the Board is not one within sec. 40a (see. 10 of the Act of 1910), and if it be compulsory on the appli- cation of one party, is unauthorized. If it is optional it is unauthorized, but can do the respondents no harm.
[Grirritx C.J - If it is optional and a determination is given by the Board, how is it to be enforced? Is a breach of it subject to a penalty under sec. 44 ?]
As to the third question, under the Constitution the Common- wealth cannot impede or interfere with State functions. Municipal government is a State function. Any function which is conferred upon such a body as a municipality to carry on for the benefit of the community, as opposed to private benefit, is a State function.
If the Government, by its agency, takes control of such a matter
as electric supply and uses it for the public benefit, it isa Govern- ment function. The only test of what is a Government function is, has the Government taken upon itself to do the thing for the benefit of the community? Until South Carolina v. United States
AND FIREMEN'S AssOciaTION or Aus- TRALASIA v Broken Hitt Pro- PRIETARY Co. Lap.
H.C. or A. (1) the Supreme Court of the United States had always d a des power of the Federal Government to tax the funds of gas cipalities howsoever arising. The test put is, has the partic aes function been conferred upon the municipality by the State ? AND referred to the Electric Light and Power Act 1896, secs. 10, | Roun 16,17; and the Melbourne Corporation Acts (6 Vict. No.7, or Avs: All the moneys from electric lighting are paid into the g w. municipal fund, and the Commonwealth cannot tax that fui
eae Municipalities have been held to be State instrumentalities sin epee OP: Merryweather v. Garrett (2). United States v. Railroad Co, is most strongly in favor of this view, and until the South Oar lina Case (1) that view was maintained. Even if the power giv is to carry on trade for the benefit of the public it still government function, and whether it is compulsorily exerci is merely permissive. If a power is conferred upon a creature the State which has no existence except as a creature of the St the exercise of that power is by the State by means of its ai liary. [He referred to South Carolina v. United States (4).] [Isaacs J. referred to Broughton v. Pensacola (5); Mou Pleasant v. Beckwith (6); Mobile v. Watson (7); Western Sav: Fund Society v. City of Philadelphia (8); Bailey v. Mayor New York (9); and Pioneer Co. v. Bourd of Education (10), showing that in the United States a distinction is drawn betwee those functions of municipalties which are regarded as S functions and those which are not, the distinction being based the English eases of Moodalay v. Morton (11) and R. v. McQ (12) The English cases are not relevant to the present. They only with the question whether the occupation of buildings | occupation by a public official. The American decisions referr to deal with the question whether municipalities are liable f negligence in carrying out their duties, and it has been deci that in respect of property they hold, or contracts they enter int
(1) 199 U.S (7) 116 U.S., 289, at p. 304. (2) 102 U. (8) 31 Penn. St. R., 185. (3) 17 Wall (9) 3 Hill, 531.
(4) 199 U.S., 437, at pp. 454, 458, 459, (10) 136 Am, St. Re - 1021. 464, 469. (11) 1 Bro. 0.C., 469,
(5) 93 US., 266, at p. 269, 12) LR. 3Q.B. (6) 100 U.S, 51%, at'p. 533. i) bameoris
their liabilities are the same as those of private individuals. Here there is no doubt as to the liability of municipalities for negli- gence and as to their obligation to carry out contracts. Those -cases have no bearing on the power of the Federal Government to interfere with municipalities. If this principle is not to be fol- lowed then the supply of electricity is as much a public purpose as railways or gas or water supply. No distinction can be made between electricity applied to public lighting and that sold to private persons. Whatever the principle to be applied is, this award will operate directly upon the general municipal fund, no matter how they were derived. ~ [Grirrirx C.J. - Would not the express power as to conciliation and arbitration get rid of the implied power of non-interference ?] No. The power of conciliation and arbitration is in the same position as that of taxation. The taxation power is general, but this Court has applied to it the doctrine of non-interference with State agencies. As to the Sydney Board of Water Supply and Sewerage, he referred to 43 Vict. No. 32, secs. 8, 32, 34; 51 Vict. No. 28 ; 53 Vict. No. 16.
Hall, for the claimant. As to the first question, the word industry may be looked at from the employés' view as well as from the employers. In the former case a man's calling in the ordinary sense is his industry. His industry is determined, then, by the class of work he does - eg., engine-driving, carpentering. His employer may then be said to be connected with that industry, and a number of employers connected with that industry could form an organization. The Court should decide this question having regard to sec. 55 of the Act of 1910, although this organization registered before that Act. A man's calling does not alter so long as he does the same class of work.
As to to the second question, the Arbitration Court can deal with a matter in which the organization concerned has not been properly registered if it can then be properly registered. When a means is provided for getting rid of a registration, and that means is not availed of, the party who might have availed him- self of it is estopped from denying the validity of the registration when the case comeson. The President, under sec. 57, is entitled
AND FIREMEN'S ASSOCIATION or Aus- TRALASIA w Broken Hix Pro- PRIETARY Co. Lr.
AND FIREMEN'S ASSOCIATION or Aus- TRALASIA v BRoKEN Hitt Pro- PRIETARY Co. Lrp.
to treat the certificate of the Registrar as conclusive evidence the registration, and that the association was registrable. ED if the registration can be attacked it is only by prohibition.
(Hiccrns J. - See. 60 (1) (2) shows that cancellation of re; tration may be applied for upon a ground which goes to the root of the jurisdiction. :
Isaacs J. - referred to the Companies Act 1908 (Eng.) sec. 7 as to the effect of a certificate.] =
As to the fourth question, the inquiry as to whether there is" jurisdiction is a "proceeding under the Act" within sec. 25 : amended by sec. 6 of the Act of 1910. [He referred to Federated Amalgamated Government Railway and Tramway Ser Association v. New South Wales Railway Traffic Employés Association (1).]
As to the fifth question, the certificate presupposes a disput The Registrar would not be justified in giving his certificate" unless he found there was a dispute.
As to the sixth question, the only provision for a Board o Reference is in sec. 404. This Board is not within that secti but may be brought within it by providing for the Presid appointing a Board consisting of persons selected by employers - and employés. Sec. 40 is valid. So long as the Parliament maintains the arbitral form of dealing with industrial dispute they may choose whatever means they like to carry out their power. "
As to the third question, counsel did not argue as to Board o} Water Supply and Sewerage, Sydney. As to the City of Mel- bourne, in Murray v. Wilson Distilling Oo. (2); South Carolina v. United States (3) is referred to without casting any doubt - upon it.
[Grirrira C.J. - It has been taken for granted so far tha municipal bodies in Australia are entitled to all the rights and exemptions to which they have been held to be entitled in the United States. That is a very large assumption.]
The distinction laid down in South Carolina v. United St (8) between functions carried on by municipalities for public pur-
(1) 4 C.L.R., 488, at p. 496. (2) 213 U.S., 151, at p. 173. (3) 199 U.S., 437.
poses and those for other purposes is a valid one. The Court will not apply the doctrine of State instrumentalities to muni- cipalities unless it is clear that the State has cast upon the municipalities the duty of doing the particular work in question.
GrirritH C.J. The first question submitted by the special ease is whether an association of land engine-drivers and firemen is an association that can be registered under sec. 55 of the Com- monwealth 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 employés 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 pur- poses of engines in many undertakings of various characters, e.g., in mines, in timber yards, in tanneries, in soap and candle works."
See. 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 (sec. 4). Sec. 55, which prescribes the con- ditions of registration, is as follows : -
"55. (1) Any of the following associations may, on compliance with the prescribed conditions, be registered in the manner pre- scribed as an organization : -
AND FIREMEN'S: ASSOCIATION or Avs- TRALASIA v. BRokEN Hitt Pro- PRIETARY CO Lop.
FEDERATED ENGINE Drivers AND FrrEMEN's ASSOCIATION or Aus- TRALASIA a Broken Hi Pro- PRIETARY Co. Lr.
"(a) Any association of employers in or in connectio: any industry, who have in the aggregate, through the six months next preceding the application registration, employed on an average taken per mo not less than one hundred employés in that industry and
«(b) Any association of not less than one hundred emplo in or in connection with any industry."
"«Tndustry ' means business, trade, manufacture, uo taking, calling, service, or employment, on lan water, in which persons are employed for pay, h advantage, or reward, excepting only persons en; in domestic service, and persons engaged in cultural, viticultural, horticultural, or dairying suits." i
The words from " excepting only " to the end of the definit have been repealed by sec. 2 (d) of the Amending Act of 1910, the following words substituted "and includes a branch of an ir try and a group of industries." The registration of the organization was however made in 1908, and its validity d upon the law as it then stood; but I do not think that amendment, even if it applied to the present case, would any difference in the result.
The question for determination, then, is whether the clai are an association of "employés in or in connection with industry" within the meaning of sec. 55 (1) (b). The answ to the question depends upon the sense in which the term industry " is there used.
It is to be noted that the words are not "persons engaged i any industrial vocation" or "engaged in industry," but "e ployés in or in connection with any industry."
It is, however, contended for the claimants that the term "am industry," as used in the second member of sec. 55 (1), mea "industrial vocation," that is to say, that it is sufficient that # associated employés shall be engaged in the same calling vocation, entirely irrespective of the branches of industry which their employers are engaged. The respondents for whi
Mr. Starke appeared contend, on the other hand, that the term H. ©. or A. "industry " as used in sec. 55 (1) (b) connotes an entirety different ck from and outside of the mere personal vocation of the employé, Frpsrarsp and should be construed objectively, as denoting a collective ENGINE:
Drivers enterprise in which, to use the words of sec. 7, employers and _ anv
' fs FIREMEN'S employés are associated. ASSOCIATION It is conceded that the facts as set out in the special case are PER
stated with a view to raise, and do sufficiently raise, this point. v.
The claimants do not deny that in sec. 55 (1)(a), which speaks Hirx Pro- of "employers in or in connection with any industry" and, of P™®TARYCo- "employés 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 " employé ?"
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
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," ete., suggesting something outside of and larger than the employés 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 employés 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 VoL. XII. 29
same construction. On the contrary view there is a sud change of meaning of the same word in the same sentence, an the phrase "in which persons are employed," which as to part o the subject means "in which persons are employed by employer," means as to another part "in which persons engage.
Regarding the matter as one of ordinary grammatical constr tion these considerations would, in my opinion, be conclusi 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 sec. 55 (1) (0), in sense which I have indicated as the right one to be adopted that instance also. I willrefer toa few of them. In the definition of the term "industrial dispute" in sec. 4 we find "Industr dispute . . . includes (i.) any dispute as to industrial mat- ters arising between an employer or an organization of employers on the one part and an organization of employés on the other, and (ii.) any dispute in relation to employment in an indus carried on by or under the control of the Commonwealth ¢ State, or any public authority constituted under the Common- wealth or a State." Here the employé is regarded as a person employed by an employer in an industry in which both x engaged.
So, in the definition of the term "industrial matters" that
terms, and conditions of employment or non-employment," the concept of association with mutual rights and obligat involved.
So, in sec. 7 we find " Where persons, with a view to bei associated as employers and employés respectively in any ind try . . . have entered into an industrial agreement with resp to employment in that industry."
Again, in the provisions of sec. 38 relating to the (now deel invalid) common rule, where the Court is required to have regé to the extent to which the industries or the persons affected ent or are likely to enter into competition with one another, the te "industry " is clearly used in the sense which I have indicat
denote some relationship in which employers and employés are H.C. of A.
associated. It is not necessary to pursue the matter further. Bets
The only answer made to this reasoning is the argument ab Feperarep
inconvenienti which is, at best, a weak one, and not infrequently paler iny iti incipii. is said that it would be incon- AND involves a petitio principti. It is said tl peas
venient not to allow persons engaged in a common industrial Assocramion
. th ie!) oR ATE vocation, such as carpenters, to form an association or orgamiza- Jost asta tion. So far as regards associations there is nothing to prevent v.
yj: BROKEN them from doing so. But so far as regards an organization Hux Pro-
which is registered for the purposes of litigious proceedings in sen co the Court, very different considerations arise. eG:
In the first place, it might be equally inconvenient that all persons who employ - say - carpenters, should be regarded, con- trary 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 employés 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 sub- sidiary, 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 employés are associated. Pro- vision is accordingly made for the grouping together of employers engaged in the same industry, as well as of employés similarly engaged. In either case the parties associated presumably have a common interest in the matters in dispute. See, for example, secs. 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 defini- tion of the term "association" in sec. 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 sec. 55 (1) (6).
The Act as framed has 'regard to the interests of all parties
H.C. or A. concerned, employers as well as employés, and not, as s 1911. sometimes to be taken for granted, to the interests of one |
ae only, The scheme of the Act assumes, on the contrary, that
ual employers concerned in an industrial dispute extending beyo AND the limits of one State have a substantial solidarity of inter
pee already existing, antecedent to and independent of the dispute.
Ste I adhere to what I said in Federated Saw Mill &e. Emple
v. of Australasia v. James Moore & Son Proprietary Lim aoe ie Woodworkers' Cause (1) on this point : - EEERELOO: " The dispute must be single in the sense that there must
substantial community of interest amongst the demandants amongst those who refuse the demand."
It seems to me as impossible to deny that the employers employés concerned in an industrial dispute must be engage the same industry, as to affirm that every person who employs carpenter or engine-driver is, in any relevant sense, engaged the industry of carpentry or engine-driving, or to say that tl is a community of industrial interest between a farmer whi employs an engine-driver to drive a stationary engine in Queen: Jand and a company which employs drivers of locomotive engi
in Tasmania. To these considerations it may be added that the regulat of wages or hours of employment for the whole body of pei engaged in the same vocation, but employed in different indus enterprises, may be fitly regarded as a proper subject: for to be made by a Parliament having authority to deal wit matters, or by some delegated legislative authority, such Wages Board, rather than as a subject for litigation or arbit {am aware that attempts have been made to turn the Acti
a scheme for effecting this purpose. But, as I have id previous cases, the Arbitration Court has no legislative autho its functions are to settle actual disputes between actual employ or groups of employers on the one hand and employés on tl other, and then only when the dispute extends beyond one St Nor in my opinion was the Act, any more than the provisior sec, 51 (xxxy.) of the Constitution, designed to facilitate manufacture of disputes for the purpose of bringing the (1) 8 C.L.R., 465, at p. 490.
before a federal tribunal. On the contrary, it was designed, H- ©. oF A.
however it has been sought to be applied, to promote industrial He [SBE LS. FEDERATED For these reasons I am of opinion that the opinion tentatively olin
expressed by my brother Isaacs in the Jumbunna Case (1) is | axp | i . FIREMEN's sound, and that "an industry contemplated by the Act is Assocrazion
one in which both employers and employés are engaged, 0% aves
= TRALASIA and not merely industry in the abstract sense, or, in other words, ae . the labour of the employé given in return for the remuneration Hx Pro-
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. See. 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 sec. 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 cate- gories defined in sec. 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 sec. 57. The notion that a certificate by the Registrar, which is a mere ministerial act, should have the effect of validat- ing a thing which the law does not allow to be done is primdé facie improbable. 'The cases of In ve National Debentwre and Assets Corporation (2) in the Court of Appeal and Carroll v. Shillinglaw (8) in this Court, emphatically negative it.
(1) 6 C.L.R., 309, at p. 370. (2) (1891) 2 Ch., 505. (3) 3 C.L.R., 1099, at p. 1108.
H.C.orA. The second question must therefore be answered in the affirm 1911. tive. Feveraten This is sufficient to dispose of the case, since no award can
Exe made upon a claim brought forward by the present claim:
axp But in compliance with the strongly expressed desire of
AeEMEN'S brother Higgins I will say a few words on the remaining q
Ey Bee tions. I premise by saying that in my opinion the function v the High Court upon a case stated under sec, 31 is judicial ee not advisory, and is limited to determining questions of SREEEABECO. actually arising in the case and necessary for its decision.
1 need not again refer to the opinion of the Judges M'Naghten's Case (1) which I quoted in the Woodworker's Oa (2). But although anything further that I have to say is exi judicial there are occasions on which extra-judicial utterar are excusable. i i
The third question submitted is whether the Board of Wate Supply and Sewerage, Sydney, and the Corporation of the Mayoi Aldermen, Councillors and Citizens of the City of Melbourne 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 con- stituted it appears that the Board is in the strictest se Department of the State Government. Its receipts go into, its disbursements are defrayed from the Consolidated Revenu and all its actions are subject to the control of the Goyerno Council. It was not contended before us that the question cot be answered in the affirmative with respect to this Board, or the case was in this respect distinguishable from the Rail Servants' Case (8).
With regard to the Melbourne Corporation we were invi hold that a municipal corporation is an instrumentality of State Government, and is entitled to the same immunity - interference by the federal power as the Government Dep ments of the States. I express no opinion upon the grave difficult question of how far, if at all, the doctrines which been laid down in the United States of America on this subje
(1) 10 CL. & F,, 200. 2) 8 C.L.R., 465, at p. 485. (3) 4 C.L.R., 488,
should be regarded as implicitly adopted by the Constitution of H.C. or A. the Commonwealth. But as at present advised I see no serious nee reason for doubting that, if a municipal corporation chooses tO ppprrareD engage in what has lately been called " municipal trading," and pas joins the ranks of employers in industries, it is liable to the same ee federal laws as other employers engaged in the same industries. assocrat10N
This limitation is, indeed, I think, generally accepted in the °F ee
TRALASTA United States (see South Carolina v. United States (1) and the eae decisions of the Supreme Courts of New York and Pennsylvania rz, Pro- cited in that case). erat. The fourth question is whether the Court is bound by any irae
rules of evidence when evidence is tendered to show or to nega- tive jurisdiction. With much respect, this is not in my opinion a question of law arising in the proceeding within the meaning of sec. 31. Whether the Court has or has not jurisdiction, ie., whether un 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 aright 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 responsi- bility 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
H.C. or A on the subject, although in some cases itis. In dealing with 1911. question of jurisdiction the President must exercise his dis eee as to the evidence which he will receive and upon which he ENCE act, and is no more fettered in that exercise than in recei
anp evidence upon any other matter in his Court. I do not thit
Pee that in this respect the amendment of sec. 25 makes any di
w. The fifth question is whether the certificate of the Registrar | ee "Pro. 'to be treated as primd facie evidence of the fact of the exi st of a dispute relating to industrial matters, and in connection w the land engine-driving and firing industry, or of any other an
Sec. 21 provides that : - "A certificate by the Registrar any dispute relating to industrial matters is an industrial disput extending beyond the limits of any one State shall be prima evidence thai the fact is as stated."
The fact to be stated is that a "dispute relating to indus matters is an industrial dispute extending beyond the limits, not that the dispute is in existence, which is a fact to b tained aliundi, and to which the section has no application. _ since the section can only come into play where there is no ot evidence of the extension of the dispute, and the certificate w
not of any practical importance. The sixth question is whether the Arbitration Court has pov
election in manner approved by the Registrar, and whose de is to be final.
So far as regards the words " respecting any other mati &c., it is conceded that the Court has no such power. . As to rest I have some difficulty in knowing whether the words "n be referred" are intended to mean "referred by either pa against the wish of the other," or "referred by consent of b parties." In the latter view the effect would be a volunt
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 secs. 44and
; A9, 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 sec. 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.
Barron J. Before beginning to discuss question 1 it is well to advert to one of the general rules for the construction of Acts of Parliament, that "the same words must be primd facie construed in the same sense in the different parts of the Statute" (per Chitty J. in Spencer vy. Metropolitan Board of Works (1). In R. v. Poor Law Commissioners ; In re Holborn Union (2), Lord Denman ©.J. said for the Court, "We disclaim altogether the assumption of any right to assign different meanings to the same words in an Act of Parliament on the ground of a supposed general intention in the Act."
OF course, the inference from an identity of terms can be re- butted by a context showing that in the instance in question the word or phrase is used in a sense different from that which it conveys elsewhere in the Statute. The Principal Act requires in sec. 4 that the meanings there given to a number of expressions 'shall be attached to them wherever they occur in its provisions, "except where otherwise clearly intended." But it is of course necessary in this as in other cases to interpret the interpretations themselves where argument is raised as to the meaning of any of them; and this task has been undertaken by both parties to the special case.
An "association" is defined as "any trade or other union, or branch of any union, or any association or body composed of or representative of employers or employés, or for furthering or
(1) 22 Ch, D., 142, at p. 149, (2) 6A. &E., 56, at p. 68.
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protecting the interests of employers or employés." The disti tion between trade or other unions, and associations or bodi representing the interests of employers or employés, is noticeal It must have been present to the mind of Parliament, as a mati of common knowledge, that a trade union did then, as it d now, often consist of a number of persons grouped together in respect of their pursuit of some one vocation, such as that of carpenters, that of engine-drivers, that of shop assistants or that of carters, while, on the other hand, the employés in a particul concern often did, as they do now, band themselves together, a union or otherwise, in respect of that concern as an entire a1 collective undertaking, such as a dockyard, a foundry, a flou mill, a boot-factory or a colliery. But, as will be seen, it is not every "association " that is entitled to become an " organization" by registering under the Act, any more than every body of mi forming a trade union has such a right. "Employer" is ne defined as "any employer in any industry," and "employé" "any employé in any industry"; and as under sec. 55 (of whi more presently) it is among the requisites to lawful registrati as an "organization" that the body seeking to be registered should be an " association of employers in or in connection with any industry," or "an association of . . . employés . . . or in connection with an industry," it is convenient to consid now what appears to be meant by an industry in the definitio of "employer" and "employé." Applying the rule of construction already mentioned, we have the term "industry" primd facie meaning the same thing in both of them. If it does, it is in both to denote the enterprise in which the employer invol the services of the employé, and which is carried on by their operation. An industry, therefore, is looked on as an enti existing only by the relation of employer and employé. I other meaning of an industry can be found which will fit the employé it certainly will not fit the employer. To adopt an other meaning, therefore, would result in applying the word each in a different sense, which in the absence of a compel context is against the rule of construction. *
Well, is "industry " used elsewhere in any different sense ? the same sec. 4, "' Industry' means business, trade, manufact
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." It is only because of the employment for pay, &e., that either the employer or the employé is in an industry at all. That was plain enough before, but it is the essence of this defini- tion. A reciprocal relation is postulated which shows that the "industry" in which it exists is some enterprise carried on as a conerete whole by an employer with the aid of his employés. The words "calling, service, or employment" are used in the same sense as "business, trade, manufacture, undertaking," to denote the sphere occupied by the exertions of the employer and those whom he employs. They depend for their full meaning, as the earlier words do, on the condition that in them "persons are employed for pay" or other recompense. The thing meant is the whole enterprise; the "service" in which "persons are employed for pay ;" and it is that enterprise which an industry is defined to mean. I do not see how it can be urged with reason that in this definition a "business" in which a man is employed for pay, and a "calling" in which he is so employed, are not equally industries in the sense of industrial concerns, or that they are mere vocations of workmen; or that " pay," "hire," "advan- tage" and " reward" are not equally used to denote the compen- sation which the employed has from the employer.
The exception of "persons engaged in domestic service " was much relied on in support of a different construction. But it will be seen that the conception of an industry which is evinced in the definition down to this exception is maintained in the rest of the Act, and to adopt the claimants' interpretation of the defini- tion would lead to the dilemma that we must either do violence to these other provisions, or, adopting their interpretation, admit that it is in the very definition of an industry that the term is used in a sense to be disregarded in every other part of the Statute in which it is found. I think then that the exception as to domestic service must be looked on as introduced for more abundant caution, possibly to prevent the supposition that one class of persons engaged in paid work was included in a definition
AND FireMEN'S ASSOCIATION or AUs- TRALASIA v BROKEN Hitt Pro- PRIETARY Co. Lrp.
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intended to denote whole enterprises in their collective sense, cannot regard the words as altering or modifying the meaning s plainly conveyed by the prior part of the section. It is a co mon experience to find in Acts of Parliament provisions added, way of exception, to sections in the subject matter of which tl are not inherent, their proper place being in the category of s stantive provisions. In this case, for instance, the object desi could better have been attained by a short clause to the eff that nothing in the Act should apply to the persons compris 1 these two exceptions. It is plain that it was intended to ex them altogether from the operation of the Statute. In 191 exceptions were omitted, and after the word "reward" th words were added : " And includes a branch of an industry an group of industries." As the claimant association was register in 1908 this alteration does not affect the present question. definition must be read as it stood in 1908.
The meaning of an industry is further indicated by a phrase the definition of "industrial dispute," and as it is referred to my learned brother Zsaaes in his judgment in the Jumbunna Cu: in a passage highly applicable to the definition section (1) quote his words : -
"An industry contemplated by the Act is apparently on: which both employers and employés are engaged, and not merel: industry in the abstract sense, or in other words, the labour ¢ the employé given in return for the remuneration received fro his employer. As suggessted, not only by the words defi 'industry ' itself, but also by Schedule B, and by such a phi in the definition of 'industrial dispute' as 'employment in indi tries carried on by or under the control of the Commonweal &ec., an 'industry' as intended by Parliament seems to be business, &c., in which the employer on his own behalf is en, as well as the employés in his employment. Turning to th specific definition of 'industry, it rather appears to mean business (as merchant), a trade (as cutler), a manufacturer (as | flour miller), undertaking (as a gas company), a calling (as engineer), or service (as a carrier), or an employment (a gene! term like 'calling' - embracing some of the others, and intende
to extend to vocations which might not be comprised in any of the rest), all of these expressions so far indicating the occupation in which the principal, as I may call him, is engaged whether on land or water. If the occupation so described is one in which persons are employed for pay, hire, advantage, or reward, that is, as employés, then, with the exceptions stated, it is an industry within the meaning of the Act."
This view of the meaning of an industry as defined is fully
af supported by subsequent provisions, Sec. 7 deals with the s refusal or neglect "to offer or accept employment" in cases "where = persons, with a view to being associated as employers and = employés respectively in any industry, or representatives of such
persons, have entered into an industrial agreement with respect é to employment in that industry." The word "industry" as used here brings us back to the definition, and elucidates the use of the word in what I have termed its collective sense, as some enterprise or concern in which an employer and a body of employés are mutually engaged, or a number of enterprises of the same kind. Further support appears on consideration of sub-secs. (f) and (g) of sec. 38. For though these provisions have been held invalid, they may be looked at as examples of the sense in which the Statute uses the terms "industry" and " industries." I refer particularly to the power to direct within what area or under what conditions a common rule is to bind " the persons engaged in the industry whether as employers or employés." It seems to me plain beyond any reasonable doubt that the industry of the employé must be that of the employer also, for they are both to be "engaged" in it, whether at the moment they are actively prosecuting it or not. The conclusion is confirmed by study of the authority given by sec. 41 to enter for purposes of inspection " any building, mine, mine-working, ship, vessel, place, or premises of any kind wherein or in respect of which any industry is carried on,' &e. Carried on by whom? Obviously by the employer as well as the employés. Carried on where ? Obviously in the place or premises in which the one employs the others: and so once more we come back to the definition clause only to find the sense of this section and that of the definitions identified. Such expressions as those quoted from secs. 7, 38 and
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41 could scarcely be used in relation to a number of sections persons performing work of only one subdivision or class in s or hundreds of concerns not merely widely separated, but widely differing in nature as well as in name, carried on by man employers between whose businesses no identity, nor any re: blance, nor indeed the slenderest tie of common interest ex How can a number of employers thus diverse and unlike in aims combine to any purpose for mutual protection in the absenc of the common interest which is the very motive of defence How can conciliation or arbitration operate in the full meas contemplated by the Act under such conditions ?
Let us look at the use of the term in the provision made registration by sec. 55. On compliance with the prescribed e ditions an association may be registered as an organization, if be "an association of employers in or in connection with any industry," or "an association of . . . employés in or in nection with any industry." (I leave out all words not mate: to the meaning of an " industry ").
Whichever of the two meanings contended for be given to term, it is clear that the "industry " affords in the contemplation -
of interest which associates the employés on the one hand the employers on the other. It is with reference to the cond tions of that "industry" that either association, if register
the "industry" means the mere calling or vocation of a pe that term does not apply to both parties. If it fits the empl it does not fit the employer. That will appear plainly enough one attempts to apply it to both in the sense the claimant wot give it. But to have a rational meaning in this connection must be applicable to both. Besides, no context is suggested requiring a change from the meaning clearly conveyed in first branch (a) of the section.
"Industry" therefore, as defined in the 4th section, and used elsewhere in the Act, means a concern or concerns carri on by employers, in which the employés work with the employer for wages or other recompense. It does not mean the m vocations of sections of workmen not bound together in resp
of their connection with an enterprise or enterprises of the same kind, but carrying on, in widely diverse undertakings - for example, "in mines, in timberyards, in factories, in soap and candle works" - one out of the many classes or divisions of work which are necessary for completely constituting and conducting such undertakings. Such sections of workmen may form associa- tions for their mutual support and protection, and nothing that has been said in this case casts a doubt on the legality of such bodies, but they are not associations of employés "in or in con- nection with any industry" as the term "industry " is used in the Act. A great part of the intention of the Act is that one party may be able to treat with the other - employers with employed - in respect of the conditions of employment in the concerns which are known as industries (I use the word "condi- tions" in the large sense in which the Act refers to " industrial matters"), or to make agreements with the other party on dis- puted questions touching such conditions, or failing agreement, to bring the other party before the Court by plaint for its award on the points in dispute affecting the concern or concerns and the interests of either party therein. To facilitate the attain- ment of these ends, associations, whether of employers or of employés, are permitted on certain conditions to register as organizations in connection with the particular concern or con- cerns, that is, the industries in which they employ or are employed. But, as has been shown, whatever other conditions may be fulfilled, registration cannot be legally granted to an association unless it exists in or in connection with an industry in the meaning given by the Act to that term. The claimant association here is not composed of employés in connection with any industry within the meaning of the Act. Engine-driving and firing are vocations largely used in a vast number of industries. But for the purposes of this Act, vocations though they are, they do not constitute an industry. The claimant association therefore was not entitled to registration, and I answer question 1 in the negative.
In dealing with question 2 regard must be had to sec. 19. The Court is to have cognizance of three kinds of industrial dis- putes. As there has not been either a certificate under sub-
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sec. (w) or a request under sub-sec. (c), and the alleged d has been submitted by plaint, it comes under sub-sec. (b). in order to make a valid submission by plaint the claimant be an organization, sub-sec. (b). I take it that must m legally constituted organization, for organizations as parties industrial disputes have no existence save under the provi: of this Act. By sec. 4 an "'organization' means any organization registered pursuant to this Act, and so far as applicable it includes any proclaimed organization to which the Govern General declares this Act to apply." The claimant association is not a proclaimed organization. It claims a right to sue by v of its registration. But if I have answered question 1 right it is not a legally registrable body. Its claim to become a by submitting a plaint is based on a registration which given to it without statutory warrant. As it can only exist claimant by virtue of a legal registration, the objection is unless the position is saved, as it is said to be, by the cei of registration as an organization which the Registrar has to the claimant association. That certificate is, by see. 57, "1 proof of cancellation," " conclusive evidence of the registration the organization therein mentioned and that it has complied the prescribed conditions to entitle it to be registered." point is completely disposed of by the decision of this Court in Carroll vy. Shillinglaw (1), and by the case of Baroness Wenl
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interests. There was not in force in 1904, nor is there now, State law which would refuse registration to a trade uni merely because its basis of association was the common inter of persons following the same vocation, without regard to the several branches of industrial enterprise to which their lahour was applied. Oarpenters, for instance, are, it is well known employed in a vast variety of industrial operations, yet in the States they were free under State laws to combine in sing] trade union. The vocation of engineer affords an equally go
These were the industrial conditions existing when the Co monwealth Parliament passed the Commonwealth Concilia and Arbitration Act 1904. In the forefront of the Stati (see. 2) is the following declaration : - * The chief objects of thi Act are: - " Then follows a formal statement of its purpos of which I shall quote two paragraphs : -
"YV. To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State Industrial Authorities in aid of each other ;
"VIL. To facilitate and encourage the organization of represen- tative bodies of employers and of employés and the submission of industrial disputes to the Court by organizations, and to - permit representative bodies of employers and of employés to ye = declared organizations for the purposes of tiki: Act:"
«« Association' means any trade or other union, or branch o any union, or any association or body composed of or rep tative of employers or employés, or for furthering or protect the interests of employers or employés."
This definition, applied to sec. 55, on the face of it enabl trade unions, on complying with the conditions prescribed, | register as organizations. The Act in its form and provisions substantially a copy of the State Act in New South W: Taking all these provisions into consideration, one inten! stands out prominently in the enactment, that is, the intention to apply its machinery to industrial conditions as it finds 1]
had come to be regarded in the several States as of sufficient H.C. oF A.
. . 1911. authority both to represent and control their members in Re 2 cas conduct of industrial disputes. Hae
I turn now to the respective contention of the claimants ee the respondents in order to determine which will best give effect _ anv __ R FireMeEn's
to this intention of the legislature, or, to adopt the expression of Assocratron
the rule in Heydon's Case (1), which will be the more effective to 0" ACE suppress the mischief at which the Statute was aimed and to v
R i 'i BrokEN advance the remedy it has provided. But let me first point out pn Pro-
by two illustrations the consequences which must follow from apa cc the respondents' interpretation. ee
I assume a land engine-driver in a coal mine to be a member eee of an organization duly registered in accordance with the res- pondents' view -as an organization of engine-drivers and firemen in connection with coal mining. He leaves the coal mine and is employed to do precisely the same work in driving an engine in a saw mill. If he wishes to have his interests in his new employment protected he must join another organization - an organization of engine-drivers and firemen in connection with saw milling. If he afterwards passes on to drive an engine in an iron foundry, still doing precisely the same work, he must join another organization - the organization of engine-drivers and firemen in that industry. Let me illustrate another consequence of the respondents' interpretation: The members of that long established and well known trade union the Amalgamated Society
of Engineers in following their vocation are employed in almost every variety of industrial enterprise. On the respondents' interpretation that trade union could not be registered as an organization. It could obtain the benetit of the Act for its members only by splitting itself into as many unions or organ- izations as theze are branches of industry in which its members are employed - and this in face of the definition to which I have called attention, which includes trade unions amongst the associa- tions which may be registered as organizations under the Act.
It is impossible, in my opinion, to hold on any ground of reason that an interpretation which would lead to so restricted an operation of the Act could carry out the will of the legislature,
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as it is expressed on the face of the enactment, or that intention, apparent in the provisions to which I have « attention, to recognize and adopt existing conditions of industr combinations could be made effectual by a construction which would cut down the right of the employés to effective represen tion of industrial interests in the Federal Arbitration Cour' something so much less free and less effective than that they have enjoyed in the industrial arbitration systems of | States. Thus the same conclusion as to the meaning of sec. 55 my mind irresistible whether the intention of the legislatur ascertained from the words of the Act taken in their ordi meaning, or on the assumption that its language is ambigt and that its intention is to be ascertained by a consideration the purpose of the Act in relation to the circumstances e j at the time it was passed into law. I am therefore of opini that sub-sec. (1) (b) enabled the claimants to register as the; done, and that the answer to the first question submitted by th learned President should be that an association of land eng drivers and firemen such as the claimant organization legally registered as an organization under sec. 55 of the A The second question assumes the registration of the ants to be invalid on the ground of the respondents' objectio the learned President asks whether the objection is fatal claim when the case comes on for hearing. It is I think q clear that the Arbitration Court can have no cognizance of acl by employés unless at the suit of a duly registered associatio employés. Failure to prove due registration puts a cli organization in the same position as a plaintiff company ina of law that had failed in proof of registration. The Pres can do nothing to overcome the difficulty. If the claimas cure the objection by registering anew, they must initiate proceedings anew. The Registrar's certificate under see. 57 cannot cure the de! The certificate is conclusive evidence of the fact of registratic and of compliance with what are called in sec. 55 the preserib conditions, but it affords no evidence that the association is' association entitled to be registered under the Act. 11
12 C.L.R.] OF AUSTRALIA. National Debenture and Assets Corporation (1) is' a' clear H. He A. authority in support of that view. The effect of a certificate abe oem
registration when put in evidence must depend upon the language Frperater
which the legislature has used in giving it efficacy. The effect of
the section now under consideration may well be described by pes the words of my learned colleague the Chief Justice in Carroll v. Associat10s
Shillinglaw (2): - ". . . . the acknowledgment of registra- See tration is only conclusive that the things which could lawfully acs
An amendment made during the argument limits the third question to the case of two respondents, The Board of Water Supply and Sewerage, Sydney, and the Mayor, Aldermen, Coun- cillors and Citizens of the City of Melbourne, The former of these bodies, constituted by the New South Wales Statutes 43 Viet. No. 32, 51 Vict..No. 28, and 53 Vict. No. 16, is in everything but name a Department of the New South Wales Government. It carries on public services which have always been regarded in Australia as governmental functions, it accounts directly to the State Treasury, and is in all important respects under govern- ment control. Under these circumstances it is clearly an instru- mentality of the State Government, and is therefore, in accordance with the principle laid down in the Railway Servants' Case (3), outside the control of the Commonwealth Arbitration Court. The
_ other corporate body, which I shall describe as the City of Mel- bourne, is incorporated by Victorian State Statutes, to which it is unnecessary to refer in detail. It is empowered to carry on, at of municipal funds, the services for the benefit of the citizens _ and the public which are usually undertaken by municipalities in Australia. Amongst these is the lighting of the streets.and pub- li places of the city. The Electric Light and Power Act 1896 adds new powers, and enables the City of Melbourne to light the city by electricity and to supply electricity not only for that pur- 'pose, but for the purpose of carrying on the business of electrical 'supply for house lighting and all other purposes for which
3 (J) (1891) 2 Ch., 505. f (2) 3 C.L.R., 1099, at p. 1108, "3 i (3) 4 C.L.R., 488.
_ be done have been done, and that it cannot have the effect Hrrr Pro-
of declaring that a thing which could not be lawfully done has PRUAES UO been lawfully done." 3 ie : Connor J,
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electrical power may be used, authorizing the city to de costs of the business out of the municipal funds, and pay its rec into the municipal funds. In its electrical supply departmer ni b city therefore carries on two operations, the one generally regardec in Australia as.a public service, the other being clearly a pri business. We are informed that the machinery which supp electricity for all these purposes is the same and their engin drivers employed on this work are therefore engaged in both thes operations at the same time. The question submitted is whe the Commonwealth Arbitration Court has jurisdiction to m: the city a party to the dispute in respect of such employés. the Ruilway Servants' Cuse (1) this Court adopted the prin laid down by the Supreme Court of the United States in 1 cases, and comprehensively stated by Mr. Justice Welson in Col- lector v. Day (2), that there must be implied in the Constit a prohibition against the exercise by the Commonwealth control in any form over an instrumentality of a State Go' ment. The Railway Servants' Case (1) involved the right of the Commonwealth Arbitration Court to make an award respectii the wages of employés in the Government railways of New South Wales. State railways in Australia have ever been regarded a: Government instrumentalities, and have been as such expres recognized in the Constitution. The Court held that Goverm railway servants could not be brought under the control o} Commonwealth Arbitration Court. In the American Cow municipalities, speaking generally, have been treated as carry! on their public services as instrumentalities of the State whi gives them their corporate existence. Meriwether y. Garrett { and United States v. Railroad Co. (4), broadly lay down principle that a municipal corporation is a portion of the got
ing power of the State, and that any attempt to control interfere with its functions is an attempt to interfere and co1 the State itself. The whole basis of the doctrine that there an implied prohibition against the Commonwealth exerci control over an instrumentality of a State Government, State exercising control over an instrumentality of the Com
wealth Government, is founded on an implication necessary for ene AL the preservation of the rights of Commonwealth and State <= ¢ within the ambit of their respective powers. The implication is pepenarep not to be carried beyond the limits of the necessity. Having PNOIS™: regard to the very great difference between the public services __ AND
= FineMen's undertaken by municipalities in the United States, and those assoctamox
undertaken by municipalities in Australia, this Court might well ai hesitate to adopt the principles laid down in those cases in their aa te
entirety, especially having regard to the form in which the ques- Hirt Pro-
tion has been brought before it. It is not, however, necessary for "™™TA*¥
the advising of the learned President to express any opinion ¢ O'Connor J.
upon the broad question to which I have referred. he principle which frees State government instrumentalities from federal control or interference has never been applied in America for the protection of ordinary businesses carried on for profit even by the State itself, In the case of South Carolina v. United 'States (1) the Court held that the exemption of State agencies and instrumentalities from national taxation is limited to those which are of a strictly governmental character, and does not extend to those employed by a State in carrying on an ordinary private business. In that case the sale of intoxicating liquor was the business of which the State in the exercise of its govern- ing power had taken charge. Following that principle, as I think we should, there would appear to be no reason why the employés of the City of Melbourne, engaged in the operations of the electrical supply business, should not come under the control of the Commonwealth Arbitration Court just as the employés in any private business would come under its control, if they were members of an organization engaged in an industrial dispute extending beyond the limits of Victoria. The fact that the employés, in carrying out that work, are also engaged in the supply of electricity for the public purposes of the city cannot remove their employers, the City of Melbourne, from the jurisdic- tion of that Court. In the case of employés engaged exclusively in the public services carried on by the city a different position may arise, and one which I do not think it necessary to consider at the present time.
H.C.or A. As to the fourth question, it is quite clear that the |
lon. President, in inquiring into the existence of such an indus'
Feperatep dispute as is necessary to give him jurisdiction, is no more
Bwcinz- py the ordinary rules of evidence than he is in hearing the me Drivers i
pete ase Sec. 25 of the original Act as amended applies to one
or AvS- the case as much as to the other. The question in the form 'TRALASIA
v. which it is stated should therefore be answered in the nega ae But the real point upon which, as I understand him, the lea eRerane oo) President requires the opinion of the Court is this: - If on : an inquiry he finds upon evidence taken in accordance with
25 that he has jurisdiction, and the question of his jurisdic is afterwards brought before the High Court for considerat is that Court, in inquiring into the foundation of his jurisdi bound by the ordinary rules of evidence, or may it come conclusion upon evidence admitted by him under see. 25, tho not otherwise legally admissible? In the determination of question of fact this Court, in the absence of statutory pro to the contrary, is bound, just as every Court is bound, by ordinary rules of evidence. Whether there is or is not a extending beyond the limits of any one State is a fact must be established at the hearing as the foundation of learned President's jurisdiction, If his jurisdiction is quest in this Court on the ground that there is in fact no such disp the Court must determine that fact upon evidence brought it in accordance with the ordinary rules of evidence, irrespect of what the learned President may have decided, and wit considering whether the evidence before him was or w admissible according to the ordinary rules of evidence. In ceedings on prohibition the evidence taken before the Arbit Court may, of course, be brought before this Court on affid: in the ordinary way, but the Court could not act upon evidence which would be inadmissible under the ordinary law evidence. The answer to the fifth question depends upon the construet of sec. 21 applying the principles of interpreting such sect adverted to in my answer to the second question. The Regist! certificate is, in my opinion, primd facie evidence of one fact
one fact only, that is, that the controversy which the party claimant alleges to be an industrial dispute does extend beyond the limits of any one State. It affords no evidence that the dis- pute is an industrial dispute within the meaning of the Act, or that the claimant organization is legally constituted or entitled to bring the claim under the cognizance of the Court. As to the President's proposal to create a Board of Reference with the powers set forth in the proposed fourth clause of the award, I am of opinion that he has no jurisdiction. These are, no doubt, questions of fact which must be settled between the parties in working out of the award. It is competent to the President to constitute a body empowered to determine such matters. The provisions of see. 40a of the Act of 1910 would seem to indicate fairly the nature of the authority which could for this purpose be legally conferred on a Board of Reference even under the Act of 1904. Ido not know of any ground, nor have I heard -any suggested, upon which it could be fairly contended that it was not within the power of the Commonwealth to enact that section.
I do not think it necessary to express any opinion as to what alterations in the form of proposed clause 4 of the proposed
_ award might make it valid. I agree with my learned brother the Chief Justice, and for the reasons he has given, that the duty of this Court under sec. 31 of the Act of 1904 extends only to ag answering questions of law arising out of concrete matters in
» Isaacs J. With regard to the first question, I am clear, as may be gathered from what I said in the Jumbunna Case (1), that the Constitution by see. 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 dis- regarding 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 re is whether in fact it did so by the Act of 1904. That
AND FIREMEN'S AssocraTION or Aus- TRALASTA ®. BROKEN Hitt Pro- PRIETARY Co. Lrp.
AND Frremen's AssocraTION or Aus- TRALASIA vw Broken Hit Pro- PRIETARY CO. Lrp.
depends on what is meant by "an industry " in that Sts shall presently indicate why I prefix the article to the wo "industry." : In the Jumbunna Case (1) I expressed an opinion - tho not a final one - that the Parliamentary use of "industry ' the Commonwealth Act was narrower than the Consti required, and I there stated that it had reference to the b in which the employer was engaged as well as the employé. Fuller consideration, now that the point has become e:
has confirmed me in my former opinion, and I shall explicitly state the reasons for my conclusions. i The keynote of the Act is the prevention or the quelli industrial strife which threatens or produces an interrup industrial operations by which the wants of the community satisfied. The public welfare is always the end in view. industrial operations, necessary, for instance, to produce or tribute the means of satisfying the requirements of the | of Australia, are in fact, or are likely to be, interrupt dispute between those who are co-operators in those ind operations - that is both employers and employés - tl dispute - with a certain qualification which is mate obedience to the Statute to be prevented or settled industrial operations are in common parlance called "indi and each of them is an "industry," and the Act when it of "any industry" uses the term in this concrete sense in the larger and general abstract sense. That is distinctly shown by the language of sec. 7 und head of a lock-out or strike. It says that where persons a view to being associated as employers and employés tively in any industry, have entered into an industrial agr with respect to employment in that industry, a refusal or to comply with the agreement, without reasonable cat excuse, amounts to a lock-out or strike. . % This section indicates what the legislature meant by industry " and also by " employment in" that industry, and the object of an "industrial agreement," that is, an agi respecting employment in the "industry," the term ne (1) 6 C.L.R., 309, at p. 370.
kone in which both employers and employés are H.C. or A. 1911.
ame intention is preserved in sec. 38, which in paragraph Feprrarep « i ». ENGINE-
aks of "a common rule of any industry"; and of the 5xSwwt
. affected" entering into competition with es AND (REMEN'S: ho ine and it requires the President before making a common Association -
publish a notification "specifying the industry." By SEATS: ph (g) the section declares the common rule binding upon v.
Z BRokEN persons engaged in the industry whether as employers or Hrr2. Pro-
oyés." See. 40 dealing with "preference" again requires PATREARE Des 'President to specify "the industry "; and this is an illumina- section, because the industry in which an employer is ired to give preference must be that in which he as well as iployés are engaged. Any other view would be meaning-
Then in see. 41 a marked distinction is drawn between "an dt carried on" upon premises, and "the work done" there. 'no doubt can possibly arise. re, however, examining sec. 55 on which the present conten- , one observation is necessary. It has reference to the tion to which I adverted. It is not every industrial dis- -which the legislature has made the subject of Common- hh interposition. A dispute may be so small as to cause no important disturbance of industrial functions, and a al line has been drawn by requiring it to possibly affect at one hundred employés. Exceptional cases are provided for ; he general rule is fixed in the following way. An industrial is the foundation of all jurisdiction ; but the only indus- ute which the Act of 1904 recognized was one to which ganization of employés was a necessary party, or else was ified by the Registrar as proper in the public interest to be with by the Court. This last provision shows clearly that public standpoint was the dominant consideration, and indi- rhy "industry" was used in the sense of the combined mn supplying the public.
, as to the first case we have to see what it meant by ¥ 'organization." It is not simply an association, because that by the interpretation section, includes very much more
than " organization." .," Association " means practically association, great or small, of employers or employés, w: without regard to any particular industries.
An "organization" is confined to a registered or procl organization. That compels us to turn to Part V. which to organizations. There we find them divided into " regist (secs. 55 to 61) and "proclaimed" (secs. 62 to 64). The trable organizations are those associations which are cons by the legislature as always sufficiently large and represent to invoke the application of the Act. Associations not attai to that standard may, if special circumstances render it able, obtain the President's recommendation, and then Governor-General proclaims them as organizations, so that standing exceptional nature of some industries, and of employ and employés in other industries, is thus provided for. individual instances were also provided for in the Act of 19 the second case in the definition of "industrial dispute." - no possible requirement of registration or curial interpos went unregarded. This particular association could have | and still can be, created an organization by proclamation or President's recommendation.
The true meaning, then, of sec. 55 is not, I think, difficult grasp. First, it dealt with employers' associations by allo any association of employers in any industry to be regi provided that during the preceding six months the empl associated employed on an average per month not less tl hundred employés in that industry.
The next paragraph gave the corresponding right to employés by permitting that same hundred employés - or m to register also as an organization, and so protect the right ol workers in the industry, as against the employers.
In other words, where the employers were allowed to reg' so were the employés. If the employers had only 99 emp! they could not possibly register as an organization ; and it be strange if, on the wording of the section, drawing no distineti between the industries referred to, those 99 employés could, b combining with another employé outside that industry, and hi ing nothing whatever to do with it, register themselves
m for the purpose of raising an industrial dispute in the rs' industry within the meaning of the Act, although the employers in precisely the same circumstances could not. unequal treatment is opposed to the reciprocal aspect of the le Statute. I feel no doubt that the industry referred to in is the same in both cases, and intended to be the connect- ink between the two sets of co-operators, employers and ed. Sec. 60 (k) bears out this construction very forcibly ing both employers and employés on the same footing as wncellation for insufficiency of numbers. then, there were no special interpretation in sec. 40 of the | "industry," there could hardly be any doubt that "industry," occupation it included, at all events meant the industrial ion contributed to both by the capital of the employer and our of the employés, united together in the work of sup- e needs of society. But some special interpretation was omake clear which of the possible industries - or indus- ms so jointly contributed to and existing in the com- 'were included in the combined expression "industry." er that question the definition of industry was framed to e practically all such operations except those expressly Whatever business, or trade, or manufacture, or under- x, or calling, or service, or employment a man or set of men in, to supply the public demands, is to be included as dustry," provided in it persons are employed for pay, hire, or reward. In other words, every industrial operation er in which the public are interested, and which by reason ites between those whose united efforts as employers and 7és may be retarded or stopped, is an industry in the sense d by Parliament. The special definition was not to dis- ate between employers' industries on the one hand and yés' industries on the other, leaving the public out of con- ion, but it was to embrace all industries in which both | be said to participate in meeting the demands of the people Commonwealth. " Calling," and "service," and "employ- t" are terms which could, of course, be used to define either, rimary meaning of words is a good starting point. But estion always is as to the meaning of the words as used in
EncineE- Drivers AND FIREMEN'S AssocraTION or Avs- TRALASIA vs Broken Hitt Pro- PRIETARY Co. Lrp.
H.C. or A. the connection in which they are found, and their prim 1911, ing is only one factor in determining their real signi ae was said by Lord Romilly, speaking for the Privy Couneil
er case of The " Lion" (1): - " The meaning of particular wor aa an Act of Parliament, to use the words of Abbott C.J. in Roos Hall (2),'is to be found not so much in a strict etymol
Go Bie vi mguage, nor even in popular use, as in thes shaiasta Propriety of language, pop' ;
v. or occasion on which they are used.'" Here they are =. linked with a phrase from which they cannot be separa sae Et oe which imparts a specific character to them. The calling, or | vice, or employment must be one " in which persons are emplo
for pay," that is, in which there are paid employés, so as calling, service, or employment in which the possibility of pute can exist. In other words, the calling, &., must b which embraces the two sets of contributors - employer employed. The disjointed meaning relied on by the claimai consequently not reasonably open. Reliance was placed also on the exception as to dor service. But that is not, in my opinion, in any case suffici¢ destroy what is otherwise plain. Not only may the refe have been merely used to indicate a negative, so as to allay
or prevent a possible argument as to constitutionality, bu
tion, be included in the arbitration provisions of the Act, may possibly be so under the present form of the legislati very large number of persons are engaged as principals in occupation of supplying public requirements, such as bo house keepers, and their industrial operations - that is, th "calling" - indispensably involves the employment of number of domestic servants. Similarly with hotels. T quite possible, and indeed probable, instances that may occurred to the mind of the iegislature, of businesses or takings or callings that in their operations directly con public, the employers, and the employés; and as that i: separate signification of "industry, as applying only employé, derives no support from the exception of don
Therefore, while feeling the deepest respect for the view, and regretting the loss of time and trouble to the in the present case, I am personally unable to experience hesitation in answering the first question in the negative. the second question, the objection is in my opinion 'the case. Parliament has permitted the Court to have ce, not of every industrial dispute, but only of such as brought before it in one of three prescribed ways - namely, b Registrar's certificate, (b) by submission by an organiza- 1, and (¢) by a State authority. The second was the only attempted ; and if there was no legal organization to sub- he dispute, it necessarily follows the Court can have no ce of the matter.
57 does not get over the difficulty. It makes the ax's certificate conclusive evidence of two facts in connec- 1 the association, namely, registration and compliance 2 prescribed conditions preliminary to registration. * But ves untouched the question of whether the association oregistration was one of the description required by sec. 55. at the root of the matter, and if the foundation goes, the 'cannot stand.
hird question is of much importance, and though not ly necessary to be answered in this case, having regard to ers already given, yet it has been argued, and for the nee of the learned President, and indeed of all concerned, inion of the Court may advantageously be expressed.
to the Sydney Board of Water Supply and Sewerage, the er seems clear enough.
position it holds under the Statutes (No. 32 of 1880 and 8 of 1888) is one which, for all practical purposes, identifies ith the central Government, that is the Crown; and the only arposes of the Act are strictly governmental.
tj Board, therefore, would not in my opinion be subject to urisdiction of the Commonwealth Arbitration Court.
r he Melbourne City ours stands in a diffenent position. It
AND Firemen's ASSOCIATION or Avs- TRALASIA w BROKEN Hitt Pro- PRIETARY Co. Lrp.
oF Aus- TRALASIA v Broken Hitt Pro- PRIETARY Co. Lop.
purposes of government. With this aspect we have no concern here; these functions are not under consideration in one way. Mr. Starke argued that whatever other pow authorities were granted to a municipal authority became facto governmental powers and authorities, and he relied on American authorities. As I read those authorities they loo other way, and tell against his argument. I need not | further to the American cases cited during the argument, would add to them a useful case, Lloyd v. City of New York cited approvingly in O'Donnell v. City of Sycrause (2). B dealing with the question cn reason and the recognized prin of British law and precedent, it is difficult to see how the co tion will hold. The mere fact that a corporation is constiti regulating agent for certain purposes, and for those purpo: entrusted with governmental powers, cannot alter the nati added capacities which are inherently different. There manifest distinction between governing and trading. Regul in the character of lawgiver, the industrial operations of ot cannot be classed as one with personally engaging in operations in competition with others. The two things simultaneously reside in the same structure, but they are therefore related. Local government is true government; it is as much a ordinate branch of the Sovereign legislative power to by-law or declare a rate as the order of a local justice of tl peace is a subordinate branch of the Sovereign judicial pc For the purpose of non-interference with their governi functions, a municipal corporation might fairly claim to s' Blackburn J. described it in Mersey Docks y. Cameron (: consimili casw with Crown servants; and to rely on the positi to borrow Lord Cranworth's phrase in the same case ( "extending . . . . the shield of the Crown to what u more fitly be described as the public government of the count But, on the other hand, corporate trading is none the less t and is on a wholly different plane. The difference is ineradi Sir Lloyd Kenyon pointed this out in Moodalay v. Morton ( (1) 5 N.Y., 369. (4) 11 H.L.C., 443, at p. 508.
(2) 112 Am. St. Rep., 558, at p, 562. (5) 1 Bro. C.C., 469, at p. 4 (3) 11 H.L.C., 443, at p. 464.
e said of the East India Company : - " They have rights overeign power, they have also duties as individuals; _. As a private company, they have entered into a 'ontract, to which they must be liable."
rom the doctrine of exemption of the Sovereign and of independent Sovereigns and their representatives from The " Charkieh" (1) contains useful reasoning and ies in this connection. And that doctrine is the only ible ground on which the municipality could claim exclusion he jurisdiction of the Arbitration Court in respect of its 'ial operations. My opinion, stated not as a final decision, s a strong impression after argument and careful considera- hat municipalities engaging in what is simply trading for just like other traders, must, in Lord Stowell's words in ift" (2), quoted on the page above referred to, " traffick mon principles that other traders traffick." And the of the proceeds does not affect the character of the n from which they are derived. It would, of course, strously unfair to the general body of traders if the com- unicipalities were not so obliged, though this is not in 'sufficient legal reason. I offer no opinion whatever as to under our Constitution, a State, by first exercising 'ign legislative power, authorizes itself to embark, and does in ordinary industrial enterprises, would be Rio tanto et to this branch of federal jurisdiction.
» fourth question cannot be answered by a simple " yes" or
.R. 4 A. & E., 59, at p. 99. (2) 1 Dods, 320, at p. 339.
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AND FIrEMEN'S ASSOCIATION or Aus- TRALASIA w Broken Hitt Pro- PRIETARY Co. Lrp.
material its existence or non-existence is made to appear Court itself. The Court may, in order to ascertain the fact its existence, proceed, without being open to legal challe that account, either by rigid adherence to the ordinary r evidence, or by accepting any information it thinks pr convenient in the cireumstances. What it has to do at the is to satisfy its mind thatit is not overstepping the bounds Parliament has laid down for it. es The learned President is then, so far as the ascertaim the dispute is concerned, at least so long as the Act remai its present form, in precisely the same situation as every « Judge whose jurisdiction depends upon the existence of extraneous circumstance. What is he to do? The situatic deseribed by Coleridge J. in Bunbury vy: Fuller (1) th "Suppose a Judge with jurisdiction limited to a parti hundred, and a matter is brought before him as having a within it, but the party charged contends that it arose in anc hundred, this is clearly a collateral matter independent o merits; and on its being presented, the Judge must not imm ately forbear to proceed, but must inquire into its truth or | hood, and for the time decide it, and either proceed or not p with the principal subject-matter according as he finds on point ; but this decision must be open to question, and i improperly either forborne or proceeded on the main matt consequence of an error, on this the Court of Queen's Bench issue its mandamus or prohibition to correct his mistake. answer then is, that the obligation to inquire as to the exi of the dispute arises as an incident to the functions of deter the issues before the Court, and for the purpose of seeil every essential condition of jurisdiction laid down by the observed. As the presence or absence of that condition, if tested, must eventually depend upon ascertainment in th provided by the rules of evidence applicable to such an ii that is, the rules of common law so far as no statutory prov exists, and according to statutory methods so far as any ai vided, I can only suggest that the safer way would be with this preliminary inquiry according to the rules which (1) 9 Ex., 111, at p. 140.
be followed by any Court. which might subsequently H- ©. or A.
) the fifth question, the certificate is not evidence of the psprrarep
. a : .. ENGINE- , of an industrial dispute as the law regards it, but is Deen
_ facie evidence that the relations between the parties, AND
BE them to amount to an industrial dispute, extend beyond Fem nits of one State. Onpa Ue 'i TRALASIA ith regard to the sixth question: Apart from express v BROKEN
ion on the subject, the implied power to refer any yyrr Pro- er to a Board or any other person or persons stood as it Berne? eady been expressed by me in the Bootmakers' Case
ice that judgment was pronounced, the legislature has, 'my opinion, no longer left the matter to implication so a Board of Reference is concerned. I say nothing about ministerial references to a Court officer for the purpose working out details of directions. But with regard to a d of Reference Parliament has, as it appears to me, stated ly what it requires, and the power, whatever it may be, to atters toa Board must now be sought in sec. 40 (a) of the
he proposed clause was not intended to be made in exercise of ywers given by that section, but in any view it must, I in several particulars unnecessary now to state, be con- as conferring too much power on the Board.
GGins J. My answer to the first question is " Yes." The Act t refuse to recognize, as an organization for its purposes,
members who get employment in all kind of employers' akings throughout the world. Nor does the Act refuse the of arbitration in cases where the employers, in dispute with és of a certain craft, do not happen to be carrying on under- ngs of the same character.
answer depends on the meaning of the Act: there is no iy under the Constitution. Parliament could, indeed, at
H.C. or A. any time put its intention beyond all doubt; but we have to 1911. with the Act as it stands. I am not surprised that the aseaee used have created a difference of opinion in this Court, Everse- draftsman has had occasion to use the word "industry" Drivers ' , AND more frequently in the sense of the undertaking of the empl eet than in the sense of the calling or occupation of the emp
or Avs- 'The circumstances in each case dealt with in the sections happ TRALASIA ' s ' v. to require the former sense; and the difficulty arises from
ioe ae effort of the framers of the Act to make the one word " indust
pee eee carry the burden of two. very distinct meanings. F The word "industry," in relation to employers in see. 55 (1) (a
and elsewhere, I shall assume for the present to mean tI industry in the sense of business or undertaking, But whi the meaning of the words in sec. 55 (1) (b), "any associati not less than one hundred employés in or in connexion with : industry"? It is said that this means that the association be confined to men, often of very diverse callings, engaged in some kind of (employer's) undertaking. That is to say, the engine drivers of a big undertaking, such as the Broken Hill Proprieta must, if they want the benefit of the Act, join an association which miners, truckers, timbermen, wheelwrights, sm plumbers, carpenters, &c., are members, and cannot join with of engine-drivers, doing the same kind of work in timber ya mills. Being few in number, the engine-drivers would be lost the crowd of members of other occupations, and would probal find their interests ignored. " Birds of a feather flock togetl but it is not to be so with unions under this Act, according to t argument of the respondents. It is not engine-drivers only will suffer if the respondents succeed, but societies such as t Amalgamated Society of Engineers, the Federated Carters Drivers, the Federated Wood Workers, the Shop Assista1 Federation, the Sewerage and General Labourers' Association, Amalgamated Society of Carpenters and Joiners, the Austral Society of Engineers, the Federated Clerks' Union - all al registered under the Act. In Great Britain such unions are ¥ recognized ; and also such unions as the Associated Blacksm the United Patternmakers, &.; but it is urged the federal is to be treated as excluding them. here is certainly no indi¢
Act of any intention to cut so violently into trade H.C. or A. ice, to interfere with the freedom of voluntary associa- age the betterment of industrial conditions. According to Fepmrarep
object of the Act is "to facilitate and encourage the ENS!
= 5 Drivers ion of representative bodies of employers and ofemployés _ aNp . : . = FrrEeMen's © . . and to permit representative bodies of employers Assoctatron é saanieati or Avs- mployés iis be peclarcdl or ganizations for the purposes of ee ." Prima fucie, this includes any kind of representative v. Broken
f employés, includes "craft unions," and the burden of wiz PRo-
ies on those who assert that there is any exclusion of craft ee
e word "industry," in the interpretation section, are not only undertakings (of the employers) but also call- occupations (of the employés). We ought to give the "trade," "calling," "service," "employment," their full g unless there is something in the context which prevents we ought to assume that Parliament had, at the least, nowledge as is common property as to the modes of It is quite true that we should correctly speak of a cutler's "trade;" but we also speak of a journeyman "trade." We may speak of an engineer's " calling"; but of a journeyman engineer's "calling." We speak, it is a postal service, or a carrying service; but much more 'y of a labourer's service, a waiter's service. We may a man has employment as a builder; but it is, at the st, equally appropriate to speak of a clerk's employment. st of the words in the clause are also appropriate, for in the of journeyman plumber, in the "calling" of moulder, "service" of waiter or labourer, in the "employment" of Tsons are employed for pay." Then the exception comes proves the rule; "excepting only persons engaged in ie service," &c. There is no force in this exception unless meant to exclude from "service" domestic service ; tion implies that under the earlier part of the clause domestic servants, whose employers may haye no busi- rtakings of any kind, could be treated as constituting
H.C.or A. I take it that the Act meant industrial workers on bof
FIREMEN'S f ni cstgg is ; 'Assoctatron cancel the registration "for any reasons," as well as for c
or Avs- specified reasons (sec. 60). The draftsman had in his m TRALASIA gis tan v wide definition of "association" in sec. 4 - "any trade or BROKEN i aie Hit Pro- union . . . . or any association or body composed raimtarx Co. representative of employers or employés, or for furtheri protecting the interests of employers or employés." He hi Higgins J.
to associate themselves as they thought best; subject, ho » to the power of the Registrar to refuse to register an ass if there is already an organization to which members might veniently belong (see. 59); and subject to the Court's po
limit the class of associations to be registered so as to ex for instance, an association so vague as the Friends of Hum: or the Workers of the World, and so as to confine registration associations connected with some definite industrial operat Moreover, I do not think that sufficient attention has been g during the argument to the words "in or in connection 2 any industry. Even assuming that "industry" is to hav narrow meaning of an employer's undertaking only, so th: refers only to some undertaking of one employer, or comm several employers, it does not follow that this association be registered. An association of miners is "in" the industry ; but an association of engine-drivers, or of fit "in connection with" the mining industry, as well as " nection with " other industries. The object of the words my mind, obviously to provide that the association mu: some definite connection with some concrete industrial ope: in which are to be found the relations of employer and em If the contrary view is correct, an engine-driver who hap} get employment for a short time in a pickle factory cannot the same organization as an engine-driver in a jam factory, th they are doing precisely similar work.
Perhaps I ought to add that, in my opinion, the word: by amendment in the Act of 1910 - * and includes a branel industry " - do not affect the question. If "industry" only an employer's business, it means so still. The amend: would probably allow the engine-drivers who happen to be fot time in flour mills to form a separate organization of their ow
would not allow the engine-drivers who happen to be in a H.C. or A. factory to join in an organization with engine-drivers who a emporarily next door in a candle factory. FEDERATED to the second question: Assuming that sec. 55 does not ENeme- of the registration of this association, I concur with my _ Np
d brothers, but with doubt, in the opinion that the objec- Pie
A or Avs- fatal, wan when the ame comes on for hearing. 'tlie erie
rt has no cognizance of the dispute unless an "organization" aes ;ROKEN
t it, under sec. 19 (b); and although the association has Hr Pro- n in fact registered in this case, it is an association which - et respondents' contention is right - is incapable of being an
zation. At the same time it must be admitted that the lt is very unfair to the claimant union. This union simply red the practice of the Registrar, who admitted many other raft unions. It was registered more than three years ago; none of the respondents applied to the Registrar, or to the ation Court, although they could have so applied, to have registration cancelled. On the faith of the registration the has spent much money and great labor with the view keeping the men working and of having the disputes settled he Court; and now, when an award is ready, it is told that tegistrar should not have registered. However, my answer tion two must be " Yes."
[he questions which are put actually arose in the course of the rete case before me, and are, in my opinion, questions of law » sec. 31); and as such they ought, I think, to be answered by H 'igh Court judicially. 'The consequences of the answers will or me, as President of the Court of Arbitration, to determine ject, of course, to the Constitution and the Act, and to such
The third question compels the consideration of all that difficult ine, propounded by Marshall C.J. in the United States, as to implied exemption of federal and of State " instrumentalities." former case I have ventured to express my scepticism as to soundness of the doctrine; for I think that in M'Culloch v. land (1) the principle of necessary implication has been ded far beyond logical limits, at all events beyond the limits
AND FIREMEN'S ASSOCIATION or Aus- 'TRALASIA w Broken Hitt Pro- PRIETARY Co. Lrp.
set by British law (Baater v. Commissioners of Taaation (N. (1)). The whole doctrine of exemption of "instrumentalities on inference ; and the inference becomes more and more diffieu the activities of the State increase. How can one say that ness undertakings of the State were meant to be exempted Constitution framed in 1789, at a time when no one dreamt of undertakings? In the South Carolina Cuse (2) the Sup Court of the United States seems at last to have found necessity for some limitation of the doctrine; and probably such line of demarcation as was found in that case will have t be adopted in Australia. But, although this question was mitted by me to the Court, I admit that it would be better n answer it at present - not to answer it unless we can answi fully. It would be well, first, to give an opportunity to States and to the Commonwealth to be heard; and to ha facts more precisely set forth as to the undertakings of several respondents affected. I am all the more inclined to course, as the answer to the question may involve the validity certain amendments made by the Act of 1910 in the interp: tion section.
My answer to the fourth question is, "No." The question there a dispute ? and Does it extend beyond one State ? have I raised in nearly every case that has come before me in the tration Court, and from the first. I quite recognize that existence of the dispute, and its extension, are conditions | cedent to the exercise of the jurisdiction of the Court, and I hitherto spent much time and care in taking full evidence fron all sides on the issue. But the position becomes different, 1 that I understand from my learned brothers that my findii the issue must be regarded as irrelevant on prohibition or m damus proceedings, and that even the evidence taken by me not be used except by consent. I shall, of course, regard it as duty not to proceed with an arbitration if it is clear from tl first that the conditions as to jurisdiction are not fulfilled also to demand some evidence showing a primd facie ¢ jurisdiction. But, as to such evidence as I take, I am of t opinion that sec. 25 applies, and that by virtue of the am
ot of the original section, I am not bound by any rules 4- C. or A. 1911.
= answer to the fifth question is, " No." The Act seems to have Fepgratep
en drawn under the idea that the existence of a dispute was a pil
'ter easy to be proved ; but the fact of its extension beyond one AND ee FIREMEN'S
would need some inquiry, and might be left to the Assocrarow
istrar, for a primd facie finding. In my opinion, the certifi- Baie of the Registrar under sec. 21 is merely evidence that, eS suming a dispute to exist as to industrial matters, it extends ae Pro- = PRIETARY Co, yond one State. : ee he sixth question, unfortunately, has not been argued as it Higgins J.
es to be argued - probably because the claimants rely on 40 (A). In the Bootmakers' Case (1) I inserted certain pro- sions as to a Board of Reference. 'The provision which was ked by the respondents in that case was a provision exempt- certain employers from complying with the provisions of my yard as to the contents of apprenticeship deeds. My award , with boys employed and to be employed, the dispute being to "the regulation of boy labour," without any qualification. ) one urged before me that existing apprentices were not to be It with, that their grossly unfair position was not to be ified ; but it was held by the Full Court that I had no power deal with existing apprentices, as they were not within the it of the dispute if properly construed. It was also held, jowever, that even assuming that I had power to deal with exist- _ ing apprentices, I had no power to delegate power to a Board of Reference to "annul" an existing indenture. Now, what I pro- 'ided was that full adult wages were to be paid to all except (inter alios) those lads who were indentured as I prescribed, or who were indentured in a manner approved by a Board of Reference. I did not create, or "appoint" any Board of Reference, but I stated what kind of Board of Reference, voluntarily appointed by the parties, could give the approval on which exemption would follow. It is obvious that the Board of Refer- ence was not given power to "annul" any indenture, but was enabled to exempt indentures from annulment - if " annulment" is the proper term. It was a provision purely in the interests of Q) 0 GLB. 2.
FEDERATED ENGINE Drivers AND Frremen's ASSOCIATION or Aus- 'TRALASIA v. Broken Hit Pro- PRIETARY Co. Lrp.
the employers, allowing a dispensation in certain cases fro general rule. It was as if I gave a direction that all lads passed a certain examination at a university were to be excepte from the rule. In such a case, there would obviously be no gation of discretion; the direction would be mine, and the eretion exercised would be mine. Under the Act, the Court Arbitration has power (sec. 38 (b) ) " to make any order or ai or give any direction in pursuance of the hearing or determi tion;" and (sec. 88 (w)) "generally to give all such directi and do all such things as it deems necessary or expedient i premises." The direction contained in my proposed clause is tl any decision of a question arising out of the award, if given b; Board of Reference, voluntarily constituted by both parties, shor be binding on the parties by virtue of my award; as if a co mittee, empowered to settle the conditions of racing, were to scribe that the decision of the judges is to be final. The r is that the duty of the Court "to settle a dispute" resembles more the duty of a Court of Chancery to "settle a schem for the conduct of a charity, than the duty of a Court of mon law in an action for debt or damages. The Court Arbitration does not award payment for violation of existing past rights, but prescribes a system of relationship for future. It has never been suggested, so far as I know, tha Court of Chancery, in committing to a board of trustees of charity the function of selecting boys for a school, or inmat for a benevolent institution, is thereby delegating its por The doubt which occasioned question 6 was occasioned by 1 language of the majority of the Court in the Bootmakers' Case | as to delegation of authority to a Board of Reference. I di think it was delegation ; but, if it is - and the Full Court held
to be a delegation - how can Parliament, when creating a trib al in pursuance of its power under the Constitution, enabl tribunal to delegate any authority to another body? As I said, this question has not been argued. My duty is to expr 8 my opinion in the affirmative as to question 6, except that words "or respecting any other matter of their industrial tions" must be excised. I inserted these words in the propos
ords which are often, and wisely, put in ayreements and H. C. or A. ards - merely in the hope of eliciting the opinion of the ree
: 2 2 e FIrEMEN'S tralia, now contained in sec. 404, operates to withdraw assoctation
1 powers as were already contained in the original Act, under OF Eis
' i 'TRALASTA isions which have not been repealed. v. BROKEN Hi Pro- PRIETARY Co.
B. L. [HIGH COURT OF AUSTRALIA.] < 3 i e i . APPELLANT; AND je é 4 . RESPONDENT,
ing of - Public places - * Shop," meaning of - Disturbance of market - Markets ~ Act 1890 (Vict.), (No. 1115), sec. 25.
Z Merzourne , Sec. 25 of the Markets Act 1890 (Vict.) provides that the commissioners of J#@ 13, 14» "markets "may fix the places within such town or portion of a town for the 1"
_ holding of markets, and may there erect und build or cause to be erected Griffitho.J.,
'or built, market houses with shambles stalls and other convenient buildings, ofttetaid
(1999) 95 FCR 1