Federated Engine-Drivers and Firemen's Association of Australasia Claimants; and Broken Hill Proprietary Company Limited [1911] HCA 31

Federated Engine-Drivers and Firemen's Association of Australasia Claimants; and Broken Hill Proprietary Company Limited [1911] HCA 31 - HCA 1911 case summary — Zoe

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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. *

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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.

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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

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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

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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.

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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.

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Judgment (353 paragraphs)

Cases Cited (1)