Federated Ironworkers' Association of Australia v Commonwealth

The question upon these two demurrers is whether s. 96M of the Conciliation and Arbitration Act 1904-1951 is invalid. Section 96M as it now stands was enacted by the Conciliation and Arbitration Act (No. 2) 1951, which repealed the former s. 96M, a provision that had been introduced by the Commonwealth Conciliation and Arbitration Act 1949. The general purpose of the section is to arm the Industrial Registrar with authority to undertake the conduct of an election of office-bearers of an organization registered under the Act or of a branch of such an organization. The authority is subject to certain conditions precedent. But when it arises the registrar may conduct the election himself or direct some other officer of his Registry to do so or arrange with the Chief Electoral Officer for it to be done by one of his officers. The attack upon the validity of the provision is made upon the ground that it is outside the power conferred upon the Commonwealth Parliament by s. 51 (xxxv.) of the Constitution to legislate with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State and the power conferred by s. 51 (xxxix.) to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament and that there is no other power to which it may be referred. Everything which is incidental to the main purpose of a legislative power is contained in the grant of the power itself. Thus the power to make laws with respect to conciliation and arbitration for the prevention and settlement of two-state industrial disputes carries with it authority to make such provisions as are incidental to the effectuation of the purpose described by the express words of the power.

Under this doctrine the Court upheld long ago the provisions contained in Part V. of the Act of 1904 for the registration of organizations of employers and employees: Jumbunna Coal Mine v. Victorian Coal Miners' Association [1] . Because the legislative power related to disputes to which large and changing bodies of men were or might be parties and appointed arbitration as the means of settling such disputes it was considered to be incidental to the main purpose of the power to provide for the registration of associations of employers and of employees and for the incorporation of the bodies so registered. By that means the double purpose was thought to be served of enabling the representation of potential disputants before the Court and of providing a method of working out the scope and operation of awards. But the power to regulate and control organizations was not treated as limited to these purposes. The peculiar nature of the legislative power and of its subject matter involved a good deal more.

The judgment of O'Connor J. expresses with great clearness the principles upon which the Court proceeded in bringing the regulation of industrial organization within the operation of s. 51 (xxxv.) as a matter incidental to the exercise of that legislative power. As these principles govern the decision of the present case it is desirable to set out a passage from his Honour's judgment in which they are stated, extensive though the passage is. After formulating the well-known test of the validity of the legislative exercise of an incidental power which depends upon the end aimed at being within power and the means chosen being appropriate, the learned judge said: -

The end aimed at by the Act in question here is the prevention and settlement of industrial disputes extending beyond any one State by conciliation and arbitration. It may well be conceded that there is no general power to prevent and settle industrial disputes by any means the legislature may think fit to adopt. The power is restricted to prevention and settlement by conciliation and arbitration. Any attempt to effectively prevent and settle industrial disputes by either of these means would be idle if individual workmen and employés only could be dealt with. The application of the "principle of collective bargaining", not long in use at the time of the passing of the Constitution, is essential to bind the body of workers in a trade and to ensure anything like permanence in the settlement. Some system was therefore essential by which the powers of the Act could be made to operate on representatives of workmen, and on bodies of workmen, instead of on individuals only. But if such representatives were merely chosen for the occasion without any permanent status before the Court, it is difficult to see how the permanency of any settlement of a dispute could be assured. Even when the dispute is at the stage when it may be prevented or settled by conciliation, the representative body must have the right to bind and the power to persuade not only the individuals with whom the dispute has arisen, but the ever changing body of workmen that constitute the trade.

It has been contended that it was unnecessary for this purpose that the Court should do more than give to the trade unions and other associations constituted under the State laws a locus standi before the Commonwealth (Court). But such a course would very much limit the effective exercise of the power. All employés likely to seek the aid of the Court are not in State unions or associations. Besides, it may be fairly said that it is essential to the proper control of the organization by the Court that their rules and constitutions should be under the control of the Court, and that the constitution of all organizations having a status in the Court should, in certain respects at least, be uniform. Every effective agreement for the settlement of disputes brought about by conciliation and by compromise must regulate the working relations of the parties for a definite period. Similarly, an award must be for a definite period. In either case it is essential that the representative body should be strong enough to secure obedience by individual workers of the conditions of the agreement or award, and, in the case of an award, it is essential not only that the Court should have the representative body before it in the hearing of the dispute, but that it should be able to make that body responsible for the observance of that award by those whom it represents.

Again, if the award is to have any value, the Court must be able to enforce obedience on the representative bodies. That can only be accomplished by the infliction of penalties. But the award of penalties is a mere form unless there are funds available for the payment of penalties, and property which may be levied on if penalties remain unpaid. Without any further examination of the requirements essential in the representative body which is to stand for the workmen in the industrial dispute, I have said enough, I think, to lead fairly to the inference that, if the judicial power of the Commonwealth is to be effectively exercised by way of conciliation and arbitration in the settlement of industrial disputes, it must be by bringing it to bear on representative bodies standing for groups of workmen. Further, that the representative body must have some permanent existence, irrespective of the change in personnel of its members from time to time which is always going on. That it must have a power to control by enforcement of its rules, and so to influence its members individually to perform the conditions of agreements and awards made in settlement of industrial disputes. That it must be endowed with the legal capacity for holding moneys for purposes of its business and of investment.

It is obvious that a representative body of the kind I have indicated could be constituted only by the creation of some legal entity, whether it be of the nature of trade union, friendly society, or corporate body with limited powers. It being once established, as I think it has been, that it is essential for effective exercise of the power conferred by the Constitution that provision should be made for the creation of some such legal entity invested with the necessary incidents and rights, it is for the Parliament, not for this Court, to determine the particular form in which the legal existence should be conferred [1] .

1. (1908) 6 C.L.R., at pp. 358-360.
   1. (1908) 6 C.L.R., at pp. 358-360.

In Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [2] the majority of the Court recognized that organizations registered under the Act had a place not only in the settlement of industrial disputes but also as the instruments for propounding claims from which industrial disputes may arise. Isaacs J. [3] regarded it as an essential condition of the exercise of the power that associations of employees, and no doubt of employers, should be constituted to represent the class of employees or employers, as the case might be, in the particular industry concerned. Starke J. [4] based his judgment upon the view that an industrial dispute arises from an industrial relationship and concerns industrial conditions affecting the class engaged in the industry and not merely affecting individual and definite members of the class. Because associations of large bodies of men are defective in legal personality it was expedient, at least for the purposes of legal representation and probably also for the purposes of collective bargaining, that they should be organized in some form. His Honour adopted the view that an organization registered under the Arbitration Act is not a mere agent of its members, but it stands in their place and acts on their account and is representative of the class associated together in the organization. Thus it can make demands on their behalf, the acts and conduct of its members being relevant upon the question whether a dispute submitted to the court by an organization is real or illusory, but otherwise being immaterial. See, further, Metal Trades Employers' Association v. Amalgamated Engineering Union [1] . This may have involved an extension of the principles adopted by the Court in Jumbunna Coal Mine v. Victorian Coal Miners' Association [2] , but it is now an accepted constitutional principle that associations of employees may, in the exercise of the power conferred by s. 51 (xxxv.), be established, registered and incorporated so that in the formulation of demands and the settlement of industrial disputes classes of men in an industry or a group of industries may be represented.

1. (1925) 35 C.L.R. 528. 2. (1925) 35 C.L.R., at pp. 540-542. 3. (1925) 35 C.L.R., at pp. 548-551. 4. (1935) 54 C.L.R. 387. 5. (1908) 6 C.L.R. 309.

In effect the question which we are called upon to decide in the present case is whether the incidental power also includes legislative authority to take measures directed to ensuring that the officers of an organization so registered and incorporated shall be elected in a manner calculated to ascertain the authentic will of the members. A more detailed examination of s. 96M will show that in substance that is the purpose of the provision. Sub-sections (1) to (4) express the conditions precedent to the exercise of the power conferred upon the Industrial Registrar. Sub-section (1) enables an organization or a branch of an organization to make a written request to the Industrial Registrar that an election for an office in the organization or in the branch (as the case may be) should be conducted under the section with a view to ensuring that no irregularity occurs in or in connection with the election. The word "office" has a wide meaning. By s. 4 of the Conciliation and Arbitration Act 1904-1951, it is defined to include the office of a member of the committee of management, the office of a person holding, whether as trustee or otherwise, the property of the organization or branch, and every office within the organization or branch for the filling of which an election is conducted within the organization or branch. The word "irregularity" also has a defined meaning. By s. 4 it is defined in relation to an election for an office to include a breach of the rules of an organization or a branch of the organization and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes and by no other persons or a correct ascertainment of the results of the voting is, or is attempted to be, prevented or hindered. Sub-section (2) of s. 96M gives a secondary meaning or application to the words "organization or branch of an organization" in sub-s. (1). It provides that for the purposes of sub-s. (1) a request by an organization or branch may be made by or on behalf of the committee of management of the organization or of the branch, as the case may be, or by a number, ascertained as prescribed, of the members of the organization or of the branch, as the case may be. In fact by regulations a number has been prescribed in the case of the request of a branch of one thousand or one-tenth of the total number of the members of the organization, whichever is the less, and in the case of a request by a branch five hundred or one-fifth of the total number of the members of the branch, whichever is the less (see reg. 133B of the Conciliation and Arbitration Regulations inserted by S.R. 1951, No. 100).

It was pointed out on behalf of the plaintiff upon the argument of the demurrers that, so far as sub-s. (2) went, it would be possible to prescribe some very small number which in no sense could be regarded as representing the apprehensions of any substantial body of members. That is not what sub-s. (2) contemplates, but if this possibility be open upon the words of sub-s. (2) it is not a matter which goes to power; for if the power exists it depends upon the regulation of the election of officers being a matter incidental to the constitutional power. It cannot depend on the character of the conditions which are laid down as pre-requisites of the intervention of the Industrial Registrar or some other authority to supervise the voting.

Sub-section (3), which relates to prescribing times within which requests may be made, is not important constitutionally. Sub-section (4) provides that where a request is made or purports to be made under the section, the Industrial Registrar shall, after making such inquiries, if any, as he considers necessary, decide whether or not the request has been duly made. The meaning is that he must ascertain whether the request has been made by the organization or branch or by or on behalf of the committee of management of the organization or branch or by the requisite number of members and in due time. The Industrial Registrar's duties under s. 4 are administrative and involve no exercise of the judicial power of the Commonwealth. If he decides that the request has been duly made he may then proceed to exercise the power conferred by sub-s. (5). That sub-section provides that where the Industrial Registrar decides that a request has been duly made under that section he shall inform the organization or branch accordingly and may conduct the election, direct a Deputy Industrial Registrar or other employee in the Registry to conduct the election or make arrangements with the Chief Electoral Officer for the Commonwealth for the conduct of the election by a Commonwealth Electoral Officer or Returning Officer holding office under the Commonwealth Electoral Act 1918-1949. Sub-section (6) then provides that, notwithstanding anything contained in the rules of the organization, the person conducting the election may take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connection with the election or to remedy any procedural defects in those rules which appear to him to exist. The remaining sub-sections of s. 96M do not appear to affect the question of validity with which this case is concerned. Even if it were possible to discover any independent ground for attacking their validity it is hard to suppose that the validity of sub-ss. (5) and (6) would be affected. In addition, the facts alleged in the statement of claim hardly give the plaintiff a locus standi to make any independent attack upon their validity. But as some reliance was placed upon them on behalf of the plaintiff during the argument it is perhaps as well to mention them. Sub-section (7) penalizes disobedience to the directions given under sub-s. (6) for any obstruction or hindrance. Sub-section (8) excludes the provision of the division of the Act relating to inquiries into elections if the election has been conducted under s. 96M. Sub-section (9) provides that an election conducted under the section is not to be invalid by reason of any irregularity in the request or by reason of a breach of the rules. Sub-section (10) throws on the organization or branch concerned the expenses of an election conducted under this section, excepting the salary of any officer of the Commonwealth performing any duty in relation to the election. Sub-section (11) is an evidentiary section affecting only the identification of the members of the organization.

What is ultimately in question is the validity of sub-ss. (5) and (6).

We think it follows from the principles to which we have already referred that the organizations registered and incorporated under the Conciliation and Arbitration Act may be regulated under the incidental power with a view to ensuring that the election of officers is duly carried out. The Federal power to provide for the formation, registration and incorporation of such organizations depends upon the necessity or the desirability of large classes of men being represented. Representation involves much more than the establishment of a corporation, that is to say, of a legal person capable of being made a party to legal proceedings and of being the object of legal rights and duties. It involves the representation of the men by a committee of management or other officers who control the actions of the corporate body. The authentic expression of the will of the members in appointing officers must be incidental to the subject matter of the constitutional power. It arises directly out of the considerations which afforded the constitutional justification for the provisions which are now Divs. 1 and 2 of Part VI. of the Conciliation and Arbitration Act 1904-1951 and Schedule B (see particularly Schedule B (1) (a)).

It was suggested that registered organizations do, or may, have a double aspect and that behind the corporate body established under these divisions lies an association, voluntarily formed, of persons for purposes not necessarily connected in any way with industrial disputes or arbitration and conciliation and that the officers and committee of management are equally concerned with the aspect of the association which is not the subject of the Federal power. This may be so, but it cannot affect the legislative power of the Commonwealth Parliament to deal with the organization in the aspect which brings it under Federal power, and as the officers and committee of management are appointed to conduct the affairs of the body, it must follow that their proper election or appointment can be regulated by Federal law. The point was taken that under sub-s. (6) it is possible for the officer conducting the election to ignore, at all events to some extent, the provisions of the rules of the organization or branch. Sub-section (6) does not authorize him to ignore the substantive rules which govern the constitution of the offices and the requirement that the occupants should be elected. It is carefully guarded and doubtless only authorizes departures from particular rules for the avoidance of irregularities in the defined sense and for remedying what it describes as procedural defects. That is to say, the sub-section is directed to overcoming subsidiary impediments to the proper execution of the main provisions of the rules, sanctioned under ss. 70 and 71, which govern the election of office-bearers. Such a provision is fairly within the incidental power.

For these reasons we are of opinion that the attack on the validity of sub-ss. (1) to (6) of s. 96M fails. We do not cast any doubt upon the validity of the remaining sub-sections of s. 96M but their validity does not strictly arise for decision. For these reasons the demurrers to the statement of claim should be allowed, and with costs.