Federated Ironworkers' Association of Australia v Commonwealth

Federated Ironworkers' Association of Australia v Commonwealth - [1951] HCA 71 - HCA 1951 case summary — Zoe

[13]

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.

[15]

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).

[17]

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.

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties