High Court of Australia|1919-06-20|Before: Rich JJ

For the reasons I have stated I think the question submitted to us should be answered in the negative.

The Court in this case is asked for its opinion on a question of law submitted to it by the Deputy President of the Commonwealth Court of Conciliation and Arbitration. During the hearing of the arguments in the case the question was limited by consent of the parties and the Court. The question now reads: "Has the Commonwealth Court of Conciliation and Arbitration power or jurisdiction to determine by an award the dispute between the organization and the municipal corporations, constituted under or subject to the provisions of the three Acts mentioned in par. 8 of this case, so far as the dispute relates to such operations of the said municipal corporations as consist of the making, maintenance, control and lighting of public streets or any of them?"

Counsel for the respondents then contended that, as the question was whether the Court had jurisdiction to determine by an award the dispute between the organization and the municipal corporations without limiting it to the ground stated in the case, they were entitled to show that the Court had no jurisdiction to make an award on the further ground that, assuming the municipal corporations were not State instrumentalities, the Court could not make an award in respect of the operations referred to, for three reasons: - (1) That the operations referred to were not matters about which an "industrial dispute" within the meaning of the Commonwealth Conciliation and Arbitration Act , or the Constitution, could arise, on the ground that "industrial" disputes - cognizable by the Court - could only arise in respect of "trade disputes in, or in connection with, an industry," or trade, or business, carried on for profit. (2) That the term "industrial disputes" at the time the Constitution was passed, both in England and Australia, was generally used in reference to "trade disputes" with manual labourers only, and never to disputes between employers and employees not engaged in manufacture or production, or in the transportation of goods for profit. That disputes as to wages, or conditions of employment, between employers and employees not engaged in manufacture, trade, or business, in the ordinary sense of the terms, would not, at the date of the Constitution, be considered "industrial disputes"; and, therefore, persons so employed could not now be held to be parties to any industrial dispute within the meaning of the words "industrial dispute" in pl. XXXV. of sec. 51. (3) That, as there is no "industry" properly called the municipal and shire council industry, the organization could not be a party to an "industrial dispute" within the meaning of those words in the Act.

It was also contended that the organization was not legally registered as "an organization," and could not, therefore, be a party to an industrial dispute. It was decided by the Court that, as the last question was not raised in the case, it would not, in answering the question submitted, consider the objection to the registration of the organization. I may, however, say that I agree with my brother Higgins, and for the reasons given by him, that the Court has jurisdiction to make an award on a dispute referred to the Court under a reference, where the claimant is an association of persons whether duly registered as an organization or not. The special case refers to the dispute in question as one referred to the Court - not submitted by plaint. It was also pointed out during the argument that the association registered was one of "employees connected with the construction, maintenance or cleaning of any road, street, footpath or channel or other undertaking carried out by any municipal council in Australia." The certificate of registration issued was for an association of employees engaged in connection with the "municipal industry." Sec. 4 of the Commonwealth Conciliation and Arbitration Act 1904-1915 includes as "industrial matters": "All matters relating to work, pay, wages, reward, hours, privileges, rights, or duties of employers or employees, or the mode, terms, and conditions of employment or non-employment; and in particular, but without limiting the general scope of this definition, includes all matters pertaining to the relations of employers and employees, and the employment, preferential employment, dismissal, or non-employment of any particular persons, or of persons of any particular sex or age, or being or not being members of any organization, association, or body, and any claim arising under an industrial agreement, and includes all questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole." "Industry" includes: "(b) any calling, service, employment, handicraft, or industrial occupation or avocation of employees, on land or water." In my judgment, undertakings and operations of municipal corporations - such as street making - are "industrial matters" within the meaning of the words used in sec. 4.

The only question left on this point, in my opinion, is whether the words "industrial dispute" in the Constitution can be properly held to include all that the Commonwealth Conciliation and Arbitration Act includes as "industrial matters." The question has been before the Court in other cases, to which I propose to refer; and the majority of the members of the Court (if not all of them) have, I think, held that the definition of "industrial matters" in the Act is not wider than the meaning Parliament was authorized - by pl. XXXV. of sec. 51 of the Constitution - to put on them. The first case in which the question was fully dealt with was the Jumbunna Case [124]. In that case the learned Chief Justice of this Court said [125]: "It must, of course, be a dispute relating to an "industry," and, in my judgment, the term "industry" should be construed as including all forms of employment in which large numbers of persons are employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life." The late Mr. Justice O'Connor said [126]: - "The words are free from ambiguity, and must be construed with their ordinary grammatical meaning. So construed, the definition includes within the term "industry" every kind of employment for pay, hire, advantage, or reward except agricultural, viticultural, horticultural, or dairying pursuits" (which were excepted by the Act). "It meant just what the two English words in their ordinary meaning conveyed to ordinary persons, and the meaning of these words seems to be now much what it was then" (at date of Constitution). After referring to the meaning of the word "industrial" in several dictionaries, the learned Judge pointed out that "the dictionaries apparently agree in recognizing both uses of the words "industry" and "industrial" as referring to labour in the production and manufacture of goods, and as referring to labour of any kind," and that Acts of Parliament referred to during the argument extended the use of the word to every kind of employment. Referring to the use of the word in the Constitution, O'Connor J. said [127]: "And it is certainly fair to assume that the expression "industrial disputes" was at the time of the passing of the Acts commonly used in Australia" (at the time the Constitution was established) "to cover every kind of dispute between master and workman in relation to any kind of labour." He further said [128]: - "After an examination of all these sources of information as to the sense in which the word "industrial" in connection with labour disputes was used at the time of the passing of the Constitution, I have come to the conclusion that it was used in two senses - in the narrower sense contended for by the appellants, and in the broader sense contended for by the respondents. There is nothing in the Constitution to show that the word was intended to be used in the narrower sense. On the contrary, the scope and purpose of sub-sec. XXXV. would lead to an opposite conclusion." Isaacs J. said [129]: "I do not rest my judgment on the narrower view, as in my opinion the constitutional power is broad enough to include even the larger sense of industry."

My brothers Isaacs, Higgins and Rich have dealt so fully with the use of the words "industry," "industrial matters," "industrial disputes," "trade disputes" and the word "industrial" - and the meanings given to the words mentioned before 1900 - that I do not see my way to add anything useful to what they have said on that matter.

The only question left to be decided, on the special case submitted, is whether the work of making, maintaining, controlling and lighting public streets by employees employed by municipal corporations is an industrial matter about which an industrial dispute within the meaning of the Commonwealth Conciliation and Arbitration Act and of the Constitution (pl. XXXV. of sec. 51) can arise. Assuming, although not admitting, that the work must be done by "manual labourers," as the respondents contend it must, there can be an industrial dispute between the corporations and the employees, for the claims are made on behalf of manual labourers. The dispute here is one between employers and employees. Assuming that it must, as contended by the respondents, be a dispute by trade unionists recognized as such in England in 1900, there can be an industrial dispute in this case, because, as my brothers Isaacs, Higgins and Rich have shown, municipal employees employed in ordinary municipal works were registered and recognized as trade unionists before 1900. In the case of Cope v. Crossingham [130], in the Court of Appeal, the Master of the Rolls in delivering his judgment said: "The Municipal Employees' Association is a registered trade union ... with branches," &c. It appears from the report of the case that the Association was a trade union constituted with branches, and was a society registered under the Trade Union Acts of 1871 and 1876 . In 1901 a branch of the society called the Woolwich Branch was constituted. It is clear, from what has been referred to, that in 1900 municipal employees were recognized as engaged in industrial work and as trade unionists. Trade unionists who are employed by the municipal corporations in connection with the making, maintenance and lighting of streets, and who are shown in the special case as members for whom the association is claiming wages and conditions of labour, include labourers, quarrymen, stone-masons, engine-drivers, carpenters, bridge carpenters, plumbers, carters. It was not seriously contended that the work of making streets (including necessary bridges, culverts, quarrying, &c.) would not be "industrial" if carried on by private contractors for profit, or that contractors carrying out contracts for making streets, bridges, &c., were not carrying on a trade or business in the ordinary sense of the term. In the special case it is stated that there were at the date of the reference of the dispute into Court one hundred and thirty-seven contractors carrying out works by contract for municipal, borough and shire councils, and that many of the municipal employees - members of the association - were employed by the contractors - respondents in the dispute - on works for the Councils referred to. It was admitted that "quarrying" (a necessary work in connection with street making) by a private employer would be "industrial," and that an industrial dispute could arise between him and his employees engaged at work in a quarry; but it was asserted that if a municipal corporation acquired the quarry and employed the same men no industrial dispute could arise, because the Council was not carrying on "an industry" or a trade or business for profit. So far as the question in this case is concerned, as the argument proceeded the ground mostly relied upon (after the Councils were held not to be exempt as State instrumentalities) was that the work was not carried on by the municipal corporations for profit in the ordinary sense of the term, although it would generally speaking be carried on by the Councils themselves to save contractors' profits. If that argument were sufficient, then a philanthropist who acquired a clothing factory and employed the same employees as the previous owner had employed would not be engaged in an occupation about which an industrial dispute could arise, if he distributed the clothes made to the poor free of charge or even if he distributed them to the poor at the bare cost of production. If the contention of the respondents is correct, a private company carrying on a ferry would be engaged in an industrial occupation. If a municipal corporation carried it on, it would not be industrial. The same argument would apply to baths, bridge-building, quarries, sanitary contracts, gas-making for lighting streets and public halls, municipal building of houses or halls, and many other similar industrial undertakings. Even coal-mining for use on municipal railways or tramways would not be industrial work if the contention of the respondents is correct. If the works in question are carried out by contractors or by private individuals it is said to be industrial, but not industrial within the meaning of the Arbitration Act or Constitution if carried out by municipal corporations. I cannot accept that view.

I agree with those of my learned brothers who hold that the Commonwealth Court of Conciliation and Arbitration has jurisdiction to determine by an award a dispute between an organization or association of employees and municipal corporations so far as the dispute relates to such of the operations of municipal corporations as consist of the making, maintenance, control and lighting of public streets or any of them, and that the answer to the question should be in the affirmative.

Bryant and Owen Dixon , for the claimant organization.

Starke and Stanley Lewis , for the City of Melbourne and certain Victorian municipalities.

Mann and Eager , for the Commonwealth, intervening.

Stanley Lewis , for the Municipal Council of Sydney.

Sir Edward Mitchell K.C. and Davis , for the State of Victoria, intervening.

J. A. Browne , for the State of New South Wales, intervening, and for the Sydney Harbour Trust, intervening.

Solicitors for the claimant organization, Farlow & Barker .

Solicitors for the respondents, Malleson, Stewart, Stawell & Nankivell ; Maddock, Jamieson & Lonie ; T. W. K. Waldron ; E. J. D. Guinness , Crown Solicitor for Victoria ; J. V. Tillett , Crown Solicitor for New South Wales ; A. Banks-Smith , Crown Solicitor for Tasmania .

[1] [1911] HCA 31; 12 C.L.R., 398.

[2] [1873] USSC 103; 86 U.S., 468, at pp. 475-476.

[3] 102 U.S., at p. 511.

[4] 129 U.S., at p. 147.

[5] 157 U.S., at p. 584.

[6] [1905] USSC 184; 199 U.S., 437.

[7] [1904] HCA 1; 1 C.L.R., 91.

[8] [1907] HCA 76; 4 C.L.R., 1087.

[10] [1865] EngR 610; 11 H.L.C., 443; 11 Eng. Rep., 1405.

[11] 17 Q.B.D., 795.

[12] 10 App. Cas., 282.

[13] 2 C.P.D., at p. 218.

[14] [1883] USSC 85; 108 U.S., 110, at p. 121.

[15] [1872] USSC 164; 17 Wall., 322.

[16] 17 Wall., at p. 334.

[17] 17 Wall., at p. 329.

[18] 17 Wall., at p. 330.

[19] [1903] USSC 192; 191 U.S., 207.

[20] 191 U.S., at pp. 220-221.

[21] [1898] USSC 81; 170 U.S., 304, at p. 310.

[22] 191 U.S., at p. 221.

[23] 191 U.S., at p. 222.

[24] [1911] USSC 40; 220 U.S., 107.

[25] [1905] USSC 184; 199 U.S., 437.

[26] [1911] HCA 31; 12 C.L.R., 398.

[27] [1913] HCA 71; 16 C.L.R., 245

[29] 4 M. & W., 621, at p. 640.

[30] (1892) 3 Ch., 242, at p. 252.

[31] [1846] EngR 597; 9 Beav., 546.

[32] 9 App. Cas., 61.

[33] L.R. 6 Q.B., 652, at p. 661.

[34] 10 Ch. D., 204.

[35] 10 Ch. D., at p. 219.

[36] 6 A. & E., 419.

[37] 9 A. & E., 435.

[39] 9 A. & E., at p. 442.

[40] (1896) 2 Q.B., 143.

[41] (1896) 1 Q.B., at p. 146.

[42] (1897) 1 Q.B., 64.

[43] (1897) 1 Q.B., at pp. 70-71.

[44] 11 H.L.C., at p. 505.

[45] 9 App. Cas., 61.

[46] 12 App. Cas., 643, at p. 649.

[47] (1897) 1 Q.B., at p. 71.

[48] (1907) A.C., 519, at p. 523.

[49] 20 Pa. St. Rep., 398, at p. 411.

[50] [1912] USSC 93; 224 U.S., 152.

[51] [1904] HCA 1; 1 C.L.R., 91.

[52] 4 Wheat., at p. 431.

[53] [1899] USSC 59; 173 U.S., 276, at p. 284.

[54] [1904] HCA 1; 1 C.L.R., 91.

[55] (1905) A.C., 551.

[56] 3 App. Cas., 889, at p. 905.

[57] [1879] USSC 52; 100 U.S., 339, at p. 347.

[58] 122 Mass., 344.

[59] [1898] USSC 156; 172 U.S., 1, at p. 8.

[60] 220 U.S., at p. 356.

[61] [1898] USSC 156; 172 U.S., 1.

[62] 114 Am. St. Rep., 763, at p. 767.

[63] 70 Mo. App., 60.

[65] 10 Ch. D., 595, at p. 601.

[66] [1865] EngR 610; 11 H.L.C., 443.

[67] L.R. 1 H.L. (Sc.), 348.

[68] 17 Q.B.D., 795.

[69] (1896) 2 Q.B., 143; affd. on app., (1897) 1 Q.B., 64.

[71] 117 U.S., at p. 178.

[72] 191 U.S., at p. 221.

[73] 157 U.S., at p. 584.

[74] 17 Wall., at p. 327.

[75] 199 U.S., at p. 461.

[76] 220 U.S., at pp. 157-158.

[77] 220 U.S., at p. 172.

[78] 220 U.S., at p. 356.

[80] 153 Mass., 426.

[81] 122 Mass., 344.

[82] 4 App. Cas., 256.

[83] (1895) A.C., 433.

[84] [1916] HCA 80; 22 C.L.R., 352.

[85] [1905] USSC 184; 199 U.S., 437, at p. 448.

[86] 19 How., 393, at p. 426.

[87] [1824] USSC 18; 9 Wheat., 1, at p. 188.

[88] 1 Tax Cas., 55.

[89] 2 Tax Cas., 541.

[90] 4 Tax Cas., 435.

[91] [1917] UKPCHCA 1; (1917) A.C., 528; 24 C.L.R., 396.

[92] 18 C.L.R., at pp. 243, 255, 263.

[93] 6 C.L.R., at pp. 367-368.

[94] 8 C.L.R., at pp. 510-511.

[95] 17 C.L.R., at p. 701.

[96] (1912) A.C., 149, at p. 178-179.

[97] 18 C.L.R., at p. 244.

[98] (1911) A.C., 641.

[99] (1911) A.C., at p. 642.

[100] (1911) A.C., at p. 643.

[101] (1911) A.C., at p. 642.

[102] (1911) A.C., at p. 644.

[103] (1911) A.C., at p. 645.

[104] (1911) A.C., at p. 646.

[105] (1911) A.C., at p. 647.

[106] [1913] HCA 53; 17 C.L.R., 680.

[107] [1914] HCA 58; 19 C.L.R., 43.

[108] (1909) A.C., at p. 511.

[109] 17 C.L.R., at p. 703.

[110] 17 C.L.R., at p. 703.

[111] 25 T.L.R., 181.

[112] L.R. 1 H.L. (Sc.), 326.

[113] L.R. 1 H.L. (Sc.), at p. 343.

[114] (1891) A.C., 371.

[115] [1901] UKHL 1; (1901) A.C., 426, at p. 438.

[116] (1913) 1 Ch., 336, at p. 375.

[117] 12 C.L.R., at p. 435.

[118] [1909] HCA 20; 8 C.L.R., 419, at p. 431.

[119] [1908] HCA 94; 6 C.L.R., 469, at p. 610.

[120] 34 L.J. P. M. & A., 27.

[121] [1877] USSC 167; 96 U.S., 1.

[122] 7 C.A.R., 25, at p. 92.

[124] 6 C.L.R., 309.

[125] 6 C.L.R., at p. 332.

[126] 6 C.L.R., at p. 365.

[127] 6 C.L.R., at p. 366.

[128] 6 C.L.R., at p. 367.

[129] 6 C.L.R., at p. 371.

[130] 25 T.L.R., 593.

Municipal Corporation Act 1883

Conciliation and Arbitration Act 1894

Conciliation and Arbitration Act 1904

Protection of Property Act 1875

Disputes Conciliation and Arbitration Act 1892

Australian Conciliation Act 1894

Federated Municipal & Shire Council Employees' Union of Australia v City of Melbourne [1919] HCA 73; (1919) 26 CLR 508 (20 June 1919)

Federated Municipal & Shire Council Employees' Union of Australia v City of Melbourne [1919] HCA 73;

At a glance

Court

Decision date

Before

Source

Judgment (147 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (2)

Federated Municipal & Shire Council Employees' Union of Australia v City of Melbourne [1919] HCA 73; (1919) 26 CLR 508 (20 June 1919)