89 "[T]he business of the Australian Capital Territory", in relation to the employment of the staff who had performed the actual work of the services of government in and for the Territory, was evidently taken as an apt and plain way, and one which did not require statutory extension of the meaning of the word "business", to describe such governmental services. The reference to the Australian Capital Territory Government Service was enacted after the Social Welfare Case. There never was scope, in my view, to say that the phrase "is taken to be" in s 149(1A) somehow deemed "the business of the Australian Capital Territory", in one sense of the word business, to be "business" in some other sense when the same term was used in s 149(1)(d). It seems more likely that, after the Social Welfare Case, those who drafted what is now s 149(1A) assumed that "business" in what is now s 149(1)(d) would be understood as having a broad meaning in order to give full efficacy to awards made on the wider understanding of the constitutional and statutory award-making power that was revealed by that case, as well as to other awards. It might, however, be said that there was scope, after the initial enactment, by means of a statutory amendment of what is now s 149(1A), for an argument that, although the "business" of the Australian Capital Territory was assumed by Parliament to be within the concept of the "business" as that expression is used in s 149(1)(d), that assumption did not necessarily have the effect that, in s 149(1)(d), the expression should be given the meaning which it was thus assumed by Parliament to have. In my opinion, any such scope disappeared, however, when in 1996 the two subsections were contemporaneously re-enacted as a single section of the WR Act. Thus, to my mind, the text of s 149 itself makes it clear that "the business of an employer" may very well refer to governmental services in which employees are employed.
The definition of "single business" in s 170LB
90 The definition of "single business" in s 170LB of the WR Act must be understood in the entire context of Part VIB of the Act dealing with "certified agreements". Section 170L proclaims that the object of the part is to facilitate the making and certifying by the Commission of certain agreements, "particularly at the level of a single business or part of a single business". Without extension or further explanation, the term "single business" might have been thought to have merely a meaning consonant with the emphasis the WR Act places on "workplace" relations between employer and employees, on "ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level", and on employers and employees being able "to choose the most appropriate form of agreement for their particular circumstances" (see s 3, preamble and subs (b) and (c); s 3 sets out the "principal object" of the WR Act; the emphasis has been supplied).
91 The definition of "single business" in s 170LB accomplishes a number of things. One of its evident purposes is to make it clear that a single agreement may be made to regulate conditions at many workplaces, provided they are comprised within one "business" of a single employer. However, agreements may also be made at the level of a particular project which forms part of what might be thought to be a single business of an employer, for example, at one mine or construction site carried on by an employer whose business is, respectively, mining generally or construction generally. Likewise, the term "undertaking" is in aid of the same idea (see s 170LB(1)(a)). The work of the definition is the exegesis of the concept "single" rather than the expansion of the term "business".
92 Consistently with this view, the reference in s 170LB(1)(b) to the activities carried on by government entities has the effect and likely design of making it clear that, for example, every activity of the Commonwealth could be regarded as a "single" business of the Commonwealth. There is a particular reason for that provision about governments. Sections 170LY and 170LZ of the WR Act give a far-reaching effect to a certified agreement once it comes into operation. In particular, under s 170LZ, such an agreement prevails, except as to a few subject matters dealt with in subs (2), over terms and conditions of employment specified in any State law, award or employment agreement, where they are inconsistent. Likewise, to the extent of any inconsistency, subs (4) provides that a certified agreement displaces prescribed conditions of employment specified in a prescribed Commonwealth law. Thus, if they were prescribed, all conditions of employment specified in or under the Commonwealth Public Service Act (Cth) 1922 and Regulations could be displaced by a certified agreement. In fact, very nearly all such conditions of employment have been so prescribed (see Reg 30ZE and Sch 5 of the Workplace Relations Regulations). Thus a single agreement might be made with Commonwealth officers and employees as diverse as, say, solicitors and lighthouse cleaners, for the abolition or supersession of a term of employment common to them. Absent some extension of the notion of single business such as is effected by s 170LB(1)(b), the notion of "a" or "a single" business carried on by the Commonwealth might well, especially in the light of other indications in the WR Act of the kind to which I have referred, have been thought not to extend so far as to enable the wholesale displacement of Commonwealth legislation by a single agreement affecting persons employed in so many disparate activities carried on by the Commonwealth. But there is no reason to think that the necessity to include a reference to "the activities carried on by" the governments referred to in s 170LB (1)(b) was brought about by an assumption that the use of the word "business" would not be apt to encompass in principle those kinds of activities. Subsection (1A) of s 149 would stand as a barrier against any such conclusion.
The ATOF Case
93 If the decision in the ATOF Case does not control the result in this case, it is nevertheless highly confirmatory of the analysis that RD Nicholson J makes of the matter.
94 It is true that in the ATOF Case the question, whether there was "scope for the concept of succession to a business as between two statutory authorities, notwithstanding that the functions which they discharge are governmental functions performed … for the benefit of the Crown", was regarded as foreclosed by the terms of the union rule there under consideration (at p 228). Thus assuming the capability of there being such a succession, the Court went on to consider whether the statutory authority in which most of the functions of a now abolished authority had been legislatively vested, was "a successor or assignee or transmittee" (the emphasis was supplied by the High Court) of the business of the earlier authority. The argument put before the Court was that "a substantial identity between the business formerly carried on by [the earlier authority] and the business now carried on by the [new one] must be shown to exist in order to constitute [the new authority] as a successor of the business of the [earlier one]." That argument was rejected in favour of the view that "the inquiry should be directed to ascertaining whether the business or the activities formerly carried on by [the earlier body] are still carried on by [the new one], notwithstanding that the [new authority] also carries on one or more substantial activities" (at 229-230). Thus, it is true that the main point of the decision is not really apposite here.
95 However, what is noteworthy is that the Court implicitly rejected any idea that a statutory process consisting of (a) the "abolition" of one statutory corporation, (b) the "substantial amalgamation and rationalisation [of its and other statutory bodies'] functions" and (c) the "imposition" of those functions on a new corporation (see pp 222-3), could not or did not fall within the process comprehended by the succession clause in issue. Nothing in the union rule foreclosed such a conclusion: the High Court justices might, as a logical possibility, have held that, although there could in some circumstances be a "succession" as between statutory authorities, the actual statutory process in the ATOF Case was not apt to produce what could fairly be called a succession. The Court could not have acted as it did if its members had felt any attraction to such a position. Such a rejection of any such conclusion is consistent with my suggestion that a "succession clause" such as was in issue in the ATOF Case (and which is virtually identical in its wording, though not its context, to that in question here) can, in an appropriate context, properly be interpreted as having a catch-all intention as its mainspring. Although the contexts in the ATOF Case and in this case are different, for different but valid reasons in each context, it is appropriate in both cases to have imputed such an intention to those who drafted the clause.
96 The High Court justices in the ATOF Case were careful to acknowledge that the context of a rule of a union registered as an "organisation" under the predecessors of the WR Act was not the same as that of a predecessor to s 149 itself of the WR Act. Nevertheless, it is possible to overstate the difference between the contexts. Both have as a central feature the adjustment of rights in relation to an industrial class of employees for the constitutional purposes of the prevention and settlement of interstate (and some other) industrial disputes. It is for organisations' aptitudes and capacities in relation to such a purpose that the elaborate statutory process of recognition and regulation of such organisations (which are otherwise merely private, consensual associations of persons) is and was undertaken by the WR Act and its predecessors. As noted above, an organisation's membership eligibility clause determines its capacity to obtain award coverage for or otherwise to represent the interests of an industrial class of employees: R v Dunlop Rubber Australia Limited Ex parte Federated Miscellaneous Workers' Union (1957) 97 CLR 71. The ATOF Case itself concerned whether an organisation might obtain an award in relation to a certain industrial class. Section 149(1)(d) concerns whether an award which has been obtained in relation to such a class may be set at nought by events put in train by their employer and/or external events or persons.
Section 149(1)(d) - a single, large conception
97 Finally, I would say that, although it has been convenient to segregate arguments and questions about "business", the successor terminology and (to a lesser but still appreciable extent) what is necessary to constitute an overriding order of the Commission, they are in truth but aspects of a single, overriding conception. That is that settlements by award-making, aimed at quelling present industrial disputes and the prevention of future disputes, should be kept effective, pending conscious variation or replacement of the award, regardless of mere changes in arrangements as to which legal entity might be the employer of an unchanged industrial class of employees, regardless of such matters as whether the original employer had other classes of employees as well and may have remained their employer, and regardless of whether the legal ownership of all of the plant and equipment used by the employees for their work and the other resources of the employer utilised in the undertaking should have likewise changed.
98 As Starke J said in George Hudson Ltd v Australian Timber Workers Union (1923) 32 CLR 413 at 455, over 75 years ago, of the constitutional power to enact legislation like s 149(1)(d),
"the constitutional power is not so weak, in my opinion, that it is limited to the settlement of an industrial disturbance between the actual participators therein. If so limited, the power would be practically ineffective: if industrial disturbances are to be settled or prevented, then the power must extend to the ever changing body of persons within the area of such disturbances" (emphasis added)
99 In the same case, Isaacs J (with whom Starke J "entirely" agreed, at 453), explaining why he considered the then Conciliation and Arbitration Act's forerunner of s 149(1)(d) should be given a liberal and purposive interpretation, said at 435-6:
"Parliament knew … that a successor to a business could not become so without knowing the statutory obligations of his predecessor to his employees. Parliament does not act in such a case without a comprehensive view of the situation. Let us suppose the settled rights of those employees, and the rights of competing employers under the same or a corresponding statutory obligation, and also the general rights of the public to a maintenance of industrial peace, to be placed by Parliament in one scale of justice, and the claims of the successor of the business to disregard individually the declared right of the employees to settled remuneration and other industrial conditions in the other scale: which can we suppose to weigh the heavier? In other words, applying the test as stated in Maxwell, on which side is justice? What case is made for restricting the application of the statute to the smallest ambit consistent with any possible construction of its words? To my mind the very opposite construction should be given to it as a remedial statute - as a statute which endeavours to replace strikes and lockouts with public examination and decision and to remove industrial discontent by abolishing industrial injustice. The effort may or may not be successful, it may or may not be attended with difficulty and error, its policy may be right or wrong - that is for the Legislature to decide; but, as long as it is the legislative will to maintain it, … it is, I apprehend, the function of this Court to construe it in the spirit of its manifest purpose."
100 In the present instance, there are, of course, unlikely to be "competing employers under the same or a corresponding statutory [ie statutorily authorised award] obligation". But the general need for interpretation of the statute in the way suggested by Isaacs and Starke JJ remains unaffected by that accidental circumstance. So much was recently re-affirmed by a Full Court of this Court in Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission & Ors [1999] FCA 847. Wilcox J and I adopted the words of Moore J in ACTEW Corporation Ltd v Media Entertainment and Arts Alliance (Industrial Relations Court, unreported, 7 August 1997) at 7:
"The first point to be made about the operation of s 149 is that it should be beneficially construed so that employers do not 'avoid the settled rights of employees': see George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413 at 435-436, per Isaacs J. Thus, in my opinion, whether there has been succession, transmission or assignment of a business should not be approached on some narrow basis."
The Court added (Moore J in this respect agreed):
"Only in compelling circumstances should the Court construe an award in such a way as to allow its frustration by transmission of the business."
101 The reference to possible "avoidance" should not, of course, be taken to exclude the equally important work of the provision in the manifold cases of changes made in the ordinary course of affairs of private persons and corporations and, as those affairs develop over time in accordance with prevailing political opinion, of governments and governmental entities.
I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.