Pitfield v Franki

High Court of Australia|1970-07-01|Before: Walsh JJ

The application before the Court is for prohibition or certiorari in respect of a decision of the Deputy Industrial Registrar and of its confirmation by Franki J. as Deputy President of the Commonwealth Conciliation and Arbitration Commission. That decision was that an application for the registration of an association called The United Firefighters' Union as an organization of employees under the Conciliation and Arbitration Act 1904 Cth, as amended, should be granted. The grounds upon which it is challenged are (a) that persons employed by the eight applicant Authorities in or in connexion with the prevention, suppression or extinguishment of fires are not employees in or in connexion with any industry or employees engaged in an industrial pursuit or pursuits within the meaning of s. 132 of the Conciliation and Arbitration Act 1904 Cth, as amended, (hereinafter called the Act) and the registration of the association which included such persons was not authorized by the Act; (b) the association was not at any material time an association of not less than one hundred employees in or in connexion with any industry or engaged in any industrial pursuits within the meaning of s. 132 and its registration was not authorized by the Act; and that (c) alternatively, in so far as the Act may purport to authorize registration of the association including within its membership persons employed in the prevention, suppression or extinguishment of fires employed by any of the applicant Authorities, it is beyond the power of the Parliament of the Commonwealth.

The employees of the Authorities, who are eligible for membership in the association, are described in its rules as those who are employed "in full time employment in or in connexion with the prevention, suppression or extinguishment of fires; (1) by civil brigades, boards or authorities in any rank, grade or classification of firefighter, fireman, special service firefighter, special service fireman, service firefighter, service fireman, radio-operator, hose maker and repairer, a member of a service maintenance section, regional fire officer, chief fire officer, deputy chief fire officer, fire officer, station officer or in any employment the duties of which are not materially different from the duties of one of these employments". The Authorities have other employees engaged in other sections but the present application is directly concerned only with those described in the rules, most of whom constitute the fire fighting sections of the employing organizations.

The evidence indicates that fire fighters employed by the Authorities perform duties other than those concerned directly with the fighting of outbreaks of fire. An affidavit sworn by the respondent, William Murray Webber, in these proceedings includes the following statements: "In addition to fighting fires and doing fire-fighting drill firefighters perform watch-room duties, polish floors in most of the station area, wash floors, toilets, baths and shower rooms, clean and polish brass fittings on appliances in and around the station, polish brass fittings on small gear and on hoses and couplings, wash, clean and polish the bodywork of appliances, clean engines, wash and nugget the tyres and wheels of vehicles and the rubber matting in and about the appliances, stoke, clean and tend heaters to provide hot water and heating, clean windows, hose down and sweep station yards, tend gardens, mow lawns, flush and sweep gutters surrounding the station, clean and wash walls, ceilings and light fittings in stations, test fire alarms, inspect and test hydrants, paint and fix indicators for the hydrants, wash and scrub the hose after fires or drill, repair and clean couplings, store and replace hoses and appliances, pump water from cellars and work in the salvage section when property is threatened by water. Salvage work is undertaken by members of the fire fighting staff, both officers and men. It involves recovery of property during a fire, covering it with waterproof material, oiling metal and machinery, pumping out cellars, removing water from various establishments and this service is also provided where flooding occurs due, for instance to burst water mains." Those statements are not disputed but on behalf of the present applicants there was evidence to the effect that the primary function of the Authorities is the taking of steps for the prevention and extinguishment of fires and the protection of life and property in case of fire. No doubt this is their principal function, which is imposed upon them by the Acts under which they are constituted. Their other activities are ancillary to that function. But that does not mean that one is not to look at the work in which the employees are engaged in its totality.

The respondents contend that the requirements of both par. (b) and par. (c) of s. 132 (1) of the Act are satisfied. I propose to consider, first, the question whether or not these employees are engaged in an industrial pursuit or pursuits within the meaning of par. (c).

In s. 4 (1) of the Act it is provided that "Industry" includes "any calling, service, employment, handicraft, or industrial occupation or avocation of employees". This is not to be construed as making it unnecessary, for the purposes of s. 132, that the employment should be in any way related to industry. It must appear that the pursuit is "industrial" and in deciding that question it appears that the nature of the employment should be examined mainly from the point of view of the employees rather than that of the employers. I do not think that these two aspects of the employment must always be considered in complete isolation from one another. But it is true, in my opinion, that an employee may be held to be engaged in an industrial pursuit, notwithstanding that the employer would not be regarded as carrying on an industry, if the work of the employee when considered from his point of view is adjudged to be industrial in its nature.

In several cases which have come before this Court the question was as to the meaning of the words industrial disputes in s. 51 (xxxv.) of the Constitution or as to the meaning of "industry" and "industrial" in legislation enacted pursuant to the power thereby conferred. The cases were not concerned directly with the construction of s. 132 (1) of the Act or of earlier similar provisions. But the pronouncements that have been made as to the nature and scope of the concept of "industry", to which the constitutional provision was intended to refer, and to which the legislative provisions construed with regard to the constitutional power should be taken to apply, are relevant in my opinion to the solution of the problem that is now before the Court. There have been conflicting opinions, assigning to the term "industry" a wide or a narrow connotation, but the preponderance of judicial opinion has been in favour of a wide construction. Although the sense in which it is to be interpreted has not been settled by an accepted judicial definition or formula, guides have been given which are I think of significance for present purposes.

In Ex parte Professional Engineers' Association [1] it was argued that the effect of the decisions in Federated State School Teachers' Association of Australia v. Victoria [2] and in Australian Insurance Staffs' Federation v. Accident Underwriters' Association [3] was that in all cases the activity of the employer impresses itself upon the occupation and "the definitive and key inquiries are what is the activity of the employer". The argument was not accepted. The State School Teachers' Case [2] was not regarded as establishing that the activity of the employer was decisive in determining the character of the employment. That case was regarded as recognizing that the duties of the employee and the work which he is engaged to perform may have to be considered in order to determine whether these are by nature industrial: see Professional Engineers' Case [4] .

(1959) 107 C.L.R., at p. 218. 2. (1929) 41 C.L.R. 569. 3. (1923) 33 C.L.R. 517. 4. (1929) 41 C.L.R. 569. 5. (1959) 107 C.L.R., at pp. 236-238, 258-259.

I must decide therefore whether the work which these employees perform should be adjudged to be in its nature industrial or "should be considered to stand apart from the wide conception of what is "industrial" " [1] . After much consideration I have come to the conclusion that it should be regarded as industrial and that, therefore, the employees should be regarded as being engaged in an industrial pursuit.

A substantial part of the work can be properly described in my opinion as being manual work. There is, of course, room for debate as to the ambit of that expression. But I do not think that it is only where the employment is an employment to do physical work alone without any exercise of knowledge or skill that the employment ought to be regarded as being of a typically industrial character. Most of the work with which this case is concerned is work in which physical effort predominates over mental effort. Whilst it would not be accurate to describe the work as a whole as being entirely manual in its character, it is more akin to manual work than it is to mental or intellectual work.

I am of opinion that the decision in Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation [2] is persuasive towards a conclusion in favour of the respondents in this case. I do not suggest that it compels that conclusion. But, in my opinion, there would be a degree of incongruity in denying an industrial character to the employment with which the present case is concerned whilst conceding it to the employment with which the Municipal Employees' Case [2] was concerned. There the Court dealt with a question whether there was power in the Commonwealth Court of Conciliation and Arbitration to determine a dispute between the employees' union and the corporations, so far as the dispute related to such operations of the municipal corporations as consisted of the making, maintenance, control and lighting of public streets or any of them. Clearly those operations would cover a wide range of activities carried out by employees of different classes as shown by the reference [3] to the tradesmen who were concerned in the claims made by the union. (See, also, Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia [4] .) Different reasons were given by the members of the Court who constituted the majority in the Municipal Employees' Case [2] for holding that the dispute was an industrial dispute. I do not wish to analyse those reasons or to say that all of them would now be accepted. But the decision has not been challenged and the result of it is that there is included in the sphere of industry work of a kind which might not generally be regarded as falling within the ordinary meaning of that term. As to the reasons given for the decision two observations should be made. One is that, although the case has subsequently been treated (see [1] ) as depending upon the work being of a manual character, that is not the ground upon which it was stated by their Honours to be based. The second is that, although the work in question included construction work which could perhaps be regarded as having a real connexion with the industrial world, it was not limited to that, but included the control and lighting of public streets. Yet it was regarded as coming "within the sphere of industrialism" [2] .

(1919) 26 C.L.R. 508. 2. (1919) 26 C.L.R. 508. 3. (1919) 26 C.L.R., at p. 589. 4. (1944) 68 C.L.R. 628. 5. (1919) 26 C.L.R. 508. 6. (1959) 107 C.L.R., at p. 236. 7. (1919) 26 C.L.R., at p. 555.

I am of opinion that the fact that the work of fire fighting is of a type which could be carried out, and indeed is carried out, by employees who work for employers who are directly engaged in industry tends to support the characterization of the employment as industrial.

Counsel for the respondents relied upon the relationship between the fire Authorities and the fire insurance companies, upon whom levies are made to provide funds for the operations of the Authorities. It was contended that the fire fighting services were, like the business of fire insurance itself, an adjunct of industry. This argument is pertinent perhaps to the question whether the Authorities carry on an industry rather than to an examination of the nature of the work of the employees. I do not regard it as providing a sufficient reason for affirming that the Authorities do carry on an industry. Nor do I think it provides in itself a sufficient ground for a positive conclusion that the employment, looked at from the point of view of the employees, is industrial in character. But the fact that insurance has been held in the Insurance Staffs' Case [3] to be within the sphere of industrialism is not without significance. It is an illustration of the acceptance by the Court of "the wide conception" of what is industrial, to which reference has already been made. It is not only in relation to the insurance of property and goods directly associated with the process of manufacture and other industrial processes that the insurance business is considered to be included in the concept of industry. A more general view than that has been taken. It was said [4] that banking and insurance "are indispensable portions of the general industrial mechanism". It may be urged that employment in fire fighting activities is outside the sphere of industrialism because those activities are directed in part to the protection of private property and also to other purposes not directly connected with the carrying on of industries. But, in my opinion, it would be too narrow a view to treat that objection as valid. If the employment ought otherwise to be regarded as industrial in character, I do not think it is deprived of that character by the circumstance that some of it is not related directly to the preservation of property which is actively engaged in an industrial process.

(1923) 33 C.L.R. 517. 2. (1923) 33 C.L.R., at p. 527.

In my opinion the State School Teachers' Case [1] does not require a decision in this case in favour of the applicants. The work of the teachers is very different from that of the employees with whom we are now concerned and a decision that the former work was not industrial in its nature has no real bearing on the question whether a similar finding should be made in this case. It was submitted for the applicants that the decision in the State School Teachers' Case [1] did not depend at all on any view that the nature of the work was such that it was not to be regarded as industrial. It was submitted that it was based simply on the view that whatever was the intrinsic nature of the work of the school teachers, it was impressed with the character of the State school system within which it was being performed and for that reason could not come within the concept of industry. That view of the State School Teachers' Case [1] might appear to be suggested by the language of a passage in the joint judgment therein of Knox C.J., Gavan Duffy and Starke JJ. After stating that "the occupation of the State school teachers is not industrial" their Honours proceeded immediately to say,

An occupation confined to teaching in the schools of the States has impressed upon it the character of the activity in which it is exercised. If carrying on a system of public education is not within the sphere of industrialism, those who confine their efforts to that activity cannot be engaged in an industry or in an industrial occupation or pursuit. [2] This might be taken to mean that the question whether the occupation of the teachers was industrial had to be answered solely by reference to the character of the system in which it was carried on, so that any judgment as to the intrinsic nature of the work itself was wholly irrelevant. But that is not the way in which the joint judgment or the decision in the case has been interpreted in the Professional Engineers' Case [3] . I have referred earlier to an argument advanced and rejected in that case. It was substantially the same as the argument as to the effect of the State School Teachers' Case [1] which has been put forward for the applicants here. 1. (1929) 41 C.L.R. 569. 2. (1929) 41 C.L.R. 569. 3. (1929) 41 C.L.R. 569. 4. (1929) 41 C.L.R., at pp. 575-576. 5. (1959) 107 C.L.R., at p. 208. 6. (1929) 41 C.L.R. 569.

For the reasons stated I am of the opinion that the requirements of par. (c) of s. 132 (1) of the Act were satisfied in this case. It is not necessary to consider whether those of par. (b) were also satisfied.

There is one further matter to which some reference was made at the hearing of this application to which I should refer. In the course of his argument in reply, counsel for the applicants submitted that the employees included officers whose work was not manual. Even if the ordinary employees were considered to be engaged in an industrial pursuit because they performed manual work, this finding could not apply to the senior officers. It was submitted, also, that if it appeared that any of the employees included in the eligibility clause was not engaged in an industrial pursuit this must make the registration invalid. The point made was not that the exclusion of the senior officers would bring the number of employees below the statutory number of "not less than one hundred". It was that the inclusion in the association of any persons who were not employees of the kind described in s. 132 (1) rendered the association ineligible for registration. Therefore, it was said, its registration was invalid.

In my opinion this is not a point on which the applicants are entitled to succeed. In the first place, I do not think it is within the scope of the grounds set out in the notice of the motion as those upon which the present application is based. In the second place, questions of fact are involved with which, in my opinion, this Court is not in a position to deal upon the material which is before it. The conclusion to which I have come that the employees in the fire fighting section and other relevant sections of the activities of the Authorities are engaged in an industrial pursuit is not based solely on the fact that a substantial part of the work is manual work, although it is certainly much influenced by that fact. In my opinion, the application which is now before the Court does not require or permit it to examine in detail the duties of each of the employees. The application must be dealt with more broadly than that. If it appears that most of the men employed as fire fighters or in associated duties can be described as engaged in an industrial pursuit, it would not be right to decide in this application that officers, who have been promoted from the ranks of the firefighters to positions in which they control and supervise the work of fire fighting and who form part of teams by which that work is performed, are not within the description. In my opinion the matter is one which is capable of receiving further consideration, if necessary, by the Conciliation and Arbitration Commission under powers conferred upon it by the Act, such as those conferred by s. 140. In the Professional Engineers' Case [1] it was recognized that possibly some of the employees might be performing duties of an administrative kind not connected in any way with any operations which could be described as industrial and that as to such employees there would be no jurisdiction to make an award. In my opinion it does not appear that the senior officers are engaged in work which is wholly unconnected with the operations which, in my opinion, have an industrial character. But I am not in a position to give any final decision on that question which, as I have indicated, turns upon factual considerations which have not been fully explored and on which the Court is not in a position to make definite findings. But however that may be, it does not appear to have been supposed in the Professional Engineers' Case [1] that if there were some employees engaged on work wholly unconnected with industrial operations who were, nevertheless, eligible to be members of the association, the consequence must be that the registration of the association was invalid. No such question was there considered. I am of opinion it is not appropriate on this application to consider and decide it.

(1959) 107 C.L.R. 208. 2. (1959) 107 C.L.R. 208.

In my opinion the application should be dismissed with costs.

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Walsh JJ. Pitfield v Franki [1970] HCA 37

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Cases Cited (1)