R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union

The facts of the case were as follows. On 1st March 1978 a number of motor mechanics, fitters and turners employed by the Melbourne City Council at its Green Street depot in North Melbourne went on strike in support of demands made by the union to the council. Later, one of those employees, one Frank Richard Kane, who was a member of the union, wished to resume his work notwithstanding that the strike was continuing. On 6th March 1978 he resigned from the union and resumed his work with the council. However, he was stood down on 8th March 1978 and his employment with the council was terminated on 30th March 1978. The informations under s. 188 (1) (a) alleged that on two occasions the union advised, encouraged or incited the council to dismiss Mr. Kane in contravention of s. 5 (1) (aa) of the Act. The information under s. 188 (1) (b) alleged that the union threatened to take industrial action against the council with the intent to coerce the council to dismiss Mr. Kane in contravention of s. 5 (1) (aa). The final information, under s. 188 (1) (c), alleged that the union took action having the effect, directly or indirectly, of prejudicing Mr. Kane to join in industrial action. The particulars of this final charge revealed that the union, by its officers, shop stewards, and a group of its members, formed a picket line outside the council's depot at Green Street, thereby hindering Mr. Kane's access to and from the said premises and impeding his ability to work there, with the result that Mr. Kane was stood down from his employment by the council.

It appears to be common ground that the conditions of the employment of the employees in question were governed by an award made under the Act, although there appears to be a conflict as to precisely which awards were applicable. The union asserts that the matters of dispute which led to the strike were not within the ambit of the dispute which was settled by the relevant award and that the dispute between the employees and the council was not an industrial dispute that either extended or was likely to extend beyond the limits of the State of Victoria. The informant, on the other hand, asserts that some, if not all, of the matters in dispute were within the ambit of a relevant dispute and, therefore, formed part of an industrial dispute extending beyond the limits of that State.

The provisions of the Act which are now in question were inserted in the Act by the Conciliation and Arbitration Amendment Act (No. 3) 1977 Cth. Section 188 (1) provides, inter alia, as follows:

(a) shall not advise, encourage or incite an employer to take action in relation to a person that would, if taken, be a contravention of paragraph (aa) of sub-section (1), or paragraph (aa) of sub-section (1A), of section 5;

(b) shall not take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take action in relation to a person that would, if taken, be a contravention of paragraph (aa) of sub-section (1), or paragraph (aa) of sub-section (1A), of section 5;

(c) shall not take, or threaten to take, any action having the effect, directly or indirectly, of prejudicing a person in his employment with the intent to coerce the person to join in industrial action;

Section 188 (4) provides as follows: For the purposes of this section, an action taken by -

(a) the committee of management of an organization;

(b) the committee of management of a branch of an organization;

(c) an officer, employee or agent of an organization;

(e) a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organization,

shall be deemed to have been taken by the organization. The introductory words of s. 5 (1) of the Act are as follows: An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee - . Then follow a number of paragraphs including par. (aa) which reads as follows:

(aa) has refused or failed to join in industrial action.

The expression "industrial action" is defined in s. 4 (1) as follows:

(a) the performance of work (being work the terms and conditions of which are prescribed, wholly or partly, by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth) in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to such work, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work, or on acceptance or offering for work, in accordance with the terms and conditions prescribed by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth; or

(c) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work,

but does not include the performance of work in a manner, the adoption of a practice, ban, limitation or restriction, or a failure or refusal, that is authorized by the employer of the persons concerned.

These statutory provisions can only be upheld as valid if they are within the powers conferred on the Parliament by s. 51 (xxxv.) and (xxxix.) of the Constitution. Since the former power "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" (Federated Iron-Workers' Association of Australia v. The Commonwealth [1] ), it seems unnecessary to invoke the power conferred by s. 51 (xxxix.), the scope of which does not fall for consideration in the present case. Mr. Laurie, on behalf of the union, took as the starting point of his argument the proposition that the power conferred by s. 51 (xxxv.), to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State", does not enable the Parliament to legislate directly to settle disputes. He referred to a line of cases which includes Stemp v. Australian Glass Manufacturers Co. Ltd. [2] ; Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [3] and Walsh v. Sainsbury [4] , and submitted that although it may be incidental to the subject matter of the power to prohibit a strike or lockout in relation to an industrial dispute extending beyond a State or an industrial dispute settled by an award made by a federal tribunal, the Parliament cannot legislate to prevent strikes or other industrial action, or to forbid an employer to dismiss an employee for the reason that he has refused or failed to join in any industrial action, except in relation to an industrial dispute extending (or threatening to extend) beyond the limits of one State. Then he submitted that s. 188 went beyond the scope of the power, because the definition of industrial action in s. 4, which must be read into s. 188 either directly (because of the use of that expression in s. 188 (1) (c)) or indirectly (by way of the reference to s. 5 (1) (aa) in s. 188 (1) (a) and (b)), gives the section an operation which is not confined to interstate disputes. Although the grounds taken in the order nisi indicated that it was also intended to challenge the validity of s. 188 (4), that challenge was abandoned.

1. (1951) 84 C.L.R. 265, at p. 277. 2. (1917) 23 C.L.R. 226. 3. (1925) 35 C.L.R. 449. 4. (1925) 36 C.L.R. 464.

Mr. Laurie submitted that all three paragraphs of the definition of "industrial action" are too wide. Paragraph (a) applies only to work the terms or conditions of which are prescribed wholly or partly by an award of the Conciliation and Arbitration Commission or some other Commonwealth tribunal or by or under a Commonwealth law. It refers to the performance of such work in a manner different from that in which it is customarily performed, or to the adoption of a practice in relation to which work, the result of which is a restriction or limitation on or a delay in, the performance of the work. It was said that in this respect it applies to matters other than those settled by an award and would for example cover the case in which employees departed from a dangerous practice which was not enjoined by the award. However, it is clear that the practical operation of an award may be defeated if the persons governed by it either depart from the customary manner of performing the work, or adopt a new practice in relation to the work, with the result that the performance of the work is restricted, limited or delayed. The reasoning of Dixon C.J. in Australian Boot Trade Employees' Federation v. The Commonwealth [5] strongly supports the view, which I accept, that it was competent for the legislature to enact the provisions of s. 188 in conjunction with par. (a) of the definition of industrial action "as a means of preventing officials of an organization contributing to the indirect impairment of the settlement made of the dispute": Australian Boot Trade Employees' Federation v. The Commonwealth [5] . In so far as the definition refers to work the terms and conditions of which are prescribed by or under a law of the Commonwealth, rather than by an award, the same reasoning applies; assuming the law to be valid, the provisions now in question help to ensure its efficacy. Paragraph (b) of the definition is in its own terms limited to work the terms and conditions of which have been prescribed by an award of the Commission or other Commonwealth tribunal or by or under the law of the Commonwealth but it refers to a ban, limitation or restriction on acceptance or offering for such work, as well as to a ban, limitation or restriction on the performance of such work. Although it includes action designed to prevent someone not yet employed from accepting employment, it is closely linked to a federal award or to Commonwealth law. The reasoning which I have accepted in relation to par. (a) applies in my opinion with even greater force to par. (b), the provisions of which, as applied by s. 188 (1), are also valid.

1. (1954) 90 C.L.R. 24, at p. 44. 2. (1954) 90 C.L.R. 24, at p. 44.

However, par. (c) of the definition cannot be supported in the same way. It is not expressly limited to work the terms and conditions of which are prescribed by a federal award or under a law of the Commonwealth, and with all respect I cannot accept the submission of the Solicitor-General that a limitation of that kind can be implied in it. Unless the paragraph can be read down as a result of the operation of s. 15A of the Acts Interpretation Act 1901 Cth, as amended, the provisions of s. 5 (1) (aa), read in conjunction with par. (c) of the definition, would forbid an employer to dismiss an employee because he had refused to join in industrial action which was quite unconnected with any interstate dispute or any federal award.

However, in the present case, it is unnecessary to consider the effect of s. 5 (1) (aa) and the definition of industrial action read separately from s. 188. It was established early in the history of federation, by the Jumbunna Case [6] , that it is incidental to conciliation and arbitration for the prevention and settlement of interstate industrial disputes to provide for the registration and incorporation of employees or employers. It followed from that decision, and is settled, that the Parliament has power to regulate the affairs of industrial organizations registered under the Act: see for example Federated Iron Workers' Association of Australia v. The Commonwealth [7] and Australian Boot Trade Employees' Federation v. The Commonwealth [8] . As Fullagar J. said in Williams v. Hursey [9] : "But it has been accepted ever since 1908 that the Commonwealth may create these corporations, and, if it can create them, it must be able to define their powers." In Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [10] both Isaacs J. and Starke J. indicated that the power to regulate the affairs of industrial organizations is a wide one. Isaacs J. said [11] :

The creation and equipment of representative organizations both of employers and employees is an incident to the power in sec. 51 (xxxv.) of the Constitution. They are instruments for the more effective exercise of the power (Jumbunna Case). Parliament may adopt them as part of its mechanism. That mechanism can be made and unmade at the will of Parliament. It may be moulded, refashioned, or abolished in any manner indicated. Starke J. said [12] : But if the Parliament has authority under the arbitration power to permit the registration and incorporation of organizations, then that power necessarily extends to the control and regulation of those organizations, and to the cancellation or suspension of the registration or incorporation in such manner and by such means as Parliament provides. These passages were cited with approval in Reg v. Spicer; Ex parte Australian Builders' Labourers' Federation [13] . 1. (1908) 6 C.L.R. 309. 2. (1951) 84 C.L.R., at pp. 277-279. 3. (1954) 90 C.L.R., at p. 40. 4. (1959) 103 C.L.R. 30, at p. 68. 5. (1925) 36 C.L.R. 442. 6. (1925) 36 C.L.R., at p. 453. 7. (1925) 36 C.L.R., at p. 463. 8. (1957) 100 C.L.R. 277, at pp. 288-289, 294-295, 309.

The power to regulate the activities of an organization registered under the Act is not limited to those activities which relate to an existing or threatened interstate dispute or to work done under an existing federal award. Such an organization is not brought into being by the Act to do whatever it wishes. It can only be created to further the purpose stated in s. 51 (xxxv.). The Parliament can validly prevent organizations formed for that purpose from engaging in activities alien to or unconnected with it. It is neither necessary nor desirable to attempt to define the limits (if any) to the power of the Parliament to regulate organizations of this kind. Clearly however the Parliament has power to prevent them from engaging in industrial activity which does not conduce to the prevention and settlement of industrial disputes by means of conciliation and arbitration. It can, for example, prevent them from fomenting industrial strife, even though no interstate dispute is threatened or pending and no federal award is in question. It clearly has power to prevent them from engaging in activities of the kind described in s. 188 (1).

In my opinion it is not necessary to the validity of s. 188 of the Act that s. 5 (1) (aa) read in the light of the definition of "industrial action" should be valid. The action referred to in s. 188 (1) (a) and (b) is action which, if taken, would amount to the contravention of s. 5 (1) (aa). The action is described by reference to s. 5 (1) (aa), and the description is clear whether or not that section is valid. I can discern no indication of any intention to make the efficacy of s. 188 dependent on the validity of s. 5 (1) (aa) standing alone. It is beyond doubt that if the Parliament had transcribed in full the provisions of s. 5 (1) (aa) and of the definition of industrial action into s. 188, the latter section would be valid. What Parliament could have done in that way it can do with equal validity by reference.

For these reasons the challenge to the validity of s. 188, and of s. 5 (1) (aa) and the definition of "industrial action" in so far as they are incorporated by reference in that section, must fail. The union was therefore charged with offences known to the law. It follows from what I have said that it is not material to consider whether the dispute in the course of which the alleged offences were said to have been committed was an interstate dispute or whether the work which the striking workmen did not perform was work covered by a federal award. If those questions had been material they would not have gone to jurisdiction but would have fallen for determination in the Federal Court.

I would discharge the order nisi for prohibition, and would remit the proceedings to the Federal Court with a direction that it proceed to hear and determine the matters commenced by the informations.

I have had the advantage of reading the reasons for judgment of Wilson J. I am in complete agreement with them and with the order which is there proposed.

I am in agreement with the reasons for judgment prepared by Gibbs J.

I would therefore discharge the order nisi for prohibition, and would remit the proceedings to the Federal Court with a direction that it proceed to hear and determine the matters commenced by the informations.

The applicant union sought to prohibit the Chief Judge and other judges of the Federal Court from proceeding with the hearing of four informations against the union under s. 188 of the Conciliation and Arbitration Act 1904 Cth, as amended, ("the Act") on the ground that the provisions of s. 188 (1) (a) (b) and (c) (and other provisions of the Act which must be read with it) are unconstitutional. The other provisions are that part of s. 5 (1), which defines "industrial action", and s. 5 (1) (aa) and s. 5 (1A) (aa). These were all inserted by the Conciliation and Arbitration Amendment Act (No. 3) 1977.

The application for prohibition faced the difficulty that, even if the challenged provisions were invalid, this may not be an appropriate case for prohibition. On the Solicitor-General's application and with the union's counsel's agreement, the Court (by a majority) removed the proceedings from the Federal Court into this Court to determine only the questions of constitutionality. No evidence has been taken. The consequence is that the questions are being considered in an abstract and hypothetical atmosphere. The Court is being asked to rule at large on the validity of sections, although not a fraction of the background material necessary for a full understanding of the operation of the sections is before the Court.

Presumption of Validity. Like provisions of other Acts or State Acts, where the challenge to validity is not based on a constitutional guarantee or prohibition, the challenged sections are presumed to be valid.

Constitutional bases for the legislation. The case was argued on the basis that the only source of support for the provisions is s. 51 par. (xxxv.) and perhaps par. (xxxix.) of the Constitution. Apart from the power over territories (s. 122) and commonwealth places (s. 52), other powers especially the trade and commerce power (s. 51 (i.)) and (s. 51 (xx.)) may provide some foundation for the legislation.

The challenged statutory provisions form a mosaic of interlocking sections aimed at disciplining organizations their officers and members.

(a) shall not advise, encourage or incite an employer to take action in relation to a person that would, if taken, be a contravention of paragraph (aa) of sub-section (1), or paragraph (aa) of sub-section (1A), of section 5;

(b) shall not take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take action in relation to a person that would, if taken, be a contravention of paragraph (aa) of sub-section (1), or paragraph (aa) of sub-section (1A), of section 5;

(c) shall not take, or threaten to take, any action having the effect, directly or indirectly of prejudicing a person in his employment with the intent to coerce the person to join in industrial action.

Paragraphs (a) and (b) of s. 188 (1) refer to s. 5 (1) (aa) and s. 5 (1A) (aa) which provide:

(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee -

(aa) has refused or failed to join in industrial action

(1A) An employer shall not threaten to dismiss an employee, or to injure him in his employment, or to alter his position to his prejudice -

(aa) with the intent to coerce the employee to join in industrial action

Section 188 (1) (b) and (c) also refers to industrial action. The operation of the provisions of s. 188 (1) (a) (b) and (c) thus depends upon those provisions of s. 5 and on the definition of industrial action.

Industrial action is defined in s. 4 as (except where otherwise clearly intended):

(a) the performance of work (being work the terms and conditions of which are prescribed, wholly or partly, by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth) in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to such work, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work, or on acceptance or offering for work, in accordance with the terms and conditions prescribed by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth; or

(c) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work,

but does not include the performance of work in a manner, the adoption of a practice, ban, limitation or restriction, or a failure or refusal, that is authorized by the employer of the persons concerned;

The prosecutor contended that the provisions are invalid because they may operate in the absence of any existing industrial dispute extending beyond one State; this is erroneous, it has long been established if the provisions are incidental to conciliation and arbitration, it is not necessary that such an industrial dispute exist (see the Jumbunna Case [14] ).

Employment is a relationship of contract. Awards (determinations or orders) are generally prescriptions of minimum wages and conditions. Under the prevailing doctrines, the employment continues to be governed by contract, modified by law if the contractual provisions fall below the minima prescribed by the award. See Amalgamated Collieries of W.A. Ltd. v. True [15] . The award governs only in the sense that it prevents employees from having to accept less than the minimal conditions prescribed by it (see Sykes and Glasbeek, Labour Law in Australia (1972), p. 586). It is consistent with such an award for an employee to bargain for and receive over award wages and conditions. (See Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [16] ; Kilminster v. Sun Newspapers Ltd. [17] and Boilermakers' Society of Australia, Queensland Branch, Union of Employees v. Brisbane Welding Works Pty. Ltd. [18] , per Gibbs J.). Consistently with this a member or members of an organization may bargain for higher than the minimal benefits under an award. The position in the United States appears to be different in that, in general, collective bargaining agreements are not for "minimum" conditions and will preclude individual contracts on the matters dealt with by the agreements (SeeJ. I. Case Co. v. National Labor Relations Board [19] ; McCallum and Tracey, Cases and Materials on Industrial Law, p. 201).

1. (1938) 59 C.L.R. 417; 62 C.L.R. 451 (P.C.). 2. (1920) 28 C.L.R. 1, at p. 12. 3. (1931) 46 C.L.R. 284. 4. [1965] Qd R. 598, at pp. 613-618. 5. (1944) 321 U.S. 332 [88 Law Ed. 762].

If s. 188 (1) (a) (b) and (c) prohibited the organization from advising (egc.) action which would be in breach of an award, this would no doubt be valid under the doctrine relating to protection of an award. (See Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association [20] .) Unlike the provisions dealt with in the Seamen's Case, which provided for protection of award provisions, the legislation in question goes beyond protecting award provisions.

Section 188 (1) (a). Sub-section (1) (a) read with sub-ss 5 (1) (aa) and 5 (1A) to which it refers, in brief prohibits advice to an employer to dismiss (etc.) an employee who has refused to join in industrial action or threaten to dismiss one with intent to coerce him to join in industrial action. The thrust of the prohibition is to do what federal awards do not in general do. In relation to organizations it operates to establish a status quo (except where the employer authorizes a departure) in relation to matters not prescribed by the award. The inclusion in the definition of industrial action of the reference in (a) to "the performance of work (being work the terms and conditions of which are prescribed wholly or partly, by an award etc) in a manner different from that in which it is customarily performed or the adoption of a practice in relation to such work, the result of which is a restriction or limitation on, or a delay in the performance of the work", extends the operation of the provisions to a performance of work in a manner entirely consistent with the award (including any express or implied) provisions about customary performance or practices. (See Boilermakers' Society Case [21] .) An award may expressly (as many do) or impliedly incorporate "existing custom and practices"; in which case the observance of these is observance of the award. In Australian Boot Trade Employees' Federation v. The Commonwealth [22] ("Boot Trades Case") in dealing with somewhat similar provisions Dixon C.J. stated that "To desert a custom or adopt a practice spells a detraction from the practical operation of the award contributing to the indirect impairment of the settlement made of the dispute."

1. [1965] Qd R., at pp. 612-613. 2. (1954) 90 C.L.R. 24, at p. 44.

Where the award impliedly requires customary performance and existing practices, it is clear that departure from these is inconsistent with the award. To go further and legislatively supplement the award is not to protect the award, but to legislate what the arbitral authorities could have, but have not, awarded. An obvious example is in the area of safety and health. Suppose at a factory in one State, certain safety measures (not covered by the award) were not observed by employees, for example, because of speed-up methods "customarily performed" in the factory. Under prevailing theories it may not be possible to invoke the authority of the Australian Conciliation and Arbitration Commission to deal with any dispute over the conditions (because the work is in one State only). The legislative provision inhibiting the organization from taking action (referred to in s. 188 (1) (a) (b) or (c)) do not protect the award, nor the processes of conciliation and arbitration. It is wrong to assume (in the absence of any expression or implication in the award) that "performance in a manner different from that in which it is customarily performed or the adoption of a practice in relation to such work, the result of which is a restriction or limitation on or a delay in the performance of the work" is inconsistent with the award. If the terms and conditions of work are wholly prescribed by the award, it is difficult to see how the addition of the references to customary performance and adoption of practices is justified. If the departure from customary performance, or the adoption of the practice, is inconsistent with the award, the words are surplusage. If the performance or adoption is consistent with the award provision (which are the whole terms and conditions) then this amounts to a legislative attempt to modify the terms, or at least to inhibit action of the organization directed to achieve ends in no way inconsistent with the award. The same applies if the terms and conditions of work are only partly prescribed by the award. Therefore the definition of industrial action causes 188 (1) (a) to travel beyond protection of the award or any operation of conciliation or arbitration.

The effect of clause (b) in the definition of industrial action is that in s. 188 (1) (a) provides that an organisation shall not advise an employer to take action in relation to an employee, who has refused to join in bans, limitations or restrictions on the performance of work or on acceptance or offering for work in accordance with the terms and conditions of an award. If this is a legislative provision protective of an award, and does not legislatively attempt to alter award wages or conditions or to deal with non-award wages or conditions, it is within the conciliation and arbitration power. It has long been accepted that the Parliament may provide for arbitral bodies to insert a bans clause (Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association [23] ; Reg. v. Spicer; Ex parte Seamen's Union of Australia [24] ). The presence of such a bans clause may have a practical tendency to convert a minimum award into a maximum one. This is within the scope of the authority of the arbitral tribunals. It is another question whether it is within the scope of the conciliation and arbitration power for Parliament to apply a bans clause directly to a minimum award so as to convert it, or tend to convert it, into a maximum one.

1. (1936) 54 C.L.R. 626. 2. (1957) 96 C.L.R. 341.

In performing, accepting or offering for work it is in accordance with a "minimum" award for an employee or prospective employee to insist on more than the minimal wages and conditions ensured by the awards. It is of course in accordance with the award for him to work or offer to work at the minimal wages and conditions. The statutory mosaic operates so that it becomes an offence for an organization to advise an employer to dismiss an employee for not joining a ban on taking work in accordance with the award, for example, if the employee desires to accept the minimal conditions. I am not satisfied that it is beyond the province of Parliament to prohibit the organization attempting to dissuade or prevent employees accepting the minimal terms and conditions.

Paragraph (c) of the definition of industrial action serves to bring the penalty provisions into operation apart altogether from any federal award and apart altogether from any protection of conciliation and arbitration, so that these do not have any foundation in the power in s. 51 (xxxv.). Therefore s. 188 (1) (a) is invalid in so far as its operation applies to par. (c) of the definition of industrial action. In regard to all the challenged provisions but especially in support of this aspect, the Attorney-General of Australia intervening by the Solicitor-General contended that the Parliament had virtually unlimited legislative powers with respect to organizations. This also should, in my opinion, be rejected. I would mean, for example, that Parliament could legislatively control the contents of logs of claims, and of the submissions to arbitral tribunals by organizations, and, by similar reasoning those of unorganized employees and employers. If Parliament can, under the conciliation and arbitration power, effectively prevent organizations pursuing safety or other industrial issues (which have not been and are not being dealt with by conciliation and arbitration), then, by logical extension, it can determine the permissible content of wage claims, and generally what can be done by organizations (and also by logical extension, of unorganized persons in industry) and therefore by the limits it imposes attempt to determine terms and conditions of work. Again the logical consequence of this contention is that under the conciliation and arbitration power Parliament could prohibit an organization (or unorganized persons) from initiating or engaging in an industrial dispute extending beyond the limits of one State. The departure from the constitutional limitation is obvious; the limitation in s. 51 (xxxv.) introduced by the words "conciliation and arbitration" would be read out of the Constitution.

Section 188 (1) (b) and (c). The above considerations apply to s. 188 (1) (b) and (c), with the same effect as on s. 188 (1) (a), so that they are invalid in so far as they apply to pars. (a) and (c) of definition of industrial action.

Sections 5 (1) (aa) and 5 (1A) (aa). It follows from the above that both these are invalid in so far as they relate to industrial action contained in pars. (a) and (c) of the definition of industrial action. The invalid provisions in endeavouring to penalise an employer for taking action against an employee for conduct unconnected with conciliation or arbitration, have travelled outside the scope of s. 51 (xxxv.).

Section 188 (4). Although, the validity of s. 188 (4) was raised in the claim, counsel for the prosecutor did not pursue it with any argument. Because of this I state my own opinion tentatively and do so because 188 (4) has an intimate connexion with the provisions whose validity was argued.

Part at least of s. 188 (4) seems to be beyond power. It is that which provides:

For the purposes of this section, an action taken by -

shall be deemed to have been taken by the organization.

It is one thing by statute to provide that when fact A is proved, fact B is presumed. Such statutory presumptions are common and find a legislative source within incidental powers included with specific legislative power in the Constitution (s. 51 or s. 52) or come within the general incidental legislative power (s. 51 (xxxix.)), provided there is a rational basis for the presumption. It is another thing when there is no rational basis for the presumption. It is still another when what is provided is that proof of fact A is deemed to be proof of fact B, so that the party against whom fact B is alleged is prevented from attempting to disprove it, especially if there is no rational basis for presuming the existence of B from the existence of A.

It can rationally be presumed that action (including industrial action of the kind referred to in this Act) of a committee of management, or a branch committee of management, or of an officer, employee or agent is the action of an organization of employees, but it is a notorious fact of industrial life that it cannot rationally be presumed that action of a mere member or group of mere members is the action of the organization. This would be so even if an organization could control who becomes and remains its members, but it cannot (see s. 144 of the Act). Also members of organizations are often members of other organizations, and of other industrial and non-industrial bodies which may take industrial action (as defined in the Act). Hundreds of thousands of members of organizations also belong to trade or industrial unions registered under State Acts, for example Trade Union Act, 1881 N.S.W., Industrial Arbitration Act, 1912 N.S.W.. (See Moore v. Doyle [25] ; Report of the Committee of Inquiry on Co-ordinated Industrial Organization.)

The effect of s. 188 (4) (d) is that if a group of members of an organization took industrial action of their own initiative or because of the decision of a state trade union or other body of which they were members, this would be deemed to be the action of the organization, exposing it to heavy penalties. In my opinion it is not incidental to the conciliation and arbitration power (par. xxxv.) or to the general incidental power (par. xxxix.) of s. 51 of the Constitution to produce such a result. It resembles the attempt in the Communist Party Dissolution legislation to put the courts into the position where persons were to be penalised on the basis of legislative or executive opinions unexaminable in the courts (see Australian Communist Party v. The Commonwealth [26] ). It does not seem consistent with the judicial power conferred by the Constitution that the courts be required to adjudge persons guilty of offences, not upon proof of facts from which a rational conclusion of guilt follows, but on the basis of a legislative or executive conclusion (not based on a rational presumption) which is unexaminable judicially. It would be just as if upon proof that a group of mere shareholders of a public company had taken some action, a court were required to treat this as the companies' action. There is a difference in substance (not mere form) between a law which makes it an offence by an organization if some of its members take certain action, and a law which makes it an offence if an organization itself takes certain action (but it is deemed to have taken the action, if amongst other things, some of its members have taken the action).

Similar considerations apply to s. 188 (4) (e) under which action taken by "a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organizations" is deemed to have been taken by the organization. As I read it, this means a member who need not be an officer, employee or agent of the organization, and performs the function on behalf of himself and some other members, without authority or ostensible authority of the organization. This provision so read also appears invalid.

A sufficient rational basis exists to sustain a presumption that action of a branch committee of management, an officer, employee or agent has been taken by an organization to justify such a legislative presumption as "a law with respect to" the subject matter of pars (xxxv.) or (xxxix.) of s. 51 of the Constitution, although the observations of Dixon C.J. in the Boot Trade Case [27] suggest that this may not be so in the case of an employee. To go beyond presumption and to deem the action of such bodies or persons to have been taken by the organization, and thus to make the organization liable in judicial proceedings in which it is prevented from disproving the allegation that it took the action, in my opinion also appears to be outside the scope of the pars. (xxxv.) and (xxxix.) of s. 51, and inconsistent with the Judicature Chapter, of the Constitution. However, in view of the prosecutor's stance, I do not reach any final conclusion on the validity of these parts of s. 188 (4).

It follows that s. 188 (1) (a) (b) and (c) and ss. 5 (1) (aa) and 5 (1A) (aa) in so far as they apply in circumstances dependent only on the conciliation and arbitration power are invalid, in relation to pars. (a) and (c) of the definition of industrial action. I state the invalidity in this qualified way because s. 188 (1) (a) (b) and (c) would have wide application within the reach of other powers such as the trade and commerce, Commonwealth places, and territories.

I find no satisfactory way to read down the provisions in accordance with s. 15A of the Acts Interpretation Act 1901 Cth, as amended.

The order nisi for prohibition should be discharged, and the informations remitted to the Federal Court of Australia.

I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I agree with his reasons and with the order which he proposes.

The Amalgamated Metalworkers' and Shipwrights' Union ("the union") was charged with four offences under s. 188 (1) of the Conciliation and Arbitration Act 1904 Cth ("the Act"). The prosecutions were brought by the informant in his capacity as Deputy Director of the Industrial Relations Bureau. Two of the informations alleged a breach of s. 188 (1) (a), the third a breach of s. 188 (1) (b), and the fourth a breach of s. 188 (1) (c). To understand these provisions it is necessary to have regard to the definition of industrial action in s. 4 (1) of the Act, and to the provisions of s. 5 (1) (aa), and s. 5 (1A) (aa). All the relevant provisions were inserted in the Act by the Conciliation and Arbitration Amendment Act (No. 3) 1977. They are set out in the reasons for judgment of Gibbs J. and it is unnecessary for me to repeat them in their entirety.

Mr. Laurie's central submission on behalf of the union was that the provisions of s. 188 are beyond the legislative competence of the Commonwealth Parliament, and are therefore invalid. To establish this he took up the references in pars. (a) and (b) of s. 188 (1) to "paragraph (aa) of sub-section (1), or paragraph (aa) of sub-section (1A), of section 5". He argued that s. 5 of the Act is invalid because the Parliament has no power to legislate over employers as such and that the attempt to incorporate provisions from s. 5 into s. 188 also invalidates s. 188. He also relied on submissions directed to each of the three paragraphs of the definition of industrial action in s. 4 (1) of the Act to show that each of them is beyond power and that therefore the provisions of s. 188 which rely upon this definition are also beyond power.

There is a short answer, for the purposes of this case, to the argument based on the validity of s. 5. It is that, on its proper construction, s. 188 stands quite independently of s. 5. If it had wished to do so, Parliament could have set out in full in pars. (a) and (b) of s. 188 (1) the consequences of the action advised, encouraged, incited or coerced which would satisfy the description of "a contravention of paragraph (aa) of sub-section (1), or paragraph (aa) of sub-section (1A), of section 5". It has, however, chosen to describe one element of each of the offences created by s. 188 (1) (a) and (b) by reference to s. 5. The validity of these offences will fall to be determined according to their terms irrespective of the validity or otherwise of s. 5. I turn now to the arguments concerning the definition of industrial action in s. 4 of the Act.

"Industrial action" is a concept which is at the heart of s. 188 (1). Pars. (a) and (b) of the sub-section incorporate the term by reference to s. 5 and pars. (c), (d) and (e) refer to it directly. It is only action which is taken or threatened in relation to "industrial action" that is prohibited by s. 188 (1).

Section 4 (1) defines "Industrial action" to mean three different types of action or inaction. Mr. Laurie argued on behalf of the union that each limb of the definition, when set in the context of s. 188, travels beyond power, and consequently carries the several relevant provisions of s. 188 beyond power. It may assist the understanding of the union's argument to set out again the terms of the definition:

(a) the performance of work (being work the terms and conditions of which are prescribed, wholly or partly, by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth) in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to such work, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work, or on acceptance or offering for work, in accordance with the terms and conditions prescribed by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth; or

(c) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work,

but does not include the performance of work in a manner, the adoption of a practice, ban, limitation or restriction, or a failure or refusal, that is authorized by the employer of the persons concerned;

In the discussion which follows, the word "award" refers to the comprehensive phrase "an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth".

In relation to par. (a) of the definition, Mr. Laurie submitted that the paragraph could include activities which have no connexion with an existing award and are not part of an industrial dispute extending beyond the limits of one State. Although the paragraph refers to work, the terms and conditions of which are prescribed, wholly or partly, by an award, it includes as "industrial action" the performance of such work in a manner different from that in which it is customarily performed or the adoption of a practice in relation to that work. In effect it was submitted that a departure from custom or the adoption of a practice might fall outside the ambit of the relevant award and so have no connexion with any head of legislative power.

In relation to par. (b), it was said that the paragraph is invalid because the Parliament cannot legislate directly, by means of a bans clause, to protect the terms and conditions of an award. It was submitted that the legislative power with respect to " conciliation and arbitration for the prevention and settlement of industrial disputes " permits the enactment of a bans clause only by the arbitral authority in the course of the arbitral process.

Finally, it was said that par. (c) is too wide because the reference to "work" in this paragraph is not limited to work prescribed by an award, nor is it set in the context of a dispute extending beyond one State.

In considering these arguments, it is imperative to bear in mind the precise context in which the definition of "industrial action" falls to be determined in this case. Section 188 is directed to the control of an organisation registered pursuant to the Act. To be more precise, it is directed to prohibiting such an organization from taking action which may have the effect of coercing an employee to join in "industrial action".

There is a close similarity between the provisions that fall for consideration in this case and those which were examined in Australian Boot Trade Employees' Federation v. The Commonwealth [28] . In that case the plaintiffs sought a declaration that s. 78 of the Act, as it then stood, was invalid. So far as relevant, that section provided as follows:

(1) An officer, servant or agent, or a member of a committee, of an organization or branch of an organization shall not, during the currency of an award -

(a) advise, encourage or incite a member of an organization which is bound by the award to refrain from, or prevent or hinder such a member from -

(iii) offering for work, or working, in accordance with the award or with an employer who is bound by the award;

(b) advise, encourage or incite such a member to make default in compliance with the award;

(c) prevent or hinder such a member from complying with the award;

(d) advise, encourage or incite such a member to retard, obstruct or limit the progress of work to which the award applies by "go slow" methods; or

(i) to perform work to which the award applies in a manner different from that customarily applicable to that work; or

(ii) to adopt a practice in relation to that work, where the result would be a limitation or restriction of output or production or a tendency to limit or restrict output or production.

(3) In a prosecution for a contravention of this section it is a defence to prove that there were reasonable grounds for the conduct charged, being grounds -

(a) unrelated to the terms and conditions of employment prescribed by the award; or

(b) arising out of a failure or proposed failure by an employer to observe the award.

The outcome of the case was perhaps unsatisfactory in that three members of the Court (Webb, Kitto and Taylor JJ.) considered that in the exercise of its discretion the Court ought not entertain the action, as no prosecution under the section was pending or threatened. However, Dixon C.J., with whose judgment Fullagar J. agreed, examined the section in detail and concluded that, subject to reservations concerning the words "agent" and "servant" and the phrase "or with an employer who is bound by the award", the section was valid.

In his judgment, Dixon C.J. referred to the course of judicial authority on the power incidental to s. 51 (xxxv.). He said [29] :

In considering what is incidental to that legislative power with its notorious peculiarities we must be guided less by our own a-priori notions of what might satisfy a true application of principle than by the very definite course of authority in this Court. It is enough to refer to Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [30] ; Stemp v. Australian Glass Manufacturers Co. Ltd. [31] ; Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [32] as explained and applied in Walsh v. Sainsbury [33] and Federated Ironworkers' Association of Australia v. The Commonwealth [34] .

It is unnecessary to trace again the chain of reasoning by which these cases establish that it is incidental to conciliation and arbitration for the prevention and settlement of inter-State industrial disputes to provide for the registration, incorporation and regulation of industrial organizations and for some supervision of their affairs including the election of office bearers. It is likewise unnecessary to restate the grounds upon which it was considered to be incidental to the same subject matter to prohibit a strike or a lock-out on account of an industrial dispute extending beyond a State and a strike or a lock-out in relation to an industrial dispute settled by an award.

1. (1954) 90 C.L.R., at p. 40. 2. (1908) 6 C.L.R. 309. 3. (1917) 23 C.L.R. 226. 4. (1925) 35 C.L.R. 449. 5. (1925) 36 C.L.R. 464, at pp. 470, 483. 6. (1951) 84 C.L.R. 265.

He then proceeded to identify, briefly, the two elements that go to form the basis of the relevant incidental power. These elements are: first, the part which industrial organizations play in the conciliation and arbitration system; and, secondly, the importance of protecting arbitral settlements from defeat, impairment or circumvention or, in other words, of ensuring the practical efficacy of awards. He concluded that these elements combined to support the substantial validity of s. 78. It is noteworthy that in the course of discussing s. 78, the Chief Justice recognized that a construction of the section which confined its operation to penalizing conduct directed against an existing award would strengthen its connexion with the incidental power [35] .

It seems to me that this statement of principle provides the proper startingpoint for a consideration of the issues concerning the definition of industrial action in s. 4 of the Act.

I have already set out Mr. Laurie's submissions with respect to par. (a) of that definition. There are three elements that are required to be satisfied by par. (a). The first is "work the terms and conditions of which are prescribed, wholly or partly, by an award "; the second is the performance of that work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to such work; the third is a resulting restriction or limitation on, or a delay in, the performance of that work. With respect I do not think that it possible to perform work in a manner different from the manner in which it is customarily performed so as to cause restrictions, limitations or delays without affecting the award which prescribes the terms and conditions of that work. In my opinion, par. (a) on its proper construction identifies as "industrial action" action which inhibits the performance of work covered by an award through a departure from the customary manner of performance, or the adoption of a practice pertaining to that performance. So construed, and in the context of s. 188, it serves to protect the arbitral settlement and ensure the practical efficacy of the relevant award. To cite again from the reasons of Dixon C.J. in the Boot Trades Case [36] : " To desert a custom or adopt a practice involves something systematic. It all spells a detraction from the practical operation of the award".

Paragraph (b) of the definition of "industrial action" refers to "a ban, limitation or restriction on the performance of work, or on acceptance or offering for work, in accordance with the terms and conditions prescribed by an award " It would seem to be beyond argument that it is directed to protecting arbitral settlements. In Reg. v. Gallagher; Ex parte Australian Coal and Shale Employees' Federation [37] , in a joint judgment of Barwick C.J., McTiernan, Taylor, Menzies and Owen JJ., this Court described a clause of this description as:

essentially a clause designed to make the award effective by binding the organization as a party to the award not to hamper observance of the award by conduct of the kind described in the clause Nor is it necessary that, if it be not inserted in the award when made, there should be any subsequent dispute before it can be inserted by way of variation of the award. It is enough that it relates to the observance of the terms of an award which has been validly made. 1. (1966) 115 C.L.R. 335, at p. 340.

Mr. Laurie's point in relation to this paragraph is that, while it could not attract any constitutional objection if such a provision was inserted in an award by the Conciliation and Arbitration Commission in the course of the arbitral process, it is not within the power of the Parliament to legislate directly to protect the terms and conditions of an existing award. Whether or not there is any substance in the argument as so stated, however, the proposition must be tested in the context in which it is raised in this case. The question is whether, in the exercise of the well established incidental power to control registered organisations in a manner which is conducive to the protection of arbitral settlements, Parliament can forbid those organisations from taking any action which is directed to coercing a person to strike in relation to work the subject of an award. So stated, I think the question must be answered in the affirmative. The requisite connexion with the incidental power is clear.

The industrial action contemplated by par. (c) is expressed to be "a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work". It will be noticed that, in contrast to the two preceding paragraphs, "work" is not limited to work which is covered by an award. The learned Solicitor-General of the Commonwealth advanced alternative submissions in support of the validity of s. 188 with respect to this paragraph. The first was to rely on certain dicta of Fullagar J. in Williams v. Hursey [38] , as follows:

it has been accepted ever since 1908 that the Commonwealth may create these corporations, and, if it can create them, it must be able to define their powers. They must be associations of employees or of employers formed for the purpose of protecting and advancing the interests of their members, and no reason exists for saying that they cannot be empowered to do anything "not contrary to law" which is calculated to protect or advance those interests. 1. (1959) 103 C.L.R. 30, at p. 68.

In that case, the Court decided, inter alia, that the Waterside Workers Federation, being an organization registered under the Conciliation and Arbitration Act, could lawfully have objects authorising the imposition of a political levy on its members. In the present case the argument proceeded that just as an organization, once created, can engage in activities in respect of which the Commonwealth has no constitutional power, so the Commonwealth may regulate the activities of an organization in areas which otherwise would be beyond its legislative competence. The only limitation was said to be that the legislature cannot impose restraints on an organization which conflict with its reason for existence.

The alternative submission was that if par. (c) is too wide, and therefore beyond power, then it should be read down so as to satisfy either of the two elements which, in the context of the regulation of a registered organization, could provide the basis for a valid exercise of the incidental power as described by Dixon C.J. in the Boot Trade Case [39] . "Work" would then be read either as "work the subject of an industrial dispute extending beyond the limits of one State" or as "work the terms and conditions of which are prescribed, wholly or partly, by an award".

In my opinion, the first of the two alternatives advanced by the learned Solicitor-General should not be accepted. The argument is tantamount to saying that it is within the power of Parliament to control and limit the conduct of a registered organization vis-à-vis its own members in relation to matters which do not bear on its capacity to play its part in the federal conciliation and arbitration system and which can have no effect on the practical efficacy of an award: Boot Trade Case. In other words, the Parliament, in the exercise of its incidental power to control registered organizations, can enter the field of intra-state industrial relations in the pursuit of ends which are themselves beyond Commonwealth legislative power. It is a proposition to which I am unable to give my assent. In my opinion, there must be a closer connexion between the legislative provision which is under attack and the relevant head of constitutional power in order to attract the incidental power. Williams v. Hursey [40] was concerned with the validity of a rule of an organization which was found to be wholly consistent with the purposes of the organization, and I do not understand the statements in that case to support the proposition which is advanced here.

On the other hand, having regard to the provisions of s. 15A of the Acts Interpretation Act 1901 Cth, as amended, I see no reason why par. (c) should not be so construed as to be consistent with the legislative power of the Parliament. I would therefore adopt, with respect, the alternative submission advanced on behalf of the Commonwealth and hold that s. 188 is valid with respect to par. (c) of the definition of "industrial action", subject to the word "work" being read down as indicated above.

The parties do not agree on the issues of whether the present dispute is one which extends beyond the limits of the State of Victoria and whether it is in respect of work the performance of which is covered by a federal award. In the view to which I have come, these are material questions which fall to be determined by the Federal Court.

I would discharge the order nisi for prohibition, and return the informations to the Federal Court to be dealt with according to law.