R v Clarkson; Ex parte Victorian Employers Federation

The certificate further shows that the conditions of eligibility for membership of the organization are as follows:

The Federation shall consist of - (a) Those persons firms and companies or other incorporated bodies which at the date of adoption of these Rules namely were members of this Federation and who employ or usually employ labour engaged in any clerical occupation. (b) Any person firm or company which usually employs or employs labour engaged in any clerical occupation in connection with any trade, business, profession, occupation or calling carried on in Victoria by such person, firm or company and which is admitted as a member as hereinafter provided. (c) An affiliated Society being a Trade Association or Chamber which in the opinion of the Executive Committee is formed in the interests of employers in Victoria and which is a duly incorporated body usually employing labour engaged in any clerical occupation and which is admitted as a member as hereinafter provided. (d) Any person whether an employer in the industry or not who is an officer of the Federation and has been admitted as a member thereof. (e) Associate Members - An Affiliated Society as defined in sub-clause (c) hereof but which is not a duly incorporated body may be admitted as an Associate Member of the Federation subject to Rule 7 hereof.

It is plain that the Victorian Employers Federation is not registered in or in connexion with the vehicle industry and that its conditions of eligibility for membership raise no other question than whether an employer applying for membership employs labour engaged in any clerical occupation in connexion with any trade, business etc. None of the conditions of eligibility makes the Victorian Employers Federation an organization in connexion with any industry other than the clerical industry - an employees' industry (Conciliation and Arbitration Act 1904-1972, s. 4(1) - "Industry" (b)).

In my opinion the Victorian Employers Federation lacks the capacity as a registered organization to represent its members otherwise than as a group of employers registered in connection with the clerical industry. It follows that the Commission is without power to provide by way of a variation of the award that it should be binding upon the Victorian Employers Federation in respect of the employment by its members of employees on work to which the award applies but which does not pertain to the clerical industry.

The Commissioner heard the application and determined it on its merits. Accordingly, I would discharge the order nisi with costs.

It seems to me that the real matter here to be decided is not whether an application to amend the Vehicle Industry Award 1972 should be heard by the Conciliation and Arbitration Commission, but rather, whether that award as it stands, binds the members of the Victorian Employers Federation in respect of employees employed upon any work to which the award applies or merely in respect of employees engaged in a clerical occupation. The question has arisen because of two related matters: firstly, that the Federation is registered under s. 132 of the Conciliation and Arbitration Act in an industry designated "Clerical industry which shall include the keeping of accounts and records, the preparation and publication of documents, office organisation and business industrial and professional administration"; secondly, the conditions of eligibility for membership of the Federation are as follows:

(a) Those persons firms and companies or other incorporated bodies which at the date of adoption of these Rules namely were members of this Federation and who employ or usually employ labour engaged in any clerical occupation.

(b) Any person firm or company which usually employs or employs labour engaged in any clerical occupation in connection with any trade, business, profession, occupation or calling carried on in Victoria by such person, firm or company and which is admitted as a member as hereinafter provided.

(c) An Affiliated Society being a Trade Association or Chamber which in the opinion of the Executive Committee is formed in the interests of employers in Victoria and which is a duly incorporated body usually employing labour engaged in any clerical occupation and which is admitted as a member as hereinafter provided.

(d) Any person whether an employer in the industry or not who is an officer of the Federation and has been admitted as a member thereof.

(e) Associate Members - An Affiliated Society as defined in sub-clause (c) hereof but which is not a duly incorporated body may be admitted as an Associate Member of the Federation subject to Rule 7 hereof.

A number of members of the Federation do employ employees on various kinds of work other than clerical duties to which the Vehicle Industries Award applies. The only workers employed on clerical duties to which the award applies are those described no doubt in accordance with the log in classification no. 125 as follows: "Clerk (plant operations)".

I have, I think, stated what I conceive to be the real matter but it is necessary to observe that the issue does not arise simply as one to determine the operation of the award. Subject to immaterial exceptions, the award provides in terms that it is binding upon the Federation as to -

every operation carried on within or in connection with a plant principally concerned with the manufacturing, assembling or repairing of carriages, carts, waggons, trucks, motor cars, motor cycles, railway cars, tram cars, side-cars or other vehicles or parts or components thereof in wood, metal and/or other material and in other plants as to all such operations except the making or repairing of motor engines or parts thereof.

It seems, however, that when the award was but an interim award it was decided by the Commonwealth Industrial Court as a matter of construction that, notwithstanding the words to which I have just referred, the award only applied to members of the Federation in respect of employees engaged in clerical occupations. Seemingly in order to get around this decision, the Federation applied to the Commission to vary the award by expressly providing that it shall be binding on -

The members of the Victorian Employers Federation in respect of the employment by each of them of employees, whether members of any of the organizations of employees mentioned in Schedules "A" and "B" to this Award or not, employed on any work described in cl. 3(a)(i) of this Award other than the work referred to in cl. 3(a)(ii).

To my mind, the variations sought, if granted, would not extend the binding operation of the award for s. 61 of the Act itself provides that - "An award determining an industrial dispute is binding on - (f) all members of organizations bound by the award." There is no question that the Federation is an organization bound by the award: the statute, therefore, operates of its own force.

The Commission, however, refused the application for the variation, not because it was unnecessary, but because in the opinion of Mr. Commissioner Clarkson, the Commission had no power to grant it. The Commissioner said:

I have formed the view that I am without power to grant the application in its present form. In my view the V.E.F. does not have the capacity to represent employers as to their activities outside the clerical industry. On examination the Conditions of Eligibility For Membership rule of the V.E.F. rules does not appear to expand the classes of persons as to which the V.E.F. is entitled to act in a representative capacity so as to bring the V.E.F. within the reasoning of the High Court in the Dunlop Rubber Case [17] .

In any event even had I formed a different view, I would think that I would be bound to follow the decision of the Commonwealth Industrial Court referred to above.

Accordingly, the Commission decides that it has no power to grant the application which is hereby dismissed.

The Federation then applied to this Court for mandamus to hear and determine its application and an order nisi was granted by Stephen J. on the following grounds:

(a) that upon the true construction of the Conciliation and Arbitration Act 1904-1972 the Commission constituted by Eric John Clarkson has jurisdiction to grant the said application for variation of the Vehicle Industry Award 1972;

(b) that the said Commission has wrongly decided that it has no jurisdiction to grant the said application for variation of the Vehicle Industry Award 1972;

(c) that the prosecutor has the capacity to represent its members in connexion with industrial disputes relating to employees of those members whether or not such employees are employed in a clerical capacity;

(d) that the prosecutor has the capacity to represent its members in connexion with the industrial disputes outside the clerical industry;

(e) that the prosecutor has the capacity to represent its members in connexion with the industrial disputes in settlement of which the Vehicle Industry Award 1972 was made;

Upon the return of the order nisi, the application was opposed by the Metal Trades Industry Association of Australia - an organization of employers party to the award - and by a group of unions each party to the award.

It appears to me that the course which has been followed by the Federation is not appropriate in the circumstances that an award has been made binding the Federation to which s. 61 of the Act applies. Its members are already bound to the extent that the variation is sought to effect. I find no reason for reading into s. 61, an implication to the effect that, notwithstanding its clear, general language, an organization is not bound by an award if it could not, by reason of the description of the industry in, or in connexion with, which it was registered, have represented its members to the extent to which it did in the proceedings leading to the award. Section 61 does not require an investigation of the capacity of any organization bound by an award to represent its members. Of course, the extent to which members of an organization are bound by an award does depend upon the terms of the award, but here, as has already been indicated, the award did purport to bind the Federation, and therefore its members, as to employees engaged in every operation to which the award applies. The Federation was not bound merely as to employees engaged in clerical occupations.

Had the Commissioner refused the variations sought because to grant it would only state what s. 61 already provided, there would have been no case for mandamus. The application to vary would have been heard and determined and in my opinion determined correctly. The Commission decided, however, that it had no power to grant the operation because, as I follow it, the Commonwealth Industrial Court had decided that the interim award did not bind the members of the Federation as to operations covered by the award which were performed by employees in non-clerical occupations. This decision as to the lack of power to make the variation sought was, in my opinion, mistaken.

The argument before us, however, followed mainly a different course, as it was argued, for and against, that the Federation had no capacity to represent members in relation to either the award or its variation with regard to matters not concerned with employees engaged in clerical occupations. Accordingly, I feel obliged to consider this argument, although, for the reason which I have already given, I do not regard its solution as determinative of this case.

At this point, the case falls to the mean level of a demarcation dispute between two employer organizations - a power struggle without any bearing upon the interests of the workers or the employers governed by the award. However, it is not for courts to evaluate what lies behind the cases that are brought to them to decide. The decision of the Commonwealth Industrial Court must therefore be examined.

In its so-called interpretation of the interim award, the Commonwealth Industrial Court decided that, as between the unions and the Federation, the dispute concerning clerical employment was the only dispute in which there was jurisdiction in the Commission to determine and accordingly the only dispute which it did determine. Here, perhaps, it is worth observing how fortunate it was that the log of claims contained item 125 already referred to as a frail peg upon which to hang this purported interpretation of the award, although the idea that this was the only item which the unions pressed against the Federation is hardly to be entertained. It is clear that the unions were, through the Federation, pressing their claims against the members of the Federation in respect of operations in the vehicle industry and it was for this purpose that the Federation was served with the log, that the Federation took part in the proceedings before the Commission, and was made party to an award expressed to be binding in the general terms already noticed. However, as I have said, the Commonwealth Industrial Court arrived at a different conclusion as a matter of the interpretation of the award.

In reaching its conclusion the Court seemingly distinguished Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1] , on the footing that the decision turned upon a particular circumstance viz. that although the workers whom the union was seeking to represent were workers in an industry other than that in respect of which the union had been registered, they were employees whose work was itself within an industry that was named in the union's conditions of eligibility. I do not so read the decision which rests, I think, on the broad ground that notwithstanding that the workers in question had become members of the union through irregular extension of the union's conditions of eligibility, they were, nevertheless, members covered by those conditions of eligibility. This was conclusive of the union's right to represent them. The Court said [2] :

The result of the foregoing is that it was not beyond the capacity of the organisation to formulate industrial claims in the interests of that group or class ascertainable by reference to the "conditions of eligibility" prescribed by its rules and the claim of the prosecutor that the operation of any award made by the Commission should be limited to those engaged in or in connexion with the rubber industry must be rejected. The ratio decidendi of the decision is that an organization can represent those who are, in accordance with its conditions of eligibility, its members. Here, the Federation sought to do no more than represent those who, in accordance with its conditions of eligibility, were its members and the Dunlop Case is authority for the proposition that it could do so. There the Court said [2] : A test which the industrial law approves or allows for determining who are eligible as members of an organised body registered under its provisions surely may in such circumstances be adopted as a sufficient criterion for ascertaining or defining the group or class in the place of which it stands for industrial purposes or which it "represents". 1. (1957) 97 C.L.R. 71. 2. (1957) 97 C.L.R., at p. 87. 3. (1957) 97 C.L.R., at p. 87.

Accordingly, in my opinion, the decision of the Commonwealth Industrial Court under consideration is at variance with the decision of this Court in the Dunlop Case.

In the field of industrial relations, every consideration is in favour of simplicity as opposed to complexity and the simple rule adopted in the Dunlop Case - that an organization can represent the group belonging to it as members in accordance with its conditions of eligibility - is greatly to be preferred to some different rule that would always throw open to examination the capacity of an organization, a party to the dispute, to represent some of those who are its members according to its conditions of eligibility by reason of the particular description of the industry in or in connexion with it when it became registered, Industrial tribunals should be spared such subtleties and the Dunlop Case should be applied in its full scope.

It was suggested that so to decide would be to depart from Reg. v. Watson; Ex parte Australian Workers' Union [3] . That is mistaken. The decision there was that a union could not represent workers outside its conditions of eligibility, an entirely different matter.

Counsel for the unions presented a further argument. It was contended that the Victorian Employers Federation does not exist and so could not make an application to vary the award which purported to bind it. It was part of the argument that the Federation, although named, is not in law a party to the award. The basis for this contention was that an organization cannot be validly registered in what is described as the "clerical industry". It is true enough that the necessity for setting out in respect of the association of employers, or employees the industry in or in connexion with which they either employ or are employed gives rise to some inelegancies of language but, it seems to me, that the inelegancy of speaking of a clerical industry does not lead to the conclusion that, for the purpose of the Act, there can be no such industry. In this connexion, it may be recalled, that in Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia [4] "The Local Government Municipal and Statutory Corporation Industry" was held to be sufficient description of an industry. It is also to be observed that clerks are engaged in industrial enterprises and according to the definition of industry in s. 4 of the Act, the employment of employees is included in the definition of an industry. Accordingly, in my opinion, the contention fails but had it substance it would not have supported the conclusion that the Federation does not exist as an organization, for s. 132(3) provides expressly that upon registration an association shall become an organization. The Federation has been registered; it is, therefore, an organization.

Reliance for a contrary view was placed upon the decision of this Court in Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. Ltd. [5] where it was decided that a certificate by the registrar under s. 57 of the Act of 1904-1910 was not conclusive evidence of the validity of such registration. Section 57 provided that the registrar's certificate of registration shall, until proof of cancellation, be conclusive evidence of the registration of the organization mentioned in it and that it has complied with the prescribed conditions to entitle it to be registered. This section, it will be observed, is different from s. 132(3) and I cannot read the decision upon its terms as negating the clear words of s. 132(3). Accordingly, I do not find it necessary to consider whether the authorities relied upon did support the actual decision in that case.

Because I consider that the award as it stands does bind the members of the Federation in relation to employees employed on any work to which the award applies, I do not think mandamus should go to hear and determine an unnecessary variation of the award relating, as it does, to a matter governed by the statute itself. In substance, however, the applicant succeeds and the respondents fail. In these circumstances, I would make no order for costs.

The facts relevant to this application for mandamus are set out in the judgment of my brother Menzies which I have had the advantage of reading. By cl. 4 of the Vehicle Industry Award, 1972 it is provided that the award shall be binding upon, inter alios, "the organisations of employers referred to in schedule "C" to this award in respect of the employment by members of such organisations of employers of employees whether members of any of the organisations of employees mentioned in schedules "A" and "B" to this award or not employed on work to which this award applies". The prosecutor, the Victorian Employers Federation ("the Federation"), is named in sch. C. The work to which the award applies is described in cl. 3 of the award; broadly speaking, it applies to operations in or in connexion with plants principally concerned with the manufacturing, assembling or repairing of vehicles or parts thereof. For convenience I shall refer to such operations as "the vehicle building industry". The application made by the Federation to the Commission was to vary the award by adding to cl. 4 a subclause which would expressly provide that the award would be binding on the members of the Federation in respect of the employment by each of them of employees employed on any work to which the award applies. In making this application the Federation was in a dilemma. If the Federation was bound by the award it followed from the provisions of s. 61(f) of the Conciliation and Arbitration Act 1904 Cth (as amended) ("the Act") that all members of the Federation were also bound by it; the application was then unnecessary. If, on the other hand, as the respondents contend, the Federation had no capacity to represent its members except in relation to the "clerical industry", and could not be a party to a dispute as to the conditions of employment in the vehicle building industry, except in so far as it related to the conditions of employment of clerks employed in that industry, so that the award did not bind the Federation except in so far as it related to the employment of clerks, the Federation would similarly lack capacity to apply for the variation which it sought. The Commission dismissed the application for the latter reason.

I regard it as established by Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [6] that for the purposes of the Act an organization is entitled to represent a group or class comprising all those persons who are eligible to be its members even though that group or class extends beyond the industry in or in connexion with which the organization is registered [7] . No reason has been advanced that would persuade me to depart from this decision, or to hedge round with qualifications the clear and simple principle for which it is authority. It was submitted by the respondents that to accept this principle would be to make arbitrary and purposeless the provisions of s. 132(1)(a) and (b) that speak of the registration of an association "in or in connection with any industry". No doubt the importance of the section is reduced, but it is by no means without significance. The section requires that the members of an association should stand in the requisite industrial relationship to one another before registration of the association may be granted. The object of this requirement is perfectly understandable. It is to be expected that the rules of an association, whether original or amended, will not be inconsistent with the purpose of its registration and that the industrial registrar will endeavour to ensure when an association applies for registration or for an alteration of its rules that the rules will contain conditions of eligibility for membership which are not wider than the description of the industry in or in connexion with which the association was formed. The remarks of Barwick C.J. in Reg. v. Watson; Ex parte Australian Workers' Union [8] as to the duty of the industrial registrar, although made with respect to registration under s. 132(1)(b), would seem equally pertinent where registration is sought under s. 132(1)(a). However, it does seem true to say that the present case provides another example of a defect in the system which allows the registration of rules containing conditions which extend the eligibility for membership far beyond the industry in respect of which the organization is registered, although this may have come about because those concerned gave an erroneous interpretation to the words describing the industry.

1. (1957) 97 C.L.R. 71. 2. (1957) 97 C.L.R., at pp. 86-87. 3. (1972) 128 C.L.R., at p. 79.

It follows that the Federation was entitled to represent its members in relation to the making of the award, which was binding on the Federation notwithstanding that it did not deal with employment in the "clerical industry", or, with a minor exception, with the employment of clerks.

A further submission made by the respondents was that there is in truth no "clerical industry" and that for this reason the registration of the Federation was invalidly procured and the Federation is therefore not an organization under the Act. It was not disputed that clerks might be engaged in industry (although that will not necessarily be the case - Ex parte Professional Engineers' Association [9] , but it was submitted that a number of employers cannot be said to be engaged in or in connexion with an industry simply because they all employ clerks. I agree that the question whether "any association of employers in or in connection with any industry" exists within s. 132(1)(a) is not answered by saying that all the employers concerned have employees who are clerks, but it is a mistake to regard the words "clerical industry", used in relation to the registration of the Federation, as meaning the industry of employing clerks. The industry intended to be described is the industry in which the members of the Federation themselves are engaged and not the industry of their employees. The description is not simply "the clerical industry" but "Clerical industry which shall include the keeping of accounts and records, the preparation and publication of documents, office organisation and business industrial and professional administration industry". In my opinion these words describe the industry of providing services of a clerical nature, e.g. keeping accounts for other persons in business, preparing documents for sale to the public or for use by other persons in business, advising on office organization, and so on. A business which provides services of that kind is in my opinion an industry: see Australian Insurance Staffs' Federation v. Accident Underwriters' Association [10] ; Ex parte Professional Engineers' Association [11] ; Pitfield v. Franki [12] . It is true that the industry thus described is very different from the vehicle building industry but the discrepancy between the conditions of eligibility for membership and the description of the industry in or in connection with which the Federation is registered does not affect the validity of the registration of the organization. In my opinion it has not been shown that the registration of the Federation was irregular or invalid. It is, therefore, in my opinion unnecessary for the Federation to rely upon s. 132(3) of the Act which provides that "upon registration, the association shall become and be an organisation", and I do not regard the present as an appropriate case in which to consider whether that subsection would have the effect that an association which is in fact registered thereby becomes an organization for the purposes of the Act notwithstanding that as a matter of law it was not entitled to registration. Similarly it is unnecessary to discuss the effect of s. 135, which provides that a certificate issued by the registrar "shall until proof of cancellation be conclusive evidence of the registration of the organisation therein mentioned and that it has complied with the prescribed conditions to entitle it to be registered", or to consider Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. [13] , which was decided on an earlier section corresponding to s. 135.

1. (1959) 107 C.L.R. 208, at p. 233. 2. (1923) 33 C.L.R. 517, at p. 536. 3. (1959) 107 C.L.R., at p. 236, 267. 4. (1970) 123 C.L.R. 448, at p. 456. 5. (1911) 12 C.L.R. 398.

I agree that mandamus should be refused, not because the Federation lacked capacity to make the application but because the variation applied for was unnecessary.

I have had the advantage of reading the reasons for judgment of my brother Menzies and am content to concur in them.