R v Cohen; Ex parte Motor Accidents Insurance Board

High Court of Australia|1979-07-01|Before: Aickin JJ, Gibbs J, Mason J

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy and Aickin JJ. R v Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46

ORDER Order nisi for prohibition discharged with costs.

The particular facts and the statutory provisions relevant to this matter may be found in the reasons for judgment of my brother Mason which I have had the advantage of reading.

The first matter to be decided, in my opinion, is the precise meaning and scope of the eligibility clause. There is no reason, in my opinion, to read it otherwise than in its natural and ordinary sense. There are, of course, occasions when one needs to be generous in the interpretation of documents prepared in the industrial field: cf. Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1] and the subsequent case [2] . There is, however, nothing of that kind involved in the construction of the words of this eligibility clause. There is in the case of an eligibility rule the consideration that the employee himself must know whether or not he is qualified to join a particular industrial organization. This consideration underlines the necessity to give the words of the eligibility clause their ordinary significance as they would be understood by the employee. Further, in my opinion, there is no need to expand the area of the eligibility clause beyond the ordinary meaning of the words it employs. After all, the area for inter-union disputation about union coverage is already large enough and fraught with great peril to the national interest.

(1965) 113 C.L.R. 228, at p. 239. 2. (1966) 115 C.L.R. 443, at p. 452.

The business of insurance in its ordinary meaning involves, in my opinion, the selling of insurance, the carrying on of a commercial activity in engaging in indemnity contracts. One, of course, engages in insurance when one enters into a contract of indemnity: the Board may therefore be said to be involved in indemnity insurance. But the eligibility clause goes further than that. It requires, in my opinion, a commercial repetitive activity of selling indemnity contracts. The word "business" in the clause is not, in my opinion, equivalent to the word "activity". It carries the connotation of commercial activity of the indicated kind.

The Board, for its part, is quite clearly not engaged in a commercial activity. It is administering a statutory scheme which in truth is designed to displace commercial activity in the field of car accident indemnity. It seems to me little to the point that in expressing that statutory scheme language is used which has been borrowed from the commercial field of insurance, such as "premium" and "indemnify". The Board in no sense sells an indemnity contract; indeed, it does not enter into any contract of indemnity. It issues no policy. So far as appears, it does not re-insure.

Consequently, I have reached the conclusion that the Board is not carrying on the business of insurance and that its employees are not within the eligibility clause of the respondent industrial organization. In that situation, the organization cannot create a relevant dispute with the Board. There being no dispute, the Commission lacks jurisdiction.

I have had the advantage of reading the reasons prepared by Mason J. and am in general agreement with them.

The question whether any employees of the Motor Accidents Insurance Board are "employed in the business of Insurance" within the meaning of the eligibility clause of the respondent union is one of some difficulty. Insurance ordinarily results from a contract, under which the insurer assumes his obligation to the insured in return for a money consideration, called the premium. In the present case, the obligation of the Board to indemnify any owner or user of a motor vehicle, or his legal personal representative, is derived from the Motor Accidents (Liabilities and Compensation) Act 1973 Tas. as amended, and the premium which that Act requires should be paid cannot strictly be described as the consideration for the obligation. However, the activity of the Board under Pt III of the Act involves effecting what is, for all practical purposes, insurance against claims by third parties in respect of death or bodily injury resulting from the use of a motor vehicle. The Act assumes that no cover is afforded unless a premium has been paid: ss. 18 (1), 30 (1). The business of the Board is conducted through ordinary insurance companies which are its agents. The work of some of its employees, particularly those whose duty it is to investigate claims, is similar to that which would be performed by the employees of an insurance company. In these circumstances, having regard to the fact that the rules governing the eligibility for membership of a union should be liberally construed, I have come to the same conclusion as that which has been reached by Mason J., namely that the Board is engaged in the business of insurance within the meaning of the clause.

Once this conclusion is reached, I find no difficulty in holding that the dispute was an industrial one. I have already discussed the relevant principles in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [3] and need not add to what I have said.

The business of the Board under Pt IV of the Act is not that of insurance, and it may be that some members of the small staff of the Board are not employed in the business of insurance, and are therefore not eligible for membership of the respondent union. That, however, would be a matter for the Commission to consider if it came to make an award: cf. Ex parte Professional Engineers' Association [4] .

(1959) 107 C.L.R. 208, at pp. 242, 245, 252-253, 265, 269.

I have had the advantage of reading the reasons for judgment of my brother Mason. I agree with all that he says and wish to add only one comment.

The judgment of Gibbs J. in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [5] with which I agreed, does in my view in itself provide a complete answer to the second of the Board's submissions. To read it is to appreciate the clear distinction which exists between the functions of the Department there in question and those performed by the present Board under Pt III of its Act. The former were "bare administrative functions, such as could not be performed in industry under our system" [5a] whereas the latter are, as the judgment of Mason J. demonstrates, of an industrial character.

(1977) 140 C.L.R. 63. 2. (1977) 140 C.L.R., at pp. 76-77.

Apart from serving to distinguish the facts of the two cases, the judgment of Gibbs J. also serves to refute the contention that, despite the nature of the Board's function under Pt III of its Act, it cannot be a party to an industrial dispute. As Gibbs J. points out [5b] the industrial nature of the employer's activity will be enough for this purpose. Neither the fact that the Board's activity is governmental and is not undertaken for profit nor that the character of the employees' work is purely clerical or administrative will operate to exclude it as party to an industrial dispute so long as the functions which it performs are of an industrial character. While the Board's functions are no doubt in a sense more remote from the activity of transportation of goods and persons than were those of the Department in Reg. v. Holmes, lacking as they do those managerial elements which were said to be involved in the Department's work, this is not to the point. Once it is established that the Board is, in substance, engaged in the business of insurance that is in itself enough, without more, to render it capable of being a party to an industrial dispute. It can no longer be said to stand "outside the whole world of productive industry and organized business".

The prosecutor, the Motor Accidents Insurance Board ("the Board"), seeks to make absolute an order nisi made by Stephen J. for a writ of prohibition directed to the respondents, the Australian Conciliation and Arbitration Commission ("the Commission") and the Australian Insurance Employees' Union ("the Union"), restraining them from proceeding with the hearing of an "industrial dispute", arising from the non-acceptance of a log of claims, between the Union and various parties including the Board in so far as the dispute relates to the Board. The ground taken by the Board is that the Commission has no jurisdiction in the matter in so far as the matter relates to the Board.

The Board was established by s. 4 (1) of the Motor Accidents (Liabilities and Compensation) Act 1973 Tas., as amended ("the Act"). Various rights and powers are conferred and duties and liabilities imposed upon the Board by the Act.

The Union is registered under the Conciliation and Arbitration Act 1904, as amended, as an organization of employees "in connection with the industry of insurance". The conditions of eligibility for membership of the Union, in so far as they are presently relevant, are as follows:

The Union shall consist of an unlimited number of members, male and female employed or usually employed in the business of Insurance or Assurance or by the Insurance Council of Australia together with such other persons whether or not employees in the Industry as have been appointed or elected officers of the Union and admitted as members thereof.

In July 1975 the Union (which was then registered under the Conciliation and Arbitration Act 1904 as the "Australian Insurance Staffs' Federation") served a letter of demand and an attached log of claims upon a number of employers in various States, including the Board. The Board rejected the log of claims by letter dated 5th August 1975. In proceedings before the Commission on 10th November 1975, the Commission made a finding, pursuant to s. 24 (1) of the Conciliation and Arbitration Act 1904, that there was an "industrial dispute" within the meaning of that Act between the Union and the Board. There was no appearance by the Board in these proceedings as it took the view that the Commission had no jurisdiction in the proceedings in so far as they related to the Board.

In proceedings before the Commission on 17th August and 3rd October 1978 the Board made an application that the Commission should, pursuant to s. 24 (1) of the Conciliation and Arbitration Act 1904, revoke its finding of 10th November 1975 that there was an "industrial dispute" between the Union and the Board. On 10th October 1978 the Commission refused the application.

By letter dated 7th February 1979 the Union informed the Board that unless the Board indicated its agreement to a "draft industrial agreement" which was attached to the letter by 12th March 1979 or suggested "a rational and reasonable alternative" to the proposals contained in the agreement by that date, the Union would seek a resolution of the matter by arbitration.

It was in these circumstances that Stephen J. made the order nisi for a writ of prohibition on 12th April 1979. The question for this Court is whether there is an "industrial dispute" between the Union and the Board for the purposes of the Conciliation and Arbitration Act 1904. If there is no "industrial dispute" between the Union and the Board, the Commission has no jurisdiction to hear the matter, since the existence of an "industrial dispute", as that expression is understood in the context of s. 51 (xxxv.) of the Constitution, is a prerequisite to the jurisdiction of the Commission.

The case for the Board against the jurisdiction of the Commission rests on two arguments. First, it is submitted that the employees of the Board are not eligible to be members of the Union because they are not "employed or usually employed in the business of insurance" and hence that there can be no "industrial dispute" between the Union and the Board. Secondly, it is submitted that, in any case, the Board is not engaged in activities of an "industrial" character and therefore cannot be a party to an "industrial dispute".

The first question, then, is whether the staff of the Board are "employed or usually employed in the business of insurance" and thus eligible to be members of the Union. That none of the Board's staff is, in fact, a member of the Union provides of itself no obstacle to a finding that an "industrial dispute" exists between the Union and the Board: Metal Trades Employers Association v. Amalgamated Engineering Union [6] . However, if the staff of the Board are ineligible to become members of the Union, it follows that there can be no such dispute between the Union and the Board: Reg. v. Watson; Ex parte Australian Workers' Union [7] .

(1935) 54 C.L.R. 387. 2. (1972) 128 C.L.R. 77, esp. at p. 93.

It is the functions of the Board under the Act which must be examined in order to determine whether its staff are "employed or usually employed in the business of insurance".

The Act is described in its long title as "An Act to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor accidents and for the payment of compensation in respect of those deaths and bodily injuries ". As the long title suggests, the Board performs two distinct principal functions under the Act. The details of these functions are set out in Pts III and IV of the Act respectively.

Part III is concerned with "liabilities in respect of death or bodily injury arising from motor accidents". It creates a scheme of indemnity by the Board in relation to common law liabilities arising out of motor vehicle accidents which have resulted in death or bodily injury. This scheme replaces the system of compulsory third party insurance established by Pt VII of the Traffic Act 1925 Tas., as amended (see ss. 35 and 36 of the Act). The crucial provision of Pt III is s. 14 (1) which provides:

By virtue of this Act, but subject to and in accordance with the provisions thereof, the Board is bound to indemnify a person owning or using a motor vehicle, or his legal personal representatives, in respect of any liability (not being a contractual liability) incurred by him in respect of the death of, or bodily injury to, any person caused by or arising out of the use of that motor vehicle in this State on or after the appointed day. The sub-section does not apply to certain liabilities which are specified in s. 14 (3) and (4).

The moneys which the Board is required to pay by way of indemnity under s. 14 (1) must be paid in accordance with either an appropriate agreement or the determination of a competent tribunal (s. 15 (1)). In this respect, the Board is empowered to conduct and control any negotiations or legal proceedings in relation to a relevant liability (ss. 17 and 21 (5)).

In certain circumstances, the Board is entitled to recover payments which it has made by way of indemnity under s. 14 (1) (s. 18). One such circumstance is the situation in which no cover was afforded under Pt V of the Act to the use of the motor vehicle at the time of the accident giving rise to the relevant liability (s. 18 (1)).

Provision is made for the situation in which some person has incurred a liability in respect of which he would be entitled to be indemnified by the Board, but the identity of his motor vehicle cannot be established, or he has died or cannot be found (s. 16). In such a situation, appropriate proceedings may be taken, and judgment obtained, against the Board.

Section 19 makes provision for liabilities incurred by a person owning or using a motor vehicle registered elsewhere than in Tasmania and in respect of which a third party insurance policy is in force. Section 20 makes provision for the liability of the Board in relation to motor vehicles which are used in jurisdictions other than Tasmania and in respect of the use of which cover has been afforded under Pt V of the Act.

The second principal function of the Board is detailed in Pt IV of the Act which creates a scheme of statutory compensation in relation to motor vehicle accidents. The critical provision of Pt IV is s. 23 (1) which provides:

(a) a resident of the State dies, or suffers bodily injury, as a result of an accident occurring in the State;

(b) a person dies, or suffers bodily injury, as a result of an accident arising out of the use in the State of a motor vehicle registered in the State; or

(c) a resident of the State dies, or suffers bodily injury, as a result of an accident occurring outside the State but within the Commonwealth, arising out of the use of a motor vehicle registered in the State,

there becomes payable by the Board such benefits as are provided for in the first Schedule. Under s. 2 (1), "accident" is defined to mean "an occurrence caused by or arising out of the use of a motor vehicle whereby the death of or bodily injury to any person results". Section 24, by way of exception to s. 23 (1), specifies a variety of circumstances in which no scheduled benefits are payable.

Appropriate provision is made for the setting-off of payments in the form of scheduled benefits against damages payable in respect of common law liabilities in relation to which the Board has a duty of indemnity under Pt III of the Act (s. 27).

The notable feature of this scheme of statutory compensation is that the benefits for which it makes provision are payable irrespective of the existence of common law liabilities.

The moneys which the Board is required to pay in discharge of its liabilities under Pts III and IV of the Act are provided out of the funds of the Board. These funds consist of (a) the sums paid over to the Board under Pt V of the Act, and (b) all other sums paid to or recovered by the Board in pursuance of the Act (s. 8 (1)). The Board's funds therefore include the "premiums" for which provision is made under Pt V of the Act. These premiums, which are payable by the owners of motor vehicles, are designed to afford the cover required for the purposes of the Act in respect of the use of motor vehicles (s. 30 (1)).

Under s. 29 (1) of the Act, it is an offence for a person to use, or cause or allow any other person to use, a motor vehicle in a public street unless cover was afforded to that use of the motor vehicle by the payment of a premium. Moreover, s. 10 (7) of the Traffic Act 1925 prohibits the registration of motor vehicles in respect of the use of which no cover is afforded under the Act (see s. 35 and the Third Schedule of the Act). These provisions are intended to ensure that appropriate cover is afforded under the Act to the use of all motor vehicles registered in Tasmania.

Finally, it should be noted that the Board is empowered to enter into arrangements with insurers carrying on business in Tasmania for the participation of those insurers in the administration of the Act (ss. 10, 32 (2), 33). Under these arrangements, "participating" insurers act, in effect, as agents of the Board.

In considering whether the Board is engaged in "the business of insurance", it should be recognized at the outset that we are concerned with the use of that expression in the eligibility clause of a trade union's registered rules. The expression is, in such a context, no doubt intended to have a wide meaning and it should be interpreted and applied in accordance with its ordinary and popular denotation rather than with some narrow or formal construction. Thus the question is whether, as a matter of ordinary usage, the Board can properly be said to be in "the business of insurance".

In my opinion, an affirmative answer should be given to that question, because the Board is, in the relevant sense, engaged in "the business of insurance" under Pt III of the Act. By virtue of that Part, the Board is obliged to indemnify a person owning or using a motor vehicle, or his personal legal representatives, in respect of a common law liability incurred by him in respect of the death of, or bodily injury to, any person caused by or arising out of the use of that motor vehicle in Tasmania. It is true that this obligation is not strictly conditioned upon the payment of a "premium" under Pt V of the Act. But the Board is entitled to recover payments which it has made by way of indemnity in the situation where no cover was afforded to the use of the motor vehicle at the time of the accident giving rise to the relevant liability by the payment of a premium under Pt V of the Act. Furthermore, the provisions of s. 29 (1) of the Act and s. 10 (7) of the Traffic Act 1925 are designed to ensure that premiums are paid and appropriate cover afforded in relation to all motor vehicles registered in Tasmania. In such circumstances it cannot be doubted that the activities of the Board under Pt III of the Act fall within the ordinary and popular understanding of the word "insurance".

It may also be that the Board is engaged in insurance as a matter of legal analysis. After all, the nature of the obligation imposed upon the Board by Pt III of the Act is at least analogous to the nature of the obligation imposed upon the insurer under a third party insurance policy in the context of motor vehicle insurance. And the two obligations are certainly identical for all practical purposes, as is evident from s. 20 of the Act whereby the cover afforded by the payment and acceptance of a premium under Pt V of the Act has effect as a compulsory third party insurance policy in a jurisdiction outside Tasmania. Despite the Board's contrary argument, I very much doubt whether the existence of a contract is of itself essential to the legal concept of "insurance". There is much to be said for the view that it is the relationship of indemnity that exists between insurer and insured, rather than the source of that relationship, that is the essence of the concept of insurance, so that it matters not whether the relationship arises by statute or by contract.

But, however that may be, the fact that the Board is required to indemnify the owners and users of motor vehicles in respect of third party liabilities associated with motor vehicle accidents, is certainly sufficient to justify the conclusion that the Board's function under Pt III of the Act is that of "insurance", in the popular sense of that term. This conclusion might be reinforced, perhaps, by reference to the language of the Act, which speaks of "indemnity", "cover" and "premiums", and to the very title of the Board itself. Of course, the terminology of the Act cannot be decisive, but it does serve to indicate, at least, a popular understanding of the character of the Board's function under Pt III of the Act. Even more significant in this respect is the fact that the scheme of indemnity established under the Act replaces the system of compulsory third party insurance which hitherto operated in Tasmania and which continues to obtain elsewhere in Australia.

Moreover, it is, in my opinion, correct to say that when the Board performs its function of insurance under Pt III of the Act, it carries on "the business of insurance". The word "business" is, of course, one of wide import, although the precise scope of its meaning will always depend upon the context in which it appears. Here, as I have said, the question is one of its ordinary and popular denotation. Thus I do not think, contrary to the argument for the Board, that the word "business" in the present case merely contemplates commercial enterprises which are in competition and which are conducted for profit. Rather, it denotes the idea that some person, body or organization is engaged in the activity or undertaking of insurance. Once this definition or understanding of the word "business" is accepted, it follows that certain features of the Board and of the scheme which it administers do not conclude the issue of whether the Board is in "the business of insurance". Thus, for example, it cannot be decisive that the Board is a statutory body nor that it is not out to make a profit (see s. 11 (3) of the Act). Furthermore, it can hardly be significant that the effect of the scheme of insurance created by the Act is to supersede the system of compulsory third party insurance established under the Traffic Act 1925. Indeed, the fact that the Board's functions under Pt III of the Act replace those of the insurers who were involved in the system of insurance which obtained under the Traffic Act 1925 rather lends force to the conclusion that the Board is engaged in the "business" of compulsory third party insurance.

In my opinion, it is equally clear that the Board is not engaged in "the business of insurance" under Pt IV of the Act. That Part, as I have mentioned, provides for a scheme to be administered by the Board whereby compensation in the form of scheduled benefits is to be paid to those injured in motor vehicle accidents or to the dependants of those killed in such accidents. The scheme thus established is not one of insurance, since it involves no indemnity in respect of common law liabilities and, indeed, operates irrespective of the existence of those liabilities.

It was argued for the Board that its functions under the Act should be considered, not in isolation, but in their totality and that, if this was done, it could not be said that the "business" of the Board was that of insurance. The simple answer to this argument is that it is quite possible, as in the present case, for a person or body to be engaged in several activities, one of which can properly be described as "the business of insurance". It is in my opinion, a misconceived approach to attempt to characterize the functions of the Board in their totality, and there is certainly nothing in the present case which warrants such an approach. If, as I have concluded, the Board is indeed engaged in "the business of insurance" under Pt III of the Act, it is nothing to the point that the Board is not so engaged under Pt IV.

I therefore reject the submission for the Board that its staff are ineligible to become members of the Union, since some or all of the staff are "employed or usually employed in the business of insurance" within the meaning of those words as used in the eligibility clause of the Union's registered rules.

The second submission for the Board was that the Board was not engaged in activities of an "industrial" character and hence could not be a party to an "industrial dispute".

In my opinion, the rejection of the Board's first submission carries with it the consequence that the Board cannot succeed in relation to its second submission. A decision that the Board is in "the business of insurance" must, so it seems to me, lead inevitably to the conclusion that the Board is thereby engaged in activities of an "industrial" character. That the business of insurance is of an "industrial" character for the purposes of the Conciliation and Arbitration Act 1904 and s. 51 (xxxv.) of the Constitution is well established in the decisions of this Court: Australian Insurance Staffs' Federation v. Accident Underwriters' Association [8] ; Australian Insurance Staffs' Federation v. Atlas Assurance Company Ltd. [9] ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers, Australia [10] ; Reg. v. Marshall; Ex parte Federated Clerks Union of Australia [11] ; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [12] .

(1923) 33 C.L.R. 517. 2. (1931) 45 C.L.R. 409, at p. 421. 3. (1959) 107 C.L.R. 208, at pp. 236, 267. 4. (1975) 132 C.L.R. 595, at pp. 607-608. 5. (1977) 140 C.L.R., at p. 75.

The decision of this Court in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.), upon which counsel for the Board relied, is, in my opinion, to be distinguished from the present case. There, the issue was whether a dispute between the Commissioner for Motor Transport of the State of New South Wales and the clerical and administrative staff employed in his Department was an "industrial dispute" within s. 51 (xxxv.) of the Constitution and s. 4 (1) of the Conciliation and Arbitration Act 1904. A majority of the Court (Barwick C.J., Gibbs and Stephen JJ.) held that the dispute was not "industrial" because the activities of the Department - the collection of taxes and charges, the tasks of licensing and registration, and the formulation of rules for the governance of traffic - were "bare administrative functions" which stood "outside the whole world of productive industry and organized business" [13] . By way of contrast, the business of insurance is of an "industrial" character because, at least, it is ancillary or incidental to industry: see Reg. v. Marshall; Ex parte Federated Clerks Union of Australia [14] . The fact that the insurance in question may be carried on by a governmental organization or statutory body, even to the exclusion of other businesses, does not derogate from the "industrial" quality of its activities nor convert those activities into "bare administrative functions" within the meaning given to that expression in Reg. v. Holmes; Ex parte Public Service Association [15] .

(1977) 140 C.L.R., at pp. 76-77. 2. (1975) 132 C.L.R., at pp. 607-609. 3. (1977) 140 C.L.R., at pp. 75-77.

I would only add that the interstate quality of the "industrial dispute" between the Union and the Board is provided by the non-acceptance of the Union's log of claims by a variety of employers in different States: Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways [16] .

Accordingly, I would discharge the order nisi for prohibition.

The Australian Conciliation and Arbitration Commission has, by the respondent Commissioners, found that an industrial dispute exists between the Australian Insurance Employees Union and certain employers, including the prosecutor, Motor Accidents Insurance Board. The Board applies for a writ of prohibition to prevent the Commissioners further dealing with the dispute so far as it concerns the Board. One ground is that there is no industrial dispute concerning the Board because the Union is not capable of engaging in an industrial dispute with the Board. The Board's contention is that the Union is incapable because, under its rules, eligibility for membership is restricted (so far as is relevant) to "persons employed or usually employed in the business of Insurance or Assurance " and that the Board is not engaged in "the business of Insurance or Assurance". Another ground is that the Board is not in industry, and therefore cannot be involved in an industrial dispute within the meaning of s. 51 (xxxv.) of the Constitution.

In dealing with the Board's functions, the Motor Accidents (Liabilities and Compensation) Act 1973 Tas. by which the Board is constituted, speaks of insurance cover, premiums, indemnity, which is the language of insurance. Although the statutory scheme puts the Board in a position different from that of private insurers, it is still engaged in insurance. "Business" is a word of wide import: in this context it is non-specific, and if the words, "the business of", were left out of the eligibility rule, the meaning would not be changed. My conclusion is that the Board is engaged in "the business of Insurance or Assurance" and the persons employed by it are therefore within the eligibility for membership rule of the Union.

The industry in connexion with which the Union is registered (see s. 133 of the Act) is "the industry of insurance". The insurance business is industry (see Australian Insurance Staffs' Federation v. Accident Underwriters' Association [17] ; Reg. v. Marshall; Ex parte Federated Clerks Union of Australia [18] ). Because the business is carried on by a governmental authority, it does not cease to be industry (see Reg. v. Kirby; Ex parte Association of Professional Engineers, Australia [19] ; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [20] ). As the Board is engaged in that industry, the Union is competent to engage in an industrial dispute with it. The dispute to which the Board and the Union were parties concerned terms and conditions of work. It was, therefore, an industrial dispute and as it extended beyond the limits of one State, it came within the scope of s. 51 (xxxv.) of the Constitution.

(1923) 33 C.L.R. 517. 2. (1975) 132 C.L.R. 595, at p. 607. 3. (1959) 107 C.L.R. 208, at p. 232. 4. (1977) 140 C.L.R. 63.

This is sufficient to dispose of the grounds relied upon by the prosecutor. During argument, it was suggested that even if the Board were engaged in the business of insurance or assurance, it was, and some of its employees were, also engaged in what was not that business and in what was not in the industry of insurance. If that were so, it would not take away the power of the Commission to deal with the industrial dispute. It is enough if the Board might have employees in the class of work subject of the disputed claims during the period of operation contemplated by the claims (see Metal Trades Employers Association v. Amalgamated Engineering Union [21] ). It is not necessary in these proceedings to determine whether any particular class of work or employee falls within the scope of the dispute. If an award is made, then questions of whether particular work or employees are covered by the award can be dealt with in proceedings on or in relation to the award.

I have had the advantage of reading the reasons for judgment prepared by my brother Mason and by my brother Gibbs, with both of which I agree. The circumstances of this case are close to, if not at, the utmost limits of the concept of industry as developed by the Court but those judgments and also that of my brother Gibbs in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [22] demonstrate that they do not go beyond those limits.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Parties