R v Gough; Ex parte Australasian Meat Industry Employees' Union [1965] HCA 52;

R v Gough; Ex parte Australasian Meat Industry Employees' Union [1965] HCA 52; - HCA 1965 case summary — Zoe

[41]

37. Although the Board by becoming a member of the Federation does agree to pay subscriptions and levies which must, of course, be provided out of its funds, this, in my opinion, is not really a case in which the Board is attempting to deal with its property in a manner which is incompatible with its own statutory objects or purposes or which will impair its capacity to perform its statutory functions. Being a member of the Federation, allowing for all the consequences which legally could flow from its membership, does not seem to me to be incompatible with the performance of its functions or the exercise of its powers. The most that can be said, it seems to me, is that the Board may be called upon to pay a subscription or levy which might be greater than it otherwise would be called upon to pay or which indeed it might not otherwise be called to pay at all, because of the pursuit by the Federation of one or more of these disparate objects. But although this might considerably reduce the funds at the disposal of the Board for expenditure in the performance of its duties or the exercise of its powers, it is scarcely conceivable that the amounts thus required of the Board would impair its capacity to run the abattoirs to the full and efficient extent required by its statute and the circumstances of the area and the interests which the abattoirs serve. The promise to pay subscriptions and levies is itself not relevantly a dealing with the Board's property. In my opinion, neither that promise itself, nor the consequences of performing it, is or are incompatible with the duties and powers given under the Act. Thus, in my opinion, cases as to whether or not the disposal or attempted disposal by a corporation of its property or of any right therein is incompatible with the performance of its statutory obligations or precludes the exercise of its powers and therefore, ultra vires, the corporation, are not in point. Such cases deal with the undoubted principle that a corporation may not so deal with its property as to deprive itself of its capacity to perform its obligations or to exercise its powers: see Birkdale District Electric Supply Co. v. Southport Corporation (1926) AC 355 and British Transport Commission v. Westmorland County Council (1958) AC 126 and cases there dealt with The question which may arise in such cases as to the basis upon which the Court should determine the compatibility or incompatibility of what is proposed to be done, with the performance or exercise of the corporate duties and powers, that is to say, whether it is to be decided upon reasonable probabilities as matters presently stand or upon the theoretical possibilities, does not arise in this case. (at p409)

[57]

4. However, the problem is not simply whether the Board may combine with other employers in the industry for the protection of its industrial interests; the question is of a more particular character. It is whether the Board has capacity to join an organization having the aims and objects of the Federation. Detailed reference to the aims and objects of the Federation has also been made by Owen J. and it is clear beyond doubt that the objects of the Federation extend far beyond the protection of the industrial interests of its members. The term "meat industry" is defined by its constitution to mean "all activities of traders and employers in connexion with the handling of animals for slaughter, slaughtering, treatment, delivery and/or sale of meat . . . meat products, or offal, or by-products of meat or of the carcases of any animals slaughtered or received for treatment". Its foremost object is "To protect and promote the interests of Master Butchers and of employers in the meat and allied trades generally", and the word "interests" in this object must be taken to include trading interests as well as industrial interests. Its objects include the discussion and consideration of matters affecting the industry and the collection and dissemination of such information relating thereto as may be calculated to be of use to producers, consumers, distributors and the public generally, the promotion of or opposition to legislative and other measures affecting or likely to affect the meat industry, the printing and publishing of newspapers and periodicals for the spreading of information with respect to matters having relation to the objects of the Federation and the carrying on of any business in connexion with or relating to the meat industry, whether manufacturing, distributing, importing or otherwise, which may seem to the Federation to be of benefit to the members thereof or to be calculated directly or indirectly to enhance the value of or render profitable any of the Federation's property or rights. I forbear to mention other objects extraneous to the functions and powers with which the Board is invested for it sufficiently appears from what has already been said that the Federation is an organization designed and intended to advance the interests generally of those engaged in the meat industry as defined and that its members are bound loyally to support the policy of the Federation with respect generally to these matters as it may be declared from time to time. If this latter proposition were not already clear it becomes abundantly clear from the provisions of r. 7 (b) which provides that: "The membership of any member shall terminate - upon the passing by the Federal Executive Committee of a resolution that the name of the member be removed from the Register of Members on the ground that the member . . . has acted contrary to the interests of the Federation". (at p414)

[61]

2. In April 1964 the Board, which had theretofore been subject in its relations with its employees to an industrial award made pursuant to the law of Queensland, applied to become a member of the Federation. The Federation purported to admit it to membership. By becoming a member - if it did validly become a member - it subjected itself, and its employees in their relations with it, to the jurisdiction of the Commonwealth Conciliation and Arbitration Commission, and it and they became bound by the Federal Meat Industry Award 1959 as varied from time to time. The prosecutor, an organization of employees, contends that the Board did not become a member of the Federation because, it is said, it had no capacity to do so, that therefore its purported joining of the Federation was utterly devoid of legal consequence. The question posed in argument was not whether the Board, having regard to its objects, could with propriety join the Federation or whether it might be restrained from doing so. It was whether it had a capacity in law to become a member. The argument, clearly presented, that it had not was based broadly upon the principle expressed by the Earl of Birkenhead in Birkdale District Electric Supply Co. v. Southport Corporation (1926) AC 355, where his Lordship spoke of "a well established principle of law, that if a person or public body is entrusted by the Legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties" (1926) AC, at p 364 The argument showed that the question could have far-reaching consequences in industrial law, for there are I imagine a great many corporations - some created pursuant to the Companies Acts, some by statutes, private or public - which are at present considered to be members of various employers' organizations registered under the Conciliation and Arbitration Act or which may in the future seek to become members of such organizations. (at p416)

[62]

3. But, important though a decision of this case might perhaps be for other persons, an enactment of the Queensland Parliament passed since the date of the hearing of this case has, as I read it, made the matter no longer important for the parties to this case. It seems to me to have cut away the ground on which the prosecutor sought to stand. For that reason I think that the prohibitions asked for should be refused. But I do not wish to be taken as thinking that, if the law had not been altered, the prosecutor's argument must have succeeded. Of that I am not satisfied. But, as in the circumstances it seems unnecessary to pass upon a question that has (except in so far as it affects the costs of these proceedings) become academic, I merely make the following observations. A corporation having statutory authority to conduct as an employer an industrial undertaking in Australia has I think power, unless expressly prohibited, to join an industrial organization of employers registered under the Commonwealth Act. To do so can, I consider, fairly be regarded as incidental to, or consequential upon, the statutory duty or authority to conduct the enterprise: see Attorney-General v. Great Eastern Railway Co. (1880) 5 App Cas 473, at p 478 On this aspect, it seems to me to be generally speaking immaterial whether the corporation's enterprise or undertaking be conducted in the interests of the public, or as a private business for the profit of shareholders: see the Professional Engineers' Case [1959] HCA 47; (1959) 107 CLR 208, and also the remarks of Ungoed-Thomas J., which I adopt, in Charles Roberts & Co. Ltd. v. British Railways Board (1965) 1 WLR 396 The only question then is whether membership of the particular association of employers, the Federation, is beyond power because of the nature of that association. In considering this it is of course relevant to consider the rules of the Federation and the obligations that membership of it may entail. But it seems to me that is not the sole consideration. Doubtless anyone who becomes a member of a corporation, quasi-corporation or voluntary association, does so subject to the contingency that by alteration of its constitution or rules the body may be greatly changed in character. The decision in Thellusson v. Viscount Valentia (1907) 2 Ch 1, is a reminder of that Moreover, without any alteration of its constitution, the body may be able to engage in activities different from, and perhaps only remotely related to, those which had seemed to be its main purpose: see e.g. H. A. Stephenson & Son Ltd. v. Gillanders, Arbuthnot & Co. [1931] HCA 47; (1931) 45 CLR 476; Anglo-Overseas Agencies Ltd. v. Green (1961) 1 QB 1 But in the case of an association registered as an organization under the Conciliation and Arbitration Act the risk that a corporation by becoming a member may be involved in activities foreign to its own purposes is lessened by the provisions of s. 140 of the Act, and a right to resign on three months' notice and payment of dues is ensured by the Act (s. 145). And in the present case the Rules of the Federation, cl. 18 (a) (ii), expressly enable some of the members to be relieved from a liability to pay any particular subscription of fees. It seems to me one must assume that this power would be exercised so as not to require the Board to pay any levy or subscription the payment of which would be unlawful on its part or embarrassing to it in the performance of its public functions. It seems appropriate at this point to refer to Lord Wrenbury's observations in the case of the Birkdale District Electric Supply Co. (1926) AC, at p 376, that, as adapted to this case, indicate that if the Board found its membership became oppressive in any particular and went to the committee of the Federation asking to be released from the fetter of its contract, it would be competent it seems for the committee to agree. There was no permanent fetter which put an end to the Board's exercise of its statutory powers. (at p417)

[70]

6. Speaking in more or less general terms, the functions of the Board, as set out in The Abattoirs Acts, are to manage and maintain the public abattoir for the Metropolitan Abattoir Area, as defined by the Act, and to manage and maintain all public saleyards and the public meat market established in connexion with that public abattoir (s. 12). It is required also to establish, manage and maintain public abattoirs, public saleyards and public meat markets for public abattoir areas constituted under the Act other than the Metropolitan Abattoir Area (s.12). It may, if it thinks fit, establish and conduct abattoirs and saleyards for the sale of cattle in any part of the Metropolitan Area, establish and conduct works for canning, preserving, chilling or freezing meat, and slaughter cattle on behalf of others (s. 13 (1)). It has power to borrow money for the purpose of exercising its powers and discharging its functions (s. 13 (1A)) and it may make charges for the use of its property or for services performed by it (s. 14). All moneys received by it are to be used to form a fund out of which are to be defrayed inter alia the salaries and wages of its employees, the expenses of establishing, managing and maintaining the public abattoirs, saleyards etc. under its control and all other expenses incurred in carrying out its duties (s. 16). The Governor in Council may, from time to time, direct it to make an investigation into and report upon matters affecting the meat industry in Queensland (s. 21). Where it satisfies the Governor in Council that cattle are not being supplied for slaughtering in sufficient numbers to meet the reasonable requirements for meat of consumers in the Metropolitan or any other public abattoir area, it may be authorized by an Order in Council to acquire the cattle or meat specified in the Order and thereupon the property in such cattle or meat is divested from the owners thereof and vested in the Board (s. 87). A wide regulation-making power is given by s. 88 but no regulation that could have any bearing on the matters in question in these cases has been made. (at p420)

[71]

7. It is clear that to carry out its functions the Board must employ labour and, having regard to the existence in Australia of the Federal and the various State industrial arbitration systems, I am of opinion that where a body, be it a government instrumentality or not, is set up by an Act of Parliament with authority to conduct industrial operations and to employ labour for that purpose, it is proper - in the absence of provision to the contrary - to read the Act as impliedly authorizing the body concerned to become a member of an organization of employers formed for the purpose of representing the interests of its members in disputes between employer and employee and in all those matters which fall within the ambit of the Federal and State industrial arbitration laws. No such contrary provision is to be found in The Abattoirs Acts and I do not, therefore, agree with the broad submission made by counsel for the Union that it would not be within the powers of the Board to join an organization of employers the purpose of which was to act on behalf of its members in such matters. But that does not dispose of the present cases since the objects of the Federation, as set out in its Constitution, go far beyond that. They include, for example, the promotion of or opposition to legislation and other measures affecting or likely to affect the meat industry (cl. 4 (j)); the printing and publication of newspapers and periodicals "for the spreading of information with respect to matters having relation to the objects of the Federation" (cl. 4 (k)); the carrying on "of any business in connexion with or relating to the meat industry, whether manufacturing, distributing, importing or otherwise, which may seem to the Federation to be of benefit to the members thereof or to be calculated directly or indirectly to enhance the value of or render profitable any of the Federation's property or rights" (cl. 4 (m)); the acquisition of the business, property and the undertaking of the liabilities of any person "carrying on any business which the Federation is authorized to carry on, or possessed of property suitable for the purposes of" the Federation (cl. 4 (n)); the acquisition by purchase, lease, licence, hire or otherwise of real or personal property of any kind in furtherance of the objects of the Federation (cl. 4 (c)); the construction, maintenance and alteration of "buildings, works, plant and machinery necessary or convenient for the purpose of the Federation" (cl. 4 (p)); the establishment and conduct of a club "for the accommodation of members of the Federation and their friends", the provision of club premises and the obtaining of liquor licences for such premises (cl. 4 (v)); the affiliation with or promotion of associations or companies having objects similar to those of the Federation, the acquisition of shares and interests and the lending of money to any such associations or companies (cl. 4 (x)); the adoption of "any additional objects from time to time" (cl. 4 (aa)); and the raising of moneys "for all the purposes and objects of the Federation" by means of subscriptions of members and such levies as may be made and such fines as may be imposed upon members (cl. 4 (f)), the amount of subscriptions, levies and fines being a matter for the discretion of the Federation or of its Committee in which is vested its management and control. The position is then that a person who becomes a member of the Federation thereby becomes contractually bound to pay such subscriptions, levies and fines as are determined by the Committee and the moneys thus raised may be used for all or any of the purposes and objects of the Federation. (at p422)

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

R v Gough; Ex parte Australasian Meat Industry Employees' Union [1965] HCA 52; (1965) 114 CLR 394 (14 October 1965)

Parties

Legislation Cited (1)

Cases Cited (3)