R v Gough; Ex parte Municipal Officers' Association of Australia

The second matter, the application to make absolute an order nisi for a writ of prohibition or alternatively for a writ of certiorari, is directed to three of the judges of the Australian Industrial Court in relation to proceedings instituted by the Federated Clerks' Union seeking the de-registration of the Municipal Officers' Association under s. 143 of the Conciliation and Arbitration Act 1904, as amended, on the ground that the rules of the Association had not been observed.

In the Commission and in the Industrial Court the substantive issue was the construction or interpretation of the eligibility rule of the Municipal Officers' Association - the Municipal Officers' Association being an association registered under the provisions of the Conciliation and Arbitration Act.

The requirements for eligibility for membership of the Association are set out in r. 5, which reads as follows:

The Association shall consist of an unlimited number of persons employed or usually employed by Local Authorities, Cities, Municipalities, Towns, Boroughs or Shires, or by Statutory Authorities, Corporations, Trusts, Boards and Commissions

It was contended by Mr. Shaw representing the Federated Clerks' Union of Australia that the words "city, town, district, borough or shire" qualify not only the words immediately following but all the other nouns which appear thereafter and that "Statutory Authorities, Corporations " must be engaged in industrial pursuits of a local government character.

Mr. Northrop appearing for the Municipal Officers' Association submitted that by the use of the words "or by" in r. 5 of the Constitution before the words "Statutory Authorities " two alternative groups of employers are created. The first group dealing with local authorities or municipalities. The second group being unlimited in that respect.

I agree with Mr. Northrop's interpretation of the rule. The word "or" joins words while separating meanings and in the absence of some clear indication to the contrary this normal effect of the conjunction "or" should not be departed from. This clear indication to the contrary is not present in r. 5 of the Constitution of the Municipal Officers' Association. As a conjunction the word "or" is usually used to introduce the second of two alternatives.

It is apparent that the word "Statutory" in the second group of employers specified in r. 5 of the Constitution of the Municipal Officers' Association is intended to qualify the word "Corporations", and all the other nouns following as well as "Authorities" especially since r. 3, the Industry Clause, of the Constitution of the Association refers to "Statutory Corporations Industry". Rule 3 reads:

The Association is formed in connection with the Local Government Municipal and Statutory Corporations Industry.

Sir Owen Dixon said in R. v. Hickman; Ex parte Fox and Clinton [1] , when interpreting the expression "coal-mining industry":

The question raised is one which, it might be thought, would turn upon the common understanding, among people concerned with the coal industry and particularly with industrial matters, of the manner in which the words "coal-mining industry" are ordinarily applied. The ordinary meaning of "Statutory Corporation" is a corporation owing its incorporation to a statute and would include a university incorporated by act of Parliament and would thus include the eight universities upon which the log of claims was served. 1. (1945) 70 C.L.R. at p. 613.

The order nisi for mandamus directed to the Commission should be made absolute and the Commission should proceed to hear and determine the industrial dispute between the Municipal Officers' Association and the universities. It follows that the order nisi for a writ of prohibition directed to the Industrial Court should be made absolute.

These two matters arise in the course of a dispute between two industrial organizations, the Municipal Officers' Association of Australia and the Federated Clerks' Union of Australia, which for convenience may be referred to as the Association and the Union respectively. The question at issue in the dispute is whether persons employed on the staffs of eight universities, other than members of the academic staffs, are eligible to be members of the Association. The universities concerned are the following: Monash University, The University of Melbourne, La Trobe University, The Flinders University of South Australia, The University of Adelaide, University of Queensland, Griffith University and James Cook University of North Queensland.

The Association served on each of the universities a letter of demand annexing a log of claims in the form of an award described as the "Municipal Officers' (Universities Staffs) Award 1974". The log related to salaries and conditions of employment for persons employed on the staffs (other than the academic staffs) of the universities concerned. The universities did not accede to the demands contained in the letters of demand and log of claims and the Association, in intended compliance with s. 25 of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"), notified the Australian Conciliation and Arbitration Commission of the existence of an industrial dispute. Pursuant to this notification the matter came before the Commission, which was then called upon to determine, under s. 24(1) of the Act, whether there was an industrial dispute and, if so, who were the parties and what were the matters in dispute. It is clear that no industrial dispute could have existed between the Association on the one hand and the eight universities on the other unless the group or class which the Association sought to represent in serving the letters of demand - namely, the members of the staffs of the universities (other than the members of the academic staffs) - were eligible to be members of the Association. The question whether the persons constituting that group or class were eligible to be members of the Association depended entirely upon the proper construction of the rules of the Association. The Commission, after hearing argument, came to the conclusion that an industrial dispute did exist between the Association and the universities and on 9th September 1974 made a finding that such a dispute existed.

Before the matter had proceeded further in the Commission the Union made application to the Australian Industrial Court under s. 143(1) of the Act for an order directing the cancellation of the registration of the Association on the ground that the rules of the Association, "in so far as they provide for a matter in accordance with the prescribed conditions", had not been observed. The case presented on behalf of the Union was that the Association was in breach of its rules in purporting to enrol as its members persons employed on the staffs (other than the academic staffs) of the universities. There can be no doubt that the rules of the Association, in so far as they make provision as to the eligibility for membership of the Association, do "provide for a matter in accordance with the prescribed conditions" within the meaning of s. 143(1)(c) of the Act; see s. 132(2) of the Act and reg. 115(1)(d) of the Conciliation and Arbitration Regulations. It was not in dispute that the Association was purporting to enrol members of university staffs (other than academic staffs). The question that therefore fell for decision by the Industrial Court was whether such persons were eligible to be members of the Association; if they were not, the Association would not be observing its rules in purporting to enrol them. The Industrial Court reached the conclusion that the members of the university staffs in question were not eligible to be members of the Association and that the Union had established grounds for the order which it sought. On 29th October 1974 it published its reasons for reaching this conclusion and adjourned the proceedings, reserving liberty to either party to have the matter restored to the list, with a view to the Association undertaking that it would cease to enrol as members persons employed on the staffs (other than the academic staffs) of universities.

On 4th November 1974, in deference to the decision of the Industrial Court, the Commission revoked its finding that an industrial dispute existed.

The Association now seeks to have made absolute orders nisi respectively for a writ of mandamus directed to the Commission and for a writ of prohibition or alternatively for a writ of certiorari directed to the Industrial Court. The submission on behalf of the Association is that the Commission had wrongly declined to proceed to hear and determine the matter before it and that the Industrial Court had no jurisdiction to hear and determine the application by the Union or alternatively fell into error in dealing with that application. In each case, before it can succeed the Association must establish that upon the proper construction of its rules it may lawfully enrol as its members persons employed on the staffs (other than the academic staffs) of the eight universities.

The rules of the Association that deal with the industry in respect of which it is registered and with the conditions of eligibility of its members are the following:

The Association is formed in connection with the Local Government Municipal and Statutory Corporations Industry.

The Association shall consist of an unlimited number of persons employed or usually employed by Local Authorities, Cities, Municipalities, Towns, Boroughs, or Shires, or by Statutory Authorities, Corporations, Trusts, Boards or Commissions, in the following callings or avocations namely, City, Town, District, Borough or Shire Clerks, Secretaries, Treasurers, Engineers, Surveyors, Architects, Electricians or Electrical Engineers, Inspectors, Superintendents, Paymasters, Receivers, Accountants, Auditors, Valuers, Rate Collectors, Registrars, Collectors, Clerks, Typists, Stenographers, Foremen, Overseers, Draughtsmen, Curators, or in similar callings or avocations, or as assistants to employees so employed whether employed as aforesaid or not together with such other persons as have been appointed Officers of the Association and admitted as members thereof.

The contention on behalf of the Association is that the members of the university staffs in question are persons employed by statutory corporations, it being conceded that the adjective "statutory" in r. 5 governs not only "authorities" but also inter alia, "corporations". It is submitted that the words "statutory corporations" simply mean corporate bodies which are created by statute and whose powers are conferred by statute. It is common ground that each of the universities concerned is constituted by a statute which provides that the university shall be a body corporate and proceeds to endow it with legal capacity. Therefore, it is submitted, each university is a statutory corporation within the natural meaning of the words of the rule.

The argument of the Association as to the meaning of r. 5 cannot be accepted. We are not concerned to discuss what ambit the words "statutory corporations" might have had if they had appeared alone or in another context. If it were right to sever the words "Statutory Authorities, Corporations, Trusts, Boards or Commissions" from the rest of r. 5, and to construe them as meaning any authority, corporation, trust, board or commission constituted under statute, the condition of membership stated by the rule would be extremely wide and indefinite and the rule would permit the Association to enrol as its members persons employed by all sorts of bodies, public and private, whose only common characteristic would be that they were set up under the provisions of a statute. Such a result would not be likely to have been intended. However, it is not permissible to construe those words in isolation; in accordance with ordinary principles they should if possible be given a meaning that will render them harmonious with the rest of the instrument in which they appear. If statutory authorities and corporations within the meaning of r. 5 included all authorities and corporations set up by statute, they would embrace all the "Local Authorities, Cities, Municipalities, Towns, Boroughs, or Shires" previously mentioned, because in Australia today such instrumentalities of local government are constituted under statutory provisions; the result would be that the earlier words of the rule would be rendered quite superfluous. In the context of the rule the generality of the words "Statutory Authorities, Corporations, Trusts, Boards or Commissions" must be limited by the other words, earlier and later, with which they are associated, and which show that they were intended to have some flavour of local government. This is not to ignore the words "or by" on which the Association so strongly relies; those words introduce a new class, but it is a class not unconnected with that earlier described. Moreover, the context provided by r. 3 provides further assistance in resolving the ambiguity in r. 5. Although it is established that the conditions of eligibility of a registered organization may validly extend beyond the industry in respect of which the organization is registered, that is no reason why, in attempting to place a meaning on ambiguous words in the eligibility clause, any assistance provided by the industry clause should be rejected: see per Barwick C.J. in Reg. v. Watson; Ex parte Australian Workers' Union [2] . The industry clause in the present rules (r. 3) supports the conclusion that the statutory corporations mentioned in r. 5 form part of one "industry" whose other parts are local government and municipal bodies. In the context provided by rr. 3 and 5 it is apparent that the expression "statutory corporations" must be limited to corporations exercising functions of a public nature in some way analogous to those exercised by local authorities.

Indeed, the argument submitted on behalf of the Association is contrary to the views expressed in this Court in Melbourne and Metropolitan Tramways Board v. Municipal Officers Association of Australia [3] , where the Court rejected the contention that the registration of the Association was invalid on the ground that the description (in r. 3) of the industry in connexion with which it was registered was meaningless and invalid. In the course of his judgment Rich J. referred to rr. 3 and 5 together for the purpose of determining the meaning of r. 3, and said [4] :

To ascertain the scope of the amended description of the organization, it is legitimate to take into account any relevant provisions of its rules. The short phrase in the title is "Local Government Municipal and Statutory Corporations." The expanded phrase in the rules is "local Authorities, Cities, Municipalities, Towns, Boroughs or Shires, or Statutory Authorities, Corporations, Trusts, Boards, or Commissions." The local authorities specified are all authorities exercising functions of a public nature; and when the phrase "statutory corporations" or "statutory authorities, corporations, trusts, boards, or commissions" is found in such a collocation, I think that the natural and reasonable inference is that what is meant is bodies of a public character exercising functions of a public nature analogous to those of local government bodies, and not private bodies established by or under statute, whether public or private, for the purpose of conducting private enterprises or activities. McTiernan J. expressed a similar opinion [5] . The other members of the Court, Latham C.J. and Starke J., were less specific but their remarks [6] do not indicate any disagreement with these views. 1. (1944) 68 C.L.R. 628. 2. (1944) 68 C.L.R., at p. 637. 3. (1944) 68 C.L.R., at p. 641. 4. (1944) 68 C.L.R., at pp. 634, 640.

For the purposes of determining the present matters it is unnecessary and therefore undesirable to attempt to define the full scope of the words of r. 5. Once it is accepted, as it must be, that the words "statutory corporations" in r. 5 refer only to corporations of a public character exercising public functions analogous to those of local government bodies it becomes clear that persons employed on the staffs of universities are not eligible to be members of the Association and that both applications made on behalf of the Association must fail.

In relation to the application for prohibition directed to the Industrial Court a subsidiary argument advanced on behalf of the Association was that the Industrial Court should have treated itself as bound by the determination of the Commission that there was an industrial dispute - a determination that could only rightly have been made if the members of the university staffs in question were eligible to be members of the Association. This argument was based on the provisions of s. 60(2) of the Act. There are a number of answers to this contention but it is sufficient to say that the Commission, in revoking its finding, was acting within the power conferred by s. 24(1) of the Act and that the finding having been revoked - and correctly revoked - it would be a futility - indeed ridiculous - to hold that it was wrong for the Industrial Court on 29th October to make a decision which it would have been bound to make after 4th November.