R v Holmes; Ex parte Public Service Association

R v Holmes; Ex parte Public Service Association - [1977] HCA 70 - HCA 1977 case summary — Zoe

[12]

In proceedings which are pending before the Australian Conciliation and Arbitration Commission ("the Commission"), the Australasian Transport Officers' Federation ("ATOF") has sought the making of an award which would make provision for the wages and conditions of service of officers employed by the Commissioner for Motor Transport of the State of New South Wales. For the purpose of creating an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"), ATOF followed the traditional procedure of serving a letter of demand, and an attached log of claims, upon a number of employers in various States, including the Commissioner for Motor Transport. The industrial dispute was said to have come into existence when the recipients of the letter of demand failed to comply with its requirements. The Commission determined under s. 24 of the Act that a dispute existed and proceeded with the hearing of the application for an award. It appears that for many years male officers of the Department of Motor Transport have been members of ATOF and have been covered by a federal award but female officers have been members of the Public Service Association of New South Wales ("the Association") and covered by a State award. However the award now sought by ATOF would apply to female officers as well as to males. The prosecutors, the Association and its secretary, Mr. Hammond, now seek a writ of prohibition to restrain the Commission, ATOF and the Commissioner for Motor Transport from proceeding further in the matter in so far as it relates to employees of the Commissioner for Motor Transport engaged in clerical and administrative work. The prosecutors contend that no industrial dispute has arisen, and that the Commission accordingly lacks jurisdiction, for two reasons, namely, (1) because the Commissioner for Motor Transport is not an employer in an industry; and (2) because ATOF is not entitled under its rules to enrol as members employees of the Commissioner for Motor Transport who are engaged in clerical and administrative work and is therefore unable to make on behalf of such employees a demand which can give rise to an industrial dispute.

[35]

It is convenient to deal at once with the submission that the employees of the Commissioner for Motor Transport who are engaged in clerical and administrative work are not eligible to become members of ATOF. It is plainly right to say that such employees are not employed "in the transport industry". Those words in their natural sense mean the work or business of carrying persons or goods. I shall later deal with the question whether the work of the Commissioner for Motor Transport is incidental to the transport industry, but whatever may be the answer to that question the employees engaged in clerical and administrative work for the Commissioner for Motor Transport are not employed in that industry. The Commissioner for Motor Transport does not conduct the business of carrying persons or goods; it provides no transport. However the rule goes on to include persons employed at an annual salary rate by the Commissioner for Motor Transport. On behalf of the Association it was submitted that in this clause the word "including" should be read, not as a word of extension, but as meaning "such as", and that it was inserted out of an abundance of caution to cover the employers specifically mentioned, provided that they are in the transport industry. There are a number of reasons why I feel bound to reject this submission. In the first place the result would be to render the words "the Commissioner for Motor Transport (New South Wales)" in par. 1 (a) of the eligibility rule nugatory for all practical purposes. It may be that there are a few employees of the Commissioner for Motor Transport who drive the Department's cars or its aircraft but it is difficult to suppose that the reference to the Commissioner for Motor Transport was designed to bring in a few individuals whose position so far as the Department generally is concerned would be quite exceptional. Then the fact that, by par. 2, it was thought necessary expressly to exclude persons employed in a professional capacity by the Superintendent of Motor Transport (an expression which must now be understood as referring to the Commissioner for Motor Transport) indicates that it was considered that if it had not been for this exception such persons would have been eligible to be members of ATOF by virtue of par. 1 (a). In other words, par. 2 (b) (i) was drafted on the assumption that the word "including" in par. 1 (a) was extensory in effect. In the course of argument counsel pointed on the one hand to the words of par. 1 (b), and on the other hand to the qualified reference to the Board of Land and Works, but in my opinion neither provision throws any light on the present question. I would add that rules of this kind should not be subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers, and should not be restrictively construed.

[42]

It has been held that "the industrial quality of a dispute may derive either from the industrial nature of the activity carried on by the employer or from the essentially industrial character of the work performed or to be performed by the employee": see Pitfield v. Franki [13] , per Barwick C.J. The work performed by the employees in the present case was clerical and administrative work. Such work is in my opinion of a neutral character; it may or may not be industrial, depending on the circumstances. A suggestion that s. 51 (xxxv.) is confined to work of a manual character was rejected in Proprietors of The Daily News Ltd. v. Australian Journalists' Association [14] . Since that decision, clerks employed by banking and insurance companies, and by a credit union, have been held to be capable of becoming parties to an industrial dispute: Australian Insurance Staffs' Federation v. Accident Underwriters' Association [15] ; Reg. v. Marshall; Ex parte Federated Clerks Union of Australia [16] . However it was said by Starke J., when sitting as an Acting Deputy President of the Arbitration Court, "that officers in the administrative branches of the States, such as clerks in the Treasury, in the Lands Department and in the Law Department are not engaged in, or in connexion with, any industry and are not persons over whom the Commonwealth Arbitration Court could have any authority whatever", and this passage was cited by Dixon C.J. in Ex parte Professional Engineers' Association [17] , with the comment that it "forms an apt contemporaneous statement of the inapplicability of the federal industrial power to the administrative services of the States notwithstanding the interpretation placed upon it in the Engineers' Case [18] ". In the same case Dixon C.J. said [19] , that it would not be inconsistent with the decision in that case for the Commission to exclude officers "not in fact concerned with anything but bare administrative service to the State unconnected with any kind of constructional work or preparation for constructional work or with any other matter which might be regarded as providing a sufficient connexion with operations that might be described as industrial within the meaning of s. 51 (xxxv.)". In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria [20] , Latham C.J. said:

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