R v Holmes; Ex parte Victorian Employers' Federation

The log of claims served on the Association by the Federation was accompanied by a letter dated 12th December 1979 from the Federation to the Association. The first paragraph of the letter was in these terms:

The Victorian Employers' Federation, an Organisation of Employers registered pursuant to the Conciliation and Arbitration Act 1904, hereby demands that the Federated Engine Drivers and Firemen's Association of Australasia, an Organisation of Employees registered pursuant to the said Act, meet the conditions of employment set out in the attached Log of Claims with respect to your present and future members engaged in any capacity within the calling, service, employment, occupation, avocation or industrial pursuit of attending to and/or the driving of any engine, winch, crane, mobile crane, fork lift, tow motor, pile driver, excavator, machine, mechanical plant, pump, boiler, generator, motor or any motor used in or in connection with the generation, production, distribution or utilisation of power and any greasers, cleaners, turners or any other persons assisting same on land, harbour, lake or river employed by the said Victorian Employers' Federation or any of its members in any business and/or enterprise undertaken anywhere throughout the Commonwealth of Australia. The letter went on to state that if the Association did not reply in the affirmative to the demand by 12 noon on 14th December 1979, non-acceptance would be regarded as a refusal of the demand and the creation of an industrial dispute.

These claims are made on the Federated Engine Drivers and Firemen's Association of Australasia and relate to present and future members of that Organisation of Employees registered pursuant to the Conciliation and Arbitration Act 1904. This statement was followed by a series of numbered clauses dealing with topics that are usually regulated by an industrial award. The first of the numbered clauses was in these terms:

An employee shall be paid an amount determined by the employer who will consider the ability of and suitability of an individual employee and the type of work on which such employee is engaged. An hourly rate shall be calculated on the basis of one forty-fourth of the weekly rate prescribed for the work performed.

The clause was followed by clauses dealing with subjects such as juniors and trainees, contract of employment, special rates and allowances, hours of work, aged or infirm workers, non-discrimination in employment, and settlement of disputes. It is unnecessary for me to set out the clauses which follow cl. 1. It is enough for me to say that a number of the following clauses depend for their efficacy on the establishment of the hourly rate and weekly rate referred to in cl. 1.

After hearing argument, Commissioner Holmes decided not to proceed to a finding of a dispute. His decision was based on two grounds. The first ground related to the log of claims. After reciting the opening clause of the log, he said: "That sentence could be construed to mean whatever one wished it to mean. It seems to me to have no regard to the industry and/or existing award coverage that applies or may apply to members of the Association."

The second ground related to the capacity of the Federation to generate an industrial dispute extending beyond the limits of one State. It turns on the provisions of the Federation's constitution, in particular r. 5.

The Federation is an organization of employers registered under the Act. The objects of the Federation as set out in its rules include the furtherance and protection of the interests of its members in the proper conduct of their respective businesses, trades, professions and callings (r. 3 (a)); the promotion of the interests of persons engaged as employers in trade, commerce and manufactures (r. 3(b)); and the taking of such action as may be necessary or advisable to regulate and determine the rates of pay and conditions of employment of employees of members or of employees in the industry either under the Conciliation and Arbitration Acts or under the laws of the States or Territories, and to advise, assist and represent members in industrial matters (r. 3(c)). There are other objects which dispel any suggestion that the Federation's activities are limited to representing in Victoria the interests of its members. These objects indicate that it is in the function of the Federation to represent and pursue throughout the Commonwealth and in each and every State and Territory the interest of its members and of employers of labour generally.

The Federation is formed in or in connection with the clerical industry which without limiting the generality of the foregoing shall include the keeping of accounts and records, the preparation and publication of documents, office organisation and business industrial and professional administration.

Rule 5 deals with membership and conditions of eligibility. The rule defines or describes those who are eligible for membership. Paragraph (a) mentions those who are members at the date of adoption of the rules and who employ or usually employ labour engaged in any clerical occupation. Paragraphs (b), (c) and (d) are in the following terms:

(b) Any person firm or company which usually 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 or has been appointed an Honorary Life Member in accordance with Clause 5a hereof.

After reciting pars. 5(b) and (c), the Commissioner said:

Thus, from its own rules, it is clear that the Federation can only represent its membership in connexion with trade, business profession, occupation or calling carried on in Victoria.

It should be clear from that that it is not possible for the Federation to initiate a log which has interstate characteristics unless it is authorized specifically to do so.

Mr. Henderson was given every opportunity to indicate upon what authority the Federation acted to create an interstate dispute. He chose not to do so. Instead he relied upon the interstateness of six Federation members and claimed that was sufficient to satisfy the requirements of the Act.

It is not sufficient. I have studied the Federation's membership list and whilst it has to be said that many of its members are large undertakings operating in more than one State the address of each is shown as being in Victoria.

That is as it should be in order to comply with the requirements of r. 5(b). Membership of the Federation is a consequence of business, occupation etc. being carried on in Victoria.

Because of the lack of interstateness an industrial dispute within the meaning of the Act cannot be found.

The grounds on which the Federation seeks mandamus are: (1) that the demands made by the Federation were sufficiently certain for the purposes of the Act and the Constitution; (2) that under its rules the Federation can - (a) represent its members in connexion with their trade, business, profession or calling carried on both in Victoria and other States; and (b) make industrial demands with interstate characteristics without the necessity of specific authority to do so in addition to that provided by its rules; (3) that its members have industrial operations both in Victoria and other States; and accordingly the making of the demands by the Federation and the non-acceptance of them by the Association gave rise to an industrial dispute within the meaning of the Act the existence of which the Commissioner was obliged to find and to prevent and settle in accordance with the Act.

I need spend no time on the first ground taken by the Commissioner. Mr. Castan for the Association rightly makes no attempt to support it. The first paragraph of the covering letter from the Federation makes it very clear that the Association was requested to accept the conditions of employment set out in the log of claims with respect to present and future members engaged in the occupations mentioned in that paragraph.

The second ground assigned by the Commissioner requires little discussion. A distinction should be drawn between the Federation's capacity to take action on behalf of its members and the conditions which govern the eligibility of persons to become members of the Federation. We look to r. 3, the object rule, in order to ascertain what are the relevant limits on the Federation's capacity to take action on behalf of its members. Only in the event that there is an ambiguity in r. 3 is it appropriate to look to r. 5 for guidance on an issue going to the Federation's capacity.

It will be perceived from my earlier comments on r. 3 that it raises no doubt as to the Federation's capacity to pursue the interests of its members outside the State of Victoria. It does not attempt to confine the Federation's activities to Victoria; it explicitly authorizes the Federation to further and protect the interests of its members without geographical restraint, specifically recognizing that this function will require action in the Commonwealth of Australia and in the States and Territories. The objects rule proceeds on the not unnatural assumption that those who are employers of labour in Victoria will very likely be employers of labour in other parts of the Commonwealth and that they will have interests outside Victoria which will require furtherance and protection. It would be somewhat surprising if an organization of Victorian employers, established for the purpose of representing and protecting the interests of its members, was so constituted that it was without capacity to act on behalf of its members in relation to industrial claims or demands intended to have an operation in other States as well as Victoria. It would require very plain language to drive me to such an unacceptable conclusion. This is not to say that the language here is other than plain, but it leads me to a conclusion which is contrary to that contended for by the Association. I need only refer to r. 3(c) which confers power on the Federation to take action to regulate and determine rates of pay and conditions of employment of employees under "the Conciliation and Arbitration Acts". Quite plainly this paragraph confers a capacity on the Federation to make a demand which will generate an industrial dispute extending beyond the limits of one State.

Mr. Castan seeks to escape from this conclusion by submitting that r. 5 limits the membership of members to their character as employers of labour in Victoria. The suggested limitation is not only unnatural and uncertain in operation, but has no foundation in the language in which the rule is expressed. Paragraph (a) of the rule does not attempt to confine the membership of the rule to membership in respect of employment of labour in Victoria. The same may be said of par. (b) on which the Association so heavily relies. It makes employment of labour in connexion with a trade, business, etc. in Victoria a condition of eligibility for membership, but, as I read it, it does not attempt to limit the privileges and consequences of membership to the employment of labour in that State.

I reject the Association's submission that par. (b) should be read as if a comma appeared after "occupation" where first appearing, so that the succeeding words in the paragraph govern "Any person firm or company" and limit membership to any trade, business, etc. carried on in Victoria. There are at least two difficulties with the Association's construction of the paragraph. There is no comma. And the ordinary rule is that you take the expression "in connection with" back to the nearest appropriate antecedent, which is either "labour" or "occupation". There is nothing here to indicate that the ordinary rule should be discarded in order to produce a concept of membership for limited purposes for which there is no other support in the Federation's constitution.

Mr. Castan endeavours to support the Commissioner's decision by reference to other grounds not taken by the Commissioner himself. The first additional ground is that the log of claims cannot give rise to an industrial dispute because (a) it seeks to oust the jurisdiction of the Commission; (b) it has no definable ambit and is therefore uncertain. Essentially this argument is based on cl. 1 of the log and its provision that the wage rates shall be determined by the employer. This, according to the Association, is an ouster of the Commission's jurisdiction, an unauthorized delegation of its function in preventing and settling industrial disputes. The argument is that cl. 1, if made the subject of an award, would involve the delegation to the employer by the Commission of its power to determine wages.

This argument assumes that the dispute between the parties is as to the amount of wage rates. If that were the subject of the matter of the dispute it might be said that it is the function of the Commission itself to settle the dispute and that it is an abandonment of that function to delegate determination of the wage rates to someone else. But this is not the case. The dispute is whether the determination of wage rates should be entrusted to employers. If the Commission determines the dispute in favour of the Federation, however unlikely that outcome may seem to be, the Commission discharges its function without delegating any part of it to employers. The dispute is not as to the amount of the wage, but whether the employer will fix the rates from time to time. To decide that dispute in favour of the Federation is not to delegate determination of it to employers.

The decision in Australian Railways Union v. Victorian Railways Commissioners [1] and the observations of Rich, Starke and Dixon JJ. [2] do not support the Association's case. There, the statutory provisions, which were held to be invalid, authorized the settlement of a dispute by a Conciliation Committee once a party applied for the appointment of such a Committee, and deprived the Court of Conciliation and Arbitration of jurisdiction. The Committee was empowered to settle a dispute by issuing a decree arrived at by discussion amongst themselves without any hearing or determination between the disputants. For this reason it was not a law authorized by s. 51 (xxxv.).

1. (1930) 44 C.L.R. 319. 2. (1930) 44 C.L.R., at pp. 384-385.

The Association's next submission is that the log of claims is too uncertain in that, in relation to wages, it creates no definable ambit because, in point of amount, there is no limit to the sum which might be determined as a weekly wage rate. The submission again fails to appreciate that the thrust of cl. 1 lies in the claim that the wage rates shall be determined from time to time by employers. It is therefore not in point to say, as the Association does, that the employer can fix any wage rate. If the Commission were to make an award in the terms of cl. 1, no question of ambit could possibly arise. Such a question can only arise when some disconformity between claim and award emerges.

Implicit in the Association's submission is a misconception of the doctrine of ambit and the purpose which it serves. Its purpose is not to determine the validity of a claim or log of claims, but to ensure that there exists an appropriate relationship between the dispute, especially a paper dispute, and the award which settles that dispute. It must appear that the provisions of the award constitute a settlement, if not a prevention, of an industrial dispute extending beyond the limits of one State. The provisions will have this character in the case of a paper dispute if they are within the ambit or scope of the log of claims. If the provisions are outside this ambit or scope they cannot be characterized as a settlement of the dispute. It has been said that a provision will be within ambit if it is "relevant" or "reasonably incidental" or "appropriate" to the settlement of the differences constituting the dispute or if it has a rational or natural tendency to dispose of the question at issue (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [3] ; Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [4] ). No question of this kind could arise in the present proceedings unless and until the Commission turns its mind to the making of an award in settlement of the alleged dispute.

1. (1938) 60 C.L.R. 507, at p. 538. 2. (1952) 86 C.L.R. 34, at pp. 40-41.

Stripped of the references to ambit, the Association's submission has no content. Clause 1 is sufficiently certain in meaning; indeed, it is not suggested otherwise. The clause seeks to secure the determination of wage rates from time to time by employers.

We are left, then, with the Association's final submission that on the evidence there is no genuine industrial dispute. This submission is founded on several considerations, one being that the Federation cannot reasonably hope that the Commission will make an award in terms of the log of claims, another being that the Federation served the log with a view to securing some collateral advantage in relation to other industrial disputes arising from logs of claims served by the Association on other employer organizations in which the Federation, initially at any rate, was neither a party nor an intervener. The resolution of this submission requires an examination of the history and of facts which in my view is best undertaken in the first instance by the Commission. It is not a question which the Commission has yet examined.

I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I agree with his reasons and his conclusion.

I too would grant the application for a writ of mandamus in this matter, for the reasons given by Mason J.