R v Industrial Registrar of the Commonwealth Court of Conciliation and Arbitration [1918] HCA 80

R v Industrial Registrar of the Commonwealth Court of Conciliation and Arbitration [1918] HCA 80 - HCA 1918 case summary — Zoe

[20]

tion of the industry in connection with which the organization was registered. The last mentioned change was to consist of striking out the words "an unlimited number of employees engaged in or in connection with the coal and shale industry, together with such other persons, whether employees in the industry or not, as have been appointed officers of the Federation and admitted as members thereof registered in connection with the coal mining industry," and substituting the words "an unlimited number of employees engaged in or in connection with the coal, shale, metalliferous, coke making, and coal lumping industries or pursuits or industries or pursuits auxiliary to or complementary of the said industries or pursuits, together with such other persons. whether employed in such industries or pursuits or not, as have been appointed officers of the Federation and admitted as members thereof, registered in connection with the coke making, coal lumping. coal, shale, and metalliferous mining industries." Both the changes were objected to by the Sulphide Corporation Ltd. and a number of other mining companies carrying on business at Broken Hill. The grounds of the application for the change of the constitution were community of interest between metalliferous miners and coal miners, &c., and other such grounds of policy and expediency in favour of the amalgamation of the unions. The grounds of objec- tion made by the companies comprised also grounds of policy and expediency against the amalgamation of the unions. The grounds on both sides are set out in the judgment of Barton J. hereunder. As to the change of name, the grounds of the application and of the objection to the change were the same as those with respect to the change of the constitution. The Registrar fixed a day for the hearing of the applications and of the objections. It appeared that, on the hearing of an application by another organization for the change of its name and constitution and of objections thereto, the Industrial Registrar had indicated his intention, following the

[57]

The grounds of objection are as follows : - " (1) (a) They" (the objectors) '' deny that any of the grounds upon which the application for such change is founded being the grounds numbered 1 to 5 inclusive in such application are true in substance or in fact; () the industries or pursuits set out in the change of constitution now applied for do not form an 'industry' or 'a group of industries' within the meaning of the Commonwealth Conciliation and Arbitra- tion Act 1904-1915. (2) That with respect to the majority of the employees who will have the right to belong to the applicant organization by reason of the change of constitution now sought, if such change be granted, there are organizations to which they might conveniently belong which have already been registered, namely, the Barrier Branch of the Amalgamated Miners' Associa- tion, the Waterside Workers' Federation, the Australian Workers' Union, the Federated Mining Employees' Association, the Federated Seamen's Union of Australasia, the Federated Engine Drivers' and Firemen's Association of Australasia, the Amalgamated Society of Engineers, the Australasian Society of Engineers, and the Australasian Institute of Marine Engineers. (3) The majority of the employees of the objectors . . . affected by the change of constitution now applied for are or have until recently (when they or some of them purported to become members of the applicant organization) been members of the Barrier Branch of the Amal- gamated Miners' Association at Broken Hill, an organization registered under the Commonwealth Conciliation and Arbitration Act, and such organization is and its members are now and have since the 16th day of June 1916 been working under an award of this Honourable Court made on that date, whereby certain minimum rates of wages and conditions of employment were prescribed, and certain duties and obligations were imposed on the said organization and its members and also on the respondents pursuant to under- takings therein set forth. The change of constitution now sought (if granted) and the results which will follow therefrom will have the effect of rendering the said award difficult to enforce and may also

[58]

have the effect of rerdering the undertakings upon which it was based absolutely ineffectual, and of leading to other disputes and difficulties. (4) That the prescribed conditions for a change of constitution have not been complied with. (5) (a) The original registration of the applicant as an organization was invalid and ineffective for that Condition I. (m) of Schedule B of the Common- wealth Conciliation and Arbitration Act was not complied with ; (b) the applicant is not an organization within the meaning of the Commonwealth Conciliation and Arbitration Act 1904-1915. (6) (a) The change of the constitution applied for is not in accordance with the law and/or is not authorized by the original constitution and rules of the applicant organization or any valid amendment of such constitution or rules ; (6) no valid amendment of the original con- stitution has been made or is permissible under such constitution or original rules. (7) (2) No manner of or condition for an organiza- tion changing its constitution has been validly prescribed within the meaning of sec. 584 of the Commonwealth Conciliation and Arbitration Act 1904-1915 ; (b) reg. 17a set out in Statutory Rules 1915, No. 89, is ultra vires or alternatively is ultra vires in so far as it purports to provide for or permit the Registrar to do anything further than to record a valid change in the name or constitution of an organization ; (c) that the said reg. 17a is ultra vires in so far as it purports to confer jurisdiction on the Registrar to decide whether a change in the constitution of an organization shall be made ; (d) if the said reg. 17a be intra vires the rules of the organization are in conflict therewith and the organization has purported to change its constitu- tion in manner inconsistent with such regulation. (8) The objectors will also contend that the Registrar should decide not to grant the application for that (inter alia): (a) the application is opposed to the scheme of the Commonwealth Conciliation and Arbitration Act 1904-1915 ; (b) to grant the application would not be in the interests of the public of Australia or of industrial peace and would tend to enlarge the area of many disputes."

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The regulation directs that an application for the change of the constitution of an organization shall be in a prescribed form, and shall be made to the Industrial Registrar or Deputy Industrial Registrar. It prescribes the fees to be paid and the procedure to be adopted by the applicant, and provides that an objection may be taken by an organization or person interested and prescribes the procedure to be adopted by the objector. Finally it enacts : - " (7) The Registrar shall fix a day for hearing the application, and shall give notice thereof to the applicants and the objectors. On the hearing the Registrar shall bear the parties or their officers if they are present and desire to be heard, and shall decide the matter."

It is said that the regulation does not prescribe any condition within the meaning of sec. 58a and that until conditions are pre- scribed there can be no change of constitution. In our opinion the regulation does all that is necessary to comply with the provisions of sec. 58a. Tt does not purport to affect the ministerial duty of recording the change which is imposed on the Registrar, but it prescribes the manner in which the change shall be made, namely, by means of an application to the Registrar, and the condition on which it shall be made, namely, the obtaining in the prescribed manner his approval of or assent to the proposed change. The regulation directs him to decide whether the change shall be made or not, the section compels him to record the change if, and only if, he decides that it shall be made. Much argument was addressed to us as to the nature of the objections which might be taken to the change of constitution, and many ingenious limitations were suggested. In our opinion the objector is at liberty to take any objection that he thinks fit to take, and the Registrar must consider every objection so taken. Having considered all objections, his duty is to determine whether in his opinion it is desirable that the change should be made or not. We do not think thet any fetter is imposed on his discretion beyond this, that he should honestly give to every objection the weight to which he thinks it is entitled. The object of the regulation is to interpose the discretion of the Registrar between the desire of the organization to change its constitution and the ministerial act of recording the desired change.

At a glance

Court

Decision date

Before

Source

Judgment (114 paragraphs)