R v Portus; Ex parte Federated Clerks Union of Australia

R v Portus; Ex parte Federated Clerks Union of Australia - [1949] HCA 53 - HCA 1949 case summary — Zoe

There are two objections to jurisdiction upon which the union relies. One objection is that there is no inter-State dispute between the Federation and Qantas. The Federation has a large number of members but of these only ninety-eight in New South Wales and four in Queensland are employees of Qantas. It is therefore said that there cannot be a real inter-State dispute between the Federation and Qantas. The dispute, however, is as to the terms upon which Qantas may employ persons in any State in which Qantas carries on operations. In fact Qantas operates in the States of New South Wales, Victoria and Queensland. The dispute exists in New South Wales and Queensland. It may justly be said that the extension of the dispute from New South Wales into Queensland is small and almost minimal in character. But both the Federation and Qantas exist in New South Wales and in Queensland and there is a dispute between them in each State, that dispute being the same dispute. It should be remembered that the Federation speaks on behalf of future as well as present members. This Court would soon find itself in grave difficulties if it were to hold that the jurisdiction of the Arbitration Court depended, not merely upon the extension of an industrial dispute from one State to another State, but also upon the size of the dispute in each or some particular State. I venture to repeat what I said in the case of Metal Trades Employers Association v. Amalgamated Engineering Union [1] : - "The fact that the Arbitration Court or this Court may consider an industrial claim to be unimportant or trifling or unwise has no bearing upon the actual content of the dispute or upon the jurisdiction of the Arbitration Court to deal with that claim in an award. The Arbitration Court may, because it considers that a claim, though actually made, is not important or really significant, decline to include in an award any provision with respect to it. But if, for reasons satisfactory to the Arbitration Court, such a claim is granted in the award, there can, in my opinion, be no valid objection, upon the ground of jurisdiction, to the Arbitration Court making such an award. The award in such a case would deal directly with an actual part of the dispute."

[19]

The question is whether in these circumstances the relation of the company to the Commonwealth is such as to satisfy the expression in the constitution of the Federation "on behalf of the Government of the Commonwealth." In no small degree the answer depends upon the meaning of the expression in the context in which it occurs. As a shareholder, even the sole beneficial shareholder, the Commonwealth has no property legal or equitable in the assets of the company nor is the Commonwealth a principal acting by the company as its agent. But plainly the rule of the Federation when it uses the words "on behalf of" is not contemplating the legal relation of principal and agent. The language as well as the context and subject matter shows that. For the rule speaks of the employees of the person or corporation who employs persons on behalf of the Commonwealth. The person or corporation is the employer, the principal in the contract of service. The employer is not the Crown or Government. The expression "on behalf of" is used in a wider sense. It means for the purposes of, as an instrument of, or for the benefit and in the interest of, the Commonwealth. The reference to the Railways Commissioners and other bodies of the States shows that what is in mind is a corporation set up and used by the Government as an authority in which the undertaking is vested. Perhaps the possibility was not foreseen of a company registered under the Companies Acts and controlled by Government by means of the share capital. But I think that the arrangements adopted and the use made of Qantas Empire Airways Ltd. bring the case within the meaning of the constitution of the Federation. It does so because of the combined effect of three considerations. Firstly the two Acts of the Federal Parliament operate as legislative declarations or indications of intention that the company shall be "owned" by the Government which shall furnish the capital for the undertaking by subscribing to further issues. Secondly because the Government does hold all the capital. Thirdly because by making the directors the nominees of the Minister an effective control of the undertaking by the Government of the Commonwealth is established. The result is that by a use of the machinery of the company law made under the sanction of Federal statute substantially the same practical result is produced as if a statutory authority were set up. The difference is in form and in the further fact that the form is such that the Executive Government is left in a position to dispose of the shares or some of them or to issue further shares to strangers without the intervention of the legislature. Unless and until such a course is adopted, the difference does not seem to me to be enough to take the case out of the category which the constitution of the Federation describes. The words "on behalf of" aim at a relation with the Commonwealth in which the corporate employer is an agency or instrument of the Commonwealth acting in the public interest and that I think the company has become.

[23]

The Parliament has not expressly said that this corporation should act "on behalf of" the Crown. Denning L.J. said in Tamlin v. Hannaford [1] : "In the absence of any such express provision the proper inference in the case at any rate of a commercial corporation is that it acts on its own behalf even though it is controlled by a Government department." But in this case we are not concerned with the interpretation of an Act of Parliament or with the question whether a corporation has the immunities of an agent of the Crown. The rules of the respondent organization are not artificially drafted and are not concerned with distinguishing between persons or corporations who are and are not agents of the Crown. The words "on behalf of" are not used in a limited sense to mean "as agent." In these rules these words are used in the sense of "in the interests of." The words are capable of describing the relationship between Qantas Empire Airways as an operator of air transport and the Government of the Commonwealth. The company was incorporated in the ordinary way with a share capital subscribed by shareholders. But the Commonwealth Government has purchased all the shares but seven and these seven are held by nominees for the Government and it has the sole right to appoint directors. The enterprise conducted by this company is under public ownership, that is Government ownership. The employees of the company are its servants, not the servants of the Government, but they are employed in the interests of the Government. They stand in this general relationship to the Government just as truly as would the employees of a corporation created by statute to conduct a publicly-owned transportation service. The employees of this company employed at an annual salary rate are accordingly eligible for membership of the respondent organization. Consequently it had authority to make demands for those employees upon the company and to represent them before the Conciliation Commissioner. The order nisi should be discharged.

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties