R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation

In the first application (No. M77 of 1981), the workers involved are described as riggers and concrete workers employed in the erection of high voltage electricity transmission towers. The Federation seeks prohibition and mandamus against named members of the Australian Conciliation and Arbitration Commission ("the Commission") in relation to a finding, in the course of allowing two appeals brought by the respondents against the decision of a single Commissioner, that an industrial dispute did not exist between the Federation and three companies involved in the erection of those towers. The Federation claimed that a dispute arose as a result of service by it on those three companies of a log of claims relating to the activities of the workers in question. The Commission held that, for relevant purposes, no dispute existed for the reason that the Rules of the Federation did not permit it to enrol as members persons who were or might be engaged in the activities referred to in that log of claims (see, e.g., R. v. Portus; Ex parte Federated Clerks Union of Australia [1] ; Reg. v. Watson; Ex parte Australian Workers' Union [2] ; Reg. v. Aird; Ex parte Australian Workers' Union [3] ; Reg. v. Mannequins and Models Guild of Australia; Ex parte Actors and Announcers Equity Association of Australia [4] ).

1. (1949) 79 C.L.R. 428, at pp. 432-433. 2. (1972) 128 C.L.R. 77, at p. 93. 3. (1973) 129 C.L.R. 654, at p. 666. 4. (1982) 148 C.L.R. 573, at p. 574.

In the second application (No. M41 of 1982), the workers involved are employees, other than tradesmen, engaged in the erection of thirteen steel tanks and a carbon baking furnace stack forming part of the Alcoa Aluminium Smelter under construction at Portland. In that application, writs of mandamus and certiorari are sought against members of the Commission in respect of a finding by them, in a hearing pursuant to a reference under s. 34 of the Act, that an industrial dispute did not exist between the applicant and C.B.I. Constructions Pty. Ltd., which is engaged in the erection of that Smelter, as a result of that company's refusal to accede to a letter of demand and log of claims served upon it in relation to the activities of those workers. The Commission held that the Rules of the Federation did not permit it to enrol as members persons who were or may be engaged in those activities.

The third application (No. 56 of 1982) arises from a decision of the Commission on an application made by the Federation, in the course of wider proceedings involving rights to employment and demarcation, for an order that the work to be performed by the riggers employed in the erection by Transfield Adelaide Pty. Limited of a structural steel framework for steam raising equipment at the Northern Power Station at Port Augusta be carried out by members of the Federation. The Commission held that the workers involved in performing that work came within the eligibility clause of the F.I.A. of which they were, in fact, members and refused to make the order which the Federation sought. The Federation argues that the Commission was in error in holding that the workers involved came within the F.I.A.'s eligibility provisions. It is, however, apparent that, if the Federation's eligibility clause does not entitle it to enrol, as members, persons who are or may be engaged in those activities, the decision of the Commission, which consisted of no more than a refusal to make the order which the Federation sought, was correct and that the order nisi for prerogative writs should be discharged.

The industry in or in connection with which the Federation is registered is defined, by the Federation's Rules (r.4a), as "the Building Industry and the Industry of the operation of concrete batching plants". The Federation's eligibility provisions are contained in r. 4 of its Rules and are as follows:

The Federation shall consist of an unlimited number of persons employed or usually employed as Builders' Labourers throughout Australia on or about any building or assisting any bricklayer, mason, plasterer, carpenter, plumber or any tradesmen engaged in building operations, or employed on any making or contracting job in wood, stone, brick, concrete, iron or steel, or combination of these or other materials incidental to building construction, and any labourer engaged in the construction, repair, demolition or removal of buildings, or as scaffolder, rigger, gear hand, gantry hand or crane hand or as dogman, or as drainer on all building contracts, and any labourer excavating ground for foundations and basements of buildings, or levelling ground on a proposed building site, or doing concrete work, tar paving or asphalt work, or mortar or concrete mixing in connection with, or incidental to the foregoing operations and employees (other than motor truck drivers and clerks) engaged in the operation of concrete batching plants (except in the State of New South Wales) where such plants are used principally for the production of concrete for supply to building construction operations 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.

In each application, the Federation claims that workers employed in performing the work in question come within a number of the categories contained in r. 4. It became clear in the course of argument that the real issue involved in each application is not so much the precise denotation of any one or more of the particular categories of workers mentioned in the Rule as the meaning to be given to the words "Builders'", "building" and "buildings" and to the phrases "building operations", "building construction", "building contracts", "building site" and "building construction operations" as used therein. Those words and phrases constitute a chain of related references which runs through, and controls the general scope of, the Rule. For the Federation, it was argued that "building", or "builder", whether used on its own or as part of a phrase in that chain, should be given a very wide meaning as including almost any structural work other than the assembly or installation of plant. For the respondent employers and organizations, it was argued that the words should, in the context of r. 4, be given the more limited denotation of referring to structures which are regarded as buildings in ordinary parlance, of which the typical example is a roofed structure of the type that is capable of housing people, animals, plant, machinery, produce or other goods.

The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [5] ; Reg. v. Clarkson; Ex parte Victorian Employers Federation [6] ; Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia [7] ). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex parte Australian Workers' Union [8] ; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board [9] ). In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, e.g., R. v. Hickman; Ex parte Fox and Clinton [10] ; Reg. v. Aird; Ex parte Australian Workers' Union [8] ).

1. (1957) 97 C.L.R. 71, at p. 87. 2. (1973) 131 C.L.R. 100, at pp. 111, 113. 3. (1980) 49 F.L.R. 355, at pp. 357-358. 4. (1973) 129 C.L.R., at p. 659. 5. (1979) 141 C.L.R. 577, at pp. 580, 587. 6. (1945) 70 C.L.R. 598, at p. 613. 7. (1973) 129 C.L.R., at p. 659.

Where this Court has ruled upon the construction and scope of the eligibility provisions of a particular registered organization, the Court will be more than ordinarily reluctant, in a subsequent case involving the construction and scope of those provisions, to depart from its previous decision or to disregard views expressed in considered comments made in reaching that decision. As has been mentioned, eligibility provisions in the rules of a registered organization constitute a reference point for persons apart from those involved in any particular case. The scope of such provisions can be of importance to the Commission in considering and determining applications for alterations to the rules of both the organization involved and other organizations, in determining whether an industrial dispute exists and in the processes of conciliation and arbitration for the settlement of such disputes. Their scope is of importance to employers in determining the organization or organizations with which they should be concerned to deal and negotiate and to employees in determining which organization or organizations they are entitled to join. It is inevitable that any considered views expressed in this Court on the construction or scope of eligibility provisions in the rules of a particular organization will be accepted and acted upon by those concerned with or involved in the industry or industries in which members of the organization are employed or with the existence or settlement of disputes within that industry or those industries. There would have to be strong reason indeed to induce the Court, in a case involving the construction of the eligibility provisions of a particular organization, to depart from considered views expressed by the Court in a previous case as to the scope of those eligibility provisions. This is especially so where procedures for amending rules, however cumbersome, are available under the Act.

The scope of the provisions of r. 4 of the Federation's Rules arose for consideration in this Court in Reg. v. Watson; Ex parte Australian Workers' Union [12] ("Watson's Case"). At the time of Watson's Case, r. 4 was, for present purposes, essentially as set out above: the only subsequent variation has been the insertion in the present Rule of the words "and employees (other than motor truck drivers and clerks) engaged in the operation of concrete batching plants (except in the State of New South Wales) where such plants are used principally for the production of concrete for supply to building construction operations" which were added to overcome the actual decision in Watson's Case. It has not been suggested that the inclusion of those words is of relevance in the resolution of the present applications.

In their judgments in Watson's Case, the members of the Court who constituted the majority gave consideration to the general scope of the Federation's eligibility provisions. In particular, Walsh J. [13] expressed a conclusion that the operations referred to in the Federation's eligibility provisions "are all described in terms which limit them to work associated with buildings which are being constructed, repaired, demolished or removed or with preparations for building construction, such as excavating or the levelling of building sites". This view accords with the approach adopted in the judgment of Menzies J. [14] . Barwick C.J. expressed his agreement with the judgment of Menzies J. and, in the course of some additional remarks of his own, said that "the eligibility clause properly understood is restricted to workers in the building industry " [15] . In the result, the reasoning of the majority Justices in Watson's Case lends support for the view that the eligibility provisions of the Federation, apart from the subsequently added special provision relating to employees engaged in the operation of concrete batching plants, are limited to work associated with a building or buildings. It is also apparent from the judgments of Walsh J. and Menzies J. in Watson's Case, that references to a "building" or "buildings" should not be understood as references to any structure at all but as references to what would ordinarily be described, in common parlance, as a building or buildings.

1. (1972) 128 C.L.R., at p. 90. 2. (1972) 128 C.L.R. at pp. 84-85. 3. (1972) 128 C.L.R., at p. 79.

In the course of the argument of the present applications, reliance was placed by the Federation on the recent decision in Reg. v. Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [16] ("the Omega Case"). In that case, a majority of the Court gave a wide connotation to the words "employed in building operations" in the context of an exclusion contained in a sub-clause of the eligibility clause in the Rules of the F.I.A. The judgments make clear, however, that the meaning given to the words was, to no small extent, influenced by the context provided by the sub-clause in which the words occurred. Indeed, a majority of the members of the Court emphasized that their consideration was confined to that sub-clause. Examination of that sub-clause discloses that that context was quite different to the context in which the words "building operations" are used in the Federation's eligibility clause. In the relevant sub-clause of the F.I.A.'s eligibility clause, there is but one mention of the word "building": that mention is in the critical phrase "building operations" which occurs in an exception from activities which would not normally be thought of as involved in the construction of a "building" in the sense of common usage. In contrast, as has been seen, the Federation's eligibility clause mentions "Builders'", "building", "buildings", "building operations", "building construction", "building contracts", "building site" and "building construction operations" as components of a chain of obviously related references. In our view there is nothing in the judgments or the decision in the Omega Case which warrants rejection or modification of the views expressed by the majority in Watson's Case to which reference has been made. In follows that the questions involved in the present applications should be approached on the basis that the operations referred to in the Federation's eligibility provisions are limited to work associated with construction, repair, demolition or removal of a building or buildings in the ordinary sense or to related operations such as the excavation or levelling of building sites.

Notwithstanding that it has been frequently affirmed by this Court that it has to determine independently for itself whether in a particular case the Commission has or lacks jurisdiction, weight is to be given, on questions of fact and usage, to the Commission's decision (see Caledonian Collieries Ltd. v. Australasian Coal & Shale Employees' Federation [No. 1] [17] ; R. v. Blakeley; Ex parte Association of Architects, etc., of Australia [18] ). The weight to be given to the Commission's decision will of course vary. As Mason J. said in Reg. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union [19] :

The weight to be given to the Commission's decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission's knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent. 1. (1930) 42 C.L.R. 527, at p. 547. 2. (1950) 82 C.L.R. 54, at p. 92. 3. (1981) 153 C.L.R. 376, at p. 390.

In each of the present applications, a Full Bench of the Commission reached the view that none of the work involved came within the Federation's eligibility provisions. In reaching that conclusion, the learned members of the Commission plainly drew, to some extent, on their knowledge of the building industry and of common usage in relevant industries of words in the Federation's eligibility provisions, particularly, the word "building". It is, however, unnecessary that we decide these applications by reason of the weight that should be attached to the decision of the Commission in such circumstances. In our view, the decision reached by the Commission was, in each application, correct.

Once the conclusion is reached that the operations referred to in the Federation's eligibility clause are limited to work associated with a building or buildings in the ordinary meaning of those words, it is plain that none of the particular workers involved in the present applications comes within the provisions of that clause. It is unnecessary and undesirable to attempt to frame any comprehensive definition of the words "building" and "buildings" as used in r. 4. It suffices to say that the words, as there used, do not extend to encompass the high voltage electricity transmission towers involved in the first application (No. M77 of 1981), the steel tanks and carbon baking furnace stack involved in the second application (No. M41 of 1982) or the structural steel framework involved in the third application (No. 56 of 1982). That being the case, none of the relevant workers is eligible to become a member of the Federation. The Federation was neither competent to create an industrial dispute by serving a log of claims relating to their activities nor entitled to have an order made by the Commission that those activities be carried out by members of the Federation.

This Court refused leave to argue that Reg. v. Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation ("the Omega Case") [20] was incorrectly decided. Consistently with my then stated views "building operations" in the present case should be given a wider meaning than "work in relation to buildings"; and the applicant Builders Labourers' Federation ("B.L.F.") is eligible to enrol persons employed in the work subject of the log of claims in each of the two disputed area (riggers and concrete workers employed in the erection of electricity transmission towers and persons employed in the erection of steel tanks forming part of an aluminium smelter). That is enough to establish that the B.L.F. is party to an industrial dispute in relation to the work.

The B.L.F. accepted that it cannot be party to an industrial dispute unless the persons engaged in the work which is subject of the logs of claims are eligible to be members of the B.L.F. This goes too far; provided that there is an industrial relevance, the capacity of an organization to make claims which lead to an industrial dispute is not so limited. However it is not useful now to examine this further.

On the application in relation to the demarcation order, I find that the persons employed in the relevant work are eligible for membership of the B.L.F. The B.L.F. claims that they are not eligible for membership of the Federated Ironworkers' Association ("F.I.A."). Even if that be correct, if does not follow that this Court should issue any write. In the Omega Case counsel for the respondent union conceded that in such circumstances the writ should issue. However unlike the question of whether an industrial dispute exists, the application under the Conciliation and Arbitration Act 1904 Cth ("the Act"), s. 142A does not raise any constitutional issue. At most there is an error by the Commission on a decision which it is authorized to make. In R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [21] this Court, in referring to decisions under the Act by the Registrar and former Court of Conciliation and Arbitration relating to representation by organizations, stressed that the policy of the Act is (to use the words of Dixon J. [22] ) "that matters of this decription should be dealt with by the Court of Conciliation and Arbitration and by its officers and that we should be very careful in maintaining the distinction between error in deciding a matter and excess of power so that we do not award a writ of prohibition in matters which are within the province of the court and of the Registrar to decide. We should be careful to exclude from our consideration matters which go to the correctness or incorrectness of the decisions of the Registrar or of the court when we are called upon to decide whether they have exceeded power". This Court (Gibbs C.J., Murphy, Aickin, Wilson and Brennan JJ.) recently indorsed that approach in Reg. v. Moore; Ex parte Co-operative Bulk Handling Ltd. [23] . It is applicable to an order under s. 142A such as that in the present case which does not involve any constitutional considerations. The policy of the Act is to leave such matters for the Commission. Whether right or wrong, the decision is not such that this Court should intervene.

1. (1951) 82 C.L.R. 177. 2. (1951) 82 C.L.R., at p. 186. 3. (1982) 56 A.L.J.R. 697; 2 I.R. 1; 41 A.L.R. 221.

Writs should be issued in the two applications on the basis that the industrial dispute extends to the disputed work. The application for writs concerning the demarcation should be dismissed.