Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation [1990] HCA 52

Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation [1990] HCA 52 - HCA 1988 case summary — Zoe

[49]

[I]t should in my opinion be held that the duties performed by the clerks and administrative officers employed in the Department of Motor Transport are only incidental to transportation in a remote and indirect way. But what is more important is that their duties are not in their nature industrial, because they stand "outside the whole world of productive industry and organized business". It is not a sufficient distinction between the position of clerks in the Treasury, and that of clerks employed by the Commissioner for Motor Transport who collect taxes and charges, that the funds raised by the latter are devoted to special purposes relating to transportation. The tasks of licensing, and registration, and formulating rules for the governance and safety of traffic, also cannot properly be described as industrial. They are bare administrative functions, such as could not be performed in industry under our system. His Honour's comments were directed to demonstrating that the activities were not industrial in character, a conclusion which must now be viewed in the light of the subsequent decision in Reg v Coldham; Ex parte Australian Social Welfare Union [4] . The reference to the departmental activities standing outside the world of "productive industry and organized business" must be read accordingly. The reference should not be understood as a statement that the departmental activities did not constitute a business within the meaning of the eligibility rule. Of all words, the word "business" is notorious for taking its colour and its content from its surroundings: see Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [5] . Its meaning depends upon its context. It is common and apt to speak of "the business of government": see, for example, Conway v Rimmer [6] . In the context of sub-r. (1)(a)(v) it is plain enough that the successor clause relates back to the activities of public authorities and departments of government, which do not or may not carry on commercial undertakings for profit, as well as to such undertakings. Indeed, the structure of sub-r. (1) suggests that the eligibility rule is primarily concerned with public sector employment; the first four paragraphs in pars (a)(i) to (iv) inclusive are directed to such employment as are the first twelve employers listed in par. (a)(v). 1. (1977) 140 C.L.R., at pp. 70-71. 2. (1977) 140 C.L.R., at p. 77. 3. (1983) 153 C.L.R. 297. 4. (1982) 150 C.L.R. 355, at pp. 378-379. 5. [1968] A.C. 910, at p. 952.

[55]

Even if the view expressed by Isaacs and Starke JJ. be taken as correct, it is not decisive of the present case. In Hillman the question was whether the parties named in the award were the real respondents. If not, no question of succession to the Commonwealth's business arose. Here a different question arises and it is to be determined as a matter of construction by reference to the particular and rather complicated provisions of r. 6 of the A.T.O.F. constitution. The question is not whether the Crown in right of the State is party to, or bound by, an award, but whether the A.T.O.F. has coverage in respect of the employees of a statutory body in a setting in which the statutory body is treated as the employer, even if the statutory body is or represents the Crown, and in which the proviso in the successor clause is looking to an employer as a successor to the business of the first employer. In that context sub-r. (2)(b)(i) is of special significance. The function of that provision is to exclude from A.T.O.F. membership persons employed in a professional capacity by twelve named statutory authorities, including the C.M.T.'s predecessor, the Superintendent of Motor Transport. The provision contains a successor clause in the same terms as that contained in sub-r. (1)(a)(v) subject only to the elimination of the proviso to that clause. It is obvious that, in sub-r. (2)(b)(i), there is scope for the concept of succession to a business as between two statutory authorities, notwithstanding that the functions which they discharge are governmental functions performed by, on behalf of or for the benefit of the Crown in the right of the State. That is how Gibbs J. saw sub-r. (2)(b)(i) as operating in Holmes when the C.M.T. succeeded the Superintendent of Motor Transport [11] . The successor clause in sub-r. (1)(a)(v) must operate in the same way. Accordingly, the question in the present case is not governed by the way in which the Court in Hillman applied s. 29 (later s. 61) of the Commonwealth Conciliation and Arbitration Act 1904 Cth.

[56]

That brings us to the final and most difficult question: whether, on the facts of the case, the R.T.A. is " a successor or assignee or transmittee of the business of" the C.M.T. (our emphasis). At the outset of our consideration of this question we should refer to the comprehensive review of that reorganization which is set out in the judgment of Hill J. in Re Crown Employees RTA etc Award [12] . In the light of that review we need refer only to the principal matters on which the parties rely in support of their submissions. The first point urged by the respondents is that the form of the statutory scheme so far as it related to the C.M.T. and the R.T.A. was inconsistent with the claim that the R.T.A. is a successor, assignee or transmittee of the business or activities of the C.M.T. Rather, the business or activities of the C.M.T. were abolished and the R.T.A. was brought into existence with a new business or set of functions. The R.T.A. and the P.S.A. point to the different way in which that Act deals with the R.T.A. as compared with the way in which it deals with the State Rail Authority ("the S.R.A.") and the State Transit Authority ("the S.T.A."). Thus, it is provided that the S.R.A. shall operate railway passenger and freight services and continue to operate the railway services which were provided by it (s. 5). Clause 3 of Sched. 7 to the Administration Act provides that the S.R.A. constituted under that Act is a continuation of, and the same legal entity as, the former S.R.A. Likewise, cl. 13 of Sched. 7 provides that the S.T.A. constituted under the Administration Act is a continuation of, and the same legal entity as, the Urban Transit Authority under earlier legislation, in circumstances in which the Administration Act directs the S.T.A. to continue to operate the bus and ferry services which were provided by the Urban Transit Authority. The provisions of Pt 6 of the Administration Act relating to the R.T.A. take a different form. There is no reference to the functions of former departments or authorities nor to continued performance by the R.T.A. of those functions. Instead, the D.M.R. and the D.M.T., along with other authorities including the Traffic Authority of New South Wales, "are abolished": Sched. 7, cl. 23. Moreover, the Chief Executive of the R.T.A. is not the person who held office as Commissioner for Motor Transport but the person who held office as Commissioner for Main Roads: Sched. 7, cl. 25.

[58]

The R.T.A. and the P.S.A. submit that a substantial identity between the business formerly carried on by the C.M.T. and the business now carried on by the R.T.A. must be shown to exist in order to constitute the R.T.A. as a successor of the business of the C.M.T. We do not agree that Shaw v United Felt Hats Pty Ltd [13] supports such an absolute proposition. That decision, which related to s. 29(ba) of the Commonwealth Conciliation and Arbitration Act as it then stood, turned on its own facts. The respondents' notion of substantial identity invites a comparison between the nature of the business as it was formerly carried on and the nature of the business now carried on by the new entity with a view to ascertaining an identity between the two. According to the natural reading of the language of the successor clause, the inquiry should be directed to ascertaining whether the business or the activities formerly carried on by the C.M.T. are still carried on by the R.T.A., notwithstanding that the R.T.A. also carries on one or more other substantial activities. The question then is whether the purpose of the clause viewed in this context requires a different reading for which the respondents contend. The natural reading, it is urged, could give the A.T.O.F. very wide, indeed "windfall", coverage, even a coverage unrelated to employment in the business of the kind carried on by the former employer. There is force in this argument and it may be perhaps that some limitation would need to be implied in order to preclude such an extreme operation. However, there are two answers to the respondents' argument. The first lies in the proviso to the successor clause and requires the successor to be an employer within sub-r. (1)(a)(i) to (v). The second is that the Commission has a discretion under the Act to refuse to make an award at the instance of a registered organization which has a peripheral interest in the industry. Accordingly, on the reading of the clause which we favour, the ultimate issue is whether there is a substantial identity between the old activities and those now carried on by the R.T.A. which correspond with the old activities.

At a glance

Court

Decision date

Before

Source

Judgment (61 paragraphs)