Re Lee; Ex parte Harper [1986] HCA 30

[1986] HCA 30

High Court of Australia|1986-06-10|Before: Dawson JJ

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Court

High Court of Australia

Decision date

1986-06-10

Before

Dawson JJ

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Judgment (141 paragraphs)

[1]

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan, Deane andDawson JJ. Re Lee; Ex parte Harper [1986] HCA 30

[2]

ORDER Orders nisi for writs of prohibition and certiorari discharged.

[3]

The first question for decision in each of the three matters now before the Court is whether an association of employees whose membership largely comprises school teachers is entitled to be registered as an organization under s. 132 of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"). The three associations concerned are the Teachers' Association of Australia ("T.A.A."), the Independent Teachers Federation ("I.T.F.") and the Australian Teachers' Union ("A.T.U."), all of which applied to the Industrial Registrar for registration under s. 132. It is unnecessary for present purposes to set out in full the provisions of the respective rules governing the eligibility for membership of each of the three associations. It is enough to state their effect broadly as follows. Persons employed in or in connexion with school teaching, whether in governmental or independent schools, and including "school teachers in administrative, inspectorial, advisory and research positions", are eligible to join the T.A.A. In the case of the I.T.F., membership is open to teachers, and others filling related positions, in non-governmental schools only. For completeness, it should be added that there is an apparent exception in par. (c) of the I.T.F.'s eligibility rule, which is not expressly limited to non-governmental institutions, but we were told that it is proposed to delete that paragraph from the rules. Further, teachers employed in grammar schools constituted under the Grammar Schools Act 1975 Q., as amended, are eligible for membership of the I.T.F.; the Government of Queensland plays some part in appointing trustees and controlling the finances of such schools, but, for reasons which will appear, it is unnecessary finally to decide whether grammar schools are instrumentalities of the government, although as at present advised I have no doubt that they are not. Subject to some exceptions, membership of the A.T.U. (apart from office bearers) is confined to persons usually employed as teachers, or in similar positions, in governmental schools and other governmental educational institutions, and to teachers seconded to other governmental positions. The Industrial Registrar held that the eligibility rule of the T.A.A. specified an industry in or in connexion with which that association could obtain registration under s. 132 of the Act. Appeals from that decision were brought to a Full Bench of the Commission under s. 88F of the Act by the Minister for Justice and Attorney-General for the State of Queensland, and by other persons who objected to the application. The Industrial Registrar gave no decision on the applications made by the I.T.F. and the A.T.U., but in each matter referred to the Commission under s. 88E of the Act the question whether the applicant for registration is an association of employees in or in connexion with any industry or is an association of employees engaged in an industrial pursuit or pursuits within the meaning of the Act. The three matters were heard together by a Full Bench of the Commission which dismissed the appeals against the decision of the Industrial Registrar in relation to the application by the T.A.A. and answered in the affirmative the questions referred to the Commission in relation to the applications by the I.T.F. and the A.T.U. The Minister for Justice and Attorney-General for the State of Queensland as prosecutor now seeks a writ of prohibition or a writ of certiorari, the effect of which would be to prohibit further proceedings on the applications to the Industrial Registrar and to quash the decision of the Full Bench.

[13]

Until the decision in Reg. v. Coldham; Ex parte Australian Social Welfare Union [1] , it might have been thought that an association of persons employed as school teachers would not be entitled to be registered as an organization under s. 132 of the Act, unless perhaps the teachers were employed by an employer who was conducting a school for profit. The reasons for this view, put shortly, were as follows. The provisions of s. 132 of the Act could not validly extend to an association which consisted of employees who were not capable of being involved in an industrial dispute within the meaning of s. 51(xxxv) of the Constitution, and the meaning of industry and industrial pursuit or pursuits in s. 132 must therefore depend on the nature and scope of the concept of "industry" to which par. (xxxv) refers: Reg. v. McMahon; Ex parte Darvall [2] . Although the expression "industrial dispute" in par. (xxxv) had not been fully defined, it was held that a dispute might be industrial either because the work of the employee was industrial in character or because of the industrial nature of the activity carried on by the employer: Pitfield v. Franki [3] . Manual labour was regarded as a typical example of employment which is industrial in itself: Ex parte Professional Engineers' Association [4] . Looked at from the point of view of the employer's activity, it was said that an industrial dispute might arise in an undertaking engaged in for the purpose of the organized production, transportation or distribution of commodities or other forms of material wealth or for purposes ancillary or incidental thereto: Ex parte Professional Engineers' Association [5] ; Pitfield v. Franki [6] ; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [7] . On this view of the meaning of "industrial disputes", which involved fine and unreal distinctions, teaching was not in its nature an industrial activity, but might become so if the teacher was employed by a school conducted for profit: Federated State School Teachers' Association of Australia v. Victoria [8] ; Ex parte Professional Engineers' Association [9] ; Pitfield v. Franki [10] ; Reg. v. McMahon; Ex parte Darvall [11] . This restricted view of par. (xxxv) was abandoned in Reg. v. Coldham; Ex parte Australian Social Welfare Union. It was there held that, subject to a possible qualification that will later be discussed, the expression "industrial disputes" at least includes disputes between employees (of any kind) and their employers about the terms and conditions of their employment. The reasons which formerly existed for placing a narrow construction on the terms of s. 132 no longer obtain.

[18]

In my opinion, therefore, an association of not less than one hundred employees in or in connection with any industry or constituted with regard only to the nature of the work its members personally do (vocational or craft unions), and entirely disregarding the class of industrial operations in which they and their employers are mutually engaged, may now be registered as an organization, and there is no provision in the Act which precludes the association or organization from combining both characteristics. The construction of the provisions nevertheless presents certain logical difficulties. The references to "industry" in the definitions of "employee" and "employer", and to "employee" and "employer" in the definition of "industry", give the definitions an appearance of circularity: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria [16] . However, in Reg. v. Coldham; Ex parte Australian Social Welfare Union [17] , this Court accepted the correctness of the statement of Dixon C.J. in Ex parte Professional Engineers' Association [18] that the circular method of definition does not operate "to narrow or exclude the application of the definition of "industry" contained in the three pars. (a), (b) and (c) of the definition in s. 4(1)". Any different view would appear to make pars. (a) and (b) of that definition, at least, quite ineffective. A further difficulty is caused by the fact that since the definition of "industry" refers to the calling of both employers and employees, the provisions of par. (c) of s. 132(1) appear to add little or nothing to par. (b) of that sub-section when the latter paragraph is construed in the light of the definition of "industry". The expression "industrial pursuit" in s. 132(1)(c) may very well have a narrower connotation than "industry" as defined in s. 4(1), and since industry in s. 132(1)(b) is applied by the definition to any calling etc. of employees the provisions of s. 132(1)(b) would appear to cover all the employees embraced by s. 132(1)(c), if not more. In spite of this difficulty, it seems to me that full effect should be given to the words of s. 132(1)(b) read in the light of the definition of "industry". It is true that some of the judgments in Pitfield v. Franki [19] suggest a different view. McTiernan J. [20] appears to have thought that s. 132(1)(b) and par. (b) of the definition together cannot be construed so as to leave out of account altogether any concept of industry in the employees' calling. Menzies J. [21] expressed the opinion that s. 132(1)(b) brings into consideration the undertaking of the employers and that the question whether employees are employed in an "industry" cannot be determined without reference to the undertakings of the employers. With all respect, these statements, which were no doubt influenced by the narrow view of s. 51(xxxv) that then prevailed, fail to give due weight to par. (b) of the definition of industry, and should not now be accepted. In my opinion, upon the proper construction of s. 132(1)(b) and par. (b) of the definition of industry in s. 4(1) of the Act, any association whose members include not less than one hundred employees in or in connexion with any calling, service, employment, handicraft, or industrial occupation or vocation of employees is eligible for registration under s. 132. Clearly enough, an association whose members include not less than one hundred persons employed as school teachers answers that description, for teaching by persons employed to teach is a calling of employees in the ordinary understanding of that expression. Subject to the question about to be discussed, that is enough to justify the Commission's decision in the present case. 1. (1944) 68 C.L.R. 628, at pp. 634-635, 638-639. 2. (1944) 68 C.L.R., at p. 639. 3. (1942) 66 C.L.R. 488, at pp. 499-500. 4. (1983) 153 C.L.R., at p. 315. 5. (1959) 107 C.L.R., at p. 243. 6. (1970) 123 C.L.R. 448. 7. (1970) 123 C.L.R., at p. 463. 8. (1970) 123 C.L.R., at pp. 464-465.

[19]

The second question that falls for decision is whether the fact that in the case of the T.A.A. the membership includes, and in the case of the A.T.U. largely comprises, persons employed, either as school teachers or in other related capacities, in governmental schools, conducted by the States, means that the associations are not eligible to be registered as organizations under s. 132. In support of an affirmative answer to this question Mr. Hampson for the prosecutor relied on the possible qualification to the judgment in Reg. v. Coldham; Ex parte Australian Social Welfare Union to which I have already referred, which is mentioned at p. 313 of the report of that case. It was there said that it has been generally accepted, notwithstanding the Engineers' Case [22] , that the power conferred by s. 51(xxxv) is inapplicable to "the administrative services of the States". The Court went on to say that "the implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa)" but it did not need to decide whether a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could be sustained as valid. The principles according to which limitations of that kind may be implied in the Constitution were discussed, but not fully developed, in Melbourne Corporation v. The Commonwealth [23] , Victoria v. The Commonwealth [24] and, more recently, in Queensland Electricity Commission v. The Commonwealth [25] . Subject to such implied limitations, a legislative power of the Commonwealth extends to the operations of the States so far as they otherwise fall within the subject-matter of the power, and, in particular, s. 51(xxxv) enables the Parliament to make laws which apply to the States and to agencies of the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State: Ex parte Professional Engineers' Association [26] . As Dixon C.J. said in that case [27] : "That which is naturally within s. 51(xxxv) cannot cease to be so because it is "governmental"." Now that the proposition for which Federated State School Teachers' Association of Australia v. Victoria [28] was regarded as authority, that the occupation which State school teachers pursue is not by its nature industrial, can no longer be accepted, there is no reason why the power given by s. 51(xxxv) should not extend to an interstate dispute to which an organization representative of State school teachers is a party. It is impossible correctly to describe State school teachers, employed as such, as part of "the administrative services of the States", within the meaning of the possible qualification stated in Reg. v. Coldham; Ex parte Australian Social Welfare Union. The expression "the administrative services of the State" in that context cannot have been intended to include all employees of the State who happen to do some administrative work, but its intended scope is rather obscure. If it was intended to refer to "Crown officials engaged in administering true, essential governmental authority", to use the words of Isaacs J. in his dissenting judgment in Federated State School Teachers' Association of Australia v. Victoria [29] (see also R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria [30] ), the distinction which it suggests is an illusory one: Ex parte Professional Engineers' Association [31] and Victoria v. The Commonwealth [32] . But if a description of that kind could sensibly be adopted, State school teachers would not fall within it, as Isaacs J. himself held in Federated State School Teachers' Association of Australia v. Victoria. A more appropriate approach is to consider whether the law whose validity is in question would impair the ability of the State to continue to exist and function as such, but clearly provisions fixing the wages and conditions of employment of school teachers would not have that effect. Moreover, there is no suggestion here of a law which is aimed at, or discriminates against, a State or States.

[65]

In Darvall the Industrial Registrar had refused to register as an organization of employees pursuant to Pt VIII of the Conciliation and Arbitration Act 1904 Cth as amended ("the Act") an association of academic staff employed in universities. The Registrar took the view that the members of the association were not employed "in or in connection with any industry", nor were they "engaged in an industrial pursuit or pursuits" within the meaning of those expressions in pars. (b) and (c) respectively of s. 132(1) of the Act. Consequently the association was not eligible to be registered. The association then applied to this Court for a writ of mandamus directed to the Registrar. The prosecutor relied on the doctrine that had become well established that if the activity of an employer is ancillary or incidental to the organized production, transportation or distribution of commodities or other forms of material wealth, that is if it is ancillary or incidental to what may be called "industry" in the strict sense, it will in itself be industrial: Australian Insurance Staffs' Federation v. Accident Underwriters' Association [62] ; Ex parte Professional Engineers' Association [63] ("the Professional Engineers' Case "); Reg. v. Marshall; Ex parte Federated Clerks Union of Australia [64] ; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [65] ; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board [66] . It was argued that the activities of universities are ancillary or incidental to industry. The argument accepted the restricted concept of industry as established in cases such as Federated State School Teachers' Association of Australia v. Victoria [67] ("the School Teachers' Case ") and Pitfield v. Franki [68] , notwithstanding the hints given by some members of the Court that a return to the broader concept of "industry" and "industrial" first enunciated by Griffith C.J. and O'Connor J. in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [69] was possible: see Marshall [70] and Holmes [71] . The Court unanimously rejected the prosecutor's argument that the work of universities bore the necessary relation to industry but each judgment pointedly observed that the Court was not asked to reconsider the decisions in which the views of Griffith C.J. and O'Connor J. in Jumbunna [72] were rejected: Darvall [73] .

[97]

It must, of course, be a dispute relating to an "industry", and, in my judgment, the term "industry" should be construed as including all forms of employment in which large numbers of persons are employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life. It will be remembered that in C.Y.S.S. the Court discounted the reliance by the Chief Justice on a large number of employees being involved. While O'Connor J. in Jumbunna did not discuss the word "industry", his Honour rejected the contention that the word "industrial" is restricted to work connected directly or indirectly with production and manufacture [8] . The word connotes the "control and regulation of employment and the relations of employers and employés" [9] . Isaacs J. [10] spoke of the constitutional power extending "over the whole range of Australian industry in the largest sense without qualification, wherever it does or may give rise to a dispute extending beyond the limits of any one State, and thereby, in a manner beyond the control of any single State, disorganize the general operations of society or interfere with the satisfaction of public requirements in relation to the service interrupted". From time to time there has been raised the possibility that the statutory definition of "industry" might not correspond precisely with the constitutional conception of "industrial": Jumbunna [10] per Isaac J.; Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation ("the Municipalities' Case ") [11] , per Higgins J. In the Professional Engineers' Case [12] a submission that the statutory definition of "industrial dispute" fell short of exhausting the constitutional power was emphatically rejected [13] . The definition of "industry" was, of course, broadened in 1911 beyond that which Isaacs J. had before him in Jumbunna , following the decision of this Court in Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. [14] which held the statutory definition as it then was to be confined to the undertaking of the employer. The amendment which followed allowed for the concept of "industry" in the Act to be satisfied by a common calling or vocation of employees distributed among a range of enterprises as an alternative to an exclusive regard to the undertaking of the employer. The legislative history is described by Latham C.J. in Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia [15] . 1. (1908) 6 C.L.R., at pp. 332-333. 2. (1908) 6 C.L.R., at p. 365. 3. (1908) 6 C.L.R., at p. 367. 4. (1908) 6 C.L.R., at p. 370. 5. (1908) 6 C.L.R., at p. 370. 6. (1919) 26 C.L.R. 508, at p. 572. 7. (1959) 107 C.L.R. 208. 8. (1959) 107 C.L.R., at pp. 242-245, 250, 259-261, 270. 9. (1911) 12 C.L.R. 398. 10. (1944) 68 C.L.R. 628, at pp. 634-635.

[113]

It is also unnecessary to consider whether or not disputes between a State or a State authority and employees engaged in the administrative services of the State are capable of falling within the constitutional conception. It has been generally accepted, notwithstanding the Engineers' Case [8] , that the power conferred by s. 51(xxxv) is inapplicable to the administrative services of the States: see the Professional Engineers' Case [9] . If the reasons hitherto given for reaching that conclusion are no longer fully acceptable, it may be that the conclusion itself finds support in the prefatory words of s. 51 where the power is made "subject to this Constitution" (cf. Holmes [10] ). The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa). The nature of those limitations was discussed in Melbourne Corporation v. The Commonwealth [11] , Victoria v. The Commonwealth ("the Pay-roll Tax Case ") [12] and the other cases there cited. If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid, but as Walsh J. pointed out in the Pay-roll Tax Case [13] , the limitations have not been completely and precisely formulated and for present purposes the question need not be further examined. This aspect of constitutional law has received some further elucidation in the recent decision of this Court in Queensland Electricity Commission v. The Commonwealth [14] . In that case the Conciliation and Arbitration (Electricity Industry) Act 1985 Cth was held to be invalid because it singled out the State of Queensland in a discriminatory manner, imposing burdens upon agencies of the State in the exercise of their statutory functions. 1. (1983) 153 C.L.R., at p. 313. 2. (1920) 28 C.L.R., at p. 129. 3. (1959) 107 C.L.R., at p. 233. 4. (1977) 140 C.L.R. 63, at p. 90. 5. (1947) 74 C.L.R. 31, esp. at pp. 55-60, 66, 70-75, 82-83. 6. (1971) 122 C.L.R. 353, esp. at pp. 386-393, 402-403, 406-411, 417-424. 7. (1971) 122 C.L.R., at p. 410. 8. (1985) 159 C.L.R. 192.

[117]

It is likely that there are some members of the T.A.A. and the A.T.U. who are not employed in class-room teaching but occupy senior positions in government departments of education with responsibility either for the formulation of policy proposals to be considered by government or for the implementation of approved policies or perhaps for general supervisory or inspectorial functions. Such members, by reason of their connexion with the administrative services of a State, may fall outside the constitutional power of the Parliament to invest the Commission or the Registrar with any authority with respect to them. But whether or not that be so, it cannot mean that the interstate industrial dispute involving classroom teachers is also outside the power: cf. Professional Engineers' Case [20] , per Dixon C.J. Eligibility to be registered as an organization cannot be denied merely because the Commission may have no jurisdiction to make an award respecting certain of its members. The Court was confronted with an analogous situation in relation to professional engineers in the Professional Engineers' Case. It was there acknowledged that the Commission by exercising the authority conferred upon it by the Act to make an award binding on a State or an agency of the State might have to distinguish between those members of the disputant employee organization to whom the constitutional power extended and those to whom it did not [21] . It is not to the point that the discrimen present to the minds of their Honours in that case was whether or not the work upon which the employee was engaged was "industrial". In the light of C.Y.S.S., the appropriate criterion limiting the reach of constitutional power may now be expressed in terms of whether the employee is engaged in the administrative services of a State. The critical consideration in applying that criterion is whether the exercise by the Commission of the authority conferred on it by the Act would impair the constitutional integrity of a State or agency of a State. It will be for the Commission to undertake that consideration in the light of the evidence if and when the resolution of an industrial dispute involving the A.T.U. or the T.A.A. requires such an issue to be determined. The necessary conclusion on this aspect of the case so far as the present proceedings are concerned is that whether or not the objection taken by the prosecutor has any validity it cannot reach the position of class-room teachers and does not affect the eligibility of each of the three associations to be registered as an organization under Pt VIII of the Act.