Re Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1981] HCA 33

The application to this Court is made on three grounds: (1) that a denial of natural justice was involved in the conduct of the proceedings by Marks J.; (2) that Marks J. had no jurisdiction under s. 142A to make an order in favour of the F.I.A. giving it the exclusive right to represent employees of E.P.T. working as riggers at the Omega site because they were engaged in a building operation and were therefore excluded from membership by the eligibility clause in the F.I.A. rules; and (3) that s. 142A does not confer jurisdiction on the Commission to make an order giving representation to an organization to the exclusion of another organization on the ground that the class or group of employees specified are not eligible for membership of the second organization because such an order would involve the exercise of the judicial power of the Commonwealth.

The F.I.A. application related to: (1) approximately five men in the "Yard Gang" performing work in the yard and other work associated with the erection of the steel mast or tower at the Omega site, such as driving winches, vehicles, etc.; and (2) eight employees working on the mast itself, of whom six riggers are engaged in placing structural steel members in position and two labourers are engaged in assisting on the mast, tightening and tensioning bolts after the steel members are placed and secured.

The Omega Navigation Station is an element in a world-wide navigation system. Its construction is being undertaken for the Commonwealth. E.P.T. is the contractor for the steelwork. The mast, which is the principal feature of the Station, will be a triangular (three-legged) lattice steel guyed mast some 427 metres in height, supported by eighteen radial guys anchored to anchor blocks on the ground. One feed radial from the mast is connected by a down feed aerial system to the Helix Building (a concrete building on the site) on top of which E.P.T. is to erect an insulator, and a protecting fabricated ice shell. The erection of the steel members comprising the steelwork in the mast is carried out by a team of eight which works in conjunction with a winch driver working on the ground. The six riggers who place the steel members in position on the mast and secure them safely operate the climbing jib crane on the mast which is used for lifting the steel members into position. Final bolting up and tensioning of bolts is performed by the two other labourers.

Although the right to represent employees of E.P.T. in the Yard Gang was in contention before Marks J., the focal point of the dispute in this Court concerns the right to represent the six riggers in the second group, those working on the mast. However, if the applicant succeeds on its first and third grounds, prohibition would go in relation to the whole of the decision at first instance. If, however, the applicant succeeds on the second ground only, prohibition will go in relation to that part of the decision that confers a right to represent riggers in the second group only.

Two of the grounds on which the B.L.F. opposed the F.I.A. application were: (1) that under cl. 3 (1) (d) of its rules the F.I.A. had no right to represent the employees in question because they were excluded from its membership; and (2) that an agreement had been reached between the two unions in proceedings before Commissioner Turbet, the effect of which was that the F.I.A. would have sole coverage of employees erecting towers carrying electricity wires in Victoria and that the B.L.F. would have sole coverage of employees erecting wireless communication masts in that State. The alleged denial of natural justice arises out of the manner in which Marks J. dealt with this second defence to the F.I.A. application.

The B.L.F. contends that Marks J. consulted with Commissioner Turbet and ascertained from him that he considered that no such agreement as that alleged had been reached. According to the B.L.F., this conduct constituted a denial of natural justice and its effect was compounded by his Honour's refusal to issue a summons to Commissioner Turbet, requiring him to give evidence as to the making of the alleged agreement.

According to the B.L.F., at a hearing before Commissioner Turbet on 2 May 1980 in relation to the Mt Dandenong and Omega sites, Mr. Gallagher of the B.L.F. proposed an agreement in the terms alleged. The hearing was then adjourned into conference to discuss the proposed agreement as well as collateral issues. Around lunch time on 2 May Mr. Capogreco for the B.L.F. claimed that he received a telephone call from Commissioner Turbet asking him to ascertain whether Mr. Gallagher's proposal was still on foot and stating that the F.I.A. representatives would ascertain from their federal officers what their reaction was to the proposal. There was a subsequent telephone conversation between Mr. Capogreco and the Commissioner in which the proposed agreement was spelt out in some more detail. In a third telephone conversation, which took place later in the afternoon, Mr. Wallace, who was with Mr. Capogreco, informed the Commissioner that the agreement was acceptable to the B.L.F. Commissioner Turbet then told Mr. Wallace that he would speak to Mr. Reid of the F.I.A. who was then present at the Commission. The Commissioner left the telephone. When he returned he told Mr. Wallace that Mr. Reid had confirmed the agreement and that he, the Commissioner, would send a telegram setting out the basis of the settlement. It is common ground that at 3.56 p.m. in the afternoon Commissioner Turbet sent to each union a telegram in these terms:

for your information basis for settlement fia/blf demarcation issue - victoria that the abceblf will make no claim to cover persons engaged on the construction of electricity transmission towers that the fia will make no claim to cover persons engaged on the construction of tv and radio towers in both instances these arrangements will apply to victoria only.

The B.L.F. claim is that an oral agreement was made in the discussions between the Commissioner and the representatives of the two unions and that the sending of the telegrams evidences the terms of the agreement.

In the course of making his submissions to Marks J., Mr. Capogreco said on 21 May 1980:

The Federation invites the Commission firstly to acquaint itself with the making of this agreement, keeping in mind that a member of this commission has taken an active part in the making of it. Secondly, the Federation invites the Commission to refuse to hear this application on the grounds that it is an abuse of process in that it seeks the assistance of the Commission in bringing about a breach to an agreement to which the applicant is a party Mr. Capogreco concluded his submission on this point by saying: Should the Commission be of the opinion that the existence of the agreement is in doubt or that its contents are not certain, the B.L.F. seeks an adjournment in order to call evidence from the participants to the making of the agreement.

Following a short adjournment, Mr. Sweeney for the F.I.A. indicated that his organization rejected the suggestion that there was any agreement and referred to a telegram sent by the F.I.A. on 5 May 1980 to the Commissioner in which it rejected the proposed settlement.

What then transpired is recorded in the transcript.

His Honour: What do you have to say about that, Mr Capogreco?

Mr Capogreco: It appears beyond doubt that the existence and the terms of the agreement are a subject of doubt to say the least and, that being the situation, the Federation intends to call evidence to prove the existence of the agreement and its terms. We seek an opportunity from the Commission to enable us to call the evidence.

His Honour: During the adjournment, Mr Capogreco, I had an opportunity to read the telegram which in itself seems to set out nearly the basis for settlement. It does not in its words suggest that an agreement was reached in the terms set out and perhaps I might say also I took the opportunity in the adjournment to speak to Mr Turbet. My understanding of the situation as it occurred was that this was put up as a proposition and a proposal for settlement and Mr Turbet never had any thought that agreement was reached. In fact he understood that the F.I.A. had to consider the matter and got instructions which culminated in a telegram, to which Mr Sweeney has referred. I only say that because I am entitled to inform myself in accordance with the act as to a situation such as this but I do it and say it now mainly to save what might be a considerable waste of time. I am not pre-judging the matter by any means but I would like to hear from you where and how you suggest the agreement was brought into fruition. Is there a document between the parties? Do you suggest there is a document between the parties that as I say brings to fruition such an agreement or is the only document which you know of that which the Commissioner sent? I am aware of what went on to some degree within the Commission but the parties themselves may have outside the Commission come to some agreement. Mr Sweeney says that is not so. I do not want the time of the Commission taken up unnecessarily if it is merely to bring forth a situation of argument which is not going to produce in the end the document which is an agreement.

Mr Capogreco: I have gone from the bar table as far as I can to recollect the circumstances and the events which created the agreement. All we are seeking now is to present to you evidence from witnesses as to the creation of the agreement.

His Honour: Can you give me the nature of the evidence that you have in mind?

Mr Capogreco: We intend to call all the witnesses, all the persons who have taken part in discussions which make up in the whole the agreement. That basically refers to discussions and telephone conversations which occurred on 2 May.

In the course of the discussion that ensued, Mr. Capogreco said:

We see that the Commission is in doubt as to whether the agreement exists and is in doubt as to what are its terms and that is why we seek to call evidence. Mr. Capogreco made no claim at that stage that his Honour had acted improperly in consulting with Commissioner Turbet. The proceedings were then adjourned until 3 June 1980. In the meantime an application was made by the B.L.F. for the issue of a subpoena to Commissioner Turbet. That application was refused by Marks J.

When the proceedings resumed on 3 June, Mr. Capogreco read a statement in which the B.L.F. complained that it had been refused the right to call evidence and asserted that it would withdraw from the proceedings and that it would not abide by any decision or order that might be made in the proceedings.

At this stage I should point out that the B.L.F. version of events is at variance with the transcript record of proceedings before Commissioner Turbet on 2 May 1980. First, there is no record of Mr. Gallagher having formulated any proposal for settlement before the proceedings were adjourned into private conference. Secondly, according to the Commissioner's summary of the private conference contained in the transcript, the accuracy of which was not contested by the parties, following a statement by Mr. Gallagher that the B.L.F. did not wish to cover persons engaged in the construction of electric transmission towers in Victoria, the Commissioner indicated that it would be desirable for the A.C.T.U. to convene a meeting of the two unions in the following week. It was then that the Commissioner put to Mr. Gallagher "a proposition" in terms of the alleged agreement. The Commissioner's summary of the private conference then continues in this way:

The indication I have received from Mr Gallagher is that that arrangement would be satisfactory. It therefore seems to me that a proposal has emerged which could be placed before the meeting to be arranged by the ACTU for the consideration of the Federated Ironworkers Association and the Builders Labourers Federation. For my part, I will pass on to the ACTU the proposal I have just outlined.

Could I have an indication from the parties, as far as they are affected by what I have said, that the statement is a fair reflection of what occurred during the conference? When I say that, I accept that there are some parts of what I said which, clearly, you were not a party to and you could not indicate whether it was a fair reflection or not.

For our part, Mr Commissioner, that is my understanding of what Gallagher said and that is what is being discussed here. That is all in the proposal. If the conference with the A.C.T.U. comes off from our federal people's point of view, that is a firm proposal they can be looking at for discussion at that conference.

The Commissioner concluded at about 3 p.m. by saying:

Also during the conference I stated that I would re-list this matter on 9 a.m., Thursday, 8 May. It seems to me that I should hold to that listing. That would give the parties an opportunity to report back to the commission and, hopefully, give the commission an opportunity to finalize the matter, if some agreement can be reached with the A.C.T.U. It was at 3.56 p.m. that he sent the telegrams to the two unions.

It was not suggested before us that the transcript record of proceedings before the Commissioner was otherwise than correct.

From this account of the relevant events, brief though it is, two important matters emerge. First, Mr. Capogreco invited his Honour to make inquiry of Commissioner Turbet and asserted a right to call evidence in the event that the inquiry revealed that there was doubt as to the making of the agreement. When his Honour disclosed that he had spoken to the Commissioner and what the latter had said, Mr. Capogreco made no complaint and expressed no surprise. His Honour did no more than respond to the invitation made to him by Mr. Capogreco. For this reason, apart from any other, what was done did not constitute a denial of natural justice.

Secondly, the transcript record and the telegrams indicate that no binding agreement was reached by the two unions and that the "proposal" had not progressed beyond a proposal for settlement to be considered by the federal officers of the two unions and examined at a conference in the next week. The Commissioner's statement to Marks J. of his understanding of the position is in conformity with these materials. In his summary the Commissioner spoke of having formulated "a proposition" and of placing "a proposal" before a meeting to be arranged by the A.C.T.U. In the telegrams he spoke of "basis for settlement". He did not say that a settlement had been reached. What the telegrams did was to offer a basis of settlement to be considered by the federal organs of the two unions. Even if we assume the correctness of the account of the telephone conversations between 3 p.m. and 3.56 p.m. on 2 May 1980 given by Mr. Capogreco, there is nothing to indicate that Mr. Reid had authority from the federal officers of the F.I.A. to commit it to a binding agreement. And on 5 May 1980 the F.I.A. rejected the proposal.

I do not accept Mr. Handley's submission for the F.I.A. that no agreement could come into existence until a memorandum was notified in accordance with s. 28. A certified agreement has the same effect as, and is deemed to be, an award (s. 28 (3)). But this provision does not negate the existence of an agreement which, because it is not certified, lacks the effect of an award. Such an agreement may nevertheless be binding on the parties to it.

However, as I see it, the B.L.F. had not shown a sufficient basis for the agreement which it alleged. Indeed, the B.L.F. made no attempt to call its own officers, Messrs. Capogreco and Wallace, to prove the conversations with Commissioner Turbet outlined by Mr. Capogreco in his submissions. Marks J. might have been better advised to defer his consideration of the application for a summons to Commissioner Turbet until the B.L.F. indicated more clearly whether it proposed to call other evidence. As events transpired, the B.L.F. denied themselves this opportunity by withdrawing from the proceedings.

The power to issue a summons addressed to the Commissioner flows from s. 41 (1) (n). It provides:

(1) The Commission may, in relation to an industrial dispute -

Sub-section (2) provides that a reference to an industrial dispute shall be read as including a reference to any other proceedings before the Commission, unless a contrary intention appears.

When application is made for the issue of a summons the Commission has a discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons. Special considerations apply to an application for a summons directed to a member of the Commission requiring him to give evidence of what he said and did in the performance of his duties. Then the summons should only issue when it appears that it is necessary for the purpose of doing justice between parties. In deciding whether such a case is shown to exist the Commission is entitled to consider whether there is a reasonable basis for concluding that the evidence of the member will assist the case of the parties seeking to call him. If no such basis is shown to exist the Commission will be justified in refusing to issue the summons.

Marks J. relied on two matters to support his refusal to issue the summons: (a) that it was undesirable that a member of the Commission should be required to give evidence of things said and done by him in the performance of his duties; and (b) that there was no arguable basis for the contention that there was a binding agreement between the two unions. In my opinion, having regard to the view which I have formed as to the making of the agreement, his Honour was entitled to refuse the summons.

Mr. Handley for the F.I.A. referred to s. 11A. He conceded that though it gives to a member of the Commission in the performance of his functions and duties the same protection and immunity as a judge of the Federal Court, it does not extend to confer an immunity from process or from giving evidence, at least in the circumstances of this case, where the evidence sought did not relate to the Commissioner's reasons for arriving at a decision. Consequently, the issue of a summons to the Commissioner would not have violated any rule of law. Nor would it have been a breach of any rule of law for the Commissioner to have given evidence in the proceedings before Marks J. of the conversations which he had with the representatives of the two unions. But, for the reasons which I have already given, Marks J. and the Full Bench were right to look closely at the question whether there was any reasonable basis on which the alleged agreement could be made out and whether Commissioner Turbet's evidence would assist the B.L.F. in making it out. In considering these questions both Marks J. and the Full Bench had the advantage of knowing what the Commissioner would say, if called as a witness.

In any event, what happened before Marks J. cannot constitute a basis for prohibition on the ground that there was a denial of natural justice. The B.L.F. exercised its right of appeal to the Full Bench. On an appeal the Full Bench may admit further evidence and it may confirm, quash or vary the award or decision under appeal or make an award or decision dealing with the subject matter of the decision under appeal (s. 35 (9) (a), (c) and (d)). In Twist v. Randwick Municipal Council [25] , this Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen's only right of redress against the council's failure to give him an opportunity to be heard before making a demolition order was by way of appeal. I refer to my judgment in that case [26] . See also Australian Workers' Union v. Bowen [No. 2] [26a] .

1. (1976) 136 C.L.R. 106. 2. (1976) 136 C.L.R., at pp. 113-117, esp. at p. 117. 3. (1948) 77 C.L.R. 601.

The present case has some similarities to Twist. There is here a full appeal on fact and law under s. 35. Moreover, s. 35 (9) (a) enables the Full Bench to admit further evidence. Further, by reason of their very nature and their capacity to create unemployment, to dislocate industry and to disturb the life of the community including the essential services on which the community depends, industrial disputes call for speedy and final determination, an object which is best achieved by recognizing that the remedy of a party complaining that he has been denied natural justice at first instance is to exercise his right of appeal under s. 35 to the exclusion of pursuing relief by way of prerogative writ.

There is a problem in saying that a member of the Commission is not under a duty to observe the rules of natural justice and there is a further problem in saying that the Parliament can oust the jurisdiction of this Court under s. 75 (v) of the Constitution to grant relief against an officer of the Commonwealth by way of prohibition for denial of natural justice. Even so, the B.L.F. exercised its right of appeal under s. 35 and the Full Bench examined the matter for itself. The B.L.F. does not suggest that there was any denial of natural justice in the appeal, except in so far as it submits that the Full Bench was wrong in upholding the decision not to issue the summons. In my opinion the B.L.F. received a full and fair hearing in the appeal and in those circumstances any denial of natural justice before Marks J. was irrelevant (Calvin v. Carr [1] ).

Clause 3 (1) of the F.I.A. rules provides that the union shall consist of an unlimited number of persons. There follows a number of paragraphs each setting out a category or categories of workers eligible for membership of the union. Paragraph (d) is in these terms:

(d) Dressers, grinders, drillers on stationary machines, furnacemen (including forge furnacemen), pipe moulders, tool storemen, and all labourers, general or special, engaged in the iron, steel and metal industries, or engaged in the cast-iron, pipemaking industry, steel locking bar pipe industry, riggers and scaffolders (other than riggers on ships and riggers and scaffolders employed in shipyards, dockyards and in building operations), machinists (excepting operators of punching, shearing, rivetting, rolling, bending, angle or plate straightening, nipping and notching machines, and smith machines), and all assistants to mechanics, and labourers general or special, employed in constructional shops in industries in or in connection with which this Union is registered as an organisation.

The B.L.F. submits that riggers engaged in structural steelwork fall within the exception "riggers employed in building operations" and are excluded from eligibility of membership of the F.I.A. Marks J. rejected this submission on the ground that the mast was not a "building". The Full Bench agreed with him. However, in this Court attention was rightly directed to the expression "building operations".

The meaning of the word "building" depends very much on the context in which it is found. In some circumstances it means a building providing accommodation for people; in others it will include a structure accommodating something whether it be animals, materials, plant or machinery; at other times it signifies a mere structure or edifice e.g. a bridge, a tank or a tower. My inclination is to think that the word "building" is generally used in the widest of the three senses mentioned above, but the meaning which should be attributed to the word here, as always, depends on the particular context.

Here the context is to be found in the critical expression "building operations". "Building" when used as an adjective in the expression "building operations" sometimes has a larger content than it has when used as a noun. "Building operations" is an expression more often used to describe the erection of a mere structure, for the very good reason that the words make no attempt to describe what it is that is being built. Thus the building of a bridge, an oil refinery, a petro-chemical plant or even a transmission tower is accurately described as a building operation, and the company carrying out the work is correctly described as being engaged in "building operations".

Some support, albeit slight, for the view that that is the meaning which the expression has in cl. 3 (1) (d) is provided by the application made to the Registrar by the F.I.A. in 1924 when its constitution was amended so as to include "riggers" in the eligibility clause. Objections were made to this amendment by the Builders Labourers' Union and others. In the result the Registrar insisted that the amendment be qualified so as to exclude riggers "engaged in building operations". The transcript of the proceedings before the Registrar on 12 March 1924 reveals that after some discussion had taken place between the representatives of the two unions, the F.I.A. representative said: "We do not desire to take in men working in connection with building operations", and later, "We have never claimed any right to this work if it were done on buildings". After further discussion the Registrar made a number of comments. First he said:

Bridges have been held to come within the definition of buildings whether concrete or iron. For instance, underground tanks have been held to be buildings in England. That is Stroud's definition. Later he said: You see the times have changed and nowdays in building these structural buildings structural workers have come in and that same principle applies to bridges also; in the evolution of time all these things have been changed; for instance, if a portion of a bridge were being built and it were brick-work there is no doubt that the old custom was for the bricklayer to have his assistant with him and the carpenter would also have his assistant with him but on certain buildings nowdays those customs do not obtain, and the builders' labourer is now doing the work.

The subsequent decision of the Registrar to insist on an amendment excluding riggers "engaged in building operations", seen in the light of this history, tends to indicate that the exception was designed to exclude riggers engaged in the erection of structures other than buildings stricto sensu, e.g. bridges.

Another factor is that in a context in which the clause is designed to describe and define the class of persons eligible for membership there seems to be little point in distinguishing between riggers engaged in work on a building in the strict sense and those engaged in work on structures. A more rational and a more practical criterion would be to draw a line between riggers engaged in building operations in the wider sense and those who are not so engaged.

The F.I.A. seeks to counter the effect of the history by relying on the judgments in Reg. v. Watson; Ex parte Australian Workers' Union [2] to demonstrate that "building operations" are in essence operations carried on in the building industry by persons described as "builders". Reg. v. Watson was a decision on the B.L.F.'s eligibility clause. The clause provided that the B.L.F. should consist of persons employed as builders' labourers on or about any building, or assisting specified tradesmen engaged in building operations, or employed in any "making or contracting job" of work, in (inter alia) concrete or other materials incidental to building construction. It was held that the clause did not apply to operators employed by ready-mixed concrete suppliers in producing concrete at batching plants. Barwick C.J. said [3] : "the eligibility clause properly understood is restricted to workers in the building industry itself either doing the building work or doing work which is properly described as incidental to the building operations, generally, but not necessarily in all cases, on the building site." Menzies J. said [4] : "those who are employed at the batching plants are not employed by builders or their sub-contractors in building operations." Walsh and Gibbs JJ., who reached the same conclusion, expressed their reasons differently. The remarks of Barwick C.J. and Menzies J., though providing some support for the F.I.A. point of view, went beyond what was necessary for the decision in the case. It was in any event a decision on the B.L.F. rules and it should not be taken as having a consequential application to the F.I.A. rules.

1. (1972) 128 C.L.R. 77. 2. (1972) 128 C.L.R. at p. 79. 3. (1972) 128 C.L.R. at p. 85.

The question here is a difficult one and the arguments are finely balanced. Although my initial inclination was to favour the narrower construction of "building operations", one which would confine the operations to buildings that are designed to house people or plant, on reflection I consider that the riggers on the mast are engaged in a "building operation". It is with reluctance that I depart from a unanimous decision of the Commission on a question of this kind. I do so because in my view the Commission did not address itself to the words "building operations". Instead, it directed its attention to the question whether the mast is a "building".

Since writing what appears above, I have had the advantage of reading the judgments prepared by other members of the Court. They discuss the question, not raised by Mr. Handley for the F.I.A., whether to attribute the larger meaning to the expression "building operations" in the excluding words of cl. 3 (1) (d) of the F.I.A. rules - the meaning which I favour - would be to denude the words "riggers and scaffolders" in the main part of the clause of any significant content. With respect I agree with Murphy and Brennan JJ.'s reasons for answering this question in the negative.

The Commission may, on the application of an organization, an employer or the Minister or the Bureau, if it thinks it in the public interest to do so, make an order providing that an organization of employees shall have the right to represent, in respect of all or some industrial interests under this Act, a class or group of employees who are eligible for membership of the organization, either generally or subject to such limitations as it may specify, to the exclusion of another organization or organizations and may make such orders as it thinks necessary in consequence of such an order.

The sub-section enables the Commission to make an order that an organization shall have the right to represent a class or group of employees who are eligible for membership in it to the exclusion of other organizations. To give full effect to the words of the sub-section involves no exercise of judicial power. In this respect three comments only are called for. First, the making of an order pursuant to the sub-section creates a new right in the organization; the order is not merely declaratory of an antecedent right. Secondly, the right thereby created operates only in respect of a class or group of employees who are in fact and law eligible for membership of the organization. Thirdly, the sub-section does not attempt in any way to hinge the new right on the Commission's opinion as to the eligibility of the class or group for membership or to make the Commission's opinion on that question conclusive. Obviously the Commission has to decide for itself the question of eligibility for membership, but the status of its finding on that point is that of a finding as to a jurisdictional fact, one which is capable of review on prohibition under s. 75 (v) of the Constitution.

In the result I would order that the proceedings be amended by joining the members of the Full Bench, and I would then grant prohibition directed to the existing respondents and the members of the Full Bench.

I agree with Mason J. In the Australian Conciliation and Arbitration Commission concentration on the question of whether there was a denial of natural justice distracted attention from the critical question of whether the Federated Ironworkers' Association (F.I.A.) "covered" the work in question. The F.I.A.'s eligibility rule includes "riggers and scaffolders (other than riggers on ships and riggers and scaffolders employed in shipyards, dockyards and in building operations)".

The question directly in issue is the scope of "building operations" in the exclusion clause of the F.I.A.'s rules. Both the F.I.A. and the Australian Building Construction Employees' and Builders Labourers' Federation (B.L.F.) have submitted, correctly, in my opinion, that the term "building operations" means the same in the rules of both organisations. As Marks J. said "Taking into consideration the history of the amendment to the F.I.A. rules in 1924, I accept the submission of Mr Sweeney (counsel for the F.I.A.) that the term "in building operations" in the rules of the B.L.F. and the F.I.A. should be given the same meaning."

In the Commission, Marks J. at first instance, and on appeal the Full Bench (Williams and Robinson JJ. and Commissioner Neyland) assumed that the test of building operations was simply whether what was being erected was a building. Because of the absence of the B.L.F. the Commission was deprived of adequate argument on the issue. The Full Bench referred to the B.L.F.'s argument that it was not necessary for Marks J. to decide, as he did, that the work did not involve "building operations" within the B.L.F. rules, and stated "Nevertheless there appears to be no attack on His Honour's finding that the Omega mast was not a building and on the information before the Commission we have no reason to disagree with him as to this. However his comments regarding the application of the B.L.F. rules are not essential either to his decision under s. 142A or to this appeal."

In my opinion the Commission was in error in accepting that there were no building operations unless what was being built was "a building". The phrase "building operations" does not mean operations of a building or buildings, it means operations of building. The adjective "building" is derived from the verb "to build" not from the noun "building". One builds bridges, towers and other structures as well as buildings. The composite expression "building operations" means the same as "building work" which appears in numerous safety codes. In any event, in Australian industrial relations, as in ordinary language, "building" is not confined to those structures which are to house people or goods or machines.

The meaning of "building operations" has been the subject of much attention by industrial tribunals in Australia. It has been held, always as far as I am aware, to be a wide one. In Australian Builders Labourers' Federation v. Atkinson [5] , Deputy President Quick said:

In the term "building operations" the adjective "building" appears to have a wider meaning than the noun "building" meaning an actual structure. Building operations might include such work as building a bridge; building a tower; building a silo; building an archway. The noun "building" would primarily mean a house, a church, an edifice, a ship, or some structure having walls and a roof, or a wall without a roof, such as a tennis court, or a roof without a wall, such as a monument like a Greek temple, with a dome rising on pillars.

As to what constitutes a building is always a question of degree and circumstance. I do not think that the term "building" can be limited to a place for human habitation or storage.

He then applied the term building operations to the construction of various structures such as a large steel structure and loading platform which would fall outside the narrow meaning contended for by the respondent, but held that it did not apply to minor erections such as electric light poles. 1. (1924) 19 C.A.R. 419, at p. 421.

In Australian Builders Labourers' Federation v. Anderson [6] Deputy President Quick held that the erection of a concrete pier and steel girder bridge over the Barwon River "comes within the meaning of the terms "building" or "building operations", without the necessity of deciding whether there is any distinction between the two expressions" but added "This finding, however, does not necessarily mean that an ordinary local drainage culvert which might be constructed in a particular situation under a road would come within the meaning of the term "building"."

In both those cases Deputy President Quick referred to an unreported case Taylor v. Monier Pipe and Reinforced Concrete Co. decided by the Supreme Court of Victoria on 4 December 1914. In that case it was held by Hodges and a'Beckett JJ., (Hood J. dissenting) "that a man employed by a concrete bridge building company doing concrete work in connexion with a kind of tower or elevated tank 60 feet high required for the purpose of holding water, was a builders' labourer within the meaning of the Commonwealth award " [7] . This conclusion depended on his being engaged either in building operations or in construction or repair of a building.

In Australian Builders Labourers' Federation v. South Australia [8] , Drake-Brockman J. followed the 1924 decision of Deputy President Quick and held that large concrete water storage tanks were buildings.

In Re Construction of Swimming Pool and Attendant Facilities at Prince Alfred Park, Sydney [9] the Industrial Commission of N.S.W. (De Baun, Cook and McKeon JJ.) applied the 1924 decision of Deputy President Quick and held that a large public in-ground swimming pool, its sewerage and drainage lines and an open skating rink and concrete concourse were buildings and that the construction of them came within the scope of the Builders Labourers' Union rules. These were the rules of the New South Wales trade union counterpart of the B.L.F. and the coverage depended on the work being on or about any building or in building operations or in the construction of buildings (which are the same as the words in the B.L.F. rules).

These cases support the B.L.F.'s contention that the Omega mast is a building, and even if it were not, that the work is building work and "building operations".

The respondent F.I.A. did not answer these cases. It submitted that they could be ignored because of the decision of this court in Reg. v. Watson; Ex parte Australian Workers' Union [10] . In my opinion that case throws no light at all on the question. It concerned whether the operation of a concrete batching plant came within the conditions of eligibility for membership of the B.L.F., and did not require any decision on the point in issue here. The respondent therefore presents no answer to the powerful argument that the consistent course of industrial decision over half a century has been in favour of the view that the riggers employed in construction of the Omega mast are engaged in building operations.

To give this meaning to "building operations" does not denude of any operation the other words in the exclusion clause. It may be assumed that many operations carried out by riggers on ships and riggers and scaffolders in shipyards and dockyards would also satisfy the description of "building operations" for which the B.L.F. contends (no doubt some such work would also fall within the meaning for which the F.I.A. contends); this only means that there is an overlap in the words of exclusion (which often occurs in such clauses). Only if all such operations satisfied the description "building operations" would the other words of exclusion be denuded of operation. This cannot be assumed, and not unexpectedly, there is no evidence to that effect. The respondent did not advance the argument. It would be persuasive only if it could be demonstrated that all possible work of riggers on ships and riggers and scaffolders in dockyards and shipyards would be covered by the meaning of "building operations" contended for by the applicant, but not by the meaning contended for by the respondent.

It may not have been strictly necessary for Marks J. to decide on the meaning of "building operations" in the B.L.F. rules. However the history of the two organisations (and particularly the history of he exclusion clause) suggests that the phrase "building operations" appearing in the two rules should be given the same meaning. It would inject an element of artificiality and confusion if two different meanings, one narrow and one wide, were given to the phrase. If a narrow meaning were adopted the result would be to reduce the B.L.F.'s coverage and to exclude it from work which for many years has been regarded as within its industrial coverage.

My conclusion is that the erection of the Omega mast is within the meaning of "building operations" in the exclusion clause of the F.I.A.'s rules. It follows that the F.I.A. is not entitled to enrol persons engaged as riggers or scaffolders in that work, and that s. 142A of the Conciliation and Arbitration Act 1904 as amended was not applicable to enable an order to be made giving representation to the F.I.A. Section 142A does not purport to vest the Commission with judicial power.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Mason and those prepared by my brother Wilson. Like my brother Wilson I do not find it necessary to repeat the facts or the nature of the issues raised.

I am in agreement with the conclusions and reasons of my brother Mason on two of the issues, namely, whether there was a failure to comply with the requirements of natural justice and whether s. 142A of the Conciliation and Arbitration Act 1904 requires or authorizes an exercise of judicial power. I also agree with his reasons for concluding that the members of the Full Bench of the Commission should have been joined as respondents to the application. I would grant the necessary leave to amend.

I am however unable to share his view on the remaining issue, namely, whether the workers in question were eligible to be members of the Federated Ironworkers' Association of Australia as falling within its eligibility rule, the terms of which are set out in other judgments. Marks J. found that those workers were "riggers" and that finding was not challenged.

I agree with Wilson J. in thinking that the question is what is the meaning of the exclusion of "riggers employed in building operations" in the eligibility rule of the Federated Ironworkers' Association and not whether the relevant employees would be eligible for membership of the Builders Labourers' Federation. The expression used in the Federated Ironworkers' Association rules must be read in its general and in its immediate context. The relevant part of the exception is "other than riggers on ships and riggers employed in shipyards, dockyards and in building operations". In that context the words "building operations", if given the meaning contended for by the Builders Labourers' Federation, would make all the words quoted redundant except "other than riggers employed in building operations". That is an unlikely intention and is contrary to what seems to me to be the plain meaning of the whole phrase. I agree with Wilson J. that the history (which he recounts) of this clause in the proceedings before the Industrial Registrar in 1924 supports this construction. I would not regard such material as capable of overriding what would, viewed alone, be plain and unambiguous, but that question does not arise in the present case.

In the result I agree that the expression "building operations" in cl. 3 (1) (d) means operations involving the construction of buildings. I can see no reason for differing from the view of Marks J. that the Omega mast is not a building.

Accordingly I would dismiss the application for prohibition against Marks J. and the Full Bench of the Commission.

I have had the advantage of reading the reasons for judgment prepared by Mason J., and it is unnecessary for me to recapitulate the facts of the case and the issues which have been debated. With respect, I agree with his Honour's conclusion on two of the three grounds on which the prosecutor seeks a writ of prohibition. In the circumstances of the case, I do not think that there was any breach by Marks J. of the principles of natural justice. Nor do I think that on its proper construction s. 142A of the Conciliation and Arbitration Act 1904 involves the exercise of judicial power. I do not wish to add anything to what his Honour has written on these matters.

In my opinion, the difficult question requiring resolution is whether Marks J. was without jurisdiction to make an order in favour of the Federated Ironworkers' Association of Australia ("the F.I.A.") touching the six employees of Electric Power Transmission Pty. Ltd. ("E.P.T.") who were engaged in working aloft on the Omega mast, placing in position the structural steel members which formed it. In finding that these workers were properly described as "riggers", Marks J. cited the definition of that term in the Metal Industry Award as including "an adult employee who is responsible for, inter alia, the rigging involved in the erection, placing in position and dismantling of structural steel, and for the erection of tackle with wire, or ropes for lifting" (cl. 41 (45) (a)). That finding is not contested. The submission of the applicant ("the B.L.F.") is that the workers in question are not eligible to be members of the F.I.A. because they are riggers employed in building operations; an order giving that organisation the exclusive right to represent them is therefore beyond the jurisdiction of the Commission.

The eligibility clause of the F.I.A. rules (cl. 3 (1)) describes a number of categories of workers eligible for membership of the organisation, including the following:

(d) Dressers, grinders, drillers on stationary machines, furnacemen (including forge furnacemen), pipe moulders, tool storemen, and all labourers, general or special, engaged in the iron, steel and metal industries, or engaged in the cast-iron, pipemaking industry, steel locking bar pipe industry, riggers and scaffolders (other than riggers on ships and riggers and scaffolders employed in shipyards, dockyards and in building operations), machinists (excepting operators of punching, shearing, rivetting, rolling, bending, angle or plate straightening, nipping and notching machines, and smith machines), and all assistants to mechanics, and labourers general or special, employed in constructional shops in industries in or in connection with which this Union is registered as an organisation (my emphasis).

Marks J. concentrated his attention on the question whether the Omega mast was a "building", and concluded that it was not. From that conclusion it was thought to follow as a matter of course that the riggers in question were therefore not involved in building operations and were eligible for membership of the F.I.A. It would have been preferable for the learned Deputy President in construing the scope of the eligibility clause to focus on the words "building operations", a term which may provide a broader frame of reference than the word "building". Viewed simply as a matter of language, the former term describes the nature of the activity rather than the resulting product. His Honour appears to have grounded his conclusion on the evidence of two witnesses who expressed the opinion that the mast was not a building and to have made his own evaluation of "the essential nature of the structure itself as revealed on inspection, and the evidence as to the method of its erection". With respect, I think his Honour's consideration of the problem was inadequate, although the reference to evidence of the method of its erection touches on an important criterion of the wider concept. He was denied the benefit of any submissions from the B.L.F., that organisation having chosen to refrain from continued participation in the proceedings. Again, when the appeal was before the Full Bench the focus of the complaint in this regard appears to have been that his Honour erred in finding that the riggers were not eligible for membership of the B.L.F. The only relevant passage in the reasons of the Full Bench is the following: Other points raised by the appellant were:

1. Whereas there was no dispute that the persons held to be riggers were in fact riggers it was not necessary for Justice Marks to decide, as he did, that the work did not involve "building operations" within the BLF rules. Nevertheless there appears to be no attack on his Honour's finding that the Omega mast was not a building and on the information before the Commission we have no reason to disagree with him as to this. However his comments regarding the application of the BLF rules are not essential either to his decision under section 142A or to this appeal.

The question whether the work under consideration was capable of attracting the eligibility provisions of the rules of the B.L.F. appears to have distracted attention from the central issue, namely, whether the workers so employed were eligible for membership of the F.I.A. It may be said that the construction of the term "building operations" holds the key to the understanding and application of the eligibility rules of both the B.L.F. and the F.I.A. because the same term is used, but such an approach could lead to error. The term is of variable content, and its meaning must be found in the context. The different context provided by the rules of the two organisations might well, in my opinion, yield different meanings of the term "building operations". In any event, the only relevant question is whether the exclusion of "riggers employed in building operations" from membership in the F.I.A. has application to the six riggers engaged on the mast. It is quite irrelevant to consider whether they are eligible to belong to the B.L.F.

As I have said, the term "building operations" is a term of variable content. An indication of the elasticity of the term is afforded by some of the early interpretations of awards in this country. In Australian Builders Labourers' Federation v. Atkinson [11] , Deputy President Quick said:

In the term "building operations" the adjective "building" appears to have a wider meaning than the noun "building" meaning an actual structure. Building operations might include such work as building a bridge; building a tower; building a silo; building an archway. The noun "building" would primarily mean a house, a church, an edifice, a ship, or some structure having walls and a roof, or a wall without a roof such as a tennis court, or a roof without a wall such as a monument like a Greek Temple with a dome rising on pillars. As to what constitutes a building is always a question of degree and circumstance. I do not think that the term "building" can be limited to a place for human habitation or storage. but at p. 426 the learned Deputy President allowed some exclusions: "I do not think that erecting electrical apparatus or switch-gear or masts or framework or poles to carry electric current wires is building or building operations within the award". See also Australian Builders Labourers' Federation v. Anderson [12] ; and Australian Builders Labourers' Federation v. South Australia [13] . 1. (1924) 19 C.A.R. 419 at p. 421. 2. (1926) 23 C.A.R. 301, at pp. 304-305. 3. (1927) 25 C.A.R. 279.

The question is so much one of fact and degree that it would normally behove an appellate court to pay great regard to the judgment of the primary tribunal. However, in this case for the reasons I have mentioned the consideration of the issue was inadequate, and I feel obliged to approach the matter afresh.

I have come to the conclusion that the riggers in question are eligible for membership of the F.I.A., for the reason that they are riggers within the meaning of that term in the Metal Industry Award and that while engaged in working aloft on the Omega mast assembling the steel members of it they are not engaged in "building operations" in the sense in which that term is used in cl. 3 (1) (d) of the F.I.A. rules. I find support for this conclusion in the following considerations:

(a) The words "building operations" are associated with words of exclusion or limitation, and cannot be construed so widely as to deny any meaningful operation to the primary proposition. If the term "building operations" was construed to include any process of construction, and the essential task of a rigger is the erection, placing in position and dismantling of structural steel then the primary reference to riggers in the eligibility clause would be denuded of any significant content:

(b) The association in the exclusion clause of "building operations" with "shipyards" and "dockyards" invites a limited construction in that the clause identifies particular areas of work in which eligibility is denied. A wider construction would mean that the clause is repetitive, in that there must be many operations carried out by riggers in dockyards and shipyards which would also satisfy the description of "building operations":

(c) An examination of the record of the proceedings before the Industrial Registrar on 11 and 12 March 1924 on an application by the F.I.A. to amend its eligibility clause so as to include, inter alia, riggers and scaffolders, tends in my opinion to confirm that the reference to "building operations" in the exception is concerned with "buildings". The Builders Labourers' Union (the predecessor to the B.L.F.) objected to the inclusion of riggers and scaffolders, alleging an agreement between the two unions "that riggers and assistants to all artisans employed on all structural and steel work on purely building operations should belong to us" (that is, the B.L.U.). The Registrar pressed that objection on the F.I.A.'s representative saying: "Then with regard to the Builders Labourers' objection as to riggers and scaffolders on buildings: now, they are surely builders' labourers?" The representative of the F.I.A. answered: "I concede that when they are on the buildings". The parties were then sent away to seek agreement, and reported back to the Registrar on 12 March. The F.I.A. representative reported that, with respect to the B.L.U.: " we agreed, as far as the riggers and scaffolders on buildings are concerned. We do not desire to take in men working in connection with building operations, and as a matter of fact we have never taken them in in all our lives and there need be no doubt on that score." Later in the discussion he again stressed that the F.I.A. did not want riggers "on the buildings". The Registrar nevertheless questioned the need for any reference to riggers at all, whereupon the B.L.U. representative intervened, saying: "Provided they add the words "excepting riggers and scaffolders in building construction" I do not see that it can do any harm." Of course, there is need for caution in using material of this kind to ensure that it does not divert attention away from the text requiring to be construed; nevertheless, I find it of assistance in confirming my resolution of the ambiguity in the clause.

I would therefore construe "building operations" in cl. 3 (1) (d) as limited to operations involving the construction of buildings. This brings me back to a consideration of the conclusion reached by Marks J. based on the evidence and an inspection of the project. I see no reason to differ from him in that conclusion. The Omega mast is not a building. The riggers engaged in assembling it are eligible for membership of the F.I.A., and the challenge to jurisdiction on this ground fails.

A Full Bench of the Australian Conciliation and Arbitration Commission dismissed an appeal against an order made by Marks J., a Deputy President of the Commission, providing that from 22nd July, 1980 the Federated Ironworkers' Association of Australia ("the F.I.A.") should have the right to represent in respect of all industrial interests certain employees of Electric Power Transmission Pty. Ltd. to the exclusion of the Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F."). The order applied to all riggers, inter alios, employed by Electric Power Transmission Pty. Ltd. in or in connexion with the construction of the Omega Navigational Aid Station at Darriman in Victoria.

The order had been sought by the F.I.A. under s. 142A of the Conciliation and Arbitration Act 1904, which empowers a Presidential Member of the Commission to make such an order on the application of an organization in respect of a class or group of employees "who are eligible for membership of the organization". The application had been opposed by the B.L.F. When the Deputy President made the order, the B.L.F. appealed to the Full Bench pursuant to s. 35 (2) (d) of the Act. At the conclusion of the hearing, the Full Bench confirmed the order which the Deputy President had made (see s. 35 (9) (c)).

The B.L.F. then sought and obtained an order nisi for a writ of prohibition directed to Marks J. alone, but it now seeks leave to amend its application so that the writ will be directed also to the Full Bench. That application should be granted.

There are three grounds upon which the B.L.F. relies to found its application for a writ of prohibition. The first ground alleges a denial of natural justice in the proceedings before the Deputy President; the second asserts that the employees to which his order applies are ineligible to be members of the F.I.A.; and the third asserts that an order which gives to one organization a right to represent employees to the exclusion of another organization on the grounds that the relevant class or group of employees are not eligible for membership of the latter organization would require the exercise of judicial power.

If there were substance in the first ground, it would be necessary to consider whether and in what circumstances a hearing before and an order of confirmation made by the Full Bench might cure a denial of natural justice in proceedings before a Presidential Member, and to consider whether an order of confirmation supersedes an order made by a Presidential Member under s. 142A. But in my opinion those questions may be put aside, for I can find no denial of natural justice in the proceedings before the Deputy President.

I need not repeat the facts which are set out in my brothers' judgments. When Marks J. consulted Commissioner Turbet in private, he acted in accordance with a request by the solicitor for the B.L.F. to do so, in order to ascertain from the Commissioner whether an agreement had been made by the B.L.F. and F.I.A. in settlement of their demarcation dispute. No complaint can be made about the consultation. No complaint was made about the consultation when Marks J. disclosed its result. The consultation with Commissioner Turbet did not bear out the B.L.F.'s suggestion that an agreement had been made. Before Marks J. the solicitor for the B.L.F. sought to draw some support for his suggestion that an agreement had been made by reference to a telegram sent by Commissioner Turbet. The Commissioner had sent the telegram to the B.L.F. and F.I.A. after they had conferred before him on their demarcation dispute. But that telegram did not support the suggestion that an agreement had been reached. It merely set out, to use its words, "for your information basis for settlement FIA/BLF demarcation dispute". The solicitor for the B.L.F., acknowledging that the agreement had not been proved, sought an adjournment "to call evidence to prove the existence of the agreement and its terms". The adjournment was granted, and dates for a resumed hearing were set.

When the Deputy President next sat to hear that evidence, the B.L.F. withdrew saying that it had been "refused the calling of evidence from members of the public which was vital and appropriate". The B.L.F. was at liberty to tender evidence relevant to establish the existence of the agreement it had alleged. It was invited to do so. Nothing was offered to the Deputy President in support of its complaint, and nothing now appears to support it. It does appear, however, that during the adjournment an application by the B.L.F. for the issue of a witness summons to Commissioner Turbet had been refused, and the B.L.F. protested that members of the Commission are "not immune to summons". Was the Deputy President under an obligation to issue a witness summons to Commissioner Turbet? I think not.

What was the purpose to be served at that stage of the proceedings by compelling the attendance of Commissioner Turbet as a witness to be called on behalf of the B.L.F. upon the issue of the alleged agreement? It may be surmised that the B.L.F. desired the Commissioner to be submitted to cross examination, but that furnished no ground for the issue of a summons to him prior to the tendering of any affirmative evidence of an agreement. Assuming for the purposes of the present case that Marks J. had power to issue a witness summons to Commissioner Turbet, at that stage of the proceedings he was right to refuse the summons at the request of a party which had not then attempted to show that an agreement had been made, and which had not then shown any ground for believing that its case might be advanced by the Commissioner's testimony. It was not a case of refusing to allow a party to cross-examine his accuser; nor was it a case of the Commission resolving a conflict of evidence without allowing a party to test the evidence against him. There was then no conflict of evidence: the information was uniformly against the existence of an agreement.

The B.L.F. had undertaken to prove that an agreement had been made, but it failed to offer any evidence of it. It had invited the consultation with Commissioner Turbet as a means of proving the agreement, but it failed to prove the agreement by that means. It declined to offer any other proof, though the B.L.F. representatives who allegedly made the agreement might have been called to give evidence if the B.L.F. wished to establish the agreement. A summons could have led only to the cross-examination of the Commissioner to whom the B.L.F. had unsuccessfully referred in support of its unsubstantiated allegation of an agreement. The refusal of a summons in these circumstances furnishes no ground for alleging a denial of natural justice.

Once the B.L.F. withdrew from the proceedings, the Deputy President was left with the information given to him by Commissioner Turbet and the text of the telegram sent by the Commissioner. On this information, and without countervailing evidence, the Deputy President was entitled to proceed on the footing that no agreement had been reached between the B.L.F. and the F.I.A. There was no denial of natural justice affecting the order made by him on that footing. The first ground fails.

The second ground turns upon the construction of par. (d) of cl. 3 (1) of the rules of the F.I.A. The relevant part of par. (d) relating to eligibility of riggers for membership reads:

riggers and scaffolders (other than riggers on ships and riggers and scaffolders employed in shipyards, dockyards and in building operations). Riggers generally are eligible for membership, but riggers employed in building operations are not eligible. How were the riggers in this case employed? They were employed in the operation of building the Omega tower. Both the Deputy President and the Full Bench of the Commission held that the tower is not a "building", and therefore they held that the riggers in question were not excluded from membership of the F.I.A. as "employed in building operations". I would agree that the Omega tower is not a building; but it does not follow that the riggers were not employed in building operations. The criterion of eligibility looks to the nature of the operation in which the rigger is employed, not to the nature of the structure upon which he is employed to work. A rigger who is engaged in the operation of building a structure which is not a building, may nonetheless be engaged in a building operation, and a rigger who is so employed is not eligible for membership of the F.I.A. Although the relevant distinction is between building operations and other operations, the nature of the operations in which riggers are employed necessarily reflects the object of the work in hand. When the object of work is the construction of a building or other structure such as a wall or tower built on and fixed to land, the riggers engaged in that construction may readily be held to be employed in building operations. They are then employed in operations of a kind ordinarily involved in the construction of a building.

But this is not the only kind of operation in which riggers may be employed; at all events, I do not apprehend that this understanding of the phrase "building operations" would bring into the categories of exclusion from eligibility all riggers howsoever employed. If that were the fact, the categories of eligibility and ineligibility could be given content only by limiting the category "riggers employed in building operations" to riggers employed in the construction of buildings. But rigging operations outside shipyards and dockyards which are not building operations can be envisaged, although it would not be desirable to discuss particular examples before concrete cases arise for determination.

Suffice for the present to say that the operation of building the Omega tower, adding new components to bring the structure to its intended height, is a building operation. Accordingly, the riggers employed in that operation are not eligible for membership of the F.I.A. The condition of eligibility prescribed by s. 142A was not satisfied and neither the order made by the Deputy President nor the order of confirmation made by the Full Bench can be allowed to stand. It follows that a writ of prohibition must go to the Commission.

As to the third ground relied on, I agree with the judgment of Mason J. that there is no substance in it. I agree also with the orders his Honour proposes.