Re Neil and Australian Theatrical and Amusement Employees Association; Ex parte Cinema International Corporation Pty Ltd [1976] HCA 11

The question whether an industrial dispute has arisen between the Association and the prosecutors depends on whether any employee of the prosecutors is eligible for membership of the Association. If no employee of the prosecutors could become a member of the Association, the Association could not represent that class of employees for the purpose of making demands on the prosecutors and no industrial dispute could arise between the Association and the prosecutors: R. v. Portus; Ex parte Federated Clerks Union of Australia [1] ; Reg. v. Watson; Ex parte Australian Workers' Union [2] ; Reg. v. Aird; Ex parte Australian Workers' Union [3] . This question depends upon the proper construction of the conditions of eligibility of the Association rather than upon the description of the industry in respect of which the Association is registered: Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [4] ; Reg v. Clarkson; Ex parte Victorian Employers Federation [5] .

1. (1949) 79 C.L.R. 428, at pp. 432-433, 436. 2. (1972) 128 C.L.R. 77. 3. (1973) 129 C.L.R. 654. 4. (1957) 97 C.L.R. 71. 5. (1973) 131 C.L.R. 100.

The conditions of eligibility for membership of the Association, so far as they are material, provide as follows:

The Association shall be composed of an unlimited number of employees employed in any kind of amusement, whether outdoor or indoor, or in or about the theatres, halls, racecourses, sports, exhibition and agricultural shows, or in all aspects of Motion Picture Film Production including Producers; Directors; Production and/or Studio Unit Managers; Assistant Directors; Dialogue and/or Commentary Writers; Script and/or Continuity Recordists; Location and/or Talent Scouts; Contact Men; Make-up Artists; Casting Directors; Art Directors; Chief Cameramen; Operative Cameramen; Special Effect and/or Process Cameramen; Title and/or Cartoon Cameramen; Camera, Dolly and/or Rotambulator Operators; Slate Operators; Studio Grip Men; Studio Mechanists; Chief Sound Engineers; Sound Engineers; Sound Recordists; Microphone Boom Operators; Sound "Mixers"; Film Editors; Film Cutters; Specialist Film Cutters; Film Librarians; Film Vault Keepers; Film Splicers; Laboratory and/or Studio Maintenance Men; Film Stock Keepers; Film Laboratory Managers; Film Laboratory Technical Supervisors; Film Laboratory Chemists; Film Printing Operators; Film By-Product Recovery Chemists; Film "Timers"; Film Cleaners and/or "Waxers"; Film Checkers; Laboratory and/or Studio Projectionists; Film Processors; Film Graders; Film "Despatchers"; Film "Packers"; and Film Examiners throughout the Commonwealth of Australia These conditions refer to three classes of employees although those classes may of course overlap. The first class comprises employees "employed in any kind of amusement". It may be conceded that the viewing of motion picture films may be an amusement, and that persons employed in the exhibition of films may be employed "in any kind of amusement" within the meaning of the conditions. The Commissioner took the view that the presentation of films to the public is the joint result of activities carried out by distributors and exhibitors and that the employees of the distributors are employed in an amusement. Although I would give the conditions as liberal a construction as they are capable of bearing, I am unable to agree that a person employed to supply to others something that those others use to provide amusement can himself be said to be employed "in any kind of amusement" within the ordinary meaning of those words. The expression "in any kind of amusement" is a narrower one than "in connection with any kind of amusement". The preposition "in" indicates that the nature or scope of the activity of the employee is indicated by the following words - he must be directly engaged in the amusement, and not merely engaged in some related activity. It may be possible to say that a person who shifts the scenes or controls the lighting during a theatrical performance is employed in amusement just as much as an actor is, but the same cannot be said of a shopkeeper from whom the wardrobe used in the course of the performance is brought or hired. Similarly a man employed in a sports store is not employed in games although he provides the goods without which the games cannot be played. For these reasons, persons employed in the distribution of films intended to be exhibited to the public are not themselves employed "in any kind of amusement", although the subsequent exhibition of the films may be an amusement within the meaning of the conditions.

The second class of employees referred to are those employed "in or about the theatres, halls " etc. It is of course clear that this description could not apply to most of the employees of the prosecutors and its possible application arises only in relation to those who are employed as salesmen and who in that capacity visit cinemas and halls. A salesman who is required to visit a theatre in the course of his business cannot properly be described as employed in or about the theatre. A person cannot be said to be employed in or about a theatre unless the theatre is the place in or about which he ordinarily performs the duties of his employment. To say that a person is employed in or about a place "involves the idea of an employment connected with the business carried on at the place indicated": Owens v. Campbell Ltd. [6] . An employee who is required to leave what might be called his headquarters, and to visit other places in the course of his employment, is not employed in or about those other places; for example, a clerk who goes to the post office to post a letter, or to a court to file a document, or to a warehouse to make a purchase, on behalf of his employer, is not employed in or about the post office, court or warehouse. The words describing the second class are quite inapt to refer to a salesman who, on behalf of his employer, visits a cinema to do business with the exhibitor who carries on business there.

The third class described in the conditions comprises employees employed "in all aspects of Motion Picture Film Production". Production may be closely associated with distribution, but the two things are not the same. Distribution occurs after production has been completed. Reliance was placed on the words "in all aspects" but those words do not expand the class described beyond persons employed in production; no doubt all kinds and modes of production are intended to be encompassed but the words apply only to persons who in one way or another are engaged in the production of films. None of the employees of any of the prosecutors is engaged in any aspect of production.

For these reasons it must be concluded that the words of the conditions of eligibility are not wide enough to enable any of the employees of the prosecutors to become members of the Association and that therefore no industrial dispute can be created by the delivery of a log of claims on the prosecutors by the Association. Accordingly the Commission had no jurisdiction to entertain the alleged dispute so far as it related to employees of the prosecutors.

The order nisi was too general in its terms and should be amended so that it refers to a writ of prohibition prohibiting the respondents and each of them from proceeding further in the matter of C No. 2690 of 1974 in respect of the prosecutors. I would make absolute the order nisi as so amended. It was agreed that there should be no order as to costs.

I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs and agree with them.

It is necessary to decide whether the preposition "in" as used in the phrase "employed in any kind of amusement" is used simply as a preposition of location (See entry I in the Oxford English Dictionary under the definition of "in") or as a preposition of occupation or engagement (See entry II.11 where it is noted that it is so used chiefly with nouns of action and the verbal substantives and II.17 where it is described as "expressing reference or relation to something: In reference or regard to; in the case of, in the matter, affair or province"). The substantive "amusement" may be a verbal substantive, i.e. the action or activity of amusing, or it may be used in a concrete sense as the thing which amuses. If "amusement" be used in the latter sense, the preposition "in" should probably be held to be a preposition of location; on the other hand, if the word "amusement" be used in the former sense then the preposition should be read as a preposition of occupation or engagement or as expressing reference or relation to something.

In my opinion the word "amusement" is not used in the concrete sense of the thing which amuses - the play, or the film or whatever - and the preposition "in" is not used as a preposition of location. That would be a very narrow construction of the word in the context. It would mean that an employee would only be employed in an amusement if he were physically participant in the play or film or other entertainment. "Amusement" is here used as a verbal substantive. It is used in the active sense to describe the action or activity of amusing. The preposition "in" is used not in the sense of location but to express reference or relation to the action or activity of amusing - in the matter or province of that action or activity.

That the word "amusement" should be held to mean "the action or activity of amusing" rather than the concrete result of the action is assisted by the whole context of the eligibility clause. That clause covers all aspects of motion picture production. As well, it covers motion picture exhibition. It would seem to me to be a strange result if the employees engaged in the acts which fall to be done between production and exhibition were found to be excluded from eligibility. This context also assists in giving the preposition "in" the meaning "in relation or reference to" and "in the matter, affair or province of" rather than a merely locational sense.

The task of the Commissioner was to apply the words "employed in any kind of amusement" properly construed to the acts done by the employees in order to determine whether those acts fell within the words. Provided that more than one conclusion was open, this was a question of mixed fact and law and one of degree. Federal Commissioner of Taxation v. Broken Hill South Ltd. [7] ; N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation [8] ; Australian Gas Light Co. v. Valuer-General [9] per Jordan C.J. The application of the words properly construed to the factual situation involved a determination of the province of amusement and a determination of the degree of relationship between the acts of the employees in the prosecutor companies and the action of exhibiting the film. Though any determination is necessarily subject for constitutional reasons to a review by this Court, such a matter is one which the respondent Commissioner was especially qualified to determine on such facts as might properly be taken into account by him. This Court would need to be satisfied that the conclusion of the Commissioner was certainly wrong before it should interfere on the ground that the Commissioner's exercise of powers under the Conciliation and Arbitration Act was ultra vires s. 51 (xxxv.) of the Constitution. I am not so satisfied.

1. (1941) 65 C.L.R. 150, at p. 154. 2. (1956) 94 C.L.R. 509, at p. 512. 3. (1940) 40 S.R. 126, at pp. 137-138.

In the whole context of the eligibility clause I am of the opinion that it has not been shown that persons employed in reference to or in the province of any kind of amusement do not include those employed in the distribution of films for purposes of their exhibition. I cannot in a review of the respondent Commissioner's conclusion say that it was beyond the limits of constitutional power. The picture films are produced and made in most cases abroad and are imported by the prosecutors. It would seem that everything after production and import but preliminary to the exhibition of a film is the concern of the distributor. It obtains necessary censorship and customs clearances. It checks, examines, cleans and splices the film. It negotiates agreements for the showing of a film by exhibitors. It screens it for the information of prospective hirers. It arranges screening dates. It advertises and promotes the film. It despatches the film to the exhibitor and retrieves it. Upon retrieval it does any necessary checking, examining, clearing and splicing. It appears to me that some, if not all, of these acts are in reference to or in the province of an action or activity of amusing and that the employees who perform the acts are "employed in any kind of amusement".

Further, I am not satisfied that the employees are not employed in an aspect of Motion Picture Film Production. The producer of a motion picture film produces it for one purpose only, so that it may be exhibited - to someone somewhere. I do not think that it can be said that employees of a film producer are only employed in motion film production up to the stage when the film is physically produced. The distribution of the film by a producer for purposes of its exhibition must surely be the last stage in the whole complex activity of production and employees of a film producer employed not only up to the stage of packing the film and despatching the film but also those employed in arranging to whom and on what terms the films should be despatched are employed in motion film production. If this be so, it is of no consequence that the acts of ultimate packing and despatch are not done by the producer but by a marketing company. The test is not the business of the employer as a whole but the nature of the acts done by the employee, and if those acts fall within the class of acts done by a motion film producer as an aspect of the motion film production it does not matter that in these particular instances the preliminary acts relating to the making of the film are performed by another person or company.

This is an application for a writ of prohibition in the original jurisdiction of this Court conferred by s. 75(v.) of the Constitution.

The question to be decided is whether the first respondent, Harold Gibson Neil, a member of the Australian Conciliation and Arbitration Commission, was engaged in the settlement of an industrial dispute between the second respondent, The Australian Theatrical and Amusement Employees Association, and the prosecutors concerning the rates to be paid to, and conditions of work to be provided for employees of the prosecutors in the "film distribution area" (set out in Schedule 1 to the log of demands served on the prosecutors by the Association). Essentially, the prosecutors claimed that the Commissioner was going beyond the widest arbitral jurisdiction which could be conferred upon him by the legislative power of the Commonwealth. The relevant power is that contained in s. 51 of the Constitution "to make laws with respect to (xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State".

The prosecutors and the Association agreed that there was a dispute extending beyond the limits of any one State between the Association and the prosecutors in regard to employees in the areas of film production and exhibition. The claim for prohibition was that the dispute did not extend to the film distribution area. The application to make the order nisi absolute sought prohibition only in respect of the film distribution area.

A preliminary question arose concerning the right of the Association's solicitor to represent it in this Court. Some months before the hearing, the solicitor had written to the Principal Registrar of this Court explaining that the Association was unable to afford counsel to represent it at the hearing and informing the Court of his intention to appear for it. The question was not resolved, however, as he was given leave to appear. In my opinion, leave is not necessary. Any person entitled to practice as a solicitor in the Supreme Court of New South Wales and whose name is entered in the Register of Practitioners (kept in accordance with s. 55C of the Judiciary Act 1903-1973) is entitled to appear for, represent, and act as advocate for his client in this Court.

The grounds relied upon for the order nisi were expressed as follows:

1. The dispute arising from the demand made by the Association was not one within the meaning of the Constitution or within the meaning of s. 4 of the Conciliation and Arbitration Act 1904-1974.

2. The dispute was not an industrial dispute in that no employee of the prosecutors was eligible to join the Association.

3. The Association was unable to create an industrial dispute with the prosecutors or any one of them in respect of the film distribution industry.

The establishment of any of the grounds depended upon showing that no employee of the prosecutors was eligible to join the Association according to its rules regarding conditions of eligibility. The Court was invited to assume that if this were shown, all the grounds would be established and the prosecutors would be entitled to have the order nisi made absolute.

The prosecutors filed affidavits which dealt with the film distribution area from their point of view and which exhibited the transcript of the hearing before the Commissioner, his decision and his reasons. This material was supplemented by statements by the representatives of the prosecutors and the respondent Association. A copy of the rules of the Association was not in evidence, although the Court was asked to issue the constitutional writ of prohibition on an interpretation of the rules.

However, a certified copy of the certificate of registration of the Association was annexed to one of the affidavits. This included the registered description of the industry in connexion with which the Association was registered and the registered conditions of eligibility for membership and the changes in both since registration. (See Conciliation and Arbitration Act 1904-1973, s. 132(2), s. 139 and reg. 115(1) (d) and (2)).

The Association has been registered since 10th February 1910 as an organization of employees. The registered conditions of eligibility (which were last altered on 12th September 1955) refer to "an unlimited number of employees employed in any kind of amusement whether outdoor or indoor, or in or about the theatres, halls, racecourses, sports, exhibition and agricultural shows, or in all aspects of Motion Picture Film Production including producers film splicers film checkers film despatchers film packers; and film examiners". The numerous other categories specified are set out in full in the reasons for judgment of Gibbs J.

The industry in connexion with which the Association was originally registered was "Theatrical and Amusement, Sports and Agricultural Shows and Exhibitions industry". This was changed on 17th December 1915 to "Theatrical and Amusement industries" and on 11th September 1923 to "Theatrical and Amusement, Sports and Agricultural Shows and Exhibitions industry".

The Commissioner took the view that employees of the distribution companies in the occupations in question were "employees in any kind of amusement" within the conditions of eligibility. He also took the view, based on his acquaintance with the industry, that "it was impossible to separate "production" distribution and exhibition of films into isolated compartments". He considered distribution and exhibition were each "an aspect of "Motion Picture Film Production" within the conditions of eligibility". His statements were part of the evidentiary material before this Court and I would attach great weight to them, especially as he has a duty under s. 19 of the Conciliation and Arbitration Act to keep himself acquainted with industrial affairs and conditions.

Originally, and in some cases still, the registered conditions of eligibility and description of the industry of such organizations were spelled out of the same "Constitution" rule of the organization (see Re Printing Industry Employees' Union of Australia [10] ). The changes on the certificate of registration indicate that this was probably true of this Association, and may still be. Whether this is so or not, when one reads the registered conditions of eligibility in the context of the description of the industry and the name of the organization, it is clear that no narrow meaning should be given to the word "amusement".

Provisions in union rules, especially long-standing ones should not be read as "strictly prepared and technically framed stipulations inserted in some legal instrument of lawyers" (Amalgamated Society of Engineers v. Smith, per Isaacs J. [11] ). (See also the observations of Dixon J. in R. v. Hickman; Ex parte Fox and Clinton [12] .)

1. (1913) 16 C.L.R. 537, at p. 559. 2. (1945) 70 C.L.R. 598, at pp. 613-614.

The word "amusement" in the expression "employed in any kind of amusement" in the Association's registered conditions of eligibility is used in the sense of the industry of amusement, as in the registered description of an industry, and does not embrace merely an item of amusement, such as a particular presentation of a play, a film or a spectacle. It is sufficiently wide to embrace the whole motion picture industry (which is part of the amusement industry) in all its aspects.

On the evidence (including the opinion of the Commissioner), the employees in question are also employed in aspects of Motion Picture Film Production within the meaning of these rules. Distribution from the employees' point of view is to be regarded as an aspect of Motion Picture Film Production. The definition of industry in s. 4 of the Conciliation and Arbitration Act includes: "(b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; and (c) a branch of an industry and a group of industries".

Many of the classifications of employees of the prosecutors in the film distribution areas were identical with those specifically referred to in the conditions of eligibility, for example film splicers, film checkers, film packers, film examiners.

In my opinion, it has not been proved that employees of the prosecutors are not eligible to join the Association and for that reason the order nisi should be discharged. Even if it were proved, the grounds would not automatically be established. The view that they would be established is based on the assumption that the membership of an organization (and therefore its capacity to represent in an industrial dispute) is restricted to those eligible to join the organization now.

The Association is registered as an organization under s. 132(1) of the Conciliation and Arbitration Act which provides for registration of:

(b) Any association the members of which include not less than one hundred employees in or in connexion with any industry and the other members, if any, of which are -

(ii) persons who follow an occupation in or in connexion with that industry; or

(iii) persons who are employees who are qualified to be employed in or in connexion with that industry,

but does not include an association that has members referred to in sub-paragraph (ii) or (iii) unless the association is effectively representative of the members who are employees in or in connexion with that industry;

Section 132(1) (c) is a similar provision for registration of an organization of members engaged in an industrial pursuit or pursuits.

Section 143 gives a ground for cancellation of registration: an organization which includes persons described by s. 132(b), (c) (ii) or (c) (iii) has ceased to be effectively respresentative of the members who are employees in or in connexion with the industry concerned, or of employees engaged in the industrial pursuit or pursuits concerned.

Section 144 deals with entitlement to membership of an organization, and its sub-ss. (1) and (2) make it clear that a person is entitled to remain a member, even if he is not included in a category of persons eligible for membership under the rules "unless the rules do not permit him to remain a member". Section 145, which provides for statutory entitlement to resign, applies only where a member ceases to be employed in or in connexion with the industry of the organization or engaged in its industrial pursuit or pursuits.

These sections show that the scheme of the Act permits the organization to include persons who are in the industry in or in connexion with which the organization is registered even if they are no longer eligible for membership (see Consolidated Press Ltd. v. Australian Journalists' Association, per Rich and Williams JJ. [13] ).

Unless the rules provide that a person ceases to be a member when he ceases to be within the category of those eligible to join, the organization may include such persons employed within the industry in or in connexion with which it is registered. Section 132 and 144(3) of the Act of course extend the membership categories beyond employees. In this case, there is no evidence that the rules provide that persons who are not now eligible to join the Association cease to be members.

This is no mere theoretical consideration. The Commissioner found there was an overlap of functions of those who might be called film producers, distributors, and exhibitors and that some classifications of employees in film distribution were the same as those in other areas. There is nothing to prevent members of the Association from being employed by the prosecutors in the film distribution area, and the Court was informed that some two hundred members of the Association are employed in the film distribution area, but not by the prosecutors.

It was decided in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [14] that if the conditions of eligibility were wider than the description of the industry, then the capacity of the organization to initiate a dispute would not be limited to the industry in respect of which it is registered under the Act. Some cautionary words were expressed in that case on the application to other cases of the considerations applied there.

The scheme of the Act does not require the conclusion that the capacity of an organization does not extend to represent those who, being members, are entitled to remain so while employed in an industry in or in connexion with which that organization is registered even if they are not now eligible to join. This is consistent with s. 61 of the Act which provides that an award determining an industrial dispute is binding on "(f) all members of organisations bound by the award".

Therefore, even if none of the employees of the prosecutors in the occupations in question were eligible to join the Association, the members of the Association (if and when they were employed by the prosecutors in those occupations) were still entitled to be, and remain, members of the Association.

A demand made by an organization upon employers who at the time do not employ any of the organization's members may still bring those employers into dispute with the organization about the wages and conditions of its members, if and when they are employed (Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees Association [15] ; Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [16] ).

1. (1925) 35 C.L.R. 528. 2. (1957) 97 C.L.R. 71.

For these reasons also, the prosecutors have failed to show that the Commissioner was not engaged in settling an industrial dispute in the area in question.

It has not been necessary to consider the possible effect of s. 51(xxxix.) of the Constitution in this case.

The order nisi should be discharged without costs (see s. 196A of the Conciliation and Arbitration Act).