Re Turbet; Ex p Australian Building Construction Employees' & Builders' Labourers' Federation [1980] HCA 47

In his finding the Commissioner described the dispute as relating to "the allocation of labour to effect transportation and unloading of steel from Electric Power Transmission Pty. Ltd., Sydney plant and the Loy Yang power station construction site in the Latrobe Valley of Victoria".

The employer was engaged in the construction of an electric power generating station at Loy Yang. For that purpose structural steel fabricated in its Sydney plant was to be transported by rail from Sydney to Morwell in Victoria, from where it was to be carried by road to the nearby Loy Yang site. However, despite the terms of the finding, there was no evidence before the Commissioner of any dispute relating to any part of the inter-State transportation of steel to Loy Yang. The evidence of disputation was confined to a dispute about which group of employees should have allocated to them the work of unloading the steel on its arrival at Loy Yang and of subsequently handling that steel on the site. The dispute of course affected the employer, since each union made a claim on it inconsistent with the other union's claim; but essentially the dispute lay between the two unions, as to whose members should have the work allocated to them.

The dispute in evidence before the Commissioner involved no interstate elements. The interstate carriage of the steel was not in question and neither the fact that each of the two unions had members Australia-wide nor the fact that the employer was engaged in activities in at least two States and was supplying the Victorian site with steel from interstate, sufficed to make the dispute an interstate dispute. Hence the contention of the prosecutor, the B.L.F., that, for want of any interstate element in the dispute which was before Commissioner Turbet, prohibition should go.

Had matters remained in this position on the return of the order nisi for prohibition there would have been a clear case for the order nisi to have been made absolute: the Commission would have lacked jurisdiction in what the evidence showed to be a purely intrastate dispute. However, in opposing the grant of prohibition, counsel for the F.I.A. submitted that there indeed existed an interstate dispute, of which the rival claims by the two unions to allocation of work on steel at Loy Yang was but evidence. The Loy Yang situation was one manifestation of this wider dispute. The dispute had admittedly been misdescribed both in the notification by the Metal Trades Industry Association and in the finding by Commissioner Turbet but this was said to be irrelevant to jurisdiction. Misdescription in fact persisted: the F.I.A. itself notified the Commissioner of the dispute in August 1979, describing it in terms confined to Loy Yang and had on the same day made written application under s. 142A of the Act for an order that at the Loy Yang site it have the right to represent, to the exclusion of the B.L.F., the employer's workers falling within an award classification applicable to those handling structural steel. Then in October 1979 the B.L.F. also made an application, in similar terms, under s. 142A of the Act, claiming for itself the right of representation. Again the matter was expressed to be restricted to Loy Yang.

The wider interstate dispute which is now said to have existed in fact and to still persist, although not expressly acknowledged either by the parties when before the Commissioner or by the Commissioner himself, is described as relating to the very issue already referred to, the allocation of the work of handling structural steel. It is said to have been a long standing dispute between these two unions extending throughout eastern Australia. Its existence was not only well known to the two unions but also to the Commissioner, whose responsibilities extended to the construction industry. The parties' exclusive concentration upon the situation at Loy Yang in their notices to and appearances before the Commission is said to have been due to the fact that it was there that, at the time, the dispute had manifested itself in tangible form. Loy Yang was seen as an opportunity of bringing the dispute to a head and securing its resolution.

The evidence now before the Court establishes that there had indeed been a previous history of disputes between the two unions throughout the eastern States, about whose members should handle structural steel. It had from time to time in the past led to industrial action at various construction sites where members of the unions were employed. It was its recurrence at Loy Yang that led to the events the subject of this application.

In the light of this evidence I conclude that there did exist between the parties an interstate industrial dispute concerned with the demarcation of functions as between members of the two unions. The essence of an industrial dispute is "disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship": Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1] [1] . There had here been long-standing disagreements between two "industrial unions and in relation to industrial matters such as demarcation" which answer "the general description of industrial disputes" and may readily, as in this case, be "fastened upon employers as industrial disputes": R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Australian Paper Mills Employees' Union [2] , per Starke J. [3] ; and see per Rich and Williams JJ. [4] : see generally the recent case of Reg. v. Portus; Ex parte Transport Workers' Union of Australia [5] (the Peko Case) in which the earlier authorities are reviewed.

1. (1930) 42 C.L.R. 527, at p. 552. 2. (1943) 67 C.L.R. 619. 3. (1943) 67 C.L.R., at p. 637. 4. (1943) 67 C.L.R., at pp. 631-632. 5. (1977) 141 C.L.R. 1.

This is not the case of a local dispute in one State whose only interstate aspect consists of industrial action taken in other States so as to show sympathy with and support for one party to the intrastate dispute. Nor is it, I think, a case of a series of such local disputes. It does not consist of a series of "separate and unconnected industrial questions", as did the situation which arose in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union [6] (the Pinkenba Case). On the contrary, the one subject matter, this very question of the allocation of work at construction sites had for some time past been in dispute between the unions throughout the eastern States. Because the dispute occurred in the context of the building and construction industry it displayed distinctive features associated with the characteristics of that industry: its focus moved from site to site, happening to fix on Loy Yang at the time relevant to these proceedings. But there was nothing distinctive about the disputation as it affected Loy Yang; that site merely happened to be the occasion for a further manifestation, by means of industrial action, of the existence of this basic disagreement between the two unions concerning the same industrial matter, demarcation of functions.

It is upon this basis that I conclude that at all relevant times there did exist an industrial dispute in respect of which the Commissioner could exercise jurisdiction. In resisting prohibition reliance has also been placed upon the existence of a threatened or impending interstate dispute, again concerning demarcation between the two unions and concerned, as before, with allocation of work in the handling of steel. This submission relies upon the same material as that used to support the existence of an actual present interstate dispute. Since I have concluded that there exists such a present interstate industrial dispute it becomes unnecessary to deal with this latter submission. I should add that it also emerged in the additional evidence submitted on this application that from April to July 1979 members of the F.I.A. at the employer's Sydney plant imposed work bans and limitations which prevented fabricated steel being moved from that plant to Victoria. The prosecutor did not, however, seek to rely upon this fact as lending to the dispute, as found by the Commissioner, the necessary interstate element. Accordingly this aspect calls for no further consideration.

One question remains: should prohibition go, having regard to the erroneous description given by the Commissioner to the dispute which was before him? From the material now before the Court I think it is clear that both the Commissioner and the parties, although concentrating upon the particular manifestation of the dispute which involved the Loy Yang site, were intimately aware of the long-standing dispute of which Loy Yang marked the most recent eruption. Had the question of an accurate description of the dispute received full consideration the dispute could very readily have been so defined as never to have given rise to the present proceedings.

In these circumstances I do not think it appropriate that prohibition should go to the Commission. It is open to the Commissioner to vary his findings so as accurately to describe the dispute. When so described it will be a dispute over which the Commission has jurisdiction. In the unlikely circumstance that the Commissioner were to persist in treating the dispute as confined to Loy Yang it would be open to the prosecutor to renew its application.

This is an application to make absolute an order nisi made by Stephen J. directed to Commissioner Turbet, the Metal Trades Industry Association ("the M.T.I.A."), a registered organization of employers in the metal trades, and the Federated Ironworkers' Association ("the F.I.A."), a registered organization of employees. The prosecutor is The Australian Building Construction Employees and Builders Labourers' Federation ("the B.L.F."), another registered organization of employees.

Since 1976 demarcation disputes have arisen between the F.I.A. and the B.L.F. as to the employment of workers in the unloading and the erection of structural steel at major construction sites, including power stations, a hospital, an aluminium smelter and other buildings, chiefly in Victoria and New South Wales. The eligibility clauses in the constitutions of both unions give coverage to workers employed in the unloading and erection of structural steel. Each union claims that work of this kind should be undertaken by its members to the exclusion of members of other unions. The disputes have led to industrial action in the form of strikes, bans and limitations on work. Inevitably employers have been drawn into the disputes and have become parties to them. This development has led to the involvement of the M.T.I.A. which represents its employer members.

There is evidence that in 1976 the B.L.F. adopted the policy that it should be the only union to cover and represent labourers employed in the building industry throughout Australia and that only members of the B.L.F. should be permitted to perform such work. The F.I.A. did not acquiesce in this policy. On 24th October 1978 the National Council of the F.I.A. passed a resolution in these terms:

National Council notes the attack on this Union by the Builders Labourers' and resolves to fight attacks by the Builders Labourers' upon our traditional work areas by conventional means as well as by appropriate Constitutional changes.

The new construction site of the Loy Yang power station in the Latrobe Valley has become the latest battleground between the two unions. There, Electric Power Transmission Pty. Ltd. ("E.P.T.") has a contract to supply and erect four boiler supporting structures comprising 33,000 tonnes of structural steel. It fabricates the steel in Sydney and transports it by rail to Morwell in Victoria. It intends to load the steel on to semi-trailers and carry it to Loy Yang where it is to be unloaded, sorted, if necessary stored, and subsequently erected. According to the evidence, E.P.T. proposes to employ four labourers in unloading the steel from the semi-trailers, sorting, storing and erecting it at the site. Each union has claimed that its members should have the right to perform the labouring work involved in the unloading, sorting, storage and erection of the steel, to the exclusion of members of the other union. And each union has threatened industrial action in support of its claim. Due to the conflicting union claims E.P.T. has not yet engaged four labourers to do the work.

In support of the F.I.A. claim the F.I.A. and its members employed at E.P.T.'s Sydney plant refused to perform work necessary for the transportation of the steel to Loy Yang. This ban was lifted in July or August 1979 and the steel began to arrive at Loy Yang by October 1979 where it was unloaded by members of the B.L.F. employed by a sub-contractor of E.P.T. Some 2,000 tonnes of steel had then arrived at Loy Yang but no work had begun on the erection of the steel.

On 4th April 1979 the M.T.I.A. notified the Australian Conciliation and Arbitration Commission ("the Commission") "of a situation likely to lead to an industrial dispute in respect of the allocation of work by Electric Power Transmission Pty. Ltd. to employees to be engaged in the various duties associated with the erection of the power station structure at Loy Yang in Victoria". The notice stated that discussions had taken place between the representatives of E.P.T. and organizers of both unions "over the allocation of certain work at the Loy Yang site" because "arrangements for the allocation of similar work at the Yallourn W power station have been the subject of dispute and threatened bans and it was desired to resolve this issue prior to the commencement of work at Loy Yang". A "without prejudice" agreement had been reached between the two unions and E.P.T., the employer, at the Yallourn W construction site in 1976, regarding the demarcation of work.

The proceedings consequent upon the giving of this notice under s. 25 of the Conciliation and Arbitration Act 1904, as amended ("the Act") came before Commissioner Turbet (Matter C No. 450 of 1979). A hearing took place on 4th May 1979 at which the M.T.I.A. and the two unions were represented. The hearing was followed by a conference. On the same day the Commissioner announced his finding that an industrial dispute existed "in the Metal and Construction industries" between the M.T.I.A. and E.P.T. and the F.I.A. and the B.L.F. The Commissioner described the dispute in this way:

That the matter which forms the subject of the dispute is in relation to the allocation of labour to effect transportation and unloading of steel from Electric Power Transmission Pty. Ltd., Sydney plant and the Loy Yang power station construction site in the Latrobe Valley of Victoria.

The order nisi relates to these proceedings. The ground on which the B.L.F. seeks to make the order nisi absolute is that on the evidence the alleged industrial dispute, whether actual or threatened, was not one which extended beyond the limits of one State.

In the proceedings before the Commissioner the M.T.I.A. representative alleged that, as both unions had taken policy decisions claiming the work in question for their members, they were unwilling to enter into joint discussions. He concluded by saying:

The situation we are confronted with today is that approximately 600 tonnes of steel is fabricated and ready for shipment by rail from the company's New South Wales workshops to the Loy Yang site. It is obvious that to allow further production of steel fabrication, this steel work must be moved from the workshop.

Both unions have indicated that they should be the union to unload the steel and indications have been given that unless their particular union is allocated the work the company could be faced with industrial action.

We are here today to seek the assistance of the Commission to, firstly, get some agreement on the unloading of the steel at the site; and secondly, to achieve the basis for resolving any longer term demarcation problems on the erection of the boiler structure.

The last reference was to the erection of the boiler structure at Loy Yang.

It is evident that there was no dispute between the parties as to who should be employed in the transportation of the steel from Sydney to the construction site at Loy Yang. What was, and still remains, in contention is, "To whom should be allocated the work of unloading, sorting, storing and erection of steel at Loy Yang?" It may be that the Commissioner thought that by describing the dispute as he did, he was describing a dispute which was in essence an interstate industrial dispute, one over which the Commissioner had jurisdiction. Be this as it may, there was no dispute as to the allocation of work in the interstate transportation of the steel from Sydney to Loy Yang.

But the case does not end at this point. It is submitted by the respondents that prohibition should not be granted because on the evidence there is an actual dispute as to an industrial matter between the two unions, different from that found by the Commission, extending beyond the limits of one State, over which the Commission has jurisdiction and that, by amending his finding, the Commissioner can proceed to deal with this dispute. Further, it is suggested that there is a threatened impending or probable dispute as to an industrial matter extending beyond the limits of one State. It is also said that the Commissioner himself has, as a result of these and other proceedings, knowledge of the elements which establish the existence of the relevant interstate dispute.

In addition to the evidence already mentioned, Mr. Handley for the F.I.A. relies on other steps which the two unions have taken under the Act. First, on 13th August 1979 the F.I.A. gave notification under s. 25 of a dispute or of a situation likely to lead to a dispute. The dispute was identified as one between the F.I.A., the B.L.F. and E.P.T. with respect to the performance of work on the Loy Yang power station by members, or persons eligible to be members, of the F.I.A. and/or the B.L.F. and of the demarcation of such work.

This notification was accompanied by the making of an application by the F.I.A. under s. 142A of the Act for an order that it should have the right to represent, in respect of all industrial interests under the Act, to the exclusion of the B.L.F., all persons covered by cl. 8, Div. U of the Metal Industry Award, 1971 who are employed by E.P.T. or contractors or sub-contractors bound by the award at the Loy Yang construction site. The grounds stated in the application refer to "frequent and extensive industrial disputation in recent times" between the F.I.A. and the B.L.F. "as to industrial coverage and demarcation". The grounds assert that "Such disputation is likely to continue in the future unless prevented and/or minimised by an Order". However, the order sought is confined to employees at the Loy Yang site.

On 24th September 1979 the Commissioner listed for hearing Matters C No. 450 of 1979 and C No. 3630 of 1979, the latter proceeding being the F.I.A. application under s. 142A. At this hearing the B.L.F. representative submitted that both matters related to intrastate disputes, relating as they did to the allocation of work at Loy Yang. Counsel for the F.I.A. indicated that the F.I.A. wished to proceed in the first instance with its application under s. 142A. After some debate and after a further conference which failed to yield an agreement, the proceedings were adjourned on the footing that the F.I.A. application under s. 142A would come before a deputy president.

The latest development is that on 11th October 1979 the B.L.F. made an application under s. 142A, seeking an order that it should have the right to represent, for all industrial interests under the Act, to the exclusion of the F.I.A., employees, being its members, whose functions fall within the industrial and eligibility rules of the B.L.F. The grounds stated in the application confine it to employees at the Loy Yang construction site.

There is evidence that since 17th October 1979 the B.L.F. had imposed bans on work at various construction sites in New South Wales and in the A.C.T. where members of the F.I.A. were performing work in relation to the erection of structural steel and that those bans were still in operation at the end of October.

The conclusions which I draw from all the material are: (1) that the two notifications under s. 25 and the two applications under s. 142A were expressly confined to the problem at Loy Yang; (2) that there was a dispute as to the allocation of work at Loy Yang in work of the kind in question, to which E.P.T., the M.T.I.A. and the two unions were parties; (3) that in this dispute E.P.T. was in disagreement with its employees, being F.I.A. members in New South Wales, but there is nothing to show that it was in disagreement with any employees who were F.I.A. members in Victoria; (4) that the dispute between the B.L.F. and the F.I.A. as to the allocation of labour at Loy Yang is a consequence of the conflicting general policies pursued by the two unions in relation to the allocation of work at major construction sites; (5) that it is likely that these conflicting policies will result in the future in disputes between the two unions affecting construction sites in various States; (6) that none of the parties in the proceedings before the Commissioner requested him to find that there was a dispute which extended beyond Loy Yang.

These conclusions give rise to two broad questions: (a) Is there an industrial dispute having the requisite interstate character over which the Commission has jurisdiction? (b) If so, does it constitute a reason for denying the remedy of prohibition in relation to proceedings on a dispute which the Commission has erroneously found to exist?

It is well settled that demarcation disputes between unions, provided that they relate to employment, may constitute "industrial matters" within the meaning of that expression as defined by s. 4 of the Act, falling within par. (p), if not par. (n), of that definition. It is equally well settled that demarcation disputes between unions may be "industrial disputes" within the meaning of s. 51 (xxxv.) of the Constitution: see generallyR. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Australian Paper Mills Employees' Union [7] ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [8] ; and Reg. v. Australian Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [9] . There is here no suggestion that the claims made by the unions relate to employment in the sense of initial engagement or to preference in employment which is dealt with in s. 47 of the Act.

1. (1943) 67 C.L.R. 619, at pp. 631-632, 636-637. 2. (1969) 119 C.L.R. 529, at pp. 542, 552-554, 556. 3. (1977) 52 A.L.J.R. 223, at pp. 228-229; 17 A.L.R. 367, esp. at pp. 376-378.

Central to the traditional conception of an industrial dispute extending beyond the limits of one State is a "disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship. Such a disagreement may cause a strike, a lock-out, and disturbance and dislocation of industry; but these are the consequences of the industrial dispute, and not the industrial dispute itself, which lies in the disagreement." (Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1] [10] , per Gavan Duffy, Rich, Starke and Dixon JJ.: see also Metal Trades Employers' Association v. Amalgamated Engineering Union [11] . In Caledonian Collieries [12] the effect of a dispute on the northern coalfields of New South Wales extended to mines in Victoria and Queensland, but because the miners in the latter States were not in disagreement with their employers the dispute between employers and the unions in New South Wales lacked the requisite interstate character. The "case did not decide that a local dispute could not be made the occasion for a dispute extending beyond one State" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [13] , per Menzies J.).

1. (1930) 42 C.L.R. 527, at p. 552. 2. (1935) 54 C.L.R. 387, at p. 429. 3. (1930) 42 C.L.R. 527. 4. (1965) 113 C.L.R. 228, at p. 252.

It is of course essential to distinguish between a single dispute extending beyond the limits of a single State and a series of local disputes each confined to a single State. Reg v. Gough; Ex parte B.P. Refinery (Westernport) Pty. Ltd. [14] and Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union (the Pinkenba Case) [15] are illustrations of separate local disputes in different States not amounting to a single dispute having the necessary interstate quality. The Pinkenba Case, which was in essence a demarcation dispute between unions, demonstrates that, in deciding whether individual disputes are to be classified as a single dispute, the court ascertains whether the subject matter of the disputes turns on considerations which are peculiar to the locality [16] .

1. (1966) 114 C.L.R. 384. 2. (1957) 99 C.L.R. 505. 3. (1957) 99 C.L.R., at p. 511.

An industrial dispute extends beyond the limits of a single State if the disputants exist in fact in two or more States, notwithstanding that (a) the dispute when it initially came into existence was confined to a single State; and (b) few of the disputants are to be found outside that State (Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [17] : see also R. v. Portus; Ex parte Federated Clerks Union of Australia [18] ). In these cases the disputes have been "paper" disputes arising from the rejection or non-acceptance of a log of claims seeking improved terms and conditions of employment affecting employers and employees in two or more States. They were cases in which the subject matter of the disputes was not confined to one State.

1. (1938) 58 C.L.R. 436. 2. (1949) 79 C.L.R. 428, at pp. 432, 439, 441.

Here, there was a local demarcation dispute at Loy Yang involving E.P.T. and the two unions. It was not argued by Mr. Handley for the F.I.A. that this dispute extended to New South Wales merely because F.I.A. members who were employed by E.P.T. in that State supported the F.I.A. claim made at Loy Yang and because they took industrial action in New South Wales in support of that claim. Perhaps the view was taken that it is essential to the conception of an industrial dispute extending beyond the limits of one State that it requires for its creation not only the existence of disputants in more than one State, but also the existence of a dispute the subject matter of which extends beyond a single State. Generally it has been thought that an interstate industrial dispute is not constituted by a disagreement between an employer in one State and a national union whose members are to be found in every State.

The situation would be different if, on both sides, the parties to the disagreement are to be found in more than one State, more particularly when there is a single employer carrying on business in two States who is able to concede what is claimed from him by the union which represents his employees in both States. If we were to hold that a disagreement between an employer and his employees in two States on an industrial matter, especially one which has given rise to industrial action in two States, is not within the constitutional or the statutory conception of an industrial dispute extending beyond the limits of one State, we would be deserting the language of the Constitution and the statute and disregarding the very object for which the power conferred by s. 51 (xxxv.) was granted. The dispute would then be left to the jurisdiction of the domestic tribunals of the States, notwithstanding the incapacity of such a tribunal to bring before it all the parties to the dispute. However, in this case as it is not established that E.P.T. has employees in Victoria or that it is in dispute with its employees in Victoria, it is not possible to conclude that there is an interstate dispute on this account.

Although the respondents did not submit that the coexistence of conflicting policies adopted by the two unions itself constitutes an industrial dispute or, to use the statutory formula, a dispute as to an "industrial matter", they did argue that there is a threatened, impending or probable interstate dispute as to such a matter. The mere coexistence of conflicting policies cannot of itself constitute a dispute, unless it gives rise to a disagreement of such a kind as answers the requisite description. When we look beyond the policies adopted by the two unions, we find one existing disagreement which relates to the allocation of work at a particular site in Victoria and we find a pattern of similar disagreements which have related to other sites in various States. Moreover, though the evidence does not identify any particular situation outside Victoria as the likely focal point of disagreement between the two unions, I infer from the prior history of the disputes and from the conflicting policies of the two unions that disputes, in all respects similar to that at Loy Yang, will occur at other sites outside Victoria. What is more, these disputes, like those which have previously occurred, are unlikely to turn upon local considerations.

The similarity in the subject matter of these disputes, the absence of distinctive local considerations, their reflection of the conflicting policies of the two unions and their likely continuation even on a site by site basis persuade me that we have here, not a series of isolated and disconnected intrastate disputes, but a continuing dispute between two nation-wide unions which extends to major construction sites throughout Australia and, as it unfolds, catches up employers in various States and Territories. I acknowledge that at any one time, due to inaction on the part of one or both unions or to compromise, the dispute may affect construction sites in one State only, but this is only to say that at the relevant time there is an immediate manifestation in one State only of a continuing underlying industrial dispute which is nation-wide in extent.

On this basis I find that there has come into existence a dispute as to an industrial matter extending beyond the limits of a single State. It does not involve a finding that there is "a threatened, impending or probable dispute" as to an industrial matter so extending, within the meaning of the definition of industrial matter contained in s. 4. Consequently, I have no need to discuss this definition or its relationship to the "prevention" of industrial disputes in s. 51 (xxxv.) of the Constitution.

My finding that there is an industrial dispute which answers the constitutional and the statutory descriptions leaves for decision the question whether prohibition should go in relation to the proceedings before the respondent Commissioner. Section 24 requires the Commission to "determine whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute, and record its findings", but it goes on to provide that "the Commission may vary or revoke any of those findings". And as Jacobs J. observed in Reg. v. Australian Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [19] :

The notification of the dispute to the Commission under s. 25 was not the basis of the jurisdiction of the Commission. It could exercise the power and function of determining whether or not there was an industrial dispute of its own motion if it so desired pursuant to s. 21 (1). 1. (1977) 52 A.L.J.R., at p. 231; 17 A.L.R., at p. 382.

It is open to the respondent Commissioner, at the instance of one of the parties or, in my opinion, of his own motion after hearing argument and, if need be, additional evidence, to vary his finding of the dispute so as to base it on either or both of the grounds which I have expressed. In this situation, prohibition should not be granted at this stage of the proceedings. It is true that an order for prohibition could be made in such a form as would not prevent the Commissioner from varying his finding of the dispute in the manner suggested and from arbitrating the dispute so found. However, I think that the preferable course is to refrain from making an order at this stage, in the expectation that the Commissioner will vary his finding. In the event that this expectation is disappointed and the Commissioner proceeds to determine the dispute which is the subject of his present finding, prohibition should then issue.

In the result I would discharge the order nisi for prohibition without prejudice to the prosecutor's right to renew his application should the circumstances warrant such a course.

The prosecutor claims that the Commission has no authority to deal with a demarcation dispute, because the industrial dispute is confined to one State and does not extend beyond the limits of one State within s. 51 (xxxv.) of the Constitution.

The constitutional power with respect to settlement of disputes. Section 51 (xxxv.) was intended to empower the Parliament to provide for conciliation and arbitration to prevent and settle industrial disputes which were not completely within the authority of any one State. Unless an industrial dispute is completely confined to one State, it extends beyond the limits of one State. The somewhat narrow view of industrial disputes, that strikes, lock-outs, and disturbance or dislocation of industry do not constitute a dispute but are only symptoms or consequences of one, has gained acceptance (see Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1] [20] ; Metal Trades Employers' Association v. Amalgamated Engineering Union [21] ). But, even on this narrow view, a dispute consists of disputants and the subject matter of the dispute. If all of these are not confined within the limits of any one State, then the dispute is one "extending beyond the limits" within the constitutional description. In this case, the subject matter (demarcation of work or of industrial interests) was on a narrow assessment confined to one State, although looked at more broadly it was part of a general demarcation dispute over allocation of work between members of the Federated Ironworkers' Association ("F.I.A.") and the Australian Building Construction Employees and Builders Labourers' Federation ("B.L.F.") around Australia, inside and outside Victoria. I accept Mason J.'s analysis, and upon that the prosecutor must fail.

1. (1930) 42 C.L.R. 527, at p. 552. 2. (1935) 54 C.L.R. 387, at p. 429.

The prosecutor should fail for other reasons. Even if the subject matter were confined to Victoria, the disputants were not. The two unions were federal organizations, corporations with registered offices outside Victoria, and management committees, officers and (it may be inferred) present and future members in the industry outside as well as inside Victoria. The employer operated and had employees in the industry outside as well as in Victoria. To satisfy the constitutional description of "industrial dispute", the relationship between the disputants need not be contractual, nor be one of employment; it is enough that it is industrial. Usually, industrial disputes arise out of the industrial relationship of employers and employees, and the disputants are their organizations. However, a person may participate in an industrial dispute although he is not engaging nor intending to engage in the work subject of the dispute. An organization may participate although it has no members engaged in the work or intending to engage in the work (see Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [22] ; Metal Trades Employers' Association v. Amalgamated Engineering Union [23] ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [24] . The system of registration seems to limit participation by an organization (at least ordinarily) to circumstances where it is registered in connexion with the industry (or its conditions of eligibility extend to cover persons engaged in the work) to which the dispute relates (see Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [25] ).

1. (1925) 35 C.L.R. 528. 2. (1935) 54 C.L.R. 387. 3. (1938) 60 C.L.R. 507. 4. (1952) 85 C.L.R. 138.

If an industrial demand on the respondent employer in relation to the work at Loy Yang were made by all the members of the prosecutor (many thousands of whom are employed in the same industry outside Victoria) and rejected by the employer, this would constitute an industrial dispute extending beyond Victoria. An organization may be regarded as an agent (see Amalgamated Engineering Union v. Metal Trades Employers' Association [26] where Evatt J. thought that "prima facie, all demands by a registered organization should be regarded as being made on behalf of all those who are or may become members of the organization" [27] ) or as a principal (see Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [28] ). When the organization, whether regarded as an agent of its members and future members or as a principal, makes the industrial demand which is rejected, there is an industrial dispute extending beyond one State. It is immaterial that there is no employer-employee relationship actual or contemplated, between its members (outside or inside the State) and the employer; it is enough that there is an industrial relationship. It is enough to satisfy the constitutional description of an "industrial dispute extending beyond the limits of any one State", that any of the disputants is in another State (even if, in the case of an organization or employer it is also in the State).

1. (1935) 53 C.L.R. 658. 2. (1935) 53 C.L.R., at p. 663. 3. (1956) 96 C.L.R. 317, at p. 323.

Although a dispute may fall within the constitutional description, it does not follow that the Commonwealth Conciliation and Arbitration Commission is authorized under the Conciliation and Arbitration Act 1904 Cth, as amended, ("the Act") to deal with the dispute, although the terms of the Act are wide. The onus is on the prosecutor, to prove clearly its claim that the Commission lacks authority (see Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [29] ). It has not been proved in this case. On the contrary, I am satisfied that there is an industrial matter within the definition of the Act (see s. 4) and an industrial dispute extending beyond the limits of any one State, and that the Commission has the requisite authority.

The constitutional power with respect to prevention of disputes. The constitutional power is to make laws with respect to conciliation and arbitration for the prevention (as well as the settlement) of industrial disputes extending beyond the limits of any one State. The existence of an industrial dispute extending beyond the limits of any one State is sufficient but not necessary to satisfy the Constitution. However, the reports of judgments of this Court abound with statements of the constitutional necessity of the existence of an industrial dispute extending beyond the limits of any one State before the Commission (or its predecessors) can enter on conciliation or arbitration. These statements read "prevention" out of the conciliation and arbitration power, but it stubbornly remains there. Thus laws enabling conciliation and arbitration procedures to be applied to industrial disputes not extending beyond the limits of any one State, and to "situations" in one State or extending beyond one State which are not yet industrial disputes are within the constitutional power, provided the procedures are applied for the prevention of industrial disputes so extending. The Act expresses the will of the Parliament that the Commission exercise its functions of conciliation and arbitration to prevent, as well as settle, industrial disputes extending beyond one State (see ss. 18, 20, 26, 30), and it is no part of the function of this Court to restrain it from doing so. Thus the Commission is empowered to prevent and settle industrial disputes (s. 18) and section 4 of the Act defines "industrial dispute" (except where otherwise clearly intended) means:

(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and

(b) a situation which is likely to give rise to a dispute as to industrial matters which so extends,

and "Industrial matters" means all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

(a) all matters or things affecting or relating to work done or to be done;

(b) the privileges, rights and duties of employers and employees;

(j) the preferential employment or the non-employment of any particular person or class of persons or of persons being or not being members of an organization;

(m) any shop, factory or industry dispute, including any matter which may be a contributory cause of such a dispute;

(n) any question arising between two or more organizations or within an organization as to the rights, status or functions of the members of those organizations or of that organization or otherwise, in relation to the employment of those members;

(p) any question as to the demarcation of functions of employees or classes of employees, whether as between employers and employees or between members of different organizations;

and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole.

The Commission is thus authorized to exercise its functions of conciliation and arbitration in respect of an industrial dispute which does not extend beyond one State, if this is done for the prevention of an industrial dispute extending beyond one State.

The power may be used, not only to prevent the extension of an industrial dispute beyond one State, but to prevent the coming into existence of an industrial dispute so extending. Section 18, read with the definition of industrial dispute in s. 4 of the Act, empowers the Commission to make an award to prevent a situation likely to give rise to "a dispute as to industrial matters which extends" beyond one State. Thus, a demarcation dispute between employees in one State can be dealt with (and an award made) in order to prevent the coming into existence of an industrial dispute between employees, or between employees and employers, or their organizations extending beyond the State. Similarly, the Commission is empowered to deal with the typical local "situation" arising out of an alleged unfair dismissal, provided that this is "likely to give rise to a dispute as to industrial matters which so extends". Likelihood of such a dispute is sufficient, but may not be necessary (in my view, it is not necessary) to satisfy the constitutional requirement "for the prevention " of such disputes. The conciliation and arbitration authorizes laws to settle an intrastate industrial dispute which, if not settled, would or might extend (or give rise to an industrial dispute extending) beyond the one State.

The incidental power. The conciliation and arbitration power (s. 51 (xxxv.)) adequately empowers Parliament to authorize the Commission to prevent and settle demarcation disputes between organizations of employees or employers even in the absence of any actual or potential dispute extending beyond one State. Demarcation between organizations is incidental to the conciliation and arbitration power. As with the registration or deregistration of organizations, the registration or alteration of rules, the conduct of elections of officers, the exercise of legislative power does not depend on an actual or potential industrial dispute extending beyond one State (see Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [30] ).

Parliament has acted on this basis. Section 142A (1) of the Act provides:

The Commission may, on the application of an organization, an employer, 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.

However, subject to the appeal provisions "the power to make an order under s. 142A is exerciseable by a Presidential member and not otherwise." (see s. 142A (6)).

The prosecutor has applied to the Commission under s. 142A for orders granting it the right to represent in respect of all industrial interests under the Act, to the exclusion of the F.I.A., employees whose functions fall within the rules of description of industry and eligibility for membership of the prosecutor. This application of course extends not only to the employees (actual or potential) at Loy Yang Power Station, but many thousands of employees in other parts of Australia. Even if the application were restricted to Loy Yang in Victoria, the Commission (although it seems because of s. 142A (6) not the respondent Commissioner) would be empowered to deal with the application and make a demarcation order. A similar application but seeking an order in its favour was made by the F.I.A.

I do not need to repeat the facts, which are fully set out in the reasons for judgment prepared by my brother Mason.

The finding of the Commissioner was not one which can be sustained on the material before him or on any of the additional material placed before this Court. It was given an apparent interstate "flavour" by the reference to "the allocation of labour to effect transportation and unloading of steel from E.P.T. Limited, Sydney plant, and the Loy Yang Power Station " which might have suggested that there was a dispute as to labour for transportation from Sydney to Loy Yang. It was however clear that it was not intended to bear that meaning and that the "transportation" referred to is only from the railway siding at Morwell in Victoria to the site at Loy Yang also in Victoria. So understood the finding did not refer at all to an interstate dispute and could not have been the basis of any further proceedings before the Commissioner, save for the purpose of amendment if other facts demonstrated the existence of an interstate dispute.

By the time the matter came before this Court for argument the position was that there were cross applications by the Federated Ironworkers Association ("F.I.A.") and the Builders Labourers' Federation ("B.L.F.") under s. 142A of the Conciliation and Arbitration Act 1904, as amended (Cth) for orders under that section. The application by the B.L.F. was expressed in general terms with regard to the exclusive right of the members of the B.L.F. to perform all labouring work on building sites anywhere in Australia but the application by the F.I.A. was confined to the site at Loy Yang, i.e. for the exclusive right of its members to perform the work of the handling and erection of the steel work at that site.

In an affidavit sworn on 17th October 1979 the Director of the Victorian Branch of the Metal Trades Industry Association (M.T.I.A.) said that it did not "at this stage" intend to proceed further with the proceedings before Mr. Commissioner Turbet. The Court was asked to exercise its discretion by standing over the application for a writ of prohibition. Counsel for the B.L.F. however said that that organization did not consent to that course.

Both the Court and the Commission have become accustomed to dealing with "paper disputes", which, although somewhat artificial, are such that their nature and extent are ascertainable from the documents with relative ease. It is sometimes less easy to ascertain the nature and extent of an "actual dispute" which must be deduced from the evidence provided by industrial action or a combination of industrial action and general claims made by unions. At least since the decision in Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1] [31] , it has been clear that the conception of an industrial dispute is a "disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship" and that, although the disagreement may produce industrial action, such action has to be regarded as a consequence of the dispute or evidence of the existence of a dispute. In the present case there were conflicting demands, not formulated in writing, made upon Electric Power Transmission Pty. Ltd. ("E.P.T.") in respect of future work to be performed in Victoria and there was industrial action in New South Wales by members of one union in support of that union's claim that its members should have the exclusive right to perform the work in Victoria.

The position here would have been clear if the case were one dealing with an employer who employed members of a union in more than one State and there were a demand made by or on behalf of employees in more than one State to accede to a claim by a union which represented the employees in each of two or more States. That would properly be regarded as a dispute extending beyond the limits of one State.

We have here however a situation where there is a prospective employer in Victoria seeking, before engaging any employees, to resolve conflicting claims made in Victoria by two unions as to the entitlement of their respective members to perform the work in that State upon which the prospective employer contemplates embarking. That employer is in a position to accede to one or other of those demands if and when he decides to commence the operation and take on employees for the purpose of performing it. However it cannot be said that at the relevant time it was dealing with a union which represents employees in both States. Both parties to the dispute in New South Wales are present both in Victoria and New South Wales. In the case of the B.L.F. the evidence before this Court does not suggest that any of its members were employed by E.P.T. at the relevant time in any State.

The situation does not appear previously to have arisen where a demand is made by a union upon a prospective employer in one State, such employer being an actual employer of members of that union in another State.

I would respectfully agree with my brother Mason that it would be contrary to the established meaning of s. 51 (xxxv.) of the Constitution to deny that a disagreement between an employer and his employees in two different States on an industrial matter was within both the constitutional and the statutory power. That however is not sufficient to dispose of the present case. It has not been held in any case that the same is true where there are no employees in one of the States but merely a demand by a union that its members should be employed if and when employees are employed by that employer for a particular operation.

There was no disagreement between the parties that the proceedings under s. 142A should take priority and Mr. Commissioner Turbet appears also to have taken that view. It was said that it would be open to the Commissioner at any time to amend his finding of an industrial dispute or to make a new finding if the evidence now available were placed before him, but in my opinion that evidence does not disclose an interstate dispute within the accepted meaning of that term.

In those circumstances I do not consider that any useful purpose would be served by merely adjourning the matter to await some application to the Commissioner to vary his finding or some variation by him of his own motion, a possibility which could not arise until the determination of the proceedings under s. 142A. The proper course is to make the order absolute.

I agree that this case is not one for prohibition. Although the terms of Commissioner Turbet's finding of the dispute is open to objection, in my opinion there is evidence of a demarcation dispute with interstate ramifications such as would entitle the Commissioner to make an appropriate finding and proceed to exercise jurisdiction. The order nisi should be discharged.