Burgess v Connell-Mott
[1979] FCA 161
•23 March 1979
BURGESS V. JOHN CONNELL-MOTT, HAY AND ANDERSON PTY. LTD. (1979) 37 FLR 386
Conciliation and Arbitration
COURT
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Northrop J.(1)
CATCHWORDS
Conciliation and Arbitration - Prosecution for offence - Dismissal of employee by employer - Whether dismissal by reason of circumstance that employee was member of an organization - Whether employee eligible for membership of organization - Registered organization - Rules - Eligibility for membership of organization - "Persons engaged in all kinds of general labour" - Class of employees eligible defined in relation to calling of employee - "General" restrictive and not expansive of labour described - Functions performed by employees of specialized nature - "Employees engaged in or in connexion with railway construction work" - "Persons engaged in land surveying" - Eligibility referable to industry carried on by employer - Business of employer consulting engineer - Employer appointed consulting engineer by Melbourne Underground Railway Loop Authority - Employer responsible for supervision, administration and co-ordination of construction contractors engaged by MURLA - Whether employer engaged in business of railway construction work or industry of land surveying - Whether business of employer separate and distinct from that of MURLA - Substantial character of industrial enterprise in which employer engaged - Conciliation and Arbitration Act 1904 (Cth.), s. 5 (1) (a), (d), (f).
Conciliation and Arbitration - Dismissal of employee by employer - Prosecution for offence - Whether dismissal by reason of circumstance that employee was entitled to benefit of award - Whether award binding on employer of employee - Australian Workers' Union Construction and Maintenance Award appendix - Award not expressed to be binding on employer - Award expressed to be binding on organization of employers and its members - Conciliation and Arbitration Act 1904 (Cth.) ss. 5 (1) (b), 61.
HEADNOTE
The Conciliation and Arbitration Act 1904 provides by s. 5 (1):
"An employer shall not dismiss an employee . . . by reason of the circumstance that the employee -
(a) is . . . a member of an organization . . . ; or,
(b) is entitled to the benefit of . . . an award; or . . .
(d) being a member of an organization which is seeking better industrial conditions, is dissatisfied with his conditions; or . . .
(f) being . . . a member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing
done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization."
Subsection 4 provides that in any proceedings for an offence against the section, if all the relevant facts and circumstances, other than the reason or intent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent.
Section 61 provides for the bodies and persons upon when awards are to be binding.
The Melbourne Underground Rail Loop Act 1972 (Vic.) constituted the Melbourne Underground Rail Loop Authority as a body corporate authorized to make and construct specified underground tracks in accordance with the powers specified by the Act. By an agreement in writing, the defendant was one of a number of consulting engineers appointed by the authority to be the principal consulting engineers for the project. Under the agreement, the defendant was responsible for and carried out the supervision, direction, administration and co-ordination of the contracts let or made by the authority for the execution of works and of all construction engineering and related work carried out or performed by contractors under such contracts. Under the agreement, the defendant was not required to do any construction work.
In November 1978 the informant entered into a contract of employment with the defendant as a survey chainman and performed duties as a trainee surveyor involving, to some extent, special skills while pursuing a part-time tertiary course of study. During the course of his employment the informant had purported to join the Australian Workers' Union (the A.W.U.) an organization of employees registered under the Act. Rule 6 of the rules of the organization provided for eligibility for membership of the organization in the following terms: "Subject to the rules, every bona fide worker, male or female, engaged in manual or mental labour in or in connexion with any of the following industries or callings, namely; . . . employees engaged in or in connexion with . . . railway construction work . . . all persons engaged in . . . land surveying . . . and all kinds of general labour . . . shall be entitled to become and remain members of the union . . . " An award of the Conciliation and Arbitration Commission, the Australian Workers' Union Construction and Maintenance Award 1975, was expressed by appendix I to have application to, amongst others, specified construction engineers in respect of their employment of all employees, whether members of the A.W.U. or not, in work done in or in connexion with and on the sites of, the Melbourne Underground Rail Loop project. The appendix was also expressed to apply to a specified organization of employers and its members.
In October 1978 the defendant dismissed the informant from its employment. In November 1978 the informant instituted proceedings under s. 5 of the Act against the defendant. At the close of the informant's case, the defendant submitted that there was no case to answer as the informant had failed to prove all the facts and circumstances constituting the offence under s. 5 other than the reasons set out in the charge and that, accordingly, sub-s. 4 did not apply to require the defendant to prove that the action was not actuated by that reason.
Held: (1) In order to prove one or other of the circumstances described in s. 5 (1) (a), (d) or (f), the informant must prove that at the relevant time he was a member of an organization: that necessitated proof that he came within a class of employees specified by the rules as eligible for membership of the organization.
(2) While the eligibility rule of the organization extended to persons engaged in "all kinds of general labour", which phrase was referable to a calling or occupation of an employee, the word "general" which was synonomous with "not specialized" restricted and did not expand the meaning of "labour". As the informant was a trainee surveyor engaged, to some extent, on work involving special skills while pursuing a part-time tertiary course of study, he did not come within the class of persons described by the phrase "all kinds of general labour".
The Queen v. Aird; Ex parte Australian Workers' Union (1973), 129 CLR 654, applied.
(3) The industry referred to by those parts of the eligibility rule embracing "employees engaged in or in connexion with . . . railway construction work" and "persons engaged in land surveying" was the industry of the employer. The defendant, a consulting engineer, could not, in the performance of its functions under its agreement with the authority, be said to be engaged in railway construction work or land surveying because: (a) the activities of the defendant were separate and distinct from those of construction contractors engaged by the authority to execute work in connexion with the construction of the project; (b) the defendant was not responsible for the appointment of such construction contractors; (c) the substantial character of the industrial enterprise in which the informant and the defendant were engaged was that of providing to the authority supervision and advice of a professional nature with respect to railway construction work being undertaken by construction contractors to the authority in relation to which land surveying work was incidental: the services so provided did not themselves constitute the railway construction work or land surveying, the substantial character of the industrial enterprise in which the defendant was engaged being that of a consulting engineer.
Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976), 51 ALJR 266, applied.
Re Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978), 53 ALJR 116, distinguished.
The Queen v. Watson; Ex parte Australian Workers' Union (1972), 128 CLR 77, applied.
Accordingly, the informant had failed to prove a fact or circumstance described in s. 5 (1) (a), (d) or (f), namely, that at the time of his dismissal he was a member of the organization.
(4) In order to be entitled to the benefit of an award, the informant needed to establish that his employer was bound by an award. As the defendant was not expressed to be bound by the award and as there was no evidence to show that the defendant came within the classes of persons specified in s. 61 of the Act, the informant had failed to demonstrate at the time of his dismissal he was entitled to the benefit of an award. Accordingly, the informant had failed to prove a fact or circumstance in relation to each of the pars. of s. 5 (1) relied upon, the defendant had no case to answer and the provisions of s. 5 (4) did not come into operation and the information should be dismissed.
HEARING
Melbourne, 1978, December 4; 1979, February 5, 6; March 23. #DATE 23:3:1979
INFORMATION.
An information for an offence under s. 5 of the Conciliation and Arbitration Act 1904 was laid by a person purporting to be a member of an organization registered under the Act in relation to his dismissal from employment by his employer. The full facts are set out in the judgment.
R. Miller, for the informant.
H. Nathan, for the defendant.
Cur. adv. vult.
Solicitors for the informant: Michael J. Arnold & Co.
Solicitors for the defendant: Phillips, Fox & Masel.
S. G. COLLINS
JUDGE1
March 23.
The following written judgment was delivered.
NORTHROP J. On 28th November, 1977, Paul John Burgess, the informant, entered into a contract of employment with John Connell-Mott, Hay and Anderson Pty. Ltd., the defendant, a company incorporated in the State of Victoria. The terms of the contract of employment were contained in a letter dated 28th November, 1977, from the defendant to the informant. On 16th October, 1978, in accordance with the terms of the contract of employment, the defendant dismissed the informant from its employment. On 23rd November, 1978, the informant instituted these proceedings under s. 5 Conciliation and Arbitration Act 1904, as amended, (the Act). The hearing of the information commenced on 5th February, 1979, and at the close of the informant's case, counsel for the defendant submitted that there was no case for the defendant to answer and that the information should be dismissed. After hearing submissions from counsel for the defendant and counsel for the informant the court reserved its decision. (at p389)
The relevant provisions of s. 5 (1) of the Act are as follows:
"An employer shall not dismiss an employee . . . by reason of the circumstance that the employee -
(a) is . . . a member of an organization . . .; or,
(b) is entitled to the benefit of . . . an award; or . . .
(d) being a member of an organization which is seeking better industrial conditions, is dissatisfied with his conditions; or . . .
(f) being . . . a member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization
or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization . . .
(4) In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason . . . set out in the charge as being the reason . . . of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason . . .". (at p389)
The informant claims that the defendant dismissed him by reason of one or other of the circumstances set out in s. 5 (1) (a), (b), (d) or (f) of the Act. Counsel for the defendant submitted that the informant had failed to prove all the facts and circumstances constituting the offence under s. 5 of the Act, other than the reason set out in the charge, and accordingly sub-s. 4 did not apply to require the defendant to prove that the action was not actuated by that reason. I accept the submission that for the present purposes the question of the reason for dismissal by the defendant is not relevant. It follows that for the purpose of deciding the matter reserved for judgment, there is no need to make reference to any of the evidence already given on behalf of the informant relating to the reason for dismissal by the defendant. The issue to be determined is whether the informant has proved all the facts and circumstances constituting the offence, other than the reason for the defendant's act in dismissing the informant. (at p390)
In order to prove one or other of the circumstances set out in s. 5 (1) (a), (d) or (f) of the Act, the informant must prove that at the relevant time he was a member of an organization. The informant had purported to join the Australian Workers' Union (the A.W.U.) which is an organization within the meaning of the Act. The A.W.U. had issued a membership ticket to the informant. Counsel for the defendant submitted that the informant was not eligible to become a member of the A.W.U., and therefore could not, in law, be a member of the A.W.U. It follows, so it was submitted, that the informant, therefore, failed to prove that he was a member of an organization. (at p390)
It is trite law that an organization, as party principal, has no power to create an industrial dispute within the meaning of the Act on behalf of persons not eligible for membership of that organization and has no power to stand in their place or to represent them in an industrial dispute. The fact that an organization has purported to enrol as members persons who are not eligible to become members, does not confer on that organization the power to represent those persons. In my opinion, to come within s. 5 (1) (a), (d) and (f) of the Act, the informant must prove that he is eligible to become a member of the A.W.U. In other words the informant must prove that he comes within a class of employees specified in the eligibility for membership rule of the A.W.U. When an issue of this kind is raised, the court is not bound by the production of a membership ticket nor is it bound by a certificate issued pursuant to s. 155 of the Act. The court is required to consider whether a person is eligible to become a member of the organization of which he claims to be a member. (at p390)
On three separate occasions in recent years the High Court has had to consider the eligibility for membership rule of the A.W.U.: see The Queen v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654 , Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 and Re Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 53 ALJR 116 . The eligibility for membership rule of the A.W.U. is contained in r. 6 of the rules of that organization. It is headed "Full membership" and comprises a long list of miscellaneous industries and callings. Counsel for the informant submitted that the informant came within one or other of three of the listed industries or callings. In so far as is material, r. 6 is as follows: "Full membership. Subject to these rules, every bona fide worker, male or female, engaged in manual or mental labour in or in connexion with any of the following industries or callings, namely; . . . employees engaged in or in connexion with . . . railway construction work, . . . all persons engaged in . . . land surveying . . . and all kinds of general labour . . . shall be entitled to become and remain members of the union . . ." (at p391)
Since this is a decision on a submission of no case to answer, whenever there is, on the evidence, more than one finding open, I make the finding which is the most favourable to the informant's case. (at p391)
The Melbourne Underground Rail Loop Act 1972 (Vic.) constitutes the Melbourne Underground Rail Loop Authority (MURLA) as a body corporate authorized to make and construct specified underground rail tracks in accordance with the powers contained in the Act (the project). The defendant carries on the business of a consulting engineer. It does not carry on the business of a construction engineer. By an agreement in writing dated 25th July, 1974, as varied by a supplemental agreement dated 31st October, 1974, the defendant was one of a number of consulting engineers appointed by MURLA to be the principal consulting engineers for the project which, together with all proper works and conveniences in connexion therewith, is hereinafter called the loop, upon the terms and conditions set out in the agreements. The service to be provided by the consultants, including the defendant, were many and varied. Broadly speaking, they comprised the performance and discharge for MURLA of the professional consulting engineering and architectural services and other associated functions, duties and responsibilities which the consulting engineers may be required by MURLA to furnish, perform and discharge for the purpose of or in connexion with the project. Under the agreements the defendant was not required to do any construction work, that work being carried out by contractors engaged by MURLA. The contractors are persons bound under a contract with MURLA to execute works, including the supply of materials or plant, to be constructed or carried out as part of or otherwise in connexion with the construction and completion of the loop. As a consultant the defendant was responsible forand carried out the supervision, direction, administration and co-ordination of the contracts made by MURLA for the execution of the works and of all construction engineering and related work carried out or to be performed by contractors engaged by MURLA. The defendant, being one of a number of consulting engineers appointed by MURLA, as and when requested by MURLA, was responsible for and carried out the supervision, direction, administration and co-ordination of the contracts let or made by MURLA for the execution of works and of all construction engineering and related work carried out or performed by contractors under such contracts. In addition the defendant was required to give certificates to enable the contractors to claim payment from MURLA. (at p392)
The informant was born on 11th October, 1959. At the end of the year 1976 he left secondary school having obtained the Leaving Certificate with passes in English, Physics, Mathematics 1 and Mathematics 2 and Graphics. In the year 1977 he attended Oakleigh Technical School as a full-time student in the first year of a course leading to the Certificate of Technology in surveying. In November 1977 he applied successfully for a position with the defendant. The terms of his appointment as set out in the letter dated 28th November, 1977, were as follows:
"SITE APPOINTMENT - SURVEY CHAINMAN MURLA PROJECT
"Following your application for a position with this company and subsequent discussion with Mr. A. G. Hordern, I have pleasure in confirming your staff appointment.
"Conditions of employment are as follows: 1. A basic salary of $6,300 per annum based on a forty-hour week. Normal working hours being 8.30 a.m. to 5 p.m., however, this may vary slightly between contract sites. Your first salary review will be in July
1978. 2. Overtime is worked as required and will be paid at time and a half with double time after four hours on Saturday and for Sundays and Public Holidays. Above a certain salary all overtime is paid at time and a half. It may be necessary to work on a roster basis with a five-day week including a Saturday or Sunday in which case penalty rates will be paid for these days.
3. Salary payment is made fortnightly and it will be necessary for you to advise our accounts section of your bank and account number upon commencement to enable your salary to be deposited accordingly. 4. Irregular hours are probable and an allowance of $5 per day will be paid if commencing work before 5 a.m. or after 5 p.m. 5. Annual eave will be four weeks. Normally the intervening days between Christmas and New Year are to be taken as part of annual leave. 7. Two weeks notice of termination of employment is required by either party, except in the case of misconduct. 8. A chest x-ray may be required and will be arranged by this company shortly after your commencement.
"The position offered is expected to be for the duration of the project and we expect there will be reasonable opportunities for continuity of employment. I understand you will be commencing employment on 28th November, 1977, at which time would you please report to Mr. Bill Hordern at our Flagstaff Site Office, 462 Little Lonsdale Street, Melbourne. We look forward to the opportunity of welcoming you to our staff and we are confident that an association will be to our mutual benefit." (at p393)
The defendant engaged the informant as a survey chainman. The informant was told that he was to commence work as a chainman and in six to twelve months time, if the defendant was satisfied with his work and if there was a vacancy for a survey assistant, he would be promoted to that position. He was told that the defendant did not employ people as survey assistants straight out of school, but initially they were engaged as chainmen and if they proved satisfactory and there was a position of survey assistant open, they were promoted to that position. Chainmen were allowed time off work without deduction of salary to attend studies. A chainman worked in the field with a surveyor or survey assistant. He assisted the surveyor in carrying and setting up instruments, in taking masurements and on occasions operated the instruments. He had to be able to manipulate or read plans. He was under the control of the surveyor and virtually used all the instruments a surveyor used. He participated in computing the results of the measurements taken which were then checked against the plans and contract drawings to ascertain whether the project was progressing within permissible tolerances. The results of the computations, including graphs, were reported to the superiors of the defendant, being the professional engineers who decided what action, if any had to be taken. (at p393)
In the course of his employment, the informant spent some time as a member of a survey team in precise levelling or monitoring. This was a process by which surface measurements above the tunnels of the loop were taken to ensure surface movements did not exceed permissible tolerances. The work involved the setting up and maintenance of survey equipment and the plotting of results, after computation, on a graph. For some time the informant assisted a survey team locating the site of underground services near the Eye & Ear Hospital, Melbourne, in connexion with plans for the construction of a tunnel. This work had no connexion with the MURLA project or the loop. Later the informant worked in a tunnel on the loop. He acted as an assistant to professional employees of the defendant. He collected concrete sample reports on concrete used by the construction contractors. He assisted in taking measurements to check that the tunnel was being constructed according to the specifications and filed the measurements so taken. At one time he was responsible for measuring the quantity of water flow in the tunnel resulting from seepage. He maintained a file of readings so taken over a period of time for the information of his superiors. At another time he assisted in fixing metal plates to tunnel walls at precise intervals to be utilized by the construction contractors in determining the centre of the railway tracks to be laid by them. During the period of his employment, the informant was given time off work on Friday afternoons, four hours, to pursue his studies at tertiary level. In addition he attended classes on Monday evenings outside working hours. (at p394)
The A.W.U. is a party to the Australian Workers' Union Construction and Maintenance Award 1975, as varied, (the award) being an award of the Australian Conciliation and Arbitration Commission. In so far as the award is binding upon employers, see s. 61 of the Act, it binds them in respect of all their employees, whether members of the A.W.U. or not, in work done or in connexion with specified types of industries or callings. It is not necessary to make a finding whether the informant comes within any of the classifications contained in the award. From time to time an appendix has been inserted in the award extending its application to various construction projects in Victoria. One of the construction projects included in the appendix is the MURLA project. During the calendar year 1978 the relevant provisions of the appendix were as follows:
"APPENDIX 1
VARIOUS CONSTRUCTION PROJECTS - VICTORIA I - APPLICATION
This appendix shall apply to: (a) The Australian Workers' Union and the members thereof (to any of whom the word 'employee', when hereinafter used, applies); (b) The Victorian Employers' Federation and the members thereof; (c) Codelfa Constructions Pty. Ltd., Construction of Metropolitan Tunnels and John Holland Construction Pty. Ltd., in respect of the employment of such employers of all employees whether members of the Australian Workers' Union or not in work done in or in connexion with, and on the sites of, the Melbourne Underground Rail Loop Project and the ancillary works authorized to be constructed by the Melbourne Underground Rail Loop Act 1970 (as amended) of the Parliament of Victoria; . . . Provided that save as to any matters dealt with in this appendix, the provisions of this award shall apply." (at p394)
Each of the employers mentioned in (c) above is a contractor engaged by MURLA under a contract to execute works to be constructed or carried out as part of or otherwise in connexion with the construction and completion of the loop. The Victorian Employers' Federation is an organization within the meaning of the Act. The defendant is not, and at the time it dismissed the informant, was not, a member of the Victorian Employers' Federation. (at p395)
I turn to consider whether the informant comes within the class of persons described by the phrase "all kinds of general labour" contained in r. 6 of the rules of the A.W.U. These words describe a calling or occupation of an employee. The words were "used at the end of the conditions of eligibility in their earliest form, apparently to comprehend labourers not employed in the industries therein specifically mentioned": see The Queen v. Aird; Ex parte Australian Workers' Union per Gibbs J. (1973) 129 CLR, at p 666 . In that case the High Court held that employees engaged to do labouring work in connexion with the production of ready-mixed concrete at batching plants, not on a building or construction site, were not eligible to be members of the A.W.U. Gibbs J. said: "The prosecutor also suggested that the words 'all kinds of general labour' might include work in or in connexion with the manufacture of ready-mixed concrete. I do not doubt that persons engaged in making ready-mixed concrete may properly be described as labourers. However, the phrase 'all kinds of general labour' does not mean all kinds of labour; if it bore that meaning it would have been unnecessary to list at length the other industries and callings that are mentioned in the conditions of eligibility. The word 'general' does not expand, but restricts, the meaning of 'labour'. It would not be desirable to attempt any exhaustive definition of the words 'general labour'; in the present case it is enough to say, speaking broadly, that the word 'general' in that phrase is used in the sense of 'not specialised'. An employee whose work is separately classified on the basis of some special skill or experience necessary to perform it is not engaged in general labour. Even if it be the fact (as to which it is unnecessary to express an opinion) that the three classes of employees engaged in the making of ready-mixed concrete do not all require special skills of a very high order, it is apparent that they are engaged in occupations which are to some extent specialized and therefore would not properly be described as engaged in general labour" (1973) 129 CLR, at p 668 . (at p395)
In the present case, in no sense can it be said that the informant was engaged in general labour as interpreted by the High Court. He was a trainee surveyor pursuing a course part-time at tertiary level and was engaged to do work involving to some extent special skills. In my opinion the informant does not come within the class of persons described by the phrase "all kinds of general labour". (at p395)
The other two classes of persons which counsel for the informant submitted were appropriate to include the informant so as to entitle him to become a member of the A.W.U. can be considered together. These classes are "employees engaged in or in connexion with . . . railway construction work . . . all persons engaged in land surveying". The two industries here specified refer to the industry of the employer, see Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 when, in respect of the relevant provisions of r. 6 of the rules of the A.W.U., the Chief Justice said:
"It is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating to the industry of the employer; that is to say, that persons to be eligible to be members of the organization must be employed in an industry carried on by their employer which satisfies one or more of the descriptions of the eligibility clause: see e.g. The Queen v. Hibble; Ex parte Broken Hill Pty. Co. Ltd.
(1921) 29 CLR 290, at p 297
. In relation to the present circumstances that means that, to be eligible for membership of the applicant, the employees of the respondent companies must be employed by the respondent companies in or in connexion with the industry of metalliferous mining. Whether or not they are so employed is a question of fact: see e.g. Hibble's case"
(1976) 51 ALJR, at p 268
. (at p396)
The issue to be decided is whether the defendant, in carrying on its business as a consulting engineer, is engaged in the industry of railway construction work or the industry of land surveying when it is carrying out its obligations under its agreements with MURLA. Truly, the contractors engaged by MURLA to execute works to be constructed or carried out as part of the project are engaged in the industry of railway construction work, but the question to be decided is whether the informant, as an employee of the defendant, was employed in or in connexion with the industry of railway construction work or land surveying. (at p396)
The principles to be applied are stated in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 . In that case, the High Court held that employees of companies carrying on catering and cleaning businesses and which had contracts with certain iron ore mining companies operating in the north-west of Western Australia to supply and perform catering and cleaning for and in respect of the buildings of and housing accommodation provided by the mining companies for and in respect of the employees of the mining companies and their dependants, were not employed in or in connexion with the industry of metalliferous mining within r. 6 of the rules of the A.W.U. and therefore were not eligible to become members of the A.W.U. In a judgment with which the other members of the High Court agreed, the Chief Justice said:
"The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities
and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining; nor were their employees employed in connexion with that industry. Their businesses remained distinct. Though serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connexion with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in The Queen v. Central Reference Board; Ex parte Thiess (Repairs) Pty. Ltd.
(1948) 77 CLR 123, at p 141
,
thought that the separateness of the establishments in point of control, organization, place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham in the same case
(1948) 77 CLR, at p 135
, thought that the
substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc. services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connexion with metalliferous mining or that their employees are employed in or in connexion with such an industry. None of the reasons put forward by the applicant for a contrary conclusion, whether taken separately or cumulatively warrants such a conclusion"
(1976) 51 ALJR, at pp 268-269
. (at p397)
The application of these principles is illustrated in Re Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 53 ALJR 116 . In that case a number of companies were engaged in the industry of metalliferous mining. The mining companies appointed "project consulting engineers" to design and supervise the construction of the various works proposed in relation to the establishment of uranium mines, the actual work of construction being undertaken by either the project consulting engineers or independent contractors engaged and employed by the project consulting engineers. The prosecutor submitted that employees of the project consulting engineers in respect of the relevant work of construction in relation to the mines were not employed in or in connexion with the industry of metalliferous mining within the meaning of r. 6 of the rules of the A.W.U. It was submitted that those employers were engaged in or in connexion with the construction industry and therefore were not eligible to become members of the A.W.U. With respect to these employees of the project consulting engineers the crucial words under consideration were "now employed or hereafter to be employed by you in all construction work in or in connexion with or incidental to the uranium mining and processing industry". The High Court rejected those submissions. Jacobs J. said: "The respondent companies other than Ranger, Queensland Mines, Pancontinental and Noranda are described in the evidence as project consulting engineers. One or others of these respondents have been appointed by Ranger, Queensland Mines or Pancontinental. As yet Noranda has not appointed a project consulting engineer. Construction work at the proposed mine sites will be undertaken primarily by independent contractors employed by the project consulting engineers respectively appointed by the named mining companies. In the case of Pancontinental the evidence establishes that the project consulting engineer will construct the uranium mines and associated facilities by acting as manager and agent for the mining company in the letting of contracts for and on behalf of the mining company and by itself directly employing labour. It does not appear that the procedure to be adopted in the case of the other mining companies is likely to be substantially different, though it is not certain that a relationship of principal and agent will exist between the mining companies and the respective project consulting engineers.
"In these circumstances, it is submitted, it has not been established that any of the respondent companies is, or is likely to be, engaged in construction work in or in connexion with or incidental to the uranium mining and processing industry; in the case of the four mining companies because they will not themselves be carrying out the construction work, and in the case of the project consulting engineers because the construction work proposed to be done by them is not work in or in connexion with the industry of metalliferous mining or any industry of which the A.W.U. has coverage under its eligibility rule. It is further submitted that the presence in the log of cl. 5 shows in the circumstances that the basic purpose of the demand was to compel the respondent companies to employ contractors whose employees would be employed on the conditions set out in the present demands.
"It is abundantly clear that the four mining companies each wish to have constructed a mine or mines with all ancillary works. It is equally clear that the other companies propose to engage in the work of constructing the mines and all their ancillary works. Nothing could be more closely related to metalliferous mining than constructing or having constructed a metalliferous mine and its ancillary works. It is an integral part of the mining operation. See per Barwick C.J. in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union
(1976) 51 ALJR, at p 268
. The facts in the
lastmentioned
case were quite different. Catering and cleaning services were far removed from any concept of metalliferous mining which was the relevant industry in that case. The decision does not assist the present applicant.
"The argument of the applicant has the extraordinary result that the metalliferous mines and their ancillary works would be constructed without anybody engaged in that construction being engaged on work in or in connexion with metalliferous mining. It seems to me that the proposition has only to be stated in order that it may be seen how untenable the argument is. Construction work cannot be looked at apart from what is being constructed. The connexion is so close as to be inseparable. The mine owner is engaged in or in connexion with the industry of metalliferous mining when it has its metalliferous mining installations and associated works constructed. The constructor is engaged in work in connexion with metalliferous mining when it constructs the mining installations and associated works"
(1978) 53 ALJR, at pp 118-119
. (at p399)
In the same case Aickin J. said: "The principal argument which was pressed was that the demand was made on employers who had no present intention of employing persons covered by the eligibility clause, because the only prospective employers (the project engineers) were not engaged in the mining industry, but in the construction industry. It is desirable to deal with this argument in relation to the project engineers, merely noting that Pancontinental is plainly engaged in the mining industry and in its case no problem of 'coverage' could arise. It does not, in my opinion, follow from the fact that it may be said that an employer is engaged in construction work that he may not also properly be regarded as engaged in activities in or in connexion with metalliferous mining. The question is whether the activity of the project engineers is 'in or in connection with metalliferous mining'" (1978) 53 ALJR, at p 121 . (at p399)
His Honour then referred to Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 and set out the passage from the judgment of Barwick C.J. already referred to (1976) 51 ALJR, at p 268-269 and continued: "I have quoted that passage in full because it appears to me to determine the present matter. By way of contrast, the activities of the project engineers in the present case cannot, in my opinion, be said to be 'quite distinct and separate from that of the mining companies engaged in metalliferous mining'. Here what they are doing is itself part of the business of metalliferous mining, and at the very least it is 'in connexion with' that industry. It is, I think, equally clear that there is no 'separateness of establishments' in the sense referred to in the passage quoted because on the facts here in question the 'establishment' of each project engineer is in truth that of the mining company for the purpose of carrying out the latter company's mining operations during both the construction and the mining stages. Applying the other test quoted, the substantial character of the industrial enterprise in which the project engineers and their employees will be engaged will be in the metalliferous mining industry, notwithstanding that all, or some, of it may properly be called construction work" (1978) 53 ALJR, at p 122 . (at p400)
Before applying these principles to the facts of the present case, reference should be made to The Queen v. Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77 . In that case, the eligibility for membership rule of the Australian Builders' Labourers' Federation, an organization within the meaning of the Act, was under consideration. The court held that persons employed to do work in connexion with the production of ready-mixed concrete at batching plants, not on a building site, were not eligible to become members of the federation on the basis that they did not come within the eligibility for membership rule of the federation. The rule listed a number of industries and callings and stated that persons employed as builders' labourers on or about any building or contracting job or any labourer engaged in the construction of buildings "or doing concrete work, tarpaving or asphalt work, or mortar or concrete mixing in connexion with or incidental to the foregoing operations". Menzies J. (1972) 128 CLR, at p 84 said that the words quoted should be regarded as words of extension and continued: "Thus, labourers usually employed in concrete mixing for paving the surrounds of a building would fall within the words, as well as those usually engaged in concrete mixing for the purpose of making the floors of the building.
"I am disposed to think that some workers at a concrete batching plant are for some time engaged in mixing concrete in what could be described as in connexion with, or incidental to, building operations. At least part of the wet mix concrete which, at such plants, is run into transit mixers for carriage to the job, has been mixed for use in building operations. The case for the federation cannot, I think, be put higher than that, with this addition; namely, that concrete for this use forms the bulk of the concrete so mixed. The question is whether this is sufficient to constitute the workers at the concrete batching plants 'builders' labourers'.
"I think not.
"First, those who are employed at the batching plants are not employed by builders or their sub-contractors in building operations. Secondly, such employees, to the extent to which they do mix concrete, do so for a variety of purposes, e.g. to make roads, subways, runways, hard-standing, wharves, buildings, bridges, slabs and other such concrete objects. The occupation of such workers is not, I think, to be defined by the use to be made of some part of the concrete which they mix. Nor can it be thought that their employment changes in character according to the use to be made of their product. Their employment is the same whether they are making concrete for the floor of a city building or for a railway tunnel. Such employees are not concrete mixing in connexion with, or incidental to, the operations described in the rules. It is common ground that the words 'the foregoing operations' in the rule would not cover general construction work or the making of concrete articles. Accordingly, it seems to me that the words of limitation which follow the words 'concrete mixing' in r. 4, support the conclusion that the employees concerned are outside the eligibility clause of the rule, even if the work which they do could otherwise be regarded as the work of builders' labourers. Concrete mixers, etc., employed by builders whether on-site or off-site are not within the scope of this judgment.
"Accordingly, in my opinion, the employees of the respondent employers in concrete batching operations as described are not builders' labourers, and they are not eligible for membership of the federation"
(1972) 128 CLR, at pp 84-85
. (at p401)
In my opinion the informant was not employed in or in connexion with the industry of railway construction work. The activities of the defendant are quite distinct and separate from those of the contractors engaged by MURLA to execute the works in connexion with the construction and completion of the loop. The facts of the present case are markedly different from those applying in Re Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 53 ALJR 116 . The defendant did not appoint or engage those contractors. The obligations imposed upon the defendant by the agreement with MURLA are necessary to enable MURLA to perform the duties imposed upon it by the Melbourne Underground Rail Loop Act 1972, to make and construct the loop but this does not mean that in performing those duties the defendant was engaged in the industry of railway construction work or rather that its employees were employed in or in connexion with that industry. It cannot be said that whenever an employer supplies goods or services to MURLA to enable MURLA to perform its statutory duties, the employees of the employer so supplying the goods or services are employed in or in connexion with the industry of railway construction work. The employees of MURLA and of the contractors engaged by it to execute the work in connexion with the construction and completion of the loop may well be employed in or in connexion with railway construction work. That fact is supported by the naming of the contractors as persons bound by the award. The contractors engaged by MURLA to execute the work are named in appendix 1 as persons bound by the award. The defendant is not so named. In passing, it is noted that MURLA is not so named but in considering the issue before the court, the court is not bound by what appears in the award in deciding whether the defendant is engaged in the industry of railway construction work. The substantial character of the industrial enterprise in which the informant and the defendant were engaged was that of providing to MURLA supervision and advice of a professional nature with respect to railway construction work being undertaken by other contractors with MURLA. The services as so provided were of a professional nature or quality and did not constitute railway construction work. The word "work" used in that phrase must be given some meaning and indicates that the phrase should be read as being limited and applying to that part of the industry of railway construction being in or in connexion with the physical work of railway construction. The defendant is not engaged in that type of industry. (at p402)
For similar reasons I am of the opinion that the phrase "land surveying" has no application. It is true that employees of the defendant do some land surveying work but this is merely incidental to the business being conducted by the defendant. It is part of a process by which the defendant is able to perform the obligations imposed upon it by the term of its agreements with MURLA. The defendant does not carry on the business of land surveyor. Here the substantial character of the industrial enterprise in which the defendant engages is that of a consulting engineer. It cannot be said that the informant is employed in or in connexion with the industry of land surveying. (at p402)
For these reasons I find that the informant was not entitled to become a member of the A.W.U. and at the time the defendant dismissed him he was not a member of the A.W.U. It follows that the informant has failed to prove a fact or circumstance set out in s. 5 (1) (a), (d) and (f) of the Act namely that at the time of his dismissal he was a member of an organization. In these circumstances it is not necessary to consider other submissions made by counsel for the defendant that the informant had not proved other facts and circumstances set out in those paragraphs. (at p403)
I turn now to consider whether the informant has failed to prove the facts or circumstances set out in s. 5 (1) (b) of the Act. In order to be entitled to the benefit of an award, the informant must prove that his employer is bound by an award as defined in s. 4 (1) of the Act. Section 61 of the Act specifies the persons who are bound by an award, see The Queen v. Clarkson; Ex parte Victorian Employers' Federation per Menzies J. (1973) 131 CLR 100, at pp 106-107 . There was only one award before the court. The defendant is not named in that award as a person bound by the award. There is no evidence to suggest that the defendant comes within s. 61 (a), (b), (c), (d) or (e) of the Act. The defendant is not, and at the time it dismissed the informant, was not, a member of the Victorian Employers' Federation. There is no evidence to suggest that the defendant was a member of any other organization bound by the award and therefore the defendant does not come within s. 61 (f) of the Act. It follows that the informant has failed to prove the fact or circumstance set out in s. 5 (1) (b) of the Act, namely, that at the time of his dismissal he was entitled to the benefit of an award. (at p403)
In these circumstances I find s. 5 (4) of the Act does not operate and that the defendant has no case to answer. Accordingly, the information is dismissed. (at p403)
ORDER
Information dismissed.
6
0