In the Matter of the Conciliation and Arbitration Act, 1904 And In the Matter of a reference by the Industrial Registrar of questions of law

Re APPLICATION OF JACQUES APER UNDER s. 144A. (1978) 35 FLR 388
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
J.B. Sweeney(1), Evatt(1) and St. John(1) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Conscientious objection to membership of organization - Application for certificate - Whether person's conscientious beliefs do not allow person to be a member of any association of a kind described in s. 132 (1) - Reference of questions of law to court - Whether a certificate capable of issue to self-employed person - "Person" - Statutory construction - Legislative intention of efficacy of certificate - Effect of certificate - Discriminatory action - Preference - Statutory protection of persons holding certificate as employees - Payment of prescribed fee condition precedent to issue of certificate - Fee determined according to annual subscription of an organization appropriate to past and likely future employment of applicant - Whether conscientious beliefs must extend to all associations of a kind described in s. 132 (1) - Associations capable of registration - Extension of class of persons eligible for membership of associations of employees - Independent contractors - Associations and organizations - Nature of requisite belief - Genuine conscientious beliefs preventing membership of any industrial association - Nature of proceedings before Registrar - Rules of natural justice - Opportunity of being heard by organizations likely to be affected by issue of certificate - Conciliation and Arbitration Act 1904, ss. 4, 47, 132, 132A, 144A.

HEADNOTE

The Conciliation and Arbitration Act 1904 provides by s. 144A (1) as follows "Where a person, upon application made to the Registrar in the prescribed form and manner, and payment of the prescribed fee, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of any association of a kind described in a paragraph of sub-section (1) of section 132, the Registrar shall issue to the person a certificate to that effect." Arising out of an application made to the Registrar for a certificate under s. 144A (1), the Registrar referred the following questions of law to the court under s. 112 of the Act: (1) Can a self-employed person who has satisfied the Registrar about his conscientious beliefs be issued with a certificate pursuant to s. 144A (1)? (2) (a) Does s. 144A (1) require that an applicant person's conscientious beliefs do not allow that person to be a member of all associations of a kind described in s. 132 (1), or may his or her conscientious beliefs be limited to one or more particular associations? (b) What is the meaning of the word "associations" in the context of s. 144A (1)?

Held: (1) While s. 144A (1) provided for the issue of a certificate to a "person", it was not to be supposed that the legislature intended its issue to a person, such as one unwilling or unable to join the workforce, to whom it was useless.

(2) Accordingly, it was proper, in construing the word "person" in s. 144A (1) to have regard to other provisions of the Act, and in particular ss. 47, 144A (2), (5), (6) and 132A: (a) s. 47 (3) provided for one effect of the issue of a certificate: an award of preference, because it could be made only in relation to an industrial matter, was limited to employees in their relationship with employers and did not extend to independent contractors; (b) a second effect was provided by s. 144A (5) and (6) prohibiting specified actions against certain persons in their capacity as employees; (c) further s. 144A (2), under which the payment of a prescribed fee was a condition precedent to the issue of a certificate, could operate only where a person was employed or was qualified for and seeking employment; (d) under s. 132A the class of persons protected, independently of the issue of a certificate under s. 144A, from specified discriminatory action was self-employed persons or independent contractors: it was unlikely that the legislature having so provided under s. 132A made similar provision under s. 144A only where the same person was the holder of a certificate; (e) neither the extension by Act No. 138 of 1974 of the classes of persons eligible for membership of an association of employees capable of registration under the Act (so as to include independent contractors) nor its subsequent restriction by Act No. 108 of 1977 (to those independent contractors deemed to be employees by specified industrial legislation of certain States) was relevant to the construction of the word "person" in s. 144A (1).

(3) Thus, the word "person" in s. 144A (1) should be construed so as to exclude persons who were not employees unless they were usually employed as employees or qualified under s. 144 so to be employed and seeking employment; in particular it excluded self-employed persons and independent contractors unless they were at the same time qualified for, and seeking employment as, employees in an industry. Accordingly, the first question should be answered "No". Consideration of the history of s. 47.

(4) The kinds of associations described by s. 132 (1), to which the conscientious beliefs were required to relate, embraced those of employers only, employees only, employees and independent contractors or employers and independent contractors. The requisite beliefs were not required to be restricted to organizations registered or associations capable of registration under the Act but were required to relate to associations whose common purpose was the regulation of industrial relations.

(5) A conscientious belief which would not allow the joining of one particular association nor the joining of a particular organization for transitory or ephemeral reasons did not suffice: what was required was a conscientious belief which did not allow the joining of either employer or employee associations.

(6) The protection of s. 144A which was not limited to exemption or protection against one organization or one type of organization was available to employees not because of a mere dislike of a union but where there was a genuine conscientious belief preventing his joining any industrial organization, the requisite belief involving an innate conviction of what was morally right and wrong.

The Queen v. District Court of the Northern District of the State of Queensland; Ex parte Thompson (1968), 118 CLR 488 per Barwick C.J. at pp 492-493, applied.

Re Appeals from Registrar under Industrial Arbitration Act 1940-1953, Section 129B (11) (1954), 53 AR (NSW) 71, considered and applied.

Accordingly, question 2 (a) should be answered that s. 144A (1) required that an applicant's conscientious beliefs do not allow him to be a member of all associations described in s. 132 (1).

Consideration of the desirability of the observance by the Registrar of the rules of natural justice and, in particular, the opportunity of being heard by oorganizations likely to be affected, on an application under s. 144A (1) for a certificate.

(7) The word "association" in s. 144A (1) meant association as defined in s.4; that defined meaning applied unless the context otherwise required and nothing in the context so required. Accordingly, question 2 (b) should be answered that associations means associations as defined in the Act.

HEARING

Sydney, 1978, August 28; September 4, 18, 19; November 2. #DATE 2:11:1978

REFERENCE OF QUESTIONS OF LAW.

The Registrar referred to the court under s. 112 of the Conciliation and Arbitration Act 1904 questions of law arising out of an application under s. 144A (1) for the issue of a certificate under that section.

M.H. Byers Q.C. S.G., and J.L. Trew, for the Attorney-General, intervening.

K.R. Handley Q.C. and A.R. Castan, for the Australian Council of Trade Unions, intervening by leave.

J.S. Purdy, for Roger Shepley Williams and Francis Robert Heaney, members of the Christian Fellowship, intervening by leave.

M. Rahilly, for the Confederation of Australian Industry, intervening by leave.

W.J. Glover, for the Master Builders' Association of New South Wales, the Master Builders' Association of Victoria, the Master Builders' Association of Queensland, the Masters Builders' Association of Tasmania and the Master Builders' Association of South Australia, intervening by leave.

D. Andrew for the Master Builders' Association of the Australian Capital Territory, intervening by leave.

S. Rothman, for the Building Workers' Industrial Union of Australia, intervening by leave.

J. Anderson, for the Operative Painters' and Decorators' Union, intervening by leave.

J.D. McLaughlin, for the Amalgamated Society of Carpenters and Joiners, intervening by leave.

B. Dougherty, for the Industrial Registrar.

Cur. adv. vult.

Solicitors for the Australian Council of Trade Unions: Holding Redlich & Co.

JUDGE1

November 2.

THE COURT delivered the following judgment.

Pursuant to s. 112 (1) of the Conciliation and Arbitration Act 1904 (the Act), the Industrial Registrar on 3rd August, 1978, referred the following questions of law arising in a matter before him for the opinion of the court: (1) Can a self-employed person who has satisfied the Registrar about his conscientious beliefs be issued with a certificate purusant to s. 144A (1)? (2) (a) Does s. 144A (1) require that an applicant person's conscientious beliefs do not allow that person to be a member of all associations of a kind described in s. 132 (1), or may his or her conscientious beliefs be limited to one or more particular associations? (b) What is the meaning of the word "associations" in the context of s. 144A (1)? (at p391)

By direction of the court, a copy of the reference was served on Mr. Aper, the applicant for a certificate, but there was no appearance for him.
HISTORY. (at p391)
Prior to 1947, s. 40 (1) and (2) of the Act (1904-1946) made provision that awards might direct that, as between members of organizations of employers or employees and other persons offering or desiring services or employment at the same time, preference should be given to such members "other things being equal". (at p391)
By Act No. 10 of 1947, s. 40 was repealed and a new s. 56 dealing with power to grant preference for members of organizations was enacted. Section 56 was amended and renumbered s. 47 by Act No. 44 of 1956 which came into force on 30th June, 1956. Thereafter, and until 21st October, 1977, the date when relevant parts of Act No. 108 of 1977 came into force, s. 47 read:

"(1) The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order.

"(2) Whenever, in the opinion of the Commission, it is necessary, for the prevention or settlement of an industrial dispute, for ensuring that effect will be given to the purposes and objectives of an award, for the maintenance of industrial peace or for the welfare of society to direct that preference shall be given to members of organizations as provided by the last preceding sub-section, the Commission shall so direct.

"(3) Where -

(a) the Commission has, under sub-section (1), directed, by award or order, that preference shall be given to members of an organization which is an association of employees; and

(b) a person, upon application made to the Registrar in the prescribed form and manner, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of such an organization,

the Registrar shall, subject to sub-section (5), issue to the person a certificate to the effect that, while the certificate, or a renewal of the certificate, is in force, an employer bound by the award or order is not required, by reason of the award or order, to give preference to members of the organization over the person, and the certificate has effect according to its tenor.

"(4) A certificate under the last preceding sub-section remains in force for such period, not exceeding twelve months, as is specified in the certificate, but, subject to the next succeeding sub-section,

may be renewed from time to time by the Registrar for such period, not exceeding twelve months, as the Registrar thinks fit.

"(5) The Registrar -

(a) shall not issue a certificate to a person under sub-section (3) in relation to a direction under sub-section (1) unless the person has paid to the Registrar such amount as would, in the opinion of the Registrar, be payable by the person to the organization specified in the direction in respect of entrance fees and sub-scriptions

if the person became a member of the organization on the day on which the certificate is to be issued and continued to be such a member for the period during which the certificate is to remain in force; and

(b) shall not renew the certificate unless the person has paid to the Registrar such amount as would, in the opinion of the Registrar, be payable by the person to the organization in respect of subscriptions if he were a member of the organization immediately before the renewal of the certificate and continued to be such a member for the period during which the renewed certificate is to remain in force.

"(6) The Registrar shall pay amounts received by him under the last preceding sub-section into the Consolidated Revenue Fund.

"(7) In sub-section (3), 'conscientious beliefs' means any conscientious beliefs whether the grounds for the beliefs are or are not of the doctrine of any religion." (at p392)

It is clear that the provisions of sub-ss. (3) to (7) inserted in s. 47 by Act No. 44 of 1956 had their origin in the provision in relation to preference to unionists provided for in the Industrial Arbitration Act, 1940 (N.S.W.). (at p392)
Section 129B of that Act was enacted by the Industrial Arbitration (Amendment) Act, 1953 (N.S.W.). It replaced provisions made by Act No. 10 of 1951 which had provided for preference, with exemption in the case of an employee who satisfied the Registrar that he had a conscientious objection, based on religious grounds, to joining an industrial union of employees. (at p393)
The new section provided that an employer engaged in any industry or calling to which an award or industrial agreement relates or applies should give absolute preference of employment to members of the industrial union or unions engaged in such industry or calling, and that an adult person employed in any industry or calling to which an award or industrial agreement relates or applies should become a financial member of an industrial union of employees whose members are engaged in such industry or calling; and by sub-s. (10) it was provided that these obligations should not apply to or in respect of the employment, among others, of a person who has been issued by the Registrar pursuant to sub-s. (11) with a certificate of exemption from membership of an industrial union if such certificate, or any renewal thereof, was for the time being in force, or to any person who had applied for a certificate of exemption and whose application had not been finally determined. (at p393)
Subsection (11) of s. 129B provided as follows:

"(a) For the purposes of this subsection 'conscientious belief' includes any conscientious belief whether the grounds thereof are or are not of a religious character and whether the belief is or is not part of the doctrine of any religion.

(b) Any person who -

(i) objects on the grounds of conscientious belief to being a member of an industrial union of employees; and

(ii) applies in the manner prescribed to the registrar for a certificate of exemption from membership of any such union; and

(iii) satisfies the registrar that his objections on the grounds of conscientious belief are genuine; and

(iv) pays to the registrar an amount equivalent to the subscription prescribed by the rules of the industrial union for membership of such union;

shall be issued by the registrar with a certificate of exemption from membership of the industrial union.

(c) Any such certificate shall remain in force for the period specified therein and may be renewed from time to time by the registrar upon payment of such amount, not exceeding the amount referred to in subparagraph (iv) of paragraph (b) of this subsection, as the registrar may require.

(d) Any amount received by the registrar pursuant to this subsection shall be paid by him to the credit of the Consolidated Revenue Fund.

(e) Any person whose application for a certificate of exemption from membership of an industrial union, or for any renewal thereof, under this subsection is refused, may within twenty-one days of the decision of the registrar refusing the application appeal in the manner prescribed to the commission from such decision. The commission may on such appeal make such order as it thinks fit." (at p394)

Shortly after s. 129B of the Industrial Arbitration Act (N.S.W.) was enacted, the section was considered by the New South Wales Industrial Commission in Court Session in the matter Re Appeals from Registrar under Industrial Arbitration Act, 1940-1953, Section 129B (11) (1954) 53 AR (NSW) 71 . Judgment in this matter was given on 8th April, 1954, and it seems clear that the draftsman of sub-ss. (3) to (7) of the Act (1904-1956) had regard to the New South Wales Act and the decision of the New South Wales Industrial Commission. (at p394)
Before considering the amendments made to the relevant sections of the Act by Act No. 108 of 1977, it is necessary to refer to the history of s. 132 of the Act. Section 18 of Act No. 44 of 1956 amended s. 70 of the then Act and re-numbered s. 70, s. 132. Between 1956 and 1974 s. 132 provided for the registration of organizations which were to be either an association of employers or an employer or an association of employees or of persons engaged in an industrial pursuit or pursuits. (at p394)
Section 4 of Act No. 89 of 1974 which came into operation on 29th October, 1974, amended s. 132 of the Act by adding to the possible membership of associations which may be registered, independent contractors. (at p394)
The relevant amendments to the Act made by Act No. 108 of 1977 are now considered.
As to s. 47. (at p394)
Subsections (3) to (7) of s. 47 as set out above were repealed and a new sub-s. (3) inserted. This subsection reads: "(3) Where the Commission has, under sub-section (1), directed, by an award or order, that preference shall be given to members of an organization of employees, an employer bound by the award or order is not required, by reason of the award or order, to give preference to members of the organization over a person in respect of whom there is in force a certificate issued under section 144A."
As to s. 132. (at p394)
Section 12 of the amending Act amended pars. (b) and (c) of subs. (1) of s. 132 by, in substance, limiting the new classes of persons who may be comprised in employee organizations to independent contractors in the four States in which the State industrial legislation deemed those independent contractors to be employees for the purposes of the State Act. Section 132 (1) and (4) then read:

"(1) Any of the following associations or persons may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization:

(a) Any association the members of which include employers in or in connexion with any industry who have, in the aggregate, throughout the 6 months next preceding the application for registration, employed on an average taken per month not less than 100 employees in that industry and the other members, if any, of which are -

(i) officers of the association;

(ii) persons, other than employees, who carry on a business in or in connexion with that industry; or

(iii) persons who, when admitted to membership, were employers in or in connexion with that industry, and who have not resigned and whose membership has not been terminated, but does not include an association that has members referred to in sub-paragraph (ii) or (iii) unless the association is effectively representative of the members who are employers in or in connexion with that industry;

(aa) Any employer who has, throughout the 6 months next preceding the application for registration, employed on an average taken per month not less than 100 employees in that industry;

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

(i) officers of the association; or

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

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

(c) Any association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits and the other members, if any, of which are -

(i) officers of the association; or

(ii) persons who are employees who are qualified to be engaged as employees in that industrial pursuit or in one of those industrial pursuits;

but does not include an association which has members referred to in sub-paragraph (ii) unless the association is effectively representative of the members who are employees engaged in that industrial pursuit or those industrial pursuits.

"(4) In sub-paragraph (ii) of paragraph (b), and sub-paragraph

(ii) of paragraph (c), of sub-section (1), 'employee' means any employee in any industry, and includes -

(a) any person whose usual occupation is that of employee in any industry; and

(b) any person employed in an industry, or engaged in an industrial pursuit, in the State of New South Wales, Queensland, South Australia or Western Australia who -

(i) in the case of a person so employed or engaged in New South Wales - is an employee for the purposes of the Industrial Arbitration Act 1940 of that State or that Act as amended from time to time;

(ii) in the case of a person so employed or engaged in Queensland - is an employee for the purposes of the Industrial Conciliation and Arbitration Act 1961-1976 of that State or that Act as amended from time to time;

(iii) in the case of a person so employed or engaged in South Australia - is an employee for the purposes of the Industrial Conciliation and Arbitration Act, 1972-1975 of that State or that Act as amended from time to time; or

(iv) in the case of a person so employed or engaged in Western Australia - is a worker for the purposes of the Industrial Arbitration Act, 1912-1976 of that State or that Act as amended from time to time." (at p396)

New Sections added - s. 132A and s. 144A. (at p396)
Section 13 of the amending Act provided:

"13. After section 132 of the Principal Act the following section is inserted:

'132A (1) An organization -

(a) shall not advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person by reason of the circumstance that the eligible person is not a member of the organization;

(b) shall not take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take discriminatory action against an eligible person by reason of the circumstance that the eligible person is not a member of the organization; or

(c) shall not take, or threaten to take, industrial action against an eligible person being an employer, with the intent to coerce him to join the organization.

(2) A contravention of sub-section (1) is an offence against that sub-section punishable, upon conviction, by -

(a) where the action constituting the offence has continued for more than a day - a penalty not exceeding a fine of $400 for each day during which that action has continued; or

(b) in any other case - a penalty not exceeding a fine of $400.

(3) In any proceedings for an offence against sub-section (1), if all the relevant facts and circumstances, other than the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that the action was not actuated by that reason or taken with that intent.

(4) For the purposes of this section, an action taken by -

(a) the committee of management of an organization;

(b) the committee of management of a branch of an organization;

(c) an officer, employee or agent of an organization;

(d) a group of members of an organization; or

(e) a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organization,

shall be deemed to have been taken by the organization.

(5) In this section -

"discriminatory action", in relation to an eligible person, means -

(a) to refuse to make use of, or to refuse to agree to make use of, any service offered by the eligible person; or

(b) to refuse to supply, or to refuse to agree to supply, goods or services to the eligible person;

"eligible person" means a person who -

(a) is engaged in activities in an industry, otherwise than as an employee; and

(b) by reason of being so engaged, is, or would, if he were an employee, be, eligible to join an organization'." (at p397)

Section 22 of the amending Act provided:

"22. After section 144 of the Principal Act the following section is inserted:

'144A (1) Where a person, upon application made to the Registrar in the prescribed form and manner, and payment of the prescribed fee, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of any association of a kind described in a paragraph of sub-section

(1) of section 132, the Registrar shall issue to the person a certificate to that effect.

(2) In sub-section (1) -

"conscientious beliefs" means any conscientious beliefs, whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion;

"prescribed fee", in relation to an applicant under sub-section

(1), means a fee equal to the annual subscription payable by the members of the organization that, in the opinion of the Registrar, is the organization that would, but for the person's conscientious beliefs, have been the appropriate organization for the person to join having regard to his past employment (if any) and his future prospects of employment.

(3) Notwithstanding section 88F, no appeal lies to the Commission against -

(a) a decision of the Registrar to issue a certificate under sub-section

(1); or

(b) a determination by the Registrar of the prescribed fee in relation to an applicant under sub-section (1).

(4) A certificate under sub-section (1) remains in force for such period, not exceeding 12 months, as is specified in the certificate but may be renewed from time to time by the Registrar for such period, not exceeding 12 months, as the Registrar thinks fit.

(5) An employer -

(a) shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization;

(b) shall not threaten to dismiss an employee, being a person in respect of whom there is in force a certificate under sub-section

(1), or to injure such an employee in his employment or to alter the position of such an employee to his prejudice, with intent to coerce the employee to join an organization; or

(c) shall not refuse to employ a person in employment by reason of the circumstance that the person, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization.

(6) An organization -

(a) shall not advise, encourage or incite an employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5);

(b) shall not take, or threaten to take, industrial action against an employer with intent to coerce the employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5); or

(c) shall not take, or threaten to take, any action having the effect, directly or indirectly, of prejudicing a person in his employment, being a person in respect of whom there is in force a certificate under sub-section (1), with the intent to coerce the person to join the organization.

(7) A contravention of sub-section (5) or (6) is an offence against that sub-section, punishable, upon conviction, by -

(a) where the action constituting the offence has continued for more than a day - a penalty not exceeding a fine of $400 for each day during which that action has continued; or

(b) in any other case - a penalty not exceeding a fine of $400.

(8) In any proceedings for an offence against sub-section (5) or

(6), if all the relevant facts and circumstances, other than 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.

(9) For the purposes of this section, an action taken by -

(a) the committee of management of an organization;

(b) the committee of management of a branch of an organization;

(c) an officer, employee or agent of an organization;

(d) a group of members of an organization; or

(e) a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organization,

shall be deemed to have been taken by the organization'." (at p399)

The Act No. 108 of 1977 added two new sections, s. 132A and s. 144A. It amended s. 47 by deleting the provision there contained about conscientious objection and adopting instead the machinery provided for conscientious objection under s. 144A. It also amended s. 132 by limiting the classes of independent contractors who could be members of an employee organization under the Act. (at p399)
Each of these amendments touches on the questions and each is relevant in considering the questions referred by the Industrial Registrar.
QUESTION (1). (at p399)
Section 144A (1) provides for certificates to be issued to a "person". "Person" is probably as wide a word as possible, but there is no reason to think that the legislature intended certificates to be sought by and issued to those who could have no possible use for them, such as persons with no intention of joining the workforce or indeed unable to do so. (at p399)
It is proper then to ascertain the real meaning of the word by having regard to other provisions in the statute. (at p399)
One effect of the issue of a certificate appears from ss. 47 and 144A. Section 47 deals with the subject matters of orders or awards of the Commonwealth Conciliation and Arbitration Commission providing for preference to the organizations or members specified in the award or order. An award or order can only be made in an industrial matter and consequently is limited to employees in their relationship with employers. The word "employees" and "employers" are here both used in the master and servant sense and clearly do not include independent contractors. (at p399)
A second effect of a certificate is provided by s. 144A and under this section, where a certificate is granted, an employee is given rights and protection against actions by either an employer or an organization. The first are dealt with by sub-s. (5) under which it is an offence for an employer to dismiss an employee or injure him in his employment or alter his position to his prejudice because he has a certificate and is not a member of an organization. Subsection (5) (b) makes it an offence for an employer to threaten to dismiss etc. such an employee with intent to coerce him to join an organization. Subsection (5) (c) makes it an offence to refuse to employ a person in employment if the person has a certificate and is not a member of an organization. The parallel subsection is sub-s. (6) which makes it an offence for an organization to advise etc. an employer to take action which would be a contravention of sub-s. (5) or to take or to threaten to take industrial action against an employer with the intent to coerce the employer to take action which would be a contravention of sub-s. (5). Subsection (6) (c), then, makes it an offence for an organization to take or threaten to take any action having the effect of prejudicing a person in his employment if he is the holder of a certificate and if the intent is to coerce him to join the organization. (at p400)
The effect of a certificate under each of the two relevant sections, s. 47 and s. 144A, is, then, to prohibit certain action against certain employees and to provide that awards of preference do not require an employer to give preference to members of an organization over a person who holds a certificate. In each case the rights of the person with which the section deals relate to him as an employee. (at p400)
This, we think, affords strong reason for reading down the word "person" appearing in s. 144A (1) to the classes in respect of whom the certificate can have some effect, i.e. employees. This view is reinforced by the provisions of s. 144A (2). In it the payment of a prescribed fee is made a condition precedent to the issue of a certificate and the Registrar determines the fee having regard to the annual subscriptions payable to what would have been the appropriate organization for the person, having regard to his past and likely future employment. Past employment must include present employment and it is only in the case of a person who is employed or is qualified for and seeking employment where the Registrar would be able to fix an appropriate fee. (at p400)
A further factor in determining the meaning of "person" comes from s. 132A, again inserted by Act No. 108 of 1977. It provides penalties against organizations if they advise etc. the taking of discriminatory action against an eligible person because he is not a member of the organization and penalties for taking or threatening to take industrial action against an employer intending to coerce the employer to take discriminatory action against an eligible person who is not a member of the organization and a further penalty for taking or threatening to take industrial action against an eligible person intending to coerce him to join the organization. (at p400)
Discriminatory action is defined and is a like sort of action to that dealt with in s. 144A, while an eligible person is defined in terms which make it clear that he is a class of self-employed person or independent contractor. It will be noted that these offences are not dependent on the holding by the eligible person of a certificate issued by the Registrar but arise independently of the certificate. (at p401)
It would be odd if the legislature having so provided in s. 132A then provided for a series of similar offences under s. 144A which would be committed only if the person were the holder of a certificate. (at p401)
It is true that, by the 1974 statute, provision was made for organizations to include certain independent contractors in addition to employees in the master and servant sense. By Act No. 108 of 1977 the class of independent contractors who could be covered was narrowed to those employed in certain States who for the purpose of the State industrial arbitration legislation were deemed to be employees. Neither the widening in the first place nor the reduction of that widening in the second place has any relevance to the provisions of s. 144A (1) or indeed to s. 47 and it is irrelevant for our present purposes. (at p401)
We conclude from these considerations that the word "person" in s. 144A does not include persons who are not employees unless they are usually employed as employees or qualified under s. 144 so to be employed and seeking employment. In particular it does not include self-employed persons or independent contractors unless they at the same time are qualified for and seeking employment as employees in an industry. (at p401)
We would therefore answer question (1) "No".
QUESTION (2) (a) AND (b). (at p401)
It was common ground that the historical origin of s. 47 was to be found in New South Wales legislation. Prior to 1953, the Industrial Arbitration Act, 1940-1951 (N.S.W.) gave power to tribunals to make an award prescribing that preference of employment should be given to members of any industrial union of employees specified in the relevant award. It was also provided that, where a tribunal so prescribed, it should also prescribe that the employer of any person to whom a certificate had been issued by the Registrar should be exempt from the provisions of the award prescribing preference. A person who objected on religious grounds to being a member of a union and satisfied the Registrar that his religious objections were genuine should, subject to compliance with certain conditions as to payment, be issued with a certificate exempting him from union membership. (at p401)
These provisions were further amended by an amending Act, No. 42 of 1953. So far as is relevant, this provided that absolute preference of employment should be given to members of the industrial union or unions engaged in a particular industry, and provided further that an adult person employed in the industry should become a financial member of an industrial union. Provision was made for the granting by the Industrial Registrar of certificates of exemption, on the ground of conscientious belief, to being a member of an industrial union of employees. Conscientious belief was defined as including any conscientious belief whether the grounds thereof are or are not of a religious character and whether the belief is or is not part of the doctrine of any religion. (at p402)
The Industrial Commission of New South Wales considered this section in Re Appeals from Registrar under Industrial Arbitration Act, 1940-1953, Section 129B (11). It then said:

"After having examined and considered the provisions of subsection (11) of section 129B and the submissions made by counsel, we have concluded that when entertaining an application made pursuant to paragraph (b) (ii) the Registrar's function is as follows:

"(1) To decide whether the grounds of conscientious belief on which the application is based are within or in accord with subsection (11). For example, we have held earlier in this judgment that paragraph (b) (i) thereof relates, and relates only, to a person who objects to being a member of any industrial union; a question for the Registrar, therefore, might be whether that is, in fact, the objection before him, or whether, in reality, the applicant's objection is restricted to being a member of a particular industrial union, to which he would be bound under the section to belong, because of a conscientious belief that that union does not properly or satisfactorily discharge its duties and obligations as an industrial union, or the like. In our view this would not be a relevant belief.

"(2) If a decision favourable to an applicant is reached under the preceding paragraph, then to decide whether the applicant honestly and in good faith holds the conscientious belief expressed. In short, whether 'his objections on the grounds of conscientious belief are genuine' (subsection (11) (b) (iii)). Or, to be more explicit, in discharge of the functions committed to him the Registrar is not concerned with and has no jurisdiction to pronounce upon the truth or falsity of the grounds of conscientious belief put forward to support the application. 'Conscience' is defined by the Oxford English Dictionary as 'an inward knowledge, consciousness; inmost thought, mind'. Every person has freedom to believe and the truth or falsity of his conscientious belief, apart from its genuiness, is not examinable. It is not, therefore, for the Registrar to say whether the conscientious belief held is orthodox or unorthodox, logically or morally tenable or not, or capable of being supported at all. Men may conscientiously believe what they cannot prove. They may not be put to the proof of their conscientious beliefs. "Freedom to believe must not be impaired except under the authority of positive law. No such provision, however, is contained in section 129B; indeed, as we have explained, the section upholds and preserves freedom of conscience. Where conscientious belief within the section is genuine it is absolute in relation to the subject with which the section deals. Thus the question for decision by the Registrar is and always remains; is the belief professed really held by the applicant in point of conscience - is it a genuine conscientious belief?"

(1954) 53 AR (NSW), at pp 80-81

. (at p403)

Question 2 (a) follows from the use in s. 144A (1) of the phrase "the person's conscientious beliefs do not allow the person to be a member of any association of a kind described in a paragraph of sub-section (1) of s. 132". Section 132 (1) contains a number of paragraphs. Paragraph (a) describes an association primarily of employers but which may include persons who are neither employers nor employees but who carry on a business in or in connexion with that industry. Paragraph (aa) describes an employer, not an association. Paragraph (b) describes an association of employees and persons who are employees and are qualified to be employed in or in connexion with the industry. Paragraph (c) describes an association of employees engaged in an industrial pursuit and persons who are employees and who are qualified to be engaged as employees in that industrial pursuit. Subsection (4) of the section then provides that in two sub-pars. of pars. (b) and (c) in the subsection, "employee" has an extended meaning to embrace persons deemed to be employees in various State legislation in the States of New South Wales, Queensland, South Australia or Western Australia. These persons appear in fact to be independent contractors. It is to be noted that this extended definition of employee applies only to the word "employee" as used in these two sub-paragraphs of two paragraphs of sub-s. (1). The extended meaning is not included in s. 144A. (at p403)
It may be said at once that it is not easy legislation to construe in a consistent manner, but it seems to us that a clue to the construction of the word "association" in s. 144A (1) lies in the balance of that section and the provisions of s. 132 (1). (at p403)
"Association" used in the subsection can mean both employer and employee associations. It is defined in s. 4 of the Act as meaning, except where otherwise clearly intended, any trade or other union or branch of any union or any association or body composed of or representative of employers or employees and for furthering or protecting the interests of employers or employees. (at p403)
The importance of the word in s. 144A is that it is used to describe the conscientious belief which must exist. It must be a belief which would not allow the person concerned to join an association of a kind described in a paragraph of s. 132 (1). The association may be of employers only or employees only or of employees and independent contractors or employers and independent contractors. It is not a belief which is limited to registered organizations but extends to associations which may or may not be able to be registered under the Act and which may or may not seek registration under the Act. (at p404)
The thing which all the associations referred to in s. 132 (1) and hence in s. 144A (1) have in common is a purpose to regulate industrial relations. Quite clearly there are persons, such as those adhering to the faith of the Exclusive Brethren, whose faith does not permit them to belong to any association. In addition, no doubt, there are others within the community who conscientiously believe that industrial relations are best settled by individual negotiation and bargaining between employer and employee and who would be unable by reason of that belief, if conscientious, to join either an employer or an employee organization. There are, we have no doubt, others in a not dissimilar position who hold a relevant conscientious belief about all relevant associations. (at p404)
The draftsman has been careful not to limit the conscientious belief to beliefs concerning organizations registered or able to be registered under the Act but has required a conscientious belief concerning all associations. (at p404)
It is trite that the functioning of the conciliation and arbitration system requires viable organizations of both employers and employees and the draftsman has given a right to protection and a right to equal preference in employment only to those whose conscientious beliefs would not permit the joining of any association. It is a limited right, limited in the manner of the New South Wales legislation. It is not a right which exists because there is a conscientious belief which would not allow the joining of one particular organization or association or which would not allow the joining of a particular organization for reasons which may exist only at a particular time and which may be quite ephemeral. It is something more which is required and that something more is a conscientious belief which does not allow of the joining of either employer or employee associations. (at p404)
The effect of a certificate is not that it gives exemption and protection as against one organization or one type of organization. It is notorious that while the general considerations of the statute contemplate that only one organization shall operate in each particular field of employment, this has not by any means been achieved and there are countless cases where two or more organizations may be able, by virtue of their conditions of eligibility rules, to enrol any particular class of employees. Moreover, the section speaks of a belief so far as associations are concerned. Associations are defined in the statute and there seems nothing in this section to require the adoption of a meaning other than the defined meaning. It would then be an odd circumstance if a belief concerning only organization A entitled a successful applicant to a certificate giving him rights under s. 47 or s. 144A against organization B even though it may operate in entirely different fields. (at p405)
One feature which has been driven home to us in recent cases is the extreme volatility of the Australian workforce and it is by now, in many areas of employment, common for employers to have over fifty per cent turnover of labour in any one year. (at p405)
To take examples given to us during the course of the hearing, it would be an odd result if, because a man had a conscientious belief which did not allow him to join a union, some of whose members were engaged in the manufacture of munitions, he by reason of that conscientious belief gains a right to a preference in the meat industry and gains also a right not to be forced into a union by employer or organization in the coal industry. Equally it would be an odd result if an employee, taking the view that what was good enough for Jack was too good for his master, had a conscientious belief which would not allow him to be a member of an employers' organization and thereby was afforded the protection of the sections in his capacity of, although he was and intended to remain, an employee. (at p405)
No doubt it is no easy task which is imposed on the Registrar. In some cases, as in the case of the Exclusive Brethren, who were represented at the hearing, their religious doctrine might make their conscientious belief easy to determine, but in others his decision will involve a careful consideration of the material placed before him. No doubt it is for the purpose of dealing with these and other like applications that reg. 141 gives the Registrar power, inter alia, to call witnesses before him and take evidence on oath. We agree with the view expressed during the course of the hearing that the inquiry before the Registrar would necessarily be conducted in accordance with the rules of natural justice and would involve giving notice and an opportunity to be heard to organizations likely to be affected. (at p405)
Having regard to the whole scope of s. 144A, we think that the intention is that while the issue of certificates is limited to employees or persons qualified to be employees, that the conscientious belief of such a person must be such that it does not allow him to be a member of either an employer or employee association. Put in other words, just as exemption from military service was dependent upon conscientious beliefs which did not allow the performance of any form of military service, so the protection of s. 144A is available to employees not because of the mere existence of a liking or disliking of a union but only if there is a genuine conscientious belief which prevents him joining any industrial organization. (at p405)
We think the observations on the type of conscientious belief expressed in the cases dealing with military service are apposite here. In The Queen v. District Court of the Northern District of the State of Queensland; Ex parte Thompson (1968) 118 CLR 488 , Barwick C.J. in the course of his judgment said:

"First of all, the section speaks of a present conscientious belief. A conscientious belief because it is a matter of conscience with its compulsive quality is durable though not unchangeable. The use of the expression 'does not allow' in the section reflects the depth and nature of the required conviction. The inclusion of non-combatant service in the exemption indicates the wide sweep which the conscientious objection must have. Such a belief must be carefully distinguished from mere intellectual persuasion which by its very nature may be transient.

"As I have already indicated, in my opinion, 'in any form of military service' means 'in military service at all'. Consequently, the language of the section, in my opinion, requires that the present conscientious belief must be all-embracing in relation to soldiering including soldiering in any capacity in the defence, or in aid of the defence, of this country in any circumstances. It must be, in my opinion, an objection based on the intrinsic quality of military service and not upon particular targets, purposes, or causes, to which it is or is likely to be directed. Also, in my opinion, the section requires the conviction, viewed as of present, to be unlimited in relation to time. To my mind, the section calls for the existence of a present compulsive and complete conscientious aversion to military service of any kind including non-combatant service at any time and in any circumstances, even in the country's defence in the direst circumstances.

"Though durability is in general a quality of the demands of conscience, conscientious beliefs as I have said may change: and for such change the Act makes allowance and provision. But that such beliefs may change does not, to my mind, impinge upon the proposition that the section requires a present conscientious belief which presently does not allow of participation in military service of any kind at any time"

(1968) 118 CLR, at pp 493-499

. (at p406)

Here too the section speaks of a present conscientious belief and the fact that the section had its origin, as did the legislation dealing with military service, in provisions requiring the existence of a conscientious belief founded in religious grounds indicates the depth of conviction which is required. It involves an innate conviction of what is morally right and morally wrong. (at p406)
In our view, then, the applicant's conscientious beliefs must be such that they do not allow him to be a member of all associations of a kind described in the subsection. (at p406)
As to the meaning of the word "associations" in the context, we think it means associations as defined in s. 4 of the Act. That defined meaning is to apply unless the context otherwise requires. There appears nothing in the context so to require. (at p407)
We have already dealt with this in considering our answer to the first part of Question 2 and we would answer it by saying that "associations" means associations as defined in the Act. (at p407)
The alternative views are that the word "association" means an organization or a relevant association or organization in the sense that it was one the applicant for a certificate was eligible to join but the legislature deliberately used a word defined in the definition section of the Act although the word "organization" is used in the same amending statute dealing with the same subject matter as in s. 132A. Moreover, a deliberate change was made in the terminology in the amendment made to s. 47. That section had provided for a certificate to be issued to a person who satisfied the Registrar that his conscientious beliefs did not allow him to be a member of the organization which had obtained an award giving preference to its members. In these circumstances there seems to us nothing which otherwise clearly intends that the word "association" should not be given its defined meaning. (at p407)
In our view, then, Question 2 (b) should be answered by saying that the word "associations" means associations as defined in the Act. (at p407)
For the reasons set out above we think the questions referred by the Industrial Registrar should be answered as follows:
(1) No.
(2) (a) The subsection requires that an applicant person's conscientious beliefs do not allow that person to be a member of all associations described in sub-s. 132 (1); (b) The word "associations" means associations as defined in the Act. (at p407)

ORDER

[1978] FCA 91

02 NOVEMBER 1978