Pitfield v Franki

[1970] HCA 37

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Owen and Walsh JJ.

PITFIELD v. FRANKI

(1970) 123 CLR 448

9 October 1970

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Registration of organizations—What associations may be registered—Employees "in or in connexion with any industry"—Employees "engaged in an industrial pursuit or pursuits"—Employees of fire fighting authorities—Remedy when invalid registration—Certiorari or prohibition—Conciliation and Arbitration Act 1904-1969 (Cth), ss. 4 "Industry", 132*.

Decisions

October 9.
The following written judgements were delivered:-
BARWICK CJ. This is a motion upon notice for a writ of prohibition to restrain the respondents from further proceeding on the registration under the Conciliation and Arbitration Act 1904- 1969 (Cth) (the Act) of The United Firefighters' Union (the Union) as an organization of employees and the confirmation by the Conciliation and Arbitration Commission (the Commission) of the decision of the Deputy Industrial Registrar so to register the Union or alternatively for a writ of certiorari to remove the decision of the Deputy Industrial Registrar and that of the Commission into this Court for the purpose of each being quashed. The ground of the application is a lack of authority to register the Union as an organization of employees under the Act for the reason that the Union was not at any material time "an association of not less than 100 employees in or in connexion with any industry" or "engaged in any industrial pursuit" within the meaning of s. 132 of the Act. The prosecutors are the Chief Officers of the Country Fire Authority, a body constituted under the Country Fire Authority Act 1958 of the State of Victoria; the Country Fire Authority of Victoria; the Metropolitan Fire Brigades Board, Melbourne; the Metropolitan Fire Brigades Board, Brisbane; the Launceston Fire Brigade Board; the Hobart Fire Brigades Board; the Fire Brigades Board, Adelaide; the Board of Fire Commissioners of New South Wales and the Western Australia Fire Brigades Board to all of whom I shall refer as the fire fighting authorities. (at p451)

2. The respondents in addition to the Deputy President of the Commission who confirmed the decision to register the Union and the Deputy Industrial Registrar are the Union and the two officers of the Union who made the application for its registration as an organization of employees. (at p451)

3. Section 132 of the Act is as follows:

"132. - (1) Any of the following associations or person may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization: - (a) Any association of employees in or in connexion with any industry, who have in the aggregate, or any employer who has, throughout the six months next preceding the application for registration, employed on an average taken per month not less than one hundred employees in that industry : Provided that an association of employers may be registered as an organization notwithstanding that it contains, in addition to employers in or in connexion with the industry, other persons, whether employers in the industry or not, who are officers of the association and have been admitted as members of the association ;

(b) Any association of not less than one hundred employees in or in connexion with any industry, together with other persons, whether employees in the industry or not, who are officers of the association and have been admitted as members of the association ; and

(c) Any association of not less than one hundred employees engaged in an industrial pursuit or pursuits, together with other persons, whether employees engaged in an industrial pursuit or pursuits or not, who are officers of the association and have been admitted as members of the association. (2) The conditions to be complied with by associations so applying for registration and by organizations shall be as prescribed. (3) Upon registration, the association shall become and be an organization." (at p452)

4. On 4th September 1964 the Industrial Registrar gave notice that an application had been made to him under the Act for the registration of the Union as an organization of employees in or in connexion "with the industry of fire prevention, suppression and extinguishment". The fire fighting authorities duly lodged objections to this registration. (at p452)

5. After amendment of the rules of the Union by leave of the Deputy Industrial Registrar the rule of the Union governing the admission of members provided as follows:

"7. Eligibility (a) The membership of the Union is unlimited in number. (b) Any person who is : (i) (A) employed, or (B) usually employed -

in full time employment in or in connection with the prevention, suppression or extinguishment of fires ; (1) by civil brigades, boards or authorities in any rank, grade or classification of firefighter, fireman, special service firefighter, special service fireman, service firefighter, service fireman, radio-operator, hose maker and repairer, a member of a service maintenance section, regional fire officer, chief fire officer, deputy chief fire officer, fire officer, station officer or in any employment the duties of which are not materially different from the duties of one of these employments ;

(2) by the Commonwealth, in any rank, grade or classification of airport firefighter, airport fireman, airport fire officer, superintendent of fire services, inspector of fire services, regional fire officer, principal fire officer, fire protection officer, chief fire protection officer, chief fire office, deputy chief fire officer, fire officer or in any employment the duties of which are not materially different from the duties of one of these employments ;

(3) in private industry, in any rank, grade or classification of industrial firefighter or industrial fireman or in any employment the duties of which are not materially different from the duties of one of these employments ;

(4) by the Commonwealth Hostels Limited in any rank, grade or classification of fire officer or fire marshall or in any employment the duties of which are not materially different from the duties of one of these employments ;

(ii) elected as an officer of the Union is entitled to become a member of the Union : Provided that the Union may at its discretion decline to admit to membership any person included within Clause (i) of this sub-rule : (A) who does not make application as required by these Rules or

(B) who does not pay the amount properly payable in respect of his admission to membership or

(C) who is of general bad character.

(c) Without implying that they would otherwise be included within the earlier provisions of this Rule, the following persons are not entitled to become members of the Union ; (i) employees of the Melbourne Harbour Trust engaged upon safety and emergency services ;

(ii) persons employed as watchmen ; (iii) members of the permanent defence of the Commonwealth

(d) A person who is for the time being employed (other than in an acting capacity) as the Chief Officer or the next most senior fire officer by the Metropolitan Fire Brigades Board (Melbourne), the Country Fire Authority (Victoria), the Board of Fire Commissioners of New South Wales, the Metropolitan Fire Brigades Board (Brisbane), the Fire Brigades Board (Adelaide), the Western Australian Fire Brigades Board, the Hobart Fire Brigades Board or the Launceston Fire Brigade Board - (i) shall not be entitled to become a member of the Union ;

(ii) shall, if previously a member of the Union, upon becoming so employed cease to be a member of the Union but shall remain liable to pay all amounts which become due from him to the Union while he was a member." (at p454)

6. There were not at any relevant time 100 members of the Union who were not employees of one or other of the fire fighting authorities. There were members of the Union who were so employed, some as staff officers and some as ordinary fire officers. Unless all the members employed by the fire fighting authorities are employees in or in connexion with an industry or engaged in an industrial pursuit within the meaning and operation of s. 132, the Union was not at the relevant time an association of employees which could properly be registered as an organization of employees for the purposes of the Act. (at p454)

7. The substantial question therefore is whether the men and officers employed by the fire fighting authorities are employees in or in connexion with the industry or engaged in an industrial pursuit as the words "industry" and "industrial pursuit" are to be understood in the Act. There is a separate question whether in the circumstances a writ of prohibition or a writ of certiorari can be issued to the respondents in connexion with the registration of the Union as an organization of employees under the Act. (at p454)

8. This Court has seldom had occasion to consider the eligibility of an association to be registered under s. 132 of the Act as an organization. In no case has the meaning of the presently critical words of s. 132 in any of its previous forms received exhaustive consideration. For some discussion of an earlier form of s. 132 see Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia (1944) 68 CLR 628 . The constitutional validity of the provisions for the registration and incorporation of associations as organizations for the purposes of the Act was established in Jumbunna Coal Mine (No Liability) v. Victorian Coal Miners' Association (1908) 6 CLR 309 . The power to appoint an Industrial Registrar and Deputy Industrial Registrar is found in s. 127 of the Act. Statutory rules made under s. 198 of the Act provide for the making of applications for registration of associations as organizations for the purposes of the Act and for the registration to be affected by the Industrial Registrar or by a Deputy Industrial Registrar. (at p454)

9. In each case decided by this Court in which the question whether an industrial dispute relevantly existed between an organization of employers and an organization of employees, the organization of employees has been a registered organization and no question as to the validity of that registration has had to be decided. Higgins J. observed upon such a circumstance in Federated Municipal and Shire Council Employees' Union v. Melbourne Corporation (1919) 26 CLR 508, at pp 576-577 . Further, the Court in those cases has treated as one expression and not as separate words, the words "industrial dispute" as found in the Constitution and in the Act. See for example Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517, at p 529 per Higgins J. However, in deciding whether a particular dispute was within the ambit of the Constitution and the Act, the Court has necessarily considered aspects of industry relevant for resolution of the case under consideration. Accordingly, expressions of judicial opinion in those cases are of significance and of some assistance in the resolution of the present problem. (at p455)

10. I should first summarize what I am able to draw in this connexion from those cases. It seems to me that no definition by the Court of an industrial pursuit emerges from them: and certainly none of "industry". It can be seen I think that the width which Sir Samuel Griffith gave to the expression "industrial dispute" in Jumbunna Coal Mine (No Liability) v. Victorian Coal Union Association (1908) 6 CLR 309, at p 333 has not been adopted whilst on the other hand the denotation of an industrial dispute has not been confined so narrowly as Gavan Duffy J. thought it should in Federated Municipal and Shire Council Employees' Union v. Melbourne Corporation (1919) 26 CLR, at p 584 . See Federated State School Teachers' Association of Australia v. State of Victoria (1929) 41 CLR 569, at p 574 . Isaacs and Rich JJ. in Federated Municipal and Shire Council Employees' Union v. Melbourne Corporation (1919) 26 CLR 508 gave a definition of industry when explaining the concept of industrial dispute. They said (1919) 26 CLR, at pp 554-555 :

"The concept may be thus formulated: - Industrial disputes occur when, in relation to operations in which capital and labour are contributed in co-operation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co-operation. This formula excludes the two extreme contentions of the claimant and the respondents respectively. It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the co-operation of capital and labour and do not come within the sphere of industrialism. It includes, where the necessary co-operation exists, disputes between employers and employees, employees and employees, and employers and employers. It implies that 'industry', to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense, as if it alone effected the result, but it must be acting and be considered in association with its co-operator 'capital' in some form so that the result is, in a sense, the outcome of their combined efforts. It also implies that 'an industry', in the relevant sense, is not confined to a single enterprise, but means a class of operations in which all persons, employers and employees, are engaged on the same field of industry - not necessarily of commerce - provided by the society in which they exist."

But my reading of the cases does not lead me to think that this definition has gained general acceptance as an exhaustive exposition of the meaning of the word "industry" in the relevant connexion. It seems to have been decided however that the performance of manual labour in any employment is prima facie an industrial activity. But there is no precise definition by the Court of manual labour though Isaacs and Rich JJ. in Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 called attention to the distinction drawn in the cases decided in English courts which they there cited between manual work and manual labour (1923) 33 CLR, at pp 525-526 . (at p456)

11. It has been decided that the industrial quality of a dispute may derive either from the industrial nature of the activity carried on by the employer or from the essentially industrial character of the work performed or to be performed by the employee. This conclusion has its counterpart in s. 132 (1) in the dichotomy of sub-ss. (b) and (c). An employment may be relevantly industrial though it does not involve the performance of manual labour or the production, handling or transportation of any material thing. Though the manufacture and distribution of goods is at the heart of industry, the provision of services essential to such industrial activity may constitute an industry for the purposes of the Constitution and of the Act. See for example Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 . But teaching in the employ of a State is not in itself an industrial activity, nor is the State engaged in industry in carrying on its Department of Education. On the other hand it would seem that those who conduct a school for profit may be engaged in industry so that their teacher employees, though school teaching may not be essentially industrial, may be engaged in industry because of the industrial nature of the employer's business. See Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569 . Cf. Ex parte Professional Engineers' Association (1959) 107 CLR 208, at p 237 , per Dixon C.J. Again, the work of a clerk is not necessarily industrial but may be so when the clerk is employed by an employer who is engaged in industry. See Proprietors of The Daily News Ltd. v. Australian Journalists' Association (1920) 27 CLR 532 . On the other hand, in Ex parte Professional Engineers' Association (1959) 107 CLR 208 , it seems to have been decided that whilst not necessarily so, at least prima facie, the work of the professional engineers with whom that case was concerned was of an industrial character. But the question whether the particular work of some professional engineers in government employ was in fact of an industrial nature was left for further examination (see for example (1959) 107 CLR, at p 241 ). If in fact the professional engineer's work was of that nature, employment by government would not take away jurisdiction to resolve a dispute as to the terms and conditions of the employment of such an engineer. ". . . It appears to me that it is firmly established that given an industrial dispute to which the jurisdiction attaches there is no constitutional reason why States may not be bound with respect to the employment of persons within the ambit of the dispute" per Dixon C.J. (1959) 107 CLR, at p 240 . The argument for the States in that case is thus seen as an attempt to reassert an immunity long since denied. See Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508 and Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 . In my opinion, nothing more which is relevant to this case was decided in Ex parte Professional Engineers' Association (1959) 107 CLR 208 . (at p457)

12. As I have already indicated, s. 132 (1) in relation to associations of employees effects a dichotomy between employees who are employed "in or in connexion with any industry" and those who are engaged "in an industrial pursuit". The first question therefore in this matter is whether the fire fighting authorities carry on an industry. If they do then the officers and men in their employ in connexion with their fire fighting activity will be employees in or in connexion with any industry within s. 132 (1) (b). In short, they will be in a like case with the employees of industrial concerns who have fire fighting or fire prevention duties in and around the industrial plant of the employer. (at p457)

13. But I am clearly of opinion that the fire fighting authorities do not carry on and are not engaged in any industry. If, as was suggested, they sell some fire fighting or fire prevention apparatus that enterprise is so peripheral to their principal activities as not to effect the substantial nature of the operations which they carry on. The authorities are statutory bodies carrying out statutory duties in the interests of the public at large. Though industrial plants fall within the purview of those duties, it cannot properly be said, in my opinion, that the services of the fire fighting authorities are incidental to the industrial activity of the industrial section of the community in the same sense that banking and insurance have been said to be industrial. They are certainly not necessarily or indispensably so, however important the protection of industrial assets may be. It cannot properly be said of them "that they are indispensable portions of the general industrial mechanism" per Isaacs and Rich JJ. in Australian Insurance Staffs' and Bank Officials' Case (1923) 33 CLR, at p 527 . Cf. also Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR, at p 592 , per Rich J. (at p458)

14. Of course, there is nothing essentially governmental in the provision of fire fighting services. No doubt they could be provided by non-governmental bodies which if they were to provide them as an organized profit-making business might possibly be held to be engaged in industry. But they are not so provided. So far as this matter is concerned, it seems to me irrelevant that the services rendered by the fire fighting authorities are not essentially "governmental". In fact however the operations performed by the fire fighting authorities are part of the services rendered by or on behalf of government to the community as a whole. In my opinion, the fire fighting authorities are not engaged in industry. It follows that the officers and men employed by the fire fighting authorities are not employees falling within s. 132 (1) (b). (at p458)

15. There then arises the further question which I have found more difficult of resolution, namely, is fire fighting as it is described in the papers in this case an industrial pursuit within the meaning of s. 132 (1) (c). First, in my opinion, the performance of the duties of the fire officer does not constitute manual labour so that for that reason alone it can be said that the work of the fire officer is industrial. Clearly those duties do require the performance of some manual work but the knowledge, skill and exercise of judgment required of the fire officer, in my opinion, separate his work from that of the manual labourer around whose activities the decision of the Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508 centred. Second, the work of the fire fighter is not productive of commodities nor is it instrumental in their distribution. Not can it properly be said, in my opinion, that the services rendered by the fire fighter are an incident of any industrial activity, even though the performance of fire fighting services may be beneficial to industry and in modern times may be conducive to the successful continuance of industral activity. The work of the fire brigade is perhaps unique as an occupation though if analogy were necessary, which, in my opinion, it is not, the work of the police officer might approximate it in nature. The task is the prevention and suppression of fire of any description, be it in open ground as in controlling a bushfire, or in buildings such as houses or factories. After due consideration I am unable consistently with the expression of the Court's opinion in the cases I have cited, particularly Federated School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569 to conclude that this work is essentially or intrinsically industrial. Consequently, in my opinion, the work of the fire fighter in the employ of any of the fire fighting authorities does not constitute an industrial pursuit. The work of the staff officer employed by the fire fighting authorities is more clearly in itself not industrial work. But the question whether, if the staff officers are not engaged in an industrial pursuit, there would be an insufficient number of employees to qualify the Union for registration, even if the ordinary fire officers were engaged in an industrial pursuit was not examined in the argument and I base nothing upon my opinion as to the non-industrial nature of the staff officers' work. (at p459)

16. In my opinion, the fire authorities not being engaged in industry neither the staff officers nor the ordinary fire officers are employees in or in connexion with industry or engaged in an industrial pursuit. The association therefore, in my opinion, was not an association qualified to be registered under the Act as an organization of employees. (at p459)

17. There remains the question whether prohibition or certiorari is available in this case. It is quite clear that the Deputy Industrial Registrar in deciding whether or not to register an association as an organization for the purposes of the Act is bound to act judicially. In addition, his decision that the association be registered is subject to appeal and in this case was affirmed by the Commission. There is therefore no substance in the contention that the appropriate prerogative writ cannot issue either to restrain further action upon or to quash the registration. There was some discussion on the hearing of the motion as to whether anything remained to be done with respect to the registration so as to make prohibition appropriate but I find no need to enter on that question. On the view I have taken there was no authority in the Commission to effect the registration. Lack of that authority would ground equally prohibition or certiorari dependent upon the state of affairs when the prerogative writ was sought. Here, in my opinion, the proper writ to be issued is a writ of certiorari to bring up the registration for the purpose of it being quashed for want of authority to have made it. (at p460)

18. For these reasons, I am of opinion that the application for a writ of certiorari should be granted. The respondents other than the Deputy President and the Deputy Industrial Registrar should pay the prosecutors' costs. (at p460)

McTIERNAN J. In my opinion the application for a writ of certiorari should be granted. (at p460)

2. The material statutory provisions are the definitions of "industry" in s. 4, and s. 132 of the Conciliation and Arbitration Act 1904-1969. The ground upon which the application for the writ proceeded was that persons employed by the prosecutors "in or in connexion with the prevention, suppression or extinguishment of fires are not employees in or in connexion with any industry or employees engaged in an industrial pursuit or pursuits within the meaning of s. 132 of the Conciliation and Arbitration Act 1904 as amended". (at p460)

3. The definition of "industry" in s.4 (1) of the Act is in substance the definition inserted in 1911 following the decision of the Court in Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. (1911) 12 CLR 398 . Section 132 (1) (c) was inserted in 1915 following the decision of Powers J. as Deputy President of the Commonwealth Court of Conciliation and Arbitration in Australian Workers' Union; Ex parte Killen (1915) 9 CAR 33 . (See also Federal Palace Hotel Ltd. v. Federated Liquor and Allied Trades Employees' Union of Australasia (1918) 12 CAR 652, at p 656 .) It follows from these provisions that The United Firefighters' Union is an association which is capable of registration by virtue of s. 132 (1) if it can be said that the employers of persons eligible to join the association are engaged in industry; for it is a consequence of this that their employees are persons of a class to which s. 132 (1) (b) is applicable. Alternatively the Union is capable of registration by virtue of s. 132 (1) if it can be said that the persons eligible for membership are employees "engaged in an industrial pursuit or pursuits" to whom s. 132 (1) (c) applies. This latter question can be determined "entirely disregarding the class of industrial operations in which they and their employers are mutually engaged": Melbourne and Metropolitan Tramways Board v. Municipal Officer' Association of Australia (1944) 68 CLR, at p 639 , per Starke J. (at p461)

4. I shall first deal with the position of the prosecutors as employers. A large part of the affidavit evidence before the Court was concerned with their trading activities. Fire brigades sell and install fire alarms and fire warning systems. It would seem that this evidence was adduced in an attempt to show that these fire brigades were "an industry organized as an undertaking for some productive purpose" in order that the subsequent words of Dixon C.J. in the Professional Engineers' Case might be applicable:

"Then whatever the capacity in which a man is employed, however remote he might be from the performance of manual work or labour, he has been regarded as capable of being involved in an 'industrial' dispute." (1959) 107 CLR, at p 236

Although there may be cases in which a decision is difficult on that criterion, it cannot, in my opinion, be said that the fire brigades are "organized as an undertaking" for producing fire alarms. Such activity is very much subordinate to the obvious main purpose of "prevention, suppression or extinguishment of fires". The statement in argument in the Professional Engineers' Case that "Once it is shown that the various commissions and bodies are carrying out trading that is the end of the question . . . " (1959) 107 CLR, at p 214 is far too wide. (at p461)

5. It also appears in evidence that the first fire brigades in Australia were run by private enterprise, namely insurance companies. It might therefore be said that fire brigades are not to be regarded as in the same category as the police force, which has not a similar background. But the small insurance company brigade is as different from the present statutory fire brigade as the private schoolmaster is different from the State Education Department: cf. Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR, at p 575 . Again, it might be said that fire brigade services are a necessary adjunct of the business of fire insurance which is regarded as industry (Insurance Staffs' Case (1923) 33 CLR 517 ). Moreover, to a large extent, the finance of fire brigades is supplied by insurance companies. These are factors of some weight in considering whether the fire brigades are an industry, but I do not think they are decisive factors. The word "industry" does not cover the same area as the concept of the total economy of a country. Increased understanding of the economic framework of society draws attention to the interdependence of many instrumentalities in the government controlled and private sectors, as Isaacs J. pointed out in the State School Teachers' Case (1929) 41 CLR, at p 576 et seq . The Court however is not free to determine the present matter solely upon economic principles, but must interpret the words as used in the Act before it. The numerous tests which have been formulated and which are conveniently set out by counsel for the professional engineers in argument in the Professional Engineers' Case (1959) 107 CLR, at pp 215-216 , must never be used to displace the words of the statute which it is the duty of the Court to interpret. In my opinion, after consideration of the previous decisions of the Court on the question, it would be an unwarranted extension of the connotation of industry to hold that the prosecutors constitute an "industry" as that word is used in s. 4 (1) of the Act, and consequently that employees in fire brigades are employees "in or in connexion with any industry" and thus comply with a requirement of s. 132 (1) (b). (at p462)

6. It is necessary therefore to consider whether fire fighters eligible to join The United Firefighters' Union are "employees engaged in an industrial pursuit or pursuits", the criterion used in s. 132 (1) (c). In my opinion, upon the evidence before the Court, fire fighters are a single vocational group. The only differentiation between men is by seniority or rank, apart from a small group of "special service firemen" who perform minor risks not given to other employees. As a matter of tradition and practice all men in the brigades, including the senior officers, actually fight fires. Of course, while at their fire stations the senior men and officers will be engaged more in administrative and supervisory work, but in the central function of their work, the fighting of fires, tasks are allotted as the need arises, and not because of any permanent specialization of function. I do not think that it would be incorrect to describe this work simply as manual. Dixon C.J. said in the Professional Engineers' Case:

"If the dispute is about employment to do work of a manual character always it has been regarded as typically industrial and I doubt if it was ever considered necessary to go further." (1959) 107 CLR, at p 236

The present case however I regard as one in which the manual character of the work is an insufffiient criterion. The fireman is subject to a strict disciplinary code. The whole organization of the men is comparable to military organization. In some States medals are granted for long service and bravery. The senior officer present at a fire has powers bestowed upon him by statute which would appear to be quite unique in peace time : see e.g. Metropolitan Fire Brigades Act 1958 (Vict.), s. 33 (c) (d) (f) (g); s. 61 (1). He may, in certain circumstances, enter premises, destroy buildings, close streets and have people removed. Police at the scene of a fire in most States are subordinate to him. In summary, firemen at a fire resemble a special form of police, or, as the term brigade indicates, a special organization of a military nature to fight fires. Having regard to such considerations I am unable to say that these fire brigade employees are "employees engaged in an industrial pursuit". I am also of opinion that they cannot bring their organization within s. 132 (1) (b) by reason of compliance with par. (b) of the definition of "industry" in s. 4 (1). That paragraph cannot, in my opinion, be construed so as to leave out of account altogether any concept of industry in the employees' calling. That being so, the matters discussed above are also relevant in the interpretation of that paragraph. (at p463)

7. The conclusion to which I have come is that The United Firefighters' Union is not capable of registration under s. 132 of the Act. There is in existence, however, a certificate of registration signed by "C. F. Lansbury, Deputy Industrial Registrar". Attached to the certificate are the conditions of eligibility for membership of the organization. This certificate ought not to stand as if it were validly in force. The proposed writs are addressed to Franki J. who confirmed the registration by the Deputy Industrial Registrar, C. F. Lansbury, the Deputy Industrial Registrar who registered the Union, W.M. Webber and J.W. Lambert who were the officers of the association required to declare the application for registration by reason of reg. 116 of the Conciliation and Arbitration Regulations, and the Union itself. Prohibition or alternatively certiorari is sought. I think that the proper remedy is certiorari. In my opinion the Court has power to grant that remedy : Reg. v. District Court of Northern District of Queensland ; Ex parte Thompson (1969) 118 CLR 488, at p 496 . The situation cannot be likened to an application for a writ of prohibition to restrain further proceeding on an award, addressed to the maker of that award : cf. R. v. Hibble ; Ex parte Broken Hill Proprietary Co. Ltd. (1920) 28 CLR 456 . See also R. v. Connell ; Ex parte Hetton Bellbird Collieries Ltd. (1944) 69 CLR 407, at pp 442-443 . Registration, if valid, is complete without further action. (at p463)

8. In view of the nature of the case and the relationship between the parties I would make no order as to costs. (at p464)

MENZIES J. This is an application made to the Full Court by the direction of Kitto J. for prohibition or certiorari to quash a decision of the Deputy Industrial Registrar, confirmed by Franki J. as Deputy President of the Commonwealth Conciliation and Arbitration Commission, granting an application for the registration of an association called the "United Firefighters' Union" as an organization under the Conciliation and Arbitration Act. The prosecutors unsuccessfully opposed the original application and their appeal against the decision of the Deputy Industrial Registrar failed. (at p464)

2. The registration of organizations is authorized by Pt VIII of the Conciliation and Arbitration Act, and the most relevant provisions here are s. 132 (1) (b) and (c) which are as follows:

"132. (1) Any of the following associations or persons may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization : - . . . . . . (b) Any association of not less than one hundred employees in or in connexion with any industry, together with other persons, whether employees in the industry or not, who are officers of the association and have been admitted as members of the association ; and

(c) Any association of not less than one hundred employees engaged in an industrial pursuit or pursuits, together with other persons, whether employees engaged in an industrial pursuit or pursuits or not, who are officers of the association and have been admitted as members of the association." (at p464)

3. The resolution of what seems to me the critical question, viz. whether the association consisted of not less than one hundred employees "in or in connexion with any industry" or "engaged in an industrial pursuit or pursuits" depends upon a decision whether firefighters who are employees fall within one or other of the foregoing categories. Although it appears that before Franki J. there was no argument that employees not employed "in or in connexion with any industry" may nevertheless be "engaged in an industrial pursuit or pursuits", it seems to me that the descriptions to be found in (b) and (c) are not identical in meaning and that it is possible to find employees within one description although outside the other, notwithstanding that there may, of course, be overlapping. Indeed, if this were not the case there would be no point in enacting both (b) and (c). As I read s. 132 (1) (b) it brings into consideration the undertaking of the employers, whereas as I read s. 132 (1) (c) it leaves the undertaking of employers entirely out of account. (at p464)

4. It appears to me that s. 132 (1) (b), by insisting upon employment "in or in connexion with" an industry, concentrates attention upon the industry in which the employees are engaged. The provision relates to "any industyry" and whether or not employees are employed in an industry cannot, I think, be determined without reference to the undertakings of employers, while recognizing, of course, that many employers are engaged in a number of industries. Accordingly, it is necessary to consider the application of both (b) and (c) of s. 132 (1). (at p465)

5. In the consideration of s. 132 (1) (b) I have found it necessary to examine the undertakings of the prosecutors who employ fire fighters. I have done this with the assistance of tables prepared by counsel, but, because to record the results of my examination in every case is unnecessary and would be wearisome, I have chosen to describe briefly, and as an illustration of what I find to be common characteristics, the undertaking of one of the prosecutors, namely the Country Fire Authority of Victoria. (at p465)

6. This Authority is constituted by an Act of Parliament - the Country Fire Authority Act - which deals generally with the prevention and control of fires in country areas of the State of Victoria. Its provisions cover fire prevention by the prohibition of the lighting of fires in fire danger periods, the establishment of regional and local advisory committees, the provision of compensation for casual fire fighters out of a fund in the Treasury and a large number of other matters as well as the incorporation of the Country Fire Authority. This Authority is constituted and consists of members appointed by the Governor in Council. Its proceedings are controlled by the Act. It does not carry on trade or manufacture and its principal concern is the formation of fire brigades and to control and assist them in fire fighting. In general the control of the prevention and suppression of fires is vested in the authority and for this purpose it has the duty of taking whatever steps are necessary to protect life and property in the case of fire. It may proclaim fire control regions and districts and it may appoint officers. Brigades and officers and members of brigades are under the order and control of the Chief Officer. The expenditure of the Authority is met by the Treasury and by the fire insurance companies under statutory obligation as well as by borrowing under statutory authority. (at p465)

7. The review which I have made demonstrates, I think, that the Authority is not engaged in industry, even when understanding the word "industry" in its broadest permissible sense. (at p465)

8. Having made this review I turn to the question whether employees of such fire authorities are employed in or in connexion with an industry. I do not think they are. They are employed by an authority to carry out its statutory duties which, in my estimation, have no relation whatever to industry. It may be that fire fighters would fall within s. 132 (1) (b) if it were to be determined that they fell within s. 132 (1) (c) but this is unimportant for, if they fall within s. 132 (1) (b), that of itself makes an association of the requisite number eligible for registration as an organization. (at p466)

9. I turn, therefore, to s. 132 (1) (c) and state immediately that, after some hesitation, I have reached the conclusion that fire fighters employed by the fire authorities who are prosecutors are not engaged in an industrial pursuit. (at p466)

10. Of course, it is not every way in which a man earns his living that is industrial, although, for the purposes of the Act, so widely has the word "industrial" been understood that some associations have been regarded as industrial that do not, at first sight, appear to fall within that description. It is, of course, well established that an association of professional men may be registered under the Act, but I am disposed to think that this is so because some professional men are employed in an industry or in connexion with an industry rather than because they are engaged in what is an industrial pursuit. Lawyers employed in industry, like professional engineers employed in industry, could, no doubt, form an association that would be registrable. Whether lawyers employed in the offices of solicitors practising their profession could do so would, I think, be another matter. Teachers provide a special problem which I need not attempt to solve here because to do so would lead to no conclusion in this case. A scholar employed in a university would, I think, fall outside the ordinary conception of an employee engaged in an industrial pursuit, although a tradesman employed by a university would fall within that description. Policemen do not, I think, according to the common usage of words "engage in industrial pursuit"; they, as an organized body subject to discipline, enforce law and order in the community. Furthermore I do not think that even a mercenary soldier could be said to be engaged in an industrial pursuit. He would be employed to fight. (at p466)

11. I find the closest analogy, between fire fighters and the groups of employees I have been discussing, to be with members of a police force. Fire fighters, organized into brigades, are employed to protect life and property from fire. They are not engaged in an industrial pursuit. A brigade could not, I think, be accurately described as an association of employees engaged in an industrial pursuit. (at p467)

12. In the cases it has been recognized that the doing of manual labour points towards a classification as industrial. That consideration does not help me here. A substantial part of the duty of some fire fighters is no doubt manual, but there are some within brigades whose duties would involve little or no manual work ; yet all are fire fighters. The discrimen must, I think, be found in other considerations. (at p467)

13. I appreciate that a decision such as is required here is very largely one of impression, but my own strong impression is that just as a man who fights fire in his own house is not engaged in an industrial pursuit, neither is a person so engaged when he fights a fire in the house of another, even if he is employed and paid to do so. Again there is a good deal in common between a policeman and a fire fighter. Each is paid for his work ; each is entitled to the support of the public in the doing of his work ; each in doing his work protects the community, including, of course, the industry of the community ; neither, however, in my opinion, is engaged in an industrial pursuit. (at p467)

14. Having reached this conclusion, and the matter having reached the stage it has in the Commission, it seems to me that the proper order to make is to grant certiorari and quash the decision of the Commission that the association should be registered as an organization under the Conciliation and Arbitration Act. (at p467)

OWEN J. I agree with the judgment of the Chief Justice and with the order which he proposes. (at p467)

WALSH J. The application before the Court is for prohibition or certiorari in respect of a decision of the Deputy Industrial Registrar and of its confirmation by Franki J. as Deputy President of the Commonwealth Conciliation and Arbitration Commission. That decision was that an application for the registration of an association called The United Firefighters' Union as an organization of employees under the Conciliation and Arbitration Act 1904 (Cth), as amended, should be granted. The grounds upon which it is challenged are (a) that persons employed by the eight applicant Authorities in or in connexion with the prevention, suppression or extinguishment of fires are not employees in or in connexion with any industry or employees engaged in an industrial pursuit or pursuits within the meaning of s. 132 of the Conciliation and Arbitration Act 1904 (Cth), as amended, (hereinafter called the Act) and the registration of the association which included such persons was not authorized by the Act ; (b) the association was not any material time an association of not less than one hundred employees in or in connexion with any industry or engaged in any industrial pursuits within the meaning of s. 132 and its registration was not authorized by the Act ; and that (c) alternatively, in so far as the Act may purport to authorize registration of the association including within its membership persons employed in the prevention, suppression or extinguishment of fires employed by any of the applicant Authorities, it is beyond the power of the Parliament of the Commonwealth. (at p468)

2. It appears that the Authorities or, at any rate, some of them, are engaged in manufacturing and also in selling fire alarm and sprinkler systems, warning bells, portable searchlights and other similar items of equipment. But it seems that, for the most part, these articles are manufactured for use by the Authorities themselves and disposal of them is incidental to the primary functions of the Authorities. In my opinion the Authorities are not to be regarded, for the purposes of resolving the questions before the Court, as being engaged in the trade of selling goods but are to be regarded as providing services to the community, consisting mainly but not solely of preventing or diminishing loss or damage by fire to life or property. (at p468)

3. The employees of the Authorities, who are eligible for membership in the association, are described in its rules as those who are employed "in full time employment in or in connexion with the prevention, suppression or extinguishment of fires ; (1) by civil brigades, boards or authorities in any rank, grade or classification of firefighter, fireman, special service firefighter, special service fireman, service firefighter, service fireman, radio-operator, hose maker and repairer, a member of a service maintenance section, regional fire officer, chief fire officer, deputy chief fire officer, fire officer, station officer or in any employment the duties of which are not materially different from the duties of one of these employments". The Authorities have other employees engaged in other sections but the present application is directly concerned only with those described in the rules, most of whom constitute the fire fighting sections of the employing organizations. (at p468)

4. The evidence indicates that fire fighters employed by the Authorities perform duties other than those concerned directly with the fighting of outbreaks of fire. An affidavit sworn by the respondent, William Murray Webber, in these proceedings includes the following statements : "In addition to fighting fires and doing fire-fighting drill firefighters perform watch-room duties, polish floors in most of the station area, wash floors, toilets, baths and shower rooms, clean and polish brass fittings on appliances in and around the station, polish brass fittings on small gear and on hoses and couplings, wash, clean and polish the bodywork of appliances, clean engines, wash and nugget the tyres and wheels of vehicles and the rubber matting in and about the appliances, stoke, clean and tend heaters to provide hot water and heating, clean windows, hose down and sweep station yards, tend gardens, mow lawns, flush and sweep gutters surrounding the station, clean and wash walls, ceilings and light fittings in stations, test fire alarms, inspect and test hydrants, paint and fix indicators for the hydrants, wash and scrub the hose after fires or drill, repair and clean couplings, store and replace hoses and appliances, pump water from cellars and work in the salvage section when property is threatened by water. Salvage work is undertaken by members of the fire fighting staff, both officers and men. It involves recovery of property during a fire, covering it with waterproof material, oiling metal and machinery, pumping out cellars, removing water from various establishments and this service is also provided where flooding occurs due, for instance to burst water mains." Those statements are not disputed but on behalf of the present applicants there was evidence to the effect that the primary function of the Authorities is the taking of steps for the prevention and extinguishment of fires and the protection of life and property in case of fire. No doubt this is their principal function, which is imposed upon them by the Acts under which they are constituted. Their other activities are ancillary to that function. But that does not mean that one is not to look at the work in which the employees are engaged in its totality. (at p469)

5. The respondents contend that the requirements of both par. (b) and par. (c) of s. 132 (1) of the Act are satisfied. I propose to consider, first, the question whether or not these employees are engaged in an industrial pursuit or pursuits within the meaning of par. (c). (at p469)

6. In s. 4 (1) of the Act it is provided that "Industry" includes "any calling, service, employment, handicraft, or industrial occupation or avocation of employees". This is not to be construed as making it unnecessary, for the purposes of s. 132, that the employment should be in any way related to industry. It must appear that the pursuit is "industrial" and in deciding that question it appears that the nature of the employment should be examined mainly from the point of view of the employees rather than that of the employers. I do not think that these two aspects of the employment must always be considered in complete isolation from one another. But it is true, in my opinion, that an employee may be held to be engaged in an industrial pursuit, notwithstanding that the employer would not be regarded as carrying on an industry, if the work of the employee when considered from his point of view is adjudged to be industrial in its nature. (at p470)

7. In several cases which have come before this Court the question was as to the meaning of the words "industrial disputes" in s. 51 (xxxv.) of the Constitution or as to the meaning of "industry" and "industrial" in legislation enacted pursuant to the power thereby conferred. The cases were not concerned directly with the construction of s. 132 (1) of the Act or of earlier similar provisions. But the pronouncements that have been made as to the nature and scope of the concept of "industry", to which the constitutional provision was intended to refer, and to which the legislative provisions construed with regard to the constitutional power should be taken to apply, are relevant in my opinion to the solution of the problem that is now before the Court. There have been conflicting opinions, assigning to the term "industry" a wide or a narrow connotation, but the preponderance of judicial opinion has been in favour of a wide construction. Although the sense in which it is to be interpreted has not been settled by an accepted judicial definition or formula, guides have been given which are I think of significance for present purposes. (at p470)

8. In Ex parte Professional Engineers' Association (1959) 107 CLR, at p 218 it was argued that the effect of the decisions in Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569 and in Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 was that in all cases the activity of the employer impresses itself upon the occupation and "the definitive and key inquiries are what is the activity of the employer". The argument was not accepted. The State School Teachers' Case (1929) 41 CLR 569 was not regarded as establishing that the activity of the employer was decisive in determining the character of the employment. That case was regarded as recognizing that the duties of the employee and the work which he is engaged to perform may have to be considered in order to determine whether these are by nature industrial : see Professional Engineers' Case (1959) 107 CLR, at pp 236-238, 258-259 . (at p470)

9. I must decide therefore whether the work which these employees perform should be adjudged to be in its nature industrial or "should be considered to stand apart from the wide conception of what is 'industrial'" (1959) 107 CLR, at p 237 . After much consideration I have come to the conclusion that it should be regarded as industrial and that, therefore, the employees should be regarded as being engaged in an industrial pursuit. (at p471)

10. A substantial part of the work can be properly described in my opinion as being manual work. There is, of course, room for debate as to the ambit of that expression. But I do not think that it is only where the employment is an employment to do physical work alone without any exercise of knowledge or skill that the employment ought to be regarded as being of a typically industrial character. Most of the work with which this case is concerned is work in which physical effort predominates over mental effort. Whilst it would not be accurate to describe the work as a whole as being entirely manual in its character, it is more akin to manual work than it is to mental or intellectual work. (at p471)

11. I am of opinion that the decision in Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508 is persuasive towards a conclusion in favour of the respondents in this case. I do not suggest that it compels that conclusion. But, in my opinion, there would be a degree of incongruity in denying an industrial character to the employment with which the present case is concerned whilst conceding it to the employment with which the Municipal Employees' Case (1919) 26 CLR 508 was concerned. There the Court dealt with a question whether there was power in the Commonwealth Court of Conciliation and Arbitration to determine a dispute between the employees' union and the corporations, so far as the dispute related to such operations of the municipal corporations as consisted of the making, maintenance, control and lighting of public streets or any of them. Clearly those operations would cover a wide range of activities carried out by employees of different classes as shown by the reference (1919) 26 CLR, at p 589 to the tradesmen who were concerned in the claims made by the union. (See, also, Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia (1944) 68 CLR 628 .) Different reasons were given by the members of the Court who constituted the majority in the Municipal Employees' Case (1919) 26 CLR 508 for holding that the dispute was an industrial dispute. I do not wish to analyse those reasons or to say that all of them would now be accepted. But the decision has not been challenged and the result of it is that there is included in the sphere of industry work of a kind which might not generally be regarded as falling within the ordinary meaning of that term. As to the reasons given for the decision two observations should be made. One is that, although the case has subsequently been treated (see (1959) 107 CLR, at p 236 ) as depending upon the work being of a manual character, that is not the ground upon which it was stated by their Honours to be based. The second is that, although the work in question included construction work which could perhaps be regarded as having a real connexion with the industrial world, it was not limited to that, but included the control and lighting of public streets. Yet it was regarded as coming "within the sphere of industrialism" (1919) 26 CLR, at p 555 . (at p472)

12. I am of opinion that the fact that the work of fire fighting is of a type which could be carried out, and indeed is carried out, by employees who work for employers who are directly engaged in industry tends to support the characterization of the employment as industrial. (at p472)

13. Counsel for the respondents relied upon the relationship between the fire Authorities and the fire insurance companies, upon whom levies are made to provide funds for the operations of the Authorities. It was contended that the fire fighting services were, like the business of fire insurance itself, an adjunct of industry. This argument is pertinent perhaps to the question whether the Authorities carry on an industry rather than to an examination of the nature of the work of the employees. I do not regard it as providing a sufficient reason for affirming that the Authorities do carry on an industry. Nor do I think it provides in itself a sufficient ground for a positive conclusion that the employment, looked at from the point of view of the employees, is industrial in character. But the fact that insurance has been held in the Insurance Staffs' Case (1923) 33 CLR 517 to be within the sphere of industrialism is not without significance. It is an illustration of the acceptance by the Court of "the wide conception" of what is industrial, to which reference has already been made. It is not only in relation to the insurance of property and goods directly associated with the process of manufacture and other industrial processes that the insurance business is considered to be included in the concept of industry. A more general view than that has been taken. It was said (1923) 33 CLR, at p 527 that banking and insurance "are indispensable portions of the general industrial mechanism". It may be urged that employment in fire fighting activities is outside the sphere of industrialism because those activities are directed in part to the protection of private property and also to other purposes not directly connected with the carrying on of industries. But, in my opinion, it would be too narrow a view to treat that objection as valid. If the employment ought otherwise to be regarded as industrial in character, I do not think it is deprived of that character by the circumstance that some of it is not related directly to the preservation of property which is actively engaged in an industrial process. (at p473)

14. In my opinion the State School Teachers' Case (1) does not require a decision in this case in favour of the applicants. The work of the teachers is very different from that of the employees with whom we are now concerned and a decision that the former work was not industrial in its nature has no real bearing on the question whether a similar finding should be made in this case. It was submitted for the applicants that the decision in the State School Teachers' Case (1929) 41 CLR 569 did not depend at all on any view that the nature of the work was such that it was not to be regarded as industrial. It was submitted that it was based simply on the view that whatever was the intrinsic nature of the work of the school teachers, it was impressed with the character of the State school system within which it was being performed and for that reason could not come within the concept of industry. That view of the State School Teachers' Case (1929) 41 CLR 569 might appear to be suggested by the language of a passage in the joint judgment therein of Knox C.J., Gavan Duffy and Starke JJ. After stating that "the occupation of the State school teachers is not industrial" their Honours proceeded immediately to say,

"An occupation confined to teaching in the schools of the States has impressed upon it the character of the activity in which it is exercised. If carrying on a system of public education is not within the sphere of industrialism, those who confine their efforts to that activity cannot be engaged in an industry or in an industrial occupation or pursuit." (1929) 41 CLR, at pp 575-576

This might be taken to mean that the question whether the occupation of the teachers was industrial had to be answered solely by reference to the character of the system in which it was carried on, so that any judgment as to the intrinsic nature of the work itself was wholly irrelevant. But that is not the way in which the joint judgment or the decision in the case has been interpreted in the Professional Engineers' Case (1959) 107 CLR, at p 208 . I have referred earlier to an argument advanced and rejected in that case. It was substantially the same as the argument as to the effect of the State School Teachers' Case (1929) 41 CLR 569 which has been put forward for the applicants here. (at p474)

15. For the reasons stated I am of the opinion that the requirements of par. (c) of s. 132 (1) of the Act were satisfied in this case. It is not necessary to consider whether those of par. (b) were also satisfied. (at p474)

16. There is one further matter to which some reference was made at the hearing of this application to which I should refer. In the course of his argument in reply, counsel for the applicants submitted that the employees included officers whose work was not manual. Even if the ordinary employees were considered to be engaged in an industrial pursuit because they performed manual work, this finding could not apply to the senior officers. It was submitted, also, that if it appeared that any of the employees included in the eligibility clause was not engaged in an industrial pursuit this must make the registration invalid. The point made was not that the exclusion of the senior officers would bring the number of employees below the statutory number of "not less than one hundred". It was that the inclusion in the association of any persons who were not employees of the kind described in s. 132 (1) rendered the association ineligible for registration. Therefore, it was said, its registration was invalid. (at p474)

17. In my opinion this is not a point on which the applicants are entitled to succeed. In the first place, I do not think it is within the scope of the grounds set out in the notice of the motion as those upon which the present application is based. In the second place, questions of fact are involved with which, in my opinion, this Court is not in a position to deal upon the material which is before it. The conclusion to which I have come that the employees in the fire fighting section and other relevant sections of the activities of the Authorities are engaged in an industrial pursuit is not based solely on the fact that a substantial part of the work is manual work, although it is certainly much influenced by that fact. In my opinion, the application which is now before the Court does not require or permit it to examine in detail the duties of each of the employees. The application must be dealt with more broadly than that. If it appears that most of the men employed as fire fighters or in associated duties can be described as engaged in an industrial pursuit, it would not be right to decide in this application that officers, who have been promoted from the ranks of the firefighters to positions in which they control and supervise the work of fire fighting and who form part of teams by which that work is performed, are not within the description. In my opinion the matter is one which is capable of receiving further consideration, if necessary, by the Conciliation and Arbitration Commission under powers conferred upon it by the Act, such as those conferred by s. 140. In the Professional Engineers' Case (1959) 107 CLR 208 it was recognized that possibly some of the employees might be performing duties of an administrative kind not connected in any way with any operations which could be described as industrial and that as to such employees there would be no jurisdiction to make an award. In my opinion it does not appear that the senior officers are engaged in work which is wholly unconnected with the operations which, in my opinion, have an industrial character. But I am not in a position to give any final decision on that question which, as I have indicated, turns upon factual considerations which have not been fully explored and on which the Court is not in a position to make definite findings. But however that may be, it does not appear to have been supposed in the Professional Engineers' Case (1959) 107 CLR 208 that if there were some employees engaged on work wholly unconnected with industrial operations who were, nevertheless, eligible to be members of the association, the consequence must be that the registration of the association was invalid. No such question was there considered. I am of opinion it is not appropriate on this application to consider and decide it. (at p475)

18. In my opinion the application should be dismissed with costs. (at p475)

Orders

Order that a writ of certiorari to quash the registration of The United Firefighters' Union as an organization of employees under the provisions of and for the purposes of the Commonwealth Conciliation and Arbitration Act 1904-1969 issue. Respondent Union to pay the costs of the prosecutors.