R v Holmes; Ex parte Public Service Association of New South Wales

[1977] HCA 70

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Jacobs and Murphy JJ.

THE QUEEN v. HOLMES; EX PARTE PUBLIC SERVICE ASSOCIATION (N.S.W.)

(1977) 140 CLR 63

22 December 1977

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Registered organizations—Eligibility for membership—Demand by union on behalf of clerical and administrative officers employed by the Commissioner of Motor Transport—Rule making salaried employees of Commissioner eligible for membership of union—Whether Commissioner engaged in transport industry—Whether officers engaged in industrial work—Industrial dispute—The Constitution (63 &64 Vict . c. 12), s. 51 (xxxv.)—Conciliation and Arbitration Act 1904 (Cth), s. 4, "dispute".

Decisions

Dec. 22.
The following written judgments were delivered: -
BARWICK C.J. The circumstances out of which and upon which this application for prohibition has arisen are set out in the reasons for judgment prepared by my brother Gibbs, which I have had the advantage of reading. (at p67)

2. Three questions are involved: first, whether clerical and administrative employees of the Commissioner for Motor Transport of the State of New South Wales ("the Commissioner") are eligible to be members of the Australasian Transport Officers' Federation ("the respondent union"); secondly, whether, if so, the Commissioner is in relation to such employees an employer in an industry so as to be relevantly in dispute with the respondent union; thirdly, whether the Public Service Association of New South Wales ("the prosecutor") has an interest to maintain this application. (at p67)

3. My brother Gibbs in his reasons sets out the statement of the industry in connexion with which the respondent union is registered and the eligibility for membership of the respondent union contained in its rules. It is necessary to anticipate the answer to the second of the listed matters in order to determine the scope of the eligibility clause. (at p67)

4. I agree with what my brother has written as to the nature of the employment of the clerical and administrative employees of the Commissioner and as to the non-industrial character of the functions of the Commissioner. The clerical and administrative work of such employees in the Commissioner's employment is not in its nature industrial, however much in some other employment clerks and administrative officers may be in industry either directly or incidentally. Further, the functions of the Commissioner set out by my brother in his reasons are clearly governmental and non-industrial. I agree with my brother in concluding that it cannot properly be said that those functions are incidental to the transport industry in any relevant sense. (at p68)

5. Having reached that conclusion, it is clear that the clerical and administrative employees of the Commissioner are not employed in the transport industry. But are they made eligible by reason of the words of the eligibility clause, namely "including without limiting the ordinary meaning of the foregoing, persons employed at an annual salary rate in any capacity . . . by the Commissioner for Motor Transport"? (at p68)

6. Whilst it is true that an eligibility clause cannot provide for membership of persons not engaged in the industry in respect of which an organization is registered, the eligibility clause must, in my opinion, be read in the light of the description of that industry. In case of ambiguity, that meaning which is most compatible with the registration of the organization should be preferred. Further, in case of ambiguity it should be considered as unlikely that the union intended its membership eligibility to extend beyond the industry of its registration. (at p68)

7. There is, in my opinion, ambiguity in so much of the eligibility clause as begins with the word "including". One is not to approach the construction of the eligibility clause on the footing that its draftsman considered the Commissioner not to be in the transport industry. Rather, if anything, I should think that the draftsman, assuming him to be a union official and not a qualified lawyer, would in my opinion have worked on the theory that the Commissioner was in the transport industry. On that footing the inclusive words are unlikely to have been intended to include employees whose employer was not in the transport industry. (at p68)

8. The same result would follow if instead of taking the more positive hypothesis which I have indicated, one took as the supposed position of the draftsman that at any rate he did not work on the basis that the Commissioner was not in the transport industry. In my opinion, the proper interpretation of the addendum is that in relation to the Commissioner it does not travel outside the industry in respect of which the respondent union was registered. So to interpret the eligibility clause is not to subject it to meticulous scrutiny or to construe it restrictively or otherwise than fairly to ascertain its intended meaning. In my opinion, the clerical and administrative employees of the Commissioner are not eligible to be members of the respondent union. (at p69)

9. I agree with my brother Gibbs in deciding that the prosecutor had an adequate locus standi to maintain this application. (at p69)

10. I agree that the rule should be made absolute. (at p69)

GIBBS J. In proceedings which are pending before the Australian Conciliation and Arbitration Commission ("the Commission"), the Australasian Transport Officers' Federation ("ATOF") has sought the making of an award which would make provision for the wages and conditions of service of officers employed by the Commissioner for Motor Transport of the State of New South Wales. For the purpose of creating an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"), ATOF followed the traditional procedure of serving a letter of demand, and an attached log of claims, upon a number of employers in various States, including the Commissioner for Motor Transport. The industrial dispute was said to have come into existence when the recipients of the letter of demand failed to comply with its requirements. The Commission determined under s. 24 of the Act that a dispute existed and proceeded with the hearing of the application for an award. It appears that for many years male officers of the Department of Motor Transport have been members of ATOF and have been covered by a federal award but female officers have been members of the Public Service Association of New South Wales ("the Association") and covered by a State award. However the award now sought by ATOF would apply to female officers as well as to males. The prosecutors, the Association and its secretary, Mr. Hammond, now seek a writ of prohibition to restrain the Commission, ATOF and the Commissioner for Motor Transport from proceeding further in the matter in so far as it relates to employees of the Commissioner for Motor Transport engaged in clerical and administrative work. The prosecutors contend that no industrial dispute has arisen, and that the Commission accordingly lacks jurisdiction, for two reasons, namely, (1) because the Commissioner for Motor Transport is not an employer in an industry; and (2) because ATOF is not entitled under its rules to enrol as members employees of the Commissioner for Motor Transport who are engaged in clerical and administrative work and is therefore unable to make on behalf of such employees a demand which can give rise to an industrial dispute. (at p69)

2. The Commissioner for Motor Transport is a body corporate constituted under the Transport (Division of Functions) Amendment Act, 1952, s. 3, as amended by the Transport (Division of Functions) Further Amendment Act, 1952, s. 6, and the State Transport (Co-ordination) Amendment Act, 1954, s. 5. Before the last-mentioned Act was passed the title of the head of the Department now administered by the Commissioner for Motor Transport was the Superintendent of Motor Transport. That Department performs functions under a number of statutes of the State of New South Wales. First, it is concerned with the registration of all privately owned motor vehicles on the roads of New South Wales and the licensing of those who drive them. Thus it registers motor vehicles, licenses drivers and regulates the construction, equipment and operation of motor vehicles: Motor Traffic Act, 1909; it licenses persons who teach the driving of motor vehicles: Motor Vehicle Driving Instructors Act, 1961; it licenses public motor vehicles with the aim of co-ordinating various means of transport and of eliminating wastage and uneconomic competition between various transport services: State Transport (Co-ordination) Act, 1931; it licenses towtrucks: Tow-truck Act, 1967 and it registers, licenses and controls privately operated motor omnibuses, their drivers and conductors and controls taxi cabs, private hire cars and motor vans: Transport Act, 1930. In addition it licenses commercial aircraft operating within New South Wales: Air Transport Act, 1964. (at p70)

3. A second function is the promotion of traffic safety, under such Acts as the Traffic Safety Act, 1970 and the Traffic Safety (Lights and Hoardings) Act, 1951. (at p70)

4. A third important function of the Department is the collection of taxes and charges paid in connexion with the operation of motor vehicles: see Motor Vehicles Taxation Management Act, 1949; Motor Vehicles (Taxation) Act, 1971; Motor Vehicles (Third Party Insurance) Act, 1942; Road Maintenance (Contribution) Act, 1958; Transfer of Public Vehicles (Taxation) Act, 1969. Some of the moneys so collected are in respect of the compulsory insurance of owners and drivers of motor vehicles against liability in respect of death or bodily injury to persons arising from the use of those vehicles; other moneys are intended to be a contribution towards the maintenance of the public roads. The total amount of taxation collected by the Department is very considerable; during the year 1975-1976 the amount collected exceeded $365 million. The bulk of this sum was disbursed in providing for the costs of the administration of the Department, in providing traffic facilities, and in making substantial payments to roads authorities and the Government Insurance Office; only $24 million was paid to Consolidated Revenue, and that was expressed to be to recoup the cost of police and ambulance services. (at p71)

5. The Department itself does not provide transport services; it does not operate buses, trains or other public vehicles. The work of the employees concerned is the clerical and administrative work involved in the performance of the functions of the Department. (at p71)

6. ATOF is an association registered under the provisions of the Act as an organization of employees. The industry in connexion with which it is registered is described in its rules in the following terms:

"The industry in connexion with which the Federation is formed is the transport industry, whether by land, water (except sea) or air (excluding activities of or relating to the piloting of aircraft) as carried on by - 1. the Crown in right of the Commonwealth or of any State or States or of the Commonwealth and any State or States; or 2. any statutory body representing the Crown in any such right as aforesaid; or 3. any instrumentality or authority whether corporate or unincorporate acting under the control of or for or on behalf of or in the interest of the Crown in any such right as aforesaid; or 4. any company or corporation in which at least fifty per centum of the issued shares are held by or for or on behalf of or in the interest of the Crown in any such right as aforesaid; or

5. any company, corporation, firm or person engaged in the transport or carriage by air of passengers and/or goods." (at p71)

7. The rule of the Association which governs the eligibility for membership, so far as it is material, is as follows:

"1. The following persons and classes of persons shall be eligible for membership of the Federation, namely: (a) Persons employed at an annual salary rate in any capacity in the transport industry whether by land, water (except sea) or air (excluding activities of or relating to the piloting of aircraft) by . . . " (Then follows a statement of the five categories of employers in the same words as are contained in the industry rule.) "including without limiting the ordinary meaning of the foregoing, persons employed at an annual salary rate in any capacity (other than in activities of or relating to the piloting of aircraft) by . . . " (Then follows a long list of employers including "the Commissioner for Motor Transport (New South Wales)", a number of other public officials or corporations amongst which is "The Board of Land and Works (Victoria) - to the extent to which that Board engages in construction and maintenance of railways" and about twenty airline companies.) "(b) Persons whether employed in the industry in connection with which the Federation is registered or not who are officers of the Federation. 2. Notwithstanding anything hereinbefore contained - . . . (b) (i) persons employed in a professional capacity by - . . . The Superintendent of Motor Transport (New South Wales). . . . A successor or assigneee or transmittee of the business of any of the foregoing. . . . (c) persons employed under the Commonwealth Public Service Act, 1922-1948, or under the Naval Defence Act 1910-1948 . . . . . .

shall not be eligible for membership of the Federation." (at p72)

8. It is convenient to deal at once with the submission that the employees of the Commissioner for Motor Transport who are engaged in clerical and administrative work are not eligible to become members of ATOF. It is plainly right to say that such employees are not employed "in the transport industry". Those words in their natural sense mean the work or business of carrying persons or goods. I shall later deal with the question whether the work of the Commissioner for Motor Transport is incidental to the transport industry, but whatever may be the answer to that question the employees engaged in clerical and administrative work for the Commissioner for Motor Transport are not employed in that industry. The Commissioner for Motor Transport does not conduct the business of carrying persons or goods; it provides no transport. However the rule goes on to include persons employed at an annual salary rate by the Commissioner for Motor Transport. On behalf of the Association it was submitted that in this clause the word "including" should be read, not as a word of extension, but as meaning "such as", and that it was inserted out of an abundance of caution to cover the employers specifically mentioned, provided that they are in the transport industry. There are a number of reasons why I feel bound to reject this submission. In the first place the result would be to render the words "the Commissioner for Motor Transport (New South Wales)" in par. 1 (a) of the eligibility rule nugatory for all practical purposes. It may be that there are a few employees of the Commissioner for Motor Transport who drive the Department's cars or its aircraft but it is difficult to suppose that the reference to the Commissioner for Motor Transport was designed to bring in a few individuals whose position so far as the Department generally is concerned would be quite exceptional. Then the fact that, by par. 2, it was thought necessary expressly to exclude persons employed in a professional capacity by the Superintendent of Motor Transport (an expression which must now be understood as referring to the Commissioner for Motor Transport) indicates that it was considered that if it had not been for this exception such persons would have been eligible to be members of ATOF by virtue of par. 1 (a). In other words, par. 2 (b) (i) was drafted on the assumption that the word "including" in par. 1 (a) was extensory in effect. In the course of argument counsel pointed on the one hand to the words of par. 1 (b), and on the other hand to the qualified reference to the Board of Land and Works, but in my opinion neither provision throws any light on the present question. I would add that rules of this kind should not be subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers, and should not be restrictively construed. (at p73)

9. It is now well settled that the eligibility clause of an association may validly travel beyond the bounds of the industry in respect of which it is registered: Reg. v. Dunlop Rubber Australia Limited; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 ; Reg. v. Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77, at p 79 ; Reg. v. Clarkson; Ex parte Victorian Employers Federation (1973) 131 CLR, at pp 110-111, 113 . No doubt if there is an ambiguity in the eligibility clause "it would be proper to resort to the nature of the industry in respect of which the organization is registered as an element in the resolution of that ambiguity": Reg. v. Watson; Ex parte Australian Workers' Union (1972) 128 CLR, at p 79 . The use of the word "including" in the eligibility clause in the present case indicated an intention that the eligibility clause should go beyond the industry clause. We were referred to a passage in Reg. v. Moore; Ex parte Australian Workers' Union (1976) 51 ALJR, at p 180 , where Barwick C.J. said: "It is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating to the industry of the employer . . . " . That passage is no assistance in the present case once it is decided that the eligibility clause simply names the present employer, and makes no reference to the industry in which that employer is engaged. (at p74)

10. For these reasons I conclude that the employees in question were eligible to join ATOF. (at p74)

11. It then becomes necessary to turn to the more important question which is whether a dispute between the Commissioner for Motor Transport and the clerical and administrative officers employed in the Department is an industrial dispute within s. 51 (xxxv.) of the Constitution and s. 4 of the Act. (at p74)

12. If the opinions expressed by Griffith C.J. and O'Connor J. in Jumbunna Coal Mine, N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 332-333 and 365-368 were accepted, it would be clear that the dispute in the present case would be an industrial dispute within s. 51 (xxxv.). The view there taken by their Honours was that a dispute between employer and employee in every kind of employment would be within s. 51 (xxxv.), provided that large numbers of persons were employed and that the sudden cessation of their work might prejudicially affect the orderly conduct of the operations of civil life. The reasons which O'Connor J. gave (1908) 6 CLR, at pp 366-368 for reaching that conclusion appear to me convincing. It might have been thought that Isaacs J. was indicating a similar view (1908) 6 CLR, at p 370 although he later resiled from it. However in Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569, at p 574 , this view was held to be too wide, and the decisions in that case and in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488 and Pitfield v. Franki (1970) 123 CLR 448 make it impossible to accept it in its full generality. In Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR, at pp 608-609 , Mason J. said that his own inclination would be to adopt a view akin to the opinions expressed by Griffith C.J. and O'Connor J. as appropriate to the nature and scope of the power and the underlying purpose which it was designed to achieve. I agree with that observation, but it does not mean that all employees should be held to be engaged in industrial activity. There has not yet been formulated any definition of "industrial" which has met with general acceptance, and I do not propose to endeavour to remedy that deficiency in the present case. (at p75)

13. It has been held 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": see Pitfield v. Franki (1970) 123 CLR, at p 456 , per Barwick C.J. The work performed by the employees in the present case was clerical and administrative work. Such work is in my opinion of a neutral character; it may or may not be industrial, depending on the circumstances. A suggestion that s. 51 (xxxv.) is confined to work of a manual character was rejected in Proprietors of The Daily News Ltd. v. Australian Journalists' Association (1920) 27 CLR 532 . Since that decision, clerks employed by banking and insurance companies, and by a credit union, have been held to be capable of becoming parties to an industrial dispute: Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 ; Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 . However it was said by Starke J., when sitting as an Acting Deputy President of the Arbitration Court, "that officers in the administrative branches of the States, such as clerks in the Treasury, in the Lands Department and in the Law Department are not engaged in, or in connexion with, any industry and are not persons over whom the Commonwealth Arbitration Court could have any authority whatever", and this passage was cited by Dixon C.J. in Ex parte Professional Engineers' Association (1959) 107 CLR 208, at p 233 , with the comment that it "forms an apt contemporaneous statement of the inapplicability of the federal industrial power to the administrative services of the States notwithstanding the interpretation placed upon it in the Engineers' Case (1920) 28 CLR 129 ". In the same case Dixon C.J. said (1959) 107 CLR, at p 245 , that it would not be inconsistent with the decision in that case for the Commission to exclude officers "not in fact concerned with anything but bare administrative service to the State unconnected with any kind of constructional work or preparation for constructional work or with any other matter which might be regarded as providing a sufficient connexion with operations that might be described as industrial within the meaning of s. 51 (xxxv.)". In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR, at p 502 , Latham C.J. said:

"No-one would say that, in the ordinary sense of the word industry, a public servant in one of the ordinary governmental departments was engaged in industry. Officers in the Lands Department and the Titles Office and the Attorney-General's Department, policemen controlled by the Chief Secretary, are all doing useful and necessary work as employees of the State, but it would be a misuse of words to describe them or their employer as engaged in industry."

In the light of these observations I find it impossible to accept the argument advanced on behalf of ATOF that clerical activity is prima facie an industrial occupation. Indeed I have already expressed the view that although clerks might be engaged in industry, that will not necessarily be the case: Reg. v. Clarkson; Ex parte Victorian Employers Federation (1973) 131 CLR, at p 114 . (at p76)

14. When one turns to the character of the activities of the employer, it is necessary to bear in mind the significance and consequences of the Engineers' Case (1920) 28 CLR 129 and the Professional Engineers' Case (1959) 107 CLR 208 . The matter is fully discussed in the judgment of Dixon C.J. in the last-mentioned case (1959) 107 CLR, at pp 232 et seq . He said (1959) 107 CLR, at p 234 : "That which is naturally within s. 51 (xxxv.) cannot cease to be so because it is 'governmental'." In the same case Windeyer J. (1959) 107 CLR, at p 273 said: "But to say that an activity is governmental does not determine that it is not industrial in the relevant sense of that word." It is involved in the decision in those cases, and it was held in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 2) (1920) 28 CLR 436 that to answer the description of an industry what is done need not be done for profit. Nevertheless the nature of the activity performed by the officers of the State may be such as to show that it is not industrial. In the Professional Engineers' Case, Dixon C.J. (1959) 107 CLR, at p 234 , gave as an example officers of the State employed in assessing land tax, whose functions "stood outside the whole world of productive industry and organized business". In the same case, Windeyer J. mentioned "taxation, registration of lands titles, the administration of justice, police" as activities which, at least prima facie, would not be industrial (1959) 107 CLR, at p 273 . (at p76)

15. The reason why clerks were held to be engaged in an industrial dispute in Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 and Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 was that the activities which their employers carried out were "ancillary or incidental to the organized production, transportation and distribution of commodities or other forms of material wealth": see the Professional Engineers' Case (1959) 107 CLR, at p 236 and Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR, at pp 607-608 . One question in the present case is whether the functions which the employees of the Commissioner for Motor Transport are called on to perform are ancillary or incidental to the transportation and distribution of commodities. If so the fact that they are clerks or administrative officers employed by a government department will not prevent them from being held to be employed in industry. (at p77)

16. It was strongly argued that the activities of the employees in the Department of Motor Transport are ancillary or incidental to the transportation and distribution of goods and persons. The system which the Department provides is designed to bring a measure of order and safety to road transport. The functions of the Department were described as being a management function applied directly to and in the use of roads and transport by road in New South Wales. The road transport system would undoubtedly suffer if the activities of the Department were to cease. The taxes and charges which the Department collects are the source of a substantial part of the moneys used in road construction. (at p77)

17. The question whether one activity is incidental to or ancillary to another is one of degree. For example, the duties of traffic police, and of magistrates sitting in the traffic court, might in one sense be said to be ancillary to transportation, but nevertheless it could confidently be said that their activities are not directly connected with transportation. Similarly it should in my opinion be held that the duties performed by the clerks and administrative officers employed in the Department of Motor Transport are only incidental to transportation in a remote and indirect way. But what is more important is that their duties are not in their nature industrial, because they stand "outside the whole world of productive industry and organized business". It is not a sufficient distinction between the position of clerks in the Treasury, and that of clerks employed by the Commissioner for Motor Transport who collect taxes and charges, that the funds raised by the latter are devoted to special purposes relating to transportation. The tasks of licensing, and registration, and formulating rules for the governance and safety of traffic, also cannot properly be described as industrial. They are bare administrative functions, such as could not be performed in industry under our system. (at p77)

18. For these reasons I hold that the dispute between the Commissioner for Motor Transport and his clerical and administrative officers is not an industrial dispute within s. 51 (xxxv.) of the Constitution, or within the Act. That of course is not to say that no employees in the Department are engaged in industry. What is said is limited to employees engaged in clerical and administrative work. (at p78)

19. The Association had a locus standi to apply for prohibition, and a real interest to do so; there is no reason to exercise the Court's discretion by refusing the remedy - cf. Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR 317, at p 327 ; Reg. v. Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77, at p 97 . (at p78)

20. I would make absolute the order nisi. (at p78)

STEPHEN J. I have read and agree with the conclusions reached by my brother Gibbs J. in relation to each of the three questions involved in this application. Accordingly I would make absolute the order nisi. (at p78)

JACOBS J. The first question which arises is whether persons "employed" by the Commissioner for Motor Transport (N.S.W.) at an annual salary rate in any capacity (other than in activities of or relating to the piloting of an aircraft) are within the eligibility clause of the Australasian Transport Officers' Federation. In my opinion they are, and I cannot usefully add to the reasons expressed by Gibbs J. for this conclusion. (at p78)

2. The second question is whether there exists any industrial dispute within the meaning of s. 51 (xxxv.) of the Constitution between the Australasian Transport Officers' Federation and the Commissioner for Motor Transport with respect to such employees. The answer to this question may be found by considering two subsidiary questions - first, whether the Commissioner for Motor Transport is himself engaged in an industry, in industrial activities, so that the industry and activities of the Commissioner for Motor Transport will enable a dispute with his employees to be categorized as an "industrial dispute"; and, secondly, irrespective of whether or not the Commissioner for Motor Transport is engaged in industry, whether the work of the employees in question is of an industrial character. If either of these questions is answered in the affirmative, then the second main question which I have posed may also be so answered. (at p78)

3. The first of these subsidiary questions is framed on the assumption that more is needed in order to create an industrial dispute than a dispute between employer and employees in relation to the terms of their employment which has led or may lead to dislocation or cessation of the activity in which they are engaged. A wide view of the meaning of the words "industrial dispute" was expressed by Griffith C.J. and O'Connor J. in the Jumbunna Case (1908) 6 CLR 309 but subsequent expressions of opinion have given a substantially narrower meaning to these words than was given by these earlier judges of the Court. I agree with the observation of Mason J. in Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR, at pp 608-609 when he said that his own inclination would be to adopt a view akin to the views expressed by Griffith C.J. and O'Connor J. as appropriate to the nature and the scope of the power and the underlying purpose which it was designed to achieve. (at p79)

4. I do not find it necessary to express an opinion upon whether the Commissioner for Motor Transport is engaged in an industry in the relevant sense because I am satisfied upon the evidence that many employees of the Commissioner for Motor Transport perform work which is commonly and usually regarded as work of an industrial character, work which is not substantially or relevantly different from the work which is performed throughout industry generally by many persons in clerical occupations. (at p79)

5. Before I proceed to examine that evidence I should perhaps state the obvious fact that I rely for my approach to the resolution of the matters in issue upon Ex parte Professional Engineers' Association (1959) 107 CLR 208 , an authority which stands unaffected by subsequent decisions of this Court in application of the principles enunciated in the Professional Engineers' Case to particular facts and circumstances. In Pitfield v. Franki (1970) 123 CLR, at p 456 , Barwick C.J. said:
"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)." (at p79)

6. I take the Professional Engineers' Case (1959) 107 CLR 208 to be authority for the proposition that the actual work performed by employees must needs be examined when the industrial character of the dispute is sought to be found not in the fact that the employer is engaged in industry but in the fact that employees of that employer perform work of an industrial character. I take it also to be established that, although the fact that an employee is employed by the State or an instrumentality of the State may result in the work of that employee being in fact not work of an industrial character, nevertheless where the work of the employee otherwise has the industrial character then the fact that the work is done in the course of a function of government is not relevant and that to treat it as relevant is indirectly to reintroduce the tests of immunity of State instrumentalities current before the Engineers' Case (1920) 28 CLR 129 . I shall elaborate shortly upon this aspect of the Professional Engineers' Case (1959) 107 CLR 208 because certain language of Dixon C.J. in that case has been relied upon to support the very notion which he was at pains to displace. Dixon C.J. (1959) 107 CLR, at pp 234-235 stated:
"The industrial character of a dispute or part of a dispute may be open to doubt, but the resolution of the doubt is not made easier if the supposition is adopted that the 'governmental' character of the service is actually inconsistent with its having an industrial character. That which is naturally within s. 51 (xxxv.) cannot cease to be so because it is 'governmental'. It is enough to take a simple example. It may be easy enough to say that a dispute between a State and the officers of the State employed in assessing State land tax is not an 'industrial dispute'. As a matter of the use of English terms most people would feel that this must be so and if they were called upon to give an analytic statement of the reasons why, they would say that it stood outside the whole world of productive industry and organized business. They might, by way of contrast with that, point to its governmental purpose. But if they were then faced with the question whether a dispute arising from the demands of lift attendants, office cleaners and the like upon their employers, industrial as otherwise it might be, ceased to be 'industrial' when it extended to or affected the land tax office because that was governmental, surely the answer would be that the character of the building could not make a dispute about the wages and conditions of employees doing such work any less industrial." (at p80)

7. The argument which has been put forward in the present case is that the Commissioner for Motor Transport is an authority whose functions are the collection of taxation and the licensing and registration of motor vehicles and the like. Therefore, it is said, his employees engaged for the purpose of ensuring that these functions are performed are no more engaged in industrial activity than the Commissioner is engaged in an industry. Reliance has been placed upon the statement of Dixon C.J. in the passage which I have quoted when he said that it may be easy enough to say that a dispute between the State and the officers of the State employed in assessing land tax is not an "industrial dispute", and he went on to say that most people would say that such an activity "stood outside the whole world of productive industry and organized business". But it seems to me clear that Dixon C.J. was referring quite precisely and quite particularly to the officers of the State employed in assessing State land tax and in that context observed that the assessment of tax "stood outside the whole world of productive industry and organized business". And that must obviously be right. The assessment of tax has no equivalent in industry. It is wholly a function of government. But to translate this observation into a concept that persons whose duties are not that of actual assessment but are associated with the facilitation of the work of the assessors are also "outside the world of productive industry and organized business" is to destroy the very point which Dixon C.J. sought to make. It would be to introduce the concept of "government" in order to give colour to work which, examined by itself, is work of an industrial character, no different from the work of persons employed in industry generally. That is what the Professional Engineers' Case (1959) 107 CLR 208 establishes to be impermissible. (at p81)

8. The last observation which I would make upon the Professional Engineers' Case is that the fact that the terms of a log of claims may appear to make a demand in respect of employees who are not engaged in work of an industrial character, as well as those employees who are so engaged, is no ground for prohibiting the Conciliation and Arbitration Commission from adjudicating upon the log of claims and making an award provided that the award is limited to those employees who are engaged in work of an industrial character. (at p81)

9. I repeat that whether or not a particular employee is engaged in work of an industrial character can only be determined by examining the work which he is required to perform and comparing that work with the kind of work which is performed by a person performing work in what would generally be accepted as industry and seeing whether there is any essential distinction. (at p81)

10. The particulars of work actually done by employees of the Commissioner for Motor Transport in a clerical or administrative capacity, as distinct from the purposes of the instrumentality or corporation constituted by the Commissioner for Motor Transport, is not at all examined in the evidence in support of the application to make the order absolute. Attention is exclusively directed to the functions of government performed pursuant to State Acts and the conclusion is sought to be drawn that, as a consequence of the nature of those functions, not only is the Commissioner not engaged in industry but administrative and clerical work performed in furtherance of those functions is not work of an industrial character and a dispute as to the terms and conditions of employment of employees engaged in that work is not an industrial dispute. It was left to the respondent, the Australasian Transport Officers' Federation, to produce evidence of the work actually performed. The material is lengthy and it is not necessary to go through each item of work performed by various officers in various classifications in order at this stage to determine whether any particular items of work are of an industrial character. It is not necessary because it is premature and because the prosecutor cannot succeed if there are any clerical and administrative officers whose actual duties are not essentially distinguishable from the work performed by persons in industry generally. (at p82)

11. Annexed to the affidavit of Donald Ross Burton are a number of notices of vacancies for various officers in the Department of Motor Transport. In his affidavit, he states that the duties and functions of such officers are as set out in the duty statements appearing in those notices. The duties of a Clerk Group 1 in the Accounts Section of the Accounts Branch are to:

"1. Maintain and balance a comprehensive stock record of the materials and equipment used in the Staff Canteen, conduct periodic physical stocktakes and collate the data necessary to prepare Trading and Profit and Loss statements.
2. Balance the Canteen cash takings each day and obtain acquittances from the Departmental Cashier. 3. Examine all contingency vouchers which relate to expenditure on Traffic Engineering projects and prepare dissectional summaries for posting to the costing records. 4. Maintain a record of all unclaimed items on the Public Moneys and Departmental Drawing Accounts. 5. Check advices received and adjustments made to the salary of all officers in respect of sick pay, accident pay and workers' compensation entitlements. 6. Assist in the balancing of the various deductions (income tax etc.) recorded on the staff salary cards for inclusion on the Group Certificates. 7. Sign cheques drawn on the Department of Motor Transport Drawing Account. 8. Check calculations on vouchers, verify with the relevant stores order where applicable and enter on the payment record card. 9. Check claims for travelling and living away expenses paid to all classes of Departmental employees. 10. Perform other duties as directed." (at p83)

12. The duties of a Clerk Group 2 in the same section are to:
1. Check calculations on vouchers, verify with relative duplicate order where applicable, and follow up discrepancies.
2. Maintain a card-payment system showing details of all vouchers for payment of goods purchased and services performed and cross reference with cash sheets and abstracts. 3. Audit salaried and wages timesheets, also overtime and higher grade returns, each fortnight and ensure correct entry of gross pay and variations on salaried and wages key cards. 4. Audit all final payments in respect of resignations, dismissals, retirements etc. 5. Assist in the preparation of monthly summaries of receipts and payments in respect of Traffic Control Signals, Traffic Facilities, Maintenance of Buildings and the Traffic Accident Research Unit. 6. Assist the Senior Bookkeeper in the preparation of dissections of expenditure from all Departmental Funds. 7. Maintain a sundry Debtors' Ledger and follow up outstanding debits to ensure payment. 8. As required, check claims for travelling and living away expenses paid to Departmental employees in various classifications. 9. Act as escort to the Departmental Paymaster. 10. Carry out other duties as directed." (at p83)

13. The duties of a Clerk Group 3 in the same section are to:

"1. Receive canteen takings and other miscellaneous revenue and arrange daily banking of receipts into the various Treasury Funds administered by the Department. 2. Pay salary and wages holiday dockets, unclaimed salaries and wages, petty cash items, expenses claims and special advances. 3. Prepare contingency vouchers to recoup payments made from the Motor Transport Accountant's Advance Account. 4. Check wages payrolls after preparation by Accounting Machine Operators. 5. Maintain an unclaimed salary and wages folio register. 6. Maintain and control the Departmental National Savings Group Scheme. 7. Maintain a history card record of all staff employed showing details of pay rates, variations, and long service leave and gratuity payments. 8. Maintain a register of Fixed Bank Deposits under the Authorised Inspection Station Scheme and arrange for renewals or release of deposits on maturity or when required. 9. Assist with the balancing of employees' taxation deductions with the amount remitted to the Taxation Department. 10. Maintain a record of private trunk line telephone calls made by Departmental Officers and follow up regarding payment thereof.

11. Carry out other duties as directed by the Senior Clerk." (at p84)

14. The duties of another Clerk Group 3 in the same section are to:

"1. Scrutinise expenditure vouchers, endorse thereon the Fund (s), Sections (s) (sic) and Sub-Section (s) within the Fund (s) from which payments are to be made, prepare abstracts of such vouchers, and assist in the preparation of the posting - media to record necessary entries by machine bookkeeping. 2. Maintain and balance monthly registers of payments from various Funds for the following Departmental activities: - (a) Lost Property Cash Journal (b) Unclaimed Salaries Journal (c) Purchase of Land and Purchase of Buildings (d) Alterations to Buildings (e) Maintenance of Buildings (f) Traffic Accident Research Unit. 3. Prepare the monthly Payroll Tax return for the Commissioner of Payroll Tax. 4. Maintain a daily record of Canteen trading and prepare, quarterly, a Canteen Trading Account Statement. 5. Prepare monthly a Fund Adjustment Voucher for bookkeeping purposes. 6. Sign cheques drawn on the Department of Motor Transport Drawing Account. 7. Act as paymaster as required.

8. Carry out other duties as directed by the Senior Clerk." (at p84)

15. The duties of the Clerk Group 6 (Senior Clerk) are to:

"1. Prepare financial statements showing comparison with the Budget Estimates on all Funds administered by the Department, monthly and as required, for submission to the Commissioner, Chief Accountant and Finance Committee. 2. Prepare balanced financial statements of receipts and payments on all Funds for submission to the Auditor-General and inclusion in the Department's Annual Report. 3. Direct and supervise the work of the staff engaged on bookkeeping and salary preparation duties, comprising - (i) Appropriation of expenditure to various funds. (ii) Subsidiary records of capital expenditure, building and property projects. (iii) Accounting for building maintenance, canteen operation and lost property. (iv) Repayment of Rural Bank loans and judgments obtained against employees of the Department. (v) Reconciliation of Drawing Account with the Bank balance. (vi) Cash security deposits, Bank Guarantees, Fixed Deposit securities, unclaimed moneys. (vii) Record of salaries and wages paid and balance of each period against recoupal. (viii) The recording by accounting machines of bookkeeping records. 4. Assist with the preparation of the Annual Budget Estimates for submission to the Treasurer, and any special information and estimates which may be required for the Commissioner, Minister and Treasurer from time to time. 5. Examine, certify and authorise payment of accounts in accordance with the Audit Act and Regulations. 6. Sign cheques drawn on the Departmental Drawing Account and the Motor Transport Accountant's Advance Account.

7. Perform other duties as directed." (at p85)

16. There are other sections, the Public Counter Section, the Registration Revenue Section, an Automotive Engineering Section apparently both in the Secretarial Branch and in the Chief Engineer's Branch. There are many other sections and branches. It may be, although I do not express any opinion upon the matter, that among clerks in more senior groups in various branches there are positions the duties of which would cause them to fall outside the "world of productive industry and organized business". But there are many positions for clerical and administrative officers in each branch which are not essentially distinguishable in the work done by holders thereof from the work done by clerks in comparable positions in industry generally. Particularly is this so of the group 1 and group 2 grades. (at p85)

17. Thus, for instance, the duties of a Clerk Group 2 (Garage) in the Automotive Engineering Section of the Secretarial Branch are to render clerical assistance of an appropriate nature to the Chief Engineer and be responsible to the Automotive Engineer for:
"1. The day to day allotment of vehicles from the Motor Vehicle Pool and the maintenance of a recording system in connection therewith.
2. Completion daily of a list of vehicle faults reported by drivers and its referral for the attention of the Garage Supervisor. 3. Maintaining and keeping up-dated, records of vehicle strengths and details of vehicle allocations to individual Branches. 4. The registration, insurance and N.R.M.A. membership of approximately 80 metropolitan based vehicles. 5. Assisting in the preparation of estimates in regard to the operation of the motor vehicle pool and the garage workshop. 6. Maintaining a vehicle mileage book and scheduling specific vehicles for lubrication service and oil changes. 7. Supervising bulk deliveries of petrol, maintaining records of receipts and issues and reconciling, daily, the amount of petrol on hand. 8. Maintaining records of tyre issues and a costing system associated therewith. 9. Checking in respect of goods supplied on order, invoices against orders and maintaining a card costing system. 10. Maintaining a record of vehicle accident claims and in respect of accidents, making suitable endorsement on the history cards of drivers involved, and bringing adverse driving records to the attention of the senior clerical officer. 11. Performing other duties as directed." (at p86)

18. The duties of a Clerk Group 1 (Shorthand Writer and Typist) in the Chief Engineer's Branch are:

"1. Type Ministerial and other important correspondence, and reports and submissions, from tape recorded, shorthand and manuscript notes. 2. Type master sheets of high quality for the printing of technical and other published reports. 3. Train typing staff in typing procedures and establish and maintain standards of layout and quality of typing for the various levels of reports produced in the Branch. 4. Maintain the attendance book, initially for the Automotive Engineering Policy Section and later for the Branch. This will include recording of officers on outside duties, study leave, etc., preparation of punctuality reports and distribution of staff circulars. 5. Attend to telephone and personal enquiries for the Assistant Chief Engineer, maintain his files and keep records associated with the policy functions of the Branch.

6. Perform general typing and other miscellaneous clerical duties as directed." (at p86)

19. And so it would be possible to go on through many different positions in the department of the Commissioner for Motor Transport. It is quite clear that there are numerous positions in which the work is of a quite ordinary clerical nature, the kind of work which would be performed by a large variety of clerks in industry generally. That being so, there can only be one conclusion if the exposition of Dixon C.J. in the Professional Engineers' Case (1959) 107 CLR 208 , which was concurred in by Fullagar J. and Kitto J., is to continue to be regarded as authoritative. The order nisi should be discharged. (at p87)

MURPHY J. This is yet another application to prohibit the Australian Conciliation and Arbitration Commission from arbitrating industrial claims. The familiar grounds are that there is no industrial dispute within s. 51 (xxxv.) of the Constitution, or, if there is, that it is not a statutory industrial dispute (that is, it does not come within the definition in s. 4 of the Conciliation and Arbitration Act, 1904). The main arguments to support these grounds were, firstly, that there was no dispute because the respondent, the Australasian Transport Officers Federation (ATOF), was not competent to make the disputed claims, and, secondly, if there was a dispute, it was not in an industry in the constitutional and statutory senses. (at p87)

The capacity of the respondent organization to make the claims.

2. The first question is whether the ATOF was competent to make the claims in the log concerning the work to be done by persons employed by the Commissioner for Motor Transport (N.S.W.) at an annual salary rate in any non-professional capacity. The work in question is clerical and administrative work. For twenty-two years, the ATOF has had members so employed and has made claims in respect of males so employed which have generated disputes resulting in awards under the Conciliation and Arbitration Act. The present claims only differ in that they extend to females. The prosecutor claims that the ATOF does not "cover" employees doing the work in question. (at p87)

3. The rules relating to the description of the industry in connexion with which the ATOF is registered provide:

"The industry in connection with which the Federation is formed is the transport industry . . . as carried on by - 1. The Crown in right of . . . any State . . . ; or 2. any statutory body representing the Crown in any such right as aforesaid; or 3. any instrumentality or authority whether corporate or unincorporate acting under the control of or for or on behalf of or in the interest of the Crown in any such right as aforesaid."

The eligibility for membership rule provides (omitting irrelevant matters):

"1. The following persons and classes of persons shall be eligible for membership . . . ; (a) Persons employed at an annual salary rate in any capacity in the transport industry excluding without limiting the ordinary meaning of the foregoing persons employed at an annual salary rate in any capacity . . . by . . . the Commissioner for Motor Transport (N.S.W.). 2. Notwithstanding anything hereinbefore contained . . . (b) (i) persons employed in a professional capacity by . . . The Superintendent of Motor Transport (New South Wales) . . . A successor or assignee or transmittee of the business of any of the foregoing . . .

shall not be eligible for membership of the Federation. (As a result of State legislation the reference to Superintendent of Motor Transport (New South Wales) is now to be taken as referring to the Commissioner for Motor Transport)." (at p88)

4. In these rules the description, "transport industry", is obviously intended to include the work of the persons employed at an annual salary rate by the Commissioner for Motor Transport. In my opinion, the work of the persons comes within the description of the industry in, or in connexion with which, the organization is registered, and the persons so employed come within the eligibility for membership rule. The ATOF was competent to make the claims in regard to the work in question. (at p88)

5. The prosecutor claimed that the members of the ATOF doing the work in question were not valid members, but presented no evidence to show that they had become members invalidly or that they had for some reason ceased to be members. It is not necessary to consider here whether, in the present state of the Act, the eligibility for membership rule, if it is narrower than the description of the industry in or in connexion with which the organization is registered, limits the capacity to make claims. The Act has been very much altered since the decision in Reg. v. Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 . (at p88)

Is the dispute a constitutional "industrial" dispute?

6. The phrase "industrial disputes" in s. 51 (xxxv.) of the Constitution is a composite phrase; it does not mean disputes in an industry. The separation of the words and their subjection to minute analysis has meant that this power has often been read narrowly and pedantically rather than in the broad and general way appropriate to a constitution. For example, although strikes and lockouts are classical examples of industrial disputes in the ordinary acceptance of the words, a narrow reading of the power is that they are not industrial disputes, but merely the consequences of them (see Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) (1930) 42 CLR 527 ; Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLR 387, at p 429 . As Higgins J. said "What would the man in the street say, when there is a strike of officers or engineers on a Government dredge, if he were told that there is no 'industrial dispute'? The words used in the Constitution are not even 'disputes in an industry', but industrial disputes." (Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 2) (1920) 28 CLR, at p 452 ). (at p89)

7. The phrase "industrial disputes" refers to work disputes and covers disputes concerning the entry into and termination of the work relationship as well as those concerning remuneration and other conditions of work. Disputes about recognition of unions, preference to unionists in entering, during, or on termination of the work relationship, exclusion of non-unionists or unionists from work, retirement benefits, establishment of machinery for review of dismissals or for reinstatement are examples of industrial disputes. (at p89)

8. For some time after the commencement of the industrial revolution, it was the prerogative of the owner of an enterprise to decide the wages and other terms of work as well as the goals and methods of the enterprise. The management of the larger enterprises has slipped away from those who own to those who control. Also, the determination of wages and other terms of work (such as hours, holidays, sickness and long-service leave, clothing, travelling allowances, etc.) has come to be decided by agreement or arbitration between management and trade unions. Until recently, industrial disputes have arisen almost exclusively over wages and allowances, hours of work, leave and physical conditions. A few have centred on safety and health of workers and some on the recognition of trade unions, rights of inspection, preference to unionists or exclusion of non-unionists, or pay and employment conditions of non-unionists. The subjects of industrial disputes have not been exhausted by our experience. (at p89)

9. The emerging subject of industrial disputes is industrial democracy - the demand by workers for an effective voice and power of decision in the processes which affect their working lives and indirectly their family and social lives. The intensity of this almost universal demand and the extent to which it is being rapidly fulfilled is causing an historical change in the work relationship (see Industry's Democratic Revolution, ed. Charles Levinson (1974)). (at p90)

10. Disputes over all such claims are "industrial disputes" in the constitutional sense. In Jumbunna Coal Mine, N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 , Griffith C.J. and O'Connor J. regarded disputes in every kind of employment as constitutional industrial disputes, provided that large numbers of persons were employed and that the sudden cessation of their work might prejudicially effect the orderly conduct of the operations of civil life. The two provisos are outmoded. The orderly conduct of operations of civil life has often been prejudicially affected by actions of small numbers of persons which are not sudden, and do not amount to a cessation of work. Moreover, modern industrial disputes often occur in the absence of employer-employee relationship. In many parts of industry, work is carried out by persons who are not employees. For example, in the transport industry, many drivers are owner-drivers or lessees, but not employees. The construction industry is characterized by contract work which does not involve employment, at least in any strict sense. Under Pt VIII of the Industrial Arbitration Act (N.S.W.), persons in various occupations where the working relationship is not employment are deemed to be employees. (at p90)

11. The claims made here raise an industrial dispute. It is enough that they are claims concerning the terms and conditions upon which work is to be done made by an organization competent to make the claims in respect of that work. (at p90)

12. It is not necessary to determine whether the Commissioner is in an industry. The prosecutor contended that as the activities of the Commissioner were governmental, this prevented the dispute from being an industrial dispute. This contention was rejected in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers, Australia (1959) 107 CLR 208 . (at p90)

13. If any immunity for State governments from exercise of the power in s. 51 (xxxv.) is to be read into the Constitution, this should not be by implying some exception into the words "industrial disputes". Rather it would come from the words "subject to the Constitution" in the opening of s. 51. (at p90)

14. The ATOF accepted that the decisions in Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569 and Pitfield v. Franki (1970) 123 CLR 448 were inconsistent with this interpretation of "industrial disputes" in the Constitution, but contended that those cases depended on a construction of the constitutional power which was too narrow. I agree. (at p91)

Is the dispute a statutory industrial dispute?

15. The statutory definitions in s. 4 of the Conciliation and Arbitration Act apply except where otherwise clearly intended. "Industrial dispute" means:
"(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and
(b) a situation which is likely to give rise to a dispute as to industrial matters which so extends, and includes (c) such a dispute in relation to employment in an industry carried on by, or under the control of, a State or an authority of a State." (at p91)

16. It is common ground that, if there is a dispute, it is one "as to industrial matters" and "extends beyond the limits of any one State".

"Industry includes: (a) . . .

(b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; . . ." (at p91)

17. In this case, the work is clerical or administrative work done by employees. This is a "calling, service, employment . . . or industrial occupation or vocation of employees" and thus an industry as defined. The industry is carried on by, or under the control of a State or an authority of a State (and thus the dispute falls within par. (c) as well as (a) of the definition of "industrial dispute"). Thus the dispute is within the statutory as well as the constitutional concept. (at pGE91)

18. The Public Service Association has standing to apply for prohibition. For some years members of the Association (although it seems only females) have been engaged on the work in question. (at pGE91)

19. The order nisi should be discharged. (at p91)

Orders

Order nisi for writ of prohibition made absolute.