R v Isaac; ex parte Transport Workers Union

[1985] HCA 80

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ.

THE QUEEN v. ISAAC; Ex parte TRANSPORT WORKERS' UNION

(1985) 159 CLR 323

12 December 1985

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Registered organization—Eligibility for membership—Workers engaged in labour in or in connexion with reducing and refining of ores—Diamond mine—Workers engaged in construction and operation of mine and treatment plants—Conciliation and Arbitration Act 1904 (Cth), s. 142A(1).

Decisions

GIBBS C.J.: The two proceedings now before the Court arose out of competing applications made by two unions under s.142A(1) of the Conciliation and Arbitration Act 1904 (Cth), as amended, to represent employees at the Argyle Diamond Mine Project in the Kimberley District of Western Australia. Section 142A(1) provides:

"The Commission may, on the application of an
organization, an employer, the Minister or the
Bureau, if it thinks it in the public interest to do so, make an order providing that an organization of employees shall have the right to represent, in respect of all or some industrial interests under this Act, a class or group of employees who are eligible for membership of the organization, either generally or subject to such limitations as it may specify, to the exclusion of another organization or organizations and may make such orders as it thinks necessary in consequence of such an order."
On 3 May 1984 the Transport Workers' Union of Australia ("the T.W.U.") applied to the Conciliation and Arbitration Commission for an order under s.142A(1) that it should have the right to represent, to the exclusion of the Australian Workers' Union ("the A.W.U."), the employees described as follows in the schedule to the application:

"All employees performing the following work at the Argyle Diamond Mine Project in Western Australia:-

(a) The transport of soil, rock or ore by vehicles or other mechanically-propelled contrivances;

(b) the transport of persons, goods, wares or merchandise;

(c) driving of any kind, and the work of assistants to any driver or conductor;

(d) yard and garage cleaning and other work in connection with driving and transport, including washing, greasing, oiling, cleaning, polishing, tyre fitting and general attendance on mechanically-propelled vehicles and mechanical contrivances;

(e) loading and unloading on to and/or from any vehicle;

(f) ploughing in conjunction with the construction and excavation of earthworks."

On 31 May 1984 the A.W.U. applied to the Commission for an order that it should have the right to represent, to the exclusion of the T.W.U., the classes or groups of employees described in the schedule to the application as follows:

"All employees engaged or to be engaged in or in connection with the following work at the Argyle Diamond Mine Project in Western Australia:-

1. (a) The transport of soil, rock or ore by vehicles or other mechanically propelled contrivances;

(b) The transport of persons, goods wares or merchandise;

(c) Driving of any kind, and the work of assistance to any driver or conductor;

(d) Yard and garage cleaning and other work in connection with driving and transport, including washing, greasing, oiling, cleaning, polishing, tyre fitting and general attendance on mechanically propelled vehicles and mechanical contrivances;

(e) Loading and unloading onto and/or from any vehicle;

(f) Ploughing in conjunction with the construction and excavation of earthworks.

2. Construction of the mines, treatment plants and ancilliary work and facilities.

3. The production operations."

2. The applications were heard together by a Full Bench of the Commission which, after hearing evidence and inspecting the site, announced its decision on 5 November 1984. The members of the Commission rightly considered that a critical question was whether each applicant union had the constitutional capacity to enrol as its members employees of the class or group specified in the schedule to its application. That question depended on the proper construction of the rule of the union which laid down the conditions on which a worker would become eligible for membership of the union, and on the application of the rule to the circumstances of the employment. The Commission held that the eligibility rule of the T.W.U. covered all the work specified in the schedule to the T.W.U.'s application. In relation to the A.W.U.'s application, however, the Commission drew a distinction. The work at the Argyle Diamond Mine Project consisted of a number of activities which were managed by Argyle Diamond Mines Pty. Ltd. and which, for the purposes of the matters before it, the Commission regarded as falling into two distinct categories. First, there was the work of constructing the mine (including the construction of access roads) and the conduct of the mining operations. Secondly, there was the work of constructing and operating the plants in which the ore recovered by the mining operations was treated to enable the diamonds to be recovered from the ore. The Commission held that employees engaged in the second class of operations were eligible to be members of the A.W.U. but that employees engaged in the first class of operations (viz., the construction of the mine and the actual mining) were not so eligible. The Commission rejected a separate submission that employees of Roche Brothers Pty. Ltd. (a company which had a contract with Argyle Diamond Mines Pty. Ltd. for prestripping, i.e. excavating, the mine and constructing access roads) who were engaged in the construction of the access roads to the mine were eligible to join the A.W.U.

3. The Commission, having made these critical findings, then considered what order it should make under s.142A. For reasons which it gave, it was satisfied that it would not be in the public interest to make any order in favour of the T.W.U. and that in the public interest an order should be made providing that the A.W.U. should have the right to represent the classes or groups of employees engaged in or in connexion with so much of the work described in par.(1) of the schedule to its application as is performed in or in connexion with the construction of treatment plants and ancillary work and facilities and in the production operations at the treatment plants. For reasons which do not now concern us, the Commission held that there was no power to make an order in favour of the A.W.U. in respect of the work described in pars.(2) and (3) of the schedule to the application, notwithstanding that some employees doing that work were eligible to join the A.W.U.

4. On 29 August 1985 the T.W.U. obtained an order nisi for a writ of prohibition, directed to the members of the Full Bench, the A.W.U. and the various employers, prohibiting them from proceeding further in the matter of the A.W.U.'s application, and for a writ of certiorari directed to the members of the Full Bench, quashing the order made on 5 November 1984 in that matter, on the ground that employees engaged on the construction of the treatment plants and ancillary works and in production operations at the treatment plants are not eligible for membership of the A.W.U. On 30 November 1984 Argyle Diamond Mines Pty. Ltd., Minpro Pty. Ltd. (which, as will be seen, was undertaking alluvial mining under contract with Argyle Diamond Mines Pty. Ltd.) and Roche Brothers Pty. Ltd. obtained an order nisi for a writ of mandamus directed to the members of the Commission requiring them to hear and determine the two applications under s.142A and a writ of certiorari quashing those parts of the decision in which it was held that employees engaged on construction of the mine or mining operations, and employees engaged by Roche Brothers Pty. Ltd. in excavation work and in the construction of roads at the site of the mine, are not eligible to become members of the A.W.U. The substantial ground on which these writs were sought was that it was erroneous to hold that the employees mentioned were not eligible to join the A.W.U.

5. The questions raised by both orders nisi depend on the meaning and application of the eligibility rule of the A.W.U. It is unnecessary to set out that rule in full. So far as may be material for present purposes, it reads as follows:

"Subject to these rules, every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely: ... road making, water and sewerage, ... metalliferous mining, smelting, reducing and refining of ores including all workers engaged in or in connection with dredging or sluicing work, mining for brown coal including the extraction of the by-products; ... the prospecting, surveying, exploration and drilling for minerals and metals (except as to members of organisations in the shipping industry) ... stone quarrying ... shall be entitled to become and remain members of the Union ... "

The rule also contains the following sub-rule:

"(3) Without limiting the generality of the foregoing or being limited in any way by the foregoing every bona fide worker employed in or in connection with the industry or calling of either or both catering and cleaning for or at premises provided for persons working in or in connection with any of the following industries or callings:

road construction,

water and/or sewerage works construction, railway construction, metalliferous mining, reducing of ores,

... "

6. The mine at the Argyle Diamond Mine Project is an open cut mine. The diamonds are extracted from a pipe (or ore body) of lamproite. After the overburden has been removed, the ore body is drilled and blasted and the ore thus detached is then loaded onto large trucks and carried to a crushing plant. After it has been crushed in a primary, and then in a secondary, crusher, it is stockpiled. From the stockpile the ore is taken by a conveyer to a processing plant, where it is scrubbed, screened for size, crushed again if necessary and then put into a heavy media separation plant, where by a process of gravity separation the diamond bearing material ("the sinks") which has a comparatively high specific gravity is removed from the remaining "floats" which have a lower specific gravity. Finally, the diamond bearing concentrate from the heavy media separation plant is transferred to a recovery plant, which uses x-ray machines which cause the diamonds to fluoresce; this fluorescence is detected by photo-cells which activate air valves which eject the diamonds. This brief description omits some of the complexities of the process but it is enough to show that the diamonds are recovered by physical means only; no treatment by chemicals is involved except in the final cleaning of the diamonds. From about 9,000 tonnes of lamproite mined each day, there are extracted about 70,000 carats, or fourteen kilograms, of diamonds; in other words, the diamond content is less than 1/600,000th part of the lamproite. It would be uneconomic to transport so large a quantity of ore over a long distance, and it is therefore regarded as important that the treatment plants should be near to the mine. The activities at the Project are co-ordinated in an endeavour to ensure that there are produced each year no more diamonds than are necessary to supply the market, which is strictly controlled.

7. Diamonds are also recovered from alluvial deposits, which are loaded onto trucks and taken to an alluvial processing plant, where they are treated in much the same way as the lamproite is treated; the main difference is that the alluvial deposits do not need crushing. The operations of mining and processing the alluvial deposits are carried out by Minpro Pty. Ltd. It seems that this alluvial mining is being phased out.

8. The project necessarily involved the removal of a great deal of overburden from the open cut and the construction of substantial roads which were essential to enable the ore to be removed from the ground and to be conveyed for treatment. The work of road construction was carried out by Roche Brothers Pty. Ltd. Their contract has ceased, but it is probable that some roads will need to be constructed in the future - that is likely to be done, so far as at present appears, by Argyle Diamond Mines Pty. Ltd. itself.

9. It was common ground that the diamond mining is not "metalliferous mining". It is then convenient to consider whether the employees engaged in the treatment of the ore, i.e. in the process from the time the ore is placed in the primary crusher until the time when the diamonds are finally recovered, are engaged "in or in connection with ... reducing and refining of ores" within the meaning of the eligibility rule of the A.W.U. The Commission answered that question in the affirmative, and the correctness of the answer is challenged by the T.W.U. in its application for prohibition and certiorari. It was not disputed by the T.W.U. that the phrase "reducing and refining of ores", read in isolation, is capable of referring to the process carried out in the treatment plants, which involves a very large reduction in the physical sense in the volume of the ore and the separation of the diamonds from the dross. Rather it was submitted that the expression is ambiguous and that, in the context in which it appears in the eligibility rule, it should be given the meaning, which in any case is said to be the more common one, of a chemical process by which compounds of a metal are reduced to the metal itself and the metal is then purified. This construction was, it was submitted, supported by the history of the rule. In 1917, the words "metalliferous mining smelting of ores" were first inserted into the eligibility rule. In 1919 the rule was amended to make the phrase read as it does today, i.e. "metalliferous mining, smelting, reducing and refining of ores". The ground on which the amendment was sought and granted was stated in the application for the amendment to be that "many members of the said Organisation are now and have been for some considerable time engaged as employees in and in connection with the reducing and refining of ores which occupations though connected with smelting involve additional processes not strictly covered by that description".

10. The construction of the rule for which the T.W.U. contends is not supported by the words of the rule itself. The word "metalliferous" qualifies only "mining"; it cannot, without a complete distortion of syntax, qualify "reduce and refine" or "ores". Moreover, even if it were right to confine the word "smelting" to a process designed to extract a metal from its ore, the word "ore" itself is not confined to metallic ores. There are non-metallic ores, such as graphite and emery, as well as those containing precious stones. The words of the rule in their natural and grammatical sense denote a process by which ore, whether metalliferous or non-metalliferous, is reduced and refined.

11. The conclusion reached by the Commission that the process at the treatment plants can properly be regarded as the "reducing and refining of ores" was supported by a body of evidence, which the Commission accepted, as to the common understanding, among persons concerned with the processing of minerals, of the meaning of that expression. A decision of the Commission as to the construction of an eligibility rule based on such evidence is entitled to due weight, although it is not conclusive: see Reg. v. Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402, at p 411 and Reg. v. Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415, at p 430.

12. The history of the amendments, to which reference has already been made, is not such as to justify a departure from the ordinary meaning of the words of the rule. It may well be that in 1919 the ores which the members of the union were employed to reduce and refine were all metallic ores. However, although the purpose which activitated those who sought an amendment of the rule in 1919 might have been satisfied if the rule had been restricted to metallic ores, it does not follow that the rule should be given that narrow construction. It may be accepted that an expression in the eligibility rules of a union is intended to have a wide meaning (see Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, at p 587) and is intended to cover any industries or callings which may in future fairly come within the description which it contains even if those industries or callings were unknown when the rules were drafted. Moreover, sub-rule (3), which was apparently inserted in the rules in consequence of the decision of this Court in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266; 11 ALR 449, provides an indication, however slight, that "metalliferous mining" and "reduction of ores" were intended to be separate categories of industries or callings.

13. The Full Bench was therefore right in concluding that the persons engaged in the operations in the treatment plants were engaged in "reducing and refining of ores" within the meaning of the eligibility rule of the A.W.U. Once that conclusion is reached, it can hardly be doubted, in the light of the decisions in Reg. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 and Reg. v. Coldham; Ex parte Australian Workers' Union that the workers employed in the construction of the treatment plants and works and facilities ancillary thereto were employed in connexion with the reduction and refining of ores. The construction of those plants and the ancillary works and facilities was very closely related to the operations carried out in the plants - indeed, on the view taken in Reg. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia, at p 477, it was an integral part of those operations.

14. For these reasons the order nisi granted to the T.W.U. must be discharged. It is unnecessary to consider the objection raised on behalf of the A.W.U. that the application for certiorari made by the T.W.U. was out of time under O.55, r.17(1) of the High Court Rules.

15. It is then necessary to consider the second order nisi, and whether the Commission was correct in drawing a distinction between the work done in the treatment plants (from the time when the ore entered the primary crusher) and that done in constructing and operating the mine itself. The Commission rejected the argument that workers engaged on the construction of the mine (including the roads) or in the mining of the pipe were engaged in labour in or in connexion with the reducing or refining of ores. They said that they were convinced as a result of the inspections and evidence that the primary and predominant purpose of the activity at the Argyle Diamond Mine Project was to be the mining of the pipe and that the treatment of the ore was to be ancillary to the mining operations. They said:

"The processing and treatment operations commencing with the primary crushing flow directly from and are dependent upon the mining operations. However the reverse is not the case, as the mining could be carried out entirely independently of any reducing and refining operations within the treatment plant. The treatment plant could technically be located in an entirely different area. The same cannot be said of the mining operations."

16. Mr Ryan, for the T.W.U., placed particular reliance on this finding, which he submitted was a finding of fact and should not be disturbed. He submitted that it was right to apply the test of what was the primary and predominant purpose for which the workers were employed. In support of that submission he cited a decision of the Commission in Cliffs Robe River Iron Associates v. The Seamen's Union of Australia (1974) 185 CAR 529, where it was held that men employed by a mining company were not employed as seamen although, as a subordinate part of their employment, they sometimes worked on tugs. The decision in that case throws no light on the question now before us. A decision of the question whether a particular description fits an industry or calling involves matters of degree, and the answer may depend on the "substantial character" of the activities carried on: Reg. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia, at pp 483-485, and cases there cited. That does not mean that if the enterprise has two purposes, it is necessary to decide which is predominant. It is quite possible that an industry or calling can accurately be described in a number of ways, and the fact that it comes within one description does not mean that it cannot also come within another. For example, in Reg. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia, some of the workers concerned were engaged in road making, as well as in or in connexion with metalliferous mining: see per Jacobs J. at pp.478-479. In the same case, Aickin J. said, at p.483:

"It does not, in my opinion, follow from the fact that it may be said that an employer is engaged in construction work that he may not also properly be regarded as engaged in activities in or in connexion with metalliferous mining."

The fact that the employees engaged to construct and work the mine at the Argyle Diamond Mine Project are quite clearly engaged in labour in or in connexion with mining does not necessarily mean that they are not engaged in or in connexion with "reducing and refining of ores".

17. The words "in connection with" in an eligibility rule connote a relationship between the work of the employee and the industry or calling in question. It is not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker. Thus it has been held that workers employed to produce coke from coal, in a business of iron and steel manufacturers, were not employed in or in connexion with the coal and shale industry: R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1921) 29 CLR 290, especially at pp 297, 302. Similarly, workers who produced the coal in those circumstances could not have been said to be employed in or in connexion with the iron and steel industry (cf. Reg. v. Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77, at p 95). The question is one of fact and depends on all the circumstances of the case. In the present case there was one co-ordinated project carried on at one place in Western Australia. The whole project was managed by Argyle Diamond Mines Pty. Ltd. There was a close physical proximity between the mine and the primary crusher which formed the part of the treatment works to which the ore was first taken. This proximity was neither contrived nor adventitious - it was necessary, for the economical operation of the project, that the large quantities of ore, containing only a small proportion of diamonds, should not be carried any further than was necessary. In this respect the statement by the Commission that the treatment plant could technically have been located in an entirely different area, although perhaps literally true, is incorrect from a practical point of view. Further, it is difficult to agree with the conclusion that the primary and predominant purpose of the activity was the mining of the pipe. It could with equal truth be said that the primary and predominant purpose of the project was the production of diamonds, by mining the ore and reducing and refining it. There was a very close relationship between the construction and working of the mine and the reducing and refining of the ore. The fact that some of the work in excavating the mine and building the access roads was done by contractors does not prevent the work done in carrying out those activities from being connected with the reducing and the refining of the ores.

18. Although it is not always useful to compare the facts of one case with those of another, the decision in R. v. Central Reference Board; Ex parte Thiess (Repairs) Pty. Ltd. (1948) 77 CLR 123 provides some assistance. That case was decided on the National Security (Coal Mining Industry Employment) Regulations and the question simply was whether the workers were employed "in the coal mining industry" - not whether they were employed "in or in connection with" that industry. The facts were that a company conducted open cut coal mining operations on land adjacent to an engineering shop conducted by another company. The engineering shop was used to effect all major repairs for the machinery at the mine although it did some other general engineering work as well. Dixon J., who dissented, thought that the work carried out by the engineering shop was done in the coal mining industry. He relied on the following matters: the operations were under one control and management, the proximity of the two enterprises, the fact that the repair and overhaul of the mining machinery was the purpose of setting up the shop and the convenience of having the repairs, which were essential to the mining operation, done in that way: see at p.141. The majority took a different view, but Latham C.J. said, at p.134:

"The two companies are, it is true, 'closely associated' in general control, management, and a common dependence upon the continuance of work at the open cut. But the fact that enterprise A is 'closely associated' with enterprise B does not in itself establish either that enterprise A is engaged in the same industry as B or that enterprise B is engaged in the same industry as A."

It appears to be implicit in these remarks that although one enterprise was not the same as the other, it was closely connected with it.

19. It was further submitted that even if the work done in the construction and operation of the mine was done in connexion with the "reducing and refining of ores" in the ordinary meaning of those words, the context of the rule shows that the scope of the words should be restricted to prevent an inconsistency with other parts of the rule. The rule expressly refers to "metalliferous mining" and to "mining for brown coal" and it is clear enough that mining for minerals which are neither metals nor brown coal is not an industry within the scope of the rule. It is said that this provides an indication that work done in the mining operations in the present case should not be regarded as done in or in connexion with one of the industries or callings mentioned in the rule. If the rule referred only to labour "in" the specified industries and callings, there might be some force in the argument that the description of one branch of an industry (e.g., "metalliferous mining") provides an indication that labour in other branches of the same industry (e.g., diamond mining) was not intended to be covered by words elsewhere in the rule. However, labour "in connection with" the named industries is included and it is apparent that this very considerably widens the scope of the rule. Moreover, rules of this kind bear on their face the evidence of the fact that they have not been prepared by skilled legal draftsmen. The industries and callings to which they refer sometimes overlap. The rules should not be restrictively construed: see Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at p 73.

20. For these reasons the Commission took too narrow a view of the effect of the eligibility rule. The workers employed in the construction and operation of the mine were employed "in connection with ... the reducing and refining of ores". A mandamus should issue requiring the members of the Full Bench to hear and determine the application made by the A.W.U. in accordance with law. It seems unnecessary to grant a mandamus requiring the Full Bench to hear and determine the T.W.U.'s application, which the Commission refused on discretionary grounds which do not concern us. It is also unnecessary in the circumstances to consider whether Roche Brothers Pty. Ltd. had any locus standi to join in the application for the order nisi.

21. The order nisi granted to the T.W.U. in Matter No. M44 of 1984 should be discharged.

22. In Matter No. M79 of 1984 the order nisi for a writ of mandamus and a writ of certiorari should be made absolute.

WILSON J.: Argyle Diamond Mines Pty. Ltd. ("ADM") is the manager of a joint venture established to undertake the development, mining and processing of diamond bearing deposits in the Argyle and Ellendale areas of Western Australia. The project contemplated a development programme carried out in two stages. The first stage embraced the short-term mining and processing of alluvial ore deposits found in the area of Smoke Creek and Limestone Creek about ninety kilometres south of Kununurra. The second stage embraces the long-term mining and processing of a body of olivine lamproite ore, sometimes described as kimberlite ore, known as the Argyle Pipe. This deposit is located upstream from Smoke Creek and is the source of the alluvial deposits. Minpro Pty. Ltd. has undertaken the mining and mineral processing operations associated with the alluvial deposits but those operations were due to be completed during 1985. The Court was informed in the course of the hearing in October 1985 that they had not then been concluded. Furthermore, fresh alluvial deposits may be found at some time in the future. It is not clear from the materials before the Court whether Minpro Pty. Ltd. will have any continuing involvement in the project.

2. The second stage required, inter alia, the establishment of a treatment plant. That plant necessarily had to be located as close as practicable to the ore body because of the high ratio of waste to diamonds in commercial diamond mining. It would not be economic to move large quantities of untreated ore any considerable distance from the mine site. An engineering feasibility study established that the plant would be required to process 9,000 tonnes of ore each day in order to produce approximately 70,000 carats of diamonds, weighing about fourteen kilograms. The evidence is that the construction of the plant adjacent to the Argyle Pipe is fundamental to the success of the project.

3. In 1983 Roche Brothers Pty. Ltd. entered into a contract to expose the Argyle Pipe by removing some eight million cubic metres of overburden and to construct the necessary access roads into the mine and between the mine and the primary crusher plant and to the processing plant. Approximately 4.4 million cubic metres of this overburden was to be utilized in providing fill for permanent roadways and the remainder was to be placed in dumps. The Court was informed that this contract was completed in September 1985, with the consequence that Roche Brothers Pty. Ltd. have no present connection with the project. This may affect its continued standing as a party to the present proceedings but this is of little moment to a consideration of the issues because the Commission was asked by ADM to rule on coverage of those of its workers who will be engaged in the future on road maintenance and realignment.

4. On 3 May 1984 the Transport Workers' Union of Australia ("TWU") made an application to the Conciliation and Arbitration Commission ("the Commission") for an order in accordance with s.142A of the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act") granting the TWU the exclusive right to represent, in respect of all industrial interests under the Act, the following employees:

"All employees performing the following work at the Argyle Diamond Mine Project in Western Australia:-

(a) The transport of soil, rock or ore by vehicles or other mechanically-propelled contrivances;

(b) the transport of persons, goods, wares or merchandise;

(c) driving of any kind, and the work of assistants to any driver or conductor;

(d) yard and garage cleaning and other work in connection with driving and transport, including washing, greasing, oiling, cleaning, polishing, tyre fitting and general attendance on mechanically-propelled vehicles and mechanical contrivances;

(e) loading and unloading on to and/or from any vehicle;

(f) ploughing in conjunction with the construction and excavation of earthworks".

5. Later that same month the Australian Workers' Union ("AWU") also made an application under s.142A of the Act, seeking the exclusive right to represent the following employees:

"All employees engaged or to be engaged in or in connection with the following work at the Argyle Diamond Mine Project in Western Australia:-

1. (a) The transport of soil, rock or ore by vehicles or other mechanically propelled contrivances;

(b) The transport of persons, goods wares or merchandise;

(c) Driving of any kind, and the work of assistance to any driver or conductor;

(d) Yard and garage cleaning and other work in connection with driving and transport, including washing, greasing, oiling, cleaning, polishing, tyre fitting and general attendance on mechanically propelled vehicles and mechanical contrivances;

(e) Loading and unloading onto and/or from any vehicle;

(f) Ploughing in conjunction with the construction and excavation of earthworks.

2. Construction of the mines, treatment plants and ancilliary work and facilities.

3. The production operations".

6. Each of these applications was referred to a Full Bench of the Commission and they were heard together. The Commission inspected the location, conducted hearings over a number of days in June, July and August 1984 and delivered its decision on the two applications on 5 November 1984. The Commission considered the constitutional coverage of each of the applicant organizations in respect of the workers sought to be the subject of an exclusive order under s.142A, recognizing as a keystone of the power conferred by that section the eligibility for membership of the organization of the class or group of employees sought to be represented. It found that all the classes or groups of employees specified in the application of the TWU were eligible for membership of that organization. However, in relation to the application of the AWU, the Commission found that employees engaged on construction or production work at the mine site were not eligible to belong to the applicant organization. Consistently with this finding, having determined in the public interest that the AWU should be given exclusive coverage of those workers whom it was constitutionally competent to enrol as members, it made an order under the section in respect of such classes or groups of employees engaged or to be engaged at the Argyle Diamond Mine project on the work specified in paragraph 1 of the AWU's application, in so far as such work is performed in respect of the construction of the treatment plants and ancillary work and facilities and in respect of production operations at the treatment plants. The order did not extend to work performed in connection with the mine site or in the construction of access roads to the mine site.

7. The Commission declined to make any order in favour of the TWU.

8. Following this decision, two orders nisi were made by Dawson J. The first was made on the application of the employers, ADM, Minpro Pty. Ltd. and Roche Brothers Pty. Ltd., and called on the members of the Commission, the AWU and the TWU to show cause why writs of mandamus and certiorari should not issue to the Commission on the ground that it had erred in construing the eligibility rule in the AWU's constitution so narrowly as to exclude from the order under s.142A work performed in connection with the mine site and the construction of access roads to the mine site. I shall refer to the prosecutors in this application as "the employers". The second order nisi was made on the application of the TWU and seeks the issue of writs of prohibition and certiorari to the Commission on the ground that none of the workers the subject of the Commission's order under s.142A were eligible for membership of the AWU.

9. The issue in both proceedings therefore focuses on the proper construction of the membership rule in the constitution of the AWU. The TWU argues that the Commission construed it too widely. The employers argue that the Commission did not construe it widely enough.

10. So far as material, the rule reads as follows:

"6(1) Subject to these rules, every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely ... road making, water and sewerage ... all persons engaged in or in connection with ... metalliferous mining, smelting, reducing and refining of ores including all workers engaged in or in connection with dredging or sluicing work ... and all kinds of general labour ... shall be entitled to become and remain members of the Union

...

...

(3) Without limiting the generality of the foregoing or being limited in any way by the foregoing every bona fide worker employed in or in connection with the industry or calling of either or both catering and cleaning for or at premises provided for persons working in or in connection with any of the following industries or callings:

road construction, water and/or sewerage works construction, railway construction, metalliferous mining, reducing of ores,

throughout Australia ... ".

11. As a matter of history, sub-rule (3) was inserted in 1979 following the decision of this Court in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266; 11 ALR 449 to the effect that workers employed by a catering contractor in the supply of catering and cleaning facilities to persons working on a mine site were not themselves employed in or in connection with metalliferous mining.

12. No question is raised in argument concerning the jurisdiction of the Court to review the decision of the Commission. Notwithstanding the provisions of s.60 of the Act, the provisions of s.142A make it plain that the question of eligibility for membership requires a finding of jurisdictional fact which cannot be conclusively determined by the Commission: Reg. v. Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation (1981) 147 CLR 471, at pp 488-489; Reg. v. Coldham; Ex parte Australian Workers' Union ("the Worsley Case") (1983) 153 CLR 415, at p 419.

13. It is argued for the employers that the Commission, having rightly found that ADM is engaged in Argyle in the industry of reducing and refining of ores, should have found that all the activities carried on at the site were carried on in or in connection with that industry. Those activities included the construction of the mine, the removal and dumping of overburden, the construction and maintenance of access roads and ultimately the actual operation of extracting, loading and transporting the ore to the treatment plants. Alternatively, it is argued that the employees of Roche Brothers Pty. Ltd. should have been held to be engaged in or in connection with the industry of roadmaking within the meaning of the eligibility rule. The AWU supports these submissions. It is common ground among all parties that the mining of the Argyle Pipe does not fall within the meaning of the term "metalliferous mining" in the rule.

14. In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve. The rule now in question bears ample indication on its face that it has been prepared without the assistance of a skilled draftsman. It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole. It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction: Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, at p 587; Reg. v. McKenzie; Ex parte Actors and Announcers Equity (1982) 148 CLR 573, at p 576. Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents: Reg. v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654, at p 659; McKenzie, at p 576.

15. Before the Commission, as in this Court, the employers sought to draw support for their main submission from two decisions of this court, both of which turned on the construction of the membership clause in the constitution of the AWU. The first was Reg. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 ("the Uranium Mining Case"). In this case the Court held that project consulting engineers engaged by mining companies to design and supervise the construction of various works associated with the development of certain uranium mines in the Northern Territory were engaged in activities in or in connection with metalliferous mining. Consequently, the AWU had standing to raise a dispute between itself and the engineers in respect of the wages and conditions of employment of the workers whom they were to employ. The scope of the works involved in the construction stage is described by Jacobs J. at p.476:

"At each mining site there will be constructed extensive works including a concentrator, tailings dam, retention pond, administration buildings, explosives magazine and housing areas. In addition, at Jabiru and Jabiluka an acid plant and power-house are to be constructed. Roadworks water and sewerage works and wharves with loading facilities will be constructed and a township will need to be built".

The argument that the construction work proposed to be undertaken by the project engineers was not work in or in connection with the industry of metalliferous mining was summarily rejected by his Honour with the terse comment, at p.477:

"Nothing could be more closely related to metalliferous mining than constructing or having constructed a metalliferous mine and its ancillary works. It is an integral part of the mining operation".

Likewise, Aickin J., at p.485, concluded that the activities of the project engineers were themselves part of the business of metalliferous mining, or at the very least they were in connection with that industry. Barwick C.J. agreed with Aickin J., Stephen J. agreed with Jacobs J. and Gibbs J. agreed with both Jacobs J. and Aickin J.

16. The second decision of the Court upon which the employers rely is the Worsley Case. This case, like the Uranium Mining Case, concerned the meaning to be given to the phrase "metalliferous mining" in the membership rule of the AWU. The majority of the Court noted the wide connotation which had been given in the earlier case to the reference to the industry of "metalliferous mining" with the result that it

"encompassed not only the actual process of mining and treating minerals but also the preliminary construction of mine, treatment plant and associated facilities before the extraction of minerals commenced" (p.431).

The Worsley Case concerned workers engaged in construction work on a bauxite extraction and refining project. The work involved at the mine site included the construction of offices, workshops and amenities buildings, sewerage tanks, fencing and roads. At the refinery site, it included the construction of similar buildings and facilities and of a power plant, refinery tanks, waterworks, railway sidings, bridges and pipe racks. The refinery site was located fifty kilometres from the mine site and a conveyor belt connecting the two sites was to be constructed.

17. The employers argue that the same width of meaning which in the Uranium Mining Case and the Worsley Case was accorded to the concept of "in or in connection with ... metalliferous mining" should be applied to the industry of reducing and refining of ores. The Commission having rightly accepted that the word "ores" is not governed by the word "metalliferous" and that so far as its planned ore processing activities are concerned ADM is engaged in the industry of reducing and refining of ores, it is submitted that the Commission should have gone on to find that all the preparatory work including the construction of the mine, the removal and dumping of overburden and the construction of the necessary roads, together with the actual operations of extracting, loading and transporting the ore to the treatment plants and maintaining the site, was work in or in connection with the industry of reducing and refining of ores. Everything that is done on the site is done with a view to, and for the purpose of, reducing and refining the lamproite ore. The connection, so it is said, is a direct one because each step is a step in the one industrial process. Furthermore, the physical connection between mining and processing is much closer at Argyle than it was in the Worsley Case. Finally, there is a greater capital expenditure involved in establishing and operating the treatment plant than in conducting the mining operations, a fact which the employers claim militates against the assignment of a subsidiary role to the former.

18. The Commission was unable to accept the employers' argument, and stated its reasons as follows:

"We cannot accept this argument. We agree that at Worsley the connection between the refining and the mining operations is somewhat remote and we have difficulty in understanding the concept that construction employees at the refining site performed work in or in connection with the distant mining operations at Saddleback. We accept the view that the physical connection between mining and processing at Argyle is a closer one. However, in this case, the processing operation is not an integral part of mining in the sense of the term 'integral' used by Jacobs J. in the Uranium Mining Case (p.477). In both the Uranium Mining Case and the Worsley Case the whole emphasis was on mining which was treated as the primary operation. Regardless of the respective amounts of capital investment in the mine and the treatment plant we are convinced as a result of the inspections and evidence that the primary and predominant purpose of the activity at Argyle is to be the mining of the kimberlitic pipe and that treatment of the ore will be ancillary to the mining operations. The processing and treatment operations commencing with the primary crushing flow directly from and are dependent upon the mining operations. However the reverse is not the case, as the mining could be carried out entirely independently of any reducing and refining operations within the treatment plant. The treatment plant could technically be located in an entirely different area. The same cannot be said of the mining operations. The Uranium Mining and Worsley cases are authority for the view that the construction of the mines and ancillary treatment plants come within the scope of metalliferous mining. There is no warrant for extending these decisions any wider and we are not prepared to do so. Accordingly we find that there is no basis for holding that employees engaged on construction of the mine or in the mining of the kimberlitic pipe are engaged in labour in or in connection with the reducing and refining of ores".

19. A decision of the Commission on the construction of words in the provisions concerning eligibility for membership of a registered organization will ordinarily carry considerable weight, particularly where questions of fact and usage are involved: Reg. v. Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402 ("the Steel Towers Case"), at p.411; the Worsley Case, at p.430. The present case, however, does not seem to me to be a case in which the decision to limit the extent of the order under s.142A turns on a determination of disputed questions of fact. The primary facts are not in dispute. Nor do questions of industrial usage appear to have weighed with the Commission. As has been said, the construction of the rule is a question of law. In the Steel Towers Case, at pp.408-409, a joint judgment of six members of this Court stressed the importance in later cases of maintaining consistency with the considered views expressed by the Court in earlier cases as to the scope of particular eligibility provisions. In my opinion, the Uranium Mining Case and the Worsley Case afford guidance which should be heeded in the resolution of the present case.

20. With all due respect to the members of the Commission, I think the reasoning in the passage which I have cited from their reasons for judgment is open to question. First, in the Uranium Mining Case Jacobs J., at p.477, used the word "integral" to describe the relationship between the preparatory work of constructing a mine together with its ancillary works and the actual activity of metalliferous mining. He described that preparatory work of construction as "an integral part of the mining operation". In so doing his Honour was emphasizing his view that there was a sufficient connection for the purposes of the rule between construction work and the industry of metalliferous mining. To say of the present case that the processing operation is not an integral part of mining in the sense used by Jacobs J. is to express a conclusion which is irrelevant. If the question was whether the processing operation was carried on in or in connection with the work of mining the Argyle Pipe there could be no doubt that the answer would be in the affirmative, whether or not that operation was thought to be an integral part of the mining operation itself.

21. Secondly, to look for "the primary and predominant purpose of the activity at Argyle" is to allow oneself to be diverted from the proper path of construction. The essential question is simply whether the workers in question are engaged in or in connection with any of the industries or callings described in the rule. Having identified a relevant industry, the question is as to the scope that is to be accorded to that industry in the circumstances of the case. Bearing in mind the nature and origin of the rule, I do not think it is a case where the scope that is to be accorded to one phrase in the rule is necessarily to be governed or affected by the presence of other words in the rule. Many of the industries described in the AWU's rule overlap and in my view the proper approach is to take each description of an industry as a separate entity to be given its ordinary meaning unless some specialized meaning arising from industrial usage is shown to apply. In other words, in the context of this rule I do not find assistance in applying the rule noscitur a sociis. Therefore it does not follow from the express inclusion in the rule of the industry of "metalliferous mining" that the intention of the rule is that workers engaged in other forms of mining are not eligible for membership of the union. The eligibility of such workers will depend upon the inclusion in the rule of another industry to which their work is sufficiently related. I find support for this view in the comment of Jacobs J. in the Uranium Mining Case when, after expressing his views on the connection between the construction work and the industry of metalliferous mining, his Honour said at pp.478-479:

"I would dismiss the application in respect both of prohibition and certiorari. I do not find it necessary to rely in reaching this result upon the fact that substantial parts of the works ancillary to the construction of the mines and processing plants consist of road-making and water and sewerage works and other works involving the use of many kinds of general labour, and that workers engaged in these works are on any view of the matter eligible to be members of the A.W.U." (my emphasis).

22. Thirdly, the Commission expresses the view that there is not the requisite connection between the mining operation and the treatment process because the former is not dependent on the latter. The Commission states that the mining could be carried out entirely independently of any reducing and refining operations which, technically speaking, could be located in an entirely different area. It is undoubtedly true that mining operations need not always be associated with the treatment of the ore so mined. One has only to reflect upon the huge quantities of iron ore that have been mined in the Pilbara region of Western Australia and exported in an untreated condition to be processed in Japan to realize the truth of that statement. But we are concerned with the eligibility of workers engaged and to be engaged in the Argyle operation. That there is some relationship in that operation between the treatment process and the mining of the ore cannot be doubted. The question is whether the connection is sufficiently close to satisfy the rule.

23. It must be observed that the present case is not covered precisely by the decisions in the Uranium Mining Case and the Worsley Case. Each of those cases was concerned with the industry of metalliferous mining and is authority for the proposition that construction work on a metalliferous mine and associated facilities, including treatment facilities, undertaken in preparation for mining is work in or in connection with the industry. The distinguishing feature of the present cases is that the industry under consideration is not the mining operation but the treatment process. No doubt it is easier to speak of the treatment of ore as an adjunct to or as consequential upon the winning of the ore itself and therefore to see it as ancillary to the mining process. But that may simply be because it is natural to focus on the point of commencement of the chain of operations. If one begins with the extraction of diamonds from the ore that has been mined and identifies the processes that lead to that result as the "industry" then why is not the uncovering and winning of the raw material from which the diamonds are to be extracted a work which is undertaken in or in connection with that industry? It cannot be a valid objection that the mining operation is anterior to the treatment process rather than consequential upon it.

24. In the Uranium Mining Case, Jacobs J. had no difficulty in finding a sufficient connection between metalliferous mining and the preparatory work of construction.

25. The cases establish that one may be employed in connection with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connection may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question. Just as the erection of houses for the workers who are to work the mines is work undertaken in connection with the industry of mining, notwithstanding that it precedes any mining, so is the preparation of the mine and the extraction of the ore undertaken by way of preparation before embarking on the work of reducing and refining that ore. There is an unbroken series of steps culminating in the production of diamonds, with each step logically connected to the next.

26. In my opinion, therefore, given that a wider construction of a rule such as the one with which we are concerned is to be preferred to a narrow construction, it does no violence to the words of the rule to conclude that all the work undertaken at Argyle by the classes of workers described in the AWU's application is undertaken in or in connection with the industry of reducing and refining of ores. The evidence supports such a conclusion. The large quantity of ore that must be mined in order to produce a small quantity of diamonds, the essential close proximity of the treatment plant to the mine and the disparate contributions of capital required to develop and operate the mine and the treatment plant respectively all point to the conclusion that the mining operations may not unreasonably be said to be in connection with the industry of producing the diamonds. The Commission may be correct in concluding that the primary and predominant purpose of the activity at Argyle is to be the mining of the "kimberlitic pipe" and that treatment of the ore will be ancillary to the mining operations. If the rule included a reference to the industry of mining that ore then no doubt the AWU would be entitled to a finding in its favour in respect of all workers employed on the site. But the fact that such an industry is not mentioned in the rule merely transfers the inquiry to the industry that is mentioned, the reducing and refining of ores. The rule, by referring to the industry of reducing and refining of ores, defines precisely, if not the primary and predominant purpose of the whole operation, the end result to which the entire Argyle operation is directed. This being so, it was within the jurisdiction of the Commission, if having regard to the public interest it thought fit to do so, to make an order under s.142A giving the AWU the exclusive right to represent all the workers referred to in its application including those involved in the construction of the mine and associated facilities and those who were to be involved in the mining and production of the ore.

27. In the light of this construction of the rule, it is unnecessary to consider the alternative submission of the AWU based on the industry of roadmaking.

28. This conclusion, of course, is subject to a consideration of the TWU's application. The TWU argues that it was beyond the jurisdiction of the Commission to make any order in favour of the AWU. The principal ground advanced in support of that submission is that on its proper construction the industry of "reducing and refining of ores" referred to in the membership rule of the AWU referred only to the reducing and refining of metalliferous ores and therefore was not apt to cover the processing of the lamproite ore at Argyle.

29. In my opinion, the submission is without merit and may be disposed of shortly. First, the phrase is expressed separately from the reference to metalliferous mining and to read it in the manner contended for by the TWU would be to ignore the plain and ordinary meaning of the words used. Secondly, so to read it would be to embark, gratuitously and contrary to all the authorities, on a restrictive rather than a generous interpretation. Thirdly, the Commission rejected the submission of the TWU on a consideration of technical evidence and in the face of arguments based on the history of the rule and in the circumstances its conclusion carries considerable weight.

30. It was also argued for the TWU that the phrase "reducing and refining of ores" referred only to chemical processes and that the treatment which is to be carried out at Argyle was not truly described as "reducing and refining". In rejecting the submission, the Commission relied upon evidence as to the conventional understanding of the terms "reducing" and "refining" in the mineral processing industry.

31. No reason has been advanced on behalf of the TWU which would justify this Court in setting aside the findings of the Commission on these matters.

32. I would therefore make absolute the order nisi obtained by the employers for writs of mandamus and certiorari and discharge the order nisi obtained by the TWU for writs of prohibition and certiorari.

BRENNAN J.: The Chief Justice and Wilson J. have set out the material circumstances and I need not repeat them. The basic question is whether the process carried out in the treatment plants of the Argyle diamond mine falls within the description "reducing and refining of ores" in the eligibility rule of the Australian Workers' Union ("the AWU"). If the process falls within that description, the application for prohibition made by the Transport Workers' Union of Australia ("the TWU application") must be dismissed and the application for mandamus and certiorari made by Argyle Diamond Mines Pty. Ltd. and others ("the Argyle application") must be considered; if the process does not fall within that description, the TWU application succeeds and the Argyle application must be dismissed. The answer to the question depends on whether "ores", the object of "reducing and refining", are only those ores which are won by "metalliferous mining" or whether "ores" includes diamond bearing ores which are not won by metalliferous mining.

2. The relevant part of the AWU eligibility rule reads as follows:

" every bona fide worker, ... engaged in manual or mental labour in or in connection with any of the following industries or callings, namely: ... metalliferous mining, smelting, reducing and refining of ores including all workers engaged in or in connection with dredging or sluicing work, mining for brown coal including the extraction of the by-products; ..."

The term "metalliferous mining" follows terms descriptive of the manufacture, etc. of bitumen and asphalt preparations. The term "metalliferous mining" introduces a new class of industry - mining, but not mining of all classes. Metalliferous mining only, followed later in the list of industries by "mining for brown coal". Between the two kinds of mining, there appear three processes for the treatment of ore and a reference to "dredging or sluicing work". Dredging and sluicing are methods of mining, though it may be that sluicing can be used as a means of reducing ores. The activities described as "dredging or sluicing work" are included in what goes before, that is, in "metalliferous mining, smelting, reducing and refining of ores". Those activities are treated as a group in which dredging and sluicing work are included. If the processes "smelting, reducing and refining of ores" were not elements of a group of connected activities but were discrete activities having no necessary connection with metalliferous mining, the words "including all workers engaged in or in connection with dredging or sluicing work" would be taken to relate to the item which they follow - "reducing and refining of ores" - rather than to "metalliferous mining" to which they relate primarily if not exclusively. No doubt each of the processes of smelting, refining and reducing is or may be a distinct process so that any person engaged in labour in or in connection with one of those processes is eligible for AWU membership, but the terms describing the processes are so placed as to imply a connection between them and metalliferous mining. That implication arises from the grouping of the processes of smelting, reducing and refining with metalliferous mining before the reference to dredging and sluicing and from the fact that mining is the winning of ore and the processes mentioned relate to the treatment of ore that has been won. This implication would have been more obvious in earlier times when the process of "smelting" was applied only to metalliferous ores, but nowadays the process can be applied to silicon which is not a metal.

3. The implied connection between the processes of smelting, reducing and refining on the one hand and metalliferous mining on the other is that the processes are steps in the treatment of ore won by metalliferous mining. I do not say that, as a matter of parsing, "metalliferous" qualifies "ores", but I am unable to regard the processes "smelting, reducing and refining of ores" as processes that have no necessary connection with "metalliferous mining".

4. Standing in isolation, the words "reducing and refining of ores" would be capable of describing the reducing and refining of ores howsoever won, but considered in their context, they are descriptive of processes that follow metalliferous mining. In my opinion, the better construction of the eligibility rule is that the processes of smelting, reducing and refining of ores are processes which follow the mining of those ores by metalliferous mining. I would not construe the phrase "reducing and refining of ores" as embracing the reducing and refining of ores which are not won by metalliferous mining.

5. It follows that a writ of prohibition should issue on the TWU application. The TWU does not press its claim for a writ of certiorari. In Matter No. M44 of 1984 the order nisi for a writ of certiorari should be discharged and the order nisi for a writ of prohibition should be made absolute. In Matter No. M79 of 1984, the order nisi for writs of mandamus and certiorari should be discharged.

DEANE J.: I agree, for the reasons which they give, with the orders proposed by the Chief Justice and by Wilson J.

DAWSON J.: I have had the advantage of reading the reasons for judgment of the Chief Justice and Wilson J. I agree with them and do not wish to add anything.

Orders

Order nisi for writs of prohibition and certiorari discharged.