Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees

[1994] HCA 34

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

RE ALCAN AUSTRALIA LIMITED AND OTHERS;

(1994) 123 ALR 193

25 August 1994

Industrial Law (Cth)

Industrial Law (Cth)—Industrial dispute—Union dues—Demand that employer deduct dues from employees' wages for remission to union Matters pertaining to relationship between employers and employees Industrial Relations Act 1988 (Cth), s. 4(1) "industrial dispute".

Orders

Application refused.

Decision

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ The Federation of Industrial, Manufacturing and Engineering Employees ("the Federation") is an organization of employees registered under the Industrial Relations Act 1988 (Cth) ("the Act"). It has members employed in the aluminium industry, including members employed by the respondents to this application.

2. In 1992, the Federation made two separate demands on the respondents with respect to the deduction of union dues. The demands were rejected and, in due course, the Federation notified the Australian Industrial Relations Commission ("the Commission") of the existence of a dispute. The notification was referred to a Full Bench of the Commission.

3. It was held by the Full Bench that the Commission was bound to apply the decision of this Court in Reg. v. Portus; Ex parte A.N.Z.
Banking Group Ltd. ((1) (1972) 127 CLR 353.) and that, in consequence, the Federation's demands did not give rise to an industrial dispute as defined in s.4(1) of the Act. The Federation now applies for mandamus and certiorari.

4. The Federation's first demand was that:

"An employer shall, at the request of or if authorised by an employee, each pay day deduct from the earnings of the employee an amount equivalent to the pro-rata union dues of the employee and send forthwith without reduction to (the Federation)."

The second demand was:

"... that ... the wages of every employee who elects to be (or becomes eligible now or in the future to be) a member of (the Federation) be increased by an amount equivalent to the pro-rata union dues of that employee. .... that an amount equivalent to such wages shall, if so directed by the employee, be sent each pay day without reduction to (the Federation)."

5. The case was conducted in this Court on the basis that the claim for a wage increase in the second demand is interdependent with the claim for deduction of union dues. If that is not the real position, the Federation is protected by the ruling of the Full Bench that it will hear the claim for a wage increase as a separate claim if the Federation or the respondents so require.

6. The Federation's first demand is similar to that considered in Reg. v. Portus. The demand in that case required employers to deduct union dues from the wages of employees who gave authority in that regard and to forward the amounts deducted to the association of employees to which they belonged. It was held that the claim did not concern "a matter pertaining to the relations of employers and employees" ((2) ibid. at 357-358 per Menzies J. See also at 357 per Barwick CJ, 365 per Walsh J, 372 per Stephen J) and did not give rise to an industrial dispute.

7. Reg. v. Portus was decided under the Conciliation and Arbitration Act 1904 (Cth) which defined "industrial dispute", in s.4(1), in terms of "a dispute ... as to industrial matters". "Industrial matters" was defined, in the same sub-section, as meaning "all matters pertaining to the relations of employers and employees" and as including, without limiting the generality of the earlier words, certain specific matters which were then set out. The specific matters did not, in terms, extend to the deduction of union dues and it was held in Reg. v. Portus that none of them covered that matter ((3) ibid. at 365, 369 per Walsh J See also at 370-371 per Stephen J).

8. It is clear that the judgments of Walsh J and Stephen J in Reg. v. Portus are based on the statutory definition of "industrial matters" in the Conciliation and Arbitration Act, rather than the
meaning of "industrial disputes" in s.51(xxxv) of the
Constitution ((4) ibid. at 361-362, 370. See also at 357 per Barwick CJ). And so, on analysis, is the judgment of Menzies J
(with whom Barwick CJ and McTiernan J agreed). His Honour's judgment was based ((5) ibid. at 358-360.) on that part of the decision in R. v. Kelly; Ex parte State of Victoria ((6) (1950) 81 CLR 64.) which dealt with the definition of "industrial matters" in the Conciliation and Arbitration Act ((7) ibid. at 83-85.). Menzies J proceeded from the premise ((8) See (1972) 127 CLR at 359.) that the effect of that case was to require something more than what was stated in the judgments of Isaacs and Rich JJ in Australian Tramway Employes Association v. Prahran and Malvern Tramway Trust ("the Union Badge Case") ((9) (1913) 17 CLR 680.) and in Federated Clothing Trades of the Commonwealth of Australia v. Archer ((10) (1919) 27 CLR 207.), "to the effect that an industrial dispute arises whenever employers refuse union or employee demands to do something that it is within the power of employers to concede and carry out" ((11) Reg. v. Portus (1972) 127 CLR at 358 per Menzies J See also at 365 per Walsh J). The last two cases concerned, respectively, the wearing of a union badge while on duty and the attaching of labels to finished garments to show that they had been produced by the manufacturer and not by a sub-contractor. It was held in each case that the dispute was an industrial dispute for the purposes of the Conciliation and Arbitration Act and, also, of s.51(xxxv) of the Constitution.

9. There were two issues in R. v. Kelly. The first was whether the award making power extended to the making of a common rule. The second and the one which bore on the question to be decided in Reg. v. Portus was whether award provisions governing the opening and closing hours of butchers' shops were provisions with respect to an industrial matter as defined in the Conciliation and Arbitration Act. As was the case when Reg. v. Portus was decided, "industrial matters" was defined as meaning "all matters pertaining to the relations of employers and employees" and as including specific subject matters. The subject matters did not extend to trading hours and, thus, the decision, so far as it concerned that issue, turned on the meaning of the statutory term "all matters pertaining to the relations of employers and employees" ((12) (1950) 81 CLR at 84.) which, it was held, required there to be a relation of "an employer as employer with an employee as employee" ((13) ibid.). This requirement was the "something more" to which Menzies J referred in Reg. v. Portus ((14) See (1972) 127 CLR at 359.) and on which his Honour's decision was based.

10. It was submitted for the Federation that Reg. v. Portus should not be followed, or, alternatively, that it should be reconsidered in the light of the present statutory definition of "industrial dispute" and the broader approach to s.51(xxxv) of the Constitution adopted in Reg. v. Coldham; Ex parte Australian Social Welfare Union ("the C.Y.S.S. Case") ((15) (1983) 153 CLR 297.). It was argued that the present definition and approach to s.51(xxxv) require the question whether a dispute as to the deduction of union dues is an industrial dispute to be answered by reference to the Union Badge Case and Archer's Case, rather than R. v. Kelly and Reg. v. Portus, which last two cases, it was said, involved a "more restrictive approach". At times, the argument proceeded as if there were no or no practical difference between the present statutory definition of "industrial dispute" and the meaning to be given to "industrial disputes" in s.51(xxxv) of the Constitution.

11. It is convenient, before turning to the Act and its definition of "industrial dispute", to consider the meaning of "industrial disputes" in s.51(xxxv) of the Constitution. It is now settled that the words of s.51(xxxv) are to be given their popular meaning, with the consequence
that the question whether a dispute is an industrial dispute is essentially a question of fact ((16) ibid. at 312.). It was pointed out in the C.Y.S.S. Case that "the popular meaning of 'industrial disputes' includes disputes between employees and employers about the terms of employment and the conditions of work" ((17) ibid.). But its popular meaning is not confined to disputes of that kind. And although most industrial disputes, in the popular meaning of the expression, concern matters that pertain to the relations between
employers and employees, that is not always so. For example, demarcation disputes fall within the popular meaning of "industrial disputes", even though "difficult to fit into the concept of the employer-employee relationship" ((18) Reg. v. Portus (1972) 127 CLR at 371 per Stephen J See, as to demarcation disputes falling within the popular meaning of industrial disputes, R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Australian Paper Mills Employees' Union (1943) 67 CLR 619 at 631; the C.Y.S.S. Case (1983) 153 CLR at 312-313.).

12. Material was presented to the Court on behalf of the Federation to show that the deduction of union dues or "the check-off system", as it is sometimes called, is or is becoming an established feature of the industrial relations systems of many countries, including the United States of America. The material also shows that the topic has, from time to time, engaged the attention of the Governing Body Committee on Freedom of Association of the International Labour Office. As well, there was material to show that, in Australia, many employers, including the Commonwealth Government, have, at various times, entered into arrangements, for the deduction and transmission of union dues. Indeed, there was evidence before the Commission of arrangements between the Federation and employers in the aluminium industry, including some of the respondents to this application. It appears that one of the respondents stopped deducting dues when its employees took industrial action and that that led to the demands with which this case is concerned.

13. Material of the kind relied on in this case was also before the Court in Reg. v. Portus. It was said in that case, by Walsh J ((19) (1972) 127 CLR at 367-368. See also at 373 per Stephen J), that the international material was of no assistance in determining the meaning and application of the Conciliation and Arbitration Act and that, so far as the Australian material was concerned, the subject matter was such as to destroy the premise that the making of agreements for the deduction of union dues, even if common, was "sufficient reason for regarding a demand upon employers, who are unwilling to make a similar agreement, as an industrial matter". Of course, his Honour was speaking of an industrial matter as defined in the Conciliation and Arbitration Act and, in that context, his Honour's remarks were clearly correct.

14. The material with respect to Australian and overseas practice takes on a different light in the context of the constitutional expression "industrial disputes" which, it is now clear, must be given its popular meaning. Even if there were no material on the subject, the popular meaning would, in our view, extend to a dispute as to the deduction of union dues from the wages of employees who authorize that course. That is because trade unions exist to further the industrial interests of their members and to represent them in negotiations with employers and in proceedings in the various industrial tribunals established for the regulation of the industrial relationships of employers and employees ((20) See Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908) 6 CLR 309 at 358-360.). In an industrial relations system involving the active participation of trade unions as the recognized representatives of their members, a claim that employers should deduct union dues is, in our view, inherently industrial in character. Certainly, that is so where the claim is for deductions authorized by individual employees. The material, at least the Australian material and that relating to countries where trade unions have a similar role, confirms that a dispute with respect to that matter is an industrial dispute within the popular meaning of that expression and, hence, an industrial dispute for the purposes of s.51(xxxv) of the Constitution.

15. It is arguable, however, that the popular meaning of "industrial disputes" does not extend to a claim for the deduction of union dues unless the deductions are in some way authorized by employees. That is because, prima facie, a union is acting in its own interest, not that of its members as employees, when it pursues a claim for the
deduction of dues and it may well be that, even in popular understanding, it is necessary for the employees' interests to be seen as coinciding with the union's if the matter is to be regarded as industrial. On the other hand, if some employees have authorized the deduction of union dues or the union is acting with the support of some employees, there is obvious force in the argument that the dispute is an industrial dispute for the purposes of s.51(xxxv). It is, however, unnecessary to resolve that question for the purposes of the present case.

16. Even though a dispute as to the deduction of union dues falls within s.51(xxxv) of the Constitution (at least if it relates to authorized deductions), it will not be an industrial dispute within the jurisdiction of the Commission unless it is also a dispute as defined in the Act. By s.4(1) of the Act, "industrial dispute" is defined, so far as subject matter is concerned, as meaning "an industrial dispute ... that is about matters pertaining to the relationship between employers and employees" and as including "a demarcation dispute". To the extent that the definition requires the subject matter of a dispute to pertain to the relationship between employers and employees (and that is the only part of the definition that is relevant to this case), it is different from the definitions of "industrial matters" considered in R. v. Kelly and, later, in Reg. v. Portus (which were concerned with "the relations of employers and employees") only in the manner of its expression.

17. Neither the broader approach to s.51(xxxv) of the Constitution nor the definition of "industrial dispute" in s.4(1) of the Act provides any basis, in our view, for a reconsideration of Reg. v. Portus. The question is not one involving s.51(xxxv); it is simply a question of the meaning of the definition of "industrial dispute" in s.4(1). And although there are some minor differences between that definition and the relevant definitions previously found in the Conciliation and Arbitration Act ((21) See, as to the requirement that a dispute be "about" matters, rather than the earlier requirement of a dispute "as to" those matters, Re Amalgamated Metal Workers Union; Ex parte Shell Co. of Australia Ltd. (1992) 174 CLR 345 at 354-357.), the requisite nature of the subject matter of a dispute remains precisely the same, namely, that it pertain to the employment relationship involving employers, as such, and employees, as such ((22) See, as to s.4(1) of the Act, Re Finance Sector Union of Australia; Ex parte Financial Clinic (Vic.) Pty. Ltd. (1993) 178 CLR 352.).

18. Nor is the Federation's argument advanced by the Union Badge Case or by Archer's Case. As was said in R. v. Kelly ((23) (1950) 81 CLR at 85.), "(w)hether an employer should permit his employee to wear a particular badge when on duty seems plainly a matter pertaining to the relations between an employer as employer and an employee as employee". Archer's Case is, perhaps, not so plain. Indeed, that is implicit in the judgments of Isaacs and Rich JJ and Higgins J, in which the claim was described, respectively, as "the least obvious" of the claims covered by the union demand ((24) (1919) 27 CLR at 214.) and as one
about which "some doubt" had been felt ((25) ibid. at 217.). However, when the claim is viewed as one directed to distinguishing between garments made by the manufacturers' employees and those made by sub-contractors or out-workers, it is, in our view, one that is directly related to the work performed or to be performed by employees. And that is well within the employer-employee relationship.

19. The claim in Archer's Case was directed to strengthening the position of employees, presumably trade unionists, vis-a-vis the position of independent contractors who, presumably, were not members of a union. On that basis, there are clear similarities between that claim, the claim in the Union Badge Case and the claim in this case. All three have an aspect directed to strengthening the position of trade unions or of employees who are members of a union. That aspect, when viewed in isolation, concerns employees as members of a union, not as employees. And although there are remarks in the Union Badge
Case that provide clear support for the view that the words "industrial disputes" in s.51(xxxv) of the Constitution should be given their popular meaning ((26) See, for example, (1913) 17 CLR at 687 per Barton ACJ, 695 per Isaacs and Rich JJ, 705 per Higgins J), a view which was later adopted in the C.Y.S.S. Case and which leads to the conclusion that a dispute as to deduction of union dues (if authorized by employees) is an industrial dispute for Constitutional purposes, there is nothing in that case or in Archer's Case to suggest that a claim directed to strengthening the position of a union or union members is, without more, a matter pertaining to the employment relationship involving employers, as such, and employees, as such.

20. There are, in our view, three matters which tell persuasively against reconsideration of Reg. v. Portus. The first is that the principle on which it proceeds, namely, that for a matter to "pertain to the relations of employers and employees" it must affect them in their capacity as such, has been accepted as correct in a number of subsequent cases ((27) See, for example, in relation to Reg. v. Portus: Reg. v. Coldham; Ex parte Fitzsimons (1976) 137 CLR 153 at 162, 163-164; Federated Clerks' Union (Aust.) v. Victorian Employers'
Federation (1984) 154 CLR 472 at 482, 488; Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (1986) 160 CLR 341 at 352-353. See also Re Finance Sector Union of Australia; Ex parte Financial Clinic
(Vic.) Pty. Ltd. (1993) 178 CLR at 363 and the cases there
cited.), with no question ever arising as to whether the principle was correctly applied in the case. The second is that Parliament re-enacted, in s.4(1) of the Act, words which are almost identical with those considered in Reg. v. Portus. There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the
words to bear the meaning already "judicially attributed to (them)" ((28) Barras v. Aberdeen Steam Trawling and Fishing Co. (1933) AC 402 at 446 per Lord Macmillan. See also D'Emden v. Pedder (1904) 1 CLR 91 at 110; Pillar v. Arthur (1912) 15 CLR 18 at 22, 25, 29-30; Platz v. Osborne (1943) 68 CLR 133 at 141, 146, 146-147.), although the validity of that proposition has been questioned ((29) Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation (1952) 85 CLR 159 at 174, 182; Reg. v. Reynhoudt (1962) 107 CLR 381 at
388; Flaherty v. Girgis (1987) 162 CLR 574 at 594.). But the presumption is considerably strengthened in the present case by the legislative history of the Act. The Committee of Review into the Australian Industrial Relations Law and Systems, whose report preceded the enactment of the Act, recommended that the jurisdiction of the tribunal be extended to the limits of the constitutional power under s.51(xxxv) ((30) Report of the Committee of Review, Australian Industrial Relations Law and Systems, April 1985, vol.2 at par.7.10.) . Yet Parliament adopted, in almost identical terms, the language of the former Act into the Act, and the Minister acknowledged in his Second Reading Speech that the jurisdiction was to be limited by "the requirement that disputes relate to matters concerning employers and employees" ((31) Commonwealth House of Representatives, Parliamentary

Debates (Hansard), 28 April 1988 at 2336.). These considerations reinforce the presumption that Parliament did not intend to overturn Reg. v. Portus.

21. The third matter that tells against a reconsideration of Reg. v. Portus is that, academic criticism notwithstanding ((32) See, for example, the note at (1973) 47 Australian Law Journal 42; Sorrell, Law in Labour Relations: An Australian Essay, (1979) at 13-14.), there is
no reason to think it is in any way affected by error. The considerations which lead to the conclusion that a dispute as to deduction of union dues (at least, where authorized by individual
employees) is an industrial dispute within s.51(xxxv) of the Constitution, tend in favour of the conclusion that the subject matter does not pertain to the relationships of employers and employees in their capacity as such. Those considerations, which depend on the nature and role of trade unions in Australia, show that although the subject matter pertains to a relationship between employers and employees, it is a relationship involving employees as union members and not at all as employees. That appears even more clearly if, as earlier suggested, the industrial character of the claim for the purposes of s.51(xxxv) comes about only in the case of a claim for employee-authorized deductions. Finally and so far as the statutory definition of "industrial dispute" is concerned, the character of a claim for the deduction of union dues is not altered simply because it is bound up with a claim for a wage increase equivalent to the dues to be deducted.

22. The application should be refused.