Re Australasian Meat Industry Employees' Union Ex Parte Aberdeen Beef Co Pty Ltd

[1993] HCA 17

HIGH COURT OF AUSTRALIA

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

RE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

(1993) 176 CLR 154

18 March 1993

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Industrial Relations Commission—Jurisdiction—Industrial dispute extending beyond limits of one State—Whether single industry essential to industrial dispute—Separate demands—When giving rise to single dispute—Genuiness of dispute—The Constitution (63 and 64 Vict. c. 12), s. 51(xxxv)—Industrial Relations Act 1988 (Cth), s. 4, "Industrial dispute".

Decisions

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ. This application is made upon notice against the Industrial Relations Commission and the Australasian Meat Industry Employees' Union ("the Union") by a number of employers. They seek a writ of prohibition preventing the Union from proceeding further in an industrial dispute which the Commission found to exist between the employers and the Union. The employers contend that the Commission was wrong to find a single dispute, and that of those multiple disputes which may exist, only a small number extend beyond the limits of any one State, so bringing those disputes within the jurisdiction of the Commission. In addition, the employers say that any interstate dispute exists only on paper and is not a real and genuine dispute.

2. The dispute which the Commission found to exist was created when the Union served a log of claims on behalf of its members upon employers who failed to accede to these demands. Those employers owned or operated some thirty meat processing establishments, of which six were in Queensland, one was in South Australia and the remainder were in New South Wales. The New South Wales establishments were covered by awards of the Industrial Commission of New South Wales. It was suggested that the real purpose for serving the log was to bring the New South Wales establishments under a federal award. Since the service of the log, a number of establishments have changed hands or ceased to operate, including one Queensland establishment and the sole South Australian establishment. According to the applicant employers, the reduction in the number of operating establishments outside New South Wales reinforces their argument.

3. Part I of the log of claims relates to payment upon a time basis as opposed to payment under a tally or piecework system. Clause 9, which appears in Part I, demands that an adult employee "of a classification specified in the Table below who is employed by any employer respondent to this Claim shall be paid the weekly wage rate assigned in the Table to that classification for the place or area in which the employee works". This table sets out various rates of pay according to locality for specified jobs within five classifications:
(1) timework abattoirs;
(2) retail butcher shops; (3) smallgoods manufacturing; (4) timework boning; and (5) ham and bacon manufacturing.

4. It is possible to pass over Part II of the log and turn to Part III which sets out demands for payment under a tally or piecework system. Again a table sets out rates of pay for specified jobs within various classifications. The classifications adopted for work done under a tally or piecework system are:
(1) cattle slaughtering
(2) sheep and lamb slaughtering (3) pig slaughtering (non-feral) (4) calf slaughtering on a calf chain or rail system with a

stripper

(5) goat slaughtering (6) horse slaughtering (7) buffalo slaughtering (8) feral stock and game collection and slaughtering (9) beef boning; (10) mutton and lamb boning; (11) veal boning; (12) pork boning and cut up (non-feral); (13) buffalo boning; and (14) feral stock and game meat boning.

Combining the classifications for timework and for work done under a tally or piecework system, the log of claims contains nineteen basic classifications. These classifications are taken from an existing Federal Meat Industry Award.

5. At the time the log was served only a small number of the nineteen classifications applied to those establishments which operated outside New South Wales. Piecework cattle slaughtering, and piecework sheep and lamb slaughtering were carried out at the one establishment in South Australia. Piecework beef boning and piecework veal boning were carried out at one establishment in Queensland. Piecework feral stock or game collection and slaughtering were carried out at a second Queensland establishment with subsequent piecework feral stock or game meat boning. Another two Queensland establishments were engaged in smallgoods manufacturing and ham and bacon manufacturing. One of those establishments also ran a combined butcher shop and delicatessen. Thus out of the possible nineteen classifications, only nine applied to the establishments operating outside New South Wales. That number was reduced when, as we have said, the one South Australian establishment and one Queensland establishment ceased operations after the log of claims was served.

6. The employers' argument is that each of the nineteen classifications describes or categorizes activities which differ significantly from the activities described or categorized by the other classifications. It is said, therefore, that if any industrial dispute exists, it is a series of disputes in relation to wages and conditions for different activities, only some of which extend beyond New South Wales, rather than the single interstate dispute found by the Commission. For example, it is conceded that, there being ham and bacon manufacturing establishments in both New South Wales and Queensland, there is, at least on paper, an interstate industrial dispute in relation to the wages and conditions of those employed in ham and bacon manufacturing. On the other hand, it is said, this dispute does not include, for example, a dispute as to the wages and conditions of those employed in pig slaughtering (non-feral), an activity not carried on by any of the establishments outside New South Wales. It is said that the classifications differ to such an extent that there is a separate dispute in relation to the demands for each classification or, at any rate, for most of them. Lying behind that argument is an assumption that, since the decision of this Court in Reg. v. Coldham; Ex parte Australian Social Welfare Union ((1) (1983) 153 CLR 297), the existence of a single industry cannot be used as the nexus between disparate demands which enables them to be dealt with as a single industrial dispute.

7. It is true that in Reg. v. Coldham; Ex parte Australian Social Welfare Union the Court pointed out that the phrase used in s.51(xxxv) of the Constitution is "industrial disputes" and not "disputes in an industry" ((2) ibid., at p 312, citing Higgins J. in Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508, at p 573). But the purpose of that observation was to demonstrate that there is no warrant in s.51(xxxv) for confining the popular meaning of "industrial disputes", which includes disputes between employees and employers about the terms of employment and the conditions of work, to disputes in productive industry and organized business carried on for the purpose of making profits.

8. However, recognizing that the expression "industrial disputes" in the Constitution is used in its popular and not in any narrow sense, does not prevent the existence of an identifiable industry from providing the nexus or unifying factor which combines in a single industrial dispute a number of demands made on behalf of a number of employees to a number of employers. In this context it may be observed that the Industrial Relations Act 1988 (Cth) s.4, does not define "industry" narrowly, but includes "any business, trade, manufacture, undertaking or calling of employers" and "any calling, service, employment, handicraft, industrial occupation or vocation of employees". Even so, the statutory definition may still be narrower than the concept of "industry" implicit in the constitutional expression "industrial disputes". Nevertheless, it remains possible to identify specific industries and in most cases it is still true to say, as Isaacs J. did in Jumbunna Coal Mine N.L v. Victorian Coal Miners' Association ((3) (1908) 6 CLR 309, at p 373.) and R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte G.P Jones (The Builders' Labourers' Case) ((4) (1914) 18 CLR 224, at p 242), that "the nexus of an industrial dispute is 'the industry' itself". It may now be the case, given the wider meaning attributed to "industrial dispute", that it is no longer invariably necessary to discern a particular industry before it is possible to find the existence of an industrial dispute. Other factors may provide the nexus. But the words of Starke J. in Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association ((5) (1925) 35 CLR 528, at pp 548-549) still provide a general guide:
"An industrial dispute is constituted, both historically and
in point of fact, where a difference exists between workmen themselves, or perhaps between employers themselves, or between employers or classes of employers, and workmen engaged in some common industry or calling, concerning industrial conditions affecting a class so engaged and not merely affecting individual and definite members thereof. An industrial relationship, and not a contractual relationship, is all that is necessary to constitute an industrial dispute. The nexus is to be found in the industry or in the calling or avocation in which the participators are engaged."

9. It is not of great significance that there was no exact coincidence between the activities carried on in the respective States in respect of which demands were made. It is of greater significance that those upon whom or in respect of whom the demands were made had a community of interest. That factor may exist because of the employers' or employees' participation in a single industry and is present here. A dispute involving parties having a community of interest is likely to be a single industrial dispute despite differences between the activities of those parties. In this case a single industry can be identified in which there is a history of common industrial regulation by a single award containing the same classifications as were adopted by the log of claims. The Commission described that industry as follows:
"The meat processing industry covers a very wide range of
activities from the saleyard to the retail butcher shop. Of course, there are many variations in between with different methods of purchasing stock, of slaughtering and processing that stock, of the use made of the various parts of the carcase and the presentation of meat for sale on the

domestic and export markets. Each and every process is directly related to the slaughter of the animal in the first instance which is the commencement of a long chain of various activities which are necessary in order to be able to offer an end product for sale and subsequent consumption."

10. The applicant employers rely upon the decision of this Court in Reg. v. Gough; Ex parte BP Refinery (Westernport) Pty. Ltd. ("the BP Refinery Case") ((6) (1966) 114 CLR 384). In that case a majority acknowledged that the question of the existence of an industrial dispute was essentially one of fact, and that there could be no objection to serving a log of claims in more than one State for the purpose of creating an interstate dispute ((7) ibid., at pp 385, 386). However, the log of claims demanded of the employer (the prosecutor) wages and conditions in respect of only one category of employees. That category was not employed by any of the other employers upon whom the log was served (the agents), who were all in States other than Victoria. The majority held that, since the prosecutor had no interest in resisting the demands made of the agents, and the agents had no interest in resisting the demands made of the prosecutor, the prosecutor and its employees had no common cause of dispute with the agents and their employees. By contrast, in this case the employers from different States do have some employees in common categories. And unlike the BP Refinery Case, the Union has previously made collective demands over both the common categories and the categories which in this case are confined to New South Wales. All the categories have historically been regarded as belonging to the same industry. This may be compared to the BP Refinery Case where the category of employees unique to Victoria was novel and distinct from the other categories which were said to be included in the dispute.

11. The employers' second argument is that any paper dispute involving the South Australian and Queensland establishments is not a real and genuine dispute, and that there is no dispute extending beyond the State of New South Wales, and hence the dispute is not within the jurisdiction of the Commission. In these proceedings the employers bear the onus of establishing that a dispute which exists on paper is not real or genuine. As Wilson J. pointed out in Reg. v. Cohen; Ex parte Attorney-General (Q.) ((8) (1981) 157 CLR 331, at p 346; see also per Gibbs C.J. at pp 337-338.):
"The relevant principles are well established. The
theory of the so-called 'paper dispute' is that a dispute within the meaning of s.51(xxxv) of the Constitution may be created by a formal demand and refusal: Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union ((9) (1956) 96 CLR 317, at p 333). Nevertheless, such disputes must be real and genuine and seriously persisted in. This is always a question of fact and in proceedings for prohibition the fact must be determined by this Court on its independent view of the evidence: Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.2) ((10) (1930) 42 CLR 558, at pp 577-578). Of course, in a case where the jurisdiction of the Commission depends upon a question of fact, considerable weight will attach to the finding of the tribunal Commissioner. Unless that finding is manifestly wrong, the Court will hesitate very much before it will interfere. In the words of Isaacs J., 'a doubt as to error is resolved in favour of jurisdiction': Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.1) ((11) (1930) 42 CLR 527, at p 548); cf., also, R. v. Blakeley; Ex parte Association of Architects etc. of Australia ((12) (1950) 82 CLR 54, at pp 92-93.)." In finding the dispute in the current case, the Commission said:

"There is no doubt that the log of claims served by the AMIEU is real and genuine. It is what was described as the 'standard log' served by the AMIEU on various employers from time to time. This log appears to be in identical terms to others served by the AMIEU on other employers in recent times which have been the subject of proceedings before this Commission."

No doubt one of the reasons why the Queensland and South Australian employers were served was to ensure that there was an interstate element in the dispute which the Union sought to create, but this is not inconsistent with the demands made for industrial conditions being genuine. Those demands were of a kind which the Union had pursued on other occasions in the Commission.

12. To demonstrate there is no real and genuine dispute with the employees outside New South Wales, the applicant employers point to the relatively small number of employers outside New South Wales served with the log, and the relatively small number of activities in the log which are carried on outside New South Wales. Neither of these facts is inconsistent with the claims being real and genuine.

13. In the BP Refinery Case, the majority held that there was no real and genuine dispute extending beyond the limits of Victoria because only five agents out of many hundreds of persons carrying on similar businesses in the Commonwealth were served and only seven employees of the five agents were affected. Thus the majority said ((13) (1966) 114 CLR, at p 387.):
"(I)t seems to us that there was no desire on the part of
the Union to initiate a dispute of any kind on this level and that it was a matter of indifference to it whether this claim was resisted or not or whether an award binding on the agents should be made. It is obvious that the only purpose of the Union was to secure an award binding on the Company and the service of the log on the 'agents' was not intended to initiate, and did not operate to initiate, an actual dispute with them."

14. But in the current case, the mere fact that the dispute outside New South Wales is smaller than the dispute within New South Wales does not indicate that the interstate dispute is not genuine. As Latham C.J. observed in R. v. Portus; Ex parte Federated Clerks Union of Australia ((14) (1949) 79 CLR 428, at p 432):
"This Court would soon find itself in grave difficulties if
it were to hold that the jurisdiction of the Arbitration Court depended, not merely upon the extension of an industrial dispute from one State to another State, but also upon the size of the dispute in each or some particular State." There is a significant number of employees outside New South Wales, and no inference can be drawn that the Union does not intend to pursue its demands on their behalf. Thus there is no sufficient basis upon which to conclude that the Union does not intend to pursue those interstate demands. At all events, the evidence is insufficient to discharge the onus which lies upon the applicant employers in seeking to displace the finding of the Commission.

15. For these reasons the application should be dismissed.

McHUGH J. The prosecutors seek an order for a writ of prohibition directed at the respondents, prohibiting them from proceeding further on a finding by the Australian Industrial Relations Commission that an industrial dispute extending beyond the limits of one State existed between the prosecutors, other employers, and the fifth respondent, the Australasian Meat Industry Employees' Union ("the Union"). The questions in the application are whether an interstate dispute exists between the prosecutors and the Union and, if so, whether that dispute is a real and genuine dispute.

2. The facts of this case are set out in the judgment of Mason C.J., Brennan, Deane, Dawson, Toohey and Gaudron JJ. It is unnecessary to repeat them except to note that, at the time of the service of the log of claims, only six of the many activities referred to in the log were engaged in both in and outside of New South Wales. They were:
1. piecework cattle slaughtering;
2. piecework sheep and lamb slaughtering; 3. piecework beef boning; 4. piecework veal boning; 5. smallgoods manufacturing; 6. ham and bacon manufacturing. No one establishment engaged in all six of these activities. At the time of the hearing in the Commission, six establishments in N.S.W., one establishment in South Australia and one establishment in Queensland had ceased to operate with the result that of the six activities only small goods manufacturing and ham and bacon manufacturing were carried on both in and outside New South Wales.

The prosecutors' arguments
3. The prosecutors contend that there is no single dispute extending beyond the boundaries of any one State because no relevant establishment engaged in all the various activities which were the subject of the log. Accordingly, the prosecutors contend that there could be no common industrial dispute as to those activities. Furthermore, the prosecutors contend that, even in respect of the six (now reduced to two) activities carried on both in and outside of New South Wales, there is no common industrial dispute because no establishment engaged in all six activities. At most, so the prosecutors contend, there are a number of separate industrial disputes extending beyond the limits of one State.

4. Alternatively, the prosecutors contend that the dispute is not a real and genuine one because, at the time of the hearing, employers outside New South Wales carried on only a small proportion of the activities which were the subject of the log. The prosecutors contend that the log of claims was put forward solely to attract the jurisdiction of the Commission.

The decisions of the Commission
5. Deputy President Riordan, who heard the matter at first instance, rejected the prosecutors' contentions. He found that the service of the log was genuine. He also found that an industrial dispute existed and that it encompassed all recipients of the log of claims with the exception of Lindgren Pty. Ltd., a supplier of materials to retail butcher shops. He found that the meat processing industry covered a very wide range of activities from the saleyard to the retail butcher shop. He also noted that the "various and varied activities" were generally regulated by the terms and conditions of the Federal Meat Industry Award which was supplemented by other Awards to cover particular enterprises.

6. The Deputy President went on to say:
"To attempt to compartmentalise and subdivide the various
activities and enterprises covered by the log of claims and which are engaged in in the several aspects of the meat processing industry would result in a denial of historical fact. If the industry is considered as a whole there is no merit in the claim that the dispute lacks the required and essential interstate character."

7. An appeal to the Full Bench of the Commission was dismissed. The Full Bench found that the service of the log was genuine and that the recipients of the log (with the exception of Lindgren Pty. Ltd.) carried on their activities in the meat processing industry. The Full Bench said that the evidence given by the senior industrial officer of the New South Wales division of the Meat and Allied Trades Federation of Australia ("MATFA") established "that the diverse activities comprehended by the log and subject to separate, detailed claims constitute a recognisable industry when viewed as a whole".

8. The Full Bench also said:
"A recipient or group of recipients may reject claims that
are relevant to them, and may have no interest in aspects of the claims which are relevant to others, but this cannot affect the fact that there is a common industry in which all recipients of the log and their employees carry on the activities which are the subject of the demands. The dispute resulting from rejection of those demands is a dispute common to all."

Interstateness
9. Section 51(xxxv) of the Constitution provides that the Parliament shall have power to make laws with respect to:

"Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State."

This limitation on the power of the Parliament is mirrored in the definition of industrial dispute in the Industrial Relations Act 1988 (Cth) ("the Act"). Section 4(1) defines "industrial dispute" as:

"(a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) extending beyond the limits of any one State; and

(ii) that is about matters pertaining to the relationship between employers and employees; or

(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a)".

10. A dispute will extend beyond one State if the same dispute exists in one State and in a place outside that State ((15) R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte G.P Jones (1914) 18 CLR 224 (The Builders' Labourers' Case)). It is the dispute itself which must so extend, not the industry or activity in which the dispute takes place ((16) Caledonian Collieries Limited v. Australasian Coal and Shale Employees' Federation (No.1) (1930) 42 CLR 527). Consequently, the subject-matter of the dispute between employees and employers must be common to the employees and employers in the several locations of the dispute ((17) The Builders' Labourers' Case; Reg. v. The Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union (1957) 99 CLR 505 ("the Pinkenba Case")).

11. The term "industrial dispute" is to be given its ordinary and popular meaning ((18) Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 ("the Social Welfare Union Case"); Re Lee; Ex parte Harper (1986) 160 CLR 430, at p 448). In Reg. v. Coldham; Ex parte Australian Social Welfare Union ((19) (1983) 153 C.LR, at p 312) ("the Social Welfare Union Case"), the Court said:
"It is, we think, beyond question that the popular
meaning of 'industrial disputes' includes disputes between employees and employers about the terms of employment and the conditions of work." The claims made in the log of claims relate exclusively to the terms and conditions of employment. If the claims in the present log were genuinely made, their refusal by the employers gave rise to an industrial dispute or, as the prosecutors contend, several industrial disputes.

12. The question whether disagreements between employers and employees give rise to one dispute or a series of disputes has been considered by this Court in a number of cases. These cases show that an employer which is in disagreement with its employees will be a party to an industrial dispute involving another employer and its employees when both employers have a common interest or common cause in rejecting the claims of their employees for a change in their industrial relationship.

13. In R. v. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild ((20) (1912) 15 CLR 586.), Isaacs J. rejected the argument that there could be no single dispute in circumstances where the various employers concerned were not actual or potential competitors. His Honour continued ((21) ibid., at pp 623-624.):
"It is said that community of interest is necessary between
employers. But, if so, in what must there be community of interest? It cannot be in the particular transactions entered into by each, nor in the specific localities, nor in the special branches of the business to which each respectively chooses to devote itself. It must, if at all, be community of interest considered, not from the commercial aspect, which is the outward aspect, and, as decided in Clancy v. Butchers' Shop Employees Union ((22) (1903) 1 CLR 181), does not concern the employees, but from the industrial aspect, which is internal and does concern the employees, because in this aspect the interests are mutual and rights reciprocal and therefore susceptible of dispute. If, then, the same industrial demand, say by all the electrical engineers in Australia for some condition specially attributive of their vocation, is made upon all employers in Australia - whether gas companies, mining companies, hotels, boot manufacturers, and so on - all these employers would have in a sufficient sense a community of interest in granting or refusing it."

14. Rejection of the need for a commercial nexus between employers before there can be a common dispute was confirmed in R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte G.P Jones ((23) (1914) 18 CLR, per Isaacs J. at pp 242, 245-248; Gavan Duffy and Rich JJ. at p 254; Powers J. at pp 261-263.) (The Builders' Labourers' Case) where Isaacs J. said ((24) ibid., at pp 245-246):
"The question I ask myself is: Was there at the proper time
existing in the building trade and extending over an area comprised in more than one State, a dispute between the parties to the award, relative to the industrial conditions of that trade?"

15. This focus on a common industry or trade for determining whether a relevant community of interest existed was given greater emphasis in Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association ((25) (1925) 35 CLR 528.) where Isaacs J. stated ((26) ibid., at p 540):
"The nexus of all the co-operators is the industry itself,
irrespective of how its ownership or its operative arrangements are subdivided." (emphasis added) Starke J. stated ((27) ibid., at pp 548-549):

"An industrial dispute is constituted, both historically and in point of fact, where a difference exists between workmen themselves, or perhaps between employers themselves, or between employers or classes of employers, and workmen engaged in some common industry or calling, concerning industrial conditions affecting a class so engaged and not merely affecting individual and definite members thereof. An industrial relationship, and not a contractual relationship, is all that is necessary to constitute an industrial dispute. The nexus is to be found in the industry or in the calling or avocation in which the participators are engaged." (emphasis added)

16. However, the existence of a common industry in more than one State is not sufficient to make a dispute between an employer and its employees in that industry an interstate dispute; there must be disagreements in more than one State. The Caledonian Collieries Cases ((28) Caledonian Collieries (No.1); Caledonian Collieries Limited v. Australasian Coal and Shale Employees Federation (No.2) (1930) 42 CLR 558.) were concerned with a dispute which erupted in New South Wales over a proposed reduction in pay. Employees in Queensland and Victoria went on strike in sympathy with the employees in New South Wales and because they believed their own wages might be reduced as a result of the reduction in New South Wales. In those circumstances, the Court held that there was no dispute extending beyond New South Wales because the disputes in Queensland and Victoria did not arise from any "disagreement" between the employees and the employers in those States. The majority (Gavan Duffy, Rich, Starke and Dixon JJ.) held ((29) Caledonian Collieries (No.1) (1930) 42 CLR, at p 555) that the "employers (in Queensland and Victoria) would not understand that anything was asked of them, nor would they be understood as either requiring anything of, or refusing anything to, the men". In the course of their reasoning, the majority stated ((30) ibid., at p 552): "It is equally well established that to constitute an
industrial dispute there must be disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship."

17. Furthermore, the existence of both disagreements and a common industry is not necessarily sufficient to unify the several disagreements. Reg. v. The Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers Union ((31) (1957) 99 CLR 505) ("the Pinkenba Case") concerned a demarcation "dispute" between the Waterside Workers' Federation of Australia and other industrial organisations. One aspect related to the stacking of bagged wheat in the port of Brisbane in Queensland; another aspect related to the operation of forklifts for the discharge of cargo at Bell Bay, Tasmania; the third aspect related to the loading of bulk cargoes of wheat in Albany, Western Australia. This Court held that these incidents did not form one industrial dispute extending beyond any one State. The Court said ((32) ibid., at p 511):
"The three incidents have no other connection and from their
very nature must involve separate and unconnected industrial questions. This is shown by the very order itself. It deals with the situation at Pinkenba on its own footing, entirely ignoring any question at Bell Bay or Albany. The three matters are necessarily local questions depending on local considerations."

18. A similar approach was taken by the Court in Reg. v. Gough; Ex parte BP Refinery (Westernport) Pty. Ltd. ((33) (1966) 114 CLR 384) where the operators of an oil refinery, yet to be put into operation, were served with a log of claims. The log of claims was also served on five individuals and companies engaged in the distribution of petroleum products in various States ("the agents"). The log contained demands in relation to a large number of categories of employees but only one such category related to the operators of the oil refinery. The agents did not employ that category of employee, and indeed employed very few employees covered by the log of claims. The Court held that on these facts no single industrial dispute extending beyond any one State existed. Barwick C.J., Taylor, Windeyer and Owen JJ. said ((34) ibid., at p 387.):
"(T)he substance of the dispute with the Company was so far
removed and so different from the substance of the alleged dispute with the agents that it is impossible to say that there was a single dispute. The prosecutor had no interest of any kind in resisting the demand made upon the agents and the agents had no interest in resisting the demands made upon the Company. Their respective interests, industrial or otherwise, were so disparate as to compel the conclusion that there was no common cause concerning which the Union and the parties upon whom the log was served could be said to be in dispute."

19. This concentration on the substance and subject-matter of the dispute was adopted, but with the opposite result in Reg. v. Turbet; Ex parte Australian Building Construction Employees and Building Labourers' Federation ((35) (1980) 144 CLR 335) which concerned a demarcation dispute between two unions at a power station at Loy Yang in Victoria. Nevertheless, the Court found that the dispute, as manifested at Loy Yang, was a dispute which extended beyond Victoria because similar disputes were occurring throughout Australia. Mason J. said ((36) ibid., at p 350; see also Stephen J. at pp 340-342):
"The similarity in the subject matter of these
disputes, the absence of distinctive local considerations, their reflection of the conflicting policies of the two unions and their likely continuation even on a site by site basis persuade me that we have here, not a series of isolated and disconnected intrastate disputes, but a continuing dispute between two nation-wide unions which extends to major constructions sites throughout Australia and, as it unfolds, catches up employers in various States and Territories."

20. The foregoing account of the cases in this Court demonstrates that, before disagreements between employers and employees extending beyond any one State can be characterised as giving rise to a single industrial dispute, there must be a community of interest within the groups of employers and employees who are parties to the disagreements. Notwithstanding these cases, however, the prosecutors deny that the issue of community of interest can be used to unify separate disagreements. They contend that the concept of community of interest was developed to deny the notion that the absence of commercial relationships between interstate employers had the effect that there could be no interstate dispute. The prosecutors contend that the essence or genesis of a dispute extending beyond the limits of a State is disagreement in another State about the same matter ((37) See Caledonian Collieries (No.1); Caledonian Collieries (No.2)). However, this contention must be rejected. First, the doctrine of community of interest has not been limited in the way in which the prosecutors suggest. Secondly, the purpose of s.51(xxxv) of the Constitution is to allow for the prevention and settlement of industrial disputes with which States individually are unable to deal. To subject every dispute to minute examination dissecting each claim made and examining its connection to other claims is not conducive to a full effectuation of the remedy comprehended by s.51(xxxv). And it is not conducive to the prevention and settlement of industrial disputes extending beyond any one State.

Community of interest
21. Because of reliance on the concept of common industry in the early cases, the concept of community of interest has not been closely defined in the cases. As The Builders' Labourers' Case and Burwood demonstrate, community of interest cannot be equated with competition between employers. The existence or non-existence of competition is a relevant factor, but its presence or absence is not determinative of the question of community of interest. Nor should the presence or absence of "a common industry" as relied on in the early cases ((38) The Builders' Labourers' Case; Jumbunna Coal Mine N.L v. Victorian Coal Miners Association (1908) 6 CLR 309 and Burwood.) now be regarded as the determinative criterion of an industrial dispute. Since those cases were decided, the lines of demarcation between many industries have become increasingly indistinct and, from an industrial relations point of view, often meaningless. This is particularly true of service industries which frequently cover wide areas of business activity where the participants have no real community of interest in relation to industrial conditions. The communications industry, for example, covers significant areas of business activity in fields as diverse as the print media, public relations, telecommunications and the manufacture of electronic equipment. While the presence or absence of a common industry is a relevant factor, the concept of a common industry can no longer be determinative of the issue whether the participants in an industry are engaged in a single industrial dispute ((39) Caledonian Collieries (No.1); Caledonian Collieries (No.2); the Pinkenba Case; BP Westernport.). No doubt a finding that the parties are engaged in an industry whose activities are highly interdependent or integrated will usually lead to a finding that they are engaged in a common dispute. But the concept of common industry should not be regarded as necessarily determinative of that issue. As the Pinkenba Case demonstrates, no single dispute may exist although there are disagreements in several States in a well defined industry.

22. Obviously, a wide range of factors are or can be relevant in determining whether employers have such a community of interest in resisting the demands of their employees that they can be regarded as being engaged in a single industrial dispute. Relevant factors may include the presence or absence of a common industry or calling, the presence or absence of competition between the employers, the presence or absence of common demands and the presence or absence of an economic connection between the employment conditions of the employees. Similarity or dissimilarity of work is also a relevant factor as is similarity or dissimilarity of skill and the ease with which employees can be transferred from one class of work to another.

23. The foregoing factors are not intended to be an exhaustive exposition of the factors that may be relevant in determining whether a relevant community of interest exists. What is relevant will depend upon the circumstances of the case. When called upon to determine the issue, the tribunal of fact must ascertain and weigh the various factors according to the circumstances of the claims. Thus, a factor or factors which may be determinative in one case may have little, if any, bearing in another.

The prosecutors' submissions as to interstateness
24. The prosecutors put their submissions as to interstateness in two ways. First, they contend that the difference in the nature of the activities comprehended by the log of claims and the manner in which the log deals with those activities demonstrate that the prosecutors' rejection of the log constitutes a series of disputes and not a single dispute. Secondly, they contend that, because the recipients of the log employ only certain classes of employee contemplated by the log, the log cannot give rise to an industrial dispute whether the employers assent to, or dissent from, the demands relating to employees who are not employed by them.

25. In support of their first contention, the prosecutors rely primarily on BP Westernport. But that case turns on its own facts ((40) (1966) 114 CLR, per Barwick C.J., Taylor, Windeyer and Owen JJ. at p 385.). The determination that there was no industrial dispute extending beyond the boundaries of any one State in that case was based on the conclusion that the parties' ((41) ibid., at p 387):

"respective interests, industrial or otherwise, were so
disparate as to compel the conclusion that there was no common cause concerning which the Union and the parties upon whom the log was served could be said to be in dispute".

26. To support their second contention, the prosecutors rely on Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union ((42) (1956) 96 CLR 317) where certain employers' organisations demanded that a Union should be bound as to the terms of wages and conditions of employees who were not members of the Union. The Court held that the assent or dissent of the Union was irrelevant to the terms upon which non-Union employees were employed and that no dispute arose from the demand of the employers ((43) ibid., at p 323). However, in the Graziers' Case, the positions of the employers, the employees and the Union were left unaffected by any reaction of the Union to the demand. That is not the result of the rejection of the log of claims in the present case.

27. The question whether the parties in this case have a community of interest sufficient for the dispute arising from the log of claims to be characterised as one single dispute extending beyond the limits of one State is essentially a question of fact. But it is upon that question of fact that the jurisdiction of the Commission depends. Consequently, it is incumbent upon this Court to determine that question of fact. In determining the question, considerable weight is to be accorded to the decision of the Commission ((44) Reg. v. Alley; Ex parte N.S.W. Plumbers &Gas Fitters Employees' Union (1981) 153 CLR 376, at p 390. See also Reg. v. Cohen; Ex parte Attorney-General (Q.) (1981) 157 CLR 331, at p 346; and Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, at p 184.).

28. In this case, the evidence before this Court has remained substantially the same as it was in the Commission, the Full Bench has confirmed the decision of the Deputy President, and the issue of fact is one which the Commission's knowledge of the industry specially equips that body to answer. Indeed, whether the parties involved in this case have a sufficient community of interest to enable the disputation to be characterised as one single dispute is a question which is peculiarly adapted for determination by those with the experience of the industry and its industrial relations. Nevertheless, while weight will be accorded to the decision of the Commission, ultimately community of interest is a question to be determined by this Court.

29. The evidence before the Commission disclosed that there is a recognised industry known as the "meat processing industry". The various activities comprehended by the log of claims fall within that industry. This is a factor of great weight in the present case because the evidence shows the highly interdependent - indeed integrated - nature of the industry notwithstanding the variety of enterprises, occupations and activities involved. As Riordan D.P. said:
"Of course, there are many variations in between with
different methods of purchasing stock, of slaughtering and processing that stock, of the use made of the various parts of the carcase and the presentation of meat for sale on the domestic and export markets. Each and every process is directly related to the slaughter of the animal in the first instance which is the commencement of a long chain of various activities which are necessary in order to be able to offer an end product for sale and subsequent consumption."

30. While the evidence discloses that there is no direct competition between employers engaged in the various activities, it is inconceivable that there is not a substantial correlation between the prices of the various products resulting from the activities engaged in by the parties. This must be so both in relation to the prices of the various meats produced, as well as in relation to the consequential cost to smallgood manufacturers and retail butchers who use the meats slaughtered and boned by other establishments in the industry. The economic connection goes further. The evidence shows a degree of similarity in the skills required of many categories of employees. Furthermore, only a few weeks training or less is required of various categories of employees. If any significant divergence in the wages and conditions of these employees were created, there would be a tendency to transfer from one occupation to the other. Ultimately, this would affect the supply of labour and the wages paid in respect of those occupations.

31. Each of these indicia point to the existence of a community of interest amongst the parties to the log of claims. Combined, they make a compelling case for concluding that the parties to the log (other than Lindgren Pty. Ltd.) are involved in a single dispute. There is one caveat to this conclusion. There is little evidence before this Court as to the activities engaged in at McKay Casings Pty. Ltd., a casing manufacturer. Upon the evidence, it is difficult to determine whether a sufficient community of interest exists between those concerned in McKay Casings and the other parties although one may suspect that it does. The Commission's determination that McKay Casings was properly a party to the dispute was based on a finding that McKay Casings forms a part of a common industry. However, as I have indicated, a finding of common industry is not itself determinative of the existence of a relevant community of interest, notwithstanding that, in an industry whose activities are interdependent or integrated, such as the meat processing industry, disputes among participants in that industry will often be enough to lead to a finding of a relevant community of interest unless there are significant factors pointing against such a conclusion. Accordingly, the Commission must reconsider the position of McKay Casings.

32. However, with the exception of McKay Casings the disputation arising from the employers' refusal of the log of claims should be characterised as one single dispute between the employers who are recipients of the log (excluding Lingdren Pty. Ltd.) and the Union. This largely accords with the finding of the Commission, to which weight must be attributed. The prosecutors' challenge to the finding of interstateness should be rejected.

The dispute is real and genuine
33. The prosecutors also contend that the alleged industrial dispute is not real and genuine. They contend that the service of the log of claims was a mere device to attract the jurisdiction of the Commission to a dispute in New South Wales. The prosecutors rely on two matters.

34. First, of the thirty establishments which were served with the log, twenty-three are in New South Wales, six in Queensland, and one in South Australia. However, once a dispute exists beyond one State, the proportion of the dispute extending beyond any one State is irrelevant ((45) R. v. Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428).

35. Secondly, there is little correspondence between the activities engaged in by the recipients of the log of claims outside New South Wales and the activities engaged in by the recipients in New South Wales. Thus, only two of the recipients outside New South Wales operated establishments at which any species of livestock was slaughtered, and one of these (Australian Select Meat Products in Queensland) was in receivership at the time of the service of the log and ceased operation two months later. Another Queensland recipient engaged in the slaughter of feral animals and no other recipient of the log engaged in that activity. Further, only two recipients outside New South Wales engaged in any piecework boning and one of these was Australian Select Meat Products in Queensland. The prosecutors contend that this lack of correspondence between activities and the small size of the extension of the dispute beyond New South Wales establish that compliance with the demands made on the South Australian and Queensland recipients of the log was not really sought by the Union.

36. Whether a dispute is real and genuine is a question of fact. Again, this question of fact is to be decided by this Court, but considerable weight is to be given to the decision of the Commission ((46) Ludeke (1985) 159 CLR, at pp 183-184.). A log of claims will be regarded as real and genuine unless the contrary is established ((47) Cohen (1981) 157 CLR, at p 337; Ludeke (1985) 159 CLR, at p 181). It is no bar to the finding of a real and genuine dispute that one purpose of the service of a log of claims is to attract the jurisdiction of the Commission, provided that one purpose of the service of the log of claims is to secure the conditions contained in the log ((48) Cohen (1981) 157 CLR, at p 337; Ludeke (1985) 159 CLR, at p 182).

37. The matters relied upon by the prosecutors are not sufficient to overcome the presumption that a real and genuine dispute was created by the rejection of the log of claims. They are consistent with an intention on the part of the Union to pursue its claims against the recipients of the log in Queensland and South Australia. Moreover, the Union has sought to explain the matters relied upon by the prosecutors. A log of claims in very similar terms had been served in September 1988 by the Union on a number of employees and on MATFA. The Union claimed that the second log of claims was served because the Union was concerned that employers could avoid the consequences of being bound by any award based on the first log of claims by changing their legal identity or by resigning from MATFA. It appears that there is some substance in this concern - that situation occurred in relation to a slaughterhouse at Innisfail ((49) See Bacon Factories Union of Employees v. Australasian Meat Industry Employees Union (1989) 36 IR 466). This explanation of the service of the second log of claims was accepted by the Commission and has not been challenged in this Court. In the light of that explanation, the conclusion that the second log of claims was served with a real and genuine intent to secure the conditions contained therein is inescapable.

Conclusion
38. The service of the log of claims and the consequent non-acceptance of the demands made therein have given rise to an industrial dispute within the meaning of the Act and s.51(xxxv). However, because of the position of McKay Casings, that dispute may not be the dispute found by the Commission. The question then arises whether a writ of prohibition as sought by the prosecutors should lie unless and until the Commission corrects its finding as to the parties to the dispute. A similar question arose in Turbet ((50) (1980) 144 CLR, at pp 342-343; see also per Mason J. at p 351) where Stephen J. said:

"I do not think it appropriate that prohibition should go to the Commission. It is open to the Commissioner to vary his findings so as accurately to describe the dispute. When so described it will be a dispute over which the Commission has jurisdiction. In the unlikely circumstance that the Commissioner were to persist in treating the dispute as confined to Loy Yang it would be open to the prosecutor to renew its application."

That reasoning should be applied in this case. Indeed, the present case is an even stronger case for refusing to issue a writ of prohibition at this stage because further evidence may disclose that McKay Casings is a party to the dispute. The prosecutors' application for an order for a writ of prohibition should be dismissed.

Orders

Application for writ of prohibition dismissed.