Re Coldham;

[1984] HCA 62

HIGH COURT OF AUSTRALIA

Mason, Murphy, Brennan, Deane and Dawson JJ.

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND CERTIORARI AGAINST THE HONOURABLE MR JUSTICE PETER ABERNETHY COLDHAM &ORS.; EX PARTE THE AUSTRALIAN WORKERS' UNION

19 October 1984

Decision

MASON, MURPHY, BRENNAN, DEANE and DAWSON JJ. This application by the prosecutor, the Australian Workers' Union ("the AWU"), to make absolute an order nisi for prohibition and certiorari challenges the jurisdiction of the Australian Conciliation and Arbitration Commission to make an award settling disputes arising from the non-acceptance by employers being contractors engaged in the civil construction industry in Western Australia, South Australia and Tasmania of logs of claims served by the fourth respondent ("the FEDFA").

2. The logs of claims related to the wages and working conditions of persons in the employ of the employers eligible for membership of the FEDFA. The Commission made a finding pursuant to s.24 of the Conciliation and Arbitration Act 1904 (Cth) that disputes existed in relation to the matters contained in the logs. On application made by employer members of the Confederation of Western Australian Industry, the Commission decided under s.41(1)(d) of the Act that it would not proceed further with the hearing of the disputes in so far as they related to mechanical equipment in the civil construction field in Western Australia on the ground that further proceedings were not necessary or desirable in the public interest. However, the Commission decided to proceed with the application in respect of mobile crane drivers.

3. Subsequently, after the matters were listed for consideration of a draft award put forward by the FEDFA, they were referred to the Full Bench of the Commission for determination of a submission by the AWU, which had intervened in the proceedings, and by the civil construction employers, that the FEDFA was not competent to generate an industrial dispute with respect to mobile crane driving in the civil construction industry. The submission, based on the eligibility clause of the FEDFA's Constitution, was that:

"... the scope of FEDFA activity was limited to specified callings in the industry of employers who are engaged in the generation, production, distribution or utilisation of power whether that power be electrical, gas or otherwise."

The submission was rejected by the Full Bench.

4. The issue in this Court is whether the Commission was correct in the interpretation which it placed on the FEDFA'S eligibility clause. So far as it is material, the clause provides:

"... all classes of engine drivers, firemen, crane drivers, mobile crane drivers, fork lift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers, and any other workers assisting or about the work incidental to any engine, boiler or machinery connected with the production or utilization of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes ..."

The AWU's submission is that the description which follows the words "any other workers" applies also to all the specific categories of workers which precede these words. The submission pays insufficient attention to the structure of the clause which naturally falls into three parts. The first part consists of "all classes of" the specific categories, including "mobile crane drivers" down to and including "motor drivers". With the exception of "firemen" and "pump attendants" the categories in the first group comprise drivers of various kinds. And all the employees described in this group, with the possible exception of "pump attendants" have some degree of special skill. The second part of the clause commences with the disjunctive "or" and includes "attendants, greasers, cleaners, trimmers, and any other workers assisting in or about the work incidental to any engine, boiler or machinery connected with the production or utilization of power". We note in passing that it is unnecessary for the purposes of the present case to decide whether the words "on land or any harbour or river" qualify the first part of the clause. The third part of the clause includes "boiler attendants not generating steam for power purposes".

5. Once the structure of the clause is understood it becomes evident that the eligible membership of the FEDFA consists of three groups:

(1) all classes of enumerated drivers, firemen and pump attendants;

(2) attendants, greasers, cleaners, trimmers, and any other workers who answer the general description contained in the second part of the clause; and

(3) boiler attendants who answer the description contained in the third part of the clause.

It is not possible to treat the limiting description governing the second group of eligible members as having application to the first group, without doing violence to the structure and the language of the clause.

6. In the result, we do not regard the eligibility clause as ambiguous and, accordingly, there is no occasion to look to the industry clause for the purpose of resolving an ambiguity.

7. The order of the Court is the order nisi for prohibition and certiorari is discharged.

Orders

Order nisi for prohibition and certiorari discharged.