Re The Road and Traffic Authority of New South Wales & Ors; Ex parte Australian Transport Officers Federation

[1990] HCATrans 223

-!.ll	AUSTRAL!A, ,lo!-
-	-~'»)'$--««('-'-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sl40 of 1989
In the matter of -

An application for writs of

mandamus and certiorari

directed to THE AUSTRALIAN

INDUSTRIAL RELATIONS

COMMISSION

First Respondent

JOHN TERENCE LUDEKE, a Deputy
President of the Australian

Industrial Relations

Commission

Second Respondent

PAUL ROBERT MUNRO, a Deputy

President of the Australian

Industrial Relations

Commission

Third Respondent

COLIN GEORGE POLITES, a

Deputy President of the

Australian Industrial

Relations Commission

Fourth Respondent

THE ROAD AND TRAFFIC

AUTHORITY OF NEW SOUTH WALES

Fifth Respondent

Transport	1	2/10/90
MASON CJ GAUDRON J MCHUGH J

THE PUBLIC SERVICE

ASSOCIATION OF NEW SOUTH

WALES

Sixth Respondent

Ex parte

AUSTRALIAN TRANSPORT OFFICERS FEDERATION AND IAN FURTON and

the other persons named in

the Schedule attached hereto.

Prosecutors

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 OCTOBER 1990, AT 10.25 AM

Copyright in the High Court of Australia

MR R.C. KENZIE, QC:  May it please the Court, in this matter

I appear with my learned friends,

MR S.R.K. LITTLEMORE and MR B.D. HODGKINSON, for

the prosecutors. (instructed by Geoffrey Edwards &

Co)

MR R.J. BUCHANAN, QC:  May it please the Court, I appear

with my learned friend, MR P.M. KITE, for the Roads

and Traffic Authority of New South Wales, the fifth

respondent. (instructed by Minter Ellison)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR F.L. WRIGHT, for the sixth

respondent. (instructed by Jones Staff & Co)

MASON CJ:  The Acting Registrar advises that the Australian

Government Solicitor, who was acting for the first to the fourth respondents inclusive, has stated

that they do not intend to take an active part in

these proceedings and that the Australian

Government Solicitor has been instructed by those

respondents that they will abide by any order of

the Court, save as to costs.

Yes, Mr Kenzie?

MR KENZIE:	May it please the Court. provided for the Court officer copies of the	Your Honours, we have
outline of our submissions.

MASON CJ: Yes, we have that.

MR KENZIE:  May I take it that Your Honours have had the opportunity to read that or - - -

MASON CJ:	No.	Yes, Mr Kenzie.
Transport	2	2/10/90
MR KENZIE:	Thank you, Your Honours. an order nisi for writs of mandamus and certiorari	This is the return of

granted by Your Honour Justice Gaudron on

8 December 1989. The prosecutors are an

organization registered under the Industrial
Relations Act 1988, a federal Act, and a number of
persons who are members of that organization.
Your Honours, the proceedings arise out of a log of

claims served by the union prosecutor in its own right and as agent for the remaining prosecutors

and that log of claims, Your Honours, was served on

a number of statutory authorities within the State of New South Wales and elsewhere and the statutory

authorities within the State of New South Wales

included the fifth respondent, the Roads and

Traffic Authority.

MASON CJ:	We are familiar with the background facts so you can come directly to the submissions that you want
to make.

MR KENZIE: Thank you, Your Honour. Might I then refer the

Court to a summary of evidence that we have also prepared for the assistance of the Court - - -

MASON CJ:  Yes we have that.

MR KENZIE: - - - and I take Your Honours to some part of

that and I will only take Your Honours to part of

it having regard to what Your Honour has indicated.

In paragraph 1 of that summary of evidence we refer to the conditions of eligibility for membership and description of industry of the Union prosecutor and

Your Honours will find those in the application

book at pages 23 to 26. Your Honours, they have

been altered since the granting of the rule nisi

and we have filed an affidavit which sets out the

alterations but, subject to hearing argument to the

contrary, the alterations do not appear to bear

upon the debate presently before the Court, but in

any event the amended rule is before the Court.

Your Honour, application book pages 23 to 26

have the conditions of eligibility for membership and the industry rule. Your Honours can see from

the rule 5, the industry rule:

The industry in connection with which the
Federation is formed is the transport

industry, whether by land, water (except sea)

or air (excluding activities of or relating to

the piloting of aircraft) as carried on by -

and then there are a number of paragraphs which
deal with Crown authorities and other corporations
concerned with the transport industry. Then one

has the conditions of eligibility for membership

Transport 2/10/90

which are, of course, critical to the prosecutor's

submissions:

The following persons and classes of persons

shall be eligible for membership of the

Federation, namely:

(a) Persons employed at an annual salary rate

in any capacity in the transport industry

whether by land -

et cetera

by -

and then one has (i) to (v) which I do not pause to

read, Your Honours, but they fall within a category

similar to that that I have described above, and

then the words under (v):

including without limiting the ordinary

meaning of the foregoing, persons employed at

an annual salary rate in any capacity (other

than the piloting of aircraft) by -

then you have designated employers the second of

which is the Commissioner for Motor Transport (New and a reference to:

All other airline companies, corporations,

firms and businesses -

et cetera, one has the rule which we have

described, in our submissions, as the transfer
rule:

A successor or assignee or transmittee of the business of any of the foregoing so long as

such successor, assignee or transmittee is an

employer within sub-paragraphs (i), (ii) -

and there is a misprint there, obviously (iii) -

(iv), or (v) of paragraph (a) of this

sub-rule.

So that the conditions of eligibility do not provide that the transfer rule applies in respect of successors, assignees or transmittees of

employers who fall within rule 6(l)(a)(i) to (v),

but it nominates the transfer provision as applying

in relation to subparagraphs (i), (ii), (iii), (iv)

or (v) or paragraph (a) and that part of the rule,

the transfer rule, has been interpreted by the

Commission and correctly, in our submission, as not

picking up the terms of the restrictive aspect of

Transport 4 2/10/90

6(l)(a), that is the requirement that persons

covered within it be employees of employers within

the transport industry. And, in our respectful

submission, that is a correct construction and I

would seek to come to it in due course, Your

Honours.

Then there is clause 6(2):

Notwithstanding anything hereinbefore

contained -

(a) persons employed by -

a number of statutory authorities and in a

professional capacity those statutory authorities

include, on page 5 at about line 5:

The Superintendent of Motor Transport (New

South Wales) -

and I will come to this in relation to Holmes's

case in a moment, Your Honours - that is a body

which has been read by the High Court to be the Commissioner for Motor Transport, the same body

identified in the principal part of the rule.	And
then, under those named authorities -

A successor or assignee or transmittee of the business of any of the foregoing.

And then, at the bottom of the page:

shall not be eligible for membership of the
Federation.

Your Honours, there are other parts of the rule which the Court will be taken to but it is not

necessary to go to those immediately. As we

indicated, since the granting of the rule nisi,

those conditions of eligibility have been altered

and, Your Honours, there is an affidavit of Mr Hart

sworn on 27 September 1990 which the Court should

have and there were some amendments made to the

rule which appears in its present form in exhibit

GTH17 and on page 3 of that - - -

MASON CJ:	What page in the application book is it?
MR KENZIE:	I am sorry, Your Honour, it is not in the

application book. It was an affidavit sworn only

on 27 September 1990.

MASON CJ:  We do not seem to have it. Do you have copies of

it?

Transport 2/10/90

MR KENZIE:  I believe so, Your Honour. I wonder if I may

return to it.

MASON CJ: Is it material?

MR KENZIE:  It is our submission that it is not but it is

desirable that the Court have it.

McHUGH J: 

The critical question is what was the capacity of

the organization to create a dispute as at the time
of the service of the log.

MR KENZIE:  Yes, Your Honour. We do not seek to waste the

time of the Court but we - - -

MASON CJ:  We are really not concerned except to note that

there have been amendments and they are not

material in any respect.

MR KENZIE:  Yes, Your Honour.

McHUGH J:  Can I just ask you this: rules of this nature,

containing provisions such	as "successor of the
business", are they common	in your rules of
organization?

MR KENZIE:	Not common, Your Honour. They do exist in - one does find them, but one does not find them very
often.  One more often finds that the sort of
problem that has arisen in this case is attended to
by the draftsman of conditions of eligibility by
the insertion of the words frequently seen in
relation to the industry in relation to which the
Union is registered the words "in or in connection with". And you do not find those words in this
rule. In other words - - -

McHUGH J: That is the point I was raising, or impliedly

raising, because if you construe this rule

liberally as you ask in your written submissions it
has the effect, does it not, of possibly expanding

the coverage of your Union ·far beyond what anybody

contemplated when the Union was registered?

MR KENZIE:  Does Your Honour mean beyond the transport

industry?

McHUGH J: Yes, you see it takes up, does it not, a

successor of the business?

MR KENZIE:	Yes it does.
McHUGH J:	Now, as long as the person can be said to be a

successor of the business and you are employed by

him, then he is eligible for membership of this

organization.

Transport 6 2/10/90

MR KENZIE: Yes, Your Honour.

McHUGH J:  Now, the successor of the business may embrace

far more than the business which is taken over.

MR KENZIE:  On our submissions that is so, Your Honour.

McHUGH J: Yes, that is the point. But if you read this

rule liberally as you want us to read it, it could

result in some cases in a quite massive extension

of your coverage.

MR KENZIE:  Your Honour, we concede that at the outset,that

it would involve an extension of coverage beyond

the transport industry, and that is clearly so.

But the rule has already been so construed, and it

was so construed in Holmes' case to which we will

come shortly, and indeed we would submit, when we

come to Holmes' case that not only has the rule

already been construed as applying beyond the

transport industry because of the designation -

McHUGH J: But this part of the rule was not construed in

Holmes was it - not the successor part?

MR KENZIE:  Your Honour, in our respectful submission, what

the Court did in Holmes' case was, in fact, to use

the successorship rule in relation to the

Commissioner for Motor Transport and we say that

that is demonstrable. We say that firstly, and the

second thing we say is that there is no great vice

in all of this. At first blush this seems terribly

frightening. It was a the matter that

Justice Munro addressed in his dissenting judgment

in the full bench but he pointed out, Your Honours,

that this is but the first step in relation to the
resolution of industrial disputes.

All that we are concerned with here is the capacity of an organization of employees registered

under the federal Act to initiate an interstate

industrial dispute.

McHUGH J:  But that is a little unreal, is it not, because

it also has the capacity to create demarcation

disputes and that is a real problem which the Act

addresses and tries to avoid wherever possible?

MR KENZIE:  Yes, Your Honour, but indeed the Act itself is

of assistance here, the 1988 Act, because it

envisages that demarcation disputes can be

themselves resolved by amendments made to the

traditionally registered rules of organizations as

part of a rationalization process.

So, in our respectful submission, the Court

would not be deterred by the fact that the

prosecutor's submissions, if successful, will have

Transport 2/10/90

the result that it will go beyond the transport

industry and it will allow the prosecutor

organization to enrol people who might at the time

of the certification of the rule not have been

either named or operating within the transport

industry.	But that was the intention of the rule
and - - -

McHUGH J:  But the point is it throws light on your first

submission in this document that you handed up,

that the eligibility rule should be construed

liberally. Why should this particular rule be

construed liberally?

MR KENZIE:  May we answer Your Honour in this way: if the

rule did not contain a successor provision but

contained instead the words "in or in connection

with the transport industry" then, according to

authorities of this Court and the federal

Commission and its predecessor, the rule would none

the less be construed liberally although - and

benevolently, having regard to the industrial

history and the way in which it had developed in

relation to the particular industry or industries

concerned, and that would all be consistent with

the approach to conditions of eligibility which

are - and constitute a general line of demarcation

as between unions and set out their general sphere

of operations.

But the conditions of eligibility go no

further, Your Honour, and the mere fact that

the Court finds that the prosecutor organization

has eligibility means no more than it can initiate

an industrial dispute which comes before the

Commission which can then make the requisite

determinations. In other words, the federal

Commission can then say, "Well, all right, this is

an organization which has but a peripheral interest

in this industry, or the history is against it

although there is coverage, therefore it should not

get an award, or therefore it should be demarked

out of it pursuant to the provisions of the
Industrial Relations Act", but there is nothing frightening about the concept of the Court construing liberally conditions of eligibility

merely because they may carry an organization into

areas which, at the time of the certification of

the rule might be said to have been unforeseen.

Your Honour, there are a number of instances

which have arisen in recent years, not all of them

we have addressed in our list of authorities, but a

classic example which I think is on our list

concerned the Waterside Workers' Federation

where, at the time of registration, was an

Transport 2/10/90

organization of employees who loaded or unloaded

ships by manual means but subsequently in the
context of rules which covered persons performing

the work of waterside workers were held to cover

basically anyone who today is employed on a wharf

operating sophisticated machinery and, basically,

doing everything in or about wharves all consistent

with the benevolent construction of conditions of

eligibility rules which, after all, provide an

entree to the Commission being able to then act in

relation to an organization and determine a

dispute - - -

McHUGH J: But that is a good illustration. I mean, that

resulted in years of infighting between the

Transport Worker' Union and the Waterside Workers'

Union simply by reason of giving that extended coverage.

MR KENZIE:	It all ended very quickly, Your Honour, once the court found that the organization had coverage and
made federal awards in relation to it, with
respect.  We simply submit, at first blush one
says, "Well there's a vice in relation to the perceived extension of the rule" and, we would
submit there is no such vice at all. Indeed, it
provides the basis of resolution of industrial disputes and not the contrary and, Your Honour, we say that our submissions are completely consistent with a long line of authority where eligibility
rules which have general terms within them have
been generously construed.

There is no more reason to construe this rule

strictly because it deals with the problem by way

of successorship than there is to construe a rule

strictly because it deals with the problem in

relation to transfers, assignments, et cetera, by

reference to whether the Union is registered in or

in connection with a particular industry because a

change in the nature of the industry relevant to

the employees may, of course, take the employer out

of the industry in which the organization was

originally registered and into another industry,

but on the authorities of this Court if the

organization is registered in or in connection with

that first industry, that change will not affect

the capacity of that organization to initiate an

industrial dispute and to enrol as members persons

employed in connection with that industry.

Now, Your Honour, it is a different means of

tackling the problem but it does not lead to a

difference in construction in the approach to

construction of the rule, in our respectful

submission.

Transport 9 2/10/90

Your Honour, in our summary of evidence we

have set out on pages 2 and 3 the functions of the

former Commissioner for Motor Transport and the

legislation pursuant to which those functions were

given to or allocated to the former Commissioner,

the Commissioner existing until 1989.

Your Honours, we have not set out the various

sections and the specificity there because, as we

apprehend it, there is no real dispute in the

proceedings as to the fact that the functions went

over with some limited exceptions so we have not

gone to the detail there.

In paragraph 5, Your Honours, we refer to the

fact that as at 16 January 1989 there were

approximately 2500 salaried officers employed by

the Commissioner including approximately 1670

members of the Union prosecutor and a substantial

number of those had their terms and conditions

covered by the Union.

Now, in paragraph 6 we take Your Honours to

the history in relation to the Commissioner for Main

Roads which I do not need to go into because it is

the other part of the equation, and in paragraph 7,
the enactment of a number of Acts including the

Transport Administration Act 1988 establishing the

RTA as a body corporate with functions given to it

under the Act and other legislation, the other

legislation being that which previously set out the

functions of the Commissioner.

Now, Your Honours, we have there set out a

the transfer was effected and, Your Honours,

referenc.e to Justice Munro's judgment in

application book pages 87 point 2 to 91 point 7.

conscious of Your Honour's comments, I do not

propose to go to it in full but I do desire to refer to some part of it. At page 87 point 2:

Transport was abolished with operative effect

The office of Commissioner for Motor from 16 January 1989 by a comprehensive

package of legislation which included -

and His Honour sets it out, and I will take

Your Honours to the detail of that in a moment if I

may. His Honour then goes to Holmes' case to which

I will come. The passage in Holmes' judgment sets

out the functions as they were described by

Mr Justice Gibbs, as His Honour then was, in 1978;

they being the registration functions, promotion of

traffic safety and collection of taxes. His Honour

goes on at page 88 point 4:

Transport 10 2/10/90

Of those broad functions it appears most were retained up to the time of abolition of

the Department of Motor Transport, although

there may have been some variation in the
structure or content of the legislation
establishing the functions.

His Honour then details some changes which took place between Holmes' case and 1989 and, again, I

do not go to the detail of those. Some of them are

picked up in the authorities to which we will come.

At page 88 point 8 he says:

At the time of abolition of the office

and the going out of existence of the

Department of Motor Transport, the

Commissioner for Motor Transport was the

employer of some 3000 employees about 1100 of

whom were members of ATOF under a federal

award. These employees, together with about

8000 employees of the Department of Main

Roads, and 124 employees of a body known as

the Traffic Authority, were by operation of

clause 27 of schedule 7 ..... transferred to the

employment of the RTA.

His Honour sets out the relevant parts of that

clause:

"27 (1) Any members of the staff of the

Department of Main Roads or the Department of Motor Transport or of the staff attached to the Traffic Authority immediately before the commencement of this clause shall be taken to

be members of the staff of the Roads and

Traffic Authority employed under this Act.

(2) Any such members of staff shall (until

other provision is duly made) be employed in

accordance with the awards -

applying at the DMR.

There was substantially uncontested

evidence before the Deputy President as to

transfer of functions from the Department of showed the organisational structure of the

Department of Motor Transport as at 30 June

1988.

His Honour sets out the major functional divisions.

These functions, by operation of the package of amending legislation, were transferred to

the RTA. This required also the substitution

of the RTA for the Commissioner as the

Transport 11 2/10/90

relevant administrative authority in the

various Acts previously administered by the

Commissioner, several of which were retitled.

One exception was noted in the evidence called

by the RTA -

and that exception is set out, Your Honours, at the
bottom of page 89 and His Honour deals with the

insignificance of that exception at the top of

page 90, a submission made by my learned friend,

Mr Buchanan:

that one of the consequences of the functions

is that part only of the business of the

Commissioner, if one exists, was transferred

to the RTA.

There is no dispute that the functions which

were taken over by the RTA were the most

substantial part of the Commissioner's

functions. The 223 staff excepted represented

about 8% of the staff employed by the

Commissioner, and appear for the most part to have been engaged in one of 22 branches

identified in the Department's organisations

chart.

So that there was a minuscule or a very small part

of the functions which were separately dealt with

under the legislation, Your Honour, and I will come

to it in a moment.

In relation to other functions

transferred directly from the

Commissioner ..... to the RTA the mode of

transfer showed some variation in legislative

drafting. However, the most simple method

appears also to have been the most common.

The significant workload function of driver licensing is conferred by section llAA(l) of

the Motor Traffic Act 1909 which reads:

"(1) Driver's licenses of such classes as may

be prescribed may be granted and renewed by

the Commissioner."

The transference of function was executed in

that instance by omitting "Commissioner" and
inserting instead "Authority" being the RTA
(clause 18 -

et cetera.

McHUGH J: Your argument very much depends on reading the

words "an employer" in that successor clause as

simply meaning one of the five bodies described in

the enumerated paragraphs in (1).

Transport 12 2/10/90

MR KENZIE:  Yes, Your Honour.

McHUGH J: If you read the words "an employer" as meaning

one of those bodies who employs persons in the

transport industry, that is the finish of your

case?

MR KENZIE:	Yes, Your Honour.
McHUGH J:	Now, why should it not be read that way?
MR KENZIE:	Your Honour, there are a number of reasons why

it should not be read that way. They flow from the

decision of the Court in Holmes which expressly
construed the rule itself as not being confined to
the transport industry and once you accept that
construction of the rule then to read the transfer

provision in the way that Your Honour suggests - -

McHUGH J: But you are talking about the first part of the

rule. I was in Holmes's case but I cannot

remember, was there any argument about the

successor/assignee provisions?

MR KENZIE:  I do not know whether there was any argument

about it, Your Honour, but the second successor

provision was specifically incorporated by

Sir Harry Gibbs in his judgment and, in our

respectful submission, utilized by the High Court

in the construction of the rule in such a way as to

catch the Commissioner for Motor Transport an
employer which was found in that case to be beyond

the transport industry. Perhaps I should go

directly to Holmes's case, Your Honour.

MASON CJ: Yes, there may have been some deficiencies in the

argument in Holmes's case, Mr Kenzie.

MR KENZIE:  I was not going to suggest that.

MASON-CJ:  No, I know you would not .. It would be convenient

if you came to Holmes' case directly.

MR KENZIE:	Indeed, Your Honour. Your Honour, with great care, may I say, but there were two arguments in
Holmes' case and the rule in Holmes' case was in
the form that is relevant to the proceedings here
and there were submissions made to the Court that ATOF could not create an industrial dispute in
relation to employees of the Commissioner for Motor
Transport because, and this appears from page 69
point 9, for two reasons, firstly:

because the Commissioner for Motor Transport

is not an employer in an industry;

Transport 13 2/10/90

and that was a submission which was based upon

propositions which were really dealt with in the

CYSS case or at least referred to and not put to bed in the CYSS case, then dealt with in a way

which perhaps would have been inconsistent with

some of these submissions, and secondly: because ATOF is not entitled under its rules

to enrol as members employees of the

Commissioner for Motor Transport who are

engaged in clerical and administrative work
and is therefore unable to make on behalf of

such employees a demand - And then, Your Honours, Mr Justice Gibbs then sets

out something of the history which was relevant to

the exercise immediately thereunder:

The Commissioner for Motor Transport is a

body corporate constituted under the Transport

(Division of Functions) Amendment Act, 1952,

section 3, as amended by the Transport

(Division of Functions) Further Amendment Act,

1952, section 6, and the State Transport (Co-

ordination) Amendment Act, 1954, section 5.

I will indicate to Your Honours that the history in relation to that is contained in the application

book towards the rear and I will give Your Honours

a reference to that in a moment.

Before the last-mentioned Act was passed

the title of the head of the Department now
administered by the Commissioner for Motor
Transport was the Superintendent of Motor
Transport. That Department performs functions

under a number of statutes of the State of New

South Wales.

And then His Honour sets out the three categories

which Justice Munro picked up on page 70 and at the

top of page 71 point 2 of the judgment. His Honour

says: 

The department itself - - -

MASON CJ: You do not need to go through all this, do you?

If you get to the bottom of page 72 and the top of page 73, do you not see there the rejection of the proposition that you are concerned with?

MR KENZIE:  Yes, Your Honour, but I need to start just a

little bit earlier to fully answer Justice McHugh's

question, because what His Honour does, when he

sets out the rule at the bottom of page 71 and then

he says at page 72 point 1:

Transport 14 2/10/90

Then follows a long list of employers

including "the Commissioner for Motor
Transport (New South Wales)", a number of

other public officials or corporations amongst

which is "The Board of Land and Works

(Victoria) -

et cetera and then he sets out subrule 2 of rule 6:

Notwithstanding anything hereinbefore

contained -

(b)(i) persons employed in a professional

capacity by -

The Superintendent of Motor Transport (New

South Wales) . And then, Your Honours, he sets out the relevant

part of the successor provision, that is the second successor provision in the condition of eligibility and it is there set out. He has not set out all

the rule but he comes to the successor provision

and sets that out.

He then deals with whether the organization is

confined to employers within the transport industry

at 72 point S. He rejects the contention that the

Commissioner was engaged in the transport industry

and he rejects the contention that the nomination

of the individual employers which follows the

general words of rule 6(l)(a)(v) amounts to words

of limitation and not words of extension, so at the

bottom of that page:

On behalf of the Association it was submitted

that in this clause the word "including"

should be read, not as a word of extension,

but as meaning "such as", and that it was

inserted out of an abundance of caution to

cover the employers specifically mentioned,

provided that they are in the transport

industry. There are a number of reasons why I

first place the result would be to render the	feel bound to reject this submission. In the
words "the Commissioner ..... nugatory for all
practical purposes.

So he is approaching the rule practically and

correctly, in our submission. He says that it

might otherwise catch some people but not many, and

then at point 2 on page 73:

Then the fact that, by par. 2, it was thought

necessary expressly to exclude persons

employed in a professional capacity by the

Superintendent of Motor Transport (an

Transport 15 2/10/90

expression which must now be understood as

referring to the Commissioner for Motor

Transport) indicates that it was considered that if it had been for this exception such persons would have been eligible to be members

of ATOF by virtue of par. 1 (a). In other

words, par. 2 (b) (i) was drafted on the

assumption that the word "including" in

par. 1 (a) was extensory in effect.

Then His Honour says, about four lines down that:

I would add that rules of this kind should not

be subjected to the same meticulous scrutiny

as a deed carefully prepared by lawyers -

et cetera, a passage which is completely consistent

with the other authorities on our list, the exercise here is one of generous construction

and not a restrictive approach.

Now, Your Honours, in our submission,

His Honour sets out the succession rule and it does

not sit there in the air as it were, Your Honours.

His Honour sets out the succession part of the rule in subrule (2), because he is giving it work to do in relation to the superintendent of Motor

Transport - - -

McHUGH J: Yes, well I think it must follow that once you

accept that an employer need not be in the

transport industry then it necessarily follows that

the business of that employer, which is referred to

in the successive clause also is outside.

MR KENZIE:  Yes, Your Honour. In our respectful submission,

Holmes' case a complete answer to the contrary

proposition and the court would proceed on the

basis that neither the designated employers in

6(1), nor the transfer provision, is so confined. A contrary reading would be to rob the successive

provision of work to do in relation to the

designations in 6(1) and it would be inconsistent

with the approach in Holmes.

So, Your Honours, we in fact say, and we put the submission this high, Your Honours, that when

one examines the judgment in Holmes the use made of

the successive provision and the legislation which

is referred to by Mr Justice Gibbs at the top of

page 70 of the decision, then Holmes' case is

really decisive here because the successor

provision was, in fact, used - a different

successor provision but relevantly not a different

successor provision was used in relation to the

Commissioner and was used to pick up the

Transport 16 2/10/90

Commissioner in that case, and if that be right

then that is the end of the case but it has a

different end to the one that Your Honour was

suggesting a short time ago.

Your Honour, as I indicated to the Court, the provisions that His Honour was then referring to

were dealt with and summarized in the application

book from pages 159 through to 164. Your Honours

will find a summary - and this was a document

tendered in the proceedings by the RTA - of the

history of the legislation, including the

legislation Mr Justice Gibbs picked up.

MASON CJ: Mr Kenzie, could I ask you this question: were

the two paragraphs that are at the end of

clause l(a) of the membership eligibility rule

inserted after the decision in Holmes' case, that

is -

All other airline companies ..... and a

successor or assignee or transmittee.

MR KENZIE:  No, Your Honour. They were -

MASON CJ: They were in the clause at the time of

Holmes' case?

MR KENZIE:  Yes, Your Honour. Holmes' case is a case which

deals with the rule in a form relevant to the

present proceedings. There have been amendments,

not to that part of the rule, but subsequent

amendments, Your Honour.

Now, Your Honour, I was directing

Your Honours' attention to the summary that was set

out at pages 159 and following.	The summary, in
fact, goes back to the 1932 legislation.	On
page 159 it goes back to the 1932 legislation.	I

do not need to trouble Your Honours with all of it.

There were various developments in the legislation in New South Wales because different views

prevailed at different times as to the appropriate

allocation of functions between departments and the

like.

If I could refer Your Honours to the 1932 Act

at 159 point 5, section 3(l)(b) -

set up a Department of Road Transport and

Tramways to be administered by the

Commissioner for Road Transport and Tramways. I think we can pass over the 1950 Act at page 160

point 5, and come to the 1952 legislation. There

were two Acts relevant in 1952 - on page 161

point 2 - the Transport (Division of Functions)

Transport 17 2/10/90

Amendment Act set up a Department of Transport and

Highways administered by a director. That is

page 161 point 3, and -

a Department of Government Tram and Omnibus

Services to be administered by the

Commissioner for Government Tram and Omnibus

Services.

So splitting at that stage public transport from road transport, and that is the genesis of the

judgment in Holmes' case where they said that the

Commissioner for Motor Transport who took over one

of the two arms was not himself engaged in the

transport industry, Your Honours.

McHUGH J: Successive New South Wales governments never seem

to have been able to maintain any policy about

this.

MR KENZIE:  Indeed, Your Honour, the history was one of wild

legislative swings, but - - -

MASON CJ: Well, that seems to be the consistent policy they

have pursued.

MR KENZIE:  Yes, Your Honour. In any event, one of the

swings took place in 1952 where there was a

division of the functions as between the two

authorities which were established. Section 11

provides that -

for the cessation as from the date of the
commencement of the Act of the position of the

Commissioner for Road Transport and Tramways and for the powers, authorities, duties and

functions, including the power to recommend or

concur in the making of regulations conferred

or imposed upon the Commissioner for Road
Transport and Tramways by or under any Act and
performed by the Director of Transport and

Highways and the Commissioner for Government

Tram and Omnibus Services -

et cetera. So the functions are split between the

Director of Transport and Highways and the

Commissioner for Government Tram and Omnibus

Services.

Then there is the further Amendment Act 1952

which you will find at 162 point 5 -

Section 3(1) of the Act provides for a

Superintendent of Motor Transport.

Transport 18 2/10/90

Section 4(1) of the Act changes the name of the Department of Transport and Highways to

Department of Motor Transport.

Section 4(2) provides that where you see in

this Act or any Act the reference to the Department
of Transport and Highways it is to be taken to

refer to the Department of Motor Transport and:

(b) the Director of Transport and Highways

shall be read, deemed and taken to refer to

the Superintendent of Motor Transport.

Section 5 of the Act validates all action taken by the Minister -

et cetera, and section 6:

The body corporate -

that is the director established by the 1952 Act;

referred to in section 5 of this Act .....

(i) be reconstituted, and

(ii) consist of the Superintendent of Motor

Transport, and

(iii) be known as the Superintendent of Motor

Transport. Section 6(2) is set out. I do not read it, and

then you come to 1954, page 164 point 6,

Your Honours; this is the last of the Acts I

think relevantly dealt with by Mr Ju.stice Gibbs in

Holmes, the State Transport (Co-ordination)

Amendment Act 1954. Section 5 provides for:

(a) the change in name from the Superintendent

of Motor Transport to the Commissioner for

Motor Transport.

And (b) and (c) I pass over, and (d):

Inheritance of powers etc. of Superintendent
of Motor Transport by Commissioner of Motor
Transport.

Your Honours, I think the 1954 Act is before

the Court and, in our respectful submission, there

are provisions within it with are analogous to the

provisions in the Transport Administration Act 1988

to which I will almost immediately come. Could I

direct Your Honours' attention to the actual terms

of the State Transport (Co-ordination) Amendment

Act 1954.

Transport 19 2/10/90

McHUGH J:	What is the purpose of this submission?
MR KENZIE:	Well, Your Honour, it is necessary to show that

what the High Court was doing in Holmes' case when

it applied the successorship provision to the rule,
to the Commissioner for Motor Transport, was not

dealing simply with something like a change of

name, but was dealing with a body which went over

and inherited all the functions and the like and

was dealing with legislation which, in our

submission, is similar to the legislation here. It

is supportive of our contention that Holmes' case

is decisive here.

McHUGH J:	But it must depend upon the facts of the individual case?
MR KENZIE:	Well, yes, Your Honour. must inevitably be some differences. We concede that there

I mean, in

this case some part of the functions were hived off

and sent somewhere else so that there is no perfect

analogy factually.

McHUGH J: Supposing in this case the functions had been

given to the State Attorneys-General Department;

would you still be arguing that you had coverage of

the Attorneys-General Department?

MR KENZIE:  Well, Your Honour, if the functions were so

allocated, then coverage would exist, if one could

trace the functions under the rule on our

construction, but it has to be borne in mind - and

I know I have put this before, Your Honour - that

one would not really fancy the prospects of success

of an organization which sought to go into an

industry which was, on any view, completely foreign

to the operations that had relevance for the Union

historically.

I mean, the mechanism for dealing with that is

not to say that the federal Commission has no power

to come to grips with a claim made by a union

caught by these developments. I mean, that would

simply mean that the organization which had members

and a whole lot of members sitting out there would

not have the capacity to go to the Commission and

say, "Please do something about it, at least by

means of a log of claims".

The legislative mechanism is the mechanism which follows the finding of an industrial dispute

and it is a decision as to whether to make an award

and if the Commission feels that ATOF has no

business in the Attorney-General's Department, well

the way in which it is done under section 111 in
the present Act, it will uphold a submission on the

part of someone who wants to make it.

Transport 20 2/10/90

McHUGH J:	But it is very much a circular argument because if you have coverage, you go out and you enrol all
the employees in the Attorneys-General Department
and then you go to the Commission and you say,
"We've got all the members and we create a
dispute", so you get jurisdiction that way.
MR KENZIE:	Well, Your Honour, we are dealing with a

transfer of functions and on our submission - and

we will have to come to it a little later - it is

not to be thought that the membership in such a

circumstance would be acquired by the organization
only by enrolling people pursuant to its expanded

conditions of eligibility after the transfer and in

reliance upon an expansive construction of its

conditions of eligibility.

In the second part of our submissions we do

submit that regardless of whether the conditions of

eligibility be given an expanded construction, none

the less ATOF was competent to make claims on

behalf of its members who were people for whom it

had been industrially catering for years and

getting federal awards for years for employees of

the Commissioner.

McHUGH'J:  Does your claim in this case cut across the Public Service Association's coverage?

MR KENZIE: Well, Your Honour, the actual industrial claim -

the log of claims is a claim for employees of the

RTA and so there would be - - -

McHUGH J: But hitherto, have they been governed in

New South Wales?

MR KENZIE:  Your Honour, the RTA was itself created in 1989

out of an amalgam of the Department of Main Roads

and the Department of Motor Transport. The

industrial history was that the Department of Motor

Transport was regulated by a federal award and mirror State awards to which both the PSA and the

ATOF and its State counterpart were parties. The

Department of Main Roads, which was the larger of

the two departments which went into the

amalgamation, was the Public Service Association

regulated by State awards. So, it has that sort of

history.

But what happens, of course, is that you get the merger in January 1989 and a number of

questions then arise. One of the questions which

then arose was whether the federal award which

existed in relation to the Commissioner for Motor

Transport employees survived by virtue of

section 61 of the Conciliation and Arbitration Act,

a question which is, we submit, different from the

Transport 21 2/10/90

question of construction of the rules. That is the

history of it, Your Honour.

But, Your Honour, in so far as there is an

industrial question that arises following this

question, it is a question within the jurisdiction

of the Commission and the Commission will then

determine what is the appropriate industrial

regulation in much the same way, Your Honour, as it

can do it now by virtue of section 118 of the

federal Act to resolve demarcation disputes. If

the federal Commission today decides that it wants

to determine a demarcation dispute in fact existing

between two unions, one of which has coverage and

one of which does not, then of its own motion it

can act on the basis of an anticipated industrial

dispute and demark the work as between those unions

in reliance on section 118, in our respectful

submission. This is no different. It is just a

different mechanism whereby the Commission gets

jurisdiction to determine what industrially should

be done, that is all, and that is what

Mr Justice Munro emphasizes in his judgment. He

says, "this is but step one" and that is all it is,

Your Honours.

Your Honour, I will not trouble Your Honours

with the detail of the 1954 Act but I refer

Your Honours to section 5:

the name of the Superintendent of Motor for Motor Transport.

In section 5(2):

As from the commencement of this section, in

the construction, and for the purposes of any

Act, by-law, regulation, ordinance ..... any

reference to ..... the Superintendent of Motor Transport shall be read, deemed and taken to refer to the Commissioner for Motor Transport.

Then (d):
The alteration of name of the body corporate
reconstituted by section six of
the ..... Further Amendment Act ..... shall not
affect any property, powers, rights,
authorities, duties, functions, liabilities or obligations of such body corporate or render defective any legal or other proceedings -
et cetera.	Now, Your Honours, whilst we say, of

course, there is no perfect analogy, we say that in

that context the High Court decided Holmes' case in

accordance with the submissions that we now make

Transport 22 2/10/90

and that reason is really inconsistent, in our

respectful submission, with a rejection of the successorship rule to pick up the transfer of

functions from the Commissioner for Motor Transport

to the RTA.

Your Honours, the relevant part of - could I

refer Your Honours to the relevant part of the 1988

legislation, that is, the Transport Administration

Act 1988. It is the principal piece of legislation

in the legislative package and I will not need to

take Your Honours to all the other Acts which have

been described and their effect by Justice Munro.

The Transport Administration Act 1988 finally dealt

with three authorities which presently operate in

the State of New South Wales.

The first is the State Rail Authority of

New South Wales dealt with in section 4 on page 3

of the Act, Your Honour, I think. Section 4(1):

There is constituted by this Act a corporation

with the corporate name of the State Rail

Authority of New South Wales.

Section 5 has it:

shall operate railway passenger services and

railway freight services.

And subsection (2):

shall continue to operate the railway services

which were provided by it immediately before

the commencement of this section.

And, I refer to section 6 but do not read it.

Then, Your Honours, you have section 20 on page 9,

the State Transit Authority, the second of the two

authorities:

There is constituted by this Act a corporation

with the corporate name of the State Transit

21 (1) The State Transit Authority shall

operate bus services.

(2) The State Transit Authority shall

continue to operate the bus services which

were provided by the Urban Transit Authority

immediately before the commencement of this

section -

Authority of New South Wales.

and also -

22 (l) ..... ferry services.

Transport 23 2/10/90

It continues to operate the ferry services. That

is the legislative device which is used there.

Those authorities are said by those sections to be

authorities which are reconstituted and they carry

on the functions of the old authorities. In our

respectful submission, they would clearly be caught

by any successor provision and are successors,

transmittees or assignees.

In the case of the RTA, Your Honours, the

position was slightly different because it was

attended by a coming together of two authorities, a

circumstance which, in our submission, does not

affect the applicability of the eligibility rule

and that is dealt with on page 18, section 46,

Your Honours. 46(1):

There is constituted by this Act a corporation

with the corporated name of the Roads and

Traffic Authority of New South Wales.

(2) The Road and Traffic Authority -

(a) has the functions conferred or imposed on

it by or under this Act, the State Roads Act

1986, the Traffic Act 1909, the Motor Vehicles

Taxation Act 1988 or any other Act; and

(b) is, for the purposes of any Act, a

statutory body representing the Crown. So that subsection picks up by name some of the

principal Acts and refers to other Acts of which
there were a great many dealt with by

Mr Justice Munro in his judgment and in relation to

those other Acts there were basically two

legislative devices, either the Acts were repealed

and replaced by new Acts which referred to the RTA

instead of the Commissioner or the Acts were not

repealed but they were simply amended with

references in them to the Commissioner being

substituted by references to the RTA.

Then, Your Honours, there is a schedule to the

Act, schedule 7, relevantly commencing on page 68

of the Act. Schedule 7, Part 2, there are:

Provisions relating to State Rail Authority -

which I do not read but it is the same legal entity

as the old State Rail Authority. Part 3,

clause 13, similarly -

Provisions relating to State Transit

Authority

Transport 24 2/10/90

and then one comes to the Roads and Traffic

Authority in clause 22 and following clauses:

In this Part -

"former Authority" means -

(a) The Commissioner for Main Roads (being

the corporation constituted under

section	6 .....
(b)	The Commissioner for Motor Transport

(being the corporation constituted under

section 6 of the Transport (Division of

Functions) Further Amendment Act 1952; or

(c) the Traffic Authority of New South

Wales -

which is a smaller authority the employees of which

were employees of the Commissioner for Motor

Transport in any event.

23 (1) Each former Authority is abolished.

(2) The Department of Main Roads and the

Department of Motor Transport are abolished -

and their assets are transferred consistent with

clause 24.	I will not read it all, Your Honours,
but it is quite comprehensive.	I direct

Your Honours' attention to it: the transfer of contracts, arrangements and other property

liquidated, unliquidated claims and the like.

Clause 27, on the next page, I have read.

That forms part of Justice Munro's judgment - that

is the transfer of staff. Preservation of

administrative and other action, appeals and the

like, clause 28. Directions, clause 32, and I do

not read it all but Your Honours can get the flavour of it. And then, clause 41, Part 7:

(1) In any other Act, or in any instrument

made under any Act or in any other document of

any kind, a reference to (or required
immediately before the commencement of this

clause to be read as a reference to) -

(c) The Commissioner for Motor Transport

shall be read as a reference to the Roads and

Traffic Authority -

that is 41(l)(c).

Transport 25 2/10/90

Your Honours, we simply say that as a legislative

package, although there is a difference in

methodology as between the three authorities, the

end result for present purposes is the same and it

constitutes the Commissioner, successor, assignee

or transmittee, within the meaning of the rules,

unless those words are construed restrictively, and

such a construction would be contrary to the

authorities in our submission.

Your Honours, we deal with these submissions

on page 2 of our outline, Your Honour, and we say

in (d) on page 2 that it is a mistake to approach

the transfer provision as though it caused the

eligibility rule to have the same meaning as

section 61(d) of the Conciliation and Arbitration

Act 1904 as amended. Your Honours, section 6l(d)

does use words which are similar to those, and

indeed some of the same words that you will find in

the condition of eligibility transfer provision

but, of course, the statute has different work to

do and the phraseology is not, in any event, the same. Section 61 disappears in that part of the old Conciliation and Arbitration Act which does not

have to do with the question of whether a dispute

can be found, it is in that part of the Act which

deals with the consequences of awards once made -

it is an entirely different part of the Act as has

been commented upon by the Court in earlier cases.

Section 61:

An award determining an industrial dispute is

binding on .....

(d) in the case of employers, any successor

to, or any assignee or transmittee of, the

business of a party to the dispute or of a

party bound by the award, including any

corporation which has acquired or taken over

the business of such a party.

Your Honour, the validity of that provision,

formerly section 29(b)(a) was upheld in

circumstances where the provision was in the same

form but did not pick up reference to a party to

the dispute. In the Journalist's case, and if I

could give Your Honours a reference to that, it is

on our list of authorities and we come to it for a

different purpose, that is Proprietors of the Daily

News v Australian Journalists Association, (1920)

27 CLR 532, and in that case the Court was divided

on the question of whether the Act, in its then

form, picked up persons who were not parties to the

dispute at the relevant time and, indeed, it was

that case that was ultimately followed by an

amendment to the Act which included the reference

to "parties".

Transport 26 2/10/90

Your Honours, the majority of the Court in that case held that absent the reference to parties

to a dispute, the provision did not pick up the

person who was not a party to the dispute at the

relevant time. Justice Higgins was one of those

who dissented and although in dissent his

observations in relation to the approach to be

taken to this piece of legislation are, in our

submission, significant. He points out that really

the section is in the part of the Act which makes

it clear that it is designed with preserving the

effect of federal awards and at page 545, he says,

at about point 4:

Even if the words of sec. 29 (ba) may be

treated as equally consistent with either

meaning - either "after the award," or "before

or after the award" - that meaning should be

accepted which best furthers a main object of

the provision, the meaning which prevents

evasion of any obligation which may be created

by the award.

And, Your Honours, although His Honour was in

dissent those observations, in our respectful

submission, are relevant to the approach to be

taken even to section 6l(d). There is no reason

why section 6l(d), leave aside the condition of

eligibility, would be construed narrowly or

restrictively because it is there to ensure that
rights which have been gained after intervention by

the federal Commission, having heard the arguments

on the merits presumably, or by consent, should be

preserved or otherwise and the approach of

Mr Justice Higgins is appropriate, in our respectful submission. There is just no reason,

Your Honours, and no commonsense behind the view

that you read provisions like that restrictively

though, of course, they have -to be read consistent

with the Constitution.

In any event, Your Honours, we submit in (d)

of our submissions that it is a mistake to approach

the transfer provision as though it caused the

eligibility rule to have the same meaning as 6l(d),

for this reason that the eligilibity rule, where it

contains the transfer provision, is manifestly

including a part of the rule which is designed to

have work to do by reference to the designated

bodies which immediately precede it. So you have a

rule which says V, then Designated Bodies, and then

underneath that you have a successorship assignment

and transmission provision.

Now, Your Honour, that rule is there for a

purpose. It is designed to operate on any of the

Transport 27 2/10/90

employers which are set out in the rule and the
proper construction of the rule, certainly the

construction consistent with the authority, is one

which allows it to have work to do by reference to

the government departments and other bodies which

are named in the rule, and we deal with that really

in (e) of our submissions, Your Honour. It is

clearly intended to apply to any of the employers

enumerated in the conditions of eligibility and it

would be contrary to the ordinary meaning of the

rule to constue it in such a way as to deprive it

of application to the statutory authorities, one of

which is the Commissioner for Motor Transport and

those submissions are entirely consistent with

Holmes, Your Honour, in our submission.

In (f) we point out that there is no dispute

that the RTA is an employer and a statutory

authority representing the Crown in right of the

State of New South Wales covered by

subparagraphs (ii) and (iii), although not within

the Transport Industry on our concession. Your

Honours, in (g) we come to Hillman's case, which is one of the cases which has been concerned with the

application of section 6l(d) and we submit that

even if, Your Honours, contrary to our primary
contention, the Court is disposed to construe the
relevant part of the eligibility rule by reference
to section 6l(d), not an appropriate approach

because of the context in which the transfer rule

appears in the rule, but even if the Court is

disposed to look at section 6l(d) for assistance,

then there is no authority of this Court which

would stand in the way of the use of section 6l(d)

or the rule on that construction, for the purpose

of catching the Commissioner. There is authority

of the Commission which is to the contrary and

which, in our submission, is incorrect and

represents a misapplication and a misunderstanding

of Hillman's case, (1924) 35 CLR 260.

Your Honours, may we say at the outset,

Hillman's case has been relied upon by those

members of the Industrial Relations Commission in support of the contention that section 6l(d), and

therefore the eligibility rule, could not catch the

Commissioner, and we say that that reliance is

misplaced in so far as Hillman's case is concerned,

and in so far as there is authority which has been

decided on that view of Hillman's case, it should

not be followed. Your Honours, Hillman's case was

really an application for a declaration made by an

individual following award proceedings in the

Commonwealth Court of Conciliation and Arbitration

and the proceedings appear to have been affected by an admission that was made, which admission appears

at the bottom of page 261 of the report. The case

industrial nexus between the industry in connection

with which the organization is registered, and

the - - -

McHUGH J: Yes, but at least the eligibility rule was wide

enough to cover a membership of the employees as

employed by that employer.

MR KENZIE:  Your Honour, we submit that if one goes to the

judgment in the Dunlop Rubber case, one can detect,

with respect, the great difficulty that the Court
then had in identifying the requisite nexus and,

with all respect to Their Honours, I mean, the task

is a very difficult one, and a reading of the

Dunlop Rubber case shows that it was only the very

vaguest of principles which emerged in that case in

Transport 114 2/10/90

relation to the requisite nexus. It could not be

suggested that the submissions that we put forward

are inconsistent with the Dunlop Rubber case

because we simply submit that eligibility is a

requirement in relation to the gaining of

membership but it is not a present requirement and

there is nothing in the statute and nothing in the

Constitution to make it so.

Now, it is all consistent with Dunlop and

Dunlop should not be elevated to some status that

the respondents would seek it to have, Your Honour,

and that is what we - - -

MASON CJ:	Mr Kenzie, time is marching on.
MR KENZIE:	Yes, Your Honour.
MASON CJ:	How long is the balance of - - -
MR KENZIE:	I am very close to conclusion, Your Honour.
MASON CJ:	I see.
MR KENZIE:	Your Honour, we submit that that conclusion is

entirely consistent with all of the authorities to

which Mr Jackson went - Gough's case, Neil's case and the like. We submit that Mr Justice Murphy's

dissenting judgment in Neil's case, in so far as presently relevant, is not inconsistent with the

approach taken by the majority.

Cases like Gough and Neil where the Court has

said, and it has said time and again, that

eligibility is a prerequisite for the creation of

an industrial dispute simply were not dealing with

questions such as the present. In those cases the
dispute that was sought to be created was a paper
dispute sought to be created on the evidence only

in respect of the eligibility provision. The

Commission was not asked to find the existence of

an interstate industrial dispute based upon the

fact that the organization·in question had as

members persons who were validly enrolled but who

were affected by a change in the industrial
situation.	The present case simply did not arise.

In Neil's case Mr Justice Murphy was simply

contemplating the present question and his judgment

in this regard is completely consistent with the

majority, in my respectful submission.

Your Honours, the point was taken that the RTA

was not in existence at the time of the service of

the log. In our respectful submission, that does

not in any respect damage the finding of dispute.

This point was taken before

Deputy President Polites. The Deputy President

Transport 115 2/10/90

found, in that case, that there was an interstate

industrial dispute created by the service of the

log and on pages 59 and 60 of the application book

it was dealt with. He said at 59 point 9:

This argument is fully answered by sub-clauses

24(d) and (g) of Schedule 7.

He referred to schedule 7, the transitional

provisions, which I have read and he says:

A log having been properly served on

inter alia the Commissioner for Motor

Transport and the Commissioner for Main Roads,

in my opinion, these proceedings are validly

on foot against the RTA. This conclusion

makes it unnecessary to consider the effects

of the renewal and refusal of the demand

against the RTA during the proceedings before

me.

Your Honours, before the point was not resurrected

on appeal the materials before the Court do not go

to the renewal of the demand in relation to the RTA
post 16 January 1989 but, in fact, the same log of

claims was renewed upon the creation of the RTA

when the matter came back before the Commission.

It was not accepted and the RTA was simply added,

effectively, as a respondent - or sought to be

added as a respondent to the dispute found

previously by the Commission. That, Your Honours,

is consistent with authority and, Your Honours, if

authority be needed for the proposition that an

interstate industrial dispute can exist

notwithstanding the fact that not all persons had

served at the same time but that a log of claims is

served subsequently on persons to ensure that an

interstate industrial dispute genuinely exists,

could we refer Your Honours to the Reg v Cohen

Ex Parte Workers Compensation Board of Queensland,

38 ALR 129, at 135 and 136. We also refer

Your Honours to Part 7 clause 41 of the Transport

Administration Act 1988.

Your Honours, our friend relied upon the role

of eligibility clauses within the Act. No one

disputes that the provisions of the Act, both the significant but the recognition and the significance of those provisions does not damage the submissions of the prosecutors, in our
Conciliation and Arbitration Act and the Industrial

respectful submission.

Your Honours, as to Mr Buchanan's submissions,

we desire to respond to only two: firstly, he

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submitted that the authorities in question were

agents of the Crown for relevant purposes.

Your Honours, all that we desire to submit in relation to that is that the legislation to which the Court's attention has been directed is clearly

sufficient for the purpose of rendering the
departments, the authorities, the bodies carrying

on business for the purpose of the eligibility

rule.

On any analysis, in our respectful submission,

unless one takes the approach of Justice Hill in
the Industrial Commission, those corporations are
carrying on business and that conclusion, unless

the eligibility clause be construed intermittently

narrowly gives rise to a situation in which there

is eligibility coverage.

Your Honours, our friend referred to Williams

v Hursey and the alleged frustration of the

purposes of the Act.	We have really dealt with
that earlier in our submissions.	We submit that

there is nothing inconsistent between our
submissions and the proper operation of the Act.

Indeed, the contrary submissions invite a

distinction between the capacity of an organization

to act for its members in an industrial manner and
the capacity of persons to participate in the

affairs of an organization for electoral and other

purposes, a distinction which it is not easy to see

and, indeed, impossible to see from the

legislation.

In Holmes's case, and we concede that Holmes's case, the VEF case, concerned an attempt to act on

behalf of persons who were within the conditions of

eligibility, the Court said that it would be

strange to find such a result; that is, a

situation in which the organization could have

validly members within it and a capacity to act on

behalf of them but not the capacity to act

industrially on behalf of them.	And they are the
principles upon which we rely.

Your Honours, our friend submitted that there

was no interstate dispute in so far as the

individuals are concerned. Our primary submission
has been that the organization has had the capacity

at all times to act as a party principal and,

accordingly, we have said that the agency question

does not really arise. It is sufficient for our

purposes to submit that our friend's approach to

the concept of interstate industrial dispute in so

far as the individual is concerned really invites

the consequence that you cannot have separate

parties with interests which are disparate who can

be attached to an interstate industrial dispute.

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If, at the end of the day there is discernible

an interstate industrial question then different

people may have different views in relation to that

question and the fact that some respondents have a
limited interest or an interest in only part of the

matters in relation to a log of claims and do not

have a general interest in rejecting the lot does

not mean that those persons cannot be gathered

together with a whole host of other respondents and

collectively made parties to an interstate

industrial dispute.

We would have submitted that that conclusion

was consistent with authority, if it please the

Court. We would refer generally to Terbutt's case

and I am sorry we do not have the reference, Your

Honour, but I know the Court will be familiar with

Terbutt's case.	Your Honour, they are our
submissions.

McHUGH J:  Can I just ask you one question, it is a

technical matter? Why was not Commissioner Baird

made a party to these proceedings?

MR KENZIE:  Because Commissioner Baird retired a day or two

after the decision of the majority, Your Honour.

MASON CJ:  Thank you, Mr Kenzie. The Court will consider

its decision in this matter.

AT 5.07 PM THE MATTER WAS ADJOURNED SINE DIE

Transport 118 2/10/90