R v Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77 (22 December 1972)

HIGH COURT OF AUSTRALIA

THE QUEEN v. WATSON; Ex parte AUSTRALIAN WORKERS' UNION. [1972] HCA 72; (1972) 128 CLR 77

Conciliation and Arbitration (Cth)

High Court of Australia.

Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4) and Gibbs(5) JJ.

CATCHWORDS

Conciliation and Arbitration (Cth) - Registered organizations - Eligibility for membership - Builders' Labourers' Federation - Operators employed by ready-mixed concrete suppliers to produce concrete at batching plants - Whether doing concrete work in connexion with or incidental to building operations - Powers of Conciliation Commissioner - Prohibition - Conciliation and Arbitration Act 1904-1972 (Cth), ss. 60, 132.

HEARING

Melbourne, 1972, October 4, 5;

Sydney, 1972, December 22. 22:12:1972

PROHIBITION

DECISION

December 22.

The following written judgments were delivered:-

BARWICK C.J. In this matter I have had the advantage of reading the reasons and his Honour's conclusion that the rule nisi for prohibition should be made absolute, on the ground that the work described in the respondent Commissioner's findings was not work which rendered the workers doing it eligible to be members of the respondent organization. (at p78)

2. I do not regard those workers as being employed in the building industry however much the product of their labour may be useful to or used in that industry. But I agree with the submission made on behalf of the respondent organization that the identity of the industry in respect of which the organization is registered is not definitive of the eligibility of persons to be members of the organization in any case where the eligibility clause of the constitution of the organization travels beyond the bounds of the industry in respect of which the organization is registered. So much is decided in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1956) 97 CLR 71 . Thus, if in the present case the terms of cl. 4 of the constitution of the respondent organization do not fully confine the scope of the clause to the building industry, which is the industry in respect of which the organization is registered, the eligibility of the workers in question to be members of the organization must be decided upon the terms of cl. 4 itself. No doubt in the event of there being any ambiguity in that clause it would be proper to resort to the nature of the industry in respect of which the organization is registered as an element in the resolution of that ambiguity. (at p79)

3. However, I think it is proper to point out that an important duty is cast upon the Industrial Registrar when asked to register the constitution of an organization basing its claim to registration upon s. 132 (1) (b) of the Conciliation and Arbitration Act 1904-1972 (Cth) or, and in particular, of an amendment of the eligibility clause of such an organization, to ensure that the persons who may become its members, apart from its officials, are confined to workers within the nominated industry. As I apprehend the scheme of the Act in relation to organizations, it is that there may be on the one hand industrial organizations which are representative of workers in a particular industry irrespective of the craft they follow, and on the other hand, craft unions which are limited in membership to those who follow some particular craft or crafts. Such a conflict as arose in Reg. v. Dunlop Rubber Australia Ltd. [1957] HCA 19; (1956) 97 CLR 71 ought not to occur if the Registrar fully performs this duty. (at p79)

4. In the instant case, in my opinion, the eligibility clause properly understood is restricted to workers in the building industry itself either doing the building work or doing work which is properly described as incidental to the building operations, generally, but not necessarily in all cases, on the building site. In my opinion, it is not a proper use of language to describe the work done in or about a ready mixed concrete plant as being work done in the building industry or in a relevant sense as work incidental to building operations. Accordingly, in my opinion, the respondent organization was not capable of raising a dispute with the respondent employers on behalf of the workers described in the Commissioner's findings. The conclusion, therefore, is that the Commissioner had no jurisdiction to entertain the matter upon which he entered; prohibition should therefore issue. (at p80)

McTIERNAN J. In my opinion the order nisi should be discharged.

(at p80)

2. The Commissioner decided in the matters to which the order nisi refers that employees engaged in the production, delivery and sampling of ready-mixed concrete at batching plants "off-site" are eligible for membership of the Australian Builders' Labourers' Federation. The Commissioner decided this after consideration of rules of the federation and the scope of its registration as an organization - it is registered as an association of employees "in and in connexion with the building industry". I think the question of the capacity of this organization to represent the industrial interests of any employee is properly one for the Conciliation and Arbitration Commission to determine, and it is not necessary for this Court to decide the question in this case: R. v. Hickman; Ex parte Fox and Clinton, per Dixon J. [1945] HCA 53; (1945) 70 CLR 598, at pp 613-614 and R. v. Portus; Ex parte Federated Clerks Union of Australia, per Latham C.J. [1949] HCA 53; (1949) 79 CLR 428, at p 433 . (at p80)

3. The Commissioner has jurisdiction under the provisions of the Conciliation and Arbitration Act 1904-1970 (Cth) relating to the powers and functions of a Commissioner, to entertain the matters to which the order nisi refers and, if he thinks fit, to make an award in each of them. Jurisdiction to make an award is conferred on a Commissioner by s. 33 (2) of this Act. The jurisdiction is arbitral. This is not a reason for denying that the commission or a Commissioner may determine the meaning of "in and in connexion with the building industry", or the connotation of the term "labourer" in the federation's rules. An observation in the case of R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR, at p 614 is in point:

"From a practical point of view, the application of the

Regulations" (then in question) "should be determined

according to some industrial principle or policy and not

according to the legal rules of construction and the analytical

reasoning upon which the decision of a court of law must rest." (at p80)

4. Registration of an association of employees under this Act, as an organization in or in connexion with an industry, has not a limiting effect on membership analogous to that of the memorandum of association of a trading company on its objects: Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 CLR 71, at p 72 . The Commissioner, in fact, determined the connotation of "labourer" by taking into account what he considered is established by usage. Section 25 of the Act says: "Each member of the Commission shall keep himself acquainted with industrial affairs and conditions". I take the view that under the provisions of this Act relating to the powers and functions of the commission that the capacity of an "organization" to represent the industrial interests of employees for whom it is claiming an award in the commission, is a question to be adjudicated upon by the Commissioner in determining whether there is an industrial dispute. The question is not extrinsic to the jurisdiction possessed by the Commissioner. It follows that there is no matter of prohibition and prohibition will not lie (Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1938) 59 CLR 369 ; Amalgamated Society of Carpenters and Joiners, Australian District v. Haberfield Pty. Ltd. [1907] HCA 37; (1907) 5 CLR 33 ). (at p81)

5. Counsel for the federation criticized the locus standi of the prosecutor. I reserve for future consideration the points which he raised if that be necessary. (at p81)

MENZIES J. This is the return of an order nisi for prohibition obtained by one union - The Australian Workers' Union which I shall call the union - against a member of the Commonwealth Conciliation and Arbitration Commission, the Australian Builders' Labourers' Federation - which I shall call the federation - and a group of employers, to restrain further proceedings in three matters. In two of these matters, industrial disputes have been found to exist between the federation and the employers, and orders have been made in part settlement of these disputes. When the third matter came on before the commission, it was contended by the union - which had been authorized to intervene - that the constitution of the federation rendered it impossible for the federation to create a dispute by making the demands which had been made upon the employers in respect of certain workers. This point has now been raised with respect to all three matters. (at p81)

2. As I have said, the moving party is the union and, at the hearing, a question arose whether it had locus standi to seek prohibition. The debate which has taken place has satisfied me that, even if the union is a stranger to the alleged disputes, this circumstance does no more than affect the discretion of the Court to grant prohibition. Here, the employers who are parties to the matters have taken the same stand as the union, and have indicated that if it be found that the union has no locus standi, they would be prepared to take over the proceedings for prohibition. In all the circumstances, the Court should, I think, decide these proceedings upon their merits. (at p82)

3. The issue is whether the federation is competent to represent workers who are employed by the respondent employers whose business is to produce ready mixed concrete at batching plants - whether off-site or on-site - within classifications described by the Commissioner as follows:

"The labour force employed by ready-mixed concrete

producers at batching plants (whether off-site or on-site) is

engaged in the production, delivering and sampling of ready-mixed

concrete. The numbers employed at a plant vary from

one to nine employees but the most general size would be three

to five employees. The classifications relevant to a plant with

three employees engaged in production are set out below

together with a description of their duties:

(a) The First employee is required to understand the basic

functions of cement, water and admixtures in concrete. He

also requires mechanical aptitude. His duties are:

(i) Take instructions from the shipper, who may be the

Plant Manager or Supervisor in charge of yard, as to

necessary specifications and quantity for each order.

(ii) Make visual examination of sand and take sand

moisture readings at least twice daily where the

appropriate equipment is available at the plant.

(iii) Operate the batching machinery and follow the batch

formula, copies of which he has. The appropriate

quantities of the necessary component parts, i.e., the

particular types of sand, of stone and of cement, as

well as all necessary admixtures are then weighed and

included in the mix. By so doing, he controls the

accuracy of the batching process, to ensure that the

correct strength and consistency are achieved, including

the control of the initial water content.

(iv) Assess consistency of concrete by visual inspection.

(v) On most plants, to record on a pad, various batching

information which may include all or some of the

following:

truck number

mix type

maximum aggregate size

cement content

amount of concrete (cubic yards)

time and sequence of the batch

(vi) Perform minor preventive maintenance on plant

installation.

(vii) In most yards at the end of each day to check the

amount of cement and in some yards other materials

in stock.

(b) The Second employee requires a proven mechanical aptitude

and a driver's licence. His duties are:

(i) Drive a front end loader in loading into bins the

various types of sand and stone delivered to the plant.

(ii) Unload other materials, e.g., admixtures.

(iii) Complete vehicle log.

(iv) Perform routine maintenance.

(c) The Third employee must be able to identify various sizes

and types of aggregates, sand and additives. His duties

are:

(i) Take delivery of the various types of sand, stone,

cement and admixtures.

(ii) Check that amounts of incoming materials appear

correct, sign the docket and hand dockets to plant

office.

(iii) Visually inspect the contents of such deliveries and

advise the plant supervisor of any apparent irregularities

in shape, size and cleanliness.

(iv) Advise the plant supervisor when stocks of materials

reach the specific minimum volumes.

(v) Perform routine maintenance procedures (such as

greasing and oiling) associated with aggregate bins and

materials handling equipment.

There may be different combinations of these duties between

these employees and in addition, there are various types of

cleaning and similar duties to be performed. In smaller plants

one or more of the employees who perform the above duties may

drive company owned trucks. Other employees of the ready-mixed

concrete producers carry out other duties not associated

with these proceedings including sales contact and representation,

receipt of orders, scheduling of deliveries, mechanical

maintenance and supervision of the above operations." (at p83)

4. Rule 4 of the federation rules sets out its constitution as follows:

"The Federation shall consist of an unlimited number of

persons employed or usually employed as Builders' Labourers

throughout Australia on or about any building, or assisting

any bricklayer, mason, plasterer, carpenter, plumber or any

tradesman engaged in building operations, or employed on any

making or contracting job in wood, stone, brick, concrete, iron

or steel, or combination of these or other materials incidental

to building construction, and any labourer engaged in the

construction, repair, demolition or removal of buildings, or as

scaffolder, rigger, gear hand, gantry hand or crane hand or as

dogman, or as drainer on all building contracts, and any

labourer excavating ground for foundations and basements of

buildings, or levelling ground on a proposed building site, or

doing concrete work, tarpaving or asphalt work, or mortar or

concrete mixing in connection with, or incidental to the foregoing

operations, together with such other persons whether

employees in the industry or not, as have been appointed

officers of the Association and admitted as members thereof." (at p84)

5. The construction of this rule is difficult, but at least one thing is clear, namely that members of the federation - apart from officers - must be builders' labourers. A worker whose usual occupation is not that of a builders' labourer is not eligible for membership of the federation. (at p84)

6. The first question is therefore whether workers doing, at batching plants, the kind of work already set out, are builders' labourers as described in the foregoing rule. (at p84)

7. A builders' labourer is normally a worker who fetches and carries for a tradesman employed in building operations. Thus, for instance, a brick-layer's labourer brings the bricks and the mortar to the brick-layer who, in the exercise of his tradesman's skill, lays the bricks. Although having regard to the words of the constitution of the federation, it would, I think, be unduly restrictive to confine its membership to labourers who assist tradesmen as aforesaid, there can be no doubt that the doing of such work is at the core of the conception of a builders' labourer. It is an industrial, not a craft, union. Tradesmen such as brick-layers, masons, carpenters, or plumbers are not eligible for membership of the federation. There have, however, been included in r. 4 words of extension which could be interpreted as going beyond its leading provisions. The particular words of the constitution of the federation which create difficulty in this case are:

"... or doing concrete work, tarpaving or asphalt work, or

mortar or concrete mixing in connection with, or incidental to

the foregoing operations ..."

These words must, I think, be regarded as words of extension and as making workers falling within their scope eligible for membership of the federation. They are not confined to the description of jobs immediately proceeding them but should, I think, be read as a reference to all work of the kind specified in the rule connected with building. Indeed, I do not think it would be a misunderstanding of the rule to regard the words "foregoing operations" as equivalent to "building operations" notwithstanding that by way of amendment the former phrase was substituted for the latter. Such a construction is really dictated by the description "builders' labourers" which denotes labourers employed by builders and their sub-contractors in building operations. (at p84)

8. Thus, labourers usually employed in concrete mixing for paving the surrounds of a building would fall within the words, as well as those usually engaged in concrete mixing for the purpose of making the floors of the building. (at p85)

9. I am disposed to think that some workers at a concrete batching plant are for some time engaged in mixing concrete in what could be described as in connexion with, or incidental to, building operations. At least part of the wet mix concrete which, at such plants, is run into transit mixers for carriage to the job, has been mixed for use in building operations. The case for the federation cannot, I think, be put higher than that, with this addition; namely, that concrete for this use forms the bulk of the concrete so mixed. The question is whether this is sufficient to constitute the workers at the concrete batching plants "builders' labourers". (at p85)

10. I think not. (at p85)

11. First, those who are employed at the batching plants are not employed by builders or their sub-contractors in building operations. Secondly, such employees, to the extent to which they do mix concrete, do so for a variety of purposes, e.g. to make roads, subways, runways, hard-standing, wharves, buildings, bridges, slabs and other such concrete objects. The occupation of such workers is not, I think, to be defined by the use to be made of some part of the concrete which they mix. Nor can it be thought that their employment changes in character according to the use to be made of their product. Their employment is the same whether they are making concrete for the floor of a city building or for a railway tunnel. Such employees are not concrete mixing in connexion with, or incidental to, the operations described in the rules. It is common ground that the words "the foregoing operations" in the rule would not cover general construction work or the making of concrete articles. Accordingly, it seems to me that the words of limitation which follow the words "concrete mixing" in r. 4, support the conclusion that the employees concerned are outside the eligibility clause of the rule, even if the work which they do could otherwise be regarded as the work of builders' labourers. Concrete mixers, etc., employed by builders whether on-site or off-site are not within the scope of this judgment. (at p85)

12. Accordingly, in my opinion, the employees of the respondent employers in concrete batching operations as described are not builders' labourers, and they are not eligible for membership of the federation. (at p85)

13. This question is sufficient to dispose of the matter and it is not necessary for me to consider the further arguments of counsel for the union and the employers that even if such workers are entitled to become, and do become, members of the federation, the federation could not represent them because their work is not fairly to be described as in the building industry - the industry in which the federation is registered. It is sufficient here to say that the argument presented for a restricted application of the decision of this Court in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Unions of Australia [1957] HCA 19; (1957) 97 CLR 71 failed to convince me that if workers engaged in concrete batching, did validly become members of the federation that it could not represent them in claims against employers even if those employers are themselves outside the building industry so that their employees would not be engaged in the building industry. (at p86)

14. Accordingly, I consider that, because the federation is seeking a builders' labourers' award for workers who are not eligible for membership of the federation, because they are not builders' labourers within the meaning of the constitution of the federation, prohibition should go to restrain further proceedings of the matters to the extent of the federation's claims in respect of such employees. (at p86)

WALSH J. Three matters are pending in the Commonwealth Conciliation and Arbitration Commission. Each of them was initiated by a letter of demand written on behalf of the respondent, the Australian Builders' Labourers' Federation (the federation), which forwarded a log of claims set out in the form of an award. In two of the matters formal findings have been made of the existence of an industrial dispute. In the third matter such a finding has not yet been made. (at p86)

2. When the scope clause in each of the logs of claims is compared with the scope clause in the existing Builders' Labourers' (Construction on Site) Award 1962 it is seen that one of the changes sought by the federation was that the new award claimed by it should apply, whereas the existing award did not apply, to the employment of persons in "concrete batching plants on and off the site". (at p86)

3. From evidence filed in the present application it appears that in May 1971 the federation procured the listing of two of the abovementioned matters for hearing on 28th May 1971. The purpose of that listing of the matters is stated, in an agreed statement of facts, to have been the hearing of a claim by the federation that the scope of the award should be widened so as to apply to "concrete batching plants on and off the site". That hearing continued at various times up to March 1972 and on 12th May 1972 the Commissioner gave a decision which has led to the present proceedings. During that period the third matter was initiated. The decision given was treated as one which would apply in relation to all three matters. That decision was that the federation has a right to enrol as members certain classes of employees engaged in mixing concrete at off-site batching plants. Having so decided the Commissioner went on to say that it was a matter for further argument whether effect should be given to that right by an award and that the question whether the right should be shared with other organizations and whether it extends to all batching plants were matters for further consideration. (at p87)

4. The Australian Workers' Union (the union) obtained an order nisi to prohibit the respondents (the Commissioner, the Federation, The Victorian Chamber of Manufactures and certain manufacturers of Ready-Mixed Concrete) from proceeding further in the three matters "in so far as such matters concern the wages and working conditions of persons employed as operators of concrete batching plants on and off the site". During the hearing of the application to make that order absolute, learned counsel for the union requested that the application should be treated as being for an order referring to employees more specifically described. In the amended form suggested, the prohibition would be against further proceeding in the matters "in so far as such matters concern the wages and working conditions of the classes of employees described in appendix D of exhibit O of the said affidavit". That is a reference to the affidavit of Tom Nicholson Pearce Doughtery, sworn on 13th September 1972. Exhibit O consists of an agreed statement of facts which had been prepared in connexion with a proposed reference to the Commonwealth Industrial Court of certain questions of law. Appendix D to that statement of facts contains a description of the work done by employees in concrete batching plants. Its contents, as repeated in the Commissioner's reasons for his decision, are set out in the judgment of Menzies J. on this application. (at p87)

5. If it appears from undisputed facts as to the nature of the work done by the classes of employees described in that appendix, and as to the circumstances in which they are employed to do that work, that those employees are not within the eligibility clause in the constitution of the federation, upon the proper construction of that clause, it follows in my opinion that the Commissioner will be acting without jurisdiction if he proceeds to carry out his stated intention of proceeding, in the course of dealing with the matters pending before him, to act upon the basis that the federation has a right to enrol certain classes of those employees. If so, I am of opinion that it is clear that this Court can grant prohibition to restrain him from so acting and that its jurisdiction to grant that remedy is not excluded by s. 60 of the Conciliation and Arbitration Act 1904-1972 (Cth). The question which has to be decided is whether upon the proper construction of the eligibility clause, it applies to the employees described in Appendix D or to any of them. (at p88)

6. Two preliminary matters and some further facts should be mentioned. An issue was raised before the Commissioner as to the validity of changes which were made in 1943 in the conditions of eligibility. Before this Court the argument has been conducted upon the assumption that those changes were validly made and that it is the eligibility clause as thus amended which is to be considered. (at p88)

7. A question was raised whether the union had any interest in the matter entitling it to apply for prohibition. It was submitted that the employees to whom the application relates are not within the eligibility clause in the union's constitution and could not lawfully be members of the union. In my opinion, it is not necessary in the circumstances of this case to decide whether or not that submission is correct. The union was granted leave to intervene in the proceedings before the Commission. In its application to this Court it was supported by respondents who are directly concerned as parties who would be bound by awards made in the proceedings. Counsel for those respondents made an application that they should be joined or substituted as prosecutors, if that should be thought to be necessary. The circumstances are not, in my opinion, such that it is necessary to determine, in order to decide how the discretion of the Court to grant or to refuse prohibition should be exercised, or to decide what order as to costs ought to be made, the question whether the union has a direct and special interest in the matter or is in the position of a "stranger". Without any formal amendment of the record it is proper, in my opinion, to deal with the application in the same way as the Court would have dealt with it if one or more of the respondent employers had joined in the application. (at p88)

8. In the evidence details were given, which need not here be set out, as to the measuring and mixing operations carried out in "wet" batching plants and in "dry" batching plants and as to the equipment and the methods used in them. An account was given of the historical development of the methods of mixing concrete. This history need not be recounted, but it should be stated that the companies which now produce and have for some years past produced ready-mixed concrete and which operate and have operated off-site batching plants are not builders. The producers of ready-mixed concrete sell it to customers who use it for various purposes. Some are building contractors, some are for various purposes. Some are building contractors, some are civil engineering contractors needing concrete for tunnel linings, dam spillways, drains and foundations for precast pipes. Some are road contractors and some are engaged in building bridges. Some are public authorities responsible for sewerage and drainage or for tramways. Some are home owners. Some are precast concrete manufacturers who supply home owners and others with concrete. In a particular area surrounding Melbourne and in a particular year, fifty-four and one-tenth per cent of the concrete sold went to building contractors. Some of the other customers would use the concrete purchased by them, according to the view taken by the Commissioner, for projects upon which builders' labourers would be employed and he concluded that something over sixty per cent of the concrete to which the figures related would have been produced for use "in connection with the foregoing operations", mentioned in the eligibility clause in the Constitution of the Federation. (at p89)

9. That clause is in the following terms:

"The Federation shall consist of an unlimited number of

persons employed or usually employed as Builders' Labourers

throughout Australia on or about any building, or assisting

any bricklayer, mason, plasterer, carpenter, plumber or any

tradesman engaged in building operations, or employed on any

making or contracting job in wood, stone, brick, concrete, iron

or steel, or combination of these or other materials incidental to

building construction, and any labourer engaged in the construction,

repair, demolition or removal of buildings, or as

scaffolder, rigger, gear hand, gantry hand or crane hand or as

dogman, or as drainer on all building contracts, and any

labourer excavating ground for foundations and basements of

buildings, or levelling ground on a proposed building site, or

doing concrete work, tarpaving or asphalt work, or mortar

or concrete mixing in connection with, or incidental to the

foregoing operations, together with such other persons whether

employees in the industry or not, as have been appointed

officers of the Association and admitted as members thereof."

It was suggested during the hearing that the reference at the beginning of the clause to "persons employed or usually employed as Builders' Labourers" had the effect that all of the following provisions of the clause referred only to persons employed to assist some tradesman or other skilled operator engaged in building operations. The subsequent use in two places of the unqualified expression "any labourer" is one of several features of the language of the clause which make its construction difficult. But I am prepared to assume in favour of the federation that the clause is not confined in its application to persons who are merely assistants in the doing of work performed, with that assistance, by some other persons. I am prepared to assume, also, that an employee is not excluded from the scope of the clause merely for the reason that his own work requires some degree of skill for its performance. (at p90)

10. The clause contains the words "or employed on any making or contracting job in wood, stone, brick, concrete, iron or steel, or combination of these or other materials incidental to building construction". In my opinion, the employees described in appendix D are not made eligible by those words to be members of the federation. The words do not refer to persons employed in making concrete or in making any of the other materials mentioned, but to those employed on a "making or contracting job" in concrete or other materials. The expression a "making job" is an odd one, but it must refer, in my opinion, to the making, by the use of materials which are already available, of some structure or some article, the making of which is incidental to building construction. (at p90)

11. The only other part of the clause which needs discussion consists of the words "or doing concrete work, tarpaving or asphalt work, or mortar or concrete mixing in connection with, or incidental to the foregoing operations". It is mainly upon those words that learned counsel for the federation relied. It is not clear what is meant by the words "the foregoing operations". It is possible that they should be read as limited to those operations the description of which appears immediately before those words. But, in my opinion, the expression "foregoing operations" should be regarded as referring to any of the "operations" mentioned earlier in the clause. But on that view the operations to which reference is made are all described in terms which limit them to work associated with buildings which are being constructed, repaired, demolished or removed or with preparations for building construction, such as excavating or the levelling of building sites. The question for decision may be stated as being whether or not the employees with whom this application is concerned can be said to be employed in concrete mixing "in connection with, or incidental to" operations of the kind thus described, which may be classified in a broad way as building operations. (at p90)

12. I have come to the conclusion that the employees described in appendix D, who are engaged in the mixing of concrete for sale by their employers, who are not builders, to customers who use it for a variety of purposes, cannot be said to be employed in mixing concrete in connexion with, or incidental to building operations. It seems to me that so far as the character of the employment is concerned, the use to which the concrete will be put is not, in the circumstances of this case, a matter of importance. I agree with Menzies J. in thinking that the employment does not change in character according to the use made of the product and that the employment is the same whether the employees are making concrete for the floor of a building or for a tunnel. (at p91)

13. I have considered the question whether or not the fact that more of the concrete produced is used for buildings than for other purposes warrants a conclusion that the work of the employees is in connexion with, or incidental to the construction of buildings. I have decided that that conclusion is not warranted. I do not think that in the circumstances disclosed by the evidence in this case, the conferring, by means of the words now under consideration, of eligibility for membership of the federation is dependent upon a quantitative factor of that kind. It is not necessary to decide whether the result would be different if a producer of concrete conducted a business consisting exclusively or almost exclusively of the supplying of concrete for buildings. I need express no opinion as to whether in such a case there would be a relevant connexion between the work done by the employees and building operations. Here the product of the work of the employees is used to a significant extent for purposes which have no relationship to building operations. I am of opinion that it could not be maintained that the use for building of any portion, however small, of the concrete produced would provide a sufficient link between the making of the concrete and "the foregoing operations" mentioned in the clause. But if that cannot be affirmed, I do not think that the application of the clause can depend upon whether the proportion of the concrete produced which is used for buildings (a proportion which may fluctuate from time to time and from place to place) is more or less than one-half. (at p91)

14. I am of opinion that prohibition should be granted to the extent sought in the order nisi, treated as amended in the manner which has been described above. (at p91)

GIBBS J. The prosecutor, the Australian Workers' Union, has obtained an order nisi for a writ of prohibition directed to the respondents who are, respectively, a member of the Commonwealth Conciliation and Arbitration Commission ("the commission"), the Australian Builders' Labourers' Federation ("the federation"), the Victorian Chamber of Manufactures and a number of companies which engage in the manufacture of ready mixed concrete, prohibiting them from proceeding further in three matters pending in the commission, "in so far as such matters concern the wages and working conditions of persons employed as operators of concrete batching plants on and off the site". In each of these matters the federation served on certain employers a log of claims and a letter of demand and notified the Industrial Registrar of the likelihood or the existence (the notification is ambiguous) of an industrial dispute. In two cases the commission made a formal finding that an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904 (Cth) (as amended) ("the Act") exists in the States of New South Wales, Victoria, South Australia, Tasmania and Western Australia between the federation and the employers named in the respective logs of claims and that the matter in dispute is the wages and working conditions in the building industry in the said States. No similar finding was made in the third matter but all matters were listed for hearing together and the prosecutor was granted leave to intervene in all of them. The logs were in the form of an award and the clause of the draft award which set out the kinds of employment to which it was intended to apply (the scope clause) included a reference to persons employed as "operators of ... concrete batching plants on or off the site". During the course of the proceedings before the commission it was submitted on behalf of the employers, with the support of the prosecutor, that the persons employed in off-site concrete batching plants were not eligible to be enrolled as members of the federation and that therefore the commission had no jurisdiction to grant the federation's claim so far as it concerned such persons. The Commissioner considered these submissions but rejected them. He said:

"After considering all the material put to the Commission

I have therefore come to the conclusion that the Federation has

a right to enrol as members certain classes of employees engaged

in mixing concrete at off-site batching plants. As to whether

that right should be given effect by an award is a matter for

further argument ..."

He then referred the parties into conference and said that the matters would be restored to the list on the application of any party. It appears from what I have said that although the log of claims extended to persons employed as operators of concrete batching plants on and off the site, an objection to jurisdiction was raised before the commission only in respect of operators of such plants off the site and that the order nisi went beyond that objection in including a reference to operators of such plants on the site. At the hearing before us counsel for the prosecutor sought leave to amend the order nisi to make it apply to the classes of employees described in appendix D to an agreed statement of facts which was exhibit O to an affidavit of Mr. T.N.P. Dougherty filed on 13th September 1972, but it is not clear that such employees are limited to those employed off the site. (at p93)

2. The jurisdiction of the commission depended on the existence of an industrial dispute; that is not merely a statutory but a constitutional requirement: s. 51 (xxxv.) of the Constitution. The federation could not, by serving a log of claims which was not met, create an industrial dispute as to the wages and working conditions of persons employed as operators of concrete batching plants if such persons could never become members of the federation pursuant to its rules: R. v. Portus; Ex parte Federated Clerks Union of Australia [1949] HCA 53; (1949) 79 CLR 428, at p 433 . The question to be determined, therefore, is whether persons employed as operators of concrete batching plants are eligible to become members of the Federation. The argument was mainly directed to the eligibility for membership of such persons as are employed as operators at off-site batching plants. (at p93)

3. Concrete has for over fifty years been used as a material in the building industry. When concrete was first used, it was mixed on the building sites by hand and later by mechanical means. When in the 1940's the need arose for larger quantities of concrete to be produced in a given time, companies, not themselves engaged in building, began to make ready mixed concrete in batching plants away from the building sites. At one time some builders attempted to compete with those companies by operating their own off-site batching plants but, according to the evidence, at the present time although some concrete is mixed by the employees of builders on the building sites, no off-site batching plants are operated by builders. Nowadays builders obtain most of their requirements for concrete - at least ninety per cent - from the producers of ready mixed concrete. Most of that ready mixed concrete is produced at batching plants away from building sites but a small proportion - in Victoria two and eight-tenths per cent - is produced at plants on or adjacent to building sites. The producers of ready mixed concrete do not sell it exclusively to builders. Of the ready mixed concrete produced in Victoria, fifty-four and one-tenth per cent is sold to building contractors and the balance is sold for a variety of purposes, for example, drainage and sewerage tunnels, bridges, tramway track settings, roads, footpaths, kerbs and channels, and aerodrome aprons and taxi-ways. However, some of the concrete which does not go directly to building contractors may nevertheless be used in building operations and the Commissioner estimated that, in all, something over sixty per cent of the total amount of ready mixed concrete produced would be so used. (at p93)

4. The nature of the duties of persons employed by ready mixed concrete producers at batching plants is described in a passage from the reasons of the Commissioner which is set out in the judgment of my brother Menzies and which I need not repeat. That passage contains the substance of appendix D to exhibit O to the affidavit of Mr. Dougherty, to which I have referred. In my opinion it clearly appears from that passage that not every person employed at a concrete batching plant can properly be described as the operator of a concrete batching plant. However, some of the persons employed at concrete batching plants do operate the batching machinery and the question in the present case is whether such persons are eligible to be enrolled as members of the federation. (at p94)

5. The rule of the federation which governs the eligibility of persons for membership - the Constitution, as it is called - appears in the certificate of registration of the federation in the following form:

"The Federation shall consist of an unlimited number of

persons employed or usually employed as Builders' Laborers

throughout Australia on or about any building, or assisting

any Bricklayer, mason, plasterer, carpenter, plumber or any

tradesman engaged in building operations, or employed on

any making or contracting job in wood, stone, brick, concrete,

iron or steel, or combination of these or other materials incidental

to building construction, and any laborer engaged in the

construction, repair, demolition or removal of buildings, or as

scaffolder, rigger, gear hand, gantry hand or crane hand or as

dogman, or as drainer on all building contracts, and any

laborer excavating ground for foundations and basements of

buildings, or levelling ground on a proposed building site, or

doing concrete work, tarpaving or asphalt work, or mortar or

concrete mixing in connection with, or incidental to the foregoing

operations, together with such other persons whether

employees in the industry or not, as have been appointed

officers of the Association and admitted as members thereof."

A question was raised before the Commissioner as to the validity of an amendment made to the rule in 1943 but this question was not pursued before us and the rule may be taken for present purposes to be as I have set it out. The question for decision in the present case depends on the proper construction of that rule. (at p94)

6. The only words of the rule that could possibly refer to the operators of concrete batching plants are those that speak of "any laborer ... doing concrete work, tarpaving or asphalt work, or mortar or concrete mixing in connection with, or incidental to the foregoing operations". In my opinion it would not be inappropriate to describe the operators of concrete batching plants as "laborers" and those operators clearly enough can be said to be doing concrete mixing. However, they will fall within the rule only if they are doing concrete mixing "in connection with, or incidental to the foregoing operations". It is not altogether clear whether "the foregoing operations" in this phrase means the operations of "doing concrete work, tarpaving or asphalt work" or whether it means "building operations", but in my opinion, having regard to the context of the clause as a whole, it should be given the latter and wider meaning. The crucial question then is whether the operators of concrete batching plants can be said to do concrete mixing "in connection with, or incidental to", building operations. The words "incidental to" are narrower and more limited than the words "in connection with" and any concrete mixing that can be described as "incidental to" building operations must necessarily be considered to be done "in connection with" those operations (cf. Re Rubber Plastic and Cable Making Industry Award (1963) 8 FLR 395, at p 400 ). It is therefore sufficient to consider whether the wider words cover the employees in question; if they do not, the narrower words will obviously fail to do so. (at p95)

7. The words "in connection with" are somewhat vague but in their ordinary meaning and in the context of the rule they require that there should be a relationship between the employment of the labourer doing the concrete mixing and the building operations. It cannot properly be said that a labourer does concrete mixing in connexion with building operations unless he is employed to mix concrete with a view to it being supplied for the purpose of such operations. It is not enough that subsequently the concrete may happen to be used in building operations or that more of it is used in building operations than for other purposes. A labourer who mixes concrete for use in a variety of operations, only some of which are building operations, is not employed in doing concrete mixing in connexion with building operations, any more than he is employed in doing concrete mixing in connexion with roadmarking or airfield construction if some of the concrete is to be used for those purposes also. As my brother Menzies has pointed out, the employment cannot change in character according to the use made of the product. The necessary connexion between the employment of the operator of a concrete batching plant and the building operations is lacking if he is employed to mix concrete some of which will and some of which will not be used in those operations. It follows that in my opinion the operators of concrete batching plants off the site do not do "concrete mixing in connection with, or incidental to building operations" within the meaning of the rule. On the other hand, I consider that the operators of concrete batching plants on the site would be eligible to join the federation if it be right to assume that concrete produced on site is used exclusively in building operations. (at p96)

8. Some slight reliance was also placed by counsel for the federation on the words in the rule which refer to persons "employed on any making or contracting job in wood, stone, brick, concrete, iron or steel ..." Those words, however, clearly refer to the use of the materials mentioned to make something or to perform a contract; they refer to the making of something out of concrete and not to the making of the concrete itself. They have no application to this case. (at p96)

9. In my opinion, for the reasons given, the operators of concrete batching plants off the site are not eligible to join the federation which is therefore not competent to represent them for the purposes of the Act. It follows that there is no industrial dispute covering such employees and that the Commissioner has no jurisdiction to proceed with the three pending matters so far as they concern the wages and working conditions of persons employed as operators of concrete batching plants off the site. (at p96)

10. Counsel for the federation sought to derive some assistance from s. 60(2) of the Act, which reads as follows:

"A determination or finding of the Commission upon a

question as to the existence of an industrial dispute is, in all

courts and for all purposes, conclusive and binding on all

persons affected by that question."

However, notwithstanding that section, "the existence of an industrial dispute extending beyond the limits of any one State is under the Constitution a jurisdictional fact which on prohibition cannot be controlled by the finding of the tribunal against which the writ of prohibition is sought": Reg. v. Portus; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537, at pp 540-541 . It is now well settled that the Parliament has no power to deprive this Court of the jurisdiction given to it by s. 75(v) of the Constitution to issue a writ of prohibition against an officer of the Commonwealth and that a commissioner appointed under the Act is "an officer of the Commonwealth" within that section: see R. v. Blakeley; Ex parte Association of Architects, etc, of Australia [1950] HCA 40; (1950) 82 CLR 54, at p 71 , and cases there cited. Of course, no occasion will arise for the exercise of the jurisdiction conferred by s. 75(v) to grant prohibition if the circumstances are such that the remedy of prohibition does not properly lie, and in cases where there is no relevant limitation of constitutional power it may become necessary, in order to decide whether prohibition lies, to reconcile, as a matter of construction, those statutory provisions which impose limits on the power or authority of the tribunal concerned with other provisions which limit or take away the right to prohibition. Some of the many authorities that deal with that question are cited in Reg. v. Judges of the Commonwealth Industrial Court; Ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313, at p 325 . If however, under the Constitution a tribunal cannot validly be given power in a particular matter, a statutory provision purporting to exclude prohibition in such a matter will be ineffective: R. v. Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, at p 399 . Moreover, "power to determine conclusively a question upon which jurisdiction is made to depend cannot validly be conferred upon a person or body in such manner as to enable a jurisdiction to be exercised which would exceed the limits of constitutional power": R. v. Blakeley; Ex parte Association of Architects, etc. of Australia (1950) 82 CLR, at p 89 . A commissioner cannot validly be given power conclusively to determine the question whether an industrial dispute exists, because under s. 51 (xxxv) of the Constitution he can only have jurisdiction conferred upon him if an industrial dispute does exist. In so far as s. 60 (2) of the Act purports to give conclusive effect to an erroneous finding that an industrial dispute exists it will be unconstitutional and ineffective. (at p97)

11. It was finally submitted on behalf of the federation that the Constitution of the prosecutor, properly construed, did not render the operators of concrete batching plants eligible for membership of the Australian Workers' Union and that for this reason the prosecutor had no interest to seek prohibition. In my opinion, the effect of the Constitution of the prosecutor is not in issue in this case. The prosecutor has a locus standi to seek prohibition even if it is right to regard it as a stranger to the proceedings in which it obtained leave to intervene: Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317, at p 327 . Assuming that the Court has a discretion to issue or withhold prohibition, the discretion should be exercised in the prosecutor's favour. From a practical point of view the prosecutor has a real and substantial interest in the proceedings. It has enrolled as its members persons employed by the producers of ready mixed concrete at batching plants, and its officers are members of boards constituted under State law in Victoria and Tasmania to determine the terms and conditions of employment of, inter alios, the operators of concrete batching plants. Moreover, the employers who are respondents to this application, and who incontestably have a legal as well as a practical interest in the proceedings to which they were parties, support the application and if necessary apply to be joined with or substituted for the prosecutor in seeking prohibition. Once it is held that the Commissioner is going beyond the limits of his jurisdiction, as fixed by the Constitution, in proceeding with the three matters so far as they concern the wages and working conditions of the operators of off-site concrete batching plants, it cannot be doubted that prohibition should issue. (at p98)

12. I would make absolute the order nisi but would amend its terms to prohibit the Commissioner from proceeding with the three matters so far as they concern the wages and working conditions of persons employed as operators of concrete batching plants off the site. (at p98)

ORDER

Order that the Writ of Prohibition issue out of this Court directed to the respondents prohibiting them and each of them from proceeding further in the matters in the Commonwealth Conciliation and Arbitration Commission numbered C. No. 1366 of 1969, C. No. 1169 of 1970 and C. No. 395 of 1971 in so far as such matters concern the wages and working conditions of the classes of employees described in Appendix D of Exhibit O of the affidavit of Tom Nicholson Pearce Dougherty sworn 13th September 1972 and filed herein. The respondent federation to pay the costs of the prosecutor and of the other respondents apart from the firstnamed respondent.