Eligibility rules referring to 'statutory corporations' in the context of local government industry clauses are construed as limited to corporations exercising public functions analogous to local government, not all bodies incorporated by statute.
Later decisions that cite R v Gough; Ex parte Municipal Officers' Association
Decisions cited by R v Gough; Ex parte Municipal Officers' Association
THE QUEEN v. GOUGH; Ex parte MUNICIPAL OFFICERS' ASSOCIATION ;
THE QUEEN v. SPICER; Ex parte MUNICIPAL OFFICERS' ASSOCIATION [1975] HCA 30; (1975) 133 CLR
59
Industrial Law (Cth)
High Court of Australia
McTiernan(1), Gibbs(2), Stephen(2), Mason(2) and Jacobs(2) JJ.
CATCHWORDS
Industrial Law (Cth) - Conciliation and Arbitration - Registered organizations - Rules - Eligibility for membership of organization - Persons usually employed by statutory corporations - Universities constituted by statute as bodies corporate - Whether employees eligible for membership of organization - Conciliation and Arbitration Act 1904-1973 (Cth), s. 60 (2).
HEARING
Melbourne, 1975, February 20, 21;DECISION
August 14.
2. The first application, to make absolute an order nisi for mandamus, is
directed to Mr. Commissioner Gough of the Conciliation
and Arbitration
Commission to require him to hear and determine an industrial dispute between
the Municipal Officers' Association
of Australia and the eight universities
relating to the terms and conditions of employment of the non-academic staff
employed by
those universities. (at p64)
3. The second matter, the application to make absolute an order nisi for a
writ of prohibition or alternatively for a writ of certiorari,
is directed to
three of the judges of the Australian Industrial Court in relation to
proceedings instituted by the Federated Clerks'
Union seeking the
de-registration of the Municipal Officers' Association under s. 143 of the
Conciliation and Arbitration Act 1904,
as amended, on the ground that the
rules of the Association had not been observed. (at p64)
4. In the Commission and in the Industrial Court the substantive issue was
the construction or interpretation of the eligibility
rule of the Municipal
Officers' Association - the Municipal Officers' Association being an
association registered under the provisions
of the Conciliation and
Arbitration Act. (at p64)
5. The requirements for eligibility for membership of the Association are set
out in r. 5, which reads as follows:
"5. - Constitution
The Association shall consist of an unlimited number of
persons employed or usually employed by Local Authorities,
Cities, Municipalities, Towns, Boroughs or Shires, or by
Statutory Authorities, Corporations, Trusts, Boards and
Commissions . . . . " (at p65)
6. It was contended by Mr. Shaw representing the Federated Clerks' Union of
Australia that the words "city, town, district, borough
or shire" qualify not
only the words immediately following but all the other nouns which appear
thereafter and that "Statutory Authorities,
Corporations . . . " must be
engaged in industrial pursuits of a local government character. (at p65)
7. Mr. Northrop appearing for the Municipal Officers' Association submitted
that by the use of the words "or by" in r. 5 of the
Constitution before the
words "Statutory Authorities . . . " two alternative groups of employers are
created. The first group dealing with local
authorities or municipalities. The
second group being unlimited in that respect. (at p65)
8. I agree with Mr. Northrop's interpretation of the rule. The word "or"
joins words while separating meanings and in the absence
of some clear
indication to the contrary this normal effect of the conjunction "or" should
not be departed from. This clear indication
to the contrary is not present in
r. 5 of the Constitution of the Municipal Officers' Association. As a
conjunction the word "or" is usually used to introduce the second of two
alternatives.
(at p65)
9. It is apparent that the word "Statutory" in the second group of employers
specified in r. 5 of the Constitution of the Municipal Officers' Association
is intended to qualify the word "Corporations", and all the other nouns
following as well
as "Authorities" especially since r. 3, the Industry Clause,
of the Constitution of the Association refers to "Statutory Corporations
Industry". Rule 3 reads:
"The Association is formed in connection with the Local
Government Municipal and Statutory Corporations Industry."(at p65)
10. Sir Owen Dixon said in R. v. Hickman; Ex parte Fox and Clinton (1945) 70
CLR at p. 613 , when interpreting the expression "coal-mining
industry":
"The question raised is one which, it might be thought,The ordinary meaning of "Statutory Corporation" is a corporation owing its incorporation to a statute and would include a university incorporated by act of Parliament and would thus include the eight universities upon which the log of claims was served. (at p66)
would turn upon the common understanding, among people
concerned with the coal industry and particularly with
industrial matters, of the manner in which the words "coal-mining
industry" are ordinarily applied".
11. The order nisi for mandamus directed to the Commission should be made
absolute and the Commission should proceed to hear and
determine the
industrial dispute between the Municipal Officers' Association and the
universities. It follows that the order nisi
for a writ of prohibition
directed to the Industrial Court should be made absolute. (at p66)
GIBBS, STEPHEN, MASON AND JACOBS JJ. These two matters arise in the course
of a dispute between two industrial organizations, the
Municipal Officers'
Association of Australia and the Federated Clerks' Union of Australia, which
for convenience may be referred
to as the Association and the Union
respectively. The question at issue in the dispute is whether persons employed
on the staffs
of eight universities, other than members of the academic
staffs, are eligible to be members of the Association. The universities
concerned are the following: Monash University, The University of Melbourne,
La Trobe University, The Flinders University of South
Australia, The
University of Adelaide, University of Queensland, Griffith University and
James Cook University of North Queensland.
(at p66)
2. The Association served on each of the universities a letter of demand
annexing a log of claims in the form of an award described
as the "Municipal
Officers' (Universities Staffs) Award 1974". The log related to salaries and
conditions of employment for persons
employed on the staffs (other than the
academic staffs) of the universities concerned. The universities did not
accede to the demands
contained in the letters of demand and log of claims and
the Association, in intended compliance with s. 25 of the Conciliation and
Arbitration Act 1904 (Cth), as amended ("the Act"), notified the Australian
Conciliation and Arbitration Commission of the existence
of an industrial
dispute. Pursuant to this notification the matter came before the Commission,
which was then called upon to determine,
under s. 24 (1) of the Act, whether
there was an industrial dispute and, if so, who were the parties and what were
the matters in
dispute. It is clear that no industrial dispute could have
existed between the Association on the one hand and the eight universities
on
the other unless the group or class which the Association sought to represent
in serving the letters of demand - namely, the members
of the staffs of the
universities (other than the members of the academic staffs) - were eligible
to be members of the Association.
The question whether the persons
constituting that group or class were eligible to be members of the
Association depended entirely
upon the proper construction of the rules of the
Association. The Commission, after hearing argument, came to the conclusion
that
an industrial dispute did exist between the Association and the
universities and on 9th September 1974 made a finding that such a
dispute
existed. (at p67)
3. Before the matter had proceeded further in the Commission the Union made
application to the Australian Industrial Court under
s. 143 (1) of the Act for
an order directing the cancellation of the registration of the Association on
the ground that the rules
of the Association, "in so far as they provide for a
matter in accordance with the prescribed conditions", had not been observed.
The case presented on behalf of the Union was that the Association was in
breach of its rules in purporting to enrol as its members
persons employed on
the staffs (other than the academic staffs) of the universities. There can be
no doubt that the rules of the
Association, in so far as they make provision
as to the eligibility for membership of the Association, do "provide for a
matter in
accordance with the prescribed conditions" within the meaning of s.
143 (1) (c) of the Act; see s. 132 (2) of the Act and reg. 115
(1) (d) of the
Conciliation and Arbitration Regulations. It was not in dispute that the
Association was purporting to enrol members
of university staffs (other than
academic staffs). The question that therefore fell for decision by the
Industrial Court was whether
such persons were eligible to be members of the
Association; if they were not, the Association would not be observing its
rules in
purporting to enrol them. The Industrial Court reached the conclusion
that the members of the university staffs in question were
not eligible to be
members of the Association and that the Union had established grounds for the
order which it sought. On 29th October
1974 it published its reasons for
reaching this conclusion and adjourned the proceedings, reserving liberty to
either party to have
the matter restored to the list, with a view to the
Association undertaking that it would cease to enrol as members persons
employed
on the staffs (other than the academic staffs) of universities. (at
p67)
4. On 4th November 1974, in deference to the decision of the Industrial
Court, the Commission revoked its finding that an industrial
dispute existed.
(at p67)
5. The Association now seeks to have made absolute orders nisi respectively
for a writ of mandamus directed to the Commission and
for a writ of
prohibition or alternatively for a writ of certiorari directed to the
Industrial Court. The submission on behalf of
the Association is that the
Commission had wrongly declined to proceed to hear and determine the matter
before it and that the Industrial
Court had no jurisdiction to hear and
determine the application by the Union or alternatively fell into error in
dealing with that
application. In each case, before it can succeed the
Association must establish that upon the proper construction of its rules it
may lawfully enrol as its members persons employed on the staffs (other than
the academic staffs) of the eight universities. (at
p68)
6. The rules of the Association that deal with the industry in respect of
which it is registered and with the conditions of eligibility
of its members
are the following:
"3 - INDUSTRY
The Association is formed in connection with the Local
Government Municipal and Statutory Corporations Industry."
"5 - CONSTITUTIONThe contention on behalf of the Association is that the members of the university staffs in question are persons employed by statutory corporations, it being conceded that the adjective "statutory" in r. 5 governs not only "authorities" but also inter alia, "corporations". It is submitted that the words "statutory corporations" simply mean corporate bodies which are created by statute and whose powers are conferred by statute. It is common ground that each of the universities concerned is constituted by a statute which provides that the university shall be a body corporate and proceeds to endow it with legal capacity. Therefore, it is submitted, each university is a statutory corporation within the natural meaning of the words of the rule. (at p68)
The Association shall consist of an unlimited number of
persons employed or usually employed by Local Authorities,
Cities, Municipalities, Towns, Boroughs, or Shires, or by
Statutory Authorities, Corporations, Trusts, Boards or
Commissions, in the following callings or avocations namely, City,
Town, District, Borough or Shire Clerks, Secretaries,
Treasurers, Engineers, Surveyors, Architects, Electricians or
Electrical Engineers, Inspectors, Superintendents, Paymasters,
Receivers, Accountants, Auditors, Valuers, Rate Collectors,
Registrars, Collectors, Clerks, Typists, Stenographers,
Foremen, Overseers, Draughtsmen, Curators, or in similar callings
or avocations, or as assistants to employees so employed
whether employed as aforesaid or not together with such other
persons as have been appointed Officers of the Association and
admitted as members thereof."
7. The argument of the Association as to the meaning of r. 5 cannot be
accepted. We are not concerned to discuss what ambit the
words "statutory
corporations" might have had if they had appeared alone or in another context.
If it were right to sever the words
"Statutory Authorities, Corporations,
Trusts, Boards or Commissions" from the rest of r. 5, and to construe them as
meaning any authority,
corporation, trust, board or commission constituted
under statute, the condition of membership stated by the rule would be
extremely
wide and indefinite and the rule would permit the Association to
enrol as its members persons employed by all sorts of bodies, public
and
private, whose only common characteristic would be that they were set up under
the provisions of a statute. Such a result would
not be likely to have been
intended. However, it is not permissible to construe those words in isolation;
in accordance with ordinary
principles they should if possible be given a
meaning that will render them harmonious with the rest of the instrument in
which they
appear. If statutory authorities and corporations within the
meaning of r. 5 included all authorities and corporations set up by
statute,
they would embrace all the "Local Authorities, Cities, Municipalities, Towns,
Boroughs, or Shires" previously mentioned,
because in Australia today such
instrumentalities of local government are constituted under statutory
provisions; the result would
be that the earlier words of the rule would be
rendered quite superfluous. In the context of the rule the generality of the
words
"Statutory Authorities, Corporations, Trusts, Boards or Commissions"
must be limited by the other words, earlier and later, with
which they are
associated, and which show that they were intended to have some flavour of
local government. This is not to ignore
the words "or by" on which the
Association so strongly relies; those words introduce a new class, but it is a
class not unconnected
with that earlier described. Moreover, the context
provided by r. 3 provides further assistance in resolving the ambiguity in r.
5. Although it is established that the conditions of eligibility of a
registered organization may validly extend beyond the industry
in respect of
which the organization is registered, that is no reason why, in attempting to
place a meaning on ambiguous words in
the eligibility clause, any assistance
provided by the industry clause should be rejected: see per Barwick C.J. in
Reg. v. Watson;
Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, at p 79
. The industry clause in the present rules (r. 3) supports
the conclusion
that
the statutory corporations
mentioned in r. 5 form part of one "industry" whose
other parts are local government
and municipal
bodies. In the context provided
by rr. 3 and 5 it is apparent that the expression "statutory corporations"
must be
limited to corporations
exercising functions of
a public nature in
some way analogous to those exercised by local authorities. (at
p69)
8. Indeed, the argument submitted on behalf of the Association is contrary to
the views expressed in this Court in Melbourne and
Metropolitan Tramways Board
v. Municipal Officers Association of Australia [1944] HCA 7; (1944) 68 CLR 628 , where the
Court rejected
the contention
that the registration of the Association was
invalid on the ground that
the description (in r. 3) of the industry
in
connexion with
which it was registered was meaningless and invalid. In the
course of
his judgment Rich J. referred to rr. 3 and
5 together for the
purpose of determining the meaning of r. 3, and said (1944) 68 CLR,
at p 637
:
"To ascertain the scope of the amended description of theMcTiernan J. expressed a similar opinion (1944) 68 CLR, at p 641 . The other members of the Court, Latham C.J. and Starke J., were less specific but their remarks (1944) 68 CLR, at pp 634, 640 do not indicate any disagreement with these views. (at p70)
organization, it is legitimate to take into account any relevant
provisions of its rules. The short phrase in the title is 'Local
Government Municipal and Statutory Corporations.' The
expanded phrase in the rules is 'local Authorities, Cities,
Municipalities, Towns, Boroughs or Shires, or . . . Statutory
Authorities, Corporations, Trusts, Boards, or Commissions.'
The local authorities specified are all authorities exercising
functions of a public nature; and when the phrase 'statutory
corporations' or 'statutory authorities, corporations, trusts,
boards, or commissions' is found in such a collocation, I think
that the natural and reasonable inference is that what is meant
is bodies of a public character exercising functions of a public
nature analogous to those of local government bodies, and not
private bodies established by or under statute, whether public
or private, for the purpose of conducting private enterprises or
activities."
9. For the purposes of determining the present matters it is unnecessary and
therefore undesirable to attempt to define the full
scope of the words of r.
5. Once it is accepted, as it must be, that the words "statutory corporations"
in r. 5 refer only to corporations
of a public character exercising public
functions analogous to those of local government bodies it becomes clear that
persons employed
on the staffs of universities are not eligible to be members
of the Association and that both applications made on behalf of the
Association must fail. (at p70)
10. In relation to the application for prohibition directed to the Industrial
Court a subsidiary argument advanced on behalf of
the Association was that the
Industrial Court should have treated itself as bound by the determination of
the Commission that there
was an industrial dispute - a determination that
could only rightly have been made if the members of the university staffs in
question
were eligible to be members of the Association. This argument was
based on the provisions of s. 60(2) of the Act. There are a number
of answers
to this contention but it is sufficient to say that the Commission, in
revoking its finding, was acting within the power
conferred by s. 24(1) of the
Act and that the finding having been revoked - and correctly revoked - it
would be a futility - indeed
ridiculous - to hold that it was wrong for the
Industrial Court on 29th October to make a decision which it would have been
bound
to make after 4th November. (at p71)
11. The orders nisi should be discharged. (at p71)
ORDER
Orders nisi discharged with costs.