Jumbunna Coal Mine No Liability v Victorian Coal Miners' Association

6 CLR 309

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(Judgment by: Isaacs J)

Jumbunna Coal Mine No Liability
v.Victorian Coal Miners' Association

Court:

Judges: Griffith CJ
Barton J
O'Connor J

Isaacs J

Legislative References:
Conciliation and Arbitration Act 1904 - The Act
Trade Disputes Conciliation and Arbitration Act 1892" (NSW); - The Act
Conciliation Act 1894" (SA) - The Act
Conciliation Act 1896 (England) - The Act
Industrial Conciliation and Arbitration Act 1900 (WA) - The Act
New South Wales Act 1901 (No 59) - s 7

Case References:
United States v Fisher - 2 Cranch 358
McCulloch v Maryland - 4 Wheaton
United States v Reese - 92 US 214
D'Emden v Pedder - 1 CLR
Illinois Central Railway Company v McKendree - 203 US 514
Grenada County Supervisors v Brogden - 112 US
Marshall v Grimes - 41 Miss 27
Nicol v Ames - 173 US 509
Buttfield v Stranahan - 192 US 470
United States v Coombs - 12 Pet 72
Perth Local Board v Maley - 1 CLR 702

Hearing date: 12, 15-19 June 1908
Judgment date: 6 October 1908

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Judgment by:
Isaacs J

The first objection with which I shall deal goes to the validity of the whole "Conciliation and Arbitration Act." The appellants say that the definition of "industry" is too wide as including occupations which are not "industrial" in the sense used in the Constitution -- and that the words being altogether general, cannot be separated by construction (as in the case of State railways), and so the whole must stand or fall together. That being so, it is further said that s 55, under which the respondent seeks to register inseparably adopts this definition of industry, and must fall with it.

In the first place, supposing the words are capable of bearing an interpretation which would carry the definition of "industry" beyond the constitutional power of Parliament, there is nothing in the Act which prevents the application of the well-known rule of construction ut res magis valeat quam pereat , a rule especially applicable to Acts of the Legislature. It is a well-established principle of construction that Parliament is presumed to act within its powers until the contrary is shown, and every intendment is in favour of its validity -- per Strong, J, in Legal Tender Cases , 12 Wall. 457, at p 531; Miller, J, in Trade Marks Cases , 100 US 82, at p 96; Peckham, J, in Nicol v Ames , 173 US 509, at p 514; White, J, in Buttfield v Stranahan , 192 US 470, at p 492. I adhere to my own observations on this point in Nishimura's Case , 14 ALR, at p 204, where English precedents are cited, and add one quotation from the judgment of Story, J, in United States v Coombs , 12 Pet. 72, at p 76 --

If the section admits of two interpretations one of which brings it within, and the other presses it beyond, the constitutional authority of Congress, it will become our duty to adopt the former construction, because a presumption never ought to be indulged that Congress meant to exercise or usurp any unconstitutional authority unless that conclusion is forced upon the court by language altogether unambiguous.

There is certainly no unambiguous excess of the limits imposed by the Constitution. Looking at s 2, stating the chief objects of the Act, which are substantially the prevention and settlement of industrial disputes, and to the definition of "industrial disputes" in s 4, which are carefully limited as in the Constitution, to those extending beyond the limits of one State, I feel no difficulty, if necessary, in similarly limiting the incidental expressions such as "industry." "Industry," I take, whatever the generality of the words in the clause defining it if that were read by itself, to be intended by Parliament as industry of a class within the ambit of which an industrial dispute within the meaning of the Constitution might arise. This is strongly supported by the words of Schedule B of the Act, which prescribes among the conditions to be complied with by associations applying for registration as organisations, that the rules must provide that the name of the association shall contain the name of "the industry" in connection with which it is registered.

I therefore am of opinion that whatever be the meaning of "industrial dispute" in the Constitution, the definition of industry in the Statute is not necessarily wider when read in conjunction with the rest of the Act, and this consideration alone would end the objection as to total constitutional invalidity. But I am also of opinion that the power under subs (XXXV) of s 51 of the Constitution extends over the whole range of Australian industry in the largest sense without qualification, wherever by reason of the numbers engaged in it and the area of its distribution it does or may give rise to a dispute extending beyond the limits of any one State, and thereby, in a manner beyond the control of any single State, disorganise the general operations of society, or interfere with the satisfaction of public requirements in relation to the service interrupted. The statutory definition of industry is consequently sanctioned by the Constitution, even if read in the most extensive manner suggested. I am not at all sure, however, that the Act does not even limit its signification somewhat more narrowly than the Constitution would warrant. An industry contemplated by the Act is apparently one in which both employers and employés are engaged, and not merely industry in the abstract sense, or in other words the labour of the employé given in return for the remuneration received from his employer. As suggested not only by the words defining "industry" itself, but also by Schedule B, and by such a phrase in the definition of "industrial dispute" as "employment in industries carried on by or under the control of the Commonwealth," etc, an "industry" as intended by Parliament seems to be a business, etc, in which the employer on his own behalf is engaged, as well as the employés in his employment. Turning to the specific definition of "industry," it rather appears to mean a business (as merchant), a trade (as cutler), a manufacturer (as a flour-miller), undertaking (as a gas company), a calling (as an engineer), or service (as a carrier), or an employment (a general term like "calling," embracing some of the others, and intended to extend to avocations which might not be comprised in any of the rest), all of these expressions so far indicating the occupation in which the principal, as I may call him, is engaged, whether on land or water. If the occupation so described is one in which persons are employed for pay, hire, advantage or reward, that is as employés, then, with the exceptions stated, it is an industry within the meaning of the Act. An industry so defined is one in which even in the narrower sense an industrial dispute within the words of the Constitution may arise, and would, therefore, be in any case supported by subs (XXXV) of s 51 of the Constitution. But I do not rest my judgment on the narrower view, as in my opinion the constitutional power is broad enough to include even the larger sense of industry.

The next question is also one of constitutional power, and although not so wide as those already dealt with, is of great importance. Conceding that the Act is not wholly void, by reason of the extensive meaning given to "industry," the appellants first contend that an association of employés wholly engaged in one State cannot be recognised as a possible disputant in an industrial dispute extending beyond the limits of that State, and therefore it is ultra vires of the Parliament to admit such a association even to registration. Still further, and as a second point, it is urged that it is outside the province of the Parliament to incorporate the associations, and confer upon them such capacities as are given by s 58 of the Act. The first point necessitates a general view of the nature of an industrial dispute. It is evident that the power as to industrial disputes contained in s 51 (XXXV) of the Constitution, like most other powers conferred, was given to the Commonwealth Parliament, because it was recognised that the subject could be thereby better dealt with than if it were left to the differing counsels of the States. But that does not necessarily lead, as the appellants contend, to the conclusion that only such disputes are within the cognisance of the Federal Parliament, as could not be dealt with at all by the States, separately or in conjunction. If pressed to its logical result, it would entirely obliterate the Commonwealth power, because, prior to federation, there was no industrial dispute that could not be dealt with by the States singly if confined to one State, or in conjunction or co-operation if extending beyond one State. But if the argument is that the Commonwealth power is limited to such disputes as no one State could singly deal with as a whole, I agree with it, because that is tantamount to the expression "extending beyond the limits of a State," and the various objections and arguments depend, as it appears to me, on the meaning of that phrase.

It is urged by the appellants, that an industrial dispute extending beyond the limits of any one State involves the condition that the disputants, employers and employed, are engaged in more than one State, and conceding somewhat illogically, as I think that an organisation of employers or employés in two States is equivalent to employment of their members in both States, it is claimed that therefore such disputes can exist only in the following cases: -- (1) Where there are through contracts by sea and land from State to State; (2) where seamen are engaged in interstate navigation; and (3) where disputants on both sides, employers and employés, are organisations whose members are engaged in their occupations in more than one State. This contention appears to me to fundamentally misapprehend the meaning of an industrial dispute. It looks at the question from the contracted view of a tradesman's dispute with a customer. If fifty tradesmen have as many disputes with their respective customers, though it be in relation to identical causes of difference, there are fifty disputes, separate and independent, and a court of law must in the last resort determine each separately. And so it is said that, no matter how many employers are at variance with their respective employés, in relation to industrial conditions of employment, then at all events, in the absence of an organisation, there are so many industrial disputes. It may be, they say, that there is actual concert among the various individual employés to demand, and the employers to deny, the contested conditions -- still, it is urged, that it is not one, but a number of distinct industrial disputes, and -- just as though the employés were respectively suing in a court of law for their wages -- the quarrels are separate and independent, and do not in the aggregate constitute "an industrial dispute."

In my opinion, this is not in any sense the meaning of an industrial dispute. An industrial dispute under the Act, and within the constitutional power, is a dispute in some "industry." It may be between employers and employés, or employés and employés, as for instance, the well-known "demarcation" disputes in the ship-building trade. The connecting link is the industry , and not the particular contract of employment between specific employers and specific employés The Constitution and the Act alike look to a dispute that dislocates or may dislocate a particular industry -- the extent of dislocation being immaterial -- but the governing idea is primarily the preservation of peace in the industry generally, and its uninterrupted progress, and not the settlement of individual quarrels as such. If, say in New South Wales, there is a simultaneous general demand by employés in a particular industry for certain wages, hours and conditions, and a refusal by the employers to grant it, there is "an industrial dispute" in New South Wales; and it would be a complete misunderstanding of terms thoroughly well known and understood at the time the Constitution was framed, in Parliament and out of it, to call this general trouble, affecting the industry as a whole, so many separate industrial disputes. If the men struck, or the employers locked them out, it would be said there was "a strike," or a "lock out," and not so many separate strikes or lock outs. There would then be in that State an industrial dispute -- apart from any organisation on either side. So, if the industry were carried on in Victoria as well as New South Wales, there could be similarly "an industrial dispute," without any organisation. The current acceptation of the term "dispute" in this connection is evidenced by innumerable references -- among which it is sufficient to instance the fifth and final report of the Royal Commission on Labour -- House of Commons Parliamentary Papers , (1894) Vol XXXV., eg , at pp 144 and 145; Webb's History of Trade Unionism , (1894) pp 210, 329, 390; the "Trade Disputes Conciliation and Arbitration Act 1892" (NSW); the "Conciliation Act 1894" (SA); the "Conciliation Act 1896" (England); and the "Industrial Conciliation and Arbitration Act 1900" (WA); the last-mentioned being after the framing of the Constitution, but so close to it as to be good evidence of the pre-existing meaning of the terms employed; see also Murray's Dictionary , Dispute, col. 498, No 2. If, then, the industrial demands were made and refused simultaneously in the two States, can anyone doubt that the antagonism existing between employers and employed, the demands on the one side of the industry in the two States, and the refusal on the other, would constitute what was and is ordinarily known as "a dispute" in that industry, or in other words, "an industrial dispute" extending beyond the limits of one State. Organisation is immaterial. The public in the two States are as much inconvenienced, and persons indirectly dependent upon the uninterrupted course of the industry immediately concerned are as greatly prejudiced, by a strike or lock-out where there is no organisation of employers and employés, as where the most elaborate system of organisation prevails. To introduce by implication into the Constitution a condition that, apart from, perhaps, interstate navigation, and a few comparatively rare and insignificant exceptions, such as a stationholder in two States and employing the same men in both, or a merchant in two States and employing the same commercial travellers in both, there must be organisation of disputants on both sides, would practically reduce the admitted Commonwealth power to a nullity.

Employers or employés, by merely abstaining or discontinuing from interstate organisation, could remain or move clear outside the reach of the power. Their mere passivity would neutralise the manifest intention of the Constitution. Besides, an organisation is not an employé, nor is it a party to an agreement of employment. The contracting parties to such agreement are the individual employers and employés; and though collective bargaining may take place, that is only true in the larger sense -- the same large sense in which a collective dispute takes place. The strict and narrow sense would confine bargain and dispute alike to individuals; the broader extends both. Organisations of employers may agree with organisations of employés that they will pay certain wages to any person employed, and that employés will work a certain number of hours, but that is not the contract of employment. If in breach of that arrangement an employer employs a man on other terms, the employé can claim no more than he has individually agreed to take. And if the employé agrees to work and works longer hours, that is no breach of any contract of employment made by him. The dispute in the industry generally, which is an industrial dispute in the large economic sense, must be carefully distinguished from an individual dispute between a specific single employer and one of his employés The latter may be an industrial dispute, too, but in a narrower sense, and not in the broad national sense which the Constitution intended -- compare s 24 of the New South Wales Act of 1892. The result of these considerations is that, apart from any organisation at all, and assuming the workers and employers were alike unassociated, each of them, though his own occupation were confined to one State, could conceivably be involved in an industrial dispute, extending, or capable of extending, beyond the limits of one State. He might not be one of the parties to the dispute so extending, because the parties might consist of two -- namely, all the employés demanding and all the employers refusing the conditions. But he would be a component portion of one of the parties, and as there is nothing in the Constitution requiring only complete parties to be registered, there is no reason why a Legislature having plenary power over the subject-matter of such industrial disputes cannot permit him to be registered. And if one employé in one State may be registered, an association of ten, or ten thousand, in that State may equally be registered.

There now only remains to be considered the second point of this objection, namely, whether the incorporation of the association and its investiture with the capacities mentioned in s 55 are provisions ultra vires of the Parliament. It is urged that, there being no independent Federal power of creating industrial corporations, the incidental power is the only source of authority. To this I agree. Unless the provisions are incidental to the main power they cannot stand. The right to incorporate these organisations was not strenuously contested at the bar. Reliance was mainly placed by learned Counsel for the appellants on the powers and privileges, as they were called, given to the organisations by the Federal Parliament; ss 9 and 58 were the chief instances advanced. I pass by s 9 with this observation, that if the other objections fail -- if an organisation can be created, incorporated and endowed with powers under s 58 -- the provisions of s 9 are obviously permissible to render the scheme effective.

It is said that it cannot reasonably be regarded as incidental to the main purpose to enact the challenged provisions. But why is it not incidental? "Incidental" is certainly not a narrower term than "necessary;" and the considerations stated by this court in Perth Local Board v Maley , 1 CLR 702, and supported by the authorities there cited, apply with stronger force to the opinion of a national Parliament than to that of a municipal board. Whether a given provision is auxiliary to a main power, or necessary or conducive to its effective exercise, or in other words, incidental, is mainly a question of fact, dependent possibly upon a variety of circumstances -- commercial, industrial, social and political. Parliament is primarily the tribunal to determine this fact, and is so constituted and equipped as to be infinitely more capable than the court to arrive at a proper conclusion. The court has necessarily the ultimate duty and power of protecting the Constitution from excess in this respect as in every other, but unless it can be shown that Parliament has infringed some positive restriction or prohibition of the Constitution, or has enacted as incidental to a main power some provision which no reasonable man could in any conceivable circumstances honestly regard as incidental, no court has, in my opinion, any justification for attempting to review the action of the Legislature, and declaring that to be impossible of attainment which Parliament has in its discretion thought and declared to be desirable for the public welfare.

Had no precedents existed for the course taken by the Federal Legislature with regard to these organisations, I should still have thought that the enactments in ss 9 and 58 were beyond the power of this court to question. But there are precedents which, though unnecessary in point of law, may tend to satisfy any doubts that might otherwise linger. The State Legislatures could, had they so desired, have provided for the settlement of every industrial dispute without the aid of organisations at all. But it would obviously have been impracticable, as well as harassing, even in one State, to deal with every difference between each single employer and employé separately; and therefore organisations were made part of the scheme. Not only were they considered auxiliary, but evidently some of the colonial Legislatures dealing with the subject regarded them as essential to a practical, just and equitable working of the system. The Western Australian Act, by s 7, incorporated them, and by s 8 invested them with powers to purchase or lease land and dispose of it. In this, it followed the provisions of the New Zealand Act of 1894 (No 14), ss 6 and 7. The New South Wales Act of 1892 did not make independent provision for incorporation or formation of organisations, but adopted those registered under the Trade Union or Friendly Societies law, and though not technically incorporated, they have a recognised collective status, and can hold and dispose of property. The South Australian Act did not incorporate industrial unions or associations, but attached to registration certain collective consequences, and while insisting on certain requisites in the rules permitted the rules to provide for any other matters not contrary to law; s 58 also provided that for the enforcement of awards execution could be levied against the property of an organisation, as if it were incorporated, and whether the property were vested in trustees or otherwise held; see also the later New South Wales Act 1901 (No 59), s 7.

These provisions indicate how the various Legislatures in dealing with the subject of industrial conciliation and arbitration have found it most advantageous and desirable, if not practically necessary, to require the collective grouping of labour for the purpose of the Act, and to enable the groups to acquire or possess property, and in some cases this has been carried as far as independently to provide for incorporation. It cannot, therefore, be said that when the Federal Parliament also adopted the expedient of incorporating organisations and empowering them to acquire property for the purposes of the Act, it was introducing anything of a novel character, or enacting more than experience had already shown was a valuable auxiliary or incidental provision to aid in the effective operation of the main purpose. Nor can it be validly urged that the Commonwealth Parliament ought to content itself with accepting such organisations as the States choose to create. Some States might differ from others; some might have no such provision at all, and the effective exercise of Federal powers cannot be left dependent on State action.

The provisions questioned are, therefore, in my opinion, perfectly within the auxiliary power. I would add, that reading s 58 as part of an Act having a definite and limited purpose, and particularly with the concluding words of the sixth paragraph of s 2, I am of opinion that the powers it confers on organisations do not go beyond the purposes of the Act itself. Other questions were discussed during the argument, which, though important, are not necessary to be decided in this case. Consequently I offer no opinion respecting them, except to say that, as at present advised, I am not convinced of the unconstitutionality of any provision in the Act.

In the result, the determination of Higgins, J, was, in my opinion, correct, and this appeal ought to be dismissed.