Industrial law - Vonciliation and Arbitration - registered organization - eligibility tor membership or Municipal Ufficers' Association - meaning or statutory authority or corporation under eligibility rule. Conciliation and Arbitration Act 1904 ss.118A,143 Transport Act 1983 (Vic.) ss.4,17,18,19,20,21,27,67,231,232 R v. Gough; Ex parte The Municipal Officers' Association of Australia (1975) 133 C.L.R. 59 Rv. Holmes; Ex parte Public Service Association of New South Wales (1977) 140 C.L.R. 63 MONTAGUE WALTER BURGESS, FREDA BAJROVIC, MATTHEW SHEALES and STANLEY JAMES 0' TOOLE and THE MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA V. No. 2 of 1984 \uo" Ary A ky RECEIVED Evatt, Northrop and Keely JJ. | - "520 185 - Melbourne San oe 20 December 1985 on " \y" IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. No. 2 of 1984 ) INDUSTRIAL DIVISION ) BETWEEN : MONTAGUE WALTER BURGESS, FREDA BAJROVIC, MATTHEW SHEALES and STANLEY JAMES 0' TOQOLE Applicants and THE MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA Respondent COURT: EVATT, NORTHROP AND KEELY Jd. DATE: 20 DECEMBER 1985 PLACE: MELBOURNE MINUTE OF ORDER THE COURT ORDERS THAT the application be dismissed. (Settlement and entry or Orders is dealt with in 0.36 of the Rules or Court.) {N THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY - No. 2 of 1984 <a INDUSTRIAL DIVISION BETWEEN : MONTAGUE WALTER BURGESS, FREDA BAJROVIC, MATTHEW SHEALES and STANLEY JAMES 0O'TOOLE Applicants and THE MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA Respondent COURT: EVATT, NORTHROP AND KEELY JJ. DATE: 20 DECEMBER 1985 PLACE: MELBOURNE REASONS FOR JUDGMENT EVATT & NORTHROP JJ. The Road Traffic Authority ("the RTA") is a_ body corporate constituted by the Transport Act 1983 (Vic). The issue raised in these proceedings 1s whether the RTA is a statutory authority or corporation under the eligibility rule ot the Municipal Officers' Association or Australia ("the MOA"), an organization of employees under the Conciliation and Arbitration Act 1904 (" the C & A Act"). The Rules of the MOA that deal with the industry in respect of which it 1s registered and with the conditions of eligibility or its members are as follows: ~ "3 - INDUSTRY The Association 1s formed in connection with the Local Government Municipal and Statutory Corporations Industry." "S - CONSTITUTION The Association shall consist of an unlimited number or 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 tollowing 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 nat together with such other persons as have been appointed Officers of the Association and admitted as members thereof." The kRTA was constituted on 1 July 1983. Thereaiter, the MOA admitted into membership a large number of persons employed by the RTA in callings or avocations enumerated in rule 5 of the MOA rules. Those persons had not been members of the MOA before they commenced their employment with the RTA. Thereafter, the applicants commenced these proceedings under s.143 of the C & A Act seeking an order directing the cancellation or the registration or the MOA on the grounds that:- Ll. rule 5, being a rule providing for a matter in accordance with the prescribed conditions, had not been observed in that persons, not being eligible to be admitted as members of the MOA, had been admitted as members; see paragraph 143(1)(c), and 2. the MOA had engaged in conduct not authorized by its rules in that 2t had admitted as members persons not entitled to be admitted as members under rule 5; see paragraph 143(1)(k). The proceedings had to be heard and determined in the Industrial Division of the Federal Court of Australia by a Full Court; see sub-section 118A(4B) of the C & A Act. For the purposes of these proceedings, 1t was not disputed that the applicants were entitled to bring these proceedings as being persons interested under sub-section 143(1) of the C & A Act. The proceedings were prepared for trial on the basis that the only issue was whether the RTA was a statutory authority or corporation under rule 5 of the Rules of the MOA. When the hearing commenced, counsel for the applicants sought leave to amend the application to rely upon the ground specified in paragraph 143(1)(b) of the C&A Act, namely, that the Rules of the MOA failed to comply with or were contrary to law. For reasons then given, the Court refused the motion. Thus the application 1s limited to and 1s based upon the two grounds specified in paragraphs 143(1)(c) and (k) of the C & A Act. These two grounds raise the one issue being that set out at the beginning of these reasons. fn 1983, the Victorian Government, by the Transport Act, re-formed the structures with respect to transport within Victoria. In substance, the Transport Act created an umbrella organization to be known as the Ministry of Transport and constituted a number of corporations to operate under the cover of the Ministry of Transport. The Ministry of Transport is created by s.3 of the Transport Act and its statutory object 1s to improve the efficiency and effectiveness of transport facilities and networks to meet the needs of the community; see sub-section 4(1). The functions or the Ministry of Transport are set out in sub-section 4(2). The Transport Act establishes four Authorities, namely, the State Transport Authority, the Metropolitan Transit Authority, the Road Construction Authority and the RTA; see Division 3 of Part II of the Transport Act. Each of those Authorities 1s constituted a body corporate; see 5.27. Under sections 231 and 232, on 1 July 1983:- 1. The State Transport Authority became the successor 1n law of the Victorian Railways Board and the Railway Construction and Property Board and the last two mentioned bodies were abolished; 2, The Metropolitan Transit Authority became the successor in law of the Metropolitan Tramways Board and the Melbourne Underground Rail Loop Authority and the last two mentioned bodies were abolished; 3. The Road Construction Authority became the successor in law of the Country Roads Board and the last mentioned body was abolished; 4. The RTA became the successor in law or the Transport Regulation Board and the Road Safety and Traffic Authority and the last two mentioned bodies were abolished. Under s.21 of the Transport Act, the RTA 1s empowered to employ such persons as are necessary for carrying out its objects, functions, powers and duties on the terms and conditions determined by it and approved by the Minister. It should be noted in passing that Part V of the Transport Act constitutes the Victorian Transport Service consisting of persons, including persons employed by the RTA, whom the Minister of Transport determines shall form part of that Service, Not all persons employed by the RTA are determined to be members of the Victorian Transport Service and for the purposes of these proceedings, membership of that Service is immaterial. The material fact 18 that under s.21, the RTA is empowered to employ persons and has employed persons, including those who subsequently were admitted as members of the MOA. The RTA is established by 5.19 of the Transport Act. That section provides as follows:- "19. (1) There shall be a Road Traffic Authority. (2) The members of the Road Traffic Authority shall be - (a) the Director-General of Transport; and (b) nine other members appointed by the Governor in Council of whom there shall be - (i) the Managing Director; (ii) an officer of the Authority nominated by the Managing Director; (iii) one person elected by the officers of the Authority; (iv) a person having knowledge of and experience in the use of passenger cars; (v) amember or the Victoria Police Force; (vi) a person having knowledge of and experience in the operation of road transport vehicles; (v1i) a councillor of a municipality; (vi1ll)a person having knowledge of and experience in employment in the transport industry; and (1x) one other person. (3) Part 1I. of Schedule 1 shall apply to the Road Traffic Authority." Part II of Schedule 1 prescribes matters of a procedural nature which, for present purposes, need not be considered. Section 20 provides for the objects and functions of the RTA. The whole of that section must be set out:- "20. (1) The functions of the Road Traffic Authority are: (a) to provide registration and licensing procedures and systems 1n connexion with transport; (b) to develop and implement road _ safety strategies and develop promote and administer road safety education and training programs; (c) to develop and implement trartfic management strategies and practices; (d) to specify road accident prevention practices and to promote the adoption of such practices within the community; (e) to develop and supervise regulations applicable to road traffic; (f£) to purchase, design, construct, erect, install, maintain and operate traffic signals; (¢) to investigate and to promote and undertake research into any matter related to the performance of its functions, powers and duties; and (h) to compete for work on the open market. (2) In addition to i1ts powers, duties and functions under this Act, the Authority shall have such powers, duties and functions as are conferred on the Authority by the Motor Car Act 1958, the Motor Boating Act 1961, the Chattel Securities Act 1981 and any other Act. (3) In the exercise of these functions the Road Traffic Authority shall have regard to the achievement of the following objects: (a) (b) (c) (d) (e) (f) (h) (1) (Fj) (k) to make use or available transport resources in ways which are most beneficial to the community; to operate efficiently and effectively within Government policy and other parameters determined by the Victorian Transport Directorate; to achieve the efficient and safe movement of road traffic; to improve the community's awareness of road safety strategies and practices; to improve and simplify registration and licensing procedures and systems; to improve productivity; to establish and maintain a satisfying work environment which ensures the broadest range of opportunities for career development and job enrichment; to achieve an efficient and dynamic organisation by implementing appropriate technological and other changes through a process of consultation beginning at the comtemplative stage; to maintain an effective decentralised organisation and to delegate decision making to appropriate levels in the Authority; to maintain harmonious relations between management staff and employee organisations through processes of effective consultation and participation in decision making; to develop and train all personnel to carry out their duties and responsibilities effectively and efficiently to interact with the public in a helpful and courteous manner and to enhance their workskills; (1) to maintain a high level of motivation, performance, teamwork and safe working practices and develop a sense of commitment to the organisation with employment conditions in keeping with community standards; (m) to facilitate accountability at all levels within the Authority by maintaining suitable information and reporting systems; and (n) to provide mechanisms and full information to enable efrective and timely participation by the community in decision making about facilities and services." Counsel for the applicants relied upon opinions expressed in Rv. Gough; Ex parte The Municipal Officers' Association of Australia (1975) 133 C.L.R. 59 ("the Universities Case"). In that case, the High Court had to consider whether Universities within Australia, being constituted corporations by State legislation, were statutory corporations under rule 5 of the Rules of the MOA. By a majority, Gibbs, Stephen, Mason and Jacobs JJ., McTiernan dissenting, the High Court held that they were not. In a joint judgment, the majority said at p.69:- "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 other words, earlier and later, with which they are associated, and which show that they were antended to have some flavour of local government. This 1s not to ignore the words 'or by' on which the Association so strongly relies; those words introduce a new class, but itis a ' - 10 - class not unconnected with that earlier described. Moreover, the context provided by r.3 provides further assistance in resolving the ambiguity in r.5. ... 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 re.3 and 5 it 1s 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 p.70 their Honours said:- "For the purposes of determining the present matters 1t 18 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 1t 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." Counsel for the applicants, quite correctly, did not dispute that the RTA was a corporation exercising functions of a public nature but contended the RTA did not have "some flavour of local government" and denied that the functions of a public nature which i1t did exercise were analogous to those exercised by local authorities. In support of those contentions, they submitted that the RTA exercised functions of a public nature which were central governmental in nature. Before considering these contentions in detail, some general observations should be made. From the passages quoted from the Universities Case, 1t 185 apparent that the class of employers coming within the words "Statutory - ll - Authorities, Corporations, Trusts, Boards or Commissions" 15 a new class or employers separate and distinct from employers being "Locai Authorities, Cities, Municipalities, Towns, Boroughs, or Shires" but nevertheless, having some connection with the latter class of employers. In the Universities Case, the High Court did not attempt to denote the limits of that connection. A Government is free to choose how 1t will perform its functions of a public nature. It may adopt a system where functions of a public nature are performed by Departments of State. Under that system, persons normally are employed 1n a service, be it a State Public Service, a Teaching Service or some other service where, inlaw, the employer 1s the Crown in right of the State. Under that system, no statutory corporation is created to perform those functions and to become the employer of persons engaged to enable it to perform those functions. Alternatively, a Government may adopt a system whereby i1t constitutes corporations to perform, on its behalf, functions of a public nature. Under that system, the corporations normally become the employers of persons engaged by them to enable them to perform those functions. The functions to be performed by a corporation may be limited to specified parts of the State, but that does not mean that they are of the nature of local government functions, or they may extend to the whole of the State. Thus the functions of the Road Construction - 12 - Authority, as set out in sub-section 18(1) of the Transport Act, include the following functions:- "(a) to maintain, upgrade, vary and extend the State's declared road network; (b) in conjunction with municipalities, to assist in the maintenance, upgrading and construction of other roads; (c) subject to agreement with the Road Traffic Authority to purchase, design, construct, erect, install, maintain and operate traffic signals and other traffic facilities for the purposes of traffic management and control; (d) to determine load limits and advisory speed limits for any road, bridge or culvert and to determine maximum speed limits for travel on roads under construction or repair or over bridges or culverts; (e) to provide and maintain roadside reserves adjacent to any road for the use or enjoyment of persons using any such road; (f) to establish guidelines and requirements for the issue of vehicle mass and dimension permits; " It will be recalled that the Road Construction Authority is the successor in law to the Country Roads Board. For many years, the MOA had enrolled as members persons employed by the Country Roads Board even though that Board had performed functions throughout the whole of the State of Victoria. It is difficult to see any argument to support a conclusion that the Road Construction Authority is not a statutory authority or corporation under rule 5 of the Rules of the MOA. It is interesting to note further that, as in the RTA, one of the members of the Road Construction Authority must be a councillor of a municipality; see sub-paragraph 17(2)(b)(vii) of the Transport Act, although - 13 - the presence or absence of that requirement of itself is not decisive of the question to be determined in this case. It must be remembered also that within the State of Victoria, all Local Authorities, Cities, Municipalities, Towns, Boroughs and Shires are corporations created by or pursuant to Acts of Parliament. They have wide powers covering many different matters, but normally the area within which they may exercise those powers is limited. In addition to those local government bodies, the Government has created many other Statutory Authorities, Corporations, Trusts, Boards or Commissions, some of which perform functions of a public nature within limited areas while others perform functions of a public nature throughout wide areas, including in many cases, the whole of Victoria. In this context, it 1s difficult to see what assistance can be derived from attempting to apply atest based upon central governmental functions since un reality, all those functions derive eventually from the central Government of the States. The functions of the RTA have been listed. There was evidence before the Court that the RTA is performing all those functions except the function "(h) to compete for work on the open market". In addition, the evidence shows that many powers, duties and functions have been conferred upon the RTA by the Acts referred to in sub-section 20(2) of the Transport Act. Many of those powers, duties and functions are directed to the collection of large sums of money by the RTA to be paid into consolidated revenue or to be paid to the - 14 - State Insurance Office with respect to third party premiums on motor cars. However, 1f a statutory authority or corporation 1s connected with local government, that connection 15 not broken, necessarily, aif functions not connected with local government are conferred on that statutory authority or corporation also. The MOA sought to show a connection between functions conferred upon the RTA and functions performed by local authorities. To this end, the MOA called as a witness, John Angas Halligan, an expert in local government within Australia. Dr. Halligan gave evidence, which 1s accepted, that since as early as 1847 local authorities throughout Australia have had conferred upon them functions and powers Similar to the functions conferred upon the RTA pursuant to sub-section 20(1) of the Transport Act. Those functions and powers were conferred by State Acts. Detailed references to relevant State legislation 1s set out in the affidavit sworn by Dr. Halligan on 3 July 1985. It is not necessary to refer to those statutory provisions in detail. It is sufficient to say that the functions and powers included the functions and powers to make by-laws for the licensing of carriages, buses and public vehicles, the licensing of vehicles generally and the parking of vehicles; the powers and functions to develop and implement road safety strategies and to develop and promote and administer road safety education and training programs; the functions and powers to develop and implement traffic management, strategies and practices; the functions - 15 - and powers to be aunvolved in the specification of road accident prevention practices and the promotion of the adoption of those practices; the functions and powers to develop and supervise regulations relating to road traffic, including parking; the functions and powers to purchase, design, construct, erect, install and operate traffic Signals; and the functions and powers to investigate, promote and undertake research matters relating to the performance of road traffic functions. In addition, some local authorities have had conferred on them the functions and powers to compete for work on the open market, for instance in the conduct of bus, tram or ferry services, the supply of bitumenised gravel, the provision of off~street parking facilities and a power to operate trading activities such as markets, quarries and abattoirs. Many local government bodies have exercised some or all of those functions and powers. Another expert in the area of local government in Australia, Margaret Fanny Bowman, was called as a witness on behalf of the applicants. She had read the affidavit of Dr. Halligan and agreed that the functions and powers described and identified in his affidavit and summarised above, are functions and powers which have been granted to local government bodies throughout Australia. She made the point, however, that most of those functions and powers were permissive in nature and, as distinct from the functions of the RTA, there was no obligation upon local government bodies to carry out those functions or to exercise those powers. - 16 - Further, she stressed the fact that unlike the RTA, local government bodies were not required to prepare and submit to the Minister an audited statement of accounts at the end of each financial year and stating the extent to which quantitative targets which had been determined by the Minister, had been attained in the relevant period. In determining the issues raised by these proceedings, the matters referred to by Dr. Bowman do not detract from the weight of the evidence given by Dr. Halligan. The issue is whether the RTA has the power and is "exercising functions of a public nature in some way analogous to those exercised by local authorities" or 15 "exercising public functions analogous to those of local government bodies". What is to be considered are the functions and powers conferred upon and exercised by local government bodies and those conferred upon and exercised by the RTA. On the evidence of Dr. Halligan, there is a_ strong case made out to support the view that the RTA is a statutory authority or corporation under r.5 of the Rules of the MOA. That view is strengthened by a consideration of the Victorian legislation relating to the development of the Transport Regulation Board and the Road Safety and Traffic Authority which were the two bodies which merged into the RTA. During the course of submissions, counsel for the applicants handed to the Court a document headed "Statutory and Administrative Pre-History of the Road Traffic Authority". This document contained references to and ' -17 - summaries of provisions of earlier Acts relating to the regulation of traffic within Victoria, the licensing of vehicles and of drivers within Victoria, the co-ordination of transport services within Victoria, the conduct of enquiries and research into and reports upon road safety measures, accident prevention and traffic control matters generally. The document contained extracts from second reading speeches given when the relevant legislation was being introduced. A consideration of that document shows that historically there has been a close relationship between activities of local government bodies and the functions and powers of the forebears of the RTA. An interesting illustration of this close connection 1s seen from the following extract from the second reading speech of the Minister when introducing the Road Traffic Bill 1935, which became the Road Traffic Act 1935:- "The object of the Bill is to provide a uniform traffic code of regulations for, practically speaking, the metropolitan area ... All matters of traffic regulation cannot be dealt with in the Bill, because in the different districts and municipalities there are different circumstances .»- especially trams... It is most puzzling to many people, and particularly strangers to Melbourne, to find that, in some suburbs, a certain course of action 1s legal, while in other suburbs it 1s an offence ... The Bill provides that the general power of regulating traffic shall still be left to the municipalities and will run parallel with the provisions of this legislation, but in order to reach uniformity the Governor in Council is empowered to pass regulations dealing with matters about which the municipalities have agreed to the adoption of a uniform code. - Hansard, Vol. 198, p.4899." - 18 - The view stated that a strong case had been made out to support the view that the RTA is a statutory authority or corporation under r.5 of the Rules of the MOA, is strengthened further by the fact that Parliament has required that a councillor of a municipality be a member of the RTA. On this material, it is clear that the applicant has failed to show that the RTA is not a statutory authority or corporation under r.5 of the Rules of the MOA and has failed to establish either of the grounds alleged in its application. In support of the application, counsel for the applicants relied upon further evidence that the functions of a public nature which were conferred upon the RTA were governmental in nature and thus could not be analogous to those exercised by local authorities. It is necessary to \ make a brief reference to the substance of that evidence before considering the nature of the submission put. Counsel placed much emphasis on the financial responsibilities and administrative structures of the RTA. They referred to 5.67 of the Transport Act which requires the RTA to submit to the Minister within three months of each financial year a report of its operations during that financial year together with an audited statement of accounts, each of which are then laid before the Legislative Council and the Legislative Assembly. A copy of the report for the financial year ended 30 June 1984 was tendered in - 19 - evidence. Counsel referred also to other Acts which confer duties and powers on the RTA. In this respect, the report summarised the position as follows:- "Motor Car Act, 1958 The Motor Car Act 1958 vests the Authority with responsibility for the registration of motor vehicles and the testing and licencing of drivers. It also empowers the Authority to regulate the standards of vehicles and their equipment. Under the Act the Authority also collects third party insurance premiums and stamp duty on new registrations and transfers. Chattel Securities Act 1981 The Chattel Securities Act 1981 requires the Authority to maintain a register of security interests in motor vehicles and trailers and to issue certificates as to whether such interests are registered in respect of a particular vehicle. Motor Boating Act 1961 The Motor Boating Act 1961 requires the Authority to maintain a register of motor boats, certain motorised sailing vessels and air cushion vehicles and to collect the registration fees payable by owners of these craft. Motor Car Regulations 1966 The Motor Car Regulations 1966 complement' the powers conterred by the Motor Car Act 1958. Transport Consolidated Regulations 1977 and Road Traffic Regulations 1973 These regulations were kept in force by the Transport Act until 1 July 1984 to enable traffic management and transport regulation functions toa continue pending the drafting of new regulations made pursuant to the Transport Act. Transport (Tow Truck) Regulations 1983 These regulations provide for the regulation of tow trucks and the drivers of those vehicles, and in particular, deal with the regulation of accident towing within controlled areas." - 20 - Counsel relied also on evidence which showed that during the financial year 1983-84, the RTA collected moneys of the order of $650,000,000. Just over 50% of that sum was collected on behalf of other State agencies, principally the State Insurance Office with respect to third party insurance premiums. Just under 50% of that sum was paid into consolidated revenue and represented, mainly, licence fees collected by the RTA. The RTA is' funded by annual appropriations from the State budget. Counsel for the applicants referred to these financial requirements and administrative structures and sought support from opinions expressed in R v. Holmes; Ex parte Public Service Association of New South Wales (1977) 140 C.L.R. 63. That was acase in which the essential question raised was whether an industrial dispute under the C& A Act existed so as to vest jurisdiction in the Conciliation and Arbitration Commission to make an award determining that dispute. For present purposes, the two relevant issues were, first, whether clerical and administrative employees of the Commissioner for Motor Transport of the State of New South Wales ("the Commissioner") were eligible to be members of the Australasian Transport Officers' Federation ("the Federation"), an organization of employees under the C& A Act and, second, whether, if so, the Commissioner, which was a statutory corporation, was, in relation to those employees, an employer 1n an industry so as to be in dispute in the relevant sense with the Federation. By a majority, Gibbs, - 21 - Stephen, Jacobs and Murphy JJ., Barwick Cd. dissenting, the Court was of opinion that the employees were entitled to be members of the Federation. In accordance with the then accepted principles, Barwick CJ., Gibbs and Stephen JJ., Jacobs and Murphy JJ. dissenting, were of opinion that the work done by the employees was not of an industrial character and that the Commissioner was not engaged in industry. It followed that the Court held that no industrial dispute existed to confer jurisdiction on the Conciliation and Arbitration Commission. Gibbs J. gave the main judgment expressing the opinion of the majority. For the purposes of the present case, 1t could be thought that the opinion that the employees were eligible to become members of the Federation would have been relevant to support the submissions put on behalf of the MOA, but counsel for the applicants appeared to ignore that aspect of the decision. They concentrated on that part of the reasons for judgment of Gibbs J. which was directed to the question of whether the Commissioner was engaged in industry. They argued that having regard to the administrative and financial structures and functions of the RTA, although it was a corporate body exercising functions of a public nature, 1t was not an employer coming within the industry rule, r.3, of the Rules of the MOA and thus' could not be a statutory authority or corporation analogous to local authorities. - 22 - In the circumstances of this case, those submissions can have no relevance. This case is not concerned to decide whether an industrial dispute can or cannot be created between the MOA and the RTA with respect to persons employed by the RTA and coming within the callings and avocations set out in r.5 of the Rules of the MOA. Submissions of this kind may have been relevant i1f the amendments to the application sought by the applicants had been granted. On the issues before the Court, no question arises as to whether the RTA is engaged in industry and no question arises as to the meaning of r.3 of the Rules of the MOA or whether the RTA comes within that rule. The opinions expressed in Holmes' Case do not assist in deciding whether the RTA is a statutory authority or corporation under r.5 of the Rules of the MOA. In the present case, the crucial question relates to the connection between the functions of the RTA as contained in the Transport Act andin particular, 5.20 of that Act and the functions and powers of local authorities. There is evidence stating what are the functions and powers of local authorities. On the material before the Court, there is a very real and direct connection between the functions of the RTA and the functions and powers of local authorities. The functions of the RTA are analogous to the ~ 23 - functions of local authorities. The financial and administrative structures which are also imposed upon the RTA do not negate the existence of that analogy. The application should be dismissed. Stee. Tat say that this and the-hwewkey- tes (@\ jeveli page: are a tiue copy of the Reavon- dos Fudzre 4 Lecein of the slenourable Mr. Justice Zvekk auch the be, "eure we HK Dothee Meee de wets Astociate Pred: BEM O[8S (ene Sen le | SSS oe ee J i i ay IN THE FEDERAL COURT OF AUSTRALIA } ) VICTORIA DISTRICT REGISTRY ) V. No. 2 of 1984 ) ) INDUSTRIAL DIVISION BETWEEN: MONTAGUE WALTER BURGESS, FREDA BAJROVIC, MATTHEW SHEALES and STANLEY JAMES O'TOOLE Applicants AND: THE MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA Respondent CORAM: EVATT, NORTHROP AND KEELY Jd. DATE: 20 DECEMBER, 1985 REASONS FOR JUDGMENT KEELY J.: This is an application for an order directing the cancellation of the registration of the Municipal Officers' Association of Australia (the association). I have had the advantage of reading the reasons for judgment prepared by Evatt and Northrop JJ. They set out the relevant rules of the association, the relevant statutory provisions and refer in some detail to the evidence as to the functions of local governing authorities in Australia since the middle of the 19th century - matters which need not be repeated in these reasons. I agree with their conclusion that the application should be dismissed. A statement from the judgment of Rich J. in Melbourne and Metropolitan Tramways Board v Municipal Officers Association of Australia (1944) 68 CLR 628 at 637 was quoted with approval in R v Gough; Ex parte The Municipal Officers' Association of Australia (1975) 133 CLR 59 by Gibbs, Stephen, Mason and Jacobs JJ., who said (at page 70) that the words "Statutory corporations" in -.5 "refer only to corporations of a public character exercising public functions analogous to those of local government bodies ...". Their Honours (at 69) also said that the context showed that the words "were antended to have some flavour of local government". Those statements from the reasons for judgment were plainly in the forefront of the mind of the person drafting the present application. The particulars of the grounds relied upon by the applicants, after referring to the functions of the Road Traffic Authority, stated:- "None of the said functions ... is a function analogous to those of local government bodies and Cthey] do not have a flavour of local government so as to bring employees of the RTA [Road Traffic Authority] in virtue of that employment within the description of industry and conditions of eligibility rules of the respondent" The respondent association (understandably) responded to that contention by stating, in its "contentions of fact and law", that:- "all of the functions of the R.T.A. CRoad Traffic Authority] contained in 5.20(1) and §.20(2) of the Act are functions that have also been granted to Local Government bodies, are also granted to Local Government bodies, are analogous to those of Local Government bodies or have a flavour of Local Government." That contention was supported by an affidavit by Dr Halligan, a Research Fellow in the Department of Political Science in the University of Melbourne, who had been asked by the respondent asscciation to express an opinion on that subject. After setting out a great deal of information, Dr Halligan expressed his opinion:- ».. that the functions, powers or duties specified in S.20(1) and (2) of the Transport Act 1983 are functions, powers and duties which ... have a flavour of Local Government, or are public functions analogous to those of Local Government bodies." By way of response to Dr Halligan's affidavit, the applicants filed an affidavit by Dr Bowman, a Senior Associate in the Department of Political Science, University of Melbourne. Having been asked by the applicants to express her opinion on substantially the same subject, she did so and said that she:- ».. Would not describe the RTA as a Local Government Authority or Statutory Corporation performing the functions of Local Government or performing functions identical with or analogous to the functions of Local Government or having any flavour of Local Government" 4. The affidavit evidence as to the functions in fact performed by Local Government bodies and by the Road Traffic Authority is admissible and was of assistance. As each party was relying upon evidence of an opinion, no objection was taken to the admissibility in evidence of the opinion tendered in evidence by the other party. However, the "opinions" of the two witnesses were not, in my opinion, admissible as evidence directed towards establishing that the functions of the Road Traffic Authority are "analogous to the functions of Local Government" or have "any flavour of local government". Apart from other objections, the expression of an opinion using those words obviously raised a question as to what each witness meant by the words "analogous to" and the words "any flavour of". In the present proceedings that question is more difficult to answer because those words have been taken from the joint reasons for judgment of four Justices of the Full High Court in R v Gough, (supra), who were expressing their opinions as to why the words used in the association's conditions of eligibility and description of industry did not permit it to enrol as members the academic staff of universities. It may be added that their Honours expressly stated that it is "undesirable to attempt to define the full scope of the words of r.5". The issue before this court 18s whether the 5. applicants have shown that the respondent association has been enrolling, as members of the association, employees of the Road Traffic Authority who were not eligible to he members. That question depends upon the words used in Rule 5, construed in the light of the meaning given to them in the reasons for judgment of the Full High Court in Rv Gough. However, that judgment does not result in their Honours' words being inserted into the registered conditions of eligibility of the association. The court has to decide whether the applicants have shown that the Road Traffic Authority is not a statutory authority or corporation within the meaning of Rule 5 of the association. The question for decision is mot whether the Road Traffic Authority is "exercising public functions analogous to those of tlocal government bodies" or whether it, in Dr Bowman's words, "has no flavour of local government". In my opinion, evidence as to those matters is not admissible and I have not had regard to it in deciding this matter. On the evidence as to the functions of the Road Traffic Authority and the evidence, particularly that of Dr Halligan, as to the functions of local governing bodies in Australia over many years, in my opinion the Road Traffic Authority 1s a statutory authority or corporation within the meaning of those words contained in Rule 5 of the rules of the association. In so deciding I reject the submission by the applicants that, on the evidence, the Road Traffic Authority is largely engaged in "bare administrative services" performed in the service of the State of Victoria. A consideration of the history of the Victorian legislation relating to the development of the Transport Regulation Board and the Road Safety and Traffic Authority gives support to that conclusion. The document headed "Statutory and Administrative Pre-history of the Road Traffic Authority", which was handed to the court by the applicants' counsel, shows the relationship between some of the functions and powers of local government bodies, on the one hand, and those of the authorities previously performing the functions now performed by the Road Traffic Authority on the other. Among other things, that document quoted a passage from the second reading speech by the Minister (Mr Macfarlan), on the Bill which became the Road Traffic Act 1935. He said:- "The Bill provides that the general power of regulating traffic shall still be left to the municipalities and will run parallel with the provisions of this legislation, but in order to reach uniformity the Governor in Council is empowered to pass regulations dealing with matters about which the municipalities have agreed to the adoption of a uniform code" I should perhaps add that I do not attach any significance to the fact that the Victorian Parliament has required that one of the members of the Road Traffic Authority "shall be ... a councillor of a municipality" (5.19(2)(val1)). In the light of my opinion that the Road Traffic 7. Authority is a statutory authority or corporation within the meaning of those words in Rule 5 of the association's rules, it has not been shown that the association has enrolled as members persons who were not eligible to be members of the association. Neither of the two grounds relied upon in the application having been made out, the application should he dismissed.