R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers, Australia [1959] HCA 47

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor and Windeyer JJ. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers, Australia [1959] HCA 47

ORDER Orders nisi for prohibition discharged. Order nisi for mandamus made absolute directed to the respondents who are members of the Commonwealth Conciliation and Arbitration Commission commanding them or such of them as continue pursuant to s. 34 of the Conciliation and Arbitration Act 1904-1959 to form the commission constituted for the hearing and determination of the proceedings designated Dispute C. No. 630 of 1957 and Dispute C. No. 631 of 1957 to proceed according to law with the hearing and determination thereof. Order that the costs of the abovenamed Association of Professional Engineers, Australia, of the order nisi for mandamus be paid by the respondents the State of New South Wales the Water Conservation and Irrigation Commission, the Metropolitan Water Sewerage and Drainage Board and the Hunter District Water Board and that the costs of the order nisi for prohibition in which the State of New South Wales and others were prosecutors be paid by the said prosecutors and that the costs of the order nisi for prohibition in which the Council of the City of Sydney is prosecutor be paid by the said prosecutor.

Cur. adv. vult.

Sept. 9 Dixon C.J.

The Association of Professional Engineers, Australia, is an organization of employees registered under Pt VIII of the Conciliation and Arbitration Act 1904-1958 Cth. To be a member it is necessary to have a professional qualification in engineering. It appears that in October 1956 the Federal Council of the body resolved upon a log of claims to be served upon employers with respect to the salaries to be paid for professional engineering work. The document adopted is that with which this Court dealt in Reg. v. The Association of Professional Engineers of Australia; Ex parte Victoria [1] The judgment of the Court contains a full description of the instrument, a discussion of its effect and an account of the classification of professional engineers upon which it appears to be based. It is unnecessary to repeat what is there said. It is enough to say that the log concerns rates of salary and that two minimum rates are specified. For a "qualified engineer" a minimum of £1,650 per annum: for a "chartered engineer" a minimum of £2,200 per annum. These are defined terms; they depend on the attainments and experience of the engineer. The actual rates payable in a particular case are left to the agreement of the parties but there is a demand that the professional engineer should be at liberty to invoke the Association to represent him in the negotiation and of course the rate agreed may not go below the appropriate minimum. The work in respect of which the demands are made is described simply as professional engineering duties but these words are defined to mean "duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) a graduate of The Institution of Engineers, Australia". There is a long schedule of the recognized qualifications. They are described in the judgment of the Court to which reference has already been made and nothing more need be said about them now. What is important for present purposes is that there is nothing to indicate the place which the performance of these duties may have in industry or to distinguish the kind of employment in which the professional skill of the engineer may be called for or applied. All that is left to experience and general knowledge. The specific application of the log of demands was to be shown only by the choice of the employers or potential employers upon whom the log was served. In fact the document was served upon a large number of bodies and persons in whose service professional engineering duties in the defined sense are performed. These bodies included State Governments, agencies of State Governments, and some municipal bodies. The failure of parties served to reply to or to agree in or comply with the demands, as the case might be, was treated by the Association as evidence of an industrial dispute. For some reason which cannot be said to be self-explanatory the Association adopted the view that a number of divisible industrial disputes arose out of this process of serving the log of demands and obtaining no compliance therewith within a reasonable time. Accordingly, in purported pursuance of s. 28 (2) the officers of the Association gave notifications of the existence of a number of industrial disputes. In the present proceedings we are concerned with two of these alleged industrial disputes. They were the subject of notifications to the Industrial Registrar made on 8th July 1957 and he numbered the disputes C630 and C631 of 1957. In these two matters many respondents were named having a governmental connexion. In particular they included the Public Service Board of New South Wales, the Public Works Department of that State, the Water Conservation and Irrigation Commission, the Maritime Services Board, the Metropolitan Water Sewerage and Drainage Board, the Department of Main Roads, the Hunter District Water Board, the Electricity Commission, the Housing Commission, the Forestry Commission, the State Coal Mines, all of New South Wales. The Joint Coal Board was included and in addition to other municipal bodies, the Sydney City Council. There were, it is almost superfluous to add, parties in other States served with the log and listed as parties to these disputes. Findings were made under reg. 17 that industrial disputes existed in the two matters between the Association and the employer parties listed in the respective affidavits supporting the notifications. They together with other "disputes" arising from the log came before Mr. Commissioner Portus, but before he could deal with the merits the order nisi for a writ of prohibition was granted which forms the subject of the report already cited [1] . That order nisi was discharged on 19th December 1957. The matters again came before Mr. Commissioner Portus and on that occasion an application was made by respondents that the disputes should be heard by the Commission constituted by not less than three members including a Presidential member. The application was made under s. 34, on the ground of the great importance of the matters in the public interest. Eventually a direction was obtained to that effect and on 19th August 1958 the two alleged disputes together with seven others came on to be heard before the Commission composed of five members including the learned President. An objection was then raised and argued that the Commission had no jurisdiction to bind by award, in purported settlement of the alleged disputes, the State of New South Wales or any of the departments or agencies of the State already enumerated. The ground was that the employment of professional engineers by the State or the departments or agencies of government mentioned could not in that character become the subject of an industrial dispute raised by the service of the log of demands and non-compliance therewith. After a very full argument a majority of the Commission ruled that with certain exceptions the employment of professional engineers by the departments or bodies concerned might or did form the subject of an industrial dispute the settlement of which would fall within the authority of the Commission. The exceptions are these. In the first place the majority of the Commission considered that professional engineering duties performed within the Public Works Department of the State of New South Wales would not be of a description falling within a power to settle industrial disputes. But to that proposition there was a necessary qualification. For it happens that the State Dockyard and the State Brickworks are both carried on under the Department of Public Works and these undertakings seemed naturally to lie within the conception of industrial enterprises so that the employment of any professional engineer therein to perform professional engineering duties in the defined sense might well be considered as subject to the authority of the Commission. In the second place the majority of the Commission were of opinion that the employment of a professional engineer to perform such duties in the Water Conservation Commission could not be subject to the authority of the Conciliation and Arbitration Commission to settle an industrial dispute. Here again their Honours thought there must be a qualification; for they were not prepared to treat the supply and sale of water as outside the scope of industrial activity. That seemed commercial. But without qualification they considered that it was impossible that employment to perform professional engineering duties for the Metropolitan Water Sewerage and Drainage Board, for the Hunter District Water Board and for the Department of Main Roads should form the subject of an industrial dispute the settlement of which would lie within the authority of the Commission.