Industry, industrial disputes and the constitution

This thesis is concerned with s.51(xxxv) of the Constitution which gives the Commonwealth Parliament the power to make laws with respect to the prevention and settlement of industrial disputes by means of conciliation and arbitration. The constitutional power is examined from the point of view of which groups and types of employees are capable of taking part in "industrial disputes" as comprehended therein. When the Commonwealth Parliament first passed legislation under s.51(xxxv) it set up a single Federal tribunal to deal with labour disputes. From the employees' point of view the right to an audience before that tribunal was to be gained by the registration of representative organisations under the Act and the question arose as to the basis on which parties to such labour disputes were to be permitted to obtain registration. Because of the limitations on the Commonwealth jurisdiction which were envisaged as a result of the presence of the adjective "industrial" in para. (xxxv) it was not surprising that the Commonwealth Parliament decided that the basis of such registration would he participation in industry and, as a result, the scope given to expressions such as "industry" and "industrial employment" has always been of significance in so far as understanding of the jurisdiction of the tribunal set up under the Commonwealth Conciliation and Arbitration Act is concerned. The early part of this thesis (contained in Chapters II - IV) is concerned with a historical background to Australian industrial legislation and with the reaction of the Commonwealth Parliament and the High Court to pressures caused by employees attempting to bring themselves within the provisions of the Act by combining themselves into groups so that they might be regarded as collectively engaged in "industry" or in "industries" as defined at various points of time in the Act. The substance of this examination is contained in Chapter IV which traces the relevant amendments to the definitions and registration provisions after 1904. The second part of the thesis (contained in Chapters V - VII) is not concerned with the Conciliation and Arbitration Act or with the question of industrial groupings. It is concerned with attempts made to withhold the application of the Federal industrial power from certain types of persons by reference to the nature of the employment of those persons. It has been said that some employment is not industrial by nature and that, in view of the fact that the constitutional power of the Commonwealth is limited by the presence of the expression "industrial disputes" in s.51(xxxv), persons engaged in such employment cannot take part in any system devised by the Commonwealth Parliament for the maintenance of peaceful labour relations in Australia. Chapters V - VII (together with Chapter VITI) are concerned with an examination of this question and its real relevance to a determination of the extent of the power granted in s.51(xxxv). It will be seen that the cases examined in this part of the thesis reveal some confusion on the part of the High Court between the jurisdiction conferred on the Commonwealth Parliament by the Constitution and that conferred on the Commonwealth industrial tribunal by the Conciliation and Arbitration Act and this tendency has made the task of organising this thesis into separate parts an extremely difficult one. For example, from one point of. view it might have been preferable to have examined the 1 recent case of Pirfield v. Framki in the earlier part of the thesis as that case deals with the meaning of "industry" from the point of view of the registration provisions in the Act. However, as the decision cannot properly be understood without reference to material appearing in Chapters VI and VII, it has seemed most desirable to devote a separate Chapter to that case, and the considerations discussed therein, towards the conclusion of the thesis. The only other point which need be made at this preliminary stage relates to the extent to which certain aspects 0f historical background have been examined. At first glance this examination may be thought to be excessive. However, when all things are considered, the cases dealt with in this thesis ultimately come back to questions of impression and, in this regard, it is essential to know something about the reasons for the formation of certain general impressions as to the extent of the Commonwealth industrial power. An examination 1. (1970) 44 A.L.J.R. 391. of the course of employer-employee disputes and the development of organisations of employees in Australia and Great Britain is contained in Chapter V and, in view 0f the way in which attempts have been made to limit the concept of industry (assuming that concept to lie at the basis of the Federal power), it has proved convenient to examine the efforts of the English Courts to draw a distinction between "manual" and "non-manual" employment. This examination is to be 1. found in Appendix A