HIGH COURT OF AUSTRALIA

                                                         Queen

                                                           Vs.

                                                       President

          (Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4), Taylor(5) and Windeyer(6) JJ)

                                                  9 September 1959

CATCHWORDS

Constitutional Law (Cth) - Conciliation and arbitration - Jurisdiction of Commission - Log of claims
by professional engineers - Employment described by reference to professional qualifications -
Engineers employed by State governments, agencies of State governments or municipal bodies -
Governmental character of employers - Whether inconsistent with work being industrial in character
- Jurisdiction where some employees described in log not industrially employed - The Constitution
(63 & 64 Vict. c. 12), s. 51 (xxxv.) - Conciliation and Arbitration Act 1904- 1958 (Cth), s. 4 (1),
definitions of "industry" and "industrial dispute".

HEARING

Sydney, 1959, April 2, 3, 6-10, 13-15; September 9. 9:9:1959

ORDERS NISI FOR MANDAMUS AND PROHIBITION.

DECISION

September 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 (1957) 100 CLR 155 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 minimun of 1,650 pounds per annum : for a "chartered engineer" a minimum of 2,200
pounds 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 [1957] HCA 95; (1957)
100 CLR 155 . 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. (at p231)

2. The foregoing represents the conclusion of the President (Kirby J.), of Gallagher J. and of Mr.
Senior Commissioner Chambers. Wright J. regarded the whole matter as within the Commission's
powers and Mr. Commissioner Portus examined the activities or purposes of the various sections
within the departments and agencies in contest and gave a considered list of all the various sections
wherein the performance of professional duties would or might be in the learned Commissioner's
opinion the lawful subject of regulation by award settling an industrial dispute. The decision of the
majority meant of course, on the one hand, a refusal by the Commission to exercise authority with
respect to the five departments and bodies last named but, on the other hand, an acceptance by the
Commission of authority over the remaining bodies covered by the objection that had been taken.
The Association of Professional Engineers thereupon obtained an order nisi for a writ of mandamus
commanding the members of the Commission to exercise the authority or jurisdiction that had been
refused. That was not how the order nisi was expressed but it is the effect. The affidavit by which
the application was supported sought a mandamus the tenor of which would command the
Commission to hear and determine according to law industrial disputes numbered C630 and C631
of 1957 and the order nisi was expressed in that form accordingly. Then on the other side the State
of New South Wales and five bodies or agencies of the State which the Commission had held to be
subject to its authority to settle an industrial dispute obtained as prosecutors an order nisi for a writ
of prohibition restraining the Commission from proceeding to exercise the authority thus asserted.
The five bodies are the Housing Commission, the Forestry Commission, the Water Conservation
and Irrigation Commission, the Maritime Services Board and the Electricity Commission. The tenor
of the writ sought was to prohibit the Commission from proceeding further with the hearing of
industrial disputes numbered C630 and C631 of 1957 and the order nisi for prohibition was granted
in that form. Finally the Council of the City of Sydney obtained an order nisi for a writ of
prohibition in the same terms, qualified however by the words "so far as they" (viz. the industrial
disputes) "relate to the prosecutor". The three orders nisi were argued together before this Court. (at
p232)

3. It will be seen from the foregoing account of the proceedings that what is in controversy between
the State of New South Wales and its agencies and the Association is the liability of the former to
the authority of the Commonwealth Conciliation and Arbitration Commission to determine by
award the salaries to be paid to officers of the character of professional engineers. So far as the State
of New South Wales is concerned the question is confined to the departments and agencies that have
been enumerated above in reference to the writ of mandamus and the writ of prohibition sought on
one side and the other. But both the State of Victoria (on behalf of the State itself and of certain
agencies of the State) and the State of Western Australia obtained leave to intervene in the argument
and these States supported the contentions of New South Wales. (at p232)

4. In terms none of the learned counsel representing the interests of the States attempted to contest
or to qualify the principles laid down in Amalgamated Society of Engineers v. Adelaide Steamship
Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129 as explained in Australian Railways Union v.
Victorian Railways Commissioners [1930] HCA 52; (1930) 44 CLR 319 . In other words there was
no denial of the general rule that apart from certain qualifications not presently material, unless the
contrary intention appears a legislative power of the Commonwealth is to be interpreted as
extending to operations of the States so far as otherwise they fall within the subject matter of the
power. And there was no denial of the specific application of the rule to s. 51(xxxv.) of the
Constitution which had been made in the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 .
That means that the Parliament may make laws which apply to the States and to agencies of the
States with respect to conciliation and arbitration for the prevention and settlement of industrial
disputes extending beyond the limits of any one State. Where the legislation giving authority to the
Commission applies it is enough that there is an industrial dispute extending beyond the limits of
any one State and it is not an objection to the exercise of the authority that a party affected bears the
character of a State or an agency of the State. But while in terms all this was left uncontested by the
learned counsel for the States the condition that the dispute must be industrial was insisted upon and
the character of the State and the agencies of a State was used as showing that in the case before us
the condition could not be fulfilled. Sitting as an Acting Deputy President of the Arbitration Court
Starke J. said that officers in the administrative branches of the States, such as clerks in the
Treasury, in the Lands Department and in the Law Department are not engaged in, or in connexion
with, any industry and are not persons over whom the Commonwealth Arbitration Court could have
any authority whatever (Commonwealth Public Service Commissioner v. Government Service
Women's Federation (1920) 14 CAR 794 ). This forms an apt contemporaneous statement of the
inapplicability of the federal industrial power to the administrative services of the States
notwithstanding the interpretation placed upon it in the Engineers' Case [1920] HCA 54; (1920) 28
CLR 129 . The fact that prima facie the administrative services of the States do not constitute a
description of employment in which an industrial dispute could arise forms the basis of the
objection upon which the States rely. It is not an over-simplification to say that in substance the
position of the States is that "professional engineering duties" as defined in the log when performed
in the departments or bodies enumerated above can never be the subject of an industrial dispute or
be governed by an award or determination settling an industrial dispute. But in the argument by
which the States attempt to make good this position an antithesis has been instituted between what is
"governmental" and what is "industrial". Unfortunately neither of these terms has any very definite
meaning and moreover, let the terms be used ever so carefully, it is impossible to fix meanings upon
the words which would make them mutually exclusive. Nevertheless constant resort in the argument
to the notion of "governmental function" as a category almost inevitably effected a tacit re-
introduction of the same tests of the application of s. 51(xxxv.) to employment by the States or their
agencies as were in use before the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 . Indeed
this actual but unacknowledged return to old discarded tests went so far that reliance was placed
upon the Australian Workers' Union v. The Adelaide Milling Co. Ltd. [1919] HCA 27[1919] HCA
27; ; (1919) 26 CLR 460 , the case which proved to be the last of the successive applications of the
doctrine so soon afterwards overthrown by the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129
. An attempt under cover of the word "industrial" in this fashion to go back and to re-employ former
tests of immunity is quite inadmissible. There is only one question and that is whether an industrial
dispute exists extending beyond one State for the settlement of which it is relevant or appropriate to
make an award regulating the terms and conditions of the employment of the Professional Engineers
by the State or the State agency or body. The industrial character of a dispute or part of a dispute
may be open to doubt, but the resolution of the doubt is not made easier if the supposition is adopted
that the "governmental" character of the service is actually inconsistent with its having an industrial
character. That which is naturally within s. 51(xxxv.)

cannot cease to be so because it is "governmental". It is enough to take a simple example. It may be
easy enough to say that a dispute between a State and the officers of the State employed in assessing
State land tax is not an "industrial dispute". As a matter of the use of English terms most people
would feel that this must be so and if they were called upon to give an analytic statement of the
reasons why, they would say that it stood outside the whole world of productive industry and
organized business. They might, by way of contrast with that, point to its governmental purpose.
But if they were then faced with the question whether a dispute arising from the demands of lift
attendants, office cleaners and the like upon their employers, industrial as otherwise it might be,
ceased to be "industrial" when it extended to or affected the land tax office because that was
governmental, surely the answer would be that the character of the building could not make a
dispute about the wages and conditions of employees doing such work any less industrial. I have not
overlooked the fact that in his dissenting judgment in Federated State School Teachers' Association
of Australia v. State of Victoria [1929] HCA 11[1929] HCA 11; ; (1929) 41 CLR 569, at p 584
Isaacs J. distinguished between Crown officials of the State engaged in administering true, essential
governmental authority who could not fall within s. 51(xxxv.) and those performing other duties
particularly "trading employees". "There is", said his Honour, "a line of demarcation inherent in all
British Constitutions which inexorably divides the two classes of cases" [1929] HCA 11[1929] HCA
11; ; (1929) 41 CLR 569, at p 584 . This of course derives through the well-known passage in the
judgment of Lord Watson in Coomber v. Justices of Berks (1883) 9 App Cas 61, at p 74 , in which
the administration of justice, the maintenance of order and the repression of crime are described as
being "among the primary and inalienable functions of a constitutional government". But I must
confess that it is a line of demarcation which I have never been able to trace for myself in what may
be described as the applied constitutional law or practice of today or to discover in legal history. In
all the developments of modern times it seems better to read s. 51(xxxv.) of the Constitution without
reference to such preconceptions whether well or ill founded and simply to determine whether
according to a proper understanding of what the State is doing and the nature of the services the
employees who may be in question perform the relevant operations in which it is engaged may be
affected by the Commission's award. I should add, with all respect to Isaacs J., that I cannot think
that when he applied the word "regal" to what he regarded as essential functions of government, it
was a happy choice to convey his meaning; no more happy than the choice of the phrase
"corpuscular wealth" in his discussion in the same case of the connotation of industrial dispute. (at
p235)

5. The expression "industrial dispute" in s. 51 (xxxv.) of course does not of itself amount to a
definition and is in fact merely a descriptive name of the dislocations, differences and tensions
among employers and employees which in various forms had grown only too familiar in production,
business or other organized work. The varying and sometimes discordant results of the attempts to
formulate some inclusive and exclusive definition of "industrial dispute" may be seen in the
judgments given in Federated Municipal and Shire Council Employees' Union of Australia v.
Melbourne Corporation (1919) 26 CLR 508 , particularly in the judgment of Gavan Duffy J. (1919)
26 CLR, at pp 579, 580, 582-584 . Until Proprietors of the Daily News Ltd. v. Australian
Journalists' Association [1920] HCA 43; (1920) 27 CLR 532 and the Insurance Staffs and Bank
Officials' Case [1923] HCA 61; (1923) 33 CLR 517 it had not been made clear that employment in
a form of business involving neither manual labour nor the production or handling of material
things, a financial business for example, might form the subject of an industrial dispute, because it
was found to be ancillary or incidental to the organized production, transportation and distribution
of commodities or other forms of material wealth. Before that it might have been considered that
employment in a business could not be the subject of an industrial dispute if, as in banking and
insurance, it was concerned directly only with intangibles. However, at length it became clear that
the propriety of applying the word "industrial" to a dispute might depend upon any one of a number
of factors. If the dispute is about employment to do work of a manual character always it has been
regarded as typically industrial and I doubt if it was ever considered necessary to go further. Indeed
that would be a sufficient reason for regarding the dispute as within s. 51(xxxv.) although there was
no "industry" or business organized for profit. Thus it was that the Municipalities' Case (1919) 26
CLR 508 brought within the conception a dispute between local councils and a union of employees
concerning the making, maintaining, controlling and lighting of public streets. On the other hand the
dispute might arise in an industry organized as an undertaking for some productive purpose or some
purpose of transportation and distribution. Then whatever the capacity in which a man is employed,
however removed he might be from the performance of manual work or labour, he has been
regarded as capable of being involved in an "industrial" dispute. One might not, for example, look
upon nursing as in itself industrial but the casualty staff forming part of a very large undertaking
would be regarded as involved in an industrial dispute if the undertaking as a whole were dislocated
in consequence of a disagreement about the terms and conditions of employment. (at p236)

6. It would be possible to point to many other elements or aspects of disagreements and differences
among employers and employees any one of which would or might be considered enough to bring
the dispute within the category of industrial dispute. That is because it is natural that such a very
wide and flexible phrase should apply according to conceptions of usage and of practical life rather
than to some logical connotation or precise analysis. In the State School Teachers' Case [1929] HCA
11; (1929) 41 CLR 569 in the judgment of Knox C.J., Gavan Duffy and Starke JJ. the argument is
referred to "that if the activities were carried on by a private person, such as a schoolmaster, then the
operations would be described as a business, a trade or an industry" (1929) 41 CLR, at p 575 . The
"operations" are those of the State Education Department. The argument appears to imply that the
private schoolmaster would carry on the operation for profit. In other words it seems to have been
assumed that possibly it might have been considered enough to bring school teaching within the
conception of the industrial organization of society except by those who regarded the intrinsic
nature of school teaching as taking the profession completely out of the field of business and
industry and out of any category incidental or ancillary thereto. But the close examination to which
that judgment in that case was submitted in the argument before us shows that a basal proposition in
the judgment is that the occupation which the State school teachers pursued is not by nature
industrial; something must be added to it to make it so, as for example, the pursuit of private profit.
The sentence that follows is condensed but it is clear - "An occupation confined to teaching in the
schools of the States has impressed upon it the character of the activity in which it is exercised"
(1929) 41 CLR, at p 575 . It means that unless the character of the State educational system makes it
so, there is nothing in the profession to bring it within the industrial arbitration power. What
precedes these sentences is directed to negativing successively the application of one possible reason
after another for saying that a dispute is industrial. (at p237)
7. If one turns from the case of the State school teachers to that of engineers you find that you are
concerned with a profession whose province is the higher control of the construction of physical
things and the higher control of the application of mechanics, electronics and chemical engineering
to the creation, maintenance and operation of material structures and objects. There is no prima
facie reason why the work of the profession should be considered to stand apart from the wide
conception of what is "industrial". In other words there is nothing in the nature of the duties usually
performed by a "professional engineer" which creates any prima facie presumption that a "dispute"
in which he or an association representing him or the interests of his profession is engaged with
employers concerning the terms and conditions of his employment should not fall within the
description "industrial" as that word is used in s. 51 (xxxv.). One should perhaps add that that means
according to the interpretation given to that power by the decisions of this Court. In considering the
present case it is important to bear in mind that there is no prima facie reason to suppose that the
employment of a professional engineer is not "industrial" within the meaning of s. 51 (xxxv.).
Important, however, as it is for the purposes of this case to note this point, it is paradoxically enough
much more important to grasp the fact that the case made on behalf of the States and their agencies
treats it as an irrelevancy. Doubtless they do not concede the correctness of the proposition that
prima facie the duties of a professional engineer are such that a dispute with his employers about his
salary and conditions of employment will form an industrial dispute. But the case for the States does
not turn on the inherent or presumptive character of the professional engineer's duties. It rests on the
character or functions of the department or agency he serves. The contention is that these
departments or agencies stand apart from the conceptions of the industrial organization of the
community and form arms or organs of government in which employees (at all events unless
actually engaged in some recognized industrial task) can answer to none of the tests which have
from time to time been propounded of what is "industrial" for the purpose of s. 51 (xxxv.). The
qualification expressed by the words "unless engaged in some recognized industrial task" means no
more than that the proposition in its application is not pushed beyond those whose task is not
recognized as industrial. To this extent perhaps it may be said that the nature of a professional
engineer's work was used as a foundation for the argument of the States. But all it comes to is that
this case is not concerned with actual manual workers in a regular pursuit or calling. It remains true
that it is the governmental character of the State department or body that is relied upon as taking the
dispute arising from the log of demands outside s. 51 (xxxv.). Now it must be said at once that the
question whether it takes the dispute outside s. 51 (xxxv.) of the Constitution is entirely independent
of another question which arises. That other question is whether the statutory definition of the
expression "industrial dispute" in s. 4(1) of the Act is inapplicable and whether by consequence the
case to some and what extent falls outside the Act by which the Parliament has exercised its
legislative power derived from s. 51 (xxxv.). That question ought not to be confused with the States'
case under the Constitution and accordingly its consideration will be left until the case for the States
under the constitutional power has been dealt with. Now for the purpose of that case the exact duties
of the various descriptions of professional engineers in the service of the Government of the State of
New South Wales or its agencies have not been investigated. One reason no doubt is that the case
for the State is put on the functions of the departments and agencies of the State and not on the
duties of the man. A general notion only has been given of what engineers do in the agencies and
departments involved. It is what the departments and agencies do that has been shown and what a
close relation the operations of those departments and bodies have to the central government of the
State, its policies and its administration. This I repeat appears to be returning by another route to the
doctrine abandoned in 1920. Much may be said, and at the time was said, against the course then
taken in abandoning the doctrine that had been pursued. The general propositions expressed in the
Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 were expressed with a certain emphasis and
perhaps copiousness of epithet which no doubt were to be accounted for by the conscious change in
fundamental doctrine which the judgment made. At the same time a close study of the text might
suggest that it was not without ellipses. Perhaps in these circumstances the reservations and
qualifications therein expressed concerning the federal power of taxation and laws directed specially
to the States and also perhaps the prerogative of the Crown received too little attention. These are
matters on which I have expressed my views in Melbourne Corporation v. The Commonwealth
[1947] HCA 26; (1947) 74 CLR 31 . But there could be no doubt of the interpretation that s. 51
(xxxv.) received. It simply was that the legislative power conferred by s. 51 (xxxv.) applied to the
States and the organs and agencies of the States. Nothing remained, so it has appeared to me, except
to determine whether any given dispute arising between a State or the agencies of a State and its or
their employees can amount to or be included in an industrial dispute. Since that date interpretations
of s. 51 (xxxv.) in respect of other questions have been established which have resulted in a marked
widening of the application previously made of the legislative power. Perhaps the most important
and far-reaching is the conception given form in Burwood Cinema Ltd. v. Australian Theatrical and
Amusement Employees' Association [1925] HCA 7; (1925) 35 CLR 528 , and the very large
extention of that conception in the Metal Trades Employers Association v. Amalgamated
Engineering Union [1935] HCA 79; (1935) 54 CLR 387 . The difficulties which have been felt over
the present case are perhaps in no small degree traceable to the almost uninhibited use of this
conception made by the framer of the log of demands put forward by the Professional Engineers'
Association. For in that log a claim has been made on behalf of professional engineers considered as
a class defined by nothing but their qualifications, and moreover the claim has been made in respect
of work identified only by the need to possess the qualification in order to perform the work or
some part of it. But it is a case where the selection of the parties to be served has also operated of
necessity as a further identification of the subject of the dispute. For the department, body, or other
employer served with the log of demands was apprised of the intention to insist on the terms and
conditions described therein in relation to those performing professional engineering duties in that
service. Suppose nevertheless there be persons in the employ of a particular department or agency
qualified but doing work which could not fall within the scope of the constitutional power conferred
by s. 51 (xxxv.). Obviously they are not for that reason outside the demand. If the demand creates a
dispute in fact based on disagreement they are not outside the dispute, considered independently of
its "industrial" character. What they are outside is the constitutional power which would enable the
Commission to deal with the dispute so far as it is industrial. But that cannot mean that the dispute
so far as it affects all the other professional engineers in that employ and the employ of other
employers is outside the power. The dispute so far as it concerns employment within s. 51 (xxxv.)
remains subject to the authority of the Commission. Of course all this is hypothetical and it is stated
only to bring out more clearly the fact that what we are here dealing with is simply a denial of the
possibility of the parties served becoming subject to the authority of the Commission to settle this
dispute. We are not following the ramifications of the various services to see if there are
professional engineers whose work an award of the Commission could not cover. This may seem to
leave a situation which is administratively ver undesirable. If so the discretion of the Arbitration
Commission is wide enough to meet it, laborious and intricate as the task of doing so might prove to
be. Strange situations arise under s. 51 (xxxv.) but that is a consequence of the peculiarity of the
legislative power. The steps which the decisions of the Court took by which the enlargement of
earlier conceptions of the power was effected may not have been all necessary but it is useless to
attempt to go behind the principles they establish; and it appears to me that it is firmly established
that given an industrial dispute to which the jurisdiction attaches there is no constitutional reason
why States may not be bound with respect to the employment of persons within the ambit of the
dispute. (at p240)
8. It is now possible to go back to the departments and bodies enumerated earlier in this judgment as
respectively the subjects of the application for mandamus and the application for prohibition. The
first in order is the Department of Public Works. It is almost needless to say that the State
Dockyards and the Brickworks, subdivisions or sections contained within the Department, were
rightly regarded as, so to speak, belonging to the industrial system and as undeniably forming partof
the organization of production, so that no reason existed why an engineer's employment in either
subdivision should not be the subject of an industrial dispute extending beyond the limits of any one
State. But there is nothing in the character of the Department as a whole to provide a prima facie
reason why a professional engineer, being an officer of the Public Works Department, should be
incapable in that capacity of falling under an exercise of the power which the Parliament is enabled
by s. 51 (xxxv.) to confer upon the Conciliation and Arbitration Commission. However high a place
such a professional engineer may take in the planning of constructional works or in the making of
policy concerning them there is no prima facie reason for supposing that his employment is of a
kind falling outside the possible application of the conception of an industrial dispute. Investigation
of the position of a given man may show that his particular employment could not be the subject of
an industrial dispute but, as I have endeavoured to emphasize, the point of these orders nisi is not
that this professional engineer or the other professional engineer is engaged in work which lies
outside the application of the federal legislative power with respect to conciliation and arbitration to
prevent and settle industrial disputes. The foregoing observations are even more directly applicable
to the Water Conservation and Irrigation Commission. The distinction between the purposes of the
Commission in supplying or selling water and the remainder of its work does not appear to me to be
a valid distinction for the purpose in hand but it is hardly necessary to say that the employment of
officers in the section of the Water Conservation and Irrigation Commission even more clearly falls
under the federal power conferred by s. 51 (xxxv.). All this is true of the Metropolitan Water
Sewerage and Drainage Board and of the Hunter District Water Board and is doubly true of the
Department of Main Roads. It necessarily follows from what has been said that the Conciliation and
Arbitration Commission properly asserted authority and jurisdiction over the Maritime Services
Board, the Electricity Commission of New South Wales, the Joint Coal Board and the State Mines
Control Authority. As to the Sydney County Council, St. George County Council, Northern Rivers
County Council, and the Sydney City Council and the Newcastle City Council there can, in my
opinion, be no ground for excluding them from the authority with respect to the alleged disputes of
the Commonwealth Conciliation and Arbitration Commission. (at p242)

9. If there be any professional engineer who, applying the principles suggested above, is found to be
outside the industrial field because of the character of his individual work, that would be a matter
for the Commission to consider in making its award. (at p242)

10. Up to this point this judgment has dealt only with the extent to which the constitutional power
enables the Parliament to arm the Conciliation and Arbitration Commission with authority or
jurisdiction to make an award binding the States and the agencies of the States. There remains the
important and somewhat difficult question of the extent to which in the Conciliation and Arbitration
Act 1904-1958 the constitutional power has in fact been exercised in reference to the States and the
agencies or organs of the States. In effect that question is how far the powers and functions
entrusted by Pt III of the Conciliation and Arbitration Act 1904-1958 to the Commission are meant
to operate in relation to the States. The question depends on par. (c) in the definition in s. 4(1) of the
term "industrial dispute". Section (4)(1) contains the definitions upon which the provisions of the
Act depend. The definitions are for the most part obviously not designed as restrictive. Their
purpose is to extend the application of the jurisdictional provisions of the Act. The definition of
"industrial dispute" however begins with the word "means" and that of course operates to give the
expression which it introduces an exhaustive effect. But the word "means" governs only two
paragraphs of the definition, pars. (a) and (b), and they contain general words covering only the
abstract elements which will amount to an industrial dispute, applying equally to natural persons,
corporations and States and agencies of States. After pars. (a) and (b) there follow the words "and
includes", words which of course make it clear that what follows is not necessarily exhaustive.
Three paragraphs follow, pars. (c), (d) and (e). They relate to specific points. Paragraph (c) says that
an industrial dispute "includes such a dispute in relation to employment in an industry carried on by,
or under the control of, a State or an authority of a State". Paragraph (d) has similar words in
relation to the Commonwealth but it is an enactment made as an exercise of the power conferred by
s. 52(ii.) and s. 51(xxxix.) of the Constitution and as it is not enacted in reliance on s. 51(xxxv.) the
paragraph is expressed to cover disputes whether extending beyond the limits of any one State or
not. Paragraph (e) deals with a special question arising from the Public Service Arbitration Act. It is
not presently material and it is unnecessary further to notice it. The first question which arises is
whether par. (c) is a positive statement which implies a negative. Does it imply that an industrial
dispute to which a State is a party is not to be counted as an industrial dispute unless it can be
correctly said that there is an industry carried on by or under the control of the State and that the
dispute is in relation to employment in that industry? It is of course a question of interpretation. But
if the question were answered that par. (c) is an exhaustive statement of the authority of the
Commission in a dispute concerning a State, there then must arise the question what is the meaning
and application of the expression "an industry carried on by, or under the control of, a State or an
authority of a State". The first of these two questions, having regard to the definitions, cannot be
satisfactorily dealt with unless the problem involved in the second of them is understood. It will
therefore be convenient to deal with the latter at once. The word "industry" is defined in s. 4(1) as
"including (a) any business, trade, manufacture, undertaking, or calling of employers; (b) any
calling, service, employment, handicraft, or industrial occupation or avocation of employees; and
(c) a branch of an industry and a group of industries". Doubtless the word "avocation" is a mistake
for "vocation", a mistake so commonly made. If one turns to the definition of "employer" it will be
found that the word is defined to mean any employer in any industry and to include any person who
is usually an employer in an industry and to include a Club. The word "employee" is defined to
mean any employee in any industry and to include any person whose usual occupation is that of
employee in any industry. It will be seen that the definition of "industry" depends upon the two
words employers and employees, while the definition of those words depends upon the persons to
whom they apply being employers or employees in an industry. This circular method of definition is
of course logically indefensible but, notwithstanding what was said by Latham C.J. in the State
Public Service Case (1942) 66 CLR 488, at pp 499-501 , I do not think that it operates to narrow or
exclude the application of the definition of "industry" contained in the three pars. (a), (b) and (c) of
the definition in s. 4(1). The question is, however, whether that definition applies to par. (c) of the
definition of "industrial dispute". There is no difficulty in treating a business, trade, manufacture or
undertaking of employers as carried on by the State. That is the phrase which results from
combining four of the words contained in par. (a) of the definition of "industry" with the words of
par. (c) of the definition of "industrial dispute". And as to the fifth word "calling", although the
phrase is somewhat awkward there is little difficulty in the conception of a "calling" of employers
being carried on by or under the control of the State. When, however, one passes to par. (b) of the
definition of "industry", that relating to employees, there is a little more difficulty if in place of the
word "industry" in par. (c) of the definition of "industrial dispute" a literal substitution is made of
the words used in par. (b) of the definition of "industry". The substitution results in a combination
which says "such a dispute in relation to employment in a calling, service, employment, handicraft,
or industrial occupation or avocation of employees carried on by or under the control of a State".
We know that in the development of the Act these incongruities have arisen from changes in the
definitions as they originally stood. But it is right to construe the Act as it now stands. What in
effect is the contention for the States is that in par. (c) of the definition of "industrial dispute" you
must first reject the definition of "industry" as inapplicable or at all events reject par. (b) of the
definition of "industry" and, having done so, construe "industry" in the narrow sense of a business
or enterprise or an undertaking regarded as an organized unit. If par. (c) of the definition of
"industrial dispute" could be limited to employment in an industry in the narrow sense of such an
enterprise or business or undertaking and if the definition were interpreted as applying only to an
industry in that sense when carried on by or under the control of the State or an authority of the
State and further interpreted as implying that otherwise the Act should not touch the State, then
there would be much to be said for limiting the operation of the Act in the way contended for by the
State of New South Wales. But one cannot read the definitions without feeling confident that it was
not the intention to limit the application of the word "industry" in this way. Plainly the principle it
was sought to establish by the definition of the word "industry" was that it would embrace all that
might be regarded as an industry from the point of view of the pursuit or craft of the men or the
undertaking, the business or the vocation of the employer. It may be clumsy to apply the definitions
literally to the State but the general intention is plain enough. The words "carried on" are susceptible
of a very extended meaning or application, a meaning or application covering such conceptions as
conducting, directing or operating. The word "by" may be regarded as meaning no more than
through the instrumentality of the State, while the words "under the control of" refer rather to a less
direct relation. I do not think that a restrictive interpretation can be given to the Act based upon par.
(c) of the definition of "industrial dispute". Perhaps the correct view is that no negative is implied
by the positive statement contained in par. (c). But in any event it seems to be contrary to the true
intention of the provisions of Pt III construed in the light of all the definitions in s. 4(1) if the
authority of the Commission to settle the dispute raised by the log by a binding award be treated as
insufficient to include any of the departments or bodies that have been enumerated on the ground
that the operations for which the department or body is responsible do not answer the narrow
conception of a business, an enterprise or an undertaking constituted as a single organized unit. (at
p245)

11. For the foregoing reasons the objections to the jurisdiction of the Conciliation and Arbitration
Commission appear to me to fail. But it is necessary to restate again that the objections are founded
on the character of the State as an employer and of the State bodies as employers. It would not be
inconsistent with my decision for the Conciliation and Arbitration Commission to exclude given
officers who happen to be performing duties falling within the definition given by the log of the
duties of professional engineers on the ground that the officers are not in fact concerned with
anything but bare administrative service to the State unconnected with any kind of constructional
work or preparation for constructional work or with any other matter which might be regarded as
providing a sufficient connexion with operations that might be described as industrial within the
meaning of s. 51 (xxxv.) of the Constitution. (at p245)

12. There was some discussion at the hearing of the orders nisi as to what possible effect a discharge
of the orders nisi without qualification might have in precluding an investigation of some given
case, if, for example, an engineer's title to benefit from a future award were questioned. However, it
clearly could not preclude any such inquiry by the Conciliation and Arbitration Commission. What
operation it might have on issues which the State might otherwise wish to raise in connexion with
the form of any award which the Commission may make hereafter is entirely a speculative question.
Probably no situation is to be expected in which the question could really arise or matter. (at p245)
13. In my opinion the orders nisi for prohibition should be discharged and the order nisi for
mandamus should be made absolute. To make the order nisi for mandamus absolute in its present
form requires the Commission to hear and determine the whole dispute, but that is not incompatible
with the use by the Commission of such powers as, for example, that conferred by s. 41(d). I would
make the order nisi for mandamus absolute as it stands, moulding it in such a way as to admit of a
reconstitution of the Commission for the purpose of the hearing of the disputes. (at p246)

McTIERNAN J. In my view the bodies which make common cause in these proceedings with the
State of New South Wales are governmental or quasi-governmental authorities. As in the case of the
State of New South Wa les, none of them is an industry, government and industry being essentially
different. I do not, however, regard government as merely a closed category of "indispensable" and
"regal" functions. The description "governmental" is wider than "executive" or "administrative"
(Maitland, The Constitutional History of England, p. 196). Executive or administrative functions are
at the heart of government. They are not industrial activities. But a governmental industry is a well-
known entity. That does not mean that the management of such an industry is itself an industrial
activity; it is, on the contrary, an administrative function. The materials before the Court show that
all the employers concerned in the present proceedings carry on substantive activities which the
provisions of s. 4 of the Conciliation and Arbitration Act relating to the meaning of "industry"
include in that term. I think that the apt terms here are "business", "trade" or "undertaking". But to
be included in "industry", such an activity must be "industrial" from the point of view of s.
51(xxxv.) of the Constitution. Under our system of polity the activities in question are such as might
be carried out either by the State or a public authority or by private enterprise. They are activities
which pertain to industry. The fact that any one of them is carried on by the Government or by a
public body does not deprive it of its industrial character. A State or a governmental body is within
the range of s. 51(xxxv.) of the Constitution so far as it is an employer in an "industry": Section 4
(a) of the Conciliation and Arbitration Act defines "industrial dispute". In my opinion, par. (a) of the
definition would, apart from par. (c), apply to an industrial dispute in which the State of New South
Wales or any other of the authorities was involved as an employer in an industry within the meaning
of the Act, and par. (c) of the definition is declaratory as to the width of par. (a). (at p246)

2. The remaining question to be determined is whether the employees on whose behalf the
Association of Professional Engineers framed the log of claims are employees in any "industry". It
must be an industry which is "a calling &c. of employees" under par. (b) of the provisions of s. 4
relating to the meaning of "industry". (at p247)

3. If the employees in whose interests the Association framed its log are in an "industry" within the
meaning of the Act, the Association should succeed in all the present matters. The part of the log of
claims which is material for present purposes is in these words: "'Employer' shall mean any
employer, council, board, commission, Government department, authority, trust, corporation,
company or other body or person upon whom this Claim is served, or the successor of any of the
above. 'Professional Engineering Duties' shall 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. The
said qualifications are those prescribed for or as granting complete exemption from the examination
for Associate membership of The Institution of Engineers, Australia and are set out in Schedule 'B'
hereto. 'Professional Engineer' shall mean a person qualified to carry out Professional Engineering
Duties as above defined. The term 'Professional Engineer' embraces and includes 'Qualified
Engineer' and 'Chartered Engineer' as hereinafter defined. 'Qualified Engineer' shall mean a
Professional Engineer, other than a 'Chartered Engineer' as hereinafter defined, that is, it shall mean
a person who is or is qualified to become a Graduate of The Institution of Engineers, Australia or a
member of The Association of Professional Engineers, Australia. 'Chartered Engineer' shall, for the
purposes of this Claim, mean a Professional Engineer in any particular employment the adequate
discharge of any portion of the duties of which employment requires qualifications of the employee
as (or at least equal to those of) an Associate Member of The Institution of Engineers, Australia.
Division 2. Salaries: For an employment involving the performance of Professional Engineering
Duties. (i) Qualified Engineer. The minimum rate of salary which shall be paid to a Qualified
Engineer shall be 1,650 pounds per annum. (ii) Chartered Engineer. The minimum rate of salary
which shall be paid to a Chartered Engineer shall be 2,200 pounds per annum". The qualifications
set out in "Schedule B" mentioned in this extract are degrees and diplomas conferred by Australian
Universities and Technical Colleges. (at p247)

4. The Institution of Engineers, Australia, referred to in the extract, is essentially a professional
body. Clearly it is not an industrial organization. It would appear from the extract that its members
include engineers who are employees, and that "Qualified" and "Chartered" engineers on whose
behalf the claims are made may be members of the Institution. The reference in the definition of
"Professional Engineering Duties" to the Institution in prescribing the criterion of such duties
indicates the truly professional nature of the employment covered by the log of claims. (at p248)

5. There is no decision of this Court which says that the profession of engineering is within either
par. (a) or par. (b) of the provisions in s. 4 relating to the meaning of "industry". Here the Court is
concerned only with the question whether when the profession of engineering is the occupation of
employees it is within par. (b). That this question remains open would follow from an observation
of Fullagar J. in The King v. Blakeley; Ex Parte Association of Architects, &c. of Australia [1950]
HCA 40; (1950) 82 CLR 54 regarding certain kindred occupations. His Honour said: "I may add
that it has occurred to me to wonder whether members of the prosecuting Association are engaged
in industry within the meaning of the Constitution and of the Commonwealth Conciliation and
Arbitration Act. That question, however, has not been raised in these proceedings" (1950) 82 CLR,
at p 96 . (at p248)

6. The profession of engineering when carried on by employees is not an "industry" unless what s. 4
enacts as to "industry", from the point of view of employees, applies: Melbourne and Metropolitan
Tramways Board v. Municipal Officers' Association of Australia [1944] HCA 7; (1944) 68 CLR
628, at p 634 . The word "profession" is not in par. (b). This paragraph of s. 4 reads: "'Industry'
includes - (b) any calling, service, employment, handicraft, or industrial occupation or avocation of
employees". However some of the terms used there are capable of referring to professions followed
by employees but such professions must be of an industrial nature to be included in "industry" for
the purposes of the Act and the constitutional power. Referring to a similar provision regarding the
meaning of "industry" Knox C.J., Gavan Duffy J. and Starke J. said in the Teachers' Case [1929]
HCA 11; (1929) 41 CLR 569 : "It is engagement in an occupation, and not employment in the
business or industry of the employer that is the feature of this definition. But even if this be so, the
definition cannot enlarge the meaning of the phrase 'industrial dispute' in the Constitution, and the
occupation must be of an industrial nature" (1929) 41 CLR, at p 575 . In that case the same
members of the Court rejected a view that the word "industry" includes for the purposes of the
Constitution "processes which are concerned with services such as the administrative services of
public officials and skilled professional advice of doctors and lawyers" (1929) 41 CLR, at pp 573,
574 . It seems to me that it would be correct to add members of the engineering profession to the list
mentioned by the Court. "Skilled" is an important word in the quotation. The practice of the
profession under consideration consists in giving skilled advice and services regarding matters in the
field of the special knowledge or training of a professional engineer. The advice or services may be
given to the client by the principal in a practice, or by a professional engineer who is an employee. I
think that neither the professional business of the principal nor the occupation of the employee -
professional engineer - is an "industry". If it is not, surely neither principal nor employee would
become an industrial worker by following his profession in the Public Service. (at p249)

7. I think that it is inappropriate to apply here the principle that an employee need not be a manual
worker to be an employee in an "industry". To say of a professional engineer merely that he is not a
manual worker obviously leaves out all that is important about his occupation for present purposes.
Workers who are not manual workers may, nevertheless, be part of the labour force, for example,
foremen, timekeepers, clerks and so forth, engaged on an industrial job. But a professional engineer
giving his advice or services in connexion with the operations cannot properly be classified with
such workers. I do not feel impelled by the decisions regarding municipal workers, clerks in gas
companies, bank clerks, insurance clerks and journalists, to decide that the engineering profession is
an occupation of an industrial nature. I think that it is better to classify professional engineers with
members of the learned professions. In the present state of the authorities, it could not in my opinion
be successfully contended that under the definitions of "industry" in s. 4 of the Commonwealth
Conciliation and Arbitration Act or for the purposes of the Constitution lawyers and doctors either
as the principals in a practice or as employees are industrial workers. The argument advanced to the
Court that the engineering profession is an industrial occupation rests mainly on the word
"engineering". In my opinion that word, used as a description of the profession, points to the art in
which a professional engineer has been educated and trained and signifies an employment which
involves the conception of a project, suitable and practicable for his client's purposes, the expression
of its form in plans or blue prints and the performance of services requiring special skill and
scientific knowledge upon which the successful materialization of the project and its maintenance
and operation depend. The products of the professional engineer's labour are the designs,
specifications, plans and reports, and the giving of professional advice and supervision on the job.
But the building or structure in respect of which he gives his services is the product of the industrial
workers of all classes engaged on it. In my opinion the employment covered by the log of claims is
not work of an industrial nature. Performance of "Professional Engineering Duties" does not
become an industrial occupation simply because the employer of the professional engineer chooses
to apply the latter's scientific knowledge, skill and advice to certain industrial ends. The occupation
of a professional engineer does not partake of the industrial nature of the business, trade or
undertaking carried on by his employer. (at p250)

8. Of course, the decision which I have given does not affect the jurisdiction of any industrial
tribunal of a State. (at p250)

9. In my opinion, the Association and its members cannot raise an "industrial dispute" upon the
basis of the log of claims. The result is that the order nisi for mandamus should be discharged, and
the orders nisi for prohibition should be made absolute. (at p250)

FULLAGAR J. I agree with the judgment of the Chief Justice in this case, and I have nothing to
add. (at p250)

KITTO J. The endeavour which has been made on behalf of the government departments and
governmental bodies represented before the Court to maintain that the governmental nature and
purpose of their functions excludes the possibility of their being engaged with members of their
staffs in an industrial dispute in the constitutional sense of the expression, could not succeed without
a radical departure from established constitutional principle. The alternative endeavour, to place
upon the provisions of the Conciliation and Arbitration Act which define "industrial dispute" for the
purposes of that Act a construction which excludes disputes, even though they be industrial disputes
in the constitutional sense, which arise between the departments and bodies referred to and members
of their staffs, finds support in verbal considerations but fails to give effect to the intention which
nevertheless appears from the Act with sufficient clearness. For both these conclusions I respectfully
adopt the reasons which have been stated by the Chief Justice. (at p250)

2. This means that the Association is entitled to succeed in the proceedings in this Court, but it
succeeds only by a modification of the attitude which the log was, as I read it, intended to maintain.
It put forward claims in respect of salaries and conditions of employment "for its members and all
other Professional Engineers eligible for membership" when in "an employment involving the
performance of Professional Engineering Duties". The expression "Professional Engineering Duties"
was 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". The definition seems to have been
carefully framed to give effect to a view that on the question whether a dispute arising from the
rejection of the log is industrial (in the constitutional and statutory senses) the nature of the duties
involved need not be considered for any other purpose than to see whether the qualifications
required for the performance of any part of them are of the order which is indicated. The contention
thus intimated is logically pursued in the definition of "Professional Engineer" as meaning a person
qualified to carry out Professional Engineering Duties as previously defined. It is not weakened by
the fact that eligibility for membership of the Association, which needs to be considered because the
claiming clause of the log refers not only to members but to Professional Engineers eligible for
membership, is confined to persons temporarily, permanently or "usually" employed in or in
connexion with "the industry of engineering" (whatever that may mean). (at p251)

3. It seems that at one stage of the argument before the Commission counsel for the Association
used language which was apt to express the view apparently held by the draftsman of the log; for the
judgment of the majority of the Commission attributes to him the contention that "every time an
engineer is employed as an engineer he is employed industrially". This, however, goes beyond the
general tenor of the submissions made. Another quotation seems to show more accurately the
proposition that was being put forward: "This Commission", Mr. Gillard said, "has jurisdiction to
examine the activities of the engineer engaged by the respondent and to discover whether that
activity is industrial. . . . Is it an activity in regard to which, if the employer were a private person,
the employee would be said to be industrially employed; or, putting it another way, looking through
the eyes of an employee, can he be said to be employed in an industrial way". (at p251)

4. In substance this submission was sound, as the judgment of the Chief Justice shows; but perhaps
the point may usefully be underlined that to give effect to it is to hold that even though a single
demand, intended to be inseverable, is made in respect of a mass of employees of whom some only
are so employed that a dispute in relation to them exclusively would be an industrial dispute in the
constitutional sense, a refusal of the entire demand creates an industrial dispute in relation to the
employees who are so employed. The point is important here, because the Association sent its log to
employers with a letter which stated the Association's intention, if the employers were not prepared
either to grant the demands or to meet the Association in conference, to seek to have "the whole
matter in dispute" brought before a commissioner with a view to the obtaining of awards. If, in
pursuance of the intention which seems to have animated both the log and the letter, the Association
had maintained before the Commission and this Court that between the Association and all the
employers served, or between it and each employer served, or (as the form of the proceedings in the
Commission would seem to suggest) as between it and each of ten groups of the employers served,
there was one indivisible dispute as to all employees of the description contained in the claiming
clause at the head of the log, and that that one dispute was an industrial dispute, the contention must
have failed. It would not have been correct, in my opinion, to hold that, because (as no doubt the
fact is) the employees are very few who fall within the description but are employed on work of
such a kind that a dispute limited to them would not be industrial, the entire dispute must be allowed
the general character of an industrial dispute. The reason why the Commission has authority to
proceed is that the parties are in dispute as to employees the character of whose work would make a
dispute as to them alone an industrial dispute. There is for that reason an industrial dispute as to
those employees, and none the less so because the dispute as to them forms part of a wider dispute.
To the former dispute, but not to the latter, the constitutional power extends and the authority of the
Commission exists. (at p252)

5. In my opinion the applications for prohibition should be refused, and on the application for
mandamus there should be an order absolute so expressed that the Commission will proceed to
ascertain in relation to each employee concerned, by considering the duties of his employment,
whether the dispute or disputes created by the making and non-acceptance of the demands in the log
is or are industrial (in the constitutional sense and within the meaning of the Conciliation and
Arbitration Act) in so far as it relates or they relate to him, and will proceed to settle so much of the
dispute or disputes as is thus found to be industrial. (at p253)

TAYLOR J. The questions which we are called upon to consider in these matters have arisen in the
course of proceedings before the Commonwealth Arbitration Commission in which the Association
of Professional Engineers, Australia, an organization of employees registered under the Conciliation
and Arbitration Act 1904-1958, is seeking an award in settlement of an industrial dispute, or
industrial disputes, created, it is said, by the service and rejection of a log of claims. The log, with
modification in some cases, was served upon a number of employers in the various States and also
upon a number of State Government Departments and other public authorities. Among the latter
were a number of public bodies in New South Wales and these included the Public Service Board,
the Department of Main Roads, the Department of Public Works, the Housing Commission, the
Forestry Commission, the Water Conservation and Irrigation Commission, the Maritime Services
Board, the Metropolitan Water Sewerage and Drainage Board, the Hunter District Water Board and
the Council of the City of Sydney. Not dissimilar authorities in the other States were also served
with the log and the States of Victoria, South Australia, and Western Australia have intervened in
these proceedings to support the objection that the Commonwealth Arbitration Commission has no
authority to make an award prescribing the conditions to be observed by the public authorities
referred to in the employment of members of the organization. This objection rests primarily upon
the contention that disputes concerning the conditions upon which the specified authorities may
employ members of the organization are not "industrial disputes" within the meaning of that
expression in s. 51 (xxxv.) of the Constitution and, alternatively, upon the view that the same
expression as defined and used in the Conciliation and Arbitration Act, 1904-1958 has a narrower
significance and does not extend to cover disputes as to conditions of employment between an
organization of employees on the one hand and, on the other, a State of the Commonwealth or
authorities which represent it or which it has created for specified public purposes. (at p253)

2. It will be seen that the primary and alternative contentions relate to two separate and distinct
questions. The first is concerned with one aspect of the relevant legislative power and the question
must be solved by considering what are, in the sense in which that expression is used in par. (xxxv.),
"industrial disputes extending beyond the limits of any one State". The alternative contention, on the
other hand, is concerned with the construction of the relevant provisions of the Conciliation and
Arbitration Act and the determination of the question whether or not the expression "industrial
dispute" is used in the Act with the fullest significance permissible under the constitutional power.
(at p254)

3. Prior to the Engineers' Case (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd.)
[1920] HCA 54; (1920) 28 CLR 129 the effect of the generally accepted doctrine of the immunity
of State instrumentalities made it inevitable, in cases which affected a State or some one or more of
its statutory authorities, that these substantive questions should assume a secondary importance. In
effect, the question specifically examined on a number of occasions was not so much the extent of
the legislative power which the words of par. (xxxv.) purport to confer as the nature and extent of
the restrictions imposed by the doctrine in question. The earliest case of this character was, of
course, the Railway Servants' Case (The Federated Amalgamated Government Railway and
Tramway Service Association v. The New South Wales Railway Traffic Employees Association)
[1906] HCA 94; (1906) 4 CLR 488 in which it was held that the doctrine enunciated in D'Emden v.
Pedder [1904] HCA 1; (1904) 1 CLR 91 was reciprocal and that, since the "State Railways" should
properly be regarded as a State instrumentality, the Commonwealth Conciliation and Arbitration Act
1904 was invalid to the extent to which it purported to affect "State Railways". At that time the
expression "industrial dispute" was defined to mean a dispute in relation to industrial matters
"including disputes in relation to employment upon State railways". These words were omitted from
the Act in 1910 when the amending Act of that year (No. 7 of 1910) substituted in the Act a
modified definition of "industrial dispute". But the decision in the Engineers' Case [1920] HCA 54;
(1920) 28 CLR 129 meant that in future cases affecting a State or State authorities a more precise
examination of the content of the constitutional power would be necessary. To some extent,
however, a somewhat similar task had been undertaken some two years before the Engineers' Case
[1920] HCA 54[1920] HCA 54; ; (1920) 28 CLR 129 when it was held by a majority of the Court
that municipal corporations with powers of local government were not "instrumentalities of State
Government" and, therefore, not exempt from the operation of legislation enacted by the
Commonwealth Parliament pursuant to par. (xxxv.). In that case the question raised by the case
stated and as amended during the hearing (see (1919) 26 CLR, at p 516 ) was whether the
Commonwealth Court of Conciliation and Arbitration had power or jurisdiction to determine by an
award a dispute between the organization and the municipal corporations concerned so far as it
related "to such operations of the said municipal corporations as consist of the making, maintenance,
control, and lighting of public streets or any of them" and this question the majority answered in the
affirmative. In dealing with the case Isaacs and Rich JJ. expressed the view that the concept of
"industrial disputes" might be stated as follows: "Industrial disputes occur when, in relation to
operations in which capital and labour are contributed in co-operation for the satisfaction of human
wants or desires, those engaged in co-operation dispute as to the basis to be observed, by the parties
engaged, respecting either a share of the product or any other terms and conditions of their co-
operation. This formula excludes the two extreme contentions of the claimant and the respondents
respectively. It excludes, for instance, the legal and the medical professions, because they are not
carried on in any intelligible sense by the co-operation of capital and labour and do not come within
the sphere of industrialism. It includes, where the necessary co-operation exists, disputes between
employers and employees, employees and employees, and employers and employers. It implies that
'industry', to lead to an industrial dispute, is not, as the claimant contends, merely industry in the
abstract sense, as if it alone effected the result, but it must be acting and be considered in association
with its co-operator 'capital' in some form so that the result is, in a sense, the outcome of their
combined efforts. It also implies that 'an industry', in the relevant sense, is not confined to a single
enterprise, but means a class of operations in which all persons, employers and employees, are
engaged on the same field of industry - not necessarily of commerce - provided by the society in
which they exist." (Federated Municipal and Shire Council Employees' Union of Australia v.
Melbourne Corporation (1919) 26 CLR 508, at pp 554, 555 ). The concept is, of course, widely
stated and later experience may provide grounds for thinking that its limits are not sharply defined.
Indeed, there may be reasons for thinking that the literal application of these observations may
cover a field, in some respects too wide and, conversely, exclude disputes which according to later
authority are truly "industrial disputes". But the expression "industrial disputes" is an expression of
wide denotation and in the complexity of modern industrial and economical development it is no
criticism of an attempted definition that it does not once and for all provide a certain guide for all
future cases. In the same case Higgins J. was impressed by the difficulty of attempting a complete
definition and observed that it was not necessary "in order to determine whether this dispute (a
dispute between street cleaners, street lighters, &c., and their employer, the municipality) is an
industrial dispute, to define fully 'industrial dispute' - to enumerate even all the characteristics, the
full connotation of an industrial dispute; any more than it is necessary for us to define what is a dog
when we determine that a certain animal is a dog" (1919) 26 CLR, at p 574 . To his Honour, it
seemed, "a great deal of time is wasted and harm done by the premature efforts of Courts to define
exhaustively expressions of common speech" (1919) 26 CLR, at p 574 . (at p256)

4. The majority of the Court in the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 held "that
States, and persons natural or artificial representing States, when parties to industrial disputes in
fact, are subject to Commonwealth legislation under par. (xxxv.) of s. 51 of the Constitution, if such
legislation on its true construction applies to them" (1920) 28 CLR, at p 155 , and then went on to
hold, further, that a dispute between named organizations of employees and the Minister for Trading
Concerns (W.A.) was an "industrial dispute" within the meaning of s. 51 (xxxv.). The dispute to
which the Minister was a party was, it was said, "manifestly and admittedly one which no one
would deny was an 'industrial dispute' if a private person were the employer" (1920) 28 CLR, at p
155 , and it followed, therefore, that the dispute was within par. (xxxv.). (at p256)

5. In reaching their conclusion in the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 the
majority of the Court expressly overruled the Railway Servants' Case [1906] HCA 94; (1906) 4
CLR 488 , but in doing so they did not express any view on the question whether the dispute in that
case was an "industrial dispute". But there can be no room for doubt that if it had been necessary to
pronounce on this question the decision would have been that it was an "industrial dispute". Even if
this does not sufficiently appear by implication from the decision in the Engineers' Case [1920]
HCA 54; (1920) 28 CLR 129 itself it must be taken to have been put beyond doubt by the decision
in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 2)
[1920] HCA 55; (1920) 28 CLR 436 . The argument in this case took place immediately after that in
the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 and the judgment in each case was
delivered on the same day. The effect of the decision was that the dispute which the Commonwealth
Court of Conciliation and Arbitration had found to exist was an "industrial dispute" of which the
Court properly had cognizance and in respect of which it might make an award. The dispute in
question was between the Merchant Service Guild on the one hand and, on the other, "the Sydney
Harbour Trust, the Melbourne Harbour Trust, the Colonial Treasurer of New South Wales in respect
of pilot steamers and tenders thereto and a steam tug at Clarence River, the Minister for Public
Works of New South Wales in respect of vessels conveying workmen to and from dockyards, State
metal quarries, and dredges, ferry services between Newcastle and Stockton and the Chief Secretary
of New South Wales in respect of (the State) trawling industry" (1920) 28 CLR, at pp 454, 455 . If a
dispute as to the conditions upon which these authorities might employ masters, engineers and
officers constituted an industrial dispute then there could be no reason for thinking that a dispute
between the Commissioner for Railways and his employees with respect to conditions of
employment in the service of the Commissioner did not. (at p257)

6. Before the Arbitration Commission the matters with which we are concerned took a somewhat
curious course. The Commission examined the various activities undertaken by the public
authorities previously specified and came to the conclusion that some of them were wholly engaged
in industry. In respect of others, it took the view that some part of their activities constituted
"industry" and that an award might be made prescribing conditions of employment with respect to
members of the organization who were engaged in those activities. In respect of the remainder the
conclusion was reached that their activities were "governmental" and not "industrial" in character
and that their employees were outside the award-making power. The matters now come before us
upon competing applications for mandamus and prohibition. Mandamus is sought by the
Association on the basis that each and every one of these public authorities is engaged in industry
whilst prohibition is sought by a number of the authorities concerned on the basis that disputes
between them and members of the organization as to conditions of employment in their service are
not industrial disputes in the true sense. But, upon the evidence, it is reasonably apparent that the
relationship between each of the public authorities and many, at least, of the employees engaged in
the activities which the former undertake are no less industrial in character than those which were
the subject of examination in the Railway Servants' Case (1906) 4 CLR 488 , the Municipalities'
Case (1919) 26 CLR 508 , the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 and the
Merchant Service Guild's Case (No. 2) [1920] HCA 55; (1920) 28 CLR 436 . One may, therefore,
be disposed to think that the substantive questions now raised are not open. But it is said that two
later decisions have virtually undermined, or, perhaps, displaced, the reasoning upon which the
decisions in the earlier cases rest. The first of these is the Teachers' Case (Federated State School
Teachers' Association of Australia v. State of Victoria [1929] HCA 11; (1929) 41 CLR 569 ) in
which it was held that a dispute as to the conditions upon which State school teachers might be
employed by the respondent was not an industrial dispute within the meaning of par. (xxxv.). In the
second - Victoria v. The Commonwealth [1942] HCA 39; (1942) 66 CLR 488 (the Public Service
Case) - the Court unanimously rejected the contention that the members of the Public Service of the
State of Victoria were engaged in "industry" and that, therefore, a dispute between the organization
which represented them and the State of Victoria concerning the conditions of their employment
was not an industrial dispute within the meaning of the placitum. But these cases do not touch the
present problem. They do not deny the proposition that a State may engage in industry or undertake
industrial activities. They merely decide that neither State school teachers nor State Public Servants,
collectively, are engaged in industry however widely that expression may be understood.
Nevertheless, it was urged that the decisions in the two cases rested ultimately upon a single fact.
The decision in the Teachers' Case [1929] HCA 11; ; (1929) 41 CLR 569 , it was said, rested
exclusively upon the fact that the educational activities of the State did not constitute an industry
and that school teachers were not, therefore, engaged in industry. Likewise, it was said that the basis
of the later case was the in-escapable view that the aggregate activities in which members of the
Public Service were collectively engaged were not industrial in character. But it is erroneous to a
degree to say that considerations of this character must be decisive in every case for the character of
the services which employees are engaged to perform are, as will appear, of considerable
significance. Indeed, this was not lost sight of in the Teachers' Case (1929) 41 CLR 569 as appears
from the joint reasons of Knox C.J. and Gavan Duffy and Starke JJ. There, after disposing of the
contention that the State of Victoria was not, as regards teaching in State schools, engaged in
industry, their Honours proceeded to consider the character of the occupation of the employees
concerned. (at p258)

7. On this point their Honours said: "Looking now at the matter from the point of view of the
teachers, can their occupation be described as an industrial one? Industry includes, by force of s. 4
of the Commonwealth Conciliation and Arbitration Act, 'any calling, service, employment,
handicraft, or industrial occupation or avocation of employees on land or water.' It is engagement in
an occupation, and not employment in the business or industry of the employer that is the feature of
this definition. But even if this be so, the definition cannot enlarge the meaning of the phrase
'industrial dispute' in the Constitution, and the occupation must be of an industrial nature. It was
argued that it is inapplicable in the case of State activities, because industrial dispute means, so far
as the States are concerned, any dispute in relation to employment 'in an industry carried on by or
under the control of . . . a State', etc. (see s. 4). But we need not determine this point, for the
occupation of the State school teachers is not industrial" (1929) 41 CLR, at p 575 . These
observations involved a clear acknowledgment that the character of the occupation of State school
teachers was a matter for consideration in determining whether a dispute as to the conditions of their
employment was an "industrial dispute" in the constitutional sense though they recognized, also,
that, in relation to disputes between States and their employees, the argument was open that the Act,
upon its true construction, applied only to disputes as to conditions of employment in substantive
forms of industry carried on by the State. In my view neither the Teachers' Case [1929] HCA 11;
(1929) 41 CLR 569 nor the Public Service Case [1942] HCA 39; (1942) 66 CLR 488 furnish any
grounds for requiring us to reconsider the earlier cases to which reference has been made. (at p259)

8. The definitions contained in the Act at the time of the Teachers' Case (4) stood in much the same
form as they do now and they are not without difficulties of their own. By s. 4 of the Act an
"industrial dispute" means a dispute as to industrial matters which extends beyond the limits of any
one State and includes (par. (c)) "such a dispute in relation to employment in an industry carried on
by, or under the control of, a State or an authority of a State". "Industrial matters" means "all
matters pertaining to the relations of employers and employees, and . . . includes" a number of
specified subject matters. "Employer" means any employer in any industry and includes any person
who is usually an employer in an industry whilst "employee" means any employee in any industry
and includes any person whose usual occupation is that of employee in any industry. The expression
"industry" is, itself, the subject of definition and the expression includes (a) any business, trade,
manufacture, undertaking or calling of employers; (b) any calling, service, employment, handicraft
or industrial occupation or avocation of employees; and (c) a branch of an industry or a group of
industries. But whatever may be the difficulties created by the unusual interdependence of these
definitions one thing is clear. That is that in the general run of cases an industrial dispute may exist
concerning conditions of employment by an employer who, though not engaged in some substantive
industry of his own, employs members of an organization whose calling, services, employment,
handicraft or occupation is essentially industrial in character. It is, however, asserted that the
provisions of par. (c) of the definition of "industrial dispute" represent an exhaustive statement of
what constitutes such a dispute when the dispute is between an organization of employees and a
State or authority of a State. In such a case, it is contended, an industrial dispute exists only when it
is "in relation to employment in an industry carried on by, or under the control of, a State or an
authority of a State". These words are, of course, the precise words of par. (c) but it is, at least,
doubtful whether, for any practical purposes, the contention has any significance in cases where the
dispute is concerned with the conditions of employment of employees whose occupations are
unequivocally industrial. For instance, it may well be thought that if the State employs bricklayers
for the performance of building construction work it has, to that extent, ventured into the building
"industry". Of course, the conclusion would be otherwise in the case of employees whose
occupations are not industrial in any real sense unless they are employed as part of the labour force
engaged in carrying on some recognizable industrial undertaking. But the argument adduced on
behalf of the authorities concerned denies the proposition involved in the first of these illustrations.
In the first place, it is somewhat boldly asserted that once it is seen that an activity undertaken by a
State, or some authority representing it, is "governmental", there is no room for the conclusion that
it is also "industrial". Alternatively, it is said, that a so-called "governmental" activity cannot be
regarded as industrial unless it can be seen that in engaging in it the State has "entered the market-
place". The difficulty with the first of those propositions is that it does not define what is meant by
"governmental". However, in illustrating its application the assertion is made that any activity
undertaken by a State or State authority is properly so described. It may be conceded at once that in
a sense this is true but to say that it may be so described is no indication of the essential character of
the activity itself, or, of the fundamental distinction between essential functions of government and
other activities in which, for its own legitimate purposes, a State may engage. It is beyond doubt
that the administration of justice is of the former character but is it possible to say that the work of
building court houses is of the same fundamental character? Or, does it follow from the Teachers'
Case [1929] HCA 11; (1929) 41 CLR 569 , as was suggested, that the work of constructing school
buildings is an essential function of government? To my mind only one answer can be given to these
questions. Clearly they are not. Such activities, though undertaken for legitimate governmental
purposes, are clearly industrial in character whether actually undertaken by the State itself or by
contractors on its behalf. Indeed, the fact that the State may arrange for such work to be performed
by outside agencies is, itself, a denial that work of this character is an essential function of
government. (at p261)

9. The alternative proposition must also be rejected as an exhaustive guide to the circumstances in
which a State may have industrial relations, and "industrial disputes", with its employees. Once it is
seen that "governmental" purposes may be served by the undertaking of industrial activities or by
the employment of labour in essentially industrial occupations, the proposed test appears as far too
narrow. For the reasons already given it seems to me that employees of a State are employed in
industries carried on by the State when, whatever their particular callings or occupations, they are
employed as part of the labour force engaged in some substantive form of industry upon which the
State has embarked or, failing the recognition of some such form of industry, when employees
whose callings or occupations are essentially industrial are employed by the State to perform or
discharge the ordinary duties of their callings or occupations. Such a conclusion is, in my view, in
accordance with the long trend of authority and consonant with the definitions to be found in the
Act. (at p261)

10. Not the least of the remaining difficulties in the case results from the form of the log by which
the organization made its claims. Some of the problems arising from this source have already been
dealt with by the Court and these may be passed over (Reg. v. The Association of Professional
Engineers of Australia; Ex parte Victoria [1957] HCA 95; (1957) 100 CLR 155 ). But it is now
contended that the log was incapable of giving rise to a dispute which is truly an "industrial
dispute". The basis for this contention is found in the fact that the log claims on behalf of all
members of the organization and "all other Professional Engineers eligible for membership of The
Association of Professional Engineers, Australia," minimum rates of remuneration for all forms of
employment involving "the performance of Professional Engineering Duties". "Professional
Engineering Duties" mean, according to the log, "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" and
the minimum rates claimed vary as between "Qualified Engineers" and "Chartered Engineers" as
defined. With these provisions of the log in mind it is asserted that the dispute created by the
rejection of the log is outside the "industrial" field. The claims made, it is said, are neither made
with respect to employment in industry nor with respect to employment of an essentially industrial
character but, on the contrary, with respect to the employment of professional engineers in whatever
duties they may be called upon to perform in any kind of employment. There may be much to be
said for the proposition that, literally, this is what the log does but, in my view, this vital question
cannot be resolved merely by a literal construction of the provisions of the log. The problem is a
practical one and cannot be dissociated from the general character of the duties of an employee who
is employed as an engineer or from a consideration of what the log must, in the circumstances, have
been taken to convey to those employers upon whom it was served. (at p262)

11. In the present proceedings the employers concerned are the public authorities already specified
and it is desirable at this stage to make some reference to the character of the duties which engineers
in their employ are called upon to perform and to indicate the views taken by the Arbitration
Commission with respect to the extent of their award-making power. (at p262)

12. Department of Public Works: According to the findings of the Commission this Department is a
constructing authority which annually expends large sums of money and employs a very large
labour force. It employs professional engineers on preliminary investigations, design, construction,
operation and maintenance in connexion with its general constructional activities. Included among
its activities is the conduct of the State Dockyard and the State Brickworks. In the view of the
Commission, these two undertakings engage in "trading activities" and, in effect, it was held that
disputes as to the conditions upon which professional engineers might be employed in relation to
them are "industrial". However, the Commission considered that the general constructional activities
of the Department were "governmental" and, therefore, not "industrial". So far as this Department is
concerned the organization now seeks mandamus in so far as the Commission has declined
jurisdiction to make an award with respect to professional engineers employed in its general
constructional activities. For the reasons already given the Commission was in error in holding that
engineers engaged in these general constructional activities are not engaged in "industry"; a dispute
as to their conditions of employment is clearly an industrial dispute and, as such, is within the
cognizance of the Commission. (at p263)

13. Water Conservation and Irrigation Commission: Professional engineers employed by this
authority appear to perform, in the main, duties with respect to construction and maintenance which
is industrial in every sense of the word. But the Arbitration Commission regarded the general
activities of this Authority as falling into the same category as the general constructional activities
of the Department of Public Works. Accordingly, it declined jurisdiction except with respect to
professional engineers employed "in or in immediate relation to the supply and sale of water". This
activity the Arbitration Commission considered to be a trading activity and, therefore, engineers
employed in relation to it were "industrially" employed. In my view, no such distinction can be
drawn. The general engineering and constructional activities of this authority are also industrial and
a dispute as to the conditions of employment of engineers employed in relation thereto is an
"industrial dispute" within the meaning of the Act. (at p263)

14. Department of Main Roads: The Arbitration Commission was of the opinion that this
Department was in the "same general position" as the Department of Public Works and that its
professional engineers are not engaged in industry. But when it is seen that its engineers are engaged
in the general engineering work of road and bridge construction and maintenance there is no room
for holding that a dispute as to the conditions of their employment is not an "industrial dispute". (at
p263)

15. With respect to five of the named authorities the Arbitration Commission held that disputes
between them and the organization were "industrial disputes" and that it had power to make an
award with respect to the conditions upon which professional engineers might be employed by
them. These authorities are: (at p263)

16. The Housing Commission of New South Wales: This authority, it is said, buys land, builds
homes and sells or lets them to members of the public. It was said that it engaged in trading and
carried on its activities as a commercial undertaking. In these circumstances the Commission
considered that engineers employed by the Housing Commission for the purpose of carrying on its
building activities were industrially employed. (at p264)

17. Forestry Commission: The Arbitration Commission took the view that this authority is engaged
in "trading". It pointed out that during the year ended 30th June 1956 this authority effected sales of
timber to the value of approximately two million pounds and that, according to the evidence, the
professional engineers employed by it were "engaged mainly in the construction of roads through
forests from which timber is being taken and that this construction work facilitates the sale of timber
and its transport". Accordingly, it was of the opinion that a dispute as to the conditions upon which
these engineers were employed constituted an industrial dispute. (at p264)

18. The Maritime Services Board: For the purpose of dealing with this authority the Arbitration
Commission assumed that its powers, functions and activities are substantially the same as those of
its predecessor - The Sydney Harbour Trust - and, it held, on the authority of the Merchant Service
Guild's Case (No. 2) [1920] HCA 55; (1920) 28 CLR 436 , that it was engaged in industry and that
the claims of its professional engineers were within the award-making power. (at p264)

19. Electricity Commission of New South Wales: The Arbitration Commission was of the opinion
that this Authority was engaged in trading and that its professional engineers were engaged in
industry. (at p264)

20. Sydney City Council: Upon earlier authority the Commission felt "constrained to hold that
professional engineers employed as such" by this authority fell within the jurisdiction of the
Commission. (at p264)

21. Prohibition was sought in respect of so much of the dispute, or disputes, as affected these five
named authorities but for the reasons already given it seems clear that a dispute between them and
the organization concerning the terms upon which, for the purposes of their activities, they might
employ members of the organization is an industrial dispute in the true sense. (at p264)

22. Metropolitan Water Sewerage and Drainage Board and the Hunter District Water Board: The
Arbitration Commission was of the opinion that these authorities were in the same general position
as the Department of Public Works and that their professional engineers are not engaged in industry.
Its view on this point seems to have been influenced to some extent by the fact that these authorities
do not sell water but obtain their revenue from rates imposed by law. In my view, this circumstance
is of no significance. It is impossible to read the evidence concerning the activities of these
authorities without coming to the conclusion that they are extensively occupied with industrial
undertakings and the members of the organization employed by them are employed in "industry".
(at p265)

23. These are but brief references to the functions of the various authorities concerned but sufficient
has been said to indicate that the general work of professional engineers employed as such by them
is truly industrial and to show that, subject to one qualification, the logs appear to make claims only
with respect to the conditions of employment of engineers who were employed in industrial
activities. The qualification which I wish to make is that it is possible, though it does not appear,
that some engineers are employed only in consultative work in relation to general matters of policy.
Engineers so employed are, of course, not employed industrially and no award can be made with
respect to their conditions of employment. But even if some are so employed the fact that the logs
made claims wide enough, literally, to refer to their conditions of employment does not mean that
the rejection of the logs was not capable of giving rise to industrial disputes concerning the
conditions of employment of the general body of employees concerned. In essence, these disputes
were industrial disputes, and the fact that there might have been some professional engineers
employed in work which was not "industrial" was not sufficient to deny them this character. The
substantial objection which was taken was that most, if not all, of the engineers who are employed
by these authorities were employed in "governmental" and, therefore, not "industrial" activities and
once this objection is disposed of there are no substantial grounds for thinking that the dispute is not
within the cognizance of the Arbitration Commission. (at p265)

24. For these reasons, it seems to me, prohibition to restrain the Arbitration Commission from
proceeding with the hearing and determination of the dispute, or disputes, should be refused and
mandamus granted on the ground that the Commission has erroneously declined jurisdiction with
respect to some aspects of the dispute. (at p265)

WINDEYER J. The fundamental question in this case is whether the Commonwealth Arbitration
Commission can, by an award binding upon a State and its agencies, regulate the condition of
service of professional engineers employed in engineering tasks in the construction or maintenance
of State works or in the conduct of public utilities controlled by a State. Those who contend that the
Commission has no power to make such an award contend in substance that professional engineers
so employed by a State or its agencies are not employed in industry; and therefore that they, or the
Association of Professional Engineers as representing them, cannot be, or become, engaged in an
industrial dispute; that they are therefore beyond the reach of the constitutional power under s. 51
(xxxv.). (at p266)

2. The claim as formulated in the log is that all professional engineers employed as such by any
person anywhere in Australia should be paid salaries at the rates specified. What in terms is sought
is, therefore, that the Commission should fix a general scale of remuneration and the conditions of
employment for all professionally qualified engineers. The claim purports to be made by the
Association on behalf of its members and all other professional engineers eligible for membership.
Those eligible for membership are stated to be persons who have certain university degrees or
similar qualifications and who are employed "in or in connexion with the industry of engineering".
This description seems to me inapt according to the ordinary use of words. There is an engineering
industry properly so called. It comprises various business and undertakings in connexion with which
engineers, mechanics and others exercise their skills and callings. But "the industry of engineering"
seems an inappropriate description of the occupation of engineers, as this Court said in
Amalgamated Society of Engineers v. Australasian Institute of Marine Engineers [1909] HCA 41;
(1909) 9 CLR 48 and see Federated Engine-Drivers and Firemen's Association of Australasia v.
Broken Hill Pty. Co. Ltd. [1911] HCA 31; ; (1911) 12 CLR 398 . An alteration of the definition of
"industry" in the Commonwealth Conciliation and Arbitration Act, made after the latter case, has
rendered those decisions no longer applicable in the construction of the Act. Since 1911 it has been
permissible, for the purposes of the Act, to describe as industries the trades, crafts and callings of
employees as well as the enterprises in which they pursue them. So that in the construction and
administration of the Act (including s. 70) such descriptions as, for example, "the industry of
engineering" or the barbarous "Local Government, Municipal and Statutory Corporations Industry"
have become part of the jargon of industrial law, although sometimes "meaningless in ordinary
language" (Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of
Australia [1944] HCA 7; (1944) 68 CLR 628, at p 634 ). The vocabulary thus engendered may be
useful, even necessary, for the exercise of arbitral jurisdiction under the constitutional power; but it
cannot be used to determine the scope of that power or to enlarge the meaning of the expression
"industrial disputes" in the Constitution. (at p267)

3. Expressions such as "the banking industry" or "the insurance industry" are not really a proper use
of words; and the use of such expressions in industrial law does not justify propositions such as
"banking is an industry" to be used as major premises in arguments. In the course of the argument in
this case the Chief Justice said that the ordinary meaning of terms has shifted over the years and
asked: "is it not quite inappropriate to speak of the banking industry?" With this I respectfully agree.
We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they
denoted in 1900. The denotation of words becomes enlarged as new things falling within their
connotations come into existence or become known. But in the interpretation of the Constitution the
connotation or connotations of its words should remain constant. We are not to give words a
meaning different from any meaning which they could have borne in 1900. Law is to be
accommodated to changing facts. It is not to be changed as language changes. The word "industry"
has suffered, as words do, by the attrition of usage and from snobbery and the desire for genteelism,
so that now we hear for example of the hire-purchase industry - "trade" or "business" would not
suffice - the racing industry, and even the betting industry. Correctly used the word "industry",
however, still has a variety of meanings. Sometimes it is used in association with, and without any
sure distinction from "trade" and "commerce". In one sense it denotes activities other than
agriculture; in another it comprehends agriculture. Sometimes it is used to denote private enterprises
carried on by private capital for profit; but often it includes "nationalized" industries. It ordinarily
carries a concept of work directly concerned with the production, maintenance, repair, distribution
or transport of tangible things and also with the provision of intangible things such as gas and
electricity. It is this sense that I think is involved in the expression "industrial dispute" in par.
(xxxv.). In Australian industrial law persons employed in banking and insurance businesses can be
parties to an industrial dispute (Australian Insurance Staffs' Federation v. The Accident
Underwriters' Association [1923] HCA 61; (1923) 33 CLR 517 ). But this, I think, must now be
taken to be because their activities have a direct connexion with industrial operations in the more
ordinary sense of the term. They are an adjunct of industry. It was at one time considered that any
dispute between employers and employees in any type of undertaking was within the constitutional
power. But in the Teachers' Case [1929] HCA 11; (1929) 41 CLR 569 this view was rejected as too
wide; and we should, I have no doubt, follow this later opinion. (at p268)

4. The dispute here is a "paper dispute". To permit the creation of a malady so that a particular
brand of physic may be administered must still seem to some people a strange way to cure the ills
and ensure the health of the body politic. But the expansive expositions by this Court of the meaning
and effect of par. (xxxv.), especially in the Burwood Cinema Case [1925] HCA 7; (1925) 35 CLR
528 and in Amalgamated Engineering Union v. Metal Trades Employers' Association [1935] HCA
61[1935] HCA 61; ; (1935) 53 CLR 658 have brought a great part of the Australian economy
directly or indirectly within the reach of Commonwealth industrial law and of the jurisdiction of the
Commonwealth industrial tribunal. The artificial creation of a dispute has become the first
procedural step in invoking its award-making power. Nevertheless, the tribunal cannot follow the
course which courts not fettered by statute have followed in the past, and enlarge its jurisdiction by
the simple process of allowing all persons who would invoke it to do so by making fictitious but
unchallengeable assertions. It is not possible by fictions to transgress the boundaries of the
Constitution. A dispute may be a paper dispute. It must still be a real dispute, really extending
beyond the boundaries of any one State. That condition, we must assume, has been satisfied in this
case according to the accepted doctrine of this Court. But is this dispute an industrial dispute? That
is the question here. And the Association of Professional Engineers only begs the question by
describing its members as all engaged in the industry of engineering. (at p268)

5. It seems to me unnecessary to attempt any exhaustive definition of the expression "industrial
dispute" or to examine in detail all the definitions or explanations of it which have been offered in
the judgments in earlier cases. Those judgments are to be read in relation to the circumstances of
each case and to the arguments which were then adduced. Some judgments are couched in terms of
economic theory, some in sentences clearly intended to be rhetorical rather than exact. Some of the
attempted definitions are inconsistent with others. Some have been deliberately discarded in later
decisions. To select passages from them and to subject their words to detailed analysis as if they
provided a definitive exegesis of par. (xxxv.) can be most misleading. (at p268)

6. Whatever other activities may, for the purposes of par. (xxxv.), be properly described as
"industrial", the term ordinarily includes manual labour - which is prima facie industrial - and the
direction, superintendence and management of such labour and the working, direction and
management of machinery and plant used in connexion with the production or distribution of
material things. We need not explore the horizon if the thing we are concerned with lies well within
it. To quote Higgins J.: "It is not necessary for us, in order to determine whether this dispute . . . is
an industrial dispute, to define fully 'industrial dispute' - to enumerate even all the characteristics,
the full connotation of an industrial dispute; any more than it is necessary for us to define what is a
dog when we determine that a certain animal is a dog. To my mind, a great deal of time is wasted
and harm done by the premature efforts of Courts to define exhaustively expressions of common
speech" (1919) 26 CLR, at p 574 . The work of professional engineers engaged upon constructional
work in projects such as were described in the evidence in these proceedings, is, in my view, clearly
an industrial employment. And so is the work of engineers employed for the maintenance and
continuous functioning of undertakings and facilities concerned with production and distribution of
material things and with the supply of gas, water and electricity. This is not the less so because these
engineers are by virtue of their education properly said to be members of a profession. They are still
engaged in industry. But all professional engineers are not engaged in industrial activity. Some
engineers employed by the States and by the State bodies which are parties to these proceedings
may be engaged upon work not of an industrial character. Their duties may, for example, be directly
related to the determination of policy and only indirectly and remotely connected with the
translation of policy decisions into industrial activity. But that does not mean that the dispute is not
an industrial dispute or that this Court should prohibit the Commission from dealing with it. It
means only that the claim that all the persons whom the Association is said to represent are
industrially employed may be too wide. But the Commission when dealing with a dispute does not
have simply to accept or reject the log of claims out of which the dispute arose. That the log, in so
far as it seeks a general scale of salaries for professional engineers, asks more than the Commission
could properly award does not mean that the Commission should not be permitted to make a proper
award. The duties of some professional engineers have only a remote and indirect relationship with
industrial activities. It would not be proper for the Commission to regulate their conditions. But this
is a matter for the Commission to sort out, not a ground for denying it jurisdiction to do so. The
manner in which Mr. Commissioner Portus approached the question seems to me, generally
speaking, correct. (at p270)

7. In my view, the dispute is thus within, and well within, the ambit of constitutional power. A
further question argued was whether the Conciliation and Arbitration Act 1904-1958 confers power
on the Commission to entertain the matter. It was argued - and the argument was stated in an
attractively succinct way by Mr. Wilson for the State of Western Australia - that the Parliament had
not exhaustively exercised its powers under par. (xxxv.); and that in cases where a State or a State
authority is the employer Parliament had conferred jurisdiction upon the Commission only when the
State or authority is carrying on an industry in the sense of a single organic commercial undertaking.
The form of the definitions in the Act gives some scope for the contention, difficult though it would
be to apply in practice the distinction said to arise. Nevertheless I do not think the restricted
construction contended for is correct. The purposes of the relevant provisions of the Act when read
together is, I think, to bring within the jurisdiction of the Commission all industrial disputes with
which it can be constitutionally empowered by Parliament to deal, including disputes arising
between the States and their organs and agencies as employers and persons industrially employed by
them. I have had the advantage of reading the judgment of the Chief Justice and need only say that I
agree in his conclusions as to the effect of the statutory definitions. (at p270)

8. That suffices to dispose of the case. But it was elaborately argued and the ground taken by the
States raised an important question, on which I will therefore add some comments. After listening to
the argument, and later reading the transcript of it and the judgments in other cases which were so
carefully canvassed, one comes back, with some relief, to the statement in the majority judgment of
the Teachers' Case [1929] HCA 11; (1929) 41 CLR 569 that "the Constitution is not a thesis upon
economics. It is an instrument of Government dealing, in s. 51, par. (xxxv.), with a subject matter -
industrial disputes - in the ordinary and popular acceptation of that term" (1929) 41 CLR, at p 574 .
It was urged on behalf of the States that, to determine whether an employee was in industrial
employment, attention should be concentrated upon the enterprise or undertaking of the employer
rather than the activity of the employee. I have already said that it is sometimes inappropriate to
describe a craft or calling as an industry. But this does not mean that the nature of the work actually
performed by particular employees is not to be regarded in seeing whether a dispute between them
and their employers is an industrial dispute. What, to my mind, has to be considered is the nature of
the employee's work and the total setting in which it is performed. A trade or calling may be prima
facie an industrial occupation without those who follow or profess it being always industrially
employed. For example, shearing is prima facie an industrial occupation; but a shearer engaged to
demonstrate his art to classes of agricultural students is prima facie not industrially employed. On
the other hand, work indistinguishable from ordinary industrial activity may be done by persons
who could not properly be described as industrially employed, for the simple reason that they have a
character which puts them outside the sphere of industry. The example most relevant to the present
case is that of an army officer in the Corps of Engineers or in the Corps of Electrical and
Mechanical Engineers. He is a professionally qualified engineer. His peace-time work may be of a
civil engineering and constructional character, or he may be engaged in supervising the electrical
and mechanical maintenance and repair of, say, motor vehicles - activities which in themselves
differ in no way from similar activities in what may conveniently, for this purpose, be called private
industry. Yet soldiers, whatever their duties, can never properly be said to be employed in industry.
A mutiny can never become an industrial dispute by miscalling it a strike. This is not because, as
was put in argument, soldiers are not employees. They are. Persons in military employment are in
ordinary language, and sometimes for legal purposes, described as employed, although their
engagements are not ordinary contracts of service. It is simply that service in the naval, military or
air services "would not normally be classed as giving rise to a trade dispute or included in trade or
industry" (per Lord Porter in National Association of Local Government Officers v. Bolton
Corporation (1943) AC 166, at p 192 ). Similarly, service in the police force cannot, in my view,
lead to an industrial dispute. And this Court has held that school teachers employed in the education
service of a State cannot be parties to an industrial dispute. In some States certain occupations
which are not industrial may be regulated by the State industrial tribunals. That however is because
State legislatures can, if they wish, make the machinery of their industrial law available for the
regulation of employment which is not strictly industrial; and, if they choose to, they can do this by
statutory definitions twisting the ordinary meaning of words. But the Commonwealth Parliament
cannot take liberties with the language in which its powers are expressed. (at p272)

9. Counsel for the States started with the proposition that disputes are either industrial or not
industrial. That is logically incontestable; and, as was said by counsel in Repton v. Hodgson [1850]
EngR 735; (1850) 3 HLC 72, at pp 79, 80 (10 ER 28, at p 31) in a sentence which Jordan C.J.
brought to light in an essay, "Like Sinclair's well-known division of sleeping into two sorts, namely,
sleeping with or sleeping without a nightcap, it would seem to exhaust the subject". But the presence
or absence of the quality "industrial" in a dispute is not as indisputably apparent as the presence or
absence of a nightcap on a sleeper. And to collect a miscellany of diverse elements referred to in
different judgments as characteristics of industrialism, and treat them all as either collectively or
individually significant, so that the presence or absence of one may be decisive is, in my view,
fallacious. It can lead to a sophistic sorites. It was, however, contended that these difficulties were
surmounted by treating the occupation of the employer as the cardinal factor. Then it was said that,
as government is not industry, a complete antithesis exists between activities which are
governmental and those which are industrial. Our task it was then suggested was, in counsel's
words, to see in each case "whether the particular activity can truly be said to be governmental or
industrial". Thus, instead of being asked to say whether a particular project, enterprise or
undertaking in which engineers were employed was by reason of its nature one in which an
industrial dispute could occur, we were asked to consider whether it was or was not a governmental
project, enterprise or undertaking. What for the purposes of this argument was meant by
"governmental" was stated only in broad generalities such as "government organization for solving a
communal problem", and whether as a way of dealing with "a communal need" it was "akin to the
ordinary departments of state". It was also said that whether any activity was industrial or
governmental was to be determined by seeing whether it was "more akin to the type-specimen
government or the type-specimen industry". This last phraseology was apparently derived from
remarks of Latham C.J. in his judgment in the Victorian Public Servants' Case (1942) 66 CLR, at p
501 . It may, no doubt, sometimes be helpful, to adopt for the social sciences this method of
classification, familiar in natural history; but it can only be satisfactory if the type-specimens with
which comparisons are to be made are postulated, and their relevant attributes so ascertained that in
making comparisons propria can be distinguished from accidentia. If not, the result is a mere
logomachy. But the dialectical difficulties of following the path suggested can, I think, be
disregarded, for the simple reason that it seems to me that here it is the wrong path. The question is
not to be solved by asking is a particular activity governmental; because, for the matter in hand, the
assumed complete antithesis between industrial and governmental activities does not exist. That a
particular activity is carried on by government, is ordinarily considered as inseparable from
government and could not be carried on by private enterprise in a society organized as ours is - as,
for example, taxation, registration of lands titles, the administration of justice, police - is a vital
circumstance to be considered in determining whether persons connected with such an activity could
ever properly be said to be parties to an industrial dispute. But to say that an activity is
governmental does not determine that it is not industrial in the relevant sense of that word. It was
sought to overcome this by a change of words - in effect, by a new proposition, namely, that a
public utility cannot be an industry. What exactly was meant by public utility I am not sure. It is,
however, not without interest that Chambers Encyclopedia (New Edition 1950) says under the
heading of "Public Utility" that "it is a term difficult to define", and, inter alia, that "the concept
now extends to publicly owned industries". It was argued that one would not ordinarily say of, for
example, a government water supply that the government was "running an industry". Possibly not.
Certainly a person asked to list the principal industries of a country would not ordinarily include
among them the supply by the government of electricity or water to the inhabitants. But that again is
only because "industry" has more than one meaning. An ambiguous middle term can lead to a
seductive fallacy. An accident to a worker at a government power-house or waterworks would be
properly called an industrial accident; and a strike of workers employed at a power-house or in the
construction of a hydro-electric system or a water reservoir would surely ordinarily be called an
industrial dispute? The States' argument drove them to contend that workers in, at all events some,
nationalized industries - electricity supply was given as an illustration - were incapable of being
disputants in an industrial dispute. Yet they had to concede that immediately before the particular
undertaking was taken over by the State, the same workers had been engaged in industry. If at the
actual time of the take-over a dispute was in progress at the works it would apparently have begun
as an industrial dispute but become translated. This and other extravagant illustrations only expose
the fundamental fallacy. A nationalized industry is clearly a government undertaking, but it is still
an industry. (at p274)

10. The States relied strongly on the decision in the Teachers' Case [1929] HCA 11; (1929) 41 CLR
569 and sought from it to extract support for the proposition that government engineers are outside
the field of industry and industrial disputes because their employer is the Crown. I do not think that,
properly understood, that case yielded what was sought to be got from it. What the majority
judgments there established was that teaching is prima facie not an industrial activity; and that
teachers in the State schools are not engaged in industry. That I would have thought was beyond
doubt. But I can see nothing in the judgments to aid the proposition that all forms of employment
under government are outside the realm of industry. Counsel referred also to the recognition, by
Isaacs J. in particular, in other judgments that certain of the more important and ancient functions of
government are not of an industrial character and that therefore State servants engaged in them
could not be brought within the reach of the Commonwealth industrial tribunals. These statements
by Isaacs J. that the Commonwealth industrial power could not be used to trammel the States in the
essential functions of government were merely qualifications of his assertion of the wide scope of
that power. And they were first made when the doctrine of the immunity of State instrumentalities
was being overthrown and the States and their servants industrially employed were being made
subject to the Commonwealth industrial law. As convenient descriptions of non-industrial
governmental functions of the States he referred to "regal functions" and adopted the phrase "the
primary and inalienable functions of government". But these phrases, however expressive of an
idea, have no precise legal meaning. It is thus not helpful to ask of any activity of the State "is it a
regal, or an inalienable, function?" Blackstones Commentaries, Chitty's Prerogatives and the article
on "Constitutional Law" in the last edition of Halsbury's Laws of England would give markedly
different pictures of regal functions, in the sense of activities undertaken by the Crown and directed
by the Queen's Ministers of State, whether by virtue of the prerogative or by authority of statute.
And, as for the "inalienable" functions - usually taken to be such matters as the maintenance of
order and the administration of justice - here too there is no precision. The functions which
government in fact undertakes vary with the time in history and the country concerned and the
nature of its polity. If what is meant is what should be the functions of government and the sphere of
the state, the answer will reflect political philosophy current at a particular time or an individual
predilection. Disciples of Herbert Spencer and of Karl Marx would give very different answers. The
maintenance of the Post-Office is to-day an established function of government in most countries;
and the Postmaster-General is, in Britain and Australia, a Minister. But before the reign of Charles I,
the provision of postal services was not a function of government in Britain. To use modern, but
now hackneyed language, the government then "entered the market place" when it undertook the
carriage of letters. Yet in 1857 the Post-Office was for rating purposes taken to be in exactly the
same position as the great Departments of State. Its functions were governmental - regal. (Smith v.
Guardians of Birmingham (1857) [1857] EngR 424; 7 El & Bl 483 (119 ER 1326) , Coomber v.
Justices of Berks (1883) 9 App Cas 61, at p 73 ). In 1911, however, an English writer could still say
that "the post office and the coinage are as yet our only nationalized industries" (MacGregor, The
Evolution of Industry, p. 210). He was referring to the industrial undertakings of the central
government as distinct from those of local authorities. (at p275)

11. I cannot see any ground for saying that, in law, any one activity which government undertakes is
really any more a true function of government than any other. No fixed criteria for the application of
the assumed distinction have been formulated. And it has no firm historical foundation. It is a
reflection of political philosophies which may influence men's attitudes to social and economic
questions, but which ought not to determine law. This is not to say that there is not a difference
between the industrial and trading activities of government and its other activities. There is, and it is
fundamental to this case. The fallacy lies in supposing that this difference can in some way to be
made to correspond with a distinction between functions which are properly or essentially
governmental and those which are not. For lawyers this error has its origin in a misapplication of the
eloquent language of Lord Blackburn in Coomber v. Justices of Berks (1883) 9 App Cas 61 and his
opinion in Mersey Docks and Harbour Board Trustees [1865] EngR 610; (1865) 11 HLC 443 (11
ER 1405) . But that the distinction is unreal was well brought out by Latham C.J. in an important
passage in his judgment in the Uniform Tax Case [1942] HCA 14; (1942) 65 CLR 373, at p 423 .
With it may be put the judgments in New York v. United States [1946] USSC 13[1946] USSC 13; ;
(1946) 326 US 572 (90 Law Ed 326) . To quote only from Frankfurter J.: "To rest the federal taxing
power on what is 'normally' conducted by private enterprise in contradiction to the 'usual'
governmental functions is too shifting a basis for determining constitutional power and too
entangled in expediency to serve as a dependable legal criterion. The essential nature of the problem
cannot be hidden by an attempt to separate manifestations of indivisible governmental powers"
(1946) 326 US, at p 580 (90 Law Ed, at p 333) . The essential problem here is simply whether the
engineers in question can be properly said to be engaged in an industrial dispute with their
employers. Enquiries as to the essential functions of government are unproductive in the abstract
and irrelevant to this issue. Government, directly or by its corporate agencies has in modern times
undertaken much that was previously left to be done by private enterprise, or which was not
previously done at all; and government has to a greater or lesser degree controlled, in the interest of
the public or as a matter of government policy, many forms of private industry. Some old concepts
of public law are in difficulties to keep their places in this new world. The question whether or not
particular public corporations enjoy the immunities of the Crown illustrates the problem in one
field. In another there are the difficulties attending the immunity from suit of foreign public ships,
when today so many sovereign states own trading vessels. (at p276)

12. We heard some muffled echoes of old arguments. But we cannot open our ears to them.
Doctrines discarded by the decision in the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129
cannot be revived to defeat the claim of these latter-day engineers. The effect of the Engineers' Case
[1920] HCA 54; (1920) 28 CLR 129 in relation to some of these matters has been stated by Dixon
J., as he then was, in West v. Commissioner of Taxation (N.S.W.) [1937] HCA 26[1937] HCA 26; ;
(1937) 56 CLR 657, at p 681 and in the Essendon Corporation Case [1947] HCA 15; (1947) 74
CLR 1, at pp 19-22 . There is nothing in these cases or in the Victorian Public Servants' Case [1942]
HCA 39; (1942) 66 CLR 488 which, as I read the judgments, curtails in any way the rule that the
power under par. (xxxv.) applies to industrial disputes to which a State is a party. (at p276)

13. Something was sought to be made of the special circumstances of government employment. But
this, so far as it is relevant, is a matter for the Commission to consider. I have already said that the
log of claims here seems to assume that the Commission could simply enact a scale of salaries
applicable for different grades of engineers wherever employed and that this is a misconception. In
making an award the Commission might, I would assume, take into consideration that some
engineers are members of permanent government services and have rights in respect of seniority,
promotion, superannuation and so forth, while others are employed under very different conditions.
(at p277)

14. Support for the main argument of the States was said to be found not only in the Teachers' Case
[1929] HCA 11; (1929) 41 CLR 569 but also in the Victorian Public Servants' Case [1942] HCA 39;
(1942) 66 CLR 488 . This and Pidoto's Case [1943] HCA 37; (1943) 68 CLR 87 , which was also
referred to, were wartime cases. They turned on the extent of the defence power. The circumstances
which led to the Public Servants' Case (1942) [1942] HCA 39; 66 CLR 488 were unusual - one
hopes so at all events, for reading of them is not inspiring. The first Tuesday in November
(Melbourne Cup day) had ordinarily been a public holiday in Victoria, and so too had the last
Thursday in September (Show Day). They were not proclaimed as holidays in 1942, and State
public servants were required to work on those and other days which in peacetime would have been
holidays for them. The Commonwealth Government, however, sought by regulation to compel the
State of Victoria to give them extra pay for working on holidays. It was said - one hopes erroneously
- that failure to provide this would have been likely to have led to industrial unrest. The case turned
upon the validity of those Regulations and on their interpretation and effect. The expression
"industrial dispute" and "industrial matter" occurred in them, with the same meaning as in the
Commonwealth Conciliation and Arbitration Act. The meaning of these expressions when used in
relation to government employment is therefore discussed in the judgments. But the episode leaves
an unhappy picture of what was happening in Australia in the middle of the war; and the simple and
robust answer to the whole matter was, I venture to think, that given by Starke J. that the
Regulations were invalid because: "they have nothing to do with the public safety and defence of the
Commonwealth" (1942) 66 CLR, at p 515 , and were subversive of the States. I would respectfully
adhere to all that Starke J. said in the last two paragraphs of his judgment. In other judgments in the
case there is instructive discussion of general principles. But neither that case nor Pidoto's Case
[1943] HCA 37; (1943) 68 CLR 87 is, in my view, directly helpful for the determination of this
case. (at p277)

15. One comes back to the expression "industrial disputes". The words are plain, if imprecise, and
from them and the facts of the case I think it plainly follows that the orders nisi for prohibition
should be discharged and an appropriate order for mandamus made. (at p277)

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.

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