Opinion Number. 1103

Subject

PUBLIC SERVICE ARBITRATION WHETHER NORTHERN TERRITORY PUBLIC SERVANTS MUST JOIN ONE REGISTERED ASSOCIATION: JURISDICTION OF COMMONWEALTH COURT OF CONCILIATION AND ARBITRATION OVER PUBLIC SERVANTS: CROWN NOT BOUND BY STATUTES UNLESS NAMED

Key Legislation

COMMONWEALTH CONCILIATION AND ARBITRATION ACT 1904, ss. 4, 19: ARBITRATION (PUBLIC SERVICE) ACT 1911: ARBITRATION (PUBLIC SERVICE) ACT 1920, ss. 3, 4, 11: PUBLIC SERVICE ORDINANCE 1913 (NT.)

Date
Client
The Secretary, Department of Home and Territories

The Secretary, Home and Territories Department, forwards the following memorandum for advice:

The following telegram has been received from the Administrator of the Northern Territory, Darwin:

Steps being taken here by Public Service form organisation for registration under provisions of Public Service Arbitration Act. In view of resolution carried by meeting glad you obtain Crown Law opinion as to definition of Public Service of Northern Territory. Does Act include all Administrative, Professional, Clerical and General Officers in meaning of Public Service Ordinance of Northern Territory as well as hotel employees, carpenters, painters and other artisans employed in Government Departments? Must all above join one association or can each section form separate association?

Please state if all Government employees whether Professional, Clerical, General or artisan are in event of registered association not being formed open go to Arbitration Court or is it compulsory for them to approach Arbitrator as laid down by Public Service Arbitration Act?

Glad early reply view Minister's arrival.

(2) I shall be glad to be favoured with early advice on the points raised in the Administrator's telegram.

Advice is desired upon three questions:

The first question is whether the Arbitration (Public Service) Act includes all Administrative, Professional, Clerical and General officers within the meaning of the Public Service Ordinance of the Northern Territory as well as hotel employees, carpenters, painters and other artisans employed in Government Departments. The Arbitration (Public Service) Act 1920 defines 'The Public Service' as follows:

'The Public Service' includes the Public Service of the Northern Territory and of the Territory for the Seat of Government, and the service of any public institution or authority of the Commonwealth, and includes all persons employed in any such service in any capacity, whether permanently or temporarily, and whether under the Commonwealth Public Service Act 1902-1918 or not, but does not include persons employed in the Naval or Military Forces only.

This definition makes it clear, I think, that the Act is intended to apply to all the persons mentioned.

The next question is: Must all these persons join one association or can each section form a separate association? Section 4 of the Arbitration (Public Service) Act reads as follows:

Employees in the Public Service, or in any division, class, grade or branch thereof, or in any calling, service, handicraft, occupation, or avocation in the Public Service, or in any division, class, grade, or branch thereof, shall be deemed to be employees in an industry within the meaning of the Commonwealth Conciliation and Arbitration Act 1904-1918.

This section clearly contemplates the formation of one association for the whole Service or the formation of associations composed respectively of officers employed in the different divisions, classes, grades or branches of the Public Service or the formation of associations composed of persons engaged in the same calling, service, handicraft, occupation, or avocation.

The third question is whether all Government employees whether Professional, Clerical, General or artisans are in the event of a registered association not being formed open to go to the Arbitration Court or is it compulsory for them to approach the Arbitrator as laid down in the Arbitration (Public Service) Act. To answer this question it is necessary to consider the history and scope of the various Acts dealing with the matter. The Commonwealth Conciliation and Arbitration Act 1904-1920 established the Court of Conciliation and Arbitration and made provision for the registration of associations of employees and the submission of claims to the Court by the employees in any industry through their registered association.

The Court has cognisance of certain industrial disputes (section 19). 'Industrial dispute' is defined as including 'any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State, or any public authority constituted under the Commonwealth or a State' (section 4).

The Act therefore applies to the Commonwealth so far as it is engaged in any industry, but I do not think that these words would cover ordinary services of government, and under the rule of interpretation that the Crown is not bound by a statute unless named in it it would appear that the Act was not intended to apply to the Commonwealth in relation to its public servants engaged in carrying on the services of government.

This contention is strengthened by the fact that in 1911 the Parliament passed the Arbitration (Public Service) Act, which provided (inter alia) that employees in the Public Service should be deemed to be employees in an industry, and, in substance, applied the Commonwealth Conciliation and Arbitration Act, subject to certain conditions, to the Public Service. The Arbitration (Public Service) Act 1920 continued those provisions of the 1911 Act which permitted employees in the Public Service to form associations and register those associations under the Commonwealth Conciliation and Arbitration Act, but it substituted the Public Service Arbitrator for the Commonwealth Court of Conciliation and Arbitration, and expressly provided (in section 11) that, after the commencement of the Act, an organisation of employees in the Public Service should not be entitled to submit any claim relating to salaries, wages, etc. to the Commonwealth Court of Conciliation and Arbitration.

The position, therefore, appears to be as follows: If the Government employees in the Northern Territory are not members of any registered association, they cannot approach the Arbitrator or the Court. If they are members of an association of public servants registered in pursuance of the Arbitration (Public Service) Act 1911 or the Arbitration (Public Service) Act 1920 they can approach the Arbitrator but not the Court. If they are not members of an association registered in pursuance of these Acts, but are members of some other association registered in pursuance of the Commonwealth Conciliation and Arbitration Act, they may approach the Court through their association, but the Commonwealth will not be bound by any

award made except insofar as it relates to employees 'in an industry carried on by or under the control of the Commonwealth'.

[Vol. 17, p.434]