The Secretary to the Department of Defence has forwarded for advice the following memorandum:

I am directed to request the favour of your opinion on the following matter:

A Plaint was filed in the office of the Industrial Registrar, Commonwealth Court of Conciliation and Arbitration, on the 2nd May, by the Merchant Service Guild of Australia, and included in the respondents are—

• The Commonwealth of Australia and the Rt. Hon. the Prime Minister.
• The Commonwealth of Australia and the Hon. the Minister for Defence.
• The Commonwealth of Australia and the Hon. the Minister of the Navy.

An Affidavit was filed on behalf of the Minister for Defence on the 21st May, disputing the claims submitted.

The Industrial Officer entered appearance on the 6th March, 1923 and his Honor,
Sir John Quick, Deputy President, made the following remarks:

• HIS HONOR—I think it could be shown by the Minister for Defence that there could not possibly be any dispute between you and the Minister for Defence. The Minister for Defence is not engaged on any industry.
• CAPTAIN LAWRENCE—I thought that the proper persons to cite were the State and the Minister.
• HIS HONOR—That is so where there is an interstate industrial dispute, but surely you cannot say that there is an interstate industrial dispute between your organisation and the Minister for Defence. He is not engaged in any industry, but he is engaged in the Defence of the Country. You are up against a big thing. You can consider that and I will reserve that point. You can also consider as to whether there is an interstate dispute.

The matter of the Minister for Defence being engaged in an industry has again been referred to by His Honor, who desires the representative of the Department to state whether the Minister claims that an award should not be made against him on the ground that he is not engaged in an ‘industry’, but that the Minister engaged employees ‘in the Defence of the Country’.

It is perhaps in His Honor’s mind that under section 63(db) of the Defence Act, the Minister, by powers conferred by Regulations ‘employs persons’ in a civil capacity for any purpose in connection with the Defence Force, or in any factory established in pursuance of the Defence Act.

Under section 4 of the Commonwealth Conciliation and Arbitration Act, however, it is observed that under the definition ‘Industrial Dispute’, the Defence Department is not excluded.

I would be much obliged if the matter could receive early attention as the case is at present before the Arbitration Court, and His Honor will be expecting a pronouncement of the attitude of this Department on the point raised by him.

For the purposes of the Commonwealth Conciliation and Arbitration Act 1904–1921:

‘Industrial dispute’ means an industrial dispute extending beyond the limits of any one State and includes 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; and

‘Industry’ includes:

1. any business, trade, manufacture, undertaking, or calling of employers, on land or water;
2. any calling, service, employment, handicraft, or industrial occupation or avocation of employees, on land or water; and
3. a branch of an industry and a group of industries.

In order that the Commonwealth may be deemed to be carrying on an industry it must, I think, be engaged in more than the ordinary services of Government.

In my opinion an industrial dispute can only occur between the Commonwealth and its employees when the Commonwealth is engaged in any business, trade, manufacture, or undertaking, which requires the Commonwealth to exercise functions other than the purely governing function. I do not mean by this that the Commonwealth is necessarily carrying on an industry when it purchases goods and materials for the purpose of efficiently exercising the function of government. Where, however, it sets up factories or works for the purpose of manufacturing those goods and materials, then, it is, in my opinion, carrying on an industry.

The fact that the ultimate object is to facilitate the exercise of the governing function, does not, I think, alter the character of the work carried on.

Further, it is not necessary that the undertaking in which the Commonwealth is engaged should be carried on for profit (see—Federated Municipal and Shire Council Employees Union of Australia v. Melbourne Corporation (26 C.L.R. 508 at page 555
et seq)).

In my opinion, where the Commonwealth carries on a business or engages in an undertaking which is usually carried on by private persons, and is not a necessary concomitant of the business of government, it is carrying on an industry within the meaning of the Commonwealth Conciliation and Arbitration Act.

In the case of the Minister for Defence, although he is engaged in the defence of the Commonwealth, he finds it necessary, in order to secure that defence, to establish factories for the manufacture of arms, ammunition, equipment, etc. He may also undertake the carrying out of other operations which, as a rule, are carried out by private contractors.

In engaging in any such undertaking I think that he engages in an industry.

The question whether the Minister is engaging in an industry depends, of course, on the nature of each particular case.

I may add that although it may be held in any particular case that there is an industrial dispute within the meaning of the Act existing between the Minister for Defence and his employees, the Commonwealth Conciliation and Arbitration Court appears to have no power to make an award inconsistent with any Commonwealth law. (Cf. Federated Clerks’ Union v. Commonwealth of Australia and others (10 C.A.R. 16 at page 22)). If, therefore, the rates of wages of employees engaged in the industry were fixed by or under any Commonwealth Act or Regulation, the award would be ineffective to alter those rates.

[Vol. 19, p. 434]