WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 107377 W.A.I.G.

Western Australian

Industrial GazettePUBLISHED BY AUTHORITY

Sub-Part 5 WEDNESDAY, 28TH MAY, 1997 Vol. 77Part 1

1073

THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:77 W.A.I.G.

CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION

INDUSTRIAL APPEAL COURTAppeal against decision of

Full BenchJURISDICTION : WESTERN AUSTRALIAN

INDUSTRIAL APPEAL COURT

CORAM : ANDERSON J (Acting Deputy Presiding Judge)SCOTT J

PARKER J

HEARD : 4 FEBRUARY 1997

DELIVERED : 2 APRIL 1997

FILE NO/S : APPEAL IAC 19 of 1996

BETWEEN : ALLAN GRAHAM SHUTTLETONAppellant

AND

JOHN CAINRespondent.

JUDGMENTANDERSON J (Acting Deputy Presiding Judge): This ap-

peal was heard on 4 February of this year by a Court constitutedby myself and Scott and Parker JJ. For the reasons which Inow publish I would allow the appeal.

SCOTT J: I would also allow the appeal and I publish myreasons.

PARKER J: For reasons which I now publish, I too wouldallow the appeal.

Catchwords:Industrial lawValidity of State lawInconsistency withCommonwealth lawState law proscribing conduct ofunion officialsProsecution of official of federal unionWhether State law inconsistent with Industrial RelationsAct 1988 (Cwth)Industrial Relations Act 1979 (WA),s96E(1)(b)Australian Constitution s109.

Representation:Counsel:Appellant : Mr R E Cock & Mr C PruitiRespondent : Mr P W Johnston & Mr M D CuomoSolicitors:Appellant : State Crown SolicitorRespondent : Mark D Cuomo

Case(s) referred to in judgment(s):Ansett Transport Industries (Operations) Pty Ltd vWardley (1980) 142 CLR 237Australian Broadcasting Commission v Industrial Court(SA) (1976) 138 CLR 399Botany Municipal Council v Federal Airport Authority(1992) 175 CLR 453Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR466Ex parte McLean (1930) 43 CLR 472Metal Trades Industry Association v Amalgamated MetalWorkers and Shipwrights Union (1983) 152 CLR 632Miller v Miller (1978) 141 CLR 269OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565P v P (1994) 181 CLR 583R v Clarkson; ex parte General Motors Holdens Pty Lim-ited (1975) 134 CLR 56T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR177Sharpe v Goodhew (1990) 33 IR 238Wenn v Attorney-General (Victoria) (1948) 77 CLR 84Williams v Hursey (1959) 103 CLR 30

Case(s) also cited:Alexandra Private Geriatric Hospital Pty Ltd v Common-wealth (1987) 162 CLR 271Australian Boot Trade Employees Federation v Whybrow& Co (1910) 11 CLR 311Bailey v Krantz (1985) 13 IR 326Beckwith v R (1976) 135 CLR 569Cooper Brookes (Wollongong) Pty Ltd v Commissionerof Taxation (Cth) (1981) 147 CLR 297Council of the Municipality of Botany v Federal AirportsCorporation (1992) 175 CLR 453Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR55Jumbunna Coal Mine NL v The Victorian Coal MinersAssociation (1908) 6 CLR 309R v Credit Tribunal, ex parte General Motors AcceptanceCorporation (1977) 137 CLR 545Re McJannet; Ex parte Minister for Employment, Train-ing and Industrial Relations for Queensland (1995) 132ALR 198Sharpe v Goodhew (1990) 33 IR 238

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 77 W.A.I.G.1074

University of Wollongong v Metwally (1984) 158 CLR447Victoria v Commonwealth (1937) 58 CLR 618Viskauskis v Niland (1983) 153 CLR 280The Queen v Credit Tribunal; Ex parte General MotorsAcceptance Corporation, Australia (1977) 137 CLR 545The Queen v Loewenthal; Ex parte Blacklock (1974) 131CLR 338The Queen v Winneke; Ex parte Gallagher (1982) 152CLR 211

ANDERSON J:This is an appeal from a decision of the Full Bench of the

Industrial Relations Commission, given on 4 November 1996,whereby the Full Bench allowed appeals against the decisionsof two Industrial Magistrates convicting the respondent ofcertain industrial offences.

The appellant is an industrial inspector appointed under theIndustrial Relations Act, and he brought several complaintsagainst the respondent of offences under s96E(1)(b) of the Act.So far as relevant, that section provides:

96E(1) A person, including an organisation of employ-ees, must not threaten that(a) ...(b) the free and lawful exercise of a second persons

trade, profession or occupation will or may be inter-fered with

by reason of the circumstance that the second person or athird person is not a member of an organisation of em-ployees.

It was alleged that the respondent, in his capacity as an of-ficer of the Transport Workers Union, threatened twonon-members of the Union that because they were not mem-bers of the Union they would not be permitted to do the workthey were then doing, and threatened their respective employ-ers that bans would be placed on their operations if theycontinued to employ the men in that work. It may be acceptedfor present purposes that this was either a recruiting tactic orpart of a wider strategy to get rid of non-union labour fromthese work sites.

There were six complaints in all, heard by two separateMagistrates. One complaint was dismissed. In respect of eachof the other complaints the Magistrates imposed fines of $400and made substantial costs orders. The respondent appealed tothe Full Bench against each conviction and all of the appealswere heard together. Three grounds of appeal were argued.The only one which concerns this Court is ground 3 as fol-lows:

3..... The learned Magistrate erred in law and in fact innot holding,(a) that any threat made by the [respondent] related to

membership of the Transport Workers Union of Aus-tralia (the Federal Union) an organisation registeredpursuant to the Industrial Relations Act 1988, an Actof the Federal Parliament (the Federal Act); and

(b) that insofar as the State Act sought to regulate therecruitment of membership to the Federal Union thenthe State Act is invalid to that extent as it is incon-sistent with the Federal Act which covers the field ofthe regulation of recruitment of members of Unionsregistered under the Federal Act.

In short, it was contended before the Full Bench thats96E(1)(b) was invalid for inconsistency with a Common-wealth statute, namely, the Industrial Relations Act (Cwth).

This ground of appeal was upheld and the convictions werequashed. The appellant appeals to this Court, pursuant to s90of the Industrial Relations Act (WA), on the ground of error oflaw.

The question is whether s109 of the Australian Constitutioninvalidates s96E(1)(b) of the State Act because those provi-sions of the State Act are inconsistent, in the constitutionalsense, with the Commonwealth Act. Section 109 provides:

Where the law of a state is inconsistent with a law of theCommonwealth, the latter shall prevail and the formershall, to the extent of the inconsistency, be invalid.

The question of inconsistency within the meaning of s109 isa matter of construction of the paramount legislation. SeeMiller v Miller (1978) 141 CLR 269, at 275; Ansett Trans-port Industries (Operations) Pty Ltd v Wardley (1980) 142CLR 237, at 248-252 and 259. The court must ask itself whatis the field or subject matter of the Commonwealth law and,having identified the field, consider whether the Common-wealth law intended to cover the field. As Barwick CJ said inMiller v Miller :

There are two distinct bases for the conclusion of incon-sistency within the meaning of s109 of the Constitution.There may be what may be called a textual collision be-tween the provisions of the Australian Act and of the StateAct or the Australian Act may manifest an intention onthe part of the Parliament that its law on the topic of itsAct shall be the law, that is to say, the exclusive law onthat topic both for what it forbids and what it allows.

In the words of Dixon J in Ex parte McLean (1930) 43CLR 472, at 483:

It depends upon the intention of the paramount Legisla-ture to express by its enactment, completely, exhaustively,or exclusively, what shall be the law governing the par-ticular conduct or matter to which its attention is directed.

Of course, it is necessary in cases in which the doctrine ofinconsistency is relied on to invalidate a State law, to take thelaw .... with which the State law is alleged to be inconsistentand discern precisely (my emphasis) the matters which it isthe intention of the Parliament .... are to be exhaustively deter-mined therebyMetal Trades Industry Association vAmalgamated Metal Workers and Shipwrights Union (1983)152 CLR 632 , at 642. In my opinion, an examination of theCommonwealth Act in this case reveals no intention that theAct is to be the whole law on the subject with which s96E(1)(b)is concerned.

According to the grounds of appeal set out above, the spe-cific matter with which the Commonwealth Act is said to dealis the regulation of recruitment of members of Unions regis-tered under the Federal Act. I am not sure Mr Johnston, onbehalf of the appellant, adhered to that identification of therelevant subject during the course of his argument before thisCourt. At one point he contended that the topic was as broadas the regulation of matters pertaining to the relationship ofemployers and employees, including non-members. I think itis impossible to regard the Commonwealth Act as intendedexhaustively to cover every matter that might conceivably fallinto that category. Taking the subject matter to be that whichis stated in the grounds of appeal or, perhaps, as being theconduct which may be engaged in by a federally registeredorganisation or by its representatives in order to require orinduce eligible employees to become members of the Unionand to prevent their employment if they will not join, I am stillnot able to see anything in the Commonwealth Act showingan intention that it is to be the whole law on that subject. Th