WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Merchant Service Guild of Australia, Western Australian Branch, Union of Workers Appellant and Fisheries Department of Western Australia Respondent. and The Civil Service Association of Western Australia Incorporated Intervener. No 1354 of 1998. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER S J KENNER. 18 September 1998. Reasons for Decision. INTRODUCTION THE PRESIDENT: This is an appeal against the decision of the Commission, constituted by a single Commissioner, upon application No PSAA 1 of 1997 made on 30 June 1998. By his decision, the Commissioner dismissed an application by the applicant organisation for an award to operate throughout the State of Western Australia, which would apply to all fisheries officers, including trainees, employed under the provisions of the Public Sector Management Act 1994 (as amended). The application was made on the grounds that the employees who would be covered by the award are members of the applicant organisation. BACKGROUND The appellant was not, at the material times, a respondent to or party to any award which covered the employees, but alleged that it would be industrially expedient to issue such an award. The respondent employer opposed the application. Leave to intervene was granted to the Civil Service Association of Western Australia Incorporated (hereinafter referred to as the “CSA”) by the Commission at first instance. The CSA is also an “organisation”, as that is defined in s.7 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”). The CSA had an interest, so it was held, in that it contended that the new award which the appellant applied for was intended to cover fisheries officers of whom the CSA had constitutional coverage pursuant to its rules. Further, there were two awards, so the Commissioner observed, to which the CSA was the sole “union” party which applied to “Fisheries Officers”. The contention of the respondent was that the appellant had no ability under its rules to cover fisheries officers. A number of agreed facts and matters were set out in a schedule tendered to the Commission. These included the following. All fisheries officers were appointed pursuant to s.11 of the Fish Resources Management Act 1994 (as amended) (hereinafter referred to as “the FRM Act”) and are and were, at the material time, employed under Part 3 of the Public Sector Management Act 1994 (defined in s.4 of the FRM Act to mean “a fisheries officer referred to in s.11”). The Fisheries Department is a State Government Department responsible for the conservation, developing and sharing of fish and other living aquatic resources (so-called) “within Western Australia”. The maintenance of fish breeding stock levels and the control of commercial and recreational fishing are, to that end, functions of the respondent. The function is described in more detail in the agreed facts (see pages 58-59(AB)). The objects contained in the FRM Act are signposts as to what the Fisheries Department and fisheries officers are to achieve under the FRM Act, and what functions they are to perform. The employees sought to be covered are all persons who command, are officers of or use patrol vessels and other vessels in the course of their employment (with the exception of trainees and Level 1 fisheries officers). It was common ground that all fisheries officers held certificates of competence to navigate vessels, such certificates being issued pursuant to the Western Australian Marine Act 1982. The Commissioner also made a number of findings. The Commissioner found that the objects prescribed in the FRM Act were to conserve, develop and share the “fish resources of the State for the benefit of present and future generations”. The objects plainly, put shortly, so direct. (They appear in detail in s.3 of the FRM Act.) The Commissioner correctly so found. Further, the Commissioner canvassed those provisions of the FRM Act relating to provisions of entry and enforcement vested in fisheries officers. The Commissioner then construed and interpreted Rule 3 of the appellant’s rules, finding that a fisheries officer is not eligible for membership of the appellant organisation in accordance with Rule 3. No other basis for eligibility was argued before the Commission or the Full Bench. ISSUES AND CONCLUSIONS Interpretation and Construction This appeal was determinable primarily upon the interpretation of Rule 3 of the rules of the appellant. As the Commissioner said and, as was submitted to the Full Bench, the rules of an organisation must be interpreted in the same manner as any other legal document. (However, such rules are not “written law”, as defined in s.3 of the Interpretation Act 1984 (as amended).) Rules of registered organisations are to be given a liberal interpretation (see HSOA v Honourable Minister for Health 61 WAIG 616 at 618 (IAC) per Brinsden J with whom Smith J agreed) (see also R v Aird; Ex parte The Australian Workers’ Union [1973] 129 CLR 654 at 659) (see also Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers Association (1986) 60 ALJR 588 at 592 (HC)). The construction of a constitution or eligibility rule involves a question of law. The interpretation of or the meaning of a particular word or question, whether an employee falls within the category of a particular classification, is a question of fact (see ABLF v CMEWU 70 WAIG 1653 at 1655 (IAC)). It is permissible, in the course of interpretation, to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters, if the ordinary application of the words used is ambiguous (see R v Coldham; Ex parte AWU (1983) 153 CLR 415 at 430). That was not argued here. Of course, as the Commissioner acknowledged, Rule 3 was required to be interpreted and construed must be interpreted and construed in the context of the whole of the rules of the appellant. Rules 2(11) and Rule 3 Rule 3, the rule to be interpreted, reads as follows— “Members of the Mercantile Marine and dependent serv- ices possessed of certificates of competency issued or recognised by the Commonwealth of Australia, or any State thereof, the Board of Trade, or by any British pos- session or dependency, or possessed of any qualifications entitling him to undertake any duty connected with the navigation of vessels, may be elected as members. Ma- rine Engineers (so engaged), including Third Class and Port Engineers and Marine Engine Drivers, may be ad- mitted to membership, provided that this Rule as to Engineers shall only apply in cases where such Engineer is not eligible for membership in or has been rejected by the Australian Institute of Marine and Power Engineers. This Rule as to eligibility of Engineers shall include En- gineers upon vessels owned by the Government. Persons who have become Shipowners, Superintendents, or who are otherwise acting in the interests of employers, shall be strictly debarred from membership. Apprentices who are bound by indenture for sea service to a Shipowner or Master (other than Engineer Apprentices) and Cadets may be admitted to membership together with any other per- sons whether employed in the industry of Shipping and WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3649 78 W.A.I.G. Marine or not who have been or are hereafter elected as Officers of the Guild and admitted as members thereof.” The objects contained in Rule 2 of the rules refer to an industry called “The Shipping and Marine Industry”. Rule 2(11), in particular, contains the object that “the whole of the navigators (commanders, pilots, officers, and other persons connected or associated with shipping, subject to the provision of Clause 2) engaged in the Australian Merchant Service with the object that they shall comprise the membership of the Guild...”. However, I look first at Rule 3, applying the ordinary and natural meaning of the words to the whole of Rule 3 but, in particular, the words “Members of the Mercantile Marine and dependent services possessed of certificates of competency issued or recognised by the Commonwealth of Australia...”. As I have observed, it was not in dispute that fisheries officers are “possessed with certificates of competency” within the meaning of Rule 3. “Mercantile Marine” is defined by the Macquarie Dictionary (3rd Edition), at page 1346, as synonymous with the Merchant Navy, which is itself defined as— “1. the vessels of a nation engaged in commerce. 2. the officers and crews of merchant vessels.” In the Shorter Oxford Dictionary (3rd Edition), at page 1308, the Mercantile Marine is defined as— “the shipping collectively employed in commerce” The crucial phrase in Rule 3 is “Members of the Mercantile Marine and dependent services”. Accordingly, to be eligible for membership, within the meaning of that phrase, one must be a member of the Mercantile Marine, that is, of the Merchant Navy, “1. the vessels of a nation engaged in commerce 2. the officers and crews of a merchant vessel” (see Macquarie Dictionary (op cit) at page 1347 and see also the Shorter Oxford Dictionary definition (op cit) at page 1308). A vital component of the definition of the Merchant Navy (Mercantile Marine) is the word “commerce”. The appellant’s advocate, Mr Boronovskis, referred us to the definition of “trade commerce and intercourse” in s.92 of the Constitution and the dicta of Dixon J in Bank of New South Wales and Others v The Commonwealth and Others 76 CLR 1 at 381. However, the word “commerce” cannot be separated from or placed in isolation from the whole of the phrase in s.92, which is a phrase given a special meaning in the interpretation of s.92 of the Constitution in the Courts. In my opinion, in the context of the phrase “the Mercantile Marine” or “the Merchant Navy”, the definition of “commerce” contained in the Macquarie Dictionary (3rd Edition) at page 442 is more apposite. There is one apposite definition. That is— “interchange of goods or commodities, especially on a large scale between different countries (foreign com- merce) or between different parts of the same country” As a matter of fact, the employees who are said to be covered by Clause 3 are employed in a Government department, charged with the management and conservation of fish in Western Australian waters, and the regulation of fish and fishing to achieve certain objects in eco farming, commercial and leisure fishing and aquaculture (see also s.3, Part 4, Part 6, s.106, s.109, s.112, s.182-197 and s.200 of the FRM Act). Their functions are in supervision, education, management, inspection, liaison and enforcement, on the evidence. It is noteworthy, too, that police officers and naval officers have the powers, in certain matters, of fisheries officers (see s.180- 1 of the FRM Act). They are not employed, on the evidence, in or required to discharge duties in relation to merchant vessels. The Commissioner found correctly that fisheries officers and their employer are not, on the evidence, at all engaged in using vessels engaged in commerce, or providing officers or crews to vessels engaged in commerce. In particular, there was no evidence that the Department, or officers, crews or the subject employees (fisheries officers) bought, sold or traded or carried goods for that purpose, or for profit. That is not the function of the Department nor, on the evidence, of the patrol vessels of which fisheries officers are officers or crew members; nor is it the role or function of those employees. The Fisheries Department’s activity is and was, on the evidence, and according to the prescription of the FRM Act, plainly governmental and not carried on for profit. Further, the Fisheries Department and the fisheries officers were not, on the evidence, engaged in the interchange of goods or commodities, especially on a large scale, between different countries or between different parts of Australia, or at all. There was no evidence that fisheries officers were officers and/or members of a crew of merchant vessels or, for the reasons which I have expressed above, were the vessels owned by the Department and/or used by the Department, used or engaged in commerce. Further, s.3(c),(d) and (e) of the FRM Act, notwithstanding what Mr Boronovskis submitted, were, like all of s.3, not directed to commerce, but to management, conservation, allocation and supervision, on their plain words. Accordingly, the Commissioner was quite correct in deciding that these employees were not members of “the Mercantile Marine” or “the Merchant Navy”. The next question raised in the construction of the phrase is whether the word “and”, in the first line of Rule 3, is to be interpreted as a conjunctive word or a disjunctive word. In my opinion, it does not matter, to some extent. The phrase clearly means that eligibility depends on an employee being a member of the Mercantile Marine or, if she/he is not, of a dependent service of the Mercantile Marine (tugboat officers and crews and pilot boat officers and crews spring to mind). The phrase also means that members of the Mercantile Marine and also members of dependent services are eligible for membership. Put another way, if a fisheries officer is not a member of the Mercantile Marine or is not a member of a dependent service, i.e. dependent to or upon the Mercantile Marine, then that person is not eligible for membership of the appellant organisation. The question is whether, then, service in the Fisheries Department as a fisheries officer, appointed under the FRM Act, confers membership of a dependent service of the Mercantile Marine. The word “dependent” is defined by the Macquarie Dictionary (3rd Edition) at page 579 to mean— “2. depending on something else for aid, support, etc. 3. conditioned; contingent. 4. subordinate; subject.” In the Oxford Dictionary (3rd Edition), the word is defined to mean— “1. A subordinate part, appurtenance, dependency. 2. A person who depends on another for support, position, etc.; a retainer, subordinate, servant” I have already said that the Commissioner was correct in finding that the function of the Fisheries Department and its officers did not, in any way, authorise, require or enable it or them to engage in commerce. There was no evidence that their vessels are so engaged. I have already referred to the provisions of the FRM Act in order to characterise the function of the Department and the role of its officers. Having regard to those provisions and the evidence, it was open to the Commissioner to find that the Fisheries Department and its officers were not engaged in a service which bore any relationship to the Mercantile Marine. The Fisheries Department is not an appurtenance, a subordinate part, a dependency or subject to the Mercantile Marine, by statutory definition or prescription, in its prescribed functions or in its operations, and nor are its officers. That was clearly the case upon a proper consideration of the statute, the duty statements and the evidence. (The case of The Merchant Service Guild and Northern Territory Port Authority and Others (1970-71) 136 CAR at 299, which was concerned with pilots who were also public servants, and not with Clause 3 of the appellant’s rules, is not to the point.) The Fisheries Department plays no part nor does it assist the Mercantile Marine in the transport of goods by way of commerce, nor does it assist, facilitate the role of, form an adjunct to or contribute to the function of the Mercantile Marine or its officers and crews. The function of its employees is prescribed by the FRM Act. Their role is so defined, and includes, as I have observed, no participation in commerce, as I have defined it above. Their role bears no relation to the Mercantile Marine or its function or role, as I have defined it above. They carry out functions prescribed by the Parliament WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 78 W.A.I.G. 3650 of Western Australia in relation to fish within the waters of that State, and the conservations, administration and supervision of fish and the supervision, etc of those engaged in the fishing industry. (The FRM Act so prescribes and there is undisputed evidence to that effect.) That fisheries officers are, as a matter of evidence, required to operate vessels and to have the relevant certificate of competency is and was of no significance, given the evidence and given the plain words of Rule 3. It would be surprising if, in fact, it were not the case that such certificates were required and that the duties involved the operation of vessels and boats, since the work of fisheries officers is performed, in part, upon the sea, as a matter of necessity. It was clearly, for those reasons, open to the Commissioner to find that the employees submitted to be eligible for membership of the appellant were not members of the Mercantile Marine, or of a dependent service. In particular, it was open to find that the powers of the Department and of the fisheries officers to administer the fish industry under the FRM Act are not, for that reason, dependent at all upon them being in the service of the fishing industry, even if, by that fact, they were rendered members of a “dependent service”. In fact, if it were necessary to so find the fishing industry, on the evidence, involved aquaculture and fishing and might not, as a matter of evidence, be said to be part of the Mercantile Marine. However, it is unnecessary to make any finding on that issue. There was no other basis on which it was submitted that fisheries officers were eligible for membership of the appellant, nor was there, in the rules apparently, any other basis to so submit. Whilst it is unnecessary to refer to Rule 2(11), it is fair to say that, if it were prayed in aid, it would assist in a narrow construction of what the Mercantile Marine means, which is consistent with what the Commissioner found, at first instance. Whether the context of Rule 2(11), given the duties of fisheries officers and the provisions of the FRM Act under which they are appointed, the Commissioner could not have properly found that fisheries officers are connected with or associated with shipping. They are and were associated or connected with the supervision, regulation and management of fish and fishing. It was, therefore, correctly found that fisheries officers were not eligible to be members of the appellant organisation and that the application for an award by the appellant to cover those officers should be dismissed. I have considered all of the evidence and all of the submissions. It has not been established that the Commissioner at first instance erred, as alleged, in the grounds of appeal. For those reasons, no ground of appeal is made out, in my opinion. The Commission did not err in finding as it did. I would dismiss the appeal. CHIEF COMMISSIONER W S COLEMAN: I have had the benefit of reading the Reasons for Decision of His Honour, the President. I agree with those reasons and have nothing further to add. COMMISSIONER S J KENNER: I have had the benefit of reading the Reasons for Decision of His Honour, the President. I agree with those reasons and have nothing further to add. THE PRESIDENT: For those reasons, the appeal is dismissed. Order accordingly APPEARANCES: Mr T Boronovskis on behalf of the appellant Ms J Smith (of Counsel), by leave, on behalf of the respondent Mr J Dasey on behalf of the intervener