Adams, Geoffrey David v Amalgamated Metals Foundry and Shipwrights Union

[1984] FCA 55

Re: GEOFFREY DAVID ADAMS
And: AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION
No. NSW10 of 1984
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Beaumont J.

CATCHWORDS

Industrial Law - Union rules - Conciliation and Arbitration Act, 1904 s.133(1)(db)- Whether directory or mandatory - Whether any flexibility in statutory period - Whether court has discretion under s.140.

Conciliation and Arbitration Act, 1904 s.133(1)(db), 140

Acts Interpretation Act, 1901, s.15AA

HEARING

SYDNEY

#DATE 21:3:1984

ORDER

1. I make orders in accordance with paras. 1 and 2 of the order to show cause.

JUDGE1

This is an application for declarations brought pursuant to s.140 of the Conciliation and Arbitration Act, 1904 ("the Act") alleging a contravention by the respondent of the provisions of s.133 (1)(db) of the Act. The applicant, a member of the respondent which is an organisation registered under the Act, applies to the Court pursuant to s.140(2) for the following relief:

"1. An Order that Rule 2 Part F of the Rules of the Organisation:-

(a) is contrary to or fails to make a provision required by a provision of the Conciliation and Arbitration Act, 1904, contrary to Section 140(1)(a) of the Act;

(b) prevents or hinders members of the Organisation from observing the law, contrary to Section 140(1)(b) of the Act; and/or

(c) imposes upon members of the Organisation conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of Organisations under the Act, are oppressive, unreasonable or unjust, contrary to Section 140(1)(c) of the Act.

1. A Declaration that the Applicant be and be deemed to be the holder of the office of State Secretary of the Tasmanian Branch of the Organisation on and from 10 February, 1984.

1. Such further or other Orders as to the Court seems fit."

Section 133(1)(db) of the Act provides, so far as is relevant, that the rules of an organisation "shall not permit a person to be elected to hold an office within the . . . organisation for a period exceeding 4 years without being re-elected". Robert Ridley, a member of the respondent, was declared elected unopposed to the office of State secretary of its Tasmanian branch in December 1979. The term of his office commenced on 10 February, 1980 for a period of four years, pursuant to the operation of sub-rule 6 of rule 2 of the respondent's rules as then in force. Pursuant to the operation of the sub-rule, the term of office expired on 9 February, 1984.

The applicant was declared elected to the position of State secretary of the respondent's Tasmanian branch on 20 December, 1983 in a ballot which concluded on 19 December, 1983. However, rule 2 part F of the rules as certified by the Industrial Registrar on 19 September, 1983, purportedly provides as follows:

"TRANSITIONAL PROVISIONS

Notwithstanding -

(a) the provisions of the rules in force immediately before the commencement of operation of Rule 2, so far as those rules dealt with the term of office of:

National President
National Secretary
Assistant National Secretaries
National Organisers
State President
State Secretary; and
Assistant State Secretary; and

(b) the provisions of Parts A & B of Rule 2, so far as they provide for the taking of specified steps by the Returning Officer or the State Returning Officer, as the case may be, in the conduct of an election under the Part at a time related to the expiration of the term of office of the holder of the office to which the election relates;

for the purpose of the conduct of the first election under Parts A & B of Rule 2 for each of the offices concerned, the term of office of the person elected under the Rules in force immediately before the commencement of operation of Rule 2 shall -

(i) where the term of office would otherwise expire in the period between the 1st January and the 30th June in any year, expire on the 30th April in that year;

(ii) where the term of office would otherwise expire in the period from the 1st July to the 31st December in any year, expire on the 31st October in that year;

notwithstanding that the term of office of the person elected to the office under the Rules in force immediately before the commencement of operation of Rule 2 is, as a result of the provisions of this Part, greater or less than 4 years, as the case may be." (Emphasis added)

Thus, rule 2 part F of the present rules purports to extend the term of office of Robert Ridley to 30 April, 1984, a period of four years and eighty days.

The applicant submits that, in so far as rule 2 part F of the rules purports to extend the term of the office beyond a period of four years, such rule is contrary to s.133(1)(db) of the Act and is invalid: see s.140(1)(a). Alternatively, the applicant says that in so far as the rule purports to extend the term of office beyond a period of four years, and thereby to prevent the applicant from taking office as State Secretary of the Tasmanian branch until 1 May, 1984, such rule imposes upon members of the organisation (including the applicant) conditions, obligations or restrictions which are oppressive, unreasonable or unjust, contrary to s.140(1)(c) of the Act.

It is first submitted on behalf of the respondent that the provisions of s.133(1)(db) are directory and not mandatory and that they have been substantially complied with in the present case.

Whether a particular statutory provision is mandatory or merely directory in the sense that it requires no more than substantial as distinct from literal compliance with its terms is, of course, a matter of construction (see Tasker v. Fullwood (1978) 1 N.S.W. L.R. 20 at pp.23-4; Pearce, Statutory Interpretation, 2nd Ed. (1981) at p.163). In the present case, s.133(1)(db) provides that the rules "shall" not permit a person to hold office for a period exceeding four years without being re-elected. It was this "imperative" use of language which led Menzies, J. in Shearer's case to describe such provisions as "mandatory" (The Queen v. Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section (1960) 103 C.L.R. 368 at p.387).

But the question remains of identifying the precise requirements of s.133(1)(db). In other words, does it call for a maximum term of four years and not a day more (in the sense of time being of the essence) or is there room for implication in the provision to give it some flexibility in terms of time if, for example, convenience and the desirability of avoidance of expense call for a departure from the stipulated period.

In my opinion, the language of s.133(1)(db) admits of no other interpretation than the requirement of a term not exceeding four years in duration. In my view, it is not possible to import into its provisions any exception based on grounds of convenience or avoidance of expense or any other reason. Nor is there any scope for a de minimis exception: the legislature has nominated a four year term as the maximum permissible in its view and the Court must give effect to that view.

The respondent sought to avoid this construction by suggesting that a small degree of flexibility in the maximum term would not offend the policy or object of the legislation: see Acts Intrepretation Act, 1901, s.15AA. However, in the case of s.133(1)(db), it is difficult to discern in the statute any policy or object other than a requirement that the term of office shall not exceed four years. Thus, to permit any greater period would be contrary to any such policy or object and it is no answer to suggest that the legislature is only concerned to ensure that officers of organisations are not entrenched for periods which are seen to be too long in any democratic sense. On the contrary, Parliament has chosen a maximum term of four years as its means of achieving its policy or object and any attempt by the Court to extend that term would amount to an impermissible attempt at legislation on its part. I reject the respondent's primary submission.

Then the respondent argues that, as a matter of judicial discretion, the Court should decline to grant declaratory relief under s.140: it points to the absence of any application for relief other than a declaration under s.140; that no consequential relief is sought under s.141 or otherwise; and that the transitional alteration to the rules now attacked is a reasonable attempt on its part made in good faith with a view to minimizing disruption to the conduct of its affairs which would otherwise occur by reason of a recurring multiplicity of elections for the several offices to be filled from time to time.

In response to the evidentiary material tendered by the respondent in this behalf, the applicant first of all objects to its admissibility on the ground of its lack of relevance. If this evidence is admitted, a matter yet to be decided, the applicant has foreshadowed his desire to cross-examine the deponent whose affidavit the respondent seeks to read on this branch of the case.

In Shearer's case, Fullagar, J., speaking of the precursor of the present s.140, said (at p.376):

"The new s.140 is now, in its turn, attacked on the ground that the power which it purports to confer on the Commonwealth Industrial Court is not judicial power. If we look only at sub-ss.(1) to (4) inclusive, we must say at once, I think, that it is clear that the new power is entirely different in nature from the old power, that it is a judicial power in the strict sense, and that to exercise it is to exercise the judicial power of the Commonwealth. Under the new section the Court is not authorised to do anything of its own motion. An application may be made to it by a member of an organization for an order declaring that a rule of the organization has one or more of the qualities specified in sub-s.(1) of the section. When such an application is made, a duty is cast upon the Court to determine, as a mixed question of law and fact, whether the challenged rule does or does not possess one of those qualities. If it answers this question in the negative, it must dismiss the application. If it answers it in the affirmative, it must make the declaration sought. It has no discretion in the matter. The function which it is called upon to perform is to hear and determine a matter in controversy, the issue depending on antecedently existing law and fact." (Emphasis supplied)

Although the question in Shearer's case was the constitutional validity of the provision as it then stood, the observations made by Fullagar, J. as to its operation should, I think, be treated as decisive of the present question. In the result, I uphold the objection of the applicant to the admissibility of the evidence tendered by the respondent as material indicating reasons why, as a matter of discretion, the relief ought to be declined. In my view, there is no discretion, at least of the general kind now contended for, to refuse relief claimed under s.140 (see also Leveridge v. Shop Distributive & Allied Employees' Association (1977) 31 F.L.R. 385 at p.392-3; 425; Egan v. Maher (No.1) (1978) 35 F.L.R. 197 at p.247; Cook v. Crawford (1982) 43 A.L.R. 83 at pp.149-51; Wright v. McLeod, unreported, Full Federal Court 28 November, 1983 per Smithers, J. at p.21; per Evatt and Northrop, JJ. at pp.15-17).

I make orders in accordance with paras.1 and 2 of the order to show cause.