Allen, Francis v The Building Workers Industrial Union of Australia

IN THE FEDERAL COURT	)
OF AUSTRALIA

WESTERN

AUSTRALIA

)

No. WA 3 of 1984

DISTRICT

REGISTRY

INDUSTRIAL	DIVISION	)
B E T W E E N :

FRANCIS ALLEN and LESLIE ALAN

SEMF'LE PARK

Applicants

and

THE BUILDING WORKERS INDUSTRIAL

UNION OF AUSTRALIA

First Respondent

THE	WESTERN AUSTRALIAN

CARPENTERS

JOINERS,

BRICKLAYERS AND STONEWORKERS

INDUSTRIAL UNION

OF WORKERS

Second Respondent

PATRICK MARTIN CLANCY,

EXNEST

BOATSWAIN,

THOMAS

McDONALD

ARNOLD CURRIE, HUGH HAMILTON,

BEN CARSLAKE. ROD DRIVER and

ALFRED ZEENO

Third Respondents

R. MARCHANT, G. FERGUSSON, T.

MORRISON, W. GABLES,

STRUTZENBERGER. S. PINCIRO, I. SMITH, M. 0 'LFARY, S. TAYLOR and D. EISENHAMMES

Fourth Respondents

Cowl: TOOHEY J.

12 March 1984

REASONS FOR JUDGMENT

This is a further chapter in what is becoming

a saga of

the Building Workers Industrial Union of Australia (the "BWIU"),

an organisation under

the Conciliation and Arbitration Act 1904.

Matters involving

Mr. Allen and

Mr. Park on the one hand

and the BWIU on the other have been before

this Court on several

occasions since last year.

place the

present application,

which is

for interlocutory relief, in context it is helpful

look briefly at what

s happened so far.

Mr.	Allen and Mr. Park are members of the BWIU and,

until February

1983,

each

was

organiser

the

Western

Australian Branch of the BWIU ("the Branch"). At that time steps

were

taken by the

assistant

secretary

the

Branch,

Mr.

Henderson, to suspend

Mr. Allen and Mr. Park as organisers;

thereafter the committee

of management of the Branch purported

first to suspend and then to dismiss them

as organisers.

On	6 May 1983 this Court made orders, the effect of

which was to require the BWIU and the officers of the Branch to

treat the suspension and dismissal of Mr. Allen and Mr. Park as

null and void.

Subsequently

Mr.

Park

and

Mr.

Allen

each

brought

proceedings against

Mr.

Henderson, charging him with

a failure to

comply with orders made by the Court in the proceedings just

mentioned. On

2 September 1983 Beaumont J. dismissed each of

those informations.

The

step

was a reference

the

Industrial

Regisbrar to

the Court, pursuant

to s.159(4) of the Act, of an

inquiry into an election being conducted by the BWIU under s.170

of the Act.

That election concerned officers of the Branch. The

Western

Australian

Carpenters

and

Joiners,

Bricklayers

and

Stoneworkers Industrial Union of Workers,

a union registered under

the Industrial Arbitration Act of this State and referred to

hereafter as "the State union", had requested that

an election for

officers of the State union be held concurrently with the Federal	L
election.

Mr. Boatswain, an assistant secretary of the BWIU, was the person who had sought from the Industrial Registrar

an inquiry

into the

Branch election. In proceedings before this Court, Mr.

Boatswain sought an interim order

which, if granted, would have

deferred

the State union election until the election for the

Branch had been completed. That claim for interim relief was

denied and no further steps

were

taken in that application

although, as I understand the position, the reference to this

Court is still on foot.

4 .

Concurrent elections were held

and,

as it happened,

those elected to the committee of management of the Branch were

not identical with those elected

to the committee of management

the State union. Such

situation had not arisen at any time

since there had been a Western Australian Branch of the BWIU and a State registered union in Western Australia. The election results reflected the existence of different factions within the BWIU.

It will be necessary to look more closely at the

relationship between the BWIU, the Branch and the State union. concerning bank accounts, office premises and other items of

property.

For all practical purposes the affairs

of the Branch

and those of the State union had been conducted

as one.

December 1983 this Court made certain orders

against persons who then comprised the committee of management of

the Branch but whose tenure of office ceased, by reason of the

elections just held, on 1 January 1984. Those orders were designed to preserve property claimed to belong to the Branch. Those orders were by way of interim relief but were subsequently

extended, without demur, until the hearing of the substantive

application in matter number

24 of 1983.

On	22 December orders were made in the same matter

against the State union, designed to ensure access by Mr.

Allen

and Mr. Park to premises and records for the purpose

of conducting

the affairs of the Branch of which they were then the secretary

and assistant secretary respectively.

The orders against the

State union were, on

8 February 1984, discharged by consent at the

instance

of the applicants. That matter,

WA 24

of 1983, is

presently before the Court

as part of a directions hearing.

!She matter

now before the Court arises in this way.

Notwithstanding the election

of Mr.

Allen and Mr. Park to the

position of secretary and assistant secretary of the Branch

at t e

recent election, the BWIU continues to regard the State union

its Western Australian Branch and the officers of that union as

the

committee

management

the

Branch.

the

present

application Mr. Allen and Mr. Park seek orders against the BWIU,

the State union, the members of the national executive of the BWIU

and khe committee of management of the New South Wales branch of

the BWIU. The basis of the application is said to be found in

5.141 of the Act. That section reads:

A	member of an organisation may

apply to the Court

for an order

under this section in respect of

the organisation.

An order under this section

may

directions

give

for

performance or observance of any

of the rules of

an organisation by

any

person

who

under

obligation to perform or observe

those rules.

”

The substantive relief sought by the applicants includes

a declaration

that

they

hold

the

offices

secretary

and

assistant secretary of the Western Australian Branch of the BWIU

and orders that will restrain the respondents from holding out the

State union

as the Western Australian Branch of the BWIU. The

matter presently before me is by

way of a claim for interlocutory

injunctions restraining the respondents from holding out the State

union as the Western Australian Branch of the BWIU and other

injunctive relief which, if granted, will preclude the State union

from using the words "Building Workers Industrial Union"

or the

letters "BWIU"

as part of its title and will restrain the BWIU

from authorising the State union to use those words

those

letters. Other injunctive relief sought relates to the payment of

subscriptions and the entry onto premises occupied by employers

bound by the National Building Trades Construction Award 1975.

The substantive application raises questions of fact and

of law, many

of which were explored

or at any rate touched on in

the course of the present proceedings. Some reference

to most of

these matters is called for in the course of these reasons but it

is necessary to keep in mind that the present claim is one	for
interim relief.

Some brief reference

the history of the BWIU and the

State union is required. First however I should explain why the committee of management of the New South Wales Branch of the BWIU

appear as the fourth respondents

in this application. The reason

that, as

a matter of administrative convenience, the fourth

respondents maintain the membership records

of the members

of the

BWIU in Western Australia on

a computerised system and give notice

to members of the Branch when subscriptions are payable. The

. ,

fourth respondents are joined with

a view to restraining them from

sending notices directing payment of subscriptions to the office

of the State union.

The national rules of the BWIU refer to it as a union

"formed by the amalgamation of carpenters and joiners, bridge and

wharf

carpenters,

bricklayers,

stonemasons,

tilelaycrs,

roof

slaters

and

tilers

and

an association

with

the

Operative

Plasterers' Federation of Australia".

Rule	26 of those rules provide that there shall be

branches of

the organisation in various states including Western

Australia and that:

"Such Branches shall be

known as the

Building Workers' Industrial Union of

Australia, New South Wales Branch, or as

the case may be; or,

with the approval

of the National Executive the Branches

may be known by some other name".

The

W stern

Australian

Carpenters

and

Joiners,

Bricklayers and Stoneworkers Industrial Union

of Workers is, as

already noted, a union under the industrial legislation of Western Australia. Its registered rules refer to it as "State Branch

B.W.I.U." and rule

2 reads:

"2.

The name of the Branch shall be

The Western Australian Carpenters

and

Joiners,

Bricklayers

and

Stoneworkers Industrial Union of

Workers".

There are also rules

of the Building Workers' Industrial

Union	of Australia, Western Australian Branch, rule	2	of which
reads :

"The name of the Branch shall be The

Western

Australian

Carpenters

and

Joiners,

Bricklayers

and

Stoneworkers

Industrial Union of Workers,

a Branch of

the Building Workers Industrial Union of

Australia".

According to

affidavit filed by Patrick Martin

Clancy, the national secretary of the BWIU, at the time of the

registration of

the BWIU under the Conciliation and Arbitration

that organisation agreed that it would not, in Western

Australia, conduct

branch which was in

any way separate and

distinct from the body which is now the state registered union.

Again, according to

Mr. Clancy, on 24 September 1963 the BWIU

consituted the State union as its branch in Western Australia.

Whatever the precise legal effect

of what was done, there is no

doubt that from 1963 until the recent branch election, the State

union operated

the Western Australian Branch of the BWIU.

Indeed, until that time, only one election was held for the

committee of management of the Western Australian Branch of the

BWIU and the committee of management

of the State union. And, as

already mentioned, the BWIU and the State union continue to adhere

9 .

to that arrangement notwithstanding the outcome	of the recent
election.

Certain questions pertaining to jurisdiction arise in

this matter. They can be summed up in this way.

1. Can orders be made under s.141 of the Act

against the

BWIU or the State union, neither

of which has itself an obligation under the

rules of the organisation?

2 . If an order under s.141 is not appropriate in the case of the BWIU or the State union, can the Court make an order of that sort so as to resolve the issues before it?

As	a question which to some extent overlaps

the previous one, if there is

no power under

s.141 or

under

any

provision

the

Act	to grant the relief sought against the

BWIU and the State union, is the granting of

such relief

so associated with the performance

of rules by the other respondents that there

is attracted to the Federal Court jurisdiction

to resolve those issues?

10.

4. Whatever the answer might be to the previous questions, can the Federal Court grant any relief in respect of a claim against a State registered union?

Associated

with

these

jurisdictional

issues

the

question of

what is meant by saying that the State union is the

Branch. The branch of

a Federal organisation has no separate

legal existence as a juristic person. Williams

v. Hursev (1959)

103 CLR

30. "here are difficulties in the

way of

treating the

corporate body existing by virtue of State industrial legislation

as a branch

of an organisation

incorporated

under

Federal

legislation. Moore

v. Dovle (1968) 15 FLR

59.

Is the proposition

argued by the respondents any more than that the membership of the

Branch is coincidental with that of the State union? These are

matters that must be considered

at the substantive hearing but do

not have

t~ be answered now.

With a view to determining the scope of the application

under 5.141, I asked Mr. Gethin, counsel for the applicants, to identify the rules in respect of which observance was sought. He

mentioned rules 26,

17(1) and 15(3).

Rule 26

has been referred to earlier in these reasons.

It provides that there shall be branches

of the BWIU and it is, no

doubt, implicit in the rule that branches shall be lawfully

constituted.

11.

Rule	17(1) is concerned with the composition of the

national executive of the BWIU, which body includes "such Branch

Secretaries

who are not elected to any of the aforementioned

positions of the National Executive".

Counsel also pointed to rule

15(3), whereby branches are

entitled to elect "including the Branch Secretary, one delegate

for the first two thousand members or part thereof".

It is important that those responsible for the making of

an application under s.140 not lose sight of order

4 rule 15(4)

of the Federal Court Rules which requires the affidavit in support

to set forth inter alia:

"(a) the

rule

rules

the

organization

the

performance

observance

which

question".

Section 141 is somewhat unusual In that i n confers on

the court jurisdiction, not by virtue of some subject matter, but

with reference to orders which may be made by way of directions

for the performance

observance of rules. It is perhaps for

that reason that there exists

a line of authorities to the effect

that orders should not be made under s.141 against organisations

as opposed to individuals.

12.

Of those authorities it is necessary to refer only v. Commonwealth Industrial Court:

Ex parte Federated Miscellaneous

Workers’ Union

of Australia (1971) 125 CLR 502 at p.508, in the

judgment of Barwick C.J. with whom the other members

of the Court

concurred.

“However,

having

given

the

matter

consideration I have

come

the

conclusion

that

preferable

and

correct construction of the section is

that the orders the making of which

s.141 authorizes are limited to orders

against

persons

who are under an

obligation to perform or observe the

rules

an organisation

and

particular the rules for the performance

or	observance of which the orders and

directions are being given“.

It may be argued that there is

an inherent power to make

orders to prevent proceedings properly before the Court from being rendered nugatory by the acts of parties before the proceedings .-

can be determined. Such an argument

was rejected, in the case of

the Commonwealth Industrial Court, in

v. Forbes: Ex parte Bevan

(1972) 127 CLR 1 though some of the limitations of that court, as

found by the High Court do not apply in the case of the Federal

Court. In this regard B.M.I.

Limited v. Federated Clerks Union of

Australia (unreported decision

Federal Court delivered 21

December 1983)	has some relevance though it was not referred to in
argument.

To confine s.141 to the making

of orders against persons

would have the consequence that

no such

order could be made

13.

against the

BWIU,

the first respondent. It would also mean that

no such order could be made against the State union, the second respondent, though there are other grounds upon which it may be

argued that no such order may be made in the case of	a State
registered union.

However,

counsel

for

the

State

union

appeared

acknowledge, in the course of his argument, that if orders under

s.141

were

otherwise

permissible

against

his

client,

the

limitation to which

I have referred could

be met by joinder of the

committee of management of the State union.

Counsel for the applicants argued that,

so long as there

was a

justiciable issue in the case of some of the respondents,

this Court had jurisdiction to make the orders sought against the

first

and

second

respondents

reason

its

accrued

jurisdiction. He referred to the decision of the High Court in

Fencott v. Muller

11983) 46 ALR 41 and to the recent decision of

Beaumont J. in

Kennedv v. The

Australasian

Coal

and

Shale

Emplovees Federation and Elcom Collieries Ptv. Ltd. (unreported decision delivered 31 October 1983).

The

latter

case

concerned

application

for

declaration under s.144 of the Act that the applicant was entitled

to be enrolled as

a member of the first respondent. Beaumont

L .

refused an

application by the second respondent, the applicant's

14.

employer, to be dismissed from the proceedings. He did	so for the
following reason:

"In my opinion, once the first respondent

elected to raise a defence to the claim

made under s.144 that the applicant was

neither employed nor qualified to be

employed by the second respondent, it

followed that the

claims made by the

applicant against the first and second

respondents respectively were part of

the same

controversy,

notwithstanding

that different relief is sought against each respondent: the claim made against the second respondent springs from facts

which are common to the claim made

against the first respondent and the

formula

'common

transactions

and

facts'	may	thus	be	applied	in	this
case".

Counsel for the applicants also drew attention to s.171C

of the Act which permits

a member of an organisation

r any person

having

a sufficient interest in respect

of an organisation to

apply to the court "for

a determination of

the question whether an

invalidity has occurred in

the management or administration of the

organisation or of

a branch of the organisation or in an election

or appointment in,

or the making or alteration of the rules of,

the organisation

or a branch of the organisation

...l'.

As counsel for the first, third and fourth respondents rightly pointed out, the matter before the Court is not an

application

under

s.171C.

I have

difficulty

determining

precisely the invalidity to which the applicants refer. If it

the decision made by the

BWIU

in 1963 that the State union should

15.

be its Nestern Australian branch, that may be something more than

an invalidity

"in

the

management

administration

of the

organisation".

the extent that it

such an invalidity,

s.171F may operate to validate what was done.

As	I suggested to counsel during the course of the

hearing, the parties find themselves in somewhat of

an invidious

position. The applicants contend that the state union is not the

Western Australian branch of the BWIU. If that argument is right,

where is the jurisdiction of this court to make orders against

that body? On the other hand, if the respondents are correct and

the State union is the Western Australian branch of the BWIU, the

union may well be amenable

to the jurisdiction of the Federal

Court under the Conciliation and Arbitration Act.

Mr. Schapper, counsel for the State union, adopted the

submissions

Mr.

Rothman

made

behalf

the

other

respondents. But he invited the court not to be overly concerned

with

all

these

questions

his

tage.

They

are,

acknowledged, questions which will have to be addressed and in

many cases answered for the purposes of the substantive hearing.

But, he said,

the court should not lose sight of the fact that it

is a claim for interlocutory relief that is presently before it.

Mr. Schapper was prepared to concede that, at least so

far as his client was concerned, there was

"a erious question to

be tried" (Gibbs

C.J.

in Australian Coarse Grain Pool

Ptv. Ltd. v.

16.

Barley Marketinq Board of Oueensland (1982)

46 ALR 398). He also

conceded that the present case is not one in which damages may be

said to be

adequate remedy. But, in his submission, the

balance of convenience was wholly against the granting of the

interlocutory relief sought.

The arugment

the second respondent was that since

1963 the State union had operated as the Western Australian branch

of the federal organisation. Members of the Western Australian

branch recognise the office of the State union at

108 Beaufort

Street as the office of the Branch. If the injunctions sought are

granted, the State union will have to cease providing

a service to

members of the Branch. There will be confusion in the minds of

members and their interests will be affected adversely. On the

other hand, it was acknowledged that if an injunction is refused

the applicants will have to continue functioning in the limited

way in which they have operated to date. This, it was said, may

hamper their activities but in effect the status	quo will be
preserved.

There is a great deal of force in the submissions made on behalf of the second respondent though it is important not

forget that the applicants have been elected to the position of

secretary and assistant secretary of the Western Australian branch

by the members of that body. Although,

in earlier proceedings,

there was a suggestion of a challenge to the branch elections,

such challenge

has been made.

I .

17.

This much is clear.

grant the relief sought will

mean that the State union must cease holding itself out as

branch of the BWIU and must cease doing anything in the course of

correspondence or other activities to suggest that it is the

Branch. Yet its rules, registered under the provisions of the

industrial legislation of this State, describe it as branch of

the BWIU. Equally the rules of the Western Australian branch of

the BWIU, registered under the provisions of the Conciliation and

Arbitration Act, identify the name

of the branch as The Western

Australian Carpenters and Joiners, Bricklayers and Stoneworkers accustomed to paying their subscriptions to and dealing with the

Industrial Union of Workers, a Branch of the Building Workers

office

the

State

union

the

branch

the

federal

organisation.

And

employers

affected

the

National

Building

Trades Construction Award have been accustomed to dealing with the

State union as the Western Australian branch of the

EMU. To make

interim orders which will prevent that situation from continuing,

when difficult questions of law and fact remain to be determined,

may be to cause

a great deal of confusion unnecessarily. The

claim for interim relief presently before the Court is not one in

which orders by way of preservation of property or other interests

is sought which, if not granted, may cause irretrievable loss.

I accept that to refuse the interim relief sought will

place

the

applicants

under

a handicap

carrying

out

the

18.

functions of the offices

to which they have been elected. That is

a problem

they

have

already

had

face.

To refuse

the

injunctions will mean that they will have to continue under that

handicap; but at the same time their difficulties will not have

been aggravated.

satisfied that the balance of convenience favours refusal of the interim relief presently sought. But

I should make

I am

it clear, as I have endeavoured to do on previous occasions, that

an	early resolution of the questions which are raised by this

application and by application number

WA 24 of 1983 is eminently

desirable.

I shall give whatever directions are appropriate to

ensure an early hearing

of this matter.

During the course of counsels' submissions, reference

was made to

s.78B of the Judiciarv Act 1903.

The effect of that

section is that where

a cause pending

in the Federal Court

"involves a matter arising under the Constitution or involving its

interpretation", the Court may not proceed

in the cause unless and

until it is satisfied that appropriate notice has been given to

the Attorney-General of the Commonwealth and of the States.

Counsel did not define with any particularity the matter said to

arise under the Constitution or to involve its interpretation

other than the jurisdiction of the Federal Court to entertain

claim against

a State registered union.

19.

Section 78B(5) allows the Court, in such

a case, to hear

and determine proceedings,

"so far as they relate to the grant of

urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so". It seemed to

' _ I .

necessary,

the

interests

justice,

allow

the

application to continue.

In any event s.78B(Z)(c) permits the

Court to "continue to hear evidence and argument concerning

matters severable from any matter arising under the Constitution

or involving its interpretation". However, once this decision has

been given,

I shall explore more closely with counsel the possible

operation of s.78B.

The application for interlocutory relief is refused.

I certify that this

and the elghteen

preceding pages are

a true copy

the Reasons

for Judgment herein

h l s Honour Mr. Justice Toohey

Dated: 12 March L984

[1984] FCA 49

12 Mar 1984