Australian Public Service Associaton (Fourth Division Officers ) v Lawrence, R.P.I

[1982] FCA 175

Re: AUSTRALIAN PUBLIC SERVICE ASSOCIATION
And: ROBIN PETER ISAAC LAWRENCE
No. NTG1 of 1982
Industrial law
2 IR 69

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
INDUSTRIAL DIVISION
Toohey J.

CATCHWORDS

Industrial law - eligibility for membership of organisation - designation of employee - employee within organisation

Conciliation and Arbitration Act 1904 ss.144, 171E

HEARING

DARWIN

#DATE 20:8:1982

JUDGE1

The applicant, Australian Public Service Association (Fourth Division Officers), is an organisation registered under the Conciliation and Arbitration Act 1904. Its membership comprises officers and employees of the public services of the Commonwealth, the Northern Territory and the Australian Territory and of the service of any public institution or authority of the Commonwealth, possessing one of the many designations contained in rule 5 of the Association's registered rules.

The Association seeks various orders against the respondent Robin Peter Isaac Lawrence, but primarily what it seeks is a determination that Mr. Lawrence is neither a member nor an office bearer of the Association. That declaration is sought pursuant to s.144(5) of the Act.

In April 1981 Mr. Lawrence was employed as a head cook in the Northern Territory Department of Health at Darwin Hospital Casuarina. While in that position he had been a member of the Miscellaneous Workers Union but apparently resigned that membership in December 1981.

By notice dated 16 April 1981 the Northern Territory Public Service Commissioner, acting under powers conferred by s.54(1)(d) of the Public Service Act, gave notice to Mr. Lawrence

". . . that on and from 21 April 1981 you shall be temporarily transferred subject to your qualifications, elsewhere in the Public Service with a salary equivalent to the salary previously paid to you.".

It is unnecessary, for the purposes of this application, to consider the circumstances leading to the giving of that notice; it is enough to say that there had been complaints about Mr. Lawrence's work.

Mr. Lawrence remained within the Department of Health but was attached to the finance section where he carried out a range of duties. These he described as including work in the nature of a storeman and at times duties similar to those of a property officer. It seems that although the Public Service Commissioner's formal notice of transfer was dated 16 April 1981, Mr. Lawrence ceased to work as a head cook as from February.

On 21 April 1981 Mr. Lawrence took leave without pay from the Northern Territory Public Service. As appears from the material he tendered during the hearing, he had on 7 April applied to the Association for the position of branch organiser. That is a paid position. At that time membership of the Association did not extend to employees. It was not until January 1982 that rule 5 was amended to extend membership to "any Industrial Officer or Research Officer or other employee of the Association appointed by the Federal Council or any Branch Committee of Management."

On 5 May 1981 Mr. Lawrence was employed by the Association as its branch organiser in Darwin. In June he applied for membership of the Association. His application form is dated 2 June 1981. By reason of rule 7 of the Association's rules, once the branch secretary is satisfied as to the eligibility of an applicant and upon payment of the prescribed subscription or evidence that it will be paid, "he shall be enrolled as a member". Again, the precise date of Mr. Lawrence's enrolment did not appear but it was common ground that from early June he was accepted as a member of the Association.

Mr. Lawrence's application describes him as "Supervisor Food Processor". Between the word "Supervisor" and the words "Food Processor" the words "H'Cook" have been largely erased although they can be discerned. According to Mr. Lawrence, when he completed the form he described himself as "H'Cook". The word "Supervisor" was written at the time though he was not sure whether he or Mr. Ward, the branch secretary and witness to his application, actually wrote that word on the form. The words "Food Processor" were not written by him; he was not sure whether they were added at the time he completed the application. There was no other evidence of the circumstances surrounding the completion of the application form. It is clear enough that Mr. Lawrence originally described himself as "H'Cook" which was his usual occupation. He may have added the word "Supervisor" to this description. The words "H'Cook" were then deleted and thereafter the words "Food Processor" or "Supervisor Food Processor" substituted. The reason for this no doubt was that the Association's membership provision did not include a designation of head cook but did include one of supervisor food processing. I am satisfied that the change was made with the knowledge of Mr. Ward, that there was no attempt to mislead the Association and that it was apparently thought by the Association and Mr. Lawrence that in this way he could be enrolled as a member.

The Association now contends that Mr. Lawrence was and is not eligible for membership. That is the central issue of this application. Before I deal with it, some further reference to the history of this matter is necessary. The Association's rules provide for branch officers, one of whom is the branch assistant secretary. In the 1981 branch elections Mr. Lawrence stood for that position and, there being only one nomination, he was elected to office. The results of the election were announced at the annual general meeting held 17 November 1981 and it may be assumed that Mr. Lawrence took office on that date. It is apparent that the Association and Mr. Lawrence fell into disagreement. On 9 June 1982 he resigned from the position of organiser. On 7 July the Association issued a media release recording that the committee of management of the Northern Territory branch of the Association had that day declared vacant the position of branch assistant secretary. This action was said to have been taken following legal advice that Mr. Lawrence "was invalidly enrolled as a member of A.P.S.A.". It was acknowledged by counsel for the Association that the challenge to Mr. Lawrence's position as assistant branch secretary stood or fell according to whether or not he was validly enrolled as a member of the Association in June 1981. No other basis for attacking his occupancy of the office was suggested. As already mentioned, membership of the Association extends to a range of designated occupations. Head cook is not included. There are however designations in rule 5(g) of food processor (all grades) and supervisor food processing (not processor as appears in the application). Mr. Lawrence argued that this designation was apt to cover his duties as head cook in the hospital.

I reject that argument. Mr. Capp, regional director of the Commonwealth Public Service Board in Darwin, produced material showing the duties associated with those employed by the Commonwealth as a food processor or supervisor food processing. The work of a food processor is concerned with the preparation, processing and packaging of food and the role of supervisor food processing is to supervise those so engaged. According to Mr. Capp, the only persons employed by the Commonwealth on such duties are a small number working with the Department of Defence in Tasmania.

Mr. Boland, Assistant Public Service Commissioner of the Northern Territory Public Service, gave evidence concerning Mr. Lawrence's employment in that service. He tendered a duty statement for the position of head cook - Darwin Hospital. As one might expect, the duties of that position are in the main associated with ensuring that food is prepared, cooked and presented properly. They are quite different from those connected with food processing.

Mr. Lawrence then argued that during the period between February and April 1981 the work he was doing could be described as at times that of a storeman and at other times as that of a property officer, both designations to be found in rule 5 of the Association's rules. I do not find it necessary to decide whether if Mr. Lawrence had been performing the duties of one of those designated positions but under some rather different title, he would thereby be disqualified from membership. The position is that during the period between his transfer from the position of head cook until he took leave without pay, he performed a variety of duties and it is not possible to attach to him, during that period, any true job designation.

Section 144(1) of the Conciliation and Arbitration Act provides that a person employed in connection with an industry, or engaged in an industrial pursuit, is entitled to be admitted as a member of an organisation, being an organisation of employees in or in connexion with that industry or of employees engaged in that industrial pursuit. By reason of sub-s. (3), a person whose usual occupation is that of employee in an industry or engagement in an industrial pursuit, or a person who is qualified to be an employee in an industry or to engage in an industrial pursuit and desires to become such an employee or to so engage, shall be deemed to be employed in that industry or to be engaged in that industrial pursuit. But sub-s. (2) provides that sub-s. (1) does not entitle a person to be admitted as a member of an organisation "unless he is included in a category of persons who are eligible for membership of the organisation under the rules of the organisation . . . ".

In my view it does not assist Mr. Lawrence to ask whether he was employed in connection with the industry with which the Association itself was concerned unless he is included in the category of persons who are eligible for membership. Likewise s.171E does not assist him. In broad terms that section enables a person who has been treated by an organisation as a member to be admitted to membership as though he had been a member during the whole of the time he was so treated. But it is a requirement of the section that the person concerned be "eligible for membership", thus bringing the enquiry back to the rules of the Association.

The amendments made to the rules at the end of 1981 or early 1982 made Mr. Lawrence, as a branch organiser and employee of the Association, eligible for membership. Since he resigned from that position on 9 June 1982, he cannot now rely upon those amendments as an answer to the Association's application.

There is little doubt that, when Mr. Lawrence applied to join the Association in June 1981, he was accepted with the knowledge that he had in fact been working as a head cook and that he could not fairly be described as a food processor supervisor. It is equally clear that since that time disputes have arisen between the Association and Mr. Lawrence which have led to the bringing of this application. Mr. Lawrence produced several documents emanating from the Association which, he said, recognised him as a member. Unfortunately for Mr. Lawrence, it is well established that the rules of an organisation are mandatory and that estoppel cannot operate to preclude an organisation from relying upon its rules to determine validity of membership. Bielski v. Oliver (1958) 1 F.L.R. 258.

In the circumstances I am of the opinion that Mr. Lawrence was not, in June 1981, eligible for membership of the Association and that any eligibility he may have acquired by reason of his position as a branch organiser, was lost when he resigned from that position in June 1982. The Association is entitled to a declaration that he is not and was not in June 1981 entitled to be admitted to membership of the Association.

The Association also seeks a determination that Mr. Lawrence is not an officer bearer, a reference to the position of branch assistant secretary to which he was elected in 1981. The rules of the Association make it clear that only financial members may stand for office - see rule 55 relating to branch elections. If Mr. Lawrence was not eligible for membership of the Association, he was not eligible to stand for the position of assistant branch secretary.

But I am not satisfied that, within the framework of the present application, I can make a declaration regarding Mr. Lawrence's position as assistant branch secretary or make orders restraining him from entering upon the office, property and facilities of the Association. I shall hear from the parties regarding those matters.