Baillie v Tierney
[1995] IRCA 560
•29 September 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
IN THE MATTER OF
An application under s.218 of the Industrial
Relations Act 1988 by Ms. S. Baillie for an
Inquiry in relation to an election for offices
in the Automotive Food Metals & Engineering Union,
Vehicle Division, Victorian Region.
(Matter No. VI 5015/94)
An application by Ms. Gayle Tierney for a
declaration under s.260 of the Act.
(Matter No. VI 95/1269)
An application by Ms. S. Baillie for a
declaration under s.257 of the Act.
(Matter No. VI 95/1592)
REASONS FOR JUDGMENT
29 SEPTEMBER 1995 KEELY J.
There are three matters before the court, which were heard together. Matter No. VI 5015/94, filed on 24 November 1994 under s.218 of the Industrial Relations Act 1988 (Cth) ("the Act"), is an application by Ms S Baillie ("the applicant") for an inquiry into an election for offices in the Automotive, Food, Metals and Engineering Union ("the AFMEU"). On 22 November 1994 the returning officer declared that Ms G Tierney ("the respondent Tierney") was elected to the offices of Regional Secretary, Vehicle Division Victorian Region/Assistant State Secretary Victoria ("the offices"). Matter No. VI 95/1269 is an application by the respondent Tierney, seeking a declaration under s.260 of the Act, the details of which appear in paragraph 9 of her contentions, which is set out later in these reasons. Matter No. VI 95/1592 is an application by the applicant, Ms Baillie, for a declaration under s.257(1) of the Act that the application of s.256 "to the act of Ian Jones in purporting to enrol Gayle Tierney as a member of the [VBEF] on 4th July 1989 . . . would do substantial injustice".
The Vehicle Builders Employees Federation ("the VBEF") amalgamated with the Metals & Engineering Workers' Union on 8 February 1993 to form the AFMEU. The AFMEU on 8 February 1995, the first day of the final hearing, stated that it did not wish to make any submissions to the court.
The irregularity alleged by the applicant was that Ms Gayle Tierney, whose nomination for election to the offices had been accepted, was not eligible to be a member of the VBEF or a member of the AFMEU and accordingly was not eligible to nominate for election to the offices.
The contentions
The respondent Tierney in her contentions admitted each of the following contentions of fact and law by the applicant, filed on 23 December 1994:"1.The Applicant is and was at all material times a member of the Automotive, Food, Metals and Engineering Union ("AFMEU").
2.The Vehicle Builders Employees Federation of Australia ("VBEF") was registered as an organisation of employees pursuant to the Conciliation and Arbitration Act 1904 on the 5th January 1917 under the name, The Australian Coach, Motor Car, Tram Car, Wagon Builders, Wheelwrights and Rolling Stock Makers Employees Federation.
3.On the 8th February 1993 the VBEF amalgamated with the Metals and Engineering Workers' Union ("the amalgamation") and thereupon was deregistered.
4.The Metals and Engineering Workers' Union is now named the AFMEU.
5.In August 1993 the Returning Officer, Australian Electoral Commission ("AEC") called for nominations for a election to (amongst other offices) the offices of Regional Secretary, Vehicle Division Victorian Region/Assistant State Secretary Victoria ("the offices") of the AFMEU.
6.Ms Gayle Tierney was nominated for an election to those offices.
7.The AEC Returning Officer accepted Ms Tierney's nomination to those offices.
8.The applicant was the only other nomination for an election to those offices.
9.The AEC conducted the election for those offices between 28 October and 18 November 1994.
10.On 22 November 1994 Mr Neil Manning, Returning Officer AEC declared that Ms Tierney had been elected to those offices.
. . .
12.At all material times prior to the amalgamation the VBEF eligibility Rule was the Constitution Rule in Section 1 of the VBEF Rules."
The respondent Tierney denied each of the following contentions by the applicant:
"11.At all material times after the amalgamation the part of the AFMEU eligibility Rule which was relevant for election to offices was Rule 1E of the AFMEU Rules.
. . .
13.Prior to the amalgamation Gayle Tierney was not eligible for membership of the VBEF because at the time she was admitted to membership:
(a)she was an employee of the VBEF which employment did not make her eligible to become a member of the VBEF pursuant to its eligibility Rule, and
(b)she was not otherwise eligible to become a member of the VBEF.
14.In the VBEF Rules the expression "together with any persons appointed as officers of the Federation" in the VBEF Constitution Rule did not extend eligibility for membership to any person who did not hold an office as an officer within the meaning of the VBEF Rules and Gayle Tierney was not such a person.
15.Gayle Tierney's purported appointment as Secretary of the VBEF in or about December 1992 or January 1993 and her purported occupancy of that office thereafter did not then or thereafter make her eligible for membership of the VBEF and did not on amalgamation or thereafter make her eligible for membership of the AFMEU.
16.After the amalgamation Gayle Tierney was not eligible to be a member of the AFMEU.
17.In the alternative to paragraph 16 if Gayle Tierney was eligible to be a member of the AFMEU she was not eligible for membership pursuant to Rule 1E of the AFMEU Rules.
18.At the time of closing of nominations for election to the offices Gayle Tierney had not been a member of the AFMEU for not less than 3 years immediately proceeding that time as she had not been validly admitted to membership of the VBEF and was therefore not entitled pursuant to Rule 37(4) of the AFMEU Rules to have any period of membership of the VBEF prior to the amalgamation counted as membership of the AFMEU.
19.By reason of paragraphs 13 to 18 above Gayle Tierney was not eligible to be nominated for election to the offices."
The respondent Tierney also filed the following contentions, which were denied or not admitted by the applicant: -
"3.On 4 July 1989 the First Respondent completed an application for membership of [the VBEF].
Particulars
The application for membership is in writing and is in the possession of the Second Respondent.
4.On 4 July 1989 the Branch Secretary of the Victorian Branch of the VBEF completed the certificate endorsed on the First Respondent's completed Application Form.
Particulars
The certificate completed by the Secretary of the Victorian Branch of the VBEF is in writing and endorsed on the application form referred to in the previous paragraph and is in the possession of the Second Respondent.
5.On 4 July 1989 the First Respondent was eligible for membership of the VBEF because she was:
(a)a person appointed as an "Officer" of the VBEF within the meaning of that expression in the Constitution Rule in Section 1 of the VBEF Rules.
Particulars
The First Respondent was appointed as an Industrial Officer in the Victorian Branch of the VBEF on or about 26 June 1989. Full particulars of the duties and responsibilities attaching to that position are contained in paragraph 12 to 25 of the Affidavit of Ian Douglas Jones sworn and filed herein.
(b)an employee engaged in or usually engaged in the process, trade or business connected with or incidental to the manufacture, assembling or repairing of carriages, carts, wagons, trucks, railway cars, tram cars, motor cars, motor cycles, side cars, aircraft and other vehicles used in air transit and all other vehicles or parts thereof and whether in wood and/or metal, and/or other material.
Particulars
The First Respondent was engaged as an Industrial Officer in the Victorian Branch of the VBEF from on or about 3 July 1989. That employment was in a process, trade or business connected with or incidental to the matters described as the trade of vehicle building in the Constitution Rule in Section 1 of the VBEF Rules as at 4 July 1989.
. . .
[At the hearing Ms Tierney's counsel stated that sub-paragraph (b) was not pursued.]
6.In the premises by reason of the operation of Rule 20 of the VBEF Rules the First Respondent was at all material times between 4 July 1989 and 8 February 1993 a member of the VBEF and is now a member of the Second Respondent.
7.Further or alternatively, the act of the Secretary of the Victorian Branch of the VBEF on 4 July 1989 admitting the First Respondent to membership of the VBEF is taken to have been done in compliance with the Rules of the VBEF pursuant to Section 256 of [the Act]."
The rules
Section 1 of the VBEF rules, certified as at 20 April 1989, contained a rule which included the following:
"CONSTITUTION
The Federation shall consist of an unlimited number of persons elected as members in accordance with the Rules from --
Employees engaged in or usually engaged in the process, . . . together with any persons appointed as officers of the Federation and elected as members thereof." (Emphasis added)
In the rules of the AFMEU, certified as at 14 October 1994, rule 1, which was headed "1 - Name objects and constitution", contained the following provision:
"1EWithout in any way limiting or being limited by sub-rules 1A, 1B, 1C, 1D, 1F and 1G, the Union shall also consist of an unlimited number of employees engaged in or usually engaged in the process, trade or business connected with or incidental to the manufacture, assembling or repairing of carriages, carts, wagons, trucks, railway cars, tram cars, motor cars, motorcycles, sidecars, aircraft and other vehicles used in air transit and all other vehicles or parts thereof and whether in wood and/or metal and/or other material together with any persons appointed as officers of the Union and elected as members thereof."
The evidence as to Ms Tierney's appointment
The first issue is whether the Victorian Branch Committee of Management, at its meeting on 23 May 1989, appointed the respondent Tierney as an "officer of the Federation" within the meaning of those words, in the VBEF constitution rule. The minutes of that meeting included the following:
"Secretary's Report
I. Jones [the Assistant Branch Secretary who was Acting Branch Secretary] reported on the Hendersons dispute. He further reported on the FVIU/ ACTU meetings and inadequacies in regard to the projected wage outcome and the need for a co-ordinated approach throughout the industry. He then outlined discussions within the office amongst Organisers and reported that it was the view of all concerned that the Union should employ an Industrial Officer so the Union could achieve its industrial agenda.
It was moved I. Jones seconded P. Heaphy that Ms Gayle Tierney is hereby appointed as an Officer of the Federation to be employed in the position of Industrial Officer with the Victorian Branch. The Secretary is to advise Ms. Tierney that she is required to become a member of the Union."
I accept Mr Jones' evidence that that resolution was carried by the Victorian Branch Committee of Management. It will be noted from Mr Jones' report to the Committee that he:
". . . then outlined discussions within the office amongst Organisers and reported that it was the view of all [Organisers] concerned that the Union should employ an Industrial Officer so the Union could achieve its industrial agenda." (Emphasis added)
The Branch Committee of Management resolution did not define the functions, powers or responsibilities of an Industrial Officer. Although the resolution stated that "Ms Gayle Tierney is hereby appointed as an Officer of the Federation", it will be noted that those words were immediately followed by the words "to be employed in the position of Industrial Officer with the Victorian Branch" (emphasis added). In my opinion the resolution did not create or purport to create an office (as distinct from a position) of Industrial Officer.
A letter, dated 26 June 1989, from the Acting Branch Secretary to Ms Tierney offered her the position of Industrial Officer to commence on 3 July 1989. It did not refer to her functions, powers or responsibilities as Industrial Officer nor did it state that she had been appointed as an "officer" of the Federation. Its text was as follows (emphasis added):"Re: Industrial Officer Position
Further to our earlier discussions I now have pleasure in offering you the position of Industrial Officer at the Victorian branch of the Vehicle Builders' Union. As agreed, your commencement date will be 3rd July, 1989.
Please telephone me confirming you ability to take up this position. I confirm my advice to you that you will be required to become a member of the union.
I look forward to a long and fruitful working relationship.
Yours sincerely,
(signature)
Ian JonesActing Secretary"
I accept the evidence of Mr Jones that on 4 July 1989, the respondent Tierney completed a membership application form in his presence and that on that day he completed the certificate endorsed on the form.
Ms Tierney's work, duties and responsibilities
The first written submission by the respondent Tierney stated (par 35) that a "question has arisen as to whether the Court should have regard to the duties which Tierney performed following her appointment, for the purposes of determining the nature of her office". Having considered that matter I have decided that, in the circumstances of this case, including the evidence of Mr Jones, Ms Tierney and Ms Baillie, evidence of the duties was admissible for the purpose of determining whether Ms Tierney was appointed as an officer of the Federation.
On the evidence, including the rules, I find that:
(i)Ms Tierney had no right to attend meetings of the Branch Committee of Management but was invited to do so from time to time either e.g. to report to the Committee members or to advise them on matters they were considering at a meeting.
(ii) she had no power to sign or counter-sign cheques.
(iii)she had no right to move or second any motion at Branch Committee of Management meetings.
(iv)she had no right to vote at any Branch Committee of Management meeting at which she was in attendance and was not "a voting member of a collective body" of the VBEF or the Branch (s.4(1)).
(v)she had no right to vote on making or altering rules.
(vi)she had no right to vote on the enforcement of rules.
(vii)she had no right to vote on the determination of the policy of the branch, which was a matter for the Committee of Management, but she made suggestions as to what the policy might be and gave advice as to principles (e.g. the Structural Efficiency Principle), its meaning and how it might be applied in particular circumstances.
Notwithstanding Mr Jones's evidence that Ms Tierney "played an active role as a member [of the Branch] worked as Mr. Jones' `right hand person'" and worked "very long hours" and his evidence stressing the importance of her work to the Branch, in my opinion she was not appointed an officer of the Branch or an officer of the Federation. It may be noted that Branch rule 5 provided that in "the absence of the General Secretary or Assistant Secretary" it was "lawful for the Senior Organiser to carry out the duties of Acting Secretary". Ms Tierney's counsel accepted that the Branch Committee of Management could not ignore that rule. In my opinion that rule implied that the Branch Committee of Management had no power to appoint Ms Tierney, who was not "the Senior Organiser" and was not appointed as an Organiser, "to carry out the duties of Acting Secretary".
Specific provisions in the rules as to officers and officials
At the time of the decision on 23 May 1989 to purportedly appoint the respondent Tierney "as an Officer of the Federation to be employed in the position of Industrial Officer with the Victorian Branch" ("the appointment"), the 1989 VBEF rules contained a number of provisions relating to "officers" - see Federal rules 2(c) and (n); 5(a), 16, 28A(d) and (f), 28B(b), 29(f) and (g), 31(b)(ii) and (iii). It may be noted that the Federal rules also referred to:
"paid officials" (rule 31(b)(iv))
"full time Branch official" (rule 31(b)(v));
[Branch] "officials or office staff" (rule 32(a)(iv));
"paid officials or office staff of the Branch" (rule 32(d)).
In addition Federal rules 39, 40, 41, 42, 43, 44, 45 and 46 related to Branches and Sub-Branches of the VBEF. It was common ground that neither the Federal rules nor the Branch rules referred to the appointment or election of an "Industrial Officer".
"Other officers as may be deemed necessary"
Federal rule 40 specified the "Officers of each Branch" but then added "and such other officers as may be deemed necessary for the conduct of the Branch". I accept the submission by the applicant's counsel that the words "as may be deemed necessary for the conduct of the Branch" meant "as may be deemed by the Federal Council"; it was "the supreme governing body of the Federation" (Federal rule 1(a)). As it was only required to meet once in each year (Federal rule 9(a)), the power to deem it "necessary" could probably have been exercised by the Executive Committee if it thought "fit" under Federal rule 13(b); but it is not necessary to express a concluded opinion on that question. On the evidence it is plain that the decision on 23 May 1989 by the Branch Committee of Management to appoint the respondent Tierney was made on its own initiative, without any decision by the Federal Council or the Executive Committee under Federal rule 40 deeming it "necessary for the conduct of the Branch" that the "Officers of [the] Branch" should have added to their number the office of Industrial Officer.
In my opinion the Branch Committee of Management had no power under the Federal or Branch rules to deem it "necessary for the conduct of the Branch" that the Branch officers specified in Federal rule 40 should have added to their number the new office of Industrial Officer. On that basis Ms Tierney was not validly appointed as an additional officer of the Victorian Branch within the meaning of that rule.
In my opinion there is a further reason why she was not appointed as an "officer" of the Federation. Her purported appointment to the "position of Industrial Officer with the Victorian Branch", even if it had been valid, would not have resulted in her being appointed an officer "of the Federation" - as distinct from the Branch. In Federal rule 40 the words "as may be deemed necessary for the conduct of the Branch" (emphasis added) tend to counter the suggestion that the officer "so deemed necessary for the conduct of the Branch" is to be an officer "of the Federation".
The structure of the Federal rules
There are two separate questions. Whether the Branch Committee of Management had power under the rules (1) to decide that another Branch Officer was "necessary for the conduct of the Branch" and to appoint the respondent Tierney as an officer of the Branch and (2) to appoint her as an officer "of the Federation". The opinions which I have expressed, as a matter of construction of Federal rules 2 and 40, as to those questions gain some support from a consideration of the structure of the Federal rules, including the Federal rules relating to Branches, as is illustrated by the following provisions:
Federal rule 40 provided, immediately after permitting a decision that there should be "such other officers as may be deemed necessary for the conduct of the Branch", that each "such [additional] officer must have been a member of the Federation for at least 2 years . . . "
The Branches are subject to the Federation, as is made very plain by the following rules:-
(i)The Federal Council is the "supreme governing body" (Federal rule 1(a)).
(ii)It has power to "formulate the policy . . . in all matters affecting the interests of its members" (Federal rule 2(a)).
(iii)It has power to "repeal, alter or add to the Rules" (Federal rule 2(b) - see also the provision in Victorian Branch rule 27A as to where "pursuant to Federal Rule 42 any Branch desires the Federal Council to amend or rescind existing Rules . . . ").
(iv)It has power to hear and determine appeals from any decision made within a Branch affecting the rights of any members (Federal rule 2(f)).
(v)It has power "to call any meeting of any Branch" - (Federal rule 2(g)).
(vi)It has power to "make any necessary approach to . . . State
. . . Arbitration Courts . . . " (Federal rule 2(h)).
(vii)"All Branches . . . shall conform to the rules of the Federation".
(viii)The power given to the Branches to make rules is plainly subject to the overriding power of the Federal Executive Committee by reason of Federal rule 42 which provides that:
" 42. BRANCH RULES
Each Branch may formulate Rules and make amendments thereto to govern its own affairs provided that such rules shall not be inconsistent with these Rules and provided further that no new Branch Rule or amendment to any existing Branch Rules shall be lodged with the Industrial Registrar to be certified before it has been reported to the Executive Committee."
(ix)"Industrial Agreements . . . of a local character . . . may be executed . . . provided it is ratified by the Federal Executive" (Federal rule 47(b)).
(x)A "local question" can only be submitted to a State Industrial Tribunal after obtaining approval from the Federal Executive (Federal rule 48(c)).
(xi)If the Branch Officers are unable to settle a dispute "within the territory of any Branch" the "Branch Secretary shall at once report the matter to the Federal Secretary who . . . " (Federal rule 46(a)).
In my opinion the structure of the rules, and the extent to which the exercise of the powers of the Branch was expressly subject to approval or ratification by the Federal Council or the Executive Committee, coupled with the powers of the Federal Council to hear appeals, to call meetings of the Branch and to approach State Arbitration Courts, give some support to the conclusion expressed above, namely, that the Victorian Branch Committee of Management in May 1989 had no power, express or implied, to (a) appoint the respondent Tierney as an "other" officer of the Branch (see Federal rule 40) or (b) to appoint her as an "officer of the Federation".
Landeryou v. Taylor
The court was referred to the decision of the Commonwealth Industrial Court in Landeryou v Taylor and Others (1969) 15 FLR 147, a decision which is of persuasive value but is not an authority binding on the Industrial Relations Court of Australia. With all proper respect for the reasons for judgment of Dunphy and Joske JJ in that case, I respectfully prefer the reasons for judgment of Spicer CJ and agree with the following passages from the Chief Judge's reasons (emphasis added):
(at p.147-148) "It is clear that at the time when the claimant purported to become a member of the organization he was not qualified to do so unless he had, in the terms of r.3 of the federal rules and r.2 of the branch rules, been `appointed' an officer.
I am unable to accept a definition of the word `officers' in these rules which would embrace persons who are mere employees of the organisation.
It is not difficult to discover the origin of the phrase `who have been appointed officers and admitted as members of the Union'. They are obviously designed to take advantage of the provision in s.132 (1) (b) of the Commonwealth Conciliation and Arbitration Act and should in my opinion be interpreted in the sense in which the phrase was introduced into the Act by Act No. 18 of 1914, s.13. It seems to me that if the word `officers' in the rule has a wider meaning than it properly bears in s.132 (1) (b) it would exceed the range of membership authorized by that subsection and would to that extent at least be invalid.
I agree that the word `officers' in that subsection is not necessarily to be limited by the definition of the word `office' which now appears in s.4 of the Act. That section was introduced at a much later date and has particular relationship to the provisions of Pt. IX of the Act.
Had the legislature intended to authorise the admission to membership of employees of an organization it would have expressly so provided. In using the word `officers' it was employing a term of more limited application. True it is that the words `office' and `officer' are words of indefinite content, but they do, I think, indicate a position or the holder of a position which carries with it some administrative or executive duties or some substantial degree of responsibility.
There are a number of decisions of this Court in which the terms `office' and `officer' have been considered. The first reported decision is Pegg v. Taylor (1959) 1 F.L.R. 274, in which Dunphy J., in referring to the word `office', said [at 282]: `The position must carry with it some administrative or executive duties or some substantial degree of responsibility'. See also Re Elections for Offices in Amalgamated Engineering Union (Australian Section) (1961) 3 FLR 63 at pp. 66, 70."
(at 150)"The most recent decision is that in Rounsevell v. Mitchell, (1968) 11 F.L.R. 414, in which a court consisting of Dunphy J., Kerr J. and myself held that an industrial officer was not an officer within the meaning of the rules of the Australian Workers' Union. At pp. 430-431 of the joint judgment the following appears:
`Section 132 (1) (c) of the Act makes a special provision which would entitle a union to have rules permitting officers of the union to be members and this organization, in r.6, has such a provision to the effect that `all persons appointed officers of the union shall be entitled to be and become a member'. By r. 4 (e) `officer' is defined to `include the president, vice-presidents, general secretary, branch president, branch trustees, branch secretary, district secretaries, the president and the secretary of the mining division of the Westralian branch, branch councillors and organizers'.
All of these offices are elective offices, although, in the case of organizers, some organizers may be appointed. To be elected to any of them, or to be appointed an organizer, a person must already be a member of the union.
. . .We do not think that an employed industrial officer would hold an office within the meaning of `office' as defined in r.4, nor that he is an officer within r.6. It is true that `office' is defined by r.4 in an inclusive way, but all the offices mentioned are elective offices within the qualification referred to previously as to organizers. We think that an employee employed from time to time to handle industrial matters is not an `officer' of the union.'"
Spicer C.J. also said (at 151): "There is nothing in the decisions to support the conclusion that an employee as such can be an officer."
Counsel for the respondent Tierney referred to the reasons for judgment in a number of decided cases, including the following passage in those of Gray J in Ransley v. Australian Public Service Association (Fourth Division Officers) Tasmanian Branch (1985) 12 IR 55 at 66: "It seems to me to be appropriate that the word `officer' in s 132 should be interpreted broadly, rather than narrowly, so that organisations may if they choose to do so, offer to their employees in positions of responsibility the benefits of membership."
With the greatest of respect for his Honour's opinion I am unable to agree with the statement ". . . that organisations may if they choose to do so, offer to their employees in positions of responsibility the benefits of membership". I agree with Spicer CJ in Landeryou (at 147, quoted earlier) that "the word officers [does not] embrace persons who are mere employees of the organisation". I would add "even if their work is very important to the organisation and they have been appointed to positions called `Industrial Officer' or `Research Officer'".
On the evidence and the rules, in my opinion the respondent Tierney was not appointed as an officer of the Victorian Branch of the VBEF. She was offered and accepted "the position of Industrial Officer" but that was as an employee - not as an "officer". If, contrary to that opinion, she was validly appointed as an officer of the Branch, she was not validly appointed as an officer of the Federation. It follows that she did not become eligible to be a member of the VBEF at that time and her purported admission to membership in 1989 was invalid.
Whether s.256(1) validated Ms Tierney's membership
In the alternative to the above submissions, Ms Tierney sought to rely upon s.256(1), which relevantly provided as follows:
"Subject to this section and section 257, after the end of 4 years from:
(a)the doing of an act:
. . .
(ii)by a person holding or purporting to hold an office or position in an organisation or branch and purporting to exercise power conferred by or under the rules of the organisation or branch;
. . .
(b) . . . the appointment or purported appointment of a person, to an office orposition in an organisation or branch; or
(c). . .
the act . . . shall be taken to have been done in compliance with the rules of the organisation or branch."
Ms Tierney contended that s.256 of the Act operated automatically without any application by her "to validate [her] membership of the VBEF and the AFMEU from 4 July 1989 to the present time". Her counsel's written submission included the following submissions:
"46.The act in question in this case is the act of the Secretary under VBEF Rule 20 of admitting Tierney to membership. It is submitted that the requirements of the Secretary under the Rule are no mere formalities but are of substantive significance in that, upon performance, an Applicant is deemed to be a member of the Union.
47.This very Rule was considered by Von Doussa J. in Lane v. Arrowcrest (1990) 99 A.L.R. 45, 59-61. At 60, His Honour states:
`It will be noted that Rule 20(b) directs that the Branch Secretary "shall" complete the Certificate upon receiving the completed application. Notwithstanding this mandatory language, I think that Rule 20(b) should not be construed so strictly that it deprives the Branch Secretary of any power to refuse to complete the Certificate. Under Section 261(1) of the Act a person eligible to membership `is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership: (a) to be admitted as a member of the organisation; . . . '.
Rule 20(b) should be construed so as to permit the Branch Secretary to decline to complete the Certificate if he is of the opinion that an Applicant is not eligible for membership under the eligibility Rules, or is of bad character."
48.The [act] of the Secretary in certifying under Rule 20(b) is an [act] of the kind specified in Section 256(1)(a)(ii). It is invalid if it is done in respect of a person who is ineligible for membership. It is analogous to the election or appointment of a person to an office for which that person is ineligible (see Section 256(1)(b)).
49.It is submitted that the certification, which has the effect of admitting a person to membership, can be validated in the same way as the election or appointment of an ineligible person to office. In both cases, it is not the eligibility that is cured but the defective installation into membership/office.
50.It was said that the validation could not be used to overcome an ineligibility. In fact it was used for that purpose in Egan v. Harradine (1975) 25 F.L.R. 336. At 351 Joske J. sets out a ruling made by the Court in respect of the validation of Mr. Egan's eligibility to be elected. It appears that there was a dispute both as to his membership, and as to the existence of the Branch as a Branch of the Organisation. The Court determined that the effect of the Section was to conclusively determine that there was such a Branch in existence at the relevant time, and also to conclusively determine that Mr. Egan, at the time of his election as a Delegate, was a member of the Branch. It is submitted that the decision in that case is on all fours with the present case."
It will be noted that counsel for the respondent Tierney relied upon "the act of the Secretary under VBEF Rule 20 of admitting Tierney to membership" and submitted that "upon performance [of that act] an Applicant is deemed to be a member of the Union" (para 46). Rule 20 relevantly provided as follows:
" Membership
20. Admission to Membership
(a)Any eligible person who desires to become a member of the Federation shall sign a completed application form in the presence of a Branch Secretary or Sub-Branch Secretary or other person authorised by the Branch Secretary or Sub-Branch Secretary to witness the same.
(b)Upon receiving the completed application form the Branch Secretary or (where it is appropriate that the applicant should be attached to a Sub-Branch) the Secretary of the relevant Sub-Branch shall complete the certificate endorsed thereon and the applicant shall thereupon be deemed to be a member of the Federation and shall be liable to pay all fees contributions fines or dues payable under the rules.
. . . "
I accept her counsel's written submission (paragraph 45) that the purpose of s.171F, the predecessor of s.256, "is to relieve organisations of the burden of having their past administration examined in minute detail, and of old invalidities having continued consequences" - per Gray J in Geneff v. Peterson (1986) 19 I.R. 40 at 76.
However, in rule 20(b) the words "be deemed to be a member of the [VBEF]" do not assist Ms Tierney's case because in my opinion a rule of a registered organisation cannot deem a person to be a member if that person was not eligible to become a member under the VBEF Constitution rule at the material time.
I agree, with respect, with the following passage, quoted by her counsel, from the reasons for judgment of von Doussa J in Lane v Arrowcrest (1990) 99 ALR 45 at 60. "Rule 20(b) should be construed so as to permit the Branch Secretary to decline to complete the certificate if he is of the opinion that an Applicant is not eligible for membership under the eligibility Rules, or is of bad character." However, in my opinion the statement that the Secretary could "decline to complete the certificate if . . ." does not support Ms Tierney's submission (paragraph 48) that the act of the Secretary in certifying under Rule 20(b), if invalid by reason of the person being "ineligible for membership", is an act which is validated by s.256(1)(a)(ii). The Secretary's certificate that Ms Tierney "was enrolled as a member" does not certify that she was "eligible" to become a member. I am unable to accept the submission that the mere fact that the Secretary had signed a certificate that a person, had been enrolled as a member could support the validation under s.256 of the admission to membership of a person who was not eligible to become a member under the VBEF Constitution rule. The Act expressly required that the VBEF, as an organisation registered under the Act, have a rule specifying the conditions of eligibility for membership of the organisation. That rule was contained in Section 1 of the 1989 VBEF rules and the relevant paragraph is set out earlier in these reasons.
I accept the submission that the act by Mr Jones, as Acting Branch Secretary, constituted an act "by a person . . . purporting to exercise power conferred by or under the rules of the organisation or branch" within the meaning of s.256(1)(a)(ii) of the Act. However, that does not assist Ms Tierney because the rules did not confer on the Secretary a power to certify that she was eligible to be a member of the VBEF. As noted earlier, his certificate only certified that she was "enrolled" as a member; it said nothing as to whether she was eligible to be a member at the time of her purported admission to membership. In my opinion the rules (including rule 20(b)) did not confer and - could not, as a matter of law, have conferred - upon the Branch Secretary the power to certify that the person was eligible to be a member. As to the general structure of the Act requiring that persons who are seeking to become members of an organisation must be eligible to be members, see s.195(1)(a) of the present Act which requires that the rules of an organisation "shall specify . . . the conditions of eligibility for membership". In addition s. 261(1) of the Act confers on a person eligible to be a member of an organisation a right (subject to certain conditions) to be admitted as a member, but expressly provides that subsection (1) "does not entitle a person to remain a member of an organization if the person ceases to be eligible to become a member and the rules . . . do not permit the person to remain a member".
In my opinion s.256 does not operate to validate the purported admission to membership of a person who at the material time was not eligible to become a member. The section, in describing the matters that may be validated, does not use the word "membership" or the words "eligibility for membership". Instead it refers to (A) "the doing of an act by . . . a collective body of an organisation or branch or by a person . . . purporting to hold an office in an organisation or branch and purporting to exercise power . . . conferred under the rules . . ." (see sub-section (a)(i) and (ii)), (B) the "election" or "appointment" of persons (see (1)(b)), and (C) the "making" or "altering" of rules (see (1)(c)). The section appears to be designed to validate (subject to certain conditions, including the elapse of 4 years) certain acts, elections, appointments and rule alterations by persons who purported "to exercise power conferred by or under the rules of the organisation or branch".
Those provisions of s.256 are to be contrasted with the provisions of s.260, which expressly confer an entitlement "to be admitted to membership and treated by the organisation and its members as though the person had been a member during the whole of the time when the person acted as, and was treated by the organisation as, a member" upon a person who -(A)is at the date of the application eligible for membership and
(B)is not a member and
(C)"has . . . acted in good faith as a member" and
(D)has "been treated by the organisation as, a member"
Sections 256 and 260 were enacted at the same time, as part of a scheme of "validating provisions for organisations". In my opinion Parliament's intention was that the specific and detailed provisions in s.260 were to be the only validating provisions relating to a person who had "acted in good faith as, and been treated by the organisation as a member". As a matter of construction of the section in its context, in my opinion s.256 was not intended to operate in such a way as to validate Ms Tierney's membership.
The attempted reliance upon Egan v. Harradine
I am unable to accept the submission by Ms Tierney's counsel that the Australian Industrial Court in Egan v. Harradine (1975) 25 F.L.R. 336, in a ruling on the relevance of evidence (set out at 351 and 360), decided that s.171F [now s.256] could "be used to overcome an ineligibility" and that it validated "Mr. Egan's eligibility to be elected" - see paragraph 50 of the written submission by Ms Tierney's counsel (set out earlier). I agree with the submission in that paragraph "that there was [in Egan's case] a dispute both as to his membership, and as to the existence of the Branch . . . The Court determined that the effect of the Section was to conclusively determine that there was such a Branch in existence at the relevant time, and . . . that Mr. Egan, at the time of his election as a Delegate was a member of the Branch". However, in my opinion the court did not determine that s.171F (now s.256) validated the membership of a person who was not eligible for membership.
The ruling by the Australian Industrial Court is set out in the reasons for judgment of Joske J at 351 (and in those of Sweeney and Evatt JJ at 360) and is as follows:
"Mr. Egan was appointed federal secretary/treasurer of the association in 1970, a point admittedly four years prior to any relevant date. Section 171F (i) provides that upon the expiration of four years from the election or purported election or appointment or purported appointment of a person to an office in an organization the election etc. shall for all purposes be deemed to have been done in compliance with the rules of the organization. In our view the section adjudges or determines conclusively that the appointment was made in compliance with the rules. Its effect is that if in fact there was not compliance with the rules, the section notionally alters those facts.
The rules require that the appointment to the office be made `by and from the delegates to the federal council'. Egan was present as a delegate from the New South Wales branch of the association. In our view the effect of the section is conclusively to determine that there was such a branch in existence at that time.
We have considered the effect of the rules of the branch and the organization and, in our view, their effect is to require that a delegate from a branch be at the time of appointment as a delegate a member of the branch which appoints him. In these circumstances the section again conclusively determines that Mr. Egan at the time of his election as a delegate was a member of the branch.
It follows that cross-examination seeking to establish either that the branch did not exist at the time of Mr. Egan's appointment as federal secretary/treasurer or that at that time he was not a member, is not relevant and will not be allowed."
Notwithstanding the statement in the ruling that s.171F "conclusively determines that Mr Egan . . . was a member of the branch", in my opinion it is clear from the report that the particular issue raised in the proceedings was whether he had ever been admitted as a member of the union - not whether he had been eligible to be a member. There was an issue of fact as to whether the court should accept Mr Egan's evidence that he "did sign and hand in a membership card". Joske J (at 350) expressly accepted Mr Egan's evidence that he had done so, saying that "he gave his evidence with the certitude of rectitude and withstood strenuous cross-examination with undisturbed calm. The claim that he was not a member fails on the evidence". Sweeney and Evatt JJ (at 361) said that "evidence was led to establish that irrespective of s.171F (now s.256) Egan was a member" and agreed with the judgment of Joske J "on this aspect" i.e. their Honours agreed that, irrespective of s.171F, the evidence established that Mr Egan was a member. On the report it appears that no issue was raised as to whether Mr Egan was eligible to be a member of the Union. Although Joske J (at 350) said that "Egan had the necessary qualification as regards his employment to be a member" his Honour did not suggest that there had been any dispute as to his qualification or eligibility "to be a member". The issue before the Australian Industrial Court was whether Mr Egan had ever become a member - not whether he was ineligible to become a member at the time of his admission to membership.
In my opinion in Egan v. Harradine the court did not deal with the question of whether s.171F (now s.256) could validate the membership of a person who was ineligible at the time of his or her purported admission to membership. I am unable to uphold the submission by the respondent Tierney's counsel that Egan's case is "on all fours with the present case".
If, contrary to my opinion, the Australian Industrial Court decided that s.171F (now s.256) validated the membership of a person who was not eligible for membership at the time when he or she purportedly became a member, then, with the greatest respect to their Honours, in my opinion that decision was not correct and should not be followed. It is not a decision which is binding upon this court. It may be noted that, although it was quoted in the court's reserved judgment it was a ruling given orally during cross-examination, upon an objection being taken to the relevance of questions.
In my opinion s.256 of the Act did not operate to validate Ms Tierney's purported membership of the VBEF.
Matter No. VI 95/1592
This was an application by Ms Baillie, filed 13 February 1995, for a declaration under s.257(1) of the Act that the application of s.256 of the Act "to the act of Ian Jones in purporting to enrol Gayle Tierney as a member of the [VBEF] on 4th July 1989 . . . would do substantial injustice having regard to the interests of . . . ". In the light of my decision that s.256 did not validate Ms Tierney's purported membership of the VBEF, there is no occasion for such a declaration and Ms Baillie's application will be dismissed.
Matter No. VI 95/1269
The basis of this application by Ms Tierney under s.260 of the Act, filed 25 January 1995, was set out in paragraphs 8 and 9 of her contentions, which were as follows:
"8.Further or alternatively:
(a)at all material times between 4 July 1989 and 8 February 1993 the First Respondent acted in good faith as and was treated by the VBEF as a member of the VBEF;
(b)at all material times on and after 8 February 1993 the First Respondent acted in good faith and has been treated by the Second Respondent as a member of the Second Respondent;
(c)on 5 December 1994 the First Respondent commenced employment as a Wet/Dry Rubber in a vehicle repair business - Rosemar Panels ("the casual employment");
(d)by reason of the casual employment the First Respondent was at all material times on and after 5 December 1994 eligible for membership of the Second Respondent pursuant to Rule 1E of the Second Respondent's Eligibility Rule;
(e)on 6 December 1994 the First Respondent applied to be admitted as a member of the AFMEU [Particulars given];
9.By reason of the matters outlined in the foregoing paragraph the First Respondent pursuant to s.260 of the Act is entitled to be admitted to membership of the Second Respondent and treated by the Second Respondent and its members (including the Applicant) as though the First Respondent had been a member during the whole of the time when the First Respondent acted as and was treated by the VBEF and the Second Respondent as a member of the VBEF and the Second Respondent."
On the evidence I find that Ms Tierney has established each of the facts alleged by her in sub-paragraphs (a), (b), (c), (d) and (e) of paragraph 8 of those contentions. I also find that:
Ms Tierney was not "appointed an officer" of the VBEF, was never eligible to be a member of VBEF and never became a member of the VBEF but has been eligible for membership of the AFMEU since 5 December 1994;
S.253Q(3) of the Act did not operate to make her a member of the amalgamated organisation, the AFMEU;
Ms Tierney is not a member of the AFMEU or a person who has been expelled from the AFMEU.
Section 260(1) provided as follows:" Where:
(a)a person who is eligible for membership of an organisation (other than a member of the organisation or a person who has been expelled from the organisation) applies to be admitted as a member of the organisation; and
(b)the person has, up to a time within one month before the application, acted in good faith as, and been treated by the organisation as, a member;
the person is entitled to be admitted to membership and treated by the organisation and its members as though a person had been a member during the whole of the time when the person acted as, and was treated by the organisation as, a member and during the whole of the time from the time of the person's application to the time of the person's admission."
In my opinion Ms Tierney is entitled under s.260(1) to be admitted to membership of the AFMEU and treated by the AFMEU and its members, including the applicant, as though [she] had been a member during the whole of the time when she acted as, and was treated by the AFMEU as, a member and during the whole of the time from the time of her application to the time of her admission i.e. from 8 February 1993.
Counsel for Ms Tierney sought to rely upon Federal rule 37(4) of the AFMEU rules, certified on 14 October 1994, which read as follows
"4.On and from the date upon which the amalgamation of the Metals and Engineering Workers' Union (MEWU) and the Vehicle Builders Employees' Federation of Australia (VBEF) takes effect, all persons who were members of the MEWU and the VBEF on the day immediately preceding such date shall be and become and be treated as members of the Union and where, pursuant to any of these Rules a period of membership of the Union is a qualification for nomination and/or election to any office, any period of membership of the MEWU or VBEF immediately preceding such date shall be counted as membership of the Union."
That rule does not assist Ms Tierney because, on the opinions I have expressed above, she never had "any period of membership of the . . . VBEF". In addition, she was never "entitled to be admitted to membership of the VBEF" under s.260 of the Act because, although she had "acted in good faith as, and been treated by the [VBEF] as, a member", she was not eligible for membership of the VBEF at the time when she was purportedly admitted as a member on 4 July 1989 or at any later time. The only basis on which it was contended before the court that Ms Tierney was eligible for membership of the VBEF was that she was "a person appointed as an officer of the VBEF". It was not contended that she was eligible by reason of the nature of her employment - see paragraph 5 of her contentions filed on 23 December 1994 (set out earlier), and in particular paragraph 5(b) which had contended that she was so eligible by reason of her employment as Victorian Branch Industrial Officer, but, as her counsel told the court, that contention "was not pursued".
Rule 45.30 of the AFMEU rules required that in order to be nominated for the office of Regional Secretary, Vehicle Division, Victorian Region, the nominee must "have been a member of the [AFMEU for] not less than 3 years immediately preceding the closing date for nominations". An order under s.260 in Ms Tierney's favour would not take her membership back further than 8 February 1993. That difficulty could only be overcome if in s.260(1) the word "organisation" were to be construed as including any previously registered organisation which had amalgamated with the organisation i.e. relevantly construed as including the VBEF which had amalgamated with the AFMEU.
Counsel for the respondent Tierney referred to s.15AA of the Acts Interpretation Act 1901 (Cth) which provides:
"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."
They submitted:
"that the purpose and object of the [Industrial Relations] Act in relation to the amalgamation of organisations is that the amalgamated organisation is constituted the successor in all material respects to the amalgamating organisations, and . . . where other provisions of the Act refer to an organisation, it is to be so treated unless there is an express contrary intention disclosed. . . . in Section 260(1) `the organisation' is intended to refer to the amalgamated organisation and its predecessor compendiously, and in that way to be consistent with and promoting of the purposes or objects of the Act" (see the written submissions filed 22 February 1995 and 2 March 1995).
Counsel relied upon the following passage in Cooper Brookes (Wollongong) Pty. Ltd. v. F.C.T. (1981) 147 C.L.R. 297 at 321 where Mason and Wilson JJ said -
"But the propriety of departing from the literal interpretation is not confined to situations described by these labels [`absurd, extraordinary, capricious, irrational or obscure']. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation as it conforms to the legislative intention."
It will be noted that those submissions rely heavily upon two matters. The first is "the purposes or objects of the Act" and the second is "the choice between two strongly competing interpretations" (per Mason and Wilson JJ at 321). As to the first, I am unable to accept the submission "that the purpose and object of the Act in relation to [amalgamations] is that the amalgamated organisation is constituted the successor in all material respects to the amalgamating organisations". The Act does not expressly say so and in my opinion it does not imply such an object or purpose. Such an express provision could easily have been included but the Parliament refrained from doing so. Instead, it expressly enacted a large number of sections dealing with specific situations. As to those sections it is sufficient to quote paragraph 71 of the first written submission by Ms Tierney's counsel, which gives the following nine examples:-
"(a)Section 253Q(3)(d) provides for the automatic transfer of the members of the amalgamating organisation to the proposed amalgamated organisation on the amalgamation day;
(b)Section 253R similarly provides for the transfer of all assets and liabilities;
(c)Section 253T provides in paragraph (a) that the proposed amalgamated organisation and its members shall become successors to the amalgamating organisation in all awards and orders of the Commission, and significantly, paragraph (b) provides that any reference in the awards or orders to the amalgamating organisation shall be deemed to be a reference to the proposed amalgamated organisation;
(d)Section 253U preserves the force and effect of any instrument to which an amalgamating organisation was party, and sub-Section (2) deems any reference to that organisation to be a reference to the proposed amalgamated organisation;
(e)Section 253V preserves any proceedings to which the amalgamating organisation was a party, and permits them to continue as if the proposed amalgamated organisation `were, and had always been, the (amalgamating) organisation';
(f)Section 253Y provides for the proposed amalgamated organisation to take-over title to any real property of the amalgamating organisation;
(g)Section 253Z makes similar provision in relation to charges;
(h)Section 253ZA makes similar provision in relation to Share Certificates and Debentures;
and
(i)Section 253ZB makes similar provision in relation to Certificates of Ownership of Other Assets."
In my opinion Parliament did not intend "that the amalgamated organisation is constituted the successor in all material respects to the amalgamating organisations", as contended by counsel. The submission that that was "the purpose and object of the Act" cannot be upheld.
As to the second matter I am unable to accept that the court is faced with a choice "between two strongly competing interpretations". In my opinion there are not "two strongly competing interpretations". The word "organisation" is defined in s.4(1) of the Act as meaning "an organisation registered under this Act". The VBEF is not such an organisation. An "organisation" is quite different from a body which was registered under the Act but which has been de-registered by reason of s.253Q(3)(c) of the Act, which provides that the designated Presidential Member of the Australian Industrial Relations Commission must de-register it. In my opinion the word "organisation" in s.260 must be interpreted as meaning "an organisation registered under the Act".
The submissions by Ms Tierney's counsel as to the interpretation of the word "organisation" in s.260(1) have not succeeded; however, for the reasons given earlier, the material before the court justifies the making of an order requiring the AFMEU to treat Ms Tierney as being a member of that organisation and as having been a member "during the whole of the time when [she] acted as, and was treated by the [AFMEU] as, a member" i.e. from 8 February 1993.
It follows from AFMEU rule 45.30 that her nomination was invalid. I find that the act of the returning officer in accepting her nomination was an "irregularity" within the meaning of s.223(3) of the Act. As Ms Tierney was declared elected to that office, it can hardly be disputed that "the result of the election may have been affected" (s.223(4)).
Counsel for Ms Tierney in their written submission dated 2 March 1995 requested that the court "publish its findings and reasons in the inquiry, but not proceed to make orders in the inquiry until the parties have had an opportunity to address it". The court accepts that that is a proper course to follow and accordingly will hear the parties today, after they have had an opportunity to consider these reasons, before deciding what orders should be made.
I certify that this and the preceding twenty three (23) pages are a true copy of the reasons for judgment of the Honourable Justice Keely
Associate:
Date: 29 September 1995
Counsel for the Applicant: Mr S. Howells
Solicitors for the Applicant: Wilson Potter Nicholson
Counsel for the Respondent Tierney: Mr A. North QC and
Mr H. Borenstein
Solicitors for the Respondent Tierney: Slater and Gordon
Solicitors for the A.F.M.E.U.: Taylor and Scott
Dates of Hearing: 8, 9, 10, 15, 16, 17,
22 and 23 February 1995
Dates later written submissions received: 2, 8, 23 March and 13 April 1995.
Date of Judgment: 29 September 1995
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