Barry v Australian Liquor Hospitality and Miscellaneous Workers Union

[1996] IRCA 328

DECISION NO: 328/96  

INDUSTRIAL LAW - REGISTERED ORGANISATIONS Membership - Entitlement of a person to be treated as a member in respect of a period before admission to membership - Whether entitlement is lost if person is admitted to membership - Whether entitlement depends on the person having been eligible for membership throughout the period.

Industrial Relations Act 1988 s. 260

JOHN WALTER BARRY v AUSTRALIAN LIQUOR HOSPITALITY AND
                  MISCELLANEOUS WORKERS UNION AND ANOR

No   NI 1654 of 1996
No   NI 1718 of 1996

CORAM:    WILCOX CJ, SPENDER & RYAN JJ
PLACE:    SYDNEY
DATE:     5 JULY 1996

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )      No. NI96/1654
NEW SOUTH WALES DISTRICT REGISTRY)        

BETWEEN:  JOHN WALTER BARRY

Applicant

AND:AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION AND ANOR

Respondent

CORAM:    WILCOX CJ, SPENDER & RYAN JJ
PLACE:    SYDNEY
DATE:     5 JULY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

NB:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )      No. N196/1718
NEW SOUTH WALES DISTRICT REGISTRY)   

BETWEEN:  JOHN WALTER BARRY

Applicant

AND:AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION AND ANOR

Respondent

CORAM:    WILCOX CJ, SPENDER & RYAN JJ
PLACE:    SYDNEY
DATE:     5 JULY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. No order be made in respect of this appeal.

NB:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )      No. NI96/1654
NEW SOUTH WALES DISTRICT REGISTRY)        No. NI96/1718

BETWEEN:  JOHN WALTER BARRY

Applicant

AND:AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION AND ANOR

Respondent

CORAM:    WILCOX CJ, SPENDER & RYAN JJ
PLACE:    SYDNEY
DATE:     5 JULY 1996

REASONS FOR JUDGMENT

WILCOX CJ:     Two appeals have been brought to the Court by John Walter Barry, a member of the Australian Liquor Hospitality and Miscellaneous Workers Union ("the ALHMWU").  The appeals put in issue orders made by a judge of the Court, Madgwick J, in connection with the membership of the organisation of Helen Louise Mary Casey.   It is unnecessary to set out all of the relevant facts.  It is sufficient to say that it appears that Ms Casey was admitted in 1984 to membership of a union that is a predecessor by amalgamation of the present organisation.  After that time she paid membership dues, and was treated as a member of that organisation continuously, until the amalgamation, which occurred on 3 August 1992.  Thereafter, she was treated as a member of the ALHMWU until a question arose regarding her position during an election inquiry heard by his Honour.

The issue that arose was whether, at the time Ms Casey joined the old organisation, she was an employee in a relevant industry.  It appears that she worked for a time in a restaurant, but Madgwick J found that there was no relevant employer/employee relationship.  I gather this was because the restaurant proprietor was a co-operative organisation.  His Honour made this finding on 12 March 1996.  Within the following eight days, Ms Casey  obtained employment, I think on a casual basis, with the Sheraton Towers restaurant.  There is no issue as to the fact that this was a job involving an employer/employee relationship and that Ms Casey then made an application for membership of ALHMWU and paid the requisite dues.  She was admitted to membership at or about that date.  Mr Barry concedes that Ms Casey is now a member of the ALHMWU, and has been since about 20 March 1996.

As a result of various irregularities found by him, his Honour made orders for a fresh election for certain offices in the Victorian branch of the organisation.  Ms Casey desires to contest one or more of those positions.  But she is not entitled to do so unless she has been a member for a period of not less than 12 months before the date of nomination.  It is therefore important to determine whether or not her membership dates only from 20 March 1996 or whether she is entitled to be recognised as having been a member before that date.

Madgwick J validated Ms Casey's prior membership of the organisation pursuant to two sections in the Industrial Relations Act 1988, ss. 258 and 260. The appellant challenges his Honour's decision in respect of both sections.

Counsel for the appellant, Mr Charny, commenced his submissions by dealing with s. 260. He conceded that, if the order of his Honour was justifiable under that section, there is no need to go to s. 258. In my opinion, the order is justified under s. 260. So I do not find it necessary to consider whether or not a similar order could have been made under s. 258.

Section 260(1) provides as follows:

"(1)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 has 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 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 and during the whole of the time from the time of the person's application to the time of the person's admission."

Sub-section (2) deals with disputes as to the entitlement of a person to be admitted as a member and to be treated as having been a member.  It reads as follows:

"Where a question arises as to the entitlement under this section of a person to be admitted as a member and to be treated as though the person had been a member during the times referred to in subsection (1):

(a)the person;

(b)a person who is or desires to become the employer of the person; or

(c)the organisation;

may apply to the Court for a declaration as to the entitlement of the person under this section.

Sub-section (3) empowers the Court, in spite of anything in the rules of the organisation concerned, to make such orders (including mandatory injunctions) as are appropriate to give effect to its determination.  The subsequent sub sections deal with procedural matters.

It seems to me that sub-s. (1) states a general principle or rule.  Its operation is dependent on satisfaction of four conditions.  First, the relevant person must be eligible for membership of the relevant organisation.  Second, the person must have applied to be admitted as a member of the organisation.  Third, the person must have acted in good faith as a member up to a time within one month before the application for membership.  Fourth, the person must have been treated by the organisation as a member up to a time within one month before the application of membership.

If those four conditions are satisfied then the statutory principle is as stated in sub-s. (1):

"the person is entitled 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 and during the whole of the time from the time of the person's application to the time of the persons admission."

It seems to me that the four conditions are satisfied in this case.  It is common ground that Ms Casey is eligible for membership of the organisation.  It is common ground that she applied for membership on 20 March 1996.  It is now conceded, although it was a matter of dispute between the parties at the hearing before the primary judge, that Ms Casey acted in good faith as a member up to a time within one month before the application, indeed at least up until 12 March 1996, when his Honour made his finding in respect of her eligibility.  Finally, it is common ground that Ms Casey has at all times been treated by the organisation and its predecessor organisation as a member.  It seems to me that, if those four conditions are fulfilled, sub-s. (1) operates so as to impose on everybody concerned the rule of entitlement that it sets out.

Mr Charny sought to read down the operation of sub-s. (1) by reference to the terms of sub-s. (2).  But it seems to me, with respect to his argument, that this is not a legitimate course.  Sub-section (2) only sets out the circumstances under which the matter may come before the Court, namely where there is a dispute between the organisation and the member as to the existence of an entitlement claimed under sub-s. (1).  I do not think that sub-s. (2) limits the principle which sub-s. (1) enacts.

Mr Charny also argued that sub-s. (1) does not apply where the person was admitted to membership prior to the Court ruling on the matter.  I do not think it is legitimate to qualify sub-s. (1) in this way.  The effect of such a qualification would be to introduce a dangerous technicality into the section.  For sub-s. (1) to operate, the person must have made an application for membership; but, according to the argument, the person's entitlement under sub-s. (1) to be treated as a member during an earlier period of time - which, as the facts as the present case indicate, may be an important entitlement - would be defeated if the organisation accepted the application for membership.  I see no reason for imposing this unattractive technicality upon the sub-section.  It is true, as Mr Charny pointed out, that, in Re Federated Clerks Union of Australia; Ex parte Tanner (1986) 70 ALR 79, there was a somewhat similar factual position, with the exception that the organisation had deferred acceptance of the application for a membership. Gray J held that s. 171E of the Conciliation and Arbitration Act 1904, the predecessor of the present s. 260, applied to the case. But I do not think this means that the factual situation in that case constitutes the only circumstances in which the section may operate.

Secondly, Mr Charny argued that sub-s. (1) does not apply where the person was not eligible for membership during the earlier period, during which he or she had been recognised as a member.  It seems to me, once again, that this imposes a  requirement or qualification on the sub-section that is not stated in it.  It is true that it is a basic principle that the members of an organisation are entitled to determine the content of its rules, subject to some statutory qualifications, and that eligibility is always an important aspect of the rules.  Mr Charny pressed us with the example of a person who was ineligible during a very lengthy period, during which he or she was treated as a member, and said that rejection of his argument would result in the Court imposing on the members a person who was not in fact within the eligibility rules.  This might be so; but it is a situation that would arise only where, throughout that lengthy period, the organisation itself had treated the person as eligible and as a properly-admitted member.

It seems to me that the intention behind s. 260 was to obviate the possibility of a person being treated as ineligible, notwithstanding that over a long period both the person and the organisation thought the person was eligible for membership and, indeed, properly admitted to membership. Eligibility is often a technical matter. The operation of the section would be severely limited if eligibility throughout the prior period was a necessary condition precedent. It is relevant to note that in Tanner  Gray J dealt with this issue at 92-93:

"Mr Hurley then sought to argue that section 171E applies only to persons who have failed to become members because of some formal defect such as failure to fill out the correct membership application form, and not to persons whose invalid membership resulted from failure to comply with conditions of eligibility for membership.  Again no reason appears in the text of the legislation or in the report of the Sweeney committee, for reading down the legislation in this fashion.  Section 171E was applied to the case of a person ineligible to become a member in Ransy's case already referred to.  In my view, 171E applies to the case of a person who has been treated as a member of an organisation, but has not been a member, whether by reason of want of eligibility or want of form.  The section provides no grounds for distinguishing between membership in fact and invalid membership.

I respectfully agree with these observations. I think it is important to note that s. 171E came into the Act as a result of the report of the Sweeney committee, more correctly entitled the "Committee of Inquiry on the Co-ordination of Industrial Organisations". There was nothing in that report to suggest that the proposed section should be limited to cases where the person was eligible during the period in which he or she was incorrectly recognised as a member.

In my view, this case falls directly within s. 260. I think his Honour was entitled to make the declaration that he did; and that this is enough to dispose of the current issue between the parties. I propose that, in the matter involving the s. 260 point, (appeal NI1654 of 1996) the Court order that the appeal be dismissed. In the circumstances, I propose that the Court make no order in respect of the other appeal, NI1718 of 1996.

SPENDER J: I agree with the reasons of the Chief Justice and the orders he has proposed. There is simply no warrant for reading into s. 260 a qualification that the section can have no application to a person whose application for membership of an organisation has been successful. Nor is there any warrant for reading "is" in s. 260(1) as if it read: "is and was at all material times was."

RYAN J: I agree that the question contemplated by s. 260(2) need not necessarily involve entitlement of a person to be admitted as a member. It may be confined, as occurred in respect of Ms Casey, to her entitlement to be treated as though she had been a member during the times referred to in sub-s. (1). Those times include periods antedating the application for membership which are unlimited in point of commencement.

That view is borne out by the language of sub-s. (6) which provides that a "reference in this section to a person having acted as, or been treated by the organisation as, a member of an organisation includes a reference to a person having so acted or been so treated during a period before the commencement of this section." Accordingly, I consider that sub-s. (4) of s. 260 confers on the Court a discretion to make an order requiring the organisation to treat a person to whom sub-s. (1) applies as having been a member during a time, including a time before the commencement of s. 260, during which the person acted as, and was treated by the organisation as, a member. That was the discretion which Madgwick J exercised when he ordered and declared on 7 June 1996 that Helen Louise Mary Casey was entitled to be admitted to be a member of the Australian Liquor Hospitality and Miscellaneous Workers Union on 20 March 1996 and is entitled to be treated by that organisation and its members as though she had been a member of that organisation at all times since 3 August 1992.

It has not been urged that, if the Court had jurisdiction, his Honour's discretion miscarried.  For these reasons and the further reasons explained by the Chief Justice, I agree that the appeal against that order should be dismissed and that the other orders proposed by the Chief Justice should be made.

WILCOX CJ:  The orders of the Court will be as outlined.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of the members of the Honourable Court.

Associate:

Dated:

APPEARANCES

Counsel for the Applicant  :    G Charny

Solicitor for the Applicant     :    Walsh James

Counsel for the Respondent :    R Kenzie QC and B Hinkley

Solicitor for the Respondent    :    Steve Masselos & Co

Date of hearing           :    5 July 1996