Clothing & Allied Trades Union of Australia v Matter of an election, McGarry, P.D

[1987] FCA 228

CATCHWORDS

Validity of election of delegate to Federal Council -

INDUSTRIAL L A W - Application for inquiry into union election -

- Whether successful candidate was 'wholly employed" in the	Interpretation of rules - Eligibility of successful candidate
industry at the time	of joining the union, she then being on

leave of absence without pay from the employment of the union

itself - Whether successful candidate was 'bona fide" member

of union, she having been influenced in joining the union by a

desire to stand for elective officer - Certificate under 3.168 that applicants acted reasonably in bringing Application.

Conciliation and Arbitration Act 1904 ss.159, 168.

No. NSW 16 of 1987

IN THE MATTER of an election for an office in the Clothing and pursuant to the Conciliation and Arbitration Act.

AND IN THE MATTER of an application pursuant to Section 159 of the Act.

KENNETH JOHN COLLINS (Applicant)

No. NSW 17 of 1987

IN THE MATTER of an election for an office in the Clothing and pursuant to the Conciliation and Arbitration Act.

AND IN THE MATTER of an application pursuant to Section 159 of

the Act.

PATRICK DAVID McGARRY (Applicant)

Wilcox J - , 1 EAY l987

Sydney ,- WERAL C O U ~ T OF/

28 April 1987 AUSTRAUA

IN THE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW 16 of 1987

)

INDUSTRIAL DIVISION )

IN THE MATTER of an election for an office in the

Clothing and Allied Trades

Union of Australia an

organisation registered

pursuant to the Conciliation

and Arbitration Act.

AND IN THE MATTER of an

application pursuant to

Section 159 of the Act.

KENNETH JOHN COLLINS

Applicant

CORAM :	WILCOX J
PLACE:	SYDNEY
DATE :	28 APRIL 1987

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

2 . The applicant have a certificate under s.168(2) of the Conciliation and Arbitration Act that he acted reasonably in applying for the inquiry.

?l0 te : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
1

NEW SOUTH WALES DISTRICT REGISTRY No. NSW 17 of 1987

1

INDUSTRIAL DIVISION 1

IN THE MATTER of an election

€or an office in the

Clothing and Allied Trades

Union of Australia an

organisation registered

pursuant to the Conciliation

and Arbitration Act.

AND IN THE MATTER of an application pursuant to Section 159 bf the Act.

PATRICK DAVID McGARRY

Applicant

CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	28 APRIL 1987

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

2 .

The applicant have a certificate under s.168(2) of

the Conciliation and Arbitration Act that he acted

reasonably in applying for the inquiry.

Note:

Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	)
1
INDUSTRIAL DIVISION	)

No. NSW 16 OF 1987

IN THE MATTER of an election for an office in the

Clothing and Allied Trades

Union of Australia an

organisation registered

pursuant to the Conciliation

and Arbitration Act.

AND IN THE MATTER of an application pursuant to Section 159 of the Act.

KENNETH JOHN COLLINS

Applicant

No. NSW 17 of 1987

IN THE MATTER of an	election
for an office in the
Clothing and Allied	Trades

Union of Australia an

organisation registered

pursuant to the Conciliatlon

and Arbitration Act.

AND IN THE MATTER of an

application pursuant to

Section 159 o f the Act.

PATRICK DAVID McGARRY

Applicant

CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	28 APRIL 1987

L .

EXTEMPORE REASONS FOR JUDGMENT

There are before the Court Applications by two

members of the Clothing and Allied Trades Union. The

Applications are brought dnder s.159 of the Conciliation and election within the dnion of a New South Wales delegate to the

Arbitration Act 1904 and they each seek an inquiry by the

Federal Council of the union. The union is an organisation

registered under the Conciliation and Arbitration Act.

The basis of each Application is identical and by

consent both matters have been heard together. There is no

complaint made about the conduct of the election, In which the

successfdl candidate was the first respondent, Anna Christina

Booth. The second respondent is the union itself. Althodgh

the Applications questioned whether MS Booth was a financial

member at the time of the election this point is not pressed.

Two matters are argaed on behalf of the applicants: whether MS Booth was, at the time she joined the union, 2

December 1 9 8 5 , eligible to be a member of the anion: and, if so, whether she was eligible to be a candidate for the office to which she was declared elected.

MS Booth became employed by the union in Adgast 1977

as a part time research officer. In November 1977 that

employment became full time and she worked in this capacity

3.

with the union for approximately five and a half years. In

May 1983 M S Booth was granted leave of absence without pay for

six months in order to take up a temporary position with the

Trade Union Training Authority. She then returned to the

union and continued to work in her former capacity. In July

1984 a decision was made by the Federal Council of the union

by postal ballot to grant to her what was called "two years

leave of absence". M S Booth went on leave of absence from 9

September 1984 and she did not perform any further work for

the organisation until 3 February 1986.

On 11 September 1984 MS Booth commenced employment in the Australian Public Service as Director, Education/Research, Business Union Consultation Unit, in the Department of Trade.

This was a full time position in the public service at a

salary commencing at $36,612 per annum which increased during

her period of service to approximately $39,000. During her

time with the public service MS Booth joined the

Administrative and Clerical Officers Association.

M S Booth resigned from the Australian Public Service

on 28 October 1985, the resignation taking effect as from 2 2

November 1985. Miss Booth decided that she wished to work for

some time in the clothing industry and she was successful in

arranging employment with King Gee Clothing Company as from 2

December 1985. This employment was a full time job as a

sorter in the cutting room but at a wage well below her public

service salary. She remained in that employment until 31

January 1986, although there was a period of three weeks

4 .

during that time when she was not actually performing any

duties because of the Christmas shut down. She says that she

actively performed duties for six weeks during that period.

On 2 December 1985, that is to say the first day of

her employment with King Gee Clothing, MS Booth joined the

Clothing and Allied Trades Union of Australia as a member. As

I have said, it is conceded that she has retained her status

as a financial member -- assuming initial eligibility	-- since
that date.

After she left King Gee Clothing MS Booth returned to

work for the union, commencing duties on 3 February 1986 in

the position of Senior Industrial Officer. In December 1986

one of the New South Wales delegates to the Federal Council

resigned. As a consequence it became necessary for the

Industrial Registrar to carry out an election to fill the

vacancy. Nominations for the election opened on 12 February

1987. MS Booth nominated on 16 February 1987. Nominations

closed on 27 February 1987 and on 2 March 1987 the returning

officer declared her elected unopposed to the position.

On 3 April 1987 Mr Fred Peterson, the General

Secretary/Treasurer of the organisation resigned his position as from 30 April 1987. MS Booth has been appointed as Actlng General Secretary/Treasurer and she hopes to stand for

election to the position as	General Secretary/Treasurer when
nominations open.

5.

The first question for consideration is whether M S

Booth was at the date of joining the union a person eligible to be a member. Clause 3 of the rules of the union provides that “the union shall consist of an unlimited number of

employees wholly employed in any one or more of the following

industries”. The clause then goes on to set out a list of

activities and it is conceded that the work carried out by MS Booth on behalf of King Gee Clothing falls within that list.

It is said, however, that when she was working for King Gee

Clothing she was not “wholly employed“ in the relevant

industry because there had been no termination of her contract

of employment with the Clothing and Allied Trades Union.

The evidence is that when !4s DGOth wss granted leave of absence in 1984 it was on the basis that there would be no

increment to her rights in respect of matters such as long

service leave or superannuation during the period of her

absence but that she would retain her already accrued rights. the union in February 1986 she was able to take up where she had left off in regard to those previously accrued rights. It

is common ground that, during the period of the leave oE

absence, she neither performed any work	for the union nor
received any emoluments.

Counsel f o r the applicants refers to two authorities

relating to the status of a person where there has been no

termination of a contract of employment; but where work has

not actually been performed. I think that the more useful of

6.

these authorities is the decision of the English Court of

Appeal, Morqan v Fry [l9681 2 Q0 710. That case involved a

suspension of activity because of a strike. Mr Phillips calls attention to what was said by Lord Denning MR, at p.728, where

he referred to the position which applies where work is not

being done during the period of a strike; yet neither the

employer nor the employee has terminated the contract of

employment. Lord Denning said this:

"If a strike takes place, the contract of

employment is not terminated. It is suspended

during the strike and revives again when the

strike is over."

I think that it is accurate to use the word

"suspended" as a description of the situation regarding MS

Booth's contract of employment during the period of her leave

of absence from duties as from September 1984. She had not

resigned. The union had not terminated her employment. But,

by agreement, she was not carrying out any duties and she was

not receiving any salary or other reward. The contract

remained on foot but its performance was suspended until such

time as MS Booth resumed her duties or, alternatively, one or

other of the parties terminated the agreement.

The question then is whether the fact that a person

has the benefit of a suspended contract of employment with one

employer prevents that person being "wholly employed" by

another employer in the clothing trade. This question must be

answered in the negative. The phrase "wholly employed" must

be read as being opposed to "partly employed". I think that the notion was to cover only persons whose sole remunerative

7.

activity was in the clothing industry, as distinct from people

who engaged in the industry on a part time basis in

conjunction with other remunerative employment. There may be many such people in the clothing trade. Ddring the time that

MS Booth was with King Gee Clothing she was a fdll time

employee. She apparently served the employer for the normal

number of hours each week, doing the same work as any other person of her classification and receiving the same wage. I do not think that the fact that she had the right to go back to some other employment derogated from the fact that she was

at the time fdlly -- that is "wholly" -- employed by King Gee.

It would have been different if she had been actively working

for -- and being paid by -- the dnion ddring that time and had

been employed by King Gee Clothing for only part of her

working day or working week.

The second matter turns dpon c1.16(c) of the rdles.

Clause 16 deals with the constitution of Federal Council. terms:

"Delegates to the Federal Council shall be bona

fide members of the Union who have been

contindously financial for twelve months

immediately prior to their election, bdt

members of any Union that have amalgamated

with this Union who in the aggregate were

members of the respective Unions for twelve

months shall be eligible for election to

Federal Council."

For the purposes of this second argdment corlnsel f o r

the applicants concede that MS Booth was a member of the

dnion. He does not dispdte the fact that she was contindodsly

0.

financial for 12 months immediately prior to the election. He

says, however, that MS Booth was not a "bona fide" member of

the union. The reason for this is that, upon her evidence, MS

Booth undertook her employment with King Gee Clothing for two

reasons: one, to gain experience in the industry in the

workplace and the other in order to qualify herself for

membership of the union with a view to standing for elective

office. MS Booth accepted the suggestion of counsel that this

latter motive was her primary reason for going to King Gee

Clothing. She also gave evidence that at that time she had in

mind eventually nominating for the position of General information by the then incumbent, Mr Peterson, of his

intention to resign before long.

On the basis of this evidence counsel submits that M S

Booth was not a bona fide member because her motive was other

than to serve indefinitely in the industry. I am unable to

read the sub-clause in this way. It seems to me that the term

"bona fide" has been added as a qualification of the word

"members" in order to exclude a person who may appear on the

roll of membership of the union but who was not in fact

entitled to appear on that roll, for example, because the

person was never eligible to be a member at the time of

joining or because that person failed to comply with some

formal requirement. In other words, for the purpose of

determining eligibility pursuant to c1.16(c), one looks at the

substance rather than the appearance of membership. NO doubt

there is room for saying that a bona fide member is a person

9 .

other than a person who has taken membership as a sham; that

is to say, not intending genuinely to be a member. But I do

not think that the sub-clause is at all concerned with motive.

There is a variety of reasons for joining a trade union. Some

people may join because of conviction, born of the view that

it is in the mutual interests of employees within an industry

that they band together in an industrial organisation. Some

of them may join with a view to standing for elective office,

either in the union or in some other organisation. Some of

them may join only because they would not otherwise be able	to
obtain a particular job. Some people may join the union without giving much thought at all to their motives, but

simply because they are asked to join. In each case, in my

view, those people are genuine members of the union. They

have satisfied both the eligibility and the formal

requirements. It would be an extremely onerous task if the

returning officer had to inquire into the motives for which

each candidate for election to the Federal Council had

originally joined the union; and indeed what were the motives which caused those people to continue as members of the union

up to the date of nominating for office.

It is clear that MS Booth had in mind running for elective oPfice when she joined the union, but there is no

reason to doubt that she shared the objectives of the union --

for which after all she had worked for a considerable period

-- and that she genuinely desired to do what she could to

advance the interests of the union and of its members. There

is no reason to doubt that in joining the unions she did so

10.

bona fide, as distinct from as a sham. In my view she was

eligible within the meaning of c1.16(c) to stand for office as

a delegate to the Federal Council.

It follows that each of the matters raised by the

applicants, in their call for an inquiry, is without

substance. Section 159(4) of the Act provides that the Court

is not required to proceed with an inquiry unless it is

satisfied that there is reasonable ground for the Application.

In no way do I criticize the applicants for bringing the Application but, the matters desired to be raised having been fully argued on their behalf, I think that it emerges that there is not, in fact, any reasonable ground for the

Application. Consequently that it would be pointless to

proceed with the hearing of an inquiry.

The appropriate order in each matter is that the

application be dismissed.

Notwithstanding the fact that I have ruled against

the applicants on both points and have dismissed the

application for the inquiry, I did so after full argument on

those questions and I am prepared to grant a certificate under

s.168(2) of the Act that the applicants acted reasonably in

applying. I might say that, in coming to that conclusion, I

have taken into account in their favour that they have

co-operated in the matter being dealt with both in an

expeditious fashion and in a way which minimises costs; and I

11.

think that one is entitled to have regard to all of those

circumstances in determining reasonableness.	So I will grant
a certificate under s.168(2) of the Act.
I certify this and the ten (10)

preceding pages to be a true copy	of
the Reasons for Judament of his Honour Mr Justice Wilcox.

Date: 4 May

Counsel for the Applicants:

Mr G Phillips

Solicitors for the Applicants:

Robert A Hannam 6 CO

Counsel for the Respondents:

Mr R Kenzie QC with

Mr M Kimber

Solicitors for the Respondents:

Steve Masselos 6 CO

Date(s) of hearing:

28 April 1987