Federated Engine Drivers & Firemans Assoc of Australasia v General Motors-Holdens Ltd

I n d u s t r ~ a l

Law

Leave

t o I n t e r v e n e

d u p l l c a t i o n of

r e p r e s c n t n t l o n

l c q l t u n a t e

lntcrest.

Conc l l l a t lon

and

Arb l t r a t lon

A c t 1 9 0 4

( C C h )

S .

1 0 6 ( 2 ) ;

1 4 5 ;

1 1 9

Owens

A u s t r a l i a n

Uu? 1d1 n q

C o n s t . ~

u c t l o n

Employees

and

Bu i lde r s

-__

Labourers Federat lon 197G 46 I ' . L . R .

A u s t r a l i a n C o l l l c r 3 e s

61:;tff

Assoc la t lon

Th=

Dnmp1c.r

Mitscj

Coal

P t y . L i m t e d

(Unrcported 2 2 i.larch

1983)

Hasset.	v	Hard2nq	( 1 9 7 6 )	27	F . L . R .	4 5 7
GRAY J.

ADELAIDE

23 JULY 1984

.-.

IN THE FEDERAL COURT

OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY	No. S.A.5 of 1984
INDUSTRIAL DIVISION

BETWEEN:

FEDERATED ENGINE DRIVERS' AND

FIREMAN'S ASSOCIATION OF AUSTRALASIA

Applicant

AND:

GENERAL MOTORS-HOLDEN'S LIMITED

Respondent

JUM;E: GRAY	J.
m: 23RD	JULY 1984

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: The Application in this matter, dated

19 June 1984,

claims a penalty for a breach or non-observance of the General Motors-Holden's Limited (Part 1) General Award 1982 ("the Award"). The particular provision of which breach is claimed is clause 7(h), which reads as follows:

The company may deduct from moneys due to

an employee

such amount as

is authorized in writing by

the employee

for a lawful purpose specified in the authority.

In the Application, it is alleged that deductions have occurred from moneys due to one William Edward Thornton, without

the authority in writing of Mr. Thornton. Points

of claim were

L .

filed on 9 July 11184.

In substance, they allege

as follows:

Thornton is alleged to have been a member of the applicant ("the F.E.D.F.A."), and to have been employed as a forklift driver at the Respondent's manufacturing premises at Elizabeth in South

Australia. It is said that Mr. Thornton formerly authorized in

writing the Respondent ("G.M.H.") to deduct from his wages

amounts in respect of contributions due to the Vehicle Builders

Employees Federation of Australia,

("the V.B.E.F.").

It is

further alleged that Mr. Thornton, by notice in

writing dated 6 February 1984,

which became effective on 7 May

1984, resigned his membership of the V.B.E.F.

He then, so it is

said, cancelled or revoked his authority to G.M.H. to deduct

contributions in favour of the V.B.E.F.

"he	gist of the claim is that, notwiihstandlng that

cancellation or

revocation, G.M.H. has continued to make those

deductions

without

authority.

Application

has

been

made

behalf of the

V.B.E.F.

for leave to intervene in the proceedings.

The application is supported by affidavit of Leonard Cecil

Townsend sworn 4 July 1984.

Mr. Marshal1 appeared in support of the application for

leave to Intervene. Mr. Clayton who appeared for G.M.H., did not put any submissions on this application. Mr. McCusker, on behalf

of the F.E.D.F.A., relied on an affidavit of Harold Leonard Luke

Heffernan sworn on 9 July 1984.

There is also an affidavit in

reply of Mr. Townsend, sworn on

17 July.

3 .

Section 106(2)

of the Conciliation and Arbitration Act

1904 assumes a power in the Court to grant leave to intervene and

limits the exercise of that power to

a case where the Court is of

the opinion that it is desirable that a person	or organization
should be heard.

considering this

power, the Full Court in Owens v

Australian Buildinq Construction Employees and Builders Labourers

Federation (1978) 46 F.L.R. page

page

held

that

intervention should not be lightly allowed. At page	24 the Court
said :

In our view, it would not be desirable to

allow intervention merely to strengthen a case

or to allow relevant matter to be put twice	or
with greater emphasis.

The Full Court was there dealing with a case In which the

application to intervene was made late. Not only had the issues

in that case been defined, but the evidence had begun. Indeed,

cross-examination of a witness was proceeding when counsel for

the proposed intervenor first appeared.

In this case, the application has been made promptly.

The pleadings in the sense of points of claim and points of

defence have

not closed, and it is necessary for the court to

look at the potential issues which may arise.

This makes it more

difficult to judge whether the effect

of intervention would be to

strengthen or duplicate the arguments which will be otherwise put. One of the complaints which the V.B.E.F. makes is that its

situation may be prejudiced by

G.M.H. failing to put arguments on

4 .

various issues.

All this being so. it

is nevertheless the case

that the Court must consider

the application on the footing that

interventlon will not be allowed llghtly.

Mr. Marshall put the case f o r intervention on behalf of

the V.B.E.F.

in a number of

ways.

I propose to deal with them

separately. In the first place

it was said that the Application

of the F.E.D.F.A. involves the interpretation of rule 22 of the

V.B.E.F. rules, relating $0 resignation from membership, and an

examination

the

propriety

the

V.B.E.F.'s

actions

refusing to accept the resignation

of Thornton.

Hr.

Marshall cited Hassett v Hardinq

(1976)

27 F.L.R.

457;

Federated Moulders (Metals) Union

of Australia v Ay-

(1976)

F.L.R. 276, and Kenna v Eqan (1960) 1 F.L.R.

387 in

support

of a

proposition

that

point

law

to the

validity	of Mr. Thornton's	resignation	from	membership	was
raised.

A number of points can be made about this. The first

that rule

the V.B.E.F.'s rules is not by any means

exclusively

involved.

Section

145 of

the

Conciliation

and

Arbitration Act 1904	is applicable to all organizations, and
overrides the rules of	an organization in every case. Any point,

therefore, on the validity or otherwise of a resignation

of this

kind would not be exclusive to the V.B.E.F. in the sense of

involving only an interpretation of its rules. More importantly,

although Mr. Thornton's resignation is alleged in the points of

claim, it

does not appear to be crucial to the issues in this

case. Even if Mr. Thornton remained a member of the V.B.E.F., if

he validly revoked the authority given to G.M.H. to deduct dues

in favour of the V.B.E.F., and if deductions continued to be

made, there would be a breach of the Award.

goes without saying that if

no valid resignation

occurred,

the V.B.E.F. would

have

all

rights

which

would

otherwise be available

to it with respect to the membership of

Mr. Thornton. I should

also

say

that,

notwithstanding

the

suggestion by Mr.

Marshall that the case involved

an examination

of the propriety

the V.B.E.F.'s actions in refusing to accept

the resignation of Mr. Thornton, nowhere

1s any application for

such an examination to be found in the points of claim

or indeed

in the affidavits filed on behalf of the

F.E.D.F.A.

The authorities to which

Mr. Marshall referred in the

context of resignation of membership appear to me to be readily reconcilable, and the court would not in the normal case require

the assistance of the

V.B.E.F.

on that issue, even if resignation

were an essential issue in the case.

Mr. Marshall also placed reliance on an allegation that

a demarcation dispute exists between the

F.E.D.F.A. and the

V.B.E.F. On the affidavit material there is a controversy as to

whether an agreement was entered into between the F.E.D.F.A. and the V.B.E.F. to the effect that the F.E.D.F.A. would not seek to enrol certain classes of employees at G.M.H.

Mr. Marshall placed reliance on the unreported decision

6 .

of St. John J.

in Australian Collieries Staff Association

Thiess Dampier Mitsui Coal

Ptv. Limited (Judgment delivered on

March 1983).

He sought to derive from that case support for the

proposition that

the Court would more readily grant leave to

applicant for intervention in a case where a demarcation dispute

between that applicant and one

of the parties to the proceedlnqs

before the court exlsted. That decision, however,

is readily

distinguishable from the situation which pertains in this case.

the

case before St. John J., the object of the

proceeding was to establish the applicability of

an award of the

Coal Industry Tribunal and thereby to oust the appliation

of an

award of the Federated Clerks Union. In such a situation, it was

plainly right to

allow the Federated Clerks Union to intervene in

the proceedings

to protect its position and the application

its

award.

a legal

sense,

that

case

therefore,

the

demarcation dispute was part

of the case.

The same cannot be said in this case. In a legal sense

in this case the demarcation dispute

is not only not central but

is very largely irrelevant to the issues. The issues in thls

case could be determined without reference to the question

whether a demarcation dispute exists at all. No issue raised by

the points of claim in this case refers to	or	raises any
question of the demarcation dispute.

In my view it is most undesirable for the Court to grant

leave to a party to intervene where such leave is likely to

expand

the

issues involved in the case. This Court is not

1 .

equipped with

the machinery to decide a demarcation dispute and

does not exercise that function under the Conciliation and to be used for the resolution of such disputes.

In	conjunction with the demarcation issue, there was

raised a

possible issue of the construction of the constitution

rule of the

F.E.D.F.A.

That rule is found in rule number

1 of

the federal rules of the F.E.D.F.A., which are before me.

The

issue, in simple terms, is as to whether the words, "connected

with the production or utilisation of power" found in that rule qualify all of the classifications which	go before, or only those
that immediately precede those words.

It is necessary for the F.E.D.F.A. to be an organization

affected or the members of

which are affected by the breach

alleged

for

have

standing

bring

this

proceeding:

section 119(2)(b)

of the Concilation and Arbitration Act 1904.

For the purposes of this proceeding,

am prepared to accept

that, if the F.E.D.F.A.

could not enrol Mr. Thornton

as a member,

it is not within the category of an organization affected, or the members of which are affected, by the breach alleged. However, it was never clear that the issue of the construction of the

F.E.D.F.A.'s constitution rule was a real one.

In paragraph 4 and paragraph 26(c) of the affidavit of

Mr. Townsend, sworn

4 july 1984, it is merely stated that there

is a serious doubt about the constitutional capacity of the

F.E.D.F.A. In

his submissions, Mr. Marshal1 made it clear that

the V.B.E.F. may not pursue any issue of constitutional capacity.

I point out that if intervention is not permitted, the V.B.E.F.

would not be shut out under other provisions of the Conciliation

and Arbitration Act

1904,

if it wished to pursue the demarcation

issue.

I would not grant leave to intervene

on the issue

constitutional capacity of the F.E.D.F.A.	if that issue is ralsed
in such a halfhearted manner.

It was

also pointed out to me that the

V.B.E.F.

is a

party

the

Award.

the

proceedings

were

brought

under

section 110 of the Concilation and Arbitration Act

1904, the

V.B.E.F. would have a statutory right to appear and to be heard

on the issue

of construction of the Award. It

is perhaps worth

pointing out that such a statutory right is not given under

section

119, even

though questions of construction of awards

frequently arise under that section. The intention

section

110 seems to be more that a definitive interpretation binding all

of those party to

an award should be given. If

I were to grant

the V.B.E.F. leave to intervene simply on the basis it is a party

to the Award in this case,

I should also have to grant similar

leave to all of the other organizations that are parties to the

Award.

In addition,

Mr. Marshal1 was not able to point

me t o

any real issue as to the construction of clause 7(h) of the

award, or the construction of any other provision. It therefore

appears to me that I should not grant leave to intervene on thls

ground .

Central to the claim of the

F.E.D.F.A. against G.M.H. is

the issue whether the authority of Thornton

deduct moneys from

his wages has been revoked. This issue involves the question

whether that authority was capable of revocation, as

well as the

factual issue whether any act of revocation occurred.

As	to this question it does seem to me that the

V.B.E.F.,

as the recipient of the money deducted pursuant to the

authority,

has

legitimate

interest.

Without

knowing

what

attitude the Respondent will take on this issue, the Court cannot

know if the V.B.E.F.

might be prejudiced by the determination of

it,

or by its being allowed to

go by default. It is also

possible that the Court might be assisted by evidence by the

V.B.E.F., or submissions on its behalf,

on this point.

Mr.	McCusker argued that, even if the authority were

properly revoked,

would still be open to the V.B.E.F. to

pursue

other

means

extracting

payment

dues

from

Mr.

Thornton, if he is still a member. This is true,

but

in my

opinion the V.B.E.F. still has an interest in the maintenance of

its

check-off

system

with

respect

Mr. Thornton. 1 am,

therefore, of the view that the

V.B.E.F.

should be granted leave

to intervene in these proceedings, it having, in my opinion, a

legitimate interest in that issue.

Mr. McCusker urged that I should, if I were disposed to

grant leave to intervene, grant that leave on terms. Without the

clarification of the issues, which will result from the filing of

points of defence, the drafting of suitable terms on which to

. .

10.

grant leave to intervene would be difficult, if not impossible. Leave will therefore be granted in absolute terms.

In doing this I emphasize, however, that the Court will

not permit

such intervention the creation of issues which

would not otherwise exist, and the Court will be vigilant to

ensure that the V.B.E.F. does not exceed its legitimate role in

this proceeding in the part that it takes.

I grant to the Vehicle Builders Employees Federation

Australia leave to intervene in the proceeding.

I direct that

points of contention be filed and served

by the Vehicle Builders

Employees Federation of Australia within 14 days of this day. I

fix Tuesday, 4 September

1984, as the

date for the hearing of

this matter.

I adjourn the directions hearing to a

date to be

fixed, and reserve liberty to either party and the intervenor

apply

[1984] FCA 264

23 Jul 1984