GTS Freight Management Pty Ltd v Transport Workers Union of Australia
[1990] FCA 105
•21 MARCH 1990
Re: G.T.S. FREIGHT MANAGEMENT PYT. LIMITED
And: TRANSPORT WORKERS UNION OF AUSTRALIA
No. SG13 of 1990
FED No. 105
Contempt of Court - Industrial Organization
25 FCR 296
33 IR 26
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Contempt of Court - alleged breaches of interlocutory order - standard of proof - responsibility of Fed. Union for actions of branch officers.
Industrial Organization - whether branch officers had authority to act on behalf of Federal union - construction of rules of branch and Federal union.
Waterside Workers' Fed. v Burgess Brothers Ltd. (1916) 21 CLR 129
The Commonwealth Steamship Owners' Association v The Federated Seamen's Union of Australasia (1923) 33 CLR 297
A.M.I.E.U. v Mudginberri Station Pty. Ltd. (1986) 66 ALR 577
Williams v Hursey (1959) 103 CLR 30
HEARING
MELBOURNE
#DATE 21:3:1990
Solicitors for Applicant : Baker O'Loughlin
Counsel for Applicant : Mr. P. C. Heery QC and Mr. A. Short
Solicitors for Respondent : Johnston Withers
Counsel for Respondent : Mr. R. Kenzie QC and Mr P. Heywood-Smith
ORDER
1. The Notice of Motion filed on 1 March 1990 by G.T.S. Freight Management Pty. Limited be dismissed.
2. The costs of this application be reserved.
Note: Settlement and entry of orders is dealt with in the Order 36 of the Federal Court Rules
JUDGE1
G.T.S. Freight Management Pty. Limited ("the applicant") by notice of motion, filed 1 March 1990, moved for orders that the Transport Workers Union of Australia ("the union") be punished for contempt for allegedly breaching an order made by von Doussa J. on 27 February 1990 ("the court's order"). On 1 March 1990 the applicant was given leave to amend that notice of motion by adding two charges to the five already existing.
By notice of motion, dated and filed 6 March 1990, the union moved for an order under Order 20 Rule 2 of the Federal Court Rules that the applicant's amended notice of motion be stayed or dismissed. After hearing detailed submissions by senior counsel for both the union and the applicant on 7 March 1990, the court decided on the following morning that the applicant's amended notice of motion did not specify distinctly each particular charge of contempt of court. The applicant then applied for and was given leave to make further amendments (including the spelling of the name of Mr. Connors) to its amended notice of motion. On 9 March 1990 that further amended notice of motion was, by leave, further amended by deleting the words "and Transport Workers Union, Victorian Branch" from paragraph 1.
The hearing continued in Adelaide on 8 and 9 March and, at its conclusion, the applicant was given leave to file a written submission in reply to the union's oral submissions and the union (as the respondent to a motion of punishment for alleged contempt of court) was given leave to file a written submission in reply to any new matters raised by the applicant in its written submission. Those submissions were received in Melbourne on 13 and 15 March 1990 respectively.
The Notice of MotionIn order to understand the way in which the applicant's case was put it is desirable to set out in full the terms of its notice of motion, which includes the terms of the orders of the court which the union is said to have breached. In its final amended form, it sought orders:
"1. That the Transport Workers Union of Australia be punished for contempt for breaching the Orders made by the Honourable Justice von Doussa herein on the 27th day of February 1990 whereby it was ordered:
1. That until further order an injunction be granted restraining the first respondent the fourth respondent Kevin Connors, the fifth respondent Ian John Robertson and the sixth respondent Eric William Martin and each of them whether by themselves or their servants or agents or in the case of the first respondent by their officers or members either by themselves or in combination from contravening or attempting to contravene the provisions of the Trade Practices Act 1974 namely Section 45D and in particular such respondents are restrained from doing the following acts or any of them namely:- 1.1 Directly or indirectly whether by counselling, inciting, directing, encouraging or otherwise interfering or attempting to interfere with the contractual relations between the applicant and Lindemans Pty Ltd and from being or continuing to be a party to the doing or continuing of any act that directly or indirectly causes or procures any breach by the applicant or Lindemans Pty Ltd or any other person or body of any contract (made now or hereafter) between the applicant and Lindemans Pty Ltd or the applicant and any other persons or companies for the receipt or supply of goods or materials in the course of the business of the applicant. 1.2 Directly or indirectly interfering or attempting to interfere with the receipt or delivery by the applicant of merchandise or goods supplied by or delivered to Lindemans Pty Ltd or any other persons or companies pursuant to contractual arrangements between the applicant and Lindemans Pty Ltd. 1.3 Directly or indirectly placing any bans or limitations on the applicant taking or making delivery of merchandise or goods from or to Lindemans Pty Ltd.
1.4 In any way howsoever interfering with hindering or obstructing the distribution and/or release of goods from the premises of the applicant or of Lindemans Pty Ltd.
2. That Ivan Hodgson, Keith Wise, Ken McGrath and Kevin Connors appear before this Court at a time to be fixed to show cause why they should not be dealt with for contempt for breaching the said Orders.
3. That the Transport Workers Union of Australia be fined FORTY THOUSAND DOLLARS
($40,000) in respect of breach of Order of the Honourable Justice von Doussa of 27 February 1990, and from service of this Order onwards, further fine of FORTY THOUSAND DOLLARS ($40,000) per day so long as the breach continues. STATEMENT OF CHARGES Following service of the sealed order of the Honourable Justice von Doussa herein dated the 27th day of February 1990 ("the Order") the respondent Transport Workers Union of Australia ("the respondent") has by its officers:-
1. Contrary to paragraph 1.1 of the Order counselled, incited, directed, encouraged, interfered and attempted to interfere with contractual relations between the applicant and Lindemans Pty Ltd.
2. Contrary to paragraph 1.1 of the Order been a party to acts directly or indirectly causing or procuring or attempting to cause, procure, encourage or incite breaches of contracts by the applicant with other persons or companies for the receipt or supply of goods or materials in the course of the business of the applicant.
3. Contrary to paragraph 1 of the Order contravened or attempted to contravene the provisions of Section 45D of the Trade Practices Act. (Note: The applicant in final address (transcript 341) stated that this charge was not pursued.)
4. Contrary to paragraph 1.3 of the Order placed or attempted to place bans and limitations on the applicant taking or making delivery of merchandise or goods from or to Lindemans Pty Ltd.
5. Contrary to paragraph 1.4 of the Order interfered with and obstructed the distribution and/or release of goods from the premises of the applicant. PARTICULARS OF CHARGES Of Charges 1, 2, 3, 4 and 5
1. The respondent by its officers (sic), has maintained and caused to be maintained picket lines at the applicant's premises at Mildura, and interfered with the applicant's business there.
(a) The applicant's premises are at The Crescent, Mildura.
(b) The picket was maintained between the time of the service of the Order at 4 pm on 27th February 1990 and the filing of the applicant's Notice of Motion at 10 am on 1st March 1990.
(c) The officer by whom the respondent acted was Kevin Connors
("Connors").
(d) The authority of Connors to act on behalf of the respondent in relation to the picket lines was part of his authority to act generally on behalf of the respondent in relation to all matters arising out of disputes between the applicant and its employees or former employees who were members of the respondent. That general authority is to be implied from the following facts:-
(i) Connors is a Union official holding the office of organizer of the Victorian Branch of the respondent.
(ii) Under the registered rules of the respondent, Rule 32(e)(ii), Connors' duty was to assist in the work of the Victorian Branch generally and discharge such duties as might be allocated to him by the Branch Secretary.
(iii) By facsimile dated 12th February 1990 the respondent by its Victorian Branch Secretary Keith Wise authorised Connors to deal with the applicant on behalf of the respondent and held out Connors to the applicant as the respondent's authorised agent.
(iv) Wise sent Connors from Melbourne to Mildura on Friday 16th February 1990 to act on behalf of the respondent in connection with disputes which had arisen at the applicant's premises.
(v) While at Mildura Connors carried an identification card confirming his authority to act on behalf of the respondent.
(vi) On 20 February 1990 in the course of persuading Lindemans Pty Ltd not to load the applicant's trucks Connors asserted his authority to act on behalf of the respondent.
(vii) Connors resides at Melton near Melbourne, over 500 km from Mildura.
(viii) On 2nd March 1990 at about 11 am Connors attended at the applicant's premises at Mildura in the company of Hamish Weir, an office holder of the respondent, where both identified themselves as officials of the respondent acting as officials of the respondent to Kenneth George Helms.
(ix) On 6th March 1990 at about 10.30 am at Mildura Connors acted on behalf of the respondent in discussions with the applicant's director Donald Frederick Matthews in relation to an order made by the Victorian Industrial Relations Commission made in Melbourne the previous day. At about 1.45 am on 6th March Connors caused the picket to be re-instated. Of Charges 1, 2, 3 and 5
2. The respondent by its officer Kevin Connors attempted on 28th February 1990 at Mildura to induce or threaten John Vorlicek not to load or remove goods from the applicant's premises at Mildura.
(a) As to the authority of Connors, the particulars under Particulars of Charge paragraph 1 are repeated. Of Charges 1, 2, 3 and 5
3. The respondent by its officer Hamish Weir on 28th February 1990 at Karadoc Victoria induced or attempted to induce Lindemans Pty Ltd to breach contractual arrangements with the applicant.
(a) The authority of Weir to act on behalf of the respondent in relation to the inducement of Lindemans Pty Ltd was part of his authority to act generally on behalf of the respondent in relation to all matters arising out of disputes between the applicant and its employees or former employees who were members of the respondent. That general authority is to be implied from the following facts:-
(i) Weir is an officer of the Victorian branch of the respondent.
(ii) While at Mildura Weir carried an identification card confirming his authority to act on behalf of the respondent.
(iii) On 28th February in the course of persuading Lindemans Pty Ltd not to load the applicants Weir asserted his authority to act on behalf of the respondents.
(iv) On 2nd March at about 11 am Weir attended at the applicant's premises at Mildura in the company of Connors, when both identified themselves to Kenneth George Helms an officer of the applicant as acting as officials of the respondent.
(v) Weir lives at Alphington, over 500 kms from Mildura."
The allegations of contempt of court made in the present proceeding are confined to (1) actions by Mr. Kevin Connors and by Mr. Hamish Weir and (2) a period of three days 27 February to 1 March 1990. The court's order was not formally served on the union until 28 February but had been sent by facsimile to the union on 27 February; in the light of the conclusions which I have reached, it is not necessary to determine whether any act on 27 February 1990 could have constituted contempt.
Counsel for the union did not call any witnesses but cross-examined four of the deponents upon whose affidavits the applicant relied.
Standard of ProofCounsel for the union submitted that the court should apply the criminal standard of proof and referred to the High Court decision in A.M.I.E.U. v Mudginberri (1986) 66 ALR 577 at 583 - 588 and to Re Plumbers and Gasfitters Employees' Union (1987) 72 ALR 415. In the latter case Wilcox J. decided (at 436) that it was "proper to apply to the case the criminal standard of proof"; in the earlier case of Flamingo Park (1985) 59 ALR 247 at 262 his Honour had described the standard of proof in civil contempt proceedings as being "little short of proof beyond reasonable doubt". In the time available I have not been able to give this question as much consideration as is desirable, in the light of the High Court's decision in Mudginberri (supra). In the circumstances I have decided that, in determining the motion, the civil standard of proof should be applied but in the manner set out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 where Dixon J. said:-
"The truth is that, when the law requires
the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. ... The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
Findings
On the evidence I make the following findings:
1. At all material times the applicant has conducted a
business of freight transporting and contracted to supply and
deliver goods and products to many parts of Australia. It
has depots in Brisbane, Sydney, Melbourne, Adelaide, Mildura
and Euston and has employed approximately 100 employees in
Australia. It has used a fleet of 32 semi-trailers for
interstate deliveries, which effect about 50 percent of the
applicant's deliveries and nine tray bodied trucks, driven by
its employees, to deliver in capital cities. Some of those
employees were members of the union, membership being a
matter "left to employees". Mildura was the applicant's most
important depot and its major contract was with Lindemans
Pty. Ltd. for the exclusive carriage of its wine and
associated products throughout Australia. The applicant
collected goods from Lindemans warehouse at Karadoc, outside
Mildura in Victoria, and transported the products by road to
various destinations in Australia.
2. The applicant was not a named respondent to the
(Federal) Interstate Drivers Award and no State award applied
to the applicant's drivers.
3. The union is an organisation of employees registered
under the Industrial Relations Act 1988 (Cth); although the
evidence before the court did not include a certificate of
registration of the union, the fact of registration is
inferred from (a) the terms of the certificate (exhibit "B"),
given under s. 292 of that Act, as to the list of office
holders, lodged in the Industrial Registry. That section
deals only with certificates as to organisations or branches
of organisations; "organisation" is defined under s. 4(1) of
that Act as "an organisation registered under this Act" (b)
the Deputy Industrial Registrar's certificate as to "the
registered rules of" the union (exhibit "A") and (c) Rule 12
of those rules, which requires the keeping of "a register of
... each officer ... available for inspection by the
Industrial Registrar ... under the Industrial Relations Act
1988". It may be added that the written submissions of both
the applicant (paragraph 11) and the union (paragraph 3 on p
6) proceeded on the basis that the union was so registered.
4. Mr. Ian Robertson, an employee of the applicant, was a
member of a "Drivers' Committee", which had been in existence
for an unspecified period of time, commencing some time
before a date "about 3 weeks before 15 February 1990". He
approached Mr. Helms, the manager of the applicant's depot at
Mildura, on Thursday 15 February 1990 at 4.00 pm and said
that the applicant had not replied to a request for "a
meeting with the directors" of the applicant. On Mr. Helms'
evidence it is not possible to make a finding as to whether
the request for a meeting was made by "the TWU" (which, in
any event, might mean either the union or the Victorian
Branch) or by "his (i.e. Mr. Robertson's) members" - see
transcript p 251.3 cp. p 252.7. Mr. Helms told Mr.
Robertson that the company had contacted the union and showed
him copies of two facsimiles. One (Exhibit D), dated 7
February 1990, from Mr. Ross Pollard, the managing director
of the applicant, relevantly read as follows:
"The Secretary,
Transport Workers Union of Australia, (Victoria Branch) By Facsimile No. (03) 646 1792 Dear Sir,
Our Mildura transport business has been contacted by your representative Mr. Kevin Connors on 23.1.1990 who has sought a meeting with us.
Our business is a member of the National Transport Federation Ltd. (NTF), which is authorised to act on our behalf in all industrial issues. We therefore advise your union to contact the NTF regarding your enquiries, before any meeting will be agreed to by us. The NTF can be contacted by telephone on (03) 640 8201 or by facsimile on (03) 640 8219. We trust that you will respect our right to be properly represented in this issue and await further word from the NTF before commencing further discussion with your union."
The other (Exhibit C), dated 12 February 1990, from Mr. Keith Wise, the Secretary of the Victorian Branch of the union, to Mr. Pollard, relevantly read as follows:-
"Re: Request by K. Connors Contrary to some companies (sic) belief, respondency to awards, State or Federal, carries with it responsibilities which cannot be discharged on your behalf by the N.T.F.
You are required to observe certain minimum conditions and keep wage records, etc. The union is entitled to seek to examine these documents and conditions, and in the event that these requests are refused, a breach of the relevant award may occur. This has nothing to do with the N.T.F., but is a legal requirement falling squarely on your company.
We suggest that your company meet with Mr. Connors as requested."
After seeing those facsimiles Mr. Robertson said he
would "have to go away and verify this". Mr. Helms
"believed" that Mr. Robertson made a phone call before he
returned, at about 5.30 pm on 15 February 1990, with Mr.
Hollis, another member of the Drivers' Committee, and told
Mr. Helms that there would be a strike. On Mr. Helms'
evidence it is not possible to make a finding as to precisely
what was said to him at that time by Mr. Robertson; he gave
evidence that Mr. Robertson said "We're taking the boys out"
(transcript p 251.3) but later he said that Mr. Robertson
had "said that we are going out" (transcript p 254.5).
A strike by the employee drivers began that night and
a picket line was established the following day, 16 February
1990 with four signs that read "T.W.U. picket line". At
about midday on 28 February 1990 (i.e. after the service of
the court's order) two of those signs were changed to read
"G.T.S. picket line" and the same change was made to a third
sign at about 4.00 pm on that day; the fourth sign remained
unchanged until 1 March 1990.
On 16 February 1990 Mr. Pollard spoke by telephone to
Mr. Keith Wise (the Secretary of the Victorian Branch). Mr.
Wise told him that "he knew nothing about the strike and that
he did not authorise it as he was at federal meetings all
week" and that the "employees had probably withdrawn their
labour themselves and that he supported this". He also told
Mr. Pollard that "he was getting a man organized to go up to
Mildura on Friday afternoon".
On Monday, 19 February 1990 Mr. Connors arrived at the
applicant's depot in Mildura. It is inferred that he was
sent by Mr. Wise. Mr. Connors was not present at the site
when the strike began nor when the picket line started.
Mr. Connors was an organizer of the Victorian Branch
of the union and under sub-rule 30(e) was "subject to the
control and direction of (the) Branch Committee of Management
as expressed through the Branch Secretary". Under sub-rule
30(a) that Committee "shall, subject to these Rules, have
control of all business of the Union within the area over
which it is constituted to operate".
On 28 February 1990 Mr. Gary Mann, warehouse manager
for Lindemans Wines Pty Limited, was visited by Mr. Watkins
of the AWU, Mr. Smythe, an AWU shop steward, and Mr. Hamish
Weir. Mr. Mann in his affidavit deposed that Mr. Weir
introduced himself as "... Hamish Weir and I am a TWU
organizer"; in his oral evidence Mr. Mann said that he
"believed" that he recalled Mr. Weir saying that he was a TWU
organizer (transcript 228). On that evidence, coupled with
the applicant's documentary evidence that Mr. Weir held the
office of "Trustee" of the Victorian Branch, I am not
prepared to find that Mr. Weir stated that he was "a TWU
organizer". Mr. Weir also said to Mr. Mann: "We are
determined not to lose this dispute with GTS and if you do
this (i.e. not load any of the applicant's trucks) for us we
will force GTS to pay award rates".
On the evidence Mr. Connors was on the picket line at
least on 19, 20, 21 and 28 February. In his affidavit, Mr.
Pollard deposed that on 20 February Mr. Connors "was standing
by the trucks of two contractors who had gone through the
picket line into (the) depot (at Mildura). He was writing
details down on a pad". During his cross-examination Mr.
Pollard said (transcript 268) that - on a day which was not
identified - Mr. Connors "was actually there organising the
bans and the pickets". I am not prepared to accept that oral
evidence. It did not appear in his affidavit and Mr.
Pollard, in his oral evidence, showed a distinct tendency to
"argue the case" for the applicant; in any event it is not
clear what he meant by "organising".
The union objected to the admissibility of an
affidavit sworn by Mr. D. F. Matthews, a director of the
applicant, on 6 March 1990 as to events on that day at
Mildura. The affidavit was admitted subject to objection.
It is now ruled that the affidavit is admissible. That
affidavit exhibited a note of a statement made by Mr.
Commissioner Neylon in proceedings before the Victorian
Industrial Relations Commission on 5 March 1990. That note
recorded the Commissioner as saying that on 23 February 1990
a notification had been received "from the State Secretary of
the Transport Workers' Union notifying the existence of a
dispute."
On 2 March 1990 Mr. Connors showed an identification
card to Mr. Helms, who gave evidence that, to the best of his
recollection, it said "T.W.U. and Kevin Connors with a photo
of him".
The Deputy Industrial Registrar's certificate (Exhibit
"B") listed both Mr. Connors and Mr. Hamish Weir as being
office holders of the Victorian Branch of the union - the
former as an Organizer who was a Committeeman and the latter
as a Trustee.
It was accepted by the applicant's counsel that those were the offices held but they contended that each was a servant or agent of the union itself - because of "the relationship between branch and federal union". Before leaving the facts it may be added that there was no evidence that the Victorian Branch or any Branch officer or any officer of the union played any part in the commencement of the strike or the establishment of the picket line; nor was there any evidence of any express authority conferred upon Mr. Connors or Mr. Hamish Weir by the union or by any Committee or by any officer of the union having authority to do so. As to two of the matters alleged in the Particulars of the Charge it should be said that (1) there is no evidence that Mr. Hamish Weir carried an identification card confirming "his authority to act on behalf of the respondent" (2) although there is evidence that Mr. Connors produced a card to Mr. Helms on 2 March 1990, the evidence does not satisfy me that that card confirmed "his authority to act on behalf of the respondent". Nor is there any evidence of the terms of the instructions (if any) given to Mr. Connors in relation to his visit to Mildura. There is no evidence that Mr. Connors attempted, on 28 February 1990, to induce or threaten Mr. Vorlicek not to load or remove goods from the applicant's premises at Mildura. Mr. Vorlicek made it plain to Mr. Connors that he was not attempting to load or unload product at the applicant's premises.
The court's order was made under the Trade Practices Act 1974. Section 45D(5) of that Act includes the following provision:
"If two or more persons (in this
sub-section referred to as the "participants") each of whom is a member or officer of the same organization of employees ... engage in conduct in concert with one another, ... the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants ..."
In Actors and Announcers Equity Association of Australia v Fontana Films Pty. Ltd. (1982) 40 ALR 609 the High Court held that that sub-section is invalid. The reasons for judgment of Murphy J. included (at 642) the following passage:-
"In the light of experience of Australian
industrial relations, it cannot rationally even be presumed that the conduct in concert of two or more members of an organization of employees is the conduct of the organization. The conduct is often unsupported by or occasionally opposed by the organization. Also such members are often members of other organizations and of industrial and non-industrial bodies which may sponsor the conduct. The fact is that hundreds of thousands of members of federal organizations (of employees) belong to trade or industrial unions registered under State Acts."
The need for evidence was emphasised by the High Court in The Commonwealth Steamship Owners' Association v The Federated Seamen's Union of Australasia (1923) 33 CLR 297 (the Seamen's Union) where Isaacs and Rich JJ. said (at 308) that:
"... no Court can act on mere suspicion,
particularly when the consequences are of a penal nature."
Similarly, in The Waterside Workers' Federation of Australia v Burgess Brothers Limited (1916) 21 CLR 129 (Burgess) Griffith CJ. said (at 134):
"... in a Court of Justice mere surmise or
suspicion is not sufficient. A person or a
corporation is not in a Court of Justice
held liable for the actions of others
unless his or its authority to do the
actions on his or its behalf is established
by evidence."
That statement concerned a civil action for damages for conspiracy "to cause and compel the plaintiff company to break their contracts with other persons working for them". Barton J. said (at 134):
"... If the Hobart branch had no authority
from the present appellants for their
action, the case against the latter fails
for want of evidence, even if the Hobart
branch, or its members, did actually
conspire and combine to cause the
respondent company to break their contract
with their customers ..."
His Honour also said (at 136):
"... There being no express authority
conferred either by antecedent instructions
or by the rules of the appellants, is an
authority to be implied from the relation
between it and the local branch? I find no
circumstances sufficing to raise that
implication, for I find nothing in the
relative positions of the two bodies to
warrant the supposition that the one is
responsible for the acts of the other not
expressly authorized. Indeed, there is
nothing to show that when the crucial
action was taken at Hobart the Waterside
Workers' Federation knew of what was being
done, nor has any document been referred to
which would show that it was at that time
even consulted as to the course of action
to be taken."
In the present case the evidence does not establish that (in the words of Barton J.) the union "was at that time even consulted as to the course of action to be taken" i.e. consulted by the Victorian Branch, or by any organizers or officers of that Branch in relation to any of the acts relied upon by the applicant as the basis for the charges. There was no evidence that the applicant or its solicitors, at any time relevant to the present proceedings, ever discussed - or even attempted to discuss - with any Federal officer of the union any aspect of the matters, including, for example, whether Mr. Connors or Mr. Weir had any authority to speak on behalf of the union. It should be noted, however, that I am not finding affirmatively that the union or its Federal officers were not consulted as to any relevant course of action. The Federal union knew because of its representation by counsel in proceedings brought by the applicant before von Doussa J. on 27 February 1990 that there were allegations that Mr. Connors had been on the picket on 19, 20 and 21 February 1990.
The applicant's counsel sought to rely on the union's knowledge coupled with its inaction in controlling office holders of the Victorian Branch. They relied on the union's knowledge of the court's order, of the existence of the picket line and of Mr. Connors presence on it in seeking to distinguish Burgess on the basis that in that case the governing body had no knowledge of the acts. The union was on 27 February 1990 served, by facsimile transmission from the applicant's solicitors, with a copy of the court's order, accompanied by a letter addressed to the attention of the Federal Secretary, Mr. Ivan Hodgson. That letter was in terms that appeared to assume that the organization and its officials would do "all that is necessary to ensure the immediate lifting of any bans and limitations ... and otherwise do all such things as are necessary to ensure compliance with the order."
A letter in identical terms was also sent by facsimile transmission to the Secretary of the Victorian Branch of the union on 27 February 1990. On 28 February 1990 the solicitors for the applicant wrote to the solicitors for the union stating that "despite service" of the order, members of the union were continuing to picket the applicant's premises; the letter put the union on notice that contempt proceedings would be issued unless the conduct complained of ceased forthwith. There was no response to those letters. In addition the applicant relied on the fact that on 6 March 1990, five days after the issue of the contempt proceedings, Mr. Connors was in Mildura and told Mr. Matthews that the picket was back on. A short time later on that day, the picket which had been lifted was back in place.
An analagous argument was put by the applicant in General Aviation Services (U.K.) Ltd. v Transport and General Workers' Union and Ors. (1975) ICR 276 in the Court of Appeal. As Scarman L.J. said (at 306-7):-
"There is one final point with which it is
necessary to deal. The union never
disciplined or dismissed the shop stewards:
how then can it be said that they did not
possess the authority of the union to black
GAS? This is a factor to be considered
with all the other circumstances: its
weight will vary from workplace to
workplace. If, as in Heatons' case, shop
stewards have a general implied authority
to take industrial action, the union has to
show some act on its part revoking or
limiting their authority: if, as was the
fact, in my judgment, at the airport, shop
stewards have no such authority, it does
not necessarily follow that the union has
adopted or authorised their actions by not
disciplining or dismissing them."In the present case, notwithstanding the lack of any reply by the union, the real position of the union is no more than one of inaction. The reason for such inaction is not known and as Griffith CJ. said in Burgess case "mere surmise or suspicion is not sufficient".
The applicant sought to rely upon the rules of the union in support of its contention that Mr. Connors and Mr. Weir were acting as the servants or agents of the union. Before turning to the terms of the rules, it is desirable to refer to the principles, enunciated by the High Court, relevant to a consideration of the rules, including the principles that (1) there can be "no presumption of authority for the agent to do what the principal could not lawfully do" and (2) that a "rule must be construed as authorizing the Branch to settle local disputes by legal, not illegal, methods".
As to the first of those two principles, in Burgess Isaacs J. (at 138) said:
"Consequently, on the well established
principles of law - the first, that of two
reasonably possible intendments that which
is in favour of legality is preferably
accepted (Co. Litt. 42a; Russell v
Amalgamated Society of Carpenters and
Joiners (1912) AC 421, at pp 435, 436 and
Amalgamated Society of Engineers v Smith
(1913) 16 CLR 537 at p 566), and the
second, that there is no presumption of
authority for the agent to do what the
principal could not lawfully do (Poulton v
London and South Western Railway Co. LR 2
QB 534, and Walters v Green (1899) 2 Ch D
696 at p 703) - rule 16 cannot be read as
impliedly giving authority to commit a tort
or other unlawful act."As to the second principle in the Seamen's Union (at 312), Higgins J. said:
"There is nothing in all this to suggest
that the Branch's action is to be treated
as the action of the Union. But even if
rule 71 is to be treated as making the
Branch an agent of the Union, the rule must
be construed as authorizing the Branch to
settle local disputes by legal, not
illegal, methods; and no act of the agent
can impose on the principal criminal
liability for breach of the award unless
the Union itself be proved to take part in
or authorize the commission of the breach
(Chisholm v Doulton (1889) 22 QBD, 736;
Roberts v Woodward (1890) 25 QBD, 412;
Emary v Nolloth (1903) 2 KB, 264)."In the Seamen's Union Knox CJ. cited Burgess with approval and Isaacs and Rich JJ. (at 307) rejected an argument that the decision of a Branch meeting constituted a breach by the registered organization, saying:-
"It was said that the mere fact of that
decision being made at the Branch meeting
constituted a breach by the organization of
the term of the award referred to. The way
in which that argument was presented was as
follows:- By the registered rules of the
respondent organization, Branches are
established; and it was contended that each
Branch so completely represented the whole
organization at its own locality that
whatever it did, rightly or wrongly, must
be taken to be the act of the whole
organization. ... The Union is composed of
members as its units. For convenience,
Branches are established at large shipping
centres, but the government and control of
the Union as a corporate or quasi-corporate
body is vested in a general meeting of the
members, the chief executive authority
being committed to a Committee of
Management following the instructions of
the meeting of members. A Branch has its
own business; but its own Branch business
is not the business of any other Branch,
and still less the business of every other
Branch, or of the Union as a whole."
Higgins J. said (at 310-311):
"But even if we can fairly treat the
resolution of the Victorian Branch as an
aiding of job control, it was a resolution
of the Branch, not of the Union. Counsel
for the Association, however, have examined
the rules of the Union, and contend that
the action of the Branch is action of the
Union. In particular, reliance is placed
on rule 71: "In the event of a dispute
occurring as to wages or working conditions
in any State, the members of the Branch in
such State may take such steps as will lead
to an immediate settlement of the dispute,
but if there should be any likelihood of
the dispute extending beyond the limits of
the State, the Branch officials shall
immediately notify the General President
and the General Secretary, and these two
officials shall take such steps as the
necessity of the case requires." But, in
the first place, if the Branch exercise
this power to try to settle a dispute
confined to a State, the action which it
takes is not necessarily the action of the
Union. A Branch cannot usually be treated
as an agent of the Union, so as to make the
acts of the Branch the acts of the Union
(Denaby and Cadeby Main Collieries Ltd. v
Yorkshire Miners' Association (1906) AC
384; Smithies v National Association of
Operative Plasterers (1909) 1 KB, 310).
Counsel cannot point to any clause in the
rules of the Union that prevents these
cases from applying to this case."
Lastly, Starke J. said (at 315-316):
"The relation of the Union and the Branches
under these rules is not very clear, but
they do not, in my opinion, constitute the
Branches the Union for local purposes, nor
give them any power to commit or bind the
Union or other members of the Union by
their resolutions (Waterside Workers'
Federation of Australia v Burgess Brothers
Ltd. (1916) 21 CLR 129; Denaby and Cadeby
Main Collieries Ltd. v Yorkshire Miners'
Association (1906) AC, 384; Smithies v
National Association of Operative
Plasterers (1909) 1 KB, 310). The Branches
have, no doubt, some powers of
self-government with respect to local
affairs, but those powers belong to them as
independent units and not as
representatives or agents of the whole Union."
Union."
The applicant company sought to meet the principles enunciated in Burgess and the Seamen's Union case by relying upon what was said by Fullagar J. (with whom Dixon CJ. and Kitto J. agreed) in Williams v Hursey (1959) 103 CLR 30. His Honour said (at 81):-
"But in truth, as has been said, the branch
has in law no existence separate from that
of the federation. It is merely an
aggregate of members which is an integral
part or section of the whole federation,
having that degree of autonomy which is
permitted to it by or under the
constitution of the federation. It
represents the federation in the port of
Hobart. In and for the port of Hobart it
is, so to speak, the federation."In that case there was an express finding of fact by the trial judge which was accepted by the High Court. As Fullagar J. said (at 81):
"There was abundant evidence to support his
Honour's finding that the continued
formation of those lines and the
obstruction of the Hurseys' path to work
was not a matter of mere spontaneous action
on the part of individual members of the
branch, but was organized and directed as a
branch activity ...
(At p 82) ... But the members of the
governing body of the federation were well
aware from the beginning of what was going
on, and the federation made it known to the
branch, and took steps to make it known to
the public, that the branch had their full
support and sympathy in 'the struggle' ..."The applicant's counsel have argued that the decision was not dependent on those findings of fact. However, in my opinion the reasons for judgment of Fullagar J., relied upon by the applicant, should not be read as impliedly cutting down the principles enunciated by the High Court in Burgess and in the Seamen's Union case (supra). In this connexion it should be noted that Burgess was itself referred to in Williams v Hursey (at p 82) by Fullagar J. - on a different point but without any suggestion that it was no longer a correct statement of the law.
The rules of the union were analysed by senior counsel for the applicant, who referred to Rule 2 - the union's objects, Rule 5A(a) - supreme control of union vested in Federal Council, Rule 5B(g) - the formation of Branches for "the purpose of assisting the Federal Council to control and manage the Union" - see also Rule 6(a).
He also cited rules 10(a) and 22(b)(iii). He placed particular reliance upon Rule 30(a) (which is referred to earlier) and to Rule 32(e) which requires Branch Organizers to "assist in the work of the Branch generally, and discharge such duties as may be allotted to them by the Branch Secretary".
He also relied on Rule 31 which provided as follows:- "31 - Mutual Support
(a) All Branches are pledged to loyally support each other, financially or otherwise, when required.
(b) The Federal Council may withhold assistance from any Branch entering upon a dispute without first having obtained the sanction of the Federal Council.
(c) The Federal Council may pay all or any part of the expenses incurred by or on behalf of a Branch in an appeal to a Board or Court of Conciliation or Industrial Appeal or other approved tribunal."
Senior counsel for the union, in his submissions as to the rules, placed considerable reliance upon Rule 52 which includes the following provisions:-
52 - Industrial Awards, Agreements and
Disputes
Federal Industrial Matter
....
(b) ....
Whenever an industrial dispute occurs ... in a State or Territory, and such dispute may affect members in another Branch ..., the Branch Secretary of the Branch concerned shall forthwith inform the Federal Secretary in writing of all relevant details of the industrial dispute. When any dispute occurs involving members in more than one Branch, no action including a cessation of work shall be taken without the approval of the Federal Council or Federal Committee of Management. ....
Branches - State Industrial Matters
(d) An industrial dispute or other industrial matter either of which is solely confined to one State ... may be submitted to the appropriate State tribunal which functions within the State concerned. All documents used in connexion with an industrial dispute or other industrial matter as defined in this clause shall be signed by the Branch Secretary of the Branch concerned, otherwise the Branch Committee of Management of the Branch concerned is empowered to control or manage, by resolution at a meeting, an industrial dispute or other industrial matter not covered in clauses (a), (b) or (c) of this Rule."
The applicant in its written submission advanced an argument as to the construction of Rule 52 which in my opinion cannot be upheld. I accept the written submission by counsel for the union as to the construction of the relevant paragraph; I accept that the second last paragraph of Rule 52(b) is directed towards a situation where a dispute, believed to be intrastate, may "affect members in another Branch or ...". The last sentence of Rule 52(b) is directed towards disputes involving "members in more than one Branch". The word "may" is to be contrasted with the word "involving".
In the light of the passages quoted from both Burgess and the Seamen's Union case, in my opinion the rules relied upon by the applicant do not support its submission. It follows that the applicant's motion must be dismissed.
The union's counsel also advanced submissions (transcript 334) that even if, contrary to their submission, the union was liable for the actions of Mr. Connors and Mr. Hamish Weir, those actions did not constitute any breach of the court's order. In the light of the conclusion already expressed, it is not necessary to deal with those submissions; having regard to the fact that a fresh motion for alleged contempt by persons, including Mr. Connors, has been filed in the court, it is undesirable that I should express any opinion as to those submissions.
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Contempt of Court
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Interlocutory Orders
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Costs
18
10
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