In the Matter of an Application by Pavlic, S. for an inquiry into an election in the Tasmanian Branch of the Federation of Industrial, Manufacturing and Engineering Employees

[1993] FCA 791

"I ,993

JUDGMENT No. ... l ........ ... ........ ....

C A T C H W O R D S

Industrial law - registered organisation - election - inquiry whether applicant a member of organisation - conditions of eligibility for membership - construction - whether storeperson and fork lift driver a "Machine Operator".

Words and phrases - "Machine Operator".

Industrial Relations Act 1988 s.218

R. v. Gough; ex parte Municipal Officers' Association of

Australia (1975) 133 C.L.R. 59.
Joyce v. Christoffersen (1990) 26 F.C.R. 261.

Burgess v. John Connell-Mott, Hay & Anderson Pty. Ltd. (1978)

37 F.L.R. 386.

IN THE MATTER OF AN APPLICATION BY SUSAN PAVLIC FOR AN INQUIRY INTO AN ELECTION IN THE TASMANIAN BRANCH OF THE FEDERATION OF INDUSTRm, MANUFACTURING AND ENGINEERING EMPLOYEES

27TH OCTOBER 1993

NO. TI 3 OF 1993

GRAY J

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	1 No. TI 3 of 1993
1
INDUSTRIAL DIVISION	1
IN THE MATTER of an Application by =SAN PAVLIC
for an Inquiry into an
Election in the Tasmanian Branch of the FEDERATION OF INDUSTRIAL. MANUFACTURING and ENGINEERING EMPLOYEES
JUDGE:	Gray J

m: Hobart

m:  27th October 1993

EX TEMPORE REASONS FOR JUDGMENT

conducted in the Tasmanian Branch of the Federation of In April and May of this year, elections, were	Industrial, Manufacturing and Engineering Employees ("the
federation"). The federation is an organisation of employees, registered pursuant to the I n d u s t r i a l R e l a t i o n s A c t 1988 ("the
Act"). Its elections are therefore conducted by the Australian
Electoral Commission.
In accordance with rule 30(l)(a) of the rules of the federation, and rule 5(1) of its branch rules, nominations were called on 1st April and closed on 14th April 1993. There were two nominations for the office of branch secretary of the Tasmanian Branch, namely John Philip Glisson and Susan Pavlic. The returning officer rejected the nomination of Susan Pavlic, on the ground that he could find no record in the records of the Tasmanian Branch of her being a financial member at the close of nominations. On 11th May 1993, he declared John Philip Glisson elected unopposed.
On 30th June 1993, Ms. Pavlic filed in the Tasmania District Registry of the Court what was in form an application pursuant to S. 218 of the Act. That section provides as follows :

"Where a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Court into the matter."

The irregularity alleged in the application was the failure of

alleged that she had been a financial member of the federation	the returning officer to accept Ms. Pavlic's nomination. She
for more than one year, as required by rule 4 of the branch rules, that she was a financial member, and that her name did not appear in the roll of members of the Tasmanian Branch by reason of administrative error.
The matter came on for hearing at Hobart on 26th October 1993. Counsel appeared for Ms. Pavlic and for the federation. Counsel also announced an appearance for the returning officer, but was excused from attendance on the basis that no allegation was made concerning the conduct of the returning officer. It appeared that issues would be raised concerning the alleged cessation of membership of the federation by Ms. Pavlic, due to the operation of rule 12(7) of the federation's rules, the validity of that rule, Ms. Pavlic's financial status, and whether she could be said to have been a member of the Tasmanian Branch at the relevant date. The evidence necessarily dealt with the manner in which Ms. Pavlic purportedly became a member of the federation. The question whether she did ever become a member goes to her capacity to make the application, and therefore to the jurisdiction of the Court, as well as to the issue of her eligibility to nominate for the office of branch secretary. It was therefore argued after the close of the applicant's case and the tender by counsel for the federation of some evidence relevant to the issue.

The federation came into being as a result of the

amalgamation of two pre-existing registered organisations, which was effective on 15th July 1991. One of the amalgamating organisations, the Australasian Society of Engineers ("the society") became deregistered, and the other, the Federated Ironworkers' Association of Australia, became the amalgamated organisation with its new name. The members of the society became members automatically of the amalgamated organisation. Ms. Pavlic claims her membership of the federation by reason of her purported membership of the society prior to 15th July 1991.

She contends that her membership arose from her completion of a proposition form to the Victorian Branch of the society, as required by rule 4 of the rules of the society. That rule made the membership effective from the date of signing of the proposition form. Ms. Pavlic's proposition form bears the date 4th July 1989 as the date of admission to membership. It recites that Ms. Pavlic was employed as a "storeperson" by "Australian Controls" at that time.

The only evidence of the rules of the society is a certified copy of them in the form they took on 14th January 1991 and at all times thereafter until the date of the amalgamation. It is necessary to apply the presumption of continuance and to accept that, in the absence of evidence to the contrary, the rules of the society were the same in all

material respects on 4th July 1989 as they were at the later dates. On this assumption, when Ms. Pavlic completed her	proposition form, rule 2A of the rules of the society was in
the following form:

"2A - CONSTITUTION

This Society shall consist of members engaged in any of the following trades or branches of trades:

(a)

Engineers, Fitters, Turners, Water Meter Fitters, Tool and Gauge Makers, Die Sinkers, Mechanical and/or Scientific Instrument Makers, Scale Makers and Adjusters, Safe Makers, Pipe Fitters, Motor Mechanics, and Tuners and Testers, Cycle and Motor Cycle Mechanics, Typewriter Mechanics, Patternmakers, Coppersmiths, Brass-finishers, Engineering and General Forgers, Forge Furnacemen, Blacksmiths, Shipsmiths, Angle-Ironsmiths, Springsmiths, Spring Fitters, Welders, Oxy-Acetylene Cutters, Locksmiths, Mechanical Draughtsmen, Millwrights, Iron and Steel Rollers, Electrical Fitters, Electrical Mechanics, Machine Makers, Milling Machinists, Planers, Slotters, Borers, Shapers, Drillers, Pollshers, Grinders and Lappers, Bolt and Nut Machinists, Agricultural Implement Makers, Panel Beaters (restricted to Panel Beaters employed in the Australian Capital Territory by the Department of the Capital Territory in the Transport Workshop), Gunsmiths, Technicians (except persons who are members or eligible for membership of the Association of Draughting, Supervisory and Technical Employees), and any other Machine Operators or Mechanics employed in the Engineering, Locomotive , Shipbuilding, Rolling Stock, Aircraft, Munition and Iron Trades, or in any other Industry, and the paid officials of the Society.

(b)

Smiths' strikers and mechanics' assistants or groups of strikers and assistanrs engaged in any of the above trades, deciding to amalgamate with or join this Society shall be admitted upon such terms as shall be agreed upon by the Federal Council and consistent with the rules of the Society, so long as it is not antagonistic to any other Trade Union dealing solely with that class of worker and operating in the immediate locality."

From 13th February 1989 until 31st August 1990, Ms. Pavlic was employed in a business known as Australian Controls. That firm operated at premises in Airport West, in Victoria. It employed "close to" one hundred employees. Part of its business was devoted to manufacturing, in which approximately eighty of the employees were engaged. The products manufactured were spark plug leads and other electrical cables for motor vehicle manufacturers, extruded rubber products, including solar water heating material for swimming pool manufacturers and car door trims, moulded plastic products and refrigeration units for cooling beer barrels. Another part of the business was devoted to the assembly of imported parts, including contact points, car horns and other electrical parts for cars, and carburettor kits. Finally, the business was involved with packing and distribution of the goods manufactured on the premises and of those imported and assembled. The imported and assembled parts were placed in branded packaging for Repco and Lorimer.

Ms. Pavlic was classified as a process worker. In fact, in her own words, she "picked, packed and despatched orders". In a previous account of her duties, she described them in writing as: despatch and delivery, stock adjustment, physically and by computer, stock take, supervisor and fork lift driver. There were some six employees, of whom Ms. Pavlic was one, who functioned as storepersons. Each had particular responsibility for some aspect of the goods in which the business dealt. Thus, one was responsible for reels of the solar heating material and another for the spark plug leads for	motor vehicle manufacturers. Ms. Pavlic's responsibility was	for the Repco and Lorimer parts. The one exception to this
division of responsibility was the beer barrel coolers; all of the storepersons handled them. The operation involved driving a fork lift truck to the part of the premises where a cooler was, picking up a pallet with the cooler, bringing it to the area of the premises from which goods were despatched, wrapping it and loading it onto a truck. The reason for the lack of division of responsibility, as Ms. Pavlic described it, was that the beer coolers were "only a small thing", which had just started; "there wasn't a huge amount of orders" and orders were "infrequent".
It is worth noting that, when first asked about her work at Australian Controls, in her evidence in chief, Ms. Pavlic said, "I was a storeperson just dealing with the distribution of automotive parts, a fork-lift driver."
It is well established that the rules relating to eligibility for membership of an organisation of employees registered under the Act may be expressed in terms of the occupations of employees or the occupations of employers, or some combination thereof. That is to say, the rules may make eligible for membership persons pursuing particular occupations, irrespective of the nature of the businesses in which their employers are engaged, or they may make eligible for membership persons employed in businesses of particular kinds, or they may make eligible for membership persons who pursue particular occupations in the employ of people who conduct businesses of particular kinds. On close examination,
rule 2A of the society's rules is seen to express criteria of the first kind. The callings listed in para. (a) of the rule, d o h to "Mechanics" are callings of employees. All of them are qualified by the words, "in the Engineering, Locomotive, Shipbuilding, Rolling Stock, Aircraft, Munition and Iron Trades", which refer to callings of employers. The inclusion of the words "or in any other Industry" immediately following that list of employer callings, however, appears to make the employee callings the dominant element of the rule. Persons following any of the employee callings listed were eligible to be members of the society, whatever the businesses of their employers. Counsel for Ms. Pavlic put that the words 'any other industry" could be read down by reference to the list of employer callings. I doubt that this is so. Persons may be employed in any of the employee callings listed in a variety of enterprises. Some may be involved in the manufacture of goods for sale; others may be involved in the maintenance of machinexy used for the manufacture of other goods. Even if the words are to be read down, the result of this case would be no different.
The work done by Ms. Pavlic at the date of her completion of the proposition form did not answer any of the descriptions in para. (a) of the rule, as far as the word "Technician". She was not a "Mechanic". Nor could it be said that she was an "assistant engaged in any of the above trades",
within the meaning of para. (b). The question of her eligibility for membership thus falls to be determined
according to whether she could be described accurately as a "Machine Operator". I assume that Australian Controls could be described accurately as being in the "Engineering" trade, at least as to that part of its business which involved manufacturing. This conclusion is of little moment, however, '
because if Ms. Pavlic was a "Machine Operator", within the

meaning of the rule, she was eligible to be a member if her
employer was engaged "in any other Industry".

An analysis of rule 2A leads to the conclusion that the phrase "Machine Operator" must have a more restricted meaning than that for which counsel for Ms. Pavlic contended. The only aspect of the duties of Ms. Pavlic that was relied on to bring her within the rule was her driving of a fork lift truck. Assuming that this constituted a substantial portion of her duties, it could not bring her within the meaning of that phrase in the rule. If it did, the rule would be broad enough to encompass any person, employed in any industry, operating a machine. Word processor operators, gardeners using lawnmowers, clerks using calculators, people making garments, canteen staff making espresso coffee and all truck and car drivers would be included. It is plain from its context that the phrase "Machine Operator" has a particular meaning, commonly understood in relation to what are known colloquially as the

metals. Examples are metal presses, milling machines and	for the manufacture of articles from solid materials, uiually "metal trades". It means a person operating a machine designed
lathes, although there are no doubt many more. Such machines may be used in the manufacture of goods in the "Engineering, Locomotive, Shipbuilding, Rolling Stock, Aircraft, Munition and Iron Trades", where those trades constitute the businesses of employers. They may also be used in "any other Industry", when the people who are employed to operate them make or repair parts for the maintenance of machinery and equipment used in the production of goods or the performance of other tasks. If it is necessary to resolve ambiguity in a rule relating to conditions of eligibility, resort may be had to the rule specifying the description of industry in or in connection with
which the organisation was registered. See R. v. Gough; Ex
p a r t e Municipal Officers' A s s o c i a t i o n o f A u s t r a l i a ( 1975) 133
C.L.R. 59, at p. 69. The relevant rule of the society, rule 2, specified "Engineering" as the industry. That rule supports the restriction of the phrase "Machine Operators" in rule 2A(a) to what might properly be called operators of engineering machines.
Counsel for Ms. Pavlic argued in favour of a different restriction on the meaning of the phrase "Machine Operator". Her contention was that the rule took on a flavour from the list of employer callings, so that the operator of any machine, including a fork lift, in what might be called the "Engineering" industry, in the sense of employer calling, was
warrant for construing a list of employee callings in that properly described as a "Machine Operator". There is no
manner.
Counsel for Ms. Pavlic also argued that, even if she were not engaged in the actual performance of duties that would bring her within the ambit of rule 2A of the society's rules, the fact that she might be called upon by her employer to perform those functions was enough so to bring her. Ms. Pavlic gave evidence that, in 1990, she had been required by Australian Controls to go into the manufacturing side of the business. In the course of her duties there, she rotated with other employees in various manufacturing processes, including machines for making spark plug leads. Her classification as a process worker was of some significance in this respect. The real question, however, is not what the employee might have been called upon to do, but what he or she was actually doing at the date of attempting to become a member of the
organisation concerned. Cases such as Joyce v . Christoffersen
(1990) 26 F.C.R. 261, at pp. 271-272 and 279 demonstrate that attention is to be paid to the primary function or functions and to the substance of the duties which an employee is engaged to perform, when determining the eligibility of that employee to belong to an organisation. In that case, a group of people engaged in stores work were held not to have been "engaged in a clerical capacity", despite the considerable amount of recording which each performed. Their primary functions were to receive, store and issue items required for use in their
picking, packing and despatching goods. Even if the fork lift employer's operations. In the present case, the primary function of Ms. Pavlic, and the substance of her duties, was
driving she did involved the operation of a machine in the relevant sense, it was not enough to make her a "Machine Operator" for the purpose of rule 2A.
It is plain, therefore, that Ms. Pavlic was not eligible to be a member of the society at the time when she was purportedly accepted as one. It is well established that someone who does not satisfy the criteria of eligibility for membership of an organisation registered under the Act does not become a member, even though apparently accepted as one. See, for instance, Burgess v. John Connell -Mott, Hay and Anderson
Pty. Ltd. (1978) 37 F.L.R. 386, at p. 390. Ms. Pavlic did not
become a member of the society. No subsequent event was relied on as having validated her invalid membership. She could not therefore satisfy the requirement of S. 218 of the Act that she be a member of the federation, or have been a member of the federation within the period of twelve months preceding the making of her purported application. The Court lacks jurisdiction to deal with that application, which must therefore be dismissed.

Solicitor for the Applicant:	Butler, McIntyre & Butler
Counsel for the Applicant:	Ms. M. Hickey
Solicitor for the Respondent:	Messrs. McClellands
Counsel for the Respondent:	Mr. M. Sweeney

Solicitor for the Australian Electoral Commission:
Australian Government Solicitor
Counsel for the Australian Electoral Commission:

Mr. D. Wilson

Date of Hearing:	27th October 1993
Date of Judgment:	27th October 1993

I certify that this and the preceding (13) thirteen pages are a true copy of the reasons for judgment of his

Honour Justice Gray.

Associate.

C ?

Date: 527 1 1 3

JUDGES' CHAMBERS.
FEDERAL COURT OF AUSTRALIA,
450 LITTLE BOURICE STREET,

MELBOURNE 3000

4 November 1993

0 5 NOV 1993

MS Elizabeth Harrison
Library Services
Principal Registry
Federal Court of Australia
Level 19
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Madam

I now enclose the following Reasons for Judgment together with its disk to enable you to update the Computerised Legal Information Retrieval System:-

1.    In the matter of an Application by Susan Pavlic for an Inquiry into an Election in the Tasmanian Branch of the Federation of Industrial, Manufacturing and Engineering Employees.

No. TI 3 of 1993

I look forward to the return of the disk on completion.

Yours faithfully

CAROL DAVIES
Secretary to Gray J.