In the matter of an Application by Porter, D.A. in relation to Transport Workers Union of Australia
[1989] FCA 469
•28 JULY 1989
Re:In the matter of an Application by DONALD ALEXANDER PORTER in relation to
the Transport Workers' Union of Australia
No. VI 14 of 1989
FED No. 469
Industrial Law
32 IR 105
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Industrial law - registered organisation - whether invalidity in management or administration of branch - persons treated as members without signed or completed membership form forwarded to branch secretary - whether membership should be validated.
Industrial Relations Act 1988 s.258
Conciliation and Arbitration Act 1904 s.171c
HEARING
MELBOURNE
#DATE 28:7:1989
Counsel for the Applicant: Mr H Borenstein
Solicitors for the Applicant: McMullin, Coate & Co.
Counsel for the Transport Workers' Union of Australia: Mr M Black QC and Mr S Howells
Solicitors for the Transport Workers' Union of Australia: Ryan Carlisle Needham Thomas.
Counsel for the members of the committee of management of the Victorian Branch: Mr D Staindl
Solicitors for the members of the committee of management of the Victorian Branch: Maurice Blackburn & Co.
Mr Dinh Thanh Tuan in person.
JUDGE1
The applicant sought a determination by the Court of the question whether an invalidity has occurred in the Victorian branch of the Transport Workers' Union of Australia in relation to the admission of persons to membership without signed applications for membership being submitted and, in the event of a finding that an invalidity has occurred, an order of the Court to validate such admission to membership.
The application is made pursuant to s. 258 of the Industrial Relations Act 1988. The relevant provisions of that section are as follows.
"(1) An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Court for a determination of the question whether an invalidity has occurred in:
(a) the management or administration of the organisation or a branch of the organisation; ......
......
(2) On an application under subsection (1), the Court may make such declaration as it considers proper.
(3) Where, in a proceeding under subsection
(1), the Court finds that an invalidity of the kind referred to in that subsection has occurred, the Court may make such order as it considers appropriate:
(a) to rectify the invalidity or cause it to be rectified;
(b) to negative, modify or cause to be modified the consequences in law of the invalidity; or
(c) to validate any act, matter or thing rendered invalid by or because of the invalidity. ......
(5) The Court shall not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:
(a) the organisation;
(b) any member or creditor of the organisation; or
(c) any person having dealings with the organisation.
(6) The Court may determine:
(a) what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section; and
(b) whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.
(7) This section applies:
(a) to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section);
......".
The applicant is a member of the Transport Workers' Union of Australia ("the Union"). Mr Borenstein of counsel appeared for the applicant. The Union is an organisation registered pursuant to the Industrial Relations Act 1988. Mr Black QC and Mr Howells of counsel appeared for the Union. They did not oppose the application, but made brief submissions designed to assist the Court as to certain elements of it. The application was opposed by Mr Staindl of counsel, appearing for the members of the committee of management of the Victorian branch of the Union.
When the application first came on for hearing on 19th June 1989, orders were made and directions were given, designed to notify, as far as possible, the 142 persons who were said to be shown in the records of the Victorian branch of the Union as having paid contributions to the Union but as not having submitted applications for membership in accordance with the rules of the Union. In accordance with those directions, a letter was sent to each of those persons for whom an address was shown in the records of the Victorian branch of the Union. The letter drew the attention of the addressee to the nature of the proceeding, and indicated that the recipient could attend at the Court today to make any submissions that he or she might feel appropriate. That letter was sent to 139 persons, they being the persons whose addresses were shown in the records of the Victorian branch of the Union. A handful of them were returned to the sender, by reason of the addressee not being known at the address concerned. In response to the letter, one person, Mr Dinh Thanh Tuan has appeared in person. He has made submissions to the effect that he wants his membership of the Union to be validated.
The evidence and certain admissions made do disclose that there are persons shown in the computerised records of the Victorian branch of the Union as having paid moneys by way of contributions to the Union, but as not having signed or completed or forwarded application forms. It appears from the computerised records that each of those persons has been allocated a roll number and that a date on which such person is said to have joined the Union is entered into the computer records.
The relevant provisions of the rules of the Union are to be found in rules 10 and 11, and I read the parts of those that are material to this proceeding:
" 10 - APPLICATION FORM Every person making application to become a member of the Union on and after 1st January 1970 shall sign and complete or cause to be completed an application form. The application form shall be in accordance with the Form set out hereunder:".
There is then set out in the rule a form of application.
" 11 - ADMISSION Every person making application to become a member of the Union shall, after signing and the completion of the application form, forward or cause to be forwarded that application form to the Branch Secretary of the Branch in the State or Territory where the applicant for membership presently resides....".
I omit the further words in that paragraph, which are not material. The following paragraph reads:
"Every person shall become a member of the Union immediately upon signing the application form whether an entrance fee has been paid or not, unless at the next General or Committee of Management Meeting of the Branch of Sub-Branch to which the application is submitted objection is taken to the admission of such person. In the event of objection being taken to the admission of the applicant, such applicant shall be admitted upon a majority of the members assembled at such meeting voting in favor of the admission of the applicant, but not otherwise."
I need not read any further provisions of rule 11.
It was common ground amongst all of the counsel appearing in the case that persons who had not complied with the provisions of rules 10 and 11, by signing and completing or causing to be completed application forms and by forwarding or causing to be forwarded those application forms to the branch secretary, had not become members of the Union. The difference that lay between the parties was as to whether what had been done with respect to those persons constituted an invalidity in the management or administration of the branch, and as to whether any such invalidity should be rectified by order of the Court.
Mr Borenstein, on behalf of the applicant, relied heavily upon the decision of the Full Court in Troja v. Australasian Meat Industry Employees Union (1978) 46 FLR 341. In that case, the Full Court did decide that there had been an invalidity, in that there had been a failure to comply with the provisions of the rules of the relevant organization in relation to the admission of some persons as members thereof. The Court did make an order under s.171C of the Conciliation and Arbitration Act 1904 to the effect that all persons who would be members of that organization, were it not for the effect of a failure to comply with the provisions of its rules, should be treated for all purposes as having been validly admitted as members of the organization.
Mr Staindl sought to distinguish Troja's case, on the grounds that the application in that case was made in the context of an election inquiry, the rules of the organization the subject of that case were more stringent as to admission requirements, and there was evidence in that case of a general practice not to require applicants to sign applications for membership. He drew attention to some evidence in this case that ordinarily, when it is discovered that a person who has paid contributions to the Victorian branch of the Union has not signed or completed or forwarded an application form, then an application form is sent to that person. In my view, whilst those distinctions do exist between the facts of the present case and the facts of Troja's case, the principle which underlay Troja's case is applicable in the present. My view is that the manner in which these persons who have paid contributions to the Victorian branch of the Union have been treated in the branch records gives rise to an invalidity in the management or administration of the branch. The sending to those persons of membership cards, the allocation of membership numbers and the treating of them as having joined by allocating a joining date all indicate that those persons have, at least to some extent, been treated as members without having been validly admitted as members.
The question then arises as to whether their membership should be validated. The Court is required to be satisfied, in terms of s.258(5), that an order validating their membership would not do substantial injustice to the Union, any member or creditor of the Union, or any person having dealings with the Union. It is clear, as Mr Black submitted, that there would not be any injustice resulting to the Union, to any creditor, or to any person having dealings with the Union. Mr Staindl agreed with that proposition. Both Mr Black and Mr Staindl also submitted that the question whether injustice would be done to any member of the Union is really a question for members. As presently advised, I am not able to see how injustice could be done to existing members of the Union by the validation of membership of persons who have been treated as members, apparently without objection, in the past.
There is a further stage which must be addressed, and that is the fact that the Court has a discretion under s. 258 of the Act whether to make an order or not. Some submissions were addressed to the question of this discretion. In the first place, it is clear that, because no application form has been received in respect of the persons concerned, no one has had as yet an opportunity to object to the membership of that person at a general meeting or committee of management meeting of branch, as is contemplated by rule 11. This objection can be overcome, I think, by framing an order in particular terms so that the validation of the membership of a particular person will only be in respect of the failure to provide an application form and will not be in respect of any other consideration. Such an order would also overcome any difficulty that might be caused if a person were found not to be eligible for membership.
In the second place, Mr Staindl drew attention to difficulties which have apparently confronted the branch in the past in suing on behalf of the Union for contributions where no signed application form exists. As Mr Staindl correctly pointed out, a person who has not signed an application form has not agreed to be bound by the rules of the Union. This is a weighty consideration on the question of whether the membership of such a person should be validated. On the other hand, where a person has paid money to the Union and received a card indicating that he or she is a member, other considerations arise. If such person were to seek to sue the Union to recover contributions paid as money paid on a consideration which has wholly failed, questions of estoppel may arise, particularly where such person has had the benefit and advantages of membership. In my view, the balance of factors comes down in favour of the making of a validation order in the present case.
One further point should be dealt with. In points of defence which were filed on behalf of the members of the committee of management, the question was raised whether this application has any connection with elections which are in the course of being conducted for various positions in the Victorian branch of the Union. One of the grounds on which the members of the committee of management sought to resist the making of a validation order was that it would not have any effect on the conduct of that election. In my view, in this proceeding, I am not concerned at all with the conduct of that election. Whether or not any validation order that I make has any effect with respect to that election is not a question which I propose to determine today. In deciding to make this validation order, I do not have any consideration at all relating to the election in my mind.
For these reasons I make the following orders:
1. The Court declares that an invalidity has occurred in
the management or administration of the Victorian branch of the Transport Workers' Union of Australia, in that there has been a failure to comply with rules 10 and 11 of the rules of the Union with respect to persons who have paid money to the Union by way of contributions and who have been allocated roll numbers and given membership cards, but have not signed or completed or caused to be completed application forms for membership, or forwarded or caused to be forwarded application forms for membership to the branch secretary of the branch.
2. Being satisfied that the following orders will not do
substantial injustice to the Union or to any member or creditor of the Union or to any person having dealings with the Union, the Court orders that all persons who would be members of the Transport Workers Union of Australia in its Victorian branch, were it not for the effect of failure to comply with rules 10 and 11 of the rules of the Union by failing to sign or complete or cause to be completed application forms for membership, or failing to forward or cause to be forwarded application forms for membership to the branch secretary of the branch before the date of this order, shall be treated for all purposes as having been validly admitted as members of the Union.
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