Muller, M. v Keating, R.J

[1990] FCA 149

Re: MERVYN MULLER
And: RONALD J. KEATING; DAVID H. HARRISON; AUSTIN VAUGHAN; THE MEMBERS or THE
CONSTITUTED STATE COUNCIL OF THE AMALGAMATED METAL WORKERS' UNION (QUEENSLAND
STATE COUNCIL); GEORGE CAMPBELL; and AUSTIN VAUGHAN
No. QI4 of 1990
FED No. 149

COURT

IN THE FEDERAL COURT of AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.(1)

CATCHWORDS

Industrial - entitlement to remain a member of an organisation purported "termination" of membership unauthorised by union's rules - whether entitlement to dual membership of unions discretion to refuse relief where failure to take all steps to resolve matter internally.

Industrial Relations Act 1988, ss.209, 261

Mervyn Muller v. Ronald J. Keatinq and Ors

HEARING

BRISBANE

#DATE 30:3:1990

Counsel for the applicant: Mr G.C. Martin

Solicitors for the applicant: Brittan and Associates

Counsel for the respondents: Mr T. Matthews

Solicitors for the respondents: Quinlan Miller and Treston

ORDER

It is ordered that the proceedings be amended deleting the name of the fourth respondent and instead inserting the names: W. Fleming, L. Byrne, N. Kirke, J. Hutton, V. Mitchell, H. Smith, P. Wetherall, I. McComb, N. Goodwin, D. O'Sulllvan, S. Thompson and M. Tanzar.

1. It is declared that the applicant is a member of the Amalgamated Metal Workers' Union.

2. It is ordered that the respondents treat the applicant as such a member.
   Note: Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules.

JUDGE1

In these proceedings, the applicant claims relief against the respondents under s.209 or alternatively under s.261 of the Industrial Relations Act 1988. The former provision enables a member of an organisation to apply to this Court for an order giving directions for the performance or observance of rules. The latter enables an application to be made to resolve questions as to the entitlement of a person to be admitted as a member of an organisation or to remain a member of an organisation.

1. The applicant is, or was until recently, a member of the Amalgamated Metal Workers' Union, and he complains that on 22 February 1990, the Queensland State Council of that union decided that a letter should be written to him:
   

"outlining the details of the complaints laid against him and seeking his response to the matters raised, and that if member M. fails to refute the complaints within seven days, he be advised that his membership in the AMWU will be terminated and that his employer will he advised accordingly."

1. Such a letter was written by the State Secretary on the same day and it read in part as follows:
   

"State Council determined to advise you that unless advice is received from you to the contrary within seven days of the date of this letter, your membership of the AMWU will be terminated and your employer advised accordingly."

1. The applicant did not respond to the Secretary's letter and on 1 March 1990 the Secretary wrote to him again, the letter reading as follows:
   

"With reference to my letter to you of February 22, 1990 relative to your dual membership with the QCEU and the AMWU, as I have not received advice from you as requested in my letter of 22 February your membership with the Amalgamated Metal Union is hereby terminated from today's date. Your employer will be advised accordingly."

1. Now, it is common ground that the rules say nothing about "termination" of membership. The evidence is that, being conscious of that, the State Council nevertheless decided to pass the resolution I have mentioned, because it was thought that the provisions for expulsion in the rules necessitated the use of procedures which the Council did not desire to use -- the making of charges and matters of that sort. On the face of it then, what was done was ultra vires, but Mr Matthews has argued for the respondents that the resolution should be treated as if it were one for expulsion. He contends in effect that if the applicant had been expelled that would have been lawful.
   The expulsion power relied on by Mr Matthews is in r.34 of the Union's rules, which reads in part as follows:
   

"Without prejudice to any other grounds of expulsion herein contained any member of the Union who refused to comply with these rules, the order or decision of any Committee, Council, or Conference having over such a member under these rules, or requested or taken from any employer at any place where or when a trade dispute exists between such employer and the Union, or obtained or attempted to obtain any of the benefits of the Union by means of misrepresentation, or have knowingly participated in or been a party to any fraud perpetrated upon the Union, or any misappropriation or misapplication of its funds who being an officer shall have refused to perform the duties imposed upon him by these rules or any of them, may be fined a sum not exceeding $100.00 suspended from office or expelled by his State Council or National Council. No member charged an offence under these rules shall be dealt with more than once for such offence. If expelled from the Union, he shall thereupon, subject to his right of appeal as rules provided, cease to be a member thereof. Every expelled member shall cease to have any claim on the funds and benefits of the Union and shall forfeit all right to participate in the privileges thereof."

1. It will be seen that the power to expel is not unlimited. In summary, it is confined to the following circumstances: firstly, non-compliance with the rules; secondly, non-compliance with an order or decision of a union body; thirdly, working when a trade dispute exists between the employer and the union; fourthly, fraud; and fifthly, an officer refusing to perform duties imposed on upon him.

2. Mr Matthews said that the termination would have been justifiable as an expulsion on the second and third grounds. He claimed there was a decision of the Council with which the applicant did not comply, communicated by the letter of 22 February 1990. That seems to me not to be so. As Mr G. Martin pointed out, that decision did not require the applicant to do anything, but simply informed him that, unless certain advice was received within seven days, his membership would be terminated. The other ground on which Mr Matthews relied as justifying the hypothetical expulsion was working when a trade dispute existed. That was a reference to actions alleged against the applicant, namely that having been advised of a stop-work meeting, he failed to attend.

3. As to that, Mr Martin argued for the applicant that, if the applicant did so, then that was a refusal or a failure to join in industrial action within the meaning of 6.335(1)(g) of the Industrial Relations Act and that it would have been unlawful to expel the applicant on that ground. Mr Martin's point seems to me to have substance, but it is unnecessary finally to determine that question, because in my opinion the State-Council did not act under r.34, either in form or in substance. Mr Matthews referred in this connection to remarks made by Williams J. in Australian Workers' Union v. Bowen (No. 2) (1948) 77 CLR 601 at 638 and he suggested that the law would permit action taken under one rule, which turned out to be unlawful, to be justified under another rule. My opinion is that the remarks of Williams J. do not support that proposition nor, with respect, bear upon it. The difficulty is that here the State Council acted, both on the face of the documents and on the uncontradicted evidence of Mr Vaughan, which I accept, under no rule at all. It is not a case of their having directed their minds to the matters under r.34 and determined that the grounds there mentioned, or some of them, were made out. They simply assumed, quite wrongly, that they could terminate the membership of a member if they thought the circumstances reasonably required it, irrespective of the rules.

4. Mr Martin also contended that the substantial reason for the purported determination was that the applicant was a member of a union other than the Amalgamated Metal Workers' Union. That, in my opinion, is so. The ground upon which, according to the evidence of Mr Vaughan, State Council acted was that they thought it inappropriate, in the circumstances, that the applicant should have the dual membership he claims. There is, of course, nothing in r.34 prohibiting dual membership and Mr Martin submits that 8.261 of the Industrial Relations Act, in the circumstances in which it applies, creates an absolute entitlement to membership, which is not qualified by restricting the right there given to a person who is not already a member of a union. Again, it seems to me unnecessary to discuss that contention, for the fact is that what the State Council purported to do was to terminate on the ground of dual membership, not to expel on any ground mentioned under r.34.

5. I note that s.261 (or, rather, its predecessor) was used by the Australian Industrial Court in the case of Lorimer v. The Australian Workers' Union, to which Mr Martin was good enough to refer me, reported in (1975) AILR p 3 para 804. In my opinion, the circumstances are such as to entitle the applicant to relief. Mr Matthews contended that, if the matter were treated as being an application under s.209 the Court should refuse relief on the grounds set out in s.209(3), namely failure to take all reasonable teps to have the matter the subject of the application resolved within the organisation. There is no similar provision in s.261 but I agree with Mr Matthews that relief under that latter provision is discretionary. Circumstances might be imagined in which, for example, a member had simply declined to use the ordinary procedures prescribed in applying for membership in the first place, and the Court might decline to act until those procedures had been exhausted. But I can see no discretionary ground for refusing this applicant relief, nor can I see any reasonable basis upon which, if I were to act under s.209, I should exercise my discretion against him under that provision. What is relied upon as the basis for an unfavourable exercise of a discretion is that r.33(3) allows an appeal against any decision or action by State Council. The appeal, however, seems to be of quite a limited kind. The rule says in part:
   

"In any such appeal only the written appeal submitted to the previous lower body and its decision thereon shall be considered."

1. Mr Matthews suggested that this did not prevent consideration of other material, and he referred me to the decision of the Full Court of the Supreme Court of Queensland in R. v. Gaffney; Ex parte Builders' Registration Board of Queensland (1987) 1 QdR 90, in particular at pp 90 and 92. In my opinion, that case does not suport the proposition for which Mr Matthews contends. One is a little surprised to see that the appeal is so limited, but I do not see why an applicant should be confined to the use of what is, on the face of it, a very constricted remedy. Further, even the use of that remedy is contested, for the National Secretary wrote to the applicant on 15 March 1990, referring to the applicant's desire to appeal and saying this:
   

"If you desire us to review that decision, then would request that you advise myself or the Queensland State Secretary that you are prepared to abide by the rules and decision-making processes of the Amalgamated Metal Workers' Union and to indicate that you are not a member of any other organisation or subject to the rules and decision processes of that organisation."

That is, the appeal will be processed only if the applicant agrees to discontinue the conduct which was the cause of the purported termination in the first place.

1. Apart from all that, even if an appeal were heard within the union organisation, it will not be looked at for three months, no offer having been made to advance that date, whereas this Court, I am pleased to be able to-say, has been able to deal with the matter expeditiously, the application having been commenced only on Tuesday. I should add that counsel's able assistance has contributed to that expeditious determination.

2. I have also, I should mention, considered the remarks made by the Privy Council, to which Mr Matthews referred me, in Calvin v. Carr 1980) AC 574, especially at 592. The proposition there advanced is, in substance, that if natural justice is denied at first instance in a voluntary association, the Court may stay its hand to see whether any appeal procedure works. However, at the page to which I refer, it is recognised that the circumstances may be quite different in trade union cases. Apart from all that, it does not seem to me that Calvin v. Carr touches this problem. There, the question was whether or not the procedures had been fair. Here, what was purported to be done was something which could not be done at all under the rules; Mr Matthews says in effect that I should disregard what the State Council said they were doing (and now still say they did), and treat them as having done something quite different, which appears to me an unorthodox course.

3. I should add that some reference was made during the course of the hearing to industrial disputes which are said to be related to the present case. I have not taken them into account. I do not say who is right or who is wrong about any of those industrial disputes. The function of this Court is purely to apply the law. The law is clear, in my view, that the applicant is entitled to a declaration that he is a member of the Amalgamated Metal-Workers' Union and such a declaration will be made. There will also be an order that the respondents treat him as such a member.