| INDUSTRIAL LAW - | direction that officials perform and |
| observe rules of reglstered organisatlon | - exclusion |
| from employment and unlon | of members who refuse to |
| make payment towards expenses | of delegates in |
| accordance with decision of workmates | - | deliberate |
| injury without justification - | breach of rules | - |
| orders granted. |
| Conciliation and Arbitration Act, | s.141 |
| ROLAND HAVEY VALL PEARSON | v. RICHARD ANEAR and others |
| LYNDA JOY PETERSEN | v. RICHARD ANEAR and others |
| LEE-ANN ELIZABETH SMITH | v. RICHARD ANEAR and others |
| Qld. | Nos Q8, 9 and 10 of 1981 |
| 15 OCTOBER 1982 |
FITZGERALD J.
BRISBANE
| IN THE FEDERAL COURT | OF AUSTRALIA) |
| QUEENSLAND DISTRICT REGISTRY | ) Nos. Q 8,9 and 10 of 1981 |
| INDUSTRIAL DIVISION | 1 |
BETWEEN:
ROLAND HARVEY VALL PEARSON
Applicant
AND :
RICHARD ANEAR and others
Respondents
BETWEEN :
LYNDA JOY PETERSEN
Applicant
AND :
RICHARD ANEAR and others
Respondents
BETWEEN :
LEE-ANN ELIZABETH SMITH
Applicant
AND :
RICHARD ANEAR and others
Respondents
| JUDGE | MAKING | ORDER: | FITZGERALD | J. |
| DATE OF ORDER: | 15 OCTOBER 1982 |
| BRISBANE | MADE: | WHERE
THE COURT ORDERS THAT: |
1. The respondents other than the respondent
| Richard Anear perform and observe | the | |
| Rules of the Australian Meat Industry |
| Employees' Union by ceasing | - | |
| (a) to refuse to work with the applicant |
| (b) | to inclte other members of the Australian Meat Industry Employees | |
| Union to refuse | to work with the |
| applicant |
| (c) | to obstruct the employment of |
| the applicant | at the Bremer River | |
Abattoir
and
| (d) | | to obstruct any payment by | the | |
applicant to the Australian Meat
Industry Employees' Union: |
2. the respondent Richard Anear perform and
| observe the Rules of | the Australian Meat | |
| Industry Employees' Union by ceasing to |
| support and encourage the other respondents | - | |
| (a) | to refuse to work with the applicant | |
| (b) to incite other members of | the Australian | |
Meat Industry Employees' Union to refuse to work with the applicant
| (c) | to obstruct the employment of the applicant at the Bremer River Abattoir |
and
| (d) |
| to obstruct any payment by the applicant Union. |
\
| IN THE FEDERAL COURT | OF AUSTRALIA ) |
| QUEENSLAND DISTRICT REGISTRY | ) | Nos Q8,9 and 10 of 1981 |
| INDUSTRIAL DIVISION | 1 |
BETWEEN:
ROLAND HARVEY VALL PEARSON
Applicant
AND :
RICHARD ANEAR and others
Respondents
BETWEEN:
LYNDA JOY PETERSEN
Applicant
AND :
RICHARD ANEAR and others
LEE-ANN ELIZABETH SMITH
Applicant
AND :
RICHARD ANEAR and others
Respondents
| FITZGERALD J. | 15 OCTOBER 1982 |
-
REASONS FOR JUDGMENT
This is the return of separate rules nisl
| obtained by the respectlve applicants, each | of whom |
| seeks an order pursuant to s.141 | of the Concillation |
and Arbltration Act 1904 directing the respondents to
| perform and observe the rules | of the Australian Meat |
Industry Employees Unlon (the “A.M.I.E.U.”), an
| organisation of employees registered pursuant | to that |
Act. The applications were heard together by agreement
| and it is common ground that | the result in each must be |
L .
| the same as | in the others. | The locus stand1 of the |
applicants was not in question and no sensible basis
was shown for a discretionary refusal of orders if a
case for relief under s.141 of the Act was otherwlse
made out: see the yet unreported judgments of the
| Full Federal Court | in Cook v. Crawford. | - |
| Prior to September | 1980, each of the applicants |
| . | was-a member of the | A.M.I.E.U. employed by T . A . | Field |
| Pty Ltd at the Bremer River Abattoir in | the suburb of |
Dlnmore near Ipswlch. Mr Pearson had first joined
| the A.M.I.E.U. | when he commenced work | at the abattoir |
in 1973, and from time to time had held minor
representatlve offices within that unlon. Miss Smith
| commenced work at the abattoir and joined the | A.M.I.E.U. |
| in 1975. | She was for some | 18 months during 1977 and 1978 |
| secretary of the A.M.I.E.U. | Shop Commlttee at the abattolr. |
Mrs Petersen's association with the abattoir and the
| union commenced in September | 1978, and it does not |
| appear that she held | or aspired to any posltion wlthln |
| the union. The flrst respondent | 1s the Secretary of the |
| Queensland Branch of the A.M.I.E.U.; | the other respondents |
| ("the Shop Commlttee") are the members of the | A.M.I.E.U. |
| Shop Committee at the abattolr. | NO point was made |
at the hearing that the first respondent has not
been involved in the dispute which has given rise
to these proceedings. He gave evidence and it is
obvious that he has encouraged, and continues to
| encourage, the Shop | Committee In the course being |
followd by them and, at thelr Instigation, by the members of the A.M.I.E.U. employed at the abattoir, other than the applicants.
.-
| On or about 15 August 1980, groups of | A.M.I.E.U. |
members employed in different sectlons of the abattolr the union working at the abattoir to meet the expense
held meetings to vote upon a recommendation of the
| of sending delegates from the abattoir to | a log of |
| claims conference between the | A.M.I.E.U. and employers. |
Some meetings voted in favour and some against the
| resolution, but a majority | of members overall were |
| in favour. Payment was due by Friday | 29 August 1980. |
| For various reasons, each of the applicants and a |
| number of other persons refused | to make the payment, |
| although all except the applicants later did | so. At |
the instigation of the Shop Committee, other members
of the A.M.I.E.U. employed at the abattoir decided
| early ln September | 1980 that they would not work with |
| those who refused to make the payment although it | 1s |
far from clear that any such decision was made by
| a true malority of the employees at | a properly |
convened meeting. The Shop Committee informed the
| employer that all other members of the | A.M.I.E.U. |
at the abattolr would walk out if any employee was
permitted to work without first making the payment.
Because of the considerable variation in the number
of employees required at the abattoir from tlme to
time, the relevant Award provides that those not required
may be stood down and that additlonal employees, when
| requlred, may be engaged | in order of senlorlty. Each |
of the applicants was stood down by the employer. since September 1980, although Mr Pearson has contlnued
| to conduct a part-tlme business as a valuer which he | - |
| operated even whilst employed | at the abattolr. Attempts |
by some at least of the applicants slnce September 1980
| to make payment | of their dues to the Shop Commlttee or |
its representatives at the abattoir have been rebuffed.
| While understandably aggrieved by what has occurred, |
the applicants experienced some difficulty in formulating
the relc3f they clalm. The applications are founded only
on s.141 of the Act which is relevantly concerned with
| orders | g | iv | ing | d | l | rec | t | ions | for | the | per | formance | or | observance |
| o f t h e r u l e s o f | a | r e g i s t e r e d o r g a n i s a t i o n | by | persons |
| who | are | under an ob l iga t lon to per form or observe those |
| r u l e s , i n t h e s e p r o c e e d i n g s t h e p e r s o n s | named | as |
| respondents . | The a p p l i c a t l o n by | M r Pearson, | whlch | w a s |
| t h e f l r s t | f i l ed , | i n l t i a l l y o m i t t e d | some | o f t h e r e l l e f |
| s o u g h t | I n | t h e | o t h e r | a p p l i c a t i o n s . | However, | towards |
| the | end | o | f | t he hea r ing , | t he t h ree app l l ca t lons | were |
| b r o u g h t i n t o l i n e , | some | o f t h e r e l l e f o r i g i n a l l y s o u g h t |
| was abandoned, | and there | was | some | expanslon on what | was |
| a s k e d . | I n | f i n a l | f o r m , | t h e | s p e c i f l c | d i r e c t l o n s | s o u g h t , |
| r e - a r r anged t o acco rd w i th t he o rde r | of | e v e n t s | were: |
| (i) | "that | the | respondents | should | perform | and |
| obse rve t he Ru les o f t he s a id | Unlon | by |
| t r e a t i n g | as | nu l l and vo id | - | a | dec l s ion o f |
| t h e m a j o r i t y o f t h e | members | o f t h e | Unlon |
| a t t h e B r e m e r | River Abat to i r | made | on | o r |
| about | the 15th day of | August , | 1 9 8 0 | whereby |
| a "levy" of ONE | DOLLAR | ($1.00) was | lmposed |
| upon | each | of | the | members | o f t h e | Union |
| employed | a t t h e s a i d A b a t t o l r " ; |
| (li) | "tha t | the | respondents | shouldaber | form and |
| o b s e r v e t h e r u l e s o f t h e | said | Unlon | by |
| t r e a t i n g as | nu l l and vo ld | a | d e c i s i o n |
| o f t he ma jo r i ty o f t he | members | o f t h e |
| Union | a t t h e Bremer | R ive r Aba t to i r | made |
| on | o r a b o u t t h e | 2nd | September | 1980 |
| whlch | s a i d d e c l s l o n o r r e s o l u t l o n | was |
| t o t h e e f f e c t t h a t t h e | members | o f t h e |
| s a i d Union | employed | a t t h e s a i d |
| A b a t t o i r | would | r e f u s e | t o work | w l t h t h e |
| said | a p p l i c a n t h e r e i n " ; |
| iiii) "tha t | the | respondents | should | per | form and |
| observe the Rule | o | r | those Rules (express |
o r imp l i ed ) wh ich r equ l r e t ha t t he
| members | o f t h e | sald Unlon or any | of | them |
| w l l l | n e l t h e r l n d l v i d u a l l y o r c o l l e c t i v e l y |
| i n j u r e o r p r e v e n t a n y f i n a n c i a l | member | of |
| t h e Union | from | ob ta in lng or cont inuing |
| (iv) | " tha t | t he r e sponden t s and each o f | them | do |
| recognise | t rea t | and accep t t he app l i can t |
| h e r e i n | as | st i l l | be ing | a | member | o f t h e s a l d |
| Unlon | and | e n t l t l e d t o a l l t h e b e n e f i t s | and |
| privileges | of | such | membershlp." |
| The | c a s e | was | fought on bo th s ldes on the foo t ing |
| t h a t | it | was | o f v i t a l s i g n i f i c a n c e w h e t h e r t h e d e c i s i o n |
| of | t h e members | o f t h e | A.M.I.E.U. | employed | a t t h e a b a t t o i r |
| i n August 1980 imposed | upon | each | member | i n h i s o r h e r |
capacity as a member a legal obligation to pay the
amount decided upon, a questlon seen to depend upon
| the construction | of the A.M.I.E.U.'s registered |
| rules, or alternatively, in the argument | of the |
respondents, those registered rules as expanded by
what was descrlbed as "custom and practice". Part
| of the relief sought | by the applicants depends, in |
| terms, upon a determination that the decislons | of |
| the.A.M.1.E.U. | members at the abattoir In August and |
September 1980, were "null and void". A conslderable part of the hearlng was spent on whether or not there
| was a "custom and practice" as contended for | by the |
respondents, with the respondents seeking to show that
| similar decislons | requirmg payments by the A.M.I.E.U. |
| members at the abattoir had been taken | in the past and |
that the appllcants had made the payments called for,
| and with Mr Pearson at least attempting | to disprove |
| both the existence | of such a "custom and practice" and |
| his involvement therein, | or alternatively to explain |
| what had occurred in | the past as due to his not having |
| possessed or at least not having read the | A.M.I.E.U. |
Rule book. The evidence was scanty and confused.
| However, there does seem to be basis | in the suggestlon |
| that lt is the policy | of the A.M.I.E.U., or at least |
its Queensland Branch, that each union "shop" should
| be represented at the expense | of its own members at |
conferences such as that which was proposed when the
| A.M.I .E.U. | members | a t t h e a b a t t o i r | were | c a l l e d upon |
| t o make | the payments which have given | r ise | t o t h e |
| present | d | i | spute | and | tha | t | , | conformably therewl th , |
| a | l | though perhaps | unaware | o | f | tha t | po l icy , | for | some |
| pe r iod | a t | least | p r i o r t o t h a t o c c a s i o n , e a c h | member |
| of | t h e | A.M. I .E .U . | a t | t h e a b a t t o i r , i n c l u d i n g t h e |
| appl icants , | had cont r ibu ted | towards | such | expenses |
| a | sum | a r r i v e d a t by | major i ty | dec ls ion . | The | process |
| followed | a t | t h e a b a t t o i r i n r e s p e c t o f s u c h | matters |
-
| was | s imple and i n fo rma l and d ld no t s a t i s fy t he |
| r equ i r emen t s o f | t he | A c t and | Regulations | (see, e.g. |
| s s . 133A and 158 and Reg. | 115) and | the | A.M.I .E.U. |
| Ru les | w l th | r e spec t | t o union | funds. | The money |
| c o l l e c t e d was | n o t t r e a t e d | as belonging | t o t h e |
| A.M.I .E.U. | but | merely held and | admmistered | as | a |
| l o c a l | f u n d | f o r | l o c a l | p u r p o s e s . | It | w a s | k e p t | l n | a |
-
| t i n and | e i t h e r t a k e n | home | by | t h e | Shop | Committee |
T r e a s u r e r o r l e f t i n t h e e m p l o y e r ' s s a f e , w l t h t h e
| only account ing being | a | sc rap o f pape r on t he no t i ce |
| b o a r d w i t h t h e t o t a l f l g u r e c o l l e c t e d w r i t t e n | on | it. |
| To | s a y t h e l e a s t , | I | have | grave | doubts | whether |
| t h e r e g i s t e r e d R u l e s o f t h e | A.M.I .E .U. | a u t h o r i z e , | or | t h e |
| A | c | t | and Regu la t ions pe rmi t , t he p rac t l ces appa ren t ly |
| a d o p t e d I n r e l a t i o n t o t h e c o l l e c t l o n s | made, | o r t h a t |
| e i t h e r | a | course o f | such conduct , | o r | acquiescence | in | it |
| by | a l l o r | any of | the appl | icants | , | could support | what |
| was | done: | see Maqner v. | Fowler | ( 1 9 7 9 ) | 2 6 | A.L.R. | 6 7 1 | p e r |
Keely J. at p.694 citmg the Australlan Industrial
| Court in Demas | v. Pearson (1951) 73 C.A.R. | 3 , which was |
| later followed by that Court in Elliott | v. Duffy (1955) |
| 81 C.A.R. | 69. | Indeed, I suspect that I am not alone |
in my doubts. It is plain that minutes and other
documents were Interfered with after the present
| dlspute arose by | the obliteration of the word "levy", |
a word given some slgnificance under the reglstered
Rules, and the insertion in lieu thereof of the word
| "collection". Nelther the A.M.I.E.U. | nor Its members |
generally, nor its members employed at the abattolr,
| both no doubt groups | of fluctuating compositlon, is a |
party to the proceedlngs, and, except to the
limited extent involved in sub-s. 141(8A) of the
| Act, cannot be bound by the outcome: McLeish | v. Faure |
| 25 A.L.R. | 403, 414. Nonetheless, It may be unavoldable |
that these proceedings may have at least a practical
| effect beyond the lmmedlate parties. What | 1 s directly |
| in issue IS the conduct | of respondents, measured against |
| the R u l e s of the A.M.I.E.U., | when viewed In the context |
| the refusal of the applicants to make the payment from |
| which the conduct | of the respondents flowed. Accordingly, |
| I consider that, if any direction | 1s glven, it should so |
| far as possible not involve a determination | of any issue |
beyond what is necessary for the purpose of ensuring
| that the respondents perform and observe the | A.M.I.E.U. |
| Rules. |
The appllcants' refusal to make the payment
may have been not only legally justifiable but
perfectly fair and reasonable and conslstent wlth
| the spirit | as well as the letter | of them obligations |
| a s A.M.I.E.U. | members employed at the abattoir. Or |
it may not. The posslbility may be acknowledged that
| it was inconsistent with | A.M.I.E.U. | policy, or even |
| lnvolved a breach | of the A.M.I.E.U. | Rules. On any n e w |
of the matter, in my opinlon, the penalty which has been
imposed on the applicants was and is a wholly disproportlonate
response to any transgression by them. I am qulte unmoved
by the respondents' attempt to justify what was done by
describing It as democratlc. Hlstory is littered with
majorlty decisions to oppress dissentient minoritles.
The need for paramount controls over even Parliament
| is reflected in this country by | ou; written Constltutlon |
even though there is, as yet, no local Bill of Rlghts. Similarly, the Conciliation and Arbitratlon Act pxovldes
| clear statutory control over what | R u l e s may be made by |
the members of registered organlsatlons who may not, by
ma~orlty,
| question, therefore, is not whether a sufficlent number | adopt rules which are oppressive or unjust. The |
| approved what was done, but whether | It was legltimate. The |
Act contams ample provislons for the resolution of
disputes such as arose when the applicants refused to make
| payment: | see, e.g. sub-s. 109(1) (a), s s . 144, 148 and 149 |
| and Part IXA. The A.M.I.E.U. | Rules contain dlsclpllnary |
provisions such as Rules 9 and 42 , especially perhaps
paragraphs (a) and (p) of Rule 9, which provide:
9 . POWER TO IMPOSE FINES
| The Federal Council | and/or | each | Branch |
| Committee of | Management | o r Branch Executlve |
or Sub-Branch Committee of Management s h a l l
have t he power , i n add l t lon t o and w i thou t
| l i m i t i n g t h e e f f e c t o f a n y | power | o therwise |
| by t hese ru l e s c r ea t ed , | t o lmpose | a | f l n e n o t |
| exceeding | one | hundred | dol lars | ($100) f o r |
| each offence on any | member | o f t h e | Union | who:- |
| (a) | Vio la tes | any | Rule | o | f | the | Union | , |
| inc luding any Rule o r | By-Law |
| lawful ly passed | by any Branch |
| o f t h e | Union. |
...
| (p) | F a i l s | t o | c a r r y | o u t | a | unanimous |
| o r m a j o r i t y d e c i s i o n | made | i n |
-
| conformi | ty | wl | th | the | ru | les | and/or |
| any po l icy o f the | Union | and | I n |
| accordance with custom and pract | ice |
| of | ]ob | and departmental | meetlngs." |
| These | s teps | were not | t aken . | There | a re | no | Rules | which |
p u r p o r t t o p e r m i t t h e p u n i s h m e n t o f t h e a p p l i c a n t s
| I n t h e | manner wh ich has occu r red fo r t he i r r e fusa l t o |
| make | t h e payment. | I f | t h e r e | was | such a R u l e , | p a r t l c u l a r l y |
| s i n c e | it | i s | p l a i n t h a t e a c h a p p l i c a n t ' s r e f u s a l | was | based |
| on | a | g e n u l n e b e l i e f t h a t h e | or | s h e v a s a c t i n g w l t h l n h i s |
| o r h e r r i g h t s , a n d | it | seems | t h a t what | was | done Ignored |
| t h e l e g a l l t y | o r | o t h e r w i s e o f t h e i r r e f u s a l , | I | t h i n k | it |