Pearson, Roland Harvey v Anear, Richard

[1982] FCA 121

Re: ROLAND HARVEY VALL PEARSON; LYNDA JOY PETERSEN; LEE-ANN ELIZABETH SMITH
And: RICHARD ANEAR AND OTHERS
Qld Nos. 8, 9 and 10 of 1981
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.

CATCHWORDS

INDUSTRIAL LAW - direction that officials perform and observe rules of registered organisation - exclusion from employment and union 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

HEARING

BRISBANE

#DATE 15:10:1982

ORDER

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 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 to the Australian Meat Industry Employees' Union;

1. 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 to the Australian Meat Industry Employees' Union.

JUDGE1

This is the return of separate rules nisi obtained by the respective applicants, each of whom seeks an order pursuant to s.141 of the Conciliation and Arbitration Act 1904 directing the respondents to perform and observe the rules of the Australian Meat Industry Employees Union (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 the same as in the others. The locus standi 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 otherwise 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 Dinmore near Ipswich. 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 representative offices within that union. 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 Committee at the abattoir. 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 position within the union. The first respondent is the Secretary of the Queensland Branch of the A.M.I.E.U.; the other respondents ("the Shop Committee") are the members of the A.M.I.E.U. Shop Committee at the abattoir. 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 followed by them and, at their 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 sections of the abattoir held meetings to vote upon a recommendation of the Shop Committee that $1.00 be paid by each member of the union working at the abattoir to meet the expense 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 in September 1980 that they would not work with those who refused to make the payment although it is far from clear that any such decision was made by a true majority 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 abattoir 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 time to time, the relevant Award provides that those not required may be stood down and that additional employees, when required, may be engaged in order of seniority. Each of the applicants was stood down by the employer. None of the applicants has had any employment whatever since September 1980, although Mr Pearson has continued to conduct a part-time business as a valuer which he operated even whilst employed at the abattoir. Attempts by some at least of the applicants since September 1980 to make payment of their dues to the Shop Committee or its representatives at the abattoir have been rebuffed.

While understandably aggrieved by what has occured, the applicants experienced some difficulty in formulating the relief they claim. The applications are founded only on s.141 of the Act which is relevantly concerned with orders giving directions for the performance or observance of the rules of a registered organisation by persons who are under an obligation to perform or observe those rules, in these proceedings the persons named as respondents. The application by Mr Pearson, which was the first filed, initially omitted some of the relief sought in the other applications. However, towards the end of the hearing, the three applications were brought into line, some of the relief originally sought was abandoned, and there was some expansion on what was asked. In final form, the specific directions sought, re-arranged to accord with the order of events were:
(i) "that the respondents should perform and observe the Rules of the said Union by treating as null and void a decision of the majority of the members of the Union at the Bremer River Abattoir made on or about the 15th day of August, 1980 whereby a "levy" of ONE DOLLAR ($1.00) was imposed upon each of the members of the Union employed at the said Abattoir";
(ii) "that the respondents should perform and observe the rules of the said Union by treating as null and void a decision of the majority of the members of the Union at the Bremer River Abattoir made on or about the 2nd September 1980 which said decision or resolution was to the effect that the members of the said Union employed at the said Abattoir would refuse to work with the said applicant herein";
(iii) "that the respondents should perform and observe the Rule or those Rules (express or implied) which require that the members of the said Union or any of them will neither individually or collectively injure or prevent any financial member of the Union from obtaining or continuing in employment"; and
(iv) "that the respondents and each of them do recognise treat and accept the applicant herein as still being a member of the said Union and entitled to all the benefits and privileges of such membership."

The case was fought on both sides on the footing that it was of vital significance whether the decision of the members of the A.M.I.E.U. employed at the abattoir in August 1980 imposed upon each member in his or her capacity as a member a legal obligation to pay the amount decided upon, a question 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 described as "custom and practice". Part of the relief sought by the applicants depends, in terms, upon a determination that the decisions of the A.M.I.E.U. members at the abattoir in August and September 1980, were "null and void". A considerable part of the hearing 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 decisions requiring payments by the A.M.I.E.U. members at the abattoir had been taken in the past and that the applicants 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 suggestion that it 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 at the abattoir were called upon to make the payments which have given rise to the present dispute and that, conformably therewith, although perhaps unaware of that policy, for some period at least prior to that occasion, each member of the A.M.I.E.U. at the abattoir, including the applicants, had contributed towards such expenses a sum arrived at by majority decision. The process followed at the abattoir in respect of such matters was simple and informal and did not satisfy the requirements of the Act and Regulations (see, e.g. ss. 133A and 158 and Reg. 115) and the A.M.I.E.U. Rules with respect to union funds. The money collected was not treated as belonging to the A.M.I.E.U. but merely held and administered as a local fund for local purposes. It was kept in a tin and either taken home by the Shop Committee Treasurer or left in the employer's safe, with the only accounting being a scrap of paper on the notice board with the total figure collected written on it.

To say the least, I have grave doubts whether the registered Rules of the A.M.I.E.U. authorize, or the Act and Regulations permit, the practices apparently adopted in relation to the collections made, or that either a course of such conduct, or acquiescence in it by all or any of the applicants, could support what was done: see Magner v. Fowler (1979) 26 A.L.R. 671 per Keely J. at p.694 citing the Australian 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 dispute arose by the obliteration of the word "levy", a word given some significance under the registered Rules, and the insertion in lieu thereof of the word "collection". Neither the A.M.I.E.U. nor its members generally, nor its members employed at the abattoir, both no doubt groups of fluctuating composition, is a party to the proceedings, 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 unavoidable that these proceedings may have at least a practical effect beyond the immediate parties. What is directly in issue is the conduct of respondents, measured against the Rules 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 is given, 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 applicants' refusal to make the payment may have been not only legally justifiable but perfectly fair and reasonable and consistent with the spirit as well as the letter of their obligations as A.M.I.E.U. members employed at the abattoir. Or it may not. The possibility may be acknowledged that it was inconsistent with A.M.I.E.U. policy, or even involved a breach of the A.M.I.E.U. Rules. On any view of the matter, in my opinion, the penalty which has been imposed on the applicants was and is a wholly disproportionate response to any transgression by them. I am quite unmoved by the respondents' attempt to justify what was done by describing it as democratic. History is littered with majority decisions to oppress dissentient minorities. The need for paramount controls over even Parliament is reflected in this country by our written Constitution even though there is, as yet, no local Bill of Rights. Similarly, the Conciliation and Arbitration Act provides clear statutory control over what Rules may be made by the members of registered organisations who may not, by majority, adopt rules which are oppressive or unjust. The question, therefore, is not whether a sufficient number approved what was done, but whether it was legitimate. The Act contains ample provisions for the resolution of disputes such as arose when the applicants refused to make payment; see, e.g. sub-s. 109(1)(d), ss. 144, 148 and 149 and Part IXA. The A.M.I.E.U. Rules contain disciplinary 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 or Branch Executive or Sub-Branch Committee of Management shall have the power, in addition to and without limiting the effect of any power otherwise by these rules created, to impose a fine not exceeding one hundred dollars ($100) for each offence on any member of the Union who:-
(a) Violates any Rule of the Union, including any Rule or By-Law lawfully passed by any Branch of the Union.
. . .
(p) Fails to carry out a unanimous or majority decision made in conformity with the rules and/or any policy of the Union and in accordance with custom and practice of job and departmental meetings."

These steps were not taken. There are no Rules which purport to permit the punishment of the applicants in the manner which has occured for their refusal to make the payment. If there was such a Rule, particularly since it is plain that each applicant's refusal was based on a genuine belief that he or she was acting within his or her rights, and it seems that what was done ignored the legality or otherwise of their refusal, I think it likely that that Rule would contravene s.140 of the Act.

Section 141 of the Act and its predecessors have been given a wide operation by the High Court and this Court; see, e.g. Magner v. Fowler and Cook v. Crawford, supra, in each of which reference is made to a number of earlier authorities.

There is no present occasion to consider the ambit of what may legitimately be implied into the registered rules of an organisation registered under the Act, the basis upon which such implications are made, or limitations, statutory or otherwise, upon what may be implied. Deliberate injury, without sufficient cause, to a fellow member of a union in connection with his employment and obstruction to his attempts to maintain his membership are fundamentally and radically incompatible with the nature and purpose of unionism and antithetical to the legislative intent manifest in provisions such as ss. 2, 5 and 188 of the Act. More specific support for the implication into the Rules of the A.M.I.E.U. of a prohibition against conduct such as the respondents have indulged in, is provided by clause 2, which contains a statement of the A.M.I.E.U.'s objects, and Rule 37, "Injury to Member", which so far as is now material provides:

" 37. INJURY TO MEMBER
(1) Any member or members who, individually or collectively, injury or prevent any financial member from obtaining employment shall be liable to be fined by the Federal Council or the Committee of Management or Branch Executive of a Branch for each and every such offence a sum not exceeding fifty dollars ($50)."

Compare Roots v. Mutton (1978) 32 F.L.R. 15, 18. Accordingly, notwithstanding that there is no provision in the Rules, except perhaps Rule 37, which expressly forbids the conduct which has been engaged in by the respondents, and that there is some room for debate as to the literal application of Rule 37, I am firmly of opinion that the applicants' refusal to make the subject payment did not afford sufficient cause for the actions taken by the respondents and that the applicants are entitled to an appropriately framed order under s.141 of the Act.

The order of the Court in each application is 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 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 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
(d) to obstruct any payment by the applicant to the Australian Meat Industry Employees' Union.