Porter v Dugmore

[1984] FCA 61

Re: J. G. PORTER & ORS.
And: J. DUGMORE (1984) 3 FCR 396
No. NSW 7 of 1983
Industrial - Conciliation and Arbitration
7 IR 120

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers(1), Keely(2) and Sheppard(3) JJ.

CATCHWORDS

Industrial - Conciliation and Arbitration Act - OK card policy - policy involving union approval before employment sought or taken by members - was the policy authorized by the rules of the registered organization either expressly or impliedly - construction of rules - implied terms - policy invalid unless supported by the rules.

Conciliation & Arbitration Act 1904 s.141

Conciliation and Arbitration - Union resolution adopting policy requiring members seeking work in a different section of the industry to obtain Union approval - O.K. Card System - Whether the policy expressly or impliedly authorised by the rules - Construction of rules - Considerations relevant in construing rules - Implied terms - Policy invalid unless supported by the rules. Conciliation and Arbitration Act 1904 (Cth), ss 140(1), 141, 143(1)K - Conciliation and Arbitration Regulations, reg. 115(1)(b).

HEADNOTE

The appellants appealed against a decision of the court requiring the Printing and Kindred Industries Union (the Union) inter alia, to perform and observe the rules of the Union by treating as null and void and of no effect a policy resolution of the New South Wales branch of the Union passed on 23 August 1977. The resolution instructed all members executives and officials in the New South Wales branch to maintain strict adherence to the continuing use and issue of the O.K. Card and affirmed as a policy generally that members who gained admission to the Union through one section of the industry were not entitled to work in any other section of the industry without having obtained permission from the Executive. This policy was known as the O.K. Card System. This resolution was passed following the Australian Industrial Court decision in Clarke v. Printing and Kindred Industries Union (1976) 30 FLR 39 in which it was declared that Branch rr. 7 and 10, which contained the formal provisions dealing with the O.K. Card System contravened the provisions of s. 140(1) of the Conciliation and Arbitration Act 1904. The appellants contended that notwithstanding the Australian Industrial Court decision there was nothing in the rules which expressly or impliedly prohibited the Union or its branches from having the policy in question. Although there was no rule which specifically authorised the organisation to have such a policy, the policy was a matter of management of the affairs of the Branch and as such was authorised by the rules conferring upon it powers of management as an autonomous Branch.

Held (per Smithers and Sheppard JJ., dismissing the appeal): (1) The rules did not authorise the adoption and implementation of the policy of the O.K. Card System.

(2) By virtue of reg. 115(1)(b) of the Conciliation and Arbitration Regulations it was a condition of registration that the Union was an association…