Prichard, Michael Anthony v Krantz, Harry David

[1983] FCA 237

Re: MICHAEL ANTHONY PRICHARD
And: HARRY DAVID KRANTZ and LESLIE RICHARD HASELDINE
SA No. 9 of 1982
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial law - registered organization - eligibility rule - "engaged in any clerical capacity" - meaning of - whether applicant so employed - whether member of an organization entitled to remain a member if outside eligibility rule - discretion under s.141 Conciliation and Arbitration Act 1904.

Conciliation and Arbitration Act 1904 ss.141 and 144

HEARING

ADELAIDE

#DATE 29:7:1983

ORDER

The Court orders that the Order Nisi herein be discharged.

JUDGE1

This is an application brought under s.141 of the Conciliation and Arbitration Act 1904 (the Act) by Michael Anthony Prichard (who claims to be a member of the Federated Clerk's Union of Australia (the organization), an organization registered under the Act, through its South Australian Branch (the Branch)) against Harry David Krantz and Leslie Richard Haseldine who respectively are the Secretary and Assistant Secretary of the Branch. The applicant seeks orders directing the respondents to observe and perform the rules of the organization and its Branch by accepting monies tendered by the applicant in respect of union dues and recognising that the applicant is, and treating the applicant as, a member of the organization.

The matter is a further episode in the saga concerning the applicant and the Branch and its officials which has seen at least six further separate applications commenced by the applicant in this Court since 1981 following his dismissal as a Branch organizer in September 1980. (see matters Nos. S.A. 1, 3, 4 and 17 of 1981 (applications under s.140 and s.141 of the Act); S.A. No.15 of 1981 (a Part IX application seeking an inquiry into the election of certain officials of the Branch held in 1981) and No.S.A. 1 of 1983 (a further application under s.141 of the Act which raises for determination (inter alia) the question of ownership of valuable real estate in the city of Adelaide which is shown to be owned by the Federated Clerks Union of Australia, South Australian Branch)). The applicant herein is a co-applicant in all those matters.

The applicant who had been an unsuccessful candidate in both the election which was the subject of the challenge in matter No. S.A. 15 of 1981 and a further election held in February 1982 (which later election has not been and at this stage cannot be the subject of a challenge under Part IX of the Act) had apparently intended to be a candidate in any new election the Court might order pursuant to s.165 of the Act in matter No.S.A. 15 of 1981. In any event under certified Branch r.30 nominations for offices of the Branch other than those of Secretary and Assistant Secretary were due to be called in August 1983. Branch r.31(f) provides that only financial members who had been members for at least 12 months shall be eligible for election to any position or office whilst Branch r.31(d) provides that the books of the union shall be deemed to have closed on the last day of the month which precedes the calling of nominations by two calendar months and that every member shown in the records as financial on and by such date shall be deemed financial. The effect of these rules was such that the applicant believed it was necessary that he be financial as at 31 May 1983 in order to nominate for any of such offices in the August 1983 election.

By Branch r.24(e), the Secretary (and the Assistant Secretary subject to the supervision of the Secretary) and in the absence of the Secretary, the Assistant Secretary (r.25(b)) shall personally or by deputy collect union dues, fines or levies from members.

Shortly after 26 May 1982 the applicant received a letter dated that day from the Secretary of the Branch which reads:

"Mr M. Prichard,
46 Birman Cres.,
FLAGSTAFF HILL. S.A. 5159

Dear Sir,

This letter relates to your claim that you are and have been a member of the Federated Clerks Union of Australia, South Australian Branch. You have asserted that you have such membership in various proceedings which you have taken, both before the Supreme Court of South Australia and the Federal Court of Australia.
In matter No.15 of 1981 before the Federal Court of Australia, it is claimed in the particulars of alleged irregularities paragraph 1. that you are a member of the said Union and in the answer filed on behalf of the Federated Clerks' Union of Australia South Australian Branch "it is denied that you are or were at any material time a member of the organisation".
Taking of evidence in the said matter (No.15 of 1981) has now concluded before Mr Justice Evatt and there are certain final steps to be taken before the matter stands for decision.
The Branch and members of its Branch Council and Executive viewing these matters being pending before His Honour Mr Justice Evatt and having reached the stage adverted to above, believe that any dealings you may require to have with them, should properly be deferred until the Court's view is known on the cases which you have instituted.
The Branch Executive has decided that members of the staff should not be required to deal with a person whose membership is subject to the scrutiny of the Federal Court in matters which were instituted by that person and they have been instructed pending the decision of the Court that they shall not accept any payments from you which purport to be in connection with your membership of the Union.
The Branch Executive has also determined that such other recourse as it has pursuant to the Branch and Federal Rules, will not be considered until the decision of the Court. At that time consideration will be given to the refund to you of all monies which you have paid to the Union, except that if you so desire, upon written application to the Branch Secretary for such monies which total $228.10, a cheque for such sum would now be sent to you.
I return herewith cheque for $1.00 (sic) (of which I have taken a photocopy) which was received by me on 30th April, 1982.
The Branch Council has endorsed the above referred to decision.

Yours faithfully,

H.D. Krantz,
SECRETARY"

The order nisi herein was granted by the Court (Fisher J.) on 26 October 1982 and made returnable for directions on 11 November 1982 (Woodward J.).

On that date an undertaking was given by counsel on behalf of the Secretary, the Assistant Secretary and the Branch that no point would be taken about "any hiatus in the applicant's financial membership" if the Court as presently constituted found, in matter No.S.A. 15 of 1981, that the applicant was entitled to be a member of the organization.

The matter was first mentioned before the Court as presently constituted on 27 May 1983 when the applicant sought interlocutory orders directing the respondents to accept union dues from the applicant. After hearing submissions from Counsel the two respondents undertook that they would receive outstanding fees from the applicant which were owing to the Branch on or before 31 May without prejudice to their rights to claim that Mr Prichard was not or had not been entitled to be a member during the period to which those fees related. The transcript of the proceedings that day then shows Mr Mansfield (who appeared for the applicant) as saying "that undertaking having been proffered, we accept that undertaking". The matter was then stood-over pending determination of matter No.S.A. 15 of 1981 with liberty to all parties to apply.

The locus standi of the applicant had been raised in the other matters before the Court. Those matters, other than the Part IX inquiry, stand part-heard after many hearing days before the Court as presently constituted.

The Part IX inquiry has been determined, reasons for judgment having been handed down on 28 June 1983. Formal orders, including an order that a new election be held in February 1984, were made on 29 July 1983 after hearing submissions from counsel for the applicant and others to whom leave to appear had earlier been given.

Included in the reasons for judgment in that inquiry are the following passages:

At p.11:
"In addition it is noted that the Court as presently constituted has heard considerable evidence in some four other proceedings concerning the Branch of the organization which were commenced between 13 February 1981 and 21 October 1981 pursuant to s.140 and/or s.141 of the Federal Act. The applicants in those proceedings are in the main the same applicants as in the present inquiry. Those proceedings involve (inter alia) challenges to the rules of the Branch of the organization under s.140 of the Federal Act particularly the rules providing for the term of office for the Branch Secretary and the Branch Assistant Secretary, the rule providing for the election of members of the Branch Council other than the officers of the Branch and the rules providing for the appointment of a Returning Officer. The main thrust of those challenges apart from the term of office of the Branch Secretary and the Branch Assistant Secretary was first, that the Branch Council as at December 1980 January 1981 was improperly constituted so that the appointment by the Branch Council of the Returning Officer who conducted the subject election was invalid and secondly, that the Branch Council which had adopted amendments to relevant rules during the years up to 1981 had been invalidly constituted with the result that such amendments were invalid. These four proceedings remain part-heard. In addition two further orders-nisi have recently been granted pursuant to s.141 of the Federal Act to some of the applicants in the present inquiry wherein further serious challenges to the functioning of the Branch and its property are raised. Evidence in these two matters has yet to be commenced.
The above does not purport to be a detailed summary of the voluminous evidence given in this inquiry and in the other proceedings but is simply an introduction so to speak to particular matters which are dealt with in some detail hereafter."

At p.13:

"The Court is aware of the problems following the decision of the Commonwealth Industrial Court in Moore -v- Doyle & Ors. (1969) 15 F.L.R. 59 which have confronted numerous organizations registered under the Federal Act with branches in New South Wales and/or South Australia which are registered under the respective State Acts. The acts of branch officials of such branches may be and often have been exposed to challenges under ss.140 and 141 of the Federal Act by any member who is reasonably conversant with the principles laid down in that case and who is aware of the numerous administrative problems within such branches that may have arisen as a result of that decision. Irrespective of the motives of such a member, he can bring about a state of affairs where the officials of such a branch are confronted with proceedings in the Court. Such proceedings of necessity may require thorough and lengthy research being first made, followed by lengthy and often complex evidence being presented to the Court, the consequences of which may be to effectively bleed the branch of its finances and also, because of the time-consuming efforts of the officials of the branch, to either materially weaken the branch or effectively destroy it.
In this regard certain of the parties to this inquiry and certain respondents in the other proceedings being representatives of the Branch have challenged the standing of the third named applicant, Mr Prichard. An issue has been raised as to whether he was and still is entitled to be a member of the organization so as to have locus standi in the various proceedings. Serious questions as to his credibility have been raised. The Court is aware that for some years up until 1980 Mr Prichard had been employed as a full-time Branch organiser and that in September 1980 he had been dismissed from that position. It is clear that he is the dominant applicant of the group of applicants in the proceedings. Of the applicants he alone has taken an active interest in the proceedings, attending Court on all hearing days and is obviously the person giving instructions to the applicants' legal representatives. The Court as presently constituted is aware that he, as a member of the South Australian Branch of the Shop Assistants Union, was active in a prolonged faction fight involving the Victorian Branch of the Shop, Distributive and Allied Employees' Association of Australia during 1976-7. (cf. Leveridge & Ors. -v-Shop Distributive and Allied Employees' Association (1977) 31 F.L.R. 385).
In the present inquiry evidence has been led regarding certain conduct alleged to have been carried out by Mr Prichard which on one view might support an allegation of an offence under the Federal Act having been committed by him. The Court has been asked to make certain findings in this regard. The Court has also been asked to express its view in regard to the credit of Mr Prichard. In view of the findings and orders that the Court proposes to make in this inquiry and the fact that the other proceedings referred to above are still part heard the Court feels that no finding or observations in regard to these questions should be made at this stage but has agreed to make a determination as to his eligibility for membership of the organization as at the time of nominating as a candidate in the subject election. Such determination is set out later herein."

Then at p.46:

"Eligibility of Mr Prichard to be a member of the organization

The officials of the Branch of the organization have challenged Mr Prichard's right to membership of the organization during the subject election and at the time when he made his application for the subject inquiry in July 1981 or when such inquiry was deemed to have been instituted in the Court, namely 14 September 1981 (s.161).
As stated earlier herein Mr Prichard had for some time been a member of the shop assistants union the S.D.A) in South Australia before becoming a full time Branch organizer in 1978. Shortly thereafter he signed an application to join the organization. The evidence shows that it had been the practice for many years for Branch organisers to become members of the Federal organization. Since joining the organization Mr Prichard had paid his subscriptions to the Branch during the relevant periods and such payments had been accepted by the Branch. In September 1980 he was dismissed from his position as Branch organizer. It is clear that during this period he was engaged in a clerical capacity within the meaning of that expression in r.2 of the Federal rules and accordingly was entitled to membership of the organization. The evidence shows that since his dismissal he has sought work in various positions of a clerical nature and has not been employed other than in a clerical capacity. Since his dismissal and up to November 1981 he had accepted casual work of a clerical nature, such as rental clerk employed by the hirer of mechanical goods; performing general work in a solicitor's office, involving photocopying, writing reports and taking statements; and the collating of records for computer recording in a doctor's surgery.
The Court has recently discussed the meaning of "engaged in a clerical capacity" as used in r.2 of the Federal rules in Gerda Voigtsberger -v- Shire of Pine Rivers, (1980) 49 F.L.R. 391 @ 398. In my view the principles therein referred to still apply.
On the evidence I am satisfied that Mr Prichard was entitled to become a member of the organization during his employment with the Branch and to have remained a member thereof since his dismissal up until at least the time when he gave his evidence before the Court in November 1981. The Court is aware that in late 1982 the Branch Officials refused to accept moneys tendered by him for subscriptions allegedly on the ground that he was not then entitled to be a member of the organization. Mr Prichard has issued proceedings pursuant to s.141 of the Federal Act seeking orders in this regard. The matter has been mentioned before the Court and certain undertakings given by certain officials of the Branch in this regard . . . . . "

The present matter came on for hearing on 7 July 1983 and 29 July 1983. Mr Prichard gave evidence as to his duties as an employee of Richard Stevens Hire Pty Limited (Stevens Hire) since October 1981. Mr Richard Stevens the Managing Director of the said company was called to give evidence by the respondents in this regard.

In November 1981 when Mr Prichard gave evidence in matter No.S.A. 15 of 1981 concerning his employment after September 1980 following his dismissal as a Branch organizer, he stated that he had been employed in the three jobs referred to in the above reasons for judgment. It is clear from the evidence given in the present matter that he had commenced his employment with Stevens Hire only a few weeks before he gave his evidence in November 1981. Further I accept that the fact that he had commenced to work for Stevens Hire was not known to counsel who represents the respondents herein until Mr Prichard gave his evidence in November 1981. At that time he gave evidence concerning his duties at Stevens Hire which the Court (and apparently counsel for the respondents) then had no cause to doubt. But the evidence given in the present matter by both the applicant and by Mr Stevens (which is more fully understood by the Court as a result of an inspection of that employer's premises at Darlington) shows that the applicant had been less than frank with the Court when giving evidence in November 1981 in respect of his duties with that employer. Where there is any conflict between the evidence of the applicant in both S.A. No.15 of 1981 and the present matter and that of Mr Stevens in the present matter, the Court prefers the evidence of Mr Stevens and the other witness called on behalf of the respondents. The Court, having had the advantage of observing Mr Prichard whilst giving his evidence in the present matter and in particular his demeanour in cross-examination, is of the view that it would not be safe to accept and act upon his evidence in any respect in the present proceedings.

The Court makes the following findings of fact:
1. The applicant applied for a job at Stevens Hire in October 1981 pursuant to an advertisement in the Adelaide press. Relevant parts of such advertisement were in the following or similar form:
"RICHARD STEVENS HIRE

Our 7 day a week service, means we need more staff at all our branches.
All positions require work at week-ends.
Darlington Branch
. . . . .

Hire Office Assistant. Sat. and Sun. only. Aged 25 to 50 years, with mechanical experience and friendly outgoing disposition.
. . . . .
Application should be in writing only, giving age, experience and other details that the applicant thinks is relevant.
Applications should be addressed to:

The Manager
Richard Stevens Hire Pty. Ltd.,
2 Seacombe Rd., Darlington. 5047" (emphasis added).

2. The applicant secured employment with that Company as a Hire Office Assistant working Saturday, Sunday and Public Holidays, the hours of work being 7.30a.m. - 5.00p.m. commencing October 1981.
3. The applicant was initially paid at $6.00 per hour which rate was increased to $6.50 per hour sometime in 1982. These hourly rates were below the rates provided for casual employees under the Clerks (S.A.) Award 1973 as varied. Employees working as Hire Office Assistants were not paid under any particular award.

4. Stevens Hire carried on a business of hiring out equipment for building work by both the professional and the handyman. The company had its Head Office at Darlington and had branches within the city of Adelaide, at Norwood and Blair Athol.

5. At Darlington the company consisted of three departments, the hiring section which worked basically along the same lines as the other three branches, the administrative section which processed all accounts and transactions for the four branches and thirdly the central work shop where technical maintenance of all machines and equipment was carried out by motor mechanics who were employed only from Monday to Friday of each week.

6. During the weekends there were usually three casual employees employed on the Saturday and two on the Sunday. The administrative section where the accountant, a typist/secretary and a computer operator worked and the central workshop were closed during the week-ends.

7. During the weekend employees in the hiring section worked at a counter. A member of the public on entering the premises would make inquiries as to the hiring of certain equipment such as power saws, drills, post hole diggers, chain saws, trailers, concrete mixers and trucks. Employees including the applicant would take the hirer to where the various equipment was stored in either what was called the annex to that area or outside into the open yard where certain equipment was kept. On the selection of the equipment after discussion with the employee including advice as to the type of equipment needed for the job in hand, the employee would test the equipment, would ensure that machinery which needed fuel had such fuel, would fit chains to chain saws if necessary before testing, would assist customers in the loading of equipment into their vehicles or into trailers which were hired and would assist in the attaching of trailers to tow-bars and various other duties concerning the supplying, checking and loading of such equipment. From time to time sales of abrasive discs and circular saw blades were made by the week-end employees.

8. When the particular equipment had been selected and tested the employee was required to make a record of the particular equipment which carried a company number, the cost of hiring, the amount of deposit and the like. These particulars were set out on a printed carbonised form printed by the company. The employee had to calculate the amount due in each case and had to take either money, bankcard or cheque or in the case of regular customers make a note of charges on that customer's card. Copies of the form were placed in a drawer to be endorsed when the equipment was returned.

9. If equipment was returned during the weekend those employees would check all equipment so returned by running motors and making a general inspection for damage and thereafter marking off the return of equipment against the copies of the form which had been kept under the procedure set out above.

10. On its return the employee was required to clean certain equipment where necessary by means of high pressure hoses.

11. In addition the weekend employees, if time was available, were expected to keep the areas in the hiring section, the annex, the driveway to the hiring section and the yard clean. This involved sweeping and hosing.

I am satisfied that on the evidence the primary function of the Darlington weekend employees including the applicant was to advise customers as to the best type of equipment required for a particular job, to test the equipment, to demonstrate its use and to generally assist the customer in loading the equipment into vehicles. The filling in of the information on the hiring form and the acceptance of cash, cheque or bankcard was work which was merely ancillary to and a step toward this primary function.

No doubt that part of the employees' duties which involved the recording of particulars of the hire was an important aspect of the employer's business, for without that information all sorts of difficulties could arise. But such recording of information was merely the end result. In my view the work by the applicant in filling out the forms and accepting cash, cheque or bankcard which may be described as "clerical work" was merely ancillary to the primary function of providing a hiring service as described above. Could it be said that every white-collar employee who picks up a pen to record information in the course of his duties, thereby becomes a clerk?

Counsel for the respondents relied upon numerous decisions such as those referred to in Zietz -v- Australian Locum Service Pty. Limited (unreported) - 6 July 1983 in the Industrial Court of South Australia No.289 of 1982. (see also Rowse -v- Harry Gibson & Company 45 S.A.I.R. 1027, Blanch -v- Irving 39 S.A.I.R. 1155, Dwiar -v- Myer(S.A.) Stores Limited (unreported) - 21 June 1976 in the Industrial Court of South Australia No.33 of 1976 and Holtham -v- Koord Pty. Limited (unreported) - 21 June 1983 in the Industrial Court of Australia No.364 of 1981).

Mr Mansfield for the applicant rightly conceded that whether or not Mr Prichard was "a person engaged in a clerical capacity" is a question of fact. But it was submitted by him that the various decisions referred to by counsel for the respondents do not assist in the present matter. Those cases, he argued, dealt with particular Awards. Here the issue was whether or not the applicant is or is not eligible to be a member of the organization.

Rule 2 of the rules of the organization provides that:

"2. CONSTITUTION

The Union shall consist of all persons engaged in any clerical capacity, and/or engaged in the occupation of shorthand writers and typists and/or on calcuating, billing, or other machines designed to perform or assist in performing any clerical work whatsoever."

In my view the decisions referred to by counsel for the respondents are of assistance in determining the proper construction of r.2. Those decisions together with many others (several of which are referred to in Voigtsberger -v- Shire Council of Pine Rivers (1980) 49 F.L.R. 391) concern various Clerks Awards in force throughout Australia. Such decisions demonstrate that for many years persons either in industry or administering the industrial laws (both Federal and State) determine the question whether or not a person is employed as a clerk or is engaged in a clerical capacity by examining the employee's duties and determining whether the employee performs any clerical work and if so whether such duties are the employee's primary function or merely duties ancillary to a primary function which is not clerical. This clearly on authority is the connotation of the phrase "engaged in any clerical capacity" in r.2.

As stated, I am of the view that as a matter of fact the applicant was not employed on or after November 1981 in clerical capacity as so construed. If in fact he was not a member of the Federated Clerks Union of Australia during this period and had made an application under s.144 of the Act seeking a declaration as to his entitlement to belong to that organization, and the evidence in that case was as found by the Court in the present matter then the applicant would not have succeeded in his s.144 application.

But that is not the end of the matter. The applicant became a member of the organization in September 1978 when he applied for membership on becoming an employed organiser of the Branch in the circumstances set out above. This was more than four years ago. Pursuant to s.171F of the Act the act of accepting his application for membership to the organization in September 1978 shall, for all purposes, be deemed to have been done in compliance with the rules of the organization or of the Branch. (Egan -v- Harradine (1975) 25 F.L.R. 336 @ 379-380; Cook -v- Crawford (1982) 43 A.L.R. 83 @ pp.91-93 and pp.143-145).

In Re Keogh and the Federated Clerks Union of Australia Ex parte Linehan (1979) 41 F.L.R. 445 @ 449 Sweeney J. stated:

"It is trite law that once a person is a member of an organization he is entitled to remain a member an organization he is entitled to remain a member until either he or the organization terminates his membership. Termination by the organization generally takes the form of an expulsion of the member for breach of a rule, where specific provision is made for that, or an expungement of the register in certain cases."

(see also Troja -v- Meat Employees Union of Australia (1978) 23 A.L.R. 18).

Further, in Re an inquiry into an election in the Australian Institute of Marine and Power Engineers (Sydney Branch) (unreported) - Sweeney J., 29 September 1980 his Honour stated at p.7:

"In the case of any organization there will clearly arise cases where a person was eligible and became a member when he was admitted, but subsequently changed his occupation and ceased to be eligible. In the case of many organizations, rules provide in such cases for the removal of such persons from membership but if there is to be a power to remove, it must be provided for in the rules. Regulation 115(1)(d)(viii) provides that the rules shall provide the times when and terms on which persons shall become or cease to be members, (cf. Williams -v- Hursey, 103 C.L.R. 30 at p.73-4).
It may be noted that the English courts in dealing with trade unions existing under the Trade Union Act have taken the view that unless a person is qualified under its constitution, he cannot validly be admitted (Martin -v- Scottish Transport and General Workers Union, 1952 1 All E.R. 691)."

The rules of the Branch make provision for the purging of the roll of members in certain circumstances (r.11). It is apparent from the cross-examination of the applicant in the present matter and from statements made by counsel representing the respondents that it is the view of the majority of the officials of the Branch that the applicant's name should be purged from the roll of members of the Branch in accordance with the rules of the Branch.

Indeed, on 20 July 1983 the applicant's solicitor, Mr Lindsay, filed an affidavit sworn by him that day annexing two letters from the Branch Secretary to Mr Prichard dated 13 July 1983. These read:-

"Mr M. Prichard,
46 Birman Cres.,
FLAGSTAFF HILL, S.A. 5159
Dear Sir,
Re: Matter S.A. No.9 of 1982 in the Industrial Division of the Federal Court of Australia

In the above proceedings instituted by you, the respondents on the 27th May, 1983 at page 17 of the transcript of the proceedings gave the following undertaking to the Court:-
"The respondents to receive outstanding fees on or before 31st May without prejudice to their rights as to claim that Mr Prichard is or has not been entitled to be a member during the period to which the fees relate." To which you Counsel Mr Mansfield responded:
"That undertaking having been proffered, we accept that undertaking."
His Honour, Mr Justice Evatt said:
"It is noted."
The respondents undertaking has been honoured and I now desire to advise that the Executive has determined that the staff of the Union shall not accept any further monies proffered by you until the question of your eligibility for membership of the Union in accordance with the Constitution Rule of the Federated Clerks Union of Australia has been determined.

Yours faithfully,"
"Mr M. Prichard,
46 Birman Cres.,
FLAGSTAFF HILL, S.A. 5159
Dear Sir,

Further to my letter of the 4th July, 1983 I desire to advise that the Branch Executive pursuant to Rule 11(d) of the Rules of the Branch as certified by the Federal Industrial Registrar, intends to remove your name from the register of members of the Union pursuant to Rule 11(a)(3) which provides:
"(a) The Branch Executive may direct the removal from the register of the name of any member who:
(1) . . . . . .
(2) . . . . .
(3) who appears to be no longer covered by the Constitution."

The Branch Executive has had before it the decision of Mr Justice Evatt concerning your eligibility for membership of the Union given by him in Matter No.15 of 1981, commencing from the heading ELIGIBILITY OF MR PRICHARD TO BE A MEMBER OF THE ORGANIZATION commencing at the bottom of page 46 of the decision to the end of that section on page 48.
The Executive also has before it the statement of the Judge on page 15 of his Judgement that the Court "has agreed to make a determination as to his eligibility for membership of the organization as at the time of nominating as a candidate in the subject election." The time of nominating was February 1981.
The Executive has also considered your evidence on Oath given before Mr Justice Evatt in Matter No.S.A. 9 of 1982 on Thursday, 7th July, 1983. Such evidence discloses that you are not at this time nor for the time embraced by the evidence therein given, paid the rates of salary which must be paid to any person employed as clerk in South Australia unless such person has a "slow or infirm workers permit".
Your testimony discloses that you are being paid a rate of wage below that which is fixed by any Award for clerical work which applies in this State.
Your evidence further discloses that you have not questioned the rate of pay being paid to you, or sought to have a rate of pay as fixed by Awards which apply to persons employed as clerks or in a clerical capacity by Richard Stevens Hire Company in South Australia, be observed as to your employment.
You testify that you receive an hourly rate of S6.50 per hour for employment on Saturdays, Sundays and Public Holidays and this rate is below any minimum rate which can be identified pursuant to the provision of the Clerks (South Australia) Award, which would be applicable to you if you were employed as a clerk or in a clerical capacity.
The Industrial Court of South Australia in a number of decisions has ruled on the question of whether certain work is that performed by a clerk or a person engaged in a clerical capacity and it is the Executive's view that the work performed by you as described in your evidence does not conform to the Industrial Courts decisions.
I enclose an extract setting out Rule 11 of the Branch Rules as certified by the Federal Industrial Registrar.
Any reply "within 14 days" should be received by me by 5.00 p.m. on Wednesday, 27th July, 1983 at the above address.

Yours faithfully."

The Court, in my view, should not at this stage construe the Branch rule dealing with the purging of the roll of members. What course the Branch takes in this regard is a matter for the Branch itself and if a decision is made by the Branch to remove the applicant's name from the roll of members then the applicant has his rights under the Act and/or under the rules of the organization or the Branch.

On 29 July 1983 the Court, having formed the view that the applicant was not then employed in any clerical capacity within the meaning of r.2 as construed above, discharged the order nisi herein. At that time the undertaking given by the respondents on 27 May 1983 in respect of the applicant's contributions had lapsed. In view of the circumstance that it was clear that the Branch Executive was taking steps to direct the removal of the applicant's name from the register of members should the Court determine that the applicant was not "engaged in a clerical capacity" and consequently would no longer be covered by the Constitution, the Court was of the view that it should exercise its discretion under s.141 and decline to make orders. (cf. Cook -v- Crawford (supra.)). The Court nevertheless considered that it should state its view that the applicant since November 1981 had not been engaged in any clerical capacity within the meaning of r.2 and consequently would not have been eligible to be admitted as a member of the organization as at 29 July 1983.