The Federated Storemen & Packers Union of Australia v Waterside Workers Federation of Australia

[1989] FCA 605

JUDGMENT No. 605% . ....... ....-....- 89

FOR LIMITED DISTRIBUTION

INDUSTRIAL LAW - Principal proceeding whereby one registered

organisation seeks deregistration of another registered

organisation - Demarcation disputes - Application for

intervention by third registered organisation - Application

granted subject to condition limiting intervenor to the tender

of documentary evidence and the making of submissions.

Conciliation and Arbitration Act 1904 s.106(2).

Industrial Relations (Consequential Provisions) Act 1988 6.9.

NSW I 30 of 1988
TEE FEDERATED STOREWEN AND PACKERS' UNION OF AUSTRALIA v

WATERSIDE WORKERS' FEDERATION OF AUSTRALIA

Wilcox J
Sydney
27 September 1989

FOR LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY 1 NO. N I 30 of 1988

)

INDUSTRIAL DIVISION )

BETWEEN: THE FEDERATED STOREMEN L

PACKERS' UNION

Applicant

AND: WATERSIDE WORKERS'

FEDERATION OF AUSTRALIA

Respondent

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	27 SEPTEHBER 1989

MINUTES OF ORDER

THE COURT ORDERS THAT:
1.	Leave be granted to the Australian Shipping and Travel Officersf Association to intervene in the principal proceeding.

2.         The intervention be limited to the tender of

documentary evidence -- for example, rules of any organisation and awards -- together with the making
of submissions upon the proper interpretation of any documents admitted into evidence.
Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also Order 37 rule 2(3)1.

FOR LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY )	No. N I 30 of 1988
INDUSTRIAL DIVISION

BETWEEN: FEDERATED STOREMEN L

PACKERS' UNION

Applicant

AND: WATERSIDE WORKERS'

FEDERATION O? AUSTRALIA

Respondent

C O R M :	WILCOX	J
PLACE:	SYDNEY

DATE :  27 SEPTEMBER 1989

EXTEMPORE REASONS FOR JUDGMENT

There is pending before the Court a proceeding

instituted by the Federated Storemen and Packers' Union of
Australia seeking the deregistration of the Waterside Workers1

Federation of Australia.

The proceeding was commenced prior to the repeal of

the Conciliation and Arbitration Act 1904. Pursuant to 6.9 of
the Industrial Relations (Consequential Provisions) Act 1988,
the Court is required to complete the hearing and
determination of the proceedings as if the previous Act had
not been repealed.

By a Notice of Motion filed on 19 September 1989 the

Australian Shipping and Travel Officers* Association, an
organisation of employees registered under the Industrial
Relations Act 1988, seeks an order granting it leave to

intervene in the pending proceeding. In support of that

application an affidavit sworn by Mr P J Pasfield, the
solicitor for the applicant organisation, was read. Mr
Pasfield was briefly cross-examined by counsel for the

Waterside Workers' Federation, who resists the application for

intervention.	Hr Pasfield annexed to his affidavit a copy of
the rules of his client.	Rule 4 of these rules contain a

statement of the eligibility requirements for members:

"The Association shall consist of and is open
to an unlimited number of members, who ray be
employed on the weekly or salaried staff of
any shipping company, ship owner, shipping

agency, non vessel operating container carrier

and/or chartering agency, non vessel operating

(NVOCC), ship charterer, ship broker, shipping

container carrier (NVOCC) agency, cargo consolidator, shipping conference, classification society, marine consultants and service organisations, travel agency, or shipping department or travel department of an employer with other business interests and who are not eligible for membership in any existing registered organisation limiting its membership solely to those employed in the shipping industry together with such other persons whether or not employees in the industry as have been appointed officers of the Association and admitted as members thereof ."

Then follows a series of provisos which are not presently
relevant. It will be noted that the eligibility requirement
is stated in wide terms and that the extent of the requirement
depends upon the eligibility of persons for membership in

another registered organisation.

The evidence as to the interaction between the

matters which have given rise to the principal proceeding and
the concern of the applicant Association is not very
satisfactory. According to Points of Claim which have been
filed, the applicant in the principal proceeding complains of

the activities of the respondent in recruiting certain persons

as members; those persons being engaged by one o f three

companies, namely, Port Botany Container Depot Pty Limited,

Liner Freight Services Pty Limited and Seatons Container

Freight Station Pty Limited. Port Botany Container Depot

apparently operates container facilities at two locations, at
Banksmeadow and at Botany Bay Industrial Estate. Liner

Freight Services is said to operate a depot at Villawood and

Seatons Container Freight Station at Camellia.

The complaint of the applicant in the principal

proceeding, in effect, is that the Waterside Workersf
Federation has been recruiting persons who were, or were
eligible to be, members of the Federated Storemen and Packersf
Union. Essentially the principal proceeding is a demarcation
dispute between the parties thereto.

There is no evidence as to whether the Australian

Shipping and Travel Officers' Association employs people at
any of the container facilities which are referred to in the

Points of Claim. One may perhaps infer such an employment in

at least one case, namely Villawood. I say this because the

Shipping Officers' Award 1987, which is annexed to Hr Pasfield's affidavit, provides a location allowance at Villawood. Hr Pasfield said that he had personal knowledge of this facility and I take from his evidence that it is the facility referred to in the Points of Claim. There is no evidence that the waterside Workers' Federation has so far attempted to recruit any persons who are members of the Shipping and Travel Officers' Association or that any people who would otherwise have joined that Association have joined the Waterside Workers' Federation.

Notwithstanding these matters' counsel for the

Australian Shipping and Travel Officers' Association contends

that this is a case in which the Court ought to grant leave to
intervene. Section 1 0 6 ( 2 ) of the Conciliation and Arbitration Act assumes the existence of a power in the Court "to grant	-
leave to a person or organization to intervene in any matter before the Court". But the subsection goes on to prohibit the exercise of that power "except in a case where the Court is of the opinion that it is desirable that a person or organization
should be heard". In essence, this simply leaves the matter
for the Court to determine, having regard to the circumstances and the assistance which is likely to be obtained by the presence of that party before the Court.
In Owen v Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569 at p.576, a Full Court of this Court commented:

"Normally litigation in this court will be
between parties and we are of the view that

intervention should not be lightly allowed."

I think that the evidence as to the involvement of

persons who are existing or potential merbers of the
Australian Shipping and Travel Officer#' Association with the
subject matter of the principal proceeding is rather tenuous.
1t may well be, as Hr Crawshaw submits, that in fact no
members of that organisation are employed at any of the
relevant depots or would be affected by the determination of

the issues in the principal proceeding.

On the other hand, there is substance in nr Baylen's

submission that the critical question is the interpretation of
the eligibility rules of the Waterside Workers' Federation of
Australia, it being complained by the applicant in the
principal proceeding that those rules have been exceeded. It
is said that, to the extent that those eligibility rules are
widely construed, this may impact upon the ability of the
Australian Shipping and Travel Officers' Association to
recruit persons in the shipping industry as members.
According to counsel, it does not matter whether there are
presently employees in the relevant depot; the Association
has an interest in avoiding an unduly wide interpretation of
the rules of the Waterside Workers* Federation of Australia.

I think that this submission is correct and that it

is in the interests of justice that there be an opportunity to
put before the Pull Court, determining the principal
proceeding, any submissions which the Australian Shipping and
Travel Officers' Association may wish to make as to the
respective areas of operation of the organisations, involved
in the shipping industry, who are concerned about this case.

It is important that any intervention should not have the effect of significantly prolonging the hearing of the

matter. I do not think that the Court should readily permit

an intervention which has the effect of forcing upon the

parties to the principal proceedings a much longer hearing

than they had anticipated; for example, because of the

introduction of evidence which is in contest and which must be
responded to and/or made the subject of cross-examination.

If the proposed intervention involved such effects, I think that I would have taken the view, in the exercise of the Court's discretion, that the contribution which might be made

by way of submissions on behalf of the Australian Shipping and
Travel Officers' Association was outweighed by the burden
which the intervention would place upon the other parties.
However, nr Baylen m d e it clear that there is no intention of
introducing contested evidence. He indicated that his client
would be prepared to submit to a condition limiting its
intervention to the putting of submissions; allied perhaps
with the tender of documents, such as the rules of the
relevant organisations and relevant awards. Such a condition
would preclude the adduction of evidence as to what is in fact
happening in different depots, and which may well be
contentious and give rise to the sort of difficulty to which I
have referred.

So limited, it seers to me that the intervention

ought not to make any significant effect to the length of the

hearing. It may well be that, when the facts are all out, any

contribution which may be made by counsel on behalf of the
Australian Shipping and Travel Officers1 Association will be

-

extremely limited.

If so, no doubt the Full Court hearing the

matter will so indicate to counsel. If, on the other hand, it

does appear that there is a real question as to the limits of the eligibility rules, the Full Court will only be advantaged by having submissions on behalf of an organisation which, on

any view, has an interest in the proper demarcation of its
role in the industry. On balance, I think that this is a
proper case in which to allow intervention; but upon the
condition which I have mentioned.

Accordingly, I propose to allow the application. I

grant leave to the Australian Shipping and Travel Officers' Association to intervene in the principal proceeding. The intervention is to be limited to the tender of documentary

evidence -- for example, rules of any organisation and awards

-- together with the making of submissions upon the proper

interpretation of any documents admitted into evidence.

I certify this and the seven (7)

preceding pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox.

Associate:

Date:	29 September 1989
Counsel for the Applicant:	Mr M Walton
Solicitors for the Applicant:	Turner ?reeman
Counsel for the Respondent:	Mr S Crawshaw
Solicitors for the Respondent:	Taylor C Scott
Counsel for the Australian
Shipping and Travel Officers'
Association:	Hr W R Haylen with Mr J H Pearce
Solicitors for the Australian Shipping and Travel Officers' Association:	Geoffrey Edwards & CO
Date(s) of hearing:	27 September 1989