The Shop, Distribution and Allied Employees' Association of Western Australia v WILLIAMS
[2005] WASCA 155
•12 AUGUST 2005
THE SHOP, DISTRIBUTION AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA -v- WILLIAMS [2005] WASCA 155
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2005] WASCA 155 | |
| Case No: | IAC:3/2005 | 1 JULY 2005 | |
| Coram: | WHEELER JA PULLIN JA LE MIERE AJA | 12/08/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE SHOP, DISTRIBUTION AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA MICHAEL FREDERICK WILLIAMS |
Catchwords: | Industrial relations Order of Commission disallowing rule of Association Whether s 66 and s 110 of Industrial Relations Act 1979 in conflict Turns on own facts |
Legislation: | Industrial Relations Act 1979 (WA) |
Case References: | Atkinson v Lamont (1938) SR (Qld) 33 C & J Clark Ltd v IR Commissioners [1973] 1 WLR 905 Harding v Coburn [1976] 2 NZLR 577 Taylor v Smith (1922) 23 SR (NSW) 174 Nil |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : THE SHOP, DISTRIBUTION AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA -v- WILLIAMS [2005] WASCA 155 CORAM : WHEELER JA
- PULLIN JA
LE MIERE AJA
- Appellant
AND
MICHAEL FREDERICK WILLIAMS
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : HIS HONOUR PRESIDENT P J SHARKEY
File No : WAIRC 00892 of 2005
(Page 2)
Catchwords:
Industrial relations - Order of Commission disallowing rule of Association - Whether s 66 and s 110 of Industrial Relations Act1979 in conflict - Turns on own facts
Legislation:
Industrial Relations Act1979 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A G Rogers
Respondent : Mr M F Williams
Solicitors:
Appellant : Fiocco's Lawyers
Respondent : In person
Case(s) referred to in judgment(s):
Atkinson v Lamont (1938) SR (Qld) 33
C & J Clark Ltd v IR Commissioners [1973] 1 WLR 905
Harding v Coburn [1976] 2 NZLR 577
Taylor v Smith (1922) 23 SR (NSW) 174
Case(s) also cited:
Nil
(Page 3)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with them. I would add that it seems to me that the principal flaw in the appellant's argument was that it attempted to create a relationship between s 110 and s 66 which does not exist. As I understand it, the argument pressed by the appellant really involved reading s 110 as if it provided that "every dispute between an organisation and any of its members … shall, before resort is had to section 66, be decided … " or something to that effect. That is, it was the appellant's suggestion that the effect of s 110 was to require a member first to attempt to resolve the dispute in accordance with the rules of the organisation, if any, relevant to the dispute, and as having then the right of recourse to s 66. However, as Pullin JA points out, that is not the relationship between the sections. Section 110 does not prescribe a procedure which must be followed prior to invoking s 66. Rather, s 110 is "subject to" s 66, and the latter section does not, in its terms, suggest that there is any qualification on the right of a person to apply to the President pursuant to it. In particular, there is no qualification requiring a person first to have resort to any other dispute resolution procedure.
2 PULLIN JA: This is an appeal against orders and declarations made by the President of the Western Australian Industrial Relations Commission on 5 April 2005. The declarations and orders were made in proceedings which had been commenced by the respondent pursuant to s 66 of the Industrial Relations Act 1979 (WA).
3 Section 66(1) provides that a member of a union may apply to the President for an order or direction under the section. Section 66(2) provides that on an application made pursuant to the section, the President may make such order or give such directions relating to the rules of the organisation, their observance or non-observance, or the manner of their observance "either generally or in the particular case" as he considers to be appropriate, and without limiting the generality of the subsection may "disallow any rule which in the opinion of the President … is tyrannical or oppressive …". The President is also authorised under the section to direct the union to alter the rule within a specified time and to disallow any rule which has not been altered by the Union after such a direction is given.
4 The respondent in his application sought to have disallowed sub-rule 8(d) of the union's rules which read as follows:
(Page 4)
- "8 - NOMINATION OF OFFICERS
(d) No known communist may nominate for, or hold, any office in the Union."
5 The orders and declarations made by the President after hearing from the parties and hearing evidence from the parties, were that:
"(1) THAT sub rule 8(d) of the rules of the respondent organisation is tyrannical and oppressive within the meaning of s66(2)(a)(ii) of the Industrial Relations Act 1979 (as amended).
(2) THAT the said sub rule imposes unreasonable conditions upon the membership of the respondent organisation in that:-
a. The said sub rule prevents a member being nominated for membership who is a 'known communist';
b. A member is precluded from nominating from office merely because he/she is a 'known communist' without further definition of that term and/or without any further prescribed excluding condition;
c. The membership is prevented from electing a 'known communist' who is eligible for membership even though that person may not advocate or espouse the violent or subversive overthrow of a government or governments in this country or democratic governments elsewhere.
(3) THAT the respondent organisation herein be and is hereby ordered and directed to alter sub rule 8(d) in accordance with these reasons for decision on or before the 30th day of April 2005.
(4) THAT if the respondent does not alter sub rule 8(d) by the 30th day of April 2005 the aforementioned rule will be hereby disallowed in its entirety, by the operation of this Order."
(Page 5)
6 The union appeals against those orders and directions on the ground that:
"1. The learned President erred in law in holding that he was empowered to determine the application before him notwithstanding a failure by the Respondent to comply with the provisions of section 110 of the Industrial Relations Act 1979 ('the Act') and in so doing made an error in the construction and/or interpretation of the Act in the course of making the decision appealed against;"
7 The union's written submissions claim that s 110 of the Act makes the rules of the organisation "paramount", which implies that s 66 and s 110 are in conflict. The union submits that the intention of s 110 is to ensure that the internal dispute setting mechanisms are obeyed and that it is undesirable that matters which might be resolved at a local level become the subject of unnecessary litigation.
8 Section 110(1) of the Act provides that:
"Every dispute between an organisation and any of its members, … shall, subject to section 66, be decided in the manner directed by the rules of the organisation, or, as the case may be, by the rules of the association."
9 Rule 43 of the union's constitution provides that:
"A book shall be kept on the table of the office, in which shall be recorded all complaints regarding members or employers. The name and address of any member making a complaint should be lodged with the General Secretary and the complaint shall be considered at the next meeting of the Board. All complaints shall be strictly confidential."
10 That rule has no application because the complaint of the respondent is not a complaint about a member or an employer.
11 Rule 7 sets out the powers and duties of the Board of Control of the union. The rule states inter alia:
"[The Board] shall fully investigate all grievances or disputes of members that may be placed before it."
12 Rule 18, which was referred to in the union's written submissions, does no more than state when meetings of the Board are to be held and
(Page 6)
- how they are to be requisitioned. Rule 7 does not compel a member with a grievance or involved in a dispute with the union to place the grievance or dispute before the Board. The respondent's grievance about rule 8(d) was not placed before the Board.
13 The appellant referred to Taylor v Smith (1922) 23 SR (NSW) 174. This was a suit in equity which involved a dispute between members of an English trade union and four members of the Australian section of the union which was registered under the Commonwealth Conciliation and Arbitration Act. The plaintiff sought to restrain the four members from acting as officials. It was held that the suit was one of internal management, the settlement of which was provided for in machinery contained within the rules of the union. If in the Commonwealth Conciliation and Arbitration Act there were provisions like s 66 and s 110, no reference was made to them in the judgment in that case. That case is therefore distinguishable and provides no support for the appellant's argument. The appellant also referred to Atkinson v Lamont (1938) SR (Qld) 33. In this case a trade union had in its registered rules a provision which came in conflict with the provisions of the Commonwealth Conciliation and Arbitration Act. A court disallowed the provision as being contrary to law by reason of such conflict. One of the arguments advanced by the defendants was that s 69 of the Act, which provided that "every dispute between an organisation and any of its members shall be decided in the manner directed by the rules of the organisation", ousted the jurisdiction of the court. This argument failed because there were no rules of the organisation applicable to the dispute. See Henchman J at 59 and Graham AJ at 61. Furthermore, s 69 of the Federal Act did not make that section subject to a provision like s 66 of the Western Australian Act.
14 In my opinion there is no conflict between the operation of s 66 and s 110 in this case. Section 110 is a general provision which provides for certain disputes to be dealt with outside the Commission. Section 66 is a specific provision which authorises the persons specified to make an application for an order under s 66, which section concerns itself with the rules, their validity, their interpretation and their proper application.
15 Even if the respondent's grievance or dispute had been placed before the Board and it had been argued that there was then a conflict between the operation of the two sections, that would not prevent a member making an application under s 66. That is because the words "subject to s 66" (which appear in s 110), is the standard way Parliament makes clear which provision is to prevail in the event of conflict: Harding v Coburn
(Page 7)
- [1976] 2 NZLR 577 at 582; C & J Clark Ltd v IR Commissioners [1973] 1 WLR 905 at 911. I should mention that the President in his discretion under s 27(1) could have adjourned the application until the respondent's grievance had been placed before the Board and dealt with by it. However, that is not something which arises for consideration on this appeal.
16 There was a second ground of appeal which depended upon ground 1 succeeding. In the circumstances there is no need to consider it and in any event the ground did not raise a ground of appeal which could be entertained under s 90 of the Industrial Relations Act 1979. Ground 3 depended on ground 2 succeeding. It must also be dismissed.
17 The appeal should be dismissed.
18 LE MIERE AJA: I agree that the appeal should be dismissed for the reasons stated by Pullin JA.
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