Tierney v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union of Australia and Baillie
[1996] IRCA 194
•16 May 1996
DECISION NO: 194/96
CATCHWORDS
INDUSTRIAL LAW - Registered organisations - entitlement of an applicant for membership who has up to a time within one month before the application acted in good faith and been treated as a member - whether Court can make a declaration in respect of de-registered organisation upon application made after amalgamation day - whether right of applicant for membership to seek declaration imposes a "liability" on organisation
Industrial Relations Act 1988 (Cth) ss 191(3), 234, 238, 242(2)(b), 253Q, 253R, 253S, 253V, 260, 294(5) and 298
Conciliation and Arbitration Act 1904 (Cth) ss 171A, 171B, 171C, 171D, 171E, 171F and 171G
Re Food Preservers Union of Australia (1988) 79 ALR 138
Winter v Inland Revenue Commissioners [1963] A.C. 235
GAYLE ANNE TIERNEY v AUTOMOTIVE, FOOD, METAL, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF AUSTRALIA and STEPHANIE RUTH BAILLIE
VI 5315 of 1995
Spender, Ryan and Moore JJ
Melbourne
16 May 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No VI 5315 of 1995
VICTORIA DISTRICT REGISTRY )
ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
BETWEEN: GAYLE ANNE TIERNEY
(Appellant)
AND: AUTOMOTIVE, FOOD, METAL, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF AUSTRALIA
(First Respondent)
AND: STEPHANIE RUTH BAILLIE
(Second Respondent)
CORAM: Spender, Ryan and Moore JJ
DATE: 16 May 1996
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That the appeal be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No VI 5315 of 1995
VICTORIA DISTRICT REGISTRY )
ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
BETWEEN: GAYLE ANNE TIERNEY
(Appellant)
AND: AUTOMOTIVE, FOOD, METAL, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF AUSTRALIA
(First Respondent)
AND: STEPHANIE RUTH BAILLIE
(Second Respondent)
CORAM: Spender, Ryan and Moore JJ
DATE: 16 May 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
SPENDER and RYAN JJ: The facts and relevant legislative provisions and the issue arising from them on this appeal have been carefully and succinctly set out and identified in the reasons for judgment of Moore J. Accordingly, we are able to proceed directly to endeavour to explain why, regrettably, we have been unable to come to the same conclusion as his Honour.
The sole issue is whether an order under s. 260 can be made in respect of an organisation which is no longer registered at the time when the application to the Court is made or when the Court makes its order. In support of the wider view that such an order can be made, it was argued that s. 260 should be approached with a generosity of construction appropriate to its remedial purpose.
Three possible understandings can be imputed to the legislature in its framing of s. 260. The first is that favoured by Moore J that the remedial reach of the section was intended to extend to de facto membership of an organisation before it amalgamated with another organisation so as to bring to an end the registration of the first organisation.
The second is that Parliament overlooked the need for s. 260 to have any such remedial reach because it assumed that rights as members of persons who had been, or been treated, as members of the former (de-registered) organisation would henceforth require to be defined only in relation to the continuing (registered) organisation. On this analysis, no regard was paid to the possibility, which occurred here, that a person might need, for the purpose of seeking election in the continuing organisation, to be recognised as having had a specified period of de jure membership of the former (de-registered) organisation.
Thirdly, Parliament may be taken to have deliberately confined the operation of s. 260 to relief in respect of an organisation which is still in existence at the time when the application is made to the Court as provided by s. 260(5). This third analysis has the corollary that the legislature, rather than overlooking the possible effect of amalgamation on a person in the position of present appellant, left rectification of that situation to the rules of the continuing registered organisation as proposed to be amended, if thought appropriate, pursuant to s. 253Q(3).
With respect to Moore J's preference for it, we regard the first of the three expressions of legislative intent which we have just identified, as by far the most difficult to impute to Parliament. We are led to that conclusion primarily by what we consider is the intractable language of s. 260 itself. In all relevant respects, the section refers to "the" organisation. In light of the fact that jurisdiction under s. 260 is, by sub-s(2), enlivened by an application to the Court, that use of the definite article requires that the organisation continue in existence as such both at the time of the application and at the time when an order is made as provided by sub-s(4) even though, as that sub-section makes clear, the order may have retrospective operation to the time from which the person acted as, and was treated as, a member of the organisation. It is significant in this context that s. 260(7) has been carefully inserted to preserve the possibility of the jurisdiction's being invoked in respect of conduct occurring before the commencement of the section. Had it been intended to effect a similar preservation of jurisdiction in respect of a person having acted or been treated as a member of a formerly registered organisation, it would have been easy to have said so.
It is also to be remembered that s. 260 finds its place in Division 8 of Part IX of the Act which is headed "Validating provisions for organisations". As the language of the sections in that Division and their history demonstrates, it is essentially concerned to provide a facility for curing invalidities or overcoming doubts and difficulties arising in the conduct of an organisation. By contrast with Division 9 of Part IX, Division 8 is not primarily concerned to confer or declare an individual's rights to or accruing from membership of an organisation.
We are unable to accord to "organisation" in Division 7 any different meaning from that ascribed by s. 4 which provides that "organisation means an organisation registered under this Act". The word "organisation" standing alone is not used in any special sense in Division 7. Where a special sense is required, it is used as part of one of the compound expressions "amalgamated organisation", "de-registered organisation", "proposed amalgamated organisation" and "proposed de-registering organisation" each of which is specifically defined in s. 234. The use of the word in those compound expressions is probably sufficient itself to render inapplicable the definition in s.4. If not, it certainly amounts to a "contrary intention" as postulated by the prefatory words of s. 4.
For these reasons we do not regard it as open to say that in Division 7 "organisation" is used to describe both an organisation that is registered after an amalgamation has taken effect and an organisation that has been de-registered upon its taking effect. We construe the compound expression "de-registered organisation" as equivalent to "a body that was formerly but is no longer registered under this Act".
"Liability" is given by s. 234 a wide definition for the purposes of Part IX Division 7 of the Act. However, it has to be borne in mind that the expression, for all its width, is used in s. 235R in conjunction with its conceptual relative "asset". In our view, s. 235R is concerned to preserve and transfer to the amalgamated organisation all of the rights and obligations which are actually or potentially enforceable at law by or against the de-registered organisation so as to require to be reflected or noted in its balance sheet if one were prepared immediately before amalgamation. Thus, in Winter v Inland Revenue Commissioners [1963] AC 235, Lord Reid explained, at 249, a contingent liability as one "which, by reason of something done by the person bound, will necessarily arise or come into being if one or more certain events occur or do not occur". A mere inchoate entitlement to be admitted to, and be treated as a member of, an organisation is not of that character. That is not to say that a declaration when made as contemplated by s. 260, may not create in the person concerned a right, as for example, to share in some identified fund, which is enforceable against the assets of the organisation so as to amount to one of its liabilities in terms of s. 235R. However, mere amenability of an organisation to a declaration of that kind cannot be equated, in our view, with even a contingent liability for the purposes of s. 235R.
This Court was invited by Mr Borenstein of Counsel for the appellant to give s. 260 a wide operation consistent with its remedial purpose. However, we view the remedial purpose of the section as being confined to curing irregularities in the admission of persons as members, or in the treatment of them as members, of an "organisation" as that expression is consistently used through the Act to denote a currently registered organisation. There is thus no occasion for applying s. 15AA of the Acts Interpretation Act 1901.
For these reasons, we would dismiss the appeal.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of their Honours Justices Spender and Ryan.
Associate:
Date:
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) No. VI 5315 of 1995
)
GENERAL DIVISION )
BETWEEN: GAYLE ANNE TIERNEY
Appellant
AND: AUTOMOTIVE, FOOD, METAL,
ENGINEERING, PRINTING & KINDRED
INDUSTRIES UNION OF AUSTRALIA
First Respondent
STEPHANIE RUTH BAILLIE
Second Respondent
CORAM: Spender, Ryan and Moore JJ
PLACE: Melbourne
DATE:
REASONS FOR JUDGMENT
MOORE J: This is an appeal from the judgment of 29 September 1995 of Keely J in an application made by Gayle Anne Tierney ("the appellant") under s260 of the Industrial Relations Act 1988 ("the Act"). While that application was one of a number determined by his Honour on 29 September 1995, it is not necessary to describe all the circumstances leading to the application under s260 nor is it necessary to describe the nature of the other applications and how they were dealt with as the issue raised in this appeal is a discrete one which is narrow in compass.
The relevant facts can be set out shortly. On the 8 February 1993 an amalgamation took effect between the Vehicle Builders Employees Federation ("VBEF") and the Metals and Engineering Workers Union ("MEWU"). Both were organisations registered under the Act prior to that date. The MEWU remained registered when the amalgamation took effect though its name changed to the Automotive, Food, Metals and Engineering Union ("AFMEU"). The VBEF was, on 8 February 1993, de-registered: see s253Q(3)(c).
On 4 July 1989 the appellant completed an application for membership of VBEF which was endorsed by the Victorian Branch Secretary as if the appellant had then been admitted to membership. She was not then eligible for membership of VBEF, nor did she become eligible prior to its de-registration. Keely J found that between 4 July 1989 and 8 February 1993 the appellant acted in good faith as, and was treated by the VBEF as, a member of VBEF. Had her irregular admission to membership of VBEF become apparent before the amalgamation, an application could have been made to VBEF under s260(1). There is no evidence of such an application having been made. His Honour further found that at all material times on and after 8 February 1993 the appellant acted in good faith as, and has been treated by AFMEU, as a member of AFMEU. Neither of these findings has been put in issue in this appeal. Nor have findings by Keely J that the appellant applied for membership of AFMEU on 6 December 1994 and that she was, at that time, eligible for membership of AFMEU by virtue of casual employment she commenced the day before.
The issue dealt with by Keely J and raised in this appeal concerns the scope of s260 which provides:
"(1)Where:
(a)a person who is eligible for membership of an organisation (other than a member of the organisation or a person who has been expelled from the organisation) applies to be admitted as a member of the organisation; and
(b)the person has, up to a time within one month before the application, acted in good faith as, and been treated by as, a member;
the person is entitled to be admitted to membership and treated by the organisation and its members as though the person had been a member during the whole of the time when the person acted as, and was treated by the organisation as, a member and during the whole of the time from the time of the person's application to the time of the person's admission.
(2)Where a question arises as to the entitlement under this section of a person to be admitted as a member and to be treated as though the person had been a member during the items referred to in subsection (1):
(a)the person;
(b)a person who is or desires to become the employer of the person; or
(c)the organisation;
may apply to the Court for a declaration as to the entitlement of the person under this section.
Subject to subsection (5), the Court may, in spite of anything in the rules of the organisation concerned, make such orders (including mandatory injunctions) to give effect to its determination as it considers appropriate.
The orders that the Court may make under subsection (3) include an order requiring the organisation concerned to treat a person to whom subsection (1) applies as being a member of the organisation and as having been a member during the times referred to in subsection (1).
Where an application is made to the Court under this section:
(a)if the application is made otherwise than by the person whose entitlement is in question - the person shall be given an opportunity to be heard by the Court; and
(b)if the application is made otherwise than by the organisation concerned - the organisation shall be given an opportunity to be heard by the Court.
A reference in this section to a person having acted as, or been treated by the organisation as, a member of an organisation includes a reference to a person having so acted or been so treated during a period before the commencement of this section."
It can be seen that s260(1) confers a right on a person to be admitted to membership of an organisation and to be treated as having been a member of the organisation if the conditions in paragraphs (a) and (b) of that sub-section are satisfied. In the present case Keely J concluded that the conditions were satisfied, as they concerned the AFMEU, on and from 8 February 1993 and an order was made in the following terms:
"It is declared that Ms G Tierney is entitled to be admitted to membership of the Automotive, Food, Metals and Engineering Union and treated by it and its members as being a member, and having been a member since 8 February 1993."
The order was confined to the period commencing 8 February 1993 because that was the date the amalgamation between VBEF and MEWU took effect. His Honour appears to have concluded that the various references to "the organisation" in s260 was to an organisation which was registered at the time the order was made and had been registered during the period in relation to which the order would operate. An order could not be made in relation to a period where an applicant has been treated as a member of an organisation if the organisation was no longer registered and/or was not the organisation which was registered when the order was made and upon which it would operate. That conclusion the appellant puts in issue in this appeal.
The word "organisation" is defined in s4 of the Act:
""organisation" means an organisation registered under this Act."
As counsel for the second respondent points out, that definition formed part of the definition of "organisation" when the Conciliation and Arbitration Act 1904 was first enacted. The defined meaning applies in many provisions of the Act. For example, the language describing the procedures for registration found in Part IX of the Act and the procedures themselves draw a distinction between the association seeking registration and its status as an organisation upon registration. Indeed s191(3) provides that:
"(3)On registration as association becomes an organisation."
Similarly the language of the provisions in Part X of the Act concerning the cancellation of the registration of an organisation and the procedures they establish draw a distinction between the organisation whose registration might be cancelled and its status if its registration is cancelled. That status is described as either a "former organisation": see s294(5) or an "association": see s298.
Of some significance in this appeal, in my opinion, is the scheme for amalgamations created by Division 7 of Part X of the Act. Amalgamations may be effected in a number of ways. However I describe, to illustrate the scheme, the means of amalgamation apparently adopted by VBEF and MEWU which has been regularly adopted by amalgamating organisations since the Act came into force in March 1989. Two organisations adopt, by resolution of each of their committees of management: see s240(1), a scheme of amalgamation: see s238. That scheme identifies the organisations involved and which of them is to have its registration continue: see s238(2)(a)(i), and which is to be de-registered: see s238(2)(a)(ii). The former is described as the amalgamated organisation and the latter as the proposed de-registering organisation before the amalgamation takes effect or the de-registered organisation after it has. It is entirely a matter for the organisations concerned to determine which organisation will have continuing registration.
The scheme may also identify the changes to be made to the eligibility rules of the organisation whose registration is to continue so as to reflect the industrial coverage derived from the eligibility rules of the other organisation involved in the amalgamation which is to be de-registered: see s238(2)(c). The scheme also identifies any altered name to be adopted by the organisation whose registration is to continue. An alteration to the name could reflect the additional areas of industry, or callings, resulting from any enlargement to its eligibility rules: see s238(2)(b). Subdivision E of Division 7 provides, subject to exceptions and qualifications which are not presently relevant, for a ballot of the members of the organisations involved in the amalgamation to determine whether they approve of it. Each member voting is sent a copy of the outline of the scheme of amalgamation: see s253J(5) which had earlier been lodged by the organisations involved: see s242(2)(b), and which may have been amended prior to the ballot. If the amalgamation is approved in the ballot a designated Presidential member must, if certain preconditions are met, fix a day upon which the amalgamation will take effect: see s253Q(2). On that day any changes to the rules of the organisation whose registration continues, take effect: see s253Q(3) which would include any change of name, if the name formed part of the rules, and changes to the eligibility rules. Further the designated Presidential Member is then to de-register the organisation that the scheme contemplated would be de-registered. The members of that de-registered organisation become, by operation of the Act, members of the organisation whose registration continues: see s253Q(3)(d) though members may resign that membership: see ss253S and 264. The organisation whose registration continues assumes, in a number of material respects, the mantle of the organisation which is de-registered. The awards binding the latter bind the former: see s253T, proceedings against the latter become proceedings against the former: see s253V and the assets and liabilities of the latter become the assets and liabilities of the former: see s253R.
Section 260 is one of a number of provisions found in Division 8, which is entitled Validating Provisions for Organisations, of Part IX of the Act. The Division perpetuates provisions found in Part IXA of the Conciliation and Arbitration Act 1904 at the time of its repeal in 1988, namely ss 171A, 171B, 171C, 171D, 171E, 171F and 171G. The legislative predecessor of s260 was s171E. Another provision in Part IXA, s171C, empowered the Federal Court of Australia to make orders rectifying invalidities in elections in an organisation or in the management or administration of an organisation. In Re Food Preservers Union of Australia (1988) 79 ALR 138 at 144 a Full Court discussed the approach to be adopted to the construction of s171C. The Court said:
"Section 171C of the Act is remedial in nature. The Court should form a broad view of the power conferred by that section. It should not take a narrow or technical approach to the exercise of the power."
No different an approach, in my opinion, should be adopted to the construction of s260. The plain purpose of s260(1) is to convert de facto membership of an organisation to actual membership and if the status afforded a de facto member by s260(1) is not recognised by the organisation or otherwise not recognised, orders may be made by the Court under s260(3) requiring recognition of that status. I refer to de facto membership and actual membership to draw a distinction between a relationship of the type referred to in s260(1)(b) and membership resulting from regular admission to, and retention of, membership. Section 260(3) empowers the Court to make orders overcoming the effect of any irregularity concerning the admission to membership or continuation in membership of a person who has, notwithstanding the irregularity, acted as and been treated as a member.
I should, at this point, make clear that no issue was raised in the appeal concerning the operation of s260 by reference to the fact that the appellant was not eligible for membership of VBEF when she first applied in 1989, remained ineligible for membership of VBEF till February 1983 and, it seems, was not eligible for membership of AFMEU till December 1994. Both the appellant and second respondent made submissions in the appeal on the assumption that s260(1) could operate if, at the date the application was made for admission to membership, the applicant was then eligible for membership. Eligibility at the time the application was made was viewed as sufficient to enliven the operation of s260 in relation to prior de facto membership. Whether s260 operates this way was not in issue, and it is thus not a matter we have been called upon to decide.
The critical issue in this appeal is what is comprehended by the expression "acted in good faith as, and been treated by the organisation as, a member" as it appears in s260(1)(b) and when it is repeated both in the concluding words of s260(1) and in s260(6). It is clear, in context, that the organisation upon which 260(1) operates of its own force and which would be bound by any order made under s260(3) would be the organisation registered under the Act at the time the application for admission referred to in s260(1)(a) was made. That organisation is "the organisation" referred to in s260(1)(a), first referred to in the concluding words of s260(1), referred to in s260(2), (3), (4) and (5).
However it is necessary to consider whether the operation of s260(1) is limited to the period in which the relationship referred to in the expression "acted in good faith as, and been treated by the organisation as, a member" existed with the organisation to which application for membership was made in the way contemplated by s260(1)(a). In the period prior to an amalgamation taking effect, a de facto member of the organisation which will be deregistered, might have a relationship with it which would attract the operation of s260(1) if an application for membership was made to it. If so, it is necessary to consider the operation of s253Q(d) and s253R. These sections provide:
"253Q(3)On amalgamation day:
(a)...
(b)...
(c)...
(d)The persons who, immediately before that day, were members of a proposed de-registering organisation become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation.
and:
253R(1)On the amalgamation day all assets and liabilities of a de-registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation.
(2)For all purposes and in all proceedings, an asset or liability of a de-registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day."
The word "liability" is defined in s234:
""liability" means a liability of any kind, and includes an obligation of any kind (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing)."
The word "liability" is defined as including a contingent obligation of any kind.
Section 253Q(3)(d) might operate in one of two ways. On one construction it would render a de facto member of the deregistering organisation a de facto member of the organisation whose registration continues, that is the amalgamated organisation, and, if so, s260 might then operate on the de facto membership both before and after the amalgamation. The other construction is that s253Q(3)(d) transfers the membership of actual members only. However it is reasonably plain having regard to not only the terms of s253Q(3)(d) but also s253S that the word "members" in s253Q(3)(d) is a reference to actual members only and not to de facto members. Thus s253Q(3)(d) does not operate to transfer the "membership" of a de facto member.
However, s253R results in the amalgamated organisation assuming all liabilities of the de-registered organisation. The word "liability" is defined in wide terms. Section 260(1) obliges an organisation to admit a person to membership and treat that person as having been a member if certain preconditions are satisfied. It is, in my opinion, consistent with the width of the language used to define "liability" in s234 to treat the conditional obligation imposed by s260(1) on an organisation as a liability. It is, in essence, a contingent obligation arising from the provisions of the Act. Accordingly the liability of the deregistered organisation under s260 becomes the liability of the amalgamated organisation. Thus a de facto member who could have made application for membership of the deregistered organisation so as to enliven the beneficial operation of s260(1), does not lose that statutory right when that organisation is deregistered in an amalgamation. Rather the liability of the deregistered organisation is assumed by the amalgamated organisation and the member may, in relation to the amalgamated organisation, enliven the beneficial operation of s260(1) by making application for membership to the amalgamated organisation. When that is done and if the other preconditions in s260(1)(b) are still satisfied, the liability of the amalgamated organisation arises and it must recognise the person as a member and treat them as a member for the entire period of de facto membership both of the amalgamated organisation and the deregistered organisation.
Such a construction of s260 and s253R gives s260 a wide operation consistent with its remedial purpose: see s15AA of the Acts Interpretation Act 1901. To take any narrower view of s260 is to deny its remedial operation on a period of de facto membership of an organisation which has amalgamated with another organisation but has, by decision of the organisations concerned and endorsed by the membership in ballot, been de-registered as part of the amalgamation process. It is unlikely, in my opinion, that Parliament intended its operation to be so limited.
I would allow the appeal, set aside the order of Keely J and make the orders sought by the appellant, the form of which was not put in issue by the second respondent.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice M.F. Moore.
Associate: ........ ........ ......
Dated: ..../..../....
Counsel for Appellant : Mr H. Borenstein
Solicitors for Appellant : Slater & Gordon
Counsel for First Respondent : No appearance
Solicitors for First Respondent : No appearance
Counsel for Second Respondent : Mr D. Staindl
Solicitors for Second Respondent : Wilson Potter Nicholson
Date of Hearing : 9 February 1996
Date of Judgment : 16 May 1996
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