Trade Practices Commission v Mobil Oil Australia Ltd

[1984] FCA 238

Re: JOHN CHARLES ROLPH
And: TRANSPORT WORKERS UNION OF AUSTRALIA
No. T1 of 1984
Industrial Law
8 IR 145

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
EX TEMPORE JUDGMENT
Smithers J.
Woodward J.
Northrop J.

CATCHWORDS

Industrial law - validation of the acts of a collective body of an organization - meaning of 'collective body' - declaration sought that validation would do substantial injustice - how 'substantial injustice' should be tested.

Conciliation and Arbitration Act 1904 ss.171A, 171F, 171G

HEARING

HOBART

#DATE 25:7:1984

ORDER

1. The appeal be dismissed.

JUDGE1

I concur with the reasons therein of my brother Woodward J.

JUDGE2

This application concerns a meeting of a union (being an organization of employees under the Conciliation and Arbitration Act 1904) which took place eight years ago on 7 August 1976. It was a special general meeting of the Tasmanian Branch of the Transport Workers Union and was held pursuant to an order of the Commonwealth Industrial Court that the rules of the Union be observed.

2. At the meeting certain charges were made against the appellant who was then the Branch Secretary. They were unanimously found to have been established to the satisfaction of the meeting, which the appellant chose not to attend. The meeting then passed a vote of no confidence in the appellant; and the Branch President who, in accordance with the Union rules and the Court order, chaired the meeting, declared the appellant's office to be vacant as he was bound by the rules to do. The appellant contested and lost a later election.

3. He has brought this action seven years later because he obviously suffers from a deep sense of injustice. He is determined to take whatever steps are open to him to clear his reputation of the damage which he feels it suffered at the meeting, although he concedes that he cannot undo the several elections which have taken place since he was ousted from office. He seeks, in essence, a declaration that the meeting was not properly conducted and the meeting's conclusions not validly reached.

4. The present application marks only a preliminary step in the appellant's foreshadowed plan of campaign. He wishes to avoid the effect of s.171F of the Conciliation and Arbitration Act ('the Act'), which he believes would prevent him from challenging the conduct and conclusions of the meeting because it is designed to protect union decisions and actions which have stood unchallenged for at least four years. He has applied under s.171G of the Act for a declaration that s.171F should not be permitted to prevent his challenge to the meeting, because of the injustice he would suffer if he were so prevented. The learned trial judge, in a careful and detailed judgment, after hearing evidence, rejected the application; and the appellant, who appeared in person, has failed to persuade me that his Honour fell into any error in reaching his decision. On the contrary, his findings of fact are fully supported by the evidence and there is nothing I can usefully add to what his Honour has said about the merits of the application.

5. There is however an aspect of the application which was not raised before his Honour (or indeed before this Court until the matter was raised from the Bench) which requires attention. It involves consideration of the precise effect of ss.171F and 171G of the Act, the relevant parts of which are in the following terms -

"SECTION 171F VALIDATION OF CERTAIN ACTS

171(F)(1) (Deemed compliance) Subject to this section and to section 171G, upon the expiration of 4 years from -

(a) the doing of an act -

(i) by, or by persons purporting to act as a collective body of an organization or branch of an organization and purporting to exercise power conferred by or under the rules of the organization or branch; or

(ii) by a person holding or purporting to hold an office or position in an organization or branch and purporting to exercise power conferred by or under the rules of the organization or branch;

......

the act, .... shall, for all purposes, be have been done in compliance with the rules

SECTION 171G ORDER AFFECTING APPLICATION OF SECTION 171B OR 171F

171G(1) (Declaration of substantial injustice) Where, upon an application for an order under this section, the Court is satisfied that the application of .... section 171F to an act would do substantial injustice having regard to the interests of the organization, members or creditors of the organization or persons having dealings with the organization, the Court shall, by order, declare accordingly and, where such a declaration is made, .... section 171F, .... does not apply and shall be deemed not to have applied, in relation to the act referred to in the declaration.

171G(2) (Application) The Court may make an order under sub-section (1) on the application of the organization, a member of the organization or any person having a sufficient interest in respect of the organization."

1. The expression "collective body" used in s.171F is defined in s.171A in the following terms:
   
   

"collective body" means -

(a) in relation to an organization - the committee of management or any conference, council, committee, panel or other body of or within the organization; and

(b) in relation to a branch of an organization - the committee of management or any conference, council, committee, panel or other body of or within the branch."

1. It is to be noted that the part of the Act which contains ss.171A, 171F and 171G was inserted in 1974 when the conditions of registration for unions set out in Regulation 115 of the Conciliation and Arbitration Act Regulations had been long established. Those conditions include a requirement that union rules provide for the election of (among other things) "any conference, council, panel or other body (additional to the committee of management), which is empowered to determine policy or to exercise functions of management in the association or branch".

2. The close similarity of wording contained in s.171A of the Act is noticeable and I believe that the effect of s.171F on a proper reading is almost certainly limited to elected bodies answering the description of a "collective body". It should not be extended - as is sought to be done in this application - to the decisions of a general meeting of a branch of an organization.

3. If I am right in this, the application would be largely misconceived. I say largely misconceived because I am inclined to the view that the act of the chairman of the meeting in declaring the appellant's office vacant, as he was bound to do after the vote of no confidence was passed, does fall within s.171F. Although he was in one sense the mere creature of the meeting, he held his position of chairman by virtue of his office as Branch President and he may therefore have been "purporting to exercise power conferred by or under the rules of the ... branch" within the meaning of s.171F(1)(a)(ii). On this view it was open to the appellant to challenge in these proceedings the validity of the steps which led up to the chairman's declaration that the appellant's office was vacant, and he was permitted to do so, but for the reasons given by the learned trial judge, which I adopt, that challenge fails.

4. I prefer not to decide finally the questions of statutory interpretation, to which I have just referred, in a case where one side is unrepresented and the other is taken by surprise. For the reasons I have given, the application is probably either wholly or largely misconceived, but it fails in any event on the merits as dealt with by the learned trial judge.

5. The only other point I wish to advert to is the proper approach to the test of "substantial injustice" referred to in s.171G of the Act. The Court is required to have regard to any substantial injustice which may be suffered by members of the organization concerned. I am prepared to assume for present purposes that substantial injustice to an individual member may fall within the meaning of the Act. But such injustice must be looked at in the context of the interests of the wider membership of the organization in order to determine whether the test of substantial injustice is satisfied. Further, the injustice referred to must relate to the foreclosure of the right to challenge an act as a result of the passage of time. The question in this case is not "Did an injustice occur to the appellant at the meeting?" but "Would it be unjust to prevent the appellant from challenging the proceedings of the meeting more than four years after it was held?" For the reasons given by the learned trial judge the appellant has, in my view, failed to satisfy this test.

6. The appeal should accordingly be dismissed.

JUDGE3

I would dismiss the appeal and I concur with the reasons already given.