Turner v Australasian Coal and Shale Employees' Federation

[1984] FCA 301

TURNER v. THE AUSTRALASIAN COAL AND SHALE EMPLOYEES' FEDERATION and ELCOM
COLLIERIES PTY. LTD. (1984) 6 FCR 177
Conciliation and Arbitration - Contract - Words and Phrases
9 IR 87

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Keely(1) and Gray(1) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organisation - Whether the applicant was entitled to be a member of the organisation pursuant to s 144(1) or s 144(3) of the Conciliation and Arbitration Act 1904 (Cth) either by virtue of his contract of employment or his qualifications and desires to be employed in the industry - Applicant not having actually commenced work - Whether the organisation's eligibility rules excluded the applicant pursuant to s 144(2) - Whether, in making orders pursuant to subss (5A) and (6) of s 144, the court should look at developments since the date of commencement of proceedings such as whether the applicant would have ceased to be a member of the organisation - Conciliation and Arbitration Act 1904 (Cth), ss 132(1)(b), 139(1) and (2), 144(1), 144(2), 144(3), 144(5), 144(5A), 144(6), 145(1)(a), 145(5) - Conciliation and Arbitration Regulations (1956), reg 115(1)(d)(viii) - Federal Court of Australia Act 1976 (Cth), s 27.

Contract - Employment contract - Whether contract subject to an implied term based on custom and practice in the coal and shale industry - Whether a repudiation of the employment contract by the employer being wrongful and not being accepted by the employee terminated the contract - Whether a court would make declarations as to the continued existence of the employment contract.

Words and Phrases - "In connexion with an industry" - Conciliation and Arbitration Act 1904 (Cth), s 144(1) - "Category of persons who are eligible for membership" - Conciliation and Arbitration Act 1904, s 144(2).

HEADNOTE

The applicant was offered employment as a junior trainee mineworker by the second respondent by letter dated 16 November 1982 which included a statement that it would be necessary for the applicant to contact the "Federation" with regard to his employment. In January 1983 the first respondent (the Federation), an organisation of employees under the Conciliation and Arbitration Act 1904 (the Act) refused to admit the applicant as one of its members. The applicant did not at any material time actually work as a coal miner or in connection with the coal and shale industry. The applicant applied to the Federal Court of Australia for an order that the Federation enrol him as one of its members and sought declarations that he was employed by the second respondent. Such orders and declarations were refused and the applicant appealed to the Full Court of the Federal Court of Australia.

Held: (per curiam) - (1) That an unconditional contract of employment had been entered into by the applicant and the second respondent on 16 November 1982, the court refusing to imply into the contract a condition that the contract was subject to the Federation giving its approval to the applicant as a member of the Federation; that the letter of 16 November 1982 did not contain any such condition; nor would the court imply such a condition even though it accepted that it was a well recognised custom and practice in the coal and shale industry that a person proposing to commence work be a member of the relevant union because in this case it was not shown that the applicant who was seeking employment in that industry for the first time would be familiar with and would have accepted such custom and practice.

(2) That the words "a person employed in connexion with an industry" as appearing in s 144(1) of the Act include a person employed in such industry and that the applicant, having entered into a contract of employment with the second respondent, was accordingly entitled to be admitted as a member of the Federation, all other aspects of s 144(1) having been satisfied. Even if no such contract existed, the applicant was entitled to be admitted as a member pursuant to s 144(3)(b) of the Act, as he was "qualified" and desired to become an employee within the meaning of that subsection.

Owens v. Australian Building and Construction Employees' and Builders' Labourers' Federation (1978) 46 FLR 16, referred to.

(3) That subs (2) of s 144 of the Act, which requires, inter alia, that an applicant fall within a category of eligible persons prescribed by the organisation's rules, did not exclude the applicant from membership because the words in the relevant eligibility rule of the Federation (Rule 2) "the Federation shall consist of an unlimited number of employees engaged in or in connexion with the coal and shale industry" included not just those persons actively engaged on work in that industry, but also those who had been engaged by an employer to serve in that industry, as was the position of the applicant here.

Benninga (Mitcham) Ltd. v. Bijstra (1946) 1 KB 58; Buntine v. Hume (1943) VLR 123; Re Bath (unreported, Federal Court of Australia, Northrop J., 4 March 1982); R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1921) 29 CLR 290, referred to.

(4) That s 139(1) and s 139(2) of the Act required, inter alia, as did earlier equivalent sections, the consent of the Industrial Registrar to any alteration to rules relating to eligibility for membership and required the Registrar to record the alteration in the register and upon the Certificate of Registration and accordingly, in determining which is the eligibility rule of an organisation for the purposes of s 144(2), the court should grant leave to a party to file further evidence from the files of the Registrar as to which eligibility rule has last been consented to by the Registrar, such rule (in this case being Rule 2) being the eligibility rule for the purpose of s 144(2); that a rule such as Rule 7 which stated that "all persons working in any capacity . . . connected with the industry . . . shall be eligible for membership . . .", being a rule in respect of which such consent had not been required, should not be called in aid in the construction of Rule 2.

Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia (1980) 49 FLR 355; Sims v. Australian Institute of Marine and Power Engineers (Sydney Branch) (1980) IAS, Current Review 576, referred to.

(5) That the words in s 144(2) "included in a category of persons who are . . . " refer to occupational categories and accordingly, an organisation can by its rules exclude a person who does not fall into one of the occupational categories specified in its rules. Had the eligibility rule in this case been Rule 7 and Rule 2, that rule would not have operated to exclude the operation of s 144(3) of the Act. Thus, a person "qualified" and desiring to be employed in the industry could become a member of the organisation even though he was not actually working in the industry.

(6) That the court has a discretion as to the terms of any order made under subs (5A) or under subs (6) of s 144 of the Act and accordingly, although the general rule is that an order of a court should speak as to the rights of the parties as they exist at the date of commencement of the proceedings (in this case 14 August 1983) as is the case of a declaration as to entitlement to membership under s 144(5), in the case of s 144(5A) and s 144(6) orders, regard should be had to the situation at the date when the court makes its order.

R. v. Dunphy; Ex parte Maynes (1978) 139 CLR 482, referred to.

Accordingly, in this case the court was prepared to examine the position as to whether or not the contract of employment was still on foot at the date of judgment and whether or not the applicant was still entitled to be a member of the organisation.

(7) That the second respondent had wrongfully repudiated the employment contract and that repudiation had not been accepted by the applicant; (semble) that the general rule that normally such a repudiation does not terminate the contract applies to employment contracts also, even though it is the service that earns the remuneration and even though the wrongful termination might mean that the wages or salary could not be earned by the employee and that accordingly the remedies open to the employee would be limited.

Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 CLR 435, considered.

George v. Mitchell & King (1943) 1 All ER 233; Thomas Marshall (Exports) Ltd. v. Guinle (1979) Ch 227; Hill v. C A Parsons & Co. Ltd. (1972) Ch 305; Gunton v. Richmond-Upon-Thames London Borough Council (1981) Ch 448, referred to.

Observations made on the modern employment contract and the varied reasons (apart from the seeking of remuneration) which either party might have in wishing to keep the contract alive and whether a court would always refuse to grant specific performance of such a contract and whether in the light of special circumstances , a declaration might be granted as to the continuing existence of such a contract.

Francis v. The Municipal Councillors of Kuala Lumpur (1962) 1 WLR 1411; Gordon v. State of Victoria (1981) VR 235; Baker v. Corporation of City of Salisbury (1982) 2 IR 168, referred to.

(8) That the matter of relief against the second respondent be remitted to the trial judge for determination and in particular to determine whether such special circumstances exist as to warrant the granting of a declaration as to the continued existence of the applicant's contract of employment.

(9) That on construction of the Federation's rules, the applicant remained a member of the Federation whether or not his employment contract had been brought to an end and that the appropriate order should accordingly require the Federation to treat him as a member and pursuant to s 144(6) of the Act the applicant becomes a member forthwith.

Troja v. Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340; Sims v. Australian Institute of Marine and Power Engineers (Victorian Branch) (1980) IAS, Current Review 575; Prichard v. Krantz (No 1) (unreported, Federal Court of Australia, Smithers, Northrop and Keely JJ., 21 October 1983); Pritchard v. Krantz (No 2) (1983) 6 IR 271; (1984) 8 IR 404, referred to.

HEARING

1984, June 18-19, September 26. #DATE 26:9:1984

APPEAL

Appeal from a decision of the Federal Court of Australia dismissing an application for declarations and orders pursuant to s 144 of the Conciliation and Arbitration Act 1904 (Cth).

M J Finnane QC and J G R McArthur, for the appellant.

The only document that the Industrial Registry has been able to produce in connection with the Constitution rule or the eligibility rule is the Certificate of Registration of the organisation showing registration on 15 August 1913 and annexing "Constitution Rules" setting out in full the first Constitution rule of 1913 and the Constitution rule which was introduced in 1916 being the present Rule 2. Rule 7 or its equivalent is not mentioned or set out in any of these documents. Accordingly since 1916 there had been only one validly authorised rule relating to eligibility for membership of the Federation, namely Rule 2. See R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1921) 29 CLR 290 and predecessors to s 139. Office copy of the Certificate of Registration with annexed Constitution rule dated 10 July 1984 and copy of the rules of the Federation as at 1916 as found in the State Library including present Rule 2, but not Rule 7 are produced to the court. It is utterly irrelevant to the granting of relief under s 144 whether the applicant has employment: Owens v. Australian Building and Construction Employees' and Builders' Labourers' Federation (1978) 46 FLR 16. Whatever might have been the private arrangement between the Federation and the employer, the applicant was eligible to be employed under the terms of the relevant Award, has maintained his desire to be employed and was until 19 August 1983 supported in his endeavour to be employed by the employer; the court's discretion to grant relief to the applicant should be exercised in his favour notwithstanding any failure on his part to obtain employment, since this has been due to the fact that the proceedings have been protracted due to the opposition of the respondents.

J W Shaw and P Greenwood, for the first respondent.

The Certificate of Registration does not refer to the eligibility rule - only the undated copy document annexed to the Certificate does so. In any event, neither document has any statutory force, nor can they assist the court in determining the eligibility rule. R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1921) 29 CLR 290 does not establish that the material furnished by the applicant indicates that Rule 2 must be the relevant eligibility rule. In the absence of definitive material to the contrary the appeal should be decided upon the material placed before the trial judge, constituting the common ground upon which the case was argued, namely that the eligibility rule comprised Rule 7 and Rule 2. Owens' case is to be distinguished from the present case in that it did not relate to an applicant who had never worked in the industry and it did not concern employment in a particular position with a particular employer who had indicated an unwillingness to employ the applicant. Further, the conclusion that the applicants in Owens' case were unemployable is not justified. The eligibility of a person to be employed under the terms of an award is only one of the many criteria that an employer may lawfully impose upon applicants for employment. The first respondent denies any suggestion that it has protracted the proceedings in any way.

Cur adv. vult

Solicitors for the appellant: Slade Manwaring & Co.

Solicitors for the first respondent: Turner Freeman.

Solicitors for the second respondent: Shaw McDonald & Partners.

GFV

JUDGE1

26 September 1984

THE COURT. On 15 August 1983, Paul Turner, as applicant, commenced proceedings in the Federal Court of Australia under s 144 of the Conciliation and Arbitration Act 1904 (Cth) (the Act). As against the Australasian Coal and Shale Employees Federation (the Federation), an organisation of employees under the Act, Turner sought a declaration that he was a person who was qualified to be an employee in the industry for which the Federation is constituted and an order that the Federation take all steps and do all things necessary to enrol him as a member of the Federation. Pursuant to leave to amend granted on 16 September 1983, Turner also sought declarations against Elcom Collieries Pty. Ltd. (Elcom), that at 15 August 1983 he was employed by Elcom within the meaning of s 144 of the Act, and that at the date of judgment being given he was an employee of Elcom within the meaning of s 144 of the Act. With the consent of all parties, the application was heard at the same time as a similar application brought by one Kennedy against the Federation and Elcom. At the hearing, Turner and Kennedy were represented by different counsel but all counsel agreed that the same issues arose in each case and that the result in Turner's case would follow the result in Kennedy's case. On 21 December 1983, the Federal Court, by order, dismissed the application by Kennedy and published its written reasons for so doing. Kennedy has not appealed from that order. Immediately after giving its judgment in Kennedy's case, the court announced:

"In the matter of Turner, the proceedings are proceedings for the same relief on essentially the same facts, and for the same reasons I make in that matter the same orders."

As a result, Turner's application was dismissed. Turner appeals from the orders dismissing his application.

1. The facts in Turner's case are materially different from the facts in Kennedy's case. In Turner's case, the following statement of agreed facts was tendered, but for the purpose of clarity, the terminology used in these reasons is substituted:
   
   1. On 16 November 1982 Elcom offered employment as a junior trainee mineworker to Turner at the Wyee State Coal Mine and required him to commence work on 26 January 1983 and to contact the secretary of the Northern Miners' Federation in respect of his employment.
   2. On 30 November 1982 Turner passed a medical examination required of him by Elcom as a condition of his taking up employment.
   3. In January 1983 Turner applied to the Federation for membership.
   4. The Federation has not admitted Turner to membership.
   5. Turner has not, at any material time, actually worked as a miner in a coal mine or in connection with the coal and shale industry.
   6. It is a well-recognised custom and practice in the coal and shale industry that in order to commence work in the industry it is necessary for the person proposing to commence work to be a member of the union covering his/her calling.
   7. On 19 August 1983 Elcom purported to withdraw what is described as an offer of employment.

2. Although par 1 of the statement of agreed facts states that Elcom offered employment to Turner, its letter to him dated 16 November 1982 contained the following paragraph:
   
   

"I wish to advise that your application for the position of Junior Trainee Mine Worker at Wyee State Coal Mine has been successful subject to your passing a Joint Coal Board Medical Examination."

From this, it appears that Turner had applied to Elcom for employment. The letter of 16 November 1982 contained the following paragraph also:

"It will also be necessary for you to contact Mr K Fogg, Secretary, Northern Miners' Federation regarding your employment at Wyee State Coal Mine."

The reference to the Northern Miners' Federation has been treated as a reference to the relevant local division of the Federation.

1. Turner contended that a binding contract of employment existed as a result of Elcom's letter of 16 November 1982. The learned trial judge found that a binding contract existed in relation to Kennedy. His Honour found that Kennedy's contract contained a condition, held to be a condition precedent to the performance of the contract, because of a paragraph in a letter dated 23 November 1982, written by Elcom, offering employment to Kennedy. That paragraph was as follows:
   
   

"It is necessary for you to receive a clearance from Mr K Fogg, Secretary of the Northern District Miners' Federation before you may commence employment at this mine."

1. The Federation did not contest that a contract existed whereby Elcom agreed to employ Turner.

2. It was argued on behalf of the Federation that Turner's case was the same as that of Kennedy, that is that any contract was subject to a condition precedent to its performance. This condition was expressed in the alternative as a condition that Turner become a member of the Federation, or that he receive a "clearance" from Mr Fogg as representing the Federation. Counsel for the Federation adopted the conclusions of the learned trial judge in the Kennedy case to the effect that the condition had not been fulfilled, either by the refusal of the Federation to admit Turner to membership, or because a reasonable time had elapsed before the commencement of the proceedings without the condition having been fulfilled. It followed from this, so the argument went, that the contract was brought to an end by failure of the condition. The learned trial judge did not construe the condition which he found to exist in Kennedy's case as requiring Kennedy actually to be admitted to membership of the Federation before being entitled to employment with Elcom. His Honour was content to refer to the condition as requiring a "clearance". Counsel for the Federation had some difficulty in construing any reference to a "clearance" as involving a requirement of admission to membership. No reference to a "clearance" in this sense appears in the rules of the Federation and there is no evidence of any practice of the Federation in granting clearances to non-members or prospective members. Counsel for the Federation was forced to rest his contention upon the assumption that a clearance involves, at the least, an indication that the Federation would accept Turner as a member. No sound reason was shown, however, why the court should accept this assumption. Even more difficult for counsel was the proposition that it was a condition of Turner's contract that he receive a clearance from the Federation.

1. The differences in wording between the letter to Kennedy and the letter to Turner are obvious. The letters were written by different persons on behalf of Elcom. The letter to Turner does not mention the word "clearance". It merely requires that Turner contact Mr Fogg regarding his employment. Counsel for the Federation was forced to argue that usage in the industry attached to this requirement an obligation to achieve membership of, or a clearance from, the Federation. Reliance was placed upon the well-recognised custom and practice in the industry that, in order to commence work in the industry, it is necessary for the person proposing to commence work to be a member of the union covering his or her calling. The difficulty about attaching a trade or industry usage to a term in a contract in the context of this case is that it is not shown that both parties are involved in the trade or industry concerned, and that each would be familiar with and accept the usage. Indeed, Turner was seeking employment in the coal and shale industry for the first time. There is no evidence to suggest that he was familiar with the custom and practice alleged. For these reasons, it is not possible to construe anything in the letter of 16 November 1982 from Elcom to Turner as containing any condition that Turner be admitted to membership of or receive a clearance from the Federation before entering into employment. It follows that a contract of employment existed between Turner and Elcom on 15 August 1983, being the date Turner's application was issued.

2. The relevant provisions of s 144 of the Act are set out:
   
   

"144. (1) A person employed in connexion with an industry, or engaged in an industrial pursuit, is, unless he is of general bad character, entitled, subject to payment of any amount properly payable in respect of membership, to be admitted as a member of an organization (being an organization of employees in or in connexion with that industry or of employees engaged in that industrial pursuit) and to remain a member so long as he complies with the rules of the organization.

(2) Sub-section (1) does not entitle a person to be admitted as a member or an organization unless he is included in a category of persons who are eligible for membership of the organization under the rules of the organization, or to remain a member if he ceases to be so included and the rules do not permit him to remain a member.

(2A) Subject to sub-section (2), sub-section (1) has effect notwithstanding the rules of the organization except to the extent that it expressly requires compliance with those rules.

(3) For the purposes of this section -

(a) a person whose usual occupation is that of employee in an industry or engagement in an industrial pursuit; or

(b) a person who is qualified to be an employee in an industry or to engage in an industrial pursuit and desires to become such an employee or so to engage,

shall be deemed to be employed in that industry or to be engaged in that industrial pursuit.

. . .

(5) Where a question or dispute arises as to the entitlement under this section of a person to be admitted as, or to remain, a member of an organization, that person, a person who is or desires to become the employer of that person the organization or the Bureau may apply to the Court for a declaration as to the entitlement of that first-mentioned person under this section.

(5A) Subject to sub-section (7), the court has jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules of the organization concerned, make such order to give effect to its determination as it thinks fit.

(6) The orders which the Court may make under the last preceding sub-section include an order requiring the organization concerned to treat a person to whom sub-section (1) applies as being a member of the organization and, upon the making of such an order, or as otherwise specified in the order, the person specified in the order becomes, by force of this Act, a member of the organization.

(7) Where an application is made to the court under this section -

(a) if the application is made otherwise than by a person whose entitlement is in question - that person shall be given an opportunity of being heard by the Court; and

(b) if the application is made otherwise than by an organization - the organization concerned shall be given an opportunity of being heard by the Court."

1. The use of the phrase "in connexion with" where it first appears in subs (1) is curious. In s 132(1)(b), which relates to the registration of organisations, reference is made to associations of employees "in or in connexion with any industry". In s 144(1) itself, reference is made to "an organization of employees in or in connexion with that industry". There is no apparent reason for the omission of the words "in or" before the words "in connexion with" where those words first appear in subs (1). The mystery is not clarified by an examination of subs (3). That subsection uses the phrase "in an industry" twice and the phrase "in that industry". In other words, subs (3) deems certain persons to be employed "in" an industry for the purposes of the section; the operative provision of the section is in subs (1), which deals with persons employed "in connexion with" an industry. It is quite clear that, unless the words "in connexion with", where first used in subs (1), embrace "in", the deeming provision in subs (3) would be meaningless. This leads to the conclusion that a person employed in an industry is entitled to rely on subs (1).

2. In the present case, no issue arises of bad character or payment of any amount in respect of membership. It is also common ground that the Federation is an organisation of employees in or in connection with the relevant industry; it is registered in or in connection with the coal and shale industry.

3. When Turner lodged his application in the Federal Court on 15 August 1983, the existence of the contract between him and Elcom made him a person employed in connection with a coal mining industry. Even if no contract existed, Turner plainly desired to become an employee in that industry. He was qualified to be an employee in the coal mining industry in the sense in which the word "qualified" was construed by the Full Court in Owens v. Australian Building and Construction Employees' and Builders' Labourers' Federation (1978) 46 FLR 16 at 33, where the Full Court said in relation to the building industry:
   
   

"We are of opinion that a person is 'qualified' to be an employee in a particular industry or to engage in an industrial pursuit within the meaning of s 144(3) if he has the necessary skills or qualifications required to work in that industry or section of an industry. In the building industry builders' labourers carry out various duties ranging from unskilled labour requiring physical capacity only to semi-skilled labour generally acquired by experience. Physical capacity in many cases would be the only consideration in determining whether a person is qualified to engage in this industry as a builders' labourer."

The learned trial judge found that Kennedy was qualified in this sense, and that finding, as applicable to Turner, was not challenged on this appeal.

1. Counsel for the Federation argued that Turner was excluded from entitlement under s 144 by reason of subs (2). He contended that the category of persons who are eligible for membership of the Federation under its rules is restricted to those persons actually working in the industry. At the trial, counsel for the parties agreed that the eligibility rules of the Federation were Rule 2 and the opening words of Rule 7. The learned trial judge acted on that agreement. Those rules provide as follows:
   
   

"CONSTITUTION

2. The Federation shall consist of an unlimited number of employees engaged in or in connection with the Coal and Shale Industry together with such other persons, whether employees in the industry or not, as have been appointed officers of the Federation and admitted as members thereof.

. . .

WHO MAY BE MEMBERS

7. All persons working in any capacity or doing any work connected with any section of the Coal or Shale Mining Industry shall be eligible for membership of the Federation."

Rule 7 goes on, in a number of separately lettered paragraphs, to deal with such things as procedures for becoming a member, the obligations of members to pay moneys and discontinuance of membership.

1. At the trial, there was no contest as to what was the eligibility rule of the Federation. On appeal, the court raised the question of what was the eligibility rule, and whether a rule requiring the consent of the Industrial Registrar under what are now s 139(1) and (2) of the Act can be construed by reference to a rule to which such consent is not required: see Cooperative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia (1980) 49 FLR 355 at 361, and Sims v. Australian Institute of Marine and Power Engineers (Sydney Branch) (1980) IAS Current Review 576 at 579. Pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), the court gave leave for further evidence to be tendered for the purpose of assisting in the determining of what was the eligibility rule of the Federation. Documents tendered from the file of the Industrial Registrar pursuant to that leave indicate that Rule 2 is to be regarded as the eligibility rule. In accordance with the authorities referred to above, that rule should be construed without reference to Rule 7.

2. The Federation contended that the word "engaged" in Rule 2 meant "actually working". Reliance was placed upon a passage in the judgment of MacKinnon L.J. in Benninga (Mitcham), Ltd. v. Bijstra (1946) 1 KB 58, at 62, where his Lordship said:
   
   

"The word 'engaged' is deplorably ambiguous. An employer 'engages' a servant when he makes an agreement with him for his services. A workman is 'engaged' on work when he is actually carrying it out. In fact, 'engage' of a master has an entirely different meaning to 'engaged in' of a workman."

In that case, the Court of Appeal was construing the words "some person engaged in his whole-time employment" in a statutory provision dealing with the right of a landlord to give notice to quit. The court reached the conclusion that the words 'engaged in' in that provision referred to the carrying out of actual work by an employee. See also Buntine v. Hume (1943) VLR 123 per O'Bryan J. at 127-128, and Re Bath (unreported, Federal Court of Australia, constituted by Northrop J., 4 March 1982).

1. Counsel submitted also that, because of the presence of the word "employees" in Rule 2, the word "engaged" would be redundant if it referred to engagement by the employer. To speak of an "employee engaged" is tautologous if the word "engaged" is intended to convey that the person concerned is a party to a contract of employment and no more; the word "employee" already sufficiently indicates that. This argument might have force in other contexts, but in the context of the rules of an organisation registered under the Act, it loses much of its force. In order to be registered as an organisation, an association must be either an association of employers or an association of employees: see s 132. The use of the word "employees" in Rule 2 of the Federation's rules is an indication that the first respondent is an organisation of employees. If the reference to the industry in Rule 2 was a reference to an occupation of employees, there might also be more force in the argument that a person could not be "engaged" in such an occupation without actually working at it. It is clear that in Rule 2, the reference to "the coal and shale industry" is a reference to the trade or business of employers, and not a reference to the occupation of employees. This is supported by the opinions expressed in R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1921) 29 CLR 290 at 297. On its proper construction, therefore, Rule 2 refers to employees who are engaged by employers which operate in or in connection with the coal and shale industry. There is no difficulty in construing the words "engaged" in that context as meaning engaged to serve, as distinct from actually serving.

2. On this view, at all times between the making of the contract between Turner and Elcom and 19 August 1983, when Elcom purported to terminate the contract, Turner was entitled to be admitted as a member of the Federation.

3. Even if the construction of Rule 2 set out above is incorrect, Turner was entitled to be admitted as a member of the Federation by virtue of s 144(3). Counsel for the Federation argued that, under s 132(1)(b) of the Act, it is open to an organisation to elect whether to be an association, the rules of which include or exclude persons qualified to be employed in a particular industry, as well as those actually so employed. He argued that the Federation has adopted a rule excluding persons who are merely qualified and desiring to be employed. It followed, so he said, that the "category of persons who are eligible for membership" of this organisation consists only of persons actually employed. The argument involved reference to the second reading speech of the Bill which became Act No 138 of 1973, by which subs (2) of s 144 was inserted. It also involved reading subs (3) as subordinate to subs (2).

4. This argument seems to run counter to the scheme of s 144, which is legislation designed to enable a person qualified and desiring to be employed in a particular industry to become a member of the relevant organisation in that industry. If all that was intended by subs (2) was to pick up the organisation's eligibility rules, even if they excluded persons who would otherwise be the subject of subs (3), there would have been no need for the insertion of the words "included in a category of persons who are" in subs (2). These words are intended to refer to occupational categories. The relevant test is whether, if the person concerned was employed, he or she would fall within a category in the eligibility rules of the organisation. Subsection (2) was intended to do no more than to exclude the possibility that a person might be entitled to admission to membership of an organisation which was registered in or in connection with the industry in which that person was employed or deemed to be employed, even though the rules of the organisation contained no category into which that person's occupation or deemed occupation would fall. The fact that Rule 2 of the Federation's rules contains no occupational categories, or contains only one all-embracing occupational category, cannot be relied upon to frustrate the operation of subs (3).

5. It is worth noting that, on this view of subs (3), the appellant would have been entitled to be admitted as a member of the Federation before 19 August 1983, even if Rule 7 were part of the eligibility rules or capable of being used as an aid in the construction of Rule 2.

6. For the foregoing reasons, at the date when he lodged his application, namely 15 August 1983, Turner would have been entitled to the declaration contemplated by s 144(5) of the Act. In Owen's case, supra, at pages 25-26, the Full Court held that the making of such a declaration is not a matter of the discretion of the court. Where the entitlement to be admitted to membership of an organisation under s 144 is established, the court is bound to grant a declaration. A discretion does arise, however, as to the form of any order which might be made under subss (5A) or (6). These provisions contemplate orders giving effect to the determination of the court as to the entitlement of a person, and in particular an order requiring the organisation concerned to treat a person entitled as a member, either from the date of the order, or from some other time.

7. The Full Court in the Owens' case did not, however, deal with the question whether orders under s 144 are made in respect of the rights of the parties as they existed at the date when the proceedings were commenced, or in respect of those rights as they exist at the date of judgment. In R. v. Dunphy; Ex parte Maynes (1978) 139 CLR 482 at 495, Mason J. (with whom Barwick C.J., Stephen and Aickin JJ. expressed agreement) said:
   
   

"In general the order of a court speaks as to the rights of the parties as at the commencement of the proceedings in which the order is made. But there are strong reasons why declarations made under s 140 should be held to stand in a different position. The section empowers the court to make an order that a rule contravenes s 140(1) or that the rules so contravene in a specified respect. In each instance the order manifests the existence of a contravention; in one case the rule or part of it is deemed void and in the other case, though the rule is not deemed to be void, a procedure is prescribed with a view to the taking of remedial action. The court's judgment decides whether there is an existing compliance with the statutory requirements and in the event of non-compliance certain consequences attach and they will ultimately result in compliance with the statutory requirements. In this context, despite the contrary view of Windeyer J. expressed in Shearer's case ((1960) 103 CLR 368 at 389), it is my opinion that the court's order in accordance with s 140(2) and (3) speaks as to the rules as at the date of the order. An order should not be made by the court unless it is satisfied that the relevant contravention exists at the date of the order. It is from then that a rule declared to contravene s 140(1) is deemed to be void and it is from then that time runs under s 140(7)."

1. The aspects of s 140 to which Mason J. referred do not exist in s 144. In the absence of such aspects, or any other indication to the contrary, the general rule should apply, namely that a declaration as to entitlement should be made on the basis of the rights of the parties as they existed at the date of commencement of the proceedings. Subsections (5A) and (6) indicate, however, that the orders which the court makes to give effect to its determination are intended to be flexible. This suggests that regard should be had to the situation which exists at the date when the court comes to make its order. If, between the date of commencement of proceedings and the date of judgment, an applicant has ceased to be employed and no longer desires to be employed, or has ceased to be qualified to be employed, grounds may exist for a refusal to make any order other than a declaration of entitlement as at the commencement of proceedings. For instance, an applicant may have suffered an injury rendering him or her unfit permanently to undertake employment of the kind originally desired, or may have found more attractive permanent employment in another field. The purpose of s 144 does not go to the extent of forcing organisations to take as members persons who, at the date of judgment, fall wholly outside the purview of the section.

2. It is therefore necessary to look at developments after 14 August 1983, for the purpose of determining whether any and if so what orders should be made consequential upon the declaration of entitlement to membership as at that date. By letter dated 19 August 1983, Elcom wrote to Turner in the following terms:
   
   

"Reference is made to the Company's letter 16 November 1982 offering you a position as a Junior Trainee Mineworker at Wyee State Coal Mine.

As you would be aware, there has been a downturn in economic and industrial activity which has contributed to a decline in electricity demand. Actually, electricity generation in 1982 was 2 per cent less than in 1981, and in 1983 load growth has not returned as electricity generation is about equal to 1982 levels.

As a result of the decline most of the mining developments contemplated a year or so ago have been deferred for some years. In addition, power station coal stockpiles have grown considerably to a level equivalent to about six months consumption. In fact, some power stations have nearly a year's supply.

Consequently the Electricity Commission has found it necessary to reduce overall coal deliveries to help control electricity cost increases and revised power station consumption needs.

For these reasons, the Company has been reducing its workforce by natural attrition in recent months. This attrition policy is planned to continue whilst stockpiles remain at high levels. As can be seen, the Company is not currently planning to employ any mineworkers not presently working for the Company.

In all the circumstances, the Company regrets to advise you that the offer of employment is withdrawn."

Although this letter purports to withdraw an offer of employment, in the circumstances it must be construed as an indication that Elcom no longer intended to be bound by the contract of employment into which it had entered with Turner. In these circumstances, counsel for the Federation argued that this letter brought to an end any contract of employment with the result that Turner could not be regarded as a person employed in the relevant industry for the purposes of s 144(1). Counsel for Turner contended that, as is the case with any other contract, neither party to a contract of employment can terminate the contract by unilateral wrongful act. He sought to persuade the court that Turner's contract of employment contained a condition that his employment would be kept open until such time as he had exhausted all his legal remedies with respect to membership of the Federation. There was evidence before the learned trial judge that an express promise had been made to Kennedy to keep open his employment opportunity with Elcom until such time as he had exhausted his remedies. No such express promise had been made to Turner. Counsel sought to rely upon hearsay evidence in affidavits of Turner and his father. These affidavits were reiled upon at the trial, apparently without objection. Even when looked at, they do not go so far as to support the proposition that Elcom bound itself in the manner suggested. Indeed, the suggestion was that the position offered to Turner was not open to him beyond his nineteenth birthday, which has now passed.

1. Clause 5(c) of the Coal Mining Industry (Miners) Award, 1982, New South Wales, which award binds Elcom in respect of the employment of Turner, provides that employment shall be terminated by a week's notice on either side or by the payment or forfeiture of a week's wages. Elcom's letter of 19 August 1983 did not purport to give such notice, and Turner was not paid any wages in lieu of notice. It therefore appears that the termination of Turner's contract of employment by Elcom was wrongful, being without proper notice. It is also clear that, by its letter of 19 August 1983, Elcom repudiated the contract of employment. The issue is whether this repudiation brought about the termination of the contract.

2. On this issue, both sides sought to gain support from the judgments in Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 CLR 435. Those judgments are difficult to interpret. The difficulty arises largely from the unusual facts of the case. Mr Watson was appointed and served for some years as general manager of two companies, one being Automatic Fire Sprinklers Pty. Ltd. He was demoted to the position of New South Wales manager of that company, whilst continuing as general manager of the other company. The two companies apparently shared offices. By his contract of employment, Mr Watson was entitled to three months notice of termination of that contract. In addition, the National Security (Man Power) Regulations prohibited the termination of the employment of Mr Watson unless the Director-General of Man Power or some persons authorised by him gave written permission for such termination. No such notice was given, and no such permission was obtained. Mr Watson did not accept that his employment was terminated. He continued to attend his place of work and, apparently, carried out some of the duties of general manager of both companies.

3. The matter came before the Supreme Court of New South Wales, upon a special case stated by an arbitrator, and thence on appeal to the High Court of Australia. This special case asked the question whether the purported dismissal of Mr Watson was ineffectual in law to terminate his employment as general manager by reason of (a) the Regulations, or (b) Mr Watson's non-acceptance of the purported dismissal as termination of his employment. Rich, Dixon and McTiernan JJ. answered only part (a) of this question, and each answered it in the affirmative. Williams J. also answered part (a) in the affirmative, but he expressed the view that part (b) should be answered in the negative. As the passage in his judgment at pp 476 and 477 indicates, however, Williams J. took the view that the employer cannot discharge the contract of employment by a unilateral breach. His Honour took the view that part (b) of the question really asked whether Mr Watson would have been entitled at common law to his remuneration as general manager after the purported dismissal. His Honour should, therefore, be regarded as taking the view expressed by him that unilateral breach did not bring about the automatic discharge of the contract of employment.

4. Latham C.J. and Starke J. answered both parts of the question in the negative. Starke J. clearly took the view that Mr Watson's contract of employment as general manager was terminated, despite his non-acceptance of the termination. His Honour did not, however, discuss the question at any length. By contrast, Latham C.J. embarked on a lengthy discussion. In a passage at pp 450-453, his Honour accepted the existence of the general rule that a repudiation by one party to a contract does not terminate that contract unless the other party elects to accept the repudiation as bringing the contract to an end. His Honour also held that, generally, the rule is that the consideration for wages is the actual performance of work. Some difficulty appears to have arisen in his Honour's mind in reconciling these two propositions. At pp 450-451, his Honour said:
   
   

"But if a dismissed servant, as in the present case, does not accept his dismissal as a breach entitling him to regard the contract as discharged, he cannot ignore the wrongful dismissal and claim still to be the servant of his employer with the rights of a servant. The dismissal, though wrongful, is not a nullity . . . . Thus the wrongful dismissal determines the relationship of master and servant created by the contract, even though the servant may not have accepted his dismissal as entitling him to regard the contract as discharged. Any other view would in effect grant specific performance of a contract of personal service, a remedy which the courts have always refused in such a case (see Lucy v. The Commonwealth ((1923) 33 CLR 229, at 237), per Knox C.J.)."

This passage tends to indicate his Honour's view that unilateral termination of a contract of employment was possible, a view which is consistent with his Honour's answer to part (b) of the question posed by the arbitrator. In contrast is another passage at pp 456-457:

"I agree that the contract cannot be terminated by a wrongful unilateral act . . . .

. . . one party to a contract cannot by a wrongful unilateral act bring the contract to an end. If an employer wrongfully dismisses a servant he breaks, but does not terminate, the contract . . . ."

This latter passage occurs in the discussion by Lathma C.J. of the effect of National Security (Man Power) Regulations, and in particular in the course of his Honour's attempts to distinguish the decision of the Court of Appeal in George v. Mitchell & King (1943) 1 All ER 233, a decision followed by the majority in Watson's case. Although apparently inconsistent with what Latham C.J. said earlier in his judgment, this passage cannot be accepted as support for the view that unilateral termination of a contract of employment is always impossible.

1. Dixon J. (as he then was) seemed to be prepared to accept that termination could not occur without acceptance by the wronged party of the other party's repudiation. At pp 465-466, his Honour said:
   
   

"The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from the service means that wages or salary cannot be earned however ready and willing the employee may be to serve and however much he stand by his contract and decline to treat it as discharged by breach . . . . His only remedy is in unliquidated damages for wrongful dismissal. By keeping his contract open, he may be able to resume his service without a new contract, if his employer is induced to retract the discharge."

Of the six justices who delivered judgments in Watson's case, therefore, two appear to have regarded unilateral termination of a contract of employment as possible, two appear to have rejected it, and the other two did not deal with the question. It may be concluded that Watson's case does not stand as authority preventing this Court from holding that unilateral termination of a contract of employment is impossible.

1. Subsequent authorities in England lead to the view that contracts of employment are to be treated in the same way as other contracts in that they cannot be terminated by the unilateral wrongful act of one party, without acceptance of the repudiation of the other party. In Thomas Marshall (Exports) Ltd. v. Guinle (1979) Ch 227, Megarry V-C held that, although trading on his own account in breach of his contract of employment was a repudiation of the contract by a managing director, the contract itself was not discharged and the managing director was bound by those terms of it which restrained him from so trading and from using information acquired in the course of his employment. In Hill v. C A Parsons & Co. Ltd. (1972) Ch 305, the Court of Appeal granted an injunction restraining an employer from treating an invalid notice of termination as having terminated the service of an engineer. In Gunton v. Richmond-Upon-Thames London Borough Council (1981) Ch 448, the Court of Appeal considered the case of a college registrar dismissed in breach of disciplinary procedures incorporated into his contract of employment. At pp 459-460, Shaw L.J. held that, although there is no logical justification for the proposition that a contract of employment survives a total repudiation by one side, the remedies available to an employee were limited, and that accordingly contracts of employment differed from other contracts. At pp 468-469, Buckley L.J. rejected the unilateral termination doctrine, although recognising that the remedies available to a dismissed employee were limited. Brightman L.J. at pp 474-475 took a similar view.

2. An examination of the authorities indicates that the courts have referred to a number of features of contracts of employment as making them unique, or at least different from most other contracts. An examination of these factors indicates that they do not constitute any barrier to the treating of contracts of employment in accordance with general principles so far as termination as a result of repudiation by one party is concerned.

3. In some cases, little point has been seen in allowing the contract to continue on foot after its repudiation by one party. Where the consideration for the payment of wages is the performance of work, and the employee is unwilling to perform or the employer refuses to permit the performance of work, no claim for wages can be brought. The view has been taken, therefore, that only a claim for damages is possible, the damages only being equivalent to wages which would have been paid or forfeited in lieu of the notice required for termination. In these days, however, there may be many reasons other than the seeking of remuneration why either party may wish to keep a contract of employment alive. From the employer's point of view, there may be a desire to restrain the employee from accepting employment which would be in breach of a restraint of trade clause, or from acting contrary to some term of the contract which restricts the employee in his or her activities after the end of the employment. From the employee's point of view, there may be entitlements to annual leave or long service leave or superannuation which depend upon the continuance of employment. As Dixon J. said in Watson's case, the employer may be persuaded to take back the employee, in which case the period of employment will be unbroken. An example of a case in which the preservation of the contract of employment was regarded as desirable is Hill v. C A Parsons & Co. Ltd, supra. In that case, the giving of proper notice would have resulted in statutory protection for the employee under an Act of Parliament which was proclaimed to come into operation on a date before the expiration of such notice. A court can no longer be concerned simply with the question of whether a wrongfully dismissed employee can recover wages or only damages.

4. Another feature of contracts of employment which has caused concern in some of the authorities is the suggested rule that specific performance of a contract of employment can never be granted. This supposed rule is based upon two considerations. First, it is said that a repudiation of the contract by one party destroys the mutual confidence which must exist between employer and employee, and equity will not compel the parties to continue in an employment relationship where such confidence is absent. Secondly, it is argued that to compel the existence of an employment relationship would be to require the court to supervise the conduct of both parties to that relationship on a continuing basis. It may be seen that the first of these considerations has lost a good deal of its relevance in present society. It is difficult to say that a relationship of mutual confidence must exist in the case of every person employed by a large corporate enterprise. There are many occupations in such enterprises where the precise identity of the employee performing a particular job is immaterial to the collective management of the corporation. There are some cases in which dismissal occurs but the mutual confidence of employer and employee survives; Hill v. C A Parsons & Co. Ltd, supra, was an example of this type of case. The dismissal of the engineer in that case resulted purely from his refusal to join a trade union which had a "closed shop" agreement with his employers. As to the second ground, the problem of continuing supervision by the court is not one confined to contracts of employment. There are situations in which, in the exercise of its discretion to refuse an equitable remedy, a court will decline to grant specific performance which would involve constant recourse to the court by the parties and determinations by the court of the rights and wrongs of a multiplicity of obligations in the contract. Such cases are, however, matters of discretion, and not matters of hard and fast rule that specific performance cannot be granted. Contracts of employment should now be viewed in the same light.

5. In addition, to say that specific performance of a contract of employment is to be granted is not to say that a court will decree that an employee can never leave the employment, or be dismissed by the employer. Courts of equity have always been capable of tailoring their remedies to suit the circumstances of an individual case. Again, Hill v. C A Parsons & Co. Ltd, supra, provides the example. All that was necessary was to restrain by injunction the employer from relying upon a particular notice of termination. If the employer then wished to terminate the contract of employment, it could do so by giving proper notice. Proper notice would, of course, have provided the employee with statutory remedies. There have been suggestions in some cases that, where special circumstances exist, a declaration might be granted as to the continuing existence of a contract of employment; see Francis v. The Municipal Councillors of Kuala Lumpur (1962) 1 WLR 1411 at 1417-1418, and Gordon v. State of Victoria (1981) VR 235 at 239. Cases where continuing obligations and rights are in question might give rise to such special circumstances. It is possible to envisage situations in which the desire to acquire, or to continue membership of an organisation may constitute special circumstances. What is clear is that the courts will no longer set their faces against granting the remedies of declaration and injunction with respect to contracts of employment. An interlocutory injunction was granted by Mitchell J. in Baker v. Corporation of City of Salisbury (1982) 2 IR 168.

6. In the present case, Turner sought against Elcom a declaration as to the continued existence of his contract of employment. In the course of the hearing of the appeal, the court was asked by counsel for Turner, and by the solicitor who appeared for Elcom, to remit the matter to the learned trial judge in so far as relief against Elcom was concerned. Because no determination has been made as to whether special circumstances exist which would justify the granting of such a declaration, the court should remit the matters.

7. As is apparent from these reasons, the court should make a declaration under s 144(5) of the Act that on 15 August 1983, Turner was entitled to be admitted as a member of the Federation. In fact he was entitled to be so admitted from at least 26 January 1983, being the date he was required to commence work at the Wyee State Coal Mine. Wrongfully, the Federation refused to admit him as a member and as a result Turner was not able to commence his work as an employee under his contract with Elcom. The court should remit to the Federal Court of Australia, constituted by a single judge, the question of what relief, if any, should be granted against Elcom. There remains for consideration, however, what orders, if any, the court should make under s 144(5A) and (6) of the Act.

8. If Turner had been admitted as a member of the Federation on 26 January 1983, he would have been entitled to remain a member until his membership was terminated in accordance with the rules of the Federation. Normally, a person who is admitted to membership of an organisation remains a member until he or she dies or until the member or the organisation terminates that membership in accordance with the rules of the organisation. Section 145 of the Act contains provisions relating to the right of a member to resign his membership of an organisation. Under reg 115(d)(viii) of the Conciliation and Arbitration Regulations (1956), the rules of an organisation must provide for the times when, and the terms on which, persons shall become or cease to be members. It has been held that a member of an organisation of employees registered in or in connection with an industry, who ceases to be employed in or in connection with that industry, does not thereby cease to be a member of the organisation unless some provision in the rules of the organisation produces that result. See Troja v. Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340, at 346-348 per Keely J., with whom J B Sweeney and Deane JJ. agreed on this point, Sims v. Australian Institute of Marine and Power Engineers (Victorian Branch) (1980) IAS, Current Review 575, and Prichard v. Krantz (No 1) (unreported, Federal Court of Australia, Smithers, Northrop and Keely JJ., 21 October 1983). Accordingly, in the present case it becomes necessary to determine whether, on the assumption that Turner had been admitted to membership of the Federation in January 1983, or on 15 August 1983, and even if it is also assumed that his contract of employment with Elcom has been terminated, there is anything in the Rules of the Federation which would prevent him remaining a member of the Federation after the termination of his employment.

1. Rule 7 of the Rules of the Federation is headed "WHO MAY BE MEMBERS" and comprises an unlettered paragraph and then seven paragraphs lettered (a) to (g) inclusive. The unlettered paragraph has been set out earlier in these reasons, but for the sake of convenience is set out again:
   
   

"WHO MAY BE MEMBERS

7. All persons working in any capacity or doing any work connected with any section of the Coal or Shale Mining Industry shall be eligible for membership of the Federation."

Paragraphs (a), (b) and (c) prescribe procedures by which persons apply for membership of the Federation and procedures by which they may be admitted as members. Those paragraphs need not be set out. Paragraphs (d) to (g) are set out:

"(d) Every member shall pay such fines, fees, levies and dues as may be prescribed by the rules for the time being of the Federation, or which from time to time may be imposed by the Central Council or Central Executive.

(e) No member shall discontinue his membership without giving three months' notice in writing to the Secretary of the Lodge of his intention to do so, and paying all membership subscriptions, fines, fees, levies and dues owing by him to the Federation up to the expiration of such three months.

(f) All subscriptions, fines, fees, levies or dues owing by him to the Federation, may be paid by any member to any of the authorised collectors, or to the Secretary of the Lodge to which the member is attached, but to no other person or member.

(g) Any member owing two fortnight's contributions, fines, fees, levies or dues, shall be considered unfinancial, and shall lose all privileges of membership and shall be liable to be sued for such arrears without notice."

1. In passing, it is noted that par (e) may contravene the provisions of s 145(1)(a) and (5) of the Act. It is noted also that none of the paragraphs provides that a member shall cease to be a member if he ceases working in any capacity or doing work connected with any section of the coal and shale mining industry. The absence of such provision may be of importance at a time when members are being retrenched. Likewise, as appears later, none of the provisions of the Rules of the Federation enable the Federation to remove a member from membership of the Federation. Paragraph (g) provides that a member may be considered unfinancial and may lose his privileges of membership, but such a person remains a member and continues to be liable to pay contributions and dues.

2. The Central Executive constituted by Rule 12 of the Rules of the Federation appears to be the committee of management of the Federation. The powers and duties of the Central Executive are set out in Rule 13. Under par (b) of that rule the Central Executive has the power to consider and decide upon any application for admission to membership referred to it by the General Secretary or other officer. There is no power conferred on the Central Executive or any other committee or officer of the Federation to remove from membership any member who has ceased to be eligible to be a member of the Federation. There appears to be nothing in the Rules of the Federation conferring such a power. The position within the Federation may be contrasted with the position within the Federated Clerks' Union of Australia, as illustrated by Prichard v. Krantz (No 1) supra, and Prichard v. Krantz (No 2) (1984) 6 IR 271 per Northrop J., and on appeal, (1984) 8 IR 404.

3. It follows that if Turner had been admitted as a member of the Federation he would have been entitled to remain a member of the Federation even if subsequently his employment had been terminated by Elcom, whether by way of retrenchment or otherwise. It follows, therefore, that orders under s 144(5A) and (6) of the Act should not depend upon what orders, if any, will be made against Elcom.

4. Under s 144(5A) the court has power to make such orders to give effect to its determination of an application under s 144(5) "as it thinks fit". The court, under s 144(5A), will make the declaration sought by Turner. Under s 144(6) an order that may be made under s 144(5A) is an order that the Federation treat Turner as being a member of the Federation. If such an order is made, the Act, by s 144(6), has effect, and by reason of the Act, Turner becomes a member of the Federation as from the date of the order, unless the court otherwise specifies in the order.

5. On the facts of this case it is clear that Turner was not admitted as a member of the Federation in January 1983. The Federation contended that he could not be admitted until he was working. Elcom believed that Turner could not commence his employment until he had been admitted as a member of the Federation. A vicious circle thus was created. That circle needs to be broken. Turner should not be deprived of his rights under the Act because of the wrongful acts of the Federation and the delays occasioned by legal proceedings. The court should give effect to the determination of the application made under s 144(5A) by making a further order under s 144(5A) and (6) requiring the Federation to treat Turner as being a member of the Federation.

6. The court should make the following orders:
   1. Appeal allowed.
   2. A declaration that, on 15 August 1983, Paul Turner was entitled to be admitted as a member of The Australasian Coal and Shale Employees Federation.
   3. An order requiring The Australasian Coal and Shale Employees Federation to treat Paul Turner as being a member of the Federation.
   4. An order remitting the matter to the Federal Court of Australia, constituted by a single judge, for the determination of the question whether relief, and if so what relief, should be granted against Elcom Collieries Pty. Ltd.

ORDER

Orders accordingly.