Van Grieken v Veilands

Re: CARLO FRIZZIERO
And: MICHAEL RAYMOND RICE; ROBERT LANE; PETER J. BROWN; LILA BARTLETT; M.E.
THOMPSON; CLIVE M. CALNAN; THE MANUFACTURING GROCERS AND CONFECTIONERS
ASSOCIATION OF AUSTRALIA (SOUTH AUSTRALIAN BRANCH); LEONARD KEITH JAMES, BERT
RICHTER; PAT ASHLEY; TOM STEELE; R. SHILLABEER; M.A. EYLWARD; L.R. BRERETON;
R.I. FRANCIS; W.A. QUICK; BRYAN SHILLABEER and THE CONFECTIONERY WORKERS UNION
OF AUSTRALIA (Intervener)
Nos. V I13 and 16 of 1990
FED No. 167
Industrial Law
(1991) 36 IR 291

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - branch - registration of association under law of a state - whether what was registered was the branch or a separate association.

Conciliation and Arbitration Act 1904.

Industrial Relations Act 1988 s.209.

Industrial Relations (Consequential Provisions) Act 1988 s.3, s.5.

Industrial Code 1920 (S.A.) s.69.

Industrial Code 1967 (S.A.).

Industrial Conciliation and Arbitration Act 1972 (S.A.).

Trade Union Act 1876 (S.A.).

Conciliation Act 1894 (S.A.).

Factories Act 1907 (S.A.).

Commonwealth Constitution s. 109.

Judiciary Act 1903 s.78B.

HEARING

MELBOURNE

#DATE 17:4:1991

Counsel for the applicant: Mr S. Howells

Solicitors for the applicant: Gill, Kane and Brophy

Counsel for the respondents: Mr T. McRae

Solicitors for the respondents: Stanley and Partners

Counsel for the intervener: Mr S. Howells

Solicitors for the intervener: Gill, Kane and Brophy.

ORDER

The first preliminary question is answered as follows:

Question: Whether the registration, effected on 9th November 1951, under legislation of the State of South Australia, of the Federated Confectioners Association of Australia (South Australian Branch) was registration of a branch of the Federated Confectioners Association of Australia, registered under the Conciliation and Arbitration Act 1904.

Answer: Yes.

The second preliminary question, namely whether the registration, effected on 9th November 1951, under legislation of the State of South Australia, of the Federated Confectioners Association of Australia (South Australian branch) was effective to create an incorporated body under the laws of the State of South Australia, be referred for the opinion of the Full Court, by way of case stated.

The parties comply with the provisions of Order 50 rule 2(a) of the Federal Court Rules with respect to the preparation of the special case.

The applicant give notice pursuant to s.78B of the Judiciary Act 1903 with respect to the second preliminary question.

Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

JUDGE1

On 24th April 1925, there was registered as an organization of employees under the Conciliation and Arbitration Act 1904 ("the C. and A. Act") an association called The Federated Confectioners Association of Australia. On 2nd June 1986, the Industrial Registrar consented to a change of name of that organization to the Confectionery Workers Union of Australia ("the C.W.U.A."). On 1st March 1989, the C. and A. Act was repealed and the Industrial Relations Act 1988 ("the Industrial Relations Act") came into force. The repeal was effected by s.3 of the Industrial Relations (Consequential Provisions) Act 1988. By s.5 of that Act, the C.W.U.A. was taken to become registered under the Industrial Relations Act and its rules continued in force.

On 9th November 1951, there was registered in the State of South Australia under the Industrial Code 1920 (S.A.) an association entitled The Federated Confectioners Association of Australia (South Australian Branch). The effect of that registration was continued, despite the repeal of the Industrial Code 1920 and its replacement by the Industrial Code 1967 (S.A.), and the repeal of that Act and its replacement by the current legislation, the Industrial Conciliation and Arbitration Act 1972 (S.A.) ("the State Act").
Also on 9th November 1951, there was registered pursuant to the Industrial Code 1920 (S.A.) an association named the Manufacturing Grocers Employees' Federation of Australia (South Australian Branch). The registration of that association was also continued under the Industrial Code 1967 and the State Act.
On 22nd February 1990, the Industrial Registrar under the State Act purportedly effected an amalgamation between the Federated Confectioners Association of Australia (South Australian Branch) and the Manufacturing Grocers Employees Federation of Australia (South Australian Branch), by registering an association under the State Act under the title the Manufacturing Grocers and Confectioners Association of Australia (South Australian Branch) ("the amalgamated association"). The central issue in these proceedings is the validity of the purported amalgamation.
The applicant is a member of the C.W.U.A. He holds office as its secretary/treasurer and as secretary of its Victorian branch. On 2nd May 1990, the applicant was granted a rule to show cause, directed to six persons who were then believed to constitute the committee of management of the South Australian branch of the C.W.U.A. That rule to show cause was matter No. VI 13 of 1989. The applicant sought orders pursuant to s.209 of the Industrial Relations Act that the respondents perform and observe the rules of the C.W.U.A. by treating as null and void any resolution to effect the amalgamation or any decision to amalgamate, by treating the members of the Federated Confectioners Association of Australia (South Australian Branch) as members of the C.W.U.A. and its South Australian branch, by depositing or otherwise investing in the name of the C.W.U.A. any moneys held in the name of the Federated Confectioners Association of Australia (South Australian Branch) and by transferring or causing to be transferred into the name of the C.W.U.A. any real property controlled by the Federated Confectioners Association of Australia (South Australian Branch). Orders were also sought pursuant to s.209 of the Industrial Relations Act against the first respondent, Michael Raymond Rice, the secretary of the Federated Confectioners Association of Australia (South Australian Branch), the Manufacturing Grocers Employees Federation of Australia (South Australian Branch) and the amalgamated association, calling upon him to forward correct returns as to the finances of the South Australian branch of the C.W.U.A. in accordance with the rules.
On 10th May 1990, an application was filed in the Court, which became matter No. VI 16 of 1990. In that application, the applicant sought orders against the persons believed to constitute the committee of management of the amalgamated association and against the South Australian Industrial Registrar, Mr Bryan Shillabeer. The orders sought were a declaration that the registration of the Federated Confectioners Association of Australia (South Australian Branch) on 9th November 1951 did not result in the creation of a corporate body, a declaration that certain provisions of South Australian legislation were and are invalid to the extent that they purported or purport to confer corporate status on the Federated Confectioners Association of Australia (South Australian Branch), an order quashing or setting aside the decision to register the amalgamated association and an order quashing or setting aside the decision to cancel the registration of the Federated Confectioners Association of Australia (South Australian Branch).
On 16th May 1990, the two proceedings were consolidated. Leave was given to the C.W.U.A. to intervene in each proceeding, and a direction was given that the amalgamated association be added as a respondent. Subsequent amendments were made to the parties so that, apart from the amalgamated association and Mr Bryan Shillabeer, the list of respondents reflects accurately the personnel comprising the committee of management of the amalgamated association. Mr Howells of counsel appeared for the applicant and for the intervener, the C.W.U.A. Mr McRae of counsel appeared for all of the respondents other than Mr Bryan Shillabeer, who communicated with the Court by means of a letter, indicating his preparedness to submit to any order of the Court.
Following evidence and argument, on 18th October 1990, I ordered pursuant to O.29 r.2(a) of the Federal Court Rules that two questions be decided separately from any other question in the consolidated proceedings, namely:

"Whether the registration effected on 9th November 1951 under legislation of the State of South Australia of the Federated Confectioners Association of Australia (South Australian Branch):

1. was registration of a branch of the Federated Confectioners Association of Australia, registered under the Conciliation and Arbitration Act 1904;

2. was effective to create an incorporated body under the laws of the State of South Australia."

I was invited by both counsel to state a case for the opinion of the Full Court as to the second question, if the first question is answered in the affirmative.

The answer to the first question depends in large part on a somewhat intricate history of trade unionism among confectionery workers both in South Australia and in other states, particularly Victoria and New South Wales. There is evidence of the formation of an association, or associations, of confectionery workers in South Australia from about 1907. Mr McRae tendered as part of the records of the Federated Confectioners Association of Australia (South Australian Branch) a mounted photograph of six men. In gold lettering, on the cardboard mounting above the photograph, is the inscription "South Australian Confectioners' Employees' Society. Executive". Names apparently belonging to the men in the photograph have been placed on the mounting board in gold lettering, but only one or two can now be deciphered. Adjacent to the bottom right hand corner of the photograph, there appears "1908". On the mounting board to the left of the photograph appears a handwritten inscription "Union Formed 1907 August". Minutes of various meetings of the Trades and Labour Council of South Australia were also tendered. They contained lists of trade unions participating in annual Labour Day processions. Those of 6th August 1908 refer to "Confectioners Society", those of 22nd September 1910 to "United Confectioners Society" and those of 17th August 1911 to "Confectioners Employees Union". It is not known whether these different names were attached to different groups, whether they resulted from name changes, or whether the recording of the name was simply inaccurate. At all events, although the Trade Union Act 1876 (S.A.) and the Conciliation Act 1894 (S.A.) made provision for registration of trade or industrial unions, there is no record of any union of confectionery employees having been registered at that time.
The Factories Act 1907 (S.A.) made provision for the appointment of wages boards. There are in evidence the minutes of a board established for the trade, process, etc. of the manufacture of confectionery, described as the Confectionery Board. The first meeting is shown as having taken place on 22nd May 1911. Among the employee representatives there appear the names Bolitho, Dix and Rush. These names recur frequently in the records of the various bodies involving confectionery workers in South Australia. The Confectionery Board met from time to time and made determinations as to wages and conditions of employment. It appears to have functioned up until about 1920. The minute book records it as having met on 24th August in that year, and having made an altered determination.
There is also in evidence an award made on 23rd November 1920, with respect to biscuit makers. The claimant for an award was the Australian Workers' Union and the employer parties were E. Williamson and Co. Ltd., Motteram and Sons Ltd. and W. Menz and Co. Ltd. The importance of coverage of biscuit making will become apparent later in these reasons for judgment. The activity in the field of biscuit making by the Australian Workers' Union may have prompted action by those concerned with confectionery. From about July 1921, there appears to have been constituted a Biscuit and Confectionery Board. Two of the members of that board were named Menz and Motteram respectively. The three who appear to have been representatives of employees were John Leslie Nash, Walter George Clough and Percival Edward Gogal. Those names are also prominent in a number of records of bodies associated with confectionery workers.
There is also in evidence a small book, described as a "rules and contribution book", bearing the name "The South Australian Confectioners Employees' Society". It bears the year 1921 as its date of publication. Under rule 2 of its rules, the society is to consist of "an unlimited number of members who are engaged wholly or partly in the manufacturing of confectionery". H. Ray is named as president and W.G. Clough as hon. secretary. There are handwritten notations in the book, apparently recording the payment of contributions, but the dates are substantially later than 1921. It is also of interest to note that the minutes of the meeting of the Biscuit and Confectionery Board of 17th July 1922 refer to "members of the S.A. Confectioners Society".
In the meantime, the first step was taken in what was to be a long power struggle for the allegiance of confectionery workers in the federal sphere. On 10th November 1917, the Industrial Registrar under the C. and A. Act effected the registration of an organization called the Female Confectioners Union ("The F.C.U."). Despite its title, the F.C.U. was not restricted by its rules to accepting as members only women. Within a year, an apparent competitor for the F.C.U., entitled the Female Confectioners Union of Australia, had applied for registration. Its secretary was a Mr Edward Henry Augustus Smith. The vice-president was Ms M. Wearne. Membership was confined to females. Registration was apparently refused.
The next application was by an association called The Confectioners and Employees Industrial Union of Australia, on 31st July 1920. This association appears to have been based in Victoria. Its rules entitled all persons employed in the manufacture of confectionery and chocolate in Australia to be its members. An objection was lodged on behalf of the F.C.U. by Edward Henry Augustus Smith and Margaret Wearne. From statutory declarations filed in support of the objection, it appears that the unsuccessful Female Confectioners Union of Australia had amalgamated with the F.C.U., that the F.C.U. and the Confectioners and Employees Industrial Union of Australia both operated only in Victoria and that the F.C.U. had decided to change its name and to accept as members males as well as females. The application for registration failed.
The next move in the federal sphere was made by an association called The Confectioners Industrial Union of Australia ("C.I.U.A."). This also appears to have been a Victorian-based association, although the material in support of the application for registration discloses the formation of a branch in New South Wales on 17th January 1922. Membership of the C.I.U.A. was restricted to male persons employed in the production of confectionery or chocolate or in or about any confectionery or chocolate factories. Registration was granted under the C. and A. Act on 18th August 1922.
Yet another attempt at registering an association based in Victoria was made by application dated 20th September 1923. This time, the association was called The Australian Confectionery Workers Union. Its president was William E. Pinkham, who had been shown as president of the C.I.U.A. in its application for registration. The secretary was one Daniel McLaughlin. The rules of the association were framed so as to entitle all employees engaged in or in connection with the industry of manufacturing confectionery and chocolate to be members. There was an objection from the F.C.U., signed by Mr Smith and Ms Wearne. The application for registration was refused. At that stage, therefore, there were two relevant organizations registered under the C. and A. Act, namely the F.C.U. and the C.I.U.A. The former apparently catered for females, although its rules were not restricted. The latter was able to accept males only as its members.
There is in evidence a minute book, containing minutes of meetings apparently held in South Australia from 3rd March 1924 to 14th January 1941. The first of these minutes is headed with the name of the C.I.U.A. It is recorded that the "minutes of the previous meeting (were) read and confirmed". Those minutes must have been recorded otherwise than in this book. Under the heading "General Business" there appear the following items:

"Secretary read letter from General Secretary who was present Comrades Gogan and Swanson moved That this Branch pay the Expenses of General Secretary in his visit to South Australia Carried

General Secretary then spoke thanking the members for their cordial reception and then explained the benefits of all States being members of the Federation. After the General Secretary spoke and answered several questions, The following resolution was moved by Comrades Rush and Nash

That all confectionery employees present become members of the Federation and that they pledge themselves to endeavour to get all employees in Adelaide to do likewise

Carried unanmiousley (sic) Comrade Nash and Ray moved that the present officers be asked to carry on until the finalization of coming into the Federation as a Branch

carried"

Later in the minutes appears a list of thirty-five persons as being persons from whom applications were received for membership of the "Federation".

From that time up to and including 4th May 1925, the minute book records minutes of meetings held monthly, or in some cases more frequently. All but one are headed "Confectioners Industrial Union of Australia South Australian Branch". The one exception is described as a special summoned meeting of the "Confectioners Industrial Union". The minutes of the meeting on 18th August 1924 record as follows:

"The secretary reported having received a letter from Journeymen Confectioners Union Sydney the secretary was instructed to write N.S.W. and State that we are a Branch of The Confectioners Industrial Union of Australia and therefore cannot take any actions..."

In the meantime, further events occurred in the federal sphere. On 20th May 1924, fifty-two persons engaged in the confectionery industry met in Sydney and resolved unanimously to form an association with the object of securing and enrolling members in New South Wales and other states and for the purpose of registering under the C. and A. Act. The name adopted was the Federated Confectioners Association of Australia ("the F.C.A.A."). Office bearers were elected, including one J.E. Phelan as secretary-treasurer, who had been listed as the secretary of the New South Wales branch of the C.I.U.A., in the material accompanying its application for registration. At a further meeting of the F.C.A.A. a week later, rules were adopted. Rule 5 was in the following terms:

" 5. CONSTITUTION The Association shall consist of Journeymen Confectioners and all employees engaged or usually engaged in or in connection with the manufacture of Chocolate, Cocoa, Glucose, Licorice, Candy and confectionery including all sweetmeats, throughout the Commonwealth, together with such other persons whether employees in any industrial pursuits or not, who may have been appointed officers of the Association and admitted as members thereof."

The meeting also resolved that the association make application for registration as an organization under the C. and A. Act.

The minutes of the C.I.U.A. for 6th October 1924 record that the meeting was addressed by Mr J. Phelan, "secretary of the Sydney Confectioners Union". He apparently informed the meeting of the steps which had been taken by the F.C.A.A. for registration under the C. and A. Act. At a meeting of the management committee of the F.C.A.A. in Sydney on 14th October 1924, as the minutes record:

"The Secretary reported that progression as to membership was slow, consequent on the position that pertained to Victoria. Members of the State (N.S.W.) Union were chary of linking up with the Federal body while the present uncertain conditions prevailed. He, the Secretary, thought it was desirable a delegate should be sent to Melbourne with a view to conferring with the Melbourne Trades Hall executive and representatives of the Female Confectioners Union and Confectioners Industrial Union."

The meeting instructed Mr Phelan to arrange the suggested conference and deputed him to represent the F.C.A.A. at it.

On 24th April 1925, registration under the C. and A. Act of the F.C.A.A. was effected. This was reported to a meeting of the C.I.U.A. South Australian branch in Adelaide three days later. The minutes recorded that "all members present was (sic.) pleased with the results".
There were therefore three separate organizations registered pursuant to the C. and A. Act, and having as members employees engaged in the manufacture of confectionery. The subsequent relations of the three are a matter of some confusion so far as the evidence is concerned. This confusion seems to have been particularly acute in relation to South Australia. On 4th May 1925, there was a special meeting described as being a meeting of the "Confectioners Industrial Union". The minutes record the reading of a letter from "General secretary Bro. D. McLaughlin" concerning the registration of the confectioners in Sydney. There was then discussion of "the matter of sending the Federal Secretary an invitation to come over and form a male and also females Branch". It was resolved that the secretary write and give Mr McLaughlin an invitation "to come over at once and form a male and female Branch of the Federated Confectioners Association of Australia...".
The reasoning behind this resolution is difficult to understand. As the evidence shows, Mr McLaughlin was secretary of the C.I.U.A., a branch of which had already been formed in South Australia a little over a year earlier. The F.C.A.A. appears to have been under the command of Mr Phelan in Sydney. Nevertheless, the South Australian minutes for 25th May 1925 contained a report of "a visit of the Federal Secretary to form a new Federation of male and female workers" and a special meeting on 14th May 1925. The minutes contain long lists of females and males respectively as being persons who had joined "the Federation". The same minutes contain a resolution, "That the South Australian Branch of the Confectioners Union at once affiliate with the Federated Confectioners Association of Australia and therefore become a Branch of the Federation". To add to the confusion, it appears from minutes of a meeting of the C.I.U.A. in Melbourne on 10th August 1925 that the secretary of the South Australian branch had written asking for information re finalising registration and enclosing a list of new members, most of whom were females. At all events, after 25th May 1925, up to and including 4th July 1938, the South Australian minutes bore a heading in the name of "Federated Confectioners Association of Australia South Australian Branch", the few exceptions involved the omission of the words "of Australia". A return filed with the Industrial Registrar by the F.C.A.A. in respect of the year ended 31st December 1925 disclosed the existence of members of the F.C.A.A. in South Australia. The names include several which appear regularly in the South Australian minutes.
The existence of confusion as to the relationship between the various trade unions of confectionery workers is borne out by evidence of attempts made to resolve that confusion. On 25th January 1926, the management committee of the F.C.A.A. received correspondence from Mr McLaughlin, described as the secretary of the Victorian branch, and from Mr Clough, described as the secretary of the South Australian branch, concerning the finalization of rules. There was discussion of the need for a federal conference between delegates from the New South Wales, Victorian and South Australian branches. Mr Phelan proposed sending a letter to Mr McLaughlin, Mr Clough and to Mr Smith, representing the F.C.U., proposing a federal conference in Melbourne on 26th February. The meeting endorsed the sending of this letter. The South Australian minutes record a meeting on 15th February 1926, at which Mr Nash and a Miss Simmons were elected as delegates to the federal council for its meeting on 26th February.
The conference took place on the appointed day and on several days thereafter. Its minutes opened with the following:

"Present Mr J. Phelan, General Secretary "The Federated Confectioners' Association of Australia" (New South Wales). Mr Nash and Miss Simmonds (South Australia). Messrs D. McLaughlin and D. McArthur (Confectioners' Industrial Union of Australia), Miss Margaret Wearne General Secretary and E.H.A. Smith (General President) Female Confectioners' Union."

A reading of the minutes shows that the participants in the meeting were discussing what they regarded as "amalgamation". The sticking point appeared to be a dispute between the C.I.U.A. and the F.C.U. over the representation of those organizations on a Victorian wages board. Mr Smith made it clear that, unless that dispute was resolved, amalgamation could not proceed. The meeting eventually broke down on this issue.

When Mr Phelan reported on the conference to the management committee in Sydney on 8th March 1926, he raised the possibility that "the New South Wales Branch would have to consider the question of withdrawing registration". In the end, the committee resolved:

"That with a view to helping South Australian branch members in an endeavour to secure better conditions, and in view of the expense the Branch in South Australia had been put to in sending two (2) delegates to the Federal Conference, this committee adopts a passive attitude pending finalising of Federal and Branch rules and a Federal Council meeting".

The meeting did instruct Mr Phelan to keep in touch with the legal adviser who was responsible for drafting rules, and with the "Victorian and South Australian Branch Secretaries".

The reaction in South Australia was somewhat more dramatic. The minutes of a meeting of 11th March 1926 record that the delegates gave a full report of the conference and urged affiliation with "the Sydney employees". The meeting resolved, "That a List of members be sent to the Secretary in Sydney when the State Secretary receive correspondence from Sydney to do so and that this Branch at once affiliate with the Sydney Branch and form the Federation".
Eleven days later, a meeting of the C.I.U.A. in Melbourne resolved, "That we apply for Affilitation (sic.) with the Federated Confectioners Association of Australia as the Victorian Branch."
On 23rd November 1926, Mr McLaughlin attended a meeting of the management committee of the F.C.A.A. in Sydney. The minutes record that:

"The chairman welcomed Mr McLaughlin and hoped that as a result of his visit a step forward towards the welding together of States in an active Federal body would be made. The Federal body as it now existed was one only in name, and to achieve anything there must be unity in action and proper Federal and Branch rules to work under."

Mr McLaughlin requested a federal council meeting, to consist of two delegates from each state branch, but proposed to exclude Mr Smith of the F.C.U. In the end, the committee resolved that the New South Wales branch be requested to appoint a delegation of one or two members to a federal council meeting, that a similar invitation be sent to the Victorian and South Australian branches and the female Confectioners Union and to a Mr Culley in Tasmania. It was made a condition of the council meeting that the "Victorian Branch bodies" pay pro rata the cost of visiting delegates from New South Wales and South Australia.

The federal council meeting took place on 25th February 1927. Mr Clough and Mr Nash were present from South Australia, Mr Phelan and Mr Thrussell from New South Wales and Mr McArthur and Mr McLaughlin from Victoria. Power was given to Mr Phelan and a Mr Connington (who was apparently advising about the content of rules) "to alter Rules to suit further progress providing that no alteration in the Constitution be allowed, and that they be submitted to all Branches for adoption or otherwise." Officers were elected "pro tem". They were Mr Clough as president, Mr Thrussell as vice president, Mr Phelan as secretary-treasurer and Messrs McArthur, McLaughlin and Nash as trustees, together with five persons from New South Wales as members of the management committee. It was resolved that Victoria and New South Wales pay five pounds and South Australia and Tasmania pay two pounds ten each to make up "Capitation Fee for Federal funds".
The South Australian minutes for 17th January 1927 record the election of Mr Nash and Mr Clough as delegates to the federal council in Melbourne. The result of that meeting was reported to another meeting in South Australia on 7th March, which resolved to pay the two pounds ten shillings to the "Capitation Fund". At a further meeting in South Australia on 23rd May 1927, it was resolved:

"That the Secretary be instructed to write Federal Secretary and send him all the correspondence which has been received from McLaughin Secretary Victorian Branch during the last two months and write to McLaughlin telling him that all correspondence must come through the Federation".

It is clear that what was done in February 1927 towards creating a federation was done to the exclusion of the F.C.U. Difficulties were still occurring in Victoria over the existence of two confectioners' unions, one for females and one for males. On 30th May 1927, a meeting of the C.I.U.A. in Melbourne resolved, "That Secretary be instructed to make another move for the Amalgamation of the Male and Female section". A special meeting was held in South Australia on 9th June 1927 to discuss correspondence from Victoria concerning drawing up a log. That meeting resolved to ask Mr Connington for advice whether Mr McLaughlin had power to enrol girls in "Victorian Federated Confectioners Union" and if he did not and the South Australian branch went to court whether "we can get an award for our females in South Australia". It was also resolved that Mr McLaughlin be invited at the expense of the Victorian branch to address a meeting on 20th June. This meeting occurred, and Mr McLaughlin came. The discussion seems to have been about a joint log of claims with the Victorian branch.
Rules for the F.C.A.A., including branch rules, were sent out by Mr Phelan in or prior to August 1927. On 2nd August, the rules were received by a meeting of the C.I.U.A. and referred to the next meeting. On 12th September, a meeting in South Australia resolved to accept the rules as the rules of the F.C.A.A. There was apparently some lingering doubt about the position of the Victorians, as the same meeting instructed the secretary to write to the federal secretary asking him for a definite opinion of Mr McLaughlin's attitude and asking whether the Victorian branch had paid its capitation fees. The rules were adopted at a meeting of the C.I.U.A. on 17th October. They were filed with the Industrial Registrar, accompanied by a declaration of Mr Phelan made on 20th November 1927. What was advanced as the South Australian rules was a copy of the 1921 printed rule book of the South Australian Confectioners Employees' Society.
Thereafter, the F.C.A.A. filed with the industrial registrar under the C. and A. Act returns containing information as to its various branches. Included was information concerning the South Australian branch. The information consisted of such things as lists of members, financial accounts showing sustentation fees paid by the South Australian branch and lists of officers. The presence of this information in the records of the industrial registrar coincides with entries in the South Australian minutes, indicating that information was supplied from South Australia to the secretary of the F.C.A.A. from time to time, and that meetings in South Australia passed for payment amounts of sustentation fees to the federal council of the F.C.A.A.
At a meeting on 7th November 1927, in Adelaide, there occurred an event which is of some significance in these proceedings. The meeting, which was recorded in the minutes under the heading "Federated Confectioners Association of Australia South Australian Branch" resolved:

"That the secretary be instructed to write to the Trades and Labor Council asking them to organise the Biscuitmakers employees and that we are prepared to take over the same when organised also that we have been approached frequently by the employees to do so."

On 15th May 1928, the industrial registrar under the C. and A. Act consented to an alteration to the rule of the F.C.A.A. concerning eligibility for membership. This consent brought the rule into the form which it has retained to this day, and which is as follows:

"The Association shall consist of all journeymen Confectioners and all employees engaged in or in connection with the manufacture of Chocolate, Cocoa, Liquorice, Candy and Confectionery, including all Sweetmeats, chewing gum and the like throughout the Commonwealth, together with such other persons whether employees in any industrial pursuits or not who may have been appointed officers of the Association and admitted as members thereof. Provided that persons manufacturing Chocolate, and/or cocoa in the establishments of manufacturing grocers, whose part of the manufacturing business is to manufacture cocoa and/or Chocolate shall not be enrolled."

The major alteration to which consent was given was the addition of the proviso. The reference to "chewing gum and the like" was also added, and a prior reference to "glucose" was deleted.

The South Australian minutes disclose dissatisfaction from time to time with the federal connection. An example is found in the minutes of a meeting on 14th January 1929, which had been called as a special meeting to see if members were prepared to send delegates to Sydney for a federal council meeting. The decision of the meeting was to appoint one delegate from South Australia and to ask for a proxy delegate from the Sydney branch. The secretary was elected as the one delegate. The meeting resolved to instruct the delegate to vote for the federal council to meet every three years in each state in rotation and also resolved:

"That if there is no likelihood of anything being at the Federal Council the delegate be instructed to tell them that we will withdraw from the Federation".

The protest must have had some effect, because the federal council on 4th February 1929 resolved that its next meeting would be in Adelaide. At that same meeting, Mr Clough was re-elected as president, Mr Phelan as secretary-treasurer, Mr Nash as one of the trustees and Mr McLaughlin as a committee man of the F.C.A.A.

The South Australian minutes for 25th May 1929 record the receipt and adoption of branch rules with alterations.
Two declarations made by Mr McLaughlin on 14th August 1929 and filed with the Industrial Registrar, for the purpose of filing lists of officers and members of the C.I.U.A., disclosed officers with addresses only in Victoria, and members only in Victoria and Tasmania. The letterhead on which the list of officers appeared had the name of the C.I.U.A. in a banner, with a reference to the F.C.A.A. in small letters in brackets underneath. It also claimed that the C.I.U.A. had been established in Victoria in 1882 as the Victorian United Confectioners' Society, and referred to the date of registration of the C.I.U.A. under the C. and A. Act.
On 19th February 1934, a meeting in South Australia resolved, "That the secretary be instructed to write Mr J.E. Phelan that we do not think it necessary to call a Federal Conference because we have had no notice of the N.S.W. Branch resignation from the Federation." Notwithstanding this, a federal conference was held in Melbourne on 13th April 1934. Mr Clough and Mr Nash attended as delegates from South Australia, having been elected at a special meeting in Adelaide on 4th April. Mr Phelan attended as secretary. There was one other delegate from New South Wales, two from Victoria and one from Tasmania. It is plain from the minutes of the conference that all was not well with the F.C.A.A. financially, and that there was dissatisfaction in the New South Wales branch. Proposals were brought forward for alteration of the rules, and it was resolved that the existing officers hold office pending such alteration. Again, it was resolved that the next meeting take place in Adelaide, financial circumstances permitting.
A meeting in Adelaide on 3rd September 1934 resolved, "That this Branch take no steps to alter any Rule and that Mr Phelan Federal Secretary be notified to that effect."
There is a dearth of evidence about the conduct of the affairs of the F.C.A.A. over the next four years. The South Australian minutes of 16th March 1936 suggest that Mr Clough had received a resignation from Mr Phelan as federal secretary. The following meeting on 14th April 1936 instructed the secretary to write to the New South Wales branch, conveying a suggestion of Mr McLaughlin, asking their opinion and notifying them of Mr Phelan's resignation, and also to write to Mr McLaughlin telling him that the New South Wales branch opinion was being sought. On 17th January 1938, there was reference to correspondence received from the federal secretary drawing attention to a proposed conference to be held the following March. By the meeting of 14th February, it was reported that there had been no further correspondence concerning the federal conference proposed to be held in March. The minute book of the F.C.A.A. does not contain any minutes of such a conference.
At a meeting in South Australia on 4th July 1938, Mr Clough resigned from the position of secretary and Mr T.M. Nicholls was appointed to that position. The next meeting in the South Australian minute book is under the heading of the South Australian Confectioners Employees Society. It was held on 2nd August 1938. The minutes record that a general discussion arose concerning the merits and demerits of federation, in which it was pointed out that the federation had "never actually functioned". It was resolved that the South Australian Confectioners Employees Society "shall continue to operate as a State Organisation." Eighteen days later, another meeting was held. Its minutes are recorded under the heading "Biscuit Makers and Confectioners Society of South Australia". They record the reading and confirmation of minutes of the previous meeting, the acceptance of numerous persons as "members of the union" and the decision "that the name of the union be changed to the Biscuit Makers and Confectioners Society of South Australia". In fact, that name was never used again in relation to any minutes retained in the South Australian minute books. The very next meeting, of 27th September 1938, is recorded under the heading "S.A. Biscuit Makers and Confectioners Society". The next two, on 22nd November and 20th December 1938 have the heading "S.A. Biscuit Makers and Confectioners Union". The meeting of 20th December dealt with a motion by the secretary "that in the opinion of this meeting the S.A. Branch should be represented at the Federal Council meeting". A meeting on 17th January 1939, under the heading of "THE S.A. Biscuit Makers and Confectioners Employees Society" received a letter from Mr Phelan, claiming to be the federal secretary of the F.C.A.A., complaining that no annual returns had been forwarded and that the rules had not been adhered to with respect to returns and payments of sustentation fees. The letter threatened proceedings for the observance of the rules in accordance with the C. and A. Act. The secretary reported he had communicated with "the Victorian Secretary Mr Lucas" in reference to the matter and this action was endorsed.

A meeting of the F.C.A.A. federal council was held in Melbourne on 9th March 1939. Its first act was to elect as its chairman Mr Nicholls, described as "Secretary S.A. Branch". He stated to the meeting that it was "an informal meeting of Federal Council Delegates convened for the purpose of deciding as to whether the Federation could be revived and function as a Federal Organization...". Mr Phelan was apparently in very bad health and the meeting accepted his resignation as federal secretary. An assurance was received that the New South Wales branch was willing to be represented at a meeting of the federal council if it were convened in May or early June. Officers were elected. Mr Nicholls was elected as president, Mr Thrussell from New South Wales as vice president, Mr Lucas from Victoria as secretary-treasurer and Mr Culley from Tasmania as a trustee, along with Mr Brown from Victoria. A further meeting was fixed for May or early June 1939.
A meeting of the "S.A. Biscuit Makers and Confectioners Society" on 14th March 1939 received a report of the federal council meeting and resolved to pay the quota of the South Australian branch of arrears of salary owing to Mr Phelan. The next meeting, on 18th April, under the same name, received advice from Mr Lucas as federal secretary, concerning the next federal council meeting.
The federal council met in Melbourne on 19th June 1939. New South Wales was not represented, but South Australia, Tasmania and Victoria were. The office of the F.C.A.A. was moved to Melbourne. Elections were held for officers. Mr Nicholls was elected president, Mr Culley vice president, Mr Lucas secretary-treasurer and a Mr Stokes from Tasmania and Mr Brown from Victoria trustees. Sustentation fees were fixed at five per cent, rules were amended and a log of claims was adopted for Victoria and Tasmania. The rule alterations were lodged with the Industrial Registrar by Mr Lucas on 15th September 1939.
The South Australian minute books contain minutes headed with a startling variety of names between February 1939 and September 1944. The name on the minutes of 14th February 1939 is "Confectioners Employees Society". The name "Confectioners Union" is used on 20th February 1939, for eleven meetings between 1st August 1939 and 14th May 1940 and for two further meetings on 24th August and 17th December 1940. The name "S.A. Biscuit Makers and Confectioners Society" appears for six consecutive meetings between 14th March 1939 and 4th July 1939 and once more on 6th May 1941. "Biscuit Makers and Confectioners Union" appears on 11th June 1940 and 27th August 1940, and again with the words "S.A. Branch" added on 13th August 1940. "Confectioners and Biscuit Makers Society of S.A." is used for 11th March 1941 and "Federated Confectioners and Biscuitmakers Union S.A. Branch" for 8th April 1941. "The Federated Confectioners Association of Australia S.A. Branch" appears for successive meetings on 9th June and 26th August 1941. It is followed by "Confectioners and Biscuitmakers Union S.A. Branch" on 18th November 1941 and "The South Australian Biscuit and Confectiony (sic.) Union" on 10th March 1942. There follow two meetings under the title of "Confectioners and Biscuitmakers Federation S.A. Branch" and two more with that title with the words "of Australia" inserted after the word "Federation". Then there is "Federated Confectioners and Biscuit Makers Union of Aust" on 1st December 1942. "Confectioners and Biscuitmakers Union of Australia. S.A. Branch" appears on 9th February 1943, 24th August 1943, 7th March 1944, 4th July 1944 and 5th September 1944. It is interspersed with "Confectioners and Biscuitmakers Federation of Australia S.A. Branch" on 6th April 1943 and 7th September 1943, "Federated Confectioners Union of Australia S.A. Branch" on 7th December 1943 and "Confectioners and Biscuitmakers Employees Union of Australia S.A. Branch" on 4th April and 2nd May 1944. From 3rd October 1944, until 5th April 1949, there is consistent use of the title "Confectioners and Biscuitmakers Federation of Australia S.A. Branch". From 3rd May 1949 onwards, the title used is "The Federated Confectioners Association of Australia S.A. Branch".
The South Australian meeting on 8th April 1941 received correspondence from Mr Lucas as federal secretary, concerning a federal council meeting to be held in Hobart on 28th April and requesting the South Australian branch to appoint two delegates to attend the meeting. It was resolved after discussion to inform the federal secretary that South Australia would be unable to be represented at the meeting "owing to our financial position". The meeting of the federal council took place on the appointed date, with delegates from Tasmania, New South Wales and Victoria present. Correspondence was received from the South Australian branch, explaining that lack of funds prevented the branch sending delegates, but stating that the branch still desired "to retain connection with the Federation and will do everything possible to further the intrests (sic.) of the Association". Various rule amendments were carried, and sustentation fees were fixed. Officers were elected, with no-one from South Australia being nominated.
Another meeting of the federal council was held at Melbourne on 30th August 1943 and subsequent days. Mr Nicholls attended as delegate from South Australia and delegates were present from New South Wales, Tasmania and Victoria. At the next meeting on 17th April 1944, there was no delegate from South Australia.
In the meantime, on 7th March 1944, Clive Calnan was appointed in South Australia to the position of part-time organiser, to work under the secretary as from 1st June 1944. On 27th June 1944, Mr Calnan filled out an application for membership in the name of "The South Australian Confectioners' Employees' Society".
On 7th November 1944, Mr Nicholls as secretary reported to a meeting in Adelaide on a conference he had had with Mr Lucas as federal secretary "in regards to matters concerning the S.A. Branch and the Federation." On 5th December 1944, elections were conducted at a meeting in South Australia for various offices, including delegates to federal council. Mr Nicholls and Mr Calnan (who was described as the "Organising Secretary") were elected as those delegates.
A federal council meeting of the F.C.A.A. was held in Sydney on 17th September 1945 and following days. Delegates were present from New South Wales, Victoria, Tasmania and South Australia. It is interesting to note that Margaret Wearne was one of the delegates from Victoria; it appears that finally there had been a reconciliation between the two competing bodies in that state. The delegates from South Australia were those elected. Mr Nicholls was by then a senator. In the elections for federal officers, Mr Calnan was elected as a trustee. Senator Nicholls and Mr Calnan gave a comprehensive report of the business transacted at the federal conference to a meeting held in Adelaide on 6th November 1945.
At a meeting in Adelaide on 4th March 1947, correspondence was received from Mr Lucas as federal secretary, to the effect that he was forwarding two hundred copies of the federal rule books for distribution amongst members and that further supplies were available on request.
On 26th August 1947 and subsequent days, the federal council of the F.C.A.A. met in Adelaide. South Australia was represented by Senator Nicholls and Mr Calnan. Ms Wearne, who was a representative from Victoria, queried why there was no female delegate from Tasmania and why South Australia was represented by two males. Senator Nicholls explained that the South Australian executive had been unable to induce any female members to accept the position of federal delegate. Mr Calnan was accepted as a delegate. It was noted by the president in his welcome that this was the first occasion on which the federal council had met in South Australia.
The question of representation by female delegates was raised again by Ms. Wearne at each of the next two federal council meetings, on 8th March 1949 at Hobart and on 26th November 1951 at Melbourne. From what Ms. Wearne is recorded as having said on each of those occasions, there appears to have been an "Amalgamation" between the F.C.A.A. and the F.C.U. The requirement of equal male and female representation of each branch came into the rules of the F.C.A.A. as a condition of that "Amalgamation". Ms. Wearne was complaining that the requirement was not being observed by some branches. In the context of the question of "Amalgamation", it is worth noting that on 6th March 1950, the registration of each of the F.C.U. and the C.I.U.A. was cancelled under the C. and A. Act.
In the meantime, the rules of the F.C.A.A. continued to be of concern to those who were meeting in South Australia. The minutes of such a meeting on 7th December 1948 recorded the receipt of correspondence from Mr Lucas as federal secretary, with copies of amendments to the rules decided on at the federal council meeting in Adelaide in 1947. The correspondence apparently pointed out that the amended rules "apply both to the Federal and States Bodies as from September 1947...". On 1st August 1950, there was received from Mr Lucas correspondence enclosing copies of new rule books and printed copies of amendments to insert into rule books.
On 3rd April 1951, Mr Calnan reported to a meeting that Senator Nicholls desired to resign from the position of "Honorary Secretary of the Union", because of parliamentary commitments. The resignation was accepted with deep regret and Mr Calnan was then unanimously appointed "to the position of secretary of the Union...".
A further meeting on 14th August 1951 considered a report from Mr Calnan that "the rules of the Branch" had not been revised for many years, did not make provisions for covering the biscuit section of the industry and did not comply with the latest amendments to state legislation. Mr Calnan and a solicitor had drafted a new set of rules "to be known as the S.A. Branch Rules" and to cover the biscuit section. The rules were adopted and it was resolved that they be registered in the state industrial court and be known as "the S.A. Branch Rules of the Association".
Registration under South Australian legislation was effected, as I have said, on 9th November 1951. It came about, on the evidence of Mr Calnan, because he received advice from Mr Lucas as federal secretary that there was no appropriate registration in South Australia, and that there was a danger that another union might attempt to secure membership in the areas covered by the body of which Mr Calnan was secretary in South Australia. Mr Calnan retired as secretary in 1981, but is still a member of the committee of management of the amalgamated association. He recalled being shocked to learn from Mr Lucas that there was no registration in South Australia. At the time, Mr Calnan was also secretary of two other unions. One of them was registered in South Australia on the same date, namely the Manufacturing Grocers Employees' Federation of Australia (South Australian branch). The other, a union of Wool and Basil Workers, was not registered under state law because, as Mr Calnan said, its federal registration was sufficient, as its members operated only under a federal award.
Following state registration, Mr Calnan arranged for the publication of a rule book for the South Australian branch. A copy of this book is in evidence. After registration, the relationship between what existed in South Australia and the F.C.A.A. continued much as it had prior to registration. Delegates were sent to federal council meetings, returns were sent to the federal secretary and sustentation fees were paid from time to time. Mr Calnan went on to hold office as federal president of the F.C.A.A., and later as federal secretary for a time.
In an affidavit filed by him in these proceedings, Mr Calnan said:

"Throughout the time that I was Secretary of the former State Registered Union and also of the Federal Organisation I believed that the State Union had a separate and independent existence. I am not able to say whether I believed that there was operating at the same time a State Union and a South Australian Branch of the Federal Organisation or whether I believed that the State Union while holding its separate and independent existence at the same time functioned as part of the larger group comprised in the Federal Organisation.

12. I do know that I believed that at all relevant time (sic.) that I was the Secretary of an association of people engaged in making biscuits and confectionery, which was separate from any other group, which was registered in the South Australian Industrial Court from 1951, which held assets of various kinds and which was obliged to the Federal Organisation only to the extent that sustentation fees of a fairly minimal kind were paid.

13. I was not particularly concerned about separate bank accounts, minutes, records and the like since I believed that the only separate accounting I needed to make was for the sustentation fees."

Mr Calnan was cross-examined about these matters. From his evidence in the witness box, it is clear that he never believed that there were in existence two separate bodies, a state union and a branch of the F.C.A.A. Whatever was in existence was to him one and the same body.

Mr McRae submitted that I should find on an analysis of this history that a purely South Australian association existed and was registered on 9th November 1951. There is no evidence that such an association was formed especially for the purposes of registration. If such an association existed, it did so either because that which functioned in South Australia had never succeeded in becoming a branch of any federally registered organisation or because, notwithstanding the existence of such branch, a separate, distinct and parallel association existed throughout. The last of these alternatives was the one urged by Mr McRae. He pointed to the 1908 photograph, the entries in the Trades and Labour Council minutes, the participation in wages boards and the 1921 rule book as evidence of the existence of an organised body of confectioners, or of confectioners and biscuitmakers, prior to the earliest of the minute books which is in evidence. The argument is weakened by the inconsistency of names as between the 1908 photograph and the Trades and Labour Council minutes between 1908 and 1911. The functioning of the wages boards and the existence of the 1921 rule book do point strongly to the existence prior to 1924 of an association of the relevant kind. In my view, it is probable that such an association existed, even if its existence was not continuous from 1907. The real question is whether that association survived the steps which were clearly taken to set up a branch in South Australia of a federal organization. The first of those steps occurred in 1924, with respect to the C.I.U.A., and involved the receiving of applications from members to become members of that organization. In 1925, shortly after the registration of the F.C.A.A., there was an express resolution to become a branch of that organization, and an admission of members to it. In case that was ineffective, it is plain that subsequently the C.I.U.A. (and the F.C.U.) effected an amalgamation with the F.C.A.A. The only reasonable conclusion is that the members of the C.I.U.A. and the F.C.U. joined the F.C.A.A., upon certain rule changes having been made to accommodate them. The F.C.A.A. therefore became a truly federal body, with branches covering New South Wales, South Australia, Victoria and Tasmania. The evidence compels a finding that the officers and members of whatever trade union body was operating in South Australia in the 1920's with respect to confectioners became officers and members of a branch of the F.C.A.A., and that that branch commenced to function as such.
The next question is whether it continued so to function. There is no doubt that, right up to 9th November 1951 and beyond, the South Australians performed many acts which were consistent only with their functioning as a branch of the F.C.A.A. They sent returns and sustentation fees to whoever was federal secretary of the F.C.A.A. at the time. They elected delegates to attend federal council meetings and those delegates at times held office in the F.C.A.A. at the federal level. It is true that there were times when lapses occurred in relation to these obligations. Those lapses were not of a permanent nature. It is also true that dissatisfaction with the relationship with the federal body is evident in the South Australian minutes. In particular, there were expressions of such dissatisfaction in 1929 and 1938. The first such expression was accompanied by a threat to withdraw from the Federation, which is consistent with the view that the South Australian branch was part of a federation. The second expression of dissatisfaction has already been detailed. It involved a purported change of name, and a statement of intention to continue to operate as a state organisation. From the subsequent minutes, however, it is plain that these intentions were never carried into effect. The South Australians continued to function as a branch, and participated in a revival of the federal machinery of the F.C.A.A. in 1939.
The only item of evidence which gives rise to any real doubt about the continued operation of a South Australian branch is the variety of names used between 1939 and 1944 in the minutes, and the inconsistency of names found in forms of application for membership. In the case of names in the minutes, the very variety of names itself lends support to the proposition that names should not carry much weight. It is plain that there were not as many different associations as there were names, and that whoever kept the minutes gave insufficient attention to that formality. The same is probably true in respect of applications for membership. Whatever might have been the legal effect of an application on a form bearing a name other than that of the F.C.A.A. or its South Australian branch, the use of forms with different names does not overcome the weight of evidence supporting the view that what was functioning was in fact a branch.
Further, it must be said that there is no evidence to support the proposition that more than one body existed and functioned throughout the period between the mid 1920's and 9th November 1951. All of the evidence points to the proposition that there was one functioning body.
A major factor on which Mr McRae relied, in an attempt to defeat the suggestion that what was registered in South Australia was the branch of the F.C.A.A., was the differences in eligibility rules between the South Australian and the federal rules. The conditions of eligibility for membership of the F.C.A.A. have been set out earlier in these reasons for judgment. Those registered under the Industrial Code 1920 (S.A.) and subsequent South Australian legislation are found in rule 3 of the registered rules, which provides as follows:

"The Association shall consist of confectioners and all employees (other than clerks) engaged in or in connection with the preparation and manufacture of biscuits, ice cream cups and wafers, drinking straws, chocolate, cocoa, licorice, candy and confectionery including all sweetmeats, chewing gum and the like together with such other persons as have been appointed officers of the Association and admitted as members thereof."

In Bailey v Krantz, the view was taken that a question such as this did not involve a matter arising under the Constitution or involving its interpretation, for the purposes of s.78B of the Judiciary Act 1903. Having reconsidered that question, I incline to the view that such a question may well be raised, and that a notice of the kind required by s.78B should be given. It may well be appropriate to regard a question whether the provisions of federal and state legislation are inconsistent for the purposes of s.109 of the Constitution as a question "arising under" the Constitution. The applicant will therefore be directed to give the required notice.

[1991] FCA 167

17 APRIL 1991