Wilson, Henry Edward v application for inquiry into an election in the Amalgamated Metal Workers & Ship Wright Union

.J'

CATCHWORDS

lndustrial law

- whether provislons of union rule requiring

notification of election in union Journal mandatory

directory - held provision mandatory with the result that

steps taken towards the holding

of an election for the

position of Joint National Secretary invalid and of no

effect.

HENRY EDWARD WILSON . JCHN P. DEVERGUX & ORS.

ADXIAN HART v.

JOHN P. DEVEREUX & ORS.

SODERICK

TERENCE

KELLY

JOHN P. DEVZREUX

and IN THE

MATTER

of an application for an Inquiry into

election in THE

AMALGAMATED

METAL

viOMERS'

AIGD SFiIFURIGHTS1 UNION.

Nos. 3, 4 , 6 and 7 of 1980

SHEPPARD J.

Sydney

13th March, 1980

IN THE FEDERAL COURT

OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY Nos.	3 and 4 of 1990
INDUSTRIAL DIVISION

In the matter of

THE CONCILIATICK AKD AFBITRATION

ACT 1904

BETWEEN

HENRY EDWARD WILSON

Appellant

and

JCHN P. DEVEREUX & ORS.

Respondents

AND

BETWEEN ADRIAN HART

Appellant

and

JOHN F. DEVEREUX & ORS

Respondents

DATE OF ORDER: 13th March, l980

WHEX MADE:

Sydney

JUDGE MAKING ORDER: Sheppard, J.

ORDER:

Order that the following question be tried as

a eparate

question from any other question

In these proceedings:

*ether the provisions of Rule

12 sub-rule 2 of the

Rules of the fifth Respondent requiring

a notice of

election to be published in the Union Journal was

complied with

in relation to the election for the

position of Joint National Secretary the subject of

these proceedings, and	If not, what is the consequence
of such non-compliance.

1 A .

Cetermine that question

by saying that the provlsions

of rule 12.2 of the Union Rules were not complied with in that no notice of the election was published in the Union Journal.

The consequence of that non-compliance

is thet any purported

election, which was held, any purported nomination which was received, and any other step taken towards the holding of an election are of no force and effect.

Order that the first

and fifth respondents treat the

purported election so far as it has proceeded for the position

of Joint National Secretary for which nominations were called

in December

1979 as a nullity by reason

of the failure to

comply with the provisions	of Rule 12.2 of the rules of the
fifth respondent.

3. Order that the first and fifth respondents perform and

QbSeNe the rules of the fifth respondent in respect of the said election for the position of Joint National Secretary by

(a) giving notice

of the election in the Union Journal of the

fifth respondent and circularising all branches of the

fifth respondent in accordance with Rule

12.2; and

(b)

calling for nominations accordingly; and

(c )

otherwise complying with the rules

of the fifth respondent

applicable to the said election

so far as the same may be

complied with.

4. Otherwise dismiss the application.

I N THE

FEDERAL

COURT OF kUSTRkLIA

NZd SOUTH %'ALES DISTRICT REGISTRY	No. 6 of 1980
INDUSTRIAL DIVISICN

In the matter of -

THE CONCILIATION AKD ARBITRLTION

ACT 1904

BETWEEN

RODERICK TERENCE KELLY

Appellant

and

JOHN P. DEVEREUX

Respondent

DATE OF ORDER: 13th March, 1980

WERE MADE:

Sydney

JUDCE MAKING ORDER:

Sheppard, J.

ORDER :

Application dismissed.

I N THE FEDERAL COURT OF

AUSTRALIA

NEW SOUTH WALES DISTRICT

REGISTRY

No.

7 of 1980

INDUSTRIAL

DIVISION

I n t h e m a t t e r o f

THE CONCILIATION L S D ARBITRATION

ACT 1904

I N THE MATTER of an appl ica t ion

ODERICK TERLhlCE KELLY for an Inqui ry

i n t o a n e l e c t i o n i n

TAE

AYALGAMATED

METAL WORKERS' AND SEIPWRIWTS' I,

'K1 ON

DATE OF ORDER:	13 th March, 1980
WHERE MADE:	Sydney

JUDGE MAKING ORDER:

Sheppard, J.

ORDER:

Appl icat ion

dismissed.

Cert i fy ,

pursuant

t o s.168(2)

the Conc i l i a t ion

and

Arb i t r a t ion

Act

1904,

t h a t t h e a p p l i c a n t

ac ted reasonably in apply ing

for

the

inqui ry .

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	Nos. 3, 4 , 6 and 7 of 1980
INDUSTRIAL DIVISION

In the matter

of -

THE CONCILIATION AND ARRITRATICN

ACT 1904

BETWEEN

HENRY EDWARD

'N'ILSON

Appellant

and

JOHN P. DEVEREUX & CRS.

Respondents

BETWEEN

ADRIAN HART

Appellant

and

JOHN P. DZVEREUX & ORS.

Respondents

BETWEEN

RODERICK TERENCE KELLY

Appellant

and

JOHN P. DEVEREUX

Respordent

11th March, 1980

SHEPPARD, J.

JUXMENT

In this matter

I have reached

a firm conclusion as to

what the outcome of the argument which has been presented

should be.

I would have preferred to reserve my decision

in order to express what

I am about to say

little more

elaborately than will be the case but the matter has

a degree

of urgency about

it and I think it important that the parties

know my decision as soon

as possible.

The proceedings that are before me are three applications

by members of The Amalgamated Metal Workers' and Shipwrights'

Union made pursuant to

s.141 of the Conciliation

and Arbitrstion

Act 1904 and an application for

an inquiry

made pursuant to

s.159 of the Act.

The applications raise questions as t3

whether steps taken in connection with the holding

of an

election for the office of one of the joint national secretaries

of the union were in accordance with the union's rules. Wnen

the matters were called

on for hearing this morning

Mr. McHugh

of senior counsel for two of the applicants suggested that

the proceedings might be shortened

if argument were

to take

place upon a preliminary question. The question which he formulated was whether the provisions of rule 12.2 of the

union rules requiring

a notice of election to be placed

the union journal was complied with and	if not what was the
consequence of such non-compliance.

Counsel f o r the returning officer

of the union

and the

union itself agreed with the course proposed

by Mr. McHugh. It

was opposed by counsel

for t-ir. Kelly, but having heard

argument I decided that

I should proceed at least to take

evidence and hear argument

on the point. Having done

I am satisfied that the course proposed was

an ppropriate

one and that

I should now do what

I was originally asked

do by Mr. McHugh and Mr.

Shaw, namely, to make

an order

pursuant to Order

29 of the Rules of this Court. Accordingly

pursuant to rule

2 of that Order

I make an order for the

decision separately

of the question earlier formulated.

The evidence which it

s necessary to consider

in order

to decide the question

is contained in an

agreed statement

of facts read on

to the transcript and

in some four documents

which were tendered.

In brief, the facts establish that the

membership of the union is in excess of

160,000 members.

regularly publishes two documents to members each

of which

is described as a journal. The first of these is known an the union's monthly journal. Twenty-five such journals are sent to each of 107 branches, a total of 2,675 copies, and

two journals are sent to each of

7,500 shop stewards,

a total

of 15,000.

That makes the circulation

of the monthly journal

in round figures some

18,000.

The other publication

entitled "Amalgamated News", and

is described, immediately

under its title, as, "Official Journal of The Amalgamated

Metal Workers and Shipwrights' Union". Every union member

receives a copy of the publication Amalgamated News at least

once each quarter, and

on occasions up t3 nine times per year.

The rule which

is In question is, as I have indicated,

rule 12.

It I s headed, "Election of Full Time National

and proceeds:

H1. The National Council shall determine the date for election to these positions. (The expression .these positions1I refers to the positions in the heading. The office of Joint

national secretary

is one of the positions

referred to therein.).

2. The National Returning Officer shall by

notice in the Union Journal

and circular to all

Branches inform members of the opening of nominations for these positions in time to com-

ply with the provisions of Rule

The date for the receipt of nominations

and acceptance shall be decided by the National Returning Officer, and such dates shall be fixed

having in mind the provisions of Rule

The National Returning Officer shall also

arrange for a supply

of prescribed nomination

forms to be available for Branches.

He shall notify the Joint National

Secretaries of the result of

all elections for

National full-time positions.Il

It is common ground that no notice of the electlon published in either of the journals

was

o r publications to which

I have referred. The first part of the question formulated

by Mr. McHugh must therefore be answered in the negative. The

rule was

not complied with, in that

no notice of the clection

was placed

In any document

o r any publication which could

described as the union journal.

It is unnecessary to decide,

in the view that

I take of the matter, which of the publications

should be regarded

as the union journal for the purposes of

rule 12, but I think that there

I s a serious question whether,

In the light of the fact that the publication which

goes to

every member

is described as the official journal of the unicn,

it is not that document rather than the monthly document

which more appropriately fits the description of union

journal where used

in the rule.

That being my conclusion

on the initial part of the

question, I proceed to the second part of it which asks, in

effect, "What is the consequence

of the failure to publish

in the journal notice

of the election?" What has to be

determined is whethep the failure

to comply with the rule

is fatal to the validity of the steps which were taken

for

the purpose of holding the election. The answer to that

question depends upon the intention

of those who made the

rule as gleaned from the words which are used

in it.

I have been referred to

a number of authorities decided

in the Commonwealth (later the AUstrali€in) Industrial Court

(in industrial matters the precursor

f this court) which

suggest that the rule of construction to

be applied in order

to ascertain the intention of the draftsman

of the rulc- is

that which

is so often applied when not dissimilar questions

arise in the field of statutory interpretation, namely,to

determine whether the provisions

in question are mandatory

imperative on the one hand,

or directory on the other. There

are countless dicta

in many decided cases which provide

guidance on how this task should be approached.

I refa- to

Maxwell on Interpretation of Statutes, 12th edition,pp.314-322.

I must confess, until

I read the judgments to which

shall refer in

a moment, that

I had some reservation

thinking that such

a rule of construction could be applied

what is in reality a document

of a contractual nature as

distinct from a statute

o r statutory instrument.

I say that,

notwithstanding that the rules must comply with certain

the provisions

of the regulations made pursuant to the Act.

Before the Industrial Court decisions there had been

decided in the High Court two cases involving questions as

to the consequence

of non-compliance with union rules. The

firsr; of these cases

is known as The

Trmways Case (No.2)

19 C.L.R.

4 3 .

Criffiths C.J.

said (p.71):

It was contended that the rules

of the Association

on the faith of which

it obtained registration are

directory and not obligatory, and that

it is sufficient

that there

should be a rule, Its observance or non-

observance being. inmaterial.

I do not think

so. In

my opinion the rules on the prescribed subjects are

imperative, and any action

f The organization not

in accordance with them

is a mere nullity.',

The second case was United Grocers, Tea and Dairy Produce

Employees' Union of Victoria v. Linaker, 22 C.L.R.	176. There
Isaacs, J. said (p.182):

n . . . . .

there is a decision of this Court

in The

Tramv:ays Case NO.^), that in regard to rganizations

registered under the Act there must be

a rigid con-

pliance with the rules.

If ever there was

a case

in which that rigidity should have

been relaxed it was

that case,

and for the reasons

I there stated. But

the law

is there clearly laid down that the rules

must be rigidly adhered to. It may be worth rhile

for those concerned

to consider how far that

position is to be allowed to stand.

It may be worth

while in order to prevent such

an injustice as, in

opinion, has occurred

in this

case, f o r unions to

consider whether they

will not add to their rules

another one allowing them some elasticity, because

it may be that the decision that the rules must be

adhered to does not exclude a rule allowing some

elasticity. That may have to

be considered hereafter.

But in the

rules of thls Union

there is no

elasticity,

and, as there

is not, the appellants fail, and the

respondent, though he has gone back from his word and has failed to pay a shilling, which he twice undertook

to pay, succeeds, but purely

on a technicality."

It was the use of the words

ndirectorytl,nobligatorytf

and "imperativen, in the passage which

I have cited frcm

the judgment

of the Chief Justice in the Tramways case which

seems to have

led the judges of the Industrial Court to apply

the principles

of construction to which

I have referred.

The first of the cases cited was Mawbey

v. Thone, 15

F.L.R.

161, where it was held, despite the application of

the rule of construction, that the provisions of the rule	in
question were mandatory. The second case was Friend v.

Barnes, 15 F.L.R.

184.

Reference was made in the Judgment

in that case to Hay

v. Australian Workers Union,

53 C.A.R.

103.

In Friend v. Barnes it was held that the provision in question

was directory rather than mandatory.

Whether, as

a matter of legal approach, it be correct

to apply in this case the principles which are

so often

applied in determining whether

a statutory provision

mandetcry or directory I do not need to decide.

I would,

however, be inclined, sitting

as a single judge,

to regard as

binding upon me,

at least in a persuasive way, the dicta

which appear

in the two cases decided

in the Industrial Court,

if it were necessary to come to

a final conclusion.

I do not

think it is, because the ultimate question must always be,

what is the meaning

of the provision which is in

questim.

What was the intention of the draftsman, having regard to the

words of the rule which are

in question?

In order to answer that question, one

is entitled to

take into account the surrounding circumstances, the subject

matter to which the rule

is addressing itself, the context

which the words

in question appear and the words themselves.

The subject matter

is an election for the position of national

secretary.

The fact that it

is an election in a democratically

organized institution would of itself indicate,

s the

draftsman obviously had in mind, that notice of the fact that

an election was to be held was intended to reach,

as best as

could be done, all members

of the union,

so that each might

take part,

if he or she wished,

in the nomination of

o candidate,

or perhaps as a candidate for office.

of the rulerequires notice to the branches in the form of a circular; that was complied with. The other leg requires notice in the union journal, be it the monthly publication or the Amalgamated News. There was no compliance

One leg

at all with that provision.

Counsel for

Mr. Kelly sought to rely on the fact that

there is no evidence before me that any particular member

the union has been prejudiced as a result of what

has happened.

There is no evidence that any member wished to nominate any

other member, or wished himself

to stqnd for election for the

office, and was prevented from doing

so by the fact that

notice did not appear in the jmrnal.

But the question

one of construction.

In my opinion the absence of evidence

of prejudice is not a relevant factor to be taken into account.

If on its true

construction the rule

is mandatory, the fact

that no one was prejudiced

is not to the point, any more than

would be the

fact that someone was shown to have been

prejudiced if, on its true construction, the rule were

directory only.

What then did the draftsman intend? The words

relevantly are, "The National Returning Officer shall by

notice in the Union Journal

..... inform members of the

opening of nominations for these positions

..l1,

that is

to say, full time national officials. When one takes into

account the purpose and object of the exercise, the words

which are used and their context, it seems to me that what

the draftsman was intending was that notice should be given

in this way to union members and that,

if it were not, the

fact that

it was not meant that the union membership had not

been sufficiently

or properly notified of the election.

An alternative submission put by

Mr. McHugh, and adopted

by Mr. Shaw for the union as his primary submission, was that

although the words were to be construed

as being directory,

the result should be the same

s if they were construed

being mandatory because there has been no substantial com-

pliance with the rule. If I thought that the rule were

directory, I would conclude that nevertheless there had been

no substantial compliance with it,

so that the outcome would

be no different from that which will prevail

if the rule

regarded as mandatory. But having reflected on the matter,

I have reached the conclusion that the relevant provision of

the rule is mandatory.

It did require, in order for there

to be a valid election, publication of notice

of the election

in the journal.

That was not done. Accordingly, the

consequence is that any purported election which was held,

any purported nomination which was received and any other

step taken towards the holding of an electjon are	of no
force and effect.

There was

a submission by counsel for Mr. Kelly

at one

time which appeared to me to involve the proposition that the

applicants for whom

Mr. McHugh appears had no locus standi

to bring the proceeding because they were not

injwed @r

damaged as a result of what had happened. There may be a

question as to whether they were

or were not, but even

they can show no prejudice they have

a right to

king these

proceedings simply by reason of their membership of

the

mion .

That seems to me to be the effect of

s.141 of the Act .

fairness to counsel for Mr. Kelly I do not think that the

submission was eventually pressed

by him.

Accordingly, I determine the question which has been

posed by saying first

of all that no notice of the election

in question was published

in any publication which, within

the meaning of the rule, could be described as the union

journal.

The consequence of that failure is that there has

been no valid notice

of the election, no valid nomina-tioil

and,

to the extent that any election may have been held,	no valid
election.

I stand the matters over to 13th March at

9.3C a.m. for

short minutes of orders.

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I d r Justice Sh*p?aid

[1980] FCA 28

1 Mar 1980