Young, D. v The Australlian Workers Union

[1985] FCA 414

Re: DIGBY YOUNG
And: THE AUSTRALIAN WORKERS' UNION
Nos. 34 of 1982 and 27 of 1983
Industrial Law
11 IR 441

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Industrial Law - registered organizations - validity of rules - construction - whether rules as amended valid.

Conciliation and Arbitration Act 1904, s. 140.

HEARING

SYDNEY
#DATE 27:5:1985

JUDGE1

On 7th December 1984, judgment was delivered in these proceedings. It was ordered that the proceedings be adjourned until 15th March 1985 for the purpose of giving the respondent an opportunity to alter its rules. That order was made pursuant to s. 140(6) of the Conciliation and Arbitration Act 1904.

1. The matter was further adjourned for the purpose of argument as to whether the alterations which have been made have dealt adequately with the defects in the rules identified by the Court in the reasons for judgment. The matter has come before me today for the purpose of determining whether the defects have been cured.

2. Some discussion occurred with Mr. Shaw, of counsel for the applicant, as to the proper approach which the Court should take to a matter such as this. It was conceded by Mr. Shaw that I should not travel outside the areas of controversy raised by the original application; accordingly I look at the amendments which have been made to the rules on the footing that the question I have to determine is whether the objections which were held to be valid are now overcome by the amendments.

3. The relevant rule amendments are as follows:
   
   In r. 4(c) the definition of members who are financial has been repealed and replaced by the following:
   
   

"(c) Members who are financial are those having paid the whole of the annual contribution prior to the 31st July of each financial year, or a member having paid contributions required by Rule 9A before the 31st of July in the first year of membership."

Rule 9A of the rules is amended by adding a new paragraph:

"A method of part payments may be approved by Branch Secretaries but such method shall ensure 50% of the annual contribution is paid prior to the 31st of July in that financial year."

A new paragraph is added to sub-r. (g) of r. 20 in the following terms:

"Provided that where a Branch Secretary has approved a method of part payments over a period which does not allow the year's annual contribution as prescribed in Rule 19 (or the contribution prescribed in Rule 9A) to be paid in full prior to 31st July in that financial year, he shall no later than 30th June in each year, forward to that member notice stating that unless the balance of the year's contributions are paid by the 31st of July, that member shall not be entitled to vote in the forthcoming election."

1. These new provisions are not without administrative problems. One method of reading the additional paragraph to r. 9A may result in the proposition that the only methods of part payments which may be approved by branch secretaries are those which involve the payment of only 50% of the annual contribution; in other words, that a method of part payment which involve the payment of 100% of the annual contribution is not authorized by the rules. That provision, however, is capable of being read as requiring a minimum of 50% of the annual contribution to be paid, and such a construction would be a sensible one in the context of the rules.

2. The new paragraph added to r. 20(g) is also productive of some difficulties. A branch secretary performing the duty which it imposes will be required to decide whether to send an account for the balance of the annual contribution over and above that owing at 30th June, or an account for the balance of the contribution which will be owing over and above that paid at 31st July in the event that a part payments scheme continues to operate with respect to a particular member. If the first alternative is chosen, and if the part payments scheme does continue to operate, a member concerned may well be called upon to pay more than is required by the account, and may be called upon to pay more than the total of the contribution or the 50% required by r. 9A.

3. If the second alternative is adopted, and if a part payments scheme does not continue to operate during the month of July in the year concerned, the member concerned may unwittingly become unfinancia1. If the branch secretary simply adopts the policy of warning members that they may be unfinancial without telling them how much they may be liable to pay, members may find it difficult to ascertain the amount of their indebtedness as at 31st July.

4. These are administrative problems. The question is whether they are so severe as to amount to a contravention of s. 140(1)(c) of the Act.

5. In my view, the possible consequence that a few members may be called upon in the first instance to pay slightly more than the annual contribution or, alternatively, that some might be unfinancial by reason of the cessation of part-payment schemes, is not sufficient to cause the rules to contravene s. 140(1)(c). The administrative problems which are revealed are not such as to amount to the imposition of conditions which are oppressive, unreasonable or unjust, having regard to the objects of the Act and the purposes of the registration of organizations under the Act.

6. Mr. Shaw did argue that the new paragraph in r. 20(g) may have the effect of requiring that even members who otherwise would only have to pay 50% of the annual contribution, by virtue of r. 9A, would be called upon to pay the whole of the annual contribution by an account sent under the new provision. That is a possible construction of the new paragraph of r. 20(g), but in my view, in the context of the rules as a whole, it is an unlikely one. There is specific reference to r. 9A in the new paragraph and it would be strange if the earlier provisions, including the new definition of members who are financial, and the provisions of r. 9A could, in the case of members making payments under part payments schemes, be entirely obliterated by a provision such as this. In my view, it is a reasonable construction of the new provisions of r. 20(g), that the account which is sent to a member only obliged to pay 50% of the annual contribution under r. 9A is an account calling on that member to pay the balance of that 50%.

7. Having construed the rules in this fashion, I find that they are not subject to the defects which were identified in the reasons for judgment given on 7th December 1984. It follows that the appropriate order is that the Rule to Show Cause in each of these proceedings should be discharged, and I propose to make that order.

8. In each of these proceedings I order that the Rule to Show Cause be discharged.