Adams, Geoffrey David v Amalgamated Metals Foundry and Shipwrights Union [1984] FCA 55

Federal Court of Australia|1984-07-01

Industrial Law ~- Union rules - Conciliation and Arbitration Act, 1904 s.133(1) (db) - - Whether directory or mandatory - Whether any flexibility in statutory period - Whether court

Conciliation and Arbitration Act, 1904 s.133(1) (db), 140 Acts Interpretation Act, 1901, s.15AAa

The Queen v. Commonwealth Industrial Court; Ex parte The

Amalgamated Engineering Union, Australian Section (1960) 103 C.L.R. 368 - con.

AND: AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNICN

ORDER Judge making order: Beaumont, J. Date order made: 21 March, 1984.

I make orders in accordance with paras. 1 and 2 of the

ent ry un hd [or i Fa fa la] (a) Oo 2 intF it [o) F] 'y (3) (7) Fi tw i yay iat

AND: AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION .

REASCNS FOR JUDGMENT This is an application for declarations brought pursuant to s.140 of the Conciliation and Arbitration Act, 1904 ("the Act") alleging a contravention by the respondent of the provisions of s.133 (1)(db) of the Act. The applicant, a4 member of the respondent which is an organisation registered under the Act, applies to the Court

. "lL. An Order that Rule 2 Part F of the Rules "sof the Organisation:-

PN (a) is contrary to or fails to make a provision required by a provision of the Conciliation and

Arbitration Act, 1904, contrary to Section 140(1)(a) of the Act;

Organisation from observing law, contrary to Section 140(1) of the Act; and/or

(ce) imposes upen members of tne Organisation conditions, obl:ig- ations or yrestrictions which having regard to the objects of the Act and the pucposes of the registration of Organisations under the Act, are oppressive, unreasonable or unjust, contrary to Section 140(1)(c) of the Act.

State Secretary of the Tasmanian Branch of the Organisation on and from 10 February, 1984,

Such further or other Orders as to the Court seems rit."

Section 133(1)(db) of the Act provides, so far as is relevant, that the rules of an organisation "shall not permit a person to be elected to hold an office within the

organisation for a period exceeding 4 years without being re-elected". Robert Ridley, a member of the respondent, was declared elected unopposed to the office of State secretary of its Tasmanian branch in December 1979. The term cf his office commenced on 10 February, 19980 fora period of four years, pursuant to the operation of sub-rule 6 of rule 2 of the respondent's rules as then in force. Pursuant to the operation of the sub-rule, the term of

certified by the Industrial Registrar on 19 September

the wrovisions of the rules in force immediately before the commencement of operation of Rule 2, so far as those rules dealt with the term of office of:

National President National Secretary Assistant National Secretaries National Organisers State President tate Secretary; and Assistant State Secretary; and

the provisions of Parts A & B of Rule 2, so far as they provide for the taking of specified steps by the Returning Officer or the State Returning Officer, as the case may be, in the conduct of an election under the Part at a time related to the expiration of the term of office of the holder of the office to which the election relates;

force immediately before the commencement of operation of Rule 2 shall -

where the term of office would otherwise expire in the period between the ist January and the 30th June in any year, expire on the 30th April in that year;

(ii) where the term of office wouid OLAEBYWIES SkoiyS in the period from 'the ist July to the 21sec December in any year, 24p1rs cn the 31st October in that year;

notwithstanaing tnab the term of office oF the person elected to the office under the Rules in force immediately before the commencement of averation of Rule 2 is, as a

resuit of the provisions cr this Greater or less than 4 vears, as the case may be." (Emphasis added)

Thus, rule 2 part F of the present rules purports to extend the term of office of Robert Ridley to 30 April,

Tne applicant submits that, in sc far as rule 2 part F of the rules purports to extend the term of the office beyond a period of four years, such rule is contrary to s.133(1)(db) of the Act and is invalid: see s.140(1)(a). Alternatively, the applicant says that in so far as the rule purports to extend the term of office beyond a period of four years, and thereby to prevent the applicant from taking office as State secretary of the Tasmanian branch until 1 May, 1984, such rule imposes upon members of the organisation

unreasonable or unjust, contrary to s.140(1)(c) of the Act.

It 13 first submitted on benalf of the resooncent that whe provisions of 5.133(1)(do) are dicectory and not maneatory and that they have been substantially complied

Whether a particular statutory provision 1s mandatory or merely directory in the sense that 1t requires no more than substantial as distinct from literal compliance with its terms is, of course, a matter of construction (see Tasker v. Fullwood (1978) 1N.S.W. L.R. 20 at pn.23-4;

Pearce, Statutory Interpretation, 2nd Ed. (1981) at p.163).

In the present case, s.133(1)(db) provides that the rules "shall" not permzt a person to hold office for a period exceeding four years without being re-elscted. It was this "imperative" use of language which lei Menzies, J. in Shearer'3 case to describe such provisions as "mandatory"

(The Queen v. Commonweaith Industrial Court; Ex parte The

Amalaamated Enagineering Union, Australian Section (1960) 103 C.L.R. 368 at p.387).

But the question remains of identifying the precise requirements of s.133(1) (db). In other words, does it call for a maximum term of four years and not a day more (in the sense of time being of the essence) or is there room for implication in the provision to give it some flexibility in terms of ~ time if, fcr exampie, " convenience and the desirability of avoidance of expense call for a departure

In my opinion, the language of s.i323(1)'db) admits

or no other interpretaticn than thea requirement of a tern not exceeaing four years in duration. In my view, it is not possible to the general

kind now contended for, to refuse relief claimed under s.140

(see also Leveridae v. Shon Distributive & Allied Employees' 8 9

Maher (No.1) (1978) 35 F.L.R. 197 at p.247; Cook v. Crawrord

(1982) 43 A.L.R. 83 at pp.14S-51; Weight v. McLeod,

unreporte Full Federal Court 28 November, 1982 Smithers, dU at p.21; per Evatt and Northrop, Jo pp. 15-17)

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Judgment (46 paragraphs)