Allen, Francis & Anor v Sideris & Ors [1984] FCA 252

KENNETH VINCENT HALL, JOHN PADDY FRENCH, N.G. PARKER, BILL ETHELL

AUS I C S__& JOINERS I YERS AND STONEWORKERS INDUSTRIAL UNION OF WORKERS

No. WA 3 of 1984 FRANCIS ALLEN and LIE SEMPLE PARK Applicants

THE BUILDING WO: S_INDUSTR UNION OF AUSTRALIA First Respondent

THE _WESTERN AUSTRALIAN CARPENTERS & JOINERS _BRICK~ LAYERS AND STONEWORKERS INDUSTRIAL UNION OF WORKERS

McDONALD, ARNOLD CURRIE, HUGH HAMILTON, BEN CARSLAKE, ROD DRIVER and ALFRED ZEENO

R. MARCHANT, G. FERGUSON, T. MORRISON, W. GABLES, L.

STRUTZENBERGER, J. PINCIRO, I. SMITH, M. O'LEARY, J. TAYLOR and D. ETSENHAMMER

By consent these two matters were heard together. It is

appropriate that there be one set of reasons for judgment though

separate orders are required. Each matter concerns a rule nisi granted under the provisions of the Conciliation and Arbitration

In 1974, some years after the decision in Moore v. Doyle (1969) 15 FLR 59, the late Mr. Justice J.B. Sweeney undertook an inquiry into the systems of registration of organizations of

employees and employers under federal and state legislation. In

his Report of the Committee of Inquiry on Co-ordinated Industrial Orqanisation, his Honour commented at pp.26-27:

"The present registration under State Acts of branches of federal organisations being invalid, a serious position arises.

Moreover, it is clear that the problems involved in conducting a shadow body or in trying to conduct the affairs of two corporations as if they were one have led to extreme difficulties.

If there can be an effective scheme whereby one organisation can represent its relevant

members in both State and federal jurisdiction so as to allow both systems

properly to function, that is clearly preferable to the present uncertainties and doubts".

It 18 with those problems, uncertainties and doubts that these two applications are concerned. The affairs of the Building Workers Industrial Union of Australia ("the BWIU"), an organization under the Act, have been before this Court several times since early 1983. Ina judgment delivered on 12 March 1984, refusing a claim for interlocutory relief in No. WA 3 of 1984, I sketched the history of earlier proceedings and I shall not repeat what is said there. However, for a proper understanding of the issues now before the Court, some reference to the identity of the

The position of the persons named as applicants and respondents is best understood by reference to the various bodies before the Court. I have already mentioned the BWIU. It has a branch in this State ("the Branch"), the correct name of which is

The Western Australian Carpenters and Joiners, Bricklayers and

Stoneworkers Industrial Union of Workers, a Branch of the Building Workers Industrial Union of Australia. More accurately, the BWIU is said to have a branch in Western Australia, for the existence of a branch is an issue in these proceedings. There is an industrial union registered under the provisions of the Industrial Arbitration Act 1979 (W.A.), the correct name of which is The Western Australian Carpenters and Joiners, Bricklayers and

Stoneworkers Industrial Union of Workers ("the State Union").

Francis Allen and Leslie Alan Semple Park are the applicants in each of the matters before the Court. Each isa

member of the BWIU. Subject to questions arising as to the existence and identity of the Branch, each is a member of the Branch; Mr. Allen ais its secretary and Mr. Park its assistant

In No. WA 24 of 1983, the persons named as first respondents are persons who, until 1 January 1984, constituted the committee of management of the State Union and of the Branch. To be precise, they comprised certain members of those bodies. George Charles Stanley Rogers, Evan Thistlewaite and J.P. Withnall, who were originally among the first respondents, were removed from the application at the instance of the applicants. Their interests are similar to those of the applicants. The second respondent is the State Union. The BWIU was granted leave

In No. WA 3 of 1984 the first respondent is the BWIU. The second respondent is the State Union. The third respondents are members of the national executive of the BWIU. The fourth respondents are members of the committee of management of the New South Wales branch of the BWIU. No relief is now claimed against them by the applicants; their involvement sprang only from the fact that as a matter of administrative convenience they maintained records of the members of the BWIU in Western

Because it was thought that the joinder of a State registered union as a party might involve a matter arising under

the Constitution or involving its interpretation, notice was given

to all Attorneys-General in accordance with Order 51 of the

Federal Court Rules. When the hearing commenced, counsel appeared for the Attorney-General of the Commonwealth but said that the Attorney did not wish to intervene. Counsel was given leave to

Each rule nisi seeks the performance of rules of the BHIU pursuant to sub-s.141(1) of the Act which authorises an application by a member of an organization. Sub-section 141(1G) provides that an order under the section "may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules". The jurisdiction of the Federal Court is expressed, not by reference to any subject matter, but as "Jurisdiction to hear and determine an application under

The rule nisi in No. WA 24 of 1983 is largely concerned to prevent the handing over of property, real and personal, to the State Union, on the ground that the property belongs to the Branch. The rule nisi in No. WA 3 of 1984 is largely concerned to restrain the BWIU and its national executive from recognising the State Union as the Branch and to restrain the State Union from

using in connection with its name, particularly in relation to any

matter published by it, any words such as "Building Workers Industrial Union of Australia", "Building Workers Industrial

Union" or "BWIU" suggesting that the State Union is the Branch.

The issues between the parties have, to a large extent, been clarified by points of claim filed by the applicants and points of defence filed by the respondents. Mr. Gethin appeared for the applicants. Mr. Rothman appeared for the BWIU, its national executive and the committee of management of its New South Wales branch; Mr. Schapper appeared for the State Union and for those members of the committee of management to whom reference has been made. Although all respondents were concerned to resist

the orders sought by the applicants, there were some matters on

which the State Union took a different stand from the BWIU and its

national executive. I shall refer to these matters in due course.

The rules nisi raise quite difficult questions of fact and of law, including the jurisdiction of this Court to deal with

some of the claims made by the applicants and its power to make

orders affecting a state registered union. A number of witnesses

gave evidence and a plethora of material was tendered as exhibits.

To reach any conclusion on the relationship between the BWIU, the Branch and the State Union, it is necessary to say something about the history of the State Union and of the

The preface to its national rules describes the BWIU as "a union formed by the amalgamation of carpenters and joiners, bridge and wharf carpenters, bricklayers, stonemasons, tilelayers, roof slaters and tilers and an association with the Operative Plasterers' Federation of Australia". Its registration as an organization under the Act goes back many years, well before the events giving rise to the present applications. But it 1s relevant to note that in 1948 the BWIU was deregistered as an organization and it remained deregistered until 11 September 1962.

Some reference to the national rules of the BWIU and its branch rules for Western Australia is necessary but this is best understood in conjunction with an outline of the history of the

The State Union (The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers) was registered in the Industrial Commission of Western Australia on 10 April 1968 and it has remained registered by that name ever since. It is the result of an amalgamation; the unions which participated in the amalgamation were The Western Australian Amalgamated Society of Carpenters and Joiners' Industrial Union of Workers and The Operative Bricklayers and Stoneworkers Industrial Union of Workers, W.A. The rules of the amalgamated body have remained unchanged since 1968 save that in 1983 rule 48 (requiring financial membership for at least 3 years as a condition of eligibility for election as a State Officer) was disallowed by the Industrial Commission. There is potential for confusion in that the rules of the State Union refer throughout, not to "the Union",

but to "the Branch". Rule 1 defines "Branch" to mean "The Western

Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a branch of the Building Workers' Industrial Union of Australia". The reference to "a branch" must be taken to be merely descriptive, since the name of the State Union appears in rule 2. But I think this has served to encourage the use of the composite expression by the State Union as if it

When the amalgamated body sought registration in the

Industrial Commission in 1968, its rules contained this provision:

"211. The Branch shall be incorporated with and be a Branch of the Building Workers Industrial Union of Australia (hereinafter called "the Union") - an organisation of employees registered as such under the provisions of the Commonwealth Conciliation and Arbitration Act.

Membership of the Branch shall be synonymous with membership of the Union and admission to, or cessation of, membership of the Branch shall constitute admission to or cessation of membership of the Union except where the admission to, or cessation of, membership of the Branch results from the transfer of

Such of the Rules of the Union as were registered under the provisions of the Commonwealth Conciliation and Arbitration Act on the first day of May, 1961 (a copy of which Rules is filed with the Industrial Registrar of Western Australia) shall be incorporated in these Rules and shall he applicable to the Branch and its members except to the extent that any such Ruies are inconsistent with the Act or with these Rules in which case the Act and these Rules shall

The policy of the Commission was against acceptance of

rules in industrial unions that incorporated the rules of other

bodies by reference. In consequence rule 211 was deleted before

The rules of the Western Australian Branch of the BWIU present a rather more complicated picture. In 1963 the federal conference of the BWIU resolved to establish a branch in Western Australia to be known as the Western Australian Amalgamated Society of Carpenters and Joiners' Industrial Union of Workers, which was the name of the state registered union (strictly speaking, "The" was part of its name). The conference also

resolved to adopt the rules of the state registered union as its

However on 1 October 1964 the Industrial Registrar of the Conciliation and Arbitration Commission refused registration of those rules. Thus there were no branch rules for Western

Following the amalgamation of the two state registered unions in 1968, the BWIU presented the rules of The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers for registration as its branch rules for Western Australia. With a few amendments made at the instance of the Industrial Registrar, those rules were registered in the

Conciliation and Arbitration Commission in 1969. Notwithstanding their registration, Mr. Rothman argued that they had not been

adopted in accordance with the national rules of the BWIU and were invalid. I shall return to that submission later in these

There were amendments to the branch rules in 1976 and 1979. Subsequently the rules of the Western Australian Branch were rewritten ina form known as the bluebook. At first the Registrar of the Conciliation and Arbitration Commission refused to register the rewritten rules on the ground that in some respects they did not comply with the provisions of the Act. It was not until 11 May 1982 that the rules registered in 1969 were deleted and the bluebook registered in the Conciliation and Arbitration Commission, thereby becoming the registered rules of the Western Australian Branch of the BWIU. By rule 2 of the bluebook the name of the Branch is The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial

Union of Workers, a Branch of the Building Workers Industrial

The national rules have been amended from time to time

but it is unnecessary to make express reference to those

At this stage I am attempting to do no more than outline the history of events. The legal consequences of what occurred are matters' to be considered later in these reasons. Going back somewhat in time, on 25 June 1957 an agreement was made between the BWIU and the Western Australian Amalgamated Society of Carpenters and Joiners Union of Workers. At that time, as mentioned earlier in these reasons, the BAWIU had been deregistered. The other party to the agreement was of course one

of the two state unions that became amalgamated in 1968. The

parties to the agreement agreed to establish an association to be known as "The Building Workers Industrial Association of Australia", the principal object of which was expressed to be "the formulation and implementation of a common policy throughout Australia in respect of the terms and conditions of employment of workers in the building industry generally and of any section thereof particularly" (cl.l(a)). Clause 2 of the agreement

contained a covenant by the BWIU that while the association

"(a) it will not without the consent of the State Union at any time whilst the State Union shall remain registered under the provisions of the said Western Australia statute and not be constituted as the Western Australian branch of the Federal Union form or seek to form a branch of the Federal Union in the State of Western Australia or permit the affiliation with it of any union association or organisation registered or operating in the State of Western Australia to which members of the State Union are or may be eligible to belong as full members or otherwise.

(c) if at any time hereafter the State Union shall apply for registration as an organisation under the provisions of the said Commonwealth Statute it will not lodge an objection to such application

s0 long as' the rules and regulations of the State Union at the time of such application restrict the membership of the State Union to persons otherwise qualified who are employed in the State of Western Australia and have been so employed for a period of not less than 3 months".

For its part the state registered union covenanted that

objection to any application made by the Federal Union for registration as an

Statute or under any other Statute of the Commonwealth of Australia under

Mr. Clancy, the national secretary of the BWIU, has been associated with that body for many years. He recalled the making of the agreement in 1957 and said that thereafter the state

registered union paid to the BWIU a capitation fee.

On 24 September 1963 a further agreement was made. By this time the BWIU had become registered again; The Western Australian Amalgamated Society of Carpenters and Joiners Industrial Union of Workers continued as a state registered union. By that agreement the BWIU undertook to establish a branch in Western Australia and to constitute the state registered union as its branch. The agreement further provided that the state registered union would act as the branch of the BWIU in Western Australia and that the BWIU would forthwith take steps to constitute the state registered union its branch and amend its rules to provide for the admission of members of the state registered union as members of the BWIU without payment of entrance fees. As mentioned earlier, federal conference then adopted the rules of the state registered union as the rules of its branch in Western Australia. Pursuant to the agreement, it

amended its national rules to permit a member of the state

registered union to become a member of the BWIU without payment of

any entrance fee. See r./(vi) of the national rules. The state

Mr. Clancy described the 1963 agreement as a "logical

"Our intention as a union has been to try to bring about one union in the industry, that has been our declared policy for a long time, and we saw this as a logical development towards maintaining the position of one organisation in Western Australia covering the carpenters and joiners and the Classifications it covered".

Mr. Clancy said that, at the time of the two agreements,

there were discussions between officers of the BWIU and of the

state registered union in regard to the ownership of property.

"We set out to assure the Nestern Australian branch that the federal body had no intention

of seeking by the arrangement with them to take control of any property they may have. Whether it was expressed in the agreement I

am not sure but we made it absolutely clear that the property of the Western Austraiian

as being the property of the state registered union".

Again, the implications of what was done in 1957 and 1963 remain to be considered. But it is apparent that, neither before nor after the amalgamation in 1968, did the state registered union differentiate between state union and branch of the federal organization in terms of its meetings and records.

The State Union has filed returns in the Industrial Commission in

its state registered name. Returns filed in the Conciliation and Arbitration Commission, as tendered, bear the name of the State Union though sometimes with the addition "(W.A. Branch)". And,

until 1983, though separate nomination forms were prepared for

state union and branch for the purpose of elections, only one election was in fact conducted on each occasion. Each person returned to office, whether by default or as the result of an election, was returned to the corresponding offices in union and

Mr. Clohessy, now the secretary of the University Salaried Officers Association but formerly an office holder in the State Union and its precursor, said that in 1957 when federal

officers visted Western Australia, Mr. Purse, one of those

",.. advised us that it was necessary to have a@ number of applications made on BWIU proposition cards and I think about 20 of us who were officers and some full-time officers and some part-time officers, chaps on the job

• we filled in about 20 of these federal cards at that stage".

Thereafter, said Mr. Clohessy, the proposition and admission form used by the State Union was amended. This is borne out by several forms tendered 1n evidence. The earlier forms were

headed "Western Australian Amalgamated Society of Carpenters and Joiners Industrial Union of Workers". One for 1965 was headed "Western Australian Amalgamated Society of Carpenters and Joiners

Industrial Union of Workers State Branch BWIU". At a later stage,

no doubt following the amalgamation in 1968, the form was headed

"The Western Australian Carpenters and Joiners, Bricklayers & Stoneworkers' Industrial Union of Workers; State Branch BWIU". That is the current form. It appears that only one register of

members was maintained, being the register of members of the State

It is now necessary to say something about various items

of property that have featured in these proceedings.

Over the years the affairs of the State Union and the Branch have been conducted, first at 102 and then at 108 Beaufort Street, Perth. In 1959 there was a transfer to Carpenters House Pty. Ltd. of the property at 102 Beaufort Street. That company was incorporated at the instance of the state registered union which was its major shareholder. About 1967 that union decided to rebuild on the site, with financial assistance from the Commonwealth Savings Bank of Australia. For various reasons, some connected with taxation and some with the requirements of the bank, the land was transferred into the name of The Western Australian Carpenters and Joiners Bricklayers & Stoneworkers Industrial Union of Workers on 19 December 1968. The State Union executed a mortgage over the land to the Commonwealth Savings Bank

The rebuilt premises were occupied by the State Union and by several tenants. All paid rent including the union. Rent

was paid into an account known as the Henley House Account (named

after a former president of the union) and from that account monies were paid in reduction of the mortgage. From the certificate of title tendered in evidence, it would appear that the mortgage is still on foot and that in 1969 and 1974 further

In 1974 adjoining land at 108 Beaufort Street became available for purchase. On 12 August 1974 The Western Australian Carpenters and Joiners Bricklayers & Stoneworkers Industrial Union of Workers became the registered proprietor of that land. Of course by then the amalgamated union had been in existence for some years. That purchase was also financed by the Commonwealth Savings Bank which took a mortgage over the land. When 108 Beaufort Street was bought, it was occupied by the Aboriginal Medical Service. Rent was paid into the Henley House Account from which loans from the Commonwealth Savings Bank were repaid. Some time later the State Union moved into occupation of 108 Beaufort Street together with some other tenants. The property at 102 Beaufort Street is presently occupied, either entirely or

substantially, by the Library Board of Western Australia.

In an affidavit filed in these proceedings Mr. King, the manager of the Commonwealth Savings Bank at its 86 James Street,

Perth branch, deposed to the existence of four accounts. They

1. Western Australian Carpenters and Joiners Bricklayers and Stoneworkers Industrial Union of

Workers State Branch BWIU being account number 900-427.

2. Western Australian Carpenters and Joiners Bricklayers and Stoneworkers Industrial Union of Workers State Branch BWIU Long Service Leave

3. Western Australian Carpenters and Joiners Bricklayers and Stoneworkers Industrial Union of

Workers State Branch BWIU being account number 090-188.

4. Western Australian Carpenters and Joiners Bricklayers and Stoneworkers Industrial Union of Workers State Branch BWIU Henley House Property Account being account number 901-745.

Mr. King's affidavit also refers to account number 090-053 which apparently is an account held with the Commonwealth Savings Bank but not at its James Street branch.

There are several motor vehicles - a Chrysler Valiant station sedan, a Holden Commodore sedan, and two Holden Torana sedans. Originally these vehicles were in the name of "Western Australian Carpenters' and Joiners' Bricklayers' and Stoneworkers Industrial Union of Workers. State Branch B.W.I.U.". As a result of the disputes that have culminated in these proceedings, registration of these vehicles was transferred by the State Union into the name of "The Western Australian Carpenters and Joiners

Bricklayers and Stoneworkers Industrial Union of Workers".

There are other items of property, in particular office furniture and equipment. Those items, Mr. Clohessy said, were bought by the State Union. It may be that, in accordance with the practice followed in recent years, any such items were acquired in the name of Western Australian Carpenters and Joiners Bricklayers and Stoneworkers Industrial Union of Workers, State Branch BWIU. But I have no evidence to enable me to make any express finding in

What does emerge is that although the State Union used its correct names for some dealings, particularly for registration of land where its common seal was required, over the years more and more the addition "State Branch BWIU" was used in transactions. Strictly speaking, the addition of those words did not identify the body in question as either the State registered

union or the Western Australian Branch of the BWIU.

The matter of award coverage has some relevance in these proceedings. The National Building Trades Construction Award came into force in 1975 but, as a result of an application under para.41(1)(d) of the Act, it did not extend to Western Australia until 1976. There was evidence from Mr. Young, an industrial officer with the State Union, that although there are many named respondents to that award, there are very few persons who are members of the union and branch to whom the award applies. The

reason is that, although the principal building contractors in

this State are respondents to the federal award, they employ very few workers. Most of the work on large construction sites is done

by sub-contractors whose employees are governed by state awards.

There was tendered through Mr. Young a list of the awards to which the State Union was a party, either in its own right or by virtue of its membership of the Building Trades Association of Unions of Western Australia. In all 12 awards are mentioned, 7 of which are building trades awards and 5 of which are iron ore production and processing awards. The real significance of the National Building Trades Construction Award for Western Australia, it would appear, is that it sets standards of wages and other conditions which are then mirrored in state awards. For this reason, workers on building sites may give little thought to whether they are working under a federal or

I shall now say something of the events giving rise to the present proceedings. Most of this history is set out in my earlier judgments, to which reference has been made. Elections were held in November 1983 for offices under the rules of the State Union and the rules of the Branch. The former were

conducted under s.69 of the Industrial Arbitration Act 1979 (W.A.) and the latter under s.170 of the Conciliation and Arbitration

Act. Unlike previous elections, there was no precise correspondence between the persons elected to comparable

positions. Positions were contested by factions and differing

Councillors from Hall Geraldton Zone Rullo Councillors from Addy Northam and Northern Wellington Wheatbelt Zone

The most important difference, so far as these proceedings are concerned, is that in the branch election Mr. Allen, one of the applicants, was elected branch secretary and Mr.

Park, the other applicant, was elected branch assistant secretary.

Neither was elected to office in the state election.

Mr. Boatswain, the assistant national secretary of the BHIU, has instituted an inquiry into the branch election but it is only recently that steps have been taken towards a hearing of the

inquiry. It is still the subject of directions by the Court.

The applicants immediately encountered resistance from officers of the State Union when they sought to perform their duties as branch secretary and branch assistant secretary. They were refused access to the premises of the State Union at 108 Beaufort Street and refused access to vehicles (indeed it would seem that one of the vehicles referred to earlier was taken from them). Attempts by them to contact workers on building sites were

countered by approaches to the workers on the part of Mr.

Henderson, the secretary of the State Union, and officers of the

Mr. Allen was invited to attend a meeting of the national executive of the BWIU in Sydney on 2 and 3 February 1980. He attended as a visitor though, in his contention, he should have attended as an executive member by reason of his position as secretary of the Branch. There were some differences in the evidence of Mr. Allen and Mr. Clancy as to what exactly took place at the meeting but it is unnecessary to make precise findings in that regard. It is apparent that proposals for resolution of the situation in Western Australia were canvassed but none was

In May 1984 the national executive convened a special

national conference to be held in Sydney on May 21. The agenda

"1. Consideration of the events concerning the WA Branch and discussion of possible causes of action to resolve the situation".

Mr. Park, who had been elected as a delegate to national conference at the 1983 election, received an invitation to attend

the conference. So too did Mr. Allen, presumably by reason of his

Position as secretary of the Branch though this is not clear.

On May 22 the special national conference resolved "to

close forthwith the Western Australian Branch of the Building

Workers Industrial Union of Australia which operates under the name The Western Australian Carpenters and Joiners Bricklayers and Stoneworkers Industrial Union of Workers, a branch of the Building

Mr. Park and Mr. Allen gave evidence as to their reasons for not attending the meeting and there were tendered letters and telexes passing between them and officers of the BWIU. I make no comments on those reasons or on the circumstances in which the conference met and resolved to close the Branch. Mr. Allen and Mr. Park have obtained a rule nisi in No. WA 12 of 1984 calling

for the members of the national executive to treat as null and

void the decision of the special national conference. As that matter has been listed for hearing, it is better that I express no views about what took place concerning the meeting. I simply note that there has been a resolution of the special national

conference closing the Branch but that the resolution is under

Against that rather lengthy background I turn to the

After some early skirmishings, it became clear that none of the respondents asserted that the State Union (The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers) was itself the Western Australian

Pursuant to sub-s.60(1)_ of the Industrial Arbitration Act (W.A.), a society "shall, upon and during registration, become

and be, for the purposes of this Act, a body corporate by the registered name, having perpetual succession anda common seal »..". Thus") since 1968 the State Union has been a body corporate

Section 71 of the Industrial Arbitration Act attempts to meet some of the probems raised by the existence of state unions and state branches of federal organizations. It identifies what it calls a "Counterpart Federal Body" which, in effect, means the Western Australian branch of a federal organization the rules of which relating to membership and offices are the same as the rules of a state registered union. Where the rules of a union are altered to provide that each office in the union may be held by the person who, in accordance with the rules of the union''s counterpart federal body, holds the corresponding office in that body, the Registrar of Industrial Unions shall issue a certificate that the provisions of the Act relating to elections for office do not apply to offices in that union and that the persons holding office in the union in accordance with the rules just mentioned shall be the officers of the union. Sub-section 71(6) provides

that a union to which such a certificate has been issued may make

an agreement with the organization of which the union's counterpart federal body is the branch relating to the management and control of the funds or property, or both, of the union. With

the approval of the full bench of the Industrial Commission, the

Registrar shall reqister the agreement as an alteration to the

No application under s.7l has been made by the State Union. I mention it as an example of efforts that have been made to meet the problems arising from the existence of a state union

There is an attempt to come to grips with the problem in

s.136A of the Conciliation and Arbitration Act. Sub-section 136A(1) reads:

organization to do so, it may participate in the systems of conciliation and arbitration

or of wages boards or like systems established under the law of a State, and for

that purpose a branch of an organization may become registered under a law of a State so

long as that registration does not involve the branch in becoming incorporated, or

otherwise becoming a legal entity, under the law of a State".

In the light of the provisions of the Industrial Arbitration Act (W.A.), a branch of an organization may not become registered under that Act without becoming incorporated. No one suggested that this had happened and indeed Mr. Schapper relied upon 8s.136A in support of his submission that a branch could not be registered in Western Australia as a union. Equally, I take it, he would argue that the existence of a body incorporated under State legislation is inconsistent with the status of that body as

Since Williams v. Hursey (1959) 103 CLR 30 it is well established that the branch of a federal organization has no legal existence as a juristic person separate from that of the organization itself. The difficulties referred to in Moore v. Doyle in the way of treating a state union as a branch of a federal organization have been increased by s.136A to the point where such a proposition cannot be maintained. However, one still has to ask the question - is there a Western Australian branch of the BWIU? If there is, the next question is - how does one recognise that branch? And, in the light of the elections held in November 1983, a further question arises - when Mr. Allen and Mr. Park were elected branch secretary and assistant branch secretary,

By way of introduction to his final address, Mr. Schapper submitted that The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers exists both in law and in fact. Referring to Moore v. Doyle, he acknowledged that registration of an industrial union is evidence but may not be conclusive evidence of its continued existence. In

"It is true that mere continued registration does not necessarily preserve the existence of a trade union which is registered under the New South Wales Acts. If it appears that a trade union has in fact ceased to function, has lost its members and has no officers or funds, the proper inference may be that it has ceased to exist".

As I understand it, registration under the relevant New South Wales legislation did not confer corporate status on a union. Different considerations may well operate where, as under the Industrial Arbitration Act (W.A.}, registration ensures corporate existence. But I need not spend time on this aspect for it is clear that in fact the State union has operated since its inception in 1968. It has filed returns with the Industrial Commission; it has obtained awards under state industrial legislation and enforced those awards; it holds property and

generally it has performed those functions expected of a union.

The respondents submit that in law there is no branch in Western Australia of the BWIU. They say however that, by virtue

of the agreement made 24 September 1963, the BWIU appointed the State Union to act as its branch in this state. This, they say, did not and could not disturb the corporate status of the State Union; it simply meant that there was a body in Western Australia to which the BWIU could look to act on its behalf in matters relating to the affairs of the BWIU in this state. In accordance with the agreement the BWIU took steps to amend its rules to provide for admission to membership of members of the State Union without the payment of entrance fees and also to provide that, for the purpose of election to office in the BWIU or its branch, membership of the State Union shall be counted as membership in the BWIU. None of this, in the respondents' submission, constituted the corporate body established by the Industrial

Arbitration Act to be in law the Western Australian branch of the

BWIU. The consequence was simply that the State Union was

authorised to act as the agent of the BWIU in Western Australia.

Even if these submissions be accepted, they leave some questions to be answered. In particular, what were the consequences of registration of branch rules in the Conciliation and Arbitration Commission in 1969 and 1982? Is the agreement of 24 September 1963 reconcilable with the holding of an election in November 1983 under the provisions of the Conciliation and Arbitration Act for the election of officers of the Western

The State Union says that it is not really concerned with the answers to these questions. It takes its stand essentially on two propositions. First it argues that is not, in terms of sub-s.141(1G) of the Act, a person who is under an obligation to perform or observe the rules of the BWIU. It bases that submission in part on the assertion that "person" in sub-s.141(1G) is a natural person and not an incorporated body.

That is a question which has not been finally determined. Krantz v. Maynes (1967) 10 FLR 134 at p.144. But primarily its

submission is that as a state registered union it can be under no obligation to perform or observe the rules of a federal organization. The fact that it agreed to act as the branch of the

BWIU, it says, placed it under no obligation to perform or observe

those rules. In Re Commonwealth Industrial Court; Ex parte Federated Miscellaneous Workers Union (1971) 46 ALJR 65 at p.67

Barwick C.J., with whom the other members of the Court agreed,

"There is room perhaps, in my opinion, for the view that upon its true construction s.141 would authorize the making of an order

against a person not under an obligation to perform or observe the rules of the organization if the nature of the order, including the identity of the person against whom it was made, could be seen to be relevant to securing the performance or observance of the rules of an organization by

those persons who were bound to perform or observe them.

However, having given the matter my consideration I have come to the conclusion that the preferable and correct construction of the section is that the orders the making of which s.141 authorizes are limited to orders against persons who are under an obligation to perform or observe the rules of an organization and in particular the rules for the performance or observance of which the orders and directions are being given".

The second proposition is that all property to which the proceedings relate belongs to the State Union and there is no way it can be called to account to the applicants in respect of that property in these proceedings. If the applicants contend that the State Union holds property in trust for the Branch or its officers, whoever it or they may be, that is a matter for litigation in the Supreme Court of Western Australia to determine questions of title. It has no relevance to proceedings under

Mr. Gethin, counsel for the applicants, responded in

this way. Directions for the performance or observance of any of

the rules of an organization are, pursuant to s.141 of the Act,

within the jurisdiction of the Federal Court and, by reason of 8.147, within the exclusive jurisdiction of this Court. The exclusive jurisdiction of the Court is attracted where it appears that the orders sought in proceedings could have been made by that

Court. R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; Federated Clerks Union of

Australia v. Hills (1981) 35 ALR 615. Counsel also relied upon the decision of the High Court in Fencott v. Muller (1983) 46 ALR 41, in particular the judgment of Mason, Murphy, Brennan and Deane JJ. in which their Honours held that "matter" within the meaning of ss.76 and 77° +of the Constitution refers to a justiciable controversy and encompasses all claims made within the scope of the controversy, including causes of action arising under non-federal law. Their Honours said that there is no precise formula to determine which claims are disparate and which are not, but whether the claims arise out of common transactions and facts

(not necessarily identical facts) is a sound guide. The federal

claim must, however, be substantial. It will then be appropriate and convenient, though not necessary, for the court vested with the federal jurisdiction to determine the whole of the

"... impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power". (at p.69)

Mr. Gethin referred to the decision of Beaumont J. in

Kennedy v. The Australasian Coal and Shale Employees Federation (1983) 50 ALR 735. In those proceedings the applicant initially

sought orders against the first respondent, the organization, under sub-s.144(5) of the Conciliation and Arbitration Act. It appeared that the organization would raise as a defence to the Claim against it the fact that the applicant was neither employed by nor qualified to be employed by Elcom Colliery Pty. Ltd. The applicant thereupon joined Elcom as a respondent and was then faced with an application by the company that the proceedings be dismissed as against it on the ground that the claim made and the relief sought against it were beyond the jurisdiction of the

Beaumont J. referred to Fencott v. Muller and also to Stack v. Coast Securities (No. 9) Pty. Ltd. (1983) 49 ALR 193 in which the High Court restated the limits of the jurisdiction of the Federal Court to deal with a non-federal claim in proceedings under the Trade Practices Act 1974. Beaumont J. held that once the organization elected to raise a defence that the applicant was neither employed nor qualified to be employed by Elcom, "it followed that the claims made by the applicant against the first and second respondents respectively were part of the same controversy, notwithstanding that different relief is sought

organization in respect of which performance or observance is sought (order 4 rule 15(4) of the Federal Court Rules), the Court is not confined to directions that specific rules be complied with in terms. In Barrett, referred to earlier, Latham C.J. said of a

"In my opinion, these words contemplate the giving of detailed directions for the doing of acts or observance of forbearances which

will constitute performance or observance of the rules". (at pp.156-157)

Likewise, in Gordon v. Carroll (1975) 6 ALR 579 the Australian Industrial Court ordered the return of money obtained in breach of the rules of an organization. I am satisfied that this Court may make orders moulded to ensure that the matters

complained of in an application under s.141 may be remedied.

But in my opinion the question of orders against the State Union is not truly one of jurisdiction as was suggested by counsel for the applicants. The Federal Court is not entrusted with a general supervisory role in relation to the affairs of organizations. In relation to 38.141, its jurisdiction is expressed in sub-s.141(1H) to be "jurisdiction to hear and determine an application under sub-section (1) ... ". And an application under sub-s.141(1) is for an order under the section which, in terms of sub-s.141(1G), "may give directions for the performance or observance of any of the rules of an organization by any person who was under an obligation to perform or observe those rules". The real question for determination, I think, at least so far as the State Union is concerned, is whether it is under any obligation to observe or perform the rules of the BWIU. If it is not, it cannot be made the subject of orders under s.141 because there is someone else who may be required to observe or perform the rules. In terms of the "matter" arising for

determination, it 1s the observance or performance of rules with

which the Court is concerned. It 1s taking Fencott v. Muller and Stack v. Coast Securities too far to suqgest that, in proceedings under s.141, there can be an inquiry into and accounting for property by operation of the general law. The decision of Beaumont J. in Jess v. Scott (1984) 52 ALR 393 is instructive in

In my view, whether or not the reference to "person" in sub-s.141(1G) extends to a corporate entity, there is no basis upon which the State Union may be said to be under an obligation to perform or observe the rules of the BWIU, by which I include

I accept that since 1t came into existence in 1968 the State Union has acted as the Western Australian branch of the BWIU. From its membership subscriptions, it has paid a capitation fee to the BWIU. It has filed returns in the Conciliation and Arbitration Commission as if it were the branch. It has enrolled members and those members have been treated by the BWIU as members of the federal organization without payment of any entrance fee. This has been done by force of rule 7(vi) of the national rules though it may be doubted whether that sub-rule has any ambulatory operation since it is expressed to apply to any person who, "at the date of the adoption of this clause" is a member of the State Union. The State Union has gone further and held elections for branch officers though, until 1983, there was only one election

Te nt ete a eet ape eae toner no - we F ISAS TOPE TT

I conclude that what the State Union has done has been pursuant to the agreement of 24 September 1963 and that it has assumed obligations under that agreement as the successor of the Western Australian Amalgamated Society of Carpenters and Joiners Industrial Union of Workers. There is no reason to think that those liabilities are not enforceable at the suit of the BWIU under the general law and that, for instance, the State Union could not be called upon to account to the BWIU for moneys due by way of capitation fees. But it does not follow that, because the State Union has undertaken to act as the branch of the BWIU in Western Australia, it is under an obligation to perform or observe the rules of the BWIU. Indeed, in my view the State Union is under no such obligation. If the BWIU wished to enforce the agreement of 24 September 1963, it could do so. But it would not be- seeking the performance or observance of rules, a right which in any event, so far as the Act is concerned, is confined by

Since the State Union is not a person who is under an obligation to perform or observe the rules of the BWIU, it follows that no order may be made against it pursuant to sub-s.141(1H). That conclusion is not affected by any view which may be taken of

the scope of the Federal Court's attached jurisdiction.

Likewise, though there is no doubt that the members of the committee of management are persons within the meaning of sub-s.141(1G), they are sued by reason of their positions as officers of the State Union. They too are under no obligation, by

reason of their offices, to perform or observe the rules of the

BWIU. In so far as those persons were members of the committee of

management of the branch, they ceased to hold office on 1 January

1984 and have no current obligations in those capacities.

However, in view of the evidence adduced and arguments addressed, it is desirable that I say something regarding the items of property in dispute. I shall return to this matter later

The BWIU adopted the arguments of the State Union, save to concede that "person" in s.141 may bear the meaning attached to it by the Acts Interpretation Act 1901 s.22. But it went a step

further and dealt with questions which the State Union contended

Not only did the BWIU submit that there was in Western Australia no branch, as that term is used in the Act, but it

contended that the branch rules registered in the Conciliation and Arbitration Commission in 1969 were invalid, their invalidity not

The argument was formulated in this way. The rules of a branch of the BWIU may come into existence by resolution of national conference and not otherwise. Once they come into existence, rule 27 of the national rules permits a branch to make

rules not inconsistent with the national rules. Following the

amalgamation in 1968, the BWIU sought to have the rules of the

State Union registered with the [Industrial Registrar of the Conciliation and Arbitration Commission as the rules of the Western Australian branch of the BWIU. It was successful but the resolution of federal conference had not been obtained. Therefore those rules could have no binding effect; in particular they did not constitute a Western Australian branch of the BWIU in Western Australia. Branch rules were registered in 1982 (the bluebook) and those rules were made by a rule making body viz. the national executive. But they could not remedy the invalidity hitherto

existing. There has been no branch except in the loosest sense

Unfortunately counsel did not offer any authority in support of that submission. Part VIII of the Act is concerned with registered organizations, including the consequences of registration and the operation of rules. It contains a number of provisions as to what the rules of an organization shall and shall not contain, with a power in the Court, on application, to declare that a rule contravenes sub-s.140(1). But no such application is before the Court in these proceedings. The argument was that the

Section 135 provides for the issue by the Registrar of a certificate on registration of an organization, "which certificate shall until proof of cancellation be conclusive evidence of the registration of the organization therein mentioned and that it has complied with the prescribed conditions to enable it to he

registered". But that provision of itself gives no force and

The answer to Mr. Rothman's submission is to be found in Part IXA of the Act. Section 171B renders valid all acts done in good faith by a collective body of an organization or branch or by an office holder notwithstanding any invalidity that may afterwards be discovered in the making or the alteration of a rule of the organization or branch. Section 171F deems compliance with the rules of an organization or branch after four years. Section 171G empowers the Court in certain circumstances to declare that s.171B or 5.171F shall not apply where the application of either section "would do substantial injustice having regard to the interests of the organization, members... or persons having

There is no application under s.171G before the Court and no reason why 38.171B should not operate. Whatever invalidity

accompanied the making of branch rules in 1969, the rules must be taken to have been validly made. In 1982 they were replaced by

If it be accepted that a branch of a federal organization has no independent existence and that the State Union is not the Western Australian branch of the BWIU, what can be said

There is in Western Australia a substantial number of

persons who are members of the State Union and who, through that

membership, are also members of the BWIU. They pay capitation fees to the BWIU and they participate in elections held for office

in the branch of the BWIU in Western Australia. It is true that

for the most part no distinction is drawn between their activities as union members and as branch members. But that is not uncommon

The State Union effectively carried out the business of

the branch, at least until the events following the elections in 1983, but it is not the branch. Why then is not the branch simply the aggregate of members of the BWIU in Western Australia? In Benson and Electrical Trades Union of Australia, New South Wales Branch (1962) AR 516 at p.526, the Industrial Commission of New South Wales in Court Session spoke of the branch of the Electrical Trades Union of Australia in New South Wales as "merely an

aggregate of members which is an integral part or section of the whole federation, having that degree of autonomy which is

permitted to it by or under the constitution of the federation".

The reference to autonomy must be read in the light of Para. 140(1)(d) of the Act but otherwise the description is

appropriate for the Western Australian branch of the BWIU.

In the ordinary course, questions of legal personality would not trouble the State Union or the BWIU in its activities in Western Australia. It is only because the elections held in 1983 produced differences in the office bearers of the union and the

branch that problems have arisen. Mr. Allen and Mr. Park have

been elected to office in branch elections and, subject to

anything that may arise from the pending election inquiry, they are entitled to recognition in respect of those offices. But there are practical questions of difficulty to which I shall refer

when considering the relief claimed by the applicants.

I turn now to the particular relief sought by Mr. Allen

In No. WA 24 of 1983 the applicants seek orders relating

to the possession of property including a declaration that the State Union holds the premises at 102 and 108 Beaufort Street "in trust for the Federal Union to be held by it for the use and

occupation of the State Branch of the Federal Union". The applicants also seek accounts and an inquiry as to ownership of

It is clear that the premises at 102 and 108 Beaufort Street were acquired by the State Union and that both legal and beneficial ownership vested in the union. Both properties were acquired with money from the funds of the State Union and the assumption of liabilities by that union to the Commonwealth Savings Bank under mortgages. There is no basis for a resulting trust (as to which see Napier v. Public Trustee (W.A.) (1981) 55 ALJR 1) nor is there an instance of a constructive trust. It is apparent from the evidence of Mr. Clancy and Mr. Clohessey that, when discussions took place regarding the establishment of a

branch of the BWIU in Western Australia, it was made clear that

the federal organization had no intention of taking over any assets of the state registered union. The obligation of that union under the agreement of 24 September 1963 was to act as the branch of the BWIU in Western Australia and this it has done. No doubt the State Union, as its successor, is obliged to account to the BWIU for capitation fees and it has obligations under the agreement that involve looking after the affairs of the BWIU in this State. But I am satisfied that all of the property referred to in the rule nisi and mentioned in the course of proceedings viz. the premises in Beaufort Street, accounts with the Commonwealth Savings Bank, motor vehicles and office furniture and equipment were acquired by the State Union and intended to be the property of the union, though made available by it for purposes

It is true that the bank accounts are in a name which is the name of the State Union with the addition of the words "State Branch B.W.I.U.". It is also true that the motor vehicles were, until the recent change of registration, in the name of the State Union with the addition of the same words. It may be that there is other property acquired in the same name. But that does not mean that the property in question belongs to someone other than the State Union for it is apparent that the union has for some years used the additional words "State Branch B.W.I.U." in its dealings. In Moore v. Doyle the Court adopted as "sound" submissions by counsel for the respondent that were referred to in

"He said that what was done could be reconciled with reality only if the inference

be drawn that the trade union existed from start to finish but undertook the duties of a branch of the federal union because those in charge of it thought it was a branch of the federal union. He urged that' the conduct relied upon was conduct of the trade union acting as though it were a branch". (at pp.96-97).

Those comments are apposite to the present matter. One should not lose sight of the fact that a branch of a federal organization comes into existence by reason of some action on the part of the organization; it does not spring up spontaneously.

The action on the part of the BWIU was the agreements made by it in 1957 and 1963, the adoption of branch rules and, more

generally, the way in which it has worked with the State Union over the years.

Mr. Gethin drew attention to rule 26 of the national

States of Queensland, New South Wales, Victoria, Tasmania, Western Australia and in

the Australian Capital Territory, and in such other States or places as may be decided".

He also pointed to other rules that assume the existence

of branches. But however well legal theory in this area sits with industrial reality, the answer in law is that the State Union is not the Western Australian branch of the BWIU. And, it must be stressed, neither the applicants nor the respondents have argued

No entitlement to relief has been made out in No. WA 24

of 1983 and the rule nisi in that matter must be discharged.

In No. WA 3 of 1984 the relief sought by the applicants is essentially that the national executive cease to hold out the State Union as its branch; withdraw all authority from the union to use in or in connection with its name such words as "Building Workers Industrial Union of Australia", "Building Workers Industrial Union" or "BNHIU"; recognise and acknowledge the applicants as the secretary and assistant secretary of the Western Australian branch of the BWIU; and treat as "null, void and of no effect" any agreement between the BWIU andthe State Union purporting to constitute the latter as a branch of the former. Other orders seek to direct the BWIU and the State Union to treat as "null and void and of no effect" any agreement purporting to constitute the State Union as the Western Australian branch of the BWIU; to direct the State Union to cease holding itself out as a

branch; and other orders relating to the payment of dues and to the payment of salary and allowances to the applicants by reason

Questions of jurisdiction aside, there is no justification for treating as void or as a nullity the agreement made on 24 September 1963. It was an agreement entered into for a lawful purpose viz. to permit the state registered union to attend to the affairs of the BWIU in Western Australia. It has been

As to the use by the State Union of such a description as "State Branch B.W.I.U.", Mr. Schapper submitted that when regard is had to rules 1 and 2 of the rules of the State Union, it

is lawful for the union to use such terminology in connection with its name. In terms of its rules, the State Union is I think entitled to describe itself as "a branch of the Building Workers' Industrial Union of Australia" (see rule 1). It does not follow that it is entitled to use those words as 1f they were part of its registered name. But that is not a matter for this Court; it isa matter for the Industrial Commission of Western Australia or for the Supreme Court of Western Australia. The State Union is not under an obligation to perform or observe the rules of the BWIU even if there were a rule which might be said to preclude the

State Union from using such words in connection with its name.

Equally, the order sought against the BWIU that it withdraw all authority from the State Union for the use of words such as "State Branch B.W.I.U." in connection with its name is not

an order for the performance or observance of rules of the

organization, even assuming such an order were appropriate against

the organization itself as distinct from those who constitute its national executive. That is not to say that it would not be open to the BWIU to call upon the State Union to cease the use of such

terminology and, if need be, take some action against the union in the Supreme Court of Western Australia to that end. But that is

an entirely different exercise from what is envisaged in these

Real problems surround the position of the applicants as the elected secretary and assistant secretary of the Western Australian branch of the BWIU. There is no doubt that they were

elected to such positions, subject of course to any finding

adverse to them in the election inquiry under way. Mr. Rothman conceded that, subject to that question and to his basic submission that there was no branch in existence, the applicants were entitled to recognition in accordance with the rules of the BWIU. In those circumstances it seems to me appropriate, having regard to the recent history of the affairs of the BWIU in Western Australia, that there be an order of this Court directing the members of the national executive to recognise Mr. Allen as the secretary and Mr. Park as the assistant secretary of the branch in Western Australia of the BWIU. Difficult questions then arise as to the implications of such an order. I have expressed the view that all items of property to which reference has been made are the property of the State Union. Through counsel, the BWIU expressly disavowed any claim that there was property in Western Australia belonging to it. The means by which persons have become members of the BWIU in Western Australia is by enrolment in the State Union, thus securing automatic membership in the BWIU.

There is no reason why the Court should place any obstacle in the

path of that avenue of membership which seems to have worked

This Court has no power to compel the State Union to make premises, vehicies or other facilities available to the applicants though reason and common sense would dictate that the union do so for the efficient administration of the branch and in recognition of the positions they hold by election. Nor can the Court direct the BWIU or its national executive to require the State Union to do so. But there are administrative matters such

as access by the applicants to such records truly answering the

description of records of the Branch that are capable of

Mr. Rothman submitted that no formal orders should be made in either of the rules nisi until the Court had dealt with the challenge to the decision of the special federal conference on 22 May 1984 closing the branch of the BWIU in Western Australia. I do not accept that submission but it is appropriate that counsel be given an opportunity to speak to the particular orders that should be made in No. WA 3 of 1984. In the course of their final addresses counsel directed little attention to this aspect and I think it undesirable that the Court should make specific orders without hearing from them. There will be liberty to apply as to the form of orders to be made in No. WA 3 of 1984 to give effect

I certify that this and the fortyfour preceding pages

are a true copy of the Reasons for Judgment herein of His Honour Mr. Justice Toohey