Amalgamated Society of Engineers v Smith [1913] HCA 44

Amalgamated Society of Engineers v Smith [1913] HCA 44 - HCA 1913 case summary — Zoe

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the power house of the Brisbane Tramways Company in that city. There were other members of the society also employed in the power house. In the employment of the company were a number of members of the Australian Tramways Employees' Association. A dispute having arisen between the company and the tramway men, who desired to wear, when on duty, a badge signifying their membership of their association, a strike was about to occur unless- the men were allowed to wear these badges when at their work. The Tramways Association suggested that if their members ceased work, the members of other unions employed by the company should absent themselves at the same time. This would necessi- tate a stoppage of operations at the power house, and conse- quently a stoppage of the trams. At a meeting of the District Committee of the Brisbane Branch of the defendant society held on 18th January, a resolution was carried that the committee should instruct all members of the Branch employed by the company (with the exception of the chief engineer, the plain tiff) to cease working for that company simultaneously with the tramway men, if the Tramways Association decided on a- cessation of work. The acting secretary was instructed to take immediate steps to give effect to the resolution. Next day the acting secretary wrote to the plaintiff conveying to him the decision arrived at, save that he did not inform the plaintiff that- he had been excepted from its operation. On the same evening,. the 19th, the committee again met, and the acting secretary made' a report. He produced a copy of his letter to the plaintiff, and explained his own action in omitting to inform the plaintiff that he was excepted from the decision of the committee. This action, the officer said, he had taken on finding that the officials of the Iron Workers' Institute were prepared to recommend that their members should receive the same instructions as the defendant society's employees at the power house, but only on condition that the plaintiff "be asked to come out too, if necessary." The letter sent to the plaintiff had been shown to the officials of the Tron Workers' Institute as a guarantee of good faith, The meet- ing endorsed by resolution the acting secretary's action in writing to the plaintiff in the terms adopted.

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present case. If there was nothing in the rules that warranted the expulsion of the plaintiff, he is upon that broad ground entitled to succeed, subject to his meeting the other defences, even if the course taken against him was in respect of mere procedure otherwise regular. It is admitted that he was ordered to break his contract of service with his employer and was expelled for refusing to comply with that order. It was an order to do some- thing contrary to law. It is said that his conduct in disobeying it could properly be described as "acting contrary to the society's interests." 'The order was issued to all the society's members employed by the company, and to obey it in conjunction with - them would have been to strike. A strike is not always unlaw- ful at common law. But as regards the plaintiff singly, as it was not lawful to obey, J doubt whether the society can be heard to say that the refusal to do so was contrary to its interests. However that may be, it is not within the rules a cause of expulsion that the member has acted contrary to the society's interests, 'The only place in the rules where the phrase occurs is rule XIIL, clause 7, by which a District Committee is given the power "to veto the admission, subject to the sanction of Council, of any candidate who has been excluded from a branch in the district for acting contrary to the society's interests." But this is only a power to veto an admission in certain circumstances. It does not imply a power to the District Committee to expel for that specific cause. In this rule expulsion for acting contrary to the society's interests probably means expulsion for some breach of a specific rule by conduct which in its effect is against the society's interests, for it cannot refer to a specific rule under which the member can be expelled on such a charge, seeing that no such rule exists. Indeed, in the absence of such a rule, there is nothing to show how the exclusion is to take place, nor by what authority it is to be sanctioned. Then rule XL., clause 1, was invoked. It prescribes the fining, or suspension, or exclusion, after trial by a District Committee or Branch meeting, of any member satisfac- torily proved "to have refused to obey these rules, or to comply with any order by them authorized"; but here again we were not shown any rule which the plaintiff had refused to obey, nor any authority for any order with which he had refused to comply.

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ment as to conditions of employment. The effect of declaring the plaintiff to be still a member of the society would clearly not be the enforcement of such an agreement. For if, after being declared to be still a member, he were to seek by legal process to enforce such an agreement against the society, sec. 26 would be a direct bar to his action. The enforcement of such an agree- ment would, therefore, not be the result of the relief sought. The plaintiff asserts and proves that, having been expelled by a pro- ceeding which is wltra vires and void, his membership is unim- paired. The foundation of his action is property; for, as a member, he is a participant in the property held by the society, and his right to vote is also property. He can assert these rights without a proceeding to enforce the agreement as to conditions of employment, which, if the basis of the society is illegal, he could not do, The mere maintenance of his membership is not of itself the enforcement of rights which he is not even free to enforce. On the other hand, if the basis of the society is not illegal, an agreement within sub-sec. (1) is enforceable, for sec. 26 does not bar any action, otherwise valid, for such enforcement. It does not "enable" any Court to help their enforcement, but where the right to enforce existed previously, the fact that the Statute gives no further enabling authority is immaterial. In Russell's Case (1), Lord Macnaghten said : - *In the case of a trade union not dependent on the Trade Union Acts for its legality or immunity the law is open to the members of the society just as it is in the case of other voluntary societies for the purpose of enforcing contractual rights and trusts against the association." Consequently, even if there is a basic illegality in the society, this is not such an action as is barred by the Statute, because it is not for the purpose of enforcing any agreement as to conditions of employment; while, in the absence of such illegality, it would not matter if the relief sought included the enforcement of such an agreement: See the judgment of Fletcher Moulton LJ. in Osborne v. Amalgamated Society of Railway Servants (2), which is as applicable to an agreement within sub-sec. (1) as it is to an agreement within sub-sec. 3(a). I respectfully adopt the distinc- tions which his Lordship drew between Osborne's Cuse (3) and

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Court to say. But, as a matter of interpretation of a document according to ordinary understanding, unfettered by legal methods of construction, it would be difficult to escape the conclusion that the rule means this: Whenever members of the society are out on strike at one shop, and the employers at that shop send their work to be done at another shop, the society men at the other shop may be ordered instanter to refuse to do that work, for doing it means so far breaking their fellow members' strike. And further: If non-society men are brought in to work at a shop, the intention of the rule appears to be that the society men may be instructed to quit instantly. Both these, and more particularly the first, seem to touch the root of the matter, for otherwise the society would be permitting one set of its members to be actively defeating another set of its members, who were struggling for redress of alleged grievances. No society could expect to maintain its objects if this were to proceed indefinitely, and for such internal disunion to exist at all is to some extent inimical to the society's purposes. Apart from settled principles of construction which coerce the judicial mind, I should so eon- clude. But there is a principle, namely, a presumption that if what is stated can be carried out, not " possibly " - for I think that is too extreme - but without depriving the provision under consideration of substantial force, "in a manner free from ille- gality, it must be so construed. "Itis . . . a settled canon of construction," says Kay LJ. in Mills vy. Dunham (1), " that where a clause is ambiguous a construction which will make it valid is to be preferred to one which will make it void." And in Co. Litt., 42a, we find it stated as a general rule "that whensoever the words of a deed, or of the parties without deed, may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken," the maxim being "Za est accipienda interpretatio que vitio caret."

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Judgment (195 paragraphs)