Australian Transport Officers Federation v. The State Public Services Federation [1981] FCA 8

Conciliation and Arbitration Act, 1904, ss.88F, 139, 143

The Australian Transport Officers Federation v. The State Public Services Federation

NEW_SOUTH WALES DISTRICT REGISTRY ) NO. 25 OF 1980 ) )

IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under Section 143(1)(c) of the said Act BETWEEN THE AUSTRALIAN TRANSPORT OFFICERS FEDERATION Applicant

JUDGES MAKING ORDER: J.B. Sweeney, Evatt and Northrop JJ.

1. The application be adjourned sine die.
2. Liberty is reserved to either party to apply on 48 hours notice.

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) NO. 25 OF 1980

IN _THE MATTER of the Concrilratron and Arbitration Act, 1904

AND_IN THE MATTER of an application under Sectzon 143(1)(c) of the said Act BETWEEN THE AUSTRALIAN TRANSPORT OFFICERS FEDERATION Applicant

This 18 an appltcatiton by the Austral2zan Transport Officers Federation ("the applicant") seeking an order under s.143(1)(c) of the Conc1lzation and Arbitration Act, 1904 ("the Act") for the deregistration of the State Publrc

Services Federation ("the respondent") on the ground that the

respondent has not observed its rules so far as they prov:de for a matter in accordance with the prescribed condzt:ons. The part:cular rules with which we are concerned are rules providing for the alteration of the rules which zs in terms a matter in accordance with the prescr:zbed condztions. Both

parties are organizations registered under the Act.

The applicatzon before us artses out of an application made to the Industr1al Registrar for hits consent to an alteration of the rules of the respondent relating to conditions of eligzb1lity for membership. The application was heard by Deputy Industrial Registrar Cogar. The applicant was one of 18 objectors to the respondent's applicatzon. During the proceedings before him, the Registrar heard argument on a preliminary question. This was whether the alteratzon to which the consent was sought had been made in accordance with the relevant procedures lard down by the rules of the respondent. Sectzron 139(1) provzdes that such an alteration of rules shall not have effect unless the Registrar consents to it upon an application made as prescribed. Sectzon 139(2) provides that the Registrar may consent to the alteration in whole or in part but shall not so consent unless he is satisfred that the alteration has been made 1n accordance with the relevant procedures laird down by the rules of the

The Registrar ulttmately held that the alterat*on had not been made in accordance with the relevant procedures and he thereupon dismissed the application. Pursuant to s.88F of the Act the respondent sought leave to appeal to the Conctliration and Arbitration Commission against the deczsion of the Registrar. Leave was granted and the Comm:zsszon thereupon proceeded to hear and determine the appeal. The powers of the Commisston under s.88(5) were exerczsed by a Deputy President. Upon the determznation of the appeal the Commission upheld the appeal and quashed the decision of the Registrar who thereupon relisted the applicatton for further

hearing and has now f1xed further dates for hearing.

Section 139 makes the jurisdiction of the Registrar to consent to an alteration subject to the condition precedent that he is satisfied the alteration has been made in accordance with the relevant procedures lazd down by the rules of the organization. The allegation before us 21s that the respondent did not comply with the relevant procedures laid down by its rules in making the alteration and consequently 1ts rules on thzs matter have not been observed and the applicant seeks a ruling on this issue. In additton to the application under s.143 by the applicant, there was before us a notice of motion issued in that application pursuant to Order 9 Rule 7 of the Rules of Court, seeking an order that

On the matters being called, counsel for the parties asked that both the motion and the application be taken together. It was agreed that the 1ssues to be argued were:

2. Whether there had been an estoppel whrch would preclude xt being heard; and

3. Whether the judgment of the Deputy President was correct and the condztion precedent in s.139(2) had been complied with.

We take first the question whether the purported alteration to the rules to which consent was sought had been made zn accordance with the relevant procedures laid down by the rules of the respondent being the organzzation applying

The respondent 1s an organization consisting of sx branches. Its rules provide for four federal off:zcers. Provision 1s also made for a federal counctl and in r.8(a) it zs said that the federal council shall be the supreme governing authority of the respondent. The federal councrl consists of the four officers together with three delegates from each branch. We were tnformed there were six branches. In addition to the federal counctl there us a federal executive but nothing turns on that. Rule 10 sets out zn a

number of sub-clauses various powers which may be exerczsed by

the federal council. They include power to (1) make, amend or rescind any of the rules of the federation. Federal council 1s to meet at least two yearly and tin add2ztzon at such other tiumes as it deems necessary and whenever a meeting 1s convened by the federal executive under r.8(c) or by a request by or on behalf of three branches under r.8(d). Rule 11 deals wzth

meetings of the, federal counc2l and 2t provides as follows:

(A) On the assembling of the Federal Council the Federal President or tun his absence the Federal Vice-President or tn the absence of both a delegate to Federal Counc2zl elected by the persons assembled for the meeting shall preside as Chairman.

(B) The Federal Secretary shall read the delegates' credentials and on the acceptance of same Federal Council shall unless otherwise determined by Federal Council proceed to business in the followzng order:

3. Minutes of the previous Federal Counc:1l Meeting. Minutes of Special Federal Council Meetings (if any).

6. Balance Sheet, Statement of Income and Expenditure and Auditor's Report.

insufficient nominations recezrved to require a ballot for any of the offices of Federal President, Federal Vice-President, Federal Secretary and Federal Assistant Secretary and statement by Returning Officer regarding arrangements for a

ballot of all fznanctal members of the Federation in respect of these Federal offices for which more than one nomination has been received.

14. Venue of next ordinary two-yearly Federal Council meeting.

(c) Federal officers, Federal Executive and any Branch may place any item of business on the agenda of the ordinary two-yearly meeting of Federal Counc1l and on the agenda of any meeting of Federal Executive. All items from Branches for the Agenda of Federal Council shall be in writing and forwarded to the Federal Secretary not less than sixty (60) days przor to the date of such meeting and shall be circulated by the Federal Secretary to each Branch and member of Federal Counc1l not less than thirty (30) days prior to the date of such meeting. A member of Federal Council who wishes Federal Council to consider any matter not on the agenda for that meeting and not involving any add7tton to or amendment or rescission of any Federal rule may have such matter considered if by two-thirds majority the assembled members resolve to consider the particular matter sought to be brought forward.

(D) If the Federal Executive or any Branch desires Federal Council] to consider any addition to or amendment or rescission of any Federal rule nottce shall be given to the Federal Secretary at least sixty (60) days przor to the ordinary two-yearly meeting of Federal Council or a Special Meeting of Federal Council specifying the new rule amendment or rescission sought and each Branch Secretary and member of Federal Council shall be given at least thirty (30) days written nottce by the Federal Secretary that such new rule amendment or rescission 1s to be considered by Federal Council.

(E) Any three Branches may wzthzn ninety (90) days of the rzrsing of Federal Council or Federal Executive by spectral resolution of thezr respective Branch Councz1ls request a postal ballot of the whole of the ftnancral membership of the Federation on any decision of Federal Council or Federal Executive specifzed in that request and such decision shall thereupon be submitted to a postal ballot of the whole of the financial membership. Any such ballot shall be conducted by the Federal Returning Officer at

the expense of all the Branches each of which shall forward to the Federal Returning Officer within two weeks of beizng so requested by the Federal Returning Officer a cheque for so much of the total expenses of the postal ballot as estimated by the Federal Returning Officer as the firnancial membership of each Branch bears to the total frnanctal membership of the Federation. The result of any such ballot shall be binding on the Federal Counctl or Federal Executive.

(F) Within thirty (30) days of the rising of the Federal Councz1l or Federal Executive, the Federal Secretary shall forward to each Branch and to each member of Federal Council a copy of the draft minutes of that meeting.

Rule 11(C) provides methods by which federal officers, the federal executive or a branch may have items placed on the agenda for federal council or the federal executive. It also provides a method whereby a member of federal council may have that body consider a matter not on the agenda for a meeting providing it does not involve any

additzon to or amendment or rescission of any federal rule.

Rule 41 provides for the taking of a postal ballot of the federal counczrl. It provides "any decision required to be made by ... federal council may be made by post and any decision so© made shall be as valid and effectual for all purposes as if that deciston had been made by ... federal council ... un meeting assembled". This provision 28s subject to two provisos, the first that every member of federal

council has an opportunity to vote and the second that 75% of

those entitled to vote do vote. It 2s common ground that the procedures set out un r.11(D) were not followed and the question then is the validity of a resolutton amending the

In our view, r.4]l 1tself answers the question. The resolution carrzed by ballot ts to be as valid and effectual as 2f it had been carried at a meeting. If a resolutton amending the rules had been carrzed at a meeting without the procedures prescribed by r.11(D) bexrng adopted, it would not be effective to alter the rules. Two steps are contemplated by r.11(D). The first that 60 days notice of a wzsh by the federal executive or a branch to alter a rule be given to the federal secretary and second that 30 days notice be given by the federal secretary to each branch secretary and member of the federal council that such new rule amendment or rescission is to be considered by federal counczl. It will be noted that the language used 1s in terms mandatory and %n this respect it differs from the proviszons in r.11(C). It w21l be noted tun addition that the draftsman 1n dealing wtth r.11(C) has taken care to ensure that the requirements of that rule are directory and not mandatory. It 2s common ground that the

It 1s dzffxcult to think of any subject matter more

important in the affairs of an organization than its own

legislatzve power and tn our view r.11(D) 1s properly treated

as mandatory and we are satisfied the draftsman so intended xt. Rule 11(D) prescribes expressly a procedure to be followed as a condition precedent to the exerctse of the power to alter rules of the respondent conferred by r.10(1). This berng so, had the resolution, the subject of the postal ballot, been carried at a meeting of the federal council zt would not have been valid and would not have effected any alteration of the rules because of the fatlure to comply with the mandatory requirements of r.11(D). Under r.4l the resolution carrzed 2n the postal ballot 2s only as valid and effectual as it would be 1f tt had been carrzed at a meeting and zn these circumstances it does not effect an alteration of the rules. The fact that the requtrement of the two provisos to r.41 have been complied with cannot and does not give validity to a dectston taken tn disregard of the mandatory

This betng so, it 1s clear that the respondent in basing its application for consent under s.139 on this invalid amendment and tn seeking to alter 2ts rules relating to conditzrons of eligibility 1n the manner in which it ts dotng 28 not observing tuts rules dealing with the alteration of

The question which then arises ts whether the applicant 1s estopped by the decision of the Deputy Pres:zdent

from so contending. It was put that estoppel did arise both

by res judicata and issue estoppel. We do not think any question of res judicata arises. In Jackson v. Goldsmith, 81

C.L.R. 446 at 466, Fullagar J. described estoppel by res

"The rule as to res judicata can be stated sufficrently for the present purposes by Saying that where an action has been brought and judgment has been entered in that action, no other proceedings can therafter be mazrntatned on the same cause

of action. This rule is not, to my mind, correctly class1fied under the heading of "estoppel" at all. It is a broad rule of

public policy based on the principles expressed in the maxims tunterest re" publicae ut sit fznis 12t1tum and nemo debet bis vexari pro eadem causa."

We doubt 1f one can describe the proceedings before the Registrar or the subsequent appeal to the Commiss*.on as bezng an action brought but even 1f 1t is, *t 18 clear that the decision of the Deputy President confined as it was to a quashing of the deciston on a particular point of the Registrar, did not dispose of the matter and that whatever cause of action there was still remains. Nor in our view can 1t be sazrd that the decztsion was final. In the well known

judgment of Dixon J., as he then was, zn Blair v. Curran, 62

"A judicial determination directly involving an tissue of fact or of law disposes once for all of the issue, so that 1t cannot afterwards be ra1sed between the same parties or their privies."

ll. and at p. 532: "The distinction between res judicata and issue-estoppel is that tn the first the very right or cause of action claimed or put in suit has in the former proceedings passed unto judgment, so that it is merged and has no longer an independent existence,

while in the second, for the purpose of same other claim or cause of action, a state of fact or law is alleged or dented the existence of which is a matter necessarily decided by the prior judgment, decree or order."

It is important to have regard to the Conczltation and Arbrtration Commission as established under the Conciliation and Arbitration Act. It ts a tribunal clearly established by the legislature to act as a tribunal n determining matters arising under s.51(xxxv) of the Constitution and of course incidental matters. Its procedures are as specified in ss.39, 40 and 41 of the Act. At least since the 1956 amendment, the leg.slature has taken prec:se care not to vest it with judicial power. The description of zt as a Commission rather than a Court ts not of course really material but when regard is had to the Commtissiton and its powers it is clear that it falls into a materzally different class from, for example, the Board, whose powers were dealt

with in Administration of Papua and New Guinea v. Dagra Guba,

It has been held that a decision of the Commiss:zon exercising power not jJudiciral in nature did not operate by way

of estoppel to preclude the Australtan Industrzal Court from

deciding an issue as to the meaning of unzon rules. In The

Queen v. Gough; Ex Parte Municipal Officers Assoczration, 133 C.L.R. 59, the facts were that the Commissiton had dectded that

persons employed 2n certazn callings by certain employers were xthin the conditions of elzgibilzty rule of the Munzcrpal Officers Association. Thereafter another unton brought proceedings seeking the deregistration of the Munictpal Officers Assocration on the ground that the rules of that organization had not been observed. It was argued that "the Industrial Court should have treated itself as bound by the determination of the Commzssion that there was an industrial dzspute" and reliance was placed in particular on s.60(2). This argument was dealt with by the Court and rejected at pp.70-71. The only other case whtch has come to notice where the question of estoppel tn proceedings of a wage f2zxing tribunal has arisen is The Queen v. Best, 1965 Tas. S.R. 123. There a wages board under the Wages Boards Act, 1920 had before 1t 1n 1964 a dtspute between an employer and a union as to whitch determination applzred to certain work. A compulsory conference was held and the President of the Wages Board decided to make no order. In 1965 another compulsory conference was held and the Court held that the princzple of

One remaining case 1s Re T.W.U., 1969 (N.S.W.) A.R. 98. In that case the Industrial Commiss2on of New South Wales

un court session 21n dealing with an application by the T.W.U.

to have registered an alteration of its eligzbirlity for membership rule held that certain objectors were not precluded on the basis of estoppel arising from a dec*ston between the same parties on an application for a wrxrt of prohibrt1ron by

the Court of Appeal of New South Wales (see p. 104).

The Australian Industr2zal Court and the Federal Court have proceeded on the basis that itn approprirate proceedings the Court 1s not precluded from investigating the validity of alterations to the rules of an organtzatzon which had been

certifzed by the Registrar under s.139 of the Act, see for

example, Krantz v. Maynes, (1967) 10 F.L.R. 134 and Kayne v.

Banks (1978) 22 A.L.R. 255. Likewise tn proceedings under

s.140 and s.141 of the Act the Courts have proceeded on the basis that they were not precluded from tinvestigatzng the validity of the rules of an organization which have come into effect upon the Regzstrar certifying that 1n hts optin*.on the rules are not contrary to the provisions of s.140(1) of the Act. This practice supports our opinion that itn this case no

We have considerable doubt whether the principles of estoppel in pars exrther res judicata, estoppel by cause or zssue estoppel apply to proceedings tn the Concrtlzratiron and Arbitration Commission. Some consideration was given to the

question in Australian Commonwealth Sh:zpping Board v. The

Federated Seamen's Union of Australasia, 36 C.L.R. 442. In

14, that case a distinction was made between the effect of unreversed decisions of a court exercising judicial power and the then Commonwealth Court of Concilzation and Arbitration

exercising powers then regarded and treated as non-judicial.

It 1s true that both the Commiss:on, when hearzng the appeal from the Deputy Industrial Registrar and the Deputy Industrial Registrar, were under a duty to act judcrally (Pztfreld v. Frank:, 123 C.L.R. 448; The Queen v.

Commonwealth Concilzation and Arbitration Comm:iss:zon, 122

C.L.R. 546 at 552). The Commission does not sit to enforce existing private rights but rather to exercise an administrative arbitral system and create by means of conciliation or arbitration new rights and mod:fy existing rights. The principles upon which estoppel ts founded are stated to be the well known Latin maxims «nterest re1 publicae ut sit finis l1ttium and nemo debet bis vexari pro eadem causa. Whether this broad rule of public policy and these principles are applicable in the case of these functions seems to us a Matter of considerable doubt. The statute shows the concern of parlzament that a system of settling and preventing industrial dzsputes should be established and function and 7t 1s for this purpose of course that organizat*ons are created and subjected to statutory qualifications. The manner in which the Commission functtons under the statute seems tous to show that the view has been taken that there *~s greater

public interest in the prevention and/or settlement of

industrial disputes than in bringing litigation to an end or

ensuring that nobody has to defend himself twice in the same

Research has not shown any case un which within the Commission a decision and order on an issue has been held to give rise to an estoppel. Indeed while it is a system which places an important emphasis on litigaton by way of arbitration, that 2s an arbitration the characteristics of which are set out in the statute. It has marked differences from the arbitrations under, for example, the English

It may be mentioned that the procedures prescr:zbed in ss.24 and 25 of the Act and the sections prescribing procedures such as ss.40 and 41, do not seem to contemplate the existence of either of the broad pr«nciples expressed in

making powers, there 1S no onus on a party in cases where an award had been made between the same parties to show that something had occurred which made it proper to alter the

pre-existing decision and prescription (Re Federated Ship

Painters and Dockers Union of Australia, 94 C.A.R. 579 at p.611). Indeed the provisions of the Act seem quite

A dispute comes before the Commzssion and after the exhaustion of conciliatory procedures the d:spute is arbitrated upon. There are parties to the hearing and the award may bind only them or 1t may bind parties to the dispute who take no part in the hearing. An award is made for a period of time but even during that period it may be varied (s.59). Again, during the period fixed for the award to continue in force, a further industrial dispute may arise between the same parties and on the same subject matter and an

Section 21 of the Act, enabling the Commission to act on its own motion, reinforces the view that estoppels do not apply. It ius da:fficult to regard the hearing and determination of a dispute and the award or order resulting therefrom as a cause and we are of the view that clearly no

It is difficult considering these provisions to regard what may be decided in an award as giving rise to an estoppel nor does it appear that the decision of the Commission on an appeal under s.88 falls within the circumstances in which issue estoppel arises: Halsbury, 4th edition, Volume 16, paragraphs 1527 and 1530. We think no difference is to be drawn between an award or an order determining industrial matters or the functions of the Deputy

Industrial Registrar or the Commission on matters such as its

control over organizations. In both of them there are wider s aspects of public 2znterest ztnvolved which in our view overr'de

the considerations of public interest expressed in the two

We have already pointed out the bas2zs on which the Australian Industrial Court and this Court have proceeded in considertng the validity of alterations to rules. In the particular case we have before us, the view that estoppel does not arise is fortified by a consideration of s.143(1)(a). The Registrar makes the same type of decision in registering an association as he does 2n certifying rules. In each case parties may appear in opposition. In the case of registration, an unsuccessful objector before the Reg2zstrar may then proceed under s.143(1)(a) and secure the cancellation of the registration, having regard to matters going to the

right of the association to be registered (In Re Australtan

Actors' Union, 6 C.A.R. 89 per Higgins J. and Victoria v. Australztan Public Servants Association, 20 C.A.R. 115 per Powers J.). This section seems to us clearly inconsistent with there being any estoppel arising in proceedings before the Commission or the Registrar. In our view then in this

The remaining quest1on raised before us was whether this Court under s.143(1)(c) has jurtsdictzron where the rules

alleged not to have been observed were rules prescribing the

method of altering rules. It was clazmed that s.139(2) and (4) constituted an exclusive code and the only method of dealing with the question of compliance or otherwise with such a rule. While the sub-sections of s.139 were varied by Act No. 108 of 1977, it had long been the practice of the Registrar and the Commonwealth Court of Conciliation and Arbitration to requzre that rules lodged for erther certifizcation or consent could only be dealt with under the then statutory provisions 1f they had been validly adopted according to the relevant rules of the organization: Gould v.

Australzan Railways Union, 87 C.A.R. 939. The Court at p. 940

"This ts an appeal by a member of the Australian Railways Union against the "act or decision" of the Industrtal Registrar in registering certain purported alterat*ons to that Union's rules.

The alterations in questzon were made in 1956 at a meeting of certazn members of the Union purporting to be a meeting of its Australzan Counczl which, according to the rules, exercises supreme control of the Unzton and alone has the power of making, amending and rescinding rules.

The critical question on the branch of the appeal so far heard is whether the alterations were validly made at that meeting."

It may be observed that Act No. 108 of 1977 not only amended s.139 1n the manner stated but also s.143. Section 143 now provides tn s.s.(1) the grounds on which an order for cancellation of registration may be sought and provides in s.s.(3c) for certain powers where the Court 1s satisfzed that the rules of the organization have not been observed. Moreover in the case to which reference has been made already, The Queen v. Gough; Ex Parte Municipal Officers Association, the precise matter before the Court concerned an application by one organzrzation to have the regtstratzron of another organization cancelled on the ground that it was fatling to observe its rules. We see no reason why the insertion tin specific terms in 8.139 of the practice followed h:ztherto

should be taken to have effected an amendment of s.143(1)(c).

A question whether rules have been observed may of course be raised by a member of an organizatton under s.14l. The effect of s.143 1s that under s.s.(1)(c) that questzon may be raised by any organization or person interested or the Mintster or indeed the Registrar. A like positton obtatns with the powers under s.140. The question whether rules comply with that section may be razsed by a member and 1tke questions may be ratsed by any other persons' under s.143(1)(b). No way was suggested tn which the existence of these powers in s.141 or s.140 would make the scheme of the Act unworkable and we are satisfied that s.143(1)(c) 2s not to

be read down so as to exclude rules providing for the manner

of alteration of rules. The Court then in our view has

Counsel for the applicant stated that the applicant would be satisfied if at the stage when the Court was satisfied that the rules had not been observed it had an opportunity of seeking an order under s.s.(3c). Before making any such order 1t was agreed that the persons against whom the order was sought would necessarily be given an opportunity of being heard. In our opinion we should express our view that the Court 28s satisfied that the rules of the organization, namely rules 10(2), 11(D) and 41 have not been observed. The Matter will be adjourned. We wz1ll reserve liberty to apply to either of the parties. In these circumstances the notice of

preceding pares are a true Cony eS of tne Reasons for Judgment herein of Sate Honoars