Bailey L.J. v. Krantz, H.D. & Ors [1985] FCA 370

Federal Court of Australia|1985-07-01|Before: Gray J

CATCHWORDS Industrial; law - registered organizations - . performance, and observance 'of rules - vregistration under South Australian law - whether registration of branch or separate association ~ whether state law dan ipcorporate branch - inconsistency with law of Commonwealth - whether incorporation provisions severable - whether branch defunct - entitlement to funds and property - whether property "vested" in organization - whether equitable defences available - validation by lapse of time - whether validation leads to "substantial injustice". Commonwealth of Australia Constitution, s. 103, Conciliation and Arbitration Act 1904, s. 141, s. 140, s. 133A, s. 171F, s. 171G, 5. 132, s. 41, s. 65, 5. 66, 5. 67, 5. 136, 5. 158D, 5s. 139, s. 171C, Conciliation and Arbitration Act Requlations s. 115, s. 127

Industrial Conciliation and Arbitration Act 1972 (S.A.) s. 5,

Associations Incorporation Act 1956-1965 (S.A.), Judiciary Act 1903, s. 78B,

Real Property Act 1886 (5.A.), Trustee Act 1936 (5.A.) s. 5,

Allingham v. The Australian Workers' Union [19723 Qd R 218,

In Re Wages and Working Conditions of Persons Employed as Clerks

and Clerical Workers and Office Workers £19411 S.A.S.R. 65,

Ryan v. Federated Clerks Union of Australia (South Australian Branch) £1951] S.A.S.R. 249,

Egan v. Shop Distributive and Allied Employees' Federation of

JAMES LESLIE BAILEY v. HARRY DAVID KRANTZ & ORS. GRAY J. 16TH JULY, 1985

IN _THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) S.A. No. 1 of 1983

The motions the subject of the Notice of Motion dated 31st January 1985 are dismissed.

The motions the subject of the Notice of Motion dated 21st February 1985 are dismissed.

Paragraphs (a), (b), (c), (d), (e), (f£), (g), and (h) (where second appearing) of the Rule to Show Cause are discharged.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SOUTH AUSTRALIA DISTRICT REGISTRY) S.A. No. 1 of 1983 i } INDUSTRIAL DIVISION )

This proceeding was commenced by Rule to Show Cause granted on 23rd March 1983. In substance, the relief sought is pursuant to s. 141 of the Conciliation and Arbitration Act 1904 ("the federal Act"), being orders for the performance and observance of the rules of the Federated Clerks Union of Australia ("the Union"), an organization of employees registered

! Originally there were two applicants, one of whom was

subsequently removed from the proceeding. Mr. H.C. Williams Q.C.

-~-2- appeared at the trial for the remaining applicant, together with

Mr. Turner, later Mr. Lindsay, and later still Mr. Jarvis.

The respondents fall into two groups. The first group, for which Mr. Heywood-Smith appeared, consists of members of the Branch Council of the South Australian branch of the Union ("the Branch"), some of whom are also national councillors representing the Branch, as well as national councillors representing the Central and Southern Queensland Branch and the Taxation Officers Branch of the Union. The second group, for whom Dr. Jessup appeared, consisted of the remaining members of the National

By order made on 23rd July 1984, there were added as parties to the proceeding the Union and an association registered

under the Industrial Conciliation and Arbitration Act 1972 (5.A.}

("the state Act"), and known as Federated Clerks' Union of Australia, South Australian Branch ("the South Australian Association"). Dr. Jessup appeared for the Union, and Mr.

Heywood-Smith for the South Australian Association.

The trial began on Sth February 1985. Because of the

time which had elapsed between the grant of the Rule to Show

Cause and the trial, consent orders were made on 21st February 1985, adding as respondents the persons who now hold the offices

The application concerns land on which is erected a4

building occupied as to part by the administration of the Branch

~3- and the South Australian Association. Pursuant to the Real Property Act 1886 (S.A.), this land is registered in the name "Federated Clerks' Union of Australia South Australian Branch". Also the subject of the proceeding are funds deposited to the credit of the same or a similar name in a credit union in South Australia known as the Satisfac Credit Union. The applicant contends that the land and building and the deposits are the property of the Union, and that the rules of the Union oblige those respondents who are officers of the Branch and members of the Branch Council of the Branch to cause the land and the

At the outset of the trial, senior counsel for the applicant told the Court that discussions had occurred between him and Dr. Jessup; the interests of the applicant and the respondents for whom Dr. Jessup appeared were substantially the same, and Mr. Williams was aware of the evidence that Dr. Jessup

intended to lead. On Mr. Williams's application, and that of Dr.

Jessup, Dr. Jessup was permitted to put his case first. In the result, the applicant did not put forward any evidence, but

At a late stage of the trial, the possibility emerged that s. I171F of the federal Act might operate to validate relevant decisions of the Branch Council that were more than four years old. In consequence of this possibility, Dr. Jessup's clients filed a notice of motion dated 21st February 1985, seeking an order pursuant to s. 171G of the federal Act. It was

necessary for the Court to make an order for the advertisement of

-4- this application, and the service of the notice of motion and other documents in the proceeding on the Australia and New Zealand Savings Bank Limited, the mortgagee of the land and building. Argument on this issue took place some weeks after the

There was also a notice of motion, dated 3lst January 1985, which was filed on behalf of the applicant. This notice of motion concerned inspection of documents in the possession of the respondents. On the first day of the trial, the applicant's counsel applied to have this notice of motion stood over generally. This application was granted, and the motion for

A number of issues arose in the course of the proceeding. It is appropriate that the Reasons for Judgment he

On 13th April 1911, the Union became registered as an organization of employees, pursuant to the federal Act. It was so registered under the name "The Federated Clerks' Union of Australia". The original rules which were filed with the application for registration are in evidence before me. They

contained provisions governing the banking and expenditure of

"BRANCHES 34. For convenience of members the Union may consist of as many Branches throughout Australia as may he deemed desirable. All branches shall conform to the rules of the Union. Such Branches shall be allowed one representative on the Committee of Management for every

fifty members in addition to the number set out in rule 4 but no branch shall be entitled to more than three

Save for rule 34, the rules made no provision at all with respect to branches. Rule 4 made provision for a committee of management to consist of "a President, two Vice-Presidents, Secretary, Treasurer and six committee men". Various provisions were made for the exercise of powers by general meetings. Apart from rule 34, the original rules of the Union did not bear the character of rules of a federation, especially one having branches in various

Of some interest is a letter from the General Secretary of the Union to "the Commonwealth Industrial Registrar", dated 22nd September 1915, which is in evidence. The letterhead bears the nawe of the Union, together with a signification of its registration under the federal Act. Printed at the left hand side is the word "Branches", under which are listed the names of five States, including South Australia. The letter informs the Industrial Registrar of a resolution of a "Special Meeting of the Federal Council held in Adelaide, South Australia, on September

7th 1915", concerning proposed alterations to the rules of the

On 8th March 1916, the General Secretary of the Union submitted to the Industrial Registrar a set of rules of the Branch, said to have been adopted on 15th February 1916, Provision was made by these rules for a committee of management and officers. By Rule 3, subject to decisions of general meetings, the committee of management was given "full power to govern the Branch according to the Federal registered Rules and Branch By-Laws." Rule 6 related to the office and duties of the Treasurer of the Branch. It provided among other things "the money shall be deposited in the Commonwealth Bank of Australia in the name of the Branch, within forty-eight hours of receipt of

"Funds. 14, The funds of the Branch shall be used in such

Tanner as may be provided by the Rules and By-laws for the furtherance of any of the objects of the Union or as

A note at the end of this set of rules describes them as having been adopted at a general meeting on 28th August 1912, anc revised and amended by a committee specially appointed to de sc

Audited balance sheetS and statements of income anc expenditure were lodged by the Union with the Industria2 Registrar. In respect of the year 1915, these documents showec entries for various branches, including the Branch, under the heading "Affiliation Fees". In respect of the year 1916, there were recorded receipts of "Sustentation Fees" from various

branches, including the Branch. There were also recorded amongst

-7- expenses of an annual conference, held at Sydney in May 1916, fares for various delegates, including South Australian delegates. A return of officers dated 15th May 1916, and filed with the Industrial Registrar, recorded the election of a

On 16th June 1917, the Union filed an application to change its name to "Australian Clerical Association". The application was said to be based on a resolution of the annual conference of the Union between 8th and 14th May 1917. The

There has been tendered in evidence a copy of the rules of the Union as at 21st August 1917, together with certain

amendments which operated from lst April 1918. It is appropriate

(a) To regulate the conditions under which all members or persons entitled to become members of this Association may be employed.

(b) To advance and protect the interests of all members and all trade unionists by industrial, political, or any other means.

The Federal Executive may withhold support from any Branch entering upon any dispute involving the interests of other Branches, without first having obtained the sanction of the Federal Executive.

The Federal Executive may pay the whole or any part of the expenses incurred by or on behalf of any Branch in an appeal to any industrial tribunal.

In the event of any dispute taking place in any State, the Secretary of the Branch thereof shall try by conciliation to settle the dispute. [In the event of the

Secretary of the Branch not being able to come to a satisfactory arrangement immediately, the Secretary of the said Branch shall report the matter at once to the Branch Executive, whose duty it shall be to report the matter to the Federal Executive who shall take such action as the circumstances require. The action of the Federal Executive shall be binding on all members of the Association in such State.

Any Union situated in a State not already included in the Association, and which is eligible to join, may apply to the Federal Executive to be admitted as a Branch of the Association. Such application shall be in writing, and shall be accomplished by a copy of the resolution of the Union authorising the person making application to do so. Such application shall be dealt with by the Federai Executive.

The Association shall consist of members throughout Australia, and may have a Branch in each State. All Branches shall conform to the rules of the Association.

Each Branch shall be called the "Australian Clerical Association, - Branch" (the blank being filled in with the name of the particular place or State in which the Branch exists).

All Branches are pledged to support one another financially when required. Each Branch shall conduct its own election of delegates to Federal Conferences, the result to be in the hands of the General Secretary at least seven days prior to Conferences.

Branches shall have power to make rules from time to time for their own internal management, as they may deem

advisable: such rules shall not be contrary to the spirit of these rules."

Various other provisions relating to branches were also present.

consistently showed a substantial number of members of the

Returns of members filed with the Industrial Registrar

the years 1918, 1919, and several years thereafter,

-9- name of the Union to its present name, Federated Clerks Union of Australia. The application was said to be based upon a resolution of Federal Conference. The change of name was

In the meantime, events were occurring in the State of

South Australia. The Industrial Arbitration Act 1912 (S.A.)

sought to regulate industrial relations at the State level.

Provision was made for participation by associations in the

system of regulation laid down in the Act. The word

"association" was defined in s. 3 of the Act as follows:

""Association" means any trade or other union, or branch of any union, or any association, society, or body composed of or representative of employers or employes, or for furthering or protecting the interests of employers or employes:""

No provision was made by the 1912 Act for the registration of

The Industrial Arbitration Act Amendment Act 1915 (S.A.)

introduced a system of registration of associations. Section 2

of that Act provided that it was incorporated with the Industrial

Arbitration Act 1912 (S.A.), and that both were to be read as one

Act. Section 8 of the 191315 Act made provision for registration of an association, upon compliance with prescribed conditions, and for the issue of a certificate of registration "which shall be conclusive evidence of the fact of such registration and of the validity thereof". Sections 9 and 10 of the Act provided as

purposes of this Act, and as from the date of registration, be a body corporate by the registered name, having perpetual succession and a common seal, and by that name may sue and be sued for the purposes of this Act.

Any branch of an association may be treated as a distinct association for the purposes of this Act, and, with the approval of the Registrar, may be separately registered under this Act: Provided that no branch

shall be registered as an association unless, in the opinion of the Registrar, it is a bona fide branch of

sufficient importance to be registered separately." It is common ground between the parties that the records of the Industrial Registrar appointed under the state Act are incomplete. So far as they are available, they have been tendered in evidence. They disclose that, prior to 27th November 1918, application had been made under the 1915 Act for the registration of an association called "Australian Clerical Association South Australian Branch". Registration in this name was effected on 10th January 1919. At the time, there were

regulations known as "Rules of Industrial Court 1916", made

pursuant to the 1915 Act. Rule 56 of these Rules prescribed the conditions for registration of an association, including the

matters for which the rules of an association were required toa

Make provision, the form of application for registration, and the documents which were required to accompany it. Neither the original rules filed, nor any of these other documents is available for inspection. Accordingly, it cannot be determined from such primary documents whether the application purported to be made on behalf of the Branch, or whether action was taken to form a completely separate association. Such copy correspondence

from the state Industrial Registrar as is on the file is

addressed to "R. Youlton, Esg., Secretary, Australian Clerical

ii - Association, S.A. Branch". There is evidence that a person by the name of Youlton was secretary of the Branch prior to this

Some attempt was made to establish that a union of clerks existed in South Australia prior to the registration of the Union under the federal Act. Over objections from Dr. Jessup, there were put in evidence extracts from newspaper articles published in 1905, concerning the formation of a clerks' association. Even if admissible, these documents do nothing to establish any connection between any association formed at that time and that which was the subject of registration in South Australia in 1919. Similarly, reference was made to appearances in two cases in the South Australian Industrial Court in 1917 and

1918, reported respectively as The Clerks' Case (1917) 1 S.A.I-R.

284, and The Retail Drapers' Clerks Case (1919) 3 5.A.I.R. 53.

In each of these cases, there was an appearance by an association. In the latter case, this was described as "the Australian Clerical Association, South Australian Branch". An examination of the report of each of these cases indicates that the original claims were made by a number of employees as individuals, a procedure still sanctioned by the state Act. The association concerned had intervened in the proceedings to support the claims. If there had been a registered association, it would have been entitled to institute the claim in its ow yight. The fact that steps were taken to institute, and then to support, a claim by a number of individuals suggests strongly the absence of a registered association. There was some speculation

as to whether registration might not have been effected under the

-~ 12 - Trade Union Act 1876 (S.A.), but 1t appears that the original register under that Act cannot be found. There is, therefore, no evidence of the previous existence as a separate association, or

of the registration, of the body which became registered in South

On 19th March 1925, a few months after the Union had registered its change of name, a change of name was registered in South Australia to "Federated Clerks' Union of Australia, South

The successive South Australian statutes relating to industrial conciliation and arbitration operated to preserve the registration of associations which had been effected under the

1912 and 1915 Acts. Reference should be made to s. 3 of the

Industrial Code 1920 (S.A.), s. 5 of the Industrial Code 1967

(S.A.) and s. 5 of the state Act. The attention of the Court was also drawn to s. 137 of the state Act, which contains more detailed provisions making it clear that an assocration registered under the 1912 and 1915 Acts, the registration of which has not been cancelled subsequently, is "deemed to be and

always to have been validly and effectually so registered" and is

a registered association under the state Act. Section 117 of the state Act also deems a certificate of registration of a registered association to be and always to have been conclusive evidence of the fact of such registration and of the validity

In many cases in which the courts have been called upon to deal with cases of dual registration of industrial bodies, under federal and state law, it has been necessary for the court to piece together the history of operation of such bodies, often from inadequate records. In the present case the Court has heen extremely fortunate in having available to it first hand evidence of the operation of the Branch and of the South Australian Association over many years. Mr. Harry Krantz was first elected as Secretary of the Branch and the South Australian Association in 1941. Shortly thereafter, he left to serve inthe armed forces, but he returned to the position in 1946, and held it until August of 1984. Mr. Leslie Haseldine first became an organizer in 1948, and has held the office of Assistant Secretary of the Branch and of the South Australian Association from 1950 or 1951 until the present time. Fach of Mr. Krantz and Mr.

Haseldine gave evidence at some length in the proceeding.

Notwithstanding the very great assistance given to the Court by these two witnesses, the very early history of the operation of the Branch and the South Australian Association must necessarily remain obscure. It does appear that, from the earliest times, there were filed with the Industrial Registrar under the federal Act, and with the Industrial Registrar under South Australian legislation, copies of rules which purported to be the rules of the Branch and the rules of the South Australian

Association respectively. More will he said about the content of

For many years, the requirements of the federal rules,

the Branch rules, and the rules of the South Australian Association, with respect to admission to membership, have coincided. No particular form of application for membership has been detailed in the rules, the requirement simply being that a prospective member supply such information as to his identity and occupation and such other particulars as to his eligibility for membership as the Branch Executive may require, and fill in and sign such application form "as may be provided". The earliest available form of application for membership in South Australia is one dated 7th February 1968. This form bears the title "Federated Clerks' Union of Australia", and contains the following words:

"I, the undersigned, hereby apply to be admitted as a

member of the above Union, and, if accepted, pledge

myself to loyally conform to the Rules and By-Laws of the said Union."

There follow spaces for the name and other particulars of the prospective member, as well as spaces for the signature of the prospective member, the signature of a witness and the date. The uncontradicted evidence is that this form of application for membership was used consistently for many years prior to 1968, at least as far back ag the early years after World War II. Substantially the same form of application for membership has been in use consistently since 1968. Some minor changes have occurred in the layout of the form, and in more recent times a heading "Application Card" has been added, and the prospective member has been invited to indicate whether dues are to be deducted from his or her pay. In some cases, a reference to a

specific section has been inserted beneath the heading in the

-~ 15 - printed form, eg. "S.A. T.A.B. Off Course Clerk's Association Section". Otherwise, the name of the Union as it appears on the form, and the words of application and pledge have remained the

All persons who have applied for membership have, until recently, had their names entered in a single register of members, and have been treated for all purposes as members of both the Union and the South Australian Association. The recent exceptions to this practice are of little relevance. In the first place, as a result of the decision of Evatt J. in Re an

Application for an Inquiry into an Election in the Federated

Clerks Union of Australia, South Australian Branch (matter 5.A.

No. 15 of 1981, judgment delivered on 28th June 1983, unreported) zt became clear that persons admitted to life membership under rule 7 of the rules of the South Australian Association and the rules of the Branch could not properly be given the right to vote in an election within the Branch or the Union. Since that time, the practice has been adopted of not giving such members a vote. The other instance concerned one Prichard, a former member of the Union, whose name was removed from the register of members pursuant to a power contained in rule 1l of the rules of the Branch. Mr. Prichard subsequently applied to the Court pursuant to s. 144 of the federal Act, and was held to be entitled to membership of the Union under that section. The view has been taken that Mr. Prichard is not a member of the South Australian

For a number of years, the practice has been for each

-16- new member, and in some cases prospective members, to be supplied with a pamphlet giving information. These pamphlets did not distinguish between the Branch and the South Australian Association; rather, they spoke consistently of a Union registered under both state and federal legislation. Information was given about the services offered to members by the Union, both directly and through the Branch, and by the South Australian

It has never been the practice to distinguish between the Union and the South Australian Association in charging

subscriptions. One subscription was charged to each member, and was treated as entitling that member to any relevant benefits offered by the South Australian Association and the Union. Monies raised from members were generally paid into a bank account. The major account was and is a current account with the Bank of Adelaide Savings Bank Limited and, after September 1980, with its successor, the Australia and New Zealand Savings Bank Limited, at 185 Hutt Street, Adelaide. This account has consistently been titled "Federated Clerks' Union of Australia South Australian Branch". There was, for a number of years, also a savings account with the Bank of Adelaide Savings Bank Limited at 185 Hutt Street, Adelaide, styled "Federated Clerks' Union of Australia - South Australia Branch Premium Interest Account

From these bank accounts liabilities of the Branch and

of the South Australian Association were discharged as and wher

they arose, and other sums were spent, as the Branch Council,

~-417- administering both the Branch and the South Australian Association, saw fit. A single set of books of account was kept, dealing with all income and expenditure, not distinguishing between that which occurred on behalf of the Branch and that which occurred on behalf of the South Australian Association. From the monies available, what were described as "sustentation fees" were paid regularly to the head office of the Union. These fees were required under the rules of the Union to be calculated on the income of a Branch; the calculation of them was made on the total income of the Branch and the South Australian Association from the one set of subscriptions and other amounts paid by members. From the single set of books of account, there were drawn up periodical statements of income and expenditure, and balance sheets as at various dates. These were the subject of audit. They were filed with the Industrial Registrar under the state Act and previous South Australian Acts, and with the Industrial Registrar under the federal Act, except for the years 1952 to 1961 inclusive, when they do not appear to have been filed with the federal Industrial Registrar at all. The audited balance sheets and statements of income and expenditure for the years 1964 to 1972 inclusive were filed together, accompanied by a statutory declaration of Mr. Krantz dated 13th July 1973. This indicates that there was some failure to file them with the Industrial Registrar under the federal Act during the period 1964 to 1971. Mr. Krantz's evidence was that any failure to file these documents, on time or at all, was the result of neglect, rather than of any conscious decision not to file the documents.

In respect of 1962 and 1963, and the years after 1971, the

documents appear to have been filed annually. There is no real

18 - consistency in the headings which appear on these documents. From 1973 onwards, the documents bore the name of the Union (with no apostrophe), and the words "South Australian Branch" on the next line. From 1968 to 1972, the name of the Union appeared with an apostrophe after the word "Clerks", and with the words "South Australian Branch" in brackets on the next line. Prior to 1968, the name of the Union appeared with an apostrophe, and the words "South Australian Branch" in lower case on the next line. Items of expenditure apparently relating to attendance at meetings of the Federal Council of the Union are found in many of the statements of income and expenditure which were filed. The auditor's report attached to the accounts for 1980 specifically referred to compliance with s. 158AD of the federal Act, a4 provision relating to the preparation of accounts by registered

organizations, which came into operation on 20th December 1980.

The practice as to election of officers has been consistent. At no time have separate elections been held with respect to the Branch and the South Australian Association. Rather, one set of elections has been held on each occasion, for officers and members of a Branch Council. The officers have discharged the duties and obligations falling upon the relevant officers under both the rules of the Branch and the rules of the South Australian Association. They have not made any express distinction between acts done with respect to one or the other. Similarly, one Branch Council has administered the affairs of the Branch and the South Australian Association, without any formal

division between those affairs. Elections have also been held,

in conjunction with other elections, for persons to represent the

19 - Branch on the Federal Council (more recently called the WNatizonal Council) of the Union. It has been unnecessary for members of the Branch to vote in elections for Federal (later National) officers, as these elections have been by a collegiate process,

In order to comply with the provisions of the federal Act and of the state Act and its predecessors, it was necessary for the rules of the Branch and the South Australian Association respectively to he filed with the respective Industrial Registrars under those Acts. The Branch Council, and the officers in South Australia did make genuine attempts to ensure that the rules of the Branch and the rules of the South Australian Association were in identical terms. In particular, in 1951 and 1952, Mr. Krantz, as Branch secretary, engaged in correspondence with the Industrial Registrar under the Federal Act, for the purpose of ensuring that the Branch Rules were in the same terms as the rules of the South Australian Association. The fact that different requirements were imposed by the federal Act and the state Act and its predecessors, and that different persans were performing the functions under those Acts, inevitably led to some differences between the two sets of rules. A further complication was that, from at least as early as 9th May 1967, under the rules of the Union, a branch was required to submit any alterations in its rules to the Federal (later National) Executive for approval, before those alterations were sent to the Industrial Registrar for certification under s. 139 of the federal Act. The need for such consent invariably

resulted in a time lag between the registration of rule

20 - amendments under the state Act and their certification under the

The position was made even more complex by the fact that s0mé rule amendments which found their way into the rules of the South Australian Association were never certified by the Industrial Registrar under the federal Act. These amendments never became valid parts of the rules of the Branch. The most striking of these amendments were those which related to subscriptions. On 18th April 1961, the Branch rules were amended to fix subscriptions payable by members. The adult male rate was fixed at four pounds a year and rates for other categories were fixed at lesser sums. These amounts were not further amended in the Branch rules until 2nd November 1979, when the adult maie yate was raised to $52.00 a year, and the rates for other categories were also raised. In the meantime, the subscription rates for all categories in the rules of the South Australian Association had been increased in a number of stages. The annual rate for an adult male became six pounds on 26th February 1964, $15.00 on 16th December 1968, $18.70 on 24th December 1971, s26.00 on 14th January 1974, $36.40 on 10th January 1975, and $52.00 on 3rd January 1979. The first of these changes was submitted to and approved by the Federal Executive, but not forwarded to the Industrial Registrar for certification pursuant to s. 139(4) of the federal Act; it could not, therefore, operate as part of the Branch rules. The later changes were not approved by the Federal Executive. This situation seems to have resulted from a considerable antagonism, which has existed for

some time, between the officers of the Branch and some federal

The other major area in which the rules of the South Australian Association differed from those of the Branch was with respect to eligibility for membership. The eligibility of persons for membership of the Branch is determined by the rules of the Union. Any alteration to the rules in that respect can only be effective if the Industrial Registrar gives his consent to such alterations, after an application is made in the prescribed form, and the alterations are advertised and objectors given an opportunity to be heard. See s. 139(1}) and (2) of the

federal Act, and reg. 127 of the Conciliation and Arbitration

Regulations. Such an alteration could not be effected without action at the federal level of the Union. An alteration to the conditions of eligibility for membership of the South Australian Association did not depend upon any action at the federal level of the Union. The Branch Council could, and did, submit alterations to the state Industrial Registrar and, after the procedures laid down in the relevant South Australian legislation were carried out, these alterations became registered at the state level. Most of such alterations were prompted by decisions at the state level as to the eligibility of certain classes of persons to belong to the South Australian Association, and by the desire of the officials of the South Australian Association to obtain award coverage for persons who were members but were held to be, or might be held to be, in occupations which fell outside the constitution rule as it then stood. In some cases, classes of employees existed, the members of which had been eligible to

belong to the Union and the South Australian Association, but had

22 - become, or were thought to have become ineligible by reason of promotion, or changes in the nature of their employment. Their membership continued, but obstacles existed, or were thought to exist, to the obtaining of awards governing their terms and conditions of employment. As a consequence, the South Australian Association changed its constitution rule, in the hope of

obtaining award coverage with respect to those persons.

Since 27th November 1924, the constitution rule of the

The Union shall consist of all persons male and female engaged in any clerical capacity whatever and also those engaged in the occupation of shorthand writers and typists, or on calculating or other machines designed to perform or assist in performing any clerical work whatever."

As a result of a series of changes registered in South Australia on lst October 1941, Ist October 1943, 15th December 1959 and

25th May 1965, the constitution rule of the South Australian

The association shall consist of any person male or female

(a) engaged in or about an office. Without limiting the generality of the foregoing shall include:- any person 50 engaged

(ii) either wholly or partially in the occupations of shorthand writer, typist, teleprinter

operator, addressing machine operator, Gictation machine operator, punch card machine operator, cashier, receptioniste,

{iii) either wholly or partially in calculating whether by ordinary means, or by means of any machine designed to perform or assist in performing clerical work.

(iv) on invoicing, charging, billing, pricing, scheduling, planning, correspondence, books and accounts, checking or otherwise dealing with records, or in any other clerical capacity whatsoever.

(v) as salesman, tracer, draughtsman, or in any similar technical capacity.

(v1) as secretary, cost accountant, accountant, chief clerk, paymaster, sales manager, purchasing officer, production control officer, pay clerk, costs clerk, purchasing clerk, sales clerk, statistics clerk,

foreman''s clerk, timekeeper or any similar or other designated clerical position.

(b) engaged outside an office in any clerical capacity or as & meter reader.

(d) engaged as branch manager, sub-branch manager, auctioneer, wool valuer, wool technician, wool cadet or store manager by any Stock and Station Agent.

(e) engaged as two-way radio operator in connection with a fleet of motor vehicles.

(f) engaged as terminal officers, grain officers, senior inspectors or inspectors employed by South Australian Co-operative Bulk Handling Limited.

During Mr. Krantz's years as Secretary of the Branch and the South Australian Association, rule books were printed for distribution to office representatives, and to members and prospective members who sought copies of the rules. From 1947 onwards, these books have been printed within the office in Adelaide, by means of a duplicating machine. The purpose of this

was to enable the regular publication of the rules as amended

24 - from time to time. From 1953 until 1979 each of these rule books bore a note to the effect that the book contained the rules registered under the state Act, or the corresponding earlier South Australian legislation. Thereafter the books have been produced to show differences between the rules registered under the state Act and the Branch rules, where such differences exist,

and appropriate notes explaining this have been included.

The evidence is that the rules used as "working rules" during the 1950's, 1960's and 1970's were those printed in the rule books, namely those which were registered under South Australian legislation. Those rules were relied on in day-to-day operations. The then current rule book was given to the Commonwealth Bank during the 1960's, when the relevant bank

account was kept with that bank. A further copy of the rule

book, said to contain all amendments registered with the state Industrial Registrar up to 26th February 1964, was produced from the records of the branch of the A.N.Z. Bank at 185 Hutt Street, Adelaide. It had apparently been deposited with the Bank of Adelaide at that address, at or about the time the bank account

The terms and conditions of employment of some members of the Union in South Australia were governed by awards made under the federal Act, and the terms and conditions of other Members were governed by awards and agreements made under the state Act and its preceding legislation. In the witness box, Mr. Krantz estimated that approximately 31 per cent of members in

South Australia are subject to federal awards at the present

=- 25 - time. This figure was as high as approximately 50 per cent in

the mid 1960's, and was around 33 to 35 per cent during the

Various matters of fact were put forward by the parties for whom Dr. Jessup and Mr. Heywood-Smith appeared, in order to indicate the dominance in operation of the Branch over the South

Australian Association, or the latter over the former.

A letter dated 14th March 1928 to the state Industrial Registrar from the then Branch secretary was on paper bearing a letterhead listing branches of the Union in all other states. A hand-written letter to the state Industrial Registrar dated 7th April 1933, advising a change of registered office, described the change as having been effected by resolution of a general meeting of "members of the South Australian Branch of the Federated Clerks Union." By letter dated 12th August 1941, Mr. Krantz advised the state Industrial Registrar of his appointment as "Secretary of this Union." The letterhead also listed branches

In a letter to the State Secretary of the Australian Railways Union, dated 22nd September 1953, Mr. Krantz relied on limitations in the federal rules as a reason for refusing a plea for a donation towards the expenses of a person who had attended overseas conferences. Mr. Krantz's evidence was to the effect that it was convenient for the South Australian Association to be

26 - Mr. Haseldine gave evidence that the membership application card, which I have described, was treated by the

Branch Council and the officers in South Australia as being the

card appropriate for joining the South Australian Association.

Prior to 1970, office premises from which the affairs of the Branch and the South Australian Association were conducted were leased. Two leases of such premises are in evidence. The first, dated 22nd October 1941, shows the lessee as "Federated Clerks' Union of Australia S.A. Branch". The second, dated 9th March 1956, is in the name of "Federated Clerks Union of Australia South Australian Branch". Each bears the seal, a

Although there is no requirement in the rules of the Union, the Branch or the South Australian Association to issue membership cards, it has been the practice in South Australia for a card to be issued to each member as evidence of membership. Two versions of such cards are in evidence. The headings are of some interest. The earlier form of card which was introduced in the 1960's, bore the words "FEDERATED CLERKS' UNION OF AUSTRALIA" in heavy type, with the words "South Australian Branch" in smaller type underneath. The later card, used from about 1980, bore a crest in the shape of a shield, with the initials "F.C.U." and a representation of an ink well and quill pen, superimposed on a map of the Australian continent, beneath the Southern Cross. In it, the heading was altered, so that the words "Federated Clerks' Union of Australia" were no longer wholly capitalized,

and appeared in type of the same size as the words "South

27 - Australian Branch; a horizontal line was inserted between these

two inscriptions. The words "Founded 1905" were added.

One document tendered was a document entitled "Payroll

Deductions Remitting Advice", apparently emanating from Ansett

Airlines of Australia. It records the payment of contributions by members employed by that airline in Adelaide, by means of deductions from their wages or salaries, in the month ending 30th December 1979. Beside the words "Union or Association" in the form, the words "Federated Clerks Union" have been handwritten. The Union is, and has been for some years, a party to an award made under the federal Act, governing the terms and conditions of employment of certain persons employed by Ansett Airlines of Australia. The official receipt given for the payroll deductions headed "Federated Clerks' Union of Australia" in heavy type, with

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (939 paragraphs)

Cases Cited (1)

Cited By (1)