Gibbs, S.P. v The Palmerston Town Council [1987] FCA 732

Federal Court of Australia|1987-07-01|Before: Gray J

Industrial law - registered organization - whether employees members - whether previous resignations - whether requirement that membership "subject to the approval of the application by the Federal Executive" a condition subsequent - whether

Industrial law - employer and employee - dismissal - whether

by reason of proscribed circumstances - whether organization "seeking better industrial conditions" - whether employees dissatisfied with conditions - whether onus on employer

Municipal Officers - Palmerston Town Council (Northern

STEPHEN PHILLIP GIBBS v. THE PALMERSTON TOWN COUNCIL

The defendant, The Palmerston Town Council, is convicted

Arbitration Act 1904 ("the Act"), in that on 2nd June

that she was a member of the Municipal Officers' Association of Australia, an organization of employees registered pursuant to the Act;

that she had appeared as a witness in a proceeding under the Act; and

Association, which was seeking better industrial conditions, she was dissatisfied with her

The defendant is sentenced to pay a fine of $250.00 in

The defendant forthwith reinstate Margaret Mary Hooper in the position of finance officer or in a similar

The defendant reimburse Margaret Mary Hooper any wages lost by her asa result of her dismissal on 2nd June 1987.

The amount or amounts of such wages lost is or are reserved.

Liberty is reserved to either party to apply in respect of the amount or amounts of wages lost, upon giving

(NOTE: Settlement and entry of orders is dealt with by 0.36

IN THE FED COURT OF STRALIA } DIS' ctr I 4 ) No. V29 of 1987 ) INDUSTRIAL DIVISION ) 8 PHILLIP GIBBS Prosecutor

The prosecutor's application to amend the information and summons, by adding the words "or member" therein, is dismissed.

The defendant, The Palmerston Town Council, is convicted

Arbitration Act 1904 ("the Act"), in that on 29th May

(a) that he was a member of the Municipal Officers' Association, an organization of employees registered pursuant to the Act;

(b) that he had appeared as a witness in a proceeding under the Act; and

conditions, he was dissatisfied with his conditions. The defendant is sentenced to pay a fine of $250.00 in respect of the offence. The defendant forthwith reinstate Ronnie Richardson in the position of senior municipal inspector or in a similar position. The defendant reimburse Ronnie Richardson any wages lost by him as a result of his dismissal on 29th May 1987. The amount or amounts of such wages lost is or are reserved. Liberty is reserved to either party to apply in respect of the amount or amounts of wages lost, upon giving

(NOTE: Settlement and entry of orders is dealt with by 0.36

DATE: 21st December 1987 PLACE: Melbourne The defendant is charged on two informations with offences against s.5 of the Conciliation and Arbitration 1904 ("the Act"). So far as is relevant, that section

employee...by reason of the circumstance that the employee -

(a) is...an officer, delegate or member of an organization...

(d) being a member of an organization which is seeking better industrial

conditions, is dissatisfied with his conditions; or

(f) being an officer, delegate or member of an organization, has done...an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly

conferred on him by the organization in accordance with the rules of the

(4)In any proceedings for an offence against this section, if all the relevant

facts and circumstances, other than the reason or intent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it

lies upon the person charged to prove that that action was not actuated by that

reason or taken with that intent. (5)Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct

that the employee be reinstated in his old position or ina similar position."

In matter no. V28 of 1987, it is alleged that the defendant dismissed Margaret Mary Hooper by reason of a

number of the proscribed circumstances, cumulatively or

(i) that she was a member of the Municipal Officers'

that she appeared as a witness in proceedings under

the Act; that she, being a member of the Association, which was seeking better industrial conditions, was

defendant dismissed Ronnie Richardson by reason of a number

that he had appeared as a witness in proceedings under the Act;

that, being a member of the Association, which was seeking better industrial conditions, he was

submitted a grievance to the defendant on behalf of amember of the Association for the purpose of protecting the industrial interests of the members of the Association, which act was within the limits of authority expressly conferred on him by the

The Court was told by Mr. Strong of counsel for the prosecutor that the prosecutor is the federal secretary of the Association. Mr. Giudice of counsel for the defendant admitted that the defendant is a body corporate, capable of being charged with an offence in the name in which it is charged.

In a case such as this, the prosecutor carries the onus of proving beyond reasonable doubt the basic elements of the alleged offence, including the existence of each proscribed circumstance by reason of which it is alleged that the defendant acted. By reason of s.5(4) of the Act, the

defendant carries the onus of proving on the balance of probabilities that it was not actuated by any of the

proscribed circumstances alleged. This usually involves the

defendant establishing by evidence that each proscribed

circumstance alleged was not a substantial operative factor in the making of the decision to dismiss. See General Motors den Pty. Ltd. v. Bowling (1976) 12 A.L.R. 605, at p. 616

per Mason J. (as his Honour then was), and Lewis Construction

Co. Pty. Ltd. vv. Martin (1986) 70 A.L.R. 135, at p. 137 per Gray J.

By consent of the parties, the two proceedings were heard together, and the evidence in each proceeding was evidence in the other to the extent that it was relevant. It

is convenient to deal with the issues which arise under sub

(a) The Association is an organization of employees, registered pursuant to the Act, and therefore an organization

(b) Each of Mrs. Hooper and Mr. Richardson was an employee of the defendant. The town of Palmerston was set up as a satellite town of Darwin by the Northern Territory Government under legislation. The early stages of its development were carried out by an authority known as the Palmerston Development Authority. In July 1985, Palmerston was proclaimed a town council, with an elected council of a mayor and six other aldermen. Mr. Richardson was an

employee of the Palmerston Development Authority, and

continued in his employment with the defendant. At all relevant times, he was employed as the senior inspector, whose major responsibility involved the enforcement of the

Mrs. Hooper was employed by the Palmerston Development Authority as a rates clerk in July 1984. She was subsequently promoted to acting administration officer, and the title of her position was then changed to office manager. In October 1986, she was promoted to finance officer. As finance officer, she was in charge of the finance unit of the administration section of the defendant, and was required to perform various supervisory duties in relation to accounts and the collection and expenditure of

(c) Each of Mrs. Hooper and Mr. Richardson was dismissed by the defendant from her or his employment. Mr. Richardson attended at his place of work on Friday 29th May 1987, and was given a letter signed by the Acting Town Clerk, Mr. Barry Strichen, in the following terms:

"At a Special General Meeting of Council on the 28 May, 1987, it was resolved that after viewing the

' operation of Council it was deemed that your services are no longer required and you are to be terminated forthwith.

Please ensure that all Council property is returned to the

Administration Manager before you leave the premises.

from the Administration Manager on return of the property."

Mrs. Hooper returned to work on Tuesday 2nd June 1987, after being on sick leave. She was handed a letter signed by Mr. Strichen, in terms similar to that given to Mr. Richardson. Each of the two dismissed employees was offered a cheque said to be for a sum covering her or his entitlements to the date of dismissal. Fach refused to

accept the cheque. Neither cheque contained any sum in lieu

of notice; payment was up to the date of dismissal only.

(d) Each of Mrs. Hooper and Mr. Richardson had appeared as a witness and had given evidence in a proceeding under the Act. Once the defendant was proclaimed as a town

council, the Association sought to rope it into the Municipal Officers (Northern Territory) Award 1982, an award binding

other local government authorities in the Northern Territory. The defendant resisted this claim, and sought an award in terms of the conditions to which employees had been entitled under the Palmerston Development Authority, namely conditions prevailing for limited tenure employees in the Northern Territory Public Service. The resulting dispute was arbitrated by Commissioner Connell of the Australian Conciliation and Arbitration Commission. The Commissioner

heard evidence and submissions over several days, including

22nd July 1986. On that day, both Mr. Richardson and Mrs.

Hooper gave evidence before the Commission. On 5th December

1986, Commissioner Connell gave his decision, and made an

award entitled the Municipal Officers - Palmerston Town Council (Northern Territory) Award 1986. This decision and

award represented a substantial victory for the defendant; it involved the rejection of the argument that. standard Northern Territory local government conditions should be applied to the defendant. The conditions of employment laid down by Commissioner Connell's award were largely those prevailing in the Northern Territory Public Service. The Association appealed from this decision and award. On 20th January 1987, the operation of the Municipal Officers - Palmerston Town Council (Northern Territory) Award 1986 was stayed pending the determination of the appeal or until further order of the Commission. On 26th March 1987, a full bench of the Commission heard the appeal. The decision on the appeal was delivered on 15th May; in substance, the

full bench ruled in favour of the award, subject to variations being made to reflect more accurately the

conditions applied by the defendant at the date when the award was first made. The proceeding was referred to a Commissioner for this purpose. The stay order remained in force until 5th June 1987, 7 days and 3 days respectively after the dismissals of Mr. Richardson and Mrs. Hooper. They did not therefore have the benefit of cl.17 of the Award, which would have restricted in a number of ways the right of

DISPUTED ALLEGATIONS ON WHICH THE PROSECUTOR CARRIES THE ONUS OF PROOF.

(a) That each of the Mrs. Hooper and Mr. Richardson was a member of the Association was the subject of dispute. Before joining the Palmerston Development Authority, each was employed by the Darwin City Council. It is not disputed that each was a member of the Association at the time when

When he left the Darwin City Council, Mr. Richardson spoke to John Walkley, an industrial officer attached to the South Australia and Northern Territory Branch of the Association. Mr. Richardson told Mr. Walkley that he understood that he was no longer eligible to be a member of the Association. A letter dated 17th September 1984 from the Darwin City Council to the Association contained a list of persons who were described as having "resigned". The list included "M. Hooper 23 July 1984" and "R. Richardson 2 March 1984". These dates coincide with the dates when Mrs. Hooper and Mr. Richardson joined the

The branch kept a card for each of the _ two, recording the details of their membership. On ist October 1984, Mr. Richardson's card was endorsed "resigned 2.3.84"

of money was then owing by either to the Association.

(£1) the member ceases to be employed in or in connection with the industry of the

(ii) the notice is given not less than three months before the resignation is to take effect and payment is made of all subscriptions, fines and levies owing by the member to the Association under these Rules to the date on which the resignation is to take effect.

Notice of resignation shall be addressed to the Branch Secretary and delivered to that officer.

Any member resigning under paragraph (i) hereof shall be liable for the payment of all subscriptions, fines and levies owing to the Association under these Rules at the date of leaving, and such monies may be sued for and recovered in the name of the Association."

the Act. Certain provisions of rule 7, relating to admission

the Association shall forward or cause to be forwarded to the Secretary of the appropriate Branch in the State in which the applicant resides or works a signed application for membership in the Association.

membership shall be considered by the Branch Secretary when received, and unless referred by the Branch Secretary to the next meeting of the Branch Committee of Management the applicant shall be and be deemed to be a member of the Association as from the date of the receipt of the application by the Branch Secretary, and shall be liable to pay for the first year of membership only a subscription for the

All applications for admission to membership shall be forwarded by the Branch Secretary receiving the same to the Federal Secretary within three months of receipt.

An application for membership of the Association from a

person who previously has resigned from or been expelled from the Association shall be conditional on the payment of any moneys owing by the applicant to the Association and subject to the approval of the application by the Federal Executive. Provided that acceptance of a person as a member shall not be invalidated by non-disclosure of previous resignation or expulsion.

On 26th September 1985, after the proclamation of the defendant as a town council, Mr. Richardson completed and signed an application for membership of the Association.

This application was considered by Theodore Marks, the branch

secretary of the South Australia and Northern Territory Branch of the Association and was not referred to the next meeting of the branch committee of management. The application was processed in the records of the branch on 7th March 1986. In approximately January 1986, Mrs. Hooper completed and signed an application for membership, which was handed to a_ representative of the Association. Apparently this application was lost. Mrs. Hooper therefore completed and signed another on 6th January 1987. This application was received at the branch office on or about 22nd January. It was considered by Mr. Marks and not referred to the next meeting of the branch committee of

It was the prosecutor's case that the respective membership applications were perfected on the dates on which they were considered by Mr. Marks, in accordance with rule 7(b)(i). The defendant argued that neither applicant became a member because each had resigned previously and there was no evidence of approval of either application by the federal

executive of the Association, pursuant to rule 7(f).

There are two problems with the defendant's argument in this respect. In the first place, it is by no means clear that either Mrs. Hooper or Mr. Richardson had resigned from membership previously. The authorities establish that, unless the rules of a registered organization s0 provide, membership does not cease automatically if a member ceases to be employed in an occupation which falls within the eligibility rules of the organization. Some of the

cases which establish this proposition are collected

conveniently in Re An Application by Pritchard; Re Federated

Clerks' Union of Australia (S.A. Branch) (1985) 12 F.C.R. 66, at p. 73. To them should be added Turner v.

Australasian Coal & Shale Employees' Federation (1984) 6 F.C.R. 177, at p. 194. The rules of the Association do not

provide for the automatic cessation of membership if a member should cease to be employed in any of the occupations referred to in rule 5, which contains the Association's conditions of eligibility for membership. Even if such a rule

existed, the evidence does not disclose that the employment

of Mr. Richardson and Mrs. Hooper with the Palmerston Development Authority took them outside rule 5. The

Palmerston Development Authority would fall within "Statutory Authorities, Corporations, Trusts, Boards or Commissions" within that rule, and on the limited evidence before me, was exercising "functions of a public nature in = some way

analogous to those exercised by local authorities." See R.

v. Gough; Ex parte Municipal Officers' Association of Australia (1975) 133 C.L.R. 59, at p. 69 per Gibbs, Stephen,

Mason and Jacobs JJ. and Burgess v. Municipal Officers'

Association of Australia (1985) 9 F.C.R. 115, at p. 120 per Evatt and Northrop JJ. There is nothing in the present case

that could be construed as a resignation or notice of resignation in writing, so as to satisfy the requirements of rule 9(a)(1i1) of the Association's rules or s.145(1)(b) of the Act. In this respect, Mr. Giudice relied on the letter dated 17th September 1984 from the Darwin City Council to the Association. He argued that the Darwin City Council was the agent of each of Mr. Richardson and Mrs. Hooper for the collection and payment of contributions (by the payroll deduction scheme), and so was their agent also for the purpose of communicating their resignations from membership. An employer collecting contributions regularly and paying

them to a trade union is not necessarily the agent of the

employees from whom the dues are collected, but may be the

agent of the trade union. See Re Federated Liquor & Allied Industries Employees' Union of Australia; Ex parte Farrow

(1976) 27 F.L.R. 430, at p. 433. Even if there were an agency relationship for the purpose of paying contributions, the employer as agent would not necessarily have authority to bring about the cessation of the employees' union membership by notifying his or her resignation. In the present case, a question of construction also arises. The letter from the Darwin City Council simply informs the Association that certain persons have "resigned". On its face, the letter seems to refer to resignation from employment with the Darwin City Council, not from membership of the Association. Some of those listed as having "resigned" may have been taking up employment which would fall within the conditions of eligibility of the Association, and might desire to remain members of the Association. In such cases, it would be strange if notification by the Darwin City Council that they had "resigned" was enough to terminate their membership of the Association. The letter uses the past tense; it does not have the appearance of giving notice of resignation. In the case of any persons who were resigning from the Darwin City Council to undertake employment elsewhere in, for example, local government, there was no attempt to give three months' notice. There is authority that provisions such as rule 9(a) should be construed strictly, and that where a period of notice is required, notice of resignation can only be effective if it specifies the date of resignation

expressly or by implication. See Hassett v. Harding (1976) 27 F.L.R. 457, at pp. 461-463. In the present case,

there is no evidence of any resignation that would comply with rule 9(a) of the rules of the Association, or s.145(1) of the Act. It follows that the membership of Mr. Richardson and Mrs. Hooper continued after they left their employment with the Darwin City Council.

The second problem for the defendant arises if I am incorrect in the conclusion that there was no resignation from membership by either Mrs. Hooper or Mr. Richardson. The defendant's argument assumed that the requirement in rule 7(f) of the rules of the Association, that an application from a person who had resigned previously was subject to the approval of the federal executive, was a condition precedent to membership. In my view, this is not so. The change of language from "conditional on the payment of any moneys owing" to "subject to the approval of the application by the federal executive" suggests that the rule intends to make the latter requirement a condition subsequent, not a condition precedent. Anomalies would result from the rule as it appears presently if this were not so. A previous

member applying to rejoin and failing to disclose previous membership would take advantage of the proviso to rule 7(f)

and would become a member, but disclosure of previous membership (or knowledge by an official of this fact) would mean that an applicant never became a member unless and until the federal executive voted on the application. It was urged

that the proviso had been added to the rule at a later time

than the creation of the balance of rule 7(f), and that therefore anomalies created by the proviso should be disregarded. In my view, however, the proviso was intended to deal with the situation in which membership could be struck down by a federal executive decision years after the making of an application, upon the discovery of previous membership. The scheme of the rules is that membership should commence on the date of receipt of the application by a branch secretary. Rule 7(d) is designed, among other things, to notify the federal secretary, who can bring to the attention of the federal executive the application from a previous member. The federal executive may then reject the application, although would probably be required to afford natural justice to an applicant before doing so. In Re Australian Glass Workers' Union (1973) 22 F.L.R. 17, at pp. 26-27, Smithers J. held that a provision in the rules of an organization that membership should be "subject to the endorsement by the branch management committee" made that endorsement a condition subsequent to membership. In my view, the same conclusion should be reached as to the

requirement of approval of an application by the federal

On any view, therefore, Mr. Richardson and Mrs. Hooper were members of the Association at the time when they were dismissed from their employment. They were members

either by the continuance of their earlier membership, from

the time when they were employed by the Darwin City Council,

or by virtue of their respective applications after the

defendant was declared a town council. On the evidence, the correct view is that they never resigned, and so remained members throughout. It is to be noted that the prosecutor was allowed by consent to reopen his case on the subject of membership, but called no evidence of any notice in writing of resignation following the cessation of Mr. Richardson's or Mrs. Hooper's employment with the Darwin City Council.

The proper conclusion is that both remained members of the

(b) Whether Mr. Richardson was a delegate of the Association was also in dispute. Rule 18(a) of the

"A majority of members employed in any area of membership or part thereof may with the approval of the Branch Committee of Management appoint from amongst their number a person or persons to act as Steward or Stewards, or Workplace Representative or Workplace Representatives and advice of such appointment shall be given to the Branch Secretary and approved by the Committee of Management. Failing such appointment, the Branch Committee of Management shall have the power to appoint a Steward or Stewards, or Workplace Representative or Workplace Representatives and the Branch Committee of Management may at any time terminate the appointment of the Steward or Workplace Representative however appointed.

Stewards or Workplace Representatives shall have such rights and duties as Federal Council or Federal Executive may from time to time determine together with additional rights and duties as are determined by the Branch Committee of Management."

On 21st May 1986, a meeting of all of the members of the Association employed by the defendant elected Mr. Richardson unopposed as a workplace representative. Two industrial officers of the association, Kym Wilmott and Sharon Holmes were present. At that time, Mr. Richardson enquired about the payment of contributions to the Association. He was told by Ms. Wilmott and Ms. Holmes not to worry about paying them then; it was said that the Association would make arrangements inthe future for the payment of contributions by payroll deduction and when these arrangements were settled, all arrears could be paid by all

On 26th May 1986, Ms. Holmes reported to a meeting of the branch committee of management as to the election of Mr. Richardson as a workplace representative. In the minutes

of that meeting, there appears under the heading "Appointment of Workplace Representatives" a resolution "that in

accordance with Association Rule 18, the following members be appointed as Workplace Representatives for the period 24.3.86 to 30.6.87..." there follows a list of persons,

among whom is "R. Richardson - Palmerston Town Council". By

letter dated 4th June 1986, Mr. Marks wrote to Mr. Richardson, advising him that the branch committee of management had recently appointed him as workplace representative for Palmerston Council until 30th June 1987. By another letter of the same date, Mr. Marks advised the town clerk of the defendant of Mr. Richardson's appointment

In January 1987, a system of payroll deduction was instituted for the payment of contributions of members of the Association employed by the defendant. At that time, Mr. Richardson paid to the Association arrears of contributions demanded by it. There is no evidence of the amount paid by Mr. Richardson, or of the manner of calculation of his arrears, but there is clear evidence that on the books of the

Association Mr. Richardson is treated as having paid all that was required. It is also clear that he paid nothing in

respect of the period between the cessation of his employment with the Darwin City Council and the date of his purported

rejoining. No sum in respect of this period was demanded of him, because he was not regarded as a member during that

Rule 11 of the rules of the Association relates to subscriptions. So far as is relevant, it provides as

A member shall pay to the Association either an annual subscription in advance or a payroll deduction subscription in accordance with the scales as determined from time to time by Federal Council or Federal Executive and in accordance with sub-rules (b) and (c) herein.

Payment of annual subscriptions may be made annually in advance on the Ist day of July in each year or at the option of the member either -

(1) by half-yearly instalments in advance on the lst days of July and January in each year; or

(11) by quarterly instalments in advance on the list days

Such subscriptions shall be paid to the Association and collected for it by the Branch Secretary or an authorised agent.

Payment of payroll deduction subscriptions may be made where a member has authorised an employer to deduct the subscription from salary and the employer has agreed to make

such deduction and regularly remit the subscriptions to the

In special circumstances the obligation of a member to pay a subscription or arrears of subscription may be waived by the Federal Executive on the recommendation of a Branch Committee of Management. Provided that the Federal Executive may delegate its power to waive subscriptions or arrears to subscriptions to a

Branch Committee of Management and in so doing may establish such policies or guidelines as the Federal Executive determines."

"(a) (1) A member owing annual subscriptions or fines or levies for a period of 3 months after they first become due shall be deemed to be unfinancial.

membership including the right to hold or continue to hold

office or to participate in any ballot of members of the Association or to vote or speak at any meeting of the Association or Branch. It shall not be necessary to serve an unfinancial member with any notice of meeting."

The defendant took the point that Mr. Richardson could never have been appointed a workplace representative in accordance with the rules of the Association, because he was unfinancial and rule 13(b) deprived him of any entitlement to be so appointed. In response to this, the prosecutor advanced a number of arguments designed to establish that Mr. Richardson was a "delegate" within the meaning of s.5(1)(a) and (f) when he was dismissed on 29th May 1987.

The first argument was that Mr. Richardson was financial on 21st May 1986, having paid all that was demanded of him by the Association, or having had the payment of his contributions deferred by Ms. Holmes. The obligations of a member to pay are set out clearly in the rules, particularly rules 11(b) and (c), already quoted. Express provision is made in rule 1l(d) for waiver of the requirement that a member pay a subscription. There is no express power in the rules of the Association which would enable the deferral of the obligation to pay subscriptions. It is not at all clear that a branch committee of management would have the power to defer the obligation to pay. Further, there is no evidence in the present case that the branch committee of management or any other governing body purported to authorize Ms. Holmes to allow the deferral of subscriptions. Any such authority may not be valid if it had been given. No doubt it was convenient for the Association to defer payment. Undoubtedly there is some injustice in holding that a person who is willing to pay and is told by an official of the Association not to pay is to be regarded as unfinancial. This injustice was recognised in Re Slaters, Tilers & Roofing Industry. of Victoria (1983) 72 F.L.R. 411, in which it was held that the nomination for election of a member who had tendered his union dues to the secretary of the union at the union office, but whose tender had been rejected by the

secretary, amounted to an irregularity. It was there held

that the rules did not operate to make such a ~*member unfinancial, and if they had the rules would have contravened

$.140(1)(c) of the Act. That decision is undoubtedly correct in holding that, in the circumstances, an irregularity resulted from the rejection of the member's nomination. It does not stand, however, as an authority that in all cases a member who pays all that is demanded is financial. There

are cases which provide instances where members of registered organizations who have paid all moneys demanded of them have

nevertheless been held to be unfinancial. In Re Federated

Clerks' Union of Australia; Ex parte Tanner (1986) 70 A.L.R. 79, at pp. 94-96, it was held that a person who joined

late in a period for which he was obliged to pay a subscription, but of whom such a subscription had not been

demanded, was unfinancial some years later, the arrears

having carried forward. In Re Application by Brophy for an

Inquiry into an Election in the Federated Clerks Union of Australia (Federal Court of Australia, Keely J., 5th June

1987, not yet reported), it was held that all members who had been allowed a 20% ""rebate" of contributions by a branch council, which had no power under the rules so to reduce contributions, were unfinancial. In each case, the members concerned could have claimed that they had paid all that was

demanded of them. In Rowling v. Harding (1976) 27 F.L.R. 369, at pp. 372-374, the Australian Industrial Court held that members of an organization who had failed to pay

entrance fees were nevertheless financial, as no demand had

been made of them for such fees. A distinction was drawn, however, between the rules of that organization providing for the payment of contributions by specified times, and the absence of any similar provision with respect to entrance

fees. In my view, where the rules of an organization provide for the payment of contributions by specified dates, and provide for the status of an unfinancial member if contributions are not paid, effect must be given to those rules even if, for the sake of convenience, officers of the organization have purported to waive or defer the obligation to pay contributions. This conclusion is all the more inevitable in a case such as the present, in which the rights of a party other than the organization and the member concerned are affected. Not having paid any subscriptions since the date of his "rejoining" of the Association, Mr. Richardson was unfinancial by virtue of rule 13(b) on 21st May 1986. Further, on the view which I take, he never became financial up to the time of his dismissal; his failure to pay any sum in respect of the period between the cessation of his employment with the Darwin City Council and his purported rejoining, during all of which time he remained a member of the Association and obliged under its rules to pay

On the assumption that Mr. Richardson was not financial, the prosecutor attempted to argue that he could

nevertheless be elected as a workplace representative,

because this was not an "office" within the meaning of rule 13(b). That may be a correct construction of the rules, but Mr. Strong conceded that the ability to be elected as a workplace representative was a right or privilege of membership, within rule 13(b). Such a right or privilege could not be conferred on Mr. Richardson on 21st May 1986,

In the alternative, the prosecutor argued that if Mr. Richardson could not be elected by his fellow members at

Palmerston, he could be appointed by the branch committee of Management under rule 18(a), and that the resolution of 26th May 1986 could be justified under the power so given to the branch committee of management. It was argued that rule 18(a) permitted even the appointment of a non-member of the Association as a workplace representative, for example where it was desired to appoint an experienced or capable delegate of another union to lead or assist a less experienced or

less talented member. It followed from this, so it was said that the appointment of an unfinancial member was permitted. In my view, even if the rules do permit the appointment of a non-member, when a member is appointed as a workplace representative, this is a right or privilege of membership within rule 13(b), s0 cannot be conferred on an unfinancial member. Even more importantly, the power of the branch committee of management under rule 18(a) to appoint a

workplace representative is exercisable "failing such

appointment", i.e. failing an appointment by the majority of members employed in the area of membership concerned. on 26th May 1986, the branch committee of management was acting on the basis that Mr. Richardson had been appointed by the members at Palmerston. It was not purporting to exercise its own power of appointment. The result is that Mr. Richardson was never validly appointed as a workplace representative on

It was then argued by the prosecutor that Mr. Richardson became a delegate by specific authorization to act, given to him by Mr. Marks during the events leading up to Mr. Richardson's dismissal. The details of these events will be given later. The short answer to this submission is that, on the view which I take, Mr. Richardson was unfinancial at all relevant times. Even at a later stage of his employment, rule 13(b) prevented the right or privilege

of representing the members being conferred on him validly.

In case Mr. Richardson was found not to have been a delegate, the prosecutor sought leave to amend the information in matter no. V29 of 1987, during the trial, to add an alternative allegation that Mr. Richardson conveyed

the grievance of Mrs. Hooper as a member, for the purposes of s.5(1)(f) of the Act. By consent, the application for leave

to amend was deferred until final addresses. Evidence was

given of the adoption by the federal council and federal executive of the Association of policies under which members may become authorized to act on behalf of the Association for specific purposes. Because Mr. Richardson was never financial, however, such specific authority was aright or

privilege that could not be conferred on him as a_ member;

it was a right or privilege of membership within rule 13(b). If the information were to be amended, the charge in the amended form could not succeed. The proper course is to

It follows from what I have said that the charge in respect of Mr. Richardson must be dismissed in so far as it relies on the allegation that he was a "delegate", for the purposes of s.5(l)(a), and so far as it depends upon s.5(1)(f) of the Act. The prosecutor has failed to establish beyond reasonable doubt that Mr. Richardson was a

(c) There was also a dispute as to whether the proscribed circumstances the subject of 3.5(1)(d) were proved to exist, namely that the Association was seeking better industrial conditions and that each of Mr. Richardson and Mrs. Hooper was dissatisfied with his or her conditions. Section 5(1)(d) requires that there be identified industrial conditions which the relevant organization is seeking to

better, and that the employee member must be dissatisfied

with the same industrial conditions. See Heidt v. Chrysler Australia Ltd. (1976) 26 F.L.R. 257, at pp. 268-270, and

Stapleton v. African Lion Safari Pty. Ltd. (1982) 65 F.L.R. 61, at pp. 67-68.

In the present case, the Association was seeking an award to bind the defendant. The history of proceedings in relation to this claim has already been set out. There is no evidence of the precise terms of any claims which led to the dispute in settlement of which the award was sought. It is noted, however, that the award which was made included cl.17, which related to the circumstances in which employees of the defendant might be dismissed. In the award made by Commissioner Connell on Sth December 1986, that clause

"(a) The rules of natural justice will be applied to dismissal proceedings and Council will not act harshly, unjustly or unreasonably in dismissing an employee.

At a glance

Court

Decision date

Before

Source

Judgment (591 paragraphs)