Gilchrist v Australian Municipal, Administrative, Clerical & Services Union

Federal Court of Australia|1998-12-18|Before: North J, Lee J

REASONS FOR JUDGMENT 1 The applicants have applied to the Court under s 253ZJ of the Workplace Relations Act 1996 (Cth) ("the Act") for an order that a ballot be held to decide whether a "constituent part" of the respondent ("the Union") should withdraw from the Union. 2 The proceeding now before the Court is a motion by the Union for an order dismissing the application as incompetent. In response to the motion the applicants seek leave to amend the application. 3 The Union is an "amalgamated organisation" under the Act. On 1 July 1993 the Union was formed by the amalgamation of three separate organisations registered under the Act (the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union; the Federated Clerks Union of Australia; and the Federated Municipal and Shire Council Employees Union of Australia). The applicants are the Committee of Management of the Local Government, Community Services, Public Authorities and Racing (MEU) Western Australian Branch of the Union ("the Branch"). 4 It is said that the Branch remains identifiable as the former Western Australian Division of the Federated Municipal and Shire Council Employees Union of Australia as it existed before amalgamation. 5 Section 253ZJ of the Act reads as follows: "253ZJ(1) An application may be made to the Court for a ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if: (a) the constituent part became part of the organisation as a result of an amalgamation under Division 7 after 1 February 1991; and (b) the amalgamation occurred no less than 2 years prior to the date of the application; and (c) the application is made: (i) if the amalgamation occurred before the commencement of this Division - no more than 3 years after that commencement; or (ii) if the amalgamation occurred after the commencement of this Division - no more than 5 years after the amalgamation occurred. 253ZJ(2) However, an application cannot be made if: (a) during the last 12 months, the Court has rejected an application for a ballot to be held in relation to the constituent part of the organisation; or (b) a ballot was held that rejected the withdrawal of the constituent part. 253ZJ(3) The application may be made by: (a) the prescribed number of constituent members; or (b) a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or (c) if the application relates to a separately identifiable constituent part - the committee of management of that part. 253ZJ(4) The application must be in the prescribed form and must contain such information as is prescribed." 6 The date of commencement referred to in s 253ZJ(1)(c)(i) is 31 December 1996. The application was filed on 31 December 1999. 7 Regulation 98J of the Workplace Relations Regulations ("the Regulations") states that the form prescribed for the purposes of s 253ZJ(4) of the Act is Form 11A ("the Form") and the information prescribed as that which must be contained in the Form is set out in reg 98J(a), namely the particulars stipulated in the Form. 8 The Form reads as follows: "FORM 11A Regulation 98J Workplace Relations Act 1966 APPLICATION FOR BALLOT UNDER DIVISION 7A OF PART IX TO: THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA (sic) I/We, (full name(s) of applicant(s))/We, the applicants listed in the schedule to this application*, being the prescribed number of constituent members/the committee of management of the constituent members*: (a) apply for a ballot to be held to decide whether (name of constituent part of amalgamated organisation) should withdraw from (name of amalgamated organisation); and (b) specify (name), of (address) as the representative constituent member for the purposes of the ballot. *omit if inapplicable

PARTICULARS

Name of the amalgamated organisation appearing on the certificate of registration of the amalgamated organisation:
If the constituent part of the amalgamated organisation is a part of the membership of the amalgamated organisation that would have been eligible for membership of an organisation that was formerly registered under the Act - the name appearing on the certificate of registration for that organisation immediately before amalgamation day:
If the constituent part of the amalgamated organisation is a part of the membership of the amalgamated organisation that would have been eligible for membership of a State or Territory branch of an organisation that was formerly registered under the Act: (a) a statement of that fact: (b) the name appearing on the certificate of registration of the organisation immediately before amalgamation day: 3A. If the constituent part of the amalgamated organisation is a separately identifiable constituent part of the amalgamated organisation: (a) a statement of that fact: (b) the name of the branch, division or part of the amalgamated organisation that is the separately identifiable constituent part: (c) the name of the organisation, de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation, that remains, or the State or Territory branch of which remains, separately identifiable under the rules of the amalgamated organisation as a branch, division or part:
Particulars of the eligibility rules of the amalgamated organisation immediately before amalgamation day:
Particulars of the rules, immediately before amalgamation day, of: (a) the organisation, de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation, or the State or Territory branch of the organisation, in relation to which the persons constituting the constituent part would have been eligible for membership if the de-registration had not occurred; or

(b) the organisation, de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation, or the State or Territory branch of the organisation, that remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part: 6. Name proposed for the amalgamated organisation after withdrawal day: 7. Name proposed for the constituent part after withdrawal day: 8. If it is proposed that the eligibility rules of the amalgamated organisation be changed after withdrawal day - particulars of those changes: 9. If it is proposed that the rules of the constituent part will differ, after withdrawal day, from the rules described in clause 5 above - particulars of those changes: 10. Particulars of the assets and liabilities of the amalgamated organisation: 11. Particulars of the assets and liabilities of the constituent part before it, or the organisation of which it was a State or Territory branch, was de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation: 12. Particulars of any proposal by the applicant for the apportionment of the assets and liabilities of the amalgamated organisation and the constituent part to assist the court to comply with the requirements of section 253ZP of the Act: 13. Question proposed to be put to the ballot: Dated 19 . (sic) ……………………………... Signature of applicant/s* SCHEDULE Applicants*:

omit if inapplicable" 9 The proceedings were initiated in this Court pursuant to s 253ZJ by an application made under O 48 r 10 of the Federal Court Rules ("the Rules"). The application sensibly combined the standard form of application prescribed by the Rules and the form of application prescribed by the Act. The application was supported by an affidavit to which the completed prescribed form was an exhibit. The prescribed form filed by the applicants read as follows: "Form 11A (Regulation 98J) 'Workplace Relations Act 1996' APPLICATION FOR BALLOT UNDER DIVISION 7A OF PART IX TO: THE FEDERAL COURT OF AUSTRALIA We, the applicants listed in schedule 1 to this application, being the committee of management of the constituent members: (a) apply for a ballot to be held to decide whether the Local Government, Community Services, Public Authorities & Racing (MEU) Western Australian Branch of the Australian Municipal, Administrative, Clerical & Services Union should withdraw from the Australian Municipal Administrative Clerical & Services Union; and (b) specify Adrian Frank Bennett of Lot 21, Johnston Road, Parkerville in the State of Western Australia as the representative constituent member for the purposes of the ballot. PARTICULARS 1. The name of the amalgamated organisation appearing on the certificate of registration of the amalgamated organization is Australian Municipal Administrative, Clerical & Services Union. 2. The constituent part of the amalgamated organisation is a part of the membership of the amalgamated organisation that would have been eligible for membership of an organisation that was formerly registered under the Act and the name appearing on the certificate of registration for that organisation immediately before amalgamation day was the Federated Municipal & Shire Council Employees Union of Australia. 3. (a) The constituent part of the amalgamated organisation is a part of the membership of the amalgamated organisation that would have been eligible for membership of a State or Territory branch of an organisation that was formerly registered under the Act.

(b) The name appearing on the certificate of registration of the organisation immediately before amalgamation day was the Federated Municipal and Shire Council Employees Union (MEU) Western Australian Division. 3A. (a) The constituent part of the amalgamated organisation is a separately identifiable constituent part of the amalgamated organization. (b) The name of the branch, division or part of the amalgamated organisation that is the separately identifiable constituent part is the Local Government, Community Services, Public Authorities & Racing (MEU) Western Australian Branch of the Australian Municipal Administrative, Clerical & Services Union. (c) The name of the organisation, de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation, that remains, or the State or Territory branch of which remains, separately identifiable under the rules of the amalgamated organisation as a branch, division or part is the Federated Municipal & Shire Council Employees Union of Australia, Western Australian Division. 4. The particulars of the eligibility rules of the amalgamated organisation immediately before amalgamation day were as follows: The Union shall consist of an unlimited number of bona fide employees of Municipal Country and Shire Councils or other Local Government Authorities as Trusts, Municipal Trusts, Water Supply and or Sewerage Boards or Trusts, Road Boards and other Boards, Corporations, Commissions or Trusts carrying out or entrusted with the carrying out of works operations as functions similar to those usually or generally performed by Municipal or Shire Councils or other Local Government Authorities before the appointment of such Boards, Corporations, Commissions or Trusts and of such other persons whether employed in the relevant industry or not as have been or are hereafter appointed officers of the Union and admitted as members hereof. In the State of Western Australia, Health Boards, the Board or governing body of any park, Reserve or Racecourse, Cemetery Board of any person acting for, under or on behalf of any such Boards or bodies. 5. The particulars of the rules, immediately before amalgamation day, of:

(a) the organisation, de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation, or the State or Territory branch of the organisation, in relation to which the persons constituting the constituent part would have been eligible for membership if the de-registration had not occurred; or Any City Council, any Shire Council, Municipal Council, Health Board, Road Board as the Board or governing body of any park, reserve or racecourse or Cemetery Boards or Water Boards or by any body or person acting for or under (sic) behalf of the above mentioned local governing bodies or authorities. (b) the organisation, de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation, or the State or Territory branch of the organisation, that remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part: Any City Council, any Shire Council, Municipal Council, Health Board, Road Board as the Board or governing body of any park, reserve or racecourse or Cemetery Boards or Water Boards or by any body or person acting for or under (sic) behalf of the above mentioned local governing bodies or authorities. 6. The name proposed for the amalgamated organisation after withdrawal day is the Australian Services Union. 7. The name proposed for the constituent part after withdrawal day is the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities, Water Boards (MEU) Union. 8. It is proposed that the eligibility rules of the amalgamated organisation be changed after withdrawal day - particulars of those changes: Rule Part X on page 8 to be amended so that the words '…in the State of Western Australia, Health Boards; the board or governing body of any park, reserve, racecourse, cemetery board or any person acting for, under or on behalf of any such boards or bodies' shall be deleted and replaced with '…shall not admit to membership any person who is a member or who is eligible to be a member of the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemetery and Racecourse, Public Authorities, Water Boards (MEU) Union.' 9. It is proposed that the rules of the constituent part will be amended after withdrawal day in order to effect the de-amalgamation including deleting all references to payments of affiliations to and through the National Body. 10. Particulars of the assets and liabilities of the amalgamated organisation are outlined in schedule 2. 11. Particulars of the assets and liabilities of the constituent part before it, or the organisation of which it was a State or Territory branch, was de-registered under Division 7 of Part IX of the Act in connection with the formation of the amalgamated organisation shall be provided. 12. The Applicant submits that the assets and liabilities of the amalgamated organisation and the constituent part should be apportioned so that: All assets and liabilities of the Local Government, Community Services, Public Authorities and Racing (MEU) Western Australian Branch of the Australian Municipal Administration, (sic) Clerical and Services Union as transferred from the Federated Municipal and Shire Council Employees Union of Australia (MEU) Western Australian Division be fully transferred to the new body, the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemetery and Racecourse, Public Authorities, Water Boards (MEU) Union. 13. Question proposed to be put to the ballot: Are you in favour of an independent Western Australian Union run by WA membership by dis-amalgamating from the ASU? Dated 31 December 1999. [signed Adrian Bennett] ………………………………… Signature of Adrian Bennett on behalf of the Applicants Schedule 1 Cedric Gilchrist Dick Rayner Adrian Bennett June Kirwan Douglas Fieldhouse Peter Newman Andrea Ballantyne Andrew Johnson Megan Kirwan Sean Healy" 10 The Union submitted that s 253ZJ and reg 98J were expressed in mandatory terms and that failure to comply with a requirement of those provisions invalidated the application. It was submitted that the provisions expressed the intention of the legislature to exclude the operation of s 25C of the Acts Interpretation Act 1901 (Cth), which provides that unless a contrary intention appears in the legislation, strict compliance with a form is not required and substantial compliance is sufficient. 11 The intention of Parliament is not discerned by having regard to whether mandatory or directory terms have been used in the drafting of the legislation. It does not follow that where the words "must" or "shall" are used to describe the obligation to comply with the requirements of a form, invalidity will follow any non-compliance. Construction of such statutory provisions turns on whether it is the purpose of the legislation that a non-conforming form be treated as invalid and that question is to be answered by considering the function of the form, the relevant context of the statutory provisions and the object of the statute as a whole. 12 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ set out the relevant test at pp 390-391: "In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." [Footnotes omitted] 13 The same test of legislative purpose applies to determine the nature and extent of information necessary to satisfy the requirements of a statutory notice. (See: Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503 at [33 - 38].) 14 It is to be remembered that in significant respects the provisions of the Act inform and are to be followed by persons unlikely to instruct legal practitioners to advise them. (See: R v Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654 per Barwick CJ at 659.) 15 The purpose of the Act in s 253ZJ is to allow members who are not satisfied with the outcome of an amalgamation to apply for a ballot of members to determine whether a constituent part of the amalgamated body may withdraw from the amalgamation. The rights may only be exercised within a limited period after amalgamation and to that extent the right is subjected by the Act to a clear and strict control. It is not evident, and indeed it would seem to be antithetical to the subject matter and the history of the Act, that the purpose of the legislation is to treat as invalid any application that does not comply strictly with the terms of a form prescribed for the use of workers who, as members of an amalgamated organisation, desire to have access to a mechanism provided by the Act for determining whether part of the membership may withdraw from that organisation. 16 The respondent submits that the application failed to comply with the prescribed form and was invalid in the following respects: "(1) A failure by the applicants to sign the application personally; (2) A failure to identify whether the application is in respect of a constituent part or a separately identifiable constituent part; (3) If the application relates to a separately identifiable constituent part, a failure to identify the name of the organisation deregistered in connection with the formation of the amalgamated organisation of which the state branch was a part; (4) A failure to provide the eligibility rules of the amalgamated organisation immediately before amalgamation day or of the relevant state or territory branch. (5) A failure to provide particulars of the changes to the Rules of the proposed constituent part after withdrawal day; (6) A failure to provide particulars of the assets and liabilities of the amalgamated organisation; (7) A failure to provide particulars of the assets and liabilities of the relevant constituent part before the amalgamation/deregistration; (8) A failure to disclose the proposed eligibility rule of the proposed new organisation after withdrawal day."

Signature 17 As shown above, the Form prescribes that it be signed above the description "Signature of applicant/s". Neither the Act nor the Regulations stipulates that an application is to be signed in person by each applicant. Whether the terms of the Form as prescribed pursuant to the Act and the Regulations could purport to do so is unnecessary to decide. On its face, the Form does not have that effect and the Act did not contemplate that it would. Section 253ZJ(3) states that the application may be made by a committee of management or by a prescribed number of constituent members. Conduct of the affairs of a committee of management will involve authorisation of executive officers to carry out the resolutions of the committee. The Act must have contemplated that an application may be made on behalf of the committee by an officer of the committee duly authorised so to act. With respect to an application by "constituent members", reg 98I prescribes the number for the purposes of s 253ZJ(3) and that number may be as many as 2,000. Notwithstanding that s 253ZJ(3)(b) provides that constituent members may elect a committee of management that does not exclude the right of those members to authorise a person or persons to bring an application in their name. Indeed, it would be absurd to contemplate that the Act intended that any application to this Court may have to be signed personally by up to 2,000 persons. It is obvious that the Act did not intend to exclude the signature to the application, being the signature of a person authorised by the constituent members to bring the application on their behalf. The Act expresses the mode of application in general terms and the Form is to be read accordingly. (See: Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574 at [11]; cf Arnott v Community and Public Sector Union (unreported, Federal Court of Australia, North J, 18 December 1998 - 1675/98).) 18 In the present case the application is signed by one of the committee of management "on behalf of the Applicants" and, therefore, on its face it was the signature of those members. (See: Trustees v Weir at [6].) The affidavit filed in support of the application to which the prescribed form was an exhibit, stated that Mr Bennett, the person who signed the application, was the "Branch Secretary" of the branch of which the applicants are the committee of management and that the committee had decided to make the application. 19 For the purposes of the Act it was not necessary that an application made by an authorised person attach the terms of the authority at the time the application was made. In any event, there was sufficient material to indicate that the application was one made by a person authorised to make it.

"Constituent part" or "separately identifiable constituent part" 20 The Union submitted that when read as a whole the completed form of application created uncertainty as to whether the application was brought on behalf of a "constituent part" consisting of constituent members, or a "separately identifiable constituent part" as defined in s 253ZI(1). 21 If the Form as completed is confusing, such confusion is to be attributed to the unsatisfactory prescription effected by the Regulations which fail to make it clear that only the prescribed particulars appropriate to the application should be included in the completed form. The Form itself sows the seeds of confusion in that the introductory paragraph to the Form refers only to a "committee of management of the constituent members", the reference appropriate for an application made pursuant to s 253ZJ(3)(b) but inappropriate for an application made pursuant to s 253ZJ(3)(c). 22 It is obvious from the introductory paragraph to the Form, and Item 3A thereof, as completed by the applicants, that the application was made by a "separately identifiable constituent part" as defined in s 253ZI(1). The application was made by the committee of management of a branch of the Union in which an organisation deregistered in connection with the amalgamation remained identifiable. The application made that clear in Item 3A of the Form. It may be noted that Item 3A was not part of the Form as originally prescribed - it was included to correct a significant oversight. The introductory paragraph of the Form was not corrected however, and nor was the Form amended to explain that not all paragraphs had to be completed.

23 Accordingly, it can be understood how the applicants thought they were obliged to make their best efforts to insert details under Items 2, 3, 4 and 5(a), notwithstanding that those particulars were irrelevant to the application made by the applicants and should have been omitted. (See: Northam v Commonwealth Bank of Australia [1999] FCA 544, Weinberg J at [24].) 24 The material so inserted remained irrelevant to the application, the foundation for which was patent on any reasonable reading of the application.

Identification of pre-amalgamation organisation 25 As set out in the foregoing reasons, the identity of the organisation deregistered in connection with the formation of the amalgamated organisation was clearly stated as required in Item 3A(c) of the Form. Item 5(b) required particulars of the rules of the deregistered organisation to be provided. The applicants misunderstood the requirement of the Form and did not address identification of those rules. The Union did not allege that a defect occurred in this regard, but in any event I am satisfied that failure to give particulars that identified the rules was not a defect or an irregularity of substance, or an error invalidating the application. The Act would have had in contemplation that the rules referred to in Item 5(b) remained a matter of record as the rules of an organisation that had been registered under the Act. It would be well known where such rules may be inspected.

Eligibility rules 26 Item 4 of the Form is relevant where the applicants are a "constituent part" other than a "separately identifiable constituent part" who must establish qualification to make the application by showing eligibility of the constituent members to be members of the deregistered organisation. 27 The item was irrelevant to the application made by the applicants.

Proposed changes to rules of "constituent part" 28 In so far as Item 9 of the Form requires particulars of the changes proposed to the rules of the deregistered organisation to be supplied, that requirement must be read as an obligation to provide no more than an outline of proposed changes recognising that such proposals may be altered or reviewed as the application proceeds. The application form met the requirement of this particular.

Assets and liabilities of the Union 29 It would not be contemplated by the Act that members seeking to withdraw from an amalgamated organisation, and by definition not part of the controlling body thereof, be aware of the current status of assets and liabilities of the amalgamated organisation they seek to leave. 30 It should be concluded that it is the intention of the Act that applicants be directed to supply such information as is known to them. The form completed by the applicants met that requirement.
Assets and liabilities of the deregistered organisation before deregistration 31 The applicants completed this item of the Form by stating that particulars would be provided. It may be observed that the assets and liabilities of the deregistered organisation would have been a matter of record when the amalgamation of that organisation was proposed and approved under the Act. It would not be contemplated by the Act that the applicants could do other than recite that the relevant material was in the records of the Australian Industrial Relations Commission. In effect that is what the applicants have done and in doing so they have substantially complied with the requirement of the Form.

Eligibility rule of "proposed new organisation" after withdrawal day 32 It is not clear to what item of the Form this complaint refers. There is no requirement that the applicants give specific particulars of the eligibility rule of the "proposed new organisation". As stated above, I am satisfied the applicants complied with any requirement raised by Item 9 of the Form that particulars of proposed changes to the Form or rules of the deregistered organisation be provided. 33 In addition to the foregoing matters, the Union further submitted that the application was not accompanied by a written outline as required by s 253ZJ(a)(i) and reg 98JA and was invalid as a result. First, it may be noted that a number of the matters to which reg 98JA refers are irrelevant to the application of the applicants, an application made by a "separately identifiable constituent part". Second, the application was accompanied by an outline of the proposal for the constituent part to withdraw from the Union. If the outline is deficient, that is a matter the Court may address by an order made pursuant to s 253ZJ(a)(iv). The terms of that subsection make it obvious that it is not the purpose of the Act to have the application treated as invalid if there is any deficiency in the accompanying outline. 34 It follows from the foregoing that the application filed by the applicants is a competent proceeding. 35 The application, however, must be amended in the terms sought by the applicants to provide for the more efficient disposal of the matter. An order will be made accordingly. The Union's motion will be dismissed and the matter re-listed for further directions. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate: Dated: Counsel for the Applicants: R I Viner AO, QC

Solicitor for the Respondent: Ryan Carlisle Thomas

Workplace Relations Act 1996(Cth)s 253ZJ

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