Re William Alfred Spencer v the Australian Workers' Union Re Raymond Lawrence v the Australian Workers' Union [1983] FCA 24; (1982) 65 FLR 103; 3 IR 448 (18 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: WILLIAM ALFRED SPENCER
And: THE AUSTRALIAN WORKERS' UNION
Re: RAYMOND LAWRENCE
And: THE AUSTRALIAN WORKERS' UNION [1983] FCA 24; (1982) 65 FLR 103
Nos. WA3 and WA2 of 1982
Conciliation and Arbitration Act 1904 - High Court and Federal Judiciary
3 IR 448

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Toohey J.(1)

CATCHWORDS

Conciliation and Arbitration Act 1904 - ss.140 and 141 - use of wide combs in the shearing industry - whether union's rules contrary to provisions of Pastoral Industry Award 1965 when read together with the Pastoral Industry (Roping-In No. 4) Award 1980 and Pastoral Industry (Roping-In No.5) Award 1982 - power of court to grant permanent and interlocutory injunctions

Conciliation and Arbitration Act 1904, ss.140 and 141

Federal Court of Australia Act 1976, ss.19 and 23

Conciliation and Arbitration - Registered organization - Rules prohibiting use of wide comb by shearers - Use by member for Arbitration Commission inspection - Member fined - Award prohibiting member and employer from using wide comb - Roping-in awards omitting such prohibition - Whether rule contrary to provision of award - Rule invalid - Prospective effect of invalidity - Estoppel between parties - Respondent's action invalid - Injunction to restrain enforcement of fine - No power to award permanent injunction - Conciliation and Arbitration Act 1904 (Cth) ss. 140(1), (5D), (5G), 141(1), (1G), (8A), (10) - Federal Court of Australia Act 1976 (Cth) s. 23.

High Court and Federal Judiciary - Power of Federal Court to grant permanent injunction in application for performance and observance of rules of registered organization under Conciliation and Arbitration Act 1904 - Federal Court of Australia Act 1976 (Cth), s. 23. Rule 123 of the respondent organization's rules read in part: "No member shall use a broad gauge comb and cutter. Members violating this rule shall be fined forty dollars."

The applicant, a member of the respondent organization, was a shearer. His employer was bound by the Pastoral Industry Award 1965 which, by cl. 32, prohibited a shearer from using and an employer from permitting him to use a broad gauge or wide comb. In other sections of the pastoral industry, employers and the respondent were bound by the Pastoral Industry (Roping-In No. 4) Award 1980 and the Pastoral Industry (Roping-In No. 5) Award 1982 which applied all of the provisions of the Pastoral Industry Award 1965 other than cl. 32. During inspections by the Conciliation and Arbitration Commission in connexion with applications to vary cl. 32, the applicant was told by his employer to use the broad gauge comb so that the Commission could see it in operation. The applicant was charged with a breach of r. 123 and fined forty dollars. By rule nisi the applicant sought to have r. 123 declared invalid.

Held: (1) Rule 123 was too broad and was wholly invalid under s. 140(5D) of the Conciliation and Arbitration Act 1904. Where the application of the Pastoral Industry Award was dependent upon the roping-in award, there was no award provision prohibiting the use of the wide comb. Thus, r. 123 was contrary to the provision of an award.

Linehan v. Transport Workers' Union of Australia (1981) I.A.S., Current Review 570, referred to.
(2) As for the applicant's application pursuant to s. 141 of the Act for an order that the respondent perform and observe its rule by treating as null and void and of no effect any resolution declaring that he contravened r. 123 and any fine imposed thereby : (a) Where an application is made under s. 140 and an order obtained, for the purposes of that application and of that section the rule is deemed to be void from the date of the order. R. v. Commonwealth Industrial Court: Ex parte Amalgamated Engineering Union, Australian Section [1960] HCA 46; (1960) 103 CLR 368, applied. (b) Although the court's order under s. 140(5G) had prospective operation only, in appropriate proceedings the court could declare, as between a member of an organization and that organization, that a rule is void because it offends s. 140(1). Atkinson v. Lamont (1938) QSR 33, referred to. (c) The court, having declared r. 123 to contravene s. 140(1), there was, between the parties, a decision that the rule was void and an estoppel resulted between them which rendered the respondent's action against the applicant nugatory and permitted him to resist any attempt by the respondent to recover the fine from him.
(3) As for the applicant's application for an interim and permanent injunction restraining the respondent from proceeding to hear and determine the charge against him and from enforcing or proceeding to enforce any decision arising therefrom: (a) It was inappropriate to grant relief in respect of the hearing and determination of the charge as that had already occurred. (b) The court had power pursuant to s. 140(10) of the Act to grant the interim injunction sought in respect of the enforcement of the fine. (c) The court lacked power to grant a permanent injunction in respect of the enforcement of the fine. Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [1981] HCA 48; (1981) 55 ALJR 614; Piroglu v. Minister for Immigration and Ethnic Affairs [1981] FCA 78; (1981) 55 FLR 99; Brisbane Gas Company Ltd. v. Hartogen Energy Ltd. [1982] FCA 132; (1982) 60 FLR 343; Rifki v. Minister for Immigration and Ethnic Affairs (1983) 46 ALR 301, applied.

HEARING

1983, February 7, 18. 18:2:1983
RULE NISI

The applicant, a member of the respondent, sought orders under s. 140 and s. 141 of the Conciliation and Arbitration Act 1904 invalidating a rule of the respondent and action taken against him pursuant thereto.

P. Nicholls, for the applicant.

J. Brooksby, for the respondent.

Cur. adv. vult.

Solicitor for the applicant: Patrick J. Gethin.

Solicitors for the respondent: Paterson & Dowding.
T.J. GINNANE
Orders accordingly.

DECISION

This is the return of a rule nisi in connection with an application brought under ss.140 and 141 of the Conciliation and Arbitration Act 1904.

The matter was heard concurrently with a similar application in Lawrence v. The Australian Workers' Union, WA No. 2 of 1982 in which I have just delivered judgment and published my reasons. There are some differences in the contents of each rule nisi but at the request of the parties they were heard together and they were argued on the basis that each raised the same questions of fact and law. Counsel for the applicants adopted each other's submissions.

My reasons for judgment in Lawrence v. Australian Workers' Union are attached to these reasons and should be regarded as part of them. Save that the applicant has been a member of the respondent for 20 years and that in describing the events of 25 February 1982 the applicant was told by his employer that he was to use a wide comb for the purpose of a demonstration for the Commissioner and that "there would be no troubles over the demonstration that day", the facts in each application are identical.

In the light of the reasons for judgment in Lawrence v. Australian Workers' Union I declare that rule 123 of the respondent's rules contravenes s.140(1) of the Act. That is the only formal order I make. However by reason of s.140(5G), rule 123 is deemed to be void from the date of this order. The declaration also has the effect as between the parties of treating the rule as void at all relevant times.

This return of a rule nisi arises from the use of wide combs in the shearing industry.

Mr. Lawrence, the applicant, is a shearer and has been a member of the Australian Workers' Union, the respondent, for some 40 years. That union is an organization registered under the provisions of the Conciliation and Arbitration Act 1904 ("the Act").

Rule 123 of the union's rules reads :

"123. No member shall use a broad gauge comb and cutter. Members violating this Rule shall be fined Forty Dollars ($40).
The meaning of broad gauge comb shall be any comb exceeding 2 1/2 inches from the outside of the top tooth to the outside of the bottom tooth".

The applicant seeks to have that rule declared invalid pursuant to s.140 of the Act. To understand why the application is brought, some reference to facts and to relevant awards is necessary.

Clause 32 of The Pastoral Industry Award 1965 prohibits a shearer from using and an employer from permitting him to use any comb wider than 2 1/2 inches between the points of the outside teeth. The Pastoral Industry (Roping-In No. 4) Award 1980 applies the provisions of the Pastoral Industry Award to the respondent and its members, and to the Farmers' Union of W.A. Industrial Association and the Tasmanian Farmers Federation Employers' Association and their members in respect of employment by members of either association of members of the respondent, save only that cl.32 of that award is expressed not to apply to the parties. Similarly, the Pastoral Industry (Roping-In No. 5) Award 1982 applies to the respondent and its members and to Metropolitan Saleyard Services of Western Australia the Pastoral Industry Award, save for cl.32.

From what was said by counsel, it appears that the applicant's employers at the relevant time were not members of the Farmers' Union of W.A. Industrial Association. Hence they were not parties to the Pastoral Industry (Roping-In No.4) Award. Nevertheless they were bound by the terms of the Pastoral Industry Award itself, they being successors to a named respondent to that award. The situation then was that the applicant's employment was governed by the Pastoral Industry Award including cl.32 of that award.

In February 1982 there were before the Australian Conciliation and Arbitration Commission two applications, one by the union and the other by an employer group, aimed at varying the operation of cl.32. As part of the hearing of those applications, Mr. Commissioner McKenzie inspected shearing operations at several locations throughout Australia. One of those inspections was at "Snaigow", a farm at Narrakine, where the applicant was shearing. The Commissioner's decision delivered 10 December 1982 contained this comment :

"During the course of the inspections the Commission observed shearing being carried out with standard 2-1/2" combs, pulled standard combs and manufactured wide combs".

According to Mr. Lawrence, he was not in the practice of using the wide comb but some time before 25 February he was told by Mr. Wilkinson, one of his employers, of the proposed visit by Mr. Commissioner McKenzie to Snaigow. Mr. Wilkinson told him and other shearers that the purpose of the inspection was to see the wide comb in operation and that he and other shearers were, on that day, to use the wide comb.

There was evidence that Mr. Commissioner McKenzie had earlier stated that cl.32 of the Pastoral Industry Award would be "suspended" during each inspection. The evidence of the applicant was that he was told by his employer that there would be "no repercussions" if he used the wide comb on the occasion of the Commissioner's inspection. Whether on 25 February 1982 the Commissioner did in fact suspend the operation of cl.32 (and indeed whether he had power to do so) did not emerge with any clarity from the hearing. But it is clear that the Commissioner did inspect shearing operations at Snaigow on 25 February, that he took evidence from shearers working there and that there was a general understanding on the part of all concerned - union, employees, employers and Commission - that the shearers were using wide combs on that day because of the Commission's visit and as part of the evidence presented to the Commissioner in the applications then before him.

Mr. Barr, the Branch Secretary of the West Australian Branch of the union, was present at the time of the inspection. He did not give oral evidence, but in an affidavit sworn by him and filed in the proceedings he spoke of a visit to Snaigow on 25 February 1982 in the company of Mr. Commissioner McKenzie and various employer and union representatives. He deposed to entering the shearing shed that morning and seeing the applicant and two other members of the union using wide combs. Paragraph 5 of Mr. Barr's affidavit reads :

"5. No order for the suspension of Clause 32 of the Pastoral Industry Award 1965 was made in my presence".

Mr. Barr caused the applicant to be charged under the union's rules with a breach of rule 123. The applicant was notified of the charge and of the intention of the branch executive to deal with the matter on 21 September 1982. Although requested by the union in a letter dated 30 July 1982 to appear before the branch executive "to show cause, if desirous of doing so, why you should not be fined", the applicant did not attend. Through his solicitor, he did seek an adjournment of the hearing but the matter was dealt with by the branch executive on 21 September. The applicant was found "guilty as charged" and fined $40. He has not paid that fine.

The action taken by the union is not directly under attack in these proceedings, except by reference to rule 123. What the applicant seeks to do is to have that rule declared invalid and, if successful, argue that any action taken against him by the union for an alleged breach of that rule can have no legal consequences. However I would make two comments about the union's actions following the events of 25 February 1982. The first is that, however laudable the union's desire to enforce its rules in general and the operation of rule 123 in particular, to seize upon the use of the wide comb on an isolated occasion as part of an inspection by a commissioner of the Conciliation and Arbitration Commission was a particularly unhappy choice.

Secondly, rule 98 of the union's rules requires the branch executive to hear and determine any charge laid by any two members or by an officer of the union "if such charge is made in writing and supported by a Statutory Declaration setting out the facts . . . ". The document provided to the applicant when he was told of the charge against him was a declaration by Mr. Barr that reads :

"That on the 25th February, 1982, Mr. Raymond Lawrence, shearer, is alleged to have been using Broad Gauge Combs at the property known as "Snaigow". . . ".

In my view a statutory declaration alleging conduct on the part of a member is not a statutory declaration setting out out the facts. It is in form and content a complaint or charge. Presumably the requirement of a statutory declaration is so that the member is provided with some evidence of what is alleged against him. An allegation is not evidence.

I turn now to the substance of the application. Rule 123 is said to be invalid on several grounds. In particular it is alleged that, the rule being absolute in its terms, it runs counter to the provisions of the two roping-in awards. It is also claimed that the rule is calculated to hinder members of the union from giving evidence before the Commission and that it is calculated to influence them improperly in giving such evidence. It tends to discourage shearers from carrying out their work in the way they consider best when so permitted by award and it discourages them from joining or retaining membership of the union when it is the policy of the Act to encourage that membership.

Section 140(5E) of the Act confers upon the Federal Court jurisdiction to hear and determine an application under sub-s.(2). That sub-section empowers a member of an organization to apply to the Court for an order under the section in respect of the organization. Both the jurisdiction of the Court and its powers are expressed in somewhat indirect terms. Section 140(1) imposes certain criteria, both negative and positive, in respect of the rules of an organization. Section 140(1)(a), for instance, provides that rules "shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law".

Sub-section (5D) provides that an order under the section may declare that the whole or part of a rule of an organization contravenes sub-s.(1) or that the rules contravene that sub-section in a specified respect.

Counsel for the respondent submitted that the validity of rule 123 should not be judged against "a very fanciful eventuality", in this case the ad hoc suspension of the award by the Commission. I express no view on that as a general proposition. In some cases, for instance where it is alleged that a rule is contrary to a provision of the Act (s.140(1)(a)), it may be necessary to do no more than compare the language of the rule with that of the Act. In other cases, for instance where it is alleged that a rule imposes upon an applicant for membership or a member of the union conditions that are oppressive, unreasonable or unjust (s.140(1)(c)), it may be necessary to consider in some detail particular circumstances.

In the present case the events of 25 February 1982 do illustrate some of the problems that may arise by reason of the existence of rule 123. But, in the end, the validity of the rule stands to be judged in the light of relevant award provisions.

Rule 123 is in absolute terms. Likewise, cl.32 of the Pastoral Industry Award is expressed in absolute terms. But a conflict arises because, where the application of that award is dependent upon either roping-in award, cl.32 is excluded. In those circumstances, there is no award provision prohibiting the use of the wide comb. It cannot therefore be said that rule 123 is in its terms contrary to a provision of an award. But it is contrary in the sense that it prohibits that which the roping-in awards by implication permit.

Mention should be made of the fact that on 10 December 1982 Mr. Commissioner McKenzie delivered his decision on the two applications before him. The effect of that decision was to vary cl.32 of the Pastoral Industry Award to permit use of the wide comb with the express approval of the employer and to vary the roping-in awards by deleting reference to cl.32. Since the decision is the subject of an appeal, I do not rely upon the variations except to note that if they stand the scope for conflict between rule 123 and award provisions is further widened.

If rule 123 was introduced with the words "Unless authorised by an award . . . " or some such language, there could, I think, be no complaint about it. But as it stands it is too broad.

Anticipating that such a finding might be made, counsel for the respondent invited me to declare, not that rule 123 in whole or in part contravenes sub-s.(1), but that the rules contravene sub-s.(1) in a specified respect. This course was taken by Northrop J. in Linehan v. Transport Workers' Union of Australia (1981) I.A.S. Current Review 570 and it is a course having particular consequences.

For present purposes the structure of s.140 may be described in this way. Once seized of a matter arising under the section, the Court may declare
(a) that the whole or a part of a rule of an organization contravenes sub-s.(1), or
(b) that the rules of an organization contravene sub-s.(1) in a specified respect.
This dichotomy, expressed in sub-s.(5D), has these consequences. Where an order declares that the whole or a part of a rule contravenes sub-s.(1), the rule, in whole or in part, is deemed to be void from the date of the order (sub-s.(5G)). Where an order declares that the rules contravene sub-s.(1) in a specified respect, there is no statutory avoidance of the rules; but sub-s.(7) empowers the Registrar to bring the rules into conformity with the declaration if, at the expiration of three months, the organization has not itself done so.

As Mason J. commented in R. v. Dunphy; ex parte Maynes [1978] HCA 19; (1977-1978) 139 CLR 482 at p.490 :

"In many cases it is a nice question whether it is a particular rule, rather than the rules as a whole, which fails to make a provision required by the Act or the regulations".

In the present case only rule 123 is challenged. And it is a rule standing independent of other rules. A declaration under the second limb of sub-s.(5D) is not appropriate. A declaration that the whole of that rule contravenes sub-s.(1) is appropriate and I make that declaration.

In reaching this conclusion I have not relied upon the other grounds advanced on behalf of the applicant. They may be disposed of in this way. If rule 123 conflicts with the provision of an award, it is unnecessary to look further. If there is no conflict, the prohibition in the rule is consistent with the terms of the award and the limitation imposed by the rule is one that the award, having the imprimatur of the Conciliation and Arbitration Commission, also imposes. In those circumstances it is hard to see that the rule itself could have the implications contended for by the applicant.

The applicant also seeks an order that the respondent perform and observe the rules of the union by treating as null and void and of no effect any resolution declaring that the applicant contravened rule 123 and any fine imposed thereby. He seeks that order pursuant to s.141 of the Act. The respondent argues that no such order should be made. It submitted that by reason of s.140(5G) of the Act any declaration that a rule contravenes sub-s.(1) can operate only to deem that rule void from the date of the order. It can have no retrospective effect. The submission is sound to a point but it does not dispose of the matter.

In R. v. Commonwealth Industrial Court; ex parte The Amalgamated Engineering Union, Australian Section [1960] HCA 46; (1960) 103 CLR 368 at pp.378-379 Fullagar J. expressed the view that sub-s.(5G) (the numbering of the sub-sections was in fact different) does not limit what goes before it. It operates so that where application is made under s.140 and an order obtained, for the purposes of that application and of that section the rule is deemed to be void from the date of the order. If it appears that a rule offends s.140(1), that rule will be void, not by force of an order made pursuant to sub-s.(5G) but because the rule offends sub-s.(1). I adopt, with respect, the approach of Fullagar J.. Sub-section (5G) deems a rule to be void for all purposes. For this reason, and to avoid rendering null actions taken in the past, including actions by those who have not participated in the application before the Court, sub-s.(5G) gives the Court's order prospective operation only. However, that does not preclude the Court or a tribunal, in appropriate proceedings, from declaring as between a member of an organization and that organization that a rule is void because it offends sub-s.(1). Being void, it cannot be relied upon by the organization. See also Atkinson v. Lamont (1938) St. R. Qd. 33.

But I do not think that in these proceedings the Court can direct the respondent to treat as of no effect the resolution of its branch executive holding the applicant in breach of rule 123 and imposing a fine upon him. Section 141(1) of the Act empowers a member of an organization to apply to the Court for an order under the section. Such an order "may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules" (sub-s.(1G)).

On the face of it there was no failure on the part of the respondent to perform or observe its rules. Indeed it purported to act against the applicant for failing to observe rule 123. It is true that sub-s.(8A) empowers the Court, in an application under s.141, to make an order in terms of s.140. But having made such a declaration it is not apt to regard an order that the respondent treat rule 123 "as null and void" as a direction for the performance or observance of any of the rules of the union.

In my view the true position is that the Court having declared rule 123 to contravene s.140(1), there is between the applicant and the respondent a decision that the rule is void, and that between the parties an estoppel results. This renders nugatory the respondent's action against the applicant and permits the applicant to resist any attempt by the respondent to recover the fine from him.

The applicant has sought an interim and permanent injunction restraining the respondent from proceeding to hear and determine the charge against him and from enforcing or proceeding to enforce any decision arising therefrom. Before the rule to show cause was granted on 28 September 1982, the charge had in fact been determined. All other questions aside, it was therefore inappropriate to grant any relief of an interlocutory nature in regard to the determination of the charge. It is also inappropriate to consider a permanent injunction in that regard. But when the matter came before me on a directions hearing, I granted the applicant an interlocutory injunction restraining the respondent from seeking to enforce the decision, that is from seeking to recover the fine from the applicant. I am now asked by the applicant to make that injunction permanent.

I was satisfied of the Court's power to grant the interim injunction sought. It is enough to point to sub-s. (10) of s.140 itself. That sub-section empowers the Court at any time after proceedings have been instituted to make "such interim orders as it thinks fit in relation to a matter to which the matters raised in the proceedings are relevant". The matter of the validity of rule 123, raised in the proceedings, is clearly relevant to the recovery of a fine based upon an alleged infringement of that rule.

The matter of a permanent injunction is one of more difficulty. A power to make interim orders to preserve the status quo and in particular to prevent steps being taken that would render futile any order made by the Court is a power readily conferred by statute. Section 163, relating to election enquiries, is another illustration within the Conciliation and Arbitration Act itself.

Counsel for the applicant appealed to the existence of the Federal Court as a superior court of record, appearing to argue that thereby the Court had all powers conferred upon a Supreme Court of Judicature, including the power to grant a permanent injunction. That submission overlooks the decision of the High Court in Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [1981] HCA 48; (1981) 55 ALJR 614. At p.618, the majority commented:

"The Federal Court of Australia Act sets up the Federal Court and arms it with certain powers, for example, ss. 22 and 23. But generally speaking, and apart from s.32, the Act does not invest the Court with jurisdiction. It leaves it to the Parliament to do so by other statutes (s.19). This the Parliament has done by other statutes, such as the Trade Practices Act. When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act".

As I read the judgment of the Court, it does not detract from the operation of s.23 of the Federal Court of Australia Act 1976 as a source of power to grant interlocutory injunctions. That was the view taken by Northrop J. in Pirogulu v. Minister for Immigration and Ethnic Affairs (1981) 4 ALD 323 at p.324, by Fitzgerald J. in Brisbane Gas Co. Ltd. v. Hartogen (1982) ATPR 40-304 and which I took in Rifki v. Minister for Immigration and Ethnic Affairs (unreported decision delivered 3 February 1983).

The power of the Court under s.140 of the Conciliation and Arbitration Act is to make a declaration. I can find nothing in that Act empowering the Court, in any relevant context, to grant a permanent injunction. In my view it is not possible to pray in aid the provisions of the Federal Court Act itself to fill that hiatus. It follows then that no permanent injunction may be granted.

In summary I declare that rule 123 of the respondent's rules contravenes s.140(1) of the Act. That is the only formal order I make. By reason of s.140(5G) rule 123 is deemed to be void from the date of this order. The declaration also has the effect as between the parties of treating the rule as void at all relevant times.