Re Alexander John Clark v Thomas Burke; Terrance Carroll; Stanley Dickson; Douglas Jones; Arnold Currie and Gerald Bernard Cahill [1990] FCA 47; 32 IR 354 (26 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: ALEXANDER JOHN CLARK
And: THOMAS BURKE; TERRANCE CARROLL; STANLEY DICKSON; DOUGLAS JONES;
ARNOLD CURRIE and GERALD BERNARD CAHILL
No. WA 5 of 1989
FED No. 56
Industrial Law
32 IR 354

COURT

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

CATCHWORDS

Industrial Law - performance and observance of rules - order to show cause - order seeking invalidation of all resolutions of Union's National Executive and Conference for past five years - ambit claim - inappropriateness of such procedure in Federal Court - true issue narrower - discretion of Court to refuse to deal with application - discretion to make interim orders to secure resolution - show cause order on real issue in dispute.

Industrial Relations Act 1988 s.209

Federal Court Rules O.4 r.15

V. Troja v W. Curran &Ors (unrep Fed Ct 12/5/89 Keely J.)

HEARING

PERTH
26:2:1990

Counsel for the Applicant: A.L. Jackson QC and Mrs Vincent-Emery

Solicitors for the Applicant: Harman Drake-Brockman

ORDER

Thomas Burke, Terrance Carroll, Stanley Dickson, Douglas Jones, Arnold Currie and Gerald Bernard Cahill appear before the Federal Court of Australia at Perth in the State of Western Australia on the 19 day of March 1990 at 2.15 o'clock in the afternoon to show cause why an order should not be made that the respondents perform and observe the Rules of the Operative Plasterers' and Plaster Workers' Federation of Australia:
(1) by treating as null and void any resolution of the

National Executive to make a demand dated 20 day of
July 1989 for a National Building and Construction
Industry Labourers' (on site) Award or under the
authority of which such demand purported to be
made;
(2) by treating as null and void the demand dated 20
day of July 1989 for a National Building and
Construction Industry Labourers' (on site) Award
upon the grounds set forth in the affidavits of
Alexander John Clark dated 25 october 1989 and 14
November 1989, the affidavit of Gerald Bernard Cahill
dated 26 October 1989, the affidavit of Simon Michael
Billing dated 16 February 1990, the affidavit of Allan
Locke Drake-Brockman dated 19 February 1990, and the
affidavit of Kevin Noel Reynolds sworn 19 February 1990.

A copy of this rule and the affidavits referred to together with the reasons

for the decision to issue the rule to be served on each respondent and on some person apparently an officer of or in the service of the Operative Plasterers' and Plaster Workers' Federation of Australia and apparently of or about the age of sixteen (16) years at the office of that organisation shown in its copy records lodged in the Industrial Registry pursuant to s.268 of the Industrial Relations Act 1988 or the corresponding provision of the Conciliation and Arbitration Act, on or before the 26th day of February 1990.

There be liberty to any party to apply.

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

DECISION

According to Alexander Clark, who is President of the Western Australian Branch of the Operative Plasterers' and Plaster Workers' Federation of Australia ("the OPPW (WA)"), there is a major communication problem of some five years standing between his branch and the union's National Executive. In particular he says, that since September 1984, the National Executive has not sent to the Western Australian Branch or its secretary any notice of its meetings or those of the National Conference as required by the rules. He now applies to this Court under s.209 of the Industrial Relations Act 1988 and O.4 r.15 of the Federal Court Rules for a rule calling upon the members of the National Executive to show cause why they should not perform and observe the rules of the union and treat as null and void all resolutions of the National Conferences and National Executive passed since 28 October 1984. The order sought would also require the respondents to show cause why their resolution to make a demand for a National Building and Construction Industry Labourers' (on site) Award and a demand subsequently made should not also be treated as null and void.

2. In an affidavit filed on 14 November 1989, Clark said that prior to 8 January 1989 correspondence between the OPPW (WA) and the National Executive was related to requests for payment of affiliation fees and notification of elected officers. On 9 January 1989 the Branch received a letter from the National Secretary requesting a list of names and addresses of its committee of management and a list of all financial members. The stated reason for that request was to enable the OPPW to assess its entitlement for affiliation fees payable by the Branch to its federal office, which was said to be $2 per financial member. These fees had not been paid for over 6 years. The Branch resolved on 15 February 1989 that its Acting Secretary be instructed "to ensure that the Western Australian Branch is given its right of representation on the Federal Management Committee and the Federal Conference". On 23 February the Acting Branch Secretary sent a letter to the National Secretary in which reference was made to "constant attack from the BWIU, now called the CMEU". This was evidently a reference to demarcation disputes with the Building Workers' Industrial Union of Australia. The legal expenses associated with "constant demarcation fights" it was said "have made it impossible for the Branch to meet its obligations as to sustenance fees". The letter then went on:

"I might point out that although the Branch has
filed its returns and kept its records properly in
accordance with the Rules and the Conciliation and
Arbitration Act, and is recognised by the
Commission as the Western Australian Branch duly
formed under the Rules of the Federation, the
Branch has not been notified for many years of
Federal Management Committee Meetings or Federal
Conferences. Such notice as is required under the
Rules. The power under the Rules to strike a
federal sustenance fee is vested in the Federal
Conference which we were not notified of."

The letter indicated that it was proposed to pay the relevant fee of $2 per financial member but that this would only relate to those of the Branch's members who were members of the organisation registered under federal law, the Branch by itself also evidently being a State registered body for the purpose of certain State awards. The letter concluded with an accusatory reference to the ad hoc basis upon which payment of sustenance or affiliation fees had been sought from branches in the past and the hope was expressed that other branches would be approached in the same manner as the OPPW (WA). A reply was invited from the National Secretary. In the event, according to Clark, there was no reply and on 29 November 1989 the Acting Secretary sent to the OPPW a cheque for affiliation fees of $2,660. In that letter it was said:

"We have received no reply to our correspondence
regarding your failure to notify us of National
Executive Meetings and National Conferences, nor
have we received any response from you in relation
to payment of the WA Branch's Sustenance Fees. As
was indicated in our letter of the 23rd February,
the State Management Committee agreed to resolve
the outstanding question of the payment of
Sustenance Fees. The WA Branch of the Federation
currently has 1330 members for which we are
prepared to pay a Sustenance Fee of $2 per
financial member. We enclose a cheque in the
amount of $2,660.00.
We hope that your office will now notify us of all
National Executive Meetings and National Conferences."

3. By a further letter, misdated 25 January 1989 but issued on 25 January 1990, the Acting Branch Secretary reminded the National Secretary that under the Rules of the Federation he was obliged to notify the Branch of all National Executive Meetings and National Conferences. He said:

"You have consistently failed to give us notice of
these meetings and I again ask that you notify us
of all National Executive Meetings and National
Conferences."

Reference was then made to a recent dispute in the Australian Industrial Relations Commission in which the Branch had sought to be represented by their elected branch organiser and their industrial officer, but in which a BWIU organiser had argued that they had no authority from the Federal office to represent the Branch. The letter concluded:

"Please advise us of what the Federal Management
Committee's position is in relation to
representation of the Western Australian Branch in
the Commission.
Your urgent response would be appreciated. If we
receive no response from you within seven days of
the date hereof we will commence proceedings in the
Federal Court."

4. On 2 February 1990 the federal secretary, Mr Burke, sent to the Acting Secretary of the Branch the following rather cryptic reply:

"We acknowledge receipt of your correcpondence (sic)
of 25th November, which was received in this office
on 31st November and advise that the matters raised
by you are being attended to and we will advise shortly.
In respect to the Western Australian Branch
representation at the Federal Commission, we have
sought advice from our legal people and will advise
as soon as they respond."

Apart from a letter correcting a typographical error in the letter of 2 February 1990 whereby the reference to "November" in the text of that letter should have been a reference to "January", no reply was received to the letters of 29 November and 25 January. However on 8 February 1990 a circular notification of a proposed rule change was received from the Federal office.

5. On the broader question of communication between the Branch and Federal office generally there was also evidence from Gerald Cahill, who had been elected as Branch secretary in August 1983 and re-elected to that office in August 1987. He was said by virtue of his office to be a member of the National Executive. However since 28 September 1984 he had, according to his affidavit, never been informed of any meeting of the National Executive or National Conference.

6. It has not been made clear in the material before the Court at this stage precisely why it is that after nearly five years of apparent lack of concern about communications with the National Executive, the Branch should now seek to invalidate all that has been done in the intervening period. If that element of the application is a form of ambit claim then it serves no legitimate purpose in these proceedings. While the ambit claim technique may have its place in the Industrial Relations Commission as a device for creating a "dispute", it should not be reflected in proceedings in this Court. The processes of the Court should not be invoked except for genuine claims reflecting the true position of the parties bringing them.

7. It appears from the affidavit evidence, that the present application originated with the issue in July 1989 of a log of claims served on certain employers in Western Australia by the Federal OPPW and the BWIU. The State Branch was apparently not consulted or otherwise involved in its issue. On 8 September 1989 Raoul Salpeter, National Industrial Officer for the Building Workers Industrial Union of Australia, filed with the Australian Industrial Relations Commission a Notification of an Alleged Industrial Dispute under Section 99 of the Industrial Relations Act 1988. The Notification attached a list of employers to whom a log of claims and letter of demand had been sent on 22 August. According to the affidavit of Allan Drake-Brockman, Clark's solicitor, the logs of claims relied upon in the Notification included that which had been served on Western Australian employers by the OPPW and the BWIU jointly in July 1989. On 6 October, Drake-Brockman filed with the Australian Industrial Relations Commission on behalf of the OPPW (WA) a Notice of Intention to Seek Intervention in the proceedings instituted by the BWIU. The Notice is no model of clarity but its invisible sub-text seemed to be that the BWIU was seeking by its notification to cover the conditions of workers who were eligible for membership of the OPPW and not the BWIU. With respect to that class of worker it was said that the BWIU was unable to create an industrial dispute.

8. The proceedings in this Court were instituted on 30 October 1989. On 14 November 1989 the BWIU Notification came on for hearing in the Industrial Relations Commission in Sydney. That claim however was dismissed by Commissioner Grimshaw, apparently on the ground that Salpeter lacked the requisite authority to sign the Notification. In the course of his ex tempore decision he observed that Salpeter was authorised to represent the OPPW. In dismissing the Notification, Commissioner Grimshaw concluded that:

"...this decision should not prohibit the union
from pursuing similar objectives in the future
using somewhat different methods."

9. The proceedings for a show cause rule instituted in this Court came on first on 13 November. They were adjourned and relisted for 15 November 1989 and then again adjourned to 21 February 1990. By that time further affidavits had been filed. Drake-Brockman, in his affidavit filed on 20 February, referred to the outcome of the Notification already mentioned and concluded by saying:

"I verily believe that the BWIU intend to pursue the
alleged industrial dispute. At the hearings of the
matter it became clear that the Operative
Plasterers' and Plaster Workers' Federation of
Australia...had supported a notifiction of the
alleged industrial dispute and the service of the
log of claims and letter of demand. In his
decision Mr Grimshaw refers to the advocate for the
BWIU, Raoul Salpeter, as being authorised to
represent the Union."

Although the show cause order seeks the invalidation of all resolutions of the National Executive and National Conference for the past five years, the real issue of concern in the application would appear to be the proceedings whereby the OPPW decided to make a demand on 20 July 1989 for a National Building and Construction Industry Labourers' (on site) Award.

10. The discretion of the Court to entertain an application for an order under s.209 is to be exercised in the light of sub-s.209(3) which provides:

"The Court may refuse to deal with an application
for an order under this section unless it is
satisfied that the applicant has taken all
reasonable steps to try to have the matter the
subject of the application resolved within the
organisation."

In my opinion the application for a rule under O.4 r.15 may be treated as the initiating application for the purposes of s.209(3) and the discretion conferred by that section may be exercised to refuse the grant of a show cause rule. That is not to say that it may not be exercised later in the proceedings or even at the conclusion of the substantive hearing - see F. Troja v W. Curran & Ors (unrep Fed Ct 12/5/89 Keely J.). It is however most usefully invoked in the early stages of an application. The sub-section is clearly intended to avoid unnecessary time and expense on litigating disputes which could and should have been the subject of resolution by the internal processes of the union concerned. Sub-section 209(3) should also be read with sub-s.209(4), which provides:

"At any time after the making of an application for
an order under this section, the Court may make
such interim orders as it considers appropriate,
and in particular, orders intended to further the
resolution within the organisation concerned of the
matter the subject of the application."

The operation of sub-s.(4) is less dramatic than that of sub-s.(3) in that an application may remain on foot while attempts are made to resolve it without litigation. The Court should not hesitate, in my opinion, to resort to this sub-section when there is a reasonable prospect of a resolution that may save time and legal costs.

11. In the present case I am not prepared to entertain the application so far as it seeks an order invalidating all resolutions of the Executive and Conferences for the past five years. I am not satisfied, in relation to the whole of that period that the applicant has taken any steps to resolve the question of notification or that until recently there has been complaint about it. The real issue in this case appears to relate to the log of claims and subsequent Notification issued in July and August 1989 and the fear of some liaison between the BWIU and the OPPW at a Federal level adverse to the interests of the OPPW (WA). I propose therefore to issue a rule limited to resolutions relating to the log of claims and the demands made under it. In doing so I will not exclude the possibility of orders later being made under sub-s.209(4) with a view to resolving the dispute in its entirety without further litigation. I will direct that a copy of these reasons be served with the show cause rule.