|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
High Court of Australia |
EGAN v. SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' FEDERATION OF AUSTRALIA,
N.S.W.
[1979] HCA 31; (1979) 143 CLR 325
Industrial Law (N.S.W.)
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4) and Murphy(5) JJ.
CATCHWORDS
Industrial Law (N.S.W.) - Trade Unions - Amalgamation - Statutory requirements - Whether mandatory or directory - Validity of amalgamation - Registrar's certificate of amalgamation - Whether certificate of registry - Whether conclusive evidence of existence of registered trade union - Trade Union Act, 1881 (N.S.W.) ss. 6, 14, 15, 22, 22A, 23 - Regulations under Trade Union Act, 1881, reg. 1 - Industrial Arbitration Act, 1940 (N.S.W.), s. 8(6).
HEARING
Sydney, 1979, February 20, 21; July 19. 19:7:1979DECISION
July 19.2. The respondents, amongst other defences, denied the existence of the co-plaintiff, and asserted in consequence that the action could not be maintained by either plaintiff. The Supreme Court at first instance (Taylor C.J. at C.L.) accepted the respondents' submission and held that the action was "not competent". The plaintiffs appealed to the Court of Appeal Division of the Supreme Court. That appeal was dismissed (1978) 1 NSWLR 387 . An appeal is now brought by the appellant seeking to reverse the Court of Appeal's decision and to set aside the judgment of the primary judge so that the action may proceed as presently constituted. (at p330)
3. The appellant claims that his co-plaintiff is a trade union within the operation of the Trade Union Act, resulting from the amalgamation of two registered trade unions as defined in that Act, and that it is a registered trade union under that Act with the name in which the action was commenced. He also places the existence of his co-plaintiff upon an alternative basis to which I shall later refer. (at p330)
4. The two registered trade unions said to have amalgamated are the Australian Workers' Union and the Shop Assistants and Warehouse Employees' Federation of Australia, New South Wales Branch. Each was also registered as an industrial union under the provisions of the Industrial Arbitration Act, 1940 (N.S.W.) (at p330)
5. At all material times, there was an organization registered under the Conciliation and Arbitration Act 1904 (Cth), as the Australian Workers' Union. Its rules provided for branches of the organization to exist in States or portions of States. (at p331)
6. The trade union registered as the Australian Workers' Union under the
Trade Union Act, prior to any of the events out of which
the contest between
the parties has arisen, lodged with the Registrar of Trade Unions as its rules
practically the whole of the rules
of the organization. That those rules,
identified in these proceedings as the 1962 rules, or so many of them as were
applicable,
were the relevant rules of the trade union is not now in contest.
The lodged rules include the following rules which are relevant
to the
resolution of the questions arising in this appeal:
"34. The Convention shall be the highest deliberative body in the Union,
and shall have power:
(a) To direct the policy of the Union in matters affecting the interests
of the members in all industrial, political, and municipal
concerns.
(b) To make, amend, or rescind Rules.Delegates.
(c) To fix allowances for Delegates to Convention and Council
(f) To appoint and remove General Trustees of the Union.rescission of existing Rules, or alteration of the Constitution, shall be forwarded to the General Secretary not later than the 1st December in each year. . . ."
(g) To impose levies upon members and Branches."
"37. Proposals for the making of new Rules, or the amendment or
"53. Delegate Meetings or Branch Executives shall have power -within the Constitution.
(a) To decide any question solely affecting such Branch which may arise
. . . "The Trade Union Act contains the following presently relevant sections:
(3.) Any agreement for the application of the funds of a trade union -such trade union in consideration of such employer or workman acting in conformity with the rules or resolutions of such trade union or
(a.) To provide benefits to members or
(b.) To furnish contributions to any employer or workman not a member of
(4.) Any agreement made between one trade union and another oragreements
(5.) Any bond to secure the performance of any of the abovementioned
. . .certificate of registry which certificate unless proved to have been withdrawn or cancelled shall be conclusive evidence that the regulations of this Act with respect to registry have been complied with.
(5) The Registrar upon registering such trade union shall issue a
. . ."Act the following provisions shall have effect -
"16. With respect to the rules of a trade union registered under this
(3) The manner of making altering amending and rescinding rules.trade union with or without any dissolution or division of the funds of such trade unions or either or any of them but no amalgamation shall prejudice any right of a creditor of either or any union party thereto."
. . ."
"22. Any two or more trade unions may become amalgamated together as one
7. Regulations made under the Trade Union Act pursuant to s. 14 (6) thereof
prescribe the method of application for registration
as a trade union and the
form of a certificate of registry of a trade union. (at p334)
8. Regulation 1 provides:
"1. (1) Every application to register a trade union shall be in Form 1,
appended to these Regulations.
(2) Where the Industrial Registrar, being of the opinion that a trade
union applying to be registered holds itself out to be
or purports to be a
trade union of employees, so directs, the following rules shall apply:-
(a) The trade union shall cause notice of the application for
registration to be published in one metropolitan daily newspaper
within
fourteen days from the date of such direction. Such notice shall be in or to
the effect of Form 8.
. . ."whose names are subscribed at the foot hereof, and the following statement specifies the rules of the Trade Union, which provide for the requirements of the law:-
"Form 1 - Regulation 1
Application to register a Trade Union
To the Registrar of Trade Unions.
1. Application to register a Trade Union is made by the seven persons
3. The Trade Union was established on the day ofoffice to which all communications and notices may be addressed, is at , as set forth in Rule No. .
4. The place of meeting for the business of the Trade Union, and the
12. The manner of dissolution is set forth in Rule No. .members who sign this application.
13. Accompanying this application are sent:-
(1) Two printed copies of the proposed rules, signed by the same seven
(2) A list of the titles and names of the officers.'Trade Union Act 1881'.
. . ."
"Form 5 - Regulations 1 and 2
Certificate of Registry of Trade Union
I hereby certify that I have this day registered the . . . under the
. . . . day of . . .19. . .
(Signed)
Registrar of Friendly Societies and Trade Unions" (at p336)
9. No forms are prescribed for the notice to be given under s. 23. The Court
was informed, however, that there is a practice in
notifying an amalgamation
of using a form prescribed under the trade union legislation of the United
Kingdom for use upon an amalgamation.
The notice required by s. 23 was given
in this case by use of the English form. (at p336)
10. It is common ground between the parties before this Court that, if applicable, the procedures of r. 34 were not complied with by the registered trade union, the Australian Workers' Union, before the alleged amalgamation. What occurred, so far as that trade union was concerned, was that the branch executive of the organization, which apparently was also or acted as the executive of the registered trade union, resolved upon an amalgamation with the other registered trade union. The State executive of the latter trade union - for its part - resolved upon that amalgamation. (at p336)
11. After these resolutions had been passed, and before any notice under s. 23 had been given to the office of the Registrar, new rules were purported to be made by the "amalgamated union" as the rules of the new trade union resulting from the amalgamation and officers of the new union were appointed under such rules. Thereafter, on 1st April 1974, there were lodged with the office of the Registrar of Trade Unions the following documents: (1) A 'Notice of Amalgamation of a Trade Union' which stated the substance of the resolutions to become amalgamated, the terms of the amalgamation, and that it was intended that "the trade union shall henceforth be called 'The Australian Workers' Union'". The document was signed by eight persons claiming to be members of the new union, i.e. by the secretary of the union, and seven others as members of it. (2) A statutory declaration by the secretary of the registered trade union that the provisions of the Trade Union Act in respect of amalgamation had been complied with. (3) A like notice and declaration by the Shop Assistants and Warehouse Employees Federation of Australia, New South Wales. (at p336)
12. On receipt of these documents, an entry was made in the Trade Union Register of the fact of the amalgamation which had thus been notified. Section 23 was thus and at this time satisfied. (at p336)
13. Subsequently, on 23rd April 1974, the Registrar of Trade Unions, whose
functions are performed because of s. 26 of the Trade
Union Act by the
Industrial Registrar appointed under the Industrial Arbitration Act, issued a
certificate in the following terms:
"CERTIFICATEWales, appointed pursuant to the provisions of the Industrial Arbitration Act, 1940, hereby certify that the amalgamation of THE AUSTRALIAN WORKERS' UNION and THE SHOP ASSISTANT AND WAREHOUSE EMPLOYEES' FEDERATION OF AUSTRALIA, NEW SOUTH WALES, was registered under the Trade Union Act, 1881, on the 1st April, 1974, under the style of THE AUSTRALIAN WORKERS' UNION.
I, KEVIN ROY FETHERSTON, Industrial Registrar for the State of New South
DATED at Sydney this twenty-third day of April, 1974.No other entry was made in the Register of Trade Unions, nor was any other certificate issued under the Trade Union Act by the Registrar. (at p337)
K. R. Fetherston
Industrial Registrar."
14. It is observable that the documents lodged with the Registrar did not include a request for registration of a trade union in the prescribed form or in any form: nor did the lodged documents expressly contain such a request, nor were any of the requirements of Form 1 - Regulation 1 as to an application for registration of a trade union complied with. (at p337)
15. It manifestly appears from the recital of these facts that no application for registration of a union formed by the amalgamation of the two trade unions, Australian Workers' Union and Shop Assistants and Warehouse Employees' Federation of Australia, New South Wales, or, for that matter, of a trade union otherwise formed, has been made, unless it can properly be said that the request for registration of the amalgamation was itself, or that it contained, such an application. Further, no entry of the registration of such a union was made in the Register of Trade Unions, though, as I have said, the notified fact of amalgamation was entered in that Register. Further, no certificate of registry was issued in the form set out in the said schedule to the Trade Union Regulations. Indeed, no certificate of registry in any form was issued, unless the document issued by the Registrar on 23rd April was, or contained, such a certificate. (at p337)
16. The notice of amalgamation was signed by eight people as I have indicated, no doubt on the assumption, clearly erroneous, that the amalgamation had become effective before such notice had been given and registered and that there were both members and officers of the amalgamated union. (at p337)
17. It was assumed throughout the argument of this appeal that an unregistered trade union could be a plaintiff in an action such as the present, doubtless because of the decision in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901] UKHL 1; (1901) AC 426 , and the practice to which it has given rise. But it seems also to have been conceded that if there were no trade union in or deemed to be in existence, no such action as the present could be brought in the name of the co-plaintiff. (at p338)
18. The appellant submits that the executive of the registered trade union which resolved upon the amalgamation was the body empowered by its rules to alter the rules of the registered trade union so that the resolution of the executive in favour of the amalgamation satisfied the requirements of s. 22A of the Trade Union Act. It is therefore said that the amalgamation was effective and that, as a result, the two former registered unions were dissolved so that their name should have been removed from the Trade Union Register: and that a single new trade union known as the Australian Workers' Union came into existence with rules which it was said to have adopted subsequent to the resolutions but before any notice under s. 23 had been given and registered. (at p338)
19. As an alternative submission, the appellant claimed that the signatures upon the notice of amalgamation given pursuant to s. 23 evidenced the existence of a new trade union, not the result of an amalgamation but of the consensus of the signatories to the formation of a union: see s. 6 of the Trade Union Act. It was said in consequence that the notice of the amalgamation (which on the alternative hypothesis had not taken place) was itself an application for registration of a trade union. This is the alternative basis to which I earlier referred. (at p338)
20. The appellant, on the assumption that the purported amalgamation was ineffective, submits that the certificate as to the registration of the amalgamation was itself a certificate of the registration of the new trade union. The words in the certicate "under the style of the Australian Workers' Union" are pointed to in this connexion as indicative of this character of the certificate. I apprehend that if there be no amalgamation because of lack of conformity to the requirements of ss. 22 and 22A, the appellant also claims that the document of 23rd April is a certificate of registry of the trade union formed by the signatories to the notice of amalgamation. (at p338)
21. I am clearly of opinion that there is no substance whatever in the proposition that there was a new trade union formed by the signatories to the notice of amalgamation or that it was registered. Indeed, it could not properly be registered having regard to the fact that, upon the hypothesis on which the proposition is founded, the registered trade union, the Australian Workers' Union, remained in existence and on the register: see s. 14 (3). The document of 23rd April cannot be read as a certificate issued under s. 14 and subject to the provisions of s. 15: and there are other critical difficulties in the proposition. Nothing more need be said of this submission. (at p339)
22. To make good the proposition that the branch executive as the executive of the registered trade union was the "authority empowered by its rules to alter such rules", the appellant supports the decision of the primary judge that r. 34 of the "federal" rules is inapplicable as a rule of the registered trade union and submits that r. 53 of those rules as a rule of the trade union gave to the executive of the trade union a power to alter the rules of the trade union as that expression is found in s. 22A of the Trade Union Act. (at p339)
23. This submission, in my opinion, will not bear analysis: I am unable to accept either part of it. The registered trade union adopted the federal rules which contained r. 34 as one of its own rules. Clearly enough, there may be some federal rules which, though so adopted, would be inapplicable to regulate the affairs of the trade union. But I do not accept that r. 34 is such a rule. (at p339)
24. Section 14 (1) and (2) of the Trade Union Act, along with the contents of the First Schedule to that Act, require that the rules of the registered trade union shall provide for "the manner of making, altering, amending and rescinding rules". The adoption of the federal rules by the trade union, and in particular r. 34, was presumably in purported compliance with these requirements. (at p339)
25. Rule 53 is, in my opinion, plainly not a rule providing a manner of altering the rules of the trade union. It is itself part of those rules, capable of alteration but not by the branch executive. Further, the power given by the rule is to alter by-laws for the guidance of the branch "subject always to . . . the General Rules of the union" and, indeed, of resolutions by a plebiscite (r. 39). Quite evidently, a distinction is drawn between the rules themselves and by-laws made under them for some restricted purpose. (at p339)
26. Apart from all else, r. 53 is in terms limited to making by-laws and does not purport to give a power to alter the rules of the union. Rule 53, both as a rule of the organization and as a rule of the trade union, is no more than a convenient way in which the local affairs of a branch or of the trade union may be dealt with, though, as it stipulates, always subject to the constitution and general rules and decisions of the organization or presumably of the trade union as the case may be. (at p340)
27. If, as I think, r. 53 is not a rule providing a manner of altering the rules, the only rule which could be regarded as so providing is r. 34. It is, of course apparent that this rule as a rule of the organization operates in this sense with respect to its affairs. But it is also a rule of the trade union. There is no reason why the trade union should not by rule resolve to commit to the organization the power in the manner described in r. 34 to alter the rules of the trade union. Reference was made in this connexion to the position said to obtain with respect to companies formed under companies legislation. But I find no analogy in their position nor any assistance from the decisions to which we were referred. Indeed, when the relationship of the trade union to the organization is considered, it would perhaps be strange if the trade union, identified understandably with the branch of the organization, should be able to alter its rules inconsistently with the general rules of the association. (at p340)
28. It was assumed in argument that a registered trade union could not be a branch of a federally organized organization. For my own part, I do not readily perceive why this should be so. We were referred to what was decided by Roper J. in Australian Workers' Union, N.S.W. Branch v. Australian Workers' Union, Unreported; 11th September 1944. , as to a situation which arose in 1942, and also to the decision of Moore v. Doyle (1969) 15 FLR 59 , a decision of the Commonwealth Industrial Court in 1969. However, I have no need to form a definitive view on this occasion upon the conclusions expressed in those cases or to attempt to resolve any inconsistency between them in order to dispose of this appeal. It suffices for present purposes that the registered trade union, if legally and necessarily separate from and not a constituent part of the organization, is substantially identified in industrial activity and consequence with the State branch of the organization. As I have said, it is quite natural that r. 34 should be the rule of the trade union providing the manner of altering the rules of the trade union. If r. 34 were not applicable, the rules of the trade union would not contain an express provision complying with the trade union legislation. For want of such a provision, the rules could be altered only by the body of its members. (at p340)
29. I am therefore of opinion that the purported amalgamation was not authorized by a vote or resolution of the authority empowered under the rules to alter the rules of the trade union: in other words, the statutory conditions under which amalgamation might take place have not been satisfied. (at p341)
30. I have already pointed out that until a notice under s. 23 has been lodged and registered, an amalgamation, otherwise authorized, is not effective. When an amalgamation has been duly resolved upon, it is necessary that a notice under s. 23 be given and registered before members can be enrolled and new rules adopted. Officers may not be appointed until such rules are operative. Further, in my opinion, the amalgamated union, if it seeks registration, must do so in conformity with s. 14 and the regulations. As I shall later indicate, the notice given under s. 23 does not operate to obviate the taking of the appropriate steps under s. 14. The proper course upon an amalgamation otherwise conformable to the Trade Union Act is, after a notice under s. 23 has been given and registered, for the adoption of rules and appointment of officers and then, if registration is to be sought, to apply in the prescribed form, providing the requisite information to the Registrar for the registration of the "new" union with consequential deregistration of the registered trade unions which have been amalgamated. (at p341)
31. Counsel for the appellant submitted that in trade union affairs one should not be insistent upon strict observance of statutory provisions whether in the form of an Act or a regulation. He brought in aid of this submission my own remarks in Reg. v. Aird; Ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654, at p 659 . But I can see no relevance in the quotation. We are here dealing with the language of a legislature and with the exercise of statutory power in relation to the affairs of a trade union. It seems to me pre-eminently necessary in the interests of the members of the union that there should be strict compliance with statutory requirements as to the conduct of the affairs of a trade union. After all, it is the members whose rights and interests need protection: the convenience or ease of operation of union officials can have no place in considering whether or not such statutory prescriptions and proscriptions have been observed or broken. (at p341)
32. Much was sought to be made of the consequence of a decision that what has been thought to have come into existence and in whose name many things may have been done over a period of time, did not at any time exist. I readily recognize the possibilities of the situation: but that is no warrant for not giving effect to the statute and the regulations made under it. On the other hand it points up the considerable responsibility resting upon trade union officials to be aware of and to comply with the relevant statutory requirements. (at p342)
33. The appellant then submits that s. 22A is but directory so that an infraction of its prohibition did not result in an invalidity of the amalgamation. But it is, in my opinion, quite impossible to regard s. 22A as a directory provision: indeed, the emphatic terms in which prohibition is expressed leave, in my opinion, no room for such a conclusion. The policy of the legislation is quite evident. A trade union may amalgamate, but only if that course is resolved upon by the described authority: and s. 23 complied with. The first of these requirements not having taken place, in my opinion, the purported amalgamation was a nullity. No new trade union came into existence: nor were the registered trade unions dissolved. (at p342)
34. The appellant then submits that the document of 23rd April was a certificate of registry of the amalgamated union and, not having been withdrawn or cancelled under s. 15, was conclusive evidence of the validity of the amalgamation and of the existence of the new union emerging therefrom. The appellant has an alternative argument, somewhat akin to the view expressed by Hutley J.A., that the giving of the notice of amalgamation under s. 23 of the Trade Union Act, and its registration in the office of the Registrar, provided conclusive evidence of the validity of the amalgamation and of the registration of the new union. (at p342)
35. I shall deal first with the former submission, which was indeed, as I understood his counsel, the appellant's preferred argument. (at p342)
36. The Trade Union Act defines "trade union" in wide terms (s. 31). It affords all trade unions - not merely those registered under the Act - the immunities specified in ss. 2, 3 and 4. It distinguishes between registered trade unions and other trade unions: see, e.g., ss. 8, 9 and 10, in contrast to ss. 2, 3 and 4, ss. 19, 21, 22, 22A, 23 and particularly 24 "every trade union". It provides for the registration of trade unions (s. 6) but does not make registration compulsory. No doubt the legislation contemplates that trade unions will register: but, whether registered or not, certain aspects of trade unions have been thought to call for oversight and regulation. (at p342)
37. It is important to bear in mind that registration does not create the trade union. The Act contemplates that the trade union has an existence before registration, at least as an unincorporated association, and that it has officers and rules. It is the "body" which thus exists and functions which is to be registered. A submission that the Act only dealt with registered trade unions is, in my opinion, unacceptable: the Act itself in structure, policy and expression, in my opinion, denies that proposition. (at p342)
38. It is worth noting that the Act makes no provision for deregistration of the amalgamating unions upon any amalgamation. The receipt of the notice of amalgamation prescribed by s. 23 may authorize the alteration of the register with respect to registered trade unions which have amalgamated. But, as ss. 22 and 22A are not, as I think, limited to the amalgamation of registered trade unions, changes in the register are not prescribed as a necessary consequence of the giving and registering of the notice under s. 23. (at p343)
39. Section 14 and the First Schedule to the Act constitute the regulations of the Act with respect to the registration of a trade union. It is of compliance with that provision that the Registrar certifies when issuing a certificate of registry under s. 14 (5). It is of that compliance that his certificate constitutes conclusive evidence. But the certificate says nothing as to the existence of the trade union, either as before the registration or thereafter. If there were no trade union prior to registration, its registration would not create one, nor a certificate of registry conclusively prove its anterior or current existence. The Trade Union Act has no counterpart of s. 2 of the Trade Union Act, 1913 (U.K.). (at p343)
40. Thus, even if there were a certificate of registry given under s. 14 (5) of a new union emerging from an amalgamation, neither the registration nor a certificate of the registry would, in my opinion, establish that the amalgamation was valid or that a new union validly grew out of an amalgamation. (at p343)
41. However, there was no certificate of registry of the "new union". The document of 23rd April was precisely what it purported to be, a statement that a notice under s. 23 had been received and registered. Further, the purpose of obtaining such a certificate was to facilitate the registration of a trade union under the Industrial Arbitration Act. (at p343)
42. I now turn to the appellant's alternative submission that the registration of the notice of amalgamation was effective to bring into existence a new union and to register that union for the purposes of the Trade Union Act. The appellant broadly relied in support of this submission upon that part of the reasons for judgment of Hutley J.A. in the Supreme Court which deals with this aspect of the appeal. (at p343)
43. Section 23 is applicable, as indeed Hutley J.A. thought, to unregistered trade unions as well as to registered trade unions. If two unregistered trade unions intend to amalgamate, their purpose is ineffective until their "amalgamation" is notified conformably to s. 23 and the notification is registered. The unregistered trade unions may not wish to have the amalgamated trade union registered. If so, I cannot think that the registration of the notice of amalgamation makes the amalgamated union a registered trade union. Put another way, the obligation to give notice of an amalgamation does not commit the amalgamated union to registration as a trade union. A request for such registration is clearly necessary: and there must be compliance with the various requirements of s. 14. In that connexion, the Registrar has duties which he must perform. If the notice of amalgamation served to effect registration, the safeguards of s. 14 would be bypassed. (at p344)
44. I do not agree with the suggestion that there is any difficulty, certainly no impossibility, in an amalgamated union complying with the provisions of s. 14. The steps to be taken I have already indicated: due amalgamation; notification and registration of its amalgamation; adoption of rules and election of officers; application for registration of the amalgamated union. (at p344)
45. Much reliance was placed by appellant's counsel on the decision of Tomlin J. in Booth v. Amalgamated Marine Workers' Union (1926) Ch 904 . But, in my opinion, nothing in this decision supports the appellant's proposition. (at p344)
46. In Booth's Case, the amalgamated union lodged a request for registration as a trade union in addition to giving notice of the amalgamation under the English counterpart of s. 23. A certificate of registration under the counterpart of s. 14 (5) was issued. This clearly appears from the statement of facts (1926) Ch, at p 905 , and from the reasons for judgment (1926) Ch, at pp 916-917 . Further, the existence of the registered trade union was not contested: in the light of s. 2 of the English Act as it then stood, it could not be because that section deemed a registered trade union to be a trade union. Thus, no question such as has arisen in this case arose in Booth's Case. (at p344)
47. Next, the argument now raised on s. 23 was expressly rejected by Tomlin J. He emphasized that s. 23 says no more than that the amalgamation will not be effective until notice of it is given and registered. He thought the concluding words of s. 23 "do not say . . . that after registration of the notice the amalgamation shall take effect". I entirely agree. Tomlin J., in expressing his conclusion, further said: "There is nothing whereby an invalid amalgamation is validated by registration of the notice of it or which renders the registration of such notice conclusive of the validity of the amalgamation" (1926) Ch, at p 920 . With that statement I agree. He added that the counterpart of s. 14 (5) as to the effect of a certificate of registry of a trade union "has admittedly no bearing upon the question of the effect of the registration of the notice of amalgamation" (41). Again, I entirely agree. So far from supporting the appellant's alternative argument, the decision in Booth's Case expressly rejects it. Tomlin J. made an order on the footing that the notified amalgamation was void and that the funds of one of the trade unions said to have amalgamated still in the possession of the registered trade union were the property of the first-mentioned trade union. (at p345)
48. Nothing more can, in my opinion, be derived from the decision in that case: certainly nothing to support the proposition that s. 23 affords a means of registration of a trade union. (at p345)
49. In my opinion, the purported amalgamation did not take place because it was not resolved upon by the appropriate rule-making body. No new union emerged as the result of an amalgamation. The document of 23rd April was not a certificate of registry of the new trade union. A certificate of registry is not conclusive evidence of the existence of a trade union. The registration of a notice of amalgamation does not operate as a registration of the amalgamated union. Section 23 does not furnish an alternative method of registration of a trade union to that specified in s. 14. (at p345)
50. I agree with the conclusions of the majority of the Court of Appeal. (at p345)
51. The appeal should be dismissed. (at p345)
GIBBS J. The question for decision on this appeal is whether an association described as "The Australian Workers' Union" was competent to sue as plaintiff in the Supreme Court of New South Wales in an action claiming damages and injunctions in respect of alleged conspiracy, intimidation and wrongful inducement to breach of contract. (at p345)
2. There were several associations to which the name "The Australian Workers' Union" was applied at times material to this case. There was an organization by that name registered under the Conciliation and Arbitration Act 1904 (Cth), as amended; I shall refer to it as "the federal union". That organization had in New South Wales a branch known as "The Australian Workers' Union, N.S.W. Branch" ("the state branch"). Closely related to the state branch was a trade union, registered as such under the Trade Union Act 1881 (N.S.W.), as amended ("the Trade Union Act"), called "The Australian Workers' Union" ("the state union"). It is unnecessary to explore the exact nature of the relationship between the state branch and the state union, but it is important that, as all parties agreed in argument before us, the rules of the state union in force at all material times were to be found in a set of rules described as "Constitution and General Rules of the Australian Workers' Union", sometimes called "the 1961-1962 rules", which had been prepared to govern the activities of the federal union, including the activities of the state branch, and which were in May 1962 registered under the Trade Union Act as the rules of the state union. The association whose competence to sue is now in issue - which I shall call "the new union" - resulted from the attempted amalgamation of the state union and another trade union registered under the Trade Union Act under the name of the Shop Assistants and Warehouse Employees' Federation of Australia, New South Wales ("S.A.W.E."). (at p346)
3. The relevant facts may be shortly stated. On 16th January 1974 it was
resolved at a meeting of the executive of the state union
that the executive
supported an amalgamation with S.A.W.E. and that the secretary be instructed
and empowered to bring about the
amalgamation. It is common ground that an
appropriate resolution was passed by the proper authority of the S.A.W.E.
Notices in writing
of the attempted amalgamation were then given to the
Industrial Registrar (who by s. 26 of the Trade Union Act is the Registrar
under
that Act) by the state union and by S.A.W.E. Each notice was signed by
the secretary and seven members of the union on whose behalf
it was given, and
was accompanied by copies of the rules intended to be the rules of the new
union, and by a statutory declaration
by the secretary that the provisions of
the Trade Union Act with respect to amalgamations had been complied with. On
each notice
the Industrial Registrar made an indorsement in the following
terms: "Registered under the Trade Union Act, 1881, as amended, this
1st day
of April, 1974." The following entry was made in the Register of Trade Unions
which is kept for the purposes of the Trade
Union Act:
"Date of Registration 1.4.74. Name The
Australian Workers'
Union File No.
923 Nature of Document
Notice of AmalgamationOn 23rd April 1974 there was issued, under the hand of the Industrial Registrar, a certificate in the following terms:
between "The Australian
Workers' Union' and 'The
Shop Assistants and
Warehouse
Employees'
Federation
of Australia, New
South Wales'."
4. In these circumstances it is contended on behaf of the appellant that there was a valid and effective amalgamation which resulted in the formation of a new trade union which was registered under the Trade Union Act, and that in consequence the new union became a legal entity, distinct from its members, with power to sue and be sued in its own name. Alternatively it was submitted that even if the conditions of the Trade Union Act as to amalgamation were not satisfied the certificate issued by the Registrar was nevertheless conclusive of the existence of the new union. In the further alternative it was said that the requirements of the Trade Union Act with regard to amalgamation were not mandatory and that once the amalgamation was registered it became effective notwithstanding any defects in the steps taken to bring it about. (at p347)
5. The questions raised depend on the effect of the provisions of the Trade Union Act. Although some further provision as to trade unions is made by the Industrial Arbitration Act, the law as to the status and capacity of trade unions, and their ability to amalgamate, is still mainly to be found in the Trade Union Act, which reproduces, with a few amendments, the provisions of the Trade Union Acts, 1871 and 1876 (U.K.). It is somewhat surprising that statutory rules formulated a hundred years ago, when trade unions had a much less secure and influential position in society than they do today, should be thought to be still suitable to meet modern needs, particularly since not all of the doubts and difficulties engendered by those provisions have yet been resolved. (at p347)
6. The relevant provisions of the Trade Union Act are those that appear in a
group of sections headed "Registry of Trade Unions".
By s. 14 it is provided,
inter alia, as follows:
"With respect to the registry under this Act of a trade union and of the
rules thereof the following provisions shall have
effect -
(1) An application to register the trade union and printed copies of the
rules together with a list of the titles and names
of the officers shall be
sent to the Registrar under this Act.
(2) The Registrar upon being satisfied that the trade union has complied
with the regulations respecting registry in force
under this Act shall,
subject to this section, register such trade union and such rules.
. . .certificate of registry which certificate unless proved to have been withdrawn or cancelled shall be conclusive evidence that the regulations of this Act with respect to registry have been complied with.
(5) The Registrar upon registering such trade union shall issue a
. . ."By s. 15 it is provided that no certificate of registration of a trade union shall be withdrawn or cancelled otherwise than by the Registrar and in the cases mentioned in the section. Section 16 requires, amongst other things, that the rules of every registered trade union shall contain provisions in respect of the several matters mentioned in the first schedule, and that schedule requires that one of the matters to be provided for by the rules shall be, "(3.) The manner of making altering amending and rescinding rules.". The provisions with regard to amalgamation are those of ss. 22, 22A and 23. Those sections are not in terms restricted in their application to registered trade unions, but both the unions which endeavoured to amalgamate in the present case were registered, and it is not necessary for me to consider whether those sections upon their proper construction apply only to registered trade unions. Section 22 in its original form provided as follows:
7. The question whether the requirements of s. 22A were complied within the
present case depends on whether the executive of the
state union was the
authority empowered by the rules of that union to alter such rules, within the
meaning of that section. The difficulty
in answering this question arises from
the fact that the rules which were registered as the rules of the state union
- the 1961-1962
rules - were primarily designed for the purposes of the
federal union, an association divided into a number of branches in the various
States. Under the rules, some powers were conferred on a convention (or annual
conference) and an executive council, both of which
included members elected
by the branches, and other powers were conferred upon the delegate (or
general) meetings of the branches
and on the branch executives. By r. 34 the
convention was declared to be the highest deliberative body in the union, with
power,
inter alia, to "make, amend or rescind Rules". By r. 35 (a) the general
management of the affairs of the union was, subject to the
direction of
convention, vested in the executive council, which, by r. 35 (b) (2), was
given power, when convention was not sitting,
to make such rules and other
provisions or to rescind or vary existing rules as might be deemed expedient.
The powers of the branches
of the federal union were dealt with by r. 53,
which provided, inter alia, as follows:
"Delegate Meetings or Branch Executives shall have power -within the Constitution.
(a) To decide any question solely affecting such Branch which may arise
8. It was submitted on behalf of the appellant that the powers given by these
rules to the branch executives were intended to be
exercisable by the
executive of the state union, and that contention is no doubt correct. Then it
was said that the power given by
r. 53 (b), when exercised by that executive,
extended to enable the executive to alter the rules of the state union. In
support of
this argument it was said that the executive was the highest
authority within the state union (since apparently no districts had
been
formed under r. 81), and that if the executive did not have power to alter the
rules there was no authority within that union
which had such power, although
no doubt all the members of the union, acting unanimously, might alter the
rules. However, it is clear
that under the rules as they applied to the
federal union the branch executives had no power to alter the rules. When the
words of
rr. 34 and 35 are contrasted with those of r. 53 it cannot be doubted
that "Rules" in the former sections was intended to mean the
rules as a whole,
i.e., the "Constitution and General Rules of The Australian Workers' Union",
whereas "By-laws" in the latter section was intended to mean subordinate
provisions
made under the authority conferred on the branch executives by the
rules. When the 1961-1962 rules became the rules of the state
union, in my
opinion the meaning of the word "By-laws" did not expand to include the rules
themselves. It was argued that although
all of the rules were expressly made
the rules of the state union, some of them could have no application to its
activities, and
in particular that rr. 34 and 35 could not so apply. Even if
this were correct, the fact would remain that r. 53, which confers the
power
on which the appellant relies, itself draws a distinction between the by-laws
which may be altered under that power and the
general rules of the union which
may not. The concluding words of r. 53 (b) show that it was intended that the
power conferred by
that rule to make and alter by-laws was subject, inter
alia, to the rules themselves. Although I agree that rules of this kind should
not be technically construed, but should if possible be given a broad meaning
in an endeavour to effectuate the intention of those
who adopted them, it is
not possible completely to ignore the words which have been chosen to confer
the power upon which reliance
is placed. Indeed it seems to me that it was in
fact intended that the executive of the state union should have only the same
limited
powers that were exercisable by the branch executive of the state
branch, possibly because it was considered, notwithstanding judical
opinions
as to the legal position, that for practical purposes the state branch and the
state union were substantially identical
and that both should be controlled by
the federal union. In fact it does not appear to have been unusual for trade
unions registered
under the Trade Union Act to have registered rules which
were also the rules of an organization registered under the Conciliation
and
Arbitration Act 1904 (Cth). That practice was criticized as undesirable by
McKeon J. in McQuillan v. Bodkin (1960) 59 AR 373,
at pp 383-384 , but there
is nothing in the Trade Union Act that forbids it. The combined effect of s.
16 and the First Schedule
is that the rules of a registered trade union must
contain provision as to the manner of making, altering, amending and
rescinding
its rules, but there is nothing in the provisions of the Act that
either enjoins or proscribes the adoption of any particular kind
of provision
for those purposes. (at p351)
9. For these reasons I conclude that the executive of the state union was not the authority empowered to alter the rules of the union, and that the condition stated by s. 22A was not fulfilled. (at p351)
10. In my opinion the vote or resolution referred to in s. 22A was intended by the Trade Union Act to be a condition precedent to a valid amalgamation. Although s. 22 in its original form appeared to be facultative, it permitted only amalgamation effected in the particular way described in the section, i.e., by the consent of not less than two-thirds of the members of each trade union, and on its proper construction appeared to exclude any amalgamation without such consent. The provisions of s. 22A are even clearer; they are peremptory in form and forbid any amalgamation except upon the vote or resolution mentioned in the section. The circumstance that the provisions contained in the second part of s. 22A may well be only directory contained in the point; those provisions deal with the procedure and formalities to be adopted in respect of the vote or resolution, and the requirement which they embody is not expressed in the same imperative terms as that contained in the first part of the section. Moreover the purpose of the section is obviously to afford some protection to the members of a union from being forced into an amalgamation which may be detrimental to their interests, and this is an added reason for holding that no attempted amalgamation will be effective if the condition stated in the first part of s. 22A has not been fulfilled. (at p352)
11. For these reasons I conclude that in the present case no amalgamation was validly effected. The question that then arises is whether the registration of the notice of amalgamation nevertheless brought into existence a new registered union. Section 23 makes no express provision as to the effect of the registration of an amalgamation. The statement that until an amalgamation is registered the same shall not take effect does not mean or imply that when an attempted amalgamation is registered the same shall take effect even if it was invalid for want of compliance with s. 22A. Notwithstanding that s. 23 appears in that part of the Trade Union Act which is headed "Registry of Trade Unions", it makes no provision for the registration of a trade union. It deals only with the registration of changes of names and amalgamations. When a new trade union results from an amalgamation, that new union may be registered under the provisions of s. 14. It was argued that it would not be possible to register the new union simultaneously with the registration of the amalgamation that produced it, because until the amalgamation became effective on registration the new union could not appoint its officers, and thus could not comply with s. 14 (1). I do not agree. Section 23 presupposes that there has been an amalgamation but prevents it from taking effect until registration, and it seems to me that when two unions have amalgamated, the new union, the product of the amalgamation, may proceed to appoint officers, although the appointment will not become effective until registration of the amalgamation. However, even if this view were not correct, the fact that the registration of the amalgamation and the registration of the new union could not occur simultaneously would be no reason for treating registration of the amalgamation as equivalent to registration of the union. Section 14, which expressly deals with the registration of a trade union, imposes requirements and conditions, and gives to the Registrar discretionary powers which provide safeguards against wrongful registration; s. 23 contains no similar provisions, and this strengthens the conclusion that s. 23 should not be understood as meaning that the new union becomes registered when the amalgamation is registered. For these reasons I am of the opinion that the registration of the amalgamation in the present case did not amount to the registration of a new union. (at p353)
12. Hutley J.A., in his dissenting judgment in the Court of Appeal, was of
the opinion that the decision of Tomlin J. in Booth v.
Amalgamated Marine
Workers' Union (1926) Ch 904 is authority for the proposition that
registration of amalgamation documents is a
separate and different way for the
coming into existence of a trade union. The legislation under which that case
was decided included
a number of amendments to the Trade Union Acts, 1871 and
1876 (U.K.) which have not been reproduced in the New South Wales legislation.
Section 12 of the Act of 1876, which corresponded to s.22 of the New South
Wales Act in its original form, had been amended by the
Trade Union
(Amalgamation) Act, 1917 (U.K.) and the words requiring the consent of not
less than two-thirds of the members had been
replaced by provisions requiring
the holding of a ballot. Moreover by s.2 (1) of the Trade Union Act, 1913
(U.K.), a provision which
has no counterpart in New South Wales, it was
provided that "any combination which is for the time being registered as a
trade union
shall be deemed to be a trade union as defined by this Act so long
as it continues to be so registered". In that case, as Tomlin
J. found, there
had been no proper ballot as required by the statute, but the union had
forwarded to the Registrar a notice of amalgamation,
a request for
registration of the amalgamated union and a statutory declaration that the
provisions of the statutes in regard to
an amalgamation had been complied with
(1926) Ch, at pp 905, 916-917 . The Registrar registered not only the
amalgamation but the
new amalgamated union: that appears clearly from pp. 905,
907 and 917 of the report. He issued a certificate, which appears to have
been
a certificate of registration of the new union (1926) Ch, at pp 906, 920 . It
was common ground that as a result of what was
done a new union had come into
existence (1926) Ch, at pp 907, 908 . The question was whether there was a
valid amalgamation. Tomlin
J. held that there was not, and summed up his
reasons as follows (1926) Ch, at pp 919-920 :
"(1) No statutory power to amalgamate is conferred by s. 12 of the Act
of 1876 as amended by the Act of 1917, except subject
to the conditions
precedent as to ballot mentioned in the section, (2) Under s. 13 of the Act of
1876" (s.23 of the Trade Union Act)
"notice in writing of any amalgamation has
to be sent to the Registrar and has to be registered, and until registration
the amalgamation
can have no effect. (3) There is nothing whereby an invalid
amalgamation is validated by registration of the notice of it or which
renders
the registration of such notice conclusive of the validity of the
amalgamation. (4) Sect. 13, sub-s. 5, of the Act of 1871"
(s. 14 (5) of the
Trade Union Act) "as to the effect of a certificate of registration of a trade
union, has admittedly no bearing
upon the question of the effect of the
registration of the notice of amalgamation."
However, Tomlin J. went on to say (1926) Ch, at p 920 :
"Upon the facts of this case, as I have found them, the conditions
precedent of valid statutory amalgamation were not fulfilled,
and in my
opinion the amalgamation was a nullity and was not validated by registration
of the notice of amalgamation. This conclusion
does not, of course,
necessarily affect the existence as a union of the defendant union in respect
of which a certificate of registration
has been issued."
It plainly appears that the grounds for this decision were that an attempted
amalgamation is a nullity unless the conditions precedent
stated in the Act
have been complied with and that the registration of a notice of amalgamation
has no effect in validating an invalid
amalgamation. This conforms to the
views that I have expressed. The concluding remarks of Tomlin J., in the
passage from the judgment
(1926) Ch, at p 920 already cited, accept that
nevertheless, if there has been issued a certificate of registration, which
can only
mean a certificate under the provisions corresponding to s. 14 (5) of
the Trade Union Act, it may not be possible to challenge the
existence of the
union as to which the certificate has been given - a union which came into
being as the result of an unsuccessful
attempt at amalgamation. However, in my
opinion, if a new union came into existence, that was not the result of the
registration
of the amalgamation, but the result of the registration of the
new union and the issue of a certificate of registry - the result,
in other
words, of the English equivalent of s. 14 (5) and of the provisions of s.2 (1)
of the Trade Union Act, 1913 (U.K.) of which
there is no New South Wales
equivalent. (at p354)
13. It does not become necessary to consider whether under the legislation in force in New South Wales a new union comes into existence as the result of an unsuccessful attempt at amalgamation followed by registration of the new union and the issue of a certificate under s. 14 (5), because no new union was ever registered and no certificate was issued under that section. I have already indicated that registration of an amalgamation is not equivalent to registration of a new union. Further, the certificate issued by the Registrar on 23rd April 1974 was not a certificate of registry under s. 14 (5). In the first place, it was not expressed as a certificate that the new union was registered. It was not in accordance with the form of certificate of registry (Form 5 prescribed by reg. 2), contained in the regulations made under s. 14 (6) of the Trade Union Act. Secondly, the certificate was obtained for the purpose of supporting an application made under s. 8 (6) of the Industrial Arbitration Act to record the amalgamation in the register of industrial unions. By reg. 14 of the regulations made under that Act such an application "shall be accompanied by a certificate of the Registrar of the registration of the amalgamation of the trade unions . . . ," and the certificate of 23rd April 1974 in fact accompanied an application which resulted in the issue of another certificate by the Industrial Registrar, also dated 23rd April 1974, that the new union was duly registered as an industrial union of employees in pursuance of the Industrial Arbitration Act. These circumstances make it clear that the certificate was not issued under s. 14 (5), but in any case the Registrar had no power to issue a certificate under that sub-section unless he had registered the trade union in respect of which the certificate was issued; the power under s. 14 (5) may be exercised by the Registrar "upon registering such trade union". (at p355)
14. There is no statutory authority for the issue of a certificate of amalgamation under s. 23. The certificate was given, perfectly properly, by the Registrar as an exercise of administrative power, for the purposes of reg. 14 of the regulations made under the Industrial Arbitration Act. There is no justification for giving to such a certificate the same conclusive effect that is expressly given by s. 14 (5) to a certificate issued under that section. It is therefore unnecessary to consider the question whether if a certificate of registration of the new union had been issued under s. 14 (5) it would still have been open to the courts to inquire whether the invalidity of the amalgamation had prevented that union from coming into existence. (at p355)
15. Section 8 (6) of the Industrial Arbitration Act provides, inter alia, as
follows:
"When any trade union registered as an industrial union has changed its
name, or when two or more trade unions, all of which
are registered as
industrial unions, have amalgamated, the registrar may, upon application in
the prescribed manner by any industrial
union or industrial unions, and upon
the production of the prescribed particulars, record any such change of name
or amalgamation
in the register of industrial unions. Any such record shall be
deemed to be a re-registration of the applicant union or unions in
such
changed name or as so amalgamated as the case may be: Provided that any such
change of name or amalgamation shall not affect
any rights or liabilities of
any such union or unions . . ."
It is unnecessary to consider whether the record of an invalid amalgamation
has the effect that the union, the product of the intended
amalgamation, is
deemed to be re-registered, with the result that the new union becomes an
industrial union under s. 8 (1) of that
Act, or whether s. 8 (6) only applies
if there has been an amalgamation which is valid and effective. The Industrial
Arbitration
Act does not provide for the incorporation of industrial unions,
and does not confer upon them any status, powers or capacity for
the purposes
of the general law. Nor does that Act give any conclusive effect to a
certificate of the Registrar of the registration
of an industrial union. The
steps taken under and for the purposes of the Industrial Arbitration Act do
not provide any foundation
for the argument that the new union became a legal
entity. (at p356)
16. For the reasons I have given, the contentions made on behalf of the appellant do not succeed. Once it is held, as it must be, that the attempted amalgamation was invalid and null, it follows that no new trade union could come into being as the result of the attempted amalgamation, at least without registration of the new trade union under the Trade Union Act, and the issue of a certificate of registry under s. 14 (5). The new trade union was not registered under that Act, and no such certificate was issued. The new union therefore had no existence as a legal entity, and had no capacity to bring the present proceedings. (at p356)
17. It is hardly satisfactory that the statutes should permit an invalid amalgamation to be twice registered, and that the body formed by that invalid amalgamation should be in a position to carry on its activities as though it were registered as a trade union when this was not in fact the case. However, the attempted amalgamation was in the face of an express statutory prohibition and cannot be given effect. (at p356)
18. I would dismiss the appeal. (at p356)
STEPHEN J. The Union which features in this litigation, although named the Australian Workers' Union, is not to be confused either with the closely related federally organized union of that name, registered pursuant to the Conciliation and Arbitration Act 1904 (Cth), or with that federal union's New South Wales branch. Their co-existence is an instance of organized labour's necessary response to the problems created by the existence of separate Commonwealth and State systems of industrial arbitration, problems which are analysed in detail in Moore v. Doyle (1969) 15 FLR 59 . (at p357)
2. The union here in question is the product of the purported amalgamation in 1974 of two State unions, each a union organized and functioning under New South Wales law. The first of these State unions was itself called the Australian Workers' Union and was a long established State union, closely associated of course with the federal union of the same name. I shall refer to it as the "old A.W.U.". The second State union was the Shop Assistants and Warehouse Employees' Federation of Australia, New South Wales, the S.A.W.E.F.A. Each was registered pursuant to the Trade Union Act, 1881 (N.S.W.), as amended, and as an industrial union of employees for the purposes of the Industrial Arbitration Act, 1940 (N.S.W.). (at p357)
3. In 1977, the resultant amalgamated union, which has retained the name Australian Workers' Union, ventured beyond the confines of disputation before the industrial tribunals of New South Wales when it and its secretary Barry Thomas Egan sued some twenty defendants in the Supreme Court of New South Wales, alleging a conspiracy and combination to defraud and injure. The defendants to that action include a federally organized union, the Shop Distributive and Allied Employees' Association, a number of its officers, the Retail Traders' Association of New South Wales and certain of its officers and a number of the members of that Association who are employers of large numbers of retail shop assistants in New South Wales. (at p357)
4. For many years before amalgamation the old A.W.U. had been a party to various proceedings before the industrial tribunals of New South Wales, being a recognized trade union duly registered under relevant State legislation, and the amalgamated trade union continued, after amalgamation, to be so recognized. However in the common law proceedings instituted by the amalgamated union the defendants put in issue the very existence of the amalgamated union, alleging variously that the amalgamation was null and void, that the amalgamated union was not an entity known to the law and could not sue, that it had no valid rules or validly elected executive and was an incompetent party to the action. (at p357)
5. These matters, all going to the competency of the action, were tried separately as a preliminary point before Taylor C.J. at C.L. His Honour concluded inter alia that there had been no amalgamation, that the executive of the amalgamated union was not a duly elected body and that the amalgamated union was not a competent party to the proceedings which it and its secretary had instituted. The plaintiffs appealed to the Court of Appeal, which by a majority of four to one dismissed the appeal (1978) 1 NSWLR 387 . (at p358)
6. Unlike the two unions which were its progenitors, the amalgamated union has never been formally registered as a trade union pursuant to s. 6 of the Trade Union Act 1881, although certain registrations and certificates do exist, the nature and effect of which are in dispute. Had the amalgamated union been duly registered, it is common ground that, despite the absence from the Act of any specific grant of corporate personality, there would have been no question of its competence to sue at common law. (at p358)
7. The attack made upon competence relies, however, upon more than mere non-registration. It is said that the very act of amalgamation was itself abortive and that this necessarily vitiated all that followed. It is this question of amalgamation that provides a commencing point in the consideration of this appeal, its particular relevance being that, although the appellant asserts competence regardless of the validity or otherwise of the amalgamation, the particular path of reasoning which they pursue in arriving at the conclusion of competence varies depending upon whether or not the amalgamation was valid. (at p358)
8. The rules of the old A.W.U. immediately before its amalgamation are critical to the issue of the validity of the amalgamation. In the courts below there was much debate, and, at first instance, much evidence, about what constituted those rules. This has now become common ground, at least to the extent that what are known as the 1961-1962 Rules may be taken to contain the pre-amalgamation rules of the old A.W.U. To what extent the whole body of those 1961-1962 Rules were the rules of the old A.W.U. remains in dispute. (at p358)
9. The relevance of the identification of the pre-amalgamation rules of the old A.W.U. is this: s. 22A of the Trade Union Act 1881 provides, inter alia, that one trade union shall not amalgamate with another except upon "a vote or resolution of the authority empowered by its rules to alter those rules". The respondents contend that the executive of the old A.W.U. which resolved upon amalgamation was not the authority which by its rules was empowered to alter those rules, that there had therefore been no valid amalgamation and that, in the absence of valid amalgamation, there was no other basis upon which the amalgamated union could rely as establishing legal personality sufficient to confer competency as a plaintiff. (at p359)
10. Taking the respondents' contention step by step, its first limb is, I
think, well founded. It must be to r. 53 (b) of the 1961-1962
Rules that the
appellant points as the source of power to alter those rules. That sub-rule
provides that a Branch Executive shall
have power
"To make, or rescind any Bylaws for the guidance of, and generally to
have absolute control of the affairs of such Branch,
subject always to the
Constitution and General Rules of the Union, resolutions of Conventions,
decisions of Executive Council, or plebiscite".
For a variety of reasons this power does not, in my view, conform to the
description of a power to alter the rules of the union.
However, before
summarizing those reasons some explanation is needed of why it is that the
appellant is obliged to seek in so unlikely
a source as a by-law making power
the power to alter the union's rules. (at p359)
11. The 1961-1962 Rules are in a form appropriate enough for a federal union and its State branches but not for a State union like the old A.W.U.: many of its provisions are grotesquely inappropriate, others capable of application to the union's affairs only if an imaginative and liberal approach to their interpretation be adopted. All this arises from the fact that these rules are, with minor alterations, a copy of the rules of the federal union of the same name. The reasons why this is so are of no present concern: the fact remains that, despite the difficulties to which their form gives rise, the old A.W.U. did operate for many years with these rules: to quote from the judgment of the learned trial judge - "the officials of the Union and the Registrar acted upon this basis. From time to time they (these rules) were amended; there were disputes as to their ambit; elections were conducted under them . . . executive of the union, the Registrar and the Courts treated . . . the 1961-1962 rules as being the rules under which this union functioned." (at p359)
12. The learned trial judge accordingly held that "such of these rules as were capable of applying to a State union were the rules of the union from 19th March 1962 onwards". His Honour went on specifically to exclude as rules of the union such of the 1961- 1962 Rules as related "to alteration and amendment of rules, the constitution of Convention and the Executive Council". How what is left after that exclusion then operates is not very clear, the difficulty being but one result of the adoption by a State union of rules appropriate only to a union operating on a federal basis. (at p359)
13. However it is no part of this Court's task to attempt to give coherence to the rules of the old A.W.U. All that it is called upon to do is to ascertain whether that union's amalgamation with the S.A.W.E.F.A. took place upon a vote or resolution "of the authority empowered by its rules to alter its rules". Assuming in favour of the appellant that references to a "Branch Executive" in the 1961-1962 rules are to be treated as descriptive of the Executive of the old A.W.U., which was the body within the old A.W.U. which resolved that it should amalgamate, it is clear to me that the rule relied upon by the appellant, r. 53 (b), did not empower that executive to alter the union's rules. All that that executive is thereby empowered to do is to make "Bylaws . . . for the guidance of . . . such Branch" and to exercise "absolute control of the affairs of such Branch". Not only are those words inappropriate as a grant of power to alter union rules: the context in which they appear is most significant. The concluding words of r. 53 (b) qualify the grant of power by making it subject inter alia, to "the Constitution and General Rules of the Union". When the Constitution and General Rules are found to contain, as they do in rr. 34 and 35, specific provisions for the alteration of union rules it is scarcely possible to regard the qualified power conferred by r. 53 (b) as extending to the alteration of rules. That rr. 34 and 35, purport to vest rule making power in the union's annual federal convention and its federal executive council, bodies which this State union does not possess, no doubt emphasizes the confusion occasioned by the adoption of inappropriate rules but does little to diminish the significance of the qualification imposed by the concluding words of r. 35 (b). Whatever "by-laws" might mean in isolation, it is difficult to equate it to "the rules of the union" when it is found juxtaposed to an express reference to those rules and when the power to make by-laws is expressly made subject to the rules of the union. This difficulty is not overcome by any process of interpretation which seeks in some way not altogether clear to me to treat only such of the registered rules of the old A.W.U. as are consistent with its character as a State union as its "true" rules. In the outcome I find words, in themselves ill suited to describe the process of rule making, being shown by their context to be quite incapable of doing so. (at p360)
14. Further support for this view is afforded by other provisions of the Trade Union Act. By s. 16 a union's rules are to contain provisions "in respect of the several matters in the First Schedule" and to examine those scheduled matters is to be satisfied that the power under r. 53 (b) to make by-laws for the guidance of the Branch is a different and narrower power than that to which s. 22A refers. (at p361)
15. It follows that the requirement of s. 22A of the Trade Union Act, that a trade union shall not amalgamate with another union except by vote or resolution of the authority empowered by its rules to alter those rules, was not observed in the case of the old A.W.U.'s purported amalgamation with the S.A.W.E.F.A. (at p361)
16. In reaching this conclusion I refer again to the fact that the amalgamated union has chosen as the forum of its present litigation the courts of common law and seeks the remedies which they alone afford. I recognize the possibly far-reaching effect of this conclusion, and of what I later in this judgment find to flow from it, upon those concerned in that sector of industrial relationships in which the amalgamated union has hitherto played its part. However, those whom the amalgamated union chooses to sue in the courts are entitled to rely upon whatever objections and defences are open to them in law. (at p361)
17. One curious consequence of the view which I have taken concerning the power to alter the rules of the A.W.U. bears mention: it is that the only express powers of alteration are conferred upon bodies, the federal convention and federal executive council, which are either non-existent or, upon another view, are organs of the federally organized Australian Workers' Union. In the majority judgment in the Court of Appeal it was said of this latter view: "What are the consequences under New South Wales law of a trade union having rules which set up a rule making authority not directly answerable to its members is a question which we find unnecessary to decide as it was not debated before us" (1978) 1 NSWLR, at p 407 . Again on this appeal this aspect received no close attention, being adverted to only as incidental to a submission that all the members of the union would, without express mention in the rules, have power by unanimous assent to alter the rules: right or wrong, this latter submission does not advance the appellant's case and does nothing to convert the mere by-law making power in r. 53 (b) into a rule making power such as s. 22A contemplates. (at p361)
18. If, then, the requirements of s. 22A were not observed by the old A.W.U. in relation to its amalgamation with the S.A.W.E.F.A., the effect must be that there was no valid amalgamation. The section provides that a trade union shall not change its name "nor shall it become amalgamated together as one union with any other union or unions except upon a vote or resolution of the authority empowered by its rules to alter such rules". (at p361)
19. It was submitted that these provisions of s. 22A were directory, not mandatory, and that in any event the injunction they contain was addressed rather to the Registrar than to a union contemplating amalgamation. (at p362)
20. In the majority judgment in the Court of Appeal, their Honours discuss in some detail (1978) 1 NSWLR, at pp 409-411 the submission that failure of the appropriate authority of the union to resolve upon amalgamation will not nullify a purported amalgamation. I entirely share the views expressed by their Honours in rejecting this submission. In the circumstances I need do no more than refer generally to important factors leading to that conclusion: the emphatic prohibitory mode of expression which the section adopts, the history of the section and the contrast which it affords when compared with its pre-1936 predecessor, the fact that it is not concerned with the laying down of some procedural step to be taken by a public official but rather with the confining to a particular authority within a union of the exercise of the powers which, by the preceding sections, the Act confers, the important consequences to a union and its members flowing from amalgamation and, not least, the peruasive force of the reasoning of Tomlin J. in Booth v. Amalgamated Marine Workers' Union (1926) Ch 904, at pp 919-920 . All these matters, to which their Honours refer in detail, appear to me to be of quite compelling force in concluding that a failure to observe the requirements of s. 22A is fatal to any purported amalgamation. (at p362)
21. As to the submission that s. 22A is addressed only, or, for that matter, primarily, to the Registrar in relation to the registration of union amalgamations in his office, I do not think that it is a tenable view of the section. So to restrict its operation is to disregard the plain import of its words and I see nothing in ss. 22A or 23 which would justify such a course. (at p362)
22. Having concluded that there was no valid amalgamation of the old A.W.U. with the S.A.W.E.F.A. it remains to consider the submissions urged on behalf of the appellant which are designed to support competency to sue notwithstanding invalidity of the amalgamation. The appellant presents alternative submissions, one of which mirrors the views which found favour with Hutley J.A. in his dissenting judgment in the Court of Appeal; another is a variant of it. Each relies upon s. 23 of the Act and upon the fact that notice of the amalgamation of the old A.W.U. and the S.A.W.E.F.A. was given to the Registrar pursuant to that section, and duly registered. What I have called the variant also invokes s. 14 and certain other provisions of the Act. (at p362)
23. Hutley J.A., although sharing the view of the majority in the Court of Appeal that the amalgamation was invalid, held that its registration nevertheless resulted in the birth of a new, registered union, and this nothwithstanding the failure to register as a union in accordance with s. 14 of the Act. This view involves, in effect, the proposition that there are two ways in which the status of a registered trade union may be attained: either by registration of the union pursuant to s. 14 or, in the case of an amalgamation, by registration of the amalgamation under s. 23. His Honour regarded himself as assisted in reaching that conclusion by certain passages from the judgment of Tomlin J. in Booth's Case (1926) Ch 904 , a judgment much cited throughout this case, being the only reported case upon these aspects of union amalgamation. He did not regard the absence of rules meeting the requirements of s. 16 of the Act as affecting that conclusion. Membership of the new union would, he held, have consisted, initially, of those members of the two old unions who applied for registration of the amalgamation. (at p363)
24. Attractive as this view is in according legal recognition to an entity which its purported officers and members and those with whom they had dealings no doubt regarded as a registered union, I am unable to accept it as correct in law. I regard as insuperable the difficulties which are involved in any reconciliation of that view with the terms of the Act; nor, in my view, does Booth's Case lend it any support and this for the reasons which appear later in this judgment. (at p363)
25. Section 23 is essentially compulsive and restrictive in form. What it does and, to my mind, all that it does is to impose a requirement as to registration of any change of name or amalgamation coupled with a restriction that until such registration "the same shall not take effect". It contains no reference to the bringing into existence of any new union or to the registration of such a union and is, in this respect, in sharp contrast with the explicit terms of s. 14 on the subject of registration. (at p363)
26. To accord to s. 23 the effect of creating a new registered union leads to curious results. It would allow to be circumvented the carefully imposed controls upon registration which earlier sections provide: a trade union might presumably be registered under it despite the unlawfulness of its objects, contrary to s. 6, and despite failure to comply with "regulations respecting registry", contrary to s. 14 (2); such a union might bear a name deceptively similar to that of an existing trade union (s. 14 (3)) or might not be a bona fide trade union of employees (s. 14 (7) (a)) or might be a union whose members might conveniently have belonged to an industrial union registered under the Industrial Arbitration Act (s. 14 (7) (b)). Such a trade union would presumably have no "certificate of registration of a trade union" capable of withdrawal or cancellation, as is contemplated in the events prescribed in s. 15. (at p364)
27. All this does is but serve to emphasize the wholly different character of the Registrar's functions under s. 14, when registering a union, and under s. 23, when registering an amalgamation. Under s. 14 the Registrar has important discretionary powers: he must be "satisfied" as to certain matters under s. 14 (2), may refuse registration if he is of a certain "opinion" under s. 14 (7): the certificate of registration which he issues is both of conclusive effect under s. 14 (5) and is subject to withdrawal or cancellation by him under s. 15 upon "proof to his satisfaction" of various specified matters, in some instances subject to an appeal to a judicial tribunal (s. 15A). Under s. 23, on the other hand, the Registrar has only a recording function which is not even personal to the Registrar, it is to "the office of the Registrar" that notices are to be sent, which are then to be "registered there". (at p364)
28. It is because the Registrar has only a bare recording function under s. 23 that, by allowing that section to be used to create a new registered union, the door would be opened to evasion of all those controls and restrictions which ss. 14 and 15 impose upon registration. (at p364)
29. There are further substantial reasons which may be urged why s. 23 should not be regarded as concerned with anything more than the recording of name changes and amalgamations. I do not propose to restate them: they are dealt with in detail in the majority judgment in the Court of Appeal (1978) 1 NSWLR, at pp 412-419 in the course of its consideration of the appellant's second alternative submission, what I have described as a variant of that which appealed to Hutley J.A. (at p364)
30. It follows that in my view an examination both of the words of s. 23 and of the way in which the legislation as a whole operates must lead to a rejection of the submission that registration of notice of amalgamation of the two original unions resulted in any bestowal of legal personality upon the new amalgamated union. (at p364)
31. The appellant's second alternative submission, which was in fact urged as preferable to that which conformed to the approach of Hutley J.A., seeks to supplement the operation of s. 23 of the Act by recourse to other sections of the Act. On this view, as I understand it, notice of an amalgamation complying with s. 23 and registered under it would result in the birth of a new, unregistered union followed by cancellation of registration of the two old unions and registration of the new union. Add to this a certificate of amalgamation having, so it is said, all the conclusiveness which s. 14 (5) confers upon a certificate of registration and the result is said to be that the amalgamation then stands proof against any invalidity due to non-compliance with s. 22A. (at p365)
32. This submission is designed to turn to the appellant's advantage whatever
benefit may be had from a certificate which was issued
by the Industrial
Registrar on 23rd April 1974 and is in the following terms:
"I, KEVIN ROY FETHERSTON, Industrial Registrar for the State of New
South Wales, appointed pursuant to the provisions of the
Industrial
Arbitration Act, 1940, hereby certify that the amalgamation of THE AUSTRALIAN
WORKERS' UNION and THE SHOP ASSISTANTS AND
WAREHOUSE EMPLOYEES' FEDERATION OF
AUSTRALIA, NEW SOUTH WALES, was registered under the Trade Union Act, 1881, on
1st April, 1974,
under the style of THE AUSTRALIAN WORKERS' UNION".
The statement in the certificate is, it is said, to be read as certifying not
merely to the amalgamation but also to the registration
of the new amalgamated
union and to bear the attribute of conclusiveness conferred by s. 14 (5). (at
p365)
33. There are a number of respects in which I regard this submission as unacceptable. Perhaps the most critical concerns the attribution of conclusiveness to the certificate. It is a "certificate of registry" which s. 14 (5) renders conclusive and without pausing to consider the content of this conclusiveness, which the words of s. 14 (5) confine to a union's compliance with "the regulations of the Act with respect to registry", I pass to the question whether the certificate of 23rd April 1974 can be such a certificate. If not, that is enough, of itself, to destroy this submission, relying as it does upon the conclusiveness of the certificate to overcome the effect of the invalidity of the amalgamation. (at p365)
34. This certificate of 23rd April 1974 is not in my view such a certificate as s. 14 (5) refers to, which the Registrar is to issue as a "certificate of registry" upon his "registering such trade union". It is, rather, a certificate of the amalgamation of the two unions, a certificate required to accompany an application under the Industrial Arbitration Act s. 8 (6), seeking from the Industrial Registrar the recording of that amalgamation in the Register of Industrial Unions. Regulation 14 of the regulations under that Act prescribes the form of such an application and requires it to be accompanied by such a certificate and the prescribed form, Form 13, refers specifically to such certificate. (at p366)
35. A certificate of that nature has no statutory conclusiveness attached to it and, since it is concerned only with certifying to "the registration of the amalgamation of the trade unions", to quote reg. 14, it is not certifying to the registration of the amalgamated union under the Trade Union Act. Accordingly it cannot gain that conclusiveness which attaches only to a certificate of registration of a union under s. 14 (5) of that Act. (at p366)
36. This is enough to dispose of this submission, which seeks to use this certificate of registration of the amalgamation so as to overcome the failure to register the new amalgamated union. Deprived of the benefit of a conclusive certificate this unregistered union lacks competence to sue as plaintiff in the present action. (at p366)
37. In conclusion, I should say something more about Booth's Case (1926) Ch 904 , which, apart from the particular reliance placed upon it by Hutley J.A., to which I have earlier referred, is also relied upon, with somewhat different emphasis, in support of other submissions made by counsel for the appellant. In what I have to say I will not attempt to distinguish between these two approaches to the case but will, instead, state quite generally my understanding of that decision. (at p366)
38. In Booth's Case the status of the defendant, a recently amalgamated union, as an extant registered trade union was never in issue; indeed plaintiff's counsel is reported (1926) Ch, at pp 907-908 , as expressly foregoing any attack upon that status, as well he might since to do otherwise might have imperilled his case, the union being sole defendant, upon whose existence the plaintiff's entitlement to relief depended. Nor was there, as there is here, any want of a certificate of registration of the amalgamated union; such a certificate had been duly applied for (1926) Ch, at p 916 following the purported amalgamation and had been issued (1926) Ch, at pp 906, 910, 920 . Tomlin J., both in argument (1926) Ch, at p 909 and throughout his judgment (1926) Ch, esp, at pp 917, 920 , clearly distinguished between, on the one hand, registration of the union and the conclusive certificate of that registration, issued under the equivalent of s. 14 (5) of the N.S.W. Act, and, on the other hand, registration by the Registrar of notice of the amalgamation under the equivalent of s. 23. The latter he regarded as in no way conclusive: indeed, despite that registration, his Honour held that the amalgamation was a nullity while at the same time observing in passing (1926) Ch, at p 920 that the existence of the amalgamated union, protected as it was by the certificate of its registration, was not necessarily affected by the invalidity of the amalgamation. (at p367)
39. The view taken by Hutley J.A., which the appellant adopts in the alternative, treats Booth's Case as authority for two propositions: that invalidity of amalgamation did not result in the destruction of the union which was born of that amalgamation and that the registration of amalgamation documents "is a separate and different way for the coming into existence of a trade union", a way which, if resorted to, obviates the need for registration under s. 14 of the Act. The continued existence of the union not being in issue, Tomlin J. only adverted in passing to that question. When he did so it was to the conclusive nature of the certificate of registry of the union that he referred. I do not understand his Lordship as anywhere suggesting that had there been no such certificate the union would nevertheless have existed despite the invalid amalgamation. As to modes of bringing registered trade unions into existence, Booth's Case can, I think, only be understood as suggesting that there is a second method of bringing a trade union into existence if its facts, as reported, are taken to show the absence of any application for registration of the new union separate and distinct from the application for registration of the amalgamation. The report is perhaps not as explicit on this point as might be hoped for, no doubt because the case was neither fought nor reported with this point at all in mind. However, as will already have appeared from my references to particular passages, I do not read it in that way. Those passages appear to me to reveal clearly enough that there was a distinct application made for registration of the union, which resulted in the issue of a certificate of registry of the union. Nor can I infer from anything in the textbooks on the subject that in amalgamations there is or was a practice, at least where neither party is an unregistered union, whereby a distinct application for registration of the new union is dispensed with. As I read Booth's Case it was only the existence of the conclusive certificate of registration of the union, the absence of which is such a critical feature of the present appeal, which allowed his Lordship to follow the course he did, recognizing the existence of the union while holding the amalgamation to have been a nullity. (at p367)
40. My conclusions may be summarized as follows: the purported amalgamation did not comply with the requirement of s. 22A of the Act and is accordingly a nullity despite its registration in purported compliance with s. 23. No application under s. 14 for a certificate of registry was made in respect of the amalgamated union and no such certificate ever issued, nor any other certificate possessing whatever quality of conclusiveness s.14 (5) may confer. The amalgamation being a nullity and there being no such certificate, the amalgamated union has never become a registered trade union for the purpose of the Trade Union Act, 1881. It being common ground that want of status as a registered union involves want of capacity to sue, it follows that this appeal should be dismissed. In saying this I should make one matter plain: if in the course of this judgment I have proceeded, without question, upon the view that registration as a trade union alone confers the relevant capacity to sue, and that non-registration necessarily results in incapacity, I have done so because I have understood that to be the basic assumption upon which the arguments of all parties, both before this Court and, I believe, before the courts below, have proceeded. (at p368)
MASON J. I would dismiss this appeal for the reasons given by Gibbs J. and Stephen J. (at p368)
MURPHY J. The Trade Union Act, 1881 (N.S.W.), as amended ("the Act"), has
long served as the charter or constitutional frame for
the New South Wales
trade union system. Like constitutions, it is extremely brief, so that if it
is to operate as it was intended
to operate, it must be read beneficially, not
destructively. Such an approach is warranted in regard to a measure for the
public
convenience and has strong foundations in the history of statutory
interpretation. Cox v. Hakes (1890) 15 App Cas 506 , one of
the most
important cases ever in British courts, was decided not long after the
enactment of the Act. In it, Halsbury L.C., in explaining
how Acts should be
interpreted, quoted (1890) 15 App Cas, at p 518 from Stradling v. Morgan
(1560) Plowd 1986, at p 205a (75 ER 305,
at p 315) :
". . . the sages of the law heretofore have construed statutes quite
contrary to the letter in some appearance, and those statutes
which comprehend
all things in the letter, they have expounded to extend but to some things,
and those which generally prohibit all
people from doing such an act, they
have interpreted to permit some people to do it, and those which include every
person in the
letter they have adjudged to reach to some persons only, which
expositions have always been founded upon the intent of the Legislature,
which
they have collected sometimes by considering the cause and necessity of making
the Act, sometimes by comparing one part of
the Act with another, and
sometimes by foreign circumstances. So that they have ever been guided by the
intent of the Legislature,
which they have always taken according to the
necessity of the matter and according to that which is consonant to reason and
good
discretion'." (at p369)
2. If the Act is read narrowly and literally, one can reach the result
reached by the majority in the Court of Appeal. If it is
applied in practice,
the result of their approach will be that hardly any registered trade union
will be immune from challenge to
its existence, the validity of many
registrations and rules will be undermined, with drastic consequences on
awards. (at p369)
3. The question which comes before us concerns a challenge to the existence
of The Australian Workers' Union; whether or not it
is a legal entity capable
of suing in the pending proceedings. The case for its existence was based on a
certificate issued on 23rd
April 1974 by the Industrial Registrar appointed
under the Industrial Arbitration Act, 1940 (N.S.W.), as amended, in the
following
terms:
"I, KEVIN ROY FETHERSTON, Industrial Registrar for the State of New
South Wales, appointed pursuant to the provisions of the
Industrial
Arbitration Act, 1940, hereby certify that the amalgamation of THE AUSTRALIAN
WORKERS' UNION and THE SHOP ASSISTANTS AND
WAREHOUSE EMPLOYEES' FEDERATION OF
AUSTRALIA, NEW SOUTH WALES, was registered under the Trade Union Act, 1881, on
the 1st April,
1974, under the style of THE AUSTRALIAN WORKERS' UNION". (at
p369)
4. Registration of amalgamations is dealt with in ss. 22, 22A and 23 of the
Act which provide:
"22. Any two or more trade unions may become amalgamated together as one
trade union with or without any dissolution or division
of the funds of such
trade unions or either or any of them but no amalgamation shall prejudice any
right of a creditor of either
or any union party thereto.
22A. A trade union shall not change its name, nor shall it become
amalgamated together as one union with any other union or
unions except upon a
vote or resolution of the authority empowered by its rules to alter such
rules; and the provisions of the rules
of the trade union relating to the
procedure and formalities to be adopted and observed in respect of any vote or
resolution for
the alteration of its rules, shall mutatis mutandis, apply to
and in relation to any vote or resolution, for the change of its name,
or for
its amalgamation together as one union with any other union or unions.
23. Notice in writing of every change of name or amalgamation signed in
the case of a change of name by seven members and countersigned
by the
secretary of the trade union changing its name and accompanied by a statutory
declaration by such secretary that the provisions
of this Act in respect of
changes of name have been complied with and in the case of an amalgamation
signed by seven members and
countersigned by the secretary of each or every
union party thereto and accompanied by a statutory declaration by each or
every such
secretary that the provisions of this Act in respect of
amalgamations have been complied with shall be sent to the office of the
Registrar and registered there and until such change of name or amalgamation
is so registered the same shall not take effect." (at
p370)
5. Although in these sections the general expression "trade union" is used
(which the majority in the Court of Appeal held to refer
to unregistered as
well as registered trade unions) in my opinion, the scheme for amalgamation
set out in those sections is concerned
only with registered trade unions. In
s.22, the protection against prejudice to a creditor or union party to an
amalgamation suggests
that the unions concerned are legal entities in respect
of which a creditor may have rights and which may be parties to an
amalgamation,
rather than unregistered voluntary associations. Section 22A
contemplates that a trade union to which it refers will have a name
and rules,
in particular, an authority empowered by its rules to change its rules and
have "rules . . . relating to the procedure
and formalities to be adopted and
observed in respect of any vote or resolution for the alteration of its
rules". An unregistered
trade union need not have any of these. A registered
trade union, however, must have rules which provide for its name, a method of
making, altering, amending and rescinding rules (see the First Schedule of the
Trade Union Act). Section 23 requires notice in writing
of every change of
name or amalgamation to be sent to the office of the Registrar and registered
there and until so registered shall
not take effect. The requirement for
registration does not fit with the idea that the section is dealing with
unregistered unions.
The three sections are all under the heading, "Registry
of Trade Unions". Surrounding sections under that heading also disclose that
they are concerned with registered trade unions. Section 20 provides that a
member of a trade union may, by writing to "the registered
office of the trade
union" nominate a beneficiary for union death benefit. Section 21 provides
that a trade union may, with the approval
in writing of the Registrar, change
its name. Section 24 provides that notice of every dissolution of a trade
union under the hand
of the secretary and seven members shall be sent within
14 days to the Registrar and registered by him. (at p371)
6. Section 25 provides:
"A trade union which fails to give any notice or send any document which
it is required by this Act to give or send . . . is
liable to a penalty . . .
recoverable at the suit of the Registrar or of any person aggrieved . . ."
The section is clearly directed to a legal entity capable of being sued. This
was recognized by the majority in the Court of Appeal
who stated (1978) 1
NSWLR, at p 415 : "In s. 25 the words 'trade union' must be confined to such
trade unions as are registered under
the Act, for only those unions are
required by the Act to give notices and send documents (s. 18)." It is true
that s. 18 required
registered trade unions to give notices and send
documents, but s. 24 and s. 23 itself requires notices to be given and
documents
to be sent. (See also Mills, Industrial Laws-New South Wales, 4th
ed. (1977), p. 60.) Sections 22, 22A and 23 which deal with change
of name and
amalgamation should not be treated as applicable to an unregistered trade
union which is a voluntary association of persons
who otherwise could do as
they pleased. If by reason of this legislation they cannot amalgamate as they
please then the association
is not voluntary, its character is so altered by
the legislation that an unregistered trade union should be regarded as a legal
entity.
The inference is very strong that ss. 22, 22A and 23 are concerned
with amalgamation of registered trade unions only. The natural
conclusion is
that when an amalgamation is registered under s. 23, the amalgam, or
amalgamation, becomes by that a registered trade
union. The amalgamated union
is not then in the position of an unregistered trade union which must fight
its way back onto the register
by surviving the procedures in s. 14 (7) which
provide that an application to register may be refused by the Registrar "to
the extent
to which in his opinion, the persons entitled to become and remain
members of the trade union may conveniently belong to an industrial
union of
employees registered under the Industrial Arbitration Act 1940 . . .". The
practical effect of an interpretation that upon
registration an amalgamation
is an unregistered trade union would be to deter rather than encourage
amalgamations, and that intention
should not be attributed to the legislature.
On the contrary, once the amalgamation is registered, the amalgamated union is
to be
treated like a trade union registered other than by amalgamation. The
certification procedure in s. 14 (5) of the Act is available
for an
amalgamated union as for any other registered trade union. Section 14 is also
under the same heading, "Registry of Trade Unions".
Section 14 (5) provides:
"The Registrar upon registering such trade union shall issue a
certificate of registry which certificate unless proved to have
been withdrawn
or cancelled shall be conclusive evidence that the regulations of this Act
with respect to registry have been complied
with."
and s. 15 provides:cancelled otherwise than by the Registrar and in the following cases -
"No certificate of registration of a trade union shall be withdrawn or
7. Those sections evince a clear intention that the supervision of trade
union registration is to be under the control of the Registrar
and the
Industrial Commission of New South Wales. It is contrary to the intention of
the New South Wales Parliament expressed for
decades, in the Trade Union Act
and the Industrial Arbitration Act, that questions of validity of registration
should be dealt with
other than by the Registrar and the Industrial
Commission. Dealing with the validity of the administrative act of the
Registrar as
a collateral question also offends the principle that such a
question should be dealt with directly (see Wells J. in Hinton v. Lower
(1971)
1 SASR 512 ). I would treat these provisions as applicable to a trade union
formed by amalgamation under the provisions of
ss. 22 and 23. The result is
harmonious and sensible. The system of registration creates legal
personalities (see Bonsor v. Musicians'
Union (1956) AC 104 ) for important
public purposes (see Australian Commonwealth Shipping Board v. Federated
Seamen's Union of Australasia
[1925] HCA 3; (1925) 35 CLR 462, at p 475 ). The purpose of s.
14 (5) and ss. 15 and 15A is to overcome challenges to the existence
of the
legal
personalities. It would be pointless and defeating the evident general
purpose of the Act if registered unions formed
by amalgamation
were not
protected in the same way as others. (at p373)
8. However, counsel for respondents 1 to 12 submitted that the certificate by the Industrial Registrar was not a certificate under the Trade Union Act. Counsel for the other respondents submitted that the document may be a certificate under the Trade Union Act, but contended it was not a certificate of registry contemplated by s. 14 (5) of the Trade Union Act. The Industrial Registrar appointed under the Industrial Arbitration Act is by virtue of that appointment, the Registrar within the meaning of the Trade Union Act (see s. 26). The certificate is, therefore, a certificate issued by the Registrar within the meaning of the Trade Union Act. It certifies that The Australian Workers' Union was registered under the Trade Union Act on 1st April 1974. In my opinion, it is a certificate of registry within the meaning of s. 14 (5). Unless withdrawn or cancelled, it is conclusive evidence that the regulations of the Act have been complied with. "Conclusive evidence" means what it says, it does not mean inconclusive evidence. While such a certificate is not withdrawn or cancelled, it is not permissible to inquire whether the regulations of the Act with respect to registry have been complied with. The expression, "regulations with respect to registry", should not be given any narrow meaning. The obvious intent was to prevent inquiry into matters (such as those raised in the present case) of whether the procedures essential to registration had been followed (see Ariff v. Ariff (1912) LR 39 Ind App 237 ). (at p374)
9. If, as the respondents contend, the amalgamation process was not properly followed, the way to correct this lies under ss. 15 and 15A, not by raising the issue collaterally as in this case. This conclusion is consistent with decisions on registrations in similar areas (see Ariff's Case; In re Barned's Banking Co. (1867) 2 Ch App 674 ; White v. Johnstone (1927) VLR 310 ; Homeward Bound Gold Mining Co. N.L. v. McPherson (1896) 17 LR (NSW) Eq 281 ). (at p374)
10. In Ariff's Case (1912) LR 39 Ind App, at pp 244-245 , the Court held:
"In England the question whether the Registrar's certificate is
conclusive was decided so far back as 1867 by Lord Cairns sitting
in the Court
of Appeal. In Peel's Case (1867) LR 2 Ch 674 , after signature and before
registration a proposed memorandum of association
had been altered without the
authority of the subscribers so materially that in the words of Lord Cairns,
'the alteration entirely
neutralized and annihilated the original execution
and signature of the document'. The company, however, was registered and the
Registrar
gave his certificate of incorporation. It was objected that the
memorandum of association had not been signed by seven, or, indeed,
by any
subscribers and that the provisions of the Act had not been complied with. To
that proposition Lord Cairns assented. But 'the
certificate of incorporation',
he said 'is not merely a prima facie answer but a conclusive answer to such
objection . . . When once
the certificate of incorporation is given nothing is
to be inquired into as to the regularity of the prior proceedings'. That was
a
plain and direct decision on the point. The observations of Lord Chelmsford in
Oakes v. Turquand (1867) LR 2 HL 325, at p 354 ,
were to the same effect. 'I
think', said his Lordship, that the certificate prevents all recurrence to
prior matters essential to
registration, amongst which is the subscription of
a memorandum of association by seven persons, and that it is conclusive in
this
case that all previous requisites had been complied with'. Undoubtedly
Lord Cairns' decision has been cavilled at . . .
. . . The use of the word 'otherwise' in section 6 showed that the
statutory condition that the memorandum of association must
be signed by seven
persons was as much a condition of registration as any other requisition to be
found in the Act which was preliminary
to registration, and apparently
essential." (at p375)
11. In White v. Johnstone (1927) VLR, at pp 320-321 , the Supreme Court of
Victoria (Irvine C.J., Cussen, Mann, McArthur and Lowe
JJ.) said:
"The interpretation which we have put on the Act is one which, of
course, makes it possible for companies not complying with
the conditions
prescribed to become incorporated by the fraud of those seeking incorporation
or by misconduct on the part of the
Registrar-General. The Legislature may,
however, have considered that danger to be less serious than that which would
arise from
enabling persons to go behind the fact of registration, and, it may
be, after a company has been for years carrying on its business,
bringing its
existence as a corporate body to issue on evidence of facts preceding
registration: See Banwen Iron Co. v. Barnett."
(at p375)
12. In the Homeward Bound Case (1896) 17 LR (NSW) Eq 201 , dealing with
similar legislation, Darley C.J. emphasized that every consideration
of public
policy and public convenience pointed towards interpreting it so that an
original incorporation could not be put in question.
The amalgamation of the
two unions could have been achieved in strict compliance with the Act. This
distinguishes the case from Stevens
v. Keogh [1946] HCA 16; (1946) 72 CLR 1 where the
registration was of an organization of persons who could not be registered
under
the Act. (at
p375)
13. Until the certificate is withdrawn or cancelled under ss. 15 or 15A (if that occurs), the Supreme Court is bound to proceed on the basis that there is a registered trade union styled, "The Australian Workers' Union". The appeal should be allowed; the orders of the Supreme Court set aside. (at p375)
ORDER
Appeal dismissed with costs.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCA/1979/31.html