- . oe ree oe tt AO COMMONWEALTH OF AUSTRALIA . IN THE FEDERAL COURT OF AUSTRALIA INDUCTRIAL INDIVISION S.A. No. 13 of 1977 In the matter of - THE CONCILIATION AND ARBITRATION ACT 7190 Between - And - ORDER JUDGES MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: vA COLIN FRANCIS MURPHY Claimant AUSTRALIAN POSTAL AND TELECOMMUN-— ICATIONS UNION Respondent Smithers, Evatt and Keely, JJ. 26th October 1977 ADELAIDE 1. The Rule Nisi herein be discharged. oh eee ee Ce vores -e we tt es ae ood pe ean he eee ee ere * SHITHERS , C/MO/ic Murap at. te ee ee -— ee —— J: We are sorry we have kept you gentlemen so long, Tut we thought we sheuld give thougrs to the questi as to whether or not we should keep you longer still by requiring argument on the other substantial points in these proceedings. We took time to consider whether or not ve thought the prelininary point was a good one, After such consideration, we have come to the conclusi:: that the preliminary point taken by the respondent is good one and therefore an ansvfer to tne proceedings, ° have taken tine to reduce our reasons to form and they are as follows: These are applications nade pursuant to sections 140 and 1441, the substantial objective of vhi~ at was to achieve the setting aside o* an expulsiion cf u. claimant by the union in September 1976, In this case there was a preliminary question as to whether the clainant was a member of the union cv the institution of these proccedings. For the purposos both of section 140 and section i4i, the claiuont?s entitlement to bring the proceedings is conditional wo. his being a member of the union at the time of commenscir proceedings. The claimant was a member of the union for many years before 26 July 1976, but it is said by the respondent that on that date he gave three months! now_- of intention to resign, and also paid to the union euntributions which would be payable py him during the ensuing three montns if he were a member during thai ti. and that in consequence thereof, he veased to be a monk ab the expiration of that three months in October 1976; These proceedings rere commenced on 18 Auguse 1977. It appears that on 26 July 1976 the clainansd forwarded to the secretary of the South Australian bran. of the union a letter in the following terms: "Resignation fron APTU union ~ C.F. Murphy The Secretary, APTU Union, Rosser House, 62-64 Sturt Strect, Adelaide. TI hereby resign from the APTU union and cancel My authority form for deductions of union dues from my fortnightly pay. My reasons for resigning are as follows: (1) I object most strongly to the sannez 2 which we were told to strike on a political. issue. Wy JUDGELENT 26/10/77 "some RAV /M0/41.¢ Murap eee et (2) The blacknail tectics being uscd by the union in forcing members to strike (3) The fact that members are not boing given a say re action to be taken re tledibank issues > (4) The manner in which the federal executive are apparently domgreding lines positions in the line staff reorganisation ' (5) The irresponsible actions of the State aml Federal executive in naking a recomnendation fron the ACTU a directive then at least two weeks' notice of possible action was fore shadowed and nenbers' feelings esuld easily have been obtained in each area by the union rep and votes forwarded to the state execu~ tive for counting (6) For helping the Fraser governnent disnantle the Medi-bank schene by doing the job for the governnent. . a Yours faithfully, C.F. Murphy, Member In, 570" With that letter, the clainant sent a cheque for the sun of $13. We infcr that the letter and the cheque being sent together were intended to be understood and would be understood by the recipient as being related the one te the other and to speak with reference ta the subject of the letter, nanely, the resignation fron the APTU union of Mr. Murphy. It is our view thorofore that, ih the inter~ pretation of each one of the tyvo docwients, the terns of the other is relevant and must be teken into account, They were presented to the union as a single cornmunication and would be understood as such, just for instance, as in the case of a cheque which is sent together with an invoice both docunents have to be read md interpreted together, In this case not only the cheque and the letter have ts be interpreted togethcr but both doaunents are clenrly referable to the rules of the organisation. The purported resignition is resignation fro: menbership, the mcenbership is governed by the rules, and the rules contain provision for resignation. Prina facie therefore a notice of resignation by a menber is to be understood as referable to the rules, The esnsequcnee is that the rules, the letter and the cheque are to be interpreted in the Light of each other. Rule 19(d) is in the following terns: 42 JUDGEMENT 26/10/77 — oF wae roe NAT /M0/2e Murap ""Suhject ts the act and to rule 2B no qualified person shall be entitled to resign his nenbership of the uni>-n except by giving at least three oonths! written notice of such intention to resign to the secretary of the branch t> whien he is attached and upon paynent at the tine .f such notice of resignetion of all contributions and other dues svins by hiu to the union uy to the end of the perivd of his notice of resignation". Mr, Millhouse for the clainant argued that the letter speaks unanbiguously and states an intention to resign forthvith. He relies on the apparently unanbiguous statenent in the first three words "I heroby resign" and the absenee fron the letter of any words yvhich qualify that firn statenent. However as indicated above the Ictter was acconpenied by the cheque and as stated above the terns of the cheque may throw light on the total intination to the union constituted by the forvrarding of the letter with the cheque. The cheque was for $13. That sun is explicable by reference to rule 19(d) and is clearly the sun of contributions which would be owed by the member during the tire referred t> under rule 19(d) as "up to the ond of the period of his notice of resignation", if the letter were to be interpreted as three months! notice of resignetion. According ts the rules, that is the precise sun which is payable under what is called the scaond part of rule 19(d). That it is intended to be the sun so payable is to be gathered fron the fact that in the letter the elainant has taken steps to ensure that the deductions ordinarily made for union contributions from his wages and forwarded to the union should cease forthwith, Otherwise the $13 vould be a dcuble peynent in respect of the threc nonths! period. In these circunstances it is cur view that the expression "I hereby resign" cannot be interpreted literally. It nust give way to the force of the rule, the inplications from the cheque and its amount and the cancellation of the deductions from the wages. It would be a surprising notion that the claimant vould at the sane tine express an intention to resign instanter and would pay three months! contributions for a period when he was n- longer a nember, We arc conscious of thc argunent that Mr, Millhsuse put te us in this rcsnect. But interpretaticn acecrding to the view that we heve taken recmnciles the contents of the letter and the cheque and the rulcs. Mr, Millhouse relied upon the judgoment of the 43 JUDGEMENT 26/10/77 vO eens aoe yer ace = ee ee S Ft £7] ——_. > 5 - wt fa ae ne et ee te er ee ~—. eee Hee a nee eee ~~ ~ 7 t . . or" Industrial Court in Hassett v Harding decided on 29 September 1976 when problems akin to that before us today were dealt with, However there are olear points of distinction betyreen the documents of alleged resigna~ tion considered in that ease and those before us. It could be seen fron the contents of those docunents on their proper interpretation they spoke unambiguously to the effect that the purported resignations were to operate immediately. In this case the total decunents of resignation, nanely the letter and the cheque on their proper interpretation in the Tight or rule 19 (d) also speak unaubiguously as to the date on which the resignation the subject thereof is to take effect, but that date is the day of the expiration of the ncriod of three nonths fron the communication in question. We have not overlocked the provisions of s.145(1)(b). The situation as we see it is that the resignation being an effective resignation under the rules, the provisions of s.145(1)(b) are not significant. No arguient was put to us that that sub-section did have any Significance. It should be observed that the conclusion which we have reached by reference to the interpretation of the relevant docunents is in accord with - (a) the statement by the clainant in his affidavit that he forwarded the cheque for $13 pursuant to rule 19 (b) the statement in the affidavit by the clainant that he forwarded the cheque with. tne letter and (c) the attendance of the claimant when charged with the offences in respect of which the branch purported to expel hin, his plea of not guilty to those charges and his omission at that hearing to take the puint that he had already resigned. 'That hearing oceurred during the three months period referred to above. Having regard to the foregoing the rule nisi should be Gischarged. wy ee ce eee oe a ee. ee ee ee ee oe Ne er eapmtenn ye eemncers eee aeons eee eee Fs) Poser meer: