« IN THE AUSTRALIAN aad 5 ani oe sti IVa ype ) ) B No. 35 of 1976 INDUSTRIAL COURT ) In the matter of - THE CONCILIATION AND ARBITRATION ACT 190 BETWEEN: ROSS JOHNSON CAMPBELL Claimant - and - JOHN GORMAN and OTHERS Respondent Sydney, Coram: Dunphy, A.C.d. Tuesday, 13th December, 1977 Evatt, J. St. John, J. ORDER OF THE COURT: This Court doth Order that the nine firstnamed Respondents and each of them treat and continue to treat as a nullity all proceedings which took place at Room 68, Trades Hall, Goulburn Street, Sydney at or about 2.50 p.m. on 3 March 1976 in relation to charges laid against the claimant under Rule 37 of the Rules of the Federated Marine Stewards and Pantrymen's Association of Australasia. IN THE AUSTRALIAN B No. 35 of 1976 INDUSTRIAL COURT In the matter of - THE CONCILIATION AND ARBITRATION ACT 190 BETWEEN: ROSS JOHNSON CAMPBELL Claimant JOHN GORMAN and OTHERS Respondent Sydney, Coram: Dunphy, A.C.d. Tuesday, 13th December, 1977 Evatt, J. St. John, J. REASONS FOR JUDGEMENT Ross Johnson Campbell (the claimant) has made application pursuant to Section 141 of the Conciliation and Arbitration Act 1904 for, inter alia an order against the 9 firstnamed respondents in the following terms:- " That the nine firstnamed Respondents 4, and each of them treat and continue to treat as a nullity all proceedings which took place at Room 68, Trades Hall, Goulburn Street, Sydney at or about 2.50 p.m. on 3 March 1976 in relation to charges laid against the claimant under Rule 57 of the Rules of the Federated Marine Stewards and Pantrymen's Association of Australasia." Other orders sought originally are no longer sought. The Federal Council of the organisation referred to in the order sought at its meeting on 3 March, 1976 purported to suspend the claimant from membership in circumstances which the claimant alleges manifest a denial of natural justice and a lack of power in the Federal Council. The facts are in dispute. Because of the conclusions of law we have reached we do not find it necessary to resolve the dispute and will assume the facts to be as alleged by the respondents. The claimant was at all relevant times a member of the registered organisation, the Federated Marine Stewards and 21/2 ree ee ee Pantrymen's Association of Australasia. On 3 February, 1976 in the ship "Australian Trader", then at sea, the passengers were being served luncheon and the claimant, a ship's delegate named Richard Grenville, and others were assisting in the provision of luncheon for the passengers by carrying out duties in the pantry and handing meals to waiters from an area known as the hot press. A notice, placed there by ship's officers, prohibiting the use of obscene language by staff in the pantry had for sometime been displayed on a notice board in the pantry area. The claimant allegedly used foul language in describing to a cook nearby the propensities of one of his friends for violence and his friend's capabilities in that regard. Mr. Grenville, a steward, and one of the "ship's delegates", spoke to the Claimant about his language and the claimant replied with a question asking Mr. Grenville who he thought he was. At the time the pantry and the claimant were in charge of a pantryman who was present. The second steward, another person with power to direct the claimant was temporarily absent but on his return Mr. Grenville asked his permission to leave the hot press for the purpose of speaking to another ship's delegate named Miller. This request was granted and subsequently Mr. Miller and Mr. Grenville drafted a document which Mr. Grenville termed a "citation" making allegations of misconduct against the claimant. The main allegations may be summarised by stating that the service from the press was thrown into disruption by loud and continued disgusting language which could clearly be heard by the passengers in the dining room. .-f3 A meeting of members of the organisation on board the ship was called by the two delegates and held at 10 a.m. on & February, 1976. Subsequently, on that day, the claimant, whilst in the plate locker, used most objectionable and foul language to Mr. Grenville. No passengers were within hearing on this occasion. Mr. Grenville subsequently laid a charge pursuant to the rules of the organisation and that charge was later said to be made pursuant to Rule 37 3.(a) which rule is in the following terms: "Any member who insults or uses abusive language to any official of the Association whilst, such official is in the course of his duties ag such official, shall be guilty of an offence under these Rules." On 17 February, 1976 the respondent Leslie Mullens, general secretary of the organisation wrote on its behalf to the claimant in the following terms: "IT have been instructed by the Executive Council to inform you that you are charged under Rule 37 of the Rules of The Federated Marine Stewards and Pantrymen's Association of Australasia (amended 1959), re your conduct on board the "Australian Trader. I am further instructed by the Executive Council to inform you that you are not permitted to engage .. fh in this Industry as a Steward until your case is heard by the Federal Council of the Federated Marine Stewards and Pantrymen's Association of Australasia. You are hereby directed to appear before the Federal Council of The Federated Marine Stewards and Pantrymen's Association of Australasia at Room 68, Trades Hall, Goulburn Street, Sydney, at 2.30 p.m. on the 3rd March, 1976 to answer these charges." On 26 February, 1976 the solicitors for the claimant wrote requesting particulars of the charge referred to in the letter of 17th and by his reply dated 2 March, 1976 Mr. Mullens gave the particulars in the following terms: "Used obsene (sic) and disgusting language on two separate occasion (sic) whilst on duty. Language addressed to Union Delegate within the hearing of passengers including women and children and also the members of this Association." On 3 March, 1976 the claimant attended before the Federal Council at the time and place specified. He was excluded from the meeting room whilst evidence in support of the charge was given against him and it is conceded by respondents who were present at the meeting that in the absence of the claimant, evidence of his general conduct and character was ae) given to the council. The said council then purported to suspend the applicant from membership for a period. The claimant puts his case in a number of ways. Firstly, he submits that rule 37.3(a) has no application and there was no evidence upon which its breach could be found before the Council for the following reasons: (a) The ship's delegate is not an official within the meaning of the rule. (b) Assuming that a ship's delegate is an official within the meaning of the rule the ship's delegate was not, at the relevant time, in the course of his duties as such official, (c) Such action as the claimant took on 3 February was neither insulting nor abusive language, nor was it directed to the delegate, In addition, the claimant, through his counsel, submits that he has been denied natural justice by the respondent members of the council. He points to the letter of 17 February, above referred to, as clear evidence that at least Mr. Leslie Mullens and such members of the coyncil as were concerned in the action referred to in that letter, prejudged the matter and exhibited bias against him when they purported to withdraw his permission to work in the industry. Further, the charge was not clearly made known . 6 to him in the letter of the 17th nor in the letter of 2 March. Neither the date nor place of the alleged offences is set out and a fair reading would lead the recipient of that letter to believe that there were two occasions upon which women and 1 children were within hearing distance. Further, the claimant relies upon his exclusion from the room during the time evidence was taken and the taking of evidence, by the council, ; of his general conduct ynrelated to the specific charges also whilst the claimant was excluded from the room. As to the submissions based ywpon lack of power ijn the Federal Council because of lack of any eyidence it has been sybmitted by counsel for the respondents that the finding of guilt by the council cannot be re-examined by this Court and must be accepted whether there is any evidence on which the finding could be based or not. Reliance was placed on Australian Workers! Union v. Bowen 77 C.L.R. 601 (Bowen's Case), Bowen's case was distinguished by this Court in Clark v. Printing and Kindred Industries Union and Others (1976 9 ALR. 621). The Court 1s not bound to accept an incorrect interpretation of rules by a domestic tribunal and where there is no evidence on which the tribunal can find ag it did find, the Court in proceedings pursuant to Section 141 of the Act, may make appropriate orders. The rules contain only one reference to a delegate; it is provided that that person can demand the production of members! vee/7 contribution books and failure to so produce makes the member liable to a small penalty. There is evidence before us that the practice since 1972 on the ship "Australian Trader" was that for each four week period there was elected, at the commencement of that period, two ship's delegates. Mr. Grenville has given evidence as to what he conceived his duties to be in that position and the claimant also gave some evidence as to his understanding of the duties. It was submitted by counsel for the respondents that this evidence could be regarded as proof that this was a well known practice within the organisation and supplemented the rules. We think it too scanty to amount to such proof in relation to the practice of the organisation, as the evidence is confined to that particular ship from 1972 until 1976. No officer ; of the organisation gave evidence of any such practice elsewhere. As to the meaning of the word "official" in rule 37.3(a) it is to be noted that it is an official "of the association", which is a description which does not readily fit a person elected by the members on a particular ship. "Officer" is defined in the Conciliation and Arbitration Act and the word "Officers" is used to describe elected officers of the organisation in the written rules. Having regard to the context in which the word "official" appears we are in doubt as to whether a ship's delegate 1s an official within the meaning of that rule. We are of the view that at the time of the incident in the pantry .../8 a on 3 February there is no satisfactory evidence that such action as Mr. Grenville took was in the course of his duties as such official, even assuming him to be ane. There is certainly no satisfactory evidence that the duties of a ship's delegate would include policing rules of conduct made by the employer for the carrying out of employees' duties, particularly when the employee's superior was present. It would be odd indeed if discipline could be taken out of the hands of the superior present and in charge and vested by practice or rule in a delegate or some such person. There was, before the council, no evidence that language used by the claimant in the hot press area on 3 February was addressed to a delegate, or was insulting or abusive, It was argued that the incident of 8 February, 1976 was merely a prolongation or continuation of the incident of 3 February. This desperate attempt to justify the council's decision has no merit. There is nothing in the evidence to support it. The combination of circumstances adverted to in relation to the laying of and the wording of the charge, the holding and conduct of the meeting of the Federal Council at which the claimant was suspended in our view clearly amount to a denial of natural justice. It is unnecessary for us to consider whether any one or other singly or in combination would amount to such denial. The claimant was entitled «1/9 to more specific information as to what the charge or charges were against him. He was entitled to know what the evidence against him was. He was entitled to have the evidence confined to those charges at least up to the stage of a finding of guilt. Clearly, justice did not appear to be done. Counsel for the respondents has urged that we exercise our discretion against the claimant because he admitted using foul language to the delegate Mr. Grenville on 8 February, We decline to do so. To leave a finding of guilt to stand may affect the claimant's future both in relation to his work and his membership of the union, We make absolute the order sought.