i : i i i i i ] ] a | H | '1 fan At tne ek eres ee EE) cee ae See mR ee ee oe te ne eek en tt tea, JUDGMENT No. sane! Semmal 22 Se IN THE FEDERAL COURT ) ) No. 29 of 1977 OF AUSTRALIA ) IN THE MATTER of the Concilzration and Arbitration Act 1904 as amended AND IN THE MATTER of an application under Section 141 of the said Act. BETWEEN: DAVID CURISTOPHER ROOTS Claimant AND S. MUTTON, G. SMITH, T. BOURKE, R. MASTERSON. R. HEVEY, I'. FAIRWEATHER, G. WILLIAMS, R. PROVAN, C. BIGNELL, R. NUSKE, J. SHEPHERD, A. HORROCKS and G.R. CRAWFORD and K. JOWETT First Respondent AND: A.F. HECK, B.F. BURNS, T.J. BOURKE, "H.C. SILVER, R. PROVAN, A.C. HELLBRONN , and A.l. FRANCIS, G.P. BRITTEN and M.H. DUGGAN Second Responijent ORDER JUDGES MAKING ORDER: J.B, Gweeney, Evatt and Deane JJ. DATE OF ORDER: 23rd March, 1978. WHERE MADE: Sydney THE COURT ORDERS THAT: 1. That the Respondents S. Mutton, G. Smith, T. Bourke, R. Masterson, R. Hevey, F. Fairweather, G. Williams, C. Bignell R. Wuske, G.R. Crawford, K. Jowett, A.F. Heck and A.L. Francis and each of them treat as null and voz1d the purported resolution of the Council Exega ie OF the organization purporting to suspend From holding office in the Union from lst November, 1977 to 31st May, 1978. That the said respondents and each of them perform and observe the rules of the organization by recogniz— ing the applicant as an elected organizer of the a alata etn Nenana etn ate, ce an IO ent nes nme Queensland Branch of the organization for the balance of the term for which he was elected. Date entered: DISTRICT REGISTRAR. en ce ar Ee a bel METAS A i a ah Sa a fae DiLacslt El Ns om RIN R Naa Amdt we oh eat LONI Nad RN Fa AY rer ty ot eee earthy abe Mak Reed nth AV aL An deat Ann Ret lL it ney Ana ty he * IN TUE FEDERAL COURT) ) No. 29 of 1977 OF AUSTRALIA ) IN THE MATTER of the Conciliation and Arbitration Act, 1904 as amended AND IN THE MATTER of an application under Section 141 of the said Act. BETWEEN: DAVID CHRISTOPHER ROOTS Claimant AND: S. MUTTON, G. SMITH, T. BOURKE, R. MASTERSON, R. HEVEY, F. FAIRWEATHER, G. WILLIAMS, R. PROVAN, C. BIGNELL, R. NUSKE, J. SHEPHERD, A. HORROCKS and G.R. CRAWFORD and K. JOWETT + + | First Respondent is A.F. HECK, B.F. BURNS, T.J. BOURKE, H.C. SILVER, R. PROVAN, A.C. HEILBRONN, and A.L. FRANCIS, G.P. BRITTEN and M.H. DUGGAN Second Respondent CORAM: J.B. Sweeney, Evatt and Deane JJ. 23rd MARCH, 1978. REASONS FOR JUDGMENT J.B. SWEENEY, EVATT and DEANE JJ: This 1s the return of an Order Nisi made by Evatt J., on the 16th December, 1977, pursuant to s. 141 of the Conciliation and Arbitration Act 1904 ("the Act"). pn shen tndintaon nce cme Sa lta ttt lane Res Lee naira el ee Soames Bika atl sete i erereleR NE haat Mattes Aaa Annas Vaan Katine ott an wrnntin dais tna nites Senate dV ohesadl 4 Siete danienenmanein AAreteet Rites aan el, tA ean tn temecmrie ten adhe st wae! — The applicant, David Christopher Roots, is a member of the Australian Plumbers and Gasfitters Employees' Union ("the Union") which 1s an organization of employees registered under the' provisions of the Act. In May, 1975, the applicant was elected as an organizer of the Queensland Branch of the Union for a term of three years terminating on the 3lst May, 1978. In October, 1977, charges were laid against him before the Federal Executive of the Union. These charges were heard by the Federal Executive on the 3lst October, 1977 and the following day. On the lst November, 1977, the Federal Execrtive, having heard the matter, carried a resolution in the following terms: "The Federal Executive, after hearing all the evidence, find the eharges proven, and suspends D, Roots from holding office in the Union from the lst November, 1977 to the lst May, 1978". It is common ground between the parties that the Tederal Executive purported to deal with the applicant and to impose the period of suspension which it imposed pursuant to Rule 36(12) of the certified Rules of the Union. So far as is relevant, that Rule 1s in the following terms: "12. Phe Counetl Executtve shall, subject to the confirmation or otherwise of its actions by the next ensutng meeting of the Council, have the following powers:- (a) to suspend from office, or impose a fine not exceeding $50.00 on any member of the Unton tf it ts salisftied that such member - Co (iv) has behaved in an insulting or offensive manner at any meeting of the Unton or of a Branch; " eee wee em reer ee ne tone ener rte vesreer esr e reer eer eeree o pass naman eae See beaten neta The applicant seeks orders that such of the respondents as are at present members of the Federal Council of the Union or members of the Committee of Management of the Queensland Branch of the Union perform and observe the Rules of the Union by treating as null and void both Rule 36(12) and the purported suspension of the applicant in pursuance of the provisions of that Rule. The grounds upon which the applicant relies are: (i) that the procedural steps leading to the purported insertion in the Rules of the provisions of Rule 36(12) were ineffective with the result that Rule 36(12) was never validly introduced into the Rules; (ii) that even if the procedural steps necessary to amend the Rules by inserting the provisions of Rule 36 (12) had been effectively taken, the provisions of Rule 36(12) are null and void as being contrary to the provisions of both s.133 (1) (£) and s.140(1)(c) of the Act; and (iii) that, even if the provisions of Rule 36(12) are not invalid, the purported suspension of the applicant from holding office in the Union for the specified period was beyond the powers conferred upon the Federal Council by those provisions. The provisions of Rule 36(12) were purportedly introduced into the Rules by a resolution passed at a meeting of the Federal Council of the Union held in November, 1975. At the commencement of that meeting, the only reference to amendment of the Rules which appeared in the Rules of the Union were the provisions appearing in what is now Rule 28. Those provisions are as follows: "AMENDHENT TO RULES 1. Whe Rules of the Union shall not be amended except on a resolution earried by a majority of the Counetl. cee BL Meteo an ce amy Mate LA tet Amen aE eT ae PE ne O PE TEST Dn OO STON UTE DOTS SO PURE TEN en TT Dee UT Une Ret aSOren TITETLTO DT Nn TOT Thee WVaN Weer eer mreay a tancetatst var dilstadtame m ns dL ta t itie he eres ata aa 2. <Any member desiring to submit to the Council any proposal to amend the Rules must first submit such proposal to the meeting of his Branch spectally convened for the purpose. 8. If such proposal be approved by a majortty of the members present at such meeting it shall be forwarded to the Head Office for submisston to the Counetl. 4, The General Seeretary shall prepare an agenda of any such proposals and forward copies of same to all Branenes, not less than stx (6) weeks prtor to the Council meetings to whteh such proposals are submitted. 5. The Council may at any Lime make or amend any Rules, so that the Rules of the Unton may comply with the requtrements of the Commonwealtn Coneiliat- ton and Arbitration Act, or any stmilar Slate Act". The Rules of the Union comprise the compact between its members. In the absence of legislative provision to the contrary, there is no inherent power in the Union to alter or amend its Rules except possibly where the alteration or amend~ ment is made with the agreement of all its members. Any power to alter them must, in the absence of legislative authority (and there is none), be found in the Rules themselves. Where the power exists in the Rules it must be fairly construed. Any purported exercise of 1t which goes beyond the ambit of the power when so construed or which disregards mandatory canditions which the Rules prescribe for the exercise of the power will be ineffective. If the power of amendment is given by directory pro- visions (as distinct from mandatory conditions) relating to the manner of its exercise, failure to comply substantially with those provisions will ordinarily invalidate a purported exercise of it (se Scurr v. Brisbane City Council (1973) 133 C.L.R. 242 at 255-256). eet et ent ee ae ot a na eA Rm tm rE lA SA Aen aha ache lintel cian a Li abl atta Sh ahh abot Hemmncmmeneinib nates nach ich a ah SR et LN RN Lom PR Ae Leann ee he of OE The first thing to be noted about the provisions of Rule 28 is that they do not, in express terms, confer upon the Federal Council any general power to amend the Rules. The provisions of sub-clause (1) of Rule 28 are, in terms, prohibitory: the Rules shall not be amended except on a resolution carried by a majority of the Council. The following three sub-clauses of Rule 28 prescribe a procedure designed to lead up to the consideration by the Council of a proposed amendment to the Rules. Sub-clause (5) of Rule 28 dispenses with the need to comply with that prescribed procedure and confers an express power to amend when, and only when, the proposed amendment to the Rules js in order to attain compliance with legislative requirements. Unless there is to be found, in the provisions of Rule 28, an implied power in the Federal Council to amend the Rules, the applicant is plainly entitled to succeed in these proceedings. In the absence of such an implied power to amend, neither the addition of the provisions to be found in Rule 22(6) (d) to which reference will subsequently be made nor the provisions of Rule 36(12) in pursuance of which the resolution suspending the applicant was purportedly passed were ever effectively added to the Rules of the Union. We have, however, reached the conclusion that the provisions of Rule 28 clearly confer upon the Federal Council an implied general power to amend the Rules in the manner and in accordance with the pro- cedural steps which the Rule, by negative and positive stipul- ations, prescribes. The fact that the power to amend the Rules contained parb WO RANKER ee oss Simin al RAE nL lA Ia Bah et tel AP ALI Cet Tae Maat rhe Manta oat amet tml pitas AERO ATE Aa Pn Ne a LL a Nl nal ee tt nk te A ls lteter ne in Rule 28 1s implied rather than express is, in itself, a strong indication that the provisions of the Rule which not only prescribe the procedure for the exercise of the power but form the very basis from which the existence of the power is implied are mandatory rather than directory. The language in which that procedure 1s couched serves, in any event, to make that clear. The verb "shall", in sub-clauses (1), (3) and (4) and the verb "must" in sub-clause (2) are clearly more approp- riate to mandatory conditions than to directory provisions. The dispensation, in sub-clause (5), of the need to comply with the procedural requirements in the limited class of amend- ment with which sub-clause (5) is concerned underlines the mandatory uature of those requirements in the ordinary case. Quite apart from the above considerations, there is a more fundamental reason for construing the procedural require- ments contained in sub-clauses (2), (3) and (4) of Rule 28 és mandatory rather than directory. Underlying these provisions is the obvious philosophy that, apart from the case where amendment is necessary to comply with legislative requirements, amendments to the Rules of the Unioa should have a basis in the membership itself. The initial promoter of an amendment to the Rules is seen as acting in his capacity as a member of the Union rather than as an officer or as a member of the Federal Council orjthe Committee of a Branch of the Union. The proposed amendment must, 1£ it is to be submitted to the Federal Council, be approved by a majority of the members of the Branch to which the relevant member belongs at a meeting specially convened for the purpose of considering it. It cannot nee nt sy ea i taretoarnre! 2 ra Saban als efile pA ne ta ae Atta BNP Pl Ea SR i ahd eH aD teh a alte tk ata a na tr Mon a manta AS han masta Snanctamdi nana ial a (ateadtaamt hea at ZEnat PM Seater. be dealt with by the Federal Council unless notice that it is proposed to consider it has been forwarded to all Branches of the Union not less than six weeks prior to the relevant meeting of the Federal Council. The requirement of notice to all Branches is clearly designed to ensure that, except where the proposed amendment is to meet legislative requirements, no amendment will be made to the Rules of the Union without the members of the Union being, at Branch level, given the opportunity of considering the proposed amendment and making their views known in relation to it. Since Branches meet monthly, six weeks' notice is designed to ensure that each Branch will meet after it gets notice of the proposed amer.dment and before the Council meets. As has been said, the provisions of Rule 36(12) were purportedly added to the Rules of the Union by resolution passed at a meeting of the Federal Council held in November, 1975. It could not be suggested that their addition to the Rules was necessary to secure compliance of the Rules with any legislative requirement. Compliance with the procedural requirements prescribed by Rule 28 was therefore necessary if the amendment was to be validly made in pursuance of that Rule. In fact, there was no such compliance. The amendment originated with the Queensland Branch. No relevant special meeting of Members of the Queensland Branch was ever called for the purpose of considering the amendment. It was not, in fact, either con- sidered ox approved at any relevant meeting of the members of that Branch. It was forwarded to the General Secretary of the Union with no warrant other than a resolution of the Committee tet ened te lh hn Ler aR A a pn a enna teenie en nn NRL a RCRA a ba AN Ne Rl ie tt SESE he Et a Sn onsen SAE al DAB POA ADLER I haste Moa ctate te ate SOIR Mah ANE et I Bort Di of Management of the Branch to back it. It was submitted on behalf of the respondents who appeared to defend the proceedings that the Federal Council's power to make the relevant amendments was to be found in the provisions of Rule 22(6)(d) rather than in the provisions of Rule 28. Rule 22(6)(d) was inserted in the'Rules of the Union at the November, 1975 meeting of the Federal Council at a point prior to the passage of the resolution purportedly insert- ing the provisions of Rule 36(12). It provides: "6. The funetton of the Council shall be to administer the Rules of the Union for the general welfare of the members, to endeavour to carry out the objects of the Unton and to consider and transact all business submitted by the Branches, where necessary to matntain the proper funetioning of the Unton and shall provide for: (d) to repeal, alter or add to the Rules of the Unton; " CD It was also submitted, on behalf of those respondents, that, in order to give sense to the sub-clause, the words "shall provide for" should be read as meaning "Shall include power". In the view we take of them, the provisions of Rule 22(6)(d) do not, in the context of Rule 28, add any power to the powers already possessed by the Federal Council. They simply make explicit, in detailing the functions of the Federal Council, the power to repeal, alter or add to the Rules which was already implicit in the provisions of Rule 28. In A a et At ie te eee eh ee peri OLIF ath es Renee A AU ke le cme bE Ratt Oa eee ed eI aN a tele on PA etry He any event, even if Rule 22(6)(d) were properly seen as an independent grant of power to amend, alter or add to the Rules, the mandatory procedure contained in Rule 28 would, in the view we take, be applicable to the exercise of that power. Our conclusion in this regard is fortified by consideration of other provisions contained in Rule 22(6). Thus, for example, it 1s inconceivable that the inclusion, among the functions of the Federal Council, of the power to appoint the members of the Executive should be seen as independent of the specific powers contained in Rule 31 and as warranting a disregard of the procedures laid down by Rule 31 as applicable to such appoint- ments. In any event, it would seem unlikely that Rule 22(6) (d) would em have been operative at the relevant time since it would not have been certified by the Registrar (see s.139(4) of the Act). It follows that the failure to comply with the mandatory procedural requirements specified in Rule 28 had the consequence that the amended Rule under which the suspension was imposed on the applicant was not validly adopted by the Federal Council. Even if the procedural steps set out in Rule 28 were directory rather than mandatory, we would remain of the view that the provisions of Rule 36(12) were never validly adopted for the reason that we consider that the failure to comply with the procedure set out in Rule 28 was of such significance as to prevent there having been any substantial compliance with that procedure (see Scurr v. Brisbane City Council, supra). This position is not affected by the fact, that the ea ee a ee et Lr -10- Rule, in its amended form, was certified by the Industrial Registrar and remains part of the "certified rules". In proceedings such as these, it is open to an applicant to attack the validity of a rule on grounds which go to its original adoption notwithstanding subsequent registration of that Rule (Krantz v. Maynes 10 F.L.R. 134). Indeed, it was common ground between the parties that the purported suspension of the applicant Mee SO ne esth Ladi Lane retiree etal ee ae A a war FOES er SOTO ORE Se EET LAE ETO SEWN NT Ser CO een eteere SSS On ee See Cen we TE could not be ion that the validly been In justified in the event that we reached the conclus- provisions of the so-called Rule 36(12) had never adopted. the result, the applicant has never been validly suspended from the office of organizer to which he was elected. He is entitled to orders: That those respondents who appeared treat as null and void the purported resolution of the Council Executive of the organization purporting to suspend him from holding office in the Union from lst November, 1977 to 3lst May, 1978. That the said respondents and each of them perform and observe the rules of the organization by recognizing the applicant as an elected organizer of the Queensland Branch of the organiz-— ation for the balance of the term for which he was elected. Having reached the conclusion we have, we find it frets naman at oe Peed ene te mt on pu reenter fan nina res ane eat ne en ne ee em Ate nent aDemteanere nonin nels seed Lafare amc eMeaainns Bel amy . ~ll- unnecessary to consider the other matters raised. We feel we should however point out that the Rules appear to be in a somewhat unsatisfactory state and will inevitably present further difficulties of interpretation both to members and officers and, in the event of dispute, to the Court. It is clearly desirable that steps be taken, as soon as practicable, to remove such difficulties. It is noted that, even though the Union did not seek to make submissions as to the validity of Rule 36(12), we were assured that the Order Nisi had in fact been served upon it. It should also be noted that our decision in favour of the applicant does not involve any finding that the applicant was not guilty of the conduct charged against him or that the facts were not such as to warrant the taking of disciplinary action against him. These matters have simply not been involved in the questions which have arisen for decision in these proceedings. I certify that this and the - fev preceding 1 ages are & true cory of the Reasons for Judgment herein of has Honouis Mr. Justice ? Kbaveeraey, fire pote Evtete ¥ At pattie LO Haste Dated : 99/3/76