CATCHWORDS Industrial law - conciliation and arbitration - organizations - orders directing performance or observance of rules -~ relevant rules previously declared to be contrary to s.140 ~ - adoption and enforcement of policy to give effect to those rules - validity of resolution adopting that policy. Conciliation and Arbitration Act 1904, ss.132, 133, 133A, 134, 139, 140, 141, 157 Conciliation and Arbitration Regulations reg.115 DUGMORE v. PORTER and ORS. N.S.W. No.27 of 1982 Northrop J- Sydney 17 December 1982. DELLE EAN OPT OM GRATE BNR ASTER He EL eat aS eee OR IN THE FEDERAL COURT OF AUSTRALIA ) ) NEw SOUTH WALES DISTRICT REGISTRY ) N.S.W. No. 27 of 1982 ) . INDUSTRIAL DIVISION ) BEIWEEN: JOHN DUGMORE Applicant and J. G. PORTER and ORS. Respondents NORTHROP J. REASONS FOR JUDGMENT 17 DECEMBER 1982 The issue raised by these proceedings involves a matter of policy passionately adhered to by a large number of members of the Printing and Kindred Industries Union, "the Union", namely the adoption and enforcement of the O.K. Card system. The question raised by the proceedings 1s whether action taken by the respondents herein to implement and enforce the O.K. Card system within the New South Wales branch of the Union, "the Branch", is authorized by the rules of the Union or on some other basis. To be more accurate the question is whether the respondents should be directed to perform and observe the rules of the Union and of the Branch by ceasing to implement and enforce the C.K. Card system in New South Wales. OS POPE AE Ren tered aN ee NAR TY AAT TONG Bt te me eee PN py Py 4 - ' : - 1 PPL, OMT OO tT ' ST a eae At all relevant times the Union has been an organization of employees under the Conciliation and Arbitration Act 1904, as amended, "the Act". Union rule 57 of the Rules of the Union contains provisions relating to C.K. Cards. It is set out in full: " Union 57. -— O.K. Card. (1) A Branch shall make provision in its Rules for the issue of the O.K. Card provided such Branch Rules do not conflict with the Rules an@ By-Laws of the Union. (2) An O.K. Card is a document in the form prescribed by Clause (6) of this Rule and 1ssued by a Branch to a fanancial member attached to that Branch which member 15S seeking employment in the Industry within the area of the Branch or who desires to transfer from his employer to another employer within the area of the Branch. (3) An O.K. Card is not a Clearance Certificate or a Transfer as specified in Rule 6. (4) An O.K. Card issued by a Branch is valid only in the area in which the Branch has Jurisdiction and for the specific purpose for which the 0.K. Card has been issued. (5) A member who falsely obtains an O.K. Card or having been issued with such a Card alters it may be charged with a breach of paragraph (e) of Clause (3) of Rule 47. (6) The O.K. Card shall be ain the following form: ve Tether My ' SST TEE Se en Fa ITSO EE IT AE vy Et ey PDE SP SESS Se Se pee omep nets ae Sas ae we Printing and Kindred Industries Union eee eee eee eee eee eee eee se Branch O.K. CARD The bearer of this Card ..... (Name)....-. Roll No..........-is a financial member of the Union and is entitled to all the privileges of a financial member. Union Classification ..... pew cere e rer eees Proposed Employer.....(Name and Address) cee cece e eee eee eee ececees ISSUINg Officer wee cece ace eee eeeeeeeeeeee Date of Issue This card is not transferable." Prior to 9 August 1977, Branch rule 7 and branch rule 10 cf the rules of the Branch were headed "Admission of Members" and "O.K. Card" respectively and contaaned many provisions giving effect to the O.K. Card system as envisaged by Union rule 57. On that date, the Australian Industrial Court, constituted by Dunphy, Joske and St. John JJ., Gelivered judgment an Clark v. Pranting and Kindred Industries Union (1977) 30 F.L.R- 39. Branch rules 7 and 10 theretofore 1n force are set out at pp.54-57 and need not be repeated in full. I1t ais sufficient to set out the following sub-rules only: " 7(g). & member having gained admission to the branch through one section of the industry shall not be entitle@ to work in any other section without having obtained permission from the executive in accordance with these rules. oe POEM ELON ete AY OIE ET a STEEL UES Pt MLE Ne PTR eee x TT, Tt MESES SERN SAA Dr ee a 7(ai). Any member wishing to accept employment in any section of the trade other than that in which he is registered in the branch records shall first apply to the executive for approval. If the member's - application 1s refused and he accepts employment outside such section he shall render himself ineligible to continue his membership of the union. 10(5)(a). Any member who, having obtained a job or position from any employer, shail commence work before obtaining an O.K. card may, after full inquiry and careful consideration by the executive, be fined a sum not exceeding ten dollars ($10) for each such offence. (b). Any member leaving one employer and commencing work for another employer without first obtaining an O.K. card, may, after full anquiry and careful consideration by the executive, be fined a sum not exceeding ten dollars ($10) for each such offence. (c). Any member of the branch in the employ of any employer who fails to ask another member or non-member about to start work in his department in his place of employment to produce to him the O.K. card of the branch, or on the failure of such other member or non-member to obtain and produce to ham such O.K. card fails to notify such failure to the secretary-treasurer within twelve hours thereafter, may, after full inquiry and careful consideration by the executive be fined a sum not exceeding ten @ollars ($10) for such offence. (d). The secretary-treasurer shall forthwith supply to any member applyin for the same at the registered office o the branch an 0O.K. card ain the form set out hereunder ; provided that such member at the time of such application is a financial menber of the branch." The effect of those rules can be summarized. The conditions of elagibility for menbership of the Union cover many different occupations including several trades which eg ee TES eg TE ISSR Ts ER ee RD TN TERT TREE TREO TO EE AAO ot require apprenticeship training. The Union claimed that the C.K. Card system implemented and enforced under Branch rules 7 and 10 resulted in a rational system and fair allocation of work between members of the Union. For instance, the polacy was implemented to prevent members trained in one trade from taking jobs from members trained in other trades. In Clark's case, the Industrial Court made orders under s.140 of the Act declaring that Branch rules 7 and 10 contravened sub-section (1) of that section. As a result, as from 9 August 1977, those two rulus have been deemed to be void and of no effect, sec what 1S now sub-section (5G). Since then the ELranch rules have been amended by deleting the old Branch rule 7 and substituting a new rule 7 which incorporates Union rule 5 relating to admission of members, and by deleting old Pranch rule 10. While the proceedings in Clark's case were pendang in the Industrial Court, a mass meeting of members of the Branch was held on 9 April 1976 at which the following resolutions were passed: "Thas mass meeting of PKIU members, representing all sections of the Industry, condemns and rejects the disruptive interference with the rules and policies of our Union and calls upon the Australian Industrial Court to reject the application of the employer acting through his pocket against our Branch Rules. "Any farlure of the Court not to take heed of our request will be done in the face of our firm declaration to uphold and carry out all . ARES, AT EET LOT ee MO QE HE R ores the present and future rules and policies of the Union with special emphasis on our OK Card." On 10 August 1977, following the judgment of the Australian Industrial Court, a meeting of delegates and Fathers of the Chapel (F.0.C), being honorary officers of the Branch, met and resolved in substance that no person would be allowed to start work without first having obtained an C.K. Card from the Branch, that no member would be allowed to work outside his or her classification without the permission of the Branch and that the rules and pclicy of the Union would be adhered to strictly. On 15 August 1977 a special neeting of the Executive of the Branch resolved as follows: "That the Executive implements the decision of the 9th April, 1976 industry mass meeting, and further that the recommendations of the FCCs and delegates meeting of 10th August, 1977, be endorsed, and that the date of Tuesday, 23rd August be scheduled for the recommended mass meeting and the bulletin as printed, be circulated with any necessary amendments." On 23 August 1977 a mass meeting of members of the branch adopted the following resolution: "This PK1U NSw Industry Mass Meeting instructs all members in all shops to our executives anda officals, to maintain the strictest adherence to continuing the use and issue of our OK Card. EPS TE OLED PAT ETO S I TTD BEE EI RNG ad TAO DTT AL IR Te, eI Tee Sar a i ial SOC et ra "This Meeting further rejects the statement of the Judges who attacked the honesty and integrity of the Federal Secretary, NSW Eranch President and Branch's Secretary and Assistant Secretary who gave evidence on behalf of the Union menbership. "We further iunstruct our Branch officials that there is to be no departure from the protection of our andustry, classifications and rates of pay that our various classifications command. "We support our Federal Secretary, our NSW Branch Executive and officials, together wath all menbers who have worked and demonstrated to protect our rules and policies and we condemn and will remember those who have sought and are seeking to do us so much harm." On 5 September 1977, @ meeting of the Executive of the Branch endorsed the resolution passed at the mass meeting on 23 August 1977. Thereafter, the policy thus adopted has been published in the journal of the Branch. A typical example of the publicity 21s given by the following advertisement which has been published regularly: " OK CARDS The attention of all members 15 drawn to the rules and policies of the Branch regarding employment. Canvassing of jobs is not permiatted and no member shall start work without an OK Card." Since 5 September 1977, the Executive of the Branch, being the Comnittee of Management of the Branch, has accepted as a statement of policy binding on all members of the Branch the resolution passed at the mass neeting of TAT ART ARLE I Ee i ngteteap tte acres 2 tte Se eR Le ee eS me AD gy OUTTEE eem Peente YPN EMU E NS tl LE tea ee TERY Rt BOTA ' - , 2 ye TR " members on 23 August 1977. The members of the Executive have continued to implement and enforce that policy in the 'same manner as 1f old Branch rules 7 and 10 were still valid and in operation in New South wales. The present proceedings were instituted as a result of what occurred after the closure of the Sun Gravure Pty. Ltd. plant. As a result of that closure a number of members of the Union who were classif1ed in trades or occupations associated with gravure printing were unable to obtain work within their classifications. A number sought work in other classifications. In particular a number sought work in classifications in trades or occupations associated with lathographic printing. Their attempts to obtain that type of work were obstructed by reason of the implementation and enforcement by the khxecutive of the Branch of the OK Card policy. In particular, the applicant was one of the persons so affected. He obtained employment with Associated Lithoscans, a lithographic printing works, without heving first obtained an O.K. Card. Yhereafter difficulties arose between the applacant, other members of the Branch and the members of the Executive of the Branch. Arising from those difficulties the applicant commenced proceedings an the Supreme Court of New South Wales. Those proceedings were settled in a manner favourable to the applicant. On 28 April 1962 the applicant cbtained the rule nisi herein seeking a large number of orders pursuant to s.141 of the Act. On 16 2 PEING pene ADTPREAMETE TH eR Trott ee " er SSA OE RPE, TIT, OES v ~ - August 1982 the Court, constituted by Evatt J., refused to make certain interlocutory orders sought by the respondents. The rule nisi came on for hearing before the Court as presently constituted on 10 and 11 November 1982. During the course of the hearing, the parties presented a statement of agreed facts. In addition, a large number of affidavits were relied upon and a number of the deponents were cross-examined. In the result, it is not necessary to make findings on the large number of issues raised by the evidence. The proceedings can be determined on the matter of principle raised by the adoption, implementation and enforcement of the policy relating to O.K. Cards. Nevertheless, it 1s necessary to set out a number of matters before turning to the general principles of law to be applied. The applicant is a member of the Union and obtained the rule nisi pursuant to s.141(1) of the Act. Under s.141(1G): "" 2 , 5 An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules." Each of the respondents is a menber of the Union and is a person holding or who has held office in the Branch. PoE SBN TE REET Re NANI AZ ET bet TEE Me ak RE TEEN AT AEM Ee Gots Pay gem NY . ar > aoe te h ~ om - = ~ 10 - Each of the respondents is a person who 1S under an obligation to perform or observe the rules of the Union and of the Branch. The respondents asserted that the CK Card policy is a rational systen of allocation of work between members of the Branch. They admit the policy or system had been operated pursuant to the old Branch rules 7 and 10 and that since August 1977, the policy or system has been administered pursuant to the policy adopted at the mass meeting on 23 August 1977 snd has been applied by the Branch, its officers and members. In Septenber 1982, a meeting of the full time officers of the Branch prepared the following resolution for consideration by a meeting of delegatges of the Branch, namely: P.K.I.U. DELEGATES NEETING PROPOSED RESOLUTION ON THE DEFENCE OF \ UNION POLICLES We again reiterate our intention to uphold all Branch policies which have been the strength and protection for all members, in particular our ''O.K.' card policy and cali upon all members to maintain vigilance and full compliance in regard to new employees having obtained an ©.K. card prior to commencing employment. We indicate to those members who would seek to destroy the O.K. card, that no decision made outside the decision making areas of the P.K.1I.U. wall be allowed to succeed. wer tee ange set agart~ . SR TT te rE ee tremens ate mere, tom RTP SENT DR LDET SPR NT FELT ME han SE DS CNTR ae "OE moet he -ll- We call upon all members presently party to such actions, to cease such individual moves which can do nothing to further the interests of the full P.K.I.U. membership. We call upon John Dugmore, as a menber of the P.K.I.U., to withdraw his action against the Union and his fellow members, and recognise that his continuance to do otherwise will be seen by the majority of his fellow members as supportive and in the interests of those parties whose objectives are contrary to the P.K.I.U." On 22 September 1982, that resolution was endorsed by approximately 150 delegates of the Branch from metropolitan shops. On 29 September the resolution was endorsed at a meeting attended by some 1,500 members of the Branch. There are some 20,6000 members of the Branch. A reference to the relevant minutes of Executive meetings illustrates that the policy 1s being amplemented at the present time and illustrates how that policy is implemented. By the rule nisi, the applicant sought detailed orders restraining the respondents from doing or refraining from doing anything resulting in "any statement or representation" of the fact that the OK Card system was being implemented or enforced by the Executive of the Branch. The applicant relied upon an alleged implied rule of the Branch that the members and officers of the Branch would not engage un conduct giving effect to the OK Card system, the implied rule arising fron the fact that the Australian Industrial Court had declared that the old Branch rules 7 and 10 tet wee ay > Stare Tamers We Re ee erin BOLT Ear nh SE CLAS Cae ee, mt pe Tem ra ee alee Ee - contravened s.140(1) of the Act. Support for the view that the Court would give directions for the observance of an implied rule was sought by reference to passages appearing in the judgment given in Gordon v. Carroll (1977) 27 F.L.R. 129. It as doubtful whether that case is authority for the proposition relied upon. In any event, there are great difficulties in accepting the concept of amplied rules for the purpose of orders and directions being made and given under s.141 of the Act. Under the Act, the affairs of an organization are to be regulated by rules making provision for the matters specified in Reg. 115 of the Conciliation and Brbitration Regulations, s.132 of the Act. In addition the rules must make provision for the matters specified in s.133 and s.133A of the Act. See also s.134 of the Act. Section 140 contains specific requirements as to rules of organizations. Under s.139(4) any alteration to the rules of an organization to which the consent of the Industrial Registrar is not required, do not have effect until, inter alia, the Registrar has certified that: +». in his opinion, the alteration complies with and 1s not contrary to the provisions of this Act, of the regulations or of an award and is not othervise contrary to law and has been made in accordance with the relevant procedures laid down by the rules of the organization." In these circumstances, there 1s much to be said for the view that the rules referred to in s.141 of the Act tights apes pert er seuss Sone mene se aN ee en must mean the rules of an organization which were an operation at the time the organization was first registered pursuant to the Act and as altered in accordance with s.139 of the Act. This view 1s supported by s.157 of the Act. See also McLeish v. Faure (1979) 40 F.L.R. 462. If this view 1s correct, there 1s no basis for the contentions made on behalf of the applicant. In the present case, the Court proceeds on the basis that the rules of the Union and of the Branch are those which were tendered 1n evidence being the rules appearing in the copies of the Rules certified under s.157 of the Act. In this case, it 18 not necessary to make any detailed examination of the rules of the Union or of the Branch. It is sufficient to say that the rules of the Branch meke provision for officers and for a committee of management. The respondents come within those classes of members of the Branch. The Branch rules make provision for meetings of the Branch, Branch rule 26. No provision is made for mass meetings of menbers, but for present purposes the Court is prepared to assume that the mass meetings of members of the Branch already referred to were meetings of the Lranch validly convened in accordance with the Branch rules. The Cxecutive 1s subject to the direction of members in general meeting, Branch rule 28(h). In any event, the members of the Executive take the view that the mass meeting of members held 2 TREADS EIRP LEE SEIT YEN TE ETO ETE ON RARE Ais Se cone ese aM See SY . Pt eT erm Seg et rae oF ogee Tent Ye RE ER ETN Te, META ee - 14 - on 23 August 1977 adopted a policy which was endorsed by the Executive and since then they have been bound by that policy and are required to implement and enforce that policy. In further support of their actions, the respondents rely upon Branch rule 51 which empowers the Executive or a general meeting to punish any menber of the Branch proved to have been guilty of: "(g) Refusing to abide by the Rules of the Union or Branch; (h) Refusing to abide by and give effect to such resolutions as may from time to time be made by the Executive or the Council of the Union or the Eranch Executive or by members in general meeting assembled, as the case may be." The respondents contend that the enforcenent of the O.K. Card policy or system 1s justified by Branch rule 51(h)- For the purposes of these proceedings the Court 1s prepared to accept the views expressed and proceed on the basis that since August 1977 the respondents have implemented and enforced the O.K. Card system subject to a reduction in the number of enforcement proceedings under Branch rule 51(h). In these circumstances the issve for decision 1s whether the resolution passed at the mass mceting on 23 August 1977, endorsed as it was by the Executive, 1S valid. In other words, 1s that resoluticn authorized by the rules of the Union or of the Branch, either expressly or by implication? tee per ayy adh 2 eye aet Be a ' a Te RETA ME cue FEM ete mE ae 8 -15 - There 1s no doubt that orders and directions can be made and given under s.141 of the Act to forbid acts which, if undertaken, would not be authorized by the rules of the organization, The Queen v. Joske; Ex parte Shop Distributive and Allied Employees Association (1976) 135 C.L.R. 194 per Stephen J. at p.207-8 and Mason and Murphy JJ. at p.212-3, and R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 C.L.R. 141 per Lathan C.J. at pp.156-7, Starke Jd. at p.160, Dixon J. at p.163 and p.170 and McTiernan J. at p.174. In the present case the respondents are relying upon the validity of the resolution passed at the mass meeting of members held on 23 August 1977. If that resolution in fact 1s invalid and of no effect in that it 1s not authorized by the rules of the Union or of the Branch, the Court could make an order under s.14](1G) of the Act giving directions that each of the respondents 'perform and observe the rveles of the Union and of the Branch by treating that resolution as being null and void and of no effect. If such an order is made, the respondents would be required to cease to implement and enforce the O.k. Card system within the Branch. The guestion of the validity of the resolution is to be determined by the application of the principles DESO RE aT TOT LEME RL 2 A A pe ETE ie era fe Bere, ST we tr De pe eee TTI ay LT OTT, LATE SMP IT ee te expressed by Fullagar J. in Williams v. Hursey (1959) 103 C.L.R. 30. In the present case the power of the members of the Branch to adopt the resolution as determining policy, must be found in the rules of the Union or of the Branch. The power may arise from express rules or by implication. Generally see Fullagar J. at p.56. The Union rules contain express provisions enabling Branches to make rules for the implementation and enforcement of the O.K. Card system. The Branch rules do not contain any rules empowering the Eranch to give effect to the Federal rule. This, however, 1s not the end of the matter. It is necessary to look at the objects of the Union and of the Branch and the povers by which those objects are to be achieved. Fullagar J. at pp.56-8 said: "It is true that neither the federal rules nor the branch rules contain any specific reference, direct or indirect, either to the making of contributrons to the funds of a political party or to the making of levies on members for that purpose. But this, in ny opinion, is very far from being conclusive. When we look at the federal and branch rules, we find that (as in the case of so many trading companies) the draftsman has not fully observed the distinction pointed out by Lord Wrenbury in Cotman v. Brougham (Ci9183 A.C. 514) between 'objects' and 'powers to be exercised in effecting the objects' ((1918) A.C., at p.522). what 1s, however, unquestionably the central and dominant 'object' of the organization and of the branch is stated 1n terms which are at once wide and clear. Federal r.2 'Constitution' provides that: 'he purpose of the Organization 1s to ae BR Oe rte RE IT DET PET ge ne an RT STEP NTT i SSP a OS ead CRE a ge OE TS IE Dry combine in one body all persons engaged in the loading discharging and coaling of vessels in order that their interests may be protected, their status raised, and their conditions amproved'. Branch r.2 1s in identical terms. Federal r.3(a) states as an 'object' of the Organization 'by all lawful means ... to foster the best interests Of thé members of the Organization', and Branch r.3{a) is an similar terms. Federal r.3(0) states as an 'object' what is really a means - 'to raise funds for the furtherance of the aforesaid objects', and r.3(1) of the Branch Rules states as an object of the branch 'to impose levies ... in order to carry out the objects of the Branch'. Both the federal rules and the branch rules contain other general references to 'levies' (e.g. branch r.23, which has already been mentioned) but these do not carry the matter further beyond making it clear that the imposition by the governin body of a 'levy' on members is the metho contemplated of raising, for the general or special purposes of the federation and the branch, funds over and above what will be provided by the ordinary annual contribution er subscription. When the rules use, in stating 'objects', such general expressions as 'the interests of members' and the 'improvement of the conditions of nembers', they must, of course be read as referring to the interests of members as waterside workers and to the improvement of the conditions under which they work (as to wages, hours, privileges, amenities, etc.). But, subject to that, no prima facie reason exists for limiting the meaning of such expressions in any way, and any action which can fairly and reasonably be regarded as likely to further the anterests of the organization and its members 1s within the objects stated in the rules, and therefore within the powers of the federation acting directly or through the branch. Yo adapt slightly the words of Lord Selborne ain Attorney-General v. Great Eastern Railway Co. ((1680) 5 A.C. 473) *... whatever may fairly be regarded as incidental to, or consequential upon, what is expressly authorized ought not (unless expressl prohibited) to be held by judicia construction to be ultra vires' ((1880) 5 A.C., at p.478). And it seems to me to be undeniable (nor do I think that evidence is required to establish 1t) that the governing A - : 7 wt eats - ge At " asem o~ - body and the members of the federation or of a branch might, without exceeding the bounds of relevance which are read into such powers, thank that the result of a State election was a matter of very real and practical importance to them - that it was very definitely in their interest that the Labor Party should have a majority in Parlianent and should administer the government of the State, or at least should be as strongly represented in Parliament as possible. 1f this 1S so, it 1s within the objects of the federation or a branch to take practical steps to assist the cempaign of the Labor Party, and it may exercise any of its powers - including the power to impose a levy - to that end." That passage 1s of importance in the present case and applies, with necessary adaptions, to the facts of the present case. Many of the comments contained in that passage and made with respect to the rules of the Waterside horkers' Tederation apply with equal force with respect of the rules of the Union in the present case. Union rule 3 contains many paragraphs of what are said to be the objects of the Union. Many of them in reality are powers. The central and dominant object of the Union is to organize persons engaged as employees in the printing and kindred industries and to improve their conditions, particularly industrial conditions. Likewise, many of the stated objects are in reality statements of the powers by which the true objects are sought to be effected. Objects in similar form are set out in Branch rule 3. In particular, in each of Union rule 3 and Branch rule 3 the following objects are set out: coffe ae sree age, Sener aemmeree recs sare tte a ag ye? hate ren ee ictal PEIN I PE eR Se a, BO RINT PES ET PASTE Re N eet Ne be ratte OE EDEN Ci Siar eee - _ ' -19 - "(6) To assist and support any scheme calculated to benefit the employees of the Printing and Kindred Industies or any process appertaining thereto. (8) To protect the Industrial, Economic or Financial welfare of the members." Before dealing with the contentions raised in the present case, it is useful to make further reference to Williams v. Hursey, supra. It 1s important that the concept of organizations is clearly understood. At pp.66-68 Fullagar J. discusses aspects of that concept. Although in the context of that case the discussion vas directed to a specific issue, the discussion 1s of equal relevance to the present case. The concept must be understood in order to decide whether the resolution adopted by the mass meeting 1s valid or not. The following extract from the passage referred to (at p.67) allustrates the essential nature of the concept of an organization: "What the Commonwealth Act does, then, is to give legal personality to every organization registered under 1t, and to the personality so given are attached certain powers. In other words, the capacity of the new 'person' is defined indirectly by the Commonwealth Act. It is defined directly by the rules of the organization, which are registered when the organization itself is registered, and which then derive their authority from the Act. 1f the registered rules, on their true construction, enpower the organization, as I think they do in the present case, to make a levy for the assistance of a political party, then that power must be regarded as derived from the Act. The Act and the Regulations oa . cyte ew parier te - Be TEE TA ET tre Meg ARE VECO COT NN UN DERE TET -~ 20 - expressly permit the rules of the organization to provide for 'any other matter not contrary to law'. Whatever may be the scope of the words 'not contrary to law', it is clear that it is not, and never was, contrary to law or forbidden by law that any person should engage in political activities. It would be absurd to suggest that such activaties were illegal in themselves." In Williams v. Hursey Fullagar J. considered at length the question of whether the policy adopted by the Federation in that case was unlawful or not. No such lengthy consideration is required in the present case. It 1s true that the two objects of the Union and of the Branch set out above are wide and should not be given any limited or restricted meaning. it is true also that it 1s a matter for the Union and the Branch to adopt policies and give effect to those policies. It 1S not a matter for the Court to consider whether a particular policy 1s good or bad or 1s in the best interests of the Union. Those are matters for the organization itself. In the present case the old Branch rules 7 aénd 10 gave express power to the Branch to implement and enforce the O.K. Card system. The Australian Industrial Court ain Clark's case decided that those two rules contravened S.140(1) of the Act. I accept that decision. In those circumstances it is clear that the Union and the Branch cannot do indirectly by resolution what they cannot do tree fewaes! ' ' 4 - 21 - directly by rules. The resolution adopted at the mass meeting held on 23 August 1977 rejected the judgment of the Australian Industrial Court and adopted the necessity "to maintain the strictest adherence to continuing the use and issue of our O.K. Card". In those circumstances the policy must be contrary to law. It would be absurd to hold that despite the judgment of the Australian Industrial Court, the Branch and its members could continue to implement and enforce a policy which was contrary to the provisions of the Act. Accordingly, 2n my opinion, the resolution adopted at that mass meeting is null and void and of no effect. it follows that the respondents, in implementing and enforcing the policy expressed in that resolution, are acting contrary to the provisions of the rules of the Union and of the Branch un that they are giving effect to a policy which as null and void and of no effect. Accordingly, in the absence of any other considerations appropriate orders should be made under s.141(1G) of the Act directing the respondents to perform and observe the rules of the Branch. Counsel for the respondents contended that as a matter of discretion, the Court should refrain from making any such order. He referred to the fact that the applicant had got another job and had not been disciplined by the Branch, that he was proceeding with the seeking of the FIREMEN Er "HEL + eS ot ~ 22 - particular orders set out in the rule nisi, that the terms of settlenent Supreme Court proceedings protected his rights, that there had been long delay in bringing the proceedings in the Federal Court and that prior to his retrenchment the applicant had supported the O.K. Card policy and that there had been no letter of demand prior to the rule nisi being obtained. He contended further that the policy was one which was logical and could be supported on logical grounds, was in fact supported by a very large number of members of the Branch, was in the best interests of the members and was for their general benefit. The Court does not and should not express any view on whether the policy 1s in the best interests of the members of the Branch. In addition, counsel contended that the respondents had acted bona fide and had implenented the policy with discretion and flexibility having regard to the dafficulties within the industry. He relied also upon the particular facts relating to the applicant's employment with Assocrated Lithoscans. On the asumption that the Court has a discretion to refrain from making an order under s.141(1G) of the Act where an applicant has made out a case, nevertheless I would not exercise that discretion in favour of the respondents. 'The applicant has brought this matter before the Court. The conduct of the respondents 1s contrary to the rules of the OO treme 7 3 - 23 ~ Union and of the Branch. 'lhe adoption of the policy 1S in blatent defirance of the judyuent of the Australian Industrial Court. It cannot be counternanced. Orders should be made. In all the circumstances of the case, the Court proposes to make orders under s.141(1G) of the Act, but having regard to observations made during the course of the hearing, it 1s appropriate that the Court publishes its reasons for judgment and then adyjourns the hearing of the proceedings to enable submissions to be made es to the form of orders to be made. Accordingly, the Court directs that the applicant prepares minutes of the proposed order and adjourns the further hearing of this matter to a date to be faxed. I certity that thi3 and tho twenty-three (3) prececing 14ge3 are a true copy of the Rease' 5 f-> Judgement hereinof the Honourable Mr Justice Northrop. Dok 1 lhsen © Associate Dated: 17 December 1982. -—— Te ST OT te ee ne ines, Pawan oe Se + ete - [ere IR Eee ee ~ pours = ee a ae AS a ee tee SSS TR gee Pa epee oe Tee SIS me TS