se a rn ets pen a enn - ——— - mn - - = CATCHWORDS Industrial Law - Reference by Industrial Registrar - Whether union rules prohibit member from nominating for election — Whether a member becomes unfinancial if payment of his union dues is wrongly refused. Conciliation and Arbitration Act 1904 (C'th) s.140(1)(c), s.159(4), s.165(4). IN THE MATTER of the Conciliation and Arbitration Act 1904 AND _IN THE MATTER of an application by Laurence Francis Howard for an inquiry into an election in the Slaters, Tilers and Roofing Industry Union of Victoria AND IN THE MATTER of a reference of such application by the . Industrial Registrar to the Federal Court of Australia CORAM: Keely J. 5 May, 1983 Melbourne a ae Se eee "Catetentnee tata ert Anite lee Melia eee tee been tae IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY } V No. 12 of 1983 } ) INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 - AND IN THE MATTER of an Application by Laurence Francis Howard for an inquiry into an election in the Slaters, Tilers and Roofing Industry Union of Victoria AND IN THE MATTER of a reference of such application by the Industrial Registrar to the Federal Court of Australia 5 MAY, 1983 KEELY J. REASONS FOR JUDGMENT This is an application under s. 159 of the Conciliation and Arbitration Act 1904 (the Act) for an inquiry by the Court into an irregularity in or in connection with an election for the office of secretary of the Slaters, Tilers and Roofing Industry Union of Victoria (the union), which is an organization of employees registered under the provisions of the Act. The application has been referred to the Court by the Industrial Registrar under s. 159({4) of the Act. The returning officer, Michael Edward Small, an officer of the Australian Electoral Office, was conducting the election as a result of a request wee ene ee Oe a ne Ne EY me es ne eel net tte AR ee e Mile bt O e made under s. 170 of the Act. -He rejected a nomination lodged by Laurence Francis Howard (the applicant) on the ground that, on the day on which that nomination was lodged (8 March, 1983), "the applicant was not eligible to nominate because he had "failed to pay the subscriptions prescribed by the rules of the union". It was common ground that the applicant was a financial member for the period of twelve months ending on 31 March, 1982. The case for the applicant was that he had attempted to pay the appropriate dues to the respondent Jackson, the secretary of the union, in March 1982 and on a number of other occasions between April 1982 and 23 February, 1983 and that the respondent Jackson had refused to accept the payments. His evidence on this aspect was supported by his wife, by Mr. Colbron, and also, as to one occasion in February 1983 on which the dues were offered, by Mr. Edwards. The respondent Jackson expressly denied that there had been a tender of the amounts due at any time between March 1982 and 23 February, 1983. He expressly denied on oath that he had at any time seen the applicant between a date in December 1981 and 23 February, 1983 but said that he had spoken to the applicant when the latter telephoned him at the union office on 14 February, 1983. Mr. Jackson's evidence was supported by the evidence of Ms. Karen Pachler, who worked as a secretary in the union office, and by Mr. K.G. Burslem, the acting assistant secretary of the union. fn tn ene ee eee a kk Meee = reenter seme emery eater ee enrN mm, oe —_——-. ————— ee, an eee wae ee ee eee ee ee et te ee ee I have considered the evidence carefully both during the hearing and by subsequently reading the transcript of that evidence. Mrs. Howard was a most impressive witness. Her evidence based on her personal knowledge rélated to two visits to the union office in November 1982 and one in January 1983. She gave evidence that on one occasion in November 1982 the respondent Jackson refused to accept the applicant's union dues and that Ms. Pachler who was then asked by the applicant to take the money said there was nothing she could do. Mrs. Howard then said (in the union office) "it is unbelievable". She explained to the Court that she had attended the union office with her husband because she "did not believe they would refuse to take his money. I could not understand it". She gave evidence that on the later occasion in November 1982 Ms. Pachler, on being told that the applicant wanted to pay his union dues "went into Mr. Jackson's office and came out and said I have been instructed not to take money off you". Mrs. Howard also gave evidence in cross-examination that her husband was annoyed at the refusal to accept his dues "because it was preventing him . from gaining employment". Having heard Mrs. Howard cross-examined I have no hesitation whatever in accepting her evidence as being both truthful and accurate. Mr. Files was aiso an impressive witness as to the matters with which he was able to deal. I also accept the evidence of the applicant and of Mr. Colbron and Mr. Davies as to all matters of substance dealt with by them although the rm en ee eee Amir me Cone Log i re Pls ad AA tele enn le tl Ni a et ee Lire wet oe A an we we RT ee en ee oe ae mn. eens te eee er Ee ee ee me ee ee ee ee ee ee ee et applicant and Mr. Colbron had difficulty in remembering the detail of some conversations. Mr. H.L. Lycett gave evidence on behalf of the respondent Jackson and the respondent union and did so to the best of his recollection and belief. I make no criticism of his evidence. However, as to the other evidence in the case, the conflict is so fundamental that it is not capable of being reconciled on the basis of honest mistake or defective memory on the part of the witnesses. I have no doubt that the respondent Jackson and his witnesses K.G. Burslem and Ms. K. Pachler were deliberately telling lies on oath in an endeavour to cover up Mr. Jackson's appalling conduct. Over a period of eleven months he deliberately refused to accept Mr. Howard's union dues. In so doing he breached his trust as secretary. He also arrogantly told Mr. Howard to get out of the union office and he made statements about Mr. Howard at union meetings which were not true. In December, 1981 when an election was being held Mr. Howard sent to union members an open letter which strongly criticized Mr. Jackson. It included the statement that "We need a strong, intelligent Union leader G 2 1 to support us in our efforts. Therefore that elimnates George A Jackson.". Doubtless Mr. Jackson was greatly upset by that circular letter ~ although in the witness box he simply said ~~ ome —_———-— ia a! tee ee a ene « a ee ae eae re ae en me - weer - weer es me ee ee ee eee ee od ~ ee ee wr ee Le that he was "disappointed" in Mr. Howard. That circular letter may explain why Mr. Jackson acted with such malice towards Mr. Howard but it cannot possibly justify his conduct. One question to be considered is when did the respondent Jackson first refuse to accept the union dues tendered by the applicant. The applicant in his evidence was uncertain. He said "roughly April, May; early May, roughly April" and then said "it would not be long after they were due, anyway" (i.e. not long after 1 April, 1982). The applicant's affidavit, delivered to the returning officer (exhibit C), said that he tendered his dues to the respondent Jackson "in or about the month of April 1982". On the other hand his application to this Court, verified by his statutory declaration, stated that the respondent Jackson refused to accept his tender of the union dues "in or about the month of March, 1982". The applicant obviously had no clear recollection as to the month in which his first attempt to pay the union dues occurred and when first asked as to that question said "I will have to say approximately because I have been there on numerous occasions ...". Had this question of fact - as to the month when the respondent Jackson first refused to accept the dues - depended solely upon the applicant's evidence, I would not have been satisfied that that refusal had occurred before 1 April, 1982. However, there was evidence by Mrs. Howard that the refusal to accept Mr. Howard's fees began in March 1982. That ates er nr en et A Re Nt ee ene FN tr pee ee evidence was doubtless based on what she had been told by her husband (the applicant) but it was given during cross-examination by Mr. Larkins, of counsel, on behalf of the respondent Jackson, and was given in a corivincing manner. Of course Mr. Larkins could not put to her that the first refusal to accept Mr. Howard's dues occurred during some other month - because the respondents' case was that no such tender of the union dues by Mr. Howard ever occurred. However, he did not suggest that she might be mistaken in saying that it had occurred in March 1982 as distinct from April, May or some other month. Both in cross-examination and in re-examination Mrs. Howard said that the first refusal by the respondent Jackson to accept the union dues occurred some time in March 1982. She also said that it occurred before her hospitalization and she had earlier given evidence that she was in hospital for three and three-quarter months of the four months from April to late July 1982. Mrs. Howard's evidence on this aspect gained support from the 'evidence of Mr. Colbron who said that he was present when the respondent Jackson gave "a definite refusal" to the applicant's attempt to pay his dues and that that event "would havé been about March" 1982. Under cross-examination, Mr, Colbron said "it was around about February March" 1982. At a later stage in his cross~examination he said "it was either February or March, late February or March". ee ee err G a ce er a ar ne eae et . "¢ se Having considered the evidence of Mrs. Howard and of Mr. Colbron I am satisfied that the first refusal by the respondent Jackson to accept the union dues tendered by Mr. Howard took place in March 1982. On the evidence I have made the following findings of At the union office in March 1982 the applicant attempted to pay the appropriate union dues and the respondent Jackson refused to accept the payment. The applicant unsuccessfully attempted to pay the union dues at the union office on a number of occasions during the period from April to July 1982. The applicant also attempted without success to pay his union dues on a number of other occasions including two occasions in November 1982, one occasion in January 1983 and two occasions in February 1983. , Mr. Colbron at the union office on 29 October 1982 raised the question of himself paying the applicant's union dues but the respondent Jackson refused to even consider allowing Mr. Colbron to do so. . Mr. P.R.A. Gray, of counsel, on behalf of the applicant submitted that the respondent returning officer should not have rejected the applicant's nomination. He submitted that the applicant was a financial member of the union and was not A rr a ee ren, io Ay — a NX a eee rendered ineligible to nominate by reason of the registered rules of the union. Rule 14(d) provided that : "14. Election of Officers and Committee of Management (d) no member shall be eligible to nominate for any position on the Committee of Management unless he has been a financial member of the Union for a period of twelve consecutive months immediately prior to the date of nomination and is a financial member at the date of nomination. Mr. Gray accepted that the office of secretary is a position ' on the committee of management within the meaning of this rule. : Oe erie Rule 7 included the following provisions : "7. Entrance Fees, Subscriptions {e) Subscriptions shall be payable in advance in - . two equal half-yearly instalments. The first instalment shall be due and payable on the first day of April and the second instalment shall be due and payable on the first day of October of each year provided that unless the Committee of Management otherwise directs :- ~ (ii) A member who pays his yearly subscription in advance on or before the 14th day of April shall receive a rebate of $10.00 from his subscription. ee a ae cect Ne ee cet rd ated ee wth on So re a rt ene ine ere re ema mone a Oa AR ARN AA A, AS NE en en eee ee en a ae Se ee a Co ae - ee ee ee me ee ee eee Lees ete ee me Une nae ene SOT, ame (iii)A member who pays his half-yearly instalment of his subscription in advance on or before the 14th day of April shall receive a rebate of $2.00 from his half~-yearly instalment. (iv) A member who pays his half-yearly instalment of his subscription in advance on or before the 14th day of October shall receive a rebate of $2.00 from his half-yearly instalment. Subject to sub-clause (e) of this Rule a member who had not paid the respective instalments of his annual subscription on or before the dates on which such instalments are payable shall be deemed unfinancial from the first day of the financial year until such instalments are paid. Rule 9 read as follows : "9, (a) (b) Unfinancial Members Any member who fails to pay any fees, subscriptions, fines or levies as prescribed by the rules shall be deemed to be unfinancial until all such entrance fees, subscriptions, fines or levies have been paid. Any member deemed unfinancial shall for the period he is deemed unfinancial lose all privileges of membership, shall not be entitled to participate in any ballot or election and shall not be entitled to any financial assistance or benefits from the Union and shall be liable to be sued for his arrears without notice." MT ey pre eeree nntee arener e e o eee eee eee sate ee — oe ae tae te ee — — — a ee ee ee 10. I adopt with respect the dictum of Smithers J. in Lovell, O'Grady & James v Federated Liquor and Allied Industries Employees' Union of Australia (1978) 22 A.L.R. 704 at 732 that "... a rule Laying down restrictions on the right to stand for office .. ought to be read as imposing only those restrictions which are unambiguously or at least clearly imposed." In my opinion the rules, construed in their context, do not disclose an intention to prohibit from nominating for any position on the committee of management all those members who were unfinancial at any time during the "twelve consecutive months immediately prior to the date of nomination", notwithstanding that they had later paid their union dues in full and were financial members at the time at which they sought to nominate. It will be seen that the provisions of rule 7(e)(ii), (iii) and (iv) each provide for a "rebate" for payment o£ subscriptions by the 14th day of April or October. It would be strange if a member paying his dues during the first fourteen days of those months earned a rebate but was rendered ineligible to nominate (r. 14(d)) by reason of paying at a time that entitled him to that rebate. Mr. Gray pointed out that, if the rules had such an effect, then, on the evidence in the present case as to the times when dues are normally paid, they would prevent some 75% of the members of the union from nominating for election to any 'X t ee rs re Seat A pS eM rym mr A Ee atte ll. position on the committee of management and submitted that if the rule had such an effect it would contravene s. 140(1)(c) of the Act. I do not find it necessary to rule upon the latter submission. In any event, in the present case I have found as a fact that the applicant attempted to pay his union dues in March 1982, and on later occasions, and that the respondent Jackson refused to accept those union dues on each of those occasions notwithstanding that he was under a duty as secretary to collect those union dues ({r. 22{a)(ii)). Dr. Jessup, of counsel, on behalf of the returning officer, and Mr. Larkins both submitted that, where the secretary of the union has wrongly and in breach of the rules refused to accept the union dues offered by a member, the member is not a financial member of the union. Mr. Gray submitted that such a member, and the applicant in the present case, became financial by virtue of his tender of the dues or alternatively became financial by his offer to pay the dues coupled with the secretary's action in declining to perform his duty to collect them. Mr. Gray accepted however that the secretary's earlier refusal to accept the dues did not entitle the applicant to contend that he was no longer required to pay the dues. At the commencement of the present hearing the ssecretary was still wrongly and in breach of the rules refusing to accept the applicant's union dues and, in that sense, the applicant could F Te npr wane mete ee enpemenates we meee eee me ee pm ae ner ere ee a ee ne E - arene ee aera he ane tt ct A ee a et ee ee eo 12. be said to be not a financial member of the union - by reason of the secretary's wrongful refusal of the dues and without any fault of the applicant. In my opinion the rules plainly do not intend that the applicant should be "deemed to be unfinancial" (r. 9(a)) or "deemed unfinancial" (r. 7(h)) in those circumstances. It is true that r. 9(a) uses the words "member who fails to pay" and that r. 7(h) uses the words "member who has not paid". However, notwithstanding the difference in the wording in the two rules, in my opinion, read together and in context they cannot fairly be construed as resulting in a member being deemed to be unfinancial where, as in the present case, he has offered his union dues to the secretary at the union office and the secretary has refused to accept the payment. If r. 7h), properly construed, had such an effect then, in my opinion, it would contravene s. 140(1)(c) of the Act in that it would impose upon members of the union conditions, obligations and restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act are oppressive, unreasonable and unjust. Nor does r. 14(d) on its proper construction, in my opinion, operate to take away a member's eligibility to nominate for a position on the committee of management in circumstances where he has tendered the appropriate amount of union dues and the secretary has - eee rere aren pete. ~ oo sw nee _ ~ ——: oon Pty eo ee ne i ee re ee ee - 13. wrongfully refused to accept them. If rv. 14(da) had such an effect then, in my opinion, it also would contravene s. 140(1)(c) of the Act. For the foregoing reasons, in my opinion, the applicant was eligible to nominate for the position of secretary of the union and acccordingly the returning officer erred in rejecting his nomination dated 8 March, 1983. The rejection of the nomination constituted an irregularity in connection with the election. I am of the opinion that, having regard to that irregularity, the result of the election may be affected by irregularities (s. 165(4)). Accordingly, I shall make the following orders :- 1. An order declaring that a -step in connection with the election for the position of secretary of the Slaters, Tilers and Roofing Industry Union of Victoria, namely the rejection by the returning officer of the nomination of Laurence Francis Howard lodged on 8 March, 1983, is void. 26 » An order directing the Industrial Registrar to make arrangements for the uncompleted steps in the election to be taken, namely, the conduct of a ballot for the office of secretary in which ballot the andidates are Mr. George Edmund Jackson and Mr. Laurence Francis Howard. Mr. Gray submitted that the candidates should have approximately three weeks in which to conduct their campaigns F wt ene - - - + -- - -- - +e ee ee a ee ee ee a eg me ee eee eee before the opening of the ballot, that period being the time 2 s allowed by the returning officer in his original timetable of 14. | { ' | | | | t the election. No opposition to that suggestion was voiced by either Dr. Jessup or Mr. Larkins and presumably no order is required. However, I shall grant general liberty to apply to any party to these proceedings. ioe ne re rc oe iocsoe J % Totty ult preedin> igs Reasons tw Ful Henourcbie lor SPAR aN ITS AL le Ne denn MEI NTE Se WG Cat TT hs if years re eet ewe ins yl Le i Se" mp ts ae crt meee ee ee ee ee x occ wom ee St Te nn cee ee peer tn me ee BT ' t