re rm rt ae ner rt ree re re ere een er CATCHWORDS Industrial Law - Case Stated - Criminal Offence ~- Admissibility of agent's statements as admissions against principal — Validity of acts done in breach of rules - Whether invalid act can constitute offence -— Whether act of Branch is act of Organisatior - Meaning of "impose". Conciliation and Arbitration Act 1904 - ss. 121, 140(1)(a), 188, 191(1). Federal Court of Australia Act 1976 - s.25(6). dudiciary Act 1903 - s.78B. Commonwealth of Australia Constitution Act - ss. 51(xxxv), 51(xxxix). IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT. DESMOND LAWRENCE GLINEHAN (on behalf of the Industrial Relations Bureau) v. THE AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISTON OFFICERS). Vic. No. V7 and V8 of 1982. Fox, Lockhart and Fitzgerald JJ. 29 July 1983. cS KYO R&S Brisbane. I~ nos ey " . 3 IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) ) INDUSTRIAL DIVISTON ) Vic. No. V7 of 1982 Vic. No. V8 of 1982 IN THE MATTER of the CONCILIATION AND ARBITRATION AcT BETWEEN: DESMOND LAWRENCE LINEHAN (on behalf of the Industrial Relations Bureau) Prosecutor AND: THE AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISION OFFICERS) Defendant QRDER JUDGES = Fox, Lockhart and. Fitzgerald JJ. DATE OF ORDER: 29 July 1983 THE COURT ORDERS THAT: 1. The questions for separate decision by the Court he answered as follows: CN EE ero rene pyre FS 8 = ee eee eee ek Whether are 2. the letters, annexures "C", and ""D" admissible against the defendant organisation ag proof of the matters stated therein. — Yes. Whether it was established by evidence admissible against the defendant organisation -that the Queensland Branch Committee of Management of the defendant organisation on 21 April 1981 fined Michael David Bryant $10.00 for failing to stop work on 13 February 1981; - Yes. If yes, to (2)(a), whether that decision the Queensland Branch Committee of Management of the defendant organisation - (ii) was valid; - No was invalid by reason of paragraph _--77188(1)(e) and/or paragraph 140(1)(a) of (iii) (iv) the Act; - Yes, by reason of paragraph 188(1)(e) of the Act. was invalid otherwise than by reason of Paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act; - It is not necessary to answer this question. constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act. - Yes. If yes to (2)(b)(iv), whether the penalty imposed on Michael David Bryant by the Queensland Committee of Management of the defendant organisation on 21 April 1981 was imposed by reason of the circumstances that he failed to join in industrial action on. 13 February 1981 within the meaning of paragraph rr re er rn ar (3) 3. 188(1)(e) of the Act. - Yes. {a) Whether it was established by evidence admissible against the defendant organisation that. the Queensland Branch. Committee of Management of the defendant organisation on 21 April 1981 fined John Richard Thurecht $20.00 for failing to abide by a direction as a result of a resolution carried at a duly constituted meeting of members of the defendant organisationr in Toowoomba on 13 February 1981, that "This Meeting resolves not to return to work for the remainder of today and calls on all members not present to cease work for that period" and for failing to abide by a. direction of the Federal Committee of the defendant organisation that "All A.P.S.A. members are directed toa cease work from midnight the 23rd February -— midnight the 24th February 198L". - Yes. {b) If yes to (3)(a>}, whether that decision of the Queensland Branch Committee of Management of the defendant organisation - (fr) was valid; - No. (ii) was invalid by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the- Act; - Yes, by reason of paragraph 188(1)(e) of the Act. (iii) was invalid otherwise than by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act; - It is not necessary to answer this question. (iv) constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act. FI per OR ee Ne ee ee (4) (5) (6) — Yes. (c) If yes to (3)(b) (iv), whether the penalty imposed om John Richard Thurecht by the Queensland Committee of Management of the defendant organisation om 21 April 1981 was imposed by reason of the circumstances that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981 within the meaning of paragraph 188(1)(e) of the Act. - Yes.. Tf yes to (2)(c), did the defendant organisation by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $10.00 fine upon Michael David Bryant by' reason of the circumstance that he failed to join in industrial action on 13 February. 1981. - Yes. T£ yes to (3)(e), did the defendant organisation by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $20.00 fine upon John " Richard. Thurecht by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981. '— Yes. T&é no to (4) or to (5), is sub-section 188(4) of the Act - (a) a lawfor the peace order and good government of the Commonwealth of Australia with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State within the meaning of s.51(xexv) of the Constitution of the Commonwealth of Australia; Cb) a lawfor the peace order and good government of the Commonwealth of Australia TE RT RET TE TT NR eT OOS ET A = IN RO NETH I (7} (8) (9) 5. with respect to matters incidental to the execution of the power vested by the said s.51l(xxxv)* of the Constitution of the Commonwealth of Australia and the Parliament of the Commonwealth of Australia within the meaning of s.51l(xxxix) of the Constitution of the- Commonwealth of Australia; (c) otherwise a valid law of the Parliament of - the. Commonwealth of Australia under the Constitution of the- Commonwealth. of Australia. — This: question. does not arise. T£ yes to any of (6)(a), (6)(b), or (6)(c), is the defendant organisation deemed to have, on 21 April. 1981, imposed the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981. ~- This question does not arise. If yes to any of (6)(a), (6)(b), or (6)(c), is the defendant organisatiom deemed to have, on 2L April 1981, imposed the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that the said John Richard Thurecht failed to join in industrial action on 13 February 1981 and/or on 24 February 1981. - This question does not arise. Is the defendant organisation guilty of the offences charged or either and if so which of them. -~ This is a matter for determination by the trial Judge. ED IRIEL LE. PE LLL OIA AITO ERR ETT NA ER RN mt ~ _ ~~ er vee IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY INDUSTRIAL DIVISION Vic. No. V7 of 1982 Vic. No. V8 of 1987 wee IN THE MATTER of the CONCILIATION AND ARBITRATION ACT BETWEEN : _ DESMOND LAWRENCE LINEHAN (on behalf of the Industrial Relations Bureau) Prosecutor AND: THE AUSTRALIAN PUBLIC SERVICE ASSOCTATION (FOURTH DIVISTON OFFICERS } Defendant CORAM: FOX, LOCKHART and FITZGERALD JJ. REASONS FOR JUDGMENT FOX J. This is a special case stated by a Judge of the Court (Fitzgerald J.), sitting in the Industrial Division, under 5.25(6) of the Federal Court of Australia Act 1976. Some questions asked required decisions as to the constitutional ST EE ee I RET ETT EE I LE I BE, TO EAT EN AS NA RS YAR ast validity of certain provisions of the Conciliation and Arbitration Act 1904, and notices were given under s.78B of the Judiciary: Act to. the Attorney-General for the Commonwealth and to the Attorney-General for Victoria. The former appeared by counsel for the prosecutor (Desmond: Lawrence Linehan), and the latter indicated. that. he did not wish to be heard. The proceedings were instituted in the Victorian Registry of the Court, where the registered office of the Organisation is. In the event, Ido not find a decision of a constitutional nature to be: necessary. The facts, and. particulars of the stated case, as well as references to the relevant statutory provisions and rules of the Organisation are set. out in the judgments of Lockhart J. and Fitzgerald J. and I shall not repeat them. I agree with the answers proposed. by Lockhart J. and, in general, with his reasons... I shall content myself with setting out, in summary form, my reasons on the more significant matters. There are three principal questions. One is as to the admissibility against the Organisation of the letters of 22 April and 1 May. It. seems to me that the role of the Branch, and the Committee of Management. of the Branch, in relation to disciplinary matters, is such that its proper officer is a person entitled to admit the result of its proceedings in relation to those matters, and to admit these so as to bind the Organisation (see s.140(1)(d); rules 52, 53, 60, 76 of the Organisation's nr IT ae z TN ent rr ern = ) _ 7 WT SM SGN La PO te ee > OS LAE ar [ registered rules). Plainly, correspondence concerning those matters is properly initiated and received by the Branch Secretary, as is. shown by earlier correspondence stating the charges, which "was admitted without objection. The letters in question, as written, notified the addressees of the right of appeal to- the General Meeting. There is a question as to whether, for the purposes of this stated case, the letters should be regarded as admissions of notification of the. penalties to the addressees by the Secretary/Treasurer. It seems to me that ona fair reading of the stated case this; should. be the conclusion. The particular relevance of the question is whether, wher s.188(1)(e) uses the word "impose", this implies the need for notification. It seems to me that the imposition of a penalty does not normally require - either the sending or receipt of notification; but refers to the adjudicative act, and this creates the liability to pay the penalty. The context of s.188(1) reinforces this conclusion in the- present case.. The resolution, or decision, of the Committee of Management of the Branch, creates the liability. Notification is not required for this purpose. It is not to the point that, because of the invalidity of the resolution, the Organisation could not sue successfully in the present case (see rules 60(3) and 41(3)). The second principal question is whether there can be a breach of s.188(1)(e), notwithstanding the fact that. charges OT EO FE AR RP RF ETT PCLT RENE Le AY A NO LT COT REE IG ON NR Tt oat MBN Em EN common to both men were based ona failure to comply with a resolution or decision against working which was not binding under the rules, and, notwithstanding the Iack of power in the ' Committee for this and other reasons, to impose the fines. The lack of power flows from: (a} the direct application of s.188(1)(e); (b) the application of s.188(1l)(e) through s.140 of the Act; or (c) the ordinary construction of rule 76. In my view, none of these defects in power negatives the adjudicative act. The Committee formally and deliberately passed the resolutior the subject of the present charges under s.188(1) (e)-.. It purported to exercise a power, given to it in general terms, without any limitation. This remains an act cognizable: under the law, notwithstanding the lack of power (see Gower's Principles of Modern Company Law. 4th ed. (1979) pp.169-170). The next question is whether the Organisation is liable under s.188(1)(e) for what the Committee did. This is not the same question as that already dealt with relating to the admissibility of the letters against the Organisation, although mast considerations are common to both. Here the question is one of identity, for relevant purposes, between the Organisation and the Committee; whether the act of the Branch Committee can properly be regarded as the Act of the Organisation. It is my view that for disciplinary purposes affecting members, at the first instance level, the Organisation acts through its Branch Committees of Management (s.140(1)(d)¢- rule 76). The Organisation cannot im such.a case act except through the Branch. L amswer the questions asked, as they have been answered by Lockhart J. Ida not find it necessary to turn to s.188(4)(b). A Paragraph inthe same terms is found in s.144A(9). Section 188(4) does not in my view lead to an inference that in its absence the acts of the various. bodies or persons mentioned are not those of the Organisation. So far at least as para. (b) is concerned, I regard. it as being introduced for more abundant cautior, and perhaps to deal with cases not coming within common law. principles. Ite validity was. attacked as being beyond Commonwealth legislative power (see The Queern-v. Bowen and Others; Ex Parte The Amalgamated Metal Workers and Shipwrights' Union (1980) 144 C.L.R. 462; The Queen v. Sweeney and Another; Ex Parte Northwest Exports Pty. Limited (1981) 147 C.L.R. 259, 264, 273, 276), but, as I have indicated, I do not find it necessar id i tion. fo consider this question I certify that this and the four ( 4) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr: Justice ~ Nea PT? TRE TEN TI RR ee RS NI IIS SE IT PT —— 1 en SSS "IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) VIC. NO. V7 of 1982 ) ») VIC. NO. V8 of 1982 ) INDUSTRIAL, DIVISION - BETWEEN: DESMOND LAWRENCE" LINEHAN. : ". - oe (or behalf of the watt Industrial Relations. - : Bureau) Prosecutor AND: THE AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISION OFFICERS) Defendant CORAM: Fox, Lockhart and Fitzgerald JJ. 29 guLy 1983. REASONS FOR JUDGMENT LOCKHART J. This fis a Case stated by a single Judge: of this Court to the Full Court pursuant.to: sub-s. 25 (6) of the Federal Court of Australia Act 1976. The Stated. Case arises out of two prosecutions commenced om behalf of the Industrial Relations Bureau by Desmond Lawrence. Lineharr ("the Prosecutor") against the Australian Public Service Association (Fourth Division Officers) ("the Organization"). The charges are that, contrary to para. 188 (1) (e) of the Conciliation and Arbitration Act 1904 ("the Act") the Organization imposed. penalties by way of fine on two of its members, Michael David Grant and. John Richard Thurecht, in effect because they failed to join in. industrial action in attending work when their fellow workers failed to attend for work. sl Gn ae es aR Bt le 2 Oe alia ee - senegake-Seeeieneme seems The Stated Case includes the following statements relevant to the questions raised: for our consideration:~ "TL The Australian. Public Service Association (Fourth Division Officers) ("the Organization"), is and was. at all material times arr organization of employees registered pursuant to' the Coriciliation and Arbitration Act 1904. ("the Act"). « wee 3. At all. material times, each of Michael David Bryant and John Richard Thurecht was: (a) employed by the Commonwealth of Australia in the Department of Defence at No. 7 Stores Depot, North Drayton, Toowoomba. in the State of Queensland; and (b) a@ member of the Organization. 4. Orr 13 February 1981 meetings of persons who were members of either the Organization or the Administrative. and Clerical Officers' Association, Australian Public Service teok place at. various. centres in Australia including Toowoomba... S. The. meeting which took place at. Toowoomba on 13 February 1981 was neither a general meeting of the members of the Organization nor a general meeting of the members. of the Queensland Branch of the defendant Organization. 6. Neither the Federal Secretary/Treasurer of the Organization nor the Secretary/Treasurer of its Queensland Branch was present at the meeting at Toowoomba or I3 February 1981. 7. As a result of a decision taken at the meeting at Toowoomba orn 13 February 1981 some persons, including some members of the Organization employed by the Commonwealth of Australia in the Department of Defence at No. 7 Stores Depot, North Drayton, Toowoomba, stopped work on that day without the authority of their employer, prior to the time at which they were entitled to do sc. 8.. Neither Mr Bryant nor Mr Thurecht attended the meeting at Toowoomba. on 13 February 1981 and each continued to work on that day until excused by: his employer. rr rn rn er EE NEY AE I SANG A AE ETT Te I ETOP EI YR TR I ht = "2 9L (a) Prior to 24 February 1981, the Federal Secretary/Treasurer of the Organization directed its members not to attend for work. on. 24 February 1981. (b) The members of the Federal Committee: of the Organizatior were unanimous that the members of the Organization should be so directed by the Federal -Secretary/Treasurer. (c) Prior ta the direction being given, the - Federal Secretary/Treasurer of the Organization was separately informed by each. of the other members of the Federal Committee of the Organization that he or she agreed to the direction being giver. (d) No resolution was passed at a meeting of the Federal Committee of the Organization that its members should be so directed by its: Federal. Secretary/Treasurer. 10. On 24 February 1981, some members of the Organization failed or refused to attend for work. without the authority of their respective employers. Il. Om 24 February 1981 Mr Bryant was on leave. Orr that 'day Mr Thurecht attended. work and performed his normal duties. 12. A. letter dated 8 April 1981 was written to each of Mr Bryant and Mr Thurecht by the Secretary/Treasurer of the Queensland Branch of the: Organization. The letter to. Mr Bryant. is annexure "B". The letter to Mr Thurecht was: in identical terms.. The letters were admitted into evidence without: objection from the Organization." The letter is. in: the following: terms:— "IT have been requested by your fellow workmates to officially charge you under the Rules of this Association for failing to abide bya direction as a result of a resolution carried. at a duly constituted meeting of A.P.S.A. members in Toowoomba on the 13th of February 1981 at 12.30 pm. That resolution being as follows - 'This meeting: resolves not to return to work for the remainder of today and calis on all members not present to cease work for: that period.' EE RT OT ae a = = ey re ee a ae ee Ne ee rp Tae a ee r aan A.P.5.A. members who were not present at. that meeting of the 13th of February 1981 were duly notified of the decision, which you failed to abide by. Also you are officially charged for failings to abide by a direction of the - Federal. Committee... That direction. being. - 'AIL A.P.S.A. members are directed to cease work from nidnight the 23rd. of February — midnight . the. 24th of February 1981..' Tt has been' reported that you did infact (sic) report for duty on this day with the. full knowledge of the above direction. You are therfore: (sic) formally charged - with failing. 'to comply with a decision -which, is binding on members in accordance . with the- Rules of the Association.' (Rule 76) *- You. are summonsed to appear before the next Committee of Management. meeting to be: held. on the 21st of April 1981 at 9.00 _amat the Branch Office A.C.0.A. House, 2397 Adelaide Street Brisbane. You will have the opportunity to be heard. im your defence at this meeting. You. may reply to the charges in writing if you so wish. . Should. you. fait ta attend this meeting: a decision. om the above charges will be made: im your absence." 13.. After Mr Bryant informed the Secretary/Treasurer of the Queensland Branch of the Organization that he had been on leave on 24 February 1981 the allegation that he had. reported. for duty on that day was abandoned. 14. Correspondence was exchanged between each of Mr Bryant and Mr Thurecht and the Secretary/Treasurer of the Queensland Branch of the Organization between 8 April 1981 and 21 April 1981. On eg NT I ee RE ETT Ig ee ere ? = ci cai TES + 15. A letter dated 22 April 1981, a copy of which is annexure "C", was, —written to Mr Bryant by the Secretary/Treasurer . soa the Queensland Branch of the Organization.' That letter is im the following terms > "At the Committee: of * Management. Meeting, om the: 21 April 1981 charges: laid against you. under Rule! 76 of this: Association were heard. - The Committee found. you guilty of failing ta stop work om the 13 February 1981 and . Fine you. $10.00 on this charge, payable by you to this Branch of the Association. You.have the right under Rule 76 (2) of this Association, to appeal against the decision. at the next General Meeting of this: Branch to.be:- held om Monday 18 May 1981. Notification of any appeal should be: made to me at least 7 days prior to this. meeting. Yours faithfully, (sgd.) M.. J. Parker ao MAUREEN J. PARKER Secretary/Treasurer" 16. A letter dated 1 May 1981, a copy of which is annexure "D", was written to Mr Thurecht by the Secretary/Treasurer of the Queensland Branch of the » Organization." That Tetter is in. the following terms:— "Your letter was presented at the Committee of Management Meeting held on the 21 April 1981. At this meeting the Committee found you guilty of the charges laid against you under Rule 76 of this Association and fines you the sum of $20.00 payable by you. to this Branch of. the Association. Te a aaa erent mare —_: an Lc a a ee a ae eee - I pr a OE RE NO et Ny ge Ny OO TR Ee, You have the right under Rule 76 (2) of this Association, to appeal against the decision to the next General Meeting of this. Branch te be held on Monday 18 May 1981. Notification of any appeal should be made tome at least 7 days prior to this Meeting... rt doubt:. that. you. taking strike acttior would. have- - prejudiced Australia's 'Defence. Not allt your fellow workmates have received the same communication as you. After the meeting in Toowoomba on the 13 February 1981 your workmates obviously felt that you failed to support them and decided. you should be charged. Only when your workmatesi ask for you to be charged, does this Association. find out which members failed to goon strike. APSA. members. im Defence Department were not the only ones charged, members in. other departments had their charges. heard along with yours. You are entitled to a set of Rules which are available on. request. Please. find copy enclosed. If you. know of other members. who did not stop. work om the 24 February 1981 then you. may write to this Association and ask for them to. be charged. It seems strange to me that anyone would agree with legislatiom which allows an employer to dismiss ar employee without reason. However, you are entitled toa your opinion and not all APSA members will agree onall issues. That is why decisions are made on concensus (sic) of opinion of members. The- concensus (sic) of members has been overwhelmingly opposed to sections of the CERR Act since its introduction in 1976. The strength of any union is its unity which is damaged by members doing their own thing, eventually affecting the negotiating ability of APSA on your behalf. . Tn ee eS eee Should you wish ta discuss this or any matter with me please contact me. Yours faithfully, (sgd.) M. J. Parker MAUREEN J. PARKER" 17~ The Federal Council-of the Organization directed its Queensland Branch to> rescind fts decision to fine, inter alios, Mr Bryant and Mr Thurecht and not. to proceed: with. the fines: is. The Queensland Branch of the Organization refused to comply with the directions. of its Federal Council Which. took no action to enforce its directions to the Queensland. Branch. 19. (a) Neither Mr Bryant nor Mr Thurecht has paid his fine. (bh) No legal actiom has been taken by the Organization to recover the amount of any fine from Mr Bryant or Mr Thurecht. 20. Orr 19 April 1982, prosecutions No. V7 and V8 of I982 were commenced on behalf of the Industrial Relations Bureau against the Organization in the Victoria. District -Registry. The proceedings were - subsequently transferred to Brisbane and, by direction, consolidated: and heard together on 13 and 14 December 1982. 21. The charge against. the Organization in matter No. V7 of 1982, as amended, isr 'That om 2ist April 1981 at Brisbane in the: State of Queensland, you, being arr organization cof employees registered. pursuant to the Conciliatior and Arbitration Act. 1904, did through your Branch Committee of Management (Queensland Branch) impose the penalty of a $10.00 fine upon a member of the organization, one Michael David Bryant by reason of the circumstance that the said Michael David Bryant failed to join in industrial action on 13th February 1981, contrary to Section 188 (1) (e) of the said Act.' 22. The charge against the Organization in matter No. V8 of 1982, as amended, is: 'That on 21 April 1981 at Brisbane in the State of Queensland you, being an organisation of- -employees. registered pursuant to the Conciliation. and Arbitration Act 1904, did through your Branch Committee of Management. (Queensland Branch) impose: the penalty of a@ $20.00 fine upon a member of the organization, one John Richard Thurecht, by reason. of -the circumstance that the said Johm Richard Thurecht. failed to join in industrial action on 13th: February T98I and/or on 24th February 1981, contrary to Section 188 (1) (e) of the said Act." 23. No person present at any meeting of the Committee of Management of the Queensland Branch oof the Organization on 21 April 1981 was called to give evidence. Z4. No evidence was adduced with respect to the convening of or proceedings at any meeting of the Committee of Management of the Queensland Branch of the Organization on. 21 April 1981. 25. (a) The letters, exhibits C and D, were tendered by the prosecution only as evidence of statements made by the Secretary/Treasurer of the Queensland Branch. of the Organization. (b) Such letters were tendered and admitted into evidence only subject to the objection. of the Organization that the matters. stated therein could not be proved against it in these proceedings by proof of such statements by the Secretary/Treasurer of its Queensland Branch." ' Section 188 of the Act. provides as follows:- "(1) An organization - oo o-ne in ce a RG GN A RT NY STR TR EEN I NES TT FRETS Ne A TINT apr id 2 eee =o +e, ¥ 7 (e) shall not impose or threaten to impose, a penalty, forfeiture or disability: of any kind upon a member of the organization by reason of the circumstance that the member has refused or failed toy join in industrial action. (2) A contravention of sub-section: (1) is am offence against that sub-section punishable, upon conviction, by— r (a) where the action. constituting the offence has continued. for more thanm aday - @ penalty not exceeding a fine of $400 for each day during which that action has continued; or {b) im any other case - a penaity not exceeding a fine ' of $400. ; (3) Inr any proceedings for am offence against sub-section (1), af ail the relevant facts and circumstances, other than the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that. reason or taken with that intent. (4) For the: purposes of this section, an action taken by - (a) the committee of management of an, organization; (b) the committee of management of a branch of an organization; (c) am officer, employee or agent of an organization; (d@) @& group of members of an organization; or (e) a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organization, shall be deemed to have been taken by the organization." Nine questions are raised for the opinion of this Court under the Stated Case. It is convenient if I state and consider them in the order in which they appear in the Case. TT I EN OE SO EE arte ne -10~— Ll. Whether the letters, annexures "C" and "D" are admissible against the: Organization as proof of the matters stated therein. \ This: question is. important. because unless the letters are admissible against. the. Organization as admissions there is na other evidence tending, to. estahbiish that it imposed penalties upon Mr. Bryant and Mr. Thurecht so: that in the absence of the letters. the prosecutions: would necessarily fail. Statements made by an agent within the scope of his authority to third persons may in some circumstances be admissible as admissions against his principal. But there is a distinction between what an agent. is presumed -to have: authority to do as part of the carrying: on of his principal's affairs and what he has authority to admit regarding past transactions: see Ex parte Gerard & Co. Pty. Limited; Re Craig (1944) 44 S.R. (N.S.W.) 3707 Scott vw Fernhill Stud Poultry Farm Pty. Limited £19631 VLR. 12. For a statement by an agent to a third. party to be admissihle as, ar admission. against his. principal it must have been made as part of a communication which the agent was authorised to have with the third party. Sometimes that authority will be express, sometimes implied. If implied, it is a question of fact im each case- whether the statements were made by the: agent in the course of the principal's activities and in the course of the agent's. duty: see Fraser Henleins Pty. Limited. v. Cody (1945) 70 C.L.R. 100; Kirkstall Brewery Co. v. ? rr rn ey en or nF een oe een TI renee ee tee -1I- Furness Railway Co. £18747 L.R.9Q0.B. 468; Cross 0n Evidence, 2nd Australian Edition by J.A. Gobbo, D. Byrne and J .D. Heydon, para. 18.108.. Many of the reported cases concern the authority: of directors or officers. of companies to' make admissions binding on the companies and. must be applted with some care im the: case of organizations of employees registered. under the Act. The rules of such. organizations frequently provide for divisions of function between component bodies at Commonwealth and State levels and between officers. of those bodies. Im the present case the Organization vests its: management in its. Conference, Federal Council, Federal Committee, Branch General Meetings. and. Branch Committees- of Management. The Rules of the Organization entrust each of them with specified powers. Except perhaps where Branches: have autonomy in certain matters, they are required to comply with. the directions of the Conference or the Federal Council (para. 37 (1) (a) of the Rules of the Organization). The two Ietters in question here-were signed by Maureen J. Parker as Secretary/Treasurer oof the Queensland Branch of the Organization. Under the Rules:-— ",..a Branch may amalgamate the positions of Secretary and Treasurer and if a fulltime officer is employed as Secretary the positions shall be amalgamated under the title of Secretary/Treasurer.": sub-r. 53 (6). It. was not disputed before us that when Maureen J. Parker signed the two letters she did so as the holder of the amalgamated office of Secretary and Treasurer. SEER rT rr rg ee eT ee eee The duties of a Branch Secretary as prescribed by Rule 60 include the duties. of attending; all general meetings and committee of management meetings. of the Branch and carrying out the instructions of such meetings having regard to the objects of the Association; attending toa all correspondence received by the Branch; converring: meetings of the Branch; ensuringy that the minute books of the Branch. are. kept; receiving- all. moneys due to the Organization from the members of the Branch and keeping records of moneys received and issuing receipts: for the same. The Branch. Secretary is entitled to speak and vote at all meetings of the Branch (sub-r. 60 (2). The Branch. Secretary is empowered to sue any member of the Branch or behalf of the Organization for arrears of subscriptions or any amount. owing in respect of fines and levies im accordance with the relevant Rule (sub-r. 60 (3)). The duties of a Branch Treasurer as prescribed by Rule 62 include attending all general and Committee of Management meetings of the Branch and rendering such assistance as may be required of him; receiving from the Branch Secretary or ather authorized persons all moneys: belonging to the.Branch and depositing: them to the credit of the Branch in the relevant bank account; issuing receipts for all moneys' received and heing responsible for all entries on members' index cards. The Branch Treasurer is entitled to speak and vote at all meetings of the Branch (sub-r. 62 (2) ). PE STF OTE ROR Re TE YT ONT egg rer ony Rn me es eo sree Geemarc -- SS Aad -13- Rule 76 is important as it is. the basis on which the Committee of Management of the Queensiand Branch purported to. act wher resolving to impose fines om the two: members. Rule 76 provides:- ™, 76. (1)- Any member of the Associatiom wha is guilty: of --a@ serious: breach: of the: Rulem of the Association. or wha has) failed to: comply with. a decision which is. binding or members in. accordance with the Rules of the Association may be summonsed to appear before a meeting of the Committee of Management of the Branch to which he is attached. Such member shail be given seven days notice of the charge or charges made against him and shall be entitled to attend the: meeting of the Branch Committee of Management. considering the charge and to be heard in his defence. Tf the member is. found guilty of the charge or charges, he may be reprimanded, fined an amount not- exceeding twenty dollars or expelled - from membership of the Association. (2) A member who is reprimanded or fined in accordance. with this Rule shall have the right of appeal to the next succeeding General Meeting. of the Branch toa which he is attached. A member who is: expelled pursuant to this: Rule shall have a right to appeal to the Federal Council of the Assoctation. or Conference and in each case the decisiom of the Federal. Council or Conference shall be final..." Sub-rule: 76, (1) contemplates that someone must summon the person charged with the offence for which the sub-rule provides, give seven days notice to that person: of the charge and, presumably if he does not attend the. relevant meeting where the charge is heard, tell him of the result of the meeting especially if he is found guilty. Although the sub-rule does not nominate the person or persons who must do these things, it seems to me that the Secretary/Treasurer is the obvious person if no one else is. asked to do it. ~14— The two letters of 8 April 1981 written by the Acting Secretary/Treasurer of the Queensland Branch of the Organization to Mr. Bryant and Mr. Thurecht were admitted without objection of the Organizatiorr. Those letters notified Mr. Bryant and Mr. Thurecht of the fact that. they were charged under Rule 76, summoned. to- appear before the Committee. of Management. meeting to be held' om 21 April 1981, that they were entitled tc reply to the charges if they sa desired and that. if they failed to attend the meeting a decision on. the charges would be made in their absence. Correspondence was exchanged between & and 21 Aprii 1981 between each of Mr. Bryant and "Mr. Thurecht and the Secretary/Treasurer of the Queensland Branch. A letter was written by Mr.. Thurecht which was presented. at the meeting of the Committee of Management of Zl April 1981. In: the light of these matters. in my view the Secretary/Treasurer had implied authority to write the two letters in question to Mr. Bryant and Mr. Thurecht om behalf of the Queensland Branch of the Organization and.on behalf of the Organization itSelf. That authority extended to making admissions on behaif of the Queensland Branch and the Organization, but the admissions must be read im the: light of paragraph 25 of the Stated Case. That paragrpah was discussed before us- by counsel for both parties and it is common ground that the two letters were tendered by the Prosecutor and admitted in evidence only as evidence of the passing of the resolutions therein mentioned. OT CO TN LS Te RONEN SR ne a ee re re een a er eet er, -15— I am mindful that some actions of the Secretary/Treasurer may bind the Branch but not necessarily the Organization itself. For some; purposes branches of industrial organizations are independent units, not agents: of the whole organization. The: degree of autonomy ef branches differs as between organizations. Ultimately these questions. of authority generally turn. on the Rules. of the particular organization. and the facts of each case. These questions have: been discussed in various cases including Waterside Workers' Federation of Australia v. Burgess Brothers Limited (1916) 21C.L.R. 129>;. The Commonwealth Steamship Owners' Association v. The Federated Seamen's Uniorr of Australasia. (1923) 33 C.L.R. 297; Coal Miners Industrial Union of Workers of Western Australia v. True: (1959) 33 A.L.J.R. 224; Williams v. Hursey (1959) 103 C.L.R. 30. I would answer Question 1 - Yes. Zz fa) Whether it was established by evidence admissible . against 'the Organization that the Queensland Branch Committee of Management of the organization on 21 April 1981 fined Michael David Bryant $10.00 for failing to stop work on 13 February 1981; ae, 2 pre ee a RE OU On -16- The real point invoIved in question 2 (a) is whether this Court. constituted by a single Judge when hearings the charge brought against the Organization in relation to Mr. Bryant for breach of para. 188 (I) (e) of the Act could be satisfied: beyond reasonable doubt that the Queensland Branch Committee of Management of the Organization fined Mr. Bryant $10.00 for failing to stop work on I3 February 1981 when the only evidence tending ta establish this was the letter of 22 April 1981 written by the Secretary/Treasurer to Mr. Bryant. Counsel for the Organization submitted that the question should be answered. in the negative. as the Prosecutor did not call any officer or member of the Queensland Branch to give evidence or tender any minutes of meetings of the Queensland Branch Committee and merely tendered the letter im question. Notwithstanding that the letter of 22 April 1981, annexure "C™ to the Case, was the only evidence of the fact that the Committee of Management of the Queensland Branch of the Organization fined Mr. Bryant for failing to comply witr a decision of his workmates that they would not returm to work for the remainder of 13 February 1981, in my opinion the Court couid be satisfied beyond reasonable doubt of the matters raised by the question. I would answer Question 2 (a) - Yes. TEMA -L7- 2. (b} If yes, to 2 (a) whether that decision of the Queensiand Branch Committee of Management of the Organization: {)) was valid; ° (ii) was invalid by reason of paragraph 188 (1) (e and/or paragraph 140 (1) (a) of the Act; (iii) was invalid otherwise than Db reason of paragraph 188 (1) (e) and/or paragraph 140 (1) fa) of the Act; tiv) constituted the imposition of a penalty within the meaning of paragraph 188 (1) (e) of the Act. I will deal first with the €onstruction and operation of para. 188 (1) (e) of the Act.. Does it prohibit only impositions (I leave aside threatened impositions) of penalties, forfeitures or disabilities of any kind that would otherwise be valid (i.e. by ignoring the effect which the paragraph would itself have on the imposition of a penalty etc.); or does it extend to purported but invalid impositions? I NRT EE I ON LER ae . ie} ~I8— It was submitted on behalf of the Organization that the acts proscribed by para. 188 (1) (e) are confined to the imposition of penalties otherwise validly: imposed. I cannot accept this argument. To accept it. would defeat. the evident purpose of para. 188 (1) ('e) and. the: other paragraphs in the section namely, that they are directed: toa prohibiting- organizations. from.taking actiorr which may have the effect of coercing'employees to join in. industrial action. The paragraph. is: not concerned with whether the penalty has been validly imposed. by an organization. Rather itis directed to the real events which ; have occurred and to the question whether, in all the circumstances, ar oarganizatiormr has taken steps which in a practical sense constitute the imposition of a: penalty. I cannot. conceive that Parliament intended that organizations. which purport to impose penalties which, through inadvertence or otherwise, are ineffective in. law. because, for example, some material procedural requirement of its Rules. was not complied with, should be: outside the section. In. my: view it is- the very conduct which is intended to fall withim the scope of the prohibition. Acceptance of the submissior would. reduce s. 188. toa paper tiger. The Act contains many provisions designed to promote organizations and foster their interests and those: of theiz members. It also imposes restraints or prohibitions on certain actions of organizations.. Section 188 is one example. It is sufficient to attract the operation of para. 188 (1) (e) that an organization purports to impose a penalty whether that imposition is otherwise effective in law or not. Fa wee af i ee em en emer ote nn In thus: construing para. 188 (1) (e) I have the misfortune to differ from the views expressed by Ellicott J. in Squires v. Flight Stewards Association of Australia (unreported 19 August 1982) where his Honour held that the words in para. 188 (1) (e) "impose a penalty" are not satisfied unless a. penalty is effectively imposed in the sense that it is imposed: validly so as. to place a member under a Tiability or burden, without taking -into: account the effect. which the paragraph itsel— has om the validity of the resolution imposing the penalty. Notwithstanding the respect I have for the views expressed by his Honour in. Squires Case L am unable to agree with them and I decline to follow his judgment on this question. I turn ta. the facts: of this case. The charge: which the Committee found proved. against Mr. Bryant was that he: failed to comply with a decision said to be hinding om members in accordance with. the Rules, of the Organization namely, a decision by his fellow workmates. not to return to work for the remainder of 13 February 1981 and. calling om all members not present to cease work for that period. The meeting of the members was held on 13 February 1981 at 12.30 p.m. The validity of the findings of the Queensland Branch Committee can be sustained. oniy if the charge answers the description of a failure to comply with a decision binding on members of the Organization in accordance with its. rules or, perhaps, being guilty of a serious breach of the Organization's rules (see sub-r. 76 (1)). The FE LINCS LEI ESL TTT T I NE TE SILER OP At EE PIETER EL PE ET I - wots =. een = lated ; aT 2 charge which the Queensiand Branch Committee found proved against Mr. Bryant does not answer either description. The meeting held on 13 February 1981 was not a general meeting of the members of the Organization or a general meeting of the members of the Queensland Branch of the. Organization. » Tt: was. merely an informal meeting of persons who were members~~ of: either the Organization: or the Administrative and. Clerical: Officers' Association, Australian Public Service. There wassno decision made which could be. said) ta bind members of the Organization in accordance with its rules. Nor couid it be said that any rule of the Organization was breached, whether seriously or otherwise. I shauld add that no rule or other source of power was. relied. on. ather tharm- Rule 76 to support the validity of the decision of the Branch Committee. In my opinion. the decision reached: by the Committee of Management of the Queensland Branch on 21 April 1981 in relation ta Mr. Bryant was: invalid. My view is. supported on another ground. Properly construed, Rule 76 is directed. only to decisions: which do not contravene the law. I cannot conceive that the draftsman of the rule intended that it. could encompass within: the description "a decision which is binding on members in accordance: with the Rules of the Association" decisions which are contrary ta lawr for example, decisions to impose. penalties in contravention of para. 188 (1) (e). This conclusion is supported also. by para. 140 (I) (a) of the Act which provides that the rules of an organization shall not be contrary to a provision of the Act. EO FI LE RE TE TE I TR NN NE ERSTE Ff REN ina ae = —21-— Before leaving this- question I should refer to a submission of counsel for the Organization that the word "impose" in para. 188 {L) (e) necessarily involves the notion of recovery of a penalty. The mere: passing: of a. resolutiomr to, impose a penalty (or merely passing the resolution and notifying the person concerned of the passing thereof) was: said to be insufficient ta constitute the imposition of a penalty within the meaning of the paragraph. The word "impose" appears in para.(d) of sub-s. 188 (1) as well as para. {(e). It appears also in sub-s. 191 (1) which provides that where a person has committed an offence against the Act or the regulations and has. been. charged accordingly before the Court, the Court "may impose the penalty- provided" by the Act or the regulations in respect of that offence. Piainly courts impose penalties by orders. Recovery or enforcement of penalties is a later and separate step and not one undertaken by the Court itself: see s. 121. These references to the word "impose" are in accord with its ordinary and natural meaning and are consistent with the meanings ascribed: by dictionaries. Although recovering a penalty or attempting to recover it does not necessarily fall within the notion of imposing a penalty for the purposes of para. 188 (1) (e), is it necessary that the person found guilty of the charge be notified of the passing of the resolution: before the penalty can be said to have been imposed? I do -22- not find it necessary to answer this question because I am satisfied on the material before us that Mr Bryant was notified of the passing of the relevant resolution. Notwithstanding the limited basis on which. the letters of 22 April and 1 May 1981 were tendered. and admitted (see paragraph 25 of the Case), I find the inference irresistible that Mr Bryant and Mr Thurecht were notified of the passing of the resolutions. I rely upom the Case as a whole including the form of the letters: themselves, the fact that they are addressed to Mr Bryant and Mr Thurecht and the fact that the letters were written to them (paragraphs 15 and 16 of the Case). Any other conclusiom would be contrary to commonsense. I would answer question 2 (h) as follows:- (i) No (ii) Yes, by reason of para. 188 (1) (e) of the Act. (iit) It is: not necessary to answer this question. (iv) Yes 2. fe) If yes to question 2 (b) (iv) whether the penalty imposed on Michael David Bryant by the Queensland Committee of Management of the Organization on 21 April 1981 was. imposed by reason of the circumstances that he failed to join in industrial action on 13 February 1981 within the meaning of paragraph 188 (1) (e)} of the Act. EY GR LR A LTO EN ROL LE ETT IN RN AT ANE EN AN ON -oe - — — —— -: ~ FEn at Pee nt OF Fa re Nan et i he a er a Sd atte al rn el ee ce Counsel for the Organization conceded that if question 2 (b) {iv) is answered in the affirmative the Organization did not oppose an affirmative answer to this question. Accordingly, I would answer the question, yes. 3. fa) Whether it was estabtished by evidence admissible against the Organization that the Queensland Branch Committee of Management of the Organization on 21 April 1981 fined John Richard Thurecht $20.00 for failing to abide by a direction asa result of a resolution carried at a duly constituted meeting of members of the Organization in Toowoomba. _on 13 February 1981, that "This Meeting resolves not to return to work for the remainder of today and calls on all members not present to cease work for that, period" and -for failing to abide by a direction of the Federal Committee of the Organization that "All A.P.S.A. members are directed. to cease work from midnight the 23rd February - midnight the 24th February 1981". For the reasons given by me when answering question 2 (a) I would answer this question - yes. "Fee oe bd A ae on ke -24— 3. (b) If yes to 3 (a), whether that decision of the Queensland Branch Committee of Management of the , Organization: (xr) was valid: - (£1) was invalid by reason of paragraph 188 (1) (e) .and/or paragraph 140 (1) (a) of the Act; (iii) was invalid otherwise than b reason of Paragraph 188 (1) (a) and/or paragraph 140 (1) (a) of the Act; (iv) constituted the imposition of a penaity within the meaning of paragraph 188 (1) (e) of the Act. As. to Me. Thurecht, the position is relevantly much the same as it was inthe case of Mr. Bryant except that two charges were brought against Mr. Thurecht,. the same charge as that hrought against Mr.. Beyant in relatiom to 13 February 1981 and the additional charge that. he (Mr. Thurecht) failed to comply with.a decision which was said to be. binding on members of the Organization in accordance with the Organization's rules namely, a direction by the Federal Committee of the Organization that all members of the Organization were directed to cease work from midnight 23 February to midnight 24 February 1981 and that Mr. Thurecht reported for duty that day with full knowledge of the direction. Mr.. Thurecht was fined $20.00 im respect of both ' -25- alleged breaches of Rule 76, the fine being undivided as to each breach... Hence the invalidity of the Queensland Branch. Committee's decision as to the breach. said to arise from the events of 13 February 1981 necessarily tainted the Committee's decision in relation to 24 February i981. I would answer this question as follows:— 3 (by (i) No. 3 (b) (11) Yes, by reason of para. 188 (1) (e) of the Act. 3 (bh) (iii) It is not necessary to answer this question. 3 (b) (iv) Yes. se {c) If yes to 3 (b) (iv) whether the penalty imposed. on John Richard Thurecht by the Queensland Committee of Management of the Organization on 21 April 1981 was imposed. by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981 within the meaning of paragraph 188 (1) fe) of the Act. For the reason given by me when answering question 2 (c)}, I would. answer this question, yes. TT A EEE TN LA TN LN RP ED RIE TY NFM AOR, AR NA PTY TENE 5 eae ws . 4... Tf yes to 2 (c), did the Organization by its Queensland Branch Committee of Management on. 21 April 1981 impose the penaity of a ST0.00 fine upon Michael David Bryant by reason of the circumstance that he faiied to join in industriaL action 13 February 1981.. This. questiom was argued on the assumption that the Committee of Management imposed. the fine: of $10.00 upon Mr Bryant but raised for decision whether the imposition of the fine by the Committee bound the Organization itself. It was submitted by counsel for the Organization that. the Organization was not bound by this action of the Committee. As I said earlier, for certain purposes it is true that. some acts of officers employed by branches of the Organization may not necessarily bind the Organization itself. Iwill not repeat what I said. Notwithstanding that some decisions or acts of the Committee of Management may not bind the Organization, in the present case the relevant decisions were taken by the Committee of Management of the Queensland Branch of the Organization purportedly pursuant to r. 76. Nothing was advanced in argument to support in my view the contention that those decisions did not bind the Organization. Accordingly I would answer this question - yes. OP a I TT Le LO A EL OS ATS EER TALEO INN WN mee FY : ahaa sin -27- 5. If yes to 3 (c), did the Oqanization by its QueensIand Branch Committee of Management on 21 April 1981 impose the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that he failed to join in industrial action on i3 February 1981 and/or 24 February 1981. - As to the events of 13 February 1981 the position. is relevantly the: same-as it is. in the case of Mr Bryant... The fact that the Federal Secretary/Treasurer of the Organization directed its, members not to attend for work on 24 February 1981, that the members of the Federal Committee were unanimous that the members of the Organizatiom should he so directed by the Federal Secretary/Treasurer, that prior to that direction being given the Federal Secretary/Treasurer of the Organization was separately informed by each of the ather members of the: Federal Committee of the: Organization that he or she agreed to the direction being given, and that no resolution. was: passed. at a meeting of the Federal Committee that. its members should: be: so directed by its. Federal Secretary/Treasurer, is: not to the point. However if it were relevant to consider these matters in my view it would follow that, informal though it may have been, the Federal Committee must be 'treated. as having directed the relevant. members of the Organization not to attend: for work on 24 February 1981 and that such direction bound the Organization. Some argument was put on the basis that the Federal Council is not entitled to direct the Queensland Branch of the Organization on matters falling within the autonomy of the Queensland Branch and reliance was placed in this regard upon certain Rules of the Organization such as Rule 75 (2). To the extent that any such argument has relevance in this case, TS a IAL RT ER A EN eS SA SE Sea a Tae am fee . Pe —28- in my opinion it is without substance. I would answer this. question. — yes. es sae alan 6. If no to 4 or 5 is sub-s. 188 (4) of the Act: (a) a law for the peace order and good government of the Commonwealth of Australia with respect to conciliation and: arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State within the meaning of s. 51 (xxxv) of the Constitution of the Commonwealth of Australia; (b) a law for the peace order and good. government of the Commonwealth of Australia with respect to matters. incidental to the execution of the power vested by the said s. 51 (xxxv) of the Constitution of the Commonwealth of Australia and the Parliament of the Commonwealth of Australia within the meaning of _s. 51 (xxxv) of the Constitution of the Commonwealth of Australia; (c) otherwise: ai valid law of the Parliament of the Commonwealth of Australia under the Constitution of the Commonwealth of Australia This question does not arise. Ne RIED $DATE OAT CENT ET OND SLT © ST RUGENED §SSTNS TIENT ETRE ECTS OATS en 7. If yes to any of 6 (a), 6 (b) or 6 (c), is the Organization deemed to have, on 21 April 1981, imposed the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on [3 February 1981.. This: question does, not arise. 8. If yes to any of 6 (a),6 (b) or 6 (c), is the Organization deemed to have, on 21 April 1981, imposed the penaity of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that the said John Richard Thurecht failed. to join in industrial action on 13 February 198f and/or on 24 February 1981. This questior does not arise. 9. Is the Organization quiity of the offences charged or either and if so which of them. This is a matter for determination by the trial Judge. In summary, I would answer the questions as follows:- Question 1: Yes. Te TI OT rT ern eon ——— NN AR LA eR I AE es uestion 2 (a): (b) (ide (id): Question 3 (a): . T TE Re oe a fis> 2 hte hon Fr td me TS of td Sgn PEL A Yes. No. Yes, by reason of para. 188 (1)(e) of the. Act. {iii): It is not necessary to answer this question. {iv): Yes. Yes. Yes. (bh) (ids No. (ii): Yes, by reason of para. 188 (1) (e) of the Act. (iii): It is not necessary to answer this question. (iv): Yes. il aaa aaa Sah a a kn Si i a a ei kenennes Tey Se teed ee BEERS L oO, dee bet PEGE eaes AI (c) Yes. Question 4: Yes. Question S: Yes. : ouestions 6, 7 and 8: These questions do not arise. Question 9: This is) a matter for determination by the trial Judge. J certify that tha thirty (30) Preceding pages ava a true cory of the Reassna fer Jucgmont herein of his Honour Mr. Justice LocwAart Assoclato Dated: of f July 1983. s ayn nan em naretecs > - ~~. NU Sees _ ~~~ + reg: EEO TREY errr meee NN ETE PRES ye ea wings at IN THE FEDERAL COURT OF AUSTRALIA) QUEENSLAND DISTRICT REGISTRY ) VIC NO V7 OF 1982 INDUSTRIAL DIVISION ) VIC NO.V8 OF 1982 IN THE MATTER of the CONCILIATION AND ARBITRATION ACT BETWEEN : DESMOND LAWRENCE LINEHAN (on behalf of the Industrial Relations Bureau) Prosecutor THE AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISION OFFICERS ) Defendant CORAM: FOX, LOCKHART & FITZGERALD JJ DATE: 29 JULY 1983 REASONS FOR JUDGMENT Pitzgerald J: This is a special case stated under s.26 of the Federal Court of Australia Act 1976 and s.105 of the Conciliation and Arbitration Act 1904 ("the Act"). Some of the questions concern the constitutional validity of certain provisions of the Act. The Court is satisfied that the notice required to he given under s.78B of the Judiciary Act 1903 was given to both the Attorney-General for the Commonwealth and the Attorney-General for the State of Victoria where the proceedings were commenced. The Victorian Attorney-General indicated in writing that he did not wish to be heard. The same counsel represented both the Commonwealth Attorney-General and the prosecutor. The defendant is an organization of employees registered pursuant to the Act and having its registered office in Victoria. On 19 April 1982, prosecution nos. V7 and V8 of 1982 - were commenced: on. behalf of the Industrial Relations Bureau against the defendant. Both charges related to alleged breaches of para. 188i L)(e) of the Act which is in the following terms: "T88(1) An organization (e) shall not impose or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organization by reason of the circumstances that the member has refused or. failed to join in industrial action;" The charge against the defendant organization in matter no. V7 of 1982, as amended, is: "That on 21st April 1981 at Brisbane in the State of Queensland, you, being ar organization of employees registered pursuant to the Conciliation and Arbitration Act 1904, did through your Branch Committee of Management (Queensland Branch) impose the penaity of a $10.00 fine upon a member of the organization, one Michael David Bryant by reason of the circumstance that the said Michael David Bryant failed to join in industrial action on 13th February 1981, contrary to Section 188(1)(e) of the said Act." The charge against the defendant organization in matter no. V8 of 1982, as amended, is: "That om 21st April 1981 at Brisbane in the State of Queensland you, being an organization of employees registered pursuant to the Conciliation and Arbitration Act 1904, did through your Branch Committee of Management (Queensland Branch) impose the penalty of a $20.00 fine upon a member of the organization, one: John Richard Thurecht, by reason of the circumstance that the said John Richard Thurecht failed to join in industrial action on I3th February 1981 and/or on 24th February 1981, contrary to Section 188(1)(e) of the said. Act." Both persons mentioned in the charges, Messrs Bryant and Thurecht, were at all material times members of the defendant employed. by the Commonwealth of Australia in the Department of Defence at No. 7 Stores Depot, North Drayton, Toowoomba in the State of Queensland. Neither complied with a decision taken at a meeting in Toowoomba on 13 February 1981 of a number of persons each of whom was a member of either the defendant organization or the: Administrative and Clerical Officers' Association, Australian Public Service. As a result of the decision taken at that meeting, some- persons, including some of the workmates of Messrs Bryant and Thurecht, stopped work early on that. day without the authority of their employer but Messrs Bryant.and Thurecht each continued to work until excused. The decision of the meeting was not, on any view of the matter, one which was binding on Messrs Bryant and Thurecht in accordance with the- Rules of the defendant organization and their continuing to work did not constitute any breach of the Rules. Prior to 24 February 1981, the- Federal Secretary/Treasurer of the defendant organization with the agreement of all other members of its Federal Committee but without any formal resolution directed its members not to attend for work on that day. Some members of the defendant organization failed or refused to attend for work without the authority of their respective employers. However, Mr Thurecht attended work and. performed. his normal duties. Mr Bryant was on leave. By letter dated 8 #£April 1981, the Acting Secretary/Treasurer of the Queensland Branch of the defendant organization wrote ta each of Mr Bryant and Mr Thurecht in the following terms: "T have beer requested by your fellow workmates ta officially charge you under the Rules of this. Association for failing to abide by adirection as a result of a resolution -carried at a duly constituted meeting of A.P.S.A. members in Toowoomba on the 13th of February 1981 at 12.30 pm. That resolution being as follows - 'This meeting resolves not to return to work for the - remainder of today and calls on. all members not present to cease work for. that. period.' A.P.S.A. members who were not present at that meeting of the I3th of February 1981 were duly notified of the decision, which you failed to abide by. Also, you are officially charged for failing tao abide by a direction of the Federal Committee. That direction being - 'All A.P.S.A. members are directed to cease work from midnight the 23rd of February - midnight the 24th of February 1981.' Tt has been reported that you did in fact report for duty on this day with the full knowledge of the above direction. You are therefore formally charged with failing 'to comply with a decision which is binding on members in accordance with the. Rules of the Association.' (Rule 76) You are summonsed to appear before the next Committee of Management meeting to be held on the 2lst of April 1981 at 9.00 am at the Branch Office A.C.0.A. House, 297 Adelaide Street, Brisbane. You will have the opportunity to be heard in your defence at this meeting. You may reply to the charges in writing if you so wish. Should you fail to attend this meeting a decision om the ahove charges will be made im your absence." . After Mr Bryant informed the Secretary/Treasurer of the Queensland Branch of the defendant organization that he had been on leave on 24 February 1981, the allegation that he had reported for duty on that day was abandoned. Rule 76 which is referred to in the letters of 8 April 1981 provides as follows: - EXPULSION OF MEMBERS 76.01). Any member of the Association who is. guilty of a serious breach of the - Rules of the Association or who has failed to comply with a decision Which is binding on members in accordance with the Rules of the Association may be summonsed to appear before a meeting of the Committee of Management of the Branch to which he is attached. Such member shall be given seven days notice of the charge or charges Made against him and shall be entitled to attend the meeting of the Branch Committee of Management considering the charge and to be heard in his defence. If the member is found guilty of the charge or charges, he May be reprimanded, fined an amount not exceeding twenty. dollars or expelled from membership of the Association. (2) A member who is: reprimanded or fined in accordance with this Rule shall have the right of appeal to the next succeeding General Meeting of the Branch to which he is attached. A member who is expelled pursuant to this Rule shail have a right to appeal to the Federal Council of the Association or Conference and in each case the decision oof the Federal Council or Conference shall be final." Rule 76 ts im a part of the Rules headed "Disciplinary Provisions"... No other provision is made for the disciplining of members. Rule 75, which is complimentary in part to Rule 37 "Control of Branches", makes separate provision with different procedures: for disciplining both Federal and Branch officials of the defendant organization. Correspondence was exchanged between each of Mr Bryant and Mr-Thurecht and -the Secretary/Treasurer of the Queensland Branch of the defendant organization between 8 April 1981 and 21 April 1961. No evidence was adduced with respect to the convening of, or proceedings at, any meeting of the Committee of Management of jhe Queensland Branch of the defendant organization on 21 April 1981 and no person present at any meeting of the Committee of Management of the Queensland Branch of the defendant organization on 21 April 1981 was called to give evidence. However, the prosecution tendered two letters forwarded by the Secretary/Treasurer of the Queensland Branch of the defendant organization containing statements which it relied upon as admissions by the defendant organization. Such letters were only tendered and admitted into evidence subject to the objection of the defendant organization that the matters stated therein could not be: proved against it in these proceedings by proof that such statements had been made by the Secretary/Treasurer of the Queensland Branch. Further, it wag not argued that if the letters were admissible and admitted into evidence they were in evidence for #11 purposes and it was not in dispute on the hearing before "us. that the different. Counsel who conducted the trial for the prosecution had expressly TLimited the prosecution's use of the letters to the admissions which the letters were said to contain, and tendered them only on that basis and for that purpose. The reason for that was. that it was no part of the prosecutor's case that the communication of any decisions made. by the Committee of Management of the defendant organization on 21 April 1981 was an element of the conduct alleged to constitute the offences charged. The prosecution relied solely om the decisions alleged to have been made. The first of the letters, referred to in the Case Stated as annexure "C", was dated 22 April 1981 and was addressed to Mr Bryant in the following terms: "At the Committee of Management Meeting on the 21 April 1981 charges laid against you under Rule 76 of this Association were heard. The Committee found you guilty of failing to stop work on the 13 February 1981 and fined you $10.00 on this charge, payable by you to this Branch of the Association. You have the right under Rule 76(2) of this Association, to appeal against the decision at the next General Meeting of this Branch to be held on Monday 18 May 1981. Notification of any appeal should be made to me at least 7 days prior to this meeting." The other Ietter, referred to in the Case Stated as annexure "D", was dated 1 May 1981 and was addressed to Mr Thurecht in the following terms: "Your letter was presented at the Committee of Management Meeting held on the 21 April 1981. At this: meeting the Committee found you guilty of the charges laid against you under Rule 76 of this Association and fines you the sum of $20.00 payable by you to this Branch of the Association. You. have the right under Rule 76(2) of this Association, to appeal against the decision to the next General Meeting of this Branch to be held on Monday 18 May 1981. Notification of any appeal. should be made to me at least 7 days prior to this meeting. T doubt that you. taking strike action would have prejudiced Australia's Defence. Not all your fellow workmates have received the same communication as you. After the meeting in Toowoomba on the 13 February 1981 your workmates obviously felt that you failed to support them and decided you should be charged. Only when your workmates ask for you to be charged, does this Association find out which members failed to go on strike. APSA members in Defence Department were not the only ones charged, YjWembers in other departments had their charges heard along with yours. You are entitled to a set of Rules which are available on request. Please find copy enclosed. If you know -of other members: who did not stop work onthe 24 February 1981 then you may write to this Association and ask for them to be charged. It seems strange to me that anyone would agree with. legislation which allows an employer to dismiss an employee without reason. However, you are entitled to your opinion and not all APSA members will agree on all issues. That its why decisions are made om concensus of opinion of members. The concensus of members has beer overwhelmingly opposed to sections of the CERR Act since its introduction in 1976. The strength of any union is its unity which is damaged. by members doing their own thing, eventually affecting the negotiating ability of APSA on your behalf. Should you wish to discuss this or any matter with me please contact me." Neither Me Bryant nor Mr Thurecht paid the fine referred to in the letter to him and no legal action has been taken by the defendant organization to recover the fines from either Mr Bryant or Mr Thurecht. The Federal Council of the defendant organization directed the Queensland Branch Committee of Management to rescind its decisions to fine Mr Bryant and Mr Thurecht, but that has not been done and the direction from the Federal Council has not been enforced, as it might have been, under the defendant organization's Rules 37 and 75. The questions raised for the opinion of this Court are as follows: "1. Whether the letters, annexures "C", and "D" are admissible against the defendant organisation as proof of the matters stated therein. 2. (a) Whether it was established by evidence admissible against the defendant. organisation that the Queensland Branch Committee of Management of the defendant organisation on 21 April 1981 fined Michael David Bryant $10.00 for failing to stop work on 13 February 1981; (b) -~If yes, to 2(a), whether that decision of the Queensland Branch Committee of Management of the defendant organisation: (i) was valid; CiL) was invalid by reason of paragraph. I88(1)(e) and/or pararaph 140(1)(a) of the Act; (LiL) was invalid otherwise than by reason of paragraph 188(1)(e) and/or pararaph. 140(1)(a) of the Act; (iv) constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act. (c) Tf yes to 2(b)(iv), whether the penalty imposed. on Michael David Bryant by the Queensland Committee of Management of the defendant organisation on 21 April 1981 was imposed by reason of the circumstances that he failed to join in industrial action on 13 February 1981 within the meaning of paragraph 188(1)(e) of the: Act. (a) Whether it was established by evidence admissible against the defendant organisation that the Queensland Branch Committee of Management of the defendant organisation on 21 April 1981 fined John Richard Thurecht $20.00 for failing to abide by a direction as aresult of a resolution carried at a duly constituted meeting of members of the defendant organisation in Toowoomba on 13 February 1981, that "This. Meeting resolves not to return to work for the remainder of today and calis on all members not present to cease work for that period" and for failing to abide by a direction of the Federal Committee of the defendant organisation that "All A.P.S.A. members are directed to cease work from midnight , the 23rd February - midnight the 24th February 1981." a. (b) Tێ yes to 3(a), whether that decision of the Queensland Branch Committee of Management of the defendant organisation: (1) was valid; (ii) was invalid by reason of paragraph 188(1)(e) and/or pararaph 140(1)(a) of the Act; (Lit) was invalid otherwise than by reason of paragraph 188(1)(e) and/or pararaph 140(1)(a); , Civ) constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act. (ec) T£& yes to 3(b)(iv) whether the: penalty imposed on John Richard Thurecht by the Queensland Committee of Management of the defendant organisation on 21 April 198L was imposed by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981 within the meaning of pararaph. 188(1)(e) of the Act. If yes to 2({c), did the defendant organisation by its Queensland Branch Committee of Management oon 21 April 1981 impose the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981. If yes to 3(c), did the defendant organisation by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981. Tf no to 4 or to 5, is sub-s. 188(4) of the Act: 8. (a) a. law for the peace order and good government of the Commonwealth of Australia with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State within the meaning of s.51(xxzv) of the Constitution of the Commonwealth of Australia; (bh) a law for the peace order and good government of the Commonwealth of Australia with respect to matters incidental to the execution of the power vested by the said s.5l(xxxv) of the Constitution of the Commonwealth of Australia: and the Parliament within the meaning of s.51(xxxix) of the Constitution of the Commonwealth of Australia; Ce) otherwise a valid law of the Parliament of the Commonwealth of Australia under the Constitution of the Commonwealth. of Australia. Tf yes to any of 6(a), 6(b) or 6(c), is the defendant organisation deemed to have, on 21 April 1981, imposed the penalty of a $10.00 fine upon Michael David. Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981. If yes to any of 6(a), 6(b) or 6(c) is the defendant organisation deemed to have, on 21 April 1981, imposed the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that the said John Richard Thurecht. failed to join in industrial action om 13 February 1981 and/or on 24 February 1981. Is the defendant organisation guilty of the offences charged or either and if so which of them." The mere fact that a persom is the Secretary/Treasurer of a State Branch of an organizaiom of employees registered under the. Act clearly is not sufficient to make statements by that person binding upon the organization as admissions. Further, in the- present case, there is obviously insufficient evidence to establish, either directly or by necessary inference, that the Queensland Branch. Secretary/Treasurer of the defendant organization was specifically instructed or authorised to write letters "C", and "D", or letters to like effect, to Messrs Bryant and/or Thurecht. Questions 1, 2(a) and 3(a), therefore raise further questions as to whether, under the Rules of the defendant organizatiom,. a Branch Secretary/Treasurer has a general authority toa notify decisions of a Branch Committee of Management under Rule 76 ta the member or members affected and, if so, whether such communications are made on behalf of the defendant organization, so that statements made therein may be attributed to it. The issue raised by questions 4 and 5, i.e. whether under the Rules a Branch Committee of Management acts for the defendant organization in making decisions under Rule 76, falls conveniently for consideration at the same time. Again there is no suggestion that any other body within the defendant organization. authorised or sanctioned any decisions made by the Queensland Branch Committee of Management in relation to Messrs Bryant and Thurecht. On the contrary, the defendant organization's federal management discountenanced the decisions. Since it is apparent that at least questions 1, 2(a), 3(a), 4 and 5 all depend on the meaning and effect of the defendant organization's Rules, it is appropriate to proceed immediately to ascertain what those Rules provide so far as may be material in these proceedings. The defendant organization is divided by its Rules into Branches, each of which is required to elect its own officers and conduct its own business in accordance with the Rules. The Branches are subject to overall federal control and direction except in matters affecting members of the Branch only, in which matters. each Branch has autonomy. Where overall federal control exists, it is exercised by bodies. on which each Branch is represented. and the Rules provide for Branches to be informed of and involved in federal decision making. The highest authority within a Branch. is the Branch general meeting. Its decisions are required to be obeyed by the Branch Committee of Management, which manages the Branch and is one of the bodies in which management of the defendant organization is vested. Provision is made in the Rules for Branch. Committees of Management to meet at least quarterly. Express provision is made in the Rules for the position of Branch Secretary/Treasurer. The powers and duties of such an officer include the admission of applicants to membership to, and the receipt of notices of resignation from, the defendant organization, and not merely the Branch, together with the various powers and. duties set out in sub-rules (2) and (3) of Rule 41 and Rule 60 which respectively provide: "41,.(2)(a) All subscriptions shall be payable to the Branch Secretary or Treasurer --- . Any member who has failed to pay his subscriptions or the . requisite portion thereof by the due date shall be unfinancial and if such subcriptions or portion thereof remains unpaid for a period of three months the member may be sued for recovery. (3) Arrears of subscriptions or any amount owing in respect of fines and levies, may be sued for and recovered in the name of the Association by the. Federal Secretary/Treasurer or the Branch Secretary of the Branch. to which the member in arrears is attached upon giving the member fourteen days ' written notice in which to become financial. 60.(1) The Branch Secretary shall - (a) attend all General Meetings and Committee of Management meetings of the Branch and carry out the instructions of such meetings having regard to the objects of the Association. (bh) attend to all correspondence ¥Yeceived. by the Branch. (c) convene meetings of the Branch. (d@) ensure that the Minute Books of the Branch are: kept. (e) issue the Annual Balance Sheet and. Report. (f) receive all moneys due to the Association from the members. of the Branch and keep records of moneys received and issue receipts for the same. (g) keep a Register of the names and addresses of each member in the Branch and supply a list of the same to the Federal Secretary/Treasurer upon request. (h) no. later than 3lst December forward. to the Federal Secretary/Treasurer three copies of audited Balance Sheets showing the , true financial position ef the Branch for that year. (1) keep an account of all petty cash expended. (2) The Branch Secretary shail be entitled ta speak and vote at ail meetings of the Branch. (3) The Branch Secretary may sue any ' member of the Branch on behalf of the Association for arrears of subscriptions or any amount owing in respect. of fines and levies in accordance with Rule 41." The collection and utilisation of the defendant organization's funds is dealt with in a number of provisions. Reference hag already been made to. Rules 41 and 60(3). Rules 42, 43, 62(1)(i) and 67 respectively state: " APPROPRIATION OF SUBSCRIPTIONS 42. (1) Subscriptions shall be collected. by - the Branches in- accordance with these Rules: on behalf of the Association. (Z) Each Branch of the Association shail contribute to the Federal Council such percentage of the amount of subscriptions collected as Conference from time to time directs. ... - LEVIES ~ 43. (1) Conference or the Federal Council of the Associatiom shall have the power to impose a levy on all members of the Associatiom for the purpose of carrying out all or any of the objects of the Association provided that the maximum amount of levy in any one year shall not exceed the sum of $10 per member. In imposing - a levy, Conference or the Federal Council shall determine the time and mode of payment of such levy. (2) Any member who has failed, by the due date determined under clause (1) of this Rule, to pay a levy imposed by Conference or the Federal Council shall be deemed to be an unfinancial member until such time as the levy is paid. 62.. (I) The Branch Treasurer shall - com (1) pay to the Federal Secretary/Treasurer each quarter the amount payable by the Branch to the Federal Council from subscriptions collected on behalf of the Association. . 67. (1) Each Branch. shall have a Branch Fund which shall be Managed and controlled in accordance with the Rules. of the Association and. decisions of the Branch and which shall consist of - nae (b) che amounts of entrance fees, subscriptions, fines, fees or levies received by the Branch, less so much of those amounts as is payable by the Branch to the Federal Council pursuant to Rule 42; 7 en (2) Branch Funds may be applied for the following purposes — (a) paying the necessary expenses of management of the Branch." In my opinion, this abbreviated analysis of the defendant organization's Rules reveals that Branch functions are not confined to matters in which Branches have autonomy but extend to other matters in which the Branch represents or acts on behalf of the whole defendant organization. Branch officers and bodies similarly have dual roles under the Rules. Once the structure provided for by the Rules of the defendant organizatiom is recognised, the conclusion that action taken by a Branch Committee of Management under Rule 76 is taken by the defendant organization seems. unavoidable. Whatever its other rales, each Branch Committee of Management is the disciplinary 'tribunal under the Rules in respect. of a charge against a member under Rule 76. Reliance was placed for the defendant organization on Waterside Workers' Federation of Australia v. Burgess Brothers Cimited (1916) 21 C.L.R. 129 and The Commonwealth Steamship . Owners' Association v. The Federated Seamens' Union of Australasia (1923) 33 C.L.R. 297 but, each of those decisions relevantly depended on the meaning attributed to the quite different Rules there in question. The position of the Branch Committee of Management. under Rule 76 is not one of agency and the responsibility of the defendant organization for the decision of a Branch Committee of Management under Rule 76 is not vicarious. By Rule 76 the disciplining of members of the defendant. organization is entrusted to the respective Branch Committees of Management which are- not subject to direction or control in the discharge of that function although their decisions may be called in question on appeal. By the operation of the defendant organization's Rules, it is the defendant organization which acts when a Branch Committee of Management acts under Rule 763 cf. Tesco Supermarkets Limited v. Nattrass £1972] A.C. 153; Universal Telecasters (Qid) Ltd v. Guthrie (1978) 2 A.T.P.R. 40-062. However, it does not automatically follow from the fact that. the actions. of the Branch Committee of Management under Rule 76 are the actions of the defendant organization that every act of a Branch Committee of Management which purports to be done under that Rule is; made the act. of the defendant organization by its Rules. It does not seem to be doubted that criminal conduct is not ultra vires a body corporate so as to deny the body corporate the capacity to commit a criminal offence (see Gower "Modern Company Law", 4th ed., pp. 169-170, 207). Paragraph 188(1)(e) of the Act, to which it will be necessary to return, proceeds orm the assumption that a registered organization may act as proscribed notwithstanding that its conduct will be illegal. Accordingly, a registered organization will be guilty of an offence against para. 188(T)(e) of the Act. if those who embody its directing mind and wiIL and control it act in the prohibited manner. However, a Branch Committee of Management is not the directing mind and will which controis the defendant organization. Its identification with the defendant is dependent upon the particular appointment to perform a specific function which is effected by Rule 76. It is necessary to construe that Rule to identify the role which it gives the Branch Committee of Management as representative of the defendant organization in order to determine whether it extends to the making of the decisions relied on against the defendant in these proceedings. Compare the Waterside Workers' Federation Case, supra, especially per Isaacs J. at pp. 137 and 138: The Commonwealth Steamship Owners' Case, supra, especially per Higgins J. and Starke J. at pp. 315-316, Coal Miners Industrial Union of Western Australia v. True (1959) 33 A.L.T.R. 224, 227-228, 230, 231; and Williams v. Hursey (1959) 103 C.L.R. 30, 81-82. Wherr a member is charged, decisions are called for not anly as to the existence or non-existence of the conduct the subject of the charge but also as to whether the conduct falls within the categories of behaviour which attract punishment under the Rule and thus whether the charge is within the Rule. The defendant. organization is called upor to decide all such matters by some method. Such. decisions: may be correct or incorrect; valid or invalid. Although the language of Rule 76 is not without its difficulties, in my opinion all such matters fall within the scope of what fs delegated to a Branch Committee of Management for decision. Of course, the Branch Committee of Management cannot give itself jurisdiction by an erroneous decision that conduct is of the character proscribed by the Rule but no more could the defendant organization itself do sco. Whatever scheme be adopted, questions. of validity or invalidity will remain. All that is presently relevant is the determination of the nature and extent of the decision making power committed to the Branch Committee of Management by the Rules. The correctness or incorrectness of the view is of considerable importance. The charges laid against Messrs. Bryant and. Thurecht were patently beyond the ambit of Rule 76 . Because of the operation of para. 140(1)(d) of the Act, no rule of a al registered organization could validly empower the imposition of a penalty upon a member of the organization by reason of the circumstance that the member refused or failed. to join in industrial action. Rule 76 accordingly must at least be read down so as.not to apply to non-compliance with decisions requiring industrial action: Cook v.. Crawford (1982) 43 A.L.R. 83, 148-154. Further, itis im any event clear that there was no decision binding in accordance with the defendant organization's Rules which required Messrs. Bryant. and Thurecht to cease work on 13 February 1981. There was no relevant decision in connection with a stoppage on that day except that taken at the Toowoomba meeting by some- members of the defendant organization and some members of another union and it. was common ground before us that that meeting's decision had no status under the defendant organization's Rules. , It ig unnecessary to consider the position in relation to the stoppage on 24 February 1981 since it had no application to. Mr Bryant and the Branch Committee of Management did not deal with it separately in connection with Mr Thurecht; the only decision relied on by the prosecutor was one to fine Mr Thurecht. a single sum by reference to his conduct on the two occasions. Such a decision is not severable and would he unavoidably infected by the absence of a binding decision on 13 February 1981. Nor is it necessary to consider other matters raised by the 'defendant organization; for example, the absence of any evidence concerning the convening and holding of the meeting. Any decisions of the Branch Committee of Management on 21 April 1981 were therefore demonstrably invalid. It was beyond its power to decide that Messrs Bryant and Thurecht were guilty or to fine then. However, it was within the scope of its function as the disciplining tribunal under the Rules to adjudicate on the charges and indoing so At acted for the defendant organization: cf. True''s Case, supra, at p.228.. Any decisions made by the Branch Committee of Management on 21 April 1981, although invalid, were decisions of the defendant organization. In ny opinion, the prosecution proved the making of such decisions by letters "C" 'and. "D". The view has already been expressed that statements by the- Secretary/Treasurer of a Branch of a registered organization cannot, without more, be attributed to the organization as admissions. Whether particular statements can be so regarded falls to be determined by reference to the particular context and circumstances, including the nature of the statements and the purpose for which they were made. The scope of an agent's authority is. determined by the nature of the agent's duties: Australasian Brokerage Ltd v. Australian and New Zealand Banking Corp, Ltd (1934) 52 C.D.R. 430, 450-451. Rule 76 of the Rules of the defendant. organization envisages that any Branch Committee of Management. decision adverse to a member charged will he communicated to him. Such an implication is necessary in order to ensure the efficacy of the member's right of appeal, and is supported by other considerations including the provisions in the Rules for enforcement of any decision not complied with. Although a member charged is entitled to be heard, the Branch Committee of Management need not, under the Rules, announce its decision in open session. The general administrative role and the express duties of a Branch Secretary/Treasurer under the Rules justify the conclusion that it is for the occupant of that office to carry out suck communications as are called for consequent upon or incidental to Branch Committee of Management decisions. Admissions made in the course of that duty are therefore binding. Where, as under Rule 76, a Branch Committee of Management represents the defendant organization in making a decision, the Branch Secretary acts on behalf of the defendant organization in the execution of his or her ancilliary task of communication of the Branch Committee of Management's decision and the admissions are accordingly binding on the defendant organization. It. follows from what has been said that the letter, annexure "C", contains admissions binding on the defendant organization that on 21 April 1981 it made a decision that Mr Bryant. was guilty under Rule 76 of failing to comply with a decision binding on members in accordance with the Rules of the Association to stop work on 13 February 1981 and fined him $10.00, and that the letter, annexure "D"", contains admissions binding on the- defendant organization that om 21 April 1981 it made a decision that Mr Thurecht was guilty under Rule 76 of failing to comply with two decisions binding om members in accordance with the Rules of the Association; ene to stop work on 13 February 1981 and the other to stop work from midnight 23 February to midnight on 24 February 1981 and fined him $20.00. However, it also follows from what has been said that both decisions were invalid. x Although in view of the conclusions I have arrived at in relation to questions 2(b)(iv) and 3(b)(iv), it is not strictly necessary for me to express an. opinion, I am of the view that the fact that the decisions were invalid does not mean that para. 188(I)¢e) of the Act was not breached, and I agree with Lockhart Jd. that, insofar as Squires vw. Flight Stewards Association of Australia (unreported 18 August. 1982) decides to the contrary, it should not be followed. The many arguments by which the prosecutor sought to meet the position if the Court were of a different opinion do not call for discussion. Eurther, in my opinion questions 6, 7 and 8 do not arise and question 9 should not be answered by this Court but left to me as the trial judge. The answer to question 9 is almost certainly but the inevitable consequence of the answers to the questions which have been decided. An affirmative answer to questions 2(c) and 3(c) was not opposed. if they arose for determination. The critical questions, therefore, are questions 2(b)(iv) and 3(b) (iv). It was common ground between the parties. when the case stated was argued before us that the informations and summonses relied only upon the making of decisions by the Branch Committee of Management on 21 April 1981, and not the communication of those decisions, as the imposition of penalties by the defendant organization. That, and again I understand that there was no dispute between the parties, was the reason why letters "C" and "D" were tendered on a strictly limited basis and not "as proof that decisions made were communicated to Mr Bryant or Mr Thurecht. No application for leave to amend to rely on the letters as proof -of the communication of the decisions as an element in the allegedly offending conduct was made at any time, nor could have been allowed because of the period which had elapsed before the charges were brought on for hearing: that was acknowledged by the prosecutor. Consistently with all of that, questions 2(b)(iv) and 3(b) (iv) each ask whether the "decision" constituted the imposition of a penalty within the meaning of para. 188(1)(e) of the Act. In the circumstances, it is in my opinion impermissible to answer questions 2(b)(iv) and 3(b)(iv) by reference to not only the relevant decisions but also to other conduct, notably the communication of those decisions to Messrs Bryant and Thurecht. Caunsel for the defendant organization argued that it had not been proved that penalties were imposed since, whether or not the imposition of a penalty occurs at the point of communication of a decision to impose a penalty or some later paint, in. his submission, no penalty was imposed merely by the making of the decisions. In my opinion, that submission is correct. Indeed, the position which it involves seems to me to be the corollary of the reasoning which justifies the admissibility of the letters "C" and "D" as evidence against the defendant organization. They are admissible, in my opinion, because the Rules implicitly require that any decision to impose a penalty will be notified to him. It is at that point I consider that the penalty is imposed. Some confirmation of this view is to be found in the ' relevant similarity of language between para 188(1)(e) and sub-s. 191(1) of the Act. —" In my opinion. answered: Ze (a) (Bb) (1) (ii) (aiiy (inv) (ce) 3. (a) (b) (1) (ii) (iil) (iv) (ec) 9. the questions in the Case should be Yes Yes No Yes Yes No Unnecessary to answer Yes No Yes Yes No Unnecessary to answer Unnecessary to answer Unnecessary to answer Unnecessary to anawer Unnecessary to answer Unnecessary to answer This is a matter for the trial judge J certify that this and the Aas preceding pages are a true copy of the reasons for A judgment herein of His Honour Mr Justice Fitzgerald feke Dapeiore Associate Dated 27 Jet CIES