CATCHWORDS Industrial Law ~- Union rules - Conciliation and Arbitration Act, 1904 s.133(1) (db)—- Whether directory or mandatory - Whether any flexibility in statutory period - Whether court has discretion under s.140. Conciliation and Arbitration Act, 1904 s.133(1) (db), 140 Acts Interpretation Act, 1901, s.15AAa GEOFFREY DAVID ADAMS v. AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION N.S.W. No. 10 of 1984 Beaumont, J. 21 March, 1984. Sydney. The Queen v. Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section (1960) 103 C.L.R. 368 - con. ) ) NEA SOUTH WALES DISTRICT REGISTRY ) ) ) INDUSTRIAL DIVISION N THE FEDERAL COURT OF AUSTRALIA Led N.S.W. No. 19 oF i984 BETWEEN: GEOFFREY DAVID ADAMS Applicant AND: AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNICN Respondent ORDER Judge making order: Beaumont, J. Date order made: 21 March, 1984. Where made: Sydney THE COURT ORDERS THAT: 1. I make orders in accordance with paras. 1 and 2 of the order to show causa. ent ry un hd [or i Fa fa la] (a) Oo 2 intF it [o) F] 'y (3) (7) Fi tw i yay iat N.S.W. No. 10 of 1984 BETWEEN: GEOFFREY DAVID ADAMS applicant AND: AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION . Respondent CORAM: Beaumont, J. DATED: 21 March, 1984. REASCNS FOR JUDGMENT This is an application for declarations brought pursuant to s.140 of the Conciliation and Arbitration Act, 1904 ("the Act") alleging a contravention by the respondent of the provisions of s.133 (1)(db) of the Act. The applicant, a4 member of the respondent which is an organisation registered under the Act, applies to the Court pursuant to 5.140(2) for the following relief: . "lL. An Order that Rule 2 Part F of the Rules "sof the Organisation:- PN (a) is contrary to or fails to make a provision required by a provision of the Conciliation and Arbitration Act, 1904, contrary to Section 140(1)(a) of the Act; Organisation from observing law, contrary to Section 140(1) of the Act; and/or (b) prevents or hinders members of & ( (ce) imposes upen members of tne Organisation conditions, obl:ig- ations or yrestrictions which having regard to the objects of the Act and the pucposes of the registration of Organisations under the Act, are oppressive, unreasonable or unjust, contrary to Section 140(1)(c) of the Act. 2. A Declaration that the Applicant be and be deemed to be the holder of the office of State Secretary of the Tasmanian Branch of the Organisation on and from 10 February, 1984, 3. Such further or other Orders as to the Court seems rit." Section 133(1)(db) of the Act provides, so far as is relevant, that the rules of an organisation "shall not permit a person to be elected to hold an office within the organisation for a period exceeding 4 years without being re-elected". Robert Ridley, a member of the respondent, was declared elected unopposed to the office of State secretary of its Tasmanian branch in December 1979. The term cf his office commenced on 10 February, 19980 fora period of four years, pursuant to the operation of sub-rule 6 of rule 2 of the respondent's rules as then in force. Pursuant to the operation of the sub-rule, the term of office expired on 9 February, 1984. The applicant was of State secretary of tne respondent's 20 December, 1983 i) an t ecembear, 1995. 3. ina pallot which concluded + declared elacted to the vsositrion Tasmanian branch on on 19 However, rule 2 part F of the rulés as certified by the Industrial Registrar on 19 September purportedly provides as follows: "TRANSITIONAL PROVISTONS Notwithstanding - (a) (b) the wrovisions of the rules in force immediately before the commencement of operation of Rule 2, so far as those rules dealt with the term of office of: National President National Secretary Assistant National Secretaries National Organisers State President tate Secretary; and Assistant State Secretary; and the provisions of Parts A & B of Rule 2, so far as they provide for the taking of specified steps by the Returning Officer or the State Returning Officer, as the case may be, in the conduct of an election under the Part at a time related to the expiration of the term of office of the holder of the office to which the election relates; for the purpose of the conduct of the fir alection under Parts A & B of Rule 2 for each ' st of the offices concerned, the term of office of the person elected under the Rules in force immediately before the commencement of operation of Rule 2 shall - (1) where the term of office would otherwise expire in the period between the ist January and the 30th June in any year, expire on the 30th April in that year; 1983, (ii) where the term of office wouid OLAEBYWIES SkoiyS in the period from 'the ist July to the 21sec December in any year, 24p1rs cn the 31st October in that year; notwithstanaing tnab the term of office oF the person elected to the office under the Rules in force immediately before the commencement of averation of Rule 2 is, as a resuit of the provisions cr this Greater or less than 4 vears, as the case may be." (Emphasis added) Thus, rule 2 part F of the present rules purports to extend the term of office of Robert Ridley to 30 April, 1984, a period of four years and eighty days. Tne applicant submits that, in sc far as rule 2 part F of the rules purports to extend the term of the office beyond a period of four years, such rule is contrary to s.133(1)(db) of the Act and is invalid: see s.140(1)(a). Alternatively, the applicant says that in so far as the rule purports to extend the term of office beyond a period of four years, and thereby to prevent the applicant from taking office as State secretary of the Tasmanian branch until 1 May, 1984, such rule imposes upon members of the organisation (including the applicant) conditions, obligations or restrictions which are oppressive, unreasonable or unjust, contrary to s.140(1)(c) of the Act. i 5. It 13 first submitted on benalf of the resooncent that whe provisions of 5.133(1)(do) are dicectory and not maneatory and that they have been substantially complied witn im the present case. Whether a particular statutory provision 1s mandatory or merely directory in the sense that 1t requires no more than substantial as distinct from literal compliance with its terms is, of course, a matter of construction (see Tasker v. Fullwood (1978) 1N.S.W. L.R. 20 at pn.23-4; Pearce, Statutory Interpretation, 2nd Ed. (1981) at p.163). In the present case, s.133(1)(db) provides that the rules "shall" not permzt a person to hold office for a period exceeding four years without being re-elscted. It was this "imperative" use of language which lei Menzies, J. in Shearer'3 case to describe such provisions as "mandatory" (The Queen v. Commonweaith Industrial Court; Ex parte The Amalaamated Enagineering Union, Australian Section (1960) 103 C.L.R. 368 at p.387). But the question remains of identifying the precise requirements of s.133(1) (db). In other words, does it call for a maximum term of four years and not a day more (in the sense of time being of the essence) or is there room for implication in the provision to give it some flexibility in terms of ~ time if, fcr exampie, " convenience and the desirability of avoidance of expense call for a departure from the stipulated period. —ao 6. In my opinion, the language of s.i323(1)'db) admits or no other interpretaticn than thea requirement of a tern not exceeaing four years in duration. In my view, it is not possible to <cimport inte its erorisions amy 2xception based on grounds of convenience or avoidance of expense or any other reason. Nor is there any scope for a de minimis exception: the legislature has nominated a four year term as the maximum permissible in its view and the Court must give effect to that view. The resvondent sought to avoid this construction by suggesting that a small degree of flexibility in the maximum term would not offend the policy er object of the legislation: see aActs Intrepretation Act, 1901, s.15AA. However, in the case of s.133(1)(db), it is difficult to discern in the statute any policy or object other than a requirement that the term of office shall not exceed four years. Thus, to permit any greater period would be contrary to any such policy or object and it is no answer to suggest that the legislature is only concerned to ensure that officers of organisations are not entrenched for periods which are seen to be too long in any democratic sense. On the contrary, Parliament has chosen a maximum term of four years as its means of achieving its policy or object and any attempt by the Court to extend that term would amount to an impernissible attempt at legislation on its part. I reject the respondent's primary supmission. Then the resvondent argues that, asa matter of judicial discretion, the Court shculd decline to g+rant declaratory relief under s.140: it doints to the absence of any application for relief stner than a daclaraticn uncer 5.140; that no consequential relief is sougnt under s.id¢l1 or alteration to the rules ud ie) cr rR oOfo I~ otherwise; and that the tran now attacked is a reasonable attempt on its part made in good faith with a view to minimizing disruption to the conduct of its affairs which would otherwise occur by reason of a recurring multiplicity of elections for the several offices to be filled from time to time. In resyonse to the evidentiary material tendered by the respondent in this behalf, the applicant first of all objects to its admissibility on the ground of its lack of relevance. If this evidence is admitted, a matter yet to be decided, the applicant has foreshacowed nis dasire to cross-examine the deponent whose affidavit the respondent seeks to read on this branch of the case. In Shearer's case, Fullagar, dJ., speaking of the precursor of the present s.140, said (at p.376): "The new s.140 is now, in its turn, attacked om the ground that the power which it purports to confer on the Commonwealth Industrial Court is not judicial power. If we look only at sub-ss.(1) to (4) inclusive, we must say at once, I think, that it is clear that the new power is entirely different in nature from the old power, that 1t is a judicial power in the strict sense, and that co exercise ut 1s tO ezercise the judicial power of the Commonsealth. Under the new section the Courk is not autaorized to da anything of 175 Om motion. an agplicaction may De made to 1t by a member of an organization for an o¢cder declaring tnat a rule of the organization nas one orf more or the qualities specified in sub-s-(1} of che section. When such an application is made, a duty_is cast weon the Court to determins, as a mixed question of law and fact, whether tha challanged cule does or does not »yossess one of those aqualitiss. Ir it. answers this j question in the negative, it must dismiss the application. iz it. answers it in the aifirmative, lt must maxe the declaration sought. It has no discretion in the matter. The runction which it is called upon to perioem is to hear and determine a matter in controversy, the. issue depending on antecedently existing law and fact." (Emphasis supplied) Althcugh the question in Shearsr's case was the constitutional validity of the srovision as it then stood, the observations made by Fullagar, Jd. as to 1ts5 operation should, I think, be t ts @ ab ast ) fu as decisive of the p be w sent Ia question. In the result, uphold the objection of the applicant to the admissibility of the evidence tendered by the respondent as material indicating reasons why, as a matter of discretion, the relisf ought to he declined. iIn my view, there is no discretion, at least o> the general kind now contended for, to refuse relief claimed under s.140 (see also Leveridae v. Shon Distributive & Allied Employees' 8 9 Association (1977) 31 F.L.R. 3 Maher (No.1) (1978) 35 F.L.R. 197 at p.247; Cook v. Crawrord (1982) 43 A.L.R. 83 at pp.14S-51; Weight v. McLeod, wo unreporte Full Federal Court 28 November, 1982 Smithers, dU at p.21; per Evatt and Northrop, Jo pp. 15-17) IT make orders in accordance with paras.1 and the order to show cause. i Certify that this an he preceding Dages are a irue casy of the reasons for judgment herein of The { Honourable Mr Justice Beaumont. Sse Associate Dated 2( March 1784, wo uy ci