IN THE FEDERAL COURT OF AUSTRALIA ) : ) NEW SOUTH WALES DISTRICT REGISTRY ) NSW No. +7 of 1983 ) INDUSTRIAL DIVISION ) On Appeal from_a_ single judge of the Federal Court of Australia BETWEEN 'J.G. PORTER & ORS. Appellants AND J. DUGMORE Respondent CORAM: Smithers, Keely and Sheppard JJ. DATE: 2 April 1984 REASONS FOR JUDGMENT SHEPPARD J.: In this matter I have had the advantage of reading the judgment to be delivered by Smithers J. I am in agreement with his reasons and conclusions and with the order which he proposes. | certify, that this a2c-+ho——— BOSSES pageg aeea true copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. A YL Zk, Acting Associate Catchwords Industrial - Conciliation and Acbitration Act - OK card policy - policy involving union approval before employment sought or taken by members -.vas the policy authorized by the rules of the registered organization either expressly or impliedly - construction of ruies - implied terms - policy invalid unless supported by the rules. Conciliation & Arbitration Act 1904 5.141 d.G. PORTER & ORS. v. J. DUGMORE NSW No. 7 of 1993 Smithers, Keely & Sheppard JU. IN THE FEDERAL COURT 9 INDUSTRIAL DIVISION Jude2es Making Order: Date of Order: Where Made: THE COURT ORDERS THAT: AND: J. DUGMORE (Respondent) Smithers, Keely & Sheppard JJ. 2 April rt i Lae ie tH a] 'el oO a Hed tC (or fon) cS Tw Ge) (an) rr) Hod for [apy t A et4 ia) | 4 NEW SOUTH WALES DISTRICT RECISTRY NSW MNO. 7 OF 1383 INDUSTRIAL DIVISION ) : ON APPEAL FROM MR. JUSTICE NORTHROP BETWEEN : 3.G. PORTER & ORS (Aprellants: AND: gd. DUGMORE 'Psspondent Coram: Smithers, Keely & Sheppard JJ. 2 Apr21 1984 REASONS FOR JUDGMENT Smithers J.: The appeliants are members of the Printing & Kindred Industries Union (the Union). an orqanization of emplovees reqistéered under the Conciliation & Arpitration Act 1904 tthe Act) and hoid office ain the Mev South Wales Branch thereof. Tre responéent 1s a member of the Unisn in its NSW Branch. = "~~. 1. The respondents and each of them perform uw See . » o cs ro et coor mags s th ar we ©) a id ra) OU wy th] tr a La) -3 3 4) tor gs. Sa a) fl cS t d at ou ade H rf st om) "4 ' ue S dd a nu uv an rt ay Ni Me i uy choad a ra) rt ty fra "cA 1% nh ri me aw a uw uv wD ao tv Weden : 4 Qa ie lr d » Wh fa Wo taser Wm x) Ww chy "at u moa a " a " Om bp MU et a 0 iB] rt nt Sa ts st FE ny Lt 7 S Wage 4 md : you = ca 3 tu Sra tat Ons uy ba 0) i " " HO 6 Mh w@ st qi wr a . 1 1 Or tou Ee a ron Ay 0] Wd yQ boot a vu > i m w a0 peo a tal at u th at i us ty ta dD be 2 ro ra cl a uw m i + co a) 4 wt s ba ") a hob Mm $2) Weel fe RB Ch rf ar ay our ae a u W afbet .Q a w gi 4 Sas "aah . wy oq ©) dat ty a a s el wh Ww? Ny mw buy kg bu wi uj hard tis) } un tbe "At fp us Ww a) fa 'ad = 1 muy som ch a yo dst wo ia] oy ts S's Q 3 Ssh Gigs Kd a ial " m Ne $f ra F fSedgiwu te a) we el 3 0 ty me 4 ia) Qrp cae Suir Aa Ww | el Wood sr © ts Que euw ad w 3 0 moar gt i] (hy mw cw ct a n 44 It re oat Wes ed a mo many si "Que ogsu W vim a morn u O&O Send at a uy any ¢t rl ad adobe a iy x a Wt Ww "pay DoS it 4y FM ort ia) ta Ls) "on sotucnad 5 a wm oany Hod mio eel 14 ny el Shulecl art q ia] ve Say m a ha tl df hy He oma nt} a) "4 Sa 4Y m d a vw Ord . . he wt ie wd we wid tt ma amo Ww iS) Og th if og gi 0) Wy wl Dy uj $2 I-t et ° "a HI {2 'D ct fat pa] . 4 . uv a ur rho ar fa) o ' a wl w a 34 G is d a my yn 4? : yoo ny mot nj ag ar a rm ry S Hd el wt 3 1 ot megs ad 43 . c 1" " w 10) ct so code cha a moo i) p We oa "t Oe 7 In . w pest ory or) Px oe ay oD dd on) a a cd te 4. ah gs Con oe sdeut sf At fF u a) Oy i Lo G 4 os 4 rreye aii By onl ot a FI wow on a mo gtd t mou wt fou a "a m my ba t at & raed " "1 th woo . oP) Vt at ry) en w mai 11 at 7 420) wh He D 3) . ot ay uf] Hd tT] tte) moat He m™ a ws WJ ie) a ron . el Na ag ata 0) et 3. 'U re En tat Ip + Le rn 3 n ast Mt S Ww wr ~ rm) - ata gk ci ui q Sa a . b ay tr a uw mtr ts: sharon ny uw 5 m "t weg " 4" \ - src el ne ov "t ol e Bey 1 ua ro ba c (uj oO brarord os el Sint m ty fan) im] shy im] iis] oO . $l et 7. He 4444 vu 3 i con OY) Had \ WW BK fas . We Qheert of gy ef fo 6 St w 3) up be PI se ye seu so ay ed ta i a cu " 4 a) "I a cl d in . ww re] Se hr a) wo Gal iy wo ww o r uw rf m ray uY uy w Agel Ww Sa wu? ob cd h df bax og £4 ba ba tt tm os a] Ne re oe ") ott 4 J ia ia) Mya a "| : a qr fi u co qa a Po el a fly] 11 uw u + at el te in go M tyne wert (an) oa ro tl a $a el a] ec af a qr nod oe ~ el 3 el fie toa de 'ya a 'cd re Cc st co bam rt is) wi o ol ag tt t)et m i g) qu w ] tl be - iv] qo wy i) My ri) ~ ag ef wW wo el wa rt wh u om 113 vw ne) Ow fe f- tdhood rf 10) St | w ow rd | W wh OS a) . iy et wt op wG it Hell 'a fi el nH) fy] 3 1 cal Gost g 0) it oh re] w wo ' wy ct "rl gq us) elf io dhe ci w Dy fly] 3 red Go of] a) rl ut wo i Ad 1h} ts 3 et a oc tr i xt uw os eo Eo owherd Go aw st w G LD) a da ha w up rT '| . bart Ww woot ety ord 7) cnt oe mhooors od " w 3 it on - ' Farag R os a G rn | ie] tess unMw oa wD rd rid S by Wy i} f) i- ed 4 ts ~ 9 nano wow cw 1) c ie 7 a 0 ee m owl i) cl t B mite cl m@ ri) it i] ad Wy vv ay "1 a 4? a) Hae Cy ao Na bit mic +R F ep v el i is Q a a n am wae wp y b al faba Mc. rs S| ip i Al wo u el a) m . 1 bs sel no Ofte Ow uous om us sf Sa 0 on) ct com - wv - oa eal <-el GG eter es oO a rt ' m1 d a ag rd o el tb oO Most Gee Cag gw asad CO at wa Lt rd a b 0] al i) +S) i a 3) a St "GAO do Bat Si eH oe wD ca a ints a Oo qo) K wo Sy th ra) { hehe ge eer om mt gin he 3 wv ia by a a a wv " a z - as st oo ot f) SY 2D te mw w Wd a ke tid = yt ow ie ' a wd w oI d it) w ia u 5 n cat) ay} 7 wt oo ey "i ut w La) ia) > | ha cre 0 a fi ta tf ' ra) w "I tt Li ~ hy q rary t membershig¢ If tne unicn. ROro year, ber wno, having obtained 2 Job <tr from an enclovec, nail tommence «KC 22 crhta r 3 zara Nav. RET z erful Tonsiierat Lnst ok Sun met 2x each such offen 'Ds. vy memce moloves and commenc2 WOE emcicves without fiest obrai cd, may. after full inquiry ger decaticn oy tne = sive, te fines a Sum nor exceeding ten dollars 'sia for gach gach i] al I w re] Q iD ih Ly mi Oo 4, ' "4 ' t ib anploy glove i] asn anotner mb2 ef non-member an start work in his departmenrc in 71s azz cf ameloyment to croduce to nim the 4 card cr the branch, oc on the failure of such cine: memper -MENC TO ontsin m wrcduce £5 him su card faeiis t 7 such are cretary-tel tnin ye hh hersalter, ma tall sv rerui cconsicas Ime MLLive ined sum not Ten ars «sl tor $s offence. vd. The y shail Forthwith surnnly to yomenzer arn ing fces the same at the requistersed criz ot tne branch an 3.K. card an tne fF 27 out hereunder: proviaec that sucn me at the Elm? of such apreliltaticon is nani2al member cf che Srancn.' 9n S September 1277 a meeting of the Executive ci the T- we - =f + rrKes Inn, -A34 TT = a ed -""- ~~ = es = Rat Ll Was tTeounc By the SS0NFl Juidgs IAAT Since = TSeecrSemcs— 1.3477 = am - —_ =r tres Ros =? =7 ~ "As ~ -_—< -s - L377 che Exerucive cf the Bearch, reina the 'Timmiiue¢ ci: wi a uw Ww fa a uw set ay a hi wv we a ' ra) fi] Psy bl BS) bv "a4 Ly w a uw (hy nl is c 'G cn i) i) a o Se a ta rt ta ay tr " ut a a) M4 a ny n el nm "I "9 uv et NU ay ) sougke Cc ryesponden the nm a, ES] fa) al > red im) 1S) is] ol a uv ung PYLNe w ie] on al m ba fon W a} Fe)a is) oO ny uw Sa 3 w aQo ) ie) 4) Ley wy ay a ou at ag G 1s ont a a re wy qi ba 1? ny a q wa 42 U WN nm . cl we w c "ha 2 Nw > p WW Gm uw Bey "t We ry q) oy mW a im ce tr » io] ut 7 fa] ta 0 uw is] wo ih 3 u most ie) shoo Dal Ar 1 u G st rl iW is) aa o a Poo ia) wv qd bho el tal far tt St al 1) '' wd th ur Ra} ie S: t Ww a "y s: uv ; Or is} w ba {: uu pu m a 15 - 3 bl fa) el 4) a 1 wy wy rl i " rd tr wd uw ve "a is] pa Ch on ? fds 0 Ww is) et At > b w a) 1 C a "0 C ny Pa te re) iva 3 . y ia w i] ren tt u ny (<4 c ny of wad ul ur Uy i rt mh Pam] ib qu ty nm wn bi th gr Gg gr c a ot fay Ww mn a Ha 7 " uf ha Lo ba Q) " c a roa fe he ta Ma 3 ul on ty oO af wae ha el w we ol wh ry) {. n a ue ra ws ia) n val (el au ™ bs 7 rn on oI gE i cS u ai tt aw ay w a n Ei 'ey fa ar u a uw wu a ia) st NS ts a w 4 w OQ c thi tb ra Lal fh. % a c a Q we ~} us ar w w rm) iH "t u aq % m c as i Re] a 73 G i) u a Sa a) y rn od Qo Na ba ia) got a) "4 i is) 3 m1 Sa (Lh ron ia) fa qu 4 a bh F te a a yy af a io b ood Ss ol 9) " a Wooo pf cq ie 3 iD | . st a! Ci . West Cy) o ie] d is Pe rel W tee a u ¢ '5 xe a AV ed LY 4s ia bi Aw ty ia wy a 1 Ww u $2 y ul d a uy nt om) el ny We $s n iD . ay rid vb "4 w p Wy rl as ad na a w wt fo 0 Sa w tl fa 0) fa [a] fu rt uw ial u 3 2m 44 is) io a ia) w ra] (cy wu te S o ba a 4 7] a] 3 ty a3 te uw be i as Ww thd w te w . he G uy" [ony t af a p fe 6 IQ & & ie (e) te) ct st of wn mM ha oh iz) Ue o a ct wt I m ca bea o ag dH wv Ss G&G SS G Goo W fa) qQ f Ho ha Que ws . ra ian rl u m ri ier ist) Ww "s CU ad . =4 ad) EI 4 c rt G a wood an py ann) St - el a a 3 re An "4 3] u G ny u 3 (a) S Ov) ia) wt a 1) "1 gy wt a g to ha ST d S 1) a ia iM rt o & rs) ful iy a < (() a | fi] Q . i. ch mt B Der ra) a i) My a St a G t M4 Ui fo] co wd ba n LD bry wd b rl oT | al ia) "I LD Wd cy cl te rll "i or 3 u wd sc wa ps) ia] G o G "4 (se co nf ey 3 Det aq ood d 4 Mi c % oe | 1D 12 rd ct * Sa n rl -t fo] a ce it a rd Sy a Q $: . 3 ) Dn i) [a] f) fs) a Rd) & oA) i) f. qQ wt io {1 Q (0) far a Sa u a) ha a Ut) et oO fa) a ca ct 0 cS < wn S Q st a a a mM be a rt aa d Q 'o a o "4 "hy > w ag Ne (il rl Sa w nn by Ms oC fay c m % a i] v in u fen 1) . wu t) > d 2) Qa 3 41 uy - od ray ay cq 2] u ra) 4 d bo set a Q c ol i) s a OY G ra) Ht Hh o o Fy a Qu & cy Sa '1 w ce) is) Ot w pe he =] = el oh Te a cy bp] 4 a 3 ran] n d a rt Ca) of th . u ct w n BH a Sood i=} ha G o Oo el bh oO6G Or gg oa sa 4 m Cc ot) Qn so 0 i Wed te O 4 & c fay 3) [oy x wh a Oo G G 7 ey na] thay 3 5 Fry fi a] d cy ty + ad Cf «a bia ia) wu fs) th ta W ot Si ft uf a th 42 fe Ww thet 1 Se au "a oO ' iy si t a 3) Re a rt nf be Ar im) wt " b W fio ¢ ob ea ew fk) 1 R [y wn id a wn Wy w '<] Mal st fa) "i et a a w cosig o ta ny ri) rt . 1% id . a b iv org ba rz i It Al te ogg ny] (0) ed oO abort & tl u sir 1 » ay a 4 b at a) PS - aay uD fal ad uy tan {i fe a] wk Co cal . ia 1 cal 4 61 a OU) W F io na ? ws al ny af w 3 F ut wd wma iy al t ', ny ra) a as gt "a a n) uy ny rf 1 "% W) id a fas "0 aog £ Ha ¢i ad at u rl ty 4 uw a Qo w nu a Ww 0] Sa a ft) fl go a &t ol w w st a ren p rl 4 ye 47 Sa CY ny a = ww is) Hea u wu Lo At a wt a wd fa f co ty bd «lt bY et Bur LN) w uj 1 foo a) =] Wy Oo bur a y) 4 W a rl $ae m w ww S im) Qed ca sf a c Na a tis] od =) nd £. "ct om a 1 i] w Oo oO ch wu eb Wy Fi w choot is o Gob us Po os Q i b wn d fr] Sa a w goad fa cl Q is) d oO el Oo ocd fay m .Q ur O thet 2 Wa @ 4 Ss 4) vp 'ea ia] vw Bu tao Ss a Se uw st el ui a ug =) i) mua a w $2 0) 49 fs ty w B iz) ha dd wt et ur <a AOR PE 3 aw 18 b ) d u Kg uy . di as a) mm ia) n Bt He a + ray rd fa he Q ro) > Ch oend a 3 Had Ma be, oy w Q, com Ww a a 1) or moa & 'rl uv : St ad w W ut a Qh a p a ty wy et ie) Vv ot ty a) ob? i? re i] Q a B Wy n ped a fi Wy feo ? w c io a > or hae mw fled g Da) io a ny — ma 9 i. Ut dp u 4 fa) w a cr rl may vy wl fe ha ono ct cal F; oO rt [S) o Oo * S Aw wwe ie] a x m a be Hos Ae} Wy wn q) pp 4) c a v ) = Vn as c oO w) a rt i) aon OGNMS q a 7 4 i) sel "h4 uy wt ne Pon w Ee G stoi ra QO 4 ie iy f: am vr W ot o bal cl Le a ' Ls] co ut tet w p w ut _~ n Gm » tt a 2 ao GS a - - - > 0) % ut Q fay ri vo Mm 4 w [ee] nw a EB ry m n d a ta E ity . ~ ~ ~~ : af - re) vb Wy > teh a ra SB bbs ul a fal iy a) a Ua 1 pan u a Oey bd A by cr] th c WS rer Tat oO ay oy m w . wm S 4-1 aa] Q \ u fly go LN] 4 e a a z al ™ Le La) ha el ou '? a) ft) . 0 7 a ba at my $a tt m ra) o a 0 WwW : st G wf wt ta w a a u u 2 ror wy "Wy u fo] i in) aw e a W i is) c m ot u fo ah uy «t w thr nm u At ny al ra m a a) 3 i] a 4 0 sh a =f 4) 1) O 6 ia] MQ a) a) a W iS) Wr {. s ™ el w 7) wy A 0 a ar a ie +e) Ba) 93 is) red a fr $4 a i=] % as be vb ry iy + mp . u ad m M ws si a a a Sa wy el ha w Ww n Paty toy as wh w d Qo CH At w fa) w w ie a the fit my a me = La) Me a re a) w a Gq - w rm) a "HH oO ay ww I ng fa o w tne on conduct le a ? a ES) uu ES} Ct E: n a umplementati a a Ss og or au cy miagn WNATSVELS However, c a ne) LS wv n vl a Se ly m cS ou H ty wa "a ts d cn WT narenc Tl by (3 ca) ao 6 no S a whe 7 w rth QQ al a ue 1) ta Sa i> i=) Ne) w fa ou fa) wa ns) o wm & st £ ato 4 na im) fe ty fis) tt w 5 di Q i) QO G c toy S b Ci gy @ a Lh) ha a he aa tt & t fa) v ha in nd io ty qt i rl v orl ie] rl " uo wh be co i id 1 a ol uv 3 My ve At G 1 q m mo ua m 4 w (a) Ay A Q Sy a io) & E oO Q 1S) a bi yy "HW ct a tr c S st food Qo i$ a : Sc Oo Ge a) a a ot fa) v a a p at q a fag Cl 3 uw » w ie ay pb 9 o ra u a te] a] he 3 A Wwe (a) wy G 'y) is) 3 mm Oo v w a 'd 4 a 7) Ed n i) $e 4 a fu At mn n oO Ra] c oa o BE ow dq ny dd 3 G "a ha ol . a a w Net uy a . - ad p He 2 Q "4 + i) oO he wy © p 3 & qi te ~ . 3S ff rh w a st iP) t- I~ [e) . Q wn Sa oO wv rt vy m~ OD n Wy p ao wt n o w p Q cl oe] dy wu a 'ct i] fen ay io 1 i] a ) Wt rl Dd as! W 'd Key u) in bs 3 S ts wT) v 'd J ban uw a ru} "th bad wl fo uy o n i) a a id 3 ft 3) =) b Bigot qo a ud a Oy) oO D el c n ca) Ss Rod 3] ia] w ro) id ay el cg al ol < wo "a, om Qo . g ful Lb a m1 el n tm Sit al a GS ta w Wy Sood \ rh Oe Sh fo a (a) a a " rs) a a (oon Lo cond a BS] is el a a x tad [iS trel oO et om a cn WG oon m ef ua . ag Se My [oy rd yp ha {2 wy wv m Ma] A Pu 4 a) 0} w 4 w a om) would & a 'This NEW ti ali Ss 5 and lLais. 7 1 a adh to continuing the use our Ss.' er rr mhip :3 1D ry, i "ty c it {-"a ' H iD } in the Union icurnal, notices relating to the colicr cr which the Zclilowing 15 an example: - OK CARDS "The attention or ail vules anc solicies B na amploymenc. Canvassing of joks 21s vot permitted and no member shail start work without an CK card. ' Te is co be noted also that the membership cara issued to the cesgondenr in 1980 is encorsei with what are called "notices" reading, 'De not answer advertisements Or ranvass *3bs' and "App fre your O.E. Casd beroce starting doubt that the EZranchn Enesutive citicraily decriied chat notwithstanding che decision in 3 'SuRLR) the obactices previsusly trotaining cursuant tl yules ~ vhe Executive and according Executive. The yustilticrzatisn fFary tals thers was a detisicn sf WLLL ott ecurse was, &5 ctt, nat since MP RYAN: In this unicnr. as I said bercre C1 case struck them down, 15 was more tha committed the unien ro direct emrlevess were alicwed to cresent vacancies ur th Sreade, so cthac b presenting' for B pacticular 'vacan member had to obtain an GK card. SHEPOARD J: For a 19Dn7 MP RYAN: For &% job. adiressed in effect tc the proseective employes. SYEPPARD J: Is that the vcolicvy cinev rmani oto implenent? MR RYAN: Substantially it is the VV. Dat = say the criticsl dairtterenc BS och ne longer seek t2 implem B= 2 cube With the consequences of a ruis. They simely = it woulé bs desiraple if members <tiontinus before apelyving for a qjck, t2 ctrvain ine cara, Wa saiverate thal tne xcractice continued, pus we san silenti: canne anything about it under the rules. "Ty rs Q A ct re (D Wiw et fa ct i) At bo) o a fa Ps ct t QB ray) mb re)pu oD He n a H cl te tn iv) t= ch ry ty The union av was that werisrity should ba given tc: cancies in the Litheerarniz section tr these whe nad come up thysudn the ranks, 4S 1t Were, throudk th secticn and the indication was OF cards 114 not be given cto Ms Suamore or those x= rim while ccher metoers of the unicn, as tha union sawit., Rad prior ciaims <9 those yacancies were unemployed. That is in erfacr che wi c obtained ana a practice whi s . could 5b ced by cescr bal = before €& was struck rs n Cla 2 cas2, but withstanding that striking down the on has continued to advecats it aS & Gesivabie wractice, one thar had bean stcipped, as we perceive, of its Legal sanctions. TZ all that is done, a5 we suc it, is to endeavour br moral persuasicn to seek the adcption of a particular ccae of sonduct ar policy. thsn rules of their nature can have nothing to say one way or the other about eB} "photoqravurs' classification from werting in lithcarashic printinc. Te 1s to be observed that Faderal Rule 58 srevides:- "¢*]) BR mamber havina gained admission to the Unien cthrouqgh one section of the Printing and Kindred Industries Unicn shall onor be entitled to work in any other section without having first obtained the rcarmission of ths Board of Management of the Branch where such member mav provnose to work. :2) Any member acce Tq section of the trade és than he has been admitted & member shall render himself ineligibie to centinue his membership of the Union un ne First oroduces to the Secretary cf ti Branch to waich he 15s attached, such eviden aS Mar required and satisty the B8sard a or the BSrancn cf his competency and cerrora such cther emelcevmenc." The membership card of the respondent 1s endorsed "Suneravure Led - Membershir Ne. 80062 - Clagssificaticr ...'. Presumably the axpressron "GF" neans 'coerative'. Tt 15 cmplisd in v.52 tha R perscn ccmpstenc to a io} m ts pct) ct n t pa] My uw a oO a Bs o oO a1D bay ut (> fi+] ts ab wl ' ifyct uy th x re] i o " tT ke Las) (0) of the competence of tne respondent «tc work as & lithoqraphic printer. The claim of the arreilants is that competent or incompetent. hi mot seek or take a =f fu '¢ employment as a Jlithedrapnic printer cr any amployment without first having obtained apsroval of the Union in respect thereor. Accordingly, ».&2, even if in respect or the issue of an OK card in respect of any proposed amployment 15 in the unfatrered discrerzon of the Unzen. of in practical terms the executive of the membershin of the Union depends. Zt anacies the to Ee emplovec. The aumpiicatisns of tnis xcolicy in conditions of Zuli amelovyment qo ce tne Fundamental ey0 ci) j (9)tr a a i i ra a m ihiy1 }ce n ul ral ty a my, re) & ray) J a a+i] another implic f general express Ct t au cher peters Lty fr "Tf the rules on tnelr crue cometruction empower the organizaticn ... to make a levy for the assistance of e eclitical carty ther that power must be cegarded as derived from the Act. ... The acct and the requiations expressly permit the cules or the organization to provide for "any other matter not contrary to law'. Whatever may be the scope of che words "not contrary to law" 12 is clear that ut is not and never was contrary tc law or forbidden by law that any person should engage in rolirical activities. Theres is of course one cther limitaticn so the vowers which a registered orzyanization may take tc itself by its rules anc that 1s that nothina is permissible which would tend to frustrate the policy and main puroose of the Act. Compare Australian Workers Union v. Coies (1917) VLR 322 at op.336 and 337. But that limitation is not teansaressed by 2 rule which «ives & power to use funds for political purposes. The spsolication of funds for the support of a nolitical party. is ... a traditionally accepted means of "furthering or protecting che interests" of members of an association of vorkers of emplovers". Speaking of organizations registered andes Act his Honour said at ¢.eB:- "Tt has been acceptea ever sinte i906 thay tne Commonwealth may create such corperaticns and iui it can creats tham, it must be abkie £2 define thers rovers. Trey must ne asscciations of smploysses cr amoloyers Parmec for tne xsurpose of prctectina and advancing the interests cf their members, ani no season mists for Ssavine that chevy cannst se emeowerel tc da anytning ('not contrary «2 law" whicn is calculated to protect or advance thes interests - tt engage in propaganda by means oF A Nnevsparer, Cr contribute to the funds cf a occlitical care favourable c2 these interests. '. , aT rg th yvyoovircue of reg.i15 '1)(>) oF the Cencrisation and Arbitration FPeaulations it was & jcomadition oF reqistration cf the organication, when arsiicaction was regulations, as indicated by Fuilagar J. in Wiliams v. Yursevy 'supra) ain the foregoing passaces, the adortron the quality of an activity of Branch manacement Tor amplovees ain the categorres of employment relevant tc elicibility for membership therect. Whether it has that quality is the central issue in wns case. wnether the voolicy is ccntrary 'to law. Requiaticn 21S(i)(q@)} authorises the organization te maze fules which 15 not centvary to law. Tt is net sugcested that am activity contrary to law is taleranble merely Derause 1t is carried out sursuant tl a gclicty vather than a Iw ma ruie. Buc oF course neo oolicy may be adoprea ze 25 authorized br R& rule. Ani unm tnis case the authorising rule is said tc bs the management rule. Tf that rule permitted the manavemen2 committs¢ cf anv other body cf the Union to adopt and implemen 2 policy contrary to law or contrary te a law 'see s.i40(1)ta) of I the Act: 1t would to that extent contravene ¢.140(1) of rule of the organization: ses Shearer Cook v. Crawford (supra). The policy is one which operates in restraint of trade, and cin my view, in 5) unreasonable restraint of trade, but it would seem that rt oucht not merely for that reason to be recarded as contrary to law or contrary to a law. As was said in Buckley v. Tutty (1971) 135 CLR ar <«.280, "the iaw treats unreasonable restraints as unenforceable because 1t is contrary to the public welfare that a man snould unreasonably be prevented from earning fis iiving in whatever lawful way he chocses. ...' It was saia Py Et. John J. in Clark v. Printing & Kindred 2ndustries Unicn 'supra' at p.62:- 'If 'the law and a law are distinct in meaning. apart From che fremer being used generically and the iatte:s specifically, it 1s hard te ses the distinction. To my experience the words contrary to 4a iav ina scatubes are veculisr <2 thas Acc. Buk at ke 'oO lsast 'contrary ce EN Law' Lmperts proscription or prohibition of toncuct in the law veferred cto by the use or the wvoras 'contrary te. Ic does not, readily at least, fail into use to describe a rule of law which in effect says thac the law aces not prevent one ena@aqding in certain conduct but will not assist one if one does se engage. , In this cespect the doctrine cf restraint of trad= ain trade unton rules. was before in the Act in the same category as the 'gentleman's agreement' in which the parties have no intention of entering inte a isgal contractual relationship as in the ciassic case cf Balfour v. Baifour £19193 2 KP S71. Rather than being contrary to law' the contract in restraint of trade is within t law in the sense thar it is not proscribed. ti a mn fu (0) fu) zg m ts wD ip) rh ct ox Nevertheless the Judges in Clar opinion that rules 7 and 10 imposed conditions on members which were unreasonable and oppressive (Dunphy J.): unreasonable dictatorial and oppressive (Joske J.;: or oppressive or unjust (St. John J.). Rules 7 and 14 thererore contravened the provisions of 3.149 the Act. It follows that 1f the management rule read in conjunction with the objects of the Unien would on its proper construction authorise the a&dopticn anc Lmplementation of a policy which operatec in tne same way and t> the same effect as rules 7 ana 1¢ then that rule woule be, to that extent, in rantcaventian cf L40(1''c: of the Acr. tt is my view that the manaqwemenc rule is meu ic be so construe?. As has been indicated, che rules of forbia the adopticn and impiementaticn of the policy in question. But they de ciathe the management Lodies cf the Unien, including the Branch Executive, with management powers. Federal v.50 nrovides:- "(i) The powers anc duties of a Branch shall be to take such steps as may bea necessary tc carry out the rules and objects of the Union as well as the rules and obiects cr the Branch. ... Such yowers and duties mar be exercised by the Board of Management af 4 Branch subject to such control by the Branch members in General meeting (or in aggregate meeting, annual conferences ocr so0eclial conference as the Rules of the Sranch mav provid= ain lieu of a general meeting', or otherwise, as the members of the Branch may provide. ... In the construction of this rule ain ceniuncricn with the obiects of the Union as set forth in r.32 1t 1s to have reqard 6 the nature or tne releyv ty a a organization. It 1s one of those organizaticns referred to by Fullaqar J. in Williams v. Hursev (suora) which is formed 'for the furtherance and orotection of the persons whose reason for heing members 1s that they arz emplovees in one of the reaievant occupations. Theis the: individual rights to Zeek and tare employment Where 1t is avariable. Teo as their status as working employees which provides point anc anisrest to their membershio. At first sight. therefore, the notion tnat ct 0) a surrencer membership will involve and take emplcyment is somewhat startl authcrised c is) chat management is a che With a Ss clear that there must Laimatation in the power of manavement that any restriction on the right of me search and or their to acceptance Management may see fit to impose on the around that in or within the DOW: 1s, however, construction construction ing. construed as be ad o¥qanization as a corcroration created by law for speci fu - ry) D als bo is) rt surposes and subiect to special corditzons: 5 ot) In the construction of the ciles or th organization it is vermissible to take into acceunt that the Australran Industrial Court (Smathers, Woodware and St. John JJ.) made the followina observations: - "That the rules have a consensual basis before registration cf an organization is perfectiv clear. ... it appears tous that the rules retain a consensual element arter vegistration, even though the character of the organization may have changed from an unancorforated association to a corporation by the avent of reqistratzion. It alsc seems clear that 5.141 is designed to suprlement the member's power of enforcement uncer the common law and therefore, 1f the requisice eroprietary interest resided in the memoer, proceedings at layvor in equity would be wallable to him after registration. Dixer J, seems to have nad this in mine in Ex parte Barrett, suora, where (1945: 70 CLR at 154, he said: "The attack upen the section depends upon the view that it undernaxes to confer upon the Arbitration Court jurisdiction to enforce the rights ef members under the rules of an organization consiaered as a contract inter socios, @a@ contyact inter s2c10s deriving its oblicatory force sicher Irom the common law qdoeverning voluntary asecc1rations, as modified by such iegvisiation as the English Trade Union Act L871. ..., oF From registration under Stace legislaticn of that icind." aivindg quoted Is la Nowhere in the decided cases 1s there any suggestion to the contrary of 'the view Ean the rules, at least for purposes of construction, whatever the position may be as to enforceability. should be regardec as a contract between members. In Hay ov. Australian Workers Union 53 CAR 108, t'Mara J, in an application under 5.58& of the Arc. as 16 was in 1944, examined the cules of 2 respencent organization ta discover whethec there was anything which "either expressly or by implication prohibits of invalidates 'the action which was taken with respect <a the nominations". This aprroach as not reen dissentsa from in any decision of this court and there have been many cases, for examrie, in which requirements of natural justice have been aumplied into rules. However, ait does not appear that the approach taken by O'Mara co. or any similar approach, has been the subject of attention by the Hich Court. Nevertheless, we are clearly of the view that such implied terms can arise in pronrer circumstances and, if they do. implied terms can be the subject of directions pursuant to 3.142. s should be aia down in 78 SP (NSW) In considering whether te implied we follow che test Heimann v. Commonweaith (193 691." ed to a submission mace '2 nim on benaif ot ant. that from tne fact chat the Auscraiian rral Court had declarsd <inar rules 7 ans vened 5s.140(1) of the Act, there should re ins rules of the Union a provision that the members ficers or the Branch weuld not engaqce itn conauct effect to the OK cara system. The observati above from Gordon +. Carroll 'supra) were rei foc the proposition asserted. Cleaciy that doubt was well fcoundedc. His Honceur added, however, in genecal Act. But 1t would seem thar this general obse not to be understood as an 6cindication that the true fr fu ra meaning of rules is not to be gathered from the liter meaning of the words used and what is seen to he amplicit in them having regard £o relevant circumstances. Indeed in discussing the powers of the members to adopt resolutions instituting the volicy in issue in this case. his Honour said:- ' "In the present case the pover of the members of the Branch tc adopt the resolution s determinina policy, must be founda in the rules of the Union or cf the Branch. The power may arise from express cules cr by implication." As sointed out by Beaumont J. in Jess ve. Scott & Ors (No. 1 of 1984, 2 March 1984) unreported, tne problem is alwavs to ascertain the meanine of rules upon therr true construction. As to the veneral chservation oF the learned trial judge, he saia:- cks were made ofiter Sut, ain any By these cpservations his Honour meant no more than that a remedy uncer s.idl 2s mot availiable where the ssurce sr the vight sought to be enforred is the general law as distinct from the operation of the rules on their true construction, I would respectfully agree. In particular, I would agres that s.l4l cannot be invoxed in aid cf an equity which exists independently of the operation or che rules an the1r crue construction." In the proceedings before Beaumont J. in which those comments were made the applicant sought to restrain the expenditurs of Union funds for the support and candidatur2 of one member in an election to office in the Union. It was obiected by the respondent that there was no cule rest¢aining such expenditure. His Honour "In my opinion, these rules, as a matter cf construction, shouid be construed to mean that there 15 at least implicit in them the usual abligation that all such powers shall be exercised bona fide for the benefit and in the anterests of union members as a whole. In my view, such an obligation 15 cerived from the meaning of the rules as a matress of their true construction: it 15 not derived from and does not have its source in any independent equity or any other right which may 2x ist under the cenesral law. ruie 15 something distance Foem its ittesal meaning bis BKonour referred co Naurili Pts. ve. McCann (1952) 90 CLP The the powers ci the adoption subject of be approached upon their Seccndliv. bv adoption and implied. question whether there in Codella Constructions Authority of New South Wales 26. is a lim2tation upon pursuant to which nanaqement the Union and aumpiementation of the volicy the beyond those powers, mav by First by enquiring what the rule w provid a true construction enquiring whether a term forbidding the implementation of the policy 25 t3 de is convenient to pursue the second avenue pointed out by Mason J., Perv. Ltd. (1981) 56 ALOR 453 at »464 'Ss affects tne construction of contracts is that upon the the parties. accepted, as construction presumed intention of that account intention when wheather a (Codelfa) that presumed, term is the evolution of the law as it it centres rather than the actual intention of His Honour observed that once it his Honour does accept, of the contract account the sarties, it naturally follows should also be taken of their the Court ius called urcn to decidein accordance with this an inpiied than chat 27. (1333) 38 SR NSW 691 at €95, which confines recourse to the aintention manifested bv the express terms of the contract. It, therefore, one were to treat the construction cf the rules, as 1f they were but the tarms or & contract, 1t would at least be permissibie to apply the test eropounded br Mackinnon J. in Shirlaw v. Southern Foundaries (1926) Ltd. £19394 2 KB 2066, that the implied term, if it exists, 15 something "so obvious that 1t qoes without saving ...". Compare the cemarks of Mason J. in Codelfa (supea) at p.461. It was pointed out by Mason Jd. at p.462 of Codelfa (supra) that for the purpose of construing the terms of a contract, althoudn evidence of prior negotiations and of the parties' tntentions is not admissible, evidence restricted to the factual backaround known to the parties at or nefore the date cr the contract. including evidence of the "genesis ' and obiectively of the "sim" er the transaction is admissibie. These observations in associaticn with those of Lora Wilberforce in Liverscol City Council ov. Irwin £1977] AC 239 at 284, as to the necessity of reading intc the contract there under consideration, that which 'the nature of che contract itself iumplicitly requires", wouid appear to supoly the test as to the istence or otherwise cf an impbscat i) M in the rules of the "Union that the powers of management were subject to a limitation excluding from sucn powers a] is] pea le a4 ag pp am the adoptio ana implementation of ch te o ny m4 Ww m gt a Hd uw r . we a Ww ' up wt Lv) FJ ot ov) 1 Ss st oO i) et AT "i mM. ra ay a 4? m w a y t i) a ed 9] w wa wd che ut R c ") 1? a] w ha we Rm ai Ly y "i D -t uy , t 'a ul fl m rey ba mu 1o7 " wv qr > ' or $e fy tu ts oro a 1} i a a) ba Sa "a w fm) ot ty ons) ul dl t at fy ba tft 10 "A tt uu tt ial rd . Lt) ny w ad a i Sa 2 - ace WATS ay , ' . . ' ca) ae iG) ue On u t 7] o ia i ) Me lt a H ay ng ee On it ") i eel af m " a ay mr » uy m moat ut te f r?) th Ww m "1 1) 4: Pz " ha & a Le ct nt ru fd st a ca am i) ia i Se ty fi Ct . ty 3 ra Hd "t a a a chy nm $2 . rf {0 wy Wy iO) Fi he a ur i ivi 7 n MM [oy a o ut Wy) <l te s° et 0) aot Sa Oo a tr > i ri ue a bet G ny ta ue a4 s! . rey "! 'i ad ws 0 w a m u' ue tm ay ") Ce) of 7 u st Sa "4 "a . $0 a ha dl ay ate ra 5 n 4 5 is) w u2 a ty a a % 5 i nD um fa) 0 w ul uw 5 a tt fa it wa " ie H al ul t wo kt " ed Si n ie) wv re i uy F, cn ? ts 4 wy 4 1 co co) wi a 0 " S. a i a] ef ot ue 4 n | & oO i fa ay yw "a S) & fal tt 14 est i rf a ho sg ny " w rd uD si + 4 ? 1? . a w ra ur mM rt Oi ae W nn) 'i im i a te 3 ay Oo 0 a co 62 "a is) On 0 ai ' w q al y n) d a) wu La te re at d a ' ou ty 74 a . td st "1 a v4 wv 3 " ad w u be io G wt ra ta el 47 mn uy w S. be ta My a . on al ied oO be d 3 on ee td rl aoa 0 st a fa] fe ' . al f + it " QO u BU "a a w al q tt ) O Ha a . a m ed a " > cs aa w Me Ww S 'le a] si wy " 4 A qr gy st f=] a) a to tae t. 74 'y = » rt ba 3 ie a r "i uw NS my rl w OF W fa uw a w lr On aA i-4 (1 tt ay d i) nj a] . £ wi rt uy Cn w tt uw & st . At a4 th "ys G 7 rm) u i w it > -t tal ro "1 nd ey 3 ny c el n} 42 a) fil o CG Si tY ar fied a 4 Oy 'i it Ad ) v oO ra o + a u Ww "3 be Le 5 wy 4 = ie . a a at fi aw vp ct a mn Lal te bi i a3 wy a ") i we 4 tt Ld uw < ty tr wu a) lt oh ny el "I of eal i Y ae Q et od De] W el - d ia gi rd w w UR aot i) D0 a iz i) a) ho w 0) i o He a) w tu 0) eC} qi ui Wt fe ne] wd "% = a) ba af 4 > Sa 5 4 - at fa) Sa ot ra w 12 v Sa ip Ns te wd a a fis] aa} uw 2 a rt rf b ad w oH w 9 +e 2 () nm bf . iz) Ww ty q ae) 'Q ios rm =4 mn 'I ro a) ba a ty m - ua w a di is) oO w | ri 'ww nr oe] oO wv ty Ww ny 1 w =f ce} nn ha a So it) ay ct the vy LY wv a ny ta nm od om WP go 4 te 3 st ou W si Oo uv d mt al n UV 4 oc a wt C th [0] o a n uy vy "ha NM m On ia) a a Q 4 Q a) rey wo Sa b> 2 ) "7 Oo c ry a Ss ri) tO) ay tet DY ug fe oF ' ra wt uw w 13 4 Re] b Mo "hea uw si i] $4 rl S mst G ny d Fe <1 Lb uw u » G wha ? ra) ss 1 "4 fa a uv uy . t) io Q aay 3] a | 3) ur rn o WW tet pv fel n a c A u uw no re) $3 73 ey 4 ord nN he 3 nm) a m qe v im) [oy Me fy] q yy ay dt Ke ra a wi ar] Qo ot vo] ny d fi] uh ta Sa Si a] re] ro band ty "EA 4" rm Na vb $2 a 1m ra) rt . . bi oot moots 2 co Ss OO) On | nn Oo oS TA = a] ') qt fr] 4 io ql Uh] be tl 15 W 4 wv wy rl ta og) 0) iv 4 ort Oo mm Bt c uw woo 7 fu a od it 3S oon Gq ot a is) Dou S soos if tal tH GS MM Mm wo dal Se O ww 4a m o rt t Hy w nm 3 pay a tm qi ct a rt er 'u - r re Ht "s " . "a aa . a ty SI is wo tr io ~ . nn wo OU ie qe Ww th . ut uy ay ie nm ii 0 el "i rf Bt mn) o nt 4 rH Pa at "i c "dt te " a) uy Cy 3 at od rd fe 3 ra 3 " ay ed ue Ma wr " . af 1? io) ? I ) n w Yr rd 0 rot u u a) cay si n 3) 12 a i ay is OH ue 1) - \y ' La 0 i ty + a . D ta] Ya oy a 2 ut nm is) i a3 ws os g at rd a im] ad a ny a] Ww . a) a rt nd hod rs) aod ny vt rd nu im $a AY . nm o ) ed 3 rd io ba st ya S a Ad SI U Pa ey 'a ur my 4 St . wo df 'i it be a a cil "4 a Ww "W a1 in) - 4 7 to G ui W rl Sal t "4 ul "e he! m rt qi at nt ay ra . ah a am) m ] ba Cg vv 11 ts wv . uu ba «t faa 7) f* is] m a ° a ba ) 4 . Ne 04] va] hs On fa He we Na tr hs] Ha nN 4 a) So 44 w a w ut) i an 7] io) fal 1 . et o ot a) hy G «i ra wy mu re] ° : Et " "J i a ws & wt a el ct Le wo a a] o w "i a 11 'd st 'D a n ca UH vp LW ur ia] a Na ra hh ny TI u u f= ia tJ re a4} ca ny fix} ie : m ay Oo A) " or) i fa) a EN] rt LY ut fo th "a "4 a ~ uw ad qs We tr Bm) uy in bh o) F ay tle fe iq a) cd Q (ni rh as sa ' aU rt . ay Bu ed ct ay 7 fa ) i! oa co wv 1 u wy + 0} H on wt ' 2 R cd wo rn mu ety . rs) W ra) oa wn ot . a 4? si mt ye fm) \ et 3 $2, a) rt u a) Q ie) i fan ie) Ho it Ne ih tal Ww un iyi io "4 w Ls] a Ww ny a "Wy av rv) rl Yay tr a a ay ay LO) qd "4 a Ha vy a ut ue On ha SY 2 a oH i] Sa ct va m Na 1% hi ia 4 Q W " fel > FA ty) w i Wy 3 a wy a am ono] Pa in 1! u Hg 3 . Oo m b> ct a' di 1? fd a ae] w fa) ef "}t Oo a ny =) [=4 iQ} Sy I) a) % ut 4 Q ty 4 c rl . SS $2 G ay he d Qa ay "rv & ed dh d i mt & oO to "4 @ z 4) S Ca u 1" ag n ha a Q m cay ri) 0 4 ns rt iy . uv a Pal Ke] c is 4 Ch) fe) ~ G ha . rl u 0 Gq uw wv : 0 wW vb QO 3 Q ty ct 0 1 ny He Na "dd ' . sf MS > wed a] iad + et gt ie} Wy ra a a ef ad fe] re} my ay) "4 ad ie) wb La a 0 dl af red ba dy ty fa] Ww any u 1 04 ie] w Rd} wy u I cd "y " id is) u of ul a zs rl Wa ba] ri % Ke wy Ss w by ei ~ vp C0) io ' I el { nop fe} my - rn en o as! too ta s fis) i S mn -t Qo MSM B qQ ia th tn tt > w 3 c { uy oO Ny G a E ia oct sf si ra a) ty a3 '" Q qs Sa ad SG ws o & w [a] ri 4 ra) q w a w di a LY ea S17 ") mW ty ot u an ts ba E n UD moss id a w p r+ | i} ty ats Sa 4 rey uj t u L? "4 fa c a vt at ui co "4 7 ry of "1 crn " nd wo wv | "ag is - sm Oo 9 * at ed wv : ut st cS ty ie) W vd . . uP] ny G cl ra w200 et wm n ip) a wu - eI Ww 0] a mfg ie) Uy > ay Le re) ul 4 "4 ts vd Si wu "I Pq ed cy st id is a > ite) Hy '| a $s ny th qs P=} Cu a fa} ba) a si a a] > ba . > m ue a 10 t 6 H si Qn a of Oooo ot u rl is) mam af) 1? 33 '. Ww =z Ws 0) w o $2 Q. "rt ed Ss Su na vw & m Ww " "4 o % qu af a ad % ra ie ns rs) ur a iv vb ra) "a Wd ttf a ad a t a 3 uv yy ur 7 m |) t7 ded a n at b cow ta] Tt rl is] $ a an m a ial rl tal fr rag m) Se Le deecticn & uw Ny it Cd it a tt on ba (jr ' Wy + ¥ ou mM ha Me stone ara = A Wh a Ta an an = ie Jo uf w [a] a Mt % ui w ra) G ws I ray Nademer ik. & al netyuetion. w4 -- n) a) uw m ct] is) dt wn LI 2) u un a qy a ay ad] ct to ny —ls S n fa n) ny iy] an ny oi BS] Wy a uu % ee Oo "} cs uy ma) oS as 1a in Sa Sa La] al) ie) um a 'ly ri fa mn wm ul it) i ij rs wv o at G yD Ly AY n Ue ia] fa ub Di n yj ub tty dd a a ht ay Se w un d kal} LB) w a [2] tu $2 G w m Amy Re] fe) Pe] wD tw so m rt mw YQ OU Ly uy Wy aur cay th rm) oO a m ui) Ww ay a q a a) n al wv wu ng ut aw w Dat Po sip Dwg Na Ba 0d te a 'a ort 2: u YM Da Oe oO nm . i] la WS Sa » n » ra 4 4 Sa cea c a w wt Ou wa Mu Na mm ov ei \ fet nu vy q rf a qd w n a) rl be io) ii} " 44 2 uw "I Na . fia] tr cl wn fix] oa) el Oo Le n atv 3 . ui hy = BG] =] w ad a fl w wy Go oa i=] b tt u Gy Wbed ed t} us vu? a i fas Un) tr +t 4) nn 3 & ie) . i) il a ae Dep idet & Lv i] Ww . AH L nm LY Maura ga ") 1) Ss » o Ou "et 3 bd Ww a Cu] ie ml ha wa ao wt a 'a a) fia wy u ) fr 4 a Ext @ aj G Ca v = Qo ay Ma rw ty ot G t~ t+ Soa w ua w ty or blo a] tt fit) a fn u uw el er] ra) d "1 31 a u a) fu Q i cH $2 aT Et chet w "ha Na S Qa a" d a oC Wo Sa by oO uy m Nay u w io ist O ts cm Be Ww m bt im a Su " a qr Gh dom a d aa! tad ia ~ fu mo 1 wy rs) ra) ' 3 ero ta fa S i a rs) at c Sa my tf Aa ae] rt mi tl a3 nq rs) th 2 nn m4 a | wm fed "i ra] uy st nn tr nm "a & & oo uj a bY m fi] Ad n Lv al oc wt O oat &i = c 1 Pod 4 w wm sia « a ia) = fe ra i] Ww . is) u oy Oo w@ a | a B ee Di] 'D 92 im) wv La fh] aU QQ ce) v 4 a) ft Aa aw uo i] ty w) G cy cu cH i » Qs wo b 1G iy] > ty UW) io at a) w is] 18] WO 3 a 3 a d c ww qd b S al re) is vb HAW Gee a uy vb on a3 =I o Wg qa a hi aa a) ed 'tJ \ Sa & Q ky oy DOR a 1) fia] ty L wu Gg a rind Q 4 n A) Nd ao eo Ch) a ul fa] S 43 "4 we f) a a 0 se Q Ds a it pb a w a] g Se . , ow mo Jad oo YH a Ww t> thd iam q Q u "S a ro] ie a w ip) Ourmgo eR wy t ie m or | ' iw GA el ve) st WG rd aod fy a < tit) woo? 2 l 'a sf St) FE 3 xt a a a ra) Fa by Q =) wo tu . 1 w 1s) s qa Sa 7) Sy b On IF Wh th ag ist 3 9] G uw qr gOS my Qos @ Kw] NS Ny a a ur fod ha Ns a 5 v Mi W re a si w Ss o oO Q [S) A) Ww * rt e) lt b> fas] Ney "hy a (s) by . -~ ot Ly Ps) S y o ' a Q st x chy 4 "3 a2 D> ff] s ny . mW ny qt xa cay rs) co tal) ha a tT) b u ig w m hy 11 Na , he 3 el ' ar Ww Qo od se au oc io! ol Sa or | ray te "rt on Ss a a fen ® og rd c m7 iy Mu fix] Ae relation tc JN caries wat tne amet --- Tas. In fact in seal terms the Huscralian Inéusctrial Court dacision meant nothing ts the GK cara svstem> --- f£ think it meant a lst froma personal xcsint of view but the wishes ct che membercshic were that tne UK card sveten shcould swrevarl and 3 meeting of tne memcrers mecided the sclity sheuld remain. anc larried out the solievy From tnat time sn. The short answes TO my questiin is, yes. thers nas been no rnange? --- No. tnere has been no chance. HIS HONOURS: Yes or no. Yeu saz ves, he sain - no, there has besn no chanas. MR HOLMES: Well. ain veal cerms there change as a resuic of che Industry1al Court decisicn, nas No. in cselation to somebody whe nas aained enrlo without an OK card, it has been practica of tne union since 13°77 to action against fmen for breach 22 walicv? --- Yes. That wsractice would lead to them being ca before the rules anteorcament committee? --- Yes. And tract practice rruiid lead t35 & Fine cerns récommendsc Ev She cules enforcement committee? --- Yes. And tnat rcractize roulid iseaa the New Souctn Wales o tins? --- ¥es. End requiring sS member tl <vav money [cr starctins sore withouc an Th ctara?t --- Yes.' Is the eracticzai iife of a teace unison there ars wavs than cne af enftrcinca a wpolne, of cf 'G oD Ss a c Fr rerea = o % ts u q c O re) at nh ~ aT ea by ay ( et to a k 4yI wm el a ta ad th . wd Net n ai a d bo a ray c, aa) ivf " uw a Lt i ot ait m oO Ss th g a =) | G ry vu a] tt c oO Ww m ie ay rt 1) Wy 15 ia) d a] fir rl i) is] Pa) co a " w Med DF) 3 ; te w ar re si al wn A a wv ti) qQ NG r n i 3 " Sa ef wt v? Cy cl uw Ww tw) fy] . Nf) e w y my i a a of Q G a bu a r nd p 1s fa OT) rf a i] tw fal et a is) sy rs] b Poo > tr io Go '' at sf in i" . Q i ) ul ef st 1] ha La) w) rl ai 73 ui) w io Dy u uw re) na Oy u) re a ne a it a w " m4 ad ne] be x d & t a on oa G 18] Ny 7H re) a ra) he bt W is " > " ? % 'tt vf 2 ~ m cat =| Oo d a ) ta be On . na " . t vu) Me 33 uy el ia Ww 8 a) io o ml Sa uy o ng tea ag 9) no Ww ) Q mn 2 et fi] u SS 'd Q re) 0 ad q " oO 1) , i ul AG st 4 fm) is Sa wt a d rl aa) F wu [3 0 io ug Sa Wo St oy] iD 4) it BR re) th) uo wu c ao uy w a3 ror uy » a Hd no W ue rs te ad mm vy Ca 1 va) eat] G 1G) ct) $3 qd ha a rl a] ay n ? my "4 wy wi d rl b nu? qd w nn w ro] Ww R ur tT u qr ao mp c a A] ir a rl of v Q a a w t Q in ie) Wo ha u eo go ou PO ay io & w ua La) iF] ut Na st c oa) os . a EB) u tt o a > a) m4 rad 9 uy w cal Gg rm a vy =4 U i=3 o r ct tl nh ad tr st io] La] my oO G Cy . 7 ial] at S oH uy w yy re "wt ny . WD ur a) thd a G w Q 'ly Sa vb a Sa et is) Ww ie) a E iB) a] Kd 4 fa in ay G Q pp 7] qd tah w wy wW G Q "4 rh a Ww) i= v ay m oe ro a] m a ban] wn a Ud 4 'd wt 1 in y w "a wu ot a gd w wy Al 'rf rt 2 th is) 7 3 =] 4» uy mt 4H ig m% ba ba S! i) af 1 c ial a Go wv w st wu 4 w He et 3 fig 3 nm on Sod a Co] vy . uy rel c a o rl mM " a wy $2 ay i. ww Hed tt rd u) i) fo wo ay a al b a) cl "1 st ™ a bod ay ba ft of wu wo G ra a ri) aa) | "W Ww to cS db rl edt ty i) W fd ny io a tH wu oO ol g ny) re) doo on el . 0 ra) WwW m U3 ns fal '4 rm] oD = a Q Q ia "4 12 re) Sr ie) rl Sa » i] u fd a 7 ty nal o my re) i in & wd w "I fo] ial a > a et c el OT] nD tal the Crh] ha a ar wy wv "4 Q im) io a a hy U u uy w et & io a O 6 ia) a tu ay g et d al ia) a) . oO ns a G dof e 4 3 ee a @ c d Tt i? ' w Sa "1 c GS a wv fa] Fi go Sy tha G m os 8h . hm 2 a a a od o wo 15 op pp Gel mM A b 0] Wh t ie % a! ao wd w et ct Ss . od 4 a ray a] dl pom ch eo] s) ed iv DE a by ze c y wv ay G a) 3 uo Ww a cd > SS at ad 4 at . a wh Hat) Hd a ry d re 'oy re) ai wd 3 d ad ty re) fe) vu " Sa b w <4 ia] wu oO L Col TY re] ") 4 c W uy c be re) asd = . fa) uw a) Hr u DD w clogs QO Lb bod fal /_ vo 8 WwW F&F RF DM O DW + tH HY Wh u Cr <r © © Mm od OR a [Sr nn ¢ Se Ss om a my MY C t ov toed wt " i ot St nD Fe) i [> a 8) a 0] " W 9 d au oO dq ut ") af oO is) ri a) G qa w a a wow > Re a 12 u a Ha " Q i c dt al 2 o tr Rad i ia) Sota ae) Sy aa ro is m ay m i a wy oO Ww C0) i] a ba > Ly Fad ia wy 3 a id if) a f wy w bya m co m9 a ri wy ay i) a) Uy) AY 4H w e ta ny rd hi ts, be fa Er " fs) qe a o | od > w a fe) a > NS Ga rm ny wy i) fa i) d Ss wt rH a rm) ' . rm) m "i ny th 6 xo wT ia S4 i=] a Oo ox ce S yp oN rm Di) o ah nS ts ot & oo S ™ do mM ow a ty q u w cn) 13 u Sy a doo-l 4 es <a =| a a mM TH st Gt y oa tL fc at oOo & aq wo iD] Goa on - Oo th m4 T* Da) we wv ria] ta Aa) th QQ ot 43 [=] ut ea] > ny u u Hx me a & fon MR you went on Tuesday yay --- Ves. Tc waz ana Mr. Keen had re Oh orrect, Zu was cleac that union members with OK cards nad Desn weewing alanaside chem since the time they romnenced tre vear cetore? --- That is cicghe. Iz 23 cis 22 Part ot the GF card colicy char on members are obliged to iuntsrm the ft osomeboav ztarrts work without an wK -- That 1s correct. So when vou arrived on the Tuésdav there was a breach of policv? --- That 1s correct. And that it had taken place --- That 15 corvecc. That breach had been in existence For some months? --- That is risht. And vou haa mc doubt about tnat whatsoever? --- Na. TO. That those members, ornmes than nd Cocaqan and Duamere. had eunten 3s Ok caca seliev? --- in cite it have che Lt te ] HTS -oNCUR On tnis ccrasicn 222 7cu Ss tc eaetc affect? --- Tes. Cc anl = exo ned thev wer2 in creach rf solic, ane the ocuid be cited. . fn other words charzed with an offence ani Srouche wc befors the aprprinriate cenmittse? --- od tri pally o tl = ik] ran nefa. re] iS) or a $4 ta pear ba] cay a H wb $2 i] I ' fl LO) If vou like vou then e2zrectea the mempers at Associated Lithoscans to ojwustiry thear actlons? --- What do vou mean 57 justilty? Tb was up tao them tc exrniain that they hast fazled fo nocviivy the union? --- No. not for me if I nad citesa them. To was ur ta chem ta make that in front cf the commirtee. MP HOLMES: It is part Of your cr &S an crvanicter His huNOUR: To ensuce --- ME HOLMES: --- that the wcolicies ace aricei Er? --- Correct. If vou ars avyare of any breach, you vsecct thar to the brancn? --- Yes. If it iz a clear breach vou 2Lte tne nembers tcf appear oafore the branch? --- I may cer, bur Tam aunvelvred. On tne tthes hane tf could, sut 1t might net be me cerernaliv. Weré vou an organiser before 1977? --- =f thins ss. Did vou éento the cules bertcora i277 --- f take i word enforce fu Bi My tH GO $ mf w re rou Ft fp HI on) iz) tH wee wee ar wee eet Le ~ "4Ne al fu cr tad ia) nm tq mambers to participate in a sel= dan ing orcinance, according to its terns, they being free to participate oy not to participate. and withouk faar of punishment if they did not. lacks reality and just cannat be accepted. Its only possible justification would be that it Wen ee ee ee fe ee ee ot epee "We to we ay ' "if Are Gh NTT t RINNE NEN yop sy ee deme IPT In eed ame yt tome me ew SE a meen, caer ne a ne ns Se utd vir pest gtocep a pee SHNIYRE erssy a Vinten" oe aye sede abet OIL Fas IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. N.S.W. 7 of 1983 ee eee INDUSTRIAL DIVISION BETWEEN : J.G. PORTER, £. FAIRBROTHER, F. REW, J.A. CAIRN, G.R. COOKE, D. IRVINE, J. TAYLOR, J. McCARTHY, T. POLLITT, B. HENDERSON, T. BURRASTON, B. KING, G. BOW, J.R. GARDNER, P. BAYLISS, B. JOHNSTON, B. BARKER, D. JEHAN, A. MOSCHIONI, G. COLQUHOUN, C.C. EVANS, R. KNOTT, W. MESSELL, G. QUINN, A. SHIMMEN, J. DOWELL, R. BAILEY, M. MASON, Q. JARVIS Appellants AND : JOHN DUGMORE Respondent CORAM : SMITHERS, KEELY and SHEPPARD JJ. DATE : 2 April, 1984 REASONS FOR JUDGMENT KEELY J. : This 1s an appeal against the judgment of a single Judge of the Court (Northrop J.) in which the following orders were made under s. 141 of the Conciliation and Arbitration Act 1904 (the Act) :- "1. The respondents and each of them perform and observe the rules of the Printing and Kindred Industries Union by treating the resolution passed at the mass meeting of members of the New South Wales branch of the union on 23 August 1977 as null, void and of no effect to the extent that the said resolution instructs them to maintain the strictest adherence to continuing the use and issue of the OK card pursuant to the OK card system. 2. The respondents and each of them perform and observe the rules of the Printing and Kindred Industries Union by not taking any action with the object or effect of enforcing the policy of the OK card system as instructed by the mass meeting of members of the New South wales branch on 23 August 1977. 3. Rule to show cause otherwise be discharged." The "OK card system" referred to in those orders was in 1976 the subject of certain rules of the New South Wales branch of the Pranting and Kindred Industries Union (the union). 'The Australian Industrial Court in Clark v Printing and Kindred Industries Union and Others (1976) 30 F.L.R. 39 held that rules 7 and 10 of those Branch rules contravened s. 140(1)(c) of the Act - per Dunphy J. at p. 48 and Joske J. at p. 59; St. John J. held (at p. 64) "that the whole of pars. (g) and (i) of r. 7 and the whole of r. 10 contravene sub-s. (1) of s. 140". The full text of branch rules 7 and 10 were set out by Joske J. at pages 54-57 of the report. It is sufficient for present purposes to quote from that report the following parts of those rules :- "7. Admission of Members (a)(1) Any person working in New South Wales desirous of becoming a member of the Printing and Kindred Industries Union, shall forward, or cause to be forwarded, to the secretary of the branch an application for membership in duplicate. (iii) The applicant shall sign a declaration agreeing to abide by the rules of the union and the branch and any amendments thereto made in manner provided by the rules. (g) A member having gained admission to the branch through one section of the industry shall not be entitled to work in any other section without having obtained permission from the executive in accordance with these rules. (h) Any person gaining admission by false representations or who is proved to have been guilty of any violation of the rules or policies of the branch shall be dealt with by the executive in accordance with these rules. (2) Any member wishing to accept employment in any section of the trade other than that in which he is registered in the branch records shall first apply to the executive for approval. If the member's application 1s refused and he accepts employment outside such section he shall render himself ineligible to continue his membership of the union. 10. O.K. Card: (1) An O.K. card is a document in the form prescribed by cl. 6 of this rule and issued by the branch to a financial member attached to the branch which member is seeking employment in the industry within the area of the branch or who desires to transfer from his employer to another employer within the area of the branch. (2) An O.K. card 1s not a clearance certificate or a transfer as specified in r. ll. {3) An O.K. card issued by the branch is valid only in the area in which the branch has jurisdiction and for the specific purpose for which the O.K. card has been issued. (4) A member who falsely obtains an O.K. card or having been issued with such a card alters it may be charged with a breach of r. 51. (5) (a) Any member who, having obtained a job or position from any employer, shall commence work before obtaining an O.K. card may, after fuil inguiry and careful consideration by the executive, be fined a sum not exceeding ten dollars ($10) for each such offence. (b) Any member leaving one employer and commencing work for another employer without first obtaining an O.K. card may, after full inquiry and careful consideration by the executive, be fined a sum not exceeding ten dollars ($10) for each such offence. (c) Any member of the branch in the employ of an employer who fails to ask another member or non-member about to start work in his department in his place of employment to produce to him the O.K. ecard of the branch, or on the failure of such other member or non-member to obtain and produce to him such O.K. card fails to notify such failure to the secretary-treasurer within twelve hours thereafter, may, after full inquiry and careful consideration by the executive, be fined a sum not exceeding ten dollars ($10) for each such offence. (da) The secretary-treasurer shall forthwith supply to any member applying for the same at the registered office of the branch an O.K. card in the form set out hereunder, provided that such member at the time of such application 1s a financial member of the branch. (e) If the secretary-treasurer shall believe that a breach of this rule or any part thereof may have been committed by any member, he shall cause a notice in writing to be sent to such member through the post office adressed to such membersat his last known address, requiring such member to~ attend before the executive at a meeting thereof to be held not earlier than ten (10) days after the date of posting of the said notice. Such notice shall briefly state which of the matters of complaint set out in pars. (a), (b) or (c) of this rule is alleged against such member. Whether or not such member duly appears before the executive as directed by the sald notice the executive shall 'at the time appointed by such notice for such member to appear duly inquire into and hear and determine the said matter, and if the executive shall find such member guilty, such member may be fined by it as hereinbefore provided. (6). The O.K. card shall be in the following form: "PRINTING AND KINDRED INDUSTRIES UNION NEW SOUTH WALES BRANCH O.K. CARD The bearer Of this Card cope cenaccnsevccvsccrvveccs ROLL NO wccccccceccccncce +e. is a financial member of the Union and is entitled to all the privileges of a financial member. Union Classification ... ccc eee n cere ccc eeee sete eee Proposed EMpPLlLOyer ceeewcecesseccnvervevecsccersces Issuing Officer ee Date of Issue eee ere nr er ener eeerese sees eeereeesnesos This card 1s not transferable In holding that those rules contravened s. 140(1)(c) of the Act Joske J. (at pp. 58-9) said :- "Every man has a right to work and his right to work is not to be unreasonably interfered with or obstructed in any way by any person, body or organization in the absence of statutory authority for the interference or obstruction. Rules 7 and 10 undoubtedly, in my opinion, have the effect of restraining a member of the organization from carrying out his calling and, indeed, from engaging upon his calling. It 1s said for the organization that there is no obstruction because the secretary is bound to supply the 0oO.K. card referred to in the rules. It 1s pointed out in reply that he can set out any classification on the ' card which he in his absolute discretion determines and it may not be. the classification which relates to the job the member is seeking. However, whilst agreeing that this is a fatal objection to the validity of the rules and makes them unteasonable and oppressive, I am of opinion that there is an even more vital objection. The insistence that there shall be an O.K. card before work is permitted is an obstruction or interference with a right to carry out a member's calling and is an impediment to his right to obtain a job. No statutory justification exists for this requirement. It as unreasonable, dictatorial and oppressive." Dunphy J. (at p. 48) expressed similar views and quoted the ' following passage from Buckley v Tutty (1971) 125 C.L.R. at p- 380 :- ",.. it is contrary to the public welfare that a man should unreasonably be prevented from earning his living in whatever lawful way he chooses and that the public should unreasonably be deprived of the services of a man prepared to engage in employment." Since that decision branch rules 7 and 10 have been deleted and a new rule 7 inserted which said that "The provisions of Union Rule 5, Admission of Members, are hereby incorporated in these Rules." Federal rule 57 is in the following terms :- t "Union 57. - O.K. Card. {1) A Branch shall make provision in its Rules for the issue of the 0O.K. Card provided such Branch Rules do not conflict with the Rules and By-Laws of the Union. {2) An O.K. Card is a document in the form prescribed by Clause (6) of this Rule and issued by a Branch to a financial member attached to that Branch which member is seeking employment in the Industry within the area of the Branch or who desires to transfer from his employer to another employer within the area of the Branch. (3) An O.K. Card is not a Clearance Certificate or a Transfer as specified in Rule 6. (4) An 0.K. Card issued by a Branch is valid only in the area in which the Branch has jurisdiction and for the specific purpose for which the O.K. Card has been issued. (5) A member who falsely obtains an O.K. Card or having been issued with such a Card alters 1t may be charged with a breach of paragraph (c) of Clause (3) of Rule 47. (6) The O.K. Card shall be in the following form : Printing and Kindred Industries Union O.K. CARD The bearer of this Card....... (Name).....-..0e Roll No. ........-is a financial member of the Union and 1s entitled to all the privileges of a financial member. Union Classification «ccc ccer cree cncceencces Proposed Employer ....(Name and Address)...... seco ecco eeeeeee LSSUing Officer er eeee ecco snsee «eee. Date of Issue This Card 1s not transferable." Mr. D. Ryan, of Queen's Counsel, who appeared with Mr. J.W. Shaw and Mr. S. Rothman for the present appellants, did not ask the Court to review the decision in Clark's case and accepted that the branch rules there under consideration contravened s. 140 of the Act. He accepted that the O.K. card policy could not be enshrined in rules in terms of former rule 7 and rule 10 amd that the policy is incapable of being enforced by imposing any legal sanction for 1ts breach. He submitted that the resolution passed at the mass meeting of members of the New South Wales Branch on 23 August 1977 (the resolution to which the orders challenged in this appeal refer) was "no more than a declaration of policy, incapable of legal enforcement ... of no effect ... (and) to say also it is null and void adds nothing to that truism". He submitted that the learned trial Judge had taken the view that "the respondents were purporting to give legal effect ++. to something which could have no legal effect" and that, as the respondents were not purporting to give legal effect to the policy there was no foundation for the order. Mr. Ryan said that it may have been open to the learned trial Judge to make an order in the terms of the first order under appeal if it were amended to read as follows :- "the respondents and each of them perform and observe the rules of the P.K.I.U. by treating the resolution passed at the mass meeting of members of the New South Wales branch of the union on 23 August 1977 as null, void and of no legal effect by refraining from enforcing or seeking to enforce or applying any sanction or penalty against any member in purported pursuance of the rules of the union for any alleged failure to adhere to the union's policy in respect of the use or 1ssue of an O.K. card." He made it clear that the appellants did not submit to such an order but it is convenient to refer to it in these reasons as the appellants' alternative order. Mr. Ryan explained the reason for the inclusion in the alternative order of the words "in purported pursuance of the rules of the union", saying that the appellants conceded that an order under section 141 will go where the organization goes beyond advocacy of a policy and purports to apply sanctions under its rules in ways which are not permitted. As to the second order under appeal, Mr. Ryan submitted that it was not authorized by s. 141 of the Act to the extent that its effect is to restrain advocacy or persuasion or recommendation with the object of furthering the O.K. card policy; further, that, 1f 1t only restrains the taking of action by enforcing, through the imposition of penalties under the rules, the O.K. card policy, then it adds nothing to the appellants' alternative order. He submitted that s. 141 did not authorize the making of an order :- 10. ",. to restrain the advocacy or implementation short of enforcement by rules of a policy. That we submit is what the second part of his Honour's order purports to do .... we accept that where the rules provide a code as it were for the application of specific sanctions then it is not open to the organization to apply those sanctions for offences other than those specified in the rules." The appellants' submission concedes that, where the rules provide specific sanctions for specified conduct, then those sanctions can not be imposed upon members for conduct which does not fall within the conduct so specified. As Mr. Ryan said "One starts with the assumption that there is no power to affect adversely the rights or obligations of a member unless it is specifically conferred.". He said that the answer to the question whether the appellants' alternative order would leave it open to the respondents to condemn or reprimand the applicants for failing to comply with the union's 0O.K. card policy "would depend on whether the power to reprimand or condemn was conferred by the rules or not. If it were conferred by the rules then its exercise would be delimited by the rules, that was why we were concerned to include the words, 'pursuant to the rules'" (in the appellants' alternative order). Branch rule 51 expressly confers a power to reprimand or censure a member for refusing to abide by resolutions of certain bodies. It includes the following :- ll. "51. Vaolation of Rules (1) The Executive or a General Meeting may suspend, fine, expel, reprimand, rebuke, censure or in any other way discipline any member (not being an officer or office-bearer of the Union or the Branch) proved to the satisfaction of the meeting concerned to have been guilty of : (a) Dereliction of any duty imposed by the rules or by refusing to carry out any direction given to him in accordance with the rules by any officer or body constituted under the rules; (g) Refusing to abide by the Rules of the Union or Branch; (h) Refusing to abide by and give effect to such resolutions as may from time to time be made by the Executive or the Council of the Union or the Branch Executive or by members in general meeting assembled, as the case may be." Mr. Ryan submitted that :- ",.. if a penalty were sought to be applied by invocation of rule 5l1(h) that would contravene an order of the kind postulated at page 67 of the transcript (1.e. the appellants' alternative order) --- what would not be caught up by such an order would perhaps be informal criticism of members .. refusing to adhere to the policy" He contended that there is a very real difference between formal action under Branch rule 51 and informal criticism such as an "organizer or a job delegate saying to a man, you "~e have failed to adhere to the policy and ... we consider you acted contrary to the interests of the union". 12. Mr. Ryan conceded that the appellants' alternative order would be breached if the respondent purported to use branch rule 51 against a member for a breach of the O.K. card policy. He also conceded that such an order would not permit the respondents to reprimand or censure a member for a breach of the 0.K. card policy, even if, in taking that action, they did not purport to act under branch rule 51(1)(h) e.g. because they considered that the resolution which the member refused to abide by (such as that of 23 August, 1977) was a resolution of "a mass meeting of members of the Branch" and was not a resolution "by members in general meeting assembled" within the meaning of Branch rule 51(1)(h). He said that if such conduct by the respondents occurred then, even though it was not taken under branch rule 51(1)(h), it would nonetheless breach the appellants' alternative order because 1t is conduct of the same genus as that falling within rule 51 and is impliedly excluded because branch rule 51(1) represents a code dealing with that area. However, Mr. Ryan's concession was very plainly based upon, and limited by, the words "reprimand" and "censure" appearing in branch rule 51(1). In his submission there would be no breach of the appellants' alternative order if members or officers of the union were to "cite him to attend a meeting, so exercising powers which fall within that context, were to say to him he has disregarded our policy or flouted our policy, he therefore has not acted as an 13. honourable member of the union and we accordingly make clear our disapprobation of that conduct". The basis of that submission is that such actions would be merely "informal criticism" and would not constitute a reprimand or censure within Branch rule 51(1); the answer to the question whether such actions would breach the appellants' alternative order would depend on " ... the degree of formality that adheres in the words censure, reprimand and so on, rather than observing some procedural proprieties leading up to the taking of some action". The way in which that proposition, if correct, would operate in practice was made clear; the appellants submitted that their alternative order would not forbid the carrying of a resolution in the terms of the one prepared by a meeting of the full time officers of the branch endorsed, by approximately 150 delegates of the branch from Metropolitan shops and endorsed on 29 September, 1982 at a meeting attended by approximately 1,500 members of the branch. That resolution included the following :- "P.K.I.U. Delegates Meeting Proposed resolution on the defence of Union policies. We again reiterate our intention to uphold all Branch policies which have been the strength and protection for all members, in particular our 'O.K.' card policy and call upon all members to maintain 14. vigilance and full compliance in regard to new employees having obtained an O.K. card prior to commencing employment. eeeee We call upon John Dugmore, as a member of the P.K.1I.U., to withdraw his action against the Union and his fellow members, and recognise that his continuance to do otherwise will be seen by the majority of his fellow members as supportive and in the interests of those parties whose objectives are contrary to the P.K.I.U.." Mr. Ryan agreed that that resolution, carried after the institution of the proceedings which led to the order by the learned trial Judge, was "intended to convey to Mr. Dugmore that if he continued with the action that he would be seen to be acting in a way contrary to the interests of the union". However, he submitted that "it is not punitive or disciplinary in the terms of (Rule) 51 - it is, we would say, rather educative in the Sense that it seeks to bring to the notice of the member what it 1s that is considered contrary to the policy, to express the opinion of the meeting"; it fell within the category of "moral persuasion which is sought J to be exercised". I am unable to accept that the resolution of 29 September, 1982 was "educative" and "not punitive or disciplinary". In my opinion it falls within the meaning of the words "suspend, fine, expel, reprimand, rebuke, censure or in any other way discipline any member ..."' appearing in 15. branch rule 51(1) in conferring power upon the Executive or a General Meeting to take such disciplinary action. The resolution was not in terms a formal "censure" of the applicant but the whole tenor of the resolution was plainly censorious of the applicant's conduct and equally plainly, in my view, constituted a "rebuke" of the applicant; if it could be described as "educative" then it 1s only in the sense in which the use of solitary confinement or the lash in some penal systems could be said. to be "educative". The resolution was plainly intended to induce the applicant - not by "moral persuasion" but by a fear of the consequences - to withdraw his application to this Court and to henceforth abide by the O.K. card policy. I add parenthetically that the resolution of September, 1982, which is not the subject of any specific order, has been referred to only because the submissions relating to it illustrate the appellants' submission as to the distinction drawn between conduct which might be the subject of an order under s. 141 and conduct which (in the appellants' submission) lay outside the scope of that section because it was not punitive or disciplinary and did not come within the meaning of the words used in branch rule 51(1). The appellants' submissions concede that the 0O.K. card policy cannot legally be incorporated in a rule. However, it is contended that it is permissible for a meeting, called under the rules, of the branch or of a 16. committee or other body constituted under the rules, to carry a resolution establishing or confirming the O.K. card policy and for meetings of such bodies to carry resolutions from time to time directed towards ensuring that the O.K. card policy is adhered to by the members. That submission is put on the basis that those resolutions, and consequential actions by the officers and organizers of the branch, are merely the use of advocacy and moral persuasion to induce members to abide by such a policy and are permissible - provided that the resolutions and other actions do not constitute an attempted "legal" enforcement of that policy by using the penalty provisions of the rules. The appellants submit that s. 141 of the Act does not authorize the making of an order giving directions that the respondents perform and observe the rules by refraining from calling such meetings or carrying such resolutions. They contend that : - "there is ... a very real legal difference between activities conducted pursuant to the rules and the implementation of a policy seeking to persuade the members to act in a particular way. That 1s because we agree or we concede that now there are no rules, sanctions cannot be enforced against members who preach the policy." However, in my view, the "activities conducted pursuant to the rules" (referred to in that contention) must include the holding of meetings and the passing of resolutions because 17. the times for holding meetings, the right to vote at meetings, the quorum, the method of calling meetings, the method of giving notice of the meetings and the conduct of the meetings "in due and proper form" are all matters for which the rules provide - see Branch rules 28(g), 29, 29(c), 29(b), and 44(a) respectively. Further, it 1s part of the duty of branch organizers to see that the policies of the union and of the branch are at all times observed (Branch rule 47(b)). On this aspect it 1s of assistance to note the manner in which the rules operate in relation to the union and the branch, including their government, structure, funds and officers. The officers of the union and of the New South Wales branch are elected under the rules. Their salaries and expenses are paid out of funds which are raised "for carrying out the objects and Rules of the Union or of the Branch" see Federal rule 3 and Branch rule 3. It is to be noted that "the funds of the Union or a Branch shall not be expended for purposes other than those set out in these Rules" - see Federal rule 32(2) and Branch rule 23(a)(viii)). Those funds largely consist of the contributions and levies paid by the members in accordance with the rules, for which contributions and levies the union is empowered to sue under "s. 148 of the Act. 18. Between General Meetings of the members, the affairs of the branch "will be controlled by" the Branch Executive Committee, which is created by Branch rule 28, and, subject to the direction of the members in General Meeting assembled, has wide powers including the power to control the funds of the branch, to form, disband or direct Sub-Branches, Committees, Chapels and Sub-Chapels and to direct that meetings of those bodies be held. It has power to :- "(xi1) control the property and investments and funds of the Branch; (xiii) authorise the formation, amalgamation or disbandment or direct in any way the Executive thinks proper any Sub-Branch, Committee, Chapel, or Sub-Chapel, within the jurisdiction of the Branch; (xiv) direct, in manner provided for in these Rules, that a meeting be held of a Sub-Branch, Committee, Chapel or Sub-Chapel, or section of members of the Branch, with power to discipline according to Rule those failing to attend; (xvi) »+. cite a member or members before it; (xvii) generally govern and transact the business of the Branch according to Rule;" Sub-paragraphs (xiii) and (xiv) above must be read in the light of Federal rules 50 and 52. Federal rule 50 is a long rule, headed "Powers and Duties of a Branch", which includes the following provision :- 19. "(2) And, as to the Board of Management of a Branch, the said powers and duties shall also include the taking into consideration and deciding upon all matters relating to the admission of persons to membership, and all matters affecting the membership rights and industrial interests of members which may happen during the time intervening between the General Meetings (or between Conferences, where the Rules of a Branch provide for Conferences in lieu of General Meetings) of the Branch .... " Federal rule 52 is in the following terms :- "Union 52 - Chapels and Committees Each Branch is hereby empowered to establish in accordance with its Rules or by such manner as it deems proper a Chapel or Committee or Committees in each work place and to regulate the business of such Chapel or Committee or Committees according to Rules which have been approved by the Branch." The powers given to the Executive Committee under the rules must also be read in the context of other rules expressly referring to the "policies of the Union and the Branch". Federal rule 18(2)(b) gives the Council the right "to decide upon the policy of the Union in all matters affecting the members". Branch rule 47(b) provides that it "will be the duty of an Organizer to see that the Rules and policies of the Union and the Branch are at all times observed ....". Branch rule 56 provides that "Chapel Rules shall conform with the Rules and policies of the Union and Branch and are subject to endorsement by the Branch." These rules as to the policies of the Union or the branch are of 20. ' some importance in considering the appellants' submission as to the difference between activities pursuant to the rules and the implementation of the O.K. card policy. It will be noted that most of the rules to which reference has been made could be used in taking action to ensure that members abide by the 0.K. card policy (cf. the organizers' duty to see that policies are at all times observed). The umportance of having rules dealing with such matters is recognized by the express requirements of the Conciliation and Arbitration Regulations (the regulations) made under the Act. Regulation 115 imposes various duties upon organizations including the followung :- "(1) The following conditions are prescribed conditions to be complied with by an association applying for registration, namely :- (b) the association shall be an association for furthering or protecting the interests of its members; (c) the association shall not be wholly or partially ce eee conducted, directly or indirectly, for the purpose, or with the view, of opposing, injuring or prejudicing the interests of .. employees ... whose interests it purports to represent, further or protect; (d) the affairs of the association shall be regulated by rules eee providing, in relation to the association, for - 21. (1) the election of - (a) a committee of management of the association and of each branch of the association; (bo) officers of the association and of each branch of the association; and (c) any conference, council, panel or other body (additional to the committee of management), which is empowered to determine policy or to exercise functions of management in the association or branch; (ii) the powers and duties of the committees and of officers; (iii) the manner of summoning meetings of members and of the committees; (ix) the mode in which the property of the association is to be controlled and its funds invested; (x) the yearly or other more frequent audit of the accounts; (xi) the conditions under which funds may be disbursed; none of the rules of the association shall be a rule which, if the association were registered, would contravene sub-section (1) of section 140 of the Act. 22. In considering the Court's power under s. 141 it is useful to refer to other sections of the Act. Section 143(1) of the Act permits an application for the cancellation of the registration of an organization on the ground "(k) that the organization has engaged in, or is engaging in, conduct or activities not authorized by or in accordance with its rules." Section 140(1) of the Act includes the following provision :- "(1) The rules of an organization - (a) shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law; (c) shall not impose upon applicants' for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust; In my opinion it 1s not permissible for the union or a branch, or an executive or other committee or officers (in each case elected and exercising their powers under the rules) to take action to call meetings of committees or of members, or to prepare recommendations for resolutions to be carried at such meetings or to take part 1n any such meetings 23. where such actions are for purposes which include the purpose of ensuring that members adhere to the O.K. card policy. Any such action would "tend to frustrate the policy and main purpose of the Act" (per Fullagar J. in Williams v Hursey (1959) 103 C.L.R. 30 at p. 68), including the purposes manifested by s. 140 and s. 143(1)(k) of the Act.- The policy, 1t is conceded by the appellants, would contravene s. 140 if it still appeared in the registered rules. In my opinion it is an a fortiori case where, as was demonstrated by the evidence before the learned trial Judge, the action taken included actions on a regular and extensive scale by organizers whose salaries and expenses were payable out of branch funds. In my opinion the rules do not authorize and could not authorize the union, the branch or any other body within the union or branch to resolve upon a policy, or to take steps designed to ensure that the members abide by a policy, of the union or of the branch where that policy (a) is contrary to one of its registered rules or (b) would be contrary to s. 140 of the Act 1f it were incorporated in a rule, or (c) would "tend to frustrate the policy and main purpose of the Act" (Hursey's case (supra)). I agree with Smithers J. that the prevention of members from seeking or taking employment available to them 1s an act inherently hostile to their interests, 1s 24. incompatible with the furtherance and protection of the interests of those members and that the powers of management, on their proper construction, do not extend to the adoption of the O.K. card policy or its implementation. The resolution of 23 August, 1977 should be read in a context which includes resolutions carried by various meetings in 1976 and 1977 which are conveniently set out in passages in the judgment of the learned trial Judge. They were not challenged by the appellants, and commence with a reference to a mass meeting of members of the branch on 9 April, 1976, where the resolution carried included "... our firm declaration to uphold and carry out all the present and future rules and policies of the Union with special emphasis on our OK Card." On 10 August 1977, following the judgment of the Australian Industrial Court, a meeting of delegates and Fathers of the Chapel (F.0.C.), being honorary officers of the Branch, met and resolved in substance that no person would be allowed to start work without first having obtained an O.K. Card from the Branch, that no member would be allowed to work outside his or her classification without the permission of the Branch and that the rules and policy of the "— Union would be adhered to strictly. a 25. On 15 August 1977 a special meeting of the Executive of the Branch resolved as follows ~ "That the executive implements the decision of the 9th April, 1976 industry mass meeting, and further that the recommendations of the FOCs and delegates meeting of 10th August, 1977, be endorsed, and that the date of Tuesday, 23rd August be scheduled for the recommended mass meeting and the bulletin as printed, be circulated with any necessary amendments." The resolution of 23 August 1977, referred to in the orders under appeal, was of a mass meeting of members of the Branch who adopted a resolution which included the following :- "This PKIU NSW Industry Mass Meeting instructs all members in all shops ... to maintain the strictest adherence to continuing the use and issue of our OK Card." woe erses "We support our Federal Secretary, our NSW Branch Executive and officials, together with all members who have worked and demonstrated to protect our rules and policies and we condemn and will remember those who have sought and are seeking to do us so much harm." "On 5 September, 1977, a meeting of the Executive of the Branch endorsed the resolution passed at the mass meeting on 23 August 1977. The policy thus adopted has been published in the journal of the Branch; a typical example of the publicity given to the policy is the following advertisement which has been published regularly: 26. "OK CARDS The attention of all members is drawn to the rules and policies of the Branch regarding employment. Canvassing of jobs is not permitted and no member shall start work without an OK Card." The resolutions carried before 23 August, 1977 reinforce my opinion that the resolution carried on that day, to which the orders under appeal referred, cannot be regarded as merely a declaration of policy in respect of which the members were to be subject to no more than "advocacy" and "moral persuasion" by the executive committee, the officers and the organizers. In any event, for the reasons already given, I do not consider that the branch or its committees or officers or organizers were authorized to establish or confirm the O.K. card policy. In my opinion the learned trial Judge had power under s. 141 to make an order giving directions to the respondents in the terms of the first order set out earlier. Mr. Ryan submitted that the second order made is too wide and is not authorized by s. 141 in that it would restrain the respondents from taking action in the form of advocacy or persuasion or recommendation by them, with the object of furthering the O.K. card policy. ra 27. I have already expressed the opinion that the O.K. card policy could not validly be established or confirmed by the branch or its committee or officers or organizers. In my opinion, the Court had power to give directions that the respondents perform and observe the rules of the union by refraining from taking any action with the object or effect of enforcing the O.K. card policy as instructed by the mass meeting of members of the branch on 23 August, 1977. Accordingly, the appeal should be dismissed. I certify that this and the preceding 26 pages are a true copy of his Honour Mr, Justice Keely's Reasons for Judgment herein. Dated 2A OM, . L, «Abe = , A Loe IDpen ile: ar an 2: wT Eee ec eee Associate