- Industrial Law - Leave to Intervene - duplication of represontation - legitimate intcrest. Conciliation and Arbitration Act 1604 (Cth) s. 106(2); s. 145; s. 119 Owens _v Australian Building Constiuction Employees and Builders Labourers Federation 1978 46 F.L.R. 16 Australian Collieries Staff Association v Thicss Dampicr Mitsui Coal Pty. Limited (Unreported 22 March 1983) Hasset_ v Harding (1976) 27 F.L.R. 457 GRAY J. ADELAIDE 23 JULY 1984 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIAN DISTRICT REGISTRY No. 5.A.5 of 1984 INDUSTRIAL DIVISION BETWEEN: FEDERATED ENGINE DRIVERS' AND FIREMAN'S ASSOCIATION OF AUSTRALASIA Applicant GENERAL MOTORS-HOLDEN'S LIMITED Respondent JUDGE: GRAY J. DATE: 23RD JULY 1984 EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: The Application in this matter, dated 19 June 1984, claims a penalty for a breach or non-observance of the General Motors-Holden's Limited (Part 1) General Award 1982 ("the Award"). The particular provision of which breach is claimed is clause 7(h), which reads as follows: The company may deduct from moneys due to an employee such amount as is authorized in writing by the employee for a lawful purpose specified in the authority. In the Application, it is alleged that deductions have occurred from moneys due to one William Edward Thornton, without the authority in writing of Mr. Thornton. Points of claim were filed on 9 July 1984, In substance, they allege as follows: Thornton is alleged to have been a member of the applicant ("the F.E.D.F.A."), and to have been employed as a forklift driver at the Respondent's manufacturing premises at Elizabeth in South Australia. It is said that Mr. Thornton formerly authorized in writing the Respondent ("G.M.H.") to deduct from his wages amounts in respect of contributions due to the Vehicle Builders Employees Federation of Australia, ("the V.B.E.F."). It ig further alleged that Mr. Thornton, by notice in writing dated 6 February 1984, which became effective on 7 May 1984, resigned his membership of the V.B.E.F. He then, so it is said, cancelled or revoked his authority to G.M.H. to deduct contributions in favour of the V.B.E.F. The gist of the claim is that, notwithstanding that cancellation or revocation, G.M.H. has continued to make those deductions without authority. Application has been made on behalf of the V.B.E.F. for leave to intervene in the proceedings. The application is supported by affidavit of Leonard Cecil Townsend sworn 4 July 1984. Mr. Marshall appeared in support of the application for leave to intervene. Mr. Clayton who appeared for G.M.H., did not put any submissions on this application. Mr. McCusker, on behalf of the F.E.D.F.A., relied on an affidavit of Harold Leonard Luke Heffernan sworn on 9 July 1984. There is also an affidavit in reply of Mr. Townsend, sworn on 17 July. Section 106(2) of the Conciliation and Arbitration Act 1904 assumes a power in the Court to grant leave to intervene and limits the exercise of that power to a case where the Court is of the opinion that it is desirable that a person or organization should be heard. In considering this power, the Full Court in Owens v Australian Building Construction Employees and Builders Labourers Federation (1978) 46 F.L.R. page 16 at page 22 held that intervention should not be lightly allowed. At page 24 the Court said: In our view, it would not be desirable to allow intervention merely to strengthen a case or to allow relevant matter to be put twice or with greater emphasis. The Full Court was there dealing with a case in which the application to intervene was made late. Not only had the issues in that case been defined, but the evidence had begun. Indeed, cross-examination of a witness was proceeding when counsel for the proposed intervenor first appeared. In this case, the application has been made promptly. The pleadings in the sense of points of claim and points of defence have not closed, and it is necessary for the court to look at the potential issues which may arise. This makes it more difficult to judge whether the effect of intervention would be to strengthen or duplicate the arguments which will be otherwise put. One of the complaints which the V.B.E.F. makes is that its situation may be prejudiced by G.M.H. failing to put arguments on various issues. All this being 30, it is nevertheless the case that the Court must consider the application on the footing that intervention will not be allowed lightly. Mr. Marshall put the case for intervention on behalf of the V.B.E.F. ina number of ways. I propose to deal with them separately. In the first place it wag said that the Application of the F.E.D.F.A. involves the interpretation of rule 22 of the V.B.E.F. rules, relating ~o resignation from membership, and an examination of the propriety of the V.B.E.F.'3 actions in refusing to accept the resignation of Thornton. Mr. Marshall cited Hassett. v Harding (1976) 27 F.L.R. 457; Federated Moulders (Metals) Union of Australia v Aylen (1976) 26 F.L.R. 276, and Kenna v Egan (1960) 1F.L.R. 387 in support of a proposition that a point of law as to the validity of Mr. Thornton's resignation from membership was raised. A number of points can be made about this. The first is that rule 22 of the V.BH.E.F.'s rules is not by any means exclusively involved. Section 145 of the Conciliation and Arbitration Act 1904 is applicable to ail organizations, and overrides the rules of an organization in every case. Any point, therefore, on the validity or otherwise of a resignation of this kind would not be exclusive to the V.B.E.F. in the sense of involving only an interpretation of its rules. More importantly, although Mr. Thornton's resignation is alleged in the points of claim, it does not appear to be crucial to the issues in this case. Even if Mr. Thornton remained a member of the V.B.E.F., if he validly revoked the authority given to G.M.H. to deduct dues in favour of the V.B.E.F., and if deductions continued to be made, there would be a breach of the Award. It goes without saying that if no valid resignation occurred, the V.B.E.F. would have all rights which would otherwise be available to it with respect to the membership of Mr. Thornton. I should also say that, notwithstanding the suggestion by Mr. Marshall that the case involved an examination of the propriety of the V.B.E.F.'s actions in refusing to accept the resignation of Mr. Thornton, nowhere 13s any application for such an examination to be found in the points of claim or indeed in the affidavits filed on behalf of the F.E.D.F.A. The authorities to which Mr. Marshall referred in the context of resignation of membership appear to me to be readily reconcilable, and the court would not in the normal case require the assistance of the V.B.E.F. on that issue, even if resignation were an essential issue in the case. Mr. Marshall also placed reliance on an allegation that a demarcation dispute exists between the F.E.D.F.A. and the V.B.E.F. On the affidavit material there is a controversy as to whether an agreement was entered into between the F.E.D.F.A. and the V.B.E.F. to the effect that the F.E.D.F.A. would not seek to enrol certain classes of employees at G.M.H. Mr. Marshall placed reliance on the unreported decision of 8t. John J. in Australian Collieries Staff Association v Thiess Dampier Mitsui Coal Pty. Limited (Judgment delivered on 22 March 1983). He sought to derive from that case support for the proposition that the Court would more readily grant leave to an applicant for intervention in a case where a demarcation dispute between that applicant and one of the parties to the proceedings before the court existed. That decision, however, is readily distinguishable from the situation which pertains in this case, In the case before St. John J., the object of the proceeding was to establish the applicability of an award of the Coal Industry Tribunal and thereby to oust the appliation of an award of the Federated Clerks Union. In such a situation, it was plainly right to allow the Federated Clerks Union to intervene in the proceedings to protect its position and the application of its award. In a legal sense, in that case therefore, the demarcation dispute was part of the case. The same cannot be said in this case. Ina legal sense in this case the demarcation dispute is not only not central but is very largely irrelevant to the issues. The issues in this case could be determined without reference to the question whether a demarcation dispute exists at all. No issue raised by the points of claim in this case refers to or raises any question of the demarcation dispute. In my view it is most undesirable for the Court to grant leave toa party to intervene where such leave is likely to expand the issues involved in the case. This Court is not 7. equipped with the machinery to decide a demarcation dispute and does not exercise that function under the Conciliation and Arbitration Act 1904. Other provisions of that Act are available to be used for the resolution of such disputes. In conjunction with the demarcation issue, there was raised a possible issue of the construction of the constitution rule of the F.E.D.F.A. That rule is found in rule number 1 of the federal rules of the F.E.D.F.A., which are before me. The issue, in simple terms, is as to whether the words, "connected with the production or utilisation of power" found in that rule qualify all of the classifications which go before, or only those that immediately precede those words. It is necessary for the F.E.D.F.A. to be an organization affected or the members of which are affected by the breach alleged for it to have standing to bring this proceeding: section 119(2)(b) of the Concilation and Arbitration Act 1904. For the purposes of this proceeding, I am prepared to accept that, if the F.E.D.F.A. could not enrol Mr. Thornton as a member, it is not within the category of an organization affected, or the members of which are affected, by the breach alleged. However, it was never clear that the issue of the construction of the F.E.D.F.A.'s constitution rule was a real one. In paragraph 4 and paragraph 26(c) of the affidavit of Mr. Townsend, sworn 4 july 1984, it is merely stated that there is a serious doubt about the constitutional capacity of the F.E.D.F.A. In his submissions, Mr. Marshall made it clear that 8. the V.B.E.F. may not pursue any issue of constitutional capacity. I point out that if intervention is not permitted, the V.B.E.F. would not be shut out under other provisions of the Conciliation and Arbitration Act 1904, if it wished to pursue the demarcation issue. I would not grant leave to intervene on the issue of constitutional capacity of the F.E.D.F.A. if that issue is raised in such a halfhearted manner. It was also pointed out to me that the V.B.E.F. isa party to the Award. If the proceedings were brought under section 110 of the Concilation and Arbitration Act 1904, the V.B.E.F. would have a statutory right to appear and to be heard on the issue of construction of the Award. It is perhaps worth pointing out that such a statutory right is not given under section 119, even though questions of construction of awards frequently arise under that section. The intention of section 110 seems to be more that a definitive interpretation binding all of those party to an award should be given. If I were to grant the V.B.E.F. leave to intervene simply on the basis it is a party to the Award in this case, I should also have to grant similar leave to all of the other organizations that are parties to the Award. In addition, Mr. Marshall was not able to point me to any real issue as to the construction of clause 7(h) of the award, or the construction of any other provision. It therefore appears to me that I should not grant leave to intervene on this ground. Central to the claim of the F.E.D.F.A. against G.M.H. is the issue whether the authority of Thornton to deduct moneys from his wages has been revoked. This issue involves the question whether that authority was capable of revocation, as well as the factual issue whether any act of revocation occurred. As to this question it does seem to me that the V.B.E.F., as the recipient of the money deducted pursuant to the authority, has a legitimate interest. Without knowing what attitude the Respondent will take on this issue, the Court cannot know if the V.B.E.F. might be prejudiced by the determination of it, or by its being allowed to go by default. It is also possible that the Court might be assisted by evidence by the V.B.E.F., or submissions on its behalf, on this point. Mr. McCusker argued that, even if the authority were properly revoked, it would still be open to the V.B.E.F. to pursue other means of extracting payment of dues from Mr. Thornton, if he is still a member. This is true, but in my opinion the V.B.E.F. still has an interest in the maintenance of its check-off system with respect to Mr. Thornton. I am, therefore, of the view that the V.B.E.F. should be granted leave to intervene in these proceedings, it having, in my opinion, a legitimate interest in that issue. Mr. McCusker urged that I should, if I were disposed to grant leave to intervene, grant that leave on terms. Without the clarification of the issues, which will result from the filing of points of defence, the drafting of suitable terms on which to 10. grant leave to intervene would be difficult, if not impossible. Leave will therefore be granted in absolute terms. In doing this I emphasize, however, that the Court will not permit by such intervention the creation of issues which would not otherwise exist, and the Court will be vigilant to ensure that the V.B.E.F. does not exceed its legitimate role in this proceeding in the part that it takes. I grant to the Vehicle Builders Employees Federation of Australia leave to intervene in the proceeding. I direct that points of contention be filed and served by the Vehicle Builders Employees Federation of Australia within 14 days of this day. I fix Tuesday, 4 September 1984, as the date for the hearing of this matter. I adjourn the directions hearing to a date to be fixed, and reserve liberty to either party and the intervenor to apply.