CATCHWORDS INDUSTRIAL LAW - Application for inquiry into union election - Validity of election of delegate to Federal Council - Interpretation of rules - Eligibility of successful candidate - Whether successful candidate was "wholly employed" in the industry at the time of joining the union, she then being on leave of absence without pay from the employment of the union itself - Whether successful candidate was "bona fide" member of union, she having been influenced in joining the union by a desire to stand for elective officer - Certificate under s.168 that applicants acted reasonably in bringing Application. Conciliation and Arbitration Act 1904 ss.159, 168. No. NSW 16 of 1987 IN THE MATTER of an election for an office in the Clothing and Allied Trades Union of Australia an organisation registered pursuant to the Conciliation and Arbitration Act. AND _IN THE MATTER of an application pursuant to Section 159 of the Act. KENNETH JOHN COLLINS (Applicant) No. NSW 17 of 1987 IN THE MATTER of an election for an office in the Clothing and Allied Trades Union of Australia an organisation registered pursuant to the Conciliation and Arbitration Act. AND_IN THE MATTER of an application pursuant to Section 159 of the Act. PATRICK DAVID McGARRY (Applicant) Wilcox J 1 4 MAY 1987 Sydney ; FREDERAL COURT O 28 April 1987 AUSTRALIA. PRINCIPAL MEG STRY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION CORAM: WILCOX J PLACE: SYDNEY DATE: 28 APRIL 1987 No. NSW 16 of 1987 IN THE MATTER of an election for an office in the Clothing and Allied Trades Union of Australia an organisation registered pursuant to the Conciliation and Arbitration Act. AND IN THE MATTER of an application pursuant to Section 159 of the Act. KENNETH JOHN COLLINS Applicant MINUTES OF ORDER THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The applicant have a certificate under s.168(2) of the Conciliation and Arbitration Act that he acted reasonably in applying for the inquiry. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION No. NSW 17 of 1987 wee ww IN THE MATTER of an election for an office in the Clothing and Allied Trades Union of Australia an organisation registered pursuant to the Conciliation and Arbitration Act. AND IN THE MATTER of an application pursuant to Section 159 of the Act. PATRICK DAVID McGARRY Applicant CORAM : WILCOX J PLACE: SYDNEY DATE: 28 APRIL 1987 MINUTES OF ORDER THE COURT ORDERS THAT: l. The Application be dismissed. 2. The applicant have a certificate under s.168(2) of the Conciliation and Arbitration Act that he acted reasonably in applying for the inquiry. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION No. NSW 16 OF 1987 IN THE MATTER of an election for an office in the Clothing and Allied Trades Union of Australia an organisation registered pursuant to the Conciliation and Arbitration Act. AND IN THE MATTER of an application pursuant to Section 159 of the Act. KENNETH JOHN COLLINS Applicant No. NSW 17 of 1987 IN THE MATTER of an election for an office in the Clothing and Allied Trades Union of Australia an organisation registered pursuant to the Conciliation and Arbitration Act. AND IN THE MATTER of an application pursuant to Section 159 of the Act. PATRICK DAVID McGARRY Applicant CORAM: WILCOX J PLACE: SYDNEY DATE: 28 APRIL 1987 EXTEMPORE REASONS FOR JUDGMENT There are before the Court Applications by two members of the Clothing and Allied Trades Union. The Applications are brought under s.159 of the Conciliation and Arbitration Act 1904 and they each seek an inquiry by the Court into alleged irregularities in connection with a recent election within the union of a New South Wales delegate to the Federal Council of the union. The union is an organisation registered under the Conciliation and Arbitration Act. The basis of each Application is identical and by consent both matters have been heard together. There is no complaint made about the conduct of the election, in which the successful candidate was the first respondent, Anna Christina Booth. The second respondent is the union itself. Although the Applications questioned whether Ms Booth was a financial member at the time of the election this point is not pressed. Two matters are argued on behalf of the applicants: whether Ms Booth was, at the time she joined the union, 2 December 1985, eligible to be a member of the union; and, if so, whether she was eligible to be a candidate for the office to which she was declared elected. Ms Booth became employed by the union in August 1977 as a part time research officer. In November 1977 that employment became full time and she worked in this capacity with the union for approximately five and a half years. In May 1983 Ms Booth was granted leave of absence without pay for six months in order to take up a temporary position with the Trade Union Training Authority. She then returned to the union and continued to work in her former capacity. In July 1984 a decision was made by the Federal Council of the union by postal ballot to grant to her what was called "two years leave of absence". Ms Booth went on leave of absence from 9 September 1984 and she did not perform any further work for the organisation until 3 February 1986. On 11 September 1984 Ms Booth commenced employment in the Australian Public Service as Director, Education/Research, Business Union Consultation Unit, in the Department of Trade. This was a full time position in the public service at a salary commencing at $36,612 per annum which increased during her period of service to approximately $39,000. During her time with the public service Ms Booth joined the Administrative and Clerical Officers Association. Ms Booth resigned from the Australian Public Service on 28 October 1985, the resignation taking effect as from 22 November 1985. Miss Booth decided that she wished to work for some time in the clothing industry and she was successful in agranging employment with King Gee Clothing Company as from 2 December 1985. This employment was a full time job as a sorter in the cutting room but at a wage well below her public service salary. She remained in that employment until 31 January 1986, although there was a period of three weeks during that time when she was not actually performing any duties because of the Christmas shut down. She says that she actively performed duties for six weeks during that period. On 2 December 1985, that is to say the first day of her employment with King Gee Clothing, Ms Booth joined the Clothing and Allied Trades Union of Australia as a member. As I have said, it is conceded that she has retained her status as a financial member -~- assuming initial eligibility -- since that date. After she left King Gee Clothing Ms Booth returned to work for the union, commencing duties on 3 February 1986 in the position of Senior Industrial Officer. In December 1986 one of the New South Wales delegates to the Federal Council resigned. As a consequence it became necessary for the Industrial Registrar to carry out an election to fill the vacancy. Nominations for the election opened on 12 February 1987. Ms Booth nominated on 16 Pebruary 1987. Nominations closed on 27 February 1987 and on 2 March 1987 the returning officer declared her elected unopposed to the position. On 3 April 1987 Mr Fred Peterson, the General Secretary/Treasurer of the organisation resigned his position as from 30 April 1987. Ms Booth has been appointed as Acting General Secretary/Treasurer and she hopes to stand for election to the position as General Secretary/Treasurer when nominations open. The first question for consideration is whether Ms Booth was at the date of joining the union a person eligible to be a member. Clause 3 of the rules of the union provides that "the union shall consist of an unlimited number of employees wholly employed in any one or more of the following industries". The clause then goes on to set out a list of activities and it is conceded that the work carried out by Ms Booth on behalf of King Gee Clothing falls within that list. It is said, however, that when she was working for King Gee Clothing she was not "wholly employed" in the relevant industry because there had been no termination of her contract of employment with the Clothing and Allied Trades Union. The evidence is that when Ms Booth was granted leave of absence in 1984 it was on the basis that there would be no increment to her rights in respect of matters such as long service leave or superannuation during the period of her absence but that she would retain her already accrued rights. Apparently when she returned to the service of the employ of the union in February 1986 she was able to take up where she had left off in regard to those previously accrued rights. It is common ground that, during the period of the leave of absence, she neither performed any work for the union nor received any emoluments. Counsel for the applicants refers to two authorities relating to the status of a person where there has been no termination of a contract of employment; but where work has not actually been performed. I think that the more useful of 6. these authorities is the decision of the English Court of Appeal, Morgan v Fry [1968] 2 QB 710. That case involved a suspension of activity because of a strike. Mr Phillips calls attention to what was said by Lord Denning MR, at p.728, where he referred to the position which applies where work is not being done during the period of a strike; yet neither the employer nor the employee has terminated the contract of employment. Lord Denning said this: "If a strike takes place, the contract of employment is not terminated. It is suspended during the strike and revives again when the strike is over." I think that it is accurate to use the word "suspended" as a description of the situation regarding Ms Booth's contract of employment during the period of her leave of absence from duties as from September 1984. She had not resigned. The union had not terminated her employment. But, by agreement, she was not carrying out any duties and she was not receiving any salary or other reward. The contract remained on foot but its performance was suspended until such time as Ms Booth resumed her duties or, alternatively, one or other of the parties terminated the agreement. The question then is whether the fact that a person has the benefit of a suspended contract of employment with one employer prevents that person being "wholly employed" by another employer in the clothing trade. This question must be answered in the negative. The phrase "wholly employed" must be read as being opposed to "partly employed". I think that the notion was to cover only persons whose sole remunerative 7. activity was in the clothing industry, as distinct from people who engaged in the industry on a part time basis in conjunction with other remunerative employment. There may be many such people in the clothing trade. During the time that Ms Booth was with King Gee Clothing she was a full time employee. She apparently served the employer for the normal number of hours each week, doing the same work as any other person of her classification and receiving the same wage. I do not think that the fact that she had the right to go back to some other employment derogated from the fact that she was at the time fully -- that is "wholly" -~ employed by King Gee. It would have been different if she had been actively working for -- and being paid by -- the union during that time and had been employed by King Gee Clothing for only part of her working day or working week. The second matter turns upon cl.16(c) of the rules. Clause 16 deals with the constitution of Federal Council. Sub-clause (c) deals with eligibility and is in the following terms: "Delegates to the Federal Council shall be bona fide members of the Union who have been continuously financial for twelve months immediately prior to their election, but members of any Union that have amalgamated with this Union who in the aggregate were members of the respective Unions for twelve months shall be eligible for election to Federal Council." For the purposes of this second argument counsel for the applicants concede that Ms Booth was a member of the union. He does not dispute the fact that she was continuously financial for 12 months immediately prior to the election. He says, however, that Ms Booth was not a "bona fide" member of the union. The reason for this is that, upon her evidence, Ms Booth undertook her employment with King Gee Clothing for two reasons: one, to gain experience in the industry in the workplace and the other in order to qualify herself for membership of the union with a view to standing for elective office. Ms Booth accepted the suggestion of counsel that this latter motive was her primary reason for going to King Gee Clothing. She also gave evidence that at that time she had in mind eventually nominating for the position of General Secretary/Treasurer of the union, having been given some information by the then incumbent, Mr Peterson, of his intention to resign before long. On the basis of this evidence counsel submits that Ms Booth was not a bona fide member because her motive was other than to serve indefinitely in the industry. I am unable to read the sub-clause in this way. It seems to me that the term "bona fide" has been added as a qualification of the word "members" in order to exclude a person who may appear on the roll of membership of the union but who was not in fact entitled to appear on that roll, for example, because the person was never eligible to be a member at the time of joining or because that person failed to comply with some formal requirement. In other words, for the purpose of determining eligibility pursuant to cl.16(c), one looks at the substance rather than the appearance of membership. No doubt there is room for saying that a bona fide member is a person other than a person who has taken membership as a sham; that is to say, not intending genuinely to be a member. But I do not think that the sub-clause is at all concerned with motive. There is a variety of reasons for joining a trade union. Some people may join because of conviction, born of the view that it is in the mutual interests of employees within an industry that they band together in an industrial organisation. Some of them may join with a view to standing for elective office, either in the union or in some other organisation. Some of them may join only because they would not otherwise be able to obtain a particular job. Some people may join the union without giving much thought at all to their motives, but simply because they are asked to join. In each case, in my view, those people are genuine members of the union. They have satisfied both the eligibility and the formal requirements. It would be an extremely onerous task if the returning officer had to inquire into the motives for which each candidate for election to the Federal Council had originally joined the union; and indeed what were the motives which caused those people to continue as members of the union up to the date of nominating for office. It is clear that Ms Booth had in mind running for elective office when she joined the union, but there is no reason to doubt that she shared the objectives of the union -- for which after all she had worked for a considerable period -- and that she genuinely desired to do what she could to advance the interests of the union and of its members. There is no reason to doubt that in joining the unions she did so 10. bona fide, as distinct from as a sham. In my view she was eligible within the meaning of ¢l.16(c) to stand for office as a delegate to the Federal Council. It follows that each of the matters raised by the applicants, in their call for an inquiry, is without substance. Section 159(4) of the Act provides that the Court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the Application. In no way do I criticize the applicants for bringing the Application but, the matters desired to be raised having been fully argued on their behalf, I think that it emerges that there is not, in fact, any reasonable ground for the Application. Consequently that it would be pointless to proceed with the hearing of an inquiry. The appropriate order in each matter is that the application be dismissed. Notwithstanding the fact that I have ruled against the applicants on both points and have dismissed the application for the inquiry, I did so after full argument on those questions and I am prepared to grant a certificate under s.168(2) of the Act that the applicants acted reasonably in applying. I might say that, in coming to that conclusion, I have taken into account in their favour that they have co-operated in the matter being dealt with both in an expeditious fashion and in a way which minimises costs; and I ll. think that one is entitled to have regard to all of those circumstances in determining reasonableness. So I will grant a certificate under s.168(2) of the Act. I certify this and the ten (10) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. nasocistes ey wrrcdiOD Date: 4 May Counsel for the Applicants: Mr G Phillips Solicitors for the Applicants: Robert A Hannam & Co Counsel for the Respondents: Mr R Kenzie QC with Mr M Kimber Solicitcrs for the Respondents: Steve Masselos & Co Date(s) of hearing: 28 April 1987