INDUSTRIAL LAW - membership of organisation - entitlement to membership - duty of Union to process applications for membership - policy of deferring membership applications - breach of statutory duty - breach of duty under the Rules - motion for summary judgment - entrance fee not tendered - entitlement rot perfected - jurisdiction of court to make declaration - declaration and orders made. Conciliation and Arbitration Act 1904 s.144 Re Keogh and Federated Clerks Union of Australia; Ex parte Linehan (1979) 40 FLR 445 Australian Iron and Steel Ltd v Australasian Coal and Shale Employees Federation (1957) 1 FLR 54 Owens v Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569 United Grocers, Tea and Dairy Produce Employees' Union of Victoria v Linaker (1916) 22 CLR 176 MacKenzie v Administrative and Clerical Officers' Association, Commonwealth Public Service (1962) 5 FLR 342 Troja v AuStralasian Meat Industry Employees' Union (victorian Branch) (1978) 46 FLR 340 ROBERT JAMES FORWARD V MERCHANT SERVICE GUILD OF AUSTRALIA NO. WA 6 of 1987 FRENCH J. PERTH 22 OCTOBER 1987 IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) INDUSTRIAL DIVISION ) NO. WA 6 of 1987 BETWEEN: ROBERT JAMrcS FORWARD Applicant and MERCHANT SERVICE GUILD OF AUSTRALIA Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 22 October 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. ROBERT JAMES FORWARD is entitled upon payment of the requisite entrance fee to be admitted as a member of the Merchant Service Guild of Australia. 2. Upon payment by ROBERT JAMES FORWARD of the entrance fee required under the Constitution and Rules of the Merchant Service Guild of Australia he will thereupon become a member of the Guild and the Guild is required thereafter to treat him as one of its members. 3. There will be liberty to apply. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Fedeal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION www vw NO. WA 6 of 1987 BETWEEN: ROBERT JAMES FORWARD Applicant and MERCHANT SERVICE GUILD OF AUSTRALIA Respondent CORAM: FRENCH J. 22 October 1987 REASONS FOR JUDGMENT Robert James Forward, who is 30 years of age, is employed by Ball & Sons of North Fremantle as a deck-hand. He has been employed in that capacity for the past 5 years and 7 months. Since March 1987 however, he has had the qualifications necessary to be a Launch Master. His qualifications are:- l. Master Class 5 Certificate of Competency 2. Marine Engineer Driving Certificate Class 2 3. Radio Operator (Master 5) Certificate 4. Radio Telephone Operator's Certificate (Restricted) On 27 August 1987 Forward's employers offered him a promotion to fill a vacancy as a Launch Master. He accepted the 2. offer. In order to engage in the work of a Launch Master however, 1t was necessary for him to become a member of the relevant union, The Merchant Service Guild of Australia. The Guild 1s registered under the Conciliation and Arbitration Act as an organisation of employees. On 28 August Forward took a letter of application to the Fremantle office of the Guild. He was told he would have to lodge an application form in accordance with the Rules and produce his certificates. This he did a few days later. He followed up the application with a number of attempts to contact the Guild secretary, Mr Trevor Johnson, by telephone. When he finally made contact on 22 September 1987, Forward was told that his application was at the end of a line of some 94 which were waiting to be processed. He would have a long wait, he was told, because those ahead of him would be considered for membership as and when a relevant job vacancy arose. He was offered the consolation that some of those on the waiting list might not want a particular job as it became available. 3. Forward protested that he was not looking for a job as he had the offer of one, but his protest was of no avail. He says, in an affidavit filed in these proceedings, that he knows of people who have had to wait 2 years after applying for membership of the Guild before their membership was accepted. He cannot take up the job offered to him unless he 1s a member of the Guild. He says that if he were to do so and work without being a member, his employer's business would be black- banned. He says also that he is and always has been willing to pay to the respondent all entrance and other fees or levies that may from time to time be due or payable by or imposed upon him while he 1s a member of the respondent. He has now instituted proceedings under the Conciliation and Arbitration Act for a declaration that he 1s entitled to be admitted as a member of the Guild. The application was served on 8 October 1987. Served with it was a notice of motion for summary Judgment, together with a supporting affidavit. It is that motion for summary judgment which now falls for decision. The respondent did not file any answering affidavit, nor did it appear in Court or otherwise contest the motion. Statutory Framework The application 1S made pursuant to 5.144 of the Conciliation and Arbitration Act which establishes the entitlement of certain classes of person to union membership and provides the means by which they may enforce it. The basic right to membership 1s established by sub-s. 144(1):- "(1) A person employed in connection with an industry, or engaged in an industrial pursuit, is, unless he 1s of general bad character, entitled, subject to payment of any amount properly payable in respect of membership, to be admitted as a member of an organization (being an organization of employees in or in connection with that industry or of employees engaged in that industrial pursuit) and to remain a member so long as he complies with the rules of the organization." This sub-section gives a dual right to those persons who are not of general bad character and who are eligible for membership in an organisation under a constitutional rule, firstly to be admitted to the union and secondly, to remain a member so long as they comply with the rules - Re Keogh and Federated Clerks Union of Australia; Ex parte Linehan (1979) 40 FLR 445, 451 (J.B. Sweeney J.). The right so created carries with it a correlative obligation on the part of the organisation to admit the person so entitled - Australian Iron and Steel Ltd v Australasian Coal and Shale Employees Federation (1957) 1 FLR 54 at 56. 5. The statutory entitlement is tied to the eligibility "(2) Sub-section (1) does not entitle a person to be admitted as a member of an organization unless he is included in a category of persons who are eligible for membership of the organization under the rules of the organization, or to remain a member 1f he ceases to be so included and the rules do not permit him to remain a requirements of the rules of the relevant union by sub-s.144(2):- member." with an The categories of person who are "employed in connection industry" or "engaged in an industrial dispute" are expanded by sub-s.(3) so that:- "(3) For the purposes of this section - (a) a person whose usual occupation is that of employee in an industry or engagement in an industrial pursuit; or (b) a person who is qualified to be an employee in an industry or to engage in an industrial pursuit and desires to become such an employee or so to engage, shall be deemed to be employed in that industry or to be engaged in that industrial pursuit." The exemption provided by sub-s. (4) in relation to members of unlawful associations 1s inapplicable. Provision is made in sub-s.144(5) for an application to be made to the court in the following terms:- "Where a question or dispute arises as to the entitlement under this section of a person to be 6. admitted as, or to remain, a member of an organization, that person, a person who is or desires to become the employer of that person or the organization may apply to the Court for a declaration as to the entitlement of that first-mentioned person under this section." The jurisdiction of the court is conferred by sub-s.144(5A):- "(5A) Subject to sub-section (7), the Court has jurisdiction to hear and determine an application under sub-section (5) and may, notwithstanding 9 anything contained in the rules of the organization concerned, make such order to give effect to its determination as it thinks f1t." The preceding provisions have been construed as imposing upon the court a duty to give effect to any determination it may make. The order which it is given power to make must be made for this purpose. It is not appropriate to decline to make an order by reason of, for example, the objects of the Act ~ Owens v Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569, 579 (Full Court). Certain powers of the court are particularised under sub-s.144(6):- "(6) The orders which the Court may make under sub-section (5A) include an order requiring' the organization concerned to treat a person to whom sub-section (1) applies as being a member of the organization and, upon the making of such an order, or as otherwise specified in the order, the person specified in the order becomes, by force of this Act, a member of the organization." " And 7. Sub-section 144(7), no doubt out of an abundance of caution, imposes a requirement on the court to give to an applicant employee and the respondent union an opportunity to be heard where an application is made under s.144. Rules of the Organisation The registered Rules' of the respondent set out membership qualifications in Rule 3 which include the following:- "Members of the Mercantile Marine and dependent services possessed of certificates of competency issued or recognised by the Commonwealth of Australia, or any State thereof, the Board of Trade, or by any British possession or dependency, or possessed of any qualifications entitling him to undertake any duty connected with the navigation of vessels, may be elected as members." Rule 5 lays down the procedure by which application for membership 1s made:- "(1) An intending member shall complete and sign the form of application for membership as appears in Schedule 1. He shall forward the application form together with his entrance fee to the Federal Secretary/Treasurer. The Federal Secretary/ Treasurer shall place the application before the next meeting of the Federal Executive who will admit the applicant to membership provided the applicant is not of general bad character and 1s eligible for membership in accordance with Rule 3 hereof. The Federal Executive shall allocate the new member to his appropriate Division and the Federal Secretary/Treasurer will advise him of his admission to Division membership and his Branch allocation." ed ee oe ee ree ae LAE aia et Fr 8. The entrance fee 18 specified in Rule 6 as "the sum of One hundred and fifty dollars per member plus any further amount as may be decided by the Federal Council of (sic) any properly constituted sitting of such Council". Rule 5 imposes on the Federal Secretary an obligation to place the application before the Federal Executive. It also places on the Federal Executive an obligation to admit the applicant to membership provided he 1s not of "general bad character and is eligible for membership in accordance with Rule 3". The Entitlement to Membership It is evident from the language of Rule 5 that the obligations of the Secretary and the Executive to process an application for membership are contingent upon the signed form of application being forwarded with the entrance fee. - United Grocers, Tea and Dairy Produce Employees' Union of Victoria v Linaker (1916) 22 CLR 176, 179 (Griffith CJ), 180 (Barton J.) The obligation to admit to membership has not crystallised in this case and will not crystallise until the entrance fee is paid or at least tendered. But the applicant's entitlement to membership is in dispute not on that ground, which can readily be remedied, but 9. upon the Secretary's assertion of a right to defer processing of applications in the implementation of a queue-based job allocation policy. That assertion has no foundation in law and 1s contrary to the plain intent of the Act and the respondent's own Rules:- "The purpose of section 144 1s to give to a person otherwise qualified the right to join the organisation upon the basis provided under its Rules for new members generally." - MacKenzie v Administrative and Clerical Officers' Association, Commonwealth Public Service (1962) 5S FLR 342, 353 (Spicer CJ) There is no doubt in this case that the applicant is possessed of qualifications which entitle him to undertake duties "connected with the navigation of vessels". He 1s therefore qualified under Rule 3 to be elected as a member of the respondent. His entitlement must be perfected by payment of the requisite entrance fee. But the jurisdiction of the court is attracted whenever there is "a question or dispute...as to the entitlement under the section of a person to be admitted as ...a member of an organization". There is nothing to say that the entitlement must be perfected before the jurisdiction can arise or the powers of the court be invoked. 10. Nor does anything turn on the fact that there has been no outright refusal to admit to membership - Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340, 350 (Keely J.) It 1S, in my opinion, within the power of the court under sub-s.(5A) to make a declaration as to the entitlement of the applicant to be a member of the respondent upon payment of the requisite entrance fee. It is also within the power of the court to order that the respondent treat the applicant as a member upon payment of that fee. In this case I am_ satisfied the applicant has established that, subject to payment of the entrance fee, he 1s entitled to be admitted as a member of the Guild. The stated policy of the Secretary in relation to the processing of membership applications 1s contrary to his duty under the Rules. Insofar as it is authorised by the Federal Executive, 1t reflects a refusal on the part of the Executive to attend to 1ts clear duty to admit qualified persons to membership. In the event I propose to make orders in terms of the Minute of Order which is annexed to these reasons. we er Tre ll. I certify that the preceding ten (10) pages are a true copy of the Reasons for Judgment of his Honour Justice French. ASSOCIATE: "defo S~ Uxeuts DATE: 2a. jo 8) Counsel for the Applicant: Mr P. Gethin Solicitor for the Applicant: Patrick J. Gethin NO appearance for the Respondent Date of Hearing: 21 October 1987 Date of Judgment: 22 October 1987