100213102

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES TERENCE MCPARLAND

APPLICANT

 - and -

 THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

RESPONDENT

CORAM HIS HONOUR THE PRESIDENT P J SHARKEY

DELIVERED  TUESDAY, 5 NOVEMBER 2002

FILE NO/S PRES 30 OF 2002

CITATION NO. 2002 WAIRC 06935

_______________________________________________________________________________

Decision  Application dismissed

Appearances

Applicant   Mr T McParland, in person

Respondent   Mr T J Dixon (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

INTRODUCTION

1         This is an application by the abovenamed applicant (hereinafter called “Mr McParland”) made pursuant to s.66 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

2         At all material times, the respondent was an “organisation”, as that word is defined in s.7 of the Act.  At all material times, Mr McParland was either a member of the respondent organisation or had been a member.  It was not the position that he had applied for membership and had not been admitted to membership.  However, for those reasons, it was clear that I had jurisdiction to hear and determine this application.

3         Put briefly, by this application Mr McParland alleges that on 28 March 2002, when he went to the office of the respondent at 27 Moore Street, Perth, in order to pay his membership subscription in accordance with the account received by him, his membership renewal was refused and his membership of the respondent has not been renewed.  It is not denied that that occurred or that he is no longer a member.

4         The crux of the complaint was that the termination of his membership, which had occurred by the respondent not accepting his half yearly subscription payable in advance, was an act in breach of rule 8(2).  It was also alleged by Mr McParland that the respondent had not acted fairly and impartially in exercising its powers under the rules.

5         By the application Mr McParland seeks the following orders (see paragraph 10):-

“10. The Applicant seeks Orders that:

(i) The CFMEU accepts the Applicant’s half-yearly subscriptions totalling $238 for the period 31 March 2002 until 30 September 2002 forthwith;

(ii) The CFMEU not impose any additional levies, fees, fines or other monetary impost upon the Applicant for late payment of the subscriptions referred to above;

(iii) Terence McParland’s financial membership of the CFMEU be declared to be continuous and unbroken if the Applicant pays his first half-yearly subscription within 14 days of this Order.”

6         The application is opposed on the following grounds:-

“1. The Applicant is not eligible to be a member of the Construction, Forestry, Mining and Energy Union of Workers.

 2. The Applicant is in receipt of a pension and is not employed or usually employed in the callings enumerated in clause 4 of the Rules of the Construction, Forestry, Mining and Energy Union of Workers (‘the Rules’).

 3. Rule 4.7 of the Rules states that ‘no person shall be a member who is not an employee within the meaning of the Industrial Relations Act (WA) 1979 as amended’.”

7         I assume for the purposes of this application that The Construction, Forestry, Mining and Energy Union of Workers is the respondent and that the application is only addressed to the secretary on its behalf.

BACKGROUND

8         The only evidence given in this matter was by the applicant, Mr Terence McParland, on oath.  No evidence was adduced on behalf of the respondent.  Mr McParland gave evidence that he was at all times an employee who was employed in the building and construction industry.  He had worked as a builders’ labourer, for plasterers, in the refractory trade, and generally in the building and construction industry.

9         He said that he has been at various times an officer and/or perhaps employee of the respondent or its predecessor or predecessors.

10      In the 1980’s, he was secretary of the Builders Labourers Federation in the Australian Capital Territory.  He has, it was not denied, been a financial member of the respondent or its predecessor or predecessors for about 18 or 20 years.  Needless to say, there is no evidence that that ACT body bears any relationship to the respondent.

11      In April 1998, he had been employed as a casual organiser by the respondent, but his employment or appointment was terminated by the then secretary of the respondent, Mr Kevin Noel Reynolds.  One assumes that Mr McParland was not elected as an organiser under rule 16, but was appointed by the executive of the respondent as a special organiser under rule 17.  It was not suggested to me that the secretary had no power to terminate his appointment as an organiser.

12      In recent years, Mr McParland stood for the office of secretary of the respondent against Mr Reynolds.  Since 1998, he has been unemployed and first of all in receipt of unemployment benefits and then in recent material times he has been in receipt of a commonwealth government allowance which is called “Newstart Mature Age Allowance” and which I was told exists to enable a person to live whilst seeking employment.  (That has been his only income).  The nature of this benefit, as explained in evidence, was not disputed.  Mr McParland emphasised that this benefit was not a pension as such, emphasising further that he was not eligible for the old age pension until he was 65 years of age.

13      In any event, for the last three to four years, Mr McParland has not been in employment.  He has, however, for a number of years been a financial member of the respondent or its predecessors, even whilst he was unemployed.

14      On 28 March 2002, he attended at 3.15 pm at the registered office of the respondent, as I have said, in order to pay his membership subscription for the following six month period which constituted, of course, a renewal of his membership.

15      When he initially attempted to pay his subscription he was advised that he could not pay it because the computers were “down”.  He then offered to pay his subscription again, but one, Mr Tony Kelly, an organiser with the respondent, told him “We won’t take your money off you, due to the hardship as mentioned in the “Sunday Times” regarding receiving the mature age pension”.  He added “Terry, I am only acting on instructions”.  Mr McParland alleged “They took my ticket because I was on a pension”.

16      He later received a final account for the amount which he had tried to pay.  Mr McParland said that he did not pay it because he said that the computer spewed these things out, and because he did not want to surrender his continuity of membership by so doing.

17      He gave evidence that he still wishes to work, and, indeed, has to work, even though he is aged 62, because of his children and because he is not eligible for an aged pension until he turns 65.

18      It was a substantial ground of complaint by Mr McParland that he was unable to obtain employment in the building and construction industry without a ticket ((ie) without a ticket evidencing his membership of the respondent (referred to in rule 10 of the respondent’s rules)).

19      It was also his evidence that he had applied for a number of positions in the building and construction industry, it would seem informally, and these efforts had been unsuccessful.  He attributed his difficulties in obtaining employment and his inability to obtain such employment in the building industry, at least in part, to his having stood for the office of secretary against Mr Reynolds in 2000.  He described himself as a “hot potato” and “unemployable as a result”.  He said that he had been seeking work.  He does wish to stand for office again, on his evidence, or at least not to be precluded from standing for office in the respondent.  His evidence was not shaken in those respects, and I accept it and find accordingly.

ISSUES AND CONCLUSIONS

20      The respondent’s case was that Mr McParland had been refused renewal of membership because he was no longer eligible for membership.

21      The case was further that he was no longer eligible for membership because:-

a) He was in receipt of a pension and not employed or usually employed in the callings enumerated in rule 4 of the rules of the respondent.

b) He was ineligible because he was not an “employee” within the meaning of rule 4(7) of the same rules because a person who was not an employee within the meaning of s.7 of the Act is precluded from membership.

22      In s.7 of the Act an employee is defined by definitions (a) and (b) most relevantly as follows:-

““employee” means, subject to section 7B - 

(a) any person employed by an employer to do work for hire or reward including an apprentice or trainee;

(b) any person whose usual status is that of an employee;”

23      There are no provisions in the Act which at all resemble s.261(1) and (2) of the Workplace Relations Act 1996 (Cth), which provisions read as follows:-

“261(1) [Entitlement] Subject to any award or order of the Commission, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:

(a) to be admitted as a member of the organisation; and

(b) to remain a member so long as the person complies with the rules of the organisation.

 261(2) [Continued eligibility] Subsection (1) does not entitle a person to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member.”

24      Further, there is no provision in the Act, such as s.144 of the Conciliation and Arbitration Act 1904, which was discussed in Owens and Others v Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569 at 571-572 (FC-FC), and which reads as follows:-.

“(1) A person employed in connexion with an industry, or engaged in an industrial pursuit, is, unless he is 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 connexion 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.

“(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 if he ceases to be so included and the rules do not permit him to remain a member.

“(2A) Subject to sub-section (2), sub-section (1) has effect notwithstanding the rules of the organization except to the extent that it expressly requires compliance with those rules.

“(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.

“(4) …

“(5) Where a question or dispute arises as to the entitlement under this section of a person to be 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.”

25      The rules of the respondent comprise the compact between its members, even after registration of the organisation (see Roots v Mutton and Others (1979-1980) 28 ALR 439 (FC-FC)).

26      I should also observe that rules are to be construed not narrowly or technically ((ie) generously) (see R v Aird; Ex parte AWU [1973] 129 CLR 654 at 659 (HC) and see also R v Cohen and Others; Ex parte Motor Accidents Insurance Board (1979-1980) 27 ALR 263 at 264 (HC) per Barwick CJ).  Rules must nonetheless be construed as a legal document would be (see the same authorities and HSOA v Minister for Health (1981) 61 WAIG 616 at 618 (IAC) per Brinsden J with Smith J agreeing).

27      I do have to say, however, that, since the rules govern membership, and the eligibility rule in particular, which is mandatory, governs membership, if a person ceases to be eligible to be a member that person cannot be a member.  (As to the mandatory nature of eligibility rules see the principles laid down in R v The Commonwealth Court of Conciliation and Arbitration and Others; Ex parte The Brisbane Tramways Company Ltd and Another [1914] 19 CLR 43 (HC) and also United Grocers, Tea and Dairy Produce Employees’ Union of Victoria v Linaker [1916] 22 CLR 176 (HC)).

28      If that is not the case, then I would require submissions to be made to persuade me otherwise, but none such were made.

29      The eligibility rule of the respondent’s rules is rule 4.  Rules 6, 7, 8 and 10 provide for cessation of membership in various ways.  Rules 6, 7 and 8 read as follows:-

“6 - REGISTER OF MEMBERS

A Register of Members shall be kept by the Secretary. The Register shall show the names and addresses of all members, the date of joining the Union and of resignation or demise, or the date when he or she otherwise ceased to be a member of the Union, and all entrance fees, contributions, levies and fines and all other fees paid into and benefits received from the funds of the Union by all members. The Register shall be purged on not less than four occasions in each year by striking off the names of members whose membership has ended under Rule 8 of these rules.

7 - MEMBERS STRUCK OFF

Any member having been struck off the books and wishing to again become a member of the Union shall pay an entrance fee equal to the amount of the arrears of contribution, levies, fines and fees standing against him or her when so struck off.

8 - TERMINATION OF MEMBERSHIP

(1)          Termination of membership of the Union shall be effected by the giving of written notice of intention to resign. The notice of resignation shall be delivered in person or by certified mail to the Union office. The resignation takes effect from the day on which it is received by the Union or on such later date as may be specified in the notice but the member remains responsible for any subscriptions, fees, levies or fines owing up to and including the date of termination of membership.

(2)          Where a member’s subscription has expired and has not been renewed, on expiration of a period of three months, the membership is terminated but the member shall be responsible for any subscriptions, fees, levies or fines owing up to and including the date of termination of membership.

(3)          Notice of resignation does not relieve a member from liability for any fees, contributions, levies or fines which may become payable during the notice period.”

30      S.64A and s.64B of the Act provide for termination of membership by resignation by the member and for termination of membership for non payment of subscription.  S.64D provides for the purging of the register of members of an organisation where membership has ended in accordance with s.64A or s.64B.

31      I would also add that in Troja v Australasian Meat Industry Employees’ Union (Victorian Branch) (1978-1979) 23 ALR 18 (FC-FC), the court accepted the principle that the rules of the organisation in question in relation to termination of membership had to be complied with to effectively terminate membership.  This principle was accepted by Sweeney J in Re an application by Sims (1980) Current Review 576.  In Cook v Crawford (1982) 62 FLR 34 at 79-81 (FC-FC) one member of the Full Court of the Federal Court, Keely J, expressly rejected an argument that members of the organisation in question could be treated as having resigned as a result of conduct such as failing for a period to pay dues to the organisation where they had not resigned in accordance with the rules of the organisation (see the discussion of these matters by Moore DP in Re Australian Federation of Principals Employed in Catholic Schools [1991] 43 IR 378 at 382-383 (AIRC)).

32      The rules provide also, I observe incidentally, for candidates for election to any office to be financial members of the union continuously for one year immediately preceding the next closing date for nominations (see rule 23).

33      The evidence in this matter, which I accept, leads me to find that for at least 14 or 15 years Mr McParland was an employee, but not continuously, employed in the building and construction industry as a builders’ labourer or in plastering or in refractory work.  He was also during that time engaged as an employee or an officer of industrial organisations, and most recently as an officer of the respondent until about four years ago.  It was not submitted to me that an officer is not an employee of the respondent within the meaning of s.7 of the Act.  For four years or thereabouts he has been unemployed and in receipt of unemployment benefits and the “Newstart” benefit.  I am so satisfied and find, on his own evidence.

34      Since he has not been in employment for about four years he relied on the fact that for many years he was usually an employee or usually employed in an industry as prescribed by rule 4.

35      Further, of course, and significantly, if a person is not an employee within the meaning of s.7 of the Act and rule 4, then he is prohibited from membership.  The last paragraph of rule 4 reads as follows:-

“The Union may admit to membership all other persons whether employees in the foregoing callings or vocations or not as have been appointed or elected officers of the Union, provided that no person shall be a member who is not an employee within the meaning of the Industrial Relations Act (WA) 1979 as amended”.

36      In order to be eligible, he would have to be a person whose “usual status is that of an employee” within the meaning of the definition to which I have referred above in s.7 of the Act.  (I was cited no authorities about the meaning of that phrase).

37      If he does not meet that requirement, he is simply not eligible for membership.  The question is whether his usual status is that of an employee.  It is quite clear that the word “usual” has been defined in a number of cases, but there is not a relevant definition for my purposes.  The word “usual” means, in its most relevant definition, “habitual or customary” (see The Macquarie Dictionary 3rd Edition).  In the same dictionary the word “status” is defined to mean “condition, position or standing, socially, professionally or otherwise”.

38      The crucial facts, as I find them, are these.  For three to four years approximately, up to the date of the hearing, and including the date when Mr McParland’s attempt to pay his six month subscription in advance was rejected, namely 28 March 2002, Mr McParland was not employed at all as an officer of the respondent which would have otherwise rendered him eligible for membership; nor was he employed at all in any of the vocations, callings, occupations, activities or capacities referred to in rule 4, which, if he were so employed, would have rendered him eligible for membership.  I make those observations subject to the length or otherwise of the period during which he might have been so employed and the times when he was so employed, which facts would be very material.

39      During those four years he was in receipt of unemployment benefits for some of the time, and for the rest of the time has been and is presently in receipt of the “Newstart” benefit.  There is no evidence that for those three to four years he has been employed at all, that is employed by an employer pursuant to a contract of service.  It is therefore clear that he has neither been employed or usually employed in any occupation, calling, endeavour or capacity which would render him eligible for membership of the respondent for three to four years pursuant to rule 4.  If he had been employed during that that time even with some interruptions to that employment he might, depending on the actual facts, be said to have been “usually employed”, but he was not.  If he was an officer of the respondent during that time, he might also have been eligible, but he was not an officer during that time, provided that an officer could be said to be an employee.  Again, whether he was eligible for membership would depend on the periods during which he was an officer and the length of his service as an officer, but he was not an officer during the last four years.  He was therefore, at least as early as 28 March 2002, and, indeed, earlier than that, ineligible for membership for those reasons.  I so find.

40      If that were a wrong finding, which it is not, it is quite clear that he was not an “employee” during that period of approximately four years within the definition contained in the Act.  There is no evidence that he was ever a person employed by an employer to do work for hire or reward, even as a trainee within the meaning of definition (a) of an employee in s.7 of the Act.  He clearly did not come within the definitions (c) and (d) of the definition of employee in the Act, on the evidence.

41      The only question then is whether he was an employee as defined because his “usual status (was) that of an employee” within definition (b) of s.7 of the Act.  It is clear to me that his usual status was not that of an employee during the same period of four years or thereabouts because he has not been in employment for about four years.  That is too long a period to enable me to conclude that his customary or habitual ((ie) usual status) was that of an employee.  In fact, he was a person during that time in receipt of unemployment benefits and of another benefit which apparently exists to enable persons to more readily find employment.  He did not obtain employment during that time, even during the time when he had a ticket.

42      I would also add that the fact that he cannot get a ticket or might be ineligible to stand for office within the respondent, however unfortunate those consequences undoubtedly are, is and cannot be relevant to my determination of this matter, which depends on the application of the rules and the Act to the facts.

43      What I have to decide is whether upon the application of the facts to the proper construction of the rules Mr McParland has established that there is a breach of the rules.  Therefore, as I find, since he was not an employee as defined in the Act, he was not eligible, at least as at 28 March 2002, for membership of the respondent.

44      It was not part of Mr McParland’s case that whatever the reason the act of terminating or forcing the termination of his membership or the result achieved was not authorised by the rules, having regard to Troja v Australasian Meat Industry Employees’ Union (Victorian Branch) (FC-FC) (op cit) and the other authorities to which I have referred above.  An argument might be available on that point, and I make no judgment on it at this time.  However, none of the authorities which I cite above relate to the situation such as this where the applicant was not an employee at the material time and where an organisation of employees cannot by definition contain persons who are not “employees” as defined.

45      I turn briefly to the allegation of unfairness or lack of impartiality in the decision made on 28 March 2002.  There may have been unfairness in the procedure adopted, but, in the end, it cannot be said that it affected or tainted the result (see Stead v State Government Insurance Commission [1986] 161 CLR 141 (HC)).  That ground is not therefore made out.

46      For the reasons which I have expressed above, Mr McParland was and is ineligible for membership of the respondent.  For all of those reasons, I will dismiss the application.

       Order accordingly