Opinion Number. 1925

Subject

IMPLIED REPEAL BY LATER ACTWHETHER CONCILIATION AND ARBITRATION ACT 1904 REPEALED TRADE UNION ACT 1876 (SA) IN ITS APPLICATION TO NORTHERN TERRITORY AND TRADE UNION ORDINANCE 1922: WHETHER TRADE UNION ACT 1876 (SA) IN ITS APPLICATION TO NORTHERN TERRITORY AND TRADE UNION ORDINANCE 1922 SHOULD BE REPEALED

Author
Key Legislation

COMMONWEALTH CONCILIATION AND ARBITRATION ACT 1904 ss 66–96: NORTHERN TERRITORY (ADMINISTRATION) ACT 1910: TRADE UNION ACT 1876 (SA) ss 2, 3, 6–12: TRADE UNION ORDINANCE 1922

Date
Client
The Director of the Northern Territory Affairs, Department of Interior

I refer to your memorandum of 23rd November 1950, in which you ask my advice as to whether the Trade Union Act 1876 (South Australia) in its application to the Territory, as modified and added to by the Trade Union Ordinance 1922, has been superseded by the Commonwealth Conciliation and Arbitration Act 1904–1947, which applies to the Territory by virtue of section 6 of the Northern Territory (Administration) Act 1910–1947.

(2)  In my opinion, the Act of 1876 and the Ordinance of 1922 have not been impliedly repealed by the Commonwealth Conciliation and Arbitration Act. Consequently, the question of whether the Ordinance should be repealed is a question of policy on which I shall offer some comment, as points of legal policy are involved.

(3)  At common law, a trade union was an unlawful association because its rules and objects were considered to be in restraint of trade. As a consequence, it had virtually no resort to the courts to preserve or recover its property or funds. Nor could its members enforce their rights under the Rules of the Union providing for the relief of sick, disabled and aged members, if the objects of the union provided, for example, for the support of its members on strike.

(4)  In England, a Royal Commission in 1867 inquired into trade unions generally, and the outcome of its report was the Trade Union Act 1871. The South Australian Act of 1876 substantially follows the provisions of the English Act and the basic principles thus established are:

1.  The purposes of a trade union are not, by reason only of being in restraint of trade, unlawful so as to render agreements void or to expose members to criminal prosecution for conspiracy (Sections 2 and 3);

2.  Trade unions may be registered under the Act (section 6);

3.  A registered union may hold property which is vested in Trustees (sections 7 and 8);

4.  A registered union may sue and be sued in the name of its trustees (section 9);

5.  Trustees so sued are liable only to the extent of the union property in their hands (section 10);

6.  Treasurers and other officers must account for Union moneys coming into their hands (sections 11 and 12).

(5)  The legislation also makes extensive provision for what may be termed the control or regulation of registered trade unions, i.e. rules, fees, registered office, annual returns of receipts and expenditure, officers, etc. The Trade Union Ordinance of 1922 adds further provisions to this regulatory portion of the 1876 Act.

(6)  The Act is broadly an enabling Act which for all purposes gives to trade unions certain rights which did not formerly exist and renders lawful what would formerly have been unlawful.

(7)  By comparison, the provisions of the Commonwealth Conciliation and Arbitration Act are very limited. The Act deals with the prevention and settlement of industrial disputes by the methods of conciliation and arbitration. These methods necessarily require parties to a dispute, and sections 66 to 96 of the Act provide for industrial organizations as incidental to the practical problem which would otherwise arise if all individual employees and employers had to be cited as parties to the dispute.

(8)  Those sections provide for the registration of organisations of employers and employees whose rules comply with prescribed conditions. A registered organisation becomes a body corporate, but only for the purposes of the Act. It may sue and be sued by its corporate name but, again, only for the purposes of the Act, and it may sue individual members for fines, fees, levies or dues payable under its rules.

(9)  The Commonwealth Conciliation and Arbitration Act contains extensive regulatory provisions relating to registered organizations. For example, change of name and alteration of rules require registration; the Court may disallow rules, direct the performance of rules and determine disputes between the organization and its members; records of members and receipts and expenditure must be kept and filed annually with the Court.

(10)  Now a later Act does not repeal by implication an earlier Act unless the provisions of the later Act are so inconsistent with, or repugnant to, those of an earlier Act that the two cannot stand together. When the substantive provisions of the Trade Unions Act (see para. 5 of this memorandum) and of the Commonwealth Conciliation and Arbitration Act (see para. 8) are compared, no sufficient inconsistency or repugnancy exists. The former Act is directed to defining rights and obligations for all legal purposes, while the latter deals only with the special statutory rights and obligations which it creates.

(11)  Consequently, the Trade Union Act 1876 in its application to the Territory and the Trade Union Ordinance 1922 have not been repealed by the Commonwealth Conciliation and Arbitration Act.

(12)  The question then arises whether those two measures should be repealed. I would advise against any such repeal. Failure to register under the Trade Union Act exposes members of a union to the consequences mentioned in para 3 above, and the grave risk of criminal liability for direct forms of industrial action. Although no actions of that type appear to have come before Australian courts for many years, such issues have been to the forefront in the United Kingdom recently. The absence of such actions in Australia may explain the paucity of unions registered under the Trade Union Act in the Northern Territory.

(13)  From the administrative point of view, there is room for objection to the duplication of the regulatory provisions in each piece of legislation e.g. a balance sheet must be filed under each Act. But there are several ways in which this undesirable duplication can be overcome. These methods together with my comments are:

1.  Repeal the regulatory provisions of the Trade Union Act and Ordinances.

Comment: Difficulty would arise in the event (probably unlikely) that a union would wish to be registered under the Trade Union Act and not under the Commonwealth Conciliation and Arbitration Act. I assume of course that there are no regulatory provisions of the Trade Union Act which it is desired to retain because they are preferred to the regulatory provisions of the Commonwealth Conciliation and Arbitration Act.

2.  Provide in the Trade Union Ordinance that registration under the Commonwealth Conciliation and Arbitration Act exempts a union registered under the Trade Union Act from the need to comply with the regulatory provisions of the trade union legislation.

Comment: The assumption mentioned in comment 1. applies equally to this method.

3.  Repeal the regulatory provisions of the trade union legislation and insert a provision in the Trade Union Ordinance that a union registered under the Commonwealth Conciliation and Arbitration Act is deemed to be registered under the trade union legislation.

Comment: The assumption mentioned in comment 1. applies equally to this method.

It extends the protection given by the trade union legislation to all unions registered under the Commonwealth Conciliation and Arbitration Act even though they have not applied for registration under the trade union legislation.

As in method 1., there would be no regulatory provisions applicable to a union which desired to be registered under the trade union legislation but not under the Commonwealth Conciliation and Arbitration Act.

(14)  If there is any other assistance you require I will be pleased to make an officer available for discussion.

[Vol. 39, p. 442]