Re Neil Raymond Morris; Ronald Green and James Donald Gray v Building Workers Industrial Union of Australia [1991] FCA 229; (1991) 37 IR 196 (31 May 1991)

FEDERAL COURT OF AUSTRALIA

Re: NEIL RAYMOND MORRIS; RONALD GREEN and JAMES DONALD GRAY
And: BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA
Nos. V I34 of 1990, V I7 and 10 of 1991
FED No. 300
Industrial Law
[1991] FCA 229; (1991) 37 IR 196

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - rules - preformance and observance - applicants appointed as field advisers by State Conference - whether officers - applicants subsequently retrenched by State Management Committee - whether State Management Committee empowered to retrench field advisers appointed by State Conference - whether decision to retrench made bona fide - whether decision delegable - whether disunity in the branch a legitimate consideration in deciding which staff to retrench.

Words and Phrases - "officer".

Building Industry Act 1985.

Industrial Relations Act 1988 ss. 4, 195, 209, 258.

Conciliation and Arbitration Act 1904 ss. 132, 133.

HEARING

MELBOURNE
31:5:1991

Counsel for the applicants: Mr P. Harris

Solicitors for the applicants: Gill, Kane and Brophy

Counsel for the respondents: Mr K. Bell, until 12th

April, then Mr S. Marshall

Solicitors for the respondents: Holding Redlich

ORDER

The Court orders that the rule to show cause is discharged.

Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

DECISION

On 6th August 1990, the state management committee ("the SMC") of the Victorian branch ("the branch") of the Building Workers Industrial Union of Australia ("the Union") resolved to dismiss from their employment ten persons employed by the Union and working in the branch. Among those ten persons were Neil Raymond Morris, Ronald Green and James Donald Gray. On 3rd December 1990, a rule to show cause was granted to those three as applicants, in matter No. VI 34 of 1990. The respondents to that rule to show cause were all of the members of the SMC. The order sought was pursuant to s.209 of the Industrial Relations Act 1988 ("the Act"), that the respondents perform and observe the rules of the branch by treating as null and void and of no force or effect the resolution of 6th August 1990, under which the applicants were dismissed.

2. By application filed on 20th February 1991, in matter no. VI 7 of 1991, Vincent John Raffa sought a declaration under s.258 of the Act as to the validity of the resolution of 6th August 1990, and consequential orders if the resolution were found to be invalid. In the course of the trial, counsel who appeared for Mr Raffa indicated that this application was no longer pursued. It will therefore be dismissed.

3. On 27th February 1991, Mr Morris, Mr Green and Mr Gray filed a further application which became matter No. VI 10 of 1991, in which the Union, which is an organisation registered pursuant to the Act, is named as respondent. In that application, they claimed damages for wrongful dismissal. In the defence, filed on behalf of the Union, the point was pleaded that the claim was not within the jurisdiction of the court. No argument was addressed to this question.

4. All three proceedings were listed for trial on 21st March 1991, on which day an order was made by consent of all parties except the respondent J. Saddington, who did not appear other than as a witness, that the three proceedings be consolidated. For the purposes of these reasons for judgment, it is convenient to call Messrs. Morris, Green and Gray collectively "the applicants" and the Union and the members of the SMC "the respondents". Mr Harris of counsel appeared for the applicants. Mr Bell of counsel appeared for the respondents until the end of the eighth day of the trial, after which he was succeeded by Mr Marshall of counsel.

5. The applicants challenged on two bases the power of the SMC to dismiss them. They contended that they were "officers", protected by the rules from dismissal unless found guilty, by processes laid down in the rules of one or more specified offences. If this were not the case, the applicants contended that they were appointed to their respective positions by resolution of the state conference of the branch in May 1990, and could not be dismissed by the SMC, which was a decision-making body subordinate to the state conference. The respondents disputed the claim that the applicants were officers, and claimed that the SMC had acted under a specific power in the rules. If this were held to be the case, the applicants sought to show that the SMC did not exercise its power on 6th August bona fide and for the purpose for which the power was given by the rules, but exercised it for an ulterior, collateral or improper purpose, to dismiss the applicants. In the interlocutory stages of the proceedings, the respondents also sought to rely upon a special state conference resolution, alleged to have been passed in February 1991, ratifying the decision of the SMC of 6th August 1990. The raising of this issue led to the applicants challenging the validity of the special state conference meeting on a number of grounds. On the ninth day of the trial, Mr Marshall informed the court that the respondents no longer intended to pursue the defence based on the special state conference meeting. This concession rendered it unnecessary to make any findings about that meeting.

6. The applicants' claim for wrongful dismissal was put on the pleadings in several ways. It was alleged that Mr Morris and Mr Green were induced not to stand for election in the branch elections in 1987, on the basis that they would be retained in employment until the 1991 elections. It was alleged that Mr Gray was told when he was engaged in May 1988 that he would be employed until the 1991 elections. Alternatively, it was alleged that the applicants could not be dismissed without reasonable notice. In his final address, counsel for the applicant abandoned the claims of Mr Morris and Mr Green based on promises of employment until the 1991 elections. This was no doubt because of the difficulty of establishing that those promises, if made, were made on behalf of the Union, and not merely in the personal capacity of persons who hoped to attain and hold office until that time. In the end, the applicants put the proposition that Mr Morris and Mr Green were engaged by the state conference in May 1990 for a fixed term until the next regular state conference in May 1991 and that Mr Gray was engaged until the 1991 elections. In the alternative, they contended that all three could only be dismissed on three or six months' notice, which was more than they were given.

7. In view of the length and complexity of the proceedings, it is convenient to discuss the various issues arising under separate headings.
THE ORDER OF EVENTS.

8. Following the statutory deregulation of the Australian Building and Construction Employees and Builders' Labourers Federation ("the BLF"), effected by the Building Industry Act 1985 and subsequent legislation, a number of persons who had been members of the BLF became members of the Union. This influx of members imposed strains on the resources of the branch, and caused it to need more personnel to provide service to the increased membership. Rule 23(3)(e) gave to the SMC power to appoint field advisers, "to advise members on specific matters as directed by the S.M.C." The power of appointment was limited to periods of three months, with a proviso that the maximum period should not exceed twelve months. The rule then provided, "Further appointment may only be by decision of the Annual State Conference." In or about August 1986, Mr Green was appointed as a field adviser by the SMC for an initial term of three months. In or about September 1986, a similar appointment of Mr Morris was effected. Each of those applicants was reappointed as a field adviser by the state conference in or about May 1987, and at successive annual meetings of the state conference in or about May 1988, May 1989 and May 1990.

9. Branch elections were held in 1987. The incumbent secretary of the branch, Ray Collins, did not seek re-election to that position. He stood for and was elected to the position of vice-president. Don Henderson was elected as secretary, John Saddington and Vince Raffa as assistant secretaries and Les Appelbee as president.

10. In about May of 1988, Mr Gray applied for a job with the branch. He was interviewed by Mr Henderson and Mr Raffa. There was a conflict of evidence as to the manner in which the job was advertised. I find in accordance with the evidence of Mr Henderson that an advertisement was placed for a single position of publicity/industrial officer. Mr Gray was interviewed by Mr Henderson, Mr Saddington, Mr Raffa and Randell Fuller, an industrial officer of the Union who worked in the branch office. Mr Gray was regarded as eminently suitable to be a publicity officer; another interviewee was regarded as eminently suitable to be an industrial officer. The interviewers decided to offer jobs to both, and seek to persuade the SMC to engage both for their respective positions. The SMC agreed to this. Mr Gray was told that he would be engaged on the same terms as a field adviser. No specific mention was made of him in the resolutions regarding the reappointment of field advisers, which were passed at the annual state conferences, including that of May 1990. Those resolutions did not mention any field adviser by name.

11. During 1989, it became apparent to Mr Henderson as branch secretary that the branch was in serious difficulties. In part, these difficulties concerned finances. For some years, the branch had occupied premises at 1 Lygon Street, Carlton South, being the former Dover Hotel, which had been purchased out of branch funds. The building was subject to some restrictions as to renovations and alterations, because of its historic nature. When extra staff were taken on to cater for the influx of new members from the BLF, the building proved inadequate to house the branch administration. The Union was proposing an amalgamation with the Federated Engine Drivers and Firemens' Association ("the F.E.D.F.A."), another organisation registered pursuant to the Act. In the hope and belief that the amalgamation would be successful, and desiring to make provision for the administration of the resulting organisation in Victoria, the branch committed the Union to the construction of a new building. This was situated at 500 Swanston Street. Some three million dollars were borrowed for the construction of the building, on the basis that interest only would be paid, at least in the first few years. In a ballot of F.E.D.F.A. members on the question of amalgamation, the proposal was defeated. The branch was then left to occupy 500 Swanston Street, to let parts of it as best it could, and to service the loan out of its own funds.

12. Another item of expenditure which was criticised in evidence involved the purchase of a motel at Airey's Inlet, with a view to providing holidays for members at discount prices. The financial troubles of the branch also arose in part from the costs of extensive litigation with a firm named Troubleshooters, with which the Union was involved in a dispute over the use of contract labour.

13. In part, the difficulties facing the branch arose from a lack of unity amongst its officials.

14. By about October 1989, Mr Henderson perceived the branch's problems as being so great that he sought assistance from the national executive of the Union with respect to them. After discussions at the national level, the national executive seconded Bill Ethell to work with the branch. Mr Ethell was the national president of the Union and also the secretary of its Western Australian branch. In and after October 1989, Mr Ethell spent a considerable amount of his time working in the branch office. He perceived his role as involving talking with as many people in the administration of the branch as he could, to see if he could ascertain the causes of the problems facing the branch, and endeavour to rectify them.

15. One of the results of Mr Ethell's involvement in the branch was the establishment of a body known as the coordinating committee. The model for the coordinating committee came from the New South Wales branch. Organisers and field advisers working in a particular area chose from among their number a person to represent them on the coordinating committee. There were, therefore, several coordinators. The secretary and the two assistant secretaries were members of the committee as were Mr Fuller and Martin Kingham as a representative of the branch's occupational health and safety unit. It was generally chaired by Mr Ethell. Its structure was somewhat loose, to the extent that, if a matter involving the concerns of a particular organiser or field adviser was being discussed, that person was generally present. The coordinating committee was proposed by a meeting of the national executive held in Melbourne on and between 31st October and 2nd November 1989, after consultation with various officials of the branch. It was given formal status by a resolution of the SMC on 8th November 1989. In its initial stages, it was seen as a means of improving communication within the branch. Information was disseminated through the coordinators who attended the meetings to the organisers and field advisers in the various regions, and from those organisers and field advisers through their coordinators to the executive officers of the branch. The committee met weekly. Being composed of full time officials, it was able to spend time debating issues. Mr Ethell saw this as one of its important roles. The SMC met less frequently and its meetings were subject to time limits. Mr Ethell hoped that thorough discussion in the coordinating committee would involve the making of recommendations to the SMC which reflected the consensus of the coordinating committee and which would be more likely to be adopted by the SMC without lengthy debate. As the coordinating committee continued to operate, it made substantial numbers of recommendations to the SMC. These were generally supported by the members of the coordinating committee who were members of the SMC. The coordinating committee also made a number of decisions in the day to day operation of the branch. These were decisions of the kind that the secretary, or one of the assistant secretaries, might have made on his own, before the coordinating committee existed. Indeed, Mr Ethell saw as one of the strengths of the coordinating committee that it broadened the range of input into day to day decisions.

16. The applicants endeavoured to show that the coordinating committee had superseded meetings of organisers and field advisers, which had been held previously. In fact, those meetings continued to be held from time to time. They were less frequent, because organisers met with their coordinators in small groups and conveyed their views and received information to and from the coordinating committee. The coordinating committee was really a new element in the branch.

17. For some years prior to the secondment of Mr Ethell to work in the branch, the Union had maintained in the branch office a national industrial officer. At the time of the events under consideration, that position was filled by Mr Fuller. The theory behind this position was that a good deal of important work from the point of view of the Union as a whole was transacted in Victoria. In particular, much of the work which needed to be done in servicing awards was done in the Australian Industrial Relations Commission in Melbourne, and the head office of the Australian Council of Trade Unions was also in Melbourne. Instead of an official of the Union flying to Melbourne from Sydney, where the national office of the Union is situated, this work could be done by someone based in Melbourne.

18. Another presence from the national office was that of Sally Spalding. She was paid by the Union to provide support for Mr Ethell. She had some experience as a journalist. She spent a considerable amount of time in the branch office after Mr Ethell had come to Melbourne.

19. The presence of Mr Ethell and Ms Spalding, in addition to Mr Fuller, and the establishment of the coordinating committee, led some people within the branch, including the applicants, to regard the affairs of the branch as being directed by the national office. The term "national office takeover" was used widely to describe this state of affairs. Frank O'Grady, the current branch president, admitted that the term was used, but said it was as a joke, rather than a reflection of the views of people who used it. I am satisfied that a number of people, including the applicants, genuinely believed that Mr Ethell was using the coordinating committee to assert the will of the national office on the branch. In fact, Mr Ethell agreed to take on the onerous role which he performed, because he saw the likelihood of a real national office takeover of the branch if he did not do so. Although they were not in evidence, the rules of the Union apparently made provision for the national executive to dismantle the structure of a branch, and to run it pending new elections. References were made in evidence to a takeover by the BLF of its New South Wales branch during the 1970's. Mr Ethell did not regard such a takeover as beneficial to the Union, and endeavoured to perform the role of problem solver.

20. Mr Ethell regarded a number of the problems of the branch as being due to the leadership style of Mr Henderson. He characterised Mr Henderson as being unable to delegate, and as exhibiting a tendency to become involved in every issue that arose. In the course of time, Mr Ethell, and no doubt others at the national executive level, came to the view that Mr Henderson ought to be replaced as secretary.

21. In the course of 1990, clear factions began to emerge within the branch. There was much conflict of evidence about the date when their emergence became apparent. Indeed, at one point, the applicants were endeavouring to show that factions had existed prior to the 1987 elections. Having regard to the variety of evidence given about factions in the branch, it is difficult to be definitive. Some officials supported the national office and the presence of Mr Ethell. They were described by the applicants as the "national office faction". Another group were described as the "Raffa-O'Grady" faction. These were people who supported Mr Raffa to become secretary of the branch and Mr O'Grady to become president. Mr O'Grady had been engaged as an occupational health and safety officer, his salary being paid out of the Victorian government grant for that purpose. At some time in 1990, that grant ceased. There was also a "Henderson" faction, to which the applicants and Mr Saddington were regarded as belonging.

22. It should not be supposed that these factions were sharply defined, or that every official could be regarded as belonging to a faction. There was abundant evidence that allegiances would shift over different issues. At some time, fixed by Mr Henderson as being just before the May 1990 State Conference, the national office faction and the Raffa-O'Grady faction merged, or at least collaborated; there is no doubt that Mr Ethell and the national executive supported Mr Raffa's bid to become secretary of the branch. There was evidence that Martin Bingham, an elected organiser, was a faction in his own right, perhaps with the support of one or two others. Despite these difficulties of definition, I am satisfied that factions existed in the branch by mid 1990.

23. On 2nd May 1990, Mr Henderson made a crucial report to the coordinating committee on the financial state of the branch. In substance, he indicated that the branch had considerable assets, but severe cash flow problems. The bulk of the income of the branch was from members' contributions. Otherwise, it received a small amount of rent from 1 Lygon Street, which was not fully let, owing to its unsuitability for letting. Mr Henderson reported that the branch would be unlikely to be able to meet all its expenses from its income in the near future. Already, there were signs of a downturn in the building trade in Victoria. Mr Henderson spoke of the possible need to retrench some full time officials. He was asked to give a report to a meeting of organisers and field advisers.

24. That meeting was held on 14th May 1990. Mr Henderson gave a report. There was a suggestion that this report differed from the one he had given to the coordinating committee on 2nd May, but I find that it was substantially the same. After the report, there was a motion that the executive leave the meeting, to enable the other officials to discuss the question of finances. This motion was not put to the vote, but Mr Henderson, Mr Saddington and Mr Raffa all left the meeting. Thereafter, there was discussion of the finances. People at the meeting, including Mr O'Grady, expressed the view that the precise financial situation of the branch was not clear. In the result, the meeting recommended that Mr O'Grady and Bill Oliver, a field adviser, be appointed to investigate the financial situation. The SMC acted on this recommendation and so appointed them.

25. Shortly thereafter, the question of Mr Henderson's position came to a head. Mr Henderson agreed that he would leave the position of secretary and go to work in the national office. On 23rd May, the SMC granted Mr Henderson leave of absence to work in the national office and appointed Mr Raffa as acting secretary and Mr Bingham as acting assistant secretary, in Mr Raffa's place. The SMC also noted Mr Appelbee's intention to resign as president from 26th May and appointed Mr O'Grady to be president to fill that casual vacancy. Mr O'Grady thereby became a member of the SMC. He also became a member of the coordinating committee. The presidency of the branch became a full time salaried position after the cessation of the grant which had supported Mr O'Grady.

26. It was at the annual state conference on 26th May 1990 that a resolution was carried, reappointing all field advisers for twelve months until the next annual state conference.

27. In May 1990, a meeting of the coordinating committee discussed who might be retrenched among organisers and field advisers. Three lists were drawn up on a white board, representing those who were regarded as indispensable, those who should be retained if possible, and those whom the branch could do without. Mr Morris and Mr Green were on the second list. Shortly after that meeting organisers and field advisers were told that some of them would be likely to be retrenched for financial reasons.

28. On 9th July 1990, Mr O'Grady and Mr Oliver reported to the SMC on the finances of the branch. The report indicated that the branch was in serious financial difficulty. Ernie Boatswain, a national assistant secretary of the Union, in charge of the Union's finances, expressed to the SMC his agreement with this assessment and recommended the establishment of a finance committee. The SMC established such a committee and resolved to commence an immediate drive to increase the financial membership of the branch. The resulting drive does not appear to have been very intense, or very long.

29. On 23rd July 1990, Mr O'Grady presented a report of the finance committee to the SMC. The report predicted a deficit of almost half a million dollars by the end of August 1990. It recommended the retrenchment of twelve staff, of whom ten were to be from the organising area and two from the area described as specialist officers. The SMC instructed the coordinating committee to make a recommendation as to who should be retrenched.

30. On 25th July, Mr Raffa and Mr O'Grady sent a notice to organisers, field advisers and industrial staff advising of a proposed time table for the making of decisions on retrenchments. That time table was adopted by the coordinating committee the next day and was subsequently followed. The coordinating committee also decided to investigate the entitlements of retrenched persons and resolved to find employment for them.

31. On 1st August 1990, a meeting of organisers and field advisers was told of the SMC decision of 23rd July to retrench staff. A call was made for volunteers. This did not result in any serious offers of willingness to be retrenched. It was suggested for the applicants that this was in part because the possible terms of retrenchment were not made known at that time.

32. On 2nd August 1990, the coordinating committee met to decide who should be retrenched. A more detailed description of this meeting will be given later in these reasons for judgment. The end result was a unanimous recommendation of the coordinating committee to the SMC to retrench eight named field advisers, including Mr Morris and Mr Green, as well as Mr Gray and one other specialist officer.

33. On the following day, Mr Raffa and Mr Saddington advised the applicants individually that they would be the subject of a recommendation for retrenchment for financial reasons and offered them help with finding employment in the building industry.

34. On 6th August 1990, the SMC met and received the coordinating committee's recommendations. It accepted them unanimously and resolved to retrench the ten persons named.

35. The decision was reported to a meeting of organisers and field advisers on 8th August. The offer to assist in finding employment in the industry was repeated.

36. In the meantime, on 3rd August 1990, judgment was delivered in a proceeding in this Court, brought by a member of the branch by the name of Pillar. The purpose of that proceeding was to establish that it was not open to the branch, under its rules, to dispense with the services of Mr Henderson as secretary in the way in which that had been effected on 23rd May. Keely J. upheld Mr Pillar's claim, and ordered the members of the SMC to treat Mr Henderson as the secretary of the branch. Mr Henderson then took some leave, which was owing to him. On 15th August, he gave one month's notice of his intention to resign as branch secretary, in accordance with the rules. He did so largely as a result of pressure from members of the national executive, to avoid the possible consequence of national intervention into the branch. The SMC appointed Mr Raffa to replace him with effect from 15th September 1990.

37. In September 1990, the SMC dissolved the coordinating committee and replaced it with an executive committee, which was larger than that which had existed before the coordinating committee. In December 1990, Mr Ethell ceased to be based in the branch office.
THE APPLICANTS' CLAIM TO BE "OFFICERS".

38. The applicants claim to be entitled to rely on the provisions of rule 29A of the branch rules. In fact, the certified copies of the rules of the branch which were tendered in evidence contained no rule designated as 29A. Instead, there were two successive rules, both numbered "29". For convenience, however, the second of these rules was referred to as rule 29A. The rule provided as follows:

"29 - REMOVAL OF OFFICERS
(1) Any officer may be removed from or
suspended from office by a majority
decision of the S.M.C. provided that
such officer shall not be dismissed
or suspended from office unless been
found (sic.) guilty in accordance
with the rules of the union of
misappropriation of funds of the
union or a substantial breach of the
rules of the union or gross
misbehaviour or gross neglect of
duty or has ceased, according to the
rules of the union, to be eligible
to hold office.
(2) Subject to Rule 19(17) should any
officer be removed or suspended from
office the S.M.C. shall appoint a
member to fill the vacancy until the
next elections are held in
accordance with these rules.
(3) Any officer so removed or suspended
from office shall have the right of
appeal to the Branch Conference.
The S.M.C. shall arrange for any
such appeal to be placed before
Branch Conference Delegates either
at a meeting of Branch Conference or
by referring the appeal by post. In
the event of the appeal being upheld
Branch Conference may order
reinstatement to apply on such
conditions as it considers the
circumstances warrant."

39. It is plain that the applicants were not charged with any of the offences referred to in sub-rule (1); nor was there any suggestion made that they had ceased to be eligible to hold any office. On 14th September 1990, Mr Morris and Mr Green wrote to the S.M.C., seeking to appeal to the state conference. On 5th October 1990, Mr Gray wrote a similar letter. These purported appeals have not been dealt with by any state conference.

40. Rule 29A was undoubtedly inserted into the branch rules to comply with the provision now found in s.195(1)(c) of the Act or its predecessor, which was in s.133(1)(f) of the Conciliation and Arbitration Act 1904. The statutory provisions protect "a person elected to an office" from dismissal or removal from that office, unless the person is found guilty of one of the offences referred to, or has ceased to be eligible to hold the office. There is, in s.4(1) of the Act, a definition of "office", which differs from the equivalent definition in the former Act. It is open to an organisation, in framing its rules, to extend the protection given by a rule such as rule 29A beyond the persons who would fall within the relevant definition of "office". It is open to an organisation to adopt a rule giving to persons who have not been elected at all protection similar to that required for persons elected to an office. The question arises in the present case whether the rules of the branch do so extend that protection, and whether they extend it to persons appointed to positions such as those held by the applicants. These questions are to be answered by determining the meaning of the word "officer" in rule 29A.

41. Rule 19(1) of the branch rules provides as follows:

"(1) The Officers of the Branch shall
consist of Branch President, Branch
Vice President, Branch Secretary,
Two Assistant Branch Secretaries,
the members of the State Management
Committee, Branch Delegates to
National Conference and Organisers of
such number as may be decided by the SMC."

In the face of a provision such as this, it would be difficult to contend that the holder of any position other than those listed would fall within the meaning of the word "officer" elsewhere in the rules. Rule 29(1) provides that those elected to the positions of state secretary, assistant state secretary or state organisers are to be employed full time in the service of the Union. The rule contains many provisions as to the conditions under which "fulltime paid officers", "fulltime officers" or (in sub-rule (9)) "full-time officials" are to be employed. There is a series of rules prescribing the duties which the holders of various positions are to perform; these are rule 24 (the branch president), rule 25 (the vice-president), rule 26 (the state branch secretary), rule 27 (the assistant state secretary) and rule 28 (state organisers). Among the specific powers of the SMC, found in rule 23, are the power to fix the salaries of officers (para. (a)), to appoint field advisers (para. (e)) and to "exercise control through the Secretary of all paid officials and staff" (para. (h)). Rule 23(5) defines who shall be "eligible for election to any office of the Branch". Rule 23(12) contains disciplinary powers which extend to removal from office of any officer, but which plainly do not comply with s.195(1)(c) of the Act.

42. The provisions of the rules to which I have referred do nothing to detract from the proposition that the word "officer" in rule 29A is intended to include only those specified as officers in rule 19(1). The only provision which might be thought to cast doubt on this is rule 23(2). That rule provides for the structure of the SMC. The SMC is composed of the branch president, branch vice-president, branch secretary, two assistant branch secretaries and sixteen other SMC members, in various categories of membership. The rule contains a proviso "that among the sixteen (16) SMC members there shall be 12 non full-time Branch officers and not more than a total of four (4) Branch Organisers or Field Advisors (sic.)." On first reading, the proviso might be taken to recognise that field advisers would be included amongst full time branch officers. It is not necessary to read the proviso as creating only a dichotomy. It is perfectly possible to read it as including twelve full time branch officers and excluding both branch organisers and field advisers, except that the total of those two categories may be as many as four. On this reading, the proviso is consistent with the provisions of the rules to which I have referred, and also with the provisions of rules 21(4) and 23(3)(d), under which the state conference and the SMC respectively may determine the number of organisers to be elected under rule 19. The plain intention of rule 29A is that the officers dealt with in that rule should be the officers referred to in rule 19(1). Organisers are included in that category, but field advisers are not. Nor was Mr Gray, by his title of publicity officer, given the status of an officer for the purpose of rule 29A.

43. Counsel for the applicants referred to several cases in which persons exercising significant administrative responsibilities within registered organisations have been held to be officers of those organisations. In Landeryou v. Taylor (1969) 15 FLR 147, the question was whether a person employed by a registered organisation as a dues collector was a member of the organisation. The rule containing the conditions of eligibility for membership included persons who had "been appointed officers". The majority of the Commonwealth Industrial Court held that, because the dues collector occupied a position which carried with it some administrative or executive duties or some substantial degree of responsibility, he was eligible to be a member. That case was followed in Ransley v. Australian Public Service Association (Fourth Division Officers) (1985) 12 IR 55, at pp 65-66. A question which arose was whether two organisers employed by an organisation were "officers", for the purposes of s.132 of the Conciliation and Arbitration Act 1904. It was held that they were "officers", and therefore eligible to be members of the organisation. Landeryou's case was also followed in Re Election in the Australian Collieries' Staff Association New South Wales Branch (Federal Court of Australia, Lockhart J., 23rd October 1990, unreported). Again, the question was one of eligibility for membership.

44. With these cases must be contrasted cases such as Rounsevell v. Mitchell (1967) 11 FLR 414, at pp, 430-431 and Grove v. Rigby (1971) 19 FLR 160. In the former case it was held that a person whose title was "industrial officer" was not entitled to be a member of the organisation which employed him. In the latter case, a similar fate befell a "public relations officer". What the cases all show is that the question is one of the construction of the rules of the particular organisation concerned. The word "officer" does not bear a universal meaning; it can have any meaning given to it by the particular rules. In the present case, the rules of the branch give it a particular meaning, which does not include the positions of field adviser or publicity officer.

45. One of the arguments put on behalf of the applicants was that, because the duties they performed were the same as or similar to those of elected organisers, and because they were given the benefit of the same terms and conditions of employment as organisers, they were to be regarded as officers. In fairness to the applicants, I should state my findings on the evidence relied on to support this argument. I am satisfied that field advisers were treated in exactly the same way as elected organisers in respect of their salaries and terms and conditions of employment. By rule 47 of the branch rules, they were given equivalent rights to join the Building Unions Superannuation Scheme. No difference between organisers and field advisers was recognised in the allocation of duties. The responsibilities of the two positions were the same. Field advisers attended organisers' meetings, as a matter of course, and participated in the consultation and exchange of information that took place at those meetings. On their engagement as field advisers, Mr Morris and Mr Green were told that they would be appointed on the same terms and conditions as organisers. Mr Morris's evidence was that he was told that he was to be "appointed as an official". Each was given the same document entitling him to a right of entry onto building sites and employers' premises as were elected organisers. Each was told to present himself as an organiser, rather than as a field adviser, to prevent employers taking advantage of any lesser authority which the latter position might be seen to possess.

46. Mr Morris was assigned to carry out organising duties in what was known as Northern Area 3, which encompassed much of the metropolitan area north of the Melbourne central business district and much of northern Victoria. He was responsible for negotiations with employers as to terms and conditions of employment and for handling industrial disputes arising in that area. These disputes sometimes led to proceedings in the Australian Industrial Relations Commission or the Victorian Building Industry Disputes Board, in which Mr Morris would appear and make submissions. He represented the branch at gatherings organised by relevant employer associations, and in liaison with community housing groups. He described as one of his most important functions the collection of Union dues and the signing up of new members.

47. Mr Green's evidence as to his responsibilities was detailed. He represented the Union on the Victorian Building Industry Construction Training Board, the Building Industry Group Scheme and the apprenticeship board. He exercised considerable responsibility in this representative capacity. He was expected to put the views of the Union, after consultation with the branch secretary, or one of the assistant secretaries, as to policy. He was also a representative of the Union on selection panels for apprentices, connected with both the Holmesglen and Dandenong Colleges of Technical and Further Education. He negotiated and signed agreements between the Union and employers, sometimes signing himself as "organiser". He was involved in negotiations with respect to award restructuring in what was known as the "off-site area", which concerned the employment of members of the Union in the manufacture of building components in the establishments of employers, rather than on building sites. For this purpose, he attended four interstate meetings, representing the branch. Mr Green had some particular responsibilities in relation to superannuation, both in the off-site area and in liaison between the Union and the Trades Hall Council. In about March 1989, he had expressed his desire to become involved in the area of compensation for members injured in the course of their employment. He received some training in relation to the Workcare system, and had some involvement in helping to instruct counsel in relation to personal injury cases.

48. There was also considerable evidence as to the nature of Mr Gray's work. As publicity officer, he was responsible for the writing and production of the branch journal, a quarterly tabloid newspaper. He had considerable latitude as to what was published, but was expected to consult with the branch secretary on editorial opinion. As well as the journal, Mr Gray produced posters, leaflets, stickers and similar material for campaigns conducted by the branch. He made himself available as a contact point for journalists seeking information about the Union, and gave interviews. In those interviews, he was concerned to put the view of the branch, rather than his own personal view. His duties included setting up press conferences, when the branch wished to have information published in the media. Mr Henderson took Mr Gray with him on occasions, when he was instructing solicitors and counsel with respect to litigious matters in which the Union was involved. Mr Henderson gave evidence that Mr Gray had a useful political network, so that he was encouraged to engage in some political liaison work. Mr Henderson also said that Mr Gray had some room to move in all that he did in the interpretation of policy which had been adopted by the branch. In addition to his responsibilities as publicity officer, Mr Gray was given a right of entry document. On one occasion, he was called upon to go out and endeavour to recruit members. A measure of his level of responsibility was that he was one of a small number who had keys to the branch office, so that he could perform work after hours.

49. It is abundantly clear that all three applicants were competent in the performance of their duties, and were entrusted with a high degree of responsibility. The nature of their work, the conditions of their employment and their level of responsibility were similar to those of elected organisers. Despite this, they cannot be treated as officers for the purposes of rule 29A. For the reasons I have given, the branch rules on their proper construction exclude the applicants from the protection of that rule. The SMC was not debarred by rule 29A from dismissing the applicants on 6th August 1990.
THE POWER OF THE SMC TO DISMISS.

50. Rule 23(1) of the rules of the branch discloses that the SMC is constituted "for the purpose of controlling the affairs of the Branch.". The specific powers of the SMC are found in rule 23(3). For the purposes of these proceedings, the relevant provisions of that rule are as follows:

"(3) Subject to these rules, the S.M.C. shall:
...
(b) Take such steps as it shall think
fit to carry out within the State
all or any of the aforesaid objects
of the Union, to consider all
business referred to it and to
decide all cases or contingencies
for which no provision is made in
these rules, including retrenchment.
...
(e) Appoint field advisers to advise
members on specific matters as
directed by the S.M.C. Field
advisers must be financial members
of not less than one year's
continuous membership and may be
appointed for periods of three
months, provided that the maximum
period of appointment subject to
quarterly review by the S.M.C. shall
not exceed 12 months. Further
appointment may only be by decision
of the Annual State Conference.
...".

51. Counsel for the applicants relied on the argument that paragraph (e) of this rule committed to the state conference the power to make annual appointments of field advisers. By rule 21(1), the state conference is the governing body, or, in the words of the heading to the rule, the supreme governing body, in the branch. If the state conference made appointments which were to last until May 1991, it was argued that the S.M.C., the powers of which are expressed to be subject to the rules, could not undo those appointments. So far the argument may be accepted. The question is, however, whether paragraph (b) of rule 23(3) contains an express power in the S.M.C. to terminate those appointments. Counsel for the respondents relied on the presence of the word "retrenchment" in paragraph (b). The applicants argued that the power of retrenchment was appropriate with respect to office staff, and employees whose appointments were not made by the state conference.

52. In my view, the power of retrenchment in the S.M.C. should be construed broadly. Swift action may be needed if there is a dramatic change in the financial situation of the branch. Although there is provision in rule 21 for special state conferences, there is no express power in the state conference to retrench. The intention is that the S.M.C. should be able to exercise this power if it sees fit. On that basis, there is every reason to suppose that the power of retrenchment extends to the termination of appointments made by the state conference in respect of field advisers. Otherwise, the power would not be effective. The mere presence in rule 23(3)(e) of a power in the state conference to appoint field advisers does not exclude by implication the termination of those appointments from the power of retrenchment given to the S.M.C.

53. As Wells J. said in R. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Limited (1983) 35 SASR 161, at p 187:

"..."retrenchment" means, these days, to
dismiss. It dates its origin from the days when
laying siege to a city was a long, arduous, and
complicated, operation whose stages were well
understood and followed by both besiegers and
besieged. A retrenchment in those days meant an
interior siege work which sealed off part of a
fortification from the rest of the fort and to
which the garrison could, if sorely pressed,
retreat. The essential idea was cutting off
what had been useful in order to provide the
besieged garrison with a safer place to retreat
to. Dismissal is, logically enough, therefore,
an integral part of retrenchment."

The original meaning of the word "retrenchment" and his Honour's explanation of its present meaning appear to me to illustrate the reason for the inclusion in rule 23(3)(b) of the power of retrenchment. In late July and early August 1990, the S.M.C. was called upon to decide whether to cut off what had been useful in order to provide its administration with a safer place to retreat to. In my view, its power to perform that task included a power to terminate the appointments of field advisers who had been appointed by the state conference.
THE EXERCISE OF THE POWER.

54. It was argued on behalf of the applicants that the S.M.C. did not exercise its power to retrench at all, but delegated it to the coordinating committee. The coordinating committee had no status or powers under the rules. If such a delegation had occurred, there would have been no decision by the S.M.C., and the applicants would have been entitled to continue in their employment. The basis of the argument was that the manner in which the coordinating committee's recommendation was adopted by the S.M.C. on 6th August was inconsistent with any real attempt by the S.M.C. to exercise its power to make a decision.

55. Reliance was placed on passages from the judgments in the New South Wales Court of Appeal in Parramatta County Council v. Hale (1982) 47 LGRA 319, especially at pp 345 and 346-347 in the judgment of Moffitt P. That was a case which concerned a statutory body, with statutory obligations to consider certain specified matters, before making a decision. The court was concerned with circumstances in which it can be said that, by accepting a recommendation, a committee fails to consider all of the matters which it is required to consider. In the present case, the S.M.C. did not have a list of statutory considerations which it was required to take into account.

56. It is common ground between the parties that, on 23rd July 1990, the S.M.C. accepted the report of the finance committee and its recommendation to retrench twelve staff. The S.M.C. itself asked the coordinating committee to make a recommendation as to who should be retrenched. On 6th August, it received and adopted the coordinating committee's recommendation. No impropriety was demonstrated in this process. It was open to the S.M.C. to delegate the investigation of matters to other bodies, provided that it retained control of the ultimate decision. It was open to the S.M.C. to accept the recommendations of those bodies, provided again that it retained control of the ultimate decision. The S.M.C. might just as well have asked an accountant or a management consultant to investigate the financial situation of the branch and to make recommendations as to what should be done. If it merely accepted the advice it received, it could not be accused of delegating the power to make a decision.

57. The evidence discloses that the S.M.C. did make a decision accepting the finance committee's report and recommendation and did itself make a decision accepting the coordinating committee's recommendation. These actions were taken at meetings the validity of which is not attacked. Even if consideration of the recommendations were short, that fact in itself would not indicate improper delegation of the decision. There is no point in debate if all present are happy with the recommendation.

58. There was a conflict on the evidence as to the length of time which the S.M.C. took to hear a report by Mr Raffa concerning the recommendation of the coordinating committee, and to adopt that recommendation. Mr Morris, who was permitted to attend the meeting as a guest, said that there was "little debate" about the matter. Mr Saddington said that Mr Raffa simply announced the decision of the coordinating committee and, after very little debate, the S.M.C. voted to adopt it. According to him, the whole process took five or six minutes. Mr O'Grady's evidence was that Mr Raffa's report took about ten minutes and included an account of the process through which the coordinating committee had gone. There was then debate, with some members of the S.M.C. asking questions and indicating concern about aspects of the decision. The whole process leading to the vote of the S.M.C. to adopt the recommendation took, according to Mr O'Grady, between thirty and forty-five minutes. Mr O'Grady's account is supported to some extent by the minutes of the meeting, which record briefly the fact that members of the S.M.C. asked questions and expressed views, and that explanations were given. It seems to me that Mr O'Grady's account accords with the probabilities more than do those of Mr Morris and Mr Saddington. I therefore find that the S.M.C. spent at least half an hour hearing a report of the coordinating committee's deliberations on retrenchments and in debating the recommendation, before voting to adopt it. The vote was unanimous.

59. Whatever the precise length of the proceedings in the S.M.C. on 6th August 1990, it is clear that the S.M.C. did itself take the decision to retrench. The proposition put on behalf of the applicants, that the S.M.C. unlawfully delegated its decision to the coordinating committee, cannot therefore be accepted.

60. The next line of attack by the applicants was the suggestion that the decision of the S.M.C. was not a bona fide exercise of the power to retrench. It is well established that a body such as the S.M.C. is obliged to exercise each of its powers bona fide and for the purpose for which the power is given, not for any ulterior or extraneous purpose. As authority for this proposition, it is unnecessary to do more than refer to Allen v. Townsend [1977] FCA 10; (1977) 31 FLR 431, in the judgment of Evatt and Northrop JJ. at pp 483-489, Scott v. Jess [1984] FCA 289; (1984) 3 FCR 263, at p 269 in the judgment of Evatt and Northrop JJ. and at p 287 in the judgment of Gray J. and Tanner v. Maynes [1985] FCA 487; (1985) 7 FCR 432, at p 441 in the judgment of Evatt and Northrop JJ. The onus of proving lack of bona fides or the existence of an ulterior purpose rests on the person seeking to prove it, in this case the applicants. That onus may be satisfied by evidence as to the terms in which the power was exercised, or the circumstances of its exercise, which may disclose that no reasonable decision-making body could have believed honestly that it was exercising the power for a legitimate purpose. Compare Joyce v. Christofferson (1990) 33 IR 390, at pp 421-422.

61. In seeking to satisfy this onus, the applicants attempted to rely on many different circumstances leading up to the decision of 6th August. The highest at which their case was put was by Mr Morris in evidence. He suggested that the applicants were victims of a conspiracy between some of the officers in the branch and some officers of the Union at the national level, designed to rid the branch of the applicants, along with Mr Henderson and any other of his supporters. This conspiracy involved the national office takeover, the control of the branch by the coordinating committee, the promotion of people in the national office faction and the Raffa-O'Grady faction, the creation of a financial crisis which did not really exist, the setting up of a finance committee which was unnecessary, the acceptance by the SMC of a recommendation for retrenchment which was also unnecessary, the planning and implementation of a programme of meetings and consultations about retrenchment, detailed and lengthy deliberation of the coordinating committee as to who should be retrenched and the persuasion of the SMC to adopt the resulting recommendation.

62. I had plenty of opportunity to see each of the applicants in the witness box. They were cross-examined at length. There is no doubt that each of them really believed that, in one way or another, he was a victim of a scheme, designed to rid the branch of Mr Henderson and his supporters. Each saw this scheme as emanating from the national office. Each was very willing, and even adept, at interpreting every act, every statement and every event as evidence of the existence of the scheme. Mr Henderson and Mr Saddington, both of whom gave evidence on behalf of the applicants, exhibited a similar tendency. Each was prepared to seize any opportunity to suggest improper motives on the part of those now in control of the branch. Some evidence emerged that a Mr Stamenkovic, a supporter of Mr Henderson and a friend of Mr Gray, had been removed from the SMC in breach of the rules.

63. A conspiracy theory, such as that advanced by the applicants, Mr Henderson and Mr Saddington always finds its basis in fact. Thus, it cannot be denied that there was concern at the national level about the conduct of the affairs of the branch under Mr Henderson's administration. Mr Ethell made clear the existence of such concern. Mr O'Grady's rapid rise to the position of branch president, without any prior membership of the SMC, is unusual. Having seen Mr Raffa at some length in the witness box, I can understand readily how he would not be seen as the obvious choice for branch secretary unless he were being manipulated by someone else. His denial of any ability in the area of finance makes the choice of him as secretary of an administration in financial crisis all the more strange. Mr Raffa's evidence was generally unconvincing. He possessed a stock of answers, which tended to begin with phrases such as, "The policy of the Union is...". When asked a question, Mr Raffa would consider whether any of his stock answers could be used. If not, he often committed himself to propositions which were later demonstrated to be false, on his own admission. He seemed ever ready to say whatever might suit the respondent's case, without appearing to have applied any real depth of thought as to the nature of that case. He was unable to conceal his antagonism towards the applicants or his desire to protect some persons in the current administration of the branch from criticism. I am not inclined to accept Mr Raffa's evidence, unless it is corroborated. On the other hand, I found Mr Ethell's evidence to be balanced and credible. I also found myself able to accept much of what Mr O'Grady said.

64. The major factor which tells against the applicants' conspiracy theory is that they were three of ten persons retrenched as a result of the decision on 6th August. On the applicants' own evidence, it is clear that not all ten were Henderson supporters. Each of the applicants, and Mr Henderson and Mr Saddington, were asked to allocate each of the other seven persons who were retrenched at the same time as the applicants to one or other of the factions in the branch, or to say whether each was "neutral". There were substantial conflicts of evidence amongst those five witnesses as to where those persons could be placed. Even at its lowest common denominator, the evidence indicates that at least one member or supporter of the Raffa-O'Grady faction, namely Barry Young, was among those retrenched. It is difficult for the applicants to establish that any conspiracy against them went so far as to involve the branch in shedding seven other persons, who were variously either neutral or well disposed towards the Raffa-O'Grady and national office factions. There was also some evidence that field advisers who were not obvious supporters of the national office or Raffa-O'Grady factions were among those not dismissed.

65. In attributing to the national office responsibility for the conspiracy, the applicants overlooked the fact that national office involvement, through Mr Ethell's presence in the branch office, was invited by Mr Henderson as his own remedy for what he perceived to be problems within the branch.

66. A major issue in the proceedings was the state of the finances of the branch. The applicants were not inclined to accept figures that were put forward as showing that the income of the branch was not sufficient to meet its outgoings, and that losses were being incurred. They also advanced the view that assets ought to have been sold, rather than people retrenched. They pointed to the motel at Airey's Inlet, and to 1 Lygon Street, as unnecessary assets, which did not produce income. They claimed that, had these properties been sold, the branch would have been able to tide itself over any difficult time, without shedding any staff. They believed that a membership drive, aimed at ensuring that unfinancial members paid their dues and that non members were persuaded to join, particularly in off-site establishments and on small sites, such as houses, would also have assisted the branch to overcome its financial difficulties without having to resort to retrenchments.

67. In fact, by the middle of 1990, the building industry in Victoria was already beginning to move into recession. On one version of figures from the branch's computer, the financial membership of the branch dropped from 24363 in August 1989 to 22183 in August 1990. By the latter time, almost all payments of dues which were to be received in respect of the six months ended 30th September 1990 had come in. The income of the branch was not sufficient to meet its outgoings. There were difficulties about selling 1 Lygon Street, and advice had been received from a real estate agent that, owing to a decline in the market, that building would not fetch its true market value at that time. Retrenchment of staff may be an unpalatable option, especially for a trade union, which is concerned to press the employers of its members to retain those members in employment. Nevertheless, it was one possible answer to the financial problems of the branch. It was an answer which Mr Henderson and Mr Saddington accepted as legitimate, even if not completely desirable. Mr Morris proposed job sharing at one meeting, but the idea received no support; it is not surprising that organisers and field advisers would be opposed to working short time for lower pay. Reasonable persons constituting the SMC could take the view that it was necessary to retrench persons, in order to avoid incurring further losses.

68. Central to the applicants' case as to why they were dismissed was their criticism of the procedure of the coordinating committee, in arriving at its recommendation on 2nd August. None of the applicants was present at that meeting of the committee. Their evidence as to what occurred came from Mr Saddington. The respondents' evidence was from Mr Ethell, Mr O'Grady and Mr Raffa. There were disagreements as to the procedure followed, but some findings may be made about what occurred. The names of all persons who were organisers and field advisers were written on a white board. It was decided that the figure of twelve to be retrenched, which had been arrived at by the SMC, could be reduced to ten, because Mr Henderson's salary was being met by the national office and an existing vacancy in the position of industrial officer could be filled by combining the job with that of education officer. A decision was taken that elected organisers could not be dismissed, because of the provisions of rule 29A. It was decided that country field advisers would not be dismissed. The meeting then examined all of the remaining field advisers in turn. An attempt was made to reach a consensus. If there were not significant support for a particular person remaining with the branch, that person's name was transferred to a short list on the white board. The names of Mr Morris and Mr Green were put onto that short list. As the process went on, there were second and third rounds of discussion as to particular names, until a consensus was reached that a name should go onto the short list. At some stage, Mr Saddington objected that the off-site area, for which he had responsibility, was being stripped of all its field advisers. The meeting resolved to take the name of Malcolm Smith, who was an off-site field adviser, off the short list. When a proposal was made to put Barry Young on the short list, Mr Raffa spoke vigorously on Mr Young's behalf, in an attempt to ensure his retention. With respect to the last two or three of the eight names which eventually appeared on the short list, there was a ballot taken.

69. The meeting then turned its attention to what were called the specialist officers. These were four in number, being Andrew Holgate, the Workcare officer, Mr Gray, the publicity officer, Mario Santana, the ethnic liaison officer and Annie Cowley, the women's officer. It was necessary to choose two out of four, and Mr Holgate and Mr Gray were chosen.

70. The entire process took more than four hours, with the discussion on the specialist officers occupying about one hour. It certainly does not bear any signs of the swift execution of a plot to do away with the three applicants. I accept the evidence of Mr O'Grady that it was a difficult and emotional experience for all concerned, but one which they felt had to be undergone for the sake of the branch.

71. The applicants attacked the decision of the coordinating committee on the ground that it had not applied any criterion other than personal preferences, and particularly that it had not applied various criteria which they suggested should have been applied. They argued that elected officials should have been considered for retrenchment. In my view, the coordinating committee took a correct view of rule 29A. At the very least, it was reasonable for the committee to adopt the view that no elected organiser could be dismissed without being found guilty by the SMC of an offence within that rule. The applicants criticised the decision to exempt country field advisers, pointing particularly to a concentration of branch officials in the Latrobe Valley, where they said there were relatively few members. Again, it was reasonable for the coordinating committee to take the view that the Union needed to maintain a presence in country areas. The decision to retain all country field advisers is not evidence of a desire simply to be rid of the applicants. The evidence of Mr Saddington about neglect of the off-site area was also taken up. This was a matter on which the coordinating committee had to balance various factors. In fact, Mr Saddington's protest about the neglect of the off-site area was upheld, and Mr Smith was retained. It was argued that Mr Green had more experience in the off-site area than Mr Smith, as well as longer and broader experience, which was of more use to the Union. Similarly, it was suggested that Mr Morris was a better field adviser than some of those who were retained. These are not matters which the Court can judge. They were matters for the coordinating committee. As long as it approached its task honestly, there is no way that the Court can overturn its decision. There is every indication that the coordinating committee approached its task in a proper manner.

72. The applicants attempted to set up as a criterion of performance of field advisers and organisers the collection of dues from members. They put into evidence statistical information, which showed that Mr Morris was the second highest dues collector in the branch and that Mr Green rated quite favourably. The respondents countered this with evidence that only 3.72% of dues were collected by organisers. The balance came from payments to shop stewards, payroll deductions by employers and payments by members direct to the branch office. The question of collection of dues is complicated by the existence of "no ticket no start" agreements on major building sites. Under those agreements, all employees on site are obliged to belong to their appropriate unions, and employers are obliged to ensure that they do. If an employee is discovered not to be a financial member of the appropriate union, he or she is to be sent off the site immediately, until able to produce a current union ticket. The employee concerned will usually attend at the branch office of the relevant union, pay the necessary dues, receive the ticket and return to the site. Because of this agreement, organisers and field advisers working in areas with a high concentration of major building sites, such as the central business district of Melbourne, were unlikely to be very productive in the collection of dues. Some attempt was made on the part of the applicants to say that breaches of the no ticket no start agreements occurred, and that organisers and field advisers should be diligent in seeking out unfinancial members. This may be so, but whether the resulting dues will be recorded in the receipt book of the organiser, rather than that of the shop steward or the branch office, might well be a matter of accident. On any view, collection of dues was not the only duty of field advisers. It may be true that an efficient dues collector is likely to be an efficient field adviser in other areas, but this is not necessarily so. It was a matter for the coordinating committee to judge whether it was so in a particular case. It is interesting to note that the leading dues collector in the branch, Gary Burleigh, who was well ahead of Mr Morris, was among the ten persons retrenched. The applicants said that this illustrated the irrationality of the coordinating committee's decision. It may equally well illustrate the coordinating committee's need to balance many factors in coming to a decision that the branch could do without the services of a particular person.

73. Another major criterion which the applicants said should have been applied by the coordinating committee was the "last on first off" policy. It was said that this was the policy of the Union, pressed upon employers at every opportunity. It required that, in retrenchments, employees whose length of service was least should be chosen first. It was said that this policy was reaffirmed by the SMC on 12th November 1990, as being the appropriate policy in the building industry. Accepting this, and accepting that the last on first off policy is a fair one, it is not possible to say that the failure of the coordinating committee to apply it is evidence of lack of bona fides. According to the evidence of Mr Saddington, the coordinating committee discussed applying the "last on first off" principle, but rejected it as inappropriate. Some attempt was made to rely on what was said in Roughan v. Coulson (1982) 3 IR 393. In that case, the Full Court upheld the validity of a decision of a committee of management of a branch of a registered organization to reduce the number of its paid organisers by two. At p 396, Smithers J. said:

"It is my view that the committee could make
that choice by reference to any reasonable
criterion. It was necessary of course that it
make a choice bona fide by reference to the
interests of the branch. The test it applied,
namely to remove the two with the shortest period
of service as organisers was quite reasonable."

At p 398, in their joint judgment, St. John and Northrop JJ. said:

"The criteria (sic.) for dismissals selected was
one well-known and frequently applied in
retrenchment situations, namely, seniority or,
"last to come, first to go"."

Nothing in these passages suggests that there is any necessity for "last on first off" to be applied whenever people are selected for retrenchment. It is only one of many possible reasonable criteria. The coordinating committee could make its judgment without reference to "last on first off" if it chose to do so.

74. With respect to Mr Gray's position, the applicants' case was that the coordinating committee had not assessed properly the relative values to the branch of Mr Gray as publicity officer, the women's officer and the ethnic affairs officer. Mr Holgate, the workcare officer, was left out of account. He really chose himself for retrenchment, because he had indicated his intention of leaving the employment of the Union in any event, to establish a company called "U-Care", to offer services to Workcare claimants.

75. The retention of Ms Cowley as women's officer was criticised by the applicants on the basis that there were only some twenty women who were members of the branch. The respondents put the figure rather higher than this, and also referred to the subsidisation of the position of women's officer through government grants and the need to demonstrate the Union's concern with respect to women's affairs. Ms Cowley represented the Union on the Victorian Building Construction Training Board. The applicants said that Mr Santana's services could be dispensed with, because there were elected organisers capable of carrying out ethnic liaison work, including one who spoke Spanish, which was Mr Santana's first language. The respondents pointed to considerable experience and skill of Mr Santana, when compared with the elected organisers concerned, and to his extensive involvement in programmes which might benefit members of the Union in Victoria whose origins were other than Australian. Mr Santana represented the Union on the Building Industry Agreement Consultative Committee.

76. On the positive side, the applicants stressed the importance of Mr Gray's work, and gave evidence of instances when he had been told by others, including Mr Ethell, that his work was very important. Mr Gray was critical of the standard and frequency of the journal after he left, and of the need to contract out some publicity work. On the other hand, the view was expressed within the coordinating committee that some of the work then being done by Mr Gray could be performed by Ms Spalding, whose salary was being paid by the national office. These were all matters which the coordinating committee had to balance. Even if I were to come to the view that the coordinating committee did not arrive at the best possible conclusion, I would be unable to find, on that ground, that it acted other than bona fide.

77. The applicants relied on the proposition that, as part of its procedure on 2nd August, the coordinating committee agreed that all of its members who were members of the SMC would be committed to supporting its recommendation at the SMC. This was put forward as an indication that the members of the coordinating committee regarded themselves as a "caucus". It was also relied on as evidence of the lack of consideration which the SMC gave to the question of retrenchment. In my view, it was neither. It is clear that the coordinating committee was not composed of representatives of one faction. It is also clear that not all of the members of the coordinating committee were members of the SMC. The coordinating committee had been requested to make recommendations as to who should be retrenched. The impact of its recommendations would be lost if any member of the coordinating committee, who happened to be a member of the SMC, were able to recommit the question in the SMC, and reopen the debate. The agreement to present the consensus of the coordinating committee as a united recommendation cannot be relied on to support the applicants' case.

78. Some attempt was also made to rely on express statements by various persons, said to indicate the lack of bona fides of the SMC. Thus, Mr Green alleged that in March 1990, Mr Raffa told him that he would be on a leadership ticket for the 1991 elections if Mr Henderson could be pushed out of office. Mr Gray alleged that at an organisers' meeting in late May 1990, Mr Don McDonald, secretary of the New South Wales Branch of the Union, identified him as a close political ally of Mr Henderson. Mr Gray alleged that in June 1990, Mr Ethell discussed with him the national office takeover and told him that he would be sacked if he supported Henderson. Mr Gray also alleged that he was told by Tony Medina, an organiser, that he should support the national office takeover and drop his support for Mr Henderson. Just what these statements were intended to prove is difficult to say. In some cases, they were made by persons not members of the SMC. They cannot therefore be relied upon as showing any state of mind against the applicants, existing within the SMC. In any event, lack of bona fides or ulterior purpose on the part of a decision making body is not established by evidence of the statements of its individual members. Indeed, the evidence of these alleged statements serves to indicate that the applicants' case depended upon the acceptance of the existence of a widespread conspiracy against them.

79. A good deal of the trial was taken up by evidence of events after 6th August 1990, connected with attempts by the applicants to obtain employment. This evidence was not led only for the purpose of establishing rights of the applicants to damages. It was relied on as demonstrating the existence of the conspiracy against them, which led to the alleged invalidity of the decision to dismiss them. On 8th August 1990, at the organisers' meeting, at which the retrenchments were announced officially, Mr Raffa expressed a commitment on the part of the remaining officials of the branch to finding employment for those who were being retrenched, if possible in the building industry. The case of the applicants was that this commitment was honoured in relation to other persons retrenched, but not in the case of the applicants. Further, they went so far as to suggest that they were unable to gain employment in the building industry as a result of deliberate pressure, exerted on employers by officials of the branch, to prevent the applicants gaining employment, or to cause their dismissal when they were in employment.

80. In evidence-in-chief, each of the applicants gave evidence in definite terms, implicating branch officials in this form of sabotage of his career. Thus, Mr Morris's evidence was that he had been offered a position on an Altona site of Baulderstone Hornibrook, but after a visit by an official of the Union to that site, the offer "dried up". He had also received definite offers of employment on three sites of Leighton Contractors. He had declined to be employed at 417 St. Kilda Road, because of trouble on the site. After the offers had been made, in respect of a site at Broadmeadows and a site at Bendigo, there was then discussion about his bringing legal proceedings against the branch officials and he was told that it would be harder to gain employment unless he "dropped off" the litigation. He was also offered employment by a firm called Probuilt, performing work on the Melbourne Central site of Lewis Constructions. The work involved two weeks being paid to stay at home, which he declined to accept because it would have diminished his credibility for future election as a union official. The offer, according to him, later disappeared.

81. Mr Green said that Mr Santana told him in August 1990 that the members of the executive were not going to put themselves out to find Mr Green a position. He approached Mr Raffa, who denied this and said that the promise to help with finding work would be honoured. Mr Green found work at 417 St. Kilda Road. His evidence was that a field adviser named Willie Shacklock visited the site and Mr Green's employment was terminated on the following Friday. Mr Green said he was told by Mr Shacklock that an apology to Mr Raffa might help to secure him a position. Mr Green claimed to have been told by Mr O'Grady and Mr Fuller to drop his legal action or he would not be able to get a job. He also recounted a meeting with Mr Barrie Brady of Baulderstone Hornibrook, in which Mr Brady said that he would have to ask if Mr Green would be acceptable on the site contemplated. Mr Green also complained that Mr Raffa would not release him from the obligation to work out his notice in August 1990, so that Mr Green could take up other employment. He also made the statement in examination in chief that Mr Brady had been contacted by a Union official with respect to Mr Green's employment.

82. Mr Gray secured employment with a firm called Unimarmo, which performed stonemasonry work. Mr Gray was employed as a labourer for less than two weeks before he was dismissed. He blamed branch officials for his dismissal.

83. When cross-examined about these allegations, the applicants each gave less confident assertions of interference in their employment prospects. Mr Morris recounted a conversation with Phil Welsh, an organiser, with respect to the Baulderstone Hornibrook site at Altona. It appeared from this conversation that Mr Welsh had been under the impression that someone was trying to put Mr Morris onto the Altona site, and to make him shop steward at the expense of the existing shop steward. Mr Welsh had been concerned to protect the existing shop steward. Upon discovering that there was no intention to oust the shop steward, Mr Welsh admitted his mistake, and offered to give Mr Morris what assistance he could to find employment. Also in cross-examination, Mr Morris backed away from any suggestion that pressure had been put on Leighton Contractors not to give him a job. He agreed that no firm offer had been made of employment by Probuilt, and said that the only evidence he had of pressure on Probuilt was "a feeling".

84. Similarly, Mr Green in cross-examination agreed that he knew of no pressure having been brought to bear on any employer with respect to him. He described the visit of Mr Shacklock to the St. Kilda Road site and the subsequent termination of Mr Green's employment as a "coincidence". He agreed that on at least one occasion when he alleged Mr O'Grady and Mr Fuller were telling him to drop his legal action or he would not be able to get a job he had no legal action on foot, although one of these conversations may have been a reference to proceedings brought in the Victorian Industrial Relations Commission.

85. Only Mr Gray adhered to the proposition that improper influence had been brought to bear. As will be seen, he had more reason than the others to believe this. He did agree that he had been engaged by Unimarmo on a short term basis although he maintained that his trial period had not been completed at the time when he was dismissed.

86. Evidence called by the respondents tended to make the case of the applicants as to the sabotaging of their employment prospects even worse than did the evidence of the applicants in cross-examination. It emerged from the evidence of Mr Brady that he had been approached by Mr Henderson with respect to employment prospects on the Altona site. Mr Morris had not been mentioned by name. There was never an offer of employment for Mr Morris on that site, because the company had employees finishing up at other sites, to whom it owed a prior obligation. Mr Brady denied that any pressure had ever been brought to bear on him by any official of the Union. Mr Stephen Witts from Leighton Contractors made the same denial. He made it clear that no job had been offered to Mr Morris. He had received a written application for employment from Mr Morris, but the matter had gone no further. Mr Witts did concede that it would be a matter of concern to him that a prospective employee was engaged in litigation against officials of the Union. The concern seemed to have more to do with avoiding trouble on the site than with protecting the interests of the officials.

87. It is only in relation to Mr Gray that evidence emerged suggesting improper interference in his obtaining employment. Mr Gray's position at Unimarmo came about because of assistance from Mr Saddington. Although, while working in the branch office, Mr Gray had become a member of the Building Union's Superannuation Scheme, it was necessary for him to register with the Building Industry Long Service Leave Board. It was normal for a prospective employee to fill out an application form for this membership, and leave it in the branch office. From time to time, forms which had been so lodged would be forwarded to the long service leave board. At about 2.30 p.m. on 5th November 1990, Mr Gray completed and lodged his form at the branch office. Within an hour, that form was brought to the notice of Mr Raffa. Mr Raffa rang the telephone number shown on the form, believing it to be the number of Unimarmo. It was Mr Gray's home telephone number. A conversation ensued between Mr Raffa and Mr Gray, part of which was tape-recorded by Mr Gray. In the conversation, Mr Raffa represented himself to be an official of the long service leave board and, at a different time, an official of the redundancy board. He enquired whether Unimarmo was "a company or a contractor". Mr Gray recognised Mr Raffa's voice at an early stage. It was some way into the conversation before Mr Raffa realised that he was talking to Mr Gray. Even at that stage, Mr Raffa apparently did not realise that he had telephoned Mr Gray's home.

88. Mr Gray took his tape-recording of the telephone conversation to Mr Henderson, who played it to Mr Ethell. Mr Ethell undertook to enquire into the telephone conversation. It was apparently discussed at a meeting of the coordinating committee, but nothing further was done.

89. On a subsequent occasion, Skender Bregu, who ran Unimarmo, was summoned to the branch office. He was interviewed by Mr Bingham, in the absence of Mr Raffa on leave, with respect to his contributions to the long service board and the redundancy board. Mr Bregu admitted that, at the time when he had engaged Mr Gray, he had been a month or two behind in those contributions. He had with him receipts, which showed that he was up to date at the time of the interview with Mr Bingham. Notwithstanding this, he was summoned to the branch office again to be interviewed by Mr Raffa. In that interview, Mr Raffa seemed to be less concerned with Unimarmo's obligations with respect to long service leave and redundancy, and more concerned with telling Mr Bregu that he was unhappy about being told to "get fucked" on the telephone. This interview indicates that, even at that stage, Mr Raffa did not realise that he had telephoned the wrong number on 5th November.

90. In the course of the interview with Mr Bingham, there was discussion about the employment of Mr Gray by Unimarmo. Mr Bingham told Mr Bregu to tell Mr Gray not to be paranoid and that the Union had nothing against Mr Gray being employed by Unimarmo. Mr Bregu's evidence was that he did not take this statement to be an implied threat to either him or Mr Gray, with respect to Mr Gray's employment by Unimarmo. Nevertheless, the conversation made Mr Bregu feel uncomfortable. He did not feel more comfortable as a result of the interview with Mr Raffa. He did give evidence that no pressure was brought to bear on him with respect to employing Mr Gray. He had engaged Mr Gray for a trial period of two to three weeks, giving him an indication that the job concerned was winding down, and stonemasons employed by Unimarmo would be laid off in the near future. Mr Bregu's evidence was that he dismissed Mr Gray because of lack of work, and not because of any concern about the attitude of the Union. Unimarmo had subsequently taken on Mr Bingham's son as a labourer. Again, Mr Bregu denied having been subjected to any pressure in this respect.

91. While I accept Mr Bregu's evidence, I cannot regard the telephone conversation between Mr Raffa and Mr Gray and the interview between Mr Raffa and Mr Bregu with anything other than disquiet. Mr Raffa defended his conduct by saying that Unimarmo had been disclosed by a list sent by the long service leave board to be behind in its contributions. Because little was known about Unimarmo, Mr Raffa said he had instructed his organisers to keep an eye out for Unimarmo. One of the organisers had seen the name on Mr Gray's long service leave application form and had brought it to Mr Raffa's attention. Mr Raffa's pretence at being an official of the long service board or the redundancy board was a device which he said he often used, because it was impossible to get information by telephoning and saying that he was from the Union. All these explanations do not explain one significant fact, and that is the very short time which elapsed between the lodging of Mr Gray's form and the making of the telephone call by Mr Raffa. I am sure that, if the form had been lodged by anyone other than one of the applicants, Mr Raffa's attention would not have been given to it so immediately or in such a dramatic way. Mr Ethell and Mr O'Grady were inclined to dismiss Mr Raffa's telephone call as silly. I am inclined to think that it was more sinister than that, and that Mr Raffa may have been attempting to prejudice Mr Gray's chances of gaining employment. In the event, he was unsuccessful in doing so.

92. This conclusion does not necessarily mean that I should find the existence of the conspiracy which the applicants allege. Mr Raffa's act was that of one person. Clearly, he was antagonistic towards the applicants. Whether his antagonism had been caused, or increased, by the fact that the applicants had not accepted their dismissal, but had involved the branch in expensive litigation, was never clear.

93. Much was made of the allegedly differential treatment that was meted out to the applicants and to the other seven retrenched persons, in the way in which the commitment to find employment for them was implemented. It was said that Mr Holgate was going to set up his U-care business, with the support of the branch, which included a delayed payment of rent for office space provided at 500 Swanston Street. Barry Young obtained immediate employment at 417 St. Kilda Road, and became a shop steward on that site shortly thereafter. Pat Preston was re-employed immediately by the Union, as an occupational health and safety officer for the branch, with the support of a government grant. This was contrasted with the difficulties that the applicants had in finding employment. In fact, help was given to the applicants. Mr Henderson tried both Baulderstone Hornibrook and Lewis Constructions for Mr Morris. Mr Morris was told by someone in the branch that a position had been obtained for him on the Melbourne Cricket Ground site. Mr Morris responded by saying that he would rather find employment for himself. Mr Green acknowledged the assistance of Mr John McPartlin in finding him work at 417 St. Kilda Road. He also admitted that Mr O'Grady had offered to approach employers on Mr Green's behalf if Mr Green had any position in mind. Eventually, Mr Green obtained employment, which he commenced during the trial. Mr Saddington assisted Mr Gray in obtaining the Unimarmo job. It will be noted that most of the assistance which was given to the applicants came from people who might have been regarded as aligned with them. It was, nonetheless, assistance from the branch in finding employment. That it was unsuccessful, during a time of downturn in the building industry, was not really surprising. The failure of the branch officials to present the applicants with jobs into which they could simply walk should not be regarded as a symptom of a plan to remove them.

94. One further fact was relied on by the applicants as demonstrating the existence of such a plan. Shortly after 6th August, a field adviser named Nick Nicoli tendered his resignation. Mr Raffa did not want him to resign. The SMC did not accept his resignation, and he was persuaded to continue working. It was said that, if Mr Nicoli wanted to resign, he should have been allowed to do so and one of the retrenched field advisers should have been offered his position. The only evidence about Mr Nicoli is that his attempted resignation arose from personal considerations and that he was persuaded not to proceed with it.

95. I have dealt in some detail with all of these aspects of the applicant's case, in an endeavour to present it as fairly as I can. Whether viewed as a whole, or piece by piece, it has not persuaded me to hold that the SMC acted other than bona fide and for a proper purpose in retrenching the applicants. The case was conducted on the assumption that it would have been improper to dismiss the applicants because of their loyalty to Mr Henderson. I am by no means sure that this is so. It is quite likely that, in the minds of some persons on the SMC and the coordinating committee, the loyalty of the applicants to Mr Henderson was a factor in their being chosen on the list for retrenchment. It is quite natural that, in the situation in which the coordinating committee was placed, there would be a desire to ensure that the officials of the branch who remained after retrenchment were as united as possible behind the new branch leadership. In this context, it may well have been legitimate for the persons making the decision to take into account the fact that the applicants were highly likely to disrupt the unity of the branch, by clinging to the policies which had been advocated by Mr Henderson.
THE CONTRACT CLAIMS

96. I do not accept that any of the applicants had a fixed term contract, which was not terminable before the end of the term. Each was appointed by the state conference in May 1990, until the state conference in May 1991. The authority for each appointment came from the rules of the branch. It was therefore authority to make an appointment which was subject to the SMC's power with respect to retrenchment. Any resulting contract was therefore subject to the right of the SMC to dismiss each of the applicants, in the event that it decided retrenchment was necessary.

97. I reject Mr Gray's claim to have been given secure employment from his engagement until the 1991 elections. Even if such a promise were made, no official of the branch would have authority to make it, in the light of the provisions of the rules. It was made clear to Mr Gray that his appointment would be as a field adviser, although his position would be given another title and he would be given duties different from those of other field advisers. The appointment was therefore subject to the rules with respect to field advisers and Mr Gray was in no different position from the other applicants.

98. The power of the SMC, even in the case of retrenchment, was subject to any provisions of the contract of employment of the person concerned as to notice. It is common ground that there was no express provision as to notice in the applicants' contracts. It follows that they were terminable on reasonable notice. Each person retrenched was offered entitlements in accordance with either the National Building Trades Construction Award or the Victorian Building Industry Agreement, whichever was more favourable to the person being retrenched. Each involved one month's notice, which the person retrenched was obliged to work out. In addition, Mr Morris received a lump sum equivalent to eight weeks' pay, Mr Green received the equivalent of seven weeks' pay and Mr Gray received the equivalent of six weeks' pay. The applicants attempted to argue that one month's notice was less than reasonable.

99. The reasonableness of a period of notice depends upon the nature of the employment. I have held that each of the applicants was called upon to exercise considerable responsibility. On the other hand, each was only engaged for a year at a time. Each was subject to the direction and control of the branch secretary and the SMC. None was placed in charge of any other employee. In the circumstances, one month appears to me to be reasonable. It must be remembered that notice of termination is double sided. The applicants were inclined to complain of having been compelled to work out their notice. I doubt that they would have regarded it as reasonable, had they been expected to work out three or six months' notice, before they could seek new employment.
CONCLUSION.

100. For the reasons which I have given, all three proceedings must be dismissed.