Re Angelo Palma v Bruce Wilson; Robert Smith; Fred Phillips; Jim Collins; Mick Walsh; John Clarence; Mick Moloney; Bob Hutton and Max Warnecke [1992] FCA 519 (30 October 1992)

FEDERAL COURT OF AUSTRALIA

Re: ANGELO PALMA
And: BRUCE WILSON; ROBERT SMITH; FRED PHILLIPS; JIM COLLINS; MICK WALSH; JOHN
CLARENCE; MICK MOLONEY; BOB HUTTON and MAX WARNECKE
No. V I61 of 1992
FED No. 821
Industrial Law

COURT

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

CATCHWORDS

Industrial Law - registered organisation - performance and observance - power of Branch Executive Committee to appoint acting Branch Secretary for three month period - whether exercisable for successive three month periods.

Industrial Law - registered organisation - rules - performance and observance - obligation of applicant to have matter dealt with within the organisation - Court's discretion to refuse to deal with application.

Industrial Relations Act 1988 s.209.

HEARING

MELBOURNE
30:10:1992

Counsel for the applicant: D. Staindl

Solicitors for the applicant: Maurice Blackburn and Co.

Counsel for the respondents: A. North QC and M. Bromberg

Solicitors for the respondents: Slater and Gordon

Solicitor for A.W.U. Intervening R. McClelland by leave:

ORDER

Application dismissed.

DECISION

GRAY J. The applicant in this proceeding is a member of Australian Workers' Union ("the Union"), an organisation of employees registered pursuant to the Industrial Relations Act 1988("the Act"). The respondents, other than the first respondent, constitute the branch executive committee of the Victoria branch of the Union ("the branch").

2. On 23rd October 1992, the applicant obtained a rule to show cause seeking orders with respect to the position of branch secretary of the branch. He has applied today for interim orders under s. 209(4) of the Act. The orders which he has sought today are that the respondents and each of them cease to recognise the first respondent, Bruce Wilson, as the acting secretary, however described, of the branch, that the first respondent cease to hold himself out as or to fill the position of branch secretary or acting branch secretary of the branch, that the respondents and each of them recognise the second respondent, Robert Smith, as the current holder of the position of branch secretary of the branch, and that the second respondent perform and carry out his duties as branch secretary of the branch.

3. The evidence discloses that the second respondent, Mr Smith, was elected to the office of branch secretary of the branch in 1989. By virtue of the provisions of rule 74(c) of the rules of the Union, he holds that office until 1st February 1994. At some time in June 1992, Mr Smith indicated to some persons an intention to resign from his office. It is unnecessary to go into detail as to the evidence of that intention, because, for the purposes of this application for interim orders, the applicant accepts that Mr Smith did not resign his position and that the position is not vacant in a way that would require the filling of a casual vacancy under the provisions of rule 79 of the Union's rules.

4. At about the time when he announced his intention to resign, Mr Smith was the subject of allegations of misappropriation of the funds of the Union in the branch. He desired to take leave pending an investigation by the Victoria Police as to whether criminal charges should be laid in respect of that alleged misappropriation. Accordingly, on 29th June, at a meeting of the branch executive committee, a resolution was passed in the following terms:
"This Victoria Branch Executive hereby resolves to approve the

leave requested by Branch Secretary Bob Smith for an initial
period of three months and to appoint Bruce Wilson Acting Branch
Secretary to perform the duties of Branch Secretary for the
duration of the approved leave, effective 29.6.1992."

That resolution clearly owed its authority to rule 43(f)(i) of the rules of the union which provides as follows:

"Branch Executives or Delegate Meetings shall have power to:
(f)(i) Appoint an Acting Branch Secretary or District
Secretary for a period of no longer than three
calendar months to perform all of the duties of
the Branch Secretary or District Secretary in
the event of the Branch Secretary or District
Secretary being required to be absent from duty
on any approved leave. Any such person
appointed in an acting capacity shall be a
member of the Union and in addition shall be
qualified to hold such position in accordance
with Rule 68."

It is not contended that Mr Wilson was disqualified by the second sentence of that provision of the rules from being appointed as acting branch secretary. Following the resolution of 29th June, Mr Wilson performed the duties of branch secretary of the Victoria branch and held himself out to be acting branch secretary. When the three months contemplated by the resolution expired, the investigations of the Victoria Police had not been completed. Accordingly, on 2nd October 1992, the branch executive committee again met and passed the following resolution:

"1. In accordance with the Rules Bob Smith be authorised
to take approved paid leave for three months from
2/10/92 to 2/1/93.
2. In accordance with the Rules Bruce Wilson be appointed
as Acting Secretary of the Victoria Branch for three
months from 2/10/92 to 2/1/93."

5. The applicant's contention in support of the application for interim orders is that rule 43 (f)(i) does not permit an appointment for more than a single period of three months. The applicant contends that, after 29th September 1992, Mr Smith should carry out the duties of branch secretary unless and until a casual vacancy in that office arises.

6. I am not persuaded that the contention of the applicant with respect to rule 43(f)(i) has sufficient weight to warrant the grant of an interim order. That contention would involve a highly inconvenient construction of a rule which is designed to be beneficial to the management of branches of the Union. It would be possible to multiply, as was done in argument, instances of inconvenience which might occur if the rule were construed as the applicant would wish. The words of the rule do not compel the conclusion which the applicant advances. They sit equally with the proposition that appointments for successive periods, each of not more than three months, are possible, where an office holder is not performing duties by reason of a grant or grants of approved leave. I see no difficulty at all in construing the rule as giving power for the appointment of such successive periods. Accordingly I regard the applicant's case for final relief on that issue as being a weak one.

7. Although the counsel for the applicant sought to suggest that he was relying on the balance of convenience, in truth nothing has been placed before the Court at all by way of evidence as to the balance of convenience. I am simply not in a position to know what effect requiring Mr Smith to resume the duties of branch secretary would have, given that he is apparently unwilling to perform those duties while the controversy concerning alleged misappropriation exists. It was not suggested by any evidence that the carrying on of those duties by Mr Wilson was in any way deleterious to the conduct of the affairs of the branch.

8. I should also say that the form of the last order sought causes me some disquiet. My attention was drawn by counsel for the applicant to the decision of the Court in Pillar v. O'Grady (3rd August 1990, Keely J., unreported), in which an order was made with respect to the then branch secretary of the Building Workers Industrial Union, in a form which has obviously served as a precedent for the order which is sought in the present case. An order under s. 209 of the Act which does not specify with some precision the obligations which the respondent to it is required to perform seems to me to suffer from the vice of rendering that respondent liable to possible proceedings for contempt of court, upon fine distinctions as to whether duties have or have not been performed, or indeed whether they have or have not been performed adequately. I do not know whether arguments along these lines were put to the court in Pillar v. O'Grady, but I feel obliged to say that the fact that an order in those terms was made in that case does little to calm my disquiet about orders of that kind.

9. Counsel for the respondents also relied upon the provisions of subs. (3) of s. 209 of the Act, which entitle the Court to refuse to deal with an application for an order under the section, unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation. There is no evidence of any steps which the applicant has taken. There is evidence of rule 21 of the rules of the Union, under which an officer who believes that any member has committed a breach of the rules should report such breach to the district secretary or branch secretary or the general secretary or executive council. It is not suggested that the applicant is an officer. It is true that he did not write to anybody in the organisation before commencing proceedings and make his allegations about breach of the rules, in the hope of having them remedied, if indeed there were a breach. It is also true that the matter does involve a point of construction of the rules which is essentially a legal point. I find it somewhat difficult to condemn the applicant to not having his proceeding dealt with at all because he has failed to raise a question, which is essentially a legal one, with any of the decision-making organs of the organisation. Accordingly, I do not exercise against the applicant the discretion under s. 209(3). The effect of that decision is that, if the applicant desires to continue with the proceeding to the stage of trial, it is open to him to do so.

10. For the foregoing reasons, the application for interim orders is dismissed.