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Federal Court of Australia |
Last Updated: 28 April 1998
INDUSTRIAL LAW - election inquiry - interpretation of rules of the Organisation - question of whether a Regional Council constituted under the Rules of the Organisation is a collective body of a branch of an organisation - whether the Regional Council has power in relation to the management of the affairs of the branch - nature of a branch of an organisation - nature of office where election is for members of Regional Council being organisers - meaning of "branch" and "office" in Workplace Relations Act 1996 .
Workplace Relations Act, s 3, 4, 194, 195, 196, 197, 199, 218, 227-232, 253 ZD-253 ZF
Conciliation and Arbitration Act 1904 , s 4
Neilson v Corsetti, Federal Court of Australia, Northrop J, 21 November 1997, unreported
Australian Electoral Commission v Hickson, Full Federal Court of Australia, 5 November 1997, unreported
Re Airline Hostesses' Association [1980] FCA 110; (1980) 48 FLR 214
Sherrif v Townsend [1980] FCA 35; (1980) 48 FLR 20
Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30
Re McJannet ex parte The Australian Workers Union of Employees, Queensland [1995] HCA 31; (1995) 184 CLR 620
Allen v Townsend [1977] FCA 10; (1977) 31 FLR 431
Imlach v Daley [1985] FCA 132; (1985) 7 FCR 457
Short v F W Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337.
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v ROBERT CLIVE FOHMSBEE, AMANDA PERKINS AND ROY KENNETH HILL
NG 57 OF 1998
NORTHROP, WILCOX AND MADGWICK JJ
SYDNEY
24 APRIL 1998 IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 57 of 1998
constituted by a single judge
|
BETWEEN: | AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Appellant |
|
AND: | ROBERT CLIVE FOHMSBEE, AMANDA PERKINS and ROY KENNETH HILL
Respondents |
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COURT: | northrop, wilcox and madgwick jj |
| DATE OF ORDER: | 24 APRIL 1998 |
| WHERE MADE: | sydney |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The order appealed from be set aside and in lieu thereof it is ordered that the motion by the second respondent, Ms Amanda Perkins, that the application for the inquiry be terminated on the ground that it did not constitute an inquiry under s 218 of the Workplace Relations Act 1996 be refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 57 of 1998 |
|
BETWEEN: | AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Appellant |
|
AND: | ROBERT CLIVE FOHMSBEE, AMANDA PERKINS and ROY KENNETH HILL
Respondents |
COURT:
NORTHROP, WILCOX and MADGWICK JJ DATE: 24 april 1998 PLACE: SYDNEY
NORTHROP J
This appeal raises two particular issues. The first issue involves the proper construction of Rule 49.14(a), and in particular sub-rule 14(a)(vi) of the Rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Organisation"). The second issue involves a consideration of whether a Regional Council constituted under Rule 49.14(a) of the Organisation is a collective body of a branch of an organisation that has power in relation to the management of the affairs of the branch.
The Organisation is registered under the Workplace Relations Act 1996 ("the Act") as an organisation of employees. One of the principal objects of the Act is to ensure that employee organisations registered under the Act "are representative of and accountable to their members, and are able to operate effectively"; see s 3(g) of the Act. Part IX of the Act is headed "REGISTERED ORGANISATIONS" and comprises sections 187A to 293. Section 187A provides that as well as the objects set out in s 3, Part IX has a number of objects including the object to encourage the democratic control of organisations and to encourage members of organisations to participate in the organisations' affairs. It is fair to say that the provisions contained in Part IX of the Act are designed to give effect to the relevant objects expressed in ss 3 and 187A of the Act. Further, in construing the provisions of the Act to any particular set of facts, the Court should attempt to give effect to the objects of the Act.
In conformity with the requirements of s 194, the Organisation has rules regulating its affairs. Section 195 contains provisions relating to rules of organisations. Paragraph 195(1)(b)(i) is of importance and is set out:-
"195 (1) The rules of an organisation:
(a) ......
(b) shall provide for:
(i) the powers and duties of the committees of the organisation and its branches, and the powers and duties of holders of offices in the organisation and its branches;
(ii) ......"
Subsection 195(4) provides that in s 195:-
"...... committee, in relation to an organisation or branch of an organisation, means a collective body of the organisation or branch that has powers of the kind mentioned in paragraph (b) of the definition of office in subsection 4(1)."
The definitions will be referred to later in these reasons.
Section 196 is of importance. In substance it provides that the rules of an organisation shall not be contrary to, or fail to make a provision required by, the Act. Section 208 provides for an easy and simplified procedure to enable a member of the organisation to apply to the Court to ensure compliance with s 196. There are many authorities on the nature of proceedings under s 208 and its relationship to s 209 and the types and effect of orders that can be made under those sections but the authorities need not be mentioned here.
Section 197 contains a number of provisions which must be included in the rules of an organisation. Thus, under subsection 197(1) the rules must provide for the election of the holder of each office in the organisation by a direct voting system or a collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system. The phrases "direct voting system", "collegiate electoral system" and "one-tier collegiate electoral system" are defined in s 4(1) of the Act. Reference will be made to this aspect later in these reasons. Sections 197, 198, 199 and 200 contain many other provisions relating to elections but these need not be referred to in detail. Under s 199, subject to certain exceptions not presently relevant, the rules must provide that the terms of office for officers in the organisation are no longer than 4 years without re-election.
Having regard to these statutory provisions, consideration can be given to the rules of the Organisation. The general structure of the rules of the Organisation were considered by Northrop J in Neilson v Corsetti, Federal Court of Australia, 21 November 1997, unreported. The judgment is a useful introduction to the present case. In substance the Organisation consists of a number of pre-existing organisations of employees amalgamating to form the one organisation. The structure adopted by the rules was to constitute each pre-existing organisation as a Division within the Organisation. Rule 1 is headed "NAME OBJECTS AND CONSTITUTION" and contains 9 sub-rules each of which appears to define those persons eligible to become members of the Organisation by being eligible to become a member of one of the Divisions. Rule 1.1H appears to include eligibility rules similar to the eligibility rules of the pre-existing organisation, the Printing and Kindred Industries Union ("the PKIU"). This is made clear by Rule 49 which is headed "SPECIAL ENABLING RULE - AMALGAMATION OF AFMEU AND PKIU". One of the objects of the Organisation, as contained in Rule 1.3, is to "organise and promote the interests of employees engaged in the printing and kindred industries".
Rule 2 of the rules of the Organisation is headed "ELECTIONS AND VOTING". The Rule is divided into 2 Parts being Part A and Part B. Part A provides procedures to be followed for the election of persons to "specified" offices within the union, being the Organisation. Among the persons to be elected pursuant to the procedures prescribed by Part A are "State Organisers". Rule 2, Part A.7 provides that each State Returning Officer must conduct an election "for each office of State Organiser". The rule contains detailed requirements for eligibility to be nominated for the office and the method of nomination and the time at which the election is to be conducted. The method of election is by a direct voting system within the meaning of the Act. In other words, for relevant purposes, the rule provides for a method of election at which "in relation to an election for an office in an organisation, means a method of election at which all financial members or all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office are, subject to reasonable provisions in relation to enrolment are eligible to vote". Note the wide range of groups of electors mentioned in this definition.
Part B of Rule 2 is headed "ELECTIONS AT STATE CONFERENCE". Part B relates to elections to specified offices by and from a committee of the Organisation. These provisions are typical of a collegiate electoral system as those words are defined in s 4(1) of the Act, namely:-
"collegiate electoral system, in relation to an election for an office in an organisation, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of:
(a) persons elected at the last preceding stage; or
(b) persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office;"
The position of "State Organisers" is not included in Part B of Rule 2.
Rule 49 of the rules of the Organisation contains the provisions of the rule the subject of this appeal. Rule 49 has the heading set out earlier in these reasons. Rule 49.1 provides, for relevant purposes, that the provisions of the Rule shall apply notwithstanding anything elsewhere contained in the Rules. Rule 49.4 constitutes the Printing Division in the Organisation which is to "consist of and to which shall be attached members of the Organisation (referred to in the Rules as "the Union") who:-
"(i) Were on the day immediately preceding the relevant date members of the PKIU;
(ii) Are eligible for membership of the Union and who are admitted to membership of the Union pursuant to the provisions of the sub-rule 1H of the Rules of the Union;
(iii) Are officers of the Union and who:-
A. were, on the day immediately preceding the relevant date, members of the PKIU; or
B. were, at the date of becoming officers of the Union, members of the Printing Division of the Union; or ......"
The word "attached" has been emphasised for the purposes of these reasons. This illustrates the correct terminology. The Division is not a corporation. The Organisation is. Members of the Organisation are "attached" to an identifiable group of members of the Organisation but do not include all the members of the Organisation. In this respect reference can be made to the definition of "direct voting system" and "financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office". Members of the Organisation attached to the Printing Division of the Organisation, have the entitlement to all the rights and privileges, duties and obligations flowing from the membership of the Organisation attached to the Printing Division.
Rule 49.4(c) provides for a further division of members of the Organisation attached to the Printing Division. The relevant provisions of Rule 49.4(c) provide:-
"(c) (i) For the purposes of these Rules, the membership of the Printing Division shall be divided into the following regions:-
A. ......
B. the New South Wales Region covering New South Wales the headquarters of which shall be located in Sydney;
......
C. ......
(ii) Members of the Printing Division shall be members of the Region in which they work."
Essentially, each Region is based on a State but Queensland and the Northern Territory are combined as one Region and the ACT constitutes a separate Region.
Rule 49.5 constitutes the Federal Conference of the Printing Division and identifies its membership. Under Rule 49.6, the Federal Conference of the Printing Division, subject to the Rules and decisions of the National Conference, National Council and National Administrative Committee, being collective groups having the general management and control of the Organisation, has "the management and control of the affairs of the Printing Division".
Rule 49.7 contains provisions for the meetings of the Federal Conference of the Printing Division. Rule 49.8 constitutes the Printing Division Executive Committee, identifies its members and voting powers of the members. It acts while the Federal Conference of the Printing Division is not in session. Rules 49.9, 49.10, 49.11, 49.12 contain provisions relating to the duties and powers of specified office holders. Rule 49.13 empowers the Federal Conference of the Printing Division, subject to the consent of the National Council, to determine the "number of National Industrial Officers" to be elected in accordance with the Rules of the Organisation and specifies their duties.
For the purposes of this appeal, Rule 49.14 is of vital importance. For relevant purposes, Rules 49.14(a), 49.14(b), 49.14(c) and 49.14(d) are set out in full:-
"14 (a) In each Region, there shall be constituted a Regional Council which shall consist of:-
(i) The Regional President - Printing Division;
(ii) Such number of Regional Vice-Presidents - Printing Division as may be determined by Regional Council;
(iii) The Regional Secretary - Printing Division;
(iv) In states other than Victoria - one Regional Assistant Secretary - Printing Division;
(v) In Victoria - subject to the provisions set out in Appendix A, two Assistant Secretaries - Printing Division;
(vi) In States other than Tasmania, such number of organizers as may be determined by Regional Council with the approval of the National Council; and
(vii) Such number of persons holding such positions on the Regional Council as may be determined by the Regional Council.
(b) For the purposes of sub-paragraph 14(a)(vii), the Regional Council may establish industry sections, permit sub-branches and chapels to elect persons to the Regional Council in proportion to the size of the industry section, sub-branch or chapel as the case may be.
(c) The Regional Council shall conduct and manage the business of the Printing Division within the Region.
(d) The Regional Council shall meet at least once each year and at such other times as may be necessary or required.
(e) ......"
Consistently with the structure of the Organisation and its Divisions, Rule 49.14(a) constitutes a group, or rather a sub-group, of members of the Organisation attached to the Printing Division of the Organisation. The sub-group relevant for present purposes consists of those members attached to the Printing Division whose work is within the Region of New South Wales. Similar provisions apply with respect to each Region.
Rules 49.15, 49.16, 49.17 and 49.18 prescribe the duties of the Regional President, the Regional Vice-Presidents, the Regional Secretary and the Regional Assistant Secretary/Secretaries of the Printing Division respectively. Rule 49.19 is set out:-
"19. State Organizers - Printing Division shall, in addition to the duties responsibilities and entitlements imposed on them under sub-rule 24.5, be responsible for the organization of the Printing Division of the Union in the Region and, subject to the powers of State Council and the State Secretary under sub-rule 24.3, carry out any directions given to them by the Regional Council or the Regional Secretary - Printing Division."
Rule 49.20 constitutes a Regional Executive Committee in each Region comprising specified officers and such number as "elected by and from the Regional Council as may be determined by the Regional Council". This latter is an illustration of a collegiate electoral system. The powers of the Regional Executive Committee are, when the Regional Council is not in session and subject to decisions of the National Conference, National Council, State Conference, State Council and Regional Council, to conduct and manage the business of the Printing Division within the relevant Region.
Rule 49.21 provides for general meetings of members of the Region and a decision of a general meeting is binding on the Regional Council and Regional Executive Committee. This latter provision is a further example of the democratic control of members of a group of the Organisation.
Parts A, B, C, D, E, F and G of Rule 49 contain provisions relating to the election of officers within the Regions of the Printing Division of the Organisation. Part A relates to the election of Federal President - Printing Division, Federal Secretary - Printing Division, Assistant Federal Secretary - Printing Division and National Industrial Officers - Printing Division. In some cases, elections are to be held every two years while in others, every four years. The elections are to be conducted in accordance with the provisions of Part A of Rule 2 of the Rules of the Organisation by a direct voting system.
Part B relates to the election of two Regional Secretaries to National Council and representative on National Administrative Committee. The election is pursuant to a collegiate electoral system in conformity with the provisions of Part B rule 25(b) and later rules.
Part C is headed "ELECTIONS FOR REGIONAL OFFICE HOLDERS". Under Part C, Rule 32 requires the State Returning Officer to conduct elections each year for the offices of Regional President - Printing Division, Regional Vice-Presidents - Printing Division and Regional Councillors and each four years for the offices of Regional Secretary - Printing Division, Regional Assistant Secretary/s - Printing Division and State Organisers - Printing Division. All these offices correspond to the positions on the Regional Council - Printing Division referred to in Rule 49.14(a). The elections are to be conducted by a direct voting system in accordance with the provisions of Part A of Rule 2 of the Rules. The rule then prescribes qualifications for persons seeking nomination to office. In relation to the position of State Organizers, the candidates must have been a member of the Organisation for a continuous period of not less than 3 years immediately preceding the closing date for lodging nominations. It is not necessary to refer to the other qualifications required. All members of the Organisation attached to the appropriate Region of the Printing Division are, subject to conditions not relevantly relevant, entitled to vote at any ballot for the offices to be filled.
Parts D, E, F and G regulate the conduct of elections to other offices within the Regions of the Printing Division. Some are pursuant to a direct voting system and some are pursuant to a collegiate electoral system.
Persons elected to an office under the direct voting system provisions of Part A of Rule 2 take up their office on 1 January or 1 July, whichever sooner occurs, after the declaration of the result of the election and normally hold office until the election of a successor - see Rule 2 Part A.11(y). This provision applies to the election of a State Organiser Regional Council - Printing Division.
This long precis of part of the very convoluted and lengthy rules of the Organisation has been necessary as the foundation for understanding the two issues stated at the beginning of these reasons. Reference must now be made to the facts giving rise to those issues.
In the latter part of the year 1997 elections were due to be held within a number of the Divisions of the Organisation. At the hearing of the appeal, the respondent Roy Kenneth Hill, the returning officer appointed to conduct the elections, tendered in evidence without objection by the other parties, copies of formal documents relating to the elections. By a decision of a Deputy Industrial Registrar dated 4 August 1997 stating that he was satisfied that elections for the specified offices were required to be held under the rules of the Organisation and subsection 214(2) of the Act he requested the Australian Electoral Commission to conduct the elections. The offices referred to in the decision included the following:-
"Printing Division
Regional Secretary to National Council (2)
Representative on National Administrative Committee
New South Wales
Regional President
Regional Vice-President (2)
Regional Secretary
Regional Assistant Secretary
State Organiser (4)
Regional Councillor representing Compositors (5) (1 only to be from newspapers)
Regional Councillor representing Graphic Reproducers (including artists) (3)
Regional Councillor representing Printing Machinists (6) (1 only to be from newspapers)
Regional Councillor representing Bookbinders (2)
Regional Councillor representing Publishers (1)
Regional Councillor representing Box & Carton & Corrugated (4)
Regional Councillor representing Other Classifications (12)
Delegate to Federal Conference of Printing Division/Printing Division Delegate to National Conference (3)"
Attention is directed to the offices "Regional Vice-President (2)", "State Organiser (4)" and the group of Regional Councillors which comprise 33 persons to be elected. The Regional Councillors were to be elected for a term of one year.
The provisions of Division 4 of Part IX of the Act, comprising sections 210 to 217 apply to the conduct of elections for office within an organisation or branch. The sections refer to `an organisation or branch of an organisation'. The nature of the provisions are discussed in Australian Electoral Commission v Hickson (unreported Full Federal Court, 5 November 1997). In conformity with these provisions, Mr Hill gave notice of the elections including the elections to the offices in the Printing Division, New South Wales Region, as set out in the decision of the Deputy Industrial Registrar. The notices specified the dates nominations closed and that if a ballot was required the date of the ballot which was to close at 10.00 am on 19 November 1997.
Four nominations only were received by Mr Hill for the positions of State Organiser (4) of the New South Wales Region - Printing Division. Accordingly no ballot was required and on 22 September 1997 Mr Hill declared those four persons had each been elected to the office of State Organiser, New South Wales Regional Council - Printing Division. The period of office was for a term of four years commencing 1 January 1998. The respondent Amanda Perkins was one of the four persons so declared to be elected.
The statement in the preceding paragraph that each of the four persons had been elected to the office of State Organiser, New South Wales Regional Council - Printing Division is the only conclusion that can be drawn from the facts before the Court. The actual declaration made by Mr Hill is not in evidence before the Court. Among the facts relied upon to support the application for the inquiry and verified by the statutory declaration of Mr Fohmsbee, it is stated that on 22 September 1997, the returning officer determined that the nomination by Ms Perkins was valid and declared the ballot, declaring her to have been elected to the position of organiser. There are difficulties in accepting this statement as accurate since, in particular, here four nominations for organiser only had been received with the result that a ballot was not required. The election was being conducted for the positions specified in Rule 49.14(a) of the New South Wales Regional Council - Printing Division. The election was being conducted in accordance with the provisions of Part A of Rule 2; see Rule 49 Part C-33. For present purposes, the relevant rule of Part A of Rule 2 is Part A-11 which, relevantly, provides that where, at the expiration of the closing date for lodging nominations only one candidate (here there were four nominations for four positions) is nominated for the election to the office the Returning Officer shall declare that candidate elected unopposed to the office by issuing a statement in writing to the appropriate Council. Rule 2 Part A-11 then contains provisions for the holding of a ballot where there is more than one nomination for the position. In the present case, no ballot was required.
In all the circumstances, the declaration had the effect of declaring Ms Perkins, and the other three State Organisers, elected to the office of State Organiser, New South Wales Regional Council - Printing Division. There is nothing unusual in this result.
As members of the Regional Council, the organisers participate in the deliberations of the Regional Council in the conduct and management of the business of the Printing Division within New South Wales. In this regard they have the same powers and obligations as each member of the Regional Council. In addition, they have been elected to the Regional Council in the capacity of State Organisers. In accordance with the Act and the Rules, additional duties have been imposed upon them by Rule 49.19. In this regard, the State Organisers are in no different position to persons elected to the Regional Council as Regional President, Regional Vice-President, Regional Secretary, and Regional Assistant Secretary. Each of the persons elected to each of those positions on the Regional Council, in addition to their powers and obligations arising from being a member of the Regional Council has additional duties and powers imposed on them by reason of the capacity in which each was elected; see Rules 49.15, 49.16, 49.17 and 49.18 respectively. It would be inconceivable to conclude that persons elected to each of those positions was not a member of the Regional Council. In this regard, State Organisers should not be treated differently.
Division 5 of Part IX, comprising sections 218 to 226 of the Act contains provisions relating to inquiries into elections. These provisions are discussed in Hickson. On 28 October 1997 the respondent Robert Clive Fohmsbee made application under s 218 for an inquiry into the election. Mr Fohmsbee is a member of the Organisation. He claimed that Ms Perkins was not qualified to nominate for the position Sate Organiser New South Wales Region - Printing Division. The relevant provisions of s 218 are:-
"Where a person who is ...... a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Court into the matter."
The application came before the Court constituted by Branson J. In conformity with the Act her Honour decided to proceed with the inquiry and directed that Ms Perkins, Mr Hill and the Organisation be given notice of the inquiry. At the inquiry each was represented by counsel. The parties claimed the inquiry was urgent. The inquiry was heard on 12 December 1997. Thereafter written submissions were made pursuant to leave granted. Her Honour gave judgment on 19 December 1997. It is unfortunate that the inquiry was conducted under the stress of time constraints. It is unfortunate the parties did not present a full summary of the relevant rules of the Organisation. Counsel for Ms Perkins claimed that the inquiry was incompetent and moved the Court that it be terminated even though the evidence relating to the qualification of Ms Perkins had been given. The submissions in support of the motion that the inquiry be terminated were not based on a proper analysis of the rules of the Organisation. In the result, her Honour terminated the inquiry without deciding whether there had been any irregularity in the conduct of the election; compare s 223(5) of the Act. The Organisation has appealed from the order of the Court terminating the inquiry.
The essence of the successful argument before her Honour can be stated.
Counsel contended there was no valid application for an inquiry before the Court. This contention depended upon the construction and application of s 218 of the Act and in particular the words "an election for an office in the organisation or a branch of the organisation". Counsel contended that the position of State Organiser within the New South Wales Regional Council - Printing Division was not an office within the meaning of the word contained in s 218 and as defined in s 4(1) of the Act. It was submitted further that if the position was an office as so defined, it was not an office in the Organisation or a Branch of the Organisation.
Under s 4(1) of the Act, unless the contrary intention appears, and there is no contrary intention applicable here, the word "office", for relevant purposes, is defined:-
"...... in relation to an organisation or branch of an organisation, means:
(a) an office of president, vice-president, secretary or assistant secretary of the organisation or branch;
(b) the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:
(i) the management of the affairs of the organisation or branch;
(ii) the determination of policy for the organisation or branch;
(iii) the making, alteration or rescission of rules of the organisation or branch;
(iv) the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules;
......"
In the same subsection the word "officer" in relation to an organisation or branch of an organisation, is defined to mean a person who holds an office in the organisation or branch.
Before considering these contentions, some general observations should be made. The position of an organiser, of itself, does not come within the definition of an "officer" contained in s 4(1) of the Act. Normally it would be expected that an organiser is a paid employee and may well be an officer of the organisation within the normal meaning of that word but not necessarily within the defined meaning.
A person may be appointed to the position of organiser and as such would be in no different legal relationship with the organisation than any other employee of the organisation.
Another possibility is that the rules of an organisation could provide that an organiser is to be elected to that position by all members of the organisation, division or region as the case may be. In these circumstances, this, of itself, would not make the position of elected organiser, an office within the defined meaning.
Another possibility is that the rules could provide that the position of organiser is to be filled by election and that an elected organiser is to be a member of a collective body of the organisation. Authority of the Federal Court suggests that provisions of this kind comply with the provisions of s 195 of the Act; see Re Airline Hostesses' Association [1980] FCA 110; (1980) 48 FLR 214 per Bowen CJ commencing at 215, J B Sweeney J commencing at 248, Evatt J commencing at 259 and Northrop J commencing at 261. In the latter reason, reference should be made to what was said by Northrop J in Sherrif v Townsend [1980] FCA 35; (1980) 48 FLR 20 commencing at 46. There is much of importance contained in these reasons which is of interest in understanding the issues before the Court. Smithers J dissented in Airline Hostesses' Association. That was a case where a person elected to an office became, ex officio a member of a collective body without facing a second election. That is not the case here but the rules of the Organisation do contain some provisions of this kind, see for example the reasons in Neilson v Corsetti and Rule 5.1, membership of National Council, Rule 21.1, membership of State Council, Rule 49.8(a) membership of the Printing Division Executive Committee and Regional Executive Committee, Rule 49.20(a).
In the present case, the election is to a collective body of, among others, "such number of organisers as may be determined by Regional Council with the approval of the National Council". This does not involve an ex officio position for an organiser. It is a direct election of persons who, on election, become members of the Regional Council and in addition, are required to perform the duties of an organiser.
The two issues raised here by counsel for Ms Perkins are that the rules do not specify the number of organisers, and that a two-step procedure is required, first the election of organisers then an election or appointment of some of those organisers to the Regional Council.
If this contention is correct, it would follow that despite the declaration of Mr Hill that Ms Perkins has been elected to the New South Wales Regional Council - Printing Division she cannot take up that office until something further is done. This would come as a surprise to Ms Perkins.
The acceptance of this contention could have the effect of adversely affecting the election of Regional Vice-Presidents - Printing Division and Regional Councillors being those positions referred to in Rule 49.14(a)(ii) and (vii) respectively.
The second contention is that the New South Wales Printing Division is not an organisation or branch within the meaning of the definition of "office" in the Act and therefore an election inquiry cannot be conducted under s 218 of the Act. The acceptance of this contention could have the effect that no inquiry could be conducted into the election of any of the persons elected to the Regional Council under Rule 49.14.
The resolution of the first contention depends upon the proper construction of Rule 49.14. The decision of the Deputy Industrial Registrar requiring the Australian Electoral Commission to conduct elections including the election to offices within the New South Wales Region, together with reference to Rule 49.14(a)(ii) make it clear that an election is to be held for the positions on the New South Wales Regional Council - Printing Division. This is supported by reference to the notice calling for nominations to the positions. These documents make it clear that 4 organisers are to be elected as well as 2 Regional Vice-Presidents and 33 Regional Councillors. No one has alleged that this calling of nominations constitutes an irregularity. The election is for 4 organisers who upon election become members of the Regional Council.
Logically, on the proper construction of Rule 49.14(a)(vi), it would be expected that the number of persons to be elected would have been determined under that sub-rule before the election commenced. Otherwise, it would be impossible to know how many persons were to be elected. The position would be the same under sub-rules 14(a)(ii) and (vii). In each case, the relevant rule provides for the election to a Regional Council of "such number ..... as may be determined by Regional Council", "such number ...... as may be determined by Regional Council with the approval of the National Council" and "such number ...... as may be determined by the Regional Council" respectively. Until these numbers had been determined, it would be impossible to conduct an election. It would be impracticable and possibly in contravention of the Act, if the elections were to be for an unidentified number of positions, the specified number of persons to be then elected or appointed to the Regional Council by some other group. The Rules do not make provision for such a convoluted and uncertain procedure.
On its proper construction, Rule 49.14(a)(vi) is to be interpreted as meaning the number of organisers to be elected is to be determined before the commencement of the election. One election only is to be conducted and the persons elected to the Regional Council are elected to that position in the capacity of a State Organiser.
During the hearing of the appeal, it was suggested that there was no evidence that the number of organisers had been determined in conformity with the sub-rule. It should be noted that no person has suggested that there is an irregularity based on the absence of any such determination. The matter is not in issue. The presumption of regularity applies.
Submissions were made by counsel for Ms Perkins based on Rule 49.19 and Rule 24.5. Rule 49.19 has been set out earlier in these reasons. It appears in the context of rules prescribing the duties of the Regional President, the Regional Vice-Presidents, the Regional Secretaries and the Regional Assistant Secretary/Secretaries of the Printing Division respectively. Logically Rule 49.19 sets out the duties of State Organisers - Printing Division. Rule 22.4 provides that the State Council has power to supervise and direct all work of all full-time officers, district committees and other committees of the Organisation established in the State. Rule 24 prescribes the duties of State officials. Rule 24.5, which is referred to in Rule 49.19 is set out:-
"5. STATE ORGANISERS
State Organisers shall be responsible for the general organising of the Union in the State. They shall carry out such other organising duties as are allocated to them by the State Council and shall be responsible to the State Secretary.
The State Organisers shall be entitled to attend other meetings of members and shall have the right to speak at all such meetings, provided however, that they shall have the right to move and second motions and vote only at bodies within the Union to which they have been duly elected in accordance with these Rules."
These provisions illustrate the interlocking nature of the collective bodies and paid officials of the Organisation. It can be inferred that the State Organisers are paid officials. At the same time they are members of the New South Wales Regional Council - Printing Division. Of necessity, the powers of this Council extend to the whole of the State of New South Wales. Rule 24.5 prescribes the broad duties of State Organisers in their capacity as employees of the Organisation. In addition to the powers conferred upon State Organisers as being members of the Regional Council, State Organisers have the right to attend meetings of members of the Organisation within the State, to speak but not to vote. These rules do not support the contentions of counsel for Ms Perkins.
In further support of contentions that State Organisers were not, by reason of an election to positions identified in Rule 49.14, officers within the meaning of the definition of "officer" under the Act, counsel referred to the provisions of the Rules of the Organisation providing for State structures. A summary of these provisions are contained in Neilson v Corsetti. In order to understand the Organisation, it is necessary to understand the structures created by the Rules of the Organisation. The Rules provide for the amalgamation of what, essentially, were a number of separate unions which, previously, were organisations in their own right. Each of these former organisations, but following the amalgamation more properly described as groups within the Organisation, is described in the Rules of the Organisation as a Division. The structures provide for a National Conference in which is entrusted the government of the Organisation; see Rule 3. National Conference is the supreme governing body of the Organisation; see Rule 4. The National Conference consists of the National Council and the occupiers of other offices; see Rule 3.2 and members from all Divisions of the Organisation have a part in electing persons to National Conference. Rule 5 contains provisions relating to the National Council. Its powers are set out in Rule 6. It is the committee of management for the whole of the Organisation.
Rule 19 constitutes the State Conference. This conference is in many ways similar to the National Conference but limited essentially to members of the Organisation within each Division in each State. Its membership comprises members from all Divisions. Under Rule 20, each State Conference has wide powers, subject to National Conference and National Council, to manage the affairs of the Organisation within the State with respect to all members of the Organisation within the State. Its powers extend across the boundaries of the various Divisions of the Organisation. Rule 21 constitutes State Councils within each State. Each State Council consists of members of the Organisation within the State and from each Division within the State. Rule 22 provides for the powers of each State Council. Broadly speaking, each State Council serves the purpose of an executive body of the State Conference in the State concerned; see Rule 22.2. To a large extent a State Council controls the finances of the Organisation within its State area. Each State Council is required to supervise and direct the work of all full-time officers, District Committees and other committees of the Organisation established in the State; see Rule 22.4.
Rule 23 lists the State Officials of the Organisation. Rule 23.1(b) provides that each State may have as State officials "such number of State organisers as may be determined ...... by the State Conference subject to the approval of National Council and/or Conference". Rule 23.2 provides that for the purpose of electing State Organisers, electoral divisions are created with respect to each Division. Rule 23.2(d) provides for "a Printing Division electoral division comprised of members attached to the Printing Division". It is apparent that State Organisers exist in each Division of the State. It is not surprising that Rule 24 prescribes the duties of State Officials. Reference is made to State Organisers by Rule 24.5, which rule is set out earlier in these reasons.
Within this framework, Rule 49 takes a logical place. This rule creates the Printing Division of the Organisation and contains provisions relating to elections with respect to each of the appropriate collective bodies of the National structure and the State structures within the Printing Division. In addition it contains provisions with respect to members of the Organisation attached to the Printing Division within each State. Rule 49.14 constitutes a Regional Council in each Region (viz State) the members of which are elected by members attached to the Printing Division within the appropriate Region. Each Region consists of that group of members of the Organisation coming within the eligibility provision of Rule 1.1H, the PKIU provision, and working within the relevant Region (viz State). In this context, it is logical that the number of members of the Regional Council comprising organisers is to be determined by the Regional Council with the approval of National Council. This merely acknowledges the interlocking nature of the structures of the Organisation. Similarly, Rule 49.19 illustrates the same approach.
The State Council and State Secretary have powers with respect to State Organisers which powers extend to each Division of the Organisation within each State. State Organisers elected under Rule 49.14(a)(vi) have primary duties as State Organisers within their Region of the Printing Division but at the same time are subject to the appropriate directions of the appropriate State Council and State officials.
The provisions of the Rules of the Organisation with respect to the State Council do not detract from the election of organisers under Rule 49.14(a) to membership of the Regional Council.
The first contention of counsel for Ms Perkins is rejected.
The second contention is based on the proposition that the New South Wales Region - Printing Division is not an organisation or branch within the meaning of the definition of "office" contained in the Act and therefore the inquiry cannot be brought under s 218 of the Act.
It is accepted that the word "branch" is not used in the Rules of the Organisation to describe the Division or a Region of the Printing Division. The concept of a branch of an organisation was clarified in 1959 by the High Court in Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30. Earlier authorities and later authorities which do not accept the views expressed in Williams v Hursey should not be followed. Despite the clear exposition of the concept in that case, misconceptions as to the nature of a branch continued. The High Court drew attention to this misconception as recently as 1995; see Re McJannet ex parte The Australian Workers' Union of Employees, Queensland [1995] HCA 31; (1995) 184 CLR 620. There, commencing at 639, Brennan CJ, Deane and Dawson JJ drew attention to the misconception arising from the description of a branch of an organisation as being an entity distant from its members. Their Honours give a warning at 639-640 (footnotes omitted):-
"The terms "association" or "union" connote a relationship among persons "associated" or "united" for a common purpose or to share a common interest. These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality. Of course, when the law governs a relationship among persons, its operation (and sometimes its expression) may be mistaken for a law which prescribes the capacities of an artificial person. Thus we may speak of the assets and liabilities of a partnership, though legal personality is an attribute only of the members of the partnership, not of the partnership. The term "partnership" connotes the relationship between the partners, not an entity different from them. Pollock observes that "[i]n the case of an ordinary partnership the firm is treated by mercantile usage as an artificial person, though not recognised as such by English law; and other voluntary and unincorporated associations are constantly treated as artificial persons in the language and transactions of everyday life". Unless the references of ordinary speech and the legal conception of a corporation are distinguished, confusion arises as to the meaning of terms such as "association" or "union". When the Queensland Act provided for the registration and consequent incorporation of "any industrial association or trade union of employees", it authorised registration to be effected when there were a number of persons associated or united for an industrial purpose or to share an industrial interest."
Then at 641-642 their Honours come back to this misconception which had not disappeared and illustrate its acceptance by the majority of the Full Court of the Federal Court in McJannet (1994) 48 FCR 453 and in a number of decisions of the Court. The true position as contrasted with the misconception is made clear by the following passage from their Honours' reasons at 640-641 (footnotes omitted):-
"A branch of a federal industrial organisation is not a person; it has no existence apart from that of the members of the branch. The word "branch" in that context is no more than a collective noun which, although singular in form, is used with a plural implication. That was made clear in Williams v Hursey by Fullagar J, with whom Dixon CJ and Kitto J agreed, when he pointed out that a branch of a federally registered organisation has no corporate character and no separate existence as a juristic person. He said of the Hobart branch of the Waterside Workers' Federation of Australia that it:
"is not an `unincorporated society, fellowship, club or association'. It has no separate identity - no existence apart from the registered organisation, of which it is an integral and inseparable part. Its members are merely a section of the total membership of the federation - locally organised for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation."
There was an obvious convenience in the members of a federal organisation in a State - a State branch - becoming registered under the industrial laws of the State in order to derive the advantages which flowed from State registration. The State registered organisation was better placed to participate in the State system of industrial regulation and to pursue improved terms and conditions for its members without any requirement that they be involved in an interstate industrial dispute. But considerable confusion arose from speaking of the registration as the registration of the State branch of a federal organisation. The confusion arose because, in so speaking, the misconception which was laid to rest in Williams v Hursey was resurrected, namely, the misconception that the use of the term "branch" in relation to a federal organisation signifies an entity with an existence apart from its members rather than merely identifying those members collectively."
It is not necessary to refer to the many other authorities of the Federal Court of Australia where the same concept has been discussed. The legal position is clear.
In the present case the words "branch of an organisation" contained in the definition of "office" in the Act is used in the sense of a collective noun which although singular in form is used with a plural implication. The word "branch" is not used as identifying an entity or body. It is used to describe a group of members of an organisation which under the rules of the organisation or other lawful authority are formed together for the better management of the affairs and objects of the organisation within the bounds of the authority conferred upon that group. There is much of interest in the development of this concept in the judgment of Smithers J in Allen v Townsend [1977] FCA 10; (1977) 31 FLR 431 at 437 to 441. The position is encapsulated in a passage at 440-441:-
"It is relevant to observe that in the way the members of the branch who are also members of the federation are joined together they are at once in a legal relationship with all the members of the organisation but also in a legal relationship with each other and that latter relationship is different and separate from the relationship that they have with the members of the organization generally. In their relationship to each other as members of the branch they constitute a group empowered by the rules to govern and discipline themselves by the provisions of their own set of branch rules and to take steps to promote the objects of the federation.
It is to be observed also that in any discussion of this subject, reference to conduct, as being conduct "of the branch" or "its" conduct is commonplace. This nomenclature reflects the reality that within the organization and as an agency thereof the group of members in the branch has a capacity as such to conduct business affairs of the federation.
The capacity of the branch to operate as an instrument of the federation, both in administering its affairs and in engaging in conduct of various but well-known kinds, including activity in business affairs to promote the interests of its members and the federation, is not to be doubted.
There is a large measure of control in federal council of branch policy and action. But the existence of the branch and its power and duty, subject to the rules, to conduct affairs designed to promote the objects of the federation are essential features of the federation as established by the rules."
With the necessary adaptation of Organisation and New South Wales Region - Printing Division, this passage has application to the facts of this case.
As a reminder, the boundaries of a "branch" may be defined by reference to area, occupations, industries or a combination of all of these - see Imlach v Daley [1985] FCA 132; (1985) 7 FCR 457 per Evatt and Northrop JJ at 462-463.
There is no doubt that the New South Wales Regional Council - Printing Division is a collective body consisting of persons elected by the financial members of the Organisation attached to the New South Wales Region of the Organisation in conformity with the Rules of the Organisation and as required by s 195(1)(b) of the Act. The Regional Council has powers of the kind mentioned in paragraph (b) of the definition of "office" in subsection 4(1) of the Act; compare s 195(4) of the Act. The Regional Council, under Rule 49.14(c) has the obligation, including the power, to conduct and manage the business of the Printing Division within the Region of the State of New South Wales. This power comes within the function specified in paragraph (b)(i) of the definition of "office" in subsection 4(1) of the Act, namely the management of the affairs of the organisation or branch. In conformity with the legal position expressed in McJannet by Brennan CJ, Deane and Dawson JJ set out earlier in these reasons, the New South Wales Region - Printing Division comprises that group of members of the Organisation coming within the relevant eligibility rule relating to the Printing Industry, Rule 1.1H, and working in the State of New South Wales. Although this group of members is not described in the Rules of the Organisation as a branch of the Organisation, it is a branch within the normal meaning of that word.
In the Act and in particular in s 195(1)(b), s 195(4) and in the definition of the word "office", the word "branch" has no defined meaning limiting the normal meaning of the word. Misconceptions of the meaning of the word "branch" should not be permitted to restrict or limit the true meaning of that word as "a collective noun which, although singular in form, is used with a plural implication". The New South Wales Region - Printing Division, is a branch of the Organisation.
The second contention of counsel for Ms Perkins is rejected.
In these circumstances, it is not necessary to determine whether the New South Wales Region - Printing Division, is a collective body of the Organisation. In common usage, each collective body within an organisation may be a collective body of the organisation. In this regard, attention was drawn to the earlier provisions of the Conciliation and Arbitration Act 1904 where the corresponding provision made reference to "every office within the organization or branch"; see paragraph (d) of the definition of "office" in s 4(1) of that Act. However, having regard to the consistent use in the Act of the phrase "organisation or branch" there is much to be said for the view that a committee or collective body of an organisation should be limited to those committees or collective bodies having powers of management over the affairs of all members of the organisation while a committee or collective body of a branch refers to those committees or collective bodies having powers of management over the affairs of a limited group of members of the organisation coming within what constitutes a branch of the Organisation within the proper meaning of the word branch. However, no final opinion is expressed on this matter.
For the reasons expressed, the application of an inquiry instituted by Mr Fohmsbee is an application for an inquiry within s 218 of the Act. It should not have been terminated for the reasons expressed by the Court conducting the inquiry.
Accordingly, the appeal should be allowed, the order appealed from should be set aside and in lieu thereof it should be ordered that the motion by Ms Perkins that the application for the inquiry be terminated on the ground that it did not constitute an inquiry under s 218 of the Act be refused. The effect of these orders is that the inquiry remains before the Court which should proceed to conduct the inquiry as speedily as practicable.
|
I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable
Justice R M Northrop |
Associate:
Dated: 24 April 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG57 of 1998 |
|
BETWEEN: | AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION
Appellant |
|
AND: | ROBERT CLIVE FOHMSBEE
First respondent
AMANDA PERKINS Second respondent
ROY KENNETH HILL Third respondent |
JUDGEs:
northrop, WILCOX and madgwick jJ DATE: 24 april 1998 PLACE: SYDNEY
The statutory and rule provisions
Section 4(1) of the Workplace Relations Act defines the word "office", for the purposes of the Act and subject to any contrary intention, as follows:
"office, in relation to an organisation or branch of an organisation, means:
(a) an office of president, vice-president, secretary or assistant secretary of the organisation or branch;
(b) the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:
(i) the management of the affairs of the organisation or branch;
(ii) the determination of policy for the organisation or branch;
(iii) the making, alteration or rescission of rules of the organisation or branch;
(iv) the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules;
(c) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:
(i) existing policy of the organisation or branch; or
(ii) decisions concerning the organisation or branch;
(d) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or
(e) the office of a person holding (whether as trustee or otherwise) property:
(i) of the organisation or branch; or
(ii) in which the organisation or branch has a beneficial interest;"
The parties agree the definition applies to the word "office", where used in s 218; no contrary intention is expressed. The question, then, is whether the position to which the second respondent, Amanda Perkins, was declared elected falls within the definition. In turn, having regard to the common ground, this depends on two questions: first, whether that position is an "office of a voting member of a collective body"; second, if so, whether the relevant body is "a collective body of the organisation or branch". Both these questions turn on interpretation of the AFMEPKIU rules.
Rule 23 of the AFMEPKIU rules relates to State officials. It includes sub-rule 1(b) which reads:
"(b) Each State may have as State officials such number of State organisers as may be determined from time to time by the State Conference subject to the approval of National Council and/or Conference."
Sub-rule 2 provides that, "(f)or the purposes of electing State Organisers in States other than Tasmania, the following electoral divisions shall be created:
"(d) In each state - a Printing Division electoral division comprised of members attached to the Printing Division;"
Ms Perkins was elected a State Organiser (New South Wales) in the Printing Division.
Rule 24 specifies the duties of State officials. In relation to State Organisers, it provides:
"5. STATE ORGANISERS
State Organisers shall be responsible for the general organising of the Union in the State. They shall carry out such other organising duties as are allocated to them by the State Council and shall be responsible to the State Secretary.
The State Organisers shall be entitled to attend other meetings of members and shall have the right to speak at all such meetings, provided however, that they shall have the right to move and second motions and vote only at bodies within the Union to which they have been duly elected in accordance with these Rules."
While this sub-rule permits State Organisers to attend and address union meetings, including meetings of collective bodies exercising functions specified in sub-para (b)(i) to (iv) of the definition of office, it does not confer on them any right of voting membership of such bodies. If it is to be concluded that the office of State Organiser is an "officer of a voting member of a collective body" of AFMEPKIU, this must be because of some other provision.
The provision relied on by counsel for AFMEPKIU and counsel for the first respondent, Robert Clive Fohmsbee, the applicant for the election inquiry, is sub-rule 14(a)(vi) of rule 49. Rule 49 is headed "Special Enabling Rule - Amalgamation of AFMEU and PKIU"; it was apparently added at the time of that amalgamation. Its primary purpose seems to have been the creation of a Printing Division of the organisation and the specification of rules for management of that Division. Sub-rule 14 reads:
"14(a) In each Region, there shall be constituted a Regional Council which shall consist of:-
(i) The Regional President - Printing Division;
(ii) Such number of Regional Vice-Presidents - Printing Division as may be determined by Regional Council;
(iii) The Regional Secretary - Printing Division;
(iv) In states other than Victoria - one Regional Assistant Secretary - Printing Division;
(v) In Victoria - subject to the provisions set out in Appendix A, two Assistant Secretaries - Printing Division;
(vi) In States other than Tasmania, such number of organizers as may be determined by Regional Council with the approval of the National Council; and
(vii) Such number of persons holding such positions on the Regional Council as may be determined by the Regional Council.
(b) For the purposes of sub-paragraph 14(a)(vii), the Regional Council may establish industry sections, permit sub-branches and chapels to elect persons to the Regional Council in proportion to the size of the industry section, sub-branch or chapel as the case may be.
(c) The Regional Council shall conduct and manage the business of the Printing Division within the Region.
(d) The Regional Council shall meet at least once each year and at such other times as may be necessary or required.
(e) A quorum for a meeting of the Regional Council shall be 40% of the members of the Regional Council unless otherwise determined by the Regional Council by a two-thirds majority of members voting.
(f) (i) A meeting of the Regional Council may be convened by -
A. the Regional Executive Committee;
B. a meeting of the Regional Council; or
C. the Regional Secretary to conduct urgent business.
(ii) A meeting of the Regional Council must be convened by the Regional Secretary on receipt of a request from 50% plus one of the members of the Regional Council."
The areas included in each Region are specified by sub-rule 4(c) of rule 49; they coincide with the areas of the various Australian States and Territories, except that the Northern Territory is included in the Queensland Region.
Sub-rules 32 and 33 of rule 49 relate to elections for regional office holders. It is unnecessary to set out sub-rule 33, which specifies procedural requirements, but sub-rule 32 is important. It reads:
"32. Each State Returning Officer shall conduct an election for the offices of: -
(a) Regional President - Printing Division, Regional Vice-Presidents - Printing Division and Regional Councillors or equivalent position - each year; and
(b) For the offices of Regional Secretary - Printing Division, Regional Assistant Secretary/s - Printing Division and State Organizers - Printing Division - each 4 years."
The primary decision
In her reasons for upholding Ms Perkins' claim that the Court lacked jurisdiction to undertake an inquiry into the regularity of her election, the learned primary Judge (Branson J) said the "crucial issue" for determination of that claim was:
"whether the office of `State Organizer - Printing Division' referred to in subrule 49.32 of the Rules is an `office' of an organisation or of a branch of an organisation within the meaning of the definition of `office' contained in s 4(1) of the Act. It is accepted that it is only paragraph (b) of such definition that needs be considered in this case."
In determining that matter, Branson J first considered whether the New South Wales Region of the Printing Division could properly be described as a "branch" of AFMEPKIU. She answered that question in the negative. Her Honour also ruled the Regional Council of the New South Wales Region of the Printing Division was not a "collective body of the organisation" itself. Having come to those conclusions, her Honour found it unnecessary to consider whether the position to which Ms Perkins was elected was an office of a voting member of a collective body.
In my opinion the last-mentioned question must be answered in the negative; consequently, it is unnecessary to reach a concluded view about the earlier issues. However, respectfully differing from Branson J, I see no reason to doubt that the New South Wales Region of the Printing Division constitutes a "branch" of AFMEPKIU. As Branson J pointed out, the term "branch" is not defined in the Act. A branch of an industrial organisation is simply a section of the total membership of the organisation, locally organised, under the organisation's rules, for the sake of convenience: see Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 55, per Fullagar J. There is no magic in the title "branch". I see no reason why a locally organised section of the membership, even that part of the membership that follows callings falling within the ambit of a particular Division of the organisation, resident within a geographic area called a "Region", cannot properly be described as a "branch" of the organisation for the purposes of the definition of "office". That definition should not be narrowly construed. As this case demonstrates, the definition is critical to the Court's ability to inquire into allegedly irregular elections. It is also critical to the application of Division 4 of Part IX of the Workplace Relations Act, dealing with the conduct of elections. So far as is possible, determination of the important question whether a particular entity constitutes a "branch" of an organisation ought not be allowed to depend upon matters of degree upon which opinions may readily differ, such as the entity's degree of independent governance and management of its financial affairs.
Office of a voting member of a collective body
As counsel for AFMEPKIU contend, sub-rule 14(a) of Rule 49 concerns the constitution of the Regional Council; it is not a rule about election of organisers in the Printing Division of the organisation. The sub-rule provides for some ex officio members of the Regional Council (sub-paras (i), (iii), (iv) and (v)) and it envisages the selection of other members from persons who hold a particular position (sub-paras (ii) and (vi)) and the election of other members (sub-para (vii)). The sub-rule does not itself indicate how the selection and election processes are to be performed. Contrary to submissions put by counsel for AFMEPKIU and counsel for Mr Fohmsbee, sub-para (vi) cannot be construed to say that all State Organisers in the Printing Division are to be members of Regional Council. Such a construction would ignore the sub-paragraph's clear requirements for a determination by Regional Council of the number of organisers who will sit on Regional Council and the approval of that decision by the National Council. The sub-paragraph clearly envisages the possibility that not all State Organisers in the Printing Division will be members of their relevant Regional Council.
As I have mentioned, sub-clause 32 deals with elections for regional officers, including Regional Councillors. Counsel submitted this provision extended only to the persons mentioned in sub-para (vii) of sub-clause 14(a). I see no warrant for that limitation. Once it be accepted that not all State Organisers (and not all Regional Vice-Presidents, for that matter) will necessarily be members of Regional Council, some selection procedure is necessary. It seems sensible to use the annual elections for State offices for that purpose. The rules are sparse and unclear, but they may reasonably be construed as envisaging a decision by each outgoing Regional Council as to the number of State Organisers who will serve on the incoming Regional Council, approval of that decision by National Council and election of the relevant number of State Organisers at the forthcoming State elections. On this analysis, the election that is critical to the question whether a particular person becomes a member of Regional Council under sub-clause 14(a)(vi) is not that person's election as a State Organiser but the person's success in an election under sub-rule 32(a) for the position of Regional Councillor. The former election merely qualifies the person to be a candidate in the second election. An analogy may be made with the Parliamentary sphere. The success of a particular person in an election for a Parliamentary seat is a necessary prerequisite for election to the office of leader of his or her party but it does not itself amount to election to that office. In the same way, election as a New South Wales State Organiser is a prerequisite to election to the collective body known as the New South Wales Regional Council, under sub-clause 14(a)(vi) of the rules, but is not itself an election to the office of a voting member of that body.
Although my reasons differ from those of Branson J, I think her Honour was correct in concluding that the position to which Ms Perkins was declared elected was not an "office" within the meaning of the statutory definition of that term. Accordingly, the Court lacked jurisdiction to inquire into the regularity of her election. I would dismiss the appeal.
I certify this and the preceding seven (7)
pages to be a true copy of the Reasons for Judgement
of his Honour Justice Wilcox.
Associate:
Date: 24 April 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALESDISTRICT REGISTRY | NG 57 of 1998 |
|
BETWEEN: | AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION
Appellant |
|
AND: | ROBERT CLIVE FOHMSBEE
Respondent |
|
AND: | AMANDA PERKINS
SECOND RESPONDENT |
|
AND: | ROY KENNETH HILL
THIRD RESPONDENT |
|
JUDGE(S): | NORTHROP, WILCOX and MADGWICK JJ |
| DATE: | 24 APRIL 1998 |
| PLACE: | SYDNEY |
MADGWICK J: I am grateful for having had the opportunity to read in draft the reasons of Northrop and Wilcox JJ. In particular, I have benefited from the extensive work of Northrop J in Neilson v Corsetti (Federal Court, 21/11/1997, unreported) and in this case in reducing the structure of the subject organisation's rules to what his Honour calls a "long precis". Like the rules of other complex present-day organisations, in their length and complexity they can almost be called unruly rules.
I need not again set out any of the Rules referred to by Northrop J, and can state my own additional reasons more shortly than would otherwise be possible.
It was necessary for the applicant to establish to the learned primary judge's satisfaction that the Court had jurisdiction. By the operation of s 218 and s 4 (definition of "office") of the Workplace Relations Act ("the Act"), and the matters put in issue by Ms Perkins, this required demonstration that the subject election related to:
(a) the office of a voting member of a collective body, the NSW Regional Council of the Printing Division of the organisation; and
(b) that such Council was a collective body of the organisation or of a branch of it.
"Officer"
The first question depends upon whether the rules ought or ought not to be construed as indicating an intention that all "State Organisers - Printing Division" are to be members of the Regional Council. I agree with Northrop J that they should be so construed. I agree also with what I understand to be his Honour's essential reasoning.
The following further matters, in my opinion, support that conclusion.
1. Rule 49(1) provides that:
"Subject to the transitional provisions contained in Rule 50, the provisions of this Rule shall apply notwithstanding anything elsewhere contained in these Rules."
In the case of such a provision, and having regard to its discrete subject matter, it is appropriate to ascertain whether a clear and sensible meaning can be given to it before having regard to the provisions elsewhere made. So read it would not, with respect, occur to anyone to read R 49 in other than the way proposed by Northrop J and myself. The only provision dealing with a determination of the number of organisers is para 14(a)(vi). It invests in the National Council ultimate power of denial of the number of organisers sought by the Regional Council, unlike the position as to the vice presidents and the innominate councillors. That is exactly what one would expect if the intention had been that all organisers should be included in the Regional Councils. It is how, bearing in mind that the rules are those of a union, one naturally reads them. Nothing in the historical context makes that intention unlikely.
That rules other than RR 49 and 50 may, on one view, open the way to some doubt is beside the point. Rule 49(1) does not say that R 49 only applies unless the contrary intention appears elsewhere, or where provision is not elsewhere made in the rules for the subject matter of R 49. Why would the amalgamating PKIU, any more than the other amalgamating unions (see para 9 below and cf RR 43(1), 45(1) and 47(1)), have had it any other way?
2. If rules outside R 49 are to be looked at, then, as the difference between the members of this Court shows, the meaning of R 49(14)(a)(vi) becomes, in my opinion, capable of two meanings. In construing the rules of an organisation as to its internal workings, it is permissible, indeed only common sense (as it is in the case of any other consensual document) to refer to materials which clarify the pre-existing factual setting and issues with which those who framed the rules were attempting to deal. See Short v F W Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511, per Burchett J and Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, per Mason J. In any case, it is trite that such rules should be construed as a whole (that is, subject to expressions such as those discussed in para 1 above).
3. Those materials which were before her Honour were somewhat scanty. No doubt this is accounted for by the way in which the jurisdictional point was raised at the heel of the hunt. Nevertheless the following matters may be deduced or assumed:
(a) In the old PKIU the State branches thereof had their own registered branch rules and there was virtually no requirement of a uniform internal structure as between them, except for a requirement that there be Boards of Management, in NSW called an Executive. This may also be deduced from R 50. (In Victoria it appears that there was an "Executive Committee" which included members "representing Sections".)
(b) It was necessary, upon the amalgamation, to translate PKIU office-holders into the holders of offices thought appropriate in the new organisation. There was not, however, simply a wholesale duplication of the former offices. Among other things, a more uniform structure for the regions of the Printing Division than had prevailed in the PKIU Branches was decided upon:
In each region there was to be a Regional Council (R 49(14));
Each regional council might consent to the constitution of "chapels" that is, to deal with the affairs of members in a particular "establishment": (R 50(5)) and to the formation of sub-branches in "provincial and country centres": R 50(6). The regional council might also establish "industry sections" (R 49(14)(b)) to encompass classification- and/or employer-delimited divisions of members (see e.g. R 50(9) and (8)).
Each Regional Council might, for the purposes of determining what councillors they would have under R 49(14)(a)(vii), permit chapels and sub-branches, as well as the sections, to elect persons to the Regional Council in proportion to their size (R 49(14)(b)).
(c) All the former PKIU Branch organisers appear to have become State organisers in the new organisation (R 50).
(d) The NSW Branch of the PKIU was one of the largest two branches and likely the largest. In the NSW Branch all the Organisers had been members of the Branch's Executive and it had also included 33 "sectional representatives". The evidence does not show what the position was in the other Branches.
(e) Among the usual purposes of and opportunities presented by an amalgamation of bodies such as trade unions is the potential achievement of economies of scale. There are usually difficult questions of particular, as against general, interests to be resolved: headquarters versus the field; customs in certain industries as against others, and so on. An interest of members other than those in the Printing Division as to how many persons the latter might employ seems therefore to be natural and legitimate; such an interest as to how many of the Division's Regional full-time officials should or should not be members of the Regional Council does not readily so appear. Both now and in the former PKIU the full-time officials are considerably outnumbered by ordinary members on the Council and what was more or less its predecessor.
(f) In the Printing Division, organisers are elected by members generally for a four-year term and must themselves have been financial members for 3 years: R 49(33)(a)(ii)A. It is envisaged that on the "State Councils" of the organisation, there will be significant numbers of organisers - indeed places are reserved for them: R 21(2)(a), 10 places are reserved for organisers on the NSW State Council.
(g) There are only 4 NSW State Organisers attached to the Printing Division. They are conceived to be full time operatives of the organisation: RR 16(3)(d), 23(1)(b), 24(3), 24(5), 36(1).
In the light of that and the foregoing matters, there seems no reason why the framers of the rules might not have intended that all the State Organisers - Printing Division should be ipso facto members of the Regional Council and every reason why they might have so intended.
4. It is acknowledged by counsel for Ms Perkins that the formula "such number of [officials] as may be determined by Regional Council" for determining how many officials should be on the Regional Council, necessarily applies as much to Regional Vice-Presidents as to organisers - see R 49(14)(a)(ii). While there is some argument that an express means of determining the total number of organisers may be found elsewhere in the Rules, there is plainly no such express means as to Vice-Presidents, and one would expect to find such an express provision somewhere. This is a powerful indicator that that mechanism as to vice-presidents was regarded as also having been settled by the said formula. It is very unlikely that, in the same paragraph, the same formula was used to different intent in relation to organisers.
5. Rule 49(32) is the only provision said to enable an election of some organisers from those elected each 4 years to serve on the Regional Council. It is very unlikely that that provision was intended to include organisers as comprehended within the expression "Regional Councillors or equivalent position". If "Regional Councillor" meant any member of the Regional Council, other than the Regional Secretary or Assistant Secretary, it would have been pointless, in R 49(32), to include a reference to the Regional President and the Regional Vice-Presidents. However, a reference to "Regional Councillors" would, on the contrary, have been an apt means simply of referring to those Councillors permitted and otherwise left innominate by R 49(14)(a)(vii). Having regard to the history, such a notion draws support from the words "or equivalent position". A concept of the Regional Council having had an "equivalent" body in the PKIU still survives, if only for a limited purpose: R 49(16)(b). Rule 50 shows that persons now apt to be Regional Councillors within R 49(14)(a)(vii), might or might not be so called in different Regions, no doubt continuing former PKIU Branch practices.
6. Rule 49(33) also casts light on what is meant by the term "Regional Councillors or equivalent positions" in R 49(32). By virtue of R 49(33)(a)(ii)A, continuous membership of 3 years is a qualification for nomination for election as (among other positions), State Organisers. Rule 49(33)(a)(ii)B however requires that "in the case of Committee Members or equivalent positions" there be only 12 months' continuous membership. It would be peculiar if, in the preceding subrule, the position of the 3-year qualified Organisers had been referred to as an "equivalent position" to that of the 1-year qualified Regional Councillors.
7. If there is to be an election of the Vice-Presidents on the Regional Council from among all the Vice-Presidents, it would be impossible to know who the latter were, in order to hold that election. Under R 49(32)(a) the Vice-Presidents are to hold office for one year. But so are the "Regional Councillors or equivalent position". Members would either be electing next year's Vice-Presidents to be on the Council from last year's Vice-Presidents (who might not even be re-elected as Vice-Presidents at all for next year), or there would need to be two elections in the one year. But R 49(32) foresees "an" election for the Vice-Presidents and the Councillors (as well as the President) each year. And if there were two elections in one year, either a Vice-President for year 1 might continue on the Council into year 2 despite the possibility of having not been re-elected a Vice-President at all for year 2, or there would be some part of the year when there would be no Vice-President on the Council.
8. None of the foregoing difficulties attends a conclusion that what the Rules intend is that there be "an" election of Vice Presidents and an election of organisers all of whom are to be, ipso facto their election, members of the Council. If there was to be an election of "Councillor-organisers" and "Councillor-vice presidents" from among the organisers and vice presidents, one would surely have expected, given the above difficulties, express provision for it - no amount of implication could resolve all the issues that would be raised.
9. It is not only the Printing Division which reflects the amalgamation of the former AFMEU with other former organisations. Rules 43-48 provide for the amalgamation of the AMWU (as the AFMEU had first been) with organisations with the acronyms of ADSTE, VBEF, and CW&FPU, and gave rise respectively to the Technical and Supervisory, the Vehicle and the Food, and the Confectionery Divisions. Some effort has been made to set up something like a coherent structure for these Divisions which, broadly, parallels that of the Printing Division. In the cases of the three other Divisions mentioned, there are also "Regional" structures and the question of the presence of organisers as members of "Regional Councils" is dealt with. By virtue, respectively, of RR 43(16)(a)(v), 45(14)(a)(v) and 47(14)(a)(vi), it is made clear that all the State Organisers for the relevant Division are included in the relevant Regional Council. It is also apparent that the decision about the number of such organisers involves an occasion for negotiation between non-Divisional and other interests in the organisation, although in these instances it is the State Council which provides that forum rather than, as in the case of the Printing Division, the National Council.
10. The argument for Ms Perkins is that the number of State Organisers to be assigned to the Printing Division is to be determined by the State Conference under R 23 and that the number of them to go onto the Regional Council is determined by the Regional Council under R 49(14)(a)(vi). Rule 23 actually makes a determination under para (1)(b) thereof subject to the approval of the National Council "and/or" the State Conference, but the primary decision-maker under R 23 is the State Conference. In any case, R 49(14)(a)(vi) requires the approval of the National Council. It does not involve the State Conference (or Council) at all. What comprehensible policy might involve the National Council but not the State Conference in such an entirely intra-Regional (and, of course, Divisional) matter as how many of the already-determined number of organisers should be on the Regional Council, without also involving the National Council in a decision about how many of the Vice Presidents or how many "other persons" (R 49(14)(a)(vii) should be on the Council (R 49(14)(a)(ii), was not explained. Nor can it be.
11. Rule 23 does not in terms say who shall divide the number of State Organisers between the various Divisions and the electoral division comprising members unattached to the named Divisions (the last class is plainly the members who would have been eligible for membership if various amalgamations had not occurred). But somebody has to do it.
It is readily inferred from the materials that the former AMEU members are more numerous than former PKIU members and that the latter are more numerous than those of ADSTE, VBEF and CW & FPU. It would be entirely understandable if the PKIU had bargained for and obtained, as part of the amalgamation, direct access by the Regional Councils to the National Council on the question of how many full-time officers they might have, the entire matter of the number of full-time officers for all Divisions in each State being, ultimately, despite R 23, for the national bodies of the whole organisation.
12. There were only four positions of Organisers in the NSW Region and six in the Victorian Branch of the PKIU (R 50) as at the date of amalgamation. There were many more chapel, sub-branch and section representatives on the PKIU Branch Committees of Management and it is a safe enough inference that the same is the case now on the Regional Councils. Why there should be a desire to exclude some of a small number of full-time officers, elected directly by the members at large, from such an inclusive body is a matter which begs an explanation. Why such exclusion should be thought important enough to warrant further annual elections on the subject is no more apparent.
"Branch"
I agree with Northrop J's essential reasoning on this subject too.
I agree also with Wilcox J that, as far as possible, no narrow view should be taken of an expression if so to do might limit the availability of election inquiries. The fundamental legislative purpose for regulating unions as "organisations" is to ensure that there are organs which authentically and authoritatively express the collective wishes of employees (and employers) and which can participate in the legislative scheme for expression of the constitutional power to have interstate industrial disputes settled by arbitration. Fair, honest and well-regulated elections of the office bearers of such organisations are crucial to their authority. Too many Australian elections, including union elections, have been marred by unprofessionalism and worse to infer any narrow legislative approach to the subject.
It would be equally mistaken, having regard to the underlying requirements for organisations to be authentic and authoritative, to infer a narrow approach by the legislative to the range of officers whose positions are protected and regulated by the Act in various other ways - see e.g. ss 195(1)(c), 199, 227-232, 253ZD-253ZF.
However, it seems to me that whether a body within an organisation is a "branch" may very well depend on matters of degree. Ephemeral and ad hoc, or insufficiently clearly delimited, collections of union members may not warrant the appellation. Neither may mere divisions of the membership unaccompanied by some substantial power of independent action or some substantial degree of internal self-government. It may be regrettable that such an important legislative concept depends upon matters such as these upon which, I agree with Wilcox J, opinions may readily differ. Nevertheless, in my view, it is inescapable that the concept does so depend.
As the survey of the rules undertaken by Northrop J shows, the regions of the Printing Division are well-defined, durable, have significant rights to act and have an impressive degree of internal self-government.
The Regional Councils have the duty (and therefore the power) to "conduct and manage the business of the Printing Division within the Region" (R 49(14)(c)) (including power to enter into an industrial agreement affecting their constituencies: R 13(9)). That power is far-reaching: Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 esp 56-30 per Fullagar J. While the evident scheme of the organisation's rules is to centralise control of funds in national (and supra-divisional) hands, the existence of that power and duty necessarily implies that Regional Councils will be supplied with reasonable access to the use of reasonable funds in all the circumstances for the accomplishment of their legitimate purposes. It is not necessary that, to be a branch, a body must have entirely full and independent management of its own financial affairs. The learned trial judge adverted to the question of such management and it may be an important indicator in some cases. But, in my respectful view, the matter is of no great importance here, given the significant degree of self-government which is otherwise accorded to the "regions".
Her Honour also considered it to be of significance that the Division's regions:
"are not a section of the total membership of the Organisation locally organised for the sake of convenience, but rather a section of the membership of the Printing Division of the Organisation locally organised for the sake of convenience. The function of each Regional Council is . . . to manage the business of the Printing Division within its region; such function is not to manage the business of the Organisation as a whole within such region . . .".
In my respectful opinion her Honour points to a distinction which, for present purposes, makes no difference. Organisations may have branches divided geographically, occupationally or in other ways (e.g. by reference to an employer's operations) or by any combination of such methods. In complex organisations such as this one, it might be right to see some "branches", for example the regions, as parts of other branches, for example the Printing Division. In other cases, such a constituent part may not, having regard, for example, to a low level of internal self-regulation, warrant being called a branch. In ordinary parlance, one would naturally enough speak of the NSW Region of the Printing Division of the organisation as the NSW Printing branch of the union.
I agree with the orders proposed by Northrop J.
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I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
Madgwick |
Associate:
Dated: 24 April 1998
|
Counsel for the Applicant: | Mr W R Haylen QC and Noelene Rudland |
| Solicitors for the Applicant: | Taylor & Scott |
| Counsel for the First Respondent: | Mr J Nolan |
| Solicitors for the First Respondent: | Paul Murphy |
| Counsel for the Second Respondent | Mr S Rothman SC and Ms C Howll |
| Solicitors for the Second Respondent | Geoffrey Edwards & Co |
| Counsel for the Third Respondent | Mr G Johnson |
| Solicitors for the Third Respondent | Australian Government Solicitor |
| Date of Hearing: | 13 March 1998 |
| Date of Judgment: | 24 April 1998 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1998/408.html