Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Robert Clive Fohmsbee & Ors [1998] FCA 96 (11 February 1998)

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - leave to appeal pursuant to s 421 Workplace Relations Act 1996 (Cth) - jurisdiction of the Court pursuant to s 218 Workplace Relations Act 1996 (Cth) - definition of "office" - definition of "organisation" - definition of "branch of an organisation".

Workplace Relations Act 1996 (Cth) - ss 4(1), 218, 222(1), 222(2), 421.

Robert Clive Fohmsbee v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Branson J, 19 December 1997, unreported) - cited

Williams v Hersey [1959] HCA 51; (1959) 103 CLR 30 - cited

Neilson v Corsetti (Northrop J, 21 November 1997, unreported) - cited

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v ROBERT CLIVE FOHMSBEE, AMANDA PERKINS and AUSTRALIAN ELECTORAL COMMISSION

NG 57 of 1998

FOSTER J
11 FEBRUARY 1998
SYDNEY
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 Applicant
AND:	robert clive fohmsbee First Respondent amanda perkins Second Respondent australian electoral commission Third Respondent
JUDGE:	FOSTER J
DATE OF ORDER:	11 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal be granted.

2. Costs of this application are to be costs in the appeal.

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 Applicant
AND:	robert clive fohmsbee First Respondent amanda perkins Second Respondent australian electoral commission Third Respondent

JUDGE:	FOSTER J
DATE:	11 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Extempore)

This is an application for leave to appeal from a decision of Branson J in Robert Clive Fohmsbee v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (unreported) given on 19 December 1997. Leave is required pursuant to s 421 of the Workplace Relations Act 1996 (Cth) (the "Act"). Otherwise, the nature of the appeal, if allowed, is simply that of an appeal from a decision of a single Judge of this court to a Full Court.

Her Honour had before her an application by one Robert Clive Fohmsbee, a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the "Union") claiming that there had been an irregularity in relation to an election for an office in a "Branch" of that organisation. Pursuant to that claim, he applied to the court for an inquiry to be held into the matter of the election, such inquiry to be held under s 218 of the Act.

The Union, which is the applicant in this application and which seeks to appeal from the decision given by her Honour, was not originally a party in the proceedings, however, it made application to be joined as a party on the basis that it had a proper interest to protect and significant arguments to put forward. Pursuant to s 222(1) of the Act her Honour granted leave to the Union to appear as a person justly entitled to be heard. Thereafter, the Union, the present applicant, was taken to be a party in the proceedings pursuant to s 222(2) of the Act. Application was also made before her Honour on behalf of Ms Amanda Perkins to be allowed in as a party, which application was granted. Ms Perkins sought a ruling that her Honour did not have jurisdiction to undertake the inquiry. This submission was upheld by her Honour. Accordingly, her Honour did not enter upon the inquiry.

The appeal that is sought to be brought is one challenging her Honour's decision and, should it be successful, seeking an order that the matter be returned so that the inquiry can be held. Matters of major concern for the applicant, however, relate to aspects of her Honour's decision in respect of the construction and application of its Rules, a matter that I will advert to later. Ms Perkins, to whom I have made reference, had been elected as an organiser of the New South Wales region of the Printing Division of the Union. It was that election which was sought to be called in question by the application before her Honour.

Her Honour, having allowed the addition of parties in the manner to which I have already made reference, then embarked upon the consideration of the submission that had been made to her that there was an absence of jurisdiction. The submission, as her Honour noted in her judgment, was based upon a requirement in s 218 of the Act which provided that the relevant inquiry into the claim of irregularity must relate:-

"to an election for an office in the organisation or branch of the organisation..."

The thrust of the objection to jurisdiction was that Ms Perkins had not been elected to such an "office" of the organisation. If she had been elected to an office, it was not an "office in the organisation" nor was it an "office in a branch of the organisation", the organisation being the applicant Union.

Her Honour considered the construction of s 4(1) of the Act which contained the definition of "office". I will not stay to set out that definition here. It is set out at length in her Honour's judgment. Her Honour noted that the crucial issue for determination on the preliminary point was whether the office of State Organiser-Printing Division to which Ms Perkins had been elected, was an office of an organisation or of a branch of an organisation within the definition of "office" in s 4(1)(b). She noted that determination of this matter required consideration to be given to the structure of the Union and its organisation for the purpose of determining whether the New South Wales region of the Printing Division, in respect of which the election had been held, was a branch of the organisation and also, whether the office of State Organiser-Printing Division constituted "the office of a voting member of a collective body of the organisation or branch" with powers set out in s 4(1)(b).

Her Honour noted that the Union itself had come into being as a result of a number of amalgamations of other unions including amalgamations of their operations, administration, funds and resources. She also noted that the Act contained "no definition of `a branch of an organisation'" nor did the Rules of the Union "expressly provide for `branches'". This did not mean that no branch could be identified within the meaning of the definition of "office" but that it was necessary for the rules to be considered as a whole for the purpose of determining whether, as a matter of fact, the structure of the Union's organisation resulted in its having branches within the meaning of the Act. Her Honour gave consideration to authorities bearing upon the meaning of the word "branch". She referred in the first instance to the well known statement by Fullagar J in Williams v Hersey [1959] HCA 51; (1959) 103 CLR 30 at 54-55 to the effect that a branch:-

"has no separate identity - no existence apart from the registered organization, of which it is an integral and inseparable part. Its members are merely a section of the total membership of the federation - locally organized for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation."

It would appear that her Honour sought and obtained guidance in the task that she was undertaking from that passage of high authority. Her Honour referred to other passages of which it is unnecessary for me to set out in these short reasons.

Her Honour then considered at some length the Rules of the organisation. Having done so and having referred to what Northrop J pointed out in Neilson v Corsetti (21 November 1997, unreported) and to one of the cases to which he had made reference, her Honour noted that although the Rules made the determination of whether the organisation had a structure involving branches a difficult one, it seemed to her on balance that the Rules were not to be understood as constituting the regions of the Printing Division as branches of the organisation. She said that "without deciding the question of whether or not the Organisation has branches (whether State branches or branches within an industry or branches on some other basis)..." she found, "having regard to the hierarchical structure of governance described" that "the regions of the Printing Division are not themselves branches of the Organisation."

Her Honour went onto say that, in her view, the regions were, at the highest, sub-branches or subordinate bodies of that section of the organisation known as the Printing Division. She went on to say that the regions of the Printing Division lacked the degree of independence of governance that the Act, as she held, envisaged being enjoyed by branches of organisations and she made specific reference to certain sections of the Act in this regard. Particularly, she emphasised that the Rules did not require that the regions of the Printing Division manage their own financial affairs, a matter that she obviously regarded as being of some importance in her determination that it had not been established that a region of a Division constituted a "branch". Her Honour also upheld the submission that the office of State Organiser-Printing Division was not a holder of an "office" within the meaning of the definition of "office" in s 4(1) of the Act. After consideration of aspects of the Act she found that that office was not an "office of a voting member of a collective body of the organisation".

Having made these findings her Honour came to her ultimate conclusion that there was no jurisdiction in the Court to conduct the inquiry. As her Honour herself indicated, the task of determining whether, in fact, there was relevantly a branch involved in the election, was a difficult one.

It has been put to me on behalf of the respondent to this application that her Honour's decision is so obviously right that leave to appeal should not be granted. I mean no disrespect when I say that the decision was obviously one that was difficult to arrive at and was a decision in respect of which minds could arguably differ. Accordingly I reject this submission. It was also put that the Union had no standing to bring the appeal. I am satisfied that, insofar as, apart from the matter of leave, this is an ordinary appeal and, the Union having been admitted as a party in the proceedings, that it has sufficient standing to bring the appeal.

I have to determine also whether a matter of sufficient importance has been raised to warrant the granting of leave. I am satisfied that the bases upon which her Honour reached the decision that she did not have jurisdiction to enter upon this inquiry have occasioned some concern which extends beyond that of the parties to her decision. I am satisfied, on the basis of what has been put before me, that the matters that she decided were of some considerable importance to the trade union movement.

The Australian Electoral Commission, which has been joined as a party in these proceedings, but only for the purpose of submitting to the Court's decision, has indicated in a letter which is part of Exhibit A that there is presently extant a notice purporting to have been issued under s 214 of the Act, in respect of the position of State Organiser, Victorian Region of the Printing Division of the Union. This has been issued by the Australian Industrial Registry to the Commission. The effect of that notice would ordinarily be that the Commission would hold the relevant election. Because of the present decision it is the view of the Commission that if it conducted any election for a State Organiser position in the Printing Division of the Union then the provisions of ss 215 and 216 of the Act would not be available in relation to that election. I am satisfied that the Commission appropriately and legitimately feels some concern insofar as what had previously been regarded as a firmly established position in relation to the holding of elections for this type of office has now been called in question. It is quite clear that the Commission would like the ultimate clarification of the situation through the decision of a Full Court of this Court. In my view, this is a perfectly legitimate wish on its part.

Similarly, the Australian Council of Trade Unions has expressed concern as to the ramifications of the current decision in a letter which is also part of Exhibit A. The Assistant Secretary of that body has said:-

"The practical effect of this decision, in taking a restrictive view of the notion of a `branch' and `offices' of an organisation of employees registered under the Workplace Relations Act 1996, shall significantly effect [sic] the post amalgamation organisational structure and offices of many unions."

It goes on to say that:

"Any consequent limitation upon ... ballots [conducted by the Australian Electoral Commission] will impose a considerable financial and administrative burden upon many of the affiliated unions."

I think the matters sought to be raised in this appeal are of sufficient importance and the decision itself is of sufficient complexity and difficulty to warrant the granting of leave and I grant leave accordingly.

I do not think it is appropriate that I make it a condition of leave that the Australian Electoral Commission's costs be paid in any event. The parties may wish to give consideration, of course, as to what role the Commission will play in the appeal and effectively what costs may be incurred by it but those are matters that I have to leave to them.

On the question of costs I order that the costs of this application should be costs in the appeal.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 11 February 1998

Counsel for the Applicant:	Mr W. Haylen QC with Ms N. Rudland
Solicitor for the Applicant:	Taylor & Scott
Counsel for the Second Respondent:	Mr S. Rothman SC
Solicitor for the Second Respondent:	Geoffrey Edwards & Co
Counsel for the Third Respondent:	Mr D. Godwin
Solicitor for the Third Respondent:	Australian Government Solicitor
Date of Hearing:	11 February 1998
Date of Judgment:	11 February 1998