Adlam v Noack

[1998] FCA 898

FEDERAL COURT OF AUSTRALIA

Industrial Law - application for order to observe and perform rules of organisation - interim order pending trial - applicant and first respondent elected officials - allegation of harassment including sexual harassment of applicant by first respondent - whether inconsistent with exercise of powers and functions of first respondent under the Rules to make interim order restricting communication between applicant and first respondent

Workplace Relations Act 1966, s 209

Matter No.  SG 91 of 1998
CAROLYN JENNIFER ADLAM v PAUL NOACK and DOUGLAS CAMERON

VON DOUSSA J
ADELAIDE
22 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 91  of   1998

BETWEEN:	CAROLYN JENNIFER ADLAM APPLICANT
AND:	PAUL NOACK and DOUGLAS CAMERON RESPONDENTS
JUDGE:		VON DOUSSA J
DATE OF ORDER:		22 JULY 1998
WHERE MADE:		ADELAIDE

Upon an undertaking being given by the respondent Douglas Cameron that he will:

(a)instruct the South Australian Branch President, Mr Ian Curry, of The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) to liaise with the South Australian Assistant State Secretary of the Union, Mr Rod Parham, and with him to take responsibility for administrative duties concerning the South Australian Branch of the Technical and Supervisory Division of the Union during the currency of interim orders herein; and

(b)to extend the instructions given pursuant to order 2 of the interim orders made herein on 16 July 1998 to run for the duration of interim orders herein

IT IS ORDERED THAT:

1.Subject to order 3 hereof, pending the hearing the determination of the rule to show cause the respondent Paul Noack refrain from communicating with the applicant in any way whether at work or at home or at any other place otherwise than in writing delivered to the applicant by a third party.

2.Pending the hearing and determination of the rule to show cause the respondent Paul Noack refrain from performing or seek to perform any administrative duties in relation to or concerning either the Technical and Supervisory Division of the Union or the applicant.

3.The preceding two orders shall not prevent the respondent Paul Noack from attending meetings that he is entitled to attend in his capacity as State Secretary of the Union under the rules of the Union and participating in the business of such meetings in the ordinary way.

4.Pending the hearing and determination of the rule to show cause the respondent Paul Noack shall not engage in any conduct calculated to harass the applicant and shall not encourage, instruct, authorise or incite any person to engage in any act or behaviour calculated to harass the applicant.

5.        Further consideration of these proceedings adjourned to

6.        Liberty to all parties and the Union to apply on 3 days notice.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 91 of 1998

BETWEEN:	CAROLYN JENNIFER ADLAM APPLICANT
AND:	PAUL NOACK and DOUGLAS CAMERON RESPONDENTS

JUDGE:	VON DOUSSA J
DATE:	22 JULY 1998
PLACE:	ADELAIDE

REASONS FOR INTERIM ORDERS

VON DOUSSA J:
The applicant applies for interim relief under s 209(4) of the Workplace Relations Act 1996.
A rule to show cause why orders should not be made under s 209 was granted on 15 July 1998.  The orders sought by the applicant are extensive, but the nature of those orders is sufficiently indicated by the following claims contained in the rule to show cause, namely:

1.That the respondent Douglas Cameron perform and observe the Rules of the Australian Manufacturing Workers Union (the organisation) by issuing verbal and written instructions to the Respondent Paul Noack and to the other South Australian Branch State Officials to the following effect:

(a)That they refrain from doing any act or engaging in any behaviour calculated to harass the Applicant.

(b)That they refrain from speaking to the Applicant in an abusive fashion or gesturing to her in an abusive fashion.

(c)That they refrain from obstructing the Applicant in her free movement in the offices of the organisation in South Australia.

(d)That they refrain from approaching the Applicant except to the extent necessary and appropriate to carry out their duties.

(e)That they refrain from approaching the Applicant outside work hours and refrain from contacting her whether by telephone or otherwise at her home except where an emergency related to the performance of work necessitates such contact.

(f)That they observe and abide by the terms of the organisation’s Sexual Harassment Policy,

and by sending with such written instructions a copy of the organisation’s Sexual Harassment Policy.

2.That the respondent Douglas Cameron perform and observe the rules of the organisation by imposing a suspension from duty and the privileges of office upon the Respondent Paul Noack until the hearing and determination of charges presently laid against him by the Respondent Douglas Cameron.

.....

4.Alternatively to 2 above that the Respondent Douglas Cameron perform, and observe the rules of the organisation by directing the Respondent Paul Noack that he not perform any administrative duties in relation to or concerning either the T&S Division or the Applicant.

.....

7.That the Respondent Paul Noack perform and observe the rules of the organisation by refraining from attending at the offices of the organisation in South Australia until the hearing and determination of charges presently laid against him by the Respondent Douglas Cameron.

.....

9.That the Respondent Paul Noack perform and observe the rules of the organisation by refraining from doing any act or adopting any behaviour calculated to harass the applicant including that he:

(a)refrain from approaching the Applicant either at work or at any other place or time.

(b)refrain from seeking to contact the Applicant at work or at home whether by telephone or otherwise.

(c)refrain from encouraging, instructing, authorising or inciting any person on his behalf to engage in any act or behaviour calculated to harass the applicant or to do any of the acts referred to in (a) and (b) above.

The applicant is an elected official of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) which is referred to in the order to show cause as the Australian Manufacturing Workers Union.  She is currently the South Australian Regional Secretary of the Technical and Supervisory Division of the Union and an Assistant Secretary of the South Australian Branch of the Union.  The first respondent, Mr Noack, is the current State Secretary of the South Australian Branch of the Union.  The second respondent, Mr Cameron, is the National Secretary of the Union.

In her affidavits in support of the proceedings the applicant alleges that for several years Mr Noack and several of his “associates” have conducted an aggressive campaign of harassment against her.  Mr Cameron in an affidavit that he has filed in relation to the application for interim orders, deposes that there has been much bitter antagonism over several years within the Union between different factions, and that the applicant and Mr Noack are members of opposing factions.  Moreover, at one point in time the applicant and Mr Noack had a personal relationship which has since soured.

Antagonism between the applicant and the respondent, and the deterioration of their workplace relationship, has been the subject of evidence and findings in recent proceedings in the District Court of South Australia in the matter of Noack v Adlam in which his Honour Judge Sulan delivered judgment on 29 April 1998.  His Honour found proved on the balance of probabilities that on 10 May 1996 Mr Noack indecently assaulted the applicant at the office of the Union at Dulwich.  The applicant alleges that this sexual assault has imbued the further conduct of Mr Noack with a sexual characteristic sufficient to bring it within the scope of the Union’s Sexual Harassment Policy.

On 11 May 1998 Mr Cameron laid a charge against Mr Noack requiring him to appear before the South Australian State Council to defend himself against allegations of gross misbehaviour, and to show cause why he should not be removed from office in the Union if found guilty.  The particulars of the gross misbehaviour alleged cover a number of specified incidents, and a course of conduct which may be broadly described as the harassment of Ms Adlam.  One of the particulars alleges the happening of the indecent assault found proved in the District Court.

The South Australian State conference of the Union occurred on 11 and 12 May 1998.  The decision of Judge Sulan was a topic for discussion.  On 12 May 1998 the State conference expressed grave concerns to the instability in the Union created by the findings in the District Court.  A number of resolutions were passed recognising the rights of Mr Noack to receive natural justice, and the entitlement of all officers, officials and employees to a safe workplace regardless of their divisional or political alliances.  One of the resolutions of the State Council was in the following terms:

“Consistent with the above a work program be designed which minimises the conflict and allocates the administrative functions of the Branch to Bro. Parham until the appeal process to the Supreme Court and/or the internal charges are heard and determined.”

Mr Noack denies the charges that have been made against him, including the allegation that he was guilty of an indecent assault.  He has appealed to the Full Court of South Australia against the judgment of Judge Sulan.  That appeal has been heard but not yet decided.  In the meantime no steps have been taken by the Union to have the charges laid by Mr Cameron heard by the State Council.

As the appeal to the Full Court of South Australia has not yet been determined, and as the application presently before this Court is only in respect of interim orders, it is inappropriate to explore in details the factual allegations that are made, or to make findings in respect of them.  It is sufficient to note that serious allegations of harassment and sexual harassment have been made by the applicant against Mr Noack in relation to his conduct as a Union official, and that there are serious issues of fact to be determined.

The applicant brings these proceedings to protect herself, through the Rules of the Union, against the continuation of alleged harassment by Mr Noack.  Whilst serious allegations are made by her which, if true, impact on the day to day operations of the Union in this State, it is necessary, when considering what interim orders should be made to recognise that Mr Noack holds elected office in the Union, and, pursuant to the rules of the Union, has certain obligations which a holder of his office must perform.  It is contended on his behalf that the orders sought, both interim and final, would prevent him fulfilling his duties.  The role of the Court under s 209 is to ensure the proper performance of the rules, not to prevent their performance.  Accordingly it is argued on Mr Noack’s behalf that it is not open to the Court to make any of the orders sought.

Mr Cameron has filed a detailed affidavit explaining his role as National Secretary in attempting to resolve the disagreements within the South Australian Branch of the Union, and as between the applicant and Mr Noack.  Whilst the applicant offers criticism of Mr Cameron’s role in some respects, the affidavit indicates that Mr Cameron has endeavoured to maintain an objective neutral role, and to work in the interests of the Union as a whole to resolve the very difficult situation which has arisen.  His stance before this Court is one of co-operation.  He has indicated that as National Secretary he will do what is necessary to implement any interim order that the Court feels that it is appropriate to make.  To that end he has indicated that if required, he will undertake to instruct the South Australian Branch President, Mr Ian Curry, either alone or in conjunction with the State Assistant Secretary, Mr Rod Parham, to take over responsibility for the administrative duties which Mr Noack would otherwise perform concerning the South Australian Branch of the Technical and Supervisory Division of the Union, and the applicant.  Such a direction would, to a marked degree, reduce the need for communication between the applicant and Mr Noack in the workplace pending the resolution of the outstanding charge against Mr Noack.

As submissions have developed before the Court, the interim orders sought by the applicant have been refined and confined to the following:

1.That the respondent Paul Noack refrain from approaching or contacting the applicant in any way whether at work or at home or at any other place and whether by telephone or otherwise.

2.That the respondent Paul Noack refrain from performing or seeking to perform any administrative duties in relation to or concerning either the Technical and Supervisory Division or the applicant.

3.That Mr Cameron issue instructions to the South Australian Branch State Officials requiring them to refrain from doing any act or engaging any behaviour calculated to harass the applicant including that they:

(a)refrain from approaching her either at work or at any other place or time except to the extent necessary to perform their duties, and

(b)refrain from encouraging, instructing, authorising or inciting any person on their behalf to do any act or engage in any behaviour calculated to harass the applicant.

Section 209(4) of the Workplace Relations Act provides:

“At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.”

The tests to be applied in determining whether it is “appropriate” to make interim orders have been discussed in Buchanek v Jones & Ors (1989) 34 IR 102, McGee & Another v Sanders & Ors (No.2) (1991) 39 IR 400 and Marshall v Main & Ors (unreported, decision of Marshall J, 25 July 1995). 

In the context of election cases where interim orders have been sought which would have the effect of final orders because of the urgency, and the short time interval remaining before the completion of the election, it has been said that the traditional tests applied in respect of the grant of interlocutory injunctions do not have direct application.  In McGee v Sanders Gray J said at 404:

“In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants’ entitlement to relief, and that the balance of convenience favoured the applicants.  I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act.  It should be noted that the power to make interim orders is given in broad terms.  The Court may make ‘such interim orders as it considers appropriate’.  Parliament has not chosen to use the word ‘injunction’.  The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect.  It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure.  In my view, it is the duty of the Court to do justice as best it can when confronted by an application for interim orders.  Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case.  In such circumstances, a court will naturally be more ready to make orders on an interim basis.”

In the present case, it is likely that there will in due course be a determination of the disputed allegations of fact, either by the State Council on charges laid by Mr Cameron, or, possibly by this Court on the further hearing of the rule to show cause.  The interim orders sought are more akin to those sought in ordinary civil litigation to hold the position in a workable way having regard to the balance of convenience of the parties involved, and the public interest, pending the ultimate resolution of the case.  In this case, one of the primary considerations must be the efficient and effective working of the Union pending the final resolution of the proceedings.  The effective operation of the Union means that elected officials, including Mr Noack and the applicant, should be permitted to go about the ordinary business of the Union with as little interference as possible, but at the same time in any environment where the allegations of harassment presently existing are, so far as possible, limited, if not removed.

I have already indicated there are serious questions of fact arising from the allegations made by the applicant against Mr Noack which remain to be determined under or for the purposes of the Rules.  They are serious allegations against Mr Noack, and require sufficient evidenciary support to make it appropriate for the Court to act by making interim orders.  Here the evidence advanced by the applicant is, prima facie, cogent.  Moreover, I consider the Court is entitled to give weight to the finding of Judge Sulan unless and until it is overturned on appeal.

The balance of convenience in my opinion justifies the making of some orders which restrain Mr Noack against the harassment of the applicant in the meantime.  However, these factors are not in themselves sufficient to make it appropriate that there be interim orders.  In addition, it is necessary for the applicant to establish that the orders sought by her reflect a proper performance of the Rules by each of the respondents.  This requires a consideration of the Rules and their interpretation. 

In my opinion the submissions made by counsel for the applicant indicate that, at least arguably, an order for the observance and performance of the Rules, would justify orders in the terms sought if the allegations of harassment made by Ms Adlam are established.

The uncontradicted evidence before the Court presently is that at the 1996 National Conference the Union adopted a Sexual Harassment Policy which commences with the statements that:

“Sexual harassment in the workplace is unlawful throughout Australia and will not be tolerated by the AMWU under any circumstances.  It is the policy of the union to provide a work environment free from sexual harassment.

The union acknowledges its responsibility and obligations as an employer.  In the event of unacceptable behaviour coming to the attention of the union, the union will take action to ensure a work environment free from sexual harassment.

The policy also acknowledges the right of employees to make known to the union any complaint of sexual harassment.”

The policy goes on to provide a strategy which commits the Union to a number of principles including the investigation of complaints, and the Union “undertakes...that action will be taken to ensure that misconduct does not continue”.

The host of allegations made by the applicant against the respondent include allegations which could be fairly characterised as sexual harassment.  However, they also include a broad range of allegations of general harassment brought about by conduct intended to intimidate or embarrass the applicant in the performance of her duties.  Many of these allegations could not fairly be said to constitute “sexual harassment”.

In my opinion it is implicit in the Rules of the Union that an elected Union official will be permitted by other officials to perform the duties and functions of their office without harassment and that other Union officials are under an obligation to permit this to happen.  It is no answer to assert that other officials were merely exercising the powers and functions of their offices.  Action taken for the purpose of, or which is likely to have the effect of, harassing another Union official in the performance of his or her duties cannot be a bona fide exercise of power or function for the purpose for which that power or function was granted: Allen v Townsend (1977) 31 FLR 431 at 454, 483. In my opinion it is not necessary for the applicant, to establish a basis for the orders she seeks, to prove that the harassment she alleges is “sexual harassment”.

Rule 6(1)(h) empowers the National Council to “ensure that officers and Committees of the Union carry out the rules, decisions and policies of the Union...” (emphasis added).

Rule 6(3) provides that all acts and decisions of the National Council are binding on all members of the Union.

Rule 8(1)(b) imposes a responsibility on the National Secretary (Mr Cameron) in conjunction with the National President and the Assistant National Secretary to be responsible for the implementation of Union policy.

In my opinion a direction given by the National Secretary in terms of the third of the above interim orders sought by the applicant would be one authorised by these Rules, and appropriate in aid of the observance and performance of Rule 6(1)(h) which in terms requires members to comply with the Rules (including implied obligations arising under the Rules) and the Sexual Harassment Policy.

For like reasons I consider that an order restricting communication between Mr Noack and the applicant could legitimately be made for the due observance and performance of the Rules if the allegations made against Mr Noack are established, with one possible qualification to which I now turn.

That qualification is whether the terms of the order would prevent Mr Noack from performing functions which he is given a right to perform under Rule 24(3) of the Union Rules.  If the order had the effect of preventing him from performing all, or even a major part of his duties, the order, in substance, might amount to a removal from office.

One of those entitlements is to attend and speak at any meeting of members in the State.  I consider that entitlement should not be restrained.  Rule 24(3) also provides that:

“The State Secretary shall be entrusted and authorised to act on all matters concerning the activities of the Union in the State, subject to these Rules.  He shall be responsible for the co-ordination of the work of the State Organisers and shall for all purposes be the main Executive and Administrative Officer of the Union in the State.”

Order 2 of the interim orders sought seeks to restrain Mr Noack from performing administrative duties in relation to the Technical and Supervisory Division of the Union and the applicant.  If it were not for the resolution of the State Council made on 12 May 1998 it would be necessary to consider the scope of the qualification in the provision just cited arising from the words “subject to these Rules”.  It may be that upon a proper interpretation of the Rules, a State Secretary could be restrained from harassing other officials even if the restraint had the effect of limiting the express powers and functions given to the Secretary under Rule 24.  However, it is not necessary to embark on that inquiry at this stage as the resolution of the State Council authorises the allocation of administrative functions of the Branch to someone other than the State Secretary and see Rule 22(4).  The resolution proposed that the functions devolve to Mr Parham.  If an order in terms of the second interim were made, coupled with some assurance that Mr Parham was to take over the administrative functions, I do not think the order would be inconsistent with the Rules.

The applicant expresses concern in her affidavit evidence that Mr Parham is “an associate” of Mr Noack, and that he has, in some respects at least, shown support for Mr Noack’s position.  The applicant therefore seeks to have the administrative functions devolve to someone other than Mr Parham, and has suggested the State President, Mr Curry.

On the information presently before the Court I do not think the Court would be justified in sanctioning any solution that excluded Mr Parham from administrative functions, even if the power to do so existed (a question which I leave open).  However, as the applicant has expressed her concern about the allegiances of Mr Parham I think it would be desirable that Mr Parham undertake administrative functions in conjunction with Mr Curry who is prepared to undertake such a role.

For these reasons, I consider that the following orders should be made at this stage upon an undertaking being given by the respondent Douglas Cameron that he will:

(a)instruct the South Australian Branch President, Mr Ian Curry, of The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) to liaise with the South Australian Assistant State Secretary of the Union, Mr Rod Parham, and with him to take responsibility for administrative duties concerning the South Australian Branch of the Technical and Supervisory Division of the Union during the currency of interim orders herein; and

(b)to extend the instructions given pursuant to order 2 of the interim orders made herein on 16 July 1998 to run for the duration of interim orders herein

namely orders that:

1.Subject to order 3 hereof, pending the hearing and the determination of the rule to show cause the respondent Paul Noack refrain from communicating with the applicant in any way whether at work or at home or at any other place otherwise than in writing delivered to the applicant by a third party.

2.Pending the hearing and determination of the rule to show cause the respondent Paul Noack refrain from performing or seek to perform any administrative duties in relation to or concerning either the Technical and Supervisory Division of the Union or the applicant.

3.The preceding two orders shall not prevent the respondent Paul Noack from attending meetings that he is entitled to attend in his capacity as State Secretary of the Union under the Rules of the Union and participating in the business of such meetings in the ordinary way.

4.Pending the hearing and determination of the rule to show cause the respondent Paul Noack shall not engage in any conduct calculated to harass the applicant and shall not encourage, instruct, authorise or incite any person to engage in any act or behaviour calculated to harass the applicant.

The parties will be at liberty to return to the Court if the interim orders do not bring about a tolerable, balanced and workable situation in the Union offices.

I note also that the parties recognise that when the decision of the Full Court of South Australia is handed down, it will be necessary for the parties to take stock of their position in light of that decision.  The applicant has indicated that she may return to Court seeking an order that Mr Noack be suspended from office pending the hearing and determination of the charges laid against him by Mr Cameron.  The Rules make no express provision for the suspension of an officer charged with a breach of the Rules.  Should such an application be made, the applicant will have to establish not only the need for such an order on the facts, but a source of power which would justify the Court making it.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa

Associate:

Dated:             22 July 1998

Counsel for the Applicant:	Mr S Howells with Mr J Weatherill
Solicitor for the Applicant:	Leitschke & Weatherill
Counsel for the Respondent Mr Paul Noack	Mr F Di Fazio
Solicitor for the Respondent Mr Paul Noack:	Maloney & Partners
Counsel for the Respondent Mr Douglas Cameron	Mr JH Pearce
Solicitor for the Respondent Mr Douglas Cameron	Taylor & Scott
Date of Hearing:	21 and 22 July 1998
Date of Judgment:	22 July 1998