Application by the Federated Liquor & Allied Industries Employees Union of Australia

[1981] FCA 21

Re: IN THE MATTER of the Conciliation and Arbitration Act, 1904
And: IN THE MATTER OF an Application by the FEDERATED LIQUOR AND ALLIED
INDUSTRIES EMPLOYEES UNION OF AUSTRALIA pursuant to Section 171C of the said
Act.
N.S.W. No. 24 of 1979
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - Registered Organization - Rule amending rule mandatory invalidities occurring in the making of the rule amendments - validating orders. Conciliation and Arbitration Act 1904 - s.171C(1) and (2).

HEARING

MELBOURNE

#DATE 19:3:1981

ORDER

(1) Pursuant to s.171C(1), invalidities have occurred in the making of certain amendments to the rules of the organization, namely the failure to submit such amendments pursuant to Federal r.39(3) to the Tasmanian Branch of the organization prior to the meeting of its Federal Council held 15 - 21 November 1978.

(2) Pursuant to s.171C(2)(a) and (b), being satisfied that the order proposed herein will not do substantial injustice to the organization itself or to any member or creditor of the organization or to any person having dealings with the organization, that the resolutions of the meeting of such Federal Council adopting items 2, 3, 4, 6, 7, 23, 24, 25, 27 and 29 on the agenda for such meeting amending respectively Federal rules 6(c)(iv), 6(d), 7, 9(e), 11(b) and Branch rules 5(1)(g), 5(3)(a), 9, 14 and 19(b) be deemed to have been validly adopted in accordance with the then certified rules of the organization.

(3) The General Secretary on behalf of the organization shall prepare and file particulars of the alterations to the rules in relation to the agenda items referred to and,

(4) A sealed copy of the order herein together with a copy of the affidavit of Michael Gerard Boland sworn 1 August 1979 and filed herein be served on the Industrial Registrar within 7 days of the date of this order.

JUDGE1

This is an application brought by the Federated Liquor and Allied Industries Employees Union (the organization) an organization registered under the Conciliation and Arbitration Act 1904 (the Act) pursuant to s.171C seeking first, a determination on the question where an invalidity has or invalidities have occurred during the making of or alterations to certain rules of the organization adopted by its Federal Council at its meeting held 15 - 21 November 1978; and secondly, assuming a determination by the Court that such invalidity has or invalidities have occurred, that orders pursuant to s.171C(2)(a) rectifying such invalidity or invalidities be made.

Prior to the hearing of the substantive matter on 17 December 1980 the Court directed that advertisement be placed in "The Australian" newspaper together with another daily newspaper circulating within the State of Tasmania advising of the present application and the grounds thereof and indicating that documents filed in support of such application may be inspected by any member of the organization at any of the Registries of the Federal Court of Australia. No member has made an application to so inspect documents. I am satisfied that the respective advertisements were placed in the said newspapers and that no objection was made by any member to the General Secretary of the organization in respect of the making of the orders sought.

At all relevant times Federal rr.8(3) and 39 of the certified rules of the organization read:

"8 - Powers and Duties of Federal Council
The supreme control of the Union is vested in the members.
Subject thereto the Federal Council shall be the governing body of the Union. It shall have the general control and conduct of the business of the Union and without limiting the foregoing its powers shall include the following: none of which is to be limited in its generality by the existence of another.
(1) . . .
(2) . . .
(3) To repeal, alter or add to the Rules."

"39 - New Rules and Alteration of Rules

1. No new rules shall be made, nor shall any of the rules for the time being of the Union be altered amended or rescined, except by and at a meeting of Council.

2. Any proposed new rule or alteration amendment or rescinding shall be endorsed by a Branch Meeting and the Secretary of such Branch shall notify the General Secretary in writing at least six weeks before a Council Meeting of the proposed alteration.
3. The General Secretary shall forward the proposed alteration to each Branch at least one month prior to the meeting of Council at which the proposed new rule or rules or alterations, amendments or rescinding of rules are to be discussed. The Branch Secretary shall submit such proposed alteration to a Branch Meeting prior to the Council Meeting.
4. Notwithstanding anything herein before contained or otherwise appearing in these rules the Federal Management Committee shall be empowered and authorized to submit to Federal Councillors and all Branches proposals to alter, amend or rescind in part or in whole Rule 4 Constitution, and at least 7 days after such has been sent to Councillors and Branches, Federal Council shall decide any such proposals by a simple majority vote of Council either by postal vote as provided by Federal Rule 21(f) or Special Meeting of Council as provided by Federal Rule 21(c)".

Such rules were considered by the Court in Morris -v-Federated Liquor and Allied Industries Employees Union (1978) 21 A.L.R. 425. The Court in that case determined that the provisions of r.39 were mandatory.

Subsequent to the adoption of amendments to Federal rules 6, 7, 9, 11, 16 and 39 and Branch rules 5, 9, 14, 15A, 19 and 27 by the Federal Council in November 1978 it was ascertained that although such alterations had been endorsed by Branch meetings in accordance with r.39(2) and that the General Secretary had forwarded the proposed alterations to each Branch in accordance with r.39(3) such alterations had not been submitted to a meeting of the Tasmanian Branch of the organization prior to such Federal Council Meeting. This clearly was contrary to r.39(3) and acordingly an invalidity or invalidities occurred in the making or alteration of the rules as adopted by the Federal Council in November 1978.

At that time the Tasmanian Branch was entitled to send two delegates to Federal Council. In fact two delegates from that Branch attended each session of the Federal Council Meeting held between 15 - 21 November 1978 and voted on each motion in relation to rule amendments considered thereat.

When the General Secretary lodged such rule amendments with the Industrial Registrar for certification pursuant to s.139(4), he also lodged the prescribed statutory declaration (Reg.128). Such declaration disclosed that all such amendments had been submitted to all branches of the organization other than the Tasmanian Branch. Accordingly, by letter dated 12 April 1979, addressed to the General Secretary the Industrial Registrar refused to certify such alterations.

At the hearing of the present application, a declaration was sought referable only to the resolutions adopted by such Federal Council in respect of amendments to rule 6, 7, 9 and 11 of the Federal rules and rules 5, 9, 14 and 19 of the Branch rules being items 2, 3, 4, 6, 7, 23, 24, 25, 27 and 29 on the agenda for the relevant meeting. The total voting strength at such meeting was 20. All such resolutions were adopted unanimously other than agenda item 4 (dealing with an amendment to Federal r.7) which was carried by 15 votes to 5.

The minutes of the Council Meeting do not record the names of delegates who voted against the motion in respect of the amendment to r.7 but in view of the voting the names of such delegates are not material. The motion would have been adopted whether the Tasmanian delegates voted for it or against it.

In all the circumstances I am satisfied that orders should be made to rectify the invalidities referred to and to negative the consequences in law of such invalidities. Further I am satisfied on the material before me that the order I propose to make will not do substantial injustice to the organization itself or to any member or creditor of the organization or to any person having dealings with the organization.

Accordingly the Court (i) pursuant to s.171C(1), determines and declares that invalidities have occurred in the making of certain amendments to the rules of the organization, namely the failure to submit such amendments pursuant to Federal r.39(3) to the Tasmanian Branch of the organization prior to the meeting of its Federal Council held 15 - 21 November 1978 nd (ii) pursuant to s.171C(2)(a) and (b), being satisfied that the order proposed herein will not do substantial injustice to the persons referred to above, orders and declares that the resolutions of the meetings of such Federal Council adopting items 2, 3, 4, 6, 7, 23, 24, 25, 27 and 29 on the agenda for such meeting amending respectively Federal rules 6(c)(iv), 6(d), 7, 9(e), 11(b) and Branch rules 5(1)(g), 5(3)(a), 9, 14 and 19(b) be deemed to have been validly adopted in accordance with the then certified rules of the organization and (iii) further orders that the General Secretary on behalf of the organization shall prepare and file particulars of the alterations to the rules in relation to the agenda items referred to and (iv) further orders that a sealed copy of the order herein together with a copy of the affidavit of Michael Gerard Boland sworn 1 August 1979 and filed herein be served on the Industrial Registrar within 7 days of the date of this order.