Bunn, David & CSPU, the Community and Public Sector Union v Rennie, Gordon Andrew

[1997] FCA 473

CATCHWORDS

INDUSTRIAL LAW - rule to show cause - direction given by Queensland Branch Council to federal councillors of Queensland Branch of SPSF Group to vote against motion - whether rule under which direction given was valid - Whether Branch Council a body authorised under the rule to give such a direction - whether direction directory or mandatory

Workplace Relations Act 1996 s 196

Geneff v Peterson (1986) 19 IR 40
Lewis v Maynes (1988) 27 IR 113

No. NI 1133 of 1997

DAVID BUNN & CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION v GORDON ANDREW RENNIE

MOORE, MARSHALL & NORTH JJ

SYDNEY

4 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)
NEW SOUTH WALES DISTRICT REGISTRY )      No. NI 1133 of 1997

ON APPEAL FROM A SINGLE JUDGE OF
THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:  DAVID BUNN
  First Appellant

AND:      CPSU, THE COMMUNITY AND PUBLIC
  SECTOR UNION

Second Appellant

AND:                GORDON ANDREW RENNIE

Respondent

JUDGE:    Moore, Marshall & North JJ

PLACE:    Sydney

DATE:        4 June 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The appeal is dismissed.

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 )      No. NI 1133 of 1997

ON APPEAL FROM A SINGLE JUDGE OF
THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:  DAVID BUNN
  First Appellant

AND:      CPSU, THE COMMUNITY AND PUBLIC
  SECTOR UNION

Second Appellant

AND:                GORDON ANDREW RENNIE

Respondent

JUDGE:    Moore, Marshall & North JJ

PLACE:    Sydney

DATE:        4 June 1997

REASONS FOR JUDGMENT

This is an appeal from the judgment of Ryan J of 21 April 1997 sitting as a judge of the Industrial Relations Court of Australia (“IRCA”). The jurisdiction of IRCA is now, in substance, vested in the Federal Court of Australia by operation of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and this appeal is a proceeding in that latter Court. On 21 April 1997 his Honour ordered:

1.That the rule nisi granted herein on 8 December 1995 be made absolute.

2.That the first and second respondents perform and observe the rules of the CPSU by treating as null and void the resolution purportedly carried by a postal vote of members of the Federal Council of the SPSF Group as notified by the first respondent on 16 November 1995.

3.That liberty be reserved to any party to apply to myself on not less that 72 hours notice in writing to the other parties.

The orders made on 21 April 1997 flowed from reasons for judgment published on 27 March 1997 in which his Honour determined to make the relevant rule to show cause absolute. On 8 December 1995 Spender J had granted a rule to show cause which, inter alia, called upon the respondents to it, to submit why an order ought not be made calling upon the then Federal Secretary of the SPSF Group to declare lost a motion voted upon by the Federal Council of the SPSF Group by postal ballot.  The SPSF Group is a division of the CPSU, the Community and Public Sector Union, the second appellant.

The matter the subject of this appeal was heard and determined together with another rule to show cause in Good v Bunn (NI 1619 of 1996).  The trial judge’s reasons for judgment in the matter the subject of this appeal are contained at pp 3 to 15 of his judgment of 27 March 1997.  His Honour sets out, in those reasons, the terms of the motion passed by the Federal Council and the facts leading to the postal vote of the members of the Federal Council.

The motion which was the subject of the rule to show cause was declared to have been carried in circumstances where two federal councillors representing the Queensland Branch of the SPSF Group voted in favour of it despite a resolution of the Queensland Branch Council of the SPSF Group (“the Branch Council”) which, in effect, directed federal councillors from Queensland to vote against the motion.

Mr Haylen QC, with Ms Rudland of counsel, appeared for the appellants.  Mr Boccabella, with Ms Treston of counsel, appeared for the respondent.  Mr Haylen raised three contentions in support of the appeal.  First he submitted that the direction which the Branch Council gave to federal councillors was invalid because the rule which purported to permit the direction, namely, rule 25B of Part C of the rules of the second appellant, was not valid.  Rule 25B provides that:

“For the purposes of these rules it shall be a Councillor’s duty thereunder to vote or exercise the functions of a Branch Delegate to Federal Council in a manner which is consistent with a direction by the Branch which the Federal Councillor represents.”

Mr Haylen then submitted that if rule 25B was valid the Branch Council was not a body authorised by the rule to give such a direction. It was submitted that the rule was enlivened only by on a decision of a general or special meeting of members of the Branch.  Mr Haylen finally submitted that in any event the direction given was directory and not mandatory and did not oblige the Councillors to cast their vote in accordance with the direction.

The contentions of the appellants repeat submissions made to the trial judge. His Honour’s reasons for judgment dealt with those contentions. We agree with those reasons. It follows we agree with the trial judge, for the reasons he gave, that rule 25B is not oppressive, unreasonable or unjust in the manner referred to in s 196(c) Workplace Relations Act 1996. On that we wish to add the following observations. The first concerns the submission of the appellants that the Branch Executive might meet, for example, three days before a Federal Council meeting and direct the Federal Councillors how to vote and did so to avoid review of that direction by the Branch Council. However, simply because a rule might be used for a capricious or wrongful purpose, it does not follow that the rule offends s 196. The yardstick for measuring its validity is not its extreme application in some hypothetical sense: see Geneff v Peterson (1986) 19 IR 40 at 80 and Lewis v Maynes (1988) 27 IR 113 at 122.

The second observation we wish to make concerns the following passage in the trial judge’s reasons for judgment at p 11:

“The present r. 25B does not inhibit at all the expression of any views by Federal Councillors or any other members of a Branch.  It simply ordains that, presumably after a full and frank exchange of arguments on a particular policy issue, the will of the Branch is to be given effect by those Councillor who represent it on Federal Council notwithstanding that they may entertain reservations or, indeed, espouse a contrary view.”

His Honour was not thereby indicating that the scope of rule 25B was such that it could not found a direction limiting the capacity of a Federal Councillor to speak about a matter at Federal Council.  In terms, the rule could found such a direction, though the validity of that part of the rule is a matter we are not called upon to determine given that, in our view, it contains two discrete elements.  One concerns a direction as to how to vote.  The other concerns a direction as to “the exercise of functions”. As we construe the rule, a direction may concern one but not the other.  In the present case the validity of the rule arises in the context of a direction as to how to vote, not a direction as to “the exercise of functions”. More importantly, the observations of his Honour, as we understand them, concerned the operation of rule 25B on discussions within the Branch prior to, or at the time of, any consideration of a direction being given under that rule.  His Honour was saying that rule 25B does not, indeed cannot, inhibit such discussions.

We dismiss the appeal.

I certify that the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:        

Alexandra George                 

Dated:  4 June 1997  

APPEARANCES

Counsel for the Appellants:  Mr W Haylen QC with Ms N Rudland

Solicitor for the Appellants:     Geoffrey Edwards & Co

Counsel for the Respondent:  Mr L Boccabella with Ms Treston      

Solicitor for the Respondent:     Qunilan Miller and Treston       

Dates of Hearing:           2 June 1997