Campbell v Bogar
[1996] IRCA 280
•03 July 1996
DECISION NO: 280/96
CATCHWORDS
INDUSTRIAL LAW - Registered organisations - Rules - Interpretation of - status of office in organisation after amalgamation - whether full-time or part-time - interrelationship between enabling and transitional rules - limited operation to be given to transitional rule
Legislation
Industrial Relations Act 1988 (Cth) ss 209, 234.
No. VI 4720 of 1995
G.CAMPBELL, D.CAMERON, D.HARRISON, J.CORSETTI, D.GOODGER, G.HARRIS, I.JONES, B.FRASER, S.MAURICE, N.MARSHALL, J.ROYLE, J.SPEIGHT, M.NICOLAIDES, R.KEATING, M.TUMBERS, D.MOWBRAY, J.SHARP-COLLETT, K.PECKHAM, G.ADAMS, D.SMITH, P.NOACK, C.FRIZZIERO, B.MARTIN, P.JOHNSON AND M.McGILL v FREDA BOGAR
RYAN, MOORE AND NORTH JJ
MELBOURNE
3 JULY 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. VI 4720 of 1995
)
VICTORIAN DISTRICT REGISTRY )
BETWEEN: G.CAMPBELL, D.CAMERON, D.HARRISON,
J.CORSETTI, D.GOODGER, G.HARRIS,
I.JONES, B.FRASER, S.MAURICE,
N.MARSHALL, J.ROYLE, J.SPEIGHT,
M.NICOLAIDES, R.KEATING,
M.TUMBERS, D.MOWBRAY,
J.SHARP-COLLETT, K.PECKHAM,
G.ADAMS, D.SMITH, P.NOACK,
C.FRIZZIERO, B.MARTIN,
P.JOHNSON AND M.McGILL
Appellants
AND: FREDA BOGAR
Respondent
CORAM: Ryan, Moore and North JJ
PLACE: Melbourne
DATE: 3 July 1996
ORDER OF THE COURT
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. VI 4720 of 1995
)
VICTORIAN DISTRICT REGISTRY )
BETWEEN: G.CAMPBELL, D.CAMERON, D.HARRISON,
J.CORSETTI, D.GOODGER, G.HARRIS,
I.JONES, B.FRASER, S.MAURICE,
N.MARSHALL, J.ROYLE, J.SPEIGHT,
M.NICOLAIDES, R.KEATING,
M.TUMBERS, D.MOWBRAY,
J.SHARP-COLLETT, K.PECKHAM,
G.ADAMS, D.SMITH, P.NOACK,
C.FRIZZIERO, B.MARTIN,
P.JOHNSON AND M.McGILL
Appellants
AND: FREDA BOGAR
Respondent
CORAM: Ryan, Moore and North JJ
PLACE: Melbourne
DATE: 3 July 1996
REASONS FOR JUDGMENT
THE COURT: This is an appeal from a judgment of 24 March 1995 of Keely J and part of a later judgment of his Honour of 18 August 1995. The judgments were given in proceedings brought under s209 of the Industrial Relations Act ("the Act") seeking to enforce the rules of an organisation then named the Automotive, Food, Metals and Engineering Union ("the Union"). The appellants, together with the respondent, constituted the National Council of the Union.
The Union results from an amalgamation of a number of organisations including the Confectionery Workers and Food Preservers Union. At relevant times the Union was constituted by three divisions, namely the Technical and Supervisory Division, the Vehicle Division and the Food and Confectionery Division which reflect successive amalgamations. In each instance the Union has been the amalgamated organisation: see s234, that is, the organisation whose registration continued notwithstanding the amalgamation. The absorption of the structure and management of the deregistered organisations has, in part, been accommodated by a special enabling rule and a transitional rule in the rules of the Union.
The principal issue raised in this appeal is narrow in compass as are the facts that give rise to it. It concerns the nature of the office held by the respondent as Federal Secretary of the Food and Confectionery Division of the Union since 2 September 1994. She was elected to that office by the members of the Division in an election held in August 1994.
It is first convenient to set out some parts of the contentious rules of the Union. Rule 5 deals with the composition of the National Council and provides:
"5 - NATIONAL COUNCIL
Composition
There shall be a National Council comprised of:-
(a)The National President;
(b)The Federal President - Vehicle Division;
(c)The National Secretary;
(d)The Assistant National Secretary (Metals and Engineering), Assistant National Secretary of the Technical and Supervisory Division, Assistant National Secretary of Vehicle Division and the Assistant National Secretary Food and Confectionary Division;
(e)The National Organisers;
(f)Delegates representing each State elected in accordance with sub-rule 5;
The National President, the National Secretary, Assistant National Secretaries and National Organisers shall be full-time National Officials who shall be elected in accordance with these Rules and subject to the provisions of Rule 48.4.
The National Conference may from time to time decide to increase or decrease the number of full-time National Officials.
All full-time National Officials shall have full rights to participate and vote on the National Council.
...
...
..." (emphasis added)
Rule 47 is the enabling rule concerning the amalgamation involving the Confectionery Workers and Food Preservers Union. It relevantly provides:
"47 - SPECIAL ENABLING RULE - AMALGAMATION OF AMEU AND CW&FPU
Subject to the transitional provisions contained in Rule 48, the provisions of this Rule shall apply notwithstanding anything elsewhere contained in these Rules.
The provisions of this Rule are intended to bring about and facilitate the amalgamation of the operations, administration, funds and resources of the AMEU and the CW&FPU in an orderly and expeditious fashion.
...
The Federal Secretary - Food and Confectionary Division shall:-
(a)Hold office as Assistant National Secretary of the Union and perform the duties of Assistant National Secretary under these rules;
(b)Attend all meetings of the Food and Confectionary Division Conference and Federal Executive and ensure that accurate minutes are kept;
(c)Call meetings of the Food and Confectionary Division Conference and Federal Executive;
(d)Be responsible for the day to day direction of the work of salaried officers attached to the Federal Office of the Food and Confectionary Division;
(e)Subject to the approval of the National Council and National Secretary:-
(i)select persons to be employed or attached to the Food and Confectionery Division in the capacity of salaried officers;
(ii)where the office of the Food and Confectionery Division is situated separately from the office of the Union be responsible for the day to day management of the clerical and administrative staff and the selection and termination of employment of such staff;
(iii)where the office of the Food and Confectionery Division is integrated with the rest of the Union be involved in the selection and termination of employment of persons involved in an administrative and clerical capacity who are primarily allocated to work with the Food and Confectionery Division;
(f)Attend to the management of the Federal Office of the Food and Confectionery Division;
(g)Implement the decisions of the National Conference, National Council, National Administrative Committee, Conference of the Food and Confectionery Division and Federal Executive of the Food and Confectionery Division.
(h)Attend to, answer and keep and produce copies of all correspondence addressed to the Federal Office of the Food and Confectionery Division;
(i)Publish and distribute information and material of interest to members of the Union in the Food and Confectionery Division;
(j)Represent the Union in any industrial dispute affecting members of the Food and Confectionery Division only in more than one state;
(k)Subject to the decisions the Food and Confectionery Division Conference or the Food and Confectionery Division Federal Executive, enter into industrial agreements limited to members attached to the Food and Confectionery Division in more than one state;
(l)Carry out such other duties as may from time to time be assigned to him or her by the Food and Confectionery Division Conference, Federal Executive, National Conference, National Council, National Administrative Committee or National Secretary, and;
(m)Act on all matters concerning the Food and Confectionery Division in more than one region;
(n)Notwithstanding anything provided elsewhere in these rules the Federal Secretary - Food and Confectionery Division may also occupy the office of Regional President or Regional Secretary provided that he or she shall occupy one of those offices on an honorary basis.
..." (emphasis added)
Rule 48 is a transitional rule making provision for the occupation of office in the Union by officers of the de-registering Confectionery Workers and Food Preservers Union. Rule 48 commences:
"RULE 48 - TRANSITIONAL RULE
On and from the relevant date, each of the persons holding on the day immediately preceding the relevant date the office in the CW&FPU specified in the first column of the Schedule to this sub-rule shall hold the office specified in the second column and shall hold office until the date set out in the third column.
Where there is no office specified in the second column the person shall hold their former office until the date set out in the third column.
Until the date set out in the third column the persons holding office in the Confectionery Workers and Food Preservers Union shall hold office in the manner provided in the rules of the former organisation.
Rule 48 then contains a schedule setting out offices in the Confectionery Workers and Food Preservers Union and the name of the occupant of each office. It identifies the office assumed in the Union and the date on which the occupation of that office, by operation of the rule, will come to an end. The schedule relevantly provides:
"Office in CW&FPU Office in AMEU Expiration
of Office
NationalFederal Secretary Food 1 September
Conferenceand Confectionery Division/ 1994
MemberAssistant National
Tom Ryan Secretary
...
Food Preservers Division - New South Wales
Branch Secretary Regional Secretary - Food 1 September
Ray Warnand Confectionery Division 1994
...
Food Preservers Division - Victoria
Branch Secretary Regional Secretary - Food 1 September
and Confectionery Division 1994
...
Food Preservers Division - Tasmania
Branch Secretary Regional Secretary - Food 1 September
...and Confectionery Division 1994"
Rule 48 goes on to provide:
Where the honorary position of Federal Secretary, Food and Confectionery Division/Assistant National Secretary, is held by a person holding the office of Regional Secretary, Food and Confectionery Division, that person shall hold office as a National Conference delegate by virtue of his/her office as Assistant National Secretary.
The branch of which the person is Regional Secretary shall be entitled to elect an alternate delegate to National Conference in lieu of the Regional Secretary.
Where the Regional Secretary ceases to hold the dual positions, he/she shall resume office as a delegate to National Conference by virtue of holding the office of Regional Secretary.
..." (emphasis added)
The principal issue raised in the appeal concerns the construction of the rules of the Union though there is a subsidiary issue raised about the rejection by Keely J in his judgment of 24 March 1995 of affidavit evidence that the appellants sought to rely on.
We deal firstly with the question of construction. Rule 47(12)(a) provides that the occupant of the office of Federal Secretary, Food and Confectionery Division is an Assistant National Secretary of the Union. Thus, rule 5(2) would, apart from its concluding words, render that position a full-time position. The critical question is what is the effect of the concluding words "subject to the provisions of rule 48.4".
Rule 5(2) serves two functions. The first is to declare what the status of the offices referred to in rule 5(2) is, that is full time, and the second is to declare that the occupants of the offices are to be elected in accordance with the rules. Rule 48(4) does not deal in any respect with the method of election to the office of Assistant National Secretary and/or Federal Secretary, Food and Confectionery Division. Rule 48(4) does not deal expressly with the status of the position of Assistant National Secretary occupied by the Federal Secretary, Food and Confectionery Division. The only reference to its status is in the opening words which assume that it is an honorary position. The primary purpose of rule 48(4) is to establish a regime identifying the basis upon which people are or might be elected as delegates to National Conference. The only rational connection between rule 5(2) and rule 48(4) is if the reference to "honorary position", modifies the status of the office of Assistant National Secretary/Federal Secretary, Food and Confectionery Division otherwise conferred by rule 5(2). Unless the concluding words of rule 5(2) are otiose, that is their intended effect.
However rule 48 is expressed to be a transitional rule. It can be seen from the schedule that Mr Tom Ryan became the Federal Secretary Food and Confectionery Division/Assistant National Secretary. It was common ground that at the time the amalgamation took effect, he became the Regional Secretary of the Food and Confectionery Division, Victoria. The rule contemplated that the occupation of these offices, by operation of the transitional rule, would cease on 1 September 1994. Thus rule 48(4) had a rational operation during a transitional period, namely up to and including 1 September 1994.
During that period, Mr Ryan could have ceased to hold one of the offices occupied by operation of the transitional rule but have continued to occupy the other. Rule 48(4) deals with the consequences. The references we make from this point to Mr Ryan should be treated as a reference to anyone who might have been appointed to both the offices which he occupied during the transitional period: see rule 48(9). Rule 48(4) was intended to make plain that Mr Ryan's status as a National Conference delegate flowed from the occupation of the office of Assistant National Secretary which had a consequential effect on the capacity of the Victorian branch to elect an alternate delegate to National Conference. In the event that the Regional Secretary did not also occupy the position of Federal Secretary Food and Confectionery Division/Assistant National Secretary , the occupant of the office of Regional Secretary would be entitled to be a delegate to National Conference by virtue of occupying that office. It is clear, on its face, that rule 48(4) addresses a circumstance arising from the effect of the transitional rule and, in particular, the schedule.
Rule 3(7) provides:
"No member shall be entitled to nominate in any election for more than one position which would entitle the successful candidate to sit on the National Conference."
Rule 3(2) provides that the National Conference shall consist of members of National Council, which includes the Assistant National Secretary Food and Confectionary Division: see rule 5(1)(d). Rule 3(6)(a) provides that the delegates to the National Conference included the Regional Secretary. Thus the combined effect of rule 3(7), (3) and (6)(a) is to prohibit a person nominating for the office of both Regional Secretary and Assistant National Secretary Food and Confectionery Division. The position Mr Ryan was in at the time the transitional rule took effect was one that under the rules could not be replicated after 1 September 1994. That is, a person could not be elected to the office of Regional Secretary and also the office of Federal Secretary, Food and Confectionery Division. One of the purposes of rule 48(4) was to ensure that the effect of the apparent disconformity between the occupation of the offices by Mr Ryan arising from the transitional rule and the provisions of rule 3(7) was dealt with. That is, those offices could be occupied by Mr Ryan during the transitional period with provision made for representation of the Victorian Branch by an alternate delegate on the National Conference but on the basis that when, by the transitional rule, they were no longer occupied by him from 1 September 1994, the rules more generally would operate. That the rules operate in this way points clearly to rule 48(4) having only a limited life.
It follows, in our opinion, that the incorporation of the relevant part of rule 48(4) into rule 5(2) was similarly intended to be limited in its duration. The concluding words of rule 5(2) were intended to signify that the occupation of two offices, otherwise unattainable because of rule 3(7), would not result in the occupation of the position of Assistant National Secretary on a full-time basis during the transitional period.
However the status of the office of the Federal Secretary does not depend only on the construction of rule 5(2) having regard to rule 48(4). It is also necessary to consider rule 47(12)(n). It is to be remembered that rule 47 is to apply notwithstanding any other rules, including rule 5, though subject to the transitional provisions. If, properly construed, rule 47(12)(n) rendered the office of Federal Secretary, Food and Confectionery Division a full-time one then rule 5(2) would yield to rule 47(12)(n). That would be so because rule 48(4) did not, apart from the incorporation of it in rule 5(2), confer on that office a particular status. Rule 48(4), in terms, simply assumed the status.
It is to be remembered that rule 47(12) in its entirety concerns the office of Federal Secretary, Food and Confectionery Division. However rule 47(12)(n) does not confer on the offices named in it an identified status. It assumes that a status is conferred on the offices elsewhere in the rules and its purpose is simply to ensure that the one occupant of both offices cannot assert a right, for example, to a salary in relation to both offices. The rules do not expressly deal with the status of the offices of Regional President or Regional Secretary.
In our opinion, the office of Federal Secretary, Food and Confectionery Division was, by operation of rule 5(2) a full time office, at least from 1 September 1994. This conclusion is not dependent on the duties attaching to the office listed in rule 47(12) but the range and nature of the duties is entirely consistent with that conclusion.
The rules, on their face, can be rationally construed. While not entirely clear, they are, relevantly, not ambiguous. No occasion arises for the reception of evidence about the formulation of the rules and the reasons for their adoption. It is unnecessary for us to consider more generally the issue of what circumstances, if any, might warrant the reception of evidence about the reasons for and the circumstances in which rules were adopted, for the purpose of construing them.
We dismiss the appeal.
I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of their Honours Justices Ryan, Moore and North.
Associate: ........ ........ ......
Dated: 03/07/96
APPEARANCES
Counsel for the Appellants: W.R.Haylen QC and J.P.Wallace
Solicitor for the Appellants: Taylor & Scott
Counsel for the Respondent: H. Borenstein
Solicitor for the Respondent: Slater & Gordon
Date of Hearing: 7 February 1996
Date of Judgment: 3 July 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No VI 4720 of 1995
VICTORIAN DISTRICT REGISTRY )
BETWEEN: G.CAMPBELL, D.CAMERON, D.HARRISON,
J.CORSETTI, D.GOODGER, G.HARRIS,
I.JONES, B.FRASER, S.MAURICE,
N.MARSHALL, J.ROYLE, J.SPEIGHT,
M.NICOLAIDES, R.KEATING,
M.TUMBERS, D.MOWBRAY,
J.SHARP-COLLETT, K.PECKHAM,
G.ADAMS, D.SMITH, P.NOACK,
C.FRIZZIERO, B.MARTIN,
P.JOHNSON AND M.McGILL
Appellants
AND: FREDA BOGAR
Respondent
CORAM: Ryan, Moore and North JJ
PLACE: Melbourne
DATE: 3 July 1996
CORRIGENDUM
On page 12, line 10, Counsel for the Respondent should read:
"H. Borenstein with I.R. Fehring".
Patrick Wheelahan
Associate to Justice Ryan
3 July 1996
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