Conway v Fernandez

Case [2018] FCA 1949

FEDERAL COURT OF AUSTRALIA

Conway v Fernandez [2018] FCA 1949

File number: VID 1536 of 2018
Judge: WHEELAHAN J
Date of judgment: 4 December 2018
Catchwords: INDUSTRIAL LAW – application for interlocutory relief under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) – whether Union Rules observed – procedural fairness – relief granted.
Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) s 164
Cases cited:

Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601

Conquo v Jackson [2009] FCA 45

McGhee v Sanders (No 2) (1991) 32 FCR 397

Date of hearing: 3 December 2018
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 37
Counsel for the Applicant: Mr C. Dowling SC and Mr Y. Bakri
Solicitor for the Applicant: Davies Lawyers Pty Ltd
Counsel for the First Respondent: Mr A Slevin
Solicitor for the First Respondent: Segelov Taylor

ORDERS

VID 1536 of 2018
BETWEEN:

PAUL CONWAY

Applicant
AND:

PATRICIA FERNANDEZ

First Respondent

GRAHAM SMITH

Second Respondent

MATT JOURNEAX (and others named in the Schedule)

Third Respondent

JUDGE:

WHEELAHAN J

DATE OF ORDER:

4 DECEMBER 2018

THE COURT ORDERS THAT:

1.Upon the applicant giving the usual undertaking as to damages, and pursuant to s164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth), until the hearing and determination of this proceeding or further order, the respondents be enjoined from proceeding to hear and determine the charges contained in the summons sent to the applicant on 20 November 2018.

2.There be liberty to any party to apply on 3 days’ notice to have the proceeding listed for an interlocutory hearing.

3.The proceeding be listed for case management on 18 December 2018 at 10.15 am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(Revised from transcript)

WHEELAHAN J:

INTRODUCTION

  1. The applicant is the President of the Federal Council of the Australasian Meat Industry Employees Union. The first respondent is the Secretary of the New South Wales Branch of the Union, and is also a member of the Federal Council. The other respondents are also alleged to be members of the Federal Council of the Union.

  2. The evidence discloses that the Federal Council of the Union proposes to meet on 4 and 5 December 2018 to consider charges which are said to be brought under the rules of the Union. The particular rule of the Union which has been invoked against the applicant, on its face, authorises expulsion or alternatively suspension from membership of the Union as a permissible sanction.

  3. The applicant brings this proceeding seeking interim and final relief under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act). Before me is an urgent application which, as originally framed, sought orders (inter alia) that the respondents perform and observe the Rules of the Union by treating as null and void the calling of a special meeting of the Federal…

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AGLC
Conway v Fernandez [2018] FCA 1949
Case
[2018] FCA 1949
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court, Conway applied for interlocutory relief under the Fair Work (Registered Organisations) Act 2009 (Cth) against Fernandez and others. Conway is the Federal President of the Australasian Meat Industry Employees Union, and Fernandez is the Secretary of the New South Wales Branch. Conway applied for an injunction to prevent Fernandez and others from proceeding with a Federal Council meeting to consider charges against Conway for allegedly using abusive language on two occasions. Conway sought to enjoin the hearing of the charges on the basis that the meeting had not been properly convened, and that he had not been given fair notice of the particulars of the charges and procedures to be adopted. Conway also argued that the charges could not be heard by the Federal Council because he was an officer of the Union.

The court was required to decide whether Conway had established a prima facie case that the Federal Council meeting had not been properly convened, and whether Conway had been denied procedural fairness. The court was also required to decide whether the charges against Conway could be heard by the Federal Council, and whether Conway had taken reasonable steps to resolve the matter within the Union.

The court found that Conway had established a prima facie case that the Federal Council meeting had not been properly convened because there was no evidence that the New South Wales Branch had resolved to requisition the meeting. The court found that Conway had been denied procedural fairness because he had not been given fair notice of the particulars of the charges and procedures to be adopted. The court found that the charges against Conway could be heard by the Federal Council, but that Conway had taken reasonable steps to resolve the matter within the Union. The court granted Conway the relief he sought on the basis that the detriment he might suffer if the meeting proceeded outweighed the respondents’ interest in proceeding with the meeting. The court ordered that Fernandez and others be enjoined from proceeding to hear and determine the charges against Conway until the hearing and determination of the proceeding or further order. The court also ordered that the proceeding be listed for case management.

In Conway v Fernandez, the Federal Circuit Court granted Conway the interlocutory relief he sought. The court found that Conway had established a prima facie case that the Federal Council meeting had not been properly convened, and that Conway had been denied procedural fairness. The court granted Conway the relief he sought on the basis that the detriment he might suffer if the meeting proceeded outweighed the respondents’ interest in proceeding with the meeting. The court ordered that Fernandez and others be enjoined from proceeding to hear and determine the charges against Conway until the hearing and determination of the proceeding or further order. The court also ordered that the proceeding be listed for case management.

Orders

Orders of the court

1. Upon the applicant giving the usual undertaking as to damages, and pursuant to s164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth), until the hearing and determination of this proceeding or further order, the respondents be enjoined from proceeding to hear and determine the charges contained in the summons sent to the applicant on 20 November 2018.

2. There be liberty to any party to apply on 3 days’ notice to have the proceeding listed for an interlocutory hearing.

3. The proceeding be listed for case management on 18 December 2018 at 10.15 am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On the hearing of the application, the applicant relied additionally upon two affidavits of the applicant’s solicitor affirmed 3 December 2018. The first respondent tendered, and I received into evidence, an email dated 20 November 2018 together with attachments from Kristen Rogers, the National Industrial Officer of the Union, to the applicant, the first respondent, and a number of others.BACKGROUND The applicant stated that he has been a full-time official of the Union for a period of 21 years. He is currently Secretary-Treasurer of the Victorian Branch, and became Federal President of the Union in September 2018. The Union is an organisation of employees which is registered pursuant to the RO Act, and it is governed by the Rules of the Australasian Meat Industry Employees Union (Rules). On 27 September 2018, Jason Schultz, an Industrial Officer of the New South Wales Branch of the Union, wrote an email to the second respondent, Graham Smith, as Federal Secretary of the Union, seeking to charge the applicant and Mr Smith under rule 35 of the Rules. The email stated that it was “[f]iled on behalf of State Secretary Patricia Fernandez”, who is the first respondent. The email requested that an extraordinary Federal Council be convened as a matter of urgency to consider the charges. A table was attached to the email which identified six charges which alleged (inter alia) that the applicant had used abusive language at a Federal Council dinner on 13 September 2018, and on another occasion at a Federal Executive Meeting on 8 March 2018. On 20 November 2018, the National Industrial Officer of the Union sent to the applicant by email a document described as a “Summons” stating that he was summoned to attend a meeting of the Federal Council of the Union to respond to charges made by the first respondent. Some details of the charges were set out in the document. The document stated that the applicant was summoned to show cause. The document stated that it was anticipated that the meeting would take place on Wednesday 5 December 2018. On 20 November 2018, the National Industrial Officer also sent the email that I received into evidence, that was sent to the applicant, the first and second respondents, and others. The email had a number of attachments, including a memorandum to the Federal Executive concerning Federal Council procedures, noting that the progress of the matter was ultimately for the Federal Executive and the Federal Council to decide. The memorandum had attached to it a table in the form of a checklist of issues relating to process and procedure. On 23 November 2018, the applicant wrote to the first respondent proposing a mediation of the matters in dispute. This proposal was rejected by email from Jason Schultz of the New South Wales Branch dated 26 November 2018. By letter dated 27 November 2018 from the applicant to the second respondent as Federal Secretary, the applicant sought information in relation to the process and procedures for the hearing. The applicant also requested, in relation to each of the six charges, further information and particulars.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I consider that it is arguable on a prima facie basis, and without hearing full argument, that in the context of the Rules, a decision by a branch to requisition a special meeting of the Federal Council must be made by resolution of the Branch Committee of Management. The evidence suggests that the South and Western Australian Branch has so resolved. However, there is no specific evidence that the New South Wales Branch, or the Queensland Branch has so resolved. The lawyers for the applicant wrote to the lawyers for the first respondent by email dated 30 November 2018 requesting evidence that a resolution was passed by the New South Wales Executive requisitioning a meeting of the Federal Council pursuant to rule 13.7. The first respondent is the Secretary of the New South Wales Branch, and was represented before me at the hearing. The first respondent has not produced any direct evidence that the New South Wales branch resolved to requisition the special meeting. In the circumstances, and in the absence of full argument, I consider that the applicant has a prima facie case that the special meeting has not been requisitioned by at least three branches in accordance with rule 13.7.CONCLUSION I consider that within the context of what has occurred, and having regard to the issues that the applicant has raised, that the applicant has taken reasonable steps to have the issues resolved within the Union. I take into account that expulsion from membership of the Union may have serious consequences for the applicant. The applicant’s office with, and employment by the Union are the sources of his standing and livelihood. I consider that the applicant has raised a sufficiently strong prima facie case which, when taken together with the detriment that he might suffer, favours the granting of an interim order. There was argument before me as to whether the applicant should give an undertaking as to damages. The first respondent did not request an undertaking. There is authority to the effect that an undertaking is not necessary in relation to the granting of an interim order under s 164 of the RO Act. However, that consideration has greater force when interim orders are in the nature of directions which are of a mandatory nature and which may be the product of full argument. In this case, where the application has been brought at short notice, where there has been only informal service of the respondents, and where only one respondent appeared, I consider it appropriate that the applicant give an undertaking as to damages as a condition of the interim order. Therefore, upon the applicant giving the usual undertaking as to damages, I will order -Upon the applicant giving the usual undertaking as to damages, and pursuant to s164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth), until the hearing and determination of this proceeding or further order, the respondents be enjoined from proceeding to hear and determine the charges contained in the summons sent to the applicant on 20 November 2018.

Ratio Decidendi

Legal Principle Established

The first respondent submitted first, that I should require the applicant to give an undertaking as to damages as a condition of interim relief. The first respondent also submitted that –(a)the application was premature, because the Federal Council was due to meet on 4 December 2018 to consider issues of process and procedure, and that the 20 November 2018 email was evidence that some thought and preparation had been given to those issues ahead of the Federal Council meeting;(b)the applicant had not taken reasonable steps for the purposes of s 164(3) of the RO Act to resolve the matter within the organisation;(c)there was nothing in rule 35.1 which excluded a charge being brought under that rule against a federal councillor;(d)by reference to what was said by Dixon J in Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601 at 631, members of the Federal Council were entitled to act on their own knowledge of the alleged events;(e)14 days’ notice of the meeting had been given, because the meeting to consider the charges remained scheduled for 5 December 2018; and(f)I had not been referred to any rule that provides that branches must requisition a special meeting of the Federal Council by a resolution of the Branch Committee of Management.CONSIDERATIONDenial of procedural fairness I accept that the applicant has an arguable case that he has been denied procedural fairness. It is fairly arguable that under the Rules it is only the Federal Council itself that has authority to summon the applicant to show cause, to determine what particulars of the charge are necessary, and to determine its procedures. On the evidence, at least some of this appears uncontroversial, and the evidence is that the Federal Council proposes to meet on 4 December 2018 for the purpose of determining matters of procedure. In my view, given the gravity of the remedy foreshadowed to the applicant, namely expulsion of the applicant from membership of the Union, it is arguable that procedural fairness requires that the applicant be given fair notice of the particulars of the charges that he faces, and the procedures to be adopted by the Federal Council, and that such information be given to him with the authority of the Federal Council. In my view it is arguable that notice of 24 hours or less does not give the applicant a fair opportunity to consider this information before the meeting proposed on 5 December 2018 to which the applicant has ostensibly been summoned to show cause.Can rule 35.1 be invoked to remove the applicant from office? I am not persuaded, on the argument advanced thus far, that the applicant has a strong case that rule 35.1 cannot be invoked to expel him from membership with the potential consequence that he is also thereby unable to hold office. The problem confronting such an argument is that the text of rule 35.1 appears to permit such a course, and does not draw any distinction between ordinary members, and officer holders. Whether an officer holder who has been expelled as a member may continue to hold office having regard to the terms of rule 48 set out above is not an issue that directly arises, and I express no opinion about it. As the matter has not been argued fully, I say no more about the applicant’s second ground other than to say that, at present, I am not persuaded that the argument is strong.Members of Federal Council who witnessed the alleged events