Copeland, R. v Ludwig, W.P.
[1994] FCA 64
•24 FEBRUARY 1994
ROGER COPELAND, GEOFFREY SUTTON and NICK MINOSKI v. WILLIAM PATRICK LUDWIG and
OTHERS
No. VI66 of 1993
FED No. 64/94
Interim Orders
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
KEELY J
CATCHWORDS
Interim Orders - amendments to Union rules to change offices from "full time" to "honorary" - serious question re whether amendments valid - balance of convenience.
HEARING
MELBOURNE, 21 February 1994
#DATE 24:2:1994
Solicitors for the applicants: Howie and Maher
Counsel for the applicants: Mr D. Staindl
Solicitors for the respondents: McClellands
Counsel for the respondents: Mr M. Sweeney S.C.
ORDER
THE COURT ORDERS THAT:
Until the further hearing and determination of this matter or until further order the first to fortieth respondents perform and observe the rules of the AWU-FIME Amalgamated Union ("the Union"):
1. By permitting and taking all necessary steps to ensure that each of the Secretary, Organisers and each of the members of the Executive of the Victorian Sub-Branch of the Building Construction and Joinery Branch of the Union ("the Sub-Branch") are able to perform the duties and functions of their respective offices in accordance with the rules of the Union.
2. By taking all necessary steps to ensure that in accordance with the terms of the office of Sub-Branch Secretary held by Roger Copeland, the Union pays to Roger Copeland the salary and emoluments of his office in the sum of $968.00 per week, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the Union.
3. By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Geoffrey Sutton the Union pays to Mr Sutton the salary and emoluments of his office in the sum of $886.00 per week, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the Union.
4. By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Nick Minoski the Union pays to Mr Minoski the salary and emoluments of his office in the sum of $886.00 per week, payable since 22 November 1993, until such time as the office is terminated in accordance with the Rules of the Union except to the extent that amounts equal to that weekly amount have already been paid to Mr Minoski either by way of workers' compensation weekly payments or by way of additional amounts already paid by the Union in order to make the total weekly amount received by him equal to the salary and emoluments payable to him by the Union in respect of his office.
5. By treating as null and void any purported decision to remove or dismiss Roger Copeland or Geoffrey Sutton or Nick Minoski from their respective office as Secretary and Organisers of the Sub-Branch respectively.
AND THE COURT DIRECTS THAT:
i. That the applicants make, file and serve:
(a) any further affidavits upon which they seek to rely; and
(b) their contentions of fact and law;
by 7 March 1994.
ii. That the respondents make, file and serve:
(a) any affidavits upon which they seek to rely;
(b) their contentions of fact and law;
(c) an affidavit of documents;
by 21 March 1994.
iii. That the applicants make, file and serve any affidavits in reply by 28 March 1994.
iv. That liberty to apply be reserved to all parties. v. That this matter be adjourned to a directions hearing on 11 April 1994.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
KEELY J On 24 December 1993 Jenkinson J. made an order calling upon the respondents to show cause why the following orders should not be made:
"1. The Respondents appear before the Federal Court of Australia at 450 Little Bourke Street, Melbourne in the State of Victoria on the 7th day of February 1994 at 10.15am to show cause why on the grounds set forth in the Affidavit of Roger Allen Copeland sworn 23 December 1993 and filed herein the following orders should not be made:
(a) The First to Fortyfirst Respondents perform and observe the Rules of the AWU-FIME Amalgamated Union ("the Union") by permitting and taking all steps to ensure that each of the Secretary, Organisers and each of the members of the Executive of the Victorian sub-Branch of the Building Construction and Joinery Branch of the Union ("the Sub-Branch") are able to fully perform the duties and functions of their respective offices in accordance with the Rules.
(b) The First to Fortyfirst Respondents perform and observe the Rules of the Union by taking steps to ensure that in accordance with the terms of the office of Secretary held by Roger Copeland, the Union pays to Roger Copeland the salary and emoluments of his office in the sum of $968.00 per week, until such time as the office is terminated or terminates in accordance with the Rules of the Union.
(c) The First to Fortyfirst Respondents perform and observe the Rules of the Union by taking all steps to ensure that in accordance with the terms of the office of Organiser held by each of Geoffrey Sutton and Nick Minoski the Union pays to each of Mr. Sutton and Mr. Minoski the salary and emoluments of their respective offices in the sum of $886.00 per week until such time as either respective office is terminated or terminates in accordance with the Rules of the Union.
(d) Further or in the alternative, the Union, its servants and/or agents treat as null and void any purported decision to remove and/or dismiss Roger Copeland and/or Geoffrey Sutton and/or Nick Minoski from their respective positions of Secretary and Organiser of the Sub-Branch.
(e) Such further or other Orders as to the Court seem fit."
The applicants are members of and office-holders in the AWU-FIME Amalgamated Union ("the Union"), which is the last named respondent. The first applicant, Mr Copeland, is the Secretary of the Victorian Sub-Branch of the Building Construction and Joinery Branch of the Union ("the Sub-Branch") and the second and third applicants, Mr Sutton and Mr Minoski, are organisers of the Sub-Branch. Each applicant is an elected office-holder and has been since an election in the Federation of Industrial, Manufacturing and Engineering Employees ("FIME"). The results of that election were declared on 17 June 1993 i.e. before the Union became a registered organisation under the Industrial Relations Act 1988 ("the Act") on or about 1 November 1993 as a result of the amalgamation of the Australian Workers Union ("AWU") with FIME.
By letter dated 19 November 1993 the respondent Arthur Harper, as National Vice-President, wrote to "Branch Secretaries and Sub-Branch Secretaries - Building Construction and Joinery Branch" as follows:
"As you are aware, the Australian Industrial Relations Commission has determined to remove the ability of the union to enrol carpenters in the building and construction industry (with the exception of government and local government employees).
In addition to commercial building and construction, the decision of Deputy President MacBean also applies to the ability of the union to enrol carpenters in the housing and civil sectors of the industry."
On the same date the respondent Steven Harrison, as National Secretary, wrote to Mr Copeland as follows:
"After hearing my presentation of a report, which covered aspects of Deputy President MacBean's decision on the Building and Construction Industry, the National Executive of the union, at its meeting held in Sydney from November 15-19, 1993, carried the following resolution unanimously: "As Conference is not sitting, this National Executive deems it necessary and expedient to amend the Rules of the union so that Rule 38 (p) shall be amended so that all offices mentioned therein (with the exception of Branch Secretary) shall be honorary offices." In my report I stressed the fact that Deputy President MacBean made some criticism that the structure of the Building, Construction and Joinery Branch was ineffective and unrepresentative within the Building Industry. It is unfortunate that I have to inform you, as a result of the decision carried unanimously by the National Executive, that your position is an honorary position and that full-time employment with the union will no longer be available to you.
I wish to place on record my appreciation of your services to the organisation during a most difficult period. A redundancy package will be made available to you and Arthur Harper and Mick Hindle will be in contact with you regarding this package during next week."
Rule 80 of the Union's rules, which appears under the heading "Section 2 - Amalgamation Rules", included the following provisions:
" RULE 80 - ENABLE TO HOLD OFFICE PROVISION 2 (AWU AND FIME)
(1) This Rule shall prevail over any conflicting provisions in any other Rule during the period from amalgamation day until the 30th June, 1997. . . .
(5) The holders of Office in the AWU and the FIME shall, on amalgamation day, assume an Office in the Union in accordance with the following schedule:
(a) The organisation in which the Office is held as at the day before amalgamation day is set out in Column 1.
(b) The Office existing as at the day before amalgamation day is set out in Column 2.
(c) The Office in the Union that will be occupied on and from the amalgamation day is set out in Column 3. . . .
(d) The term of Office of the Office set out in Column 3 shall expire on the date set out in Column 4.
(e) . . .
(6) . . .
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4< . . .
BUILDING, CONSTRUCTION AND JOINERY BRANCH FIME Each existing All Branch and 30/6/1997" Branch and Sub-Branch Officers Sub-Branch retain their Office Office in AWU-FIME
It was accepted by the respondents' counsel that (1) each of the applicants still holds the office held by him since "amalgamation day" in accordance with rule 80 (5); (2) each applicant has an entitlement to hold that office until 1997; (3) the applicants are permitted to carry out the duties of their respective offices but counsel pointed out that the duties are not defined in the rules; (5) full time officers of the Union were entitled to be paid a salary and that in order to take away that entitlement it was necessary to amend the rules; and (6) referring to a submission by the applicants' counsel, that it would follow from the respondents' submission that any registered organisation of employees, which had power under its rules to amend its rules, would be able to remove the salary entitlement of (say) its full time Federal Secretary simply by a rule amendment which deleted the words "full time" and inserted "honorary" in its place - provided only that that action of amending the rule was bona fide.
The evidence showed that on 16 February 1994 the Industrial Registrar certified, under s.205(1) of the Act, "alterations to rule 38" of the Union's rules. The evidence did not establish the precise wording of the amendment. Rule 38 of the Union's rules, as it appeared before the amendment, included the following:
"(p) Building Construction and Joinery Branch . . .
There shall be a Victorian Branch Sub-Branch Executive comprising the following:
- One Sub-Branch President (honorary) - One Sub-Branch Secretary (full time) - One Sub-Branch Assistant Secretary (honorary) - Three Sub-Branch Organisers (full time) - Five Sub-Branch Committeemen (honorary)"
It appeared to be accepted by counsel for the parties that the amendments certified on 16 February 1994 deleted the words "(full time)", which appear twice in the passage quoted above from rule 38(p), and substituted the word "(honorary)" in each case.
In his address the respondents' counsel said :
"My submission is that the national executive had the power to alter the rules. It did so with the requisite majority and in my submission that amendment of the rules came into effect by virtue of section 205 of the Act when it was certified by the registrar on 16 February. My submission is that on and from that date positions held by the three applicants were honorary positions and that that was a result permitted by the rules and in my submission required by the very bad position of the Victorian sub-branch."
In my opinion there is a serious question to be tried as to whether the Union, acting through its National Executive, had power to alter rule 38(p) in such a way that the holders of the offices of Sub-Branch Assistant Secretary and Sub-Branch Organiser respectively were deprived of their entitlement to a salary in respect of that office.
There are at least two arguments that could be advanced in support of that proposition. First, it appears to be strongly arguable that the material provisions of rule 80, which are set out earlier, entitle the three applicants to remain in their full time offices until 1997. Each of those offices was a "full time" office and it has been conceded (correctly, in my opinion) that full time officers are entitled to be paid a salary. Rule 80 is expressly stated "to prevail over any conflicting provisions in any other Rule during the period from amalgamation day until 30th June 1997". It is seriously arguable that rule 80 must prevail over the amendment certified on 16 February 1994 ("the amendment") because the amendment purported to remove the right, conferred on the applicants as office-holders, to occupy those full time, salaried offices from the amalgamation day until 30 June 1997.
Second, it is seriously arguable that, on a correct analysis of rule 38(p), as amended, the amendments were not merely amendments to the title or description of each office but in substance and in fact abolished the office of "One Sub-Branch Secretary (full time)" and the offices of "Three Sub-Branch Organisers (full time)" and created four new offices, each of which was "honorary". There is no basis upon which the court could infer that the duties and responsibilities of the four new "honorary" offices would be the same as those of the four "full time" offices in existence immediately before the amendments. The abolition of those four offices would be arguably (1) contrary to s.195(1)(c) of the Act in that it constituted "the removal from office" of the holders of the offices, who had not been "found guilty under the rules . . . of (one or more of the matters specified in s.195(1)(c))"; (2) contrary to s.196(c) of the Act in that it imposed on members of the Union "conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust"; and (3) contrary to rule 20(6)(iii).
As to (1) above, it was said in Roughan v Day (1991) 32 FCR 581 at 586 that:
"there is a decision of the Australian Industrial Court to the contrary (Dunphy and Evatt JJ - St John J dissenting) in Saint v Australian Postal and Telecommunications Union (1976) 30 FLR 385. On the other hand that decision is not binding upon this Court, and it may be arguable that the majority opinion was not correct in law."
As to (2) above, it was said in Roughan v Day that:
" . . . the following passage from the reasons for judgment of Spicer CJ and Eggleston J in Davis v Pulp and Paper Workers Federation of Australia (1963) 8 FLR 277 at 280-281 might be relevant:
"The rule of construction against retrospective operation which applies to statutes does not, of course, directly apply to the rules of an organisation. But the rule applicable to statutes is based on the presumption that the legislature does not intend what is unjust (see Doro v Victorian Railways Commissioners (1960) VR 84 at 86) and somewhat similar considerations must apply to the construction of the rules of an organisation such as this, particularly where the injustice of the rule may be a statutory ground of invalidity. In our opinion, it would lead to injustice to apply the rule retrospectively . . . " (Emphasis added).
. . . In Re Mellor's Application (1987) 17 FCR 120 at 124 Gray J cited that passage from Davis (supra) and later said: "Indeed, it might be said that in the present case retrospective operation of branch r 16 may be such as to overturn accrued rights". "
The respondents sought to rely on the decision of the Full Court in Roughan v Coulson and Ors (1982) 3 IR 393. Although the reasons for judgment of Smithers J. in that case may assist the present respondents, the reasons for judgment of St John and Northrop JJ seem to be to the contrary. Their Honours said (at 397-398):
"The appellant contended that the committee of management had no power to abolish particular offices during the period for which office bearers had been elected to hold those offices, or alternatively, that the effect of the resolution was to remove from office officers who had not breached r. 58 of the rules, which reproduced the relevant provisions of s. 133 of the Act limiting the power of the organization to dismiss from office except upon specified grounds. For the personal respondents, it was contended that the effect of the resolution was to abolish offices and not to remove from office within the meaning of s. 133 of the Act and that the rules, and in particular sub-r. 55(d)(1), authorised the abolition of such offices by the committee of management. . . .
In any event, even if what the respondents contend for were correct, that the sub-rule authorises the abolition of offices, it does not go so far as to allow the committee to select, on whatever basis, individual organizers to have their office terminated. . . . It would appear to fly in the face of the rules relating to elections if it were the position that, under the sub-rule, the committee could abolish the offices held by the organizers receiving the largest number of votes. All these factors convince us that, on a proper interpretation, it is the employment of organizers under a contract of employment which the committee may terminate in order to decrease the number employed, which is the object of the sub-rule."
In Roughan v. Day (supra) the Full Court did not have to consider any contention that the rule was contrary to s.195(1)(c) or s.196 of the Act, as was pointed out in the following passage (at 586):
" . . . as the respondents pointed out in their outline of submissions, it "is not argued or contended by the Appellant in this matter that the rule is contrary to the Act". Accordingly, it should be understood that I am not expressing any opinion (nor was the learned primary judge) as to whether the rule amendments made in September 1990 were contrary to law, eg under s 196 or by reason of the provisions in s 195(1)(c) of the Industrial Relations Act 1988 (Cth) (the Act). It follows that in my opinion the dismissal of the appeal would not prevent a challenge, under s 208 of the Act, to the validity of the altered Rules (ie, if the Industrial Relations Commission decides to dismiss the appeal against the Industrial Registrar's decision to certify the rule alterations). It was not open to the present appellant to make such an application at the time of instituting the proceedings before Wilcox J, because the alterations to the Rules had not been certified by the Industrial Registrar and accordingly were not part of the Union's Rules."
It may be added that the last sentence in that passage is applicable to the present applicants. It was not open to them to make an application under s.208 of the Act at the time of instituting the proceedings before Jenkinson J on 24 December 1993; that was so because the amendments to rule 38(p) had not been lodged with the Industrial Registrar until 17 January 1994 and had not been certified by the Industrial Registrar until 16 February 1994 and accordingly were not part of the Union's rules.
As to the balance of convenience, on the affidavit material before the court I am satisfied that the balance of convenience favours the making of interim orders.
In my opinion the applicants have made out a case for the making of orders. It will be noted that the interim orders to be made differ somewhat from those sought. Assuming, without deciding, that there is power to make orders against the Union I doubt that it is necessary to do so. The orders will be as follows:
That until the further hearing and determination of this matter or until further order the first to fortieth respondents perform and observe the rules of the AWU-FIME Amalgamated Union ("the Union"):
1. By permitting and taking all necessary steps to ensure that each of the Secretary, Organisers and each of the members of the Executive of the Victorian Sub-Branch of the Building Construction and Joinery Branch of the Union ("the Sub-Branch") are able to perform the duties and functions of their respective offices in accordance with the rules of the Union.
2. By taking all necessary steps to ensure that in accordance with the terms of the office of Sub-Branch Secretary held by Roger Copeland, the Union pays to Roger Copeland the salary and emoluments of his office in the sum of $968.00 per week, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the Union.
3. By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Geoffrey Sutton the Union pays to Mr Sutton the salary and emoluments of his office in the sum of $886.00 per week, payable since 22 November 1993, until such time as the office is terminated in accordance with the rules of the Union.
4. By taking all necessary steps to ensure that in accordance with the terms of the office of Organiser held by Nick Minoski the Union pays to Mr Minoski the salary and emoluments of his office in the sum of $886.00 per week, payable since 22 November 1993, until such time as the office is terminated in accordance with the Rules of the Union except to the extent that amounts equal to that weekly amount have already been paid to Mr Minoski either by way of workers' compensation weekly payments or by way of additional amounts already paid by the Union in order to make the total weekly amount received by him equal to the salary and emoluments payable to him by the Union in respect of his office.
5. By treating as null and void any purported decision to remove or dismiss Roger Copeland or Geoffrey Sutton or Nick Minoski from their respective office as Secretary and Organisers of the Sub-Branch respectively.
Having considered the submissions of the parties on the directions sought by the applicants as to the future conduct of the litigation, I have decided to make the following directions:
i. That the applicants make, file and serve:
(a) any further affidavits upon which they seek to rely; and
(b) their contentions of fact and law; by 7 March 1994.
ii. That the respondents make, file and serve:
(a) any affidavits upon which they seek to rely;
(b) their contentions of fact and law;
(c) an affidavit of documents;
by 21 March 1994.
iii. That the applicants make, file and serve any affidavits in reply by 28 March 1994.
iv. That liberty to apply be reserved to all parties. v. That this matter be adjourned to a directions hearing on 11 April 1994.
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