Fegan v Jackson

Case [2009] FCA 319

FEDERAL COURT OF AUSTRALIA

Fegan v Jackson [2009] FCA 319

INDUSTRIAL LAW – organisations – special general meeting called under rules of the union – whether interim orders should be granted to cancel or adjourn the special general meeting – whether a serious question that the challenged rules are invalid as contravening s 142 of Schedule 1 to the Workplace Relations Act 1996 (Cth) as being oppressive, unreasonable or unjust – whether balance of convenience favours grant of interim orders – application refused

PRACTICE AND PROCEDURE – test to be applied on an application for interim orders

Workplace Relations Act 1996 (Cth) ss 5(1), 5(2), 5(3), 142, 163, 164, 164A, 164B of Schedule 1

R v Joske; ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 referred to
Allen v Townsend (1977) 31 FLR 431 cited
McGee v Sanders (No 2) (1991) 32 FCR 397 referred to
Conquo v Jackson [2009] FCA 45 referred to
Moffitt v The Vehicle Builders Employees’ Federation of Australia (1985) 11 IR 174 referred to
Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 referred to
Griffiths v Ansett Pilots Association [2001] FCA 1215 discussed
Hodder v Australian Workers’ Union (1985) 9 FCR 498 cited
Lawley v Transport Workers’ Union of Australia  (1987) 22 IR 114 cited
Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 cited
Gordon v Carroll (1975) 27 FLR 129 cited
Boland v Munro (1980) 48 FLR 66 cited
Scott v Jess (1984) 3 FCR 263 cited

PAULINE FEGAN v JEFF JACKSON and HEALTH SERVICES UNION

VID 186 of 2009

KENNY J
6 APRIL 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 186 of 2009
BETWEEN:

PAULINE FEGAN
Applicant
AND:

JEFF JACKSON
First Respondent

HEALTH SERVICES UNION
Second Respondent

JUDGE:

KENNY J

DATE OF ORDER:

6 APRIL 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The interim orders sought by the applicant be refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 186 of 2009
BETWEEN:

PAULINE FEGAN
Applicant
AND:

JEFF JACKSON
First Respondent

HEALTH SERVICES UNION
Second Respondent

JUDGE:

KENNY J

DATE:

6 APRIL 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant, Pauline Fegan, brings this proceeding as President of Victoria No. 1 Branch of the Health Services Union, and a member of the Union. The first respondent, Mr Jeff Jackson, is the Branch Secretary of Victoria No. 1 Branch. Ms Fegan seeks interim orders pursuant to ss 163 and/or 164 of Schedule 1 to the Workplace Relations Act 1996 (Cth) requiring Mr Jackson to cancel the special general meeting called by him for 8 April 2009 and to give notice of such cancellation to all members of Victoria No. 1 Branch. Alternatively, Ms Fegan seeks an order adjourning the…

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Details
AGLC
Fegan v Jackson [2009] FCA 319
Case
[2009] FCA 319
Decision Date

CaseChat Overview and Summary

The applicants in this case, Fegan and another member of the Union, sought an urgent interim injunction to restrain the respondents, including the National Secretary of the Union and the Branch Secretary, from proceeding with a Special General Meeting of the Union branch scheduled for 8 April 2009. The dispute arose from allegations that the Branch Secretary had not properly notified all delegates of the meeting, as required by the Union’s rules, and that the Branch Committee had failed to adequately address this issue. The applicants argued that the rules governing the Union were oppressive, unreasonable, or unjust and that the meeting should not proceed until the issue of proper notice was resolved.

The court was required to determine whether the applicants had raised a serious question regarding the validity of the Union’s rules under s 142(1)(c) of Schedule 1 to the Workplace Relations Act 1996 (Cth), which states that a union’s rules must not be oppressive, unreasonable, or unjust. The applicants contended that the rules did not provide adequate safeguards for the control of the Branch Committee by the members and that the failure to provide proper notice to all delegates constituted an unreasonable and unjust practice. The court needed to assess whether the applicants had demonstrated that the rules, or their application, were indeed oppressive, unreasonable, or unjust in a manner that warranted an interim injunction.

In considering the application, the court examined the Union’s rules and the circumstances under which they operated. The court noted that the reasonableness of the rules must be evaluated based on practical considerations, including the number of members, their geographic distribution, and the nature of their work. The court found that the applicants had not provided sufficient evidence to demonstrate that the rules were oppressive, unreasonable, or unjust in a way that would warrant an interim injunction. The court also highlighted that there was no evidence suggesting that the applicants or other members would suffer significant prejudice if the meeting proceeded, whereas there would be substantial prejudice to the Union and the petitioners if the meeting were delayed.

Accordingly, the court refused the interim orders sought by the applicants. The court concluded that the applicants had not established a serious question regarding the invalidity of the Union’s rules and that an interim injunction was not warranted in the circumstances. The applicants’ argument that the rules failed to provide for proper notice to delegates was not substantiated to the extent necessary to justify an interim injunction.

Orders

Orders of the court

1. The interim orders sought by the applicant be refused.

Note:

Background

Background to the litigation

The applicant relied on her own two affidavits affirmed on 26 March 2009 and 31 March 2009. The respondents relied on three affidavits of Katherine Jackson, who is the National Secretary of the Union, one affirmed on 30 March 2009 and two on 31 March 2009.BACKGROUND For present purposes, the facts can be taken to be as follows:(1) The Branch has approximately 15,500 members across Victoria. Approximately 40% of these members work in rural and regional areas at a significant distance from Melbourne. Many members work in the outer suburbs of Melbourne. Many members also work shift work. (2)There is a dispute within the Branch at Branch Management level. The parties disagree about the origins of the dispute and the precise identity of all the disputants.(3)In her first affidavit, Ms Jackson states:I am informed by Jeff Jackson … that around 4 and 5 March 2008 a petition was circulated to members of the Victoria No 1 Branch of the [Union] seeking that a meeting of members be held to overturn certain decisions of the Branch Committee of Management and to consider other matters. On or about 5 March 2009, the petition was presented to Mr Jackson, in his capacity as Branch Secretary of the [Branch], requesting that a Special General Meeting of the [Branch] be called.(4)On or around 5 March 2009 Mr Jackson, as Branch Secretary, sent a notice to all members of the Branch that a special general meeting was to be held on 8 April 2009 at Dallas Brooks Hall in East Melbourne at 6.30 pm. (5)In her first affidavit, Ms Jackson said:The SGM Notice was mailed to all delegates (some 800 members) by Express Post and to all other members of the [Branch] by ordinary mail. …I am informed by Sam Kelly, an employee of the [Union], that the costs involved in distributing the SGM Notice include the cost of postage to the 15,449 members of the branch of approximately $11,300. A deposit of $2,500, which I understand to be non-refundable, has been paid for the use of the Dallas Brooks Hall on 8 April 2009.In her second affidavit, Ms Fegan stated that, as a Branch member, she had not received the notice and that she had been informed by some delegates that they too had not received the notice. (The rules of the Union required that notice be given to delegates: rule 62(c).) (6) At a meeting on 13 March 2009, the Branch Committee passed a resolution to the following effect:The Branch Committee notes that the Branch Secretary has called a special general meeting of the Branch on Wednesday, 8 April 2009 at 6.30 pm. So that the Branch Committee can satisfy itself that the petition to hold a special general meeting that the Branch Secretary has relied on is valid, the Branch Committee directs the Branch Secretary to produce to all members of the Branch Committee by 5.00 pm Tuesday, 17 March 2009:(a) the petition containing the signatures that he relied on to call the special general meeting on 8 April 2009; and(b) a list of all financial members of the Victoria No. 1 Branch as at 16 March 2009 including their full name and work place. This resolution was passed unanimously. (7)Mr Jackson did not provide a copy of the petition and list of members until 23 March 2009.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KENNY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

Counsel for the Union adopted Mr Jackson’s submissions. He also submitted that there was no evidence that the applicant (or anyone else) would suffer prejudice if the Meeting went ahead, but there would be prejudice to the Union and the petitioners if it did not. Counsel for the Union emphasised the narrow subject matter of the proposed Meeting; the scheme of the Rules in this present context; and the notice requirements.CONSIDERATION There is little dispute about what is intended by the words “oppressive, unreasonable or unjust”. In Moffitt v The Vehicle Builders Employees’ Federation of Australia (1985) 11 IR 174 at 175, a Full Court adopted the meaning given by Deane J to these words in Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 at 165, where his Honour said:Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful … To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play …In effect, the applicant argued that the rules under challenge are oppressive, unreasonable or unjust because they fail to make proper provision for the control of the Branch committee by the members as opposed to a clique of members. The first question is: has the applicant raised a serious question as to whether the particular rules under challenge, or the rules in combination, are invalid as contravening s 142(1)(c) of Schedule 1 as being oppressive, unreasonable or unjust in the manner outlined? Particularly in support of the submission that rule 62 did not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend, counsel for the applicant relied on Griffiths v Ansett Pilots Association [2001] FCA 1215, in which Ryan J said, at [9]:It is common ground that the control provided for by the rules must be available in a practical sense and must not be susceptible to obstruction or unreasonable delay by the committee concerned. The related general observation can be made, in this context, that the reasonableness of the rules of an organisation, within the meaning of s 196 of the Act, is to be measured by what is practicably achievable under the rules in the actual circumstances in which they operate. (Section 196 was a precursor to s 142 of Schedule 1. ) Ryan J continued, at [10]:The circumstances to which I referred in the last paragraph, or “extrinsic facts” as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged.This principle derives from such authorities as Hodder v Australian Workers’ Union (1985) 9 FCR 498, at 502 per Pincus J, approved in Lawley v Transport Workers’ Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59; and Gordon v Carroll (1975) 27 FLR 129, at 173 per Smithers, Woodward and St John JJ.