Finance Sector Union of Australia

[2016] FWCD 1492

[2016] FWCD 1492

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Finance Sector Union of Australia
(R2015/235)
MR ENRIGHT	MELBOURNE, 1 JUNE 2016
Alteration of other rules of organisation.

[1]        On 22 October 2015 the Finance Sector Union of Australia (the Union) lodged with

the Fair Work Commission (the Commission) a notice and declaration setting out particulars

of alterations to the rules of the Union.

[2]        The particulars set out alterations to rules 28, 29, 40, 44 and 47.

[3]        Current rule 28 outlines the National Executive’s powers and duties. The proposed

alterations authorise the National Executive to set up sub-committees and delegate its powers

(save the power to delegate) to those sub-committees. The alterations also insert two new sub

rules 28.6 and 28.7 which establish that the composition of the sub-committees are members

of the National Executive and confirm that any such sub-committees are responsible to, under

and subject to the control of the National Executive.

[4]        Current rule 29 deals with meetings of the National Executive. The alterations delete

rule 29 and insert in lieu a new rule which, among other things, directs that the National

Executive meet quarterly each year; and at other times as it determines. The proposed rule

also provides for certain periods of notice and sets out procedures for the conducting of

ballots and calling urgent meetings.

[5]        Current rule 40 deals with the office of the National Assistant Secretary. Alterations to

rule 40 include the insertion of new sub rules 40.5, 40.6, 40.7, 40.8 and 40.9. These new sub

rules, among other things, direct the National Assistant Secretary to comply with directions of

National Conference and Executive; and carry out other duties as assigned to him or her. Sub

rule 40.7 empowers the National Executive to temporarily appoint a person to the role when

the office is extraordinarily vacant. Sub rules 40.8 and 40.9 further provide that the appointed

officer shall have all the powers of the National Secretary or National Assistant Secretary as

the case may be and is entitled to nominate for the position at the next election.

[6]        Rule 44 deals with the removal of officers. The alterations amend sub rule 44.1, and

insert new sub rules 44.1A and 44.13. Proposed sub rules 44.1 and 44.1A distinguish between

charges for misappropriation, substantial breaches of rules, gross misbehaviour and neglect of

duty; and the removal from office when the officer is no longer eligible to hold that office.
[2016] FWCD 1492

Proposed sub rule 44.13 provides that an officer may be removed from the membership of the

Union where it has already been determined that an officer is to be removed from office and a

finding has been made that the officer is also of general bad character or has not complied

with the rules of the Union.

[7]        Rule 47 deals with Union elections. The alterations, among other things, delete current

sub rule 47.49.5 which allows elected officers who were removed from office to nominate for

and be nominated to fill the office from which they had been removed at the next election.

Background

[8]        It will be useful to provide a brief historical chronology of events. As I have indicated

above, the Union lodged with the Commission a notice and declaration setting out particulars

of alterations to the rules of the Union on 22 October 2015.

[9]        On 12 November 2015, Mr Rodney Masson lodged a submission objecting to the

alterations. The submission was signed by a number of individuals, including Mr Masson,

each of whom identified themselves as members of the Union. Each individual provided a

membership number. For the sake of convenience, I shall hereafter refer to this submission as

the Masson submission.

[10]      On 17 November 2015, Ms Fiona Jordan lodged with the Commission a submission

objecting to the rule alterations. In her submission, Ms Jordan identified herself as a fully

financial member of the Union and provided her membership number. Ms Jordan is also the

National Secretary of the Union.

[11]      Both Mr Masson and Ms Jordan particularised a number of objections to the proposed

rule alterations. Many of the particulars were phrased in similar, if not identical language

although different points were also raised by both objectors.

[12]      In late November 2015, Mr Masson lodged a further objection with the Commission.

The objection appeared to be identical in substance to that lodged on 12 November 2015;

however it included additional names identified as members seeking to join the objection. No

individual contact details were provided.

[13]       On 26 November 2015, Mr James Stedman of Hall Payne Lawyers (Hall Payne)

contacted staff at the Commission and advised that Hall Payne was representing the Union in

relation to this matter. Mr Stedman requested that any objections in relation to this matter be

forwarded to Hall Payne.

[14]      On 27 November 2015, a submission objecting to the alterations was received from

Mr David Scanlon. Mr Scanlon identified himself as a member of the Union and ‘an elected

[member of] LEC [Local Enterprise Council] and NEC [National Enterprise Council]’.

[15]      For the sake of convenience, I shall hereafter refer to the Masson submission, Ms

Jordan’s submission and Mr Scanlon’s submission as objections to the rule alterations; and

the objecting parties identified in the submissions as the objectors.

[2016] FWCD 1492

[16]      On 18 December 2015, Mr John Payne of Hall Payne Lawyers lodged a submission in

response to the objections outlined above. The submission responded to specific objections

outlined in the Masson, Jordan and Scanlon objections. It also raised a number of new issues,

and queried the standing of the objectors as interested parties. The Commission subsequently

forwarded the submission to the email addresses provided by each of the objectors.

[17]      On 3 February 2016, both Mr Masson and Ms Jordan lodged with the Commission a

response to the submission lodged by Hall Payne. Mr Masson also attached supplementary

material, including what appeared to be a copy of an article from The Australian newspaper

entitled ‘Axe looms for executive as Financial Sector Union feud comes to head’ dated 3

February 2016; and a document entitled ‘FSU Member Petition’. The latter was signed by 170

individuals identifying themselves as members of the Union and, among other things,

requesting that the proposed Union rule changes be rejected by the Commission.

[18]      On 19 February 2016, Hall Payne lodged a response to the submissions lodged by Mr

Masson and Ms Jordan on 3 February 2016.

[19]      On 16 May 2016, staff of the Commission wrote to Hall Payne on my behalf to ask

several questions about the proposed alterations.

[20]      Hall Payne responded to the correspondence on 20 May 2016.

Legislative Framework

[21]      Against the background set out above, I now turn to the function conferred by s.159 of

the Fair Work (Registered Organisations) Act 2009 (the Act).

[22]      Section 159 relevantly provides:

159(1) An alteration of the rules (other than the eligibility rules) of an organisation

does not take effect unless particulars of the alterations have been lodged with the FWC

and the General Manager has certified that, in his or her opinion, the alteration:

(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern

awards and enterprise agreements; and

(b) is not otherwise contrary to law; and

(c) has been made under the rules of the organisation.

159(2) Where particulars of an alteration of the rules (other than the eligibility rules)

of an organisation have been lodged with the FWC, the General Manager may, with the

consent of the organisation, amend the alteration for the purpose of correcting a

typographical, clerical or formal error.

159(3) An alteration of rules that has been certified under subsection (1) takes effect

on the day of certification.

[23]      I now consider the objections and responses from parties in relation to this matter.

[2016] FWCD 1492

Objections to the proposed alterations as a whole

[24]      As outlined above, objections were received from Mr Masson, Ms Jordan and Mr

Scanlon.

[25]      Both Mr Masson and Ms Jordan objected to the proposed changes as a whole and to

certain alterations in particular. Mr Scanlon objected to the proposed rules in general, but

made no reference to specific alterations.

[26]      Mr Masson and Ms Jordan have also argued in a general sense that the proposed rules

could be ‘used’ (or on one interpretation, misused) in such oppressive, unreasonable or unjust

ways that may circumvent the democratic functioning of the organisation.

[27]      They further submitted that the proposed alterations would impose upon members and

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applicants for membership ‘oppressive unreasonable and unjust rules’.

[28]      Both Mr Masson and Ms Jordan argued that appreciation of the political context was

essential for proper consideration of the proposed alterations. They argued that the alterations

had been drafted in response to an ‘unusual tension’ that existed between the National

Secretary and the National Executive since the National Secretary had been elected in 2014.

[29]      Mr Masson submitted:

The 2014 elections in the organisation saw an all member plebiscite for the position of

National Secretary (the first time an all-member election for the position has occurred

since amalgamation) as that role was defined and understood under the rules of the

organisation.

The incumbent National Secretary at the time ran on a ticket of support from the

Assistant National Secretary and the National President who had been elected

unopposed. Support was also openly sought and received from the Local Executive

Secretaries and other members of the then National Executive.

Despite this level of support for her opponent, the former honorary National President

Fiona Jordan, won the support of the rank and file membership and was proclaimed

elected as the National Secretary to commence her term on 1 August 2014 for a period

of 4 years. The outcome of the election was not disputed.

Although the election outcome was not disputed, the faction of those who oppose

change still command the control of the National Executive and have used this control

to frustrate the efforts at fulfilling the obligations of the National Secretary’s role and

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the mandate provided by the membership at large.

[30]      Both Mr Masson and Ms Jordan argued that the true construct of the proposed

amendments – and intent of the National Executive – was to establish new sub-committees

with the aim of usurping the powers and responsibilities of the National Secretary. They

contended that the Executive would subsequently refer its power to sub-committees made up

of factional opponents of the National Secretary who would be empowered to charge the

National Secretary and arbitrarily remove her from both office and membership.

[2016] FWCD 1492

[31]      Mr Masson and Ms Jordan further anticipated that, following Ms Jordan’s removal

from office, the National Executive would:

	[Establish]... sub-committee/s (proposed amendments to Rule 28) to circumvent,
encroach upon and/or usurp the powers and responsibilities of the member
elected National Secretary.
	[Refer] its powers to a sub-committee (proposed amendments to Rule 28) made
up of factional opponents of the National Secretary to hear a charge against the
National Secretary (probably for failing to enact a direction of Executive that ran
contrary to other standing agreements or other resolutions).
	[Determine] to remove the National Secretary not only from office, but from the
membership of the organisation (proposed amendments to Rule 44) – denying
the National Secretary the right to take the issue back to the members who
elected her and denying members of the organisation their democratic rights of

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control.

Followed by:

	The Assistant National Secretary assuming the role and all the powers of the
National Secretary pending appointment to the Casual Vacancy created by the
removal of the National Secretary and the Executive appointing an Assistant
National Secretary (proposed amendments to Rule 40 and 47) without the matter

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being determined by plebiscite of the membership.

[32]      Both objectors contended that the National Conference adopted the proposed rule

changes in the absence of proper consultation with the members of the Union.

[33]      Ms Jordan further submitted:

Seen in this context, it is hard not to conclude that there is a direct denial of

membership scrutiny of the implications of the proposed amendments. In fact, taken as

a whole, there is much to suggest a deliberate effort to remove the democratic control

of the organisation from the membership at large by concentrating power further in the

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hands of the controlling faction.

[34]      Mr Scanlon expressed concern about the manner in which the proposed rules may be

used by the National Executive in order to ‘trump up’ charges against certain officers and

arbitrarily remove them from both office and membership.

Mr Scanlon continued:

I object strongly on two counts. Firstly, as mentioned I am concerned that I will not

be able to perform my duties as an elected officer and as an FSU Rep in the workplace

for fear of the National Executive or appointed sub-committee taking a dislike to

myself and trumping up charges to dismiss me. Also, why would anyone assume the

roles if they thought that there was the chance of this being how a Union would be

run.

And secondly, as an employee in the finance industry why should I be deprived of the

opportunity of being a member of the Finance Sector Union? What sort of democratic

[2016] FWCD 1492

society, which supports freedom of speech and freedom of choice, would that be?! I,

and any others in a similar position, should be allowed the opportunity to be

represented and not have those rights taken away by those who are changing the rules

to stop freedom of speech and to stop questioning of those in a position of authority

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within the Finance Sector Union.

Hall Payne’s response to the objections

[35]      John Payne of Hall Payne Lawyers responded on behalf of the Union to the objections

of Ms Jordan and Messrs Masson and Scanlon.

[36]      In response to Mr Masson and Ms Jordan’s objections, Mr Payne submitted generally

that the objections were misconceived:

Rule alterations are made by the National Conference which is the supreme governing

body of the organisation…

The National Conference is representative of the membership and voted for by the

membership. Consequently, the National Conference is a committee of the

organisation controlled by the members.

…

The National Executive has (between sessions of the National conference) all the

powers of the FSU, other than to amend decisions of the National Conference or to

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amend the rules.

[37]      Mr Payne continued:

The National Secretary does not have absolute discretion with respect to the exercise

of a power if the National Executive gives a direction that requires a power of the

National Secretary be discharged.

Consequently, the National Secretary’s statements with respect to the National

Executive “usurping” the powers of the National Secretary derives from a basic

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misunderstanding about the governance of the organisation.

The right to lodge submissions as an interested person

[38]      Among other things, Mr Payne queried the jurisdiction of the General Manager to

inform him or herself about matters ‘beyond the application’.

Our client respectfully submits that the General Manager is not permitted under the

FW(RO)A to make broader enquiries as this is not provided for by the scheme of the

legislation. By contrast, an application to amend the eligibility rules has a specific

process for making objections. Had the legislature intended a process for objections to

rule changes (other than eligibility) prior to a decision being made, the legislation

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would have provided accordingly.

[39] With respect, I reject this submission by Mr Payne. While notifications under section

159 of the Act are not routinely subject to objections, I have previously expressed the view
[2016] FWCD 1492

that, if a person whose rights would be affected wishes to make a submission, he or she

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should, as matter of procedural fairness, be afforded the opportunity to do so.

[40]       My opinion then, as it remains now, is that this is consistent with the objects and

standards of the Act which provide for, among other things, the democratic functioning and

control of organisations; and the encouragement of members to participate in the affairs of

their organisation. Consistent with this view, I have afforded the opportunity to make

submissions in a number of previous notifications under section 159 of the Act and, in one

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matter, conducted a formal hearing to receive such written and oral submissions.

[41]      It will be clear from my expressed views that I do not consider the lack of a formal

legislated objection process fatal to this approach and I reject the inference that the Act is to

be read as prohibiting everything that it does not expressly permit.

[42] Further and in support of my approach I note that s.657(2) of the Fair Work Act (2009)

provides that:

The General Manager has power to do all things necessary or convenient to be done

for the purpose of performing his or her functions.

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[43] In Hird v CEO of the Australian Sports Anti-Doping Authority the Federal Court

considered a very similar power to s.657(2) in s.22 of the Australian Sports Anti-Doping

Authority Act 2006. The appellant contended such a power would not support steps taken by

the Australian Sports Anti-Doping Authority (ASADA) CEO to collaborate with the

Australian Football League in an investigation which the CEO was undertaking, using a

power to conduct an investigation which was expressed in very general terms, and which did

not specifically authorise such collaboration. In rejecting the appellant’s claim, the Full Court

considered that the matter was not a case where a regulatory authority had sought to exercise

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a compulsory power that purported to interfere with a fundamental common law right.	The
Full Court noted:

The Parliament has commonly used provisions like s 22 of the ASADA Act to ensure

that a statutory body has sufficient power to discharge its functions in circumstances

that the Parliament could not practically set down, although they lie within the

contemplation of its enactment. The authorities that have discussed the scope of a

‘necessary’ or ‘convenient’ power such as that in s 22 of the ASADA Act support the

general proposition that s 22 is to be construed in conformity ‘with the width of the

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language in which it is expressed’.

[44]      In the context of this matter, my consideration of the submissions is, in my view

‘necessary or convenient’ for the purpose of performing my role as Delegate of the General

Manager.

[45]      Mr Payne suggests in the alterative that if, the General Manager is able to consider

matters ‘beyond the application’, she would need to first determine whether the person has

any interest in the subject matter and whether they have standing. There should also be

consideration of the weight that should be placed on the person’s objection.

[2016] FWCD 1492

[46]      In this context, interest can relate to rights, advantages, duties, titles or liabilities.

Standing by contrast can be defined as the entitlement of a person or organisation to involve

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the jurisdiction of a court or other body to hear or consider a case or matter.

[47]      It is long established that the rules of an organisation comprise a compact between the

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members. In my opinion, a member bound by those rules could certainly be said to have an

interest in the subject matter, and consequently, standing in an application to alter those rules.

[48]      In relation to the Masson submission, Mr Payne argued that there is no other evidence

that the 35 persons listed at its conclusion are financial members, have an interest in the

proposed rule alterations or in fact object to the proposed rule changes. In any event, he

argued that that their appended signatures to the submission did not add any weight or force to

the content of the submission.

[49]      I note here that the terms of their objections are common with those of Mr Masson.

No issue appears to be taken with Mr Masson’s membership. Consequently, I do not consider

it necessary to determine whether the additional 35 persons are members or otherwise have an

interest in the proposed alterations in order to consider the Masson objection.

Procedural fairness

[50]      I make the following comments in relation to correspondence from Hall Payne

Lawyers alleging an extended ‘right of reply’ provided to the objectors.

[51]      On 20 January 2016, Mr Stedman of Hall Payne Lawyers submitted:

Whilst no process exists for objection under the FW(RO)A, we believe that if a

process were to be applied, then it is appropriate that a ‘right of reply’ be given to the

applicant to respond to the objection. It is, however, highly unusual for an objector to

be provided a right of reply to the applicant’s right of reply.

Our client considers that a step allowing Mr Masson to make extra submissions is

unnecessary and will cause further delay to the decision of the National Conference

being effected.

Consequently, our client requests that the proposed rule alteration be considered on the

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material presently before the Fair Work Commission and promptly certified.

[52]      As outlined earlier, the Hall Payne submission lodged on 18 December 2015 not only

responded to the parties’ objections; it was also the first opportunity the objectors had for

hearing the applicant’s full case for the certification of the rule alterations. Consequently, in

accordance with the principles of procedural fairness, the objectors were afforded the

opportunity to respond to particulars in support of the case for certification. Further, Hall

Payne’s submission queried the right to object to the proposed rule changes because the Act

was silent in regard to such a process. Mr Payne also expressed his opinion that, in any event,

some or all of the objectors lacked the requisite interest or standing in relation to the matter.

[53]      In reaching my conclusion on this matter, I must consider the particulars of each

submission. As a question of procedural fairness, I considered that the objectors had the right

to respond and present arguments in response to the applicant’s case for certification and
[2016] FWCD 1492

respond to Mr Payne’s contention that they lacked the requisite interest or standing to raise

any objections to the proposed rule changes.

[54]      I consider this approach to fall within the scope of ‘necessary or convenient’ as

articulated in s.657(2) for the purpose of discharging my role as Delegate of the General

Manager. Mr Payne had raised new issues of substance in relation to the proposed alterations

and, in my opinion; the objectors had a right to respond.

[55]      The objectors were provided with what I considered a reasonable time in the

circumstances to reply to the Hall Payne submission of 18 December 2015.

[56]      I consider my approach to have been consistent with the rules of procedural fairness

and appropriate in the circumstances. I note also that, notwithstanding its own objections, the

applicant itself lodged a final submission-in-reply on 19 February 2016.

[57]      I now consider the particulars of each of the submissions. I have set them out in

summary form below. I note also that, in reaching my conclusion I have had regard to all of

the relevant facts and circumstances, including all of the submissions lodged in relation to this

matter.

Specific objections

[58]      The Masson submission objected to the amendments to the following rules – rule 28,

40, 44 and 47. Ms Jordan objected to rules 28, 29, 40, 44 and 47. Mr Scanlon’s objection did

not particularise any rules or sub rules to which he specifically objected.

[59]      Hall Payne provided a summary of the objections and responded to each objection

particularly.

[60]      I now address the objections to each rule separately.

Objections to the proposed alterations to Rule 28 – delegation of powers to sub-

committees

[61]      As outlined above, current rule 28 outlines the National Executive’s powers and

duties. The proposed alterations to this rule delete and replace sub rule 28.2.8. The effect of

the alteration is to authorise the National Executive to set up sub-committees and delegate its

powers (save the power to delegate) to those sub-committees. Proposed new sub rules 28.6

and 28.7 clarify the composition of the sub-committees and confirm that they are responsible

to, under and subject to the control of, the National Executive.

[62]      Mr Masson and Ms Jordan objected to all of the proposed changes to Rule 28.

[63]      Both Mr Masson and Ms Jordan argued that the proposed changes in rule 28 failed the

test set out in section 5 and section 142 and should be rejected by the General Manager as ‘not

only constituting a gross diminishment in democracy within the organisation’ but being

capable of being argued ‘to be oppressive and unjust [and having]…the reverse effect of

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encouraging members to participate in their organisation’.

[64]      The objectors set out reasons for their objections.

[2016] FWCD 1492

[65] First, the power to set up sub-committees under proposed rule 28.2.8 was

‘unnecessary’. The objectors argued that the Executive already possessed the power to

establish sub-committees as the rules provided for the operation of National Enterprise

Councils (LECs) and Local Enterprise Councils (LECs). These were described as advisory

bodies which were controlled by the membership.

[66]      Second, the proposed changes offend against the objects and standards of the Act to

provide for democratic control because the sub-committees are not ‘subject to member

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scrutiny’.

[67]      Third, the proposed rules offend against the Act because they fail to prescribe the

number of Executive members required to establish a sub-committee.

[68]      Fourth, the proposed rules reduce member control because they fail to nominate a

number of honorary Executive members that must be part of the sub-committees.

[69]      Further, that the proposed rules have been drafted with the purpose of establishing

faction-controlled sub-committees with the purpose of eradicating alternate political views

within the Union; and usurping the powers of the current National Secretary.

[70]      The objectors predicted the following outcome – the establishment of sub-committees

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(‘star chambers’) made up of only full-time elected officials with the ability to override

decisions made by the member bodies of the organisation.

[71]      Mr Masson submitted:

…the effect of making such alterations would enable, for example, the formation of a

sub-committee, comprising the National President, the Assistant National President

and one or more Local Executive Secretary to determine, for example, a charge

against the member elected National Secretary, find them guilty, remove them from

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office and strike them from membership.

[72]      Finally, Ms Jordan objected more broadly to the concept of delegation:

The National Executive is a collective representative body. It is governed by

procedural rules including the need for quorums. It can form up sub-committees for

the purpose of efficiency, but it would be a very dangerous and undemocratic matter

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for the collective body to delegate its power to such a sub-committee.

[73]      Ms Jordan argued that any such proposed sub-committees should be advisory in nature

and ‘only the whole of the Executive, as was the intention of the rule…be allowed to exercise

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its powers and be prepared to be accountable to the membership at large for such actions’.

[74]      I now address the specific objections to the proposed alterations to rule 28 raised by

Mr Masson and Ms Jordan.

Are the proposed alterations to rule 28 ‘unnecessary’?

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[75]      A primary argument put forward by Mr Masson and Ms Jordan was that the proposed

power of the National Executive to set up sub-committees was ‘unnecessary’.

[76]      In his response, Mr Payne rejected the notion that the rules changes are ‘unnecessary’

and, consequently, unable to be certified. Among other things, Mr Payne submitted that the

objectors have disregarded the general principle that ‘the content of the rules of a registered

organisation is primarily a matter for its members’.

[77]      Mr Masson responded in turn to Mr Payne. He maintained his objection to the

proposed alteration, primarily because the change is ‘completely unnecessary’. He reiterated

that there is already ample provision for the National Executive to establish committees and

for those committees to act in the name of the Executive.

[78]      Mr Masson also queried the purpose of the proposed rule if, as Mr Payne submitted,

the rule merely sought to confer the ability to delegate whilst maintaining the Executive’s

ability to withdraw its delegation if it did not wish to be bound by a determination of the sub-

committee.

[79]      Mr Masson continued:

What hasn’t been articulated by those proposing the rule alteration is any substantive

example or reason why and in what circumstances it would be necessary for the

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National Executive to delegate its powers.

[80] I have considered both Mr Masson and Ms Jordan’s submissions carefully.

Ultimately, however, I have come to the conclusion that it is not the Delegate’s role under

s.159 of the Act to determine whether a rule is necessary or otherwise.

[81]      In support of my conclusion I cite the following authorities.

[82]      In Municipal Officers’ Association of Australia v Lancaster, Deane J stated

The constraints and restrictions imposed, by positive and negative requirements of the

Act and regulations, upon the freedom of the members of an organisation to select, for

themselves, the rules which they consider appropriate for their particular organization

to select are real and significant. It cannot, however, be too strongly stressed that,

subject to those constraints and restrictions, the content of the rules of a registered

organization is primarily a matter for the members…it is for the members, or

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those entrusted by the members in that regard, to decide the content of the rules.

[my emphasis]

[83]      Northrop and Evatt JJ, who presided over the same case, cited with approval the

following extract:

The court is not at liberty to substitute its modes of thought for those of an

organization. Subject to the provisions of the Act, an organization is free to

determine its own internal structures; it is free to determine its own policies; it is

free to pursue objects which it considers to be desirable; and it is free to decide what it

considers to be in the best interests of its members or potential members… The court,

in the exercise of the judicial powers conferred by s.140 of the Act, is not permitted to

[2016] FWCD 1492

substitute what is considers to be desirable internal structures of an organization; what

is considers to be desirable policies; what is considers to be desirable objects; and

what it considers to be in the best interests of the members of the

organization…subject to the provisions of the Act, an organization is free to determine

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its own internal structures. [my emphasis]

[84]      In Thornton v McKay, O’Mara J also stated:

I do not conceive it to be the function of the Court to put into effect its own opinions

as to what is desirable in the way of union rules and union management. The sections

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leave[s] the members free to adopt such rules as they see fit…

[85]      These authorities strongly suggest that an internal structure adopted by an organisation

does not impose upon applicants for membership or members conditions, obligations or

restrictions that are oppressive, unreasonable or unjust merely because the structure ‘might be

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considered less than ideal’.

[86]      The question of whether the proposed sub-committees are unnecessary or redundant is

not relevant to my determination about whether the rules are certifiable or otherwise.

[87]      Consequently, I reject the submission that the alterations to proposed rule 28 offend

against the Act on the basis that they are unnecessary; and that this consequently imposes

upon members or applicants for membership conditions that are oppressive, unreasonable or

unjust.

Delegation and democratic control

[88]      I now turn to the question of whether the proposed alterations offend against the

objects and standards of the Act because proposed sub rule 28.2.8 authorises the National

Executive to delegate its powers to the proposed sub-committees.

[89]      The objectors submitted that the proposed delegation is ‘dangerous and undemocratic’

and amounts to a ‘gross diminution of democracy’.

[90]      Mr Payne responded:

The objection that it is dangerous and undemocratic for delegation to occur ignores the

objects of the Act, and the need for organisations to be efficient and effective in the

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delivery of [their] obligations to members.

[91]      Mr Payne continued:

In relation to the issue of delegation generally:

	The Act expressly provides for delegation – see section 293;
	The common law provides for delegation of power;
	The Act requires organisations to have rules providing for powers and duties;

 Duties must be provided for in a manner that permits the organisation to

operate effectively;

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 Implicit in that proposition, as a matter of practicality, is the necessity for

delegation to occur;

 An appropriate use of delegation promotes good governance and is hardly

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remarkable.

[92]      Mr Payne submitted that there was nothing in the proposed alterations that departed

from appropriate governance in relation to delegation; powers of the National Executive had

not increased; and that the proposed rules neither altered nor encroached upon the powers of

the National Secretary.

[93]      The question of whether the proposed rule is somehow undemocratic necessitates me

to consider the concept of delegation generally.

[94]      Delegation can be defined as the assignment of responsibility or authority to another

person or body to carry out specific activities. Wills J in Huth v Clarke provided the

following definition:

Delegation…as the word is generally used does not imply a parting with powers by

the person who grants the delegation, but points rather to the conferring of an

31

authority to do things that the person would otherwise have to do himself.

[95]      A key aspect of delegation is that the person or body who delegated the work remains

responsible for the outcome of the delegated work. The delegation must be distinguishable

from a transfer of power and cannot amount to a denudation or parting of power or authority

32

by the delegator. As Street CJ stated in Bayly v Municipal Council of Sydney:

[The authority] can at any time revoke the authority delegated…and can take back into

its hand the exercise of the powers delegated to them. It has not denuded itself of any

of its rights. All that it has done is that, in exercise of them, it has given a revocable

33

authority to others to act for it in certain specified matters.

[96]      In the decision Forest Marsh Pty Ld v Resource Planning and Development

Commission, Underwood CJ cited with approval the following statement

Although not all the cases are in accord, it is submitted that, in the absence of a

contrary indication in the Act, a delegator retains power to act or decide concurrently

with the power of the delegate, and may exercise that concurrent power at any time

before the delegate acts or decides. This is consistent with the view that delegation

34

involves a replication rather than a transfer of power [Authorities omitted].

[97]      I now consider whether the proposed delegation outlined in rule 28 offends against

any relevant provisions of the Act, specifically the Act’s object to provide for the democratic

functioning and control of organisations.

[98]      To my mind this raises the consideration of two questions. First, the question of

whether that which is contemplated by proposed sub rule 28.2.8 is a delegation. Second,

whether all the powers and authorities of the National Executive (excepting the power to

delegate) are capable of being delegated.
[2016] FWCD 1492

[99]      In my opinion, the answer to the first question is yes. Proposed sub rule 28.6 states

that the sub-committees shall, among other things ‘be responsible to, and under the control of

the National Executive,’ ‘be responsible to, and subject to the control of, the National

Executive’; and ‘promptly report to the National Executive on its deliberations’ 9my

emphasis]. To me this is suggestive of a revocable authority consistent with the definitions

provided by the authorities above.

[100] There is no suggestion that the proposed delegation carries with it any overriding

power to oust the authority of the National Executive.

[101]    The next question is whether all powers and/or authorities of the National Executive

are capable of being delegated.

[102]    Rule 28.1 outlines the powers and authorities of the National Executive. Among other

things, the National Executive has the power and the duty to ‘manage and control and conduct

the affairs of the Union’. The National Executive also has the powers of the National

Conference when the National Conference is not in session (subject to the decisions of the

National Conference) excepting the power to make, add to, amend or rescind the Union’s

rules.

[103]    The National Executive also has the power to, among other things:

	Implement the policy of the Union in all matters
	Develop, authorise, oversee and implement strategies and plans for the conduct of the
union’s affairs
	Cause the interests of the Union and its members or any of them to be presented to and
represented before any authority or body
	Appoint lawyers or other appropriate persons to represent the Union or any of its
members in any Court or proceedings
	Determine the terms and conditions of employment for all full time paid officers of the
Union and for all employees of the Union wherever employed.
	Determine what allowances or honorariums (if any) shall be paid
	Establish a National Management Committee
	Cause an audit to be made of any of the financial affairs and records of the Union; and

35

 Determine a budget for the Union.

[104] It appears the majority of these powers relate to or involve the management of the

affairs of the Union. It is in my opinion reasonable to anticipate that an organisation would,

for reasons of efficiency, seek to delegate from time to time at least some the management

affairs of an organisation as opposed to its overall authority and accountability.

[105] In my view, the wording of proposed rule 28 contemplates a delegation that is

appropriate and consistent with the standards and objects outlined in section 5 of the Act.

These standards include among other things, encouraging the efficient management of

organisations and providing for their democratic functioning and control.

[106] Accordingly, I reject the objector’s assertions that delegation contemplated by

proposed sub rule 28.2.8 undermines democracy or is otherwise contrary to the Act.

[2016] FWCD 1492

Alteration of the rules for an improper purpose

[107]    I now consider the objection that the proposed rule 28 has been drafted with a specific

purpose in mind – that is, to enable the other members of the National Executive to effectively

36

circumvent the National Secretary and ‘run the union themselves’.

[108] In support of their contention, the objectors submitted evidence of a long-standing

dispute with the Union. Specifically, an Australian news article dated 3 February 2016 which

referred to an allegation that the National Executive has ‘changed union rules to circumvent

the National Secretary’ and that the changes would make it easier for the National Executive

37

‘to remove an office holder and strip them of union membership’.

[109] Mr Masson also cited a recent decision by the Fair Work Commission, in which

Commissioner Roe commented in relation to the Union’s internal dispute:

The evidence is sufficient for me to conclude that the members of the National

Executive including Mr Derrick [the Assistant National Secretary] were generally part

of the campaign team which was opposed to the election of the current National

Secretary and that they generally remain opposed to the National Secretary. The

resolutions of the National Executive which prevent the National Secretary from

obtaining legal advice or dealing with internal staff matters including complaints

about bullying are clear examples of this. I of course make no comment on the

appropriateness of these decisions. However, they are decisions which are out of the

ordinary in the management of a union and are clearly reflective of a continuing sharp

difference between the majority of the National Executive and the National Secretary.

Mr Martin confirmed that the previous National Secretary was not subject to such

38

restrictions.

[110]    The objectors submitted that the potential outcome would constitute not only a ‘gross

diminishment in democracy’ but would discourage members from participating in their

39

organisation and ‘could strongly be argued to be oppressive, unreasonable and unjust’.

[111] Mr Scanlon has also argued more generally that the rule could be applied in such a

manner that, if elected officers and/or members take a particular action, or refuse to take

action, they can be charged by the National Executive or an appointed sub-committee.

[112] Mr Payne has dismissed the objections outlined above as being ‘without basis’ and

‘unsupported by evidence’.

[113]    Mr Payne further submitted that the proposed alterations would need to be read with

rule 44, which provides specifically for the removal of offices.

[114]   Rule 44.3 provides:

44.3 Any charge against the National President or the National Secretary or the

National Assistant Secretary or a Local Executive Secretary shall be addressed to the

National Secretary and shall be heard and determined by the National Executive.

[my emphasis]

[115] Mr Payne submitted:

[2016] FWCD 1492

The provisions of rule 44.3 are express, if there is a hearing of a charge it is to be

heard by the National Executive as the National Executive; this is not a circumstance

40

that permits delegation as the rule is clear.

[116]    I have assessed the objections of Mr Masson and Ms Jordan and the response from Mr

Payne. I have come to the conclusion that the objector’s concern in this regard are with the

potential application and/or misuse of the proposed rules as opposed to the rule itself.

[117]    The issue of whether the fact a rule may be applied harshly or unjustly is a ground for

its disallowance has been examined in a number of cases. For example, in Allshorn v

41

Stapleton and Others in which Smithers A.C.J upheld the trial judge’s conclusion that:

….a rule does not necessarily contravene s.140(1)(c) merely because it is capable of

being misused in such a way as to operate unreasonably…Doubtless some rules of

many organisations could be misused. The remedy of any such misuse does not lie in

the making of an order under s.140 in respect of the rule itself, but in the making of an

order under s.141 giving directions for the performance or observance of the rules in

42

such a manner as to prevent, or to overcome the effects of, any such misuse.

43

[118]    Further in The Master Plumbers’ and Mechanical Services Association of Australia

Delegate Carruthers stated:

It is not enough that a rule is capable of being misused in such a way as to operate

unreasonably. Nor it is enough that a rule might give rise to an unintended,

44

unreasonable consequence.

[119]    I accept that, in certain circumstances, rule alterations made for an improper purpose

might be found to be beyond power. However, I find in this case there is insufficient evidence

to support such a conclusion. Ms Jordan and Mr Masson have put forward a number of

allegations regarding the motives of the National Executive in relation to the proposed

alterations; however offered little by way of supportive evidence or material. The opinions

expressed in a newspaper article are, in my view, ancillary at best and I have commensurately

accorded them little, if any, weight.

[120] Consequently, I reject Mr Masson and Ms Jordan’s submission that the proposed

alterations offend against the Act because they are likely to be used in oppressive,

unreasonable and unjust ways that may circumvent the democratic functioning of the

organisation.

Are the proposed sub-committees subject to member scrutiny?

[121] I now turn to the question of whether the proposed alterations offend against the

objects and standards of the Act to provide for democratic control because the sub-committees

are not ‘subject to member scrutiny’.

[122]    In his response to Ms Jordan and Mr Masson, Mr Payne pointed out that the proposed

sub-committees would be subject to, and under the control of, the Executive body.

[2016] FWCD 1492

[123] He further submitted that decisions of the sub-committees would be, in effect,

decisions of the National Executive. He argued that it was difficult to comprehend how these

decisions were any less subject to scrutiny by members than any other National Executive

decision.

[124]    Mr Masson in turn queried the purpose of the proposed rule if, as Mr Payne submitted,

the rule merely conferred the ability to delegate whilst maintaining the Executive’s ability to

withdraw its delegation if it did not wish to be bound by a determination of the sub-

committee.

[125]    Mr Masson reiterated that there is already ample provision for the National Executive

to establish committees and for those committees to act in the name of the Executive.

[126]    Mr Masson stood by his original supposition that:

The current rule is clearly drawn up with a view to safeguarding the organisation from

the Executive’s powers being exercised by any other body other than the Executive as

a whole.

…

In the absence of any further and better explanation, it is quite reasonable to accept

that the reasons and circumstances envisaged in the original objections, particularly

those concerning the usurping of the National Secretary’s powers and duties, are

accurate. We accept Hall Payne’s interpretation at paragraph 66 of rule 44 and thank

them for that clarification, however we believe the rest of the objection stands

45

scrutiny.

[127] If it is accepted that the referral of power to the proposed sub-committees is a

delegation then it is clear that the National Executive retains responsibility for the

deliberations and decisions of the proposed sub-committees. Under the proposed rules, all

members of the sub-committees are also members of the National Executive.

[128] It is also significant that proposed sub rule 28.7 mandates that the proposed sub-

committees promptly report to the National Executive on their deliberations.

[129]    Consequently the sub-committees are subject to the same level of member scrutiny as

the National Executive. I reject the notion that the proposed alterations to rule 28 offend

against the Act because the proposed sub-committees are not subject to member scrutiny.

Does the proposed rule provide for sufficient certainty?

[130]    I now address the question of whether the proposed sub-committee structure offends

against the Act because it fails to prescribe the number of Executive members required to

establish a sub-committee.

[131]    It appears that the objectors allege that the rule fails to provide for certainty in relation

to the composition of the sub-committees.

[132] It is well-established that a rule that is vague and uncertain and which results in

detrimental effects upon members can be oppressive, unreasonable and unjust. I have in

previous decisions cited the example of Cameron v Australian Workers’ Union in which
[2016] FWCD 1492

Murphy J held that a vague and uncertain rule which could result in the expulsion of members

46

imposed unreasonable conditions upon members.

[133] In this context, however, I do not think that failure to provide for the number of

members required to establish a sub-committee is so vague and uncertain that it justifies a

conclusion that it imposes conditions which are oppressive, unreasonable or unjust. The

construct of the rule, I think, contemplates that sub-committees may be comprised for a

variety of reasons. Their delegated function may necessitate committees of different sizes. It

is also clear that the size of sub-committees would be limited by the number of members of

the National Executive.

[134] In my view, the submission that the proposed alterations to rule 28 should not be

certified because they fail to provide for certainty cannot be made out.

[135]    Accordingly I reject the objections in relation to the proposed alterations to rule 28.

Objections to the proposed alterations to Rule 29: meetings of National Executive

[136]    Ms Jordan objected to the proposed new rule 29.

[137]    Current rule 29 deals with meetings of the National Executive. The alterations delete

rule 29 and insert in lieu a new rule which, among other things, directs that the National

Executive meet quarterly each year; and at other times as determined by specified office

bearers.

[138] The proposed rule also provides for certain periods of notification and sets out

procedures for conducting of ballots and calling urgent meetings.

[139] Ms Jordan argued that proposed new rule 29 arguably imposes oppressive,

unreasonable or unjust conditions, obligations, or restrictions on members (section 142(1)).

[140] Mr Jordan also submitted that proposed rule 29 would ‘potentially discourage

members from seeking office and participating in the affairs of the organisation if they were

to be subject to such restrictive and oppressive (let alone confused) usurpation of the powers

47

of office’.

[141]    Ms Jordan provided particulars of her objection. She submitted that the alterations are

‘unnecessary’ and provide for an ‘unwieldy and unnecessary process of meeting calling’

which runs counter to encouraging the efficient management of the organisation as laid out in

48

section 5(3)(c).

[142] She also contended that the objective of the alterations was to ‘further usurp or

undermine the powers of the National Secretary in as much as they are the elected officer

empowered to maintain the effective operation of the National Executive’. Specifically, the

proposed rules ‘dilute’ the powers of the office of the National Secretary thereby contravening

the objects of section 5(3)(d) of providing for the democratic functioning and control of an

49

organisation.

[143]    I now address each objection separately.

[2016] FWCD 1492

[144]    In relation to Ms Jordan’s assertion that the proposed alterations are ‘unnecessary’ I

reiterate that it is not my role under s.159 of the Act to determine whether a rule is necessary

or otherwise. I refer to my earlier discussion at paragraphs [82] to [86] regarding the right of

an organisation to choose its own rules and internal structures within the framework provided

by the Act.

[145]    Ms Jordan also submitted that the proposed process for calling meetings is ‘unwieldy

and unnecessary’. I dismiss this objection for the same reasons.

[146] I now address Ms Jordan’s assertion that the proposed alterations sought to further

usurp or undermine the powers of the National Secretary.

[147] Mr Payne has responded to Ms Jordan’s claims. He denied that the proposed rule

somehow affected or ‘diluted’ the powers of the National Secretary. In contrast, Mr Payne

submitted that the proposed alterations in fact enhanced the National Secretary’s powers as he

or she would now be able to call for meetings on an urgent basis. The authorisation of the

National President to call meetings in the event that the National Secretary fails to do so was

merely ‘another means by which the business of the National Executive can proceed to be

50

conducted’.

[148]    There is no evidence before me that, on the face of the proposed rules, the ability of

the National President to call meetings impinges in any way upon the authority of the

National Secretary. Likewise, there is nothing before me that would allow me to conclude the

ability to determine that a matter can be dealt with by ballot dilutes the power of the National

Secretary.

[149]    In relation to the allegation that the proposed alterations seek to usurp and undermine

the powers of the National Secretary, I refer to my previous discussion at paragraphs [117] to

[120]. I do not find the evidence provided supportive of such a conclusion. Authorities on the

matter suggest that no assumption should be made that a rule will be operated malevolently or

51

in bad faith.

[150]    Accordingly, I reject Ms Jordan’s objections in relation to the proposed alterations to

rule 29.

Objections to the proposed alterations to Rule 40: duties of National Assistant Secretary

[151]    Both Ms Jordan and Mr Masson objected to the proposed addition of sub rule 40.6.

[152]    Current rule 40 describes the position of the National Assistant Secretary. Alterations

to rule 40 include, among other things, the insertion of new sub rule 40.6. This new sub rule

provides that the National Assistant Secretary shall ‘carry out such other duties as the

National Conference or the National Executive may assign to him/her’.

[153] Ms Jordan and Mr Masson objected to the alteration on the basis that it would be

contrary to the democratic control of the organisation and failed to meet the intentions of the

Act for the efficient operations of the organisation.
[2016] FWCD 1492

[154]    The objectors also argued that proposed sub rule 40.6 left open the opportunity for the

National Assistant Secretary to usurp the powers and duties assigned to the National Secretary

or act contrary to the direction of the National Secretary based on factional disagreement.

[155]    Both objectors argued that the proposed alteration ‘dilutes the powers’ of the National

Secretary to direct the National Assistant Secretary.

[156]   Mr Masson continued:

The proposed amendment 40.9 is redundant if at 40.7.2 the National Executive may

temporarily appoint a person, eligible to be elected to National Assistant Secretary.

52

Nothing by way of temporary appointment would dilute that eligibility.

[157] I first address the question of whether proposed sub rule 40.6 is ‘unnecessary’. I

dismiss the objection that the proposed sub rule is unnecessary for the same reasons

articulated in paragraphs [80] to [86].

[158] I now turn to the objection that the proposed sub rule seeks to create tension and

inefficiency in the directions and duties that the National Assistant Secretary must follow and

carry out. Ms Jordan and Mr Masson appear to imply that by virtue of the proposed rule

changes, the National Assistant Secretary will have to serve ‘two masters’ – the National

Executive (or National Conference) and the National Secretary. The objectors argued that the

resultant inconsistency dilutes the powers of the National Secretary to direct the National

Assistant Secretary, a ‘key principle’ in establishing the position.

[159]    I am not persuaded by these assertions. I note that proposed sub rule 40.6 provides

that the National Assistant Secretary shall carry out such other duties as may be assigned.

That is, the duties are those that are assigned to the National Assistant Secretary in addition to

the directions provided to him or her by the National Secretary. The relevant duties appear

supplementary to the duties carried out under the direction of the Secretary.

[160]    On the face of the proposed rules, there is no inherent tension.

[161]    I now address the issue of whether the proposed sub rule is contrary to the standards

and objects of democratic control of the organisation and encouraging the efficient operations

of the Union because it leaves open the opportunity for the National Assistant Secretary to

usurp the powers and duties of the National Secretary or act contrary to the direction of the

National Secretary based on factional disagreement.

[162] Mr Masson appears to rely at least partly on the findings of Commissioner Roe in

McConville v Finance Sector Union of Australia that the current National Assistant Secretary,

Mr Derrick, is ‘part of the campaign team which was opposed to the election of the National

53

Secretary and [which] generally remain opposed to the National Secretary’. However I note

that Commissioner Roe was not satisfied on the basis of the evidence ‘that Mr Derrick is the

leader of the group or that … Mr Derrick is able to or does direct the votes, actions or views

54

of other members of the National Executive’.

[163]    While it is abundantly clear there is factional disagreement between Ms Jordan and Mr

Derrick, it is not my role to speculate about any of Mr Derrick’s motivations absent of

sufficient, relevant and probative evidence. On the basis of the material before me, I am
[2016] FWCD 1492

unable to conclude that the alterations to the sub rule were drafted with the malevolent or

improper intent asserted by Mr Masson and Ms Jordan.

[164]    Further, as noted above, the mere potential or possibility that the rule may be used in

an improper way is not a bar to certification. The relief, should unreasonable misuse occur,

lies through the pathway grounded in s.164 of the Act.

[165]    In conclusion, I am not persuaded that the proposed sub rule ‘dilutes’ the powers of

the National Secretary or offends against the Act.

[166]    I now address the issue of the redundancy of proposed sub rule 40.9. The proposed sub

rule states that a person temporarily appointed in accordance with rule 40.7 is entitled to

nominate in the election for National Assistant Secretary. Proposed sub rule 40.7 empowers

the National Executive to temporarily appoint a person eligible to be elected to the National

Assistant Secretary to perform the functions of that office until the National Assistant

Secretary is either present and able to perform his or her functions; or a person is elected to

the extraordinary vacancy.

[167]    In relation to Mr Masson’s objection to proposed sub rule 40.9, Mr Payne submitted

The proposed addition of sub-rule 40.9 is to provide for certainty with respect to the

meaning of the word ‘temporary’, and makes clear that a temporary appointee is not

55

prohibited from nominating for the office.

[168]    With respect to Mr Masson’s submission in relation to sub rule 40.9, I reiterate that the

content of the rules is a question for the members. Consequently, I do not find it necessary to

make a finding on whether proposed sub rule 40.9 is redundant or otherwise.

[169]    I reject the objections made in relation to sub rule 40.9.

[170]    Consequently I reject the objections in relation to the proposed amendments to rule 40.

Objections to the proposed amendments to Rule 44: removal of officers

[171]    Mr Masson and Ms Jordan objected to the proposed amendments to 44.13, 44.13.1 and

44.13.2.

[172] Current rule 44 deals with the removal of officers. The alterations amend sub rule

44.1, and insert new sub rules 44.1A and 44.13.

[173] Proposed sub rule 44.1 deals with charges made against officers and new sub rule

44.1A deals with eligibility to hold office. The existing and new sub rules distinguish

between charges for misconduct (such as misappropriation or gross misconduct) and the

removal of an officer from office when that officer ceases to be eligible to hold that office.

[174]    Proposed sub rule 44.13 provides that where it has been determined that an officer is

to be removed from office and a finding has been made that the officer is also of general bad

character or has not complied with the rules of the Union, then that officer may also be

removed from membership of the Union.
[2016] FWCD 1492

[175] Mr Masson and Ms Jordan argued that the proposed amendments constituted an

‘arbitrary rule’ that could be exercised in a way that is oppressive, unreasonable and unjust.

Specifically, the rules could be used to remove an officer from office and then arbitrarily

strike them from membership.

[176] Second, the objectors argued that the phrase ‘general bad character’ is without

reference or definition.

[177]    Moreover, sub rule 44.13.2 provided a test that was ‘lesser and inconsistent’ than that

that provided under sub rule 44.1.2, which provided that an officer may be removed from

office if there is a finding of a ‘substantial breach’ of the rules of the Union.

[178] Finally, the objectors maintained 44.13 was said to introduce the power not only to

remove an officer from office, but to then ‘arbitrarily strike them from the membership’.

[179]    I first address the issue of whether the sub rules could be exercised in order to remove

an officer from office and ‘arbitrarily’ strike them from membership.

[180] Mr Payne has denied that the rules provide for an ‘arbitrary’ removal from

membership. He pointed out that removal from membership was conditional on the matters

contained in 44.13.1 and 44.13.2 being determined against the officer concerned. That is, a

determination must first have been made that an officer has misappropriated funds,

substantially breached rules or is guilty of a gross misbehaviour or gross neglect of duty.

[181]    I disagree that the proposed sub rule, on its face, provides for the ‘arbitrary’ removal

of an officer from office and membership. The proposed rules provide for a formal process.

This cannot be described as ‘arbitrary’.

[182] I also reject the contention that the use of the term ‘general bad character’ is

uncertain. As Mr Payne correctly submitted, the Act already contemplates the term in s.166.

Section 166 limits the entitlement of an eligible person to join a registered organisation if the

person is found to be ‘of general bad character’.

56

[183]     There is ample authority discussing the meaning of the term ‘general bad character’.

For example, Owens v Australian Building Construction Employees and Builders Labourers

57

Federation held that the word ‘character’ in the phrase ‘general bad character’ refers to both

an individual’s disposition and reputation. Lee J in Pickersgill v Seamen’s Union of Australia

further provides:

The Act does not restrict qualification for membership of an organisation to persons of

good character. It renders liable to rejection the application of a person of general bad

character. In specifying the disqualifying circumstance as “general bad character” rather

than “bad character”, the Act imposes a requirement that there be some notoriety

attaching to the applicant’s bad character. The use of the word “general” in addition to

the words “bad character” also suggests that the person to whom the words apply will

58

be one whose bad character has been displayed by a regular pattern of conduct.

[184] I am aware of the concerns the objectors have and their predictions regarding the

possible removal of Ms Jordan from the office of National Secretary, and, consequently,

membership as a result of the rule alterations, as discussed above. However, the guiding
[2016] FWCD 1492

authorities are clear that it is not enough that a rule might give rise to an unreasonable

consequence or that it might be used to achieve a mischievous end. To be incapable of

certification under s.159, a rule must be oppressive, unreasonable or unjust on its face. I have

also taken into account that the predictions and assertions by the objectors on this point are

unsupported by probative evidence.

[185]    As I have made clear above, if the rule is applied in a way that produces an oppressive,

unreasonable or unjust result, relief is available to Ms Jordan and other members of the Union

59

in the form of the making of an order under ss.164 or 164A	of the Act.
Natural justice

[186] Correspondence to Hall Payne issued on my behalf on 16 May 2016 asked whether

proposed sub rule 44.13 provided for natural justice for disciplinary hearings against members

who are also office holders.

[187]    In that correspondence, a number of interrelated points were made on my behalf and I

have summarised these below:

	It is an established principle that union executive, councils or dispute tribunals must
accord natural justice to accused members when dealing with disciplinary matters:
Dickason v Edwards (1910) 10 CLR 243.
	Central to the concept of a fair hearing is that members against whom charges are
made are given adequate notice of the details of the charges and the time and place at
which the hearing is conducted in order to prepare or present a defence.

 The proposed sub rule provides for advance notice for office holders of charges

alleged against them. However, this does not appear to extend to potential

consequential findings that may result in their removal from membership under the

same proposed sub rule.

	Lack of natural justice in the process could impose upon members of the organisation
conditions, obligations or restrictions that are oppressive, unreasonable or unjust in
accordance with the Act.
	In support of the contention that the proposed rule is oppressive, unreasonable or
unjust, it was noted that the consequences for excluded members are particularly harsh
– expulsion of membership and potential permanent exclusion from union
representation if a finding of ‘general bad character’ is made against them. A member
may also find themselves removed from membership consequent to changes made
against them as an officer, those being inappropriate considerations for their conduct
as a member.
	Two groups of members appear to be treated differently. Members who are also office
holders may be excluded from membership for non-compliance with the rules of the
union; members who are not office holders may only be excluded under rule 18 for
‘refusing’ to obey any of the rules of the Union. Office-holding members may be
excluded based on findings of ‘general bad character’. Rule 18 provides no such
sanction. Their different treatment could be considered oppressive, unreasonable or
unjust.
	Sub rule 44.9, which provides that, among other things, a reasonable opportunity is
provided to the officer concerned to present his/her defence to the charge or response
to the delegation did not appear to apply to consequential findings made against
members.

[2016] FWCD 1492

[188]    Mr James Stedman of Hall Payne responded to the correspondence on 20 May 2016.

[189] Among other things, Mr Stedman submitted that proposed rule 44.13 did not deny

natural justice to an accused person in consideration of whether that person should be

removed from membership. He pointed out that a relevant body is required to conduct

disciplinary proceedings in accordance with the principles of natural justice unless this

60

process is specifically excluded by a rule or rules. This, he submitted, was not the case here.

Among other authorities, he cited Dickason v Edwards in which O’Connor J stated

…in interpreting rules which give jurisdiction to any tribunal there is always to be

read into them the underlying condition that the proceedings shall be carried on in

accordance with the fundamental principles of common justice. It is upon a party who

wishes to shut out the implication of that basic condition to show that the rules

expressly or by necessary implication negative the implication of its existence.

[190]    Secondly, Mr Stedman pointed to current rule 44.9 in support of the proposition that

reasonable notice must be provided in relation to any charge or allegation made under Rule 44

and this would apply to any proceedings conducted under proposed sub rule 44.13.

…the finding under rule 44.13 could only to relate to the charges set out in the balance

of rule 44, for which reasonable notice is given under rule 44.9. That proposed rule

44.13 states ‘arising from the charges made against this officer, under this rule’ puts

this issue beyond doubt.

New charges and new evidence would not be considered in determining a finding

under rule 44.13.

Consequently, the officer charged would receive sufficient notice of all matters

relevant to the charge being determined and it is this charge (and the finding of guilt)

that would form the basis of a finding to remove the officer from membership.

Further, and in any event, the obligation imposed by rule 44.9 is an obligation that

arises ‘when dealing with any charge or allegation made under’ rule 44. That must

include any allegation, insofar as it could be said that there is a different allegation

(which the FSU submits is not so) made under rule 44.13 as proposed. Hence, if it

were said that there is a different allegation made under rule 44.13, such an allegation

would also be covered by rule 44.9.

[191] Natural justice has been defined as the right to be given a fair hearing and the

opportunity to present one’s case (often described as the hearing rule); the right to have a

decision made by an unbiased or disinterested decision maker and based on logically

61

probative evidence.

[192]    In this context, the relevant principle is that a person shall not be removed from office

or membership or otherwise dealt with to their material disadvantage without fair, adequate

and sufficient notice being provided to them and an opportunity being provided of responding

62

to the accusations brought against them.

[2016] FWCD 1492

[193]    As Mr Stedman pointed out, a number of judicial authorities support the proposition

that bodies such as the National Executive are required to conduct proceedings in accordance

with the principles of natural justice unless this is excluded expressly, or by necessary

implication, in the rules. For example, Lynch v Waters provides:

The rules of an organization are to be constructed in accordance with the principles of

natural justice; any tribunal operating under the rules must proceed in accordance with

those principles and very peremptory language must be found in the rules in order to

exclude their application – Australian Workers’ Union v. Bowen (No. 2); Dickason v

63

Edwards; MacSween v Fraser; O’Neill v. Printing Industry Employees Union.

[194]    In Joyce and Others v Christoffersen and Others, Gray J further provides:

The principles of natural justice operate by way of implication in legislation or rules.

Wherever persons are liable to be deprived of rights, or to have their legitimate

expectations unfulfilled, and the instrument under which these consequences may

occur is silent as to procedures, the courts will imply rights to procedural fairness in

the making of any decisions under the instrument. These rights will invariably include

a right to be heard in some form or another. If the instrument expressly excludes any

right to be heard, no such implication is possible. If it lays down procedures which are

to be followed before a decision is made, it will generally be taken to have excluded

by implication the importation of the principles of natural justice. Even where the

procedures are laid down, it may be that they stop short of excluding the principles of

natural justice, and that such principles are properly to be implied into one or more of

64

the steps of the procedure.

[195]    The question is whether the wording of proposed sub rule 44.13 can be construed as

excluding or the application of natural justice. Use of the words ‘expressly or by necessary

implication’ is significant. To ‘expressly exclude’ something leaves very little room for

doubt. A necessity of ‘very peremptory language’ being found in the rules suggests language

that leaves no opportunity for ambiguity, denial or debate that natural justice has been

displaced or excluded.

[196]    In my opinion, the wording of proposed sub rule 44.13 does not lend itself to ‘express

exclusion’ of the application of natural justice. The rule talks about a ‘finding’ that is made

against a member, for example, that they are of general bad character. There is no explicit

prohibition against such a member being provided with fair, adequate and sufficient notice

being provided to him or her in order to prepare a defence.

[197] A further question is whether the principles of natural justice are excluded ‘by

necessary implication’. The phrase ‘by necessary implication’ might be construed as there

being no other proper or possible construction of the rule. The question is whether the rule

can be comprehended in any other way than that of excluding natural justice. In my view it

can be. There is nothing in the wording of the rule which precludes, for example, the

conducting of a separate or adjourned hearing in order to afford an accused officer with

adequate notice of separate charges laid against him or her as a member so that he or she may

be given time to prepare a defence.

[198] Authorities appear to be in agreement that if the rules do not explicitly or by necessity

exclude the application of natural justice then any tribunal operating under the rules must
[2016] FWCD 1492

proceed in accordance with those principles. As the rule neither expressly nor by necessary

implication excludes the principles of natural justice, these principles must be ‘imported’ to

proposed sub rule 44.13.

[199] Although Mr Stedman submitted that ‘new charges and new evidence would not be

considered in determining a finding under rule 44.13’, I contend that there would be

circumstances where the charges and allegations are distinguishable to those provided at first

instance. For example, an allegation that a member is of general bad character may arise from

charges made against them for gross neglect of duty or substantial breach of the Union’s

rules. These are arguably separate allegations.

[200]    Mr Stedman further submitted that ‘any finding of gross misbehaviour, gross neglect

of duties or misappropriation of funds may evidence a person being of general bad character’.

I do not accept this for the reasons articulated in the paragraph above. Moreover, case law

differentiates between findings of ‘general bad character’ as opposed to mere ‘bad character’.

The use of the word ‘general’ in addition to the words ‘bad character’ has been held as

suggesting that the person to whom the words apply will be one whose bad character has been

65

displayed by a regular pattern of conduct.

[201]    Mr Stedman further submitted that the ‘finding’ referred to in rule 44.13 could ‘only

relate to charges set out in the balance of rule 44, for which reasonable notice is given under

44.9’.

[202]    Sub rule 44.9 provides:

When dealing with any charge or allegation made under this Rule 44 the National

Executive or the Local Executive concerned shall take all reasonable care to ensure that

it is carefully and fully dealt with and, in particular, that a reasonable opportunity is

provided to the officer concerned to present his/her defence to the charge or response to

the allegation.’

[203] Sub rule 44.9 provides that reasonable notice must be provided in relation to any

charges or allegations made in accordance with rule 44. Proposed sub rule 44.13 refers to

‘findings’. However, such findings cannot be made absent the opportunity of members

knowing in advance specific charges or allegations laid against them. Consequently, it is my

opinion that the ‘reasonable notice’ contemplated by sub rule 44.9 in relation to charge and

allegations is able to apply to circumstances in which members are accused under 44.13.

[204] Consequently, it is my view that sub rule 44.9 would apply to any claims or

allegations leading to ‘findings’ contemplated under proposed sub rule 44.13; and if sub rule

44.9 is in any way silent or deficient in relation to this process, the common law general

principles of natural justice are to be properly implied into one or more of the steps of this

procedure.

[205] In my opinion, the proposed sub rule would impose upon members of the Union

restrictions which are oppressive, unreasonable and unjust within the meaning of the Act, if it

was to be construed as prohibiting or preventing a member from being given notice of the

proposed allegations and being afforded the opportunity to defending him or herself. Such a

rule would also be contrary to general principles of common law.

[2016] FWCD 1492

[206]    However, for the reasons articulated above, I find that proposed rule 44.13 does not

offend against principles of natural justice, and, consequently, neither contravenes general

principles of common law nor is oppressive, unreasonable or unjust within the meaning of the

Act.

Different treatment of members

[207]    Mr Stedman also responded to my questions as to whether the proposed rule may be

oppressive, unreasonable or unjust because:

 a member may find themselves removed from membership consequent to charges

being made against them as an officer, when those are inappropriate considerations for

their conduct as a member;

	the consequences of disciplinary action against members are in this case particularly
harsh, specifically if a finding of general bad character is made against them; and
	two different groups of members appear to be treated differently.

[208] In relation to the particularly harsh consequences of disciplinary action against a

member, Mr Stedman commented:

The finding of general bad character and the exclusion from the benefits of

membership are provided for by s.166(1) of the FW(RO) Act as recognised by the

Delegate. That a person of general bad character or that does not comply with the rules

should not automatically have the benefits of membership has been determined by the

legislature. Whilst the Delegate may have an opinion on the harshness of this

provision, it is not relevant to any decision that the Delegate is empowered to make

and cannot be taken into account by the Delegate.

[209]    With respect to Mr Stedman, my opinion of the harshness of the consequences upon

members of this particular sub rule is not an irrelevant consideration. A rule is more likely to

be oppressive if the consequences for a member who is not afforded natural justice are at the

severe end of the spectrum (termination of membership; permanent exclusion from union

representation), as opposed to penalties such as a censure or a fine. However, since I have

found that the principles of natural justice are not excluded by the proposed sub rule, I do not

propose to examine this any further.

[210]    Mr Stedman submitted among other things that:

The responsibility of membership is that the member will comply with the rules of the

union.

Whilst different rules (and obligations) may apply to an officer than as to an ordinary

member, it is the responsibility of a member to comply with the rules as they apply to

them.

An officer does not cease to be a member by holding office and a breach of the rules

by an officer is also a breach of the rules by a member. As submitted above, an officer

must be taken to know the rules.

[2016] FWCD 1492

Our client submits that [the] conduct of an officer is an appropriate consideration in

determining their conduct as a member.

[211] Conditions, obligations or restrictions that are ‘oppressive, unreasonable and unjust’

are not defined in the legislation or its predecessors, but have been considered in case law. In

Municipal Officers’ Association of Australia v Lancaster, Deane J stated:

Section 140(1)(c) provides that the question whether a condition, obligation or

restriction is oppressive, unreasonable or unjust is to be determined ‘having regard to’

the objects of the Act and the purposes of the registration of organizations under the

66

Act…

[212]    Section 5 of the Act considers Parliament’s intention in enacting the Act and sets out

standards that employer and employee organisations are required to meet in order to enhance

relations within workplaces and reduce adverse effects of industrial disputation. Among other

things, Parliament intended that organisations are representative of and accountable to their

members; provide for democratic functioning and control; and encourage members to

participate in the affairs of their organisation

[213] Upon reflection, and on balance, I do not consider the different obligations placed

upon members who are officers and who have been charged and found guilty of certain

allegations and other members of the organisation to impose upon members of the union

conditions, obligations or restrictions that are oppressive, unreasonable or unjust within the

meaning of s.142(1)(c). Their different treatment does not appear to contravene any of the

standards or objects of the legislation set out above, for example, providing for democratic

functioning and control.

[214] Consequently, I find that the proposed sub rule does not impose conditions upon

members that are oppressive, unreasonable or unjust.

Objections to proposed alterations to rule 47: elections

[215]    Ms Jordan and Mr Masson objected to the proposed amendments to sub rules 47.49,

47.49.3, 47.49.4, and 47.49.5.

[216]    Rule 47 deals with Union elections. The alterations, among other things, delete current

sub rule 47.49.5 which provides as follows:

Where a vacancy has occurred in any elected office as a result of the removal from

such office of the holder of that office in accordance with these Rules, the person shall

be eligible to nominate for and be nominated for election to fill the vacancy in the

office from which that person was so removed as though, for those purposes, that

person continued to hold the office concerned.

[217] The effect of the proposed alterations to rule 47 is the deletion of a sub rule that

explicitly allows an officer who has been removed from office to immediately contest the

office.

[2016] FWCD 1492

[218]    The alterations also enable the filling of casual vacancies by way of appointment when

the unexpired portion of the term does not exceed three-quarters of the term in circumstances

where a holder office has been removed from office.

[219]    Both Ms Jordan and Mr Masson objected to the proposed amendments on the grounds

that they were an attack on the democratic processes of the organisation, and on the interest of

fairness and member democracy.

[220]   Both objectors submitted:

[T]he original Rule was deliberately drafted to ensure members would be the final

arbitrator on the manner in which an elected official had performed their duties and

carried out their responsibilities.

…

The proposed amendments seek to alter this to place final arbitration and decision

making in the hands of the Executive; or taken altogether with other proposed

amendments, in the hands of a potentially, factional-controlled sub-committee of the

67

Executive.

[221]    The objectors contended that the proposed rules denied the intention of section 5 of the

Act; was oppressive, unreasonable and unjust as expressed at section 142; would act as a

disincentive for member participation in the organisation and should be rejected as being

contrary to the Act.

[222] It would appear that this particular rule is unique to the Union. Mr Payne has

submitted that the Union was the only organisation that explicitly enables a person who has

been removed from office to subsequently nominate for that same office.

[223] There is insufficient evidence before me to ascertain whether or not this rule was

originally drafted in order to ‘place the final arbitration and decision making’ in the hands of

the members. Neither Mr Payne nor the objectors have provided any evidence in relation to

the intention of the authors of the provision. Even if the original intention is known it does not

have any bearing on whether the alteration is capable of certification.

[224] I refer to section 146 of the Act which provides in relation to the filling of casual

vacancies:

146(1) The rules of an organisation may provide for the filing of a casual vacancy in

an office by an ordinary election, or, subject to this section, in any other manner

provide in the rules.

146(2) Rules made under subsection (1) must not permit a casual vacancy, or a further

casual vacancy, occurring within the term of an office to be filled, otherwise than by

an ordinary election, for so much of the unexpired part of the term as exceeds:

(a) 12 months; or

(b) three-quarters of the term of the office

[2016] FWCD 1492

whichever is greater.

[225] There is nothing on the face of the proposed alterations which is contrary to the

provisions of s.146(1) and (2); or of any other provision of the Act.

[226]       In addition, I reiterate that the question of whether or not such a rule is preferable or

otherwise is not relevant to my role as Delegate under s.159.

[227] Consequently I reject the submission that the proposed alterations to rule 47 offend

against the Act because they fail to provide for democratic control.

In general

[228]    As I have noted above, it is not open to me to refuse to certify the proposed alterations

because they could, in a broad sense, be misused in such oppressive, unreasonable or unjust

ways so as to circumvent the democratic principles of the organisation.

[229] I have not found any other reasons to refuse certification of the transacted rules

because they contravene s.142(1)(c) in so far as they impose upon applicants for membership,

or members of the organisation, conditions, obligations or restrictions that, having regard to

Parliament’s intention in enacting the Act and the objects of the Act and the Fair Work Act

are oppressive, unreasonable or unjust; and consequently are contrary to the Act or are

otherwise contrary to law.

[230]    As such, it is my conclusion that the alterations comply with and are not contrary to

the Fair Work (Registered Organisations) Act 2009, the Fair Work Act 2009, modern awards

and enterprise agreements, and are not otherwise contrary to law.

Have the proposed alterations been transacted under the rules of the organisation?

[231]    I now turn to the question of whether the alterations have been made under the rules of

the organisation.

[232]    Mr Scanlon, Mr Masson and Ms Jordan each objected to the rule altering procedure of

the National Conference. For example, Mr Masson submitted that:

It may be inferred that the National Conference adopted the proposed changes without

full and frank disclosure of the rationale or necessity for such changes. Other members

present at the National Conference as observers were forbidden the opportunity to

raise questions or concerns about the proposed amendments.

Certainly, no attempt to canvass members’ views beyond those of Conference

Delegates has occurred. Indeed, the notice of the Rule changes posted on the

organisation’s website fails to even identify what the current rule is that is being

68

amended.

[233] Mr Scanlon submitted:

[2016] FWCD 1492

I am an elected LEC member and an NEC delegate, and the first time that I have been

th

given or sent a copy of the proposed rule changes was yesterday, the 25 of

November, when hard copies were given to a meeting of LEC members of the Vic/Tas

Branch. This is a month or so after the proposed rules were presented and approved at

the National Conference. Yesterday, several times LEC members tried to question

what the proposed rule changes were about and what impact they would have but were

69

refused answers or allowed discussion.

[234] Regulation 126 of the Fair Work (Registered Organisations) Act 2009 (the

Regulations) states as follows

126(1) For subsection 159(1) of the Act, if an alteration of the rules (other than the

eligibility rules) of an organisation is made, the organisation, within 35 days after the

alteration is made, the organisation, or within any additional period, the General

Manager allows, must:

(a)	lodge with FWA a notice setting out the particulars of the alteration; and
(b)	if the organisation has a web site – publish on its web site a notice that

the notice mentioned in paragraph (a) has been lodged.

126(2) The notice must contain a declaration, signed by an officer of the organisation

authorised to sign the declaration, stating:

(a) that the alteration was made in accordance with the rules of the

organisation; and

(b) the action taken under those rules to make the alteration; and

(c) that the particulars set out in the notice are true and correct to the best of the

knowledge and belief of the signatory.

126(2) The General Manager may refuse to certify, under subsection 159(1) of the

Act, an alteration of the rules unless this regulation is complied with.

[235] In the declaration signed on 22 October 2015, Ms Louise Arnfield, President of the

Union, stated that the alterations were made in accordance with the rules of the Union.

[236] The alterations were made at a meeting of the National Conference. Ms Arnfield

provided particulars of how the alterations had been transacted in accordance with the rules of

the Union, for example, by providing the requisite notice and notification to the requisite

bodies of the proposal to amend the rules of the Union.

[237]    The actions declared to have been taken are consistent with the rule altering procedure

set out in rules 21, 23, 35, 45 and 60 of the Union’s rules.

[238] There is no requirement under the Union’s rules that members present as observers

have the ability to raise questions or concerns about the proposed amendments. Nor is there a

requirement specifically to ‘canvass members’ views’.
[2016] FWCD 1492

[239]    Ms Arnfield also stated that she had caused the preparation of a notice to be published

on the website of the Union, that a notice setting out the particulars of an alteration of the

rules (other than the eligibility rules) of the Union had been lodged with the Commission.

[240] The declaration stated that a copy of the notice to be placed on the website was

attached and marked ‘LA – 5’. That attachment stated:

On 22 October, 2015 the FSU lodged with the FWC a notice setting out the particulars

of the proposed alterations to the rules of the FSU (other than the eligibility rules)

The proposed changes are attached Proposed FSU Rule amendments 2015.pdf.

The proposed alterations were approved by the National Conference on 20 October

2015 in accordance with the rule of the Union.

[241]    That notice provides the information required by Regulation 126.

[242]    I note however that the notification of the changes to rules was lodged by the National

President.

[243]    Paragraph 8 of the declaration states as follows:

…a resolution of the National Conference authorises me as the National President to

take all steps necessary to have each amendment to the rules (in accordance with

resolutions 1–5 certified by the Fair Work Commission and sign a separate declaration

pursuant to Regulation 126(2) of the Fair work (Registered Organisations) Regulations

2009 (Cth) for each resolution of resolutions 1–5 and promptly lodged the declarations

with the Fair Work Commission (attached and marked “LA–4 – see Resolution 10).

[244]    Resolutions 6–10 were attached to the prescribed information. The resolutions, among

other things, authorised the National President to take all steps necessary to have the

amendments to the rules certified by the Commission; and sign the declaration pursuant to

regulation 126(2) of the Regulations if the National Secretary were to fail to do so by 5pm on

Friday 23 October 2015.

[245]    I note that Ms Arnfield signed and lodged the prescribed information on Thursday 22

October; a day earlier than the deadline as prescribed by Resolution 10.

[246]    Ms Arnfield’s authority to lodge the prescribed information was not objected to by Ms

Jordan.
[247]	Rule 39 of the Union’s rules provides among other things that the National Secretary
shall:
Lodge or file in the name of the Union or cause to be so lodged or filed any claims,
demands, disputes or other matters relating to the members of the Union with any
industrial tribunal or authority.

[2016] FWCD 1492

[248]    The question is whether the National President can, under the rules of the organisation,

lodge with the Commission prescribed information for the alterations of rules under s.159(1)

of the Act.

[249] Rule 38 provides for the powers of the National President. The National President

must among other things:

comply with the directions of the National Conference and National Executive and act

at all times in a manner consistent with the National Conference and National

Executive.

[250]    Ms Arnfield stated in her declaration of 22 October 2015 that the National Secretary

was overseas until 27 October 2015 and therefore was not able to lodge the alterations with

the Commission within the required timeframe.

[251]    I find that the National President was, albeit prematurely, acting in manner consistent

with a decision of the National Conference, to wit, taking all steps necessary to have each

amendment to the rules certified by the Commission and to have the relevant declaration

signed and lodged with the Commission.

[252] On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[253] I certify accordingly under subsection 159(1) of the Fair Work (Registered

Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577795>
[2016] FWCD 1492

43

The Master Plumbers’ and Mechanical Services Association of Australia [2012] FWAD 6715.

44

The Master Plumbers’ and Mechanical Services Association of Australia [2012] FWAD 6715, para. [24].

45

Submission of Rodney Masson and others, 3 February 2016, pp. 5–6.

46

Cameron v Australian Worker’s Union (1959) 2 FLR 45.

47

Submission of Fiona Jordan, 14 November 2015, pp. 4–5.

48

Submission of Fiona Jordan, 14 November 2015, pp. 4–5.

49

Submission of Fiona Jordan, 14 November 2015, p. 5.

50

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, para. [85].

51

See Ruth Margaret Geneff v FE Peterson; Brendan Wood; L Farelly; T Bryden; J Drever; R Broomfield; C George; R

Smith; K Boyd; P Mcgarry; K Collins and the Clothing and Allied Trades Union of Australia [1986] FCA 432; 19 IR 40

(5 December 1986), para [114].

52

Submission of Rodney Masson and others, 12 November 2015, p. 7.

53

McConville v Finance Sector Union of Australia [2015] FWC 3224 at para. [43].

54

McConville v Finance Sector Union of Australia [2015] FWC 3224 at para. [44].

55

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, para. [110].

56

See, for example, Owens v Australian Building Construction Employees and Builders Labourers Federation (1978) 46

FLR 16.

57

46 FLR 16; 19 ALR 569.

58

21 FCR 289, pp. 292–293.

59

Section 164 of the Act enables a member of an organisation to apply to the Federal Court for an order under this section in

relation to the organisation giving directions for the performance or observation of any of the rules of an organisation by

any person who is under an obligation to perform or observe these rules. Section 164A enables a member of an

organisation to apply to the Federal Court for an order directing one or more persons (who may be, or include, the person

who breached the rules or rules) to do specified things that will, in the opinion of the Court, as far as is reasonably

practicable, place the organisation in the position in which it would have been if the breach of the rule or rules had not

occurred.

60

See Dickason v Edwards and Others (1910) 10 CLR 243, p. 255 and Australian Workers’ Union and Others v Bowen and

Others [1948] 77 CLR 601, p. 631.

61

See Salemi v MacKellar (No 2) (1977) 137 CLR 396; 14 ALR 1.

62

Lynch v Waters [1967] 11 FLR 116, p. 123.

63

[1967] 11 FLR 116, p. 112–123, per Joske J. See also Joyce and Other v Christoffersen and Others [1990] 26 FCR 261, p.

296.

64

Joyce v Christofferson (1990) 26 FCR 261, p. 296.

65

See Pickersgill v Seamen’s Union of Australia (1990) 21 FCR 289.

66

(1981) 54 FLR 129, p.166.

67

Submission of Rodney Masson and others, 12 November 2015, p. 8.

68

Submission of Rodney Masson and others, 12 November 2015, p. 5.

69

Submission of David Scanlon and others, 26 November 2015, p. 1.

1

Submission of Fiona Jordan, 14 November 2015, p. 1; submission of Rodney Masson and others, 12 November 2015, p. 2.

2

Submission of Rodney Masson and others, 12 November 2015, p. 3.

3

Submission of Rodney Masson and others, 12 November 2015, pp. 4–5.

4

Submission of Rodney Masson and others, 12 November 2015, pp. 4–5. Ms Jordan submits a similar claim in her

submission of 14 November 2015, p. 3.

5

Submission of Fiona Jordan, 14 November 2015, p. 2.

6

Submission of David Scanlon, 26 November 2015, p. 1.

7

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, paras. [35]–[42].

8

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, paras. [48]–[49].

9

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, para. [4].

10

Flight Attendants’ Association of Australia [2015] FWCD 6955 at para. [6].

11

Health Services Union [2014] FWCD 3522.

12

(2015) 227 FCR 95.

13

Hird v CEO of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95, para. [205].

14

Hird v CEO of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95, para. [210].

15

Butterworth’s Concise Australian Legal Dictionary, Third Edition, pp. 229, 406.

16

Roots v Mutton and Others (1978) 28 ALR 439, p. 441.

17

Correspondence from James Stedman, Hall Payne Lawyers to the Fair Work Commission, 20 January 2016.

18

Submission of Rodney Masson and others, 12 November 2015, p. 6

19

Submission of Rodney Masson and others, 12 November 2015, p. 5.

20

Submission of Rodney Masson and others, 12 November 2015, p. 6.

21

Submission of Rodney Masson and others, 12 November 2015, p. 7.

22

Submission of Fiona Jordan, 14 November 2015, p. 4.

23

Submission of Fiona Jordan, 14 November 2015, p. 4.

24

Submission of Rodney Masson and others, 3 February 2016, p. 6.

25

Municipal Officers’ Association of Australia v Lancaster, [1981] FCA 151; (1981) 54 FLR 129; per Deane J, p.165.

26

Municipal Officers’ Association of Australia v Lancaster, [1981] FCA 151; (1981) 54 FLR 129; per Evatt and Northrup JJ,

p. 150.

27

(1946) 56 CAR 561.

28

See The Master Plumbers’ and Mechanical Services Association of Australia [2012] FWAD 6715, paras. [10] – [14].

29

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, para. [64].

30

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, para. [65].

31

Huth v Clarke 25 Q.B.D 391, 345.

32

See Forest Marsh Pth Ltd v Resource Planning and Development [2007] TASSC 50 (27 June 2007) – see also in general

Huth v Clarke 25 Q.B.D 391; and Bayly v Municipal Council of Sydney 1927 28 NSWSR 149.

33

1927 28 NSWSR 149, pp. 153-154.

34

[2007] TASSC 50 (27 June 2007) per Underwood CJ, para. [33] citing Aronson, M, Dyer, B and Groves, M Judicial

rd

Review of Administrative Action, 3 edition, 2004.

35

Rule 28 of the rules of the Finance Sector Union of Australia.

36

Chip le Grand ‘Axe looms for executive as Financial Sector Union feud comes to head’, article in The Australian

newspaper dated 3 February 2016.

37

Chip le Grand ‘Axe looms for executive as Financial Sector Union feud comes to head’, article in The Australian

newspaper dated 3 February 2016.

38

McConville v Finance Sector Union of Australia [2015] FWC 3224, para. [43].

39

Submission of Rodney Masson and others, 12 November 2015, p. 7.

40

Submission of John Payne, Hall Payne Lawyers, 18 December 2015, para. [66].

41

Allshorn v Stapleton (1984) 4 FCR 236.

42

Allshorn v Stapleton (1984) 4 FCR 236, p. 238; per Woodward and Northrup JJ.