Fohmsbee, Robert Clive v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

[1997] FCA 1461

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - election inquiry - whether Court has jurisdiction under Workplace Relations Act 1996 (Cth) to conduct inquiry - inquiry must be in relation to an election for an office in an organisation or a branch of an organisation - whether rules of organisation provide for branches of the organisation - whether office of State Organizer, Printing Division constitutes an office of a voting member of a collective body of an organisation or branch of an organisation.

WORDS & PHRASES - “office”, “branch”

Workplace Relations Act 1996 (Cth), ss 4, 218, 219

Australian Electoral Commission v David Hickson (unreported, Full Federal Court, 5 November 1997), cited
Williams v Hursey (1959) 103 CLR 30, cited
Imlach v Daley (1985) 7 FCR 457, cited
Neilson v Corsetti (unreported, Northrop J, 21 November 1997), cited
McKay v Australian Workers’ Union (1968) 12 FLR 182, cited
Re Bench Officials(Federal) (1963)Award (1976) 27 FLR 207, cited

ROBERT CLIVE FOHMSBEE v
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING
AND KINDRED INDUSTRIES UNION
NG 894 of 1997

BRANSON J
SYDNEY
19 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 894  of   1997

BETWEEN:	ROBERT CLIVE FOHMSBEE APPLICANT
AND:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		19 DECEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The inquiry be terminated.

1. It be certified pursuant to s 343(1) of the Workplace Relations Act 1996 that the applicant acted reasonably in lodging the application for the inquiry.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 894 of 1997

BETWEEN:	ROBERT CLIVE FOHMSBEE APPLICANT
AND:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION RESPONDENT

JUDGE(S):	BRANSON J
DATE:	19 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

IN THE MATTER OF AN ELECTION FOR AN OFFICE IN
THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION

THE APPLICATION

On 27 October 1997, Robert Clive Fohmsbee (“Mr Fohmsbee”), being a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Organisation”) who claims that there has been an irregularity in relation to an election for an office in a branch of the Organisation, made an application to the Court for an inquiry into the matter (s 218 of the Workplace Relations Act 1996 (Cth)).

The office identified in the application is that of “Organiser, Printing Division, NSW Branch”.  It may be noted that the rules of the Organisation (“the Rules”) do not expressly create a New South Wales Branch of the Printing Division of the Organisation.  Subrule 49.4 of the Rules provides that there shall be a Printing Division of the Organisation and that the membership of the Printing Division shall be divided into a number of regions of which the New South Wales Region is one.  Subrule 49.32 of the Rules provides for the election to certain offices including the offices of “State Organizers - Printing Division”.  It is an election to an office in the New South Wales Region of “State Organizer - Printing Division” within the meaning of subrule 49.32 into which the application seeks an inquiry.

PRELIMINARY MATTERS

On 18 November 1997, the application was listed before me for directions.  On that day, the applicant was represented by counsel, and I gave leave to the respective counsel for first, Ms Amanda Perkins, the person alleged to have been irregularly elected to office;  secondly, Mr Roy Hill, the Australian Electoral Commission’s Returning Officer for the relevant election; and thirdly, the Organisation and its National Secretary to appear.

Section 219 of the Workplace Relations Act 1996 (Cth) (“the Act”) provides as follows:

“Where:

(a)an application for an inquiry has been lodged with the Court under section 218;  and

(b)the Court is satisfied that there is reasonable ground for the application;

the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to  have been instituted.”

On 18 November 1997, after hearing counsel for Mr Fohmsbee, and having regard to an undertaking given by Mr Fohmsbee by his counsel to place before the Court a certified copy of the Rules, I indicated that I was satisfied that there was reasonable ground for the inquiry. I then heard from all counsel present on the remaining issues raised by s 219 of the Act.

After hearing the submissions of counsel, all of whom stressed the desirability of the inquiry being conducted promptly, I fixed the time of 10.15 am on Friday 12 December 1997 as the time at which the inquiry would commence, and the Federal Court of Australia in Sydney as the place for conducting the inquiry.  I directed that Ms Amanda Perkins, Mr Roy Hill and the Organisation be given notice of the time and place fixed for the hearing.  My direction that the Organisation be given such notice reflected my view that it would be desirable for the Organisation to be heard on the issue of the correct interpretation of its rules (see Australian Electoral Commission v David Hickson (unreported, Full Federal Court, 5 November 1997) per Northrop ACJ at p 10 of his reasons for judgment and Branson and Marshall JJ at p 14 of their reasons for judgment).

Upon the commencement of the hearing of the inquiry, I allowed to appear, as persons justly entitled to be heard on the inquiry, counsel for Mr Fohmsbee, Ms Perkins, Mr Hill and the Organisation.

JURISDICTION OF THE COURT

Mr Rothman SC, counsel for Ms Perkins, contended as a preliminary point that the Court has no jurisdiction to conduct an inquiry into the election referred to in the application.   Although directions had been made requiring the exchange of statements of facts, issues and contentions and of written submissions, the other parties represented at the inquiry had received virtually no notice of the challenge to the Court’s jurisdiction.  I therefore heard the submissions of Ms Perkins on the issue of the Court’s jurisdiction and gave leave to the other parties to file and serve written submissions on the issue of the Court’s jurisdiction.   Such leave has now been exercised.

The jurisdiction of the Court to conduct an inquiry into an election comes from s 218 of the Act. Section 218 is in the following terms:

“Where a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Court into the matter.”

It is accepted on all sides that the Organisation is an organisation registered under the Act and thus an “organisation” within the meaning of s 218 of the Act (s 4(1) of the Act). It is similarly accepted that Mr Fohmsbee is a person who is a member of the relevant organisation within the meaning of s 218 of the Act. The contention that the Court does not have jurisdiction to conduct the inquiry sought by the application is based on the requirement of s 218 of the Act that the claim of irregularity must relate to “an election for an office in the organisation or a branch of the organisation”.

Section 4(1) of the Act contains the following definition:

“In this Act, unless the contrary intention appears:
  ...
“office”, in relation to an organisation or branch of an organisation, means:

(a)an office of president, vice president, secretary or assistant secretary of the organisation or branch;

(b)the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:

(i)the management of the affairs of the organisation or branch;

(ii)the determination of policy for the organisation or branch;

(iii)the making, alteration or rescission of rules of the organisation or branch;

(iv)the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules;

(c)an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

(i)existing policy of the organisation or branch;  or

(ii)decisions concerning the organisation or branch;

(d)an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii);  or

(e)the office of a person holding (whether as trustee or otherwise) property:

(i)of the organisation or branch;  or

(ii)in which the organisation or branch has a beneficial interest;”.

This definition is clearly intended to limit for the purposes of the Act what might otherwise be regarded as an office in relation to an organisation or branch of an organisation. It is plain that an individual might be an officer of an organisation under the rules of that organisation and yet not hold an “office” in relation to that organisation or a branch of that organisation within the meaning of the definition of “office” in s 4(1) of the Act.

No party submitted that s 218 of the Act discloses an intention to displace the definition of “office” contained in s 4(1) of the Act. The crucial issue for determination on the preliminary point is thus that of whether the office of “State Organizer - Printing Division” referred to in subrule 49.32 of the Rules is an “office” of an organisation or of a branch of an organisation within the meaning of the definition of “office” contained in s 4(1) of the Act. It is accepted that it is only paragraph (b) of such definition that needs be considered in this case.

Determination of the issue of the Court’s jurisdiction requires consideration to be given, first, to the structure of the Organisation for the purpose of determining whether the New South Wales Region of the Printing Division is a branch of the Organisation, and secondly, to whether the office of a State Organizer - Printing Division constitutes “the office of a voting member of a collective body of the organisation or branch”, being a collective body that has power in relation to any of the matters specified by para (b) of the definition of “office” contained in s 4(1) of the Act.

The Organisation came into being as a result of a number of amalgamations, including the amalgamation of the operations, administration, funds and resources of the Automotive, Food, Metals and Engineering Union (“the AFMEU”) and the Printing and Kindred Industries Union (“the PKIU”).  

The Act contains no definition of a “branch of an organisation”. Nor do the Rules expressly provide for “branches” of the Organisation.  These factors do not of themselves mean that no “branch” of the Organisation can be identified within the meaning of the definition of “office” in s 4(1) of the Act. It is necessary for the Rules to be considered as a whole for the purpose of determining whether, as a matter of fact, the Organisation’s structure does result in its having a branch or branches, within the meaning of the Act.

A number of authorities has given consideration to the nature of a branch of an industrial organisation.  In Williams v Hursey (1959) 103 CLR 30, at 54-55, Fullagar J said of a branch of an organisation of employees:

“It has no separate identity - no existence apart from the registered organization, of which it is an integral and inseverable part.   Its members are merely a section of the total membership of the federation - locally organized for the sake of convenience, but in no respect independent of the federation, and in  all respects subject to the control of the federation.”  

In Imlach v Daley (1985) 7 FCR 457, at 462, Evatt and Northrop JJ quoted the above passage, and noted at 463 that, as to the rules of the organisation of employees under consideration in that case that:

“There is no doubt that the branches of the Federation perform a very important function under the rules of the Federation. ... Some of the branches are determined on an industry basis within States.  Others are based on State boundaries, while others, as in Tasmania, are based on parts of a State.  ... Under the standard branch rules, wide powers are given to branches and committees of management within branches.  All this is accepted.  Nevertheless, the branches remain creatures of the rules of the Federation, and those rules may be altered in accordance with the provisions of the rules.”

Northrop J gave consideration to the Rules which I am here required to consider in Neilson v Corsetti (unreported, Federal Court, Northrop J, 21 November 1997).   His Honour said:

“...the Rules cover some 200 pages of A4 paper and are very verbose.  Although they appear to adopt a pattern, there is no clear setting out of the various committees, by whatever name, of the Union, the composition of the committees and the powers of the committees.  Strangely, the Rules make no reference to branches of the Union despite the repeated use of the words “organisation” and “branches” in the Act in connection with rules of organisations and branches. This can be explained, possibly, by reference to the history of the Union which resulted from the amalgamation of a number of disparate organisations which resulted in one organisation, the Union, and confusing those earlier organisations with branches, some of which are now called Divisions. It is difficult to determine what constitute the branches of the Union, assuming there are branches. An organisation is not required to have branches. The Union is the organisation but comprises four Divisions. It also comprises State groupings. Each Division has many of the attributes of an organisation but the State groupings cut across Division boundaries. Some members of the Union are not attached to a Division but all members of the Union are attached to a State group.
...
The Rules do not contain any rule constituting branches of the Union.  The Rules do not appear to contain any provision enabling any committee of the Union to create branches.  At the hearing, there was a dispute between the parties as to whether there were branches and if so what were the branches.”

Although his Honour remarked that “[p]ossibly, the Union does not have branches”, he did not ultimately determine whether or not the Organisation has branches.

The Rules provide for a complex and hierarchical system of governance of the Organisation.

The National Conference is the “supreme governing body” of the Organisation (rules 3 and 4 of the Rules).   The National Conference consists of:

“(a)     The National Council;
  (b)     Regional delegates to National Conference;
  (c)     Technical and Supervisory Division delegates to National Conference;
  (d)     Vehicle Division delegates to National Conference;
  (e)     Food and Confectionary Division delegates to National Conference;
  (f)     Printing Division delegates to National Conference.”  (subrule 3.2)

The regional delegates to National Conference are to be nominated and elected from members of the Organisation other than the members in the Divisions mentioned in subparagraphs (c), (d), (e) and (f) above (subrule 3.3).   State Organizers - Printing Division are not ex officio Printing Division delegates to National Conference (subrule 3.7).

A National Council is established by rule 5 of the Rules.  It is the committee of management of the Organisation subject to the powers and decisions of National  Conference.  State Organizers - Printing Division are not ex officio members of National Council.

Rule 19 of the Rules establishes for each State a State Conference.   The powers of each State Conference are limited to the particular State and such powers are subject to the powers and authority of the National Conference and National Council.  Rule 21 establishes in each State a State Council, and subrule 22.2 provides that State Councils “shall generally serve the purpose of an executive body of the State Conference in the State concerned.”  State Organizers - Printing Division are not ex officio members of either State Conference or State Council (subrules 21.3,  49.36 and 49.38).  

Rule 49 of the Rules is entitled “Special Enabling Rule - Amalgamation of AFMEU and PKIU”. Subrule 49.4(a) establishes a Printing Division in the Organisation.  Subrule 49.4(c)(i) provides that, for the purposes of the Rules, the membership of the Printing Division shall be divided into seven regions, there being a region covering each State and a region covering the Australian Capital Territory.  Members of the Printing Division are members of the Region in which they work (subrule 49.4(c)(ii)).

Subrule 49.5 of the Rules creates a Federal Conference of the Printing Division.  The Federal Conference of the Printing Division consists of the Federal President - Printing Division;  the Federal Secretary - Printing Division;  the Federal Assistant Secretary - Printing Division;  the Regional Secretary - Printing Division from each Region; and delegates from each Region.  The Federal Council of the Printing Division has, subject to the Rules and the decisions of the National Conference, National Council and National Administrative Committee, the management and control of the Printing Division.   State Organizers - Printing Division are not ex officio delegates from their respective regions to the Federal Conference of the Printing Division (subrule 49.34).

Subrule 49.8 of the Rules creates a Printing Division Executive Committee which, when the Federal Conference of the Printing Division is not in session, and subject to decisions of the National Conference, National Council and National Administrative Committee, has all of the powers of the Federal Conference of the Printing Division.  The Printing Division Executive Committee  consists of the Federal President - Printing Division;  the Regional Secretary - Printing Division from each Region;  the Federal Secretary - Printing Division; and the Federal Assistant Secretary - Printing Division.

Subrule 49.14(a) of the Rules constitutes in each region a Regional Council.   In each State, other than Tasmania, the Regional Council is to include “such number of organizers as may be determined by the Regional Council with the approval of the National Council” (see Subrule 49.14(a)(vi)).   Subrule 49.14(c) provides that -

“The Regional Council shall conduct and manage the business of the Printing Division within the Region.”

Subrule 49.19 provides as follows:

“State Organizers - Printing Division shall, in addition to the duties, responsibilities and entitlements imposed on them under sub-rule 24.5, be responsible for the organization of the printing Division of the Union in the Region and, subject to the powers of State Council and the State Secretary under sub-rule 24.3, carry out any directions given to them by the Regional Council or the Regional Secretary - Printing Division.”

Subrule 24.5 is in the following terms:

“STATE ORGANISERS

State organisers shall be responsible for the general organising of the Union in the State. They shall carry out such other organising duties as are allocated to them by the State Council and shall be responsible to the State Secretary.

The State Organisers shall be entitled to attend other meetings of members and shall have the right to speak at all such meetings, provided however, that they shall have the right to move and second motions and vote only at bodies within the Union to which they have been duly elected in accordance with these Rules.”

Subrule 49.32 provides for the election of an unspecified number of State Organizers - Printing Division each four years.   As is mentioned above, subrule 49.14(a)(vi) provides that each Regional Council shall be constituted of, amongst other persons, “such number of organizers as may be determined by Regional Council with the approval of the National Council”.  There is no evidence before me which establishes that the office to which Ms Perkins was purportedly elected is the office of one of such number of organisers as the New South Wales Regional Council, with the approval of National Council, has determined shall be members of the New South Wales Regional Council.   It may be that on the proper construction of the Rules, the number of offices of State Organizers - Printing Division for which each State Returning Officer is required to conduct an election each four years pursuant to subrule 49.32 is such number as has been determined by the relevant Regional Council with the approval of the National Council for the purposes of subrule 49.14(a)(vi).  If the Rules are not construed in this way, they would appear to provide no mechanism for the identification of the actual State Organizers - Printing Division entitled to be members of the Regional Councils in the States other than Tasmania.  I note, incidentally, that the same difficulty appears to attend the identification of the Regional Vice-Presidents - Printing Division referred to in subrule 49.14(a)(ii).   Ultimately, I have not found it necessary to resolve this difficulty.

The function of the Regional Councils of the Printing Division of the Organisation is to “conduct and manage the business of the Printing Division within the Region” (subrule 49.14(c)).   

Subrule 49.20 of the Rules constitutes in each region a Regional Executive Committee, which, when the Regional Council is not in session, and subject to the decisions of the National Conference, National Council, State Conference, State Council and Regional Council, conducts and manages the business of the Printing Division within the region. State Organizers - Printing Division are not ex officio members of their respective region’s Executive Committee.

Although, as Northrop J pointed out in Neilson v Corsetti, the Rules make any determination of whether the Organisation has a structure which involves branches a difficult one, on balance, it seems to me that the Rules are not to be understood as constituting the regions of the Printing Division as branches of the Organisation.  The regions of the Printing Division are not a section of the total membership of the Organisation locally organised for the sake of convenience, but rather a section of the membership of the Printing Division of the Organisation locally organised for the sake of convenience.  The function of each Regional Council, as is mentioned above, is to manage the business of the Printing Division within its region;  such function is not to manage the business of the Organisation as a whole within such region (subrule 49.14(c);  see also subrules 49.17(f) and 49.20(b)).   It may be noted that subrule 49.21, which deals with general meetings, speaks not of members of the regions of the Printing Division, but rather of “members of the Region in the Printing Division” and “members of the Printing Division in the Region”.  Subrule 49.4(c) also suggests that members in the regions of the Printing Division are principally to be seen as members of the Printing Division, rather than as members of a section of the Organisation separate from the Printing Division.

Without deciding the question of whether or not the Organisation has branches, (whether State branches or branches within an industry, or branches on some other basis) I find, having regard to the hierarchical structure of governance described above, that the regions of the Printing Division are not themselves branches of the Organisation.  Such regions are, in my view, at the highest from the applicant’s point of view, sub-branches or subordinate bodies of that section of the Organisation known as the Printing Division (see McKay v Australian Workers’ Union (1968) 12 FLR 182 per Spicer CJ, with whom Smithers and Kerr JJ agreed, at 186).

I accept that the regions of the Printing Division 0are not mere extensions of the Printing Division and part of it in the sense that the agency of the Commercial Bank of Australia at the Alfred Hospital Premises in Prahran in the State of Victoria was described by the Full Court of the Australian Industrial Court in Re Bench Officials(Federal) (1963)Award (1976) 27 FLR 207 at 212 as being “but an extension of the Melbourne Branch and part of it”. However, in my view, the regions of the Printing Division lack the degree of independence of governance that the Act, in my view, envisages being enjoyed by branches of organisations (see, for example, ss 259, 268(6), 269(6), 271 and 281). It does not appear from the Rules, for example, that the regions of the Printing Division manage their own financial affairs (cf subrule 4.1 and subrule 6.1 with subrule 49.14(c); see also s 271 of the Act). It may be noted that s 259(1) of the Act, which refers to “a branch or part of a branch of the organisation”, recognises that organisations may have constituent parts of lesser significance than branches. In my view, a region of the Printing Division of the Organisation cannot be seen to be more than a part of what might be regarded as a section or branch of the Organisation, namely a part of the Printing Division.

It was initially submitted on behalf of the Organisation and the applicant that the office of State Organizer - Printing Division was an office within the definition in s 4(1) of the Act as the holder of such office was a voting member of a collective body of a branch of the Organisation, being a collective body with the powers in relation to one of the functions specified in paragraph (b) of the definition of “office”.  For the reasons given above I reject this submission.

Subsequently, it was submitted that the Court could act on the assumption that the Rules make no provision for branches, and that the holder of an office of State Organizer - Printing Division is the holder of an office within the meaning of the definition of “office” in s 4(1) of the Act on the basis that a State Organizer - Printing Division is a voting member of a collective body of the Organisation having power in relation to the management of the affairs of the Organisation, the determination of policy for the Organisation, and the making, alteration and rescission of Rules of the Organisation.

The Macquarie Dictionary, 2nd Ed, contains the following relevant definitions of “collective”

“1.      formed by collection.

2.       forming a collection or aggregate;  aggregate;  combined.

3.       pertaining to a group of individuals taken together.”

I conclude that the Regional Council of the New South Wales Region of the Printing Division of the Organisation is a “collective body” of the New South Wales Region of the Printing Division of the Organisation within the meaning of paragraph (b) of the definition of “office” in s 4(1) of the Act.

Nonetheless, I reject the submission that a State Organizer - Printing Division in the New South Wales Region of the Printing Division is a voting member of a collective body of the Organisation.  The Regional Council of the New South Wales Region of the Printing Division of the Organisation is by subrule 49.14(c) of the Rules charged with conducting and managing the business of the Printing Division within New South Wales.  It has no Organisation-wide responsibilities.  The definition of “office” in s 4(1) of the Act, in my view, discloses an intention to draw a distinction between offices of an organisation and offices of a branch of an organisation. Such distinction, in my view, is intended to reflect the difference between offices the holders of which carry organisation-wide responsibilities, and offices the holders of which carry only branch-wide responsibilities. If no such distinction were intended, the inclusion in the definition of references to a “branch of an organisation” would be otiose.   I do not consider that the office of a State Organizer - Printing Division is, within the meaning of the definition of “office” in s 4(1) of the Act, an “office of a voting member of a collective body of the organisation”.

As I have already concluded that an office of a State Organizer - Printing Division is not, within the meaning of the definition of an “office” in s 4(1) of the Act, an “office of a voting member of a collective body of ... [a] branch”, I conclude that the office of State Organizer - Printing Division in the New South Wales Region of the Printing Division is not “an office in the organisation or branch of the organisation” of which the applicant is a member for the purposes of s 218 of the Act.

I conclude that the Court does not have jurisdiction to conduct the inquiry sought by the application.  The inquiry taken to have been instituted when I fixed the time and place for conducting the inquiry sought by the applicant is terminated.

In view of the complexity, and, in a sense, novelty, of the issues relevant to the question of the Court’s jurisdiction, I certify under s 343(1) of the Act that the applicant acted reasonably in lodging the application for the inquiry.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:            

Counsel for the Applicant:	Mr J. Pearce
Solicitor for the Applicant:	Paul Murphy, Solicitor
Counsel for the Organisation:	Mr W. Haylen QC
Solicitor for the Organisation:	Taylor & Scott
Counsel for Ms Perkins:	Mr S. Rothman SC
Solicitor for Ms Perkins:	Geoffrey Edwards & Co
Counsel for Mr Hill:	Mr D. Godwin
Solicitor for Mr Hill:	Australian Government Solicitor
Date of Hearing:	12 December 1997
Date of Judgment:	19 December 1997