Frazer, J. v Cervini, E
[1992] FCA 552
•29 JULY 1992
Re: JUDITH FRAZER
And: ERICA CERVINI; JOANNE DUNCAN; GERARD FAHEY; BILL GASKELL; HENRY HALASA;
ROSS HUDSON; PETER KRAUSZ; BRIAN MARTIN; PHILLIP MORISON; JEFFREY NEAL; JEANNE
REYNOLDS and BARRY WOOD
No. V I35 of 1992
FED No. 552
Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Industrial Law - trade union - rules - resolution of council that secretary be suspended - whether effective to suspend secretary from position of secretary or only from performing certain duties - whether subsequent conduct admissible in construing resolution.
Federal Court Rules O.29.
Seamen's Union of Australia v. Adelaide Steamship Company Limited (1976) 46 FLR 444.
Roughan v. Day (1991) 32 FCR 581.
HEARING
MELBOURNE
#DATE 29:7:1992
Counsel for the applicant: A. Watson
Solicitors for the applicant: Gill, Kane and Brophy
Counsel for the respondent: S. Rothman
Solicitors for the respondent: Maurice Blackburn and Co.
Counsel for Independent Teachers
Federation (Intervening): K. Bell
Solicitors for Independent
Teachers Federation: Geoffrey Edwards and Co.
JUDGE1
The applicant in this proceeding seeks to establish the invalidity of a resolution affecting her. The resolution was passed by a body describing itself as the SACSS Council on 19th June 1992. SACSS is an acronym for Staff Association Catholic Secondary Schools. As it appears in the minutes of the meeting of the SACSS Council on that date, the resolution is as follows:
"In the light of the findings of the report of the Council subcommittee, the Council express a vote of no confidence in the Secretary. In
order to promote and assist the interests of
members and protect the welfare of members, we therefore resolve that Judy Frazer be suspended on full pay pending resolution of the conflict because the office of the Union cannot function effectively in her presence."
It is common ground that the applicant is the person referred to as "the Secretary" and as "Judy Frazer".
Many issues arise in the proceeding. It is unnecessary and probably undesirable that I detail them at this stage. The parties have requested jointly that I should determine as a preliminary issue the question of the proper construction of the resolution. I have decided to do so, pursuant to O.29 r. 2 of the Federal Court Rules.
It is common ground that the applicant held the elected position of secretary, and that her duties as secretary involved full-time paid employment, which included being in charge of a union's staff and office. The question which divides the parties is whether the resolution was effective to suspend the applicant from her position of secretary, or only from her duties in relation to the union's office and staff. Mr. Watson of counsel for the applicant contends for the former. Mr. Rothman of counsel for the respondents, members of the SACSS Council, contends for the latter. Mr Bell of counsel for the Independent Teachers Federation, intervening in relation to other issues, did not make a submission on the point.
The rules of SACSS do not provide for any specific duties of the secretary, other than attendance at certain meetings. Without prejudice to other issues which arise in this case, it would ordinarily be open to a union's governing body to allocate or withhold duties from an elected officer, in the absence of rules prescribing duties. Normally, such a governing body would not be bound to afford natural justice to the person concerned, in withholding duties. An attempt to suspend from an elected office, however, might mean the implication of the principles of natural justice, requiring procedural fairness.
On the face of it, the resolution is a resolution to suspend which is unqualified. Ordinarily, it would be construed as involving suspension from all that to which the person concerned was entitled. It clearly applied to the applicant in her capacity as secretary; she is mentioned both by reference to her elected office and her name. Powerful support for the proposition that the resolution suspends the applicant from her elected office is the fact that the resolution includes a vote of no confidence. Such a vote is normally expressed in relation to an elected person and indicates the desire of the meeting concerned to be rid of that person from an elected office. If all that had been desired was to prevent the applicant from performing her functions in relation to the union office and staff, it would have been easy to formulate appropriate words to that effect.
Counsel for the respondents relied on the concluding words of the second sentence of the resolution as indicating a limitation on the meaning of the word "suspended", by reason of its context. Those words, on their face, help to explain the reason for the resolution, but they do not necessarily limit it. This is especially so in the light of the generality of the vote of no confidence and the opening words of the second sentence.
In my view there is nothing in the resolution itself which suggests that it should be read otherwise than as suspending the applicant from her elected office as secretary.
An issue arose as to whether the subsequent conduct of the parties could be relied on as an aid to construing the resolution. The matters relied on were as follows. The applicant remained at the meeting for some time after the resolution was passed. The meeting subsequently passed a resolution in the following terms:
"that Council direct Patricia Hodgson, the
present assistant secretary, to administer the office of SACSS on behalf of Council until
further notice."
By a letter dated 22nd June 1992, which was the Monday following the meeting at which the resolution was passed, Ms Hodgson, who signed as assistant secretary, communicated the terms of both resolutions to the applicant. The letter contained the following paragraph:
"I am directed by the president to inform you that as a consequence you are not required to perform any duties arising from your employment by SACSS. You are directed not to attend the office except to attend council or committee
meetings. Any request you have of the office is to be directed to myself."
The applicant did attend subsequent meetings and also continued to receive her pay and the use of a motor car allocated to her.
It is a well established rule that the subsequent conduct of parties is not admissible on the question of construction of a document. In relation to awards of industrial tribunals this proposition was affirmed in Seamen's Union of Australia v. Adelaide Steamship Company Limited (1976) 46 FLR 444. It may be permissible to rely on a contemporaneous resolution, i.e. a resolution passed at the same meeting, as evidence of the intention of a body passing a resolution. See Roughan v. Day (1991) 32 FCR 581. The intention of the makers of a document is ordinarily to be gathered from the document itself. In accordance with this rule I should not look at the subsequent conduct of the parties.
Even if I were wrong in that conclusion and subsequent conduct were to be looked at, that conduct would not alter my view of the resolution as it appears on its face. The fact that the applicant remained at the meeting is consistent with her expressed view that the resolution itself was invalid. There is an issue in the proceeding as to whether the applicant left the meeting voluntarily, as is recorded in the minutes, or whether she was asked to leave, as she says in her affidavit. Her attendance at subsequent meetings, without any objection on the part of the council, does not establish the intention of the council at the time of the suspension resolution that this should occur. The receipt of remuneration is in accordance with the terms of the resolution itself.
The letter of 22nd June could not be taken as expressing the intention of the council at the time when the resolution was passed. At best, it reflects the view of one member of the council, namely the president, that view being expressed after the making of the resolution, that its intention was to continue to permit the applicant to attend meetings. No member of the council would be permitted to give evidence in these proceedings of his or her subjective intention as to the meaning of the resolution, whether that intention was formed at the meeting at which the resolution was passed or afterwards. I should therefore not pay any regard to a letter which would purport to give such evidence as to the subjective intention of one member.
For these reasons I am of the view that, on its true construction, the resolution of the SACSS Council of 19th June 1992 purported to suspend the applicant from her elected office as secretary and not merely from the duties which attached to that office.
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