Frizziero, Carlo v Bogar, Freda

[1998] FCA 248

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 148 of 1998

BETWEEN:	CARLO FRIZZIERO Applicant
AND:	FREDA BOGAR Respondent

JUDGE:	EMMETT J
DATE:	2 MARCH 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: I have before me an application under Division 3 of Order 48 dealing with workplace relations proceedings. Section 209 of the Workplace Relations Act provides that a member of an organisation may apply to the Court for an order under the section in relation to the organisation. Under section 209(9) an order under the section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules. Under section 209(2), the Court must give any person against whom the order is sought an opportunity of being heard.

The applicant is the Federal President of the Victorian region of the Food and Confectionary Division of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Organisation”).  The proposed respondent is the Federal Secretary of that Division.  The rules of the Organisation provide that the National Conference may amend rules affecting the Food and Confectionary Division provided that any decision by the National Conference to amend rules which directly affects the Food and Confectionary Division are to have no effect unless approved by a majority vote of the Food and Confectionary Division.

On 20 October 1997, at a meeting of the Federal Executive, a resolution was carried calling on the National Council to take immediate steps to have the rules changed to ensure that the position of Federal Secretary of the Division becomes an honorary position on and from the declaration of the result of the 1998 election.  On 9 December 1997 the National Council resolved to authorise the National Secretary to conduct a postal ballot of the National Conference of the union as to the proposed rules change.  That ballot was conducted and by 16 January 1998 a majority of the National Conference delegates had voted to endorse the proposed change to the rules.

Accordingly, on 19 January 1998 the National Secretary of the Organisation sent a facsimile communication dated 16 January 1998 to the respondent asking her to take the necessary steps to implement the proposed rule change.  The complaint by the applicant is that to date no step has been taken by the respondent towards implementing the proposed amendment to the rules.

Under the rules, the Food and Confectionary Division Conference is to have the management and control of the affairs of the Division.  Under rule 47.8(j) the Federal Executive may refer a matter to the Conference and the Federal Executive may direct that the Conference deal with the matter by a postal ballot or a telephone hook-up.  Further, the rules provide that the Federal Executive of the Division are to meet at least once every four months.  The rules also provide that the Federal Secretary of the Division must, at the request of the Federal president, call a special meeting of the Federal Executive.

Finally, the rules also provide that the Federal Secretary of the Division shall call meetings of the Division Conference and Federal Executive and to implement the decisions of the National Conference, the National Council, the Conference of the Food and Confectionery Division and the Federal Executive of the Food and Confectionery Division.

The order sought by the applicant is a rule to show cause why the respondent should not be ordered to perform and observe the rules of the Organisation by taking one of the following three steps.

(a)Complying with the request of the National Secretary of the Organisation by letter to the respondent of 16 January 1998 and, as Federal Secretary of the Division, taking steps to have considered by Division Conference delegates the proposed rule change.

(b)Conducting forthwith a postal ballot of delegates to the Division Conference of the Division as to whether or not they approve the proposed changes to the rules of the Organisation agreed upon by National Conference.

(c)Calling as soon as practicable a meeting of the Federal Executive of the Division or, alternatively, rescheduling as soon as practicable the meeting of the Federal Executive of the Division originally scheduled for 20 February 1998 and cancelled on 19 February 1998.

The matter referred to in the last prayer concerns the regular four monthly meeting of the Division which had been scheduled to take place in Melbourne on 20 February 1998.  The Federal Secretary, the respondent, apparently cancelled that scheduled meeting because two of the six members were unable to attend.  Some question may arise as to her authority to do so. Be that as it may, the meeting was cancelled and, accordingly, the Federal Executive has not had the opportunity of referring to the Conference the question of approval of the proposed rule change.

In a letter of 25 February 1998 from the applicant's solicitors to the respondent, a request was made as to whether or not the respondent would call a meeting of the Federal Executive of the Division.  A letter was received from the solicitors for the respondent which does not acknowledge that letter but which says inter alia as follows:

As our client has explained to your client the meeting of the Executive scheduled for 20 February, 1998 did not take place because two delegates from New South Wales were unable to attend.  As you would also be aware our client is required to be in Sydney for the whole of next week. 

We are instructed by our client that she has never indicated at any time that the postponed meeting would not be reconvened.

Further, it is clear that this matter has a complicated history and we would seek your client's indulgences for time to take proper instructions.  We would anticipate providing a substantive reply by 13 March 1998. 

We look forward to your client's indication that it will not pursue Federal Court action until after that time.

The applicant's concern is apparently derived from the requirement of the rules that any vote for approval of a rule change is to be taken within 30 days of the National Conference approving the alteration.  That time has already elapsed.  It is possible to draw an inference that the respondent may have consciously endeavoured to frustrate the change which bears directly upon her position insofar as it changes her office from a paid or salaried position to that of an honorary position.  Those two matters together lead to the conclusion, it is said, that the respondent may not comply with the rules unless an order that she do so is made by the Court.

There is in my mind some doubt as to whether or not the respondent is under an obligation at this point to conduct a ballot of the Division Conference.  On the other hand, I accept that there is at least an arguable case that her obligation to call meetings of the Conference and implement decisions of the National Conference in the circumstances extends to taking those steps.  In any event, however, there appears to have been a request, although not totally unequivocal, to reconvene the four monthly meeting of the Federal Executive.

Under section 209(3), the Court may refuse to deal with an application for an order under the section unless it is satisfied that the applicant has taken all reasonable steps to have the matter resolved within the organisation. However, having regard to the fact that the time for approval of the proposed amendment has already expired, there appears to me to be some justification for the making of the rule to show cause. Accordingly, I propose to make an order pursuant to Order 48 Rule 7 that the respondent appear before this Court on Thursday, 12 March at 10.15 am. The matter, as I understand it, will be returnable before Wilcox J.

I note that the respondent is understood to be in Sydney at present and that it ought to be possible to serve her in accordance with the rules by service at least five clear days before return day.  However, I have indicated to counsel for the applicant that if there is any difficulty in effecting service further application for abridgment of time for service or alternatively for substituted service can be made to me as Duty Judge.

I make an order in accordance with the draft rule to show cause which I have initialled and dated.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             2 March 1998

Counsel for the Applicant:	W.R. Haylen QC
Solicitor for the Applicant:	Taylor & Scott
Date of Hearing:	2 March 1998
Date of Judgment:	2 March 1998