Glen Ashley Thomson v The Automotive Food Metals Engineering Printing and Kindred Industries Union
[1995] IRCA 633
•01 December 1995
CATCHWORDS
INDUSTRIAL LAW - REGISTERED ORGANISATION - Construction of union rules - Whether rules impose obligations or restrictions which are oppressive, unreasonable or unjust - Requirement for the holding of a special general meeting as a pre-condition to the conduct of a plebiscite - Participation of union membership in meetings - Use of modern technology to allow union meetings to be held contemporaneously in various locations
Industrial Relations Act 1988 ss 3, 187A, 196, 208
Conciliation and Arbitration Act 1904 s140
Doyle v Australian Workers’ Union (1986) 12 FCR 197, 205-206
Higgins v Nicoland Others (1971) 18 FLR 343, 357
Lawley & Ors v Transport Workers’ Union of Australia (1987) 22 IR 114, 128
Loh v O’Grady and Ors (1992) 42 IR 215, 219
Municipal Officers’ Association of Australia v Lancaster and Another (1981) 54 FLR 129, 164-166
Quickenden v Federated Australian University Staff Association & Ors (1990) 33 IR 54, 57
Re Keily; Re Transport Workers Union of Australia and Anor (1992) 42 IR 4, 6-7
Wright and Another v McLeod and Others (1983) 74 FLR 146, 164
No. VI 2884 of 1995
GLEN ASHLEY THOMSON v THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
CORAM: Marshall J
PLACE: Melbourne
DATE: 1 December 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VI 2884 of 1995
BETWEEN: GLEN ASHLEY THOMSON
Applicant
AND: THE AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING ANDKINDRED INDUSTRIES UNION
Respondent
CORAM: Marshall J
PLACE: Melbourne
DATE: 1 December 1995
ORDER
THE COURT ORDERS THAT:
1.The rule to show cause granted by Keely J on 12 May 1995 is discharged.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VI 2884 of 1995
BETWEEN: GLEN ASHLEY THOMSON
Applicant
AND: THE AUTOMOTIVE, FOOD, METALS
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
Respondent
CORAM: Marshall J
PLACE: Melbourne
DATE: 1 December 1995
REASONS FOR JUDGMENT
BACKGROUND
The matter before the Court is an application under s208 Industrial Relations Act 1988 (“the Act”) for orders pursuant to s208(2) of the Act. Section 208 provides that:
“208.(1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.
(2) An order under this section may declare that the whole or a part of a rule of an organisation contravenes section 196 or that the rules of an organisation contravene section 196 in a particular respect.
(3) An organisation in relation to which an application is made under this section shall be given an opportunity of being heard by the Court.
(4) The Court may, without limiting any other power of the Court to adjourn proceedings, adjourn proceedings in relation to an application under this section for such period and on such terms and conditions as it considers appropriate for the purpose of giving the organisation an opportunity to alter its rules.
(5) Where an order under this section declares that the whole or a part of a rule contravenes section 196, the rule or that part of the rule, as the case may be, shall be taken to be void from the date of the order.
(6) Where:
(a)the Court makes an order declaring as mentioned in subsection (2) in relation to the rules of an organisation; and
(b)at the expiration of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the appropriate authority, brings them into conformity with section 196 in relation to the matters that gave rise to the order;
the appropriate authority shall, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority’s opinion, bring them into conformity with that section in relation to those matters.
(7) The appropriate authority may, on the application of the organisation made within the period of 3 months referred to in subsection (6) or within any extension of the period, extend, or further extend, the period.
(8) Alterations determined under subsection (6) take effect on the date of the instrument.
(9) At any time after a proceeding under this section has been instituted, the Court may make such interim orders as it considers appropriate in relation to a matter in relation to which the matters raised in the proceeding are relevant.
(10) An order under subsection (9) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.
(11) In this section:
“appropriate authority” means:
(a)in relation to the eligibility rules of an organisation - a designated Presidential Member; or
(b)in relation to the other rules of an organisation - the Industrial Registrar.
(12) In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation.”
Section 196 of the Act provides as follows:
“196 The rules of an organisation:
(a)shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law;
(b)shall not be such as to prevent or hinder members of the organisation from:
(i)observing the law or the provisions of an award or an order of the Commission; or
(ii)entering into written agreements under an award or an order of the Commission; and
(c)shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust.”
Section 3 of the Act provides that:
“3. The principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by:
(a)encouraging and facilitating the making of agreements, between the parties involved in industrial relations, to determine matters pertaining to the relationship between employers and employees, particularly at the workplace or enterprise level; and
(b)providing the means for:
(i)establishing and maintaining an effective framework for protecting wages and conditions of employment through awards; and
(ii)ensuring that labour standards meet Australia’s international obligations; and
(c)providing a framework of rights and responsibilities for the parties involved in industrial relations which encourages fair and effective bargaining and ensures that those parties abide by agreements between them; and
(d)enabling the Commission to prevent and settle industrial disputes;
(i)so far as possible, by conciliation; and
(ii)where necessary, by arbitration; and
(e)encouraging the organisation of representative bodies of employers and employees and their registration under this Act; and
(f)encouraging and facilitating the development of organisations, particularly by reducing the number of organisations in an industry or enterprise; and
(g)helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
Section 187A of the Act provides that:
“187A. As well as the objects set out in section 3, this Part has these objects:
(a)to encourage the democratic control of organisations;
(b)to encourage members of organisations to participate in the organisations’ affairs;
(c)to encourage the efficient management of organisations;
(d)to encourage and help organisations to develop in a way that promotes the economic prosperity and welfare of the people of Australia;
(e)to encourage and facilitate the amalgamation of organisations.”
The respondent is an organisation of employees registered pursuant to the Act. The respondent, for its internal purposes, is constituted, in part, by various divisions, including a “Food and Confectionery Division” (“the Division”). The applicant is a member of the respondent who is attached to the Division. The Division was formed in February 1994 as a consequence of the amalgamation between the respondent (then known as the Metals and Engineering Workers’ Union) and an organisation called the Confectionery Workers’ and Food Preservers’ Union of Australia (“CWFPU”).
On 12 May 1995, Keely J granted a rule calling upon the respondent to show cause why the following orders should not be made:
“1.That the Rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) contravene Section 196(a) of the Industrial Relations Act 1988 (“the Act”) by failing to provide for the control of committees of the union by the members of the union.
2.Rule 47.9AA of the Rules of the Union contravenes Section 196(c) of the Industrial Relations Act 1988 (“the Act”) in that it imposes on members of the Union conditions, obligations or restrictions that, having regard to the objects of the Act and in particular those in Section 3(e) and Section 187A(a) and (b), are oppressive, unreasonable and unjust, in that it denies members any effective or reasonable access to a plebiscite or referendum.”
Rule 47 of the rules of the respondent was inserted at the time of the amalgamation of the respondent with CWFPU. In that amalgamation the respondent was “the host organisation” or “proposed amalgamated organisation” (see s238 of the Act).
Rule 47 (as far as is material) provides as follows:
(a) There shall be a Food and Confectionery Division of the Union which
shall consist of and to which shall be attached members of the Union in New South Wales, Victoria, Tasmania and South Australia who:-
(i) were on the day immediately preceding the relevant date members of the CW&FPU;
(ii) are eligible for membership of the Union and who are admitted to membership of the Union pursuant to the provisions of sub- rule 1G of the Rules of the Union;
(iii)are officers of the Union and who:-
A. were, on the day immediately preceding the relevant date, members of the CW&FPU; or
B.were, at the date of becoming officers of the Union, members of the Food and Confectionery Division of the Union; or
(iv) were members, other than members attached to the Technical and Supervisory Division or Vehicle Division who were:-
A. eligible for membership of the Union pursuant to rules 1A or 1B; and
B.employed in the food and confectionery industry, and
who were transferred to the Food and Confectionery Division in accordance with paragraph 47.4(b).
....
(a) For the purposes of these Rules, the membership of the Food and Confectionery Division shall be divided into the following regions:-
(i) the Victorian region covering Victoria, the headquarters of which shall be located in Melbourne;
(ii)the New South Wales region covering New South Wales and the Australian Capital Territory, the headquarters of which shall be located in Sydney;
(iii) the Tasmanian region covering Tasmania, the headquarters of which shall be located in Hobart; and
(iv)the South Australian region covering South Australia, the headquarters of which shall be located in Adelaide;
(b)Members of the Food and Confectionery Division shall be members of the region in which they work.
(a) There shall be a Food and Confectionery Division Conference which shall consist of:-
(i)The Regional President and one delegate from the Victorian Region other than the Regional Secretary - Food and Confectionery Division;
(ii)one delegate from the New South Wales Region other than the Regional Secretary - Food and Confectionery Division;
(iii)one delegate from the South Australian Region other than the Regional Secretary Food and Confectionery Division;
(iv)one delegate from the Tasmanian Region other than the Regional Secretary - Food and Confectionery Division;
(v)the Regional Secretary - Food and Confectionery Division of each region;
(vi)the Federal Secretary - Food and Confectionery Division; and
(aa)Provided that where the Federal Secretary - Food and Confectionery Division also holds the office of Regional Secretary the relevant Regional Council shall elect one of its number as a substitute for the Regional Secretary.
....
The Food and Confectionery Division Conference shall, subject to these Rules and decisions of the National Conference, National Council and National Administrative Committee have the management and control of the affairs of the Food and Confectionery Division.
(a) Meetings of the Food and Confectionery Division Conference shall be convened and conducted in accordance with this sub-rule.
(b)The Food and Confectionery Division Conference shall meet biennially on a date and at a place determined by the Conference or, in the absence of such a determination, by the Federal Executive.
(c)The Federal Secretary - Food and Confectionery Division shall give each Regional Secretary - Food and Confectionery Division and each member of the Food and Confectionery Division Conference not less than 3 months notice of the date of the meeting convened in accordance with the previous paragraph.
(d)A Region may notify the Federal Secretary - Food and Confectionery Division not later than 2 months before the date of the Food and Confectionery Division Conference of any business which the Region desires to have placed on the agenda of the Food and Confectionery Division Conference.
(e)Where a Region has sent to the Federal Secretary - Food and Confectionery Division notice of any business in accordance with the previous paragraph the Federal Secretary - Food and Confectionery Division shall include that business in the agenda.
(f)The Federal Secretary - Food and Confectionery Division shall forward to each Regional Secretary - Food and Confectionery Division the agenda for the Food and Confectionery Division Conference not later than one month before the date of the Food and Confectionery Division Conference.
(g)The Food and Confectionery Division Conference may determine that business which is not on the agenda may be dealt with by the meeting of the Food and Confectionery Division Conference.
(h)On receipt of a request in writing from 2 or more Regions or following a resolution of the Federal Executive, the Federal President - Food and Confectionery Division shall instruct the Federal Secretary - Food and Confectionery Division to call a special meeting of the Federal Conference to be held within 6 weeks of the receipt of the request or the resolution.
(i)Each member of the Food and Confectionery Division Conference shall receive a notice in writing at least 14 clear days before the date of the special meeting together with advice as to the business to be dealt with at the special meeting.
(j)A. The Federal Executive may, where it considers it desirable and expedient to do so, refer a matter to the Conference in accordance with this paragraph without convening a meeting.
B.The Federal Executive may where the matter is urgent, direct that Conference deal with the matter by a postal ballot or a telephone hook up and dispense with or shorten the period of notice required by paragraph 47.8(i).
C.Where a matter is to be dealt with by a postal ballot, the Federal Secretary - Food and Confectionery Division shall provide each member of Conference with a notice in writing setting out the matter to be dealt with and a ballot paper on which the member can record his or her vote.
D.Each member of the Conference shall record his or her vote on the ballot paper provided, sign the ballot paper and return it to the Federal Secretary - Food and Confectionery Division on or before the date fixed for the conduct of the vote.
E.Where a matter is to be dealt with by Conference by telephone hook up the question to be determined may be put to members of the Conference by individual telephone calls, telegrams, telex or any other mode of electronic communication provided that each member of Conference shall confirm his or her vote in writing.
F.A decision of a majority of Conference members made in accordance with this paragraph shall have the same effect as a decision made by a meeting.
G.The Federal Secretary may act upon a decision of the Conference made in accordance with sub-paragraph E above prior to receiving the confirmation of the Conference members vote in writing.
(a) There shall be a Food and Confectionery Division Federal Executive which shall consist of:-
(i)the Federal President - Food and Confectionery Division;
(ii)the Federal Vice-President - Food and Confectionery Division;
(iii)the Federal Secretary - Food and Confectionery Division;
(iv) three Executive Members elected by and from the Food and Confectionery Division Conference.
(b)The persons referred to in the previous paragraph shall be known as the Food and Confectionery Division Federal Officers.
(c)Where one or more of the President, Vice-President or Executive Members is/are unable to attend any meeting of the Food and Confectionery Division Federal Executive, the Regional Council of his/her Region may nominate another member of the Food and Confectionery Division Conference from that Region to attend.
(d)The Food and Confectionery Division Federal Executive shall meet at least once every 4 months at such times and places as the Federal President - Food and Confectionery Division and Federal Secretary - Food and Confectionery Division may determine.
(e)The Federal Executive shall, when the Food and Confectionery Division Conference is not in session, subject to decisions of the National Conference and National Council, have and may exercise all the powers of the Food and Confectionery Division Conference.
(f)The Federal Secretary - Food and Confectionery Division shall at the request of the Federal President or on the receipt of a request from 2 or more regions call a special meeting of the Federal Executive to be held within 14 days of receipt of the request.
(g)Each member of the Federal Executive shall receive at least 3 clear days notice in writing of the meeting and of the business to be dealt with at the meeting.
(h)A. The Federal President - Food and Confectionery Division and the Federal Secretary - Food and Confectionery Division may, where they consider it desirable and expedient to do so, refer a matter to the Federal Executive in accordance with this paragraph without convening a meeting.
B.The Federal President - Food and Confectionery Division and the Federal Secretary - Food and Confectionery Division may, where the matter is urgent, direct that the Federal Executive deal with the matter by a postal ballot or a telephone hook up and dispense with or shorten the period of time required by paragraph 47.9(g).
C.Where a matter is to be dealt with by a postal ballot, the Federal Secretary - Food and Confectionery Division shall provide each member of the Federal Executive with a notice in writing setting out the matter to be dealt with and a ballot paper on which the member can record his or her vote.
D.Each member of the Federal Executive shall record his or her vote on the ballot paper provided, sign the ballot paper and return to the Federal Secretary - Food and Confectionery Division on or before the date fixed for the conduct of the vote.
E.Where a matter is to be dealt with by the Federal Executive by telephone hook up the question to be determined may be put to members of the Federal Executive by individual telephone calls, telegrams, telex or any other mode or electronic communication provided that each member of the Federal Executive shall confirm his or her vote in writing.
F.A decision of a majority of Federal Executive members made in accordance with this paragraph shall have the same effect as a decision made by a meeting.
G. The Federal Secretary may act upon a decision of the Federal Executive made by telephone hook up in accordance with this paragraph prior to receiving the confirmation of the Federal Executive members vote in writing.
9AA. (a) Any two or more Regions may at special meetings convened for the purpose demand a ballot in accordance with this Sub-Rule of all members of the Food and Confectionery Division of the Union on any question.
(b)On a ballot being demanded in writing by the Regional Secretaries of the Regions concerned, the Federal Secretary - Food and Confectionery Division shall, within four weeks, forward to each Region a ballot paper for each person who shall have been a financial member of such Region at the end of the quarter immediately prior to the ballot.
(c)The Regional Secretary shall within four weeks distribute and collect the ballot papers and certify the number of members of his/her Region voting, the number of members voting affirmatively and the number of members voting in the negative.
(d)Each Regional Secretary shall forthwith forward to the Federal Secretary - Food and Confectionery Division the certificate referred to in paragraph (c) of this Sub-Rule, and the Federal Secretary - Food and Confectionery Division shall thereupon advise each Regional Secretary of the result of the ballot which shall be binding on all members of the Union in the Food and Confectionery Division, the Food and Confectionery Division Executive Committee and Food and Confectionery Division Conference.
...
(a) In each region, there shall be constituted a Regional Council which shall consist of:-
(i)The Regional President - Food and Confectionery Division;
(ii)In the regions other than South Australia two Regional Vice-Presidents - Food and Confectionery Division;
(iii)In the South Australian region one Regional Vice President;
(iv)The Regional Secretary - Food and Confectionery Division;
(v)Regional Assistant Secretary - Food and Confectionery Division, if any;
(vi)Such number of State Organisers - Food and Confectionery Division as may be determined by State Council in accordance with Rule 23; and
(vii)In the regions other than South Australia 16 Committee members
Provided that the number of committee members shall be reduced to no less than 7 committee members or such other greater number of committee members as may be determined from time to time by the Regional Council with the approval of the National Council once the terms of office of the First Committee Members expires; and
Should the office of a First Committee Members become vacant because they have resigned their office(s) or have ceased to become eligible to hold that office as committee members the Regional Council may elect not to fill that office.
(viii)In the South Australian Region three committee members.
(b)The Regional Council shall conduct and manage the business of the - Food and Confectionery Division within the Region.
(c)The Regional Council shall meet at least once each year and at such other times as may be necessary or required.
(d)Decisions of the Regional Council shall where practicable, be referred to a general meeting of members in the Region for consideration.
(e)A quorum for a meeting of the Regional Council shall be one half plus one of the members of the body concerned.
(f)(i) A meeting of the Regional Council may be convened by -
A.the Regional Executive Committee;
B.a meeting of the Regional Council; or
C.the Regional Secretary to conduct urgent business.
(ii)A meeting of the Regional Council must be convened by the Regional Secretary on receipt of a request from five members of the Regional Council.
...
(a) General Meetings of members of the Region in the Food and Confectionery Division shall be held in accordance with this sub-rule.
(b)A General Meeting of members may be convened by a General Meeting, the Regional Council or in accordance with paragraph (c).
(c)On receipt of a request from 3 members of the Regional Council or from 10% of the financial members of the Region, the Regional Secretary shall call a special general meeting as soon as practicable to deal with the matter which is the subject of the request for the special general meeting.
(d)A quorum for a general meeting shall be 10 members.
(e)A decision of a general meeting shall be binding on the Regional Council and the Regional Executive.
By-laws
The Regional council may make, amend or repeal by-laws providing for the conduct of any meeting within the Region.”
SECTION 196(a) OF THE ACT
During the trial of the proceeding (in fact during the applicant’s submissions in reply) the applicant’s counsel, Mr Borenstein, did not press for an order of the kind referred to in paragraph 1 of the rule to show cause. In other words he conceded that his submission that the rules of the respondent contravened s196(a) of the Act by failing to provide for the control of committees of the Division by members of the respondent attached to the Division could not succeed. Because of this concession, it is not necessary for the Court to determine the question of whether the rules of the respondent contravene s196(a). However, for the sake of completeness, I should indicate that had I been required to determine the issue, I would have found against the applicant’s submission. As Gray J said in Loh v O’Grady and Ors (1992) 42 IR 215, 219:-
“It is well established that the question whether the requirement that the rules contain provisions as to the control of committees is satisfied is a question which can only be decided by looking at the rules as a whole, to see whether they provide adequately for the subject matter of the statutory provision. Rules such as those dealing with referenda are certainly part of such an examination of the rules. So also are rules dealing with elections and perhaps provisions of other types. It must be emphasised that the question is not whether some particular rule contravenes a provision of the Act, but whether the rules, viewed as a whole, make provision or fail to make provision in accordance with the requirements of the Act. Such a determination can only be arrived at on a review of the rules as a whole. The individual provisions of the rules may continue to be perfectly valid, even if the rules as a whole do fail to make the necessary provision.”
In my view the rules as a whole do not fail to provide for the control of the relevant committees by the members of the Division. The only basis for the contrary contention prior to the concession was the alleged inadequacy in sub-rule 47.9AA. I do not consider that contention to be soundly based for the reasons identified below.
SECTION 196(c) OF THE ACT
The ultimate submission of the applicant was that sub-rule 47.9AA (when read in combination with sub-rule 47.21) of the rules of the respondent contravenes s196(c) of the Act in that the conditions, obligations or restrictions which it imposes upon members in relation to the securing of a plebiscite or referendum are oppressive, unreasonable or unjust having regard to the objects of the Act and in particular ss 3(e) and 187A(a) and (b) thereof.
Sub-rule 47.9AA(a) requires, as a pre-condition for a plebiscite of members of the Division, a request for the same by two or more Regions. That request is required to be made by special meetings in such Regions. Mr Borenstein contended that the pre-condition to the conduct of a plebiscite, the holding of special general meetings in two or more Regions, is an unreasonable restriction on the ability of the members of the respondent attached to the Division to secure a plebiscite.
The evidence before the Court led by the applicant reveals that shiftwork is common in the food and confectionery industry and that a significant proportion of members of the respondent attached to the Division would find it exceedingly difficult to attend a special general meeting or any meeting of members of the respondent. The evidence also shows that large numbers of members attached to all Regions, other than the South Australian region, work at considerable distances from the regional office of the Division. It would therefore be very difficult for a substantial number of members to attend a meeting at a location at or near to a metropolitan regional office.
The evidence of the respondent was that its policy and practice was to encourage the widest possible participation of its membership at meetings. Such meetings are not confined to one central location in a metropolitan area. The respondent arranges meetings with a view to maximising attendances at them. The evidence also showed that since the creation of the Division in February 1994, no special general meeting has been requested pursuant to sub-rule 47.9AA.
Sub-rule 47.21 deals with how a special general meeting comes to be called. Three members of Regional Council may request such a meeting. Alternatively, 10 per cent of the financial members attached to the Region may request such a meeting. On the happening of either event the Regional Secretary is bound to convene such a meeting.
The applicant makes no complaint about the numbers of financial members required to petition the holding of a meeting. His objection is that it is oppressive to the members in the Division to require the holding of a special general meeting as a step towards the holding of a plebiscite. His basis for objection is founded in the evidence concerning the difficulty in organising meetings of members. The applicant contends that the requirement for a special general meeting as a pre-condition to a plebiscite makes the respondent less representative of its membership (see s3(e) of the Act), fails to encourage democratic control of the respondent (see s187A(a) of the Act) and fails to encourage members of the respondent to participate in its affairs (see s187A(b) of the Act).
The applicant concedes that the respondent is entitled to take the view that a plebiscite should not be too readily available given obvious costs considerations. See Lawley & Ors v Transport Workers’ Union of Australia (1987) 22 IR 114, 128 and Wright and Another v McLeod and Others (1983) 74 FLR 146, 164 (per Smithers J). However he contends that a rule requiring a special general meeting as a pre-condition to a plebiscite means that access to a plebiscite is too difficult. He also contends that the number of members able to influence the decision as to whether or not a plebiscite is requested is significantly lessened having regard to restrictions upon the ability of large numbers of members to attend any general meeting, (special or otherwise), at any particular place or time.
Subject to constraints provided by the Act, the respondent is entitled to select for itself the rules which it considers appropriate. See Municipal Officers’ Association of Australia v Lancaster and Another (“Lancaster”) (1981) 54 FLR 129, 164-166 (per Deane J). As a Full Court of the Federal Court of Australia said in Doyle v Australian Workers’ Union (1986) 12 FCR 197, 205-206 in the context of s140 Conciliation and Arbitration Act 1904, the predecessor provision to s196 of the Act:-
“The primary justification for the existence of a rule of an organisation is simply that the organisation has adopted that rule. It is then necessary to apply s 140(1)(c) to the particular provision, measuring its effect. The Act assumes that the rules of an organisation may impose conditions, obligations or restrictions which are not oppressive, unreasonable or unjust. The mere imposition by the rules of conditions, obligations or restrictions is not evidence that those conditions, obligations or restrictions, are oppressive, unreasonable or unjust. Their effect must be examined, in the particular circumstances of the organisation, and by reference to both the objects of the Act, and the purposes of the registration of organisations under the Act. Again, the proper approach for the Court to take in ‘having regard’ to those objects and purposes has been the subject of comment by previous Full Courts. It is enough to refer to Lancaster (supra) at 151-153 per Evatt and Northrop JJ. In undertaking this process, it may be that the Court will look for some rational explanation for the presence of a particular rule, or some such explanation may be advanced in justification of a rule. It may be that Wilcox J in Rule was doing no more than considering the possible existence of such justifications. This is not to say that, in every case, the Court will require an organisation to justify the contents of its challenged rules by reference to particular aspects of its government or other circumstances. It is not for the organisation to establish a ‘defensible nexus’ between its rule and its good government. Rather, it is for the member who challenges the validity of a rule to demonstrate its invalidity, taking into account the matters which the section requires the Court to have regard to.”
In Lancaster at 165 Deane J said:-
“There is nothing in the context of s. 140 (1) (c) which would justify giving an expansive construction of the requirement that the conditions, obligations or restrictions imposed by the rules of an organization upon applicants for membership or members not be ‘oppressive, unreasonable or unjust’. Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful (see, for example, Scottish Co-operative Wholesale Society v. Meyer ([1959] A.C. 324, at p. 342); Re Jermyn Street Turkish Baths Ltd. ([1971] 1 W.L.R. 1042); Allen v. Townsend ((1977) 31 F.L.R. 431)). To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play (see, for example, Re Kempthorne Prosser & Co.’s New Zealand Drug Co. Ltd. ([1964] N.Z.L.R. 49)).”
In the instant circumstances the Court must determine whether the requirement that a special general meeting precede the holding of a plebiscite is a restriction on access to a plebiscite which is oppressive, unreasonable or unjust having regard to the importance of encouraging membership involvement and influence in the respondent.
In my view sub-rule 47.9AA, either alone or when read in combination with sub-rule 47.21, does not impose such a restriction and consequently does not fall foul of s196(c) of the Act. It must not be assumed that any special general meeting will necessarily be held in a location remote from large sections of the membership. Modern technology would enable the holding of a meeting by video link. Although Joske J in Higgins v Nicol and Others (1971) 18 FLR 343, 357 held that a telephone hook up did not constitute a meeting, he also said that:-
“It may be that technical television improvements of the future would have some bearing on this.”
See also Quickenden v Federated Australian University Staff Association & Ors (1990) 33 IR 54, 57 where Lee J held that a telephone hook up would constitute a meeting. I do not believe that sub-rule 47.9AA prohibits a special general meeting by video link or telephone hook up.
It is inappropriate to construe the words “special meeting” in sub-rule 47.9AA as requiring a meeting at one location consisting of people there present and assembled. There is no warrant in modern times for such a restrictive construction of the relevant rule. This is especially so given that rules of organisations must be generously construed. See Re Keily; Re Transport Workers Union of Australia and Anor (1992) 42 IR 4, 6-7.
The fact that sub-rule 47.8 makes provision for the holding of certain meetings of Division Conference other than in a face to face context, i.e. by telephone hook up, does not mean that a special general meeting may not be conducted by video link or some like means. It would be open for such a meeting to be conducted in the Victorian Region of the Division, for example, by a video link between members assembled at the Regional Office in North Melbourne and concurrently at locations in Mildura, Shepparton, Echuca and perhaps other centres. Relevant by-laws for the conduct of any such meeting may be made pursuant to sub-rule 47.22. I do not mean to suggest that the above method is the only way to best conduct a special general meeting. The uncontroverted evidence of the respondent is that it convenes meetings to maximise membership participation. Even if a meeting was held in one location in the traditional way, the respondent would be able to take appropriate measures to arrange transport and/or child care facilities for those members wishing to attend. It is an inappropriate basis to challenge a rule under s196(c) to assume a worst case scenario where no or minimal effort will necessarily be made to secure the best attendance possible of members who work in various locations.
The working of shift work is becoming increasingly common in Australia. Meetings of union members should not be considered to be onerous in circumstances where the union is in the process of consideration of important issues simply because not all members can attend at any given time. If sufficient notice of a union meeting and the issue or issues to be examined thereat are given to members, a member who has difficulty attending may be able to lobby or influence fellow members who may attend the meeting with a view to achieving a particular result. Indeed, it is arguable that the invocation of a plebiscite without recourse to the general membership as to whether such an expensive step should be taken, without the opportunity for debate, may itself be contrary to the notion that membership participation in an organisation should be encouraged.
It is not necessary to determine whether a special general meeting may be commenced in one location and adjourned to others. It is best left to the respondent to devise the most appropriate means to give effect to its laudable policy of securing the best attendances possible at meetings. This can be achieved by the Regional Council making suitable by-laws under sub-rule 47.22 as to how a meeting may be conducted, or by the respondent taking practical steps to ensure that as many members as possible are able to attend any special general meeting. As no request for such a meeting has been made in almost two years since the inception of the Division, the applicant cannot point to any history of difficulty occasioned by the rule which is the subject of his complaint.
I reject the submission of the applicant that sub-rule 47.9AA offends the provisions of s196(c) for the reasons set out above. Consequently, the rule to show cause will be discharged.
ORDER
The order I make is that the rule to show cause, granted by Keely J on 12 May 1995, is discharged.
I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 1 December 1995
Counsel for the Applicant: H Borenstein
Solicitor for the Applicant: Slater and Gordon
Counsel for the Respondent: W Haylen QC, J. Wallace
Solicitor for the Respondent: Taylor and Scott
Date of hearing: 22 November 1995
Date of judgment: 1 December 1995
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