Hansch v Transport Workers' Union of Australia
[1998] FCA 1036
•6 AUGUST 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – rule to show cause – whether office of applicant still in existence once Branch disbanded.
Municipal Officers’ Association of Australia v Lancaster and Anor (1981) 54 FLR 129, referred to.
Imlach and Anor v Daley and Ors (1985) 7 FCR 457, referred to.
BARRY HANSCH v TRANSPORT WORKERS’ UNION OF AUSTRALIA & ORS
TG 15 of 1998
MARSHALL J
HOBART
6 AUGUST 1998
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TG 15 of 1998
BETWEEN:
BARRY HANSCH
APPLICANTAND:
TRANSPORT WORKERS' UNION OF AUSTRALIA
FIRST RESPONDENTSTEPHEN PATRICK HUTCHINS
SECOND RESPONDENTWILLIAM GEORGE NOONAN
THIRD RESPONDENTROBERT JOHN ALLAN
FOURTH RESPONDENTRICHARD DONALD MARLES
FIFTH RESPONDENTTREVOR PAUL SANTI
SIXTH RESPONDENTHUGH JOHN WILLIAMS
SEVENTH RESPONDENTALEXANDER McEACHIAN GALLACHER
EIGHTH RESPONDENTJAMES MCGIVERON
NINTH RESPONDENTKENNETH JOHN BACON
TENTH RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
6 AUGUST 1998
WHERE MADE:
HOBART
THE COURT ORDERS THAT:
The respondents, other than the first respondent, perform and observe the rules of the first respondent by causing the first respondent to pay to the applicant the sum of $71,952.24 and to pay to the Transport Workers’ Union of Australia Superannuation Fund, on behalf of the applicant, the sum of $16,295.46.
The payments referred to in the above order be made by three roughly equal instalments, each instalment payable to the applicant’s solicitor on or before 1 October 1998, 1 November 1998 and 1 December 1998.
The rule to show cause otherwise be discharged.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TG15 of 1998
BETWEEN:
BARRY HANSCH
APPLICANTAND:
TRANSPORT WORKERS' UNION OF AUSTRALIA
FIRST RESPONDENTSTEPHEN PATRICK HUTCHINS
SECOND RESPONDENTWILLIAM GEORGE NOONAN
THIRD RESPONDENTROBERT JOHN ALLAN
FOURTH RESPONDENTRICHARD DONALD MARLES
FIFTH RESPONDENTTREVOR PAUL SANTI
SIXTH RESPONDENTHUGH JOHN WILLIAMS
SEVENTH RESPONDENTALEXANDER MCEACHIAN GALLACHER
EIGHTH RESPONDENTJAMES MCGIVERON
NINTH RESPONDENTKENNETH JOHN BACON
TENTH RESPONDENT
JUDGE:
MARSHALL J
DATE:
6 AUGUST 1998
PLACE:
HOBART
REASONS FOR JUDGMENT
On 10 July 1998 the Court granted the applicant a rule to show cause which called upon the respondents to show cause why certain orders should not be made binding each of them other than the first respondent.
The first respondent was made a respondent to the rule to show cause upon an indication given by counsel for the applicant, at the time of the seeking of the rule, that the applicant may wish to invoke the accrued jurisdiction of the Court to have it make orders against the first respondent.
On that basis, although no order was sought against the first respondent in the rule to show cause, it was nonetheless made a respondent to the proceeding. The rule to show cause was in the following terms:
“That the respondents, other then (sic) the first respondent, perform and observe the rules of the first respondent by causing the first respondent to:-
a) pay to the applicant the sum of $22,436.72;
b)pay to the TWU Super Fund on behalf of the applicant the sum of $4,765.86;
c) pay to the applicant the sum of $71,952.24;
d)pay to the TWU Super Fund on behalf of the applicant the sum of $16,295.46;
e)permit and ensure that the applicant has access to and the use of the telephones of the Tasmanian Branch of the Transport Workers’ Union for the purposes of carrying out this (sic) duties and exercising his powers as Branch Organiser (Hobart);
f)permit and ensure that the applicant has access to the records of the Tasmanian Branch of the Transport Workers’ Union for the purposes of carrying out his duties and exercising his powers as Branch Organiser (Hobart);
g)permit and ensure that the applicant has access to the use of the office equipment and stationery of the Tasmanian Branch of the Transport Workers’ Union for the purpose of carrying out his duties and exercising his powers as Branch Organiser (Hobart);
(h)permit and ensure the applicant has the use of a motor vehicle for the purposes of carrying out his duties and exercising his powers as Branch Organiser (Hobart).”
At the first directions hearing on 27 July 1998 the applicant sought interlocutory relief in the proceeding. After making submissions the parties finally, by consent, agreed that the Court should make orders which included orders that the respondents, other than the first respondent, pay the applicant the sum of $22,436.72 and pay to the Transport Workers’ Union Superannuation Fund (“TWU Super Fund”), on behalf of the applicant, the sum of $4,765.86 by 31 July 1998. Such payments were made by that date.
The payment of those amounts appears to relate to a period of time when the applicant was an organiser of the Tasmanian Branch of the Transport Workers’ Union of Australia (“TWU”) and had not been paid his wages. It is not necessary for the Court to traverse the circumstances of that non-payment given the agreement made by the parties for that money to be paid to the applicant and to the TWU Superannuation Fund.
The sums of money referred to in paragraphs (c) and (d) of the rule to show cause relate to a period from 23 August 1996 to 29 May 1998. On 21 August 1996 a meeting of members of the Tasmanian Branch of the first respondent occurred and the applicant was purportedly removed from his position as a Branch Organiser. The applicant took action in the Industrial Relations Court of Australia to challenge that decision and was successful before Ryan J.
In late May 1998 Ryan J delivered his reasons for judgment and upheld the applicant's complaint regarding the conduct of that meeting and indeed concerning the inadequacy of the notice convening the meeting. It is unnecessary to further traverse that issue, save to say that that matter is subject to an appeal in the Industrial Relations Court of Australia to be heard tomorrow. It is however, critical that no stay has been sought in respect of any question of payment of any monetary entitlements owing to the applicant.
Counsel for the applicant, Mr Green, submitted that the money referred to in paragraphs (c) and (d) of the rule to show cause is owing and that the applicant should no longer be denied his entitlements. On the other hand counsel for the respondents, Mr Read, referred to the fact that the judgment of Ryan J occurred some 13 months after his Honour reserved his reasons for judgment. He also relied on evidence from the fourth respondent Mr Allan, the Federal Secretary of the first respondent. Mr Allan gave evidence that the Federal organisation has an accounting situation where its finances are very finely balanced, it has zero reserves at present and relies on sustentation fees from the branches to continue to be financially viable.
In reply Mr Green referred to the fact that the first respondent as a Federal organisation has the ability to borrow funds to enable it to meet its commitments to the applicant. The Court, it was conceded by both counsel, has a discretion to order the payment of the amounts referred to in paragraphs (c) and (d) by instalments. Given the delay involved in the judgment of the Industrial Relations Court of Australia that led to the quashing of any effect of the meeting of the Branch in August 1996 and also the finely balanced financial position of the Federal organisation, I am of the view that it would be excessively onerous to require immediate payment of the amounts and I determine that payment by instalments is appropriate in the special circumstances of this case.
The worst case scenario, put by Mr Read, was that the payments be directed to be made on the last day of October, November and December 1998 respectively and that that would be an appropriate order. On balance I am of the view that that payment criteria is just a little too late and a more appropriate time frame is 1 October, 1 November and 1 December 1998. Indeed, this period of time was proffered by Mr Read at an earlier stage in the proceedings. Although proffered on a without prejudice basis it would not have been proffered unless it was a time frame that the organisation could comply with.
Considering the long period of time in which he has been waiting for payment this course may seem onerous to the applicant, but it should be borne in mind that the Court has dealt with this matter expeditiously. As a consequence the applicant is happily in a position where one scenario which was possible, given my substantive commitments, did not arise; that is that my judgment would still be reserved in this matter by 1 October 1998. The applicant therefore ought not consider himself too harshly done by in the totality of the relevant factual matrix in the outcome of this matter.
The Court orders that the respondents, other than the first respondent, perform and observe the rules of the first respondent by causing the first respondent to pay to the applicant the sum of $71,952.24 and to pay to the TWU Superannuation Fund, on behalf of the applicant, the sum of $16,295.46. It is further ordered that these payments be made by three roughly equal instalments, each instalment payable to the applicant's solicitor on or before 1 October 1998, 1 November 1998 and 1 December 1998.
The issues that flow from paragraphs (e) to (h) of the rule to show cause remain to be considered. A critical question in determining whether any of the relief sought in paragraphs (e) to (h) of the rule to show cause should be made absolute is whether or not there is truly in existence at the moment a Tasmanian Branch of the first respondent.
The evidence before the Court illustrates that on 4 July 1998 the Tasmanian Branch Committee of Management passed a resolution which acknowledged that the Branch had a cash flow problem and that consequently it had effectively ceased to function. The resolution directed the Branch Secretary to make a number of retrenchments and to recommend to the Federal Council that it conduct a review of the operation of the Branch in accordance with the rules of the organisation.
A special meeting of Federal Council was held on 6 July 1998. That meeting resolved to disband the Tasmanian Branch and to have Tasmanian Branch members represented directly by Federal Council. Mr Allan, who is also a member of Federal Council gave uncontested evidence that Federal Council acted on a report from Mr Allan himself together with Mr Noonan, the Federal Vice-President and Victorian Branch Secretary and Mr Bacon, the Tasmanian Branch Secretary, as well as upon the resolution of the Tasmanian Branch Committee of Management and upon a report regarding the finances of that Branch.
In his submissions before me today Mr Green contended that that resolution of Federal Council of 6 July 1998 was made in bad faith and that it was therefore not made bona fide in accordance with the rules of the organisation, and accordingly was not a valid resolution. Mr Green accepted that the onus lay upon his client to illustrate, by way of evidence, that the relevant resolution was made mala fide. Mr Green referred to evidence of the applicant dealing with his treatment by the Tasmanian Branch of the organisation. It was submitted that it could be inferred that that conduct had in some way affected the decision of the Federal Council. I do not accept that submission. Indeed, I did not call upon Mr Read to respond to it.
There is evidence before the Court of a logical and cogent reason which accords with the efficient administration of the organisation for the branch to be disbanded. That is that it had insufficient funds to continue to function. It was open to the organisation pursuant to its rules to adopt the course it did. The fact that one of the members of the Federal Council, Mr Bacon, was also a member of the Branch Committee of Management, really does not assist in showing that whatever animus he may or may not have brought to the resolution on 6 July infected any other member of Federal Council, assuming such animus existed.
There is simply insufficient evidence before the Court to satisfy me that the applicant has made out his onus of proving that Federal Council was actuated by bad faith in making its resolution of 6 July 1998. Consequently it is my view that the resolution, on the material before me, is a valid resolution of Federal Council and one that binds members of the organisation. Mr Green submitted that one could not, by disbanding a branch, remove the officers of that branch. The Court was referred to various authorities dealing with the power of organisations to amend rules which may impact on the term of officers of organisations. There was no case directly on point and no case that grappled with the fundamental problem about how an office could possibly survive the extinguishment of a branch upon which it was inexorably dependent; that is how can an office exist in a branch of an organisation which no longer exists?
Mr Green was unable, in all frankness, to assist me on this issue and it appears that logically there is only one answer to this particular question. It appears to be a matter of logic and common sense to reason that if a branch no longer exists it cannot have officials, nor can it have members, nor can it have any particular status as a branch under the rules of an organisation. It must always be borne in mind that there is no requirement for organisations registered under the Act to have branches. Branches are simply organs of administrative convenience and are organs that have been set up by organisations to effectively deliver services to their members.
There is nothing to stop an organisation operating in a purely central way and having organisers in any area of the country directed solely from a Federal office or by the Federal Council and / or the Federal Committee of Management. It is not for the Court to dictate to organisations their structures and this is apparent from the oft quoted judgment of the Court in Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129. Additional relevant reference may be made to the judgment of a Full Court of the Court in Imlach v Daley and Ors (1985) 7 FCR 457.
Consequently I do not accept Mr Green’s submission that in some way the office of Branch Organiser of the Tasmanian Branch of the first respondent survives the disbandment of the Branch. Therefore there is no basis upon which the Court can make absolute those portions of the rule to show cause which are set out in paragraphs (e) to (h) inclusive, because each of them are dependent on the existence of a current office held by the applicant being the office of Branch Organiser.
The applicant holds no such office. The current situation is that he is employed pursuant to a duty statement dated 1 July 1998 by the Federal organisation and is directed through Federal Council to perform enumerated duties as an organiser. The applicant is in such employment. It was the evidence of Mr Allan, subject to further legal advice, that such employment would continue if the appeal from Ryan J’s judgment was dismissed and again, subject to further legal advice, such employment would in any case be terminated in the event that the appeal was upheld. Those matters are not particularly germane to this judgment but I mention them in the context of determining the current status of the applicant in the context of his position vis-a-vis members of the organisation who reside in Tasmania, particularly in the southern region.
Consequently the Court makes the following orders. The first order is that the respondents, other than the first respondent, perform and observe the rules of the first respondent by causing the first respondent to pay to the applicant the sum of $71,952.24 and to pay to the TWU Superannuation Fund, on behalf of the applicant, the sum of $16,295.46. It is further ordered that these payments be made by three roughly equal instalments, each instalment payable to the applicant’s solicitor on or before 1 October 1998, 1 November 1998 and 1 December 1998. The second order is that the rule to show cause otherwise be discharged.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 6 August 1998
Counsel for the Applicant: Mr J Green Solicitor for the Applicant: John Green Counsel for the Respondent: Mr K E Read Solicitor for the Respondent: Jennings Elliott Date of Hearing: 6 August 1998 Date of Judgment: 6 August 1998 (ex tempore, immediately upon the conclusion of submissions as revised from the transcript)
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