Hennessy, Patrick Joseph v Amalgamated Metals Foundry & Shipwrights Union Marsh v Amalgamated Metals Foundry & Shipwrights Union
[1984] FCA 266
•27 JULY 1984
And: AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS UNION
Re: MARSH
And: AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS UNION
Nos. I.26 and I.27 of 1984
Industrial Law
9 IR 65
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.
Industrial Law - election of national trustees - invalid rule - application for directions - whether the court should adjourn application to permit amendment of rules by the Union.
Industrial Law - election of national trustees - irregularity in election - application for orders modifying operation of rules.
Conciliation and Arbitration Act 1904 ss. 140, 165
SYDNEY
#DATE 27:7:1984
1. Application is adjourned until 31 August 1984 at 9.30 am. 2. Order that no further steps be taken in the conduct of the election of four national trustees of the Union pending further order.
There are two matters being heard together. One of them is an application of Patrick Joseph Hennessy against the Amalgamated Metals Foundry and Shipwrights Union, No. 27 of 1984, in which Mr Hennessy seeks relief under section 140 of the Conciliation and Arbitration Act. He complains that sub-rule (1) of rule 14 of the rules of that registered organisation is invalid, in that the sub-rule provides for the election of the national trustees of the organisation by members of branches in the Sydney metropolitan area.2. Although the matter has not been fully developed, as I understand the argument it is that section 133 of the Act requires that such office bearers be elected either pursuant to a direct voting system or a collegiate electoral system and that, having regard to the definitions of those terms in the Act, in either event a constituency consisting of the total membership of the unions as distinct from the Sydney membership is mandatory.
3. It is important to note that this is the only attack which has been made upon the validity of the sub-rule. The sub-rule also provides that nominees for the position of national trustees must be members of a Sydney branch, and that nominators of candidates are also required to be members of the Sydney branch.
4. When the matter came on for hearing, Mr Ryan QC for the Union sought an adjournment of the matter. He indicated that the purpose of the adjournment was to allow the Union to revise rule 14, and he has pointed out to me that the other matters, namely the question whether or not candidates should be limited to members of Sydney branches and whether or not nominators should be so limited, are matters which are at least intended to be considered. His application is for an adjournment of about one month.
5. The other matter before the court is an application filed by Mr Ralph Benson Marsh, who is also a member of the union, this being an application under section 159 of the Act seeking an inquiry into alleged irregularities in relation to the pending election of national trustees.
6. As I understand the current position, nominations for election to the four positions of national trustees have closed, and the Australian Electoral Officer, pursuant to a request by the Industrial Registrar, is in the course of preparing to dispatch ballot papers to persons who comply with the requirements of rule 14 as it currently stands. I understand that the Australian Electoral Officer will be dispatching ballot papers to the total membership of the Union in relation to other positions within the Union in respect of which elections are due.
7. Mr Marsh contends that the failure of rule 14 to comply with the Act necessarily results in there being an irregularity within the meaning of section 165, and that the court has jurisdiction to make orders inter alia modifying the operation of the rule so as to cause an election to take place in accordance with rules modified to comply with the Act. Mr McCarthy, on behalf of Mr Marsh, has referred me to the orders made by Mr Justice Evatt in Re Stapleton (1983) 50 ALR 293. In particular he refers to the passage in the judgement at page 310 and the orders at page 320. It would appear to me that the course sought by Mr Marsh goes no further than the course adopted by Mr Justice Evatt, and that Re Stapleton does provide support for the view that there is jurisdiction to do what is sought.
8. In the end it seems to me a matter of discretion as to whether one should accede to Mr Ryan's application or reject it and, subject to any further argument on the question of validity, proceed in the manner contended for on behalf of Mr Hennessy and Mr Marsh.
9. The relevant considerations are, in my view, nicely balanced. On the one hand it can be argued - and indeed this has been put with some force by Mr McCarthy - that it is highly convenient to take advantage of the fact that there is to be an election for other national office bearers within the immediate future, so that with little, if any, additional expense ballot papers could be sent to the members throughout Australia for election by them of four national trustees out of those already nominated for election in accordance with rule 14 as it stands. This would have the result that within a short time there would be four trustees elected by the total membership, a result apparently intended by the Act.
10. Mr Ryan, on the other hand, argues that it is desirable for the Union to be given an opportunity to revise the whole of rule 14 before there is any election pursuant to amendments imposed upon the union by the Court. He points to a number of matters in rule 14 which would justify some reconsideration, and I must say that I think there are a number of aspects of rule 14 which would bear consideration and, no doubt, some amendment.
11. So far as the evidence indicates, the question of the validity of rule 14 has arisen only very recently. The order nisi was granted by Mr Justice Gray in Sydney on 6 July last, and so far as the evidence indicates this was the first time in which there had been any suggestion to the Union or to its management that rule 14 was invalid.
12. It happened that there was a national conference of the Union between 2 and 6 July. It appears that no resolution in relation to rule 14 was sought to be moved at that conference. At least there is no evidence of that having occurred, from whatever source. There is a procedure under the rules for amendment by postal ballot, and it is this procedure which Mr Ryan envisages will be followed.
13. If I had evidence to indicate that the Union, having been apprised of the invalidity of rule 14, had shut its eyes to the problem, or for any reason had simply done nothing about the matter, I think that the course proposed by Mr McCarthy would be the appropriate course to take. In such event it would be proper for the court to step in and exercise its power so as to ensure an early election in accordance with valid rules.
14. However, that is not the position, so far as evidence would indicate, and I think there is a basic policy under the Conciliation and Arbitration Act that the content of union rules will, subject only to specific contraints of the Act, be for the determination of the union itself. The Union has but recently been apprised of the problem, and now assures me through senior counsel that it proposes to take the matter in hand with a view to revising the rule so as to make it conform with the Act and, incidentally, to overcome some additional problems.
15. It seems to me that it would conflict with the philosophy that unions, subject only to specific requirements of the Act, are entitled to formulate their own rules for me to take a course which insists upon an immediate election in accordance with limited amendments made by the Court.
16. There is nothing to indicate that there would be any disadvantage to the union by the existing trustees continuing in office for a period beyond the immediate term which, I am told, expires at the end of October. The question of authorization of continuance in office does not arise today but I envisage some short extention may be necessary at a later date. However, there is nothing to suggest that the trustees are other than competent and diligent, carrying out their duties in a proper way.
17. I think in all of those circumstances I would not be justified in exercising the overriding powers of the Court so as to force specific amendments upon the Union at this stage. I think on balance there ought to be a reasonabe opportunity to revise the rules. It is unfortunate that that almost inevitably will mean that the election cannot take place simultaneously with that of other national office bearers, and this no doubt will involve some additional expenditure. No doubt that is a matter which has been considered by the people who make decisions on behalf of the Union and who have instructed the counsel appearing for the Union in this matter. I do not think that I should seek to overrule their judgement on matters such as that.
18. The course that I propose to take is to accede to the application by Mr Ryan and to adjourn the further hearing of both matters for a period of about one month, to 31 August.
19. I indicate that if on that day any further adjournment is sought then evidence setting out what has occurred between today and then should be filed and served not later than Wednesday, 29 August. If the evidence does not satisfactorily indicate that action is being taken by the union to revise the rule then I will entertain the application by Mr McCarthy on behalf of his clients for orders to be made.
20. I make an interim order pursuant to section 163(1)(a) of the Act that no further steps be taken in the conduct of the election of four national trustees of the Union pending further order. The matter will stand over to Friday, 31 August. I will put it in at 9.30 if it is convenient to do that - both matters, that is to say.
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