Jones v Civil Service Association Inc
[2003] WASCA 321
•16 DECEMBER 2003
JONES -v- CIVIL SERVICE ASSOCIATION INC [2003] WASCA 321
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2003] WASCA 321 | |
| Case No: | IAC:10/2003 | 1 DECEMBER 2003 | |
| Coram: | HASLUCK J (DEPUTY PRESIDING JUDGE) MCKECHNIE J PULLIN J | 16/12/03 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | NEVILLE JOHN JONES CIVIL SERVICE ASSOCIATION INC DIANE MARGARET ROBERTSON |
Catchwords: | Industrial law President of Commission making orders continuing officers of an organisation in office Whether power in s 66(2) of the Industrial Relations Act 1979 a general power which could not be exercised because of the existence of specific powers Whether intervener denied the right to be heard Whether proceedings commenced on behalf of organisation without authority could be ratified by the organisation |
Legislation: | Industrial Relations Act 1979, s 66(2), s 71 |
Case References: | Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673 Australian Liquor Hospitality & Miscellaneous Workers Union (WA Branch) v Gay-Dor Plastics Ltd (1994) 74 WAIG 961 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Perlman v Perlman (1984) 155 CLR 474 Robertson v Civil Service Association [2003] WASCA 284 Rosenberg v Percival (2001) 205 CLR 434 Victoria Teachers Credit Union v KPMG (2000) 1 VR 654 Burswood Resort (Management) Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union (1997) 72 IR 180 Moore v Doyle (1969) 15 FLR 59 Re Murdoch University Academic Staff Association [2000] WAIRComm 44 (3 March 2000) Registrar v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (1997) 76 IR 425 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : JONES -v- CIVIL SERVICE ASSOCIATION INC [2003] WASCA 321 CORAM : HASLUCK J (DEPUTY PRESIDING JUDGE)
- MCKECHNIE J
PULLIN J
- Appellant
AND
CIVIL SERVICE ASSOCIATION INC
Respondent
- Appellant
AND
CIVIL SERVICE ASSOCIATION INC
Respondent
(Page 2)
Catchwords:
Industrial law - President of Commission making orders continuing officers of an organisation in office - Whether power in s 66(2) of the Industrial Relations Act 1979 a general power which could not be exercised because of the existence of specific powers - Whether intervener denied the right to be heard - Whether proceedings commenced on behalf of organisation without authority could be ratified by the organisation
Legislation:
Industrial Relations Act 1979, s 66(2), s 71
Result:
Appeals dismissed
Category: B
Representation:
IAC 10 of 2003
Counsel:
Appellant : Mr G McCorry
Respondent : Mr D H Schapper
Solicitors:
Appellant : Labourline
Respondent : Ilberys
IAC 12 of 2003
Counsel:
Appellant : Mr G McCorry
Respondent : Mr D H Schapper
Solicitors:
Appellant : Labourline
Respondent : Ilberys
(Page 3)
Case(s) referred to in judgment(s):
Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673
Australian Liquor Hospitality & Miscellaneous Workers Union (WA Branch) v Gay-Dor Plastics Ltd (1994) 74 WAIG 961
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Perlman v Perlman (1984) 155 CLR 474
Robertson v Civil Service Association [2003] WASCA 284
Rosenberg v Percival (2001) 205 CLR 434
Victoria Teachers Credit Union v KPMG (2000) 1 VR 654
Case(s) also cited:
Burswood Resort (Management) Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union (1997) 72 IR 180
Moore v Doyle (1969) 15 FLR 59
Re Murdoch University Academic Staff Association [2000] WAIRComm 44 (3 March 2000)
Registrar v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (1997) 76 IR 425
(Page 4)
1 HASLUCK J (DEPUTY PRESIDING JUDGE): I have had the advantage of reading in draft the reasons for judgment of Pullin J in this matter. I agree that the appeals should be dismissed for those reasons.
2 MCKECHNIE J: For the reasons given by Pullin J, with which I am in agreement, these appeals should be dismissed.
3 PULLIN J: These two appeals arise out of decisions made by the President of the Western Australian Industrial Relations Commission and the Full Bench of the Commission to sort out perceived defects in the appointment of office bearers in the respondent. An order was made that both appeals be heard together.
4 Before setting out the chronology of events, I refer to s 71 of the Industrial Relations Act 1979 ("Act") which contains provisions relating to State branches of Federal organisations. Section 71 authorises the Full Bench of the Commission to express an opinion that the rules of a State organisation and its counterpart Federal body are substantially the same and authorises the Registrar of the Commission to issue a certificate that provisions of the Act relating to elections do not apply in relation to the State organisation and that office holders in the State organisation may be those who hold office in the counterpart Federal body.
5 The precise terms of s 71 are as follows:
"(1) In this section –
'Branch' means the Western Australian Branch of an organisation of employees registered under the Commonwealth Act;
'Counterpart Federal Body', in relation to a State organisation, means a Branch the rules of which –
(a) relating to the qualifications of persons for membership; and
(b) prescribing the offices which shall exist within the Branch,
are, or, in accordance with this section, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter; and
(Page 5)
- 'State organisation' an organisation of employees that is registered under Division 4 of Part II.
- (2) The rules of the State organisation and its Counterpart Federal Body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same.
…
(5) Where, after the coming into operation of this section -
(a) the rules of a State organisation are altered pursuant to section 62 to provide that each office in the State organisation may, from such time as the Committee of Management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation's Counterpart Federal Body, holds the corresponding office in that body; and
…
the Registrar shall issue the State organisation with a certificate which declares -
(c) that the provisions of this Act relating to elections for office within a State organisation do not, from the date referred to in paragraph (b), apply in relation to offices in that State organisation; and
(d) that, from that date, the persons holding office in the State organisation in accordance with the rule referred to in paragraph (a) shall, for all purposes, be the officers of the State organisation,
- and the certificate has effect according to its tenor."
6 The following chronology of events is not in dispute.
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"(1) THAT Ms Toni Walkington and Ms Joanne Gaines were not validly appointed or elected nor did they validly hold office in the respondent organisation at any time since 28 November 2001 as General Secretary and Assistant General Secretary, respectively, of the respondent organisation. (2) THAT any purported appointment or election of Ms Toni Walkington and Ms Joanne Gaines to such offices was contrary to and/or in breach of and/or ultra vires the rules of the Civil Service Association of Western Australia Incorporated, and particularly rules 19, 20 and 22. (3) THAT any such appointment be and is hereby declared void. (4) THAT the said offices have been vacant since 28 November 2001. (5) THAT this matter be listed for further hearing and determination on or before the 15th day of April 2003." |
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i) The s.71 certificate issued by the Registrar on 22 November 1993 ceased to have an effect on and from the date of de-registration and cancellation of |
(Page 8)
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k) There is no evidence that any person has been appointed or elected its General Secretary or Assistant General Secretary, and certainly no evidence that Ms Walkington and Ms Gaines have been. In fact, it was conceded that they have not been. l) The CSA has failed to comply with its rules in permitting Ms Walkington and Ms Gaines to hold office as General Secretary and Assistant General Secretary without appointment or election in accordance with the rules of the CSA, since 28 November 2001." | |
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"(5) THAT Toni Beverley Walkington and Joanne Margaret Gaines hold the offices of General Secretary and Assistant Secretary of the above-named respondent organisation for all the purposes of its rules for as long as they hold the corresponding offices in the Community and Public Sector Union, pending the obtaining of a s.71 certificate by the respondent in relation to the said Community and Public Sector Union WA Branch, as counterpart federal body, or until a state election for those offices is held, or until further order. (6) That not withstanding the terms of paragraph (a) hereof, this order will expire and cease to operate |
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As a result, the case was adjourned until the afternoon – about 90 minutes later – and then Dr J J Hockley and a Mr Jackson instructing Dr Hockley appeared and sought an adjournment. The adjournment was refused. |
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"(1) THAT the rules of the applicant, the Civil Service Association of Western Australia Incorporated and its Counterpart Federal Body, the CPSU, the Community and Public Sector Union, Western Australian Branch, relating to the qualifications of persons for membership be and are deemed to be the same, in accordance with s71(2) of the Industrial Relations Act 1979 (as amended) ('the Act'). (2) THAT the rules of the said Counterpart Federal Body prescribing the offices which shall exist in the Branch be and are hereby deemed to be the same as the rules of the said applicant herein, prescribing the offices which exist in the said applicant, in accordance with s71(4) of the Act." |
Grounds of Appeal – IAC 10 of 2003
7 This appeal concerns the order made in PRES 3 of 2003, whereby Ms Walkington and Ms Gaines were continued in office.
(Page 10)
Ground 1
8 This ground complains about the finding of the President in par 15 of his supplementary reasons for decision that:
"Because of that section and s.56(1)(e) it follows in this case that no person can hold office when elected to office within the organisation, the CSA, for a period exceeding four years. (See s.56(1)(e)). (The rules must so provide. If they do not they are, ipso facto, unlawful and disallowable under s.66 (see s.66(2)(a))). In any event, the rules of the CSA provide that the principal officers shall be elected for four years only and all other members of the Council and proxy councillors, for two years only. (See rules 12(b)(ii), 13(a), 14, 15, 16, 17 and 20). Thus, officeholders of the CSA elected before 1993 all cease to hold office four or two years after their election."
9 Complaint is made about this finding on the basis that this allegedly erroneous conclusion led the President to consider that it was necessary to appoint someone to fill the void which was created by his decision that Ms Walkington and Ms Gaines did not hold office and the decision in PRES 5 of 2003 that office holders were also not validly appointed. The appellant argued that she had previously been an office holder, namely a former President, and that she continued in office.
10 Ground 1 reads:
"The Hon President erred in law in construing the provisions of the (Act) … to find that persons elected to offices in the Respondent or in the Respondent's Counterpart Federal Body prior to 1 July 1994, did not remain in office at the date of the proceedings, when on a proper construction of section 56 of the … Act and the Respondent's rules, the effluxion of time does not operate to bring to an end the occupation of any office."
11 This ground of appeal seeks to question the President's reasons set out above insofar as they concern s 56. It is, however, unnecessary to deal with this ground, because, as is apparent from the reasons quoted above, the President also found that the rules provided for finite terms for principal officers. No complaint is made about that part of the reasoning, and therefore the finding about officers ceasing to hold office remains a decision supported by unchallenged reasons. These latter reasons could not be challenged under s 90 of the Industrial Relations Act.
(Page 11)
12 Ground 1 must therefore be dismissed.
Grounds 2 and 3
13 Grounds 2 and 3, in effect, contend that the only permissible method of dealing with the extraordinary vacancies was to order that an election be conducted and that there was no power under s 66(2) of the Act to make the orders continuing Ms Walkington and Ms Gaines in office, even for the limited period provided for in the order.
14 The appellant submitted that an order that persons be deemed to hold office could only be made under s 66(f) and that order could only be made in connection with an enquiry under s 66(2)(e), which concerned an enquiry into elections for office. The appellant correctly pointed out that this was not an enquiry into any election for an office.
15 In my opinion, that argument must fail. Section 66(2) opens with the following words:
"(2) On an application made pursuant to this section, the President may make such order or give such directions relating to the rules of the organisation, their observance or non-observance or the manner of their observance, either generally or in the particular case, as he considers to be appropriate and without limiting the generality of the foregoing may ¾
…"
16 This general conferral of power is then followed by paragraphs authorising the President to make certain specific orders, such as disallowing rules, directing the alterations of rules, declaring the interpretation of rules, and enquiring into elections.
17 The appellant referred to Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678, where Mason J said:
"It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power."
(Page 12)
18 That statement, however, while applicable in many cases is not so in this case for the reasons given by Mason J in the Leon Fink case at 679, where he said:
"In this case the words 'without limiting the generality of the foregoing' evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. The clause therefore operates to negative the restrictive implication which might otherwise have been derived from the presence of the specific power …"
19 The opening words to s 66(2), which contain the general power in this case, make it clear that orders can be made "relating to the rules of the organisation, their observance or non-observance or the manner of their observance … as [the President] considers to be appropriate …". The words "relating to" are words of the widest import and should not, in the absence of compelling reasons for the contrary, be read down: Perlman v Perlman (1984) 155 CLR 474 at 489. The orders made by the President in this case relate to the non-observance of the rules of the respondent.
20 A second aspect of ground 2 was that it was "not appropriate" for the President to have made the orders which he did. I take this to be a complaint that if the President did have power to make the orders he did under s 66(2), that he erred in the exercise of his discretion. It was argued by the appellant that this was a ground of appeal open under s 90 of the Act by reason of the decision of this Court in Robertson v Civil Service Association [2003] WASCA 284. I disagree with that submission. Robertson's case is authority for the proposition that if facts had been proved justifying the exercise of discretion under s 66(2), the President does not then have a discretion to refuse relief. The case is not authority for the proposition that an appeal lies under s 90 of the Act whenever there has been an exercise of the discretion. Grounds 2 and 3 must fail.
Appeal IAC 12 of 2003
Ground 1
21 Ground 1 is a complaint about the denial of the right to be heard.
22 The ground reads:
(Page 13)
"The Full Bench, without any valid basis for doing so, denied the Appellant the right to be heard, in that a failure to afford the Appellant an opportunity to fully and properly be heard amounts to a denial of the right to be heard."
23 Section 31 of the Act states that a party to proceedings or a person permitted to intervene may appear either in person, by an agent, or, in certain circumstances, by a legal practitioner. The appellant filed written submissions contending that the Full Bench erred in refusing Ms in de Braekt a right of audience. It is not necessary to consider those submissions because this ground does not complain about the decision of the Full Bench to refuse to hear Ms in de Braekt. The ground is that the appellant was "denied … the right to be heard, in that [there was] a failure to afford the Appellant an opportunity to fully and properly be heard …". The complaint is therefore that in circumstances where the Commission, having decided that it would not permit Ms in de Braekt to address the Court, refused an adjournment in order to have someone else properly briefed to make submissions about the case.
24 As to whether procedural fairness is denied because an adjournment is not granted in a case, will depend upon the circumstances of the particular case.
25 The application before the Full Bench was, in effect, ex parte. Section 71 does not expressly state who may institute proceedings asking the Full Bench to express the opinion referred to in s 71(2), or who may make the application for the Registrar to issue a certificate under s 71(5). However, it may be inferred from a reading of s 71 that the State organisation is the party which may apply. Such an application is not inter partes, because no order is sought against another person. It may be important in some such cases, and of assistance to the Commission, to give leave to a person to intervene. An intervener is not a party against whom, or in favour of whom, orders may be made. In this case, leave was granted to the appellant to intervene. The application asking the Full Bench to express the opinion under s 71(2) was a matter which had to be dealt with as a matter of relative urgency. The point had been reached where the President had declared that all of the office holders ceased to hold office, and he had made orders which temporarily continued those who purported to hold office only for a short time.
26 An outline of submissions was prepared by Ms in de Braekt. It consists of nine pages of detailed submissions. The Full Bench ruled that Ms in de Braekt was not entitled to appear and the case was then
(Page 14)
adjourned for an hour-and-a-half. In that time, Ms in de Braekt instructed counsel and a solicitor to appear, namely Dr J J Hockley and Mr B Jackson. They did appear, made some brief submissions, and asked for an adjournment. This application was refused. The reasons of decision of the President and Commissioner P E Scott said that notwithstanding that Ms in de Braekt was denied a right of audience, that counsel appeared and that:
"… counsel was able to make oral submissions on behalf of the interveners and to put before the Full Bench, in addition, an already prepared and full set of written submissions in relation to the interveners' case. Some of the written submissions were irrelevant to the notice of intervention even before it was amended by the Full Bench, and certainly some were irrelevant to it after that notice was amended by the Full Bench. However, the remainder were considered."
28 In this case, however, the hearing is in a statutory tribunal and s 27(1)(hb) authorises the Commission to require argument to be presented in writing and to decide matters on which it will hear oral
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evidence or argument. In the face of that provision, and the fact that detailed written submissions were received and considered and some oral submissions were made, this ground cannot succeed.
29 I would dismiss this ground.
Ground 2a
30 The application for the s 71 order was made on behalf of the respondent by a Mr John Dasey, an industrial officer of the respondent. The submission is that there could be no valid application because there were no validly appointed officers on the council who could issue instructions. This application was lodged on the day before the order was made in PRES 2003 continuing Ms Walkington and Ms Gaines in office. Subsequently, however, the decision to make the application for the s 71 order was ratified by the council of that body. The council included persons who were continued in office by an order in PRES 5 of 2003, and that order has not been appealed.
31 In my opinion, the subsequent ratification of the institution of proceedings validated the commencement of proceedings: Victoria Teachers Credit Union v KPMG (2000) 1 VR 654; Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673; Australian Liquor Hospitality & Miscellaneous Workers Union (WA Branch) v Gay-Dor Plastics Ltd (1994) 74 WAIG 961.
32 In any event, the Full Bench's decision about authority and ratification is not reviewable by the Industrial Appeal Court under s 90 of the Act. This ground should therefore be dismissed.
Ground 2(b)
33 This ground reads that:
"The Full Bench in construing section 71(4) of the … Act considered that it was only required to determine whether the rules of the respective organizations had offices therein with the same or substantially the same description, whereas on a proper construction of section 71(4), the Full Bench was required to consider whether the functions to be performed by the respective offices, the powers capable of being exercised by the holders of the respective offices and the qualifications for election or appointment to the respective offices were the same."
(Page 16)
34 Section 71(4) of the Act reads:
"(4) The rules of a Counterpart Federal Body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch."
35 In my opinion, it is quite correct to say, as the appellant does, that the task is not one merely of seeing whether the names of the offices held in one organisation are the same or substantially the same as the offices in the other organisation. It is necessary for the Full Bench to consider at least the functions and powers of the office based upon a consideration of the similarity or otherwise of the content of the rules. It is clear, however, that the content of the rules was considered by the Full Bench. A statutory declaration was made by Ms Gaines, setting out the information required by reg 101. Schedule 2 of the statutory declaration contained a statement comparing the offices which existed in the respondent and within the CPSU and the qualifications for office and appointment, along with a reproduction of what were seen to be the relevant rules. There was also a summary of what these rules provided. The rules stated what the qualifications for office were.
36 The criticism that the Full Bench decided the matter "only" by determining whether "the rules of the respective organisations had offices" therein with the same "description" and that the Full Bench did not "consider" whether the powers and functions to be performed and the qualification for election and appointment were the same, cannot be sustained. It is not suggested that the Full Bench did not read the statutory declaration, and in the absence of any such suggestion the only proper conclusion to draw is that the Full Bench did consider the material before it and did not limit itself to deciding merely that the two organisations had offices with the same description.
37 In my opinion, both appeals should be dismissed.
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