King, F.F v Willis, F.K. and Ors King, F.F. v Australia Postal and Telecommunications Union

[1981] FCA 203

Re: FRANK FINNAN KING
And: F.K. WILLIS, J. FLINT, D.A.G. GEISLER, G. SLATER, R.F. ARNDT, J.R. JAMES,
M.J. ANTHONY, D.B. BOWLER, R.J. BRISKEY, J. KANAN, T.N. LANCASTER, R.R. ROE,
N. BATTESE, W. PHILLIPS, M.A. HAWKINS, P. WATSON, L. CHALKER, B. POLSON, R.L.
SHEPPARD, B. STAINES, G. BATE, K. BROWN, P. HACKETT, P. HENN, L.C. RILEY, T.
DEERY, A. FERRETT, L. GORMAN, B. McKENZIE, M. MINCHINTON, J. O'BRIEN, R.
SMITH, AUSTRALIAN POSTAL AND TELECOMMUNICATIONS UNION
N.S.W. Nos. 9 and 10 of 1981
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - Registered organization - temporary organiser - appointment followed by reappointment to such position so that combined tenure is in excess of maximum permitted under Rule - employee - right of Executive to terminate rescission motion - chairman's ruling that motion out of order followed by motion of dissent - effect of - Conciliation and Arbitration Act 1904 s.141 and s.171C.

HEARING

SYDNEY

#DATE 16:11:1981

ORDER

The order nisi herein be discharged.

The application be dismissed.

JUDGE1

In matter N.S.W. No.9 of 1981 by rule to show cause Frank Finnan King (the applicant) a member attached to the New South Wales Branch of the Australian Postal and Telecommunication Union (the organization), an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act) sought an order under s.141 of the Act that certain named respondents being the members of the Federal Executive and the State Executive of the New South Branch of the organization perform and obey the rules of the organization by recognising and treating the applicant as a temporary organiser of the New South Wales Branch appointed pursuant to r.31(g) thereof.

In addition the applicant has brought an application purportedly under s.171C of the Act (N.S.W. No. 10 of 1981) seeking orders validating the election of the applicant to the office of Northern Organiser of the New South Wales Branch and that he hold that office until the next branch election and further that the rules of the organization be amended so as to provide for the position of such Northern Organiser.

After hearing evidence and submissions by counsel representing the applicant and certain of the respondents who appeared the Court discharged the order nisi herein granted under s.141 and dismissed the said application brought under s.171C, the Court then indicating that it would publish its reasons at a later date.

Rule 31 of the rules of the organization, so far as is relevant, reads:

31 Branch Management

(a) For the purposes of administration, the union shall be divided into six State Branches, correspondening with the respective territorial area of the six States of the Commonwealth. The headquarters of each State Branch shall be located at the capital city of the State. Members must be attached to the State Branch covering the locality in which they are employed except for areas of mutual agreement between State Branches. Each State Branch shall, subject to these rules and resolutions of Conference, manage the local affairs of the union within its territorial area.

(aa) . . . . . . .

(b) Each Branch shall have for its management a State Executive consisting of a President, two Vice-Presidents, Secretary-Treasurer, Assistant Secretary, full time Organisers as specified in this sub-rule and not fewer than eight nor more than eighteen Group Representatives and who shall be elected for a period of two years. Provided that any person elected to an office which has been declared a full time office shall be elected for a term of office of two years and for a term of office of four years on re-election. For the purposes of Branch administration the following Branch offices shall be declared full time positions:

New South Wales - President, Secretary-Treasurer, Assistant Secretary, five(5) Organisers.
. . . . . . . . .

(g) Any Branch may appoint a member of the Union as a Temporary Organiser for any period not exceeding twelve (12) months at such rate of payment as determined in Rule 39. No Branch shall employ any staff other than clerical staff or Temporary Organiser - unless and until the approval of the Federal Executive has been obtained.

Rules 37 and 37A make provision for the filling of casual vacancies in the various offices in the Branch including the office of organiser by the State Executive where the remainder of the term of office is less than 12 months.

Mr King was appointed a temporary full time paid organiser by the New South Wales Branch Executive on 17 October 1979, effective from the 22 October 1979, following the resignation of a Mr Jack Mason. The resolution adopted by the State Executive reads:

"That F. King be appointed temporary organiser from Monday 22/10/79 until a survey is held to guide the appointment of a northern organiser and that he be stationed in Sydney to save T/A incurred by outposting."

Thereafter a survey of certain members was conducted by the Branch returning officer who circulated all Branch representatives by notice dated 23 January 1980 in the following terms:

"To: ALL A.P.T.U. REPRESENTATIVES

Dear Member,

In accordance with a decision of the State Executive, NOMINATIONS are hereby called for the following position:-

NEWCASTLE AND NORTHERN ORGANISER

Since its inception in February, 1977, the area covered by this position has been extended to Macksville on the North Coast and the Central Coast Sub-Branch area. All financial members of the A.P.T.U. in this area will be entitled to vote.

Candidates must be financial in accordance with the rules and can nominate from anywhere in New South Wales. Nomination papers must be signed and their private addresses given by the nominators and the nominee.

The candidate selected by the members' vote will be appointed by the N.S.W. State Executive for the remainder of the term of the present State Executive.

Nominations will close at 12 noon, Wednesday, 13th February, 1980 and must be addressed to:-

THE BRANCH RETURNING OFFICER,
BOX K.741 POST OFFICE,
HAYMARKET, N.S.W.

Candidates are asked to print their names on nomination forms and indicate whether they are postal, line staff or transport.

Yours fraternally,

signed

BRANCH RETURNING OFFICER

As six candidates nominated for the position of the northern organiser a ballot was conducted, the electorate being the financial members in the "northern area" extending from Gosford north to Macksville. Mr King was the successful candidate, the returning officer declaring the ballot on 23 April 1980. At the State Executive Meeting held that day it was resolved that "the Branch returning officer's report re election of northern organiser be received and adopted and Telecom be advised accordingly".

The certified rules of the organization then did not and still do not make any provision for the carrying out of the above procedure to ascertain the views of the relevant members as to whom they wish to be the temporary organiser for their area. Nor were there any by-laws laying down such provisions. Indeed the applicant agreed that despite the fact that he had received the highest number of votes in the survey, the State Executive could have appointed any other member to the position.

Prior to 1976 it had been the practice for some years to have one of the five organisers of the New South Wales Branch referred to in r.31(b) "outposted" from Sydney to cover the area of the Newcastle sub-branch. That area covered broadly the Newcastle area north to Macksville. A Mr Cassidy who resided in Newcastle had organised for some years solely in this area. In 1976 Mr Cassidy resigned.

At the 52nd Annual Conference of the organization held in Melbourne in November 1976 it was resolved as follows:

"Conference expresses its full support for the proposal that there be a full-time official based at Newcastle who should be elected by the financial members within the territorial area covered by the Newcastle sub-Branch and recommends that the New South Wales Branch take action in accordance with the rules to establish such a position on a temporary basis, vide 31(i) pending the next election of Branch officials when a rank-and-file ballot may be conducted concurrently with the Branch elections. The terms of the election be consistent with the rules for full-time offices and be set out in a By-law formulated under the provisions of Rule 47."

At that time r.31(i) provided that:

(i) Any Branch may appoint a member of the Union as a temporary organiser for any period not exceeding twelve (12) months in any financial year, at such rate of payment as determined in Rule 39. No Branch shall employ any male staff in any capacity whatsoever - including that of temporary organiser - unless and until the approval of the Federal Executive has been obtained.

Rule 31(i) was amended on 1 March 1978 and renumbered 31(g) to read as set out earlier herein.

The rules provide that Annual Conference, shall, except on matters decided by members by plebiscite of the membership, be the supreme governing body of the organization (r.6(a)). Rule 47 then provided that:

47. By-Laws

Branches shall have power to make by-laws for the conduct of the management of the Branch and of any of the Committees thereof; provided that any by-laws so made do not conflict with these rules and have been submitted to and approved of by the Federal Executive; provided further that any by-law submitted in accordance with this rule shall be decided by the Federal Executive within twenty-eight days.

As indicated above neither the rules of the organization nor the by-laws were amended to make provision for a full-time organiser based at Newcastle and for that person to be elected by members working in the Newcastle and northern area. Following the 1976 Conference a Mr Mason a member of the New South Wales Branch was appointed in February 1977 by the State Executive as "the northern organiser until the next general elections". These were due to be held in September 1977. At those elections no election for a Newcastle and northern organiser was held but Mr Mason was reappointed by the State Executive from time to time up and until 31 May 1978, this last appointment being stated to be for the period ending 31 May 1979. Shortly after that date Mr Mason resigned. Mr King was subsequently appointed the temporary organiser on 17 October 1979 for the period referred to earlier herein.

It is to be noted that the notice calling for nominations circulated by the returning officer on 23 January 1980 set out above indicated that the candidate selected as temporary organiser was to be appointed for the remainder of the term of the then State Executive, namely until September 1981. Accordingly on the appointment of Mr King on 23 April 1980 it was then anticipated that he would hold the position of temporary organiser in the said area for a period of some seventeen months.

At a State Executive Meeting held on 19 December 1980 a Mr T. Deery moved a motion rescinding the resolution of the 23 April 1980 appointing Mr King as such temporary organiser. Such motion was ruled out of order by the Chairman. After heated discussions three members of the Executive including Mr Deery were expelled from the meeting by the Chairman for disorderly conduct, allegedly under r.63(t).

During their absence a resolution was adopted by seven votes to two in the following terms: "That the northern organiser, F. King be appointed for the term of the current State Executive in line with the returning officer's report and circular calling for nominations".

The returning officer's report referred to in that motion was the report dated 23 April 1980 referred to earlier herein.

In a letter dated 2 January 1981 Mr B. Polson one of the three members of the Executive who were expelled from the 19 December 1980 meeting wrote to the secretary of the New South Wales Branch of the organization giving fourteen days notice that he intended to move that the motion adopted by the Executive on 19 December 1980 which is set out above be rescinded. Such notice of rescission was in accord with the provisions of r.45A(c).

At a special meeting of the State Executive held on 9 March 1981 Mr Polson moved a rescission motion in accordance with his notice. Such motion was seconded by Mr R. Sheppard who was the third member of the Executive expelled from the meeting of 19 December 1980. The motion was ruled out of order by the Chairman, the Branch President. Mr Polson then moved a motion that the Chairman's ruling to be dissented from. Such dissent motion was carried ten to seven. A member of the Executive then moved that Mr Polson's motion of rescission be adjourned to a special meeting of the Executive to be held on 31 March 1981. This motion was lost ten to eight. The rescission motion was then put and carried ten to eight. The minutes of that meeting which were before the Court show that there were nineteen members of the Executive including the President present at the meeting.

On 11 March 1981 a regular meeting of the State Executive was convened. A copy of the minutes of that meeting show that the meeting opened at 6.20 p.m. and that sixteen members, including the President, attended. Immediately after apologies were accepted the President as Chairman of the meeting read the following statement:

"Following the receipt of a telex from the Federal Executive that was read and recorded in the Minutes of a Special State Executive on 9-3-81 and the matter where the State Executive dissented from my ruling in relation to the rescission of the resolution relating to the Northern Organiser's position. I rule that the rescission motion moved by B. Polson on Monday 9.3.81 out of order for the following reasons:

1. The rescission motion was null and void due to the time lapsing on hearing the matter since the date of receipt of correspondence.

2. That there was no valid suspension of Standing Orders to discuss the matter.

3. That the notice of motion did not arise out of the Minutes being dealt with.

4. And further, I direct the State Secretary to continue payment to F. King as temporary organiser of the N.S.W. Branch."

These minutes show that a point of order was taken followed by a motion that the Chairman's ruling be dissented from. The Chairman ruled "I rule that there is no dissent". Further points of order were taken. Throughout the period no motion was put, the Chairman repeating from time to time that he was directing the meeting to proceed to the business before it. At 7.09 p.m. the Chairman formerly closed the meeting without any of the business before it being called on.

Based on the above facts Counsel for the applicant claimed that on 10 April 1981, the date of the order nisi herein, the applicant validly held the position of temporary organiser for the northern area of the New South Wales Branch of the organization. It was claimed that the evidence showed that he was appointed as such temporary organiser by the State Executive on three occasions for three separate periods, none of which was in excess of twelve months. The first appointment on 17 October 1979 was "until a survey is held". That survey was held and completed on 23 April 1980. The second appointment on 23 April 1980 was by way of a resolution of the State Executive which merely received and adopted the returning officer's report whilst the third appointment on 19 December 1980 was for the term of the current State Executive, i.e. for some nine months.

It was further submitted on behalf of the applicant that where such appointment was for an unspecified period then it was to be inferred that the appointment having been made pursuant to r.31(g) the rule would be observed and that consequently any such appointment would have been for a period not in excess of twelve months.

The applicant further claimed that the rescission motion carried on 9 March 1981 rescinding his appointment by the State Executive as temporary organiser on 13 December 1980 had been validly ruled out of order by the Chairman at the meeting of the Executive held on 11 March 1981. These submissions are rejected.

The respondents submitted that however one analysed Mr King's occupancy of the position of northern organiser at the time when the order nisi herein was granted, namely 10 April 1981, the occupancy was invalid.

First, if the particular position was in law an "office" as defined by the Act, it was necessary that the office be filled by an election and that the certified rules of the organization provide for such an election in accordance with s.133 of the Act. The rules of the organization made no such provision. I accept this submission. It is not to the point that the occupation of such "office" followed a de facto survey or "election" by certain members of the organization, no matter how carefully conducted the survey or the "election" may have been.

The respondents second submission was that if the applicant was not the holder of such an office, he must then have been an employee of the organization. This being so, under what authority was he so employed? The applicant points to r.31(g) for that authority. But it is clear on the evidence that on 23 April 1980, Mr King's employment as northern organiser can in no sense be said then to have been on a temporary basis within the meaning of that word in the sub-rule. Again I accept this submission.

In my view the overall effect of the evidence clearly negatives any intention to appoint a northern organiser to act in some "temporary" capacity. The appointment was at that time to be for some seventeen months. It is noted that the rule under which a full-time organiser is elected provides for a term of office in the first instance of only two years. If it were open for a member to be successively appointed as a so called temporary organiser in the way that the applicant claims he has been, he can perform all the functions and enjoy all the benefits of a full time elected organiser (other than being a member of the State Executive) without ever facing the electorate. He need only obtain the support of a majority of the State Executive from time to time. This, in my view, would be completely contrary to the intent and purpose of the r.31(g).

This being so Mr King was at all relevant times after 23 April 1980 an employee of the organization different from the temporary organiser and the clerical staff contemplated by r.31(g). Accordingly it was necessary for the branch to obtain the approval of the Federal Executive before employing him. There is no evidence to show that such approval was sought or that such approval was obtained. Accordingly such employment was contrary to the rules of the organization and consequentially void.

If on the other hand it was determined that on 23 April 1980 the applicant was appointed a temporary organiser within the meaning of r.31(g) then it is clear in my view that he was then purportedly appointed for the balance of the term of the then State Executive, namely to September 1981 some seventeen months later. This clearly was contrary to the provisions of r.31(g). Further, in my view, the purported appointment by the Executive of the applicant on 13 December 1980 can not be regarded as an appointment de novo because it is in terms a "re-appointment". The then appointment describes the applicant as a "northern organiser". This description could only come about as a result of his appointment on 23 April 1980 and the December 1980 resolution was, in my opinion, no more than a confirmation of something that was ongoing and not an appointment de novo.

Further, the respondents submitted that even if the said resolution of the State Executive on 13 December 1980 was a valid appointment of the applicant as temporary organiser under r.31(g) for the period ending September 1981, then that appointment could be terminated by the State Executive at any time during that period and that such termination, subject to a claim for wrongful dismissal, would be valid. This in fact was done and in my view validly done by the Executive on 9 March 1981 when it adopted a motion rescinding the resolution of the Executive of 13 December 1980. It is clear in my view that the ruling of the Chairman on 11 March 1981 that the said rescission motion of 9 March 1981 was out of order was beyond power and consequently null and void. The Chairman had already ruled that the rescission motion was out of order on 9 March. That day a motion of dissent from that ruling was carried. Such resolution was then and thereafter binding on the Chairman unless the rules of the organization specifically provided to the contrary. The Chairman's only course thereafter in regard to that motion lay under the rules. Rule 63(mm) provides as follows:

63. (mm)Where a motion or amendment is ruled out of order by the Chairman on the grounds that it conflicts with the rules, the resolution of Conference or the instructions of the Federal Executive, and a motion of dissent is moved, the Chairman shall accept the same and if the motion be carried, the full facts of the case shall be reported to the Federal Executive for determination in accordance with the provisions of Rule 64.

Accordingly in all the circumstances the order nisi herein was discharged.

In regard to the application filed under s.171C of the Act, it is clear in my view that such application was ill-conceived. Counsel for the applicant stated that the application was taken out in case it was determined that the relevant position occupied by the applicant was "an office" within the meaning of the Act but if the Court found it unnecessary to determine that question then the application should be dismissed. In view of the Court's findings the said application is dismissed.