Kingham v Ferguson

Case [2001] FCA 537

FEDERAL COURT OF AUSTRALIA

Kingham v Ferguson [2001] FCA 537

INDUSTRIAL LAW – rule to show cause – application for orders that the respondents perform and observe the Rules by treating postal vote as invalid - whether rule enabling Divisional Secretary to conduct postal vote subject to implied limitation of urgency – whether review by Divisional Conference of decision of Divisional Executive can be conducted by postal vote.

Workplace Relations Act 1996 (Cth): s 196, s 209

Adams v Yung (1988) 83 FCR 248 referred to

MARTIN KINGHAM & ORS v ANDREW FERGUSON & ORS
V 271 of 2001

GOLDBERG J
9 MAY 2001
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 271 of 2001

BETWEEN:

MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE

Applicants

AND:

ANDREW FERGUSON, JOSE MARIO BARRIOS, NIKOLA BOTIC, HUNBERTO BRAZAO, BRANKO BUKARICA, ROBERT COCHRANE, MICHAEL FOSTER, LINDSAY FRASER, BARRY HEMSWORTH, MICHAEL LANE, MARK McBRIDE, PETER McCLELLAND, LUDWIG STRUTZENBERGER, JOHN SUTTON, ANTE ZDRILIC, TREVOR JOHN MELKSHAM, JOE McDONALD, KIM YOUNG, KEVIN McPARLAND, TERRENCE JAMES McINTYRE, CARL PURCELL, WILLIAM WALLACE TROHEAR, LAURENCE JOHN GENRICH, CHRISTOPHER PRICE, THOMAS SMITH, JASON PETER STEIN, PAUL BRIAN WATERS, GEORGE WASON, GLENN PARRY, SARAH SCHOONWATER, DALE LESLIE CRACKNELL, ANTHONY ROSS BENSON, JOHN CUMMINS, JOHN FURLONG, ALBERT EDWARD LITTLER, JOHN LOH, DAVE NOONAN, FRANCIS O’GRADY, WILLIAM OLIVER, JOHN SETKA, ROY WILLIAMS, BEN CARSLAKE, P L KAINE

Respondents

JUDGE:

GOLDBERG J

DATE OF ORDER:

9 MAY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”), the respondents and each of them perform and observe the Rules (“the Rules”) of the Construction, Forestry, Mining and Energy Union, Construction and General Division (“the Division”) by treating as null and void and of no effect the decision of the fourteenth respondent under rule 8(xv) of the Rules on or about 9 April 2001 to conduct a postal vote of the Divisional Conference of the Division on the matter of a review sought by the first applicant of the decision of the Divisional Executive of the Division on 22 March 2001 to make certain changes to the Rules (“the postal vote”).

2.Pursuant to section 209 of the Act, the respondents and each of them perform and observe the Rules by treating the postal vote as null and void and of no effect.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 271 of 2001

BETWEEN:

MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE

Applicants

AND:

ANDREW FERGUSON, JOSE MARIO BARRIOS, NIKOLA BOTIC, HUNBERTO BRAZAO, BRANKO BUKARICA, ROBERT COCHRANE, MICHAEL FOSTER, LINDSAY FRASER, BARRY HEMSWORTH, MICHAEL LANE, MARK McBRIDE, PETER McCLELLAND, LUDWIG STRUTZENBERGER, JOHN SUTTON, ANTE ZDRILIC, TREVOR JOHN MELKSHAM, JOE McDONALD, KIM YOUNG, KEVIN McPARLAND, TERRENCE JAMES McINTYRE, CARL PURCELL, WILLIAM WALLACE TROHEAR, LAURENCE JOHN GENRICH, CHRISTOPHER PRICE, THOMAS SMITH, JASON PETER STEIN, PAUL BRIAN WATERS, GEORGE WASON, GLENN PARRY, SARAH SCHOONWATER, DALE…

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AGLC
Kingham v Ferguson [2001] FCA 537
Case
[2001] FCA 537
Decision Date

CaseChat Overview and Summary

In the case of Kingham v Ferguson, the applicants, including Mr Kingham, the Secretary of the Construction and General Division, Victorian Building Unions Divisional Branch, sought orders against the respondents, who are also delegates to the Divisional Conference, regarding the method and timing of elections for officers of the Division. The central issue was whether a review by the Divisional Conference of a decision of the Divisional Executive could be conducted via a postal vote, as proposed by Mr Sutton. The applicants argued that such a postal vote was not allowed under the Divisional Rules, while the respondents contended that the Divisional Rules did not create a right for a review by the Divisional Conference and thus could not be conducted by postal vote.

The court examined the Divisional Rules to determine if there was an implied limitation on the power of the Divisional Secretary to conduct a postal vote for a decision of the Divisional Conference. It concluded that there was no such implied limitation, as the Divisional Rules did not outline a mechanism for initiating a review or specify who had the right to call for such a review. Furthermore, the court found that a review of the "actions" of the Divisional Executive, as opposed to a review of a decision, was broader and not necessarily linked to a decision-making process. Therefore, the court ruled that the Divisional Rules did not permit a review of a decision of the Divisional Executive to be conducted by a postal vote.

The court made orders under section 209 of the Workplace Relations Act 1996 (Cth), declaring the postal vote conducted by the respondents as null and void and of no effect. The respondents were required to observe the Rules of the Division by treating the postal vote as void. This decision reaffirmed the need for strict adherence to the established procedures outlined in the Divisional Rules for any review or alteration of decisions within the Division.

Orders

Orders of the court

1. Pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”), the respondents and each of them perform and observe the Rules (“the Rules”) of the Construction, Forestry, Mining and Energy Union, Construction and General Division (“the Division”) by treating as null and void and of no effect the decision of the fourteenth respondent under rule 8(xv) of the Rules on or about 9 April 2001 to conduct a postal vote of the Divisional Conference of the Division on the matter of a review sought by the first applicant of the decision of the Divisional Executive of the Division on 22 March 2001 to make certain changes to the Rules (“the postal vote”).

2. Pursuant to section 209 of the Act, the respondents and each of them perform and observe the Rules by treating the postal vote as null and void and of no effect.

Background

Background to the litigation

The application upon which those orders was made is one of a number of applications which have been made recently arising out of disputes within the Division in relation to the method and timing of elections of officers of the Division. I have already made orders restraining members of the Divisional Executive from acting upon certain resolutions which have been passed by the Divisional Executive in relation to the rules for the calling and holding of elections of officers of the Division: Kingham v Sutton [2001] FCA 328; Kingham v Sutton (No 2) [2001] FCA 400.Background A substantial part of the background and circumstances giving rise to the present application is set out in my earlier reasons for judgment. In order to put the more recent events in context, it is necessary to set out again some of the matters in the earlier reasons for judgment so far as presently relevant. The first applicant (“Mr Kingham”) is the Secretary of the Construction and General Division, Victorian Building Unions Divisional Branch, of the Construction and General Division of the Union. He and the other applicants are delegates to the Divisional Conference of the Division. The respondents are delegates to the Divisional Conference of the Division. Under the Rules of the Division (“the Divisional Rules”), the election of Divisional office bearers is held every four years at a biennial Divisional Conference. An election is due to be held at the biennial Divisional Conference later this year, after September, by virtue of the provisions of the Divisional Rules whereby nominations close fourteen days after the last Friday in September. On 7 March, Mr Sutton sent to members of the Divisional Executive ballot papers for a postal ballot for a vote on a proposal to alter the Divisional Rules so as to allow elections at the Divisional Conference to be held earlier in the year at a time fixed by the Divisional Executive. The ballot was to remain open until the close of business on 14 March. Mr Kingham wrote to Mr Sutton on 9 March objecting to the postal ballot on the basis that it was not allowed under Divisional Rule 26. On 9 March, Mr Sutton wrote to the Australian Industrial Relations Commission (“the Commission”) applying to have the rule amendments, which were the subject of the ballot, certified pursuant to s 205 of the Act. Apparently, by this time, a majority of members of the Divisional Executive in favour of the resolutions had recorded their votes. On 12 March, the Queensland, South Australian, Western Australian and Victorian Divisional Branches wrote to Mr Sutton sending resolutions, which had been passed by their respective Divisional Branch Management Committees, pursuant to Divisional Rule 10, to hold a referendum on whether the Divisional Executive of the Division should make all necessary rule amendments, so that from and including the elections due in 2001, the offices of Divisional President, Divisional Secretary and two Divisional Assistant Secretaries must be filled by a direct secret ballot of all the financial members of the Division.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J
I do not consider there is any warrant for implying into the Divisional Rules a limitation on the power of the Divisional Secretary to conduct a postal vote of delegates to the Divisional Conference to determine a decision of the Divisional Conference. Such a limitation is not required to enable the intention of the Rules to be given full effect, nor is it required to ensure that the Division functions properly having regard to the objects of the Act and the control of the Division required by the Divisional Rules.Can a review by the Divisional Conference of a decision of the Divisional Executive be conducted by postal vote? I have considered first the submission that there is an implied limitation in the Divisional Rules on the power of the Divisional Secretary to conduct a postal vote to obtain the decision of the Divisional Conference on a matter, as that was the principal submission made by the applicants. However, the issue whether a “review” by the Divisional Conference of a decision of the Divisional Executive can be conducted by a postal vote logically arises before consideration of that issue. A review of the “actions” of the Divisional Executive (contemplated by Divisional Rule 9.15) covers a much wider ground than considering and dealing with a “decision” of the Divisional Executive (as contemplated by Divisional Rule 8(xv)). There will be actions taken by the Divisional Executive which will not necessarily involve the making of a decision. The respondents submitted that the Divisional Rules did not create any right in a member of the Union to have a review of a decision of the Divisional Executive undertaken by the Divisional Conference, or to have the Divisional Conference “confirm, over‑rule or otherwise deal with” decisions of the Divisional Executive. It was submitted that a member could only request a review, and that it was then a matter for the Divisional Conference to determine whether it would review a decision of the Divisional Executive. The respondents contrasted the provisions relating to a review of the actions of the Divisional Executive with the provisions relating to appeals against decisions of the Divisional Executive: Divisional Rule 8(x)(j), and with the provisions relating to references of matters to the Divisional Conference: Divisional Rules 8(x)(f) and 8(xvi). It was said that the latter provisions created a right to have an appeal heard and a reference undertaken, whereas the former was not couched in terms of the creation of a right. There is no provision in Divisional Rule 9.15 which sets out a mechanism for the institution of a review or the right to call for a review to be undertaken. There is no provision which sets out who has the right to call for a review of the actions of the Divisional Conference, and there is no provision which sets out how a meeting of the Divisional Conference is to be called once a review has been sought. The Divisional Rules are silent on the issue of the calling of a Divisional Conference to undertake a review of the actions of the Divisional Executive. Unless the Divisional Executive refers a matter to the Divisional Conference and the Divisional Secretary calls a Special Divisional Conference: Divisional Rule 8(xvi), or a majority of Divisional Branches call for such a meeting or a petition signed by 10% of the financial members of the Division is received: Divisional Rule 8(xv), a review of the actions of the Divisional Executive by the Divisional Conference must await the biennial meeting of the Divisional Conference to be held some time after September 2001: Divisional Rule 9.5.

Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

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