Love, James David v Steinheuer, Brian

CATCHWORDS

Industrial law - performance and observance of rules - failure of

’$

branch to hold general meeting

of members

whether

Branch

Committee validly fixed time and place	of	meetmg	-	whether
notice validly given.

Conciliation and Arbitration Act 1904, S. 141, ss. (l)(e).

JAMES DAVIn LOVE v. BRIAN STEINHEUER G ORS. E, THOMAS FRANCIS

EXGLETON

GRAY J.

QUEENSLAND

11TH DECEMBER 1985

IN THE FEDERAL COURT

OF AUSTRALIA )

)

!IUEENSLAND DISTRICT REGISTRY	)	No. Q14 of 1985
1
INDUSTRIAL DIVISION	)

JAMES DAVID LOVE

Applicant

AND:

BRIAN STEINHEUER, BRIAN

KONEFAL, DORREEN WILLIAMS,

FRANCIS MOSSOP, c

RICHARD JOHN INNIS COLLINS,

MARTIN BRAY KANE, LESLIE

PODHAM, BRUCE WILLIAM

McKENZIE, PHYLIS PAULENE

M,	MRLCOLM WILLIAMS,

JOHN VAN

LEENT, KATHERINE

JAMIESON, BARBARA KUPS

First Respondents

AND :

THOMAS FRANCIS EAGLETON

Second Respondent

JUDGE :

GRAY J.

U: llTH

DECEMBER 1985

REASONS FOR JUDGMENT

The applicant

is a

member of the Hospltal Employees'

Federatlon of Australia

("the Federation"), an organization of

employees registered pursuant to the Conciliation and Arbitratlon

Act 1904.

On 14th November 1985 he was granted a rule to show to

cause, seeking orders for the performance and observance

of the

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rules of the Federation, pursuant

to S . 141 of the Act.

The

thirteen persons described in the amended title

to the proceeding

as the first respondents are all of the members

of the branch

committee of the Queensland branch of the Federation, other than

the Branch Secretary.

The Branch

Secretary

Thomas

Eagleton,

who

described as the second respondent.

The orders sought are

follows

''(l).

That the First Respondents and the Second Respondent

and each of them perform

and observe the rules of

the Hospital Employees' Federation

Australia,

by: -

(a)

fixing the time and the

place

of a Special

General Meeting of

tQe

Queensland Branch

the

Hospital

Employees'

Federation

Australla to be	held no later	than	21st
December 1985.

(b)

fixing as the agenda for the Special General

Meeting described at paragraph

(a) hereof-

(i)	Opening of Meetmg by Chalrman

(ii)

Reading and Confirmation of Minutes

Annual

General

Meeting

and

Ordinary or Special General Meeting

(iii) Secretary's Report

(iv) Committee's

Report

( V )

Auditor's

Report

(vi) General

Business,

(c)	fixing such date for the meeting described in

- 3 -

paragraph (a) hereof

as allows seven days'

notice thereof to be given to the members of

the

Queensland

Branch

of the

Hospital

Employee6' Federation, Australia.

2 .

That

the

Second

Respondent

perform

and

observe

the

rules of the

Hospital Employees'

Federation

Australia by giving

to each member of the Queensland

Branch seven days' notice in writing

of the

date,

time, place and agenda

all Special or Ordinary

General Meetings of the Queensland Branch held prior

to 22nd December, 1985

by delivering same

to him

personally or by posting same by pre-paid post to

his address as shown

the

books

the

Federat ion.

Mr. Hall appeared on behalf

of the applicant and Mr.

Murdoch on behalf

of the respondents, except Messrs. Steinheuer,

Collins and Van Leent. Those three respondents did not appear the proceeding for the purpose of addressing the Court on the construction of its rules.

and were not represented. Mr. Hinkley appeared on behalf of the

Mr. Eagleton was elected to the position

Branch

Secretary in 1984 and held that office from 11th October 1984 until 19th March 1985 under an interim order of the Court, made

in a proceeding arising out of that election. Thereafter he held

the office in his

own right.

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There is registered in the State

of Queensland, under

the laws of that state,

association known

as the Hospital

Employees' Federation of Australia, Queensland Branch Union

Employees

( "the State Union"

) .

1984,

there were also

elections

conducted

the

State

Union.

Kenneth

Evans

was

elected as secretary of

the State Union. Many persons employed

in hospltals and similar institutions in Queensland are,

purport to

be, members

both the Federation and the State

Union.

Such persons number approximately two thousand. This was

the number on the roll of voters in the recent election for

positions on the National Executive of the Federation. Of these

persons, approximately five hundred and fifty are employed in

institutions run by the Australian Government; their terms and

conditions of employment are prescrlbed by federal awards.

The

remainder are employed in State institutions, and their terms and

conditions of employment

are prescribed by state awards.

Since Mr.

Eagleton was elected

as Branch Secretary,

there has been no general meeting of members of the branch. The

relevant rules are as follows: Rule

44(a) includes a provision

that, "The control

the Branch resides exclusively

the

members of the Branch, who shall be bound

by these Rules".

Rule 44(b) provides:

"Subject to the Rules,

or Federal Policy,

nothing shall alienate the right

of members

assembled in the General Meetlng to determine

the policy of the Branch. The decision of

properly constituted General Meetings shall be

binding on all members of the Branch."

Rule 53 provides in part:

"The President of a branch shall be the

official head of the branch and

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...

(iii) shall instruct the Secretary to call meetings

of the Branch Committee and General

or Special

Meetings of members when necessary;"

Rule 5 5 , so far as is relevant:

"The Branch Secretary shall

(a)

call and attend all meetings

of the branch and

Branch Committee unless excused and keep or cause to be kept minutes of the business transacted at such meetings;"

Rule 61 should be set out in its entirety. It

headed, "Branch General Meetings"

I' (a)

Ordinary General Meeting of the branch shall be

held in the months

of March, June and December.

(b)

The Annual General Meeting of the branch shall

be held in the month

of September.

(C)

A Special General Meeting

the branch may be

called at any time on a resolution of the

Branch Committee being carried that

such a

meeting be held.

(d)

A	Special General Meeting of the branch shall

be called by the Branch Secretary upon receipt

by hlm of a request signed by not less than

200

financial members or five

per cent of the

financial members

of the branch, whichever is

the lesser amount. Such request shall state

the business to be discussed at the meeting and

shall contain the signature and name written in

block letters of each petitioner and shall also

contain a statement that the petitioner

has

read and understood the request prior

attaching his or her signature.

(e)

Not less than one month's written notice of

time, place and agenda

of all General Meetings

shall be given to each shop-steward

of the

branch. Providlng that when a matter requires

immediate attention such lesser notlce of

Special General Meeting

as may be determined by

the Branch Committee may

be given.

Special General Meeting shall not be

competent to deal with any matter other than

the reasons set out by the petition of members

or the notification of such meeting as has been

given by the Branch Committee.

- 6 -

(g)

Any Ordinary General Meeting, Annual General Meeting, or Special General Meeting shall be

held at such time and place

as shall be

determined by the Branch Committee

of the

branch but should such Special General Meeting

be called under the provisions of paragraph

(d)

it shall be held not later than

35 days

following the receipt of the petition by the

Secretary of the branch.

(h)

No General Meeting of members of a branch shall

have power to direct

a Branch Committee or

reject or revlew

a decision of a Branch

Committee unless at least 200 financial members or flve percent of the financial members of the branch (whichever amount is the lesser) are present at the meeting”.

These

rules

have

been

operation

since

14th

May

1985.

Previously, the rules of the Federation made similar provisions

to those now found in rules 44 and 61, but did not contain those

provisions already quoted from rules 53 and 55.

No annual general meeting of the branch took place in

September 1985, or at

any time up to the present. Nor

was

any

ordinary general meeting of the branch held

in March or June of

this year. On

26th September,

Mr. Eagleton did purport to send

to sub-branch secretaries notice of

an annual general meeting to

be held at 3.00pm

on Saturday 28th September,

at Mr. Eagleton‘s

home at 2

Deebing Street, Denmark Hill,

Ipswich. Insufficient

persons attended at that time and place to make up

a quorum.

On 21st November 1985, following the grant of the rule

to show cause, Mr. Eagleton contacted Mr. Van Leent, the Branch

Presldent, and arranged wlth hlm to call

general meeting at

5.00pm on Monday 23rd December 1985,

at Mr. Eagleton’s home.

Notice

of this meeting was sent to sub-branch secretaries. It

. '

- 7 -

includes an

agenda listing the opening

of the meeting by the

chairman, the reading

and

confirmation of

the minutes of the

previous meeting, a secretarylcommittee's report, an auditor's report, and general business. The major issue in the proceeding is whether the calling of this meeting is a sufficient compllance

with the rules of the Federation to warrant

the discharge of the

rule

show

cause.

Making

up this

issue

were

several

sub-issues, namely whether the Branch Committee has fulfilled its

role in fixing the time and place

the meeting, and whether

notice of the meeting

has been given

in the proper way.

The first point

which

must be made is

to the

importance of general meetings of a branch, in the scheme

of the

rules.

The provisions of rule 44(a) and (b) are clear and place

in the hands of the members of a branch, assembled	in	general
meeting, the ultimate control of the branch, subject to the

rules.

The elaborate provisions which rule 61 makes for annual,

ordinary and special general meetings underline the importance

such meetings. They are important, and are intended to take

place.

The first argument put by counsel for the applicant was

that Ipswich was not an appropriate place for the holding of a

general meeting. Much

the evidence called was designed to

point to the concentration

members working under federal

awards in the suburbs of Brisbane, particularly the southern and western suburbs, and the distances between their workplaces and

the place of the meeting at Ipswich.

was put that members

employed under federal awards had a greater interest

in attending

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meetings of

the branch than did members employed under state

awards, so

that

meeting at the Repatriation Hospital at

Greenslopes, where the majority of federal award members

work,

was proper. "his

was said to be supported by a history of the

holding of

branch general meetings in

conference room

Greenslopes.

Further, it was said that to hold a meeting at the

Branch Secretary's home was to give him

the legal right to decide

who attended;

he could withhold or revoke the licence

any

person to attend. There was also

an attempt to show by evidence

that the house

at 2 Deebing Street, Denmark Hill, Ipswich, was

physically unsuited to the holding of

a general meeting. It was

also suggested, with

less force, that the date and time of the

proposed meeting on 23rd December was inconvenient to members.

Mr. Murdoch countered the Applicant's case

on this point

by evidence

the spread

members, or purported members,

employed under state awards and the convenience

of the

Ipswich

location

their

workplaces.

Large

numbers

are, in fact,

employed in the Ipswich area and significant numbers at Toowoomba

have easier access to Ipswich than Brisbane.

The house itself

has a

large concreted

area beneath it,

said to be capable of

seating

150

people, and arrangements have been made to hire

chairs for 23rd December.

It is important to realize that the Court does not

have

the functlon of fixing a place for a meeting or dictating to the

branch crjmmittee where a meeting will be

held.

Rule 61(g)

commits to the branch committee the function of determining

time and place for

general meeting. Provided that the branch

- 9 -

committee performs this function, the Court cannot override its

decision. If it is necessary to compel the branch committee to

make a decision on the subject, it would be improper for the

Court to require a decision in favour

of a particular time and

place.

There may

be cases in which it could be said that

purported decision on

a time and place was no decision at

all.

The fixing of a meeting for a remote place, or for a manifestly inconvenient time or date, may indicate that a branch committee

has failed

exercise its power, and the decision may be

overturned.

A particular decision may be vitiated by evidence of

bad faith. No such case has been made out	in the evidence before
me.

The fixing of the time and place for

a general meeting

of members in this Federation cannot be easy. Especially in the

Queensland branch members

are

widely spread.

A meeting held

anywhere in the south-east of the state is unlikely to be

convenient

for

members

Charters

Towers,

Townsville

and

Maryborough. Many of the institutlons

which members are

employed require them to work in shifts. It is not possible

choose a time of day or night

at which no member will be obliged

to work.

The evidence is that the majority are employed

on a day

shift, usually finishing in mid-afternoon.

5.00pm meeting is

therefore not so unreasonable as to constitute a failure by a

branch committee to exercise its functions.

On the evidence,

I am

satisfied that the choice of

Ipswich does not invalidate

a decislon as to the place of

meeting.

As I have said, Ipswich is convenient for many members

- 10 -

and more

than than other locations. Day shift workers

Greenslopes

and

other

suburban

locations

Brisbane

have

sufficient time to travel from their places of work after their

finishing times. I do not accept that preference

in the location

of a meeting should necessarily be given

to those employed under

federal awards.

The absence of

a federal award in any area may

indicate nothing more than that the federation

has

not yet

sought or obtained such an award in that area.

The

right of

membership and the rights attaching to membership are not, under

thc rules, dependent in any way on the kind of award under which

a person works.

A history of

holding meetings at a

particular

place

cannot

bind

subsequent

branch

committees.

I have the

impresssion that the applicant would like the meetings to

be held

at Greenslopes because more people who favour

his point of view

would be likely

to attend than

if the meeting

were held at

Ipswich.

This cannot be

a valid reason for compelling

a branch

committee

a particular choice. Further, the holding of

meeting at the secretary's home does not appear to give rise to

greater difficulty about the attendance of members than does the

holding of a meeting at any

private

premises.

Indeed,

the

holding of a meeting on an employer's premises may give rise to

danger that people might be barred from attending, at least

great as that which arises from the use

of a private home.

The	second argument for the applicant, which really

arose from the evidence, was that the proposed meeting of	23rd
December had not been validly convened, because the branch committee did not determine its time and place, In accordance

with rule 61(g).

In fact, the branch committee has not resolved

- 11 -

upon that meeting at all. It was fixed by

Mr. Eagleton, in

conjunction with

Mr.

Van Leent, the branch

president.

Some

reliance was placed upon

general resolution of the branch

committee, on 27th July

1985, to the effect that all general

meetings be held at 2 Deebing Street, Denmark Hill, Ipswich.

doubt whether this constituted

a determination of the place of

particular general meeting.

Even if it did, it does not overcome

the absence of any determination as to the time of the meeting.

The ascertainment of

the views of a

majority of the members

the

branch

committees

telephone

does

not

constitute

determination, and

has no basis in the rules.

Mr. Murdoch relied on rule 53(iii), arguing that it was

the job of the

branch president to decide upon the time and place

of a general meeting, this being part

of his function to instruct

the secretary to call such meetings.

not accept this

construction

rule

53(iii).

ignores

rule

61(g), which

contains a specific

requirement

that

the

branch

committee

determine the time and place

of a general meeting.

In my view,

the scheme of the rules is that the branch committee must decide

where and when

a meeting is to be held, whether it be an annual,

ordinary, or special general meeting.

It then becomes the branch

secretary's duty, under rule 55(a), to call the meeting,

i.e. to

convene it.

If he or she fails to

do 60, the branch president is

required by rule 53(iii)

to instruct him or her

to call such

meeting. This construction is indicated by the presence

of the

words "when necessary" in rule 53(iii). It

1s only necessary for

the branch president

act under that rule when the branch

secretary fails to act. It

is true that the presence of the word

- 12 -

"called" in rule 61(c) may be thought

to suggest that the word

"call" in rules 53(iii) and 55(a) is not to be construed

"convene". On a closer examination of rule 61(c), however, it is

apparent that

a special general meeting is not called

"by" a

resolution of the branch committee, but "on" such a

resolution.

Reference should

also be made to rule 61(d).

The wording is

consistent with

the

view

which

have taken, and with the

requirement that the time

and

place of

a general meeting be

decided by the branch committee.

It was argued that the branch committee is scheduled to

meet on 23rd December at 4.30pm,

immediately before the time of

the proposed general meeting, and might then ratify the branch

secretary's action in fixing

a time and place of the general

meeting.

I am by no

means sure that such ratification would be

possible.

The chain

of events which the rules require to be

carried out for a general meeting must take place in the order Contemplated. If it does not, a member receiving notice of a

meeting will not know whether such

a meeting is validly called.

A member may decide not to attend the meeting of 23rd December on

the basis that the time and place have not been determined by the

branch committee.

have such a decision put in doubt by the

possibility of ratification

the

last

minute

would

undesirable.

It is sufficient to say, at the present time, that

there has not been a meeting validly called for 23rd	December
1905.

Another question, which also arose in evidence, was

whether Mr. Eagleton had given notice

of the proposed meeting of

- 13 -

23rd December, in the manner required

by the rules.

Rule 61(e)

requires not less than one

month's

written notice of the time,

place

and

agenda,

each

shop

steward

of the

branch.

The

evidence as to whether there are shop stewards in the branch is

sketchy.

Mr.

Eagleton

said

that

shop

stewards

exist

Greenslopes

each

section

employees,

but

that no

shop

stewards exist among the members employed under state awards;

instead,

there

are

sub-branches

with

elected

officials.

The

rules of the

State

Union

apparently

provide

for

such

sub-branches.

The rules

of the federation do little more than

list among the objects

the federation the establishment

branches

and

sub-branches

throughout

Australia.

Rule

62(a)

provides :

"It shall be

a duty of the Branch Secretary

ensure

that

shop

stewards,

health

and

safety

delegates and sub-branch officials are

appointed in

accordance with the provisions

of this rule."

Rule 62 contains detailed provisions a6 to shop stewards but none

as to health and safety delegates

or sub-branch officials.

Mr.

Eagleton clamed

that no shop stewards had been elected under

rule 62, largely,

it seems, because he had not carried out his

duty under rule 62(a) of ensuring their election.

I am satisfied

by reason of Mr.

Eagleton'6 evidence that there are persons who

are or purport to be shop stewards

of the branch, even if only at

Greenslopes. Mr. Eagleton's

failure

give

notice

those

persons,

accordance

with

rule

61(e),

constltutes

another

defect in the calling

of the meeting proposed for 23rd December.

The question then arises whether

should direct the

- 14 -

calling of a general meeting, or whether I should simply trust to

the committee of management to perform its function. Mr. Murdoch

argued that I should exercise the discretion which the Court has

not to make orders under

S. 141, even if a case is made out.

relied on evidence of the failure of Mr. Van

Leent, the branch

president,

take

the

initiative.

I have

pointed

out

earlier, the role

of the branch president in the calling of

meetings is a minor one.	The primary duty falls on the branch
committee.

There is evidence

of difficulty in convening meetings of

the branch committee, because

of the refusal of the Queensland

Health Department,

the

major employer

of members under state

awards, to grant leave without

pay

for attendance to union

business, except to

officials of the State Union.

It is said

that this refusal makes it difficult to obtain

quorum at

meeting of the branch committee. This may be

reason why

few

branch committee meetings

have been held, but it is a reason that

should not continue.

The attention

of the

Health Department

should be drawn to the provisions	of S . 5(l)(e) of the Act, under
which it is an offence to dismiss	an employee, injure him in his

employment, or alter his position to

his prejudice, by reason of

the circumstance that the employee has absented himself from

work wlthout leave, for the purpose of carrylng out his duty as

an officer of the organization,

if he has applied

for leave which

has been unreasonably refused or withheld.

I have already pointed out that the rules stress the

importance of general meetmgs of branch members. For more than

- 15 -

a year, the members of the Queensland branch of the Federation

have not had

a proper opportunity to discuss the affairs of the

branch in general meetings.

They have not had the benefit of

validly convened meeting to discuss

any

action

of the branch

committee, or the last auditor’s report. They will not have such

a benefit on 23rd December, because no meeting has been validly

called for that date. There has been

a failure

to perform and

observe

the

rules

the

Federation

persons

under

obligation to perform

and

observe

those

rules.

these

circumstances, it seems to me appropriate that

I should direct

the branch committee to fix the time and place

of a

special

general meeting, with

an appropriate agenda,

to overcome the past

deficiencies so far as is possible.

I emphasize that the branch

committee must approach its task of fixing

a time and place by

having regard to all proper considerations.

This judgment must

not be taken as

a direction to the branch committee to fix

the

place of the meeting at Ipswich.	The	branch committee must
approach its task independently.

The meeting must be fixed far enough ahead to enable

proper notice to be given under rule 61(e). A time limit within which the meeting must be fixed is also appropriate, so that the

meeting takes place within

a reasonable time.

It is also appropriate that I should direct the branch secretary to give notice of the meeting,

in accordance with rule

61(e). Some

argument took place as to the appropriate course in

the

event

that

there

were

no, or few, shop

stewards. The

applicant seeks servlce of the notice personally or

by post

- 16 -

all members. "he rules do

not provide for that and it would be

an onerous obligation to place

the branch. Any gap

the

rules arises not from the rules themselves, but from

a failure to

carry them out. Where there is an express rule as to notice,

is even more difficult to imply another rule than it is to find

an implied rule in the normal case. (See Porter v. Duqmore

(1984) 3 F.C.R. 396 at page 408; and Scott v. Jess (1984) 3

F.C.R. 263 at page 282.)

All that the Court can

do is to direct the giving

notice in accordance with rule

61(e).

doubt the branch

secretary will be conscious of the need to give notice to as many

members as possible,

and other parties may also desire this end.

As to the appropriate method

of giving such wider notice, the

Court can have

no say.

The orders I make are as follows:

(1) Order that the respondents perform and observe the

rules of the Hospital Employees Federation	of
Australia by:

(a)

constituting a meeting of the branch committee

of the Queensland Branch

of the Federation at

4.30~1~

on Monday, 23rd December

1985, at 2

Deebing Street, Denmark

Hill, Ipswich;

(b)

at that meeting determining the time and place

of a special general meeting

of members of the

branch, to

be held no later than 14th February

1986.

( 2 )

Order that the respondent Thomas Francis Eagleton

- 17 -

perform and observe the rules of the Hospltal

Employees Federation of Australia giving to all

persons who are

or who purport to be shop stewards

of the Queensland branch of the Federation written

notice of the time, place and agenda of such

general meeting (which agenda

is to include the

opening of the meeting by the chairman, the reading

and confirmation of the minutes

of any previous

general meeting not already confirmed,

a report by

the branch secretary,

a report by the branch

committee, a report by the branch auditor, and

general business) not less than one month prior	to
the time of such general meeting.

(3) Order that liberty be reserved to any party to

apply on forty-eight hours written notice to each

other party.

I certlfy that tins and

the

preceding pdzes a re a true copy of the

Reasons for Judgvent heram o f hls Iionollr

Mr. Justlce G 2

[1985] FCA 646

11 Dec 1985