Ludwig v Copeland

[1995] IRCA 300

INDUSTRIAL LAW - RULES ENFORCEMENT - Officers in amalgamated organisation - Rule providing for full-time positions amended to make the same positions honorary positions - Transitional rule providing that the holders of certain offices shall hold those offices until a stipulated day - Offices described by reference to their constituent organisation before amalgamation - Validity of rule amendment.

Industrial Relations Act 1988, ss.118A(1), 196(a) and (c)

W P LUDWIG, K BALLIN, R BLEWITT, S BOOTH, C BOSWORTH, E BRISCHKE, G BUCKLAND, E J BUTLER, J CAMBRIDGE, F CHAMBERS, B COCHRAN, P CURRIE, T DALY, R DAVIES, J DUNNERY, V FALCONER, J GLISSON, A HARPER, S HARRISON, C HAYES, D HAYES, M HINDLE, G IVORY, G LIVERMORE, W LOWE, B MARTIN, F McINERNEY, B MELKLEJOHN, S MUSCAT, D O'DEA, M O'SHEA, B PATON, F PHILLIPS, D RATCLIFFE, R REDMOND, G ROBERTS, M RUDD, G RYAN, R SMITH, T STEWART, H SUGARS, S WALTERS, M WHEELER, B WILSON, T MUSCAT and AWU-FIME AMALGAMATED UNION

v

ROGER COPELAND, GEOFFREY SUTTON and NICK MINOSKI

No. VI.5026 of 1994

CORAM:    WILCOX CJ, RYAN & MOORE JJ
PLACE:    MELBOURNE
DATE:     9 JUNE 1995

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )
VICTORIA DISTRICT REGISTRY      )    No. VI.5026 OF 1994

ON APPEAL FROM A JUDGE
      OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:W P LUDWIG, K BALLIN, R BLEWITT, S BOOTH, C BOSWORTH, E BRISCHKE, G BUCKLAND, E J BUTLER, J CAMBRIDGE, F CHAMBERS, B COCHRAN, P CURRIE, T DALY, R DAVIES, J DUNNERY, V FALCONER, J GLISSON, A HARPER, S HARRISON, C HAYES, D HAYES, M HINDLE, G IVORY, G LIVERMORE, W LOWE, B MARTIN, F McINERNEY, B MELKLEJOHN, S MUSCAT, D O'DEA, M O'SHEA, B PATON, F PHILLIPS, D RATCLIFFE, R REDMOND, G ROBERTS, M RUDD, G RYAN, R SMITH, T STEWART, H SUGARS, S WALTERS, M WHEELER, B WILSON, T MUSCAT and AWU-FIME AMALGAMATED UNION

Appellants

AND:ROGER COPELAND,

GEOFFREY SUTTON and

NICK MINOSKI

Respondents

CORAM:    WILCOX CJ, RYAN & MOORE JJ
PLACE:    MELBOURNE
DATE:     9 JUNE 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )
VICTORIA DISTRICT REGISTRY      )    No. VI.5026 OF 1994

ON APPEAL FROM A JUDGE
      OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:W P LUDWIG, K BALLIN, R BLEWITT, S BOOTH, C BOSWORTH, E BRISCHKE, G BUCKLAND, E J BUTLER, J CAMBRIDGE, F CHAMBERS, B COCHRAN, P CURRIE, T DALY, R DAVIES, J DUNNERY, V FALCONER, J GLISSON, A HARPER, S HARRISON, C HAYES, D HAYES, M HINDLE, G IVORY, G LIVERMORE, W LOWE, B MARTIN, F McINERNEY, B MELKLEJOHN, S MUSCAT, D O'DEA, M O'SHEA, B PATON, F PHILLIPS, D RATCLIFFE, R REDMOND, G ROBERTS, M RUDD, G RYAN, R SMITH, T STEWART, H SUGARS, S WALTERS, M WHEELER, B WILSON, T MUSCAT and AWU-FIME AMALGAMATED UNION

Appellants

AND:ROGER COPELAND,

GEOFFREY SUTTON and

NICK MINOSKI

Respondents

CORAM:    WILCOX CJ, RYAN & MOORE JJ
PLACE:    MELBOURNE
DATE:     9 JUNE 1995

EXTEMPORE REASONS FOR JUDGMENT

THE  COURT:  This is an appeal against a decision of Keely J granting relief to three members of a registered organisation, AWU-FIME, in respect of a resolution of the organisation's national executive dated 19 November 1993.  The appellants are officers of the organisation and AWU-FIME itself.  The first respondent, Roger Copeland, was employed as Victorian sub-branch secretary of the Building Construction and Joinery Branch of the Federation of Industrial Manufacturing and Engineering Employees, prior to its amalgamation with the Australian Workers Union on 1 November 1993.  The second and third respondents, Geoffrey Sutton and Nick Menoski were organisers within that sub-branch.  All three respondents had been elected to their offices and held them on a full-time paid basis.

The rules of the newly amalgamated union, AWU-FIME, contained a rule, rule 38, dealing with its Branch and Divisional organisation.  Sub-rule 5 dealt with the organisation of each Branch.  It included paragraph (p) relating to the Building Construction and Joinery Branch.  That paragraph included the following words:

"There shall be a Victorian sub-branch executive comprising the following:  one sub-branch president (honorary); one sub-branch secretary (full-time); one sub-branch assistant secretary (honorary); three sub-branch organisers (full time); five sub-branch committee members (honorary)."

The second named office was that occupied by Mr Copeland.  Mr Sutton and Mr Menoski occupied two of the three fourth named positions.  It will be noted that both the second and fourth named positions were described as full time.  In that respect they stood in contrast to the other positions listed in that part of the paragraph. 

The rules also contained a provision, rule 33(1)(q), empowering the National Executive to amend the organisation's rules when National Conference was not sitting; subject to some limitations, the detail of which is not presently relevant. 

The rules also included rule 80, a rule designed to cover the position in the amalgamated union of persons holding office in the amalgamating organisations during a transitional period intended to expire on 30 June 1997.  Rule 80 included the following:

"(1)this rule shall prevail over any conflicting provision and any other rule during the period from amalgamation day until 30 June 1997;

(2)for the purposes of this rule the expression 'amalgamation day' means the day fixed under sub-section 2(5)(iii)(q)(2) of the Industrial Relations Act (1988) in relation to the amalgamation;

(3)for the purposes of this rule AWU means the Australian Workers Union and FIME means the Federation of Industrial Manufacturing and Engineering Employees;

(4) ...

(5)the holders of office in the AWU and the FIME shall, on amalgamation day, assume an office in the union in accordance with the following schedule:  (a) the organisation in which the office is held as at the day before amalgamation day is set out in column 1; (b) the office existing as at the day before amalgamation day as set out in column 2; (c) the office in the union that will be occupied and from amalgamation day is set out in column 3.  Should any dispute arise as to the performance of any duty amongst those empowered to perform a duty it should be resolved by agreement and failing agreement by decision of the branch executive in the case of branch offices or national executive in the case of national offices; (d) the term of office of the office set out in column 3 shall expire on the date set out in column 4; (e) the term of office of those members elected to fill the offices which expire on 30 June 1995 as set out in column 4 shall be for a period of 2 years until all elections for offices are synchronised in accordance with rules 63 and 64.

(6) ..."

The schedule referred to in sub-rule (5) of rule 80 comprised a lengthy list of office bearers, some of them National office bearers and some holding Branch positions.  They included, under the heading, "Building, Construction and Joinery Branch" identification in column 1, that is the organisation in which the office was held before amalgamation day, by the acronym "FIME".  In column 2, the column designed to identify the office held before amalgamation day, the words:  "Each existing branch and sub-branch office" appear.  In column 3, showing the office in the amalgamated union to be occupied after amalgamation day, the words were:  "All branch and sub-branch offices retain their office in AWU."  Column 4 showed the duration of a term of office to be until 30 June 1997.

The resolution passed by the National Executive on November 1993 was in the following terms:

"As National Conference is not sitting this National Executive deems it necessary and expedient to amend the rules of the union by deleting sub-clause (p) of rule 38(5) and inserting in lieu thereof the following new sub-clause (p). ..."

Under the heading, "Building, Construction and Joinery Branch", there was a list of Branch executive positions.  They included the following:

"There shall be a Victorian branch sub-branch executive comprising the following:  one sub-branch president (honorary), one sub-branch secretary (honorary), one sub-branch assistant secretary (honorary), three sub-branch organisers (honorary), five sub-branch committee men (honorary)."

It will be noted that the offices held by the respondents were intended to be converted from full-time positions to honorary positions.

Following the passage of this resolution, the respondents were informed that, although they continued to hold their offices, they would in future do so on an honorary basis; not on a full time paid basis, as before.

Keely J dealt with a number of issues.  One involved the question whether the National Executive resolution was intended to have immediate effect, so as to deprive incumbent office holders of their positions and/or emoluments of office.  Another question was whether the amendment of the rules effected by the National Executive imposed obligations or restrictions that were oppressive, unreasonable or unjust.  We do not find it necessary to consider those matters.  It seems to us clear that the resolution was beyond the power of the National Executive and that the orders made by his Honour were justified, even if only on that basis.

Mr M Sweeney SC, counsel for the appellants, submitted that the resolution was within power.  He accepted that, having regard to sub-rule 1 of rule 80, it would not have been competent for the National Executive to amend the rules in such a manner as to abolish the offices to which the respondents had been elected.  But he submitted that there was a distinction between abolishing offices and changing their nature, or the capacity in which they were held, from paid full-time to honorary positions.  He pointed out that the schedule to rule 80 did not identify the relevant offices as full-time offices.  He contrasted the position relating to some of the national offices.

We cannot accept this argument.  While it is true that the Schedule does not use the words "full-time", it describes the relevant offices in terms of the corresponding offices in FIME prior to amalgamation.  The office each respondent held prior to amalgamation was a full-time paid office.  To change the office held by that person to an honorary position is to change fundamentally the nature of that office and the capacity in which it is held.  In terms of the contribution that the office-bearer may make to the work of an organisation there is, of course, a major difference between a full-time paid office and an honorary office held by someone who needs to earn a living in another occupation.  This is a distinction that would have been apparent to the respondents when they stood for election, to the electors at that time and to the members of the amalgamating organisations when they accepted the amalgamation proposal.

The appeal will be dismissed.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:         9 June 1995

APPEARANCES

Counsel for the Appellant:     M Sweeney SC

Solicitor for the Appellant:        McClellands

Counsel for the Respondent:         M Bromberg

Solicitor for the Respondent:       Howie & Maher

Date of hearing:  9 June 1995