Ludwig v Harrison
[1996] IRCA 97
•14 March 1996
DECISION NO: 97/96
CATCHWORDS
INDUSTRIAL LAW - Practice and procedure - interim order under s209(4) Industrial Relations Act 1988 - serious question to be tried - balance of convenience.
Industrial Relations Act 1988 s209(4)
Wishart v Henneberry (1962) 3 FLR 171
Rochfort v Ryan (1965) 8 FLR 283
WILLIAM LUDWIG v STEPHEN HARRISON & ORS
No. QI 1032 of 1996
SPENDER J
BRISBANE
14 MARCH 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. QI 1032 of 1996
)
QUEENSLAND DISTRICT REGISTRY )
BETWEEN : WILLIAM LUDWIG
Applicant
AND: STEPHEN HARRISON, CHRISTOPHER HAYES, ROBERT DAVIES, MARK WHEELER, VERNON FALCONER, BARRY COCHRAN, ARTHUR HARPER, TIM FROST, PAUL CURRIE, IAN CAMBRIDGE, FRANK CHAMBERS, GARY RYAN, TED BRISCHKE, BILL PATON, BARRY MEIKLEJOHH, KEITH BALLIN, MAURIE RUDD, RUSSELL COLLISON, GENE LIVERMORE, MICHAEL O'SHEA, STAN WALTERS, WAYNE MURRAY, GRAHAM ROBERTS, ROBERT SMITH, SAM MUSCAT, BRUCE WILSON, MARK BARNES, JOHN GLISSON, PETER TREBILCO, STEPHEN BOOTH, ROBERT SNEATH, MICHAEL HINDLE, HARRY SUGARS, GEOFF BUCKLAND, TIMOTHY DALY, IAN COLE, NORMAN McBRIDE
Respondents
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 14 MARCH 1996
MINUTES OF ORDER
On terms that Mr S. Booth be employed from the commencement of business tomorrow in the same position, and on the same terms and conditions as applied on 16 February 1996,
THE COURT ORDERS THAT:
The respondents and each of them be restrained until further order until the determination of the rule or earlier order from taking any action or step to implement or carry into effect any resolution purportedly carried at a meeting held at Labor Council Building boardroom, level 9, 377 Sussex Street, Sydney, on 15 and 16 February 1996, and, in particular, that the respondents, and each of them, be restrained from:
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(a)changing any arrangements which existed prior to the meeting relating to the authorisation to operate banking accounts of the AWU; and/or
(b)conducting investigations, or causing investigations to be conducted into the audited accounts of The Queensland Branch; and/or
(c)corresponding or otherwise communicating with any person or institution in terms that suggest or assert that any resolution purportedly carried at the meeting was and is a valid resolution of the National Executive of the AWU;
save that these orders do not apply to:
(a)the resolution concerning the AWU (former FIMEE) superannuation fund trustee which appears at page 26.5 of the minutes of that meeting;
(b)the resolution concerning the secondment of Mr Bartlem to the national office for the purpose of preparing a strategic plan designed to ensure the maintenance of the union's principal union status in the Metalliferous Mining Industry, which resolution appears at page 34 of the minutes from point 3 to point 6;
(c)the resolution concerning the auditors of the national office which appears at page 43.1 of the minutes;
(d)the resolutions concerning the grain industry and the cotton industry, which appears at page 47 of the minutes from point 5 to point 8; and
(e)the resolution concerning the nomination of Sarah Kain for a travelling fellowship, which appears at page 48.9 of those minutes.
THE COURT GRANTS liberty to apply in respect of the terms on which the above orders were made.
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 ) No. QI 1032 of 1996
)
QUEENSLAND DISTRICT REGISTRY )
BETWEEN : WILLIAM LUDWIG
Applicant
AND: STEPHEN HARRISON, CHRISTOPHER HAYES, ROBERT DAVIES, MARK WHEELER, VERNON FALCONER, BARRY COCHRAN, ARTHUR HARPER, TIM FROST, PAUL CURRIE, IAN CAMBRIDGE, FRANK CHAMBERS, GARY RYAN, TED BRISCHKE, BILL PATON, BARRY MEIKLEJOHH, KEITH BALLIN, MAURIE RUDD, RUSSELL COLLISON, GENE LIVERMORE, MICHAEL O'SHEA, STAN WALTERS, WAYNE MURRAY, GRAHAM ROBERTS, ROBERT SMITH, SAM MUSCAT, BRUCE WILSON, MARK BARNES, JOHN GLISSON, PETER TREBILCO, STEPHEN BOOTH, ROBERT SNEATH, MICHAEL HINDLE, HARRY SUGARS, GEOFF BUCKLAND, TIMOTHY DALY, IAN COLE, NORMAN McBRIDE
Respondents
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 14 MARCH 1996
REASONS FOR JUDGMENT
I am hearing now an application on notice for interlocutory relief associated with a rule to show cause which I made on 4 March 1996. Both parties agree that the questions that I have to ask before making any such order are whether there is a serious question to be tried, or serious questions to be tried and, if so, where the balance of convenience lies. I proceed on that basis, although the fact of the matter is that s209(4) of the Industrial Relations Act 1988 is the power to make any such interlocutory order and it provides:
"At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular orders intended to further the resolution within the organisation concerned of the matter the subject of the application. "
The rule to show cause of 4 March 1996 is just one of a large number of matters involving a serious factional dispute in one of Australia's important unions, and amongst the serious questions raised by those various proceedings is the method of determining the vote to be exercised by members of the national executive. The method of voting on all matters before the national executive is, by r32.3 of the registered rules of the Australian Workers' Union ('the rules'), to be by "card vote", but there is a dispute between the factions as to what that means and what its consequences are. It would be not unfair to say that there has been extensive jockeying for position and manoeuvring for union political advantage by various persons, in association with the disputes which are now before the courts and have been before this Court for some months.
I note that Mr Hampson with Mr Herbert appeared for the applicant, and that Mr Sweeney with Mr Hodgkinson appeared for 20 of the 39 named respondents, there being no appearance for the other 19 named respondents.
It is important to understand that what I am considering is in the context of that much broader factional disputation. What in fact the applicant seeks by its claims for interlocutory relief is a restoration of the position to what obtained prior to a meeting or meetings which occurred on 15 and 16 February 1996.
Had it been simply a question of whether it was competent for Mr Ludwig unilaterally to terminate a meeting of the branch executive that it seems had been properly summoned in accordance with r32.8 of the rules, it would be dubious whether any serious question was raised.
This is so, it seems to me, particularly having regard to the observations of the Commonwealth Industrial Court in Wishart v Henneberry (1962) 3 FLR 171 and in Rochfort v Ryan, again a decision of the Commonwealth Industrial Court (1965) 8 FLR 283.
In the earlier case in the reasons for judgment of the court, the court noted that a general meeting of a branch had the general control and conduct of the business of the branch and decisions of meetings bound all members of the branch, including the president of the branch. That is similar to the rule regime in the present case. The court observed at 172 that:
"There is no power to be found in the rules of the federation giving the president of a branch any power or authority to exercise dictatorial control over branch or executive committee meetings or to override the decisions or to flout the wishes of members of the branch or executive committee in meeting assembled. "
The court said at 173:
"Authority to preside over a meeting does not give dictatorial power. It merely makes the chairman, 'first among equals', and imposes on him certain duties, including taking the chair and carrying on the meeting so that the business of the body in question before the meeting is disposed of as the meeting desires, and also preserving order at the meeting. "
The court later said:
"It is true that a chairman of a public meeting, so long as the meeting desires him to be chairman, has control of the business of the meeting and, therefore, is entitled to insist on his ruling on matters of procedure and points of order, to refuse to allow his ruling to be disputed, and to refuse to accept or put a motion of dissent from his ruling on matters of procedure and points of order. If a public meeting be dissatisfied with a chairman's rulings, this situation can be overcome by the meeting passing a resolution that some other person, who is mentioned by name in the resolution, take the chair. "
An important passage for the respondents, it seems to me, is at 174 where the court said:
"Apart from provisions in the rules of a body conferring on the chairman of a meeting power to adjourn, the position in general is that it is for a meeting to decide whether or not to adjourn and that the vote of the majority of those present decides the matter, so that the chairman in leaving the chair or adjourning the meeting, without the approval of a majority, in the absence of power under the rules enabling him to adjourn of his own initiative, does not bring about an adjournment or termination of the meeting (Shaw v Thompson (1876) 3 ChD 233, at p249). The persons present or remaining after the purported adjournment may elect their own chairman and carry on the uncompleted business of the meeting (Catesby v Burnett (1916) 2 Ch325; National Swelling Society v Sykes (1894) 3 Ch159. The respondent on a number of occasions, against the wish of the meeting, has purported to adjourn it of his own initiative and without justification'. "
And at 175 the court observed:
"Where the rules of the organization are silent, the branch in meeting assembled is entitled to decide the course to be followed. "
In Rochfort v Ryan the facts were not totally dissimilar to the present, where, according to the report at 285, at a point in the meeting where a motion of dissent from the chairman's ruling had been moved:
"At this point, the President, Ryan, announced that the meeting was closed so far as he was concerned and left the meeting. Four persons left with him and fourteen persons remained at the meeting. These fourteen members continued under the chairmanship of Ronan to transact business, and amongst other things passed a resolution that Rochfort should be acting secretary-treasurer of the branch and should 'carry out the position of secretary-treasurer' until the position was filled under the provisions of r37 or alternatively under the provisions of rr35 and 36, and also a resolution that steps should be taken to declare a vacancy and to conduct an election under the provisions of r37. Some attack was made on the evidence as to the passing of these two resolutions, but we are satisfied that both resolutions were in fact passed by those remaining after the president and his four supporters left the meeting. "
At 290 the court said:
"The respondents have not satisfied us that the purported adjournment or closure of the meeting of 5th May was within the powers of the president. He had, by his refusal to carry out the rules of debate, precipitated such disorder as may have occurred and it is clear that when he left the meeting a majority of the executive remained and were able to transact further business without difficulty. In these circumstances we do not think the chairman had any power to adjourn or close the meeting and the resolution referred to above is effective to impose on the claimant the duty of performing essential tasks which would normally have been performed by the secretary treasurer."
In this particular case the position, however, is not so clear, because after Mr Ludwig had purported to terminate the meeting there appears to have been a nomination by Mr Harrison of a national Vice-President, Mr Falconer, to take the chair. There was no vote on that nomination. There was no vote that the meeting continue; no motion of dissent, contrary to what had happened in Rochfort v Ryan, from the ruling or conduct of Mr Ludwig; and no vote by the members who remained as to their view as to whether the meeting was a fresh meeting, or a continuation of the earlier one.
It was submitted that those who remained concurred and acquiesced in Mr Falconer's assumption of the chairmanship, and that one could infer that the meeting did not share the view expressed by Mr Ludwig that the meeting summoned in accordance with r38(2) of the rules had concluded.
However, in this case there are other matters which, in my view, raise, at the very least, serious questions to be tried. The first is that many of the matters considered by those who remained at the "meeting" on 15 and 16 February 1996 are clearly outside the purposes for which the meeting had been summoned under r38(2).
One is not to approach the nature of notice in any censorious way, or to regard the matter narrowly, but even viewing the matter as widely as one can there are clearly serious matters which were purported to be dealt with of which no notice had been given. Associated with that, but touching the whole conduct of the meeting, is the existence of a resolution or decision of the national executive which is expressed in postal ballot number 17. It appears in the minutes at page 16 of those minutes. That postal resolution was in the following terms:
"This meeting of National Executive decides to defer the holding of the proposed meeting of the National Executive scheduled for October 23, 1995 until such time as the calculation of voting entitlements of members of the National Executive can be properly determined by the Industrial Relations Court of Australia or unless otherwise determined by a requisition made pursuant to Rule 32(8) in which the purpose of the requisitioned meeting is particularised.
In order to ensure that the calculation of voting entitlements of members of the National Executive is clarified and determined quickly, this National Executive authorises National President, Mr. W.P. Ludwig, to make application to the Industrial Relations Court of Australia seeking a determination of voting entitlements of members of the National Executive.
Further, the National Executive requests that both Joint National Secretaries make appropriate submissions in respect to this matter to the Court detailing their competing arguments.
Until such time as the Court has clarified this matter on either an interim or final basis, members of the National Executive resolve that decisions of the National Executive shall be determined on a consensus basis or unless resolved by a clear majority vote calculated in accordance with both voting entitlement propositions advanced by the respective Joint National Secretaries."
None of the matters referred to in that decision have occurred in that there has not been a determination by the Industrial Relations Court, nor a determination by a requisition made pursuant to r32(8) in which the purpose of the requisitioned meeting is particularised.
This places, it seems to me, at the very least, a serious cloud over every resolution passed at that meeting. It is, it should be noted, contended by the respondents to the present rule that that ballot was not a lawful, valid, or effective ballot. That contention, amongst other reasons, relies on the contention of the respondents as to how the card vote is to be exercised.
I note that r32(11)(a) of the rules, dealing with postal ballots, provides:
"...The votes on such proposed resolution shall be returnable to the relevant National Secretary at such time as the National Secretary and one other National Officer shall fix. The result of such vote shall be binding and enforceable in the same manner as a decision arrived at in meeting assembled. "
There has not even been an attempted revocation of that decision, the meeting in dispute having resolved at p13 of the minutes that that postal vote, along with a number of others:
"...be deferred and be re-presented when figures showing which way people voted are presented and votes appropriately calculated. "
In the light of the litigation in place and the serious disputes as to how the resolutions of the national executive were to be determined, I find it somewhat unusual that the members of Mr Harrison's faction should seek to call a meeting for the purpose of passing, in many respects, highly contentious resolutions which, on any view, are coloured with the factional disputation then raging and being before the Court awaiting resolution.
In any event, there are very serious questions to be tried, and in my opinion, the balance of convenience requires that I make some interlocutory order. It is my intention to make orders no wider than are necessary to preserve the status quo as it existed prior to the meeting of 15 and 16 February, 1996 and in particular, it is not my intention that the ordinary process and procedures of the union be affected by the making of these orders.
I want, nonetheless, to make it plain that it is my intention to restore the position as best I can, pending the resolution of the litigation to be heard reasonably shortly by Madgwick J to the position that obtained prior to these meetings, and to avoid any jockeying for political advantage, which seems to be reflected in some of those resolutions.
I also make it plain that the reasons that I have expressed, both in the course of argument and discussion with counsel, and in the course of these reasons, are based on the material available to me and are not meant to be, and are not, in any way, determinations of those matters in a final way. The conclusions that I reach are for interlocutory purposes and simply to hold the fort until the more important questions are resolved.
The orders that I make pursuant to s209(4) of the Act are that:
The respondents and each of them be restrained until further order until the determination of the rule or earlier order from taking any action or step to implement or carry into effect any resolution purportedly carried at a meeting held at Labor Council Building boardroom, level 9, 377 Sussex Street, Sydney, on 15 and 16 February 1996, and, in particular, that the respondents, and each of them, be restrained from:
(a)changing any arrangements which existed prior to the meeting relating to the authorisation to operate banking accounts of the AWU; and/or
(b)conducting investigations, or causing investigations to be conducted into the audited accounts of The Queensland Branch; and/or
(c)corresponding or otherwise communicating with any person or institution in terms that suggest or assert that any resolution purportedly carried at the meeting was and is a valid resolution of the National Executive of the AWU;
save that these orders do not apply to:
(a)the resolution concerning the AWU (former FIMEE) superannuation fund trustee which appears at page 26.5 of the minutes of that meeting;
(b)the resolution concerning the secondment of Mr Bartlem to the national office for the purpose of preparing a strategic plan designed to ensure the maintenance of the union's principal union status in the Metalliferous Mining Industry, which resolution appears at page 34 of the minutes from point 3 to point 6;
(c)the resolution concerning the auditors of the national office which appears at page 43.1 of the minutes;
(d)the resolutions concerning the grain industry and the cotton industry, which appears at page 47 of the minutes from point 5 to point 8; and
(e)the resolution concerning the nomination of Sarah Kain for a travelling fellowship, which appears at page 48.9 of those minutes.
And I make these orders on terms that Mr S. Booth be employed from the commencement of business tomorrow in the same position, and on the same terms and conditions as applied on 16 February 1996.
In respect of that last order, I grant liberty to apply.
I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 14 March 1996
Counsel for the applicant : Mr C E K Hampson QC and Mr A K Herbert
instructed by : Sciacca and Associates
Counsel for the respondents : Mr M Sweeney and
Mr B Hodgkinson
instructed by : Mc Lellands
Date of Hearing : 14 March 1996
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