Mapstone, David John Garland v William Thorton

[1982] FCA 254

Re: DAVID JOHN GARLAND MAPSTONE; BERNADETTE ANNE CALLAGHAN; GABRIELLE MARY
CRAWFORD and CHRISTOPHER WOODS
And: WILLIAM THORNTON; JOAN RIORDAN; MAXWELL RONALD MULLER; JOHN PETER MAYNES;
LEONARD LUKE DOBBY and BRIAN FRANCIS TOOLEY
Q8 of 1982
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald, J.

CATCHWORDS

INDUSTRIAL LAW - Order to obey rules of Union - Newly elected Federal Councillors entitled to participate in Federal Council meeting - failure of outgoing office-bearers to certify such entitlement - such failure merely a matter of machinery only and not a condition precedent to entitlement - order that chairman admit applicants to meeting and that outgoing office-bearers withdraw and desist from attendance at meeting.

Conciliation and Arbitration Act 1904, s.141

HEARING

BRISBANE

#DATE 22:11:1982

ORDER

UPON THE UNDERTAKING of the Applicants herein by their counsel to file affidavits by each applicant deposing that each is a member of the Federated Clerks Union of Australia;

AND UPON THE UNDERTAKING of the Applicants herein by their counsel to file an affidavit or affidavits deposing that each of the Respondents, Leonard Luke DOBBY and Brian Francis TOOLEY was served on Saturday 20 November 1982 with a copy of the order nisi pronounced in these proceedings on 19 November 1982;

THE COURT ORDERS THAT:

1. Pursuant to Section 141 of the Conciliation and Arbitration Act 1904, until further order,

(a) the respondent John Peter MAYNES admit the applicants and each of them to the meeting of the Federal Council of the Federated Clerks Union of Australia presently being conducted at Coffs Harbour in the State of New South Wales; and

(b) the respondents Leonard Luke DOBBEY, Brian Francis TOOLEY, Joan RIORDAN, and Maxwell Ronald MULLER withdraw and desist from attendance as Federal Councillors representing the Central and Southern Queensland Branch of the Federated Clerks Union of Australia at the said meeting of the Federal Council.

2. Each party have liberty to apply to have the matter restored for further hearing upon the giving of notice to the other party.

3. This application be adjourned for further directions to 9:30 am. on Monday 6 December 1982 in the State Law Courts Building, George Street, Brisbane.

JUDGE1

This is an application under s.141 of the Conciliation and Arbitration Act, 1904 ("the Act"). Basically, all that is involved is a question of construction of Union rules. There is an element of artificiality in attempting to ascertain what was intended, since it is extremely unlikely that those responsible for the rules which fall to be interpreted ever turned their minds to the present problem at all.

The Federated Clerks Union of Australia ("the Union") is a registered organisation of employees under the Act. The applicants are members of the Union. Each of the applicants has recently been elected a member of the Union's Federal Council to represent the Central and Southern Queensland Branch of the Union ("the Branch"). The Federal Council, which, under the Union's Federal Rules, has the supreme control of the union except in matters in respect of which a ballot is required, is currently meeting at Coffs Harbour in New South Wales. The meeting commenced last Wednesday morning, 17 November 1982, and is scheduled to conclude this Thursday, 25 November 1982.

Each branch of the Union is entitled to representation on the Federal Council. The number of Federal Councillors elected by each branch increases in accordance with the size of the branch up to a maximum of seven: Rule 16(1). Sub-rule (3) of the same rule provides:

"(3) Each Member of Federal Council to be elected by a Branch under this Rule shall be elected by direct vote of all financial members of the Branch. Voting shall be secret and shall be by postal ballot (as defined by the Conciliation and Arbitration Act). Nominations for the position shall be called at intervals not exceeding 3 years. Subject to these requirements each such member of Federal Council shall be elected at such time and in such manner as the Branch Rules provide and the member shall hold office until his successor is elected."

Further provision is made in Federal Branch Rule 12, sub-rule (2)8 paragraphs (a), (b)(ii) and (c), which are as follows:

"12. BRANCHES . . .

(2) (a) Subject to these Rules and to the approval of the Federal Executive, a Branch shall have power to make Rules from time to time for its own internal management. . . .

(b) (ii) Such Rules shall also provide for the periodic election of the Members of Federal Council entitled to be elected by the Branch, by a secret postal ballot of the financial members of the Branch.

(c) Except where otherwise provided in these Rules the term of office of any of the above persons, with the exception of those persons holding the offices of Branch Secretary and Assistant Secretary, shall not exceed three years, but those persons retiring shall be eligible for re-election, and subject to the Rules shall hold office until their successors are elected."

The relevant Branch Rule dealing with the election of Federal Councillors is Rule 38 which, in turn, applies (with necessary adaptations) Branch Rules 21, 23 and 24, which contain detailed provision with respect to the time and manner of elections. There is no present need to take particular notice of any of those provisions except Branch Rule 38(d) which provides:

"(d) the Branch shall not later than fourteen (14) days after an election has been held in respect of any member/members of Federal Council forward to the Federal Secretary a certificate signed by the Branch President and Branch Secretary or such person or persons authorised to act in their stead in accordance with the Rules of the Branch, certifying that such election/ elections has been held and advising the names of such Councillor or Councillors; at which time such federal councillor/councillors shall assume office as members of Federal Council for the Central and Southern Queensland Branch."

Federal Rule 20, like Branch Rule 38(d) provides for a certificate to the Federal Secretary in respect of the election of Federal Councillors. It states:

"20. FEDERAL COUNCIL Credentials. Each Branch shall, not later than fourteen (14) days after a vacancy has arisen or an election been held in respect of any member of Federal Council, forward to the Federal Secretary a certificate signed by the President and Secretary of the Branch, or by persons authorised to act in their stead in accordance with the Rules of the Branch, certifying that a vacancy has occurred, the member has been recalled or elected as the case may be."

This matter falls to be determined at this point on the basis that, to date, no certificate in respect of the recent elections of Federal Councillors to represent the Branch has been forwarded to the Federal Secretary of the Union. The poll in respect of that election was declared by the Returning Officer on the afternoon of the day in which the current Federal Council meeting commenced, 17 November 1982. The successful candidates for positions as Federal Councillors to represent the Branch included the present applicants. The unsuccessful candidates included the respondents, Leonard Luke Dobby, Brian Francis Tooley, Joan Riordan, and Maxwell Ronald Muller, each of whom was a serving Federal Councillor representing the Branch. It may reasonably be accepted for present purposes that, prior to the declaration of the poll in respect of the recent election on Wednesday afternoon last, the credentials of those respondents had that morning been accepted by the Federal Council meeting in accordance with Federal Rule 19 which provides that the reading and acceptance or rejection of credentials is to be the first item of business at any Federal Council meeting.

On the morning of Thursday 18 November 1982, the applicants sought to attend and participate in the Federal Council meeting at Coffs Harbour but were excluded by the respondent John Peter Maynes, who is the Union's Federal President and who, as such, presides at Federal Council meetings: Federal Rule 23(4).

The present proceedings were commenced on Friday last, 19 November 1982. Late that afternoon, I made a Rule Nisi, ex parte. The respondents were all served during the week-end. Messrs Dobby and Tooley, who were served on Saturday afternoon, have not appeared. The other respondents have appeared by their solicitor, Mr Macken, to resist the applicants' present claim for interim relief pursuant to sub-s. 141(2) of the Act. I am satisfied that Messrs Dobby and Tooley have had an opportunity of being heard: sub-s. 141(1H). I accordingly propose to consider the substance of the matter.

The urgency is obvious. The answer to the question whether it is the newly elected Federal Councillors or their predecessors who are entitled to participate in the current Federal Council meeting not only affects the rights of the rival claimants but may affect the validity of the meeting and decisions there made. The orders sought by the applicants are as follows:

"(a) An Order under Section 141 of the Conciliation and Arbitration Act 1904 that WILLIAM THORNTON, JOAN RIORDAN and MAXWELL RONALD MULLER observe rules 16 and 20 of the Federated Clerks Union of Australia and sign a certificate that each of the applicants has been elected a Federal Councillor of the Federated Clerks Union of Australia from the 17th day of November, 1982;

(b) An Order under Section 141 of the Conciliation and Arbitration Act 1904 that the respondent JOHN PETER MAYNES observe rule 16 of the Federated Clerks Union of Australia and admit them to the meeting of the aforesaid Federal Council being conducted at Coffs Harbour, New South Wales between the 17th day of November, 1982 and the 25th day of November 1982

(c) An Order under Section 141 of the Conciliation and Arbitration Act 1904 that the respondents Leonard Luke Dobbey, Brian Francis Tooley, Joan Riordan, and Maxwell Ronald Muller withdraw and desist from attendance as Federal Councillors at the Federal Council Meeting now being held at Coffs Harbour."

Further explanation is required of the circumstances which give rise to the application for an order in terms of paragraph (a). In the election recently concluded, the applicant Mapstone was elected Branch President, the applicant Callaghan was elected Branch Secretary, and the applicant Woods was elected Assistant Branch Secretary. The serving Branch President was the respondent Thornton, the serving Branch Secretary was the respondent Riordan, and the serving Assistant Branch Secretary was the respondent Muller. The broad effect of Branch Rule 27, "Tenure Of Office", is that while other members of the Branch Council generally hold office "until their successors are declared elected by the Returning Officer", Branch Officers (Branch President, Branch Vice-President, Branch Secretary and Assistant Branch-Secretary - Rule 25) hold office "until the Returning Officer's Report has been adopted by the Branch Council". There is no evidence before me whether or not that has been done. However, Mr Mapstone has sworn that it has not been possible to obtain certificates signed by the respondents Riordan or Muller and that Mr Thornton cannot be contacted. I do not think that it is necessary to the outcome of the present application for interim relief that an order be made in terms of paragraph (a) and I think that, in the circumstances, it is inappropriate to do so.

I have, however, attained the degree of satisfaction which I consider appropriate to justify interim orders in terms of paragraphs (b) and (c), which, although only interim, will substantially determine the rights of the rival claimants to attend and participate in the current Federal Council meeting.

I am satisfied that, although credentials are important, they are a matter of machinery only, and do not form a condition precedent to the right of a duly elected Federal Councillor to act and be recognized as such. For example, an improper certification or refusal of certification could not, in my opinion, preclude a duly elected Federal Councillor from exercising rights on behalf of the Branch which he was elected to represent. To hold that duly elected Federal Councillors are entitled to act and be recognized as such is to give effect to the democratic rule of the Branch members and the Federal Rules may readily be interpreted, in my opinion, to reflect that intention.

If, as I think it should be, the possibility be left out of account that, when an election has been held but the newly elected Federal Councillors have not been credentialled, neither the former Federal Councillors nor the newly elected Federal Councillors are entitled to participate in a Federal Council Meeting, so that a Branch is in the interregnum effectively disenfranchised, there are only two alternatives. Either the former, duly credentialled, Federal Councillors remain in office for the purpose of the Federal Council Meeting or those who have been newly elected are entitled to participate although they lack credentials.

Both Federal Rule 12(2) (c) and Federal Rule 16(3) are expressly inconsistent with the former proposition. On the other hand, there is nothing inconsistent with the latter proposition except Branch Rule 38 (d) which purports to extend and, in my opinion, is inconsistent with the Federal Rules. As such, it is not authorised by the Federal Rules: see Federal Rule 12(2) (a) (which is introduced by the phrase "Subject to these Rules") and (b) (ii) and (c), and Federal Rule 16.

The respondents sought to support their construction of the Federal Rules by reference to the problems which might result in relation to the election of Federal Officers of the Union otherwise. Under Federal Rule 19, unless a Federal Council meeting otherwise resolves, the election of officers is the second item of business at the meeting. Under Federal Rules 23 and following, Federal Officers must be elected by and from the members of Federal Council. Under Federal Rule 22 nominations are called in the month before each biennial Federal Council meeting, and close at noon on the opening day of the meeting; ballot papers must be despatched by midnight on that day; and the ballot closes at noon on the closing day of the meeting or ten days after the despatch of ballot papers whichever is the later. There are, as the solicitor for the respondents pointed out, obvious difficulties in the implementation of that process if the identity of the Federal Councillors who represent a Branch can alter after credentials have been read and accepted or rejected at the commencement of the Federal Council meeting. He sought to relate those difficulties to the present case, involving an election without subsequent certification. However, substantially if not precisely the same difficulties can occur if, after a Federal Council meeting has commenced, the Federal Secretary receives a certificate concerning a change in the membership of the Federal Council. It is important to note that it was the respondents' case that entitlement to participate in a Federal Council meeting was dependent upon credentials. It was not the respondents' case that entitlement to participate in a Federal Council meeting is dependent upon the existence of credentials at the commencement of the meeting. There is nothing in the Federal or the Branch Rules, including Branch Rule 38, which would support the latter view. Thus, the difficulties pointed to by the respondents throw little light on the present problem. Any such difficulty would stem from any alteration in the composition of the Federal Council after a particular stage in its proceedings, irrespective of the reason for, or circumstances surrounding, the change.

In the end, therefore, I have been unable to discern anything in the Federal Rules, or anything in the Branch Rules except Rule 38(d), which seems to me inconsistent with the Federal Rules, which justifies the conclusion that Federal Councillors remain in office after their successors have been elected or that persons who have been duly elected do not become Federal Councillors until their election has been certified to the Union's Federal Secretary.

I therefore make interim orders in terms of paragraphs (a) and (b) above.