Marko v Fegan

[2000] FCA 1016

FEDERAL COURT OF AUSTRALIA

Marko v Fegan [2000] FCA 1016

INDUSTRIAL LAW – construction of rules of an organisation – whether officer is to take office upon election when there is a holding over of office of the predecessor – whether rules contravene s 199(1)(a) of the Workplace Relations Act 1996 (Cth) when they operate to enable the holding over of office beyond four years

Workplace Relations Act 1996 (Cth) ss 199(1)(a), 209, 215, 215(1)(b)(i), 218 and 255
Conciliation and Arbitration Act 1904 (Cth) s 133(1)(db)

Allshorn v Stapleton (1984) 4 FCR 236 - applied
McClure v Mitchell (1974) 24 FLR 115 - cited
Hansch v Transport Union Workers of Australia [2000] FCA 473 - cited

MARKO v FEGAN AND ORS
V 455 of 2000

JUDGE:         MERKEL J
PLACE:         MELBOURNE
DATE:           2 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 455 OF 2000

BETWEEN:

ZORA MARKO
APPLICANT

AND:

PAULINE FEGAN
FIRST RESPONDENT

ROB McCUBBIN
SECOND RESPONDENT

VERONICA FAHEY
THIRD RESPONDENT

MARIA GORGAL
FOURTH RESPONDENT

NADA VUJASIN
FIFTH RESPONDENT

DAVID BRAY
SIXTH RESPONDENT

SONIA McCORMACK
SEVENETH RESPONDENT

PETER ELLISON
EIGHTH RESPONDENT

DENISE GREGOR
NINTH RESPONDENT

JOANNE BORCI
TENTH RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

2 AUGUST 2000

WHERE MADE:

MELBOURNE

THE COURT:

1.   Declares that under the Rules of the Health Services Union of Australia the applicant is to take office as the Branch Secretary of the Victoria No 1 Branch of the Union as from the completion of the Annual General Meeting of the Branch due to be held in September 2000.

2.   Directs that within 7 days the parties file and exchange Minutes of Orders to give effect to these reasons for judgment.

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 455 of 2000

BETWEEN:

ZORA MARKO
APPLICANT

AND:

PAULINE FEGAN
FIRST RESPONDENT

ROB McCUBBIN
SECOND RESPONDENT

VERONICA FAHEY
THIRD RESPONDENT

MARIA GORGAL
FOURTH RESPONDENT

NADA VUJASIN
FIFTH RESPONDENT

DAVID BRAY
SIXTH RESPONDENT

SONIA McCORMACK
SEVENETH RESPONDENT

PETER ELLISON
EIGHTH RESPONDENT

DENISE GREGOR
NINTH RESPONDENT

JOANNE BORCI
TENTH RESPONDENT

JUDGE:

MERKEL J

DATE:

2 AUGUST 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The Court has two applications before it. The first is an application pursuant to s 218 of the Workplace Relations Act 1996 (Cth) (“the Act”) for an inquiry relating to an election. The second is an application for orders, pursuant to s 209 of the Act, that the Rules of the Health Services Union of Australia (“the Union”) be performed and observed.

2. Both applications arise out of the election of the applicant, on 14 June 2000, as Branch Secretary of the Victoria No 1 Branch of the Union.  There is no dispute about the validity of the election but the parties are in dispute as to the date upon which the applicant is to take office as Branch Secretary under the Rules of the Union.  That issue is governed by r 52(b) which provides:

   “Tenure of Office
   All officers of a branch and ordinary members of a Branch Committee shall take office from the completion of the Annual General Meeting of the branch in the year in which they are elected and shall hold office for a period of four years or until successors thereto have been elected and taken office.”

3. The respondents, being the Branch Committee and the Union, contend that the applicant is to take office upon the completion of this year’s Annual General Meeting of the Branch, which is required by r 61(b) to be held in the month of September.  The applicant contends that as her predecessor as Branch Secretary, Ms Armstrong, was elected as Branch Secretary prior to the Annual General Meeting in 1995, and therefore took office after the Annual General Meeting in September 1995, her term of four years came to an end in September 1999.  Consequently, since that date, the office of Branch Secretary has been held by its occupants under a “holding over” which, so it is said, is required to be brought to an end as soon as the Branch Secretary’s successor has been elected.  As the applicant was elected on 14 June 2000, she claims that she was entitled to take office as from that date so as to bring the “holding over” to an end.

4. The resolution of the dispute is a matter of some importance to the conduct of the business of the Branch as the Branch Committee and the Union have not accepted that the applicant has taken office as Branch Secretary and have not permitted her to exercise any of the functions of Branch Secretary, including calling Branch Committee meetings and attending them in that capacity. If the applicant has been wrongly excluded from acting as Branch Secretary a question would arise as to the validity of resolutions passed by the Branch Committee since 14 June 2000. That issue, which is raised by the applicant in her application pursuant to s 209 of the Act for the performance and observance of the Rules, would require consideration of the applicability of s 255 of the Act, which sets out the circumstances in which certain invalid acts done in good faith may be validated. On the other hand, if the applicant is only entitled to take office after the holding of the Annual General Meeting in September 2000, then it would follow that she is not entitled to the relief she is ultimately seeking in her two applications.

5. The applicant applied for interim relief to enable her to take office forthwith.  However, when it became clear that the primary issue in dispute between the parties related to the construction of r 52(b), I made directions for a final hearing of that issue.

   Background

6. The relevant facts may be briefly stated. Ms Armstrong, the previous Branch Secretary, was elected during 1995 and took office as Branch Secretary after the Annual General Meeting in September 1995. On 12 February 1999, Ms Armstrong resigned. Ms Fegan was duly appointed to fill the casual vacancy for the unexpired portion of Ms Armstrong’s term of office, that is, until September 1999. On 21 June 2000 Ms Fegan resigned as Branch Secretary and Mr McCubbin was appointed as Branch Secretary to fill the casual vacancy created by Ms Fegan’s resignation. Section 200(3) of the Act provided that, in those circumstances, the appointments were to be treated as an election to office under the Rules.

7. The Branch Secretary was the Chief Executive Officer of the Branch and, subject to the Rules, had charge of the general conduct, administration and business of the Branch (r 55).  Rule 55 also stated that the Branch Secretary was required to call and attend all meetings of the Branch and Branch Committee, unless excused.

8. Rule 52 provided that all officers of the Branch, which included the Branch Secretary (r 48), were to be elected in accordance with the provisions of that rule.  The rule stated that the opening date for nominations was to be 1 June in the year of an election and the closing date was to be the last Friday in June at 5.00 pm (r 52(e)(i)).  If more nominations were received than there were vacancies for a position then the closing of the ballot should have been not later than 15 August (r 52(e)(viii)).  Finally, the Returning Officer was required to report the result of the election to the next Annual General Meeting of the Branch (r 52(e)(xvi)) which was required to be held in the month of September (r 61(b)).  Thus, r 52 provides for an electoral process which is to commence in June and be completed in August so as to enable the report of the outcome of the election at the Annual General Meeting in September.  The elected officers are then to take office from the completion of that meeting (r 52(b)).  In the usual course the officers of the Branch, including the Branch Secretary, would then hold office for a period of four years commencing at the conclusion of the Annual General Meeting of the Branch in the year in which they are elected.

9. The problems that have given rise to the present matter arose because the election of the Branch Secretary was not held during 1999 in accordance with the timetable provided for in r 52. As a result of a number of problems concerning the Electoral Roll of the Branch, proceedings were commenced in the Court for an order for an election inquiry. As a consequence, on 20 May 1999 the Returning Officer, acting pursuant to s 215(1)(b)(i) of the Act, advised the Branch Secretary that he had decided to postpone the election until the proceedings had been concluded. On 14 March 2000 the Court terminated the proceedings in so far as they were relevant to the election of the Branch Secretary. On 24 March 2000 nominations for the Branch Secretary were called for and on 26 April 2000 the nominations closed. The ballot for the election opened on 24 May 2000 and closed on 14 June 2000 when the applicant was declared elected.

10. The Returning Officer was requested by the applicant to make a direction, under s 215 of the Act, that the applicant take office upon her election rather than at the conclusion of the Annual General Meeting in September 2000. The Returning Officer declined to make the direction on the basis that he was functus officio in relation to the election.

11. The applicant claims that, as from her election on 14 June 2000, she has been wrongly excluded from her office as Branch Secretary.  Counsel for the Union and the Branch Committee dispute that contention, claiming that the Rules provide that the applicant is only to take office as from the conclusion of the Annual General Meeting, which is to be held in September 2000.

12. Counsel appearing for the Returning Officer contended that there was no proper basis for an election inquiry as there were no reasonable grounds for contending that there had been an irregularity in relation to the election.  The Returning Officer did not make any submissions concerning the construction of r 52(b).

    Rule 52(b)

13. Although the evidence on the origin of r 52(b) in its present form was not altogether clear, it seems likely, and I will assume, that the rule was intended to give effect to the statutory predecessor to s 199(1)(a) of the Act. Section 199(1)(a) provides that the rules of an organisation shall provide terms of office for officers in the organisation

    “of no longer than 4 years without re-election”

14. Predecessors of the section, in a similar form, have applied to registered organisations since 1976 (see s 133(1)(db) of the Conciliation and Arbitration Act 1904 (Cth)). Counsel for the applicant contended that, consistently with those sections, the Rules should be construed in a manner that:

    ·    does not entitle an officer to hold a term of office in excess of four years; and

    ·    does not permit a holding over of office after four years.

15. Accordingly, the applicant submitted that, to comply with s 199(1)(a), the election of the successor referred to in r 52(b) should, by implication, be taken to be limited to a reference to the election of a successor within, but not after, the four year period. If the rule operates in that manner it will ensure that a Branch Secretary will not hold office for any more than four years, but it will also mean that there can be no holding over of office even if, as occurred in the present case, the successor had not been elected when the previous term of office expired. The alternative submission was that the rule permitted a “holding over” beyond four years but the “holding over” should be for no longer than is necessary to ensure there is no interregnum. Thus, it was submitted that when the applicant was elected as “the successor” after the four year term of the current Branch Secretary had expired, she was to take office immediately upon her election.

16. There are fundamental difficulties confronting the construction contended for by the applicant. The statutory predecessor to s 199(1)(a) has not been construed by the Court as requiring that the rules must invariably operate so as to limit the term of office to four years.  Rather, the section has been treated as being concerned with the form of the rules of an organisation, not with possible but unintended results of their application or non application: see Allshorn v Stapleton (1984) 4 FCR 236 at 238.

17. Allshorn was concerned with whether a union rule, which provided for the holding of office for a period of three years with a proviso that the incumbent officer shall be deemed to remain in office until the declaration of the ballot, infringed s 133(1)(db) of the Conciliation and Arbitration Act 1904 (Cth). Section 133(1)(db) provided that the rules of an organisation shall not permit a person to be elected to hold an office within the organisation for a period exceeding four years without being re-elected. Woodward and Northrop JJ (with whom Smithers ACJ agreed) said at 238:

    “In our opinion it cannot be said that r 18 contravenes s 133(1)(db) of the Act. That paragraph is concerned with the form of the rules of an organisation, not with possible but unintended results of their application or, in this case, their non-application. The requirement of the paragraph is that the rules of the organisation do not permit a person to be elected to hold office for a period exceeding four years without being re-elected. Rule 18 clearly provides for the federal officers to be elected for a period of three years. The proviso that the retiring office holder continues in office until his successor has been elected obviously is sensible to assure that, if an election is delayed, there is no interregnum. Such a provision is in keeping with both the letter and the spirit of the Act, particularly since the prescribed period for holding office under r 18 is three years only. We agree with the learned trial judge when he said:

    ‘…the inclusion of the ‘holding over’ provision does not mean that the person is ‘elected’ to hold office for that additional (‘holding over’) period of uncertain duration.’

    For these reasons r 18 is not, in our view, contrary to s 133(1)(db) of the Act and the learned trial judge was correct in so finding.”

18. The decision in Allshorn suggests that r 52 can comply with s 199(1)(a) even if in some situations an officer may have a term of office in excess of four years. As was the case with the rule in Allshorn, r 52 does not, in form, provide for a term of office for longer than four years without re-election. Rather, the rule provides for a term of office for four years from the completion of the Annual General Meeting in September of each year, and requires that elections for a “successor” occur between June and August preceding the Annual General Meeting in an election year. This is clearly designed to enable an officer to take up office at the conclusion of the Annual General Meeting, thereby ensuring that the term of office is for a four year term with an election prior to the end of the term. The fact that in some situations, such as has occurred in the present case, the term may extend beyond four years does not result in a contravention of the Act. As was said by Woodward and Northrop JJ in Allshorn (at 238), a provision that a holding over may occur until the successor has been elected

    “obviously is sensible to assure that, if an election is delayed, there is no interregnum.”

19. The approach in Allshorn is also consistent with the general principle of “holding over” which, by implication, entitles an officer to continue in office until a successor is elected: see McClure v Mitchell (1974) 24 FLR 115 at 126-127 per Joske J and Hansch v Transport Union Workers of Australia [2000] FCA 473 at [17]-[18] per Marshall J.

20. Consequently, although r 52(b) may in certain circumstances operate in a manner that results in a Branch Secretary holding over his or her office beyond the four year period, that does not have the consequence that s 199(1)(a) of the Act is breached. Accordingly, I do not accept the applicant’s contention that s 199(1)(a) (or its predecessors) requires r 52(b) to be construed so as to prohibit a holding over of office beyond four years.

21. The alternative construction of r 52(b) contended for by the applicant was that in the event that there is a “holding over”, by implication it will only be until a successor has been elected. Although in general a “holding over” should be brought to an end as soon as possible after the election of a successor, the manner in which such situations are to be dealt with is, subject to the Act, a matter for the rules of a registered organisation. Rule 52(b) specifically provides that the term of office is for a period of four years or until the successor has been elected and taken office.  A successor elected under the electoral process provided for in r 52 will take office, as provided in r 52(b), on the date on which the Annual General Meeting held in the year of election is completed.  When the Rules intend that a “successor” take office upon election or appointment they make specific provision for that to occur.  For example, r 52(g)(i) and (g)(ii) provide for the person elected or appointed to fill a casual or extraordinary vacancy to take office from their election or appointment. Thus, there is little scope for the implication contended for by the applicant.

22. The construction put forward on behalf of the applicant requires that the requirement that the successor’s term commence from the taking of office be read out of the rule in the case of a holding over of office.  There are considerable obstacles in the path of that construction.  First, it ignores the plain and ordinary meaning of the words.  Second, the applicant contends that the rule entitles her to a term of four years but does not accept the associated provision that the taking of office for the four year term only commences from the completion of the Annual General Meeting.  In my view there is no justification for construing r 52(b) in a manner that retains the four year term but not its commencement after the Annual General Meeting in the event that there is a holding over of office.  Third, the rule has sought to ensure there is no interregnum.  The fact that in some situations the holding over may continue until the completion of the next Annual General Meeting does not justify a re-writing of the rule.

23. For the above reasons I am of the view that the applicant’s construction of r 52(b) should not be accepted and, on the plain and ordinary meaning of the words used in the rule, the applicant is to take office from the completion of the Annual General Meeting of the Branch to be held in September 2000.

    Conclusion

24. For the reasons set out above I have concluded that, under r 52(b), the applicant’s tenure of office as Branch Secretary is to commence from the completion of the Annual General Meeting of the Branch due to be held in September 2000 and not from the date of her election, being 14 June 2000. It must follow that the basis upon which the applicant has sought relief in the two proceedings has not been made out with the consequence that she is not entitled to the ultimate relief that she seeks in her proceedings under ss 209 and 218 of the Act.

25. At the interlocutory stage the parties accepted that it was appropriate to bring the matters on for a final, rather than an interlocutory, hearing.  Thus, the issue of whether a Rule to Show Cause should be issued and an order for an Election Inquiry should be made were to be resolved on a final, rather than an interim or interlocutory, basis.  In the circumstances it seems appropriate that I grant declaratory relief concerning the construction of r 52(b) but otherwise direct the parties to bring in Minutes of Orders in respect of any further orders that might be appropriate to dispose of the matter.  Accordingly, I propose to declare that, in the events that have occurred, upon the proper construction of r 52(b) of the Rules, the applicant is to take office as the Branch Secretary of the Victoria No 1 Branch of the Union as from the completion of the Annual General Meeting of the Branch to be held in September 2000.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             2 August 2000

Counsel for the Applicant:	Mr RM Niall
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondent:	Mr J Nolan
Solicitor for the Respondent:	Maurice Blackburn Cashman
Counsel for the Health Services Union of Australia:	Mr D Langmead
Solicitor for the Health Services Union of Australia:	Health Services Union of Australia
Counsel for the Returning Officer:	Mr T O’Donoghue
Solicitor for the Returning Officer:	Australian Government Solicitor
Date of Hearing:	19 July 2000
Date of Judgment:	2 August 2000