Reference of Questions of Law by the Industrial Registrar v The Federated Municipal & Shire Council Employees Union of Australia

[1980] FCA 174

Re: IN THE MATTER OF A REFERENCE OF QUESTIONS OF LAW BY THE INDUSTRIAL
REGISTRAR
And: IN THE MATTER OF THE FEDERATED MUNICIPAL AND SHIRE COUNCIL EMPLOYEES
UNION OF AUSTRALIA
No. 11 of 1980
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
J.B. Sweeney J.
Evatt J.
Keely J.

CATCHWORDS

Industrial law - reference by Industrial Registrar of questions of law - whether resignations of officers and/or members of committee of management valid - whether resignations in accordance with rules - whether resignations were "received".

Conciliation and Arbitration Act, 1904 s.112

HEARING

MELBOURNE

#DATE 19:11:1980

ORDER

(1) Are the purported resignations, or any of them, valid resignations?

Answer: No.

(2) If all or any of the resignations are valid, should the request be granted in whole or in part?

Answer: Does not arise at this stage.

JUDGE1

This is a reference by the Industrial Registrar of two questions of law. It appears that on 31 July 1980 a special meeting was held of the members of the Federated Municipal and Shire Council Employees Union of Australia, Victoria Division ("the Division"). At that meeting certain resolutions were carried and thereafter pre-typed forms of resignations were handed to a number of officers and members of the committee of management.

On 11 August 1980 a petition made pursuant to s.170 of the Conciliation and Arbitration Act, 1904 ("the Act") was forwarded to the Registrar. On the same day he received either the originals or copies of 11 resignations, dated 31 July 1980, signed by the officers and/or members of the committee of management to whom reference has been made. Each of the documents was addressed to the Industrial Registrar and each set out resolutions said to have been carried at the meeting above referred to. Each then continued "accordingly I hereby resign from my official position/s as office bearer and/or official of the Federated Municipal and Shire Employees Union of Australia (Victoria Division)".

It was claimed by a number of these persons that they had been subjected to duress and that this duress had caused them to sign the resignations. The Registrar had made a report on this but we do not find it necessary at this stage to determine this question since in our view the resignations are in any event invalid.

The rules of the Division provide in rule 34 that:

"The seat of a member of the Executive or the office of an officer of the Division shall be deemed to have become vacant -

(c) upon receipt by the Division of notice in writing of resignation of the occupant signed by him;"

The rules also provide for a General Secretary of the Division, for a Division President and for an executive comprised of the officers and 14 committeemen. The government of the Division is, between meetings of Conference, vested in the executive. The executive is to meet at such time and place as it may determine, while conference is to meet at such time and place as the executive may determine from time to time.

It would appear that the executive is designed to meet more frequently and it appears clearly to be the committee of management of the Division. It is conceded that the resignations were not received by the executive and indeed the only receipt suggested was that in some cases an officer may have been in possession of the notice of resignation immediately on his signing it and before it was taken over by some other person. The resignations were not brought before or dealt with by the executive. We have no doubt that that is not a receipt by the Division of the notice of resignation within the meaning of rule 34. The consequence is that there have been no valid resignations and consequently no vacancies for which an election could be held.

It was submitted somewhat diffidently that, as a result of the lodging of a petition under s.170 of the Act, the Industrial Registrar had power to conduct an election because the provisions of s.170 could override the rules relating to vacancies in offices, but this we think is clearly not so. If it were so and the petition had effect it would override the rules and the provisions of sections such as s.133(1)(f) and the provisions of reg.115(1)(d)(i)(iv). We find this impossible to accept.

The questions referred by the Registrar are:

(1) Are the purported resignations, or any of them, valid resignations?

(2) If all or any of the resignations are valid, should the request be granted in whole or in part?

In our opinion the questions should be answered as follows :

(1) No.
(2) Does not arise.