Registrar in Bankruptcy v Bradley

C A T C H W O R D S

Industrial Law

- Registered organization

- Rules - Resolution

of Branch Committee of Management to employ temporary

relief

organiser - Whether authorised by the rules

- Whether bound

to employ elected organiser

- Whether rules contrary

to law

or oppressive, unreasonable

or unjust - Whether Comittee of

Management acted bona Eide.

Roughan v. Coulson & Ors. (1982) 2 I.R. 1 4 5 ; 3 I.R.	393.
PATRICK JOHN ROUGHAN v. COULSON & ORS.

No.	22 of 1 9 8 3

CORAM

Neaves J

3 1 October	1 9 8 3
Sydney.

THE

FEDERAL

COURT

OF AUSTRAZIA )

)

NEW SOLTH WALES DISTRICT REGISTRY 1

No. 22 of: 1983

)

DIV SION

INDUSTRIAL

)

IN THE MATTER of the Conciliation and

Arbitration Act 1904

AND IN THE MATTER of an application under

sections 140 and 1 4 1 of the said Act

BETWEEN.

PATRICK

J O H N

ROUGHAN

Applicant

Respondents

O R D E R

JUDGE MAKING DATE OF ORDER:

ORDER:

Neaves

31 October 1983

Sydney

W H E R E

MADE: THE C0W.T ORDERS THAT:

1.	The rule to show cause herein be discharged.

The applicant pay the costs

of the respondents of

and incidental to the application, the costs

of the

last-named respondent to be those	of a submitting
party.

I N THE FEDERAL COURT OF AUSTRALIA 1

)

NEW

SOUTH WALES DISTRICT REGISTRY )

N O .

22 O f 1 9 8 3

INDUSTRIAL DIVISION

)

IN	THE MATTER of the Conci l ia t ion and

A r b i t r a t i o n Ac

AND I N THE MATTER of an a p p l i c a t i o n under

sections 140 and 1 4 1 of the said A c t

BETWEEN :

PATRICK JOHN ROUGHAN

Applicant

AND :

Respondents

CORAM :

Neaves

J .

DATE :

31 October 1983.

REASONS

FOR

JUDGFENT

This is the return

of a rule granted

on 10

August 1983 to Patrick John Roughan ("the applicant") calling upon the respondents to show cause why certain

orders under sections 140 and 141

of the Conciliation

and Arbitration Act

1904 ("the Act") should

not be made.

The respondents arc

The Australasian Meat

Industry Employees' Union ("the Union"),

an organization

of employees registered pursuant to the

Act, and the persons

who comprise, and at the relevant time comprised, the

Committee of Management of the Newcastle and Northern Branch

of the Union. The applicant is, and has at

a l l material

times been, a member of the Union and	of the Newcastle and
Northern Branch.

The Union

did not take any part

in the proceedings

and submitted to such orders as the Court might see fit to

make.

The applicant seeks relief

in respect of

resolutions passed at a meeting

of the Committee of

Management of the Newcastle and Northern Branch

of the .

Union on 2 May 1983 providing for the employment

of one

of the respondents, Mr. Murray Bennett, as a "temporary

relief organiser"

with remuneration

of $350 per week and

with sick leave and other entitlements as provided	in the
Clerks State Award.

For

the applicant

it w a s submit ted that

the

Conunittee of Management,

i n p u r p o r t i n g t o

employ Mr.

Bennett

(who

he ld o f f i ce a s

Branch Treasurer)

such

temporary

r e l i e f o r g a n i s e r ,

was

act ing otherwise than

in accordance

with the s a i d t h a t , i f t h e r u l e s p u r p o r t e d t o a u t h o r i s e

Federal

Rules

the

Union.

Al te rna t ive ly it was

Mr.	Bennet t ' s

employment,

t h e r u l e s

were contrary to

l a w wi th in the

meaning of paragraph 140(l)(a) of the Act or

imposed

members

of the

Union

condi t ions and restr ic t ions which

are

oppressive, unreasonable or unjust within paragraph 140(l)(c)

thereof . F ina l ly ,

was

submi t ted

tha t ,

i f t h e

r u l e s

purported

t o au tho r i se the

employment

and were

no t i nva l id ,

the dec is ion of the

Committee

Management

t o employ

M r .

Bennett was not made bona f i d e .

To	unders tand the i ssues tha t a r i se in the case

i t i s necessary to

r e f x t o

some o f the Federa l

Rules of

t h e

Union.

Rule 49 i s headed

"Branch

Government" and, so

f a r a s ma te r i a l , p rov ides : -

"Officers and

Committee

of Management.

Each

Branch

s h a l l have

President , Vice-President ,

Secretary and Treasurer.

Each

Branch

s h a l l

be governed

by a Committee of Management of

such of f icers

and such number of committeemen

h e r e i n a f t e r s e t

out

e lec ted

the Branch,

provided that where

any Branch

divided

into

sub-branches

the

committeemen

s h a l l be

e lec ted by the sub-branches

on a bas i s o €

r ep resen ta t ion to

decided from time

t o

time by the Branch Committee of Management.

3 .

Each Branch may have as additional officers an organiser or organisers and assistant

secretary, who when elected, shall

be members

of the Conunittee

oE Management.

. . . .

Newcastle and Northern Branch:

The Committee of Management

of the Newcastle

and Northern Branch shall consist

of the President,

two Vice-Presidents, Secretary, Assistant Secretary, elected from the members in the area covered by

the Council

of the City of Newcastle and the

Lake Macquarie Shire Council, and two representa- tives elected from the members outside that area.

FIVE shall form a quorum.

The Executive shall comprise President, two Vice-Presidents, Secretary, Assistant Secretary, Treasurer andorganisers, who shall administer the

business of the Branch between meetings of the

Committee of Management.

(Three shall form a quorum).

Fifty (50) financial members

of the Branch

may have a Special Meeting called for the purpose

of reviewing any matter decided by the Committee

oE Management upon written request to the Secretary.

The Committee of Management shall meet at

such

times as may

be decided upon from time to time."

Rule 51. deals with the powers and duties

Committees of Management and Executives. Its provisions

include the following

"The functions of

a l l Branch and Sub-Branch

Committees of Management and Executives

shallbe

t o administer the rules €or the benefit of the

members, to carry out the policy of the

Union,

to deal with all matters and transact such

busi-

ness as may arise,

and endeavour to carry out

the objects of the Union.

They shall decide

in all cases for which no

provision is made in these rules.

The Branch

Committee of Management or Branch Executive shall

meet at least once

a month.

All decisions of the Connittee

of Management

or Branch Executive shall be binding

on the members

unless negated or amended

by the majority

of members

present at a meeting specially suurmoned to

deal with

the matter under consideration. Provided that this

does not apply

in the case wherein

a fine has been

imposed on any member."

Rule 5 3 is headed "Branch Sub Branch

and District

Committee Elections". Sub-rule (1) provides

"Nomination and Election

of Officers.

A ballot shall be conducted not later than

the

thirty-first day of December, 1 9 6 9 , for such of the following positions as defined in Rule 49 - President, Vice-Presidents, Secretary, Assistant

Secretary, Treasurer, Organisers, members

of the

Committee of Management, Federal Council Delegates and any other positions decided on by the Committee

of Management of the Branch,	and henceforth such
ballot shall be conducted on	every fourth year."

It is unnecessary to set out the whole

of the provisions

of the rule. It is sufficient for present purposes to

note

that the rule provides for the conduct

of elections by

secret postal ballot, for the appointment and duties

returning officers, for the nomination of candidates

fo r

election, for the voting and for the conduct and duty of

scrutineers. Paragraph (c) of sub-rule 53(19) provides -

"Any person elected pursuant to these rules

fill an interim vacancy shall be designated

the word 'Acting' preceding the office to

which

he is elected for the remainder of

the term."

Rule 5 4 deals with casual vacancies and

provides -

"Casual vacancies for Branch and Sub-Branch

OfEicers, 0rganisers.Queensland District Committee

Officers (as defined in Rule

4 9 , of these rules,)

Branch and Sub-Branch Committee

of Management

5 .

members;

D i s t r i c t Committee members

and Federal

Counci l Delega tes sha l l be f i l l ed

i n

t h e

same

manner

as provided for in

R u l e

53 of these rules."

Rule 55 i s headed

"Duties

Officers".

Included

w i t h i n t h a t p a r t

o f t he ru l e dea l ing wi th the o f f i ce o f

Branch

Pres ident

i s

provis ion (sub-rule 55(a)

( 5 ) ) t h a t

"Each

Branch

s h a l l

have the r igh t to

employ

t h e

Branch President in

ful l - t ime organis ing capaci ty ."

In	r e l a t ion to the du t i e s o f o rgan i se r s t he ru l e p rov ides

(sub-rule

55(d))

The Committee of Management may a t any time determine the number of Organisers that may

employed

the Branch, and,

i n the event

o f t he necess i ty to inc rease o r dec rease the

number,

between

e l e c t i o n s , t h e

Committee

Management

s h a l l have

full power

t o a c t .

Such

Organisers shal l be under the

direct

supervis ion of the Branch o r Sub-Branch

Secre ta ry ,

who

s h a l l

be subjec t to the

d i rec t ion of the

Committee

Management

of the Branch, and such Organisers shall carry out such dut ies	as	a r e a l l o t t e d t o
them.

They s h a l l r e p o r t t o t h e Branch o r Sub- Branch Secretary each day, unless otherwise

d i r ec t ed ,

and

s h a l l pay

i n a l l moneys

c o l l e c t e d a t r e g u l a r i n t e r v a l s .

They	sha l l a t tend a l l meet ings and g ive

information and

advice when

r e q u i r e d t o

a l l mat te rs a r i s ing out of the i r

respec t ive dut ies .

They

s h a l l be

paid such salary weekly as

may

f ixed by the committee of

Manage-

ment

o r by

independent Arbi t ra tor ,

who

may be a Conciliation Commissioner."

In January

1976 t he app l i can t

was

employed by

the Newcastle and Northern Branch

the

Union

a s

tempor-

a r y f i e l d o f f i c e r . I n

1977

was

e l e c t e d f o r

term

G .

four years per iodic e lec t ion he ld

an organiser

that branch.

A t

the next

i n

1981 he

was

returned

unopposed

t o one of Three other persons were also elected

the four off ices of organiser within the branch.

unopposed

as organisers ,

they being

M r .

B .

Cole, M r .

N .

Proud

and

M r .

B .

Tobin.

M r .

Cole

and

M r .

Proud

are respondents

these proceedings.

The

four Drganisers

were e l e c t e d f o r

a term which

w i l l

expi re i n Ju ly 1985.

The

appl icant was

employed

ful l - t ime as an

organiser at a salary f ixed by the Conunittee of Management.

He continued to be the Committee of

so employed u n t i l 15 March

1982 when

Management

a s t hea cons t i t u t ed ,

a t a

special meet ing, carr ied

resolut ion in the fol lowing terms:-

“That because of the reduction

i n

membership

which

i s approximately 30% and

subs t an t i a l

losses for the past 18 months,

t h a t

i s ,

th ree

(3)

ha l f yea r s t o t a l l i ng

$51,452.00

the

staEf

reduced

two

( 2 )

Of f i c i a l s a s pe r au th -

o r i t y v e s t e d

the Committee of

Management

as provided by Rule 55

- Duties of Officers

Sub-clause

(d ) (1).

Such te rmina t ion

sha l l

apply in cons idera t ion of sen ior i ty , tha t

i s , M r .

B .

Tobin

and

M r .

P .

Roughan,

are the

Organisers

be terminated.”

The

appl icant then appl ied to th i s Cour t

r u l e

show

cause for orders under sect ions

140

and

1 4 1 of the

Act i n (Roughan v. Coulson Er Ors. (1982) 2 I . R .

r e l a t ion

tha t

r e so lu t ion .

those p roceed ings

145: 3 I . R .

393)

it was o f the reso lu t ion

contended

behal f o f the appl icant tha t the e f fec t

was

that the appl icant had

been

removed

from the off ice

t o which he

had

been

e l ec t ed and

t h a t ,

i f

7 .

ru l e 55 (d ) (1) was

the source of

power

to adopt such

r e s o l u t i o n , t h e r u l e

made

provisions which were contrary

to paragraph

133(1)I€),

and consequently of paragraph

1 4 0 ( l ) ( a ) , o€

the

Act.

It was

also

contended

that

the

r u l e , so construed, was	contrary to paragraph	1 4 0 (1)	(c)
of the Act.

Evatt

J .

a t

f i r s t i n s t a n c e t o o k t h e

view

t h a t ,

by adopting a resolut ion reducing

by two t h e number of

o f f i c e s

organiser wi th in the branch , the par t icu lar

o f f i c e s

were abolished but there had been no "dismissal

from

office" of the former holders

t hose o f f i ces wi th in

the meaning of

tha t express ion

i n paragraph

1 3 3 ( 1 ) ( € ) of

the Act. Rule

55(d) (l),

therefore ,

in h is Honour ' s

view,

did

not

contravene

paragraph

1 4 0 ( l ) ( a )

the

Act.

H i s

Honour

a l so he ld tha t t he re

was

no ground

for concluding

t h a t r u l e

55:d)

(1)

contravened paragraph

1 4 0 ( 1 ) (c) of

the

Act.

The r u l e

t o

show cause was, therefore ,

ischarged.

From	tha t dec i s ion the app l i can t success fu l ly

appealed

Full Court of

this Court .

1 6 December

1982

the

Ful l

Court allowed the appeal

and

o rde red tha t t he

respondents to those proceedings other than the

Union

observe the rules of the

Union

t r ea t ing the app l i can t

and M r . B . Tobin as members of the

Committee of Management

of the branch for the ba lance of the i r

terms

o f€ ice .

I n a

j o i n t judgment

S t .

John and Northrop

JJ.

s a i d

((1982) 3 I.R. 393 at p. 397) -

"It appears to

us that the true intention

the rules is that the elected organiser is

both a representative of the members

on the

Committee of Management and in addition there- to, may be employed by the Committee under a

contract of employment.

The sub-rule [sub-

rule 55:d)J

contemplates that, for the most

part, organisers who are elected shall also

I ,

be employed

........ ...

Their Honours continued (ibid.)

"Having regard to the fact that organisers

their representative capacity are elected and

casual vacancies to their numbers are also

required to be elected,

we have formed the

view that the

Cormnittee's power to decrease

is to decrease the

number employed and not

decrease the number

of organisers in their

representative function ........ ... All these

factors convince us

that, on a

proper inter-

pretation, it is the employment of organisers

under a contract

of employment which the

Committee may terminate in order to decrease

the number employed, which

is the object

the sub-rule. Similarly, the number of

persons who are employed as organisers may

be increased.

Smithers J. (ibid., at p. 394) expressed

difficulty with the concept that an organiser who is

elected acquires

as such and without more the capacities

both of holder

of the office

of organiser and that

employee of the organization". His Honour considered that.

the relationship

of employer and employee

was not created

by election to the office

of organiser and that there were

no other circumstances Erom which the creation of such a relationship was to be inferred. However his Honour felt

constrained, reading

the rules as a

whole, to hold that the

word "employed" in rule 55(d)

1 referred both to organisers

who

were engaged under

cont rac t o f employment and t o those

who

he ld

the i r pos i t io r .

v i r tue of e lec t ion . Accord ingly ,

ru le 55(d) (l) authorised the committee

of Managemsnt t o

terminate

two

of the of f ices

the organizat ion which had

been created

e l ec t ion .

t o c o n s t r u e

t h e rule d i d n o t ,

i n h i s Honour's view, involve

any

contravent ion of

paragraph

133(1) ( f ) of

the Act.

But

h i s Honour could see no reason

why

the terminat ion of the oEfice

e lec ted organiser

should

a€fec t

the

ex is tence and occupancy by

the person

e l e c t e d

the o f f i ce o f

member of t h e Committee of Management.

The

pos i t ion then obta ined tha t

the

appl icant

i n

the present proceedings

was no longer employed by the branch

an organiser but he cont inued to hold off ice

member

of the Committee of Management.

During the las t

week

of March

o r t h e f i r s t week

o€ A p r i l 1983 the appl icant received

a telephone cal l from

the Secretary of the

West Australian Branch of

the Union,

Mr.

Payne,

ou t l i n ing the

problem t h a t that branch faced

reason

one of the organisers within that branch

t e rmina t ing h i s

employment wi th the

branch.

The applicant.

was

asked whether he

was

i n t e r e s t e d in tak ing

p o s i t i o n

f i e l d o f f i c e r w i t h t h e

West:

Au5tralian Branch

on a

t r i a l

bas i s

f o r a

period of up

t o t h r e e

months.

M r .

Roughan

understood that an election

was

t o be he ld to

f i l l the

casual vacancy caused

the res igna t ion

the organiser

bu t t ha t t ha t e l ec t ron

could

not

held

for

a t

least

t h r e e

months.

was

be ing o f fe red , he sa id ,

t he pos i t i on

temporary

f i e l d o f f i c e r

t r i a l wi th the

p o s s i b i l i t y

10.

t h a t

he might

candida te for the pos i t ion of organiser

a t	the proposed election.

M r .

Payne

informed

the

applicant

that

had

already discussed with the Secretary of the Newcastle and

Northern Branch,

Mr.

Coulson, whether

M r .

Roughan would be

i n t e r e s t e d i n

temporary organiser ' s posi t ion

i n t h e

West Australian

Branch.

Mr.

Payne a l so s a i d t h a t Mr.

Coulson

had given

a good repor t on P f r .

Roughan's

a b i l i t y .

M r .

Payne

asked the appl

icant

give considerat

ion to

going to

Western

Aus t ra l ia .

The

appl icant

sa id

tha t he

was

i n t e r e s t e d

he had been unemployed

f o r

some

considerable time

and

tha t he

would

g ive the mat te r h i s cons idera t ion .

The

applicant again spoke to

M r .

Payne

telephone within the Eollowing

week and informed

him that

he was the mat te r personal ly wi th

i n t e r e s t e d i n t h e p o s i t i o n b u t

would

l i k e t o d i s c u s s

M r .

Payne.

M r .

Payne

came

Sydney to a t t end Union on 18 and i9 A p r i l 1983.

meetingof theFedera1 Executive

t h e

On the evening

of 18 A p r i l

1983 M r . Roughan and h i s w i fe

met with M r .

Payne

and the

Federal Secretary of going t o Western Australia

the

Union.

The prospect of

M r . Roughan

was discussed.

Mr.

Roughan t o l d

M r .

Payne

t h a t

was

s t i l l interested in going to Western

Aus t r a l i a

and

t h a t , s u b j e c t t o f u r t h e r d i s c u s s i o n

w i t h h i s

w i f e , he

would

probably

go.

In answer t o a question

from

M r . Payne, un t i l a f t e r t he mee t ing o f t he

M r .

Roughan

sa id he

would

no t be ava i l ab le to

Committee

Managemezt

11.

of the Newcastle and Korthern Branch

to be held on

May

1983. Mr. Fayne

asked

Mr.

Rougharr to cons ider go ing

Western Aus t ra l ia a t an ear l ie r da te because of the d i f f i -

c u l t i e s t h e b r a n c h i n

Western Australia

was

fac ing .

Mr.

Roughan agreed

to consider doing

so .

t h e way

home

t o

Newcastle

from Sydney

M r .

Roughan

discussed the matter

w i t h

h i s w i f e .

It was

decided that

would

take

t h e p o s i t i o n

and

t h a t he would probably

t o Western Australia

the day

a f t e r

the Anzac Day

long week end, that

i s on Tuesday,

26 April 1983.

M r . Roughan on 20 o r 21 April 1983

inEormed M r . Payne by

te lephone that

he would

t o Western Aus t ra l ia on the

following Tuesday.

M r .

Roughan

says tha t

on 22 A p r i l 1983 he

telephoned

one

the female employees

t h e o f f i c e o f

the Newcastle and Northern Branch and informed her that he

1.70Uld

not be avai lable to a t tend the meet ing

t h e

Committee

of Management on 2 May

1983 or the next three monthly meetings

the Committee. He asked

the

employee

t o a r r a n g e t o

t e n d e r

h is apologies

for h i s non-a t tendance

a t

those meetings.

M r .

Roughan

fu r the r s ays tha t ,

beyond

s t a t i n g i n t h a t t e l e p h o n e

c a l l t h a t

"was

going t o t r y a

posit ion elsewhere", he

gave no

d e t a i l s o f

why

he was

expecting to be absent from

four meetings

the Committee of

Management.

H e

i d e n t i f i e d

the da te of the te lephone ca l l

r eason o f t he f ac t t ha t

he rea l i sed

the Fr iday tha t , a l though

was

l e a v i n g f o r

Western Australia on the following Tuesday, he had forgotten

to inform the

Committee of

Nanagement

that he would not be

avai lable for those meet ings.

1 2 .

Mr. Coulson gave evidence that

he had received

from his personal secretary (not being the person to whom

Mr. Roughan had spoken) a message that Mr. Roughan had

asked that the Committee of Management be informed of

his

inability to attend the four meetings of the Committee.

Mr. Coulson said that the message

was conveyed to him

some time during the week commencing

11 April 1983. Mr.

Coulson had become aware of the possibility that

Mr. Roughan

would go to Western Australia because

oE conversations he

had had

with the

West Australian Branch Secretary,

Mr. Payne,

but in the light

of Mr. Roughan’s evidence, which

I accept,

that a decision was not reached to ‘take

up th position in

Western Australia until after his meeting with Mr. Payne on

l8 April 1983,

Mr. Coulson must be mistaken as

to the date

on which he was informed

of Mr. Roughan’s message.

Except €or a brief period from

11 to 1 4 June 1983

when he returned to New South Wales, the applicant remaLned in Western Australia performing the duties of the position

of temporary field officer from

27 April 1983

to 29 July 1983.

As a result of a telephone conversation

on 8 June 1983 the

applicant first became aware that the Committee

of Mznagement

of the Newcastle and Northern Branch had

on 2 May 1983

resolvedto employMr. Bennett as a temporary relief organiser.

He then decided

to return to New South Wales

to find out

more about what had occurred.

13.

20 A p r i l 1983 M r . Cole suffered

a ser ious

hea r t a t t ack .

r e su l t he spen t

per iod of

time

i n

h o s p i t a l

and

was

absent from his

employment

wi th the

branch between

21 April 1983

and 10 J u l y 1983.

M r .

Coulson was

advised on the afternoon

20 A p r i l 1983 of

t he na tu re

M r .

C o l e ' s i l l n e s s

and of

his admiss ion

to hospi ta l .

from time

t o t i m e made

enqui r ies of the doc tor t rea t ing

M r .

Cole and

w a s

informed,

some

fou r o r f ive

days

a f t e r

20 Apri l

1983,

t h a t

it w a s

l i k e l y t o

subs tan t ia l per iod before

M r .

Cole would

r e t u r n t o

work

and

t h a t f o r

some

time

after h i s r e t u r n h e

would not be

a b l e t o c a r r y o u t h i s

full d u t i e s .

Mr.

Coulson

concluded that

M r .

Cole's absence

would

cause

s i g n i f i c a n t

problems and delays

i n t h e r e p r e s e n t a t i o n o f t h e i n d u s t r i a l

i n t e r e s t o f

members

the branch.

also concluded

that

" there was

a press ing and r e a l need

f o r t h e

Branch t o obtain temporary

a s s i s t ance ,

both

during the absence of

Mr.

Cole on

sick

leave

and

t o a s s i s t

him

f o r some

per iod upon h i s

re turn to duty, having regard to	M r .	Cole 's
l i k e l y i n c a p a c i t y f o r f u l l d u t i e s . "

During

the week fol lowing

his

becoming aware

'.^

of M r . with the Branch President,

C o l e ' s i l l n e s s

M r .

Coulson discussed the posit ion

Mr.

Small,

who

sugges ted tha t

he, M r .

Small,

could, perhaps,

f i l l t h e p o s i t i o n

organiser

in accordance wi th

ru le 55(a) (5) .

M r .

Coulson

agreed with	him	t h a t t h i s	was	poss ib le .
1 4 .

Mr.

Bennett was a l so in touch wi th

Mr.

Coulson

te lephone during that per iod

and was

informed of

Mr.

Cole's

i l l n e s s .

Mr.

Coulson

denied

t h a t

t h e r e

was

any d iscuss ion

between himself

and Mr.

Bennett concerning the action which

should be taken to obtain temporary assistance during

Mr. Cole ' s absence.

Both M r . Small

and

M r .

Bennett gave consideration

t o t h e m a t t e r p r i o r t o t h e m e a i n g

t h e

Committee

Management

2 May

1983 and were

in a

pcs i t i on to app ly

f o r t h e p o s i t i o n

when

it was

discussed a t that meet ing.

appears that

M r .

Bennett: had

discussed the matter with

h i s w i f e .

M r .

Small had discussed

i t wi th h i s

w i f e and

had arranged with his employer to take leave of absence

from h i s

employment

to enable

him

to per form the dut ies

of temporary

re l ie f organiser wi th in the branch

i f

he were

o f f e red the pos i t i on .

M r .

Coulson

d i d

no t inqui re of the appl icant

o r

M r .

Tobin whether

e i the r o f

them wished t o be considered

f o r

posi t ion of

temporary

rel ief organiser .

also

c l e a r t h a t

Mr.

Coulson

took

no spec ia l steps to inform

other members

of the

Committee of

Management

p r i o r t o t h e

meeting on

2 May

1983 t h a t t h e r e

was

a need to ob ta in

temporary assistance during

M r .

Cole's absence.

The meeting of t h e Committee of Management on

2 May

1983 commenced a t 1 . 0 0 p.m.

Following a motion

15.

condolence i n r e s p e c t

deceased member

apologies were

received.

It w a s noted

that

Mr. Roughan had apologked

for

four meetings.

The

minutes

record

that

towards

the

end

of the meeting under the item "General Business" the Branch

Secre ta ry , M r .

Coulson,

informed

the

Committee

t h a t M r .

Roughan had gone

t o Western Australia for

a three months'

t r i a l as an employed organiser .

Mr.

Coulson

gave

evidence

tha t t h i s i n fo rma t ion

was

a l so

conveyed

t o t h e

meeting

a t

the t ime

Mr. Roughan's apology

was recorded i n answer t o

a quest ion addressed to

him concerning the reason for

M r .

Roughan's

absence.

The Branch Secretary informed the

Committee t h a t

Mr.

Cole had suffered

h e a r t a t t a c k

and was

i n a

se r ious

cond i t ion , t ha t

i t was

expected he

would

r e t u r n t o work

i n

due

course and that

i t w a s thought that

when he d i d r e t u r n

t o work

it would be

"on

se l ec t ed du t i e s

t o some

degree".

A r e so lu t ion to cont inue paying

was

passed authorising the Branch Secretary

Mr.

Cole while he

was o f f work on leave

absence

due

t o i l l n e s s .

The

Branch

Secretary then asked the

Committee what

should

done

in the circumstances.

One

those present ,

Mr. Adamthwaite,

suggested

t h a t

temporary organiser be

appointed

for

the durat ion

the

emergency.

The

Branch

Secretary endorsed this suggest ion

and

s t r e s s e d t h a t ,

due

t o

the urgency of the s i tuat ion, sui table arrangements should

be made

soon as p o s s i b l e t o

employ a temporary r e l i e f

organiser .

M r .

Adamthwaite

s t a t e d

t h a t ,

s i n c e

t h e r e

was

an emergency,

d i f f i c u l t i e s would

encountered

i f

t h e

pos i t i on had

t o be

advert ised.

The

Pres ident ,

M r .

Small ,

informed the

Committee

tha t he

w a s

p r e p a r e d t o o f f e r h i s

se rv ices as

temporary relieE organiser €or the period

t h e

emergency.

On the motion of Mr. Adamthwaite,

seconded by

M r . Ga r re t t , of Management "appoint a Temporary Relief Organiser".

r e so lu t ion w a s

c a r r i e d t h a t t h e

Committee

The

P res iden t aga in s t a t ed tha t he

w a s

prepared

to t ake l eave

of absence from

h i s work €or a per iod o f time

and

t h a t

he proposed

to vaca te the cha i r wh i l e t he ma t t e r

was

discussed.

M r . Adamthwaite as

Vice-President

took

the

c h a i r .

M r .

Bennett

informed

the

Committee t h a t he

would

prepared to take

the posi t ion of temporary rel ief organ-

i s e r .

The Vice-President

asked

whether

anyone

e l s e

was

interested.

There

was no response.

The	Branch Secretary informed the Conunittee that

the temporary

relief

organiser would

not be t rea ted as

normal

organiser.

sa id

tha t

the

temporary

re l ie f

organiser

would

t r ave l w i th ano the r o rgan i se r , f i r s t w i th

M r . Proud and

then with Mr.

Cole when he returned to work.

He	fu r the r s a id :

"We

are going to

employ

someone

to help us out .

What

happens

i n t h e f u t u r e

not know.

a r e f i l l i n g

an emergency,

re l ie f Organiser .

The person who

i s se lec ted would be

a person

who	has qua l i f ica t ions to ass i s t an Organiser" .

17 l

The two applicants then left the room and the Ccmmittee, after further discussion, resolved that the temporary relief organiser should receive remuneration of $350 per week and be entitled to sick leave and other

conditions in accordance

with the Clerks State Award. He

was not to receive the weekly allowance payable to an organiser

or to be given a motor vehicle.

The remuneration agreed upon

was less than that being paid to the two organisers who had

been elected to that office, Mr. Cole and Mr. Proud.

Mr. Small and Mr. Bennett were then separately

interviewed. After further discussion in the absence of the

applicants the Committee,

on the motion

of Mr. Garrett

seconded by Mrs. Edwards, resolved that the services

Mr. Bennett be retained for the position of temporary relief organiser "in that he is filling the position left by

Organiser Mr. Barry Cole who will be oEf

work for a

considerable time due to a heart attack."

Mr. Small and

Mr. Bennett were then informed that Mr. Bennett was to fill

the position. Mr. Bennett commenced duty	in the position
on 9 May 1983.

I am satisfied, and

so find, that Mr. Bennett was

employed in a temporary capacity to meet the emergency

situation that had arisen by reason

of Mr. Cole's illness.

Although no specific date was or could be fixed on

2 May 1983

as the date	on which his	ternporary employment was to terminate,
18.

.	I am satisfied that the period of temporary employment

was to continue only during such period as Mr. Cole was

unable to attend to his duties by reason of his illness and

for such further period after Mr. Cole returned to work

during which his state of health required that he be given

assistance. The resolutions passed

on 2 May

1 9 8 3 provide,

in my

view, no authority fcr Mr. Eennett's employment beyond

that period. In the light of those findings I now proceed

to consider the submissions pLt to the Court.

For the applicant it was submitted that the

resolutions of the Committee of Management at its meeting

on 2 May 1983 for the employment

of Mr. Bennett as a

temporary relief organiser were not within the powers

conferred on the Committee by the Federal Rules of the

Union.

It was said that the rules of the Union require

that 2 person may only be employed as an organiser,

including a temporary relief organiser, if that person has

first been elected to the office of organiser. To support

this submission reliance was placed on rules

53, 5 4 and 55.

Alternatively it was said that

if the Cornittee -

of Elanagement had power

to employ as

a temporary relief

organiser a person who had not been elected to the oEEicc

of organiser, the Conunittee could only employ

in that

position the person who is for the time being the Eranch in rule 55(a)(5), that provision excluding, by implication,

any express power in the Committee

o employ any other person.

1 9 .

the fu r the r a l t e rna t ive

i t was

submit ted that ,

i f r u l e 55 authorised the

Committee to appoin t

a person

a s

temporary

r e l i e 1 o r g a n i s e r

and

t h e r e was

avai lab le

person

who

had been elected to the office of organiser but

who

was

no t a t t he t ime the pos i t i on

was

f i l l e d

employed

as an organiser within the branch, the

Committee

was

bound

t o o f f e r t h e p o s i t i o n t o

that

person.

It was

also

submi t ted tha t ,

i f

each of the

above submissions were rejected, the Comittee

had

power

t o f i l l t h e p o s i t i o n o f

temporary

r e l i e f o r g a n i s e r

without

advertising

the

vacancy.

In my

opinion the

f i rs t of the above submissions

should

r e j e c t e d a t l e a s t i n

f a r as

t h e employment

temporary

r e l i e f o rgan i se r

i s concerned.

Clearly

rules

5 3 and 5 4 were not applicable

as the re was no vacancy i n

an off

ice

requir ing

to be Ei l led

e l e c t i o n .

M r .

Bennetc

was employed need t o express a view whether the Committee

o n l y i n

temporary

r e l i e f c a p a c i t y

have no

may properly

employ as an organiser

on a permanent b a s i s a person who

has not been elected to an off ice

o rganiser wi th in the

branch. I should

perhaps

say,

however,

that

i n c l i n e

t o

the view that the committee

may

a t l e a s t

pending the

next per iodic e lec t ion he ld in accordance wi th ru le

53.

Such a

conclusion would,

think, accord with the construct ion

of the rules adopted	by	the Court	i n Rouphan v .	Coulson h	Ors.
( supra) .

I n my

opinion the

power

in t h e C o m i t t e e t o

employ Mr.

Bennett as

temporary r e l i e f o r g a n i s e r

t o be

Eound

e i t h e r i n r u l e 5 5 ( d )

(1) o r in the gene ra l

power

g iven to the

Committee by

r u l e

4 9

t o govern the branch.

Any

dec is ion made

the

Committee

i n e x e r c i s e o f t h a t

power

i s subject to review

t h e members of the branch

i n

accordance with the rules (see rules

4 9

and

51) .

a l s a of

the opinion that

the presence i n

t h e r u l e s o f r u l e

55(a) (5) does not

l i m i t

t h e power

o f

the

Committee of Management i n employing a person as a temporary

r e l i e f o r g a n i s e r .

agree with Smithers

J . i n Roughan v.

Coulson Sr

Ors.

( supra) tha t

the provis ion

was

i n c l u d e d t o

make

p l a in tha t t he

employment under

a cont rac t of

employment

of the Branch President

may

wi th propr ie ty

negot ia ted

between him and the branch.

can

f ind no

j u s t i f i c a t i o n i n t h e

rules

f o r

l imi t ing the

power

of the

Committee t o employ a s a t e m -

po ra ry r e l i e f o rgan i se r

person

who

has been e lec ted to

t h e o f f i c e

o f o rgan i se r o r fo r r equ i r ing tha t t he pos i t i on

be offered to such

person

i f

one should be available.

Nor can requirement that the posi t ion of temporary rel ief organiser

f i n d

any

j u s t i f i c a t i o n i n t h e r u l e s f o r

be adver t i sed as of a person

condi t ion precedent to the

employment

such

pos i t ion . These a re a l l mat te rs

management

t h e a f f a i r s

of the branch upon which the

Committee,

sLbject

to the

power

of review to which

have

21.

referred, must exercise its best judgment. A decision of

the Coxnittee to proceed otherwise than

in a manner which

the submissions suggest is proper is

not, for that reason

alone, outside the Committee's power.

The applicant next submitted that,

ifandin so

far as the Federal Rules of the Union authorised the

employment of

Mr. Bennett as a temporary relief organiser

of the Newcastle and Northern Branch	of the Union,
the rules -

(a)

are contrary to a law within the meaning

of paragraph

1 4 0 ( 1 ) (a) of

the Conciliation

and Arbitration Act

1904; or

(b)

impose on members of the Union conditions and restrictions which are oppressive, unreasonable or unjust within paragraph 140(1) (c) of the Act.

Paragraph 140(l)(a)

of the Act provides that the

rules of an organization are not ta be contrary

to, or fail

t o make a provision required

by, a provision of the

Act,

the regulations under the Act or an award,

or otherwise

be contrary to a law.

In support of this submission the

applicant identified

as the relevant provisions

of the Act

and the regulations under the Act paragraph

133(l)(f) of

the Act and paragraph

115(1) (c) and sub-paragraphs 115(1) (d) (i)

and (v) of the regulations.

22.

Paragraph 133(l)(f)

the Act

provides

inter

a l i a , t ha t t he cond i t ions

t o

complied

wi th

organisa t ions

reg is te red pursuant to the	Act	include	a	condi t ion tha t the
ru l e s o f t he o rgan iza t ion	-

"sha l l no t provide for

the

dismissal

from

o f f i c e

person e lec ted to

an o f f ice wi th in the

. . .

. .

organizat ion unless he

has been found guilty,

in accordance with the rules of the

. . . . . organ-

i z a t i o n , o f m i s a p p r o p r i a t i o n

the funds of the

.....

organiza t ion ,

substant ia l breach of

the

r u l e s

the

..... organiza t ion or gross

m i s -

behaviour or gross neglect

duty or has ceased,

according

the rules

the

..... organiza t ion ,

t o

e l i g i b l e t o h o l d o f f i c e . "

unable to see

any

bas i s fo r ho ld ing tha t

t h e r u l e s

i n

f a r

they au thor i sed the

employment

M r .

Bennett as

temporary

r e l i e f o rgan i se r a r e con t r a ry

paragraph 133(l)(f)

the Act . Nei ther

the

rules

nor

the reso lu t ions

passed on 2 May 1983 operated to

dismiss

the app l i can t

from any

o f f i c e t o

which he had been elected.

Sub-regulat ion 115(1) of the Conci l ia t ion

and

Arbi t ra t ion Regulat ions, read with sub-regulat ion

115(2),

sets

out condi t ions

which

a re p re sc r ibed cond i t ions to

complied with

an organiza t ion apply ing for reg is t ra t ion .

pursuant

the

Act

Subst

tut

ing

"organizat ion"

for

"association" wherever appearing, paragraph 115(1) (c)

prescr ibes as

cond i t ion tha t

"(c)

the

organiza

ion

sha

whol

p a r t i a l l y

formed,

organized,

supported,

maintained

conducted,

directly

ind i rec t ly , for the purpose , o r wi th the view, of opposing, injuring or prejudic-

i n g t h e i n t e r e s t s

employers or cm-

ployees,

as the case

may be, whose i n t -

e r e s t s

purports

represent ,

fur ther

or pro tec t . "

23.

Sub-paragraphs 115(1)

(d ) (i) and

( v ) , making

s imi l a r

subs t i tu t ion , p rescr ibe as condi t ions

" ( d )

t he

a f f a i r s

t he

o rgan iza t ion

sha l l

be regulated by ru l e s spec i fy ing the industry in or in connexion with which the organiza t ion i s formed, the pur-

poses

f o r which

i t i s formed and

the

c o n d i t i o n s o f e l i g i b i l i t y f o r

member-

sh ip thereof

and

p r o v i d i n g , i n r e l a t i o n

t o

the o rgan iza t ion ,

fo r

(i)

the

e lec t ion

(a )

a committee

management of

the organiza t ion

and

of each

branch of the organization;

(b)

oEEicers

oE the

o rganiza t ion

and

of each branch

t h e

organizat ion;

and

( c )

any conference,

council ,

panel

o r o the r

body

( a d d i t i o n a l t o

the

committee

management),

which

empowered

t o d e t e r -

mine	po l i cy o r t o exe rc i se

funct ions o f management	i n
the Organization or branch;
.....

(v) the

control

committees

t h e

organizat ion and i t s branches by

the

members

of the organizat ion

and the members	of the branches,
respec t ive ly ."

I n my opinion

there

i s

no th ing in the ru l e s

of the

Union

r e l e v a n t t o t h e i s s u e s t h a t a r i s e i n t h i s

case

which

i 5 cont ra ry

the provis ions

regula t ion

115

on which counsel

relied.

far as paragraph 115(1) (c)

i s concerned,

there

i s no doubt t h a t Mr.

Roughan i s

d i s sa t i s f i ed wi th the dec i s ion

which

t h e

Committee

Management

made

t o

employ

Mr.

Bennett but he has not

es tab l i shed

any ground

fo r h i s con ten t ion tha t ac t ion

has

been

taken

contrary

that

paragraph.

f a r as

2 4 .

the other ru les of the

provis

ions are

concerned,

construe

the

Union

as au thor i s ing the

Committee

Management t o employ a person as

a temporary r e l i e f

organiser provides , in

view, no basis

a t

a l l f o r

the conten t ion tha t the

Committee

Management

i s

not under the control

t h e

members

the organiza t ion .

The Committee of Management i s i tself an e l ec t ed body and r u l e 4 9 provides in the case of the Newcast le and

Northern Branch that f i f ty f inancial

members

o f

t h e

branch may

have

special meet ing cal led for the purpose

of reviewing any matter decided

the

Committee

( see

a l s o r u l e

5 1 ) .

Paragraph

140 (1)

( c )

t h e A c t

p rovides tha t

t he ru l e s

organizat ion are not to impose

upon

app l i can t s fo r

membership,

o r members,

the organiza t ion

condi t ions, obl igat ions or res t r ic t ions which, having

regard to the objec ts of the

Act

and

the purposes of the

reg is t ra t ion of organiza t ions under the

A c t ,

are

oppressive,

unreasonable or unjust .

The

objec ts

OE the Act

t o which

p a r t i c u l a r a t t e n t i o n

was

draw. a re those se t ou t in para-

graphs

(e)

and

( f ) of

sect ion

2 namely -

"(e)

encourage

the

organization

repres-

entative bodies of employers

and employees

and

t h e i r r e g i s t r a t i o n

under

th i s

Act;

and

( f )

t o encourage

the

democratic

control

so r eg i s t e red

and

t h e f u l l

organizat ions

p a r t i c i p a t i o n

members

of such an

i n t h e a f f a i r s o f t h e

o rganiza t ion	"
organizat ion.

There is, in my opinion,

no substance in the

submission that the rules of the organization

in so far

as they permit the employment

of a person as a temporary

relief organiser in the circumstances

which have been

shown to have arisen in the conduct of

he affairs of the

Newcastle and Northern Branch

OE the Union are oppressive,

unreasonable or unjust. I reject the submission.

It was also submitted that

if the rules permit

the employment of Mr. Murray Bennett and

are not invalid

as being contrary to sub-section

140(1) of the Act, the

decision of the Committee

of Kanagement to employ Mr. Bennett

was not made bona fide.

I have not found it easy to under-

stand the basis for this submission as

the applicant in

evidence expressly disclaimed any intention on his part to

impute mala fides to the members	of the Committee of
Management.

Reference was made to material concerning the

level of membership

of the Newcastle and Northern Branch

of the Union and its financial position

w th a view to

showing that the financial position

of the Union had

improved since the decision was taken by

the Committee of

Management on 15 March 1 9 8 2 to terminate the services of

two organisers, including the applicant. In relation to

membership, it was said that there had been an increase

in numbers since

1 9 8 1 although it was conceded

not a very

large increase

( 6 , 1 5 9 in December

1 9 8 1 ,

6 , 7 3 4

in December

1 9 8 2 and

6 , 4 5 1 in September 1 9 8 3 ) .

There had been an

i nc rease in

members'

cont r ibu t ions from $158,042

i n t h e

s i x months

ended

31 December

1981 t o $196,245 i n t h e

s imi la r per iod

ended

December 1982.

There

had

been

an increase in the

Accumulated

Funds

Account

the branch

Erom $517,627 a s a t

31 December 1981 t o $595.484

as a t

31 December 1982

and

$656,282

a s a t

June

1983

(though

the l a t t e r f i g u r e Committee on 2 May

would

not have been available to the

1983) . Attent ion

was a l so drawn t o

the f ac t t ha t , a l t hough expend i tu re

exceeded

income

each of the three per iods of s ix

months ended

December

1980, 30 June

1981

and

December

1981

( t h e d e f i c i t

t o t a l l i ng $51 ,452) ,

income

exceeded expenditure

i n each

of the per iods of s ix

months

ended 30 June 1982, 31 December

1982

and

30 June 1983

(the

excess

totalling

$119,959).

Again

t h e f i g u r e f o r t h e

s ix months

ended

June 1983

would not have been avai labletothe

Committee on

2 May

1983.

A s

understood

i t

t h i s m a t e r i a l

was

r e l i e d

upon	to suppor t the conten t ion tha t the Conl i t tee of

Management

should,

in t h e l i g h t

the

improved

f i n a n c i a l

pos i t ion

the branch, have reinstated the appl icant as

an employed

organiser on

full-t ime permanent basis in-.

stead of employing	M r .	Bennett as	a temporary relief
organiser .

I n my

op in ion the mater ia l re l ied

upon

provides

no	bas i s fo r con tend ing tha t t he dec i s ion o f t he Comi t t ee

of Management was

not made bone f i d e .

The submiss ion r i ses

27 .

9 4 I .

no higher

than

saying

that

the

Cormittee

did

not

take

t h e d e c i s i o n t h a t ,

i n

the appl icant ' s v iew,

was

the proper

o r b e t t e r d e c i s i o n t o

make

in the circumstances.

F ina l ly ,

i t was

sa id

behalf of the applicant

t h a t N r .

Coulson as Branch Secretary had failed to put

a11

re levant mater ia l before the

Committee

Management when

it w a s considering what course

t o adopt i n t h e f a c e

M r .

C o l e ' s i l l n e s s

and

t h a t h e d i d n o t a c t i n

even

handed

way

i n

ensuring that Tersons, including the appl icant ,

who

might have been

in te res ted in of fe r ing themselves for

employment

temporary

r e l i e f o r g a n i s e r

were

informed

the vacancy

that they might ,

i f

they wished, apply

f o r

i t .

have already set out

what

Mr.

Coulson d i d

following

upon

his being informed of

M r .

Co le ' s i l l nes s

culminating i n the dec i s ion

t h e Committee of Management

t o employ M r . Bennett.

But

even

i f one

accep t s

t ha t

Coulson should have enquired of the applicant whether

he was knowledge t h a t M r .

in t e re s t ed in the pos i t i on (no twi ths t and ing the

Coulson had

t h e o f f e r

which had been'

made

t o him by

the Secretary of the

West Australian Branch)

and,

i f he were,

t o p u t h i s

name

forward for cons idera t ion

the

Committee of Management,

the

f a c t t h a t

he f a i l ed to

does not es tab l i sh tha t the

Committee

acted otherwise

than bona fide.

28.

In the result the rule to show cause should

be discharged.

I certify that this and the

twenty-eight (28) preceding

pages are a true copy of the

Reasons for Judgment of the

Honourable Hr. Justice Neaves.

s.4

Associate

Dated: 31 October 1983.

29.

[1983] FCA 304

31 Oct 1983