Reid v Corsetti
[1997] IRCA 107
•05 March 1997
DECISION NO:107/97
CATCHWORDS
INDUSTRIAL LAW - Rules to show cause - UNION ELECTIONS - Interim orders to prevent steps to stop conduct of election - Construction of rules of union
Workplace Relations Act 1996 s 209
REID v CORSETTI and Others
VI 1272 of 1997
Before: NORTH J
Place: MELBOURNE
Date: 5 MARCH 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
VI 1272 of 1997
B E T W E E N :
JAMES REID
Applicant
AND
J. CORSETTI, J. SPEIGHT, R. GARDNER, P. GIBBONS,
T. RYAN, G. LARKIN, G. TIERNEY, E. SNELL, M. BROWN,
K. DAVIS, S. PINWELL, B. SMIDDY, N. ROBERTSON, S. BELL, S. DODD, L. FARRUGIA, J. SUTCLIFFE, C. ANEVSKI,
C. FRIZZIERO, R. BEITSEEN, S. McGRATH, I. PLOWMAN,
J. VERNER, K. ELLIOTT, M. BOLAND, J. CADDY,
M. RATTIGAN, C. JOHNSON, V. THEUMA, P. WISNIEWSKI,
J. DE KAUWE, C. MARMARA, H. DAVIS, B. HIGGINS,
M. CASSAR, J. DALE, R. MORRIS, L. PHELAN, J. MURRAY,
C. KUHLE, Z. CURAK, A. DIAS, G. THOMPSON, B. PETERS,
E. ELSHOMOUNY, V. PEPI, J. REID, A. MAYNE, N. LONG,
P. ABRAHAMSON, A. ADAMS, M. ADDISON, A. ANDERSON,
G. ANDRISKE, C. ARCHON, F. ARGONDIZZO, S. BAILLIE,
R. BARLETT, A. BATTERN, R. BEITSEEN, G. BERNARD,
G. BORRELLI, G. BRANCA, R. BROOKS, K. BROOKS,
A. BROWN, R. BUCKLAND, D. CALDERWOOD, J. CAMPBELL, R. CASEMORE, H. CHIZARI, A. CLOUVAS, A. COLEBROOK,
F. CONLON, R. CONNORS, L. COSMAVICH, L. CROWLEY,
J. CUMMANDO, M. DE LA RUE, I. DOMONEY, J. DOUGLAS,
B. DRIVER, F. EIFFE, P. ENGLISH, F. FAIRLEY, N. FLOWERS, N. FOSTER, G. GAZELLE, A. GEMETZIS, S. GILES,
T. HANCOCK, P. MEAPHY, R. HOLLAND, M. HOWORTH,
N. IVANCIC, E. JACKSON, A. KALPIS, P. KENNETT, D. KING, L. KING, J. KLEPNER, R. LANDER, V. LE BROCO,
R. LEONARD, G. LESLIE, M. LIGHT, S. LOHNER, R. LYLE,
M. MAGREE, J. MAVRODIS, E. MAYWOOD, J. MAZEY,
S. McILVAIN, S. McCALLING, J. McCARTHY, B. McHARG,
B. MEGENNIS, R. MERLIN, M. MINNITI, B. MITCHELL,
G. MULHOLLAND, S. MURTAGH, R. NASH, D. NELSON,
C. ORMSBY, C. PEARSE, A. PHAN, C. PHILPOTT, M. QUIRK,
P. RAYMENT, L. REID, P. REYNOLDS, A. RICHARDS,
P. RIDGEWAY, A. ROACH, S. ROGERS, D. SLEVIN, S. SIMMS, K. STAPLES, J. STEVENS, K. SYKES, S. TIMMINGS, A. TOFFI, D. TRASK, D. VAN DER HYDE, M. VILLANI, N. WILEMAN,
E. WILLIAMS, A. WILTON, R. YOUNG, A. YOUNG,
D. CAMERON, N. MARSHALL, P. JOHNSON,
J. SHARP-COLLETT, M. NICOLAIDES, I. JONES, R. KEATING, B. MOWBREY, J. CAHILL, J. McCARTHY, D. GOODGER,
D. OLIVER, J. ROYLE, M. McGILL, K. PECKHAM, F. BOGAR, D. SMITH, D. HARRISON, M. TUMBERS, P. NOACK,
P. BARKER, E. MINNIKIN and G. ADAMS
Respondents
MINUTES OF ORDERS
BEFORE: North J
PLACE: Melbourne
DATE: 5 March 1997
THE COURT ORDERS AND DIRECTS THAT:
Until the final hearing and determination of this proceeding or further Order, and upon the undertaking of counsel for Messrs Speight, Corsetti and Cameron to refrain by themselves or their servants or agents from taking any step whatsoever to:
(a)prevent or hinder James Reid from performing his duties as an Organiser with the Printing Division of the union, Victorian Region;
(b)hinder or prevent the payment of wages and the provision of all emoluments and facilities presently attaching to James Reid in the performance of his office as an Organiser;
the respondents Speight, Corsetti and Cameron and each of them:
(i)treat as null and void and of no effect the resolution of the National Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the union) of 27 February 1997 which is attached hereto as Annexure “A”;
(ii)refrain by themselves or their servants or agents from taking any steps whatsoever to:
a. request that the Industrial Registrar, Australian Industrial Relations Commission, change her decision of 2 January 1997 regarding the conduct of an election for the offices of Organisers (2) in the Printing Division, Victorian Region of the union;
b. request that the electoral official, Australian Electoral Commission change, alter or amend the conduct of an election for the offices of Organisers (2) in the Printing Division, Victorian Region of the union.
The proceeding be adjourned until 2.15 pm on Friday, 7 March 1997 for the hearing of the applicant’s claim for interim relief against all respondents other than Messrs Speight, Corsetti and Cameron and for directions.
That service of the Order made on 28 February 1997 on the respondents other than Messrs Speight, Corsetti and Cameron be effected by facsimile transmission to the National Secretary of the union at 136 Chalmer Street, Surry Hills, Sydney by 12 o’clock midday 6 March 1997. Such service is to be accompanied by a letter from the applicant’s solicitors to the respondents advising that the material upon which the applicant seeks to rely is in the possession of the National Secretary of the union and available for inspection through the National Secretary of the union.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
VI 1272 of 1997
B E T W E E N :
JAMES REID
Applicant
AND
J. CORSETTI, J. SPEIGHT, R. GARDNER, P. GIBBONS,
T. RYAN, G. LARKIN, G. TIERNEY, E. SNELL, M. BROWN,
K. DAVIS, S. PINWELL, B. SMIDDY, N. ROBERTSON, S. BELL, S. DODD, L. FARRUGIA, J. SUTCLIFFE, C. ANEVSKI,
C. FRIZZIERO, R. BEITSEEN, S. McGRATH, I. PLOWMAN,
J. VERNER, K. ELLIOTT, M. BOLAND, J. CADDY,
M. RATTIGAN, C. JOHNSON, V. THEUMA, P. WISNIEWSKI,
J. DE KAUWE, C. MARMARA, H. DAVIS, B. HIGGINS,
M. CASSAR, J. DALE, R. MORRIS, L. PHELAN, J. MURRAY,
C. KUHLE, Z. CURAK, A. DIAS, G. THOMPSON, B. PETERS,
E. ELSHOMOUNY, V. PEPI, J. REID, A. MAYNE, N. LONG,
P. ABRAHAMSON, A. ADAMS, M. ADDISON, A. ANDERSON,
G. ANDRISKE, C. ARCHON, F. ARGONDIZZO, S. BAILLIE,
R. BARLETT, A. BATTERN, R. BEITSEEN, G. BERNARD,
G. BORRELLI, G. BRANCA, R. BROOKS, K. BROOKS,
A. BROWN, R. BUCKLAND, D. CALDERWOOD, J. CAMPBELL, R. CASEMORE, H. CHIZARI, A. CLOUVAS, A. COLEBROOK,
F. CONLON, R. CONNORS, L. COSMAVICH, L. CROWLEY,
J. CUMMANDO, M. DE LA RUE, I. DOMONEY, J. DOUGLAS,
B. DRIVER, F. EIFFE, P. ENGLISH, F. FAIRLEY, N. FLOWERS, N. FOSTER, G. GAZELLE, A. GEMETZIS, S. GILES,
T. HANCOCK, P. MEAPHY, R. HOLLAND, M. HOWORTH,
N. IVANCIC, E. JACKSON, A. KALPIS, P. KENNETT, D. KING, L. KING, J. KLEPNER, R. LANDER, V. LE BROCO,
R. LEONARD, G. LESLIE, M. LIGHT, S. LOHNER, R. LYLE,
M. MAGREE, J. MAVRODIS, E. MAYWOOD, J. MAZEY,
S. McILVAIN, S. McCALLING, J. McCARTHY, B. McHARG,
B. MEGENNIS, R. MERLIN, M. MINNITI, B. MITCHELL,
G. MULHOLLAND, S. MURTAGH, R. NASH, D. NELSON,
C. ORMSBY, C. PEARSE, A. PHAN, C. PHILPOTT, M. QUIRK,
P. RAYMENT, L. REID, P. REYNOLDS, A. RICHARDS,
P. RIDGEWAY, A. ROACH, S. ROGERS, D. SLEVIN, S. SIMMS, K. STAPLES, J. STEVENS, K. SYKES, S. TIMMINGS, A. TOFFI, D. TRASK, D. VAN DER HYDE, M. VILLANI, N. WILEMAN,
E. WILLIAMS, A. WILTON, R. YOUNG, A. YOUNG,
D. CAMERON, N. MARSHALL, P. JOHNSON,
J. SHARP-COLLETT, M. NICOLAIDES, I. JONES, R. KEATING, B. MOWBREY, J. CAHILL, J. McCARTHY, D. GOODGER,
D. OLIVER, J. ROYLE, M. McGILL, K. PECKHAM, F. BOGAR, D. SMITH, D. HARRISON, M. TUMBERS, P. NOACK,
P. BARKER, E. MINNIKIN and G. ADAMS
Respondents
BEFORE: North J
PLACE: Melbourne
DATE: 5 March 1997
EX TEMPORE REASONS FOR JUDGMENT
Mr James Reid, the applicant, is an organiser with the Printing Division of the Victorian Region of the Automotive Food Metals Engineering Printing and Kindred Industries Union (the union). The union is an organisation registered under the Workplace Relations Act 1996 (the Act). The respondents are the members of the Victorian State Council, the Victorian State Conference and the National Council of the union.
Mr Doug Cameron is the National Secretary of the union, Mr John Corsetti is the State Secretary of the union, and Mr Speight is the State President of the union. Each of these three persons were represented by Mr Haylen QC who appeared with Mr Wallace. The other respondents have not yet been served. An election for two organiser positions in the region is under way. Nominations have closed. There are four candidates for two positions. The ballot opens on 28 April 1997 and closes on 20 May 1997.
On 24 February 1997, the Victorian State Conference resolved by postal ballot as follows:
“The Victorian State Conference determines not to fill the vacant Printing Division Organisers position at this time.”
On 27 February 1997, the National Council, by telephonic hook‑up, endorsed the resolution and authorised the National Secretary to take immediate steps to have the Registrar act on this decision. In a letter dated the same day, Mr Cameron asked the Deputy Industrial Registrar to withdraw the position of organiser from the election.
On 21 and 28 February 1997, the applicant obtained rules to show cause directed to the respondents seeking, inter alia, orders under s 209 of the Act that they treat as null and void the resolutions of the Victorian State Conference and the National Council. The applicant now seeks interim orders to prevent the respondents taking steps to stop the conduct of the election.
The primary argument of the applicant is that the power to appoint organisers to the Printing Division rests in the first instance with the Regional Council under r 49 sub-rule 14(a)(vi) and (c) which provide that:
“14(a)In each region there shall be constituted a Regional Council which shall consist of -
......
(iv)in states other than Tasmania such number of organisers as may be determined by Regional Council with the approval of the National Council.”
“(c)The Regional Council shall conduct and manage the business of the Printing Division within the region.”
He also relies on the terms of the equivalent rules relating to the other three divisions of the union, namely r 43 sub-rule 16(a)(v) relating to the technical and supervisory division, r 45 sub-rule 14(a)(v) relating to the vehicle builders division, and r 47 sub-rule 14(a)(vi) relating to the food and confectionery division. Each of these rules, it was contended, have the function of conferring the power to appoint organisers on a particular body. The same function should be seen as conferred in r 49 sub‑rule 14(a)(vi), although the body is different.
Mr Haylen contended that this argument is untenable, having regard to the structure of the union and the control vested in the state and national organs by the rules. He submitted that the role of r 49 sub-rule 14(a)(vi) was limited to permitting the Regional Council to determine the number of organisers who could be members of the Regional Council. There is force in this approach although it is not free from difficulties. Although the rule does not seem to allow the Regional Council to determine anything but the number of organisers, Mr Haylen suggested that it allowed the nomination of particular organisers from a larger group. Further, it is arguable that the control by the superior bodies in the union is preserved by the need for approval of the National Council.
Mr Haylen then argued that even if the applicant’s construction was correct, the Regional Council had not made a determination under r 49 sub‑rule 14(a)(vi) in the present case. The power of the National Council to approve the number of organisers under r 49 sub-rule 14(a)(vi) gave it the power to decide even in the absence of a determination by the Regional Council. It is arguable, however, that r 50 established six organiser positions upon amalgamation and that the number of positions could thereafter be changed only in accordance with r 49 sub‑rule 14(a)(vi) by determination of the Regional Council.
The applicant has made out an arguable case on the construction of r 49 sub‑rule 14(a)(vi). I now turn to the balance of convenience or, put another way, whether it is appropriate for the Court to intervene by way of interim orders.
In this application for interim orders it is not possible to assess which side will succeed at the final hearing. The balance of convenience does not fall clearly in favour of the applicant or the respondents Cameron, Corsetti and Speight. There is a cost saving in proceeding with the election for two organisers rather than conducting a separate election for one organiser later. The fact that the election has been commenced and is underway weighs a little in favour of its continuance. Finally, the chance that the outcome of the election may cause the parties to bring a practical end to the proceedings and thereby save further costs and inconvenience favours the grant of interim relief. I will, therefore make orders in the terms sought by the applicant.
I certify that this and the preceding
five (5) pages are a true copy of the reasons
for judgment of his Honour Justice North.
Associate:
Dated: 20 March 1997
APPEARANCES
Counsel appearing for the applicant: M. Bromberg
Solicitors for the applicant: Slater & Gordon
Counsel appearing for the respondent: W. Haylen QC
Solicitors for the respondent: Taylor & Scott
Date of hearing: 5 March 1997
Date of judgment: 5 March 1997
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