Rennie v Bunn (Includes Corrigendum Dated 18 April 1997)
[1997] IRCA 93
•18 April 1997
DECISION NO:93/97
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No QI 1422 of 1995
QUEENSLAND DISTRICT REGISTRY )
BETWEEN: GORDON ANDREW RENNIE
(Applicant)
AND: DAVID BUNN
(First Respondent)
AND: JOHN ANDERSON and MICHAEL CONWAY
(Second Respondents)
AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
(Third Respondent)
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No NI 1619 of 1996
NSW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: DAVID BUNN
(Applicant)
AND: GREG VINES, JAN McMAHON, DAVID ROBINSON & KAREN BATT
(Second Applicants)
AND: RONALD A. COOK
(First Respondent)
AND: BRIAN JARDINE and JANET GOOD
(Second Respondents)
AND: ANITA HAENFLER and MICHAEL TANDY
(Third Respondents)
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No NI 2100 of 1996
NSW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: JANET PAMELA GOOD
(Applicant)
AND: DAVID BUNN
(First Respondent)
AND: SEAN CURLEY, LEIGH DELANEY, PETER KEOGH, BOB TEYMANT, SUE CARLOS, JOHN ANDERSON, KAREN BATT, GREG VINES, DAVE ROBINSON, JAN McMAHON (all being members of the SPSF Federal Executive)
(Second Respondents)
AND: DAVE ROBINSON, SUE CARLOS, G. BARTIER, S. CURLEY, G. RENNIE, A. SNOW, C. MILES, H. BORRODALE, JOHN ANDERSON, KAREN BATT, PETER KEOGH, M. TRESEDER, D. GREEN, J. McMAHON, S. PINCHES, J. HADAWAY, D. ROBERTSON, R. TEYMANT, GRAHAM KELLY, BRIAN ELLIS, GREG VINES, LEIGH DELANEY, NEIL BAKER, D. ABBOTT (all being members of the Federal Council)
(Third Respondents)
AND: WENDY CAIRD, VICKY TELFER, SUE MOUNTFORD, MARK SEXTON, DOUG LILLY, SALLY O'LOUGHLIN, GREG VINES, KAREN BATT, DAVE ROBINSON, SUE CARLOS, JOHN ANDERSON (all being members of the National Officers Committee)
(Fourth Respondents)
AND: THE COMMUNITY AND PUBLIC SECTOR UNION
(Fifth Respondent)
CORAM: Ryan J
PLACE: Melbourne
DATE: 27 March 1997
REASONS FOR JUDGMENT
RYAN J: The Community and Public Sector Union ("the CPSU") came into existence on 1 July 1994 as a result of the amalgamation of the Public Sector, Professional, Scientific Research, Technical, Communication, Aviation and Broadcasting Union ("the PSU") with another federally-registered organization, the State Public Services Federation ("the SPSF"). After the amalgamation the rules of the CPSU recognized within the amalgamated organization a vertical division between the PSU Group and the SPSF Group. A national committee of management of the amalgamated CPSU, the National Officers Committee, is comprised of representatives from each of the PSU Group and the SPSF Group. The National Secretary of the PSU Group and the Federal Secretary of the SPSF Group are together the joint National Secretaries of the CPSU.
Rennie v Bunn and Others (QI 95/1422)
The applicant in proceedings numbered QI 95/1422, Mr Rennie, is the Assistant Branch Secretary of the Queensland Branch of the SPSF Group of the CPSU. He is also the General Secretary of the State Public Service Federation, Queensland Union of Employees, a Union registered under the Industrial Relations Act 1990 of the State of Queensland to which I shall refer hereafter as "the Queensland State Union". Historically, the Queensland State Union and State-registered unions in other States which have been autonomous analogues of the corresponding branches of the SPSF have been, and still are, known as "Associated Bodies".
On 8 December 1995 a rule nisi was granted by Spender J on the application of Mr Rennie calling on the respondents to the proceeding numbered QI 95/1422 to show cause why:
An order ought not be made, directing that the first respondent to perform Rule 42 of Chapter - SPSF Group Rules ("the SPSF Rules") by declaring that the motion appended to this order and marked `A' and voted upon by the Federal Council of the SPSF group of the third respondent by postal ballot be declared lost;
An order ought not be made, directing the first respondent to perform Rule 25B(vi) of the SPSF Rules by issuing a proper notification of the total number of votes to be exercised by each branch in accordance with proper audit certificates issued in accordance with the rules;
An order ought not be made, directing the second respondents to perform Rule 25B(a) to vote as federal councillors in accordance with a resolution of the Queensland Branch of the third respondent (passed 10 October 1995) that those second respondents vote against the motion appended to this order and marked "A" ("the federal motion").
In the alternative, an order not be made, that the vote on the federal motion be declared void.
The operative part of the motion referred to in paragraph 1 of the rule nisi was preceded by a number of recitals recounting various aspects of the history leading to the amalgamation of the PSU and the SPSF and was in these terms:
Commencing from 1 December 1995, the annual subscription for membership of the Union which shall be payable by SPSF Group Members shall be $185.04 per member payable in monthly instalments in arrears in the sum of $15.42 per member PROVIDED THAT if a member is liable to pay subscription or membership fees of less than $185.04 per annum for membership to an Associated Body, then the annual subscription which shall be payable by each such member for membership of the Union shall be $90.70 payable in monthly instalments in arrears in the sum of $7.50 FURTHER PROVIDED THAT the preceding proviso shall not operate if the Associated Body has reduced the relevant subscriptions to less than $185.04 on or since 1 July 1995.
That the annual subscriptions fixed pursuant to paragraph 1 shall continue to apply until a new rate is fixed pursuant to the Rules.
That the annual subscriptions of the Union fixed pursuant to paragraph 1 shall be dealt with as follows:
a]out of subscriptions paid by any member of any of the Signatory Bodies $15.00 per year will be retained in the Federal Fund and the remainder shall be dealt with in accordance with the Rules and the relevant provisions of the Deed; and
b]out of subscriptions paid by any other member of the Group $15.00 will be retained in the Federal Fund and the remainder of those subscriptions shall be paid to the Branch Fund of that member's Branch and no part of such subscriptions shall be applied directly or indirectly towards any payment to, for or on behalf of any of the non-Signatory Bodies which has not entered into a legally binding arrangement with the CPSU as to the treatment of members and subscriptions unless such payment is a payment for services provided by that Body to the Union at the Union's request.
Any reference to the non-Signatory Bodies in clause 3(b) of this Motion includes any legal entity outside the Union which is controlled or partly-controlled by any of the non-signatory Bodies.
This resolution supersedes the resolution of Federal Council on 26 September 1995:
"That Federal Council resolves that the existing arrangements for payment of a fixed sum per member per year to the Federal Secretary be continued but that the sum be varied to $16.11 per member per year until further resolution of the Federal Council. Of this amount $1.11 will be retained for Branch expenditures, and $15.00 will fund the Federal Fund".
The motion was put to a postal vote of members of the Federal Council pursuant to Rule 42 of Chapter C - SPSF Group Rules of the Rules of the CPSU ("the SPSF Group Rules"). Rule 42 provides:
POSTAL BALLOT OF FEDERAL COUNCIL
A.Any decision which under these rules may be made by Federal Council in meeting assembled (including without limiting the generality of the foregoing the addition to or amendment or rescission of any Federal Rule or Rules by Federal Council) may be made by post in accordance with this rule and any decision so made shall be valid and effectual for all purposes.
B.A postal ballot shall be held whenever so decided by Federal Council, Federal Executive, the Federal President or Federal Secretary or whenever requested of the Federal Secretary by any two Branches and shall be conducted by the Federal Secretary.
C.For the purpose of this rule each member of Federal Executive or Federal Council (as the case may be) shall be forwarded by pre-paid registered post or by telegram a copy of the question upon which that member's vote is required together with advice of the period in which the member is to record a vote being:
(i)If the question requires the exercise of Federal Council's powers under Rule 26(i), 26(ii) and 26(iii) not less than 30 days; and
(ii)In all other cases not less than 14 days.
D.In any postal ballot of Federal Council, delegates shall be entitled to exercise the same number of votes as they would be severally entitled to exercise upon questions for decision by Federal Council in meeting assembled.
E.No decision by postal ballot shall be effective on any question unless within the time appointed by the Federal Secretary or Federal President in forwarding the question upon which the delegates votes are required:
(i)in the case of a postal ballot conducted as a result of a decision of Federal Council or Federal Executive no less than a majority of the total votes exercisable by delegates to Federal Council have been exercised thereon;
(ii)in the case of a postal ballot conducted following and in relation to a decision of Federal Executive made by telephone or telephone hook-up pursuant to Rule 31B, no less than a majority of the total votes exercisable by delegates to Federal Council have been exercised thereon;
(iii)in any other case no less than 75 percent of the total votes exercisable by delegates to Federal Council have been exercised thereon.
F.This rule shall be construed liberally so as to facilitate its operation as a means of obtaining prompt decisions of Federal Council in matters in which it is or may be thought to be desirable to obtain decisions expeditiously and in matters in which a substantial degree of consensus is known or believed to exist among members of Federal Council.
G.In any ballot of Federal Council held after 1 July 1995 the delegates from a Branch or Special Sub-Branch will not be entitled to exercise any voting entitlement unless it has complied with Rule 45 of Chapter C, or unless Federal Council determines in advance, in respect of that ballot, that the delegates may exercise those voting rights. For the purposes of voting on such a proposed determination by Federal Council the delegates from such a Branch or Special Sub-Branch shall not vote, provided that such Branch or Special Sub-Branch shall be heard before the vote is put.
By notification given on 16 November 1995, the respondent, Bunn, as Federal Secretary of the SPSF Group, advised that the postal ballot which had closed on 13 November 1995 had been carried by 63 votes to 54. In an affidavit sworn 1 December 1995 Mr Rennie deposed that, at the time of the postal ballot, 124 votes were capable of being cast. He further deposed that, on 10 October 1995, the Branch Council of the Queensland Branch of the SPSF Group had passed a resolution "binding the Queensland State Branch Federal Councillors to vote against motion 3 on the issue of a national subscription rate". That resolution was said to have been carried by way of giving effect to Rule 25B of the SPSF Group Rules which provides:
DIRECTION OF BRANCH DELEGATES TO FEDERAL COUNCIL
For the purposes of these rules it shall be a Councillor's duty thereunder to vote or exercise the functions of a Branch Delegate to Federal Council in a manner which is consistent with a direction by the Branch which the Federal Councillor represents.
It is common ground that at the time of the postal ballot, delegates to Federal Council from the Queensland Branch of the SPSF were entitled, between them, to cast 20 votes. It is further accepted on all sides that delegates from the NSW Branch of the SPSF Group were, between them, entitled to, and did, cast 42 votes, all of them against the motion committed to a postal ballot of Federal Council. Mr Rennie further deposed that 7 of the available 124 votes were not cast and inferred from that fact, together with the other matters recounted above, that to achieve a total of 63 votes in favour of the motion at least one delegate from the Queensland Branch must have disobeyed the Branch Council's directive and voted for the motion. Mr Curley, the Secretary of the Queensland Branch of the SPSF Group, tended to confirm that inference when under cross-examination he acknowledged that in the postal ballot he had voted in favour of the resolution. However, the first respondent, Mr Bunn, who at the relevant time was Federal Secretary of the SPSF Group has deposed that two other Queensland Councillors, Conway and Anderson, had voted in favour of the motion the subject of the postal ballot.
It is not necessary to resolve the conflict of evidence on this point because, on any view, it is clear that one or more affirmative votes by Queensland delegates were critical to achieving a majority in favour of the motion. The question which therefore has to be resolved is whether that disregard of a resolution of the Queensland Branch Council had the effect of invalidating the result of the postal ballot of Federal Council. The resolution of the Queensland Branch Council had been carried at a meeting attended by 17 of the 18 Branch Councillors of whom 7 were Federal Councillors. It was an ordinary meeting of the Branch Council not preceded by any notice of a motion to bind Queensland Federal Councillors to vote in a particular way in the forthcoming postal ballot.
It was first submitted on behalf of the respondents in proceedings numbered QI 1422/95 that if r. 25B were allowed to bind Federal Councillors from a particular Branch in the way contended for by the applicant, it would contravene s. 196 of the Industrial Relations Act 1988 ("the Act"). That section provides:
The rules of an organisation:
(a)shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law;
(b)shall not be such as to prevent or hinder members of the organisation from:
(i)observing the law or the provisions of an award or an order of the Commission; or
(ii)entering into written agreements under an award or an order of the Commission; and
(c)shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust.
Mr Haylen QC who appeared with Ms Rudland of Counsel for the respondents pointed specifically to paragraph (c) and suggested that, by providing a mechanism for fettering the discretion of Federal Councillors from a given Branch, r. 25B was oppressive, unreasonable or unjust having regard to the objects specified as follows in s. 187A of the Act:
(a)to encourage the democratic control of organisations;
(b)to encourage members of organisations to participate in the organisations' affairs;
In this context, it was suggested that Federal Councillors could be assimilated to directors of a company who are obliged to act in the interests of the entity as a whole and not for a particular section or group of members or shareholders. Reference was made to McGee v Sanders (1991) 30 FCR 565 at 573. However, although Heerey J in that case recognised a parallel between the fiduciary duties owed by company directors and those owed by union officials, his reasoning was directed to whether a particular official had a right, for the purpose of carrying out his duties, to access to documents emanating from a committee of which he was not a member. Nor do I regard Baird v Kingham (1993) 51 IR 264 as advancing this part of the respondents' case. There it was suggested that a conflict of interest had arisen because some members of the Branch Management Committee ("BMC") had voted for their own appointment to paid positions as temporary organisers. Nevertheless, Heerey J, after referring to the duty of directors as agents of a company to avoid a conflict between its interests and their own personal interests, continued at 266:
However, it does seem clear that in the present case the rules not only permit but positively require that some members of the BMC shall hold office as officers of the Union. On its face it is difficult to see there could be a breach of fiduciary duty simply by reason of a member of the BMC being appointed to a paid office of the Union.
Similarly, in the present case, r. 25B positively requires that Federal Councillors should be amenable to direction, if and when one is given by the Branch which they represent, as to how to vote on a motion before Federal Council. Far from being antithetical to the democratic control of the organisation and the participation of members in its affairs, such a facility, which the rule contemplates shall only be used as the occasion is thought by the Branch to require, may positively conduce to the attainment of those objects.
Nor do I regard r. 25B as imposing an oppressive fetter on the right of Federal Councillors to seek to persuade the members of their Branch to adopt a policy which the Councillors favour on some matter arising for resolution by the Federal Council. It is not analogous to Rule 15 of the rules of the Professional Radio and Electronics Institute which provided:
No official or member of the Institute shall circulate or cause to be circulated any report which may be considered by the governing council to be detrimental to the well-being of the Institute or calculated to injure any member thereof.
A Full Court of the Federal Court held in Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 35 FLR 24 that Rule 15 unreasonably restricted the rights of a member to campaign against a policy of the governing council and seek election on the basis of an opposing policy.
McPaul v Williams (1990) 34 IR 288 to which I was also referred by Counsel for the respondents was similarly concerned with an attempt at censorship through the adoption of a resolution to the effect, amongst others, that:
No member of the State Branch of the Union shall assist in the distribution of any publication whether it be the `New Transporter' or any other journal or publication unless it is a publication that has been first approved by this Branch in writing.
Gray J indicated, at 294 that:
Such a power of censorship is incompatible with the object of encouraging the democratic control of organisations and the full participation by their members in the affairs of organisations...
The present r. 25B does not inhibit at all the expression of any views by Federal Councillors or any other members of a Branch. It simply ordains that, presumably after a full and frank exchange of arguments on a particular policy issue, the will of the Branch is to be given effect by those Councillors who represent it on Federal Council notwithstanding that they may entertain reservations or, indeed, espouse a contrary view.
An alternative argument advanced by Mr Haylen was that, for a direction of the kind contemplated by r. 25B to take effect, it must be given by the Branch in special or general meeting or by postal ballot. If the power to direct Federal Councillors were exercisable by the Branch Council, so the argument went, it could be exercised between meetings of the Branch Council by the Branch Executive pursuant to r. 17 of the SPSF Group Rules which provides:
Between meetings of Branch Council the management of the Branch shall be vested in a Branch Executive which shall be the committee of management of the Branch and pending the first meeting of Branch Council shall have all such powers except the power to make amend or rescind rules or any power expressly reserved to itself by decision of Branch Council.
That facility, on Mr Haylen's argument, could be exercised by a majority numbering as few as three out of a Branch Executive having the minimum number of five members required by r. 20. However, it is to be borne in mind that r. 13 reposes in each Branch Council supreme power in matters affecting a Branch alone, including the making, amending or rescinding of rules for the regulation and government of a Branch. By contrast, the rules do not provide at all that there should be an annual or any general meeting of the Branch as a whole. The postal ballot of members of the Branch to which Mr Haylen referred is provided for by r. 15D in these terms:
Twenty per cent of the financial membership of the Branch may by signing requisition or requisitions in common form in that behalf require that a postal ballot of all financial members of the Branch be held on any question set out in the requisition. Upon receipt of a requisition or requisitions in common form from not less than twenty per cent of the then financial membership of the Branch the Branch Secretary shall at once request the Branch Returning Officer to hold a postal ballot of all financial members of the Branch. The Ballot shall be held so as to conclude within four weeks of the date of the Branch Secretary's request. The result of the ballot shall, subject to these rules, bind all members of the Branch.
To limit the direction contemplated by r. 25B to one given after the holding of a postal ballot of members of a Branch in accordance with r. 15D would, I consider, unduly restrict the operation which the plain words of r. 25B give to that rule.
The Branch Council is required by r. 14 of the SPSF Group Rules to meet at least quarterly and at other times as the Branch Council or Branch Secretary shall deem necessary. As well, the Branch President and Branch Secretary acting together are empowered to convene special meetings of the Branch Council. At least seven days' notice of a meeting is required to be given to each member of Branch Council. I regard these provisions as precluding the Branch Executive from usurping the power conferred by r. 25B of directing the manner in which Federal Councillors are to vote because it is difficult to conceive of circumstances in which such a direction would have to be given and complied with in less than the seven days required to convene a meeting of Branch Council.
Finally in this context, Mr Haylen submitted that r. 25D should be construed as being merely directory and not mandatory. The distinction between directory and mandatory stipulations in legislative enactments has not been uniformly illuminating as the myriad collection of authorities analysed by the text writers attests. Different consequences may follow according to whether attention is directed to the obligations of persons on whom the power is conferred, to the duty imposed or to the consequences of non-compliance. In the present case, r. 25B is cast in terms of a "duty" to act consistently with a "direction" given by the Branch. In my view, that language imposes more than a mere discretion on a Federal Councillor whether or not to vote in the manner indicated by the Branch. When the direction is given, which may occur only rarely, the rule positively commands the Federal Councillor to comply with it.
It is true that neither r. 25B nor any other provision in the SPSF Group Rules indicates the consequences of non-compliance with a direction. That may reflect the reality that non-compliance by a particular Federal Councillor will not always affect the outcome of a ballot of Federal Council. However, that is not to say that a Federal Councillor's vote in disobedience of a direction by the Branch is to stand unaffected. In my view, the vote is invalid or vitiated in the sense used by Lord Wilberforce in delivering the opinion of the Board in Calvin v Carr [1980] AC 574 at 589 where it was observed:
The first issue arising in this appeal is whether the committee had any jurisdiction to enter upon the appeal. The plaintiff's proposition is that it had not, for the reason that the stewards' "decision" was, on the assumption stated, void. A condition precedent, it was said, of an appeal was the existence of a real, even though voidable, decision. This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships' opinion would be, if it became necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.
Similar reasoning in the present case would have the result that a resolution which a vote in disobedience of a direction by a Branch Council was effective in having carried may retain some effect or existence in law until declared void by a court of competent jurisdiction.
The present application for a rule nisi was made within 14 days of the declaration on 16 November 1995 of the result of the postal ballot of Federal Councillors. It was only the inability of the Court to accord the applicant a substantive hearing before his rule nisi became consolidated or intertwined with the other related proceedings discussed below, that has led to the delay in the resolution of the applicant Rennie's relatively straightforward claim. I therefore see no reason why, in the exercise of the Court's discretion, Mr Rennie should be refused the relief to which, I consider, he is otherwise entitled. Accordingly, subject to any further submissions which Counsel may make, I shall order that the rule nisi granted by Spender J on 8 December 1995 be made absolute to the extent of ordering that the first and second respondents perform and observe the rules of the CPSU by treating as null and void the purported resolution of the Federal Council of the SPSF Group declared on 16 November 1995 to have been carried by sixty-three votes to fifty-four. I do not consider it necessary in all the circumstances to make the other or alternative orders contemplated by the rule nisi.
Good v Bunn (NI 96/2100)
A rule nisi which I granted on 3 October 1996 called on the respondents, being members of the SPSF Federal Executive, Federal Council and National Officers Committee to show cause why, amongst others, orders should not be made that:
1.1Rule 44B(v) of the certified rules of the Community and Public Sector Union; Chapter C - SPSF Group Rules is contrary to Section 196(c) of the Industrial Relations Act 1988 as amended insofar as it contains the words underlined in Schedule D hereto.
1.2The firstnamed respondent (Bunn) perform and observe the rules of the Community and Public Sector Union ("the Union") by treating as financial members of the Union all persons, being members of the Union in respect of whom monies are currently being paid to the Union pursuant to arrangements for payment between any associated body and the Union.
1.3Alternatively the respondents perform and observe the rules of the Union by ceasing to regard members of the Union as unfinancial because of the failure of the Group and an Associated Body to arrive at an agreement required by the terms of currently certified Rule 44B(v) of Chapter C of the rules of the Union.
1.4The respondents, other than the lastnamed respondent Union, perform and observe the rules by recognising the following persons as officers and financial members of the New South Wales Branch of the SPSF Group of the Union.
Then followed a list of officers of the NSW Branch and four officers of the NSW Sub-Branch No. 1 of the SPSF Group.
Rule 44B(v) with the underlined passage ("the proviso") as described in par. 1.1 of the rule nisi is in these terms:
B.The entrance fees, subscriptions, levies and other fees payable by members of the Group may be paid:
(v)by an authority for deduction from salary of an amount equivalent to or greater than the amount payable by such members as entrance fee, subscriptions, levies and other fees to the Group under these Rules in accordance with an agreement between the member's employer and an Associated Body whereby the employer agrees to deduct subscriptions from the salary of candidates for membership or members of an Associated Body and to pay the same into a bank account in the name of the Associated Body or to the Associated Body, where there is an agreement between the Group and the Associated Body providing for the payment by the Associated Body to the Group from the moneys received in this way of the amount of the entrance fees and subscriptions payable by the members to the Group. Provided that as and from the date of the amalgamation between SPSF and PSU any such agreement with an Associated Body shall operate to give an authorising member financial status in the amalgamated Union only where the agreement requires payment in full by the Associated Body to the amalgamated union, the entrance fees and subscriptions payable under the Rules of the amalgamated body.
An examination of the history of the SPSF before its amalgamation with the PSU reveals that, until the end of 1991,
the Council of each Branch of the SPSF had power to impose and vary such fees, in addition to any entrance fees and subscriptions fixed by Federal Council pursuant to r. 26(ii) "as may be required for the provision of services by the Branch". The power conferred on the Federal Council by r. 26(ii) was a general one to "fix and from time to time vary the entrance fees and subscriptions payable by candidates for membership and members of the Federation".
In addition, the Federal Council had a specific power under r. 26(iii) to "fix and from time to time vary the amount and mode of payment of capitation dues payable by Branches to the Federal Fund and impose per capita levies on Branches and fix from time to time the amount of other contributions from Branches for the purpose of maintaining the Federal Fund".
At the same time r. 44 of the Rules of the SPSF afforded a facility for a member of an Associated Body to acquire and retain financial membership of the SPSF provided that he or she maintained financiality within the Associated Body and there was in force an agreement between the Associated Body and the SPSF obliging the Associated Body to pay to the SPSF an "approved amount". The relevant sub-rules were:
G. Any member who pays subscriptions to an Association recognised by these Rules as an Associated Body in an amount equivalent to or greater than the amount payable by such members as entrance fee, subscriptions, levies and other fees to the Federation under the Rules shall during the currency of an agreement between the Federation and such Associated Body providing for the payment of an approved amount by the Associated Body be and be deemed to be for all purposes of these Rules, a financial member of the Federation.
H.For the purpose of the rule "approved amount" means an amount in each case calculated by reference to the total amount of members of the Associated Body who have applied for membership in the Branch of the Federation established in the same State as the Associated Body multiplied by the entrance fees and subscription otherwise payable by each such member to the Federation under these rules.
One agreement of the kind contemplated by r. 44G quoted above was concluded between the SPSF and the PSA of New South Wales on 21 March 1978 in these terms:
AN AGREEMENT made the 21st day of March 1978 between THE STATE PUBLIC SERVICES FEDERATION (hereinafter referred to as the Federation) of the first part and the PUBLIC SERVICE ASSOCIATION OF NEW SOUTH WALES (hereinafter referred to as the Association) of the second part
WHEREASthe rules of the Federation provide that:
"Any member who pays subscriptions to an Association recognised by these rules as an Associated Body in an amount equivalent to or greater than the amount payable by such member as entrance fees and subscriptions to the Federation under these rules shall during the currency of an agreement between the Federation and such Associated Body providing for the payment of an approved amount by the Associated Body to the Branch of the Federation established in the same State as the Associated Body be and be deemed to be for all purposes of these rules a financial member of the Federation."
AND WHEREAS the Association is named as an "Associated Body" in the said rules of the Federation and the said rules define "approved amount" as follows:
"An amount in each case calculated by reference to the total amount of members of the Associated Body who have applied for membership in the Branch of the Federation established in the same State as the Associated Body multiplied by the entrance fees and subscriptions otherwise payable by each such member to the Federation under these rules."
AND WHEREAS the Association is authorised by its rules to enter into the present agreement
NOW IT IS HEREBY AGREED as follows:
The Federation will treat as financial members of The State Public Services Federation all members of the Public Service Association of New South Wales who have applied for membership in the Federation.
The Public Service Association of New South Wales will pay to the New South Wales Branch of the Federation the amount of the entrance fees and subscriptions that would be payable by such members to the Federation if this Agreement had not been made.
The payments to be made by the Association pursuant to the preceding clause hereof shall be subject to the following maximum payments: $5.00 per annum per member in respect of subscriptions, and $5.00 in respect of each entrance fee.
This Agreement shall commence on the first day of July 1977 and shall continue thereafter until terminated by six months' notice by either party thereto.
The existence of an agreement to the effect of that which I have just reproduced was reflected in the practice whereby members of the PSA of New South Wales were encouraged to complete an application in the following form for membership of the New South Wales Branch of the SPSF:
I,___________________________________________________________________
of___________________________________________________________________
apply for membership in the State Public Services Federation and agree to be bound by the Rules of the Federation.
SIGNATURE_____________________________ Date _________________________
Please note: The PSA of NSW will pay to SPSF the monies payable in respect of membership of SPSF. There is no direct charge on a member
_____________________________________________________________________
At a meeting of the Federal Council of SPSF in December 1991 r. 26 was amended to confine the power of Federal Council in respect of contributions. The relevant provision was the new r. 26(ii) which empowered the Federal Council to:
Fix and from time to time vary the amount and mode of payment of capitation dues payable by Branches to the Federal Fund and impose per capita levies on Branches and fix from time to time the amount of other contributions from Branches for the purpose of maintaining the Federal Fund.
The corresponding new rule empowering each Branch Council to fix and vary entrance fees and subscriptions was r. 13(iii) and (iv) which provided:
13.POWERS OF BRANCH COUNCIL
The affairs of each Branch shall subject to these rules be managed by a Branch Council which shall have power to control and manage the business and affairs of the Federation in the State in which the Branch is established (or to that part of the Federation in the State of Queensland as is prescribed in Rule 63) subject always to these rules and to any lawful direction of Federal Council or Federal Executive and without limiting the generality of this power shall have power to:
...
(iii)Fix and from time to time vary the entrance fees and subscriptions payable by candidates for membership and members of the Federation attached to the Branch.
(iv)Impose levies on members attached to the Branch;
At the same meeting, r. 44 governing the mode of payment of entry fees, subscriptions, levies and other fees payable by members of the SPSF was amended to read:
44.ENTRY FEES, SUBSCRIPTIONS, LEVIES AND OTHER FEES
A.The entrance fees, subscriptions, levies and other fees payable by members of the Federation shall be paid to the Secretary of the Branch in the State in which the member's employer is located or if there is no Branch established in the State in which the member's employer is located then to such person or in such mode as Federal Executive or Federal Council may decide.
B.The entrance fees, subscriptions, levies and other fees payable by members of the Federation may be paid:
(i)at the office of the Branch;
(ii)to a collector authorised by the Branch Secretary;
(iii)by an authority for deduction from salary and payment to the Branch Secretary;
(iv)by an authority for deduction from salary in accordance with an agreement between his employer and the Federation or the officers of his Branch whereby the employer agrees to deduct subscriptions from the salary of candidates for membership or members and to pay the same into a bank account in the name of the Branch of the Federation or to the Branch;
(v)by an authority for deduction from salary of an amount equivalent to or greater than the amount payable by such members as entrance fee, subscriptions, levies and other fees to the Federation under these Rules in accordance with an agreement between the member's employer and an Associated Body whereby the employer agrees to deduct subscriptions from the salary of candidates for membership or members of an Associated Body and to pay the same into a bank account in the name of the Associated Body or to the Associated Body, where there is an agreement between the Federation and the Associated Body providing for the payment by the Associated Body to the Federation from the moneys received in this way of the amount of the entrance fees and subscriptions payable by the members to the Federation;
(vi)by an authority in accordance with an arrangement approved by the Federation or the officers of his Branch providing for payments by instalments deducted from a bank, building society, credit union or similar account at monthly or more frequent intervals.
C.Each Branch Secretary shall receive and deal with such moneys at all times in accordance with these rules.
D.All such moneys shall be forthwith deposited by the Branch Secretary to the credit of an account in the name of the Branch of the Federation maintained with a bank or a financial institution of a type which has been approved by the Federal Council as being appropriate for the investment of the Federation's funds.
E.All subscriptions shall be paid in advance.
If an authority is in effect for the deduction of a member's subscription from salary by arrangement with the appropriate employer then the member's subscription shall fall due by instalments in the first day of each pay period.
If a member has entered into an arrangement approved by the Federation providing for payment of subscription by instalments deducted from a bank, building society, credit union or similar account, at monthly or more frequent intervals then the member's subscription shall fall due by instalments on the first day of each payment period.
In all other cases subscriptions shall fall due by quarterly instalments on the 1st January, 1st April, 1st July and 1st October.
Where an authority for deduction from salary or an arrangement for deduction from an account ceases for any reason to be effective then the balance, if any, of the subscription for the current quarter shall become due immediately.
F.Levies shall be payable within one month of the imposition of the levy or such longer period as may be determined by the Council imposing the levy.
G.A member whose payments of entrance fees, subscription, levies or fines are not more than three months in arrears shall be a financial member.
It further seems that between 1979 and 1994 the SPSF was kept in the funds necessary to maintain its Federal Office, and, where appropriate, service Federal awards to which it was a party, by the prescription of a "membership subscription" or "capitation fee" after estimating the anticipated expenses of the Federal Office and dividing that amount rateably between the State Branches or Associated Bodies according to their actual or imputed numbers of members. Thus, in 1986, for example, Federal Council resolved that:
The annual subscription rate for membership of the Federation be fixed at $4.60 per annum to apply from 1 July 1986.
On 15 March 1995 Mr Bunn, as SPSF Group Secretary, gave notice that the following resolution would be submitted to Federal Council at its meeting to be held on 27 and 28 April 1995:
That Federal Council sets a capitation rate of $21.90 for the year calculated as follows:
Federal office/JNS operations 15.00
ACTU affiliation 1.95
PSI affiliation 1.20
Branch [25% of Federal Office operations] 3.75
Total21.90
The practice throughout the period from 1979 to 1995 appears to have been that each Associated Body, either directly or indirectly through the relevant SPSF Branch, paid a lump sum to the Federal Council equal to the capitation fee or annual subscription as fixed from time to time multiplied by the appropriate number of members. So it was that from time to time the PSA of New South Wales, the Queensland State Union and, probably, other Associated Bodies exhorted their members to take out membership of the SPSF which was said to be available to them "free of charge", "at no additional cost" or "at no extra cost".
As part of the scheme of amalgamation between the SPSF and the PSU, a memorandum of understanding ("the MOU") was entered into between the two organisations. That part of the MOU which dealt with income and newly accumulating assets stipulated:
From the day of amalgamation, and continuing on past 1 July 1996, all new income and newly accumulating assets will be the property of the new amalgamated union.
a)National basic subscription and capitation rates would be set by the Federally registered union;
b)Total subscription rates would be set by Branches;
c)Agreed % of Branches money would be guaranteed to Associated Bodies;
d)A reasonable timetable will be established to transfer the collection of subs from Associated Bodies to the Branch of the Federal Union, and the deeds executed between the Federal Union and the Associated Bodies will bind the latter to collect the full subscription as agent of the Federal Union (from the day of amalgamation).
The scheme of amalgamation also proposed that the existing rules of the SPSF would be preserved in Chapter 6 of the rules of the amalgamated organization. However, r. 44B(v) set out above was proposed to be amended by the addition of the proviso which, I infer, became part of the registered rules of the CPSU on 1 July 1994.
After a postal ballot of Federal Council, the result of which was declared on 26 June 1995, r. 13 of the SPSF Group Rules was amended to empower each Branch Council to:
(iii)Fix and from time to time vary the entrance fees and Branch union subscriptions payable by candidates for membership and members of the Group attached to the Branch, provided that at no time shall Branch union subscriptions be less than the national union subscriptions or capitation dues;
By the same resolution carried by postal ballot, r. 26 governing powers of Federal Council in respect of, amongst other things, capitation fees, levies and other contributions payable by the Branches to the Federal Fund was amended to empower Federal Council to:
(ii)Fix and from time to time vary the amount and mode of payment of capitation dues payable by Branches to the Federal Fund and in lieu thereof and from such time as it shall determine fix and from time to time vary the amount and mode of payment of national union subscriptions payable by candidates for membership and members of the Group;
By another amendment adopted at the same time, the definition for the purpose of determining the voting entitlement of delegates to Federal Council of "financial member" in r. 25B(iii) was amended to mean:
...those persons who are at 30 June in the relevant year:
a)SPSF Group members duly admitted to membership in accordance with the rules of this Chapter; and
b)financial members in terms of Rule 44 of Chapter C and who are financial members of the relevant Associated Body or of the relevant Branch, [provided that a person shall not be deemed to be a financial member if that person is more than three months in arrears in financial obligations to the Associated Body or Branch]; and
c)members in respect of whom the Branch or Special Sub-Branch has remitted national union subscriptions, capitation dues and levies to the Federal Secretary due under Rule 45 of Chapter C.
The postal ballot declared on 26 June 1995 also resulted in an amendment of r. 43(A) governing the control and composition of the Federal Fund and the adoption of a new r. 45 in these terms:
45 - SUBSCRIPTIONS, CAPITATION DUES AND LEVIES
A.Each Branch shall remit to the Federal Secretary national union subscriptions fixed by Federal Council and paid by members. Such remittance shall be made by the end of each month in respect of national union subscriptions paid in the preceding month.
B.Each Branch shall remit to the Federal Secretary capitation dues fixed by Federal Council. Such payments shall be made for the preceding quarter by 30 September, 31 December, 31 March and 30 June.
C.Any levy imposed by Federal Council or Federal Executive shall be expressed as an amount per member and shall be paid by the Branches within three months of the decision of Federal Council or Federal Executive being communicated to them and shall be recovered by each Branch as a debt due by each member of that Branch at the date when the levy was imposed.
D.Federal Council may approve variations to the dates by which payments are to be made as required by sub-Rules A, B and C for the purpose of giving effect to any terms of any legally binding agreement between the Unions and an associated body in respect to payment of capitation dues or national union subscriptions.
At the same time the following new sub-rules 31(D) and 42(G) were inserted to stipulate the consequences of non-compliance by a Branch with the new r. 45:
31(D)At any meeting or in any telephone or telephone hookup vote of Federal Executive held after 1 July 1995 the delegates from a Branch will not be entitled to exercise any voting entitlement unless the Branch has complied with Rule 45 of Chapter C, or unless Federal Executive determines, in respect of that meeting, or vote, that the delegates may exercise those voting rights. For the purposes of voting on such a proposed determination by Federal Executive the delegates from such a Branch shall not vote, provided that such Branch shall be heard before the vote is put.
42(G)In any ballot of Federal Council held after 1 July 1995 the delegates from a Branch or Special Sub-Branch will not be entitled to exercise any voting entitlement unless it has complied with Rule 45 of Chapter C, or unless Federal Council determines in advance, in respect of that ballot, that the delegates may exercise those voting rights. For the purposes of voting on such a proposed determination by Federal Council the delegates from such a Branch or Special Sub-Branch shall not vote, provided that such Branch or Special Sub-Branch shall be heard before the vote is put.
The rule changes resolved upon by the postal ballot of June 1995 were certified by the Industrial Registrar on 14 August 1995. It was pursuant to the restored power of Federal Council to fix "national union subscriptions" as conferred by amended r. 26(ii) that the proposed resolution submitted to a postal ballot in November 1995 which is discussed above in relation to Rennie v Bunn (QI 1422/95) was submitted to Federal Council.
The MOU which was concluded as a preparatory step to amalgamation contemplated that the amalgamated union would enter into binding arrangements with the various SPSF Associated Bodies. The relevant provisions in the MOU were in these terms:
The amalgamated union will seek to enter into binding arrangements with Associated Bodies of SPSF, possibly using legally binding deeds. Agreement to the proposed terms of these arrangements must be obtained from the Associated Bodies prior to the amalgamation ballot, with the terms of the arrangements being conditional on the amalgamation being approved and proceeding.
Matters to be covered in such arrangements would include:
the right of both Associated Bodies and the amalgamated union to be consulted and informed about decisions proposed to be taken, or taken, by the other party which impact upon their interests;
the formal arrangements for such consultation and coordination necessary between the Associated Body and the amalgamated union;
the retention of the accumulated assets by the Associated Bodies;
financial arrangements;
provision of information by the Associated Bodies in relation to members of the amalgamated union;
co-operation in industrial, organising and publicity work;
ongoing commitment to bring about an integrated structure for the amalgamated union and its Associated Bodies;
objectives of the federal union and the Associated Bodies both to encompass mutual aid and cooperation;
the objectives and rules of the federal union and the Associated Bodies will require each to refrain from acting in a manner damaging to the interests of the other;
the objectives and rules of the federal union and the Associated Bodies will prevent each from using their resources in the elections of the other;
the assets of the federal union and the Associated Bodies will be devoted to the interests of the members of the new union.
Despite considerable negotiations before and after the amalgamation date, no deed has been concluded between the Federal Office of the SPSF and the PSA of New South Wales or the Queensland State Union. However, a deed of the kind contemplated by the MOU has been executed by Associated Bodies in each of the States of Victoria, Tasmania, South Australia and Western Australia.
Mr Kenzie QC who appeared with Mr Kimber and Mr Walton for the applicant Good contended that agreements of the kind embodied in the document of 21 March 1978 could not be terminated before the period of notice specified therein or a reasonable period of notice had elapsed. In particular, it was argued that an agreement or arrangement of that kind could not be brought to an end by the SPSF Group's unilaterally effecting a massive increase in the national or federal subscriptions or capitation fees as the postal ballot resolution of November 1995 purported to do. In support of this argument, it was suggested that the word "amount" where last appearing in r. 44B(v) before the addition of the proviso should be construed as meaning "amount agreed between the SPSF and the relevant Associated Body".
In a sense this construction is self-obvious but it does little to advance the applicant's argument. The reference in the rule to "fees and subscriptions payable by the members to the Group" must be to the fees and subscriptions fixed as payable in accordance with the Rules of the SPSF as in force at the time when the fees and subscriptions are said to be payable. If the Associated Body is not, at that time, a party to an agreement requiring it to pay the fees and subscriptions so quantified, there is no agreement answering the description contained in r. 44B(v).
It is true that this construction may entail that the proviso is mere surplusage or, at best, inserted out of an abundance of caution. However, I do not consider that the construction contended for by the applicant which contemplates an agreement between the SPSF and the Associated Body under which the latter is to pay an amount agreed between the two bodies, can be reconciled with the text of the rule which speaks of "fees and subscriptions payable by the members". An agreement between the SPSF and an Associated Body could not, of its nature, effectively ordain anything about fees and subscriptions so described.
It was next submitted by Mr Kenzie that it was fundamental to the MOU that agreements with the Associated Bodies be concluded before the amalgamation day. However, it seems clear that no agreements of the kind contemplated by the proviso were in force before or upon amalgamation. Even subsequently, only four Associated Bodies, not being the PSA of New South Wales or the Queensland State Union, have concluded agreements of the requisite kind. As it was developed, the effect of this argument was really that a pre-existing agreement or arrangement could not be terminated except either with the consent of the relevant Associated Body as indicated by its acquiescence in an appropriate variation or after the expiration of an appropriate period of notice. In this context, it has to be borne in mind that the task of this Court is to determine whether the whole or a part of the Rules of the CPSU contravenes s. 196 of the Act. It is not to resolve a contractual dispute between the CPSU and one or more Associated Bodies.
It was perhaps in tacit recognition of this jurisdictional aspect of the case that Mr Kenzie next argued that the proviso was oppressive because it linked the financiality of members to the presence or absence of agreement between two entities, the Federal organization and an Associated Body, over which the members have no control and of whose actions they may have no notice. However, it is first to be observed that r. 44B(v), whether considered with or without the proviso, prescribes only one of several means by which the status of a financial member can be attained or preserved. Those ends can also be achieved by direct payments as indicated in sub-pars. (i) and (ii), by salary deduction where the employer is required to pay the amount directly to the SPSF Branch [sub-pars. (iii) and (iv)], by warrant to a bank or other financial institution [sub-par. (vi)] or directly or indirectly to an Associated Body where there is in force between the Associated Body an agreement of the kind stipulated in sub-par. (v) before the proviso [sub-pars. (vii) and (viii)].
In the second place, as indicated in the discussion above of the proceedings in Rennie v Bunn (QI 95/1422), the members of the SPSF Group have significant actual and potential control over the actions of the Federal Council through the presumed responsiveness to them of Branch Councillors to whose direction Federal Councillors are amenable, and through the facility of a postal ballot of members of a Branch on any question which is afforded by SPSF Group r. 15D. I presume, although their rules are not in evidence, that similar mechanisms operate to make officers of the PSA of New South Wales, the Queensland State Union and other Associated Bodies responsive to the wishes and interests of the rank and file members who comprise their electorates.
The point about notice of termination of an agreement of the kind contemplated by SPSF Group r. 44B(v) is partly met by the operation of par. G of r. 44 which prevents a member from becoming unfinancial until his or her fees and subscriptions are more than three months in arrears. Moreover, if notice of an event causing or threatening the loss of financial status is not given to a member by the officer responsible for the collection of fees and subscriptions, the organization may be estopped from denying financiality. However, it is unnecessary to explore that question further in these proceedings.
As an alternative to the attack mounted on r. 44B(v) and the proviso, Mr Kenzie directed attention to r. 26(ii) of the SPSF Group Rules which, it will be recalled, empowers the Federal Council to fix and from time to time vary capitation dues payable by Branches and the amount and mode of payment of national union subscriptions payable by members. It was submitted that an unfettered power of the kind apparently granted by that rule to increase subscriptions by as much as ten times their former level as purportedly achieved by the Federal Council resolution of November 1995 is oppressive because it allows the fee increase to occur and the method of preserving financiality to change without notice to members. The oppressiveness of the conduct permitted by r. 26(ii) was said to be exacerbated by the fact that, although members of Associated Bodies in New South Wales and Queensland had been rendered unfinancial at a blow and without their knowledge, money was still being collected by the Federal organization from their Associated Bodies in much the same way as from those Associated Bodies whose members' financiality had been preserved. Reliance was placed in this context on Prichard v Krantz (1984) 8 IR 404 where a Full Court of the Federal Court held that a rule which allowed the Branch Executive of a registered organization to "purge" its roll of members was not oppressive because it provided for the giving of notice to a member threatened with removal. Conversely, r. 26(ii), because it allowed a large body of members to be disenfranchised without notice, was said to contravene s. 196.
I consider that this alternative argument is met in part by the provisions of r. 44G which, as I have already indicated, prevents a member from becoming unfinancial until his or her fees or subscriptions have been in arrears for more than three months. If, contrary to the conclusion reached in the proceedings in Rennie v Bunn (above), the Federal Council resolution of November 1995 had taken effect according to its terms, even a member required to pay the maximum subscription of $185.04 per annum monthly in arrears from 1 December 1995 would not be more than three months in arrears and therefore unfinancial, until, at the earliest 1 March 1995. In that time it is reasonable to assume that some responsible officer of either or both the SPSF Group and the relevant Associated Body would have advised the member of his or her impending loss of financial status.
For these reasons, and in the light of the conclusions reached in Rennie v Bunn (QI 95/1422), I consider, subject to what Counsel may submit in speaking to the form of orders, that the rule nisi in Good v Bunn (NI 96/2100) should be discharged.
Bunn v Cook (NI 96/1619)
This proceeding was instituted by an application by Mr Bunn for an inquiry into an election for the office of Federal Secretary of the SPSF Group of the CPSU. Under the SPSF Group Rules, nominations for the election opened on 18 April 1996 and closed on 9 May 1996. There were two nominations, one by Mr Bunn and the other by Dr Brian Jardine who has been joined as second respondent to the application. Under the Rules, the election was required to be conducted so that the result of the ballot could be declared not earlier than 1 June 1996 and not later than 25 August 1996.
Mr Bunn initially complained that the role of voters adopted by the Returning Officer, the first respondent Mr Cook, included approximately 16,900 persons purportedly members of the Queensland Branch of the SPSF Group who may have been financial members of the Queensland State Union but who could not be regarded as financial members of the SPSF Group by virtue of any of sub-pars. (v), (vii) or (viii) of r. 44B of the SPSF Group Rules. In this context, Mr Bunn invoked the resolution of Federal Council purportedly carried by postal ballot and fixing a maximum annual subscription of $185.04 per member with effect from 1 December 1995. He pointed out that subscriptions in accordance with that resolution had been received in respect of only fourteen members of the Queensland Branch of the SPSF Group.
The ballot opened on 6 June 1996 and closed on 27 June 1996. On 21 June 1996, Madgwick J ordered, amongst other things, that the Returning Officer should proceed to count the votes in elections being conducted conjointly with that for Federal Secretary but should keep the ballot papers in the election for Federal Secretary separate and uncounted. On 5 July 1996 his Honour varied that order by directing the Returning Officer to count the votes in the election for Federal Secretary, but on 12 July 1996 directed that the Returning Officer should not formally declare the result of the election pending further order of the Court. The results furnished by the Returning Officer after conducting the count ordered by his Honour disclosed that votes distributed between the candidates by State were as follows:
Bunn
Jardine
Total
Western Australia
1960
2579
4539
Tasmania
735
878
1614
Victoria
3126
818
3944
South Australia
3604
1415
5019
New South Wales
2137
6386
8523
Queensland
1040
4352
5392
Total
12602
16428
2903
On 16 July 1996 an appearance was entered on behalf of Greg Vines, Jan McMahon, David Robinson and Karen Batt who were added as second applicants in the inquiry and who gave notice on 24 July 1996 of intention to contend that a further irregularity had occurred in that ballot papers had been to sent to all members of the New South Wales Branch of the SPSF Group notwithstanding that they were unfinancial in the same way as the great majority of members of the Queensland Branch had been contended by Mr Bunn to be unfinancial.
Evidence was gathered on behalf of the applicant after the commencement of the inquiry by conducting a sample examination of membership records related to persons who had originally joined the Queensland Professional Officers Association ("QPOA") which later amalgamated with the Queensland State Service Union of Employees ("QSSU") to form the Queensland State Union. That examination revealed that ten of those persons had not made application for membership of the SPSF. A similar examination of the records of persons who had originally joined the QSSU suggested that two of them had not made application to join the SPSF. The same search on behalf of the applicant disclosed that eleven persons in Queensland who had applied for membership of the SPSF had not been included on the membership rolls of the Queensland Branch of the SPSF.
Some explanations have been given tending to reduce or eliminate the effect of those discrepancies. However, in view of the conclusion which I have reached in Rennie v Bunn (QI95/1422) invalidating the 1995 resolution of Federal Council to increase the maximum annual subscription for members of the SPSF Group to $185.04, it can no longer be maintained that significant numbers of members from Queensland or New South Wales who were on the roll of voters were unfinancial and therefore not entitled to vote. Accordingly, having regard to the significant majority of votes in favour of Dr Jardine, I consider, again subject to any submissions of Counsel, that it is appropriate now to order only that the Returning Officer proceed formally to declare the result of the election and that the inquiry be otherwise terminated.
I certify that this and the preceding thirty-four (34) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
QI 95/1422
Counsel for the applicant Rennie: Mr L. Boccabella
Solicitors for the applicant Rennie: Quinlan, Miller & Treston
Counsel for the first respondent Bunn: Mr W. Haylen QC
with Ms N. Rudland
Solicitors for the first respondent Bunn: Geoffrey Edwards & Co
Counsel for the third respondent: Mr W. Haylen QC
The Community and Public Sector Union with Ms N. Rudland
Solicitors for the third respondent: Geoffrey Edwards & Co
The Community and Public Sector Union
NI 96/1619
Counsel for the first applicant Bunn: Mr W. Haylen QC
with Ms N. Rudland
Solicitors for the first applicant Bunn: Geoffrey Edwards & Co
Counsel for the second applicants: Mr H. Borenstein
Vines, McMahon, Robinson and Batt
Solicitors for the second applicants: Slater & Gordon
Vines, McMahon, Robinson and Batt
Solicitors for the first respondent Cook: Australian Government
Solicitor
Counsel for the respondents: Mr R.C. Kenzie QC
Jardine and Good with Mr M. Kimber
and Mr M.J. Walton
Solicitors for the respondents: Geoffrey Edwards & Co
Jardine and Good
Counsel for the respondents: Mr L. Boccabella
Haenfler and Tandy
Solicitors for the respondents: Quinlan Miller & Treston
Haenfler and Tandy
NI 96/2100
Counsel for the applicant Good: Mr R.C. Kenzie, QC
with Mr M. Kimber
and Mr M.J. Walton
Solicitors for the applicant Good: Jones Staff & Co
Counsel for the first respondent: Mr W. Haylen, QC
with Ms N. Rudland
Solicitors for the first respondent: Geoffrey Edwards & Co
Counsel for the second respondent: Mr W. Haylen, QC
with Ms N. Rudland
Solicitors for the second respondents: Slater & Gordon
Counsel for the third respondents: Mr W. Haylen, QC
(except G. Bartier, G. Rennie, with Ms N. Rudland
A. Snow, C. Miles and D. Green)
Solicitors for the third respondents: Slater & Gordon
(except G. Bartier, G. Rennie,
A. Snow, C. Miles and D. Green)
Counsel for third respondents: Mr L. Boccabella
G. Rennie, A. Snow and C. Miles
Solicitors for third respondents: Quinlan, Miller & Treston
G. Rennie, A. Snow and C. Miles
Counsel for the fourth respondents: Mr W. Haylen, QC
with Ms N. Rudland
Solicitors for the fourth respondents: Geoffrey Edwards & Co
Counsel for the fifth respondent: Mr W. Haylen, QC
with Ms N. Rudland
Solicitors for the fifth respondent: Geoffrey Edwards & Co
Date of Hearing: 9, 10, 11 and 12
December 1996
Date of Judgment 27 March 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No QI 1422 of 1995
QUEENSLAND DISTRICT REGISTRY )
BETWEEN: GORDON ANDREW RENNIE
(Applicant)
AND: DAVID BUNN
(First Respondent)
AND: JOHN ANDERSON and MICHAEL CONWAY
(Second Respondents)
AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
(Third Respondent)
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No NI 1619 of 1996
NSW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: DAVID BUNN
(Applicant)
AND: GREG VINES, JAN McMAHON, DAVID ROBINSON & KAREN BATT
(Second Applicants)
AND: RONALD A. COOK
(First Respondent)
AND: BRIAN JARDINE and JANET GOOD
(Second Respondents)
AND: ANITA HAENFLER and MICHAEL TANDY
(Third Respondents)
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No NI 2100 of 1996
NSW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: JANET PAMELA GOOD
(Applicant)
AND: DAVID BUNN
(First Respondent)
AND: SEAN CURLEY, LEIGH DELANEY, PETER KEOGH, BOB TEYMANT, SUE CARLOS, JOHN ANDERSON, KAREN BATT, GREG VINES, DAVE ROBINSON, JAN McMAHON (all being members of the SPSF Federal Executive)
(Second Respondents)
AND: DAVE ROBINSON, SUE CARLOS, G. BARTIER, S. CURLEY, G. RENNIE, A. SNOW, C. MILES, H. BORRODALE, JOHN ANDERSON, KAREN BATT, PETER KEOGH, M. TRESEDER, D. GREEN, J. McMAHON, S. PINCHES, J. HADAWAY, D. ROBERTSON, R. TEYMANT, GRAHAM KELLY, BRIAN ELLIS, GREG VINES, LEIGH DELANEY, NEIL BAKER, D. ABBOTT (all being members of the Federal Council)
(Third Respondents)
AND: WENDY CAIRD, VICKY TELFER, SUE MOUNTFORD, MARK SEXTON, DOUG LILLY, SALLY O'LOUGHLIN, GREG VINES, KAREN BATT, DAVE ROBINSON, SUE CARLOS, JOHN ANDERSON (all being members of the National Officers Committee)
(Fourth Respondents)
AND: THE COMMUNITY AND PUBLIC SECTOR UNION
(Fifth Respondent)
CORAM: Ryan J
PLACE: Melbourne
DATE: 27 March 1997
CORRIGENDUM
On page 36 (appearances page) in paragraph beginning "Solicitors for the respondents: Jardine and Good" delete "Geoffrey Edwards & Co" and substitute "Jones Staff & Co".
C. Fairfield
18 April 1997 Associate to Justice Ryan
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