Roughan, P.J. v Day, L.A.

[1990] FCA 671

Re: PATRICK JOHN ROUGHAN
And: LESLIE ALBERT DAY; TERENCE RICHARD HANNAN; WALTER CURRAN; JOHN L. RUDDER;
JOHN SWALLOW; GRAHAN WARREN and JIM L. READ
No. N I16 of 1990
FED No. 671
Industrial Law
34 IR 282

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Wilcox J.(1)

CATCHWORDS

Industrial Law - Rule amendments - Amendments to abolish elective office - Amendments not yet certified - Position of recently elected office bearer - Effect of amendments on position of office bearer after rules are certified by Industrial Registrar - Officer's entitlement to remuneration.

Industrial Relations Act 1988, ss.205, 209

HEARING

SYDNEY

#DATE 29:11:1990

Counsel for the Applicant: F.L. Wright

Solicitors for the Applicant: Geoffrey Edwards and Co

Counsel for the Respondent: W.R. Haylen, QC

Solicitors for the Respondent: Maurice May and Co

ORDER

The respondents perform and observe the rules of the Australasian Meat Industry Employees' Union:

(a) by treating as null, void and of no effect the resolution adopted by the Federal Executive of the said union at its meeting of 4 October 1990 which was entitled "Resolution re employment of Assistant Federal Secretary"; and

(b) by recognising the applicant, Patrick John Roughan, as Assistaznt Federal Secretary, and remunerating him in accordance with the resolution of the Federal Council of 6 September 1974, until such time (if ever) as the rule amendments adopted by the Federal Council of the said union at its meeting of 3-7 September 1990 are certified by the Industrial Registrar pursuant to s.205 of the Industrial Relations Act 1988.

Save as aforesaid the order nisi be discharged.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3))

JUDGE1

This case concerns the validity of a resolution of the Federal Executive of the Australasian Meat Industry Employees' Union ("the Union") relating to the employment of the applicant, Patrick John Roughan. The Union is an organisation registered under the Industrial Relations Act 1988. Mr Roughan brings the proceeding pursuant to s.209 of that Act, claiming that the resolution, which was passed on 4 October 1990, constitutes a breach of the Union's rules.

The facts

1. For many years the rules of the Union have made provision for an elective office styled "Assistant Federal Secretary". Rule 25.5(i) states that "(t)he election of Assistant Federal Secretary shall take place every fourth year." The sub-rule goes on to dictate procedures for the election of an Assistant Federal Secretary, all financial members being entitled to vote. The Assistaznt Federal Secretary is a member of the Federal Council of the Union - see rule 11(a) - and Federal Executive - see rule 14.

2. Upon a number of occasions the Federal Council has passed resolutions concerning the position of the Assistant Federal Secretary. On 10 September 1970 Federal Council decided that the weekly salary of the Assistant Fedeal Secretary should be fixed at an amount $20 less than the salary of the Federal Secretary. Plainly, the office was then seen as a full-time job. This position was maintained in 1974, when the method of computation of the Federal Secretary's wages was revised but the differential of $20 was retained.

3. On 23 February 1982 Federal Council accepted the resignation of the then Federal Secretary and appointed a successor, Mr J. O'Toole. Mr O'Toole had, apparently, previously been the Assistant Federal Secretary; hence his election caused a vacancy in that position. But Federal Council resolved that the position not be filled and that "the Federal Executive continue to monitor the real needs of staff requirements in consultation with the Federal Secretary."

4. On 29 October 1984 the applicant became employed in the federal office of the Union in a position styled "National Organiser". He attended Federal Council meetings in that capacity and apparently carried out some secretarial duties. But he was not elected as Assistant Federal Secretay; that position remained unfilled.

5. On or about 19 July 1990, Mr O'Toole directed Mr Roughan to write a letter in his name and on his behalf to the Industrial Registrar. Omitting formal parts, the letter read:
   

"As a requirement of Section 214 of the Industrial Relations Act 1988, I hereby notify you that in the week beginning 3rd September 1990, the Australasian Meat Industry Employees' Union during its Bi-annual Federal Council, will hold elections under the Collegiate electoral system to fill the following officers of the abovementioned Union:

1. Federal President

2. Vice President

the terms of office having expired at that time. There being a casual vacancy in the office of Federal Assistant Secretary, will necessitate this position being filled under the provisions of Rule 25 Part 5, Federal Rules of the Union."

1. Mr O'Toole wrote a follow up letter dealing with matters of detail on 8 August 1990. He made a statutory declaration concerning the circumstances of the vacancy on 17 August. On the same day Ms Wilma Spence, Deputy Industrial Registrar, decided that an election was required under the rules and referred the matter to the Australian Electoral Commission. On 24 August 1990 Mr N.P. Kean, a Returning Officer with that Commission, notified Mr O'Toole that he intended to call nominations for the office of Assistant Federal Secretary on 6 September, nominations closing on 29 September 1990.

2. The Federal President, Mr T.R. Hannan, learned of the situation and he wrote to Ms Spence requesting "that consideration be given to not proceeding with the election of an Assistant Federal Secretary of this Union on the basis that it has been foreshadowed that a rule change will be submitted by Federal Council to abolish the position of Assistant Federal Secretary forthwith". But Ms Spence spoke to Mr Hannan and told him that, as the rules had not yet been altered, the election decision would not be altered.

3. Federal Council met during the period 3-7 September 1990. During the course of that meeting it resolved as follows:
   

"1. Federal Council notes that the Office of Assistant Federal Secretary has not been filled since 1981 and having reviewed the functions, structure and cost of the Federal Office, resolves that the Office of Assistant Federal Secretary be abolished.

2. Federal Council in session alters the rules as follows:..."

1. There followed a series of amendments to the rules which, if they came into effect, would remove all rule references to the office of Assistant Federal Secretary.

2. Notwithstanding this resolution, Mr Roughan nominated for the position of Assistant Federal Secretary. No other nominations were lodged and, on 27 September 1990, Mr Kean declared Mr Roughan elected unopposed. In the meantime, the Federal Council resolution had apparently been sent to the Union's Branches. (Rule 46 requires the ratification of a majority of Branches of proposals for rule changes made by Federal Council.) On 28 Septemer 1990 Mr Hannan sent the amendments to Ms Spence, with a letter stating that the rule changes had been adopted by four of the Union's seven branches. He requested that Ms Spence "take whatever action is required to terminate the declaration" of the election; but, of course, the election had already been declared.

3. The Federal Executive met on 4 Octoer 1990. The meeting carried unanimously the following three resolutions:
   

"1. RESOLUTION RE EMPLOYMENT OF ASSISTANT FEDEAL SECRETARY 'Re: Federal Assistant Secretary. That the Federal Executive resolves that Comrade P. Roughan be advised that we are unable to employ him as Assistant Federal Secretary due to the lack of finances and the decision of Federal Council to abolish the position of Assistant Federal Secretary.'

2. RESOLUTION RE RULE CHANGE

'Re: Rule Change.

That the Federal Executive determines that the firm of Ryan Carlisle Thomas Needham be engaged to have the rule changes as adopted by Federal Council accepted by the Federal Industrial Registrar as soon as practical and that the Federal Executive be kept advised of the progress of the rule changes.'

3. RESOLUTION RE EXISTING EMPLOYMENT OF PATRICK ROUGHAN 'Re: The future employment of Patrick Roughan. That the Federal Executive in keeping with the Federal Council's resolutions advise Patrick Roughan that his current employment shall cease on 31st December 1990.'"

1. On 12 October 1990 Mr Roughan sought an order nisi, which was granted. The first order sought in the order nisi was that the respondents, who are the seven members of the Federal Executive other than Mr Roughan, "perform and observe the rules of" the Union "by treating as null void and of no effect" the first and third of the three resolutions which I have just set out. The applicant also sought an order restraining the respondents from acting upon, or otherwise taking any step in accordance with, those two resolutions. During the course of argument, when it became clear that the major issue between the parties was not the present position but the situation after the rule changes are certified - if they are - by the Industrial Registrar, counsel sought the following additional orders:
   

"3. That the respondents perform and observe the rules of the Australasian Meat Industry Employees Union by treating the applicant as holding the office of Assistant Federal Secretary as a full-time salaried office, irrespective of any certification by the Industrial Registrar of the proposed rule changes submitted to him on 28 September 1990.

4. Further to 3, a declaration that any certification by the Industrial Registrar of the proposed rule changes submitted to him on 28 September 1990 would not operate until the expiration of the current term of office of the applicant as Assistant Federal Secretary."

The present position

1. The amendments adopted by the Federal Council at its meeting of 3-7 September 1990 have not yet been certified by the Industrial Registrar. Accordingly, they are not yet effective: see s.205(1) and (3) of the Industrial Relations Act. At the present time the office of Assistant Federal Secretary continues in existence. Mr Roughan has been declared duly elected to that position and he is entitled to exercise the rights conferred by the rules upon the Assistant Federal Secretary. None of this is disputed by counsel for the respondents; but counsel argues that this does not entitle Mr Roughan to receive a salary. Counsel points out that rule 22(13) merely provides that the salary and conditions of the Federal Secretary and the Assistant Federal Secretary shall be decided by the Federal Council. It would be consistent with this provision to appoint a part-time Assistant Federal Secretary, he argues; there should not be an assumption of a full-time salary. Counsel relies on the 1982 resolution of Federal Council as a decision not to pay a full-time salary.

2. I agree that it would be open to Federal Council, even under the present rules, to make the position of Assistant Federal Secretary a part-time employment. The incumbent would be entitled to the rights conferred on him or her by the rules but a salary might be fixed upon the basis that he or she was not expected to put in a full working week. But the Federal Council has not taken that course. It seems to have regarded the position as a full-time employment. In 1970, and again in 1974, it fixed the remuneration of the office accordingly. It is true that, in 1982, the Federal Council resolved not to fill the position - a resolution which was in conflict with the rules - but it did not alter the salary and conditions of employment which had previously been fixed under rule 33(13). That salary and those conditions remained applicable as and when the position was filled, subject of course to any later variation of them. There having been no variation, Mr Roughan is entitled, as from the date of his election, to the salary and conditions of employment decided by the Federal Council on 6 September 1974.
   The future position

3. As I have said, the major issue between the parties is the position which will apply if and when the rule amendments are certified. It is common ground that the amendments will then come into effect, so that the office of Assistant Federal Secretary will be abolished. But counsel for the applicant contends thazt this will not affect his client's entitlement to continue as Assistant Federal Secretary for the remainder of the four year term for which he was elected. The reason, says counsel, is that to construe the amendments as having an immediate effect upon Mr Roughan's position would be to give the amendments a retrospective operation. He says that there is a presumption against construing rule amendments in such a manner as retrospectively to affect existing entitlements. Counsel refers to several authorities. The first of them, Davis v Pulp and Paper Workers Federation of Australia (1963) 8 FLR 277, concerned changes to an organisation's rules regarding eligibility for office. The amendments imposed more onerous qualifications than previously. The question arose, before the Commonwealth Industrial Court, whether they were intended to apply in respect of the time which had elapsed prior to their taking effect. Spicer C.J. and Eggleston J. thought not. At pp 280-281 they said:
   

"The rule of construction against retrospective operation which applies to statutes does not, of course, directly apply to the rules of an organization. But the rule applicable to statutes is based on the presumption that the legislature does not intend what is unjust ... and somewhat similar considerations must apply to the construction of the rules of an organization such as this, particularly where the injustice of the rule may be a statutory ground of invalidity. In our opinion, it would lead to injustice to apply the rule retrospectively, and we are therefore of the opionion that a failure to maintain the status of being 'continuously a financial member', as defined, during the period prior to the registration of the new rules cannot, on the true construction of the rules, be a basis of disqualification of a candidate for office."

1. The second decision mentioned by counsel was also made by the Commonwealth Industrial Court. It is Beeson v Blayney (1966) 8 FLR 292. The rules of an organisation were changed so as to substitute a term, for the office of Branch secretary-treasurer, of six years rather than three years. At the time when the amendment came into effect, an election for New South Wales Branch secretary-treasurer was in progress. The question later arose whether he was entitled to a term of six years or three years. The Court held the latter position to be correct. Joske J., with whom Spicer C.J. and Eggleston J. agreed, referred at p 294 to the "prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters."

2. The other two cases cited by counsel, Egan v Maher (1978) 20 ALR 421 and Re Mellor's Application (1987) 17 FCR 120, were each cases where rules relevant to elections were changed during the course of an election. In each case it was held that the presumption against retrospectivity should apply, so that the changes did not affect the current election.

3. On the other hand, as counsel for the respondents emphasises, the presumption against retrospectivity is only a presumption of construction. Where it is clear that a rule change was intended to have an immediate operation, and assuming that the relevant resolution or resolutions were not beyond power, made in bad faith or otherwise affected by invalidity, effect must be given to that intention. This is so even if the amendment will affect the tenure of an elected officer: see Bicknell v Amalgamated Engineering Union (1969) 15 FLR 215 at pp 222-224 and Saint v Australian Postal and Telecommunications Union (1976) 30 FLR 385. Both of these cases arose out of a reconstruction of the offices of a union. In the former case, the immediate operation of the new rule was implicitly assumed by the court. In the latter case the assumption was expressed. One question before the Australian Industrial Court was whether the rule changes effected a dismissal of certain elected office bearers, otherwise than on a prescribed ground. Dunphy and Evatt JJ. held that there was no question of dismissal. At p 393 they said:
   

"There is a great difference between abolishing an office altogether and dismissing a person from an office when that office is to continue. In our opinion an office might be abolished at any time provided such abolition is effected in accordance with the rules and is bona fide."

1. In the present case, the applicant expressly concedes that the resolutions of the Federal Council concerning his office, including the resolution supporting the rule amendments, were made in good faith. The form of the amendments is consistent with an intention that they should have an immediate effect. The amendments did not include any transitional provisions like those which were inserted in the Union's rules when the offices of Federal Trustee and Branch Trustee were abolished: see rules 22A and 55A. But,if there was any doubt about the Federal Council's intention, it is resolved by its first resolution that "the office of Assistant Federal Secretary be abolished", reasons being given which are consistent only with an intention that the amendments should have immediate effect.

2. In my opinion the presumption against retrospectivity does not avail the applicant in this case. If and when the rule amendments are certified, their effect will be to bring to an end the office of Assistant Federal Secretary and, with it, Mr Roughan's entitlement to occupy that office and to be renumerated in the capacity of Assistant Federal Secretary. He is not entitled to either of the additional orders 3 and 4 set out above.

3. The office of National Organiser is not an elective office or an office provided for by the rules. As counsel for the applicant accepts, there is no basis for the Court interfering in the decision of the Federal Executive to terminate Mr Roughan's employment as National Organiser.

4. The order to which Mr Roughan is entitled is one of limited application. I propose to order that the respondents perform and observe the rules of the Union by treating as null, void and of no effect the first resolution adopted by the Federal Executive on 4 October 1990 and by recognising the applicant as Assistant Federal Secretary, and renumerating him in accordance with the resolution of the Federal Council of 6 September 1974, until such time (if ever) as the rule amendments adopted by the Federal Council at its meeting of 3-7 September 1990 are certified by the Industrial Registrar pursuant to s.205 of the Industrial Relations Act.