Thompson, N.W. v Ludwig, W.
[1992] FCA 459
•18 JUNE 1992
Re: NEVILLE WILLIAM THOMPSON
And: W. LUDWIG and OTHERS
No. V I43 of 1991
FED No. 459
Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Black C.J.(1), Northrop(1) and Lee(1) JJ.
CATCHWORDS
Industrial Law - Registered organization - rules - performance and observance - whether appointed organizer an officer - power to remove officer from office - whether applicable to an appointed organizer - Rules of The Australian Workers' Union
Industrial Relations Act 1988 ss 4, 195, 209
Conciliation and Arbitration Act 1904 ss 4, 132, 133, 140
HEARING
MELBOURNE
#DATE 18:6:1992
Solicitors for the Appellant: Gill, Kane and Brophy
Counsel for the Appellant: Mr K. Bell
Solicitors for the Respondent: Holding Redlich
Counsel for the Respondent: Mr R. Hinkley
ORDER
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The order appealed from be set aside.
3. In lieu thereof it is ordered that the respondents and each of
them perform and observe the Rules of The Australian Workers' Union by treating as null and void and of no effect the resolution passed by the Victoria Branch Executive of the Union on 18 January 1991 purporting to remove the appellant from his office as organiser and the resolution passed by the Executive Council of the Union on 28 February 1991 purporting to dismiss the appeal of the appellant against that dismissal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from an order of a judge of this Court discharging a rule to show cause. The Rule called upon the respondents to show cause why an order should not be made that the respondents perform and observe the Rules of The Australian Workers' Union ("the Union") by treating as void and of no effect resolutions made by a Branch Executive purporting to remove the appellant from his office of organizer and a resolution of the Executive Council of the Union purporting to dismiss the appellant's appeal against that dismissal.
The appeal raises for consideration the nature of the power of the committee of management of a branch of the Union to terminate the employment of a person appointed, but not elected, to the position of an organizer. A subsidiary question is whether, on the facts of this case, there has been a valid exercise of the power in the purported dismissal of the appellant as such an organizer.
To understand the questions raised it is helpful at this stage to set out in summary form the relevant rules of the Union and the facts of this appeal. The Union is an organization under the Industrial Relations Act 1988. The Union is divided into branches and, for present purposes, it is sufficient to note that the affairs of each branch are managed by a committee of management called the Branch Executive. Rule 43 of the Rules of the Union confers powers and imposes duties on each Branch Executive. The Rule is headed "Powers and Duties of Branch Executive and Delegate Meetings". Reference is made to the following parts of Rule 43:-
"Branch Executives or Delegate Meetings shall have power to:
(a) Decide any question solely affecting such Branch which may arise within the Rules of The Australian Workers' Union.
(b) Make, alter or rescind any by-laws for the guidance of, and generally to have absolute control of the affairs of such Branch, subject always to the Rules of The Australian Workers' Union, resolutions of Convention, or decisions of Executive Council.
(c) Dismiss from office any Officer who has been found guilty in accordance with the Rules of the Union of misappropriation of funds of the Union or of a substantial breach of the Rules of the Union or of gross misbehaviour or gross neglect of duty or if such Officer has ceased according to the Rules of the Union to be eligible to hold such office. Any Officer so dismissed by the Branch Executive shall have the right of appeal to the Executive Council or to Convention against such dismissal. ....
No Branch shall interfere with other Branches in any way."
On its face, the power conferred by the words "generally to have absolute control of the affairs of such Branch" contained in Rule 43(b) is sufficient to enable a Branch Executive to appoint and to dismiss employees of the Union. That action would come within the affairs of that Branch. The power to dismiss, normally, would be subject to any express term of the appointment of the employee and to any statutory or award provision applicable thereto, but in the absence of any express term or statutory or award requirement, the employee could be dismissed at any time pursuant to the appropriate notice of termination or payment in lieu of notice or possibly without notice on the ground of misconduct. An employee so dismissed might have rights which could be enforced in the common law courts.
On its face Rule 43(c) confers an express power on a Branch Executive to dismiss from office any officer found guilty of any conduct specified in that paragraph. An officer so dismissed has a right of appeal to the controlling body of the Union itself. The nature of the power conferred by Rule 43(c), the question whether the applicant is an "officer" under that Rule and the question whether the Victoria Branch Executive exercised the power conferred by that Rule, are the essential issues raised by this appeal.
At all material times the appellant was a member of the Union. On 4 June 1990 the Branch Executive of the Victoria Branch of the Union appointed him an organizer within the Victoria Branch. The relevant minute of the appointment is as follows:-
"Hiring of New Officials
The question of new employees was raised. The new officials are: J. Stulpinas, A. Palma, A. Rix, A. Elliott, N. Thompson.
Moved that the following officials be appointed. J. Stulpinas - organizer A. Palma - organizer A. Rix - organizer N. Thompson - organizer A. Elliott - Office Manager/W.Care MOVED R. Smith, SECONDED J. Clarence
Carried Unanimously"
In the Rules of the Union, the word "organizer" is defined by Rule 89(k) to mean:-
"... a member elected in accordance with these Rules or appointed by a Branch Executive or Convention or the Executive Council to advocate the principles of unionism, to participate in the effective management of the affairs of the organization or Branch, to participate in the enforcement of the Rules of the Organization or Branch and to promote the organization and enrolment of members."
It is not disputed that upon his appointment as an organizer, the appellant became an organizer within the meaning of that word as defined in the Rules of the Union. Further, that definition makes it clear that in the Union there are two types of organizers - those elected and those appointed.
Rule 75 of the Rules of the Union is headed "Election and Control of Organizers". The whole of that Rule is set out:-
"(a) Prior to the date for calling nominations for the regular elections of Officers in accordance with rule 74 of these Rules, each Branch Executive shall determine the number of Organizers to be elected at such election.
(b) All organizers, elected or employed, shall in all cases conform to the direction of the Branch Secretary, District Secretary or Divisional Secretary by which they are employed.
(c) All elected Organizers shall be subject to removal from office pursuant to Rule 43."
A reference to Rules 41 and 74 makes it clear that the Branch Executive of the Victoria Branch of the Union comprises 9 persons being the President, 2 Vice-Presidents and the Secretary, who are called the Branch officers, together with 5 elected members. The officers and members hold office for 4 years and organizers are elected for a term of 4 years and no member of the Union is eligible to nominate for or to hold at any one time the office of organizer and any office on a Branch Executive except Branch President or Branch Vice-President. In the context of these Rules, it is clear that before the elections to be held every four years, the Branch Executive is required to determine the number of organizers to be elected at the following elections and persons so elected are properly described as elected organizers. They are also employees of the Union and are subject to the direction of the Branch Secretary. The phrase "elected organizer" is not defined by Rule 89 but in that Rule, the phrase "employed organizer" is defined to mean "a member employed and paid to work at the direction of the Branch Secretary". On the facts of this appeal, the appellant is not an elected organizer and thus does not hold that position for 4 years. He is an employed organizer having been appointed by the Branch Executive of the Victoria Branch for an unspecified period. The trial Judge so held and that finding has not been challenged.
As appears from the reasons for judgment of the trial Judge, on 17 January 1991 the Secretary of the Victoria Branch purported to dismiss the appellant for "gross misconduct in accordance with the rules". The appellant was given one month's pay in lieu of notice and one month's severance pay. It seems reasonably clear that the Secretary had no power to dismiss the appellant, but on the same day, the question of the dismissal of the appellant came before the Branch Executive of the Victoria Branch. The findings made by the trial Judge on this matter are as follows:-
"The applicant (the appellant) then requested that he be given the opportunity to raise the matter of his dismissal before the branch executive. The branch executive was meeting on that morning at 9.30. Some time after the meeting began, the applicant was invited into it. Mr Stulpinas (another appointed organizer) was already there. The branch president, Mr Fred Phillips, advised the applicant that Mr Stulpinas had already given an account of the conversation he had with the applicant on 14th or 15th January. The applicant asked whether he could be given an opportunity to hear from his accuser. Mr Phillips then asked Mr Stulpinas to repeat his account of the conversation. According to the applicant, the account given by Mr Stulpinas was similar to the applicant's own account of the conversation, but the conclusions which Mr Stulpinas drew from it were conclusions with which the applicant disagreed. The applicant then gave his account of the conversation and endeavoured to refute any suggestion that he was working against the interests of the Union. He claimed that he had been dismissed because he had voiced concerns about the administration of the branch. The applicant then left the room. It is unclear whether Mr Stulpinas also left. Mr Smith (the Branch Secretary) remained in the meeting. Mr Smith then moved that the action he had taken that morning in dismissing the applicant was justified, given the circumstances that led to it and, with the evidence that had been heard, that the action taken be upheld. This motion was seconded. A vote was taken. No votes were cast against the motion, but Mr Phillips wished to have it recorded that he did not support the motion. The applicant was then informed that the branch executive had upheld Mr Smith's decision to dismiss him."
In fact, it appears those events took place on Tuesday 18 January 1991, not 17 January.
There was argument before us about the source of the power the Branch Executive purported to exercise at the meeting held on 18 January 1991. The true position is not made clear by a reference to the subsequent minutes of the Branch Executive. The minutes of the meeting of the Branch Executive held on 12 February 1991, being the next meeting of that Executive, are in evidence. They disclose that the minutes of the previous meeting of the Branch Executive, being the meeting held on 18 January, were received. The minutes of the meeting held on 18 January are not in evidence but the minutes of the meeting of 12 February show, after the minutes of the previous meeting had been received, a heading "Matters Arising from Minutes". Under this heading the following appears:-
"Matters Arising from Minutes
Max Warnecke asked for a report on the Neville Thompson issue.
1. Secretary Smith reported that the Minutes are not an accurate record in the sense that the reported discussion suggests that the Branch Executive dismissed Thompson, whereas it was the Secretary who actually sacked him - Branch Executive subsequently supported this decision.
Fred Phillips raised the question of whether or not the Minutes should state the reason for Thompson's dismissal - i.e. misconduct.
It was agreed by Executive that the Minutes be amended to include additional words which more accurately reflect the deliberations of the last Branch Executive meeting. The Secretary then reported that N. Thompson has appealed to have his dismissal heard by the Executive Council. The matter has been listed to be heard by Executive Council on 28/2/91."
The minutes as received at the meeting are not before the Court, but the first paragraph of the passage set out makes it clear that it was the Secretary who "actually sacked" the appellant and the Branch Executive "subsequently supported this decision". What is in evidence before the Court is what is described as "Copy of substituted page 2 of the Minutes of the Meeting of the Branch Executive held on 18 January 1991 - 8 March 1991". This "copy" is as follows:
"Following the dismissal of N. Thompson by the Branch Secretary for misconduct N. Thompson was given the right to address the Branch Executive and following that the Executive decided that the action of the Branch Secretary in terminating Neville Thompson was justified. Neville Thompson was told immediately of the decision to endorse the Secretary's action and confirm the termination on the basis of (one month in lieu of notice and one month's gratuity). MOVED Bob Smith SECONDED Jim Collins that the action the Branch Secretary carried out on the morning of the 18th January 1991 was certainly justified given the circumstances that led to it and with the evidence that has been heard that the action taken be upheld.
Vote CARRIED - no votes were cast against the motion but the President wishes to have it recorded that he did not support the Motion."
The question whether the Secretary had power to dismiss the appellant was not decided by the trial Judge. In the reasons for judgment, his Honour said:-
"If the applicant were an "Officer", for the purposes of rule 43(c), that provision appears to be the only one which would enable him to be dismissed. His dismissal could only be effected by the branch executive, upon it making the requisite finding. Further, it is clear that the principles of natural justice would be implied into the provisions of the rule, so that the power to dismiss could not be exercised unless the applicant were afforded procedural fairness. On the other hand, if the applicant were not an "Officer", it seems that the general powers of the branch executive under rule 43(b) would provide sufficient power to dismiss him from employment. It was so held in Newton v. Hogan
(1971) 18 FLR 434, at a time when the rules gave an express power to the branch secretary to dismiss organizers in defined circumstances. It is unclear from the rules whether the branch secretary, who has a power under rule 48(a) to "exercise control over all employees", would have power to dismiss an employee in his own right. In the present case, however, Mr Smith's action was ratified by the branch executive."
Rule 48, referred to in that passage, confers many powers and imposes many duties on a Branch Secretary. Reference is made to 2 paragraphs of the Rule:-
"Subject to removal as provided in these Rules, the Branch Secretary shall hold office for four (4) years. The Branch Secretary shall:
(a) Act generally according to the instructions of the Branch Executive and be responsible for the administration of the Branch and shall exercise control over all employees. ....
(p) to dismiss any job representative whether appointed by the Organizer or elected by a ballot of members."
On the hearing of the appeal, it was not contended that the Branch Secretary had power to dismiss the appellant and in our opinion, having regard to the Rules of the Union, the Secretary did not have that power. It follows therefore, that the purported dismissal of the appellant by the Secretary was null and void and of no effect. In these circumstances, the question arises whether the resolution of the Branch Executive that the action taken by the Secretary, namely to dismiss the appellant, be upheld, is of itself a dismissal. Does that resolution constitute a dismissal of the appellant by the Branch Executive?
To return to the narrative of the facts, the appellant, apparently, considered he had been dismissed by the Branch Executive in the exercise of the powers conferred by Rule 43(c). He exercised the right of appeal to the Executive Council as provided for in that Rule. For present purposes, it is sufficient to say that the Executive Council, subject to the direction of Convention, has the general management of the affairs of the Union. The Executive Council is constituted by a President, a Vice-President for each Branch, a General Secretary and an Assistant General Secretary (all of whom are Executive officers of the Union) and one Councillor from each Branch. It is apparent, therefore, that the Executive Council is the committee of management of the Union. Each Branch Executive is the committee of management of the relevant Branch of the Union. The appeal was heard by the Executive Council at a meeting held on 28 February 1991. The Secretary of the Victoria Branch appeared at the hearing and objected to the proceeding on the basis that the appellant had not been dismissed pursuant to the powers conferred by Rule 43(c). The Executive Council did not accept the objection and determined the that the appeal should proceed. After the hearing of the appeal, a motion was moved and seconded as follows:-
"That the appeal lodged by Neville Thompson against his dismissal in the first instance by the Victoria Branch Secretary Robert Smith, and confirmed by the Victoria Branch Executive on the 18th January 1991, be upheld, and that the Victoria Branch Executive be advised of this and that Mr Thompson be reinstated forthwith"
After debate the motion was put and defeated. There was no formal resolution passed that the appeal be dismissed but before us the parties assumed that if a right of appeal existed, the appeal had, in fact, been dismissed.
At the hearing before the trial Judge, most attention was directed to the question whether the appellant was an "officer" within the meaning of that word appearing in Rule 43(c). Counsel, in submissions before the trial judge, and before us, contended that in construing the rules of an organization the Court should apply the principle that the rules "shall be construed not technically or narrowly, but broadly and liberally". More detail will be given later, but at present, it is sufficient to say that the Rules of the Union contain a provision that in the interpretation of the Rules, the word "officer", unless the context otherwise requires, shall include "appointed or employed Organizers (who were members of the Union immediately prior to becoming such)". Having regard to this provision, submissions were directed to support a contention that in Rule 43(c), the word "officer" should not be construed to include an appointed organizer who was a member of the Union immediately prior to being so appointed. These submissions relied upon a detailed examination of the history of the Rules of the Union and statutory provisions contained in the Conciliation and Arbitration Act 1904 and the Industrial Relations Act 1988. As a result, it became apparent that attention had been diverted from the source of the power relied upon in the dismissal of the appellant, who had exercised the power to dismiss the appellant, the proper relationship between Rule 43(b) and Rule 43(c) and the related aspects of the construction of Rule 43(c). It seemed to be assumed that Rule 43(c) contained an implied prohibition on the Branch Executive to dismiss a person who was an "officer" for the purpose of Rule 43(c) when in truth it was statutory provisions which prohibited the Branch Executive from removing from office certain classes of officers as defined in the legislation, while Rule 43(c) enabled the Branch Executive to remove those officers in conformity with Rule 43(c). At the same time, as the learned trial Judge concluded, the fact that the legislation prohibits the dismissal of certain classes of officers does not of itself prevent the Rules of the Union conferring the protection given to officers by Rule 43(c) on persons who are not within the classes of officers defined by the legislation. On the other hand, there seems to be nothing in the Rules of the Union to suggest that Rule 43(c) must be applied where a Branch Executive desires to dismiss an employee who is an "officer" under the Rules but not an "officer" within the meaning of the legislation.
Before turning to these issues it is desirable to identify the parties, their attitude to the appeal and a number of matters not in issue on this appeal. As we have noted, pursuant to s. 209 of the Industrial Relations Act the appellant sought an order that the respondents perform and observe the Rules of the Union by treating as null and void and of no effect "the resolutions made by the Branch Executive of the Victoria Branch of the Union on 18 January 1991 purporting to remove the (appellant) from his office of organizer and the resolution of the Executive Council of the Union of 28 February 1991 purporting to dismiss the appeal of the (appellant) against that dismissal". The respondents, W. Ludwig, J. Dunnery, M. O'Shea, F. Lake, V. Jacobs, E.J. Butler, B. Meiklejohn, I. Cambridge and M. Forshaw are members of the Union and thus are bound by the Rules of the Union. They are members of the Executive Council of the Union. They are represented by Messrs Turner Freeman, Solicitors. They were present at and participated in the appeal to the Executive Council. The respondents V.J. Keenan and E.R. Hodder are and were members of the Union and thus are bound by the Rules of the Union on 28 February 1991. They were members of the Executive Council and were present and participated in the appeal to the Executive Council at the time the appeal was heard. They no longer hold any relevant office in the Union. The respondents being the members or former members of the Executive Council did not appear on the hearing of the appeal. The other respondents are members of the Branch Executive of the Victoria Branch of the Union. They are members of the Union and thus are bound by the Rules of the Union. They were present at and participated in the Branch Executive meeting held on 18 January 1991. The respondent R. Smith is the Secretary of the Victoria Branch of the Union. At the hearing of the appeal the members of the Victoria Branch Executive were represented by Mr Hinkley of Counsel.
The trial Judge held that the appellant, being an appointed organizer, was not an "officer" within the meaning of that word contained in Rule 43(c) and thus was not entitled to the benefit of the Rule. The trial Judge also concluded that if Rule 43(c) did apply, the Branch Executive and the Executive Council were required to comply with the requirements of natural justice in exercising the power conferred by Rule 43(c) and that on the facts of this case neither of these committees had complied with the requirements of natural justice. Accordingly, his Honour indicated that if Rule 43(c) applied, the orders sought by the appellant should be made. On the hearing of the appeal, Mr Hinkley did not contest that conclusion with the result that no question of natural justice was debated before us. It was accepted that if Rule 43(c) applied and the Branch Executive exercised that power, then an order should be made against the respondents who constituted the Branch Executive.
In our view, the approach adopted by counsel was correct. It is perfectly clear that had Mr Thompson been an elected organizer he would have been entitled to procedural fairness because the Rule would plainly have applied to him and there is an implication from its terms and subject matter that the Rule itself imports a requirement of procedural fairness. It is on the basis of the implied requirements of such a rule of an organization that the Court has from time to time found that persons bound by the rules of the organization have not observed or performed those rules when they have dismissed a person from office without procedural fairness being accorded to him or her. The requirement being implicit in the rule concerned, these persons have been ordered to perform and observe the rules of the organization on the basis that procedural fairness was to be accorded to a person charged.
As we have noted, and as the trial Judge pointed out, there is nothing to prevent the rules of an organization giving rights beyond those that the Industrial Relations Act requires. Subject to the rules being otherwise valid, rules that give such rights are to be observed and may be enforced in the same way as any other rule.
If Rule 43(c), on its true construction, does apply to a non-elected organizer it does not merely provide a means of removing the organizer from the position in the Union to which he has been appointed but allows the termination of his or her contract of employment with the Union. It allows an organizer to be dismissed from office because he or she has been "found guilty in accordance with the Rules of the Union" of conduct that would properly be regarded as serious misconduct. The specified conduct includes misappropriation of the funds of the Union, gross misbehaviour and gross neglect of duty. A finding by a Branch Executive of the Union that a person who holds office in the Union has been guilty of gross misbehaviour and that he or she should be dismissed on that account is one that can obviously cause harm to a person's reputation and prospects of employment not only within the Union but quite possibly in the wider community. This is no doubt one of the reasons why the Rules provide for a right of appeal to the Executive Council of the Union or to Convention, which is the highest deliberative body of the Union (Rule 31(a)).
In these circumstances there is no reason to conclude that the implication of procedural fairness that is to be made when Rule 43(c) applies to an elected organizer is not equally to be made if the same Rule operates to confer power to dismiss a non-elected organizer upon him being found guilty of serious misconduct.
By letter, Messrs Turner Freeman notified the District Registrar of the Court that the respondents they represented, being the members of the Executive Council who had participated in the appeal on 28 February 1991, "are prepared to submit to such orders as the honourable Court deems appropriate in the appeal proceedings and for that reason those members of the Executive Council do not intend to engage legal representation in the proceedings".
Having considered the reasons of the trial Judge, we are satisfied that the Executive Council did not comply with the requirements of natural justice in dismissing the appeal of the appellant.
As we have said earlier, the essential issues raised by the appeal involve a determination of the nature of the powers conferred by Rule 43(b) and Rule 43(c), the proper construction of Rule 43(c) and whether the Branch Executive exercised any of the powers conferred by those Rules. In considering these issues it is important to consider the nature of organizations under the Industrial Relations Act. Such an organization is a corporate body and its affairs are controlled by rules which must be in conformity with the requirements of the relevant Acts. This is not a case which calls for an examination in any detail of the nature of an organization. It is sufficient to say that under its Rules the Union is divided into branches and powers are conferred on various committees of management. Thus the Executive Council is the committee which has the authority to exercise powers with respect to the whole Union. The Branch Executives are the committees which have the authority to exercise powers with respect to matters arising within the affairs of the Branch of which they are the Branch Executive. This is made clear by a reference to Rule 43(a), Rule 43(b) and the last paragraph of Rule 43 set out earlier in these reasons. In the present case, the Victoria Branch Executive has power limited to the affairs of the Victoria Branch. In this context, in considering the meaning to be given to the word "officer" in Rule 43(c), it is not helpful to consider any limitation that should be given to the word "officer" so as to confine the operation of the Rule to a particular Branch. Any limitation on the exercise of power derives from the power itself. The power conferred on a Branch Executive is limited to matters solely affecting the Branch. It is this limitation on power which prevents a Branch Executive from dismissing an officer elected by another Branch or elected to an office by the Executive Council.
The main contention of Mr Bell, counsel for the appellant, was that in Rule 43(c) the word "officer" was to be given the meaning ascribed to it by Rule 89 as including appointed organizers. That Rule is headed "Definitions" and the introductory words are:-
"In the interpretation of the Rules, the following words and expressions shall unless the context otherwise requires have the following meanings."
Sub-rule 89(f) provides that the word "officer" shall include the positions referred to in sub-rules (g) and (h). Sub-rule (g) specifies a number of positions at the Branch level but for present purposes, the relevant part of (g) is:-
"(g) 'Branch Office' shall include the positions of elected organizers."
Sub-rule (h) specifies a number of officers, not positions, and includes the persons who hold a branch office referred to in sub-rule (g), thus including elected organizers, specified federal officers, and appointed organizers. The parts of sub-rule (h) relevant to this appeal are set out:-
"(h) "Officer" shall include those persons who hold a "Branch Office" and shall also include ..... appointed or employed Organizers (who were members of the Union immediately prior to becoming such) ..."
There is much force in Mr Bell's contention. Looking at Rule 43(c), a Branch Executive has power to dismiss from office any officer guilty of conduct described in the Rule and any officer so dismissed has a right to appeal to the Executive Council against such dismissal. On its face, there is no reason why in Rule 43(c) the word "officer" should not be given the meaning specifically ascribed to it by sub-rule 89(h). The fact that employees, including officers, could be dismissed under Rule 43(b) does not, of itself, detract from that view.
Mr Hinkley contended that the context of the Rules of the Union required a different meaning to be given to the word "officer" appearing in Rule 43(c). He submitted that because of the "context" of the whole of the Rules of the Union, the word "officer" in Rule 43(c) should not be given the meaning ascribed to it by sub-rule 89(h) as including an appointed organizer, but should be limited to persons elected to an office. In support of this contention, counsel embarked on a detailed examination of the history of the relevant Rules of the Union and a reference to the various statutory provisions of the Conciliation and Arbitration Act and the Industrial Relations Act.
Part VIII of the Conciliation and Arbitration Act was in operation before and after 13 November 1973, being the date the Conciliation and Arbitration Act 1973, Act No. 138 of 1973, came into operation. Part VIII commences with s. 132 and contains provisions relating to organizations. Under sub-section 132(2) organizations had to comply with prescribed conditions. The majority of the prescribed conditions were those set out in Reg. 115 of the Conciliation and Arbitration Regulations. Under Reg. 115(1)(d) and (2) the affairs of an organization had to be regulated by rules providing for, among other things, the election of committees of management, officers and other bodies, the powers and duties of the committees and of officers and "(iv) the removal of members of the committees and of officers". The word "officer" was not defined in the Act or the Regulations. In s. 4 of the Act in operation immediately before 13 November 1973, the word "office", in relation to an organization or branch was defined to mean, in substance, an office for the filling of which an election is conducted within the organization or branch. The same meaning is to be ascribed to the word "office" when used in the Regulations. Thus, in the Act and the Regulations, normally the word "officer" would refer to a person holding an office as defined in s. 4. At the same time s. 133 of the Act prescribed other conditions that had to be complied with by organizations. For present purposes, it is important to note that at the relevant times, the Rules of the Union had to make provision for the removal of members of the committees of the Union and its Branches and of officers. It should be noted also that the word "officer" in Reg. 115(1)(d)(iv) would not include appointed organizers.
In the course of submissions, counsel referred to two judgments of the Commonwealth Industrial Court in which the then rule of the Union relating to organizers and their dismissal was considered. Those judgments are McKay v Oliver (1967) 15 FLR 39 and Newton v Hogan (1971) 18 FLR 435. At that time the relevant rule was Rule 64 which was headed "Election and Control of Organizers" and which remained in the same form until after the amendments made to the Conciliation and Arbitration Act in 1973. In some respects, the judgments are not consistent but they do set out Rule 64 and Kerr J. in McKay v Oliver sets out the history of that rule. It is interesting to note that in 1967 in the Rules of the Union, organizers were "officers" of the Union by reason of the definition of "officer" under r. 4(f) of the Rules of the Union - see McKay v Oliver per Kerr J. at p 46. It is not proposed to set out Rule 64 but we note that Rule 64 provided for both elected and appointed organizers and for their dismissal. The Branch Secretary had power to dismiss organizers in specified circumstances and an organizer had a right to appeal to the Branch Executive. In other cases, an appeal would be taken to the Executive Council. Each case involved the dismissal of an organizer, the first an elected organizer, the second an appointed organizer. In McKay v Oliver, there was no common ratio decidendi, but Kerr J. held that the Branch Executive had no power to dismiss an organizer except on limited grounds not applicable to the facts of that case. In Newton v Hogan, the Court held that the Branch Executive did have that power but the judgments did not refer to the reasons of Kerr J. in the earlier case but assumed a power. Those issues do not arise in this appeal, the reference to those authorities being to illustrate the similar rule of the Union relating to organizers and the fact that at one time a Branch Secretary had power to dismiss an organizer.
The 1973 Act made substantial amendments to the Conciliation and Arbitration Act. In s. 4, the definition of "office" was widened but essentially was limited to positions which were filled by an election of members of the organization or of a branch. It is possible that under the Rules of the Union then in force, the position of appointed organizer was an office within the definition set out in s. 4 by reason of paragraph (d) of the definition:-
"'Office', in relation to an organization or branch of an organization, means -
(a) ....
(d) every office within the organization or branch for the filling of which an election is required to be conducted within the organization or branch and any position within the organization or branch involving duties substantially similar to the duties of such an office;
(e) ..."
Under the Rules of the Union the duties of an appointed organizer were "substantially similar" to the duties of an elected organizer.
At the same time, s. 133 of the Conciliation and Arbitration Act was amended. A new sub-section (1) was inserted specifying the conditions to be complied with by organizations. The conditions included a condition that the rules of the organization:-
"(f) shall not provide for the dismissal from office of a person elected to an office within the association or organization unless he has been found guilty, in accordance with the rules of the association or organization, of misappropriation of the funds of the association or organization, a substantial breach of the rules of the association or organization or gross misbehaviour or gross neglect of duty or has ceased, according to the rules of the association or organization, to be eligible to hold the office."
It is noted that this requirement related to dismissal from office of a person elected to an office. Thus it would apply to an elected organizer within the Union but not to an appointed organizer. The statutory provision would apply even if the elected organizer were an employee. The statutory provision would have applied even if the rules of an organization permitted the dismissal of an employee without notice. The protection given to an elected officer arose from the legislation, not from the rules of the organization. The statutory provision was designed to resolve any possible conflict between the tenure of an elected officer and the removal from office of that person before the expiration of the term for which that person has been elected except on specified grounds. Those grounds of necessity would require the rules of natural justice to be applied with respect to the removal of such an officer. Again, it should be noted the statutory provision did not prevent an organization, by its rules, conferring similar protection to an officer, being an employee, but not elected to an office. It is noted further that under s. 133(3) an organization was allowed 12 months to bring its rules into conformity with this new requirement.
Within the 12 months period, the Union amended its Rules to enable the Union to dismiss elected officers in conformity with s. 133(1)(f) of the Conciliation and Arbitration Act. On 24 October 1974 a new Rule 58(c) came into effect, the wording being identical with the wording of Rule 43(c) except it did not make provision for an appeal, which provision was first inserted in March 1975. The form of Rule 58(c) and of Rule 43(c) is permissive in nature. Each rule confers a power but there is no room for the implication of a prohibition against the existence of a separate power to dismiss employees, whether officers or not, who have not been elected to office. The prohibition arose from the requirements of s. 133(1)(f) of the Conciliation and Arbitration Act aided by s. 140 of that Act. The fact that elected organizers may be removed from office under Rule 43(c) is made clear by Rule 75(c). Rule 75 is directed to the election of organizers and the source of control of organizers, whether elected or appointed. All organizers generally are required to conform to the direction of the Branch Secretary.
Nonetheless, organizers, whether elected or appointed, continued to be officers, by definition, within the meaning of that word when used in the Rules of the Union. The history of the definition of the word "officer" as including elected and appointed organizers is not before the Court. Rule 4 of the Rules in operation in 1973 became Rule 89 by rule amendments coming into effect in 1987 but since 1987 the definition of the word "officer" in the Rules of the Union has included elected and appointed organizers. At the same time, Rule 43 replaced the earlier Rule 58.
The present statutory provisions are s. 4 and s. 195 of the Industrial Relations Act. That Act came into operation on 1 March 1989. The word "officer" is defined in s. 4 to mean a person who holds an office in an organization or branch and the word "office" is defined to mean positions which are filled by election but there is room for argument that it may include a non-elected position. By s. 195(1)(c), the rules of an organization may provide for the removal from office of a person elected to an office only when the person has been found guilty, under the rules of the organization, of conduct similar to that referred to in s. 133(1)(f) of the Conciliation and Arbitration Act. Again, it is clear that this protection given to elected offices is not, by statute, given to persons who may be officers under the rules of an organization, but are not elected to an office.
For these reasons we do not consider that the examination of the history of Rule 43(c) leads to the conclusion that the defined word "officer" bears a meaning more limited than its defined meaning where it appears in Rule 43(c).
The trial Judge, having given detailed consideration to the competing arguments, considered that they were finely balanced. He said that in coming to the conclusion that the context of Rule 43(c) "otherwise requires" and that the definition of "officer" was not to be applied, he was swayed by the "branch" flavour of Rule 43 and the surrounding Rules, the absurd results that would follow in relation to the holders of national positions if the definition were applied, the unlikelihood that the framers of the Rules intended to give unelected organizers life tenure, and the provisions of Rule 75, despite their failure to refer to appointed organizers.
We have already indicated why, in our view, the "branch" flavour of the Rule does not require the definition of officer to be displaced and it was not contended before us that Rule 43(c) was an exclusive code for the dismissal of non-elected officers and we do not think it is. No question of life tenure therefore arises, in our view. We do not consider that the terms of Rule 75 show a sufficient indication that non-elected officers are to be excluded from Rule 43 as to require "officer" not to have its defined meaning and this is particularly so when it is borne in mind that Rule 43(c) has a protective function as well as an enabling function.
In these circumstances we are not persuaded that the word "officer" in Rule 43(c) should not be given its defined meaning. It follows that in our view the Branch Executive had power to dismiss the appellant in the exercise of the power conferred by that Rule, in which case the proper procedures required by the rule had to be followed and, if dismissed, the appellant had a right of appeal.
This conclusion, however, does not of itself mean that the dismissal of the appellant was unlawful and invalid. As was said earlier in these reasons, the Branch Executive had power to dismiss the appellant pursuant to the power conferred by Rule 43(b). The learned trial Judge, in his reasons, said:-
"... I hold that the applicant was not entitled to the protection which rule 43(c) gives to some officers against dismissal. He could therefore be dismissed by the branch executive in the exercise of its general powers under rule 43(b). Further, the last sentence of rule 43(c) did not give the applicant any right of appeal to the executive council. His dismissal was complete and effective on 18th January 1991, when the branch executive ratified Mr Smith's decision to dismiss him."
The reasons of the learned trial Judge do not enunciate why the dismissal was complete and effective on 18 January 1991. It is clear that the Branch Secretary had no power to dismiss the appellant. He purported to dismiss the appellant for "gross misconduct in accordance with the rules". That dismissal was void. Thereafter, the procedures followed were similar to those prescribed by Rule 43(c). In these circumstances can it be said that the dismissal was invalid if a valid dismissal could have been effected under a separate power? Mr Hinkley contended that this was an issue not raised at the trial and should not be relied upon now. He contended further that if it had been raised, further evidence may have been called directed to what was in the minds of the individual members of the Branch Executive when considering this matter. Questions arise whether this is permissible, but the Court expresses no opinion on that issue.
In this context, it is relevant to note the contentions of fact and law filed by the appellant and the respondents for whom Mr Hinkley appears, prior to the trial of this matter. We set out the relevant parts of the appellant's contentions and the answering contentions.
Appellant "13. On 18 January 1991 Smith purportedly dismissed the applicant for misconduct." Respondents "14. They deny paragraph 13 of the Contentions and say that the third named Respondent (Smith) did dismiss the Applicant for gross misbehaviour."
The words "gross misbehaviour" referred to by the respondents are the words used in Rule 43(c).
Appellant "14. The dismissal by Smith was in breach of the Rules and invalid because:-
(a) Smith had no power to dismiss the applicant under the Rules, under rule 43(c) specifically or at all; and
(b) in the alternative, the dismissal was in breach of the Rules of natural justice. PARTICULARS ...." Respondents "15. They deny subparagraphs 14(a) and 14(b) of the Contentions and do not admit (the particulars)." Appellant "15. On 18 January 1991 the Branch Executive purportedly dismissed the applicant." Respondents "16. They do not admit paragraph 15 of the Contentions but say that the Branch Executive confirmed the third Respondent's dismissal of the Applicant." Appellant "16. The dismissal by the Branch Executive was in breach of the Rules and invalid because ..." of non compliance with the requirements of Rule 43(c). Respondents "17. They deny paragraph 16 of the Contentions saying that as the Applicant was not entitled to be dealt with under Sub-Rule 43(c) the issues raised in this paragraph are not relevant."
Nowhere in the contentions is there any claim that the Branch Executive relied upon Rule 43(b). The hearing before the trial Judge appeared to proceed on the assumption that the real issue was whether Rule 43(c) was mandatory in the sense that the appellant, if an officer, could be dismissed pursuant to that power only. Although the trial Judge referred to Rule 43(b) no explanation is given and in particular, no explanation is given as to whether a confirmation of an invalid act of the Secretary is a proper exercise of a power to dismiss under Rule 43(b).
In all the circumstances, the appeal should be allowed and the order appealed from set aside. The question remaining is whether the Full Court should make the order sought by the appellant. On the contentions, it is clear that the respondents could have called evidence, if admissible, on the issue of whether the Branch Executive had exercised the power conferred by Rule 43(b) but the whole of the procedures taken at the time appear to have been based on an allegation of gross misconduct or gross misbehaviour and all the outward appearances indicated the application of Rule 43(c). There was an appeal to the Executive Council which is provided only by Rule 43(c) and although the Secretary of the Branch disputed that right of appeal, the Executive Council determined that such an appeal was available to the appellant under the Rules. It is clear that the Executive Council determined to conduct the appeal in the exercise of the power conferred by Rule 43(c).
On the whole of the evidence before the trial Judge, being the evidence before this Court, see s. 27 Federal Court of Australia Act 1976, we are satisfied that the action taken by the Branch Secretary in purporting to dismiss the appellant for "gross misconduct" was invalid and that thereafter the Branch Executive and the Executive Council purported to exercise the powers conferred by Rule 43(c).
We do not consider that this conclusion could be affected by any different course that the trial might have taken had the point been squarely raised before the trial Judge.
In exercising the power conferred by Rule 43(c) the Branch Executive and the Executive Council were bound to accord the appellant natural justice because that requirement is implicit in the Rule. The trial Judge found that natural justice was not accorded to the appellant. We agree with that finding, which was not challenged before us. The result is that the Rules of the organization were not observed.
It is beside the point that if a different procedure had been adopted and power deriving from a different rule had been exercised the appellant's employment and his holding of office might have been terminated without cause. As we have noted, the exercise of the power under Rule 43(c) is attended with particular consequences, some of which, in important respects, do not flow from the exercise of other powers. In these circumstances, the result of the exercise of power under Rule 43(c) otherwise than in accordance with its requirements cannot be saved by reference to another power that might have been exercised.
The resolutions of the Branch Executive and of the Executive Council involved a failure to observe the Rules of the Union with the result that the resolutions are void and of no effect. Orders should be made giving effect to this conclusion.
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