Thomson v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union of Australia

[1996] IRCA 450

DECISION NO: 450/96

CATCHWORDS

INDUSTRIAL LAW - REGISTERED ORGANISATION - s 196 of Industrial Relations Act 1988 (Cth) - whether rules of organisation contravene - whether requiring general meetings to approve request by 10% of members for plebiscite oppressive or unreasonable

INDUSTRIAL LAW - REGISTERED ORGANISATION - construction of union rules - whether "meeting" means face-to-face meeting

Industrial Relations Act 1988 (Cth): ss 196(c)208

Boland v Munro (1980) 48 FLR 66
Doyle v AWU  (1986) 12 FCR 197

Higgins v Nicol & Ors  (1971) 18 FLR 343

Hodder v AWU  (1985) 9 FLR 498
Lawley v TWU  (1987) 22 IR 114

Loh v O'Grady  (1992) 42 IR 215

McCherish v Kane (1978) 36 FLR 80
MOA v Lancaster  (1981) 54 FLR 129

Quickenden v F.A.U.S.A. & Ors  (1990) 33 IR 54
Re A.F.P.E.C.S.  (1991) 43 IR 378
Re Ferguson  (1995) 58 FCR 106

Wright v McLeod (1983) 74 FLR 146

GLENN ASHLEY THOMSON v AUTOMOTIVE, FOOD, METAL, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF AUSTRALIA

VI 95/6317

CORAM:  WILCOX CJ, MOORE & MADGWICK JJ
PLACE:    SYDNEY (HEARD IN MELBOURNE)

DATE:     24 SEPTEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

No. VI 95/6317

On Appeal from a Single Judge of the Industrial Relations Court of Australia

BETWEEN  GLENN ASHLEY THOMSON

Appellant

AND  AUTOMOTIVE, FOOD, METAL,
  ENGINEERING, PRINTING & KINDRED
  INDUSTRIES UNION OF AUSTRALIA

Respondent

CORAM:  WILCOX CJ, MOORE & MADGWICK JJ
PLACE:    SYDNEY (HEARD IN MELBOURNE)
DATE:     24 SEPTEMBER 1996

MINUTES OF ORDER

The court orders that the appeal be dismissed.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

No. VI 95/6317

On Appeal from a Single Judge of the Industrial Relations Court of Australia

BETWEEN  GLENN ASHLEY THOMSON
  Appellant

AND  AUTOMOTIVE, FOOD, METAL,
  ENGINEERING, PRINTING & KINDRED
  INDUSTRIES UNION OF AUSTRALIA

Respondent

CORAM:  WILCOX CJ, MOORE & MADGWICK JJ
PLACE:    SYDNEY (HEARD IN MELBOURNE)
DATE:     24 SEPTEMBER 1996

REASONS FOR JUDGMENT

THE COURT: On 7 May 1996 we heard an appeal from a decision of Marshall J refusing an application under s 208 of the Industrial Relations Act 1988 (Cth) (the Act) to declare that rule 47.9AA of the rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (the Union) contravened s 196 of the Act. At first instance the applicant, the present appellant, Glenn Ashley Thomson, initially relied on both para (a) and (c) of s 196. But during argument his counsel abandoned reliance on para (a). The learned trial judge set out reasons for thinking that concession to be correct. He relied on a statement of Gray J in Loh v O'Grady (1992) 42 IR 215-219 which emphasised that, in a consideration of such matters, it is the rules as a whole that count. As Gray J noted, "Rules such as those dealing with referenda are certainly part of such an examination... So also are rules dealing with elections ...". We express no view about this aspect of the matter. In the result Marshall J dealt only with para (c). The argument before us was confined to para (c). That paragraph provides:

"196.  The rules of an organisation:

...

(c)shall not impose on members, of [an] 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."

At the conclusion of argument we dismissed the appeal and indicated we would publish our reasons in due course.  These are our reasons.

The structure of the Union

The Union is an organisation of employees registered pursuant to the Act.  It includes four divisions including a "Food and Confectionery Division" ("the Division").  The appellant is a member of the Union who is attached to the Division.  The Division was formed in February 1994 as a consequence of the amalgamation between the respondent (then known as the Metals and Engineering Workers' Union) and an organisation called the Confectionery Workers' and Food Preservers' Union of Australia ("CWFPU").

Rule 47.4(a) establishes the Division for members of the Union who, broadly speaking, were either members, pre-amalgamation, of the CWFPU or are eligible for membership of the Union under that part of the eligibility clause which was taken from the CWFPU's former Rules.  The Division operates in New South Wales, Victoria, Tasmania and South Australia and, under sub-rule 47.5(a), the membership of the Division is divided into four "regions" defined as those States.  New South Wales includes the Australian Capital Territory.

A Division "Conference" is established by sub-rule 47.6(a).  It consists of the Federal Secretary of the Division, each Regional Secretary of the Division, and one other delegate from each region, except Victoria, which has two delegates, one being the Regional President.  Pursuant to sub-rule 7, the Conference has management and control of the affairs of the Divisions, subject to the Rules and decisions of the (supra-Division) National Conference, National Council and National Administrative Committee.

The Conference is ordinarily to meet biennially: sub-rule 8.  Provision is made for notice of the meeting and agenda items.  However, Conference has a discretion to deal with business that is not on the formal agenda.  Paragraphs 47.8(h) and (i) deal with special meetings of the Conference:  these must be held within 6 weeks after a receipt by the (Division) Federal President "from 2 or more Regions" or a resolution of the Division Federal Executive.  Paragraph 47.8(j) provides for the Division Federal Executive to deal with urgent matters without convening a "meeting" of the Conference, but instead to use other means including postal ballot, telephone hook-ups, individual telephone calls, telegrams, telex "or any other mode of electronic communication".

The Division's Federal Executive consists of the Federal President, Vice-President, Secretary and three Members elected by and from the Conference (sub-rule 47.9).  It must meet at least once every four months (para (d)).  A special meeting must be summoned within 14 days of a request of the Federal President or of two regions. There is similar provision for the determination of urgent matters without face to face meetings, under para (h) of that sub-rule.

Regional business is to be conducted and managed by Regional Councils, which consist of Regional Presidents, Vice-Presidents, some organisers and between 3 and 16 Committee Members:  sub-rule 47.14.  Para (a) thereof provides:

"(a)    In each region, there shall be constituted a Regional Council which shall consist of:-

(i)The Regional President - Food and Confectionery Division;

(ii)In the regions other than South Australia two Regional Vice-Presidents - Food and Confectionery Division;

(iii)In the South Australian region one Regional Vice President;

(iv)The Regional Secretary - Food and Confectionery Division;

(v)Regional Assistant Secretary - Food and Confectionery Division, if any;

(vi)Such number of State Organisers - Food and Confectionery Division as may be determined by State Council in accordance with Rule 23; and

(vii)In the regions other than South Australia 16 Committee members

Provided that the number of committee members shall be reduced to no less than 7 committee members or such other greater number of committee members as may be determined from time to time by the Regional Council with the approval of the National Council . . .

(viii)In the South Australian Region three committee members."

Sub-rule 14.21 is in the following terms:

"(a)    General Meetings of members of the Region in the Food Confectionery Division shall be held in accordance with this sub-rule.

(b)     A General Meeting of members may be convened by a General Meeting, the Regional Council or in accordance with paragraph (c).

(c)     On receipt of a request from 3 members of the Regional Council or from 10% of the financial members of the Region, the Regional Secretary shall call a special general meeting as soon as practicable to deal with the matter which is the subject of the request for the special general meeting.

(d)     A quorum for a general meeting shall be 10 members.

(e)     A decision of a general meeting shall be binding on the Regional Council and the Regional Executive."

Sub-rule 22 provides for the making of by-laws by the Regional Council but no by-laws have been made:

The supreme governing body of the Union is the National Conference (R.4) but it may not alter the Rules concerning the Division "unless approved by a majority vote of the ... Division Conference, such vote to be taken within 30 days" of the National Conference Decision:  R.4.1A.(b).

The issue

As mentioned, the impugned rule provision is Sub-rule 47.9AA.  That sub-rule provides for a ballot of all members of the Division.  It is in the following terms:

"(a)    Any two or more Regions [State Branches] may at special meetings convened for the purpose demand a ballot in accordance with this Sub-Rule of all members of the Food and Confectionery Division of the Union on any question.

(b)     On a ballot being demanded in writing by the Regional Secretaries of the Regions concerned, the Federal Secretary - Food and Confectionery Division shall, within four weeks, forward to each Region a ballot paper for each person who shall have been a financial member of such Region at the end of the quarter immediately prior to the ballot.

(c)     The Regional Secretary shall within four weeks distribute and collect the ballot papers and certify the number of members of his/her Region voting, the number of members voting affirmatively and the number of members voting in the negative.

(d)     Each Regional Secretary shall forthwith forward to the Federal Secretary - Food and Confectionery Division the certificate referred to in paragraph (c) of this Sub-Rule, and the Federal Secretary - Food and Confectionery Division shall thereupon advise each Regional Secretary of the result of the ballot which shall be binding on all members of the Union in the Food and Confectionery Division, the Food and Confectionery Division Executive Committee and Food and Confectionery Division Conference."

The appellant argued that the sub-rule contravened s 196(c) "in that it denies members any effective or reasonable access to a plebiscite or referendum".

The argument for the appellant

The case was essentially argued in the following way:

". . . the operation of the rules places an improper impediment upon the availability of a plebiscite at the instigation of the members, primarily for two reasons:

(a)     they require a double step, namely a petition for a meeting, and then a meeting; and

(b) the requirement for the meeting in the context of the Division is productive of an oppressive, unreasonable and unjust restriction in the terms of Section 196(c).

The two reasons are significantly interrelated.

Rule 47.9AA provides for a plebiscite to be available upon a demand by a special general meeting in at least two Regions.  By operation of Rule 47.21(c), special general meetings can relevantly be requested by 10% of the financial members of a Region.  This creates the oppressive, unreasonable and unjust situation in which the wishes of 10% of the financial members can be blocked by a meeting attended by as few as ten members (Rule 47.21(d)).

It is accepted that plebiscites should not be too readily available, however, in this case the opposite arises because the substantial prerequisite of a petition is too easily overridden and the plebiscite too readily denied.

...

The Section prohibits rules from imposing conditions obligations or restrictions that are oppressive, unreasonable or unjust having regard to the objects of the Act.  Section 187A(a) and (b) state objects of encouraging democratic control of unions and the encouragement of membership participation.  The process required of members of the Division seeking a plebiscite, a most basic tool of democracy, clearly impedes both these objects.  And it does so in a way that is oppressive, unreasonable and unjust."

Must "meetings" be face-to-face"

Some attention was paid in the proceedings at first instance to permissible methods of conducting a special general meeting of members under R 47.21(c). Reference was made to the form of the rules which did not expressly comprehend the notion of a meeting extending beyond people assembled together, face to face, immediately able to hear, and be heard by, all present. In an era of video-link communication, it may be doubted whether conceptions predicated upon technologies available in earlier centuries ought to govern the meaning of the word "meeting": cf. Quickenden v F.A.U.S.A. & Ors (1990) 33 IR 54 at 57 and Higgins v Nicol & ors (1971) 18 FLR 343 at 357; see also Re Ferguson (1995) 58 FLR 106. However, there is recent authority which tends to support the appellant's contention: see Re A.F.P.E.C.S. (1991) 43 IR 378 at 382. Compare also s 33b of the Acts Interpretation Act which seems to proceed upon the assumption that statutorily-required" meetings would be as traditionally understood, except as allowed by that section.  Section 33b provides:

"(1)    This section applies to a body (whether or not incorporated) established by an Act if the Act requires or permits meetings of the members of the body to be held.

(2)     The body may permit its members to participate in a meeting, or all meetings, by:

(a)     telephone; or

(b)     closed-circuit television; or

(c)     any other means of communication.

(3)     A member who participates in a meeting under a permission under subsection (2) is taken to be present at the meeting.

(4)     This section has effect subject to any contrary intention in the Act."

Without finally determining the matter, it seems doubtful that an "organisation" as recognised by the Industrial Relations Act would be "a body . . . established by an Act".

It may therefore be perilous for an organisation to assume that references in their rules to "meetings" or "general meetings" would authorise resort to serial meetings, televised speeches, telephone conferencing facilities and so on, unless such procedures are expressly authorised by the rules. 

In the present case, the primary judge rejected the argument that the context of the instant rules, and especially sub-rule 47.8(j) indicated that the traditional meaning of the word "meeting" had been intended by the framers of the rules.  It is not necessary for us to decide this point.  The matter can be decided upon the assumption that the "special general meetings" in the Regions must be of the traditional, face-to-face kind.

Practices and policies of the Union

Evidence was led that the respondent pursued what the trial judge called a "laudable policy" of securing the best possible attendances at general meetings.  However, the power of the caution issued by Pincus J in Hodder v AWU (1985) 9 FCR 498, 502 (approved by Gray J in Lawley v TWU (1987) 22 IR 114) cannot be gainsaid:

"To some extent the argument before me proceeded on the assumption that it was the practical operation of the rules, as demonstrated by past experience, which had to be considered, rather than the operation of which they are capable. As an example of this approach, it was urged upon me that in considering the powers vested in the Executive by the rules, I should take into account the fact that, currently at least, some matters decided by it are routinely submitted to the next meeting of the Convention, for approval or confirmation. Evidence of that sort does not appear to me to have any bearing upon the matter I have to consider. Like the constitution of a nation, the rules of a union, whatever their content, may from time to time be applied in a fair or unfair way. It is not their mode of application, as it may appear to the court at the date of a hearing, which s 140(1)(c) [the precursor of s 196(c) of the Act] requires to be examined, but their true effect.

However, a change in the extrinsic facts upon which a rule operates may make a once reasonable rule unreasonable, or vice versa.  . . . Alterations in the attitude of members or officers towards the rules, or their assumptions as to the way in which they should operate, appear to me to be in a different category altogether.  I cannot, for example, accept that proof that at a particular time the use of the wider powers of this Executive was rare could be relevant to the validity of the rules.  Not only the wording of s 140(1)(c), but practical considerations, weigh against that.  As to the latter, experience shows that in times of crisis or internal dissension understandings as to the way in which the constitution of an organisation should be applied are likely to go by the board.  Even absent such a situation, a future Executive might be disinclined to take notice of alleged conventional restraints on the exercise of its constitutional power."

Relevant conditions in industry

Shift work is prevalent in the food and confectionery industry:  for shift workers, attendance at meetings may be difficult and onerous.  Likewise, although the largest two States are not involved here, there are, in each Region, workplaces and, no doubt, Union members residing a long way from the Regional Offices.  It follows that a provision that depends upon a decision being taken at "special meetings" is a provision that will almost certainly preclude some members from participating in the decision.

Conclusions

The appellant did not suggest that the requirement in sub-rule 14.21 that 10 per cent of the financial members must join in a requisition of a special general meeting was an unreasonable restriction on membership control of or participation in the Union's affairs.  We express no view about that, but that lack of attack has the consequence that we must assume that the requirement is not unreasonable.

The essence of the impugned sub-rule (sub-rule 14.9AA) is the requirement that two Regions, at special meetings demand a plebiscite of all members of the Division.  It was not claimed that the central requirement, that two Regions concur in the need for a ballot, was oppressive, unreasonable or unjust.  Again, we make no comment about this, but it does have a similar consequence for the case.

The complaint of the appellant relates to the procedure required by sub-rule 9AA for members in each of the two Regions to actuate their Regions.  This is a two-phase process:  firstly 10% of financial members must request a special general meeting and secondly the meeting must demand the plebiscite.  There is, as noted above, no challenge to the first of these requirements.  The challenge relates to the second.  The appellant argues that, in a State-wide branch of a Union:

(i)     the provision that an important decision be made or endorsed by a general meeting is unreasonable, and

(ii)     the provision of a facility in a general meeting, which might have only a small attendance, to override the wishes of an actual, substantial minority of members is unreasonable.

The general meeting has traditionally been regarded within the trade union movement and more generally as the tool and spur of democracy.  No doubt, whenever or wherever such a meeting is held, some shift workers and/or distantly-located workers will find it difficult or impossible to attend.  But what are the alternatives?

One alternative would be simply to dispense with the general meeting and to allow the 10% of the members of a Region who supported some position, including (but, be it noted, not limited to) the holding of a plebiscite of all members of all Regions, to determine the attitude of a Branch. If this course were taken, the 10% could impose their view on the Region even if the other 90% were against them. This does not seem more reasonable than the course adopted by the impugned rule. Quite apart from considerations of intra-Region democracy, a result would be that a plebiscite could be requisitioned by a mere 10 per cent of the members in each of two Regions, thereby imposing on the organisation a considerable cost, both pecuniary and in officials' time, in relation to an issue for which there might be little support. Plebiscite rules, where they exist, sometimes provide that some smallish but substantial proportion of the entire membership of an organisation, not merely one or more Branches, may require a general ballot of members to be taken. Sometimes they require the support for the referendum of two or more branches. Sometimes there is no such rule, without offence to s 196(c): see Boland v Munro (1980) 48 FLR 66. Provisions considerably restricting the right to a plebiscite have not been thought unreasonable: see eg. McCherish v Kane (1978) 36 FLR 80 and Wright v McLeod (1983) 74 FLR 146.

Another alternative might be to require the Regional Council to decide whether to adopt the position of the 10 per cent.  However, the justification of a members' requisition procedure is that the leadership, here the Regional Council, is not properly reflecting the members' wishes.  So this alternative would appear nugatory, if not absurd. 

It needs to be remembered that

"[t]he primary justification for the existence of a rule of an organisation is simply that the organisation has adopted that rule":  Doyle v AWU (1986) 12 FCR 197, 205-6,

and that

"The Court has no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the court might see as preferable, desirable or ideal".  (per Deane J in MOA v Lancaster (1981) 54 FLR 129).

We are not satisfied, at least in the light of the assumptions necessary on account of the conduct of the case, that sub-rule 14.9AA, whether taken alone or in conjunction with sub-rule 14.21, imposes any condition, obligation or restriction that could fairly be labelled "oppressive, unreasonable or unjust" within the meaning of s 196(c) of the Act.

For these reasons we dismissed the appeal.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of the Court.

Associate:  

Dated:       24 September 1996

APPEARANCES

Counsel for the Appellant:      H Borenstein

Solicitor for the Appellant:      Slater & Gordon

Counsel for the Respondent:    W R Haylen QC with J P Wallace

Solicitor for the Respondent:   Taylor & Scott

Date of hearing:  7 May 1996