Want v Kruse
[2008] FCA 957
•20 June 2008
FEDERAL COURT OF AUSTRALIA
Want v Kruse [2008] FCA 957
MICHAEL ROBERT WANT v BENJAMIN KRUSE
NSD785 OF 2008
COWDROY J
20 JUNE 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD785 OF 2008
BETWEEN:
MICHAEL ROBERT WANT
ApplicantAND:
BENJAMIN KRUSE
Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
20 JUNE 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an Order to Show Cause be adjourned to a date to be fixed.
2.Costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD785 OF 2008
BETWEEN:
MICHAEL ROBERT WANT
ApplicantAND:
BENJAMIN KRUSE
Respondent
JUDGE:
COWDROY J
DATE:
20 JUNE 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
FACTS
The applicant (Mr Want) is a member of the Australian Municipal, Administrative, Clerical and Services Union (‘the ASU’), an organisation of employees registered under the Workplace Relations Act 1996 (Cth) (‘the Act’). Mr Want is also the Branch Executive President of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Branch of the Union (‘the ASU NSW Branch’). Mr Want is also the Executive President of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (‘the USU’) which is an organisation of employees registered under the Industrial Relations Act 1996 (NSW).
The respondent (Mr Kruse) is the Branch Secretary of the ASU NSW Branch and is also General Secretary of the USU. Rule 56 of the ASU Rules provide that a member of the USU is also a member of the ASU.
Relief claimed
Mr Want seeks an order pursuant to O 48 r 8 of the Federal Court Rules (Cth) (‘FCR’) that Mr Kruse show cause why orders should not be made pursuant to s 164 of Schedule 1 to the Act.
Mr Want commenced these proceedings by filing a Rule to Show Cause on 29 May 2008. On 11 June 2008 Mr Want filed in Court a notice of motion and an Amended Rule to Show Cause. On 18 June 2008 Mr Want filed in Court a Further Amended Rule to Show Cause seeking relief against Mr Kruse and the 21 persons who comprise the executive of the USU. The first claim for relief seeks:
An order pursuant to section 164 of Schedule 1 to the Workplace Relations Act 1996 (Cth) that the First Respondent perform and observe rule 16 of the Rules of the New South Wales Local, Government, Clerical, Administrative, Energy, Airlines and Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (“the Branch”).
Order 2 seeks an order that an email be sent to all staff withdrawing certain emails forwarded by Mr Kruse and relates to the specific details of the relief which Mr Want seeks to allow him to fulfil his duties.
Orders 3 and 4 provide:
3.An order that the First Respondent provide to the Applicant such access cards as are necessary to enable to [sic] applicant to access and use the car parking privileges that were available to the applicant on 16 April 2008.
4.That each of the Respondents perform and observe rule 44 of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (USU) by treating as void and of no effect the resolutions carried by the Executive of the USU on 17 April 2008 pursuant to which the Executive of the USU purported to suspend the Applicant from 17 April 2008 to 17 July 2008.
At this stage of the proceedings Mr Want only seeks the issue of a Show Cause Order in relation to Order 4 of the Further Amended Rule to Show Cause.
Events giving rise to proceedings
On 30 January 2003, the MEU New South Wales Branch of the Australian Municipal, Administrative, Clerical and Services Union (‘the NSW MEU’), the Federated, Municipal and Shire Council Employees Union of Australia New South Wales Division (‘the FMSCEU’), the New South Wales Clerical and Administrative Branch of the Australian Municipal, Administrative, Clerical and Services Union (‘the NSW C&A’) and the Federated Clerks Union of Australia, New South Wales Branch (‘the FCU’) entered into a memorandum of agreement (‘the Memorandum’) which, inter alia, led to the merger of two branches of the NSW MEU and the NSW C&A to form a Branch known as the NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Branch of the ASU. Further, the two organisations registered under the Act, namely the FMSCEU and the FCU, also amalgamated.
Pursuant to clause 2 of Part 3 of the Memorandum, the operation of the new organisation (the ASU NSW Branch) was to be conducted as follows:
(a)The State Union will be the operating unit, employing all the staff and providing all the services.
Mr Kruse, as Branch Secretary of the ASU NSW Branch, is required, inter alia, to ‘control and manage the office and employees of the Branch’. Such duties arise in consequence of Rule 16 of the ASU NSW Branch Rules.
Mr Want is the Deputy Executive Officer of the ASU NSW Branch and pursuant to Rule 17 of the ASU NSW Branch Rules he is, inter alia, required to ‘[c]onduct and manage the affairs of the Clerical and Administrative Division and do all things necessary to be done on behalf of that Division’: see Rule 17(c)(i). Such duties include administering and servicing the needs of members; providing guidance to members; dealing with issues arising in the course of the making and administration of collective bargaining agreements; dealing with issues of compliance of awards under the Act to which the Union is a party; dealing with correspondence; mentoring, advising, supporting employees working in the office of the ASU NSW Branch; liaising with staff and liaising with the Branch Secretary.
The administrative offices of the USU and the ASU NSW Branch are located in premises owned by the USU on Levels 7 and 8, 321 Pitt Street Sydney (‘321 Pitt Street’).
The administrative staff responsible for the keeping and maintaining of the membership records of the USU and the ASU NSW Branch are located on level 7 of 321 Pitt Street. Organisers and staff who are allocated to the NSW C&A are located on level 7 of 321 Pitt Street. The administrative staff responsible for keeping and maintaining the accounts of the USU and the ASU NSW Branch are located on level 8 of 321 Pitt Street.
Mr Kruse occupies an office on level 8 of 321 Pitt Street and Mr Want has had the exclusive use of an office on the same level for the past eight years.
All of Mr Want’s daily duties, as Branch Executive President of the ASU NSW Branch, are conducted from an office on level 8. Ms Kellie Gale, his support staff, occupies an office on level 8 adjacent to that occupied by Mr Want. All the precedents, files concerning awards and agreements, National Executive minutes and reports, ASU NSW Branch Executive minutes and reports and other records are kept in Mr Want’s office.
Mr Want has also had the use of general office facilities within levels 7 and 8 of 321 Pitt Street including telephone, fax, email, photocopying, administrative and clerical support staff. All of those are necessary for the fulfilment of his role as Branch Executive President. Further, an administration manager, training officer and accountant each have offices on level 8 and perform their duties for both the USU and the ASU NSW Branch.
The ASU NSW Branch leases space on level 8 from the USU for its National Office in Sydney. Such space is separated from the location of Mr Want’s office. The Assistant National Secretary, Mr Greg McLean (an industrial officer), Ms Jo Justo and a receptionist, Ms Rae White, each work within the ASU National Office. The ASU National Office is separated from the remainder of the area on level 8 by a partition and access to the ASU National Office can only be obtained by stairs from level 7 of 321 Pitt Street.
Suspension of position as Executive President of the USU
In June 2007 certain disagreements arose between Mr Want and Mr Kruse concerning the future of the Clerical and Administrative Division of the USU and of the NSW C&A. On 20 March 2008 Mr Want received a notice, apparently under Rule 44 of the USU Rules, charging him with four offences under such Rules.
On 17 April 2008 a motion was carried by the Executive of the USU purporting to suspend Mr Want from his position as Executive President of the USU for a period of three months between 17 April 2008 to 17 July 2008 on the ground of substantial breach of the USU Rules and gross misbehaviour. Such breach and misbehaviour is denied by Mr Want and pursuant to Rule 44(9) of the USU Rules he has a right to appeal provided such appeal is lodged within 28 days of the decision against which the appeal is made. Mr Want and Ms Maryanne Stuart, the Deputy President of the USU, who was also suspended, lodged their appeals against the resolutions of the USU Executive on 17 April 2008.
Such appeals are due to be heard at a full conference in September 2008, namely after the period of suspension has expired.
As a consequence of such suspension, Mr Want cannot carry out his daily functions as Branch Executive President of the ASU NSW Branch. He has no access to staff, union records, membership information or to members. Such access is necessary to enable him to perform his duties. Further, he is unable to liaise with staff and is unable to communicate in view of the fact that the office telephone, facsimile, photocopier and other support facilities are being denied to him.
Mr Want asserts that the conduct of Mr Kruse is in substantial breach of the ASU NSW Branch Rules. Such conduct is actively preventing Mr Want from fulfilling his duties as Branch Executive President of the ASU NSW Branch. Mr Want seeks an order that Mr Kruse perform and observe Rule 17 of the ASU NSW Branch Rules and that he be given access to level 7 and level 8 of 321 Pitt Street and to all records and staff and other facilities so that he may carry out without hindrance his role as Branch Executive President of the ASU NSW Branch.
Mr Want’s submissions
Mr Want submits that he has established a prima facie case that Mr Kruse is preventing him from performing his duties under Rule 16 of the ASU NSW Branch Rules. Secondly, it is submitted that each of the four charges brought against him by the USU Executive are defective. Thirdly, it is submitted the Court has broad powers to enforce rules pursuant to s 164 of Schedule 1 to the Act. Such a power may be exercised where the conduct of another is being used for any improper purpose. Mr Want relies upon the authorities of Scott v Jess (1984) 3 FCR 263 at 269 and Lennon v Davenport and Others (1984) 4 FCR 476 at 481.
FINDINGS
The evidence establishes that Mr Kruse, in his capacity as General Secretary of the USU, is bound to execute the decision of the USU Executive to suspend Mr Want from his office in the USU. Accordingly, unless the suspension of Mr Want is lifted, the relief claimed, if granted, would place Mr Kruse in breach of the USU Executive decision and in breach of his duties.
Discretionary considerations
Order 48 Rule 7 of the FCR provides that an application for an order to show cause may be made ex parte. However, when the proceedings came before the Court on 4 June 2008, representation for Mr Kruse was permitted and the Court considers that there is no reason for the Court not to continue to permit such representation.
The evidence in support of the issue of the Show Cause Notice is provided solely by Mr Want. There is no evidence contained in Mr Want’s affidavits that he has suffered any personal hardship or financial loss resulting from the resolutions carried by the USU Executive on 17 April 2008. Further, there is no evidence from the Executive of the ASU that it is being impeded in the performance of its daily duties, nor that the activities of the ASU are being prejudiced by the fact that Mr Want is being impeded in the way in which he claims.
The Court has been informed of the fact that informal negotiations have taken place and that such negotiations are still current. Further, an appeal against Mr Want’s suspension is to be considered at a full conference in September 2008. Although this date follows the period of suspension, the Court is mindful that there are processes available to Mr Want for the continued informal conciliation of his claims and that there is a process in place for an appeal.
Section 164(3) of Schedule 1 to the Act provides:
The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation.
Having been taken to the evidence this morning, the disputes are wholly internal, and appear to arise from differences of opinion between Mr Want and Mr Kruse concerning the operation of the amalgamated Unions. The Court’s processes should only be used as a last resort when matters involving inter-union disputes arise.
Taking into consideration the appeal process that has been invoked by Mr Want and which has not yet been determined, the absence of any hardship being occasioned to Mr Want in the interim period pending the determination of the appeal, and the provisions of s 164(3) of Schedule 1 to the Act, the Court is satisfied that, in the exercise of its discretion, it should not issue the order at this stage. The processes available may well result in a settlement of the parties’ differences and the Court considers it inappropriate to grant any relief pending the exhaustion of those procedures.
Accordingly the Court will order that the proceedings be adjourned to a date to be fixed following the hearing of the appeal. At that stage the Court will determine whether a Show Cause Order should be issued.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 25 June 2008
Counsel for the Applicant: Mr Fernon SC with Mr Mackay Solicitor for the Applicant: Back Schwartz Vaughan Counsel for the Respondent: Ms Howell Solicitor for the Respondent: Aaron Neal
Date of Hearing: 20 June 2008 Date of Judgment: 20 June 2008
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