FEDERAL COURT OF AUSTRALIA
Kingham v Ferguson [2001] FCA 537
INDUSTRIAL LAW – rule to show cause – application for orders that the respondents perform and observe the Rules by treating postal vote as invalid - whether rule enabling Divisional Secretary to conduct postal vote subject to implied limitation of urgency – whether review by Divisional Conference of decision of Divisional Executive can be conducted by postal vote.
Workplace Relations Act 1996 (Cth): s 196, s 209
Adams v Yung (1988) 83 FCR 248 referred to
MARTIN KINGHAM & ORS v ANDREW FERGUSON & ORS
V 271 of 2001
GOLDBERG J
9 MAY 2001
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE Applicants
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AND: |
ANDREW FERGUSON, JOSE MARIO BARRIOS, NIKOLA BOTIC, HUNBERTO BRAZAO, BRANKO BUKARICA, ROBERT COCHRANE, MICHAEL FOSTER, LINDSAY FRASER, BARRY HEMSWORTH, MICHAEL LANE, MARK McBRIDE, PETER McCLELLAND, LUDWIG STRUTZENBERGER, JOHN SUTTON, ANTE ZDRILIC, TREVOR JOHN MELKSHAM, JOE McDONALD, KIM YOUNG, KEVIN McPARLAND, TERRENCE JAMES McINTYRE, CARL PURCELL, WILLIAM WALLACE TROHEAR, LAURENCE JOHN GENRICH, CHRISTOPHER PRICE, THOMAS SMITH, JASON PETER STEIN, PAUL BRIAN WATERS, GEORGE WASON, GLENN PARRY, SARAH SCHOONWATER, DALE LESLIE CRACKNELL, ANTHONY ROSS BENSON, JOHN CUMMINS, JOHN FURLONG, ALBERT EDWARD LITTLER, JOHN LOH, DAVE NOONAN, FRANCIS O’GRADY, WILLIAM OLIVER, JOHN SETKA, ROY WILLIAMS, BEN CARSLAKE, P L KAINE Respondents |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”), the respondents and each of them perform and observe the Rules (“the Rules”) of the Construction, Forestry, Mining and Energy Union, Construction and General Division (“the Division”) by treating as null and void and of no effect the decision of the fourteenth respondent under rule 8(xv) of the Rules on or about 9 April 2001 to conduct a postal vote of the Divisional Conference of the Division on the matter of a review sought by the first applicant of the decision of the Divisional Executive of the Division on 22 March 2001 to make certain changes to the Rules (“the postal vote”).
2. Pursuant to section 209 of the Act, the respondents and each of them perform and observe the Rules by treating the postal vote as null and void and of no effect.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
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IN THE FEDERAL COURT OF AUSTRALIA |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
Introduction
1 The applicants have applied pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”) for orders that the respondents perform and observe the Rules of the Construction and General Division (“the Division”) of the Construction, Forestry, Mining and Energy Union (“the Union”). The applicants, who are members of the Divisional Executive of the Division and delegates to the Divisional Conference of the Division, seek to have declared invalid a postal vote of members of the Divisional Conference which is being conducted by the fourteenth respondent, Mr John Sutton, the Divisional Secretary of the Division (“Mr Sutton”).
2 On 12 April 2001, I ordered the respondents to show cause why the following orders should not be made:
“1. An order pursuant to section 209 of the Workplace Relations Act 1996 (Cth) (‘the Act’) that the Respondents and each of them perform and observe the Rules (‘the Rules’) of the Construction Forestry Mining and Energy Union, Construction and General Division (‘the Division’) by treating as null and void and of no effect the decision of the First Respondent (‘Sutton’) under rule 8(xv) of the Rules on or about 9 April, 2001 to conduct a postal ballot of the Divisional Conference of the Division on the matter of a review sought by the First Applicant (‘Kingham’) of the decision of the Divisional Executive of the Division on 22 March, 2001 to make certain changes to the Rules (‘the postal ballot’).
2. An order pursuant to section 209 of the Act that the Respondents and each of them perform and observe the Rules by treating the postal ballot as null and void and of no effect.
3. Alternatively, an order pursuant to s 209(7) of the Act that Rule 8(xv) of the Rules, or the Rules as a whole, contravene s 195(1)(b)(iv), s 196(a) and/or s 196(c) of the Act insofar as:
(a) they permit the Divisional Secretary to conduct a postal ballot of the Divisional Conference in relation to matters other than matters of urgency;
(b) they permit the Divisional Secretary to conduct a review of a decision of the Divisional Executive by postal ballot of the Divisional Conference;
(c) they fail to make adequate provision for the control of the Divisional Executive by the members of the Division.”
I also made other orders not relevant for present purposes.
3 The application upon which those orders was made is one of a number of applications which have been made recently arising out of disputes within the Division in relation to the method and timing of elections of officers of the Division. I have already made orders restraining members of the Divisional Executive from acting upon certain resolutions which have been passed by the Divisional Executive in relation to the rules for the calling and holding of elections of officers of the Division: Kingham v Sutton [2001] FCA 328; Kingham v Sutton (No 2) [2001] FCA 400.
Background
4 A substantial part of the background and circumstances giving rise to the present application is set out in my earlier reasons for judgment. In order to put the more recent events in context, it is necessary to set out again some of the matters in the earlier reasons for judgment so far as presently relevant.
5 The first applicant (“Mr Kingham”) is the Secretary of the Construction and General Division, Victorian Building Unions Divisional Branch, of the Construction and General Division of the Union. He and the other applicants are delegates to the Divisional Conference of the Division. The respondents are delegates to the Divisional Conference of the Division. Under the Rules of the Division (“the Divisional Rules”), the election of Divisional office bearers is held every four years at a biennial Divisional Conference. An election is due to be held at the biennial Divisional Conference later this year, after September, by virtue of the provisions of the Divisional Rules whereby nominations close fourteen days after the last Friday in September.
6 On 7 March, Mr Sutton sent to members of the Divisional Executive ballot papers for a postal ballot for a vote on a proposal to alter the Divisional Rules so as to allow elections at the Divisional Conference to be held earlier in the year at a time fixed by the Divisional Executive. The ballot was to remain open until the close of business on 14 March. Mr Kingham wrote to Mr Sutton on 9 March objecting to the postal ballot on the basis that it was not allowed under Divisional Rule 26.
7 On 9 March, Mr Sutton wrote to the Australian Industrial Relations Commission (“the Commission”) applying to have the rule amendments, which were the subject of the ballot, certified pursuant to s 205 of the Act. Apparently, by this time, a majority of members of the Divisional Executive in favour of the resolutions had recorded their votes.
8 On 12 March, the Queensland, South Australian, Western Australian and Victorian Divisional Branches wrote to Mr Sutton sending resolutions, which had been passed by their respective Divisional Branch Management Committees, pursuant to Divisional Rule 10, to hold a referendum on whether the Divisional Executive of the Division should make all necessary rule amendments, so that from and including the elections due in 2001, the offices of Divisional President, Divisional Secretary and two Divisional Assistant Secretaries must be filled by a direct secret ballot of all the financial members of the Division.
9 On 13 March, Mr Sutton wrote to Mr Kingham, refusing to call off the postal ballot and said that it was valid. He said that he had called a Divisional Executive meeting for 21 and 22 March.
10 On 15 March, Mr Kingham sent a letter by facsimile to Mr Sutton asking for the referendum arrangements to go on the agenda for the Divisional Executive meeting to be held on 21 and 22 March. On the same day, Mr Sutton told Mr Kingham that the resolutions, the subject of the postal ballot, had been carried. On that day, Mr Kingham wrote to Mr Sutton seeking a review by the Divisional Conference of the Divisional Executive’s decision made by the postal ballot. The review was sought pursuant to Divisional Rule 8(x)(g). On 16 March, Mr Kingham declined to give an undertaking, which had been sought by Mr Sutton, to the effect that no steps would be taken to have the rule amendments certified until they had been reviewed by the Divisional Conference as requested in his letter.
11 On 16 March, I made an order in an earlier proceeding: Kingham v Sutton (No V 196 of 2001), restraining the members of the Divisional Executive from submitting the rule amendments, which had been the subject of the postal ballot, to the Industrial Registrar for certification, or otherwise giving effect to them. At the same time, I granted a rule calling on the members of the Divisional Executive (other than the applicants) to show cause why orders should not be made for the performance and observance of the Divisional Rules. The Industrial Registrar had indicated that she would not certify the rule amendments pending the determination of the rule which I granted. That order was varied on 21 March to allow the Divisional Executive to consider and, if thought fit, pass resolutions rescinding the resolutions passed by the postal ballot and proposing the same resolutions at the meeting of the Divisional Executive on 21 and 22 March.
12 A meeting of the Divisional Executive was held on 21 and 22 March. On the first day, a resolution was passed bringing forward a meeting of the Divisional Conference to 8 May or such earlier time as it could be practically organised and authorising Mr Sutton to take all steps necessary to facilitate such a meeting, including postal ballots of the Divisional Executive. The resolution authorised the Divisional Conference to conduct the elections for Divisional Officer positions.
13 On the afternoon of 21 March, Mr Kingham delivered a petition said to be signed by approximately 8,700 financial members of the Union seeking the calling of a referendum, and moved motions to enable the referendum to be held as soon as possible on a question relating to the changing of the Divisional Rules to enable direct election of the Divisional President, the Divisional Secretary and two Divisional Assistant Secretaries. The question for the referendum was in the same terms as the question contained in the resolutions sent by the four Divisional Branches to Mr Sutton on 12 March.
14 The motions moved by Mr Kingham were put and lost. A motion was then moved by Mr Sutton that a request be made to the Divisional Secretary to take legal advice in relation to the issues raised by the petition and the Divisional Executive’s obligations in relation to it. That motion was passed.
15 On the next day, 22 March, the Divisional Executive passed a resolution rescinding the resolutions passed by the postal ballot which had concluded on 14 March, amending the Divisional Rules to the same effect and directing the National Secretary, or any other person authorised by him, to seek urgently the certification of the rule amendments. The resolution was in the following terms:
“This Divisional Executive in meeting assembled:
1. Notes that proceedings have been commenced relating to the process of the rule change passed by postal ballot commencing 7 March 2001;
2. Wishes to avoid unnecessary and expensive litigation for no ultimate practical purpose;
3. Notes the amended form of the interim orders of the Court and, in particular, the amendment in effect allowing this Divisional Executive at this meeting to rescind the postal ballot changes and proposing anew those changes at this meeting.
Resolves
4. To rescind the resolutions amending the Divisional Rules adopted by postal ballot conducted by the Divisional Secretary commencing 7 March 2001, AND
5. To amend the Divisional Rules in the following manner:
[Detailed amendments were set out]
Further, the Divisional Executive directs the Divisional Secretary, or any person authorised by him, to seek urgently the certification of the above rule change in order that the Divisional Executive can act to overcome the paralysing effect that the current crisis is having upon the day to day operations of the Division, and to press upon the Industrial Registrar such urgency.”
16 On 23 March 2001, in a different proceeding, I ordered, pursuant to s 209 of the Act, that the members of the Divisional Executive (other than the applicants) show cause why orders should not be made for the performance and observance of the Divisional Rules. The effect of the orders sought was:
· to have the resolution of the Divisional Executive passed on 21 March 2001 requiring that elections of Divisional Officers of the Division referred to in rule 9.2 of the Divisional Rules be held at a Divisional Conference of the Division to be held on or before 8 May 2001 treated as null and void and of no effect;
· to have the resolution of the Divisional Executive passed on 22 March 2001 to amend the Divisional Rules in relation to the calling and holding of biennial Divisional Conferences, the holding of elections and the taking up of offices after elections at the Divisional Conference, referred for review to the Divisional Conference;
· to prevent the rule amendments being certified by the Industrial Registrar until the completion of the review by the Divisional Conference;
· that Mr Sutton forthwith make all necessary arrangements for the holding of a referendum of the financial members of the Division as soon as possible on the question which had been submitted for decision by referendum.
I also restrained the Divisional Executive and the Industrial Registrar from taking any steps to certify the rule amendments which had been passed by resolution of the Divisional Executive on 22 March 2001.
17 There is an issue whether Mr Kingham sought a review by the Divisional Conference of the decision of the Divisional Executive on 22 March 2001 to make the changes to the Divisional Rules at the time the motion was debated or after the resolution was passed. That issue does not have to be resolved as Mr Kingham wrote to Mr Sutton on 27 March 2001 seeking a review of the decision pursuant to Divisional Rule 8(x)(g) and Mr Sutton did not challenge the proposition that a review had been sought. As appears hereafter, the review is provided for by Divisional Rule 9.15 rather than Divisional Rule 8(x)(g). But it is not in issue that what Mr Kingham sought was such review as is provided for by the Divisional Rules.
18 It is helpful to understand the hierarchy of decision‑making in the Division for which there are Divisional Rules separate from the Union Rules. Divisional Rule 8(i) provides that:
“The supreme governing body of the Division shall be the Divisional Conference.”
The Divisional Conference consists of delegates elected by the financial members of the Divisional Branches: Divisional Rule 8(ii), and the number of delegates depends upon the application of the formula found in Divisional Rules 8(iii) and (iv). The election of delegates to the Divisional Conference is a separate and distinct process from the election of persons to the Divisional Executive. The procedure for the election of Divisional Branch delegates to the Divisional Conference is found in rule 17(iii) of the Rules of the Union. Delegates to the Divisional Conference are elected for a term of four years: rule 17(i) of the Union Rules.
19 Rule 18 of the Union Rules relevantly provides:
“(i) There shall be a Divisional Executive composed in accordance with Divisional Rules and elected in accordance with such Divisional Rules.
(ii) Every Divisional Executive shall be elected either:
(a) by and from the Divisional Conference; or
(b) by direct ballot of the financial members of the Division.”
20 The Divisional Conference sits at the apex of the hierarchy of the Division. It has power “to confirm, over‑rule or otherwise deal with decisions of the Divisional Executive or Divisional Branches” of the Division: Divisional Rule 8(x)(g), and has power “to make, alter and rescind rules” of the Division or any Divisional Branch: Divisional Rule 8(x)(k). Divisional Rule 8(xvi) provides, relevantly:
“The Divisional Conference shall have and exercise all of the powers of the Divisional Executive and shall deal with any matter or matters referred to it by the Divisional Executive.”
Divisional Rule 8(xv) provides for the calling of meetings of Special Divisional Conferences if requested by a majority of Divisional Branches or by a petition signed by not less than 10% of the financial members of the Division. That rule contains the following provision:
“The Divisional Secretary may at any time thought fit conduct a postal, telephonic, telegraphic, facsimile and/or any other form of vote of members of Divisional Conference to obtain a decision on any matter.”
21 Elections for the Divisional Executive are held every four years (commencing in 1993): Divisional Rule 9.2, and the process for conducting those elections commences in September of the election year. Pursuant to Divisional Rule 9.5, nominations are to be called by the returning officer on the last Friday in September in the year of the Divisional Conference. Rule 9.1 of the Divisional Rules sets out the composition of the Divisional Executive:
“There shall be a Divisional Executive composed of one (1) Divisional President, three (3) Joint Divisional Senior Vice‑Presidents, three (3) Divisional Vice‑Presidents, Divisional Secretary, two (2) Divisional Assistant Secretaries and such Divisional Branch Secretaries who are not elected to any of the aforementioned positions on the Divisional Executive.”
22 The Divisional Executive is given extensive powers. Divisional Rule 9.15 provides:
“The Divisional Executive shall, have and may exercise, subject to the review of its actions by Divisional Conference, the care, control, superintendence, management and administration in all respects of the affairs, business, Divisional funds and the property of the Division and have and exercise all of the powers of the Divisional Conference, and, without limiting the generality of the foregoing it may –
(a) Interpret and enforce the general policy of the Division;
(b) Control and conduct the business and affairs of the Division;
…
(n) To make, alter and rescind rules.”
(emphasis added)
The postal vote
23 At some time after 27 March, Mr Sutton decided to conduct the review which Mr Kingham had sought by way of a postal vote of Divisional Conference delegates. On 10 April 2001, he sent a letter dated 9 April 2001 to each of the delegates to the Divisional Conference in the following terms:
“ Re: REVIEW OF DIVISIONAL EXECUTIVE RESOLUTION
Please find attached a ballot paper on which you are asked to record your vote as to whether or not you agree with a resolution adopted by Divisional Executive at its meeting on 22 March 2001.
The background to this ballot is that by a resolution of 22 March 2001 the Divisional Executive adopted a series of rules changes to the rules of the Division. Four members of the Divisional Executive subsequently sought and obtained a ruling that there was an arguable case from Justice Goldberg of the Federal Court of Australia, under which the Court is asked to hear argument, in effect, that those rules changes should not take effect until they are referred for review by a Divisional Conference of the Division. An interlocutory Order of the Court prevents the Union giving effect to the rules amendments until a decision of the Court is given as to whether that interlocutory Order should continue or not.
On 27 March 2001, the Victorian Branch Secretary requested in writing a review of the decision of Divisional Executive to pass the resolution attached to the ballot paper attached to this letter. I have decided, particularly in view of the fact that Justice Goldberg’s decision has been pending for some time, that it is appropriate under sub‑rule 8(xv) for me to obtain a decision on the matter upon which Comrade Kingham has sought the review; namely whether Divisional Conference members agree with or do not agree with the terms of that resolution, including the proposed changes to the Division’s rules.
The ballot for these changes will remain open until close of business on Monday 23 April 2001. Please return your completed ballot paper to me on or before that date.”
The ballot paper was in the following form:
“REVIEW UNDER SUB‑RULE 8(x)(g) of DECISION OF EXECUTIVE
of 22 March 2001
Re: PROPOSED CHANGES TO THE RULES OF THE
CONSTRUCTION DIVISION OF THE CFMEU
Please indicate whether you agree with and confirm the decision of
Divisional Executive of 22 March 2001 set out in the attachment to the
ballot paper in the space provided underneath.
p Yes, I agree with and confirm
p No, I do not agree with and do not confirm.”
There was attached to the ballot paper the terms of the resolution which had been passed by the Divisional Executive on 22 March 2001 (par 15 above).
24 Mr Sutton said he made the decision to conduct a review of the decision of the Divisional Executive by a postal ballot of Divisional Conference delegates after taking into account the following matters:
· The decision should be reviewed by the supreme governing body of the Division as soon as practicable, given what he said was the serious disruption to the ordinary work of the Division over the issues which had arisen in relation to the elections.
· He believed that if he put forward a proposal for a meeting of the Divisional Conference to determine a matter under review, that proposal would be the subject of acrimonious disputation and would result in a considerable delay in invoking the mechanism in the rules by which a Special Divisional Conference could occur. He believed that a postal ballot would be a quicker way to obtain a democratic vote of the Division so that argument over the merits or otherwise of holding a Special Divisional Conference would be avoided.
· Judgment had not been given in relation to the application for interlocutory injunctions restraining the implementation of the decision to change the rules pending a review of that decision by the Divisional Conference (judgment was given on 12 April 2001). He thought that further litigation and expense might be avoided by conducting a review as speedily as practicable.
· The cost to the Division of conducting a meeting of the Divisional Conference in Sydney would be approximately $30,000.
· He did not believe that there would be an open democratic discussion on the issues currently in dispute in the meeting assembled, and he did not believe that at the conclusion of such a meeting the delegates would feel free to vote according to their consciences after listening to a debate.
25 The applicants challenged Mr Sutton’s claim that there had been a serious disruption to the ordinary work of the Division over the issues which had arisen in relation to the elections. Mr Kingham denied that there was any disruption in the affairs of the Victorian Branch of the Division which had been caused by the issues associated with the manner and the timing of the election of Divisional officers. Mr Sutton said that in the national office he and the national assistant secretary, Mr Alex Bukarica, who work in close proximity to each other, no longer speak to each other. (Mr Bukarica is contesting the position of Divisional Secretary held by Mr Sutton at the next election). Mr Sutton was still giving Mr Bukarica policy work to undertake and was still able to work with him. Mr Sutton said there was a major battle and tension inside the office over a power struggle for control of the Division.
26 According to Mr Kingham, the issues that would be discussed at a meeting of the Divisional Conference would be the same as those that were discussed at the meeting of the Divisional Executive on 21 and 22 March 2001. Mr Kingham said that the debate at that meeting was cool and calm, and that those present were at pains to ensure that the meeting ran in an orderly way. He did not agree that the debate was heated, although he said that there is a tradition of plain speaking in the building industry. Mr Sutton described the Divisional Executive meeting as two days of tension and hostility where tempers became frayed and people were taunting each other. He said a great deal of hostility and enmity was displayed, and he firmly disagreed with Mr Kingham’s view that the meeting was not heated or hostile and that there was no undue abuse.
27 It is not necessary to make any specific findings as to the extent to which the issues which have given rise to the various applications to the Court have caused a disruption, serious or otherwise, to the ordinary work of the Division. The issues which arise for determination on the application can be resolved by reference to the proper construction of the Divisional Rules, without making any findings as to whether the reasons which motivated Mr Sutton in making his decision to conduct the review by a postal ballot of the delegates to the Divisional Conference were valid reasons for the purposes of Divisional Rule 8(xv).
28 Although Mr Kingham and Mr Sutton had a different recollection of the manner in which the meeting of the Divisional Executive was conducted on 21 and 22 March 2001 it is, again, not necessary to make any findings in relation to these issues. I am prepared to accept that discussion at that meeting may have become heated and passionate. But the fact that passions may be inflamed by discussion at a meeting of an organisation is no reason not to call a meeting if it is otherwise required to be called by the relevant rules of the organisation.
29 If the Divisional Rules require a meeting of the Divisional Conference to be held at which delegates meet together and discuss the matters to be brought before the Divisional Conference, it is not relevant that Mr Sutton does not believe that there would be an open democratic discussion of those matters at the meeting, nor is it relevant that he believes that the delegates may not feel free to vote according to their consciences after listening to a debate. Mr Sutton appeared to take the view that the political reality of the matter was that the review would be superfluous and that delegates at the Divisional Conference would vote in accordance with the factions, to which they belong, on the Divisional Executive which voted on the issues raised in relation to the elections. If that be the reality, and I express no view whether it is or is not, it is no reason to ignore or disregard the framework of the decision‑making structure laid down by the Divisional Rules. If the Divisional Rules require a meeting of the Divisional Conference to be held to review a decision of the Divisional Executive, it is no reason to decide not to have such a meeting, but rather have a postal ballot, because it is said that the outcome can be predicted.
The Submissions
30 The applicants submitted that the power of the Divisional Secretary to conduct a postal ballot found in Divisional Rule 8(xv) was not unrestricted. They submitted that the power was subject to an implied limitation that postal ballots may only be used where considerations of urgency preclude the holding of a meeting. It was submitted that the power to hold a postal ballot was, by implied limitation, not available in relation to a review of a decision of the Divisional Executive. It was implicit in this submission that a review by the Divisional Conference of the actions of the Divisional Executive (for the purposes of Divisional Rule 9.15) was not the same process as obtaining “a decision on any matter” (for the purposes of Divisional Rule 8(xv)). Put another way, it was submitted that a review by the Divisional Conference of a decision taken by the Divisional Executive required for the purposes of Divisional Rule 9.15 was not undertaken by the carrying out of a postal ballot, but had to occur at a meeting of the Divisional Conference. The applicants submitted that a postal ballot, by its nature, precluded a genuine review as there was no facility for a consideration of all aspects of the matter on the review.
31 The applicants submitted, in the alternative, that if there was no implied limitation in the Rules that a postal ballot should only be conducted in situations of urgency which precluded the holding of a meeting, then the Divisional Rules contravened ss 196(a) and (c) of the Act.
32 The applicants also attacked the wording of the ballot because it did not allow the delegates to exercise the full range of their powers under Divisional Rule 8(x)(g). They submitted that the ballot was invalid because it required a positive or a negative vote to “agree and confirm”.
33 The five respondents who appeared in the proceeding and made submissions (Messrs Ferguson, McClelland, Sutton, Trohear and Wason) (“the respondents”) accepted that in appropriate circumstances, upon the true construction of Union rules, there could be implied into the rules of a registered organisation, a limitation on the express powers contained in the rules of the organisation. However, they submitted that such implied limitations as have been found have generally been within three categories:
· A duty not to exercise power contrary to law. The respondents referred to Dugmore v Porter (1982) 3 IR 418 at 423‑424; Ludwig v Harris (1991) 30 FCR 377 at 382‑383.
· A duty to exercise power bona fide and for the purpose for which it was given and not for some exterior or extraneous purposes. The respondents referred to Tanner v Maynes (1985) 7 FCR 432 at 440‑441; Allen v Townsend (1977) 31 FLR 431 at 483‑488; Darroch v Tanner (1987) 16 FCR 368 at 371‑372; Scott v Jess (1984) 3 FCR 263.
· A duty to afford procedural fairness to officers or members in relation to the exercise of powers under Union rules concerning dismissal of officers or expulsion of members. The respondents referred to Australian Workers’ Union v Bowen (1947) 77 CLR 601; Cains v Jenkins (1979) 42 FLR 188; Thompson v Hodder (1989) 31 IR 300.
The respondents submitted that the limitation which the applicants sought to imply on the express power of the Divisional Secretary under Divisional Rule 8(xv) was not within any of the established categories, and that the plain words of Divisional Rule 8(xv) told against such a limitation. The respondents submitted that the Divisional Rules did not create any right to have a Divisional Conference review any matter. They also contended that the Divisional Rules did not contravene s 196 of the Act.
Is Divisional Rule 8(xv) subject to an implied limitation?
34 The power given to the Divisional Secretary under Divisional Rule 8(xv) to conduct a postal vote, or other form of vote, of members of Divisional Conference is couched in wide terms. It has no particular limitation placed upon it and, in my view, is not subject to the implied limitation for which the applicants contend. The power relates to obtaining “a decision on any matter”. The range of matters in respect of which a Divisional Conference might be called upon to express a view or make a decision are myriad and delegates to the Divisional Conference are spread throughout the country. It is obviously convenient to obtain these views and make these decisions in a way which does not require the calling of a meeting each time a viewhas to be sought or a decision made. Not every issue will give rise to the same level of controversy.
35 Divisional Rule 8(xv) gives the Divisional Secretary a wide discretion as to the manner in which the vote of members of the Divisional Conference may be taken. The specified means, postal, telephonic, telegraphic or by facsimile allow for varying degrees of expedition in their implementation. But the rule enables the Divisional Secretary to use “any other form” of determining the vote of delegates. It is not immediately clear what other forms might be used, that is forms other than the forms specified in the rule. Nevertheless, the language used is such as to tell against any implication of the type for which the applicants contend.
36 There is nothing in the express terms of the Rules, the Act and Regulations or the nature, function and purpose of the Union which warrants the imposition of such an implied limitation. Although ss 187A(a) and (b) of the Act make it clear that the provisions of Pt IX of the Act are designed to encourage the democratic control of organisations and to encourage members of organisations to participate in the affairs of organisations, it does not follow that a postal vote is inconsistent with the democratic functioning of a union. A postal vote may not allow an interactive dialogue to occur in the course of its implementation, but it still allows for competing views to be presented, if thought appropriate, in the material which is delivered to delegates to enable them to consider, record and return their votes. What is important, for the purposes of the democratic control of the Division, and the democratic participation of the delegates to the Divisional Conference, is that their votes be sought and counted on any matter in respect of which a decision of the Divisional Conference has to be made. That result is achieved by a postal vote.
37 I do not consider there is any warrant for implying into the Divisional Rules a limitation on the power of the Divisional Secretary to conduct a postal vote of delegates to the Divisional Conference to determine a decision of the Divisional Conference. Such a limitation is not required to enable the intention of the Rules to be given full effect, nor is it required to ensure that the Division functions properly having regard to the objects of the Act and the control of the Division required by the Divisional Rules.
Can a review by the Divisional Conference of a decision of the Divisional Executive be conducted by postal vote?
38 I have considered first the submission that there is an implied limitation in the Divisional Rules on the power of the Divisional Secretary to conduct a postal vote to obtain the decision of the Divisional Conference on a matter, as that was the principal submission made by the applicants. However, the issue whether a “review” by the Divisional Conference of a decision of the Divisional Executive can be conducted by a postal vote logically arises before consideration of that issue.
39 A review of the “actions” of the Divisional Executive (contemplated by Divisional Rule 9.15) covers a much wider ground than considering and dealing with a “decision” of the Divisional Executive (as contemplated by Divisional Rule 8(xv)). There will be actions taken by the Divisional Executive which will not necessarily involve the making of a decision.
40 The respondents submitted that the Divisional Rules did not create any right in a member of the Union to have a review of a decision of the Divisional Executive undertaken by the Divisional Conference, or to have the Divisional Conference “confirm, over‑rule or otherwise deal with” decisions of the Divisional Executive. It was submitted that a member could only request a review, and that it was then a matter for the Divisional Conference to determine whether it would review a decision of the Divisional Executive. The respondents contrasted the provisions relating to a review of the actions of the Divisional Executive with the provisions relating to appeals against decisions of the Divisional Executive: Divisional Rule 8(x)(j), and with the provisions relating to references of matters to the Divisional Conference: Divisional Rules 8(x)(f) and 8(xvi). It was said that the latter provisions created a right to have an appeal heard and a reference undertaken, whereas the former was not couched in terms of the creation of a right.
41 There is no provision in Divisional Rule 9.15 which sets out a mechanism for the institution of a review or the right to call for a review to be undertaken. There is no provision which sets out who has the right to call for a review of the actions of the Divisional Conference, and there is no provision which sets out how a meeting of the Divisional Conference is to be called once a review has been sought. The Divisional Rules are silent on the issue of the calling of a Divisional Conference to undertake a review of the actions of the Divisional Executive. Unless the Divisional Executive refers a matter to the Divisional Conference and the Divisional Secretary calls a Special Divisional Conference: Divisional Rule 8(xvi), or a majority of Divisional Branches call for such a meeting or a petition signed by 10% of the financial members of the Division is received: Divisional Rule 8(xv), a review of the actions of the Divisional Executive by the Divisional Conference must await the biennial meeting of the Divisional Conference to be held some time after September 2001: Divisional Rule 9.5.
42 But there is no provision in the Divisional Rules which creates or establishes the right in any person to ask the Divisional Conference to undertake a review of the actions of the Divisional Executive. The language of Divisional Rule 9.15 is couched in terms which leave it to the Divisional Conference to determine whether it will review any actions of the Divisional Executive. It is not required to do so, even though it may be asked to do so by a member of the Division or a member of the Divisional Executive.
43 The Divisional Conference, if requested, is only required to consider whether it will undertake a review of the action of the Divisional Executive. For example, if a request is made by a member of the Divisional Executive for a review by the Divisional Conference of a Divisional Executive action, the Divisional Conference can decline to undertake the review sought. Divisional Rule 8(x)(g) is discretionary as to the outcome of the review by the Divisional Conference, and Divisional Rule 9.15 is discretionary as to whether any review is to be undertaken.
44 Put shortly, if requested, the Divisional Conference is not under any duty to undertake a review of the action of the Divisional Executive. It may do so if it so resolves.
45 Nevertheless, the respondents accepted that Mr Kingham had asked for a review of the decision of the Divisional Executive to make the rule amendments. They submitted that the postal ballot constituted the undertaking of such a review, and that the decision which will be obtained on the outcome of the postal ballot will constitute the review. The respondents submitted that the decision reached as a result of the postal ballot constituted the review, because all that was required for a review was a reconsideration of the original matter de novo.
46 Notwithstanding the wide and general terms of that part of Divisional Rule 8(xv) which empowers the Divisional Secretary to conduct a postal vote or any other form of vote, I do not consider that it provides a means for undertaking a review of any action of the Divisional Executive contemplated by Divisional Rule 9.15. The obtaining of “a decision on any matter’, contemplated by Divisional Rule 8(xv) is not the same process or procedure as is required for the purpose of undertaking a “review” of the actions of the Divisional Executive.
47 The Divisional Conference does not undertake a review of the decision of the Divisional Executive to make the rule amendments which were made on 22 March 2001 when the Divisional Secretary conducts a postal ballot in the terms set out in his letter of 9 April 2001 and the ballot paper enclosed with that letter. I consider that “a review” of an action of the Divisional Executive requires more than simply obtaining a vote by Divisional Conference delegates on the same resolution which was placed before the Divisional Executive.
48 There is considerable learning as to the meaning, scope and extent of a “review” in the judicial and administrative review area: see, eg, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52; McDonald v Guardianship and Administration Board [1993] 1 VR 521. But this learning is of little assistance in the present context as the learning is overlaid with, and complicated by, particular statutory provisions and issues where the concept of “review” is compared and contrasted with “re‑hearing” and “appeal”. As Burchett and Hill JJ pointed out in Adams v Yung (1988) 83 FCR 248 at 301:
“The word ‘review’ is a word of wide meaning but dependent upon context.”
49 The context in which a “review” is provided is a provision (Divisional Rule 9.15) whereby the powers and scope of authority and activities of the Divisional Executive are set out, with the proviso that those powers and activities are to be subject to review by the Divisional Conference. Divisional Rule 9.15 provides that the Divisional Executive is to undertake “the care, control, superintendence, management and administration in all respects of the affairs, business, Divisional funds and property of the Division”. But any action taken by the Divisional Executive in relation to any of those matters is subject to review by the Divisional Conference. That includes any action taken in relation to the matters specified in subpars (a) to (n) of Divisional Rule 9.15.
50 Some of those actions may be constituted by specific decisions or resolutions of the Divisional Executive; some of those actions may, rather, be constituted by particular conduct, practices or aspects of management which are not constituted or evidenced by specific decisions or resolutions. Although some of the former may be capable of determination by a question which could be put to a postal vote, the latter type of actions may not be able to be resolved by way of a postal vote. For example, a review of the manner in which the Divisional Executive was administering the Divisional office would be unlikely to be resolved by a postal vote. It should also be noted that, in accordance with Divisional Rule 8(x)(g), the Divisional Conference has a wide range of powers open to it upon a review of a decision of the Divisional Executive. It can confirm or over‑rule the decision but it can also deal with it “otherwise”, that is in any other way. Such a power suggests that a review by the Divisional Conference must be such a process as will allow that range of powers to be exercised. That cannot occur on a postal vote, but can occur at a meeting of the Divisional Conference.
51 These considerations demonstrate that a review of the “actions” of the Divisional Executive involves more than simply putting to a vote by the Divisional Conference, a matter previously submitted as a resolution to be voted upon by the Divisional Executive. A review of the actions of the Divisional Conference, in the context of Divisional Rule 9.15, involves a reconsideration of the matter, being the action of the Divisional Executive, at a meeting of the Divisional Conference because it is not just a matter of a vote to affirm, confirm or disagree with a particular resolution or decision passed or made by the Divisional Executive.
52 Dictionary definitions of “review” support the view that, in the context in which the expression appears in Divisional Rule 9.15, it means a re‑examination or re‑consideration of the issues which constitute the action under review. The Macquarie Dictionary relevantly defines “review” as “a viewing again; a second or repeated view of something” and as a verb “to view, look at; or look over again”. The Oxford English Dictionary relevantly defines “review” as “ a general survey or reconsideration of some subject or thing” or “a retrospective survey of past actions”.
53 The review required by Divisional Rule 9.15 is therefore to be carried out and undertaken at a meeting of the Divisional Conference at which the relevant action of the Divisional Executive may be looked at again and reconsidered. It is not just to be voted upon. Although the Divisional Conference has the power, after such reconsideration, to affirm, confirm or reject the resolution passed by the Divisional Executive, it is not limited in its review process to simply voting whether to affirm, confirm or reject that resolution.
54 I am therefore satisfied that the postal vote which Mr Sutton decided to conduct, and which was sent to delegates, under cover of a letter dated 9 April 2001, on 10 April 2001 did not constitute a review of the action of the Divisional Executive in passing the resolution on 22 March 2001. If a review is to be undertaken, it must be undertaken at a meeting of the Divisional Conference which is to be held towards the end of 2001, unless an earlier Special Divisional Conference is called pursuant to Divisional Rule 8(xv) or (xvi).
55 The Divisional Rules do not allow for the Divisional Secretary himself to call a meeting of the Divisional Conference for the purpose of it conducting a review of the action or actions of the Divisional Executive, unless the Divisional Executive has referred the matter of the review to the Divisional Conference in accordance with Divisional Rule 8(xvi).
56 Mr Kingham sought a review of the decision of the Division Executive to make the rule amendments on 22 March 2001. It is not for the Divisional Secretary to decide that the review should be undertaken; the decision whether to undertake the review is for the Divisional Conference. However the decision whether to undertake the review may be determined by a postal ballot, if the Divisional Secretary thinks it fit to have the decision made in this way: Divisional Rule 8(xv). If the decision, determined by the postal ballot, is that such a review be undertaken, then the review is to be undertaken at a biennial meeting of the Divisional Conference or at an earlier Special Divisional Conference called pursuant to Divisional Rule 8(xv), or, if referred to the Divisional Conference by the Divisional Executive, called by the Divisional Secretary pursuant to Divisional Rule 8(xvi). If the decision, determined by the postal ballot is that such a review not be undertaken, then the Divisional Rules do not require any review to be undertaken.
57 The postal vote initiated and undertaken by Mr Sutton is therefore misconceived. It was not for Mr Sutton to conduct a review by the Divisional Conference of the decision of the Divisional Executive by postal vote. However, it is open to him, if he thinks fit, to conduct a postal vote of delegates to the Divisional Conference on the question whether to conduct a review of the decision of the Divisional Executive to make the rule amendments which were made on 22 March 2001. That question was not put to the delegates by Mr Sutton.
58 It is therefore not necessary to consider the applicants’ alternative submission that to the extent to which there is not implied in the Divisional Rules a limitation on the power of the Divisional Secretary to conduct postal ballots only where considerations of urgency preclude the holding of a meeting of the Divisional Conference, the Divisional Rules contravene ss 196(a) and (c) of the Act.
59 It is also not necessary to consider the applicants’ submission that the wording of the ballot is confusing and does not allow for the full exercise of the powers provided for in Divisional Rule 8(x)(g).
60 Orders should, therefore, be made to the effect that the respondents and in particular, Mr Sutton, observe the Divisional Rules by treating the postal ballot initiated by Mr Sutton’s letter of 9 April 2001 as null and void and of no effect.
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I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 9 May 2001
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Counsel for the Applicants: |
H Borenstein |
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Solicitor for the Applicants: |
Slater & Gordon |
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Counsel for the Respondents: |
S C Rothman SC and J H Pearce |
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Solicitor for the Respondents: |
Taylor & Scott |
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Date of Hearing: |
23, 24 April and 1 May 2001 |
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Date of Judgment: |
9 May 2001 |
