FEDERAL COURT OF AUSTRALIA
Griffiths v Ansett Pilots Association [2001] FCA 1215
INDUSTRIAL LAW - Organisations - Rules challenged as not providing for control of committee by members as required by s 195(1)(b)(iv) of Workplace Relations Act 1996 - small association with members based at five locations around Australia - association having no branches - sufficiency of control over committee of management provided by rules considered without reference to plebiscite rule - adequacy of plebiscite rule which empowers committee of management to formulate question - 15% of members required to petition for plebiscite to be conducted - effect of delay of up to six months which might occur between receipt of petition and completion of plebiscite.
Workplace Relations Act 1996 (Cth) ss 3, 187A, 195(1), 196
Hodder v Australian Workers Union (1985) 9 FCR 498
Gordon v Carroll (1975) 27 FLR 129
Pillar v Building Workers’ Industrial Union of Australia (1994) 48 FCR 512
Boland v Munro (1980) 48 FLR 66
Maynes v Clarke (1989) 28 IR 94
Allen v Townsend (1977) 31 FLR 431
Ford v Federated Miscellaneous Workers Union of Australia (1954) 79 CAR 147
Municipal Officers Association v Lancaster (1981) 54 FLR 129
Doyle v Australian Workers Union (1986) 12 FCR 197
DAVID EDWIN GRIFFITHS v ANSETT PILOTS ASSOCIATION
V240 of 2000
RYAN J
MELBOURNE
30 AUGUST 2001
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
V240 of 2000 |
|
BETWEEN: |
DAVID EDWIN GRIFFITHS Applicant
|
|
AND: |
ANSETT PILOTS ASSOCIATION Respondent
|
|
DATE OF ORDER: |
|
|
WHERE MADE: |
THE COURT ORDERS:
1. THAT it be declared that the rules of the Ansett Pilots Association (“the Association”) contravene s 196 of the Workplace Relations Act 1996 (“the Act”) in a particular respect, namely that they fail to provide for control of the Committee of Management by the members of the Association as required by s 195(1)(b)(iv) of the Act.
2. THAT the Association be released from the undertaking given to the Court before North J on 26 June 2000.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
V240 of 2000 |
|
BETWEEN: |
Applicant
|
|
AND: |
Respondent
|
|
JUDGE: |
|
|
DATE: |
|
|
PLACE: |
REASONS FOR JUDGMENT
1 On 27 April 2000 I granted a rulenisi calling on the Ansett Pilots Association (“the Association”) to show cause why orders should not be made declaring that the registered rules of the Association contravene s 196 of the Workplace Relations Act 1996 (Cth) (“the Act”), in that they;
“(1) ..... contravene section 196 of the [CTH] Workplace Relations Act 1996 in a particular respect namely the rules are contrary to, or fail to make a provision required by, section 195(1)(b)(iv) of the Act which relevantly requires that the rules of an organisation shall provide for the control of committees of the organisation by the members of the organisation;”
“(2) ..... impose on applicants for membership, or members, of the organisation, conditions obligations or restrictions that, having regard to the objects of the Act and the purposes of the registration of organisations under the Act are oppressive unreasonable and unjust in that:
(a) the said rules and in particular rule 56 deny to the members the right to require a referendum to be held to determine issues from time to time unless also called for by the Committee of Management or by a General Meeting;
(b) the said rules and in particular rule 56 create no obligation to carry out a referendum within a reasonable time of a referendum being required;
(c) the said rules and in particular rule 56 provide that the determination of the result of a referendum requires a two-thirds majority of the votes cast;
(d) the said rules and in particular rules 25 and 56 omit to provide that the result of a referendum shall be binding upon the Committee of Management.”
2 At the time when that rule nisi was granted, the rules of the Association contained rule 56 providing, in the following terms, for the conduct of a plebiscite;
“ 56 REFERENDA
When a referendum is required by the Committee of Management or a General Meeting to determine issues from time to time, it shall be carried out by the Returning Officer in the following manner:
(a) The referendum shall be a secret ballot;
(b) Ballot papers shall be posted to each Member’s home address together with voting instructions and two envelopes to be used as follows:
(i) The completed ballot paper to be placed inside the small envelope which has no marking on it;
(ii) The small envelope to be placed inside another envelope bearing the Member’s name and address or identification number on the back, which is to be returned to the Returning Officer;
(c) The Returning Officer should use the addressed or numbered envelope to ensure that there are no irregularities in the voting;
(d) The closing date of a referendum should be at least 28 days after the date of posting of the ballot papers;
(e) It is competent for the Returning Officer to appoint an Acting Returning Officer or Officers as required to assist in conducting a referendum;
(f) At the counting of the ballot there should be 2 scrutineers;
(g) It is the Returning Officer’s responsibility alone to determine informal votes;
(h) The result of the referendum shall be determined by a two thirds majority of the votes cast and shall be binding upon all Members of the Association.”
3 The primary complaint which underlay the application for the rule nisi in its original form was that the rules of the Association did not allow members of the Association to initiate a plebiscite unless the Committee of Management (“COM”) or a General Meeting decided also to require one. As well, it was contended that the rules did not provide that a referendum must be completed within a reasonable time or that the results should be binding on the COM. Finally, attention was drawn to the requirement that, to be carried, a referendum had to attract affirmative support from two-thirds of the votes cast.
4 On 24 May 2000, the Court was informed that the COM of the Association had formulated a new rule in substitution for the existing rule 56 and an application for certification of that new rule was pending before the Industrial Registrar. Accordingly, on that date, I adjourned the return of the order nisi to await the outcome of the application for certification of the proposed new rule 56. That rule was, in fact, certified on 23 June 2000 and is in the following terms:
“ REFERENDA
(a) A referendumshall be carried out, if required by a resolution of the Committee of Management, or if required by a resolution of a General Meeting of Members, to determine issues from time to time.
(b) In addition to paragraph (a) a referendum will be held upon receipt of a petition signed by 15% of financial members raising a matter or issue for determination, in accordance with the following:
(i) The petition shall be forwarded to the Secretary of the Association; and
(ii) Within 45 days of receipt by the Secretary of the petition the Committee of Management will by resolution frame a question for the referendum.
(c) The referendum shall be carried out by the Returning Officer in the following manner:
(i) The referendum shall be a secret ballot;
(ii) The referendum shall be commenced by the posting of ballot papers to each Member’s home address within 100 days of the date of resolution referred to in Rule 56(a) or Rule 56(b)(ii);
(iii) The ballot papers will include voting instructions and two envelopes to be used as follows:
The completed ballot paper to be placed inside the small envelope which has no marking on it;
The small envelope to be placed inside another envelope bearing the Member’s name and address or identification number on the back, which is to be returned to the Returning Officer;
(iv) The Returning Officer should use the addressed or numbered envelope to ensure that there are no irregularities in the voting;
(v) The closing date of a referendum should be at least 28 days after the date of posting of the ballot papers;
(vi) It is competent for the Returning Officer to appoint an Acting Returning Officer or Officers as required to assist in conducting a referendum;
(vii) At the counting of the ballot there should be 2 scrutineers;
(viii) It is the Returning Officer’s responsibility alone to determine informal votes;
(ix) The result of the referendum shall be determined by a majority of the votes cast and shall be binding upon all Members of the Association including the Committee of Management.
(d) Any referendum commenced after the certification of this Rule by a Registrar of the Australian Industrial Registry shall be conducted in accordance with this rule.”
5 The insertion of that new rule has not completely assuaged the applicant’s concerns. Accordingly, he was granted leave at the outset of the hearing on 21 August to amend the rule nisi, to call on the Association to show cause why the Court should not make orders declaring that:
“(1) the rules of the Ansett Pilots Association contravene section 196 of the [CTH] Workplace Relations Act 1996 in a particular respect namely the rules are contrary to, or fail to make a provision required by, section 195(1)(b)(iv) of the Act which relevantly requires that the rules of an organisation shall provide for the control of committees of the organisation by the members of the organisation;
(2) the rules of the Ansett Pilots Association impose on applicants for membership, or members, of the organisation, conditions obligations or restrictions that, having regard to the objects of the Act and the purposes of the registration of organisations under the Act are oppressive unreasonable and unjust in that :
(a) the said rules and in particular rule 56 does not allow for members to frame the question for referendum;
(b) the said rules and in particular rule 56 create no obligation to carry out a referendum within a reasonable time of a referendum being required;
(3) Rule 56 of the rules of the Ansett Pilots Association contravenes s. 196 of the Workplace Relations Act 1996 in that it imposes on members of the Association conditions, obligations or restrictions that, having regard to the objects of the Act and the purposes of the registration of organisations under the Act are oppressive, unreasonable or unjust.
PARTICULARS
The provisions of rule 56 which are contrary to s.196 are:
(a) (i) r.56(b)(ii);
(ii) r.56(c)(ii);
(iii) r.56(c)(v);
These rules fix a period of time for the holding of a referendum which because of its duration is oppressive, unreasonable or unjust.
(b) r56(b)(ii) which removes from petitioning members and gives to the Committee of Management the right to frame the question for the referendum.”
6 It will be seen that the applicant regards the new rule 56 as ineffective to remedy the alleged deficiency in the rules on which he originally relied. They do not provide for the control of the COM by members of the organisation as required by s 195(1)(b) of the Act. Section 195(1) provides, so far as is relevant:
“The rules of an organisation ......
(b) shall provide for:
... ... ... ... ...
(iv) the control of committees of the organisation and its branches respectively by the members of the organisation and branches;
.....”
7 Section 195 finds its place in Pt IX of the Act, the objects of which, as recited in s 187A are:
“(a) to encourage the democratic control of organisations; and
(b) to encourage members of organisations to participate in the organisations’ affairs; and
(c) to encourage the efficient management of organisations.”
8 In addition, one of the principal objects of the Act as a whole is expressed in s 3 in these terms:
“The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
.....
(g) ensuring that employee and employer organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively;
.....”
9 It is common ground that the control provided for by the rules must be available in a practical sense and must not be susceptible to obstruction or unreasonable delay by the committee concerned. Therelated general observation can be made, in this context, that the reasonableness of the rules of an organisation, within the meaning of s 196 of the Act, is to be measured by what is practicably achievable under the rules in the actual circumstances in which they operate. Section 196 provides, so far as is relevant;
“The rules of an organisation;
(a) shall not be contrary to, or fail to make a provision required by, this Act or an award or certified agreement, or otherwise be contrary to law;
... ... ... ... ...
(c) shall not impose on applicants for membership, or members, of the 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.”
10 The circumstances to which I referred in the last paragraph, or “extrinsic facts” as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which the members are engaged. Thus, in Hodder v Australian Workers Union (1985) 9 FCR 498, in a passage subsequently approved by Gray J in Lawley v Transport Workers Union (1987) 22 IR 114 and by a Full Court of the Industrial Relations Court of Australia (Wilcox CJ, Moore and Madgwick JJ) in Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59, Pincus J said, at 502;
“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) 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. For example, the prescription of a particular composition for the Executive may become unreasonable because of changes in the distribution of the membership around the nation. 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 a 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.”
11 Another illustration of the application of a provision like s 196(c), in the context of the extrinsic facts pertaining to a particular organisation, is afforded in Gordon v Carroll (1975) 27 FLR 129, where a Full Court of the Australian Industrial Court (Smithers, Woodward and St. John JJ) observed, at 173;
“Each case must be determined on its own special facts. These should include: (1) the total number of members in each of the various branches of the organization; (2) the number of members who live or work within convenient travelling distance of the place of meeting; (3) the ease or difficulty in contacting or canvassing members - this will often depend on their concentration in places of work; (4) the attendance history of an organization over the years - thus a provision which appears reasonable at the time it is introduced may be shown by experience to be unrealistic and therefore unreasonable; the reverse may also occur; and (5) the existence of other methods of exercising control over an executive, such as the ability to demand a referendum, will often be important.
Taking all these matters into consideration, we are of the opinion that a requirement of five per cent attendance at meetings of the type being considered is not of itself unreasonable or oppressive or a breach of the regulations. But we think it becomes so, in the case of this organization, when it produces the result that 825 members are required as a quorum for meetings of the Victorian No. 1 branch if any directions are to be given to the executive committee on matters within its purview.”
Factual background
12 The Association is an organisation of employees registered under the Act and, it appears, is comprised exclusively of persons employed as pilots in the Ansett Australia Division of Ansett Australia Limited (“Ansett”) on airline services within, or extending beyond, the Commonwealth of Australia. Ansett employs approximately 815 airline pilots of whom about 763 are members of the Association. Members of Ansett’s pilot workforce are based in four Australian capital cities and Cairns in the sense that they reside in and work from one of those cities. The distribution of Ansett pilots between the various bases is as follows:
|
Melbourne |
261 |
|
Sydney |
282 |
|
Brisbane |
155 |
|
Perth |
105 |
|
Cairns |
12 |
|
|
|
|
Total |
815 |
13 General meetings of the Association are governed by rules 34 to 37, which provide:
“34 GENERAL MEETINGS ‑ NOTIFICATION
(a) Annual General Meetings of the Association shall be held during August of each year at such place as shall be prescribed by the Committee of Management;
(b) All other meetings held pursuant to this clause shall be called General Meetings;
(c) The President or the Committee of Management may whenever he/she or it thinks fit convene a General Meeting of the Association and the President shall, on the requisition in writing of at least 25 Members of the Association, forthwith proceed to convene a General Meeting, to deal with any business set out in such requisition;
(d) The requisition shall state the objects of the meeting, and shall be signed by the requisitionists, and deposited with the Secretary;
(e) If the President does not within 14 days from the deposit of the requisition proceed to convene a meeting, the requisitionists may themselves convene a meeting, but any meeting so convened shall not be held after the expiration of 3 months from the said date of deposit of the requisition;
(f) Seven days’ notice at least specifying the place, the day and the hour of the meeting, and in the case of special business the general nature of that business, shall be given to all Members of the Association;
(g) The accidental omission to give notice of a meeting to, or the non‑receipt of a notice, by, any Member, shall not invalidate the proceedings of any meeting.
35 GENERAL MEETINGS ‑ ATTENDANCE
(a) Twenty Members shall constitute a quorum at a General Meeting;
(b) If, within 30 minutes from the time appointed for a meeting, a quorum is not present, the meeting shall be abandoned;
(c) If the President is not present within 30 minutes after the time appointed for holding the meeting or being present is unwilling to act as Chairperson, the Members present shall choose someone of the Committee of Management present to be Chairperson.
36 GENERAL MEETINGS ‑ VOTING
(a) Questions arising at any General Meeting shall be decided by a majority of the votes of Members present in person or by proxy;
(b) Voting shall ordinarily be by show of hands but shall be by secret ballot on the request of any ten members.
37 GENERAL MEETINGS ‑ PROXIES
(a) Proxies for General Meetings must be in writing and shall refer to a specific meeting but shall be deemed to relate to any adjournment or continuation of that meeting;
(b) It must state the name of the Member who is to carry the proxy voting right and shall be limited to 1 name only;
(c) Members attending such meetings shall not have the right to carry more than 3 proxies;
(d) The Chairperson of the meeting, shall on presentation of such proxies check each one and ensure that it complies with the intent of this rule;
(e) The Chairperson shall rule as to the validity of a proxy.”
14 It will be seen that the rules do not provide for a general meeting to be held at one specified place. However, they do contemplate that each general meeting shall be held at only one place prescribed, in the case of an Annual General Meeting, by the COM, and specified for any other general meeting by the COM or the President. The applicant has indicated his view of the effect on members of this aspect of the rules by deposing;
“8. By reason of their location in places other than Melbourne it is difficult for airline pilots conveniently to attend general meetings of the Association which are always held in Melbourne. In addition to geographical difficulties, at any one time substantially more than half of the members of the Association are likely under their rosters to be preparing for flight duties, engaging in flight duties, or resting after flight duties. Less than one half of the members of the Association are available to attend a General Meeting. Those airline pilots who might wish to attend a General Meeting and who are not based or domiciled in Melbourne are required to meet the cost of their flight to Melbourne to attend a general meeting.”
15 In the same affidavit the applicant has deposed that 26 members of the Association attended its 1997 Annual General Meeting, of whom 13 were members of the COM. The 1998 Annual General Meeting was attended by 34 members, of whom 15 were members of the COM. In 1998, 20 members attended in person and a further 11 by proxy. Of those attending in person, 11 were based in Melbourne, 6 in Sydney, and 3 in Brisbane. There was no attendance by any member based in Perth or Cairns.
16 In one of several affidavits sworn by Mr Halls, the former President of the Association, the following suggestion is made by way of seeking to minimise the difficulty occasioned for members who would have to attend a general meeting outside their home base:
“3. All Pilots employed by Ansett are entitled to receive concessional travel from their employer, this includes:
(i) One (1) free flight per month to any destination in Australia; together with,
(ii) Discount flights to any destination in Australia, such as for example, a flight from Melbourne to Brisbane costing approximately $60.”
17 Each member of the COM is elected to hold office for two years and half of the members of the COM retire each year. Rule 39(c) and (h) indicate that members are confined to their own pilot base for the purpose of nominating and voting for candidates for elections to the COM. Those paragraphs provide:
“(c) Each Member at a pilot base may nominate for election to the Committee of Management up to 5 Members at his/her pilot base to serve on the Committee of Management for 2 consecutive years or until earlier replaced in accordance with these Rules;
.....
(h) After all nominations have been received the Returning Officer shall if an election is necessary cause ballot papers to be prepared for each relevant pilot base, and mailed by prepaid post to the Members of the Association at the relevant pilot base prior to 23 June each year, together with a reply paid envelope addressed to the Returning Officer at a post office box under his/her exclusive control. The Returning Officer shall ensure that facilities are provided for the return of the completed ballot paper by post by the voter without expense to him/her;”
18 The number of members of the COM to be elected from each pilot base is prescribed by rule 23(c). Rule 23 is in these terms:
“COMMITTEE OF MANAGEMENT
(a) The business of the Association shall be conducted by the Committee of Management.
(b) The Committee of Management shall consist of Committee Members, including those elected as Office Bearers, and shall number 1 Committee Member per 30 Members in each pilot base as at 01 May each year.
(c) Each pilot base is to operate as an electorate for the purpose of electing representatives by and from each pilot base to the Committee of Management, however, if at 01 May each year the Members in a pilot base number less than 30, then those Members shall be included in another pilot base, for the purpose of electing representatives to the Committee of Management.
(d) “Pilot Base” refers to those geographic locations to which Pilots are assigned.”
19 Rule 25 prescribes the powers and duties of the COM by providing:
POWERS AND DUTIES ‑ COMMITTEE OF MANAGEMENT
(a) The Committee of Management shall have the power to do all things necessary or convenient for achieving the objects of the Association, and shall have the duty to ensure that the Association at all times acts in a manner that furthers the objects of the Association, as defined by the Rules.
(b) The Committee of Management shall be responsible to the Members of the Association for carrying out the policies determined by the membership in General Meeting or by plebiscite, and may appoint subcommittees of Members of the Association, who will act in an advisory capacity only.
(c) Each Member of the Committee of Management, in addition to any other powers or duties he/she may have pursuant to these Rules, shall be obliged to attend every meeting of the Committee of Management, unless it is impracticable or impossible for him/her to do so, in which case he/she shall be obliged to express an apology for the meeting. Each Member of the Committee of Management is obliged to participate in the affairs of the Committee of Management.”
20 The office-bearers of the Association are elected annually in a collegiate election by and from the members of the COM [rules 24(a) and 40(b)]. By rule 30(a), meetings of the COM “will normally be called monthly but may be called at any time by the President and whenever requested by one-third of the Committee Members.”
21 Rule 39 governs election of the COM and provides, so far as is relevant;
“(a) The yearly election of Committee Members shall be by secret postal ballot of all financial Members conducted by a Returning Officer who is not the holder of any office in, or an employee of, the Association or a branch, section or division of the Association;
... ... ... ... ...
(c) Each Member at a pilot base may nominate for election to the Committee of Management up to 5 Members at his/her pilot base to serve on the Committee of Management for 2 consecutive years or until earlier replaced in accordance with these Rules;
... ... ... ... ...”
22 The ordinary term of office of a member of the COM is two years, so that half the Committee retires each year [rule 42].
23 General meetings are governed by rule 34, which has been set out in [13] above.
24 Voting at general meetings can be in person or by proxy and a resolution may be carried by a bare majority of voters [rule 36(a)]. Rule 37, in relation to proxies, is also reproduced in [13] of these reasons and limits to three the number of proxies which may be held by each member in attendance.
Do the rules of the Association comply with s 196 without reliance on the plebiscite mechanism in rule 56?
“The Victorian Branch Rules as certified on 24 July 1991 provided the members with a degree of control over the actions of the SMC independently of the referendum provisions. As in McLeish v Kane [(1978) 36 FLR 80] there was provision for elections to the SMC at regular intervals. Although the SMC was not required to meet at regular intervals, by r 23(14) it could meet as and where it might decide, and the Secretary was on the request of any six members (scil of the SMC) obliged to call a special meeting of it. As well, there was a practicable, although, as I have held, an unduly restricted facility afforded by r 22A for the members to obtain a plebiscite. Most importantly, by r 21 the SMC was subject to the direction and control of State Conference, a special meeting of which had to be called on receipt of a petition of not less than 10 per cent of the financial members of the Branch. That right to petition was not qualified by any of the evidentiary restrictions to be found in r 22A some of which I have criticised above as unreasonably onerous. In the light of all these circumstances, I am satisfied that the rules as certified on 24 July 1991 provided sufficiently for the control of the SMC and State Conference by the members of the Victorian Branch.”
Is the new rule 56 too circumscribed to give the members sufficient control of the COM?
27 The issue of control of the COM by the members of the association is made relevant to the application of s 196(a) of the Act by s 195(1)(b)(iv), which provides;
“The rules of an organisation:
... ... ... ... ...
(b) shall provide for:
... ... ... ... ...
(iv) the control of committees of the organisation and its branches respectively by the members of the organisation and branches;”
“In our opinion in reg. 115(1)(d)(v) the word “control” is to be construed in the sense of meaning the fact of checking and directing action, a method or means of restraint. We do not accept the view that the word “control” is to be construed in the sense of directly controlling or commanding the activities of the committees.
Whenever a question arises whether the rules of an organization fail to provide for the control of the committees of the organization by the members of the organization it is necessary to consider the whole of the rules of the organization, the method of electing the committees, the term of office of the members of the committee and the powers of members in general meeting. The absence of a power to call for a referendum on the decisions of a committee will not necessarily mean that the rules fail to provide for control of committees of the organization by the members. The presence of a power to call for a referendum on the decisions of a committee may, having regard to the other rules of the organization, ensure that the rules comply with reg. 115(1)(d)(v), which rules otherwise would not comply with that regulation. Each case must depend upon its own particular facts and the particular rules of the organization involved. As far as the word “control” is concerned we would with respect agree with the opinion expressed by Joske J in Mackenzie v Administrative and Clerical Officers’ Association, Commonwealth Public Service (1962) 5 FLR 342, at pp 364-365.”
29 In the last-mentioned case Joske J held that “control” in the requisite sense meant a power to check or restrain and did not envisage dominating control.
(i) The requirement for the COM to frame a question for the referendum.
30 In my view, the reservation to a designated officer or officers or a committee of an organisation or branch, to settle or formulate the question on which petitioners seek the views of members in a plebiscite, is not fatal to the validity of a plebiscite rule. In Maynes v Clarke (1989) 28 IR 94, a Full Court of this Court, (Northrop, Gray and Pincus JJ) considered r 32 of the rules of the Federated Clerks Union, which provided;
“Ballots on any question shall be held:
(a) When directed by the National Council or National Executive, or
(b) when any three or more Branches having collectively more than one third of the total number of the National Councillors elected by the Branches, or any four or more Branches, so request by resolution of the Branch Council or in the case of Branches where no Branch Council exists of a special meeting of members summoned for that purpose, or
(c) upon petition signed by 10% of the members entitled to vote in such ballot.”
31 Four branches, by resolution, requested the conduct of a ballot of the whole membership, to decide questions going to the direct election, by secret postal ballot conducted by the Australian Electoral Commission, of specified officers for a term of four years. The national executive of the Union responded by erecting various procedural requirements as conditions to the conduct of the ballot and required a solicitor acting for the Union to seek a conference with solicitors for each of the branches “to put the proposal in a fair and proper form.” A member of the Union obtained a rule absolute, requiring the national officers to perform and observe the rules by holding a ballot on the questions, as formulated, by the resolutions of the four branches. Although the first question was prefaced “Do you agree that in order to make the Federated Clerks Union ........ more accountable to the whole membership .......”, Northrop and Gray JJ, on appeal, upheld the order of the primary Judge (Keely J) and observed, at 98, that, in evaluating the arguments for the appellants;
“it is necessary to remember that r 32 was chosen by the union as one method appropriate for the determination of issues which might arise amongst its members. No doubt, the rule was also chosen as one of the provisions which would satisfy the requirement, formerly found in reg 115(1)(d)(v) of the Conciliation and Arbitration Regulations, and now found in s 195(1)(b)(iv) of the Industrial Relations Act, that the rules make provision for the control of committees of the union by the members. Rule 32(1) provides that a ballot must be held if any one of the three conditions specified therein is satisfied. Here four branch councils have sought to avail themselves of the provisions of r 32(1)(b). It is not to the point that the conduct of a ballot might involve expense and inconvenience to the union. Still less is it significant that he majority of members of the national executive may take the view that the questions proposed by the four branch councils are slanted towards a particular answer, or are not phrased as well as they might be. Undoubtedly there are limits on the kinds of questions which can be put to ballots of the members of the union under r 32. Questions of pure political theory, with no possible practical result, or questions entirely unconnected with the affairs of the union may well be impermissible. The court should not be too ready to find that such implied limits have been transgressed. Rule 32 contains its own safeguards on the kinds of questions that can be put forward. Those questions must first receive the approval of bodies largely elected by the members of the union, or elected by the members of branches, or of a significant portion of the members of the union or of a branch. The choices of such persons as to the nature of questions, or their form, should not be set aside readily.”
32 Pincus J, who agreed in dismissing the appeal, regarded the prefatory words of the question as unacceptably tendentious but considered that they were severable.
33 The rule under consideration in Maynes v Clarke was silent as to how the plebiscite question should be formulated and whether any national officer or any other entity had a power to “settle” or reformulate it. That is not to say that a plebiscite rule which confers such a power necessarily imposes on those seeking the plebiscite a condition or restriction that is oppressive, unreasonable or unjust within the meaning of s 196(c). However, any power to reformulate a question must be exercised bona fide in the interests of the members of the organisation as a whole; see eg. Allen v Townsend (1977) 31 FLR 431 at 483 et seq. It must also, I think, preserve the substance of the matter which those seeking the plebiscite wish to be considered. Moreover, the extent to which a plebiscite rule is hedged about with conditions or restrictions prohibiting the right of petitioners to request, and the members, as a whole to give, their views on a matter of concern, will modify the contribution which such a rule can make to compliance by the rules, as a whole, with the requirement in s 195(1)(b)(iv) of the Act.
34 It still remains open to the framers of such a rule to strike a balance between the concern of the Act to give members a degree of control over committees of the organisation and not placing such “committees at the mercy of minorities or mischief-makers.” (See Ford v Federated Miscellaneous Workers Union of Australia (1954) 79 CAR 147 per Wright J at 163, quoted with approval by the Commonwealth Industrial Court (Spicer CJ, Dumphy and Morgan JJ, in Byrnes v Federated Ironworkers’ Association (1957) 3 FLR 309 at 314). Indeed, a rule which allows petitioners an unfettered right to frame the question as they see fit and insist on an answer to it at the expense of the organisation, may conceivably operate inimically to democratic control and the interests of the members of the organisation as a whole. I am therefore not persuaded that a plebiscite rule, which allows a committee of management to participate in formulating the question, is necessarily an unacceptable dilution of the control by the members, which such a rule is presumably designed to enhance.
(ii) Does the rule permit excessive delay in concluding a plebiscite?
35 It was pointed out by Mr Ginnane of Counsel for the applicant that, in its present form, rule 56 allows the COM 45 days from receipt of a petition in which to frame a question for the plebiscite. A maximum of 100 days can then elapse between the framing of the question and the posting of the ballot papers. A minimum of 28 days is then required to be allowed before the ballot can close. As a result, it was submitted, it is conceivable that more than 173 days or almost six months could elapse between the gathering of the requisite number of signatures on a petition and a determination of the plebiscite. There is no provision in the rules specifying how the Returning Officer, who is to conduct a plebiscite, is to be appointed. However, it seems that the COM appointed the Australian Electoral Commission (“the AEC”) or an officer of that Commission to conduct in March this year, a referendum required by the COM pursuant to the former rule 56. There is also evidence that the Acting Director, Industrial and Commercial Elections, of the AEC, regards it as feasible for the AEC to conduct a plebiscite within 42 days of being supplied with the question, allowing 14 days for preparation and posting of ballot papers and a further 28 days for the ballot to remain open.
36 Mr Ginnane contended that the time frame, which he had instanced, created unreasonable scope for delay in the exercise of control by members over the COM, which the rule purports to effectuate. The period of more than 173 days which may elapse between the completion of an effective petition and the ascertainment of the views of the members could, he reminded me, be more than half the time to elapse before the next election for the COM at which half of its members are required to retire.
37 On the other hand, Mr Dowling, supported by evidence from the Association’s former President, Capt. Halls, contended that a substantial time is necessary for the proper formulation, with legal advice if appropriate, of the question for the plebiscite and the dissemination of material for and against the proposal so that all members are fully informed before they exercise their right to participate in the ballot. The maximum of 45 days to elapse between receipt of the petition and the formulation of the question was also sought to be justified on the express ground that as many as 36 days may intervene between one monthly meeting of the COM and the next, and a further 10 days was thought reasonable to give the members of the COM time to consider how the question should be formulated.
38 I accept that the time to be allowed for initiating and conducting a plebiscite is very much a question of degree to be resolved in the light of the circumstances affecting an organisation and its members. Mindful of the caveat entered by Deane J in Municipal Officers Association v Lancaster (1981) 54 FLR 129 at 164 and quoted at [42] below, this Court would hesitate long before asserting categorically that a particular time frame is too long or too short. However, there are cases, of which this is one, in which the conclusion is inescapable that the potential time span between petition and completion of a plebiscite is so long as to be capable of rendering illusory the control purportedly given over a committee.
39 I have been compelled to that conclusion, in the present case, by the consideration that a maximum of 45 days notice to the COM of presentation of a petition is unnecessarily long and by the fact that the time for commencement of the ballot is to fixed within the extraordinarily long limit of 100 days by a Returning Officer, who is apparently to be appointed by the COM and may regard himself or herself as under its control except as the rules provide otherwise. The same Returning Officer has an unfettered discretion in fixing the closing date of the ballot provided that it remains open for at least 28 days. These matters have to be taken into account, in conjunction with the rest of the rules, including those empowering the COM to formulate the question for the plebiscite and imposing the 15% threshold for procuring its conduct in the first place. I have already indicated that the COM’s power to formulate the question, understood as subject to appropriate limitations, is not, of itself, fatal to the new rule 56. Mr Ginnane has properly conceded that the 15% threshold in the circumstances of the Association, cannot, without more, invalidate the rule. However, when these restrictions are assessed, together with the other features of the rule relevant to the time for the conduct of the plebiscite, rule 56 cannot be regarded as saving the rules as a whole from failing to make the provision required by s 195(1)(b)(iv) of the Act.
Conclusion
40 I accept that in evaluating the sufficiency of control over a committee given to the members, regard has to be had to the rules as a whole. As a Full Court of this Court (Evatt, Sheppard and Gray JJ) said, in Doyle v Australian Workers Union (1986) 12 FCR 197, at 200;
“The second way in which it was alleged that s 140(1)(a) was attracted was with respect to reg 115(1)(d)(v) of the Conciliation and Arbitration Regulations 1956 (Cth). This provision, in conjunction with others, requires that the rules of an organisation provide for “the control of committees ... by the members ...”. It was contended that a rule which operates to prevent some members from standing for an office which entitles its holder to sit on a committee, and which thereby deprives the members generally of the opportunity to vote for the disqualified candidate, operates to prevent the members from having control of that committee. As was shown in Boland v Munro (1980) 48 FLR 66 at 78-81 per Evatt and Northrop JJ, the question whether the rules of an organisaton provide for the control of committees is a complex one, to be determined only upon an examination of all of the provisions of those rules which deal with the election of committees, the making of their decisions, the existence of checks and restraints upon the actions of such committees, and rights to direct those actions. Again, it was not suggested that this Court could or should overrule Boland v Munro. The aspect of control of committees will rarely, if ever, be one which arises in the examination of a particular provision within the rules of an organisation. The question which is usually raised is whether the rules as a whole contain provisions which are adequate to satisfy the requirement of reg 115(1)(d)(v). If such a question is answered in the negative, it is not because any particular provision is in contravention of the regulation, but rather because the rules fail to contain sufficient positive provisions to satisfy it.”
41 Because I have been persuaded, as explained in [25] and [26] above, that the rules as a whole of the Association, considered without regard to the new rule 56, fail to make a provision required by the Act, namely one for control of the COM by the members, it follows that an order may be made under s 208 of the Act unless the new rule 56 has effectively remedied the failure. Although, as already indicated, the effectiveness of the new rule is not fatally diminished, by its reposing in the COM the power to formulate the question or questions for the plebiscite, I consider that the potential barriers it erectsto the timely completion of a plebiscite are such that it is not a sufficiently expedient mechanism for the control of the COM by the members to save the rules from offending against s 195(1)(b)(iv).
“The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organization is primarily a matter for the members (Watson v Australian Workers’ Union (1967) 10 FLR 347, at p 361; Cassidy v Amalgamated Postal Workers’ Union of Australia (1967) 11 FLR 124, at pp 126-127; Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 35 FLR 24; Re Airline Hostesses’ Association (1980) 48 FLR 214). This 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. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this Court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust.
... ... ... ... ...
The matter for decision is not, however, what would, in the view of the court, constitute the most desirable provisions to be contained in the rules of the organization. The matter for decision is whether the court is persuaded that the conditions, obligations or restrictions imposed by the actual rules of the organization upon applicants for membership or members are “oppressive, unreasonable or unjust” within the ordinary strong meaning of those words.”
43 In the present case, the question is not primarily whether the potential barriers to any effective invocation of the plebiscite rule are oppressive, unreasonable or unjust. It is rather whether they unacceptably dilute the control over the COM which the new rule 56 purports to give to the members. Because I have come to the clear view that they have that effect, there should be a declaration that the rules of the Association as a whole contravene s 196 of the Act by failing to provide for the control of the COM by the members of the Association. It will be for the Association to alter its rules as it sees fit to conform with s 196, which may be achieved, as indicated above, otherwise than by altering the new rule 56. If that action be not taken within three months of the date of this order, it will be necessary for the rules to be altered by the appropriate authority in accordance with s 208(6).
44 Since the declaration which I consider appropriate will not touch the validity of the former rule 56, there is no reason why the votes in the ballot purportedly conducted under that rule should not be counted. Accordingly, I shall further order that the respondent be released from its undertaking given to North J on 26 June 2000.
|
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 30 August 2001
|
Counsel for the Applicant: |
Mr T J Ginnane |
|
|
|
|
Solicitor for the Applicant: |
A J Macken and Co |
|
|
|
|
Counsel for the Respondent: |
Mr C Dowling |
|
|
|
|
Solicitor for the Respondent: |
Mr Jerome Willems (Ansett Pilots Association) |
|
|
|
|
Date of Hearing: |
21 and 22 August 2000 |
|
|
|
|
Date of Judgment: |
30 August 2001 |
