FEDERAL COURT OF AUSTRALIA

Johnston v Cameron [2002] FCA 634

INDUSTRIAL LAW – rule to show cause calling upon the first and second respondents to show cause why the Court should not order that resolution of National Council appointing delegates to the State Conference of the Australian Labor Party is null and void – whether National Council of organisation has power to appoint delegates to the State Conference under its general power to manage the organisation in a situation where State Council has not appointed its full complement of delegates – rule to show cause calling upon a number of the respondents to show cause why the Court should not order that they perform and observe the rules of the organisation by not attending the State Conference.

Workplace Relations Act 1996 (Cth) s 209

Williams v Hursey (1959) 103 CLR 30, cited

Imlach v Daley (1985) 7 FCR 457, cited

Bacon v O’Dea (1989) 25 FCR 495, cited

Short v Camillo [2000] FCA 504, referred to

Murphy v Eagleton (1987) 21 IR 419, cited

CRAIG JOHNSTON v DOUG CAMERON and OTHERS

V 279 OF 2000

MARSHALL J

MELBOURNE

16 MAY 2002

THE COURT ORDERS THAT:

1. The rule to show cause be discharged.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 13 May 2002 the Court made a rule to show cause in the following terms:

“1.       That the first and second respondents perform and observe the Rules of the Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (“the Union”) by

(i)                 Treating as null and void the resolution of the National Council of the Union carried on 10 May 2002 authorising them to choose the “Metal”, TSA and Food & Confectionery Division Delegates to the Victorian Branch of the ALP State Conference to be held on 18-19 May 2002 (“ALP State Conference”).

(ii)               Refraining from appointing any “Metal”, TSA and Food & Confectionery Division Delegates to the ALP State Conference.

(iii)             As soon as practicable and no later than 4.00 pm on 17 May, 2002, deliver personally or by facsimile transmission, written advice to the office of the Victoria Branch of the ALP at 350 King Street Melbourne that any “Metal”, TSA and Food & Confectionery Division Delegates appointed by the first and second respondents are not validly appointed in accordance with the rules of the Union.

2.                  That the second to thirty fourth respondents perform and observe the Rules of the Union by;

(i)                 refraining from representing to the ALP State Conference that they are delegates of the Union to the ALP State Conference.

(ii)               refraining from exercising any functions, rights or powers of delegates of the Union to the ALP State Conference including but not limited to voting on behalf of the Union at the ALP State Conference.

3.                  Such further or other Orders as to the Court deems appropriate.”

2                     The applicant’s claim for interlocutory relief (made in the same terms as his claim for final relief) and the directions hearing was listed for hearing at 10.15 am on 16 May 2002. Although the matter was listed for an interlocutory hearing, it was agreed by the parties who were represented before the Court that the matter should be approached as if it were an application for final relief. The reason for that approach was that the subject matter of the dispute required that the Court make an order effectively disposing of the proceeding prior to 18 May 2002.

The parties and the context

3                     The ALP State Conference will be held by the Victorian branch of the Australian Labor Party (“the ALP”) on the weekend of 18 and 19 May 2002. The State Conference of the ALP is constituted by delegates elected by branch members in various Federal Electoral Assemblies and also by delegates appointed by trade unions affiliated with the ALP. It also has amongst its delegates the parliamentary leadership of the Victorian branch of the ALP and two persons elected by and from the Victorian members of the Federal Labor Caucus.

4                     Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the organisation”) is an organisation of employees registered pursuant to the Workplace Relations Act 1996 (Cth) (“the Act”). The organisation is a trade union which is affiliated to the ALP in Victoria and elsewhere in the Commonwealth.

5                     The applicant, Mr Johnston, is the State Secretary of the Victorian Branch of the organisation. The second to the thirty-fourth respondents are members of the organisation who have been appointed by the first respondent to be delegates representing the organisation at the forthcoming ALP State Conference. The first respondent, Mr Cameron, is the National Secretary of the organisation. In addition to being a delegate to the ALP State Conference the second respondent, Mr Speight, is the President of the Victorian branch of the organisation. The thirty-fifth respondent and those named thereafter were added as respondents to the proceeding when the rule to show cause was amended this morning. Each of those respondents is a member of National Council.

6                     The Victorian branch of the organisation is an integral part of the organisation but it has no separate legal existence apart from the organisation; see Williams v Hursey (1959) 103 CLR 30, Imlach v Daley (1985) 7 FCR 457 at 462 (per Evatt and Northrop JJ) and Bacon v O’Dea (1989) 25 FCR 495 at 505-506.

7                     The organisation, in its current form, is the product of several amalgamations. As Mansfield J said in Short v Camillo [2000] FCA 504 at [16]:

“The organisation is an amalgam of five separate registered unions under the Conciliation and Arbitration Act 1904 (Cth) or the Industrial Relations Act 1988 (Cth).  As a consequence, the Rules recognise the fact of those amalgamations by creating divisions within the organisation which have some degree of independent existence.  Those divisions are the Vehicle Division, the Food and Confectionery Division, the Technical and Supervisory Division and the Printing Division.  Members within the relevant industry or calling are attached to those divisions.  Members who are engaged in the industry or calling applicable before any amalgamation occurred are attached to what is called informally the Metals Division, although that division is not recognised separately in the rules.”

8                     In recent times affiliation with the ALP and the appointment of delegates to ALP State Conference in Victoria has been conducted on the basis that each of the Vehicle, Printing and Metals Divisions arranges for separate representation at the ALP State Conference. The Metals Division representation has incorporated the Technical and Supervisory Division and the Food and Confectionery Division.

9                     On 22 and 23 April 2002, the State Conference of the Victorian branch of the organisation made three resolutions on the subject matter of the organisation’s affiliation to the ALP in Victoria. They were noted in the minutes of that meeting of the organisation’s State Conference as decisions 27, 28 and 29 respectively and were as follows:

“DECISION 27

AFFILIATION TO THE ALP(1)

State Conference notes that affiliation to the State ALP has been done in 3 parts

(a)               Vehicle Division

(b)               Printing Division

(c)               Metals division (Incorporating TSA & Food and Confectionery numbers)

As such Conference determines that each entity determines their own position.

DECISION 28

AFFILIATION TO THE ALP(2)

State Conference determines upon hearing the State Secretary’s report the Victorian Metals affiliation be stopped with a Special State conference to be called no later than December 2002. A committee to be set up to negotiate with the ALP. The Committee to be made up of Bro. Johnston, Nelson, Speight, plus representation from the TSA & Food and Confectionery Divisions if required. In the meantime no money will be paid in affiliation fees to the ALP. the State Council is to draw up a list of issues to be raised with the ALP in negotiations.

DECISION 29

AFFILIATION TO THE ALP(3)

The Union needs to urgently address its relationship with the Australian Labor Party, especially in light of the policy positions taken by the Federal Labor Opposition in areas such as industrial relations, refugees and privatisation.

While it would be regrettable for the Union to sever its long and proud association with the ALP, members of the Union are fed up with being taken for granted by a Party that lurches further towards the Right and appears incapable or afraid of promoting the progressive policies and ideas upon which it was founded.

The Union must send a clear and unequivocal message to the ALP that it is the Union’s intention to disaffiliate from the Party at its 2004 National Conference, unless:

(a)               significant and measurable changes are made to the Party’s policy direction, especially in key areas such as IR and economic policy; and

(b)               the leadership of the Party improves communication between itself and Unions such as the AMWU.”

10                  On 8 May 2002, the State Council of the Victorian branch of the organisation resolved as follows:

“The AMWU State Council determines that the ALP “Metals” Delegation (including Food and Confectionery and TSA) not attend and remove them from the May 2002 ALP State Conference delegation. Further that the Council views with concern that some Officers have been purported to be claiming we are financial and will be attending the Conference. State Council reminds all officials that State Council is the authoritative body and will determine our position.

Further that the Committee as envisaged by State Conference be set up and immediately approach the ALP to start negotiations on our concerns and problems with the ALP.

A report back to be given to a future State Council.”

11                  On 10 May 2002, the National Council of the organisation resolved as follows:

“1.       The AMWU delegation at the Victorian ALP State Conference to be held on 18-19 May 2002 will comprise of 50 delegates being the full entitlement of the AMWU under the Rules of the Victorian ALP in accordance with affiliation and sustenance fees paid by the AMWU.

2.                  Paying proper respect to the proportionality policies expressed in rule 22.2 and generally in the rules of the AMWU that the formula for representation shall be as follows:

·        “Metals”, TSA, Food & Confectionery    = 33

·        Vehicle Division                                        =  9

·        Printing Division                                       =  8

3.                  The “Metals”, TSA and Food & Confectionery Division delegates and proxy delegates shall be chosen by the National Secretary, Doug Cameron in consultation with the Victorian Branch President, Brother John Speight.

4.                  The members appointed by this process shall be the AMWU ALP Delegates for the purpose of the Victorian ALP Conference to be held on 18-19 May 2002 until further decision by National Council or National Conference.”

The Cameron letter

12                  By letter dated 10 May 2002, Mr Cameron wrote to Mr Andrews, the Acting State Secretary of the Victorian branch of the ALP in the following terms:

“I write to you in my capacity as Chief Executive and Administrative Officer of the AMWU.

In accordance with the rules of the AMWU, the National Council has authorised myself and Victorian State President, John Speight, to determine the AMWU Victorian Branch delegation to the ALP State Conference from the Union’s Metals, Food & Confectionery and Technical, Supervisory & Administrative Divisions to the ALP State Conference.

This process is consistent with the ALP Rule 6.3.4 as it relates to the appointment of delegates.

The Victorian State Council and the Food & Confectionery Division Regional Council have not taken steps to appoint delegates and this has necessitated the National Council to act to ensure the Union is represented and can promote the AMWU’s members’ views on key policy debates, the future of the Party and participate in ballots.

The following delegates are appointed and must be credentialed consistent with rule.

1.    Peter Spyker                                18.       Mike Nicolaides

2.    Helen Davis                                  19.       Anne Donnellan

3.    Zeljko Curak                                20.       Tanya Sokolowski

4.    John Speight                                21.       Frank Armenio

5.    Judith Klepner                             22.       Frank Argondizzo

6.    Julius Roe                                     23.       Mustafa Guney

7.    Maurice Addison                          24.       Jeff Maddern

8.    Steve Dodd                                   25.       Frank Edmonds

9.    Eddie Micallef                              26.       Alf Fernandz

10.  Terry Hancock                             27.       Antonios Lontos

11.  Dursun Guney                              28.       Harry Bartz

12.  Dave Oliver                                  29.       John Kranz

13.  Brien Smiddy                                30.       Mehmet Altun

14.  Kevin Davis                                 31.       Tony Anderson

15.  Sue Schlesinger                            32.       Tony Rossi

16.  Neil Robertson                             33.       Peter Heaphy

17.    Jim Dowsett

Yours sincerely

DOUG CAMERON

NATIONAL SECRETARY”

The Rules

13                  Pursuant to Rule 5 of the rules of the organisation (“the Rules”), “(t)he government of the Union shall be entrusted to a National Conference”. Rule 6.1 refers to the National Conference as “the supreme governing body of the union”. Its powers are therein referred to as including:

“(a)     To take all steps as it shall think fit to carry out all or any of the objects of the union …

(b)       To decide the general policy of the union and take steps to   enforce the carrying out of such policy.

…        ”

14                  Rule 3 sets out the general objects of the Union which include:

“The furthering of, or participation, financial or otherwise, directly or indirectly, in the work or purpose of any association or federal body having for its objects the furthering of the interests of Labour, Trade Unionism, or Trade Unionists.”

15                  Rule 7 provides for a National Council of the organisation. Rule 8 provides, inter alia, that:

“1.       Power & Authority

            The National Council shall be the Committee of Management of the Union and shall subject to the powers and decisions of the National Conference and these rules, have the care, control, superintendence, and management in all respects of the affairs, business, funds and property of the Union and without limiting the generality of the foregoing it may:

            …

(b)               Determine matters of policy not covered by Conference decisions.

(c)                Control and conduct the business and affairs of the Union while the National Conference is not in session.

….

2.                  Decisions of National Council

…

3.                  All acts and decisions of the National Council are binding on all members of the Union and shall have full force and validity unless and until such acts and decisions are reversed or amended by Conference.”

16                  Rule 21.1 provides, inter alia that:

“The objects of the Trade Union shall include the furtherance of political objects …

…

(c)    By payment of affiliation and sustentation fees to the Australian Labor Party.

…

(d)   By direct representation at A.L.P. Conferences.”

17                  Rule 22.2 is entitled “A.L.P. and Labor Councils”. It provides as follows:

“State Councils may from time to time appoint and remove delegates to representative bodies to which the Union is affiliated in the manner decided by the appropriate State Council. Such delegateship is not an office and such delegates shall not thereby become Officers of the Union. Provided always that there shall be proportional representation of delegates representing the Divisions to any such representative body and, subject to the requirements of the rules of that body, the delegates shall be drawn from financial members of the Union in the Technical and Supervisory Division, the Vehicle Division, the Food and Confectionery Division and the Printing Division in the state in such manner as may be decided –

(a)               in the case of the Technical and Supervisory Division – by the State Council;

(b)               in the case of the Vehicle Division – by the Regional Council;

(c)               in the case of the Food and Confectionery Division – by the Regional Council; and

(d)               in the case of the Printing Division – by the Regional Council.”

18                  Rule 23 provides for a State Conference. Its powers are set out in Rule 24. Rule 24.2 is headed “Authority” and provides that:

“Subject to the powers and authority of the National Conference and National Council, State Conference shall exercise the following powers:

(a)               To make all necessary decisions to strengthen the Union and advance the interests of its members within the State.

(b)               To take all steps within the State necessary to achieve any and all of the objects of the Union.

…”

19                  Rule 25 provides for a State Council. Its powers are set out in Rule 26. Rule 26.2 provides that:

“The State Council shall generally serve the purpose of an executive body of the State Conference in the State concerned and may convene any Special State Conference of the Union considered necessary or desirable, the agenda for which shall be determined by the State Council and limited to those matters notified in accordance with the principles of Rule 12.

It shall, subject to the powers of the State Conference, National Conference and the National Council generally direct the work of the Union in the State, carry out particular responsibilities allocated to it under these rules and take all steps necessary and in accordance with these rules to strengthen the Union and further the interests of the members.”

ALP State Conference

20                  The Victorian ALP’s State Conference is held in May and October of each year. The May 2002 meeting is to be held on 18 and 19 May 2002. The State Conference is “the supreme policy-making and governing body” of the ALP Victorian branch; see rule 6.2.1 of the rules of the ALP Victorian branch.

21                  Pursuant to rule 6.3.4 of the ALP Victorian branch, “Union delegates shall be appointed by affiliated unions in accordance with procedures determined from time to time by such organisations …”.

22                  Representation is determined in accordance with a formula based on the level of affiliation fees paid by a trade union.

23                  It appears that the ALP Victorian branch has accepted as delegates from the organisation the persons named in “the Cameron letter” of 10 May 2002. Mr Johnston wishes to restrain the attendance by those persons at the May Conference and to prevent the exercise by them of voting power at, or in connection with, the 18-19 May 2002 meeting.

The competing contentions – power of National Council to make the impugned resolution

24                  Mr Friend, of counsel, appeared for Mr Johnston. He contended that it was the role of State Council to appoint delegates to ALP State Conference. He called in aid Rule 22.2 of the Rules. It was submitted that there is no requirement for State Council to appoint delegates but that if appointments are to be made, they must be made by State Council. It was contended that the general management powers contained in Rule 8 are expressed to be subject to the Rules, including Rule 22.2.

25                  Mr Pearce, of counsel, appeared for most of the respondents. He submitted that the National Council had the power to appoint the delegates under Rule 8.1 of the Rules. He contended that powers available under Rule 8.1 were not confined by Rule 22.2 in circumstances where the State Council:

·        has not appointed delegates under Rule 22.2;

·        is expending funds in a manner not permitted by Rule 21; and

·        has sent a “rump” delegation contrary to the concept of proportionality described in Rule 22.2

Consideration – power of National Council to make the impugned resolution

26                  Rule 22.2 gives the State Council the power to appoint delegates to ALP State Conference. If the State Council does not exercise that power in respect of any particular ALP State Conference meeting, a question arises whether the National Council may fill the void and appoint delegates to ALP State Conference.

27                  National Council has wide and general powers to manage the affairs of the organisation. Those powers are referred to in Rule 8.1 which is set out at [15] above. In between meetings of National Conference, National Council controls and conducts the affairs of the organisation. National Conference is empowered by Rule 6.1(a) to carry out the objects of the organisation. National Council has that power between meetings of National Conference. Those objects include the object of participating in bodies such as the ALP, by way of affiliation; see Rule 3 and Rule 21.1(c).

28                  State Council’s powers are expressly subject to the powers of National Council as referred to in Rule 26 which is set out at [19] above. A decision made by State Council not to appoint the full complement of the delegates which the organisation is entitled to appoint as delegates to ALP State Conference is therefore a decision which is capable of being overridden by a National Council decision that such delegates be appointed.

29                  State Council is given specific power in Rule 22.2 to appoint delegates to bodies such as the ALP. However, there is nothing in the Rules to prevent National Council from making such appointments under its general powers to manage the organisation in the event that the State Council fails or decides not to make such appointments. Although the powers of National Council are expressed to be “subject to the rules”, Rule 22.2 does not expressly make State Council the only repository of the power to make appointments.

30                  State Council is not compelled to make such appointments but when it does, the specific provision contained in Rule 22.2 suggests that its decision as to choice of delegates cannot be overridden by a contrary decision made by National Council concerning the identity of the delegates. In circumstances where the State Council has opted not to appoint delegates (either up to the organisation’s full entitlement or otherwise), nothing in the Rules prevents the National Council from filling the void. Any decision by State Council not to appoint the organisation’s full complement of delegates must give way to any contrary decision by National Council.

31                  For the foregoing reasons I consider that paragraph 1 of the rule to show cause should be discharged.

The subsidiary issue

32                  I now deal with what counsel described as the “subsidiary issue”. Mr Friend submitted that the evidence disclosed that some of the respondents should not have been appointed as delegates to the ALP State Conference because they are not members of the organisation who are attached to the Metals, Technical and Supervisory or Food and Confectionery Divisions. He relied on the evidence of his instructing solicitor, Mr Mark Bland, that the 16^th, 23^rd, 24^th, 28^th, 29^th, 31^st, 32^nd, 33^rd and 34^th respondents are members of the organisation attached to the Vehicle Division and that the 14^th, 15^th and 27^th respondents are members of the organisation attached to the Printing Division.

33                  Paragraph 2 of the rule to show cause seeks that the 2^nd to 34^th respondents inclusive perform and observe the Rules effectively by not representing the organisation at the May ALP State Conference.

34                  Given that the Court has found the 10 May resolution of National Council is valid (if the Court is in agreement with the submissions of Mr Friend on this issue), paragraph 2 of the rule to show cause can only be made absolute in respect of the respondents referred to in the affidavit of Mr Bland who are members of the organisation.

35                  Mr Pearce conceded that the 12^th and 21^st respondents are not members of the organisation. They are not under any obligation to perform and observe the Rules. In any event, Mr Pearce informed the Court that their authority to represent the organisation at the ALP State Conference will be withdrawn by Mr Cameron. The Court need not make any order with respect to those persons.

36                  An issue arises concerning whether the 14^th, 15^th, 16^th, 23^rd, 24^th, 27^th, 28^th, 29^th, 31^st, 32^nd, 33^rd and 34^th respondents should be the subject of a final order requiring them effectively to not attend the ALP State Conference.

37                  Mr Pearce submitted that the paragraph 2 of the rule to show cause seeks compliance with the National Council resolution, specifically that part that refers to proportionality, rather than compliance with any duty to perform and observe the Rules. He referred to Short v Camillo at [32] where Mansfield J referred to a similar selection process undertaken by Mr Cameron and the South Australian State Secretary, Mr Camillo as “a function in accordance with (a) resolution, rather than a function under the Rules”.

38                  At [35] in Short v Camillo, Mansfield J said that:

“If there has been any non-compliance with the National Council resolution … that is not a failure to comply with Rule 22. It would be a failure to comply with the National Council resolution. I do not consider that Rule 22 itself imposes obligations upon Mr Cameron or Mr Camillo”.

See also Murphy v Eagleton (1987) 21 IR 419 at 428, per Gray J.

39                  I agree, with respect, with the view of Mansfield J that a National Council resolution which is designed to achieve proportionality of representation within the organisation is not one which is made pursuant to Rule 22. But that is not the end of the matter. It would have been open to Mr Johnston to seek a rule to show cause requiring that Mr Cameron, and perhaps Mr Speight, perform and observe the Rules by complying with the resolution of the National Council of 10 May 2002 and in particular that part of it that ensures proportionality of representation. That has not been done. Mr Johnston, through his counsel, presented his case in the context of an attack upon the validity of that resolution. The second paragraph of the rule to show cause, assuming the first to have been discharged, effectively seeks that the respondents referred to in [36] perform and observe the Rules by not attending the ALP State Conference. The 10 May resolution of National Council does not place any duties or obligations upon them. It places duties and obligations upon Mr Cameron and arguably Mr Speight subject to its terms.

40                  It may be open to a member of the organisation to compel compliance with the National Council resolution in the event it has not been complied with, given that the Rules do not authorise action taken in breach of that resolution.

41                  It is unnecessary for the Court to deal definitively with the issue whether Mr Cameron and Mr Speight have acted in breach of the National Council resolution. That issue is not within the ambit of the rule to show cause. It is sufficient to say that the impugned delegates are not themselves in breach of any requirement to perform and observe the Rules or to comply with the resolution of the National Council by virtue of having been appointed as delegates.

Order

42                  In the circumstances having regard to the foregoing it is appropriate to order that the rule to show cause be discharged.

Associate:

Dated:              17 May 2002