FEDERAL COURT OF AUSTRALIA

Barry v Owens & Ors [2004] FCA 322

INDUSTRIAL LAW – application for declaratory and injunctive relief based on clause 164 of Schedule 1B of Industrial Relations Act 1988 (Cth) – union constituted by amalgamation of two former unions – divisions of unions reflecting those former unions – office of President absent – whether Vice-President entitled under rules to exercise powers of President – discretion in granting relief in industrial law disputes – distinction between ‘vacancy’ in and ‘absence’ from employment – relief refused

Workplace Relation Act 1996 (Cth) clauses 5, 164, 338 of Schedule 1B

Conciliation and Arbitration Act 1904 (Cth) s 141

Industrial Relations Act 1988 (Cth) s 209(3)

Federal Court of Australia Act 1976 (Cth) s 21

Local Government Act 1919 (NSW)

Magner v Fowler (1979) 46 FLR 78

Cook v Crawford (1982) 62 FLR 34

Troja v Curran (1989) 30 IR 129

Quickenden v Federated Australian University Staff Association (1988) 25 IR 440

The Queen v Joske; ex parte shop Distributive and Allied Employees’ Association (1976) 135 CLR 194

Adlam v Noack (1998) 90 IR 31

McGee v Sanders (No 2) (1999) 39 IR 400

Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27

Ryan v Heiler (1990) 69 LGRA 307

Wiest v Director of Public Prosecutions (1988) 23 FCR 472

JOHN BARRY v ANNIE OWENS, TREVOR DE COSTA, SONIA MINUTILLO, MARK BOYD, JOHN MORRIS, JOHN HAWKER, PETER JAMES, PAULINE FOOT, ANTHONY SHEDDEN, KEVAN LLOYD, SHARYN KABELKA, SHIRLEY BENNETT, LIDIA AREOSO, KENNETH CAINES, BRYCE GRAINGER, SUE McSULLEA, MARGARET BRADY, SYLVIA CULLEN, GEORGE FONG, MARGARET SCOTT AND KATHLEEN HADDEN

N 331 OF 2004

CONTI J

24 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.         Application dismissed.

2.         Liberty to either party to apply on 24 hours notice.

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

REASONS FOR JUDGMENT

The parties involved directly or indirectly in the subject proceedings

1                     The Liquor, Hospitality and Miscellaneous Workers’ Union (‘the Union’) is an organisation of employees registered under the Workplace Relation Act 1996 (Cth) (‘the Act’), and is structured into State branches, the New South Wales Branch (‘the NSW Branch’) being one of those branches.  The NSW Branch is organised into divisions, being four in number, one of which is the Liquor and Hospitality Division (‘the L&H Division’).  The other Divisions are Leisure and Tourism, Manufacturing, and Community and Property Services (see Rule 75B N 10 of the Rules of the NSW Branch of the Union).  Those Divisions have responsibility for the respective industrial matters of their Division in accordance with the overall Union policy, and only those specific powers and functions conferred upon the Divisions shall be exercised by the Divisions without the approval of the NSW Branch (see N 12(a) of Rule 75B).  The structural complexity of the Union has its origin in the amalgamation of the Federated Liquor and Allied Industries Employees Union (‘FLAIEU’) and the Federated Miscellaneous Workers Union (‘FMWU’). 

2                     The applicant is a member of the Union, and also the Secretary of the L&H Division, and as such is a member of the Executive of the NSW Branch.  The respondents comprise the other members of the Executive of the NSW Branch, which pursuant to Rule 75B N 5, are made up of the following office bearers:

(i)         a Branch President elected by the entire branch membership;

(ii)        an Executive Vice President elected by the membership other than the members of the L&H Division;

(iii)       the Branch Secretary who is elected by the entire Branch membership;

(iv)       three Assistant Secretaries, two of whom are elected concurrently as either the Secretary or Assistant Secretary of the L&H Division, and one of whom is elected by the membership other than members of the L&H Division;

(v)        fifteen honorary rank and file Executive members from the four Divisions, including five from the L&H Division; and

(vi)       an honorary Executive Vice President who is elected concurrently as the President of the L&H Division.

3                     The positions of Executive Vice President and President of the L&H Division are currently held by Mr John Morris, the fifth respondent herein.  He is the prominent personality whose aspiration to become Branch President is effectively at the heart of the present dispute. 

4                     The L&H Division in turn holds eight out of the twenty-two positions on the NSW Branch Executive.  The persons holding those twenty-two positions comprise the applicant and the twenty-one respondents.  The remaining Divisions hold the fourteen positions on the NSW Branch Executive not held by members of the L&H Division.

The circumstances giving rise to the present dispute

5                     The second respondent Mr De Costa currently occupies the contentious office of President of the NSW Branch.  He has been absent from physical attendance at work for sometime, by reason of serious heart illness sustained in mid 2003.  During this absence on sick leave, Mr De Costa has been receiving so-called salary continuance insurance payments, and has undertaken occasional duties of his office from time to time.  Ultimately at a meeting of the NSW Branch Executive held on 9 March 2004, Mr De Costa announced his intention to resign from the position of NSW Branch President effectively from 6 April 2004.  What he thereby did give was effectively one month’s notice of resignation.  That resignation seems to have crystallised the present disputes or differences giving rise to the proceedings, presumably by reason of competing prospective candidatures for his shortly to be vacated office. 

6                     During Mr De Costa’s prior absences due to illness, Mr Morris has been acting in the position of NSW Branch President, in that he has at least chaired meetings as acting Branch President of the NSW Branch Executive.  However at the Branch Executive meeting last held on 10 February 2004 (Mr De Costa, being absent therefrom due to his ongoing illness), Mr Morris unsuccessfully attempted to chair the meeting.  In the principal affidavit filed in support of the present application, being that made by the applicant John Barry sworn on 10 March 2004, being effectively a supporter of Mr Morris, the following events were said by Mr Barry to have occurred:

‘16.      The First Respondent, Annie Owens, Branch Secretary, gave a report stating that some members of the Division had challenged the rule changes passed at National Council and subsequently certified by the Industrial Registrar of the Australia Industrial Relations Commission.  I explained why the challenge had been made and asked that my comments be noted in the minutes.  The Fourth Respondent, Mark Boyd, said “We won’t be noting anything”.  At this point, in response, I moved a resolution which was to the following effect:

                     That the Branch Executive note the actions taken by the L&H Divisional Committee of Management in appealing the decision of Registrar Jenkins has been made following assurances given by the National Secretary, Jeff Lawrence and Branch Secretary, Annie Owens, that the rule changes would not affect the autonomy of the L&H Division and legal advice received by the L&H Division shows 15 of the changes do so affect the autonomy of the L&H Division as contained within rule 75B N rules of the Union.

17.       The Seventh Respondent, Peter James, Executive member of the Committee of Management of the Division and the Branch Executive, seconded the resolution and spoke in favour.  Ms Owens then spoke against it.

18.       Mr Morris then started to make a statement, but was interrupted by either Mr Boyd or Ms Owens who said to Mr Morris words to the effect of “You cannot speak unless you leave the chair”.  Mr Morris said to the Third Respondent, Sonia Minutillo, words to the effect of “You take the chair.”  Mr Morris was again interrupted by either Mr Boyd or Ms Owens who said words to the effect of “A resolution is needed before you can vacate the chair.”  In my view, this was contrary to rule 45.  Notwithstanding that, Mr James and I moved to the effect that “Sonia Minutillo take the chair to allow Mr Morris to make a statement”, but Mr Boyd opposed the resolution.  Mr Morris asked “Can the procedural resolution be withdrawn so that I can speak” and so Mr James and I withdrew it.

19.       Ms Minutillo took the Chair and Mr Morris then spoke in favour of my resolution.  Ultimately, the resolution was lost.  Mr James and I then moved that Mr Morris resume the chair, which was carried.’

7                     Rule 43 of the Rules of the Union (that is for each State Branch generally) stipulates that ordinary meetings of a Branch of the Union ‘… shall be held at least once in each quarter’, and that ‘[u]nless otherwise decided by the Branch, each Branch shall hold periodic meetings on the last Tuesday in each of the months of November, February and May…’, and further that special meetings of the Branch shall be held as follows:

‘(i)       When decided by the Branch Council, the Branch Executive, any meeting of the Branch or the Branch Secretary;

(ii)       Upon a requisition signed by not less than 200 members of the Branch or, if there are less than 5000 members of the Branch, upon requisition signed by 50 members of the Branch.’

8                     Mr Barry’s affidavit continued thereafter its description of the happenings of the Branch Executive meeting held on 10 February 2004, already partly foreshadowed, as follows:

’21.      Shortly thereafter, Mr Morris asked in words to the effect of “How is Mr De Costa’s health?”  Annie Owens replied “He is still sick”.  Mr Morris responded by stating words to the effect of “If he is still sick, I should be able to carry out Trevor’s duties in his absence.”  Mr Morris then said to Ms Owens “Will you please read out the relevant rules?”.  Ms Owens said “No.”  Mr James and I then moved a resolution to the following effect:

                        “That the Secretary read out those rules governing the duties of the Executive Vice President/President Liquor & Hospitality Division.”

22.       That resolution was carried.  However, Ms Owens only read out part of the rule.  She did not read out that part stating that the Executive Vice President could act in the position of the President in Mr De Costa’s absence.  She said words to the effect: “I’m not going to trawl through the rules”.

23.       I then moved a resolution that: “the Acting President be provided with all the facilities of the Branch President while he is absent in accordance with the Rules”.  The resolution was lost, the majority of the Respondents voting against the motion.

24.       After the meeting ended, Mr Morris asked Ms Owens: “When can I see my office?”

25.             Ms Owens replied “Don’t worry about it John, it will never happen”.

26.             Mr Boyd said “John we have just the office for you, it’s an office on “B2” with your initials on it.”  “B2” is the car park level.’

9                     Following the above meeting of 10 February 2004, in purported exercise of authority as a member of the Union, Mr Barry instructed Harmers Workplace Lawyers to write to the first respondent Ms Owens, in her capacity as Secretary of the NSW Branch of the Union, and demand that she comply with the requirements of N8(i) of Rule 75B of the NSW Branch of the Union, which provides as follows:

‘Where the New South Wales Branch President is absent, the Executive Vice President/President, Liquor & Hospitality Division shall act in that position.’

Other contents of that letter included the following:

‘We are instructed that Mr Trevor De Costa, the President of the NSW Branch, is currently on sick leave, being so seriously ill that he is being paid salary continuance insurance.  In those circumstances Mr De Costa is clearly not present nor working in his position in any real sense.  He is therefore “absent”, in the sense used in Rule 75B N8.

In those circumstances, Rule 75B N8(i) requires our client to act in the position of Present of the NSW Branch.

…’

After referring to the outcome of the meeting of the NSW Branch Executive held on 10 February 2004, the letter continued as follows:

‘…

The position of President, which we understand is a paid position within the Union structure, is given a number of functions under the Rules, both under the general Rules (for example, Rule 45), as well as under the special Rules (for example, Rule 75B N8 as a whole).

Our client requires the Branch to comply with Rule 75B N8(i).  This requires the Branch to recognise that whilst the President continues to be absent, our client is Acting President of the Branch, with all its responsibilities, rights, duties and privileges.  The branch should afford all assistance to our client in carrying out the role of Acting President as it would normally afford to the President when he is present.  It is not sufficient compliance with Rule 75B for our client to be asked to chair the occasional meeting.

In relation to chairing meetings, we are further instructed that at the meeting of Branch executive on 10 February 2004 referred to above, certain procedural steps were required of our client, which were also not in accordance with the rules.  We note that Rule 45 deals in part, with the procedure when the Present wishes to speak to a motion.  The Rule relevantly provided:

            … Should the Branch President wish to speak on any question other than a point of order, the Branch Present shall leave the chair and call upon a Vice President to take charge of the meeting whilst speaking, and shall immediately resume the chair when finished speaking. …

We are instructed that at the meeting concerned, our client was not permitted to leave the chair to speak without a resolution to that effect being moved, and similarly was not allowed to resume the chair without a motion to that effect, and then only on the debate being finalised, rather than (as required by the Rule) immediately upon finishing speaking.

We also are instructed that there were other irregularities at that meeting, including a refusal by you to read out the relevant part of Rule 75B N8, contrary to a resolution of the meeting.  You also refused to note comments made at the meeting, contrary to normal practice.

The purpose of this letter is therefore to (i) seek your assistance that our client will be allowed to take up the position of Acting President forthwith, as required by the Rules, and will be provided with necessary facilities, will not be hindered in carrying out the duties of President, and will be given all rights of office, and (ii) to seek your assurance that you will act to ensure that any further breaches of the Rules and irregularities at meetings of Branch Executive cease immediately.

To this end, we require your response by Tuesday 24 February 2004, failing which our client will, regrettably, be forced to consider such legal action as he sees fit to protect his interests and that of the Union, in ensuring compliance with the Rules.’

10                  The initial letter of response dated 24 February 2004 of Ms Owens, writing in her capacity as Branch Secretary, included the following:

‘…

Your letter raises potentially significant issues as to the proper construction of rules 45 and 75B.  A related important issue is the extent – if at all – Mr Morris could expect to be placed in a full time paid position, even on a temporary basis after having received a substantial redundancy payment on condition that he would not return to employment with the Union.  The agreement within the LHMU to allow the payment of this substantial redundancy payment was not taken without some controversy.

…’

Subsequently Ms Owens wrote again on 27 February 2004 to Harmers Workplace Lawyers as follows (omitting formal parts):

‘…

The only relevant duty, function or role which as Branch President, Mr De Costa would ordinarily be required to discharge in his capacity as Branch President in the foreseeable future are those set out in rule 45.

There is presently no difficulty in dealing with such administrative tasks as are necessary for the conduct of the affairs of the branch.

Should Mr De Costa be unavailable to preside at the next Branch Executive meeting on March 9^th, it is expected that Mr Morris if he is available will take the chair.  I point out that Mr Morris chaired the last meeting of the Branch Executive in such circumstances.

…’

11                  Harmers Workplace Lawyers responded on Mr Barry’s behalf to Ms Owens by letter dated 4 March 2004, asserting inter alia the following:

‘…

We therefore find it somewhat extraordinary for you, as branch Secretary, to merely state that there is “presently no difficulty” in dealing with the administrative tasks of the Branch.  We view your letter as an admission that the Branch has acted, and intends to continue to act, in the absence of the President, and without our client as acting President, as required by Rule 75BN8(i).

We also find your reference to Rule 45 alone as the source of the rights and duties of the President to be misleading.  Rule 45 deals with but one of the functions of the President of the New South Wales Branch.  Your attention is drawn to Rule 75BN8 as a whole, which gives the President a number of “powers and duties”.  These include undertaking negotiations with employers, preparing reports, consulting and informing Divisional and Branch Officials and employees of industrial activity and policies, reviewing representation before Industrial Tribunals (and where necessary appearing before those Tribunals), executing documents acting as spokesperson to the media, and negotiating Awards and Agreements.  Many of the duties require consultation between you as Branch Secretary and our client.  This clearly has not been happening.’

An outline of the subsequent matters underpinning the disputes the subject of the present proceedings

12                  The applicant is a member of the Union, and also the Secretary of the L&H Division and a member of the NSW Branch Executive; prior to the union amalgamation, he was a member of the FLAIEU.  The respondents are all other members of the NSW Branch Executive.  The first three of the respondents (Ms Owens, Ms Minutillo and Mr Boyd), and also the thirteenth to the twentieth respondents, are represented by Mr Kenzie QC, whilst the fifth to eleventh respondents (which include Mr Morris) are represented by Mr Walsh, who is supporting the applicant represented by Mr Dixon SC.  The applicant deposed to the following circumstances (inter alia) being circumstances additional to what I have already recorded:

(i)         he is a member of the Committee of Management of the L&H Division of the NSW Branch of the Union;

(ii)        he is also a member of the Branch Executive of the NSW Branch of the Union;

(iii)       the L&H Division holds eight out of the twenty-two positions on the NSW Branch Executive;

(iv)       the position of the President of the NSW Branch Executive (presently of course Mr De Costa) is remunerated on a full-time basis;

(v)        the powers and duties of the President of the NSW Branch, as set out in sub-rule N8 of Rule 75B, apart from the critical par (i) of sub-rule N8 already extracted in [9] above, also include the following contained in pars (a) to (h) and (j) set out below:

         ‘(a)      In consultation with the Branch Secretary undertake negotiations with employers and take such actions as are necessary to advance the interests of members.

         (b)       Have responsibility for particular industries, issues, divisions and sections, subject to these rules as decided by the Branch Council and /or Executive.

         (c)        Prepare and present reports as appropriate to the Branch Council, Branch Executive and meetings of branch members.

         (d)       In conjunction with the Branch Secretary, regularly consult with all Divisional and Branch Officials and employees for the purpose of keeping them informed of Branch industrial activity and policies.

         (e)        In conjunction with the Branch Secretary, review the representation of the Branch before industrial tribunals, particularly the NSW Industrial Relations Commission, to keep informed of the progress of matters before the tribunal and where necessary, appear to represent members best interests.

         (f)        Together with the Branch Secretary, execute any document required to be executed on behalf of the Branch.

         (g)       In consultation with the Branch Secretary, act as spokesperson to the media on matters affecting the Branch and its members.

         (h)       Subject to rule N12, together with the Branch Secretary have overriding responsibility for negotiations in all major awards and agreements in conjunction with the relevant divisional officers.

         …

         (j)        The New South Wales Branch President may delegate any of her/his powers and duties to another member of the Branch.’

and

(vi)       those duties of the President were not merely so-called administrative tasks, as asserted by Ms Owens in her above letter of 27 February 2004, which could be dealt with as though they were mere clerical duties, but constituted duties to be carried out by the Acting President in accordance with the Rules; the following were exemplified:

‘…Negotiations with employees can arise at any time, and are essentially ongoing.  For example, there is a campaign in relation to government cleaning, involving meetings with various government representatives, including the relevant minister, Mr Della Bosca, over issues such as long service leave and sick leave portability.’

13                  Other examples of the scope of the Union’s responsibilities particularised by Mr Barry related to the issues arising in the context of the security industry, of the higher educational sector, in relation to child care and home care and in the bread manufacturing, security, cleaning and manufacturing industries.  Those responsibilities involved matters appertaining to occupational health and safety, responsibilities extending to consultations, changes in policy, representation in industrial tribunal matters and disputes, property management, award negotiations, meetings with organisers and involvement generally in litigation bearing directing and indirectly on the interests of the Union and its members.

14                  Apart from emphasis upon the scope of the abovementioned Rule 75B sub-rule N8 of the NSW Branch Rules, to part of which reference has of course already been made, the office of the NSW Branch President involves the exercise of the following powers stipulated in Rule 45 of the NSW Branch Rules:

‘The Branch President shall preside at all meetings of the Branch.  The Branch Present shall preserve order and give an impartial decision on all questions submitted to the Branch President.  The Branch President shall have a deliberative vote only, and in the event of any equality of votes, the proposal shall lapse except in the case of a motion of dissent from the chair in which case the President’s ruling shall be upheld.  Should the Branch President wish to speak on any question other than a point of order, the Branch President shall leave the chair and call upon a Vice President to take charge of the meeting whilst speaking, and shall immediately resume their chair when finished speaking.  The Branch President shall have power to fine any member who persists in disorderly conduct up to and not exceeding the sum of $50,00 for such offence.  A member so fined shall have the right to appeal to the next meeting of Branch Council.  The Branch President shall also have power to order the removal from the meeting room of any member who persists in disorderly conduct or to call a police officer and have such member removed.’

15                  Mr Barry was not cross-examined on his affidavits, and no challenge was made to his locus standi as applicant in the present proceedings. 

16                  The first respondent Ms Owens, in her capacity as Secretary of the NSW Branch of the Union (to be distinguished of course from the office of the applicant in relation to the L&H Division of the NSW Branch) provided the Court with two affidavits, respectively sworn on 16 and 18 March 2004.  Ms Owens was also not cross-examined on those affidavits or at all.

17                  In her first affidavit, Ms Owens draw attention to Rule 42 headed ‘Casual Vacancies – Branch Appointment’, and in particular par (c) thereof reading as follows:

‘Where, pending the filling of a vacancy in the office of President, Vice President, Secretary or Assistant Secretary, or while the holder of one of the above offices in the branch is absent or incapacitated, it is necessary for the proper conduct of business that some person perform the duties of such office the Branch Executive may appoint one of its members or an officer of the Union or member of the Branch or official of the Union to act in any one of the above positions.’

18                  Thereafter Ms Owens gave evidence as to the following events and circumstances having occurred since Mr De Costa suffered a heart attack in late June 2003:

(i)         apart from attending the Union’s National Council meeting in Hobart conducted from 8 to 11 September 2003, Mr De Costa had been unable to attend at the Union offices;

(ii)        he had however continued to undertake the task of signing cheques on behalf of the Branch ‘where required’, and ‘had remained in contact with me in relation to the affairs of the Union’; moreover ‘[u]ntil recently Mr De Costa was intending to return to the office when his health permitted it’, and ‘[t]here was no reason to believe that Mr De Costa… would not be in position to sign any document…’;

(iii)       to the best of her knowledge, there has never been a decision of the Branch Council or Executive designating particular industrial issues, divisions or sections as the responsibility of the Branch President; it is usual practice of the NSW Branch for the duties normally undertaken by the President to be also undertaken by the Executive Vice President and the Branch Assistant Secretary;

(iv)       since June 2003, those duties, including negotiations with employees, have been carried out by the Branch Secretary and other full time executive officers located in the Thomas Street Haymarket offices of the NSW Branch of the Union; that was said to be in accordance with what had been the common practice of the NSW Branch in recent years when that Branch had not found it necessary for the proper conduct of the business of the Branch to appoint any particular person to carry out the duties of any executive officer who had been absent for some reason; in recent years, she continued, ‘it has only been when the Branch Secretary has been absent that the Branch Executive has found it necessary to appoint one of its members to act in their stead and in these circumstances the position of the person has not been replaced’;

(v)        during the period that Mr De Costa had been ill, NSW Branch Executive meetings have been chaired by Mr Morris whenever he was in attendance at the meeting; Mr Morris chaired meetings of the NSW Branch Executive in August, September (two meetings) and November 2003, as well as Executive meetings held in February and March 2004; Mr Morris had also chaired meetings of the Branch Council in August 2003 and February 2004, and when Mr Morris was absent from the July, October and December 2003 meetings, the same were chaired by the third respondent Sonia Minutillo, a full time Executive Vice Chairman of the Union;

(vi)       at the controversial meeting of the NSW Branch Executive held on 10 February 2004 (see [6] above), it was moved by Mr Barry (being the applicant in these proceedings) and duly seconded, as follows:

            ‘that the Acting President, John Morris, be afforded all facilities of the President, Trevor De Costa during his absence on sick leave as per the Rules’.

            After Ms Owens had spoken against that motion, the same was recorded as lost (Ms Owens asserted in her affidavit in that regard that ‘[a]s the Minutes reveal Mr Barry has misdescribed the order of events in relation to the moving of the resolutions in question’); and

(vii)      whilst agreeing with par 21 of Mr Barry’s affidavit extracted in [8] above, she added that Mr Morris had also said to the meeting words to the effect ‘I want the salary, the car, the phone and the office’; in any event Mr Barry’s motion was lost 14 votes to 8, Ms Owens having first stated to the meeting that it was entirely unnecessary for the workings of the NSW Branch that Mr Morris be afforded all such facilities.

19                  Later in her first affidavit, Ms Owens sought to describe the nature of the relationship between the L&H Division of the Union and the New South Wales Branch of the Union (earlier abbreviated herein as the ‘Division’ and the ‘NSW Branch’), following upon the amalgamation of the FMWU and the FLAIEU.  The administration of some of the industries previously within the province of the FLAIEU has continued to remain the exclusive concern of the L&H Division in New South Wales, while the NSW Branch as a whole has continued to administer the wide range of industries and callings traditionally administered by the FMWU with the addition of some manufacturing industries, accommodation hotels and the Casino in Sydney.  Thus whilst in branches other than New South Wales, so Ms Owens affidavit testimony continued, operations are presently integrated on a day to day basis, in New South Wales a memorandum of agreement was reached in 1997 between the Miscellaneous Workers Division of the New South Wales Branch and officers of the L&H Division, which provided that the L&H Division would become part of a single Branch, while retaining nevertheless significant specified powers at Divisional level.

20                  It was in that context that Ms Owens’ affidavit testimony continued to the effect that tensions had been existing between the L&H Division and the NSW Branch in relation to the L&H Division’s perception that the NSW Branch was threatening its autonomy; notwithstanding that the 1997 memorandum of agreement envisaged cooperation on issues such as cross-divisional servicing, particularly in regional areas, the rationalisation of office accommodation and cooperation on advocacy and research.  However she said that attempts to discuss or put in place these aspects of the agreement have been interpreted within the Division as an attack on their autonomy, and three recent examples were proffered.  Ms Owens also referred to Mr Barry’s acknowledgement of those tensions in written evidence recently provided by him in the Australian Industrial Relations Commission.  It would appear that those tensions have not been assisted by the circumstance that the NSW Branch offices have been located in Thomas Street Haymarket, whereas the L&H Division’s offices have been located at Parramatta.

21                  The further principal affidavit evidence of Ms Owens was that Mr Morris, by reason of his day to day involvement with the L&H Division, has no involvement on a day to day basis with the administration of the NSW Branch or involvement with employers operating in industries of concern to the NSW Branch, other than those industries relevant to the L&H Division, and that he had been an honorary official since he accepted a substantial redundancy payment.  Ms Owens further said that ‘a timetable has been put in place to fill the vacancy’, and that the vacancy would be filled at a meeting of the NSW Branch Council on 6 April 2004.  She did not however detail that timetable, though as I have earlier mentioned, neither she nor Mr Barry was cross-examined on their respective affidavit testimonies.

22                  Ms Owens concluded her principal affidavit generally with what could be described as largely a submission, as follows:

(i)         the duties which would normally be undertaken by the President overlap with those understanding by the Executive Vice President and Branch Assistant Secretary;

(ii)        the NSW Branch had been operating ‘in a completely satisfactory manner during the period of Mr De Costa’s illness since last June;

(iii)       the vacancy arising from Mr De Costa’s resignation is to be filled in two weeks;

(iv)       Mr Morris has had absolutely no involvement with the day to day affairs of the NSW Branch, or with industries ‘completely foreign’ to those administered by the L&H Division;

(v)        there was no evidence of any industrial or other issues likely to arise within such two week period requiring Mr Morris to have access to any of the faculties the subject of his claim or assertion;

(vi)       the order sought was uncertain in its reach;

(vii)      Mr De Costa is still fulfilling some of the functions of NSW Branch President;

(viii)      there would be a ‘clear potential’ for disruption to the affairs of the NSW Branch in the event that the order sough is made; and

(ix)       the granting of the interim relief would in fact operate as final relief in the circumstances.

Consequently it was submitted that it was inappropriate and unnecessary that the orders sought be made by the Court.  Those declarations and orders which will shortly be reproduced.

23                  Both Mr Barry and Ms Owens responded by affidavits in reply to their respective principal affidavits.  Ms Owens sought to correct a number of factual matters asserted by Mr Barry which did not appear to be of critical importance.  I do not think that it is necessary for me to set out that further material in these reasons; what I have already narrated gives sufficient outline of the nature and the essential areas of the dispute, the background thereto and the principal differences between the parties.

The nature of the relief sought in the Draft Rule To Show Cause is as follows:

24                  The relief sought is partly injunctive and partly declaratory in nature.  It is appropriate that I set out the full text thereof below:

‘1.        That the respondents and each of them perform and observe the rules of the Australia Liquor, Hospitality and Miscellaneous Workers Union (“LHMWU”) by allowing John Morris, the Executive Vice President / President, Liquor and Hospitality Division, of the New South Wales Branch of the LHMWU, to act as the President of the New South Wales Branch of the LHMWU for all purposes under the Rules (including Rule 75BN8) whilst the President of the Branch is absent.

2.         A declaration that the Second Respondent, being the President of the New South Wales Branch, is absent within the meaning of Rule 75BN8(i), being on extended sick leave and salary continuance insurance payments because of serious ill-health, and that the Applicant is accordingly entitled to act as Branch President.

3.         A declaration that the Applicant has been entitled to act as President of the New South Wales Branch at all times that the Second Respondent has been absent.

4.         That the respondents and each of them perform and observe the rules of the LHMWU by recognising and continuing to recognise John Morris as acting President of the New South Wales Branch of the LHMWU for all purposes of the Rules, whilst the President of the Branch is absent.

5.         That the respondents and each of them perform and observe the rules of the LHMWU by recognising and continuing to recognise John Morris as acting President of the New South Wales Branch of the LHMWU for all purposes under the Rules, whilst the President of the Branch is absent and until any casual vacancy is filled upon any resignation of the Second Respondent taking effect.

6.         That the Respondents and each of them observe the rules of the LHMWU by allowing the Branch President (and acting Branch President) to leave the chair when he or she wishes to speak on a question other than a point of order, and to allow the Branch President (and acting Branch President) to immediately resume the chair when he or she has finished speaking, in each case without the requirement that the meeting approve such actions by resolution.’

25                  Though relief is sought of course at the instance of the applicant, the fifth to eleventh respondents, who are separately represented, support the applicant’s case for the grant of that relief, being relief claimed however at the present time only upon an interim basis.

26                  The statutory basis for the relief sought is clause 164 contained within Schedule 1B of the Act, sub-clauses (1), (3), (4), (5) and (9) whereof reading as follows (there is uncertainty in the formal provisions of Schedule 1B as to whether what might otherwise be recognised as sections appeared to be officially called clauses (and subclauses) as the case may be; to avoid confusion, I will use the terminology of ‘clause’ and ‘subclause’):

‘(1)      A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

…

(3)       The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation.

(4)       At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application.

(5)       An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

This Court’s jurisdiction is conferred by clause 338 of the Schedule 1B Act, and pars (a) and (b) of subclause (1) thereof in particular.

27                  The objects of Schedule 1B of the Act are set out in clause 5 thereof reading as follows:

‘The principal objects of this Schedule are to:

(a)       ensure that employee and employer organisations registered under this Schedule are representative of and accountable to their members, and are able to operate effectively; and

(b)       encourage members to participate in the affairs of organisations to which they belong; and

(c)        encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)       provide for the democratic functioning and control of organisations.’

The applicant’s submissions and my preliminary observations

28                  The applicant submitted that the Act ‘places importance on the observance of the rules of an organisation registered under Schedule 1B of the Act’, and that ‘(w)here there is a failure of a substantial nature to comply with a rule, clause 164 ‘… empowers the Court to order that steps be taken to correct the position’, the orders being claimed to be ‘designed to secure compliance with the rules’.  It is however readily apparent, from the text of subclause 164(4) extracted above, that the Court’s power to grant interim relief, such as is here sought, is discretionary in nature to be governed by the rules which the courts have laid down, particularly in an industrial context, as to the grant of interim or interlocutory relief.  I was referred by senior counsel for the applicant to authorities in relation to statutory authority to grant injunctions in earlier industrial legislation, by way of illustration.

29                  Thus in Magner v Fowler (1979) 46 FLR 78, Keely J observed at 104-108, in relation to the Federal Court’s discretionary power conferred by s 141 of the Conciliation and Arbitration Act 1904 (Cth) to give orders and directions for the performance or observance of rules of an organisation by any person or group of persons who is or are under an obligation to perform or observe those rules, that the power was a safeguard designed to ensure the expectation of those persons that those rules will be observed or performed, so as for instance ‘… to check… or to put to an end such action or unauthorised inaction, in all cases where the action or inaction, as the case may be, amounts to a substantial failure to perform or observe the rules of the registered body’.  In the present case of course, it is the contention of the respondents represented by Mr Kenzie QC that to the extent that there has been any failure to perform or observe Rule 75B N8(i), if at all, it is not in the circumstances ‘substantial’, in the light of the consequences which will ensue pursuant to the resignation of Mr De Costa to take effect from 6 April 2004.

30                  Senior counsel for the applicant next referred Cook v Crawford (1982) 62 FLR 34, where at 69, Smithers J observed as follows:

‘So fundamental is it that rules be obeyed that it is only in rare cases that the court refuses an order.  In cases where the making of an order would conflict with the encouragement of organisations of employees in a representative body there may be good reason for the court not to make an order.’

And at 82, Keely J also emphasised that the times will be ‘probably rarely’ where the Court’s discretion should be exercised against an applicant in circumstances involving a breach of trade union rules, such as ‘undue and unreasonable delay’, whilst Shephard J said at 123 that although ‘there is no express limitation imposed upon the width of the discretion by the terms of the section itself (ie the abovementioned s 141), the court ought not to ‘refuse relief to an applicant… unless there be some good and cogent reason associated with the granting of that relief why the court should refuse to act’.

31                  That dicta in Cook was referred to by Keely J subsequently in Troja v Curran (1989) 30 IR 129, in the context of a dispute involving a consideration of s 209(3) of the Industrial Relations Act 1988 (Cth), which was in the same terms as the present s 164(3) of the Act.  At 138, his Honour observed as follows:

‘… I have concluded that the subsection is intended to confer upon the court the discretion, which it did not previously have, to “refuse to deal with” an application “unless it is satisfied that the applicant has taken all steps to try to have the matter the subject of the application resolved within the organisation”… In my opinion the subsection confers an additional discretion and does not take away the discretion, which existed under the previous Act, to refuse to make orders after the hearing of the case.

I am not prepared to uphold Mr Black’s submission that s 209(3) of the new Act is intended to convey that there is a legislative policy that prima facie matters should be dealt with internally…

…

In my opinion, the legislative intention is that the court should consider where “the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation’ and that it must do so before it can exercise its discretion under s 209(3).  If it is not so satisfied, the court may, in its discretion, conclude that it should refuse to hear the substance of the applicant’s case because of the nature of the application or because of other relevant considerations – but it is not obliged to exercise it discretion in that way.’

32                  About a year earlier in Quickenden v Federated Australian University Staff Association (1988) 25 IR 440 at 446, to which Keely J made no reference subsequently in Troja, French J put the applicable test in relation to the grant of interim orders seemingly wider.  At 446, his Honour said as follows:

‘It would not be prudent to lay down any general principles applicable to the full range of interim orders which may be authorised by s 141(2).  But, in so far as an interim restraining order in the nature of an interlocutory injunction is sought, there is no reason why the principles developed to regulate the grant of such relief under the general powers of superior courts should not be applicable…

In Thompson v Townsend [(1979) 38 FLR 143 at 147] Keely J seems to have accepted, albeit it was conceded in that case, that the relevant principles are no different from those to be observed in dealing with applications for interlocutory injunctions.  His Honour went on to apply the test enunciated by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623.  The requirements of a prima facie case and favourable balance of convenience in that test have been either supplanted or equated to the criteria that the applicant for relief show a serious question to be tried, and that the balance of convenience favours the grant of relief…’

33                  I should add for completeness that subsequently to Beecham, Senior Counsel for Mr Barry added reference to what appeared in the joint judgment of Mason and Murphy JJ in The Queen v Joske; ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 at 213, namely that the historical grant of authority to the Court ‘to make such orders as it thinks fit in relation to the matters to which the proceedings relate’, contained in s 141(2) of the Conciliation and Arbitration Act 1904 (Cth) suggested that ‘in its present form it is designed to enable the Court to make any interlocutory order which will safeguard the position and interests of parties pending a final determination, provided that it bear a relationship “to the matter in which the proceedings”.’  That proviso assists to provide a particular key to the approach to be taken to the present interim application, being relief sought by the applicant explicitly on an interim or interlocutory basis.

34                  Upon the footing of the foregoing authorities, senior counsel submitted that the relief sought by the Rule Nisi should be granted, for the following reasons:

(i)         Rule 75B N8 (ie of the NSW Branch of the Union), already extracted in [12(v)] above, stipulated the powers and duties required to be exercise by the NSW Branch President, in addition to those more generally provided by Rule 45 of the registered rules of the Union extracted in [14] above; they were described on behalf of the applicant as important powers and duties concerning the proper functioning of the NSW Branch, and ‘the interests of members’; a number of examples were provided as to the scope of subject matter of those powers and duties;

(ii)        Mr Barry also spoke generally in his second affidavit of duties and responsibilities allocated to or otherwise undertaken by Mr De Costa, involving ‘industry responsibilities in relation to manufacturing, defence establishments, child care and some areas of security’, and of the reporting directly to him in that context by eight organisers; the office of Branch President was said to involve an important function, and negotiations with employees can arise at any time and are essentially ongoing;

(iii)       at the February 2004 meeting of the NSW Branch Council, issues were reported in relation to the security industry (including issues arising in relation to Junee Correctional Centre and an unfair dismissal case), the higher educational sector (with issues at the University of Wollongong, Charles Sturt University and the University of Newcastle), child care (with issues relating to the industry award and a particular pre-school), home care (including disputes over the Home Care Service of NSW and an application to vary the Private Home Care Award), the bread industry (involving several issues concerning various bakeries and manufacturers, and an industrial accident on the site of one manufacturer); elaboration upon the scope of what was involved in terms of administrative functions incidental to the performance of the duties of office of the NSW Branch President was also provided by Mr Barry in his second affidavit; Mr Barry lastly recalled in his second affidavit that ‘… in and about 2001, after a meeting of the National Council of the Union, the National Secretary published material ‘claiming that the Liquor and Hospitality Division (of which I was at the time secretary and of which John Morris was the divisional president) was misusing its funds’, and that such material was published to union delegates only several months before a union election’ (the relevance of that latter material was not explained);

(iv)       irrespective of the matters enumerated in the proceeding subparagraph, in the events which have happened, an implementation of sub rule N8(i) has become mandatory, and that all respondents have become obliged to ensure that such implementation forthwith occurs, it being a so-called fundamental misconception that there must first take place a filling of the vacancy of the office of the President pursuant to Rule 42(c) (extracted in [17] above); for his part of course, Mr Morris as Executive Vice President of the New South Wales Branch undertook to duly act in that position; presently the filling of the vacancy of the office of New South Wales Branch President, that being scheduled for the meeting of the Branch yet to be held on 6 April 2004, when Mr De Costa’s resignation shall take effect;

(v)        whilst 6 April 2004 is only a short time away, there had not been any prior suggestion that Mr De Costa was intending to resign at that particular time; in any event on that day, when Mr De Costa’s foreshadowed resignation take effect, the NSW Branch Executive may fill the vacancy in the office of the President of the NSW Branch, but until that time, in the absence of the Mr De Costa as Branch President, he Mr Morris is entitled constitutionally to act in that position; and

(vi)       it is a misconception on the part of first respondent Ms Owens, being of course the Secretary of the NSW Branch, that she can perform some of Mr De Costa’s functions as Branch President until his retirement takes effect, being functions crystallising on or before 6 April 2004 when the pending Branch meeting is of course scheduled to occur.

35                  As I have earlier indicated, what is presently sought is interim and not final relief.  It is submitted on behalf of the applicant that cl 164(4) of the Act (extracted in [26] above) provides sufficient authority for the grant of interim orders in the terms sought in the present application.  In that regard it was pointed out on behalf of the applicant that the section was analogous to its precursor s 141 of the Conciliation and Arbitration Act 1904 (Cth) which in the view of Stephen J (with whom Barwick CJ agreed) in Joske conferred power on the then Australian Industrial Court to ‘make such interim orders as it thinks fit in relation to the matter to which the proceedings relate’, so long as an interim order would be ‘coincidental with the matter to which the proceedings relate’.  There is nothing to suggest an analogous requirement would not be here satisfied.

36                  Senior counsel for the applicant therefore submitted that it was appropriate for interim relief to be granted in favour of the applicant having the effect of declaring and ordering that Mr Morris has become, in the events which have happened, the President of the NSW Branch of the Union.  An order that such state of affairs exists and should be permitted to exist would be in his submission to grant relief closely analogous to a deeming order of the kind made in Joske.

The submissions of the opposing respondents

37                  Mr Kenzie QC, senior counsel for Ms Owens, and for the other respondents for whom he appeared, they being the opponents of the relief sought, submitted that it was inappropriate to grant any such relief, at least for the following reasons:

(i)         the Court should not grant interim relief in circumstances where the same would take effect in reality as a final order or orders, by reason of the short interval of time remaining before the holding of the pending election; he referred to Adlam v Noack (1998) 90 IR 31 for authority to the effect that there should not be applied to the present circumstances the traditional tests of the general law for the grant of interlocutory injunctions; and

(ii)        particularly should that relief be withheld, bearing in mind the observation of Gray J in McGee v Sanders (No 2) (1999) 39 IR 400 at 404, to the effect that principles relating to the granting of interim injunctions in industrial law contexts may differ from those operating in other circumstances, in that the primary consideration must be the maintenance of effective working operations of a respondent organisation pending the final resolution of the proceedings, irrespective of the constituent controversies involved.

38                  There is force in those submissions.  In circumstances where there are no, or virtually no, factual issues involved, it is inappropriate in principle to pursue the determination of issues of construction merely on an interim basis, as the applicant has purported to do.  Moreover I observe that Mr De Costa has been largely unable to fulfil the duties of his office since mid 2003, but there is no evidence of significance to the effect that prior to the announcement of his resignation on 9 March 2004, that inability has occasioned any detriment or prejudice of significance to the effective administration of the Union’s affairs.  The inference is I think reasonably open to be drawn that had Mr De Costa delayed the announcement of his resignation until 6 April 2004, the status quo of the governance of the NSW Branch and its affairs may well have remained unchallenged, at least until then.  There does not appear to presently exist, for instance, evidence of any threat to the integrity of the income and assets of the Union, or to the continuation of the services expected of the Union by the general body of its membership.  Had the situation been otherwise, I would not have been inhibited in principle by the general law from granting the injunctions sought, merely by reason that they are framed as mandatory in character (see generally Equity Doctrines and Remedies (4^th ed) by Meagher, Heydon and Leeming pars 21-395, in the paragraph commencing Seventhly on page 788).

39                  There remains moreover the conceptual difficulty involved in granting declaratory relief on an interim basis, that form of relief constituting of course binding declarations of right, irrespective of any consequential relief additionally sought (Federal Court of Australia Act 1976 (Cth) s 21).  I am unable to understand how that difficulty can be overcome by incorporating certain declarations purportedly within the scope of orders set out in the draft Rule To Show Cause.

40                  Resolution of the issues arising appears in any event to boil down to the true operation of Rule 42 upon a casual vacancy occurring in relation to a branch appointment.  The contention of the respondents for whom Mr Kenzie QC appeared was in effect that Rule 75B N8(i) of the NSW Branch must be read subject to the operation of the preceding Rule 42 of the Union.

41                  It was submitted in any event by Mr Kenzie QC that the operation of Rule 75B N8(i), in the somewhat complex circumstances of the present dispute which I have sought to summarise from the substantial body of evidentiary material placed before me, does not yield the conclusion that there has occurred a fulfilment of the circumstances stipulated by Rule 42(c) (set out in [17] above), in relation to Mr De Costa’s NSW Branch presidency, the operation of Rule 75B N8(i) falling to be construed and applied against the context of Rule 42(c).  In any event, the Court is I think required to observe, so far as is reasonably open so to do, the operation of those respective provisions in a mutually consistent manner, irrespective of the circumstance that Rule 42 applies to the governance of the Union generally, whereas Rule 75B N8 applies to the governance of the NSW Branch.

42                  There is normally a difference of significance between the vacancy of an office and the absence of an office holder from the fulfilment of the duties of his or her office, and there is no reason why that should not here be the case.  The applicant contends that in the events which have happened and still prevail, Mr De Costa is presently ‘absent’ within Rule 75B N8(i), and that Mr De Costa will continue to be or is likely to be ‘absent’ at all remaining material times up to and including (probably or at least possibly) the proposed meeting of 6 April 2004.  The evidence bearing upon the validity or otherwise of that contention has been summarised in [5], [8]-[11] and [18]-[22] above.  That evidence presents a somewhat complex picture of an internal factional division of loyalties.  The present circumstances are not relevantly similar to a dispute between an employee of a company and his or her employer.  The obstacles confronting the applicant’s case for the present injunctive relief sought seem to me to be twofold, first, as is at least implicitly common ground, that Mr De Costa remains for the time being in office of the NSW Branch presidency, and secondly, that he will remain so appointed until his foreshadowed resignation takes effect on 6 April 2004, whether before or at the conclusion of the NSW Branch meeting to take place on that day.  Until then, Mr De Costa is likely to be ‘absent’, to the extent envisaged by Ms Owens in her evidence.  The issue arising in those circumstances is whether Mr De Costa will be ‘absent’ up to and including the meeting of the Union scheduled for 6 April 2004.  

43                  ‘Absence’ normally connotes a state or period of time of being away, but so much of course depends on the particular circumstances of the case, and perhaps the cause of or reason for the absence.  Some examples of judicial dicta may assist to the extent cited below, albeit not throwing light directly on the precise issues of interpretation arising in the events which have happened as recounted in the evidence placed before me.  In Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27, the issue arose as to whether by reason of the terms of a written contract and in certain events which happened, a bank employee had not ‘diligently perform[ed] all duties and tasks which may devolve upon him or which any authorised officer may entrust to him or request him to perform’.  As a member of a Full Court upholding the employee’s claim for unpaid salary in the particular circumstances, Deane J made the following observations:

‘The appellant would, in my view, have been “absent from duty” for the purposes of cl 12(c) of the award during any period in which he refused to carry out a significant part of his duties and was, as a result, either excluded altogether from the performance of his duties or working in defiance of an instruction from the bank from working in his job altogether.’

Thus what constitutes the absence of an employee in for instance an industrial context may have an imputed or notional meaning.

44                  In Ryan v Heiler (1990) 69 LGRA 307 the question arose as to whether a vacancy had occurred in a council office, pursuant to s 35(e) of the Local Government Act 1919 (NSW), in circumstances where an elected person was ‘absent without leave of the council from three consecutive ordinary meetings of the council’.  Young J observed that ‘[t]he word “absent” is a word which may connote the idea simply of “not at all”, or it may mean “a voluntary or deliberate failure to be present”.  This latter meaning has been preferred in the cases dealing with the absence of company directors for the purposes of ‘articles of association’.

45                  In yet another context, being that of extradition legislation, Gummow J in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514-515 (with whom Sheppard J agreed at 482), said as follows:

‘In the light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of convictions in absentia as involving convictions in the absence of the accused, where his absence was the result of conduct on his part which amounted to a voluntary waiver of his right to be present.’

46                  In the present circumstances, the absence of Mr De Costa from the conduct of his duties of office as President of the NSW Branch of the Union has not of course occurred in any context of disputation on his part with the Union.  Although Mr De Costa has not been paid any salary since his receipt of salary insurance payments (see [5] above), it is undisputed that he presently continues to hold that office, and will do so until 6 April 2004, when his anticipated vacation thereof will crystallise pursuant to Rule 42(c).  I say ‘undisputed’, because the applicant’s case is predicated upon the circumstances addressed by Rule 75B N8(i).  In the meantime the NSW Branch Executive, for the purpose of the conduct of business of the Branch, has not appointed ‘one of its members or an officer of the union or member of the branch or official of the union to act in…’ the position of Mr De Costa, pursuant to Rule 42(c).

47                  In circumstances which I have outlined, I am of the opinion that Mr De Costa has not been ‘absent’ for what seems to me to be a relevantly limited scope of operation of Rule 75B N8(i), ‘limited’ in the sense of addressing an ‘absence’ outside the scope of Rule 42(c).  If in the events which may hereafter happen, Mr De Costa is not present at the meeting scheduled for 6 April 2004, or is in any event unwilling to act as Chairman on that occasion, there is no reason in principle why Mr Morris may not act as Chairman of that meeting.  At the present time, Mr De Costa’s presence or absence at that meeting cannot apparently be foretold.

48                  The application must therefore be dismissed.  I grant however liberty to apply by reason of any circumstance bearing upon the resolution of the present issues which may arise in the meantime.

Associate:

Dated:              24 March 2004