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[1998] FCA 1450
Federal Court of Australia
1998-02-11
Foster J, Doussa J, Mansfield J
Original judgment source is linked above.
REASONS FOR DECISION HIS HONOUR: This is an application under s 421 of the Workplace Relations Act 1996 (Cth) ("the Act") for leave to appeal from a decision of von Doussa J given on 12 October 1998. That decision was with respect to an inquiry under ss 218 and 219 of the Act. The present applicant challenged unsuccessfully the election of the respondent to the office of State President of the South Australian Branch of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union"). That election was declared on 1 December 1997. Section 421 is in the following terms: "In spite of section 24 of the Federal Court Act 1976, an appeal does not lie to a Full Court from a judgment by a single Judge in an inquiry referred to in section 219 or 253M except in accordance with leave given by the Court." It does not contain any expression of the matters relevant to be considered on such an application. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Fohmsbee (Federal Court, Foster J, 11 February 1998, unreported), Foster J, on the basis of submissions put to him, considered the following two factors as relevant to the question whether leave to appeal under s 421 should be given: · whether the decision in respect of which the leave to appeal was sought was attended with sufficient doubt or complexity, that is, whether there was some reasonably arguable point on the proposed appeal to warrant the granting of the leave; and · whether the issue in respect of which the leave to appeal was sought was of sufficient importance to warrant the grant of the leave. Those considerations will commonly be relevant, but the discretion under s 421 is unrestricted in its terms. It would be erroneous to identify and enumerate a list of matters which must exist before leave to appeal is given. In theory the category of relevant considerations can never be closed. Neither can it be said that any one or more factors must exist before the leave is given. Prior to the Act, its legislative ancestors did not provide for any appeal, whether by leave or otherwise, from a decision in a matter such as the present: Conciliation and Arbitration Act 1904 (Cth) s 114; Industrial Relations Act 1988 (Cth) s 421. The only avenue for redress available to a party dissatisfied with such a decision was by way of an application to the High Court for prerogative relief: R v Spicer; ex parte Foster (1958) 100 CLR 163. The present provision reflects that the legislature, whilst contemplating that in certain circumstances an appeal may lie from such a decision, has provided some form of siphoning process before a particular decision is able to be appealed to the Full Court. I also bear in mind that there is a need for certainty in identifying those entitled to, and obliged to, act as officers of a registered organisation. Division 2 of Part IX of the Act specifies extensively what the rules of a registered organisation must encompass, including rules providing for the election of officers and for terms of office not exceeding four years. As the present circumstances demonstrate, often a considerable period of time may elapse between the commencement of the term of office of an elected officer, and the results of an inquiry into the election of that person under ss 218 and 219 of the Act. The prolongation of any uncertainty by the appeal process is inevitable. I think that is one of the reasons why, previously, no right of appeal was given from decisions made in such inquiries, and is a reason why the Court should exercise its discretion to grant leave to appeal only when a sound reason or reasons exist for doing so. I agree with Foster J that, generally speaking, it will be appropriate in considering an application under s 421 to have regard to the nature of the issues sought to be raised in the proposed appeal to determine whether they have a general significance beyond the particular parties, and whether in respect of those issues there is some reasonably arguable matter to be addressed. In the present case the parties have accepted that those two matters are relevant to the exercise of the discretion. The critical issue in the inquiry was whether the respondent was eligible for election, in particular under Rule 4(b)(iii)(1) of the Rules of the Union. It provided: "(b) A member may be nominated as a candidate under this sub-rule if the member:- … (iii) was, during the period of 12 months immediately preceding the closing date for lodging nominations: (1) employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered; …" The facts were not in dispute. The learned trial judge found: "In July 1996 Mr Curry was appointed to the position of "Administration Officer" with the Union. This is not a position expressly provided for in the Rules. The title "Administration Officer" was one assigned to the position to which he was appointed in a notice which advertised a vacant staff position, and in a duty statement prepared in connection with that position. The position was advertised in June 1996 as a "six month contract position for an Administration Officer". A document which set out the selection criteria gave the following information about the position: "Responsible to the State Secretary and NAC, the successful candidate for the position will ensure the smooth day-to-day administration of the office especially the design, establishment and effective implementation of administrative systems and procedures. The position will require extensive liaison to ensure that the aims of the Union are supported through its administrative functions. The position will cease after a minimum of 6 months. Internal applicants are advised that, if successful, their existing positions will be held open until the completion of the 6 months." The duty statement specified that the holder of the position had a range of administrative duties relating to membership dues and records, accounts, day-to-day staff administration, office purchasing, design and implementation of effective office systems, preparation of reports for the State Secretary, State Administration Committee and State Council on administration matters, the performance of certain tasks requested by the State Secretary, and to assist the State and Divisional Secretaries as required. Mr Curry took up his appointment to the full-time position of Administration Officer on 8 July 1996, and continued in that position throughout the 12 months immediately preceding the closing date for nominations. Although the initial appointment was for a six month period, the appointment was subsequently extended." His Honour then identified the relevant question as being whether, as the holder of that full-time position of Administrative Officer in the Union, the respondent fell within Rule 4(b)(iii)(1). He found that he did so, by reference to the eligibility rules of the Union, in particular subrule 1A of Rule 1, which relevantly provided: "1A. … the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof: … (e) Such other persons, whether employees in the industries associated with the constitution or not, who have been appointed officers of the Union and admitted as members thereof or whilst financial members of the Union have been elected as fulltime representatives of any working class organisation to which the Union is affiliated, or as a working class member of Parliament, or as a fulltime representative on any Government Tribunal or Board, in the interests of the Union or Unions. Together with such trades as may be represented by trade unions hereafter amalgamating with the Union." In reaching his conclusion, von Doussa J noted that the eligibility requirements of Rule 1 are not predicated on employment in specific industries, but on employment in or in connection with specific "trades or calling or branches thereof", including persons who are "appointed officers of the Union and admitted as members thereof". Critically, therefore, the question was whether the respondent was an appointed officer of the Union. His Honour observed that the notion of an office is used in different meanings in the Rules: those appointed by election or to fill casual vacancies, salaried officers who are not elected officials but are employees of the Union appointed by the National Council or a State Council, and thirdly sometimes both those categories together. To this point, there is no criticism of the reasons. His Honour then observed that the meaning to be ascribed to the word "officer" in a particular rule must be ascertained having regard to the context in which the term is used. He found that the word "officers" in Rule 1 subrule 1A(e) does not mean an elected official but refers to salaried officers because of the particular wording of that subrule. His Honour noted that a similar view was expressed in Landeryou v Taylor (1969) 15 FLR 147. He then addressed the respondent's particular responsibilities, and concluded "as a matter of fact and degree", and having regard to the nature of the position and the duties which it carries, that the respondent was a salaried officer, and so eligible to nominate for and to be elected to the office of State President. It is contended for the applicant that the learned trial judge fell into error in that conclusion. No reference was made by either counsel or by his Honour to a decision of Keely J in Baillie v Tierney (1995) 63 IR 375. That decision was in respect of a disputed election under the then Rules of the Union. One issue was whether Ms Tierney was eligible to be a member of the union by reason of falling within the description of "an officer" of the Union in the eligibility rule. She had been appointed as industrial officer of the Victorian Branch of the Union, and claimed thereby to be eligible for membership as an officer as that term was to be interpreted under the Rules. Keely J at 384 expressed his agreement with the dissenting judgment of Spicer CJ in Landeryou (above) in the following terms:- "With the greatest of respect for his Honour's opinion I am unable to agree with the statement "… that organisations may if they choose to do so, offer to their employees in positions of responsibility the benefits of membership". I agree with Spicer CJ in Landeryou (at 147, quoted earlier) that "the word 'officers' [does not] embrace persons who are mere employees of the organisation". I would add "even if their work is very important to the organisation and they have been appointed to positions called 'Industrial Officer' or 'Research Officer' ". On the evidence and the rules, in my opinion the respondent Tierney was not appointed as an officer of the Victorian Branch of the VBEF. She was offered and accepted "the position of Industrial Officer" but that was as an employee - not as an "officer" ". Counsel for the applicant submitted that the decision of Keely J was inconsistent with the decision of von Doussa J from which leave to appeal is now sought. He also submitted that by reason of the fact of those conflicting decisions, and alternatively and additionally by following the reasoning of Keely J and of Spicer CJ in Landeryou (above), there was both an issue of significance to warrant the grant of leave to appeal and a reasonably arguable matter to be argued on the appeal. On the first of those two matters, it was also contended that the issue was the more significant as it was arguable that the reasons and decision of Keely J applied as a matter of general principle, and not simply to the construction of the Rules of the Union. It was also separately submitted that von Doussa J had erred in construing Rule 4(b)(iii)(1) by reference to the eligibility rule of the Union, rather than by reference to an industry qualification said to be drawn from Rule 1(2), which his Honour described as "the remnants of the industry rule". In that regard, counsel referred to Rounsevell v Mitchell (1968) 11 FLR 414.
It is convenient to deal with the latter point first. I am not persuaded that there is any real doubt about the correctness of his Honour's reasoning. He has referred to the relevant provisions of the Rules. In my view, his conclusion that the expression in Rule 4(b)(iii)(1) is drawn by reference to the eligibility provisions in Rule 1 subrule 1A in the manner he identified is clear. I am also of the view that the point is not shown to be of sufficient significance to warrant the grant of leave to appeal. It concerns the construction of the Rules of one Union. They are not shown to have general significance by reason of their terms. There is nothing to indicate that the particular issue is of pressing or ongoing concern with respect to any other person or persons within the Union in terms of eligibility to nominate for election to an office. In respect of the first contention also, I am not persuaded that I should give leave to appeal. The applicant accepts that von Doussa J addressed the correct critical question, involving construction of the Rules of the Union. He also accepts that the word "officer" may have a wider meaning than that ascribed to "office" in s 4 of the Act, and may not necessarily carry the same meaning in the Rules of the Union or any particular registered organisation as it is defined in the Act. In Landeryou (above), the majority judgment of Dunphy and Joske JJ and the dissenting judgment of Spicer CJ clearly involved a construction of the particular Rules of the organisation in respect of which the issue arose (see at 147 and 157-158). The case turned on the proper construction of the then Rules. The decision of Keely J in Baillie (above) must be seen in that context. That decision involved an interpretation of the Rules of the Union which were then in force, in particular including the 1989 rules of the Vehicle Builders Employees Federation of Australia which had, shortly before, amalgamated with another organisation to form the Union. It does not appear that those Rules were in the same, or substantially the same, terms as the current Rules of the Union, at least so far as they are relevant to the present application. No particular error in his Honour's identification of the relevant Rules of the Union, or in relation to his reasons by reference to them, has been identified. Consequently, I do not think that there is any arguable error on his Honour's part so as to warrant the grant of leave to appeal. The decision of Baillie (above), seen as it must be as a decision on the particular Rules then before the Court, is not necessarily a decision inconsistent with the decision of von Doussa J. This is not therefore a matter in which I am persuaded there should be leave to appeal, so that the Full Court might pronounce on the correct construction of the Rules of the Union in the light of those two decisions. Its decision would not speak to the proper construction of the Rules as it stood when Baillie (above) was decided. Nor do I think that, in some other respect, the issue before von Doussa J was itself of sufficient importance to warrant leave to appeal. As I noted above, it concerns the particular Rules of a particular Union. There is nothing to show that those Rules have an especial significance beyond the Union, or indeed on this point that there is any pressing significance to others within the Union to whom they might relevantly apply, sufficient to warrant the grant of leave. Accordingly the application for leave to appeal is refused.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield. Associate: Dated:
Counsel for the Applicant: Mr T McRae Solicitors for the Applicant: Michael W Speck & Co Counsel for the Respondent: Mr P Hannon Solicitors for the Respondent: Duncan & Hannon Hearing Date: 23 October 1998 Date of Decision: 23 October 1998
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
Fohmsbee
(1958) 100 CLR 163
(1969) 15 FLR 147
(1995) 63 IR 375
(1968) 11 FLR 414