Baird, David Ian v Evans, A.H. & Ors [1980] FCA 18

With the consent of all parties, these three matters were heard concurrently. In each matter the claimant, being a member of the Fdderated Liquor and Allied Industries Union of Australia, hereinafter called "the Union", an organisation of employees registered under the Conciliation and Arbitration Act 1904, as amended, hereinafter called "the Act", 1s seeking orders pursuant to s.141 of the Act, In each matter each respondent is a member of the Union and thus is under an obligation to perform and observe the rules of the Union. At the time the proceedings were commenced each respondent was a member of the branch committee of management of the Tasmanian branch of the Union. Since then one of the respondents, R. Cope, has resigned his office as member of the branch committee of management and at the hearing the claimants indicated that

they no longer sought orders against him and so his name as a respondent is struck out.

When the matters were called on, Counsel for the respondents, Evans, Stocks, Shelverton, Jones, Stalker, Hollands, Rock, Baker and Toland in Matter V. No. 35 of 1979, for the respondents Evans, Stocks, Shelverton, Stalker, Hollands, kock, Baker and Toland in Matter V. No. 36 of 1979 and for the respondents Evans, Stocks, Jones, Stalker, Hollands, Rock, Baker and Toland in Matter V. No. 1 of 1980, announced that his clients consented to the orders sought. The Court noted what had been said but deferred making any orders until the completion of the hearing of the proceedings against the other respondents. In the result the respondents Sherry, Huxtable, Stubbs and Richardson were the only persons opposing the orders sought by the claimants.

In July 1978 the claimant Baird was elected to the office of organiser for the Tasmanian branch of the Union, see branch rule 10. Under that rule the branch committee of Management determines the number of organisers to be elected by the branch and the organisers are elected according to the provisions of branch rule 5 and hold office for a term of 4 years. Parts of rule 10 are set out:

(c) The organiser's duties shall be the organising of an unlimited number of persons who are employed or usually employed in any capacity, whether permanent or casual, 1n or 1n connection with the Industries and Establishments set out in Federai Rule 4 - 'Constitution', collection of contributions, fines, levies and donations or fees from any other source. The Organisers shall assist the Secretary un carrying out the business at meetings. The Organisers shall under the direction of the Secretary, be empowered to handle any disputes.

(a) The Organisers shall be subject at all times to

and shall carry out the same, The Organisers shall perform any other duties that the Committee of Management may require of them. They shall account to the Secretary for all moneys collected, not less than once each fortnight, and every day if so required by the Secretary.

The general control and conduct of the business of a branch

is vested in the branch committee of management, see branch rule 16, and without limiting the validity of those powers,

the branch committee of management has express powers to employ and dismiss collectors, to appoint representatives of the branch to the A.C.T.U. and other outside associations, to

vote and expend any money that may be necessary in connection with the business of the branch and to determine the salaries and other remuneration to be paid to branch officers,

organisers and staff. Branch rule 17 provides as follows:

" 17. CONTROL OF BRANCH COMMITTEES OF MANAGEMENT BY MCMBERS

Subject to the rules and to the decisions of Council and the Federal Committee of Management, the Branch Committee of Management shall comply with any direction given by a Branch meeting of members at which not less than one percent of

Federal rule 5 provides that the registered office of the Tasmanian branch shall be situated at 86 Murray Street, Hobart "until otherwise determined by the branch committee of management". Branch rule 15 empowers the branch committee of management to appoint delegates to collect members' contributions or other monies due to the branch and who have power to adjust any minor dispute which may arise at the place where they are employed. Persons appointed delegates are known also as collectors, and branch rule 15A provides that the duties of collectors are the collecting of contributions and that the collectors are subject to instructions given to them by the branch secretary. Their remuneration 1s determined from time to time by the branch committee of management. Branch rule 26 makes provisions for branch meetings and branch rule 31 makes provisions for and the method by which special meetings of the branch may be called. The only matters that can be dealt with at special meetings are those appearing in the notice calling the meeting. Branch rule 9 lists the duties of the branch secretary but a reference to them suggests tnat they

are essentially of a clerical, including accounting, nature.

The general control and conduct of the branch, as has been

said, 1s by branch rule 16 vested in the branch committee of management.

On 27 November 1979 a special meeting of the Tasmanian branch of the Union was held at Hobart. No attack has been made as to the validity of that meeting. No reference has been given of the matters appearing in the notice calling the meeting. Some 111 members attended the meeting. A number of resolutions were passed at that special meeting, some by the barest of a majority. It 18 necessary to set out those resolutions in full and for the sake of identification they are marked A to F inclusive:-

The Union journal shall be registered as a publication with the Post Office for transmission by post. It shall be edited by the Secretary who shall be responsible for its production, distribution and content. The Secretary may engage such individuals or company to assist in ats publication. It shall be published

either 4 or 6 times a year, as the Secretary determines and when an election 1s called it shall not contain any attacks on a member of the Union, nor shall the frequency of issues be varied. All expenditure related to the Union journal is to be paid as soon as incurred, "

The Union offices in Hobart at present located next door to the Storeman & Packers, Vehicle Builders and Clerks Unions and for which this Union pays rent to the Shop Assistants

shall be relocated to a new site of the Secretary's choice. The Union's offices in Launceston likewise next door to the abovenamed Unions shall be moved to a new site of the Secretary's choice preferably the Launceston Trade Hall if roor is available. Further, the Secretary shall investigate the establishment of an office of the N.W. coast and shall open such office if he deems 1t feasible. All expenditure relating to the moving, establishment, rental and renovation of such offices 1s authorized by this meeting. "

ORGANIZERS, APPOINTMENT OF NEW COLLECTORS, INDUSTRIAL OFFICER, OFFICE STAFF, REMUNERATION AND CONDITIONS OF STAFF AND OFFICES, OPFICE STAFF, SHOP STEWARDS.

(a) overwhelming defeat of Mr. D. Shelverton in the recent elections for trustee.

(b) failure of Mr. Jones to submit himselt for election.

(c) close association of these two officers to other unions such as Vehicle Builders, Storemen & Packers, Shop Assistants and Theatrical Employees.

(dad) failure of the committee of management to consult the membership on their appointment.

(e) consistent support they have given Mr, Baird against Mr. Sherry, that Mr. Shelverton and Mr.Jones be dismissed forthwith, with two weeks pay.

the following persons shall be appointed as full time collectors -

(1) Mr. George Burgess whose area of activity shall be bounded by Tamar River, South Esk, Macquarie River as far as Ross and then in a straight line to Cape Naturaliste.

(11) Mr. Les Morrison whose area of activity shall be south of Ross, including the area known as West Coast but not the East coast.

(121) The following casual collectors, Mrs, Christine Huxtable, Mr, Eric Sweet, Mrs. Pat Hollis, Mr, Frank Clarke and Mrs. Lesley Doyle whose areas of activity shall be respectively, restaurants southern rural towns, east coast, rural northern towns and clubs.

Mr. Baird shall, from Monday December 3d organise within the area of Marrawah, Guildford, Rowallan, Poatina and bounded on the east by the Macquarie, South Esk and Tamar Rivers, with the e:clusicn of King Island, Burnie and Devenport.

Mr. Baird shall work solely within the area previously defined and shall not leave that area from Monday to Friday between the hours of 9.00a.m. and 5.00p.m. Mr. Baird's duties within the area are strictly confined to collecting money, recrulting members and answering members queries. He shall not attend to claims, new awards or variations of existing awards or conduct stop work meetings. The committee of management shall not give any more duties to Mr. Baird other than those outlined in this motion.

The duties of casual collectors may be varied from time to time as the Secretary determines.

The remuneration and conditions of the Secretary, organizer and collectors shall forthwith be equated to the hotel award as follows:-

Secretary/Treasurer ~- Classification 27, 3rd Year clerical Plus a sum of 25% to compensate for weekend work and overtime.

Organiser and full-time Collectors - Classification 27, lst year plus a sum of 25% to compensate fcr weekend work and overtime,

Casual Collectors - Classification 27, Ist year, casual rate.

The lump sum organizers expenses of $20.00 (per week) paid to organizers are abolished as well as the $30.00 per week Organizer expenses of the Secretary.

The Office Assistant Ms. Joanna Dean shall be dismissed with two weeks pay and replaced by a steno/secretary. Such steno/secretary shall be appointed by the Secretary after advertising, with her statement of duties and remuneration also

An Industrial Officer shall be appointed by the Secretary at a future date, to be determined by the Secretary, after advertising. This officers statement of duties and remuneration shall be determined by the Secretary, and such officer, if appointed : shall be responsible to the Secretary in relation to all industrial matters.

secret ballot under a "Hare clark" system of voting with the assistance of the electoral office. The

Secretary shall determine the number of shop stewards

to be elected at each work place and where the electoral office 1s unable to assist shall conduct such ballot himself. The Secretary shall make every effort to ensure a shop steward is elected at every workplace. Fresh elections shall be held for

existing shop steward positions when the Secretary deems fit.

All expenditure necessary, as determined by the Secretary, for the implementation of this motion 1s hereby authorised. '

D. UNION CARS, LAWYERS, FACILITIES FOR NEW MEMBERS, INSURANCE, CREDIT UNION FACILITIFS, EMPLOYMENT AND TRAVEL SCHEME,SURVEY OF MEMBERSHIP, SECRET BALLOT FOR CALLING OF STRIKES, RE-ORGANISATION OF OFFICE,

The Secretary 1S to allocate the use of the Union cars as he deems fit. The Secretary 1s also authorized to sell the existing 6 cylinder Ford sedans for smaller

4 cylinder vehicles of his choice, when he feels the branch 1s best able to afford the change. In the aunterim he 1S authorized to purchase a further 4 cylinder vehicle for the use of the fourth full-time Union official,

The Secretary 1s to be the only official of the Branch to consult lawyers, of his choosing, on any matter relating to the branch.

All new members of the branch are to be provided with a membership card and introductory pamphlet on the Branch. Such pamphlet and card to be edited by the Secretary.

On the basis that this Union is to provide an increased range of services to members, the Secretary 1s to investigate and introduce an employment and travel scheme as well as a discount insurance scheme, 1f

the Secretary feels that such schemes can be afforded by the Branch he is empowered to make such appointments

and spend such moneys as is needed to introduce the schemes. The Secretary 1s also empowered to investigate alternative credit unions and if he so desires change the Union's existing credit union,

In order to obtain appropriate information of Union members in order to improve services and better award conditions the Secretary 1s authorised to have a survey conducted of the Union membership when he deems fit. The Secretary 1S authorised to hire such temporary staff as 1s needed to assist, as well as this, the Secretary shall determine their pay and conditions.

Before any strike is called, the Secretary, where he considers it feasible, shall conduct a secret ballot of members to determine their wishes.

In order to give staff greater time to provide services to members the Secretary shall investigate the introduction of a computer service in the office. If the Secretary determines that a computer service can be of assistance he 1s hereby authorised to purchase or lease such a service at a time when he thinks the Branch 18 financially best able to afford 1t, "

" E. DELEGATES TO T.T.L.C. AND REPS. TO A.C.T.U. DATE AND PLACE OF ALL MEETINGS OF COMMITTEE & BRANCH MELTINGS

The following list of members shall represent tne Union: At T.T.L.C. Meetings:-

Nick Sherry Christine Huxtable Neville Richardson Clemm Stubbs Rupert Cope

Where a person 1S unable to attend the next person on the list shall attend in his or her place.

The following list of people shall represent the Union at A.C.T.U. Congress Meetings:-

Where a person is unable to attend the next person on the list shall attend in his or her place.

All future quarterly branch meetings and committee meetings shall be held in Hobart at a time, date and

venue to be determined by the Secretary. No expenses shall be paid to members of the Committee except for loss of wages and only after the approval of the Secretary. "

" F. MOTION TO CONDEMN MR. BAIRD AND ASSOCIATES ON COMMITTEE FOR LACK OF COOPERATION

This meeting strongly condemns, and censures A. Evans, K. Stocks, F. Rock, F. Stalker, T. Hollands, G. Baker, P. Tolond and D. Baird for supporting measures at Meetings designed to transfer duties normally

carried out by the Secretary to Mr. Baird who was overwhelmingly defeated in the election.

Further this meeting has no confidence in these members of the Committee and demands their resignations."

The Claimant Baird 1s seeking orders under s.141 of the Act that the respondents perform and observe the rules cf the Union by treating as null and void and of no effect certain parts of the resolutions passed at the special meeting. The substance vf his

contention is that, although the committee is requires. tu comvly

with a direction given at a branch meeting of members at

which not less than 1 percent of the financial members of the

branch are present, the resolutions passed were not a direction to the committee of management and in any event they had the effect of transferring power from the committee of management to the secretary and were contrary to the provisions of the rules of the Union and in

Substance amounted to an unauthorised alteration of rules.

There 1S much substance in those contentions, Resolution A gives almost unlimited power to the secretary with respect to the publication of the journal including power to ancur and expend unspecified amounts of Union funds without reference to the committee of management or a branch meeting. The resolution is not in the form of a direction to the committee of management and it 1s doubtful that, even if it were, 1t would be valid in 1ts entirety in that 1t purports to give a power to the secretary, which power, under the rules, 1s vested in the committee of management, Rule 17 1s made subject to the rules of the Union and a branch committee of management cannot by resolution direct something to be done which 1s contrary to those rules.

Resolution B 1s of the same nature as Resolution A. Resolutions C and D, suffer from the same defects as Resolution A. In addition to suffering those defects, Resolution E purports to appoint representatives to the A.C.T.U. and other outside associations, a power conferred upon the branch committee of management. Those resolutions cannot be construed as a

Counsel appearing to oppose the making of the orders contended strongly that the Resolutions A to E inclusive should be construed as directions under branch rule 17 and came within the power of a meeting of the branch members. These contentions are rejected. In form, the resolutions are not directions, but of greater importance, 1n substance the resolutions purport to alter the rules of the Union by transferring power from the committee of management to the secretary. The rules of the Union do not permit this to be done. The claimant Baird is entitled to the orders numbered l(a) to (£) 1nclusive

Resolution F calls for different considerations. No charge has been laid against the claimant Baird. No breach of the rules of the Union has been alleged against him. It was contended on behalf of the claimant that the claimant had been denied natural justice, The Court doe: not know what matters were included in the notice of meeting, but in the light of the concessions made by Counsel for the claimant concerning the validity of the meeting, the Court must assume that the matter, the subject of resolution F, was properly before the meeting. The nature of the resolution 1S not one which in my opinion calls for the application of the rules of natural justice. The meeting of the branch members in this case does not partake of the nature of a domestic tribunal exercising powers of a quasi-judicial nature. The meeting 18 not exercising investigatory powers as a prelude to possible charges being laid against the claimant Baird. Counsel for the claimant relied heavily on the expressions of opinion 1n Magner v, Fowler (1979) 26 A.L.R. 671 1n which Keely J. held that under the rules of an

organisation the federal committee of management had no power to appoint a committee to investigate and report upon a charge laid against a member of the organisation being a charge relating to branch matters, and accordingly made appropriate orders under s.141 of the Act. The principles

applied in Magner v. Fowler do not apply to the facts of this

case. Order 1l(g) of the rule nisi should be discharged,

The additional facts relating to the other two matters can be dealt with together. Prior to October 1979 each of the claimants Jones and Shelverton was a ccllector, having been so appointed by the Tasmanian branch committee of management pursuant to branch rule 15, see also earlier reference to branch rule 15A. On 16 October 1979 the

Tasmanian branch committee of management resolved as follows:-

"It is the will of this branch to provide adequate and the best service to the members of this Union,

In line with this Committee of Management compliments collectors Denis Shelverton and John Jones for their efficient attention to members' enquiries and problems on top of their duties as collectors.

"This Committee of Management is satisfied that their work is of such high standard that this Union would be better served if their responsibilities were increased and acknowledged. To this end Denis Shelverton and John Jones are hereby and shall be from the 17th October, known as Organisers of the Branch and appointed thereto,

to ballot of rank and file at the next general ordinary election of the branch. Their geographical area of coverage shall not

Thereafter, each of the claimants has carried out the duties of an organiser. The special meeting of members of the branch held on 27 November 1979 by resolution C purported to dismiss them from their positions as organisers. Branch rule 18

" 18. REMOVAL OF BRANCH OFFICERS AND MEMBERS Of COMMITTEE OF MANAGEMENT

Any officer, organiser, or member of the Committee of Management may be removed from office by a special meeting of the Branch called in accordance with Rule 31 at which not less than one per cent of the financial members of the branch are present,

if he has been found guiity, in accordance with the rules, of: (2) misappropriation of the funds of the Union, or (11) a substantial breach of the rules of the Union, or (ini) gross misbehaviour, or (iv) gross neglect of duty, or {v) has ceased, according to the Rules of the Union, to be eligible to hold the office,

The officer, Organiser or Committce member shall be given particulars of his alleged failure at least two weeks before the special meeting called to deal with his case.

The removal motion to be effective must be carried by a majority of two-thirds of members present at the meeting at the time of voting.

Neither of the claimants has been found guilty of any of the charges specified in that rule. Neither had been given particulars of any

charge against him. The removal motion had not been carried by a

Majority of two-thirds of the members present at the meeting at the time of voting, in fact the resolution was carried 56 votes for, 55 votes against.

In all the circumstances, Counsel for the respondents opposing the making of the orders sought by the two claimants conceded, very properly, that 1f the claimants were in fact organisers, then their purported dismissal was invalid and the orders sought should be made, He contended, however, that neither of the claimants had been appointed validly to the position of organiser and thus the purported dismissal was

aneffective and accordingly the orders sought should not be made,

Branch rule 10 makes provision for organisers in the Tasmanian branch and for present purposes the relevant parts

" 10. ORGANISERS (a) The Committee of Management of each Branch shall determine the number of Organisers to be elected by each Branch. Such Organisers

shall be elected according to the provisions of Branch Rule 5 but

between elections the Committee of Management may appoint additional temporary Organisers for a period

As indicated earlier, the branch rules make provision for the election of organisers every four years. The rules make no provision for the filling of a casual vacancy in the office of organiser. Branch rule 10(a) makes provision for the appointment of additional temporary organisers between elections, There was no evidence as to any determination by the committee of management of the number of organisers to be elected by the Tasmanian branch. There was evidence that at the present time there are 3 organisers ain the branch, namely the 3 claimants. The resolution of 16 October 1979 does not, in express terms, refer to the appointment of "additional temporary organisers" nor does it make express reference to the appointments being for a period of not more than

six months. The resolution implies that the appointments were to remain in force until the next general elections. There is no evidence when that will be , but I am prepared

to infer from the material before me that the next general elections to the office of organiser will be at a time greater than six months after 16 October 1979. No inference can be drawn that the appointments were for a period of not more than six months. In all the carcumstances, I am of opinion that neither of the claimants was appointed validly

The Court does not find it necessary to express an opinion on whether, by entering into the position and performing the duties of, organiser, either of the claimants Jones or Shelverton had impliedly resigned from his position of collector, c/f Egan v, Maher (1978) 20 A.L.R. 421 per Evatt J. at p. 437 and Northrop J. at pp. 439-441,

Resolution C was passed on the assumption that each

of the claimants Jones and Shelverton was an organiser, It purports to dismiss each from that office. The provisions of branch rule 18 had not been complied with, In these

circumstances, the claimants are entitled to the orders sought. The resolutions can have no force or effect, A non-compliance with the rules of the Union has occurred and the respondents

should be directed to perform or observe those rules,

preceding pages are a true copy of the Reasons for Judgment herein of the