Bourke, Michael Patrick & Ors v Mapstone, David John Garland & Ors [1984] FCA 100

Federal Court of Australia|1984-04-09|Before: Northrop J, Kirby JJ

VICTOR'A DISTRICT REGISTRY hog ~ ae? 28 jot 3982 Te ao BETES INDUSTRIAL DIVISTOL WD é aay BETWEEN: MICHAEL PATRICK BOURKE, PATRICK BROPHY, JOZN FOs, PAUb GRIFFITHS, TED KOWALSAL, DaVID LoWIS, VIUCD MCKENNA, GORDOM te>t JOU NUCIFORA, B GRAHAM TREACY Applicanzs

DAVID JOBS GARLAND MARGARST Din.iANe, CALLAGHAN, CHRIST RUSSELL FORE, rv BETTE LORRAINE ANDeh., GABRIELLE MARY CRAWFORD, MAPY ANTOINETTE WILLIAMS, GALI GOPRIS, JEFrrREY ALAN MULIER, ALBERT ANTGOnr PAR, BARRY TREVOR LLINSKET, AXEVIN LOSLIC ELRNCHI, DAVID SIEL APPLEBY, SOLE Baic FauhLs, BRIAN FRANCIS TOGLEY, REGINALD CHARLES O'BRICN, LESLIS JOM? BOURKH, DAVID ROSS GRANT COSSART ana the

CORAM: Northrop J. DATE: 9 April 1984 WHERE MADE: Brisbane

The Court orders that the rule nisi made berezn o1 Lt

and DAVID JOHN GARLAND MAPSTONE and ORS. Respondents

CORAM: Northrop J. PLACE: Brisbane DATE: 9 April 1984

Michael Patrick Bourke is a member of the Federated Clerks' Union of Australia ("the Union"), an organization cf employees under the Conciliation and Arbitration Act 290% ("the Act"). He is attached to the Federated Clerks' Union of Australia (Central and Southern Queensland Branch) Union of Employees ("the 3raach"), a Eranch of the Union. He ais a

member of the Branch Council of the Branch. On J4 Octorer

1953 he commenced these proceedings against the Union and t*> twenty other members of the Pranch Council. The centra! issue raised by the proceedings is whether a resolution

acted upon by the Branch Council on 11 February 1933 1% dismissing ten employees employed by the Branch, was valid. If the resolution is anvalid, consequential orders ar? sought, but that part of the proceedings has been deferre' pending the determination of the validity of the resolution. The proceedings are brought under s.141 of the Act and the Union is a party since orders are sought relating to ttc

When the proceedings came on for hearing, the ten employees who had been dismissed from their employment b, reason of the resolution, being members of the Union, were granted leave to be added as applicants in the proceedings. Those ten members are Patrick Brophy, John Fox, Paul

Griffith, Ted Kowalski, David Lewis, Vance McKenna, Gordon

McPherson, John Nucifora, Geoff Purcell and Graham Treacy.

At the hearing, counsel appeared for the eleven applicants. Counsel appeared for the Union. A solicitor appeared on behalf of two of the respondents, namely Barrv Trevor Linsket and Erian Francis Tooley. He announced that.

his two clients consented to the orders sought by the

applicants and thereupon by leave withdrew fro furthe. attendance at the Court hearing. Counsel appeared for tne

other eighteen respondents to oppose the orders souqht.

These proceedings are but another part of a series of legal actions following elections within the Union and the Branch which were conducted in the latter part of the year 1982. At those elections a number of existing officers of

the Union and of the Eranch were defeated. An electic>

inquiry under the Act involving the Union was conducted hy a

Full Court of the Federal Court and judement was given on November 1983 in favour of the tersons eiected. Pollowing the dismissal of the ten employees on 11 February 1983, eight of them appealed to the Federal Executive of the Union. Five of the respondents to the present proceedings thereupo) commenced proceedines in the Federal] Court challenging the validity of those appeals. On 6 June 1983 the Court held that under the rules of the Union and of the Branch those

eight persons had no right to appeal to the Federaj Executive

and made appropriate orders under sub-section 141(1G) of the Act. On 4 November 1983 a Full Court of the Federal Court, by majority, dismissed appeajs from the orders made on 6 June 1983. For a@ proper understanding of the present proceedings the joint judgment cf Northrop and Kirby JJ. in those appeals should be read, but for present purposes the follovinc

"At this stage, it is of importance to state what issues are not raised by the anneals. As has been stated, the cssential issue raised is whether under the rules of n,

including the Fed. Rules and the Brancr Rul the former employees of the C. & 3.Q. Bran have a right of appeal to the Fedor Executive against the Gecision of the C. S.Q. Branch Council constituted by th resolution to terminate their erplovwnenc. Implicit un that issue 1s the issue whether under the rules of the Union, the Federal Executive has the power to hear and determine those appeals. Jf the answer to that essential issue is in the affirmative, the subsidiary issues arise, namely whether the Federal Executive has the power to emvloy those persons pending the hearing and determination of the appeals, and if so, whether it has the power to reccup from che C. & s.Q. Branch wages paid to those persons. The issue of whether the emmloyment was terminated lawfully by the Cc. & S.Q. Branch is not raised on this appeal. The question of snat remedies, if any, the disinissed employees have, either by statute or by common law, against the Union or the C. & S.Q. Branch, 15 not raised on this appeal even though counsel for the appellants before this Court sought to rely upon the consequences of the dismissal in support of contentions rade in supnort of the subsidiary issues. Qn the appeal before this Court, the answers to the issues raised depend upon the proper construction of the rules of the Union, including the Fed. Rules and the Branch Rules."

The present preceedings were commenced before the Full Court gave its judgment on 4 November 1983. The essential issue raised by the present proceedings is whether the emplcyment of the ten employees was terminated lawfully by the Brancnr

Under the Branch Rules, the supreme control] anc management of the Branch is vested 1n the Branch Council]. ft consists of the Branch President, the Branch Vice-President, the Branch Secretary and the Assistant Branch Secrenary who are the four officers of the Branch, see Rule 25, together

with seventeen district representatives elected in accordance

with the Rules; aun particular see Rule 206. The Bearc®

Council meets at least three times a year, but extraordinery

meetings may be held; s¢e Rule 30 which is set out in full:

Tne Branch Council shall meet at least three times a year, but the Branch President on receipt of a requisition in writing signed by four members of the Branch Counces;l1 calling for an Extraordinary meeting of the Branch Council, shall cause a copy cf same to be submitted by the Branch Secretary to each member of the Branch Council, and upon a majority of them replying in writing in the affirmative, he shall forthwith call an Extraordinary meeting of Branch Council, which meeting shall be held within fourteen (14) Gays of the date on which notices calling such

meeting were issued. Such requisition shall specify the objects of the proposed Council meeting. An Extraordinary Meeting of the

Branch President or by any mentber of the Branch Executive authorised by a resolution of the Branch Executive."

Between meetings of Branch Council, control of the Eranch 18 vested in the Branch Executive which comprises the four

officers, together with five other members of 'the Branch

see Rule 34. Five financial members form a quorumx for Ml

(a) At meetings of Branch Council all Branch Councillors other than the Brench President shall be entitled to a primary vete.

(b) When a Branch Councillor is actina as the Chairman, however, he shall have the same voting power as 1f he were net Chairmir, except in the event of the voting being ecual, in which case he stall also exercise a casting vote.

(c) For the convenience of members of Branch Council, a motion noved and seconded may be submitted in writing to the Branch President, who shall thereupon cause 2 cony of same to be submitted by the Branch Secretary to each member of the Rranch Council, and upon a majority of them giving their assent in writing, such motion shall thereupon become a resolution of the Pranch Council, as though same had been passed at a constituted Branch Council meeting.

(d) In the event of Brancn Executive carrying a motion which requires or for which Branch Executive desires immediate anproval or consent of the Branch Council, the Branch Secretary shall immediately suppiv a copy of such resolution to each member of the Branch Council, and upon a majority of them givaince their assent in \riting, such rescluticn shcj] thereupon become a resolution of the Branch Couneil as though it had been vorissed at a constituted Branch Council meeting.

Provided that if within a rericd of 11 days from the despetcn of the letter or telegram, a resolicion has not bees Joterainei

in accordance with the foregoing provision, and further provided that the nurber nf votes recordei edauals tne established quorun, then the resolution shall be determined in accordance with the majority of opinion expressed and shall thereupon becone a resolution of the Branch Council as though 1t ha@ been passed at a constituted Branch Council meeting.

Further provided that, if after expiry of such period a quorum of votes has not heen recorded the resolution shajl lapse."

Ten financial members form a quorum for Branch Council;

The Branch Council may make such additions or reductions to Branch Staff as it considers necessary and shall have authority to suspend or dismiss from office any employee. Branch Executive shail have power to make such temporary appointments to staff vacancies as 1s considered necessary subject to confirmation by Branch Council or to suspend any Officer or employee of the Branch at any time providing that such Officer or employee shall have the right of appeal to Branch Council."

The salaries of officials and employees of the Union shall be @etermined by Branch Council from time to time. Branch Council or Branch Executive shall have pover to engage employees For Auties other than whose provided

for in Rules 32 and 34 and may determine such engagement, but such determinations shall be on a weekly basis."

In their reasons for judgment given on 4 November 1983, Northrop and Kirby JJ. set out Rules 32 and 48 and then said

"Difficulties arise in the construction of this rule, but counsei for the varties hefore the Court agreed that for present nurposes the relevant rule 1s Branch Rule 32."

No similar corcession was made in the present proceedings, but the difficulties disappear on a proper construction of Rule 48. That rule empowers a Branch Council to decide the salaries to be paid to officials and employees of the Branch. In the Branch Rules the word "Union" is often used to describe "the Branch". In Rule 48 the word "determined" is used in the sense of "deciding". Thereafter, the rule

confers an express power on the Branch Council to en

age other employees and to decide the terms of that enaagement, but the terms must be on a weckly basis. An engacoment, therefore, on a monthly or yearly basis or for a term of years would not be authorized by Rule 4A. The words "determine" and "determination" are used in the sense of "deciding". The last part of the rule contains a limitation on the power to engage employees. On this construction, Which an my opinion 1s correct, no conflict arises hetween

Rule 32 and Rule 48. Rule 48 is not directed to the

termination of an engagement of employees; it 1s directed ww the fixing of terms of engagement. On this conseructicn 3% 1s not necessary to make further reference to Rule 465, the express power to terminate the engagement of an enrloyes

Some of the applicants in the present proceedinas had been engaged by the Branch as Secretary/Organisers under Rule 46 or as Branch Organisers under Rule 47. Those two rules are set out in full an the joint judgrent of Northroo and Kirby JJ. in the Full Court decision given on 4 November 1983 and need not be repeated. For present purposes it is sufficient to say that the duties of thase employees were amportant and onerous. Nevertheless, it must be remembered that those employes were not officers of the Branch within the meaning of paragraph 133(1)(f) of the Act, nor were Lhey required to face an election at least every four years; see

The ten employees were dismissed pursuant to the procedures described in Rule 31(c¢), conveniently but

of the Act "declaring that Rule 3l(c) contravenes sub-section

140(1). If that declaration 16 made, Rule 31(c) is deemed ts

be vozd from the date of the order; sub-sectior 1419(56}.

The respondents, other than the Union, opposing the orders sought (hereinafter called "the respondents"), ere relying upon a moticn adopled under Rule 3i(c). If it can ba established that at the time that resolution was adonted that part of Rule 31 was contrary to sub-section 1140/1) of the Act, the resolution has no validity and the dismissals were unvalid. Accordingly, it is necessary to determine whether Rule 31(c) is contrary to sub-section 140(1) of the Act. In determining that issue, nothing turns on the fact that the motion was assented to in February 1983 and that the

Mr. Tracey of counsel for the Union presented a thoughtful and carefully prepared submission that Rule 3l]l(c), on its proper construction, was not contrary to sub-sectio. 140(1) of the Act. However, on that construction the dismissals resolution would have been invalid on the ground of non-compliance with the requirements of the rule. MY. Trew of Queen's Counsel for the applicants, not surprisingly, adopted the submissions of Mr. Tracey relating to the construction of Rule 3l1(c). It becomes necessary, therefore, as a first step, to determine, in the sense of "decide", the

meetings of Branch Council the Branch President is net

entitled to a primary vote. There are twenty-one members of

Branch Council, put twenty members only have a rrinary vote at meetings of Council. The Branch President and nine other members of Branch Council can form a quorum and on that minimum number, five members, excluding the President, but with his casting vote, can form a majority to adupt any motion. Branch Council meets at least three times a year but extraordinary meetings may be held; see Rule 30. The Branch President is authorized to call an extraordinary meeting, as as any member of the Branch Executive authorized bv a resolution of the Branch Executive. Apart from those two methods, the procedure for calling an extraordinary meeting is cumbersome and depends upon e majority of Council members,

namely eleven members, approving an extraordinary meeting

before the President is required to call thai meeting.

Rule 3l(c) permits a sampler method by which a motion may be affirmed by members of Branch Council. Any two members may institute the procedures but the motion becomes a resolution only when a majority of Council members - eleven - affirms the motion. In this context, a non-affirmative vote is treated as a "no" vote. Under this procedure, a safeguard as inbuilt. At least eleven Council members must affirm the motion, whereas at a meeting a minimum of five members, with the casting vote of the Chairman, can affirm a resolvtion. It is amportant to note that relaef from this strict

requarement 1s not provided for in Rule 31(c), even thova>

1t 1s nrovided for by the proviso to Rule 31(c) where, in the events specified, six or possibly even five affirmative vores

Rule 31(c). The opening words, "For the convenience o

members of Branch Council" are, in my opinion, descriptive only. The construction urged by Mr. Tracey and Mr. Trev that those words impose a duty on the Branch President to consider whether any motion sougnt to be affirmed in accordance with

Rule 31(c) is for the convenience of members, is rejected.

Such a construction would impose too great a restriction on the privilege of members of Branch Council to initiate the procedures under Rule 3l(c). In 32ts context, those words are

The essence of the submission made by Mr. Tracey was that the procedure prescribed by Rule 31({c) was in substitution for a meeting of the Branch Council ana accordingly, Rule 31(c) should be construed in such a way as to incorporate procedures appropriate to a meeting. That general submission is not accepted. The purpose of Pule 31(c) is to avoid the necessity of holding a meeting and the

procedure prescribed should not be restricted in the wey

contended. Counsel contended that 1t was not possibd amalgamate a series of propositions in the one motion since

no amendments could be moved to that motion. The answer to f

that contention is that if a Ccunci) member considered t>: motion too wide, he could refrain from giving nis assenr in writing. A non-ansver constitutes a non-assent and therefore

is to be treated as a negative vote. Counsel contended that

the motion, having to be in writing, should be signed by the mover and the seconder to enable identification of them as members of Branch Council. 'the rule does not require signatures, and such a requirement 1s not to be implied. He contended that the motion should be submitted personally to the President by the seconder and mover so as to enable the President to satisfy himself that they were members of Branch Council. Again, the rule does not reauire this. In the rule the word "submit" is used in the sense of bringing to the notice of the President or the members of Council. The Branch Secretary submits a copy of the motion to each menbe2 of the Council. The contention places too difficult a burden on members of Branch Council who reside a long distance from the President's normal place of work or residence. The

essential requirement 1s that the motion must be brought to

the notice of the President who is required to do certain things thereafter. It can be broucht to the notice of the President by post or by telephone or by personal delivery.

It is interesting to note that in Rule 31(d) the word

"supply" 1s used instead of the word "submit". The essenrial feature of the procedure is that the motion must be supported by two members of Council, 1t must be in writina and it 7 s*

be submitted eventually to each member of Council. Counse}

contended further that the subrission of the motion by the Secretary to each member of Council ha@ to be simultaneous or nearly simultaneous so as to allow discussion by members before voting and before the majority of assents in writing are obtained. The rule does not require this to be done, but Giscriminatory submission of motions to different members may indicate a lack of bona fides by the Secretary, resulting in non-compliance with the requirements of the rule. In particular, 1t 1s noted that the rule is not based upon the assumption that members of Council must have time to discuss the motion. The motion becomes a resolution upon a majority of the members giving their assent in writing. To this extent the application of the rule 1s self-executing. Before the motion becomes a resolution at least eleven assents in writing must have been given and the Secretary must know of that fact. Once that fact has been established, the motion

The requirements of Rule 31(c) are mandatory, but the rule must be construed in a practical way. There is no room for the implication of oblagations not ccntained in the rule. On its face, the rule 1s not contrary to s.140(1) of the Act. Provisions of a similar nature appear in the rules

of many organizations including the Unicn and other branches

of the Union. In practice, a rule of this nature 15

essential. In the present case the real issue arising is

whether the requirements of the rule have been satisfied.

Counsel fer the applicants, in reality, Eid not . dispute the validity of Rule 3l(c). His main concern was directed to whether there had been @ non-compliance with its

requirements. As a last resort, he relied upon the challenus

to the validity of Rule 31l(c) only if the construction

The evidence presented to the Court is contained in a number of affidavits, together with exhibits thereto, oral evidence given by the deponents of sone of the affidavits and some other exhibits. The affidavit by the applicant Eourke, being the affidavit on which the rule nisi was granted, apart from containing formal matters, contained sufficienc material to warrant the granting of the rule nisi and in that event required material to be provided by the respondents. This was done. Mr. Bourke was not cross-examineé on his affidavit. The facts surrounding the dismissal of the ten employees 1S contained in affidavits sworn by twelve of the respondents, namely Mapstone, Linnane, Callaghan, Woods, Morris, Andrew, Ford, Crawford, Williams, O'S3rien, Crossart and Parke. The first nine of those Geponents 'ere

cross~examined, Mapstone, the President, and Caltaghen, "the

Secretary, being cross-examined vicorously and at sc-e length. The Court fands that the witnesses who were cross~examined were honest in giving evidence whicn they ca-'e to the best of their recollections. I accept their evidence. It remains to consider whether, in dasmissing the ten

employees, the members of Council complied with tthe

The November 1982 elections were held in the context of a fiercely fougnt campaagn. A group of

candidates, including a number of the respondents, did no hold office at the time of the election. A group of candidates, including 4 majority of the respondents, formed a ticket in the conduct of the election. This group called

itself the "Better Deal" team and campaigned on a programms of reform within the Branch. Mapstone, Linnane, Callaghan and Woods were members of that team and were elected to the offices of President, Vice-President, Secretary anda Assistant-Secretary respectively. They thus becare ihe officers of the Branch. Following the election, the "Better Deal" team had a clear majority of members and supporters con of the Council. Following the electior, 1t was made clear that the new Council proposed to dismiss most, if not all, of the employees of the Branch. Some of those employees bad been unsuccessful candidates in the election and were opnpoce?

to the "Better Deal" team. I find that those persons were

dismissed, not becaus® they bad been candidates, but because

of a desire by the "Better Deal" tear to reform the Orench structures. The "Better Deal" team was a reforming grou; an? in their zeal following their success at the election, they

wanted to sweep cut the past anc restructure the Pranch ts

provide what they considered a more efficient and better service to members of the Branch. To facilitate this they

wanted to remove former employees they thought might be

hostile to them and who they felt they could not trust to

implement the new processes. Unsuccessful candidates at the election commenced proceedings in the Federal Court seeking an election inquiry into the Branch elections. In those proceedings, undertakings were given by some of the present respondents that no employee would be dismissed until] the inquiry was completed. On Thursday, 10 February 1983 the inguiry was discontinued and the respondents who had given the undertaking were released from their undertaking. Thereupon some members of Council, and in particular the officers, acted with what can be described as unseemly haste to dismiss the ten employees. I use the phrase "unscemiy haste" intentionally, despite an attempt to justify the sveot with which the dismissals were effected, on the basis that the dismissals prevented uncertainty and attemptea to bring to an end a situation which was causing problems in che administration of the affairs of the Branch. Provided the2 procedures were carried out in accordante with the rules,

dismissals. I find that the procedures carried out vere, in fact, planned and carried out by the four officers of the

I do not fana it necessary | to refer in detail to the facts deposed to in the affidavits and in the oral evidence. The relevant facis as found can be stated. On Thus sday, 10 February 1983, Woods told Callaghan that he had proposed a motion which had been seconded by Linnane relating to the dismissal of the ten employees and that he wanted the motion to be submitted to members of Council] pursuant to the provisions of Rule 3l(c). Bt that time Mapstone, who held his office as President in an honorary capacity, was un northern Queensland in the coursé of his normal employrent. Callaghan rang him and told him of the moticn and cf the request. Later that evening Mapstone returned to Brisbsne and attended at the offices of the Branch. On his return to Brisbane, Mapstone was handed a document containing the

"TO: BRANCH PRESJ DENT FROM: ASSISTANT BRANCH S@&CROTARY DATE: FEBRUARY 10 1983

The followina formal motion is submitted toa you in accordance with Branch Rule 31(e¢):-

'That the appointment of Paid Lewis, Patrick Brophy, Gordon McPherson, John Nucifora and Paul Griffiths as Branch Organisers ve terminated forthwith.

And that the appointment of Geoff Purcell and Vince McKenna as Secretary/Orcanisers be terminated forthwith.

And that the appointment of Ted Kowaiski and Graham Treacey as Industrial Officers be terminated forthwith.

And that the appointment !of John Fox be terminated forthwith.'

That document was signed by the mover, but net by the seconder. As said previously, the absence of the sagnature of Linnane does not affect the validity of the motion. The motion was, in fact, moved and seconded as claimad and as appears from the typed inscription. Thereafter, Mapstone handed to Callaghan, the Secretary of the Branch, a doct>rent

In accordance with Branch Rule 31(c), the following formal motion is hereby submitted to you:- MOVED: Cc. WOODS

'That the appointment of David Lewis, Patrick Brophy, Gor@on McPherson, Jolin Wucifora and Paul Griffiths as Branch Organisers oe terminated forthwith.

Vinee McKenna as Secretary/Organisers he terminated forthwith.

And that the appointment of Ted Kowalski and Graham Treacey as Industrial Officers be terminated forthwith.

And that the appointment of John Fox Le terminated forthwith.'

Ballot papers nad been prepared. Each was in an envelope and each envelope was addressed to a memper cf Branch Council. The ballot papers were uncer the letterhead of the Branch and indicated that they had been typed at the direction cf Linnane, the Vice-President. Each contained the

Please be advised that the following formal motion has been moved aud seconded and is now submitted to vou for postal vote of Branch Council in accordance with Rule 31(ca):-

'That the appointment of David Lewis, Patrick Brophy, Gordon McPherson, John Nucifor > and Paul Griffiths as Branch Organisers be terminated forthwith.

And that the appointment of Geoff Purcell and Vince ficKenna as Secretary/Crganisers be terminated forthwith.

And that the appointment cf Ted Kowalski and Graham Treacey ac Industrial Officers he terminated forthwith.

And that the appointment of John Fox be terminated forthwith.'

NOTE: Please return this vote in the stumved addressed envelope provided, to the Branch Secretary by return mail."

There were twenty-one ballot papers and each contained the name of a member of Branch Council. Some of the ballot

papers had the words, "This action tc be taken in accordarce

with Rule 32" anserted as part of the paragraph wrich referred to John Fox. That reference was to the rule authorizing the Branch Council to dismiss emplovees. It was

descriptive only and does not go to the sudstance of the

motion. I find that the words are not capable of causing any

confusion. They do nov constitute a sunstanctaal non-compliance with the requirements of Rule 31(c). They eo not invalidate the ballot.

After receiving the notice from Mapstone, Callaghan handed him his ballot paper on which Mapstore recorded his assent to the motion and placed his signature. He returned that ballot paper to Callaghan. Arrangements were made co hand-deliver the ballot papers on Friday, 11 February to

those members of Council who worked cr resided in Brisbane and in the Rockhampton area, and to post the ballot papers to the other members of Council. Mapstone, who was traveliting to Rockhampton on the morning of Friday, 11 February in the course of his employment, took the ballot papers addressed to Bianchi and to Appleby to hand-deliver them. He took with him also a notice of termination of employment directed to McKenna, a Secretary/Organiser for the Rockhampton sub-Branch. On the evening of 10 February 1983, ballot papers were posted to the applicant Bourke at Toowoomba, to Linsket at Dalby and to Tooley at Gywrpie. On Friday, il February the envelopes containing the ballot papers were delivered to a number of members of Council. Mapstone delivered the ballot papers to Bianchi and Appleby who each

assented .to the motion, signed the ballots and returned than

to Mapstone. In Brishane members of the Council, mainly in pairs, delivered envelopes containing ballots to a numer of

members of Council who, apart from Cossart, assented tc che

motion, signed the ballet papers and returned them to those who had delivered them. The responaent. Eourke was now at work that day but by telephone arranged that the ballot he deiivered to him on the following Morday. This was done. Mr. Muller was on leave and thus his ballot paper could net be delivered to him. The passage of time made it impossible to hand-deliver the ballot papers to Ross and Fawkes. On the

evening of Friday, 1l February the hallot parers were posted

By the afternoon of Friday, 11 February Callaghan, after speaking to Mapstone, knew that thirteen assents in writing had been received, eleven by Callaghan and two by Mapstone. She told Mapstone this, and thereafter Mapstone delivered the notice of termination of employment to McKenna. The notice, written under the ietcerhead of the Branch and

indicating that it had been written at the direction of

The Branch Council of this Union has voted to terminate your appointment as Secretary/ Organiser forthwith.

Enclosed please find a cheque which includes one week's pay 1n lieu of notice.

On the same day notices in similar form ware given to another six of the ten dismissed employees who were at the Branch office. On the same day notices in similar form were given to another two of the ten dismissed employees, while the tenth dismissed employee was told of his dismissal and the formal notice was given to him subsequently. After 11 February 1983, assents an writing were received from tvo other members of Council, while one non-assent was ~eceived.

Ballot papers were not returned by the applicant Bourke or by

Ross, Fawkes, Linsket or Tooley. Thus, in fact there were

votes as opposed to fifteen "yes votes. The ballots which were posted were not received by the Branch Councillors concerned until after action had been taken on

the resolution. In some cases the franking cn the eveloves

suggests that the letters to the applicant Bourse and to

Linsket and Tooley were not posted until 11 February 1983.

It is noted that Mapstone cast a vote. At meetings of Branch Ccuncil, Mapstone, as President, is not entitled to a primary vote. The vote was not taken al a meeting. On the facts of this case I do not need to deciee whether the

applicant is entitled to cast a primarv vote under the

procedures prescribed in Rule 2?1(c), r~t veing sufficient tr say that even without his vote a majority of members of Branch Council had given their assent in writing to the motion before 1t was acted upon. Ie is noted elsa that in the procedures under ~Rule 31(c) there is no provision for a casting vote in the event of voting being eaual, "tre requirement being that the motion becomes a resolution upon a

majority of members of the Branch Counci] giving tueir assent

Finally, 1t shovld he noted that in addition to a week's pay in lieu of notice, each of the disrissed cmplovees

received the maximum amount of benefit which could be paul under the superannuation fund conditicns applicable to trem. Those payments ranged from $26,062 with respect to ar employee who had been employed for ten years, to a minimaur of $1,566 with respect to an employee who had been employed for

seven months. An employee who had been employed for just

The respondents' case was stated very simply. Mr. Moynihan, Q.C. contended that the Branch Council, in the exercise of its powers of managerent of the Branch and in particular in the exercise of the power conferred by Rule 32 to dismiss from office any employee, had the normal right oF an employer to dismiss a weekly employee by giving a ver.'s

notice or payaent of a week's wace in lieu of novice. Ee

contended that there was no necassity in law to give a ree

for tne dismissal. He conten that each of the ten dismissed employees was cmployed on a weekly basis, each had been given a week's wace in lieu cf notice and that the

resolution to dismiss those employees had been pasecd in

compliance with the provisions prescribed by Rule 31(c).

Counsel for the applicants disputed those contentions. They contended that the Branch Council did not have an absolute right to dismiss the employees, and in particular that the employees were entitled to »e given notice of the reason for proposed dismissal and were entitled to be heard in their defence before being dtsmissec. They contended that each employee was thus entitled to natural justice: and that this right' arose upon the proper construction of the rules, the nature and importance of the duties performed by the employees, their membership of the Union, and a subsequent publication in the Branch newspaper of the circumstances of and the grounds for their dismasesl. This last point 1s based upon material which avocared in the Branch newsletter subsequent to the dismissals. That material cannot affect the validity of the dismissals, excerpt possibly with respect to the issue of bona fides whach 1s consideret

Secondly, counsel contended that a motion for dismissal of employees should not be adopted under the procedures prescribed in Rule 31(c) since those procederes were inapt where Lhe yrounds of dismissal were misconducl. This contention 1s rejyected. The dismissa]s were noc because of misconduct and thus this contention is based upon a false

Thardiy, counsel contended that the procedures prescribed by Rule 31(c) had not been followed, and in particular that there was no motion maved and seconded; that the motion was not submitted to all members of Council; that the motion was not identical in all cases (this particular contention has been rejected earlier in these reasons); that the motion was submitted by diverse procedures and by persons at diverse times, and in particular the circumstances that the submission of the motions had been made in many cases by two members, thereby unfairly interferang with the freedom of choice by the person to whom the motion was delivered; that the vote was taken after the dismissals haa heen effected, and in particular the dismissals had been effected w»efore Mapstone had returned from Rockhampton with the assents in writing of the two members of Council which had been handed to him; and that no vote could be taken unt)1 all members of Council had had a reasonable opportunity to vote by, at least, receiving the ballot paper. These last two matters

have 'seen rejected earlier in these reasons. [ven azssunincg

all ballot papers had been posted at the one time, tkere is no certainty that, having regard to the distances involved, all ballots would have been received before a majority of

Fourthly, counsel contended that some of the respondents, and in particular Mapstone, Linnane, Callaghan, Woods and Crawford {being the four officers of the Branch an@

the persons who had assisted in the delivery of the ballots),

Fifthly, counsel contendsd that Rule 31(c) was contrary to sub-section 140(1) of the Act if it was to be construed in the way which the Court has construed it.

Despite the strong and able arguments of counsel, the Court finds that a dismissal unijer Rule 32 does not import the rules of natural justice before the Council is able, validly, to dismiss an employee. It has been said earlier in these reasons that the employees vere not elected officers and thus given no protection against dismissal from office by the provisions of the Act. Their duties may have been important and onerous, but that is not sufficient to import the rules of natural justice. This 18 a case where

the normal terms of a@ contract of employment arply. It is

not necessary to determine who in law 1s the actual employer

of the enmplovees. The Branch Council, uniler the rules, has powers of management including the power of dismissal of employees. Those powers can be exercised with resnect to persons who have been employed pursuant to decisions taken by the Branch Council. The power of disiaissal is a power common to all employers, a power which, in the present case, is to be exercised by the Branch Council. In Rule 32 the word "office" is to be read as "pesicion". The fact that Rules 46

and 47 make ceference to two specific positions not bein

offices within the meaning of the Act, does not confer upon persons occupying those positions (whether those persons be members of the Union or not) an entitlement to natural justice before jpeing dismissed from their positions under Rule 32. This is not a case where the Branch Executive has taken action in circumstances where the employee has a right of appeal to the Branch Council. The appeal procedures referred to in Rule 32 are not sufficient to amply a requirement for natural justice before a dismissal can he made by the Branch Council. There 1s nothing in the rules generally which amports such a recuirement. The Branch Council had not tried to conceal ats intention to dism3s

employees. Indeed, much of the election campaian by members of the "Better Deal" team suggested there could be dismissals of persons employed in the Branch. The reasons for Gismissal are irrelevant for present purposes. There was no charade of

misconduct made, nor was it necessary that there be a charge

of misconduct. Under the rules of the 3ranch no reason new

be given for disnissal. The Court is not concerned? ta

consider the merits of the dismissal. That is a matter of

discretion to be exercised by the Branch Council and the Court should not, and does not, express ovinicns on matters of discretion of that kind. The first sroup of contentions

The third group of contentions raises the issue of whether the procedures prescribed by Rule 31(c) were followed. Many of the matters relied upon in support of those contentions have been considered earlier in these

reasons. Rule 3l1(c) prescribes procedures to be folloed.

Those procedures are not to be applied as if they were the equivalent of a meeting. In fact the procedures are the very antithesis of a meeting being conducted. A majority of members of the Branch Council had given their assent in writing to the motion and Callaghan knew of the existence of a majority of assents. The motion thus became a resolution and was acted upon. No person to whom a bellot paper was delivered by hand has claimed that any person, or the perscen who delivered the ballot paper, nad attempted to influence him to assent to the motion. On the facts found in this case the Court holds that the procedures prescribed by Rule 31(c)

were followed and that there was no non-covpliance with those

requirements. he thard group of contentions is rejected.

The fourth group of contentions is based upon the principle that in exercising powers conferred by tne rules, officers are required to act bona fide for the purpose for which those powers were conferred; see for example Allen v. Townsend (1977) 31 F.L-R. 431 per Evatt and Northrop Jd. at pp-483-9. In the present case none of the evidence supports

the contention that there has been a breach of that

principle. The fourth group of contentions 1s rejected.

Under the fifth contention the Court does not consider it necessary to restate the wellknown prainciptcs applicable in deciding issues arising where it is alleged a rule contravenes paragraph 140(1)(c) of the Act. It is sufficient to say that there 1s no merit in the contention made. In substance, what has happened here is that che members of the Branch, by an election, have elected a reform group to office in the Branch. The polacy of the reform group was to change the administration. In giving effect to that policy the Branch Council has followed the procedure laid down in Rule 3l(c). That part of Rule 31 is an enabling provision. It enables resolutions to be made apart from meetings and is a provision common in rules of organizations and has much merit to support it. In truth, and despite the Genials of counsel, the applicants are attempting toe again greater security of employment than that which accrues to

elected officers. The fifth contention is rejected.

» Having found that the resolution dismicsing tee ocr

employees wes valid, jt becomcs unnecessary to consider ~e

At a glance

Court

Decision date

Before

Source

Judgment (201 paragraphs)