Cooper v Metcher

The meaning and effect of the 2004 resolution 21 There was no extrinsic evidence tendered which cast any light upon the objective purpose, or the mischief or concern, of the National Council in making the 2004 resolution. 22 It must have been known to the members of the National Council that officials of the CEPU may, and that it was likely that in the future officials of the CEPU might, earn remuneration from sources beyond the CEPU including as a member of a board or as a consultant. So much is clear from the terms of the 2004 resolution. 23 It is also clear that whatever the nature and extent of the National Council's concern in making the 2004 resolution, it was limited to additional remuneration received by paid officials of the CEPU as distinct from those holding an office in the CEPU in an honorary capacity. Again, so much is clear from the terms of the resolution. 24 It should be presumed, and no party contended to the contrary, that in making the 2004 resolution, the National Council was genuinely concerned to protect the legitimate interests of the CEPU. What particular interest or interests the National Council had in mind is at the heart of the contest raised by this application. 25 As a matter of financial probity, it may be accepted that (like any employer) the CEPU had a legitimate interest in recouping any monies received by its officials which it could legitimately claim as its own. If an official of the CEPU receives monies for a service rendered to another entity by that official as a paid agent of the CEPU, the CEPU is well entitled to regard the monies received as its money rather than a windfall payment which the official is entitled to keep. It can readily be appreciated then, and no party contended to the contrary, that the National Council would likely have held a concern to address a situation where its paid officials received payment from another person for the performance of a function performed in the paid service of the CEPU. 26 Whilst both Cooper and the intervener accepted that the concern or the mischief addressed by the 2004 resolution included the financial probity issue I have just identified, they each contended that the resolution was broader in scope. The intervener submitted that the 2004 resolution extended "a bit more broadly", although it is not clear to me that the intervener's approach actually has that effect. The initial submission made by the intervener was that the resolution extended to any additional remuneration received by an official by virtue or by reason of the official holding office in the CEPU. However, the intervener later explained that on its construction, the performance of the additional role by the official had to be part of the role or job of the official as a paid official before the additional remuneration earned was caught by the resolution. 27 Cooper's contention went much further. As I have already stated, Cooper contended that the scope of the resolution extended to additional remuneration earned from a position obtained because the official held office in the CEPU and also where a perception existed that the position was obtained for that reason. That contention was based upon the following submission as to the resolution's purpose: The evident purpose of the resolution, which is binding on the Respondent, is to ensure that CEPU officials, who are paid by the CEPU, and also receive remuneration from other sources, remit that money to the CEPU or one of its divisions or branches. This serves the purpose of ensuring that such officials are not compromised, or perceived to have been compromised in performing their roles qua the CEPU by reason of the receipt of that additional remuneration. The CEPU has a legitimate interest in preventing a situation whereby its paid officials avoid possible breaches of fiduciary and/employment obligations or perceptions of obtaining a benefit by reason of holding an office within the CEPU. 28 Metcher contended that the 2004 resolution was directed at remuneration received by officers of the CEPU which was paid to such an officer in his or her capacity as an officer of the CEPU or, alternatively, to someone doing work on behalf of the CEPU for a third party. Metcher accepted that remuneration from a non-CEPU source flowing from work performed by the official in the performance of that officer's duties or responsibilities was encompassed by the resolution. Metcher contended that additional remuneration received by an official in those circumstances was a matter in which the CEPU had a legitimate interest and in which it might justly and reasonably require the payment of the additional remuneration to it. Metcher rejected the proposition that a purpose of the resolution had anything to do with issues of actual or perceived conflicts of interest. Metcher's submissions suggested that the relevant purpose of the resolution was to ensure that the benefit of holding office in the CEPU and performing the duties of an officer of the CEPU should be reflected in the remuneration paid to an officer by the CEPU and not otherwise. 29 All parties agreed that the 2004 resolution ought to be construed in a practical and common sense fashion accepting that it was not drafted by lawyers and that a meaning which avoids inconvenience or injustice may reasonably be strained for: Australian Workers' Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191 at [75] (Katzmann J, with whom McKerracher J agreed at [34]); Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J). Additionally, a meaning which leads to the validity of the resolution rather than its invalidity should be preferred if such a meaning is available. In that respect, there are two sources of potential invalidity which should be kept in mind. First, the National Council's power to make the resolution was potentially constrained by the terms of Rule 7.1 and the divisional autonomy conditions there set out. Secondly, a wide construction of the 2004 resolution and thus a wide construction of the rule making power in Rule 7.1.1 may offend the requirement in s 142(1)(c) of the FW(RO) Act, which requires that the Rules not impose on members conditions, obligations or restrictions that are oppressive, unreasonable or unjust. 30 I accept that it is possible that, as a result of its officials receiving additional remuneration from a secondary source, a union may well have wider concerns than the financial probity concern I have identified at [25]. Such concerns could include a desire to avoid officials of the union involving themselves in activities outside of the union which give rise to an actual or perceived conflict of interest. That would include a concern to avoid a perception being formed by the union's members or by the general public, that the officials of the union are privately profiting because they hold office in the union. Whilst I acknowledge that concerns of that kind may well motivate a union to make resolutions which restrict or otherwise serve to control the activities of its officials, I am not persuaded that the 2004 resolution was motivated by such considerations. 31 There are a number of indications in the terms of the resolution that favour the view that the resolution was only directed at monies received by paid officials of the CEPU for the performance of work at the behest of and in the service of the CEPU. First, as all parties accepted, the resolution does not cover all officials; it is confined to monies received by paid officials of the CEPU. Secondly, the resolution requires that the monies received be paid "into the relevant Branch, Divisional Office or National office operating account". That suggests that it was recognised by the framers that as between different organisational units within the CEPU, one unit was likely to have a greater claim to the monies than any other unit. Thirdly, the resolution designates the monies so received as monies which should "be considered [as] revenue of the CEPU". 32 Those indications, and in particular the third, very strongly suggest that the National Council saw itself as addressing monies in the hands of CEPU officials that it regarded to be monies or revenue belonging to a particular unit of the CEPU which the CEPU had a right to appropriate. It is highly unlikely that monies received by an official of the CEPU which were earned by that person in a private or personal capacity or, in other words, not in the performance of the work that the person was being paid by the CEPU to do, was an intended target of the 2004 resolution. There is no apparent basis for thinking that the framers of the 2004 resolution would have regarded monies of that kind to be "revenue of the CEPU". Nor, in relation to monies earned in a private capacity by a person who happens to be an official, is there any basis for thinking that the framers of the resolution would have considered that the CEPU had a legitimate basis to appropriate those monies. 33 All of those considerations support the resolution being read as applying to monies from non-CEPU sources received by paid officials of the CEPU in the performance of their duties or responsibilities as officials of the CEPU. In other words, the 2004 resolution applied to monies received by paid officials for work performed for a third party at the instance of and in the service of the CEPU. The resolution required that monies received in those circumstances be paid to the CEPU and specifically, to that unit which had the greatest claim to it. Presumably that unit will have been the unit that paid the salary of the official concerned when the official performed the work which resulted in the additional remuneration being earned. 34 If the National Council had been concerned about its officials becoming involved in activities which gave rise to an actual or perceived conflict between the interests being pursued by the official and the interests of the CEPU, it is likely that the 2004 resolution would have addressed all officials and not simply paid officials. The same can be said in relation to the concern about an official profiting or being perceived to profit from holding office in the CEPU. Honorary officials of the CEPU hold positions of significant responsibility and it is not apparent why they would have been exempted, if the National Council intended to address these concerns. 35 It is also likely that such concerns would have been properly defined and spelt out expressly. There are far more efficacious ways in which such concerns could have been reasonably addressed. Actual or perceived conflicts of interest including perceptions that an officer has profited from the holding of an office may arise out of activities engaged in by officials for which no payment is received. Inducements provided to an official may not be monetary. Further still, the imposition of a financial deterrent based on the amount received by the official may be inadequate as a deterrent. Alternatively, a financial sanction of that kind may be completely unreasonable given the nature of the conflict of interest and particularly so where the conflict is not actual but merely a matter of perception. 36 If the 2004 resolution had the scope for which Cooper contended, it would be so uncertain in its application as to be unworkable in all but the clearest of circumstances. Other than where an appointment is expressed to have been made because the person held office in the CEPU, whether a remunerative position held outside of the CEPU was held because of the person holding office in the CEPU is a question which would require an evaluative judgment as to what motivated the person or body of persons who made the appointment and whether the holding of the office was the substantial or dominant reason, amongst potentially many reasons. Who would make that judgment? How would such a judgment be made? Once that exercise moves into the realm of perceptions, the potential for uncertainty is multiplied. Whose perception is to be evaluated? What if a perception which existed on appointment is immediately addressed and negated? Is the official (who has earned remuneration in his or her private capacity) to pay to the CEPU monies earned over the whole period of the appointment? What possible justification could the CEPU have to appropriate the money of its officeholders in that or like circumstances? 37 It is difficult to accept that if the framers of the resolution had in mind the kind of concerns relied upon by Cooper, they would not have chosen a more certain and more appropriate mechanism for addressing them. It should not be assumed that the National Council intended to inflict upon its paid officials restrictions so uncertain in their application as to be largely unworkable and so obviously capable of imposing oppressive, unreasonable or unjust results as to engage the prohibition spelt out by s 142(1)(c) of the FW(RO) Act. 38 It was not contended by either Cooper or the intervener that Metcher was in the service of the CEPU in his role as a director of PostSuper. Cooper specifically disavowed the suggestion that Metcher had performed his role as a director of PostSuper as part of his job as an official of the CEPU. It follows that on the construction of the 2004 resolution which I prefer, Cooper's application must be rejected.

Did Cooper establish a case based upon his construction of the 2004 resolution? 39 If I had accepted Cooper's construction that the 2004 resolution applied to additional remuneration received from a position held because the official held a paid office in the CEPU, I would nevertheless not have been satisfied, on the evidence, that Metcher failed to abide by the 2004 resolution. 40 Cooper contended that correspondence exchanged between Metcher and the CEPU, and the CEPU and the ACTU, in relation to Metcher's nominations as a director of PostSuper supported a conclusion that Metcher obtained and maintained his appointment as a director of PostSuper because he was a CEPU official. The first document relied upon was a letter of 20 July 1999 in which Metcher wrote to Brian Baulk (Baulk), the then Divisional Secretary of the Communications Division. In that letter, Metcher referred to what he called the expected vacancy on the Board of PostSuper of the retirement of John Minnis (Minnis). Metcher asked to be considered as the CEPU's nominee to fill that vacancy when it occured. Cooper contended that in the correspondence, Metcher presented himself as being suitable for the position of director by reason of his experience and occupation as an officer of the CEPU. 41 Cooper then relied on a letter from Baulk to Bill Mansfield, the then Assistant Secretary of the ACTU. The letter was short. It simply referred to an earlier telephone conversation and said: Please be advised CEPU wishes to nominate Mr. Jim Metcher to the vacant position on the Australia Post Superannuation Board. 42 Metcher was thereafter appointed as a member representative director of PostSuper in October 1999. 43 He was first reappointed in October 2002. Cooper relied on a letter dated 7 October 2002 from Baulk to Greg Combet (Combet), the then Secretary of the ACTU. In that letter, Baulk pointed out that there were three member representatives on the APSS and that the three positions were to be appointed by each of the CEPU, CPSU and ACTU. Baulk then said: I should point out that the CEPU is recognised as the holder of and indeed has always held the ACTU position. The current incumbent is Mr. Jim Metcher from our New South Wales branch. 44 Cooper then relied upon Combet's response to Baulk in a letter dated 10 October 2002. The letter was also short and said: I am writing to confirm the ACTU's agreement to nominate Jim Metcher for a further three year term as the ACTU's nominated member representative on the Australia Post Superannuation Scheme. 45 In mid-October 2002, Metcher was reappointed for a further three year term. 46 In relation to Metcher's third appointment, Cooper referred to and relied upon a letter from Combet to the company secretary of PostSuper dated 12 October 2005. In that letter, Combet stated: The ACTU is happy to renominate Mr Jim Metcher for a further term as Director of PostSuper. 47 In relation to Metcher's fourth nomination, Cooper relied on a letter dated 23 October 2008 from Ed Husic (Husic), who then held the position of Divisional Secretary of the Communications Division. Husic wrote to Jeff Lawrence, the then Secretary of the ACTU. The letter stated: I understand that you have recently received correspondence from the Australia Post Superannuation Scheme (APSS) requesting the re-nomination of an ACTU representative to the Trustee Board. The ACTU is currently represented by a senior official of the CEPU Communications Division, NSW Postal and Telecommunications Branch Secretary Jim Metcher. Any review of his performance on the board will demonstrate a vigorous and diligent advocacy on behalf of union and employee members of the APSS. The CEPU strongly supports Mr Metcher's re-nomination as the ACTU representative and we would hope that this re-nomination be confirmed as quickly as possible to ensure his continued participation in Trustee affairs. 48 Cooper relied on the second paragraph and its reference to Metcher being a senior official of the CEPU. 49 Cooper contended that the evidence established that whilst the ACTU had the right to nominate its representative to the Board, the ACTU acted on the basis of the CEPU's recommendation as to who should be nominated for that position. There is no evidence of any agreement between the ACTU and the CEPU which could establish that the ACTU was legally bound to exercise its nomination power in accordance with the CEPU's direction. However, the evidence shows that as a matter of practice, the ACTU looked to the CEPU to make a recommendation and adopted that recommendation once made. I do not accept that the ACTU did not have a capacity to reject any recommendation of the CEPU. I do accept that a loose arrangement existed between the ACTU and the CEPU to the effect that in the ordinary course, the person recommended by the CEPU would be nominated by the ACTU. 50 Cooper contended that in the context of the ACTU accepting the recommendations of the CEPU to nominate Metcher, it may be concluded that Metcher obtained and maintained his position as a director of PostSuper because the CEPU's recommendations to the ACTU (or at least a number of them) were "conditioned by Mr Metcher holding office in the CEPU". 51 As I understand that submission, Cooper contended by reference to his construction of the 2004 resolution that the requisite causal link between Metcher holding an office in the CEPU and Metcher being (in each case) appointed to PostSuper was satisfied because the recommendation made by the CEPU that Metcher be nominated was made because Metcher held a paid office in the CEPU. 52 I accept that the evidence clearly established that Metcher's appointments to PostSuper were dependent upon the support of the CEPU. But for the support of the CEPU, it is unlikely that Metcher would have been appointed or reappointed. However, the references to Metcher's office in the CEPU in the correspondence upon which Cooper relies do not sustain a finding that, but for Metcher holding an office in the CEPU, Metcher would not have been supported by the CEPU. 53 The references in the correspondence are both scant and in the nature of passing observations. Insofar as reference to Metcher's office was made, it was likely made to identify Metcher's connection with the CEPU. Those references do not establish that the making of the recommendation was dependent upon Metcher's connection with the CEPU, let alone dependent upon the specific kind of connection which Cooper relies upon - the holding of a paid office in the CEPU. 54 Cooper did not call any evidence which identified with any certainty who, within the CEPU, had decided to recommend Metcher for the appointments. There was certainly no direct evidence as to what motivated those persons in making those recommendations. 55 Whilst it may be open to infer that Metcher's connection with the CEPU was likely to have been a reason for the recommendations made that he be appointed, the evidence fell well short of establishing that the recommendations to nominate Metcher occurred because he held a paid office in the CEPU. 56 I should add that the nature of the position of director of PostSuper does not of itself suggest that the CEPU would likely not have recommended for appointment anyone other than a paid officer of the CEPU. Even if it be assumed that the CEPU desired to see appointed into such a position a person who was known to it and generally supportive of its views and its interests, the categories of persons who would likely be regarded as meeting that criteria are not confined to paid officials. Other categories of persons, such as honorary officials, former officials, members or employees of the union are also likely to include suitable individuals. The evidence suggests that to be the case. Minnis was Metcher's immediate predecessor as the ACTU's nominated representative on the Board of PostSuper. The evidence did not establish that either Minnis or any earlier predecessor appointee nominated by the ACTU was an officer of the CEPU. To the contrary, the evidence suggested that Minnis had not been a CEPU official at least at or proximate to the time of Metcher taking over from him. When asked about Minnis, Metcher did not identify Minnis as a CEPU official nor as a person whose connection with the CEPU was known to him. Metcher did not know, but he thought that Minnis was a member of the CEPU and a former officer of a union which had amalgamated with the CEPU in the early 1990's. 57 The second aspect of Cooper's construction of the 2004 resolution was that the resolution covered any remuneration earned from a position which would be perceived to have been obtained by the official because the official held an office in the CEPU. I am not satisfied that Cooper established a case based upon that construction. 58 Cooper's submissions barely addressed that contention. There was a broad assertion made that as the APSS was an industry superannuation fund which covered persons whose industrial interests the CEPU had responsibility for, there would be a perception that Metcher was a director of PostSuper because he held office in the CEPU. 59 Beyond that bare assertion, Cooper's case on this point was left largely undeveloped. Which category or class of persons needed to hold and in fact did hold such a perception was not identified. That the perception had to be reasonably held was suggested by Cooper's submission, but no submission was made as to why that was so in this case. The extent to which the reasonable observer within the relevant class should be instilled with knowledge of the facts was not explored. For instance, would such a person know that Metcher was the ACTU's nominated representative and not the nominated representative of the CEPU? If that knowledge was attributed to the reasonable observer, would such a person perceive Metcher's appointment to be because of his office in the CEPU? 60 These and other relevant questions were neither explored nor developed to a level sufficient for me to begin to evaluate whether the case asserted was established on the evidence. Nor was the Court directed to any available evidence which supported the asserted case. In those circumstances, even if I had accepted the second aspect of the construction of the 2004 resolution for which Cooper contended, I would not have been satisfied that a case was made out in respect to it.

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Judgment (6 paragraphs)

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