Australian Federation of Air Pilots (C No. 20178 of 1994)

Air pilots Airline operations

SENIOR DEPUTY PRESIDENT MACBEAN DEPUTY PRESIDENT WILLIAMS

COMMISSIONER FOGGO DARWIN, 17 JUNE 1994

Industrial dispute - dispute finding - revocation

• appeal - whether logs of claims were properly authorised pursuant to union rules - meaning of "meeting" considered - poll of members opinion did not constitute a meeting - log not properly authorised - appeal upheld - finding quashed.

This decision concerns three appeals heard concurrently against two decisions [Prints L1358 and L1384] of Commissioner Palmer arising out of notifications of the existence of alleged industrial disputes between the Australian Federation of Air Pilots (AFAP) on the one hand and Independent Air Freighter Pty Ltd (IAF), Skywest Airlines Pty Ltd and Skywest Aviation Pty Ltd (Skywest) on the other.

The chronology of events leading to those decisions was as follows:

. On 19 July 1993, a telephone poll was conducted of most but not all members of the Executive Committee of AFAP regarding the service of logs of claims upon IAF and Skywest. That poll purported to carry a resolution of the Executive Committee authorising the President to serve logs of claims upon Skywest and IAF. . On 19 July 1993, AFAP served a letter of demand and log of claims on Skywest.

. On 20 July 1993, AFAP served a letter of demand and log of claims on IAF.

. On 30 July 1993, AFAP notified the Commission of the existence of

alleged industrial disputes between it and IAF (the IAF matter) [C No. 31482 of 1993] and it and Skywest (the Skywest matter) [C No. 31483 of 1993].

. On 11 August 1993, in proceedings before Commissioner Palmer in the

IAF matter, the Commissioner indicated that he would make a finding of dispute between AFAP and IAF.

. On 19 August 1993, in proceedings before Commissioner Palmer in the Skywest matter, Skywest indicated that, amongst other things, it wished to raise the question of authorisation of the log and its service [C No. 31483 of 1993 - Transcript - 19 August 1993 - p.8]

. On 26 August 1993, Commissioner Palmer issued his decision [Print

K8937] and finding of dispute in the IAF matter. That decision, which is not the subject of any of these appeals, did not deal with the questions of authorisation of the relevant log or its service.

. On 2 October 1993, the Executive Committee of AFAP, at a meeting, carried a resolution adopting the minutes of the telephone poll

. On 4 October 1993, at a hearing before Commissioner Palmer, IAF

indicated that it wished to seek the revocation of the finding of dispute in the IAF matter.

. On 12 October 1993 and 9 November 1993, without formally joining the two matters, Commissioner Palmer heard evidence and submissions

relating to IAF's application for revocation of the finding of dispute and Skywest's contention that no finding of dispute should be made in the Skywest matter. At those hearings, counsel was granted leave to intervene on behalf of some three pilots employed by IAF and was heard on an application to revoke the finding of

. On 24 January 1994, Commissioner Palmer issued a decision

[Print L1384] rejecting IAF's application to revoke the finding of dispute in the IAF matter and a decision [Print L1358] and finding of dispute in the Skywest matter.

It is these two decisions which are the subject of the appeals before the Commission. The two decisions must be read together and in conjunction with the earlier decision [Print K8937] of 26 August 1993 in the IAF matter. The IAF decision relies on the reasons expressed in the Skywest decision and on the

reasons expressed in that earlier decision. The IAF decision has been appealed by IAF and by seven pilots employed by IAF. The Skywest decision has been appealed by Skywest. At the hearing of the appeals, Mr G. Giudice of counsel appeared for IAF, Mr J. Pearce of counsel appeared for the individual appellants and was granted leave to intervene for Mr B. Bell who was said to be the only other pilot employed by IAF, Mr F. Parry of counsel appeared for Skywest and Mr L. Cox appeared for AFAP.

Although a number of matters were raised by counsel for the appellants, the essential point raised for determination in these appeals is whether the logs of claims and their service were properly authorised pursuant to the rules of AFAP. Although the raising of a question of the Commission's jurisdiction does not of itself justify the granting of leave to appeal, we consider that, in this case, that question is raised in such a serious way that the appeals fall within that class of cases in which it is appropriate to grant such leave and we do so.

Neither before Commissioner Palmer nor before this Full Bench was it contended that there might be a dispute of the type described in The Queen v. Turbet; Ex parte The Australian Building Construction Employees and Building Labourers' Federation [(1980) [1980] HCA 47; 144 CLR 335]. There neither has been nor is any suggestion that the alleged disputes existed other than as "paper disputes", i.e., disputes created solely by the service and rejection of the letters of demand and logs of claims. It seems clear that, if there was no proper authorisation of the logs and their service under the rules of AFAP, their service and rejection cannot therefore give rise to an industrial dispute [R v. Blakely and others; Ex parte the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54; R v. Heagney and another; Ex parte A.C.T. Employers Federation and others (1975 - [1976] HCA 32; 1976) 137 CLR 86;93 (per Barwick CJ); Re State Public Services Federation; Ex parte Attorney-General (WA) [1993] HCA 30; (1992-1993) 178 CLR 249,268; [1993] HCA 30; (1992-1993) 113 ALR 385, 388; [1993] HCA 30; (1993) 67 ALJR 577, 580 (per Mason CJ, Deane and Gaudron JJ)].

Commissioner Palmer deals with this aspect of the matters in his decision [Print L1358] relating to Skywest where he states:

". I am of the view that the action of the President of the AFAP and

the members of its Executive Committee, no matter how poorly executed, constitute a decision by the Executive Committee consistent with its power and authority to control the general management and business affairs of the organisation.

. In circumstances like this, rules of organisations should be construed generously in order to allow effective and responsible management - in this case no member of the Executive Committee or

indeed of the Federation as a whole raises any complaint with what has been done.

. It is still open to AFAP either of their own volition or at the behest of the Commission to follow the formal steps advocate by

Mr Parry in ratifying their decision in a more formal way; but with the same outcome assumed, the Commission must ask `where is the public interest' in directing such a course of action." We have no difficulties with the sentiments expressed by Commissioner Palmer in those paragraphs. Indeed they are, in general, commendable. There is no doubt that, in certain circumstances, rules of organisations should be interpreted generously [see Shaw J.W., "Interpreting Trade Union Constitution

Rules", 62 ALJ 690]. There is equally no doubt that the unnecessary imposition of technicalities and legalisms upon the Australian industrial relations

However, these sentiments do not overcome the requirement that an organisation may only conduct itself in accordance with its rules. The good intentions of the decision makers are not enough. If the rules of an organisation specify the manner in which logs of claims and their service on behalf of the organisation are to be authorised, those rules must be complied with for the service of the logs and their rejection to constitute an industrial dispute for the purposes of the Industrial Relations Act 1988 (the Act).

Nor does it matter that an action or decision taken by a decision making body within an organisation has not been the subject of any subsequent complaint or objection from any member of that decision making body or of that organisation. A failure to complain or a delay in complaining may constitute grounds for the Industrial Relations Court refusing to exercise its discretion to exercise its powers under s.209 of the Act to give directions for the performance or observance of any of an organisation's rules but such inaction does not amount to a waiver on the part of either the members of the decision making body or the members of the organisation of the obligation on a decision making body to comply with the rules of the organisation.

The importance of there being a valid basis for any award of the Commission is highlighted by the decision in O'Toole v. Charles David Proprietary Limited [(1990) 171 CLR 232]. It is fundamental that the jurisdictional basis for any possible award be established. That basis is the existence in fact of an industrial dispute. Where it is alleged that such a dispute exists solely as the result of the service and rejection of a log of claims, such log and service must be authorised pursuant to the rules of the organisation or organisations concerned.

We are of the view that, although Commissioner Palmer appears to have adopted a practical and non-technical approach to the question of authorisation, the principles applied by him were incorrect and it is therefore open to us to consider whether there was in fact authorisation of the logs in question and their service.

Rule 6.2(a) of the AFAP's rules provides:

"The Executive Committee shall have the power and authority to control the general management and business affairs of the Federation subject to the provisions of the Rules."

It was not suggested that the "general management and business affairs of the Federation" did not encompass approving and serving of logs of claims nor that the Executive Committee was not, in the circumstances, empowered under that rule to approve these logs of claims and their service. What was and is contended for by the appellants is that the Executive Committee did not comply with the decision making process prescribed for it by the rules.

Rule 6.3 provides as follows:

(a) Meetings of the Executive Committee may be called at any time by the President. (b) On the request of any three Members of the Executive

Committee, where not more than one of the aforesaid members is a representative of the Branch/Council calling the meeting, the President shall convene a Special Meeting of the Executive Committee.

(c) Notice of such meetings shall be given by the President to Members of the Executive Committee as far in advance as possible and shall be a minimum of twenty-four hours. Such notice shall indicate the nature of any special business to be discussed.

(d) Special Executive Committee meetings may be held, if required, using a teleconference facility or telephone link-up system."

The evidence both before Commissioner Palmer and this Full Bench discloses that the decision making process followed on this occasion was a poll of most of the members of the Executive Committee conducted by way of the telephone. In no way can this be described as a "meeting" within the meaning of that word as it is used in rule 6.3. In ordinary usage, the word means a coming together of more than one person, [Sharp v. Dawes (1876) 2 Q.B. 26, 29], i.e. where the persons are present in the flesh, and we can comprehend no reason for giving it any other meaning in relation to the way the word is generally used in rule 6.3. It is, of course, possible for an organisation's rules to provide for a "meeting" to be held otherwise than by the physical coming together of the persons who would ordinarily constitute the "meeting". But, unless the rules provide for some other method of "meeting", then the ordinary meaning of the word must prevail.

Rule 6.3(d) does in fact provide for other methods of holding a "meeting" of the Executive Committee, namely by way of "teleconference" or by way of "telephone link-up system". But the conducting of a poll of members of a committee is no more than that and does not in our view constitute either a teleconference or a telephone link-up. Both the latter methods of holding a meeting involve the members simultaneously participating in the conduct of the meeting and the conduct of a poll in the manner disclosed by the evidence does

It follows, in our view, that the "resolution" of 19 July 1993 was not a resolution of the Executive Committee and that the logs of claims and their service were not therefore properly authorised under the rules of AFAP.

Nor do we consider that the resolution of the Executive Committee of 2 October 1993 adopting the minutes of the telephone poll constituted a ratification of the logs and their service in the manner that has been suggested by the Commission in other matters [see FEDFA and others and

F. G. Araldi Earthmoving and others (1992) 12 CAR 287; 49 IR 29; Print K5885]. It does no more than confirm that the record of what took place on 19 July 1993 is a true and accurate record.

Finally we do not accept that Rule 24, which entitles the President to "empower such persons as he so decides to submit any industrial dispute to the" Commission, would enable the President to authorise the logs and their service. The President's power under this rule only arises once a dispute is in existence or at least is alleged to be in existence and in this case, as stated above, the only disputes alleged to be in existence are the ones said to be created by the service and rejection of the logs of claims. It is regrettable that matters such as these fall to be decided upon legalities and technicalities but it is equally regrettable that AFAP, once the authorisation of the logs and their service was questioned, does not appear to have attempted to take such steps as may have been available to it to seek to ratify the actions of 19 July 1993.

In view of the conclusions we have reached, we do not consider it necessary that we deal with the other grounds advanced in support of the appeals. We uphold the appeals and order:

. that the finding of dispute made on 26 August 1993 in matter C No. 31482 of 1993 be and is hereby revoked; and

.
that the finding of dispute made on 24 January 1994 in matter C No. 31483 of 1993 be quashed.

F. Parry for Skywest Airlines Pty Ltd and Skywest Aviation Pty Ltd.

J. Pearce for L. Vallender, P. Gill, D. Sprague, T Fogarty, D. Fitzgerald, A.Lea, and C. Angelides and for B. Bell (intervening).

L. Cox for the Australian Federation of Air Pilots.