LESLEY ANDREE SQUIRES, VIRGINIA McDOWELL and HELEN MONCKTON v LYNE PIKE, JOAN WURST, BELLE SUNNER, S. BROAD, S. BUSSELL,

Federal Court of Australia|1980-10-09|Before: Fox J

Industrial Organisation - Change of Rules - No Transitional Provision Affecting Branch Councils - Validity of Resolutions of Incoming Council - Attempts to Validate - Purported Removal of Some Members of

Conciliation and Arbitration Act, 1904, ss. 171B, 171C, 171D

LESLEY ANDREE SQUIRES, VIRGINIA McDOWELL and HELEN MONCKTON v LYNE PIKE, JOAN WURST, BELLE SUNNER, S. BROAD, S. BUSSELL, A. BURKE, H. COOKE, B. COOPER, S. HALL, X. HEALY, D. JENKINS, P. RYAN, J. MCDONALD, G. McLAREN, D. RENNISON, J. STREET,

J. WATTS, R. WILLIAMS, A. OEDING and THE AIRLINE HOSTESSES' ASSOCIATION

IN THE MATTER of the Conciliation and Arbitration Act, 1904

LYNE PIKE, JOAN WURST, BELLE SUNNER, S. BROAD, A. BURKE, S. BUSSELL,

J. MCDONALD, G. McLAREN, D. RENNISON, J. STREET, J. WATTS, R. WILLTAMS,

THE COURT ORDERS THAT the questions raised for decision

(ii) Yes (iii) No Civ) No. Question (2) (a) (i) No (ii) Yes (iii) No

IN THE MATTER of the Conciliation and Arbitration Act, 1904

AND IN THE MATTER of applications under Section 140 and 141 of the said Act

BETWEEN: LESLEY ANDREE SQUIRES, VIRGINIA MCDOWELL and HELEN MONCKTON

AND: LYNE PIKE, JOAN WURST, BELLE SUNNER, S. BROAD, A. BURKE, S. BUSSELL, H. COOKE, 8. COOPER, S. HALL, X. HEALY, D. JENKINS, P. RYAN, J. McDONALD, G. McLAREN, D. KENNISON, J. STREET, J. WATTS, R. WILLIAMS, AK. OEDING and THE AIRLINE HOSTESSES' ASSOCIATION

The Airline Hostesses' Association is an organisation of employees registered under the Conciliation

and Arbitration Act, 1904. A new set of rules for the

Association was certified by the Deputy Industrial Registrar on 9 October 1980. There was a transitional rule which provided in effect that the Federal Executive in office under the oid rules would remain in office until the Federal Council under the new rules was constituted. There was not,

however, any similar provisions under the new rules in

relation to the Branch Committees in office under the old rules. Rule 6(b) of the new Rules is as follows: "A branch of the Association shall be autonomous in matters relating to the affairs of the Branch but shall be subject to the control of the Federal Council in matters affecting more than one branch or the interest (sic) of the Association as a whole." In about March and April 1981 a dispute arose among members of the Association as to whether there was at

that time a governing body of the erstwhile Overseas Branch,

The applicants Lesley Andree Squires and Virginia McDowell and the individual respondents, except Lyne Pike and A. Oeding, were declared to be elected unopposed to the Overseas Branch on 27 January 1981 by the Returning Officer of the Australian Electoral Office. The applicant Lesley Andree Squires was declared elected as President and the remaining two applicants as councillors. The respondent Joan Ellen Wurst was declared elected as Vice President and the respondent Isabella (Belle) Sunner was declared elected as Secretary. Joan Ellen Wurst was elected unopposed as the branch delegate to the Federal Council. The Branch Council as declared to he elected was constituted by more members than the earlier Overseas Branch Committee and some members were different. The former "Chairman" was not a member of

the new "Branch Council". Under the new rules, persons

elected were to take office from the date of the next Annual

General Meeting (rules 17(d) and 17(m)(iii)). What pur- ported to be a meeting of the Overseas Branch Council held on 25 February 1981 purported to elect Helen Monckton to the Branch Council, under a rule of the new rules enabling vacancies on the Council to be filled. A resolution at the same meeting decided to charge her with "gross misbehaviour". Lyne Pike is accepted as being, and as having been at all material times, the Federal President of the Association. It is unclear how it is claimed, if it is claimed, that A. Oeding is a member of the Overseas Branch Council. She was apparently regarded as the Branch Returning Officer. Later meetings of what purported to be the Branch Council, which took place before any meeting occurred which could be called

an Annual General Meeting, purported to remove the applicants

In an endeavour to repair the situation apparently affecting Branches, the Federal President of the Association,

purported to act under rule 24(e) of the Rules of the

(e) in matters of emergency act to safeguard the, interests of the Association."

She issued a document dated 21st April 1981, in the

In view of the extraordinary circumstances outlined below,

the Airline Hostesses' Association is faced with an emergency

and therefore I, Lyne Pike, Federal President of the A.H.A., pursuant to the powers conferred on me by reason of Rule 24 (e} of the rules of the A.H.A. hereby assume said powers.

My assumption of powers under the said Rule is imperative to safeguard the interests of the A.H.A. and its members as a whole.

Rule 21(e) of the said rules confers upon the Federal Council of the A.H.A. the power to make a determination wherein the rules themselves are silent.

The rules of the Branch Councils of the A.H.A. are silent as to what body is the managing/sgoverning/controlling body of a Branch, following the date when the former Branch Council goes out of office, that is between the date when each of the former Branch Council members go out of office and the new Branch Council members takes office.

Pursuant to the emergency powers vested in me hy virtue of Rule 24 (e) above and in accordance with the general policy of the A.H.A. as evidenced by the rules of the A.H.A. and the "de facto" situation that has arisen following elections and the going out of office of the former members of the Branch Councils, I HEREBY DETERMINE that during the period beginning from when the silence in the rules (referred to above), arose and terminating when the new Branch Council members validly take office in accordance with the rules of the A.H.A., that the Council-Elect of each Branch of the A.H.A. shall have, perform, exercise, and be entitled to have, perform and exercise all the powers, duties and functions of a Branch Council of the A.H.A. as set out in the Rules of the A.H.A.

which relate to the powers, duties and functions of a Council fmt of a branch of the A.H.A. to the same extent and in the same

manner as if the said Branch Council had in fact taken office at the date on which the silence in the rules arose. In the

meantime the A.H.A. is seeking legal advice as to whether or not the Federal Council of the A.H.A. can in this extraordinary Situation validly vote in accordance with Rule 21 (e). If

this legal advice is to the effect that the Federal Council of

the A.H.A. could so vote then within 21 days of the receipt of

such advice I will, within the scope of my powers as Federai President take all possible steps necessary to ensure that the Federal Council of the A.H.A. is given the opportunity to vote in relation to the determination set out above be taken.

On 19 May 1981 the applicants obtained a rule to show cause related to the above purported removals from office, and some specific matters have been abstracted to be deait with pursuant to Order 29, rule 2 of the Rules of Court. The

"a. (a) Upon the proper construction of the relevant rules of the Airline Hostesses Association as in force at the date when the applicant Squires was purportedly removed from office as Branch President of the Overseas Branch of the said Association namely 3rd March 1981 by purported resolution of Branch Council of the said Branch:

(i) Were the respondents (or sufficient of them to provide a quorum) present and voting for the said purported resolution for the removal from office of the said Squires on 3rd March 1981 entitled to take part in a meeting of the said Branch Council held for such a purpose on that day?

(ii) If the answer to (i) is no, was the said purported resolution of Branch Council of the said Branch for that reason null and void and of no legal effect?

(iii) If answer to (ii) is yes, having regard to the provisions of sub-s.(6) of section 171B of the Conciliation and Arbitration Act, 1904 was=the said purported resolution validated by operation of section 171B of the said Act?

(iv) If the answer to (iii) is no, was the said purported resolution of Branch Council validated by the making of a direction in that behalf by the Federal President in exercise of the powers conferred on the holder of that office by sub-rule (e) of rule 24?

(a) Upon the proper construction of the relevant rules of the Airline Hostesses' Association as in

Monckton were purportedly removed from office as members of the Branch Council of the Overseas Branch of the said Association namely 26th March 1981 by purported resolution of Branch Council of the said Branch:

(i) were the respondents (or sufficient of them to provide a quorum) present and voting for the said purported resolution for the removal from office of the said McDowell and the said Monckton on 26th March 1981 entitled to take part in a meeting of the said Branch Council held for such a purpose on that day?

(ii) If the answer to (i) is no, was the said purported resolution of Branch Council of the said Branch for that reason null and void and of no legal effect?

(iii) If the answer to (ii) is yes, having regard to the provisions of sub-s. (6) of section 171B of the Conciliation and Arbitration

Act, 1904 was the said purported resolution validated by operation of section 171B of the

(iv) If the answer to (iii) is no, were the said purported resolutions of Branch Council validated by the making of a direction in that behalf by the Federal President in exercise of

the powers conferred on the holder of that office by sub-rule (e) of rule 24?"

Relevant facts have been agreed, or are not in dispute,

It is conceded on behalf of the respondents that unless the meetings and resolutions of the Branch Council which are referred to have been validated by s.171B of the Act, or rule 24{e) of the Federal rules, that they are, and remain, invalid. The question, then, is as to the effect of these

This 1s a long section, sub-section (1) of which is

"Subject to this section and to section 1716, all acts done in good faith by -

(a) a collective body of an organisation or branch of an organisation or by persons purporting to act as such a collective body; or

(b) a person holding or purporting to hold an office or position in an organisation or branch,

shall be valid notwithstanding any invalidity that may afterwards be discovered in -

(c) the election or appointment of the collec- tive body or any member thereof or of the persons or any of the persons purporting to act as the collective body;

(d) the election or appointment of the person holding or purporting to hold the office or position; or

(e) the making or the alteration of a rule of the organisation or branch."

(s.171G is not relevant in the circumstances which happened).

The section is one of several introduced in 1974, in a New Part, Part IXA, the heading to which is "Validating Provisions for Organizations". Sections 171C and section 171D provide for the Court making validating orders in certain cir-

The types of defect to be cured are those set out in paragraphs (c), (d) and (e). The defects relate respectively to the body or person which, under the sub-section is required to have acted in good faith. What the sub-section presupposes is an act done, which is afterwards discovered to be invalid,

and which, therefore may possibly have been regarded as valid

In the present case, the absence of a Branch Council

was a result of the constitution itself. Probably as the

result of an oversight, no provision was made for there to be one at the time in question, namely when the expulsions took place. There was no Branch Council and no one to convene onc. On one conceivable view, the former Branch Committee was still in existence, but it is unnecessary to decide on the correct- ness of this view. What was done proceeded on the basis that there was no Branch Committee or governing body, (other than the Branch Council) and it is sufficient if I accept that

Referring directly to the language of paragraph {c), there was no relevant defect in the election or appointment of

the Council, and no other paragraph of the sub-section is

applicable. Sub-section (6) of s.171B is as follows:

"Nothing in this section validates the expulsion or suspension of, or the imposition of a fine or any other penalty upon, a member of an organ- isation which would not have been valid if this section had not been enacted."

holder (Egan v Harradine (1975) 25 FLR 336). Consistently

with that decision, the sub-section should not in my opinion

be given a narrow construction. I am therefore of the view aS, : -

that this sub-section would operate to prevent validation,

even if sub-section (1) were to be applicable to the circum-

The Federal President who acted was a person whom I

take to have been elected under the new rules; at all events

she was not the person who was Chairman under the previous rules. The Federal Council (under the new rules) consists

in part of branch delegates, elected at the time of the branch elections (rules 27, 28(a)). It has been assumed, and I proceed on the basis, that the Federal President had been duly elected, and was holding office at the time the notice

I have already set out rule 24(e}. Reference is made in the determination purporting to be made thereunder to rule 21(e), the full terms of which are as follows:

preceding Rule the Federal Council shall have power to°

(e) determine anything wherein the Rules are silent." Counsel on both sides have submitted that I should understand the determination as a direct application of rule 24({e), and not as one working through rule 21(e). I do this,

although the result would not be different were the other

It seems to me that the President was not by her fat determination doing an "act", nor was it made in an "emergency''. She was in fact trying to fill a gap (or "silence") in the Constitution of the Association. She was by a broad and general provision adding to, or qualifying, the

rules. She purported to validate actions retrospectively and

give them validity prospectively. There was not an emergency

in any proper sense; the situation had existed since the

I am therefore of the view that the sub-rule could not be relied upon to give effect and validity to the

resolutions in question of the Branch Council. I therefore answer the questions asked as follows:

(ii) Yes (iii) No (iv) No. Question (2) (a) (i) No (ii) Yes (iii) No (iv) No.

I understand that these answers will dispose of the whole of the matters raised in the proceedings, but the Court will hear argument on that matter, and on the question of

i I certify that this and the gy i preceding pazes are a trues copy cf the Reascns for Judgment herein of his Honour at Mr. Justice Fox

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)

Parties

Cases Cited (1)

Cited By (4)