Mie a ER el ta oe Oe A he i ee ee IN THE FEDERAL COURT OF AUSTRALIA ) d. VICTORIA DISTRICT REGISTRY ) V. No. 4 of 1981 ) ) INDUSTRIAL DIVISION IN THE MATTER of the CONCILIATION - AND ARBITRATION acT 1904; "and IN THE MATTER of an application under Section 171D of the Act and IN THE MATTER of an application by THE HOSPITAL EMPLOYEES FEDERATION OF AUSTRALIA NORTHROP J. EX TEMPORE JUDGMENT 25 MAY 1981, This is an application brought by the Hospital Employees Federation of Australia pursuant to s.171D of the Conciliation and Arbitration Act 1904 seeking the reconstitution of a branch of the federation. The federation is an organization under the Act and it comprises a number of branches including two branches in New South Wales at the present time known as the No. 1 branch and the No. 2 branch, see rule 34 of the federal rules of the federation. ; The application is brought under sub-section (1) of s.171D of the Act seeking firstly a declaration that the New South Wales No. 2 branch of the federation has ceased to exist Whe Hee bt ellie rt dal eth a ee fem eS aE eae a ae CE can AE Oke or to function effectively and that there are no effective means under the rules of the federation or the branch by which it can be reconstituted or enabled to function effectively. Notice of the application was given to the financial members of the No. 2 branch, being 70 persons, the names and addresses being obtained from the records of the federal office of the federation and confirmed by the deduction sheets whereby the employers of those members deduct the union dues from the wages of those members. No response was had to that notice of the application seeking declaration. On the directions hearing of the application, after: referring to the fact of the service of the application on the members of No. 2 branch, orders were made that the matter be set down for hearing at a time to be fixed by the Registrar. Notice of the date of the hearing of the application likewise was served on each of the members of the No. 2 branch, There has been no communication from any of those members except one who says that she is no longer a member but, of more importance, no person has objected to the form of the scheme set out in the application. In view of the notices given to members of the No. 2 branch it is not necessary to make any further order or direction or direct notice to be given by way of advertisement or otherwise pursuant to s.171D (6) .of the Act. The evidence in support of the making of the declaration appears from the affidavit of Leslie George Butler, sworn on 2 April 1981 and filed herein, together with oral ERM rR EE OR ERE Ne RE ka aE nde taal Ae la ee atte Bee Roa Re et a nee EO oh evidence given today. I do not propose to repeat the substance of that material except to say that I am satisfied as to the truth of the facts sworn to and they establish the fact that the No. 2 branch 1s not functioning at all at the moment and also has ceased to function effectively. Under s.171D(1) of the Act an organization, in this case the federation, may apply to the court for a declaration that a part of the organization, including a branch, has ceased to exist or to function effectively and there are no effective means under the rules of the organization or \ branch by which it can be reconstituted or enabled to function effectively and, in those circumstances, the court has jurisdiction to hear and determine the application and to make a declaration accordingly. The material before the court shows that attempts have been made to have the branch function effectively and those attempts have extended over some years. The number of financial members is small and having regard to the basic requirements of branches at the current time a membership of 70 1s hardly sufficient to support the view that a branch with that membership could function effectively. There are no office bearers and no elections have taken place for many years and on the material before the court I am satisfied of the conditions prescribed by Flew OSB WSEDAeaa TEN ata tee Came Ee ete outcte lee Law sentence mae anki teehee tee aE SET eM tT Pa o sub-section (1) of s.171D. Accordingly the court makes the declaration in the form sought as follows: ",., that the New South Wales No, 2 Branch of The Hospital Employees Federation of Australia has ceased to exist or to function effectively and that there are no effective means under the Rules-of the Federation or the said Branch by which it can be reconstituted or enabled to function effectively." In the circumstances of this case there is no need to make the further or alternative declaration sought in the application itself. The question then arises as to what order should be made under sub-section (2) of s.171D. That section reads, and I quote from it - "Where the Court makes a declaration under sub-section (1) the Court may, by order, approve a scheme for the taking of action by ... an officer ... of the organization -.- to enable it to function effectively ..." The "it" in the present case refers to the branch which has ceased to function effectively. What is being sought by the present scheme 1s to create what might be described as an amalgamation of the No, 1 and No, 2 branches in New South Wales. The current federal rule 34 provides as follows: weeks nee el She i ke Mr Sei a Tne Kin athe? SO bdentlnn BT n hahaa Aaah AD aibNerbintin aetna since uae eee mek ie ete be alee ae nine neem e Qeeat rect eae ey me ee "(qa) There shall be a line of demarcation of members as follows: Group A - ,.." There are then set out a number of persons eligible for membership but these exclude certain employees employed in certain areas. Group B refers to the employees who are excluded in Group A, and Group C includes all professional officers and nurses, Sub-rule (d) provides - "In the State of New South Wales there shall be two Branches. No. 1 Branch shall comprise all the members of Group A. No. 2 Branch shall comprise all the members of Group C." ' What 1s sought in the scheme is to create or to form one branch only in New South Wales as follows - "In the State of New South Wales there shall be one Branch comprising all the members in Groups A and Cc." At the present time there are some 1,100 members in branch No, 1 and some 69 members in branch No. 2, By the rules of the federation the national council is constituted under rule 12 and under rule 13 has the management and control of the affairs of the federation and one of the particular powers conferred upon it 1s a power to repeal, alter and add to the rules or any of them. Rule 31 prescribes the procedure to be followed to enable the national council to «Gee See ree ny ae eee ce reece ternt en fe wate Ae Meant At a leh ct nthe Ac mvt Natalee ie te eater ale nd Abia ILE DRA WRI SAnbin he mS eve fam aa exercise its power of altering rules, and I read out sub-rule (1) "Subject to Rules 35(a) and 36 of these Rules no new rules shall be made, nor shall any of the Rules of the Federation be altered, amended or rescinded, except by and at a meeting of the National Council. Notice of any proposed new rule, alteration or rescission shall be sent to all Branch Secretaries at least six weeks prior to the meeting of the National Council at which the matter is to be discussed. Branches shall be bound to inform members at the next General Meeting of the proposed addition, alterations or rescission of Rules and members shall be entitled to instruct their delegate to National Council as to how they shall vote on the submitted proposals ..." Provision is then made for the calling of special meetings 1£ ' no general meeting 1s to be held within the period of six weeks prior to the next meeting of national council to determine the question. The scheme which 1s proposed is directed to authorizing an alteration to rule 34 in the form already indicated by substituting a new sub-rule (d), but because of rule 31 the proposed alteration cannot be dealt with effectively since the No. 2 branch of New South Wales has ceased to exist or to function effectively. To overcome this difficulty the scheme proposed 1s as follows - — "(a) Within 28 days of the date of the Order of : this Court, the National Secretary of the Federation shall give notice to the Secretary of each Branch of the Federation (other than the New South Wales No. 2 Branch) and to each member of the New South Wales No. 2 Branch that at 1ts next meeting to be held 1n October 1981, the National Council shall consider a resolution that Federal Rule 34(d) be altered so as to read - endes Re et Ca Eee Since wilt ihe tie teat rtitinete ae schntnh cliente ie? leg oa at " '(d) In the State of New South Wales there shall be one Branch comprising all the members in Groups A and C,' (b) Within the 6 weeks preceding the meeting of the National Council at which the said resolution is to be considered, each Branch (other than the New South Wales No. 2 Branch) shall hold a general meeting of members at which the Secretary of the Branch shall inform the members present of the proposed alteration to the Rules and at which the members present shall be entitled to instruct the delegate or delegates of that Branch to the National Council as to how such delegate or delegates shall vote on the proposal. .(c) In the event that the said resolution 1s carried at the meeting of the National Council, the National Secretary shall forthwith apply to the Industrial Registrar for certification of the altered Rule, (ad) Upon certification of the altered Rule - (i) the members of the New South Wales No. 1 Branch and the New South Wales , No, 2 Branch shall become the members of the New South Wales branch, (ii) the funds and property of the New South Wales No. 1 Branch and the New South Wales No. 2 Branch shall become the funds and property of the New South Wales Branch, (izi) the Officers, the members of the Committee of Management, the Delegates to National Council and all other delegates, representatives and employees of the New South Wales No, 1 Branch shall be the Officers, the members of the Committee of Management, the delegates to National Council and other delegates, representatives and employees of the New South Wales Branch, and, (iv) the Officers of the Federation and - the Branches of the Federation shall take all steps necessary to give effect to the Order of this Court." The scheme as provided for in that notice, is a scheme within sub-section (2) of s.,171D and is directed to making effective not so much the No, 2 branch but to ancorporate the 1-8. fl we Bebeeapte eed oe OLE EN ae tree SUNS te Ul mah Leanne Mntastimwentile et hbdialaen ENitbaaeeal hme Mme he ne ee A nteentenr ot lnm me manana Name MB ate members who would otherwise not be eligible to be members of the No. 1 branch to become members of the No. 1 branch thereby to become members of an effective body of the federation once more and thus effective in the affairs of the organization. My only cencern is whether sub-section (3) of s.,171D requires further action to be taken or action of a different kind. That sub-section reads - "Before making an order under this section the Court shall satisfy itself that the order would not do substantial injustice to the organization or to any member of the organization," Two matters call for consideration. Firstly, the court was informed that at the present time an election 1s taking place for the office bearers and delegates in the No. 1 branch and the new officers will take office in September of this year and under the rules will hold office for four years. This means that if the rule is altered in accordance with the orders sought the 69 members of the No. 2 branch are not able to exercise their right of voting in the current election and will not have a similar right except by way of possibly filling casual vacancies until the next general elections in four years' time. Having regard to the fact that each of those members has had knowledge of the form of scheme proposed and no one has raised objection to it, having regard also to the fact that the No. 2 branch is not functioning and cannot function effectively and having regard also to the numbers of members involved in the two branches, the court is satisfied that no substantial anjustice is caused to any of the members or persons who were members of the No. 2 branch by reason of not having the right to vote at the current elections. The second matter relates to the funds and property of the No. 2 branch which at the moment comprises some $7000. This is held in a bank account, the payments in being the deductions made by the employers of the members by way of dues to the federation, the payments out being authorized by the federal secretary and the two national trustees. At the present time the individual members of the former No. 2 branch have no control over those funds and they will become part of the funds of the new branch to be created and indirectly the 69 members will gain the benefit from that transfer of funds and the power of the branch to deal effectively with that property. Likewise, the court is satisfied that the transfer of those funds will not do substantial injustice to any member of the organization. Accordingly, the court proposes to make the order sought and to approve the scheme proposed by the organization, The court makes the declaration in the form already indicated and appearing in paragraph 1 of the application and the court makes an order approving the scheme as appearing in paragraph 3 ' G Se TS SESE ORR RAE WO IRIE ET ST REI RE ATEN, of the application. a i o, - I certify that this and the E.qHT C85 preceding pages are a true copy of thd { Reasons for Jutgment herein of the | Honourable Mr. fustica NORTHROP | . vel yt on Wee gy hrcore Assoeiaic '\ iF J Dated: ZO MAY 19S) Fearne ereer stat UN ETI ee ee TT A el ES,