CATCHAORDS Whether a resclution passed by the Victorian Branch Executive of the Federated Miscellanesus Workers' Union of Australza that the applicants be susxended with pay frow thei positions was inconsistent with a resolutio passed by a special Branch meé*ing that they he reinstated - Suspenzion - weaning of suspension - the a roan employer to require that an employee not perform. Arhiuyration ac ae af ' Smithers J 28 October 1982 TOS IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT RUGISTRY No. V27 of 1983 INDUSTRIAL, DIVISION EX TYMPORE JUDGMENT IN THE MATTCR OF THE CONCTLIATION AND ARBITRATION ACP 1Ly04 and IN THE MATTOR OF APPLICATIONS UNDER SUCTION 140 AND J+ TOF ACT Between: R. EDWARDS, R. GRANT, G. LEW, Re. CHMSHITE, G SLATER, P. HIND allp i. BLARDSLEY ~ (Aprlicants } And: RAY CINTZELT, CHPLSTOULN SY ALLEN, hk. HELUUT, 2. -- A. WAYLOR, TOY, P. COR ALLXANDER, Cc. VETTOS, KRHYTS, B. : WEEKS, Fe. Sb3b DLGIGL!IO, J. Cc EVDEY, &. ELar L. BREEN, RILEY, (i. . BATT. T. : PRDOLRATED slScrni. Cas WORKERS UNION Or AUSTRALIA. (Respondents) Coram: Smithers J. ee ee ee me ee me tree REASONS FOR JUDGMENT HIS HONOUR: This case concerns an application by the applicants who are a research officer and six branch organizers seeking an interim order that the respondents - Federal and State officers ef the respondent union, the Federated Miscellaneous Workers Union of Australia (MWU)-shculd ireat as null and void a resolution passed on 28 September 1963 hy the Vieterian Branch executive of the MU that whey be evepended fron their positions perding a refrerendvin on their entitlement to hold chose positions. lt jis of importance that it ke clearly understood that in these proceedings all the respondents have acknowledged and asserted that the resolutions are not to be construed as asserting that the applicants do not hold the positions in the union which they held on 16 August 1983. It 1s recognized by them that the applicants do hold those posiiions and che issues in this case concern the right or lack of right of the management of the branch to provide that pending the outcome of the referendum the applicants should not actually perform duties they would otherwise perform. Te ee ee ene ee ke — woe me 8 . - = a eee - ee + Te ee I cee ree Of course, I have heard a lot of evidence as to the ' merits of the dispute which occurred between the applicants in the branch concerning a claim for the introduction hy the branch of a 19 day month for the applicants und other members of the office staff. Also, I have heard much evidence of conduct and alleged misconduct by persons concerned in that Gispute and after the pvrported resolution of the dispute. I have formed some views on ihese matters, but in the result, my vievs turn out not to be matters where, in the circumstances, the view of a judge can be usefully stated. These issues really eonccrn tho members of che branch who will erpless their own views on the issues when they vote in the referendun. As mentioned the epplicution is one for interim relief by the applicants six of whom were branch organizers and one of whom was a research officer whose employment by the branch was terminated by the branch on 16 and 17 August 19683. Thereafter, a special mecting of the branch was sought by the applicants under r.33(c) of the MWU rules (the rules} to consider the matter of the termination of employment by the branch of the applicants. That weeting was held on ?7 September 1983 and resolved that the applicants be reinstated in their positions of research officer and branch organizer as from 16 August 1983. On the next morning the branch cxecutive resolved : "hl. In view of the importance and seriousness of the matters relating to the termination of RK. Ldwards, G. Lewin, FP. Grant, R. Cheshire, G. Slater, K. RBeardsley and P. Hind which has caused deep divisions within the Branch and to ensure thai the matter is resolved according to the wishes of the whole of the Branch financial membership and having regard to the conduct of the special meeting of the Branch on the 27th Septenber 1983, the Branch Executive resolves that a referendum of the whole of the f[Breaench financial memoership be conducted on the fcllowing question:- Thal che decisions of the Branch Stete Council on August 16, 1983, vo terminule the appointment of I. Ediuares, R. rant, and G. Lewin, ang the decisions of the Branch Txecutive on August 17, 19%3, to terminate the appoliutment of K. Beardsley, R. Cheshire, P. Hind and G. Siater be endorsed. _ 2. That the Branch Executive directs the Branch Secretary to prepare for the next succeeding Branch Executive Meeting a report on the procedures for the conducting of the said referendum. 3. The Branch Executive further resolves that, at the next succeeding meeting of the Branch Execcutive, a Returning Officer be appointea to have the conduct of the said referendum. 4. In the light of the decision of the Branch Executive to conduct a referendum of the whole of the Branch financial member>hip, the Branch Executive determines that k. Kdwards, G. Lewin, R. Grant, R. Cheshire, one ee cee nee mn . G. Slater, K. Beardsley and YP. Ilind be immediatcly sus,ended from Lheis respective positions with ful] pay pending the outcume of the referendum." Pursuant to that resolution the applicants have been excluded from the performance of any of the duties pertaining to their positions which are in question. It is the case for the applicants that this corduct is in contravention of the rules, and in particular, r.59, which states: "Any decision made by a meeting of the branch shaJl be binding on the state council and the state branch executive office until such decision is reversed by a special neeting of the branch or by acerslouw of memoere oF the Lreneb out relerendur held ae neirly as practicshl)e oF by decisztom of the Federal council] or f£ecera executive." Fo) 'he Victorian bBraich Execut+ve resolution is in Branch uw contravention of tke decision of the cpecia meeting, 2f it is to be emmstruea «Ss a Gee}r. tion that the branch determined to treat applicants as no longer the occupiers of the positions they held en 16 August 1983. The proper construction of the resolution depends on the actual words used and the circumstances in which they were used. ft is : . : e critical to decide in what sense the word "suspend" is used. It is a word of flexible meaning responsive to the context and circumstances. in this case the problem ts whether jt is used jn the ay sense of, "We treat the employees as though they do nok hold the positions in issue." or, "We treat Lhem ' as the occupiers of those positions but subject to anstructions from the branch not to perform dutics.". The distinction is recognized by Mr. Justice Fitzgerald in Hill v. Higgins (1981) 40 ALR 476 at 491, where he indicated that suspension way constitute a posilion where a person being suspended continues to occupy office but is uneble to cxercise the powers attendant thereon. There 1s a suggestion that this may be the ordinary meaning of the word ""suspeue@" and 1 am inclancad to think that In moéeru conditions jn rotation to inast emplovment that is sc. In this case the phrase used in "suspended fron their posations". At LTirst sight this appears to bre an direct contradiction of the Gecision of the special branch mesting het on consideration I think that reading the full text of the resolution in the circumstances, that this is not SO» Tt is made "ain the light of the decision to hold the referendum' which was io deal with the decision of the special meeting which ex hypothesi persists until the refcrendum sets it aside, 1f it does do so. It provides for a suspension on full pay. Pay for what? ye The answer is nol pay by way of gift, but pay agrecd upon and acising out of the relevant employment. So construed the resolution vas not in defiance of the decision of the special inceting. lt was a decision with reference to a courso of aclion to be taken jin the light of that decision. The Special Branch Meeting resoltuion restored the YXapplicants to their employment. Management was then faced with a situation that there wis then a problem arising out of the conditions of stress which they believed likely to affect the conduct of the branch office in particular, and the branch ac! generally, 3f£ che applicants, were to reemae work ap close proximity to the vlher pursons workang in that office, including office staf. Thet there was likely to be a sericus stress situation arising ouac of past events, personal antipathies, and attitudes adopted is plain to see by anyone who has heard the evidence in this case. The branch executive and secretary are responsible for the day to day management of the branch and it is their duty to see that the conduct of the business 15 cacried on efficrently and properly. From their point of viewit was therefore necessary to make a decision receognising the conlinuance of the a eo employment relationship betveen the applicunls and the branch with a right to the payment of their salarics put at the same time the bianch executive excreised a right which is normaliy that of an elployer existing, save in special circumstances, to require thet the employee not perform duties he 1s employed to perform, By resolving as the Brench Executive dud on 28 September 1985 the employment Situation brought about by the special meeting persists. In this case I would consider that the normal right @id exist and that there were no special circumstances which would tehe at oul oF ire ero. 0 emplayment relationships Lo which the right referred applies. See Collier v. Sunday Co. Lid. (1940) 4 Ai EP 734 at 236. The branch cxecutive exercised a vtaght pertaining to the terms of that employment; namely, a ridht arising from a term that the employer may direct the enployee not to perform duty he would otherwise be required to perform. Tf, coutrary to what I have siid, the resoluticn of 28 September 1983 should be considered ar a non-compliance with the decision of the srectial obese eee sepa 9. meeting and to be an assertion that the empleyirent of the applicants was noc resumed pursuant thereto, then ' there would be a breach of the rules of the union which this court could enjoin. But before taking interim action in that respect the court would have to remember that the resuli sought by the branch, and in my view legitimately and successfully sought, that iu 'the circumstances at present existing the applicants should not attend the office for the purpose of performing duties, and thus be in close proximity to those with whom they are in a stressful relationshiny, could be and undouptedly would be achicved by the passing of a rezatulLton jn express terns to achieve that which £ hive Lela cle present resolution actually does upon dis prualy construction. In the fulléese sense tlicrefore, th> interim rejicf, if grauted, vould certainly be futile. : Miss Hickey, who has made every submission possible in my view, has urged that I should regard the resolution as lackiny 1n bona fides; that 1s to say, that it was not passed for the purpose of carrying on the business of the branch but to achieve the private desires of branch officers and management of the union for revenge or for alleged past conduct or to achieve personal advantage in the forthcoming rt bam) election. ft may wel] be, and probably is, that those referred ro would £ee] gratifred that they are not required to have the applicants actually at work; and particularly so an view of the forthcoming referendum. Bur it is impossible to say that that is the reason for their action. ° The nost impartia] person, haviug heard the evidence, 4£ faced with the situation that they were in oa 28 Septemper 1983 would have to recognise that the prospect of the return to work of the applicants in the condicions then obtaining, vould piece the peor conduct of tbe business of the branch wo serreus EGopucdy. li vould not be to the point ta eaas.ine the queciion of whese conduct or whar circmastances basically caused the conditions of stras¢. VnerTe was, therefore, good reason to attempt, if possible, to obey the special meeting and ac the same time avoid difficulties which would have been likely to attend the resumption of the applicants at the branch office of their actual course of duties. The fact that it was a course which the branch mey have liked to pursue could not take away the justification for action designed ta avoid the perils wee tens ve Fo yo involved that 1 have referred to, in the resumpiion of vork at the office by the applicants. f£ have no : doubt that the anxiety felt by the branch execulive in this respect was genuine. In the view I have taken, there is no guestion of depriving any person of any right pertaining to their employment or their membership. The employment and the membership of the applicants in this case remains as each of them was on 16 August 1983. Accordingly the application for interim relief is rejected. a thank all counsel for their assistance. MR. KENZIE: LT am not sure whethzr more shovwld be said eben directions in these proccedings? MS. WICKEY: fucre is the origwial application, the rale HIS HONOUR: Yes, that 1s right. MS HICKEY: T Go not presently ask, but the listing in respect of directions -~-- HIS HONOUR: J reserve liberty, will I? MS HICKEY: Yes, if your Wonour would. HIS HONOUR: I will reserve Jiberty to apply with refecence to future conduct of the motion. MR. LENZTS&: I wonder does that mvan stood over generally? HIS WONOUR: {£ will stand 1t over generally with leave to e1ther party to apply to have the matter brouch Wee Se 4s are eu Cee tte te er er me ee Nd nae I etter anetee shee ans <3 10 IRE nen REN RE TT REIN I TST ent me, Pe So ene ee ee ee ee Ra eee ek nee le dee a ete oe a . . MR. KENZIE: HIS HONOUR: MR. KENZIE: HIS HONOUR: on 12. in any respect. Would your Honour say any party? I beg your pardon? Would your Honour say leave to any party? Leave to any party. ea ' a — aa Ww We will adjourn. Metee eee em te ee OTT - mes H2{ Sz CATCHNORDS Whether a resolution passed by the Victorian Branch Executive of the Federated Miscellaneous Workers' Union of Australia that the applicants be suspended with pay From th (it ts he r positions was inco.sistent with a resoluticn passed by a svecial Branch meeting that they be reinstated - suspension - mening of suspension - the cight, of an emtiaver to reavire that an empioyes mot pereforr duties hoa it e V Ue. 27 cf 1983 Fmithers J. 28 October 1982 Melboucne. wie oe ee ee ee eee ad We LOAPL . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. V27 of 1983 INDUSTRIAL DIVISION we ewes ww EX TEMPORE JUDGMENT IN THE MATTER OF THE CONCILIATION AND AVBITRATION ACT 1964 and IN THE MATTER OF APPLICATIONS Uybek SECTION 140 AND [4D OF THE ACT Between: R. FDVARDS, R. GRANT, G. LEWIN, R. CEESIPE, G. SLATER, P. BIND AND K. BEARISLYY (Agr licants) HELrU?, 3. -- A. PAYLCP, 's. . TOY, P. COrbu.l*, FT. ALLXANOGR, C. VLitos L. BRbhs, We RILEY, ii. RUGLKS, S$. - BATT, Re BYNDUALN, and FEDERATED MISCELLANLUUS WORKERS" UNION OF AUSTRALIA (Respondents) Coram: Smithers J. 28 October 1983 phan ee et he ene oe REASONS FOR JUDGMENT HIS HONOUR: This case concerns an application by the applicants who are a research officer and six branch organizers seeking an interim order that the respondents - Federal and State officers cf the respondent union, the Federated Miscellaneous Worters Union of Australia (MWU)-snould treat as null and void a resoiution passed on 28 September 1983 by the VYictevian Breneh enecuctive cf the MU thet thcy he evspeaded Cron their positicus pending a refercrdum on their entitlement to hold vhose positions. It is of amportence that 1t be clearly understood that in these proceedings all the respondents have acknowledged and asserted that the resolutions are not to be construed as asserting that the applicants do not hold the positions in the union which they held on 16 August 1983. lt is recognized by them that the applicants do hold those positions and the issues in this case concern the right or lack of right of the management of the branch to provide that pending the outcome of the referendum the applicants should not actually perform duties they would otherwise perform. NOT ee ee re ee ee Ere ee eee on ee ee ee ee 'Of courge* I have heard a lot of evidence as to the merits: of the dispute which occurred between the applicants in the branch concerning a claim for the introduction by the branch of a 19 day month for the applicants and other members of the office staff. Also, I have heard much evidence of conduct and alleged misconduct by persons concerned in that dispute and after the purported resolution of the dispute. I have formed some views on these matters, but in the result, my views turn out not to be matters where, in the curcurstances, the view of a judge can be usefully stated. These issues really concern the members of the brinch who vill errress their own views on the issues vhen they vote in the referendum. As Mentioned the application 1s one for interim relief by the applicants six of whom were branch organizers and one of whom was a research officer whose employment by the branch was terminated by the branch on 16 and 17 August 1983. Thereafter, a special eet ing of the branch was sought by the applicants under r.33(c) of the MWU rules (the rules) to consider the matter of the termination of employment by the branch of the sean ve acerca. ___ applicants. That meeting was held on 27 September organizer as from 16 August 1983. dtm morning the branch executive resolved : "y, In view of the importance and seriousness of the matters relating to the termination of R. LIdwards, G. Lewin, R. Grant, R. Cheshire, G. Slater, K. Beardsley and P. Hind which has caused deep divisions within the Branch and to ensure that the matter is resolved according to the wishes of the whole of the Branch financial membership and having regard to the conduct of the special meeting of the Branch on the 27th September 1983, the Branch Uxecutive resolves that a referendum of the whole of the Branch fanancia] mevorrship be conducted on the following questioi:- Thal the decisious of the Branch State Council on August 16, 1983, to terminate the appointment of R. Edwards, R. Grant, and G. Lewin, and the decisions of the Branch Executive on August 7, $1953, to terminate the appointment of K. EBeardslcy, R. Cheshire, P. Hind and G. Slater be endorsed. a That the Branch Executive directs the Branch Secretary to prepare for the next succeeding Branch Executive Mceting a report on the procedures for the conducting of the said referendum. The Branch Executive further resolves that, at the next succeeding meeting of the Branch Executive, a Returning Officer be appointed to have the conduct of the said referendum. In the light of the decision of the Branch Executive to conduct a referendum of the whole of the Branch financial membership, the Branch Executive determines that R. Edwards, G. Lewin, R. Grant, R. Cheshire, and resolved that the applicants be reinstated On the next ' i ' ceed emai coo 5. G. Slater, K. Beardsley and P. Hind be + immediately suspended from their : respective positions with full pay pending the outcome of the referendum." Pursuant to that resolution the applicants have been excluded from the performance of any of the duties pertaining to their positions which are in question. It is the case for the applicants that this conduct is in contraventz1on of the rules, and in particular, r.59, which states: "Any Gecision made by a meeting of the branch shajJl p22 binding on the state council ard the state branch executive office until such decision 1s reversed by a special neclingy of the hranch or by Geoersien OF wewoere GE cle Lraveb at a referonter held as neeviy as practicente o by Gecictor of the Federal enmtne:] or tc ferni exccucive." r The Victorian Prarch £Lxeecu .ve resolution ais in contravention of tle decision of the special Branch meeting, 1f it is to be ccnstreed -s a decla.srtion tinat the branch determined to treat applicents as no longer the occupiers of the positions they held on 16 c August 1985. The proper construction of +t cine resolution depends on the actual words used and the circumstances in which they were used. It is e critical to decide in what sense the word "suspend" 1s used. It is a word of flexible meaning responsive to the context and circumstances. In this case the problem is whether it is used in the an wend ae a ard eet ee eee ee sense of, "We treat the employees as though they do not. hold the positions in issue." or, "We treat them .vas the occupiers of those positions but subject to anstructions from the branch not to perform duties.". The distinction is recognized by Mr. Justice Fitzgerald in Hill v. Higgins (1981) 40 ALR 476 at 491, where he indicated that suspension may constitute a position where a person being suspended continues to occupy office but is uneble to exercise the powers attendant thereon. There is a svggestion that this may be the ordinary meaning of the word "susnend" and I an inclined to think that in moéern conaitiors in relatsuon to most employment that 18 sc. In this case tue phrase used in "suspended from thery vositions". At Firet saght this appears to be in Grrect conrirediciion of the decision of the special branch megting but on consideration I think that reading the full text of the resolution in the circumstinces, that this is not SO. It is made "in the light of the decision to hold the referendum" which was to deal with the decision of the special meeting which ex hypothesi persists until the referendum sets it aside, if it does do so. It provides for a suspension on full pay. Pay for what? eae ee a Pte 7. The answer is nol pay by way of gift, but pay agreed upon and arising out of the relevant employment. So construed the resoJution was not in defiance of the decision of the special meeting. It was a decision with yeference to a course of action to be taken in the light of that decision. The Specia] Branch Meeting resoltuion restored the fapplicants to their employment. Management was then faced with a situation that there was then a problem arising out of the conditions of stress which they believed likely to affect the conduct of the beanch office ain narticular, ard the branch zcvivyities generaily, if the applicance wore to resume work un close pinwimtly to the otier persows working in that office, anciucding officer staff. Vhat there was likely to be a sericus clress situation arising out of past events, personal antipathies, and attitudes adopted 1s plain 'to see by anyone who has heard the evidence in this case. The branch executive and secretary are responsible for the day to day management of the branch and it is their duty to see that the conduct of the business 1s carried on efficiently and properly. From their point of viewit was therefore necessary to make a decision recognising the continuance of the 7 Nee mien cae os 3 ' 8. _ "qe thé "branch with a right to the payment of their fin . . - ' "salaries but at the same time the branch executive exercised a right which is normally that of an employer existing, save in special circumstances, to reguire that the employee not perform duties he is employed to perform. By resolving as the Branch Executive did on 28 September 1983 the employment situation brought about by the special meeting persists. In this case I would consider that the normal right a@id exist and that there were no special curcumstances which sould take ft out of tte ore. of Cc Ie uw, rT o H tC ith ras f i employment relationsnivs lo wh ch th we TT applics. See Colli Co. Lia. (1940) 4 sli LR 234 ot 236. The branch executive exercised a right pertaining to the terms of that employment: narely, a right ar*sang from a term that the employer ray Girect the erplovee not to perform duty he would otherwise be required to perform. If, contrary to what I have said, the resolution of 28 September 1983 should be considered as a non-compliance with the decision of the special ama Saba ta x * the» af 9. meeting .and to be an assertion that the employment of a Py nae applicants was not resumed pursuant thereto, then Wes ' ay Se there Would be a breach of the rules of the union which this court could enjoin. But before taking interim action in that respect the court would have to remember that the result sought by the branch, and in my view legitimately and successfully sought, that in 'the circumstances at present existing the applicants should not attend the office for the purpose of performina duties, and thus be in close proximity to those with whom they are in a stressful relationship, could be and undoubtedly would be achieved by the passing of a resolution in express ters to achieve that which I imve held the present resolution actually does upon its proper construction. In the fullese sense, therefore, ths interim relief, if grauted, would certainly be futile. Miss Hickey, who has made every submission possible in wy view, has urged that I should reaard the resolution as lacking in bona fides; that 1s to say, that it was not passed for the purpose of carrying on the business of the branch but to achieve the private desires of branch officers and management of the union for revenge or for alleged past conduct or to achieve personal advantage in the forthcoming ot data mR te 14, It may well be, and probably is, that those referred to would feel gratified that they are not required to have the applicants actually at work; and particularly so in view of the forthcoming referendum. But it is impossible to say that that is the reason for their action. ° The most imparLial person, having heard the evidence, if faced with the situation that they were in on 28 Seplomber 1983 would have to recognise wnat the prospece of the return to work of the applicants in the conditions then cbintiing, vortd pllec the pro ~ sr copdnel of the business, of we branch ita sericae YEOp wi dy « lt vould not be to the point co vaxamine the nNestion of whese condecr er what circumstances basicaily caused the conditions of ftres<, were was, therefore, good reason to attompt, if possible, to obey the special neeting and ac the same tuiine avoid @ifficulties which would have been likely to attend the resumption of the applicunts at the branch office of their actual course of duties. The fact that it was a course which the branch may have liked to pursue could not take away the justification for action designed to avoid the perils ll. . involved that I have referred to, in the resumption of work at the office by the applicants. I have no + doubt that the anxiety felt by the branch executive in this respect was genuine. In the view I have taken, there is no question of depriving any person of any right pertaining to their employment or their membership. The employment and the membership of the applicants in this case remains as each of them was on 16 Auyust 1983. Accordingly the application for interim relief is rejected. 1 thank all counsel for their assistance. MR. KENZIN: Tam not sure whelher wore chonld he raid tbaut Girections in these proceccrunys,? MS. HICKEY: Ticre 35 the or getal applJicciion, the rule HIS HONOUR: Yes, that 1s riglit. MS HICKEY: TI do not presently ask, but the liscting in respect of directions ~--- HIS HONOUR: I reserve liberty, will I? MS HICKEY: Yes, if your Honour would. HIS HONOUR: I will reserve liberty to apply with reference to future conduct of the motion. MR. KENZIE: I wonder does that mean stood over generally? HIS HONOUR: I will stand it over generally with leave to either party to apply to have the matter brought '. i ' 12. spy SR ay 7 on in any respect. MR. KENZIE: Would your Honour say any party? s HIS HONOUR: I beg your pardon? ° MR. KENZIE: Would your Honour say leave to any party? d HIS HONOUR: Leave to any party. We will adjourn.. - - ~~ —_—: aos weap a thy | 1 . ~ ' - . ws oe Oe he or we } Seven frat 3 \ . afoo]s3 1 ' Pe a ee ke a eee! ! ' t i } 2A SE he oats EGR AU RG! SOLE SO oa a me os LOTR Men tn ROD EAN Pett oF ena t rare eine nes tees RR bad