NUDGMENT No. .2\L/3E—5 ' CATCHWORDS INDUSTRIAG, LAW—~<"_ ysion of academic staff at universities - conditions ° second tier salary increase negotiated between Federal Executive and employer body - substantial alterations to terms and conditions of employment of academics - conditions required by Minister - proposed consent award - failure to notify branch secretaries before Executive decision - branch presidents notified - telephone meeting of Executive after responses from branch presidents - no notice of meeting to branch secretaries - no opportunity for branches to send observers - application for order to perform and observe rules - claim for interim order - principles governing grant - formal not substantial non-compliance - discretion to grant final relief - relevant to grant of interim relief ~ balance of convenience - third party interests. COURTS ~ jurisdiction - whether single judge of Federal Court empowered to grant final and interim relief unde Conciliation and Arbitration Act 1904. = CEIVED 24 Sui1983 OuRT OF FEO ENT TALIA B} AL Conciliation and Arbitration Act 1904 5.141, sub~6 2404 ( fapsisrev A> Y LO Lol TT & Thompson v Townsend (1979) 38 FLR 143 Rv Joske; Ex parte Shop Distributive and Allied Employees' Association (15764 135 CLR tsa Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR Epitoma Pt Ltd v Australasian Meat Industr Employees' Union (No.2) TSS 54 ALR 730 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALIR 425 Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR State of Queensland v Australian Telecommunications Commission R Castlemaine Tooheys Ltd v State of South Australia (1986) 67 ALR Bullock v The Federated Furnishing Trades Society of Australasia No. 1) (1985) 5 FCR 464 — ~ TT OD Transport Pt Ltd v Western Australian Government Railways Commission TISEG} T3 FCR 270 Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia (1983) 51 ALR 73 Barneys Blu-crete Pt Ltd v Australian Workers' Union (1979) 43 FLR 3 TERENCE IVAN QUICKENDEN v FEDERATED AUSTRALIAN UNIVERSITY STAFF ASSOCIATION AND JOHN RHYS FOX, RALPH FREDERICK HALL, DIANE ZETLIN, LESLEY RUTH JOHNSON, GARY MICHAEL WICKHAM, JOHN RASPIN PANTER and BRIAN McINNES No. WA ° 988 FRENCH J. PERTH 21 JUNE 1988 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION NO. WA 1 of 1988 BETWEEN: TERENCE IVAN QUICKENDEN Applicant and FEDERATED AUSTRALIAN UNIVERSITY STAFF ASSOCIATION First Respondent and JOHN RHYS FOX, RALPH FREDERICK HALL, DIANE ZETLIN, LESLEY RUTH JOHNSON, GARY MICHAEL WICKHAM, JOHN RASPIN PANTER and BRIAN McINNES Second Respondents MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 21 JUNE 1988 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The interlocutory injunction ordered on 20 June 1988 hereby discharged. Note: Settlement and entry of orders is dealt with Order 36 of the Federal Court Rules. is in IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION NO. WA 1 of 1988 BETWEEN: TERENCE IVAN QUICKENDEN Applicant and FEDERATED AUSTRALIAN UNIVERSITY STAFF ASSOCIATION First Respondent and JOHN RHYS FOX, RALPH FREDERICK HALL, DIANE ZETLIN, LESLEY RUTH JOHNSON, GARY MICHAEL WICKHAM, JOHN RASPIN PANTER and BRIAN MCINNES Second Respondents CORAM: FRENCH J. 21 JUNE 1988 REASONS FOR JUDGMENT ON DISCHARGE OF INTERIM INJUNCTION Introduction It is notorious that the system of higher education in Australia is presently experiencing a restructuring of a number of its institutions and change in the way that they are funded and conducted. Long standing arrangements governing the terms of employment of academic staff are not immune from this process. In particular, the Federated Australian University Staff Association ("FAUSA"), representing academic staff in universities throughout Australia, has recently agreed with the corresponding employer 2. body, the Australian Universities Industrial Association ("AUIA"), to accept as a condition of a 4% "second tier" salary increase for its members, significant alterations to the terms of their employment. It is claimed in this application that the Federal Executive of FAUSA has rushed to agreement in breach of provisions of its rules relating to consultation with its branches in universities throughout Australia. The question before the Court today is whether an interim injunction granted ex parte yesterday, restraining submission of that agreement to the Australian Conciliation and Arbitration Commission as a consent award, should be continued or discharged . Factual Background Terence Ivan Quickenden is a Senior Lecturer in Physical and Inorganic Chemistry at the University of Western Australia. He is also amember of fFAUSA and a former president of its University of Western Australia Branch. FAUSA has 22. such branches and is registered as an organisation of employees under the Conciliation and Arbitration Act 1904. It has recently been engaged in proceedings in the Australian Conciliation and Arbitration Commission relating to the salaries and conditions of academic staff in universities. These proceedings flow from the decision of the Full Bench of the Commission in the National Wage Case in March 1987, allowing for a 4% "second tier" wage increase where justified by improvements in productivity. Following 3. negotiations with AUIA, the Federal Executive of FAUSA (the second respondents), submitted to its branches a proposed agreement to form the basis of a consent award. The agreement embodied a number of changes, and mechanisms for considering further change to the terms and conditions of employment of academic staff at universities. Among these were a proposal for individual dispute resolution, payment of salaries by electronic funds transfer, staff development and assessment programmes, draft proposals for dismissal procedures in the case of unsatisfactory performance, serious misconduct and ill health, and guidelines relating to long service leave to facilitate increased mobility and interchange of staff. A draft proposal on regulation of the taking of long service leave was also agreed. On the question of salary flexibility to allow employers to grant salary loadings of up to 50% in particular cases, the parties could not go beyond an agreement to discuss the matter further on the understanding that if consensus could not be obtained within 6 months employers would pursue it by way of arbitration. There was also provision for the parties to discuss procedures to apply where academic staff become redundant. The proposed agreement was accepted by 16 out of the 22 branches of FAUSA. The University of Western Australia branch considered and rejected it at a meeting held on 24 May 1988. On the same day the Commonwealth Minister for Education, Employment and Training met with FAUSA and AUIA representatives and other bodies involved in cognate proceedings affecting other tertiary institutions and distributed a paper giving the reaction of the Commonwealth to the proposals. The paper commented on various aspects of the draft settlement and sought the inclusion in it of the following principles:- "1. an appropriate level of term appointments - to add substantially to staffing Prexibility within institutions. Term appointments should be made at all academic staffing levels rather than being concentrated in the most junior levels. The Commonwealth suggests 20 per cent as an appropriate figure. 2. part-time enploywent on management's discretion - this 8 ane cient means both of providing staffing flexibility and of attracting staff from industry and public sector employment who might not otherwise be available to teach in higher education institutions. 3. flexible hierarchies (reversionary tenure) - this would provide substantial flexibility in senior academic positions. Appointments to positions at senior lecturer and above would be for a fixed term after which the position would become vacant and open for competition by all staff, including the incumbent. It ensures that the best available members of staff hold senior positions in higher education. 4. early retirement, redundancy and dismissal schemes - these are essential elements in staftfting flexibility. The Commonwealth seeks in-principle agreement to voluntary early retirement where management endorses proposals, to genuine redundancy provisions after redeployment and retraining options have been canvassed, and to dismissal on the grounds of redundancy, subject to appropriate compensation." Two additional proposals embodied in the paper were that:- 5. "1. a national higher education award be adopted, prescribing minimum rates of salary common to all institutions, with incremental steps formally tied to assessment procedures and with the full application of salary bars to determine appropriate promotional levels. 2. the payment of special allowances or supplements above the minimum rate to be payable, upon the decision of institutional management, where it is judged necessary for the effective functioning of an institution's academic programs. The arrangements for paying such supplements are to be determined on a case-by-case basis." According to a memorandum to branches circulated by the FAUSA Executive, meetings with the Minister and affected unions, including FAUSA, took place on 26 May and 2 June. On 3 June a further round of employer/union discussions took place. The view then taken by the Executive was that the Minister's requirements, even in diluted form, were not acceptable. A further meeting with the Minister was held in Hobart on 7 June leading to a revised draft second tier settlement. On 8 June the Federal Executive of FAUSA held a telephone meeting to discuss its attitude to the Minister's proposals and the revised original draft. An outstanding question of inclusion of peer reviews in Unsatisfactory Peformance procedures was discussed and settled with employers on the same day. On 9 June the parties appeared before Commissioner Baird of the Australian Conciliation and Arbitration Commission, who adjourned the proceedings to 21 June to allow time for consultation with constituent bodies. 6. On 9 June the General Secretary of FAUSA circulated a memorandum in which the preceding history of events was set out together with a summary of the position on issues which had been discussed with the Minister. Attached to the memorandum were a copy of the Minister's paper, the revised second tier settlement proposal and a log of claims delivered by the AUIA on 8 June 1988, evidently to establish the existence of an industrial dispute in relation to termination of appointments of academic staff. The memorandum was addressed as follows:- "Presidents of FAUSA Branches Executive All Officers" It requested that "Presidents of Branches comment on the proposals by Fax by 2.00 pm Wednesday 15 June at the latest" and in concluding advised that:~ "The Executive has scheduled an extraordinary meeting on Thursday 16 June to reach a decision and will consider comments from Branches at that time. Such comments should, if all possible (sic), be faxed to this office by 2.00 pm on Wednesday 15 June." It is not in dispute that the memorandum so circulated was not sent to any officers of the branches other than the Presidents. Subsequently, some 14 Branch Presidents of the first respondent indicated their acceptance of the proposals set out in the proposed new settlement, 5 rejected them and 3 Presidents indicated they required more time to consult with branch members. 7. It i6 common ground that, armed with these responses, the Federal Executive held a telephone meeting on 15 June in lieu of the extraordinary meeting originally intended for 16 June. It decided at this meeting to proceed with the revised second tier settlement. On 17 June, a circular was sent by the General Secretary to members of the Executive, Branch Presidents, all committees and all officers in the following terms:- "On Wednesday 15 June 1988 the FAUSA Executive ratified the final draft of the 4% Second Tier Package. The Executive took its decision on the basis of advice received from Branch Executives. Fourteen Branches agreed to the package. Five Branches rejected the package and three either did not hold Executive meetings or wished to refer the matter to general meetings (which the time constraints did not allow). Copies of these responses will be forwarded next week. The matter will be heard by Commissioner Baird on Tuesday 21 June. It is expected that all parties will consent to ratification of the agreement at that hearing." In the meantime, late on Thursday 16 June, Dr. Quickenden became aware of the alterations to the proposed settlement and on Monday, 20 June instituted proceedings in this Court under s.141 of the Conciliation and Arbitration Act 1904 for an order requiring the second respondents, who comprise the Federal Executive of FAUSA, to show cause why an order should not be made that:- ",..the Second Respondents perform and observe Rule 23(6) and Rule 23(2) of the Rules of the First Respondent by 8. treating as null and void and of no effect any decision of the Second Respondents authorising or purporting to authorise the First Respondent to either make an agreement or consent to an award in settlement of the industrial dispute now pending before the Australian Conciliation and Arbitration Commission between inter alii (sic) the First Respondent and the Australian Universities Industrial Association." He also sought an interim order under sub-s.141(2) in the following terms:- ",..restraining the Respondents and each of them until further Order from either making any industrial agreement with the Australian Universities Industrial Association or consenting to an award of the Australian Conciliation and Arbitration Commission in settlement of any industrial dispute concerning the terms and conditions of employment of academic staff at Australian Universities." The application was based largely on the contention that the FAUSA Executive had not notified branch secretaries of its proposed course of action as required by its rules. In relation to the telephone meetings, these, it was said, were convened without notice to the secretary of each branch and for that reasons were also in contravention of the rules. On Dr. Quickenden's ex parte application, which I heard at midday on 20 June 1988 the show cause order was made, together with an interim order in the above terms operative until 2.15 pm on 21 June or further order. Directions were given for urgent notification to the respondents. 9. On 21 June at 11.30 am, the parties appeared before the Court to contest the continuance of the injunction. The AUIA also appeared by leave although it was not joined. FAUSA sought an order discharging the injunction s0 that the Second Tier Settlement as varied might be submitted to the Commission which was to sit at 3 pm in Canberra (1 pm Western Standard Time). Dr. Quickenden, on the other hand, sought the continuance of the restraint. After hearing argument I discharged the injunction and indicated that written reasons for my order would be published later. The Question of Jurisdiction At the outset counsel for FAUSA contended that the Court lacked jurisdiction to make the order which had been made and to continue it. That submission was based on the provisions of sub-s.104(1) of the Conciliation and Arbitration Act 1904 which required the jurisdiction of the former Australian Industrial Court to be exercised by not less than three judges, save for certain classes of proceeding set out in sub-s.(2), none of which include an application under s.141 of the Act. The proposition was a novel one and depended on the submission that upon the transfer of the jurisdiction from the Australian Industrial Court to the Federal Court of Australia the 10. limitations on the exercise of that jurisdiction, imposed by sub-s.104(1), were also imposed in relation to the Federal Court. In this respect however, I have regard to the provisions of s.118A introduced into the Act in 1978 by which the transfer of jurisdiction was effected:- "118A(1) On and after the date of commencement of this Part — (a) the jurisdiction and powers expressed by this Act to be vested in or exercisable by the Court or a Judge of the Court are, except in relation to matters in respect oof which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and (b) a reference in this Act to the Court (other than in sections 104, 105, sub-sections 111(1) and (2) and sections 114, 115, 116, 117, 118 and 184) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as s0 vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division. (4A) Subject to sub-section (4B), the original jurisdiction of the Federal Court of Australia under this Act (including, subject to sub-section (4C), its jurisdiction to punish contempts of its power and authority in relation to that jurisdiction) shall be exercised in the Industrial Division by a single Judge. (4B) The original jurisdiction of the Federal Court of Australia under section 107, 108, 112 or 143, and the appellate jurisdiction of that Court under section 113, shall be exercised in the Industrial Division by a Full Court." 11. There is provision for reference of proceedings before a single judge to the Full Court and that provision is set out in s.118C of the Act:- "118c(1) A single Judge of the Federal Court of Australia exercising jurisdiction in any proceedings under this Act - (a) may, at any stage of the proceedings and either on the application of a party or his own motion; and (b) shall, upon application by the Minister at any stage of the proceedings, order that the proceedings be heard and determined by a Full Court. (2) Where such an order is made, a Full Court of the Federal Court of Australia has jurisdiction to hear and determine the proceedings and may have regard to any evidence given, or arguments adduced, in the proceedings before the single Judge." Having regard to the provisions of those sections and the fact that 5.104, upon which the first respondent relies, is to be found in Pt. vof the Act specifically dealing with the Australian Industrial Court, I was left in little doubt that jurisdiction can be exercised, as it has been on many occasions already, by a single judge of this Court. This was certainly the view of Keely J. in Thompson v Townsend (1979) 36 FLR 143. In that case a single judge of the Court had referred proceedings under ss.140 and 141 to a Full Court for hearing and determination pursuant to s.118Cc. The question before his Honour was whether, in such a case a single judge could make interim orders under sub-s8.140(10) and 141(2) pending the hearing of the substantive application by the Full Court. His Honour held that the power 12. could be exercised by the Court constituted by a single judge and he said (at p.146):- "Section 118A(4A) provides (inter alia) that the original jurisdiction of the court under s.140 and s.141 of the Act "shall be exercised by a single Judge". The single judge in exercising that jurisdiction "may, at any stage of the proceedings ... order that the proceedings be heard and determined by a Full Court" (s.118C). In my view the exercise of that power under s.118C in matter V.No. 12 of 1979 does not operate to require that the power conferred upon the court by s.140(10) and s.141(2) be exercised by a Full Court." For these reasons I do not accept the submissions from FAUSA as to the jurisdiction of the Court. Having regard to the extreme urgency of the matter and the importance of those submissions, it will be open to counsel for FAUSA to endeavour to persuade the Court to a different view at the substantive hearing if he so wishes. Following the submissions as to jurisdiction, argument continued on the merits, but before turning to that debate it is necessary to restate the principles which govern the grant of an interim restraint. Principles Governing the Grant of an Interim Restraining Order under Section 141(2) It would not be prudent to lay down any general principles applicable to the full range of interim orders which may be authorised by sub-s.141(2). But, in so far as an interim 13. restraining order in the nature of an interlocutory injunction is sought, there is no reason why the principles developed to regulate the grant of such relief under the general powers of superior courts should not be applicable. The policy underlying the grant of the power to make such orders in proceedings brought under 8.141 is a familiar one and is set out in the judgment of Mason and Murphy JJ. in R v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 at 213:- "The history of sub-s.(2) suggests that in its present form it is designed to enable the Court to make any interlocutory order which will safeguard the position and interests of parties pending a final determination, provided that it bears a relationship "to the matters to which the proceedings relate"." In Thompson v Townsend (supra) at 147 Keely J. seems to have accepted, albeit it was conceded in that case, that the relevant principles are no different from those to be observed in dealing with applications for interlocutory injunctions. His Honour went on to apply the test enunciated by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622-623. The requirements of a prima facie case and favourable balance of convenience in that test have been either supplanted or equated to the criteria that the applicant for relief show a serious question to be tried and that the balance of convenience favours the grant of the relief - Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (No. 2) (1984) 54 ALR 730, 734 (Full Court); Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425 (Gibbs 14. CJ); Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283, 294 (Brennan J.); State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243, 244 (Gibbs Ca); Castlemaine Tooheys Ltd v State of South Australia (1986) 67 ALR 553 (Mason ACJ). The two criteria are not independent:- ",..an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it." - Bullock v The Federated Furnishing Trades Society of Australasia (No. 1) (1985) 5 FCR tt, a7Z. The exercise of the court's discretion in a case such as the present may also be affected by the impact of the proposed restraint upon the interests of third parties - OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270, 282-283. The preceding are the principles which I apply in determining whether or not the interlocutory relief already granted in this matter should be continued or discharged. In sg50 determining it is important to make the point that in hearing a claim for interlocutory relief the Court does not decide finally any issue in the case. The views expressed at this stage of the proceedings are expressed only for the purposes of deciding upon the continuance or discharge of the injunction. The admissibility of evidence at the final hearing is regulated by rules which may not be the same as those applicable at the interlocutory stage. 15. What is accepted then as evidence before the Court may be different from that which is admitted for the purposes of these proceedings —- Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia (1983) 51 ALR 79, 87 (Lockhart J.); Barneys Blu-crete Pty Ltd v Australian Workers' Union (1979) 43 FLR 463, 465-466 (Northrop J.). The Registered Rules of FAUSA Eligibility for membership of the Association is conferred on persons employed or usually employed in or in connection with universities in the States and Territories of Australia in various classifications which are listed in the Rules but fall within the general class of academic staff. By Rule 15 the Association is divided into branches, each of which is organised by reference to the University in or in connection with which its members are employed. Rule 16 provides for a Federal Council which, subject to succeeding provisions of the Rules, is the supreme governing body of the Association which shall meet from time to time in annual general meeting and in special meeting. The Council comprises two federal councillors, elected by each branch and members of the Federal Executive. Among the powers of the Federal Council set out in Rule 18 are the powers to:- ee 16. "(d) Make, or authorise the Federal Executive to make, claims or demands relating to rates of pay or conditions of employment on behalf of members of the Association. (e) Submit any claims, demands, matters or disputes to the Commonwealth Conciliation and Arbitration Commission, or such other Court or body as may be necessary for determination or settlement. (1) Delegate its authority in any matter to the Federal Executive except this power of delegation." The composition, powers and duties of the Federal Executive are set out in Rule 23. It is to consist of the Federal President, the two Federal vice Presidents and four Executive members. Sub-rules 23(2) and 23(6), which are of central importance for the present application, are as follows:- "(2) The business of the Association shall be managed by the Executive subject to any decisions or resolutions made or passed by the Federal Council; and where there is no relevant decision or resolution of the Federal Council concerning the matter: (a) The Executive shall take no step which infringes the autonomy of a Branch. (b) The Executive, on taking any course of action or deciding to take any future course of action, shall notify the Secretary of each Branch of its action; and (c) I£ more than one-third in number of the Branches objects in writing thereto, the Executive shall not continue with its course of action or implement the proposed future course of action until the approval thereto of the Federal Council has been given, save that notwithstanding anything herein contained the Executive is deemed to have full power to enter into contracts of charter as defined in rule 4(u) hereof and in this respect the (6) 17. actions of the Executive shall be in no way affected by the fact that there is or is not a relevant decision or resolution of the Council concerning the matter. The Executive shall meet as often as it considers necessary and in any event on not less than four occasions between any two consecutive Annual General Meetings of the Federal Council. The President shall cause a notice convening each meeting of the Executive and the agenda for such meeting to be sent to each member of the Executive and to the Secretary of every Branch. One representative of each Branch may attend any meeting of the Executive as an observer provided that the expenses of attendance shall be borne by the Branch unless the Executive otherwise directs. Every such observer may, with the permission of the Executive participate in the discussion of any item on the agenda but shall not be entitled to vote." Rules 32 and 33 provide for federal arbitration proceedings and industrial agreements as follows:- "32. (1) (2) (3) (4) FEDERAL ARBITRATION PROCEEDINGS Subject to sub-rule (3) of this rule any member of the Federal Executive shall have power and authority to lodge or file any claims, demands, disputes or other matters with the Commonwealth Conciliation and Arbitration Commission or such other tribunal court or body as may be necessary to file or lodge same for determination. The Association may be represented at the hearings of any such claim, demand, dispute or matter by such persons as the Federal Executive may decide. No claim, demand, dispute or other matter relating to a University in or in connection with which a Branch is organised shall be made lodged or filed by the Federal Executive without consultation with that Branch, subject to sub-rule (4) of this rule. Where a dispute regarding the making, lodging or filing of any claim, demand, dispute or other 33. 18. matter under subrule (3) of this rule exists between the Federal Executive and a Branch Committee the Federal Executive shall if 50 requested in writing by the Branch Committee defer any action and submit the matter which is the subject of the dispute to all other Branch Committees for consideration and shall forward to all such Branch Committees any argument in writing prepared by the Branch Committee first mentioned which the said Committee requests to be 50 forwarded. Each Branch Committee shall forward to the Federal Executive its view on the matter in dispute and the Federal Executive shall then determine afresh the view of the Association on the said matter. FEDERAL INDUSTRIAL AGREEMENTS The Federal Executive shall have full power and authority to negotiate and enter into industrial agreements. Such agreements may be signed on behalf of the Association by the Federal President or by one of the Federal Vice-Presidents." There is provision for notices to be given under Rule 40 in the following terms:- "(1) (2) Every notice required by these rules to be given by the Federal President shall be in writing and shall be sent by prepaid mail to the address of the person to whom it is required to be sent, as supplied to the Federal President for the giving of notices to that person. Any person who fails to supply the Federal President with an address for the giving of notices shall be deemed to have an address at his or her last known place of work or residence. Where a notice is sent by mail, service of the notice shall be deemed to be effected by properly addressing, pre-paying, and mailing an envelope containing the notice, and to have been effected in the case of notice of a meeting on the day next following the day of mailing, and in any other case at the time when the envelope would be delivered in the ordinary course of mail." 19. The powers and duties of Branch Officers are set out in Rule 54, sub-rule (1) of which relates to the Branch President:- "(1) The Branch President shall: (a) (b) (c) (d) (e) be the official head of the Branch; preside at all general Branch meetings of the Branch and at all meetings of the Branch Committee and preserve order thereat so that business may be conducted in due form, with propriety and in conformity with such Standing Orders as may from time to time be adopted by the Branch. sign all documents requiring his or her signature as official head of the Branch; instruct the Branch Secretary to call all general meetings and Branch Committee meetings. generally ensure the well being of the Branch and the carrying out of the objects of the Branch = and Association." And sub-rule (3) relates to the position of Branch Secretary:-— (a) (b) (c) (d) (e) (f) The Branch Secretary shall: be the officer to be sued or to sue for or on behalf of the Branch; call and attend all meetings of the Branch and _ the Branch Committee and enter minutes of the business transacted at such meetings in the minute book; conduct the business and correspondence on behalf of the Branch under the advice of the Branch President; keep a register of members of the Branch and of the Branch Committee and immediately notify the Federal President of any changes to the same; receive all moneys and pay the same to the credit of the Branch in such bank, as the Committee of Management may from time to time decide; issue receipts for all moneys received on behalf of the Branch; 20. (g) record and report to the Branch Committee all industrial and other matters affecting the interests of the Branch or the Association; (h) subject to any direction of the Branch Committee appoint, engage, control and dismiss such clerical other staff as may be necessary for the conduct of affairs of the Branch; (1) keep such records and prepare such returns as may required by the Commonwealth Conciliation and the be and Arbitration Act or under the State Industrial legislation; (j) carry out such other duties as the Branch Committee from time to time direct." The Alleged Breaches of the FAUSA Rules Dr. Quickenden's principal complaint was that the Federal Executive had failed to comply with the rules by omitting to send to the branch secretaries notice of its proposal to agree to the varied second tier settlement. The proposal, it was said, related to a "future course of action" within the meaning of sub-rule 23(2)(b) which requires notice to be given to the secretary of each branch. It may be accepted that the reference to a "future course of action" must be read down to exclude the trivial. However wide the exclusions necessary to give practical effect to the rule, it is clearly arguable that the proposed variations to the second tier settlement were of sufficient significance to attract its application. may 21. Assuming the application of the rule in this case, the evidence that notice of the proposed variations were sent to branch presidents and not to branch secretaries discloses a case of formal rather than substantial non-compliance. It is important to note that the rules lay down no procedure' to be followed by a secretary in receipt of a notification under sub-rule 23(2)(b). Clearly enough, the secretary in such a case may call a meeting of the branch or its committee, or conceivably do neither. The president of the branch has' the power to instruct the secretary to call general meetings and meetings of the branch committee. There may be an argument that notification of a proposed course of action to the president rather than the secretary amounts to substantial non~compliance with the rule and alternatively, non~compliance with a necessary condition of the decision-making power of the Federal Executive. But the formal nature of the point taken does not inspire confidence in its ultimate success. It may be that the president of Dr. Quickenden's branch decided not to consult the membership about the proposed variation. If that be right, it is a matter between the president and the members. It does not flow from any failure to give notice to the secretary. The secretary is under no obligation on receipt of such a_ notice to consult the members. He or she might simply refer it to the president or to the branch committee. The significance of the notification requirement must also be weighed against Rule 33 which may be seen as a special provision which, in 22. relation to industrial agreements, exonerates the Executive from the general duty of consultation imposed in Rule 23. That question was not fully argued and having regard to the mature of these proceedings, it is not necessary that I express any concluded view beyond noting that it is a factor weighing in the balance against the applicant's objection. Dr. Quickenden's counsel also submitted that the two telephone meetings of the Federal Executive on 9 June and 15 June respectively were not the subject of "notice" as required by sub-rule 23(6) in accordance with the procedures laid down in Rule 40. In that respect he makes an arguable case. It would seem to have less significance in relation to the telephone meeting of 9 June than that of 15 June. The former had no more dramatic consequence than a decision to refer the revised settlement to the branch presidents. On the evidence, it is reasonable to suppose that no substantive decision was taken on that day. As to the meeting of 15 dune, it clearly did not comply with the requirements of Rule 23(6). In the context of this application for interlocutory relief it is the substance and effect of the non-compliance that must be examined. There is no suggestion that any member of the Executive did not have actual notice of the telephone meeting or lacked knowledge of the business to be dealt with at that meeting. In the circumstances, the way in which the meeting was conducted and the failure to give notice of it to branch secretaries deprived the branches 23. of the opportunity to have non-voting observers present at it. Given that it seems the meeting was called to make a decision on the varied second tier settlement in the light of the reaction to memoranda sent to presidents of all the branches, the loss of such opportunity seems somewhat academic. That is not to say that there may not have been in some cases inadequate or no real consultation between branch executives and their members about the proposal. But it is difficult to see how any such deficiency could be attributed to the Federal Executive. In summary, I am satisfied that on the second limb of Dr. Quickenden's case, so far as it relates to the meeting of 15 June, there is a serious question to be tried, but again it strikes me more as a question of form than substance. The grant of final relief under s.141 is discretionary and the question whether there has been substantial harm flowing from the alleged non-compliance is, in my opinion relevant, although not necessarily decisive, in the exercise of that discretion. It is therefore relevant to an assessment at this stage, of the applicant's prospects of success —- that is, assuming there is a serious question to be tried, is there a strong case for the grant of final relief? 24. In my opinion, which, as I have emphasized earlier, is provisional only and formed for the purpose of this interlocutory issue, Dr. Quickenden, while raising arguable points, has not made out a_ strong case for the grant of the relief he seeks. On the balance of convenience, it is clear that the entitlement of university academics throughout Australia to a 4% increase in their salaries depends upon the proposed consent award being made by the Conciliation and Arbitration Commission. To delay the submission of the agreement to the Commission would involve considerable inconvenience and possible pecuniary loss to very many people employed in universities. In assessing the inconvenience and possible loss, I should add that I do not attach great weight to the oral evidence of FAUSA's industrial officer suggesting that Commonwealth funding for the proposed increase might not be made available at all if the settlement does not take effect before 30 June. This suggested consequence of delay was by way of extrapolation from discussions which the witness had had with the Minister, touching on the need for agreement to be reached and the settlement resolved by that date. I cannot accept that the delay of a week or two by reason of an interim order of this Court could reasonably be expected to generate the rather apocalyptic consequences suggested. on the other side of the balance of convenience, Dr. Quickenden can argue that the terms and conditions of his employment as 25. a member of the academic staff of the University of Western Australia, will, if the settlement is approved, undergo significant change in areas to which reference has already been made and that such change cannot easily be reversed. It appears clear from _ the papers that there will be a considerable number of academics who do not welcome the changes and indeed it appears that fFAUSA feels it has been compelled to accept them because of pressure put on it and on the universities by the Minister. To say that is not to say that the changes will be detrimental and as to that I can make no judgment. On the evidence before the Court so far, I am satisfied that Dr. Quickenden has shown a serious question to be tried. It seems to me, however, that the questions he has raised relate more to matters of form than substance. Having regard to the discretionary character of the final relief sought, I cannot view his case for the grant of that relief as a strong one. It would require a marked balance of convenience in his favour to support the continuance of the interim order. In the circumstances I am not satisfied that that marked balance of convenience has been demonstrated and the injunction granted on 20 June 1988 will be discharged. 26. I certify that the preceding twenty five (25) pages are a true copy of the Reasons for Judgment of his Honour Justice French. Associate: Delrero~ WS Date: Qn. duct 198% Counsel for the Applicant: Mr P. Gethin Solicitors for the Applicant: Patrick J. Gethin Counsel for the First Respondent: Mr S. Edwards Solicitors for the First Respondent: Messrs. Northmore Hale Davy & Leake No appearance was made by the Second Respondents: Counsel for Australian Universities Industrial Association: Mr T. Casperz Solicitors for Australian Universities Industrial Association: Messrs. Mallesons Stephen Jaques Date of Hearing: 21 June 1988 Date of Judgment: 21 June 1988