FEDERAL COURT OF AUSTRALIA Gazzola v Slape [2001] FCA 463 JOHN GAZZOLA v PAUL SLAPE, ROBYN GLASCOTT, LEN DARNLEY, JUDITH BENNETT, BRIAN HARRIS, MICHAEL O'SULLIVAN, BRIAN SULLIVAN, BOB BALL, HENRIETTA MORAN, MICHAEL WANT, RUSSELL ATWOOD, BARRY KILBY, BRIAN SULLIVAN, GREG DAY, JIM CLEMENS, WENDY McMANUS, MIKE SPENCER, MARTIN FOLEY, TREVOR CORDWELL, LINDA WHITE, JULIE BIGNELL, ADRIAN BENNETT, KAYEE GRIFFIN, ANNE McEWEN, BRENDAN O'CONNOR, GREG MCLEAN, KRISTYN THOMPSON, CLIVE MEACHAMAND, MARGARET DALE, FRAN TIERNEY, JEFF LAPIDOS, DARRELL COCHRANE, PAUL BURLINSON, MEREDITH HAMMAT, JUNE KIRWAN-BENNETT and ANDREA BALLANTYNE Q 69 OF 2000 DOWSETT J 26 APRIL 2001 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 69 OF 2000 BETWEEN: JOHN GAZZOLA APPLICANT AND: PAUL SLAPE, ROBYN GLASCOTT, LEN DARNLEY, JUDITH BENNETT, BRIAN HARRIS, MICHAEL O'SULLIVAN, BRIAN SULLIVAN, BOB BALL, HENRIETTA MORAN, MICHAEL WANT, RUSSELL ATWOOD, BARRY KILBY, BRIAN SULLIVAN, GREG DAY, JIM CLEMENS, WENDY McMANUS, MIKE SPENCER, MARTIN FOLEY, TREVOR CORDWELL, LINDA WHITE, JULIE BIGNELL, ADRIAN BENNETT, KAYEE GRIFFIN, ANNE McEWEN, BRENDAN O'CONNOR, GREG MCLEAN, KRISTYN THOMPSON, CLIVE MEACHAMAND, MARGARET DALE, FRAN TIERNEY, JEFF LAPIDOS, DARRELL COCHRANE, PAUL BURLINSON, MEREDITH HAMMAT, JUNE KIRWAN-BENNETT and ANDREA BALLANTYNE RESPONDENTS JUDGE: DOWSETT J DATE OF ORDER: 26 APRIL 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 69 OF 2000 BETWEEN: JOHN GAZZOLA APPLICANT AND: PAUL SLAPE, ROBYN GLASCOTT, LEN DARNLEY, JUDITH BENNETT, BRIAN HARRIS, MICHAEL O'SULLIVAN, BRIAN SULLIVAN, BOB BALL, HENRIETTA MORAN, MICHAEL WANT, RUSSELL ATWOOD, BARRY KILBY, BRIAN SULLIVAN, GREG DAY, JIM CLEMENS, WENDY McMANUS, MIKE SPENCER, MARTIN FOLEY, TREVOR CORDWELL, LINDA WHITE, JULIE BIGNELL, ADRIAN BENNETT, KAYEE GRIFFIN, ANNE McEWEN, BRENDAN O'CONNOR, GREG MCLEAN, KRISTYN THOMPSON, CLIVE MEACHAMAND, MARGARET DALE, FRAN TIERNEY, JEFF LAPIDOS, DARRELL COCHRANE, PAUL BURLINSON, MEREDITH HAMMAT, JUNE KIRWAN-BENNETT and ANDREA BALLANTYNE RESPONDENTS JUDGE: DOWSETT J DATE: 26 APRIL 2001 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The Australian Municipal, Administrative, Clerical and Services Union ("ASU") is an organization of employees for the purposes of the Australian Workplace Relations Act 1996 (Cth) (the "Act"). It has various branches based upon geographical and/or "calling" criteria. The present dispute appears to arise out of differences of opinion between branches, or perhaps between one or more branches and the National Executive. It is not necessary that I become involved in these matters. The applicant and the respondents are, as I understand it, all members of ASU and are members of the National Executive and/or office bearers. Rule 47 of the rules of ASU provides as follows: "a. Industrial Agreements may be entered into and executed and may from time to time be altered, varied, modified, or cancelled by or on behalf of the Union with the authority of the National Executive. b. Any industrial agreement within the meaning of the Industrial Relations Act 1988, or any statutory modification or amendment thereof, made, entered into, or executed, or any alteration, variation or cancellation thereof shall be signed by the National Secretary or in that officer's absence the person who has been appointed by the National Executive to act as National Secretary or one of the National Executive Presidents, or other officers authorised by the National Executive. c. Any industrial agreement made pursuant to any State law, and/or made in respect of members in one Branch, may be entered into and executed, and may from time to time be altered or cancelled by or on behalf of the Union, with the authority of a Branch Executive, by a Branch Secretary, provided the National Secretary or a National Executive President, is kept fully informed of progress leading to such agreement and is supplied with a copy thereof. If the National Secretary or any National Executive President believes that such agreement may affect other members or Branches, such officer may direct that the proposed agreement not be executed and be referred to the National Executive." 2 Prior to 5 May 2000 Mr Michael Spencer, who was a branch secretary based in Queensland, entered into negotiations with a company called "Qualiflyer Group Customer Care Centres GmbH", ("Qualiflyer") seeking agreement as to the conditions upon which staff would be employed by that company. It seems that such employees would qualify for membership of ASU. Any agreement required certification by the Australian Industrial Relations Commission ("AIRC") pursuant to Part VIB Div 2 of the Act. It is common ground that an agreement made with ASU prior to the employment of any staff by Qualiflyer would be enforceable, provided that it was certified. (See s 170LL.) Such an agreement would have to be in writing. (See s 170LI.) During the negotiations Mr Spencer kept national office holders informed as to progress. On 25 May 2000, an agreement was signed, Mr Spencer signing on behalf of ASU. It seems that to this point, it was thought that his activities were authorized pursuant to subrule 47c. On 26 May the agreement was lodged with AIRC for certification. Qualiflyer had not, at that time, commenced to employ staff. 3 At about the same time Mr Slape, who is the national secretary of ASU, became aware of discontent in some other branches (ie, other than Mr Spencer's) concerning the agreement. Fairly clearly, rule 47 is designed to facilitate the resolution of such concerns. As a result, on 31 May 2000 (according to Mr Gazzola) Mr Slape indicated to AIRC, and presumably to Mr Spencer, that the latter was not authorized to sign the agreement. It may be doubted whether that indication was effective. Subrule 47c appears to authorize such a direction only as to a "proposed agreement", not as to an agreement which has already been reached. That point has not been taken in these proceedings. 4 On 5 June 2000 Mr Slape called a telephone meeting of the National Executive on 8 June to consider the "proposed" agreement. At that meeting certain members withdrew before the conclusion of business, and the meeting was adjourned for want of a quorum. On 9 June Mr Slape sent a notice to members calling for a postal ballot concerning the agreement. There has been no suggestion that this was other than in accordance with the rules. This ballot took place on and after 15 June, the result being that the agreement was approved by fifty-four votes to fourteen. I should say that the agreement as approved included some variations to that which had been signed by Mr Spencer. The amended agreement was subsequently certified by AIRC. That certification is subject to appeal, although the appeal may by now have been resolved. 5 These proceedings are brought pursuant to s 209 of the Act which, in effect, authorizes the Court, if satisfied that there has been contravention of a rule of an organization such as ASU, to make an appropriate declaration and give directions for the performance and observance of the rules. The process is curious in that traditionally, it has not involved the filing of an appropriate application. Whether that procedure continues to be correct may be doubted, but it does not matter for present purposes. The relief initially sought appears from the affidavit of Mr Reidy filed on 17 July 2000 as follows: "1. That the Respondents perform and observe the rules of … ASU … by: (a) treating as null and void and of no effect the purported industrial agreement described as the Qualiflyer Group Customer Care Centres Certified Agreement 2000 signed by Michael Spencer and Brian Penkethman on the 25th May 2000. (b) that the Respondent, Paul Slape, make application to the Australian Industrial Relations Commission on behalf of the ASU for rescission of the certificate issued by the Australian Industrial Relations Commission certifying the agreement on 16 June 2000. 2. It is declared that the agreement described as the Qualiflyer Group Customer Care Centres Certified Agreement 2000 is null and void and of no effect. 3. …" 6 In his final submissions counsel for the applicant submitted that the following order should be made: "That the respondents perform and observe the rules of … ASU … by: (a) treating as null and void and of no effect the purported industrial agreement signed by Michael Spencer and Brian Penkethman on the 25th May 2000; (b) treating resolution 6/2000 of the National Executive as authorizing the entering into and execution of an industrial agreement that is in accordance with the terms of the resolution on or after 15 June 2000; (c) the Respondent, Paul Slape, making application to the Australian Industrial Relations Commission on behalf of the ASU for rescission of the certificate issued by the Australian Industrial Relations Commission certifying the agreement on 16 June 2000, and advising it of paragraphs (a) and (b) of this order; and, or alternatively to paragraph (c). (d) The Respondent, Paul Slape, advising the Full Bench of Australian Industrial Relations Commission hearing the appeal proceedings in matter C No 40463 of 2000 of paragraphs (a) and (b) of this Order." 7 Clearly, there would be no point in making an order of the kind contemplated by subs 209(9) unless there were evidence of some contravention or threatened contravention of a rule. Although the facts of the case were canvassed in some detail in the course of argument, little attention was paid to precise identification of any such contravention. As far as I can see the applicant focuses upon the following: · the conduct of Mr Spencer in entering into the agreement; · the resolution of the National Executive authorizing the amended agreement; · the absence of a signature as contemplated by subrule 47b; · Mr Slape's appearing in AIRC to consent to certification in accordance with the resolution of the National Executive; · the certification of the agreement by AIRC; and · the subsequent failure of members of the National Executive to take steps to set aside the certification. 8 I will deal with these matters separately. Mr Spencer's conduct 9 It follows from what I have already said that I can see nothing in Mr Spencer's conduct which breached the rules of ASU. Up to the point at which he entered into the agreement he had received no indication pursuant to subrule 47c that the proposed agreement was not to be executed. Resolution of the National Executive 10 The National Executive is authorized pursuant to subrule 47a to enter into industrial agreements. It seems to be accepted that the agreement was an industrial agreement and therefore an agreement into which the National Executive was authorized to enter. In those circumstances it cannot be said that such action was contrary to any identified rule. Absence of Signature 11 Subrule 47b provides that any agreement or amendment thereof "entered into, or executed" pursuant to subrule 47a should be signed by one of certain identified persons. It is said that Mr Spencer was not one of the authorized signatories referred to in the subrule and that in any event, the amendments to the agreement, as authorized by the National Executive, were not signed by him. The applicant asserts that the agreement is therefore invalid. I do not consider that the validity of the agreement depended upon such signature. Subrule 47a authorizes the National Executive to enter into an agreement and to execute it. Whatever the purpose of subrule 47b, it is not to confer upon the national secretary any ultimate authority over the decision-making process. Absence of an appropriate signature does not invalidate the agreement. Had the agreement in its final form been presented to Mr Slape, he should have signed it, but it is not clear that this was done. Thus it cannot be said that he failed to take any appropriate action required by the rules. Actions by Mr Slape in the Commission 12 As the agreement was authorized by the National Executive, Mr Slape did not breach any rule by appearing in the Commission to carry into effect the resolution of that body. Certification 13 It is true that the Act required that the agreement be in writing. It was in writing to the extent that the original agreement signed by Mr Spencer set out the bulk of the terms and subsequent documents generated by ASU set out the balance. Whether or not an agreement must be signed in order to be in writing may be a matter for argument. The question was not ventilated before me. In any event, that question does not arise out of the rules of ASU, but under the Act. If there was any question as to the jurisdiction of AIRC to certify the agreement, it should have been determined by that body or in an appropriate appeal or review process. It is not a matter to be raised pursuant to s 209. 14 It was also argued that because Qualiflyer, between the date of execution of the agreement by Mr Spencer and the date when the National Executive ratified it, engaged staff whose employment was potentially subject to its terms, the agreement was no longer one to which s 170LL applied. It was submitted that the National Executive ought not to have ratified it or been party to its certification. The applicant identifies no specific rule which has been breached in this regard. There was some suggestion of an "implied rule", but no attempt was made to explain how or why such a "rule" should be implied. If there is any substance in this point, it arises under the Act rather than the rules and should be resolved by AIRC or on appeal or review. Failure by the National Executive or members thereof to seek to set aside certification 15 It follows from what I have said that as the agreement has been appropriately certified, there can be no breach of the rules inherent in abiding by it, nor does any rule compel the respondents or any of them to seek to set it aside. 16 The application is dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 26 April 2001 Counsel for the Applicant: Mr D Langmead Solicitor for the Applicant: Duncan Basheer Hannon Counsel for the Respondent: Mrs K Parkinson Solicitor for the Respondent: Ryan Carlisle Thomas Lawyers Date of Hearing: 27 October 2000 Date of Judgment: 26 April 2001