Peter John James and Australian Liquor, Hospitality & Miscellaneous Workers Union [1995] IRCA 18

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NI 1390 of 1994 NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: PETER JOHN JAMES Applicant AND: AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 5 JANUARY 1995 EXTEMPORE REASONS FOR JUDGMENT WILCOX CJ: This is an application for a rule nisi and an interlocutory order in respect of a matter that was commenced by the filing of an application on 23 December. At that time I gave leave for the matter to come before the Court today. Mr Maconachie QC, counsel for the applicants, has taken me in some detail through the history of the matter and the relevant rules. I have reached a clear view that there is a problem in respect of compliance with the rules only in one respect. The facts of the matter shortly are that the respondent organisation, the Australian Liquor Hospitality and Miscellaneous Workers Union, was formed as a result of an amalgamation between the two organisations, the Australian Miscellaneous Workers Union, and what was generally referred to as the Liquor Union. The amalgamation resulted in an organisation which operates in two separate divisions, one being related to the former Miscellaneous Workers Union and the other the former Liquor Union. The former Miscellaneous Workers Union had its headquarters in Sydney; the former Liquor Union at premises, 117 Leicester Street, Fitzroy, in suburban Melbourne. The rules provide for integration of some aspects of the organisation's work but for the maintenance of Divisions, and indeed Branches of Divisions. There is a council of each Division and also a Committee of Management. The evidence indicates that the Secretary of the Miscellaneous Workers Division of the organisation formed the view that it would be in the interests of the organisation as a whole, and in particular its effectiveness in regard to a number of matters arising in connection with the liquor industry, for the two divisional offices to be located in one place. He wrote a letter to his counterpart, Christine Huxtable, the Secretary of the Liquor Division on 11 November 1994. In that letter he set out a detailed proposal for what he called the "amalgamation" of offices. He talked about the integration of facilities and the sharing of resources. It appears that the proposal was discussed by the Council of the Miscellaneous Workers Division and endorsed. It was also discussed at a meeting of the Committee of Management of the Liquor Division at a meeting in Brisbane in November 1994. There was at that time an agenda item in respect of the same matter, in the name of the South Australian Branch, on the meeting agenda of Liquor Division Council. This item was withdrawn; the evidence does not reveal the circumstances of the withdrawal. It may have been thought better for the matter to be dealt with at the Committee of Management meeting; it may be, as Mr Maconachie suggests, that there was a deliberate attempt to bypass the Council. The Committee of Management decided to defer the matter pending discussion between four named individuals, two of whom represented the Miscellaneous Workers Division and two of whom represented the Liquor Division. They included the two Divisional Secretaries. I should have said that the Divisional Secretaries are also joint National Secretaries of the amalgamated organisation. It appears that an agreement was reached between the members of the working group during discussions on Thursday, 17 November and Friday, 18 November. On the following Monday morning, 21 November, when the Liquor Division Council resumed, the suggested arrangement was put before the meeting for discussion. However, it was not discussed on its merits during the presence of the applicant in these proceedings, Peter John James. Mr James is the Secretary-treasurer of the New South Wales Branch of the Liquor Division of the union. The reason for this was that Mr James took exception to the way that the matter had been handled and he, together with the other New South Wales delegates, left the meeting. The proposal was then discussed by the remaining members of Council and endorsed by them. It was subsequently endorsed by other entities within the union including the Liquor Division Committee of Management and an entity called the Transitional National Executive. As its name suggests, this entity was concerned with the gradual integration of what had been two separate organisations into a single organisation. One of the proposals included in the document approved by these bodies within the organisation was for the sale of the premises in Leicester Street, Fitzroy, and the movement of the headquarters of the Liquor Division to the premises occupied in Sydney by the Miscellaneous Workers Division. Notwithstanding the endorsement of the document, a decision was taken by the Liquor Division Committee of Management that it would be desirable for there to be a ballot of the members of the Liquor Division Council on the specific question whether the headquarters of the Liquor Division be the premises in Sydney occupied by the Miscellaneous Workers Division. A ballot paper seeking an answer to that question was dispatched to councillors, apparently on 15 December. That act immediately precipitated this proceeding. I was told that the ballot closed on 30 December. Although the result has not yet been formally declared, I was told from the bar table that councillors other than the New South Wales councillors had voted in favour. Consequently, if the court does not intervene, the organisation will work on the basis that this question has been answered in the affirmative. The significance of these facts arises out of the rules. The rules are, as Mr Maconachie says, lengthy and complex. They are divided into various sections. Rule 5 of section 1 provides that the registered office of the union shall be on the 9th floor, 187 Thomas Street, Haymarket, New South Wales. That is the former office of the Miscellaneous Workers Union and the place in which it is proposed that the Liquor Division Headquarters be relocated. The rule goes on: "There shall also be a branch of the Federal Office at 117 Leicester Street, Fitzroy, Victoria." It seems clear to me that this rule continues to apply notwithstanding any decision to relocate the headquarters of the Liquor Division to Sydney. Unless and until that provision has been deleted from the rules, there is an obligation on the organisation to maintain a branch of the Federal Office at Leicester Street, Fitzroy. Mr Nolan of counsel, on behalf of the organisation and each of the Joint National Secretaries individually, has given an undertaking to the Court that the organisation will continue to operate a branch of the Federal Office at 117 Leicester Street, Fitzroy, Victoria, until such time, if ever, as the obligation to that effect imposed by rule 5, section 1 of the organisation's rules is removed. In view of that undertaking, there is no occasion for the Court to make an order in respect of this particular rule. The next matter raised by Mr Maconachie concerns the validity of the postal ballot. He puts two submissions, in the alternative, in support of the view that the postal ballot is invalid. First, he says that the question asked in the postal ballot, which is limited to moving the headquarters of the Liquor Division, does not genuinely address the purpose of those proposing the change. In support of this proposition he relies heavily on the letter sent by Mr Lawrence to Ms Huxtable on 11 November. I am unable to read the letter in the way Mr Maconachie reads it. It seems to me that the letter makes clear that the proposal is that there be what is called an "integration" of the Divisional federal offices. This involves the sharing of staff, other resources, office accommodation, etc. The detail is not spelt out, but one can readily imagine that there would be costs savings if, for example, both Divisional Secretaries were able to have access to a single computer system. No doubt there can be some saving in office space, conference facilities, receptionists, etc. I think this is all that was proposed by Mr Lawrence in his letter. It is all that was agreed in the document approved by the Council of the Division. The union will continue to operate according to its rules, which require separate Divisions during a specified period; with their ancillary units such as Councils, Branches, etc. I do not think there is any lack of frankness in the proposal put to the ballot, which might enable one to say it is not bona fide. The second attack on the postal ballot is on the ground that it is not open to the Committee of Management to consider this a question that did not justify the convening of a special meeting of the Council. In order to put that proposition into context, it is necessary to note that the postal ballot provision is rule 26 of section 3 of the rules. Rule 26 deals with Council meetings, requiring Council meetings at least once each year. I understand that Council consists of 19 positions; but two are presently vacant, so there are at this moment 17 councillors. The bulk of the rule concerns itself with procedures at Council meetings. It is not necessary to refer to those provisions. Sub-rule (f) empowers the Divisional Federal Committee of Management: "if in any case it considers the nature of the question does not justify the convening of a special meeting of the council" to submit that question to a postal vote of the members of the Council, and the decision of the members on the vote is to have the like force as a decision made in a meeting assembled. It will be seen that the scheme of the sub-rule is to commit to the Committee of Management the question whether the nature of the issue to be determined does or does not justify the convening of a special meeting of Council. Mr Maconachie suggested that a decision as to the location of the Divisional headquarters is a matter of some moment. I do not dissent from that view. But I think it was very much a matter for the Committee of Management to decide whether a special meeting of Council was required. In making that decision the Committee of Management would have been entitled to take into account the fact, which appears to be common ground, that the proposal to move the office from Melbourne to Sydney - and, in particular, to the premises in Thomas Street which are referred to in the ballot - is not something that arose for the first time when the postal ballot was suggested. It had been discussed at a Council meeting a month or so earlier. It is a matter about which members of Council could reasonably be regarded as being informed, and probably having an opinion. Council, in the absence of the New South Wales members who had walked out, had already endorsed the report of the representatives of the two Divisions and at that time addressed their minds to this matter. I think that those background questions are matters that the Federal Committee of Management was entitled to take into account in reaching the conclusion, which it evidently did, that the nature of the question did not justify convening a special meeting of Council. Only if bad faith were demonstrated would the court be justified in holding that the ballot was invalid on this ground. The final proposition that is put is that the making of a decision by Council infringes rule 15, section 1 of the rules. That rule is concerned with the duties of the Transitional National Executive. It provides in sub-rule (a) that, prior to a date four years from the date of amalgamation, and I interpolate that the amalgamation occurred in August 1992, the Transnational National Executive shall determine certain matters. The first of these is the Divisional structure of the union following the transitional period. The sixth matter is: "The phased implementation of national standardised financial and administrative procedures throughout the union and its Divisions including the adoption of a common financial year." Sub-rule (b) requires that: "Decisions of the Transitional Executive in relation to the above matters shall be implemented in consultation with the Divisions and Branches of the union." Mr Maconachie says that the decision to move the Divisional head office to Sydney was a decision in relation to the Divisional structure of the union, and therefore falling within para 1, and also related to the phased implementation of national standardised financial and administrative procedures. I do not think it falls within either category. It certainly has nothing to do with the Divisional structure of the union which, as I have observed, remains intact. I do not think that it is really relevant to what para 6 calls the national standardised financial and administrative procedures. It does not change procedures, it simply provides for operations to be conducted in a single location, with the economies of scale that are no doubt likely to be available. In any event, even if the matter fell within item 6, I observe that that rule is an instruction to the Transitional National Executive. It is required to determine each of the matters set out in that sub-rule by a certain date. Sub-rule (b) does not require consultation in respect of the making of the decisions referred to in sub rule (a), but rather in relation to their implementation. Mr Maconachie put the matter on the basis that the transitional national executive is required to consult in relation to the making of the decisions. That is no doubt a sensible course for the Transitional National Executive to take, in the interests of peace and harmony and the smooth operation of the organisation, but it is not required by sub-rule (b). It seems to me there is nothing in this point either. It follows that the case comes down to a very narrow point, namely that a branch of the federal office must be maintained in the premises in Melbourne whilst rule 5 of section 1 remains in force. An undertaking has been given about that matter and I do not think there is any need for the Court to take it any further. Accordingly, it is not appropriate at this stage for me to grant a rule nisi or to make any interlocutory orders. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of his Honour Chief Justice Wilcox. Associate: Dated: 5 January 1995 APPEARANCES Counsel for the Applicant: J E Maconachie QC and R S Sheldon Solicitor for the Applicant: Walsh James Counsel for the Respondent: J Nolan Solicitor for the Respondent: Steve Masselos & Co Date of hearing: 5 January 1995