IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) NO: VI 1809 of 1994 VICTORIA DISTRICT REGISTRY ) BETWEEN: FREDA BOGAR Applicant and G. CAMPBELL, D. CAMERON, D. HARRISON, J. CORSETTI, D. GOODGER, G. HARRIS, I. JONES, B. FRASER, S. MAURICE, N. MARSHALL, J. ROYLE, J. SPEIGHT, M. NICOLAIDES, R. KEATING, M. TUMBERS, D. MOWBRAY, J. SHARP-COLLETT, K. PECKHAM, G. ADAMS, D. SMITH, P. NOACK, C. FRIZZIERO, B. MARTIN, P. JOHNSTON and M. McGILL Respondents REASONS FOR JUDGMENT 18 AUGUST 1995 KEELY J. On 5 October 1994 a rule to show cause was granted which called upon the respondents to show cause why certain orders should not be made, including the following orders. "1. That the respondents, by themselves, their servants or agents, or otherwise, perform and observe the rules of the Automotive, Food, Metals and Engineering Union ("the union") by treating the office of Federal Secretary - Food and Confectionery Division ("the division") of the union currently held by the applicant, as a full-time paid position on and from 2nd September, 1994. 2. That the respondents, by themselves, their servants or agents, or otherwise, perform and observe the rules of the Automotive, Food, Metals and Engineering Union ("the union") by paying the applicant wages and all other emoluments of office in the same amounts as those paid to the Federal Secretaries of the other divisions of the union, for the period commencing 2nd September, 1994, and continuing while the applicant remains in the office of Federal Secretary - Food and Confectionery Division ("the division") of the union." After hearing counsel for the parties on 7 October 1994 the court on 12 October 1994 made interim orders, including one in the following terms: "The respondents, by themselves, their servants or agents, or otherwise, perform and observe the rules of the Automotive, Food, Metals and Engineering Union by paying to the applicant a salary equivalent to the salary that is paid to the person currently holding the office of Federal Secretary of the Vehicle Division of the union, such payment of salary in respect of the period commencing on 2 September 1994 to be made within 7 days and such payments to continue pending the final determination of the proceedings or further order." On 8 and 16 March 1995, the court heard counsel for the parties on a motion by the applicant for an order "that the Respondents not be permitted to tender in evidence and rely upon the affidavits of [Messrs. G. Campbell, W. Watson and T.D. Ryan, which had been filed on behalf of the respondents] or any oral or other evidence to the same effect." The court on 24 March 1995 upheld the applicant's motion as to much of the material in each of the three affidavits. It did not rule against the admissibility of the remaining parts of the three affidavits, which included the history of the rules of the union and of unions which had existed before certain amalgamations took place, namely, the Confectionery Workers Union of Australia and the Food Preservers Union of Australia. Factual matters not in dispute The respondents admitted that at all material times: 1. The applicant was a member of the Automotive, Food, Metals and Engineering Union ("the union"), which is and was an organisation of employees registered under the Industrial Relations Act 1988 (Cth). 2. The applicant together with the respondents comprised the National Council of the union. The applicant together with the first eight respondents, comprised the National Administrative Committee of the union. The first respondent [Mr. Campbell] was the National Secretary of the union. 3. The rules of the union ("the rules") provide for the union to include three divisions, namely, the Technical and Supervisory Division (rule 43.4), the Vehicle Division (rule 45.4) and the Food and Confectionery Division ("the Division") (rule 47.4) and the applicant is and was a member of the Division. 4. As a result of having been elected by the members of the Division in August, 1994, the applicant has, since 2nd September, 1994, held the office of Federal Secretary of the Division; the powers and functions of that office appear in rule 47.12 (a) - (m), the full terms of which are set out later in these reasons. 5. Rule 47.12 (a) provides that the applicant, as Federal Secretary of the Division, shall hold office as Assistant National Secretary of the union and perform the duties of Assistant National Secretary under these rules. The contentions as to the first basis of the applicant's case The first basis for the applicant's case was that:- "Rule 47.12(n) makes it clear that the office of the Federal Secretary - Food and Confectionery Division of the union is intended under the Rules to be a full-time paid office. It is contended that there would be no purpose for the rule unless neither of the offices referred to therein were otherwise to be honorary." The respondents contended that, as a matter of construction, "the combined effect of Rule 5.2 and Rule 48.4 result in the position of Federal Secretary, Food and Confectionery Division/Assistant National Secretary being an honorary position." It may be noted that their contentions stated that the "result of reading Rule 5.2 with Rule 48.4 is that unlike all other Assistant National Secretaries, the Assistant National Secretary who has that position as the holder of the office of Secretary of the Food and Confectionery Division is the holder of only an honorary office." Rule 5 is headed National Council and sub-rule 5.2 provides as follows: "The National President, the National Secretary, Assistant National Secretaries and National Organisers shall be full-time National Officials who shall be elected in accordance with these Rules and subject to the provisions of Rule 48.4." Rule 48 is headed "Transitional Rule" and sub-rule 48.4 provides: "4. Where the honorary position of Federal Secretary, Food and Confectionery Division/Assistant National Secretary, is held by a person holding the office of Regional Secretary, Food and Confectionery Division, that person shall hold office as a National Conference delegate by virtue of his/her office as Assistant National Secretary. The branch of which the person is Regional Secretary shall be entitled to elect an alternate delegate to National Conference in lieu of the Regional Secretary. Where the Regional Secretary ceases to hold the dual positions, he/she shall resume office as a delegate to National Conference by virtue of holding the office of Regional Secretary." Rule 48 contains three sub-rules and then a Schedule - see pages 150-154 of exhibit B1, page 150 being a blank sheet except for the page number and the heading "Schedule". Sub-rules 4, 5, 6, 7, 8 and 9 of rule 48 appear on pages 154 and 155, immediately after the end of the Schedule. The applicant's response to the respondents' contention was that rule 48.4 was only a transitional rule and that once the elections referred to in that rule had taken place the transitional rule had no further work to do; the respondents denied that "there was any time limit on rule 48.4." It will be noted that the rules also contain transitional provisions in rule 44 and again in rule 46. Each of those rules is preceded by a "Special Enabling Rule" dealing with particular amalgamations. Similarly, rule 48 is a transitional rule and it is preceded by rule 47, a "Special Enabling Rule", dealing with the "Amalgamation of AMEU and CW & FPU". Sub-rule 47.1 provides that the provisions of rule 47 are "Subject to the transitional provisions contained in Rule 48 . . . ". In my opinion rule 48 was plainly intended to deal only with the transition and, as far as the office of Federal Secretary of the Food and Confectionery Division was concerned, sub-rule 48.4 had no further work to do after 1 September 1994 (see the dates on pages 151-154 of the rules). In my opinion sub-rule 48.4 was not intended to make the "position of Federal Secretary, Food and Confectionery Division/Assistant National Secretary" an honorary office; the sub-rule was inserted in order to expressly entitle a branch "to elect an alternate delegate to National Conference" in the circumstances it described. I accept the submission by the applicant's counsel that the word "honorary" in the sub-rule was used in the sense of "where the position is honorary." As to the first basis of the applicant's case I accept the submissions by her counsel that rule 47.12(n) should be construed as showing an intention that the office of Federal Secretary - Food and Confectionery Division is to be a full-time paid office. Having considered the submissions to the contrary by the respondents' counsel, which relied partly upon submissions advanced by them on 16 March 1995, I am unable to uphold them. Their submissions relied strongly upon rule 5.2 and rule 48.4, including the words in rule 5.2 "subject to the provisions of Rule 48.4." The contentions as to the second basis of the applicant's case The second basis for the applicant's case was that "the range of duties and responsibilities which the holder of the applicant's office is required to discharge under the rules, is consistent only with that office being a full-time paid office." In that connection the applicant's counsel relied upon rule 47.12 of the rules as showing that that office has a significant executive role in the union. It should be noted that, after counsel for the parties had discussions on the first day of the hearing, the court was told (transcript 7) that the parties had agreed that they would not rely on evidence as to the manner in which the various powers and functions were being performed, or the time involved in exercising those powers and functions. The court was told that that ". . . would leave the court with a narrow, finite issue to be determined presently and that is a matter of construing the rules with a view to determining whether the office that Ms Bogar holds is truly a full-time paid office or not." Rule 47.12 provided that: "The Federal Secretary - Food and Confectionery Division shall:- (a) Hold office as Assistant National Secretary of the Union and perform the duties of Assistant National Secretary under these rules; (b) Attend all meetings of the Food and Confectionery Division Conference and Federal Executive and ensure that accurate minutes are kept; (c) Call meetings of the Food and Confectionery Division Conference and Federal Executive; (d) Be responsible for the day to day direction of the work of salaried officers attached to the Federal Office of the Food and Confectionery Division; (e) Subject to the approval of the National Council and National Secretary:- (i) select persons to be employed or attached to the Food and Confectionery Division in the capacity of salaried officers; (ii) where the office of the Food and Confectionery Division is situated separately from the office of the Union be responsible for the day to day management of the clerical and administrative staff and the selection and termination of employment of such staff; (iii) where the office of the Food and Confectionery Division is integrated with the rest of the Union be involved in the selection and termination of employment of persons involved in an administrative clerical capacity who are primarily allocated to work with the Food and Confectionery Division; (f) Attend to the management of the Federal Office of the Food and Confectionery Division; (g) Implement the decisions of the National Conference, National Council, National Administrative Committee, Conference of the Food and Confectionery Division and Federal Executive of the Food and Confectionery Division; (h) Attend to, answer and keep and produce copies of all correspondence addressed to the Federal Office of the Food and Confectionery Division; (i) Publish and distribute information and material of interest to members of the Union in the Food and Confectionery Division; (j) Represent the Union in any industrial dispute affecting members of the Food and Confectionery Division only in more than one state; (k) Subject to decisions of the Food and Confectionery Division Conference or the Food and Confectionery Division Federal Executive, enter into industrial agreements limited to members attached to the Food and Confectionery Division in more than one state; (l) Carry out such other duties as may from time to time be assigned to him or her by the Food and Confectionery Division Conference, Federal Executive, National Conference, National Council, National Administrative Committee or National Secretary, and; (m) Act on all matters concerning the Food and Confectionery Division in more than one region; (n) Notwithstanding anything provided elsewhere in these rules the Federal Secretary - Food and Confectionery Division may also occupy the office of Regional President or Regional Secretary provided that he or she shall occupy one of those offices on an honorary basis." Senior counsel for the respondents would not concede that a person could not carry out the duties and responsibilities of that office if he or she had a full-time position elsewhere. I am unable to agree with the implied proposition that he or she could do so. In Ludwig and others v Copeland and others (judgment delivered 9 June 1995 - not yet reported) Wilcox CJ, Ryan and Moore JJ dealt with a resolution which purported to amend the rules of a union in such a way "that the offices held by the respondents were intended to be converted from full-time positions to honorary positions." Although the issue before the Full Court was different, I adopt, with respect, the following observation by their Honours:- "In terms of the contribution that the office-bearer may make to the work of an organisation there is, of course, a major difference between a full-time paid office and an honorary office held by someone who needs to earn a living in another occupation." In support of the second basis of the applicant's case it was pointed out that the terms of rule 47.12 are the same as the description of the powers and functions detailed in the rules for the Federal Secretary of the Vehicle Division of the union; the salary being paid to the holder of that office was $969.57 per week. Having considered carefully the terms of rule 47.12 and the rules as a whole, I accept the submission by the applicant's counsel that the nature and the range of the powers and functions of the holder of the office of Federal Secretary - Food and Confectionery Division are such that the rules require that the office be a full-time office. The provisions of rule 47.12, although extensive and detailed, are, of course, not the only references in the rules to the functions and powers of the Federal Secretary - Food and Confectionery Division. There are references to them in the following rules and sub-rules: 47.6 (a)(vi) and (b)(ii) 47.8(c), (d), (e), (f), (h), (j)C, (j)D and (j)G 47.9 (d), (f), (h)A, (h)B, (h)C, (h)D and (h)G 47.9 AA (b), (d) 47.28 (d) It shall be noted that, under 47.9(a)(iii) and (b), the Federal Secretary - Food and Confectionery Division is a member of the Federal Executive and as such is one of the "Federal Officers" of the Division; further, that under (e) the Federal Executive has all the powers of the Food and Confectionery Division Conference when the Conference is not in session. Reference may also be made to rule 47.9A which provides that: "Subject to the approval of the National Council and the National Secretary there shall be attached to the Federal Office of the Food and Confectionery Division such number of salaried officers as are necessary for management of the affairs of the Food and Confectionery Division." Having regard to the agreement between the parties (referred to earlier in these reasons) that they would not rely on evidence as to the manner in which the powers and functions of the Federal Secretary - Food and Confectionery Division were performed, I have not formed any opinion as to what "number [if any] of salaried officers . . . are necessary for management of the affairs" of the Division. For the above reasons I have accepted the second basis of the applicant's case. I have not accepted the submissions to the contrary by the respondents' counsel, including their submissions as to the wording of the rules of unions before the latest amalgamation. The orders sought by the applicant At the conclusion of the hearing the applicant's counsel stated (transcript 132-134) that the applicant asked that order 1 be made, that the further hearing of the application in relation to order 2 of the rule to show cause be adjourned to a date to be fixed with liberty reserved to all parties to apply, and that, pending the final determination of the matter in relation to order 2 of the rule to show cause, the interim order made on 12 October 1994 continue in force. The respondents' counsel stated that, if the court upheld the applicant's case, they did not seek to put any submissions as to the form of those orders proposed by the applicant. Those orders will be made. I certify that this and the preceding seven (7) pages are a true copy herein of the reasons for judgment of the Honourable Justice Keely. Associate: Date: 18 August 1995 Solicitor for the applicant : Slater and Gordon Counsel for the applicant : Mr. H. Borenstein Solicitor for the respondents : Taylor and Scott Counsel for the respondents : Mr. W.R. Haylen QC Mr. P.J. Wallace Date of hearing : 10 and 11 April 1995 Date of judgment : 18 August 1995 IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) No. VI 1809 of 1994 VICTORIA DISTRICT REGISTRY ) BETWEEN FREDA BOGAR Applicant and G. CAMPBELL, D. CAMERON, D. HARRISON, J. CORSETTI, D. GOODGER, G. HARRIS, I. JONES, B. FRASER, S. MAURICE, N. MARSHALL, J. ROYLE, J. SPEIGHT, M. NICOLAIDES, R. KEATING, M. TUMBERS, D. MOWBRAY, J. SHARP-COLLETT, K. PECKHAM, G. ADAMS, D. SMITH, P. NOACK, C. FRIZZIERO, B. MARTIN, P. JOHNSTON and M. McGILL Respondents CORAM: Keely J. PLACE: Melbourne DATE: 18 August 1995 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The respondents, by themselves, their servants or agents, or otherwise, perform and observe the rules of the Automotive, Food, Metals and Engineering Union by treating the office of Federal Secretary - Food and Confectionery Division of the union, currently held by the applicant, as a full-time paid position on and from 2 September 1994. 2. The further hearing of the application in relation to order 2 of the rule to show cause be adjourned to a date to be fixed, with liberty reserved to all parties to apply. 3. Pending the final determination of the matter in relation to order 2 of the rule to show cause the first interim order made on 12 October 1994 continue in force. NOTE: The settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. CATCHWORDS INDUSTRIAL LAW - UNION RULES - whether office of the Federal Secretary of a Division is a full-time office FREDA BOGAR v. G. CAMPBELL & Ors VI 1809 of 1994 KEELY J MELBOURNE 18 August 1995