Dale v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [1995] ICQ 3 (1995) 148 QGIG 1067

1066 QUEENSLAN D GOV E RNMENT INDUS TRIAL GAZETTE [ 13 A pr il, 1995 13 April, 1995] Q UEENSLAND GOVERNM ENT INDUSTRIAL GAZETTE 1067 ################## #########11####1/#########llll#####l/##II## QUEENSLAND INDUSTRIAL COURT Industrial Relations Act 1990 s. 349 - d ire ctions for performance of n1 les Gary Dale AND Australian Rail , Tram and Bus In du stry Union of Employees, Queensland Branch (No . C25 of 1994) JU STICE. MACKENZIE, PRESIDEN T 3 April 1995 Application for an Order under s.349 of the lndus1rial Relations Ac1 199() - Annual General Meeting -· "Sha ll " and "May" Use d in a Dire ctory or Perm issive Sense •·- Oppress ive , Unreasonable or Unjust - Ap pe al is Di s mi ssed. JUDGMENT ·niis is an applica tion by Gary Michael Dale for an order under s.349 of the Industrial Reim ions Act 1990 that the respondents pe r fo m1 or observe Ruic 66 of the ru les of the Union. Ru le 66(1) states as follows :- "(I ) The Branch and each Brdnch Division may hold an Ann ual General Meeti ng in Ju ly of each year. The Bran ch Council or the Branch Divi sional Execut ive , as the ca5e may be, s ha ll present a repon on the busine ss of the prece ding year at such Annual General Meet in g.". Th e th reshold quest ion is whe ther th e word "may" is to he read in a mandatory sense or in a permissive sense. A pe ru sal of the rules ind icates that the wo rd s "shall" and "may" arc both used in them. The ru le s surrounding Rule 66 fre quently use "sha ll ". Rule 66 itself uses botli words. l hc fac t that the diflercn ti ation is made between "shall" and "m ay" in the rules is in my view a clear ind ication that the word "may" in Rule 66 is in tended to be used in a directory or pem1issive sen se. ·m e re is therefore power for the Oran eh and each Branch Div ision to ho ld an Annual General Meeting in July of each year, but not an obligation. 111e application inso far as it seeks lo have an order to perform th e rules made fai ls at t he threshold. In th e event tliat such a findi ng wa5 made . orders were sough t that the rules do not mee t tlie requ irements of s.3 37 and 338 of the Act, or th at the rule is oppressive, unreasonable or unjust within the meaning of s.337(d). Resort was had to the objects of the Act and in particular s.3(h) which i, c<mcemcd wi t h: - "Lo encourage the democratic control of industrial organisations, and the participation by th e ir members in the affairs of industrial organisations; ". There wa5 evidence that the practice of the Union is to hold a Branch Council meeting every year at which delegates from the various Branch Divisions attend. Reports, includ ing financial reports, are presented. The Union's view is that it would be impractical and unduly expensive to con vene an Annual General Mee ti ng of all members of the Uni on because of the dispersal of the membership throughout the State. It was contended that, given the structure of the Union, the arrangement was an adequate means of ensuring that the affairs of the Union could be s cru ti nised. Whether individual members agree or not is no t the cruci al question. 1l1e context of the Act is the governing factor. Because of that, the applicant faces the insurmountable obstacle, in attempting to persuade me that the rule is oppressive, un reasonable or unjust, that the Act, whi le making numerous provisions as to the content of rules, does not require the holding of an Annual General Meeting as a minimum requ irement of the rules. Having regard to the policy that can be deduced from the Act in that respe,ct I am unpersuaded that the rule ought to be categorised a~ oppressive , unreasonable or unjust. The appeal is d is missed. Dated this third day of Ap ri l, 1995 . K.G. W. MACKENZIE, Presid ent. Appearances: - Mr L Boccabella (instructed by McPhee Poo le) fo r Mr G. Dale M.r F. Dawson (of Cleary Hoare), wi th him Mr L. Crofton and Mr T. Cam pbell, for the Austral ian Rail, Tram and Bus Industry Union of Emp loyees. Queensland Branch. Operative Da te: NIA Judgmenl - Gary Da le and Austra li an Rai l. Tram and Bus Industry Un ion of Employees, Queensland Branch Released: 3 April 19.95 ll##########ll#########li####ll###### /1###11############### 11### -- 1 of 1 --