Brisbane Branch of the United Firefighters' Union of Australia, Union of Employees, Queensland v United Firefighters' Union of Australia, Union of Employees, Queensland [1991] ICQ 10 (1991) 138 QGIG 676

676 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 November, 1991 THE INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1990- 1991 s. 13.23 - application for directions for_p_erformance rules s. 8.22 - execution of dec1s1on Brisbane Branch of the United_ Firefighters' Union of Austraha. Uruon of Employees, Queensland AND United Fi refigh ters' U nion of Australia, Union of Employees, Queensland (No. C22 of 1991 ) JUSTI CE MOYNIHAN, PRESIDENT I I October 1991 Application for Order - Order - Union Rules -. Legal Entity of Union Branch - Meetin_gs -:- No. Breach of Union Rules - No Basis for Relief - Apphcat1on D1sm1ssed . JUDGMENT This an application mad~ by a member oft~~ United Fi.~efighters' Union of Australia, Umon of Employees ( the Umon ) who 1,~ described as "being authorised to represent the Bnsbane Branch of the Union. As will eme.rge the Bn ~bane Branch does not constitute a legal entity separate a_f!d distinct from the Umon although the Union rules do recogmse the Branch m a manner which will subsequently require consideration. The rehef sought is:- " 1. An order that STEPHEN ROBERTSON, State Secretary of the United Firefighters' Umon of Australia, Umon of Employees,. Queensland, perform and observe the rules of the aforesaid Union by : (i) desisting from summoning meetings of members_ of the Brisbane Branch wh ich are contrary to the resolution and intent of the State Committee of Management; (ii) desisting from summoning meetings of the Brisbane Branch; (iii) refraining from _publishing and distributing circ~lars, under his authorshi p, which prescnbe the time, venue and agenda for a meeting or meetings of members of the Brisbane Branch, which are contrary to the resolu11on and intent of the State Committee of Management; (iv) refraining from _publishing and d_istributif!g circulars, under his authorsh1p, which prescnbe the ume, _venue and agenda for a meeting or meetings of the Bnsbane Branch. 2. An order that BRUCE VICTOR HARROW ,ROBERT- SON State President of the Umted Firefighters Union of Aust;alia, Union of Emplo;•ees, Queensland , perform and observe the rules of the aforesaid Union by refrain mg fro_m conducting and chairing meetings of mem_bers of 1he Bns- bane Branch which, contrary to the resolutton and intent of the State Committee of Management, have been convened by the State Se<-Tetary. . 3. An order that the meetings of the members of the Bnsbane Branch at the Greek Community Centre on Wednesday 31 July 1991 and Thursday I August 1991, are invahd; and that all proceedings conducted at these two meetings are null and void; 4. An order that the plebiscites endorsed by the Brisbane Branch at the Brisbane Branch Meetmg of ~4 July l 991 be conducted forthwith by t he State Returnmg Officer, G. Dixon.". Four represents an amendment to the original applicatio_n of 29 August 1991 as the consequence of an "amended" apphcauon filed on 3 September I991. The application is expressed to rely on sections 13 .23 and 8.22 of the Industrial Relations Act 1990- 19_91. Section 13.23 provides to the effect that a member of lndust_nal Orgamzauon may apply to the court "for an order under this section m relauon to the Industrial Organization" . By subsecuon 4 _the court may _refuse to deal with the application unless It 1s satisfied the applicant has Ull:U'l!Qfilll.UUWlltl!Ul{\UllUl1lOO/.UWltt!liUllW • • • 2 November, 199 1) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT E 677 taken reasonable steps to have the subject matter of the application resolved within the Industrial Organization. Section 8.22 is a general jurisdictional and machinery provision which would appear to have little application to the circumstances of the present case. Th e application arises in the circumstances of the development of what is descnbed as a 38 -hour a week package. This package, broadlv speaking, is designed to effect a trade-off of what might converiientlv be described as increased productivi ty on the one hand for reduced hours on the other. The package applies to all the members of the Union some of whom are of course members of the Brisbane Branch. Rule 32 of the Union rules constitutes a State Executive which, subject to the direction and supervision of the State Committee of Management, is to attend to the affairs of the Union between meetings of the State Committee of Management. The management and control of the Union is vested in the latter Committee. Rule 37 of the registered rules makes provisions for "Regions" expressed in tem1s of being for the purpose of Rule 19 (Elections), Rule 20 (By-Elections) and Rule 27 (State Committee of Manage- ment). It provides to the effect that the members of the Union at any one time in each of the regions set out in the map identified by Rule 27 shall respectively constitute a Region of the Union. Rule 38 provides for Branches in the following terms:- "3 8. Branches. (a) District branches comprised of members employed in one or more districts m ay be formed within each resion, subject to the authonsation of the State Com- mittee of Management. (b) Such Branches shall have a Secretary and at least one (I) other committee member, and be elect.ed by simple majority vote by secret ballot conducted at a meeting called wi thin that Branch for that purpose. (c) Branch Secretaries and committee members must be financial members of the Branch they represent and must be nominated and seconded by financial members of that Branch. (d) The Branch Secretary shall act as spokesperson for that Branch in matters concerning that Branch on ly and be responsible for the conduct of business within that Branch, subject in all cases to the approval of the Branch Committee. (e) The Branch Committee of Management shall conduct the business of the Branch and shall be entitled to conduct its own bank accounts and shall take such steps as it sees appropriate to advance the interests of the Union in the Branch. provided that it shall be subject to direc- tions received from the officers of the Union or State Committee of Management and further provided that it shall not have power to make decisions that members of the Union shall take industrial action. (f) The Branch Committee of Managem en t shall take into account its conducting of the business of the Branch the decisions of members at branch general meeting s. (g) The Secretary of the Branch shall keep minutes of all committee meetings and general meetings of the Branch and shall forward a copy of all such minutes to the State Secretary as soon as is practicable after all such meetings. (h) The members of the State Committee of Management of the Union shall be entitled to attend such branch meetings as each of them so chooses and shall have an opportunity to speak but not vote at such meetings unless such member is a member of the said branch." . Before considering the terms of Rule 38 it is convenient to remark lhat Rule 39(a) provides tha t there shall be entered in books kept ,or the purpose, minutes of all proceedings of meetings conduct.ed among others by " Branches". The minutes are to be signed as Provided by the Rule and are then to be evidence of the proceedings to which it relates at least in the respects specified by sub-rule (c). Rule 38 is not particularly elegantly drawn. The reference in sub- rule (b) to a Secretary and "at least one other committee member" 1s i;>robably referrable to the Bran ch Committee of Management which suddenly appears full -blown in sub-rule (e). Sub-rules (f), (g) and (h) appear to contemplate branch meetings or even "branch general meetings" (sub-rule (f)). These are presumably the same thing and are constituted by a meeting of members of the Branch. There is no provision for special branch meetings although appar- ently some have been held - under the scheme of the rules there is no need to distinguish among various kinds of meetings of members of the Branch. There is no provision as to the calling or conduct of Branch meetings although it will be noted that sub-rule (d) provides that the Branch Secretary acts as spokesperson for the Branch '•in matters concerning that Branch only" and is to be responsible fo r the conduct of business "within that Branch subject in all cases to the approv al of the Branch Committee". It seems that on 11 July 1991 the State Committee of Management (the minutes are described as being minutes of the Union) resolved:- " . .. that the method of voting on the 38 -hour package as endorsed by the Brisbane Branch at its meeting on 23 Ma y, may be accepted and the process adopted by the Brisbane Branch i.e. endorsing the 38-hour package by secret ballot at special branch meetings be the process adopted by all branches through Queensland". There were then further resolutions to the effect that the State Committee of Management endorsed the 38-hour a week package and endorsing the recommendation of the State Executive that the package be taken to be endorsed "a fter the financial membership have voted at a Branch meetings the majority of attending members having voted in favour" . There may have been a problem if th.is involved a delegation of a responsibility vested in the State Exec- utive or Committee of Management but on any view of it that was overtaken by events to be referred to. Subsequently notice was given by the State Secretary of the Union of what was described by the heading of the notification as "38- hour week Notice of Meeting". The document wen t on to provide:- "Special meetings of members of the Brisbane Branch have been called for the purpose of voting on the 38 -hour week package as negotiated between the U.F.U. and the Queen s- land Fire Service. These meetings will provide all financial members wi th the opportunity to discuss the package. in detail and participate in secret ballots to decide whether the package should be endorsed.". The circular then went on to notify in fact two special meetings. This. and the timing _of the meetings was designed to provide the maximum opportumty m the hght of work arrangements fo r members of the Union who belonged to the Branch to make their views of the 38-hour a week deal known to the State Executi ve or the State Committee of Management. The State President and the State Secretary attended t he meetings. The former opening them and the latter addressing them in respect of the 38-hour a week package. After debate and question what is described as a secret ballot took place with a v iew , so far as t he material before me discloses, to the results of various similar ballots conducted throughout Queensland being considered bv the State Committee of Management to determ ine the view of the membership in respect of the acceptability or otherwise of the 38- hour a week package. The present application seems to me to be founded on a series of misconceptions. The meetings complained of were not in respect of "matters concerning that (Brisbane) branch onl y" or in respect of "the conduct of business 'within' or 'of' " that Branch in terms of Rule 38(d) and (e ). The 38-hour a week package is of concern to the entire Union membership and as such seems be yond the contemplation of Rule 38. Sub-rule (h ) provides that members of the State Committee of Management are entitled to attend Branch meetings and have an opportunity to speak but as I have indicated that is beside the point. The meetings complained of were not mee tings of the Brisbane Branch. They were part of a consultative proce ss dev ised bv the State Committee of Management to obtain the response of the Union memI?ership as a whole to the 38-hour a week proposal. The fact that It was decided to consult m terms of groups comprising members of Branches does not change a process which on its face was not a Branch meeting and which was in any event a matter in respect of wh.ich the Branch as such had no authoritv by reason of the limitations imposed by Rule 38(d) and (e ). • I note that M r. Stephen Robertson deposes that he took minutes of what I have indicated was not in any event a meeting of the Branch. There is nothing in the material filed in support of the application which serves to impeach the processes of the meeting or of the ballots which were there conducted. It is said that no attendance book was circulated or signed by those who attended -- 1 of 2 -- 678 QUEENSLAND GOVERN MENT IND USTRIAL GAZETTE the meeting but it is deposed that a list of members of the Union indicating branch and financial status was used to record those members to whom a ballot paper was i)Ven and the presiding officer and scrutineers of the ballot were appointed. In the circumstances there is no basis for the re li ef sought by pa ragraphs I. 2 and 3 of the application. There is quite simply no breach of an y rule or ot herwise an) improper action. There is moreover no basis for the reli ef so ugh t by paragraph 4. In fact there have been two petill ons ca!Jing fo r di fferently ex.pressed plebiscites pursuant 10 Rule 40 bearing the signatures of not less than 20% of the fin ancial members of the Union (Rule 40 and 4l(a)) and the State Co mmittee of Management has of it s own mo11on determined to submit a quesuon to the members m plebiscite (Rule 40(b)). I make no commen t as to the form of t he questions to be submitted, particularly those raised by the petitions, because the occasion to do so does nm arise on the present application. So far as the present application is co ncerned the materiaJ cstabhsbes no more than as I have recited; the petitions have been received and t he Committee of Management has resolved to sub mit a question to plebiscite. So far as the matcnal disclosed th ere is no occasion to do other than let the proce ss provided fo r b} the Rules ta ke its course. The apph ca11on is dismissed. Dated this eleventh day of October, 1991. M.P. MOYNIHA N, President. Appearan ct'S: - Mr B.G . Brnzel for Bnsbane l:lranch of the United Firefighters· Union of Australia. Union of Employees. Queensland. Mr A. Herbert (instructed by O' Mara Pauerson and Perrier) and Messrs S. RobertSon and B. Robertson fo r the United Firefighters· Union of Au stralia, Union of Em ployees, Queensland. Operative Date: ~ / A Judgment - UFU (2 November, 1991 2 November, 199 1] QUEENSLAND GOVERNMENT INDUST R IAL GAZE TT E 679 •• • -- 2 of 2 --