Case: Griffiths v Ansett Pilots Association [2001] FCA 1215
Outcome: discussed
in support of the submission that rule 62 did not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend, counsel for the applicant relied on Griffiths v Ansett Pilots Association [2001] FCA 1215 , in which Ryan J said, at [9]: It is common ground that the control provided for by the rules must be available in a practical sense and must not be susceptible to obstruction or unreasonable delay by the committee concerned. The related general observation can be made, in this context, that the reasonableness of the rules of an organisation, within the meaning of s 196 of the Act, is to be measured by what is practicably achievable under the rules in the actual circumstances in which they operate. (Section 196 was a precursor to s 142 of Schedule 1. ) Ryan J continued, at [10]: The circumstances to which I referred in the last paragraph, or "extrinsic facts" as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged. This principle derives from such authorities as Hodder v Australian Workers' Union (1985) 9 FCR 498 , at 502 per Pincus J, approved in Lawley v Transport Workers' Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 ; and Gordon v Carroll (1975) 27 FLR 129 , at 173 per Smithers, Woodward and St John JJ. As Ryan J noted in Griffiths [2001] FCA 1215 , at [14], the rules under consideration in that case contemplated that each general meeting be held at only one place prescribed by the proper body or officer. After recording counsel's submission that the rules of the Association did not infringe s 195(1)(b)(iv) as the Act then stood, his Honour said, at [25]-[26]: ... "control" as used in that provision, extends to control between elections. It is possible, particularly for an organisation with relatively few members, to provide for such control by granting a reasonably small number of members the facility to require the calling of a general meeting if such a meeting has the power to give directions to the relevant committee. No such power appears to be reposed by the rules in their present form in a general meeting of the Association. Moreover, the facility to require a general meeting which is accorded by rule 34 of the Association's rules is severely circumscribed by the location of its members and the nature of their work. As well, the fact that a single general meeting may only be convened at one place and at one place and at one time, in the light of the geographic distribution of the Association's members and their variously rostered working hours and the restrictions on voting by proxy, precludes that facility from according to members the requisite degree of control. ... It might have been otherwise had the rules permitted the calling of general meetings at several locations and staggered hours to maximise the opportunity for members to attend, and had the rules permitted the votes cast at such meetings to be aggregated for the purpose of deciding whether a binding direction had been given to the COM. However, while the rules remain in their present form, I do not consider, putting to one side new rule 56, that they provide in the requisite sense for control of the COM by the members. The applicant argued that Ryan J's ruling in Griffiths [2001] FCA 1215 was apposite to this case. Mr Jackson did not dispute the principles outlined by his Honour, but affirmed that the present case was a different one from Griffiths [2001] FCA 1215. In effect, the applicant's case was that, having regard to the nature of the members' employment, general meetings were not an adequate controlling mechanism and that a plebiscite should be the means by which the governing body was controlled by members but that a plebiscite could not operate in this way under the Union's rules. To make good the first part of this argument, the applicant again relied on Ryan J's analysis in Griffiths [2001] FCA 1215 , where, citing Boland v Munro (1980) 48 FLR 66 , his Honour said at [28]: Control [in the relevant sense] is not confined to the control which may be said to be exercisable through the ballot box at elections but extends, in a limited sense, to control between elections. ... His Honour accepted that, "control", in the present context, meant a power to check or restrain and not dominating control: [29]. In Griffiths [2001] FCA 1215 at [40] - [41] , Ryan J concluded that: [I]n evaluating the sufficiency of control over a committee given to the members, regard has to be had to the rules as a whole. ... ... Because I have been persuaded ... that the rules as a whole of the Association, considered without regard to the new rule 56, fail to make a provision required by the Act, namely one for control of the COM by the members, it follows that an order may be made under s 208 of the Act unless the new rule 56 has effectively remedied the failure. As Mr Jackson pointed out, however, in Griffiths [2001] FCA 1215 , Ryan J was concerned with a meeting of a national union, whose membership was dispersed through-out Australia and more than half of whom were likely at any one time to be preparing for flight duties. I accept, as Mr Jackson submitted, that the present case might well be relevantly distinguishable from Griffiths . On the evidence as it presently stands, it cannot be said that there is necessarily a Griffiths -type situation. Indeed, as Mr Jackson reiterated, there was some evidence before the Court that 10,600 Branch members (out of a total of 15,449) listed their home address at a location within a 70 kilometre radius of Dallas Brooks Hall in central Melbourne. Moreover, none of the evidence before the Court about attendance at Branch meetings apparently related to attendance at Special General Meetings.