Adams, Geoffrey David v M.K. Hill

C A T C H W O R D S

Industrial Law - application under

s.141 of Conciliation

and Arbitration Act for enforcement

of rules - provisions

of rules relating to election

of delegates to

A.L.P. State

Conference - whether Union State Council

is the constituency

for election nominated by the rules - whether the rules empower the State Councll to select itself as the constituency, and in contrast to election by all financlal

members of the Union in the State

- relevance of s.133 of

the Act - whether "substantial compliance" test is applicable	-
proper exercise of the dlscretion of the Court.

Conclliatlon and Arbitration Act,

1904 - ss.4, 133, 141

Rules of Amalgamated Metal Foundry and Shiprlghts Union

ss. 2, 20, 21, 23, 25

ADAMS V HILL

(No. 1.20 of 1984)

CORAM:

WILCOX

PLACE :	SYDNEY
DATE :	TUESDAY, 19 JUNE, 1934

IN THE FED=	COURT OF AUSTRALIA	)
)

NEW	SOUTH WALES DISTRICT REGISTRY	1	No.	1.20	of	1984
)

DIVISION

INDUSTRIAL

)

BETWEEN: GEOFFREY

DAVID

ADAMS

Applicant

m: M.K. HILL

AND ORS.

Respondencs

REASONS FOR JUDGMENT

CORAM :	WILCOX J
IjATE:	19 JUNE, 1984

W: SYDNEY

This i s the return of an order to show cause made by

%.John J on l? May. 1984.

The matter concerns a dispute between members

of the

Tasmanian branch of the Amalqamated Metals Foundry and

- - -

2 .

Shiprights Union as to the method of election of delegates of

the Union

to meetings of the Australian Labor

Party, wlth

which the Union

is affiliated. Affidavit evidence was filed

on behalf both of the applicant and the respondents but

it was

agreed between counsel that

I should deal with the matter by

reference to a statement of aureed facts (Exhibit

B). The

facts set out hereunder

are taken from that source.

The applicant

is a financial member of the Union and

1 s State Secretary of its Tasmanian branch. By virtue of hls

offlce he is a member of the State Council of the Tasmanian

branch.

The remainlncr members of State Councll

are amongst

the respondents to this Appllcation.

The Union is an

organisation registered under the Conclliation and Arbitration

Act.

The practice of the State Council of

the Tasmanian

branch. durin? recent years and untll

28 May. 1984, has been

to choose the Union's delegates to the State Council of the have been appointed to represent the Unlon only at a specified

A.L.P. State Council Meeting. not to hold offlce for

a period

of time.

Nominations for selection, to use

a neutral word, as

a delegate have not been invited from amongst the members of

the Tasmanian branch

of the Union, nor has

a returning officer

3 .

been appointed to conduct the election of such delegates.

All

delegates have been members

of the Tasmanian branch of the

Union. although not necessarily members	of the Tasmanian State
Councll of the Union.

A meeting of the Tasmanian State Council of

the

Australian Labor Party

1 s scheduled to be held at Launceston

on 23 June. 1984. No delegates have yet been elected to

represent the Union at this conference. However, on 28 May,

1984. Council resolved:

"That the State Returning Officer be

requested to call nomlnations for

deleuates to the A.L.P. State Councll in

accordance wlth State Councll Rule

and that nomlnatlons open

30 May. 1984

and close at

10.00 am 2 1 June. 1984 and

that the Returnlng Officer take

the

necessary steps to advise all members

accordingly.

That the next State Councll of the

A.M.F.S.U. be held at 9.30 am on

June. 1984, at Launceston and that the State Returning Officer and Deputy Returning Offlcer be requested to be in attendance and to conduct a ballot for the A.L.P. State Council delegates if required".

On 29 Hay, 1984. Mr G Watkins, State Returning

Officer of the Union forwarded to all members of

the Union

within Tasmanla a notice calllnu for "nomlnations for nine

delegates" to the Tasmanian State Council

of the Australian

Labor Party. The notice indicated that the term of office

4 .

would be for two years commencing

2 3 June. 1984 and

that

successful candidates will be required to attend

A.L.P.

State Councils when they are called.

Nommatlons were to

open on Wednesday	30 May, and close	at 10.00 am on Thursday
21 June.

By an advertisement in "The Mercury"

published on

the same day public notice was given of the calling for

nominations.

The decisions made by the Unlon State Council on 28

First, State Council decided to call nominations from the

membership of persons for selectlon as Union delegates to

the A.L.P . State Councll: in the past the names had been

proposed in a resolution formulated within State Councll

May, l984 depart from prevlous practice in two respects. contemplates that State Councll will select, from amongst

those nomlnated. persons to hold office as delegates

for

term of two years. thus departlng from past practlce whereby

delegates had been selected to attend only a slngle

specified meeting.

Notwithstanding these changes. the

applicant

contends that the procedure proposed to be adopted fails to

l	comply with the requirements of the Rules of the Union. The fundamental issue between the parties, havlna regard to the

new procedure, is the nature of the constituency to Select

delegates. The applicant contends that delegates must be elected by a constituency consisting of

all financlal

members of the Tasmanian branch

of the Union. The

respondents submit that it is open to the Unlon State

Council itself to act	as the constituency for selection of
candidates.

Rule 21 of the Union's Rules is entitled "Delegates

to Representative Bodies". It reads as follows:

"1.

The National Council shall arrange for the

election of delegates to the

A.C.T.U. Congress on

the basis of four delegates

each from

Queensland,

New South Wales and Victorla and two from each of

the other States. and in addition

to those so

elected may appoint delegates from its number

together with the President and Secretary. The

remainder of the delegatlon shall be selected by

the State Council of the State In which the

Conuress 1 s to be held, from financial members In

conformity with Rules

40 and 43.

2. State Councils shall arrange for the election in each State of the Unlon's delegation to Conferences of the Australian Labor Party.

They shall also arranue for the election of delegates to represent the Union on State and

Provincial Labor Councils and executives of

the

Australlan Labor Party. Electlon of these

deleaates must be held at least every

3 years.

3 . Candidates must at the date of nomination have been members for at least two years contmuously.

be financial in accordance with Rule

40 and 43

and to have been worklng at the trade for the

immediate preceding twelve months or whllst

financial members

of the Union have been elected

as an officer of

or employed by any organisation

t o which the union is affiliated or as a workinq

class member of Parliament.

Except as provided in Clause

2 . paragraph 2 of

this Rule, delegates shall

be elected every

second year in accordance with these Rules."

Despite the assumptlon in clause

4 of Rule 21 no

provision is made anywhere in the Rules for the manner

election of the delegates referred to

in Rule 21. This

omission is the cause of the present dispute.

The parties agree that there

is, in Tasmania, no

"Conference" of the Australian Labor

Party, the meeting of the

A.L.P. State Council fulfllllnu this same function, and that.

therefore, it 1 s appropriate to read R . 2 1 . 2 ,

in its

application to the Tasmanian Branch, as referring

to the

Union's deleqation to meetlnus of the State Council of the

Australian Labor Party.

The argument before

me has ranged widely but the

parties agree that the question turns upon the extent of the

power glven by clause

2 of Rule 21.

Mr Trew. QC, on behalf

of the applicant, argues that the function of the State

Council of the Union. under that

clause, 1 s limited to the

administrative task of arrancpng for the carrying out of

election. He contends that the clause qlves no authority to the Union State Council itself to act as the constituency for

the election.

M r Shaw. on behalf of the respondents. contends

that the words "arrange for" imply that the State Council is

itself to act

as the constituency or, alternatively, are wlde

7 .

enough to

a , 1 1 0 ~

the State Council, in making arrangements,

choose a constituency, being

a recognised organisatlon within

the Unlon, including itself.

I do not think that

Mr Shaw's primary submission can

be accepted.

A requirement that the State Council "arrange

for" the election does not, In the natural meaning of the

words. suggest that the State Councll shall itself elect the

deleuates.

The Shorter Oxford Dictlonary (3rd Ed.) defmes

the verb 'arrange'. relevantly, as

" 2 .

To put (the parts)

into order: to adjust. ... 4.

To place in some order, dispose

.... 7.

to plan. or settle details. beforehand". In their

context the words In the Rule suggest

a requirement that the

State Council make the adminlstrative arrangements to ensure

an election. They do not extend to include	a power in State
Councll Itself to elect.

I add some additional considerations. Had it been

intended that the State Council shall not only ensure that an election takes place but also act as the constituency for the election it would, I think, have been very easy for the clause

to so say. There was at close nand

a model for the framing

such a clause. Clause

1 of Rule 21 deals with the method of

selection of the Unlon's delegates to the

A.C.T.U. Conqress.

The deleuates are to be selected by

a mixture of three

different methods. The first category of delegates

is to be

elected on the basis of

a partlcular number of delegates from

each State.

The clause provides, in respect of these

delegates, that "National Council shall arrange for the election". Additionally. however, the National Council "may appoint delegates from Its number". Delegates In this second

category are to be selected by the National Council. Those

delegates must be members of the National Councll.

The third

category of delegates is to be "selected by the State Council"

of the relevant State "from financial members

. . . . ' I .

Delegates in this third category

are, in effect, to be elected

by the State Council but nominees map be drawn from the ranks

of financial members outside State Councll.

The present relevance of clause

1 is that it clearly

contrasts the obligation to "arrange for the

election" of

certain delegates with the entltlement

of National Council and

the varlous State Councils respectlvely to make their

own

appointments. The repetitlon in clause

2 of the formula

"shall arrange for" indicates, to my mind. that in relation to

deleuates CO A.L.P.

conferences the first method of selectlon

was intended, ie election by a constituency other than the

organisation havlnq the duty of making the arrangements.

Mr Shaw's alternative proposltion emphasises the

width of the word "arrange". He argues that the power to

"arrange for the election" of delegates includes a power to

nominate the constituency to select the delegates.

Mr Shaw

or to an ad hoc committee. He

concedes that the matter is not completely at large; the State particular individuals

contends, however, that it is

open to State Council to select

any of the recognised organs of the Tasmanian branch of the

Union to act as the constituency. He nominates as

possibilities the State Conference. the State Council

or the

membershlp as a whole.

It is, he contends, a matter for the

dlscretlon of the State Council which constltuency it selects.

I think that there

are two difficulties about this

alternatlve submission. The first is that the formula

"arrange for" 1s not really apt to include the exercise of

judgement so fundamental as the cholce of the constituency for

the election. The dictionary definltions suggest the making

of merely administrative and procedural decisions. The second

difficulty is pointed up by Mr Shaw's concession, necessarily

made to avoid the possibility of results hiqhly unlikely to

have been conternplated by the authors

of the Rule. If there

is the constraint conceded by

Mr Shaw, thls can

be only

10.

because there is something in the Rules to indicate

contemplation by the draftsman of the Rules that the nominated organs are, at least, possible legrtimate constituencies and

thereby to be distingulshed from

an Illegitimate constituency

such as the committee of the local dogs' home.

Is there, then,

anything in the Rules to indicate that either State Conference

or State Council is

a contemplated possible constituency?

The powers of State Conference are governed by Rule

2 3 .

Clause 2 of that Rule lists

a number of powers. most

which are couched.

(as one would expect) in general terms:

see paras (a) to (e) inclusive. None of those powers is, in

my view, apt	to Include the election of deleqates from the
Union to the	Tasmanmn A.L.P. Councll or even to indlcate that

State Conference was seen as

a possible constituency for the

exerclse of that power. Para. (f) empowers the Council to:

"Elect by and from Its

own deleqates, deleqates to

State Councll, State Adminlstratlve Committee, State Vice-Presldent. and State Trustees and to elect by and from Its members State Representatives to

National Council".

The speciflcation of the powers of State Conference

in reuard to the election of deleqates to other commlttees 1s precise. It would be odd if, by the side wind of the exerclse

11.

of an unexpressed discretion of State Council, there was to be

added a furher elective function: that of electing delegates

to the A.L.P. State Council, and this without any

speclflcation as to whether candidates for elections must be

deleqates to State Conference. members	of State Conference	or
need have neither qualification.

The powers of State Council are set out in Rule which clause 2 reads as follows:

25 of

" 2 .

The State Council shall uenerally

serve the

purpose of an executlve body of the State Conference

in the State concerned and may convene any Special

State Conference of

the Unlon considered necessary or

desirable, the agenda for whlch shall be determined

by the State Council and llmltei to those

matters

notifled In sccordance wlth che grlnclples of Rule

10.

It shall, sub~ect

to the powers of the State

Conference, National Conference and the National

Councll generally dlrecc the

worK of the Union In the

State, carry out partlcular responslblllties

aliocated to it under these Rules and take all steps

necessary and in accordance wlth these Rules to

strenuthen the Union and further the Interests of the

members".

Mr Shaw argues that the second sentence of thls clause 1s appropriate to confer powers upon the State Council

to act as a constltuency for

an electlon of deleuates to the

A.L.P.

State Councll if. pursuant to

Its oblluatlon to

"arrange the election",

the Councll so decides or, puttinu it

12.

another way, to indicate that State Council is a potential

legitimate constituency. I do not accept that submission.

The first sentence of clause

2 designates the role whlch State

Council is to play, that is

"an executive body of the State

Conference".

The obligations referred to In the second

sentence are obligations appropriate to be undertaken by

executive body Involved In day to day administration.

might be expected. the obligations are couched

in wide and

general terms: "generally dlrect the work of the Union".

"take all steps necessary

... to strengthen the

Unlon",

"further the Interests of the members". None of the formulae

is, in my new. an indication of the existence of

a role of

choosing the people who will represent the Union ie. the members of the Unlon in the deliberatlons of the A.L.P. State Council. Significantly, but no doubt appropriately given the

concept of State Councll as an "executive

body", the Rules

make no provision for State Council to elect any

office-bearers whatever.

The Rules make specific and detalled provision for the election by members of various State officers: see Rule

of Part "B". They make no express provision for the election by members, whether assembled in local brancnes or otherwise,

13.

of delegates to the State

A . L . P .

Conference or Council.

Trew argues that

if there is a gap in the provisions of the

Rules, so that they contain no provision, either express or implied, for election by the members. this does not derogate

from his submission

that the procedure proposed to be adopted

by the State Council

is invalid. A gap would slmply mean

that, unless and until the Rules were altered, no delegates

could validly be appointed by the Union to

an A . L . P . State

Conference. However, he submits that there

1s In fact no

problem, that Rule	21 clearly implies an electlon by financial
members.

In support of his submission Mr Trew referred me to

the provlsions of the Conciliation and Arbitration

Act, 1904,

as amended, and, in particular, to the requlrement of s.133

that the Rules of reglstered organlsations shall provide for

the electlon of the holder of each office within the

organisation either by a direct votlnu system or a collegiate

electoral system (para. (a)

) and, inter alia. shall provide

for secret ballot, with absent voting (para.

(d)

) .

Mr Trew

argues that the position

of a delegate from the Union to the

A . L . P .

State Councll is an "offlce" within

para. (d) of the

definition of "Office" in

s . 4

namely:

"(d) every offlce wlthln the organisation or branch

for the filling of which an election is required to

be conducted withln the organization or branch".

14.

nr Trew argues that the office

is "within the

organisation" because the delegates are required to be financial members having a particular connection with the trade (Rule 21.3) and they act on behalf of the State Branch

of the Union when attending meetings of the

A.L.P. State

Council, a function directly related to one of the objects of the Union: see R.20.lte). Mr Trew further contends that the

effect of Rule

21.2 is that an election is required to be

conducted within the State Branch.

There is much force in the argument that the position

of delegates to the A.L.P. State Council

1 s an "offlce" within

para. (d) of the definition,

so that the rule requlrements of

s.133 are applicable. The word "office" In this context has a

wide application: see Peuu

v Tavlor (1959) 1 FLR 274:

Elections for Offices in Amaluamated Enuineerinu Union

(1961)

3 FLR 63 at pp 66-67. However, I do not think that I ought to

declde that question in this case. The matter before

the

Court is an application for enforcement

of the Rules, under

5.141 of the Act. There is no challenge, under 5.140 of the

Act, to the validity or legal adequacy

of the Rules. The

Union itself would be

a necessary party to any such challenge.

It is not presently a party to these proceedlngs. It 1s inappropriate to express a view contrary to the valdlty and legal adequacy of the Rules of a registered organisation except in proceedings properly constituted in which that matter is directly in issue.

15.

The only question

I have to decide is whether there

arises from the Rules an implicatioin that the constituency

for the 'election' envlsaued by R.21.2

is to be the whole of

the financial membership. If that question be answered

affirmatively then the duty of State Council is

t o 'arrange

for' such an election. Unless and until the Rules are

amended, whether pursuant to

a 5.140 order or otherwise,

so as

specifically to lncorporate the requirements of

3 . 1 3 3

the

State Council is not bound to ensure that the election

satisfies all of the standards contemplaed by

5.133.

I have come to the conclusion that

there is an

implication in the Rules that the constituency for electlon of

deleuates to the	A.L.P.	State Council is to be membership	as a
whole.

Rule 21.2 speaks of State Counclls arranqlnq

"election" In each State of the Union's delegatlon. The word

"electlon" is apt

to cover a selection by all flnancial

members.

It I s used, for example, in Rule

2 in relatlon to

the vote by members to determine offlce bearers at both National and State level. Candidates. ln those cases. must have a quallfication of length of membership and relevant

employment but the candldates are not confined to persons who

serve upon any particular

committee of the Union. The concept

appears to be an electlon by the total membership

of persons

16.

who m y be mere members, in the sense that they are not also

presently office bearers. Rule 21.3 provides a simllar

qualification for candidates for election	as delegates to the
A.L.P. State Council.

By contrast, although the symmetry is not complete, the provlsions which entitle

a committee of the Union to elect

or appoint a particular office bearer generally speclfy that

the candidates are to have some particular qualification by

reference to membership of an exlsting committee: see for

example the provislon cited above for election

of various

persons by State Conference.

I thlnk that the speclfic

provision for

candidates to be drawn from the general

membership is a polnter to an Intention that the constltuency

for the eiection of deleqates shall also be the entire

membership.

There is a further and more fundamental reason for reachlng this same concluslon. Rule

20 includes as objects of

the Union "the furtherance of polltlcal oblects" inclualnu:

"(e) by direct representation at A.L.P.

Conferences"

The Unlon is tnat body or persons, qualified by their

employment. who are the financlal members chereof: see Rule

1, clauses 1A. 1B. The Rules therefore provide that one of

the objects for which the members have come together is that

they, the financial members. be represented

at A.L.P.

Conferences. They can only

do this by duly appointed

delegates. In order to achieve the object specified In Rule

20(e) the members must either themselves appoint delegates or

else, by the Rules, delegate to some other person or organ of

the Unlon the functlon of

appolntmg delegates. Once It be

concluded that the Rules do not delegate to any other person

or organ the task of

appointing delegates then it follows that

thls function remains vested in those constituting "the

Union", namely the flnanclal members. In relation to

representation of a State Branch those members who

constitute

that Branch are the persons who must

jom together to select

the persons to represent them under

Rule 20(e).

For these reasons I have reached the conclusion that,

upon thelr proper constructlon, the Rules do not permlt the

State Councll ltself to act as

a constltuency for the purpose

of electmu delegates to the

A.L.P. State Council but, on the

contrary. require the State Councll

to arran9e an election

deleqates by the general membership. Mr Shaw argues that. nonetheless, there is no threatened breach of the rules in regard to the forthcomlng election. that any requlrement for

election by the whole membershlp is not

a mandatory

requirement but is merely directory and that election

by State

Council, a body composed of persons elected directly or

indlrectly by the total membership, is

a substantial

compliance with the requirements of the Rules. Reference was made to Scurr v Brisbane City Council (1973) 1 3 3 CL 242; see

18.

- :

especially per-.$tephen J at pp. 255-256.

I do not think

that

the application

of the mandatory/directory dichotomy is

relevant to this case. There is not here

a procedural

non-compliance, in relation to

which it is necessary to

enauire whether it was intended that strict compliance be

pre-condition to the validity

of the act.

Here, in my view,

there is simply no power

for State Council to do what it

proposes to do.

Furthermore, I do not see how it can be a

substantial compliance with

a requirement that constituency

'X' elect delegates to have those delegates elected by

constituency 'Y'. It may be true that the then members of

constituency 'X' selected, at an earlier point of time and for

different purposes. those who now constitute constituency

'Y'

but it does not follow that each constltuency would today

select the same people to act as deleuates.

Section 141(1G) of the Act empowers the Court to give directions for the performance of any rules

of an

organisatlon.

Mr Shaw has submitted that if, contrary to his

submissions, it be held that the procedure proposed to be

implemented by the Union State Council is in contravention of

the Rules then. nonetheless, the Court should, in the exercise

of its discretion, decide not to intervene. He points out

that the practice of the Union, over at least

a number of

years, has been

for delegates to the A.L.P. State Council to

be appointed by a resolutlon of the Union State Council, that the Union State Council in any event proposes to "open

up" the

19.

election procedure by calling for nominations from the general

membership and that it would be difficult, if not impossible,

for the Union State Council to arrange for

an election of

delegates by members in time for the

A.L.P. State Council

meeting scheduled

f o r Saturday 23 June, 1984.

In Cook

v Crawford (1982) 43 ALR 83 a Full Court of

this Court held that the Court had a discretion to refuse

relief to applicants who had established

a breach of s.141 of

the Act and. indeed, ln that case the Court held that relief

should be refused because of the conduct of the applicants.

In Cook v Crawford, Smithers

J at p. 114 said:

"It would appear that

an order should be made where

the Court decides

as a matter of discretion that the

circumstances are such

that for the purpose of

promoting the objects of the Act it would be

beneficial to make the order. So fundamental is it

that rules be obeyed that it is only in rare cases

that the Court refuses an order."

There are here no matters of personal conduct to be

considered, as in Cook v Crawford.

The arguments put by

Shaw are arguments merely of convenience depending heavily

upon the imminence of a partlcular meeting of the

A.L.P. State

Council. However, the deleuates whlch the State Council hold office for a period of two years and to represent the

proposes to choose are intended not merely to represent the

Union at all State Council meetings during that period.

2 0 .

would be unfortunate if the result of

an order in these

Droceedings was that the Union was not represented at the

meeting of the A.L.P. State Council on

23 June. However.

there is nothing before me to indicate

that there is any

business scheduled to be

considered for that meeting which is

of particular moment to

the Union. It seems to me that

for

the Union to be unrepresented at one particular meeting is

lesser evll than for it to be represented by persons not

validly appointed, pursuant

t o the Unlon Rules, over

a number

of meetings during the next two years. Some members

of the

Unlon, wnat proportlon they would constltute

I cannot know,

may prefer to be unrepresented at

a particular meeting rather

than to be "represented" by people not valldly elected and who

may be sdvocatlng views whlch they

do not share. I have no

way of Judaing whether the persons who mlght be elected by

the

membership as a whole, as I thlnk the Rules require. would be

substantlally the same people as miuht be elected by the

members of State Council in accordance wlth the procedure

presently envlsaqed.

The formal order sought by the applrcant is

an order

that the respondents, beinq members

of the Union State

Counczl, "perform and observe the Rules

of the Organisation by

arranginq for the electlon in accordance wlth Rule

2 1 ( 2 )

thereof of the Organisation's deleqatlon to conferences of the

Australian Labor Party and, m particular. of the

Organisation's delegation to State Councll

of the Tasmanian

21.

branch of the Australian Labor Party". This form begs the

main question in the proceedings and

it was agreed at the

hearing that,

if the applicant was entitled to succeed,

a more

precise order, lnvolvinq directions under	s.141, would be
needed.

As at present advlsed,

I do not thlnk it to be

appropriate that the directions

uo further than to require

that the State Council arrange for

the election of delegates

by the financial members of the Branch In Tasmanla. The State

Council would be encitled, in maklna those arrangements. to

adopt the standards envisaged as rule requlrements by

s.133

and It may take the view that those standards provlde

quldance through otherwise uncharted seas. But, unless and

untll the Rules are chanqed to

mcorporate those requirements,

the s.133 speciflcations do not legally blnd the Union or the

State Councll. Consequently, there appears at thls stage to

be no power vested In the Court to rerl_uire them to be applied.

However, I indlcated to counsel. at the end

of the arqument,

that I would afford to the parties

an opportunltp to conslder

the appropriate form

of order In the lluht of the concluslons

I have expressed on the matters

of substance.

22.

I will stand over the further hearing of the matter

to a date to be fixed.

I direct the applicant to brlnu in for

consideration Short Minutes

of the Orders sought by hlm, in

the light of my concluslons. At that time	I wlll deal with
any matter of costs.

I certify that this and the preceding

3 1

Dagesare a true copy of the Reasons for Juduement	herem
of his t-ionour Mr Justlce Wilcox

Assoclate

Dated:

[1984] FCA 163

16 Jun 1984