Application for an election inquriy in the Australian Workers Union by Robert Bob-Mack

[1982] FCA 102

Re: IN THE MATTER OF AN APPLICATION FOR AN ELECTION INQUIRY UNDER PART IX OF T
CONCILIATION AND ARBITRATION ACT 1904 IN THE AUSTRALIAN WORKERS' UNION BY ROBE
BOB-MACK
S A. No. 13 of 1981
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - Inquiry into an election being conducted under s.170 of the Conciliation and Arbitration Act 1904 - irregularity alleged in nominations of member for position of organizer and other positions in South Australian Branch of the Australian Workers' Union - eligibility rule - "all persons appointed officers of the Union shall be entitled to become and remain a member" - amendment to eligibility rule and definition rule during currency of term of office as officer - prior election more than 4 years before date of application for inquiry into current election - validating sections of Act - prior election shall, for all purposes, be deemed to have been done in compliance with the rules - Conciliation and Arbitration Act 1904 - Part IX, s.163, s.165 - s.171F; Federal Court of Australia Act 1976, s.21

HEARING

ADELAIDE

#DATE 26:5:1982

JUDGE1

On 26 August 1981 the Industrial Registrar appointed under the Conciliation and Arbitration Act 1904 (the Act) referred to the Court an application dated 23 August 1981 lodged under s.159 of the Act by Robert Bob-Mack (the applicant) a member of the South Australian Branch (the Branch) of the Australian Workers' Union, (the organization), an organization of employees registered under the Act for an inquiry into an election for the filling of certain offices and positions in the Branch (s.159(4)). The said election is being conducted pursuant to s.170 of the Act by Graham John Carey (the returning officer) an officer of the Australian Electoral Office, Adelaide.

Pursuant to s.159(4)(a) of the Act the inquiry is deemed to have been instituted at the time of the reference to the Court. The Court being satisfied that there was reasonable ground for the application, proceeded with the inquiry (s.159(4)(b)).

In or about June 1981 the returning officer had called for nominations for Branch Vice-President on the Executive Council; South Australian Branch Executive Councillor; Branch President; Branch Vice-President (2); Branch Secretary; Branch Executive Committeemen (5) and organisers (6). At the close of nominations ballots were necessary for the following positions: Branch Executive Councillor, Branch President, Branch Executive Committeemen and organisers.

Two candidates nominated for each office of Branch Executive Councillor and Branch President namely the applicant and a John Dunnery whilst ten candidates including the applicant and Mr Dunnery nominated for the six positions of Branch organiser. A ballot was also required for the filling of the five Branch Executive Committeeman positions as nine candidates had been nominated therefor. Neither the applicant nor Mr Dunnery were candidates for Executive Committeeman and no challenge is made in respect of any of those nine nominations.

The application filed for the inquiry included particulars of alleged irregularities. It was the applicant's contention that Mr Dunnery was ineligible to nominate or be nominated for the offices or positions for which he had been nominated as at the relevant time he was ineligible to be a member of the organization. Further the applicant claimed that several persons who had been accepted as members of the South Australian Branch of the organization and who were in fact financial at all relevant times were to be denied ballot papers in the election, their membership tickets having been endorsed, "not a member under R.6".

Rule 6 is the eligibility rule of the rules of the organization.

When the inquiry was called on for hearing the applicant, the organization, Mr Dunnery, and the returning officer were each seperately allowed to be represented by Counsel. (s.164). Mr Johnson Q.C. with Mr Collett appeared for the applicant, Mr Trew appeared for the organization, Mr Quick with Mr White appeared for Mr Dunnery whilst Mr Kelly of the Crown Solicitors Office, South Australia appeared for the returning officer. Mr Kelly indicated that the returning officer would abide by any order of the Court and produced to the Court certain records from the returning officer.

Mr Trew on behalf of the organization immediately made an application pursuant to O.29 of the rules of Court that the Court hear legal argument on a preliminary point going to the issue whether Mr Dunnery was entitled to nominate or be nominated as a candidate in the election. He submitted that if his arguments in this regard were upheld then the applicant's claim as to Mr Dunnery's ineligibility for candidature would be substantially disposed of (cf. O.29 r.4). This course having being agreed to by the parties such application was granted.

For the purposes of the hearing of this preliminary point a statement of agreed facts was tendered. Such agreed facts (inter alia) show that Mr Dunnery -

(a) first joined the organization on 22 September 1967 whilst he was employed at Halletts Brick Industries at its Golden Grove Brickyard and remained a de facto member until the present time having paid all contributions during that period.

(b) on 23 August 1974 he was appointed by the Branch Executive to fill a casual vacancy in an office of Branch Executive Committeeman which he held until his appointment as a Branch organiser as in (c).

(c) on 29 August 1975 he was appointed by the Branch Executive in accordance with the rules to fill a casual vacancy in a full time position of Branch organiser on and from 1 September 1975. He resigned his employment with Halletts Brick Industries on 29 August 1975.

(d) since 1 September 1975 he has been employed continously as a full time Branch organiser by the organization, he having been nominated and elected to that position in accordance with the then rules on two occasions since 1976.

(e) the first of such elections occurred in 1976 when he was elected unopposed apparently for the balance of a five year term of office expiring 31 May 1978 (then r.68).

(f) he was again elected a Branch organiser in elections declared in December 1977 for a term of office of four years commencing 1 June 1978. Nominations for such position closed not later than 21 June 1977 (then r.68).

(g) following the usual practice nominations were called in or about early June 1981 for the election of members for the filling of the offices and positions in the South Australian Branch in June 1982 (r.68). Should a ballot be required then that ballot was to remain open until a date between 1 and 18 December 1981 (r.69). Persons elected to all relevant positions were to take office on 1 June 1982 (present r.68) for a period of four years.

On these facts it was submitted by Mr Trew:

(1) that pursuant to the provisions of s.171F of the Act the Court must accept that Mr Dunnery's appointment as a Branch organiser in 1975 and his election to that position in 1976, being more than 4 years before the date when the present inquiry was instituted, namely 26 August 1981, had been carried out in compliance with the then rules of the organization or branch.

Section 171F(1) (b) reads: "Subject to this section . . . . upon the expiration of 4 years from -

. . . . . . . . . . . . . . . . . .

(b) the election or purported election or the appointment or purported appointment of a person to an office or position in an organization or branch: the . . . . . . . . election, purported election, appointment or purported appointment . . . . . . . . shall, for all purposes, be deemed to have been done in compliance with the rules of the organization or branch."

(2) that on being appointed in 1975 and elected in 1976 such organiser, he became an officer within the meaning of the rules (r.4) and pursuant to the eligibility rule (r.6) he, as such officer, was entitled to become and remain a member of the organization.

(3) that since his election in 1976 Mr Dunnery had occupied the position of an organiser of the Branch and that he had paid all contributions due under the rules during this period.

(4) Accordingly applying the principles stated in Egan -v- Harradine 6 ALR 507 @ 542, his appointment in 1975 and his election in 1976 as organiser of the Branch meant that he was deemed for all purposes to be then eligible to be a valid member of the organization eligible to be so appointed and elected and that on such appointment and election he was deemed for all purposes to be an officer within the meaning of the rules of the organization and that thereafter, pursuant to certified r.6 of the rules of the organization he has been entitled to remain a member.

At the time when Mr Dunnery was first appointed a Branch Executive Committeeman in 1974 and an organiser in 1975 and elected to that position in 1976 rr.4(e) and (h), r.6 and r.51 so far as they are relevant read:

General Definition Clause

4. "In the interpretation of these Rules the following definitions shall be taken as a guide:

(a) to (d) . . . . . . . . . . .

(e) an "Officer" shall include . . . . Organisers, Branch Executive Committeemen . . . . . .

(f) . . . . . . . . . . .

(g) . . . . . . . . . . .

(h) "Organiser: means an officer elected in manner hereinafter appearing or appointed by a Branch Executive . . . . . . . . " Full Membership

6. "Subject to these Rules, every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely: Pastoral, . . . . . and without limiting the foregoing all persons employed in or in connection with the horse training industry excluding jockeys and apprentices, and all persons appointed officers of the Union shall be entitled to become and remain a member of the Union provided that . . . . . . . . "

The provisos are not relevant.

Rule 51 of the rules of the organization which was certified by the Industrial Registrar pursuant to s.139(4) of the Act on 14 April 1976 and which, so far as is relevant, has not since been amended reads:

Qualification for Office

51. "No person shall be eligible for nomination for election as an officer unless he has signed the pledge prescribed by Rule 46 and he has been a member of the Union for at least five years immediately preceding such nomination and has been continuously financial for at least three years immediately prior to the date of nomination. Any member who was previously a member of a Union amalgamated with The Australian Workers' Union shall for the purpose of this Rule be considered a member of the A.W.U. for the period he belonged to such other Union."

Further, at all relevant times r.64(a) made provision for the number of organisers to be elected at the regular elections of Officers in accordance with r.68, which provided (inter alia) that nominations for candidates to that office shall be called for every four (initially five in 1976) years and that the candidate was a financial member for at least 3 years immediately preceding the date of nomination and was a member of the organization for at least 5 years immediately before that date and further, that the office of organiser was one of the salaried offices of a Branch of the organization. In addition, r.64(c) at all relevant times provided that all organisers shall be subject to removal from office pursuant to r.58(c) which sub-rule purports to conform with the provisions of s.133(1) (f) of the Act which came into force in 1973. Rule 65(c) at all relevant times provided that only persons eligible for election to the office of Branch Executive Committeeman or organiser shall be appointed to fill a vacancy in either office.

Again, r.52, at all relevant times, provided (inter alia) that persons who are not financial members of the organization "shall be incapable of holding any office in the organization and shall be liable for expulsion under r.15". Rule 15 makes provision for expulsion only of a member from the organization.

Since 1975 certain relevant amendments to the rules have been made. Section 139 of the Act at all relevant times read:

(1) A change of the name of an organization or an alteration of its rules in so far as they relate to conditions of eligibility for membership or the description of the industry in connexion with which the organization is registered shall not have effect unless the Registrar consents to the change or alteration upon an application made as prescribed. (2) The Registrar may consent to the change or alteration in whole or in part but shall not so consent unless he is satisfied that the change or alteration has been made in accordance with the relevant procedures laid down by the rules of the organization. (3) The Registrar shall record the change or alteration to which he has consented in the register and upon the certificate of registration and thereupon the change or alteration shall have effect. (4) An alteration of the rules of an organization to which the consent of the Registrar under this section is not required does not have effect until particulars of the alteration have been filed in the office of the Registrar and the Registrar has certified that, in his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law. . . . . . . . . . . (5) and (6) . . . . . . . . .

Relevant amendments to r.6

In April 1976 the organization made an application pursuant to s.139(1) of the Act to alter its conditions of eligibility for membership in various ways. Such changes include an alteration to the last part of r.6 set out above by deleting the words "and all persons appointed officers of the Union shall be entitled to become and remain a member of the Union provided that" together with the provisos and substituting the words "and all persons elected or appointed as officers of the Union shall be entitled to remain members of the Union".

The Industrial Registrar consented to the said alteration on 19 July 1976 (see (1976) 178 C.A.R. 1107) and recorded the alteration to the eligibility rule on 2 August 1976, which date is the date on and from which such recorded alteration took effect. Since 2 August 1976 r.6 has been further amended so that after the last of the numerous industries or callings then set out in the rule viz. "basil tanners and their assistants" the rule reads "shall be entitled to become and remain members of the Union and all persons elected or appointed as Officers of the Union shall be entitled to remain members of the Union". The actual date when this latter amendment was recorded pursuant to s.139(3) was not before the Court but from copies of the printed rule-book which were tendered it would appear to have been in 1979 or early 1980. Mr Johnson who appeared for the applicant agreed that no point was taken that certified copies of the rules at relevant times had not been placed before the Court.

Relevant amendments to r.4

Alterations to the definitions of "Officer" in r.4(e) and "Organiser" in r.4(h) set out above were certified by the Industrial Registrar on 17 March 1977 pursuant to s.139(4) of the Act. By such amendments to word "organiser" was deleted from the definition of "Officer" and the words "a member" were substituted for the words "an officer" in the definition of "Organiser". No relevant alteration to such definitions has been made since 17 March 1977.

Section 171C of the Act was considered by the Australian Industrial Court in Egan and Davis -v- Harradine and Others 6 A.L.R. 507. At p.543 Sweeney and Evatt JJ. in their joint reasons for judgment said :

"Section 171F goes beyond the mere question of validity of the particular act and requires that the act shall be deemed to have been done in compliance with the rules of the organization or branch. The effect of this is to go beyond the mere validity of a particular act. As we said in the ruling, the section adjudges or determines conclusively that the act was done in compliance with the rules. Its effect is that if in fact there was not compliance with the rules the section notionally alters those facts (cf Hunter Douglas Australia Pty. Ltd. -v- Perma Blinds (1970) 122 CLR 49 at 52 and 57; (1969) ALR 676 at 677-8; (1970) ALR 824 at 827). In considering its application one must look at the rules of the organization or branch and determine from it what was required to be done to be in compliance with them for the validation of the particular act. Whatever was required by the rules for the act to be valid is then conclusively adjudged to have been done. The effect of the section is to require the act to be deemed to have been done in compliance with rules. This involves an adjudment that at that time there was compliance and there is a presumption of continuance which, however, in our view is rebuttable. If there were no rules of a branch or an organization, as the case may be, then the section cannot operate. It cannot both notionally alter a set of facts so that those facts correspond with what was required by rules to be done until there are such rules."

Mr Johnson has asked that the Court decline to follow this part of Egan's case or alternatively sought to distinguish it from the circumstances of the present case.

Although this Court is not bound to follow decisions of the Australian Industrial Court, such decisions are persuasive. I am of the view that the opinion expressed by Sweeney and Evatt JJ. set out above as to the effect of the provisions of s.171F in the circumstances as related in Egan's case (supra.) is correct. The circumstances of the present case, in my view, are such that attract the observations and principles set out in Egan's case and those principles should be applied.

This then means that it must be adjudged that :-

1. Mr Dunnery is deemed for all purposes to have been a member of the organization for at least 5 years prior to 1974.
2. On his appointment in 1974 as a Branch Executive Committeeman Mr Dunnery is deemed to have become an officer of the organization in accordance with the then rules and as such officer was then entitled to remain a member.
3. In 1975 when he was appointed an organiser and again in 1976 when he was first nominated for and elected to that office he is deemed for all purposes to have then been a member of the organization for at least 5 years and then to have been continually financial for at least 3 years immediately prior to that date (rr.51 and 68).
4. On his appointment in 1975 and his election in 1976 to the office of organiser he became an officer within the meaning of that expression in r.6 and was entitled to remain a member of the organization.

Although since 17 March 1977 the definition rule (r.4) purports to provide that an organiser is no longer an "Officer" of the organization, such definition is to "be taken as a guide" only. This in my view, is similar to the expression "unless a contrary meaning is intended" one often sees in a definition section of an Act of Parliament or in rules of other organizations registered under the Act. It is clear that since March 1977 the expression "an officer" in r.6 must have a meaning not limited to those persons holding the offices referred to in r.4(e). In my view the expression would necessarily have to include at least a full time elected organiser who held office within the meaning of that word in the Act (s.4) and which was at all relevant times an office referred to in the rules of the organization as a salaried office (r.68). If this were not so then, since 17 March 1977 any member of the organization who was undoubtedly a financial member when he took office as a full time organiser would immdiately cease to be eligible under r.6 to remain a member of the organization and, in accordance with r.52, be incapable of holding office. Accordingly, Mr Dunnery, since at least 1976 has remained an officer within the meaning of that expression in r.6.

Consequently it is unnecessary to determine a further submission made by Mr Trew that as the effect of the alterations made to the definition of "Officer" and "Organiser" in r.4 on 17 March 1977 was that the eligibility rule, r.6, was altered, such alteration in order to be effective necessarily required the consent of the Industrial Registrar pursuant to s.139(3) following an application by the organization pursuant to s.139(1). The observations of the Court in Co-operative Bulk Handling Ltd. -v- Waterside Workers' Federation of Australia and Another (1980) 49 F.L.R. 355 in this regard are opposite. At p.361 the Court there stated:-

"The terms of r.5 (the definition rule) then, and particularly the opening words, seem to us to be strong indications that it was never intended or approved as the conditions of eligibility rule. It is just not conceivable that the Industrial Registrar would give his consent under s.139 of the Act to a rule where its application may be excluded by the context of other rules or where a contrary intention appears. If this was possible a change to the conditions of eligibility for membership could be effected by altering rules to which the consent of the Registrar was not required. This would defeat the clearly stated purpose of the Act. Moreover, it would be most unusual to find the conditions of eligibility for membership set out in a definition rule."

Accordingly Mr Dunnery having been elected a full time organiser in December 1977 pursuant to being nominated for that office on a date not later than 21 June 1977 when nominations therefore closed - a date more than 4 years prior to the date of the application herein, viz. 26 August 1981 - is deemed for all purposes to have then been a member of the organization in the legal sense for at least a period of 5 years. The 1977 election cannot now be challenged (see s.159(5) and s.141(6) of the Act). Nor, in my view, can his membership be challenged whilst he remains an officer within the meaning of that expression in r.6 as so determined. He remains such an officer during the currency of the term of his office as such full time organiser which does not expire until at least 31 May 1982.

Consequently the preliminary point taken by Mr Trew and supported by Mr Quick should be upheld. The Court accordingly finds that there has been no irregularity in the nominations of Mr Dunnery for the respective offices which the returning officer in the present election has accepted. Orders will be made accordingly at the appropriate time.

This then leaves for consideration the further alleged irregularities that several persons who have been accepted as members of the Branch of the organization and who have paid moneys purporting to be contributions as members of the organization are to be denied ballot papers in the current election. The Court will now hear evidence and submissions as to these alleged irregularities.