Armstrong v Elliott and and Elliott v Armstrong
[1997] IRCA 70
•14 March 1997
DECISION NO:70/97
CATCHWORDS
INDUSTRIAL LAW - registered organisation - rules - performance and observance - powers to amend rules - whether power of national council limited - autonomy of branches - branch power to make rules for internal management - whether national council could make rule excluding branch power - whether timing of branch election a matter of the internal management of branches - rules altered by postal ballot of national council - whether amendment of proposal possible.
Workplace Relations Act 1996 s 195(1)(b)(iv), s 196, s 205,
s 209.
Industrial Relations Court Rules o 29 r 2.
Imlach v. Daley (1985) 7 FCR 457.
Roots v. Mutton (1978) 32 FLR 15.
Australian Transport Officers Federation v. State Public Services Federation (1981) 50 FLR 438.
JAN ARMSTRONG V. ROBERT ELLIOTT & ORS
NO. VI 2789 of 1996
AND
ROBERT ELLIOTT V. JAN ARMSTRONG & ORS
NO. VI 2790 of 1996
JUDGE:GRAY J.
PLACE:MELBOURNE
DATE:14 MARCH 1997
IN THE INDUSTRIAL RELATIONS )
) No. VI 2789 of 1996
COURT OF AUSTRALIA ) No. VI 2790 of 1996
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
JAN ARMSTRONG
Applicant
- and -
ROBERT ELLIOTT, R. VAN AREND, M. BARRETT, J. BREMNER,
L. BUTLER, D. BYRON, P. CLAPHAM, B. COFFEY, T. CONOULTY,
F. CORNFORD, S. CRONIN, D. DAVIES, D. DEWES, K.D. GEDDES,
H. DALTON, K. DARVENIZA, T. DOLAN, J. DRUMMOND, F. DYSON,
S. EICHENBAUM, P. ELLISON, J. EVANS, V. FAHEY, B. GANNINO,
T. GARCIA, L. GILLETT, G. GILLS, B. GOULDING, B. GUNNING,
M. HALL, J. HANKINSON, H. HARRISON, M. HART, R. HARVEY,
P. HEREWINI, D. HILL, M. HOPGOOD, P. INGWERSEN, J. JACKSON,
J. JENSZ, J. KANARA-HOBSON, E. KELLY, J. KENNEISON, I. KNIGHT,
M. MALONEY, W. MASSEY, S. McCORMACK, W. MILES,
Z. MITCHELL, J. MITCHELL, K. MOORE, L. MURDOCH, D. MURPHY,
N. MYERS, J. NAVAS, S. NOLAN, R. O'BRIEN, S. POLLARD,
J. RICHMOND, G. ROGERS, K. RYAN, A. SHAW, G. SHELVERTON,
C. THOMSON, M. TIMBS, B. TOLLEY, T. TRACEY, L. WALSH,
D. WHITWORTH, L. WILLIAMS, M. WILLIAMSON, A. WILSON,
B. WOODWARD, C. BURNS, R. FELTHAM, T. HAWKINS,
A. LILLICRAP, J. MARGAETTS, P. MOYLAN, S. O'CONNOR, K. RUBY,
G. WEBSTER, J. WILSON, J. YAMMOUNI, J. MITCHELL and
K. McINTOSH
Respondents
AND
ROBERT ELLIOTT
Applicant- and -
JAN ARMSTRONG, G. GILLS, C. NADER,
P. ELLISON, J. JENSZ, D. GILLESPIE,
F. CARROL, M. GORGAL, R. McCUBBIN,
S. McCORMACK, R. VAN AREND, D. GREGOR,
J. KENNIESON, F. LANCASTER, V. FAHEY
Respondents
JUDGE: Gray J.
PLACE: Melbourne
DATE: 14 March 1997
MINUTE OF ORDER
THE COURT ORDERS THAT:
The preliminary questions be answered as follows:
Question 1:Do the union's rules confer on the national council the power validly to make the changes to rule 52(e)(i)-(v) which it made by postal ballot, notice of which was given on 15 November 1996?
Answer:Yes.
Question 2:If the answer to question 1 is yes, do the union's rules permit or require that, in the course of a postal ballot on a national executive proposal to change the union rules the national council may or must vote upon any motion to amend the proposed rule change?
Answer: No.
Question 3:If the answer to questions 1 and 2 is yes, was the motion moved by Jan Armstrong and Peter Ellison a proposed amendment to the national executive rule change proposal?
Answer:It is unnecessary to answer this question.
Question 4:If the answer to questions 1, 2, and 3 is yes, was the amendment moved by Jan Armstrong and Peter Ellison passed?
Answer:It is unnecessary to answer this question.
Question 5:Does rule 47(d) empower a branch to make a rule which prescribes a timetable for the conduct of its periodic elections?
Answer:No.
Question 6:If the answers to question 1 and 5 is [sic.] yes and the answers to each of questions 2, 3 and 4 is [sic.] no, is a branch under rule 47(d) able validly to make a rule which prescribes a timetable for the conduct of its periodic elections?
Answer:It is unnecessary to answer this question.
The parties have leave to bring in minutes of orders dealing with the rules to show cause, in so far as they can be dealt with, in accordance with the answers given to the preliminary questions.
The proceedings be listed for mention at 4.15 p.m. on Monday, 17 March 1997, for the consideration of the minutes of orders brought in and the making of orders.
The proceedings be listed for further directions on 18 March 1997.
NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
) No. VI 2789 of 1996
COURT OF AUSTRALIA ) No. VI 2790 of 1996
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
JAN ARMSTRONG
Applicant
- and -
ROBERT ELLIOTT, R. VAN AREND, M. BARRETT, J. BREMNER,
L. BUTLER, D. BYRON, P. CLAPHAM, B. COFFEY, T. CONOULTY,
F. CORNFORD, S. CRONIN, D. DAVIES, D. DEWES, K.D. GEDDES,
H. DALTON, K. DARVENIZA, T. DOLAN, J. DRUMMOND, F. DYSON,
S. EICHENBAUM, P. ELLISON, J. EVANS, V. FAHEY, B. GANNINO,
T. GARCIA, L. GILLETT, G. GILLS, B. GOULDING, B. GUNNING,
M. HALL, J. HANKINSON, H. HARRISON, M. HART, R. HARVEY,
P. HEREWINI, D. HILL, M. HOPGOOD, P. INGWERSEN, J. JACKSON,
J. JENSZ, J. KANARA-HOBSON, E. KELLY, J. KENNEISON, I. KNIGHT,
M. MALONEY, W. MASSEY, S. McCORMACK, W. MILES,
Z. MITCHELL, J. MITCHELL, K. MOORE, L. MURDOCH, D. MURPHY,
N. MYERS, J. NAVAS, S. NOLAN, R. O'BRIEN, S. POLLARD,
J. RICHMOND, G. ROGERS, K. RYAN, A. SHAW, G. SHELVERTON,
C. THOMSON, M. TIMBS, B. TOLLEY, T. TRACEY, L. WALSH,
D. WHITWORTH, L. WILLIAMS, M. WILLIAMSON, A. WILSON,
B. WOODWARD, C. BURNS, R. FELTHAM, T. HAWKINS,
A. LILLICRAP, J. MARGAETTS, P. MOYLAN, S. O'CONNOR, K. RUBY,
G. WEBSTER, J. WILSON, J. YAMMOUNI, J. MITCHELL and
K. McINTOSH
Respondents
AND
ROBERT ELLIOTT
Applicant
- and -
JAN ARMSTRONG, G. GILLS, C. NADER,
P. ELLISON, J. JENSZ, D. GILLESPIE,
F. CARROL, M. GORGAL, R. McCUBBIN,
S. McCORMACK, R. VAN AREND, D. GREGOR,
J. KENNIESON, F. LANCASTER, V. FAHEY
Respondents
JUDGE: Gray J.
PLACE: Melbourne
DATE: 14 March 1997
REASONS FOR JUDGMENT
The Proceedings
The Health Services Union of Australia ("the union") is an organisation of employees, registered pursuant to what is now called the Workplace Relations Act 1996 ("the Act"), which was formerly called the Industrial Relations Act 1988. By r. 46 of its rules, the union has fourteen branches. There is a branch covering each of the states of New South Wales, South Australia and Queensland. Victoria has five branches and each of Western Australia, Tasmania and the Australian Capital Territory has two.
Ms. Jan Armstrong, the applicant in matter no. VI2789 of 1996 and the first respondent in matter no. VI2790 of 1996, is the branch secretary of the Victoria No. 1 Branch of the union. Mr. Robert Elliott, the first respondent in matter no. VI2789 of 1996 and the applicant in matter no. VI2790 of 1996, is the national secretary of the union. Together with Ms. Armstrong and Mr. Elliott, the remaining respondents in matter no. VI2789 of 1996 make up the national council of the union. Ms. Armstrong and the other respondents in matter no. VI2790 of 1996 make up the branch committee of the Victoria No. 1 Branch of the union.
The two proceedings, which have been ordered to be heard together, concern attempts by the national council and the branch committee of the Victoria No. 1 Branch respectively to make rules governing the timetables according to which elections are to be conducted. On 31 December 1996, North J. granted a rule to show cause, calling upon the members of the national council (other than Ms. Armstrong, who was the applicant) to show cause why certain orders should not be made that they perform and observe the rules of the union. The particular orders sought were, first, that Mr. Elliott perform and observe the rules of the union, and in particular r. 47(e), by forthwith lodging an application with the Industrial Registrar for the certification of certain rule changes made by the Victoria No. 1 Branch on or about 18 November 1996, and, second, that the respondents and each of them perform and observe the rules of the union by treating as null and void and of no effect the postal ballot of the national council held between 16 and 23 December 1996. That postal ballot was the means by which the national council adopted the changes to the rules which it seeks to uphold.
Also on 31 December 1996, North J. granted a rule to show cause, calling upon the members of the branch committee of the Victoria No. 1 Branch to show cause why certain orders should not be made that they perform and observe the rules of the union. The orders sought the performance and observance of rr. 47(d) and 61(e), first by treating as null and void and of no effect the purported decision of the Victoria No. 1 Branch committee on 1 November 1996 to convene a special general meeting of the branch and, second, by treating as null and void and of no effect the purported decision of the special general meeting of the Victoria No. 1 Branch held on 18 November 1996 to make alterations to r. 52(e) of the rules of the union. A further order sought was that Ms. Armstrong perform and observe the rules of the union by withdrawing her request dated 21 October 1996 to the Industrial Registrar to conduct elections for offices in the Victoria No. 1 Branch and not make any similar request. In each case, the application is made pursuant to s. 209 of the Act.
On 6 February 1997, I made orders pursuant to o. 29 r. 2 of the Industrial Relations Court Rules for the decision of questions separately from any other question before the trial in the proceedings. I directed that the parties file agreed questions. The parties were able to agree on the six questions which are the subject of these reasons for judgment. Counsel for Ms. Armstrong sought the determination of additional questions. On 17 February 1997, I heard argument on that issue and refused to deal with the proposed additional questions, on the ground that any order based on the negative answers to them would infringe the prohibition in s. 209(6) of the Act on the making of orders under s. 209 that would have the effect of treating as invalid an election to an office in an organisation or a step in relation to such an election.
The preliminary questions considered in these reasons for judgment are as follows:
"1.Do the union's rules confer on the national council the power validly to make the changes to rule 52(e)(i)-(v) which it made by postal ballot, notice of which was given on 15 November 1996?
2.If the answer to question 1 is yes, do the union's rules permit or require that, in the course of a postal ballot on a national executive proposal to change the union rules the national council may or must vote upon any motion to amend the proposed rule change?
3.If the answer to questions 1 and 2 is yes, was the motion moved by Jan Armstrong and Peter Ellison a proposed amendment to the national executive rule change proposal?
4.If the answer to questions 1, 2, and 3 is yes, was the amendment moved by Jan Armstrong and Peter Ellison passed?
5.Does rule 47(d) empower a branch to make a rule which prescribes a timetable for the conduct of its periodic elections?
6.If the answers to question 1 and 5 is [sic.] yes and the answers to each of questions 2, 3 and 4 is [sic.] no, is a branch under rule 47(d) able validly to make a rule which prescribes a timetable for the conduct of its periodic elections?"
The preliminary questions were argued on 24 and 25 February 1997. Mr. Rothman of Senior Counsel appeared for Ms. Armstrong and the other members of the branch committee of the Victoria No. 1 Branch. Mr. Hinkley of counsel appeared for Mr. Elliott and most of the members of the national council. There were some members of the national council who did not appear.
The Rules
For the purposes of dealing with the preliminary questions, it is necessary to examine a number of provisions of the rules of the union in detail. The rules are divided into four parts. Part A is entitled "Name, Objects, Membership", part B is entitled "National Organisation", part C is entitled "Branch Organisation" and part D is entitled "General". It is not necessary to look at any provisions in Part A. Part B commences with r. 19, which provides that the officers of the union shall be the national president, the three national vice-presidents, the two national trustees, the national secretary and the national assistant secretary. Rule 20 provides for a national council, consisting of the officers of the union and delegates elected by and from each branch on the basis of one delegate for every 1 000 members or part thereof. Rule 21 is headed "Powers and Duties of National Council". Its relevant provisions are as follows:
"The National Council shall, subject to these Rules and the control by the members as hereinafter mentioned, be the supreme governing body of the Union and have the management and control of the affairs of the Union and, without limiting the generality of the foregoing, shall in particular have power:-
(a)to determine and direct the policy of the Union in all matters affecting the National Council or the Union as a whole;
(b)to make, add to, amend, rescind and/or otherwise alter these Rules;
....
All decisions of the National Council shall be final and shall remain in force unless and until varied, amended or rescinded by it or by a plebiscite of members of the Union.
Provided that none of the powers conferred on the National Council by these Rules shall enable the National Council to alter an Entrenched Rule as defined herein."
Rule 22 provides for meetings of the national council every two years in the month of October or at such other time as is determined by the national council or the national executive. Provision is also made for special meetings of the national council by resolution of the national council or national executive or by decision of the national secretary in conjunction with the national president. Two months' notice of the biennial meeting of the national council and fourteen days' notice of any special meeting must be given by the national secretary to each branch secretary and each member of the national council. Rule 23(b) requires the agenda for a biennial meeting of the national council to be forwarded to each branch secretary and each member of the national council at least thirty-six days prior to that meeting. Rule 23(d) requires the agenda for a special meeting of the national council to be forwarded with the notice of such meeting.
Rule 25 is headed "Matters Requiring Decision Between National Council Meetings". It is necessary to set out that rule in its entirety:
"(a)The National Executive or the National Secretary in conjunction with the National President may determine that any matter requires a decision of the National Council between biennial meetings of the National Council and that such matter be submitted to the National Council for decision in accordance with either of the procedures prescribed by clauses (b) and (c) of this Rule.
(b)(i) Where it is determined that the matter be submitted to the National Council for decision by ballot of the members of the National Council, such matter may be forwarded by post, lettergram or telegram to each of the members of the National Council in such form as is determined by the National Executive.
(ii)The members of National Council shall record their vote of the matter so submitted by post, lettergram or telegram addressed to the National Secretary and the decision of the majority shall be binding as if such decision were obtained by vote at a regularly constituted meeting of the National Council.
(iii)All votes of their confirmation shall be signed by members of National Council recording the same. If any vote be recorded by means other than letter then such vote shall be confirmed by letter signed by the member of the National Council.
(c)(i) Where it is determined that the matter be submitted to the National Council for decision by a meeting of members of the National Council conducted by such telephonic or electronic means as may from time to time be available, the National Secretary shall as soon as is practicable arrange such a meeting.
(ii)The members of the National Council shall participate in such a meeting and the decision of the majority shall be binding as if such decision were obtained at a regularly constituted meeting of the National Council.
(d)If -
(i)in the course of a ballot conducted pursuant to clause (b) of this Rule, a majority of members of the National Council notify the National Secretary, or,
(ii)in the course of a meeting conducted pursuant to clause (c) of this Rule, a majority of the members of the National Council resolve, that the matter as submitted to them is of such importance as to require a special meeting of the National Council, then such special meeting of the National Council shall be convened forthwith by the National Secretary to meet at such time and
place as the National Executive shall determine.
(e)If a special National Council meeting be held for the purposes of the immediately preceding clause such other matters as the National Executive or National Council shall determine may be submitted to the meeting."
Rule 26 provides for a national executive, consisting of the officers of the union and twenty-two ordinary members. Rule 29 contains detailed provisions covering the election of those officers and the members of the national executive. By subr. (d)(i), a returning officer is to be appointed by the national executive. By subr. (e)(ii), nominations are to close not later than 14 June and, by subr. (e)(v), any ballot is to be closed not later than 14 September immediately preceding the relevant meeting of the national council.
Still within Part B of the rules is r. 44, entitled "Rights Of Branches". It provides as follows:
"(a)All Branches shall be completely and absolutely autonomous within the ambit of these Rules, and shall be responsible for their own Government and administration. The Branch shall be the basic unit of the Union, and shall possess full and adequate powers to conduct its own affairs and to seek its objectives under the Rules. The control of the Branch resides exclusively in the members of the Branch, who shall be bound by these Rules. This Rule can never be altered except by a ballot of all financial members of the Union. Such alteration to be carried must receive a majority vote of two-thirds of the financial members of the Union.
(b)Subject to the Rules, or Federal Policy, nothing shall alienate the right of members assembled in the General Meeting to determine the policy of the Branch. The decision of properly constituted General Meetings shall be binding on all members of the Branch.
(c)Where the National Council is satisfied that a Branch has failed to carry out these Rules of the Rules of the Branch or to comply with the requirements of any Industrial Arbitration Law or of any Industrial Registrar, it shall have power to call a general meeting of financial members of that Branch and to take such steps as may be necessary to enforce due compliance with the Rules and/or the law."
Rule 45 contains provisions for the conduct of a national plebiscite, at the discretion of the national council or the national executive, or if requested by resolution of special general meetings of three branches or requisition signed by not less than five per cent of the financial members of the union. The national council and national executive do not have the power to cause a plebiscite to be held about or in respect of "an Entrenched Rule as defined herein".
Part C of the rules begins with r. 46. I have already referred to r. 46(a), which specifies the existing branches of the union. Subrule (db) defines the persons eligible to be members of the Victoria No. 4 Branch. It contains the following provision:
"(ii)Entrenching Provision
This Rule 46(db) shall be an "Entrenched Rule", that is, notwithstanding any other provision of these Rules, it shall not be altered except with the approval of the members of the Victoria No. 4 Branch assembled in general meeting. The requisite approval of the Victoria No. 4 Branch will only be obtained if, at a special general meeting (called in accordance with Rule 61), a vote is held and a majority of the members present vote in favour of the alteration."
Rule 46(n) provides:
"The National Council shall have the power to -
(i)alter the area embraced by any Branch with the consent of that Branch and any other Branch concerned, and;
(ii)amalgamate any Branch with another with the consent of the Branches concerned; and
(iii)constitute a new Branch or Branches in or within any State or Territory with the consent of any existing Branch concerned.
Provided that, where National Council is exercising or is seeking to exercise any of the powers conferred upon it by this clause for the purpose of or in the course of amalgamating the Union with any other organisation or association of employees, the consent of any Branch of Branches shall not be required.
Provided that the powers conferred in sub-rule 46(n) shall not empower the National Council to alter an Entrenched Rule as defined herein."
Rule 47 is headed "Branch Management". It provides as follows:
"(a)The Government, management and the control of the affairs of each branch shall, subject to these rules and any proper direction of the National Council or the National Executive be vested in a Branch Committee.
(b)It shall be competent for any one branch or more than one branch in any State or Territory to form a State Council or Conference, the Rules of such Council or Conference to be drawn up by the participating branches and submitted to National Council for adoption. Such State Council or Conference shall have no power other than that of recommendation.
(c)Subject to clause (d) hereof each branch shall be bound by these rules.
(d)Each branch may by special general meeting of its members make rules from time to time for its own internal management and may therefore add to, amend, rescind or alter any of these rules insofar as they relate to the internal management of a branch. The New South Wales Branch Committee of Management shall have the powers vested in it as are outlined in the first sentence of this paragraph.
(e)Any rule or rules made by a branch pursuant to clause (d) of this rule shall be forwarded to the National Secretary who, upon receipt of any information and documentation necessary for the purpose, shall forthwith apply to the Industrial Registrar for certification of the same and upon certification such rule or rules shall form part of the rules of the Union for all purposes other than Rule 70 but shall apply only to the Branch initiating the same."
Subrule (f) is not relevant to the present proceeding.
Rule 48 provides for branch officers, including a branch secretary. Rule 49 provides for the powers of the branch committee. Among those powers and duties is the power in subr. (j) "to instruct its delegates to the National Council how to vote on any matter".
Rule 52 is headed "Branch Elections". Its relevant provisions are as follows:
"(a)General
(i)The provisions of this rule shall apply to all elections for the following Officers in a branch -
(a)officers of a branch;
(b)ordinary members of a Branch Committee; and,
(c)branch delegates to the National Council.
(ii)All such elections shall be conducted by secret postal ballot.
(b)Tenure of Office
All Officers of a branch and ordinary members of a Branch Committee shall take office from the completion of the Annual General Meeting of the branch in the year in which they are elected and shall hold office for a period of four years or until successors thereto have been elected and taken office.
Branch Delegates to the National Council shall take office from the time of declaration of the ballot in which they are elected and shall hold office for a period of four years or until successors thereto have been elected and taken office.
(c)Qualifications for Office
(i)Except in the case of an extraordinary vacancy any nominee for the position of a full time paid Branch Officer shall have been a member of the Union for not less than twelve months immediately preceding his/her nomination and shall be a financial member of the Union as at the date of his/her nomination.
(ii)A nominee for any other position shall have been a member of the branch for not less than three months immediately preceding his/her nomination and shall be a financial member of the Union as at the date of his/her nomination. A nomination may be withdrawn by a nominee at any time prior to the closing of nominations.
(iii)Provided that a nominee may not be nominated both as an officer of the Branch and as an ordinary member of the Branch Committee.
....
(e)Conduct of Elections
(i)Not later than the 1st day of June in the year of an election, the Returning Officer shall call for nominations by advertisement in a daily newspaper circulating throughout the State or Territory in which the branch has members and shall issue nomination forms to all shop stewards and to any financial member requesting the same.
(ii)Nominations shall be in writing, signed by the nominee and the nominator (who shall be a financial member of the branch) and shall be delivered to the Returning Officer at the office of the branch not later than 5 pm on the 1st day of July in the year of the election. A nomination may be withdrawn by a nominee at any time prior to the closing of nominations.
......
(v)If more nominations are received than there are vacancies for a position, he/she shall have ballot papers printed and delivered to him/her containing the names of the candidates for each position in alphabetical order, indicating the number to be elected to each position, the manner in which votes shall be recorded and the date and the time of closing of the ballot such date being not later than the 15th day of August immediately following the closing of nominations.
......".
Rule 61 relates to branch general meetings. Its relevant provisions are:
"(c)A special General Meeting of the branch may be called at any time on a resolution of the Branch Committee being carried that such a meeting be held.
(d)A Special General Meeting of the branch shall be called by the Branch President or the Branch Secretary upon receipt by him/her of a request signed by not less than 200 financial members or five per cent of the financial members of the branch, whichever is the lesser amount. Such request shall state the business to be discussed at the meeting and shall contain the signature and name written in block letters of each petitioner and shall also contain a statement that the petitioner has read and understood the request prior to attaching his or her signature.
(e)Not less than one month's written notice of the time, place and agenda of all General Meetings shall be given to each shop steward of the branch. Providing that when a matter requires immediate attention such lesser notice of a Special General Meeting as may be determined by the Branch Committee may be given.
(f)A Special General Meeting shall not be competent to deal with any matter other than the reason set out by the petition of members or the notification of such meeting as has been given by the Branch Committee."
Part D of the rules contains r. 70, which is headed "Alterations Of Rules" and provides as follows:
"(a)The National Council shall have power to make new Rules or to add to, amend, rescind or otherwise alter these rules at a meeting of the National Council or by postal ballot of the members of the National Council conducted pursuant to Rule 25 of these rules.
(b)Notice of any proposal for the making of a new Rule or for the adding to, amendment, rescission or other alteration of any of these Rules shall be given in writing to each member of the National Council and to the Secretary of each branch at least one month prior to the relevant meeting of the National Council or to the commencement of the postal ballot (as the case may be) provided that any such proposal may itself be amended when being considered by the relevant meeting.
(c)Nothing contained in this Rule shall derogate from the power conferred by Rule 47 on a branch to make Rules for its own internal management but details of any proposal to make such a Rule shall be contained in the notice calling the special general meeting of members at which the proposal is to be considered."
The Facts
It was agreed between the parties that I should not determine questions of fact in answering the preliminary questions. It is necessary to have regard to the facts to some degree, in order to answer those questions, and in order that the answers can be understood. The following is a summary of my understanding of the relevant facts from the materials provided. It is not intended to contain definitive findings of fact.
Pursuant to r. 52, elections for the branch officers and branch committee of the Victoria No. 1 Branch were due to be conducted in 1997. By letter dated 21 October 1996, Ms. Armstrong advised the Industrial Registrar of the requirement to conduct these elections and requested the Industrial Registrar to arrange for them to be conducted by the Australian Electoral Office (properly called the Australian Electoral Commission). The request was duly conveyed. On 31 October 1996, the returning officer, Mr. John Nellor of the Australian Electoral Commission, proposed a timetable for the elections. Nominations were to open on 2 January 1997 and close on 23 January. Any ballot required was to open on 20 February and close on 13 March 1997.
On 24 October 1996, the national executive met. It discussed the timing of elections in branches, including the question whether r. 52 could be construed as permitting the early conduct of those elections, so as to result in a gap of several months between an election and the date on which the successful candidate took up office.
On 29 October 1996, the national president and the national secretary sent a memorandum to branch secretaries proposing a change to the rules which would require that nominations be opened and closed in June in the year of an election. It was pointed out that this would mean that a ballot could be conducted in July and August, in time for the successful candidates to take up a new term starting in September, or in October in the case of national elections. The memorandum sought the views of branch secretaries by 5 November.
On 1 November 1996, a special branch committee meeting of the Victoria No. 1 Branch was held. Ms. Armstrong reported on the proposal contained in the memorandum of the national president and the national secretary. The branch committee resolved as follows:
"The Committee notes that this meeting has been called in accordance with rule 51 by a request of not less than one third of the members of the Branch Committee of Management of the Victoria No. 1 Branch. The Branch Committee of Management resolves in accordance with Rule 61(c) that a Special General Meeting of members be called to consider proposed new rule 52(e)(xiv) which is to be in the following form:
Notwithstanding the provisions of rule 52(e), the 1997 elections in the Victoria No. 1 Branch for the offices of Branch President (1) Branch Senior Vice President (1), Branch Junior Vice President (1), Branch Trustees (2), Branch Assistant Secretary (1), and Branch Committee of Management Members (8), to be held in accordance with the following timetable:
Nominations to open on 2 January 1997
Nominations to close at 5.00 pm on 23 January 1997
Ballot to open on 20 February 1997
Ballot to close at 9.00 am on 13 March 1997
The Branch Committee of Management resolves pursuant to rule 61(e) that consideration of this new rule requires immediate attention and accordingly fixes the 18 November, 1996 at 6.00 pm for the holding of the proposed Special General Meeting of the Branch."
By undated memorandum, the national secretary and the national president, pursuant to r. 28, called a meeting of the national executive to be conducted by telephone on 14 November 1996. The memorandum stated that "The matter to be addressed at the National Executive meeting is the Executive's position on proposals to clarify the Union's Rules regarding the opening and closing of nominations in branch and national elections."
On 12 November 1996, Mr. Elliott sent by facsimile transmission to all members of the national executive documents for their consideration at the telephone meeting on 14 November. The papers included the following motion:
"National Executive determines that the matters of the proposed alterations to the Union's Rules specified in Annexure A to this resolution require a decision of the National Council before the next biennial meeting of the Council and that those proposed alterations be submitted to the National Council for decision by ballot forwarded by post to each member of the National Council in the form of Annexure A to this resolution; and the National Executive directs the National Secretary to give notice by post forthwith to each member of National Council and each Branch Secretary in the form of Annexure B and, one month after that notice, to commence the postal ballot advising members of the National Council to return their ballot papers within four weekdays of delivery of the ballot."
Annexure A to the documents contained a proposed notice of postal ballot of the national council, with instructions as to how to vote, and a yellow ballot paper and a blue ballot paper. The yellow ballot paper contained proposed alterations to r. 29 of the rules of the union, in the following form:
"MOTION
That sub-rules 29(e)(i) and (ii) be rescinded and that the following new sub-rules 29(e)(i), (ii), and (iii) be made:
"(i)The opening date of nominations shall be the 1st day of June in the year of an election and the closing date of nominations shall be the last Friday in June at 5.00 PM.
(ii)Prior to the opening date of nominations the Returning Officer shall call for nominations by notice inserted in the appropriate publication or publications of the Union or by advertisement in daily newspapers circulating throughout the various States and Territories in which the Union has members.
(iii)Nominations shall be in writing, signed by the nominee and nominator (who shall be a financial member of the Union) and shall be delivered to the Returning Officer at the registered office of the Union prior to the time of the close of nominations. A nomination may be withdrawn by a nominee at any time prior to the close of nominations."
and that sub-rules 29(e)(iii) to (xiii) be renumbered sub-rules 29(e)(iv) to (xiv) respectively."
The blue ballot paper contained proposed alterations to r. 52(e) of the rules of the union, in the following form:
"MOTION
That sub-rules 52(e)(i) and (ii) be rescinded and that the following new sub-rules 52(e)(i), (ii), (iii), (iv) and (v) be made:
"(i)The opening date of nominations shall be the 1st day of June in the year of an election and the closing date of nominations shall be the last Friday in June at 5.00 PM.
(ii)Prior to the opening date of nominations the Returning Officer shall call for nominations by advertisement in a daily newspaper circulating throughout the State or Territory in which the branch has members and shall issue nomination forms to all union representatives and sub-branch officials and to any financial member requesting the same.
(iii)Nominations shall be in writing, signed by the nominee and nominator (who shall be a financial member of the branch) and shall be delivered to the Returning Officer at the office of the branch prior to the time of the close of nominations. A nomination may be withdrawn by a nominee at any time prior to the close of nominations.
(iv)Notwithstanding any other provisions of these Rules, sub-rules 52(e)(i), (ii) and (iii) shall apply to all Branch Elections to be held on or after the 1st January 1997 and/or to any step taken on or after that date in relation to a Branch Election and those sub-rules shall prevail over any other Rule (whether made or certified before or after this sub-rule is certified) which is inconsistent with them or any of them.
(v)Notwithstanding the provisions of any of these Rules, sub-rules 52(e)(i), (ii), (iii), (iv) and this sub-rule may be added to, amended, rescinded or otherwise altered only by the National Council in accordance with sub-rule 21(b) and/or sub-rules 70(a) and (b) and only the National Council may make any rule in respect to the subject matter of those sub-rules and this sub-rule.
and that sub-rules 52(e)(iii) to (xiii) be renumbered sub-rules 52(e)(vi) to (xvi) respectively."
Annexure B to the documents forwarded to members of the national executive consisted of an explanatory memorandum of the proposed rule alterations from Mr. Elliott, attached to which were various documents relating to the timetable of the elections in the Victoria No. 1 Branch and a letter from the branch secretary of the Victoria No. 5 Branch.
At its meeting on 14 November 1996, the national executive adopted the motion put forward in Mr. Elliott's facsimile transmission of 12 November. Mr. Elliott then gave notice of the postal ballot to all members of the national council and to all branch secretaries, as required by rule 70(B).
On 18 November 1996, the special general meeting of the Victoria No. 1 Branch was held. The meeting adopted by an overwhelming majority the proposed change to r. 52(e) contained in the resolution of the branch committee of 1 November 1996. It is this rule amendment which is the subject of the order sought against Mr. Elliott alone in matter no. VI2789 of 1996. The processes whereby the rule amendment was adopted are the subject of matter no. VI2790 of 1996, but the matters in issue in respect of them are not raised by the preliminary questions.
By letter dated 11 December 1996, Ms. Armstrong and Mr. Peter Ellison, senior vice-president of the Victoria No. 1 Branch and a member of the national council, wrote to Mr. Elliott, enclosing what was described as "an amendment to the motion to amend r. 52(e) which is subject to a postal ballot of national council members". They requested that the amendment be circulated, together with a ballot paper which enabled the voters to vote for or against it. They also requested that a vote on the original motion be deferred until the outcome of the vote on the amendment was known. The purported amendment was in the following terms:
"Amendment to Motion Proposed by National Executive
That the motion proposed by National Executive as circulated to National Council members by the National Secretary be amended by:-
"That the motion proposed by National Executive be amended by:-
(a)deleting all the words after the word "That" in lines 1 and 2 of the motion and inserting in lieu thereof the following words:-
"National Council refers to special general meetings of members in each branch the question of whether the following new sub-rules should be made to replace sub-rules 52(e)(i) and (ii):"
(b)deleting paragraphs (iv) and (v); and
(c)deleting "sub-rules 52(e)(vi) to (xvi)" and "sub-rules 52(e)(iv) to (xiv)" in the penultimate line of the motion."
Moved:Jan Armstrong
Seconded:Peter Ellison"
On 16 December 1996 the notice of postal ballot of the national council and the ballot papers were posted to the members of the national council. Attached to them was a copy of the amendment proposed by Ms. Armstrong and Mr. Ellison, together with the following:
"Addendum.
Please find attached an alternative proposal for changes to Rule 52(e) proposed by Jan Armstrong and Peter Ellison, branch delegates of the Victoria No 1 Branch. This has been included with the postal ballot material following a request from Delegates Armstrong and Ellison.
The attached proposal is NOT one which the National Executive resolved to put to a postal ballot of National Council.
Nevertheless, branch delegates to National Council are free to indicate in writing their position regarding the attached proposal if they wish to do so.
Rob Elliott
NATIONAL SECRETARY
16 December 1996".
The national council voted overwhelmingly in favour of each of the proposals put in the postal ballot. Of those who voted against the proposal with respect to r. 52, approximately six expressed views in favour of the amendment proposed by Ms. Armstrong and Mr. Ellison.
Mr. Elliott applied to the Industrial Registrar for the certification of the rule amendment so made, pursuant to s. 205 of the Act. Ms. Armstrong applied to the Court for interim orders, pursuant to s. 209(4) of the Act, with a view to preventing the certification of the amendments to r. 52 adopted by the national council. On 31 December 1996, North J. granted an interim order, having the effect of restraining Mr. Elliott from taking any step to procure the certification of the rule amendments. On the same day, apparently unaware of the order, a deputy industrial registrar granted a certificate in respect of all of the amendments the subject of the postal ballot of the national council.
On 21 February 1997, the deputy industrial registrar issued a document headed "Revocation of Certificate", by which he purported to revoke his certificate dated 31 December 1996. The validity of that document was not a matter argued before me. It was agreed that, so far as possible, I should deal with the preliminary questions without regard to the question whether the amendments which were certified turn out to have been, or not to have been, part of the rules of the union immediately after 31 December 1996.
Question 1
The first question raises the issue of the extent of the power of the national council to make rules binding on branches of the union.
The power to make, add to, amend, rescind and otherwise alter the rules is a specific head of power conferred on the national council by r. 21(b). In its terms, it is an absolute power, which could be used to make provisions in the rules which were binding on branches to any extent and in any way. The power is qualified in r. 21 in two respects. The first is the specific qualification in the proviso to the rule, which deprives the national council of power to alter an entrenched rule. Although the rule uses the phrase "Entrenched Rule as defined herein", there appears to be no definition of the phrase "Entrenched Rule". Instead, it is necessary to search the rules for specific provisions that a rule is an entrenched rule. Such a provision appears, for example, in r. 46(db)(ii). Although not described as an "Entrenched Rule", r. 44(a) contains what might be regarded as an entrenching provision. The second respect in which the absolute power in r. 21(b) is qualified relevantly is that the national council possesses its power "subject to these Rules". It follows that, if some relevant limitation on the powers of the national council to deal with the rules is to be found elsewhere in the rules, effect must be given to it. This is so even if the power of the national council would extend to the repeal of the relevant limitation; unless the limitation be repealed, it must continue to operate and to circumscribe the power of the national council. Questions arose whether r. 44(a), r. 47(d) and r. 70(c) contained relevant limitations.
At first sight, r. 44(a) might appear to constitute a significant limitation on the rule-making power of the national council. The provision that branches shall be "completely and absolutely autonomous", the provision that a branch "shall possess full and adequate powers to conduct its own affairs and to seek its objectives" and that the control of the branch "resides exclusively in the members of the branch" appear far-reaching. This is particularly so when it is seen that they are coupled with a restraint on the alteration of the rule, so that it can only be altered by a ballot of all financial members of the organisation which is carried by a two-thirds majority. In each case, however, those provisions are qualified by the words which succeed them: "within the ambit of these Rules", "under the Rules" and "who shall be bound by these Rules". The best sense can be made of the provision when it is viewed as a grant of autonomy within the area delimited by the rules. A branch of the organisation does not have a life independent of the organisation. It is the creature of the rules of the organisation and a part of its structure. To the extent to which it possesses autonomy and powers and is to be controlled only by its members, it possesses those attributes and is to be so controlled only within the area marked out for a branch by the rules. In other words, it would be wrong to view r. 44(a) as a constraint on the national council's power to amend the rules; rather, the national council's powers are part of the constraints on the autonomy and powers of a branch and on the extent of the control of it by its members. If such a view be not taken, the rules lead to a circular process of reasoning, whereby the national council's power to alter the rules is said to be subject to the autonomy of branches, which is in turn subject to the rules, including the national council's power to alter the rules. The circle must be broken at some point, by regarding some provision of the rules as dominant. The structure of the rules and the nature of the union as an organisation registered under the Act dictate that the dominant rule must be that which gives powers to the national council.
Imlach v. Daley (1985) 7 FCR 457 is authority which appears to require r. 44(a) to be read in this way. It concerned the union, which then bore the name Hospital Employees' Federation of Australia. Rule 44(a) was then numbered as r. 35(a) and was in exactly the same terms. The equivalent of the present r. 70 was r. 31. The power to make new rules or to add to, amend, rescind or otherwise alter the rules was restricted to exercise by and at a meeting of the national council. It was expressly made "Subject to Rule[s] 35(a) ... ". The Full Court of the Federal Court of Australia was required to deal with rule amendments, passed by the national council, which had the effect of altering the boundaries of the two branches of the union in Tasmania (rule 46(n) was not then in the form which it now takes). The result was to remove a substantial area of Tasmania from the control of the Tasmania No. 1 Branch and place it under the control of the Tasmania No. 2 Branch. The effect was to reduce the membership of the Tasmania No. 1 Branch from approximately 3 100 to approximately 2 250 and to increase the membership of the Tasmania No. 2 Branch from approximately
1 600 to approximately 2 450. Those who challenged the validity of the rule changes in the appeal clearly put the argument that those changes trespassed upon the complete and absolute autonomy given to branches by what was then r. 35(a); the argument is summarised by Evatt and Northrop JJ, in their joint judgment, at pp. 461-2. Notwithstanding this argument, and the express subjection of the power to amend rules to what was then r. 35(a), the argument received scant attention from the court. After summarising it, Evatt and Northrop JJ went on to refer to the nature of a branch and to the freedom which a registered organisation has to amend its rules, subject only to the constraints in the Act. Their honours concluded, at p. 464, that "the rules contain no restrictions on the power of the National Council to alter the boundaries of the No 1 Branch." Even Beaumont J., who dissented, did not do so on the basis that the power to amend rules was restricted by any notion of branch autonomy arising from r. 35(a). Rather, his Honour found implications in the rules as a whole to the effect that branches were an essential part of the structure of the union and concluded, at p. 481, that the rule amendments destroyed the identity of the Tasmanian No. 1 Branch as it then stood, undermined the existence of the branch and its capacity to function and were beyond the powers conferred by the rules.
Counsel for Ms. Armstrong attempted to distinguish Imlach v. Daley by arguing that the question of the positioning of the boundaries between two branches was not a matter of the autonomy of branches, because by its nature it involved more than one branch, and that it was therefore unnecessary for the court to deal with what was then r. 35(a). I do not think that the argument can be maintained. As I have said, the argument based on branch autonomy was clearly put to the court. It was not dealt with expressly, either on the basis that the autonomy of a branch could not be in dispute because two branches were involved, or on any other basis. The court appears to have regarded it as an unimportant restriction on the rule-making power of the national council. It is difficult to see why the removal of members and territory from one branch would not have been seen as an interference with the autonomy of that branch and the forcing of those members and that territory onto another branch would not have been seen as an interference with the autonomy of that other branch. The only possible conclusion is that the court regarded the national council as having power to make changes to the framework within which branches were autonomous.
If the court in Imlach v. Daley was unable to hold that the power of the national council to amend the rules of the organisation was restricted by what was then r. 35(a), it is even more difficult to find that the present power is
restricted by r. 44(a). The present r. 70 contains no reference to r. 44(a).
A similar view must be taken on the issue whether the rule-making power of the national council is to be read down by reason of r. 47(d). That rule gives to a branch a power to make rules "for its own internal management" and a power to "add to, amend, rescind or alter any of these rules in so far as they relate to the internal management of a branch." The operation of this rule is not such as to remove from the sphere within which the national council may make rules that area which could be described as the internal management of branches. There can be no doubt that the power of the national council extends to the making of rules which govern the internal management of branches. The rules which form Part C of the rules of the union are, after all, provisions which apply to branches generally. Many of them deal with aspects of the internal management of branches. It is open to the national council to amend, rescind or add to those rules.
Throughout much of the history of the organisation, the rules of the organisation were divided into two parts. There were national rules and standard branch rules. Branches had the power to amend the latter. Even so, the latter were rules which applied to all branches in the absence of the exercise of the power of a branch. Even the express subjection of the national council's rule-making power to the power of the branch to amend the standard branch rules for its own internal management did not deprive the national council of the power to amend the standard branch rules. The position is even clearer with the present form of the rules.
The remaining issue is whether the rule-making power of the national council is qualified to any, and if so what, extent by r. 70. It must be remembered that the power itself is given by r. 21 as one of the powers which the national council has "subject to these Rules". Rule 70 certainly regulates the manner in which the power may be exercised. In its former incarnation, the rule was expressly made subject to the branch autonomy rule and the branch power to make rules for its internal management. The rule also limited the national council's rule-making power to exercise at a meeting of the national council. In that form, the rule precluded the national council from amending rules by means of a postal ballot. On 4 February 1991, alterations to r. 70 were the subject of a certificate of the deputy industrial registrar, pursuant to s. 205 of the Act. Those alterations brought the rule into its present form. Subrule (a) now permits the national council to exercise its rule-making power by postal ballot, pursuant to r. 25. Subrule (b) imposes procedural requirements. Subrule (c) performs at least one function, namely that of imposing procedural requirements on the exercise of the branch power to make rules for its own internal management. It also contains the statement that "Nothing contained in this Rule shall derogate" from that power. There was considerable dispute as to the meaning of this provision. Counsel for Mr. Elliott contended that those words did no more than to indicate that r. 70 itself was not intended to derogate from the power of a branch to make rules for its own internal management, but that those words did not prevent the national council from so derogating. In his contention, the national council could amend r. 70(c) without exceeding its powers. It could also make other rules which derogated from the power given to branches by r. 47(d). Such rules would include r. 52(e)(iv) and (v), in the form adopted by the national council in the postal ballot in December 1996.
I do not think this argument is altogether correct. Rule 70(c) being ambiguous, it is appropriate to have regard to its history. As I have said, the previous form of the rule regulating the rule-making power of the national council was different. It was expressly made subject to the branch autonomy rule and to the rule which gave branches power to make rules for their own internal management. In the 1991 alterations, these express qualifications were removed. In my view, the opening words of the new subr. (c) were designed to show that the national council's power to alter rules was restricted to the extent that it could not take away the power of branches to make rules for their own internal management. Otherwise, those words would have performed no function. It was obvious from the fact that r. 47(d) remained in the rules that the amendments to r. 70 were not removing it. Indeed, the balance of the new subr. (c) made it abundantly clear that that power continued to exist. The opening words must therefore have been intended to curtail the national council's rule-making power in the manner which I have suggested.
I am therefore of the view that the national council did not have power to remove from branches any part of their power to make rules for their own internal management. The remaining issue, therefore, is whether, in adopting the amendments to r. 52(e) which were carried in the postal ballot in December 1996, the national council was acting in contravention of that restriction. Plainly, in adopting paras. (i), (ii) and (iii) it was not doing so. Rule 52(e) already made some provisions for the timing of elections within branches. Those provisions bound all branches. There was no restriction on the national council making changes to them. The only question is whether, by adopting paras. (iv) and (v), the national council could effectively entrench those provisions against the exercise of the power of branches to make rules for their own internal management.
It is therefore necessary to determine whether the timing of elections in a branch is a matter of that branch's own internal management.
The timing of elections held within a branch is clearly a matter relevant to the management of that branch. It cannot be denied that issues such as the qualifications required of candidates for various offices and the length of the term for which an office is held (within the permissible limits laid down by the Act), the time at which a person elected takes up an office and the time which elapses between the declaration that a person is elected and the taking up of office all bear upon the management of a branch. The question is whether they bear exclusively upon the management of a branch. In the case of the election of delegates to national council, this is plainly not so; the national council itself has a clear interest in the timing of the elections of those who constitute it. It is legitimate for the national council to take the view that those who are elected as branch delegates should reflect the views of the electors within their branches at a certain time or times. This is so even though r. 50(j) makes provision for branch delegates to be instructed how to vote on any matter. Such instruction is not compulsory. It would be impossible in many cases, including dealing with amendments to motions proposed at national council meetings. In saying that the national council has such an interest, I am mindful of the fact that national councillors are not all elected at the same time under the present system. Elections for national council delegates in the Victoria No. 1 Branch, who hold office for four year terms, are not due to be held until 1999. Those from the New South Wales branch, which has by far the largest number of members of any branch in the union, are due to be elected in 1997. These arrangements are not immutable; it would be open to the national council to take the view that elections of all
delegates should be subject to a standard timetable and to amend the rules to achieve this end.
It is also easy to see that the timing of elections for branch officers and branch committee members could be seen as a matter of legitimate interest on a basis wider than an individual branch. The national council might take the view, quite properly, that all elections for branch officers and branch committee members should be conducted at once and at the same time as elections for national officers, national executive members and national council delegates, in order to relieve members from being subjected to elections too frequently. In saying this, I recognise that there may be a range of views on these subjects. I understand that Ms. Armstrong puts the view that it is better to conduct the branch elections at a time far removed from the elections for national officers, in order to avoid confusion among the members. My purpose is not to indicate a preference for one of these views over the other or others. It is simply to illustrate that the national council may adopt one view, in the proper exercise of its powers, and reach the conclusion that that view ought to prevail throughout the organisation. My purpose is simply to illustrate that the question of the timing of branch elections cannot be said to be inherently and exclusively a matter of the internal management of branches.
It may be that the concept of the internal management of branches has no boundaries which are clearly defined and unchanging. The mere fact that the national council decides to act in respect of some subject may be sufficient to remove that subject from the area of internal management of branches to the field over which the national council is able to exercise power. I do not mean to say that the national council can put r. 47(d) and r. 70(c) to one side and resolve to amend the rules so as to deprive the branches effectively of their powers to amend the rules. As is the case with any power of the national council, the power to amend rules must be exercised bona fide and for the purposes for which it is given. Its purported exercise as a cloak for an attack on a particular branch, stemming from an ulterior motive, would not be a proper exercise. An amendment to the rules which applied only to one branch, or to some specified branches, would need careful scrutiny. On the other hand, an amendment to the rules which applies to all branches would itself be a good indication that its subject matter is not limited to the internal management of branches, at least at the point in history at which the amendment is adopted.
For these reasons, I am of the view that it was open to the national council in December 1996 to go further than the adoption of the proposed paragraphs (i), (ii) and (iii) of the amendments which were made in r. 52(e), by making it clear that branches were not able to exercise the power in r. 47(d) to depart from the standard timetable. It is significant that the national council adopted the amendments to r. 29, which were the subject of the yellow ballot paper, at the same time as it adopted the amendments to r. 52(e), which were the subject of the blue ballot paper. The results of both postal ballots make clear the view of the national council that there should be a standard timetable for all elections within the organisation. Paras. (iv) and (v) in the amendments adopted to r. 52(e) are directed to this end. It may be that they would be unnecessary, it being clear from the other amendments that the standard timetable for elections is not, or has ceased to be, a matter of the internal management of branches. Nevertheless, it was open to the national council to insert them, whether from an abundance of caution or otherwise. An excess of clarity is not a ground on which the validity of an exercise of the rule-making power can be attacked.
To the extent to which the new paras. (iv) and (v) are expressed to override rule alterations already made and to oust the rule-making power of branches, I do not see that they are outside the powers of the national council. Any presumption against retrospectivity is merely a presumption, and can be overcome by clear words. At the date when the rule alterations were adopted by national council, no person had acquired any interest pursuant to the alterations adopted by the special general meeting of the Victoria No. 1 Branch, so as to make it unfair to override those alterations. The branch alterations were not yet part of the rules of the union, because they had not been certified pursuant to s. 205 of the Act. Even if it should be held that Mr. Elliott had acted improperly in refusing to submit them for certification, the fact remains that the rules had not been altered; the Act contains no room for the application of any doctrine that that which ought to have been done is deemed to have been done. Finally, no objection can be taken to the express exclusion of the power of branches to make rules on the subject. It cannot be contended that the national council possesses power to entrench rules against the exercise of its own powers of alteration, but no power to entrench rules against the branches' powers of alteration.
Question 1 should therefore be answered in the affirmative.
Question 2
The answer to question 2 depends upon the construction of r. 70, particularly subr. (b), and r. 25.
It should be noted that r. 70(a) provides for alternative methods of exercising the rule-making power. The power may be exercised "at a meeting of the National Council or by postal ballot of the members of the National Council conducted pursuant to Rule 25". The separate treatment of these alternatives continues in subr. (b). The requisite notice must be given "at least one month prior to the relevant meeting of the National Council or to the commencement of the postal ballot (as the case may be)". Significantly, the proviso, which is the only reference to the possibility of amendment, refers only to one of those alternatives, namely "when considered by the relevant meeting." Before the national council could be considered to have the power to amend a proposal which was put to a postal ballot, it would be necessary to treat the words "the relevant meeting" in the proviso as including a reference to a postal ballot. This would be a considerable departure from the drafting style of the earlier provisions of the rule. I cannot believe that such a departure was intended and that the rule is intended to provide for the amendment of a proposal put to a postal vote.
A reference to r. 25 tends to confirm this view. The first step required by r. 25, before a proposal to amend the rules may be put to a postal ballot of the national council, is that either the national executive, or the national secretary in conjunction with the national president, must determine that the matter requires a decision of the national council between biennial meetings of the national council. That decision having been made, the second step, required by subr. (b)(i), is that the national executive determine the form in which the matter is to be submitted to the national council for decision by ballot. In my view, each of these steps is mandatory. Compare Roots v. Mutton (1978) 32 FLR 15. Nothing could be submitted to a vote of the national council without the form in which it was submitted being determined by the national executive. Subrule (b)(ii) then requires that the members of the national council record their vote "on the matter so submitted". In other words, it is the matter in the form determined by the national executive upon which the members of the national council must vote. The process leaves no room for any member of the national council to move any amendment. The rules provide no obligation for the national executive to consider any amendment or to put it in a form in which it could be submitted for a postal ballot. Nor do the rules provide for the satisfaction of the requirement that either the national executive, or the national secretary and the national president, must determine that the matter requires a decision of the national council between biennial meetings, in relation to any such amendment. It is plain that the only matter which goes to a postal ballot of the national council is a matter which has undergone both of the required procedures.
Good sense also dictates that rr. 70 and 25 be read in this way. The present case illustrates in a small way the practical difficulty of dealing with an amendment. It would be necessary to conduct two ballots, as proposed by Ms. Armstrong, one in relation to the amendment and the other in relation to the original motion, amended or unamended as the case may be. Alternatively, three ballot papers for the proposal would be necessary, one relating to the amendment, a second to the motion notionally amended and a third to the unamended motion. Voters would have to be requested to cast votes both for the amended motion and the unamended motion, without knowing the outcome of the vote on the amendment. The first method would be time-consuming. Both would be complex. It is easy to see how both the time and the complexity would increase with the addition of further amendments. The rules should not be construed as creating these difficulties unless they do so in clear terms.
Counsel for Ms. Armstrong suggested that, unless they were construed as permitting amendment, the rules might contravene s. 196 of the Act, by imposing on members conditions, obligations or restrictions that are oppressive, unreasonable or unjust, or by failing to make a provision required by the Act, namely the provision for the control of committees of the organisation by its members, required by s. 195(1)(b)(iv). This is plainly not so. Postal ballot is one of two methods by which the national council may amend the rules. Ordinarily, the power would be exercised at a meeting of the national council, at which amendments could be moved and debated and adopted if the national council thought fit. It is only if the determination is made that a matter requires a decision of the national council between biennial meetings that a postal ballot can be held. In making this determination and in determining the form in which a matter is to be put to a postal ballot, there are many relevant considerations. Not the least of them is that, if a proposed amendment is to be approved by a majority of voting members of the national council, it must be sufficiently palatable to them, both as to its degree of urgency and as to its form. The absence of proper debate and of the possibility of amendment must weigh upon the minds of the members of the national executive, and of the national secretary and the national president, if they are the ones who make the first determination. If there is any miscalculation of these matters, the proposal which is put to a postal ballot will simply be lost. It can only then be revived at a meeting of the national council, at which debate and amendment will be possible. In addition, there is the safeguard provided by r. 25(d), whereby a majority of members of the national council may require that a special meeting of the national council be held, if they regard debate and amendment as of sufficient importance. The procedure of postal ballot has its own inbuilt safeguards.
In support of his argument that amendment is possible, counsel for Ms. Armstrong attempted to extend to the provisions of the rules of the union the reasoning of the Full Court of the Federal Court of Australia in Australian Transport Officers' Federation v. State Public Services Federation (1981) 50 FLR 438, at pp. 442-3. In that case, a registered organisation had a rule providing for the taking of a postal ballot of its federal council. The rule provided that "any decision so made shall be as valid and effectual for all purposes as if that decision had been made by ...... federal council ...... in meeting assembled". That provision is similar to the one to be found in r. 25(b)(ii) in the present case. The registered organisation also had a rule which required notice of any proposal to amend rules to be given to its federal secretary at least sixty days prior to the ordinary two yearly meeting of federal council or a special meeting of federal council. The court held invalid a rule amendment that had not been the subject of such notice prior to the postal ballot at which it was adopted. The court took the view that the notice provision was a mandatory rule and construed it as requiring notice of the length specified prior to the consideration by the federal council of any rule amendment, whether that rule amendment was by postal ballot or at a meeting. In doing so, their Honours relied upon the provision that the result of a postal ballot was to be as valid and effectual as if it had been made in a meeting.
That case cannot be taken as authority for the proposition that, wherever rules contain a provision that the result of a postal ballot is to be treated in the same way as a decision taken at a meeting, all of the requirements for a proposal to be considered by a meeting must apply to the process of postal ballot. Decisions given in relation to the rules of one registered organisation cannot be treated as if they lay down binding principles governing all other registered organisations. The question in each case is one of the proper construction of the rules of the registered organisation concerned. In the present case, the rules of the union contain detailed provisions about the conduct of postal ballots. To apply to them the decision of the Australian Transport Officers' Federation case as a governing principle would be to override them. To apply it to require that
opportunities be provided for an amendment in a postal ballot would be to widen it and, in my view, to misapply it.
For the reasons I have given, the proper answer to question 2 is in the negative.
Questions 3 and 4
Having answered no to question 2, I am not required to answer either question 3 or question 4 as they are phrased. Nevertheless, in deference to the arguments which were put, and in case my view of the correct answer to question 2 should be overturned on appeal, I propose to set out my views on the matters dealt with by those questions.
I am of the view that the purported amendment moved by Ms. Armstrong and Mr. Ellison, if it had been moved at a meeting, should have been rejected by the chairperson of that meeting. This is because it amounted to a "direct negative" of the motion. See Horsley's, Meetings Procedure, Law and Practice, 3rd Ed., at p. 45, Shackleton on the Law and Practice of Meetings, 8th Ed., at p. 54 and Joske's Law and Procedure of Meetings in Australia, 7th Ed., at p. 46. The motion in the form specified by the national executive was for the alteration of the rules. The so-called amendment, if adopted, would have resulted in no alteration of the rules. The same result would have been achieved by a majority vote against the motion.
The purported amendment was in three parts. The first part involved the deletion of the proposal to amend the rules and the substitution of another procedure for dealing with the proposals in paras. (i), (ii) and (iii). That procedure could not, of itself, have resulted in alteration to the rules, even if it did result in some branches, or all branches, exercising their independent powers pursuant to r. 47(d) and making rules for their own internal management. The second part of the purported amendment would have deleted paras. (iv) and (v). The third part was meaningless. It sought to delete two passages from what was described as "the penultimate line of the motion". One of the passages did not appear in the motion at all. The other appeared in the ultimate line, at least as the motion was printed on the blue ballot paper. Even allowing for the fact that the penultimate line may have been an accurate description of part of the motion as it was printed in the notice sent to national council members and branch secretaries in accordance with r. 70(b), the adoption of the third part of the purported amendment would have led to the nonsensical proposition "that sub-rules 52(e)(iii) to (xiii) be renumbered respectively".
No person chairing a meeting and acting properly would have accepted such an amendment. If Ms. Armstrong and Mr. Ellison desired to pursue what they apparently sought to achieve by it, the proper course would have been to seek to persuade members of the national council to vote against the motion and
then to put their procedural proposal as a separate motion to the next meeting of the national council.
As to the fourth question, counsel for Ms. Armstrong attempted to submit that the purported amendment had been carried. This was on the basis that the only expressions of views about it were favourable. The argument could not be described as being founded in reality. Members of the national council were invited to vote on a proposal. They voted overwhelmingly in favour of it. They were expressly not invited to vote on what was described as "an alternative proposal" by Ms. Armstrong and Mr. Ellison. Instead, they were told that they were free to indicate in writing their position regarding that proposal if they wished to do so. The notion that those who voted in favour of the motion were also permitting its amendment by abstaining from voting against the proposal of Ms. Armstrong and Mr. Ellison is absurd. The rules of meeting procedure are designed to ascertain the will of a meeting, and not to frustrate it. To hold that the purported amendment had been carried on the basis that a handful of voters (who also voted against the unamended motion which was put to the vote) were the only ones expressing a view on it would amount to the clearest frustration of the will of those voting.
If required to do so, I should answer questions 3 and 4 in the negative.
Question 5
Consistently with what I have said in relation to question 1, I must also answer question 5 in the negative. The use of the present tense in the question probably fails to reflect what the parties really wish to know, namely whether on 18 November 1996, when the special general meeting of the Victoria No. 1 Branch adopted its proposed rule alterations, it was open to that meeting so to act. On the view that I take, however, the difference may not be crucial. If I am correct in my view of the answer to question 1, the certification of the rule alterations the subject of the national council postal ballot would result in the particular rules of the Victoria No. 1 Branch on this subject being overridden, even if they had been certified earlier.
By decision of the national council, the matter of a standard timetable for the conduct of elections throughout the union has become a matter of concern to the national council and therefore a matter beyond the internal management of a branch.
Question 6
Because of the answers which I propose to give to various questions, including question 5, it is unnecessary for me to answer question 6. It is not clear how question 6 differs from question 5. Perhaps question 6 was intended to raise the issue of the scope of r. 47(d), on the assumption that the rule alterations which were carried by the national council in its postal vote in December had been certified pursuant to s. 205 of the Act and had therefore become part of the rules of the union. If that be the case, then it is impossible for me to answer this question. The question whether the amendments to r. 52(e) are part of the rules of the union depends, at least in part, on the validity of the purported revocation of the certificate of the deputy industrial registrar. That is a question which was not argued before me and is, as I was informed by counsel, raised by way of appeal from the deputy industrial registrar to the Australian Industrial Relations Commission.
The Orders
I therefore answer question 1 of the agreed preliminary questions yes, question 2 no and question 5 no. I find it unnecessary to answer questions 3, 4 and 6. The order I make will be to answer those questions accordingly and to invite the parties to file minutes of orders disposing of so much of each rule to show cause as is possible upon the answers to the questions. I also propose to adjourn the matter to a suitable date for the giving of any further directions in case either proceeding has not been dealt with fully.
No. VI2789 of 1996
Counsel for the applicant: Mr. S. Rothman S.C.
Solicitors for the applicant: Holding Redlich.
Counsel for the respondents
R. Elliott, N. Barrett,
P. Clapham, T. Conoulty,
H. Dalton, K. Darveniza,
B. Gunning, J. Jackson,
J. Kanara-Hobson, I. Knight,
W. Massey, W. Miles,
C. Thomson, L. Walsh,
L. Williams and M. Williamson: Mr. R.W. Hinkley.
Solicitors for the respondents
R. Elliott, N. Barrett,
P. Clapham, T. Conoulty,
H. Dalton, K. Darveniza,
B. Gunning, J. Jackson,
J. Kanara-Hobson, I. Knight,
W. Massey, W. Miles,
C. Thomson, L. Walsh,
L. Williams and M. Williamson: Slater and Gordon.
No. VI2790 of 1996
Counsel for the applicant: Mr. R.W. Hinkley.
Solicitors for the applicant: Slater and Gordon.
Counsel for the first to thirteenth
and fifteenth respondents: Mr. S. Rothman S.C.
Solicitors for the first to
thirteenth and fifteenth respondents: Holding Redlich.
Dates of Hearing: 24 and 25 February 1997
Date of Judgment: 14 March 1997
I certify that this and the preceding forty-eight (48) pages are a true copy of the reasons for judgment of his Honour Justice Gray
Associate:
Date:
11
0
0