Australian Postal & Telecommunications Union v Question of Law

Re AUSTRALIAN POSTAL AND TELECOMMUNICATIONS UNION (1977) 30 FLR 190
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Bowen C.J.(1), Smithers(1) and Keely(1) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Rules - Construction - Alteration of rules - Object of alteration - Reconstitution of branch committees of management - Number of offices of assistant secretary increased - Electorate for office altered - Whether same office - Duties of office - Term of office - Abolition of former office - Creation of new office - Conciliation and Arbitration Act 1904-1976, ss. 112, 170.

HEADNOTE

The Conciliation and Arbitration Act 1904-1976 provides by s. 170 for the official conduct of an election for an office of an organization or branch upon a request in writing by the committee of management of the organization or branch or by a prescribed number of members of the organization or branch. Subsection (4) provides that upon such a request, the industrial registrar shall, after making such inquiries (if any) as he considers necessary, decide whether or not the request has been duly made.

Section 112 of the Act provides that the registrar may refer a question of law arising in a matter before him for the opinion of the court.

The rules of an organization were altered in June 1975 so as to provide, by sub-r. 31 (b), for the reconstitution of the branch committees of management so that the committees, in States other than New South Wales, were to consist of, amongst others, two assistant secretaries and, in New South Wales, four assistant secretaries, each of whom was to be elected by and from one or other of the two groups, postal or telecommunications, into which the membership of each branch was divided, for a term of office, upon original election, of two years and, upon re-election, of four years. Before the alteration, the rules had provided for a single office of assistant secretary in each branch with a term of office, upon original election, of two years and, upon re-election, of four years. "Re-election" was defined by sub-r. 4 (m) as meaning the election to an office or position of a person who, at the time of nominations for the election, was the holder of that office or position. Rule 61, defining the duties of the branch assistant secretary, remained unchanged.

At the biennial branch elections conducted in September 1975 a number of persons elected to an office of branch assistant secretary had in the preceding biennial branch elections been elected to the then single office of branch assistant secretary. Before the conduct of the 1977 biennial branch elections, a request under s. 170 was made for the official conduct of the election for a number of branch offices, including one office of assistant secretary in each branch.

A reference under s. 112 was made by the industrial registrar to the court of a question of law, viz., was a person who had been elected to a full-time office of assistant secretary of a branch and who occupied that office until the 1975 branch biennial election, and who was re-elected by and from a group to a fulltime office of assistant secretary of that branch at the 1975 biennial election, entitled to a two or four-year term of office commencing in 1975?

Held: (1) As the creation, by the alteration of the rules in 1975, of multiple offices of branch assistant secretary, to be elected by and from an electorate different from that applying in relation to the former single office of branch assistant secretary resulted in a material alteration of the duties and significance of the former office, the multiple offices should be regarded as offices different from the former single one.

(2) As the object of the alteration of the rules, the election of an assistant secretary as a representative of one or other of the two groups into which the branch membership was divided, would be defeated if the new office were characterized as the same as the former office of branch assistant secretary elected by the branch membership as a whole, the alteration was to be interpreted as impliedly abolishing the former office.

Accordingly, as a person elected to one of the offices of branch assistant secretary at the 1975 biennial branch was not re-elected to that office, the term of office to which he was entitled was two years only.

HEARING

Melbourne, 1977, June 28; July 1. #DATE 1:7:1977

REFERENCE OF QUESTION OF LAW.

Following a request under s. 170 of the Conciliation and Arbitration Act 1904-1976 for the official conduct of an election for a number of offices, including that of assistant secretary of a number of branches of the Australian Postal and Telecommunications Union, an organization registered under the Act, the industrial registrar referred a question of law under s. 112 of the Act to the court.

J. E. R. Bland, for the organization.

F. R. Walsh appeared in person for J. Hughes, P. J. Evans and the committee of management of the South Australian branch of the organization.

Cur. adv. vult.

Solicitors for the organization: J. N. Zigouras & Co.

(Reported by Miss M. R. Hickey, Barrister-at-Law.)

JUDGE1

July 1.

THE COURT delivered the following judgment.

This is a reference by the industrial registrar of the following question of law pursuant to s. 112 of the Conciliation and Arbitration Act 1904-1976: "Was a person who had been elected to a full-time office of assistant secretary of a branch and who occupied that office until the 1975 branch biennial election, and who was re-elected by and from a group to a full-time office of assistant secretary of that branch at the 1975 biennial election, entitled to a two or four-year term of office commencing in 1975?" (at p191)

The registrar has received requests from the South Australian, Victorian, Western Australian and New South Wales branches of the Australian Postal and Telecommunications Union that an election for offices, including the office of assistant secretary (one position) in each branch be conducted under s. 170 of the Act. He has not yet decided whether or not the requests have been duly made. (at p191)
Prior to 12th June, 1975, the relevant rules of the organization relating to the office of assistant secretary in branches were those set out below: (at p192)
"31 (b) Each branch shall have for its management a State executive consisting of a president, two (2) vice-presidents, secretary-treasurer, assistant secretary, organizer (where declared a full-time position), and twelve (12) or nine (9) group representatives, as provided for in r. 32, who shall be elected for a period of two (2) years. Provided that any person elected to an office which has been declared a full-time office (other than the secretary-treasurer, who shall be elected for a period of two (2) years when elected on the first occasion, and for a period of six (6) years on re-election), or which has been declared a full-time position of organizer shall be elected for a term of office of two (2) years and for a term of office of four (4) years on re-election. Provided further that any person elected by branch ballot of the membership in 1972 to an office in the Queensland branch shall be elected for a period of three (3) years and on re-election shall be elected for a period of four (4) years in the case of an office which has been declared a full-time office or which has been declared a full-time position of organizer or for a period of six (6) years in the case of the office of secretary-treasurer. (at p192)
(c) The president, secretary-treasurer, vice-presidents, assistant secretary and organizer (where declared a full-time position) shall be elected by ballot of the whole of the financial members of the branch. (at p192)
"4 (m) Re-election means the election to an office or position of a person who, at the time of nominations for the election, was the holder of that office or position." (at p192)
It will be seen that according to these rules the situation was that prior to the 1975 election only one full-time office of assistant secretary existed in each branch. That office in the South Australian, Victorian, Western Australian and New South Wales branches was occupied by Messrs. F. R. Walsh, D. R. Bowler, J. Hughes and P. J. Evans respectively; each of them having been elected to that office. (at p192)
On 12th June, 1975, an alteration to the rules was certified by the registrar under s. 139 (4) of the Act. The relevant rules as altered and certified were as follows: (at p192)
"31 (b) Each branch shall have for its management a State executive consisting of a president, two (2) vice-presidents, secretary-treasurer, two (2) assistant secretaries (four (4) assistant secretaries in the New South Wales branch) and not fewer than eight (8) nor more than eighteen (18) group representatives and who shall be elected for a period of two (2) years. Provided that any person elected to an office which has been declared a fulltime office (other than the secretary-treasurer, who shall be elected for a period of two (2) years when elected on the first occasion, and for a period of six (6) years on re-election) shall be elected for a term of office of two (2) years and for a term of office of four (4) years on re-election. For the purposes of branch administration, the following branch offices shall be declared full-time positions: New South Wales - president, two (2) vice-presidents, secretary-treasurer, four (4) assistant secretaries; Victoria - president, two (2) vice-presidents, secretary-treasurer, two (2) assistant secretaries; Queensland - president, secretary/treasurer, two (2) assistant secretaries; South Australia and Western Australia - secretary-treasurer, two (2) assistant secretaries; Tasmania - secretary-treasurer. (at p193)
"(c) The manner of election shall be as follows: president - the president shall be elected by ballot of the financial members of the branch; secretary-treasurer - the secretary-treasurer shall be elected by ballot of the financial members of the branch; vice-presidents two (2) - one vice-president shall be a member of the telecommunications group and shall be elected by ballot of financial members of the telecommunications group, and one vice-president shall be a member of the postal group and shall be elected by ballot of financial members of the postal group; assistant secretaries - in New South Wales - assistant secretaries, four (4) - two (2) assistant secretaries shall be members of the telecommunications group and shall be elected by ballot of financial members of the telecommunications group, and two (2) assistant secretaries shall be members of the postal group and shall be elected by ballot of financial members of the postal group; in other States - assistant secretaries, two (2) - one assistant secretary shall be a member of the telecommunications group and shall be elected by ballot of financial members of the telecommunications group, and one assistant secretary shall be a member of the postal group and shall be elected by ballot of financial members of the postal group." (at p193)
It will be seen that by virtue of this alteration of the rules: (a) the number of full-time assistant secretaries was increased to two in the South Australian, Victorian and Western Australian branches and to four in the New South Wales branch; (b) that in the South Australian, Victorian and Western Australian branches one, and in the New South Wales branch two, of the assistant secretaries to be elected were to be members of the telecommunications group and the other assistant secretary or secretaries to be elected in the branches were to be members of the postal group; (c) that the electorate in each branch by which the assistant secretary or assistant secretaries, as the case might be, who were members of the telecommunications group should be those branch members only who belonged to the telecommunications group, and the electorate in each branch by which the other assistant secretary or secretaries, as the case might be, should be those branch members only who were members of the postal group. It is to be noted also that although the introduction of multiple assistant secretaries in each branch would mean that the duties formerly performed by a single assistant secretary were to be performed by more than one assistant secretary, r. 61 defining the duties of "the branch assistant secretary" was not amended. It continued to say, simply: "DUTIES OF BRANCH ASSISTANT SECRETARY. The duties of the branch assistant secretary shall be to attend all meetings of the branch and to take the rough minutes of the proceedings, except where otherwise directed by the branch secretary. At all other times he shall render such assistance to the secretary as may be required of him." (at p194)
At the 1975 elections for branch officers, which were conducted subsequent to 12th June, Messrs. F.R. Walsh, D.R. Bowler and J. Hughes were each elected as full-time assistant secretaries in their respective branches by members of the postal group. Each was at that time himself a member of that group. Mr. P. J. Evans was elected as an assistant secretary of his branch by members of the telecommunications group. He was at that time a member of that group. (at p194)
The question is whether by reason of the election of these persons as assistant secretaries at the 1975 elections those persons were, within the meaning of r. 31 (b), "re-elected" to the offices or positions which they acquired in those elections. If they were then the term for which each of them was elected was four years. The term "re-election" is defined in r. 4 (m) to mean the election to an office or position of a person who at the time of nominations for the election was the holder of that office or position. (at p194)
Accordingly the critical inquiry is whether, for the purposes of the rules, the office of an assistant secretary under the 1975 rules was "that office" of assistant secretary which the persons in question had held at the time of nomination for the 1975 election. (at p194)
Both offices have the same name and the specified duties are nominally the same. But from the point of view of substance the introduction into each branch of multiple assistant secretaries, one-half of whom are members of the postal group and elected by the members of that group and the other half of whom are members of the telecommunications group and elected by the members of that group has created a situation as a result of which the duties performed by one of the multiple assistant secretaries are seen to differ from those of a single assistant secretary under the pre-1975 rules. The single assistant secretary was required to perform all the assistant secretary's duties specified by the rules in relation to all the branch members irrespective of group. The inevitable result of multiple assistant secretaries is that those duties are to be divided or shared. Such division or sharing is the ostensible object of the reorganization effected by the new rule. No doubt it was considered that it would contribute to efficiency in administration and the servicing of members in the different groups. No doubt in practice the division of functions would reflect the group membership of each particular assistant secretary and the requirements of their respective electorates. It would inevitably follow from the reorganization that the assistant secretary elected by the postal group, while having an overall duty to attend to the affairs of the branch and its members generally, would give special attention to the affairs of members of his group. It is to be inferred that this was the intention of the reorganization effected by the new rule. (at p195)
It is a consequence that the range of activity and the significance to individual members of the office of what may be called a (group) assistant secretary differ materially from those of a single branch assistant secretary. (at p195)
Accordingly, there are considerations of substance by reason of which the office of what we have called branch (group) assistant secretary may be regarded as an office different from that of branch assistant secretary. (at p195)
That is should be so regarded, for the purposes of the branch rule in question, is supported by other considerations arising from the nature of the reorganization effected by the rule alteration of 12th June, 1975. (at p195)
It is manifest that the rule as altered in June 1975 provided that at the next elections to be held in, say, the Victorian branch, there would be an election for two (group) assistant secretaries and that as a result of that election the branch would thenceforth have two, and only two, assistant secretaries. (at p195)
But according to the terms of r. 31 as it existed prior to the 1975 alteration and as far back as 1973, a situation existed at the time of the 1975 elections that an assistant secretary "re-elected" in 1973 would have a four-year term as branch assistant secretary. If the office of (group) assistant secretary provided for in the rules as altered in 1975 was the same office as branch assistant secretary previously existing then the scheme envisaged in the 1975 alteration could not be implemented. (at p195)
Either the assistant secretary having the four-year term would continue in office and only one (group) assistant secretary would be elected, or the two (group) assistant secretaries contemplated in the rules would be elected and the assistant secretary having the four-year term would continue in office. In the first case, contrary to the clear intention of the rule, only one of the groups would have an assistant secretary elected exclusively by it. In the second, also contrary to the clear intention of the rule, the branch would have three assistant secretaries. (at p195)
Both alternatives being incompatible with the clear intention of the rule as altered in 1975 each must be rejected. To achieve this the altered rule must be interpreted as expressing the intention that an acquired right to a four-year term created in 1973 was extinguished. This would follow if the new rule is interpreted either as extinguishing the office of branch assistant secretary as previously existing or bringing to an end the occupancy of that office by the person then holding it. In our view the new rule ought to be interpreted as extinguishing the office of branch assistant secretary theretofore existing as from the completion of the 1975 elections. The rule as amended in 1975 specifies in positive terms the officers that "each branch shall have for its management". (at p196)
Those specified include multiple assistant secretaries to be elected on a group basis but do not include an assistant secretary elected on a branch membership basis. Clearly the intention of the rule is that as from the 1975 elections, the branch would not have "for its management" an assistant secretary elected by the whole of the branch membership and that that office would cease to exist. (at p196)
It is clear from the terms of the final paragraph of r. 31 as altered in 1975 that it was a consequence of the omission, pursuant to such alteration, of the officer designated as "organizer (where declared a full-time position)" from the officers specified in r. 31 as the officers whom the branch "shall have for its management", that the term of office of the organizer would come to an end as from the completion of the elections in 1975 notwithstanding that pursuant to the rule as it stood before the 1975 alteration he had been "re-elected" and was entitled to hold office until 1977. (at p196)
The office of full-time organizer was one of the specified offices in the rule as it stood before alteration in 1975. It was omitted from the specified offices by the 1975 alteration. The final paragraph of r. 31 as so altered recognizes that in the absence of special action by the branch the organizer was by reason of the alteration of r. 31 (b) no longer the occupant of the position of organizer. (at p196)

The final paragraph is in the following terms: "Present occupants of the office of organizer whose terms of office expire in 1977 shall continue, if the State branch concerned so decides, to hold office until the declaration of the poll in the branch elections to be held in 1977, unless prior to that time the present occupant resigns, retires, dies, or is elected to another full-time office in the union, or otherwise becomes ineligible to hold office." In the light of the foregoing observations we are satisfied that the office of branch assistant secretary existing under the rules as they stood prior to 12th June, 1975, ceased to exist as from the election of 1975. (at p196)
It may also be observed that a similar conclusion would be reached if the effect of the amendment of the rule certified on 30th May, 1977, were in question. (at p196)
The answer to the question referred to the court by the industrial registrar is that each person referred to in the question was entitled only to a two-year term of office commencing in 1975. (at p197)

ORDER

Answer accordingly.

[1977] FCA 45

01 JULY 1977