Battese, in the matter of an Election for an Office in the CWU of Australia Postal and Telecommunications Branch, New South Wales
[1996] IRCA 441
•25 September 1996
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA NEW SOUTH WALES )
)
DISTRICT REGISTRY GENERAL DIVISION )
No. NI 1999 of 1996
and
No. NI 2016 of 1996IN THE MATTER OF AN INQUIRY
INTO AN ELECTION IN THE
COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA,
COMMUNICATIONS DIVISION, NEW
SOUTH WALES POSTAL AND
TELECOMMUNICATIONS BRANCH
JUDGE: Moore J
PLACE: Sydney
DATE: 25 September 1996
CORRIGENDUM
The following amendments are made to his Honour's judgment of 19 September 1996:
In the list of appearances delete:
Counsel for Messrs Metcher
and Jarman: Mr Hodgkinson
Solicitor for Messrs Metcher
and Jarman: McClellands
and in its place insert:
Counsel for Jim Metcher,
Laurie Chalker, Robert Cornish,
Chris Airs, Lyle Brittain, Ron Caughlan,
John Cosgrove, Steven Dodd, Doug Irwin,
Hong Ha Le, David McCartney, Greg Rayner,
Bill Richards and Ron Heiler Mr Hodgkinson
Solicitor for Jim Metcher,
Laurie Chalker, Robert Cornish,
Chris Airs, Lyle Brittain, Ron Caughlan,
John Cosgrove, Steven Dodd, Doug Irwin,
Hong Ha Le, David McCartney, Greg Rayner,
Bill Richards and Ron Heiler McClellands
Associate: ........ ........ ........ .....
Date: 25 September 1996
DECISION NO: 441/96
CATCHWORDS
ELECTION INQUIRY - whether irregularities arose from rejection of nominations - whether requirement in the rules that candidate has been a continuously financial member is oppressive, unreasonable or unjust.
Industrial Relations Act, 1988 ss 196(a), 223(1)
Re Royal Australian Nursing Federation (SA Branch) (1983) 6 IR 195
Lovell O'Grady & James v Federated Liquor and Allied Industry Employees Union of Australia (1979) 22 ALR 704
Re Carter; Re Federated Clerks Union of Australia Victorian Branch (No. 1) (1989) 32 IR 1
Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179
Bastien v Langton (No. 2) (1986) 18 IR 417
Hogg v Smyth (1983) 32 LRIr 191
Re Keely; Ex parte Kingham (1995) 129 ALR 255
Leveridge v Shop Distributive and Allied Employees Association (1976) 31 FLR 385
Municipal Officers' Association v Lancaster (1981) 54 FLR 129
Doyle v Australian Workers' Union (1986) 12 FCR 197
No. NI 1999 of 1996
No. NI 2016 of 1996
IN THE MATTER OF AN INQUIRY INTO AN ELECTION IN THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, COMMUNICATIONS DIVISION, NEW SOUTH WALES POSTAL AND TELECOMMUNICATIONS BRANCH
Moore J
Sydney
19 September 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) NI 1999 of 1996
) and
NEW SOUTH WALES DISTRICT REGISTRY ) NI 2016 of 1996
NOEL BATTESE
First Applicant
QUENTIN COOK
Second Applicant
IN THE MATTER OF AN ELECTION
FOR AN OFFICE IN THE COMMUNICATION
WORKERS' UNION OF AUSTRALIA POSTAL
AND TELECOMMUNICATIONS BRANCH,
NEW SOUTH WALES
JUDGE: Moore J
PLACE: Sydney
DATE: 19 September 1996
REASONS FOR JUDGMENT
On 2 September 1996 application was made for an inquiry into an election for an office in the New South Wales Postal and Telecommunications Branch ("the Branch") in the Communications Division ("the Division") of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the Union"). The applicant was Mr Noel Battese. A similar application was filed on 4 September 1996. The applicant was Mr Quentin Cook.
On 21 June 1996 I made orders declaring void elections in the Branch which had concluded in August 1994. Several of the orders made were:
A new election shall be conducted in accordance with the rules of the Communications Division of the CEPU as currently certified ("the union rules"), except to the extent that, for the purposes of this new elections (sic), Orders 8 - 34 will apply.
The Australian Electoral Commission ("AEC") shall conduct the new election referred to in Order 7 in respect to the elections for the offices referred to in Order 1 above in the New South Wales Postal & Telecommunications Branch of the Communications Division of the CEPU ("the Branch").
(a) Nominations shall open on 22 July 1996
(b)Nominations shall close at 12 noon on 19 August 1996
(c)The ballot shall open on 16 September 1996
(d)The ballot shall close at 12 noon on 14 October
1996"
Two of the offices for which the new elections were to be conducted were President of the Branch and Organiser in the Branch. It can be seen from the orders that nominations in the elections were to open on 22 July 1996 and close at 12 noon 19 August 1996. Battese was nominated in the election for the Organisers and Cook was nominated in the election for the President. Both nominations were rejected by the returning officer, an officer of the Australian Electoral Commission on the same basis, namely that Battese and Cook had not been a continuously financial member of the Branch for a period of not less than 12 months immediately prior to the closing date of nominations.
On 6 September 1996 I heard submissions from counsel for Battese and counsel for Cook as well as other interested persons who sought and were granted leave to appear in the inquiry or inquiries. For present purposes it does not matter whether, in law, there are one or two inquiries on foot. After hearing the submissions I was satisfied that no irregularity had happened in the elections arising from the rejection of the nominations of Battese and Cook. I expressed that conclusion on 6 September 1986 and indicated I would publish my reasons for so deciding as soon as practicable. I followed this course because it was important, in my opinion, to ensure, if possible, that the timetable arising from the orders made on 21 June 1996 was not disturbed. There was a real risk it would be if I had reserved judgment in order to prepare detailed written reasons. The following are my reasons for reaching the conclusion that no irregularity had happened.
The facts were neither contentious nor complex. The facts relied upon by Battese are found in his statutory declaration accompanying the application for an inquiry. It relevantly provided:
I am advised by my solicitor Mr Anthony Porthouse that the draw for the ballot in the new election is to be conducted by the Australian Electoral Commission today (being Monday 2 September 1996) at approximately 3.00 pm. I am further advised that the draw shall be forwarded to printers for the purpose of printing the ballot papers on Tuesday 3 September 1996. The ballot papers are expected to be printed and received by the Australian Electoral Commission on or before Friday 6 September 1996.
Upon the declaration of the ballot on 11 August 1994 I ceased to be an elected official of the Union. On that day I attended at the office of the Union to collect my final pay. I was accompanied by Jim Hilton and Michael Holden. We normally collected our wages from Josie the bookkeeper, however she advised us that we had to collect our pay from Allan Jarman. The three of us then attended at the office of Allan Jarman. Jalal Natour was also in the office. Allan Jarman handed me a cheque and a pay packet envelope. The cheque was payment for holiday pay and long service leave. The pay packet was my usual weekly pay of approximately $600 in cash. When I received the pay packet and the envelope I said to Allan Jarman words to the effect:-
"I want to pay $100.00 for my Union dues."
I then tore the top off the pay packet and took the money out [sic] the packet. At that time Jalal Natour said to me words to the effect:-
"You don't have to worry about paying your union dues. You'll be getting a letter in the next few days."
I then turned and left the office, taking out my wallet and putting the money from the pay packet and the cheque in it.
Approximately 4 or 5 days later I received a letter from Allan Jarman. I have made an extensive search but have been unable to find that letter. The contents of that letter were, relevantly, that I had been granted a clearance by the Union.
Approximately 1 or 2 days following the receipt by me of the letter described in paragraph 10 I attended at the office of my solicitors Maurice May & Co with Mr Joe Kannan to discuss the [sic] discuss the letter with my then solicitor, Mr Victor Dominello. He read the letter and advised me to write a letter to the Union to the effect that I wishes to pay my Union dues and that I be allowed to pay the dues.
Approximately 1 or 2 days following the receipt of the letter described above I telephoned Allan Jarman. I said words to him to the effect:-
"You can't give me a clearance because I have to pay a quarter in advance like any other member has to."
He replied with words to the effect:-
"As far as we are concerned the matter is closed."
On or about 17 August 1994 I forwarded a letter to Allan Jarman responding to the letter described in paragraph 9. Annexed hereto and marked with the letter "G" is a true copy of an original typed copy I made of that letter. I made that copy because I do not have a photocopier at home.
I received no response to the letter described as Annexure G.
In or about early 1995 I telephoned the Union Office and asked to speak to Allan Jarman. I said words to him to the effect:-
"I am coming over with $200 to pay my yearly dues."
Jarman replied with words to the effect:-
"That will be a trip for nothing."
As a result of what Allan Jarman said I did not attend at the Union office to pay my dues."
In the letter referred to in paragraph 14, Battese asked to be sent an account for the period 7 August 1994 to 30 December 1995.
A computer record of Battese's financial status within the Union was in evidence. He was in credit on 11 August 1994 in the sum of $19.66. A credit entry of $3.98 was made on 12 August 1994 with the result that he was then in credit in the sum of $23.54. Thereafter a debit entry of approximately $55.00 was made every three months commencing on 1 October 1994 and concluding on 1 April 1996. On 21 May 1996 there was a credit entry in the sum of $400.00. At that time the account was in debit $360.12 and the payment brought the account into credit by $39.88. A further debit entry was made on 1 July 1996 in the sum of $50.29 bringing the account into debit by $18.41. On 2 July 1996 a payment of $60.00 was made bringing to account into credit balance of $41.59 on 2 July 1996. That was the status of the account at 19 August 1996.
The relevant evidence concerning Cook was set out in the statutory declaration accompanying his application. It was:
I have been a financial member of the Union for approximately eighteen (18) years. Throughout that time I have arranged for my Union fees to be paid by automatic payroll deductions.
On 10 August 1995 I received notice from Australia Post that an inquiry would be held into my conduct as an employee of Australia Post and that I was suspended with pay until further notice. Annexed and marked "D" is a true copy of the letter from Australia Post dated 10 August 1995.
Following the inquiry by Australia Post I was informed by Australia Post that I would be dismissed as an employee of Australia Post effective on 15 November 1995.
On 14 November 1995 I commenced proceedings against Australia Post (No. NI95/4428) for unlawful termination of employment. In this application I sought reinstatement as an employee of Australia Post pursuant to s.170EE(1) of the Industrial Relations Act and consequential orders to maintain the continuity of my employment. One reason for seeking reinstatement was that I wanted to stand as a candidate in the next CEPU election in the event that the 1994 CEPU election was declared void and a new ballot ordered. Annexed and marked "E" is a copy of my application dated 14 November 1995.
The unlawful termination was heard before Judicial Registrar Locke and I have now been informed by the list clerk of the Court that judgment will be given in this matter on 9 September 1996 at 9.00 a.m."
The statutory declaration filed with the application and relied upon at the hearing on 6 September 1996 concluded with paragraph 11. On 12 September 1996 the Registry of the Court received a letter enclosing a missing page of the statutory declaration which provided:
"12.Annexed and marked "F" is a true copy of my union membership card. Prior to 31 March 1996 I was not asked to return my card nor was my membership revoked.
I began to pay quarterly payments for union dues on 23 May 1996. I paid my dues by money order which I witnessed and sent by way of acknowledged receipt mail and had witnessed by two members of staff. I took these special steps to ensure my fees were paid because I believed that prior to this time had I tendered my quarterly dues to the Union receipt would have been refused.
The basis of my belief was that I was informed by Noel Battese at various times that he had tendered his dues but they were refused. I believed it would be an exercise in futility on my part because I perceived that Noel Battese had more influence than I within the Union and because of the complete domination of the officers of the Union by the Natour/Jarman faction."
A computer record of Cook's financial status within the Union was also in evidence. It discloses that between the periods 9 August 1995 to 15 November 1995 there was a fortnightly credit entry of $8.49. On 29 November, 13 and 27 December 1995 there is a debit entry of $8.49 with the result that by the end of 1995 the account was in debit $25.47. On 1 January 1996 a debit entry of $56.59 was entered and a further debit entry of the same amount was made on 1 April 1996 at which time the account was in debit $138.65. On 23 May 1996 a credit entry is recorded of $138.15. On 1 July 1996 a payment of $59.10 was recorded and on the same day a debit entry of $58.29 recorded. The effect of the latter entries was that both on 1 July 1996 and 19 August 1996 Cook's account was in credit in the sum of 31 cents.
The relevant rules of the Union are found, in the main, in rules applying only to the Division and not other divisions within the Union. Within the relevant Divisional rules there are rules governing elections in a Branch and rule 68 concerns nominations. The critical part of rule 68 provides:
"68 - BRANCH NOMINATIONS
(a)Candidates for office on the Branch Committee of Management except where otherwise provided, must be financial members of the Branch and the nominated in writing by at least two other financial members of the Branch. All nomination papers must be signed by and contain the addresses of those making the nomination and be countersigned by the person nominated. The provisions of this sub-rule shall also apply to candidates for office as Returning Officer, Assistant Returning Officer, Divisional Conference Delegate and Alternate Divisional Conference Delegate, Divisional Executive Member and Alternate Divisional Executive Member of the Division and any other office within the jurisdiction of the Branch. No person shall be eligible to be nominated for or elected to any office or position unless such person shall have been a continuously financial member of the Branch for a period of not less than 12 months immediately prior to the closing date of nominations.
(b)Candidates for Office of: Branch Vice President, Technical Divisional Section, Branch Vice President, Operator Divisional Section, Branch Assistant Secretary, Technical Divisional Section, Branch Assistant Secretary, Operator Divisional Section, Branch Organiser, Technical Divisional Section, Branch Organiser, Operator Divisional Section and Divisional Section Committee of Management Members must be financial members of the relevant Divisional Section and be nominated in writing by at least two (2) other financial members of the same Divisional Section." (emphasis added)
It can be seen that the last sentence of 68(a) deals with the financial status of a member who is nominated as a candidate for an office and who might be elected to office. There are several provisions in the rules which deal with whether a member is financial. The starting point are rules of the Union of general application which apply to all divisions and provide:
"5.3Fees and Contributions
Fees and contributions shall be paid in accordance with the rules of the appropriate division.
5.4Unfinancial Members
5.4.1Any member who has failed to pay the entrance fees, or contributions, levies or fines imposed in accordance with the rules of the Union or appropriate division, shall be deemed to be unfinancial in accordance with those rules.
5.4.2On payment of the arrears referred to in sub-rule 5.4.1, a member shall be deemed to be financial from the date of payment in accordance with the rules of the appropriate division."
The financial status of a member in the Division is specifically dealt with in rule 4 of the rules applying to the Division. In that rule there is a definition of "financial member" which provides:
""Financial Member" means a member whose contributions, fines, levies and other dues to the Union are paid:
To the end of the quarter for which they are due; or
(ii)A member from whom the Union has received a signed authority to his or her employer for deduction of subscriptions from salary in accordance with a salary deduction agreement with the Union, or a signed authority to a bank, credit union or similar institution for deduction of subscriptions from salary and who does not owe any other contribution, levy, fine, or dues not covered by the deduction authority;
(iii)In the event of deduction of subscriptions from salary being discontinued or a deducting employer, a member who at the time of deduction of subscriptions being discontinued was on payroll deductions, and was financial, shall be financial for a period of thirty days following the date of cessation."
Rule 34 of the Division's rules deals with contributions. The position of members of the Branch is dealt with specifically in rule 34(b) which provides:
"(b)Categories of subscriptions for members of Postal and Telecommunications Branches (sic) shall be as follows:
The rate of membership contributions for all members covered by this sub-rule shall be set out in (A), (B) and (C) of this sub-rule and shall be payable in advance either quarterly, half yearly or yearly as the Branch may determine, or fortnightly when the member has signed an authority for either the employer to deduct the dues from his/her salary or a financial institution to transfer funds via a Direct Deposit from the member's account to the Union and the authority is still effective. Provided further that, following necessary investigation, the Branch Committee of Management shall have the power, upon application, to waive for a predetermined period the payment of contributions by a member who may be on leave on reduced pay. Contributions shall be taken to include a member's journal subscription.
(A)The rate of contribution shall be 1% of the adult maximum rate specified for a Building Services Grade 1 in Instructions issued by the Telstra Corporation.
(B)Contributions for members employed from fifteen (15) to thirty (30) hours per week shall be set at one half the contribution rate specified in (A) of this sub-rule; contributions for members employed for less than fifteen (15) hours per week shall be set at one quarter of the contribution rate specified in (A) of this sub-rule.
(C)Contributions for all members receiving less than the adult minimum rate for their job classification, other than as specified in (B) of this sub-rule shall be set at half the contribution rate specified in (A) of this sub-rule.
The assessment of salaries for the purpose of determining contributions in accordance with this Rule shall be undertaken at the commencement of each quarter and be based on salaries on the last day of the previous quarter.
New contributions determined in accordance with this sub-rule shall take effect:-
(i)in the case of members who have paid membership contributions quarterly, six monthly or annually in advance - on and from the first day of the quarter following the expiration of the period in relation to which the payment is made in advance; or
(ii)in respect of all other members - on and from the first day of the quarter after the quarter in which the assessment was undertaken.
The amounts calculated in accordance with this sub-rule shall be adjusted to the nearest amount capable of equal fortnightly deductions.
The Divisional Secretary shall advise all relevant employers and Branches of any variation to the rate of contributions by the end of the first month of the quarter in which the variation is assessed.
Notwithstanding the provisions of this sub-rule, the Divisional Executive may authorise, solely for the purpose of promoting recruitment, a lesser rate of contributions in a new recruitment area for a period not exceeding twelve (12) months.
Any member who allows his/her contributions, fines or levies to remain unpaid at the end of the quarter for which they are due may be fined by the Branch Committee of Management a sum not exceeding ten dollars ($10.00). All arrears of contributions, levies, fines or other dues may be sued for and recovered in the name of the National Secretary or Branch Secretary upon giving the member concerned fourteen (14) days written notice in which to become financial. All costs incurred for the recovery of arrears shall be debited as arrears.
Notwithstanding the foregoing provisions of this sub-rule, P&T Branches are authorised to give a ten per cent (10%) discount on contributions payable where financial members pay such contributions twelve (12) months in advance."
Later in that rule is a provision of general application to members in the Division, subject to provisions of special application which I need not refer to, which reads:
"(e)Membership contributions shall be paid by:
(i)authorised deductions from salary;
(ii)periodic payment of dues from a bank, credit union or similar institution; or
(iii)quarterly, six monthly or annual subscriptions in advance. For the purposes of this sub-rule quarterly subscriptions shall be payable before 1st April, 1st July, 1st October and 1st January in each year; six monthly subscriptions shall be payable before 1st April and 1st October in each year; and annual subscriptions shall be payable before 1st April in each year.
...
(h)Any member becoming unfinancial may be deprived of all the privileges of membership.
Members who are on leave without pay may, on a resolution of Branch Committee of Management, have their membership dues suspended for the period of leave without pay. Members whose dues are so suspended shall be entitled to the rights of financial members.
(j)Members on military service for a continuous period exceeding two months shall be exempt from payment of contributions during the period of military service."
It can be seen from rule 68 that there is a requirement in relation to an office to which rule 68(a) applies, that a person is eligible to be nominated or elected to the office if the person "shall have been a continuously financial member of the Branch for a period of not less than 12 months immediately prior to the closing date of nominations". A submission was made on Cook's behalf that rule 68(a) had no application to his nomination. However the language of rule 68(a) makes plain that it applies to candidates "for office on the Branch Committee of Management" and "any other office within the jurisdiction of the Branch". It may be accepted that rule 68(b) applies to specified offices and does not contain the requirement of twelve months continuous financiality. However, as a matter of construction, it is plain that rule 68(b) is intended to be an exception to the general provisions in rule 68(a). In my opinion the provisions of rule 68(a) clearly apply to both the office of President of the Branch and the office of Organiser within the Branch.
The expression "shall have been a continuously financial member" reflects a formulation or a variant of a formulation that has been considered by judges of the Federal Court of Australia on a number of occasions. In Re Royal Australian Nursing Federation (SA Branch) (1983) 6 IR 195 Fisher J considered a similar formulation conditioning eligibility to stand for office, namely that the candidate has been "a fully financial member of the Association for a period of one year immediately preceding the date of nomination for office". His Honour viewed as of significance the use of the expression "shall have been" and concluded that the requirement imposed by the rule related to the financial condition of the nominee during the preceding period identified in the rule. He thus concluded that the rule required a person nominated to have been a financial member throughout the preceding period of twelve months. His Honour referred to the words "shall have been" to draw a distinction between the rules he was considering and those considered by Smithers J in Lovell, O'Grady and James v Federated Liquor and Allied Industry Employees' Union of Australia (1979) 22 ALR 704. Given the similarity of the language in rule 68(a), and in particular the use of the words "shall have been", his Honour's reasoning is supportive of the construction adopted by the returning officer in these elections when rejecting the nominations of Battese and Cook.
A similar issue has been considered by Gray J on two occasions. In Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1 and Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 his Honour considered, respectively, a requirement that a member be a "continuously financial member" and "has been continuously a financial member". In Re Carter his Honour concluded that the rule required an examination of the financial status of a candidate twelve months prior to the date upon which nominations closed. If that examination revealed that the member was then financial, subject to any specific provisions dealing with periods of grace, then the next task was to examine the financial status of the candidate at relevant times from then to the date on which nominations close. If, for example, dues are paid quarterly then the position of the candidate in relation to each quarterly payment is to be examined to determine whether the dues were paid at the time and in the manner specified in the rules so as to result in the candidate having the status of financial member throughout the entire period. In Re Porter, his Honour adopted what he earlier said in Re Carter. Reference was also made to Bastion v Langton (No. 2) (1986) 18 IR 417. However the rules considered in that matter were in a materially different form and in materially different terms. That authority provides no real assistance in construing rule 68(a).
The provisions of rule 68(a) are not, in my opinion, relevantly distinguishable from those considered in Re ANF, Re Carter and Re Porter. Accordingly it is necessary, because of the provisions of rule 68(a), for both Battese and Cook to have been a financial member at a point twelve months prior to the closing date of nominations and to have been a financial member during the ensuing twelve months.
A submission was made on behalf of Cook that, in the present case, the rule should operate by reference to the period preceding the elections in 1994 that were declared void and not the period preceding the new elections ordered by the Court on 21 June 1996. While it was not relied upon by counsel for Cook, rule 68(f) provides some limited support for this contention. It provides:
"(f)All nominations for office, including full-time offices, or full-time position of Organiser, shall be called for by the Branch Returning Officer, on the first day of April in the year of election or should that day be a Saturday, Sunday or holiday, on the first day thereafter which is not a Saturday, Sunday or holiday, and shall close at 12 noon on the last day of April in the year of election or, should that day be a Saturday, Sunday or a holiday on the first day thereafter which is not a Saturday, Sunday or a holiday. Nominations shall be addressed to the Branch Returning Officer."
However the orders made on 21 June 1996 were clear in relevant respects. They provided that the elections were to be conducted in accordance with the rules subject to the operation of specific orders. One such order was that nominations were to open on 22 July 1996 and close at 12 noon on 19 August 1996. The plain effect of the order was to identify a date for the closing of nominations upon which rule 68(a) would, in terms, operate. The combined effect of the order and that rule was to require that a person who was nominated had to satisfy the condition precedent in the last sentence of rule 68(a) on 19 August 1996. While there are minor differences in the language internal to rule 68(a), the condition of continuous financiality must be satisfied to be eligible to be nominated. That, in my opinion, requires that a person who is nominated as a candidate in an election to which rule 68(a) applies satisfy that condition at the time the period for nomination closes.
It is thus necessary firstly to ascertain whether Battese and Cook were financial members on 19 August 1995. At that point Battese was in debit in the sum of $191.73. He had not paid the quarterly dues for the quarters commencing 1 October 1994, 1 January, 1 April and 1 July 1995. Nor did he pay, till May 1996, the dues for the quarters commencing 1 October 1995, 1 January and 1 April 1996. There was no suggestion that at relevant times Battese had signed, or was paying his dues by, an authority permitting deduction of dues from his salary. Thus para (i) of the definition of "Financial Member" in rule 4 of the Division's rules had application. It was necessary that his "dues to the Union are paid ... to the end of the quarter for which they are due". The combined effect of rule 34(b) and 34(e) is that the dues must be paid in advance. While there was no direct evidence of whether, as provided in rule 34(b), a decision had been made by the Branch that the dues were to be paid quarterly, half-yearly or yearly, it may be inferred from the form of the financial records maintained by the Branch that a decision had been made that the dues were to be paid quarterly. That being so, they had to be paid prior to the commencement of each quarter, that is prior to 1 April, 1 July, 1 October and 1 January; see rule 34(e)(iii). As already discussed, Battese had not paid his dues for four quarters prior to 19 August 1995. He was thus, subject to an argument I deal with shortly, not a financial member on 19 August 1995. In addition he failed to pay, prior to the commencement of the quarter, his dues for the following three quarters. He thus remained an unfinancial member for a significant portion of the period of twelve months following 19 August 1995.
Counsel for Battese submitted that by offering to pay dues in the way described in his statutory declaration, he had paid his dues or the Union was estopped from contending he had not. The requirement in rule 4, found in the definition of "Financial Member" is that dues "are paid". The tender of the sum of $100.00 cash in August 1994 and the refusal of the Assistant Secretary of the Branch, Mr Natour, to accept it might constitute payment: see Hogg v Smyth (1893) 32 LRIr 191 and, far more remotely, so might the offer to pay $200.00 in early 1995 together with the intimation from the Secretary of the Branch, Mr Jarman, that any money tendered would not be accepted might also constitute payment. However even accepting, for present purposes, that a payment was made of $100 on 11 August 1994 as dues payable to the Union and a further payment of $200 made in early 1995, the first payment would only have accounted, when taken with the credit to Battese's account of $23.54, for the quarterly dues for the quarters commencing 1 October 1994 and 1 January 1995. Similarly the $200 offered to be paid in early 1995 would have accounted for the quarters commencing 1 April 1995, 1 July 1995 and 1 October 1995 and part of the dues for the quarter commencing 1 January 1996. No tender was made of the residue of the dues for the quarter commencing 1 January 1996 nor for the quarters commencing 1 April 1996 and 1 July 1996. In my opinion, viewing the operation of the rules as benevolently as possible, the facts do not support a finding that Battese had paid the dues for the first three quarters of 1996. It was necessary for him to have done so to have been continuously financial for the period 19 August 1995 to 19 August 1996.
It was not submitted on behalf of Cook that, as a matter of fact, he was continuously financial between 19 August 1995 and 19 August 1996. Plainly he was not as no dues were paid in advance, for the quarters commencing 1 January and 1 April 1996 after deductions ceased after 15 November 1995 even allowing for the period of 30 days deemed financiality: see the concluding words in par (iii) of the definition of "Financial Member" in rule 4.
Both Battese and Cook submitted that rule 68 imposed on a member a condition, obligation or restriction that was oppressive, unreasonable or unjust: see s196(c). A collateral attack may be made on the validity of a rule in an inquiry, see Re Keely; ex parte Kingham (1995) 129 ALR 255.
The contentious effect of the rule identified by Battese was that the dues payable by a member of the Branch were not specified in the rules and the amount payable depended on a number of factors including the status of the member and the prevailing rate of pay for a person in the classification of Building Services Grade 1 in Telstra; see rule 34(b)(A). It followed, it was submitted, that as the rules did not expressly provide for advice to be given to members of the amount due by way of contribution, a condition arising elsewhere based on continuous financiality might operate oppressively, unjustly or unfairly.
However, as was pointed out by counsel for the Union, rule 32 provides that a person who is admitted to membership of the Union is to be informed in writing at the time of making application for membership of the financial obligations arising from membership. As a matter of construction, the Union would be obliged to inform a person applying for membership of the obligations to pay contributions in the manner provided by the rules. It may be accepted that the rules are silent as to the amount that has to be paid. However a member, having been alerted to the obligations imposed by the rules, might be expected to inquire of the Union of the amount that needed to be paid assuming, as a matter of fact, notice had not been given. The form of computer generated accounts in evidence would tend to suggest that, as a matter of fact, notice was given of amounts due. However the rules themselves provide for the Divisional Secretary to advise both employers and Branches of any variation to the rate of contribution: see the fourth last paragraph of rule 34(b).
The rule thus provides a mechanism involving advice to a member, when applying for membership, of obligations under the rules and notification to Branches of the contributions due from time to time. The operation of the rules is, in my opinion, a reasonable one and it cannot be said that the last sentence of rule 68(a) offends s196(c) because, elsewhere in the rules, there is no provision for notifying members of moneys due by way of contribution or dues.
Counsel for Cook sought to impugn the rule on a different basis. It was said that the rule does not allow for eligibility for office to be established by payment of quarterly dues in arrears. While plainly a rule may so provide, a rule that does not, is not, in my opinion, one that contravenes s196(a) by virtue of that characteristic. The funds necessary to manage a registered organisation, and for that matter virtually every corporation and association, and to provide services to its members are of fundamental significance. To require that members pay dues in advance is unexceptionable. While a rule requiring continuous financiality of an excessive period having regard to character of the membership of the organisation may contravene s196(c): see Leveridge v Shop Distributive and Allied Employees' Association (1976) 31 FLR 385, there is nothing to suggest that this is so of rule 68(a) when viewed with the obligation arising elsewhere in the rules to pay dues in advance.
Counsel for Cook also put a submission that rule 68(a) conflicts, in some respect, with s170EE of the Act. This submission was made by reference to the proceedings that had been commenced by Cook under s170EA but not yet decided. It was submitted that an order might be made under s170EE requiring the employer, in this case the Australian Postal Commission, to maintain the continuity of an employee's employment if reinstatement is ordered: s170EE(1)(b)(i). The submission, as I understood it, was that an employee such as Cook might be reinstated and, notwithstanding the making of an order under s170EE, any nominal reinstatement of payroll deductions would not have the effect of reinstating financiality. The submission, in essence, went to the scope of the power conferred by s170EE. That section provides a statutory remedy for an employee whose employment has been terminated. The section both defines and limits the scope of the Court's powers. If the Court does not have power to make an order affecting the rights of the employee, not only as against the employer but as against a third party, then that limit is a necessary consequence of the terms in which the legislature has conferred the power. That the power is so limited does not, in my opinion, bear upon the validity of the rules or any particular rule.
During the course of the hearing on 6 September 1996 reference was made to a mechanism in 34(i) suspending the obligation to pay dues for a member on leave without pay. Rule 34(j) exempts a member from paying dues while on military service for periods in excess of two months. It might be thought that the rules should provide a similar mechanism for members who are unemployed, though this submission was not made on behalf of Cook.
However when regard is had to the eligibility rules of the Union, it is clear it is an association of persons employed or usually employed in particular callings. In so far as postal services are concerned, it is an association of persons "employed ... in the provision of ... postal services..." see rule 2.5.1. There does not appear to be a rule that automatically terminates membership to a person who ceases to be an employee in one of the callings referred to in the Union's eligibility rules. Such rules have, historically, been found in the rules of some, though not all, registered organisations. Thus a postal worker who ceases employment as a postal worker, either by resignation or dismissal, may remain a member of the Union. If the person is, at the time, paying his or her dues by payroll deductions, a mechanism exists in the rules for the transition to payment by quarterly payment. The member has a period of grace of thirty days to effectuate the transition. Thereafter the quarterly dues, which presently are approximately $50, must be paid.
While an organisation might decide to adopt a rule dealing with the circumstances of an unemployed member and the dues they might pay, that would ordinarily be a matter for the organisation. The failure of an organisation to make such a provision does not, in principle, cast doubt on the validity of the rules or specific rules concerning elections where eligibility depends on financiality. It is to be remembered that the consideration of the rules of an organisation by reference to s196(c) proceeds on the basis that the rule exists because it has been adopted by the organisation: see Doyle v Australian Workers' Union (1986) 12 FCR 197 at 205-206 and the Court's function is not to impose rules that it might think are desirable: see Municipal Officers' Association v Lancaster (1981) 54 FLR 129.
I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate: ........ ........ .......
Dated: 19 September 1996
APPEARANCES
Counsel for Battese: Mr Kenzie, QC
Solicitor for Battese: Maurice May & Co
Counsel for Cook: Mr P King
Solicitor for Cook: Paul Etherington & Associates
Counsel for the Australian
Electoral Commission: Mr Johnson
Solicitor for the Australian
Electoral Commission: Australian Government Solicitor
Mr Mason appeared in person.
Counsel for Messrs Metcher
and Jarman: Mr Hodgkinson
Solicitor for Messrs Metcher
and Jarman: McClellands
Counsel for the Commications,
Electrical, Electronic, Energy,
Information, Postal, Plumbing and
Allied Services Union of Australia: Mr R Reitano
Solicitor for the Commications,
Electrical, Electronic, Energy,
Information, Postal, Plumbing and
Allied Services Union of Australia: RL Whyburn & Associates
Written Submissions Complete:
Dates of Hearing: 6 September 1996
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