Holden, David v Richardson, G

[1978] FCA 58

CATCHWORDS

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Industrial law - interpretation of eligibility rule

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of union - persons appointed as officers" - new position

of "Research Officer" not referred to in rules - duties

to assist General Secretary in preparing cases but no

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power to act on own authority - not an officer" thereby

entitled to seek membership - Conciliation and Arbitration

Act 1904 s.141.

David Holden v. Richardson and Others

V No. 22 of 1978

Coram: Keely	J.
Melbourne
21 July 1978.

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IN THE FEDERAL COURT	) )
OF AUSTRALIA	) V No. 22 of 1978
)
INDUSTRIAL DIVT~TON	1

IN THE MATTER of the Conciliation

and Arbitration Act 1904

BETWEEN :

DAVID HOLDEN Claimant

- and -

GORDON RICHARDSON 6r ORS Respondents

Coram: Keely J.

Date: 21 July 1978

REASONS FOR JUDGMENT

This is an application under section 141 of the

Conciliation and Arbitration Act for certain orders arising out of the alleged failure of the respondents to accept

as valid a nomination by the applicant for the position

of Honorary Secretary in the Victorian Branch of the Australian Public Service Artisans' Association.

Miss Hickey of counsel appeared for the respondents:

Gordon Richardson, Frank Scotti, Len Spencer, Adrian I k l s h ,

I'	Roy Smith, Graham Hobbs and Les Wilson. One other
respondent, Franc Lipscombe, ~7as not served with the
papers and accordingly was not represented in these
proceedings.

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Miss Hickey raised as a threshold point the

argument that the applicant is not entitled to make

this application because h has not been validly admitted

to membership of the association. The basis of this

contention is that the applicant does n t fall within

the terms of rule 4 of the certified rules of the

association which sets out the conditions of eligibility

of the association. As Miss Hickey put it, there are

broadly two categories of potential members contemplated

by the terms of that rule:

1. Persons employed in the Australian Public

Service in the work of an artisan and certain

other categories of work;

( 1

2. Persons appointed officers of the Association

and admitted as members thereof."

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On the factual material before the court, it

is clear that the applicant cannot bring himself within

the first of these two categories. It fo l lows that in

order to establish that he is entitled to'bring these

proceedings as a member of the association, the applicant

must show that he xyas appointed an officer of the

association and aGmitted as a member.

The association has approximately 3,000 members.

It has only one full time officer (the General Secretary).

The other officers are honorary. It has branches in all

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States, but not-in the Australian Capital Territory or Northern Territory. A Conference is required under the rules to meet regularly every third year, and this i

Tri-ennial Conference has delegates from the various

branches, the number depending upon the number of members

in each branch. At the last Conference in December 1977

there were two delegates from each of the States of

I	Queensland, New South Wales, Victoria, South Australia,
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!	one delegate from Western Australia nd no delegate from
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I	Tasmania. These delegates, together with the officers
of the association constitute the Tri-ennial Conference.
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i	The applicant was appointed to the position (to	use
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!	a neutral word) of Research Officer	in October 1975 and
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was purportedly admitted as a member of the association

I	in September 1975.
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i	On the material before	me I make the following
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I	findings	:
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1. The certified rules do not provide for the

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office of Research Officer.

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2. The applicant was appointed - not elected -

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I to the position of Research Officer,

3 . The applicant is not by virtue of that position

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a member of any committee, Federal or Branch,	of
the association.

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4 . The duties of the position of Research Officer

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were not laid down by the Tri-ennial ConfereuLe

of the association at its meeting in December

1 9 7 4 which dealt with the question of the need

f o r further assistance in the performance of

the work of the association.

5 . After the meeting of the Tri-ennial Conference in December 1 9 7 4 the General President and

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General Secretary discussed and decided upon

the duties of the proposed Research Officer.

Those duties could h2ve been altered by the

incoming General President and General

Secretary after the'next Tri-ennial Conference

-in December 1977 although there is no evidence

that Ehey were in fact altered in any way.

6 . The duties of the' position of Research Officer

were essentially to use industrial relations

knowledge to provide what the General President

of the association called in his evidence

"back up'' to the General Secretary in the

performance of his duties. The General Secretary

was and is the'only advocate for the association

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and the Research Officer's duties were primarily

t o assist the General Secretary in the preparation

of cases and to dra€t proposed variations for

awards.

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7. In the performance - of all of his duties the

Research Officer was under the direction of

the General Secretary or the Executive Council

I	and had no power Zo represent the association,
nor to act upon his own authority in any matter.
Mr Lalor, the General President, said the and could not take action unless he was directed
by the General Secretary or the Federal Executive..
On this basis he lacked what Kelly, CJ. called,
with the concurrence of Mr Justice Dunphy, !Ithe authority to make decisions in dealing with
I	outsiders without reference of the transaction to
superior direction". (\Jool Selling Brokers
Officers Case (1950) 67 C.A.R. 2 2 4 at. p. 2 2 7 ) .

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Miss Hickey carefully reviewed the decisions of the

Australian Industrial Court dealing with &e meaning of

the word "officer". She has referred me to the following

cases amongst others:

Grove v. Rizby & Ors (1971) 19 F.L.R. 160

Landeryou v. Tavlor & Ors (1969) 15 F.L.R. 147

Rounsevell v. Mitchell & Ors (1968) 11 F.L.R. 414.

I have considered those cases over the luncheon .

adjournment. Although those decisions are not binding

upon this Court, they arz bf course of considerable

persuasive authority. In general I accept the principles

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laid down in them, although I should like to reserve

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my opinion as to the way in which those principles were

applied by the majority of the Court to the facts in

Landeryou v. Taylor & Ors. -

On the material before me, I have come to the

conclusion that the applicant is ?.n employee and is not

an officer of the association within the meaning of

rule 4 of its rules. It follows that the preliminary

objection must be upheld. As the applicant is not

entitled to bring these proceedings, the order nisi is

discharged.

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