In the matter of an application by Brzycki, Peter Richard for an inquiry into an election in the Royal Australian Nurses Federation, South Australian Branch

[1984] FCA 265

Re: IN THE MATTER OF AN APPLICATION BY PETER RICHARD BRZYCKI FOR AN INQUIRY
INTO AN ELECTION IN THE ROYAL AUSTRALIAN NURSES FEDERATION SOUTH AUSTRALIAN
BRANCH
No. SA 12 of 1984
Industrial Law - Concilliation and Arbitration
2 FCR 546
9 IR 464

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial Law - election inquiry - nomination for Branch council of secretary of State registered union - rule excluding persons "employed by" State Union from being "eligible to hold or continue to hold" office - whether person not eligible to "hold" office is eligible for nomination - whether person holding elected office of secretary is "employed".

Conciliation and Arbitration - Election inquiry - Rules excluding persons employed by State union from being eligible to hold or continue to hold office - Whether person holding elected office as secretary is a person employed by - Whether employee may nominate for election and resign if elected.

HEADNOTE

The stipulation in a branch rule that "no person shall be eligible to hold or continue to hold any office" if such person is employed by the Association or any of its branches did not prevent an employee from nominating for election. The rules elsewhere expressly refer to the exclusion of certain persons from eligibility to nominate for election and in those circumstances the rule could not be construed as depriving an employee of eligibility to nominate for a position so that he could , if elected, resign his employment to enable him to be qualified to hold the office to which he had been elected.

The elected office of secretary of the State union, where that officer is the registered officer and the officer to sue and be sued on its behalf and the officer authorised by the rules to affix the seal to any documents required to be sealed and is a member of branch council and of the executive committee, whose services cannot be dispensed with either by notice of termination or by summary dismissal for serious misconduct, was not an office of employment within the meaning of the expression as used in the rules, which manifest an intention to exclude only persons who were employed as distinct from officers elected.

HEARING

Adelaide, 1984, August 23, 24. #DATE 24:8:1984

APPLICATION.

Application for inquiry under Pt X of the Conciliation and Arbitration Act 1904 (Cth).

J. A. Bowes, appeared in person.

P. Moloney, for the applicant.

P. Heywood-Smith, for the respondent.

P. C. Walsh, for the returning officer.

D. Bourne, for the successful candidate.

Solicitors for the applicant: Mahoney & Partners.

Solicitors for the respondent: Johnston Wither & McCusker & Co.

Solicitors for the returning officer: Australian Government Solicitor.

Solicitors for the successful candidate: Stanley & Partners.

G.F.V.

ORDER

Application dismissed.

JUDGE1

Peter Richard Brzycki (the applicant) is a member of the Royal Australian Nurses Federation (the Federation) which is an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act). He has applied for an inquiry under Part IX of the Act into an alleged irregularity in or in connection with the election of a person to fill a casual vacancy in the office of a Councillor on the Branch Council of the South Australian Branch (the Branch) of the Federation. That office of Councillor is referred to in some of the documents filed as an "Ordinary Member of Branch Council". The election is being conducted under s. 170 of the Act by Mr. Carey,an officer of the Australian Electoral Commission.

1. The certified Federal rules of the Federation prescribe (and set out in Schedule A) a set of Standard Branch Rules which govern every branch, subject to the right of each branch to make rules for its own internal management and to alter the Standard Branch Rules in so far as they apply to that branch. The application for an inquiry was referred to the Court by the Industrial Registrar under s. 159(4)(a) of the Act. A secret postal ballot for the vacant office has been conducted and the votes counted but the declaration of the poll has been restrained by order of Fisher J. pending the inquiry.

2. Nominations for the office of Councillor were received from Julia Ann Bowes, Marilyn Kay Beaumont and the applicant. In the present hearing Mr. P.N. Moloney appeared for the applicant, Mr. P.C. Walsh for the Returning Officer, Mr. D. Bourne for Ms. Beaumont and Mr. Heywood-Smith for the Branch. Mrs. Bowes appeared in person.

3. The irregularity alleged by the applicant is that the nomination of Ms. Beaumont was wrongly accepted, in that she was not eligible for nomination for the office because of the terms of Standard Branch rule 18 which included the following provisions :-
   
   

"Qualification for Office and Nomination

(a)(i) A candidate for the Branch Council or

for a position of Officer of the Branch (other than the Branch Secretary) shall have been a fully financial member of the Association for a period of one year immediately

preceding the date of nomination for

office.

(a)(ii)No person shall be eligible to hold or

continue to hold any office referred to in paragraph (a)(i) hereof if such person is

employed by the Association or any of its

Branches or by the Royal Australian Nursing Federation Queensland Branch Union of

Employees, The Royal Australian Nursing

Federation Industrial Union of Workers,

Perth and the Royal Australian Nursing

Federation (S.A. Branch) provided that the provisions of this Sub-Rule shall not apply during the term of office of any person

holding any of the said offices at the time of certification of this Sub-Rule."

It was common ground that the proviso in (a)(ii) above was not relevant in this case.

1. An affidavit was filed on behalf of the Returning Officer setting out that Mr. Carey, after examining the Federation's rules, formed the view that they drew a distinction between, (i) eligibility to nominate for office, (ii) eligibility to be elected to office and (iii) eligibility to hold office; further, that rule 18(a)(ii) did not prevent a person, if "employed" within the meaning of that rule, from nominating for office or from being declared elected to office, i.e. that the sub-rule only prevented such a person from "holding" the office. Mr. Walsh advanced submissions in support of the view acted upon by Mr. Carey. Mr. Moloney, on behalf of the applicant contended that the returning officer erred in law in so construing the sub-rule. In addition, he contended that Ms. Beaumont was "... employed by ... the Royal Australian Nursing Federation (S.A. Branch) ...", which is an association of employees registered under the Industrial Conciliation and Arbitration Act (S.A.), and is the association referred to by that name in Standard Branch Rule 18(a)(ii). It will be convenient to refer, in these reasons, to that body as the State Union. It was common ground that Ms. Beaumont is and was at all material times the secretary of the State Union but there was a dispute as to whether she was "employed" in that capacity.

2. Mr. Moloney said that there were two issues in the case. Firstly, the meaning to be given to the words in Standard Branch Rule 18(a)(ii) "no person shall be eligible to hold or continue to hold any office ...". Secondly, whether Ms. Beaumont was at all material times "employed by" the State Union within the meaning of those words in sub-rule 18(a)(ii). That statement of the issues did not find favour with all of the other parties but it is convenient, in dealing with the application, to adhere to the applicant's statement of the issues.

3. Mr. Moloney submitted that the rule was designed to prevent servants of the Federation or its branches or other bodies, including the State Union, from becoming masters of the Branch; that the rules were intended to ensure that control stayed with the members practising in the field. He also submitted that it would be absurd if rule 18(a)(ii) were construed in such a way that Ms. Beaumont would be allowed to nominate for the office, and to be declared elected to the office but would not be permitted to hold the office. I am unable to agree that Standard Branch rule 18(a)(ii) would lead to an absurd result if it were construed as having that meaning which was criticized by the applicant. In my view it is possible that the policy behind the rule may be to allow persons who are employees of the Federation or of the branches or of the State Union to nominate for office and to be elected to that office, if the members so decide by ballot, but that they shall not "be eligible to hold or continue to hold any office ... if such person is employed by ..." (certain bodies including the State Union). The intention behind the rule, if it were so construed, would be to enable the person "employed", if elected by the members to the office, to resign from the employment and thus overcome the disqualification from being "eligible to hold" the office (as set out in sub-rule 18(a)(ii)).

4. The applicant contends that in that sub-rule the words "no person shall be eligible to hold or continue to hold any office ..." are to be construed as if the words "nominate for or" were inserted in that sub-rule immediately before the words "hold or continue to hold any office ...". In my opinion, the words are clear and, applying the normal canons of construction, no ground has been shown for construing the sub-rule in the manner advanced by the applicant i.e. by notionally inserting the suggested words. Moreover, there are three other matters which give some support for that opinion.

5. Firstly, considering the sub-rule in its immediate context, it will be noted that the sub-rule immediately preceding it refers to "a candidate" and also refers to "nomination for office". In contrast sub-rule 18(a)(ii) does not include any express reference to "a candidate" or to "nomination for office". Again, turning to the sub-rule immediately following it (i.e. sub-rule 18(b)) it will be seen that it also refers to "a candidate" and "nomination for office". In my opinion the immediate context of Standard Branch Rule 18(a)(ii) supports the opinion that the sub-rule should be read as meaning what it says and not as if the words "nominate for or" were inserted.

6. Secondly, if one looks at the rules as a whole, there are other provisions which indicate that, where it is intended to ensure that a person shall not be "eligible to nominate for or hold office", the rules make that intention quite clear by expressly including the necessary words. For example, Federal rule 40(b) expressly uses those words, saying "No person who holds office or any paid position in any other Association ... (excluding, inter alia, the State Union) shall be eligible to nominate for or hold office in the" Federation (underlining added).

7. Thirdly, if, contrary to the opinion already expressed, the meaning of sub-rule 18(a)(ii) is ambiguous, then reference to the history of alterations to the sub-rule militates against the construction advanced by the applicant. By letter dated 23 December, 1981, the Industrial Registrar stated that he had certified certain alterations to the rules, including an alteration which resulted in sub-rule 18(a)(ii) assuming its present wording. It is significant that, for some years immediately preceding that certification, there appeared in sub-rule 18(a) the additional words "nominate or"; it provided that "no person who holds office or any paid position in ... shall be eligible to nominate or hold office". The amendment certified on 23 December, 1981 changed the wording so that it no longer stated that no person in the prescribed class "shall be eligible to nominate"; henceforth it only provided that no such persons were "eligible to hold or continue to hold any office". The history of the rule as to the removal of the words "(eligible) to nominate" can only be taken into account if there be ambiguity but, if reference to it is permissible, then it tends to contradict the applicant's contention.

8. The applicant submitted that a candidate who is nominated and who received the requisite number of votes "holds office (from) the moment that the last ballot paper has been" put in the ballot box. I am quite unable to uphold that submission either as a general proposition or in the light of the Federation's rules. The applicant relied upon passages from Beeson v Blayney (1966) 8 F.L.R. 292 at 295. In my opinion those passages do not support the submission of the present applicant. They are directed to a question as to when an election is complete - not the question of when an elected person commences to hold office. Nor do I consider that Lynch v McGrane (1965) 7 F.L.R. 188, which is cited in Beeson v Blayney, supports the applicant; it related to an officer who "was the only person nominated for this position" and the Court pointed out that he "could have obtained an order from (the) Court to enforce his rights". The Court took the view that he was "entitled to be declared elected" and that the absence of "a formal declaration of his election" could not adversely affect his rights to participate in a meeting. However, the Court did not have to decide any question as to the construction of rules relating to when he commenced to hold office.

9. I do not regard any of the other cases cited by Mr. Moloney as standing in the way of the opinion which I have expressed. Accordingly, the applicant has failed to persuade me that the rules of the branch prevented Ms. Beaumont from being a candidate in the election. It follows that the returning officer did not err in accepting her nomination and the irregularity alleged by the applicant did not occur. The orders sought must be refused and the order made by Fisher J. on 25 July, 1984 must be revoked.

10. In the circumstances it is not necessary to decide the second issue, namely, whether Ms. Beaumont was "employed by" the State Union. In general it is undesirable for the Court to decide upon matters which are not necessary to its decision. In this case if Ms. Beaumont is declared elected to the office of Branch Councillor, the second issue will be likely to arise. In the particular circumstances of this hearing, in which evidence as to her work as secretary of the State Union has been placed before the Court, and legal argument has been heard at some length on behalf of the parties, that second issue should be dealt with having regard to the undesirability of the parties being put to the expense of further litigation involving such evidence and argument.

11. Mr. Moloney on behalf of the applicant has carefully reviewed the evidence as to the office of secretary of the State Union and made a detailed examination of the rules of the State Union but there are countervailing factors to those aspects of the rules relied upon by him. As secretary Ms. Beaumont is one of the officers of the State Union; she is also the registered officer and is the officer to sue and be sued on its behalf. She is also the officer authorized by the rules to affix the seal to any documents required to be sealed. She is also a member of the Branch Council, which is the highest deliberative body of the Union and is a member of the Executive Committee. Her services can not be dispensed with either by notice of termination or by summary dismissal for serious misconduct (see generally McKay v Oliver (1967) 15 F.L.R. 39) although in certain prescribed circumstances she may be removed from office after being summoned to show cause; she has a right of appeal against any such removal. As Mr. Bourne pointed out those provisions as to her removal may be contrasted with the Council's power to appoint and to discharge employees. Rule 15(d) of the rules of the State Union gives the Council power to "appoint any person, other than the officers of the Association whose services may be deemed necessary for the carrying out of the objects of the Association and at any time suspend or discharge any such person."

12. I have come to the conclusion that Ms. Beaumont, in holding the office of secretary, was not and is not "employed by" the State Union within the meaning of those words in Standard Branch Rule 18(a)(ii). If the intention expressed in the sub-rule was to exclude elected officers as well as employees then, in my opinion, the rule would have made that clear. I consider that the sub-rule, in simply using the words "if ... employed by", shows an intention to only exclude persons who are "employed" as distinct from officers elected by the members to hold office under the rules. If the sub-rule in its use of the word "employed" is ambiguous, as was expressly contended by Mr. Heywood-Smith, then reference to the history of the relevant part of the sub-rule runs counter to the applicant's submission. In July 1978 the sub-rule excluded any "person who holds office or any paid position in" certain bodies other than certain state-registered Nurses' Federations including the State Union. Although at that time the employees of the State Union were not excluded, it is of some significance that the clause dealing with exclusions did use the words "person who holds office or any paid position". Those words, expressly covering two distinct categories, i.e. those holding office and those occupying paid positions, were still in the rule when it was altered in October 1981 (certified by the Industrial Registrar on 23 December, 1981) and must have been given consideration by those drafting the alterations. It is therefore significant that the rule, as altered in 1981, did not expressly exclude a "person who holds office" - it only excluded a person who "is employed".

13. Accordingly, in my opinion, it is not correct to conclude that Ms. Beaumont, as secretary of the State Union, either is or was at any material time "employed by" the State Union.

14. As the Court has found that no irregularity has occurred the orders sought must be refused and the order made by Fisher J. on 25 July, 1984 must be revoked.