In the matter of an application by C. Keily & in the matter of an inquiry by the Court into elections for offices within the Tranport Workers Union of Australia, Victoria Branch
[1992] FCA 195
•14 APRIL 1992
Re: CHRISTOPHER KEILY
And: TRANSPORT WORKERS' UNION, VICTORIAN BRANCH
No. V I4 of 1992
FED No. 195
Registered Organisation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)
CATCHWORDS
Registered Organisation - election inquiry - alleged irregularities - construction of rule re eligibility for office - whether candidates were "employed in the industry" or "seeking employment" - whether candidates had been financial members continuously for the previous three years - whether union records of members' financial status were false - whether appointments of Federal organisers validly made - whether ratified by subsequent conduct or by resolution purporting to ratify - whether rule which prevented validly enrolled members from standing for office because they were not "employed in the industries set out in rule 3" imposed "restrictions that are oppressive unreasonable or unjust".
Industrial Relations Act 1988 s. 196(c), s. 218
HEARING
MELBOURNE
#DATE 14:4:1992
Solicitor for applicant: Harry Nowicki and Co
Appearing for applicant: Dr C. Jessup QC with P. Harris
Solicitor for respondents: Holding Redlich and Co .
Appearing for respondents: Ms. M. Hickey with A. Watson
Solicitor for Mr Mauchline: Howie and Maher
Appearing for Mr Mauchline: Ms K. Ford
Solicitor for Mr Elliott: Wilson Potter
Appearing for Mr Elliott: S. Howells
Solicitor for Transport
Workers' Union of Australia: Ryan Carlisle Thomas
Appearing for the Transport
Workers' Union of Australia: J. Shaw QC with M. Carn
Solicitor for the Returning
Officer: Australian Government Solicitor
Appearing for the Returning
Officer: A. Santospirito
JUDGE1
Mr Christopher Keily ("the applicant") has claimed under s. 218 of the Industrial Relations Act 1988 ("the Act") that irregularities have occurred in relation to an election for offices in the Transport Workers' Union of Australia ("the union") and in its Victorian Branch ("the branch"). The irregularities alleged in the applicant's contentions of fact and law were the acceptance by the returning officer of the nominations of the following for the offices set out opposite their names:
"Dennis Elliott Federal Assistant Secretary Don Mauchline Victorian Branch Secretary/Treasurer Wayne Mader Branch Trustee Branch Organiser Darren Crump Branch Vice-President Branch Organiser Alan Kinghi Branch Trustee Noel Bailey Branch Committeeman Ronald Drew Branch Committeeman Brian Goodwin Branch Committeeman Branch Organiser Nathan Niven Branch Committeeman Walter Pegg Branch Committeeman Federal Councillor Mike Fawkner Branch Organiser Chris Fennell Branch Organiser Trevor Goodwin Branch Organiser John Martin Branch Organiser Rupert Peak Branch Committeeman Rodney Grace Branch Committeeman Owen Grace Branch Committeeman"
During the hearing senior counsel for the applicant informed the court that, having considered certain evidentiary material, the applicant did not pursue his claim that the returning officer erred in accepting the nomination of the following:-
Messrs. Noel Bailey, Ronald Drew, Brian Goodwin, Owen Grace, Rodney Grace, Alan Kinghi, Wayne Mader, John Martin, Rupert Peak and Walter Pegg.
There being no evidentiary material before the court to support the allegation that the nomination of any of those ten persons was invalid or that any other irregularity occurred in relation to those nominations, the court determines that the irregularities alleged in the application in relation to those ten persons did not happen.
The seven persons whose nominations remained under challenge in this inquiry were those of Messrs. Dennis Elliott, Don Mauchline, Darren Crump, Nathan Niven, Mike Fawkner, Chris Fennell and Trevor Goodwin. It is convenient to refer to those persons (other than Messrs. Elliott and Mauchline, each of whom was separately represented) as "the respondents". The union was represented in the inquiry by senior counsel. The Australian Electoral Commission and the returning officer, Mr Nellor, informed the court at an interlocutory hearing that they did not wish to make any submissions at the inquiry.
The following paragraphs from the applicant's contentions of fact and law were admitted by the respondents and by Mr Mauchline:
"1. The Applicant is a member of the Transport Workers' Union of Australia ("the organisation"), an organisation of employees registered under the Industrial Relations Act 1988 ("the Act").
2. (a) Pursuant to the rules of the organisation and in particular rules 23 and 33 thereof, elections are required to be conducted triennially in respect of the federal offices of federal secretary and federal assistant secretary and branch offices respectively.
(b) Such a triennial election in respect of the federal offices referred to in paragraph (a) is required by rule 23(I) to commence in 1991 with the opening date for lodging nominations being the second Tuesday in November and the closing date, the last Tuesday in November: rule 23(I)(c). Any ballot required to be conducted is to open on the 11th February and to close on the 3rd March: rule 23(I)(e)(ii).
(c) Such triennial election in respect of branch offices including offices within the Victorian Branch ("the branch") is required by rule 33(a) to commence in 1991 with the opening date for lodging nominations being the second Tuesday in November and the closing date the last Tuesday in November: rule 33(e). Any ballot required to be conducted is to open on the 11th February and to close on 3rd March: rule 33(g).
3. (a) Pursuant to s. 210 of the Act, the Australian Electoral Commission was responsible for the conduct of the election referred to in paragraph 2.
....
(c) On 28th October, 1991 Mr Nellor was appointed as Returning Officer in respect of the conduct of the election for offices within the branch.
(d) On or before 4th November, 1991 Mr Nellor set the following dates for the various steps in the conduct of these elections: Nominations open - 13th November, 1991 Nominations close - 26th November, 1991 Ballot open - 11th February, 1992 Ballot close - 3rd March, 1992 ....
21. On or about 3 January, 1992 the Returning Officer accepted the nomination of each of (the 17 candidates listed earlier in these reasons, including the seven whose nominations remain under challenge) for the offices set out opposite their names.
22. On 27 September, 1989 the Australian Electoral Commission by notice in writing signed by Ronald A. Cook declared the results of an election conducted by it for offices within the branch. That declaration included Don Mauchline as Branch Organiser and Darren Crump as Branch Committeeman.
23. On 28 November, 1989 the branch committee of management by resolution appointed Darren Crump to the office of branch organiser."
Each of the respondents admitted the contention by the applicant that his nomination form stated his occupation and place of employment.
The applicant's senior counsel sought to rely upon the following passage, dealing with the same rule 22, from the reasons for judgment of French J. in Re Election for office in Transport Workers Union, W.A Branch (judgment delivered 12 February, 1992 - p 19):-
"The evident purpose of r.22 is to limit access to elective Union office to those who are currently, actively engaged in the transport industry."
However, in my opinion, his Honour did not accept that possible view, which he referred to as "a narrow construction". Reference should be made to the passage immediately following the words quoted above, where French J. said (p. 19-20):
"There may be a question whether it applies to those who have a continuing history of involvement in the industry, but are between jobs and looking for work in the industry at the time they nominate. A construction of the rule to exclude from candidacy such persons or those who continue to make their living as casual employees in the industry but do not have a job on nomination day would be unfortunate and the applicants did not contend that it should be so construed. But the choice of language in the rule is such that it is capable of a narrow construction which imposes as a condition of eligibility the requirement that a nominee for a union office be working under a contract of employment on the day of the nomination. A broader construction would treat the words "employed in the industry" as meaning engaged in or occupied in the industry in a sense which covers a person who has worked in the industry and continues to seek work in it.
Nevertheless the wider view is consistent with that preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not "subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers" - R. v. Holmes; Ex parte Public Service Association (NSW)
(1977) 140 CLR 63 at 73 (Gibbs J.); Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 at 502 (Lockhart J.)."
I agree with the "broader construction" to which his Honour referred.
Senior counsel for the applicant argued for a construction of rule 22, which does not appear to have been previously considered by the court. The relevant part of rule 22 reads as follows:-
"22 - Eligibility to nominate for and hold office
(a) (I) ... a person shall not be eligible to nominate for any office in the Union or any Branch ... of the Union unless, at the date of close of nominations for election to such office he or she is:-
(i) a financial member of the Union, and
(ii) either is employed in the industry in connexion with which the Union is registered and in respect of such employment is entitled to membership of the Union pursuant to Rule 4, or is a person holding office as ..."
Rule 3, so far as material, provides:-
"3 - Description of industry in connexion with which the Union is registered
In or in connexion with road or aerial transport, ... or driving industries ...
AND the industry of chauffeurs, conductors, and attendants on or about motor vehicles and employees engaged in and about garages, motor stables, and other similar places in the repair and maintenance of motor vehicles or as attendants." (emphasis added)
Rule 4 included the following provisions:-
"4 - Conditions of eligibility for membership
(A)(1) The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:
(a) The transport of persons and/or passengers, and/or goods, ... by or on vehicles ...
(b) All driving; and
(c) Chauffeurs, Conductors, and Attendants on or about motor vehicles, and employees engaged in and about Garage, Motor Stables, and other similar places in the repair and maintenance of motor vehicles, or as attendants.
(A)(2) For the purposes of this rule a person shall be deemed to be employed in one or more of the specified industries, occupations, callings, vocations or industrial pursuits if:
(i) his usual occupation is that of an employee in one or more of the specified industries, occupations, callings, vocations or industrial pursuits" (emphasis added).
The applicant submitted that, on its true construction, rule 22(a)(I) provided that, in order to "be eligible to nominate", a member who is not "holding office" must be "employed in the industry in connexion with which the Union is registered" in addition to being "entitled to membership of the Union pursuant to Rule 4". He submitted that "they are cumulative requirements" and that a person, who is "entitled to membership" under rule 4, is barred from being a candidate unless he is also "employed in the industry" as set out in rule 3.
I have considered carefully the submission advanced by senior counsel for the applicant in support of that construction; read literally the words used in rule 22 could be so construed. I have adopted the "preferred approach to the construction of union rules which requires them to be ... not 'subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers'" per French J., in dealing with rule 22 in the passage quoted earlier in these reasons. Reading rule 22 in the light of the union's rules as a whole, including rule 3, rule 4(A)(1) and rule 4(A)(2), in my opinion rule 22(a)(I)(ii) is not intended to require that a candidate be employed in one of the industries specifically mentioned in rule 3. Rule 22(a)(1)(ii) does not itself refer expressly to rule 3; although its wording may not stand "meticulous scrutiny", in my opinion, it is not intended to qualify the operation of the words "entitled to membership pursuant to Rule 4". The applicant's submission cannot be upheld.
It is clear that, as a result of the amendments to the Commonwealth Conciliation and Arbitration Act 1904, made by Act No. 6 of 1911 and Act No. 35 of 1915, the connexion of an organisation with an industry lost much of the importance apparently attached to it by the 1904 Act. Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. in R v Dunlop Rubber Australia Ltd. and Ors; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 at 85 referred to the fact that:-
"When the Commonwealth Conciliation and Arbitration Act was passed in 1904 an organisation in order to be registered, whether of employers or employees, must have been formed "in or in connexion with any industry" (s. 55 of Act No. 13 of 1904). In spite of a very wide definition of "industry" difficulties arose which led to a new definition of the word "industry" (s. 3 of Act No. 6 of 1911) and ultimately to the inclusion of organisations consisting of employees engaged in any industrial pursuit or pursuits whatever (s. 2 of Act No. 35 of 1915). Moreover "industry" thus came to include a group of industries. It is evident that the connexion of an association with an industry, where it was so formed, then lost much of the importance which it may be assumed the framers of the statute originally meant that it should possess."
Their Honours also observed (at 86) that:-
"Until SR No. 81 of 1928, reg. 6(I), there was no need for an organisation to state in its rules the industry in connexion with which it was registered. It may be noticed that s. 55(4), introduced by Act No. 18 of 1928, did not require old organisations to reshape their rules to comply with more than the schedule (whether as enacted or as replaced by regulations). It does not seem possible to treat the conditions of eligibility as void on the ground that they went beyond the true description of the industry in or in connexion with which the organisation had originally been registered. Nor does it seem to matter that the certificate of registration issued by the registrar states what that industry is. Apparently it was only after SR 1956 No. 60, reg. 125 and form No. 32, came into operation that such a statement was required in the certificate."
It should be added that, if the applicant's construction of rule 22 were correct, and financial members who wished to be candidates were required to bring themselves within rule 3, as well as within rule 4, it may well be that rule 22 would contravene s. 196(c) of the Act, as imposing on "members ... restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust" i.e. that a rule imposes "restrictions that ... are unreasonable" if it prevents members, who are "entitled to membership" under rule 4, from standing for office because they are not "employed in the industries set out in rule 3".
An organisation which has obtained registration under the Act "in or in connexion with" one or more industries may validly enlarge "its conditions of eligibility beyond that industry (and enrol) members employed outside that industry ..." R v Dunlop Rubber Australia Ltd. (supra, at 86). Although there is no evidence on the matter, it is possible that the Transport Workers' Union has validly enrolled as members under rule 4, a substantial number of persons who are employed outside the "industries" referred to in rule 3. If, as the applicant contends, rule 22 operates so as to make all of those persons, being financial members of the union, ineligible to nominate for any office (unless they were already "holding office"), it might well be held to contravene s. 196(c) of the Act if a member of the union applied for an order under s. 208 of the Act. Any such application would doubtless be supported by evidence as to "the operation of the rules ... in the context of the organisational structure of (the union and) the branch in its setting in the federal organization and the characteristics of the membership" - per Smithers J. in Leveridge and Others v Shop Distributive and Allied Employees' Association and Others (1977) 31 FLR 385 at 394. Such a proceeding would doubtless result in the court hearing more detailed evidence as to the nature of the work and also more extensive argument as to the construction of rule 3 than it has had in this inquiry e.g. submissions as to the meaning of "driving industries". In these reasons it has not been necessary for the court to form any concluded opinion as to the construction of rule 3.
Messrs Crump and FawknerThe applicant contended (par 24) that on 28 November 1989, Mr Crump "had not been a financial member continuously for the previous three years and was not eligible to hold the office of branch organiser pursuant to rule 22(b)", to which office he had been appointed on that date. He also contended (par 26A) that, "at the date of closing of nominations (26 November 1991) Mr Crump had not been a financial member continuously for the previous three years and was not eligible to hold the office of organiser ...". During the hearing counsel for Mr Crump conceded (transcript p. 321 and 323) that he was not eligible to nominate for the position of Branch organiser. In the light of that concession and the evidence, the court finds that an irregularity occurred in that the returning officer accepted Mr Crump's nomination for the office of Branch organiser (see rule 22(a)(I)(ii)).
The applicant's amended contentions of fact and law did not in terms challenge the validity of Mr Crump's nomination for the office of Branch Vice-President. However, the validity of that nomination was challenged by senior counsel for the applicant in his final address (transcript p. 325) on the basis that "he was not employed in the industry, and nor was he seeking employment in the industry".
Having considered the evidence in the light of the submissions by the applicant's counsel, I have come to the conclusion that Mr Crump was seeking employment in the industry at the date of close of nominations for the election. Accordingly, the irregularity claimed in respect of Mr Crump's nomination for the office of Branch Vice-President did not happen.
The applicant contended (par 34A) that Mr Fawkner, similarly lacked continuous financial membership for the three years preceding the close of nominations. The applicant called evidence from Mr Handley, a field officer of the branch, on this issue. In an affidavit he deposed that:
"I also checked the records held in the Victorian Branch of the TWU of membership contributions made by Mike Fawkner. Those records disclose that payments were made on 14 March 1990, 28 March 1990 and 27 February, 1991. Now produced and shown to me and marked "RKH1" is a true copy of a computer printout of the said records setting out the history of the payments of contributions to the union by Mike Fawkner since 1988."
It was not true to say that those records disclosed the dates of payments by Mr Fawkner. The computer records of the branch were quite misleading. During the hearing it became quite clear that the computer records did not record the date of the payments made by or on behalf of Mr Fawkner to Mr Palmer, the union delegate and senior counsel for the applicant rightly conceded that payment to the delegate constituted payment to the union.
However, the applicant's senior counsel in final address attempted to defend the branch's computer records, saying (transcript p 426) that:
"What Mr Handley has exhibited is the records of the member's financial status in the records of the union. Would your Honour turn exhibit RKH1.
....
Your Honour will see this is the record for Mr Fawkner himself and it shows the amount owing at the time of the record and receipts and the date of the receipt. Now, this is the evidence of when the money was received with respect to Mr Fawkner."
I am unable to accept those submissions. On the evidence before the court the records are not "records of the member's financial status" and they do not show "the amount owing at the time of the record and the date of the receipt". If the computer records purport to state those facts then they state what is false because they record the date of payment into the branch office by the delegate - which may be a considerable time after payment by the member. This is a totally unsatisfactory state of affairs which must be altered immediately and, as far as possible, those existing records which are false must be corrected. If they are not corrected then the next election may proceed on the false basis that members are unfinancial; that false basis may result in some members being wrongly deprived of a right to be nominated as candidates and in other members being deprived of the right to vote.
I reject each of the following submissions put in final address by the applicant's senior counsel that:
(1) "they are records from which you can conclude whether the member is financial at any particular time" (transcript p 436). No such conclusion can be legitimately drawn.
(2) "Now that is on the face of it evidence that moneys were not received on his account until after 28 February" (transcript p 437). It is not evidence and if it were it would be false.
(3) "They are the union's prima facie record of the member's standing" (transcript p 437). They are not a prima facie record. They are false if they purport to be that.
The remaining issue then was as to the date upon which an amount of $9 was paid by Mr Fawkner to Mr Palmer. I accept Mr Fawkner's evidence that that amount was paid no later than 28 February 1990 notwithstanding the contrary evidence of Mr Palmer and the criticism of Mr. Fawkner's evidence by the applicant's counsel.
The applicant also contended (par 34) that at that date Mr Fawkner "was not employed in the industry ... as specified in rule 22(a)(I)(ii). There was no substance in this contention and it is rejected.
Messrs. T. Goodwin, Niven and FennellAs to Messrs Trevor Goodwin, Niven and Fennell, the applicant submitted (pars 36, 32 and 35 respectively) that, at the closing date for lodging nominations, 26 November 1991, each was not "employed in the industry in connexion with which the Union is registered as specified in rule 22(a)(I)(ii)".
On the evidence I find that Mr Trevor Goodwin's usual occupation, before going overseas, was that of a driver employed in the transport industry by Comet Transport; in December 1990 he left that employer to take a holiday, making it clear to his employer that he wished to resume that employment as a driver on his return; he was told that he "would have to come back and start over again".
After his return to Australia he was unable to obtain re-employment by Comet Transport or employment elsewhere in the transport industry, despite seeking such employment and registering with the Commonwealth Employment Service. He deposed that he was currently receiving unemployment benefits.
In my opinion, on the evidence Mr Goodwin was "seeking to be employed in ... the industry" (rule 4(A)(1)); further, he retained his "usual occupation" after leaving his employment with Comet Transport in the circumstances outlined i.e. that he wished to resume employment with the employer on his return to Australia and communicated that "wish" to his employer. I have reached that conclusion notwithstanding his employer's statement to him that he would have to start over again and notwithstanding his failure to obtain work in the transport industry.
Mr Niven had been employed by Jetspress Air Couriers, a subsidiary of Mayne Nickless for about two and a half years as a driver, working at least four hours per day, on five days per week; at times he took time off work, without pay, for holidays or at the Christmas period or to do his university examinations (transcript p 123). In mid-September 1991 he told his employer that he wanted to be off work until late November 1991 to enable him to work in preparation for the branch election. The employer's Operations Manager (Mr. Dignan) gave evidence that he told Mr Niven "When that is finished, come back and see me and if I have got a job available for you I'll put you back on" (transcript p 119).
When Mr Niven contacted Mr Dignan, which, on the probabilities, occurred in mid October 1991, there was no work available, following a merger between Jetspress Air Couriers and Wards Express. After hearing of that merger, Mr Niven "went very quickly down to the office of Wards in North Melbourne" for employment. He "filled out an application form for employment which covered all three depots" (transcript p 202). He deposed that he understood that he was "first on the list to be employed" at a proposed new depot for Wards; further, that he had "also unsuccessfully sought and (is) still seeking employment as a driver elsewhere including at DHL, Ansett Air and Cleland Cold Storage".
For similar reasons to those given in respect of Mr Trevor Goodwin, in my opinion Mr Niven's "usual occupation" at 26 November 1991 was that of a driver and he was also "seeking to be employed in ... the industry" (rule 4(A)(1)).
Mr Fennell was employed as a driver by Strang Tradex from 2 May 1975 until 31 August 1991, when the employer closed down its vehicle fleet and terminated his employment. He was paid an amount which represented "14 1/2 weeks' pay for accrued long service leave, a further one month's pay in lieu of notice and 10 weeks' pay in lieu of untaken annual leave".
Shortly after his termination he registered with the Commonwealth Employment Service where he was told that "it would be very difficult to get a job". He applied for unemployment benefits. He had to fill out 4 or 5 forms and stated to the CES that he "was trying to get back into the transport industry" (transcript p 160). He got a forklift licence in October 1991 to give him "a wider range of jobs available". At Strang Tradex he had done a "forklift driving job ... to load and unload trucks" (transcript p 162) but had not been able to obtain any of that work since. He said "all the forklift drivers that I am in contact with all work at transport companies, and all they do is load and unload vehicles". Since his termination he has "looked for work in the transport industry without success ... regularly attended the CES ... checked the employment section of the newspaper and made direct approaches to some trucking companies. On average ... I have applied for about 2 jobs a week since 21 August 1991 ... I presently remain unemployed and am still seeking work as a driver".
On the evidence, in my opinion Mr Fennell's usual occupation at 26 November 1991 was that of a driver and he was also seeking to be employed in the industry (rule 4(A)(1)).
In my opinion each of Messrs Trevor Goodwin, Niven and Fennell was "employed in the industry within the meaning of rule 22." The court determines that the irregularities alleged in the application in relation to those three persons did not happen.
Messrs. Elliott and MauchlineThe applicant advanced the following contentions in respect of both Mr Elliott and Mr Mauchline:
(a) Rule 24(d) of the organisation invests power in Federal Committee of Management to appoint (or dismiss) an organiser to assist in the work of the union under the direction of the Federal Secretary.
(b) The Federal Committee of Management has never passed a resolution appointing Mr Elliott or Mr Mauchline to the office of organiser.
(c) The Federal Committee of Management has no power under the rules of the organisation to delegate to the Federal Secretary its power under rule 24(d) to appoint an organiser to assist in the work of the union, and the purported delegation by the said resolution of 5 February 1990, to the Federal Secretary of the power to appoint an organiser to assist in the work of the Federal Council was a nullity.
(d) The Federal Secretary has no power under the rules of the organisation to appoint an organiser to assist in the work of the union.
(e) Any purported appointment of Messrs Elliott and Mauchline to the offices of organiser by the Federal Secretary was a nullity as being beyond power and in breach of the rules of the union.
(f) At the closing date for lodging nominations Messrs Elliott and Mauchline were not employed in the industry in connection with which the union is registered and were not the holders of any office specified in rule 22(a)(I)(ii).
(It may be said immediately that Mr Mauchline did not contend that he was so employed.)
The applicant advanced one additional contention as to Mr Elliott:
(g) If (contrary to his earlier contention) the Federal Committee of Management properly delegated to the Federal Secretary its power to appoint Dennis Elliott and if rule 22 (a)(II)(ii) on its proper construction prescribed qualifications to be appointed to the office of organiser then Mr Elliott was ineligible to be
(validly) appointed to the office of organiser as at the date of his appointment to the office of organiser he was neither employed in the industry nor the holder of an office as specified in rule 22(a)(II)(ii).
On 6 February, 1990 the Federal Committee of Management of the union passed three resolutions in the following terms:-
(1) "That having regard to the increased work load in the Federal Office, the Federal Secretary is authorised to appoint one additional person either Industrial Relations Officer or Organiser (preferably an Organiser) to be employed at the Federal Office Melbourne to assist in the work of the Federal Council."
(2) "That the Secretary be authorised to give leave of absence without pay to Dennis Elliott for a period not exceeding one month for the purpose of getting practical experience of the industry as it currently operates. There shall not be any loss of accrued benefits or continuity of service."
(3) "That the Federal Secretary be authorised to appoint Dennis Elliott as Federal Organiser at an appropriate time as determined by the Federal Secretary."
Rule 5 of the rules of the union, which is entitled "Government", deals with the government of the union by the Federal Council. The "supreme control" of the union is vested in the Federal Council and the importance of the role of the Council is emphasised by the fact that at least one-third of the rules specify powers and duties of the Federal Council - see rules 2(a), 5, 19, 20, 23I(a), 23A(1), 23B, 23C, 24(b), 25, 31(b), 38(c), 40(a), 41, 45, 50, 52, 54, 56, 58, 59(a) and (g) and 62.
The power to appoint and dismiss a Federal organiser is expressly conferred upon both the Federal Council and the Federal Committee of Management of the union. As to the Federal Council rule 5 contains the following provision:
"5 - Government
A. Federal Council
....
(d) The functions of the Federal Council shall, without limiting its powers to exercise supreme control of the Union, include disbursement of the funds of the Union to effectuate the object prescribed in Rule 2, clause (m), and the making of Rules, determining amendments of Rules, interpreting Rules subject of disputation, administering the Rules for the general benefit of members, resolving or causing to be resolved all matters submitted to it by Branches and endeavour to give effect to the objects of the Union and the appointment (and dismissal) of an organiser or organisers to assist in the work of the Union under the direction of the Federal Secretary." (emphasis added)
It may be noted that rule 5 does not confer any powers upon the Federal Committee of Management, although it prescribes the constitution of that Committee as follows:-
"(f) The Federal Committee of Management shall consist of:
(i) The Federal Secretary;
(ii) The Federal Assistant Secretary;
(iii) The Federal President and the Federal Vice-President elected pursuant to clause (e) hereof;
(iv) Each Branch Secretary/Treasurer, if not already a member of the Federal Committee of Management by virtue of being elected to the offices of Federal President and Federal Vice-President."
Although rule 5 has a sub-heading "B. Federal Committee of Management", the following sub-rules deal primarily with the powers of the Federal Council. They include:-
"(g) For the purpose of assisting the Federal Council to control and manage the Union and subject to (i) hereof a Branch may be constituted in each State and Territory ....
(h) Any Branch which fails to observe any Rule, or give effect to any decision of the Federal Council, shall cease to have representation on the Federal Council until such Rule is observed or such decision is given effect to or a satisfactory explanation has been accepted by resolution of the Federal Council.
(i) The Federal Council is empowered to disband a Branch which fails to observe any of the Rules of the Union or fails to give effect to any decision of the Federal Council ...
....
(k) Notwithstanding the provisions of Sub-Rule (i) hereof or anything to the contrary elsewhere in the Rules, in the event of the exercise of the power to disband a Branch pursuant to the said Sub-Rule (i), the Federal Council may determine not to reconstitute the disbanded Branch .... Federal Council shall make all such consequential decisions as are necessary."
The power to appoint a Federal organiser is conferred upon the Federal Committee of Management by rule 24(d) but any determination made by that Committee (on that subject or on any other) can be quashed or amended by resolution of the Federal Council at its next meeting after the relevant meeting of the Committee. The Federal Committee of Management is expressly "not invested" with certain powers (rule 24(c)) and the Federal Council hears appeals from any expulsion of a member by the Federal Committee of Management (rule 58(f)). Under rule 59(a) the Federal Council is empowered to fix "salaries ... paid to a person holding an office or otherwise employed ... by the Union at its registered (federal) office".
It is clear that the Federal Committee of Management is subordinate to the Federal Council. It is desirable to set out in full the rule as to the powers of that Committee:-
"24 - Federal Committee of Management Powers
(a) When the Federal Council is not assembled in meeting and subject to other Rules and the provisions set out in paragraphs (b) and (c) herein the Federal Committee of Management be and is hereby invested with executive powers for the purpose of determining any matter affecting the interests of the Union or its members or any business submitted to it (through the office of the Federal Secretary) in writing by a Branch.
(b) The Federal Council may by resolution duly carried quash or amend any determination made by the federal committee of Management provided the Federal Council shall so act at its next meeting which succeeds the meeting or meetings (as the case may be) of the Federal Committee of Management so concerned and not otherwise.
(c) Without limiting the generality of the foregoing the Federal Committee of Management is not invested with power for the following purposes:-
(i) to amend, alter or delete any Rule or Rules or determine any new Rule or interpret the meaning of Rules except for the purpose and to the extent provided in Rule 56 (f);
(ii) to amend, alter or rescind any decision of the Federal Council or otherwise act contrary to an expressed intention of the Federal Council;
(iii) to dismiss or suspend from office any person elected by the rank and file membership or the Federal Council to the office concerned;
(iv) to elect or appoint any person to an office being an office within the meaning of the Industrial Relations Act 1988.
(d) without limiting the generality of the foregoing, the Federal Committee of Management is invested with power to appoint (and dismiss) an organiser or organisers to assist in the work of the Union under the direction of the Federal Secretary."
It was submitted by the union and by Messrs Elliott and Mauchline that the purported appointments of Messrs Elliott and Mauchline as Federal organisers "were in substance, decisions of the Federal Committee of Management and therefore beyond attack". On the evidence, including the terms of the resolutions, the court is unable to uphold that submission.
Alternatively it was submitted that "any element or component of delegation to the Federal Secretary was in all the circumstances, permissible and valid". In my opinion the Federal Committee of Management did not have the power to delegate any of the relevant powers to the Federal Secretary. In reaching that conclusion I have taken into account the very detailed provisions in the rules, including those referred to earlier in these reasons. In my opinion it would be inconsistent with the rules as a whole to hold that the rules impliedly permitted the Federal Committee of Management to delegate to the Federal Secretary the power to appoint a Federal organiser.
In this connexion it may be noted that the powers expressly conferred upon the Federal Secretary are set out quite specifically and do not include any broad executive or administrative power. His duties and powers are set out in rule 27, which provides as follows:-
"27 - Federal Secretary
(a) The Federal Secretary shall -
(i) Attend all meetings of the Federal Council or Federal Committee of Management.
(ii) Keep a debit and credit account between each Branch and Federal Council.
(iii) Answer and file correspondence.
(iv) Keep minutes of all resolutions passed or other business transacted by the Federal Council or Federal Committee of Management.
(v) Summon all meetings of the Federal Council or Federal Committee of Management and give intimation thereof to all Branches.
(vi) Require the Auditor to prepare a statement of Receipts and Expenditure for the previous year and on receipt of such statement forward same to Councillors during the month of March. The Federal Secretary shall draw up a report on any matter or supply a statement of Receipts and Expenditure when directed by the Committee of Management. He shall submit his books and accounts to the Auditor.
(vii) Issue receipts for all moneys received by him on behalf of the Federal Council, and deposit such moneys in the bank to the credit of Transport Workers' Union of Australia within forty-eight hours of their receipt.
(viii) Forward to each Branch in the month of March each year a statement of Receipts and Expenditure together with a statement of Assets and Liabilities, duly audited, in connexion with the Union for the year ended the December 31 preceding.
(ix) Procure, on behalf of the Union as soon as available, copies of all awards and industrial agreements. A copy of the awards and industrial agreements kept in accordance with the preceding paragraph shall be forwarded to any Branch on request.
(b) ....
(c) The Federal Secretary shall not have authority to spend an amount of more than two hundred and eighty dollars ($280.00) in any one week without the endorsement of not less than two of the following: Federal President, Federal Vice-President, Federal Assistant Secretary and/or Federal Trustees, and/or Federal Committee of Management or Federal Council. This shall not apply to ordinary expenditure such as wages, transcript or matters appertaining to Court proceedings."
The terms of the union's rules are of fundamental importance. The Act requires that, as a registered organisation, the union's rules "shall provide for: (i) the powers and duties of the committees of the organisation ... and the powers and duties of holders of offices in the organisation ..." (s. 195(1)(b)(i)).
In my opinion the rules did not permit the Federal Committee of Management to delegate to the Federal Secretary its power to appoint a Federal organiser.
Senior counsel for the union argued that the Federal Committee of Management "could delegate the power to appoint office staff" and that "it would be ludicrous to expect the Federal Committee of Management to be engaging the receptionist and the typist". Three comments may be made as to that submission. First, the holding of the office of Federal organiser is entirely different from being employed as a member of clerical staff. In particular, an appointment to that office enables the member, by virtue of holding the office, to fulfil one of the requirements for him to "be eligible to nominate for any office" under rule 22(a)(I)(ii). Second, it may be - although I express no opinion on the question - that the Federal Committee of Management could authorise the Federal Secretary to engage some clerical staff. Third, as was conceded by senior counsel, the appointment of the two federal organisers could have been made by having the necessary administrative work performed in advance by the Federal Secretary and the appointment then being made by resolution of the Federal Committee of Management. Fourth, the rules contain detailed provisions for situations where there are difficulties in the holding of a meeting. Rule 50(i) provides that "when it is impracticable to convene a meeting of the Federal Committee of Management ... the Federal Secretary may obtain by correspondence the decision of the ... Federal Committee of Management". There is also provision for the calling of special meetings of the Federal Committee of Management "to deal with matters of an urgent nature"; provided that where a matter requires urgent attention special meetings may be conducted by telephone, radio or any other method ... without (members) being physically present" (rule 43(e)).
It was also argued by the union in its written submission "that in any event, the appointments have been 'ratified' by the organisation, both by conduct (knowing acceptance of the appointments) and by express resolution". A resolution of the Federal Committee of Management of the union, carried on 25 March 1992 (exhibit S1), included the following:
"This Federal Committee of Management of the Transport Workers' Union of Australia: .... To the extent that this is necessary as a matter of law ratifies, endorses and authorises the appointments as organiser of Messrs Elliott and Mauchline with retrospective effect (from 12 March 1990 and April 1990 respectively)".
The court has heard submissions at some length, including the citation of decided cases, both for and against the proposition that the Federal Committee of Management ratified the appointments as organisers. I consider that the decision of Ryan J. in Application by C.E. Butcher re Election in AWU (WA Branch) (unreported - delivered 11 December, 1990) is distinguishable because of differences in the relevant rules and the evidence in that case. In my opinion the Federal Committee of Management had no power to ratify the appointments. No such power is expressly conferred by the union's certified rules. In my opinion, no such power is conferred by implication when regard is had to (a) the rules as a whole, including those quoted earlier in these reasons, (b) s. 195(1)(b)(i) of the Act and (c) the role of the union as an organisation registered under the Act.
It follows that neither Mr Elliott nor Mr Mauchline was validly appointed as a Federal organiser. As it was not contended by Mr Mauchline that he was "employed in the industry" at the relevant time, it follows that an irregularity occurred in that the returning officer accepted his nomination.
Mr Elliott, however contended that he was employed in the industry at the time of his appointment as a Federal organiser in February or March 1990 and accordingly that that appointment was valid. Assuming, but without deciding, that at the time of that appointment Mr Elliott was "employed in the industry", that appointment as a Federal organiser was itself invalid for the reasons already given. It follows that at the close of nominations on 26 November, 1991 Mr Elliott was neither the holder of an office nor employed in the industry within the meaning of rule 22(a)(II)(ii). Accordingly an irregularity occurred in that the returning officer accepted his nomination.
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