In the matter of an application by Janet Irene Lacey for an inquiry into an electyion in the Federated Clerks Union of Australia, Victorian Branch

[1984] FCA 157

Re: IN THE MATTER OF AN APPLICATION BY JANET IRENE LACEY FOR AN INQUIRY INTO
AN ELECTION IN THE FEDERATED CLERKS' UNION OF AUSTRALIA, VICTORIAN BRANCH
No. V23 of 1984
Industrial law
7 IR 418

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial law - election inquiry - rejection of nomination - construction of rule relating to eligibility to nominate - history of certified rule - relevance of uncertified amendment and of Industrial Registrar's suggested alteration to wording.

HEARING

MELBOURNE

#DATE 8:6:1984

JUDGE1

This is an application under s.159 of the Conciliation and Arbitration Act 1904 (the Act) for an inquiry by the Court into an alleged irregularity in or in connection with an election for certain offices in the Victorian Branch (the Branch) of the Federated Clerks' Union of Australia, which is an organization of employees registered under the Act. The "offices" referred to are described in the application as those of "Councillors elected from the Sections". The application, dated 11 April, 1984, has been referred to the Court by the Industrial Registrar under s.159(4) of the Act.

The returning officer, Mr. Gary Hall, an officer of the Australian Electoral Office, who was conducting the election pursuant to s.170 of the Act, decided that the period for nominations for the election should open on 5 March, 1984 and close on 19 March, 1984. On that latter date Janet Irene Lacey (the applicant) was a financial member of the union having paid her contributions on an annual basis in respect of the year ending 30 June, 1984. Her application for admission to membership was dated 24 March, 1983. On 16 March, 1984 she lodged with the returning officer a nomination form for the office of Councillor from the Miscellaneous Section of the Branch, to which Section she was attached. The returning officer by telegram sent on 23 March, 1984 rejected her nomination, saying that she had "not been a financial member for the period of twelve months immediately prior to the close of nominations. Rule 28 applies.".

Mr. Marshall appeared for the applicant, Mr. Turner for the returning officer and Mr. Macken for the Federated Clerks' Union of Australia and for the officers of the Branch.

The irregularity specified in the application is that her nomination should not have been rejected by the returning officer and two grounds were advanced in support of that contention. The parties were agreed that the Court should first hear and determine evidence and argument as to the first ground as no further hearing would be necessary if the applicant succeeded on that ground. In essence, the first ground was that rule 28(c) of the certified rules of the Branch, properly construed, provided no basis for the rejection of the applicant's nomination.

Rule 28 of the certified Branch rules provides as follows:

"28. Election of Branch Officers

(a) Using the election of April 1979 as the starting point, an election shall be held in every third year for the purpose of electing the following office holders:

1. President,
2. Deputy President,
3. Vice-President,
4. State Secretary,
5. Assistant State Secretary,
6. Councillors required to be elected by the whole of the membership.

(b) Commencing in March 1978, an election shall be held in every second year for the purpose of electing Councillors from Sections, and Conference delegates from Districts and Sections, excluding the Shipping Section. Elections for Councillors and Conference delegates from the Shipping Section shall be held annually.

(c) Any member of the Branch except, in the case of Councillors and Conference Delegates from the Sections and Districts, shall be eligible for nomination for election to any of the above positions if such member is financial at the date of closing of nominations and for the period of 12 months immediately prior to such date has been continuously a financial member."

It can fairly be said that the exception clause in rule 28(c) is not expressed as clearly as it might be. All parties accept, correctly in my view, that the comma in the first line of the sub-rule is misplaced and that it is necessary to read the sub-rule as if the words "elections for" were inserted immediately before the words "Councillors and Conference Delegates".

Reading sub-rule 28(c) in the light of those two matters accepted by all parties, the applicant submitted that the sub-rule on its face plainly excepts from its operation elections for "Councillors and Conference Delegates from the Sections and Districts"; in other words, the sub-rule makes no provision whatever in respect of the election of those "Councillors and Conference Delegates". On this submission, the requirement in the sub-rule that a member must be "financial at the date of close of nominations and for the period of 12 months immediately prior to such date" have been continuously a financial member, applies only to eligibility for nomination for elections other than those for "Councillors and Conference Delegates from the Sections and Districts".

Mr. Turner, in supporting the rejection of the applicant's nomination by the returning officer, submitted that sub-rule 28(c) should be construed as if it provided that "any member of the Branch shall be eligible for nomination for election to any of the above positions, except the positions of Councillors and Conference Delegates from the Sections and Districts and in those cases only members from those Sections or Districts may be nominated, if such member is financial at the date of the closing of nominations and for the period of 12 months immediately prior to such date has been continuously a financial member". Mr. Macken's formulation of the meaning of the sub-clause was to the same effect.

It will be noted that the submission involves inserting additional words and re-arranging the words used in the sub-rule to a considerably greater extent than does the construction of the sub-rule for which the applicant contends. Mr. Macken and Mr. Turner both placed considerable reliance upon the context of the Branch rules as a whole and submitted that the returning officer's construction of the sub-rule conformed with the Branch rules generally.

In addition to his submissions as to the proper construction of sub-rule 28(c) in its context, Mr. Macken submitted that that construction of the sub-rule was supported by its history as a certified rule. He also sought to rely upon the form of an alteration to that sub-rule which in November 1978 was submitted to but not certified by the Industrial Registrar in the form submitted. Mr. Marshall denied that there was any ambiguity in the rule but did not object to the affidavit material tendered by Mr. Macken. However, he made it clear that he did not concede its relevance.

The evidence of the history of the certified rules of the Branch established that, as at 6 July, 1978, they contained the following provision:-

"28. Election of Branch Officers

. . .

(b) The Councillors required to be elected by the Sections shall be elected commencing as and from the 1st of March 1978 biennially at the same time and in the same manner as is prescribed in the Section Rules for the election of the Executive of the Section.

. . . "

It is common ground that at that time the "Section Rules" referred to in that sub-rule, which were tendered in evidence, did not form part of the rules of the Branch as certified by the Industrial Registrar. In my opinion evidence of the form of the certified rule in July 1978 does not support the respondents' submissions.

As to the other material submitted by Mr. Macken, it established that on or about 13 November, 1978 the Branch Secretary forwarded to the Industrial Registrar particulars of alterations to the rules of the Branch, including rule 28, which had been adopted by the State Council of the Branch and by the Federal Executive. Those alterations included the substitution of a new rule 28 including sub-rule (c) which was in the following terms:-

"(c) Any member of the Branch or, in the case of Councillors and Conference Delegates from the Sections and Districts, any member of the appropriate Section or District, shall be eligible for nomination for election to any of the above positions if such member is financial at the date of closing of nominations and for the period of 12 months immediately prior to such date has been continuously a financial member."

The minutes of a meeting of State Council on 28 November, 1978 record that the Branch Secretary, Mr. J.D. Cameron, reported that the alterations to the rules had -

"been submitted to the Industrial Registrar, and he now suggests that following alterations to those amendments to comply with the Act -

"Rule 28 - Election of Branch Officers

"(b) Add after 'Sections & Districts' the words 'excluding the shipping Section'.

"(c) Substitute 'except' for 'or' in first line. Delete the words 'any members of the appropriate Sections or District' . ."

At that meeting State Council approved those alterations, suggested by the Industrial Registrar, to the amendments to the branch rules previously submitted to him.

By letter dated 14 February, 1979, the Industrial Registrar informed the Branch Secretary that he had certified alterations to certain rules but had "not certified the other rules" (including Rule 28) for reasons set out by him which are not presently material. The last paragraph of that letter from the Industrial Registrar was in the following terms:-

"Finally, in view of recent decisions by the Federal Court of Australia about certain periods of membership being required as a qualification to become a candidate for an election, this question will need to be examined. A related point is that the word "continously" in the phrase "continuously a financial member" is now unacceptable."

As a result of the certification on 6 March, 1979, of alterations to the Branch rules, rule 28(c) of the Branch rules in its present form became a certified rule. It will be noted that that sub-rule is not in the form originally submitted to the Industrial Registrar on or about 13 November, 1978 as it incorporates the alterations made by the State Council on 28 November, 1978 in accordance with the suggestions made by the Industrial Registrar.

Although material as to the history of the certified rule is admissible where, as here, the meaning is unclear, the material as to the form of the alterations submitted to the Industrial Registrar on or about 13 November, 1978 is in a different category. It does not form part of the history of the rule as certified by the Industrial Registrar. However, I have given consideration to that material as no objection was taken to its reception - possibly because of the provisions of s.164(4) of the Act.

It is clear that, if sub-rule 28(c) had been certified in the form in which it was submitted to the Industrial Registrar on or about 13 November, 1978 and had been in that form at the time when the applicant's nomination was rejected, the returning officer's rejection of the nomination would have been correct as a matter of law. Mr. Macken contends that sub-rule 28(c) in its present form has the same meaning, notwithstanding that it was altered to comply with the Industrial Registrar's suggestion of "the following alterations to those amendments to comply with the Act". He submitted that:-

" . . . it can be said with confidence that the construction of the returning officer expresses or conforms with the intention of the branch as understood from the extrinsic facts which are in evidence before the court . . . What the branch intended to accomplish is known with absolute precision from the terms of (exhibit) MOS2 so far as consisting of the branch's formulation of 1 November 1978 . . . . . what it intended then . . . was perfectly clear and what we draw from that is this: that unless there is some reason to think that something different was intended either by the draughtsman of the alteration, namely, the Industrial Registrar or by the Victorian branch of the Federated Clerks Union which adopted the reformulated rule then by advertence to what was sought to be achieved on 1 November 1978, one is assisted in seeing what was in fact achieved in the adumbrated and less than happy reformulation of that rule, ultimately certified in March of 1979."

It is possible that the State Council in altering sub-rule 28(c) on 28 November, 1978, at the suggestion of the Industrial Registrar, did not intend to alter the meaning and effect - as distinct from the wording - of the sub-rule from the meaning and effect of the sub-rule in the form submitted to the Industrial Registrar on or about 13 November, 1978. Mr. Cameron, the Branch Secretary both in 1978 and at the present time, gave oral evidence which lends some support for that view. Mr. Marshall made it clear that he did not criticize Mr. Cameron's evidence but he pointed out that it related to a meeting of State Council held more than five years ago. In this connection the minutes record that the Industrial Registrar had suggested "the following alterations to those amendments to comply with the Act" and Mr. Cameron frankly admitted that it was quite possible that the Industrial Registrar had said to him that the suggested alteration was required "in order to comply with the Act".

I have considered the form of sub-rule 28(c) as submitted on or about 13 November 1978, together with the material as to the Industrial Registrar's suggested alterations to that sub-rule, the minutes of the State Council meeting of 28 November, 1978 and the oral evidence of Mr. Cameron, including his evidence that the "policy" of the Branch for some years was that there be "a 12 month qualifying period". The material does not persuade me that the alterations made by the State Council at the meeting on 28 November, 1978, were intended to retain the meaning and effect of the sub-rule in the form in which it was originally submitted to him for certification on or about 13 November, 1978. In reaching that conclusion I have assumed that it is permissible to have regard to that material in construing sub-rule 28(c). I have considerable doubts as to whether that course is permissible but, as that question has not been fully argued, I shall not express a concluded opinion upon it.

After considering carefully the wording of rule 28(c) in its present certified form, its context including the rules referred to by Mr. Turner and Mr. Macken, I have decided that the construction advanced by Mr. Marshall on behalf of the applicant is to be accepted and that the applicant was eligible to nominate for the office of Councillor elected from the Miscellaneous Section.

Accordingly, the returning officer erred in rejecting her nomination lodged on 16 March, 1984. That rejection constituted an irregularity in connection with the election. I am of the opinion that, having regard to that irregularity, the result of the election may have been affected by the irregularity (s.165(4)). Accordingly, it is appropriate that orders be made:-

1. Declaring that a step in connection with the election of the office of Councillor from the Miscellaneous Section of the Federated Clerks' Union of Australia, Victorian Branch, namely, the rejection by the returning officer of the nomination of Janet Irene Lacey, is void.

2. Directing the Industrial Registrar to make arrangements for the uncompleted steps in the election to be taken, namely, the conduct of a ballot for the office of Councillor from the Miscellaneous Section of the Federated Clerks' Union of Australia, Victorian Branch in which ballot the candidates are John Michael Cashman and Janet Irene Lacey.