In the Matter of an Application by Prichard, M.A. for an Inquiry into an Election in the South Australian Branch of the Federated Clerks Union of Australia

[1985] FCA 145

35

CATCHWORDS

Industrial law - registered organization - inquiry into election

- withdrawal of moving party - whether filling casual vacancy an "election" - whether candidate validly a member - time at which eligibility for membership determined - whether "employed in a

clerical capacity" - validity of rules for filling casual

vacancies.

Conciliation and Arbitration Act 1904, S . 159, S. 160(l)(a), S .

139(4), S. 133AB, a. 163, S . 165, S . 162A, S . 160(3A), S.

133(l)(a), S . 140(l)(a), S. 132, S . 4(1), S. 140(l)(c).

Conciliation and Arbitration Requlationa, reg. 115.

Prichard V. Krantz Federal Court of Australia, Smithers, Northrop

and Keely JJ., Zlst October 1983, unreported

Troia v. Australasian Meat Industrv Ehplovees' Union (Victorian

Branch) (1978) 46 F.L.R. 340

Re Federated Clerks Union of Australia (1982) 1 I.R. 217

Sims v. Australasian Institute of Marine and Power Enqineers

(1980) Law Book Company Industrial Arbitration Service, Current

Review, page 575

Cameron v. Duncan (1965) 8 F.L.R. 148

Re Federated Clerks Union of Australia, New South Wales Branch,

and Australian Workers' Union C19713 A.R. (N.S.W.) 419

Gordon v. Carroll (1975) 27 F.L.R. 129

C .

( .

- 2 -

IN THE MATTER OF AN APPLICATION BY MICHAEL ANTHONY PRICHARD FOR

AN INQUIRY INTO AN ELECTION IN THE SOUTH AUSTRALIAN BRANCH

OF THE

FEDERATED CLERKS' UNION OF AUSTRALIA.

GRAY J.

2ND APRIL 1984

ADELAIDE.

I "

IN THE FEDERAL COURT OF AUSTRALIA

1

SOUTH AUSTRALIA DISTRICT REGISTRY	)	S.A. No. 22 of 1984
)
INDUSTRIAL DIVISION	)

In the matter of an

Application by MICHAEL

ANTHONY PRICHARD for an

Inquiry into an election

in the South Australian

branch of the FEDERATED

CLERKS' UNION OF AUSTRALIA

ORDER

JUDGE M I N G ORDER:	GRAY J.
DATE OF ORDER:	2ND APRIL 1985
WHERE MADE:	ADELAIDE

THE COURT ORDERS that the inquiry herein be terminated.

. .

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY	)	S.A. No. 22 of 1984
1
INDUSTRIAL DIVISION	)

In the matter of an

Application by MICHAEL

ANTHONY PRICHARD for an

Inquiry into an election in

the South Australian branch

of the FEDERATED CLERKS'

UNION OF AUSTRALIA

JUDGE: GRAY J .

U : ZND APRIL 1985

REASONS FOR JUDGMENT

On 30th August 1974, Michael Anthony Prichard lodged

with the Industrial Registrar pursuant to S . 159 of the

Conciliation and Arbitration Act 1904 ("the Act") an application

for an inquiry into an election. After considering the matter,

the Industrial Registrar referred it to the Court, pursuant to S .

160(l)(a) of the Act. The reference was dated 25th October 1984.

The Applicant is a member of the Federated Clerks Union

of Australia ("the Union"). The inquiry, which is deemed by S .

161 of the Act to have been instituted in the Court, by reason of

the Industrial Registrar's reference, is said to be an inquiry

into an election for the office of Secretary in the South

Australian Branch of the Union ("the Branch").

- 2 -

It is appropriate to set out some of the provisions of

the rules of the Union:

"16.	(k) Vacancies on the Branch Council other than
Councillors elected by Sections shall be filled in accordance with the provisions of rule 30(b).
(1) In relation to any elections for casual
vacancies conducted under rules 24, 25 and clause
(k) of this rule the provisions of this rule in
relation to:
(i) The manner in whlch persons may become

candidates for election.

(ii) The conduct and duties of the Returning

(iii) The conduct of the ballot. Officer .

(iv) The appointment, conduct and duties of

scrutineers to represent the candidates at

the ballot, and

(v) The declaration of the result of the

ballot.

shall be observed.

The conduct of the Election shall be in the hands

of the Returning Officer and the following

provisions shall apply.

(i) The Returning Officer shall call for and receive nominations.

(ii) Any member of the Branch who is qualified

in accordance with Rule 31 (f) hereof may

be nominated as a candidate for election by

submission in writing to the Returning

Officer .

(iii) The Returnincr Officer shall ascertain

whether a candidate nominated consents to

stand. If more than the required number of

candidates are nominated and consent to

stand a ballot shall be held.

The Returning Officer shall then prepare

and forward a ballot paper to each person

entitled to vote. The Returning Officer

shall initial all ballot papers and the seal of the Union shall appear thereon. The ballot papers shall not bear any other

distinguishing mark.

The Returning Officer shall arrange for the

collection and counting of the ballot

papers and declaration of the poll to the

Secretary as soon as completed.

- 3 -

(vi) Each candidate shall be entitled, at his

own expense, to appoint a financial member as scrutineer. The candidate shall supply to the scrutineer a signed authority which

shall be	presented	to	the	Returning
Officer.

(vii) A duly appointed scrutineer shall be

entitled to be present	at any stage of the
ballot.

No scrutineer shall so conduct himself as

to interfere with the Returning Officer in

the pursuance of his duties.

(viii)In countlng the ballot he Returning

Officer shall proceed on the "first past

the post" method, i. e. the candidate

receiving the greatest number of votes

shall be declared elected.

In the event of there being a tie, if a

retiring candidate is in the tie, he shall

be declared elected, otherwise the position

shall be determined by lot.

The Returning Officer shall conduct himself

in an impartial, sober and efficient manner

in the discharge of his duties."

...

"24. (m) Should the office become vacant, the

Council may appoint an Acting-Secretary who

may hold office until the Council shall

make another appointment. An election to

fill the vacancy shall be held at the next

election required by rules 30 and 31."

...

"30.	(a)	Nominations shall be called as follows:-
(i) For President, Deputy President, Vice President and Federal Councillors in

August 1963 and in August of every

second year thereafter.

(ii) For Secretary and Assistant Secretary

in February 1982 and then in August

1985 and August of every fourth year

thereafter.

(b)

The following provisions shall apply to the

filling of casual vacancies in the offices

provided by clause (a) hereof:-

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When a casual vacancy in an office arises within one year of the next closing of nominations for the said

office, the vacancy shall be filled

in the manner provided by rule 16(1).

When a casual vacancy in an office

arises other than as provided hy

paragraph (i) of this sub-clause an

election shall be held in the manner

provided by Rule 31 which shall apply

mutatis mutandis except that the

Council shall instruct the Returning

Officer of the date of closing

nominations.

(iii) An officer elected to fill a casual

vacancy shall hold the office until

his successor is elected in the next

election for that office required by

sub-clause (a) of this rule.”

...

“31.	(a)	(i)	Nominations in writing signed by the
candidate and ndorsed two by
financial members must be in the
hands of the Returning Officer by the third Monday of the month provided
for any election by rule 30.
...

(f) Only financial members who have been

members for at least twelve months at the

date of closing of nominations shall be

eligible	Tor	elrcl i o r l 1 . o	a n y position	or
of rice. ”

It is unnecessary to set out the rest of rule 31, which provides

for a ballot by all financial members of the Branch.

In March 1983 there was filed in the office of the

Industrial Registrar an amendment to rule 16(l)(iv) of the rules,

the effect of which was to delete the first sentence of that

paragraph, and to substitute for it the following:

“The Returning Officer shall then prepare and forward a

ballot paper to each member of the Branch Council.”

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By letter dated 27th April 1983, the Industrial Registrar reiused

to certify, in terms of 6 . 139(4) of the Act, as to this

amendment. By letter dated 15th March 1984, following the coming

into operation of S . 133AB of the Act, the then Secretary of the

Branch made a further request to the Industrial Registrar to

certify this amendment. On 29th June 1984, the Industrial

Registrar certified the amendment, having reconsidered his

earlier decision. From that date, so far as the certified rules

of the Branch are concerned, rule 16(l)(iv) was treated as having

been amended.

At he ordinary election, held pursuant o rule

30(a)(ii) in February 1982, one H.D. Krantz was elected as

Secretary of the Branch. In 1984, Mr. Krantz resigned his

office, his resignation being effective from 21st August 1984.

A meeting of the Branch Council of the Branch on 24th

July 1984 received notice of Mr. Krantz's resignation, considered

the provisions of various rules as to the filling of the vacancy,

and appointed a Returning Officer to conduct an election under

rule 16(1). The Returning Officer was Timothy Lawrence Stanley,

a solicitor whose office was near the Branch office.

On 22nd August 1984, the Branch Council met again and

appointed Ralph Desmond Clarke	as Acting Secretary, pending the
conduct of the election.

By a circular letter dated 22nd August 1984, the

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Returning Officer advised members of the Union in South

Australia of the opening and closing dates for nominations, and of the methods by which nominations could be lodged. The period

for the receipt of nominations ran from 23rd August 1984 untll

12.00 noon on 10th September 1984. Several hundred copies of

this circular were printed and distributed to places of work at

which members of the Union were employed in South Australia. The

circular itself contained a request that it be displayed upon

notice boards or otherwise brought to the notice of members. In

cases where there were office representatives of the Union,

copies of the circular were sent to those representatives; in

other cases, they were simply addressed to members of the Union

at the particular place of work. In addition, an advertisement

in terms similar to the circular was published in the Advertiser,

a daily newspaper published in Adelaide.

Only one nomination, or purported nomination, was

received. This was a document dated 28th August 1984, in which

Mr. Clarke was nominated by a Mr. Haseldine and by Mr. Krantz, the Assistant Secretary and the former Secretary of the Branch.

The Returning Officer checked the membership records of the

Branch to ensure that Messrs. Clarke, Haseldine and Krantz were all financial, and that Mr. Clarke had been a m mber of the Union

for at least one year. Upon satisfying himself of these matters,

on 12th September 1984 he wrote to Mr. Clarke as Acting Secretary

of the Branch, advising him that only one nomination had been

received, and declaring Mr. Clarke elected as Branch Secretary.

On 18th September 1984, the Branch Council met and received and adopted the Returning Officer's report.

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The origlnal application of Mr. Prichard was lodged

before nominations closed. The declaration in support of it was

made on 28th August 1984, the day on which Mr. Clarke's

nomination was dated. Irregularities were alleged in the

following terms:

"1. THAT the South Australian Branch under its

purported rules proposes to fill the purported

Casual Vacancy in the office of State Branch

Secretary by ballot of only 16 members of the State

Branch Council which said ballot and rules

contravene Sections 133AB, 140(l)(a) and 140(l)(c)

of the Act.

2. THAT State Branch rule 16(1) relied upon by the

Committee of Management including rule 24(m) are
contrary to Section 140(l)(a) and 140(l)(c) of the
Act, alternatively, both rules are invalid void and of no legal effect in not being validly altered in 1981.
3.	THAT State Branch rules 16(k), 16(1) and 30(b)
which are to be relied upon, are invalid void and of no legal effect.

4 . IN RESPECT of the nominations to fill the purported vacancy, one R.D. CLARKE has nominated to fill the

position of State Branch Secretary in the said

election which one CLARKE is not lawfully entitled

to be nominated as he is ineligible to be a member

of the Organization.

5. THAT the requirement of 12 months membership for

persons to be eligible to nomlnate at the date of the close of nominations is contrary to Section 140(l)(c) of the Act.

6. THAT the State Branch rules including rule 24(m) do

not provide at all for the filling by ballot of a

casual vacancy in the office of State Branch

Secretary where the term of office is 12 months or

less, contrary to Section 140(l)(a) and 140(l)(c)

of the Act. I'

On 13th November 1984, the matter came before the Court

for directions. Mr. Prichard, who appeared unrepresented,

applied for interim orders pursuant to S. 163 of the Act. The

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orders applied for would, if made, have deprived Mr. Clarke of

the office pending the outcome of this inquiry. The application

for interim orders was dismissed.

On 27th February 1985, the Court embarked on the hearing

of the inquiry. Mr. Prichard, who again appeared without

representation, stated his ntention pursuing f four

irregularities. It is unnecessary for me to summarize these at

this stage; they are dealt with below. In the course of his

examination of Mr. Stanley, the Returning Officer, Mr. Prichard

raised another possible area of irregularity; he then claimed Following the luncheon adjournment, Mr. Prichard announced his withdrawal from the inquiry. He left the Court and has since played no further part in the conduct of the inquiry.

that he wished to rely on this alleged irregularity as well. By

the luncheon adjournment on the first day of the inquiry the

examination of Mr. Stanley by all parties was completed and Mr.

The only other parties to the inquiry were the Union,

for which Dr. Jessup appeared, and Mr. Clarke, Mr. Stanley and the members of the Branch Council, for all of whom Mr. Heywood-Smith appeared. Neither Dr. Jessup nor Mr. Heywood-Smith

was concerned to suggest to the Court that any irregularity had

occurred, although both offered such assistance as they or their

clients were capable of giving, and were very frank with the

Court. The result was that the Court was left to conduct the balance of the inquiry without a moving party.

- 9 -

The withdrawal of a moving party from a court proceeding

normally results in the swift termination of that proceeding.

When the court is conducting a inquiry under part IX of the Act,

however, such swift termination cannot follow. The court is

obliged by S . 165(1) of the Act to "inquire into and determine the question whether any irregularity has occurred in or in

connection with

the concerning the conduct and results of the election election, and such further questions

as the court

thinks necessary." It is obvlous that the Court is not well

equipped to conduct an inquisition of the type contemplated by

this statutory duty without the assistance of one or more parties

having an interest to contend that irregularities have occurred.

The Court does have the benefit of the powers conferred by 0. 48

R. 4A of the Federal Court Rules, which are of undoubted value in

procuring the production of "any document or thing", or the

calling of witnesses which the Court may consider useful. Under

S . 162A of the Act, the Court may authorize the Industrial

Registrar to exercise the powers set out in S . 160(3A), in

relation to ballot papers, envelopes, lists or other documents

relevant to the election concerned. Apart from these powers, the

Court lacks the investigative capacity to discover possible

sources of evidence of irregularities. In circumstances where

the moving party has withdrawn, therefore, the Court is placed in

the difficult position of conducting an inquisition without

having the resources to do so properly. It is obliged to pursue

and to make findings upon possible irregularities, even if those

irregularities could not possibly have affected the result of the

election, either alone, or in conjunction with other

irregularities. Where the election concerned has not been

- 10 -

conducted under S. 170 of the Act, the Court has no power to

terminate an inquiry without performing its duty under S . 165(1),

even though it may become obvious at an early stage that the

result of the election could not have been affected by anything

alleged as an irregularity. Even in the case of officially

conducted elections, S. 159(4)(b) appears only to permit the Court to refuse to proceed with an inquiry if it is satisfied that no reasonable ground for the application exists; the Court

cannot decline to investigate some particular alleged or possible

irregularity, or an irregularity which could not possibly have

affected the result, while some other reasonable ground for the

inquiry remains. There is much to be said for the view that the

Court should have power to refuse to continue investigation of

specific alleged irregularities where such investigation will

obviously lead nowhere, or to	terminate	an	inquiry If its
continuance appears fruitless.

A question arises whether the process of choosing Mr.

Clarke to occupy the office of Branch Secretary constitutes an

"election", within the meaning of that word as it is used in part

IX of the Act. Nowhere in the Act is the word "election"

defined. The process itself involved the calling of nominations

from amongst all financial members of the Branch, but the

electorate was restricted to members of the Branch Council.

Rules providing for such a process as a normal means of choosing the holder of an office would fail to make a provision required by S. 133(l)(a) of the Act. Such rules would not provide for

election to an office either by a direct voting system or by a

collegiate electoral system, as those terms are defined in S .

- 11 -

4(1) of the Act. Section	140(l)(a) of the	Act	would	be
applicable to such rules.

The rules to which the attention of the Court is

directed in this case are not rules of general application to the

process of choosing the holder of any office. They relate only

to the filling of casual vacancies. They may be viewed as no

more than a complex means of enabling the Branch Council to fill

casual vacancies; the calling of nominations is designed to

assist in obtaining the best possible range of candidates, but

the decision as to which candidate to appoint is left to the

Branch Council. If the rules had simply provided that the Branch

Council should appoint a replacement Secretary to fill a casual

vacancy, without any necessity to call nominations, such a

process would not normally have been regarded as an election.

Reference should, however, be made to S . 133AB(4) of the Act,

which now deems a person who fills a casual vacancy in an office

under rules which provide for the filling of such a vacancy to

have been elected to that office; this provision, if nothing

else, would seem to bring into operation part IX of the Act in

relation to such an appointment, even if that part were not

otherwise applicable.	As appears below, S . 133AB, as it stood in
August and September	1984, may not have been applicable to the

relevant rules of the Union or the Branch at all. Even in the

absence of the deeming effect of S. 133AB(4), the rules of the

Union do treat the process by which Mr. Clarke was chosen as an

election; the provisions of the rules to which I have already

referred are capable of being regarded as fulfilling the

requirement of reg. 115(l)(d)(i) of the Concilatlon and

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Arbitration Requlations that the rules of an organization make provision for the election of a committee of management and of officers of the branch. The Industrial Registrar, in considering whether to refer the application of Mr. Prichard to the Court,

came to the conclusion that an election had taken place. For the

purposes of this inquiry,	I am	content to accept that this
conclusion is correct.

I turn now examine to the various alleged

irregularities.

THE ELIGIBILITY OF MR. CLARKE

It was contended by Mr. Prichard that Mr. Clarke was

ineligible to be nominated for the position of Branch Secretary

because he was not eligible to be, and therefore could not be, a

member of the branch. The provisions of rules 16(l)(ii) and rule

31(f) of the rules of the Branch require that a candidate be	a
member of the Branch.

Rule 5 of the rules of the Union provides for the making

of applications for membership in the manner and subject to the

conditions required by the rules of the branch to which it is

made. The rules of the Branch, in Rule 6 , make provision for the

procedure to be followed in making such applications. Mr. Clarke

made an application on the form provided on 25th March 1974; his

application was accepted by the Branch Executive on the same day.

He has not, at any time since, resigned his membership in

accordance with rule 10 of the Union's rules or rule 8 of the

Branch rules, or S. 145 of the Act. Nor has his name been

- 13 -

removed from the register of members under rule 11 of the rules

of the Union or rule 11 of the Branch rules. There is no other

provision in the rules which would cause Mr. Clarke to cease to

be a member of the Union, if ever he validly became a member; in

particular, there is nothing about the rules of the Union or the

Branch rules which requires that a person who ceases to be

employed in an occupation falling within the conditions of

eligibility for membership of the Union automatically ceases to

be a member. This aspect of the rules was the subject of the

judgment of the Full Court of the Federal Court of Australia,

constituted by Smithers, Northrop and Keely SS. in Prichard v.

Krantz (matter S.A. No. 5 of 1983, judgment delivered on 21st

October 1983), and of comment by Northrop J. as a single judge in

Prichard v. Krantz (1983) 6 I.R. 271, at page 273. Mr. Prichard

was the appellant in the first of these cases, and the applicant

in the second. In the first of those cases, the Full Court held

that Mr. Prichard's own entitlement to membership of the Union

depended upon whether his occupation fell within rule 2 of the Rules of the Union at the time when he became a member, and not

upon whether he continued to carry on an occupation falling

within the scope of that rule at all times thereafter.

It is common for organizations not to have rules

providing for the automatic cessation of membership by persons

who cease to be employed in occupations falling within the

conditions of eligibility of those organizations. Reference

should be made to Troia v. Australasian Meat Industrv Emplovees'

Union (Victorian Branch) (1978) 46 F.L.R. 340, especially at

pages 346-348 per Keely S., Re Federated Clerks Union of

- 14 -

Australia (1982) 1 I.R. 217, especially at page 218, Sims v.

Australasian Institute of Marine and Power Ensineers (1980)	Law
Book Company Industrial Arbitration Service, Current Review, at

page 575, and Cameron v. Duncan (1965) 8 F.L.R. 148. In each of

those cases, it was held that members of the organization

concerned were entitled to retain their membership n

circumstances where their occupations had changed, although they

would not have been eligible to join the organization f applying

for the first time. In the present case, the contention was

raised that rules of that kind offend against S. 140(l)(a) of the

Act, in that they are contrary to, or fail to make a provision

required by, S . 132 of the Act or reg. 115 of the Conciliation

and Arbitration Reaulations.	So far as is relevant, S . 132 of
the Act provides as follows:

“132 ( 1) Any of the following associations or persons

may, on compliance with the prescribed conditions, be

registered in the manner prescribed as an organization:

...

(b) any association the members of which include

not less than one hundred employees in or

in

connection with any industry and the other

members, if any, of which are -

(i) officers of the association; or

(ii) persons who are mployees who are

qualified to be mployed in or in

connection with that industry,

but does not include an association that has

members referred to in subparagraph (ii)

unless a ociation the is effectively

representative of the m mbers who are

employees in or in	connection	with	that
industry; and

( c ) any association the members of which include

not less than one hundred employees engaged in

an industrial pursuit or pursuits and the

other members, If any, of which are-

- 15 -

(i) officers of the association; or

(ii) persons who are mployees who are

qualified to be engaged as employees in

that industrial pursuit or in one of

those industrial pursuits,

but does not include an association which has

members referred to in sub-paragraph (ii)

unless the association effectively s

representative of the m mbers who are

employees engaged in that industrial pursuit

or those industrial pursuits.

( 2 ) The conditions complied be to with by

association so applying for egistration and by

organizations shall be as prescribed."

Regulation 115(l)(a) provides:

"(1) The following conditions are prescribed conditions

to be complied with by an association applying for

registration, namely:-

(a)

the association shall be a voluntary and bona section 132 of the Act;"

It will be noted that these provisions are expressed to be

applicable to associations, at the time at which they apply for

and are granted registration under the Act. Once registered,

however, an organization is required by reg. 115(2) to comply

with the same conditions. Mr. Prichard put forward the argument

that an organization is required by reg. 115(l)(a) and ( 2 ) to

remain an association of a kind referred to in S . 132 of the Act;

by continuing to have as its members persons who may have ceased

to be employees, or persons who have become employed in or in

connection with any industry or engaged in any industrial pursuit

other than those in respect of which the organization may have

constitutional coverage, the organization ceases to be an

I

- 16 -

association of a kind referred to in S. 132. If this were a

valid argument, it would be surprising not to find it mentioned

in any of the cases to which I have referred in which It has been

held that membership is not lost automatically by a member

ceasing to fall within the constitution rule of an organization,

unless the rules of that organization specifically provide for

such loss of membership.

The argument overlooks certain obvious matters. To

begin with, S. 132(l)(b)(ii) provides for membership of an

association by persons who are employees who are qualified to be

employed in or in connection with the industry of the

association. Section 132(l)(c)(ii) makes a similar provision

with respect to employees who are qualified to be engaged as

employees in the relevant industrial pursuit. The definition of

"employee" in S. 4(1) specifically includes any person whose

usual occupation is that of employee in any industry. These

provisions make it clear that an organization could retain as

members persons who are qualified to be its members, even if they

have changed their occupations, and even if they have ceased

temporarily to be in employment, provided that they have not

abandoned their status as employees. Further, S . 132(l)(b)(i)

and (c)(i) makes provision for the association to have as its

members its own officers. The term "officer" is not necessarily

to be equated with the holder of an "office" as defined in S.

4(1). In some circumstances, person a employed by an organization to perform its administrative or executive functions

may be an officer within the meaning of that word as used in S.

132. See Grove v. Riqbv (1971) 19 F.L.R. 160, at pages 164-5 per

- 17 -

Joske J.

Given the broadening effect of the provisions of S . 132

to which I have referred, it is difficult to see	how the rules
the subject of this matter, which have the effect	of preserving

the membership of a person who ceases to fall within the

conditions of eligibility for membership, could be said to offend

against S . 140(l)(a) of the Act, by reason of their lack of

conformity with S . 132 of the Act. Having regard to the

authorities which exist on rules of that kind, and to the facts

of this particular matter, I am prepared to hold that the rules

of the Union are not in contravention of S . 140(l)(a). Complete

argument on that subject has not been put. Mr. Prichard, at one

stage, indicated that he was concerned about the continued

membership of the Union of persons who may have ceased altogether

to be employees, such as judges and members of Parliament.

Plainly, in relation to the facts of this case, no such question

can arise, and I do not deal with it.

The eligibility of Mr. Clarke for membership, therefore,

falls to be determined by reference to the nature of his

employment at the time when he became a member, namely on 25th

March 1974. At that time, as at the present, rule 2 of the rules

of the Union provided as follows:

"2. CONSTITUTION

The Union shall consist of all persons engaged in

any clerical capacity, andlor engaged in the occupation

of shorthand writers and typists andlor on calculating,

billing, or other machines designed to perform or assist

in performing any clerical work whatsoever.''

- 18 -

25th March 1974, the date on which Mr. Clarke joined the Union,

was also the date on which he commenced work as an employee of

the Union in the Branch. His application for membership

described his occupation as "clerk". His previous experience was

five years with a firm of insurance brokers in Adelaide; upon

leaving school, he began work there as a junior clerk, and

continued in the position of a clerk until he left to take up a

job with the Union. As a junior clerk, and later as a clerk with

the insurance broking firm, Mr. Clarke's duties included

calculating premiums, writing letters to clients and insurance

companies, filing policy documents and amending them as required,

renewing policies and checking premium calculations. He entered

new business into journals and assisted the accounts department

in the forwarding of accounts receivable. He also filed proposal

forms .

Mr. Clarke's title with the Union was PublicityILiason

Officer. His commencing salary was $110.00 per week, which was

fixed by reference to the rate for a Clerk Grade A under the Clerks Metal Industry (South Australia) Award at the time. In the office of the Branch at the time were the Secretary, the

Assistant Secretary, and two persons who were employed to perform

the duties of organisers and industrial officers. Mr. Clarke was

younger than all of these persons, and was subject to their

direction and supervision with respect to most of his work.

Mr. Clarke was required to write newsletters for various

sections of the Union, informing the members of matters of

- 19 -

interest to them as members. These newsletters were subject to

editing by the Branch Secretary. Mr. Clarke also spent much time

calculating and preparing schedules of wages for publication to

members in respect of all the awards and industrial agreements

applicable to them in South Australia. He spent substantial time

operating a photocopying machine and filing documents such as

award schedules, variations to awards, correspondence and minutes

of section meetings.

The Branch Secretary was also Federal Secretary of an

organization called the Wool Brokers Staffs' Association ("the

Association"). Mr. Clarke was seconded to the Association as its

Administrative Officer. He was expected to work for the

Association as and when required, by arrangement between the

Association and the Union. At the commencement of his employment

with the Union, Mr. Clarke spent approximately half of his time

on the business of the Association. This percentage increased as

time went on. He was obliged to keep the books of account of the

Association, including entering up the journals and preparing financial statements for audit. He filed correspondence from

branches, employers and members, and wrote correspondence to them

on instruction from the Secretary of the Association. He wrote a

fortnightly newsletter for the Association, operated the offset

printing machine to print the newsletter, folded the copies	of it
and placed them in envelopes, and addressed the envelopes.	Until

1977, the Association had no stenographer or secretary. In 1977

it acquired the services of a part-time stenographer. To some extent, this decreased Mr. Clarke's need to become involved in

some of the tasks which he had performed. Mr. Clarke also

- 20 -

assisted in the presentation of cases in arbitral tribunals, by

drawing up exhibits showing wage rates and conditions in varlous

awards, and calculating wage schedules. These were done under

the instruction of the person who was Secretary	of the Branch and
General Secretary of the Association.

In or about 1975, Mr. Clarke became a full-time employee

of the Association. In November of 1980, he was elected

unopposed to the position of General Secretary of the

Association. Apart from a part-time organizer and a part-time

stenographer, the Association did not have any paid officer or

employee other than Mr. Clarke. Both as an employee, and as

General Secretary of the Association, Mr. Clarke performed some

organizing functions, and some duties as industrial advocate.

Most of his time, however, was spent on functions involving

recording and compilation of information, and the production of

documents containing that information.

As I have said, the validity of Mr. Clarke's membership

of the Union falls to be determined by reference to the nature of

his occupation on 25th March 1974. To this extent, his duties as

an employee, and later as an elected officer of the Association

are irrelevant. The burden of Mr. Prichard's case was to show

that on 25th March 1974 Mr. Clarke was employed as an industrial

officer, to take responsibility for organizing members and

assisting them in relation to industrial problems, without

supervision, as was the applicant in Keouh v. Federated Clerks'

Union of Australia (1979) Law Book Company Industrial Arbitration

Service, Current Review 589, especially at pages 592-3. In this

- 21 -

respect, Mr. Prichard clearly failed. It is not surprising that,

as Mr. Clarke's experience with the Union, and later with the

Association, became greater, he was given more responsibility and became more involved in organizing members and dealing with their

industrial problems. Even allowing for the fact that his

original employment might have been intended to groom him for

these tasks, it cannot be said that the character of the original

employment was the same as that to which Mr. Clarke later

graduated.

In Re Federated Clerks' Union of Australia, New South

Wales Branch, and Australian Workers' Union C19711	A.R. (N.S.W.)
419, at page 421, Sheldon J. said:

"The constitution rule of the Clerks Union provides

(inter alia) coverage for persons "engaged in any

clerical capacity". The Commission has described the

phrase "in any clerical capacity" as "a wide one" ,

although not without limitations, and as one of

"indefinite meaning" (Accountants and Secretaries Case)

C1955 A.R. 505 at p. 5183. I do not regard it as proper

to read it down because the rule specifies a few special

classes of work as being included in it. This phrase,

in my view, must be read against the background of the

way industry has developed and is now conducted.

Clerlcal work in industry has long since moved from the

Dickensian era of the high stool and the quill pen. The

voice and the mind are now part of clerical

stock-in-trade. So is the acceptance of responsibility

and the exercise of discretion. The conception is fluid

and progressive and recourse to a dictionary gives only

partial help. It is impossible, and in any event it

would be undesirable, to attempt to devise a code as to

what in the setting of industry today can fairly be

regarded as clerical work. But too fine a toothcomb

should not be used in solving this question in

particular cases. Obviously all employees in an office

are not engaged in a clerical capacity. It is clear

that professional employees are not nor are those who

are truly and basically executive officers. But an

employee does not cease to be employed in a clercial

capacity merely because his work includes many

administrative and non-recording functions. No doubt

there are cases near the border which would be difficult

to determine but in general, and subject to some special

- 22 -

categories, those who are in a subordinate position but

are engaged in the ordinary work of off ice

administration are, in my opinion, prima facie covered

by this constitution rule."

After eferring to certain award provisions, his Honour

continued:

"But the salient point is that for years clerical work

has been regarded for industrial purposes as including

more than mere recording and covers work of different

kinds which no doubt leads to or results from recording

but in fact is part of the general office administration

system. "

This approach has been followed by Watt J., in construing the

phrase "clerical duties" in an award: Voiutsberser v. Council of

the Shire of Pine Rivers (1980) 49 F.L.R. 391. I respectfully

adopt the same approach in construing rule	5 of the Rules of the
Union.

Applying this approach, I find that Mr. Clarke was

eligible to belong to the Union on the date when he first became

a member. His primary functions then were directed to the

recording, processing and disseminating of information. In

addition, he was paid a salary commensurate with that appropriate

to a clerk. Unlike khe industrial officer in Keouh v. Federated

Clerks' Union of Australia (above), he was supervised in his

work. It is true that, when any person is employed in a field

which is new to him or her, the extent of supervision initially

will be greater than that applicable when the employee has become

accustomed to the nature of the job. Even taking this into

account, however, I am satisfied that Mr. Clarke's initial

employment placed him well within a "clerical capacity" within

- 23 -

the meaning of that phrase in rule 5 of the rules of the Union.

It follows that no irregularity resulted from the

acceptance by Mr. Stanley of Mr. Clarke's nomination for the

position of Secretary	of the South Australian Branch of the
Union.

THE AMENDMENT OF RULE 16(1) OF THE BRANCH RULES

Mr. Prichard sought to argue that the amendment to rule

16(1), which was certified by the Industrial Registrar on 29th

June 1984, was invalid, and therefore could not take effect. If

this were the case, on Mr. Pritchard's argument, an election

would have been required to be conducted under the old rule

16(1), particularly sub-paragraph (iv). It was Mr. Prichard's

case that this rule would have required the conduct of	a ballot
of all of the financial members of the Branch.

Precisely how this alleged irregularity could be said to

have been likely to have affected the result of the election was

never the subject of argument. In an election in which there was

only one nomination, no ballot was required to be conducted; in

that sense, the nature of the possible electorate was irrelevant

to this case.

In any event, however, I am satisfied that rule 16(1)

was validly amended, and that the amendment was properly

certified.

- 24 -

Section 133AB of the Act was first enacted by Act No.

115 of 1983. It came into operation on 16th December 1983. It

then provided as follows:

"133AB(1) This section has effect notwithstanding any

other provision of this Act.

( 2 ) Subject to this section, the rules of an

organization may provide for the filling of a casual

vacancy in an office in such manner as is provided in

the rules.

(3) Rules made in pursuance of sub-section ( 2 )

shall include provision to the effect that	a	casual
vacancy may be filled-

(a)	where the total period of office in respect of
which the person who held the office

immediately before the vacancy was elected or appointed (in this sub-section referred to as

the "original period") does not exceed 12

months-for the unexpired part of the original

period; or

(b) in any other case-for so much of the unexpired

part of the original period as does not exceed

three-quarters of the original period.

( 4 ) Where a vacancy in an office is filled by

virtue of rules made in pursuance of sub-section ( 2 1 ,

the person so filling the vacancy shall be taken, for

the purposes of the provisions of this Act (other than

this section) and the provisions of the rules of the

organlzation (other than the first-mentioned rules), to

have been elected to that office in accordance with

those provisions.

( 5 ) Where-

(a)

a vacancy in an office in an organization is filled by a person by virtue of rules made in

pursuance of sub-section ( 2 ) ;

(b)

the rules of the organization provide for a

collegiate electoral system under which the

holders of certain offices are entitled to be

members of a particular electoral college in

the manner described in sub-section 4(5);

and

(c) as a result of his so filling the vacancy-

(i) he is a member of that electoral college; and

- 25 -

(ii)  he is elected by and from that college to one of those offices,

his holding of the last-mentioned office by reason of

that election does not entitle him to be further elected

by and from that electoral college to any of those

offices (including that last-mentioned office).

(6) In this section-

"electoral college" means a body of persons by

and from whom persons are elected at any stage

of a collegiate electoral system subsequent to

the first stage;

"organization" includes an association applying

for reglstration as an organization."

Act No. 162 of 1984 amended this section in a number of respects.

These amendments came into operation on 25th October	1984.	The
section is now in the following form:

"133AB( 1) . . .

(2) The rules of an organization may provide for

the filling of a casual vacancy in an office by an

ordinary election or, subject to this section, in any

other manner provided in the rules.

(3) Rules making provision as described in

sub-section ( 2 ) shall not permit a casual vacancy, or

further casual vacancies, occurring within the term of

an office to be filled, otherwise than by an ordinary

election, for so much of the unexpired part of the	term
as exceeds-

(a) 12 months, or

(b) three-quarters of the term of the office,

whichever is the greater.

(4) Where a vacancy in an office is filled by

virtue of rules making provision as described in

sub-section ( 2 ) otherwise than by an ordinary election,

the person so filling the vacancy shall be taken, for

the purposes of the provisions of this Act (other than this section) and the provisions of the rules of the organization (other than the first-mentioned rules), to

have been elected to that office

in accordance with

those provisions.

(5) Where-

- 26 -

a vacancy in an office in an organization is

filled by a person by virtue of rules making

provision as described in sub-section ( 2 )

otherwise than by an ordinary election;

the rules of the organization provide for a

collegiate electoral system under which the

holders of certain offices are entitled to be

members of a particular electoral college in

the manner described in sub-section 4(5); and

as a result of his so filling the vacancy-

(i) he is a member of that electoral college; and

(ii) he is elected by and from that college t

one of those offices,

his holding of the last-mentioned office by reason of

that election does not entltle him to be further elected

by and from that electoral college to any of those

offices (including that last-mentioned office).

(6) In this section-

"electoral college" means a body of persons by and

from whom persons are elected at any stage of a

collegiate electoral system subsequent to the first

stage ;

"ordinary election" means an election held in

accordance with rules that comply with the

requirements of section 133;

"organization" includes an association applying for

registration as an organization;

"term", in relation to an office, means the total

period for which the last person elected to the

office by an ordinary election (other than an

ordinary election to fill a casual vacancy in the

office) was entitled by virtue of that election

(disregarding the rules, if any, made in pursuance

of sub-section 133(4E) or (4F)) to hold the office

without being re-elected."

Act No. 162 of 1984 also contained the following transitional

provision with respect to S . 133AB:

"6(2) In relation to rules of an organization that

provide for filling of a casual vacancy in an office,

being rules in effect before the commencement of this

sub-section (in this sub-section referred to as the

'commencing day'), the following provisions apply:

- 27 -

(a)	rules made otherwise than in pursuance of
section 133AB of the Principal Act as in force
before the commencing day that were
inconsistent with that section as so in force
are not, and shall be deemed never to have been, in contravention of sub-section 140(1) of the Principal Act by reason only of the inconsistency."
As I

have already pointed out, the amendment to rule 16(l)(iv) of the Rules of the Branch was passed and submitted to

the Industrial Registrar pursuant to S. 139(4) of the Act prior

coming Registrar initially refused to certify the amendment. After the into operation of S. 133AB. The Industrial

to the

coming into operation of S . 133AB of the Act, a request was made

to the Industrial Registrar to reconsider this decision. The

Industrial Registrar took the view that the amendment was not a

rule made "in pursuance of subsection ( Z ) " , as referred to in

what was then sub-section (3) of S . 133AB. Notwithstanding this

conclusion, the Industrial Registrar certified the amendment,

taking the view that it had been valid, even in	the absence of S.
133AB.

Whatever might have been the position prior to the

coming into operation of Act No. 162 of 1984, S . 6(2) of that Act

makes it clear that rules providing for the filling of casual

vacancies which were in effect before 25th October 1984 were not

to be regarded as in contravention of S . 140(1) of the Act, by

reason only of their being inconsistent with 6 . 133AB as it was

first passed. It is proper, therefore, to look at the law as it

stood in relation to rules providing for the filling of casual

vacancies prior to S . 133AB.

- 28 -

In Gordon v. Carroll (1975) 27 F.L.R. 129, at page 177,

the Australian Industrial Court said:

"We think it is reasonable that rules should

contain provisions for appointment or collegiate

election of office-bearers to fill a casual vacancy in an acting capacity until such time as an election can conveniently be held. In cases where some elections are

held annually it would, on the face of it, be reasonable

to appoint a person to act until a special election

could be combined with the annual election. When a

period of more than a year would elapse before such an

election could conveniently be held, we thmk that, in

the absence of special circumstances, the rules should

provide for a special election within a period of

months. 'I

It is my view that this reasoning should be followed. It would

have been open to the Union to adopt rules which provided for the

filling of a casual vacancy in the office of Branch Secretary by

appointment of a person by the Branch Council, where the term of

office of the retiring Branch Secretary had less than 12 months

to run. It follows that provisions for the "election" of a

person to fill such a casual vacancy in the same circumstances,

by an electorate consisting of the members of the Branch Council

only, must be regarded as valid. The term of office of Mr.

Krantz had less than 12 months to run. The system of election

provided for in the Branch rules gave to ordinary financial

members an opportunity to propose candidates for election to fill

the casual vacancy, an opportunity which they would not normally

have been expected to receive if the rules simply provided for

the filling of a casual vacancy by appointment.

It is true that, by reason of the existence of one

nomination only, the members of the Branch Council were never

called upon to vote for any candidate for the filling of the

- 29 -

casual vacancy. Nevertheless, on 18th September 1984, the Branch

Council did receive and adopt the Returning Officer's report as

to the result of the election; no member raised any dissent as

to the choice of a person to fill the casual vacancy.

THE CONSTRUCTION OF THE BRANCH RULES

Mr. Prichard sought to demonstrate that there was an

inconsistency in the rules of the Branch. He pointed to the

power of the Branch Council to appoint an Acting Secretary, which

is contained in rule 24(m) of the Branch rules, and suggested

that this was inconsistent with the provision in rule 30(b) for

the conduct of an election for a casual vacancy. It 1s

sufficient to point out that the power in rule 24(m) is

appropriate for a temporary appointment until the conduct of an

election is reasonably practicable; rule 24(m) itself refers to

the conduct of an election to fill a casual vacancy. In fact, a

temporary appointment of Mr. Clarke was made by the Branch no irregularity results.

Council pending the result of the election which was conducted by

THE PASSAGE OF THE BRANCH RULES

In his original Application, Mr. Prichard raised the

allegation that the Branch rules, which included rule 16(1) and

rule 24(m) were not validly adopted by the Branch Council in

1981. On 30th November 1984, following the making of Mr.

Prichard's application for the inquiry, Evatt J. delivered

- 30 -

judgment in a number of matters (S.A. No. 1 of 1981, S.A. No. 3 of 1981, S.A. No. 4 of 1981, S.A. No. 17 of 1981 and S.A. No. 4

of 1983), in which his Honour found that invalidities had

occurred in the adoption by the Branch Council of rule amendments

in 1981. Pursuant to S . 171C of the Act, his Honour validated

each of those rule amendments. As a result, at the hearing of

the inquiry, no	argument	was	addressed	to	this	alleged
irregularity.

THE VALIDITY OF RULE 31(f)

The original Application alleged that this rule, which

requires a candidate for office to have been a member for at

least 12 months at the date of closing of nominations was in

contravention of S. 140(l)(c) of the Act. No argument	was
addressed to this question at the hearing of the inquiry.	There

is no suggestion that any purported nomination had been rejected

on the ground that the person nominated had been a member of the

Union for less than 12 months. To the contrary, the evidence was

that Mr. Clarke's nomination was the only one received. Mr.

Clarke was a member of the Union for more than 12 months. In the

circumstances, the possible contravention of S . 140(l)(c) of the

Act by rule 31(f) of the Rules of the Branch cannot arise in

these proceedings. Reference should be made to Re Inquirv into

Elections in the Vehicle Builders Emplovees' Federation of

Australia; Ex Parte Allen (1978) 34 F.L.R. 294 and Re Federated

Liquor and Allied Industries Employees' Union of Australia; Ex

Parte Huxtable (1979) 40 F.L.R. 418.

- 31 -

TWO ELECTIONS

In the course of examining witnesses, Mr. Prichard

suggested that an irregularity resulted from the fact that

nominations were called for one election which was to have

resulted in the holding of the office of Secretary of the Branch,

as well as the office of Secretary of an association registered

under the Industrial Conciliation and Arbitration Act 1972 S.A.,

and known as Federated Clerks' Union of Australia, South

Australian Branch. Mr. Prichard made reference to Jones v.

Farrow (1971) 20 F.L.R. 73. In that case, in an application

under S. 141 of the Act, the Commonwealth Industrial Court held

that: persons, purportedly elected as officers in a branch of an

organization registered under the Act by such	a joint election,
were wrongly holding office.

It does not follow from the reasoning in Jones v. Farrow

that irregularities occur in every case in which the result of an

election in a branch of an organization is also treated as

determining who shall hold office in a state registered union or

association closely identified with that branch. In the present

case, I am satisfied that Mr. Stanley was properly appointed to

conduct an election within the Branch. I am also satisfied that

he called nominations properly for the office of Secretary of the

Branch. The fact that the state registered association may have

treated the successful candidate in that election as entitled to

hold the office of its Secretary does not, in my view, lead to

the conclusion that the whole election was irregular.

- 32 -

OTHER POSSIBLE IRREGULARITIES

Mr. Prichard also sought to demonstrate, by questions

addressed to Mr. Stanley, that Mr. Stanley's conduct of the

election was somehow affected by an alleged close relationship

with the officials of the Branch. It is sufficient for me to say

that I am completely satisfied that Mr. Stanley was conducting

the election at arm's length from any officials of the Union. It

should also be pointed out that, in an election where, after

proper advertisement, only one nomination is received, and that

nomination is valid, the declaration of the person so nominated

as elected can hardly be said to be tainted by any impropriety.

The Inquiry having found that no irregularity has

occurred in or in connection with the subject election, it is

unnecessary for me to consider any further question concerning

the conduct or results of the election, and in particular the

matters referred to in S. 165(4) of the Act. The proper order is

one which terminates the inquiry.