In the matter of an election for officers in the Australian Municipal Administrative Clerical & Services Union, North Queensland Branch
[1999] FCA 604
•7 MAY 1999
FEDERAL COURT OF AUSTRALIA
In the matter of an election for officers in the Australian Municipal Administrative Clerical & Services Union, North Queensland Branch
[1999] FCA 604INDUSTRIAL LAW - union elections - enquiry - eligibility to hold office - whether member financial
CONSTRUCTION - union rules - whether inconsistency between national and branch rules
Workplace Relations Act 1996 s 218, 207
IN THE MATTER OF AN ELECTION FOR OFFICERS IN THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION, NORTH QUEENSLAND BRANCH
Q 111 OF 1999KIEFEL J
BRISBANE
7 MAY 1999
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 111 OF 1999
IN THE MATTER OF AN ELECTION FOR OFFICES IN THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION, NORTH QUEENSLAND BRANCH
JUDGE:
KIEFEL J
DATE OF ORDER:
7 MAY 1999
WHERE MADE:
BRISBANE
THE COURT DECLARES THAT:
1.Margaret Anne Dale is eligible to hold office in the Australian Municipal Administrative Clerical and Services Union, North Queensland Branch and that she is not an unfinancial member by reason that lesser amounts than the amounts due by way of contribution have been deducted from her salary and paid to the Union in the years 1997 and 1998.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 111 OF 1999
IN THE MATTER OF AN ELECTION FOR OFFICES IN THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION, NORTH QUEENSLAND BRANCH
JUDGE:
KIEFEL J
DATE:
7 MAY 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
There is currently under way an election of office bearers of the North Queensland Clerical Branch of the Australian Municipal Administrative Clerical and Services Union (‘the Union”). The offices include those of branch secretary, two national conference delegates and one national executive representative. The ballot closes on 12 May 1999. Ms Dale is a candidate for each of the offices referred to and Mr O’Donnell, who was the applicant for an order for an enquiry into the election under s 218 Workplace Relations Act 1996, is also a candidate. That order was made. It is alleged that the irregularity in the election process arises because Ms Dale was not qualified as a candidate as she was not a financial member of the Union for the relevant period.
The Union is an organisation registered under the Workplace Relations Act and its Rules, both National and Branch, are registered pursuant to s 207 of that Act. The Branch Rules are subordinate to the National Rules in the event of inconsistency. Rule 10e provides:
“e.Branch Rules shall, with the exception of Rule 56, be consistent with the National Rules and shall be void and of no effect to the extent of any inconsistency. Branch Rules may provide for procedures to be followed to amend branch rules provided that such amendments are not inconsistent with the rules of the Union and such amendments are submitted to and approved by the National Executive.”
The National Rules provide, by Rule 39 (“Eligibility of Candidates”) that:
“a.Only members of the Union who are financial at the date on which nominations close, and have been continuously financial for twelve months immediately preceding that date, shall be eligible to be nominated for any Office within the Union. For the purposes of this Sub-rule, financial membership of an organisation whose members have, by means of an amalgamation, become members of the Union, shall be counted in the calculation of any period of membership. Provided that the qualification of 12 months continuous membership shall not apply for a period of 12 months from the date of amalgamation to members who were members of the ASU on the day immediately preceding the day of amalgamation.”
Rule 23 provides for when members are unfinancial:
“a.A member owing annual subscriptions or fines or levies for a period of 3 months after they first become due shall be unfinancial.
b.A member who elects to pay payroll deduction subscriptions shall be deemed to be unfinancial, should the member’s authority to deduct such subscriptions from salary be withdrawn, from 30 days after such withdrawal of authority. Provided that the provision of paragraph a. herein shall apply in respect to any outstanding annual subscriptions of a member who was paying annual subscriptions prior to electing to pay payroll deduction subscriptions.
Should the employer refuse to make pay roll deductions of Annual subscriptions or fines or levies the union shall advise the member in writing of such refusal by the employer and extend to the member a period of three (3) months grace after the annual subscription or fines or levies first became due if at that time the subscription or fine or levies remain owing the member shall be unfinancial.
c.Where a member elects to pay subscriptions by transfer from a financial institution and such payments are not made the Branch Secretary shall forthwith render to the member an account for the amount due and unpaid. The date of the account shall be the date upon which the subscriptions are payable.
d.An unfinancial member shall not be entitled to any of the rights and privileges of membership including the right to hold or continue to hold office or to participate in any ballot of members of the Union or to vote or speak at any meeting of the Union. It shall not be necessary to serve an unfinancial member with any notice of meeting. Provided that where a person holding an office ceases to be a financial member of the Union, in the case of a National office the National Secretary (or a National Executive President) and in the case of a branch office, the Branch Secretary (or where the Branch Secretary ceases to be a financial member, the Branch President) shall notify such person in writing that unless they become financial within twenty eight (28) days of the receipt of such notice in writing such person shall cease to hold the office upon the expiration of the said period of notice.
For the purposes of this sub-rule notice in writing shall be deemed to have been given upon service by certified mail to a member’s last known address.
e.An unfinancial member who, within a period of 30 days, fails to comply with a written demand forwarded to the member’s address on the member’s register, for payment of arrears, may be sued by the Branch Secretary for recovery of such arrears. A member may give a reason or reasons why the subscriptions, fines or levies have not been paid, and thereupon the Branch Executive may, at its discretion, extend the time of payment for such period as it deems fit. This extension of time does not render the member financial.”
National Rule 18, paragraph a provides
“A member shall pay to the Union either an Annual Subscription in advance or a payroll deduction subscription.”
And the paragraphs which follow provide for each Branch being able to set annual subscriptions at a level higher or lower than that recommended by the National Executive. Paragraph e to g then provide:
“e.Subscriptions may be paid by yearly, half yearly or quarterly payments, or by such other payment periods as may be prescribed by branches in their rules, or by salary deduction, or by transfer from an account at a financial institution”.
f.Payment of subscriptions by payroll deduction may be made where a member has authorised an employer to deduct the subscription from the members salary, and the employer has agreed to make such deduction, and regularly submit the subscription to the Union or a Branch thereof.
g.The Branch Executive may, in special circumstances waive subscriptions and or arrears of subscriptions. The Branch Executive may delegate this power to the Branch Secretary, provided that the Branch Secretary shall report all waivers to the Branch Executive.”
(I shall refer to particular National Rules by the prefix “NR” and the Branch Rules, to which I shall now refer, by “BR”).
The Branch Rules make provision for contributions. Paragraphs a to c provide for the rate of contribution and paragraph 12d then provides:
“d. Yearly payment in advance on the first day of each annual period shall be in force for all members except those members who elect to pay their annual membership contributions by hourly, weekly, fortnightly or half-yearly salary deductions in accordance with the provisions of Rule 13 of these Branch Rules. The annual period shall commence on 1st January in each year.”
BR13, which is here in contention, provides:
“a.Notwithstanding anything to the contrary contained elsewhere in these Rules, a member may effect payment of membership contributions by having them deducted at designated regular intervals from salary payments from an employer or by transfer from an account at a financial institution and for such deductions to be then remitted on behalf of the member by the employer or by the financial institution to the Union;
Provided first -
i.there exists between the Union and such employer an agreement for such deductions and remittances to be made; or
ii.there exists between the Union and the member an agreement for such deductions and remittances to be made by the financial institution; and
iii.the member concerned lodges with the Branch Secretary a signed authority authorising the deductions and remittances.
b.Any amount not deducted or otherwise outstanding as membership contributions shall continue to be due and payable and recoverable by the Branch as provided in these Rules.
c.Where not elsewhere provided in these Rules, the amount to be deducted at each of the said designated intervals shall be the amount of the appropriate annual membership contribution payable by the member pursuant to Rule 12 of these Branch Rules divided by the number of designated regular intervals in the financial year concerned. Where there is a fraction of a cent resulting from such calculation, the amount of the deduction shall be increased to the next cent.
d.From the date of lodging an authority with the Branch Secretary pursuant to this Rule, and whilst the authority remains in force, the member lodging such authority shall be deemed to be financial and, for the purpose of elections, not to owe any moneys to the Union unless at the date of lodging such authority the member is in default in the payment of any contributions, fines or levies.
(The emphasis is added).
Ms Dale has been a member of the Union since 1982 and is the Vice-President of the Branch. She has in recent years also been the workplace delegate for the Union at her place of employment, the James Cook University at Townsville. Since 1982 Ms Dale has paid union contributions by payroll deductions pursuant to an authority. The authority is a continuing one. It provides that Ms Dale does:
“…… hereby authorise and direct you to deduct from my salary/wages each fortnight such amount as may from time to time be determined by and notified to you in writing by the undermentioned Union and to forward the amount so deducted to that Union:
…… This authority is to continue in force until such time as it is cancelled in writing by me.”
The authority has appended to it a note that a copy was sent or is to be sent to the Union. There is also in the material before me a memorandum to the Bursar from a university staff officer referring to an agreement having been reached with respect to deduction from salary with unions which include the predecessor to the present union, the Federated Clerks’ Union. In any event no issue is taken with respect to these matters.
Annual membership contributions are fixed by the Branch and are notified to employers such as the University. The membership fees for the 1997 year were increased by the sum of $7.80 and this was agreed to at a Branch Executive meeting in April 1997. Another increase was fixed for the year 1998 in the sum of $5.20. Neither of those fee increases were notified to the University and they were not deducted from the salary of Ms Dale or other Union members employed at the University.
There is a dispute concerning whose obligation it was to notify the University. On Ms Dale’s behalf it was said that that fell to the Branch Secretary, who was on each occasion Mr O’Donnell. Mr O’Donnell says that Ms Dale was the workplace delegate and was provided with the notification of increase to be given to the employer. It is not necessary for me presently to deal with this dispute and indeed some of the more serious allegations made in this matter. For present purposes it needs only to be observed that the amount of the increase in fees in these years was not deducted. It is not suggested that the Branch Secretary rendered an account for the amount due and unpaid. There is also some question, although the issue has not been squarely raised, as to whether or not there has been an agreement by the Branch Executive to waive the fees at least for the 1997 year. There is no material before me to establish that as a fact. Mr O’Donnell has said that there has been no such waiver. The only other fact which needs to be mentioned at this point is that Ms Dale’s authority remained in force throughout this period and has never been revoked.
The irregularity pointed to relies upon NR39a and 23d having been breached. It is submitted that whilst the rules acknowledge a distinction between an annual payment of subscription and periodical payments, it is required that the correct amount, the proportion of the annual subscription, be paid or else the member will be unfinancial. The only purpose served by BR13d, it is submitted, is to acknowledge that it is in order to pay contributions in arrears, but that it should not be taken to mean that, so long as there was in existence an authority for a subscription to be paid by regular payroll deductions, the member would be taken to be financial even though a sum was due. That would seem to me to strain the language of BR13d. Alternatively it was submitted that if its meaning is to be taken literally, it is inconsistent with the provisions of the national rules relating to unfinancial members and is void and of no effect.
The scheme of the National Rules recognises that the subscription to be paid by a member (the amount to be paid for one year as a member of the Union) may be paid in advance, in one amount; or periodically, by deduction from a members’ salary or wage (18a). It is left to the branches to determine the latter payment periods in their rules (18c). Payment by this method is authorised by the National Rules so long as there is an authority from the member to the employer to make the deduction and the employer has agreed to do so and to send the monies to the Union or Branch (18f). Little more is said about subscriptions unpaid, save for clause 23 “Unfinancial members” to which I shall later turn. The National Rules do recognise that the Branch Executive or Secretary may waive subscriptions or arrears (18g). NR25 (which I have not set out above) also provides that the Branch Secretary has power, in the name of the Union, to recover “any subscriptions …in arrears…”.
I turn then to the Branch Rules. BR12d recognises the two methods of payment referred to above (there is another method elsewhere referred to, by payment from a financial institution, but I need not go into that for present purposes). It also provides that annual periods commence on 1 January in each year. BR13 otherwise governs payments by way of salary deductions.
BR13a restates that a member may pay membership contributions by salary payments, provided there is an agreement between the Union and the employer to that effect and “the member lodges with the Branch Secretary a signed authority authorising the deductions and remittances”. It is of some importance that that rule then provides that the amount to be deducted at the designated intervals (as in 12d) shall be the amount of the annual membership contribution divided by that number of intervals in the year in question.
BR13d then provides that when an authority is lodged and so long as it remains in force, the member is deemed to be financial. It must however also be noted that it is not suggested by this rule that the member is to be taken to owe no monies. It is said that that person is deemed “not to owe any moneys to the Union” “for the purpose of elections”, unless they were in default when the authority was lodged. In the case of monies otherwise outstanding, these would continue to be due and payable under BR13b, and recoverable by the Branch.
The potential for inconsistency arises because BR13d, unlike the balance of that rule, concerns itself with eligibility for elections. It goes beyond provision for contributions from salary deductions. The provision of the National Rules which deals with the ineligibility of members, because they are unfinancial, is NR23.
When turning to NR23 it is necessary to observe, at the outset, that an “unfinancial” member is not simply one who owes money by way of contributions, that is to say a person who has just fallen into arrears. It is concerned with what events, in connexion with payments of contributions, and over what period of time, will combine to render a member unfinancial and ineligible on that account.
Paragraphs a and b of NR23 would seem, respectively, to refer to the one advance payment of subscription and the periodic payroll deductions. In the case of the former, a period of three months is allowed before a member becomes unfinancial. This may be accounted for by the larger amount involved. In the latter case reference is not made to non-payment, but to two events: the withdrawal of the authority to deduct by the member and the refusal of the employer to make payroll deductions. When the authority is withdrawn, a fact within the member’s knowledge, only thirty days is allowed before they are deemed to be unfinancial. Where the employer later refuses to make deductions, and pay them to the Union, the Union is required to advise the member, who may not know, and a period of three months grace is allowed “after the annual subscription …first became due”. An unfinancial member is not entitled to the rights and privileges of membership and may also be sued by the Branch Secretary for recovery of arrears.
NR23 does not refer to the situation where a member has merely fallen into arrears with respect to payroll deductions. Indeed the point made in submissions was that, were the maintenance of an authority to deduct contributions from salary sufficient (together with the employer’s continued co-operation), this would mean that a person could have paid less than their dues and yet be regarded as financial. That fails, in my view, to take account of the certainty with which NR23 expects the authority to operate.
The authority lodged must be one to pay contributions becoming due during the currency of the membership. Once lodged with the Branch Secretary, who would then provide it or a copy to the employer, it operates as a continuing authority for the deduction of such contribution as the Branch determines. If, as here occurred, there is some breakdown in the process whereby the Branch informs the employer of an increase, that was not predicted by the rules to occur. The only other matter which might affect payment being received is the employer later deciding not to cooperate, or the member becoming unemployed by them. The latter event would however reflect in an employer’s refusal to deduct, which would trigger the notification provisions of NR23, 23b.
BR13d does purport to address the question of whether a member lodging an authority could be said to be unfinancial, and it does so in a way which differs from the terms of NR23b. The latter deems the member to be unfinancial thirty days after they withdraw the authority to deduct from salary; BR13d says that whilst the authority is in force the member is financial for the purpose of elections. What it does not say is that they have another thirty days before they lose their eligibility. To the extent that it provides, inferentially, that when the authority is withdrawn a member is unfinancial, it is inconsistent with the National Rule and by reason of NR10e, of no effect.
The question in this case, arising from the underpayments by Ms Dale and others, is however resolved simply by a consideration of the National Rules relating to when members are taken to be unfinancial and thereby to lose their rights to hold office. It does not depend upon the extent of any inconsistency with BR13d. Since her authority to deduct contributions from salary remained in place, and was not withdrawn by her, and there is no issue about the employer’s willingness to deduct, Ms Dale remained a financial member within the meaning of the National Rules. There were the only two events which could have rendered her unfinancial and they had not taken place. The unpaid contributions nevertheless remain owing by her to the Branch and may be recovered by it.
There will be a declaration that Ms Dale is eligible to hold office in the Branch and that she is not an unfinancial member by reason that lesser amounts than the amounts due by way of contribution have been deducted from her salary and paid to the Union in the years 1997 and 1998. The declaration should also serve to clarify the position of others in the same position.
I add that had the construction of the rules been such as to render Ms Dale unfinancial, I would have been prepared to make an order that in the event she was elected to the offices, such elections be validated under s 258(3). There could be no suggestion of an adverse impact by this on the Union or others.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate:
Dated: 7 May 1999
Counsel for James O’Donnell: Mr J Murdoch Solicitor for James O’Donnell: Quinn & Scattini Counsel for Ms Dale Mr M Amerena Solicitor for Ms Dale: Nall Payne Representative for the National Executive President of the Australian Administrative Clerical and Services Union: Mr M O’Sullivan Solicitor for the Returning Officer of The Australian Electoral Commission: Australian Government Solicitor Date of Hearing: 27 April 1999 Date of Judgment: 7 May 1999
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