In the matter of the Airline Hostesses Association

Case •

[1980] FCA 210

•

1 Oct 1980

No judgment structure available for this case.

IN TXE FEDEkAL COURT OF AUSTRALIA )

1

VICTORIA

DISTRICT

REGISTRY

1

Eo. 19 of 1980

1

DIVISION

INDUSTRIAL

1

IN TIlE -MATTER of the Conciliation and

Arbitration Act, 1904

AND IN THE MATTER of an alteration

of

the rules

of the AIRLINE HOSTESSES'

ASSOCIATION, an organization

of employe

registered under the said Act

N\?D IN THE MATTER of a reference by the

Industrial Registrar pursuant to

s.112

of the said Act of questions of law

f a

the opinion

of the Federal Court

Of

Australia

O R D E R

JUDGES MAKING ORDER:

Bowen C.J., Smithers, J.B. Sweeney, Evatt

and Northrop

JJ.

DATE OF ORDER:

1 October, 1980

WIERE

MADE

:

Melbourne

THE COURT ORDERS THAT the questions referred be answered as follows :

Do the rules set out in the reference provide for the election of the holder of each office (as defined in s.4) within the organization as required by s.l33(l)(a) and reg. 115(l)(d)(i)?

,-.

.

-

- -

Acswer:

Yes

In particular:

{a) Do rules 27 and 41 contravene s.l33(l)(a) azd

reg. 115(l)(d)(i) insofar as those rules appear

to provide that persons elected

to be Federal

officers shall, without any further election,

also be members

of the Federal CoQncil

and

Federal Executive?

Answer :

NO

2.

(b)

Does rule 27 contravene s.l33(l)(a) and reg. 115(l)(d) insofar as that rule appears to provide that persons elected to be Branch President and Branch Secretary

shall, without any further election, also

be members

of the Federal council?

Ar,swer

: NO

(c)

Does rule 41 contravene s,133(l)(a) and reg. 115(l)(d)

insofar as that rule appears to provide that

a person

elected to be Branch President shall, without any

further election, also be

a member of the Federal

Executive?

Axswer :

No

( 3 ) Do the said rules satisfy the relevant requirements

of

paragraphs (a) and

(c) of

s.140(1)?

AESWer:

So far as the requirements of paragraph (a) of

s.140(1) are concerned, yes.

So far as the requirements

of s.l40(l)(c) are

concerned, not answered

I N THE FEDERAL COURT OF AUSTRALIA)

1

V I C T O R I A

D I S T R I C T

REGISTRY

1

N o .

19

of

1980

1

INDUSTRIAL

D I V I S I O N

1

I N THE

MATTER

of

the Conci l ia t ion

and

Arb i t r a t ion

A c t

1904

AND I N THE MATTER of an

a l t e r a t i o n o f t h e

r u l e s

o f the

A I R L I N E

HOSTESSES'

ASSOCIATION,

an

organization of employees

r eg i s t e red

under

the

said

Act

A N D

I N THE

MATTER

of

a

re ference

by

the Indus t r i a l Reg i s t r a r

pursuant

t o s . 1 1 2

of

t h e s a i d

Act

of questions

of

l a w for the

opinion

of

the Federal

C o u r t

of

Aus t r a l i a

CORAM:

Bowen

C . J.

Smithers J.

J . B .

Sweeney J.

Evat t

J.

Northrop J.

1 October

1980.

REASONS FOR JUDGMENT

BOWEN C . J . :

These

proceedings

were

brought

under

s.112

of

t h e

Conc i l i a t ion

and

Arbi t ra t ion Act ( " the

A c t " )

by

the Indus t r i a l

Regis t ra r

i n

r e f e r r i n g

a

question

of

law for

the

op

in

ion

of

i

_..

-- -

the

Federal

C o u r t . o r g a n i z a t i o n

The

quest ion

arose

when

the

A i r l i ne

H o s t e s s e s '

A s s o c i a t i o n ,

a n

e m p l o y e e s

o f

r eg i s t e red

under

the

Act,

applied

under

sub-s.139(4)

of

the

same

Act

t o a l t e r

i t s r u l e s .

- 2 -

Before any r u l e change

can

be

e f f ec t ed

t he

Reg i s t r a r

m u s t

c e r t i f y

where

h is comply

consent

i s

n o t provisions

r e q u i r e d

t h a t ,

i n t e r

a l i a ,

t h e

a l t e r a t i o n s

with

the e l e c t i o n

of

the

Act.

The

p r o p o s e d

a l t e r a t i o n s

r e l a t e

t o

t h e

o f

h o l d e r s

o f

o f f i c e s

i n the

Association.

The provisions

bas i c

ques

t

ion

t o

be. answered

by

th i s

Cour t

i s

whether

the

of

the

Act permit a

s t r u c t u r e

i n an

organizat ion

whereby

an

e l ec t ed

o f f i ce

ho lde r

may,

by

the

ru les

o

f

the

o rganiza t ion

a

t

the

t ime

of

h i s

( o r

h e r )

e l e c t i o n ,

b e ,

by

v i r t u e

of

t h a t

e l e c t i o n ,

t h e

h o l d e r

of

another The proposed

"off

ice"

as

def

ined under

the Act

.

rules

provide

for

a

f e d e r a l

s t r u c t u r e

i n

the

Associat ion.

Each member

i s t o belong t o a

S ta t e

o r

Te r r i t o ry

or

overseas

Branch with i t s own committee

of

management

and

o f f i c e r s

and

which

w i l l

be

r ep resen ted

on

t he

sup reme

governing

body,

the

Federal

Council.

Under

r . 2 1

the

Federal

Counci l

has

power ,

in te r

a l ia ,

to

super in tend ,

manage

and

con t ro l

t he

A . s soc ia t ion ' s

a f f a i r s ,

p rope r ty

and

funds ,

make,

amend

o r

r e sc ind

ru l e s ,

and

delegate

such

of

i t s power

a s

it

t h i n k s

f i t ,

s a v e

t h e Provision

power

t o amend

o r

r e sc ind

ru l e s ,

t o

t he

Federal

Executive.

i s made

f o r a Federal

Executive

which is the

committee

of

management

respons ib le

for

cont ro l

and conduct

of

the

business

and

a f f a i r s of

the

Associat

ion

whilst

Federal

Council

i s

not

iri*-3Fssion.

The

Council i s t o

meet annually

whereas

the

Executive

m u s t

meet

a t

l e a s t

e v e r y

four

months.

I

t u r n t o the form

of

the

proposed

rules.

By

r . 2 7

the

Federal

Council

i s t o be composed o f :

- 3 -

the

Federa l

Off icers

who

s h a l l

be

the

Federal

President ,

the

Federal

Vice

President

and

t h e

Federal

Secretary:

Branch de lega tes who

s h a l l be

the

President

and

Secretary of each Branch;

add i t iona l

de l ega te

o r

de l ega te s

from

Branch

a

or Membership

Eranches Branch

on

the fol lowing basis :

Representative

200-399

1

400-599

2

600 and over

3 'I

By

r.41 t h e

F e d e r a l

E x e c u t i v e

w i l l

c o n s i s t

o f

t h e

following:

Federal

President:

Federal

Vice

President:

Federal

Secretary:

t h e

o c c u p i e r

f o r

t h e Branch

t i m e

b e i n g

o f

t h e

posi t ion

of

President

of

each

Branch

or her proxy.

I'

The

Federal

President,

Federal

Vice

President

and

Federal

Secre ta ry

as

the

"Federa

l

Off

icers"

o

f

the

Assoc ia t ion

a

re

to

be

e lected

for

two

years

by

s e c r e t

p o s t a l

b a l l o t

of

a l l

f i nanc ia l

members

of

t h e A s s o c i a t i o n e l i g i b l e t o v o t e

( r . 5 5 ) .

The Branch f i nanc ia l members

Pres idents

and

S e c r e t a r i e s a r e t o

be

e l ec t ed by

a l l

of

their

respective

Branches

(Branch

r . 2 )

as

a re the de lega tes to Federa l

Counc.:T'

( r . 2 8 ) .

The

r u l e s

a l s o

p r o v i d e

f o r

u l t i m a t e

c o n t r o l

o f

t h e

decisions

of

the

Federal

Council

( r . 38 )

and

Federal

Executive

( r . 5 0 )

by

a

m a j o r i t y

o f

t h e

f i n a n c i a l

members

o f

t h e

Association

voting

by

p l e b i s c i t e

c a l l e d

on a

motion

of

a t

- 4 -

l e a s t

h a l f

t h e

number

Branch

of

Councils

or

5% of

the

f inanc ia l

members.

I t appears from the above tha t

the

th ree

Federa

l

Off

icers

by

v i r t u e

of

t h e i r

e l e c t i o n

a r e

made

members

of

the

Federal

Counci l

(a

pol icy/management

body)

and

of

the

Federal

Executive (the Branch President and

committee

management).

of

Similarly,

the

Secre ta ry

a re

ex

o f f i c i o members

of

the

Branch Council

(a

Branch

Committee

of

management)

and

Federal

Council

and

the Branch

P res iden t s

a l so

a r e

members

of

the

Federal

Executive.

I n

h i s

r e f e r e n c e ,

t h e

I n d u s t r i a l

R e g i s t r a r

d r e w

t h e

a t t e n t i o n

of

the

Cour

t

to

a number of

provisions

of

the

A c t .

Paragraphs

( a ) and

( c ) of sub-s . l40(1)

of the Act read:

"(1) The

rules

of

an organization

-

( a )

s h a l l

n o t

be

c o n t r a r y

t o ,

o r

f a i l

t o

make

a

provision

required

by,

a

provis ion

of

this

Act

,

the

regulat ions

or

an

award

or

otherwise

be

c o n t r a r y t o

a

law;

...

(c)

s h a l l o r members, of the

n o t

impose

upon

app l i can t s

fo r

membership

o rganiza t ion ;

condi t ions ,

obl

igat o b j e c t s

ions or

res t r ic t ions which,

having

regard

t o

t h e

o

f

t h i s unreasonable

Act

and

the

purposes

of

t h e

r e g i s t r a t i o n

of

organiza t ions

under

th i s

Act ,

are

oppressive,

or

unjust

.

"

~I

.

-

-

. -

By

s u b - s .4 ( l

) :

" ' O f f i c e ' ,

i n

r e l a t i o n

t o

an

organizat ion

or

branch

of an organization,

means

-

( a )

t h e

o f f i c e management

of

a

member

the

of

committee

of

of

the organizat ion or branch:

- 5 -

(aa) the

office

of

president,

vice-president,

secretary,

assistant-secretary

other

or

executive officer, by whatever name called, of

the organization or branch:

(b)

the office of a person holding, whether as

trustee or organization or branch, or

otherwise,

property

of

the property in which-

the

organization

or

branch has any beneficial

interest:

(C)

the office of

a

member of any conference,

council, committee, panel or other body within the organization or branch which, under the rules of the organization or of the branch, is empowered to make, alter or rescind rules or to enforce, or perform functions in relation to the enforcement of, rules or to exercise any of the functions of management:

(d)

every office within the organization or branch for the filling of which an election is required to be conducted within the organization or

branch.

I'

It is clear from the above that the Federal Officers in the proposed rules occupy more than one "office" as defined, as also do the Branch Presidents and Secretaries.

Sub-section 132(2) provides:

"132 (2 associations so applying for

)

The conditions to be complied with by

registration and by

organizations shall be as prescribed."

The relevant conditions are those prescribed by reg .l15 the material portion of which is'*as-?€ollows:

,

1 1 ( 1 )

The

following

conditions

are

prescribed

conditions to be complied with by an association

applying for registration, namely:

...

- 6 -

(d) the the association, for -

affairs

of

the

association

shall

be

regulated by rules ... providing, in relation to

(i)  the election of -

(a)

a

committee of management of 'the

association and of each branch of the

association:

(b)

officers of the association and of each branch of the association; and

(c) any

conference,

council,

panel

or

other

body

(additional

to the

committee of management) which is

empowered to determine policy or to

exercise functions of management in

the association or branch.

( 2 )

The conditions specified in

the last preceding'

sub-regulation apply in relation to OrganiZatiOnS in

like

manner

as

they

apply

in

relation

to

an

association

applying

for

registration

as

an

organization

. ' l

Paragraph 133(l)(a), in so far as it is

relevant, reads:

"(l) In addition to the conditions referred to in

sub-section ( 2 ) of section 132, the conditions to be

condition that the rules of ... organizations:

complied with by . . . organizations include a

(a) shall provide for the election of .the

holder of

each office within the ... organization either

by -

(i)

a direct voting

system; or

(ii)

a collegiate electoral

system being, in

the case of an office the duties of which - -. ---. are of a full time nature, a one tier

collegiate electoral system.

"

In the recent decision of the Full Court of the Federal

Court in Sherrif v. Townsend, handed down on 3 April 1980, the

majority dicta expressed fully by Smithers J. considered that

- 7 -

a member of an organization of employees elected to a designated executive office and acceding by virtue of the rules to the office of member of Federal Council had not been elected to the latter office in accordance with .the Act. Smithers J. considered that the legislation envisaged "a separate election, direct or collegiate, for each office in the organization". He added that:

"When a rule provides that a person elected to a

particular office shall thereupon accede to another

office

the electorate is denied

a

choice as to

whether it desires that that person shall hold that

other off

ice.

'I

The implication is that each office in the exhaustive list of offices in s.4 is separate and must be the subject of an election. In Sherrif v. Townsend, supra, this reasoning was not necessary for the ultimate decision because the rule in question was held on other grounds to be invalid. However, the analysis by Smithers J. raises important questions.

At the hearing, Counsel appeared on behalf of the Airline Hostesses' Association and was given leave t o appear on behalf of members of the Australian Council of Trade Unions and the Commonwealth of Australia Government Employees' Organizations. Counsel was also granted leave--+b represent the Vehicle Builders Employees' Federation. The Registrar was not represented, the Crown did not intervene but briefed Counsel to appear as amicus curiae to assist the. Court in some wider aspects and implications of the argument.

- 8 -

It was submitted by Counsel for the Airline Hostesses' Association that the

repercussions of any decision requiring a

separate election to each office as defined would

be enormous.

Not only would a

great number of organizations find their

rules suddenly invalid but such an interpretation could only mean that union members were entitled to elect a different

person

to

each office. If such

a

situation occurred,

organizations would find

it almost impossible to maintain

lines of communication within their federal

systems and be

unable to function efficiently as representative bodies.

Whilst it is true that there could be great inconvenience to many organizations, the reference is on a question of law and it is necessary to look at relevant provisions of the Act in the context of the Act as a whole and the cases that have arisen.

Looking at the matter in this

way, I find myself unable to

accept that the

legislature intended that each "office" as

defined should be the subject of

a

separate election.

Further, I cannot agree that if the Act did require such an election it would be satisfied by a ballot paper enumerating a number of offices as a composite position for which nominated

candidates

were

standing. separate, members must be ,ab.le_to nominate

If

offices

are

necessarily

a

separate

.

candidate for each.

I am unable

to see that

reg .115(1)

(d) (i)

implies any

notion of mutual exclusivity between of.fices. In fact, it

- 9 -

seems to me to be simply grouping functions into the various

classes such as one

would need to find in a

federal system.

In the case of Bicknell v. Amalgamated Engineering Union

(1969)

15 F.L.R. 215, reg.l15(l)(d)(i) was

discussed

extensively along with S .140, though no mention was made of the then current s.133. The Court was there concerned with an organization the rules of which had undergone radical

restructuring. In this reconstruction it was proposed that certain elected District Secretaries be appointed as the first State Secretaries for the period of time they still had left to serve in their previous elected offices. The rules under discussion were substantially the same as those presently before the Court. It is apparent from the discussion (at pp.218-219) that the Court was fully aware that the duties of State Secretary included that he be ex officio a member of State Conference and State Council. However, no point arose in that case as has arisen before us.

There is no doubt that in compliance with reg.l15(1)(d)(i) the proposed rules provide for elected officers and committee

of management at the Federal and

Branch' levels and for a

policy/management body at the Federal level. It is only by reference to the definition of ''office" that one finds each of

these functions referred to

as 'Io,f.&Fes".

The definition of "office" indeed is singularly unhelpful because of its intended exhaustive nature and the fact

that it

defines "office" by referring to "office". Furthermore, it appears that paragraph (d) of the definition overlaps with other paragraphs.

- 10 -

Some support for

the notion of separateness is said

to

arise from the use of the word ''each" in para.133(1) (a) which was first introduced in 1973 and later amended in 1976. It reads that the rules "shall provide for the election of the

holder of each office

. .

. l ' .

Counsel for the various

associations argued that the

emphasis must be put

on the

a consideration of the Act and

cases I agree that this must be

so. The terms of sub-s.l33(1A) inserted at the same time as a new sub-s .133(1)

by Act No. 138 of 1973 also

tend to support

that view. This last consideration

is not weakened

by

the

deletion of sub-s .l33 (1A) and the insertion

of a new

para.l33(l)(a) by Act No. 117 of.1976.

The objects of the Act are enumerated in S

.2

Among them

are the following:

"(e) to encourage the organization of representative

bodies of employers and employees and their

registration under this Act;

and

(f) to organizations so registered

encourage

the

democratic

control

of

and

the

full

participation by members of such an organization

in the affairs of the Organization

.I'

Counsel took the Court

through

the

various

stages

of

.. -..

amendment to the parts of the Act with which we are concerned and it was noted that elections were not a feature until 1928. The problem of what actually constituted an election under the Act was solved in favour of including collegiate electoral systems in Steele v. Federated Ironworkers' Association of

11 -

Australia (1954) 52 C.A.R. 594.

Such systems were common up

to 1973, abolished and then reinstated in 1976. Until 1973

the section dealing with elections,

S .70A,

which was

renumbered S .l33 in 1956, concentrated on secret .ballots

,

absent voting and conduct of elections. It only applied to sub-paras . (a), (aa) and (b) of the definition of ''office" as it stood at the time, leaving the conduct of elections under

sub-para . (c) open.

I do not think that before the 1973

amendment to s.133, there

was any question of a separate

election for each office.

I

believe that the intention of the 1973 amendment

including ''each" in reference to office, was merely ensuring that the rules governing elections now applied to all the sub-paragraphs in the definition of "office". This belief is reinforced on reading para .l33 (1) (da) where provision is made for postal voting in relation to "every election for an office within the association of a kind referred to in para. (a), (aa) , (b) or (c) of the definition of office". There is no

mention of "each" office, because sub-para.

(d)

of this

definition is not included.

What must be kept constantly in mind is

that organizations

registered under

the Act may represent many thousands of

members all over Australia. Thes-e-++embers

must be represented

democratically but also efficiently and because of the

division of Australia into States and

Territories, a federal

system of representation would be normal. The

Courts have

frequently considered various types

of federal systems and

- 12 -

from the cases it is clear that organizations are able to design specific structures with different checks and balances to cater for their own individual needs. The only parameters

are those embodied in reg.115 requiring election for

a

committee of management, various officers and any other policy

making or management body.

As was said in Lovell v. Federated

Liquor and Allied Industries Employees' Union of Australia

(1978) 35 F.L.R. 72 at p.81, per Smithers and

Evatt JJ.:

"A constitution suitable for

one union may be

unsuitable for another

... The rules must be designed

to ensure stability

in management and

at the same

time to avoid installing

officers who cannot be

removed. In the designing of rules appropriate for an organization of employees much must be left to the

judgment of those w h o make the rules

."

(And see generally Lovell's Case, supra at pp.89 and 98;

and

Wiseman v. Australasia (1978) 35 F.L.R. 24 at pp.32-35 and 38-42.)

Professional Radio and Electronics Institute of

It has been held on a number of occasions that filling a casual vacancy by appointment

is permissible in certain

circumstances (Cameron v. Australian Workers' Union (1959) 2 F.L.R. 45; Purse v. Amalgamated Society of Carpenters and

Joiners of Australia 75 C.A.R.

88;

Watson v. Australian

I

Workers' Union 10 F.L.R. 347).

Some associations have validly

_-.

.---.

. -

imposed length of membership requirements for office holders

(Watson v. Australian Workers' Union, supra: Lovell v.

Federated Liquor and Allied Industries Employees Union

_---

of

Australia, supra) and in some cases federal representation for

- 13 -

smaller

States

greater

than would be justified

on

a mere

consideration of their size, has been permitted, where there was provision in certain circumstances for a plebiscite (Crealy v. Commonwealth Bank Officers' Association (1958) 1 F.L.R. 153; cf. McLeish v. Kane (1978) 22 A.L.R. 547; Boland

V - Munro,

Federal

Court

of

Australia,

23

May 1980,

unreported) .

In Crealy's Case, supra,

at pp.157-158, the Court adopted

the opinion af O'Mara J. in Thornton v. Mackay (1945) 56

C.A.R.

561 at

p .590

in relation to the scope

of

an

organization under the Act to alter its rules:

"The nature of the provisions to be made for the

election of committees and officers is primarily a

matter

for

the

members

of

the

association

to

determine having regard to the nature of that body and the circumstances which exist in relation to its membership. The same is true of the provisions for the control of such committees by members of the

association.

"

In the case of Bicknell v. Amalgamated Enqineering Union, provided for the election of persons and bodies referred to in reg.l15(l)(d). Kerr J. commente-d? (at p.230) that whether rules provided for the election of offices was "a matter of degree to be judged in all the circumstances of the particular union and its rules". supra, the Court considered that, in the circumstances,

appointment of elected District secretaries to be the first

- 14 -

I t was submitted by Counsel that

each

organizat

ion

should composite

be

able

to

determine

i t s

s t r u c t u r e

by

providing

for

o f f i c e s

i n

t he

ru l e s

so

long

as

the

holder

of

t hose pos i t ion

o f f i ces

were e l ec t ed .

Thus,

the

ru les

could

p

rovide

tha t

the

of Branch Pres ident

car r ied

w i t h

it

cer ta in

func t ions

such

as

member of

the

Branch

Council,

Federal

Council

and

Federal

Executive.

Counsel

appearing

as

amicus

curiae

pointed

out

t ha t ,

i f

c a r r i ed

t o

ex t r emes ,

t h i s

cou ld

be

dange rous .

The

rules could appointments ,

give

not

only

execut ive

off icers

ex

o f f i c i o

but

off icers

whose

funct ions would normally

be

considered

narrow.

Even

i f th is were poss ib l e ,

I do not

doubt

t h a t p a r a . l 4 0 ( 1 ) ( c )

and

sub-s.139(4)

could

be

used

against

it

e f f e c t i v e l y

t o

p r e v e n t

a n

i n a p p r o p r i a t e

c o n j u n c t i o n

o f

pos i t i ons .

One

must

look

again

t o

the de f in i t i on s ec t ion o f

t he

A c t :

to

the

def in i t ions

o f

"d i rec t

vo t ing

sys tem"

and

" c o l l e g i a t e

e lec tora l

sys tem".

I n

conjunction

w i t h these

one

must

a l s o

read sub-s sub-s .4(1)

. 4 ( 5 ) .

The

d e f i n i t i o n

of

d i rec t

vo t ing

sys tem

i n

i s a s follows:

" ' D i r e c t

v o t i n g

s y s t e m ' ,

i n

r e l a t i o n

t o

an

e l ec t ion

fo r

an

o f f i c e

i n an

organizat ion,

means

a

method

of

e l e c t i o n a t

which

a l l f i n a n c i a l

members,

o r

a l l

f i n a n c i a l

members

i n c l u d e d

i n

such

b ranch ,

s ec t ion

o r

o the r

d iv i s ion ,

o r

i n

such

c lass ,

as i s

appropriate,

having

regard

-'-EF

the

na ture

o f

the

o f f i ce ,

a r e ,

sub jec t

t o

r ea sonab le

p rov i s ions

w i th

r e s p e c t t o e n r o l m e n t , e l i g i b l e t o v o t e . "

Thus, depending upon the

each

office

m u s t

have

an

appropr i a t e

e l ec to ra t e

nature

of

t h e

o f f i c e .

This

does

not

seem

15 -

to me to preclude a Branch electing a President both as its head and its representative at the federal level. The nature

of the office

is Branch Executive and

delegate to Federal

Council

and

Executive.

In

a federal

system

branches'

interests must be represented. Thus, the nature of an office in a federal system will often require a branch electorate because the functions are basically branch representation though the elected officer sits in a federal governing body. Indeed, I would consider that rules requiring a Branch delegate to the Federal Council or Executive to be elected by the whole Federal membership might well be held unreasonable in terms of para.l40(l)(c) (cf. Allen v. Townsend (1977) 31 F.L.R. 431 at p.471).

Moreover, the Act specifically provides that in relation to election for an office in an organization a one tier

collegiate electoral system is

permissible.

By sub-s .4(1) a

collegiate electoral system is defined as follows:

"'Collegiate electoral system' in relation to an election for an office in an organization means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from the persons elected at the next preceding

stage.

'I

- ~. "7'---

Sub-section 4 ( 5 ) expands this definition:

"For the purposes of the application

of

the

definition

of

'collegiate

electoral

system'

in

sub-section (1) in relation to an election for an

office in an organization, an electoral system that

otherwise complies with that definition shall be

- 16 -

deemed to comply with that definition notwithstanding

that the persons comprising a body

of persons by and

from whom persons are elected at any stage subsequent to the first stage include persons (not exceeding in number fifteen per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may include the office to which the election relates) but are not members of that body by virtue of an election in accordance with that definition, being persons each of whom has held such an office (whether the one office or not) at all times since being elected to such an office under a collegiate electoral system, or a direct voting system, as defined in sub-section

(1)

. I 1

The Act recognises that persons elected

to

particular

offices may be ex officio members of a body "by and from whom persons are elected". This body is not called a committee of

an electoral college its members could not

be said to hold ex

officio

"offices" on such a body. However,

as I have

previously stressed, the Act envisages that organizations have a Great deal of latitude in determining their structure. There is no indication tha.t a body by and from whom persons

are elected should not be a committee of management or other policy or management body. Indeed, it seems to me that the section i.s directed at a body which already exists and functions apart from any electoral college activity. It would

"electoral college" as it stands. Moreover, reg .l15 requires that each organization and branch of an organization provide for the election to any policy making and management bodies as well as a committee of management.

- 17 -

I consider that implicit in sub-s.4(5) is a

recognition of

a fairly typical organizational structure whereby some elected officers by virtue of their election sit in a body which functions not only as an electoral college but also as a body within one or other of sub-paras. (a) and (c) in the definition of "office". If this is the case, there can be no objection to such ex officio membership of management and policy bodies in a union, the rules of which provide only for direct election.

On this basis a differentiation can be made

between office

holders: those who are primarily elected to a body and those who are primarily elected to an executive position. Those in the latter category may, under the rules, be members of' a body. I do not think it oppressive, unreasonable or unjust under para.l40(l)(c) in this case that Federal Officers be, by their election to those offices, members of the Federal

Council and the Executive.

Indeed, rules which provided that

the Federal President should not be a member

of Council or the

Executive unless successful

at a separate election for such

membership, would necessarily give members the option to exclude the President from those bodies. I consider such rules might well be held to be unreasonable in terms of

para.l40(l)(c). The general tenor of the Act is to provide representative

-c- A

:

-

"

-

.

bodies for

the purposes of keeping industrial peace. The

reality

is a federal

system and vast and far

flung

memberships. The whole financial membership elects

four

- 18 -

persons

as

i t s Federal

Off

icers Counci l .

to

handle

day

to

day

business

and

repor t

to

the

l a rger

Federa l

The

Branches

a r e

ensured

of

r e p r e s e n t a t i o n

a t

a l l

f e d e r a l

l e v e l s

by

persons

elected

both

spec i f i ca l ly

t o

Counc i l

and

g e n e r a l l y - a s

c h i e f

execut ives

a t

t he

h ighes t

l eve l .

The

ex ten t

o f

the

o f f ices

are

explained

i n

the

r u l e s

which

a r e r e a d i l y a v a i l a b l e t o a l l

members.

I

would

answer

the quest ion

of

t he Indus t r i a l Reg i s t r a r a s

follows:

1.

D o

t he

ru l e s

s e t

ou t

above

provide

for

the

election

of

the

holder of organizat ion as required

each

off ice

(as defined

i n s.4)

with in

the

by

para . l33 (1

) ( a ) and

regula t ion

1 1 5 ( l ) ( d ) ( i ) ?

Answer: Yes.

2 . In p a r t i c u l a r :

( a ) D o ru l e s

27

and

41

contravene

para .133(1)

(a)

and

regula t ion

115 (1)

( d ) (i)

i n

so

f a r

a s

t h o s e

r u l e s

appear

to

p

rovide

tha t

persons

e lec ted

to

be Federal

Off icers

sha l l ,

wi thout

any

f u r t h e r e l e c t i o n , a l s o

be

members of

the

Federal

Council

and

Federal

Executive?

Answer:

hro.

-- -. -

L

-

:

(b)

Does

ru l e 1 1 5 ( l ) ( d ) ( i ) i n

27

c o n t r a v e n e

p a r a . l 3 3 ( l ) ( a )

and

regula t ion

so

f a r

a s

t h a t

ru l e

appea r s

t o

provide

tha t

persons

e lec ted

to

be

Branch

President

- 19 -

and Branch Secretary shall, without any further election, also be members of the Federal Council? Answer: No.

(c) Does rule 41 contravene para

.l33 (1)

(a) and regulation

115(l)(d)(i) in so far as that rule appears to provide that a person elected to be a Branch President shall, without any further election, also be a member of the Federal Executive?

Answer :

No.

3.

Do

the said rules satisfy the relevant requirements

of

paragraphs (a) and (c) of sub-s .l40 (l)?

Answer as to (a): Yes

Answer a s to (b):

There is nothing before us to suggest

the rules do not sa.tisfy para.

(c)

D

I

No.

19 of

1 9 8 0

IN THE HATTER

of

a n

a l t e r a t i o n

-____--

a f

t h e

R u l e s

of

t h e AIRLINE

-_______

HOSTESSES' ASSOCIATION

a n

o r g a n i z a t i o n

o f

e m p l o y e e s

u n d e r

r e s i s t e r e d

t h e

C O N C I L I A T I O N

A N D

ARBITRATION

-

ACT,

1 3 0 4

~~

~

-J-12

of-th;

C o n c i l i a t i o n

a n d

A r b i t r a t i o n

Act

1904)

o f

q u e s t i o n s o f

law

f o r t h e o p i n i c n

of

t h e

F e d e r a l

C o u r t

o f

A u s t r a l i a .

..

l. OCTOBER 1980

I

have had

t h e advan tage of

r e a d i n g

t h e

reasof is f o r

judgment: of

t h e Chief J u d g e end J . B .

Sweeney J . and I agree

w i t h

t h e

opinions

e x p r e s s e d

i n

t h o s e

r e a s o n s .

N o t h i n g

p u t

i n

argument .

dur ing

the

h e a r i n g

of

the

r e f e r e n c e

and

n o t h i n g

arising

from

f u r t h e r

reflection

p e r s u a d e s

ne

t o

v a r y

the

v iews

I

expressed

on

t h i s

i s s u e

i n

Sherriff I

v

Townsend

-_

( 1 9 8 0 )

3 3

A . L . R .

223

at . pp.253-255,

but

I

wou1.d make

t h e

f l i r t h e r

cor:,:mentu a

The

n a t u r e of

o r g a n i z a t i o n s h a s

been

referred

to in

a

nurnber

of

r e c e n t

dec i s i c lns

of

t h e

F e d e r a l

C o u r t ,

a n d

I

I

- 2 -

refer to some of them;

Al.len v.

Townsend

( 1 9 7 7 ) 3:

F.L.R.

. _ I I

4 3 % per Evatt and Northrop

JJ.

at p . 4 0 7 ,

--

Wiseman

v .

Professional Radio and

-

Electronics

~

.

Institute

o f A u s t . r a . i a s i a

--__I_- ___---

( 1 9 7 8 )

35 F.L.R.

2 4

per Evatt and Northrop

JJ,

a t pp.38-42,

Love11 V. Federated Liquor

_1-1

and Allied

---- Industries EmpPcyees'

Union of Australia (14781 35 F.L.R.

72 per Srcithers ani Eva t t

JJ. at p.81 and per Ncrthrop J. at pp.93-9,

--

McLeish v. ---

Kane

( 1 9 7 8 ) 22 A.L.R.

5 4 7 per J.E.

Sweeney, Evatt and Northrop JJ.

at pp-556-9, ---

Sherriff v. -.

Townsend, supra, per Northrop J. at

pp.256-7 and -

Roland v. --.___-

M U ~ K O

23 May 1980 per

E v a t t and

Northrop 35. a t pp.16-22.

Regulation

115(l) ( d ) (i) does not prescribe m.ethods

. by which su6-paragraph

elections

a r e

to word "election" is used in

be

conducted.

In

t h a t

the

contradistinction t o the word "appointment",

see Porter

-_ v.

--

A . F . U . L , E .

( 1 9 6 5 )

7

F . L , R .

3'36

per

Spicer

C.J.!

Joske

a n d

Srnithers 35. at 3 9 8 - 9 . The word "appointment:" was t h e word used in t h e equivalent provisions contained in Schedule R to the 1 9 0 4 Conciliation and Arbitration A c t . In the

Regulations from the time t h e y were

f i r s t made

in l913 u n t i . 1

1928,

the equivalent. provisions contained

ne i the r

the

word

"appointment" nor

the

wcrd

"election". The

m e t h u d s by

w h i c h

elections

are

t o

be

c o : ~ d r r c t e d a r e

prescribed

in

t h e

are not yet in operatior. .

- 3 -

T h e provisions

of

t h e Ac't

prescr ib ing

t h e methods

by which

e l e c t i o n s a r e t o ht? conducted have been

amended

frG=

time

t o

time.

T h e

s u b s t a n c e of

t h e amendments

made

i n 1 9 7 3

(Act No.

L38 of

1 9 7 3 , s.52) ,.

was t o proscr ibe

t h e c o l l e g i a t e

e lec tGra1 system a s a method by which e l e c t i o n s cou1.d be

conducted h u t t hose amendments still permitted a limited type

of

c o l l e g i a t e

e l e c t o r a l

system.

Between

1 9 7 3

and

1 9 7 6 ,

s .133(lA)

contained

expressions

hased on the assumpti.on t h a t

the

rules

of

an

cryanizatj .on v a l i d l y

cou ld

p r o v i d e

t h a t

a

o f f i c e could be a Inember of the

committee

of management of

the

organizat ion.

T h e

s u b s t a n c e of

the

amendments

made

in

1 9 7 6 (Act No.

1 1 7 of

1 9 7 6 , sect ior is 3 and 4 ) was

t o widen

the

typk

of

c o l l e g i a t e

e l e c t o r a l

syst.em

which

t h e r e a f t e r

was

t o

be

pe ra i t t ed .

Sec t ion

1 3 3 ( 1 A ) was

de le ted

and

s.415)

was

inser ted .

The

la t te r

sub-sec t ion

conta ins

express ions

whi.ch

nalte

i t c l ea r

that

Parliament

a c t e d

upon

the v iew

t h a t u n d e r

t h e

l e g i s l a t i o n

and

r egu la t i ans

t h e n

in

f o r c e ,

r u l e s

of

a n

organizat ion

val idly

could

p r o v i d e

t h a t a

perscnp by

reascn

of being

the

hcllder

of

an o f f i c e , could be a member of 3

co tmi t t cc of

nrasagernent

of

the

organiza t ion ,

I n descr ibing

t h e

bod17

which,

unde r

a

c o l l e g i a t e e l e c t o r a l

system

e lec ted

persons

t o

o f f i c e r

t h e

s u b - - s e c t i D n

provided

t h a t

the

r u l e s

?

- 4 -

A r b i t r a t i o n ,

t h e

Commonwealth

I n d u s t r i a l

C o u r t

and on the

t h e

Federal

Court

of

Aus t r a l i a

have

qiven

judgments

based

view

t h a t

i n Regulatior,

1 1 5 ( 1 ) ( d j { i )

t h e

word

"elect . ion"

i s

used

i n c c n t r a d i s t i n c t i o n

t o

t h e word

"appointment"

and

does

n o t presc r ibe methods

by which

e l e c t i o n s

a r e

t o be

conducted.

On

a t

l e a s t

two

o c c a s i o n s ,

namely

i n

1 9 7 3

2 n d

1 9 7 6 ,

Parliament

has

passec!

legislaticn

based

t h e acceptance

of

t h a t view.

I n my

opinion,

t h a t v iew of

t h e e f f e c t o f

Regulation

1 1 5 ( L ) ( a ) ( i ) is

c o r r e c t .

The

r u l e s

of

t h e

Airline

Hcstesses '

P - s scc i a t i cn

m a k e

p r o v i s i o n

f o r

committees

nanagement

of

of

t h e

Asscc ia t ion ,

fo r

f ede ra l

o f f i ce r s

~f

t h e

Association

5r.d

f o r

a

f e d e r a l

c o u n c i l

empowered

t o

d e t e r m i n e

p o l i c y ,

w h i c h

c o l h c i l

is

a l s o a

conmittee of

management

w i t h i n

tne

c j e f ined

meaning

of

t h a t phrase.

The

r u l e s of

t h e Association

p r o v i d e

t h a t t h e members of

the committees of managencnt ? r e persons

who

are

the

ho lders

of

o f f i c e s

w i t h i n

t h e

d e f i ~ e d

meaning of

t h a t word

e n t i t l i n g them

t o membership

of

t h e committees of

management.

The

r u l e s of

the

Associat ion

def ine

t.hosc?

perscns

by

reference

to them

being

t h t . ho lde r s of

f e d e r s ?

o f f i c e s

and

the

holders

af

o f f ices

h c i n g

b ranch

d e l e q a k e s .

Two o f the

branch

d e l e g a t e s

f r o n

each

b r a n c h

a r e

t h e

branch

o f f i c e r s

f o r provi.de

each

br?ncr-! o f

the

Association..

The

r u l e s o f

the

Association

fc;

t h e

h o l d e r

of

each

of

t h o s e

o f f ices ,

w i t h i n

t ' le

d e f i n e d

neaning

o f

"L3.t

word,

t o

be

e l e c t e d t o

t h o s e o f f ices by

a

xiethod

which

i s not:

cont ra ry tr;

- 5 -

the Conciliation and Arbitration Act.

None of those pcrsons

-I--

II

_--__-_--_--

h a s been. a p p o i n t e d to t h e office held.

It

fallows therefore

t h a t

the

r u l e s of the

Asssociation

make

provision for the

election of the conmittees of management- and of the officers of the Asscciation, T h e y d~ not make provision for the

appointment of committees of management and of

t h e o f f i c e r s

G € t .he Assoc ia t ion .

In

t h i s respect

t h e ru les of

the

Association azse

not contrary to Segulstion liS(1) ( a ) (i) .

I ag.ree with the answers prcposed by the Chief

J u d g e .

. . . -

I N THE FEDERAL COURT O F AUSTRALIA

)

\

No . 19 of 1980

VICTORIA

D I S T R I C T

REGISTRY

INDUSTRIAL

D I V I S I O N

1

IN THE MATTER of

an

a l t e r a t i o n of

t k

Rules of the Air l ine

Hostesses'

Association an organization

of

employees

r eg i s t e red unde r t he

Conci l ia t ion and Arbi t ra t ion

A c t ,

15

REFERENCE BY THE INDUSTRIAL, REGISTRT

(pursuant to Sec t ion

112

of the

Conci l ia t ion and Arbi t ra t ion

A c t ,.

1s

'of

ques t ions o f l aw for the op in ion

of

the Federal Court

of

Aus t ra l ia .

REASONS FOR JUDGMENT

EVATT J.

1 October 1980

The

r e fe rence he re in by t he Indus t r i a l Reg i s t r a r

made

pursuant to

s.112

of

the Conci l ia t ion and Arbi t ra t ion

A c t ,

1904

( t h e A c t )

r a i s e s ques t ions

of

law for determination by the Court

i n r e l a t i o n t o c e r t a i n r u l e

amendments

adopted by the Airl ine

Hostesses ' Associat ion an organizat ion regis tered under the

A

c

t

.

Basically

the ques t ions

for determination

are;

do

such ru le

amendments

sa t i s fy the requi rements

of

s . l 4 0 ( l ) ( a ) and

s . l 4 O ( l ) ( c )

of

t h e A c t ?

Such

ru l e s appea r t o p rov ide

(1)

t ha t pe r sons e l ec t ed

t o

be

Federa l Off icers sha l l wi thout any fur ther e lec t ion

be

members

of the

Federal

Council

and

Federal

Executive,

( 2 )

t ha t

pe r sons

e l e c t e d a s

Branch

Pres ident

and

Branch

Secre ta ry respec t ive ly

s h a l l w i t h o u t f u r t h e r e l e c t i o n

be

members

of

the Federal Council

and

(

3

)

t ha t pe r sons e l ec t ed a s

Branch Presidents shal l

wi thout

any

f u r t h e r e l e c t i o n

be

members

of

the

Federal

Execut ive.

Do

.

J 2 . .

- 2 -

such r u l e s o f f i c e ( a s d e f i n e d i n s . 4 o f t h e

provide for the e lec t ion of the ho lder

of

each

A c t )

wi th in the o rganiza t ion

as requi red

by

s . l 3 3 ( l ) ( a ) o f t h e

A c t

and

Reg.

1 1 5 ( l ) ( d ) ( i )

made

thereunder.

The

p a r t i c u l a r r u l e s a r e f u l l y

set

o u t -

i n

the reasons for

judgment

of

Sweeney

J . ,

which

I

have had the

advantage

of

reading.

Further

,

re levant

sect ions

of

the

A c t

a r e set have also had the advantage of reading.

o u t i n t h e r e a s o n s f o r

judgment

of

Bowen

C . J .

which

I

.

_

-

I n S h e r r i f f

& O r s ,

v.

Townsend & O r s .

(V.

No.12

of

1979)

( i n t e r a l i a )

30 A.L.R. for the composition of the Federal

223

a

chal lenge

was

made/to

t h e c e r t i f i e d r u l e p r o v i d i n g

Council

of the Vehicle Builders

'

Employees

Federat ion of Austral ia an organizat ion regis tered under

the A c t .

Rule l ( b ) of the rules

of

that

organizat

ion

provided:

" l ( b ) The

Federal

Counci

l

shal

l

consis

t

of

:

(i)

Two

delega tes

from each

Branch

elected

as prescr ibed

i n Rule

4

n e i t h e r of

whom

s h a l l be

the Sec re t a ry

of

such Sec re t a ry fo r t he

Branch.

(ii)

The

time

being of

each

Branch

of

the Federal

Federation;

(iii)

The

Secretary of

the Federat

ion;

( i v ) The

Assis tant

Federal

Secretary of

the Federat

ion."

The

c la imants '

cha

l

lenge

to

the

ru

le

was ,

for

r e l evan t

d i scuss ion ,

two-pronged:

f i r s t , that

sub-rule

l ( b ) ( i )

c rea t ed

an

inval id imbalance in the

number

o f de l ega te s t o

Federal

Council

from Branches,

the membership of which var ied

from Branch

t o Branch

and

accordingly contravened s . l4O(l)(c)

of t he A c t (see McLeish v. Kane (1978)22 A.L.R.

547)

and

secondly,

t h a t s u b - r u l e l ( b ) ( i i ) p e r m i t t e d

a

Branch

Secretary,

a

l

though

.

./3..

- 3 -

e l e c t e d t o t h a t o f f i c e , t o

be

a

n-ember

of the Federal Council

without being e lected

a

Counci l lor as required

by

s . l 3 3 ( l ) ( a )

and/or

R e g . l 1 5 ( l ) ( d ) ( i ) and

accord ingly

cont

ravened

s . l40( l ) (a )

of

the

A c t .

The

Court

in tha t case unanimous ly he ld tha t ,

i

n

acco rdance w i th t he p r inc ip l e s r e f e r r ed t o i n

McLeish

v.

Kane(supra

t h e whole

of

r . l ( b )

p rov id ing fo r t he cons t i t u t ion o f t ha t Fede ra l

Council

was

c o n t r a r y t o s . l 4 0 ( l ) ( c ) f o r t h e r e a s o n s t h e r e i n e x p r e s s e d

in r e spec t o f t he o rde r s sough t i n pa ra s . 4 ,

S

and

6

o f t he ru l e

t o show cause.

In She r r i f f

v.

Townsend

(supra) I

s t a t e d @ p.246:-

"Paragraphs

9 ,

10

and

11

( o f t h e r u l e t o

show

cause)

s e e k o r d e r s t h a t r . l ( b ) ( i i ) c o n t r a v e n e s s . l 4 0 ( l ) ( a )

of the

A

c

t

in tha t such sub- ru le p rovides tha t the

secre ta r ies o f the var ious b ranches

of

t he o rgan iza t ion

s h a l l be

members

of

i ts Federal Council

without

any

of such secre ta r ies be ing e lec ted wi th in the

meaning

of the

A

c

t

and Regulations thereunder,

to

hold

the

o f f i c e of

a

Federal

Councillor.

I

have

already

e x p r e s s e d t h e v i e w t h a t r . l ( b ) ( i i )

i s

c o n t r a r y t o

s . l 4 0 ( l ) ( c ) as

b e i n g c o n t r a r y t o t h e p r i n c i p l e s

set

o u t i n

McLeish

v.

Kane(supra)

if r . l ( b ) ( i ) i s s t r u c k o u t ,

b u t

having regard to the proposed

scheme

approved

by

the cour t under

s.171D

of the

A c t ,

and

as

grounds

9 , 10

and

11

were

f u l l y a r g u e d t h e c o u r t ' s

view thereon should

be s t a t e d .

I am

of

the

view

that

such

sub-rule

is

cont ra ry

t o s . l 4 0 ( l ) ( a )

and

agree wi th the reasons for

judgment

i n

t h i s r e g a r d

of Smithers

J."

The

ques t ions

set

ou t i n t he p re sen t r e f e rence have

r a i s e d i n

more

d e t a i l t h e

issues

ra i sed in paragraphs

9 ,

10

and

11

of t h e r u l e t o had the benefi

show

cause

in

Sher r i f f

v .

Townsend

( s u p r a ) .

Having

t

of

the

detai

led submissions concerning the his

tory

o f . t h e r e l e v a n t s e c t i o n s

of

t he

A c t ,

Schedule

B

and

the Regulations

made

ucder

t h e

A c t

together with further argument thereon,

it

i s

- 4 -

c l e a r ,

i n

r e t r o s p e c t , t h a t t h e i s s u e s r a i s e d

i n

t h e s a i d p a r a s .

9 ,

10

and

11

i n

this regard had not been ful ly argued other

than by the

c la imants

there in .

Those

claimants,

through’

their

l e g a l a d v i s o r ,

w e r e

g iven an oppor tuni ty to fur ther a rgue the

i ssue before th i s Cour t bu t such oppor tuni ty

was

apparent ly

decl ined

by

them

as t hey

made

no

r eques t fo r l eave t o i n t e rvene

here in .

The submissions

and

arguments

of

Counsel

i n t h i s

reference have persuaded

m e

t ha t t he d i c t a exp res sed

by

m e

i n

She r r i f f

v.

Townsend

( s u p r a ) t h a t r u l e

l(b) (ii)

of

the

ru

les

o

f

the Vehicle Bui lders’

Employees

Federat ion of Austral ia did not

accord with the provis ions

of

s . l 3 3 ( l ) ( a ) a n d / o r R e g . l 1 5 ( l ) ( d ) ( i )

and consequent ly contravened s . l40(l) (a) of the

A

c

t

i s

inco r rec t .

I

ent i re ly agree wi th the reasons for

judgment

of

Bowen

C . J .

and Sweeney J. here in .

I f u r t h e r

a g r e e

t h a t

t h e

answers

to t he ques t ions a sked

by the reasons for

the Regis t ra r should be in

accordance wi th those se t .ou t

i

n

judgment

of

Bowen

C. J.

IN THE FEDERAL COURT

OF AUSTRALIA )

1

VICTORIA

DISTRICT

REGISTRY

j

NO. 19 of 1980

1

DIVISION

INDUSTRIAL

1

IN THE MATTER of the Conciliation and

Arbitration Act,

1904

AND IN THE MATTER of an alteration of

the rules

of the AIRLINE HOSTESSES'

ASSOCIATION, an organization

of employe

registered under the said Act

AWD IN THE MATTER of a reference by the

Industrial Registrar pursuant to

s.112

of the said Act

of questions of law for

the opinion of the Federal court

of

Australia

CORAM: Bowen C.J.

Smithers J.

J.B. Sweeney J.

Evatt J.

Northrop J.

1 October, 1980

REASONS FOR

JUDGMENT

J.B. SWEENEY J.

This is a reference by the Industrial Registrar

of certain questions

of law. The questions have arisen on an

application by the Airline Hostesses' Association ("the

Association't) for certification

of a new set

of rules pursuant

to s.139(4) of the Conciliation and Arbitration Act,

1904 ("the

Act"

) .

The particular proposed rules in question are rules

27,

41 and 55(a) which read:

2.

27. FEDERAL COUNCIL COMPOSITION

The Federal council shall be composed

of:

(a)

the Federal Officers who shall be the Federal President, the Federal Vice- President and the Federal Secretary.

(b)

Branch delegates who shall

be the

President and Secretary

of each Branch.

(c) additional delegate or delegates from

a

branch or branches on the following

basis:- .

Membership

Branch

Representative

200 - 399

1

400 - 599

2

over

600 and

3

41 .

COMPOSITION OF FEDERAL EXECUTIVE

The Federal Executive shall consist of the following:

(i)

Federal

President

(ii)

Federal

Vice-President

(iii) Federal Secretary

(iv) the occupier for the time being of the

position of Branch President of each

Branch or her proxy.

55.

ELECTION OF FEDERAL OFFICERS

- GENERAL

(a)

Elections for the position of Federal President, Federal vice-President and Federal Secretary shall be conducted

by secret postal ballot

of all finan-

cial members

of the Association

eligible to vote, in accordance with

these rules.

There are also proposed branch rules which raise the same

questions. The particular questions referred to are:

(1) Do the rules set out above provide for the

election of the holder

of each office

(as

defined in section

4) within the organization

as required by section 133(l)(a) and regulation

115(1) (d)

(i)?

(2) In particular:

3.

Do rules 27 and 41 contravene section 133(l)(a) and regulation 115(l)(d)(i) in so far as those rules appear to provide that persons elected to be

Federal officers shall, without any further election, also be members of the Federal Council and Federal Executive?

Does rule

27 contravene section 133(l)(a)

and regulation 115(l)(d)(i) in so far

as that rule appears to provide that

persons elected to be Branch President

and Branch Secretary shall, without any

further election, also be members of the

Federal Council?

Does rule

41 contravene section 133(l)(a)

and regulation 115(l)(d)(i) in

so far as

that rule appears to provide that

a person

elected to be Branch President shall, with-

out any further election, also be

a member

of the Federal Executive?

(3) Do the said rules satisfy the relevant requirements

of paragraphs (a) and (c) of section

140(1)?

The scheme of the Act provides for the registration of

organizations which thereupon become corporations. By their

very nature corporations must have some officers and some

controlling body or bodies.

The Act in

s.132 requires organizations to have rules

which comply with the requirements of reg. 115. In addition

there are various other provisions in the Statute prescribing

in some cases what must

be, in other cases what may not be

provided for in the rules.

In general, however, the particular

structure which it wishes to adopt is left to the organization

concerned. This perhaps is inevitable having regard to the

vast disparities and differences in size, geographical areas

covered and other matters between organizations.

4.

At the hearing before us the Australian Council

Unions sought and was given leave to appear by counsel for its

constituent bodies. We were advised that the great majority

of organizations had rules which provided, as did rules of

the Association, for persons elected to particular offices

to be members of the Committee of management and of other

councils or conferences of the organization. The particular

examples varied, but the general pattern appeared to be that

a committee of management would comprise persons elected as

of Trade

general secretary, general president and the like and

a number

of delegates from the branches. Mutatis mutandis similar

provisions exist for branches.

Some other organizations appeared and we also had the

benefit of submissions made by counsel for the Attorney-General

of Australia appearing as amicus curiae. The hearing

of the

reference was listed before

a bench of

5 judges in view of the

importance of the issues.

It is convenient next to set out the structure of the

Association and to examine the proposed rules against that

background

-

The Association is an organization arranged in branches.

It has members and branches throughout the Commonwealth. AS required by s.132 and reg. 115, its rules if certified will provide for a committee of management of the Association and

each branch, for officers of the Association and of each

branch and for

a council, additional to the committee of

5.

management, empowered to determine policy and exercise

functions of management. The federal officers are the federal

secretary, federal president and the federal vice-president.

The duties and powers of the federal secretary provide

that she

is to attend all meetings of federal council and

federal executive and she has other duties in respect to them.

she also has duties with respect to property of the Association

including a duty to deliver up to the federal president on

vacating office, or when

so directed, all books, documents,

papers and other property of the federation. The rules also

prescribe that she is to receive monies payable to the federal

council (rules 26, 18, 17, 15, 14, 9) .

The duties of the federal president include presiding at

meetings of the federal council and federal executive and

preserving order and other consequential duties (rule

24).

Rule 25 provides that the federal vice-president shall

preside at meetings in the absence of the federal president

whether for the whole or part of

a meeting and that she shall

assist the federal president in the conduct of and preserving

order at meetings.

The rules provide for

a federal executive which is to be

the committee

of management of the Association (rule

40).

It is to have the care, control, superintendence, management

and administration of the affairs and property of the

Association. It is to interpret and enforce the general policy

of the Association as decided by federal council and decide

6.

questions of policy not covered by federal council decisions. federal vice-president, federal secretary and the occupier

for the time being

of the position of branch president of each

branch (rule

41

) .

The rules also provide for

a federal council. It is to

consist of the federal president, the federal secretary and

the federal vice-president, the president and secretary of

each branch and an additional delegate or delegates from a

branch, (the number depending on the membership of each

branch).

The federal council meets annually, is the rule making

body (rule

70 and 21(b)), has managerial functions (rule 21(a)

and rule

2 0 ) and is

a policy making body.

The federal officers are elected by secret postal ballot

of all financial members (rule

55), as are the branch officers

by branch members.

Each branch has

a branch president, branch vice-president

and a branch secretary, all of whom are elected by secret postal ballot of the branch members. In addition there are branch councillors the number of whom is to be determined by

the branch, but will be at least

4 and not more than

17.

They too are elected by secret postal ballot by members of

the branch. The branch delegates to federal council additional

to the president and secretary are elected by secret postal

ballot of the branch members. The branch council

has powers,

7 .

inter alia, to control, superintend and manage the affairs of

a branch (branch rule

3 ) .

The branch secretary's duties prescribed are that she is to attend all general and council meetings of the branch and she has duties in respect to monies received by her and other

property of the branch.

The branch president's duties prescribed are that she

shall preside over all general and council meetings of the

branch and preserve order and give her

a deliberative vote

and if necessary

a casting vote at any meeting (branch rule

4).

The branch vice-president, in the absence of the branch

president, is to preside over all meetings of the branch

with full powers of the branch president (branch rule

5).

It is clear then that the federal president, federal vice-

president and federal secretary and like officers of

a branch

all hold office within the meaning of par.(aa) of the

definition of "office". In addition, the federal officers

hold office within the meaning of par.(a) of the definition as

members of the committee of management of the organization.

The branch officers hold office within the meaning of those

paragraphs of the definition.

.In addition, the federal

secretary and branch secretary are persons holding, whether as

trustee or otherwise, property of the organization or branch

and hold office within the meaning of par.(b) of the definition.

8.

It is clear from the rules that the federal executive is

a committee of management within the definition of "committee

of management" in

s.4 of the Act. In addition the federal

council is, under the rules of the organization, empowered to

make, alter or rescind rules, to enforce rules and to exercise

any of the functions of management.

So too is the branch

council.

Membership of each of these bodies then makes the person

concerned an officer or the holder of an office within the

meaning of par. (c) of the definition in

s.4 of the Act.

Moreover, since each of these offices is one within the

organization or branch for the filling

of which an election

is required to be conducted within the organization or branch, each such person is an officer within the meaning of par. (d)

of the definition of office.

The reference made by the Industrial Registrar raises

the question whether the amendments sought may offend against

s.140(1) of the Act in that they may

be contrary to or fail

to make

a provision required

by s.l33(l)(a) or reg. 115(l)(d)

of the Act.

In considering the questions referred to it is necessary

to look at the history of amendments to this

so frequently

amended statute.

Section 132 provides that the conditions to

be complied

with by associations seeking registration and

by organizations

shall be as prescribed.

9.

Regulation 115(l)(d) has at all material times prescribed

for each:

I t . . .

that the affairs

of an association must be

regulated by rules providing for

-

(i) the election of -

( A )

a committee of management of the

association and

of each branch

of

the association;

(B) officers of the association and of

each branch

of the association: and

(C) any conference, council, panel or other

body (additional to the committee of

management), which is empowered to

determine policy or to exercise functions

of management in the association or

branch :

In considering both the regulation and the relevant

sections it is necessary to have regard to the definition of

"office". This was first inserted in

s.4 of the Act by Act

No. 28 of 1949 in the following terms:

"'Office', in relation to an organization or branch

of an organization means

-

the office of a member of the committee of management of the organization or branch;

the office of a person holding, whether as

trustee or otherwise, property of the

organization or branch, or property in

which the organization or branch has any

beneficial interest; and

every office within the organization or branch

for the filling

of which an election is

conducted within the organization or branch;".

No. 18 of 1951 added sub-section (aa) to the definitio;

"(aa) the office

of president, vice-president

secretary, assistant-secretary or other

called, of the organization or branch;"

executive officer, by whatever name

10.

This Act also introduced s.70A, the forerunner

of s.133.

Act NO. 138 of 1973 omitted sub-paragraph (c) from

the definition of "officeJ' and substituted the following

paragraphs :

(.c) the office of

a member of any conference,

council, committee, panel or other body

within the organization or branch, which

under the rules of the organization or

of the branch is empowered to make, alter

or rescind rules or to enforce, or perform

functions in relation to the enforcement

of,

rules or to exercise any of the functions of

management;

"(a) every office within the organization or branch

for the filling of which an election is

required to be conducted within the organization

or branch and any position within the organiz-

ation or branch involving duties substantially

similar to the duties of such an office; and

"(e) in the case of an organization that was regist-

ered immediately before the date of commence-

ment of this paragraph or

a branch of such an

organization, every office within the organiz-

ation or branch for the filling

of which

under rules in force immediately before that

date, an election was required to be conducted

within the organization or branch and any

position within the organization or branch

involving duties substantially similar to the

duties of such an off ice;

It ;

This Act also amended

s.133.

Act No. 117 of 1976 omitted pars. (d) and (e) from the

definition of "Officett

and substituted a new par. (a).

".{d) every office within the organization or branch

for the filling

of which an election is

required to be conducted within the organiz-

ation or branch:

'I ;

11.

This Act also amended

s.133.

In addition to the definition of "Office" it is helpful to consider the history

of the present

s.133. Its predecessor

was inserted in the Act as

s.70~

by Act NO. 18 of 1951. It

provided that in addition to the conditions referred to in

s.70 (now s.132), the conditions to be complied with by

associations seeking registration and by organizations include

a condition that the rules relating to an election specified

in par. (a), (aa) or

(b) of the definition of

tlOfficett

should

provide that the election to an office be by secret ballot.

It left open the question of the provisions

to,be

made for an

election coming within par. (c) of the definition. The word

Iteacht1 was not used.

In 1973 the section, by then renumbered

s.133, was further

amended.

AS already set out, the definition of "Office" was

materially altered by the same Act

No. 138 of 1973 and one

paragraph substituted and two new ones added to it.

Section 133 as amended prescribed that the conditions

to be complied with

by associations seeking registration and

by organizations should include

a condition that the rules

should provide for the election of the holder of each office

by secret ballot of all members eligible to vote. It also

provided in S.S.

( 1 A ) for cases where the rules of an

organization provided for the filling of an office "being an

office the holder of which is

a member of the committee of

management but the duties of which are part-time".

12.

In 1976 the section was again amended by Act No.

provided that in the case of an association applying for

registration after the commencement of the sub-section, the

6 4 of

1976.

This amendment inserted

a new par. (l)(da) which

rules must provide that every election for an office of

a kind

refer'red to in par.

(a), (aa), (b) or (c) should be by postal

ballot. New s . 1 3 3 ~ ~ was also inserted, providing that elections to offices within pars, (aa), (b) or (c) of the definition of

office in

s.s.( l) of s.4 should be by secret postal ballot.

By Act No. 117 of 1976 there were inserted new definitions

of collegiate electoral system and direct voting system. There was also inserted an amendment of the definition of "Office"

and a new sub-clause

5 was inserted in

s.4.

This sub-clause made provisions relating to the definition

of collegiate electoral system, but referred to persons comprisin

a body of persons by and from whom persons are elected to an

office and referred

to persons who are holders of offices

entitling the holders

to membership of that body.

Section 133 was amended to require that the rules of an

association applying for registration and an organization

should provide for the election of the holder of each office

by secret ballot of members or by

a type of collegiate system.

It also omitted s.s.(lA) of

s.133.

The questions asked by the Registrar appear to have been

occasioned by the judgment of this Court in Sherriff

v. Townsend,

of 3 April 1980.

In that case

a particular proposed rule

13 .

providing that secretaries of branches and the federal and

assistant federal secretary should be members of the federal

council was considered. All members of the Bench held that

the rule was invalid in that it provided for equal represent-

ation of branches with very great differences in membership.

Sn?ithers J. then proceeded to deal with another attack

on that rule. He said:

"The effect of the provisions of rule l(b)(ii), (iii)

and (iv) that the Branch Secretaries and Federal and

Assistant Secretary shall

be members of Federal Council

invested with an additional office, namely that of

member of the Committee of Management namely, the

is that each of the persons holding those offices is concerned can be filled only by that person. Never-

theless the office that

he takes is in all respects

that of a member of the Committee of Management. And

it is clear that the rules do not provide for the

holding of an election of the person concerned to that

office. They only operate to fill the office of

a

person has been elected to another specified office.

member of the Committee of Management when some to the designated executive offices shall accede to the office of member of Federal Council without election thereto. The effect of the rule in question

is to create

a position on the council that is

essentially an office and to prescribe that it will

be filled without an election by

a nominated person.

It is not too much to say that the rule does the very

thing which the statute and regulations are designed

to avoid, namely the accession to any particular

elective office

by some means other than by election."

Evatt J. without deciding the issue, expressed

a view

in agreement with the reasons for judgment of Smithers

J.,

while Northrop

J. was of the view that the second ground of

attack on that rule was not made out.

14.

The present matter has been much more fully argued before

us and while

I have given full and careful consideration to

the judgment of Smithers

J., on the point

I find myself unable

to agree with it.

I turn first to reg.

115 and the question is whether that

regulation, set out earlier in this judgment, requires

separate elections in the manner

I have set out later. The

regulation has been in its present form for

a very considerable

time. There have been many instances of registered rules being

considered by the conciliation and Arbitration Court, the

commonwealth Industrial court and this court where such rules

provided that persons elected to an office such as federal

secretary should, by virtue of holding that office be

a member

of the committee of management and other bodies. Instances where the question was litigated before the Commonwealth Industrial Court are Crealy v. Commonwealth Bank Officers'

Association, 1 F.L.R. 153; Mackenzie v. Administrative and

Clerical Officers' Association, Commonwealth Public Service,

5 F.L.R. 342; while two instances

of its litigation in this

Court are Eqan

v. Maher, 35 F.L.R. 197; McLeish v. Kane,

36 F.L.R. 80.

While it is true that the specific point now raised was

not taken in any of these cases,

I do not think

I should

ignore this history. As was said by the High court

of

Australia in The Queen

v. Kirby and others; Ex parte

Boilermakers' Society

of Australia, 94 C.L.R. 254 at 296:

15 .

"such matters as judicial dicta, common assumptions tacitly made and acted upon, and the fact that

legislation has passed unchallenged for

a consid-

erable period of time, may be regarded as raising

a presumption which should prevail until the

judicial mind reaches

a clear conviction that

consistently with the Constitution the validity of the provisions impugned cannot be sustained. But they cannot be regarded as doing more."

A like presumption should in my view operate when considering

rules and their validity. They are questions which have long

been litigated.

In one other case Bicknell

v. Amalgamated Enqineerinq

Union, 15

F.L.R.

215, the matter was more directly dealt with.

Questions were argued as to the validity of certain rules

of

that organization. These rules were described as follows

-

"The rules as amended on 1st October,

1968, create

the office of State secretary, the holder of which

is a member of State conference and State council.

He is the executive officer of these bodies."

"There is no express provision in the rules that

the state secretary is

a full-time officer but it

seems clear that

he must be. Rule 29(2) provides

that he shall for all purposes be the main executive any branch and at any meeting of members in the state but shall have the power to move and second motions

and administrative officer of the union in the State.

and to cast

a vote only at meetings of his

own branch,

at the State conference and at meetings

of state

council. This rule clearly contemplated that

he will

be a member of State conference and state council.

As secretary

he is

given a wide range of duties."

The Court said of the then reg. 115(l)(d)

-

"Regulation 115(l)(d) does not in terms state that

the rules shall provide that every office shall in

all circumstances be filled by election. Accord-

ingly a rule providing for an appointment in

16.

special circumstances does not inevitably contravene

the literal requirements of reg. 115(l)(d). Where

there is such

a rule the question is whether not-

withstanding its presence it can be said of the

organization that its affairs are regulated by

rules which, looked at in their entirety, provide

for the election of the specified bodies and

officers

.

It added that the question was whether the rules looked

at as a whole may fairly be said to provide for the election

of the specified committee and officers.

I agree with this

view of reg.

115(1)

(a).

If the regulation is

so interpreted in the manner

I have

indicated, the rules as proposed will provide beyond any doubt

for election to particular offices, such as that of secretary,

etc., and will also provide for the election of such of them

as fall within par.(d) of the regulation. The rules will also

provide for

a committee of management consisting of those

persons elected directly to it and persons elected to offices

to which the rules attach powers and duties such as membership

of the committee

of management, the holding of property within

the meaning

of par,(b) of the definition and the membership

of the bodies set out in par.(c) and (d) of the definition of

"office" so far as the rules of the organization make

provision for those bodies.

The whole of the rules then seem to me to provide for

the election of

a Committee of management and of officers

and of conferences, etc. within the meaning of reg-115.

In my view it cannot be said that the new rules would not

provide as is required

by reg.115 and they are not therefore

in disconformity with

s.140 of the Act.

17 .

Once it is accepted that the Act intends the organization

to choose its

own structure, subject to requirements spelt out

in the Act and regulations, and once it is accepted that

members have easy access to the rules of the organization, it

seems to me fair to assume that at times of election they will

certainly know the consequences of voting for

a particular

candidate for particular office. Section

188 of the Act

provides that

a member must be supplied with

a copy of the

A c t

which

dec la re s

f u l l p a r t i c i p a t i o n

t o

be one

of

t h e

ch ief

ob jec t s of

t h e Act,

it is more than

l i ke ly rules t o be enacted

t ha t

Pa r l i amen t

would have

intended

that

the

under

regula t ion

115(1)

( d ) ( i)

, and

i n accordance w i t h s.133 would

provide

€or

e

lect

ions

concerning

w h i c h

t h e

persons

concerned

would

ac tua l ly

unders tand

the

f u l l

impact

of

what

was

put

before them.

I t is not d i f f i c u l t to

ach ieve .

I n

t he

l i gh t

o f

t he

sub jec t

ma t t e r

namely,

f u l l

p a r t i c i p a t i o n

by

members,

t h e

f ic t ion

involved

i n a

s i t u a t i o n

where

knowledge

is “deemed” t o e x i s t ,

is qui te

ou

t

o

f

p lace .

I t is important

that

organizations

have

membershi?

i n many

cases

well

exceeding

1 0 0 , 0 0 0 ,

w i t h

members

d i s t r i b u t e d

a l l

o v e r

A u s t r a l i a ,

of

whon

many

a r e

t r a n s i e n t

i n

t h e i r

membersh ip ,

pe r sons

o f

l imi t ed

educa t ion

and

poss ib ly

l i t e r a c y .

It

is

q u i t e

u n r e a l

a c t

t o

by

r e fe rence

t o

knowledge which those members a r e deened t o have

because

they

a re deemed t o have read the rul.es.

I n the end t h s situation remains that an e l e c t i o n is

an

event

complete

i n

i t s e l f ,

t h a t

an

e l e c t i o n

f o r

Federal

.. .

39.

?

Secretary or Branch President or Branch Secretary is not an election for membership of the Federal Council, and that what a knowledgeable member of the Association really knows is

under the rules of that Assocation the

persons elected to the

Positions mentioned will

accede to membership of Federal

Council without being elected thereto.

What the rules to be made pursuant to regulation 115(1) (d) (i) must provide for are elections for the positions within the categories A, B and C thereof which will be, in fact, elections for those positions. Whether the elections provided for by the rules will in fact be elections for thcse positions may be determined by reference to the terms used in

the cdnduct thereof. If the terms in which

nominations are

called and in which the contents of the ballot papers are expressed indicate with reasonable clarity the position for which nomi.nations are called and for which the candidates are standing, then, with respect to those positions it would be appropriate to make a finding of fact that the successful

candidates were elected

to

those positions, and such

elections would carry the privileges and entail

the

perforriance o f the functions reasonably understood to attach

to those positions.

In these

reasons I have assumed thzt rules which

provide that t h e same person is to h o l d more than one office, and for the holding of what may be described as a single

. .

election for the purpose of electing one person to more than one office, would be valid. Rut this may not be so. it is not clear that such rules would not infringe a right of any member to stand for any position in the organization. It is

possible that a rule the

effect of which is that a member

can

o n l y stand for a particular position if he

is

willing also

to stand for

some

other position or positions

might

be

regarded as an unreasonable fetter upon

his right to stand

for

a

particular office,

and

thus prejudice his full

participation in the

affairs of the

Union.

If this be

so

rules which result in

no election being held

at a l l for

various positions offend

this principle much more seriously.

:

'

The discussion in these reasons concerning the

validity of an election

for a position having

a particular

name but which embraces some other

and

quite separate

position, or a single election to choose

one man €or more

than one office, does not require

a final answer for the

purposes

of

the

questions

which have been asked by the

Registrar in this case,

The rules of the Airline'Nostesses'

Association do not

provide

for

any

such

election.

The

relevance of

the discussion is that it might

be thought

merely

a

technical exercise to declare the Association's

rules invalid

if the sanie objective could be achieved with

respect say, to the pDsition of Secretary, by defining his powers and duties as the powers and duties of the position of member of the Federal Council and the Executive. However it

41 .

t

is not a

technica l i ty because ,

if my

view

is c o r r e c t ,

namely,

t h a t

an

e l e c t i o n

i n

s u c h

a

s i tua t ion

could

on ly

p roceed

i f

t h e nature

of

t h e two

of f ices involved

were

d isc losed

and

t h e

ba l lo t

pape r s

make

t h e

pos i t ion

c lear ,

then

those

vo t ing

would

know

what

p o s i t i o n s O K

o f f i ces t hey

were

vot ing for

and

t h e y

might

judge

the candidates

accordingly.

There

has

been

an

e l e c t i o n

i n f a c t f o r

t h e posit ions

concerned.

Having

r 'egard

to

t h e

h i s t o r y

of

t h e

s t a t u t o r y

provis ions,

including

t h e

s t a t u t o r y

r e g u l a t i o c s

from

1910

onwards,

there

i s

a

s t rong

impl ica t ion

tha t

t h e

Act

assurnes

t h a t t h e "Secretaryn

d u t i e s

of

o f f i c e r s

w i t h

t i t les, t r a d i t i o n a l

nPresident"

and

i n

p a r t i c u l a r ,

and

t h e

o t h e r

t i t l e s

of

t r a d i t i o n a l

e x e c u t i v e

o f f i c e r s ,

a r e

t h o s e

w i t h i n

t h e

limits which those t i t l e s imply

according

t o

the i r

o r d i n a r i l y

understood connotation.

Accordingly a r u l e which provided

for

an

e lect ion

f o r

an

o f f i c e w i t h

s p e c i f i e d d u t i e s ,

by

a

name

which

dit!

not

reasonably

ind ica te

tha t

the

o f f ice

concerned

d i d

r e l a t e

t o

t hose du t i e s ,

would

not

provide

€or

an

e l e c t i o n

i n respect

of

t h a t . o f f i c e ,

w i t h i n

t h e meaning

of

regula t ion 115(1)

(a) ( i ) .

Spec ia l Pos i t ion

of

Pres ident

The

e l e c t i o n s

f o r

Federal

President ,

Secretary

and

Vice

-President

provided

f o r

i n t h e rules of

t h e ,Association

.

4 2 .

are elections in which, by reason o€ allocation of powers and duties to those officers are elections in which the titles of

the positions correspond with the traditional

functions of

posit.ions so entitled.

But because of the very nature of the

position of President an

election conducted for that position

requires special consideration. All his duties and functions including Co'uncil and Federal Executive duties and his other functions are really aspects of the position of President falling within the ordinary concept of the duties and

functions of a President of an organization. Of course in this case the duties and functions allocated to the President by the rules coincide with those ordinarily attributed to a President. According to the Oxford English Dictionary a President is one "appointed or elected head of a temporary or permanent body of persons who presides at their meetings and proceedings" Also he is "the head or chief of an advisory council or administrative board or department of government, €or example The Lord President of the Council, The President

of the Board of Agriculture, of Education or of Trade."

In relation to a body like an organization registered under the Act, which is required by law to be governed by elected Committees and to engage in important transactions involving the promotion and adjustment of the interests of large bodies of employees or employers, the concept of the rights, duties and functions of a President, according to

ordinary standards, is inevitably broad and of a wide range.

Apart

a l together

from

a

provis ion

i n

t h e

ru les

t o t h a t e f f e c t

those funct ions

woald

extend to

presiding

i n Federal

Council.

From t h e terms used in schedule B ,

a s enacted i n 1910,

tha t

seems t o have been a function

contemplated

a t

t h a t

s t a g e .

I t

would normally be understood

that

a

p re s id ing

o f f i ce r

of

a

body

would

be

a

member

thereof .

And

i n r e l a t i o n

t o

t h e

Federal

Executive,

which

is b u t

t h e day

t o

d a y

a u t h o r i t y

ac t ing

i n l i e u of

t h e Council ,

it would

I

t h i n k ,

o r d i n a r i l y

be understood

that

a

person

e lec ted and be a member o f

as

Pres ident

o f

t h e

organizat ion

would

p r e s i d e

a t

t ha t

Executive.

There

can

be

l i t t l e doub t

t ha t

i f

an

ordinary

member of the publ ic were

asked

i f

h e

thought

t h e Pres ident

of t h e Melbourne Footbal l C l u b was a member

of

t h e Committee

t h e answer would be "yes".

If

he

were

asked

whether h e would

-

expect the

President of the

Sydney Jockey C l u b t o be a member

of

i t s governing

council

or

committee

the

answer

would

almost

c e r t a i n l y

be

"of

course".

If

h e

were

asked

whether

he

thought t h e President

of

the

United

States

was

a member of

Congress

the

answer

would probably be t h a t h e would have

thought

s o r b u t he

knows he is not".

Membership o f t h e

governing body of

any

i n s t i t u t i o n

by

the

President

t .hereof

is ,

I

t h i n k ,

regarded

as

the

normal

s t a t e o f

a f f a i r s .

To

my

mind

t h e func t ions of

t h e P res iden t

a r i s ing

under

the

rules

o ther

than

those

re la t ing

to h i s Presidency of

h i s

Council

d u t i e s

a r e

a l l

i n c i d e n t a l

t o

t h e whole

organizat ion.

I t

is from the

na ture

of

that

posi t ion

that

Presider ,cy

and

membership

of

the

two

nain governing bodies

proceeds.

4 4

t

Accordingly,

when

an

elector

considers

the

candidature cf a nominee for Presidency of the organization he would understand the general scope of the functions of the office. The election is therefore in form and substance calculated to ascertain the authentic will of the electorate an the question of the accession to the position. The actual attributes thereof by way of ordinary understanding of the nature of the position with t h e title of President are before the electors.

For the President so to accede to the off ice of member of the Committee of Management by such an election is not is? conflict with regulation 115(1) (d) (i). That regulation requires that the rules provide for the election of a Committee of Management, namely of every nember thereof.

An election for President is an election for membership of the Committee of Management because it is an election for a position the very name of which, in relation to the organ- ization, embraces and is understood to embrace, presiding membership of the Committee of Management and it.s Executive. That it embraces other things as well does not detract from that situation. Regulation 115 (1) (a) (i) is satisfied so long as every person who acquires the position of member of the Committee of Management acquires it by election in an election where that position is in form and substance, in fact, the subject of an election. When the election is for

4 5 .

t

the Presidency it

is

for a position, single in nature, but

enbracing, inter

alia, membership of the Federal Council and

the Federal Executive

a s

incidental

thereto.

The same

considerations apply to the Vice Presidency. It may be a question whether when a President is so elected he has three offices or one. His special type of membership of Federal

Council

and

Executive an3 his Presidency may all

be

"officesn. It

is my view that he has one position, that of

President in which are incorporated presiding membership

of

the

Federal

Council

and of

the

Federal

Executive.

Each

aspect of that position would

qualify as an office within the

definition in s.4 of the Act.

But that does not mean that

three elections were necessary. Election

to

the Presidency

was enough because it was, as a matter of fact, in form and

-

substance,

an

election

for

the named position having the

three aspects mentioned. Section 133(1)

(a) is satisfied by

the conduct of that election in the manner proscribed by rules made under that section, As indicated above, if this be

not the situation in respect of the Presidency, that state

of

affairs would have to be recognised. It would not

be sound,

on that account, to introduce modifications to the

terms of

regulation 115

(1)

(d)

(i) .

Federal Secretary

and Branch Officials

~.

But the situation is very different in respect of

the

position of Secretary.

According

t.o the Oxford English

.

- , .

-

Dict ionary a

Secre ta ry is "one whose

o f f i c e is t o

w r i t e

f o r

a n o t h e r ,

e s p e c i a l l y

o n e

who

i s

employed

c o n d u c t

t o

correspondence and keep

records

and

( u s u a l l y )

t o

t r a n s a c t

o t h e r b u s i n e s s corporat ion or publ ic

f o r

a n o t h e r

p e r s o n

o r

f o r

a

s o c i e t y ,

bpdy..

I

t h i n k

t h a t t h e ordinary

concept

of

t h e

func t ion

of

a

Secre ta ry

is

t h a t h e

se rves t h e commit.tee

of

t he body of

.

~~

which

he

is

sec re t a ry .

The tne e l e c t i o n of

r u l e s

of

t h e Assoc ia t ion

r e f l ec t

t h i s view.

Accordingly

Secretary was

one

which,

according

both

to

t h e r u l e s

and

t h e ordinary

concept

of

t h e function

of

t h e Secre ta ry ,

was

not

an

e lec t i .on

for

a

p o s i t i o n

i n c o r p o r a t i n g

m e m b e r s h i p

o f

t h e

Committee

o f

Management.

There is much t o be sa id

fo r

t h e view

t h a t

t h e

concept

of

t h e o f f i c e of

Secretary of

a

Union

of

employees

is

t h a t h e

is

t h e

sen ior

execut ive

o f f icer

of

t h e Unian.

That

view

is a l s o

r e f l e c t e d

i n

t he

ru l e s

of

t h e Association

now

before

t h i s Court.

That

is a

v e r y

d i f f e r e n t

p o s i t i o n

from

t h a t of member of t h e Committee of Management.

Accordingly

a

rule

purport ing to confer

membership

of

t h e Committee

of

Management,

e x o , f f i c io , on

a

person

e lec ted

a s

Sec re t a ry

i s

a

r u l e

which

does

not

comply

w i t h

t h e

provis ions of

regula t ion

115(1)

( d ) (i) .

For

s imilar

reasons

the provis ion Secre ta ry o€ each Branch s h a l l be a member

i n the

r u l e s

( r u l ?

28)

t h a t

t h e

Pres ident

and

Gf

t h e FsderaL

Coundil by reason of t h e i r cccupancy of those

posi

t

ions

does

not so comply.

The effect of the provision is to create

positions of membership

of the Federal Council and to provide

that they shall

be filled otherwise than

by

election

therefor.

Thus with respect to those positions of membership

of the requirements of regulation 115(1) (d) (i)

Federal. Council the

rules fail to comply with the

.

To my mind the words of regulation 115(1) (d) (i) which require that the affairs of an organization shall be

regulated by rules providing for the election of

a Committee

of Management and of each branch of the Association are unambiguous and imperative, and that, at this stage, the regulation is in full force and effect. I t is equally clear

that the rules

of

the Association which provide for the

-

election of only a section of the members of its Committee

of

Management,

and

purport

to

confer membership of that

Committee without election thereto, not only

on the Federal

Secretary, but also on Branch Presidents and Secretaries fail to comply with the provisions of s.132 of the Act as

implemented by regulation ll5(l) (d)

(i)

Having regard to the foregoing,

(1

1

Question one asked by t.hc Registrar, namely ,

"DO the rules set out above provide for the

4 8 .

t

e l e c t i o n

o f

t h e

h o l d e r

of

.each

o f f i c e

( a s

d e f i n e d

s e c t i o n

i n

4 )

w i t h i n

t h e

o r g a n i z a t i o n

a s

required

s e c t i o n

b y

1 3 3 (1) (a)

a n d r e g u l a t i o n 1 1 5

(1)

( d ) ( i )

? l 1

s h o u l d

be

answered

"NO".

(2)

Q u e s t i o n

2 ( a ) ,

namely,

. -

"Do

ru les

27

and

4 1

c o n t r a v e n e

s e c t i o n

113 (l)

(a ) a n d r e g u l a t i o n

3.15 (1.) (a) ( i ) i n

so

f a r

as

t h o s e

ru les

appear

t o

p r o v i d e

t h a t

p e r s o n s

e l ec t ed

t o

b e

F e d e r a l

Off icers

s h a l l ,

w i t h o u t

a n y

f u r t h e r

e l e c t i o n ,

a l s o

-

be

members

of

t h e

Fede ra l

C o u n c i l

a n d

Federal

E x e c u t i v e ? "

s h o u l d

be

answered

"Yes".

Q u e s t i o n

2 (b) , namely,

"Does

ru l e

27

c o n t r a v e n e

s e c t i o n

133(1) ( a )

a n d

r e g u l a t i o n

115(1 ) (a) (i) i n

s o p e r s o n s

f a r

a s

t h a t r u l e elected t o be Branch

appears

t o

p r o v i d e

t h a t

P res iden t

and

Branch

S e c r e t a r y

s h a l l ,

w i t h o u t

a n y

f u r t h e r

e l e c t i o n ,

a l s o

be

rnernbers

of

t h e

F e d e r a l

4 9 . ?

Council?"

shou ld be answered "Yes".

Question 2(c), namely,

"Does rule 41. contravene section 133(1)

(a)

and

regulation 115 (1)

(a) (i) in so far as

that rule appears to provide

t h a t a person

elected to

be Branch

President

shall,

without any further election,

a l s o

be

a

member of the Federal Executive?"

should be answered 'Yesn.

( 3 )

Question

( 3 ) , namely,

"Do the

said

rules

satisfy

the

relevant

requirements of paragraphs (a) and (c) of

section

140 (1

j ?"

. should be answered "NO".

. .

. . _. - ._..

~ .. . ___-.

. -. .... I .

.

.

. .

. . .

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