In the Matter of the Conciliation and Repatriation Act 1904 Application by Joseph Henry Moffitt for an Inquiry into an Election in the Vehicle Builders Employees Federation of Australia

THE FEDERAL COURT OF AUSTRALIA)

INDUSTRIAL DIVISION	1 )	No 3 of 1981
AT SYDNEY	)

APPLICATION BY JOSEPH HENRY MOFFITT

FOR AN INQUIRY INTO AN ELECTION IN

THE VEHICLE

BUILDERS

EMPLOYEES

FEDERATION OF AUSTRALIA

ORDER

JUDGE MAKING ORDER: Evatt

DATE OF

ORDER:

14 March

1985

Sydney	MADE:	WHERE
THE COURT:

1. Orders that the application herein be disrnlssed.

2. Certifies, pursuant to S 168 (2) of the Act, that the applicant acted reasonably in applying for an

inquiry

respect

the

1981

election

for

Federal

Secretary

the

V hicle

Bullders

Australia.

Employees'

Federation

THE FEDERAL COURT

OF AUSTRALIA)

INDUSTRIAL

DIVISION

L )

No 4 of 1981

AT SYDNEY

IN THE MATTER OF

THE CONCILIATION AND ARBITRATION

ACT 1904

JOSEPH HENRY MOFFITT

and

THE VEHICLE BUILDERS EMPLOYEES'

FEDERATION OF AUSTRALIA

ORDER

JUDGE MAKING ORDER: Evatt

DATE

OF ORDER:

14 March 1985

WHERE MADE:	Sydney
THE COURT ORDERS:

That the rule

to show cause herein be discharged.

THE FEDERAL COURT OF AUSTRALIA)

INDUSTRIAL

IVIS

No 4 of 1981

SYDNEY

No 3 of 1981

and

THE VEHICLE BUILDERS EMPLOYEES'

FEDERATION OF AUSTRALIA

APPLICATION BY JOSEPH HENRY MOFFITT

FOR AN INQUIRY INTO AN ELECTION IN

THE VEHICLE

BUILDERS

EMPLOYEES

FEDERATION OF AUSTRALIA

CORAM

Evatt

14 March 1985

REASONS FOR JUDGMENT

John Henry Moffitt (the applicant) was

at all material

times a member

of the Vehicle Builders Employees' Federation

Australia,

(the

Organization),

organization

of employees

registered under the Conciliation and Arbitration Act 1904,

(the Act), attached

to the New South Wales Branch

of the

Organization

(the

Branch).

There

are

branches

of the

Organization in Victoria, New South Wales, Queensland and South

Australia each with its own set of certified rules (Federal r.

3 9 ) .

At relevant times there were some six thousand members

attached to the New South Wales Branch which covers the State

of New South Wales and

the Australian Capital Territory with

its head office or headquarters in Sussex Street, Sydney.

At the beginning of 1981 Mr

L.C.

Townsend was the

Federal Secretary

the Organization having been elected to

that office

accordance with the rules of the Organization

some years before.

An election for the f illing of the off ice

of Federal Secretary was due to

be held in March 1981, the term

of office being then for a period of four years (Federal	r.
6(al).

In late 1980, pursuant to

170

of the Act, the

Organization had applied to the Industrial Reglstrar requesting

that an election

for the office of Federal Secretary

of the

Organization

conducted

under

that

section.

Thereafter

pursuant to S 170(5) arrangements

had

been

made

the

Registrar wlth the Chief Australian Electoral Officer for the

said electlon to be conducted by a member of the staff

the

Australian Electoral Office. Nominations were called for in

accordance with the rules o€ the Organization. Two nominations

were duly received by the Returning Officer, namely, that of Mr

Townsend and that of the applicant, dated

7 February 1981.

On or about 9 February 1981 the appl

telegram from the Returning Officer informing him that his

nomination was defective as records showed that he had not

attended at least 50% of Branch or Sub-Branch meetings as

prescribed by Federal r. 6

( d ) (iii) and that unless evidence to

the contrary

was received by

the Returning Officer by

February 1981 the applicant's nomination would be rejected.

On or about

12 February 1981 the applicant sent a

telegram to the Returning Officer

as follows:

not agree with the threatened rejection of

"Re rejection of my nomination ..... I do

my nomination and advise that the nomination

complies with rules 6(d)(i) and

(if) and

consider that

as I am secretary of Albury

District Council and have taken an active interest in Branch and Federation matters

and have been in attendance

at more than 50%

of District Council meetings,

I believe

comply with the rules and the Act, as it would be totally impractical (sia) for me to

attend

Branch

meetings

Sydney.

Should

this rejection be proceeded with,

will

challenge your interpretatlon of the rule

and the rule itself."

On 13 February 1981 the Returning Officer by telegram advised

the applicant that as "the rules do not provide for attendance

at meetings other than Sub-Branch or Branch" he must reject the

applicant's nomination.

Relevant parts of Federal r.

6(d) are set out:-

(d) To be eligible f o r nominations

for

election as Federal Secretary a person

must at the date of his nomination:-

(i) have

b en

m mber

the

Federation

continuously

for

least three years;

(ii)

have been a financial member of least two years immediately prior to his nomination;

(iii)have taken an active interest in

the work of the Branch, Sub-Branch or office to which he is attached or belongs by attending at least

fifty

percent

the

Branch

Sub-Branch meetings for at least two years immediately prior to the date of calling of application;

(iu) This

condition

shall

not

apply

where :

(a) The

applicant

was

working

shift work providing he has attended 50 percent of the

meetings

the

Branch

Sub-Branch which fall on the

week or weeks

which

works day shift: or

( h ) The

applicant

was

bsent

through attending to official

union business:

(a) An

apology

with

reasonable

excuse

accepted

the

meeting to be

taken

attendance at the meeting.

all

relevant

times

there

was

o-called

Sub-Branch within the New South Wales Branch other than the

Newcastle Sub-Branch. Rule

4 5

the Federal rules provides

that

should

six

adult

members

desire

open

Sub-Branch

(provided

that

no Sub-Branch

set

wlthin

thirty-five miles of the Branch head office) they shall send in

a request duly signed by them to the Branch Executive, and, if

granted,

representative

shall

sent

assist

the

opening

the

Sub-Branch

which

s all

at all

the

control

and

take

instructions

from

the

Branch,

rule

then makes provision for

the

election for its management of

officers of the

Sub-Branch

including

President,

Vice-Presldent, Door-Keeper, Auditors and Trustees: the keeping

books

accounts

and

returns

and

the

making

of any

necessary by-laws for the working of the Sub-Branch. However,

no members attached to the New South Wales Branch

of the

Organization

had at any

relevant

time

sought

to open

Sub-Branch

within

the

Albury

district

in accordance

with

Federal r.

4 5 .

In or about

1975

the New South Wales Branch amended

its rules. Federal

r. 4 2 then provided that each Branch may

formulate rules and make amendments thereto to govern its own

affairs provlded that such rules shall not be inconsistent with

the Federal rules and provided further that no new Branch rule

or amendment to any existing Branch rules shall be lodged with

the Industrial Registrar to be certified pursuant

to S 139 of

the Act before

has been reported to the Federal Executive

Commlttee. The

1975 Branch Pmendments included amendments

Branch r. 6.

Relevant parts of certified r. 6 of the New South

Wales Branch have since

at least 1976 provided that:-

6. Powers and Duties of State Council

(a) The

governing

body

the

Vehicle

Builders

Employees

Federation

Australia,

New

South

Wales

Branch,

shall be the State Council, subject to

the decision of the members

in meetings

assembled.

The State Council shall consist of the

President,

State

Deputy

President, State Vice-President, State

Secretary and State Assistant Secretary.

There

shall

also

one Councillor,

(entitled 'Award Councillor!)

for every

Award,

either

State

Federal,

which the Branch is a respondent, where

the membership working under that Award

in the State of New South Wales exceed

150 members.

There

shall

also

elected

the

General Membership a number of General Councillors equal to twice the number

of Councillors elected

as Councillors

representing an Award, with a minimum

of twelve

(12) Councillors elected by

the General Membership.

In addition there shall be elected one

(1) District Councillor elected by the

Combined

Membership,

residing

the

City of Albury and living within a 100

kilometre

radius

from

the recognised

centre of the City of Albury, and one

(L) District Councillor elected by the

Combined

Membership

residing

the

City of Newcastle and living within a

kilometre

100

radius

from

the

recognised

centre

the

City

Newcastle.

Each

Award

and

District

Councillor

shall

responsible

for

initiating

and/or

maintaining

ctive

organization of Branch Members within

the Award group

or District Area which

elected	the	particular	Councillor	to
Office.

There was no evidence led

as to whether these 1975

amendments were reported to the Federal Executive prior to certification but no doubt the Industrial Registrar would have

had to be satisfied that Federal

42 had been complied with

before issuing his certificate under

S 139(4) of the Act.

Branch and a resident of Albury for some six years prior to

1981 and in fact had been for some time before the beginning of

1981 the District Councillor for Albury having been elected

that position in accordance with Branch r.

6 ( g ) . Albury is a

city situated some

300 miles from Sydney.

At all relevant times there were some

1,000 members of

the Branch living within a

100 kilometre radius from the centre

of the City of Albury, approximately 950 of whom (including the applicant) were employed at the Borg Warner Australia plant in Albury. It is not disputed that the applicant during at least

two years prior to the calling of nominations

for the filling

of	the office of Federal Secretary in February 1981 had taken

an active interest in his office of Albury Distrlct Councillor and had attended all meetings of members of the Branch living

in the Albury area, which meetings had been held

regular

monthly or two monthly basis during that time. Nor is it disputed that at Albury at all relevant times there existed a Shop Steward Committee consisting of 10 members elected by the membership living in Albury and that a Secretary of a so-called

Albury District Council was in turn elected by that Committee.

Further, since 1975 the applicant had been elected	as	such
Secretary for a period of time.

Subsequent upon the Returning Officer rejecting the

applicant's nomination for the office of Federal Secretary,

*he

applicant lodged an application with the Industrial Registrar on 3 March 1981 under Part IX of the Act for an inquiry into

the

said

election.

That

inquiry was deemed to have

been

instituted

March

1981

when

the

Industrial

Registrar

referred the application to the Court (S 159 ( 4 ) (a) ) , the matter being numbered 3 of 1981 in the Industrial Division of the Court.

On 5 March 1981 the applicant was granted a rule

show cause pursuant

to S 140 of the Act directed

to the

Organization wherein a challenge was made

to the validlty of

Federal Rule 6 (d) (iii)

, this matter being numbered 4 of 1981

in the Industrial Division of the Court.

Both

matters

were

listed

before

the

Court

for

directions on 9 March 1981, Mr Kenzie of Counsel appearing for

the

applicant,

Harrison

Counsel

appearing

for

the

Organization whilst an officer of the Federal Crown Solicitor

appeared for th? Returning Officer. On that

day, directions

were made by the Court and after submissions, interim orders

were made by consent pursuant

to S

163 that the Returning

Officer take no further steps in relation

to the election for

the filling of the office of Federal Secretary. The matter

was then adjourned for further directions in April 1981 when

the matter was fixed for hearing on

10 June 1981.

When the

matters were called on on

June 1981, Mr Gray, then

', .-

'X:.

Counsel, appeared on behalf of the

Organizati'oq,

Mr Kenzie

again appearing for the applicant.

A representative of the

then Crown Solicitor's Office again appeared

on behalf of the

Returning Officer

in matter no 3

of 1981. By consent of the

parties, the two matters were heard together. Evidence and

submissions were heard in both matters on

10,

11, 12 and

June 1981 when the matter stood adjourned for decision.

Prior to adjourning the matter, the Court indicated

that owing to its then commitments, it may not be able to hand down reasons for judgment in the immediate future and that it was concerned that the election for the filling of the office

of Federal Secretary should be completed

as soon as possible

and that, should a ballot be required, then such ballot should

not be delayed. The Court indicated that perhaps

it would be

possible for the Court to give judgment in the matter without

reasons within a matter of a few days and if the parties wished

the Court to do so, they were at liberty to apply accordingly.

Shortly

thereafter,

approach

was

made

the

Court

indicating that a decision in the matter was not required. It was the Court's then understanding that no further action was

required

either

matter

the

Court.

Subsequently,

December 1984, a message was received

by the Court asking that

matter no 4 of 1981 (i.e., the

S 140 application) be relisted.

On 14 December 1984, both matters were listed before

the Court

as presently constituted. Mr Kenzie then appeared

for

the

applicant

and

Townsend

appeared

for

the

Organization

whilst

arepresentative

from

the

Australian

Government

Solicitor's

Office

appeared

for the Returning

Officer.

M r Kenzie then indicated that in

the normal course an

election for the filling of the Federal Secretary's off ice was

due

March 1985. Mr Townsend then pointed out that the

Organizatlon had approached the Industrial Registrar pursuant

to S 170 of the Act requesting that he arrange for an election

to be conducted for the filling of that off ice. Consequently,

the parties were asking the Court that the Court vacate the

interim orders made by it on 5 March 1981. Mr Kenzie advised

the Court that his then instructions were that the applicant

sought a determination

as to the validity of Federal

r. 6

(d)(iii) and requested that the Court give judgment

in matter

No 4 of 1981.

Accordingly, judgment is given in that matter.

I am of the view that

on the evidence presented

to the

Court Federal r.

6(d) (iii), whilst its provisions are governed

by r. 6(d)

(iv) and in particular 6(d) (iv)

(c), is valid. It is

trite law that the rules of an organization registered under

the Act may make provision that nominees for office, especially

for a full-time paid office, be qualified in some respect, such

as length of membership, firmnciality, experience, or the like,

see Leveridge & Ors. v. Shop Distributors and Allied Employees'

Association & Ors. (1976) 31 FLR 385, Allen v. Townsend (1977)

31 FLR 431, Love11 v. Federated Liquor and Allied Industries

Employees' Union of Australia (1978) 35 FLR 72. What might be a valid qualification in one organization may be Invalid,

because

the

qualification

is oppressive,

unreasonable

unjust, in another. Indeed, what is a valid qualification in a particular branch of a particular organization at a particular

time may be invalid

at a different time

or in a different

branch of that organization. Each case will generally depend

upon the evidence in

the case.

It must be remembered that the evidence herein was

directed

to the position within the New South Wales Branch of

the organization as at the beginning of 1981 and for the

two

years immediately prior thereto. Evidence was led

as to the

number of members residing within the country areas of New

South Wales to show how many country members were likely

to be

unqualified for nomination for the office of Federal Secretary

as a result of being unable to attend Branch meetings held in

Sydney. No such evidence	was led in respect of branches in
other States.

The applicant's argument in support of the invalidity

of Federal r. 6(d)

(iii) was that it imposed upon those members

living in Albury who wished to attend Branch meetings in Sydney, conditions which were oppressive, unreasonable or unjust. Attendance would involve a member making a

rzmd trip

of some 600 miles either

by train, car or air. This would

undoubtedly involve heavy expenditure both for fares and also,

if travelling

by train or car, the loss

of up to

two days'

wages. Branch r.

22 provides that meetings of the Branch be

held at its

office

Sydney

the

first

Wednesday

February, April, July and October or

such other time and

place as may be determined from time to time.

There is no

doubt

that

the imposition

such

conditions or restrictions could be oppressive, unreasonable or

unjust in those circumstances.

But,

it was

conceded by Mr

Kenzie on behalf

the applicant that the opening words of

Federal sub-r. 6 (d)

(iv)

, namely, "This condition", referred to

the condition set out in paragraph

(iii)

of that sub-rule.

This clearly is the proper construction of

paragraph (iv). In

my view any member living in Albury

who wrote and apologised

for his failure to attend

the monthly meetings of the Branch in

Sydney because of the cost of

the

travel and the loss of

earnings

whilst

he was so attending

would

satisfy

the

provisions of Federal r. 6 (d) (iv) (c). In that case, the member would have demonstrated a reasonable excuse within the meaning of that paragraph.

It was argued by Mr Kenzie that whether

or not such an

apology was accepted by the meeting in those circumstances was

at	the whim of the meeting. In my view, if a resolution

without more was passed

at such a quarterly meeting of the

Branch rejecting an apology

in those circumstances, then such

resolution would demonstrate a lack of bona fides and would

declared invalid on being challenged pursuant	to S 141 of the
Act.

Consequently, it is unnecessary in these reasons

refer to the lengthy evidence concerning the actual number of

members employed within the Albury District; the number of

members then employed by Borg Warner Australia

at its factory

at Albury; the total of the Albury members expressed

as a

percentage of the total Branch memberships; the number of

sub-branches (if any) within the areas of other Branches of the

Organization;

and

the

percentage

of members

working

and

residing in other country cities	or	towns within New South
Wales.

Nor is it necessary for the Court o give a definitive

opinion as to whether the meetings of members

at Albury of the

so-called Dlstrict Council which

were regularly attended

by the

applicant were in fact meetings of a "Sub-Branch'' of the New South Wales Branch within the meaning of that expression in r.

6 (d)

(iii)

It was always conceded by the Organization in this

matter that the arrangement

of a District Council within

the

Albury district as provided for by New South Wales Branch

6 (g) and meetings of that Council were in fact meetings

"Sub-Branch"

the

New

South

Wales

Branch

and

that

the

applicant's nomination should in

all the circumstances have

been accepted by the Returning Offlcer, cf Williams

Hursey

(1959) 103 CLR 30 at 54-55.

In my view, there is a great deal

merit in such submission but

unnecessary that a

definitive determination be made in the present clrcumstances.

Accordingly, being of the view that r.

6 (d)

(iii) read

in conjunction with

r. 6(d)(iv)

does not contravene

S 1 4 0 of

the Act, the rule

to show cause in matter no

4 of 1981 is

discharged. As to the Part IX Inquiry (no 3 of 1981) the application is in all the circumstances dismissed. The interim

orders made on

9 March 1981 are to be vacated at the conclusion

of the election currently being held for the position of

Federal Secretary and Assistant Federal Secretary.

The Court pursuant to

S 168(2) of the Act certifies

that the applicant acted reasonably

in applying for an inquiry

in respect of the 1981 election for Federal Secretary.

I certify

that

his

and

the

preceding pages are a true

copy

the

Reasons

for

Judgment

herein

his

Honour Mr Justice Evatt.

*- ,I.

Associate

Dated 14 March 1985

[1985] FCA 83

14 Mar 1985