Kavvadias v Commonwealth Ombudsman

Re: PETER ALEXANDER IMLACH and ANN ELIZABETH WALKER
And: J.F. DALEY; J. SIMMONDS; R. CATONI; J. BAIRD; L. BUTLER; R. LEONARD; H.
ROWE; G. GILLS; P. BRUCE; G. ROGERS; C. WILLIAMSON-CAMERON; P.C. DOOLAN; G.
BLAZELY; J. GURR; B. O'BYRNE and THE HOSPITAL EMPLOYEES FEDERATION OF
AUSTRALIA
V. No. 29 of 1983
Industrial Law
7 IR 408

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial Law - Conciliation and Arbitration Act 1904 - rules of registered organization - amendment to rule altering geographical boundaries of branch prescribed - whether amendment authorized by rules - whether inconsistent with branches being "completely and absolutely autonomous" - effect of alteration of boundaries on members' membership of the branch - whether branch officer would become ineligible to hold office - whether rules oppressive, unreasonable or unjust - whether rules make provision "for autonomy of a branch" as required by s.140(1)(d) of Act - whether rules permit "dismissal from office" of a branch officer contrary to s.140(1)(a) and s.133(1)(f).

Conciliation and Arbitration Act 1904 ss.133(1)(f), 140(1)(a),(b) and (c), 141.

HEARING

MELBOURNE

#DATE 28:6:1984

JUDGE1

The Hospital Employees Federation of Australia (the Federation) is an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act). The firstnamed applicant is a member of the Federation and a member and branch secretary of its Tasmanian Branch No. 1 (the No. 1 Branch). The secondnamed applicant is a member of the Federation and of the No. 1 Branch and was last elected to the Committee of Management of that branch in May 1983 for a four year term of office. She resides in and is employed in that part of Tasmania which may be conveniently called the North-West region which, under the registered rules of the Federation, falls within the "area covered by Branch No. 1" (r. 34(c)).

Mr O'Callaghan, of Queen's Counsel, and Mr T. Ginnane appeared for the applicants. Mr Ryan, of Queen's Counsel, and Mr S. Marshall appeared for the respondents. It was admitted that the firstnamed to fifteenth-named respondents are and have been persons under a duty to perform and observe the rules of the Federation at all material times.
The present proceedings relate to two resolutions carried by the National Council of the Federation at a meeting held on 20 and 21 October, 1983. The secondnamed applicant deposed in her affidavit that, as a result of certain amendments to the rules of the Federation, made by those resolutions, she, together with some 850 members of the No. 1 Branch who also reside or are employed in the North-West region, would, upon certification of the amendments, cease to be members of the No. 1 Branch and would become members of the Tasmanian No. 2 Branch of the Federation (the No. 2 Branch).
The respondents were called upon to show cause why certain orders should not be made under s. 140 and s. 141 of the Act. The rule to show cause, as amended at the hearing by consent (subject to the respondents' right to make further submissions later as to the form of any order to be made against any of them), called upon the respondents to show cause why the following orders or declarations should not be made:-

1. That the respondents, other than the Hospital Employees Federation of Australia (the Federation) perform and observe the rules of the Federation by treating as null and void and of no legal effect the following resolutions of a meeting of the National Council of the Federation held on or about the 20th day of October, 1983, namely :- "That National Rule 34(c) be deleted and replaced with the following : 'In the State of Tasmania there shall be two Branches which shall be known as the Hospital Employees Federation of Australia Tasmanian Branch No. 1 and the Hospital Employees Federation of Australia Tasmanian Branch No. 2.' 'The area covered by Branch No. 1 shall be the whole of that portion of the said State south of Latitude 42 degrees South. The area covered by Branch No. 2 shall be the whole of that portion of the said State north of Latitude 42 degrees South. Notwithstanding anything contained in these Rules, this sub-clause shall not be amended or altered in any way affecting Branch No. 2 unless at least two-thirds of the financial membership of Branch No. 2 agree to such amendment or alteration by ballot duly conducted for the purpose.' "And that such rule change not to have effect until at least two-thirds of the financial membership of Tasmanian Branch No. 2 agree to such change by ballot duly conducted for the purpose, but in any case it shall not have effect until December 1st, 1983."

2. That the respondents other than the Federation perform or observe the rules of the Federation by treating as null and void and of no legal effect so much of the resolution of the meeting of the National Council of the Federation held on or about the 21st day of October, 1983 as adopted as rules of the Federation the following :-

"46(d) The Tasmanian No. 1 Branch shall consist of all members of the Federation employed in that portion of Tasmania south of Latitutde 42 degrees South.

(e) The Tasmanian No. 2 Branch shall consist of all members of the Federation employed in that portion of Tasmania north of Latitude 42 degrees South."

3. That the respondents other than the Federation perform and observe the rules of the Federation by :-

(a) desisting and refraining from submitting to or accepting from any members of the Federation Tasmanian Branch No. 1 without the prior written consent of the Committee of Management of the said Branch :

(i) applications for admission to membership;

(ii) applications for transfer of membership;

(iii) accounts for membership contributions fees fines and levies or payments made or tendered of membership contribution fees fines and levies;

(iv) communications on industrial or other matters relating to or affecting members of the said Branch as members of the said Branch usually or properly originating with or directed to the Branch Secretary of the said Branch;

(b) delivering forthwith to the Branch Secretary of the said Branch the `originals and all copies of all documents accounts and monies referred to in paragraph (a) of this Order received by the respondents or any of them at any time prior or subsequent to the making of this Order.

4. A declaration that Rules 13(b), 31 and 34(c) of the Rules of the Federation contravene s.140(1)(c) of the Conciliation and Arbitration Act 1904.

5. A declaration that the Rules of the Federation contravene s. 140(1) of the Conciliation and Arbitration Act 1904 in a specified respect in that they fail to make a provision required by s. 140(1)(d) of the Act, namely, provision for the autonomy of a branch in matters affecting members of the branch only.

6. A declaration that the Rules of the Federation and in particular Rules 13(b), 31 and 34(c) contravene s. 140(1) of the Conciliation and Arbitration Act 1904 in a specified respect in that they permit a person elected to an office within the Tasmanian No. 1 Branch to be effectively dismissed from office otherwise than in accordance with s. 133(1)(f) of the Act.

The alterations to the rules made at the meeting of the National Council on 20 and 21 October, 1983, referred to in paragraphs 1 and 2 of the amended rule to show cause, have not yet been certified by the Industrial Registrar, following upon representations made to him by the applicants, based upon their intention to institute proceedings in this Court. Accordingly, those alterations to the rules are not yet in force (s. 139(4) of the Act).

The basic submissions for the applicants, put by Mr O'Callaghan at the outset and reaffirmed later, were that firstly, the rules properly construed did not permit the boundaries of the area of coverage of the No. 1 Branch to be changed by the resolution of the National Council; alternatively, if the rules did permit such a resolution then certain rules contravene the Act and in particular the provisions of s.140.
During the hearing reference was made by counsel for the applicants and the respondents to a considerable number of the certified rules of the Federation in force on 20 and 21 October, 1983. It is not necessary to refer to all of the rules referred to (for example National Rules 6, 9 and 12, and Standard Branch Rules 13, 14, 16, 17, 22 and 24), but it is convenient to set out at this stage the text of certain of the rules:-

"13. Powers and Duties of National Council Subject to the supreme control of the Federation which is vested in the members and subject to these Rules, the National Council shall have the management and control of the affairs of the Federation and without limiting the generality of the foregoing, shall in particular have power -

....

(b) to repeal, alter and add to these Rules or any of them;

31. Alterations to Rules

(a) Subject to Rules 35(a) and 36 of these Rules, the power to make new rules or to add to, amend, rescind or otherwise alter these rules shall be exercised by and at a meeting of the National Council. ...

34. Branches

(a) There shall be a line of demarcation of members as follows :- Group (a) : Will include all persons eligible for membership of the Federation, other than Mental Hospital Employees, Department of Health Mental Hygiene Employees, Penal Department Employees and Children's Welfare Department Employees and Professional Officers and Nurses. Group (b) : Will include all Mental Hospital Employees, Department of Health Mental Hygiene Employees, Penal Department Employees and Children's Welfare Department Employees and other Government Employees. Group (c) : Includes all Professional Officers and Nurses.

(b) In the State of Victoria there shall be two Branches. No. 1 Branch shall comprise all the members in Groups (a) and (c). No. 2 Branch shall comprise all the members in Group (b).

(c) In the State of Tasmania there shall be two Branches which shall be known as the Hospital Employees' Federation Tasmanian Branch No. 1. and the Hospital Employees' Federation Tasmanian Branch No. 2. The area covered by Branch No. 1 shall be the whole of that portion of the said State south of and including Oatlands and westwards from Deloraine. The area covered by Branch No. 2 shall be that portion of the said State north of Oatlands and eastwards from and including Deloraine. Notwithstanding anything contained elsewhere in these Rules, this sub-clause shall not be amended or altered in any way affecting Branch No. 2 unless at least two-thirds of the financial membership of Branch No. 2 agree to such amendment or alteration by ballot duly conducted for the purpose. (Sub-rules (d), (e), (f), (g) and (h) relate to other States and the Australian Capital Territory)

(i) The National Council shall have the power with consent (sic) of financial members in any State to constitute other Branches upon the line of demarcation set out in paragraph (a).

(j) Paragraph (a) shall not be altered without the approval of a two-thirds majority of the National Council. ...

(m) Members residing in a State or Territory in which there is no Branch, desirous of forming a Branch, shall request the National Council by a petition signed by not less than twenty-four members, to take the necessary steps to form a Branch. The National Council shall, upon receipt of such petition, take immediate action to comply with the request.

35. Rights of Branches

(a) All Branches shall be completely and absolutely autonomous within the ambit of these Rules, and shall be responsible for their own government and administration. The Branch shall be the basic unit of the Federation, and shall possess full and adequate powers to conduct its own affairs and to seek its objectives under the Rules. The control of the Branch resides exclusively in the members of the Branch, who shall be bound by these Rules. This Rule can never be altered except by a Ballot of all financial members of the Federation. Such alteration to be carried must receive a majority vote of two-thirds of the financial members of the Federation.

(b) Subject to the Rules, or Federal Policy, nothing shall alienate the right of members assembled in the General Meeting to determine the policy of the Branch. The decision of properly constituted General Meetings shall be binding on all members of the Branch.

36. Branch Rules

(a) Subject to clause (b) of this Rule, each Branch shall be governed in accordance with the Standard Branch Rules (with the necesary insertions) set out in Schedule A hereto.

(b) Each Branch of the Federation shall have power through its Committee of Management or by referendum of Branch members, to make Rules from time to time for its own internal management, and may therefore add to, rescind or alter any of the Standard Branch Rules ..."

The Standard Branch Rules referred to in Rule 36(a) include the following provision :-

"2. Constitution The Branch shall consist of all members of the Federation within the State of (herein set out name of State and any other limitations as provided by National Rule 32)."

(It was common ground at the hearing that the reference to rule 32 was intended to refer to rule 34.)

It will be seen that the areas covered by the two branches in the State of Tasmania are defined in rule 34(c) by reference to certain geographical boundaries. The branches in Victoria (and elsewhere) the branches are defined in other sub-rules of rule 34 by reference to groups of occupations or areas of employment. Rule 13 confers upon the National Council the power "Subject to the supreme control of the Federation which is vested in the members and subject to these rules ... (b) to repeal, alter and add to these rules or any of them". The applicants contend that the power to alter the rules does not include a power to alter the geographical boundaries of the No. 1 Branch without the consent of the Branch.
The applicants have advanced a number of submissions in support of that contention. They seek to rely, amongst other things, upon the use in rule 31 of the words "subject to rules 35(a) and 36". The applicants pointed out that rule 35(a) contained the prescription that "all branches shall be completely and absolutely autonomous" and that rule 36 prescribed Standard Branch Rules which were to govern branches of the Federation and conferred upon the branches the right to alter those rules and to make rules for their own management. They contended that the words at the beginning of rule 31 were therefore intended to make it clear that the exercise by the National Council of the power under rule 13 to alter rules was restricted in respect of any rule affecting the autonomy of branches; the extent of that restriction being embodied in the expression "all branches shall be completely and absolutely autonomous". It is contended that rules 31, 35(a) and 36, read together, expressly forbid the alteration of the rules prescribing the boundaries of a branch except with the consent of the branch concerned.
However, rule 13, which is the rule conferring the power to alter rules upon the National Council, does not contain any words making the power expressly subject to rules 35(a) and 36. Neither it nor rule 34 expressly states that rule 34(c) cannot be altered without the consent of the branch. The absence of such provisions may be contrasted with the express provisions in rule 12(c) (requiring a two-thirds majority of National Council), in the last sentence of rule 34(c) (requiring a two-thirds majority of No. 2 Branch), in rule 34(j) (requiring a two-thirds majority of National Council) and in rule 35(a) itself (requiring a two-thirds majority of financial members). I accept the respondents' contention that it is significant that the words of limitation relied upon by the applicants only appear in rule 31, which is a machinery provision prescribing the manner in which the National Council shall exercise the power to alter the rules, i.e. "by and at a meeting of the National Council".
Further, an examination of the rules makes it clear that it was necessary to include in rule 31 the words "Subject to Rules 35(a) and 36" in order to ensure that rule 31 was not inconsistent with the provisions in rule 35(a) that a two-thirds majority vote in a ballot of all financial members is necessary to alter rule 35 and (in rule 36) conferring upon each branch certain powers to make rules. It may be added that the draughtsman of rule 13 obviously considered the question of placing restrictions upon the powers conferred by rule 13 upon the National Council (including the rule-making power) and those powers were made "subject to the supreme control of the Federation which is vested in the members and subject to these Rules ...". I am unable to accept the applicants' contention that the words of limitation appearing at the beginning of rule 31(a) are intended to place an express restriction upon the power of the National Council to alter the rules, as distinct from placing a limitation upon the manner of exercising the power.

The applicants also submit that the National Council's power to alter the rules must be read subject to a restriction, implicit in the autonomy conferred upon all branches by rule 35(a), that it is not empowered to change the boundaries of the No. 1 Branch in any way unless it has previously obtained the consent of the branch. A question arises as to what would constitute "the consent of the branch" if this submission (or the applicants' first submission) were upheld, i.e. whether the consent could be given by an affirmative vote of the branch management committee or could only be given in some other manner, for example, by those financial members attending a meeting of the branch called for the purpose or by a ballot of all financial members of the branch (cf. rule 34(c)). Another question is whether it would be necessary that the vote giving consent be passed by a two-thirds majority or even a unanimous vote or whether a simple majority would suffice. Mr O'Callaghan, on behalf of the applicants, acknowledged that those questions exist but submitted that it was not necessary to answer them in the present proceedings.
The applicants' contention that there is an implied restriction upon the power to alter rules is based partly upon the rules read as a whole and partly upon particular rules. They rely in particular upon the opening sentence of rule 35(a) which says "All Branches shall be completely and absolutely autonomous within the ambit of these Rules, and shall be responsible for their own government and administration". It is contended that that provision is necessarily inconsistent with the existence of a power in the National Council to alter the boundaries of a branch without its consent. Mr O'Callaghan also submitted that rule 34(i) and (m) (set out earlier) emphasize that, given the constitution of a branch, it has a permanency and an inviolability as to its boundaries, which protects it from rule amendments altering its boundaries without its consent. He also placed reliance upon Standard Branch Rule 22, as to the dissolution of a branch, and Standard Branch Rule 24, as to a branch desiring to secede from the Federation.
It is contended that an alteration of the boundaries of No. 1 Branch without its consent would be inconsistent with the autonomy of the Branch in that it would:

(a) dissolve the branch and constitute a new branch with a smaller area and a smaller membership;

(b) result in the automatic transfer of a large number of members from it to the No. 2 Branch;

(c) result in its officers, including the secondnamed applicant, becoming ineligible to continue to hold office because of a cessation of membership of the branch;

(d) detrimentally affect its funds and property.

As to (a) I reject the applicants' submission that the alteration of the rule prescribing the boundaries of the branch would dissolve the No. 1 Branch and constitute a new branch with a smaller area and a smaller number of members. It would have the effect of reducing both its geographic area and the number of its members but, in my opinion, it would not dissolve the No. 1 Branch and would not constitute a new branch. The No. 1 Branch would retain its name, its objects, its rules, its officers, its seal, its committee of management, its minute books and other records of the branch, its furniture and its equipment, although, as Mr O'Callaghan pointed out, its income from contributions and entrance fees would be reduced. In those circumstances, in my opinion, it cannot be said that the branch would be dissolved and a new branch constituted.
As to (b), Mr Ryan on behalf of the respondents accepted that such an automatic transfer of members would be one effect of the certification of the alteration to the rules made by the resolution carried on 21 October 1983 (cf. rules 46(d) and (e)). However, he submitted that the amendments to rule 34(c), made on the previous day, would not have led to any such automatic transfer of members. He relied upon National Rule 6(d), which provides that "every member shall be deemed to be attached to the Branch of the Federation to which he had applied for membership and no member shall be attached to more than one branch". He submitted that, by reason of that sub-rule, all members of the Federation remain attached to the branch to which they had applied for membership until they obtain transfer certificates under National Rule 9. I accept his submission that a member, who had not applied for a transfer under Rule 9, would not be transferred to the No. 2 Branch automatically upon certification by the Industrial Registrar of the alterations to the branch boundaries prescribed by rule 34(c), made on 20 October 1983.
In any event, even if the exercise of the power to alter branch boundaries did result in the automatic transfer of a large number of members, I would not regard that result as being inconsistent with the branch being "completely and absolutely autonomous within the ambit of these Rules". The meaning of autonomy is dealt with more fully later, as is the statutory provision that the alteration of the rule will not have effect until the Industrial Registrar gives his certificate under s.139(4).
As to (c), in my opinion the amendments to rule 34(c), if certified, would not result in the secondnamed applicant, a branch officer, being unable to continue to hold office in the No. 1 Branch or result in any removal from office. Although the existing Standard Branch Rule 13(e) provides that a person "shall be ineligible to hold office as an officer of the branch ... if ... (ii) he ceases to be a member of the Federation or of the Branch" for the reasons given in relation to (b) above, those amendments would not result in a branch officer ceasing to be a member of the No. 1 Branch.
It may be added that, although Mr Ryan conceded that such an automatic transfer would occur upon the certification of the new National Rules 46(d) and (e), which were made on 21 October 1983, as he pointed out the rules adopted on that latter date repealed both National Rule 6(d) and Standard Branch Rule 13(e) and adopted a new rule 60(f) which provides that:-

(f) A person shall be ineligible to hold office as an officer of a branch ... if ...

(ii) he ceases to be a financial member of the Federation."

Those rule changes, if certified, will ensure that a person becomes ineligible to hold office by ceasing to be a member of the Federation, not, as presently occurs, by ceasing to be a member of the branch.

As to (d), reference has been made earlier, in dealing with (a) above, to the submission by Mr O'Callaghan as to the reduction in income from contributions and entrance fees. However, in my opinion it has not been shown that there would be any effect upon the property and funds of the branch, resulting from the alteration of the boundaries, which would be inconsistent with the branch being "completely and absolutely autonomous within the ambit of these Rules".
As to the more general, and quite fundamental, question of the meaning and effect of the autonomy conferred upon the branches by rule 35(a), I accept Mr Ryan's submission that it is conferred upon these branches as defined from time to time by the certified rules of the Federation. It is dificult to conceive of the boundaries of branches being defined except by the certified rules. The Act and the Conciliation and Arbitration regulations recognize that a registered organization may have branches and, where it has, require it to have rules in respect of each branch, including its office, the register of its members, the election of its officers and committees and the control of its committees by the members of the branch. Regulation 115(1)(d)(xiv) requires that the rules of the Federation, as an organization registered under the Act, provide for "the alteration of its rules". It should be noted that the autonomy referred to in rule 35(a) is expressed to be "within the ambit of these Rules". In my opinion the autonomy there conferred upon the branches is conferred upon them as constituted in accordance with whatever boundaries they may have under the certified rules of the Federation from time to time, including any alterations to those boundaries which may be made by the National Council exercising its power under rule 13.
The complete and absolute autonomy that is conferred upon each branch by rule 35 (a) is not conferred upon the branch comprising only those persons who happened to constitute the branch membership at the date upon which rule 35(a) was certified by the Industrial Registrar. The autonomy at any given time is that of the branch consisting of its members at that time, i.e. "the ever-changing body of workmen that constitute the trade" - per O'Connor J. in the Jumbunna case (1908) 6 CLR 309 at 359. The membership of any branch of the Federation (and of any registered organization) is, of its nature, not static and will change from time to time - irrespective of whether the boundaries of the branch are ever altered. Such changes will occur when new members join and when existing members die or resign or transfer voluntarily under National Rule 9. Members may join or resign or transfer to another branch for one or more of a number of reasons, including economic factors, such as an increase or a decrease in employment, or a re-location of an employer's establishment - although the latter is less likely to affect the membership in the branches of the Federation than it is in the branches of some other organizations. However, those changes in membership - whether entirely by voluntary act of members or by causes beyond their control or by reasons of a rule change altering the branch's boundaries - do not, in my opinion, impair the autonomy conferred upon each branch by the rule.
Mr O'Callaghan, on behalf of the applicants, pointed out that, if the National Council has the power to alter the boundaries of a branch, it could alter those boundaries to such an extent as to reduce the branch to a state of insignificance and that the alterations made to the boundaries of the Tasmanian branches, the subject of the present proceedings, would have a dramatic effect upon the strength of the No. 1 Branch because it would effectively transfer 850 members (apparently out of a total of approximately 3100 members in the No. 1 Branch) to the Tasmanian No. 2 Branch. On the other hand there may be occasions from time to time where very good reasons exist for altering the boundaries of a branch. On the construction of the rules for which the applicants contend, the National Council would have no power to alter the boundaries even in a minor way unless it first obtained the consent of the branch. As mentioned earlier, the applicants' counsel conceded that there are difficulties in determining what would be "the Branch" for the purposes of obtaining its consent.
In my opinion the fact that the National Council might reduce a branch to a state of insignificance does not justify construing the rules in such a way that the National Council has no power at all to alter the boundaries except with the consent of the branch. As Mr Ryan pointed out, any alteration by the National Council to the rule prescribing the boundaries of a branch must be submitted to the Industrial Registrar and the alteration will not have effect until "the Registrar has certified that, in his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations ... and is not otherwise contrary to law ..", (s.139(4)). The "provisions of this Act" include s. 140(1)(c) which require that the rules, and therefore any alteration to the boundaries of the branch effected by an alteration to rule 34, "shall not impose upon ... members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust ...".
Further, if the Industrial Registrar certifies that the alteration to rule 34 changing the boundaries of the No. 1 Branch is not contrary to the provisions of the Act, it will be open to any member of the Federation to apply to the court for an order if he wishes to contend that the rules, including the alteration of the branch boundaries contained in rule 34, contravene s. 140(1) of the Act. I accept Mr Ryan's submission that it is not open to the Court in the present proceedings to consider whether the amendments to the rules (including the alterations to the branch boundaries) made by National Council on October 20-21, 1983, contravene s.140 of the Act.
Accordingly, in my opinion the rule-making power conferred by rule 13 is not subject to an implied restriction that the National Council cannot, without the consent of the branch concerned, alter the rules fixing the geographic boundaries of a branch.
That opinion is reinforced by the terms of rule 34(j). As already noted, in rule 34, which is headed "Branches", sub-rule (c) defines the areas covered by the Tasmanian branches No. 1 and No. 2 by reference to geographical boundaries. Sub-rule (a) prescribes the "line of demarcation of members", dividing them into three groups of occupations or areas of employment, and sub-rules (b), (d), (e), (f), (g) and (h) define the branches in the Australian Capital Territory and in all States other than Tasmania by reference to that demarcation. Rule 34(j) expressly provides that paragraph (a) "shall not be altered without the approval of a two-thirds majority of the National Council". That sub-rule appears to assume that the National Council has power to alter the terms of rule 34(a), and on that assumption then proceeds to prescribe a two-thirds majority of the National Council as being necessary for that purpose.
It should also be noted in this context that the applicants submitted that the Court should infer that the last sentence of rule 34(c) was only included for greater caution. This submission was supported by the tender of photocopies of certain folios in the Industrial Registrar's registration file relating to the Federation. However, neither the information contained in those folios nor the other evidentiary material persuades me that that inference should be drawn.
In my opinion, rule 34(j) suggests that it was intended that the rules establishing the "line of demarcation" of members in branches in States other than Tasmania could be altered by the National Council. Further, the rules do not appear to me to manifest an intention that rule 34(c), in defining the branches in Tasmania, is to be treated in a way which differs from the other sub-rules in rule 34 (which define the branches in the other States) in denying to the National Council the power to alter rule 34(c) without the consent of the branch.
I am not prepared to make any orders that the firstnamed to fifteenthnamed respondents inclusive perform and observe the rules of the Federation in the manner sought by paragraphs 1, 2 and 3 of the rule to show cause in its amended form.
The applicants submit that, if the resolutions were authorized by the rules (as now found), then the rules of the Federation, and in particular rules 13(b), 31 and 34(c), contravene s.140(1)(c) of the Act in that the rules impose upon members, and in particular the members of the "No. 1 Branch, conditions, obligations or restrictions which are oppressive, unreasonable or unjust". The applicants' primary submission on this aspect is that the rules, so construed "will substantially impair the complete and absolute autonomy" of the No. 1 Branch. For the reasons given earlier I do not consider that the power to alter the boundaries of a branch are inconsistent with the branches being "completely and absolutely autonomous within the ambit of these Rules".
One of the applicants' contentions is that the power to alter the boundaries of the No. 1 Branch without its consent is a power to dissolve the Branch "as it presently exists and constitute a new branch". I reject the submission that the power is a power to dissolve the branch - substantially for the same reasons as those given earlier in deciding that the No. 1 Branch would not be dissolved upon the certification of the rule alteration (notwithstanding that its area and membership would both be reduced in size). Another contention is that the rules contravene s.140(1)(c) in that, so construed, they permit an alteration of the boundaries which would render some members of the No. 1 Branch ineligible to remain members of that branch. However, I have already expressed the opinion earlier that the power to alter the boundaries, if exercised, does not have that result; paragraph 4 of the amended rule to show cause must be discharged.
The applicants also submit that the rules of the Federation contravene s. 140(1) in "a specified respect in that they fail to make a provision required by s. 140(1)(d) of the Act, namely, provision for the autonomy of a branch in matters affecting members of the branch only". The meaning of the words "in matters affecting members of the branch only" was considered in Mapstone and Ors. v. Maynes and Ors. (1983) 4 IR 198 where Fitzgerald J. (at 205) said:-

"I do not understand that to mean that merely because a matter affects any person other than a member of a branch, e.g. an employer, it is necessarily not a subject of branch autonomy. Such an approach would largely deprive par.140(1)(d) of practical effect. The better approach, having regard to the subject matter of s.140, seems to me to regard par.140(1)(d) as directed to ensuring autonomy to a branch in respect of matters which do not affect the organization itself or other branches or the members of other branches; it is in that sense that matters may affect only the members of a branch. This still involves significant limitations."

In my opinion rule 35, in providing that "all branches shall be completely and absolutely autonomous within the ambit of these Rules", makes the provision required by s. 140(1)(d) of the Act and, for reasons given earlier, the autonomy there provided is not impaired by the other rules upon which the applicants have sought to rely; paragraph 5 of the amended rule to show cause must be discharged.

Lastly, the applicants submit that, if the resolutions were authorized by the rules (as now found), then the rules of the Federation, and in particular rules 13(b), 31 and 34(c), contravene s. 140(1) of the Act in that, read in the light of rule 13(e) of the Standard Branch Rules, they permit a person elected to an office within the No. 1 Branch, including the secondnamed applicant, to be "effectively dismissed from office otherwise than in accordance with section 133(1)(f) of the Act". Earlier in these reasons, in considering the contention that the resolution would substantially impair the autonomy of the No. 1 Branch, I rejected a submission that an alteration of the boundaries of the No. 1 Branch, prescribed by rule 34(c), would transfer the membership of an officer of the No. 1 Branch to the No. 2 Branch and thereby render the officer "ineligible to continue to hold office". For similar reasons, in my opinion the provisions of the rules do not permit an officer of a branch, such as the secondnamed applicant, to be "effectively dismissed from office otherwise than in accordance with s. 133(1)(f) of the Act". Accordingly, I am not prepared to uphold the claim that the rules contravene s.140(1) of the Act; paragraph 6 of the amended rule to show cause must also be discharged.
For the foregoing reasons the rule to show cause, as amended by consent at the hearing, is discharged.

[1984] FCA 179

28 JUNE 1984