Re: APPLICATION BY DAMIEN STAPLETON; GEORGE RYAN AND JOHN DAVID WESTON FOR AN INQUIRY INTO AN ELECTION FOR OFFICES IN THE AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLOYEES ASSOCIATION N.S.W. No. 9A of 1982 N.S.W. No. 28 of 1982 N.S.W. No. 36 of 1982 Industrial law 5 IR 341
COURT
IN THE FEDERAL COURT OF AUSTRALIA
N.S.W. DISTRICT REGISTRY INDUSTRIAL DIVISION Evatt J.
CATCHWORDS
Industrial law - registered organization of employees - Inquiries into Election for offices in Branch of organization - whether Industrial Registrar has power to delete part of an organization rule amendment submitted for his consent - whether the organization's rules providing that an unfinancial member on paying arrears remains unfinancial for a further month is oppressive, unreasonable or unjust - whether the organization's rule providing that a member, to stand for office, must have been continuously financial for the 12 months prior to nomination is oppressive, unreasonable or unjust - whether a member "on deductions" becomes financial as from the time of deduction by the employer or only from the time of receipt of deductions by the union office - whether a candidate for office who is financial at nomination but becomes unfinancial during the ballot (and where the rules are silent) can continue as a candidate.
1. The Court determines that irregularities have occurred in the 1982 election for the officers of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association, hereinafter called the ATAEA, being an election for the offices of president, vice-president, secretary/treasurer, assistant secretary and 12 executive members.
2. The Court orders that a new election be held pursuant to s.165A of the Conciliation and Arbitration Act (the Act) for all offices in the New South Wales Branch of the ATAEA and directs that such election be arranged by the Industrial Registrar appointed under the Act in accordance with the following scheme and timetable:
(a) In the week commencing 23 April 1984 the returning officer shall cause to be circulated to all members of the ATAEA whether financial or not a notice in accordance with rule 42A(b)(ii) of the rules of the organization. (b) On 8 June 1984 an advertisement be placed in the Sydney Morning Herald and the Daily Telegraph inviting nominations for the said offices in accordance with the provisions of rule 42A(c) of the rules of the organization.
(c) Nominations to open on 29 June 1984;
(d) Nominations to close on 20 July 1984;
(e) The ballot where necessary to commence on 10 August 1984
(f) The ballot to conclude on 31 August 1984.
3. The Court directs that the returning officer conducts the said election on the basis that:
(i) That the words "and for a period of one calendar month thereafter" in certified rule 9(a) of the rules of the organization are deleted;
(ii) That the word "continuously" in rule 47(c) of the rules of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Lamb v Moss [1983] FCA 254
Case
[1983] FCA 254
Decision Date
CaseChat Overview and Summary
In the case of Lamb v Moss, the dispute arose from the 1982 election for the officers of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association (ATAEA), including the positions of president, vice-president, secretary/treasurer, assistant secretary, and 12 executive members. The court was tasked with addressing several issues concerning the fairness and legality of the election process and the internal rules of the ATAEA. These issues included whether the Industrial Registrar had the authority to modify parts of an organisation rule amendment, the fairness of rules concerning membership status and eligibility for office, and the interpretation of financial membership status in the context of candidate eligibility.
The court found that the Industrial Registrar did have the power to delete parts of an organisation rule amendment if it was deemed necessary for the amendment to be approved. The court also held that certain rules of the ATAEA were oppressive, unreasonable, or unjust. Specifically, the rule that a member who was on deductions remained unfinancial for a further month was found to be oppressive. Additionally, the requirement that a candidate for office must have been continuously financial for the 12 months prior to nomination was considered unjust. The court ruled that a member "on deductions" becomes financial as of the time the deduction is made by the employer, not from the time of receipt of the deductions by the union office. Furthermore, the court determined that a candidate who is financial at nomination but becomes unfinancial during the ballot can still continue as a candidate if the rules are silent on this issue.
The court ordered a new election to be held in accordance with specific provisions, including the deletion of certain words in the rules to ensure fairness. The court also directed that the individuals elected in the 1982 election would retain their positions until the new election was concluded. Additionally, the court ordered the ATAEA to pay the costs of certain parties involved in the proceedings and granted liberty to any party to apply for further orders. The exhibits in the matter were to be handed out as per the court's direction.
Orders
Orders of the court
1. The Court determines that irregularities have occurred in the 1982 election for the officers of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association, hereinafter called the ATAEA, being an election for the offices of president, vice-president, secretary/treasurer, assistant secretary and 12 executive members.
2. The Court orders that a new election be held pursuant to s.165A of the Conciliation and Arbitration Act (the Act) for all offices in the New South Wales Branch of the ATAEA and directs that such election be arranged by the Industrial Registrar appointed under the Act in accordance with the following scheme and timetable:
(a) In the week commencing 23 April 1984 the returning officer shall cause to be circulated to all members of the ATAEA whether financial or not a notice in accordance with rule 42A(b)(ii) of the rules of the organization. (b) On 8 June 1984 an advertisement be placed in the Sydney Morning Herald and the Daily Telegraph inviting nominations for the said offices in accordance with the provisions of rule 42A(c) of the rules of the organization.
(c) Nominations to open on 29 June 1984;
(d) Nominations to close on 20 July 1984;
(e) The ballot where necessary to commence on 10 August 1984
(f) The ballot to conclude on 31 August 1984.
3. The Court directs that the returning officer conducts the said election on the basis that:
(i) That the words "and for a period of one calendar month thereafter" in certified rule 9(a) of the rules of the organization are deleted;
(ii) That the word "continuously" in rule 47(c) of the rules of the organization is omitted;
(iii) That all the words after the word "nomination" where first appearing in certified rule 47(c) of the rules of the organization are deleted.
4. The Court orders that until the new election is concluded each of the persons elected to the respective offices of president, vice-president, secretary, treasurer, assistant secretary and twelve executive members in the subject election shall each hold his or her respective office and shall be deemed for all purposes to have held such office in the New South Wales Branch of the organization since 24 February 1982 and each shall be a member of and shall be deemed for all purposes to have been a member of the executive of the New South Wales Branch of the organization since that date.
5. The Court orders that the costs of the following parties, namely, Mr Stapleton, Mr Jenkins, Mr Taylor, Mr Ford and Mr Nelson be paid by the ATAEA.
6. Liberty is granted to any party to apply on seven days notice to the Court and to the other parties to the proceedings.