Leveridge, Elizabeth v Shop Distributive & Allied Employees Association

LEVERIDGE v. SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION (1977) 31 FLR
385
*(EDITORS' NOTE: Section 141 of the Concilation and
Arbitration Act 1904 was amended by Act No. 108 of
1977, which was assented to on 21st October, 1977,
but has not yet been proclaimed, so as to include
sub-s. (8A) which provides for the making of orders
under s. 140 in proceedings under s. 141.)
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Smithers(1), J.B. Sweeney(2) and Evatt(3) JJ.

CATCHWORDS

Ref to: 31 FLR 431 Conciliation and Arbitration - Registered organizations - Rules - Qualification of two-year period of continuous financial membership for eligibility to nominate to certain offices - Whether oppressive, unreasonable or unjust - Statutory objects - Organization of representative bodies of employees - Participation by members in affairs of organization - Structure of organization - Composition of membership - Factual context in which rules operate - Preponderance of members short term - Exclusion of such members from holding office - Nature of office - Conciliation and Arbitration Act 1904, ss. 2 (e), (f), 140.

Conciliation and Arbitration - Registered organizations - Rules - Declaration that rule invalid - Whether s. 140 (1) operates of own force to invalidate rule - Whether declaration under s. 140 antecedent condition of finding of invalidity - Whether rule invalid from date of order or date in relation to which its invalidity is challenged - Part of rule in contravention of s. 140 - Severability - Conciliation and Arbitration Act 1904, ss. 140 (1), (5), 141, Pt IX.

Conciliation and Arbitration - Registered organizations - Officially conducted election - Alleged irregularity in conduct of election - Rejection of nomination - Rules imposing qualification of period of financial membership for eligibility to nominate to certain offices - Rules invalid - Whether action taken in accordance with invalid rules constitutes irregularity - Conciliation and Arbitration Act 1904, ss. 4, 141 (9), Pt XI.

Conciliation and Arbitration - Registered organizations - Rules - Directions for performance of rules - Transfer of member from one branch to another - Failure of rules to provide for reception of transferring member - Whether enrolment of member required for membership of branch - Nature of membership of organization and branch - Administrative nature of provisions organizing members in branches - Financiality - Whether transferring member liable to two branches for membership contributions - Construction of rules - Express and implied terms in rules - Conciliation and Arbitration Act 1904, s. 141.

HEADNOTE

Section 140 of the Conciliation and Arbitration Act 1904 provides by sub-s. (1) (c) that the rules of an organization shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act are oppressive, unreasonable or unjust. Subsection (5) provides that an order under the section may declare that the whole or a part of a rule contravenes sub-s. (1) and, where such an order is made, the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order. Section 141 provides by sub-s. (1) that the court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules. Subsection (5) provides that an order shall not be made under the section that would have the effect of treating as invalid an officially conducted ballot or a step in such ballot. Section 159 enables a member of an organization to institute an inquiry into an officially conducted election where he claims that an irregularity has occurred in or in connexion with an election for an office in the organization or a branch.

Rule 5 of the branch rules of an organization provided for the government of the branch by a branch conference, delegates to which included under par. (c) (ii) persons who must have been financial members of the union for not less than two years immediately preceding nomination. Branch r. 36 dealt with elections and provided under sub-r. (b) that no member should be eligible to stand for election to any position unless he had been a financial member of the union for two years immediately preceding the close of nominations. The rules of the organization provided by r. 27 (2) that any member who left the industry or moved into another branch area might request a clearance from his branch; upon such a request, the branch should issue a clearance provided the member had paid all moneys owing and was financial on the books of the branch.

In February 1977 L., a financial member of the New South Wales branch of an organization, took up employment in Victoria and sought to join the Victorian branch of the organization. Subsequently, L. nominated for the position of divisional delegate to the conference of the Victorian branch and for Victorian branch delegate to the national council of the organization, nominations for both of which, under the official conduct of the election, closed on 4th March, 1977. The returning officer rejected the nomination and those of a number of other members including M. and W. on the ground that they were not financial members for not less than two years immediately preceding the close of nominations. On 15th March, 1977, L. instituted proceedings under ss. 140 and 141. Inquiries were instituted pursuant to s. 159 of the Act by other members into irregularities they alleged in the conduct of the election.

Held: (1) On a proper construction, s. 140 (1) operated of its own force to invalidate a rule contravening its provisions and no implication arose that an order under s. 140 was a condition of an attack upon the validity of a rule in proceedings other than under s. 140 where the validity of the rule was relevant to an issue, the critical date in relation to the validity of the rule being the date with respect to which this provision was challenged.

The Queen v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (Australian Section) (Shearer's case) (1960), 103 CLR 368, applied.

(2) The determination of the validity or otherwise of branch rr. 5 (c) (ii) and 36 (b) required an examination of the operation of the rules in the context of the organizational structure of the branch in its setting in the federal organization and the characteristics of the membership. On the evidence, the branch rules excluded a large majority of its members from holding office and while the rules could not be said to operate unreasonably in relation to members having under one year's membership, they imposed unreasonable restrictions upon members of one or more year's membership.

Cameron v. Australian Workers' Union (1959), 2 FLR 45, and MacDonald v. Amalgamated Engineering Union (Australian Section) (1962), 3 FLR 446, applied.

Observations on the distinction between rules imposing qualifications upon nomination for important offices and those imposing qualifications upon nominations for membership of council and bodies with a large membership. Observations on the validity of rules requiring a period of continuous financial membership as a qualification for eligibility to nominate for office.

(3) On its proper construction, s. 140 (5) is intended to operate on the substance of provisions in rules and is not dependent upon modes of expression nor upon the division of a rule according to subject matter. Accordingly, declarations, operative from the date of the declaration, should be granted under s. 140 (5) invalidating that part of branch r. 5 (c) (ii) which required that candidates for election as division delegates to branch conference must have been financial members for not less than two years immediately preceding nomination for such election and that part of branch r. 36 (b) which provided that a member is not eligible to stand for election to the position of division delegate to branch conference or of branch delegate to national council unless he has been a financial member of the union for two years immediately preceding the close of nominations for such election.

(4) The organization of the membership and the distribution of functions and authority under the federal and branch rules was designed to support the existence and functioning of the association as a single entity representing the whole of the membership, with the distribution of members between the branches being an aspect of the organizational structure designed for administrative order. On a proper construction, the rules did not contemplate a member of the organization who was not also a member of a branch and, accordingly, the failure of the Victorian branch rules to provide for the administrative matter of enrolment of a person transferring from another branch did not prevent that person from obtaining Victorian branch membership on such a transfer, with his financial status in the organization attaching to him notwithstanding his membership of the new branch.

(5) As the express terms of the rules did not contemplate that a member should incur a double liability in respect of the one period for contributions to both the branch from which he had transferred and that to which he transferred, and as an intention was reasonably to be inferred from the rules that double liability should not occur, it was necessary to imply a term that a transferring member should carry with him a contribution credit and that the branch from which he had transferred should pay the amount of the credit to the branch to which he transferred. On the evidence, the claimant L. was a member of the Victorian branch on 14th February, 1977, but relief under s. 141 should be deferred pending clarification of her financial status in the Victorian branch as at 4th March, 1977.

Heimann v. Commonwealth (1938), 38 SR (NSW) 691, applied.

(6) As M. was, on the evidence, a financial member immediately before the close of nominations for the position of division delegate to branch conference, the returning officer's rejection of his nomination on the ground that he was not a financial member for two years immediately before the close of nominations, was, in the light of the invalidity found in branch rr. 5 (c) (ii) and 36 (b) which also existed at the time of the close of nominations, an irregularity in the conduct of a step in the election and, accordingly, the election should be declared void and a fresh election conducted.

(7) On the evidence, while W. was not a financial member for two years immediately before the close of nominations called for the position of delegate to national council, he was a financial member at that time and, accordingly, the returning officer's rejection of his nomination on the ground that he was not a financial member for two years immediately before the close of nominations was, in the light of the invalidity found in branch rr. 5 (c) (ii) and 36 (b) which also existed at the time of the close of nominations, an irregularity in the conduct of a step in the election and accordingly, the election should be declared void and a fresh election conducted.

HEARING

Melbourne, 1977, March 29-31; April 14, 19-22; June 15; August 26.

#DATE 26:08:1977

RULES NISI AND INQUIRIES.

A member of an organization registered under the Conciliation and Arbitration Act 1904 instituted proceedings under ss. 140 and 141 of the Act seeking a declaration that certain of the rules of the Victorian branch of the organization contravened s. 140 in certain respects and directions that certain named respondents perform and observe the rules by treating the claimant as a member of the Victorian branch as from 14th February, 1977.

Inquiries were referred to the court following applications by a number of members for inquiries into irregularities alleged in the official conduct of an election for division delegates to the Victorian branch conference and of Victorian branch delegates to national council. The full facts are set out in the judgment of Smithers J.

K. R. Handley Q.C. and R. C. Kenzie, for the applicant under s. 140.

K. R. Handley Q.C. and J. W. Shaw, for the applicant under s. 141.

H. T. Nathan, for the claimants Messrs. Webster, Maddern and Alexakis.

Gareth Evans, for the claimant Mr. Moloney.

P. E. Powell Q.C. and B. D. Lawrence, for certain named respondents.

A. J. Macken, for the respondent organization.

J. E. R. Bland, for the respondent returning officer.

Cur. adv. vult.

Solicitors for the applicant: Steve Masselos & Co.

Solicitors for the claimants Messrs. Webster, Maddern and Alexakis: Alfred Branicki & Associates.

Solicitors for the claimant Mr. Moloney: Holding Redlich & Co.

Solicitors for certain respondents: Maurice Blackburn & Co.

Solicitor for the respondent organization: A. J. Macken.

Solicitor for the respondent returning officer: A. R. Neaves (Commonwealth Crown Solicitor).

JUDGE1

August 26.

The following judgments were delivered.

SMITHERS J.

V No. 4 of 1977.

In these proceedings the claimant Mrs. Leveridge seeks orders: (i) that r. 5 (c) (ii) of the rules of the Victorian branch of the Shop Distributive and Allied Employees' Association contravenes s. 140 (1) (c) of the Conciliation and Arbitration Act 1904; (ii) that r. 36 (b) of the rules of the Victorian branch of the Shop Distributive and Allied Employees' Association contravenes s. 140 (1) (c) of the Conciliation and Arbitration Act 1904; (iii) such further or other orders, interim or final, as the nature of the case may require upon the ground set forth in the affidavit of the claimant sworn on 14th March, 1977, and filed herein. (at p389)

Mr. Handley Q.C. and Mr. Kenzie appeared for the claimant, Mr. Macken appeared for the respondent association. Mr. Powell Q.C. and Mr. Lawrence appeared for the members of the State council of the Victorian branch of the Shop Distributive and Allied Employees' Association who appeared as persons on whom pursuant to an order of Sweeney J. notice of these proceedings had been served. (at p389)
Rules 5 (b) and (c) and 36 (a) and (b) are in the following terms:

"5. BRANCH CONFERENCE.

(b) The conference shall be the supreme governing body of the branch.

(c) Delegates to the conference shall be:

(i) The president, the vice-president, the secretary-treasurer, the assistant secretary-treasurer; and

(ii) Delegates from the divisions who must have been financial members of the union for not less than two years immediately preceding the close of nominations and have been elected in accordance with these rules, provided that for the branch conference to be held in June 1975, persons who have been financial members for not less than twelve months immediately prior to nomination shall be eligible to be elected as delegates." "36. ELECTIONS.

(a) The elections to be conducted pursuant to these rules shall be as follows:

(i) the election of division delegates to conference;

(ii) the election of secretary-treasurer and the assistant secretary-treasurer;

(iii) the election of branch delegates to national council;

(iv) the election, where necessary, of trustees.

(b) No member shall be eligible to stand for election to any position (other than for the position of trustee for which position a life member may also be eligible) unless he has been a financial member of the union for two years immediately preceding the close of nominations, provided that for any election held prior to 31st December, 1976, a member shall be eligible to stand for election if he has been a financial member for twelve months immediately preceding the close of nominations." (at p390)

It appears that the main interest of the claimant in these proceedings is related to her desire to be a candidate for election as a divisional delegate to the Victorian branch conference in an election for that office currently in progress. That election is being conducted by Mr. Abbott, the Electoral Officer for the State of Victoria, pursuant to a request of the branch under s. 170 of the Conciliation and Arbitration Act 1904. The date on which nominations for that election closed as specified by Mr. Abbott was 4th March, 1977. (at p390)
The claimant did nominate as a candidate on or prior to that date but the returning officer rejected her nomination on the grounds that the records of the association did not show that she was a member of the Victorian branch. It also appears that even if, as she alleges, she were a member of the Victorian branch on 4th March, 1977, she had not been a member of the branch for a period of two years prior to that date. (at p390)
It is clear however that she is and has been a member of the association at all material times. Accordingly she is entitled to have the question of the validity of the rules in question determined under s. 140 of the Act. (at p390)
However, it is with relation to 4th March, 1977, that her challenge to the rules in question is intended to have practical significance. (at p390)
But the rule nisi in these proceedings was not made until 15th March, 1977. Accordingly a question arises as to the significance, with respect to the validity of the rules as at 4th March, 1977, of a declaration that the rules contravene s. 140 (1) in some respect which may be made in these proceedings.

Relief in proceedings commenced subsequent to date in respect of which a rule is challenged. (at p390)
The claimant has not sought a declaration of this Court such as is suggested in the observations of Windeyer J. in The Queen v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (Australian Section) (1960) 103 CLR 368 , hereinafter referred to as "Shearer's case" namely that "at the date of the member's application" the challenged rules contravened s. 140 (1). (at p390)
In the absence of some special form of declaration relating back to 4th March it is difficult to see how a declaration made under s. 140 will assist the claimant to obtain acceptance by the returning officer of her nomination in the election for divisional delegate to branch conference and to national council. An order that a rule contravenes s. 140 (1), as contemplated by s. 140 (5) results in the rule being deemed to be void only from the date on which the order is made. And, if an order in a proceeding under s. 140 is regarded as being made pursuant to sub-ss. (2) and (3) of s. 140 only, it would be made only inter partes and the returning officer is not a party to these proceedings. (at p391)
If the claimant seeks to use the order in proceedings under s. 141, apart from any question as to whether the electoral officer is a person bound to obey the rules of the association, sub-ss. (5) and (9) of s. 141 expressly provide that in proceedings under s. 141 no order is to be made which would have the effect of invalidating a step taken in an officially conducted election. (at p391)
The claimant has not sought an inquiry into the election pursuant to s. 159 of the Act. Even if she did an order made in these proceedings under s. 140 (5) would say nothing as to the validity of the rules in question as at 4th March, 1977. (at p391)
However the validity of the rules in question in this case as at 4th March, 1977, is under challenge in proceedings by members of the association other than the claimant in proceedings V Nos. 9, 10 and 12 of 1977 brought by such members under s. 159 and instituted in this Court by virtue of s. 159 (4) (a) as inquiries as to whether the rejection of their nominations on grounds depending upon the validity of those rules was an irregularity in a step in the election. Those inquiries were held in this Court in conjunction with these proceedings of the claimant under s. 140 and certain other proceedings (V No. 5 of 1977) brought by the claimant under s. 141 of the Act. (at p391)

It is to be observed that according to circumstances, a rule may have actually contravened s. 140 (1) from the time sub-s. (1) was enacted, or from the time the rule was first made, or from some later time when circumstances arose as a result of which the rule operated in a manner which was in contravention of sub-s. (1). (at p391)
In the circumstances it is desirable to consider the effect of s. 140 in relation to proceedings brought otherwise than under that section where the validity of a rule of an organization registered under s. 132 of the Act is in issue in relation to a date prior to an order under s. 140 or in the absence of any such order, i.e. because Mrs. Leveridge did not seek such an order. (at p391)
If it is the effect of s. 140 that rules of an organization which actually are in contravention of sub-s. (1) are nevertheless to be considered and treated as valid until an order is made under sub-s. (5) and then treated as void only as from the date of that order, then, neither the claimant nor the other members whose nominations have been rejected can obtain any relief even although an order may be made at this stage that the rules contravene sub-s. (1). (at p391)
Apart from the observations of Windeyer J. in Shearer's case (1960) 103 CLR, at p 389 , there is no judicial support for the view that in proceedings under s. 140 an order may be made which will have the effect of establishing that a rule has contravened sub-s. (1) from some date prior to the making of the order or the relevant rule nisi. It is difficult from the terms of s. 140 to find a basis of authority for making an order so devised. In addition the observations of the learned justice themselves are somewhat tentative. But he recognizes the desirability of a member being able to challenge enforcement against him of a rule which does in fact contravene the provisions of sub-s. (1) but is not the subject of an order to that effect and he expresses the view that in proceedings under s. 140 the issue whether a rule contravenes sub-s. (1) should be determined by considering whether it contravened that subsection at the date in relation to which its observance is challenged. Again however there is no other judicial support for this view. (at p392)
It rests no doubt on what may be thought to be implied in the scheme of s. 140 and the intention to be seen in s. 140 to protect members from the operation of oppressive rules. (at p392)
But if the view of the majority in Shearer's case (1960) 103 CLR, at pp 372-388 is accepted then the difficulties discussed above are not encountered. The view of the majority is that sub-s. (1) operates of its own force to invalidate a rule which contravenes its provisions. It sees the judicial procedure authorized in s. 140 as providing a vehicle for a member to obtain an order that an existing rule contravenes s. 140 (1) which will operate inter partes but which will also operate to establish, in rem, as it were, that the rule in question is to be treated in all places and for all purposes as being void as from the date of the order. (at p392)
In accordance with this view no implication arises that an order under s. 140 is a condition of an attack upon the validity of a rule in any proceedings in any court where the validity of the rule may be relevant to the issues to be decided therein. Also if the correct view is that sub-s. (1) does operate of its own force to render void any rule which contravenes that subsection, it would seem to follow that whenever in any proceeding before any court an issue arises in the determination of which the validity or otherwise of a union rule, according to the standards prescribed in sub-s. (1) is relevant, it is the duty of that court where no relevant order has been made under s. 140 to determine for itself whether, with respect to any particular date, sub-s. (1) has operated to invalidate the rule. Not only would this appear to be involved in the reasons expressed by the majority of the justices in Shearer's case but it would appear to follow also from what was said by the Chief Justice and Kitto J. (1960) 103 CLR, at pp 379-385 . These justices took the view that sub-s. (1) did not of itself operate to invalidate a rule, but Kitto J., with whom the Chief Justice agreed, said that on the assumption that sub-s. (1) does operate of its own force to invalidate a rule which contravenes its provisions, the section would not possibly mean that invalidation of a rule by force of sub-s. (1) can never be judicially recognized until a second invalidation has been brought about by the application of sub-s. (5). And it would seem to follow on the assumption postulated that invalidity of a rule by force of sub-s. (1) must always be judicially recognized where it goes to a relevant issue. (at p393)
If this be so a member who has suffered as the result of action adverse to him being taken under a rule which does contravene sub-s. (1) of s. 140 but before he can seek an order under sub-s. (2) is not without a remedy or a procedure to obtain it. He may proceed under s. 141. (at p393)
In such a proceeding the issues raised might well involve the validity of a rule pursuant to which action, for example dismissal from office, had previously been taken against him; cf. Cameron v. Duncan (1965) 8 FLR 148, at p 248 . The critical date on the issue of the validity of the rule would be the date of the action taken. That, in the words of Windeyer J. would be the date "in relation to which its observance is challenged" (1960) 103 CLR, at p 389 . The court not being under any restrictions arising by implication from s. 140 would be required to consider the state of the rules at the critical date so that it would make an order for the performance and observance of the rules as they really were on and in relation to that date. (at p393)
Similarly there is no reason to think that an implication is to be found in s. 140 or other provisions of the Act that, where there is no antecedent order under s. 140, the court is unable to investigate for itself the state of the rules at a critical date and treat as void any rule or part of a rule which according to the findings made by it contravened sub-s. (1) at the relevant time. (at p393)
But this all depends on whether the correct view is that s. 140 (1) operates of its own force to render void rules contravening its provisions. (at p393)
It is said that this view is expressed in Shearer's case only by way of obiter dicta. But it has stood now from 1960, as the majority view of the ultimate Court of Appeal formally expressed in a proceeding in which all the members of the High Court specifically directed their attention to the question. Since that time it has been applied in this Court. (See also Atkinson v. Lamont (1938) QSR 33 . Since that time also the Act has been dealt with by Parliament on a number of occasions in various respects. Sections 140 and 141 have been under review but nothing has been done to change any words in any way which would indicate that Parliament is not satisfied with the majority view that s. 140 (1) does operate of its own force to invalidate rules which contravene its provision or with the interpretation of the majority as to the effect of sub-s. (5). In addition the view of the majority contributes so materially and it would seem, so necessarily, to the protection and relief of members of organizations from the operation against them of oppressive rules that there is good reason to think that it accurately reflects the intention of Parliament. I would refer also on this question to the observations in my reasons in Clarke v. Maynes (1977) LB Co's Indus Arb Serv, Current Review, p 12 . (at p394)
Accordingly it will be necessary for the court in proceedings V Nos. 5, 9, 10 and 12 to ascertain whether on 4th March, 1977, in the circumstances then existing, rr. 5 (c) (ii) and 36 (b) did contravene the provisions of s. 140 (1).

Rules 5 (c) (ii) and 36 (b) - oppressive or unreasonable? (at p394)
It is said that the invalidity of branch rr. 5 (c) (ii) and 36 (b) arises out of: (a) the imposition upon each union member of a condition of the right to nominate for the office of divisional delegate to conference or for the other offices referred to in r. 36 (b) that he shall have been a member continuously during two years immediately preceding the close of nominations for any such office; and (b) the imposition upon each member of a condition of so nominating that he has been a financial member during the relevant two-year period of membership. (at p394)
From the argument presented by counsel it was clear that the solution of the questions raised required an examination of the operation of the rules in question in the context of the organizational structure of the branch in its setting in the federal organization and the characteristics of the membership. (at p394)
Relevant characteristics are that the membership includes, first, a substantial number of employees who engage in employment as a shop assistant or other occupation within the membership eligibility rules as a life-long or certainly long-term career and hold their union membership during a correspondingly long period; secondly, a substantial number of employees whose employment as a shop assistant is short-term and who engage therein and hold membership between one and three years; and, thirdly, a substantial number of employees whose employment in the industry may be termed transitory and who engage therein and hold their membership for a few months or perhaps for a year. In addition there is a very high turnover of members. (at p394)
The Shop Distributive and Allied Employees' Association (hereinafter called the "association") is a large organization with branches in several States. The current membership of the Victorian branch is 36,000 or thereabouts. The New South Wales branch is the largest branch. It has a current membership exceeding 45,000. The organization of the association and the branches and in particular the Victorian branch may be seen from the following provisions of the rules. (at p394)
The supreme governing body of the association is the national council. It meets in ordinary session in October each second year, but may meet more often. The national council consists of the national president, national vice-president, national secretary-treasurer, national assistant secretary and delegates of each branch elected biennially directly by the members of each branch (federal r. 8 (a)). A branch with a membership in excess of 35,501 is entitled to six national councillors. The national president, national vice-president, national secretary-treasurer and national assistant secretary are elected by and from the national council (federal r. 14). Between meetings of the national council the affairs of the association at the highest level are conducted by the national executive. That executive consists of the four officers mentioned above and at least three other members elected by and from the national council at its ordinary biennial meeting (federal r. 12 (a)). (at p395)
The supreme governing body of the Victorian branch is the branch conference. There are thirty-seven members of conference comprising the branch president, vice-president, secretary-treasurer and assistant secretary-treasurer and thirty-three delegates from divisions. There are eleven divisions throughout Victoria. The metropolitan division has the largest membership. It elects twenty delegates to conference. Ballarat, Bendigo and Geelong divisions elect two delegates each and the seven other divisions one each (branch r. 5). (at p395)
Conference is elected every second year. It meets only once, that being in June of the year of election unless specially called together for some particular reason. Nominations for divisional delegates to branch conference are to be called for not later than the month of December in each year preceding the year of conference and shall close in March of the year of conference (branch r. 40). If an election is necessary in any division a ballot is conducted of the members of that division (branch r. 40 (c)). (at p395)
Members of State council other than the secretary-treasurer and assistant secretary-treasurer are elected by secret ballot of the delegates present at the conference (branch r. 41 (1) (a)). The branch president, vice-president, nine metropolitan State councillors and four country State councillors are elected by secret ballot at each conference (branch r. 41 (1) (b)). They are elected by and from the delegates to conference and hold office until the conclusion of the next succeeding branch conference (cf. branch r. 12 (b) and branch r. 41 (1) (c)). (at p395)
Between branch conferences the management of the branch is in the control of the State council which has up to seventeen members comprising the four branch officers mentioned above, nine State councillors elected by and from the metropolitan division delegates to conference and not more than four State councillors elected from the country division delegates to conference (branch r. 9). (at p396)
The branch secretary-treasurer and assistant secretary-treasurer are elected every four years by secret ballot of all members of the branch (branch r. 12 (c)). (at p396)
The government of divisions is in the hands of divisional meetings, normally held quarterly (branch r. 11). Each division has a president, vice-president, secretary-treasurer and assistant secretary-treasurer. Such officers are elected at the first divisional meeting in each calendar year (branch r. 22). (at p396)
The characteristics of the membership of the Victorian branch referred to above derive from conditions in the industry. In recent years the trend of service in shops and stores has been to self-service. This has reduced the number of skilled sales-persons required in relation to food, clothing and many commodities. This has resulted in much short-term and part-time employment in supermarkets and the like of quite young people, married women, students and other people without lasting interest in the industry. The result has been that in the Victorian branch, during the last few years, there have been admissions and terminations of membership as follows:

Admissions: 1974 17,350 1975 23,512 1976 16,280 1977 (two months) 1,865

Terminations: 1974 9,433 1975 9,266 1976 15,350 1977 (two months) 2,790 (at p396)

It further appears from the evidence that on 4th March, 1977, the proportion of branch members who had a membership of less than two years prior to that date was about sixty-six per centum. (at p396)
There is no evidence of any precise count giving further details of the length of membership of the members on that date. However, with respect to the membership of the New South Wales branch, it is reasonably established that early in 1977 the membership of that branch was: as to ten per cent of members of less than two months' duration; as to fifteen per cent of members of less than six months' duration; as to thirty per cent of members of less than twelve months' duration; as to fifty-nine per cent of members of less than two years' duration; as to seventy-five to eighty per cent of members of less than three years' duration; as to the balance of twenty to twenty-five per cent of three years or longer. (at p396)
Subject to certain qualifications it is not contested that the situation in Victoria may be reasonably estimated by reference to the New South Wales experience. (at p396)
The main qualification is that in some areas late night shopping in supermarkets and other shops takes place in Melbourne on three nights each week whereas in New South Wales it occurs only on one night each week. The effect of this would be that the proportion of members of the Victorian branch with short membership would be likely to exceed that of the New South Wales branch. (at p397)
From the testimony of Mr. Maher it would seem that from 1975 onwards the membership of the Victorian branch could be divided into three categories, first, some 12,000 members being part-time casuals of the schoolboy, student, married woman classifications many of whom work less than ten hours per week and are transitory in their association with the industry and the union; secondly, about 12,000 part-time employees working between ten and thirty-nine hours per week and with relatively short-term interest in the industry and union membership; and, thirdly, full-time employees with a long-term interest in the industry and the union. (at p397)
It was pointed out by Mr. Powell that as to the 24,000 in the first and second groups the figures of new admissions and terminations would indicate that in any period of two years that group would have suffered a turnover of one and a half times or perhaps more. And no doubt the greatest turnover is in the group which has the most fleeting association with the industry, namely those in the first category. (at p397)
It is a reasonable inference, therefore, that in the Victorian branch those members of three or more years of membership constitute between twenty per cent and twenty-five per cent of the total membership. It may be inferred also that between nine per cent and fourteen per cent have a membership of between two and three years. As to the remaining sixty-six per cent it may be inferred that perhaps thirty-three per cent are in the under one-year category and thirty-three per cent in the one-year to two-years category. (at p397)
It is to be observed also that making the best inference possible from the available evidence, the average length of membership of the members of this group of forty per cent is about two years. (at p397)
The two-year members are excluded from office altogether by the current rules. A member whose membership lasts for three years may possibly be able to gain and take office, but only if he joined the association during a particular period of nine months ending two years and three months before June of a year of conference. Thus, he could only nominate in March 1979 and take up office in June 1979 if he became a member in the period commencing in June 1976 and ending in February 1977. If he joined earlier his term of membership would have expired before he took up office. If he joined later he would not have two years' membership before nominating. It is clear, therefore, that even with respect to members of three years' standing the general run of such members would be excluded from taking up office. It may be observed also that even a member who remains a member for four years has only a slight chance of ever qualifying to stand for office. Unless his membership commenced at least two years before the month of March of an election year he would be ineligible for the election in that year and his membership would not last long enough to enable him to stand in the election to be held two years later. (at p398)
It is to be noted also that a member who may remain a member for more than four years but whose membership commenced less than two years before the month of March in an election year will have to wait until March two years further on for an opportunity to stand for office. In such a case the two-year "apprenticeship" period may be extended nearly to four years. (at p398)
If one were to consider a union none of the members of which held their membership for more than two or three years, it would be manifest that members of less than three years' standing would have to be afforded the right to hold office, and this is not only because office bearers could not otherwise be provided but because in no other way could members fully participate in the affairs of the union; cf. s. 2 (f) of the Conciliation and Arbitration Act. No doubt such a union would be an unlikely phenomenon, but the circumstances of the association now before the court certainly approach it. So many of the members of this branch, about seventy-five per cent, are in the under-three-year category that the operations of the branch must necessarily be directed largely to the promotion of the interests of that section of members. Once that is seen, then although the association is not one all of whose members are short term, it is an association the great majority of whose members are short term, one expects that the representative provisions of the rules would reflect that situation. They do, but, for practical purposes, only to the extent that short-term members may vote for the officers if their membership happens to coincide with the time of the biennial ballots. (at p398)

The conclusion is that the association represents a large membership the bulk of whom are members for relatively short terms but has rules which: (a) prevent sixty-six per cent of the membership from ever holding office; (b) prevent the greater part of an additional ten per cent of groups of members, forming about ten per cent of the membership, from ever holding office; and (c) exclude many of the remaining members from standing for office for varying periods between two years and four years and three months. (at p398)
In the light of the foregoing the claimant contends that branch rr. 5 (c) (ii) and 36 (b) contravene the provisions of s. 140 (1) (a) and s. 140 (1) (c) of the Conciliation and Arbitration Act. Those subsections are in the following terms: "140. (1) The rules of an organization - (a) shall not be contrary to, or fail to make provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law; . . . (c) shall not impose upon applicants for membership, or 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." (at p399)
The chief objects of the Act are expressed in s. 2 and include: "(e) to encourage the organization of representative bodies of employers and employees and their registration under this Act; and (f) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization." (at p399)
It is clear from the authorities that provisions of the kind under discussion are not uncommon in registered organizations. They are based on considerations going to the stability of the organization, and the desirability of persons in office being acquainted with the rules, with the industry and with the practical administration of a union as a registered organization. (at p399)
As was said by Spicer C.J. in Cameron v. Australian Workers' Union (1959) 2 FLR 45, at p 59 : "Whether any such period of apprenticeship as a member should be a condition of candidature, and if so, the length and character of such period, are matters best left to the decision of members of the organization themselves. No doubt the decision of such questions will differ from union to union and even within a particular union such a question will prompt a variety of views. True it is that a period might be chosen which in effect precluded such a large proportion of members from seeking office that it would be unreasonable". In that case the court upheld a rule of the Australian Workers' Union which required a candidate for office to have been a member for at least five years and financial member for at least three years. (at p399)
However in MacDonald v. Amalgamated Engineering Union (Australian Section) (1962) 3 FLR 446 , the court disallowed a rule which required candidates for election to the committee of management of the organization to have at least seven years' continuous adult membership in a section which they were ineligible to join if they were not less than forty years of age and which contained in fact a minority of members of the organization. Spicer C.J. and Eggleston J. in their joint judgment said: "In our view the rules which prescribe the qualifications for the three offices referred to impose upon applicants for membership and on members of the organization conditions and restrictions which are unreasonable and unjust. It is clear that no applicant for membership who is over the age of forty can ever aspire to any of those offices. It is also clear that no member of the industrial section as such can qualify and no member of that section who has reached the age of forty can thereafter qualify. The industrial section comprises over two-thirds of the total membership. Only those members of that section who are under forty can ever qualify and even they can only qualify by transferring to section 1 before they reach the age of forty. They must then wait a further seven years before being eligible for the office in question. With the relative decline of section 1 members and the increase of industrial section members the supreme governing body of the organization and the principal executive officers are necessarily chosen from a minority section of the organization. The members of the majority section as such are for ever excluded under the rules as they now stand. (at p400)
"One of the objects of the Act is to encourage the organization of representative bodies of employees. It is possible that an organization which disqualifies more than two-thirds of its members from possible membership of its supreme governing body ought not to be considered to answer to the description of 'representative'. That description contemplates an organization which can be fairly said to represent its members. A body governed wholly by non-members would not seem to answer that description. On the other hand, an organization may be representative despite the fact that some of its members, such as juniors or members who are no longer active in the industry, are disqualified from holding office therein. One can imagine many other restrictions on the holding of offices which would not affect its representative character. But it is not necessary to reach a final conclusion on this question, since it is a separate requirement that the rules should not impose unreasonable and unjust conditions or restrictions upon applicants for membership or members. The limitation of candidates for office is stringent, and bears no relationship to fitness, capacity or experience. If free transfer between the classes of members were possible, it might be said that every member was capable of qualifying for the highest office. But for the reasons given above, many members who are of an age to give effective service can never qualify, and an aspirant who is young enough to qualify must still wait seven years after transferring to section 1. These limitations are so drastic, and affect so many members, that we are forced to conclude that having regard to the objects of the Act and the purposes of the registration of organizations under the Act, the conditions and restrictions imposed by the qualifications prescribed for election to the offices under discussion are unreasonable and unjust" (1962) 3 FLR, at pp 447-448. . (at p400)
It is unnecessary to consider the issues in this case by reference to the statutory objects set out in s. 2 (e) of the Act, that is the encouragement of the organization of representative bodies of employees and employers. But it is clear that the court which decided MacDonald's case held the view that the exclusion from office of a substantial majority of members may well, according to circumstances, constitute a restriction or condition the imposition of which upon members is unreasonable or unjust. (at p401)
Mr. Powell did not challenge this but said that the rules in question in this case do not exclude any member from standing for office. All he has to do is to remain a member long enough to qualify. This is a logical comment but it does not touch the substance of the matter, namely the practical operation of the rule upon the bulk of the membership whose short-term association with the association is such an important feature. Mr. Powell rightly argued that the court should have regard not only to the context of the rules themselves but also the factual context in which the rules operate. In considering whether conditions and restrictions imposed upon members are reasonable or otherwise the fact that average or usual length of membership is short is clearly part of the relevant factual context and the practical effect of the rules upon members of short membership, as indicated above, is of fundamental importance. (at p401)
Accordingly the branch is to be regarded as having rules which exclude a large majority of its members from holding office. But Mr. Powell argued that it was not unreasonable so to do. Mr. Powell pointed to the inconvenience and futility of electing a short-term member to office. He showed that, even if there were no qualifying period for standing for office, the membership of many members might not persist long enough for a candidate elected in March to take up his office in June. This is a valid comment, but it is not of real significance when the position of members who hold their membership for two years and for three years is considered. (at p401)
Mr. Powell also pointed out, however, that as to some thirty-three per centum of the membership it is impracticable for them, whatever reasonable rules might say, to participate as officers in the management of the association. All rules must provide time for nomination and election and it is difficult to envisage any reasonable timetable which would permit a member of even, perhaps, eight to twelve months' duration to participate usefully as an officer of the association. In addition, the interest of such a member in the affairs of the association is likely to be so peripheral that it could hardly be said that such a person would be a satisfactory officer. That is not to say, however, that in the government of the association the interests of that portion of the membership, such as they are, should not be represented so far as is reasonable. But it cannot be said that the failure of the rules to provide for the persons in that group to attain office is unreasonable. But when one passes from the under-one-year to the one to three-year group different considerations appear. It would appear that this group represents more than forty per cent of the membership at any one time. To my mind a person who is a member of a union for more than a year, or for two years or for three years cannot be said to be a member of transitory or ephemeral association with the union. Forming such a large proportion of the membership with interests not necessarily identical with those of long-time members, it is going a long way to say that that group is not to be represented in the offices of the association, such as divisional conference delegates. Mr. Powell also said that it was desirable to ensure stability in government, and that there was stability in the Victorian branch in only about one-third of its membership. He said that all the offices covered by the rules were important, carried significant responsibilities, and required a degree of experience and skill. Also the offices covered by the rules included high offices in the association and full-time offices. He urged that in respect of all the offices concerned, and particularly of the latter, restrictions of the kind in question are quite reasonable. He said also that the plebiscite provisions were practical and effective to ensure the control by members of the decisions of the various committees of the branch. In this respect he referred to federal r. 28 (a) according to which a meeting at which five per cent of the members of a branch are present may require the national secretary to submit a matter to the national executive or national council for review or decision. He referred also to r. 28 (b) according to which meetings of any three branches at each of which not less than five per cent of the financial members of the branch are present may by resolution request that a binding referendum of members be held on a proposal that the national council or the national executive take or refrain from taking any specified policy in the conduct of the association's business. (at p402)
Turning to the branch management he referred to branch r. 11 (A) pursuant to which a plebiscite to review a decision of State council or conference upon the receipt by the secretary of a petition requesting a plebiscite signed by 1,000 members of the branch or of resolutions to that effect of a specified number of divisions. (at p402)
These observations are all logical and entitled to weight. But they must be considered against the fundamental characteristic of this association that it is an organization of which the membership is dominantly short term. The unreasonableness of the rules must be assessed having regard, inter alia, to the statutory object of the encouragement of the full participation by the members in the affairs of the association as referred to in s.2 (f) of the Act. It is not to be doubted that for this purpose the affairs of the branch are the affairs of the association. To my mind it is impossible to regard the exclusion from office of such a large proportion of members as is achieved by these rules as compatible with the stated object. This statutory object was only declared by Parliament in 1973. Its presence in the Act has, of course, an influence on the degree of authority to be accorded to decisions on matters such as those now before the court which were delivered before 1973. However, in the present case it is my view that in accordance with those decisions the branch rules now in question are to be regarded as imposing unreasonable restrictions upon members even disregarding s. 2 (f). The situation is one in which an organization the bulk of whose members have short-term membership draws all the office bearers from a quite small minority with long-term membership whose interests are not necessarily the same as those of the majority. Rules imposing restrictions on members which produce that result impose restrictions which are unreasonable and oppressive. This is not to say that the requirements of stability and experience are to be ignored, but it is to say that the structure of government is to reflect the realities arising from the prevailing characteristics of the membership. It is not to say that every office in the organization is to be thrown open to the latest transitory, casual, youthful, employee. Nor is it to say that a suitable proportion of representation by persons of lengthy membership should not be required by rule in respect of all management committees and for various particular offices. Indeed, with respect to the offices of branch secretary-treasurer and assistant secretary-treasurer it cannot be said that an "apprenticeship" of two years' membership or even two years' continuous financial membership is an unreasonable condition upon the rights of members to stand for those offices. Continuity in being financial during the two-year period may be thought to be an onerous condition but it would be going too far to say that the members of the organization might not reasonably consider it appropriate for such important offices. Similarly in respect of the office of trustee the condition imposed by r. 36 (b) cannot be said to be unreasonable. (at p403)
The other offices covered by rr. 5 (c) and 36 (b) are, of course, quite different in nature. Branch conference and national council have important functions to perform but both are large bodies. To exclude participation of the shorter-term members who form the majority in the branch from participation in such bodies is, in my opinion, as indicated above, unreasonable and oppressive.

Conclusion as to contravention by a "rule or part of a rule". (at p403)
Accordingly, I am satisfied that, in so far as r. 5 (c) (ii) specifies, as a condition upon membership of delegates to conference, that part of the condition expressed in the words "for not less than two years" it imposes restrictions and conditions upon members which, having regard to the objects of the Act and the purposes of registration of organizations thereunder, are oppressive and unreasonable. (at p403)
Similarly I am satisfied that r. 36 (b), so far as it provides that no member shall be eligible to stand for election to the position of divisional delegate to conference and branch delegate to national council unless he has been a financial member of the union for two years immediately preceding the close of nominations imposes conditions and restrictions which, having regard to the objects of the Act and the purpose of registration of organizations thereunder, are oppressive and unreasonable. Accordingly, orders should be made declaring that such rules to the extent mentioned contravene the provisions of s. 140 (1); that is to say that part of r. 5 (c) (ii) which requires that candidates for election as division delegates to branch conference must have been financial members for not less than two years immediately preceding the close of nominations for such election, and that part of r. 36 (b) which provides that a member is not eligible to stand for election to the position of division delegate to branch conference (or of branch delegate to national council) unless he has been a financial member of the union for two years immediately preceding the close of nominations for such election. (at p404)
There is no difficulty about this in relation to r.5 (c) (ii) because the part of that rule which contravenes s. 140 (1) is contained in expressions which are physically distinct from the other provisions of the rule and are severable in point of subject matter. With respect to r. 36 (b) however, the critical part of the provision of that rule which is invalid is contained in the expression "any position". In that one expression is comprehended a reference to a number of different offices and it is only in respect of what the rule says concerning elections to some of those offices that there is an invalidity. In my view, however, the authority conferred on the court by sub-s. (5) of s. 140 to declare that the whole or part of a rule contravenes sub-s. (1) extends to a declaration that part of a rule contravenes the section, not only where the contravening provision is contained in separate words which may be struck out, but also where the provision which contravenes sub-s. (1) is wrapped up in a single expression operating to enact, at the same time, not only the provision which contravenes but also provisions about distinct matters which may not contravene the section. In such a case merely to strike out words would be to destroy more of the rule than is desired or required or may be justified. (at p404)
Subsection (5) of s. 140, is, in my opinion, intended to operate upon the substance of provisions in rules and is not dependent upon modes of expression or upon the division of a rule into separately numbered parts or otherwise expressed in distinct expressions each dealing with one segment of a subject. (at p404)
In this case the expression "any position" is a convenient way of indicating that the operation of the rule is to extend to elections for each of the offices set out in r. 36 (a) as though the same were severally referred to and set out seriatim in r. 36 (b). Accordingly, in my opinion, declarations and orders as indicated above are authorized by s. 140 (5). Reference may be made to Thornton v. Mackay (1946) 56 CAR 561, at p 591 ; Bowden v. Australian Workers' Union (1946) 56 CAR 530, at p 531 ; and Re Federated Ironworkers Association of Australia (1947) 59 CAR 271, at p 275 .

Requirement of continuity in financial membership. (at p405)
It was argued on behalf of the claimant that the rules in question contravene s. 140 on the separate ground that a candidate for office is required thereby to have been continuously financial for the two years immediately preceding the close of nominations. It was pointed out that the rules provide for members' contributions to be paid by two separate methods, first payment by the member at the association office or to an organizer and secondly payments made by the employer of a member from deductions made from his wages. Branch r. 30 (c) provides that so long as deductions continue to be made on his or her behalf a member shall be deemed to be a financial member of the association for all purposes of the rules. About ninety-five per cent of members are said to have their contributions deducted and paid by their employers. However there is a risk that through changes in an employer's policy a member may unwittingly fall into arrears. Also, in between periods of employment a member may not realize the necessity to attend to the matter himself and could easily fall into arrears. And other circumstances such as periods of illness or lengthy holidays could cause a member to fall into arrears. But not all employers make deductions from wages and pay union contributions. And it is apparent that members who have to make payments to the association office or to organizers are at a distinct disadvantage. Some of the members are mobile and are seldom, if ever, contacted by an organizer. Some not mobile are also seldom visited by an organizer. To make payments at the association office is inconvenient for many members especially country members. Many ordinary members are not efficient in business practices such as the use of bank accounts and postal services. In this case there is evidence that quite keen union members have, for lack of convenient facilities, fallen seriously into arrears. In respect of this section of the membership the risk of being unfinancial for a short period appears to be a major one. And of course it is common for most ordinary people to overlook payments they should make. It is said to be oppressive and unreasonable that a member perhaps of many years' financial membership should be debarred from standing for office on the rare occasions available in the association through such a failure, possibly quite accidental, and of a short duration, perhaps almost two years earlier when he was unfinancial. (at p405)

He joined the staff of James McEwan & Co. in October 1973 and signed a deduction authority and membership application on 29th October, 1973. Thereafter contributions were made to the association on his behalf by James McEwan & Co. out of wage deductions until 20th February, 1976. At that stage he ceased employment with James McEwan & Co. and joined Atom Industries Pty. Ltd. From that time until 14th October no contributions were made on his behalf nor were deductions made from his wages although he rejoined James McEwan & Co. on 8th June, 1976. During that period he had made a number of requests to the Victorian branch office for the services of an organizer and completed a new wage deduction authority and even an undated application for membership form. From October 1976, deductions from his wages were made by James McEwan & Co. in respect of his contributions and they were duly paid to the association by James McEwan & Co. until after 4th March. It was apparently in the period between February and October 1976 when no deductions were made or contributions paid that the branch endorsed the branch membership card kept in relation to Mr. Webster with the word "resigned". There would appear to have been no justification for this because mere failure to make contributions, although rendering a member unfinancial, does not operate to terminate membership of the association. Nevertheless it is clear that Mr. Webster had become unfinancial by 14th October, 1976. Accordingly, by reason of rr. 5 (c) (ii) and 36 (b) if valid, Mr. Webster could not claim entitlement to nominate as at 4th March, 1977. If those rules were invalid as at 4th March, 1977, to the extent set forth in the order of the court in proceedings V No. 4 of 1977 his entitlement to nominate was conditional upon him then being a financial member of the association or thereafter becoming financial pursuant to the provisions of s. 133 (1) (c). However the evidence, such as it is, supports the view that although Mr. Webster was in arrears with his contributions in the middle of 1976 he had paid all outstanding arrears as at 4th March, 1977. In addition, by reason of the fact that for a substantial period extending to 4th March, 1977, deductions did "continue to be made on his behalf", Mr. Webster was at that date deemed to be a financial member of the union for all purposes of the rules. See r. 30 (c). (at p420)
Accordingly, if rr. 5 (c) (ii) and 36 (b) were invalid on 4th March, 1977, Mr. Webster was entitled to nominate and the action of the returning officer in rejecting them was taken in error, although of course understandably so. There can be no doubt that such erroneous action would be an irregularity in a step in each election. Although such action may not be one of the items of conduct specified in the definition of "irregularity" in s. 4 of the Act as being included in the relevant meaning of that expression, it was an action inconsistent with the provisions of the rules as they really were. As such, it was an irregularity within the natural meaning of that word in the relevant context. (at p421)
By reason of the declaration made in V No. 4 of 1977, it is clear that for the purposes of this inquiry, rr. 5 (c) (ii) and 36 (b) are to be treated as invalid at least as from the date of that declaration. But that date and the date of the relevant rules nisi are subsequent to 4th March, 1977. However in accordance with the views expressed in the reasons for judgment in V No. 4 of 1977 it is the duty of the court in this inquiry to ascertain what were the valid rules of the Victorian branch of the association as at 4th March, 1977. This involves consideration of the invalidity of rr. 5 (c) (ii) and 36 (b) of the branch rules as at that date in the light of the provisions of s. 140 (1) of the Act. The facts and circumstances relevant to this question are set out in the reasons for judgment in V No. 4 of 1977. Those facts and circumstances are before this inquiry both because I understand that there is agreement between the relevant parties that they should be and because the court has informed itself thereof pursuant to s. 164 (4) (b) of the Act. For the reasons set forth in the reasons for judgment in V No. 4 of 1977 it is manifest that the rules in question were in contravention of the provisions of s. 140 (1) on 4th March, 1977, to the same extent as they were at the date of the rule nisi in proceedings V No. 4 of 1977 and at the date of judgment therein. Accordingly the rejection of the nomination of Mr. Webster in each of the elections was an irregularity in a step in each election and relief should be granted accordingly. (at p421)
In my view that relief should provide inter alia for the calling of fresh nominations and consequential directions. It should perhaps be mentioned that I do not regard s. 141 (5) as affecting the operation of Pt IX of the Act.

V No. 12 of 1977. (at p421)
In this proceeding Frederick James Maddern alleges that in a step in the procedures so far taken in the conduct of an election for the offices of delegate to national council and metropolitan divisional delegate to the Victorian branch conference of the association for 1977 an irregularity has occurred. (at p421)
Nominations for this election closed on 4th March, 1977. On 7th March, 1977, the returning officer informed Mr. Maddern that his nomination had been rejected on the ground that he had not been a financial member of the union for the two years immediately preceding the close of nominations. By letter of 11th March the returning officer explained that the records of the union showed that Mr. Maddern had been unfinancial for a considerable time and that there was no record of any fees being paid after 30th June, 1975, until 18th February, 1977, when $19.50 was paid. Since then he has paid contributions irregularly. Frequently he was in arrears with his payments but by 4th March, 1977, he had paid all arrears and was a financial member. The last payment was made on 3rd March, 1977, and was for a sum of $67.40. (at p422)
It would appear that the returning officer did not have information of this last payment or of one other payment made on 3rd March, 1977, but the fact is that by his payments on that day all sums for arrears and amounts then due had been paid. (at p422)
It was true that Mr. Maddern had not on 4th March, 1977, been a financial member continuously during the two years preceding 4th March, 1977. However, in view of the reasons for the decision in the proceedings V No. 4 of 1977 pronounced on this day and the invalidity on 4th March, 1977, of branch rr. 5 (c) (ii) and 36 (b) to the extent indicated in the reasons for judgment in proceedings V No. 10 of 1977, Mr. Maddern was on 4th March, 1977, duly qualified to nominate as a candidate in the election for divisional delegate to branch conference and delegate to national council. (at p422)
Accordingly, an irregularity did occur in a step in the conduct of the election and appropriate relief should be granted. (at p422)

JUDGE2

J. B. SWEENEY J. I agree with the orders of the court in these matters and agree generally with the reasons for judgment published by my brothers Smithers and Evatt. (at p422)

JUDGE3

EVATT J. These matters were heard together and it was agreed that the facts and circumstances disclosed during the hearing were to be considered by the court on any relevant issue in each case. (at p422)

I have had the opportunity of reading the reasons for judgment of Smithers J. in all matters.

As to matter No. V4 of 1977. (at p422)
This is an application by Elizabeth Leveridge, a member of the Shop Distributive and Allied Employees' Association (the federation), brought under s. 140 of the Conciliation and Arbitration Act 1904 (the Act) wherein she claims that rr. 5 (c) (ii) and 36 (b) of the rules of the Victorian branch of the federation contravene s. 140 (1) (c) in that such rules impose on members conditions, obligations or restrictions which having regard to the objects of the Act and the purposes of the registration of organizations under the Act are oppressive, unreasonable or unjust. (at p422)
The relevant rules and the facts relied on by the claimant are fully set out in the judgment of Smithers J. The material facts in my opinion are that at the beginning of 1977 the branch consisted of some 36,000 members, 12,000 of whom had been members for a period of less than one year, a further 12,000 of whom had been members for a period in excess of one year but less than two years, whilst the remaining 12,000 had been members for a period of three years or more. (at p423)
Further, from 1975 onwards the membership of the branch was such that one-third of the membership consisted of part-time casuals most of whom worked less than ten hours per week whilst another one-third of the membership worked as part-time employees for more than ten hours but less than thirty-nine hours per week with the remaining one-third of the membership working as full-time employees. (at p423)
It was conceded by the claimant that a requirement in the rules of any organization that a member be financial at the time of the closing of nomination for election to any office or position in the organization would not of itself be contrary to s. 140 (1). (at p423)
But the requirements in the rules under challenge that a person is required to be a financial member of the federation for not less than two years immediately preceding the close of nominations for the offices of divisional delegate to branch conference and of branch delegate to national council has the effect in the circumstances of the membership of the Victorian branch that sixty-six per cent of the membership are prevented from ever holding office and excludes many of the remaining one-third of the membership from standing for such offices for varying periods between two years and four years and three months. (at p423)
I am of the opinion that to exclude such a large proportion of the membership from nominating for such offices clearly contravenes the objects of the Act and in particular the object in s. 2 (f) which reads: "2. The chief objects of this Act are - . . . (f) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization". This object was inserted into the Act in November 1973. (at p423)
The said rules do, in my opinion, impose oppressive and unreasonable conditions or restrictions upon members wishing to so nominate. But this is not to say that rules making it a condition of nominating for all offices in any organization that a period of continual financial membership of up to two years immediately preceding the date of nomination would be considered as being contrary to s. 140 (1). The rules in each case would have to be considered in the light of the circumstances prevailing within a given organization at the time under consideration. (at p423)
I agree with the reasons of Smithers J. that the court has power under s. 140 (5) to strike down the part of r. 36 (b) which requires a member to be "a financial member of the organization for two years immediately preceding the close of nominations" so far as it relates to the position of division delegate to branch conference and of branch delegate to national council referred to in r. 36 (a) (i) and 36 (a) (iii) respectively. (at p423)
Accordingly orders should be made under s. 140 declaring that that part of branch r. 5 (c) (ii) which is contained in the expression "for not less than two years" and that part of branch r. 336 (b) which is contained in the expression "for two years" (in so far as it relates to the positions referred to in r. 36 (a) (i) and 36 (a) (iii)) contravene s. 140 (1).

As to matter No. V5 of 1977. (at p424)
I agree with the reasons for judgment of Smithers J. herein and that orders should be made accordingly.

As to matter No. V8 of 1977. (at p424)
This is an application brought pursuant to s. 140 of the Act by Nigel Arthur Webster, Frederick James Maddern and Mano Alexakis as members of the federation claiming that rr. 5 (c) (ii) and 36 (b) of the rules of the Victorian branch of the federation contravene s. 140 (1). Further, the applicants sought orders pursuant to s. 141 of the Act that the returning officer then conducting elections under s. 170 of the Act perform and observe the rules of the branch by accepting the applicants' nominations for elections to certain offices within the branch. (at p424)
At the outset of the hearing of these applications it was conceded by the claimants that s. 141 (5) and (9) prohibited the making by the court of the orders asked for in the application brought under s. 141. (at p424)
During the hearing the application of Mano Alexakis was withdrawn and he thereafter sought no order of the court. (at p424)
With regard to the application brought pursuant to s. 140, the applicants herein are entitled to rely upon the order made earlier this day by the court in matter No. V4 of 1977 wherein the court declared that the rules in question contravene s. 140 (1).

As to matter No. V9 of 1977. (at p424)
This is an application by Terence Vincent Moloney brought under Pt IX of the Act for an inquiry by the court into an election held pursuant to s. 170 to fill certain offices in the Victorian branch of the federation. (at p424)
I agree with the reasons for judgment of Smithers J. herein.

As to matters Nos. V10 and V12 of 1977. (at p424)
These are applications by Nigel Arthur Webster and Frederick James Maddern respectively brought under Pt IX of the Act for an inquiry by the court into the said elections. (at p424)
The facts and circumstances of the applications made by the respective applicants under s. 159 and referred to the court pursuant to that section are fully set out in the judgment of Smithers J. Being satisfied that there were reasonable grounds for the applications the court proceeded with the hearing of the inquiry and made an interim order under s. 163 (1) (a) that the returning officer take no further steps in the conduct of the election to fill the offices in question until further order of the court. (at p425)
During the hearing by a court of an inquiry brought under Pt IX of the Act an applicant may contend, if it be relevant, that a rule of an organization contravened s. 140 (1) of the Act at a particular date. If, prior to the hearing of such inquiry, a court has declared pursuant to s. 140 (5) of the Act that the particular rule contravened s. 140 (1) and the date of the making of such declaration is earlier than the date relied upon by the applicant in his application under s. 159, then he relies upon such declaration and the court conducting the inquiry is bound by it. But where such declaration was made on a date later than the date relied on by such applicant then the court conducting the inquiry has to determine the issue after considering the facts, conditions and circumstances as proved as at that earlier date in the same way as it would where there has been no declaration under s. 140 (5) relative to the particular rule (The Queen v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (Australian Section) (Shearer's case) per McTiernan J. (1960) 103 CLR, at pp 372-373 , Fullagar J. (1960) 103 CLR, at pp 378-379 , Kitto J., with whose reasons Dixon C.J. agreed (1960) 103 CLR, at pp 380-381, 384-385 , Menzies J. with whose reasons Taylor J. agreed (1960) 103 CLR, at pp 387-388 , and Windeyer J. (1960) 103 CLR, at p 389 ). (at p425)
Being of the opinion that the part of r. 5 (c) (ii) and the part of r. 36 (b) (in so far as they relate to the positions of division delegate to branch conference and branch delegates to national council referred to in r. 36 (a) (i) and 36 (a) (iii) referred to in my judgment in V 4 of 1977 contravene s. 140 (1) of the Act, and being satisfied on the evidence that such contraventions occurred on and immediately before 4th March, 1977, the date on which nominations for election to the said positions closed, I am of the opinion that irregularities within the meaning of s. 165 of the Act occurred in a step in the subject election. Such irregularities were the rejection by the returning officer of the applicants' nominations for election to the said positions on the basis that the applicants had not at the date of the closing of nominations been financial members of the federation for a period of two years immediately preceding that date as apparently then required by branch rr. 5 (c) (ii), 36 (a) (i) and 36 (a) (iii). (at p425)
In my opinion the circumstances are such that the court should order that a new election, including the calling of fresh nominations for the positions referred to, be held and that consequential directions be made (at p426)

ORDER

Declarations and orders accordingly.

[1977] FCA 55

26 AUGUST 1977