Luckman, J. v Australian Postal and Telecommunications Union

[1978] FCA 87

r I'

2-7

IN THE FEDERAL COURT

OF AUSTRALIA )

f-

)

)

NO. 19 Of 1978

(K'/

1

INDUSTRIAL DIVISION

1

I - - - NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the Conclliation and

Arbitration Act, 1904

AND IN THE MATTER Of Sectlon 140 Of the

sald Act

BETWEEN JAMES LUCKMAN

claimant

-	AND	AUSTRALIAN POSTAL AND
TELECOMMUNICATIONS UNION

Respondent

10 October, 1970 J.B. SWEENEY J.

REASONS FOR JUDGMENT

This is an application by JameS Luckman against the Australian

Postal and Telecomunications union ("the union") seeking

orders declaring that certain rules of the union contravene

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s.140 of the Conciliation and Arbitration Act, 1904 and in

the alternative that the rules of the union contravene

s . s . ( l ) of that section in a specified respect.

The union is an organisation registered under the commonwealth

Conciliation and Arbitration Act, 1904. Its membership comprises

employees of the Australian Postal Commission and the Australian

Telecommunications Commission throughout Australia. There are

six branches of the unlon. I set out hereunder the names of

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the branches, their approximate membershlp and the percentage

such membership bears to the total membershlp. It will be

noted that the branches in New south Wales and Victoria are

by far the largest branches and that they comprise between

them nearly 65% of the members.

Branch _. NOS. %

New South Wales 17,350 37.87

victoria 12,400 27.06

Queensland	7,150 15.60
South Australia	4,500 9.82
western Australia	3,250 7.09
Tasmania	1,160 2.53

Total 45,810

The rules of the union provide for its government on the

federal level by a Conference and an Executive. Conference meets at least annually and the Federal Executive at least

three times a year. The Annual Conference conslsts of two

delegates from each State together with the officers, namely

the General President, two General Vice-Presldents, the

General Secretary/Treasurer and the two Assistant General

Secretaries. These officers are entitled only to move or

second or speak to a proposal but are not entitled to vote

on any matter. A Special Conference is comprised in the same

manner except that one delegate attends from each State

instead of two. The Federal Executive consists of one dele-

gate from each branch and the six officers previously referred

to.

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provisions to which reference will be made later also exist

for the taking of plebiscites.

In addition to the federal bodies, provision is made for officers and committees within each branch.

The evidence put before me showed that the membership in each branch is scattered. In each capital city the biggest single

grouping of membership appears to be at a mail exchange and

other groupings are much smaller. From the very nature of

the employers concerned, it is clear that the membership is

scattered throughout the Commonwealth and throughout each State.

The first attack is made on rules 6 and 6A. These are the rules

providing for the Annual and Special conference respectively,

and the clalm is that the fact that each branch, irrespective

of the number of its members, is entitled only to the same

number of delegates, causes the rule to offend against

s.l40(l)(a) and s.l40(l)(c). In particular, reliance is placed

on the requirement in regulation 115(l)(d) relating to the

control of an organisation by its members and to object 2(f)

inserted in the Act in 1973. This object is expressed as being

"to encourage the democratlc control of organisations registered

under the Act and the full participation by members of such an

organisation in the affairs of the organisation".

It is quite clear that it 1 s primarily for the members of an

organisation to decide on the form of its government and its

rules. This however is sub~ect to certaln qulte preclse and

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specific provisions required by the statute. These have varied

from time to time, but unfortunately few unions appear to have

undertaken the task of keeping their rules up to date. In

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this present case it appears that many of the rules to which

exception is now taken were rules of the union prior to the

election to office of the present Secretary. Cvhile in one

sense that may absolve him from blame, it emphasises the need

for all unions periodically to examine their rules in the

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light of the statutory requirements. At one time, one fre-

quently found wlthin organisations rules revision committees

of one form or another, to whom this task was assigned, and

it is in many ways a pity that this has been dlscontinued.

My task however is to deal with the rules as I find them.

In considering rule 6 it is quite plain that the two biggest

branches, comprising 65% of the members, may have their will

thwarted by the representatives of the smaller branches, rep-

resenting some 35% of members. This follows because each

branch at conferences has the same number of votes. A rule

in such form appears to me not to afford a proper measure of

control of committees of the union to the members of the union.

It quite clearly does not make for democratlc control of the

union and is to my mind one which imposes conditions which

are oppressive and unjust.

Decisions by the court and its predecessor, the Australian

Industrial Court over the years, have made plain the vice in

such a rule. I adopt with respect the observations of Spicer C.J.

in McKenzie v. Administrative and clerical Officers AsSOClatlOn.

Commonwealth Public Service ( 5 F.L.R. 342 at 348). Dealing

there wlth a rule which provided for equal representation by

branches at a conference and the claim that the rules failed

to provide for proper control by members and imposed upon mem-

bers conditions and restrictions which having regard to the

objects of the Act and the purposes of the registration of

organisations, were oppresslve, unreasonable and unjust, his

Honour said:

"One can illustrate the force of this contention by

assuming that the members of the two larger branches,

Victoria and New south Wales, seek to give effect to

some particular policy throught by them to be in the

Interests of the organisation. The process they fol-

low is to submit such a proposal to conference under

r.25. At the conference they each have two effect-

ive votes, the total voting strength of conference

being fourteen. Unless therefore they succeed in

obtalning support for the proposal from two other

branches It fails. For this the only remedy provided

is resort to the plebisclte for which r.79 makes pro-

vision. Neither conference nor the executive council

is bound to secure the opinion of members on the matter

in question unless it 1s requested so to do by at least

four branch councils. In the case assumed it may well

be that the branch councils of the four branches which

voted for the proposal would request a plebisclte, but

if support in conference for the proposal fell short

of that represented by the delegates for four branches,

there is no means at all whereby the branch councils

of either Victoria or New South Wales can have the pro-

posal submitted to members and the will of the majority

of members ascertained. Furthermore even if a plebis-

cite were held and the proposal was carried by a large

majorlty of members, it would not become effective

unless a majority in four of the seven branches voted

in favour of it.

These considerations lead me to the conclusion that the

rules are capable of operation so as to prevent the will

of the majority of members prevailing. To that extent

they fail to provide for control of conference and the

executive council by the members, and impose upon the

members conditions which are oppressive, unreasonable

and unjust. In a constltution of this kind it is not

improper or inappropriate to have provisions which ensure

some stabllity and enable those charged with its man-

agement and administration to promote its policy wlthout

regard to every fluctuating change in the views of

members. On the other hand a constitution which is so

framed that the will of the majority may under it never

prevail seems to me to offend against the Act and the

regulations. 'I

This passage was followed by Smithers J. in Clark v. Maynes

(23 December, 1976 (unreported) at p.37). I am quite satis-

fied then that rules 6 and 6A are objectionable.

The next attack is made on rule 9. This rule deals with the

Federal Executive which is an important body within the union.

It meets at least three times during a year and has wide powers

under the rules. Rule 9(a) sets out the composition to which

I have already referred and rule 9(d) provides the Federal

Executive shall be responsible for the full and proper carrying

out of the directions of the Conference and plebiscite decislons ' .

of the membership. In the event of "any matter arising outside

a matter covered by these rules the resolutions of the conference '

and/or plebiscite decisions of the membership", the Federal

Executive shall act as directed by a majority of branches.

I find it impossible to give a meaning to the phrase "a matter

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arising outside of a matter covered by these rules". Mr.

Handley, Q.C. for the claimant, submitted that they should be

treated as surplusage, while Mr. Munro for the union, while

disputing this, was unable to Illustrate the type of matter

which might so arise. On further consideration of the matter,

I am unable to conceive such a matter. Full and completely

wlde powers have been given to the Conference and may be the

subject of plebiscites and the Federal Executive and so are

covered by these rules. In the circumstances I think I can

only treat the particular words as surplusage. The position

then is that in matters outside the resolutlons of the Confer-

ence or plebiscite decisions the Executive is to act as directed

by a majority of branches and for the reasons set out in dealing

with rules 6 and 6A, it too is ob-Jectionable.

Rule 21 was then attacked. It is the plebiscite provision and provldes that Conference or the Federal Executive, when either

of them deems fit or when so directed, shall take the opinion

of members upon any question or when the question concerns any

particular group, the opinion of members of that group, by

submitting the question to a plebiscite. The ob-Jection to the

rule is that Conference and Federal Executive, being weighted against the larger branches as already indicated, the provision

for a plebiscite necessarily means that a combination of the

two larger branches and hence the majority of members of the

union are unable themselves to require a plebiscite. It is

clear that a plebiscite is a clumsy and expensive way of deter-

mining a question, but I am of opinion that if a clear majority

of members so decide, it should be within their power to have

a plebiscite. In the case of an organisation wlth rules cov-

ering its governing bodles in the manner of this union, thls

provision for a plebiscite cannot add to the control by the

members of the committees and it is in my view also in contra-

vention of s.140(1).

Rule 22. This rule provides that In the event of any branch

or the instructlons of the Federal Executive, the Federal	falling to comply with these rules, the resolutions of conference take over and manage the affairs of the Branch and/or supersede all or any of the officers and members of the State Executlve and appoint others in their stead to manage the affairs of such
branch unt3-l otherwise decided by the Federal Executive or . I
Conference. Any branch which fails to pay to head office any
amount due under rule 15 within one month after the close of

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the relevant quarterly period shall be liable to be dealt with

under this rule.

Rules in such a form allow an elected branch committee and

officers to be superseded for an indefinite period for what

may be fairly technical reasons. The Executive may act in the

event of a branch failing to comply with the rules, including

branch rules, and rules of llttle importance or in the event

of the branch failing to comply with the resolutions of

Conference or the instructions of the Federal Executive whether

these are on matters of substance or matters of little consepence.	I
The failure to comply may be a mere mistake or accident. It	i

need not be a refusal. While it may well be that an Executlve

is required to act honestly and to secure what in its view is

the best interests of the union, that is not inconsistent with

the Executive in fact actlng in a manner which is oppressive

or technical although bona fide believed to be in the best

interests of the unlon. Moreover, the supersession of the

branch officers and executive and the appointment of others in

their stead is for an indefinite period until otherwise decided

by the Federal Executive or Conference. It is true that no

*	action is to be taken under this rule without the sanction of a majority of branches but that seems to me to add little.
The predecessors of this court have long held that a rule which
allowed officers and members of a State executive to be super-
seded in this way was objectionable (Thornton v. McKay 56 C.A.R. 98: '
wright v. Australian Workers Union 7 F.L.R. 148). I am quite satisfied that this rule offends agalnst the section.
Rule 31(g). This rule provides that any person holding a full-
time office in the union shall be entitled to speak, move motlons and vote on any business before the State executlve or general
meeting. A person holding a full-time office in the union is
certainly the General Secretary/Treasurer and may, although I !
find it unnecessary to decide It, be persons holding similar a _

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offices in a branch. A rule to like effect was dealt with by

this Court in Allen v. Townsend 16 A.L.R. 301 at 325-6 per

Smithers J. and at 337-8 per Evatt and Northrop JJ. I adopt 1 %

with respect what was said in that case. Mr. MunrO m the

light of that recent decision offered no strong opposition to

the application. Such a rule in	my opinion is contrary to the
provisions of the Act.

Rule 31(h). This rule provides that no officer or member shall

seek outside assistance in the conduct of the busmess of the

union at general or State executive meetings unless authorised

so to do by resolutlon of the meeting. This rule in my view

offends against s.l4O(l)(c). I see no reason why a member

should not seek outside assistance such as legal advice, advice

from accountants or the like or from the Registry of the

Australian Conciliation and Arbitration Commission. Indeed view are harsh and oppressive.

it is clear from experience in this jurisdiction that they

are frequent methods used in resolving problems in unions.

It will be seen from what I have said that I regard each of the

rules to which I have referred as not In conformity with the requlrements of s.140, in some cases because they contain pro-

visions contrary to a provislon of the Act or regulatlons, in

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other cases because they fail to contain provislons specified

as required and in other cases still because they impose con-

ditions, obligations or restrlctions which are oppresslve,

unreasonable or unjust.

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In ordinary circumstances I would necessarily then proceed to

consider whether an order was proper to be made under s.s.(5)

or S. S. (7). However, the claimant has made clear that his

desire is to have the rules brought into conformlty with the

Act and to avold any action which may cause detriment to the

union-by invalidating proceedmgs of any of the governlng bodies.

I propose therefore to adjourn these proceedings for a perlod

to allow the union an opportunlty of amendlng Its rules. I will

hear submissions on the question of the length of any proper

adjournment and whether any	terms or conditions should be
imposed.

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