Lynch, Alice Rose v Howard, W.J.

[1979] FCA 135

CATCHWORDS

Industrial law - whether candidate validly elected to

membership - interpretation of rules - meaning of " ~ l l

persons present and votlng" - rule requlrlng names of

candidates for membership to be submitted to Annual

General Meetlng for election to membership - whether such rule is oppressive, unreasonable or unjust -

Conciliation and Arbitration Act, s.2(e) and (f), s.140,

8.141.

Re: LYNCH v. HOWARD

N.S.W. No. 29 of 1979

J.B. Sweeney J.

Sydney

13th December, 1979

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION

NEW SOUTH WALES DISTRICT REGISTRY

IN THE MATTER of the Conciliation and

Arbitration Act, 1904

AND IN THE MATTER of an application under Section 140 thereof

BETWEEN ALICE ROSE LYNCH

Claimant

AND W.J. HOWARD, A. BARTON, J. MARSHALL,

J. OSBORNE, K. MARCH, N. MCGREGOR,

E. JOHNSON, D. WATKINS, F. LAURIE,

D. WITTINGSLOW, W. NOCK, W. SPICER,

L.J. OSBORNE, A. FOSTER, F. FOSTER,

R. SMALL, E. TREVORS, B. RENET,

A. BOWDEN, L. J. SHORT AND

THE SHOWMEN'S GUILD OFXSTRALASIA

Respondents

(N.S.W. No. 29 of 1979)

O R D E R

JUDGE MAKING ORDER:	J.B. SWEENEY J.
DATE OF ORDER:	13th December, 1979
WHERE MADE:	Sydney

THE COURT ORDERS THAT:

The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA )

INDUSTRIAL DIVISION (N.S.W. NO. 29 OF 1979)

NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the Concillatlon and

Arbitration Act, 1904

AND IN THE MATTER of Applications under

Sectlons 140 and 141 thereof

BETWEEN ALICE ROSE LYNCH

Claimant

AND

Respondents

13th December, 1979 J. B. SWEENEY J.

REASONS FOR JUDGMENT

Thls 1s an application by Mrs. Allce Rose Lynch firstly for

an order pursuant to s.140 of the Conciliation and Arbitration

Act, 1904 ("the Act") declaring that part of r.4 of the rules of

The Showmen's Gulld of ~ustralasia ("the Guild") contravenes

s.l40(l)(c) in that it lmposes upon applicants for membership

conditions, obligations or restrictions which having regard to the

objects of the ~ c t and the purposes of the registration of

organizations under the Act are oppressive, unreasonable and

unjust and secondly for an order pursuant to s.141 of the Act

that the personal respondents who are the members of the

committee of management of the Gulld perform and observe the

rules by treatlng one James Thomas Lynch the husband of the applicant as a member of the Guild. The Showmen's ~uild of Australasia ("the Guild") is an organization of employers

registered pursuant to the Conciliation and Arbitration ~ c t ,

1904.

The dlspute arlses under r.4 of the rules of the Guild

which is in the following terms.

4.	(a)	Any person who is over the age of 18 years may become a member of the Guild provlded that he is a full-time showman and has owned and operated hls own show equipment for a period of 3 years prlor to his application for membership.
(b)	Any person may become a member of the
~uild who is the issue of a member of the
Guild or the widow of a deceased member of the Guild and who is over the age of 18 years at the date of application for
membership.

(C) All applications for membership shall

be in the form requlred by the Committee

glving the quallflcations of the proposed

member in detall, signed by the applicant

and by the proposer and seconder who shall

be members of the Guild of not less than

three years' standing, must be lodged or

forwarded by post to the Secretary of the

~uild at the Registered Office for the

time being of the Gulld, accompanied by

the full amount of the prescribed entrance

fees as hereinafter provided except in

the circumstances set out in Rule 5(f)

hereof. The Secretary shall cause such

nominations to be posted on the Notlce

Board at the Registered Office of the ~uild for a perlod of one month prior to the Annual General Meetlng and shall

submlt the names to the next Annual A person proposed for membership must receive a majority of the votes of all members present and votlng at the meetlng before being accepted as a member of the Guild. his votlng shall be by secret ballot.

(d) On election by the ~uild the Secretary

shall notify the applicant of his

acceptance as a member of the Guild.

Before considering the Issues arising it is necessary to note

that the Guild consists of something over 400 members who are

persons engaged at shows held at varlous places in the conunon-

wealth. At these shows each operates a plece of equipment

termed a "tool" being a piece of equipment of the klnd generally

limited to use by showmen. The shows appear to be held according

to a roster and are so arranged as to allow showmen to travel

from point to point to work during the duration of the show and

then move on to the town or area where the next show is held.

shows are generally of a short duration, the longest appearing

to be well under three weeks. It further appears that in the

course of thelr business showmen grow to know each other and

to have frequent dealings with each other.

The Guild represents employers in the industry in industrial

matters. This aspect of the Gulld's activities seems of little relevance to the husband of the applicant who sought membership because on the evidence I thlnk he had no employees during the

relevant period and there was nothlng in the evldence which

could lead to a bellef that he was likely to have employees in

the future.

A further aspect of the Guild's activities is in dealing

with societies conducting shows at varlous places. In a number

of such shows an area is set apart for the erection of stalls

and the conduct of sideshows and use of thls area appears to be

llmited to ~uild members. This is not so in the case of all

shows and even in those where such an arrangement has been come

to, other showmen are allowed to work their particular pleces

of equipment in areas outside the Guild area. The plece of

equipment used by Mr. Lynch is known as a High Strlker and

consists of a device whereby an object is struck with a mallet

and the weight of the blow then recorded on a dlal. The

evldence suggests that frequently the most suitable place for

such a plece of equipment is close to a bar and in view of the

nature of the piece of equipment, the fact that it is usually

used by males and that its object is the recording of the strength

of blows, there seems good reason for accepting that an area close

to the bar would be a most sultable area.

Complaint was made that Mr. Lynch's llvellhood was being

affected by the £allure to admit him to membershlp but the facts disclose that he has conducted hls business of a showman without membership of the Gulld for a number of years now and there was

no evidence whlch I find acceptable that his livelihood is in any

way at stake if he cannot become a member of the Gulld.

Rule 4 firstly sets out in paragraphs (a) and (b) two classes

of people entltled to membershlp of the Guild and then in

paragraphs (c) and (d) provides machinery for the acceptance of

a person as a member and for his notification. It requires

applications for membershlp to be dealt wlth at an annual general

meeting and the evidence is that annual general meetlngs are

held at a time which coincides with the holding of one of the

major shows. The last annual general meeting, for example, was

held during the period the Royal Agricultural Society Show was

held in Sydney. This timing of meetlngs ensures a considerable

attendance and on the occasion of the last meeting over elghty

members or approximately 20% of the membership was present.

The first issue which arises is whether under the procedure

which was followed at the meeting Mr. Lynch was in fact admitted

to membership.

The history shows that the rules were changed to their

present form in 1977. Among the changes then made was the

change to a secret ballot. Under the procedure adopted in 1978

and repeated in 1979, applicants for membership who complied with

either r.4(a) or (b), completed their forms and paid the amounts

prescribed in r.4(c) were considered at the annual general

meeting. A form was prepared and used at the meeting. his

form had the names of the candidates on it each in a separate

space and in each space there appeared the words "Yes" and "NO".

The paper contained as well an instruction to cross out the word

not applicable. votes having been cast the papers were placed

in a sealed box by the voter or the Returning Officer. A count

was made and it appeared there were 86 ballot papers returned

and one extra ballot paper which had been issued in place of one

destroyed. That meant 86 persons had received ballot papers

for the purpose of voting. A number of ballot papers had no

vote recorded on them at all and other ballot papers had

some votes recorded in favour and some against in the case of

some candidates, but no votes in others. In no case however did the whole 86 cast elther a "Yes" or a "No" vote for a candidate. The first candldate on the llst was a Mr. chant. Forty-two "Yes"

votes were recorded, five "No" votes and consequently thirty-nlne

papers dld not record a vote in respect of hlm. In the case of

Mr. Lynch, fourteen "Yes" votes were recorded, four "No" votes and the remainder, namely 68, did not record any vote in hls

case. The ~eturning Officer declared those who had received more

than half plus one "Yes" votes of the 86 votes elected and those who had received fewer than one-half plus one "Yes" votes of the

86 votes were declared not to have been elected.

The issue now ralsed is the meanlng of the sentence "a person proposed for membership must receive a majority of the votes of

all members present and voting at the meeting". The submission

II

of the applicant 1s that all that is required is a majorlty of

the votes in the case of each candidate treatlng each candldate

as being involved in a separate election. So to do seems to me

to pay too little regard to the actual terms of the rules and

particularly to the words "all members present and voting".

Indeed if the applicant's submlsslon is to be accepted those

words are purely redundant. In my vlew the hlstory of the rule

supports this view. The rule originally provided in r.5 as

follows	:
Candidates applylng to the Guild for membership

must be proposed and seconded on the application

form of the Guild. Such proposer and seconder must

be financial members of the said Gulld and shall be

responsible for the sald applicant's character and

integrity. The applications shall be placed before

a meeting of the members of the Management Committee

and if a motion for admission be carried the candidates

shall be admitted to membershlp.

That was replaced in 1946 by a rule which provided:

The Guild shall consist of an unllmlted number of

employers over the age of twenty one years who are reputable and respectable followers of the calllng of a Showman. Members shall be elected by the Guild

at the Annual or Special General Meetlngs of the Guild

only.

The next change was made in 1955. It follows largely the

present procedure in r.4 but then provided a person proposed

for membershlp must recelve a two-thirds majority of the members

present at the meeting and voting before belng elected as a

member of the Guild. No provision was made for a secret ballot.

The next alteration was made in 1977 and the latter part of

the rule was then changed to provide that a person proposed for

membership must receive a majority of the votes of:

all members present and votlng at the meeting before

being accepted as a member of the Guild.	This voting
shall be by secret ballot.

The change then has been from electlon by the committee of

management firstly to election at annual and speclal general

meetings only then to a change for a requirement of a two-thlrds

malority and flnally to the present form requiring a majority

of the votes of all members present and voting at the meetlng

with an additional provision that the voting shall be by secret

ballot. In other rules, provision is made for various matters to be dealt with by simple majority. Examples are r.l4(c) and

r.17. ~igniflcance must also in my vlew be attached to the

insertion of the word "all" and I am of the opin~on that the

method I have described above adopted in 1978 without protest

and followed in 1979 again without protest was the appropriate

method under the rules. It gives force and effect to the words

"all members" and to the words "present and voting" and thls

is further emphasised by the change in language shown in a

comparison of this rule with the other rules.

rt was further argued that those ballot papers whlch had

been placed in the box by either a member or by the returning

officer at the request of a member and which did not show in

each appropriate case a vote for or against one of the applicants

for membership or which, as was the case with some, had no vote

recorded at all, were not votes (of all persons present and

votlng at the meeting). Consequently it was argued since

Mr. Lynch had received 14 "Yes" votes, 4 "No" votes and the

balance had not cast a vote, he had been elected. However I

do not think the rule is to be so interpreted. In a case

dealing with voting under the Temperance (Scotland) Act, the Scottish Court of Session said in considering the meaning of the expression "Votes recorded":

" ~ t seems plain that if the votes which are to be

subjected to a re-count and scrutiny are the "votes

recorded", then the "votes recorded" must include

all the ballot papers which were put into the

ballot box by the voters in the exercise of their

right or duty to vote, and cannot exclude those which

the returning officer, at the flrst count, held to

be Insufficiently or improperly marked, or to be not

marked at all. I think a voter records hls vote when

he puts hls ballot paper into the ballot box: and I

do not thlnk it is materlal that, owing to carelessness,

or ignorance, or inexperience, he has failed so to mark

his ballot paper as to make the vote he thus "records"

an effective exposition of his opinions. Moreoever,

havlng regard to the requirement of certain proportions

and majorities of votes contained in subsection(3)

of section 2, I have difficulty in construing that

subsection on any other basis than that those propor-

tions or majorities relate to the total number of

persons who come and exerclse their prlvlleges at the

poll, whether those privileges have been exercised

effectively or ineffectively."

Latham v. Glasgow Corporation 1921 S.C. 694 at 713.

In my view then the applicant's husband was not elected

a member of the Guild at the last annual general meeting and

is not entitled to an order requiring that he be treated as

having been elected.

I turn now to the second order sought. It is claimed that

c.4(c) imposes upon applicants for membership conditions

obligations or restrictions which havlng regard to the oblects

of this ~ c t and the purposes of registration of organizations

under this Act are oppressive, unreasonable or unjust. ~t is

to be noted that under Reg. 115 of the Conciliation and

Arbltratlon Regulations, rules must provide the times when and

the terms on whlch persons shall become members. The two

relevant objects are those set out in s.2(e) and (f) of the

Act. I think that to afford members an opportunity of deciding

those with whom they wish to associate in an organization

encourages the organization of representative bodies and their

registration rather than the reverse and the same may be sald

of object (f) to encourage the democratic control of or-ganlzatlons

and the full partlcipatlon by members of such an organization in

the affairs of the organization. As I have already said, the

annual general meeting is held at a tlme most likely to secure

a substantial attendance and indeed at this annual general

meeting over 86 persons were present at the time when the voting

on new members took place. It cannot in my vlew be said that

using these objects as the criteria the rule is either oppressive,

unreasonable or unjust. It is moreover to be noted that the same

criteria applied to a consideration of the rules of an organization

of employees and it is qulte clear from the insertion of s.144

that it is contemplated by the legislature that there wlll be

persons employed within the conditions of ellglbllity rules not of

general bad character who are under rules not admitted to

membership. ~t is for thls reason, among others, that the

statutory right given under s.144 was inserted in the ~ c t .

If such a rule can exist in the case of an employees' organlza-

tion then it seems to me that applying like criteria such a responsible bodies act in such a manner that condltlons, obligations or restrictions which having regard to the objects of the Act and the purposes of registration are oppressive, unreasonable or unjust

rule may exist in an employerst organization without offending

against s.140. I think it not in any sense oppressrve, unreason-

able or unjust that members of an organization should be entitled

to choose those with whom they wish to associate in an organization.

then that may afford a ground for actlon under s.143. The

distinction clearly drawn by the statute between a rule and its

possible administration seems to me to lend support to the vlews

I have expressed.

I think no case has been made out for an order declaring

that r.4(c) contravenes s.s.(l) of s.140. The appllcatlon

then both pursuant to s.140 and s.141 is dismissed.

I ce: t l f y t,?,:it thls and the +eter\

prc?cmlL~~< p.1,-cs &re a t.l-ue copy of the

Rc.tt.(,lis ."o: . iungcent h e r ~ l n o f 111s Xonour

!dr j u s t i c e 5.. &. &*Jc&&.-I

/ m Jb

, &sr>cia te

Dated: 1974