Moffitt, J.H. v The Vehcle Builders Employees Federation of Australia

[1985] FCA 392

c

- CATCHWORDS

Inclustri-al law - s . 1 4 O ( l ) ( c ) of the Lo.kcili?-tifir1 a n d

Arbitrat ion Act 1904 - whether union rules r e s t r i c t i n g

u l l g i b i l i t y f o r nomination €or pos l t i on of Federal Secre ta ry

contravene s.140(1) ( c ) - eligibility dependant upon dec i s ion

of branch meeting as to reasonableness of ar) excuse f o r non

at tendance thefeat .

-- Conciliation and Arbitration Act 1904 s.l4O(l) ( c )

___	JOSEPH HENRS MOF'FITT v. THE VEHICLE XJILDERS EMPLOYmX
- FEIIERATION OF AUSTRALIA --

l 1

!	No. 6 of 1985
I
15 August 1985

I N THE FEDERAL COiJRT OF AUSTRAT,IA ) )

FJL'fiJ SOUTH 5lJALFS DISTRICT RECISTRY ) NO. 6 OF 1985

)

TNDUSTRIAL D I V I S I O N

.- On Appeal from a Slnqle Judqe

of the Federal Court og

A u s t r a .

(Appel lan t )

(Respondent)

-	Judqes Makinq Order:	Smlthers, Keely and Wllcor: JJ.
--	Date of Order:	15 Auqust 1985
Where M&:	Sydney.

1. The Court o rders tha t he appea l be allowed.

2 .

sub-Branch mcctingr; €or t w o ycarr; imncdlntcly

prior t o the d a t e of t he call inrj of nok:lnztlons.

that sub-rule contravenes the provis ions of

s.14O(l)(c) of t h e A c t ; ant!

( h ) t h a t suh-r.(d)(iv) contravenes the provislons of

s.14O(l)(c) of t h e Act.

I

Cn Appeal from a Sinqle Judqc

of the Federal a)urt of

Australia

Detween:

JOSEPS-I HEWRY

MOFFITT

(Appellant

(Respondent)

__	Coram: Smithers, Keely and	W ~ l c o x	JJ.
m: 15 August 1985

Smithprs, XeeJv andKlcox J.: "his is an appeal from the

discharge o € a rule nisl that the respondent show cause why

I

sub-rule ((i)(iii) of r .6 of the rules of the respondent 1i1 so

I fzr n s it provi&?.s khat tn Se el igi51c Cor nom;r.;;.im fo:

election a:; Feeera1 Secret~ry of rh.2 organizztiun ,I m m h r

I

must at the date of nominstion have taken an a c t l v e interest In the work of the Dranch, su5-brmcll or office to which he 1 s

at tached o r belongs by attending ctt le?. ..st 50% of the Brsnch or

sub-branch meetlngs €or iit least two years imme?iatcl7 pr io r

2.

t o the d a t e of the c a l l i n g of nominations docs not contrclvcnc

s.lrlO(1) ( c ) of the Conciliation & A l b l t r a t i o n A& 1 9 0 4 ( the

Act) or a l t r r n a t i v e l y why that sub-rule 1 n s o f . v as it conta ins

the words "by e t t end ing a t least 50% of the b-anrh or

sub-branch meetings for a t least two years immediately prior

t o t h e c l a t e of c a l l i n g o€ app1 ica l ; i on ( s i c ) " does no t

contravene S. l40(1) ( c ) o€ the Act as amended.

The r u l e i n q u e s t i o n prescribes condi t ions of e l i b i l i t y

t o rlornlnate f o r e l e c t i o n t o t he pos i t i on of Federal Secre t a ry

of the respondent. SuL-r.(d) of r . 6 i s i n t h e fOllOb7ing

terms : -

"(6) To be e l i g i b l e f o r n o m i n a t i o n f o r e l e c t i o n as

Federa l Secre ta ry a person must at t he ( l a t e

of his nominat ion:-

( i ) have been a member of the

Fede ra t ion con t inuous ly fo r a t

least three yeafs ;

( i i ) hsve been a financial membrr of

the Federat lon cont lnuously f o r I

a t l eas t two years immedlately

p r i o r t o h i s nomination;

(lli) have t a k m m s . c t l v e l n t e r e s t i n

the work of the branch,

Sub-Branch o r o f f i c e t o whlch he

i s a t tached be longs or by

a t t end ing a t least f i f t y p e r c e n t

of the Branch o r Sub-Branch

meetin25 f o r a t lesst two y e s r s

ImmdLately pr ior to the c:al:e of

c a l l i n g of app l l ca t ion .

(1v)	Tnis	c o n d l t i o n	s h a l l	not;	apply
Where	: -

(a) The zpp l i can t was xorking shif t

work provldinq he has a t tended 50

percent o € the meetings of thc

Branch O Y Su;S-Si-anch C7hlC'n fa.11

on the week o r cjecks I n which he

works day s h i f t ; o r

3.

(b) The applicant ~7as absent throuqh

attendlng to official	union
business

(c)

An apology with reasonahle escusI: taken as attendance atthe

meeting . 'I

Provision by rule of restrictions on t'ne eligibility of

members to nominate for office In organizations under the Act

based on factors such as the duration of membership and

financial status are not uncommon. They are based on

conslderations qomg to the stabillty of the organizatlon, and

the dcsirabillty of persons in office being acquainted wlth

the industry, the rules of the organlzatlon and the practical

admmistration of a registered orqanlzntlon. In this

connection there is a difference between categories of

officers. The office of federal secretary is an extremely

important office in an organization of employees. See

Levct-idqe v. Shop Distr-llSur:lve and A l l a r l E m o l o y a

Associzt~g~ ( 1 9 7 7 ) 31 FLR 385 and Allen v. Tobm& ( 1 9 7 7 ) 31

FLR 431, at 457. Restrictions on the eliglbillty of membcrs

t o nominate €or electlon to the Office of Federal Secretary

nlore strhgent t'nan those for other of€ices may be thought

I

appropiiz-te 3 y the membership and be imposed by rule. Rtit

such resr;ricLlons iOUsI; {lot be s u c h as I;o lrlgos,? up;~n the

rneInSef shi9 o l members conditions, (dJ1:gAtlOfIS or res t r l c tioi15

!	which having Leqard to the o5jects of the Act and the purpose5
of the registration of organizatlons undcr the Acc aie
oppressive, unreasonable or unjust wlthln the mcming of
s.l30(1)(c). In Mvnlcipal Off lccrs ' Asspciatlon of Austrcl la

I

4.

v. Lancaster (1981) 54 1'LR 129 at 165 it was sald by neane

J. : -

"There is nothing in the context of s .140(1 ) (c)

which would justify giving an cxpansive

constructlon the of requirement that the

conditions, obllgations or restrictions imposed by

the rules of an organlzation upon applicants for

memhership OK members not be 'oppressive,

unreasonable or unjust'. Those three words are

used objectively In the clause m d each of t'nen is

to be given its ordinary strong meaning. Plainly,

their meanings overlap and definitlon IS liable to

adulterate the strength whlch the words possess .

Nonetheless, it seems desirable? that I indicate

the meaning which I ascribe to them. To be oppressive, a condltlon, obllgatlon or restriction must he burdensome, harsh and wrongful ( s e e , for

esample, Scottlsh Co-operatlve moiesa le SOC-

v. Meyx C19597 A.C. 324, at p.342; Re Jermyn Street Turkish Eaths Ltd. C19717 1 hXR 1042; Allen

v. Townsend (1977) 31 FLR 431). To be

unreasonable, it must be immoderate an6 inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play (see, €or example, ReKempthorne Prosser I; Co. 's New Zealand Druq Co. Ltd. C19641 NZLR

49). "

I t 1 s sc?lrl for. thc. apprllmt that sub-rr.6(d) (lii) and . .

( i v ) (c) are burdensome anc! 1nzpproprj.atc ami contrriry l;o

justice ar:d to ordinary standa.rds af f a l r play. A requirement

that a candidate for election to the office of Federal

Secretary should have taken an actlire interest In the work of his branch, sub-branch or afflce to which he is attached could not be reprded as within ang of those categories. Bxt thls

I

I

I	rule	while	peying l l p servi:?	to such n stantard, 3 o c s not
I

adopt it,. It provides R c~lterlon by reference to r7hlch, and

by whlch alone the specifled interest of a member may be

manifested. Th\!s r,he rnembe?r rntlyt have nttencle3 f i f t y 2ct

centum o € the brmch or Sub-Branch meet-Lqgs f o r the two ycar:

Liflril<Xlla.t,Oly pr LCIC t o the (:all Lng f OL- nou[m?.t ~ o : 1 5 . A s E

5 .

mca~u~-c of a mcmber's activc intercst in thc affa1r.s of t;ho

organiza tlon this requirement mey well be t'nought to 3e

lnherent ly artif icinl and inappropr late and t k r ? is little

doltbi; that the r u l e standlrlf: by ltself r79uld be burdensome,

inappropriate and unjust in its applicatlon to a considerable body of the mcmbershlp at least in New South F k l e s and

Queenslend. Some 1000 NSW members ar? resldent in and about

Albury. About 300 members are resident in country towns and 163 of these reside in Gundagai, Tumut, Dubbo or Taree. Each

of these localitles 1 s over 250 kilometres from Sydney. In

Queensland the membership is found residenr: at localitles even

I

more distant Erom Brisbane.

It was recognlzed by the learned trial judge that an

apology by a member resident at Albury for non-attcndance at a

Branch meeting in Sydney and based on the difficulty arislng

from tiistznce 17ould disclose an excuse inherently reasonable.

Relevant consid;:ratlons are the distance itseif, Yh? necessity

f o r a number to remain in Sydney f o r the night of the meeting,

the accompanylng expense and dislocation of the member's

i	employment. And with this Lhere is and can be	no dissent.
I
I

Accordingly, but For the presence of su3-r.6(d)(i-7),

i

sub-rule 6(tl)(i11) GGU:~ inevltzbly contrmene s . l ' l O i l ) ( c ) of

the A c t . However., su5-r.6(d) (1x1) so qualifies sub-r.%(d) (lii)

wiLh respect to a member who fails to attend f i € l ; y per cent of

branch meet lngs during the relevant two year pe: iod that, l f

the rseeting or meetlngs actually attended by him durlrq t'nal:

period, together r j i k h incltlngs h . ? nttcndmcc nt vhich w a y

G.

excused under sUb-r .G(d)( iv)(a) . ( b ) ar ( c ) , would cons t i t l i t e

f i f t y per cen t a t tendance of t he r e l evan t brclnch ~nee t lngs ,

then t h a t member sat isf ies the requirements of s u b - r . 6 ( b ) ( i i l )

and i s en tx t l e2 t o nomlnate.

If sub-r r . ( 6 ) (d) (iii) and 6 ( d ) (1v ) read toge ther impose

r e s t r i c t i o n s on nomlnat ion for . the off ice vhich are n o t

burdensome, i n a p p r o p r i a t e , c o n t r a r y t o j u s t l c e or t o o r d i n a r y

standards oi f a i r p l a y t h e n there i s no contravent ion of t h e

provis ions of s.140(l)(c) of the Act.

Mr. Kenzie for the appellant contended that upon t h e

proper cons t ruc t ion of s u b - r . b ( d ) ( l v ) ( c ) i t ope ra t e s , In the

case of any pa r t i cu la r r e l evan t mee t ing , t o modify the

requirements of swb-r .6(d)( l i1) only If the apology submltted

d i sc loses an excuse which, objectlvely looked a t i s reasonable

111 thc circumstances znd bJ;!ich the branch accc2ts as such. He

submltted that the member could qain no b e n e f i t F r o m t hc

s u b - r u l e i f h is excuse was not objectlvely reclsonable or i f

t h e Branch meeting merely received the apology and did no t

pos i t i ve ly accep t i t . He s a i d t h a t the sub-rule Imposes no

duty on the Branch even t o c o n s l d e r whhet’her it woLld accept o r

no t accept the apology and that i t lrnpoyes no duty on the

Eranch t o adv i se t he member whet’hec the ,~polo$y has 5t?,?n

;iccepted 0 2 no t . Se polnted out; t h a t t3ere was no provision

f o r t h e nexber t o be heard on the ques t lon of ncceptance and

t h a t the na tu re of the p r o c e s s O F consider ing vhether to

accept OL riot to accepl; the ;IpCjlOgy was not such as t o a t t t a c t

principles oF na tu ra l justlcc.’. H? sltbmitted a l s o I;:?aL- thc

7.

branch meeting nctlng pcrfei:tly bona fic'e 1u1ght not be

persueded to treat ;?. particular ej:cus:c 8 s reasonable a1thouc;h

a reasonzble man r,:icjht be expected to kold that 1t ~~2.5. He

pointed out that if the reeeting vrongfully €?.!lletl to acc?pt , m

apology that ellgibility to nominate and subm1tr;ed that there 6;ould Se no remedy. failure could be critlcal to the member's

A returning officer having before him a nomination of a

member whose apoloqy had not been accepted, whether rightly or

wrongly, could not treat the member as a person whose apoloqy

had been accepted. Also, once the meetlng has been closed and

the members who attended have departed the meeting would be at

an end so khat an apology, if not already accepted, can never

bc accepted at that meeting. The sub-rule has regard only to

m acceptance "by the meeting". From a practlcal polnt of

view the prospect o€ taklncj action under t'ne Act zgain-,t the

I	~aenlbers who were at he meeting, who m a y comprise z g r e z t
number of memhers, could not be regarded as real. The same
may be said as to the prospect of Inducing a returning
o€ficer, even ln relation to an election conducted under
ss.165 or 170 of the Act to act "notwithstanding anything
contained In the rules" by accepting the nominztion of rl candidate T J ~ O , because o € non-zcceptance of his a~olocy or
apologles, hac: not fulfilled thc? requircmcnts of
sub-r.6(d)(lv)(c).

It is not certain that s{!b-r.G(d)(i~)(c) imposes on t h e

branch mecticq t o which m apology €or non-attendance 15 '.

tendered a duty t o dccidc w h c t h c r t o zcccpt thc apology. A

meeting whlch merely received the apology mlght not bc i n

breach of any duty. For presen t purposes one nay assume tha t

the re is such 2 duty. Eut even :,o the practical d l f f l c u l t i e s

of r e s t o r i n g t h e p o s l t i o n of R member who i s disadvantaged by

a fa i lure t o pet-form th3.t d u t y r m d c r ~ t existerice of no s

importance on questlon the whether the sub-rule is

inappropr ia te o r u n j u s t . I n c i d e n t a l l y , the not ion that a

branch meeting, as such, whlch may comprise a g rea t number of

members, i s a su i t ab le t r i buna l t t o t e r rn lne the

reasonableness of a member's excuse f o r non at tendance, i s

i t s e l f s u b j e c t t o ser ious ques t lon .

I t s u b - r . 6 ( d ) ( i v ) ( c ) t h e e l i g i b i l i t y i s a p p a r e n t t h e r e f o r e t h a t i n the opera t ion of

of a member may depend upon

the dcc i s lon non-at tendance of a b r a n c h n e e t l n g i n r e l a t l o n t o a n a p o l o g y f o r

tendered to I t . If attenciance o r -7.n accepted

apology n n-attendance for a'. a part1cula.r mc-?tinc; @ L

particu1a.r meetings w a s n e c e s s a r y t o make up the quota of

f iF ty per cent a t tendance o r excused non-attendance a t branch

meet ings in the r e l evan t pe r iod of two yc?.rs, the f a i l u r e t o

accept apologies will r a s u l t i n t h e mexber f a i l i n g t o q u a l i f y

t o nominate f o r e l e c t i m .

I

I	A s	inciicated	above	a n	a p o l o ~ y	on a giound p u t forward as
I

! a reasonable excuse for non-attendance inay no t be accepted 3y

i t h e meeting, a c t i n g q u i t e bcna f i d e a c c o r d m g CO I t s v l e v of

the reasonaSlcness of the excuse. The .Tub-rule ope ra t e s not

only with respec t t c : apologies b?..;e< on di'flcull;?s 0;

) I I F I . I I I W ~ S arlsinq out of dlstance €ro!rl Sydney, but to apologies

based on all manner of grounds of c:::cuse. Illnesses of varying severity, family circumstmces of one kind or another, obllgatlons to other organizatlons, all come to mind 2 s

possible grounds. And the eliglbility of a. mezbcr not

attending a meetlng critical to his compliance [ n t h

sub-rr.6(d)(ili) and G(d)(lv)(c) G7111 depend. on the decision

of the meeting as to whether the excuse put forward was

acceptable. Provided that decision was bona fide the member

would have no avenue by which to seek a reversal of that

decision, and this notwithstandmg that the excuse is one

which a court mlqht or even would consider reasonable. The

conditlon in sub-r.6(d)(iv)(c) is that the excuse is accepted

by the meting, not that it ought to have been so accepted.

I

Apart from other aspects of the justlce or appropriateness of the sub-rule in question the insertion into a scheme such as that c?mbodled 1.') r.6(d) of (F. (ieclsion of d rfeeting <?!c. to thc reasonnbleness of XI e::cusc- for non-attendance at a meetinS, as a condition of eliglbillty to stanc? for oiflce raiser, crltical questions as to the ]usl;lce and appropriateness o€ the rule.

Sub-rule 6(c:) (lil) creates difficlllties for membsrs

reTLdent at long distances from Sydnq ?ad perhz2s f o r other

members. No dou3t suS-r.6(d) (iv) was promulgated to allevlatc

thc posltlon of members who were faced with difficultles In

attending branch meetings. But it would seem, that for EL

comlitior. of ellglbllity to nominal;(? € o r (jfflc? to be lust and

appropriate it nmst be one which a good mem!)er can satisfy by

i

10.

his own e f f o r t s . Sub - r u l e G(d) (iv) ( c ) s p c c i f l c s a c t i o n which

the Inember may take with a m e w t o s a k i s f y m g th? cundi t lon

expressed there in , b u t i t s t i p u l a t e s that the e f f ec t iveness of

such a c t i o n 1s t o depend on the opinlor. of the mc-tlng as t o

whether or not an apoloqy s%ould be accepted . Khi le o f fe r lng

the proceduLe of apology the rule makes c l e a r that whether the

apology wlll be f f ec t lve t o r e l l e v e t h e .member from the

requi rement of sub- r .6(d) ( i i l ) w i l l be sub -~ec t t o the dec l s ion

of the re levant meet ing as to the r easonab leness of the s t a t e d

grounds of excuse Tor non-actendance. In a r ea l s ense t he

sub- ru le c rea tes a s i t u a t i o n i n w h c h n o t o n l y 1 s t h e member's

e l l g i b l l i t y s u b ~ e c t a r t i f i c i a l i t y t h e t o c r e a t e d by

s u b - r . 6 ( d ) ( l i i ) , b u t , escape the route provided by

s u l 1 - - ~ - . 6 ( d ) ( i v ) ( c ) o f f e r s no c e r t a i n t y h e o member. I t

leaves him s u b j e c t t o t h e judqment of the meeting on t h e

s ta ted grounds of excuse for non-at tendance thereat . The

member who uses thc prof€ered esca ie route cannot knnw c<b.ethcL

or no t h i5 ,?.ction i n clalng s o wlll cont rkbute to q,ualifY him

t o nomlna te fo r e l ec t lon to Fede ra l Sec re t a ry .

I t might be m i d t h a t i f a member relies upon

apologis ing Tor non-attendance a t a meeting rather t h a n

attcncling i t , t h a t I S hls d;cisiori and he thereby submits t o

t he ]udqmcr!t of the mnetlng. Dut It 1 s t o be observed that

the so cal led escape route f rom the r i g i d i c y of

s u b - r . 6 ( d ) ( i l l ) r e l a t e s t o a r u l e which without an escape

route , would of iend the provls ions of s . : ?O( l ) ( c ) of the Act.

To be j u s t 2nd approprlake the scape routs must be one by

which the member can, by his own conduct , z f fcc t the e ~ c a p e .

11.

It is incompztible with the ob~ectives OF the Act and the

purposes of registration including the democratic control of

the union that eligibility to stand f o r office should dcpenc:

upon the view of a branch rneetlng as to the reasonableness of

the excuse of a memher €or non-attendance at a meeting or

series of meetings.

the sub-r.6(d)(iii) even as modified by sub-r.6(d)(ivl contravenes light of the foregoing it appears that

In

S. 140(1) (c). It creates 2 situation in which, subject to relie€ to shift workers and persons actively engaged on Union

affairs when branch meetinys are being held, relief from the

provlslons of sub-r.6(d)(iii) is available only through

sub-r.6(d)(iv)(c). As that relief 1s conditional on a

favourable decision of a meeting as to the reasonableness of

an excuse for non-attendance at a meeting or relevant meetlng

It	does
not Invalidity. remove from sdb-r.6(d)(iii) 1 ~ s inherent

The consequence 1s tllere_Eore t'ht sub-L-.6(d)(ill)

ancl sub-r.C(d) (%v) lrnpose conditions and restrlctlons upon

members whlch havlng regard to the objects of che Act and the purposes of the reglstration of orgmizations under the Act

are oppresslve an(? unjust.

The Court Should

I

I

(1) allow	the appeal,
l

'.

1 2 .

F'edcral Sccrctary of the organisation a meniher

must at the date oi nomlnatlon have taken an

active interest in the work OE the Branch,

su&branch or office to whlch he is attached of belongs by attending at least 50% of t'ne Branch

or sub-branch meetings for at least two years

immediately prior to the date of the calllng of

nominations contravenes the provisions of

s.l40(l)(c) of the Act; !

(iii)

as a consequence of order (il) above the court the provisions of S. lGO(l)(c) of the Act.

I certify that this and

the preceding eleven (11)

pages are a true copy of the Xcasorls for Jud:gment

Assoclate

Date: 15 August 1985