Neilson, Richard Wayne v Corsetti, J

[1997] FCA 1276

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - rule to show cause - interpretation of Rules of the Union - preliminary question to be tried - whether State Council empowered to hear and determine charges of gross misbehaviour or gross neglect of duty.

Federal Court Rules, O 29
Workplace Relations Act 1996, s 208, 209

RICHARD WAYNE NEILSON v J CORSETTI & OTHERS
VI 1273 of 1997

NORTHROP J
21 NOVEMBER 1997
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1273  of   1997

BETWEEN:		RICHARD WAYNE NEILSON APPLICANT
AND:		J CORSETTI & OTHERS RESPONDENT
COURT:	NORTHROP J
DATE OF ORDER:	21 NOVEMBER 1997
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The question referred to the Court for decision be answered as follows:

Question:Is the Victorian State Council of the Union empowered by rule 11.3 of the Rules of the Union to hear and determine charges of gross misbehaviour or gross neglect of duty against the Regional Assistant Secretary/Organiser, Food and Confectionary Division ?

Answer:Yes.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1273 of 1997

BETWEEN:	RICHARD WAYNE NEILSON APPLICANT
AND:	J CORSETTI & OTHERS RESPONDENT

COURT:	NORTHROP J
DATE:	21 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The respondent Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) is an organisation of employees under the Workplace Relations Act 1996 (“the Act”). The applicant is a member of the Union. In December 1996 the Victorian State Council of the Union initiated proceedings under the Rules of the Union (“the Rules”) to remove the applicant from the office to which he had been elected, namely the office of Regional Assistant Secretary/Organiser, Food and Confectionary Division of the Union. The proceedings were based on Rule 11. The applicant claimed that the State Council had no power to remove him from that office. Pursuant to s 208 and s 209 of the Act, on 24 February 1997 he commenced proceedings in the Industrial Relations Court of Australia against the respondents. On that date the Court granted an order calling upon the respondents to show cause why a number of orders should not be made. Some of the orders sought appeared to be directed to those natural persons named as respondents being members of the Union and being members of the Victorian State Council. The orders sought against those members were to the effect that they be directed to perform and observe the rules of the Union by, in substance, not continuing with the proceedings against the applicant. These orders appear to be based upon s 209 of the Act. No reference has been made to s 209(3) of the Act. At the same time, on 24 February 1997 the Industrial Relations Court made interim orders preventing those persons from taking any step in the proceedings against the applicant until further order. That interim order remains in existence.

The orders sought in the rule to show cause raise a number of questions relating to the validity of some of the Rules and whether the Rules comply with the provisions of the Act. One question that arises is whether, under the Rules as presently in operation and without considering any questions of validity, the Victorian State Council has power to remove the applicant from his office. The answer to this question involves the proper construction of Rule 11.1, Rule 11.2 and Rule 11.3 of the Rules having regard to the Rules as a whole and the structures of the Union. The parties agreed that this question be determined as a separate question pursuant to O 29 of the Federal Court Rules. To give effect to this agreement, on 17 March 1997 the Industrial Relations Court of Australia ordered that this question be determined as a separate question, namely:-

“Is the Victorian State Council of the Union empowered by rule 11.3 of the Rules of the Union to hear and determine charges of gross misbehaviour or gross neglect of duty against the Regional Assistant Secretary/Organiser, Food and Confectionary Division.”

That question has come on for hearing and determination before the Federal Court of Australia.  If the answer to the question is in the affirmative the action in this Court would continue.  If the answer is in the negative, the action, in all probability, would end, the applicant having achieved his objective.

Rule 11.1, Rule 11.2 and Rule 11.3 are set out in full:-

“1.Removal from Office

By a two-thirds majority of votes taken at a meeting of the National Conference the Conference may by resolution decide that a National Official or Officials of the Union, of the Technical and Supervisory Division, the Vehicle Division, or the Food and Confectionery Division or the Printing Division named in such resolution has been found guilty of misappropriation of funds, a substantial breach of rules of the organisation or a gross misbehaviour or gross neglect of duty or has ceased according to the rules of the organisation to be eligible to hold the office concerned and may remove them from office if found guilty.  A proposal to submit such a resolution to the Conference must be notified to any such Official or Officials in writing not less than 14 days before the Conference is held.  Furthermore the carrying of such a resolution shall not debar the Official or Officials involved assuming they possess the qualifications prescribed by these rules from being nominated and accepting nomination in the subsequent ballot to fill the position or positions.”

“2Similar action may be taken by the National Council in connection with any National official of the Union, of the Technical and Supervisory Division, the Vehicle Division, the Food and Confectionery Division or the Printing Division or State Representative on the National Council.  Where such a decision is made by the National Council it shall be submitted to the members of the National Conference by post for endorsement.  No such decision of the National Council shall have force or effect until such time as it has been submitted to and endorsed by a majority of members of the National Conference.  Furthermore, no such decision shall debar any person affected, provided they possess the qualifications prescribed by these rules, from nominating in the subsequent ballot to fill the position.”

“3State Action

Action in accordance with clauses 1 and 2 of this Rule may be taken by a State Conference and/or State Council in connection with any State Official, Delegate to State Conference or Delegate to State Council.”

Rule 11.1 is long and convoluted but in essence it confers a power on the National Conference to decide whether “a National Official or Officials of the Union, of the Technical and Supervisory Division, the Vehicle Division, or the Food and Confectionary Division or the Printing Division” is guilty of a named offence and, if guilty, to remove the person from office.

Rule 11.2 confers a similar power on the National Council in connection “with any National Official of the Union, of the Technical and Supervisory Division, the Vehicle Division, the Food and Confectionery Division or the Printing Division or the State Representative on the National Council, but any decision will not have effect until endorsed by a majority of members of the National Conference.

Rule 11.3 is short but gives rise to difficult questions of construction.

In order to understand the submissions made, it is necessary to give a brief outline of the structures of the Union. This is not an easy task since the Rules cover some 200 pages of A4 paper and are very verbose. Although they appear to adopt a pattern, there is no clear setting out of the various committees, by whatever name, of the Union, the composition of the committees and the powers of the committees. Strangely, the Rules make no reference to branches of the Union despite the repeated use of the words “organisation” and “branches” in the Act in connection with rules of organisations and branches. This can be explained, possibly, by reference to the history of the Union which resulted from the amalgamation of a number of disparate organisations which resulted in one organisation, the Union, and confusing those earlier organisations with branches, some of which are now called Divisions. It is difficult to determine what constitute the branches of the Union, assuming there are branches. An organisation is not required to have branches. The Union is the organisation but comprises four Divisions. It also comprises State groupings. Each Division has many of the attributes of an organisation but the State groupings cut across Division boundaries. Some members of the Union are not attached to a Division but all members of the Union are attached to a State group.

In substance, counsel for the applicant contends that the applicant is an official of the Food and Confectionery Division of the Union with the result that the National Conference is the only committee with power to take action against him under Rule 11.1. To some extent, this submission implies that the word “National” qualifies the word “Official” but not “Officials” in Rule 11.1 and that the applicant is an Official but not necessarily a National Official of the Food and Confectionery Division of the Union. Rule 11.2 could apply, but any action by the National Council would need to be endorsed by a majority of members of the National Council.  It followed, therefore that Rule 11.3 did not apply, Rules 11.1 and Rule 11.3 being mutually exclusive.

Counsel for the respondents who appeared at the hearing contended that the applicant is a State Official under Rule 11.3 and thus the State Council had power to take action against him even if the decision of the State Council had to be endorsed by a majority of members of the State Conference.  Counsel contended that Rules 11.1 and Rule 11.3 were not mutually exclusive and the fact that the applicant might come within Rule 11.1 did not prevent him coming within Rule 11.3.

Rule 1 of the Rules is headed “NAME OBJECTS AND CONSTITUTION”.  Apart from the introductory words it contains 9 sub-rules identified as 1.1A, 1.1B, 1.1C, 1.1D, 1.1E, 1.1F, 1.1G, 1.1H and 1.1I which appear to define persons who are eligible to become and remain members of the Union.  These sub-rules appear to be based on the eligibility rules of the earlier organisations.  These sub-rules cover 14 pages.  Sub-rule 1.1G appears to be based on the earlier organisation known as the Confectionery Workers and Food Preservers Union of Australia.

The Rules do not contain any rule constituting branches of the Union.  The Rules do not appear to contain any provision enabling any committee of the Union to create branches.  At the hearing, there was a dispute between the parties as to whether there were branches and if so what were the branches.

Sub-Rule 1.3 of the Rules is headed “OBJECTS”.  It contains no numbered sub-rules.  At the end of the Rule, the registered offices of the Union are set out.  The registered office of the Union is at Sydney.  The registered State offices of the Union are set out.  There are six State offices, one in each of the States NSW, Victoria, Queensland, South Australia, Western Australia and Tasmania.  The State office in NSW is at a different place to that of the Union.  This would suggest that the branches of the Union are based on States.  It is noted the Divisions are not mentioned in Rule 1.

Rule 2 of the Rules is headed “ELECTIONS AND VOTING”.  Rule 2 is divided into 2 Parts being Part A and Part B.  The rule extends over 20 pages.  Each Part has many sub-rules.  Part A has no heading but relates to the election to the offices within the Union of National President, National Secretary, Assistant National Secretary and National Organisers and of State President, State Secretary, Assistant State Secretary, State Organisers, Regional Delegates to National Conference and Zone Representatives to State Conference but Part A does not apply in respect of elections for specified offices including Assistant National Secretary which is held by a person holding office as Federal Secretary - Food and Confectionery Division; see Rule 47.

Part B is headed “Elections at State Conference” and relates to the elections “by an from the delegates to State Conference for the office of State Vice-President”, “by and from delegates to and members of State Conference for each of the offices of State representatives to National Council” and “by and from delegates to State Conference for each of the offices of delegates to the Administrative Committee and delegate to State Council”.

Rule 3 of the Rules is headed “NATIONAL CONFERENCE”.  Rule 3 contains many sub-rules.  Rule 3.1 provides that the government of the Union is entrusted to the National Conference which normally meets every two years.  Rule 3.2 identifies the membership of the National Conference as being the members of the National Council, Regional delegates to National Conference, Technical and Supervisory Division delegates to National Conference, Vehicle Division delegates to National Conference, Food and Confectionery Division Delegates to National Conference and Printing Division delegates to National Conference.  This is the first reference in the Rules (at page 38) to the four Divisions.  The Division relevant to the matter before the Court is the Food and Confectionery Division.  Rule 3 makes it clear that Regional Delegates to National Conference are to be elected to national Conference by and from members not attached to any of the four Divisions.  The Divisional delegates are elected by and from members of the Union attached to each Division respectively.  Rule 3.6 applies to the election of the delegates to the National Conference from the Food and Confectionery Division.  The delegates are the Regional Secretary and Regional Delegates to the Divisional Conference of the Division.  These persons may well be National Officers but they may be State Officials also.  The elections are conducted by the State Returning Officer.

Rule 4 of the Rules is headed “POWERS OF NATIONAL CONFERENCE”.  Rule 4 contains many sub-rules.  The National Conference is the supreme governing body of the Union and its powers include a large number of powers enumerated in Rule 4.1 and Rule 4.1A.  The enumerated powers include the power to impose penalties in accordance with the Rules, to deal with and decide any matter referred to it by a wide range of committees including the Conference or the Federal Executive of the Food and Confectionery Division.  The National Conference has the power to exercise all or any of the powers of the National Council, the power to fix the salary and conditions of employment for all full-time officials and salaried officers, and the power to make and vary rules but, as with the other Divisions, the power to make or alter rules affecting the Food and Confectionery Division is limited in that any change has no effect unless approved by a majority vote of the Food and Confectionery Division Conference of that Division.

Rule 5 of the Rules is headed “NATIONAL COUNCIL”.  There are many sub-rules to Rule 5.  Sub-rule 5.1 specifies the members of the National Council.  They include the National President, the National Secretary, the Assistant National Secretary of the Food and Confectionery Division, and delegates representing each State elected in accordance with Rule 5.5.  These delegates are elected by and from members of State Conference in each State other than those from any of the four Divisions.

Rule 6 is headed “POWERS OF NATIONAL COUNCIL”.  The National Council is the Committee of Management of the Union.  Subject to the powers and decisions of the National Conference and the Rules the National Council has “the care, control, superintendence, and management in all respects of the affairs, business, funds and property of the Union”.  A number of specific powers are conferred upon the National Council.

Rule 11 is headed “REMOVAL OF NATIONAL OFFICIALS AND STATE REPRESENTATIVES ON NATIONAL COUNCIL”. Rules 11.1, 11.2 and 11.3 have been set out earlier in these reasons. In its context in the Rules, Rule 11 appears to be directed to National Officials and State Representatives on National Council. There appears to be no rule defining the terms “National Officials” and “State Representatives on National Council”. The National Officials would seem to include the persons elected to the offices referred to in Rule 2 Part A.1. Having regard to the meanings to be given to the words “office” and “officer” by s 4 of the Act, the phrase “National Officials” could cover all persons, whether called officials or not, elected to National Conference either directly or by a collegiate method, as well as other persons elected to other collective bodies of the Union or its branches. In its context, it is difficult to draw a distinction between an elected officer and an elected official.

The meaning to be given to the words “State representatives on National Council” in the heading give rise to difficulty.  Under Rule 20.2(f) a State Conference has the power to elect by and from its members State representatives to National Council.  These persons in all probability come within the phrase set out.

Rule 11.3 does not, on its face, refer to national officials or State representatives on National Council.  It is directed to State Officials, Delegates to State Conference and Delegates to State Council.  Rule 11.3 appears, by adaptation and with all necessary adjustments, to apply powers conferred by Rule 11.1 and Rule 11.2 with respect to officials at the State Council level.

Under Rule 14, payments are made to the Union which acquires and holds property in the name of the Union.  Rule 15 relates to the funds of the Union.  Moneys received by State Councils, with certain exceptions, are to be banked to the credit of the Union and regularly are transferred to the banking account of the National Council.  Moneys are then provided by the National Council to State Councils to enable the State Councils to carry out their duties and perform their functions under the Rules.  This rule appears to negate the idea that there are branches of the Union.

Rule 19 is headed “STATE CONFERENCE”.  Each State has a State Conference consisting of the State President, the State Secretary and Assistant State Secretaries, Zone representatives to State Conference, delegates from the Divisions but delegates from the Food and Confectionery Division are limited to delegates to State Conferences in NSW, Victoria, South Australia and Tasmania only.  The Zone representatives to State Conference are elected by the Divisions in conformity with stated Rules.  Rule 47 relates to the Food and Confectionery Division.  Rule 47 will be considered in these reasons.

Rule 20 is headed “POWERS OF STATE CONFERENCE”.  Each State Conference meets normally every two years.  Subject to the powers and authorities of the National Conference and National Council, a State Conference has wide powers in relation to the affairs of the Union within the boundaries of the relevant State.  It can override decisions of State Council.  It elects from its own members some of the officers on State Council.  It elects by and from its members State representatives to National Council.

Rule 21 is headed “STATE COUNCIL”.  Each State has a State Council consisting of the State President, the State Vice president, the State Secretary and the Assistant State Secretaries.  In addition there are a large number of delegates elected from State Conference and delegates from Divisions.  Rule 47 contains provisions relating to election of delegates from the Food and Confectionery Division.

Rule 22 is headed “POWERS OF STATE COUNCIL”.  Normally a State Council meets quarterly and serves the purpose of the executive body of the State Conference.  Generally it directs the work of the Union in the State of which it is the State Council.

Rule 23 is headed “STATE OFFICIALS”.  The State Officials are the State Presidents, the State Vice Presidents, the State Secretaries and an Assistant State Secretary of a Division but there is a variation with respect to different States.  It is noted that in each State other than Queensland, Western Australia and Tasmania, there is, as a State Official, “an Assistant State Secretary - Food and Confectionery Division”.  State Officials include State organisers.

There is much to be said for the view that a Regional Assistant Secretary/Organiser - Food and Confectionery Division is a State Official.  This will become clear when Rule 47 is being considered.  In summary, under Rule 23.1(a)(iii) an Assistant State Secretary - Food and Confectionery Division is a State Official.  Rule 24 imposes duties on State Officials.  Under Rule 24.3, the State Secretary is the main Executive and Administrative Officer of the Union in the State.  The powers and duties so conferred are extensive.  Among other duties, the State Secretary is required to carry out duties allocated to the State Secretary by the National Conference, National Council, State Conference or State Council. Under Rule 24.4 each Assistant State Secretary is required to assist the State Secretary and carry out duties allocated by the National Conference, National Council, State Conference or State Council.

Rule 24.6 constitutes a State Administrative Committee one of the members of which is the Assistant State Secretary - Food and Confectionery Division.  That Committee acts as the Administrative Committee of the State Conference and State Council.

Rule 47.14 creates Regional Councils.  The Regional Assistant Secretary - Food and Confectionery Division is a member of a Regional Council.  A Regional Council conducts and manages the business of the Food and Confectionery Division within the Region.  Under Rule 47.14A, State Council and State Secretary approve the number of salaried officers in the Regional Office.

Under Rule 47.17 the Regional Secretary of the Food and Confectionery Division in Victoria holds office as Assistant State Secretary - Food and Confectionery Division and carries out the duties assigned to the office of Assistant State Secretary under Rule 24.  Under Rule 47.18 a Regional Assistant Secretary/Organiser - Food and Confectionery Division, in the absence of the Regional Secretary, carries out the duties of the Regional Secretary.  These duties would include those of the Assistant State Secretary under Rule 24.

Rule 25 contains provisions relating to State Zones and does not need to be discussed further.

Rule 30 relates to complaints and appeals.  The appeal structure is first to the State Administrative Committee (see Rule 24.6), then to State Council, then to national Council, and finally to National Conference.  Presumably an appeal from a decision of a State Council under Rule 11.3, if approved by a majority of members of the State Conference, could be taken to National Council and later to National Conference.

Rule 36 contains provisions relating to remuneration of elected full time officials and salaried officers.  Rule 37 relates to membership including applications for membership.  Applications are made to the State Office which, where necessary, allocates a new member to a particular Division and collects union dues.

Rule 47 is headed “SPECIAL ENABLING RULE - AMALGAMATION OF AMEU AND CW&FPU”. It is similar to other rules relating to the other three Divisions. Rule 47 is designed to bring about and facilitate the amalgamation of the two former organisations the Automotive, Metals and Engineering Union and the Confectionery Workers and Food Preservers Union of Australia”. Rule 47.4(a) creates the Food and Confectionery Division which consists of members of the Union in New South Wales (including the ACT), Victoria, Tasmania and South Australia.

Under Rule 47.5, the membership of the Food and Confectionery Division is divided into four regions and members of the Union and Division are attached to the region of the Division in which they work.

Rule 47.6 establishes a Food and Confectionery Division Conference, the membership of which includes delegates from the Regions, the Regional Secretaries of the Division and the Federal Secretary of the Division.  Under Rule 47.7 the Food and Confectionery Division Conference shall, subject to the Rules and decisions of National Conference, National Council and National Administrative Committee, “have the management and control of the affairs of the Food and Confectionery Division”.  These powers do not extend to financial matters.  Normally the Conference meets biennially.

Rule 47(9) establishes a Food and Confectionery Federal Executive consisting of the Federal President of the Division, the Federal Vice-President of the Division, the Federal Secretary of the Division and three Executive Members elected by and from the Division Conference.  The Federal Executive meets normally once at least every four months.  Under Rule 47(12) the Federal Secretary of the Division holds the office Assistant National Secretary of the Union.

Rule 47.14 establishes a Regional Council with respect to each region of the Division.  Included in the membership of each Regional Council is the “Regional Assistant Secretary - Food and Confectionery Division”, if there is one.  This is the office held by the applicant.

Rule 47.14A enables the State Council and State Secretary to determine the number of salaried officers of the regions necessary for management of the affairs of the Regional office.

The duties of the Regional officers are set out.  Under Rule 47.17 the Regional Secretary of the Division, other than in Tasmania, holds office as Assistant State Secretary, of the Division and carries out the duties assigned to the office of Assistant State Secretary under Rule 24.  That rule sets out the duties of “State Officials”.  The holder is on State Council.

Rule 47.18 lists the duties of the Regional Assistant Secretary/Organiser, if any.  The holder of the office assists the Regional Secretary in the execution of his or her duties and in the absence of the Regional Secretary, carries out the duties of the Regional Secretary including, presumably the duties of Assistant State Secretary under Rule 24.

Rule 47.20 creates Regional Executive Committees.  The Regional Assistant Secretary of the Division is a member of this Committee.  This Committee is subject to the decisions of, among other bodies, State Conference, State Council and Regional Council.

Under Rule 47.29, the Regional Assistant Secretary of the Division and Organisers of the Division are elected for terms of 4 years by the members of the Division in the relevant region.

This brief outline of the Rules of the Union illustrate the complicated nature of the Union and its structures.  There is an interlocking structure of committees and functions.  It is hard to imagine a more complicated set of rules.  An ordinary member of the Union would have great difficulty in comprehending, let alone understanding, the Rules.  This defeats the whole purpose of having rules of an organisation which should be in a form that can be understood by members of the organisation.

The Court does not attempt the difficult task of determining if there are branches within the Union.  The State Council plays an important part within the Union.  Subject to Federal Conference and Federal Council, it manages the financial affairs of members within the appropriate State.  It determines applications for membership and allocates members to Divisions.  The Divisions appear to be limited to dealing with the industrial affairs of members allocated to the Division within a State but not all members are attached to a Division.  Possibly, the Union does not have branches.  None are mentioned in the Rules.  Counsel did not draw attention to any of the Rules conferring powers on any Branch Committee of Management, compare Rule 14 mentioned earlier.

Some conclusions can be drawn.  The applicant is an officer of the Union.  He is a member of a Divisional Region Committee but may have powers with respect to a State Council.  On any view, he is a State Official and thus comes within rule 11.3.  He is an official of the Food and Confectionery Division but does not come within the class of a National Official of the Food and Confectionery Division.

In the heirachy of the committees of the Union, the National Conference is the highest and the Regional Council of a Division is one of the lowest.

A number of internal inconsistencies arise in construing Rule 11.  The heading is misleading since it refers to “removal of National Officials and State Representatives on National Council”.  Nevertheless Rule 11.3 is headed “State Action” and applies with respect to “any State Official”.  Rule 11.1 has its own difficulties.  According to the syntax, the relevant provisions confer a power on the National Conference to decide that certain officials have been guilty of an offence described in the rule.  The officials are described as follows:-

“1.      A National Official, or

2.      Any Official of the Union, or

3.Any Official of the Technical and Supervisory Division of the Union, or

4.      Any Official of the Vehicle Division of the Union, or

5.      Any Official of the Food and Confectionery Division of the Union, or

6.      Any Official of the Printing Division of the Union.”

Rule 11 appears to have been made to ensure the Rules of the Union were in conformity with s 195(1)(b)(iii) and (c) of the Act. Normally, an officer of an organisation elected to an office in the organisation is entitled to hold the office for the whole of the term for which the member had been elected. A committee should not have power to remove any such officer from office. Such a power could be abused. At the same time, however, the conduct of the officer could justify removal from office. Section 195(1)(b)(iii) provides, in substance, that the rules of an organisation shall provide for the removal of holders of offices in the organisation and its branches. An unlimited power to remove, however, could well offend s 196, especially s 196(c) of the Act by imposing on members of the organisation conditions that having regard to the objects of the Act and the purposes of the registration of organisations, were oppressive, unreasonable or unjust.

One limitation on the power to remove holders of offices from office is expressed in s 195(1)(c). This provision provides, in substance, that the rules of an organisation may provide, in the sense of permit, for the removal from office of persons elected to an office in the organisation only (emphasis added) where the person has been found guilty, under the rules of the organisation, of:-

“(i)     misappropriation of the funds of the organisation;

(ii)     a substantial breach of the rules of the organisation; or

(iii)    gross misbehaviour or gross neglect of duty;

or has ceased, under the rules of the organisation, to be eligible to hold the office;”

It is noted that s 195(1)(c) makes no reference to a branch of an organisation.

In the Rules of the Union, the limitation on the exercise of the power to remove elected officers of the Union appear to be limited in conformity with the provisions of s 195(1)(c) of the Act but no final view is expressed on this matter. In other words Rule 11 contains the prescribed limitation on the exercise of the power required to be in the rules of an organisation by s 195(1)(b)(iii).

On one view, the words “National Official” in Rule 11.1 should be construed to mean any officer elected to hold office on the National Conference or National Council, even though members of National Council are automatically members of the National Conference.  On this view it is appropriate that the National Conference should have the power to remove members elected to an office on National Conference.

The officials referred to in Rule 11.1 above, namely “Officials of the Union”, of necessity, would include National Officials.  In Rule 11.1, the term “Official” would include all members elected to an office under the Rules of the Union. This would include State Officials whether to a National body or not.  No distinction is made in the Rules between the organisation and a branch.  In Rule 11.1, the word “Officials” must apply to the officials of the Divisions as well as all other officials.  In all the circumstances, it is difficult to understand why the Divisional officials are mentioned.

In my opinion, under Rule 11.1 the National Conference has the power, subject to the limitation contained in Rule 11.1, to remove any member elected to an office under the Rules of the Union.  Whether the National Conference (or the National Council under Rule 11.2) should exercise that power with respect to all officials, is another question.

The power conferred by Rule 11.3 is not as wide as the power conferred by Rule 11.1.  Rule 11.3 is expressed in a short-hand form and contains an adaptation of Rule 11.1 but subject to the same limitation.  A State Conference or a State Council is empowered to exercise the power of removal with respect to a limited group of officials.  The power can be exercised only with respect to a State Official, a Delegate to State Conference or Delegate to State Council.  Here, there is much to be said for the view that the applicant is a State Official within the meaning of the words in Rule 23.

The question then is are the provisions of Rule 11.1 and Rule 11.3 mutually exclusive.  In my opinion they are not.  First, in my opinion Rule 11.1 applies with respect to National Officials as those words are used with respect to the classes of official in Rule 11.1.  In this sense, National Officials include officials of the Food and Confectionery Division who have been elected to National Conference or National Council.  Counsel for the applicant did not assert that the applicant was a National Official in this sense.  This provision is logical since the National bodies should be the body to determine whether any of its members are guilty of the offences specified and thus should be removed from office.

It would be difficult to give any meaning to Rule 11.3 if the word “National” did not qualify the meaning to be given to the meaning of the word “officials” in that sub-rule.  If this did not follow, the National Conference has power to find any official of the Union guilty of the specified offences.

In my opinion, for similar reasons Rule 11.3 applies with respect to “State Officials” including delegates to State Conference or delegates to State Council.  These latter groups include persons elected by Divisions.  Here it is appropriate that a State Conference has this power with respect to State Officials.  On the proper construction of Rule 23, Rule 24 and Rule 47, the applicant is a State Official within the meaning of Rule 11.3.

If any official comes within Rule 11.1 and Rule 11.3 there appears to be no logical reason why the two sub-rules should be construed as being mutually exclusive.  The only basis for that conclusion is where, under separate elections, the one person is elected to two separate offices.  Here, because of the interlocking nature of the structures of the Union, an offence with respect to a State Official could well justify a removal from office with respect to National Office.

Finally, there is a right of appeal to National Conference.

The Court concludes that Rule 11.1 and Rule 11.3 are not mutually exclusive.

In the result, the question should be answered in the affirmative.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop

Associate:

Dated:             21 November 1997

Counsel for the Applicant:	Mr R M Niall
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr S Howells
Solicitor for the Respondent:	Holding Redlich
Date of Hearing:	20 October 1997
Date of Judgment:	21 November 1997