Nucifora, Alexander John v Mapstone, David John Garland

[1983] FCA 317

Re: ALEXANDER JOHN NUCIFORA, GORDON McPHERSON, DAVID LEWIS, GRAHAM TREACY,
PAUL GRIFFITHS, PATRICK JAMES BROPHY, TADEUSZ MARIAN KOWALSKI AND VINCENT
McKENNA, JOHN PETER MAYNES, JOAN RIORDAN, TERENCE WILLIAM SULLIVAN, RICHARD
JOHN WASSON, VINCENT HIGGINS, DOUGLAS FRY, JOHN DANIEL SMITH, MAXWELL MULLER,
LESLIE THOMAS
HAUFF AND JOHN DUNCAN CAMERON
And: DAVID JOHN GARLAND MAPSTONE, BERNADETTE ANNE CALLAGHAN, GABRIELLE MARY
CRAWFORD, CHRISTOPHER WOODS AND DIANNE MARGARET LINNANE
Q. Nos. 4 and 5 of 1983
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.
Lockhart J.
Kirby J.

CATCHWORDS

Industrial law - Conciliation and Arbitration - construction of rules - Federated Clerks Union of Australia - Central and Southern Queensland Branch - termination of employment of Branch Staff by Branch Council - duties of secretary/organisers and Branch organisers - appeal by dismissed employees to Federal Executive - power of Federal Executive to hear and determine appeals - right of member to appeal to Federal Executive from decision of Branch Council adversely affecting him - appeals only within disciplinary structure - right of appeal conferred on member penalized as a result of a charge being sustained.

Conciliation and Arbitration Act 1904 (Cth.) s.141

HEARING

BRISBANE

#DATE 4:11:1983

ORDER

THE COURT ORDERS THAT the appeal be dismissed.

JUDGE1

The Federated Clerks Union of Australia, "the Union", is an organization under the Conciliation and Arbitration Act 1904, "the Act". Under the rules of the Union, "the Fed. Rules", each member of the Union must be attached to a branch of the Union. There are nine branches of the Union. All branches must conform to the Fed. Rules. The Federated Clerks Union of Australia (Central and Southern Queensland Branch) Union of Employees, "the C. & S.Q. Branch", is a branch of the Union. Pursuant to powers conferred by the Fed. Rules, the C. & S.Q. Branch has made rules, "the Branch Rules", for its own internal management. Under Branch Rule 20(a) the supreme control and management of the C. & S.Q. Branch, in the Branch Rules sometimes referred to as "the Union", is vested in a Branch Council, the members of which are elected triennially during the month of November. The triennial elections were held in November 1982, and as a result some of the sitting members of the Branch Council were defeated and replaced by new members. Between meetings of the Branch Council, the control of the C. & S.Q. Branch is vested in the Branch Executive, which consists of the four Branch officers and five other members elected by and from the members of the Branch Council.

Branch Rule 32 empowers the Branch to employ and dismiss employees. The rule is set out:

"32. EMPLOYMENT OF BRANCH STAFF

The Branch Council may make such additions or reductions to Branch Staff as it considers necessary and shall have authority to suspend or dismiss from office any employee. Branch Executive shall have power to make such temporary appointments to staff vacancies as is considered necessary subject to confirmation by Branch Council or to suspend any Officer or employee of the Branch at any time providing that such Officer or employee shall have the right of appeal to Branch Council."

Branch Rule 48 is set out:

"48. SALARIES OF EMPLOYEES The salaries of officials and employees of the Union shall be determined by Branch Council from time to time. Branch Council or Branch Executive shall have power to engage employees for duties other than those provided for in Rules 32 and 34 and may determine such engagement, but such determination shall be on a weekly basis."

Difficulties arise in the construction of this rule, but counsel for the parties before the Court agreed that for present purposes the relevant rule is Branch Rule 32.

Many years ago, in the exercise of powers conferred by Branch Rule 32, the Branch Council had appointed a number of persons as employees. Among those so employed were five Organisers, two Secretary/Organisers, two Industrial Officers, and one Accountant. None of those persons was a person elected to an office in the Branch and thus none had the protection of the rules of the Branch making provision for the matters referred to in paragraph 133(1)(f) of the Act. At the same time it should be noted that if those persons had been elected to hold office as organizers, as happens in many organizations, those persons could not hold that office for a period exceeding four years without being re-elected; see paragraph 133(1) (db) of the Act.

On 11 February 1983, by resolution carried by postal vote in accordance with the Branch Rules, the Branch Council, pursuant to the powers conferred by Branch Rule 32, terminated the services of each of those ten employees already mentioned. Thereafter, the Branch Council appointed other persons to perform the duties previously performed by the ten persons dismissed from employment.

Early in the month of March 1983, eight of the persons dismissed by the Branch Council and acting pursuant to Fed. Rule 27(9), appealed to the Federal Executive of the Union. The appeals were in writing and the grounds relied on are illustrated by the following extract from one of the appeals:

"5. The purported decision to dismiss me was not made under the rules or conformably therewith.

6. In particular and without limiting the generality of the foregoing, the purported dismissal was not effected by any person or body having authority under the rules or conformably therewith, to dismiss an employee or by any person or body acting in accordance with procedures laid down in the rules.

7. My purported dismissal was not effected for any reason for which under the rules or conformably therewith, an employee may be dismissed.

8. The circumstances of the purported dismissal were such as to deny me natural justice to which I was entitled having regard to the position held, my duties and the gravity of the decision made.

9. The purported decision to dismiss me was not made on any proper consideration of matters relevant to that decision.

10. I hereby appeal to Federal Executive against the purported decision of the Central and Southern Queensland Branch and request a hearing by Federal Executive of the said appeal as a matter of urgency.

11. I desire this document to also be considered by Federal Executive as a formal complaint that the rules of the Union or of the Branch have not bona fide been observed and enforced by the Branch.

ADDITIONAL FACTS RELIED UPON

12. In addition to what has been said above I say that:

(a) no bona fide grounds existed for my dismissal nor has the contrary at any time been suggested by or on behalf of the Central and Southern Queensland Branch;

(b) some of those purportedly dismissing me are not empowered to exercise such powers as the Branch has to engage or dismiss employees;

(c) the question of my dismissal is in the circumstances one properly for determination by Federal Executive and/or a ballot of members of a Branch as provided for in the rules;

(d) my purported dismissal occurred in conjunction with the dismissal of some nine (approximately) other employees in like case from which circumstance the lack of bona fides of each purported dismissal, the consideration given to irrelevant considerations and the failure to consider each purported decision separately and properly is a reasonable inference in the absence of any satisfactory explanation."

The Federal Executive of the Union proposed to hear and determine the appeals. Pending the hearing and determination of the appeals, the Federal Executive employed those eight persons, a number of whom were employed as Branch Organisers, to do work similar to that being done by the persons employed by the C. & S.Q. Branch and has paid those eight persons their wages and, pursuant to Fed. Rule 15(1) is claiming that the C. & S.Q. Branch pay to the Union the amount of the wages so paid to those eight persons.

A number of the members of the C. & S.Q. Branch Council, of necessity being members of the Union, made application under s.141 of the Act to the Federal Court seeking orders that the respondents to the application be directed to perform and observe the rules of the Union. In those proceedings, the first group of respondents comprised members of the Federal Executive of the Union, but with respect to two of them, namely Riordan and Muller, it was alleged that they wrongly held themselves out as being members of the Federal Executive. Presumably that action was based on the fact that members of Federal Executive had to be persons who were elected by and from the members of Federal Council and that those two were not members of Federal Council since they had been defeated in the election for Federal Councillors from the C. & S.Q. Branch at the November 1982 elections. Nothing in these reasons is to be taken as expressing any view on that contention. In those proceedings, the second group of respondents comprised eight of the persons who had been dismissed as employees of the C. & S.Q. Branch and who had been engaged by the Federal Executive to perform duties of Branch Organisers in the C. & S.Q. Branch pending the hearing and determination of their appeals to the Federal Executive. In those proceedings the Union was named as a respondent, but since no order was sought under sub-section 141(8A) of the Act, it is difficult to see why.

On 6 June 1983, the Federal Court constituted by a single Judge, held that under the rules of the Union, including the Fed. Rules and the Branch Rules, the persons who had been dismissed had no right to appeal to the Federal Executive and made orders under sub-section 141(1G) of the Act directing the respondents, other than the Union, to terminate the appeals, to terminate the employment of the second group of respondents, and to treat as null and void the demand by the Federal Executive for the payment of monies from the C. & S.Q. Branch as reimbursement of the wages paid to the eight former employees who were appealing to the Federal Executive.

In appeal Q. No. 4 of 1983, the eight former employees of the C. & S.Q. Branch have appealed from that order of the Federal Court. In appeal Q. No. 5 of 1983, the members of the Federal Executive have appealed from that order of the Court. The two appeals were heard together, although the two groups of appellants were represented by different counsel.

At this stage, it is of importance to state what issues are not raised by the appeals. As has been stated, the essential issue raised is whether under the rules of the Union, including the Fed. Rules and the Branch Rules, the former employees of the C. & S.Q. Branch have a right of appeal to the Federal Executive against the decision of the C. & S.Q. Branch Council constituted by the resolution to terminate their employment. Implicit in that issue is the issue whether, under the rules of the Union, the Federal Executive has the power to hear and determine those appeals. If the answer to that essential issue is in the affirmative, the subsidiary issues arise, namely whether the Federal Executive has the power to employ those persons pending the hearing and determination of the appeals, and if so, whether it has the power to recoup from the C. & S.Q. Branch wages paid to those persons. The issue of whether the employment was terminated lawfully by the C. & S.Q. Branch is not raised on this appeal. The question of what remedies, if any, the dismissed employees have, either by statute or by common law, against the Union or the C. & S.Q. Branch, is not raised on this appeal even though counsel for the appellants before this Court sought to rely upon the consequences of the dismissal in support of contentions made in support of the subsidiary issues. On the appeal before this Court, the answers to the issues raised depend upon the proper construction of the rules of the Union, including the Fed. Rules and the Branch Rules.

Reference has been made already to the fact that none of the dismissed employees were officers of the Union within the meaning of paragraph 133(1)(f) of the Act. Nevertheless, the duties of Secretary/Organisers and of Branch Organisers are important and onerous. The Branch Rules specifying those duties should be set out in full:

"46. SECRETARY/ORGANISERS

The Secretary/Organiser appointed to any Sub-branch or District shall:

(i) Keep a register of all members employed in such District.

(ii) Enrol new members and issue them with official or interim receipts, and be responsible for all monies collected from them.

(iii) Deposit all monies collected by him in the Bank, as provided for in Rule 41, as soon as practicable after receiving such moneys, and not later than seven (7) days after receipt thereof.

(iv) Attend to all correspondence dealing with all matters affecting his Sub-branch or District.

(v) Record all monies received and expended by him on behalf of the Union, and shall forward monthly a statement of such receipts and expenditure, supported where necessary by vouchers, and be recouped on a Petty Cash imprest system.

(vi) Be responsible for the organising of the District to which he has been appointed, and carry out the duties of organisers, as set out in Rule 47(a)(iii), (iv), (v), (vii), (viii) and 47(c) hereof.

(vii) Attend all meetings of Branch Council, when possible, but shall not exercise a vote thereat.

(viii) Attend all meetings of the Sub-branch, in the area in which he resides, and he shall be entitled to vote at such meetings.

(ix) Have the right to attend any meeting of any Sub-branches in the District, or Districts, to which he has been appointed, but shall exercise a vote only at meetings of the Sub-branch as described in clause (viii) hereof.

(x) Report, in writing, to the Branch Secretary on any disputes, or on matters requiring the attention of the Branch Secretary.

(xi) Be responsible for any property held by him on behalf of the Union, and shall return such property immediately when called upon by Branch Council or Branch Executive to do so.

(xii) When organising Country centres away from his home town, be entitled to expenses as set out in Rule 42 of these Rules, or other expenses as determined from time to time by Branch Council or Branch Executive.

47. BRANCH ORGANISERS

(a) Branch Organisers shall:

(i) Endeavour to increase the membership of the Union.

(ii) Enrol new members and accept entrance fees and contributions tendered by them.

(iii) Inspect Time and wages Books of employers to ascertain that all correct monies are being paid to employees, as provided for in the various Awards.

(iv) See that the office accommodation of employees is in conformity with the appropriate Act, or Acts.

(v) Investigate and determine any complaints by members, and take the required action in any disputes between members and their employers.

(vi) Be responsible for general organising work.

(vii) Submit to each meeting of Branch Council a report, in writing, of the work performed by them.

(viii) Investigate any matter as required by the Branch Secretary, and submit a report in writing thereon.

(b) Branch Organisers shall whenever possible attend all meetings of Branch Council and Branch Executive, and when required Sub-committees thereof, and Section meetings. They shall also have the right to attend any meetings of a Sub-branch or Section, but shall not exercise a vote at any such meetings other than at the General and Commercial Clerks Section meetings, to which Section, for membership purposes, they are deemed to be attached.

(c) Branch Organisers shall, when required, assist in the compilation of material required for industrial cases, and shall when authorised, represent the Union's hearings before Industrial Tribunals or Appeal Boards."

It is noted that the C. & S.Q. Branch Council consists of four named officers "together with 17 District Representatives". For the purposes of management, the Branch is divided into districts; generally see Branch Rule 20. Under Branch Rule 52, the Branch Council has power to form sub-branches and sections. Under Branch Rule 47, Branch Organisers have the right to attend and speak at specified meetings but have the right to vote only at "the General and Commercial Clerks Sections meetings, to which Section, for membership purposes, they are deemed to be attached"; see sub-rule 47(b). A corresponding provision appears in Branch Rule 46(viii) and (ix). Counsel for the appellants in both appeals contended that those provisions indicated that Secretary/Organisers and Branch Organisers respectively had to be members of the Union in order to be engaged as employees. That contention is rejected. In practice, persons so appointed may be members of the Union, but membership is not, in law, a condition precedent to appointment. The rules do not provide expressly that they be members. The relevant provision in Branch Rules 46 and 47 is an enabling provision to ensure that if a Secretary/Organiser or a Branch Organiser is a member of a Union, provision is made to determine to which sub-branch or section that member is deemed to be attached.

Further, it may be a nice question whether persons engaged to perform the duties specified in Branch Rules 46 or 47 come within the conditions of eligibility for membership of the Union. To be eligible to become a member of the Union, a person must be engaged in a clerical capacity or engaged in one of the specified callings referred to in Fed. Rule 2 and Branch Rule 2. See also Keogh v. Federated Clerks' Union of Australia (1979) L.B. Co's Indus. Arb. Serv., Current Review 589, particularly per J.B. Sweeney J. at pp.592-3, a passage which is not contained in the report of that case appearing in 40 F.L.R. 445.

As has been stated earlier, the Fed. Rules empower branches to make rules for their own internal management. Fed. Rule 12(2)(e) is set out:

"12. BRANCHES
. . .
(2) (e) Branch Rules may provide for the imposition of fines upon and/or the suspension or expulsion of members of the Branch."

Branch Rules confer a power for that purpose. Branch Rule 10 is headed "BREACH OF RULES AND DISCIPLINARY POWERS". Under sub-rule (a) the Federal Executive or Branch Council is empowered to "impose a fine not exceeding $20 and/or to suspend or expel from membership any member of the Union in accordance with the provisions of these Rules, who . . . ". There are then listed fourteen types of offences. Sub-rules (b), (c), (d) and (g) are procedural provisions commonly found in relation to offences requiring notice of charge to the person alleged to have committed the offences and related matters. Sub-rules (e) and (f) are definitive of the nature of an order of suspension and the effect of dismissal respectively. Branch Rule 12 is headed "APPEALS". Sub-rule (a) confers rights of appeal within the branch structures. Sub-rule (b) confers a right of appeal upon members fined, suspended or expelled. That sub-rule is set out:

"(b) Members fined, suspended or expelled by Branch Council shall have the right of appeal to Federal Executive and/or Federal Council. Such appeal shall be in writing addressed to the Federal Secretary and shall be made within three months of the decision appealed against."

The right of appeal is limited to a member found guilty of an offence and fined, suspended or expelled; cf. penalties referred to in Fed. Rule 12(2)(e) and Branch Rule 10(a). It is to be expected that a corresponding power will be found in the Fed. Rules conferring a power on Federal Council and/or Federal Executive to hear and determine appeals by members upon whom a penalty has been imposed by Branch Rule 10(a).

Under Fed. Rule 16, the supreme control of the Union is vested in the Federal Council which comprises four named Federal Officers and Federal Councillors elected by the nine branches, the number to be elected by each branch varying in relation to the number of members attached to each branch. Federal Council meets biennially in November, but special meetings may be held between biennial meetings. The functions of Federal Council are set out in Fed. Rule 17. Sub-rules (1) and (2) are set out:

"17. FUNCTIONS OF FEDERAL COUNCIL

(1) The functions of the Federal Council shall be to administer the Rules of the Union for the general benefit of its members, to carry out the objects of the Union, and to consider and transact all business submitted by the Federal Executive or Branches or otherwise; and it shall have all such powers and authorities as are necessary or convenient in this regard.

(2) The Federal Council may determine any question arising under these Rules and may exercise all or any of the powers of the Federal Executive. Its decisions shall be final and binding."

Fed. Rule 27 is headed "CONSTITUTION AND DUTIES OF FEDERAL EXECUTIVE". It contains twelve sub-rules and there are a number of paragraphs to some of those sub-rules. Sub-rule (1) constitutes the Federal Executive which consists of the four Federal Officers and the nine Federal Vice-Presidents who are elected by and from the members of Federal Council, one from each branch. Fed. Rule 28 makes provision for Federal Executive Committees which are ad hoc committees. Under Fed. Rule 28(2) a Federal Executive Committee has all the powers of the Federal Executive. Under Fed. Rule 27(2) the Federal Executive is the committee of management of the Union.

Sub-rule (3) of Fed. Rule 27 confers general powers upon the Federal Executive. The opening paragraph of the sub-rule is set out:

"(3) The Federal Executive shall, subject to the review of its actions by the Federal Council, have the care, control, custody, superintendence, management and administration in all respects of the affairs, business, funds and property of the Union, and without limiting the generality of the foregoing, it may . . . "

There are then set out detailed methods by which the Federal Executive is enabled to exercise the powers conferred in the opening paragraph. It is sufficient to say that these provisions relate to actions that can be taken against officers of the Union, including councillors or committee members of the branches involving, where necessary, the removal of those persons from office, and the conducting of elections to replace the persons so removed.

Sub-rules (4), (5), (6), (7), (8), (10) and (11) are procedural in nature. Sub-rule 9 confers a separate and distinct power upon the Federal Executive, but before referring in detail to that sub-rule, reference should be made to Fed. Rule 31. That rule is headed "DISCIPLINE OF MEMBERS", and sub-rule (1) empowers the Federal Executive, and under the Fed. Rules that includes the Federal Council or a Federal Executive Committee, to hear and determine charges brought under Fed. Rule 31. Any member may charge another member with any of the thirteen offences listed. Sub-rules (2), (3), (4) and (6) are procedural. Sub-rule (5) empowers the appropriate body to fine, reprimand, caution, suspend or dismiss a member found guilty of an offence. Sub-rule (6) confers a right on a member penalized under sub-rule (5) to appeal to Federal Council as provided by Fed. Rule 27(9).

Fed. Rule 27(9) is of crucial importance. It is set out in full:

"(9) (a) Any member may appeal to the Federal Executive against any decision of his Branch adversely affecting him.

(b) Any member or Branch may appeal to the next meeting of Federal Council against any decision of Federal Executive or the Federal Executive Committee adversely affecting him or it.

(c) An appeal shall lie against the dismissal of a charge as well as against the upholding thereof, and either party may appeal against the penalty imposed.

(d) Appeals shall be in writing addressed to the Federal Secretary and shall be made within three months of the decision appealed against. A copy of any such appeal shall be forwarded to the member or Branch or other persons directly interested in the appeal and an acknowledgement of receipt of the appeal shall be sent to the appellant. The member or Branch or persons directly interested in the appeal, other than the appellant, may reply to the appeal setting out submissions in writing.

(e) Unless the appellant, and the member and other persons, if any, and a representative of the Branch, directly interested in the appeal, are present in person at the meeting of Federal Executive or Federal Council (whichever is hearing the appeal) no fresh matter shall be raised on the hearing of the appeal except by leave of the Federal Executive or Federal Council (as the case may be) and after the member and other persons if any and Branch have been given a reasonable opportunity of replying to the new matter.

(f) If all interested parties so agree in order to determine an appeal to Federal Executive prior to the next meeting of Federal Executive, an inquiry may be made by a meeting of Federal Executive Committee at which at least five members of Federal Executive are present. The inquiry shall proceed on the same lines as a hearing of the appeal and a full record of the proceedings shall be sent to all members of Federal Executive together with the motion: that the appeal be upheld. A postal vote shall be taken on this motion in accordance with Rule 30 and the appeal determined in accordance with this postal vote.

(g) In determining an appeal a meeting of the Federal Executive or Federal Council (as the case may be) may make such decision as in its opinion should have been made in the first place and may dismiss the appeal or uphold the appeal and/or vary the terms of any decision or order made by a lower body on the matter of the appeal."

Counsel for the appellants contended that paragraph (a) of sub-rule 27(9) should be construed in a broad sense as meaning that any member adversely affected by a decision on any matter whatsoever, had a right to appeal against that decision to Federal Executive and that Federal Executive had the power to hear and determine that appeal. Counsel for the respondents contended that paragraph (a) of sub-rule 27(9) was limited to appeals in disciplinary matters under branch rules similar to Branch Rules 10 and 12, as well as in disciplinary matters under Fed. Rule 31. It is to be remembered that under Fed. Rule 17(2) Federal Council has the same powers as the Federal Executive.

The contentions on behalf of the respondents are preferred. Sub-rule (9) of Fed. Rule 27 is framed in a form consistent with appeals within a disciplinary structure under which domestic tribunals are empowered to impose penalties upon members coming within the jurisdiction of the particular tribunal. It assumes that there are parties to a matter which has been tried before a domestic tribunal. Branch Rule 10 and Fed. Rule 31 constitute the C. & S.Q. Branch Council and Federal Executive domestic tribunals for the purpose of hearing and determining charges laid against members. Normally the person making the charge should not be a member of the tribunal hearing and determining the charge; see for example Cains v. Jenkins (1979) 46 F.L.R. 278, and on appeal (1979) 42 F.L.R. 188. Each of those rules confers a right to appeal on a member penalized as a result of such a charge being sustained. Paragraph (c) of Fed. Rule 27(9) confers a right of appeal on the person making the charge when the charge is not sustained. Paragraphs (d), (e) and (f) are consistent with the rights of the parties to the appeal to make representations to the appeal body. Paragraph (b) would enable appeals by a branch against orders made against a branch pursuant to Fed. Rule 27(3). Normally, in proceedings before the Federal Executive, it would be expected that a charge would have been laid and prosecuted against a branch. Paragraphs (b) and (c) allow appeals by either party to the proceedings before the Federal Executive.

In its context, the construction of paragraph (a) of Fed. Rule 27(9) is clear. The right to appeal is conferred upon members; see references to members in Branch Rule 10 and Fed. Rule 31. The appeal is against any decision "adversely affecting him", the same expression as is contained in paragraph (b). The instance of the right conferred by paragraph (c) makes it clear that the words "adversely affecting him", as used in paragraphs (a) and (b), are limited to cases where a member has been penalized pursuant to the powers conferred under Branch Rule 10 or Fed. Rule 31. Those expressions are to be contrasted with the more limited expressions conferring the right of appeal in Branch Rule 10 and Fed. Rule 31. The powers conferred on the Federal Executive by paragraph (g) are consistent with Fed. Rule 27(9) forming part of an appeal structure relating to disciplinary matters within the organization. It follows that a wide construction of paragraph (a) to go beyond matters of discipline is not to be accepted.

Further, on the facts of the present case, none of the persons dismissed by the C. & S.Q. Branch Council were charged with offences under Branch Rule 10. Each was affected in his capacity as an employee and not as a member.

The contentions made on behalf of the appellants assert that the right of appeal should extend to any member against any decision of his branch adversely affecting him. The only limitation on the right of appeal, so it was said, is the meaning to be given to the expression "adversely affecting him". It was contended that the right extended to cover any decision on any matter. The effect of that contention would be that the Federal Executive, in theory, could exercise the powers conferred upon the Branch Council by the rules of the Branch.

A branch cannot be an appellant or a respondent in an appeal under paragraphs (a) or (c) of Fed. Rule 27(9). The procedures referred to in paragraphs (d), (e) and (f) are framed to apply to include appeals by branches. The procedures prescribed by paragraphs (d), (e) and (f) would not apply if the Branch Council was a party to the appeal. The procedures are based on an adversary system.

Further, the provisions of Fed. Rule 27(3) would, in most cases, be rendered nugatory if, instead of the Federal Executive having to comply with the strict requirements of that sub-rule, it could overrule decisions being attacked by adopting the procedures provided in sub-rule (i).

Most importantly, however, the contentions of the appellants are contrary to the concept of organizations and the provisions of the Act. Under the Act, organizations are not autocratic bodies in which committees can act dictatorially. Under the Act, the affairs of organizations are regulated by rules which must comply with the requirements of the Act and the Conciliation and Arbitration Regulations; see sub-section 132(2) of the Act and Reg.115(1)(d) and (2). Under Reg. 115(1)(d)(i) the rules must make provision for the election of officers and committees of management of organizations and their branches. Under sections 133 and 133AA of the Act the rules must make provision for the many detailed provisions therein specified. For present purposes particular reference is made to Reg. 115(1)(d)(v) which requires that the rules of an organization must make provision for the control of committees of the organization and its branches by the members of the organization and the branches respectively. That requirement is the very antithesis of dictatorial control by committees. The Federal Executive and the Branch Council are committees of the Union and the C. & S.Q. Branch respectively. The control of those committees by the members of the Union and the C. & S.Q. Branch respectively is effected in part by the periodic election of members to those committees. Within organizations, the control of committees by the members of the organization, or its branches respectively extends beyond periodic elections; generally see Boland v. Munro (1980) 48 F.L.R. 66 per Evatt and Northrop JJ. at pp.77-81.

In the present appeals, no issue has been raised concerning whether the rules of the Union or of the C. & S.Q. Branch fail to make a provision required by a provision of the regulations, namely Reg. 115(1)(d)(v); see sub-section 140(1) of the Act and the second limb of sub-section 140(5D) and sub-section 140(7).

The Branch Rules do not contain provisions for the holding of meetings of members of the Branch at which members can alter decisions made by the C. & S.Q. Branch Council. Branch Rule 28 contains provisions by which members of the Branch Council may be removed, but those procedures may be impossible to apply. The Branch Rules make no provision for a plebiscite of members of the Branch. Under Fed. Rule 32 a plebiscite or ballot of members of the Branch may be held where directed by the Federal Council or Federal Executive, or upon petition signed by 10% of the members entitled to vote in the ballot. The ballot may be limited to one branch. The ballot is binding upon all members of the Branch provided at least one third of the persons entitled to vote have voted in the ballot. This is the method provided for in the rules and in compliance with the Act and Regulations by which a decision of a Branch Council may be reviewed by a vote of the members of the Branch. I fact, as appears by paragraph 12(c) of the appeal letter set out above, this course was suggested as being appropriate for a proper determination on the question of the dismissals. That is a method by which the rules of the Union provide control in the members. Appeals in disciplinary matters come within a separate and distinct set of procedures and are dealt with in Fed. Rule 27(9).

A rule of an organization which enabled a federal committee to overrule almost any decision of a branch committee could contravene sub-section 140(1) of the Act; see Allen v. Townsend (1977) 31 F.L.R. 431 per Smithers J. at pp.458-9 and Evatt and Northrop JJ. at p.471. In the present case, the acceptance of the contentions by the appellants could lead to that result. The ultimate power in any organization or branch must reside eventually in the members of the organization or of the branch respectively.

It follows, therefore, that the persons dismissed from their employment by the C. & S.Q. Branch have no right under Fed. Rule 27(9) to appeal to the Federal Executive. Further, the Federal Executive has no power to hear and determine those appeals.

In view of this conclusion on the essential issue, it is not necessary, nor is it desirable, to express any opinion on the subsidiary issues raised by the appeals.

During the hearing of the appeals a number of submissions were made directed to paragraph 140(1)(d) and section 133A of the Act and the question of the autonomy of a branch. The questions raised by those submissions do not arise for decision in this case and the submissions made are not helpful in deciding the appeal. In these circumstances it is neither necessary nor desirable that an opinion should be expressed on those submissions.

Each appeal should be dismissed.

JUDGE2

These are two appeals, heard together by consent, from a judgment of a single Judge of this Court (Fitzgerald J.). The appeals raise questions of construction of the rules of the Federated Clerks' Union of Australia ("the Union") and the rules of one of its branches, the Federated Clerks' Union of Australia Central and Southern Queensland Branch ("the Branch").

On 11 February 1983 the Council of the Branch terminated the employment of each of the appellants in appeal No. Q4 of 1983 (to whom I shall refer as "the employees"), all of whom had been employed by the Branch, two as Industrial Officers, one as Secretary/Organizer and five as Branch organizers. Each of the employees was dismissed without notice and no reason was given for any of the dismissals. The employees had served the Branch in different capacities for varying periods, one as long as fourteen years. The Branch replaced the employees with other staff. The employees appealed to the Federal Executive of the Union purportedly pursuant to sub-rule 27(9) of the Union Rules. The appeals are still pending.

On 16 March 1983 the Federal Executive of the Union met and passed resolutions to the following effect:-

(i) The Union itself was to offer employment to the employees for a period lasting from acceptance of the offer until the determination of the appeals by the Federal Executive at the same rate of salary enjoyed by the employees immediately prior to their dismissal by the Branch. The duties of the employees were to be determined by the Federal Secretary in consultation with each of the employees.

(ii) An amount equivalent to the "cost to the Union of the salaries and associated expenses of employment" of the employees was to be paid to the Union by the Branch.

The Union demanded of the Branch that it make those payments, but the Branch rejected the demand and disputed the Union's power to make it. The Union then offered the services of the employees to the Branch, but that offer was rejected. The Union thereupon established a "federal annexe" at premises separate from those of the Branch. The employees operate from that annexe. The learned primary Judge said that it was not disputed that the employees had been engaged by the Union as, and are in fact performing the duties of, Branch organizers. The employees perform these functions under the direction and control of the Federal Secretary, not the Branch Council. The staff engaged by the Branch to fill the vacancies caused by the dismissal of the employees also perform the duties specified for Branch organizers but do so under the direction and control of the Branch Council. The primary Judge said that if the appeals of the employees to the Federal Executive against their dismissals are successful they will be reinstated and, if not, their employment by the Union will be terminated.

Four of the respondents to the appeals are officers of the Branch and one respondent is a member of the Branch Council. I shall refer to them collectively as "the respondents".

The respondents applied to this Court for orders pursuant to sub-s. 141(1G) of the Act. On 6 June 1983 the primary Judge made orders that the employees observe the Union Rules:-

(a) by terminating forthwith their purported appeals from their dismissal as Branch organizers by the Branch Council; and

(b) by terminating forthwith their employment with the Union to carry out the duties specified in rule 47 of the Branch Rules.

His Honour also ordered that members of the Federal Executive of the Union (who were respondents to the proceedings before the Court at first instance and who are the appellants in appeal No. Q5 of 1983) observe and perform the Branch Rules by treating as null and void

(a) the demand that the Branch pay to the Union the amount equivalent to the cost to the Union of the salaries and associated expenses of employment of the employees and

(b) the resolution of 16 March 1983 pursuant to which the demand was made.

The appellants appealed to this Court from those orders. I use the word "appellants" to encompass both the employees and members of the Federal Executive of the Union.

The questions involved in these appeals construction of the Union Rules and the Branch Rules. Neither set of rules is easy to construe. There is conflict or overlapping between each set of rules and between rules within each set. Their language is often unclear. To adopt too strict and literal an approach to the interpretation of either set of rules would lead to an absurd or impracticable result. It is necessary to approach the interpretation of both sets of rules sensibly and not too semantically.

The Union is an organisation incorporated under the Conciliation and Arbitration Act 1904 (Cth.) ("the Act"). Sub-Rule 12 (1) of the Union Rules provides that the Union shall consist of members throughout Australia and that there shall be certain branches of the Union including the Central and Southern Queensland Branch.

The first question to be considered is the correctness of the primary Judge's order that the employees observe the Union Rules by terminating forthwith their purported appeals from their dismissal as Branch organizers by the Branch Council. Paragraph 27(9)(a) of the Union Rules is critical to this question. It provides:-

"27(9)(a) Any member may appeal to the Federal Executive against any decision of his Branch adversely affecting him."

Other provisions of sub-rule 27(9) are relevant but may be stated in summary form. Any member or Branch may appeal to the Federal Council against any decision of the Federal Executive or the Federal Executive Committee adversely affecting him or it (para. 27(9)(b)). An appeal lies against the dismissal of a charge as well as against the upholding thereof, and either party may appeal against the penalty imposed (para. 27(9)(c)). Appeals shall be in writing addressed to the Federal Secretary and shall be made within three months of the decision the subject of the appeal (para. 27(3)(d)). In determining an appeal a meeting of the Federal Executive or Federal Council may make such decision as in its opinion should have been made in the first place and may dismiss the appeal or uphold it and vary the terms of any decision or order made by a lower body on the matter of the appeal (para. 27(3)(g)).

It was submitted by the respondents that para. 27(9)(a) must be read down as relating only to decisions adversely affecting a member in that capacity and that the decision of the Branch Council dismissing the employees did not affect them in their capacity as members but only in their capacity as employees. It is common ground that each of the employees was a member of the Union. Reliance was placed by the respondents upon the principle of company law that a company's articles of association do not constitute a contract between a company and a member in respect of rights and liabilities which he has in a capacity other than that of a member.

A similar submission was put to the primary Judge who rejected it in these terms:-

"Eligibility for membership of a Union is commonly related to the character of employment and, in the case of the Branch organizers, it seemed to be accepted that their entitlement to membership stemmed from their particular employment. It does not seem to me possible to differentiate with precision between the relationship of Branch organizers to the Union or Branch as employees and their relationship as members or to accept that the exercise of the power under the Rules to dismiss them did not adversely affect them in respect of an aspect of their Union membership."

I agree with those statements.

The language of para. 27(9)(a) is plain enough. I see no warrant for reading it down in the manner submitted by the respondents. Some reliance was placed upon the fact that it is members, not employees, who are given the right of appeal under the paragraph. But that is hardly surprising because the Union Rules are concerned essentially with the relation between the Union and its members and branches.

Then it was suggested that the paragraph should be confined to appeals by a member against decisions of his branch upholding a charge laid against him or a penalty imposed consequent upon the upholding of a charge. Support for this argument was sought from para. 27(9)(c) which provides that an appeal shall lie against the dismissal of a charge as well as against the upholding thereof and that either party may appeal against the penalty imposed. Paragraph 27(9)(c), like the paragraphs (a) and (b) which precede it, defines the subject matter of an appeal to the Federal Executive or the Federal Council, as the case may be. Paragraph (c) confers a right of appeal, not only in respect of decisions of branches, but also against decisions of the Federal Executive: See sub-rules 31(5) and (6). There may be some overlapping between paras. (a), (b) and (c), but I see no warrant whatever for reading down para. (a) to the circumstances specified in para. (c). I see nothing in the language of sub-rule 27(9) or of any other Union Rules or in the context in which para. 27(9)(a) appears to support the submission of the respondents.

It was then submitted by the respondents that to construe para. 27(9)(a) as conferring upon a member a right of appeal to the Federal Executive against a decision of his branch in his capacity as an employee would be to infringe the autonomy of the branch, to deny the branch the right to engage, dismiss and control its own employees. This submission was said to be supported by the Branch Rules and by para. 140(1)(d) of the Act. It was said that under the Branch Rules members may be disciplined by the Branch Executive or Branch Council (rule 10) and that appeals could be brought from decisions of the Executive to the Branch Council: Rules 10 and 12. The fact that sub-rule 12(b) expressly conferred upon a member who had been fined, suspended or expelled by the Branch Council the right of appeal to the Federal Executive or Federal Council meant that para. 27(9)(a) should be read down as mentioned earlier. Reference was made to Rule 20 which provides that the supreme control and management of the Branch shall be vested in the Branch Council. Rules 32 and 48 of the Branch Rules were pointed to as indicating that engagement and dismissal of branch staff and other employees of the Branch lies within the control of the relevant branch authority and not Federal Council or Federal Executive. I do not propose to refer to all the rules mentioned in argument although I have considered them all. It was said that the Branch Rules established a code in which branch officers were responsible to the Branch Executive and to Branch Council. It seems to me that ultimately the Branch Rules themselves do not derogate from the construction of para. 27(9)(a) that any member may appeal to the Federal Executive against any decision of his branch adversely affecting him whether the decision affects him in his capacity as member, officer or employee.

The Branch Rules provide for matters such as membership of the Union; breach of the Branch Rules; disciplinary powers of the Branch Executive or Branch Council; contributions by members to Union funds; the establishment, composition, powers and functions of the Branch Council and Branch Executive; Branch elections; Branch officers; Branch staff and property of the Union within the control of the Branch. But the Branch was established under the aegis of the Union. All Branches must conform to the Union Rules: sub-rule 12(1) of the Union Rules. Subject to both the Union Rules and the approval of the Federal Executive, a Branch shall have power to make rules from time to time for its own internal management: para 12(2)(a). All branch rules shall comply in all respects with the requirements of the Act and the Regulations made thereunder and with the Union Rules. If at any time the Federal Council or Federal Executive is of the opinion that the rules of any branch do not comply with the Act or Regulations or the Union Rules it may call on the branch to bring its rules into conformity with the Act or Regulations or the Union Rules within a specified time. If at the end of the time specified the branch rules do not in the opinion of the Federal Council or Federal Executive conform with the Act, Regulations or Union Rules, then the Federal Council or Federal Executive may make such alterations to the branch rules as will in its opinion bring them into conformity with the Act or Regulations: para. 12(2)(f). If a branch rule is inconsistent with any of the Union Rules the latter shall prevail and the branch rule shall to the extent of such inconsistency be void: sub-rule 12(3) where a branch is unable to validly make, rescind, alter or add to its rules by reason of its not having a validly elected, appointed or constituted person or body of persons empowered to make, rescind, alter or add to its rules then the Federal Executive or Federal Council may make, rescind, alter or add to the rules of such brach for the purpose of enabling the branch to have rules for its own internal management, to comply with the Union Rules or the requirements of the Act or Regulations or to enable it generally to function as a branch of the organisation: sub-rule 12(5).

The Union Rules, whilst recognising some measure of branch autonomy, nevertheless give paramount importance to the Union Rules themselves and in the final analysis to the powers of the Federal Executive and Federal Council. I see no inconsistency, relevant for present purposes, between the Branch Rules and the Union Rules. Of course, the Branch Council and the Branch Executive are bodies vested with high powers and charged with important responsibilities. But the vesting of power in the Branch Council to hear and determine appeals by members aggrieved by decisions of the Branch Executive (Branch Rule 12) is not inconsistent with the right of members to appeal from decisions of the Branch Council to the Federal Executive or Federal Council. Indeed, such right of appeal is expressly recognised by sub-rule 12(b) of the Branch Rules which entitles a member to appeal to the Federal Executive or Federal Council from a decision of the Branch Council fining, suspending or expelling him. To give a member of the Union a right of appeal to the Federal body from a decision of a branch which adversely affects him is entirely consonant with the division of powers that is spelt out in the Union Rules and the Branch Rules and lies harmoniously with the notion that some degree of self government, independence or autonomy lies in the Branch.

The word "autonomy" is easy enough to define. It means a large degree of self government or independence of others. But the definition poses rather than answers the question that arises in this case and generally in the field of industrial law. In any organisation or body politic where there is a division of power between its components the real difficulty is to determine where the boundaries of power lie between these components. The delphic utterance that a particular body is autonomous says little. The existence of a right of appeal from decisions of the Branch to the Federal Executive does not derogate from the independence of the Branch. Hierarchical structures are necessarily attended by checks and balances against absolute authority. The judicial system in this country provides a useful example. I reject the argument that para. 27(9)(a) of the Union Rules, if construed according to its plain and ordinary meaning, would unduly encroach on any autonomy of the Branch, whether gleaned from it the Branch Rules or otherwise.

I will deal with para. 140(1)(d) of the Act briefly. It provides:-

"140(1) The rules of an organisation -
. . .
(d) shall be such as to provide for the autonomy of a Branch in matters affecting members of the Branch only and matters concerning the participation of the Branch in any State industrial conciliation and arbitration system."

It was argued by the appellants that para 140(1)(d) had no operation in this case because of the absence of Queensland legislation permitting a system of registration of a federal organisation within Queensland which does not involve it being incorporated under the Industrial Conciliation and Arbitration Act 1961 (Qld.). The argument was founded on the assumption that the amendments to the Act (including para. 140(1)(d)) introduced by the Conciliation and Arbitration (Organizations) Act 1974 followed the recommendations of the "Report of the Committee of Inquiry on Co-ordinated Industrial Organisations" that States should amend their industrial legislation to permit the registration of federal organisations within the States which do not involve them being incorporated under State industrial legislation. It was submitted that para. 140(1)(d) should not be read distributively, so that, as there was no relevant Queensland legislation giving effect to the Committee's recommendations, the paragraph should be treated as inoperative. I do not find it necessary to consider whether para. 140(1)(d) is to be read in this way or as containing two separate limbs. I am content to assume for the purposes of this appeal that the paragraph may be construed distributively so that the question arises whether the Union Rules are such as to provide for the autonomy of the Branch in matters affecting members of the Branch only. Making this assumption, solely for the purposes of the appeal, I fail to see how para. 27(9)(a) of the Union Rules interferes with any autonomy of the Branch, whether it be in matters affecting members of the Branch only or otherwise. I need not repeat what I said earlier about this matter. In this respect I have the misfortune to differ from the primary Judge. It seems to me, however, that the notions of branch autonomy and a right of appeal from decisions of the Branch Council to the Federal Executive or Federal Council do not conflict. I would therefore allow the appeal on this first question.

I turn to the remaining questions, whether it has been established that the primary Judge erred in ordering that the appellants observe the Union Rules by terminating forthwith the employment of the employees to carry out the duties specified in Rule 47 of the Branch Rules and in ordering that those appellants who are members of the Federal Executive observe and perform the Union Rules by treating as null and void both the demand that the Branch pay to the Union an amount equivalent to the cost of the salaries and associated expenses of employment of the employees and the resolution of 16 March 1983 pursuant to which such demand was made.

The apellants submitted in effect that the right of appeal conferred by para. 27(9)(a) of the Union Rules would be rendered futile if the Federal Executive did not have power to pass and implement the first of the two resolutions the subject of this appeal passed on 16 March 1983. That resolution was in these terms:-

"That the Federal Secretary be authorised to offer employment to each of the ten members desirous of accepting the same at the respective salary paid to each immediately prior to 11 February 1983 up to a maximum payment of $380 per week, the terms of such employment to be from acceptance until the Union has heard and determined the appeals lodged, the duties in the service of the Union to be performed by each to be as determined by the Federal Secretary in consultation with the officers."

It was said that if the Federal Executive allowed the appeal it would be entitled to order, amongst other things, the reinstatement of the dismissed employees and that it would be ancillary to the exercise of that power for the Federal Executive to direct a State branch not to dismiss a member from his employment by the branch pending the determination of his appeal. As this power could only be exercised if the appeal was lodged before the dismissal of the employee it would be strange, so it was said, if the Federal Executive did not have power to itself re-engage an employee who had been dismissed, without notice, pending the determination of his appeal and did not have power to require the branch to remit sufficient funds to recoup the Federal Executive for the salaries of the employee concerned.

It is unnecessary to decide whether it is competent for the Federal Executive, when determining an appeal, to direct, in an appropriate case, reinstatement of an employee who has been dismissed by his branch. It is also unnecessary to decide whether the Federal Executive could direct a branch not to dismiss a member from its employ pending the determination of that member's appeal. Neither question directly arises in this appeal. But there is an essential difference between the power of the Federal Executive to hear and determine appeals of employees against their dismissal by branches and a power to engage them itself to perform the very tasks which they previously performed for the branch and which others engaged by the branch are currently performing. To require the Branch in this case to fund the Executive for that purpose highlights this essential difference.

The terms of the first of the two relevant resolutions of 16 March 1983 are, in my opinion, within the scope of the Federal Executive's power. They simply authorise the Federal Secretary to offer employment to the employees desirous of accepting that employment at a particular salary, the term of the employment to be from acceptance until the Union has heard and determined the appeals, and the duties to be performed by each employee to be as determined by the Federal Secretary in consultation with them. If this resolution had been implemented by the Federal Secretary by engaging the employees to perform work for the Union itself, not being work which in fact covered the same field as the work being done for the Branch by its newly appointed Branch organizers, I would see no objection to it. There was a question of fact before the primary Judge as to the precise duties being performed by the employees following the passing of the 16 March 1983 resolution. His Honour found as follows:-

"The Union offered the services of the second respondents to the Branch but the Branch declined the offer. The Union accordingly set up a 'federal annexe' at premises separate from the Branch. The second respondents operate from the federal annexe. They perform the duties specified for Branch organizers in Rule 47 of the Branch rules but do so under the direction and control of the federal secretary not the Branch Council. The second respondents claim to perform these duties only in respect of members of the Union attached to the Branch employed under awards and industrial agreements made pursuant to the Act. Each of the second respondents holds a certificate dated 14 April 1983 and signed by the Federal Secretary of the Union which provides that the holder of the certificate 'is a duty accredited representative of the Federated Clerks Union of Australia'. Employees engaged by the Branch also perform the duties specified in Rule 47 of the Branch rules in respect of members of the Union attached to the Branch who are employed under awards and industrial agreements made pursuant to the Act but they do so under the direction and control of the Branch Council. According to the federal secretary of the Union, there is 'ample work available for experienced F.C.U. organizers". Further, it is denied that there is resultant confusion arising from the operation of the two groups but that is disputed by the applicants. In any event, the respondents' position is acknowledged to constitute merely a temporary measure which will not continue after the determination of the second respondents' appeal. If they are successful, they will be reinstated, and if not their employment by the Union will be terminated.
. . .
It is not really in doubt that, however they may be described, the second respondents have been engaged by the Union as, and are performing the duties of, Branch organizers. The nature of the role and the duties which it carries make it inherently improbable that it can have been intended that there could be different groups subject to different directions simultaneously performing the same work."

Those findings were not challenged before us on appeal. His Honour concluded:-

"What is in question is not the Union's right to employ but to employ persons to carry out the duties of Branch organizers. Quite apart from any question of the autonomy of the Branch, there is a division of powers between federal and branch management. The premise that federal management can exercise functions given to branch management in conflict with branch management seems to me fundamentally incompatible with the basic structure of the Union."

I agree with those remarks.

It is plain from a perusal of the Union Rules and the Branch Rules that it is for the Branch to hire and fire its employees (see for example Branch Rules 32 and 48). The duties of Branch organisers are prescribed by Rule 47 of the Branch Rules. It is unnecessary to set them out in full, but they include the duties of submitting to each meeting of Branch Council a report in writing of the work performed by them, attending wherever possible all meetings of Branch Council and Branch Executive and, when required, sub-committees thereof and Section meetings. They also have the right to attend meetings of a Sub-Branch or Section. Once it is accepted, as it must be in view of his Honour's findings of fact, that the employees are currently performing the functions of Branch organizers, it is impossible to accede to the submission that this practice is countenanced by the Union Rules.

The appellants placed some reliance upon the opening words of sub-rule 27(3) of the Union Rules to support the correctness of the Federal Executive's employment of the employees. Those opening words are:-

"27(3) The Federal Executive shall, subject to the review of its actions by the Federal Council, have the care, control, custody, superintendence, management and administration in all respects of the affairs, business, funds and property of the Union, and without limiting the generality of the foregoing it may:-
. . . . . "

But those words cannot be used to warrant so substantial an interference with the powers of the Branch to control its own employees. Indeed, the enumeration of special powers in sub-rule 27(3) which follows those general opening words denies the proposition advanced by the appellants. For example, para. 27(3)(b) empowers the Federal Executive to remove officers, councillors or committee men of any Branch in certain specified circumstances. That power of removal is generally exercisable when the officers, councillors or committee men of the Branch in question have in one or other of the respects specified in the paragraph misconducted themselves or failed to observe the rules of the Union or of the Branch or when the Branch itself has seriously transgressed - for example, if the lawful directions of the Federal Executive or the Federal Council are not being observed and enforced by the Branch (sub-para. 27(3)(b)(ix)) or the Branch is seeking to secede from the Union (sub-para. 27(3)(b)(x)).

Once the conclusion is reached that the Federal Executive lacks the authority to confer upon the employees an authority to carry out the duties of Branch organizers pursuant to rule 47 of the Branch Rules, it must follow that the conduct of the Federal Executive, in purporting to require the Branch to pay to it moneys equivalent to the cost to the Union of the salaries and associated expenses of employment of the employees, cannot be supported. The appellants relied on sub-rule 15(1) and the opening words of sub-rule 27(3) as two independent sources of authority to support the demand of the Federal Executive upon the Branch.

Sub-rule 15(1) provides:-

"15(1) Unless otherwise directed by Federal Council or the Federal Executive, branches may retain for the maintenance thereof all moneys received by them other than the sums hereinafter required to be forwarded to the Federal Executive."

Nothing turns on the later provisions of rule 15 which define the circumstances in which certain moneys must be forwarded by each branch to the Federal Executive.

Notwithstanding the absence of any specific fetters in sub-rule 15(1) upon the Federal Executive's power to direct a branch in respect of moneys held by it, that sub-rule cannot be a vehicle for the exaction of funds from the Branch to pay the salaries of employees who are engaged by the Union to perform unauthorised functions. Likewise, sub-rule 27(3) cannot be a valid source of power for this purpose. In these circumstances I do not think it necessary to attempt to define the scope of the power conferred upon the Executive by sub-rule 15(1). This is best left to be determined in other cases.

My conclusion that the Federal Executive had no authority to act as it did pursuant to the two relevant resolutions of 16 March 1983 rests essentially upon the division of powers and functions defined in the Union Rules and the Branch Rules and not upon any general principle of branch autonomy, whatever that may mean in this case.

I would therefore allow the appeals against so much of the judgment of the primary Judge as ordered the appellants to observe the rules of the Union by terminating forthwith the purported appeals by the employees from their dismissal as Branch organizers by the Branch Council of the Branch. I would otherwise dismiss the appeals.