Olive, Noel James v Australian Building Construction Employees and Builders Labourers Federation New South Wales Branch

[1978] FCA 32

JLtDG" No. ..... ?U?....../ L&,,,,,

IN THE FEDERAL COURT OF AUSTRALIA	)
\

INDUSTRIAL	DIVISION	j	NO. 9 O f 1970
1

NEW SOUTH WALES DISTRICT REGISTRY )

e BETWFZN NOEL JAMES OLIVE

Applicant

'.	AND
- AUSTRAI IAN BUILDING CONSTRUCTION

EMPLOY'XS AND BUILDERS LAROLT?XS

FEDERAXON NEW SOUTH WALES B K X i C ~ and JOsEPH FERGUSON

Respondents

IN MATTER of an election for Affices jn

the Australian Building Construction Empioyees

and Builders Labourers Federation New	SolLth
Wales Branch

. m AND IN THE MATTER of the Conciliation and

Arbitration A k t , 1904

JUDGE MAKING ORDER: J.B. SWEENEY J.

DATE OF ORDER: 12 May, 1978

WHERE MhDE: Sydney

ORDER OF THE COURT:

1. The court determines that r irregularity h as occuri -?d

in the lection the subject of the inquiry.

2. The court declares that the steps taken in or in connection with the election other than the calling

for receipt iraad acceptance by the Returning Officer f

nonunations are void.

3. fie court directs khe Industrial Registrar to make

steps in or in connection with

n the calling for receipt and

S to be taken again and

for the uncaapleted step the election to be taken.

.A

d.

IN T& FEDERAL COURT OF AUSTRALIA)

1

INDUSTRIAL	DIVISION	)	NO. 9 Of 1978
1

NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN 'NOEI~AMES	OLIVE	l
Respondents

l

IN THE MATTFR of an election 'for offices in the Australian Buildina Constructlon

Employees and Builders Lakurers

Federation hew South Wales Branch

AND IN THE MATTER of the Conciliation

and Arbitration Act, 1904

12 May. 1978 J.B. SWEENEY J.

REASONS FOR JUDGMENT

This is an inquiry into an election within the

New Soud:h Wales Branch of the Australian Building

Construction Employees and Builders Labourers Federation

(the Federation). Application was made to the Industrial.

Regietrar for an inquiry and he on 21 April last granted

the application and referred the matter o the court.

On the heariig, Mr. D. Ryan of Counsel appeared

for the Organisation and the Returning officer and Mr. R.

Madgwick, Mr. R.C. Manser and Miss c. Simpson appeared

. for the Applicant.

The election into which the inquiry is held is

for the Offices of Branch Secretary, Trustee, Delegate to

2.

.Branch Executive Cormnittee and two organisers of the New

South Wales Branch.

' l%e election arises in a--unusual fashion. An

-

election was held within the Branch in about September,

1976 when officers were elected for a period of three

years. One member of the Branch Executive Committee

resigned early in 1977 and an eiection was held shortly

thereafter and that position was filled. other vacancies

in offices, including that of Branch Secretary and

organisers, occurred later in 1977. The Branch rules

provided for casual vacancies in the positions other than

those of the Branch Secretary to be filled by elections

to be commenced within fourteen days. So far as the Eranch

Secretary is concerned, the rules provided that the position

should be filled by appointing an acting secretary for

period not exceeding six months and for an election by

secret ballot to be held during that time. No steps were

taken to hold any ballots to fill any of the vacancies.

In these circumstances proceedings were brought

.&fore this court under 8.141 of the Conciliation &

Arbitration Act in which orders were sought that elections

be he12 as required by the rules and that persons then

. purporting to hold the vacant offices cease so to do.

Upon the matter coming before the Court, the

I

parties announced that settlement had been reached. The

parties were Noel James Olive, Duncan stuart Williams,

Robert Charles Petty and Ralph Kelly (Claimants) and

John McNamara, Sean Brennan, Steue Black, Dick Keenan,

,.

3.

l

Joe CabaSSi, Bill Riley, Stan Casey, Peter Lewis, Alan

Garde. Ted Mansfield, John Kirby, Laurie skinner, Sean

Cody, John Potts, Phi1 Brown and Joseph Ferguson (Respondents)

The terme of settlement were as follows:

A. It is hereby agreed that the Claimants will

seek no orders other than the order set out

in paragraph B below in these proceedings

against each and all the respondents (excepting l

the respondent Garde) if the Respondent Ferguson

carries out the following undertakings which

he hereby gives to the court:

To place an advertisement in the Daily nominations for the election of persons to fill the following Branch positions in New South Wales in the Australian Building Construktlon E2nployees and Builders Labourers Federation

Telegraph and Australian Newspapers on

i. Branch secretary

ii. hustee

iii. Delegate to the Branch Executive Committee

i v . organizer (two positions)

He will indicate in the said advertisement that nominations for the said election may

be lodged on and from 20 March, 1978 and

the period for lodging nominations will

close on 3 April, 1978.

He will issue the ballot papers in the said

election, to be conducted by way of secret

postal ballot, on or before 24 April, 1978.

He will close the ballot not later than

8 May, 1978.

He will complete the count of the ballot

papere not later than 22 May, 1978.

He will declare the poll not later than the

monthly Branch meeting to be held on	13 June,
1978.

In the event of these undertakings being carried

out it is hereby agreed that this applicatlon

should be dismissed with no order as to costs.

4.

B. The Court notes that by consent of he parties

these elections shall be held by way of

secret postal ballot in accordance with Rule 4

of the Branch rules of the Australian Building

’	Construction Employees and Builders Labourers
.	Federation and Part VAA of the regulations made
under the Conciliation and Arbitration Act.

It was put to the Court by the parties that

the rule dealing with casual vacancies in positions

other than Branch Secretary provided for elections at

special meetings and	was consequently in confli	d	!	,	with
!;

a.133A and in the opinion f the parties was void: The

Court declined to make any order but noted that the

parties had agreed as set out above.

Both parties to these proceedings have now admitted that the rule dealing with the filling of vacancies other than that of Branch Secretary is void.

Therefore they say the court shobld imply a rule that

these positions when casually vacant should be filled

by an election in the same manxer as in the case of

Branch Secretary. In the circumstances of this case

and in the light of the agreement I have decided to

accept this suhnission and treat the election as one

being conducted under such an implied rule. One reason

for this is that if I did not do so, persons at present

occupying the position$ .to which they had not been

elected might continue to hold them without an election

for a period of three years.

The irregularities now alleged concern the

compilation and dealing with the roll of electors.

5.

Coincidentally an election is being conducted by the

Australian Electoral Officer for the position of General

Secretary and for this purpose the Australian Electoral

Officer has compiled a roll covering members in all

States including New South Wales. There is a marked

discrepancy between the numbers shown as eligible to

vote in the roll prepared by the Returning Officer

elected by the Branch and the Australian Electoral

i

Officer. Difficulties arose in determining the a0,tual	' I
; l

persons who appeared on one roll and not on the other

but the discrepancy shows over two hundred less electors

on the roll prepared by the Australian Electoral Officer

than on the roll prepared by the Branch Returning Officer.

Some of the problems clearly arise from differing inter-

pretations given to the rolls concerning the admission

and liability of new members.

. The Australian Electoral Officer took the

view that certain new members who had not paid their

contributions for the current half year were not fin-

ancial and hence not entitled tc~ a vote. The Branch

Returning Officer followed what he claimed was a prac-

tice of not requiring persons joining the union in the

last six weeks of a half year to pay -0ntributions for

that current half yea:. At least 218 members were con-

sequently placed on the State roll but not on the Federal

roll. ' Whether they were entitled to be treated as fin-

: ancial depends on a consideration of the rules.

6.

!rhe relevant rule is Rule 6 - Membership. It

provides in sub-clause (a) that a candidate for member-

6hip ahall cause to be forwarded to the Secretary of the

Branch of the State in which he resides an application

form which must be accompanied by the entrance fee.

Sub-clause (b) then provides:

"Subject to Clause (c) of this Rule upon receipt

by the Branch Secretary of the application he

shall sign and date same and the person applying

shall thereupon be deemed to be a member of the

Federation as from the date of the receipt of

6uch application-by the Branch Secretary, and

6hall be liable from that date for payment of

entrance fee, membership fee and/or levy (subject

to exceptions hereinafter contained).

Sub-clsuse (c) then provides for reference to the manage- ment cammittee of certain applications. Sub-clause (k)

than provides:

(i) All members of the Federation shall pay a

contribution to the Federation of $30 per

member per half year and this sum of $30

shall be payable in advance in March and

September of each year.

(ii)  Each new member of the Federation shall be liable to contribute immediately on admis- sion to membership $30 (in addition to the

joining fee) for the unexpired portion of

. the half year in which his applicatlon for membership is made and thereafter shall pay in the same way as existing members.

(iii)   Any member of the Federation not making his

payment in accordance with this Rule shall

be deernkd unfinancial and shall lose all

privileges of membership, and shall be liable

to be sued for his arrears without notice.

. . He shall not again become financial and	entitled to any privileges Or membership
until all arrears have been paid. Any member
is entitled, if he so deslres, to pay for
two half years at the same time. Notwith- standing any provision of this Rule every member of the Branch who is financial as at
the closing date of nominations shall be
eligible to vote.

. .. 7 .

The effect of this rule is that sub-clause (b)

.

makes the new member liable from the date of the

receipt of his application by the Branch Secretary

for payment of the entrance fee, membership fee and/or

levy subject to exceptions thereinafter contained.

Specific exceptions are contained in the case of

Weetern Australian members. Sub-clause (k)(ii) then

provides that each new member shall be liable to con-

tribute irnnediately on admission to membership a sum

for the unexpired portion of the half year. This is

not an exception within sub-clause 6(b). The argument

has turned on the meaning of *he word "liable" and the

different provisions in sub-rules (i) and (ii).

. It is argued that the effect of the rule is to

create a liability in the new member to pay the moneys

referred to but that this does not crystallise and is

not enforceable until some other act such as a dem nd

for payment is made. For this interpretation, reliance

has bee? placed on the rules and support sought from	a
number of authorities. The authorities cited are

O'IKeefe v. Calwell 77 C.L.R. 261 at 286 and 295 and

.	reference was also made to one of the authorities cited
in the .judgment of Williams J. at the latter page -

.'

James v. Young (1884) 2 Ch. D. 652. The Court in that

case was concerned with the interpretation not of the

word "liable" but of the word "liable" as used in the

phrase "a person liable to be prohibited under this

Act (the Immigration Act) from entering or remaining

, *

8.

in the Commonweal'h". Here the word must be interpreted

as part of a very different phrase dealing with very

different circumstances. It has been described as	a very
vague word: The Heron 11; Koufos v. Czarnikow Ltd.

(1967) 3 R11 E.R. 686 per Lord Reid at 694 and meaning

little more than under an obligation:	re Chapman
(1896) 1 Ch. 323.

Tn determining its meaning here the use of the

word "immediately" is significant. Sub-rule 6(b) has

already imposed a liability and in these circumstances

I think it proper to treat the word "immediately" as qualifying "contribute" rather than the whole phrase "liable to contribute immediately".

The effect of this is that the new member is

liable to pay the contribution "e fixed for the half

year in which he is admitted and if he does not pay it

when admitted to membership e 1s unfinancial and has

lost all the privileges of membership.

Reference was also made to a decision of the

Australian. Induetrial Court, Rowling v. Hardinq 27 F.L.R. 369.

In that case the rule under Consideration was one pro-

viding that a member who fails to pay entrance fees

shall be deemed unfinancial. The court examined the

rule in ita context and had regard to various provisions

of the rules, such as the fact that the entrance fee was . .

not an amount fixed in the rules but cou1.d be fixed by

the Union, the fact that provision was made in the rules

, . 9.

for demand to be made for arrears owing and other

provisions of the rules and it then held that a member

did not "fail" to pay entrance fees until his non-payment

continued after a reasonable time after a demand was made.

Theep rulea are very materially different and the case

relied on seems to me of no assistance.

These rules do make provision for contributions to

be received by designated persons but make no provision

', 1

at all for demands to be made either by specifiqrule or

; l

in rules dealing with the duties of officers. d e union admit.tedly is one with a large turnover of members and a

frequent admission of new members and it seems inconceiv-

able that if the effect of the rule was that a demand

must be made for payment of contributions that no provision

would be made for the demand to the member as was the

case in Rowling v. Hardinq. Such a provision could also

require proof of receipt of	the demand which may well
occasion problems.

There are different provisions used in sub-rule (i)

and sub-rule (ii). Sub-rule (i; provides for payment of

contributions for a half year before the commencement of

the half year. After the half year has commenced it is

obviously impossible for contributions to be paid in

advance and for this reason different provision must be

made for,new members. The different provision made is

contained in sub-rule k(ii) and in sub-rule (b). The

different provisions do not in my view support the

construction sought for the Respondents.

10.

I am therefore of the opinion that a person

who did not pay his contributions for the current half

year immediately on his admission to membership became unfinancial and remained unfinancial until he had paid those contributions.	.	.
The effect of this is that at least 218 perecns

who were unfinancial were included in the roll prepare?

by the Branch Returning Officer. Since on his roll the

' l

electorate was 2,400 odd, I am satisfied that having

; l

regard to that irregularity the result of the electizn

may have been affected.

The rules of the Federation provide for con-

. .	tributions to be payable each half year in advance in
March and September of each year. The effect of reading
the rule in the manner sought by the Respondents would
be to excuse the new member from payment until a demand
had been made in respect of the half year in which he
joined. However throughout the evidence a period of
eix weeks at the end of each half year has been referred
to as a period of grace and that appears to be the term
in general use. This seems to me clearly to contemplate
that no payment will be required in certain circumstances for this period and that of course is at variance with I
the construction put 0; the rule by the Respondents when
payment would have to be made but only after a demand t
which'demand might be made at any time.

so finding, it is proper for me to order a new

election. However I feel bound to say that the evidence

11.

I . * -

disclosed a numker of other possible irregularities and unsatisfactory features in connection with the ballot.

The Returning Officer was supplied with a

. .

list by the acting State Secretary, Mr. Black, on

3 Apxil, 1978. A further list of at least 57 names was

supplied by him on 21 April, 1978. The Returning

Officer's evidence was that lie included these names on

the roll on that day. The explanation given to him was

\

that a car driven by an organiser had been deseroyed by

fire and that many receipts in the car had been destroyed l

and so not included on the members card. This fire occurred in November, 1977. No explanation was given of

the delay in the furnishing of the list to the Returnlng

Officer. Indeed Mr. Black did not give evidence.

In accordance with the terms of settlement the

Returning Officer advertised in newspapers on either

5th or 6th April, 1978 that the list of electors might

be ir,spected at the union office and any objection

stating the names of persons concerned could be made

to him on the 6th or 7th. T ~s obviously precluded any

consideration by members of the 57 names. Moreover, the

advertisement not having been inserted until 5th or 6th opportunity was given'to members to check the roll. The membership is spread throughout the State and even in the

case of members in the metropolitan area an advertisement

! appearing on the 6th would glve them little scope for an

examination a€ the roll and taking of objections on the 7th.

I. ., , ,

. .

. . . . 12.

Further difficulties arise from the fact that

the practice alleged to exist of a period of grace or

of not charging new members contributions for the quarter

in which they join, is alleged to have existed since 1374

or possibly earlier. If this is so then it is probable?

that quite a number of members have never paid this first

half year's contribution to tke Federation and are con-

sequently upfinancial.

In addition members have failed to pay; concrib- l l

utionn for some periods while their membership continued.

The Returning Officer in hie check of the roll looked

only at the date of the last Fayment. He did not concern

himself with possible arrears and it is quite likely that

there are included in the list of financial members,

membezs who owe arrears to the Federation. Four cards

were attached to the Branch Returning Officer's affidavit

in connection with other aspects and an examination of

these made quite plain that a reliance only on the last.

date of payment would be insufficient to determine the

financial status member. of he . .

Moreover, the organisation of the office seems

clearly ill-designed for the parformance of the Returning

Officer's duty. Membership cards seem to have been kept

in a number of places in the office and some of them dis-

covered almost by accident. There seems no way in which

the Returning Officer had any sort of privacy or anywhere

for the safe custody of his documents.

. . .

13.

. 'i

A further difficulty arises from the quite

cavalier attitude of the Federation towards its rules.

As at October, 1976 it appears that the half yearly

contribution was $24. This was altered in November,

1976 but not lodged for certification by the Registrar

until 4 May, 1970.

In the meantime however half yearly contribu-

tions at the rate of $30 have been charged and paid.

This has meant that, in the cases where payment has been

made, the member has been overcharged by $12 per annum

and thie may well have made members otherwise unfinancial, 1

financial again. The evidence does not allow me to say

how many members would be in this category.

One of the officers seeking election, Mr. Black,

seems to have played a more active part in the election

than might have been expected. The Branch Returning

Officer, for example, seems to have relied on Mr. Black

for i.?formation as to the period of grace he was al1owir.g.

He also received information from him that the Australlan period of grace was allowable. None of these aspects seem to have been raised with opposition candidates.

There was of course the falure to even attempt

to conply with the rules in filling vacancies until

proceedings were brought under s.141.

I accept Mr. Ferguson as a man who has acted

quite honestly as Returning Officer. However this was

I . .

' . 14.

the first occasion he had so acted in the case of a

contested ballot and the problems involved in the

conduct of a further ballot by reason of the attitude

of the Branch in acting in a manner not permitted by

the rules as in the case of the period of grace and in

the charging of the $30 contribution fee seems to me

to make it highly desirable that the ballot should be

conducted by the Australian Electoral Officer.

:, \

I propose then to make finding that' $n

i !

irregularity has occurred and I propose to order that.

the steps taken in connection with the election other

than the calling for receipt of and acceptance of nom-

inations be taken again and for the uncompleted steps

in the election to be taken.

I will now hear any 3pplication for any furtl-er

order sought.

. , .