Pillar, D.I. v Building Workers Industrial Union of Australia

[1994] FCA 77

1 9u

JUDGMENT NO. .m . . . . . . . . . . . . . . . '7 .en.a. . .

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	1 Nos V1 61 of 1991
)
GENERAL DIVISION	1

BETWEEN :  DAVID INGLES PILLAR

(Applicant)

AND :  BUILDING WORKERS INDUSTRIAL
UNION OF AUSTRALIA

(Respondent)

m:  Ryan J

Place: Melbourne

Date:  03 March 1994

MINUTE OF ORDERS

IT IS ORDERED:

1.    That the order to show cause made by Ryan J on 25 July 1991 be discharged.

AUSTRALIA

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

-4 MAR 1994

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) Nos V1 12 and 61 of 1991
1
GENERAL DIVISION	1

BETWEEN:  DAVID INGLES PILLAR

(Applicant)

AND :  BUILDING WORKERS INDUSTRIAL
UNION OF AUSTRALIA

( Respondent )

Corm:  Ryan J

Place: Melbourne

Date:  03 March 1994

REASONS FOR JUDGMENT

Rvan J: On 15 March 1991, Gray J granted a rule nisi calling on the respondent Building Workers' Industr~al Union of Australia ("the BWIU") to show cause why orders should not be made to the effect that the rules of the Victorian Branch of the BWIU contravene s.198 of the Industrial Relations Act 1988 ("the Act") by failing to provide for the control of committees of that branch by members of the branch and in four

other specified respects.

That rule nisi was made returnable on 24 July 1991 but, in the meantime, the BWIU had amended its Victorian Branch rules in a manner which arguably made them less vulnerable to an attack of the kind foreshadowed in the rule nisi of 15 March 1991. Those amendments were certified by the Industrial Registrar on the morning of 24 July 1991 after the hearing of the origlnal rule nisi had commenced.

Thus, w i th t h e consent of t h e p a r t i e s , on t h e morning of 25

J u l y 1 9 9 1 I gran ted a f r e s h r u l e n i s i i n proceedings numbered

V1 6 1 of 1991. Argument was t h e r e f o r e d i r e c t e d t o t h a t new

r u l e n i s i and n o t t o t h a t g ran ted by Gray J	on	15 March	1 9 9 1
which was	accord ing ly discharged by consent .	The new	r u l e

n l s i c a l l e d on t h e BWIU	t o show cause why	t h e fol lowing o r d e r s
should n o t be made:

"That the rules of the Burlding Workers' Industrral Union of Australia, Victorran Branch (the Branch Rules) contravene 6.196 of the Industrial Relations Act 1988 (the Act) by farlrng to provide for the control of committees of the sard Branch by members of the sard Branch, and further rn the following respects:-

1. Branch Rule 6(13) imposes on members of the Branch condltrons, obl~gat~ons or restrictions that, having regard to the objects of the Act and in partrcular s.3(f) and (g), are oppressive, unreasonable and unjust, rn that:-

(a)	~t requires members to be designated in one of four classificatrons, carpenter, labourer, stonemason or trlelayer, as part of the procedure of determrnrng the eligrbrlrty of each member to nominate for election to any office wrthln the Branch where electron to such office 1s dependent upon the member fallrng into one or other of the said classrficatlons;
(b)	rt provrdes that the desrgnation referred to in (a) shall be conclusive and shall b ~ n d the Branch returnrng officer;
(c)	it forms part of the restrictions imposed by the Branch Rules upon the right of representation of labourers on State Conference and State Committee of Management contarned in Branch Rules 19(2) and 23(2).

2.     Branch Rule 19(2) imposes on members of the Branch condrt~ons,

of the Act and in particular s.3(f) and (g), are oppressrve, oblrgations or restrrctrons that, having regard to the objects

unreasonable and unjust, in that:-

(a)	~t prescrrbes that of the 16 members to be elected to the State Management Commrttee only seven are to be labourers;
(b)	it prescrrbes that of the 22 members to be elected as State Conference Delegates, only nrne are to be labourers;
(c)	rt prescrrbes that of the Zone Delegates to be elected from each zone, two are to be labourers.

3. Branch Rule 23(2) Imposes on members of the Branch conditions, obligations or restrictions that, having regard to the oblects of the Act and m partrcular s.3(f) and (g), are oppressive, unreasonable and unjust, in that it prescribes that of the 16 members to be elected to the State Management Committee only

seven are t o be l abou re r s .

4.           Branch Rules 22 and 22A imposes on members of t h e Branch cond i t i ons , o b l l g a t r o n s o r r e s t r i c t i o n s t h a t , havlng r ega rd t o

t h e o b j e c t s o f t h e A c t and i n p a r t i c u l a r s . 3 ( f ) and ( g ) , a r e

opp re s s ive , unreasonable and un ju s t , r n t h a t t hey do no t

provrde members w i th a n y ' e f f e c t i v e o r reasonable a cce s s t o a

referendum.

5.	Branch Rule 40 (4 ) imposes on members of t h e Branch cond i t i ons ,
o b l r g a t r o n s o r r e s t r i c t ~ o n s t h a t , havrng r ega rd t o t h e o b j e c t s
o f t h e A c t and i n p a r t i c u l a r s . 3 ( f ) and (g), a r e oppress ive ,
unreasonable and u n j u s t , i n t ha t : -
( a ) it does no t l i m r t t h e number o f zones whlch may be

c r e a t e d by t h e S t a t e Management Committee f o r e l e c t i o n s

a f t e r t h e 1991 e l e c t ~ o n ;

( b ) ~t does no t require any e q u a l i t y o r s u b s t a n t i a l e q u a l i t y

o f membershrp l n each zone."

At all relevant times the Constitution rule of the BWIU made eligible for membership of that organisation carpenters or joiners, t~lelayers, stonemasons, "marble masons, polishers,

machinists sawyers and all other persons engaged in the dressing and preparation and/or erection of terrazzo or similar compositions", bricklayers, tuckpointers and except in the State of Victoria, slaters, roof tilers, shinglers, r~dgers, cement tilers fixers of roofing sheets and in New South Wales "journeymen and other labour engaged in the plate, sheet and ornamental glass trade or apprentices or persons

whether employees in the industry or not as have been	appointed officers of the Union and admitted as members
thereof". By proviso B to the Constitution Rule it was stipulated:

"(B) Further provided that without lrmiting the generalrty of the foregoing, the Unron shall also consist of:-

(1) workers (other than tradesmen), on any work in or in connection with or rncrdental to the erectron, reparr, renovation, maintenance, ornamentation, alteratron, removal or demolrtron of any buildrng. For the purpose of this sub-rule (B) building shall include a buildrng- type structure for the purpose of housing persons, goods or workshop equipment (other than mechanical or electrical plant) on a Civil or Mechanrcal Engineering s~te.

(2)

without lrmitmg the generality of the foregoing, persons elrgrble for membership of the Union shall rnclude any

worker	:
(i)	assisting any brrcklayer, mason, plasterer, carpenter, or other tradesmen engaged on the work described in Part (1) of thls sub-rule; or
(ii)	employed on any makrng or contractrng job rn wood, stone, brick, concrete, iron or steel, or combination of these or other materrals rncrdental to any of the work described in Part (1) of thls sub-rule, and in partrcular as

Bricklayers Labourer
Plasterers Labourer
Concrete Fmrsher
Dump cart operator
scaffolder
Powder Monkey
Foundation Shaftsman
Steel Frxer (rncludlng Tack Welder)
Assistant Powder Monkey
Demolition Worker
Gear Hand
Jackhammerman
Mrxer Driver (Concrete)
Steel Erector
Aluminrum Allov Worker Structural Erectors [whether
prefabrrcated or otherwise)
Cement Gun Operator
Concrete Cuttrng and Sawing Machine Operator

Concrete Gang Worker (mcluding Concrete Floater)

Roof Layer (Malthoid or srmllar material)

Underprnner

Concrete Formwork Stripper
Bullders Labourer
Tackle Hand
Floor Sanding and/or Smoothing Machrne Operators
Leading Hand Labourer
Labourer on Refractory work
Labourer excavatrng ground for foundatrons or

basements of buildrng or levelling ground on a proposed building site or doing concrete work, tar pavrng or asphalt work or mortar or concrete mrxrng in connection with or incidental to the construction, repair, demolitron or removal of buildings

Rigger performrng rrggrng work that is an mtegral

part of, or is rncidental to, a tradesman's work

Assistant Rrgger assrstrng a rigger specified m ~mmedlate preceding classrfications

Drrlllng Machine Operator except in the mining or mineral exploration or hydrocarbon rndustraes

Provlded that, nothing in this sub-rule (B) shall render ellglble to loin the Union any person employed:-

(3) In the State of Victoria as a bricklayer's labourer, a brrcklayer's labourer-refractory brickwork, a plasterer's labourer assisting a flbrous plasterer, a plasterers labourer assisting a solid plasterer, a concrete flnlsher, or labourer whose sole function is to assist a roof slater and tiler or whose sole funct~on is to operate a dump cart;

(4) A drarner or person employed as a plumber's labourer;

(5)	On a burldrng or structure whrch buildlng or structure is for the purpose of houslng mechanical or electrical plant
on a Crv1.1 or Mechanical Engrneerlng Slte;

(6) In the installation, repalr or maintenance of lifts, escalators or arr-condltronmg plant;

(7) In the States of Queensland, South Australia, Tasmania, Western Australaa and the Northern Territory."

Victorian Branch Rule 6(13) as certified by the Industrial
Registrar on 24 July 1991 was ln these tens:

"(13) (a) The record of members of the Branch prepared by the Branch Secretary in accordance with sub-rule 26(7) shall classrfy each member lnto one or other of the following

classifications:-

(i)         carpenter;

(11)        labourer;

(lri) stonemason; or

(LV) tilelayer

whrch shall be known as the member's desrgnated

classrfrcatlon.

(b) For the purpose of preparang the frrst record of members of the Branch rn accordance wrth the provisions of the prevlous paragraph the State Secretary shall, in relation to members of the Branch as at the date of cert~flcatlon

of this sub-rule, determine each member's deslgnated classrfrcatron by reference to the criteria set out in Rule 6(13)(f)(i),(ri) and (iii) having regard to the ~nformatron contarned m exlstrng records held by the Branch and such further information as the State Secretarv considers it necessarv to obtarn. As soon as practica61e after determining each member's deslgnated

classification in accordance with this ~araara~h the < -

State Secretary shall notliy each membe; In wrlting accordingly.

(c)

A person applying for membershrp shall rn the section "Classification" on the membershrp applrcat~on form as set out in these rules nom~nate which one of the classifications set out in paragraph (a) the applrcant for membershrp consrders to be hrs or her appropriate classrfication.

(d)

In dealrng with applications for membership the SMC shall determine each new member's desrgnated classificatlon.

(e)

The SMC may at any trme change a member's designated classrfrcation provided that the SMC shall not change a member's desrgnated classificatlon unless -

(i)	the SMC has recerved from the member a request rn wrrting for a change to the member's desrgnated classrflcatron settrng out the reasons for the request; or
(li)	the member has been given a reasonable opportunrty by the SMC to state in writing the reasons why he or she should retarn hrs or her exrsting designated classification or have a different designated classification.

As soon as practicable after the SMC changes a member's designated classrfication in accordance with this paragraph the State Secretary shall notify the member in wrrtrng and alter the record of members of the Branch accordrngly.

(f)

The SMC shall determine an applicant for membershrp's desrgnated classrfication in accordance wlth paragraph (d) or a change to an exrstrng member's desrqnated reference to:- classrfrcat~on i n accordance wrth paragraph (e) by

(1)	the trade or other qualrfrcations held by the applicant for membership or existing member;
(li)	the award class~frcation of the applicant for membershrp or exrsting member, or hrs or her last award classrfication; and
(iii)	the work performed by the applrcant for membershrp or existing member, or the last work performed by him or her.

(9) Where the SMC consrders that it does not have suffrcrent information available to determine an applrcant for membership's designated classif~cation or to chanqe an existing memberri desrgnated classification it -shall request that the member provrde such further rnformation as the SMC considers approprrate.

(h)

The designated classifrcatron of each member determrned rn accordance with this sub-rule:

(i)	shall be solely for the purpose of determining the elrgrbllrty of each member to nominate for electron to any office within the Branch where election to such office rs dependent upon the member falling into one or other of the class~frcations set out rn paragraph (a) hereof;
(11)	shall be conclusive; and
(rii)	shall brnd the Branch returnlng officer."

Rule 6(13) was apparently inserted as a machinery provision to give effect to other provisions in the Victorian Branch Rules which attached consequences to a member's designated classification, particularly with regard to candidature for certain offices within the Branch.

By r.23 of the Victorian Branch Rules a committee to be known as "the SMC" was established for the purpose of controlling the affairs of the Branch. The composition of the SMC was ordained by r.23(2) in these terms:

"(2) The SMC shall consrst of the Branch Presrdent, Branch Vlce President, Branch Secretary, Two Asslstant Branch Secretaries and slxteen other SMC members consisting of:-

7 carpenters

7 labourers

1 stonemason
1 tilelayer

Provlded that among the slxteen (16) SMC members there shall be 12 non full-trme Branch Officers and not more than a total of four (4) Branch Organisers or Fzeld Advzsors.

Provlded further that in the elections of members of the SMC where there are more than four (4) Branch Organisers or Fzeld Advisors nominat~ng as SMC members and have received sufficient number of votes to be elected to the SMC, then to deczde whlch

received the hrghest votes shall be lncluded in those elected. four (4) are to be elected, the four (4) candldates wh~ch have	Provided that not more than four full-time Branch Organrsers or
Freld Advlsors shall be elected as members of the SMC.
If more than four Branch Organisers or Fleld Advisors nominations are recezved, the four candldates recervlng the hrghest number of votes shall be elected.
Ten members present shall constrtute a quorum.
All members of the State Management Committee shall recerve minutes of each meeting.
When the Branch Secretary 1s absent from normal duties, the State Management Committee may select from the two Assrstant Branch Secretaries, one Assistant Secretary to act as the Branch Secretary whrlst the Secretary is absent on leave.

(3) Subject to these rules, the SMC shall:

(a)	Exercrse control over the Sub-Branches, flx the salarres of the officers and report to each Sub-Branch at least half-yearly. No officer's salary shall be allowed to accumulate. It shall exerclse general control over the members.
(b)	Take such steps as it shall thlnk fit to carry out wlthrn the State all or any of the aforesaid objects of the Union, to consider all busrness referred to rt and to declde all cases or contlngencles for which no provision 1s made in these rules, rncludrng retrenchment."

Further restrictions and qualifications on the election of

branch officers and other members of the SMC were contained in

r.19 which, so far as is relevant, provided:

19 - BRANCH OFFICERS AND ELECTIONS

(1)	To enable an equitable representatron wrthrn branch of SMC as so to reflect the composltlon of branch membership, one bullders labourer and one tradesperson shall be elected as branch assrstant secretarles the remalnlng posrtron of branch assistant secretary shall be elected from general membership.
In the 1991 elections the positlon of three branch assistant secretarles, one a tradesperson, one burlders labourer and one from general membership shall be fllled in the branch
elections.

(2) Any member of the Branch who is flnancral as provided for in Rule 8 at the time of nomrnatron and has financial membershrp of the Branch in accordance wlth the scale set out at the end of this Sub-rule, may nominate for such positions according to thls scale.

No member who has attained the age of 65 years may nominate for any full tune posltlon provided in Rule 19 of these Rules.

No member shall be entrtled to nomrnate for more than any one position, those posltlons berng:-

Branch Presrdent

Branch Vlce President

Branch Secretary

Branch Ass~stant Secretaries

Branch Organisers

Where a member nominates for more than any one of the above positions the Returning Offlcer shall seek from the member an election as to which positron the member wishes to contest.

Where no election is made by the member the Returning Offrcer shall treat as valid only the nomlnatlon for the more senior posrtion which seniorrty shall be determined where applicable In the following order: Branch President, Branch Secretary, Branch Vlce Presrdent, Branch Assistant Secretaries, then Branch Organiser.

The scale of financial membership of the Branch necessary for members to be qualified to nominate for the followrng posrtlons is as set out below:-

Branch Presrdent	)
Branch Vrce President	) Three years
Branch Secretary	) financial
Two Assistant Branch Secretarres	) membershrp
Branch Delegate of National Conference )
State Management Committee Members	) One years
Organisers	) f~nancral membersh~p
state Conference Delegates	) Financral membership

Provided that in addition to the Branch President, Branch Vrce President, Branch Secretary and Branch Assrstant Secretarres there shall be elected in accordance wrth Rule 19, srxteen (16) members of the State Management Committee who wrth the exception of branch organisers shall not be full-time offrcers of whom:-

7 shall be carpenters

7 shall be labourers
1 shall be a stonemason

1 shall be a trlelayer

Provided further there shall be elected in accordance wrth Rule

19, twenty-two (22) State Conference Delegates of whom:-

9 shall be carpenters
9 shall be labourers
2 shall be stonemasons
2 shall be tilelayers

Provrded further there shall be elected rn accordance with Rule 19 and Rule 40 Zone Delegates to State Conference the number of which shall be determined in accordance with the following formula:-

Srze of Zone	Number of Deleaates
Up to 500

frnanc~al members 4 delegates

Each addrtronal 1000

flnancral members 3 delegates

The number of financial members of a Zone for the purpose of determrning the number of Zone Delegates to State Conference in

members attached to that zone as at 5.00 p.m. on 30 July	accordance with this paragraph shall be the number of financial
precedrng the callrng for nomrnatrons for elect~ons of Zone Delegates to State Conference.
Provrded further that of the Zone Delegates for each zone at least 2 shall be tradespersons and at least 2 shall be labourers. In the event that the number of tradesperson candidates for Zone Delegate positions is less than the minimum number of tradesperson delegates for that zone, each position for which there rs no tradesperson candidate shall be fllled by a labourer. In the event that the number of labourer candidates for Zone Delegate positions is less than the minimum number of labourer delegates for that zone, each position for which there is no labourer candrdate shall be frlled by a tradesperson.
For the purposes of this sub-rule "tradesperson" shall mean a member whose desrgnated classrfrcat~on is erther carpenter, stonemason or tilelayer and "labourer" shall mean a member whose designated class~fication rs labourer ln accordance wlth sub-rule 6(13).

(3)	The term of office for the above positions shall be four years and such term shall commence from the 2nd January in the year following the election.
(4) Nominations which must be in wrltLng signed by the candidate and endorsed by two f~nancial	members shall be in the hands of

the Branch Returning Off~cer no later than 4 p.m. on the 28th

day of September following the calling of nominations.

(5) Nommat~ons for the various offrces falling vacant shall be
called by the Branch Returnrng Officer on or before the last

day of August in each year in which an elect~on LS to be held,

notice of which nomrnat~ons	shall appear Ln the "Carpenter and
Joiner" and the S~tuations	Vacant classificatron of the "Age"
newspaper.

(7)	For the purposes of the Ballot the books of the Branch shall be deemed to have closed as at 30th September, preceding the election. Only members who are shown Ln the records at the office of the Branch as hav~ng pald all contribut~ons, levres and frnes by 30th September preceding the election shall be
ent~tled to vote."

The concept of "zones" for the purpose of election of delegates to State Conference was embodied in r.40 of the

Branch Rules which, again so far as is relevant, provided:

"(2) Annual or special State Conference delegates are the twenty-two (22) delegates elected by the general membership in accordance with Rule 19 and the Zone delegates elected in accordance wlth Rule 19 and Rule 40.

(3) The Branch Secretary shall automatically be deemed to be elected as a branch delegate to Natlonal Conference by virtue

of the elect~on	to the off~ce	of Branch Secretary Ln terms of
Rule 19.

(4)	(a)	Subject to paragraph (b) hereof the zones from which the Zone Delegates to State Conference are to be elected in accordance w ~ t h Rule 19 and Rule 40 shall from tlme to tune be determined by the SMC.
(b	For the purpose of elect~ons for Zone Delegates to State
Conference to be held in 1991 rn accordance w ~ t h Rule 19
the zones shall be:-

Member's Residential

Postcode

Footscray

Preston

Blackburn

Clayton

Geelong

Ballarat

Bendrgo

seymour Morwell

3984-3999

(c) Wherever any election of the Zone Delegates to the State Conference becomes necessary only the members belonging to that zone where an electron is requlred to take place shall be ellgrble to nominate and to receive a ballot paper in terms of Rule 19.

For the purposes of Sub-rules (2) and (4) of this Rule, elrglble members are defined as those members wh~ch have been designated upon the branch computer membership roll as belongrng to a partrcular sub- branch shall belong to a partrcular zone which the State Management Committee has allocated a sub-branch or sub-branches to be members of

that zone.

The Branch Returnrng Officer provided for m Rule 19A shall conduct the calling of nominations and the electron referred to within this rule.

Only flnanclal members of the Branch m terms of Rule 19, (2) shall be eligible to nomlnate in the elections referred to in thrs rule.

Branch delegates to National Conference shall vote as determined by the SMC on any matter that the SMC has decrded upon. Where the SMC has not decided on any matter the delegates are free to determine their vote."

The Victorian Branch Rules as certified on 24 July 1991

provided by rr.22 and 22A, as follows, two mechanisms for

requisitioning the conduct of a referendum of members:

22 - REFERENDUM

(1) A majorrty of the Sub-Branches or of the Sub-Branches

representing a majorrty of the members ln the State of

Victorra, upon a resolution carried by a majorlty of members present at a summoned meeting, shall have power to demand a referendum of the members of the Union w~thin the State of Vrctoria, to deal with any buslness in relatlon to the Branch or its affa~rs, in the alteratron of its rules, either adding to or rescrnding such rules, or upon any policy or action taken, or about to be taken, by the SMC or any offlcral or offrcrals.

(2)	Should the referendum be against such actron or polrcy rt shall be discontlnued forthwrth.
(3)	Such referendum to be taken wlthrn four (4) weeks from the date the Secretary or Actlng Secretary of the SMC received notice of
resolutions havrng been carrled by two-thrrds (2/3rds) of the
Sub-Branches upon any matter herein stated.

(4) Thls rule shall not be altered, amended or rescinded unless such alteratron, amendment or rescrssion is carried by a three- fourths (3/4ths) majority of members attending and voting at specral summoned meetings of Sub-Branches for the purpose of determlning such alterations.

22A - REFERENDUM BY PETITION

(1) On recerpt of a petrtlon in the prescrlbed form srgn& by at least 1,400 flnanclal members or the prescribed number of flnancral members of the Branch whichever is the lesser, the SMC shall conduct a referendum of all of the flnancral members of the Branch in respect of any matter determined by State

Conference. For the purposes of t h ~ s sub-rule:-

(a)	the prescrrbed number of financial members of the Branch shall be 10% of the financial members of the Branch as at 31 January or 30 July preceding the lodging of the
petition with the SMC whichever IS the most recent;
(b)	a petition is in the prescribed form ~f the petition:-
(i) sets out rn respect of each signatory hrs or her name, his or her unron number, the address of his or her usual place of residence provided that where his or her usual place of residence is drfferent from the postal address of the member shown in the RegIster of Members of the Branch that postal address shall also be set out;

(11) IS srgned by each of the srgnatorres to the petrtron in the presence of a fmancral member of the Branch ("the wltnesslng member") and in such manner that the signature of the signatory shall

appear next to h ~ s or her name and address; and

(lii) if the questlon wh~ch rs the subject of the petition is set out rn full at the top of each page of the petition.

(c)	A petition presented in accordance with this rule shall be accompanied by a declaration by each witnessing member in respect of each person who srgned the petitron rn hrs or her presence, that -
(i) the person signed the petition in the presence of

the witness~ng member; and

(Li) the witnessing member rs a flnanc~al member of the

Branch,

and the declarat~on	shall set out the wrtnessrng member's
name, Unlon number and usual place of res~dence	prov~ded

that where his or her usual place of residence 1s
different from the postal address of the wrtnessmg

members shown m the Register of Members of the Branch
that postal address shall also be set out.

Any signature of a petition which is not verified by a declaratron of a witnessrng member in the manner set out in this sub-paragraph shall not be counted in the number of signatures required for the purposes of determinrng whether a referendum must be held.

(2)	The referendum referred to in this rule shall be conducted as follows:-
(a) The referendum shall take place wlthln 2 months of the recelpt of the petrtlon;
(b) The SMC shall determ~ne the questron to be submitted to

the members, wh~ch shall be a f a ~ r representation of the

question the subject of the pet~tron,	and the form of the
ballot paper;

(c)	The Branch returning off~cer shall flx the dates and tlmes for the dispatch and return of ballot papers;
(d)	The Branch returning officer shall count the votes and declare the result of the referendum; and
(e)	In all other respects the referendum shall be held as nearly as practicable ln the manner provlded for the holdrng of electrons of Branch offrcers.

(3) The result of the referendum shall be binding on the State Conference, the SMC and the members of the Branch.

It was contended on behalf of the applicant that rr. 19(2), 22, 22A, 23(2) and 40(4) whether examined separately or in combination, contravened ss. 195 and 196 of the Act because of their failure to make provision for matters which by those sections are mandatory for the rules of a registered

Sect~ons 195 and 196 relevantly provide:

"195(1) The rules of an organ~satron:

(a)	shall specrfy the purposes for which the organisation is formed and the conditions of elrgibility for membershrp, and may specify the industry ln relatron to which it is formed;
(b)	shall provrde for:
(i) the powers and duties of the commrttees of the organisation and rts branches, and the powers and duties of holders of offices rn the organisatron and its branches;

(LL) the manner of summonrng meetrngs of members of the organisation and its branches, and meetings of the committees of the organrsatron and rts branches;

(irr)the removal of holders of offrces in the

organrsat~on and rts branches;

(rv) the control of committees of the organrsation and its branches respectively by the members of the organlsatron and branches;

196.         The rules of an organrsatron:

(a)

shall not be contrary to, or far1 to make a provrsron required by, this Act or an award, or otherwrse be contrary to law;

(b)

shall not be such as to prevent or hlnder members of the organrsatron from:

(r)	observrng the law or the provlsrons of an award or an order of Commission; or
(ii)	entering into written agreements under an award or an order of the Commrsslon; and

(c)

shall not Impose on applrcants for membership, or members, of the organisation, conditions, obligations or

Act and the purposes of the registration of organisations restrictions that, having regard to the objects of this

under thrs Act, are oppressrve, unreasonable or unjust."

The reference in s.l96(c) to "the objects of this Act" in turn requires regard to be had to s.3 where the following objects are enumerated:

"3.

The objects of this Act are:

(a)	to promote industrial harmony and CO-operatron among the partres lnvolved in industr~al relat~ons in Australra; and
(b)	to provide a framework for the prevention and settlement of industrial disputes by conciliation and arbitration in a manner that minimises the disruptive effects of industrial dlsputes on the community; and
(c)	to ensure that, in the prevention and settlement of industrial disputes, proper regard is had to the interests of the parties immediately concerned and to the interests (including the economrc interests) of the Australran community as a whole; and
(d)	to facllltate the prevention and prompt settlement of mdustrial disputes in a fair manner, and wrth the mrnimum of legal form and technicality; and
(e)	to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes; and
(f)	to encourage the organisation of representative bodies of employers and employees and their registration under thrs Act; and
(g)	to encourage the democratic control of organisations, and the partrcrpatron by therr members m the affarrs of organrsatrons; and
(h)	to encourage the efficient management of organ~satrons; and

(1) to encourage and facil~tate the amalgamatron of organisations; and

(k) to encourage and facilitate the development of organrsat~ons, partrcularly by reducing the number of organrsatrons that are in an rndustry or enterprise."

The evidence of the applicant discloses that, during 1990, of the total membership of the Victorian Branch of the BWIU, 26,039 or 56% were classified as bu~lders' labourers, 18,143

classified as stonemasons and 1,596 or 3.5% were classified as	or 39% were classified as carpenters, 666 or 1.5% were	tilelayers. Reliance was also placed, on behalf of the applicant on an application to the Industrial Relations Commission to vary the N a t i o n a l B u i l d i n g C o n s t r u c t i o n and
I n d u s t r y Award which proposed a new structure for the
classification of employees covered by that Award tending to blur the distinction between tradesmen and labourers and seeking remuneration which reflected the degree of "multi- skilling" which workers employed in one or other of "structural", "fit-out and finish" or "civil operating" stream had attained.
There was also evidence of marked fluctuations from time to time in the proportion of labourers to tradesmen within the Victorian Branch since 1986 when labourers were first admitted to membership. At times, the proportion of labourers amongst active members, i.e. those who had not been unfinancial for more than eighteen months, rose to over 57% and at other times fell to close to 40%. Statistics of active financial members for the same period showed the proportion of labourers fluctuating between 44% and 54%. The same figures revealed that the percentage of stonemasons only very rarely exceeded 2% while that of tile layers hovered generally between 3% and
4%. As well, the statistics exhibited to an affidavit by Mr
O'Grady, the Victorian Branch President of the BWIU, suggested that more labourers than tradesmen tended to be unf~nancial at any given time.
ELECTION TO SMC
In the light of that statistical information and other evidence, it was argued on behalf of the applicant that the rules of the Victorian Branch, by confining to tradesmen election to seven places on the SMC did not provide for control of the SMC by the members of the Branch and did not encourage the democratic control of the Branch or the participation by its members in its affairs. To achieve full

democratic control, so it was argued, all positions on the SMC should have been open to all members without any discrimination between tradesmen and labourers.

In a related way it was argued that the distinction required by r.23(2) between carpenters, labourers, stonemasons and tile layers was illogical and difficult to draw in practice. Counsel for the applicant also put it that, whatever its historical justification may have been, it was no longer consonant wlth ~.195(l)(b)(lv) or the objects of the Act to retain two places on the SMC and four places on State Conference as the exclusive preserve of stonemasons and tile layers respectively who, between them, comprised no more than 6% of the total membership of the Branch.

I am by no means persuaded that the distinction between carpenter/tradesmen and labourers is purely historical and no longer signifies in a practical way any different community of interest between the members of those groups. However, even if the distinction were anachronistic in the light of changed	practices in the building industry, it would not follow that	it is unreasonable for an organization to preserve in its
representative structures some historical distinction reflecting the compact pursuant to which it was formed or by which some group of members was absorbed into it on expansion of its conditions of eligibility upon amalgamation or otherwise.
In my view, the reservation of places on a committee of management for particular categories of members does not, of itself, infringe, or discourage the democratic control of a committee of management. That is particularly true where, as here, all members of the body are entitled to vote to fill the office for which there is a restricted candidature. Of course, there may be extreme cases where the number of offices for which candidature is restricted is out of all proportion to the numbers of persons entitled to the benefit of the restriction, or where a significant section of the membership is precluded from candidature altogether. However, the present case does not fall within those extremes.
Even if it be assumed that there was a slight preponderance of labourers over carpenter/tradesmen within the Victorian Branch, I do not consider that the reservation to each group of seven places on the SMC contravened s.l95(l)(b)(iv) or imposed on any identifiable group of members restrictions that havlng regard to the objects of the Act and the purposes of the registration of organisations were oppressive, unreasonable or unjust. In Lawley v Transport Workers Union
of Australia (1987) 22 IR 114 Gray J observed, at 123:

"The question whether the rules of an organisation contravene s.l40(l)(c) because of an imbalance in the representation of sections of rts members on a governing body is one of degree. In McLeish v Faure (1979) 40 FLR 462 at 476, the Full Court spoke of "... the spectrum over which rules dealing with the weighting of the voting power at meetings of branch delegates to or members of federal bodies of organ~sations m~ght validly range". The notion of a spectrum rnvolves the exrstence of some drfficulty In discernrng where the end of the spectrum lies, the exrstence of an indistrnct lrne between what is on and what is off the spectrum. Nevertheless, it is clear from the use of the word "spectrum" that organisatrons are not expected to achleve perfection in the equalrty of representation of

sectrons of their membership. They are permitted to take IMO

account factors other than equality of representation, especrally when there may be a perceived need to ensure that the voices of

members belong~ng to smaller sectrons may be heard."

Particularly when regard is had to the fact that there was no restriction on candidature for election as Branch President, Branch Vice President and Branch Secretary and to one of the Branch Assistant Secretary's positions, the composition of the SMC under the challenged rules was not so lacking in representative balance as to fall outside the permissible spectrum to which his Honour referred in the passage just quoted.

ELECTION OF "ZONE" DELEGATES TO STATE CONFERENCE
In thrs context, reference was made, on behalf of the BWIU, to
a resolution of the SMC of its Victorian Branch carrled on 27
July 1987 to the effect that:

"The followrng Sub-Branches be determined as Rrchmond, Prahran, Mordlalloc, Footscray, Clifton Hrll, Essendon, Camberwell, Brunswrck, Preston, Ballarat, Bendrgo, Geelong, Latrobe Valley, Murray Valley, South Western, Sunraysra, Wlmmera, Goulburn Valley."

Like the statistics of comparative proportions of labourers	and tradesmen, the statistics of the distribution of active
members or active financial members between those "sub- branches" revealed considerable fluctuations. The Preston "sub-branch" attained up to 3266 members and Oakleigh approached 4,000 while no other "sub-branch" exceeded 3,000 and several country "sub-branches" like Ballarat generally fluctuated between 200 and 400 members. Neither Wimmera nor Sunraysia ever exceeded 100 members.
The explanatory memorandum circulated to State Conference delegates before they carried the amendments to the rules which were cert~fied on 24 July 1991 included the following
paragraphs referable to those parts of the proposed new rr. 19
and 4 0 which are reproduced above providing for the election of "zone" delegates to State Conference:

"Chanaes to Zones and Zone Deleqates to State Conference

*	Paragraph 5 of the resolution provrdes for 9 zones based on the current mail sorting centres (thrs wlll assist in the administration of the zones) w ~ t h the SMC having power to alter the boundaries of the zones;
*	To ensure some werghting towards the country zones paragraph 2 of the resolution provldes for each zone to have 4 delegates for the frrst 500 f~nancial members and 3 delegates for each additional 1,000 flnanclal members;
*	To avoid zones bemg "swamped" by e~ther labourers or carpenters paragraph 2 provldes for at least 2 zone delegates for each zone to be trades persons and 2 to be labourers;
+!	The effect of the resolution for nominat~ons for the 1991 electrons will be approximately as follows:-

-	No. of Members	No. of Deleaates
~elbourne/~ootscray	2,250	7
Preston	3,000	10
Blackburn	2,300	7
Clayton	4,700	1 6
Geelong	600	4

Ballarat	200	4
Bendigo	200
seymour	400
Morwell	490
Total

The applicant's principal criticism of the "zone" system was that there were excessive discrepancies between the voter populations of different zones. That, it was said, enhanced the risk that an individual vote might have a vastly different value according to the zone in which it was cast. That was 2submitted to be partly a consequence of the "first past the post" system of voting whereby a "ticket" of candidates in, say, the Clayton zone with the support of a bare majority of the 4,700 members residing in that zone could procure the election of all sixteen candidates leaving about 2,200 members who supported other candidates without any representation at all. The "wastage" of those 2,200 votes could be avoided, it was argued, by the creation of more zones, each having a smaller number of voters and fewer delegates.

I do not regard the discrepancies in the voter populations of the zones fixed by the rules for the 1991 elections as excessive. The entitlement to representation of each of the four large metropolitan zones was generally proportionate to the number of members residing in the respective zone. It is true that, by allowing four delegates to each of the country zones, r.19(2) provided for their over-representation, but that may have been no more than a legitimate reflection of the

voice on State Council and prevent members in them from	need to allow geographically widespread zones an effective
feeling swamped by the more populous metropolitan zones; cf McLeish v Kane (1978) 36 FLR 80 at 93. Moreover, the effect of the over-representation of country zones was diluted because their twenty delegates were to take thelr places on a State Conference alongside forty delegates from metropolitan zones, and twenty-two delegates elected by the Branch membership as a whole and the Branch Secretary also elected by the Branch membership as a whole. Thus, on any view, an overwhelming majority of the State Council could be taken to have been responsive to the wishes of the electorates from which they are drawn and which were comprised solely of, or dominated by, metropolitan members.
The possibility that all positions as delegates for a particular zone might have been won with the support of the same persons constituting a very narrow majority of electors in that zone existed whatever the size of the zone and irrespective of whether the zone was a single-member or multl- member electorate. It existed also in respect of the office- bearers and the twenty-two State Councillors to be elected by the Branch as a single electorate. Such a possibility is a function of the "first-past-the-post" electoral system and the grouping of candidates in parties, factions or "tickets".
However, the object of encouraging democratic control of organisations enshrined in s.3 of the Act does not entail, by reason of s.l96(c), that a voting system based on something
other than proportional representation imposes on members of the organisation conditions obligations or restrictions that
are oppressive, unreasonable or unjust. In this context, the following observation of O'Mara J in Thornton v McKay (1946) 56 CAR 561 at 590 on a predecessor of s.196 can be paraphrased to apply to the selection by an organisation or branch of a voting system or a combination of two or more systems:

"So far as that section 1s concerned I do not concelve it to be the function of the Court to put lnto effect lts own oplnions as to what is desirable ln the way of union rules and union management. The section leave the members of an organization free to adopt such rules as they see fit subxect to those rules complyrng with the prescribed conditions and not being disallowable under the section. As to a scheme of government the members are free to choose, for example, either a federal system or a unrtary system, they are at liberty to functron wrth or without branches and sublect to the prescribed condrtions they may drvrde power amongst the organrsatrons and the branches as they consider proper."

For the reasons given at p.18 above in relation to elections to the SMC, I do not regard the reservation of two positions as delegates from each zone to carpenter/tradesmen and two to labourers as contravening s.195 or s.196. Nor did the similar reservation of nine places for carpenter/tradesmen, nine for labourers and two each for stonemasons and tilers among the twenty-two State Conference members to be elected by the Branch as a whole offend against either of those sections. It may be that the guarantee of four places on a State Conference of 83 members gave stonemasons and tile layers a slight degree of over-representation but, in the historical context that was not enough to take the relevant rules outside the permissible "spectrum" postulated by Stephen J in Attorney-General (Cth)

(Ex re1 McKinlay) v Commonwealth of Australia ( 1975) 135 CLR 1

at 57.

Counsel for the applicant also pointed to the provision in

r.40 (4) (a) which entrusted to the SMC the power to determine, for elections after those to be held in 1991, the zones from which delegates to State Conference were to be elected. Significantly, that power was circumscribed by the requirement in r.19(2) to maintain proportionality between the number of members in any zone so determined and the number of delegates to be elected from that zone. In general, the rules of an industrial organisation are to be read as containing an implied term that any power entrusted to an officer or organ of government is to be exercised in good faith and in the interests of the members of the organisation as a whole; see e.g. A l l e n v Townsend (1977) 31 FLR 447 at 483-488. So construed, a grant of power to the SMC to adjust zone boundaries from time to time to give effect to some principle enshrined in the rules did not, in my opinion, offend s.195 or s.196 of the Act.

REFERENDUM
The applicant's attack on rr.22 and 22A was essentially
founded on the proposition that the facility to review actions
of the SMC or the State Conference which they respectively
purported to confer was illusory. In the first place, it was
said, it was practically impossible to initiate a referendum
under r.22 because all of the sub-branches had effectively
ceased to function. That was not disputed by the respondent,
although Mr O'Grady asserted on its behalf that the Victorian

Branch was "prepared, if necessary, to correct this

situation".

The criticism was also made on behalf of the applicant that the requirements in r.22A(l)(b) and (c) for verification of each signature on a petition by another financial member who was also required to supply his or her name, union number and address was unduly onerous. That, so the argument went, was particularly so when regard was had to the high minimum number of petitioners required to obtain a referendum. As well, it

was suggested that r.22A(a)(b) inappropriately reposed in the SMC the power of determining the question to be submitted by referendum to members of the Branch.

In answer to these submissions, Counsel for the respondent pointed to other provisions in the rules which enabled control over the SMC to be exercised by the members of the Branch. He pointed first to r.23A which required branch meetings to be held on the first Thursday of each month. However, by r.23A(7) the branch meeting had powers only "of recommendation to the SMC. A special general meeting of Branch members could be called at the written request of 25 members but unless decided otherwise by the Branch meeting or the SMC, a Branch meeting was required to be held at 1 Lygon Street, Carlton South.

Secondly, reference was made to r.21 which made State Conference the supreme governing body of the Branch by providing:

21 - SUPREME GOVERNING BODY IN BRANCH

(1)	The Governing Body ln the State of Vrctorra shall be the Annual or Special State Conference, called together in accordance wlth the rules. Specral Conference shall be called by the SMC on the resolutions requestrng same of a majority of Sub-Branches or on receipt of a petitron of not less than 10% of the financial members, or by the SMC or decision of the prevlous Annual or Specral Conference. All decrsions to be blndlng on the SMC.
(2)	Conference shall consist of the members of the State Management Committee, twenty-two (22) delegates elected rn accordance wrth Rule 19 and Zone delegates elected in accordance with Rule 19 and Rule 40.
State Conference shall meet annually no later than May.
(3)	The President of the SMC shall preside at all rneetlngs of the state Conference or Special State Conference. In the absence
of the Chairman, the Vice-Pres~dent of the SMC shall pres~de. The Charrman shall have a casting vote only.
( 4 )	The Conference shall have the power to drrect the policy of the Branch, make, amend and resclnd rules, subject to Rule 22, and
determine the number of organisers to be elected rn accordance with the provrsrons of Rule 19.
(5)	In any elect~on held by an Annual or Special State Conference every delegate and member of Conference shall be glven an opportunity to vote whether present at the Conference or not."

Then Counsel for the BWIU urged that, even viewed by itself, r.22A as a vehicle for control by the members of the committees of the Branch did not impose restrictions or safeguards which went beyond those which it was open to the Branch, or the organisation, in the exercise of a legitimate policy discretion, to adopt. He referred, in particular, to Reg 139B of the regulations made under the Conciliation and Arbitration Act 1904 which required signatures on a request for the conduct, pursuant to s.170 of that Act, of an election within an organisation, to be accompanied by a statement of the name and address of each signatory and be witnessed by a person making a declaration as to the authenticity of the signature, the identity and address of the signatory and his

or her membersh~p	of the relevant organisation.
on specific aspects of the referendum provisions in the Branch	In my view, there was much force in the applicant's strictures
rules. If r.22 had been the sole means other than the election of officers and members of the SMC by which members of the Branch could exercise control of its committees the rules would no longer have complied with S. 195 (b) (LV) of the Act because of the practical impossibility of convening the necessary meetings of sub-branches.
Similarly, I regard the stipulations in r.ZZA(1) for verification of a petition for a referendum as imposing burdens on the petitioners which go beyond the purpose for which those requirements were presumably framed. It is true, as J.B. Sweeney J pointed out in Boland v Federated Llquor and
A l l i e d I n d u s t r i e s Employees' Union of A u s t r a l i a ( 1979) LB CO's
Industrial Arb Serv Current Review at 204 that referenda are cumbersome, time-consuming and expensive for a union. Accordingly, a union is entitled to limit the right to a referendum to truly important questions. It is also entitled to impose a high threshold on the number of petitioners necessary to obtain a referendum so that there is a reasonable chance of the referendum's being carried after the expenditure of money and time has been incurred. In a similar way, the union is entitled to embody in its rules safeguards against a petition bearing less than the requisite number of genuine signatures of members. However, once the policy decision has
been taken to confer on a specified percentage of the members a right to obtain a referendum by petition, it is, I consider,
oppressive or unreasonable, in the sense used in s.l96(c) to hedge the exercise of that right with qualifications or obstacles which go further than reasonably verifying that the petition contains the true signature and reflects the actual intention of each member purporting to sign it. I regard the requirement in r.ZZA(l)(b)(ii) and (c) for each signature to be witnessed by another financlal member who must endorse on the petition his or her union number as excessive in the sense just described. It is to be noted that Reg 139(3B) of the
Conciliation and Arbitration Regulations to which Counsel for
the BWIU pointed contains no requirement for the verifying witness also to be a member of the organisation.
The need for the SMC to determine the question to be submitted to the members was not an unreasonable fetter on the right of members to obtain a referendum on an issue of their choice. That is so when it is read in the light of the requirement that the SMC's formulation be "a fair representation of the question the subject of the petition". If the SMC's formulation did not reasonably reflect the question which the petitioners intended to submit to the members, appropriate relief could have been obtained under s.209 of the Act.
CONCLUSION
Although I have indicated in my considerations of the discrete
aspects in which the Branch rules governing that matter arguments discussed under the heading "Referendum", some
required improvement, it is necessary in assessing whether there has been compliance with ss.195 and 196 to consider the effect of the rules as a whole. Thus in McLeish v Kane (1978) 36 FLR 89, a Full Court of this Court observed, at 89:

"In considering the second ground of attack, that the rule does not

provide for the control of the committees of the organization by ~ t s

members, it is necessary to look not only at t h ~ s rule but at the

rules generally. Provis~on IS made In the rules for elections at regular intervals; in the case of the general secretary and assistant general secretary, by secret ballot of all members; in the case of other members of the natlonal executive by secret ballot election by what may be termed a "f~rst-t~er" college. There is, moreover,

provision f o r plebiscites i n c e r t a ~ n ca se s . The n a t ~ o n a l c o u n c i l of

t h e o r g a n i z a t i o n has u l t l m a t e c o n t r o l over t h e n a t i o n a l executive and

I n a l l t h e c i rcumstances we a r e s a t i s f i e d t h a t t h e r u l e s p rov ide

sufficiently f o r t h e c o n t r o l of committees of t h e organization by t h e

members t h e r e o f . "

The Victorian Branch Rules as certified on 24 July 1991 provided the members with a degree of control over the actions of the SMC independently of the referendum provisions. As in McLeish v Kane (supra) there was provision for elections to the SMC at regular intervals. Although the SMC was not required to meet at regular intervals, by r.23(14) it could meet as and where it might decide, and the Secretary was on the request of any six members (scil. of the SMC) obliged to call a special meeting of it. As well, there was a practicable, although, as I have held, an unduly restricted facility afforded by r.22A for the members to obtain a plebiscite. Most importantly, by r.21 the SMC was subject to the direction and control of State Conference, a special meeting of which had to be called on receipt of a petition of not less than 10% of the financial members of the Branch. That right to petition was not qualified by any of the	evidentiary restrictions to be found in r.22A some of which I	have criticized above as unreasonably onerous. In the light
of all these circumstances, I am satisfied that the rules as certified on 24 July 1991 provided sufficiently for the control of the SMC and State Conference by the members of the Victorian Branch.
In any event, the question on which I have just expressed a conclusion became academic with the coming into operation of a

new set of rules on 23 September 1991 upon an amalgamation taking effect pursuant to the Act between the BWIU and the Australian Timber and Allied Industries Union to form an organisation known as "the ATAIU and BWIU Amalgamated Union". The rules of the newly amalgamated body provided for it to be divided into two divisions, the BWIU Division and the ATAIU Division. Within the BWIU Division there were State Divisional Branches, one of which corresponded to the Victorian Branch of the former BWIU.

The State Divisional Branches of the BWIU Division were governed by a standard form set of "BWIU Divisional Branch Rules". Under those rules the supreme governing body of each divisional branch was the "Divisional Branch Council" which was required to be convened by the relevant Divisional Branch Management Committee at least once every two years. The composition of the Victorian Divisional Branch Council was markedly different from that prescribed by rr.19 and 40

composition and functioning of the Victorian Divisional Branch	discussed above. There were also differences between the
Management Committee under the new rules and that of the SMC under the former rules.
As well, the new rules contained the following quite different referendum prescription which was common to all State Divisional Branches of the BWIU Division:

41 - REFERENDA

(a ) On r e c e i p t o f a p e t i t ~ o n s lgned by not less t h a n 1000 f i n a n c ~ a l

members of t h e D l v l s i o n a l Branch, D i v l s l o n a l Branch Counci l

s h a l l t a k e a	referendum of	t h e whole	of	t h e	f i n a n c i a l members
of	t h e D i v i s i o n a l Branch	l n r e s p e c t	of	any ma t t e r	determined by

D lv r s iona l Branch Councll .

Such referendum s h a l l t a k e p l a c e w i th in 2 months of t h e r e c e i p t

of t h e p e t i t r o n .

The d e c l s l o n reached by ma jo r i t y o f t h e a c t u a l vo t e s recorded

s h a l l be b ind ing on t h e Divisional Branch Councrl and t h e

members o f t h e Drv l s i ona l Branch.

( b ) Drv i s i ona l Branch Council may a t any t l m e , by i t s own motion,

t a k e a referendum of t h e whole of t h e f r n a n c ~ a l members o f t h e

Union upon any m a t t e r it t h i n k s f i t .

( c ) The referendum r e f e r r e d t o i n t h i s r u l e s h a l l be conducted as

fol lows:

The Divisional Branch Council s h a l l :

Determine t h e q u e s t i o n t o be submitted t o t h e members and t h e

form of t h e b a l l o t paper .

F i x t h e times f o r t h e d i s p a t c h and r e t u r n of b a l l o t papers and

give t h e necessa ry m s t r u c t r o n s f o r p r r n t l n g of same.

Appolnt a Drv l s l ona l Branch Returnrng O f f l c e r and D i v i s i o n a l

Branch S c r u t ~ n e e r t o conduct t h e b a l l o t .

I n a l l o t h e r	r e s p e c t s	t h e referendum	s h a l l be	he ld	a s n e a r l y a s
p r a c t r c a b l e	l n t h e manner	provlded	f o r t h e holdlng	of	e l e c t r o n s

of Divisional Branch O f f r c e r s . "

In view of the extent to which the rules the subject of the rule nisi granted on 25 July 1991 were superseded by significantly different rules governing the corresponding branch after amalgamation, I would have regarded it as a proper exercise of the discretion conferred by s.208(2) of the

Act, to discharge the rule nisi even if I had reached a	different conclusion on the arguments in support of it.
For these reasons, the rule nisi in proceedings numbered V1 61 of 1991 is also discharged.

I certify that this and

preceding thirty one ( pages are a true copy the reasons for judgment his Honour M r Justice Rya,

Associate:	3&
Date :

-QJ ' I+LC& iCt4

Counsel for applscant:	Mr T Ginnane
Solicitor for applicant:	Harry Nowickl & CO
Counsel for respondent:	Mr K Bell
Solicitor for respondent:	Holding Redlich