Re Airline Hostesses' Association

Re: AIRLINE HOSTESSES' ASSOCIATION (1980) 48 FLR 214
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Bowen C.J.(1), Smithers(2), J.B. Sweeney(3), Evatt(4), Northrop(5) JJ.

CATCHWORDS

Conciliation and Arbitration - Reference by Industrial Registrar of question of law - Registered organization - Rules - Requirements of Conciliation and Arbitration Act - Election of holders of each office of organization - Validity of rules - Conciliation and Arbitration Act 1904 (Cth), ss. 2 (f), 4 (1), 4 (5), 132 (2), 133 (1) (a), 133 (1) (da), 133AA, 139 (4), 140 (1) (a), (c) - Conciliation and Arbitration Regulations, regs. 115 (1), 136B, 136C.

HEADNOTE

An organization registered under the Conciliation and Arbitration Act 1904 applied to the Industrial Registrar to alter its rules in relation to the election of holders of offices. The Industrial Registrar referred to the court five questions concerning whether ss. 133 (1) (a), 140 (1) (a) and (c) of the Act and reg. 115 (1) (d) (i) of the Conciliation and Arbitration Regulations permitted a structure in an organization whereby an elected office holder may, by the rules thereof, at the time of his election, be, by virtue of that election, the holder of another "office" as defined in s. 4 (1) of the Act.

Held: Per Bowen C.J., J.B. Sweeney, Evatt and Northrop JJ., Smithers J. dissenting - Such a structure was permitted by the Act and regulations because: (1) Per Bowen C.J., Evatt and Northrop JJ. concurring - (a) reg. 115 (1) (d) (i) did not imply any notion of mutual exclusivity between the offices listed therein; (b) s. 133 (1) (a), which stated that the rules of an organization "shall provide for the election of the holder of each office" requires emphasis on the election of the "holder" and not the election to "each office"; (c) the Act in s. 4 (5) recognized that in the application of the collegiate electoral system provided for, persons elected to particular offices may be ex officio members of a body "by and from whom persons are elected" and that body could be a committee of management or other policy or management body referred to in reg. 115 (1) (d).

(2) Per J. B. Sweeney J., Evatt and Northrop JJ. expressing agreement - (a) reg. 115 (1) (d) (i) requires that the rules looked at as a whole provide for the election of the specified committee and offices; (b) the word "election" in reg. 115 (1) (d) (i) described a means whereby various offices would be filled and was used in distinction to the word "appoint". The rules under consideration did require an election in the sense of a choice by the members as opposed to an appointment; (c) the history of the litigation of the present question must be considered and it supported this conclusion. The contrary interpretation would lead to an absurd or inconvenient result; (d) the word "each" in s. 133 (1) (a) of the Act meant no more than "every".

(3) Per Northrop J. - Regulation 115 (1) (d) (i) used the word "election" in contra distinction to the word "appointment" and did not prescribe methods by which elections are to be conducted. Sherrif v. Townsend (1980), 48 FLR 20, not followed.

Bicknell v. Amalgamated Engineering Union (1969), 15 FLR 215; Porter v. Australian Federated Union of Locomotive Enginemen (1965), 7 FLR 396, referred to.

(4) Per Smithers J. dissenting - (a) reg. 115 (1) (d) (i) is satisfied so long as every person who acquired the position of a member of the committee of management acquired it by election in an election where that position is in form and substance in fact the subject of an election. This was not the case with the proposed rules under consideration which provided for the election of part only of a committee of management; (b) the questions referred to the court were to be answered by the construction of reg. 115 (1) (d) (i) which provided that in respect of each of the positions within the categories specified in pars. A, B and C of that regulation the rules must provide for the filling thereof by an election for that position. Section 133, which dealt with the particular mode of election to be adopted, expressly declared that it introduced conditions additional to those already imposed by s. 132 (2) of the Act as implemented by reg. 115 (1) (d) (i).

Quaere whether rules providing for an election for a position having a particular name but which embraces some other and quite separate position, or a single election to choose one man for more than one office would be valid. Observation that for the president to accede to the office of member of the committee of management would not be in conflict with the requirements of the Act.

HEARING

MELBOURNE, 1980, August 7,8; October 1. #DATE 1:10:1980

REFERENCE OF QUESTIONS OF LAW.

Pursuant to s. 112 of the Conciliation and Arbitration Act 1904 the Industrial Registrar referred questions to the court.

E. A. H. Laurie Q.C. and P. R. A. Gray, for the Airline Hostesses' Association, the Australian Council of Trade Unions and the Council of Australian Government Employee Organizations.

M. Harrison, for the Vehicle Builders Employees' Federation of Australia.

A. R. Castan, amicus curiae.

Cur. adv. vult.
Solicitor for the Airline Hostesses' Association, the Australian Council of Trade Unions and the Council of Australian Government Employee Organizations: Alan Boulton.
Solicitors for the Vehicle Builders Employees' Federation of Australia: M. Harrison & Partners. T. J. GINNANE

JUDGE1

OCTOBER 1.

The following written judgments were delivered.

BOWEN C.J. These proceedings were brought under s. 112 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") by the Industrial Registrar in referring a question of law for the opinion of the Federal Court. The question arose when the Airline Hostesses' Association, an organization of employees registered under the Act, applied under s. 139 (4) of the same Act to alter its rules. (at p215)

Before any rule change can be effected the Registrar must certify where his consent is not required that, inter alia, the alterations comply with the provisions of the Act. The proposed alterations relate to the election of holders of offices in the association. The basic question to be answered by this Court is whether the provisions of the Act permit a structure in an organization whereby an elected office holder may, by the rules of the organization at the time of his (or her) election, be, by virtue of that election, the holder of another "office" as defined under the Act. (at p216)
The proposed rules provide for a federal structure in the association. Each member is to belong to a State or Territory or overseas branch with its own committee of management and officers and which will be represented on the supreme governing body, the federal council. Under r. 21 the federal council has power, inter alia, to superintend, manage and control the association's affairs, property and funds, make, amend or rescind rules, and delegate such of its power as it thinks fit, save the power to amend or rescind rules, to the federal executive. Provision is made for a federal executive which is the committee of management responsible for control and conduct of the business and affairs of the association whilst federal council is not in session. The council is to meet annually whereas the executive must meet at least every four months. (at p216)
I turn to the form of the proposed rules. By r. 27 the federal council is to be composed of: "(a) the federal officers who shall be the federal president, the federal vice-president and the federal secretary; (b) branch delegates who shall be the president and secretary of each branch; (c) additional delegate or delegates from a branch or branches on the following basis:

Branch Membership Representative 200-399 1 400-599 2 600 and over 3" (at p216)

By r. 41 the federal executive will consist of the following: "(i) federal president; (ii) federal vice-president; (iii) federal secretary; (iv) the occupier for the time being of the position of branch president of each branch or her proxy." (at p216)

The federal president, federal vice-president and federal secretary as the "federal officers" of the association are to be elected for two years by secret postal ballot of all financial members of the association eligible to vote (r. 55). The branch presidents and secretaries are to be elected by all financial members of their respective branches (branch r. 2) as are the delegates to federal council (r. 28). (at p216)
The rules also provide for ultimate control of the decisions of the federal council (r. 38) and federal executive (r. 50) by a majority of the financial members of the association voting by plebiscite called on a motion of at least half the number of branch councils or five per cent of the financial members. (at p216)
It appears from the above that the three federal officers by virtue of their election are made members of the federal council (a policy/management body) and of the federal executive (the committee of management). Similarly, the branch president and secretary are ex officio members of the branch council (a branch committee of management) and federal council and the branch presidents also are members of the federal executive. (at p217)
In his reference, the Industrial Registrar drew the attention of the court to a number of provisions of the Act. Paragraphs (a) and (c) of s. 140 (1) of the Act read:

"(1) The rules of an organization -

(a) shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law;

(c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust." (at p217)

10. By s. 4 (1): "'Office', in relation to an organization or branch of an organization, means -

(a) the office of a member of the committee of management of the organization or branch;

(aa) the office of president, vice-president, secretary, assistant-secretary or other executive officer, by whatever name called, of the organization or branch;

(b) the office of a person holding, whether as trustee or otherwise, property of the organization or branch, or property in which the organization or branch has any beneficial interest;

(c) the office of a member of any conference, council, committee, panel or other body within the organization or branch which, under the rules of the organization or of the branch, is empowered to make, alter or rescind rules or to enforce, or perform functions in relation to the enforcement of, rules or to exercise any of the functions of management; and

(d) every office within the organization or branch for the filing of which an election is required to be conducted within the organization or branch." (at p217)

It is clear from the above that the federal officers in the proposed rules occupy more than one "office" as defined, as also do the branch presidents and secretaries. (at p217)

Section 132 (2) provides: "132. (2) The conditions to be complied with by associations so applying for registration and by organizations shall be as prescribed." (at p217)
The relevant conditions are those prescribed by reg. 115, the material portion of which is as follows:

"(1) The following conditions are prescribed conditions to be complied with by an association applying for registration, namely:

(d) the affairs of the association shall be regulated by rules . . . providing, in relation to the association, for -

(i) the election of -

(A) a committee of management of the association and of each branch of the association;

(B) officers of the association and of each branch of the association; and

(C) any conference, council, panel or other body (additional to the committee of management), which is empowered to determine policy or to exercise functions of management in the association or branch.

(2) The conditions specified in the last preceding sub-regulation apply in relation to organizations in like manner as they apply in relation to an association applying for registration as an organization." (at p218)

Section 133 (1) (a), in so far as it is relevant, reads:

"(1) In addition to the conditions referred to in sub-section (2) of section 132, the conditions to be complied with by . . . organizations include a condition that the rules of . . . organizations:

(a) shall provide for the election of the holder of each office within the . . . organization either by -

(i) a direct voting system; or

(ii) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system." (at p218)

In the recent decision of the Full Court of the Federal Court in Sherrif v. Townsend (1980) 48 FLR 20 the majority dicta expressed fully by Smithers J. considered that a member of an organization of employees elected to a designated executive office and acceding by virtue of the rules to the office of member of federal council had not been elected to the latter office in accordance with the Act. Smithers J. considered that the legislation envisaged "a separate election, direct or collegiate, for each office in the organization". He added that: "When a rule provides that a person elected to a particular office shall thereupon accede to another office the electorate is denied a choice as to whether it desires that that person shall hold that other office" (1980) 48 FLR, at pp 31-32. The implication is that each office in the exhaustive list of offices in s. 4 is separate and must be the subject of an election. In Sherrif v. Townsend this reasoning was not necessary for the ultimate decision because the rule in question was held on other grounds to be invalid. However, the analysis by Smithers J. raises important questions. (at p218)

At the hearing, counsel appeared on behalf of the Airline Hostesses' Association and was given leave to appear on behalf of members of the Australian Council of Trade Unions and the Commonwealth of Australia Government Employees' Organizations. Counsel was also granted leave to represent the Vehicle Builders Employees' Federation. The Registrar was not represented, the Crown did not intervene but briefed counsel to appear as amicus curiae to assist the court in some wider aspects and implications of the argument. (at p219)
It was submitted by counsel for the Airline Hostesses' Association that the repercussions of any decision requiring a separate election to each office as defined would be enormous. Not only would a great number of organizations find their rules suddenly invalid but such an interpretation could only mean that union members were entitled to elect a different person to each office. If such a situation occurred, organizations would find it almost impossible to maintain lines of communication within their federal systems and be unable to function efficiently as representative bodies. (at p219)
Whilst it is true that there could be great inconvenience to many organizations, the reference is on a question of law and it is necessary to look at relevant provisions of the Act in the context of the Act as a whole and the cases that have arisen. (at p219)
Looking at the matter in this way, I find myself unable to accept that the legislature intended that each "office" as defined should be the subject of a separate election. Further, I cannot agree that if the Act did require such an election it would be satisfied by a ballot paper enumerating a number of offices as a composite position for which nominated candidates were standing. If offices are necessarily separate, members must be able to nominate a separate candidate for each. (at p219)
I am unable to see that reg. 115(1)(d)(i) implies any notion of mutual exclusivity between offices. In fact, it seems to me to be simply grouping functions into the various classes such as one would need to find in a federal system. (at p219)
In the case of Bicknell v. Amalgamated Engineering Union (1969) 15 FLR 215 reg. 115(1)(d)(i) was discussed extensively along with s. 140, though no mention was made of the then current s.133. The court was there concerned with an organization the rules of which had undergone radical restructuring. In this reconstruction it was proposed that certain elected district secretaries be appointed as the first State secretaries for the period of time they still had left to serve in their previous elected offices. The rules under discussion were substantially the same as those presently before the court. It is apparent from the discussion (1969) 15 FLR, at pp218-219 that the court was fully aware that the duties of State secretary included that he be ex officio a member of State conference and State council. However, no point arose in that case as has arisen before us. (at p220)
There is no doubt that in compliance with reg. 115(1)(d)(i) the proposed rules provide for elected officers and committee of management at the federal and branch levels and for a policy/management body at the federal level. It is only by reference to the definition of "office" that one finds each of these functions referred to as "offices". (at p220)
The definition of "office" indeed is singularly unhelpful because of its intended exhaustive nature and the fact that it defines "office" by referring to "office". Furthermore, it appears that par.(d) of the definition overlaps with other paragraphs. (at p220)
Some support for the notion of separateness is said to arise from the use of the word "each" in s.133(1)(a) which was first introduced in 1973 and later amended in 1976. It reads that the rules "shall provide for the election of the holder of each office". Counsel for the various associations argued that the emphasis must be put on the election of the "holder", not the election to each office. On a consideration of the Act and cases I agree that this must be so. The terms of s. 133(1A) inserted at the same time as a new s.133(1) by Act No. 138 of 1973 also tend to support that view. This last consideration is not weakened by the deletion of s.133(1A) and the insertion of a new s.133(1)(a) by Act No.117 of 1976. (at p220)
The objects of the Act are enumerated in s.2. Among them are the following:

"(e) to encourage the organization of representative bodies of employers and employees and their registration under this Act; and

(f) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the Organization." (at p220)

Counsel took the court through the various stages of amendment to the parts of the Act with which we are concerned and it was noted that elections were not a feature until 1928. The problem of what actually constituted an election under the Act was solved in favour of including collegiate electoral systems in Steele v. Federated Ironworkers' Association of Australia (1944) 52 CAR 594. Such systems were common up to 1973, abolished and then reinstated in 1976. Until 1973 the section dealing with elections, s.70A, which was renumbered s. 133 in 1956, concentrated on secret ballots, absent voting and conduct of elections. It only applied to pars. (a), (aa) and (b) of the definition of "office" as it stood at the time, leaving the conduct of elections under par. (c) open. I do not think that before the 1973 amendment to s. 133, there was any question of a separate election for each office. (at p220)

I believe that the intention of the 1973 amendment including "each" in reference to office, was merely ensuring that the rules governing elections now applied to all the paragraphs in the definition of "office". This belief is reinforced on reading s.133(1)(da) where provision is made for postal voting in relation to "every election for an office within the association of a kind referred to in par. (a), (aa), (b) or (c) of the definition of office". There is no mention of "each" office, because par. (d) of this definition is not included. (at p221)
What must be kept constantly in mind is that organizations registered under the Act may represent many thousands of members all over Australia. These members must be represented democratically but also efficiently and because of the division of Australia into States and Territories, a federal system of representation would be normal. The courts have frequently considered various types of federal systems and from the cases it is clear that organizations are able to design specific structures with different checks and balances to cater for their own individual needs. The only parameters are those embodied in reg. 115 requiring election for a committee of management, various officers and any other policy-making or management body. As was said in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 FLR 72 per Smithers and Evatt JJ.: "A constitution suitable for one union may be unsuitable for another. . . . The rules must be designed to ensure stability in management and at the same time to avoid installing officers who cannot be removed. In the designing of rules appropriate for an organization of employees much must be left to the judgment of those who make the rules" (1978) 35 FLR, at p 81 , (And see generally Lovell's case (1978) 35 FLR, at pp 89, 98 and Wiseman v. Professional Radio and Electronics Institute of Australasia (1978) 35 FLR 24, at pp 32-35, 38-42). (at p221)
It has been held on a number of occasions that filling a casual vacancy by appointment is permissible in certain circumstances (Cameron v. Australian Workers' Union (1959) 2 FLR 45 ; Purse v. Amalgamated Society of Carpenters and Joiners of Australia (1952) 75 CAR 88 ; Watson v. Australian Workers' Union (1967) 10 FLR 347 ). Some associations have validly imposed length of membership requirements for office holders (Watson v. Australian Workers' Union; Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia) and in some cases federal representation for smaller States greater than would be justified on a mere consideration of their size, has been permitted, where there was provision in certain circumstances for a plebiscite (Crealy v. Commonwealth Bank Officers' Association (1957) 1 FLR 153 ; cf. McLeish v. Kane (1978) 36 FLR 80 ; Boland v. Munro (1980) 48 FLR 66 ). (at p222)
In Crealy's case (1957) 1 FLR, at pp 157-158 the court adopted the opinion of O'Mara J. in Thornton v. Mackay (1945) 56 CAR 561, at p 590 in relation to the scope of an organization under the Act to alter its rules: "The nature of the provisions to be made for the election of committees and officers is primarily a matter for the members of the association to determine having regard to the nature of that body and the circumstances which exist in relation to its membership. The same is true of the provisions for the control of such committees by members of the association." (at p222)
In the case of Bicknell v. Amalgamated Engineering Union (1969) 15 FLR 215 the court considered that, in the circumstances, appointment of elected district secretaries to be the first State secretaries was permissible because the rules as a whole provided for the election of persons and bodies referred to in reg. 115(1)(d). Kerr J. commented that whether rules provided for the election of offices was "a matter of degree to be judged in all the circumstances of the particular union and its rules" (1969) 15 FLR, at p 230. (at p222)
It was submitted by counsel that each organization should be able to determine its structure by providing for composite offices in the rules so long as the holder of those offices were elected. Thus, the rules could provide that the position of branch president carried with it certain functions such as members of the branch council, federal council and federal executive. Counsel appearing as amicus curiae pointed out that, if carried to extremes, this could be dangerous. The rules could give not only executive officers ex officio appointments, but officers whose functions would normally be considered narrow. Even if this were possible, I do not doubt that s. 140(1)(c) and s. 139(4) could be used against it effectively to prevent an inappropriate conjunction of positions. (at p222)
One must look again to the definition section of the Act; to the definitions of "direct voting system" and "collegiate electoral system". In conjunction with these one must also read s.4(5). The definition of direct voting system in s.4(1) is as follows: "'Direct voting system', in relation to an election for an office in an organization, means a method of election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote." (at p222)
Thus, each office must have an appropriate electorate depending upon the nature of the office. This does not seem to me to preclude a branch electing a president both as its head and its representative at the federal level. The nature of the office is branch executive and delegate to federal council and executive. In a federal system branches' interests must be represented. Thus, the nature of an office in a federal system will often require a branch electorate because the functions are basically branch representation though the elected officer sits in a federal governing body. Indeed, I would consider that rules requiring a branch delegate to the federal council or executive to be elected by the whole federal membership might well be held unreasonable in terms of s. 140(1)(c) (cf. Allen v. Townsend (1977) 31 FLR 431, at p 471 ). (at p223)
Moreover, the Act specifically provides that in relation to election for an office in an organization a one-tier collegiate electoral system is permissible. By s. 4(1) a collegiate electoral system is defined as follows: "'Collegiate electoral system', in relation to an election for an office in an organization, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from the persons elected at the next preceding stage." Section 4(5) expands this definition: "For the purposes of the application of the definition of 'collegiate electoral system' in sub-section (1) in relation to an election for an office in an organization, an electoral system that otherwise complies with that definition shall be deemed to comply with that definition notwithstanding that the persons comprising a body of persons by and from whom persons are elected at any stage subsequent to the first stage include persons (not exceeding in number 15 per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may include the office to which the election relates) but are not members of that body by virtue of an election in accordance with that definition, being persons each of whom has held such an office (whether the one office or not) at all times since being elected to such an office under a collegiate electoral system, or a direct voting system, as defined in sub-section (1)." (at p223)
The Act recognizes that persons elected to particular offices may be ex officio members of a body "by and from whom persons are elected". This body is not called a committee of management and, indeed, if it fulfilled simply the function of an electoral college its members could not be said to hold ex officio "offices" on such a body. However, as I have previously stressed, the Act envisages that organizations have a great deal of latitude in determining their structure. There is no indication that a body by and from whom persons are elected should not be a committee of management or other policy or management body. Indeed, it seems to me that the section is directed at a body which already exists and functions apart from any electoral college activity. It would have been simple, otherwise, to keep to the definition of "electoral college" as it stands. Moreover, reg. 115 requires that each organization and branch of an organization provide for the election to any policy-making and management bodies as well as a committee of management. (at p224)
I consider that implicit in s. 4(5) is a recognition of a fairly typical organizational structure whereby some elected officers by virtue of their election sit in a body which functions not only as an electoral college but also as a body within one or other of pars. (a) and (c) in the definition of "office". If this is the case, there can be no objection to such ex officio membership of management and policy bodies in a union, the rules of which provide only for direct election. (at p224)
On this basis a differentiation can be made between office holders: those who are primarily elected to a body and those who are primarily elected to an executive position. Those in the lattter category may, under the rules, be member of a body. I do not think it oppressive, unreasonable or unjust under s.140(1)(c) in this case that federal officers be, by their election to those offices, members of the federal council and the executive. Indeed, rules which provided that the federal president should not be a member of council or the executive unless successful at a separate election for such membership, would necessarily give members the option to exclude the president from those bodies. I consider such rules might well be held to be unreasonable in terms of s. 140 (1) (c). (at p224)
The general tenor of the Act is to provide representative bodies for the purposes of keeping industrial peace. The reality is a federal system and vast and far flung memberships. The whole financial membership elects four persons as its federal officers to handle day to day business and report to the larger federal council. The branches are ensured of representation at all federal levels by persons elected both specifically to council and generally as chief executives at the highest level. The extent of the offices are explained in the rules which are readily available to all members. (at p224)
I would answer the questions of the Industrial Registrar as follows: 1. Do the rules set out above provide for the election of the holder of each office (as defined in s. 4) within the organization as required by s. 133 (1) (a) and reg. 115 (1) (d) (i)? Answer: Yes. 2. In particular: (a) Do rr. 27 and 41 contravene s. 133 (1) (a) and reg. 115 (1) (d) (i) in so far as those rules appear to provide that persons elected to be federal officers shall, without any further election, also be members of the federal council and federal executive? Answer: No. (b) Does r. 27 contravene s. 133 (1) (a) and reg. 115 (1) (d) (i) in so far as that rule appears to provide that persons elected to be branch president and branch secretary shall, without any further election, also be members of the federal council? Answer: No. (c) Does r. 41 contravene s. 133 (1) (a) and reg. 115 (1) (d) (i) in so far as that rule appears to provide that a person elected to be a branch president shall, without any further election, also be a member of the federal executive? Answer: No. 3. Do the said rules satisfy the relevant requirements of pars. (a) and (c) of s. 140 (1)? Answer as to (a): Yes. Answer as to (b): There is nothing before us to suggest the rules do not satisfy par. (c). (at p225)

JUDGE2

SMITHERS J. Ever since 1928 it has been the law, as embodied in reg. 115 (1) (d) (i) and its precursors that the affairs of an organization registered under the Conciliation and Arbitration Act 1904 (Cth), ("the Act") should be regulated by rules providing for the election of a committee of management of the organization and of its branches and of officers of the organization and of its branches under a system of voting which makes adequate provision for absent voting. (at p225)

In 1952 by S.R. No. 39 of 1952 it was enacted that the rules of an organization should provide for the election of certain other bodies of an organization and the law was in the form, namely that the affairs of an organization should be regulated by rules providing for,

"(i) the election of -

(A) a committee of management of the association and of each branch of the association;

(B) officers of the association and of each branch of the association; and

(C) any conference, council, panel or other body (additional to the committee of management), which is empowered to determine policy or to exercise functions of management in the association or branch." (at p225)

In 1956 by S.R. No. 60 the earlier regulations were all repealed and reg. 115 (1) (d) (i) was enacted in the form in which it now is. Regulation 115 (1) (d) (i) was promulgated in S.R. No. 60 of 1956. Since 1952 the substance of the relevant requirements has never been changed. Accordingly the critical question in this case is whether the rules of the Airline Hostesses' Association ("the association") do provide for the election of a committee of management. They do provide for the election of certain members of a committee of management, (the federal council). As to the other members of the federal council, they are persons who have been elected as officers of the organization, namely as federal president and vice-president and secretary and the president and secretary of each branch. Rule 27 provides that the federal council shall be composed of those officers and branch delegates. (at p225)

The contention is that these provisions are rules providing for the election of a committee of management within the meaning of the provision of reg. 115 (1) (d) (i) that the affairs of the organization shall be regulated by rules providing for the election of a committee of management of the organization and of its branches and the other categories of positions referred to in pars. A, B and C of that regulation. (at p226)
In the course of the debate on the straightforward question as to whether this contention is sound, the view has been put that the provisions of reg. 115 (1) (d) (i) are in some way qualified by s. 133 (1) (a) of the Act. I think it appears on examination that that section does not play a significant part in resolving the basic question whether the rules of the association really do provide for the election of a committee of management. The better view in my opinion is that the requirement that the rules shall provide for the election of a committee of management is to be found in reg. 115 (1) (d) (i) and that that requirement is unaffected by the provisions of s. 133 of the Act, and that it follows that the requirement that rules shall provide for election of any position referred to in pars. A, B and C of reg. 115 (1) (d) (i) is unaffected also by the definition of "office" in s. 4 of the Act. The matter depends on the construction of s. 133 of the Act. (at p226)
That section is, I think, really concerned to specify particular conduct to be observed in the carrying out of certain organization elections, in particular elections for "offices" in the organization and thus in elections provided for in rules complying with the provisions of reg. 115 (1) (d) (i). Those requirements include the conducting of the elections, by either a direct voting system, or a collegiate electoral system, by a returning officer who is not an officer or employee of the organization, by secret ballot with provisions for absent voting and otherwise in a manner to be laid down. (at p226)
Section 133 as at present in force follows various statutory provisions all of which have been concerned to require the making of rules laying down requirements to be observed in the conduct of elections in an organization. In each of those statutory provisions it is expressly stated that the requirements as to the making of rules as specified therein are "in addition to" the conditions to be observed by organizations as specified in what is now s. 132 (2) of the Act. That section provided that the conditions should be as prescribed. The current relevant prescription is reg. 115 (1) (d) (i) and as mentioned above previous prescriptions have so far as relevant been in substantially similar terms. (at p226)
The first of those statutory provisions was s. 9 of Act No. 18 of 1951 the major import of which was to introduce voting by secret ballot in elections in respect of certain offices, namely those within pars. (a), (aa) and (b) of the definition of "office" as it then stood. This provision became s. 70A of the Act. The next statutory provision was the introduction by s. 52 of Act No. 138 of 1973 of s. 133 of the Act, the major import of which was to introduce direct rank and file voting in elections for all offices. Section 133 of the Act in its present form was introduced by s. 4 of Act No. 117 of 1976. It enacts that rules shall provide for the election of the holder of each office within the organization, either by a direct voting system or a collegiate system, and provides for certain other practical matters such as secret ballots and absent voting and the conduct of the ballot. But the introductory words of the section specify that the provisions in it are "in addition to" those conditions to be complied with by organizations pursuant to s. 132 (2). Those conditions are those prescribed in reg. 115 (1) (d) (i). Thus the requirement that rules shall provide for elections for the positions referred to in pars. A, B and C of reg. 115 (1) (d) (i) was in force prior to the enactment of s. 133. Section 133 does not purport to qualify that requirement. On the contrary, it confirms it. It makes the rules to be made pursuant to it concerning the conduct of elections applicable to elections for the holding of which rules made pursuant to reg. 115 (1) (d) (i) are to provide. In Sherrif v. Townsend (1980) 48 FLR 20 (V. 12 of 1979) I said that s. 133 assumed that there will be elections pursuant to rules made under reg. 115 (1) (d) (i). But it does more than that. It refers to the conditions already provided for in s. 132 and enacts that organizations shall comply with certain other conditions "in addition to" those already applicable pursuant to s. 132 (2) which are of course those set out in reg. 115 (1) (d) (i). It is not going too far, therefore, to say that s. 133 is a recent statutory confirmation of the continuing operation of the conditions prescribed in reg. 115 (1) (d) (i). Section 133 (1) (a) is not to be construed as enacting the provisions of reg. 115 (1) (d) (i) all over again. It takes the situation existing under reg. 115 (1) (d) (i) as it finds it, namely that elections for the positions referred to in reg. 115 (1) (d) (i) are already provided for, and provides for the making of further rules about the method of conducting such elections. Certainly it requires such "conduct rules" to be made for elections for holders of each office. But in the context, that would appear to mean each office in respect of which the provisions already required to be in the rules require an election to be held. If, however, the section does require the making of rules for holding any elections additional to those required by rules made in accordance with reg. 115 (1) (d) (i), it would not take away the operative effect of that regulation. And it is to be noted that the positions comprised in pars. A, B and C of reg. 115 (1) (d) (i) would comprise practically all, if not all, of those specified in the definition of "office" in s. 4 of the Act. But the manifest purpose of s. 133 enacted in 1976 is to permit collegiate elections rather than require elections in respect of offices, if there be any, beyond those comprised in pars. A, B and C. In any event the duty imposed on organizations by reg. 115 (1) (d) (i) to provide for the election of a committee of management persists alongside whatever construction of s. 133 is adopted. And the same may be said in relation to the former s. 70A of the Act and in relation to s. 133 in the form in which it stood as enacted in 1973. (at p228)

The issue in this case is whether rules which provide for an election to one of the positions in an organization which are referred to in par. B of reg. 115 (1) (d) (i) and also provide that the person elected to that position accedes, ex officio, to another position, namely a position within the scope of par. A of the regulation, can be said to be rules which provide "for the election" of a person to fill that latter position. When reg. 115 (1) (d) (i) requires that there be rules providing for the election of a committee of management it is necessarily to be construed as requiring that there be rules providing for the election of each member of a committee of management. The question is whether a rule which provides for the election of officers such as secretary or a trustee and goes on to provide that the persons elected as secretary of trustee shall accede to the position of member of the commitee of management can be said to be rules which provide for the election of a committee of management, or putting it distributively, the election of the members of a committee of management. Or, putting the matter in reverse, could it be said that rules which provided for the election of the members of a committee of management and went on to provide that certain of those members should accede, ex officio, to positions of secretary or president, provided for the election of officers of the organization? Or could it be said that rules which provided for the election of vice-president and went on to provide that the person elected should accede, ex officio, to the office of secretary, provided for the election of officers of the organization? (at p228)
To my mind the answer to all these questions is in the negative. It is a question of construction of reg. 115 (1) (d) (i). It seems to me that it would be difficult to find words to provide with greater clarity that in respect of each of the positions within the categories specified in pars. A,B and C of the regulation the rules must provide for the filling thereof by an election for that position. In other words a procedure must be provided for ascertaining in respect of each position the authentic choice of the electorate of one of the candidates for that position. The procedure must be such that as a result thereof it can be said that there has been in fact, an election for the position. (at p228)
In a sense, therefore, there must be a separate election in respect of every position for which the rules must provide for an election. That may not mean that a procedure may not be devised for electing one person to fill two positions. If that be done there has been a choice in respect of each of the positions, albeit a limited choice. But that procedure may constitute an election satisfactory for the purpose of reg. 115 (1) (d) (i). Similarly it does not mean that elections for multiple positions may not be conducted on a common ballot paper. (at p229)
But it does mean that after the specified procedure has been carried out it must be possible to say of a candidate acquiring a particular position, that he acquired it by election. Accordingly, a rule which says, in effect, that there will be no election for a particular position, such as membership of the committee of management, would not comply with reg. 115 (1) (d) (i). And it would not cure the situation to provide that a person elected to, say, the position of secretary shall be a member of the committee of management. (at p229)
The first question which arises is whether the rules of the association, the terms of which are sufficiently indicated above, provide for the election of a committee of management in accordance with reg. 115 (1) (d) (i). When the regulation prescribes that the rules shall provide for the election of a committee of management it is manifest that what is intended is that the rules shall provide for the election of members of the contemplated committee and of all the members thereof. As was said by Kerr J., as he then was, in Bicknell v. Amalgamated Engineering Union: "This regulation means that the rules must provide for the election of the committee of management, conferences, councils, panels or other bodies referred to and of the officers referred to. The rules must provide for the election of all members of these bodies and all officers" (1969) 15 FLR, at p 228. (at p229)
It is necessary then to consider what is involved in an election. Reference to Halsbury's Laws of England, vol. 15, p. 551 et seq., and to May's Parliamentary Practice and to various decisions in this Court confirms that the concept of conducting an election extends to the initiating process such as the issue of the writ calling for nominations and their scrutiny, as well as the actual process of arranging for and receiving the votes and declaring the poll. See for instance Friend v. Barnes (1969) 15 FLR 184, at p 201 et seq ; Jones v. Farrow (1971) 20 FLR 73 and Re Election for Office in Australian Institute of Marine and Power Engineers (1973) 20 FLR 407. Express authority is lacking as to what precise steps are required to be taken to ensure that those concerned in an election both as nominating candidates and electors are apprised of the positions or offices with respect to which they are invited to nominate or to vote. But there can be little doubt that it is essential that in calling for nominations and preparing ballot papers steps must be taken to notify those concerned as to what office or position it is with respect to which, the election is to be held. When, therefore, reg. 115 (1) (d) (i) refers to a rule providing for an election with respect to a position or office, it must be taken to be referring to an election in which those basic requirements are observed. (at p230)
Accordingly what is contemplated by reg. 115 (1) (d) (i) is that the rules of an organization shall provide for the election of: (a) the members of the committee of management of the organization and each branch of the organization at elections in which those concerned will be informed that the position or office in the election in which they are invited to participate is the position or office of member of the committee of management; and (b) officers of the organization and of each branch thereof at elections in which those concerned will be informed as to the office or offices in respect of which such elections are being held. (at p230)
The rules of the association do provide for the election of federal offices identified as the federal president, vice-president and secretary. But so far as the committee of management is concerned they provide for the election only of certain branch delegates, described as additional delegates, from branches, the number of whom in respect of each branch depends upon the numerical strength of the branch. According to r. 27 the other five members of the federal council are the federal president, vice-president and federal secretary and the president and secretary of each branch, the last two of whom are described as branch delegates. The rule purports to confer membership of the federal council upon each of those five officers and to do so by reference to their holding the positions mentioned. The rules do not provide for the election of those officers to membership of federal council. Accordingly it would seem that the rules fail to comply with the requirements of reg. 115 (1) (d) (i) in that they fail to provide for the election of a committee of management. They provide for the election of part only of a committee of management. (at p230)
It is put that so far, for instance, as the federal secretary is concerned the requirements of reg. 115 (1) (d) (i) are satisfied by the provision made in federal r. 55 for the election of the federal secretary and the provision of federal r. 27 that the federal council shall be composed of certain designated offices and delegates, one of which offices is that of federal secretary. It is said that the electors know, or must be taken to know the rules, and therefore know when they are voting in an election for federal secretary that they are also voting in respect of the accession of the person elected in that election to the position or indeed the office of federal councillor. But I think the better view is that what the informed voter knows or is deemed to know is more accurately expressed by saying that he knows that the person elected in the ballot relating to the office of secretary will without further election accede to the office of the federal councillor. He knows that there is to be no election at which any members will be asked to vote in respect of the position of one federal councillor, namely, that which will be assumed, ex officio by the federal secretary. And the effect of r. 27 is to create a position and office of federal councillor which is reserved for the person who may be elected federal secretary. That person will accede thereto not as the result of being elected thereto but as the result of being elected to an entirely different position and office. (at p231)
This process would appear to be the antithesis of the process of electing a member of the council. By it a person becomes a member of council without facing an election in respect of that position and that occurs because the rules fail to provide for the election of every member of the committee of management and thereby fail to provide for the election of a committee of management.
CONSIDERATIONS TO THE CONTRARY (at p231)
There are a number of considerations by reference to which it is urged that what seems a very plain provision should be qualified to the extent that at least with respect to the federal president, vice-president and secretaries rules providing for their appointment to the position of member of the committee of management without election to that position are to be considered, in some way, as rules providing for election to that position. There is said to be a generally accepted view that organizations are entitled to arrange their governing and administrative structure in a way suitable to themselves. Evatt J. and I in Lovell v. Federated Liqour and Allied Industries Employees' Union of Australia (1978) 35 FLR 72 said: "A constitution suitable for one union may be unsuitable for another. . . . The rules must be designed to ensure stability in management and at the same time to avoid installing officers who cannot be removed. In the designing of rules appropriate for an organization of employees much must be left to the judgment of those who make the rules" (1978) 35 FLR, at p 81. And this is true, as is, with respect, what O'Mara J. said in Thornton v. Mackay: "The nature of the provisions to be made for the election of committees and officers is primarily a matter for the members of the association to determine having regard to the nature of that body and the circumstances which exist in relation to its membership. The same is true of the provisions for the control of such committees by members of the association" (1946) 56 CAR 561, at p 590. But this freedom, must be exercised in accordance with the law, or as O'Mara J. pointed out, subject to the prescribed conditions. And it is no real fetter upon it to have rules providing that a committee of management shall be elected. And it can be done in appropriate cases by election even by the collegiate system. (at p232)
So far as a president of the organization is concerned it is usual and desirable for that officer to be a member of and preside at the meetings of the governing bodies thereof and the rules of the association so provide. There is much to be said for the view that the person elected president occupies two positions in the categories set out in pars. A, B and C of reg. 115 (1) (d) (i). And it is suggested that if he has to stand for seperate elections for each position he might fail to be elected for, say member of the committee of management, and would then be a presiding officer without a vote. However, I think the better view is that election to, and occupany of, the position of president incorporates membership and presidency of the committee of management and that the presidency is one position with various aspects. Each may be an office. But whether they are offices or not is really not to the point, save that if it were necessary to have seperate elections each must comply with the conditions enacted by s. 133 of the Act. The definitions of the expression "president" to be found in the Oxford English Dictionary and set out hereafter, support this view of the president's position. But if this be not so and an election for each of the positions is necessary by law, the situation would be unusual but far from unworkable. If it were the will of the electorate that the president be not automatically a member of the committee of management that would be at least the working of full membership participation. If, as I think is the case, the election for the position of president is in form and substance an election for a position in which membership of the committee of management is incorporated, both by the rules of the association and according to the ordinarily held concept of the position, then the one election is an election for each office within the concept of the presidency. (at p232)
It was said by counsel supporting the proposed rules of the association that each organization should be able to determine its structure by providing for composite offices in the rules so long as the holders of those offices were elected. Thus the rules could provide that the positions of branch president and certainly other officers such, no doubt, as vice-president, secretaries and assistant secretaries and possibly trustees or organizers carried with them membership of the federal or branch councils. The notion that these offices might have membership of federal or branch councils so conferred upon them was based on the provision in s. 133 (1) (a) that rules required to be made pursuant to that section should provide for the election of the holder of each office within the organization. But this section is not directed to such a notion. It is directed to the making of rules providing "for the election of the holder of each office within the organization by" a particular type of voting method and by secret ballot and subject to other requirements. It is not directed to the making of rules providing what elections shall be held. That has been done by reg. 115 (1) (d) (i). But that regulation gives no guidance as to what particular mode of election is to be adopted in respect of the election of the holder of each office within the organization. And that gap is filled by s. 133. (at p233)
The language used is hardly adequate to indicate that notwithstanding that the whole of s. 133 is additional to reg. 115 (1) (d) (i), through s. 132, it nevertheless authorizes rules which will provide for a kind of blanket election to one office, which will remove the necessity for an election in respect of any other office federal or branch. One would feel that the notion that election for one office will suffice for every office would be a provision contrary to the plain words of reg. 115 (1) (d) (i), and would have to be found in equally plain words elsewhere, and certainly not in a provision such as s. 133 which is expressly declared to be introducing conditions additional to those in reg. 115 (1) (d) (i). But the notion must be regarded as contrary to the chief objectives of the Act (see s. 2, particularly s. 2 (f)), and to the whole thrust of the provisions for elections in s. 132, s. 133, reg. 115 (1) (d) (i) and regs. 136B and 136C and Pt IX of the Act. And yet acceptance of this notion would seem to be vital to the case put forward on behalf of those supporting the proposed rules for the association. Mr. Castan who appeared as amicus curiae pointed to the suprising consequences of accepting the view that election of one office was a sufficient foundation for appointment to another. He pointed out also that if the notion actually represents the law as established by statute, even its more bizarre effects could hardly be regarded as contravening the provisions of s. 140 (1). (at p233)
It is more important to observe that although acceptance of the notion involves that a person elected to one position may on that ground be appointed to another, its critical effect for current purposes, is to render reg. 115 (1) (d) (i) inoperative to the extent that persons elected as officers are appointed to the committee of management. It would permit creation of a committee of management to which no member was elected. This is in no way far fetched. As appears from the reasons for judgment in Sherrif v. Townsend (1980) 48 FLR 20 the committee of management of the Victorian branch of the Vehicle Builders Employees' Federation of Australia is, according to the union rules, comprised of sixteen persons being the elected holders of offices other than membership of the committee, including a number of elected organizers, and only four persons elected to that committee. If the notion referred to above be accepted, then total elimination of elected members from such a committee would be lawful. And, of course, a situation where the committee elects the officers and the officers become ex officio members of the committee, as is the case in some organizations, is calculated to promote continuance in office of particular officers, and a kind of official inbreeding seriously to the prejudice of democracy and member participation. It is difficult to see how rules permitting this state of affairs or anything approaching it could possibly be thought to comply with the requirement of reg. 115 (1) (d) (i) that they must provide for the election of a committee of management. (at p234)
It has been argued that a system under which an election is held for one candidate to fill two positions is unacceptable because it deprives members of the opportunity to stand for and vote in respect of each of the positions. But the actual removal of the necessity to hold an election at all for a particular position or office by appointing to it a person elected to another office is a much more shattering blow to the members' right to stand for office and to the notion of full member participation in union affairs. (at p234)
The rules of the association differ from those before the court in Bicknell v. Amalgamated Engineering Union (1969) 15 FLR 215. In that case apart from the temporary appointments of the officers approved by the court the rules did provide for the election of such officers and it was not unreasonable to say that in respect of the positions of those officers, the rules did, in a general sense, provide for election. But the same cannot be said concerning the positions of members of the committee of management in the Airline Hostesses' Association. (at p234)
It is of course appropriate that there should be branch representation in the federal governing bodies and that delegates elected by the branches should be members thereof. But to achieve this there is no necessity to adopt an interpretation of reg. 115 (1) (d) (i) which would permit appointment by rule instead of election. And indeed a provision in a rule that officers elected to branch offices accede ex officio to the position and office of federal councillor would seem to offend the provision of reg. 115 (1) (d) (i) in a very direct way. Election for branch representation on federal council is the democratic way. Appointment of officers in quantity may well lead not to the reflection of the will of the members, but to rule by officials. (at p234)
The view urged appears to be based on the significance said to lie in the use of the word "holder" in s. 133 (1) (a). But this is to attribute a meaning to that word out of harmony with the statutory expression in s. 133 that the conditions enacted by it are additional to those already imposed by s. 132 (2) as implemented by reg. 115 (1) (d) (i). This is apparent if the provisions of reg. 115 (1) (d) (i) and s. 133 are read together. For purposes of construction it is necessary to do this, and the two, put together read in sequence as follows:

The affairs of the organization shall be regulated by rules providing in relation to the organization for -

"(i) the election of -

(A) a committee of management . . .

(B) officers of the association . . .

(C) any conference, council, panel. . . ." (at p235)

And in addition, by rules which -

"(a) shall provide for the election of the holder of each office within the association or organization either by -

(i) a direct voting system; or

(ii) a collegiate electoral system . . .

(b) shall provide for the conduct of every such election . . .

(c) shall provide that, if the returning officer . . .

(d) shall provide that every such election shall be by secret ballot with provision for -

(i) absent voting;

(ii) the manner in which persons may become candidates for election;

(iii) the duties of returning officers;

(iv) the conduct of the ballot;

(v) the appointment, conduct and duties of scrutineers . . .

(vi) the declaration of the result of the ballot." (at p235)

And so far as the word "holder" is used in s. 133 (1) (a) in conjunction with the word "office" it is to be noted that since the introduction of the definition of office in the 1949 use of the expression "election of the holder of each office" is a convenient way of referring to the elections to be held pursuant to rules to be made under reg. 115 (1) (d) (i). The circumstance that the positions comprised in pars. A, B and C of reg. 115 (1) (d) (i) are or are not "offices" in accordance with the definition in s. 4 of the Act has no relevance to the duty of the organization to have rules for the election of holders of those positions as required by reg. 115 (1) (d) (i). That duty existed long before the definition was introduced into the Act. (at p235)

The main contention on behalf of the parties supporting the proposed rules of the association, appears to depend on the use of the expression "holder" of each office. It is from this, as I understand it, that the notion is said to arise that once a person has been elected to one office he is qualified to be appointed by rules to any other office. The argument involves the proposition that to the extent that rules provide that once persons have been elected to particular offices, for instance, offices not being those of members of the committee of management, elections need not be held for positions on the committee of management. And of course this necessarily goes further. It would appear to be in the teeth of the requirement that the affairs of the union shall be regulated by rules providing for the election of a committee of management. And it is put that the view arises out of the use of the expression "holder" of each office, rather than, for instance, "for each office", "in respect of each office", or "to each office" or some other expression of that nature. In my opinion the view contended for does considerable violence to the plain requirement of reg. 115 (1) (d) (i) and indeed of s. 133 itself. To achieve such a result plain words would be required. To my mind if the provisions of s. 133 are read in conjunction with reg. 115, as set out above, it is inevitably seen that no such violence is intended. On the contrary as it appears to me the whole thrust of s. 133 is to assert the intention of Parliament, not only that elections be provided for in respect of the positions referred to in reg. 115 (1) (d) (i), as required by s. 132, but that those elections be conducted under the strict conditions provided by s. 133 to ensure the fair and regular expression of the opinion of the electorate in relation to the election of the holder of every office. It would be strange indeed to construe the section as a provision authorizing a union, by its rules, to escape the requirement of holding elections for particular offices by the simple expedient of appointing thereto persons who have been elected to some other office. (at p236)
Section 4 (5) of the Act which was introduced by Act 117 of 1976 was inserted to permit the election of a member to an office by a collegiate body some of the members of which were not elected to the offices entitling them to membership of that body by a direct voting system. From the reference in the section to an officer holding an "office entitling him to membership" of the collegiate body, and the fact that the collegiate body might be identified as a committee of management, it is arguable that there is an implied statutory recognition that there may be a holder of an office not being a member of the committee of management by virtue of election by direct voting system but whose office entitles him to such membership and that, accordingly, the plain terms of reg. 115 (1) (d) (i) must be qualified in some way. The precise modification is unstated. (at p236)
But the situation envisaged is one in which the person holds the relevant office, presumably by a collegiate election, and that that office entitles him to membership not to a body of the organization such as a committee of management, but to "a body of persons" forming an electoral college. And this form of words reflects the primary concept of collegiate body to be found in the definition thereof, namely a group of officers. I would think, as a matter of construction, if a relevant college were referred to as a committee of management it would, for the purpose of the collegiate electoral system, be in substance but a body of persons and to be treated as such. In addition the situation described would in any event, arise in cases where a president or vice-president held office other than by direct vote, and those offices were included in the category of offices the holders of which were members of the college. Also the definition of collegiate electoral system in s. 4 and s. 4 (5) being but the instrument of s. 133 (1) (a) which commences with a recognition, and indeed confirmation, of the continuing operation of reg. 115 (1) (d) (i), it would require clear and unequivocal expressions to operate to qualify the requirements of the regulation. Accordingly, in my view, the provision referred to is not to be interpreted as giving rise to an implication that the provisions of reg. 115 (1) (d) (i) do not operate according to their plain meaning. (at p237)
The effect of s. 4 (5) was not argued at the hearing of this matter and the decision in R. v. Dunphy; Ex parte Maynes (1978) 139 CLR 482 was not referred to. The construction of s. 4 (5) was discussed in that case. But the question of its possible influence upon the meaning and operation of s. 132 and reg. 115 (1) (d) (i) or the possible conflict between it and s. 132 and that regulation was not the subject of discussion therein, that matter not having been raised. Also in that case rules resembling those proposed for the Airline Hostesses' Association were examined and found not to offend s. 133, but the question whether they complied with reg. 115 (1) (d) (i) was not discussed. That matter had not been raised. (at p237)
There are numerous decisions which have dealt with issues concerning union rules, where, although the point was not taken, it was clear that such rules purported to confer the office of member of a committee of management upon persons who had been elected to other offices including other than that of president. And of course a large number of organizations have such rules and have had them for a long time. So far as the decided cases are concerned it would seem that until some remarks of my own appeared in Egan v. Maher (No. 1) (1978) 35 FLR 197 , the problem associated with such rules had escaped judicial comment. What is more important is that it would appear that before Sherrif v. Townsend (1980) 48 FLR 20 in this court relief had never been sought, on the ground, that because of reg. 115 (1) (d) (i) such rules were invalid or defective. When in that case relief was claimed on that ground the court was divided in opinion, the majority holding that the rule in question was invalid. However in that case the relief granted was also supported on another ground. Bicknell v. Amalgamated Engineering Union (1969) 15 F.L.R. 215. was a case in which rules providing for appointment of branch secretaries on a temporary basis to meet a special situation were held to be valid. It was held that such rules did not contravene the provisions of reg. 115 (1) (d) (i). (at p238)
For present purposes the importance of the decision is that the branch secretaries whose appointment was held to be valid were officers in respect of whom it was contemplated by the rules that they would, by virtue of holding the office of secretary, be members of State conference and State council. No suggestion was made that this factor introduced invalidity in the rules or that that factor had any relevance to the matter in issue, namely whether temporary appointments might lawfully be made to the offices of secretary, and it was not treated by the court as having any significance, it was simply not raised or adverted to. The matter did have some relevance to the decision as the nature of the functions of the branch secretaries was a matter taken into consideration by the court. Netherless the most that can be said of the decision is that it was assumed by the court that the officers in question would be members of the State conference and council and that that matter was of no significance to the issues before it. Much the same. I think can be said of the case of Steele v. Federated Ironworkers' Association of Australia (1944) 52 CAR 594 where rules having similar features were the subject of consideration. No suggestion was made that the rules were invalid on the ground mentioned and the court did not advert to the possibility. Comments to similar effect may be made in respect of other cases, including Crealy v. Commonwealth Bank Officers' Association (1957) 1 FLR 153 ; Mackenzie v. Administrative and Clerical Officers' Association, Commonwealth Public Service (1962) 5 FLR 342 ; Egan v. Maher (No. 1) (1978) 35 FLR 197 and McLeish v. Kane (1978) 36 FLR 80. But in no decision has the point in issue in this reference been taken or come up for decision. It is correct to say therefore that it has been commonly and tacitly assumed by organizations and in judicial proceedings, that appointments of officers, such as presidents, vice-presidents, secretaries and assistant secetaries and sometimes organizers as members of a committee of management were not irregular. Accordingly that position might be accepted, were it not that "the judicial mind" when, as in Sherrif v. Townsend (1980) 48 FLR 20 and in this case, is directly faced with the problem, "reaches a clear conviction that consistently with (the law) the validity thereof cannot be sustained" see R. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. For the foregoing reasons I have reached such a conviction. (at p238)
It is for Parliament to say in what cases elections shall be held. The holding of elections is part of the process of full participation by members in union affairs which Parliament has declared to be of great importance. If the provisions laid down by Parliament are to be relaxed that is a matter for Parliament itself.
GENERAL (at p239)
In the observations above, I have used terms which treat the federal council as the committee of management of the association. It may be that the federal executive conforms more to the concept of a committee of management. However, even if the federal council be not technically a committee of management, the substance of the issue arising under the first question does not change, because it is certainly a panel which is empowered to determine policy within the meaning of reg. 115 (1) (d) (i) c. (at p239)
It is to be noted that so far as it uses the expression "election of the holder of each office" s. 133 (1) (a) enacted in 1976 is in the same terms as s. 133 (1) (a) enacted in 1973 by s. 52 of Act No. 138. It is to be noted also, having regard to the introduction of the definition of "direct voting system", the terminology of s. 133 (1) (a) of 1976 reflects precisely the terminology of s. 133 (1) (a) of the Act of 1973 in respect of that expression. And it is of interest to note that the precursor of s. 133 (1) as in force when the 1973 Act became law was s. 70A of the Act introduced by s. 9 of the Act No. 18 of 1951 in the following form, namely:

"70A. (1) In addition to the conditions referred to in sub-section (2) of the last preceding section, the conditions to be complied with by associations applying for registration as organizations, and, subject to this section, by organizations, include a condition that the rules of the association or organization relating to an election for an office in the association or organization or in a branch of the association or organization (being an office specified in paragraph (a), (aa), or (b) of the definition of "Office" in section four of this Act) -

(a) shall provide that the election shall be by secret ballot; and

(b) shall make provision for -

(i) absent voting;

(ii) the manner in which persons may become candidates for election;

(iii) the appointment, conduct and duties of returning officers;

(iv) the conduct of the ballot;

(v) the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and

(vi) the declaration of the result of the ballot, and a condition that those rules shall be such as will ensure, as far as practicable, that no irregularity can occur in connexion with the election." (at p239)

The change in 1973, which was maintained in 1976, and by which the expression "rules relating to an election for an office in the organization", was changed to "the rules . . . shall provide for the election of the holder of each office", would seem to reflect the intention of Parliament that provisions for secret ballots and other aspects of conducting elections provided for in s. 133 should apply to elections for all positions which were "offices" and not only to some of them. It was convenient therefore to use the expression "holder of each office". Its use tended also to eliminate any suggestions that the section only applied to elections for those offices in respect of which the organization might decide to hold elections, and to avoid any suggestion that the imperative requirement of reg. 115 (1) (d) (i), might be qualified in some way.

REGULATION 115 CONTEMPLATES ELECTIONS FOR POSITIONS NOT OFFICES (at p240)

Having regard to the foregoing it is my conclusion that with respect to the various positions referred to in reg. 115 (1) (d) (i) rules must provide for the election of the holders thereof. Those positions are of two categories, first members of governing or managing bodies and secondly officers. There is a distinction between the two. Officers are persons with some degree of individual authority to take administrative action. Officers act individually normally in an executive role. Members of governing or managing bodies act in conjunction with other members thereof, in the exercise of functions normally not of an executive nature. (at p240)
It would not, I think, occur to members of the committee of management that they were officers of the organization. Certainly reg. 115 (1) (d) (i) appears to assume that the members of a committee of management are not officers of the organization within the meaning of par. B thereof. And I think that this has been a characteristic of the Act since 1910 or even since 1904. According to Sched. B to the original Act it was a condition of registration of an organization that its affairs were regulated by rules providing, inter alia, for "the appointment and continuance of a committee of management, a chairman or president and a secretary". But by Act No. 7 of 1910 that Schedule was repealed and replaced by Sched. B requiring that the affairs of an organization be regulated by rules providing for, inter alia, "a committee of management and officers". Again in reg. 5 of S.R. No. 331 of 1913 this same terminology appears. A change in terminology and substance appeared in an amendment to Sched. B enacted by s. 58 of Act No. 18 of 1928. Thereby the terms of Sched. B provided that the rules of associations or organizations should provide for, inter alia, "the election of a committee of management of the organization and of its branches and of offices of the organization and of its branches under a system of voting which makes adequate provision for absent voting". The repetition of the word "of" emphasizes that the rules are to provide for an election for each category of position. It is to be observed that for the first time election of a committee of management and of officers was made compulsory. And clearly by the form of words used it is to be seen that what was contemplated was that provision would be made for the election of all the persons to hold positions whether as members of the committee of management or as officers. Although a member of the committee of management was not and is not regarded as an officer, it is not incompatible with this that a member of the committee of management might be regarded as holding an office in the organization. And the situation that the member of the committee of management has an office but is not an officer is not, I think, affected by the introduction of the definition of "office" by par. (a) of s. 4 of the Act.
NECESSITY FOR ELECTIONS IN FACT (at p241)
By reg. 115 (1) (d) (ii) it is provided that the affairs of an organization shall be regulated by rules providing for "the powers and duties of committees and of officers". The question arises as to whether in relation to any officer identified by some particular title there are any limits to the powers and duties that may be conferred on or imposed upon him. Certain limits may be imposed by s. 140 (1) (c) of the Act. But within those limits one can imagine wide ranging powers and duties being allotted to, say, an officer designated as president, secretary, treasurer or trustee outside the powers and duties normally associated with those of officers so designated. It is to be remembered however that there may well be a difference between defining the powers and duties of an officer designated by a particular title and endowing him with the quality of holding an office of quite a separate nature. (at p241)
So far as a secretary or treasurer is concerned rules may purport to confer on those officers the office of member of the committee of management and the powers and duties appertaining thereto. Regulation 115 (1) (g) provides that rules "may also provide for any other matter not contrary to law". And there would appear to be no express law prescribing that persons on whom particular functions have been conferred shall be given any particular title or titles, or that a person designated as an officer of the organization under some particular title shall have any particular set of functions. But it is essential that in relation to the elections to be carried out pursuant to rules complying with reg. 115 (1) (d) (i) it should appear to the electors in respect of each election, for what position it is, that the candidates are seeking their votes. And it would seem from reg. 115 (1) (d) (i) that for election purposes a position may be specified by reference to its title. Certainly s. 4 assumes that certain offices are identifiable by their titles. Thus the offices of president, secretary and trustee are treated as being recognizable by their title with sufficient precision for the purposes of the Act. But this can only be so if the powers, duties and functions alloted to the officers with those titles are such as are reasonably within the normally understood limits of the powers, duties and the functions of officers of organizations so titled. And this consideration must apply with respect to the conduct of an election for a particular position or office. (at p242)

It added that the question was whether the rules looked at as a whole may fairly be said to provide for the election of the specified committee and officers. I agree with this view of reg. 115 (1) (d). (at p256)
If the regulation is so interpreted in the manner I have indicated, the rules as proposed will provide beyond any doubt for election to particular offices, such as that of secretary, etc., and will also provide for the election of such of them as fall within par. (d) of the regulation. The rules will also provide for a committee of management consisting of those persons elected directly to it and persons elected to offices to which the rules attach powers and duties such as membership of the committee of management, the holding of property within the meaning of par. (b) of the definition and the membership of the bodies set out in par. (c) and par. (d) of the definition of "office" so far as the rules of the organization make provision for those bodies. (at p256)
The whole of the rules then seem to me to provide for the election of a committee of management and of officers and of conferences, etc. within the meaning of reg. 115. (at p256)
In my view it cannot be said that the new rules would not provide as is required by reg. 115 and they are not therefore in disconformity with s. 140 of the Act. (at p256)
Once it is accepted that the Act intends the organization to choose its own structure, subject to requirements spelt out in the Act and regulations, and once it is accepted that members have easy access to the rules of the organization, it seems to me fair to assume that at times of election they will certainly know the consequences of voting for a particular candidate for particular office. Section 188 of the Act provides that a member must be supplied with a copy of the rules on demand and payment of a small fee. They will know then that if they cast a vote which results in the election of a particular candidate to the office of general secretary, the rules provide that she will also be a member of certain bodies. (at p256)
There have been many cases involving in one way or another union elections. Having regard to the nature of the offices of federal president and secretary and branch secretary and president, and the fact that union elections are contested by groups of individuals rather than a lone individual, this assumption is in my view the real position within unions. I do not regard it as at all unreal to make such an assumption and I do not regard such a provision as so artifical as to cause it to be looked at with suspicion. (at p257)
It has been suggested that where there was such a provision voters' considerations were not free since they might well consider any particular candidate a good administrator but not a good policy man or the reverse. The same objection might well be voiced in considering voters in a general election casting a vote. They may consider a candidate suitable if the party he supported were in opposition but not in government or they may consider the reverse. None the less they vote and are obliged to do so and make the best of an imperfect world. (at p257)
In my view the word "election" is used to describe a means whereby these various offices will be filled and it is used in distinction to the word "appoint". The Act originally required the rules to provide for the appointment of a committee of management and officers. In so doing it followed the language of the various Trade Union Acts then in existence in the various States. It was not until 1928 when the Act was amended to afford more powers of supervision of trade unions that the requirement to hold elections appeared. By the same amending Act No. 18 of 1928 the precursors of the present ss. 140 and 141 were added. In my view the rules comply with the requirements of reg. 115 (1) (d) and do require an election in the sense of a choice by the members as opposed to an appointment. (at p257)
I turn next to s.133. It was submitted in dealing with this section that s.133 (1) (a) by the use of the phrase "the holder of each office" required that the committee of management be elected and that persons could not be members of the committee of management by virtue of their election to, for example, secretary. It is argued that the use of the word "each" in s.133 (1) (a) and the use of the word "every" elsewhere in the rule emphasize that each office referred to is necessarily to be taken separately and in this sense it may be said there is some ambiguity. I have therefore taken into account the history of the section. (at p257)
Prior to the amendment brought about by Act No. 138 of 1973 there seems to me no possibility that the section could have been so construed as to require separate elections. The amendment altered the previous provisions which had applied only to offices in pars. (a), (aa) and (b) of the definition by making them apply to all the offices in the definition. It did this by using the phrase "that the rules should provide for the election of the holder of each office". However, at the same time it added to the section sub-s. (1A) which referred to the filling of an office being an office the holder of which is a member of the committee of management. (at p258)
It seems to me that the subsection clearly contemplated a position where the holder of an office is a member of the committee of management by virtue of his holding of that office. The word "each" I think, meant no more than "every". Its use was to emphasize that the provisions applied not to some only of the offices within the definition of office provided for in the rules of the organization but applied to all. (at p258)
The next amendment was in 1976. Act No. 64 of 1976 inserted a new sub-s. (1) (da) which provided that, in the case of an association applying for registration, the rules must provide that every election for offices within four of the paragraphs of the definition should be conducted by postal ballot. It did not use the word "each" and if the word "each" in s. 133 (1) (a) as amended in 1973 had the effect of requiring a separate election for each office, it is difficult to see why different provision is made for associations applying for registration after s. 133 (1) (da) was enacted in 1976. The general scheme of the Act has always been to apply the same requirements to applicants for registration as to registered bodies and it is improbable that different provisions would be provided for an association if immediately upon registration a change would be required in the rules. After registration the association would be an organization and required to have rules complying with s.133 (1). (at p258)
The section was further amended in 1976 by Act No. 117 of 1976 and sub-s. (1A) was deleted, but by the same Act a new sub-s. (5) (a) was inserted in s.4. This referred to persons who are holders of offices entitling the holders to membership of an electoral college and clearly contemplated that there will be such persons who are members of such a college who will be members by virtue of the holding of some other office. Such a college may in some circumstances be the committee of management, in others it may be a committee which falls within par. (c) of the definition of "office" in s. 4 of the Act. It seems unlikely that a body would be set up purely for the purpose of an election meeting at considearable cost to a federal organization to perform one function only. (at p258)
It was submitted to us that to regard the section as requiring a separate election for each office prescribed by the rules of the organization and falling within the paragraphs of the definition would lead to an absurd or inconvenient result. This I think is so and such a result is to be avoided unless the language is intractable. To illustrate the position in the case of this association, if it is necessary under the section to require a separate election in respect of each office then regard must be had to the overlapping nature of the paragraphs in the definition. (at p258)
In the case of this association, pars. (a), (aa), (b), (c) and (d) all appear to overlap and in the case of the federal secretary and federal president it would be necessary for her to be elected in separate elections though perhaps conducted at the same time as: 1. federal secretary (par. (aa)); 2. a member of the federal executive (pars. (a) and (c); 3. a member of the federal council (pars. (a) and (c); 4. a person holding property under par. (b) of the definition. (at p259)
I leave out of consideration the question of the overlaps with par. (d). Like considerations apply to the federal president and to the federal vice-president, as they do to the branch secretary, branch president and branch vice-president. In some organizations there are separate rule-making bodies and in a few separate bodies exercising disciplinary powers and in those cases the position would be aggravated and the number of separate elections increased considerably. (at p259)
For the reasons I have indicated I am of the view that the language is not intractable but that it is consistent with the common-sense result which flows from the adoption of the present practice. In my view then, s.133 of the Act properly construed does not make provisions with which these rules would not conform. I regard the word "each", as defined, to do no more than to emphasize that there is no exclusion of offices as defined or any of them. (at p259)
In my view then, the questions asked should be answered as follows: 1. "Yes". 2. (a) "No". (b) "No". (c) "No". 3. Question 3 should, in my view, be answered as follows: So far as the requirements of par. (a) of s.140 (1) are concerned, "Yes". So far as the requirements of s. 140(1) (c) are concerned, no material appears before this Court which would support a view that the proposed rules would offend against s. 140 (1) (c), but final consideration of this may depend upon an examination of the history of other matters peculiar to the association. (at p259)

JUDGE4

EVATT J. The reference herein by the Industrial Registrar made pursuant to s. 112 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") raises questions of law for determination by the court in relation to certain rule amendments adopted by the Airline Hostesses' Association an organization registered under the Act. Basically the questions for determination are; do such rule amendments satisfy the requirements of s. 140 (1) (a) and s. 140 (1) (c) of the Act? (at p259)

Such rules appear to provide: (1) that persons elected to be federal officers shall without any further election be members of the federal council and federal executive, (2) that persons elected as branch president and branch secretary respectively shall without further election be members of the federal council and (3) that persons elected as branch presidents shall without any further election be members of the federal executive. Do such rules provide for the election of the holder of each office (as defined in s. 4 of the Act) within the organization as required by s. 133 (1) (a) of the Act and reg. 115 (1) (d) (i) made thereunder? The particular rules are fully set out in the reasons for judgment of Sweeney J., which I have had the advantage of reading. Further, relevant sections of the Act are set out in the reasons for judgment of Bowen C.J. which I have also had the advantage of reading. (at p260)
In Sherrif v. Townsend (1980) 48 FLR 20 (V. 12 of 1979) a challenge was made, inter alia, to the certified rule providing for the composition of the federal council of the Vehicle Builders Employees' Federation of Australia an organization registered under the Act. Rule 1 (b) of the rules of that organization provided: "1 (b) The federal council shall consist of: (i) two delegates from each branch elected as prescribed in r. 4 neither of whom shall be the secretary of such branch; (ii) the secretary for the time being of each branch of the federation; (iii) the federal secretary of the federation; (iv) the assistant federal secretary of the federation." (at p260)
The claimants' challenge to the rule was, for relevant discussion, two-pronged; first, that r. 1 (b) (i) created an invalid imbalance in the number of delegates to federal council from branches, the membership of which varied from branch to branch and accordingly contravened s. 140 (1) (c) of the Act (see McLeish v. Kane (1978) 36 FLR 80 ) and secondly, that r. 1 (b) (ii) permitted a branch secretary, although elected to that office, to be a member of the federal council without being elected a councillor as required by s. 133 (1) (a) and/or reg. 115 (1) (d) (i) and accordingly contravened s. 140 (1) (a) of the Act. (at p260)
The court in that case unanimously held that, in accordance with the principles referred to in McLeish v. Kane, the whole of r. 1 (b) providing for the constitution of that federal council was contrary to s. 140 (1) (c) for the reasons therein expressed in respect of the orders sought in pars. 4, 5 and 6 of the rule to show cause. (at p260)
In Sherrif v. Townsend I stated: "Paragraphs 9, 10 and 11 (of the rule to show cause) seek orders that r. 1 (b) (ii) contravenes s. 140 (1) (a) of the Act in that such rule provides that the secretaries of the various branches of the organization shall be members of its federal council without any of such secretaries being elected within the meaning of the Act and regulations thereunder, to hold the office of a federal councillor. I have already expressed the view that r. 1 (b) (ii) is contrary to s. 140 (1) (c) as being contrary to the principles set out in McLeish v. Kane if r. 1 (b) (i) is struck out, but having regard to the proposed scheme approved by the court under s. 171D of the Act, and as grounds 9, 10 and 11 were fully argued the court's view thereon should be stated. I am of the view that such rule is contrary to s. 140 (1) (a) and agree with the reasons for judgment in this regard of Smithers J." (1980) 48 FLR, at p 44. (at p261)
The questions set out in the present reference have raised in more detail the issues raised in pars. 9, 10 and 11 of the rule to show cause in Sherrif v. Townsend. Having had the benefit of the detailed submissions concerning the history of the relevant sections of the Act, Sched. B and the regulations made under the Act together with further argument thereon, it is clear in retrospect, that the issues raised in the said pars. 9, 10 and 11 in this regard had not been fully argued other than by the claimants therein. Those claimants, through their legal advisor, were given an opportunity to further argue the issue before this Court but such opportunity was apparently declined by them as they made no request for leave to intervene herein. (at p261)
The submissions and arguments of counsel in this reference have persuaded me that the dicta expressed by me in Sherrif v. Townsend that r. 1 (b) (ii) of the rules of the Vehicle Builders Employees' Federation of Australia did not accord with the provisions of s. 133 (1) (a) and/or reg. 115 (1) (d) (i) and consequently contravened s. 140 (1) (a) of the Act is incorrect. (at p261)
I entirely agree with the reasons for judgment of Bowen C.J. and J. B. Sweeney J. herein. I further agree that the answers to the questions asked by the Registrar should be in accordance with those set out in the reasons for judgment of Bowen C.J. (at p261)

JUDGE5

NORTHROP J. I have had the advantage of reading the reasons for judgment of the Chief Judge and J. B. Sweeney J. and I agree with the opinions expressed in those reasons. Nothing put in argument during the hearing of the reference and nothing arising from further reflection persuades me to vary the views I expressed on this issue in Sherrif v. Townsend (1980) 48 FLR 20 , but I would make the further comments. (at p261)

The nature of organizations has been referred to in a number of recent decisions of the Federal Court, and I refer to some of them: Allen v. Townsend per Evatt and Northrop JJ. (1977) 31 FLR, at p 467 ; Wiseman v. Professional Radio and Electronics Institute of Australasia per Evatt and Northrop JJ. (1978) 35 FLR, at pp 38-42 ; Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia per Smithers and Evatt JJ. and per Northrop J. (1978) 35 FLR, at pp 81, 93-99 ; McLeish v. Kane per J. B. Sweeney, Evatt and Northrop JJ. (1978) 36 FLR, at pp 556-559 ; Sherrif v. Townsend per Northrop J. (1980) 48 FLR 20 and Boland v. Munro per Evatt and Northrop JJ. (1980) 48 FLR, 66. (at p261)
Regulation 115 (1) (d) (i) does not prescribe methods by which elections are to be conducted. In that sub-paragraph the word "election" is used in contradistinction to the word "appointment": see Porter v. Australian Federated Union of Locomotive Enginemen per Spicer C.J., Joske and Smithers JJ. (1965) 7 FLR, at pp 398-399. The word "appointment" was the word used in the equivalent provisions contained in Sched. B to the 1904 Conciliation and Arbitration Act (Cth). In the regulations from the time they were first made in 1913 until 1928, the equivalent provisions contained neither the word "appointment" nor the word "election". The methods by which elections are to be conducted are prescribed in the Conciliation and Arbitration Act 1904, as amended, see s. 133 and s. 133AA, although certain of the subsections of s. 133AA are not yet in operation. (at p262)
The provisions of the Act prescribing the methods by which elections are to be conducted have been amended from time to time. The substance of the amendments made in 1973 (Act No. 138 of 1973, s. 52) was to proscribe the collegiate electoral system as a method by which elections could be conducted but those amendments still permitted a limited type of collegiate electoral system. Between 1973 and 1976, s. 133 (1A) contained expressions based on the assumption that the rules of an organization validly could provide that a holder of an office by reason of being the holder of that office could be a member of the committee of management of the organization. The substance of the amendments made in 1976 (Act No. 117 of 1976, ss. 3 and 4) was to widen the type of collegiate electoral system which thereafter was to be permitted. Section 133 (1A) was deleted and s. 4 (5) was inserted. The latter section contains expressions which make it clear that Parliament acted upon the view that under the legislation and regulations then in force, rules of an organization validly could provide that a person, by reason of being the holder of an office, could be a member of a committee of management of the organization. In describing the body which, under a collegiate electoral system elected persons to office, the section provided that the rules could include a provision that persons "who are the holders of offices entitling the holders to membership of that body". For many years the Commonwealth Court of Conciliation and Arbitration, the Commonwealth Industrial Court and the Federal Court of Australia have given judgments based on the view that in reg. 115 (1) (d) (i) the word "election" is used in contradistinction to the word "appointment" and does not prescribe methods by which elections are to be conducted. On at least two occasions, namely in 1973 and 1976, Parliament has passed legislation based upon the acceptance of that view. In my opinion, that view of the effect of reg. 115 (1) (d) (i) is correct. (at p262)
The rules of the Airline Hostesses' Association make provision for committees of management of the association, for federal officers of the association and for a federal council empowered to determine policy, which council is also a committee of management within the defined meaning of that phrase. The rules of the association provide that the members of the committees of management are persons who are the holders of offices within the defined meaning of that word entitling them to membership of the committees of management. The rules of the association define those persons by reference to them being the holders of federal offices and the holders of offices being branch delegates. Two of the branch delegates from each branch are the branch officers for each branch of the association. The rules of the association provide for the holder of each of those offices, within the defined meaning of that word, to be elected to those offices by a method which is not contrary to the Conciliation and Arbitration Act. None of those persons has been appointed to the office held. It follows therefore that the rules of the association make provision for the election of the committees of management and of the officers of the association. They do not make provision for the appointment of committees of management and of the officers of the association. In this respect the rules of the association are not contrary to reg. 115 (1) (d) (i). (at p263)

I agree with the answers proposed by the Chief Judge. (at p263)

ORDER

Questions answered accordingly.

[1980] FCA 137

01 OCTOBER 1980