Re Australian Building Construction Employees and Builders Labourers Federation

IN THE FEDERAL COURT OF AUSTRALIA-- INDUSTRIAL DIVISION

- .

re Australian Building Construction

mployees and'

Builders Labourers Federation

N.S.W.

Nos. 16 & 28 of 19-

CATCHWORDS

Conciliation & Arbitration Act, 1904, s.159 et seq.

- election inquiries - vagueness and uncertainty of

resolution - test to be

applied - endorsement of

resolution - effect of adoption of minutes and

reports -

Nomination posted	before closing tlme but received
later - invalid

coram J.B. Sweeney J.

23 January, 1978

. -

f	IN THE FEDERAL COURT OF AUSTRALIA

,'.NSW

NOS. 16 & 28 of 19;

INDUSTRIAL DIVISION

IN THE MATTER of inquiries into an

election for offices in the Australian

Building construction mployees and

Builders Labourers Federation, an

organisation of employees registered

under the Conciliatlon and Arbitration

Act. 1904

23 JANUARY, 1978	Sh'EENEY	J.B.	J.
._

REASONS FOR JUDGMENT

m e s e are two inquiries into elections held in the Australian Building Construction Employees and Builders Labourers Federation ("the Federation"). The

elections are those for the offices of General Secretary

and for Trustee and Federal Vice-President. In each

case application was made to the Registrar pursuant to

s.159 of the Act who, being satisfied as required under

9.160. referred the matters to the Court. Mr. Enderby Q.C.

and m. Manser appeared for the three applicants and Mr.

Ryan for the Federation and for each of	the successful
candidates.

The first application is by Mr. B.V. RiX.

appears that Mr. Rix lodged on 7 July, 1977 a nomination for the position of General Secretary which admittedly

was in time.

The Returning Officer did not reject this

nomination and clearly the appropriate steps under

regulation 146AE(ii) were not taken.

. p

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It is now

sulmitted that *he nomination was

not valid because, at the time of

nomination, Mr. Rix

and his two nominators were

not financial members.

Their financial standing

depends on questions

arising

as to a levy purported to be

imposed in November, 1974.

.	A second nomination was lodged by Rix for the

same office on 8 m l y , 1977.

This nomination was rejected

.by the Returning

Officer on the ground that it was not

iodged within time. It

is now further submitted that

the nomination was

invalid because Rix and the two

nom-

inators were not financial members of

the Federation.

Regulation 146AE(ii) was

obeyed in dealing with this

nomination in respect of the first ground but not the

second.

The second inquiry is one sought jointly by

Mr. Reginald Mason and Mr.

Noel Olive who nominated for

the positions of

Trustee and Federal vice-president

respectively. Their nominations were forwarded on

8 July, 1977 and it is submitted that they were not received in time. It is further submitted that the nominations were invalid because each nominator and

each of the persons

nominated was unfinancial within

the Federation by reason of the date of payment of the

levy to which reference

has already been made. Both

Olive and Mason were advised by the Returning Officer

of the rejection

of their nomination on the ground that

it was not received in time.

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This being an inquiry into an election, all

parties are entitled to raise issues as to irregularities,

whether these matters were raised or were before the

Registrar or not.

Consequently they involve considera-

tion of the

rules concerning elections and

of the rules

concerning the imposition of levies and the financial

status of members.

The organisation was de-tegistered

21 June, 1974 and thereafter was a voluntary associa-

tion. It

was registered on a fresh application on

7 October, 1976.

l	I deal first with the question of the finan-

cial status of the three applicants and their nominators.

The.rules require that a person nominating

for one of

the relevant offices and his nominators must at the

point of nomination

have been continuously financial

within the Federation for a period of

two years.

The financial standing of these persons dep- ends on the view taken of the validity of the impos- ition of a levy in November, 1974. At the time when the levy was imposed, the Federation was de-registered

as an organisation but it was functioning as a voluntary association with the same rules as it had had previously.

These rules (Rule 8(m))

give power to the Federal

council “to impose levies upon any one or more

Branches

or upon the members or any specified category

of the

members or any one or more Branches or of the

Union.

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Provided that

no member shall be liable to pay levies-

to an amount of more than $20 in any one year".

Under the rules, the supreme control of the union is vested in the members of the union.

Subject

thereto, that supreme control is

to be

exercised on

behalf of the members by the Federal Council, which has very important general powers in addition to the

specific power to impose levies in	Rule 8(m). The
:

Federal Council is to

meet at least once in November

of each year and on other occasions when specific powers for it to be called together are exercised. The rules contemplate the election of delegates from

each branch, the number of delegates from each branch

being in approximate relationship

to the number of

members in the branch. Agenda papers are to be prep-

ared and submitted

to the Council. Each branch of

the Federation is to receive a copy

of the agenda

paper. The rules then provide that delegates to the Federal Council must vote in accordance

with the

instructions of their branch on all	matters contained
in the agenda paper.

It is corranon ground that the question of a

levy did not

appear on the agenda paper and

hence a

resolution of the

Federal Council itself

would not

be sufficient to impose the levy.

Reliance is placed

on Rule 8 ( 4 ) which reads "Federal Council, when assembled.

may arrive at a decision which is not

o the

agenda,

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such decision to be	endorsed by the majority of the
branches".

There must then be a decision,

imposing a

levy, reached by the Federal Council when

assembled

and such

decision must be endorsed by the majority of

branches for it to be

effective and operate.

The evidence before me

shows that there

:was a meeting of the

Federal Council on 26 November,

1974.

It was submitted that the meeting was

invalid

because delegates from the New South Wales Branch were

not present and

that in addition a copy of the agenda

. was not forwarded to the New South Wales Branch.

The

evidence on this latter aspect is slight.

There is

* .

evidence that a copy was despatched, addressed to the

executive and members of the New

South Wales Branch

at 5-omises at Trades Hall, Sydney.

It is claimed

thac these premises at the time were

occupied by a

8e fecto New South Wales branch of the Federation

and

not by the de jure branch.

In addition, Mr.

mens,

the then secretary of the New South Wales Branch.

gave evidence that he did not see the agenda.

There

is no evidence before me

showing why New south Wales

delegates were not present.

I am not prepared to

hold on this

evidence that the meeting of

26 November,

1974 was not a meeting of the Federal council

or that

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a quorum was clearly present.

It was moved at the meeting

"That after considering the financial position

of the Federation brought about by the inter-

vention into New south Wales, this Federal

Council immediately place two

$4.00 levles on

all members (not honorary, retired members)

for the periods beginning the 1st April

1975

and the 1st September

1975.

If branches having

administration problems in collecting such levy,

they shall immediately advance

to the Federation

the approximate amount expected to be collected

€or such levy.

An amendment was moved in the following terms:

"That a $4.00 levy called the Federation

Rehabilitation Fund be imposed on all members

of the Federation. This levy shall be imposed

for two terms commencing with the terms startlng

1st April 1975.

Because of the need for immed-

iate finance, the Victorian Branch shall make an

. immediate advance payment of

$30,000 to this

fund, to be repaid during the currency of the

levy.

It appears that the original motion was first put and

lost and that the amendment was then put and carried.

The question is whether in carrying that resolution

there was an effective exercise of the power

to impose

a levy. The procedure adopted appears

to be contrary

to the standing orders set out in paragraph

8 of the

Rules of Debate. However

I do not regard this rule

as mandatory and in the light of the fact that both

matters were before the Council and that the final

motion was carried unanimously,

I think that if this

rule applies to meetings of the Federal Council, it

has been substantially complied with.

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It will be noted. that the original motion

imposed two $4 levies.

Secondly, it exempted from

payment of the levies honorary, retired members.

Thirdly, it imposed the levies for the periods begin-

ning 1 April, 1975 and 1 September, 1975.

Fourthly,

it made provisior. for branches to advance to the

Federation amounts expected to be collected.

The

.amendment imposed a $4 levy.	secondly, it was
.	.

imposed on all members not excluding honorary, retired

members. Thirdly. the levy was imposed for two terms comnencing with the term starting 1 April, 1975.

Fourthly, provision was made

for the Victorian Branch

to make an immediate advance payment to be repaid

during the currency of the levy.

There are no

definitions in the rules of

the words "terms" or "periods" and the general scheme

of tke rules affords no assistance in determining

wiz? they are.

It bas put by Mr. Ryan, who argued the case for the Federation with masked ability, that both the words refer to two six monthly periods, but this

cannot be so.

In the original motion the periods

were referred to as	beginning 1 April, 1975 and
1 September, 1975.	It would appear that the first

period ended when the second began, and if this were

80. the first period was from 1 April, 1975 to

31 August, 1975, a period of five months.

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Other payments due under the rules are

subscriptions which are payable either half-yearly

or annually in advance. At the time the resolution

. was carried, each calendar year was divided into

two

six monthly intervals, the first half year to 30 June

and the second from 1 July to 31 December. Contributions in respect of the first half year were payable in the

preceding December and for the second half year were

payable during the preceding June. The other payments

required to be made were

tl-e entrance fees which must

be paid prior to the person becoming

a ember.

No assistance is gained from the scheme of

these rules in interpreting the words "terms" or

"periods".

Under the definition rules of the union,

is provided that

"In the interpretation of these rules the

following deflnltlons shall be taken as	a
guide

(a)

'Financial member' means

a member who

has paid all moneys payable under

these rules and is entitled to the

.	full benefits of the Federation."

The effect of non payment within the allowed

time is that the member becomes unfinancial.

He loses.

among other things, his right to transfer to other

branches, his right to stand for office and his right

to vote. His right

to vote may be restored on payment

but if his continuity of financial membership is

0 .

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broken then

he is not eligible

to stand for office

until he has again qualified himself by

a period of

two years continuous financial membership. In

these circumstances it is necessary for

a levy to

be imposed with reasonable certainty as to the

amount of the levy and the point at which payment

must be made to

the Federation.

. .

agree that it is proper in attempting

to construe the resolution ultimately carried to

have regard to the first resolution. Moreover,

a '

resolution of

a council of a union is not to be con-

strued with the same approach as

a statute drawn by

skilled draftsmen

or documents drawn by lawyers. The

skills of builders labourers are not to be found

primarily in their methods

of dealing with words. so,

for example,

a change in words should not be inter-

prr:hd as showing

an intention to change meanings.

m e imposition of

a levy is

a matter of

iwpcctsnce to the organisation and its members and is

not something to be held invalid for mere technical

problems. what then was meant by the resolution?

I think it clear there was an intention to impose

what may be called

a levy of

$8 payable in

two

instalments or two levies of

$4 payable in consec-

utive periods. I have already referred to the fact

that each calendar year is divided into periods of

six months and that contributions are payable for

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. .

each such period. Other rule; dealing-

with financial

matters seem to adopt six monthly periods as the

relevant division of a year.

See Rule 6(h), 6(j)(i),

6(j)(v), ll(i)(e), 13 and Branch Rule 9.

The relevant terms then are 1 April, 1975

to 30 September. 1975 and 1 October, 1975 to 31 March,

1976.

Contributions are payable in advance, but

it could not be thought that the levy was payable in

advance.

Since the Council was acting under Rule 8(4 )

the resolution became effective when endorsed by four

branches and this would not be known for some

time.

It would be an

impossible interpretation of the

resolutiorl that immediately on such endorsement the

le+ .became payable, that those who had not then

paid, owed monies to the

Federation and had conse-

quently lost their continuous financial status.

It was submitted thar: assistance was to

be gained by seeing how participants at the Federal

Council meeting in their subsequent reports to

branches interpreted the obligation. But

there is

no uniformity

here.

In Western Australia, the first report was

that one levy had been imposed. The Tasmanian Branch

report was that the $4 levy applied from 1 April. 1975

to 30 September, 1975 and from 1 Oct.&er, 1975 to

31 March, 1976. The A.C.T. meeting discussed a

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‘c

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“4 dollar rehabilitation levy” and there is no other

detail.

These divergent views of. the effect of the

resolutions, eve5 if relevant, which I strongly doubt,

do not assist the respondents.

I have therefore concluded that there was

meeting of Federal Council

and that it reached a

decision to impose a levy payable as to S4 within the

periods 1 April, 1975 to 30 September, 1975.

Admittedly

in the case

of each candidate

and perhaps his nominators

the payment was not made until 30 October, 1975.

The decision made

by the Federal Council when

assembled was an exercise of its power

to‘impose. levies

and not invalid

because of uncertainty. It was neces-

sary that it be endorsod by the majority of the branches

for it to become a binding resolution. Rule 8 is prop-

erly to be regarded as a rule providing twa metho3s

W. = -cby there may be valid decisions of the Federal

Councll.

So far as rule

8(4) is concerned, having

regard c3 ;he subject dealt with, which may be any

matter at all within the powers

of the

Federal Council,

the rule 1s properly to be regarded as mandatory. I

am fortified in this view by the 3ecision of the

Supreme Court of New

South Wales in Makin v. Gallagher

(1974) 2 N.S.W.L.R.

559 at 573 where Holland J. said

of this rule:

“To dispense with both

an agenda paper before

a council meeting, and with branch endorsement

. .

I	.
,.

after, could disenfranchise the members in whom the ultimate authority behind council

decisions is intended to reside.

In my

opinion, one or the other was intecded to

be a necessary condition 0f.a valid decisior.

of any meeting of the Federal Council and it

would not be correct to look on the	agenda
rules as only directory.''

There were at the time seven branches of

the Federation, the Queensl.and, New south Wales,

Victorian, South Australian, Western Australian,

:. Tasmanian and €i.e.+. Branches.

No meeting was held

of the New

south Wales ixanch and it is not suggested

that there-

was any endorsment by it.

The question

ie whether the evidence

shows an endorsement by four

of the six other branches.

There is no necessary formula to be

fol-

lowed in endorsement but it seems quite clear to me that some positive action is needed. There cannot,'

for example, be an

endorsement by a mere acquiescence

or by a mere failure to object to the

decision. The

relevant dictionary meanings gf the word "endorse"

are "to confirm or to declare one's approval". The

endorsement must be an

expression of the will of

the

branch, part of the voluntary association, and having

regard to the fact that the rules place

supreme control

in the hands of the members, the provisions

for members

!	participation in consideration of the agenda paper,
I am of opinion that the endorsement must be by the
members of the branch and not a branch executive.

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Indeed the contrary view was not argued.

There must

in my view be a resolution because the endorsement

by a majority of branches would, one would think,

necessarily be spread over some period and the point

at which the majority of branches had endorsed the

decision would have

to be

ascertainable to determine

when the rights

of members and the duties of members

.to pay the levy arose.

In the case of the Victorian Branch, the

procedure adopted was that a report was given to a

meeting of the executive

which then endorsed the

decision.

A like report appears to have been

given

to a subsequent general meeting of members and that

meeting then carried a resolution in the following

terms :

"Following some questions

on the reports

asked by the members Comrade

wallace moved,

J. Masterson seconded, that that section

of the executive report endorsing the

federal rehabilitation levy, the advance

payment of $30,000 to the Federation and

the increase in union contributions be

endorsed by the general meeting"

That.resolution was carried.

Mr. Wallace, the Assistant

Secretary of the Victorian Branch,

who gave evidence.

said that

when he returned from the Federal Council

meeting he was

aware there had to be an

endorsement and

in his view the procedure

followed by the Victorian

Branch was the correct procedure.

r t

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Similar action was taken

i having the

matter placed before a general meeting of the

Queensland Branch.	fie minutes of that meeting as
corrected record:

"V. Dobinson then moved that this branch

endorse the Federation's action in placing

a $4	levy on members in the next two half

year periods"

These are each a proper endorsement by the Branch of the decision of the

Federal Council.

In South Australia the

s cretary of the

branch reported to a

meeting of the

xecutive of

that branch on the meeting of

the Federal Council.

A resolution was carried

receiving and adopting his

report.

A subsequent general meeting received and

accepted the minutes of the executive

meeting. It

then carried a resolution in the following	terms
fro? the minutes:

"It was moved J. O'Mally, seconded J. Coady.

that the branch

will carry the levy of $4

for the first six months if finances allow"

It was submitted that it was beyond the

power of the branch to

so decide and secondly that

when a levy had been-placed on members it was not

a discharge of the members'

liability if the payment

of the levy was made by the branch

or some person or

body other than the member.

I do not accept either

of these submissions. I see no reason why the

member's liability should not be discharged by. for

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example, a payment by some other member

or a payment

by his employer. Equally

I think it was within the

power of the branch to resolve as'it did and that

the resolutions of the Federal Council dealt with

above cannot

be regarded as negativing the power

.	a branch to make the payments	o behalf of its
members.

..	It was further submitted that what happened

in South Australia does not amount to an endorsement.

I do not think that the executive committee was able

.to endorse the decision but in my view it was

a matter

for the members of the branch in general meeting. The

general meeting carried

a resolution receiving and

accepting the minutes of the prior executive meeting

a .

which in its turn had carried

a r solution receiving

and adopting the Secretary's report of the Federal

Couacil.

In his well known text book dealing with

law and procedure at meetings, Joske

. has said:

"After the chairman takes the chair the first

. business of

a meeting is usually the reading

and putting

a questlon for the confirmation

previous meeting. Sometimes it is moved that of the minutes of the proceedings at the .

the minutes be taken as read, though this is not desirable unless they have been previously circulated amongst members. Confirmation of

minutes (whether called confirmation

adoption) only vouches for their accuracy as

a record of proceedlngs. It in no way gives

any effect to

a decislon previously made.

nor is there any need for such

a declslon to

be approved. Consequently the only discussion that can be permitted on the motion for con- firmation of the minutes is as to their

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., . .

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accuracy as a

record of the

pzoceedings.

In particular a

person cannot on this motion

attempt to re-open any question previously

decided: his remedy 1s subsequently to

proposc, in accordance with.the rules of

the body, a motion

for the rescission

the previous decision. By voting to con-

firm minutes a

person not present at the

previous meeting

does not become respons-

.	ible for what was done there."

.	These considerations seem to me accurately

to set out the

position with reports as well as

Lminutes and the adoption,

whether called adoption or

acceptance, does

no more than accept the accuracy as

a report.

I am unable then to treat either the res-

olution of the executive

or the subsequent resolution

Of the general meeting as

a confirmation. That posi-

tion in my view is not altered by the resolation then

carried providing that

he branch should carry the

levy of $4 for the first six months. That resolutlon

is consistent with the approval of one levy of $4

only. the approval of two levies

each of $4 payable

in e*&

of two periods

of sir months or a belief that

the kztrch

and its members

were bound by the decision

and k d

no right to confirm or otherwise. It could

only accept it and a decision not inconsistent with

ik c= =wing it.

when the resolution is capable of

a n

of interpretations,

each of which would

clearly be within the branch's power to adopt, it is

not p s i b l e to treat it as a

confirmation.

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In Western Australia the evidence shows

khat on 26 November, 1974 the Acting Secretary

reported that the Federal Council had struck a

levy to operate as from 1 April, 1975.

The report

does not appear to have been received, accepted or

adopted. A further meeting

of the executive was

held on 3 December, 1974.

Under the heading "Reports"

.it is recorded that both the President and Secretary gave reports on the Federal Council meeting. It was

then recorded

that a number of points were raised

and much discussion took place around this matter.

. .	The reports appear to have been neither received,

. .	accepted or adopted. A general meeting of members

was held on 10 December, 1974.

The minutes record

that the Secretary reported on a	number of matters
at the Federal Council meeting.	His oral evidence

was that at the meeting

he made a meqtion

of the

levy. No motion was moved or dealt with concerning the report or the levy. It

is quite clear that the

evidence does not show any endorsement of the

decision by the Western Australian

Branch.

A.C.T.

Branch. The evidence showed a

general meeting held on

25 February. 1975. At it

a resolution was moved "that correspondence be

admitted" and a further resolution

was carried "that

report be received".

The correspondence was not

identified and neither was the report.

The minutes

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. -

also record that a resolution was moved and seconded

that "the question of a $4 subscription rehabilitation

levy be circulated to all B.L.s in A.C.T.

and discussed

on a next general meeting". It was lost.

The defeat

of a resolution to adjourn discussion obviously does

not carry

with it the implication that by reason of

that defeat any

decision at all was reached on the

..levy.

I am satisfied that the A.C.T.

did not endorse

the decision.

In Tasmania the evidence here is that a

general meeting of members was held

on 17 December,

. 1974.

The minutes record that the Secretary reported on a number of matters including the Federal

Council

. ,

meeting in Sydney and in what appears to be

a report

there appears this "now

re the $4 Federal rehabilita-

tior. :evy.

That will applies (sic) to all members of

o ~ r

Federation from 1st April, 1975 to 30th September,

1975 m d 1st October, 1975 to 31st March, 1976."

The

minutes do not record any resolution dealing with

that subject matter and the Secretary did not give

evidence of any resolution. I am of the opinion that

what happened in

Tasmania does

not amount to a con-

firmation of the resolution.

The position then is that the decision was

endorsed in Victoria and Queensland. It was not en-

dorsed in the other four states and consequently the

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resolution had not at the relevant times been	.
carried.

A t the time, of nomination, the applicants

admittedly had two years financial membership unless

this was broken

by the fact that neither they nor

their seconders paid the amounts

of the levies until

October, 1975. since I have held that on the two grounds discussed levies were not validly imposed,

..	it follows that all the applicants were financial, as
were the persons nominating them.
Were nominations in time

It is not disputed that Rix's nomination of

7 July, 1977 was in time. Difficulties arise however

with'regard to his second nomination and those

Olive and Mason. The rules at the time of the elec- tion, subsequent to the registration of the orgaxisa-

tion in October

of 1976, were in somewhat different

form from the earlier rules.

So far as the ballot is concerned, rule

provided that the Federal Management Committee should

appoint a Federal Returning Officer not later than

the 30th day of July in each election year. The

Returning Officer was not to be the holder of any

other office or an employee of the Federation	o a
branch. Rule 9A(ii) to (vi)'then provided:

(ii) The Federal Returning Officer shall call

for nominations for election to each

the offices referred to

m Rule 9 hereof

, . '.

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from financial members of the Federation

who shall'have been bona fide financial

members of the Federation continuously

for not less than two years immediately

prior to their nomination. Each nomina-

tion shall

be in writing and signed by

the candidate and

a proposer and seconder

each of whom shall have the same qualifi-

cations as are required by this Rule for

a candidate.

(iii) The Federal Returning Officer shall call

for nominations pursuant

to this Rule

an advertisement In

a daily newspaper

circulating

each

State.

(iv) No person shall nominate for

more than

one of the offlces referred to in Rule	9
hereof.

(v)

The Federal Returning Officer shall

determine in respect

of each nomination

whether it

should be

accepted or rejected.

'(vi)

If the Federal Returning Officer finds a nomination to be defective he shall, before rejecting such nomination notify the person concerned of the defect, and,

where it

is practlcable to do

so, give

him the opportunity of remedying the

defect within not less than seven days

after his being

so notified.

Nominations were called by an advertisement

inserted in the "Australian" llewspaper in the issue

of 20 June, 1977.

This advertlsement provided that

nominations ... shall close

at 5 p.m. on Friday,

July 8, 1977 and provided further

that nominations

were to be forwarded

to the Returning Officer, Mr.

Masterson, care of

G.P.O. Box No. 4494. Melbourne. 3001.

There was no obligation under the rules or the regula-

tions to use

a post office

box for receipt of nominations.

The evidence

is that Messrs. Olive and Mason

first learned

of the date of the election

on 5 July.

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2 .

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l	.
I

1977. I see no reason to doubt this and, indeed,

\while it was

compliance with the letter of the

rule, it does seem that the insertion of an adver- tisement in the Saturday edition of the "Australian"

was not the method best designed to ensure wide

knowledge among the members of the election. It

is notorious that this newspaper has

a circulation

.	:lower than many other daily newspapers and that its

receipt in some parts of Australia is markedly later

than that of daily newspapers printed in various

other cities or towns in those parts. On

6 July,

the two men obtained nomination forms from the office

of the New South wales Branch of the union and they

completed the nomination forms on the 7th. In the

meantime, Mr. Rix had some misgivings about the

validity of his first nomination and he therefore

completed a second nomination which was ready for

despatch on

8 July.

Arrangements were then made by them and

Mr. Rix to send the nomination

forms by T.A.A. to

Melbourne on

8 July, 1977 where they would be picked

up and posted at the Melbourne

G.P.O.

This was done

and they were posted at about

2.30 p.m. on the 8th.

Mr. Masterson's evidence is that they were not in

the box when he examined it after

5 p.m. on 8 July

and I have no hesitation in accepting this.

- 22 -

The difficulty

appears to have arisen by

the eystem in use at the G.P.O..

Melbourne. When

boxes are sought for the purpose of

a union election,

what is allocated is in fact

a mail bag which is kept

at the Central Mail Exchange,

some half mile away

from the G.P.O.,

Melbourne. Mail posted to the mail

box at least at the G.P.O.

Melbourne has to be col-

5 lected, sorted and transmitted to the Central Mail

Exchange for insertion in the bag allocated for the

particular election. The evidence before me does not

disclose whether this type of problem exists in other

areas. It does not disclose the latest time at which

an article posted to an

address of a

box number at

the G.P.O., Melbourne would reach that box nor does it disclose that information in respect of boxes at other post offices. I have no way of knowing whether

th1: difficulty arose purely because of the arrange-

n~mts at Melbourne or whether it is common to the

postal system.

I have no evidence before me to show at

what ‘time a postal article

posted at a post office

where a box was hired

would in the ordinary course

of events be placed in the box.

An affidavit by

Mr. Horne, an officer of the Australian Postal

Commission, shows

that it was almost impossible for

an article of mail

addressed to the relevant box at

the G.P.O., Melbourne and posted at 2.30 p.m. at

. .

- 23 -

the G.P.O. to have been collected, sorted and trans-

rnitted to the box

by 5 p.m. on that day.

That being

so, it cannot

be claimed that

the nominations were posted in such time that in the ordinary course they would have been received by the

closing time. That being

so, I think the test is

whether they were	so received, and clearly they were
pot.

In these circumstances,

I think that the

fact that the articles had not been delivered to the

box specified by

5 p.m. on 8 July is fatal and

I am

of the opinion that the nominations of Messrs. Olive

and Mason and the second nomination	of Mr.
out ,of time.

Rix were

A further irregularity alleged is that

Mr.

Masterson, the Returning Officer, was an employee

the Federation at the time of appointment. His

evidence is that

he was not. He had been an organiser

of-the

Victorian Branch but had retired in August,

1976. Thereafter he was employed at times to relieve

other members of the staff but was not	so employed
when appointed.

Wages records have been produced

to me.

I accept Mr. Masterson's evidence and find there was no irregularity in this aspect.

- 24 -

_ .

Effect of Findings

In the case of the applications by Olive and Mr. Mason, it follows from my findings

Mr.

that they did not lodge

a nomination prior to the

closing date and that the nomination of each was

rejected for this reason. In these two cases, no

irregularity occurred.

In the case of

Mr. Rix. his nomination of

7 July, 1977 clearly within time, was rejected on

the ground that

he and his non'inators were unfinanclal

by reason of their failure to pay the levy referred to

on or before

30 September, 1975. It follows from my

finding that there was no such obligation and in these circumstances the rejection of the nomination was an irregularity. The result of the irregularity

was that no election was conducted. It is beyond

question that

the result of the election may have

been affected by such irregularity. The question

then arises of the appropriate orders.

I propose to make an order declarlng the elect'ion of Mr. Gallagher to be void and

a further

order directing the Industrial Registrar either to	.
make arrangements for a new election or for the steps on and from receipt of the nominations to be taken

to hold an election. If necessary,

I will provide

for Mr. Gallagher to occupy the office pending the

holding of an election.

. -

- 25 -

! .

A further question

seems to me to

arise

whether it would be appropriate

for action to be

taken under 9.171 in respect of the levy.

I have

formed no opinion as to this,

either as to

jurisdiction so to do or the propriety.

The course

I propose to take

is, having

announced the orders

I now contemplate,

to adjourn

the further hearing to an appropriate	date to allow
..	..

submissions to

be made as to the

orders.

[1978] FCA 1

23 Jan 1978