Troja v Australasian Meat Industry Employees' Union (Victorian Branch)

CATCHWORDS

Industrial law

- organisation of employees

- elections -

right to vote limited

t o financial members

- whether

members leaving industry and

o longer within eligibility

rule automatically cease to

be members

- opportunity to

vote extended

t o unfinancial members

- whether Returning

Officer failed

to ''compile a roll of financial members"

I t

whether irregularity" under s . 4 where act

not deliberate -

persons recently joining union

not given opportunity to

vote - irregularities - result of election may	have been
affected - election void and new steps ordered	- invalidities

in election

- whether persons become members despite failure

to comply with rule requiring

a signed application form

whether such failure

an "invalidity" - invalidity in making

and alteration of rules

- whether order rectifying

invalidities would

not do substantial injustice to

any member

of the organisation

- Conciliation and Arbitration Act 1904

ss. 144, 165, 171A, 171C.

F. Troja v. Australasian Meat Employees' Union (Victorian

Branch)

V. No. 37 of 1977

N. Curran v. F. Troja

V. No. 3 of 1978

J. W. Sparks v. F. Troja

V. No. 19 of 1978

Coram:

J. B. Sweeney, Keely and Deane JJ.

Date:

1 September

1978

(Reasons)

4 August 1978 (Orders)

Melbourne

Place:

. .

, l

I N TIiE FEDERAL C@UP=r OF AUSTRALIA	)
)

INDUSTRIAL

D I V I S I O X

)

VICTORIA REGISTRY

I N THE FLUTER

the Aus t ra las ian

Meat Industry Employee4 Union

- and -

'CN THE NATTER of an appl.ication by

WALTER CURRAP! pursuant to

S. 171C of

I	the Conci l ia t ion and Arbi t ra t ion
I	A c t 190k

i	(V. No. 3 of	1978)
- and -

I N THE PlATTER of an appl ica t ion by

JOHN W1LLTb.N

SPARKS pursuant tc

s.171.C of

the

s a i d

Act

(V. No.

19 of

1978)

.JUDGES HARING ORDER:

J. B. SWEENEY, KEELY and DEANE JJ.

DATE OF ORDER:

4 August

1978

IJIJERE F5.4DE:

Melbourne

ORDER OF THE COURT:

The Court

determines

that

invalidit ies

have

occurred:

(i) i n t h e e l e c t i o n i n

the Victorian Branch

the

Aust ra las ian ?ha t Industry

Employees' Union

during July

and

August

1977 f o r t h e o f f i c e s

of	Vice-President , Secretary-Treasurer ,

Organisers,

Federal

Council

Delegate

for

the

Metropolltan Area including

IJeYribec and

Dandenong,

Federal Council Delegate

for

the

Country Area,

14embershi.p of the Committee of

Management f o r Borth~:.icics-Broolclyn, Other Earn

- 2 -

I I

and Small

Goods

Factor ies and for the South

East

Area ;

( i i )

i n t h a t t h e r e

has been a f a i l u r e t o

comply with

the p rov i s ions

r u l e 5

t h e r u l e s

t h e

union

i n r e l a t ion to the admiss ion

some

persons

as members

the reo f ;

(iii) i n the making

rule

6 A and

the

a l t e r a t i o n s

made t o rules 10, 11, 13, 49 and 53 of t h e rules

of the union by the Federal Council of the union

i n Sydney on 29 November 1977 as subsequently

r a t i f i e d by

the branches.

The

Court ,

hav ing

s a t i s f i ed

i t se l f

tha t

t he

o rde r s

here inaf te r

appear ing

would

n o t

do - s u b s t a n t i a l

i n j u s t i c e

t o t he un ion o r t o

any

member

o r c r e d i t o r

the union

o r t o

any person having dealings with the union, orders:

(a)

That

the

e lec t ion

he ld

i n J d y and

August

1 9 7 7 i n

r e spec t of

all

t h e o f f i c e s

set out in

paragraph

l(i) hereof , o ther

than

the e lec t ion

fo r t he o f f i ces o f Sec re t a ry -Treasu re r

and..

Delegate to

the

Federal Council elected by the

Eletropolitan area including Werribee and

Dandenong,

be va l ida ted .

(b)

That all persons who w u l d be members of the

union

were

i t n o t f o r

the e f f e c t of

f a i l u r e t o

comply

with the provis ions of

r u l e 5 of t h e rules of t he

- 3 -

uniofi on

o r be fo re the da t e

th is order

shall be

treated

f o r a l l purposes

as having been

v a l i d l y

admitted as members of the union.

( C >

That

ac t ion

the

Federal

Council

the

union in November 1977 in making r u l e GA and i n

making

a l t e r a t i o n s

t o rules 10, 11, 13, 49 and

t h e

rules

of the union and the ac t ion

the branches

i n

t h e i r s u b s e q u e n t r a t i f i c a t i o n

thereof

i s va l ida t ed .

The re

l i be r ty

t o

apply.

I N TEE FEDERAT, COURT OF AUSTRALIA	)
)
INDUSTRIAL DIVISION	)

VICTORIA REGISTRY

I N THE

MATTER

of an e lec t ion for

o f f i c e s

i n t h e Australasian

Meat

Indus t ry Employees' Union	(Victor ian
BranLh)

- and -

I N THE NATTER

of an appl ica t ion

FRANK

TRO.JA f o r an inquiry under

P a r t

I X of

the Conci l ia t ion and

A r b i t r a t i o n Act	1904	i n t o	t h e s a i d
e l e c t i o n

(V. No. 37 of 1977)

JUDGES MAKING ORDER:

J. B. STJEENEY, KEELY and DEANE JJ.

DATE OF ORDER:

4 August 1978

WHERE MADE:

Melbourne

ORDER OF THE COURT:

The Court

determines

that an

i r regular i ty

has

occur

red

i n

o r

i n

connect ion with the elect ion conducted

the

Victorian Branch

t he Aus t r a l a s i an

Meat

Industry

Employees' Union

during

July

and August

1977

f o r t h e

o f f i c e s

Secretary-Treasurer and

Delegate to the

Federal Council elected

the Metropol i tan a rea

including Werribee and

Dandenong.

The Court,

being

the

opinion

that

t h e

r e s u l t

the

e l e c t i o n may

have been affected by such i r regular i ty ,

d e c l a r e s t h a t

the

s teps

taken , o ther

than

the call ing

for , rece ip t , acc ,cp tance

ancl

the c los jng by the

I .-

- 2 -

- -

Returning Officer

of nominatisns, in or in

ccjnnection with the election of

W, J. Curran and

J. W - Sparks to the said offices

of Secretary-

Treasurer and Delegate to	he Federal Council
respectively, are void.

,3.

The Court directs the Industrial Registrar to make

arrangements for all steps in o r in connection with the election for the said offices of Secretary- Treasurer and Delegate to the Federal Council

other than the calling

for, receipt, acceptance

and the closing

of nominacions, to be taken again.

' I

4. There be liberty to apply.

I N THE FEDERAT, COURT Gl? AUSTRALIA

)

INDUSTRIAL DIVISIOK

)

VICTORIA REGISTRY

)

I N THE

MATTER

a n e l e c t i o n f o r

o f f i c e s i n t h e

Australasian Meat

Indus t ry Employees'	Union	(Vic tc r ian
Branch)

- and -

IN THE

EfATTER

an appl ica t io i l by

FRANK

TROJA f o r an inqu i ry unclcr

P a r t

I X of

the Conci l ia t ion

and

A r b i t r a t i o n	Act	1904	i n t o t h e s a i d
election

(V. No. 37 of

1977)

JUDGES MAKING ORDER: J. B. SWJEENEY, KEELY and DEANE JJ.

DATE OF' ORDER:

4 August

1978

lJIJERE YADE:

Melbourne

ORDER OF n I E COURT:

The Court

detennines

that a n

i r r e g u l a r i t y

has

occurred

o r i n connection with the elect ion conducted

in t h e

Vic tor ian Branch

t he Aus t r a l a s i an

Meat

Industry

Employees' Union

during July and

August

1977 f o r t h e

o f f i c e s

Secretary-Treasurer and of Delegate

the

Federal

Council.

e l ec t ed

the Metropol i tan a rea

including Werribee and Dandenong.

The Court,

being

the

opinion

that

t h e

r e s u l t

t h e e l e c t i o n

may

have

been affected by

such

i r r e g u l a r i t y ,

d e c l a r e s

t h a t

t h e

steps

taken , a ther

than

the ca l l ing

f o r , rece ip t , acceptance

ar.d

t he c los ing

the

I .-

- 2 -

. r

- -

Returning Officer of nominations, in or in

connection with the election

of W. J. Curran and

J. W. Sparks to the said offices of Secretary-

Treasurer and Delegate to the Federal Council

respectively, are

void.

The Court directs the Industri,

a1 Registrar to make

arrangements for

all steps in or

in connection with

the election for the

said offices of Secretary-

Treasurer and Delegate to the Federal Council

other than the calling

for, receipt, acceptance

and the closing of nominations, t o be taken again.

4 . There be liberty to apply.

- _

I N THE FEDERAL COURT OF AUSTRALlA	)
1

INDUSTRIAL

D I V I S I O N

)

VICTORIA REGISTRY

)

I N TIIE MATTER

the Aus t ra las ian

Meat Industry Employee4 Union

- and -

I N TIIE MATTER of

an app l i ca t ion

WALTER

CURRAN pursuant to

s .171C

t he Conc i l i a t ion	and	Arb i t r a t ion
Act 1904

(V. No. 3 of 1978)

- and -

I N T I E MATTER

an appl ica t ion

b y

JO11N WILLI.d\f SPARKS pursuant to

S. 1 7 1 C o f

t he

s a i d Act

(V. No. 19 of

1978)

JUDGES WiKlNC; ORDER:

J. B. SWEENEY, KEELY and DEANE JJ.

DATE OF ORDER:

4 August

1978

WHERE MADE: Melbourne

ORDER OF THE COURT:

The Court

determines

that

inval idj- t ies

have

occurred:

(i)

i n t h e e l e c t i o n

the Victorian Branch

the

Aus t ra las ian Meat

Industry Employees' TJnioii

dur ing Ju ly

and

August

1977 f o r t h e o f f i c e s

of Vice-President,

Secretary-Treasurer,

Organisers,

Federal

Council

Delegate

for

the

14etropolitan Area including Werribee and

Dandmong,

Federal

Council

Delegate

for

the

Country Area, Nembership of

the Committee of

Management

f o r Borthviclcs-Broolclyn,

Other

€ k m

- 2 -	I
I

and Small

Goods

Factor ies and for the South

East

Area ;

( i i ) i n t h a t t h e r e

has

been

f a i l u r e t o

comply

with

the provis ions of rule 5 of t h e rules of t h e

union

i n r e l a t i o n t o

the admission of

some

persons

as members

the reo f ;

( i i i )

i n t h e making

r u l e

and the a l t e r a t ions

made t o r u l e s

10, 1.1,

13, h 9 and 5 3 of

t he rules

of the union by the Federal Council

the union

i n Sydney

29 November 1977 as subsequently

r a t i f i e d by

the branches.

The

Cour t ,

hav ing

s a t i s f i ed

i t s e l f

that

the

o r d e r s

he re ina f t e r appea r ing

wou1.d

n o t

s u b s t a n t i a l i n j u s t i c e

to the un ion o r t o any

member

o r

c r e d i t o r

the union

t o any person having dealings

with

the union, orders:

(a)

That

t h e

e l e c t i o n

held

i n

J u l y

and

August

1977

i n

r e spec t

a l l

t h e o f f i c e s s e t o u t i n

paragraph

l(i)

hereo f , o the r

than

t h e e l e c t i o n

f o r the o f f i c e s of

Secretary-Treasurer and

Delegate to

the Federal Council

e lected by the

Metropolitan area including Werribee

and

Dandenong,

be va l ida t ed .

(b)

That all persons who m u l d be members of the

union

were

i t n o t

f o r

t h e

e f f e c t

o f

f a i l u r e

t o

comply

with the p rov i s ions

r u l e 5

t h e r u l e s

Lhc.

. .

- 3 -

! .

union

o r

before tho da te of th i s order sha l l be

treated

f o r a l l purposes

as having been val idly

admitted as members of the union.

(C>

Tha t

ac t ion

the

Federal

Council

the

union in November 1977 in making r u l e GA and in

making

a l t e r a t i o n s

t o r u l e s

10,

11,

13, 49

and

53 of

t h e rules

the union and the act ion of

t he b ranches in the i r subsequen t r a t i f i ca t ion

thereof

i s va l ida t ed .

3 .

There he

l i b e r t y

t o apply.

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL

D I V I S I O N

VICTORIA REGISTRY

I N THE MATTER

e l e c t i o n f o r

o f f i c e s i n t h e

Austrdasian Meat

Indus t ry Employees' Union	(Victor ian
Branch)

- and -

I N THE MATTER of

an app l i ca t ion by

FRANK

TROJA f o r an inquiry under

P a r t I X of

the Conci l ia t ion and

A r b i t r a t i o n	Act 1904	i n t o t h e s a i d
e l e c t i o n

(V. No. 37 of 1977)

JUDGES I~IAKING ORDER:

J. B. SNEENEY, KEELY and DEANE JJ.

DATE OF ORDER:

4 August 1978

WIIEKE K.4DE:

M-lbourne

ORDER OF THE COURT:

The Court determines that an

i r r egu la r i ty

has

occu

red

in connect ion

with

the e l ec t ion conduc ted in the

Victorian Branch

of t h e Australasian Meat Industry

Employees' Union

during July and

August

1977

f o r t h e

o f f i c e s

Secretary-Treasurer and of Delegate

the

Federal Counci l e lected by the Metropol i tan area

including Werribee and

Dandenong.

The

Cour t ,

ing

t he

op in ion

t ha t

t he

r e su l t

t h e e l e c t i o n

may

have been affected by

such

i r r e g u l a r i t y ,

dec l a re s

tha t

t he s t eps

t aken , o the r

t han the ca l l i ng

fo r , r ece ip t , accep tance

and

t h e c l o s i n g

the

I-

- 2 -

- -

Retxrning Off icer

nomina t ions , i n o r i n

connect ion with the elect ion of

Curran and

J. W

Sparks

the s a i d o f f i c e s

Secretsry-

Treasurer and Delegate to	the Federal Council
r e s p e c t i v e l y , a r e v o i d .

3 .

The

Cour t

d i r ec t s

t he

Indus t r i a l

Reg i s t r a r

t o

make

arrangements for

a l l s t e p s i n o r

i n connection with

t h e e l e c t i o n f o r t h e

said

o f f i c e s

Secretary-

Treasurer

and Delegate

the Federal

Counci

o t h e r t h m t h e c a l l i n g f o r , r e c e i p t , a c c e p t a n c e

and

the

closing of nominat ions, to

taken again.

i	4 .	There	be	l i b e r t y	t o	a p p l y .
l

IN THE FEDERAL COURT

OF AUSTRALIA )

DIV SION

INDUSTRIAL

) 1

REGISTRY

VICTORIA

IN THE MATTER of an election for

offices in the Australasian Meat

Industry Employees'

Union (Victorian

Branch)

- and -

IN THE MATTER of an application by

FRANK TROJA for

an inquiry under

Part IX of the Conciliation

and

Arbitration Act 1904 into the said election

(V. No. 37 of 1977)

JUDGES MAKING ORDER: J. B. SWEENEY, KEELY and DEANE

JJ.

DATE OF ORDER:

4 August 1978

WHERE MADE: Melbourne

ORDER OF

THE COURT:

1. The Court determines that an irregularity has occurred

in or in connection with the election conducted

in he

Victorian Branch of the Australasian Meat Industry offices of Secretary-Treasurer and of Delegate to the

Federal Council elected by the Metropolitan

area

including Werribee and Dandenong.

2. The Court, being of the opinion that the result of

the election may

have been affected by such irregularity,

declares that the steps taken, other than the calling

for, receipt, acceptance and the closing by the

* :

I	-
Q

- 2 -

Returning Officer of nominations, in

or in

connection with the election of

W. J. Curran and

J. W. Sparks to the said offices of Secretary-

Treasurer and Delegate to the Federal Council respectively, are void.

3. The Court directs the Industrial Registrar to make arrangements for all steps in or in connection with the election for the said offices of Secretary-

Treasurer and Delegate to the Federal Council other than the calling for, receipt, acceptance

and the closing of nominations, to

be taken again.

4 . There be liberty to apply.

F d '

IN THE FEDERAL COURT OF AUSTRALIA	)
)

DIV SION	INDUSTRIAL	1
)

REGISTRY

VICTORIA

)

IN THE MATTER of the Australasian Meat Industry Employees' Union

- and -

IN THE MATTER of

an application by

WALTER CURRAN pursuant to s.171C of

the Conciliation and Arbitration

Act 1904

(V. No.	3 of 1978)
- and -

IN THE MATTER of

an application by

JOHN WILLIAM SPARKS pursuant to

s.171C of the said Act

(V. No. 19 of 1978)

JUDGES MAKING ORDER: J. B . SNEENEY, KEELY and DEANE JJ.

DATE OF ORDER: 4 August 1978

TJHERE MADE: Melbourne

ORDER OF THE COURT:

1. The Court determines that invalidities have occurred:

(i)

the election in the Victorian Branch of the

Australasian Meat Industry Employees' Union

during July and

August 1977 for the offices

of Vice-President, Secretary-Treasurer,

Organisers, Federal Council Delegate for the

Metropolitan Area including Werribee and

Dandenong, Federal Council Delegate for the

Country Area, Membership of the Committee of

Management for Borthwicks-Brooklyn, Other Ham

1 %

I . ,

- 2 -

and Small Goods Factories and for	the South East
Area ;

(ii) in that there has been a failure to comply with

the provisions of rule

5 of the rules

of the

union in relation

to the admission of some persons

as members thereof;

(iii)

in the making of rule

6A and the alterations

made to rules 10, 11, 13, 49 and 53 of the rules

of the

union by the Federal Council of the union

in Sydney on 29 November 1977 as subsequently

ratified by the branches.

2. The Court, having satisfied itself that the orders

hereinafter appearing would

not do substantial injustice

to the union or to any member or creditor of the union

or to any person having dealings with the

union, orders:

(a)	That the election held in July and August 1977 in respect of all of the offices set out in

paragraph l(i)

hereof, other than the election

for the offices of Secretary-Treasurer and

Delegate to the Federal Council elected by the

Metropolitan area including Nerribee	and
Dandenong, be validated.

(b)

That all persons who muld be members of the union

were it not for the effect of

a failure to comply

with the provisions of rule

5 of the rules of the

- 3 -

union on or before the date

of this order shall be

treated for all purposes

a having been validly

admitted as members

of the union.

( C >

That the action of the Federal Council of the union in November 1977 in making rule 6A and in

making alterations to rules

10, 11, 13, 49 and

53 of the rules of the union and the action

the branches in their subsequent ratification

thereof is validated.

3 . There be liberty to apply.

IN THE FEDERAL COURT

OF AUSTRALIA )

)

DIV SION

INDUSTRIAL

) )

REGISTRY

VICTORIA

)

IN THE MATTER of an election for

offices in the Australasian Meat

Industry Employees' Union

(Victorian Branch)

- and -

IN THE MATTER of an application

by FRANK TROJA for

an inquiry

under Part

IX of the Conciliation

and Arbitration Act

1904 into the

said election	in respect of two
o f f ices

(V. No. 37 of 1977)

- and -

IN THE MATTER of an application by

WALTER CURRAN pursuant to s.171C	of
the said Act

(V. No. 3 of 1978)

- and -

IN THE MATTER of an application by

JOHN NILLIAM SPARKS pursuant	to
s.171C of the said Act

(V. No. 19 of 1978)

Coram:

J. B. SWEENEY, KEELY and DEANE JJ.

REASONS FOR JUDGMENT

SNEENEY J.

1 September

1978

I agree generally

with the judgment of Keely

J. which

I have had the opportunity

of reading and I desire to add

only short observations

of my own.

The orders already announced,

with which

I also agree,

have the effect of setting aside part of the election for

Victorian officers while

at the same time validating the

election of others. In addition, the orders validate

actions taken by the Federal Council

in making alterations

to the rules which have the effect of determining the

electorate for future elections.

I wish to emphasise the importance xghich

must, in

my view, be

placed on the rules of

an organisation. Like

any other society, an organisation is entitled to make its

Laws to regulate

in relevant respects its relations

with

its members and the

way its affairs are conducted.

Part of the objects of the Act is to encourage the pointless having rules prescribing them unless the rules democratic control of organisations. In the election of

officers, democratic controls are of fundamental importance.

are obeyed.

If a government were able, despite provisions

in a constitution, to adopt its

own different rules for

election and, indeed,

to conduct the election without

taking steps to ensure that the electors

knew the rules,

none would dream of calling that

a democratic country.

With the important factor of encouraging democratic

control in mind, it was necessary	to weigh the cases before
US.

So far as thc clcction was conccmcd, although

it concerned

a number of offices, only two were brought

before us.

They were the elections for Branch Secretary-

Treasurer and Federal Council Delegate	- M tropolitan
Area.

The applicant, Mr Troja, could, had

he wished, have

ensured that the inquiry take place into

all the elections.

He chose

not to do so.

His concern was

not that the rules

be obeyed and the election conducted in accordance

with

them, but

his concern was only with offices for which

had been

a candidate.

Mr Troja's attitude to the rules was further

illustrated by the fact that, when

he first complained

to the Returning Officer,

he sought not that the rules

be obeyed but that members who had paid the contributions

for the preceding rather than the current half

year be

the electors. This because

he felt that doing this would

have enhanced his chances of success in the election.

He quite clearly sought not the democratic control and

management of the organisation but only his

own election.

In considering the appropriate orders then the

Court was faced with the position that it had only the

election to the two offices

I have mentioned before it.

If we refuse to validate the election then the

time for a fresh application under s.159 has gone. All unsuccessful candidates had been notified of the proceedings but none had chosen either to appear o to

commence his

own proceedings.

It may be that the election for the other offices

could have been challenged under

s.141 of the Act but

I think a Court, in that circumstance, might well have

been loathe to exercise its discretion in favour of

any

applicant. Moreover, it would seem that possibly different

considerations would arise if the acts of some person

o r body elected had been challenged under

s.141 on the

grounds that the acts were void because the office

holders doing them had

not been properly elected. It

would be unfair to the membership to expose the branch

to the possibility of some such challenge	in all these
circumstances.

This makes it

in the interests of the union and

the members proper and the just thing to validate the

elections other than those for the two offices challenged.

The Court's order also validates the making of the

new rule. There was

no real opposition to this and indeed

members of the

union in Queensland, who had challenged

that ballot, also did

not oppose the making

of the rule.

The new rule defines the electorate in accordance with

practicc

a n d s h o u l d e n d t h e f a i l u r e t o

comply

w i t h thc

rules.

It seems t o m e in everyone 's interest that this

course should be taken.

would add

t h a t t h e r e w e r e p a r t i c u l a r r e a s o n s

i n

this

case why

there should have been

r e g a r d t o

the

rules. Both

Sparks

and

Curran were

f u l l - t i m e o f f i c e r s

and members of

the

rule-making body.

Nor

i s T r o j a

in a

v e r y d i f f e r e n t p o s i t i o n .

had

the

pas t

sought

and won

e l e c t i o n as a member of

t h e Committee of Management

the branch and

had

led teams

cand ida te s a t o t h e r

e l e c t i o n s .

A l l

t h ree had ample oppor tun i ty to

know

t h e r u l e s

and

see

they

were

appl ied.

was

p o s s i b l e

t o

comply

with

them

s t r i c t l y i n o ther branches where condi t ions

were no

d i f f e r e n t f r o m

this branch.

Dated:

IN THE FEDERAL COURT OF AUSTRALIA )

)

DIVISION	INDUSTRIAL	1
)

REGISTRY

VICTORIA

IN THE MATTER of an election for offices in the Australasian Meat Industry Employees' Union

(Victorian Branch)

- and -

IN THE MATTER of an application

by FRANK TROJA for

an inquiry

under Part

IX of the Conciliation

and Arbitration Act

1904 into the

said election in respect of two

I ,

off

ices

(V. No. 37 of 1977)

- and -

IN THE MATTER of

an application by

WALTER CURRAN pursuant o s.171C of the said Act

(V. No. 3 of 1978)

- and -

IN THE MATTER of an application by

J O H N NILLIAM SPARKS pursuant	to
s.171C of the said Act

(V. No. 19 of 1978)

Coram: J. B. SNEENEY,

KEELY and DEANE

JJ.

REASONS FOR JUDGMENT

KEELY J. In these three matters orders were made on

1978

1 September

4 August 1978

when it was announced that reasons for judgment would be

published later.

Matter V. No. 37 of 1977 ws an application by

Frank

Troja, a member of the Australasian Meat Industry Employees' Union (the union), an organisation of employees registered under

the provisions

of the Conciliation and Arbitration Act 1904 (the

Act).

The application is for

an inquiry by the Court under

Part IX of the Act into irregularities alleged to have

occurred in or in connection with the election in the Victorian

Branch of the union conducted during the months

of July and

August 1977 for the offices of Branch Secretary-Treasurer

and Federal Council Delegate

- Metropolitan Area (the two

offices).

The application under s.159

of the Act was granted

on 18 October 1977 by the Industrial Registrar who referred

the matters to the Court.

Matter V. No. 3 of 1978 was an application under s.171C

of the Act by Nalter Curran, supported by

an affidavit sworn

9 February 1978, for

a determination of the question whether

invalidity had occurred in the elections conducted in 1977

in the Victorian Branch

of the union and for such order

the Court thought fit to rectify

any such invalidity or to

negative or modify the consequences

in law of any such

invalidity or to validate

any act matter or thing rendered

invalid by or as a result of any such invalidity.

Matter V. No. 19 of 1978 was

an application under s.171C

of the Act by

John Nilliam Sparks, supported by

an affidavit

sworn 1 June 1978, for

a determination of the question whether

an invalidity had occurred in the making of Rule

6A and in the

alterations of Rules

10, 11, 13, 49 and 53 of the rules of

the union and for such order as the Court thought fit to

rectify any such invalidity or to negative or modify the

consequences in law of any such invalidity or to validate any

act matter or thing rendered invalid by or	as a result of any
such invalidity.

The three matters were heard together by consent. Mr

Brian Lawrence of counsel appeared for Troja as

the- pplicant

in the first matter

and a respondent in the second and third

matters. Mr E. A . Laurie of Queen's Counsel appeared with

Mr B. Cooney for the union and also

for W. Curran and

J. W.

Sparks, the applicants in the second

and third matters,

who were the successful candidates for the offices of Branch

Secretary-Treasurer and Federal Council Delegate

- M tropolitan

Area respectively

- the unsuccessful candidate

in respect of

each office being Troja.

The particulars of the irregularities

alleged on behalf of Troja were amended

on 3 May 1978 after

the hearing of the matter had commenced before the Court and items 6 and 8 of the particulars were expressly withdrawn by

counsel for Troja on

8 June 1978. The alleged irregularities

remaining were

as follows

1. Contrary to Rule

53(3)(i)

of the Rules of the

Union,

the Returning Officer failed to compile

a roll of

financial members eligible to

vote, containing the

names and addresses

of all such members.

Contrary to Rule

53(8)

of the Rules of the Union,

the Returning Officer did not close the ballot thirty

five days after the date set for the closing of

nominations.

4 .

Contrary to Rule

53(8) of the Rules of the

Union and without

adcquate and proper

notice to those members of the Union

entitled to vote

in the election, the

Returning Officer postponed the date set for the closing of the ballot.

4 .

The election was so conducted that persons said election were prevented from doing

so.

5. Contrary to Rules of the Union, persons

who were

not financial members of the

Union were offered votes in the said election.

7. The Returning Officer, contrary to the Rules of the Union, offered votes to persons

who were not members of

the organisation in

accordance with the provisions of Rule

5 of

the Rules of the Union.

Particulars

Persons who were first sold

a union ticket

on or after 1st January

1970 were offered

a vote Tvhen they had

not forwarded or

caused to be forwarded to the Branch membership of the organisation.

The applications concern the Victorian Branch of

the organisation. There are six other branches, one for

each of the five other States and one for Newcastle and

Northern.

Employment in the industry is in each State seasonal

in meatworks and

on the evidence it appears that the

same conditions

as to employment apply throughout the

States.

In the industry there is

a period each year

when the number of employees required increases rapidly

and after a few months employment drops

away. There

appears in each case to

be a nucleus of permanent

employees. Others who work in the industry during the

busy season, when discharged, seek employment

in other

industries.

As well there appear to

be true casual

employees who are employed possibly once only

in the

industry, for short periods

of weeks.

While this is the position

at meatworks, in

butcher shops employment is substantially permanent.

In Victoria

a practice had grown

up under which

persons employed in meatworks were required to

financial members and to take out

a ticket of membership

in the union

during the period they were employed.

If,

however, they left the industry, although their member-

ship was

not terminated in any way, by resignation or

clearance as provided in the rules, they were not

required to pay contributions in respect of the period

they were out of the industry if they were subsequently

re-employed in the industry.

There were then very

many employees who, although

they may have worked for

a period each year in the

industry, had not paid

any contributions in respect

of the particular half year in which they were

not

employed in the industry.

The practice in Victoria

was that such

a person was treated

as being financial

6 . !

if hc had paid contributions during

the then current

half year although

he may have owed contributions

respect of past periods.

It was not

clear to what

extent this practice prevailed in retail shops but

it was general in meatworks.

It was also the general

practice in Victoria

not to require an applicant for

membership to sign

an application form for membership

despite the requirements of Rule

It is convenient to deal first with item

5 of

the alleged irregularities, namely, that persons who

were not financial members were offered votes in the

election.

As to this matter, Mr Laurie

Q.C. in his

final address said:

"If all the persons who had

gap of a

period of six months

or more than one

period of six months in the past are

to be treated as unfinancial members

then it follows that

. .. there is a

total number of

5000 odd unfinancial

members xvho were given

a vote and this

is such a large percentage

that

whatever figure one applies to it it

would be difficult to say in these two

cases the election was not voided.

...

which the r o l l of voters was drawn by

... there were membership cards from

putting a sticker on them and of those

with the membership cards who were shown

were given

a vote, there were out of

11,000 odd 5000 odd who had

not paid a

six monthly period at some time in the past prior to the January/June period

back to 1970 and from that Mr.

Lawrence

asks the court to draw the inference that

all those persons were unfinancial members

... .

At the time of the election Rule

53(19)(e)

of the

rules provided as follows:

11 Only members of the Union financial in accordance

with these rules shall be entitled to exercise

I 1

vote at any election.

Rule L0 provided:

"10. Members Unfinancial

A member

1iho owes to the Union:-

(a) Any contributions for

a longer period than one

calendar month after the due date for the

payment thereof; or

(b) Any levy for a longer period than one calendar

month after the last day

on which such levy

may be paid;

(c)

Any fine for a longer period than one calendar

month from the date of the decision imposing

I .

the fine; or

(d) ...

shall be deemed unfinancial and while

he so remains

unfinancial shall be excluded from

all the privileges,

but not from the obligations of membership.

(e)

Any member who is not employed in the trade, who is 36 months in arrears with contributions, shall

automatically cease to

be a member ... This shall

not relieve the member concerned

of his liability

to the Union.

Mr Laurie argued that some

f the persons who, according

to the membership cards, had failed to pay dues in respect

of some past period, may

h ve ceased to be members before

the period in respect of which there was

a non-payment and

may have later become members again.

On that basis any persons

who were not members

at the time of the apparent failure

pay contributions could

not be unfinancial members. It was

submitted that the evidence failed to show many of those

. .

on	the	membership	cards	were	in	this	category,	i.e. not	!
I

members at the time

of the non-payment and therefore not

members who at the time

of the election

were unfinancial

reason of

any apparent failure to pay contributions

i respect

of some past period. Accordingly it was argued

that Troja had

failed to show what approximate number of unfinancial members

were offered votes in the election. The argument necessarily

dependdon the possibility that some

of those persons (for

whom membership cards existed and

xvho were offered votes) had

ceased to be members and later had become members again.

Mr Laurie argued that persons who were for example

farmers, university students or transport drivers for

the

greater part

of any given year may have become members for

short time, then left the industry and ceased to

b members

and later returned to the industry and again become members.

The submission that they ceased to

be members was put in

two ways. First he argued that such persons may have ceased to

be members by virtue

of the operation of s.144. I am unable

to accept this argument because

in my view

s.144 (the material

part of which is set out later

in these reasons) deals only

with the subject of a person's entitlement to be admitted

as a member of an organisation and his entitlement to remain

as a member.

In my view

s.144 does not deal in any

way with

the subject of	how a person ceases to	be a member	of an
organisation.

The second argument

was that such persons automatically

ceased to be members upon leaving the industry because

they were

no longer within the class of persons who constitute

the union under Rule	4.	Rule 4 , so far as is material,
provided as follows:

11 4.

Constitution

The Union shall consist of all persons

of good

character who are employed in

any position in

in connection with, or who

are usually employed

in, or who are qualified and desire to be

employed in:

(a) the Butchering and Meat Industry ... .

Mr Laurie argued

that persons such as farmers, university

students and transport drivers ceased to fall within the

class described in Rule

4 as soon

as they left the industry

to return to their other work because they were

no longer

II employed in

any position in" the industry within the

meaning of Rule

4 and it could

not be said of them

that they

were usually employed in, or ... qualified and desire

I 1

be employed in

... the industry within

the meaning of

those words in Rule

Accepting Mr Laurie's argument

that such persons

longer fall within Rule

4 , I am unable to accept the next

step in the argument, namely,

that such persons automatically

cease to be members upon leaving their employment in the

industry.

In my view Rule

4 deals only with the eligibility

of persons seeking to be members of the union and

not with

the question of whether members automatically cease to

members upon ceasing to fall within the terms of Rule

Rule 4 on

its face does

not deal with the subject of

termination of membership. It must be read

in its context

10.

as one rule -

albeit a very important rule

- of a set of

some 68 rules. Those rules include Rules 38 and 39 which in

my view are apposite.

Rule 38 provides:

I t 38. Resignation of Members

(1) A member may resign his membership of the Union

by notice in writing if:

(a)

he ceases to be employed in or in connection

with the industry of the

Union; or

(b) the notice is given

not less than three months

before the resignation is to take effect and all contributions, fines, levies and dues are paid

to the date on which the resignation is	to take
effect.

( 2 )

e . .

Rule 39 provides:

"39. Members Leaving or Ceasing Work

(1) When any member leaves the Commonwea

.lth or gives

up working at the trade,

he may, upon payment of

all moneys due or owing, have a Clearance Ticket I

signed by his Branch or Sub-Branch Secretary, and

shall thereupon cease to

be a member of the Union.

(2) Such member shall upon his return to the Commonwealth

or to work at the trade

be eligible for re-admission

to the Union

as a member upon:-

(a) A request in writing to that effect.

(b) Production of his said clearance ticket to

Branch or Sub-Branch Secretary or the Union.

Branch Executive of

a Branch that

he has been

a member of another Industrial Union during

the currency of his Clearance.

(3) In the event of

any member of the Union entering

into business on his

own account, or becoming

employer, the Conunittee of Management or Branch

Executive of any Branch or Sub-Branch of the

Federal Council or Executive shall declare that

such person

has ceased to be

a member of the

Union and such person shall thereupon cease to be a member of the Union as from the date of such

declaration.

11.

It will be

seen

that Rule

38( l ) (a )

g ives

r i g h t

t o

r e s i g n

I t

i f a member

ceases to be

employed

i n o r in connect ion

with the

I t

industry of

the

Union".

Rule

39(1)

gives

a member who

gives

up working

at the t rade"

a r i g h t , upon

payment

a l l

dues, to

seek "a

Clearance Ticket signed

by his

... Secretary, and s h a l l

thereupon

cease

to be

a member a€

thebion". b my view a m&

is ,

a l s o

farmer, univers i ty s tudent

o r

t ransport dr iver ' 'g ives

working at the t rade"

when he re turns

t o that other occupat ion

notwithstanding that he

may

change his

occupation from one

t o

the

other

regularly

each

year.

Rule

39(2)

expressly

contemplates

a member's

r e t u r n

... t o work

at t h e t r a d e

...l ' but his r e -

admission as a member

the union

i s dependent upon, inter .a l ia ,

production of his

"Clearance

Ticket".

Rule

39(3)

could

apply

a member who becomes a farmer and

a l s o t o one who becomes a

t ransport dr iver running

his own business.

In my view Rule 4 does not bring about

a termination of

membership upon

the member

c e a s i n g t o f a l l w i t h i n t h e

class

the re

se t ou t .

The

in t en t ion

t h e r u l e s

i s t h a t membership

may

terminated in the

manner dea l t w i th

by Rule 38 and Rule

39.

Further,	Rule	lO(e)	provides	that	membership	sha l l	au tomat ica l ly	'
. S

cease in the case of

a member

"who

i s not

employed

i n t h e t r a d e ,

who

i s

months

in a r r ea r s w i th con t r ibu t ions" .

M r

Lawrence's argument

t h a t , a p a r t

from

Rule Dce)

(ad Rule 3 9 ( 3 ) ) ,

membershjp does not cease

until the member Gkes

sane

positive action

i n

compliance with the requirements of Rule

38 or Rule

39 - or under

s.145

t h e A c t i f i t s terms operate

permit

res ignat ion

circumstances not giving

r ise to such a right under Rule 38 o r Rule 39.

12.

Accordingly, it is not correct to say that membership ceased

automatically whenever

a member left the trade or returned

to some other regular occupation.

It was argued that, by reason of its course of conduct

in not enforcing the collection of contributions in respect

of periods when the members were out of work, the union was

estopped from alleging that the members were thereby

unfinancial. I do not find it necessary to decide that

question because, even if the argument were correct, in my

view Troja

would not be bound by any such estoppel. Mr Laurie

also sought to rely

upon a waiver by the union of the payment

of the contributions concerned bvt the evidence has not

established a waiver which would overcome the requirements

of the rules as to the payment

of contributions.

I consider that the irregularity alleged in item

5 has

been established. The number

of persons who were offered

votes and who were

not financial members within the meaning

of Rule 10 were approximately

4,900. There is

no way of

determining how many out of that number of approximately

4,900

unfinancial members actually voted in the election for the

two offices. However, the margins between the successful

candidates and Troja were

720 votes as to the office of

Branch Secretary-Treasurer and

336 votes as to the office

of Federal Council Delegate - Metropolitan Area. It is clear I

that this irregularity may have affected the result of the

election.

This is in itself

a sufficient reason

f o r ordering

a new election in respect

of the

two offices.

It is necessary to deal with item

7 of the alleged

irregularities because of its direct relevance to the

application for

an order under

s.171C in respect of possible

invalidities in the election. Item 7 is a contention by

counsel on behalf of Troja that

very large proportion

persons who were first sold

a union ticket on or after

1st January 1970" were offered votes in the election but had

never validly become members because "they had

not forwarded

or caused to be forwarded to the Branch Secretary

a signed

application form for membership of the organisation".

The

argument was put

hat this was

so notwithstanding that

contributions had been paid by those persons and accepted

by the union for

periods subsequent to the periods in respect

of which payment of dues had not taken place.

Rule 5, so far as material, reads as follows:

"5. Admission to Membership

Any person desirous of becoming

a member of the Union

shall forward or cause to

be forwarded to the Secretary

of any Branch of the Union (or to the Secretary of any

Sub-Branch of the Union or

to the Secretary of

any

District Committee of the Union authorised to accept applications) in the Branch or Sub-Branch or District

Committee in which such person resides,

an application

form signed by two financial members of the

Union, who,

shall attend any meeting

at the request of the Branch

authorised to accept applications

t o vouch for such

applicant, such application

to be signed by the

applicant.

Upon the receipt by the Secretary aforesaid

of the said application form, such person shall, subject

to the proviso, contained in this rule,

b and be

14.

deemed to be a member of the Union

as from the date

of the signing of the said application form. Provided

that the Federal Secretary of the Union

or a y

Secretary as aforesaid shall have and is hereby

given the power to refer

any such application to the

Committee of Management of the Branch

or Sub-Branch

in which such person applies for admission. when any

person's application is referred as above, such persons

shall be notified in writing of the result of such

reference by the Branch Secretary, and in the event of such application being accepted, then such person

shall be and be deemed to

be a member of the Union as

from the date of the signing

of such application form.

The applicant shall also forward or cause to

forwarded with the application form a sum in payment of contributions at the rate of the current half-year's contribution to the Union as fixed pursuant to Rule 6 (1) by the branch Committee of Management of the Branch in

which such applicant resides, but the payment of such

sum shall not be

a condition precedent to such applicant

being constituted

a member under this rule.

...

Mr Laurie refrained from attacking the validity of

8 .

Rule 5 but argued that, notwithstanding the provisions of

Rule 5, s.144 of the Act operated to admit to membership a

person who had paid his contributions even if

he had failed

to sign an application form as required by Rule

Section 144 of the Act, so far as material, provides:

I I (1) A person employed in connexion with

an industry, or

engaged in an industrial pursuit, is, unless

he is of

general bad character, entitled, subject to payment of

any amount properly payable in respect of membership,

to be admitted as a member of an organization (being

an organization of employees in or in connexion with

that industry or of employees engaged in that industrial

pursuit) and to

remain a member so long as

he complies

organization.

the

with the

rules

(2) Sub-section (1) does not entitle a person to be admitted as a member of an organization unless he is

included in a category of persons who are eligible

for

membership of the organization under the rules of the

15.

organization, or to remain

a mcmbcr if he ccascs to bc

so included and the rules do

not permit him to remain

a member.

(2A) Subject to sub-section

(2 ) ,

sub-section (1) has

effect notwithstanding the rules of the organization

except to the extent that it expressly requires

compliance with those rules.

( 3 ) ...

( 4 ) . . .

(5) Where a question or dispute arises

a to the

entitlement under this section of

a person to be

admitted as, or to remain,

a member of an organization,

that person, a person who is or desires to become the

employer of that person, the organization or the

Bureau may apply to the Court for

a declaration as

;

to the entitlement of	that first-mentioned person
under this section.

(5A) Subject to sub-section

( 7 ) , the Court has

jurisdiction to hear and determine

a application

under the last preceding sub-section and

may,

notwithstanding anything contained in the rules of

the organization concerned, make such order to give

effect to its determination as it thinks fit.

( 6 ) The orders Ivhich the Court

may make under the

last preceding sub-section include

an order requiring

the organization concerned to treat a person to whom

sub-section (l) applies as being a member of the

organization and, upon the making of such an order,

or as otherwise specified in the order, the person

specified in the order becomes, by force of this

Act, a member of the organization.

11 I

( 7 )

...

I am unable to accept Mr Laurie's argument

tha , by

reason of the provisions of

s.144, a person desiring to join

an organisation who pays any amount properly payable in

respect of membership" is thereby automatically

a member of

the union. I have reached that conclusion partly because

of the wording of

s .144(1) in conferring

a right upon

persons in the categories described

an partly because

16.

of the terms in which the latcr sub-sections cxprcss	thc
powers conferred upon the Court.

First, s.144(1)

does not in its terms say

that, in

the circumstances set out, the person is a member" or is "deemed to be a member" - although s.144(3) uses the

word"deemed"in providing that ... a person ... shall

be deemed to be employed in that industry . . . l ' .

S.144(1)

provides instead that A person ... is ... entitled ...

to be admitted as a member ... .

Secondly, I accept the written submission

i reply by

Mr Lawrence that the structure and terminology of sub-sections

(5) and (6) of s.144 are inconsistent with the

view that

a person becomes

a member automatically

upon payment of

the amount required by the rules of the union.

S.144(5)

confers upon various persons a right to "apply to the Court

for a declaration as to the entitlement of

... the person concerned-

a right xvhich, it should

be noted, is not dependent,

as was submitted

by Mr Lawrence, upon

a prior refusal by the

union to admit the

person to membership. S.l44(5A) gives the Court power to

determine the application

and to make such order to give

effect to its determination

as it thinks fit". S.144(6)

provides that the orders under

s.l44(5A) "include an order

requiring the organisation concerned to treat

a person ...

as being a member ... and, upon the making of such

an order,

or as otherwise specified in the order, the person specified

17.

in the order becomes, by force of this Act,

a member of the

organization". In my view s.144(6)

shows a clear legislative

intention that the person concerned shall

not be a member

until the happening of one of two possible events

- either his

admission to membership by act of the organisation

or his

becoming a member of the organisation "by force of" the Act

- an

event which only occurs upon the making of	a order by the Court
under S. 144( 6).

Mr Laurie also argued that the acceptance by the union of

the contributions

and the issue of

a ticket operated to admit

the persons in question to membership. In my view that is not

the effect

of the rules and in particular of Rule

5 which

required an "application to be signed by the applicant" - and I

have already expressed my opinion

that s.144 does not of itself

operate to admit such

a person to membership. Lastly,it was

argued that the union is estopped from relying

on Rule 5 and that

all the members of

the union including Troja

are also estopped,

but I do not consider that

any such estoppel

as to the union, if

it existed, would

be binding

upon Troja in these proceedings.

For these reasons

I have reached the conclusion that the failure

to comply with the requirerrents of

Rule 5 resulted in the persons

concerned not being members of the union.

I shall deal later

with the application under

s.171C in respect of those persons.

Having regard to what

I have said as to items

5 and 7 it

is perhaps not necessary to deal

with the other items

in the

particulars of alleged irregularities but,

as they were the

subject of argument

at some length, I shall express my views

them as briefly

as is practicable.

18.

Item 1 was based upon Rule 5 3 ( 3)(i)

which provides

that "the Returning Officer shall compile

a roll of

financial members eligible to vote, containing the names and addresses of all such members". It was argued by Mr Lawrence that the Returning Officer had failed to

compile such a roll.

The evidence showed

that the

membership cards were (leaving to one side the members

Bendigo) checked and

an orange sticker placed

upon the

card of each person who was regarded as being eligible

to vote. Mr Laurie argued that this resulted

in the

cards of the members entitled to vote being "identified

apart from all the other cards in the barrels

or boxes"

and that those cards, having been

''separated from the

other cards physically and taken under the physical

control of the Returning Officer in

a room which was

put aside for his

own purposes", constituted a "roll of

financial members eligible to vote" as required by

Rule 53(3)(i).

In my view the action

of separating out the cards of

those members regarded as being financial members from

the remainder of the cards did

not constitute compiling

a roll in the sense required by the rule. The reasons

for my view may

be briefly stated

as follows:

(a) Rule 53(3)(i)

must be considered in the context of

set of rules which includes

a provision for membership

application cards. In my view the words used in

19.

Rule 53(3)( i ) were not appropriate i f

were merely intended that

the

Returning Officer should scparatc

the

cards

f i n a n c i a l

members from the

remaining cards.

I do not consider

that

such

ac t ion could be fa i r ly descr ibed

compiling"

r o l l .

One

major

reason for

the compilation of

a r o l l i s that there should be

record of

the persons to

whom

ballot papers have been sent.

the

evidence

membership

cards

were being taken out from and inserted in

the ba r re l s o r boxes r e fe r r ed to

above. Accordingly

would

have

been impossible

to determine

a shor t time a f t e r t h e b a l l o t

xvho

had

received bal lot papers except

examination directed towards

f ind ing the iden t i fy ing o range s t i cke r s no t on ly

the cards

remaining

t h e b a r r e l s b u t

al l

the cards

i n t h e o f f i c e .

(b)

The

cards did not contain the addresses

a l l

the persons

regarded

the Returning Off icer

f i n a n c i a l members

e l i g i b l e t o

vote.

A s

t o 451 members

the addresses

were

de fec t ive in tha t

they

were

ei ther non-exis tent , inadequate or indecipherable

and

r e s u l t

was

not possible to forward bal lot papers to the

451

members i n question. Doubtless

e r r o r in the address

the

omission of

the address)in respect of only one or

a few members

would-not operate

in such a way as to prevent

a l is t of names and

addresses of f inancial

members

(if i thad been prepared)from

con-

s t i t u t i n g

a'i-011 of

f i n a n c i a l

memberd'within

t h e meaning of Rule

53(3xi).

However,

i n my

view the Returning Officer

in this case

fa i led to%ompi le

r o l l

f i n a n c i a l

members

e l i g i b l e t o v o t e ,

containing the

names and addresses of

a l l such memberd'in t h a t 451

addresses were

d e f e c t i v e t o

such an

exten t as t o defea t the purpose'

the requi rement for the

roll

to inc lude the address

t o enable ,

bal	lot	papers	to be posted 'ko each	member	e l ig ib le	to vote	at the	;
I

20.

address shown on the roll" (Rule

5 3 ( b ) ) .

The evidence

showed that the Returning Officer from his experience

as Returning Officer in the 1973 election

was aware

the existence of the problem of defective addresses,

and in my opinion

he failed to take any adequate steps

to obtain the addresses to enable him to "compile

roll of financial members

... containing the ...

addresses of all such members" in accordance with the

duty cast upon him by Rule

53(3)(i).

Although the

Returning Officer asked the Secretary to tell the

members

generally

that

they

should

inform

the

union

of any change of address and the Secretary did

so by

newsletter, this did

not meet the problem. The problem

existed not because of a failure by members to notify

changes of addresses but because the union's records

of addresses were defective in

that the addresses

recorded were inadequate, non-existent or indecipherable

in respect of

451 members to whom the Returning Officer

wished to post ballot papers.

(c)

As to the Bendigo members the Returning Officer did

not personally take any action

at all by

way of compiling

a roll of the names and addresses.

He merely received

from the Bendigo Secretary

a list which

he apparently

treated as being part

of the roll within Rule

53(3)(i).

In my opinion that action by the Returning Officer did

not amount to compiling

a roll in respect

of the

21.

Bcndigo financial members as required by

thc rulc.

In expressing that

view I am not suggesting that it is

necessary for the Returning Officer to personally

carry out all the actions involved in compiling the

roll. However, it seems to me that, as to the Bendigo

members (in respect of whom the practice was that

membership cards were

not kept), the Returning Officer

simply left it to the Bendigo Secretary

(W. A. Jennings)

without in

any way checking the list supplied by him

and

I	without asking any other person to carry out any checking. The Returning Officer's own evidence makes this clear as the following passage shows:

M€?. LAWRENCE: "Did you have any discussion with Mr. Jennings at Bendigo as to what names

you wanted

for the purpose

of an election?---I saw him

the committee of management meeting in June and

he said, 'I will have my list down to

you as soon

as I can write it up' . I said, 'Right-oh, Bill, the quicker the better'. Subsequently I received

a list of names and addresses of names

in Bendigo.

Have you still got that list?---No,

I posted that

back to him after completion of the ballot.

J.B. SNEENEY, J: It was not a list of all members

in Bendigo?---He

said he would have a list of his

members down to me.

Of those entitled to get

a ballot paper?---He did

not use those words

and I did not but I assume

that is what

he would mean, they were financial

I t

members.

It follows that in my view there has been

a breach of

Rule 53(3)(i)

and as such an irregularity" as defined in

s .4 of the Act. I also accept

Mr Lawrence's alternative

submission that, even if the failure of the Returning

22.

Off iccr to take propcr s tcps to obta in thc addrcsscs of t he 451 members was not a breach of a r u l e , i t was an

, -

I t i r r e g u l a r i t y "

defined

in the A c t .

This

i s because

i t was

. . . omission . . . whereby t h e f u l l

and free

recording

vo tes

a l l persons ent i t led to record

votes

. . .

(was)

. . .

prevented or hindered" notwithstanding

that the omission

was

not

de l ibera te prevent ion of , o r

hindrance to , the

fu l l and

f ree record ing

votes.

Items

and

3 of

t h e p a r t i c u l a r s

a l l e g e d

i r r e g u l a r i t i e s

may be

taken

together.

They are based on Rule 53(8)

which

provides

that :

"(8)

For

the information

a l l vo ters he sha l l have

p r in t ed

the

bal lot paper , the t ime and date of

t h e c l o s e

t h e b a l l o t

which

s h a l l b e t h i r t y - f i v e

(35) days a f te r	the	da te se t fo r t he c los ing	of
nominations. I t

The ba l lo t papers

as p r in t ed and posted to

members

contained the

date of

t he c lose

t h e b a l l o t

o r i g i n a l l y

f ixed by the

Returning

Officer.

However,

because

the

occurrence

p o s t a l s t r i k e

and

i t s poss ib l e e f f ec t s

upon

t h e d a t e

r e c e i p t

votes , the Returning Off icer

decided to extend the date

t h e c l o s e

t h e b a l l o t

two days. I accept

the

argument of

M r Laurie

that

the

requirement

Rule 53(8) that "the close

the

b a l l o t

sha l l be

days a f t e r

the

d a t e s e t f o r t h e c l o s i n g

nominations"

i s met

by a d a t e lihich i s at l e a s t 35 days

l a t e r , i . e .

it i s not necessary

that it be exact ly

35 days

l a t e r . I n

view

the dec is ion to ex tend the da te

was

23.

proper course for

the Returning Officer to

and, even

it i f were not permissible

on a strict reading

of Rule 53(8),

it was

a course which,

i n a l l t h e

circumstances,

was

open

to the Return ing Off icer

reason

the provisions of Rule 53(19)(d)

which

provided as follows:

"(d)

a d d i t i o n t o t h e

powers

i n t h e s e r u l e s t h e

Returning Officer

shall

take such actions and

give

such

d i r e c t i o n s as

are reasonably necessary

i n o rde r t o

ensure

t h a t no

i r r e g u l a r i t i e s

occur

in or in connec t ion wi th any e lec t ion ,

and

i n

o rde r t o

remedy

any defec ts ,

...

However,

I consider that

the Returning Officer, having

changed the take adequate steps to bring the change to the notice of

da te of the c lose of the ba l lo t , fa i led to

t h e members,

I do not express any opinion

to whether,

having	regard	to	he	specif ic	requirement	in Rule	53(8)	I
!

that

the ba l lo t pape r

shall have pr inted

it the da t e

of the c lose of the ba l lo t ,

was

necessary for

the

Returning Off icer to post

a w r i t t e n n o t i c e

the change

in t h e c l o s i n g d a t e t o

each of

t h e members

t o whom

ballot paper had been

sent,

i . e .

order to prevent the

p o t e n t i a l v o t e r s

from being

misled

in to be l i ev ing tha t

the ba l lo t c losed ear l ie r

than

the ex tended

date .

However,

the

only

s tep

taken

by the

Returning

Officer

was

t o have

n o t i c e

the

ex tended da te put in the newsle t te rs

which

were

d i s t r i b u t e d

t o

t h e

v a r i o u s

work

p laces

quan t i t i e s ,

_ I

24,

one of them being placed on thc notice board. On thc

evidence of J.

Sparks-many members do not look at the

newsletters.

In the absence of evidence

that all other

methods of communicating

with the members were investigated

and were not possible

in the circumstances then existing,

I consider that the Returning Officer failed to take

sufficient steps to ensure that the members were not

misled as to the date of the close of the ballot.

Item 4 of the alleged irregularities was

contention

that "persons who were entitled to record votes in the

said election were prevented from doing so". It appears

that persons who joined the union during the period

commencing on 1 July 1977 and ending on 24 August 1977

(the date of the close of the ballot) were

not offered a

vote in the election. The parties put in evidence before

the Court an agreed statement of facts

a to the numbers

of members concerned. However, they were not in agreement

as to whether the relevant date was the date of payment of

contributions by the

new member to the job delegate (as

evidenced in the contribution receipt books) or the date

on which the branch office received the payment from the

delegate. Mr Laurie argued that the appropriate date was the

(later) date of receipt by the branch office

and on that basis

substantially fewer members were affected

han if the date was

the(ear1ier)date of payment by:-the new member to the delegate. ~ 1

25.

However, that matter relates to the question of whether, having regard to the irregularity found, "the result

of the election may have been affected"

( s . 1 6 5 ( 4 ) ) .

I have already expressed the opinion

that the result of

the election may have been affected by the irregularity

the subject of item

5, it is not necessary to determine

the question of what is the appropriate date.

The rules

do not fix the date for closing the roll

of all persons entitled to vote. I accept Mr Laurie's argument that in those circumstances the Returning

Officer had power to fix

a date for the closing of the

roll of persons eligible to vote. However,

I am unable

to accept his further argument that the Returning Officer

fixed 30 June 1977 as that date. In my view the evidence

of the Returning Officer

shows that he did not apply his

mind t o the question of whether

he should exercise his

power as the Returning Officer to fix a date for the closing of the roll of persons eligible to vote.

In any event, in my view it would

not have been open

to the Returning Officer to fix

30 June 1977 as a proper

date for the closing of the roll.

I say that because such

a date would have been more than

7 weeks before the date

fixed by the Returning Officer for the close of the ballot.

I t

Rule 53(20) provides that Unfinancial members making themselves financial not later than 14 days before the

26.

closing of the ballot	box shall be entitled to receive	a	ballot	L
I

paper on application". Having regard to that provision I consider that the Returning Officer would not have been entitled to fix a date 7 weeks before the close of the ballot.

Such a date would have excluded from voting all financial

members who joined the

union during that period.

I consider

that Rule 53(19)(e)

intends that all financial members shall

be entitled to exercise

a vote - provided that there is

sufficient time after

a new member joins

for a ballot paper

to be issued to

him, used and returned by post before the

time fixed for the close of the ballot (see Smithers

J. in

Re Australian Glass Workers Union (1973)

22 F.L.R. 17 at p.23-25).1

For the foregoing reasons

as to the various items of

alleged irregularities I reached the conclusion

that an

irregularity occurred in the election

n respect of the two

offices. Being satisfied that the result of the election may

have been affected by the totality of such irregularities and

in particular by the irregularity described in item

5, I

considered that a declaration should

be made

that the steps

taken, other than the calling for, receipt, acceptance and the

closing by the Returning Officer of nominations, in or in

connection with the election of

N. J. Curran and

J. W. Sparks

to the offices of Secretary-Treasurer and Delegate to the

Federal Council

- Metropolitan Area respectively were void.

27.

Althbugh counsel for Troja-said “It-.is not suggested

that Mr. Roper (the Returning Officer) did

not act

in good faith,”

I formed the view

that the proper

course in all the circumstances was to direct the

Industrial Registrar to make arrangements for

all steps

in or in connection with the election for the two offices

to be taken again except for the calling for, receipt,

acceptance and the closing of nominations.

From the material before the Court as to alleged

irregularities it was clear that in Matter V.

No. 3 of

1978 a determination should be made

that invalidities

had occurred in the elections conducted in

1977 in the

Victorian Branch of

the union.

On the material I was

not satisfied that an order validating the election

to the two offices in respect of which Troja was the

unsuccessful candidate, would

not do substantial

injustice to a member of the union, namely, Troja. He

opposed the making of any such order and

he ha on 27

September 1977 applied for an inquiry into the election

in respect of the two offices.

That application was

granted by the Industrial Registrar on 18 October 1977

whilst the application for validation in Matter

V. No. 3

of 1978 was not made until

9 February 1978.

Pursuant to an order made by Smithers

J. on 17

February 1978 notice of that application was served

upon

each person who had been

a candidate in the election,

28.

informing him of the hearing date.

No candidate other

than Troja sought to appear in these proceedings and no

argument was addressed to the Court against the making

of a validating order in respect of the offices other

than the two offices

in which Troja was the unsuccessful

candidate.

In all the circumstances including the passage

of time, the effect

upon a possible further application

for an inquiry under

s.159 of the Act of

that passage

of time (see

s.159(5)), the notice

to the unsuccessful

candidates of the hearing, their failure to attend the

hearing and the absence of

any argument to the contrary,

I was satisfied that the proposed validating orders

would not do substantial injustice to the

union or to

any member or creditor of the union or to any person

having dealings with

the union.

I also formed the opinion that it

was not necessary

to direct that

any notice be given to other persons of the

intention to make the order. Accordingly

I considered

there should be

an order that the election held

in July

and August 1977 in the Victorian Branch of the Union

validated in respect of all

of the offices the subject of

the election other

than the offices of Secretary-Treasurer

and Delegate to the Federal Council elected by the

Metropolitan Area including Werribee

and Dandenong.

29.

I t

Mr Laurie also sought a declaration

that persons

paying dues to the union in accordance with the rules of

the union be

treated as members notwithstanding the

fact that they had not complied with

the provisions of

Rule 5 but are otherwise qualified to be members".

Mr Lawrence, on behalf

of Troja submitted that

'l... if

it is possible for these persons to have their membership

regularised by order of the Court, then Mr

Troja would

urge the Court to do

so".

Mr Lawrence submitted, however,

that Part IX A of the Act did

not support the order and

declaration sought by Mr Laurie.

In my opinion the Court has power under s.171C to

make the order sought. Invalidity is defined in s.171A

fol lows:

"'Invalidity' includes nullity and includes any

invalidity or nullity resulting from

any omission,

defect, error, irregularity or

... .

11 i

Under s.171C an application may be made for

a determination

of the question \?hether

an invalidity has occurred in the

management or administration ... of a branch ... .

my opinion the failure to comply with the provisions of

Rule 5 of the rules of the

union was

an invalidity in

the management or administration of the branch within

the meaning of s.171C. I was satisfied on the material

before the Court

hat an order validating the membership

of those persons would

not do any substantial injustice

30.

to the union or to any member or creditor of the union

o r to any person having dealings with the union. No

submission was put to the Court to the contrary.

In Matter V. No. 19 of 1978 I was satisfied that an

invalidity occurred in the making of Rule

6A and in the

alterations to Rules

10, 11, 13, 49 and 53 of the Rules

the Federal Council consisting of delegates elected from

each of the seven branches of the union namely the

New South Wales Branch, the Queensland Branch, the South

Australian Branch, the Victorian Branch, the Western

(the rule changes). The governing body of the union is and Northern Branch.

Rule 46 provided as follows:	I
"46. Alteration of Rules

These rules may be altered or rescinded or	n w rules
made by the Federal Council. Proposals for

alterations of rules may

be proposed by Branches

or Federal Council, and before being dealt with

by)the Federal Council written notice shall

forwarded to the Federal Secretary certifying the

proposed decisions, alterations, amendments, and

the Federal Secretary shall forthwith notify

all

Branches and forward copies of proposed alterations

amendments, or decisions. Alterations, amendments,

o r decisions adopted by the Federal Council shall

within one month from the resolution be submitted

to the Commonwealth Industrial Registrar for

registration.

The Federal Council in sessions may alter rules,

although previous notice has

not been given, and

alter or modify proposed decisions, alterations,

amendments upon the majority

of Branches ratifying

such rules. Immediately upon notification of such

ratification the same shall be submitted to the

Commonwealth Registrar for registration.

31.

At a special meeting of the Federal Council in

Sydney on 29 Novcmbcr 1977 a resolution was carricd setting

out what might be called

a "policy decision" of the

Federal Council on the question of the eligibility of members to vote. The Federal Council also carried a

resolution that the meeting empowers the Federal

Secretary to draw

up the necessary rule change

eligibility to vote in line with the previous resolution

together with

any consequential changes in the Rules

I I

found to be necessary ... .

It will be noted

that

the Federal Council did

not at that meeting determine

the precise form of the proposed rule changes.

The Federal Secretary drafted the rule changes and lodged them with the Industrial Registrar who on

21 January 1978 granted

a certificate in pursuance to

s.139(4)

of the Act. At a later special meeting of

the Federal Council, held in Sydney

o 11 May 1978,

20 of the 22 members of the Federal Council attended,

including representatives of every branch of the union.

That meeting carried

a resolution endorsing

and adopting

the rule changes prepared by the Federal Secretary

and

identifying the precise terms of those rule changes. to forward the resolution relating to the rule changes and the text of the rule changes to the Secretary of

each branch for ratification.

The affidavit material

32.

before the Court established that the rule changes were

ratified by the Committee

of Management or the Executive

of each of the seven branches of the union.

The Court directed that notice of the

in Matter

V. No. 19 of 1978 be given to Ne1

I Dated:

I . 1x .7g

I N THE FEDERAL COURT OF AUSTRALIA	)
INDUSTRIAL DIVISION
VICTORIAN REGISTRY

I N THE

MATTER

a n e l e c t i o n f o r

A u s t r a l a s i a n

Meat

Industry

Employees'

Union

(Victor ian Branch)

-and-

I N THE

MATTER

a n a p p l i c a t i o n

by- FRANK

TROJA

f o r a n i n q u i r y

under Par t

o f

t h e C o n c i l i a t i o n

and

A r b i t r a t i o n Act

1 9 0 4

i n t o t h e

s a i d e l e c t i o n i n r e s p e c t	o f	two
o f f i c e s

(V. No. 37 o f 1977)

-and-

I N THE

MATTER

o f

a n a p p l i c a t i o n

WAL'l'ER

CURRAN

p u r s u a n t t o

s . 1 7 1 C

o f

t h e s a i d

Act

(V. No. 3 of	1978)
-and-

I N THE

MATTER

of an appl ica t ion by

J O H N

hlILLIAM

SPARKS

p u r s u a n t t o

s . 1 7 1 C

o f

t h e

s a id Act

(V.

No.

1 9 of

1978)

CORAM:

J . B .

Sweeney,

Keely

and

Deane

JJ.

REASONS

FOR

JUDGMENT

DEANE J:

I n

t h i s m a t t e r

have

had

the

advantage

o f

reading ,

i n d r a f t

form,

the

judgments

o f J . B .

Sweeney J. and

Keely

Sub jec t

t o wha t

i s

sa id he reunde r ,

ag ree wi th

the i r conc lus ions

and

the

reasons

which

they

advance

for

those

conclus

ions

The

e v i d e n c e e s t a b l i s h e s

f a i l u r e , o v e r

t h e y e a r s ,

i n

t he Vic to r i an Branch o f t he Aus t r a l a s i an

Meat

Indus t ry

Employees'

Union

("the

Union")

t o

comply

wi th

the

requi rements

of the e v i d e n c e a l s o e s t a b l i s h e s f a i l u r e ,

Rules

the

Union

admission

new members.

The

i n

a number

independent

r e s p e c t s , t o

comply with

the Union

Rules

the conduct

o f

t h e

1 9 7 7

V ic to r i an

Branch

E lec t ions .

Those

f a i lu re s

i nd ica t e ,

doubt , an unfor tuna te ly casua l approach

observance

t he

Ru les .

A t l e a s t i n

far

a s

t h e p r e s e n t o f f i c e r s o f

t h e

Vic

tor

ian

Branch

are

concerned

however

the ev idence sa t i s f ies

t h a t t h e y w e r e t h e r e s u l t o f

combinat ion of genuine error

and hones t

inadver

tence

and

not

f low f rom,

o r

involve, any

purpose

o r cons idera t ion

personal

advantage .

I t

i s

ma t t e r

of specula i n r e l a t i o n t o t h e c o n d u c t o f t h e E l e c t i o n s h a d a n y e f f e c t

ion

whether

the

breaches

the

Rules

which

occurred

t h e i r

u l t i m a t e

outome.

specu la t ion

were

pe rmls s ib l e ,

would

have

l i t t l e h e s i t a t i o n

i n e x p r e s s i n g

t h e v i e w

t h a t

t h e y

d i d n o t .

Two	ques t ions wh ich a r i s e fo r cons ide ra t ion have

caused

t h a n o r d i n a r y d i f f i c u l t y .

The

f i r s t

i s

whether

t h e f a i l u r e , o v e r

t h e y e a r s ,

t o

comply

wi th

the

requi rements

o f

Rule 5 persons involved not be ing

i n r e l a t l o n t o t h e a d m i s s i o n o f

members

r e s u l t e d i n t h e

members

o f t he

Union notwithstanding

t h e f a c t t h a t t h e i r

membership contr ibut ions had been accepted

and

they

had

been

t r ea t ed

fo r

a l l purposes

members.

The

-3-

second

i s w h e t h e r ,

i n

a l l

the c i rcumstances , an order should be

made,

p u r s u a n t t o t h e p r o v i s i o n s o f

s . 1 7 1 C

o f

t h e C o n c i l i a t i o n

a n d A r b i t r a t i o n

Act

1 9 0 4

(" the Act") val idat ing

the

1 9 7 7

V i c t o r i a n B r a n c h E l e c t i o n s i n r e s p e c t o f t h e

two

o f f i c e s f o r

which

Mr.

Tro ja

was

c a n d i d a t e a s w e l l a s i n r e s p e c t o f t h e

o t h e r o f f i c e s .

A s

r e g a r d s

t h e

f i r s t o f

t h e s e q u e s t i o n s ,

t h e o t h e r

members

the Cour t a re

t h e v i e w t h a t t h e f a i l u r e

t o

comply

with

the requirements of Rule

to admiss ion of

new

members

h a s r e s u l t e d i n t h e p e r s o n s i n v o l v e d n o t b e i n g

members

the

Union.

A s

a t

p r e s e n t

a d v i s e d ,

u n c o n v i n c e d

t h a t

t h i s

i s

so .

I t i s unnecessa ry

t ha t

I express

any

firm view on t h e

question however

f o r

t h e r e a s o n t h a t ,

i n

t h e c o n t e x t w h e r e

t h e

o t h e r

members

o f

t he Cour t a r e bo th o f

t ha t v i ew,

i s

p l a i n l y

a p p r o p r i a t e t o

make

the va l ida t ing o rde r s wh ich they p ropose .

A s

r ega rds

the

second of

these

two

q u e s t i o n s ,

s e e

cons iderable mer i t

the

rguments

which

have

been

advanced

suppor t o f

t he v i ew tha t ,

i n

t he c i r cums tances , an o rde r va l id -

a t i n g t h e E l e c t i o n s i n r e s p e c t o f t h e

two

o f f i ces shou ld be

made. The a b l e f r o m t h a t w h i c h e x i s t e d i n t h e r e c e n t c a s e o f

p o s i t i o n

i n

t h e p r e s e n t m a t t e r

i s

p l a i n l y d i s t i n g u i s h -

Maxwell

v .

Gal l & Anor.

involving

the

1 9 7 7

Elect ions

the

Queensland

B r a n c h o c a n d i d a t e s h a d b e e n u n d e r t h e m i s t a k e n b e l i e f t h a t t h e o p p o r t u n i t y

t h e

U n i o n .

I n

t h a t

c a s e ,

l e a s t

some

unsuccessfu l

t o v o t e

was

be ing ex tended only to persons

who

were

q u a l i f i e d

to vo te unde r

the

Rules and

had,

t o

some

ex ten t , based

the

conduc t

o f

t he i r

campa

ign

tha t mi s t aken be l i e f .

The

ev idence ,

i n t h e p r e s e n t m a t t e r , d o e s n o t i n d i c a t e

the

existence of

any

- 4 -

such mis taken be l ie f

t h e p a r t

o f

cand ida te

o r

resulting

p r e j u d i c e

i n

t h e

c o n d u c t

h i s

c a m p a i g n .

The

relevant

breaches

t h e R u l e s ,

i n

Maxwe11 v.

Gal l

Anor . ,

o c c u r r e d

i n

b u t two

the

three Dis t r ic t s of

the

Queens

land

Branch

the

consequence tha t t he re

was

r e su l t i ng load ing o f pe rcen tage

vo t ing

in f avour o f

t hose

two

D i s t r i c t s a t

t h e e x p e n s e o f t h e

t h i r d .

The

breaches

o f

t h e R u l e s

i n

t h e p r e s e n t m a t t e r

were

pandemic

and

not

epidemic.

The

c r i t i c a l f a i l u r e t o

comply ru th

the Ru les was ,

see to approximate ly

t h e m a t t e r ,

t h e e x t e n d i n g o f

t h e o p p o r t u n i t y

t o v o t e

5000

members

who

h a d p a i d t h e i r c o n t r i b u t i o n s

in r e spec t o f t he immedia t e ly p reced ing pe r iod o f s ix mon ths

and had been i ssued wi th "cur ren t t i cke ts"

i n

r e s p e c t o f t h a t

p e r i o d b u t

who

were

deemed

"unfinancial" under

the Rules

reason

o f

f a i l u r e t o

pay con t r ibu t lons

in r e spec t o f

some

p r i o r

p e r i o d

o r pe r iods .

The

e v i d e n c e

e s t a b l i s h e s

t h a t

t h e

o f f i ce r s o f

t he Vic to r i an Branch o f

t he

Union

( inc lud ing the

Return ing Off icer

f o r

t h e

1 9 7 7

Branch Elec t ions) genuine ly

b e l i e v e d t h a t p e r s o n s f a l l i n g w i t h i n t h a t c a t e g o r y

were

e n t i t l e d

t o v o t e

i n

t h e E l e c t i o n s .

The

Branch ' s

approach

ins i s t -

i ng

upon payment of dues

i n r e s p e c t

o f

pe r iod wh i l e

member

was

out of

the

indus t ry had obvious ly cont r ibu ted ,

i n

a t l e a s t

many

and p robab ly mos t ca ses ,

t o

t he f a i lu re

o f

t h e r e l e v a n t

members

t o o b t a i n

c learance

under

the

Rules

Such

c l ea rance ,

i f

ob ta ined

would have prevented those

members

from being

unf inanc ia l wi th

the

consequence

tha

they remained unf inanc ia l

and disenfranchised under

the Rules

when,

upon resumption of

work

i n

t h e

i n d u s t r y ,

t h e y p a i d

t h e i r c u r r e n t c o n t r i b u t i o n s a n d

- 5-

r e c e i v e d

t h e i r

c u r r e n t

t i c k e t s .

Both

the

Federal

Council

t he Union

and

majority of the Branches have since supported

amendments

the Rules

to avoid that consequence

and

to permi t

members

i n t h a t c a t e g o r y

who

have paid their current dues to

v o t e i n

Union

e l ec t ions .

Section

171C(Z)(b)

the

Act

requi res

th i s Cour t ,

before

making

an o rde r r ec t i fy ing an inva l id i ty

which has

occurred in the conduct of an e lec t ion or va l ida t ing

any

a c t ,

mat te r or

th ing ,

rendered

inva l id

o r

r e su l t o f

t he

i n v a l i d i t y , t o s a t i s f y i t s e l f t h a t s u c h

order

"would

not

s u b s t a n t i a l

i n j u s t i c e

... t o any member

... of

the

organisation".

I t has

not

been

suggested

that

the

making of

an order va l ida t ing the Elec t ions in respec t of the

two

o f f i c e s

would do i n j u s t i c e t o

any member of the

Union other than

Mr.

Troja. The question

which

therefore

arises i s whether

the

making

of such an order

would do

s u b s t a n t i a l i n j u s t i c e t o

him.

Mr.

Troja was,

a t t h e

t ime of

the Elect

ions,

ful ly

aware

tha t t he oppor tun i ty to vo te

was

being extended to

the

members

ques t ion .

made

compla in t

tha t

regard .

The

view which he communicated

to the Return ing Off icer

was

t h a t

persons

who

had not been the holders of

c u r r e n t t i c k e t

during the immediately preceding period of

s i x months

but

who

had been the holder of

c u r r e n t t i c k e t i n r e s p e c t o f t h e s i x

months

pr ior

tha

per

iod

should

lven

the oppor tuni ty

voting.

I f

t h i s

view had prevailed,

the

breach

the

Rules

would have been

compounded

in tha t t he oppor tun l ty to vo te

would have been extended

to persons

who

were

cu r ren t ly ,

-G-

d i s t i n c t

from

h i s t o r i c a l l y , u n f i n a n c i a l .

t h e o t h e r h a n d , t h e

members

u n i o n a r e e n t i t l e d

to expec t

tha t

those

appoin

ted

under

and

der

ing

thor

from,

i t s

rules

will

t a k e c a r e

t o e n s u r e

that

t h e

a f fa i r s

t he un ion , and ,

i n pa r t i cu la r ,

any un ion e l ec t ions ,

a r e conduc ted

s t r i c t l y

i n

a c c o r d a n c e

w i t h

t h o s e

r u l e s .

The

f a c t

t h a t c e r t a l n

ru les may

appear

to be unwise

o r

involve

unnecessary

formal -

i t i e s o r

unduly burdensome procedures

may

c o n s t i t u t e a

v a l i d

r e a s o n

f o r

s e e k i n g

t o

a l t e r

them.

I t n e i t h e r

w a r r a n t s

nor

excuses

reach

o f ,

o r

i n d i f f e r e n c e

t o ,

t h e i r

p r o v i s i o n s .

Mr.

T r o ~ a

was

e n t i t l e d t o h a v e h i s c a n d i d a t u r e f o r t h e

two

o f f i c e s

determlned

accordance

with

the

Rules

the

Union.

has

procured the conduct of an inqui ry under

Par t

I X

o f

t h e

Act

i n t o a l l e g e d i r r e g u l a r i t i e s i n t h e E l e c t i o n s f o r t h e

two

pos -

l t i o n s .

h a s

e s t a b l i s h e d

t h a t

h o s e

E l e c t i o n s

w e r e

n o t

conducted

accordance

the

Rules .

h a s e s t a b l i s h e d

t h a t

t h e i r r e g u l a r i t i e s

were

such

t o make

i t

mat te r of specula t -

i on

regardless of what one 's view

t o

t h e p r o b a b i l i t i e s

may

whether he would have been e lec ted to e i ther of

those

o f f i c e s

i f

the Elec t ions had been conducted in accordance wi th

the Rules

the Union.

v iew, the p re sen t ca se

i s

p l a i n l y

b o r d e r l i n e

one .

Ul t imate ly ,

have

come

t o

t h e

c o n c l u s i o n

t h a t

n o t

s a t i s f i e d t h a t a n o r d e r v a l i d a t i n g t h e E l e c t i o n s i n r e s p e c t o f

t h e

two

o f f i ces wou ld no t

s u b s t a n t i a l i n j u s t i c e t o

Mr.

T r o j a .

I n t h e r e s u l t ,

I was

and am

i n agreement with the

orders

which have been pronounced.

[1978] FCA 74

1 Sep 1978