Wiseman v Professional Radio & Electronics Institute of Australasia

WISEMAN v. PROFESSIONAL RADIO AND ELECTRONICS INSTITUTE OF AUSTRALASIA
(1978) 35 FLR 24
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Evatt(1), Northrop(1) and Keely(2) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Rules - Offences - Conduct considered by committee of management to be detrimental to well-being of organization - Construction - Whether provision conferred jurisdiction on committee of management to determine charge or formed part of description of conduct proscribed - Whether rule oppressive, unreasonable or unjust - Nature of power exercised by court - Statutory objects - Democratic control of organizations and participation by members in affairs of organizations - Absence of objective standards by which proscribed conduct might be judged - Conciliation and Arbitration Act 1904, ss. 2 (f), 140 (1) (c).

Conciliation and Arbitration - Registered organizations - Rules - Rule constituting organization agent of member and preventing members acting on own behalf in relation to industrial matters - Construction - Whether oppressive, unreasonable or unjust - Purposes of registration - Nature and functions of organizations registered under Act - Representative capacity - Doctrine of party principal - Whether doctrine applicable only in relation to minimum award rates and conditions - Effect of rule to prevent member acting to secure benefits above minimum wages and conditions - Restraint of trade - Restriction on freedom of member to contract for wages and conditions above legal minima - Statutory objects - Nature of federal arbitral process - Registration of organizations in order to effectuate functioning of federal arbitral machinery - Conciliation and Arbitration Act 1904, ss. 2, 140 (1) (c).

Conciliation and Arbitration - Registered organizations - Rules - Directions for performance - Rule requiring members to be notified of decisions of annual conference within specified time - Provision enabling members to seek referendum where decision unacceptable - Resolution of annual conference to provide retiring allowance for officer - Amount of allowance not specified - Publication of resolution in journal of organization - Whether publication constituted notification to members - Publication not within specified time - Whether decision invalidated for non-observance of condition subsequent - Payment of allowance - Discretion of court - Conciliation and Arbitration Act 1904, s. 141.

Conciliation and Arbitration - Registered organizations - Rules - Directions for performance of - Election - Rule providing for appointment of scrutineers by committee of management - Failure of committee to appoint - Appointment by returning officer - Whether irregularity in conduct of election - Whether result of election affected - Discretion of court - Conciliation and Arbitration Act 1904, ss. 141 (1), (6), (7), 165(4).

HEADNOTE

The Conciliation and Arbitration Act 1904 describes the chief objects of the Act as including under s. 2 (f): "To encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization". Section 140 provides by sub-s. 1 (c) that the rules of an organization shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of registration of organizations under the Act, are oppressive, unreasonable or unjust. Section 141 provides by sub-s. (1) that the court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules.

The rules of an organization provided by r. 6 - Institute to Negotiate: "All subjects, questions, matters and things directly or indirectly involving, or affecting the status of members, the seeking or attaining of the objects of the institute or any of them, the relationship between employer and employee or disputes or differences between them, or between one class of the members on the one hand and another class on the other hand, or between member and member, or affecting the objects of the institute or any of them or any matter in which conciliatory measures or negotiations may be of avail or necessary or the construction or interpretation of the objects or rules of the institute shall be dealt with solely by the institute and not by any individual member or body of members, to the intent that members shall and they and each of them hereby constitute the institute as their representative and agent accordingly. Any dealings or contract with an employer other than the acceptance of employment shall be performed through or as authorized by, the institute." Rule 15 - Injurious Reports Not to be Circulated - provided as follows: "No official or member of the institute shall circulate or cause to be circulated any report which may be considered by the governing council to be detrimental to the well-being of the institute or calculated to injure any member thereof." Rule 16 - Penalties for Breach of Rules - provided as follows: "For a breach of the foregoing rules numbered 8 to 15 inclusive, or any of them, a member shall be liable to be cited before the council and dealt with by them in the following manner: . . . (b) . . . for the first offence, by the infliction of a fine not to exceed the sum of twenty dollars ($20) . . . "

The governing council, having resolved that a charge under r. 15 was proved against a member, imposed a fine upon the member under r. 16. The member instituted proceedings under s. 140 as to the validity of rr. 6 and 15 and under s. 141 seeking orders that the respondents treat as null and void the resolution of the governing council finding the charge proved and imposing the fine. Orders were also sought under s. 141 directing the respondents to perform the rules, first, by treating as null and void a resolution of the annual federal congress of the organization authorizing payment of a retirement allowance to the then general secretary of the organization and secondly, by ceasing to recognize Mr. O'Connell, one of the respondents, as assistant secretary of the organization.

Held: (1) On a proper construction, the words "considered by the governing council to be detrimental to the well-being of the institute or calculated to injure any member thereof" formed part of the description of the duties and obligations imposed on members by r. 15, the breach of which constituted an offence under r. 16: r. 16 and not r. 15 conferred jurisdiction on the governing council to determine whether a member was guilty of an offence, being a breach of a duty or obligation imposed by the rules.

Australian Workers' Union v. Bowen (1948), 77 CLR 601, per Latham C.J., at p 606, applied.

(2) In determining whether a rule contravened s. 140 (1) (c), regard must be had to the objects of the Act (which expressly include the encouragement of the democratic control of organizations and the full participation by members in the affairs of the organization) which are to be used as a guide by which the challenged rule is to be tested: the court must ascertain, on the existing state of affairs and in the light of the statutory objects whether the operation of the rule is one of the kind described by s. 140 (1) (c).

Cassidy v. Amalgamated Postal Workers' Union of Australia (1967), 11 FLR 124, applied.

(3) As r. 15 laid down no objective standards to describe the conduct proscribed, the standards being wholly subjective to the members of the governing council, which was both prosecutor and judge, the conduct proscribed was vague and uncertain. Accordingly, r. 15 contravened s. 140 (1) (c), being oppressive in the sense of being unjustly burdensome and harsh and unreasonable as going beyond what was fair or equitable and orders under s. 141 should be made because of the invalidity of the resolution of the governing council which relied upon that rule.

Consideration of the history of and nature of power conferred on the court by s. 140.

(4) Per Evatt and Northrop JJ. (Keely J. dissenting) - r. 6 did not contravene s. 140 (1) (c) because: (a) "The purposes of the registration of organizations" under the Act, as that phrase was used in s. 140 (1) (c) included the creation of instruments for the more effective exercise of the constitutional power. (b) It was received doctrine that an organization, in the propounding of claims on behalf of its actual and potential members, acted in an independent capacity, as a party principal and not merely as an agent for such members whereas the principal provision of r. 6 was inserted in the rules at a time when this doctrine had not attained its current formulation but rather at a time when the concept of an organization was more closely assimilated to that of an agent for its members. (c) It was not part of the function of the court in exercising judicial power under s. 140 to substitute its mode of thought for that of the organization: subject to the provisions of the Act, an organization is at liberty to determine its own internal structures, formulate policies, and pursue objectives it considered in the best interests of its actual and potential members. (d) While the rule prevented individual members from placing themselves outside the rules or setting themselves above the organization, e.g. by seeking over-award payments and benefits additional to those prescribed as minimum award entitlements, the organization was empowered to negotiate on behalf of members for such benefits or to authorize members to do so for themselves. (e) The rule did not prevent full and frank discussions between members nor inhibit members' exercise of rights under the rules.

Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908), 6 CLR 309; The Queen v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1957), 97 CLR 71; The Queen v. Clarkson; Ex parte Victorian Employers Federation (1973), 131 CLR 100; and Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (1925), 35 CLR 528, considered.

Per Keely J. - The rule contravened s. 140 (1) (c) because: (a) The rule imposed restrictions on a member's freedom to some extent and in some respects, e.g. a member's pursuit of wages and conditions more favourable than those prescribed as minimum award entitlements. (b) While, in the propounding of industrial claims an organization was representative of the class of persons associated together in the organization, the claims propounded were normally concerned to secure minimum wages and conditions and did not serve to inhibit a member's right, as a matter of law, to contract for wages and conditions above those attained or prescribed by awards as minima. (c) In determining that a rule contravened s. 140 (1) (c) it is not necessary that a finding be made that the rule is specifically contrary to one or other of the objects of the Act nor the purposes of registration of organizations under the Act. (d) None of the statutory objects contemplated the existence of a rule having the effects upon the freedom of members of an organization which resulted from r. 6 nor, on the evidence, was such a rule necessary or desirable by reason of the nature of trade unionism, the nature of organizations nor circumstances peculiar to the organization concerned.

Williams v. Hursey (1959), 103 CLR 30; Clark v. Printing and Kindred Industries Union (1977), 30 FLR 39; Burwood Cinema Ltd. v. Australia Theatrical and Amusement Employees' Association (1925), 35 CLR 528; The Queen v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1957), 97 CLR 71; True v. Amalgamated Collieries of W.A. Ltd. (1940), 62 CLR 451; Federated Gas Employees' Industrial Union v. Geelong Gas Co. (1919), 13 CLR 437; and Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association; Ex parte Waterside Workers' Federation of Australia (1915), 9 CAR 293, considered.

Cameron v. Australian Workers' Union (1959), 2 FLR 45; and Cassidy v. Amalgamated Postal Workers' Union of Australia (1967), 11 FLR 124, applied.

(5) While the resolution of the annual federal congress concerning the payment of a retiring allowance to the then general secretary was not notified to all members within thirty days of its passage (as required by r. 24), as the requirement of the rule as to notification was in the nature of a condition subsequent, its non-fulfilment did not affect the validity of the prior resolution made within power and in compliance with the rules.

(6) On the failure of the governing council to appoint scrutineers under r. 61 (d), the returning officer's appointment of members as scrutineers, assuming without deciding that such latter appointment constituted an irregularity in the conduct of the non-officially conducted election for an office of the organization, was not such as to effect the outcome of the election: in the circumstances, the making of orders under s. 141 would obviate the provisions of s. 165 (4) and, accordingly, the court should, in the exercise of its discretion refuse the orders sought.

HEARING

Melbourne, 1977, August 2, 15, 16; 1978, February 2, 23, 24; May 5; August 11. #DATE 11:8:1978

ORDERS NISI

A member of an organization registered under the Conciliation and Arbitration Act 1904 sought declarations under s. 140 that certain of the rules of the organization contravened s. 140 (1). The member also sought orders under s. 141 directing the respondents to perform and observe the rules by treating as null and void a resolution of the governing council of the organization finding the member guilty of a charge under r. 15 and imposing a fine under r. 16; by treating as null and void a resolution of the 1977 annual federal congress of the organization authorizing payment of a sum of money to Mr. J. E. McGowan, and by ceasing to recognize the respondent, Mr. R. M. O'Connell, as assistant secretary of the organization. The full facts appear in the judgment of Evatt and Northrop JJ.

E. A. H. Laurie Q.C. and B. C. Cooney, for the claimant.

P. A. Twigg and M. F. Moore, for the respondents.

Cur. adv. vult.

Solicitors for the claimant: J.N. Zigouras & Co.

Solicitors for the respondents: W. G. McNally & Co.

JUDGE1

August 11.

The following judgments were delivered.

EVATT AND NORTHROP JJ. The Professional Radio and Electronics Institute of Australasia (the institute) is an organization of employees registered under the provisions of the Conciliation and Arbitration Act 1904 (the Act). The governing council is the committee of management of the institute. John Wiseman (the claimant) is and at all material times was a member of the institute. On 28th June, 1977, the governing council resolved: "That the charges as submitted in the general secretary's letter of 26th May, 1977, to the president, Mr. S. Ellis against Mr. J. Wiseman be upheld under r. 15 and that a fine of $20 be imposed on Mr. J. Wiseman in accordance with r. 16". On 2nd August, 1977, the claimant obtained a rule nisi calling upon the institute to show cause why the Federal Court of Australia should not, in the exercise of the powers conferred by s. 140 (2) and (3) of the Act, order and declare that r. 6 and r. 15 of the rules of the institute each contravenes s. 140 (1) of the Act: see s. 140 (5). This proceeding was identified as matter V No. 23 of 1977. On the same day the claimant obtained a rule nisi calling upon the twenty-five individual respondents, each being a member of the institute, to show cause why the court should not, in the exercise of the powers conferred by s. 141 (1) of the Act, order and direct that each of them perform and observe the rules of the institute in specified respects. One of the orders so sought by the claimant was that the respondents should perform and observe the rules of the institute by treating as null and void and of no effect the said resolution of the governing council upon the grounds, first, that on 28th June, 1977, r. 15 of the rules of the institute contravened s. 140 (1) of the Act and thus the resolution which was dependent upon r. 15 was null and void and of no effect and, secondly, that in the exercise of the powers conferred by r. 16, the governing council had failed to comply with the requirements of natural justice and thus the resolution was null and void and of no effect. This proceeding was identified as matter V No. 24 of 1977. (at p29)

The two proceedings came on for hearing before the court on 20th February, 1978, and, with the consent of all parties, were heard concurrently. There is no reason why the claimant could not have instituted all claims in the one proceeding. On 23rd February, 1978, in matter V No. 23 of 1977, the court made the following order: "The court orders and declares that the whole of r. 15 of the rules of the Professional Radio and Electronics Institute of Australasia contravenes s. 140 (1) of the Conciliation and Arbitration Act 1904" and announced that it would publish its reasons at a later date. On 24th February, 1978, in matter V No. 24 of 1977, the court made the following order: "That the respondents and each of them perform and observe the rules of the Professional Radio and Electronics Institute of Australasia by treating as null and void and of no effect the resolution of the governing council of 28th June, 1977, wherein it was resolved 'that the charges as submitted in the general secretary's letter of 26th May, 1977, to the president, Mr. S. Ellis, against Mr. J. Wiseman be upheld under r. 15 and that a fine of $20 be imposed on Mr. J. Wiseman in accordance with r. 16'"; and announced that it would publish its reasons at a later date. The further hearing of each proceeding was then adjourned. We now publish our reasons for judgment for the two orders made. (at p29)
Rule 15 is as follows: "15. Injurious Reports Not to be Circulated. No official or member of the institute shall circulate or cause to be circulated any report which may be considered by the governing council to be detrimental to the well-being of the institute or calculated to injure any member thereof." Rule 16 is headed "Penalties for Breach of Rules" and the relevant provisions are as follows: "For a breach of the foregoing rules numbered 8 to 15 inclusive, or any of them, a member shall be liable to be cited before the council and dealt with by them in manner following: . . . (b) . . . for the first offence, by the infliction of a fine not to exceed the sum of twenty dollars ($20) and for a second or any subsequent offence it shall rest with the council to take such action as it thinks fit regarding the conduct of such member." In the rules the word "council" is defined as meaning the governing council. (at p29)
Section 140 (1) (c) of the Act is as follows: "140. (1) The rules of an organization - . . . (c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust." The chief objects of the Act are set out in s. 2 and for present purposes the relevant object is as follows: "(f) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization." (at p30)
Mr. Laurie Q.C., who with Mr. Cooney appeared for the claimant, submitted that r. 15 contravened s. 140 (1) (c) of the Act in that having regard to the objects of the Act, it imposed conditions, obligations or restrictions upon members of the institute which were oppressive, unreasonable or unjust. He submitted that the rule was bad in three respects namely (1) that it is so vague and uncertain as to the circulation of the forbidden material that it imposes on members a condition which is unreasonable or oppressive; (2) that the offence is made subject to the view of the governing council instead of specifying conduct which was forbidden; and (3) because the words "detrimental to the well-being of the institute or calculated to injure any member thereof" are so vague and uncertain that it is impossible for a member to know whether he is committing an offence and thus imposes on members a condition which is unreasonable or oppressive. (at p30)

Mr. Twigg, who appeared with Mr. Moore for all the respondents in both proceedings, submitted that on its true construction the words "be considered by the governing council to" appearing in r. 15 should be construed as conferring on the governing council jurisdiction to determine any charges brought for an alleged breach of r. 15 and did not constitute part of the offence created by the rule and in this respect relied upon a line of argument similar to that expressed by Latham C.J. in Australian Workers' Union v. Bowen (1948) 77 CLR 601, at p 606 . He then submitted that on its true construction, r. 15 did not contravene s. 140 (1). He further submitted that if the words set out above were not to be construed in that sense then the court should declare that those words contravened s. 140 (1) of the Act whereupon they would be deemed to be void but that the remaining part of r. 15 would remain and would not contravene s. 140 (1) of the Act. (at p30)
It is necessary to ascertain the true meaning of r. 15 before deciding whether, on its proper construction, it contravenes s. 140 (1) of the Act. In Australian Workers' Union v. Bowen (1948) 77 CLR 601 , the rule under consideration provided that a meeting of a committee of management of the organization "may dismiss from membership any member of the union who in its opinion is guilty of misconduct, provided that at least twenty-one (21) days' notice of the investigation is given". On the issue of the construction of that rule Latham C.J. said: "The Executive Council acted under this rule in expelling the applicants. They were given more than twenty-one days' notice of investigation. The charges were preferred in writing. They were given full opportunity to answer the charges and did answer them at considerable length. The rule provides that a member may be dismissed who, in the opinion of the Executive Council, is guilty of misconduct. There is no doubt that in fact the Executive Council did form this opinion. If the rule had provided that a person who was guilty of misconduct could be expelled (without the express reference to the opinion of the adjudicating body) there would have been room for an argument that the decision of whether particular behaviour amounted to misconduct was not committed to that body but that it could be independently examined in a court. The terms of the rule, however, do not leave room for such an argument and the only question (so far as the terms of this rule are concerned) is whether the Executive Council was really, i.e. bona fide, of opinion that the applicants had been guilty of misconduct" (1948) 77 CLR, at p 606 . (at p31)
In the present case, Mr. Twigg submitted that the words "be considered by the governing council to" in r.15 should be construed in a similar way to support the jurisdiction conferred by r.16 empowering the governing council to act as a domestic tribunal. In other words, if any member makes a complaint that another member has circulated a report which may be detrimental to the well-being of the institute or calculated to injure a member thereof, r. 15 makes it clear that the governing council is the body which has the power to determine whether the member cited is guilty of the offence charged. (at p31)
This submission cannot succeed. Each of rr. 8 to 15 inclusive imposes duties and obligations upon members of the institute. Rule 16 provides that breaches of those duties and obligations shall constitute offences and confers a power on the governing council to impose penalties on members guilty of committing those offences. Rule 15 is the only rule within that group which makes specific reference to "be considered by the governing council to" or words to a similar effect. It follows therefore that those words must form part of the description of the duties or obligations imposed by r.15, the breach of which constitutes an offence under r.16. (at p31)
In rule 16 the reference to "the council" clearly confers jurisdiction on the governing council. It is sufficient in itself to confer that jurisdiction with respect to deciding whether a member is guilty of an offence, being a breach of a duty or obligation imposed by rr. 8 to 15 inclusive. There is no basis for saying that the words in question in r. 15 can, in any way, add to that jurisdiction. It follows that the duty or obligation imposed by r. 15 is to be determined by reference to the conduct which is considered by the governing council to be within the duty or obligation stated. In other words, the opinion of the governing council forms part of the description of the proscribed conduct. The nature of an offence of this kind is clearly illustrated by reference to a rule considered by the Commonwealth Court of Conciliation and Arbitration in Lasarewitch v. Australian Railways Union (1955) 82 CAR 14 . (at p32)
There the rule provided that any member who distributed any document to other members "which in the opinion of 'the committee of management' is likely to cause disaffection amongst the members or injury to the union, shall be liable to be charged with such offences". The offence was the distribution of a document which, in the opinion of the committee of management, was likely to have a specified result. In the present case, the offence is the circulation of a report which is considered by the governing council to have a specified result. To put this another way, it is only that conduct which the governing council considers may be in breach of r. 15 which constitutes the offence described in r.16 and for which the accused member is to be cited to be tried by the governing council, being the very body which already has considered the matter and has formed the opinion that the circulation of the report may be detrimental to the well-being of the institute or calculated to injure any member thereof. This result is to be contrasted with a rule which provides that after an opinion has been formed by a committee of management, the matter is to be decided by a separate body. This latter position is clearly illustrated by reference to a rule considered by the Commonwealth Industrial Court in McKenzie v. Administrative and Clerical Officers' Association, Commonwealth Public Service (1962) 5 FLR 342, at pp 353-354 . There the rule provided that a committee of management of an organization could summon a member "to show cause before a committee appointed by it" why that member should not be dealt with by that body on a charge of such conduct, past or present, which the committee of management "considers inimical to the interests of the association". (at p32)
We turn now to consider whether, on its true construction, r.15 contravenes s.140 (1) of the Act. Prior to 1958, comparable legislation enabled the Commonwealth Court of Conciliation and Arbitration and after 1956 the Commonwealth Industrial Court to: "disallow any rule of an organization which, in the opinion of the Court - . . . (b) is tyrannical or oppressive . . . ; or (d) imposes unreasonable conditions upon the membership of any member or upon any applicant for membership . . . ". (at p32)
The High Court has held that in that form the section conferred a power which formed no part of the judicial power of the Commonwealth: Consolidated Press Ltd. v. Australian Journalists' Association (1947) 73 CLR 549 ; The Queen v. Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 . In the latter case, Dixon C.J. expressed reasons to support that view and said:

"In the fourth place, the criteria set by pars. (b), (c) and (d) are vague and general and give much more the impression of an attempt to afford some guidance in the exercise of what one may call an industrial discretion than to provide a legal standard governing a judicial decision. Parenthetically, it may be remarked that the meaning is by no means self-evident of the expression 'impose unreasonable conditions upon the membership of any member'" (1957) 100 CLR, at p 290 . In the same case Kitto J. said: "Section 140 seems to me an example of a provision which, though it empowers a court to do an act - the disallowing of a rule - which is not insusceptible of a judicial performance, nevertheless is found to mean, on a clear preponderance of considerations, that the function for which it provides is to be performed as an administrative function, with a more elastic technique, and more of an eye to consequences and industrial policy generally, than could properly be expected of a court. The authority given is to act in pursuance of an opinion, formed either spontaneously or upon representations made by a person who may or may not be affected by the rule in question. The kinds of rules which may be disallowed are described as possessing any of several qualities which are indicated in terms so broad as to be more appropriate for conveying general conceptions to a person engaged administratively in performing a function conceived of as part of a system of industrial regulation than for stating, to a body acting judicially, grounds of jurisdiction which it is to interpret and apply with precision" (1957) 100 CLR, at pp 305-306 . Later in his judgment the Chief Justice said:

"This does not mean that I regard the question whether rules of an organization should be quashed as necessarily outside the judicial power of the Commonwealth. On the contrary, in my opinion there is no reason why, if by or under statute the rules of an organization must conform with certain tests or standards of justice, fairness or propriety, jurisdiction to quash the rules might not be conferred upon a federal judicial court by an enactment framed in some form appropriate to s. 76 (ii) of the Constitution. Nor does it seem to me that the existence of a discretion necessarily takes such a jurisdiction outside judicial power. Of course it must not be an arbitrary discretion; it must be a judicial discretion proceeding upon grounds that are defined or definable, ascertained or ascertainable, and governed accordingly. Needless to say, in other respects the federal enactment must fall within the legislative power of the Commonwealth" (1957) 100 CLR, at p 291 . (at p34)
Following Spicer's case the Conciliation and Arbitration Act 1958 (Act No. 30 of 1958), by s. 24 repealed the old s. 140 and substituted a new s. 140 into the Act in a form similar to the existing s. 140. In The Queen v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Shearer's case) (1960) 103 CLR 368 , the High Court unanimously held that the jurisdiction conferred by the new s. 140 of the Act was part of the judicial power of the Commonwealth: see McTiernan J. (1960) 103 CLR, at p 373 , Fullagar J. (1960) 103 CLR, at pp 376-377 , Kitto J., with whose reasons Dixon C.J. agreed (1960) 103 CLR, at pp 381-384 , Menzies J., with whose reasons Taylor J. agreed (1960) 103 CLR, at pp 386-388 and Windeyer J. (1960) 103 CLR, at p 389 . (at p34)
The words "having regard to the objects of this Act and the purposes of the registration of organizations under this Act" first appeared in s. 140 (1) (c) of the Act in 1958. We have already set out the relevant object of the Act for present purposes. This object was inserted into s. 2 of the Act in 1973 (Act No. 138 of 1973, s. 3). The present application of decisions of the Commonwealth Court of Conciliation and Arbitration and the Commonwealth Arbitration Court relating to the earlier comparable but different provisions corresponding to s. 140 (1) (c) of the Act and decisions of the Commonwealth Arbitration Court given at a time when the object set out above was not included in s. 2 of the Act, may thereby be affected. (at p34)
In deciding whether r. 15 contravenes s. 140 (1) (c) of the Act, it is necessary for the court to have regard to the objects of the Act. This means that the court must take those objects into account: see Cassidy v. Amalgamated Postal Workers' Union of Australia (1967) 11 FLR 124, at pp 126-127 , per Dunphy and Kerr JJ. The objects are to be used as a guide by which the challenged rule is to be tested and the court must ascertain, on the existing state of affairs and in the light of the objects of the Act, whether its operation is or is not of one of the described kinds. (at p34)
In our opinion, r. 15 imposes upon members of the institute, conditions, obligations or restrictions which, having regard to the objects of the Act, are oppressive and unreasonable. Members of the institute are to be encouraged to participate fully in the affairs of the institute and its democratic control. A member may be opposed to a policy adopted by the governing council. He may try to persuade other members that the governing council has adopted a policy detrimental to the well-being of the institute. A member may wish to contest an election for an office on the governing council and, for this purpose, may claim that the existing office bearers are pursuing policies detrimental to the well-being of the institute. In either of these circumstances, if the member circulates a report stating his policy and containing criticisms of the policy being enforced by the governing council, the governing council may consider the report detrimental to the well-being of the institute and, having formed this opinion, cite the member to appear before it and then sit in judgment of the member so cited: see r. 16. No objective standards are laid down to describe conduct which may be detrimental to the well-being of the institute and thus there are no standards by which a member is able to decide whether his proposed activity is contrary to the provisions of r. 15. The standards, if any, are purely subjective to the members of the governing council. Further the governing council is both prosecutor and judge. The proscribed conduct is so vague and uncertain that it is impossible for a member to know in advance whether he is committing an offence or not. In this manner the rule is oppressive in the sense of its ordinary meaning of unjustly burdensome or harsh. Further the rule is unreasonable in the sense that it goes beyond what is fair or equitable. (at p35)
If the words "be considered by the governing council to" were deleted from r. 15, the objection that the governing council was both prosecutor and judge would no longer be valid but even then, for the other reasons already stated, the rule would contravene s. 140 (1) (c) of the Act. Accordingly we do not find it necessary to express an opinion on whether the court, in the facts of this case, has power to declare that those words only contravene s. 140 (1) of the Act or whether, if it had that power, it should exercise its discretion in favour of the institute. (at p35)
We turn now to consider matter V No. 24 of 1977. This is a proceeding brought under s. 141 of the Act. The resolution of the governing council under challenge is dependent upon r. 15. If on 28th June, 1977, being the date the resolution was passed, r. 15 contravened s. 140 (1) of the Act, the named respondents to this proceeding cannot rely upon that rule and accordingly the resolution would be null and void and of no effect, see Shearer's case (1960) 103 CLR 368 and Allen v. Townsend (1977) 31 FLR 431, at pp 463 , per Evatt and Northrop JJ. (at p35)
Mr. Twigg, very properly in our opinion, conceded that the circumstances which led the court to hold that on 23rd February, 1978, r. 15 contravened s. 140 (1) of the Act existed on 28th June, 1977, and that there were no facts then in existence which could lead to a contrary opinion. For the reasons already expressed, we hold that on 28th June, 1977, r. 15 contravened s. 140 (1) of the Act and accordingly hold that the resolution under challenge is null and void and of no effect. Because the court has come to this conclusion, it is not necessary to set out details of the facts leading to the passing of the resolution or to express an opinion on whether the resolution was vitiated by reason of a denial of natural justice. (at p36)
The hearing of these two proceedings resumed on 8th May, 1978. On that occasion, Mr. Cooney appeared for the claimant and Mr. Twigg appeared for the respondents and, with the consent of all parties, the remaining issues for decision were heard concurrently. As formulated during the hearing, the claimant is seeking the following orders: (1) Under s. 140 of the Act, that r. 6 of the rules of the institute contravenes s. 140 (1) of the Act. (2) Under s. 141 of the Act, that the respondents, other than the institute, (a) perform and observe the rules of the institute and in particular r. 24 by treating as null and void and of no effect the resolution of the 1977 annual federal congress of the institute authorizing payment of a sum of money to one Mr. J. E. McGowan, alternatively, that the respondent Mr. C. McGrane perform and observe r. 24 by causing to be distibuted to all members of the institute the decision of the 1977 annual federal congress authorizing the said payment; (b) perform and observe the rules of the institute and in particular r. 32 and r. 61 by the respondent, Mr. R. M. O'Connell, ceasing to hold himself out as the assistant secretary of the institute and by the other respondents ceasing to recognize and to treat Mr. R. M. O'Connell as assistant secretary of the institute. (at p36)
We turn our attention to the claim arising under s. 140 of the Act. The rules of the institute are contained in four unnumbered chapters. The first three chapters are included under a general heading "Constitution". The first chapter is headed "Interpretation". By this chapter the word "award" is given a very wide definition and one of the defined meanings is any agreement or understanding, industrial or otherwise, which may exist between the institute and an employer or organization of employers. The second chapter is headed "Objects" and contains seven paragraphs, two of which we quote: "(a) To maintain a good understanding between the members and their employers in relation to their employment. To use all reasonable, constitutional and proper means to redress all grievances arising out of their employment to which the members are now or shall be subject, and to protect the interests of members in all matters arising out of their employment. (b) To combine all persons in the employment categories referred to in r. 4 with the objects that they shall, through the institute, be represented in all or any matters whatsoever connected with or relating to their profession or employment or their position or status therein or thereunder and without limiting either scope or authority to promote and protect the interests of its members." The third chapter is headed "Description of industry" and specifies the industry in connexion with which the institute is registered. The fourth chapter is headed "Rules" and contains rules numbered one to seventy-seven inclusive and three schedules. Each rule has its own heading. For present purposes, reference is made to a number of these rules. Rule 4 specifies the conditions of eligibility for membership of the institute by means of listing a large number of occupations in or in connexion with radio and electronics. Rule 6 is as follows: "6.INSTITUTE TO NEGOTIATE. All subjects, questions, matters and things directly or indirectly involving, or affecting the status of members, the seeking or attaining of the objects of the institute or any of them, the relationship between employer and employee or disputes or differences between them, or between one class of members on the one hand and another class on the other hand, or between member and member, or affecting the objects of the institute or any of them or any matter in which conciliatory measures or negotiations may be of avail or necessary, or the construction or interpretation of the objects or rules of the institute shall be dealt with solely by the institute and not by any individual member or body of members, to the intent that members shall and they and each of them hereby constitute the institute as their representative and agent accordingly. Any dealings or contract with an employer other than the acceptance of employment shall be performed through or as authorized by, the institute." (at p37)

The first paragraph of r. 6 was inserted in the rules in the year 1935. The second paragraph, in its present form, was inserted in September 1977. Prior thereto, the second paragraph was as follows: "No member shall (save as to accepting employment) contract or deal with any shipowner or employer except through the institute, and if he shall do so he shall become liable to pay to the institute a sum not exceeding twenty dollars". (at p37)
Immediately before r. 8 there appears the following heading "Restrictions on and duties of members". This heading appears to apply to rr. 8 to 51 inclusive. Rule 8 is as follows: "8. AWARD RATES ARE MINIMUM. A member shall not accept any employment at rates below those prescribed in the terms of any award, or approved of by the institute." Rule 9 requires a member not to perform duties other than those associated with his particular occupation except when authorized by the governing council. Rule 10 requires a member, while working under any award, to notify the general secreatary of any charges of neglect made against him which he considers to be wrongly made and r. 11 requires a member to report to the secretary any suspected breaches of award by any employer. Rule 12 is as follows: "12. AWARDS TO BE OBSERVED. Only an unusual circumstance or emergency shall be construed into sufficient reason to render necessary a departure from either the terms and conditions of any award or the constitution, objects, rules, regulations, resolutions, or orders of the institute". Rules 15 and 16 have been referred to earlier in these reasons for judgment. (at p38)
The claimant challenges the whole of r. 6. Section 140 of the Act provides:

"140. (1) The rules of an organization -

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

(b) shall not be such as to prevent or hinder members of the organization from observing the law or the provisions of an award;

(c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust." (at p38)
Mr. Cooney argued that r. 6 of the rules of the institute contravened each of pars. (a), (b) and (c) of s. 140 (1) of the Act. There is no substance in the submissions that r. 6 contravenes either of pars. (a) or (b) and those submissions are rejected. (at p38)
The objectives of the Act are set out in s. 2 and are as follows:

"2. The chief objects of this Act -

(a) to promote goodwill in industry;

(b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes;

(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;

(d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes;

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

(f) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization." (at p38)
It is necessary to construe r. 6 as a first step in deciding whether it contravenes s. 140 (1) (c) of the Act, but before we do this, it is desirable to make some observations concerning "the purposes of the registration of organizations under this Act". (at p38)
The purposes of the registration of organizations under the Act, stated broadly, are to facilitate the creation and settlement of disputes arising from industrial relationships between groups or classes of persons ascertained by reference to the conditions of eligibility prescribed by the rules of organizations which, upon registration, become corporate bodies separate and distinct from their members: generally see Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908) 6 CLR 309 ; The Queen v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 ; Williams v. Hursey (1959) 103 CLR 30 ; and The Queen v. Clarkson; Ex parte Victorian Employers' Federation (1973) 131 CLR 100 . (at p39)
By the Jumbunna case (1908) 6 CLR 309 it was established that legislative provisions providing for the creation of representative bodies both of employers and employees came within the powers conferred by s. 51 placitum (xxxv) of the Constitution, aided where necessary by the incidental power contained in placitum (xxxix). Thus organizations are instruments for the more effective exercise of the constitutional power and the legislature has power to make laws by which organizations can be "made and unmade at the will of Parliament" and by which organizations can be "moulded, re-fashioned or abolished": see Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442, at p 453 per Isaacs J. The legislature thus is empowered to make laws relating to the method by which organizations are to be controlled, their affairs are to be regulated and elections to committees of management within organizations are to be conducted. In this respect, reference may be made to what was said by the High Court comprising Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. in Federated Ironworkers' Association of Australia v. Commonwealth (1951) 84 CLR 265, at pp 282-283 : "We think it follows from the principles to which we have already referred that the organizations registered and incorporated under the Conciliation and Arbitration Act may be regulated under the incidental power with a view to ensuring that the election of officers is duly carried out. The federal power to provide for the formation, registration and incorporation of such organizations depends upon the necessity or the desirability of large classes of men being represented. Representation involves much more than the establishment of a corporation, that is to say, of a legal person capable of being made a party to legal proceedings and of being the object of legal rights and duties. It involves the representation of the men by a committee of management or other officers who control the actions of the corporate body. The authentic expression of the will of the members in appointing officers must be incidental to the subject matter of the constitutional power. It arises directly out of the considerations which afforded the constitutional justification for the provisions which are now Divns 1 and 2 of Pt VI of the Conciliation and Arbitration Act 1904-1951 and Schedule B (see particularly Schedule B (1) (a))." (at p40)
Despite the views expressed in the Jumbunna case (1908) 6 CLR 309 , there remained a lingering belief that to constitute an industrial dispute within the meaning of s. 51 placitum (xxxv) of the Constitution, an industrial disagreement must exist between definite employers and definite or ascertainable employees, members of the organization assuming to represent them: see R. V. Commonwealth Court of Conciliation and Arbitration; Ex parte William Holyman & Sons Ltd. (1914) 18 CLR 273 . A practical illustration of the application of that old doctrine can be seen in Pearce v. W. D. Peacock and Co. Ltd. (1917) 23 CLR 199 . The doctrine applied in the William Holyman case (1914) 18 CLR 273 was overruled by Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528 . Today the position is that an organization acts in an independent capacity and not merely as an agent for its members. It is a party principle and, apart from the question of whether a dispute is real or not, the acts and conduct of individual members of the organization are immaterial: generally see the Dunlop Rubber case (1957) 97 CLR, at pp 80-85 , per Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. (at p40)
The first paragraph of r. 6 of the rules of the institute, framed as it was in 1935, appears to be an attempt to express the concept of organizations as it was being developed by decisions of the High Court. To some extent, r. 6 goes further in so far as it constitutes the institute the representative and agent of each member but this is not inconsistent with the concept of organizations. In so far as the rule provides that the specified subject matters shall be dealt with solely by the institute and not by any individual member or body of members, it must be construed as meaning that the institute is required to act in accordance with the rules of the institute. It is the legal body, but its affairs are to be managed and directed by natural persons, being its members, and they must comply with the rules of the institute. The rule prevents any individual member or any body of members from placing themselves outside the rules of the institute and setting themselves above the institute. When the rule speaks about "all subjects, questions, matters and things directly or indirectly involving, or affecting the status of members" it must be read as referring to those subject matters being the interests of members as members of the institute: see Williams v. Hursey, per Fullagar J. (1959) 103 CLR, at p 57 . (at p40)
The second paragraph of r. 6 is ancillary to the first paragraph but contains one exclusion from the prohibitions imposed upon the members of the institute. The exclusion relates to "the acceptance of employment". This matter is left to the individual member. The phrase "the acceptance of employment" is not concerned with the niceties of the principles relating to the law of contract and the related doctrine of offer and acceptance. It does not say "the acceptance of an offer of employment". The phrase "the acceptance of employment" is to be construed as meaning the entry into a state of being employed. It is immaterial who makes the offer and who accepts the offer. The rule does not prevent a member seeking employment by initiating moves for a contract of employment. The phrase "accepting any employment" appearing in r. 8 of the rules of the institute must be construed in the same way. (at p41)
Earlier in these reasons for judgment we referred to the history of the provisions contained in s. 140 (1) of the Act. Prior to 1958, the power conferred by s. 140 was of an administrative nature whereby the Court of Conciliation and Arbitration and the Commonwealth Industrial Court, by the exercise of the power of disallowance, was able to mould and re-fashion the rules of an organization to give effect to (in the phrase used by Kitto J. in The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. (1970) 123 CLR 361, at p 376 ) "its own idiosyncratic conceptions and modes of thought". The position was changed by the amendments made in 1958 and, although the stated criteria may be vague and difficult to apply, nevertheless "a duty is cast upon the court to determine, as a mixed question of law and fact, whether the challenged rule does or does not possess one of those qualities" specified: Shearer's case per Fullagar J. (1960) 103 CLR, at p 376 . This, essentially, is the basis of a judicial power. See also The Queen v. Joske; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1974) 130 CLR 87 and The Queen v. Joske; Ex parte Shop Distributive and Allied Employees' Association (1977) 135 CLR 194 . (at p41)
It must be remembered that the court is exercising a judicial power. The court is not at liberty to substitute its modes of thought for those of an organization. Subject to the provisions of the Act, an organization is free to determine its own internal structures; it is free to determine its own policies; it is free to pursue objects which it considers to be desirable; and it is free to decide what it considers to be in the best interests of its members or potential members. In exercising those powers an organization can affect adversely a person who, although eligible to be a member, in fact is not a member: Blackley v. Devondale Cream (Vic.) Pty. Ltd. (1968) 117 CLR 253 . The court, in the exercise of the judicial powers conferred by s. 140 of the Act, is not permitted to substitute what it considers to be desirable internal structures of an organization; what it considers to be desirable policies; what it considers to be desirable objects; and what it considers to be in the best interests of the members of the organization; by determining that what is being pursued by the organization imposes on members of the organization conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act, are oppressive, unreasonable or unjust. (at p42)
The main submission put by Mr. Cooney was that r. 6 prevented a member from seeking employment by the making of offers. On the proper construction of r. 6, this submission must fail. It was next put that r. 6 prevented a member seeking overaward payments and additional benefits. If r. 6 has this effect, nevertheless the institute has power to negotiate on behalf of the member for those types of benefits or to authorize the member himself to so negotiate. Whether the institute does so or refuses to do so is a matter of policy to be determined solely by the institute. Having regard to the objects of the Act and the purposes of the registration of organizations, it cannot be said that in this respect r. 6 imposes conditions on members which are oppressive, unreasonable or unjust. To do so would be to ignore the long history of decisions of the High Court dealing with the purposes of registration of organizations. Rule 6 does not prevent full and frank freedom of discussions between members of the organization; it does not prevent a member from exercising rights conferred on him by the rules of the institute or by the Act and if necessary from instituting and prosecuting proceedings in court to enforce those rights. It was argued further that a member would be liable to a fine if he did act on his own without the authority of the institute and Mr. Cooney relied on the vagueness of the words "unusual circumstances or emergency" appearing in r. 12. This argument misconceives the purpose of r. 12. Rule 6, consistently with the concept of organizations, restricts the right of a member to act individually without being authorized by the institute. If he so acts he may be liable to a penalty. Rule 12 provides an exception to the obligation of a member charged with a breach of a rule and if "unusual circumstances or emergency" existed, the member charged is not liable to a penalty. Rule 12 cannot be used as an argument to support the challenge to r. 6. (at p42)
We turn to consider the first order sought under s. 141 of the Act. The rules of the institute make no provision for branches or divisions of the institute. By-laws made by the institute provide for divisions and, in fact, there are in existence five separate divisions each operating pursuant to the provisions of the by-laws. In these proceedings no claim is based on the fact that the rules of the institute failed to make a provision required by the Act or the regulations nor to the fact that the 1977 annual federal congress included persons being divisional representatives. For the purpose of these proceedings, there is no challenge to the validity generally of the decisions made by the 1977 annual federal congress. (at p43)
Rule 24 of the rules of the institute constitutes the annual federal congress. The congress comprises the executive of the institute and divisional representatives and is required to meet in March in each year. Where the membership of a division is one thousand or less, the divisional secretary shall be the divisional representative. The business of the congress includes the following: "(j) to consider and deal with any other agenda items submitted by divisional general meetings and by governing council". The rule provides that no agenda item within (j) shall be on the agenda of the congress until it has been considered and voted upon by at least one divisional general meeting or by the governing council and notified to all members. The rule contains the following provisions:

"Decisions at an annual federal congress shall be by simple majority.

"Decisions of an annual federal congress shall be notified to all members within thirty (30) days of the date of making, and if any decision of congress is considered unacceptable to members, then on receipt of a requisition signed by at least one hundred (100) financial members, the general secretary shall arrange for a referendum of all members to decide the matter or matters concerned. Such requisition must be received at head office within thirty (30) days of the date of publication of the congress decision. No decision of an annual congress shall be implemented until the expiration of at least seventy (70) days.

"Annual federal congress shall be convened by the giving of notice in writing to divisional secretaries or divisional representatives, as the case may be, and to the executive officers of the institute, at least twenty-one (21) clear days before the commencing date of the congress, stating the business to be dealt with by the congress and the date, time and place of holding the congress.

"Divisional secretaries shall, by 31st December each year, lodge with the general secretary full details of the matters which their divisional annual general meetings resolved for inclusion on the annual federal congress agenda.

"All governing council matters for inclusion in the annual federal congress agenda must be determined and notified to the general secretary by 31st December each year." (at p43)
The institute has some 5,000 members but no evidence was given as to the number of members within the Victoria-Tasmania division, being the division to which the claimant belongs. (at p44)
We set out extracts from r. 54, which lists the duties of the general secretary of the institute: "(q) He shall prepare and distribute to all members, or cause to be prepared and distributed to all members, an edited annual report which shall contain the president's annual address and the general secretary's annual report to each annual federal congress. (r) He shall implement, in so far as they apply to him, all decisions of the annual federal congress, a special general meeting, governing council, the executive, or a sub-committee of governing council as soon as possible after they have been conveyed to him, after having allowed to elapse any period required by these rules for possible amendment by the members." (at p44)
Pursuant to r. 60, "Requisition for referendum", one hundred financial members may requisition a referendum which shall be decided by secret ballot of all financial members and a majority decision takes precedence over any decision of the annual federal congress or special general meeting. (at p44)
The by-laws provide for a divisional committee to conduct the affairs of the division and for the election of officers to that committee. There are elected executive officers, including a divisional secretary, and the by-laws specify the duties of the executive officers. The by-laws provide for divisional meetings and we set out part of the relevant by-law: "5. MEETINGS. The annual general meeting of the division shall be held in the month of November each year. A divisional special general meeting shall be held in the following March to consider the annual federal congress agenda, but shall have no power to alter decisions made by the previous divisional general meeting. The divisional committee shall meet at least once every two months." (at p44)

The institute publishes a periodical named QTC and this periodical is sent by pre-paid post to each member of the institute. Printed in different issues of QTC are the agenda for the ensuing annual federal congress, the resolutions passed at the annual federal congress, a statement of income and expenditure of the institute for each financial year ending 30th September and other items of general interest to members. In addition, resolutions passed at an annual federal congress and the agenda for meetings of the congress are forwarded to each divisional secretary. (at p44)
The 1976 congress resolved that a retirement allowance should be paid to Mr. J.E. McGowan, the then general secretary of the institute, who was about to retire and directed that an actuarial exercise be carried out to determine the amount of the allowance. The resolution was printed in the July 1976 issue of QTC and was as follows: "Retirement allowance - J. E. McGowan. That the payment on retirement of Mr. J. McGowan be a lump sum calculated on an actuarial basis determined as if the current staff superannuation scheme had been in for the full period of his employment". Notice of the agenda item pursuant to which this resolution was passed was given in the February 1976 QTC as follows: "5. Retirement allowance - J. E. McGowan and C.J. McGrane. (Governing council). The level of supplementary payment by the institute to Mr. J. McGowan and Mr. C. McGrane to provide for the period of service prior to the introduction of the staff retirement fund be determined by the 17th annual federal congress". The calculation was undertaken using a factor of six and one-half per cent interest over a certain period of the time of employment and the details of that calculation resulted in an allowance of $43,773. Details of this result were forwarded to divisional secretaries and the question of the retiring allowance had been referred to the divisional general meetings held in November 1976. Following those meetings, the Queensland divisional secretary asked Mr. McGrane, the general secretary, why the factor of six and one-half per cent interest and not nine per cent had been used in the calculation and requested Mr. McGrane to cause a further calculation to be made using the factor of nine per cent. The divisional secretaries of the Victoria-Tasmania division and the South Australia division supported the request and the calculation was done. The new calculation resulted in an allowance of $49,467. The new calculation and amount of the allowance were included in a supplementary report of the general secretary and this was referred to the divisional general meetings held in March 1977, that is prior to the annual federal congress. The 1977 congress was held from 14th to 18th March and among the resolutions passed thereat were the following:

"'That the 18th A.F.C. offer Mr. J. E. McGowan sincere appreciation for his valuable services to PREIA over the thirty years of his employment with the institute and wish him long years of healthy, happy retirement.' (at p45)
Retirement allowance - J. E. McGowan. The general secretary explained the supplementary assessment of Mr. McGowan's entitlements as presented to congress and explained the method of calculation used. Congress resolved: "That Mr. J. E. McGowan's retirement benefit be as contained in the supplementary report to A.F.C.'" (at p45)
In April 1977, a document containing all resolutions passed at the 1977 Congress was forwarded to each divisional secretary. The resolutions, including the resolution set out above, were printed in the May issue of QTC. The retiring allowance to be paid to Mr. McGowan arose out of the 1976 congress and the general secretary's report and therefore was not included in the agenda as a separate resolution for the 1977 congress published in the February issue of QTC. That issue, however, gave notice of the time and place of the March divisional meetings and at those meetings the supplementary report of the general secretary was available for inspection and discussion. The allowance of $49,467 has been paid in full but was not paid until well after seventy days from the conclusion of the 1977 Congress. The payment was made as to $26,358 from the general funds of the institute and the balance partly from the superannuation fund, to which Mr. McGowan had contributed, and partly from the insurance policy that had been taken out for that purpose. Printed in the February 1978 issue of QTC was the statement of income and expenditure for the year ended 30th September, 1977, and an item of expenditure therein showed a retirement benefit of $26,358 and an item of information in that issue referred to an additional retirement allowance of $26,358 as resolved by the 18th A.F.C. (the 1977 Congress) which was a non-recurring liability. The retiring allowance in fact paid was $5,594 greater than the amount referred to in the first calculation. This sum of $5,694 had to be found from the general funds of the institute. (at p46)
The case put by Mr. Cooney was that the purpose of r. 24 was to enable each member to know of the decisions made by the congress thus giving members an opportunity to requisition a referendum. To give effect to this purpose, no decision of the congress was to be implemented until the expiration of at least seventy days after the congress. Decisions of congress are required to be "notified to all members" within thirty days of the date of the making of the decision and any requisition for a referendum should be received at the head office of the institute "within thirty days of the date of publication of the congress decision". He submitted that the rule required that each member should be notified individually of the decisions and that "notified" meant that each member should be made aware of the decision and this meant more than merely publishing the resolution as passed. In the present case, the resolution did not specify the amount of the allowance to be paid to Mr. McGowan and thus the publication of the resolution was not a notification of the decision. Further, the May 1977 QTC, which contained a copy of the resolution, was not distributed to members within thirty days after the date of the decision. He submitted that the failure to notify the decision at all, or within the specified time, constituted a contravention of r. 24 and that as a consequence, the decision itself became null and void and of no effect and could not be treated as authorizing the payment of the allowance. He submitted further that in order to give effect to the rules, the decision of the congress should not be implemented until the expiration of at least thirty days after members were notified of the decision. (at p46)
In our opinion, the word "decisions" used in r. 24 must be construed as meaning "resolutions". The rule states that "decisions" at congress shall be by simple majority. This means that resolutions must be moved, and if approved by a majority, become decisions. The provisions of r. 22, "Rules of debate", support this view. Accordingly, notification to all members of resolutions passed by congress complies with the requirements of r. 24. Any other interpretation of the word "decisions" would lead to confusion and difficulties. The general secretary would be required to give his opinion of what a resolution meant and his opinion may well be incorrect. (at p47)
In the present case, the resolutions were not notified to all members until the May 1977 issue of QTC. This was not within thirty days of the date of the passing of the resolutions and thus the requirements of r. 24 have not been observed. This non-observance or non-compliance with r. 24, however, cannot affect the validity of the decision to pay the retiring allowance. The requirement is in the nature of a condition subsequent, the non-fulfilment of which does not affect the validity of the prior resolution made within power and in compliance with the rules. Accordingly, we would not make the order in the form of the first alternative set out in 2 (a) above. (at p47)
The decision relating to the payment of the retiring allowance was published in the May 1977 issue of QTC. The amount of the general funds of the institute expended towards that allowance was published in the February 1978 issue of QTC. Accordingly, there is no basis for making the order in the form of the second alternative set out in 2 (b) above. (at p47)
In concluding this part of the reasons for judgment, we refer to r. 60. No restrictions on the time for the requisition for a referendum is imposed by that rule. The claimant has had ample time to seek the required number of signatures to institute a referendum on this question. The retiring allowance has been paid in full. If the claimant had made out a case, this may have been a case where it would have been appropriate for the court to exercise its discretion under s. 141 of the Act and refuse to make an order giving directions for the performance or observance of the rules of the organization. (at p47)
The final matter for consideration can be dealt with shortly. Rule 30 creates the executive offices of the institute one of which is the office of assistant general secretary. The officers are elected by secret ballot of all the members in accordance with the provisions of rr. 31, 32 and 61, which prescribe the method of conducting the election. In late 1976, the returning officer, in accordance with the rules, conducted an election for the office of assistant general secretary for which two nominations had been received, namely Mr. R. M. O'Connell and the claimant. Rule 61 (d) provides: "(d) At noon on the day following the closing date of the ballot the votes shall be collected and counted by the returning officer and two scutineers appointed by the governing council from time to time for this purpose". The closing date of the ballot was 7th February, 1977. On 8th February, 1977, the returning officer came to collect and count the votes but discovered that the governing council had failed to appoint scrutineers. Accordingly he requested two members of the institute who were then present and who had not been nominated for any position in the election, to act as scrutineers. They agreed to so act and the counting of the votes then proceeded in their presence. Out of 4,040 ballot papers posted to members, a total of 1,605 ballot papers were returned and the result of the ballot for the office of assistant general secretary was as follows:

"R. M. O'Connell 1,301

J. J. Wiseman 301

Informal 3"

The returning officer declared Mr. R. M. O'Connell elected. (at p48)

Mr. Cooney submitted that the failure of the governing council to appoint scrutineers and the failure to have two scrutineers so appointed present at the counting of the ballot, was a non-compliance with the rules of the institute and amounted to an irregularity in the conduct of the election and accordingly the election should be treated as invalid and of no effect. (at p48)
The election was not an officially-conducted ballot and therefore s. 141 (5) and (9) of the Act do not apply, but the proceedings were instituted within twelve months commencing on the date of the completion of the election: s. 141 (6) (b) (ii). Reference is made to s. 141 (7) of the Act. Section 165 (4) of the Act provides as follows: "(4) The Court shall not declare an election, or any step taken in or in connexion with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities." (at p48)
Assuming, but without deciding, that the failure by the governing council to appoint scrutineers and the counting of the votes in the presence of the two persons "appointed" by the returning officer amounted to a non-compliance with the rules of the institute and therefore was an irregularity within the meaning of the definition of that word contained in s. 4 of the Act, nevertheless we are of opinion that the result of the election was not affected by that irregularity. The majority for Mr. O'Connell was overwhelming. There is no suggestion of any other irregularity. In the exercise of our discretion under s. 141 of the Act, we would refuse to make the order set out in 2 (b) above. To do otherwise would be to defeat the provisions of s. 165 (4) of the Act. (at p49)

JUDGE2

KEELY J. In these matters I have had the advantage of reading the reasons for judgment of Evatt and Northrop JJ. I agree with the reasons there appearing for the order made by the court on 23rd February, 1978, in matter V No. 23 of 1977 as to r. 15 of the rules (the rules) of the Professional Radio and Electronics Institute of Australasia (the institute). I agree with the orders proposed as to the matters remaining for decision in matter V No. 24 of 1977 and I agree in general with the reasons for judgment as to those matters. However, as I am unable to agree with the decision in matter V No. 23 of 1977 as to r. 6 of the rules I shall set out the reasons for my opinion. (at p49)

The claimant, who is and at all material times was a member of the institute, sought a declaration that the whole of r. 6 contravenes s. 140 of the Act. As an alternative the claimant argued that such a declaration should be made as to certain parts of r. 6 constituting by far the greater part of the rule. Counsel for the respondent institute argued in support of the whole of r. 6. He expressly disavowed any intention of putting an argument in the alternative that certain parts of the rule did not contravene s. 140 and that therefore any declaration by the court should be expressly limited to part only of r. 6. On the contrary, Mr. Twigg submitted that: " . . . if the court cannot see our interpretation of r. 6 as being quite properly within the history of restraint of trade, then there is no point in trying to cut down the rule and save part, particularly in the way my friend has sought to do it because there is no way one can give it any ordinary grammatical meaning by cutting it down in any way." (at p49)
I have formed the opinion that r. 6 does contravene s. 140 (1) (c) of the Act and I consider that the court should make an order declaring that the whole of r. 6 contravenes s. 140 (1) (c) of the Act. (at p49)
Rule 6 is in the following form: "6. INSTITUTE TO NEGOTIATE. All subjects, questions, matters and things directly or indirectly involving, or affecting the status of members, the seeking or attaining of the objects of the institute or any of them, the relationship between employer and employee or disputes or differences between them, or between one class of members on the one hand and another class on the other hand, or between member and member, or affecting the objects of the institute or any of them or any matter in which conciliatory measure or negotiations may be of avail or necessary, or the construction or interpretation of the objects or rules of the institute shall be dealt with solely by the institute and not by any individual member or body of members, to the intent that members shall and they and each of them hereby constitute the institute as their representative and agent accordingly. Any dealings or contract with an employer other than the acceptance of employment shall be performed through or as authorized by, the institute." (at p50)
Section 140 (1) (c) provides (inter alia) that the rules shall not impose "upon . . . members . . . restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust". (at p50)
It was argued by Mr. Cooney on behalf of the claimant that r. 6 contravenes s. 140 (1) (c) of the Act. The argument was put in various ways including the contention that r. 6 "would inhibit a member's right to negotiate with his employer for something over and above the award conditions". (at p50)
Having regard to the conclusion which I have reached that r. 6 contravenes s. 140 (1) (c) I do not find it necessary to deal with the further (briefly put) submission that the rule also contravenes s. 140 (1) (a) and s. 140 (1) (b). (at p50)
It is clear on the face of the rule that it imposes restrictions upon an individual member's freedom to some extent and in some respects. It was conceded by the respondent institute that the rule prevented an individual member from personally seeking an over-award payment for himself. Rule 6 requires that such a matter "shall be dealt with solely by the institute and not by any individual member". (at p50)
In my view the rule in its terms requires each "individual member" (and any "body of members") to refrain from a large number of actions including amongst other things each of the following courses of conduct: (a) asking a prospective employer if he would be prepared to pay the member concerned an amount of wages (or grant employment conditions) more favourable to him than the minimum fixed by award or agreement with the institute; (b) asking his present employer if he would be prepared to pay to the member concerned an amount of wages (or grant employment conditions) more favourable to him than the minimum fixed by award or agreement with the institute; (c) discussing with his present employer the question of the existence (or the extent) of a particular duty (e.g. where the member disputes the existence or the extent of such a duty) upon the member concerned by the terms of his employment: (d) discussing with his present employer the question of the existence (or the extent) of a particular right in the member by reason of the existing terms of his employment (e.g. where the employer disputes the existence or the extent of such a right); (e) discussing with his present employer whether the employer has (and the extent of) any particular right under the terms of the contract of employment in respect of the member concerned; (f) in general discussing with his present employer any question "directly or indirectly involving or affecting" his relationship with that employer or "disputes or differences between them" as to quality of the food supplied, the standard of the cooking, the adequacy of the lodging, bedding or other furnishings supplied by the employer and the suitability of any equipment or tools supplied. (at p51)
It will be appreciated that in the foregoing list of matters which are prohibited the word "employer" must be read as including any master, superintendent, foreman or other person representing the employer. All such discussions with any representative of an actual or potential employer are prohibited except that the member may convince the body before which he may be charged that "unusual circumstances or emergency" within the meaning of r. 12 existed and were such as to amount to "sufficient reason to render necessary a departure from . . . the rules . . . ". Of course the member would have to make an assessment, before deciding whether to take the proposed action, as to whether the facts constituted "an unusual circumstance or emergency" and decide whether to risk proceedings for breach of r. 6. (at p51)
Mr. Twigg in supporting r. 6 relied upon "the history of the trade union legislation" and put the case for the respondent in the following ways: (1)" . . . the rule is not too wide . . . One must consider the history of the trade union legislation and restraint of trade in order to see that a rule of this kind at this time is perfectly permissible." (2)" . . . if we are to have trade unions and have them in the context in which they operate, necessarily it demands some sacrifice of the right of individual members to act privately." (3) ". . . one considers the purpose of an organization of employees to operate under the Conciliation and Arbitration Act, there is no way in which the employees' organization can act properly unless it acts as agent or representative of its members (Dunlop Rubber case)" (1957) 97 CLR 71 . (4)" . . . the Act contemplates what is to be dealth with is an association of employees . . . " . (5) " . . . the objects of the Act . . . are . . such (that) a person dealing in his own interest and not in the interests of the group runs counter to what is contemplated by the objects of the Act." (6) "One must read r. 6 not in isolation but in the context of the rules of which it forms part and of the object of the Act." (7) "Rule 6 is seeking . . . to ensure that it has control over its members so that . . . it can protect its main body of members and protect itself against fines which under (the Trade Practices) Act in some instances are up to $250,000." (at p51)

Mr. Twigg also cited the judgments of Fullagar J. in Williams v. Hursey (1959) 103 CLR, at p 61 and of St. John J. in Clark v. Printing and Kindred Industries Union (1976) 30 FLR 39, at pp 59-64 . In my opinion neither judgment supports the argument for the institute. Particular reliance was placed upon the following passage in the judgment of St. John J. in Clark v. Printing and Kindred Industries Union: "The very nature of a trade union demands some sacrifice of the right of a member to bargain privately whilst he remains a member" (1976) 30 FLR, at p 64 . The context, however, in my opinion makes it clear that the reference by St. John J. to "the right of a member to bargain privately", was referring to the right of a member to agree to work for lower wages (or conditions) and was not referring to the right of a member to bargain with an employer for higher wages (or conditions). In my view this is made clear by the next paragraph of the judgment, which, referring to minimum conditions, contains the following sentence: "The minimum working conditions for members are the proper concern of employee organizations, and rules, directed to achieving those" (i.e. minimum) "conditions, which are according to common law standards in restraint of trade, would not, in many cases, be liable to a declaration of invalidity under s. 140." (at p52)
Mr. Twigg argued that, having regard to "the purpose of an organization of employees" under the Act, "there is no way in which the employees' organization can act properly unless it acts as agent or representative of its members". This statement was used in support of an argument that the organization must be representative not only in making demands for (minimum) wages and conditions but also in respect of any possible over-award payments for individual members. In my view that argument misconceives the nature of the principles enunciated by the High Court in the line of cases which includes the Burwood Cinema case (1925) 35 CLR 528 , the Metal Trades case (1935) 54 CLR 387 and the Dunlop Rubber case (1957) 97 CLR 71 . That line of authority establishes that an organization of employees registered under the Act "is a representative of the class associated together in the organization" and is "standing in the place of the industrial group or class and formulating demands in its interest . . . because it is constituted for the purpose and is recognized as representing the group or class" (Dunlop Rubber case (1957) 97 CLR, at p 85 ). However, in my view such wage demands, formulated by the representative organization, will of their very nature normally be - and in practice almost invariably have been - demands that the employers concerned will pay to the employees the subject of the demand wages not less than the rates of pay demanded. (at p52)
In my view this is so whether or not the demand in question is expressly for "minimum" rates. In other words, the intention of such a demand is that the employer upon whom the demand is made shall pay at least the rates demanded - but is free to pay higher rates if he wishes. Such a demand can be satisfied by the employer granting to the employees either the exact amount of the (minimum) rates of pay demanded or by making a payment higher than the minimum demanded, consisting of those (minimum) rates of pay together with some additional amount. In either event the employer has satisfied the demand. (at p53)
Isaacs J. in Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466 dealth with the legal effect of a federal award fixing the minimum wage and expressly made the point that an employer is free to pay more than either the wage fixed by award or that fixed by contract. He said: "It prescribed, not 'a' minimum wage, but 'the' minimum rates of pay, consisting of a basic wage and certain marginal rates, and provided for their periodical adjustment. If a sum is fixed as 'the' minimum wage, a State Act fixing another sum as compulsorily payable, necessarily fixes that other sum as 'the minimum wage (whether also the maximum or not), because it means that sum at least shall be paid. It is only saying 'the minimum' more verbosely. This fact once grasped and appreciated, the matter is simplified. If an award fixes the obligation of the employer at (say) 5 pounds as 'the minimum wage and a State Act then fixes 'the' minimum wage at another sum, whether 4 pounds or 6 pounds, there is necessarily inconsistency. Apply the question to the ordinary affairs of life. If I contract to buy a horse for 5 pounds, that is the minimum price. I can be compelled to pay that, but not more. It is not the maximum I may give. I can, no doubt, give more if I please" (1926) 37 CLR, at pp 492-493 . (at p53)
The reasons for judgment of the High Court in the Dunlop Rubber case itself, after referring to the "principle first enunciated in the Burwood Cinema case", continued with the following passage: "For the alleged dispute depends essentially on that doctrine. It consists in the failure of the two sides to agree on the rates terms and conditions demanded of or by the secretary of the organization as the authorized officer of its executive committee. The minimum rates and the working conditions the demand for which is thus made by or to him are to apply to the employers who are identified or identifiable and to their employees, that is to say to those who are or become their employees" (1957) 97 CLR, at p 80 . (at p53)
Other cases make it clear that the fixation of a minimum by an award does not have the effect of reducing the more beneficial provisions of a contract to those minimum rates and conditions prescribed by the award. See Kilminster v. Sun Newspapers Ltd. (1931) 46 CLR 284, at p 289 ; Mallinson v. Scottish Australian Investment Co. Ltd. (1920) 38 CLR 66 and the decision of the Privy Council in True v. Amalgamated Collieries of W.A. Ltd. (1939) 62 CLR 451 . A member of an organization of employees remains free as a matter of law to contract for wages above the award wages and conditions obtained by that organization and to enforce any such contract in the courts. (at p53)
The history of the federal arbitration system shows that a wide variety of unions have over the years demanded on behalf of their members minimum rates and minimum conditions of employment. Where those demands have not been granted by the employers the resultant disputes have been settled by awards which have fixed minimum rates and conditions. It was made clear by Higgins J. that the fixation of a minimum did not take away the right of an individual to demand a higher rate. As the respondent has placed reliance upon the history of unions, it is appropriate to look at the historical survey of the Australian arbitration system of Higgins J. in A New Province for Law and Order (1922). Higgins J. repeatedly stressed the right of the individual to negotiate personally for a rate higher than the minimum. A few extracts may suffice. After stating that wages boards in two States had fixed wages and conditions for different classes of builders' labourers which differed significantly in the two States, Higgins J. said, at pp. 33-34: "The Federal Court, when it came to act, prescribed a flat minimum rate for all the labourers, and the employees were satisfied. They knew that a man of exceptional value as a scaffolder or in any other capacity would still be able to demand and obtain a rate higher than the minimum. It is often said that the minimum rate tends to become the maximum, but there has been no proof of such tendency as yet". Higgins J. also referred, at pp. 44-45, to the object of the power under the Act to fix a minimum rate: "It would, of course, be an astounding position if, while the employer remains free to give or to refuse employment at the minimum rate, the employee were bound to take employment at that rate . . . A minimum rate is in effect a restraint upon the employer; a maximum rate would be in effect a restraint upon an employee. The Act gives power to prescribe a minimum rate, and the object of that power would be defeated if a man who thinks that his services are worth more than the minimum rate were not free to hold out for a higher rate". In the same book, Higgins J. expressly referred, at p. 45, to the question of the attitude of unions to members getting rates above the minimum, saying: "The statement has often been made that the minimum rate tends to become the maximum rate. I have not found it so . . . . I have not found unions objecting to members taking extra pay for extra usefulness; . . . but unions object to extra rates for extra servility, for disloyalty to one's comrades". Higgins J. pointed out, at p. 20, that the prescription of a minimum wage had its parallel in legislative prescriptions of minimum conditions on other subjects, saying: "But it is coming to be recognized that what the Court does in fixing a minimum wage is by no means novel in principle. There are many Acts of many legislatures which prescribe minimum conditions on other subjects. For example, Mining Acts often prescribe minimum conditions as to ventilation, timbering, safety appliances, machinery, sanitation. These matters are not left to individual bargaining". The legislative prescription of such minimum conditions is not intended to prevent the mine operator from having ventilation, safety appliances, etc., of a higher standard than the minimum prescribed by law. (at p55)
Similarly, in his judgments as president of the Commonwealth Court of Conciliation and Arbitration. Higgins J. stressed the right of an individual employee to be free to contract for a rate higher than the minimum fixed by the award. Two examples may suffice. In Federated Gas Employees' Industrial Union v. Geelong Gas Co. (1919) 13 CAR 437, at pp 463-464 Higgins J. said: "I take the minimum rate as a rate below which the employer is not permitted to contract with any employee for a given occupation, no matter what the circumstances and no matter what the state of the labour market. The right of free contract is not further restricted; the employee is free to refuse to take the job if it does not suit his health or his taste, and free to contract for a higher rate than the minimum fixed if he should undertake the job; and the corollary ought probably be drawn that neither the Court nor the union should interfere with this area left to freedom of contract." Earlier, in Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association; Ex parte Waterside Workers' Federation of Australia (1915) 9 CAR 293, at p 315 Higgins J. had said: "But on the other hand it is not necessarily an unjust extortion for a man, or for a class of men who make wheat-carrying a speciality, to demand more than the minimum rate for his or their services. It is quite in harmony with the principle of freedom of contract subject to the minimum wage that an employer should seek by extra wages to attract men, who, as he thinks, will give him extra speed and efficiency. The device of the minimum wage will soon prove to be a bane instead of a blessing if the position be perverted as the arguments tend to pervert it. I can only say plainly that there is no breach of the award or impropriety in a man refusing his services in loading wheat unless the employer pay him more than the minimum. It is all a matter for contract." (at p55)
The history of claims for - and the fixation of - minimum rates of pay and minimum conditions of employment in the Commonwealth Court of Conciliation and Arbitration set out in A New Province for Law and Order is confirmed and continued in the Commonwealth Arbitration Reports setting out decisions of the court and its successor the Conciliation and Arbitration Commission. (at p55)
The history in the Commonwealth Arbitration Reports of claims for a minimum has its parallel in the Commonwealth Law Reports of proceedings in the High Court in respect of claims before various federal arbitration tribunals. They contain reports of many cases decided by the High Court in which the report states that the award or dispute related to claims expressly made for minimum rates or minimum conditions. Those claims were by many different unions operating in widely differing industries. (at p56)
The court's duty in considering whether a rule contravenes s. 140 (1) (c) of the Act was stated by Spicer C.J. in Cameron v. Australian Workers' Union (1959) 2 FLR 45, at pp 50-51 : ". . . the court is called upon to have regard to all the circumstances of the case and in the light of the objects of the Act and the purposes of registration of organizations form a judgment as to whether the rule departs from the standard (somewhat vague as it is) which the legislature has prescribed". The task of the court is to have regard to the objects of the Act and to the purposes of the registration of organizations under the Act but it is not necessary for the court to come to the conclusion that the rule under consideration is specifically contrary to one or more of "the objects of the Act" or is contrary to "the purposes of the registration of organizations under the Act" before deciding that the rule contravenes s. 140 (1) (c). As Dunphy and Kerr J.J. said in Cassidy v. Amalgamated Postal Workers' Union of Australia (1967) 11 FLR 124, at pp 126-127 : "It is our opinion that the insertion of the new wording into sub-s. (1) (c)" (i.e. the words "having regard to the objects of this Act and the purposes of the registration of organizations under this Act") "requires the court to keep constantly in the forefront of its mind the objects of the Act and purposes of the registration of organizations under the Act, to have regard to them and then to see whether a challenged rule imposes upon members of the organization conditions, obligations or restrictions which are oppressive, unreasonable or unjust. In other words the duty to protect the members from oppression, unreasonableness, or injustice is still to be a paramount consideration and is not to be abrogated by the court's consideration of the objects of the Act or the purposes of the registration under the Act." (at p56)
Having regard to all of the "chief objects" set out in s. 2 of the Act, in my view none of those objects in any way affirmatively supports or even appears to contemplate the existence of a rule such as r. 6 or a rule having the effects upon the freedom of members of an organization which result from r. 6. Perhaps this is not surprising as the objects are those of an Act which is based upon a constitutional power to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". If the Act did expressly authorize a rule which affected the freedom of members in the way done by r. 6 in this case, it might be difficult to justify the relevant provision of the Act as being within constitutional power. In Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442, at p 448 Knox C.J., referring to the Jumbunna case (1908) 6 CLR 309 , said: ". . . it was decided that the grant of power to register organizations was incidental to the exercise of the power to make laws with respect to conciliation and arbitration . . .". Isaacs J. said:"The creation and equipment of representative organizations both of employers and employees is an incident to the power in s. 51 (xxxv) of the Constitution. They are instruments for the more effective exercise of the power (Jumbunna case). Parliament may adopt them as part of its mechanism. That mechanism can be made and unmade at the will of Parliament. It may be moulded, refashioned, or abolished in any manner indicated" (1925) 36 CLR, at p 453 . (at p57)
As I have already said r. 6 on its face imposes restrictions upon an individual member's freedom in some respects. In my view it does not appear on all the material before the court in these proceedings that such a restriction of freedom is necessary or desirable either by reason of the nature of unionism or the nature of organizations of employees registered under the Act or by reason of particular facts in relation to the institute. Although Mr. McGrane, the federal secretary, gave evidence in the proceedings on other matters there is no evidence or other material before the court in my view showing the necessity or desirability of the restriction upon the freedom of individual members. (at p57)
In my view the matter may be analyzed in the following way: (1) A prime purpose of unionism is to protect its members by gaining fixed minimum rates and conditions of employment for members. (2) Claims on employers by unions are normally - almost invariably - for minimum rates and conditions. I am not aware of any case in which the union demanded that the wages or conditions sought by it should be the maximum as well as the minimum. (3) Rates and conditions fixed by federal awards are normally the minimum rates and conditions which may be granted to the employees affected. (4) Employers are entitled in law to pay wages and grant conditions of employment to their employees in excess of the award rates - which are minimum whether so expressed or not. This may be contrasted with the position during the second world war when an employer who paid and an employee who received wages above the award committed an offence against the National Security (Economic Organization) Regulations made under the defence power. (5) An individual employer is entitled in law to pay to an individual employee a wage higher than the award rate or the contract rate applicable to his employees generally. (6) The existence of an award minimum does not take away the more beneficial provisions of an existing contract - any right in a particular employee in contract law to more than the award remains. (7) An individual employee has the right to seek a higher rate (or better conditions) for himself than the minimum prescribed by statute or award. I am not aware of any provision in contract law or the general law or in any federal or State statute that takes away this right. (8) In 1920 Higgins J. said he had "not found unions objecting to members taking extra pay for extra usefulness". (9) There is no evidence or other material before the court of any change in this attitude of the unions (leaving aside r. 6 itself). (10) There is no evidence or other material before the court to show that either the nature of unionism or the purpose of unionism is such as to justify or require the taking of action by a union to prevent its individual members from seeking wages or conditions of employment for themselves as individuals above the minimum existing for employees of that class generally or to prevent them from discussing with an actual or prospective employer the possibility of being accorded such wages or conditions. (11) The primary purpose of registration under the Act of unions is to facilitate their representing the relevant class of employees in making demands and obtaining, by conciliation or arbitration, an agreement or award as to minimum rates and conditions of employment. (12) Such representation by a registered union is not in any way inconsistent with a member seeking rates of pay and conditions of employment above the minimum obtained by the union as a protection for its members overall. (13) There is no evidence or other material before the court which shows that industrial conditions or other relevant circumstances have changed since Higgins J. said in 1919 that probably "neither the court nor the union should interfere with this area left to freedom of contract". (Geelong Gas Co. case (1919) 13 CAR 437 .) (14) There is no evidence that any other registered organization of employees has a rule in terms similar to r. 6 or that any have a rule requiring their members to leave to the organization "all dealings with an employer other than the acceptance of employment". (15) There is no evidence of any particular circumstances relating to the institute or the industries in which it operates which make it desirable that "all subjects, questions . . . directly or indirectly involving or affecting the relationship between employer and employee . . . shall be dealt with solely by the institute . . .". (at p58)

I shall now set out briefly my conclusions as to the particular arguments advanced on behalf of the institute but without reiterating views already expressed. As the relevant transcript extracts of those arguments have already been set out earlier I shall only identify each argument and then give my reason for rejecting it:

(1) The history of trade union legislation makes r. 6 permissible. (at p59)
In my view the relevant history does no more than give support for a rule which would prohibit a member from working for lower rates than those minimum rates obtained by the union for members generally.

(2) The nature of a trade union necessarily demands some sacrifice of the right of individual members to act privately. (at p59)
I agree that some sacrifice of private rights is necessarily involved, but in my view there is no evidence or other material before the court demonstrating or even suggesting that membership of a trade union requires the sacrifice of the right of an individual member to negotiate for a rate higher than the prescribed minimum.

(3) and (4) The purpose of an organization of employees under the Act shows that it must act as a representative of its members. (at p59)
It will be clear from what I have said earlier that in my view an organization of employees is a representative for the purpose of obtaining minimum rates and conditions and is not a representative of each member for the purpose of negotiating individual over-award rates for individual members in such a way as to prevent those members from negotiating individually as to their own individual over-award rates.

(5) To allow persons to deal in their own interests as distinct from the group's would run counter to the objects of the Act. (at p59)
In my view there is nothing either in the objects of the Act or elsewhere in the Act to support this argument. In any event, Mr. Twigg conceded that "there is nothing in the Act that shuts" out the idea of an individual member seeking payments higher than the minimum prescribed by the award.

(6) Rule 6 must be read in context of the rules and of the objects of the Act. (at p59)
I have considered r. 6 in the context of the rules and of the objects of the Act but in my view neither context supports the respondent's arguments.

(7) Rule 6 is intended to help the institute to protect itself and its members against the deeming provisions of s. 45D (5) of the Trade Practices Act and possible resulting fines. (at p59)
In order to avoid the operation of the deeming provision in s. 45D (5), the institute only has to show that it took all reasonable steps to prevent the participants in the conduct in question from engaging in that conduct. Rule 6, which does not appear on its face to be directed to this particular matter, is not necessary for that purpose. (at p59)
In my opinion r. 6 in prohibiting an individual member from seeking an over-award payment or other benefit for himself as an individual and in prohibiting the various other actions to which I have earlier referred, imposes upon members of the institute restrictions which, having regard to the objects of the Act and to the purposes of the registration of organizations under the Act, are unreasonable. (at p60)

ORDER

Order accordingly.

[1978] FCA 73

11 AUGUST 1978