Wood, William Charles v The Federated Liquor & Allied Industries Employees Union of Australia

[1977] FCA 80

I N TIIE FEDEIWL	COURT	)
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OF AUSTRALIA	1 N.S:I\! NO. 15 O f 1977.
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INDUSTRIAL DIVISION )

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I N THE MATTER O F -	*	1
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THE CONCILIATION AND ARBITRATION ACT 1904’ -

BETWEEN

WILLIAM CHARLES WOOD

Appl icant

‘THE FEDZIW’I’ED LIQUOR A X I ALLIED

INDUSTRIES	ENPLOYEES	UN1017 OF
AIJSTIWLIA

Respondent

REASONS FOR JUDSMEWT

DATE: 7 Novenber, 1977 J.B. SV?EENEY J.

T h i s is an i n q u i r y u n d e r s.165 of the A c t

i n to t h e e l e c t i o n of General S e c r e t a r y of the Fede ra t ed

Liquor and Allied Indus t r ies Employees Union of A u s t r a l i a

( the Unicn) . :,pplication was made for an i n q u i r y aft,er

the completicn of the election and the Registrar there?

upon r e f e r r e d the application t o the Cour t .

The election i n ques t ion was conducted by the

Aus t r a l i an Electoral Officer. n p p l i c a t i o n vas made by

the Union that t h e election be conducted i n accordance

with s.170 of the A c t a n d t h i s was supported by a d e c l a r a t i o n

i n which t h e then a c t i n g G e n e r a l S e c r e t a r y i n d i c a t e d t h e

union ‘S view t h a t t h e e l e c t l o n was required t o be conductcd

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under federal r u l e 11(~) by a secret p o s t a l b a l l o t of the

members of the Union. The Registry however appears to

have taken the view tha t t he e l ec t ion was one t o be con-

ducted a t a federal councll meeting and so,advised the

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Austral lan Electoral off icer .

The question now posed i s whether an i r r egu la r i ty

occurred because the election was conducted among the

members of the federal council only and not by a secret

b a l l o t of the members of the union.

P r io r t o 1975 the federal rules provided as

follows:

1. Rule l l ( g ) provided that the General

Secre ta ry "sha l l be e lec ted by council

i n the manner hereinafter provlded".

2. Rule 11 (h ) then provided a manner of

e lec t ion by the federal councll . It

did this by providlng i n r u l e 11 ( c )

f o r t h e appointment of a returning

- -of f icer and then m r u l e l l ( h ) t h a t a t

a relevant time the re turn ing of f icer

should summon counci l to meet t o elect

the General secretary.

I n October, 1975 the r u l e s were amended. It

is c l ea r from the amendments that they were made having

regard to the changes introduced by A c t No. 138 of 1973

which came i n t o e f f e c t , s o f a r a s is relevant to these

proceedings on 11 Igovember, 1973. That A c t provlded new

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provisions covering elections within organlsations. I n

substance these were t h a t p o s t a l b a l l o t s of members should

be he ld for the e lec t ion of ful l - t ime off lcers with a

qua l i f i ca t ion tha t > where immediately before the r u l e s had

provided a different method of e lec t ion , the organisa t ion

was allowed a period of th ree years to br ing i t s ru les

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into conformity. Other provisions were made a s t o

qua l i f i ca t ions fo r a re turnlng off icer , provis ions for

procedures when nominations were re jec ted and a l imita-

t i o n on the power to dismiss a person e l k t e d t o o f f i c e .

The relevant amendinents made t o the rules were t o add r u l e l l ( c ) a provis ion re la t ing to the re turn ing of f icer

and the r e j ec t ion of nominations, t o add t o r u l e l l ( h )

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a provis ion l imit ing its operat ions to the per iod up t o

1 January, 1977 and by adding t o the r u l e s a new sub-

r u l e l l ( j ) . The new sub-rule provlded that:

“Notwlthstanding any other provisions i n these

rules ...-. e lec t lons sha l l be he ld i n accord-

ance wlth t h l s Rule fo r t he o f f i ces of

General Secrekary and hsslstant General

! Sec re t a ry a t a time and da te to be f lxed by

the Federal Councll between 1st January, 1977

l	and 1st September, 1977 i n accordance with Federal Rule 6(1) and, where appl icable ,
Branch Rule 5 and every s l x yea r s a f t e r t he
holding of such elect ions. ‘I

It seems clear that the intent ion of the

amendments was to provide for the requirements of the

s t a t u t e , t o a p p l y a f t e r 1 January, 1977. The slgnLflcance

of t h i s d a t e is that the period of three years allowed

i n the A c t t o b r lng r u l e s into conformity eqired i n

November, 1976 and it was no doubt desired that e lect lons

where the person elected were t o h o l d o f f i c e a f t e r t h a t

period should be conducted i n accordance with the sectlon.

“WO constructions have been argued before me.

The f i r s t t h a t on the t r u e construction of the

rules, r u l e ll(g)’go f a r a s It deal t with the quest ion of

e lect ion was not intended to have appl icat ion af ter

1 January, 1.977. This it is claimed follows from the

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to Introduce a secret ballot among members. The relevant

portion of rule 11( j) is as follovs:

'(ii)Elections shall be held in accordance with this Rule,

for the officers of General Secretary and Assistant

General Secretary at a tlme and date to be fixed by the	:
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Federal Council between 1st January, 1977 and 1st L

September, 1977 in accordance with Federal Rule 6(i) and i

where applicable, Branch Rule 5 and every six years after,

the holding of such elections. The elections of General

Secretary or Assistant General Secretary may be held at I

separate times or simultaneously as the Federal Council !

may declde . 'I i

Rule 6(i) requires that in any election for i

branch representatives on councll a request shall be made I

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to the Industrial Registrar for the conduct of the

election under s.170 of the Act. The reference to it

I	in the rule quoted ensures that the election of the General Secretary will be similarly conducted. This
is much more appropriate for a ballot of members than
any case of an election among a similar group of council
members. The provision then requires the election to be conducted where practicable in accordance with branch
rule 5. That rule provldcs for a secret postal ballot ..
of members to elect branch officers and committee of
management and looking at these two references it seems to me clear that the intention vas to alter the rules
to conform with the 1973 Act and to provide for a postal
ballot.
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The alternative submission is that rule ll(g)

remaining as it was and providing "the General Secretary

shall be elected by council in the manner hereinafter

provlded for", the new rule 11 ( j ) did no more than provide

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a manner. This view it i s sai .d is no I t c u It down by' t he

introductory words t o 11 ( j ) "Notwithstanding any other

provis ion in these rules" . It is fur ther submit ted that

it is strongly supported by the opening woFds of l l ( j ) ( i l )

"Elect ions shal l be held i n accordance with this R u l e " .

The phrase "thls R u l e " it is subni t ted incorporates the

whole of r u l e 11 including paragraph ( g ) and i n t h i s

connection It was submitted that where a pa r t i cu la r

port ion of a r u l e i s r e f e r r e d t o , it is r e f e r r e d t o as

a s u b r u l e . where t h e whole of a r u l e is r e f e r r e d t o

it is r e f e r r e d t o as a ru l e . An example of t h i s occu r s

i n the f i n a l words of r u l e (h ) .

Ultimately it w a s further submitted that whatever

may have been the in ten t ion of the organisat ion, i f t h a t intentlon had been to Introduce as required by the Act a

! secret pos t a l ba l lo t o f members, it had miscarried.

The point i s a shor t one but not without

d i f f i c u l t y and was persuasively argued by counsel.

On r e f l ec t ion I am of the view t h a t one cannot

say tha t the term "sub-rule" i s used consistently when

p a r t of a ru le only is r e f e r r e d t o and t h a t t h e word

" r u l e " is used when the whole of a ru l e is r e fe r r ed to .

In r u l e ( j ) ( i i ) f o r examgle the words " federa l ru le G ( i ) "

are used when the reference is t o t h a t p o r t i o n of t he

r u l e only and one f inds on perus ing the ru les fur ther

examples of t he same approach, i n for example, the las t

! l i n e of ru l e 14.

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I think the in ' ientmn of the organisail ion was

q u i t e clear. I th ink the use of the terms " ru le" and

"sub-rule" a r e loose and not ent i re ly consis tent and I

do not regard the use of the word " ru l e" in the first

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l i n e of ru le l l ( j ) ( i i ) as compelling m e t o f i n d a s h a s

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been submitted.

If nothing more was achleved than providing €or

t h e same form of e lect ion by the federa l counci l it is

qu i t e c l ea r t ha t t he e f fo r t has misca r r i ed and despite

the a t tempts there has	been	no	br inging of the ru le ln to
conformity with s.133A.

Looking a t t h e p r o v i s i o n i n its context and

aga ins t the background of t h e 1973 A c t I think Rule ll(j)

required the l ec t ion a f t e r t he da t e spec i f l ed t o be by i

b a l l o t of	members.
I am therefore of opmion that an i r regular i ty

has occurred in that the elect ion should have been con-

ducted by secret pos t a l ballot among fnembers and not

among members	of	the federa l counci l .
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That being my f lnding, it is qui te obvious that

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t he e l ec t ion may have been affected by t he i r r egu la r i ty .

I have been asked p r io r t o making other orders

t h a t the parties be glven an opportunity t o consider t h e

pos l t ion and t o speak t o them and t h i s w i l l be done.

I should however express my views a s t o c o s t s .

I n t h i s c a s e I th ink it would not be j u s t f o r e i t h e r the

applicant or the organisat lon to be required to bear

e i t h e r h i s o r i t s own c o s t s br t h e c o s t s of the o ther

party. The organisation took the correct view of the

rule and when making its request under s.170 clearly

contemplated a postal ballot of members. As I have

pointed out however the Registrar took a different view

of the rule and advised the Electoral Officer that an

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election by the federal council should be held. The

irregularity then was not due t.o either the applicant

or the organisation and indeed occurred against their

wishes and despite their request. In those circumstances

I express my vlew that it would not be lust for either

to be requred to bear costs.

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