o. COMMONWEALTH OF AUSTRALIA IN THE FEDERAL COURT V No. 19 of 1977 OF AUSTRALIA INDUSTRIAL DIVISION In the matter of - AUSTRALIAN POSTAL AND TELECOMMUMNICATIONS UNION re QUESTION OF LAW MEMBERS OF Bowen, C.d. THE BENCH: Smithers, J. Keely, J. DATE: 4st July 1977 JUDGMENT This is a reference by the Industrial Registrar of the following question of law pursuant to Section 112 of the Conciliation and Arbitration Act 1904. "Was a person who had been elected to a full time office of Assistant Secretary of a Branch and who occupied that office until the 1975 Branch bi-ennial election, and who was re-elected by and from a group to a full time office of Assistant Secretary of that Branch at the 1975 bi-ennial election, entitled to a two or four year term of office commencing in 1975?". The Registrar has received requests from the South Australian, Victorian, Western Australian and New South Wales Branches of the Australian Postal and Telecommunications Union that an election for offices, including the office of Assistant Secretary (one position) in each Branch be conducted under s. 170 of the Act. He has not yet decided whether or not the requests have been duly made. vere Prior to 12th June 1975, the relevant rules of the organisation relating to the office of Assistant Secretary in Branches were those set out below - "31(d) (c) 4 (m) Each Branch shall have for its management a State Executive consisting of a President, two (2) Vice Presidents, Secretary-Treasurer, Assistant Secretary, Organiser (where declared a full time positions. and twelve (12) or nine (9) Group Representatives, as provided for in Rule 32, who shall be elected for a period of two ( 2) years. Provided that any person elected to an office which has been decisred a full time office (other than the Secretary-Treasurer, who shall be elected for a period of two (2) years when elected on the first occasion, and for a period of six (6) years on re-election), or which has been declared a full time position of Organiser shall be elected for a term of office of two (2) years and for a term of office of four (4) years on re-election. Provided further that any person elected by Branch Ballot of the membership 1n 1972 to an office in the Queensland Branch shall be elected for a period of 3 years and on re-election shall be elected for a period of 4 years in the case of an office which has been declared a full-time office or which has been declared a full~time position of Organiser or for a period of 6 years in the case of the office of Secretary-Treasurer. The President, Secretary-Treasurer, Vice-Presidents, Assistant Secretary and Organiser (where declared a full time position) shall be elected by ballot of the whole of the financial members of the Branch. Re—election means the election to an office or position of a person who, at the time of nominations for the election, was the holder of that office or position." It will be seen that according to these rulcs the situation was that prior to the 1975 election only one full-time office of Assistant Secretary existed in each Branch. te That office in the South Australian, Victorian, Western Australian and New South Wales Branches was occupied by Messrs. F.R. Walsh, D.R. Bowler, J. Hughes and P.J. Evans respectively; each of them having been elected to that office. On 12th June 1975 an alteration to the rules was certified by the Registrar under s. 139 (4) of the Act. The relevant rules as altered and certified were as follows ~ "31 (bd) Each Branch shall have for its management a State Executive consisting of a President, two (2) Vice President, Secretary-Treasurer, two (2) Assistant Secretaries (four (4) Assistant Secretaries in the New South Wales Branch) and not fewer than eight (8) nor more than eighteen (18) Grouo Representatives and who shall be elected for a period of two (2) years. Provided that any person elected to an office which has been declared a full time office (other than the Secretary-Treasurer, who shall be elected for a period of two (2) years when elected on the first occasion, and for a period of six (6) years on re-election) shall be elected for a term of office of two (2) years and for a term of office of four (4) years on re-election. For the purposes of Branch administration, the following Branch Offices shall be declared full time positions - New South Wales - President, two (2) Vice President, Secretary-Treasurer, four (4) Assistant Secretaries. Victoria - President, two (2) Vice President, Secretary-Treasurer, two (2) Assistant Secretaries. Queensland —- President, Secretary-Treasurer, two (2) Assistant Secretaries. 1 South Australia and Western Australia — Secretary-Treasurer, two (2) Assistant Secretaries. 2b. Tasmania — . Secretary-—Treasurer. (c) The manner of election shall be as follows: President - The President shall be elected by ballot of the financial members of the Branch. Secretary-Treasurer - The Secretary-Treasurer shall be elected by ballot of the financial members of the Branch. Vice Presidents two (2) - One Vice President shall be a member of the Telecommunications Group and shall be elected by baliot of financial mewbers of the Telecommuniceations Group, and One Vice President shall be a member of the Postal Group and shall be elected by ballot of financial members of the Postal Group. Assistant Secretaries ~ In New South Wales - Assistant Secretaries, four (4) - two (2) Assistant Secretaries shall be members of the Telecommunications Group and shall be elected by ballot of financial members of the Telecommunications Group, and two (2) Assistant Secretarics shall be members of the Postal Group and shall be elected by ballot of financial members.of the Postal Group. In other States - Assistant Secretaries, two (2) - one Assistant Secretary shall be a member of the Telecommunications Group and shal] be elected by ballict of financial members of the Teleconmunications Groun, and one Assistant Secretary shali be a member of the Postal Group and shall be elected by baliot of financial members of the Postal Group." Se res , a 3. It will be seen that by virtue of this alteration of the rules - (a) the number of full time Assistant Secretaries was increased to two in the South Australian, Victorian and Western Australia Branches and to four in the New South Wales Branch; (b) that in the South Australian, Victorian and Western Australia Branches one, and in the New South Wales Branch two of the Assistant Secretaries to be elected were to be members of the Telecommunications Group and the other Assistant Secretary or Secretarles to be elected in the Branches were to be members of the Postal Group; (c) that the electorate in each Branch by which the Assistant Secretary or Assistant Secretaries, as the case might be, who were members of the Telecommunications Group should be these branch membcrs only who belonged to the Telecommunications Group, and the electorate in each Branch by which the other Assistant Secretary or Secretaries, as the case might be, should be those branch members only who were members of the Postal Group. It is to be noted also that although the introducticn of multiple Assistant Secretaries in each Branch would mean that the duties formerly performed by a single Assistant Secretary were to be performed by more than one Assistant Secretary, Rule 61 defining the duties of "The Branch Assistant Secretary" was not amended. It cuntinued to say, simply - "DUTIES OF BRANCH ASSISTANT SECRETARY The duties of the Branch Assistant Secretary shall be to attend all meetings of the Branch and to take the rough minutes of the proceedings, excepc where otherwise directed by the Branch Secretary. At all other tives he shall render such assistence to the Secretary es may be required of him." At the 1975 elections for Branch Officers, which were conducted subsequent to the 12th June, Messrs. F.R. Walsh, D.R. Bowler and J. Hughes were each elected as full-time Assistant Secretaries in their respective Branches by members of the Postal Group. Each was at that time himself a member of that group. Mr. P.J. Evans was elected as ean Assistant Secretary of his Branch by members of the Telecommunications Group. He was at that time a member of that group. The question is whether by reason of the ekction of these persons as Assistant Secretaries at the 1975 elections those persons were, within the meaning cf the Rule 31 (b), "re-elected" to the offices or positions which they acquired in those elections. If they were then the term for which each of then was elected was four years. The term "re-election" is defined 1% Rule 4 (m) to mean the election to an office or position of a person who at the time of nominations for the election was the holder of that office or position. Accordingly the critical enquiry is whether, for the purposes of the rules, the office of an Assistant Secretary under the 1975 rules was "that office" of Assistant Secretary which the persons in question had held at the time of nomination for the 1975 election. Both offices have the same name and the speciried duties are nominally the same. But from the point of view of substance the introduction into each Branch of multiple Assistant Secretaries, one half of whom are members of the Postal Group and elected by the members of that group and the other half of whom are members of the Telecommunications Group and elected by the members of that Group has created a situation as a result of which the duties performed by one of the multiple Assistant Secretaries are seen to differ from those of a single Assistant Secretary under the pre-1975 rules. The single Assistent Secretary was required to perform all the Assistant Secretary's duties specified by the rules in relation to all the Branch members irrespective of group. The inevitable result of multiple Assistant Secretaries is that those duties are to be divided or shared. Such division or sharing is the ostensible object of the re-organisation effected by the new rule. No doubt it was considered that it would contribute to efficiency in administration and the servicing of members in the different groups. No doubt in practice the division of functions would reflect the group membershiv of each particular Assistant Secretary and the requirements of their respective electorates. It would inevitably follow from the re-organisation that the Assistant Secretary elected by the Postal Group,while having an overall duty to attend to the affairs of the Branch and its members generally, would give special attention to the affairs of members of his group. It is to be inferred that this was the intention of the re-organisation effected by the new rule. It is a consequence that the range of activity and the significance to individual members of the office of what may be called a (Group) Assistant Secretary differ materially from those of a single Branch Assistmt Secretary. Accordingly, there are considerations of substance by reason of which the office of what we have called Branch (Group) Assistant Secretary may be regarded as an office different from that of Branch Assistmt Secretary. That it should be so regarded,for the purposes of the Branch rule in question, is supported by other considerations arising from the nature of the re-organisation effected by the rule alteration of 12th June 1975. It is manifest that the rule as altered in June 1975 provided that at the next elections to be held in, say, the Victorian Branch, there would be an election for two (Group) Assistant Secretarics and that as a result of that election the Branch would thenceforth have two, and only two, Assistant Secretaries. But according to the terms of Rule 31 as it existed prior to the 1975 alteration and as far back as 1973. a situation existed at the time of the 1975 elections that an Assistant Secretary "re-elected" in 1973 would have a four year term as Branch Assistant Secretary. Tf the office of (Group) Assistant Secretary provided for in the rules as altered in 1975 was the same office as Branch Assistant Secretary previously existing then the scheme envisaved in the 1975 alteration could not be implemented. Either the Assistant Secretary having the four year term would continue in office and only one (Group) Assistant Secretary would be elected, or the two (Group) Assistant Secretaries contemplated in-the rules would be elected and the Assistant Secretary having the four year term would continue in office. In the first case, contrary to the clear intention of the rule, only one of the Groups would have an Assistant Secretary elected exclusively by it. In the second, also contrary to the clear intention of the rule, the Branch would have three Assistant Secretaries. Both alternatives being incompatible with the clear intention of the rule as altered in 1975 each must be rejected. To achieve this the altered rule must be interpreicd as expressing the intention that an acquired right to a four dd -~ a B year term created in 1973 was extinguished. This would follow if the new rule is interpreted either as extinguishing the office of Branch Assistant Secretary as previously existing or bringing to an end the occupancy of that office by the person then holding it. In our view the new rule ought to be interpreted as extinguishing the office of Branch Assistant Secretary theretofore existing as from the completion of the 1975 elections The rule as amended in 1975 specifies in positive terms the officers that "each Branch shall have for its Management". Those specified include multiple Assistant Secretaries to be elected on a Group basis but do not include an Assistant Secretary elected on a Branch membership basis. Clearly the intention of the rule is that as from the 1975 elections,the Branch would not have "for its Management" an Assistant Secretary elected by the whole of the Branch membership and that that office would cease to exist. It is clear from the terms of the final paragraph of Rule 31 as altered in 1975 that it was a consequence of the omissicn, pursuant to such alteration, of the officer designated as "Organiser (where deciared a full time position)" from the officers specified in Rule 31 as the officers whom the Branch "shall have for its management", that the term of office of the Organiser would come to an end as from the completion of the elections in 1975 notwithstanding that pursuant to the rule as it stood before the 1975 alteration he had been "re-elected" and was entitled to hold office until 1977. The office of full-time Organiser was one of the specified offices in the rule as it stood before alteration in 1975. It was omitted from the specified offices by the 1975 alteration. The final paragraph of Rule 31 as so altered recognises that 1n the absence of speciai action by the Branch the Organiser was by reason of the alteration of Rule 31 (b) no longer the occupant of the position of Organiser. The final paragraph is in the following terms - "Present occupants of the office of Organiser whose terms of office expire in 1977 shall continue, if the State Branch concerned so decides, to hold office unt11 the declaration of the poll in the Branch elections to be held in 1977, unless prior to that time the present occupant resigns, retires, dies, or is elected to another full-time office in the union, or otherwise becomes ineligible to hoid office." In the light of the foregoing observations we are satisfied that the office of Branch Assistant Secretary existing under the rules as they stood prior to 12th June 1975 ceased to exist as from the election of 1975. It may also be observed that a similar conclusion would be reached if the effect of the amendment of the rule certified on 30th May 1977 were in question. The answer to the question referred to the Court by the Industrial Registrar is that each person referred to 10. in the question was entitled only to a two year term of office commencing in 1975.