IN TIE FEDERAL COURT ) ) OF AUSTRALIA ) W.S.% No. 15 of 1977: ) ) INDUSTRIAL DIVISION IN THE MATTER OF - THE CONCILIATION AND ARBITRATION ACT 1904 BETWEEN WILLIAM CHARLES WOOD Applicant "AND THE FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES UNION OF AUSTRALIA Respondent REASOWS FOR JUDGMENT DATE: 7 November, 1977 J.B. SWEENEY J. This is an inquiry under s.165 of the Act into the election of General Secretary of the Federated Liquor and Alliga Industries Employees Union of Australia (the Union). Application was made for an inguiry after the completion of the election and the Registrar there, upon referred the application to the Court. The election in question was conducted by the Australian Electoral Officer. Application was made by the Union that the election be conducted in accordance with s.170 of the Act and this was supported by a declaration in which the then acting General Secretary indicated the Union's view that the election was required to be conducted ie ee ee et RR ee cert ene ct ape a A RY ER RN A A RE ERC te LYE ANE TUE HOH . . under federal rule 11(3) by a secret postal ballot of the members of the Union. The Registry however appears to have taken the view that the election was one to be con- ducted at a federal council meeting and so,advised the Australian Electoral officer. The question now posed is whether an irregularity occurred because the election was conducted among the members of the federal council only and not by a secret ballot of the members of the union. Prior to 1975 the federal rules provided as follows: 1. Rule 1i(g) provided that the General Secretary "shall be elected by council in the manner hereinafter provided". 2. Rule 11(h) then provided a manner of election by the federal council. It aid this by providing in rule 11 (c) for the appointment of a returning - -officer and then in rule 11(h) that at a relevant time the returning officer should summon council to meet to elect the General Secretary. In October, 1975 the rules were amended. It is clear from the amendments that they were made having regard to the changes introduced by Act No. 138 of 1973 which came into effect,so far as is relevant to these proceedings, on 11 November, 1973. That Act provided new provisions covering elections within organisations. In substance these were that postal ballots of members should be held for the election of full-time officers with a qualification that, where immediately before the rules had provided a different method of election, the organisation was allowed a period of three years to bring its rules — nn pr basis etn teeninleeetaietting neh Mnememsdats inten ideeanmmenenneemnee aramtadiemaee mene te —r penemn lem otend mnenemnammem. anette) paecamereemeenuenh caster ema ee EES into conformity. Other provisions were made as to qualifications for a returning officer, provisions for procedures when nominations were rejected and a limita-~ tion on the power to dismiss a person elected to office. The relevant amendments made to the rules were to add rule 1l(c) a provision relating to the returning officer and the rejection of nominations, to add to rule il(h) a provision limiting its operations to the period up to 1 January, 1977 and by adding to the rules a new sub- rule 11(j). The new sub-rule provided that: "Notwithstanding any other provisions in these rules ..... elections shall be held in accord- ance with this Rule for the offices of General Secretary and Assistant Ceneral Secretary at a time and date to be faxed by the Federal Council between Ist January, 1977 and ist September, 1977 in accordance with Federal Rule 6(1) and, where applicable, Branch Rule 5 and every six years after the holding of such elections." It seems clear that the intention of the amendments was to provide for the requirements of the statute, to apply after 1 January, 1977. The sagnificance of this date is that the period of three years allowed in the Act to bring rules into conformity expired in November, 1976 and it was no doubt desired that elections where the person elected were to hold office after that period should be conducted in accordance with the section. Two constructions have been argued before me. The first that on the true construction of the rules, rule 11(g) so far as 1t dealt with the question of election was not intended to have application after 1 January, 1977. This it is claimed follows from the addition of rule 11(4) which it is submitted is intended to introduce a secret ballot among members. The relevant portion of rule 11(4j) is as follows: "(ii)Elections shall be held in accordance with this Rule, for the officers of General Secretary and Assistant General Secretary at a time and date to be fixed by the Federal Council between ist January, 1977 and lst September, 1977 in accordance with Federal Rule 6(i) and 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 separate times or simultaneously as the Federal Council may decide." Rule 6(i) requires that in any election for branch representatives on council a request shall be made to the Industrial Registrar for the conduct of the election under s.170 of the Act. The reference to it 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 provides 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 was to alter the rules to conform with the 1973 Act and to provide for a postal ballot. The alternative submission is that rule 11(g) remaining as it was and providing "the General Secretary shall be elected by council in the manner hereinafter provided for", the new rule 11(j) did no more than provide sense meeenye | | | — a manner. This view it is said is not cut down by' the introductory words to 11(j) "Notwithstanding any other provision in these rules". It is further submitted that it is strongly supported by the opening werds of 11(3)(i1) "Elections shall be held in accordance with this Rule". The phrase "this Rule" it is submitted incorporates the whole of rule 11 including paragraph (g) and in this connection 1t was submitted that where a particular portion of a rule is referred to, it is referred to as a sub-rule. Where the whole of a rule is referred to it is referred to as a rule. An example of this occurs in the final words of rule (h). Ultimately it was further submitted that whatever may have been the intention of the organisation, if that intention had been to introduce as required by the Act a secret postal ballot of members, it had miscarried. The point is a short one but not without difficulty and was persuasively argued by counsel. on reflection I am of the view that one cannot say that the term "sub-rule" is used consistently when part of a rule only is referred to and that the word "rule" is used when the whole of a rule is referred to, In rule (j)(ii) for example the words "federal rule 6(i)" are used when the reference is to that portion of the rule only and one finds on perusing the rules further examples of the same approach, in for example,the last line of rule 14. ee i ee ' I think the intentzron of the organisation was quite clear. I think the use of the terms "rule" and "sub-rule" are loose and not entirely consistent and I do not regard the use of the word "rule" in the first e line of rule 11(j)(i1) as compelling me to find as has been submitted. If nothing more was achieved than provading for ' the same form of election by the federal council it is quite clear that the effort has miscarried and despite the attempts there has been no bringing of the rule into : conformity with s.133A. Looking at the provision in its context and against the background of the 1973 act I think Rule 11(}) required the election after the date specified to be by r ballot of members. I am therefore of opinion that an irregularity has occurred in that the election should have been con- Gucted by secret postal ballot among members and not among members of the federal council. That being my finding, it is quite obvious that the election may have been affected by the irregularity. I have been asked prior to making other orders that the parties be given an opportunity to consider the position and to speak to them and this will be done. I should however express my views as to costs. In this case I think it would not be just for either the applicant or the organisation to be required to bear either his or its own costs or the costs of the other party. The organisation took the correct view of the A ren ee ene are —_— 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 @ifferent view of the rule and advised the Electoral officer that an election by the federal council should be held, The irregularity then was not due to either the applicant or the organisation and indeed occurred against their wishes and despite their request. In those circumstances I express my view that it would not be just for either to be required to bear costs.