a » IN THE FEDERAL COURT OF AUSTRALIA ) ) INDUSTRIAL DIVISION ) No. 30 of 1978 ) ) NEW SOUTH WALES DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application pursuant to Section 141 of the said Act BETWEEN ROBERT GRANT SPANSWICK Claimant AND MICHAEL JOSEPH GORMAN, HAROLD TAYLOR, CECIL CLARKE, BARRY BECKERLEY, PETER PHILLIP BENNETT ALBERT NIHOT, GERALD WEIGHT, ROBERT MOORE and D. KENNEDY Respondents ORDER JUDGE MAKING ORDER: J.B. SWEENEY J. DATE OF ORDER: 11 July, 1979 WHERE MADE: Sydney THE COURT ORDERS THAT: The matter be adjourned to a date to be fixed. IN THE FEDERAL COURT OF AUSTRALIA ) ) INDUSTRIAL DIVISION ) No. 31 of 1978 ) ) NEW SOUTH WALES DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application pursuant to Section 140 of the said Act BETWEEN ROBERT GRANT SPANSWICK Claimant AND THE CUSTOMS OFFICERS' ASSOCIATION OF AUSTRALIA (FOURTH DIVISION) Respondent ORDER JUDGE MAKING ORDER: J.B. SWEENEY J. DATE OF ORDER: 11 July, 1979 WHERE MADE: sydney THE COURT ORDERS THAT: The matter be adjourned to a date to be fixed. IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION ) No. 7 of 1979 ) ) NEW SOUTH WALES DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application by THE CUSTOMS OFFICERS ASSOCIATION OF AUSTRALIA (FOURTH DIVISION) pursuant to Section 171c of the said Act ORDER JUDGE MAKING ORDER: J.B. SWEENEY J. DATE OF ORDER: 11 July, 1979 WHERE MADE: sydney THE COURT ORDERS THAT: The matter be adjourned to a date to be fixed IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION NEW SOUTH WALES DISTRICT REGISTRY J.B. SWEENEY J. IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application pursuant to Section 141 of the said Act BETWEEN ROBERT GRANT SPANSWICK Claimant AND MICHAEL JOSEPH GORMAN, HAROLD TAYLOR, CECIL CLARKE, BARRY BECKERLEY, PETER PHILLIP BENNETT, ALBERT NIHOT, GERALD WEIGHT, ROBERT MOORE and MR. D. KENNEDY Respondents (No. 30 of 1978) AND IN THE MATTER of an application pursuant to Section 140 of the said Act BETWEEN ROBERT GRANT SPANSWICK Claimant AND THE CUSTOMS OFFICERS' ASSOCIATION OF AUSTRALIA (FOURTH DIVISION) Respondent (No. 31 of 1978) AND IN THE MATTER of an application by THE CUSTOMS OFFICERS ASSOCIATION OF AUSTRALIA (FOURTH DIVISION) pursuant to Section 171c of the said Act (No. 7 of 1979) 11 guly, 1979 REASONS FOR JUDGMENT These matters commenced with applications by Mr. Robert Spanswick (the Claimant) who 1s a member of the Customs Officers Association of Australia (Fourth Division) (the organization) and Secretary of the New South Wales Branch of the organization. In these applications, No. 30 of 1978 sought orders under s.141 of the Conciliation and Arbitration Act, 1904 (the Act), while in the second, No. 31 of 1978, the Claimant sought orders under s.140 of the Act. The first application related to the validity of certain meetings of bodies within the organization, while the second sought declarations that rules of the organization were in contravention of s.140(1) of the Act. When the matters came on for hearing there had been filed an application by the organization pursuant to s.171c of the Act. They were all listed for hearing on 11 May, 1979. It was then common ground that many of the rules of the organization contravened the Act and it appears that no real attempt had been made in the past to amend the rules to comply with various and changing requirements of the Act and regulations. When the s.171c application came before the Court an order was made that the application and supporting documents be served on each person holding or purporting to hold office as branch secretary with a request that such person take steps to bring the application to the notice of members. In addition an order was made for advertisement of the fact of the application in The Australian newspaper on Saturday, 31 March, 1979 and Saturday, 7 April, 1979. At the same time it was agreed between the parties that the Respondents should circulate to each member or purported member of the federal executive and to each branch secretary a draft revision of the rules of the association which had been made by the association's legal advisers and that he should thereafter convene a meeting of such members to consider among other things the draft alterations of the rules of the association. This meeting was held and there emerged from it a draft set of rules and in substance the Court was then asked in the s.171c application to validate the making of such rules and to stand over the other two applications. Prior to the meeting referred to, the New South Wales branch of the organization had itself prepared a draft set of rules and these differed somewhat from the draft adopted by the meeting of the purported members of the federal executive. When the matter came back for hearing, Mr. Macken appeared for the organization and all the Respondents with the exception of Mr. Bennett, a member of the New South Wales branch. Mr. Kenzie appeared for the Claimant Spanswick and Mr. Bennett sought and was granted leave to intervene. It was agreed that the s.171C application should be dealt with first and the other two matters adjourned. By this time the parties had further considered the two draft sets of rules and had reached agreement on a number of points. It was not disputed that there had been an irregularity in the management of the affairs of the organization. The evidence showed that during 1978 the Industrial Registrar had drawn the attention of the organization and Mr. Gorman to the condition of its rules, many of which clearly contra- vened s.140. The organization or some of its officers had then sought legal assistance and retained Mr. Gaynor of Renwick and Gaynor to draft a new set of rules. This was interrupted by Mr. Gaynor's unfortunate death and the task was subsequently continued and completed by Mr. Macken. It was beyond doubt that irregularities had occurred in that a number of the rules were invalid and that invalidities had occurred by reason of elections being held and activities undertaken under invalid rules. Neither the Claimant nor the Respondents nor Mr. Bennett disputed that irregularities had occurred. Although steps had been taken in accordance with directions to ensure wide publicity to the application under s.171c there were no appearances other than those I have indicated. The organization sought orders in substance validating the set of rules which had been adopted by the purported meeting of the federal executive and subsequently amended in discus- sions with the Claimant and Mr. Bennett. The Claimant and Mr. Bennett while agreeing that orders should be made under 3.171Cc, opposed the validation of the whole of those rules but were agreeable to an order which validated them with the exception of certain rules which they claim could cause substantial injustice to members of the New South Wales branch. Ultimately the following exchange appeared: "Mr. Macken: ... but I think the substance of both sides, and I think I may presume to speak for my learned friend on this, is that we believe that the matter should stand or fall according to the rule matter, on the question of the rules themselves. Mr. Kenzie: Yes, I agree with that your Honour ... His Honour: That would mean I would be asked to deal with 171 basing my decision on my view as to the propriety of the rule. Mr. Kenzie: On my understanding, your Honour, that is so. His Honour: Is that your view? Mr. Macken: JI accept that position your Honour, yes. His Honour: It is not a course I like very much. I have not given it enough thought. I am not very happy with the thought of the court virtually making rules. Mr. Macken: Perhaps in agreeing to what my learned friend said then I was understanding him in a sense differently to what he intended, but as I understand it the position is that the body itself had validly or invalidly adopted a set of rules, and the substantive objection to that 1s that they should not be validated by your Honour, in part at least, because in part at least, to do so would bring into being rules which could cause substantial injustice to the organization or any party. We say that the rules, if validated, would not have that effect, and what I thought I was agreeing to was that I would be perfectly happy to have that issue decided by comparing the rules as adopted with the rules as proffered by those who make that objection by way of ease in demonstrating that the rules would not have the effect that my learned friend's clients fear." It seems clear to me from a perusal of the present registered rules of the organization and from what has been said that irregularities have occurred and I think they are incurable except by an order under s.171c or like sections, and while I repeat the reluctance of the Court to undertake the task of deciding precisely what the rules should be and continue to regard that as primarily a task for an organization, I think in this case I should adopt the course proposed. The hearing then continued and the two sets of rules were placed before me. I have considered both the submissions by Mr. Macken and those by Mr. Kenzie and Mr. Bennett as to the particular rules to which objection is taken. The first rule in question is r.21(c) which gives the federal conference power to "delegate to the federal executive such of its powers as it may from time to time think fit except the power to amend or rescind rules". Exception is taken to this power to delegate by the New South Wales branch. I think in all the circumstances that the federal conference should have power to ensure that some of its functions may be exercised by the federal executive but it may well be that at this stage of the rehabilitation of the organization this should be limited and it would I think be appropriate at this stage for the provision in the proposed New South Wales branch rules to be adopted. This gives power to the federal conference to allocate such specific duties to the federal executive as "it may from time to time think fit". This New South Wales provision has been taken from r.38(a) of the New South Wales proposal. r.28(c) and (d) These rules provide for proxy delegates to the federal conference. Under r.26 a delegate may be given directions by the branch council. The real objection taken to the rule is that there is no obligation on the proxy to act in accordance with directions given him. I think there should be added to r.28(c) the following: "but in exercising a vote he shall act in accordance with any direction given him by the person he repre- sents or given to such person or to him by the branch council pursuant to r.26." r.29 The substantial question raised here is whether officers of the organization should be entitled to vote at the federal conference. The federal conference consists of ten delegates appointed by branches and the four officers. The branch delegates vary in approximate relationship to their member- ship but no objection 1s taken to the numbers of delegates. The four national officers are elected by the whole member- ship of the organization and the principal objection made appears to be that the interests of the smaller branches are likely to be prejudiced by virtue of the fact that the federal officers are more likely to come from the larger branches. This no doubt is true but no smaller branch appeared to make the objection. I think there are distinct advantages in the national officers playing an active role in the conference and do not think that the provision for them to have a vote at the conference would work any injustice to members of the New South Wales branch. r.35(a) and (c) This rule provides for the taking of a postal ballot of federal conference and federal executive when so determined in the manner prescribed in r.35(a). The postal ballot is to be by letter or telegram sent on not less than seven days notice to each person entitled to participate. The objec- tion taken by the Claimant is that the method provided does not allow for an exchange of views between the delegates and the Claimant has submitted, as approved by the New South Wales branch, a very detailed mode of taking such a ballot. It seems to me that there will necessarily arise questions on which a decision of either the executive or conference may be required and that to hold a meeting in such circum- stances might well impose an undue financial burden on the organization. A further suggestion was made by Mr. Bennett that if it were necessary to take such a decision of the federal executive it should be done by telephone hookup. The cost of this would be considerable but it would be a method by which views could be exchanged. In my view the solution lies in a combination of the methods. If the matter to be dealt with was one which required a decision within ten days of the matter coming to the federal office then in my opinion a telephone hookup should be arranged by the General Secretary and after discussion votes recorded. Tf however it was a matter which did not require an answer within that period then r.35(c) should provide for a notice of the taking of the ballot and the question to be submitted to be given ten days prior to the closing of the ballot and provision should be made for any person entitled to vote in the ballot to forward to the General Secretary any material relevant to that question together with sufficient copies for distribution to the other persons entitled to vote. It should then be the duty of the General Secretary to distribute that material to all persons entitled to vote. After the expiry of ten days from the notice of the taking of the ballot the ballot should be taken by telegram. If a rule in such form is submitted to me I will regard it as a rule proper to be validated in these circumstances. rr.38(a) and 39 These rules deal with the powers and composition of the federal executive. The rules as submitted by the organization provide for a federal executive consisting of the four officers and one representative of each branch while the other set of rules seeks a federal executive consisting only of the four officers. The first set of rules provides for duties of the federal executive which are the types of duties normally found in union rules. Under the Act and regulations it is necessary that there should be a committee of management. It has been described as the organ of the organization whose functions are characteristically those of management, that is to say, of carrying on the affairs and business of the association. It 10. acts on behalf of the association in matters pertaining to the administration, negotiation and transaction of its day to day business. I think the federal executive should properly consist of the officers and one delegate from each branch and with one exception I think the powers given to it in the rules of the organization are appropriate. However in view of the allegations and counter~allegations made but without in any way expressing a view as to their accuracy, I think it would be preferable if the federal conference did not have power to delegate generally to the federal executive and in lieu of r.38(5) there should in my view appear the following: "carry out any specific duty allocated to it by federal conference" I have had regard to r.38A(3) of the draft submitted by the Claimant in so holding. r.44 For the reasons indicated in dealing with r.28(c) and (d) I think provision should be made here in similar terms to those made in r.28. r.22(e) The complaint by the New South Wales branch 1s that the rule does not with sufficient precision impose a duty to report to the branches on the activities of the federal executive and federal conference and federal officers. I think in all the circumstances it is desirable that such a duty should exist and it should be imposed upon the General Secretary. 11. I therefore think that r.59(q) should be re-numbered 59(r) and that 59(q) should read: "within six weeks after any meeting of the federal executive or federal conference forward minutes of such meetings to each branch and to each member of the executive or conference as the case may be. Within one week after the taking of a postal or telephone ballot of the federal conference or federal executive he shall advise the branches of such ballot and of the result thereof. Each three months he shall forward to each branch a report of his activities and any other activities of the officers." r.33 During the hearing there was discussion on this rule and it was agreed that it should not be validated in this form. A rule in or to the following effect should be adopted: "Rach officer and delegate to the federal conference or federal executive shall upon his election advise the General Secretary of his address and thereafter shall advise him of any change in address. The posting of or service of any notice at such address shall be deemed sufficient notice or service." It will be noted that in some cases I have left the organiza- tion to draft the appropriate rule, indicating what I think it should contain. I want to emphasise once again that in my view it is not desirable for the Court to draft rules for an organization. This is peculiarly the task of the organiza- tion itself. Where I have departed from this it is because the course has been agreed to. 12. Tf rules in the form I have indicated are submitted to me I will make an order as asked validating the making of them and the other rules in Exhibit B annexed to Mr. affidavit sworn on 28 March, 1979. t I ee:tity that Lacs and the eleven 1 Dresses p 'sc ale a usene conv cf the Boe om Fe Pa tend Hewett oF hi6 Heri Gorman's