CATCHWORDS Rule amendment disqualifying officer of registered organization from seeking re-election by membership qualification period - _ oppressive - declared void pursuant to Section 140 Conciliation and Arbitration Act - order to observe rules pursuant to Section 141 of that Act. N.S.W. No.41 of 1979 - FREDERICK JAMES HAGGER v. OPERATIVE PLASTERERS' AND PIASTER WORKERS' FEDERATION OF AUSTRALIA, DAVID CBRARLES PARKER Coram: St.John J. Sydney 30 October, 1979 B ae Or SOTO EL Te TeESTE nT LYS TOME iY BENT OR Santas NEY? NOWTCE YW WENT STONY WintannPet vy Gnet TUN Tur nnnt TT et fra Dono SONU Ten eto So Ss tt oe eee eat IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION No. 41 of 1979 IN THE MATTER OF The Conciliation and Arbitration Act 1904 as amended AND IN THE MATTER OF an Application under Sections 140 and 141 of the said Act BETWEEN Frederick James Hagger Applicant AND Operative Plasterers' and Plaster Workers' Federation . of Australia, David Charles Parker Respondents ORDER JUDGE MAKING ORDER : St.John J. DATE OF ORDER : 30 October 1979 WHERE MADE : Sydney THE COURT ORDERS THAT : i. Rule 18A of the Operative Plasterers' and Plaster Workers' Federation of Australia (W.A. Branch) be declared void in so far as that rule prescribes a qualification of three years financial membership before nomination to the office of Secretary/Treasurer by a person who has acted in that office. - David Charles Parker recognize the nomination of Frederick James Hagger as a valid nomination for the office of Secretary/Treasurer in the elections currently being held. ~ + eee lk et eee re tole ered eet men Mental nA AS et etn Se ot ee -~ IN THE FEDERAL COURT CF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No.4] of 1979 ) ) INDUSTRIAL DIVISION IN THE MATTER OF The Conciliation and Arbitration Act 1904 as amended AND IN THE MATTER OF an application under Sections 140 and 141 of the - said Act i BETWEEN i Frederick James Hagger Applicant i AND ! Operative Plasterers' and Plaster Workers' Federation of Australia, David Charles Parker Respondents 30 October, 1979 ST.JOHN J Application is made pursuant to Section 140 of the Conciliation and Arbitration Act 1904 (The Act) for an order declaring void Rule 18A (2) of the rules of the Operative Plasterers' and Plaster Workers' Federation of Australia (Tne Plasterers' Union) in so far as it prescribed a qualification of three years { tel eran ere - financial membership before nomination to the office of Secretary/Treasurer of a branch of that organization. A further order directing David Charles Parker to perform and observe the rules of that Organization by recognizing the nomination of Frederick James Hagger as a valid nomination for the office of Branch Secretary/Treasurer of that organization is also sought. No attack is mounted against Rule 18A on the grounds that it is ex facie oppressive, unreasonable or unjust within the meaning of Section 140. It is attacked on its operation in so far as it excludes as candidates persons who have ' previously held or acted in the office for which nominations are called. i ; . The relevant circumstances of the West Australian Branch of the Plasterers' Union are that it is and has been a numerically small union with presently approximately 600 members and for an election now current, 132 of whom qualified as financial electors. The Plasterers' Union has for many years operated in tandem with the Building Workers' Industrial Union of Australia (The B.W.I.U.) to the extent that the office of Secretary/Treasurer has been common to both on many occasions over many years. That, in fact, is the present situation. Mr Frederick James Hagger is both the Secretary/Treasurer of the Plasterers' Union (W.A. Branch) and of the B.W.1I.U. (W.A. Branch). During 1978 major amendments of the branch rules of the Plasterers' Union and the B.W.I.U. branch rules were undertaken with the object of syrrhronizing elections for officers of all branches throughout Australia. It is apparent - . -/3 ae ~ . ao te besatete shade sate earn tnt sl i hale ahh Map label teats ay bt that the motive behind this was to produce a Federal Council with stable membership between branch elections. The amendments, which included Rule 18A, were certified by the Industrial Registrar on 10 August, 1979, except for certain provisions in relation to proxy voting which are not of concern here. At the meeting of the Federal Council concerning the proposed Rule amendments, the following resolution was unanimously carried in November, 1978:- "Alteration to rules shall ensure uniformity but nothing in the rules shall prejudice the rights of existing officers to continue to hold office until the .1979 election and entitle them to renominate for the positions they hold." I have been urged to take this resolution into account in deciding whether or not the particular rule should be declared void but it seems to me that from the point of view of looking at the operation of the relevant rule, so to do would be akin to looking at Hansard for statutory interpretation or looking at the negotiations leading up to a written contract in aid of its construction. I do not feel that I can have regard to what was obviously the intention of the Council in formulating the rules. Frederick James Hagger became the Acting Secretary/Treasuiler of the Plasterers' Union (W.A. Branch) on 15 March, 1977 ae CS RLCe Cee are =) eaeen Cee Fre tater) we ea laa anal St' on the retirement of the previous incumbent. Because of the impending rule change, at an Annual General Meeting of the Plasterers' Union (W.A. Branch) held on 14 June, 1978, it was resolved "that the period of office of all office bearers of the Operative Plasterers' and Plaster Workers' Federation of Australia (W.A. Branch) be extended by twelve months making the term of office four years to enable the next election of such officers to coincide with the General Election of all other branches of the National Executive and Officers and also with the B.W.I.U. elections". Mr Hagger has continued acting in the office of Secretary/Treasurer pursuant to such vesolution but it would appear that such resolution is contrary to the provisions for election of officers contained in the old rules. Nevertheless Mr Hagger is a person who has acted in the office for over two years and would be excluded under the new rules from nomination for office. For many years the administrative expenses of the B.W.I.U. (W.A. Branch) and Plasterers' Union (W.A. Branch) have been shared. Both occupy the same premises. Organizers from the B.W.1.U. operate as organizers for the Plasterers' Union and the financial status of the Plasterers' Union (W.A. Branch) is such that it could afford only one paid official, namely an organizer, and in recent times his wages have been subsidized to the extent of five-sixths of them by the B.W.I.U., for whom he also acts as an organizer in the North-West of Western Australia. , It will be seen therefore that if Mr Hagger or any officer who has been tried and tested in office is excluded from 2. f5 re etre mee Oe Ire Se en YaST TCT JBN OTWS ECA OCT) On SNOT SA MNTOVINT Ia TO OED SW OP OORONELSLY ETD Mave OY SUE Nn OTTUNETTTED Riva mn [UC VETITEOTOSTSO nv ie tain tnanes Cite WY SCDInD DOET CaaNEan DOT TUS ae PR ere nomination, two important matters arise. Firstly a member and a person who has acted in the office loses his right to nominate. More importantly the members of a branch of the organization lose the opportunity of voting for someone or not voting for someone who has been tested in the office. In so far as it constricts the right of members to so vote and the right of the person who has acted in the office to stand for election, I am of the opinion that the rule as presently framed is oppressive, unreasonable and unjust. Alterations to rules disentitling officers to nominate to seck re-election are oppressive; Riordan v. Federated Clerks Union of Australia 81 C.A.R. 5. No valid distinction can, in my view, be drawn between officers who are elected to office and those who fill casual vacancies by appointment according to the rules. Mr Hagger is, at least, an example of the latter. It is unnecessary for me to consider whether his term was validly extended by the general meeting resolution referral. No submissions have been put to me that the three year period is in itself void because of its excessive length. I add that remark so that it is not thought that I impliedly approve such a period of qualification. I therefore declare void Rule 18A of the Plasterers' Union (W.A. Branch) in so far as that rule prescribes a qualification of three years financial membership before nomination to the office of Secretary/Treasurer by a person who has acted in that office. it follows that I make the second order sought, namely that the returning officer, David Charles Parker, for the current election perform and observe the rules of the organization by recognizing the nomination of Frederick James Hagger as a valid nomination for the office of Secretary/Treasurer in the elections currently being held. Aan ARAr Dette AAA A Tl ict Ae iat retina hens nash seed Shes tnahnheninentpiatanetenemerit eis ng NE LOE Te ee Tee CS CMSTRC BTL NC VS ST OCR Mat eT rer WV Iv Tea OST T certify thet +=eend the 9 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice @ Jahn Associate AN (ronda, Dated: i. 74