Nee. svR AR AS Réeousstes A PRo par ' Copy Dae sior "Sf Oa Wd Lh the Comfptonents KR oLtate or tdaw As Caws Ceey HAS ATT DES TO THE Pte dve ATOM FORPTAILS of the , 0/ of ® -IN THE PECUR AL COURT OF AUSTRALIA JN SS ee NEW SOUTH WALES DISTRICT REGISTRY No. 19 of 1980 INDUSTRIAL DIVISTON Ae ee IN THE Mevonr of the conc _tiatror ar Arbarration 7.ct, 1394 the rul-s SAL@G Act AND TN am xr no Indust 3 tba 29 _ of the said pct of Guestions of Vly Lis the opanie:n ef tne tsderal Court cf hustraiia ORDEP 2 t y-* Jd., Smithers, J.B. Sweeney, Dvets Wis ORDO: Bowen ¢ > + K-4 @ fo ty C f. . is) Q wT the cuestions ret (1) De the zcles set aut an the rafer elec tior of th. holder of each olf oa) within the "tion as regarre reg. 3 Answer: Ves ese (2) in pareccular: fa} Bmsatet+ a - TR G t 5 ote ye \ = Paes were of weeks dept at.on a mat or Tnaaser er rh: ct the guietor of the ' darn? court of Austrealaz: OtDEP peru Q.0., mabe ra, . ete rer yayy, 7 "s 1 totem ae Vout mae QT 1 octercr, 22h + 1% wort ~ oe Mo LD, ah , : - wor) ya sci? 5 sey - atrn af yea. ize ro oywig tiif , yo d yy > ios? Waive i \ - wae . Lig we PRET Lee ahs log -~ ft t Does rele 27 ansofar 2.¢ thar elected to de shall, without of the Feaur. Does rule 4] contravene s.133(1)(a) and seg. 115(1) nusotar as that rule appears to provide tnat © person elecred to be Branch President shall, without eny lurther election, also be a member of the Pedera> bn.ecutave? AOuwelr: No Al Swe s.140(1 v are 22: So far as tt ) So far as tre requirements cf s.]40(1l)(c) are concernea, not éns: ured oes IW 'frat, PE RAL CCURT Cr a eA POLE TE POLI LA CC ) ) NEW SOUTH WALES DISTRICT REGISTRY ) no. 19 of 19286 ) ) INDUSTPIAL DIVISION Gf tne Concrlratioen and Aewiyrakion Accu 1904 , . Alterclion wv ridiea of tie ATRL oat. 'Pas satay an OF AML OM Gt unt tol regietered aude a tire rads AND Te ep 1 7 oaunser|grece by che Taoeist3 pursuart 9 of question: Opin Gl ot ' Anetiaite CUPPA: Powen C.d. Smithers 7. J.B. Sweeney J. . Lvett J. Northrep J. REASONS FOP_TUDGNSN'T -* POWs C.d.: These preceecings were prought uncer 6 21? or the -S- 7 "9 Conciliation ami Armitrarcron Act ("the Act") by ane tadusirsal Requetrar ain referring « question of text for rhe orcriian ¢¢ the Peucgrel Courr. Th queshrem aro we etter the Ar) ne Hostesses' rssoeL,arreer, an Orymeoatie wh emp Loyees redqistered urder the Acw, applett uniter sub-s. 791) of ENe seme Act to alter gio rules. ve mee wat we vee Wet tte dm eck Sek on ae f -_— Before any rule change can be etfected unc Roeyistrar om st certify where bis consent is not requiicd Lrat, anter atia, the alterations comply with the provisions of the Act the proposed alteratious relate to the electiurn of holders cf offices in the fssociation. The Bbec1c question to be an, sared by this Court 1s whether the previsions cf the Act premsc a2 structure in an organ i.ation whereby an ctead ocfFice ho o-r ma,, hy the rutes or the organization al the time of hic fer her) election, be, by virtue of that eleclion, the holder of on another "office" as defined a under the Act. The proposed rules provide for a feder Association. Keech member 1s to belong te ea Stite or Te1ritisy or overseas Lranch with its own cecmmittec of managemerrc ond officers and which will be represented on the eum ene governing Lody, the Federa) Cuourcil. Under r.22 the ede cal Council hes power, aunter alia, tic supvrinterd, merage ant control the Association's afFfirrcs, prepcrty ard funds 7. amend or rescind rules, and delegate such of ts porer as 1t thinks fit, save the power to amend or rescind rules, to ic Federal Execrvtive. Provision as Made isr a Pederal EDxeovri * which 3s the committee of manegement responsible fer cearlroL and conduct af the bustness and affaire Of Uhe Assoz1Ativnr whilst Yederaul Council 1s not 1n Séssion. The Conuneal is La meet annuelly whereas the Executive must meet at least «every four months. Toturn to) tie form or the proposea rules. Py vr 7? tbe Federal Couns i] 25 L49 be compsaced or: "(a) the Federal Ofticers who shal] be the Pnt, the Federal Vice President Secrotary; (b>) Bianech delegates who shali he the PresiGent and Seer. tary ef each Branch; (c) adcitrenal delege.te or deleuates [rom a Franch or Prenches on the following basis: Braneh Membersht Rupresentative prey aa Avpre: = 206-399 ] 400 -599 2 6CO and over " By r.41 the Federal Executive will consist of the followina: "(a) Federal Presidert; (12) Federal Vice President; (111) Federal Secrctary; (1v) the occupics for the tame being of the : postii0on of Lranch Pre.z:dent of each Lranen or her proxy." "re Pedesaul President, PFederat Vice President and Foederel Secretary as the "Federal Officers" of th> Asvociuti6n ire to be electcd for two yeals by eecret postal bullet cf e171 financoal momrbers of the Associetion eligible co vots (r.55). The Franch Presidents and Secretaries are La be cleciad by ali Tne cules also previde for viltimate contial oF Ho Gecitiwus of the Peders |! Coumeii (7.35) ard Viedeacl Byecttye (re. vl by &@ mager:ry £ tue farineral verters ot rea \seo lation voutingd by riebigeiie oadica @2 a me.,ton on 3 least half the number of Brauch Coune1rls or 5% of the Financial mewbers IL eppears trom the ebove Chat the three Federal Ufisieerc by Virtue ol their electron are mage merbers of the "euvral Couneli (a pelacy/maragement body) and of the Ped rel Executive (the cammattee of manegenenc). Simitarty, whe Breech President and Secretary ara ex officie members of Lhe Branch Councii (@ Branch committee oF menagement) and Vederel Councal and the Branch Presidents also are moewbers o rh ct > > FeGgeral Execrtive. dn his xvererence, the Incustrial Reuvastrar drew the attention of the Court to a numLer of provisions of 'tne Acc. Paragraphs (4) und (c) of sab~s.?40(1) of the Act read: '(1) The rules of an organizetion - (a) shit? not be ecnirary lo, yr fall to make a provision required by, & Provision oF this Act, the reculatisrs or em award or otherviso be contyvary to a le; (ce) shell not SMEOS uvon apelicants £0) menlershin or wMesbers, of the <Jenarvatier, condirison,, obligations or _ res! Yictions thiep, Paving cecerd TO we b bjec er this Act and the purneses OL the eg ee Yatior of worganizaticns under: "Pac Act, are oppressive, unreasonable ev unjyusedrc. Ry sub-s.4(7). "'Offie=', an re}ation to au orgonjsitien of brunch of an orm N3cation, weans - (a) the cfizsce of a manne, of tre commitire of manedqemeut of thi orgeny -ot1on or branch; the Aas cial (aa) the office of prestdent, Vicc-presideni, secrotary, asslistent-secretiry or other executive officer by whatever nawe callod, of the arganizehion or branch; (b) the office of aA person holding, whether as trusten or otherwise, pronertys ot cre organinaticn or pranch, Or proper ey 2PM whaeh tne OrgGanisratacn or branch hes any beneficial interesu; (c) the offace of a menber of any council, ce.mnarttree, panel or other poor wartis: the organivition or brencn which, wr rules of the organi.ation of OF tac loach enpovercd to make, alter or reteind rule: a enferee, or perform functious in relation to the enforcement of, rules or to exercise any of the functions of managemert; (d) every office within the organizaticn or S"ranch for the falling of which an electron is required to be conducced within the organizecicn or branch." lt as clear from the above chet the Jedevel Offs ie] ete an proposed rules occupy more than one ""oftice" as aefine?, also Go the Brarch Presidents ana GSecr tars Sub-section 332(2) provides. "132(2) Yue conmarkrons Lo bre compiied vith Dy associations so applyana Foror Frat. erd ory erganyeaticns shall be as preseribed." The relevant conditiens are *hose prescribe] by rey.11% material portior ot which 15 as"follovws: "(1) The Tellowing conditiens are pres riked conditions to Le coaplied wilh ww oan ncsoujat icy applying Cor reatsuracion, mrwel_: - g, (dad) whe affairs of the agssoc1aticn shall be regulated by rules ... providing, in relation te the astocirtion, for - {a) a committee of menagruent of the associetion end of each brencn of the assoclat 1on; {b) officers of the wussociatior ard of each branch of the assuciation; an mn (c) any conference, coune1}], panel or other body (additional to the committee of wenaqemcnt) which as enpowercd to determine pslicy or |} exercise functicas of wanagement in the association or branch. (2) The conditions specified an the lasl preceding sub-requiation apoly in retation to organ tuations in Tike maagner os they apply ap relation 12 an assoc 1ation applying for reaqictration as an organization." Paragraph i23(1)(a), 1n so far as iL as relevant. reads- ecis in ade} tron te the conditions referred co in culs-seetLton (7) of section 122, the ecndtrions ¢u he complied with by ... organ3rations areludé a ond1itioa that the rules of ... organisations: H ' (a) shall provide for the election of Lit helder of : eech office within the ... organinacion cither \ by - : (1) a darect voling system; or fl {y1) 2 collegiate electoral system being, 15 j the case of an offtce the Gutires of «nich ' are of a full time' nature, a one tier j edllegiate electoral system." In the recert decisicr of the Lull Coit of che Teneral Comrt ai thereif +. Yownsend, hange? down on 2 Aprald aS, the . Tagersuy Greta exere assed Fudls feo emithers dD constee oi wat > las a mewaber of am organization cf amployers elected to a4 Pargnatea ore ntive office and ececding by virtue of the rules te the ofbice of membec of Federal Council had tow been Giectead to tit latter office wn accordance with the Aet. sritners dd. omsidered ther the legislation envisaged 'ez separate electron,, direct oc collecaiate, for cach offices 1 the orgumizctiion". He addeua that: "When a rule provides that * perscn elecred to particular office spall thereupon accede te ther offacee the elertorate is deniod a cnoice as Lo whether 3t desires that thet persen shal] held thet otres offiec." The amplication is that each office in the eshaustive list of offices in S-4 125 seperate and must bo wie wubje.l of a UR aad election. in Shecrat v. Townsend, supra, thie reasoning wes not necessary for the ultamate decisicn becuuse the rale in question wee held on othir grenris to be invalid. however, y the analysis by Smithers J. rarses important questions. At the heerang, Covnsel appeared on behalf of tre Airlire HNostcsees' AesecLlatlion ang was given llave to eprear on hehal . . ' > > of members of the Austiajian Coencei]l of trace Unions anc bie Comneiwealth of Australia Coverntcnt Employces! OrganrsaLcLons. Counse] war also grunted leave tu Yrepresent the Vchicle Puli@ers FEwpleveesc' Pederation. The Registrar was not reprosent:d, wpe Crows did not tnver ene but bricfed Counsel © appear e © Mics suri aspects and ameiccatrwons « the arctumeeann eee! aa a arr! it was submitlea by Counsel for the Airlire Losrecseus' Assccl1aticon that the repercussions cf any decision reausringe € separate election te each office as Faned would be cneomous. Nc tt only wovid a qreat number of erairications $4.9 ileix cules suddenly invelid but such ah interpretation could cariy nean that urton wenhers were entitled to elect a dirff-.0it person to each office. Tf such nv situation cneusreda, organizations would find it almost ampuess_tble to raintain Janes of communication withjn thezr tcederal systems and he unakle to function efficiently es repilesmantabive nociis. Whilst it re true trib there coula be Crease licOuveuseine Lo Many organae t4ors, the refererce i¢ Cn A question vl lev and 3t 49 necessary to Jook at relevant provisicrs of the 7 3 an the cortest of the Act as a whole end the cases abieoer. Tooking at the matter in tnas way, T fand myself ¢ to acerpt that tne legislature intended that each "oftice" a5 defined should he the subject of oo separate election. Pa Further, I cannot agree that if the Act Gid reauazre stich wth election it yvonid be satisfied by a ballet paper enwierattue 2 number of offices ay a Composite positon for vhach neowinatad candidates were standing. If offices are necesscriliy sepzrate, menbers mus be able to nominate a separate candidate for aach. loam unable te see that rey.t)5¢(1)(a)(2) umelies air notion of metus) esclusivity between of ficas In Tack, at seems tO me to pbe simply grouping functions into the varaicis claubses such as one would pced to find in a federal systen. Tn the Cane of Bickucli v. Analgewated ongineerinagd Union (1969) 35 F.LLR. 215, rveg.115(1)}(C) (1) was drecucsec extensively elong with s 140, though ro ment-on was mede of the then current s.133. The Court wes there concerned with en Oorganmnicatscor the rules of which nad unsergone radical resvructuring. In this reconstruction :t vas propoered Lhat certain elected Pistrict Cecrevarics be appotnticd as the first State Secretaries. for the period of Lime they still pad leit to serve am thear previous elected otfices. The ruses arder discussion were substrnizally the sams as those presentiy before the Court. It aS apparent from th2 discussion (at pr.?tG-219) that the Court was fuliy avere that the dnties of state Szcretary included that he be er off3ci10 a member <i State Conference and State Council. However, ro point arssc an the & ce se as hes arisen before us. There ts ne doubt that an complaunce with reg.115/3})¢da) (a2) the preposed rules provide for elected officere and c oamitree of management at the Podera and srancya Levels an Gio a policy/management body at the Federal level. reference Lo the definition of "office" tLrat cone these funetions 13ferred to as "offices''. fhe cefFiurtien of ""office' iunaced 16 sincular'y unhe eptvi necalse Of its intended eshaustive nature ana the faclk thon ai defines "offace"™ by referring to ""efLice . Turlbermine, au appea.S thet paragraph (dG) of the definttsen overia,» rtiy ohhes puaradsapr .. - 10 - Sere support for the notion of separatences 4s sala to arise from the use of the word "cach" ion pari.t33{1)(a) which was faist introdneed in 1973 and later umencod wn 1976. Te yoads that the rules "shall provide for the electior of te holder of cach office ...". Counecl for the varices associations argued that the emphasis must be pul on une election of the "hoJdez", not the eleetion to ench of Fice. Oa to co sideration of the Act and cases IT agree thar this must be sc. The terus of sub-¢.133(1A) inserte@ at the same tire as a new sukb-s.)33(1) by Act No. 138 of 1973 also tend te support thar view. This last consideration 15 nol weakened by rie AJeletion of sub-¢.133(2A) and the ansertion of eo réenv ad para.l 3(1}fa) by Act No. 117 of 1976, Th wb objects of the Act are enwmeratcd an s.2. Arona thea ara the follownny: "(e) to encourage the orcanisation of representative bodies of employers and employees and therr registration under tris Act; and Ce ({) to encourage the democrati control oof erganisations sO tegistered and Me Fuil partretpa-ion by siembers of such an organization an the affairs of the Organinatreon. Counsel took the Court through th Various steces of arpendment to the parts of the Act with wrach we are concerne] and 1b was noted thet elcetione were noc a fer lur- until 1Ieg. The proolent of what actually constituted an election uncer tie Act wae selved an favour of arecluding collegsate clecloial rheres't Rego) systemc ain Steele ov. Federated trom (1954, 52 C.A.R. S94, came up to 1973, abolished ard then re3jnstated in J976, Unt11l 1973 the cectich Cealing with electidus, ».70A, which was renumber@] o.135 an 1°36, concentrated on secret ballots, absent vebirg end conduci of elections. [It only applicd tea sube-pacos. (2), fae) and (b) of the definition of ""oftice" as gt rieceé at the time, Lesvira the corduct of clecliats under sub-rera (c)} open. TI do not think that sefore the 49373 emend ent to s.132, there was any question ¢ a pe a separate election for each office. tT belacve thet the antention of the 19/73 amendnent ymeJugana "eavi" gn reference to orfiec, was merely eicurii g Nat ine rules governtsrg electrons now applred te ali the subonoragraphs 1a the definition of "orfive". "his belief cs aeinforced cu reading pary,L33(1)} (62) where proviston 1s mede v for postal voting an relation to "every clection for an office of a bined referred to ain pera.fal (aa), (FP) or (c) of the Jefinition of office". Where ls no mentiuon of "each" office, becsuse sub-para.(d}) cf this defanitien 128 net uncluded. What must be wept constantly in mind ts that ordarstatrons registered uneer the Act may represent meny thuusends of members all otcr Austcalre. These members must be represented o Gerocretically bhuc also cfficiently and becrias2 Of tlic Givicion of Aust ealia into Slates ami Territorcvec, 4% edere) Tysten OF rcenreasent-.zren would ps nerinal. Me Courts ° a te (a) froenenliy corpsidec.d varzous type: of federal syvsteny a! from the cases it 1s clear that organivations are sbic t LO desian specific structures with daCferent chec's and bpalanecs to cater for their own andividual neads. The only paramete: if] are those embodied an vey.115 reenuiring elestison for a committee OF manayement, tericus officers ard mny olbir eotie - makinuy or maragument bedy. Ac was oald in Tovell v. Fodar- ted I:qnor and Ailjlicd sirdust ries Employecs Uni/en of (1978) 35 F.L.R. 72 at p.8l, pec Smithers ora Ivatt Ju... "A constitution suiteble ter one urion may be unsultable for another ... The rules uest he desagied to ensvre stability arn management and at the care time to avoid installing officers wne cannot 70 removea. Tn the designirpg of rules epprepr late FOL an organizatlicn of em: loyecs much must be left to the Judgment of those who make the rules." (And see generally Lovell supra at pp.89 and Cu; ard Wiseman Vv. Professional Radio and Nlectrenics Tnstitats cf Austral (1978) 35 P.LL.R. 24 at pu.32-35 and 3f-42.) It has been held on a nuwber of occasions that. Falla sy * Gesual vacancy by appointment 18 permissi.bie ian seritin clreumstanees (Cameron vv. Austreltan Vorkers' Uni)]en (i059) FLIP. 45; Puree v. Avalgamited Sor soinere oF Aust 75 C.A.R. S&; Wateou ov. Workers' Unior 10 F.T.R. 347). Some assncriations have ve]idt wmposed leneth of moimhership reyuirercnls for offiee lolders (Wats v. Australaar Werkers' Uricn, surra; Hhovelio ov Yeceruted Liquor and Allsed Jnoustrice bnployees Unactn cf Australian, suple} art wn see cases Poederal representation for ghaller Stetes gre@cer than would be gjustificd on ai were ft consideration oF their sine, has been poimitret, wherc there was provision in certain carcumstances for a plebiscite (Crealy v. Commorwealth Lank Officers' vex,ociation (15k) 1 F.L.R. 153; cf. MchLeash v. Kane (1978) 22 ALL.P. 547, soland v. Munro, Federal Court of Australra, 23 May 1959, unreported). lece, supre, at pp.3o7-158, the Court adeptcd In Crealy's the opinion of O'Mar G. ain Thores.en ve. Mackay (LS) 59 C.A.R. 56) ct p.890 am celatien to the sceope of an organization under the Act to alter its rules The nature of the provisrtoeps. to Le mad> Lor che electton of committees and officers 1 5, matter for 'he wenbers of the asso determine havirg regara to tire nature 9 that hoy - and the ec irennstarees whieh eriat wun relalro: to its membervhip. the some is true of the provisions Lor the control of such commintecs Py meaners cE the assocjation."" . In the case of Rickrell v. Amailaawated Freineeram tr on, Supra, the Court considered that, in the circrumscarces, appointivent of elected District Secretaries tra rs X92 the LS rit tate Secretaries was permissible becauce tne riles es a vinals provided for the election ef nerson: and bodice, reg.}15(})(d). Kerr J. commented (ab 9.250 rules peovided fc: the tleeticn of offices tus Vegree to be jyndged in all cne cire mstanees ot the nartacrvinag unter and tte tries. It was submitted hy Counsel that each organization should . Ba be able to determine its structure by providing for conposile effices an the rules so long as the hold of those of Froese were lected. Thus, the rules could provide chat the positron of Branch President carricd with 3t certain functions such as membec of the Eranch Counei], Feceral Council and Federal Taecvirve. Counsel appearing aS amricus cuvaae pointed cut thal, af cerrzned to extremes, this could be dimserou . che rules could give not only executive officers ocx of Fico appointments, but officers whose funetrione would normellsy se considerca narrow. Fven if this were possiple, | do not dere that para.1/G(1)(ce) and sub-¢.139(4) could be used arrens. it effectively to prevent an anappropxyiate conyunetion oF 2 One rust licok again to the definition section of the Act: to the definitions of "direet voting system" and "colleciat: electoral system". Th conjunction with ome Must alae read sub-s.4(5). Tne definition of direct voting system in sub-s.4(1) 15 as follows: Direct voting system', in relation to 4n electior for an office wm an oOrgani.ation wean: a method of clectien at which «11 fanerecial memboecs, or aly} Farereial members ancluded in such brane siction or other Givtsion, or gn such cles+, 75 as appropriate, Paving regard t& the pature of the office, ire, sabgeth to reasonable pao is)uas wel: rerpect to orroim)e st, eliyible to vote." a Thus, ech office must have ano app PrOwtahle clea cowvata 2ata depeoline unen Phe narerce of the office. Tis Ares nse seen te me to preclude a Branch electing ¢ President both as ite hevd and its representative at the fedcer<] scvel. The matire of the office S branch Hixecutiuve and Gclecate to Pedcrai Council and Executive. In a federal system Wrenches! interests must be represcnted. Thus, tuc nature? of an aFiice in 3a federal} eysten will oLten reqvire a branct electorat: because: the functions are besically branch repiesesta.ion though the elected officer sits in a federal governing ho' Indeed, I would consider that rules requiring &@ Branch delegate to the Federai Council or I'tecut.ve to he eleoved by the whole TPedcral menbershaip might well be held unceasonatbie an terms of para.ldCfl)(c, (cL. Alien v. fowneciss $1977) 3] F.LLAR. #41 ar p.471). NMorecver, *he Act specifically provides thac in relatioa to election for an office an an organization a one ticr colleuzate electoral system is permissible, By Sul+..4¢(L) 7 as definca as foliows: 3) i n + a ct 9° collegiate elector uo Colleqiate electoral system' an relation to an election for an office in an organivation meane a method of election ccmmprising 4 firsi wtede, at «lich persons are elected to a number of ctfices by a direcc voting system, and ai osrbseyven. stage or subsequent stages at wnich porsols ar foented Ly anc from the persons #lected at the stage." Sub- section 4(3) expands ilhas definition: "Per the purpeses of the axplic:tion f definition of 'colleaiate electoral system! h sub-section ¢1) ain relation to an ele office an an ortygartsation, am ereccorel ovatent olrerwise corplaes with that defiritien stajlo ore decined to ecgmplyv with that definatior notwithstanding that the se:s50nus cecuprising a body af persens by ena fiom whoa persons are elected at any Scage subsequene to the farst stage include persons (nol cxceeding in number Fiticen per centun of the tote] number of the body) wro are the helders ot offices entiiling the holders to memberehar of that bovy (vhich mty include the offace to which the election relates) huc ere not members of that body by virtue of aun election ain accor'apee witn that definition, heirg persons each of whow has held such an offtee (whether the on offace or rot)' at all tanes since being elected to such an office under a collegiate electoral syslon, or a Guirect votirg system, as defined in sub-sect on (1}." Jar } The Act recognises that persons elected to partic. of fices way Le ex Of f1c10 "uNbers OF a baudy "by anu from whon persurs are elected". this body 1s not called a committee of Menaucmant and, mpdeen, af we Fulf1rlled sinply the function of ar electoral college its members could not be said to hold ex officie "offices" on such a body. However, as l hve previously stressed, the Act ervrisages that oruanisatlois have a oreat deal of tlatatude an determining their sirocture There ais no indicaticn that a body by and from whom persons are elected shculd not be a committee of management cr oaLlher policy or management bady. Indeed, 326 seems to sin that the section 1s directed at a bogy which already existe ane frunetLrons apart From any electoral college activity. li Wou) have peen simple, othervise, Lo keep to the definition of electoral college" as it stands Moreover, rea.]i3s requires thst eec! oreanivation and branch of ah oraantzalLion nrovade for the eleecascn £O ary policy making and management modies cos welr So ag comrritce of Mransagereant. i I consider that implicit in sab-s.4(5) 19 a recognition of : a fairiy typical organizacioenal structure whereby some elected officers by vartue of their election sit in a body which functions not anly as an electoral college but also av 7 body : within one or other of sub-patas.{a) and (c) an the dcfinition of ""office'. lf this is the case, there can he no objection J to such ex officio mumbership of menagement and policy bnoé1e3 in a anion, the rules of which provide only for direct election. on this basis a differentreation can be mado betweer. of fier noléers: chose who are primarily elected to a pody al thes? who are primarily elected to an execut)i.c positicn. those in the latter category may, under the rules, be membe.s ef a beady. I do rot think it oppressive, unreasonable or unjust under para.140(1)(c) in thas case that Tederal Officer» be, by {heir election to those offices, members of the Federal Council and the Executave. indeed, rules which provided thet the Federal President should not be a member of Council or the * Executive unless successful at a separate election For such membership, would necessarily give members the option to exclude the President from those bodics. 1 consiéer such rules might well re held te be unreasonable in terms of para.140(1)(c). The general tenor of the Act 1s to provide representative bodies for the purpuses of keeping indastiiaal peace The ' reality 18 a feeeral system and vast and far flug mambersnips. She wnole financial membership erecis four persons as its federal Officers to handle day to day busetuess and repert to the larger Federal vouneil. Jhe Branches are ensured of tepresentation at all federal levels by pelsons elected both specifically to Council and generally «as chief executives at the haghest jJevel. The extent of the cofficas aré explained in the rules which are readily available to all members . I would answer the question of the Industrial Registrar as {fcllows: 1. Do the rules set out above meovide for the election of che holder or each olfice (as caeftined in s.1) within the organisation as required by para.133(1)(a}) and regulatzen 115(1) (da) (1)? Answer: Yes. 2. In particular: {a) be rules 27 and 41 contravene para.133(is(a) and + regulation 115(1)(d)(2) an so far as those rules appear to provide that persons elected to re Foaoral Officers shall, withovt any furiher election, also be maombers cf the Federal Council anc Federal Drecitive? Answer: No. (bp) Does rule 27 contravere para.}33(])}(a) and regulekien 1IS(1)(d} (2) an so far es that «vle apperirs to provide thet persons elce. ed to re vrench Press a ie 8 oe etme we nt Lionel ide mee 8 tet ta and election, Ryarch Answer: No. (c) Does rule 4) 315(7)(d) (2) provide President shell, be e member of tne Federal Answer: No. Do the said Secretary shall, without any further also be members of the Federal] Counci]? vontraven> para.133(3)(a) and regulati-r that rules In so fr as that rule appears to a person elected to be a Branch without any further clectio., also Executive? satisfy the relevant reautrements cf paragraphs (a) and (c) of sub-s.140(1)? Answer as to (a) Answer as to (b) Yes There 1s nothing before us to suggest the rules do not satisfy para.(c). * sou om PT certriv thet thi - emi the a \ preceding pay + el. 450 8 copy ol the Reasons for Jv. coete be 2 samol his Hemeu® the Cuiel dudes, Sir Nog lL Boven "~ - + Assocl1sate , ve f "a ff \ ny \ -/ a C. . ae 7 - . bho! Ne a. Ou GHateci / 1g yo — ' IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY weer eS = 9° rt te} ) > et ws uo oS INDUSTRIAL DIVISION PTH NATUR of oan elieratioa sF the Pures of {he ATP TN Ne tt ASSCOUVETONM Gn orgepas ty. Legire «red qyde Ven cate th ABBLY TO Vit, Laue REPEC BY TLE Pers pe pat, ae "TT f (vutsavnt to copon 44 vf Pye Concilvebtion ans "abetae tana Vay Long, of gquesrriens ef Jar fo, tle epvtreny eb . the Tedrrat Cover os Pasri sli. Coram. Bowen L.d., Smathers, J.B. Sweensy, fuatt ara tecthiop Jo, LGRO -¢ ° ' YVASOLS LOR JUDGMENT ' PPSSOhs EUR yboGelai'l ere re we eh Lane | yoyo bags eet the Jew, mn Men Ss Co rT boGe eS cae ts precur cer rlaat og Ef ats GL 26 ot gand s toed ahh Fer tye kee ab ta, a cn a ee ee en Oe a erates re Pa ee Se re D7 ce Oe OR 2 Oe * : ercunteation and of its branches and of officers of the organization end of its branches under a system of voting which makes adequate provision for absent voting. In 1952 by S.R. No. 39 of 1952 1t was enacted that the rules of an br aanization should vrovide tor the election of certain orber bedies of an organization and the Jaw was in the form, nameJy that the affairs of an organization srould be regulated by rules providing for, "{1) the electicn of a committec of management of the association and of each brarch of the aSsocietion; -B. officers of the association and of each branch of the association; and c. any conference, council, panel or other body (fadditicane} to the committee of Managenoant}, which 15 empovereu to determine rolicy or to exercise runctLlons of tranagement in the associaticn ec branch." - In 1956 by S.P. No. 60 the earlier regulations were all repealed and regulation 115(1) (4) (") ac enacted in the form an hich at now is. Regulation 115¢1)(d) {2} was promulgated in S.R. No. 60 of 19456. Since 1952 the substance of tne relevant reygnirements has never been changed. Accordingly the cricacal quection in this case is whetne: the ralee of the Farline Nostes sect Asscclation (the As-ociation) do provace fa, the elecvhion of a Committee Of Taonagenent mane rt ne They do provide fer the election of certain members of a Conmittee of Management, (the Federal Council). As to the other members of the Federal Council, thev are persons who have been elected as officers of the ergqaniration, namely as Federal President and Vice-President and Secretery and «he Presidont and Secretary of each brench. Rule 27 provides that the federal Council shall be commused of those of Ficers and branch celegates. The contention is that these provisians are rule fee provacing for the election of a Committee of Managerent within the meaning of the provision of regulation 115(1) (d) (i) that the affairs of tne organization shall be regulated by rules providing for the election of a Committee of Mansgement of the orgarivation and af its branches and the other categories of positions referred to in peras. A, B and C of that regulation. In the ceurse of the denate on the straight forward question as to whether this contention 2s sound, the view ras been put that the provisions of regulation 135¢)) (1) (1) are In Sone way qualified oy %.133(1)(e) of the #ert. T chink it appeeis on e@aamination tnat that section Aasvs prot play a signifacant part in resoiviny the besie question whether the rules of the Associetion veally do provide {cr the ~lection of a Catmittec of Minsgewent., The bettor view in my of tnion us that the regnicement that the rutes shal} provide for cre —— a ee te cd election of a Committee of Management is to be found in regulation 1315{1)(d) (i) and that that requirement is unaffected by the provisions cf 5.133 of the Act, and that if follows that the requirement that rules shall provide for election o: any pocition referred to in pares. A, B and C of regvlction 325(1) (3) (1) 1s unaffected also by tne definition in s.4 of the Act. The matter depends on the construction of 5.133 of the Act. That section is, I think, really concerned to specify particular conduct to be observed in the carrying out of cerLain organization elections in particular elections for "offices" in the organisation and thus in elections provided for in wules complying with the provisions of regulation 125 (1) (a) (a). Tiose requirements include the conducting of the elections, by either a direct voting systen, or a collegiate electoral systum, by a returning officer who is not an officer or employee of the organization, py secret ballot with provisions for ansent voting and otherwise ania manner. to be Jaid Gown. Section 133 ag at present in foree follews various statutory provisions a]l1 of which have been concerned to reqvire the sakinag of rules lay'ng down reagulremenis to be obseived in the conduct of etectionas in an orgarizacion. In each of those statutory provasiens 1t 1s e¥pressly stated that the reguiycments as te the making of tulec as seecitied et PRS Ante ee ee caer ee ee Su a ae a ee therein are "in addition to" the conditions to he observed by organizations as cpecified in what is now section 1322) of the Act. Thet section providcd that the conditions should he as prescribed. Jhe cur.ent relevant prescription is regulation J1&(1)(d) (2) tnd as mentioned above previous p.escliptions have so far as relevant been in substantially similar torms. The first of those statutory provisions was s.9 of Act Neo. [8 of 195] the mayor impoit of which was to introduce rr lon q voting by cecre allot in elections in respect of certain offices, namely those within paras. (a){aa) and (b) of the Gefinition of "Office" as it then stood, This provision became' s.70A of the Act. The next statutory provision was the anvroduction by s.52 of Act No. 138 of 1972 of s.133 of the Act, the majer import of which was to introduce direct rank and file voting in elections for all offices. Section 143 of the Act in its present form was introduced by s.4 of Act No. 117 of 1976. Tt enacts thet rules snalj] provide for the election of the holder of each office within the iw] Orgetization, either by a direct voting system or collegucte cyste., ond provides for certain otnmer practical Hatters such eS secret ballots and abSent voting and the conduct of the pallet, but the introductory words of the that the provisions in oat are "ain addition a Section syoc to" those cenditirens to be complied with by organizations pulsu@ut £60 S.27. (2). Vhese conditions are thaose prescrived un regulation 115(1)(d) (i). Thus che requirement that rules shall provide for clections for the pocitions referred to in paras. A, B and C of regulation 115(1)(4)(i} was in force prior wo che enusctnent of 3.133. Secticn 133 does not purport to qualify that requirement. On the contrary, 1t confirms it. Tt mokes the rule fa vo be made pursuant to it concerning the conduct of elections applicable to elections for the holdirg of which rules made pursuant to regulation J15({1) (cd) (1) are to provide. in Sherriff v. Townsend V. No. 12. 1979, 3 April 1986 (unreported) I said that 5.133 assumed thet there wiil be clectiers pursuant to rules made urder regulatzon 115(1) (d) (1). But 3t does more than that. It refers to the conditions already provided for in s.132 and enacts. tnat organizations shal] compiv with certain otber conditions "in addition to" those alrealy applicaple pursvucnt to ¢.132(2) wnich are of course thase ser out in regelacion V5 (1) (d) ya). It 1s not qoing too tar, therefore, to say that 5.133 16 a recent statutory confirmation of" the continuing operation of the conditions prescribed in regulatior 135(1) (d} (1). Section L233 (1) (a$ 15 not to be construed &@S enacting the provisions of regulation 115 44) (4) (1) all over again. Tt takes the siruavion existing under regujetion 135(])(d) (1) as it finds it, namely that clections for the positions referred to 15 regulation JIS(1) (dG) (i) are alieady provided for, and provides for the making of fortrper rules chout the method of conducting such i Pr oresriipes auch "conduct rtles" to be ® made for elections for nolders of each office. But 1n the context, that would arpear to mean each orcfice in respect of which the provisions already required to be in the rules require an clection to be held. FE hovever, the section does require the making of rules ior holding any elections additional to those reauired by rules made in accordance with regulation 115(1) (d) (2), 2& would not take avay the operative effect of that regulation. And 1t 1s to be noted that the positions comprised in paras. A, B and C of tregularion 715(1) (4) (2) would comprise practically all, if not all, of those specified in the defiptiun of "Office" in s.4 of the Act. But the manitest purpese of section 133 enacted in 1976 js to permit collegiate elections rather than require elections in respect of offices, if there be any, beyond those comprised in paras. A, B and C. In any event tue duty umposed on organizations by regulation 115(2}) (d) (3) $0 provide for the election of a Committee of Management persists alongside whatever construction of s.133 is adopted. And the same may be said in relation to the former 3.70A of the Act and in relation to s-133 in the form ayn which 1t stood af enacted in 1973. The issue in this case 1¢ whethe. rules which provide for an election to one of the positions in an crqanization which are referred to in para. B of ceygulation 345(3) (A) £2) and also provide that the werson elected to that positi10y accedes, @x efficio, to anothe: posivion, nanely 4 positten ' . within the scope of para. A of the regulation, can be said to be rules which provide "for the election" of | person to fil} thac Jatter position, When regulation 115(1) (4) (i) requires that there be rules providing for the election of a Conmitteo of Management it 18s necessarily to be construed as requiring that there be rules providing for the election of cach member of a Conmittee of Management. The question 18 whetner a rule Ya real vt ecereteé au which provides fore the election of officers sve LY or a trustee and goes on ta provide that the persons clected as secretary or trustee shal) accede to the position o2 remoer of the Comittee of Management cen be said te be rules which provide for the election of a Committee of Management, or putting 14 @rstributivesy, the election of the mrembers c£ a Comaicteoe of Management. Or, putimny the matter an reversc, could it be said that rules which provided for the elecrson of the members of a Committee of Management and went on to provide that certain of those members should acecde, ex ft + officio, to positions of secretary or president, provided tor the election of officers of the organization? Or ceovld it ie said tnat rules whnicn provided for the election of Vice Presideit and wert on to provide that the person elected should eceede, ex officio, to the office of secretary, ft Ga a provided for the election of officers © Graarization? To wy mind the answer to all these questions 13 in the negative. It 1s a question of construction of ceqgnlation LL5,h) id) (1). lt beems co ne that rf would be agi frei Lb tt ee ee find werds to provide with greater clarity that in respect of each of the positions within the categories specified in paras A, B and C of the reguiation the rules must provide for the filling thereaof by an election for that position. In other words a procedure must he provided for ascertaining in respect of each position Ine authentic choice of the electorate of one ot the candidates for that positien. The procedure musr be such that as a result thereof it can be f£aid that there hes been in fact, an eleclion for the position. In a sense therefore there must be a separate election in respect of every position for which the rules must provide for ar election. That may not mean that a procedure may not be devised for electing one person to fill two positions. If tnat be done there has been a cheice in respect of each of the pesitions, albeit a limited choice. But tnat procedure may constitute an election satisfactory for the purpose uf regulation 115f1) (d) (i). Similarly it docs not mean thet clections for multiple positions may nat be conaucted on a common ballot paper. But it does mean that efler the specificd procedure has been carricd ont it must be possible to say of a candidate acquiring a particalar position, that he acquired ri by clectian. Accordingly, a rule which says, in effect, that there will be no election fer @ particul:r position AR Po 10. such as membership 6£ the Committee of Nanagemert, would not comply with reguiation JI5(1) (d) (2). And it wovld pot cure the situation to provide that a person elected to, say, the position of secretary shall be a momber of the Committee of Managomert. The first question which arises is whether the rules of the Associctien, the terms of whicn are sufficvcertly indicated above, provide for the election of a Committee of Management ir accordance with requiation 315/3,,.d)(1). When the ragulation vrescribes that the itJes shall provide for the elcction of a Committee of Management 1t 18 manifest that what is intended is that the rules shall provide for the eleccion of members of the contemplated Committee and of al] the members thercof. As was said by Kerr J. as he then was, in Bicknell _v. Amalgcnated Enaineering Union (1969) 15 F.N.R. 215 at 228:- "This regulation means that thc rules must provide for the election of the committee ¢f management, contcrences, councils, panels or other bodics referrea to and of the orficers roferred to. The rules mist provide ror the election of all mewbers of there Lodies and all officers." lt 1s necessary then tu consider what is invelvee iv an clectivoo, Pueference to Aeleracyis taws of Eucland Volumen TS pp. 55] et sey. cad to May's Parliomontory Practace and ty ee roe Nene et tame cee ae ie iene ee tr ll. various decisions iff this Court confirms that the concept of conducting an electicn extends to the initiating Drocess such as the issue of the writ calling for nominations and their scrutiny, @¢s well as the actual proccss of arranging for and receiving the votes and declaring the poll. See for instance Friend v. Barnes (19649) 15 F.L.R. 184 at 20] et seq, Jcnes v. Farrow (i971) 20 F.L.R. 73, and Re Rioction for offise in Australian Institutc of Marine and Power Enagiare.s (1973) 20 F.L.R. 407. Express autnority 3s lacking as to what precise steps are required to be taken to ensure that those concerned in ae election both as nominating candidates and electors are apprised of the positions or offices with respect to wnich they are invated to nominate or to vote. But there can be little: doubt that jit ais esscatial that an calling for nominations and preparing bellot papers steps must he taken to notify these concerned as to what office o1 position 1t is with respect to which, the election 1s to be held. when therefore regulation 115{1)(4) (1) rofers to a rule providing for an clection with respect to a position or office it must be taken to be referring to an election in which these bisi2 reguirements are observed. Accordingly what is contemplatcd by rcovletion , 115(1) (d) (1) as thet the wzeles of an oaryenivation shall provide for the election of, (a) the manbers of the Committee of Manacencnr of the 12. » organization and each branch of the organization at elections in which those concerned wil] be infoined that the pesition or office in the election in whach they are invited to participate is the position or office of member of the Committee of Management; end tb) officers of the organization and of each branch thereof at elections in which those concerned will be informed as to the office or offices in respect of which such elections are bering held. The rules of the Association do proviae [or the election o£ federal offices identified as the Pederal President, Viecc-President and Secretary. But so far as the Committee of Management 1s concerned they provide for the election only of certain branch delegates, deseribed a3 additional delgatcs, from branches, the number of whom in respect of each branch depends upon the numerical strength of the branch According to rule 27 the other five members « * the Federal Counci) are the Federal President, Vice President and Federal Seuretary and the President and Secretary of each branch, the last two of whom are deser2zbed as branch delegates. The rule purports te confer menbership of ine Federal Council upon each of those five officers and to do so by reference to their holding the positions aentioned. Toe ruices do not provide for tue election of these off w cere to RWeabersnip of Pedersi Council. Acca:iding]y vr would sean 13. that the rules f#il to comply with the reguirements of regulation 115(1)(d)(i) in that they fail to provide for the election of a Committee of Management. They provide for the election of part only of a Commictee of Management. It is put tnat so far, for instanere, as the Federal Secretary is concerned the requircments of Regulation 115(1)(d) (1) are satisfied by the provision made in Federal r.55 for the elcction of the Federul Secretery and the provision of Federal r. 27 that the Federal Council shail be composed of certain desiqnated offices and delegates, one of which offices 1s that of Federal Secretary. It is said that the electors know, or must be taken to know the rules, and therefore know when they are voting in an clection for Federal Secretary that they are also voting in respect of the accession of the person elected in that election to the position or indeed the office of Federal Councillor. But I think the betcer view 1s that what the inforned voter knows | or is deemed to know 1s more accurately expressed by siyine oy that he knows that the person elected in the ballot relating te the office of Secretary will withour further election accede to the office of the Federal Councilior. He knows that there is to be no clection at which any members will be asxved to vote in respect of the position of one Federal Councillor, nawety, that woice w1rll oe acsumed, ex officio by the Pederal Gecretory. And the effect of £.2) 1¢ to create o posi tien end oFFice of Poeceril Counciltle: which us re F it eLrved e for the person who may he elected Tederaj Secretary. That person will accede thereto rot as the result of being elected thereto put as the result of being elected to an entirely differcnt position anid office. This process would uppear to be the enrcithesis of the process of electing a member of the CournciJ]. By it a person becomes a member of Council without facing an election in respect of that position and that occurs because the rules Fail to provide for the election of every member of the Committee of Management and thereby fall to provide for the election of a Committee of Management. Considérations to the Contrary There are a number of considerations by reference to which it 2s urged that what scems a very plain provision should be qualified te the extent that at least with respect to Fedcral President, Vice President and Sesretaries rules providing for their sppointnent to the position of member of the Ceoupittee of Management witnout election to that posirion are to be considered, in some way, @& rules previding for election to that postrion. There is seid te be 2a yenoraliy accepted view that organizations are cntitled to arrange thei: governing end adiwunistrative structure in a way Ssuitakle to themselves. Evati 7. and 1 in Federated Liguor and ALi Unsonm or 15. "A constitution suitable for one union may be unsuitable for another ... The rules must be designed to ensure stability in aanagerent and at the same timc to avoid installing officers who cannot £2 removed. In the Gesigning of rules appropriate fer an organization of employees much must be left to the Judgment of those who make the rules." And this 1s true, as 1S, with respect, what O'Mara J. said in Thornton v. Mackay (1945) 56 C.A.R. 56] at p.599:- "The nature of the provisions to be made for the election of committees and officers 1S primarily a matter for the members of the association to determine having regard to the nature of that body and the circumstances which exist in relation to 1ts memcecrship. The sane 18 © true of the provisions for the control of such committees by members of the association." But tnis freedom, must be exercised in accordance with the law, or as O'Mara J. pointed out at p.590, subject tro the presccibecd conditions. And it is no real fetter wpon 1t to have rules providing that a Committee of Manauement shali be elected. And it can ve done in appropriate cases by election even by the collogiate system. So far as a President of the orqanivation is concerrnea it as usual and desiteble tor that officer to be a incrrber of and presid: oat the meetings of the governing hodies thereof and the rules cf the Association so provide. There is "uch to be said fcr toe view that the person elceted Prosident * occupies two positions in the categories set out in paras. A, B and C of regusation 115(1)(d) (i). And it 1s suggested that 1f£ he has to stand for separate elections for each position he might fail to be elected for, say member of the Cormittee of Management, and would then he a presiding officer without a vote. However, I think the better view js that election to, and cccupancy cf, the position of President incorporates membership and Preezdency of the Cowmittlee of Menagement and that the Presidency 18 one position with various aspects. Each may be an ofvice. But whether trey are offices or not is really not to Lhe point, save that 1f 1t were necessary to have separate elections each must comply with the conditions enacted by $.133 of the Act. The definitions of the expression "President" to be found in the Oxford English Dictionary and set out hereafter, support tnis view of the President's position, But 1f this be not so and an election for each of the positions is necessary by Law, the ¢ituation would be unusual but far from unworkable. If it were the will of the electcrate that the President be not automatica'ly a ? member of the Committee of Menaqewert that would be at lea st tne working of full membership participation. 1f£, as I think 1s the case, the clection Fer the poeition of President is in form and substance an election for a pos.tion in which membership of tre Compittce of Management is iancerporited, beth py the rules of the Association end according to the ordinarily held corecpe of the position, then the one eleccian 16 oh cloction fer each office within the concept of the i meen 17. Presidency. a It was said by counsel supporting the proposed rules of the Association that each organization sheuld he able to determine 1ts structure by providing for composite offices in the rules so long as the holders of those offices were elected. Thus tne rules cou?4é provide that the pocitions of Branck President and certainly other officers such, no doubsc, as Vice President, Secretaries and Atsistant Secretaries and possibly Trustees or Orgonizers carried witn then membership of the federal 'or Branch Councils, the notion that these offices might have membership of Vederai or Branch Councils so conferred upon them was based on the provision in s.i33(1) (a) that rujes required to be made pursuant to that section should provide for the election of the holder of each office within the crganization. But this section is not directed to such a notion. It is directed to the making of rules providing "for the election of tne holder cf each office within the organization by" a particuler type of voting methed and by secret ballot and subject to other requirements. 1t is nor direct.d to the making of rules providing what clections shall be husd. That has been dore by regulation 115(1)(d) (3). But that regulation gives no guidance as to what particular node of election is to be aderted in respoct of the election of tne holder of each office within tne organizztion. And that gap ee & ats 18. r The language used 1s hardly adequate to indicate that notwithstanding that the whole of s.133 is additional +o regulation 1]5(1)(d)(i}, theough 5.132, it nevertheless autborises rules which w3ll provide for a kind of blanket election to one office, which will remove the necessity for an election in respect of any other office Federal or Branch. One would feel that the netion that election for one office will suffice for every office would be a provision contrary tro the plain words of regulation 135(1)(d){i), and would have te be found in egually plain words elsewhere, and cortainly not ina »rovision such as 8.133 which is expressly declared to be introducing conditions additional to those in regulation 115(1) (4d) (i). But the nection must be regarded as contrary to the chref objectives of the Act (See s.2, particularly s.2(f)), and to the whole thrust of the previgions for elections in s.132, s.133, regulation 115(1}(d) (21) and regulations 136B and 136C and Part IX of the Act. And yet « acceptance of this notion would seem to be vital to the case put forward on behalf of those supporting the proposed rules for the Association. Mr. Caston who appeared as amicus curiue pointed to the surprising consequences of accepLing the view that election of one oftice was a sufficient foundation for appointuent to anotner. Ne pointed out also that if the notion actually represents the law as established by statute, even 1ts mInore bizarre cffects coulda hardly be regarded as contravening tse previsrons of 4.)40{(]). " 19. It iS more "important to observe that aithough acceptance of the notion involvcs that a person elected to one position may on that ground be appointed to another, its critical effect for current purposes, is to render regulation 115(1) (d) (i) inoperative to the extent that persons clecied as officers are appointed to the Committce of Management. It would permit creation of a Committee of Management to which no member was elected. This 18 in no way far fetched. AS appears from the reascns for judgment in Sheriff v. Townsend (supra) the Committce of Management of the Victorian Branch of the Vehicle Builders Union is, accordina to the Union rules, comprised of sixteen persons being the elected holders of offices other than membership of the Committee, including @ number of elected organizers, and only four persons elected to that Committee. If the notion referred to above he accevted, then total elimination of elected members from such a Committee would be lawful. And, of course, a situation where the Committee elects the officers and the officers becomes ex officio members of the Committee, as is the case in some organizations, is calculated to promote continucnce in office of particular officers, and a kind of official inbreeding seriously to the prejudice of democracy and merber partici- pation. It is difficult to see how rules permitting this state of affairs or anything apprecching it could possibly be thought to comply with the requirevent of regulation 115{]) (d) (1) that they must provide for the election of a Committee of Management. 20. Tt has been argued that a system under which an election it held for one candidate to fill two positions 15 unacceptable because 1t deprives members of the oppertunity to siand fer and vote in respect of each of the positions. But the actual reroval of the necessity to hold an election at ail for a particular position or office by appointing to it a person elecred to another office 1s a much more shattering blo. to the members' right to stand for office and to the notion of full member participation 1un Union affairs. The rules of the Association differ from those before the Court ain Bicknell v. Amalgamated Pngineering Union (supra) .? In that case apart from the temporary appointments of the officers approved by the Court the rules did provide for the election of such officers and it was not unreasonable to ssy that in respect of the positions of those officers, the cule. did, in a general sense, provide for election. But the same cernet be said concerning the positions of members of the Comnittec of Management in the Airline Hostesses' Association. It is of course appropriate that there should be branch represontaticon in the [ederal governing bodies and that Gelegates elected by the branches should be members uhercof. But to achieve this there a S no necessity to acopt an interpretation of regulation 1315/1) (d) (2) which vould permit appointment by rule anstead vf election, And indeed a een 21. t provicion in a rule that officers elected to Branch offices accede ex officic to the position and office of Federal Councillor would secm to offend the provision of regulation 115(L) {d) (1) an op very direct way. Election for branch representation on Federal Council is the democratic way. Appointment cf officers in quantity may well lead not to the reflection of the will of the members, but to rule by officials. The view urged appears to be based on the significance said to lie in the use of the word "holder" wn $.133(1) (a). But this is to attribute a meaning to that word out of harmony with the statutory evpression in s.133 that the conditions enacted Sby it' are additional to those already imposed by $.132{2) as implemented by regulatiaen 135(3) (d) (i). This is apprrent if the provisions of regulation 115(1)(d) (i) ard s.133 are read toqaether. For purposes of conttruction it is necessary tc do this, and the two, put together read in sequence as follovs:- the affairs of the organiration shall be regulated by rules providing in relation to the organization foi- {1) the election o€, A a committee of management... B offices of the assoe.tation... Cc any canicreuce, ecsuncirl, panel ... aLe r and in addition, by rules which, (a) shall provide for the election of the holder of each office within the associaticn or Organizarion either by (i) a direct voting systom; or (in) a collegiate electional system... (b) shall provide for the conduct of every such clection ... (c) sha)] provide that if the retutning officer ... (a) shall provide tnat every such clection shall be by secret baliloc with provision for, (i) absent voting: (11) the manner in which persons may . become caneidates for election; = (2ii) the @uties of returning officers; (iv) the cerduct of the ballot; (v) the appointment, conduct and duties of scrutineers .., (vi) the declaration of the resuit of the baliot... (da) sae (db) eae (e) eee (f£) eae And so far as the word "holder" 1s used in gs.133(1) (a) in conjunction with the word "office" it 3s te be noted that since the introducticn of the definition of office in the 1549 use of tne oxpression telection at the holder of ceen offtce" 23. us a convenient way Of referring to the elections to be heid pursuant to rules to be made under regulation 115{1)(d) (3). The circumstance that the positions comprised in paras. A, B and C of regulation 115(1)(d) (i) are or are not "offices" in accordance with the definition in s.4 of the Act has no relevance to the duty of. the organization to nave rules for the election of holders of those positions as regvired by regulation 115(1) (d) (i). That duty existed long before the Gefinition was introduced into the Act. The mazn contention on behalf of the parties supporting the proposed rules of the Association, appears to depend on the use of the expression "holder" of each office. It 1s from this, as-I understand it, that the notion 1S said to arise ieee that once a person bas been elected to one office he is qualified to be appointed by rules to any other office. The argument involves the proposition that to the extent that ¢ rules provide that once persons have heen elected to x parcicula: offices, for instance, offices not being those of members of the Committee of Management, elections necd not be held for positions on the Committee of Management. And of course this necessarily goes further. It would appear to be in the tecth of the requirement that the affairs of the Union shall be regwiated bv rules providing for thc electian of a Committce of Menagement. And 1t is put that the view arises out of tne use of che expression "holder" of each of fice, rather than for instance "for each office","3n resoect of , st each office", or "to each office" or some other expression of that nature. In my opinion the view contended for does considerable violence to the plain requirement of regulation 115(1)(d)(2)and indeed of s.133 itself. To achieve such a result plain words would be required. To my mird if the provisions of s.]33 ate -read in conjunction with tegulation 115, as set out above, it is inevitably seen thar no suck violence 15 intended. On the contrary as it appears to me the whole thrust of a -133 1S to assert the intention of Parliament, not only that elections be provided for in respect of fhe positions roferced an regulation 115(1)(d) (1), as reguired by 8.132, bet that those elections be conducted under the strict conditions provided py 5.133 to ensure the fair and regular expression of the opinion of the electorate in relation "to the election of the holder of every office. It would be strange indeed to construe the section as a provision authorising a union, by its rules, to escape the requirement of holdiag elections for particular offices by the simple eapedient of appointing thereto persons who have been elected to some other office. Section 4(5) of the Act which was introduced by Act 117 of 1976 was inserted to permit the election of a member to an office by a collegiate body some of the members of which were not electcd to the offices entitling them to memoership of that body by a direct votina system. from the reference in the sub-section toe an officer polding an "office entitling hin 25. t to membership" of the collegiate body, and the fact thar the colicgiate body might be identified as a Committee of Mancgement, 1 1S arquable that tnere is an implied statutory recognition that chece may be a holder of an office not pneing a member of the Committee of Nanageirent by virtue of clection by direct voting system but whose office entitles him to such membership and that, accordingly, the plain terms of regulation 115(1} (4) (i) must be qualified in some way. The precise medification 1s unstated. But tne s-tuation envisaged 1s one in which the person holds the relevant office, presumably by a collegiate election, and that that office entitles him to membership not to a body of the organization such as a Committee of Managemert, but to "a body of persons" forming an electoral college. And th3s form of words reflects the primary concept of collegiate bedy to be found in the definition thereof, nauely a group of officers. I would think, as a malter of construction, if a relevant college were referred ta as a Committce of Management it would, for the purpose of the collegiatc electoral system, be in substance but a bady of persone and to be treated as such. In addition the situation described would in any event, arise in cases where a President or Vice FPiesident held office other than by direct vote, and those offices were anvluded in the cateyory or offices the holders ef which were mambers c£ the collage. Also the definitio. cf collegiete clecteral system ur s.4 and s.4 wQ being but the inscrument of s.133(1) (a) which commences with a recognition, and indeed confirmation, of the continuing operoticon of teguletion 1)5(1)(d) (1), 1t would require cloar and unequivocal expressions to operate to qualify the requirements of the regulation. Accordingly, in my view, the provision refor. © d@ to is'not to be interpreted as giving rise to an implication that the provisions of regulation 115(1) (d} (1) do not operate according to their plain meaning. the effect of s.4(5) was not argued at the hearing of tnis matter and the decision in The Queen v. Dunphy ex parte Maynes (1977) 139 C.L.R. 482 was not referred to. The construction of section 4(5) was discussed in that case. But the guestion of its possible influence upon the meaning and operation of §.132 and regélation 115(1) (d) (1) or the possible conflict between it and s.132 and that regulation was not the subject of discussion therein, that matter not having been raised. Also ir that case rules resembling those proposcd for the Airline Hostesses' Association were examined and found not to offend regulation 115(1) (d)} (i), but the quescion whether they complied with regulation 115(1)(d)(1) was not discussed. That matter had not peen raised. There are numerous decisions which have dealt with issues concerning union rules, where, althovgh -he point was not tanen, it was clear that cuch rules purported to confer the office of merber of a Committee of Management upon persons zi, who had been elected to other offices including offices other than that of President. And of course a large number of organizations have sucn rules and have had them foc a long time. $o far as the decided cases are concerned it would scen that until some remarks of my own appeared in Maher v. Baan and Ors. [No. 1] (1978), 135 F.L.R. 197, the problem associated with such rules had escaped judicial comment. What 18 more important 1s that it would appear that before Sharriff v. Townsend (supra) in this Court relicf had never been sought, on the grouna, that because of regulation 115(1}){d) (i) such rules were tnvel:id or defective. When in that case reliéf was claimed on that grourd the Court was divided in opinion, the Majority holding that the rule in question was invaiid. However an that case the relief granted was also supported on another ground. Bicknell v. Amalgamated Enaineering Union (supra) was a case in which culcs providing for appointment of branch Secretaries on a tempurary basis to meet a special situation were held to be valid. It was held that suck rwles did not contravene the provisions of regulation 115(1) (d) (i). Por present purposes the importance of the decision 15 that the Branch Secretaries whose appointment was held to be valid were officers in respect of whom it was contemplated by the rules that they would by virtue of holding the office of Secretary, be mempers of State Conferénce and State Council. No suggestion was made that this factor introduced invalidity ir the cules or that that factor had any relevence to tho ee et ee ro 28. ta matter in issue, narely whether temporary appointments might lawfully be meade te the offices of Secretary, and it was not treated by the Court 2s having any significance, 1¢ was Simply not ralsed or adverted to. The mitter did nave some relevance to the decision ae the nature of the functons of the branch Secretaries was a matter taken unto consideration by the Court. Nevertheless the most tnat can he said of the decision is that it was assumed by the Court that the officers in question wouid be members of the State Conference and Council and that that matter was of no significance to the issues before 1t. Much the same, I think can be said of the case of Rupert Steele v. The Federated Ironworkers Association of Australia and Others (1943) 52 C.A.R. 594 where rules having similar "features were the subject of consideration. No suggestion was made that the rules were invalid on the ground mentioned and the Court did not advert to the possibility. Comments to Siwilar effect may be made in respect of other including Crealy v. Commenwealth Bank Officers! =~ _ wo n 57) L B.L.R. 153, Mackenzie ve. Administrative and Clerical Officers' Ass ia ociation, Conmonvwealth Public service (1962) 3 F.L.R. 342, Naan v. Maher (1977) 35 F.LLR. 197 and Mcbeith v. Kane (1978) 3 F.U.R. 80. Rvt in no Gecision has the point 3n issuc 11 this ieference been taken or come up for decision. It 15 correct to say therefore that a it nes peen commonly and tacitly assumed by orgunizetions and un jyVdicial procecdings, that appointments of officers. such a Presiderts, Vice Tresidaents, Secrecories ani Assistas+ e Secretaries and sometimes Organizers as members of a Committee of Management were not irregular. Accordingly that position might be accepted, were it nol that "the judicial mind" when, as ain Sherriff v. Townsend (supra) and in this case, 1s Girectly faced with the problem, "reaches a clear conviction that consistently with [the law] the validity thereof cannot be sustained." See R.v. Kirby and Others, Ex Parte Boilermakers Society of Australia (1957} 94 C.L.R.254 at 296, For the foregoing reasons I have reached such a conviction. It 1s for Pariiument to say in what cases elections shall be held. The holdirg cf elections is part of the process of full participation by members in Union affairs which, Rarliament has declared to be of great importance. If the provisions laid down by Fariiament are to be relaxed that is a matter for Parliament itself. General In the observations above, 1 have used terms which treat the Federal Council ag the Committre of Management of the Association. Tt may be that the Federal Evecutive conforms more to the cencept of a Committee of Managenenr. However, even if the Federal Council Le nev technically a Committee of Managemen. the substarce of the issue arising under the first guestion does not change, because it is certainly a punel wrich 16 cmprvered to determin: policy rd within the meaning of Regulation 115 (1) (d) (2)C. lt is to be noted that so far as it uses the expression "election of the holder of each office" s.133(1)(a) enacted in 1976 is in the same terms as s.133(1) (a) enacted in 3973 by s.52 of Act No. 138. ft is to be noted also, having reaard to the introduction of the definition of "direct voting system", the terminology of €.133(1) fa} of 1976 reflects precisely the terminology of &.133(1)} (a) of the Act of 1973 in respect of that expression. And 1t 1s of interest to note that the precursor ef s.133(1} as in force when the 1973 Act became law was s.70A of the Act introduced by s.9 of the Act No. 18 of 1951 in the followina form, narely, "TOA. - (1) In addition to the conditions referred to in sub-section (2) of the last preceding section, the conditions to be complied with by associations applying for registration as organi7- ations, and, Subject to this section, vy organizations, include a condition tnat the rules of the assocsation or oryaniz- ation relating to an election for an office in the association or ergainiz- ation or in a branch of the association or organization (being an office spec- ified in parégraon (a), (aa), or (bh) of the definition of "Office" mn cection four cf this Act) - (a) shall provide that the election shall] be by secret ballot; and (b} shall make provision for - (3) absent voting; Se en ee cap errr ary wee Ye rae Ota eee rrnemmtin mremamns meee oo ee 31. (ii) the manner in which persons may become candidates for election; (i2i) the appointnent, conduct and duties of returning officers; (iv) the conduct of the ballot; (v) the appointment, conduct and autics of scrutineers to represent the candidates at the ballot; and (vi) the declaration of the result of the ballot. and a condition that those rules shall be such e@&s wil] ensure as far as practicable, tnat neo trregular sty can occur in connexion with the eclectie (2) wae (3) ses * (4) eee (5) wee (6) wee" The change 1n 3973, which was maintained 1n 1976,*and py which the expression "rules relating to an election for an office in the organization", was changed to "the rules ... shall previde for the election of the holder of cach office", would seem to reflect the intention of Parliament that provisions for secret ballets and other aspects of conducting elections proviced for in 6.133 sheuld apply to clectiors for ail positions which were "offices" and now only to some of them. It was cenvenient therefore to use the urxpression "holder. of each office", Iie use terd:d also ca climinerve an, suacesticr> thet the secticn oaly apolited to electtore "s wee ee ee eee ee - ae - meee eee * ee re ee 32. . for those offices in respect of which the organizetion might decide to hold elections, und to avoid any suggestion that the imperative requirement of regulation ]15(])} (d) (i), might be qualified in some way. Regulation 115 Contemolates Elections for Positions rot Having regard to the feregoing 31 3S my conclusion that with respect to the various pusitions refeired to in regulation 115(1)(d) (1) rules must provide for the election of the holders thereof. Those positions are of two categories, first members of governing or managing bodies and secondly officers. There is a distinction between the two. Officers are persons with some degree of individual authority to take administrative action. Officers act individually He normally in an executive role. Members of governing or INMaNaging bodies act in conjunction with other members thercof, in the exercise of functions normally not of an executive nature. It would nol, I think, occur to wembers cf the Conmittee of Masagement that they were office.s cf tne orjani?vation. Certainly reyulation 215(1) (cdc) (i) eppears to assume tnet the mewhers cf a Committee of Manaqement are net efficers of tre orcanisition within tne moaning cf para. B therenf., And I tnink that this has beea a charicterirtic of cw 33. > the Act since 1610 o1 even since 1904. According to Scheduie B to the original Act it was a condition of registration of an Organization that its affairs were regqviated by rules providing, inter alia, for "the appointment and continuance of a Committce of Management, a Chairman or President and a Secretary". But by Act No. 7 of 1916 that Schedule was repealed and replaced by Schedule B requiring that the affairs of an organization be regulated by rule: providing for, inter alia, "a Committees of Management and Officers'. Ayain in regulation 5 of S.R. No. 331 of 1912 this sane terminology appears. 'A change in terminolooy and substance appeared in an amendment to Schedule B enacted by 5.58 of Act No. ye of 1928. Thereby the terms of Schedule B provided that the rules of Associations or Orqanirations shovld provide for, inter alia, "the clection of a Committee of Managenent of the organization and of its branches and of offices of the organization and of its branches under «u system of voting which makes adequate provision for 2bsent voting". The repetition of the word "of" emphasises that the rules are to provide for an rlerction fo. cach category of position, It is to be observed that for the first time election of a Committee of Management and of cefficercs was wade Coupaisory. &nd clearly by the furw of woray used it 15 to Fe seen thac what was sonrtempluted was that wrevisien World he made for the elertion of ail the person> Lo rold poe:tians whether @3s membere ef the Carpirtas at Yonggetent or é€3 offirers. Bi i youeh a vesther of cue Cuiitces of of ; 34. ba Management was not and is not regarded as an officer, ait is not ancompatible witn this rhat a member of the Committee of Management might be reda:ded as helding an office in the organization. And tne gituation that the member of the Committee of Management has an office but is not an officer is not, I thank, affected by the antroduction of the definition of "office" by para. (a) of s.4 of the Act Necessity for Elections In Fact By Regulation 115(1)(d) (31) at is provided that che affairs of an organization shall be reguiated by rules providing for "the powets and duties of committees and of officers", The guestion arises as to whether in relation to any officer identified by some particular title there are eny limits to the powers and duties that may be confeirec on or imposed upon him. Certain jJuimits may he imposed by s.140(]) (cj) of the Act. Bet within those limits one can megine wide ranging pow2"s and duties being allotred to, say, an officer des:gnated as President, Secretery, Treasurer or Trustee outside the powers and dutics normally associeted a with these of officers co uesignated. Tt is to bz tranumbered however that there may wel] we a difference between definirg tne powers and duties of an officer desidanated by a particuler titse and endowing him vith the juatibty of holding an office of quite 2 separatc narure. 35. So far as a'Secretary or Treasurer is concerned rules may purport to confer on those officers the office of member of the Committee of Management and the povers and duties appertaining thereto. Regulation 115(])(g) provides that rules "may also provide for any othe: matter not contrary to law". And there would appear to be no express law prescribing that persons on whom particulac functions hare been conferred shall be given any particular titie or titles, or that a person designated as an officer cf the crganization under some particular title shall have any particular set of functions. But it is eStentiai that in relation to the clections to be carrie@ out pursuant to rujes corplying with Regulation 115(1) (d){1) it siould appear to the electors in is) o a fs) respecr of each election, for what position jt is, th candidates are seeking their votes. And it would seem fron regulation 115(1)(d)(2) that for election purpose? 4 position may be epecified by reference to its title. Certainly s.4 assumes that certain offices are identifiable by tHeir titles. Thus tne offices of President, Secretary and Trustee are treatcd as being recognizable by their title wath sufficient precision for the purposes of the Act. But this can only be so if the powers, duties and functions allotted to the officers with those titles are such as are reasonanly within the normaliy anderstooa limits of the pavers, duties and the functions of officers' of orqenizations so titled, And this consideration must apply with respect to the conduct of an election fer «a particula: position o1 cfifice. . 36. If for instance, the rules of an organization allot to an officer entitled "Trustee" the functions nermally allotted to a Secretary, or if the functions allotted 56, rules to an officer described as "Secretary" inciude those normally performed by a Secretary and also service as a member of the Committee or Management, ther, so far as the conduct of the relevant elections of those offi G vr] Hh wa ra n concerned an election purporting to be an election for the position of Trustee would in fact be for the office of Seeretary, and an election purporting to be an election for Secretary would in fact be for the office both of Secretary and momber of the Committee of Management. It 1S an attractive view that members of unions are deemed to know the rules. Acting on this basis 1t can be argued that if the rules of an organization create a position or office and give it say the powers and duties ordinariiv associated with the name "Secretary", but give it the name "Organizer", and the rules go on to provide rhat there shall be an election for the position of Organizer, then the person electec under tire rive Organizer would in facr be the person who would perfurr the duties of Sceretary, gad would accede to the office and heave the duties and privileyves ordinarily r J Y these of a Secretary. But positions such as Praeidentk, uy ro Sectstary, VTrusevee and Olganizer. are tra7iticnal rositions © 37. and, broadly speaking, with traditional powers and duties. When a regulation deelitrg with elections of office holders was iuntroducecad in ats original form it required rules providing merely for an election of two classes of office hoiders, namcly members of the Committee of Management and officers. in its latest mcanifesration regulation 115(1) (2) (2) teguires that there shall be rules providing for the election for vartovs positions in the Union and it is to my mind necessarily impliec@ that it reguires rules which will provide for elections for positions recognisable by their names or by a description as one or more of the positions specified in paragraphs A, 8 and € of the regulation. From the point of view of purpose and of common sense it would hardty be thought desirable to authorise rules for holding the clection for an office by one name when in truth and Substance the election was for a different cffiece. Tt 2 17) @ifficult to think that when Parliament went to all the trouble to ensure thal there would be clections fer diffcrene offices end to enact that those elections would be carried out with great care to cnsure, inter alla, that there were no rneregularities, 3t would be contemplated that there could be an clection for an office under one name which was really for an entirely different office. It has to Le rece $.132 and s.133 of the Act are Geliberate sSteec towards achieving denocrecy in organirations, and what is perhaps more important, Ful) warticapation by the mempers in the My] Rr r, 7] te teed o cr arya byay "4 H- o would be uard to think of a stup 38. more likely to cau&%e confusion and frustrate full partici-~ pation of members than an election conducted apparently fox one office but in reality for another, or for a named office and another. In the jaght of the introduction of s.2if) of the Act which 'Ieclares full participation to be one of the chief objects of the Act, 1t is more than likely that Parljament would have anterdcd that the rules to Fe enacted under regulation 115(1} (a) (i), and in accordance with s.133 would provide for elections concerning which the Lversons concerned would actually understand the full impact of what was put before them, It 3s not difficult to achieve. s In the light of the subject matter namely, 'ful! participation by members, the fiction involved in a situation where knowledge 15 "deemed" to exist, is quite cut of place. Tt is ampportant that organjzations have membership in many cases well exceeding 100,000, with members distributed a1] over Australia, of whom many are transienr in their membership, persons of limited education and possibly literacy. Tt is quite unreal to act by reference to knowledge woich those menbers are deemed to have because they are deemed to have read the rules. In the ens tne situation rcmains thac an election 15 aun event complete In itself, that anu election for Ladera! 39. + Secretary or Branch President or Branch Secretary is not an election for mempershi, of the Federal Council, and chat what a knowledgeable mremher of the Association realiy Fnoxs is under the rules of that Aysocation the percons elected to the positions mentioned will accede to membership of Federal Council without being elected thereto. What the rules to be made pursvant to requiation 115(1) (Gd) (1) must provide for are elections tor the positions within the categories A, B and €C thereof which will be, in fact, elections for those positions. Whetner tne elections provided for by the rules will in fact be elections for these pesitions may be determined by reference to the terms used 2: the cénduct thereof. If the terms in which nominations are called and in which the contents of the ballot papers are expressed indicate with reasonable clarity the position for which nominations are called and for which the candidates are standing, then, with respect to those positions it would he appropriate to make a finding of fact that the successful candidates were elected to those positioys, and sren elections would carry the privileges and ertail the performance of the funclions reasonably understood to attach to those positions. In these ressens I have assumed tnst rules which proviao thet the same person is to hold more thin one o fic, and for the boldanzy of wner aay be Jeserived as a single v 40. ' election for the purpose of electing one person to more than one office, would be vcelié. But this may not be so. it is not clear that cuch rules would not infringe a right of any merber to stand for any position in the organization. It is possible that a cule the effect of which is that a irember can only stand for a particular position if he is willing also to stand for some other position or positions might be regarded aS an unreasonable fetter upon his right to stand for a particular cffice, and thus prejyudice his full participation in the affairs of the Union. If this be so rules which result in ne election being held at ali for various pesitions offend this principle much more seriously. . Th @ discussion in these rceasons concerning the validity eof an election for a position having a particulac name but which embraces some other and quite separate pocition, or a single election to choose one man for more than one office, does not require a final answer for "the purposes of the questions which have been asked by tho Registrar in this case. The rules of the Airline Hestesses' fo u Association do not provide for any such election. The relevance of the discussion is that it might be thought merely a technical exercise to declare the Association's rules anvalid if the care chjective could oe acrieved with respect say, 'to the positien of Secretary, hy defining his rs] ié) powers end duties cs the powers and duties of the position of mepher of the Tecen. |) Council and the Execevtrse. Hovever st . 41. is not a technicality because, if my view is correct, namely, that an election in such a situation could only proceed 1f the nature of the two offices involved were disclosed and the ballot papers meke the position clear, then those voting would kuow what »ositions or offices they were voting for and they might judae tne candidates accordingly. There has been an election in fact for the positions concerned. Having regard to the history of the statutory Provisions, including the statutory regulations from 18.6 a ouwards, there 15 a strong implication that the Act sagsumnes that the duties of officers with titles, "President" and "Secretary" in particular, and the other traditional titles of traditional executive officers, are those within the limits which these titles inply according to their ordinarily understoce connototion. Accordirgly a rule which provided for an election for an cffice witn specified duties, by a name which dia not reasonably indicate that the office concerned did relate to those duties, would not provide for an electica in respcct of that office, within the meaning of regulation 115(1) (d) (1). Special Position of Lresident The elections for Eederal President, Secretary and Vice President provided fo. an the ruler of the Aesociarien . 42. ace elections in which, by reason of allocation of powers and duties to those officers are elections in which the titles of the positions correspond with tne traditional functions of positions so entitled. But because of the very nature of the position of President an election conducted for that position requires special concideration. All nis duties and functions including Council and Federal Executive duties and his other functions are really aspects of the position of President falling within the ordinary concept of the duties and functions of a President of an organizacion. Of course in this case the duties and functions allocated to the President by the rules coincide with those ordinarily attributed to a President. According to the Oxford English Dictionary a President 1s one 'appointed or elected head of a temporary or permanent body of persens who presides et ctheir meetings and proceedings" Also he is "the heaa or chief of an advisory council or adninistrative board or department of government, for oxaemple The Lord President of the Council, The President of the Board of Agriculture, of Education or of Trade." in relation to a body Jike an organization registered under the Act, which 1s required by law to be governed by elected Comuittess ané¢ to engage in important transactions involving che proretion and adjustment of the interests of large bod:es of employers or onployors, the concept of the rignie, duties and functions of a President, cccording te ordinery Standards, ts iunevitably broad and of a wide range. 43. Apart altogether f:r''om a provision in the ruJes to that effect those functions would extend to presiding in Federal Council. From the terms used in schedule B, as enact2d in 3910, that seems to nave been a function contempleted at that stage. It would normally be understood that a presiding officer of a body would be a member thercof. And in relation to the Federal Executive, which is but the day to @Gay authority acting in lieu of the Council, it would I think, otdinarily be understcod that a person elected as Fresident of the organization would preside at and be a member of that Executive. There can be little doubt that if an ordinary member of the public were asked if he thought the President of the Melbourne Football Club was a member of the Conmittee the answer would be "yes". If he were asked whether he would expect the President of the Sydney Jockey Club Lo be a momber of 16S governing council er committec the answoar would aimost certainly be "of course". Tf he were asked whether he thought the President of the United States was a member of Congress the answer would probably be that he would have thought so, but he knows he is not", Merbership of the governing body of any institution by the President thereof is, I think, regarded as the normal state of affairs. To my mind the functions of the President arising under the rules cther then thvuse releting to his Council duties are all incidental] to his Preswadency cf the whole organization. Tr is from the nature of thet posiczion that Presidency and membership of the tvo main covecnine hodins procucds. een er ne ee ee -_-—- — — 44. Accordingly, when an elector considers the candidature of a nominee for Presidency of the organization he weuld understand the general scope of tne functions of the office. The election is therefore in form and substance calculated to ascertain the authentic will of the electorate on the question of the accession to the position. he actual attributes thereof by way of ordinary understanding of the nature of the position with the title of President are before the electors. For the President so to accede to the office of member of the Committee of Management by such an election 15 not nm conflict wath cegulation 115(1)(d)(i). That regulation requires that the rules provide for the election of a Committee of Management, namely of every member thereof. An election for President is an election for membership of the Committee of Management because it 1s an election for a position the very name of which, in relation to the orqan- uzation, cybraces and is understood to embrace, presiding membership of the Committee of Management and its Executive. That it embraces other things as well does not detract from that situation. Regulation J15(1)(d) (i) is satisfied so leny as every person who acquires the positicn of merber of the Cowmmittee cof Management acquices it by election in an election where that position is in form and substance, in Feet, tro subaect of ar election. Shen the election 13 for - 45. the Presidency it fs for a position, single in nature, but embracing, inter alia, membership cf the [Tederal Council and the Federal Executive as incidental theretce. The same considerations apply to the Vice Presidency. Jr may be a question whether when a President 15 so clected he has three offices or one. His -Special type of membership of Federal Council and Executive and his Presidency may all be "offices". It is my view that he has one position, that of President in which are incorporated presiding membership of the Federal Council and of the Federal Fxecutive. Each aspect of that position would qualify as an office within the definition in s.4 of tne Act. But that does not mean that three elections were necessary. Election to the Presidency was enough because 1t was, as a watter of fact, in form and substance, an election for the named position having the three aspects mentioned, Section 133(1}) (a) is satisfied by the conduct of that election in the manner proscribed by rules made under that section. As indicated above, if this be not the situation in respect of the Presidency, that state of affairs would have to be recognised. It would not b2 sound, on that account, to introduce modifications to the terms of regulation 115(1) (d) (i). Federal Secretary and Pranch Officials rt et of the ny Bul the situation ts very different in resp position of Secretary. According to the Oxford Enalish * Dictionary a Secletary is "one whose office is to write for another, especially one who is employed to conduct correspondence and keep records and (usuaily) to transact other business fo: another person or for a society, corporation or pudlic body". I think that the ordinary concept of the function of a Secretary 1S that he serves the comaittee of the body of which he is secretary. The rules of the Association reflect this view. Accordingly the election cf Sccretary was one which, according both to the rules and the ordinary concept of the function of the Secretary, was not an election for a position incorporating membership of the Committee of Manageaent. There 1S much to be said for the view that the concept of the office of Secretary of a Union of empioyees 15 that he is the senior executive officer of the Union. That view 1S also reflected in the rules of the Association, now before this Court. That is a very different position from that ef member of the Committee of Management. Accordingly a rule purporting to confer membership of the Committee of Manogemoent, ex officio, on a person elected as Secrelary 38 a rule whicn does not comply with che provisions of teguiarion 155(¢1) (d) (1). For sipilar reasons the provision ip the rules (rule 28) tnmat the President and Branco thal? be a tember of the Federal Cannel] by reason of their occrpancy of those pos.r er zens does ae ars Baie 4/. not so comply. the effect of the provision is to czreate positions of membership of the Federal Council and to provide that they shall be filled otherwise than by election therefor, Thus with respect to those positions of membersnip of the Federal Council the rules fail to comply with che requirements of regulation 1i5(1) {(d) (2). To my mina the words of regulation 135(]) (d) (2) which require that the atfairs of an organization shali be regulated by rules providing for the election of = Commrictec of Management and of each branch of the Association are unambiguous and imperative, and that, at this stage, the regulation is in full force and effect. It is equally clear that the rules of the Association wnich provide for the election of only a section of the membors of its Committee of Management, and purport to confer membership of that Committee without election thereto, not only on the Federal Secretary, but also on Branch Presidents and Secretaries Faii to comply with the provisions of s.132 of the Act as implemented by regulation 115(]) (d) (i). Having regard to tne foregoing, (1} Question ore asked by the Registrar, namely, "Do the rules set out above provide for tue (2) 48. election+of the holder of cach office (as defined in section 4) within the organization as required by section 133(1) (a) and regulation 115(1) (da) (i) ?" should be answered "No". Question 2(a), namely, "Do rules 27 and 41 contravene section 113 (1% (a) and regulation 115(1)(d) (i) in so far as those rules appear to provide that persons elected to be Federal Officers shal], without any further election, aiso be members of the Federal Council and Federal Executive?" should be answered "Yes". Cuestion ?7(b), namely, "Does rule 27 contravene section 133(1) (a) po) and regulation 115(1) (dad) (1) in so far as that rule wsppears to provide tnat persons elected co be Pranch President and Scanch Secretar, shall, withont any further election, also be members of the Federal me ete D4 Ane = wom SAP tee ee are one fe re Te emprrenet Sy FE * (3) > 49. t Council?* should be answered "Yes". Question 2(c), namely, "Does rule 4] contravene section 133{1) (a) and regulation 115(1) (4) (i) in so far as that rule appears to provide that a person elected to be Branch President shall, without any further eleccion, also be a member of the Federal Executive?" should be answered "Yes". Question (3), namely, "Do the said rules satisfy the relevant requitcments of paragraphs (a) and (c) of section 140(1)?" should be answered "No". Sneha y ? \ ™ Ce oe ha \ / ' ' beat fas ¥ <t i- et ee re ee ee 2 ee ee ee ee al OR TRL ANT OYE eT ue ) ) NEW SQUTH WALES DISTRICT REGISTRY }) No. 19 of 19390 ) ) IN THE DUDES. Comp OF AUSTRALE" ~ ~ Po Welt ATeL PEVLSTON ion eae LTS or the Conczlwatzun rné Gt Net, L904 Tet Arbitra . ASSOC. an erganizarion of ennloye ~ YeGinte under the sad Act SND TT OUITE TAYTOR of a reference ky the Industrial, Reg istray pucsuunt to §s,]12 of the said *ct of caestions, of law for the opinion of te Federél court cf Australza CORAM: Bowen C.J. Smithers Jf. J.B. Sweency J. Evatt J. Yorthrop J. 1 Oetober, Lato REASOKE FOR JUDEMINT x 7 ~ a « JR. SRPUNEY G Thos ws a reference by the Irtustrial NeGrvrceyvcor of certain gqvestions cf Jaw. The gucs ct application by the Aliriine Hoste Assowlation") fer certification of a nev ser of rules pur suen Msiration Ace, 1994 ("che ct 3° na I w 1D ae ie) th ot DyQ O UD iv]i B ow ct PpPa) pa] Qu ou " "sy! The parlacalar propesed rales in question are szules 27, 5S(a) which read: aSy In . ad ony 27. 41. 55. 2. FODDRAL COUNCIL COMPOSITION The Federal Counc:1 shall be composed of: fa) *the Feaeral Officers who shall be the Federal President, the vedseral vice~ President and the Pedcral Secretary. (b) Branch delegates whe shzll be the President and Secretary of cach Branch. (c) additional delegate ar ad branch er branches on the' f basis:- Branch Membership Representative 200 - 399 1 400 - 539 2 600 and over 3 COMPOSITION OF FEDFRAL EXECUTIVE The Federal Executive shail consist of th following: ie) (2) Federal President (ii) Federal Vice-President (iil) Federal Secretary (iv) the occupier for the time being of the position of Brancn President of each Branch or her proxy. ELLCCTION OF FEDERAL OFFICERS - GONE? (a) Elections for the positicn of Pederal President, Federal YVice-Presidcent and Federal Secretary shail be conducted - by secret postal ballet of all finan- cial members of the Associaticn eligible to vote, im accordance w2ih these rules. There are also proposed branch rules which raise the questions. (1) The particular questions referred to are: Do the rules set out above provide for the election of the holder of each office (as defined in section 4) withan the scrganizatien as reaguizred by section 133(1)(a) and reaulation 115(1)(d)(12)? In particular: 3. (a) Do rules 27 and 41 contravene section 133(1)(a) and regulation 115(1)(d) (1) ain so far as those rules gppear to sPprovide that persons elected to be Federal officers shall, without any further election, also be wembers of the Federal Council and Federal Bxecutive? (b) Does rule 27 contravene sect and reguiation 125(1)(d)(z)} as that rule appears to prov persons clected to he Branch and Rranch Secretary shall, further election, alse be mem Federal Council? n ae) -GUoad Oo < tr (c) Does rule 41 contravene section 133(1)( aud regslation 1L1i5(1)(@)fs} an so far as that xule appears to provide That a person elected to be Branch PresiGen £ nal. a2th- out any further election, also pé a member of the Federal Executive? Ww ( ) Do the said rules satisfy the relevant re of paragraphs (a) and (ec) of section 140(1)2- I The scheme of the Act provides for the registration of organizations which.thereupon become corpcrations. By their very nature corporations must have some officers and some controlling body or bodies. The act in s.132 requires organizations to have rules which comply with the requirements of reg. 115. In sddition there are various other provisions in the €tatute preseribin in sone cases what must be, in other cases what may not » providee for in the rules structure wh fe a, a) ch < x pe @ a © o concerned. This perhaps + vast disparities and d2f cevered and other natters between organizations. we ee eo ee de nk ie a Rt A ete ane hem arm 4, At the hearing before us the Australian Council of > Unions seught and was given Leave to appcar by t constituent bodies. We wore advised that the great mayority cf organizations had rules wnich provided, as did rules of the Association, for persons elected to particular office to be memvers of the committee of managerent and of other ¢ . OLGanization. The pari ouncils cr conferences of t1 = ty ular examples varied, but the general pattern appeared to be that a committes of management would comprise ons clected as general. c socretary, ganeral precident and the I1ke and a number of delegates From the braiches. Mutatzs matandis simi provisions exist for branches. Some other organizations appcatea end we also had the benefit of submissions made by coanse! for the 4%ctoLrney-General iv) w of Australia appearing amicus urize. The hearing of the reference was ii {9 ted before a bench of 5 judges in view of rhe importance of the issue a * It is convenient next to set out tne structure of the Association and to examine the proposed rules against that backg fot The Assoctation 3s an organization arranged in branches. It has memb-+s and branches throughout the vonmonwealth. Ff required Ly 5.13? and reg. 1148 w. ct La iad rw wD ta if certified will provide for a comnz.iee of management cf tne AssoCclation and each branch, fo. offacerge of the Assec ation umd of each branch and ter a ceunntl nel wc the commit hee os ore Pe TOF RAT Ah TF Kage DT, «PRR Pian etin eae Y nt acento Pa) management, empowered to determine policy and exercise functions of nanagement. The federal cificels are the federal + : sas . 5 secretary, federal presicent and the federal vice-presid (Th nt. that she is to attend ali meetings of federal counc-1] and federal exyocutive and she has cther duties in respect to them. She also has dutics with respect to property of the Association ancluding a duty to deliver up te the federal president on vacating office, or when so directed, all booxs, documents, papers and other property or the federation. 'The rules alse prescribe thet she is to receive monies payable to the federal council (rules 26, 18, 17, 15, 14, 9%). The duties of the federal president include presiding at meetings of the federal council and federal executive and preserving order and other consequential duties (rule 24). Rule 25 provides that the federal v Pp he ce~president shail preside at meetings in the absence of the federal presider, vhether for the whole or part of a meeting and that she shall assist the federal president un the conduct of and preserving order at meetings. The rules provide for a federal executive which 1s to be the committee of manacement of the Assocration (rule 40). It is to have the care, control, superintendence, management and administration of the affairs and orepertry of the Association. Jt 1s to imterpret and enforce the generel palic, cf the Association as Gec.ded by federei council ano decide Ne ee 6. questions of policy not covered by fedcral council decisions. The federal executive 1s to consist of the federal presiaenk, . federal vice-president, federal secretary and the occupier for the time being of the position of branch president of each branch (rule 41). The rules also provide for a federal council. It is to consist of the federal president, the federal secretary, ani the federal vice-president, the president and sccretary of each branch and an additional deleyate or delegaces from a branch, (the number depending on the membership of cach branch). y The federal council meets annually, is the rule makin body (rule 70 and 21(b)), has managerial Functions (rale 2i(a) and rule 20) and is a policy making body. The federal officers are elected by secret postal ballot of all financial members (rule 55), as are the branch officers Py by branch members. : Each branch has a branch president, branch vice-president and a branch secretary, all of whom are elected »Sy secret postal ballot of the branch members. Tn addition there are branch councillors the number of whom 1s to be determined by the branch, but will be at least 4 ana not more than 17. They too are elected Fy secret postal ballot by members ci the branch. The branch delegates to federal council additional to the president and secretary are elected by secret postal balist of the branch members. The brancn council has pover FO} ' mane oe 7. anter alia, to control, superintend and manage the affairs CL a branch (branch rule 3). t The branch secretary's duties prescribed are that she is to attend all general and council meetings of the brunch and she has Guties in respect to monies received by her and cther roperty.' of the branch. The »ranch president's duties prescribed are that she shail preside over all general and council meetings of the branch and preserve orcer and give her a deliberative vote and if necessary a casting vote at any mecting (branch rule 4). The branch vice-president, in the absence of the branch president, 1s to preside over all meetings of the branch with full powers of the branch president (brarch rule 5). It 1s clear then that the federal president, federal vice- pres:dent and federal secretary and like officers of a brunch all hold office within the meaning of par.(aa} of the Gefinition of "office". In addition, tne federal officers hold office within the meaning of par.(a) of the definition as membezs of the committee of management of the orgauization. The branch officers hold office within the meaning of chose paragraphs of the defination. In addition, the federe? secretary and branch secretary are persons holding, whevher as trustee or otherwise, property of the organization cr branch and nold office within the meaning of par. {b) of the delinition. 8. It is clear from the rules that che federal executive is a committee of management within the dcfanation of "cormitter ® - = 4 + hu s.4 of the Act. In addition the federai . council is, ander the rules of the organization, cimpowered to bre make, alter or rescind rules, to enforce rules and t+ exercise any of the functions of management. So too is the branch Merxe:ship of each of these bodies then makes the nerson concerned an cfficer or the holder of an cffice within the meaning of par. (c}) of the definition 14 s.4 of the Act. each of these offices 1s one within the orgapizatiacn or branch for the filting of which ar election is required to ne condasted within the organization or beanct, each such person is an officer "thin the meaning of par. (a) of the definition of office. The reference made by the Industrial Registrar raises the question whether the amendments sougrt may offend against s.140(1) of the Act in that they may be contrary to or faal to make a prevision required by s.133(1)(a) or reg. 115{1},.da) ef the Act. In considering the yvestions referred to it is necessary Fh to Look at the history of amendments to this so frecuentl te amenced statute. Secticn 132 provides that the conditicas to &: cowplicd fan io he oD mt Q ay eya ty 'et \r with by assocaacirons seeking roygistracizen an 9. Regulation 115{1)(d) has at all material times prescribed for each: fairs of an 2zssociation mist be es providing for - (12) the election of ~ (A) a comrittee of management of the association and of each branch of the association; (B) officers of the association and of each branch of the association; an Cis on (Cc) any conference, council, panel or other body (additional to the committee of management), which is empowerea to determine policy or to exercise furctions of management in the associaticn or branch: In considering both the regulation and the relevant sections it 1s necessary to have regard to the definition of "office". This was first inserted in s.4 of the Act by Act No. 28 of 1949 in the follow2zng terms: "loffice', in relation to an organization or brancn of an organization means - - (a) (dD) (c) Act No. 18 of 1951 added sub-section (aa) to the Geéfinzti1an the office of a member of the committee of management of the organization or branch; the office of a person hclding, whether as trustee or otherwise, property of the organization or branch, or property in which the organization or branch has any beneficial interest; and every office within the organization or branch for the filling of which an election is conducted within the organization or branch:;". of "Office": "(aa) the offace cf pv secretary, @XCCUTLVE eallea, of This Act "(e) also antrod@uceda 5.7028, the forerunner of 5.133 e c. 138 of 1 10. iSe) 73 omitted sub-paragraph (c) Irom ticn of "Office" and substituted the following the office of a member of any conference, council, committee, panel or other body within the organization or branch, which under the rules of the organization or of the branch is empowercd to mehe, alter ox rescind rules or to enforce, or perform functions in relation to the enioxrcoment o reles or to exercise any of the function management ; ' r a rial Oth every oftice within the organization cr brinch for the falling of whieh an election i required to be conducted within whe ergeni oer branch and any positicn within the organ ation or branch involving dutzes substant2 i2Cs ort sirilar to the duties of such an orfice; a in the case of an organiza 1 ered immediately before th of commence- ment cf this paragraph or ranch of such an organization, every office within the organz7 ation or branch fer the filling of which under rules in force immediately hefore that date, an election was required to ve conducted within the orgenization cr branch and any position within the organization or branch unvolving dutzes substantially similar to the' duties of such an office;";: This Ack also amended s.135. "(a) No. 117 of 1976 omitted pars. (d) and fe) frem the cf "Office" and substituted a new parc. [da), every office 4 1thi for the filleng reguired tc } ation ox brarahie'? 1i. This Act alse amended 5.133. In additidn to the definition of "Office" 1t is helpful Y) (Q HES tc consider the history ¢f the present 5.133. Its SfSOr WS was inserted in the Act as s.70A by Act No. 18 of 1951. It previced that sn addition to the conditions referred to in s.70 (noW s.132), the conditions to be complied with by associations seeking registration and by organizations include a condition thet the rules relating to an election specified an par. (a), (aa) or (b) of the definition of "Office" shovld provide thet the election to an office be by secret ballot. It Jeft open the guestion of the provisions to be made for an election coming within per. (c) of the definition. The yord 'each" was not used. In 1973 the section, by then renumbered 5.133, was further amended. As already set owt, the definition of "Office" was materially altered by the same Act No. 138 of 1973 and one paragraph: substituted and two new ones addec tc it. Section 133 as amended prescribed that the conditions to be complied with by associations seeking registration anda by organizations should include a condition that the rules sheuld provide for the election of the holdey of each office by secret bellot of all members eligible te vote. It also Up) provided an s.s. (1A) for cases where the rujes of an organization provided for the filling of an office "being an office the holder of which 1s a member of the commirtee of uties of which are pari-time". re)wy Ne}4 0} Hd cr y G pe 13) Q 12. In 1976 the section was again amended by Act No. (4 of 1976. 'his amendment inserted a new par. (])(@a) which t provided that in the case of an association applyany for i) registration after the commencement of the sib-section, the rules must provide that every electicn for an office cf a kind referred to in par. (a), (aas, (b) or (c) should be by posial ballot. New s.13342 was also ianserted, providing thet elections to offices within' pars. (aa), (b&b) or (c) cf the deétiniriion of office 1n s.s.(1) of s.4 should be by secret postal ballot, Py Act No. 117 of 1976 thore were inserted new definitions of collegiate electore] system and direct vot rs) n¢ system. There was also inserted an amendment of the definicion of "Office" De and a new sub-clause 5 was inscrted in s.4,. . This sub-clause made provisions relating to the definition of collegizte electoral systom, but referred "0 persons comprisinc a body of persons by and from whom persons are elected to an office and refer~ed to persons who are holders of of entitling the holders to membership of that body. ' Section 133 was amended to requize that the rules of an association applying for registration and an organization should provide for the élection of the holder of each offr i?) GC by secret ballot of mempers or by a type of ccllegiate + a i ct c =} tn It also omitted e.s.(1A) of s.123. The questicns asked by the Reyzstzrar appear to have teen occasioned by the yudgment of this Court in Shers:ft v. Townsend, Oo, In chet case a particular proocsed curv (Q of 3 Apri) i¢ ae oe 13. providing that secretarzes or branches and the federal assistant federal secretary should be membeis of the f f council was considered. All members of the Dench hald the rule was invalid in that it provided for equal ren ation of branches with very great diffcrences in membe a Smithers J. then proceeded to deal with another a on that rele. Ne said: "The effect of the provisions of rul and (iv) that the Branch Secretaries ar invested with an additional office, namely that o member of the Committee of Management numelv, "he Pederal Council. the office taken by the person and ederal Tenn. ttack concerned can be filled only by chat person. Never- theless the office that he takes 1s in all respec that of a member of the Committee of Management. ut 1s clear that the rules do not provide for vha holding of an election of the person concerned t office. They only operate to fill the office of member of the Committee of Management when some person has been elected to another specified offi In effect the rules provide that the persone elec to the designated executive offices shall accede the office of member of Federal] Council] without election thereto. The effect of the rule in ques 1s to create a position on the council that is ts And ce. tea is co tion essentially an office and to prescribe that it will be filled without an election by 'a nominated pers It is not too much to say that the rule does the on. vory thing which the statute and reguiacions are desiqnen to avoid, namely the accession to any particular elective office by some means other than by elect Evatt J. without deciding the issue, expressec a in agreement with the reasons for judgment of Smithers while Northrop 7. was of the view that the second arog attack on that rule was net made out. non." view + us nd of Reilermakers' Society of Australia, 94 CLL.R. 254 at 29 Z me La 14, The present macter hes been much more fully argued before us and while I nave given full and careful consideration to ' : t - * the judgment of Smithers J., on the pozrnt I find mysell unable to agree with it. I turn first to reg. LL5 and the question 2s whether that atc ~ ~ 3 regulation" sét our earijer 21. thie judgment, requires separate elections in the memner 1 have set oat later. The regulation hes been in its present form for a very consicerzble tire, There Lave been many lustances of registered rules beand considered by the Conciliation end Arbitration Court, the Conmonwealth Industrial Court and this Court where such rules provided that persons electea te an office such as feariai secretary should, by virtue of holding that office be a member of the committee of management and other bodies. Instances where the question was litigated before the Commonwealth Industrial Court are Crealy v. Commonwealth Bank Officezs'! Association, 1 P.L.R. 153; Mackenzie v. Administrative and Clerical oOffacers' Association, Cormonwealth 5 FVL.R. 342; Male two instances of its Litigation ir this Court are Eqan v. Maher, 35 F.L.R. 197° MclIe1sh «. Kane, 36 F.L.R. 9. While it is true that the specific point pov raised as net texen in any of these cases, ] do not think I should Slew a) ignore this history. As was saig by the Migh Court of Australia in "he Gueen v. Kirby and Others: Ux varte i . ne en len ee eet lo. "Such matters as Judicial dicta, cemmon a LSSUMPtIO.S tacitly, made and acted upom, and tlhe fact that legislation has pass2c unchelienyed cor a cons:d- erable pariod cf tire, nay be recarded as raising a presutTption waach should prevail until the juaic1iai mand reaches a clear conviction that consistenvly with whe Constitution the valyidit, ef the provisions impugned cenner be sustair But they cannot ve regardza as (G21 — ng mnore." A like presumption should in mv view operate 'hen conside rules and ther.r val dity. They are guestzons which have been litigated. In one other case Bicknell v. Amaicama*ed an Unicn, 15 P.i.R. 215, the matter was more dirzctrly deai a Questions were argued as to the validity of that organization. These rules were described "The rules as amended on lst OGctec i the office of State secretary, the hol 1s a menber of State conrerence and Sta He is the executive officer cf these b "There is no express provis.on in the rul the State secretary is a full-time offic seems clear tnaz he must be. Rule 29/2) that he shall for all purposes be the main and administrative efficerc of the union in t He is entitled to attend and speak at any m S any branch and at any meeting af members in the Sta but shall have the power to move ard second movitocs an@ to cast a vote only at meetings of has own bran at the State conterence and at meetings of State council. This rule clearly contemplated thac he wi be a member of State conference and Stats council, As secretary he is given a wide runge of duties." ru r The Court said of the then reg. 115(1)(a "Reculatizon LiS(is(d) does not in terms state that the ru shall provide that ever: office gral oir all carsuastances le Falicu ty election. Accord- ingly @ rule provicine [cr en appointment in ri EndLNeev in 2OTl hag 16. special circumstances does not inevitably comctravene the literal regiulrements cf rec. 115(1)(d). Where there 1s such a rule the question is whether not- withst2nrdgng 1lts presence it can be sa1d of the orgznization that ats affairs are reazlated by rules whicn, looked at in their entirety, provide for tre election of the specified bodite and officers. It added that the question was whethe1 the rules lockea > at 4S a whele may, fairly be said to previde for the elect2an 9) My, cr @ (9 Ms) a fe] p it p @M Ou iv] emmittee and officers. I agree with this If the regulation is so interpreted 2n the manner I have andicated, the rules as proposed will provide beyond any dcubt for election to particular offices, such as that of secretary, etc., and wilki also previde for the election of such of them as fall within par.(da) of the regulation. The rules will clso provide for a committee of management consisting cf those persons clected directly to at and persons elected to offi fe) ? s to which the rules attach powers and duties such as menbership of the committee of management, the holding of property with2:, the meaning of par.(b) of the definition and the membersnip of the bodies set out in par.(cj) and (da) of the defaniticr of "office" sce far as the rules of the organization make provision for those bodies. Tne whole of the rules then seer to me to provide for the election of a committee of management and of offiecres and of conferences, etc. within the meaning of reg.115. In my view it cannot be sard that the new rules vould not vertore ' provide as as required by creg-115 and they are new th I an dasconfority with svi 17. Once it 1s accepted that the Act intends the organization to choose its own structure, subject to requirements spelt ouc t in the Act and regulations, and once 1t is accepted that members Lave easy access to the rules of the organization, 10 Zz seems to me fair to assume that at times of election they will i ct fa = be < know the consequences of voting for a particular cenaidate Sox particular office. Section 128 of the act provides taat a member inist be supplied with a copy cf the rules on demand and payment of a small fee. They will kno then that if they cast @ vote which resulte in the election of a particular candidate to the office cf general secretary the rules provide that she will aiso be a member of cortain bodies. There have been many cases involving in one way or another union elections. Having regard to the nature of the u offices of federal president and 5s @ cretary and branch secretary and president, and the fact that union eleccions are contested by groups of individuals rather than a lone individual, this assumption is in my view the real position within unicns: I do not regard it as at all unreal] to make such an assumptior and I do not regard such a provision as so a4 ia om bP eh pe. a js ia) be ct ie) Q ie) fo fr i) it te be looked at with suspicion, It has Leen suggested that where there was such ea provision voters! a cnsidezations were not free since they might well consider ary particular candidate a good edministraroer Dut not a good policy man or the reverse. The same objection maght weil be voiced 1n considering voters in a qeneral H election casting @e vote, They may consider a candidate 18. suitable if the party he supportcd were in opposition bur now in gevernment. or they may consider the reverse. Nonetneles ¢ they vote and ure wbliged to do so and make the best of an U7) imperfect world. in my view the word "election", is used to aescribe a means whereby these various a . * used iain distinction to the word "a reqvired the rules to provide for the appourtment sf u ewe en or committee of managenent and officer In #69 doing it followed the language of the various Trade Union Acts then ?n existence in the various States. It was not until 292F when Se Act was amenced to afford more powers cf supervision cf trade untsne that the requirement to hold elections anpeared. By th samt amending Act No. 18 of 19265 the precursors of the presant ss.140 and 141 were added. In my view the rules coriply w2tn the requirements of reg.115(1){d) and do require an election in the sense of a choice by the members as opposed to an appointment. I turn next to 5.133. It was submitted in dealiang with this section that s.133(1)(a}) by the use ci the phrese "the hoider of each office" required that the commictee of management of management by virtue of uw pu wy w ~ bs — ~ fy ~~ ty ied ed nd the us- of the word "every" slsawnere i: the rule emrhesise that each ofrice referrea to 1s necessar2ly to ao be taken seperately and in 19. some ambiguity. I have therefore taken irto account che history of the sectton. t Prior te tne amendment brought about ny Act No. 132 of 3e 1973 there seems to me no possi fed B rt - a that che section could have been so censtrued as to require sepsraie elections. The amendment altered the previous provisions which had applied only to offices in pars.(@), {aa) and (b) of the definition by making them apply te all the otfaces in the definition. Tl did this by using the phrase 'that the rules shouid provide for the electicn of the holder of each office". JJowever, at the some time 1t xrdded te the section, s.s.(1lA) whach referred to whe dy filling cf an office beino an office the hol t c19) fy (e) = *) i 10) member of the committee of management. It seems to me that the sub-section clearly contemplated a position where the holder of an office 2s a member of the committee of management by virtue of his holding of that effice. The word "each" I think, meant no more than "every'. Its use was to emphasise that the provisions applted not to some only of the offices within the definition or office c provided for in the rules of the organization but applied to = 77 aise The next amendment was in 1976, Act No. 64 of 1976 anserces en new per. i) (da) whach vrovided that, 11 the case oF an 2a mM ccist ie) is oO applying fos registration the Lhat every election for offices within 4 oF the definition a should be conducted by postal "oach" and if the word "each" had the effect cf reqcuizany a separate olecragon ror vacl oi faites, ncult to see why different provision ite made for Yas fe] associations applying for reqistratic t= enacted in 13760. The general scheme of the Act has ways been to apply the same requirements to applicants for legistratien as to registered bodies and 1t 1s improbable that daffesrcnt provisions would be provided for an association if immedra'ely upon registration a change would be required in the ruics. on the Association would be @n organization and > rhnm ny tas res) Q Pr io) ct im tL + i required to have rules complying with s.133(1). wiil be such porsons who are menbers of such a college who ro, will Le menbers by virtue of the holding of some other office. Such a college may in some circumstances be tne committee of management, in others it may be a committee which fajJls witnin par.(c) cf the definition of "office" in s.4 of the act. It seens unlikely that a body would be set up parely for the purpose of an electron meeting at considerable cost to a federal organization to perform one function only. It was submitted to us that to regard the section as requixing a separate eLlec"ion for cach office prescribed hy the ru.es of the anization and falling within the paragraphs QO g of the definition world Jead to an ebsurd or incor venient resulic. 'ihis Y think 1s so ard such a reastitt 12 Tc be avoided urless the language 1s antracrable. Tos 1ilustiate the poasitic 21. an the case of this association, 2 mM 1t 1s necessary ander the section Lo require a s*parate electron in respect of each office Fi then regard must be had to the overlapping nature of the paragraphs in the definition. In the case cf this association, pars.(a),(aa),),(c)j and (@) atl appsar to overlap and in the case of the federal secretary and federal president it vould be necessary for hex to be elected in separate elections though perhaps ccnducted at the same time as: 1. federal secretary; (par. (aa)) 2. amember of the federal executive; ({(pars.{a) and (c)) 3. a member of the federal council; (pars.(a) ane (c)) 4. a person holding property under par.(b) of tre defination. I leave out of considerarion the question of the overlaps with par.(d). Like considerations apply to the fedoral president and to the federal vice-presidenr, as they do to ct a io ro ) a yy un re) a al etary, branch presicgent and branch vice- president. In some organizations there are separate rule making bedies and in a few separate bodies exercising disciplinary powers and in those cases the position would be aggravated and the nuaber of separate clectrons increased considerably. For the reescns T have indicated T am of the view that the lanquace 1s not intrattabie but that it is consistent with the cormonsense result whack fiows from the e-doption of the present a res te eee el ee ate kn eevee ee se a owe be arene practice. 22. In my view then, 5.133 of the Act properl.i con does not make provisions with whach these rules would roc conform. than to emphasise that chere is no exclusion of offices t I regard the word "each", as defined, to do no more 4S defined or any of tham. In my view then, the questions asked shoulc be ansiered as follows: l. Yes. 2. (a) No. (b) No fc) No. 3. Cuestion 3 should, in my view, be answered follows: Tated PST PLT NeEND Verret Nn Ol mis honour ustic? s.ceney. sce far as the requirements of par. (a) of s.140(1) are concerned, ye ta So far as the requirements of s.140{l)(c) 4 concerned, no matcrial appears before t a ts i) Court which would support a view that the proposed rules would offend against s.140(1)(<c) but final consideration of thig may depend uno: wor an examination of the history of other matt2rs ey peculiar to the Association. a 2fv tnat this and the . or ts Marr ouetes ere & trys cany of the or SUSTNALIA Mo. L9 of 1980 =z iso] = fa : 0) = > ct be] a 'a rae) i€p) la] ee) H Qa H aw ty Q H w y esi a LIDUSTRIETL, DIVE TH Tim NATTOR of an alieration of EL Rules of the Airline Ho.utesses Aggocialion an oxrgaizzation of eS employees reaistered under the Conciisatisn and Arbitration Act, 1& REDERENCH BY Tree INDUsT LAL ROGISERA (pursaant to Seccicn 112 cf the Conciliatrwon and Arbitration Act, 1° 7 of questions of Jay tox tha cpanion of the 2 Court of Australia. ° REASONS FOR JU)2 RVATT J. 1 October LIED made "parsuant to s.L12 of the Concilraraon and Arkicralien Act, 1994 {the Act) raises questions of law for doturim cna un yr@elatycn ts certulin rale ameniments ¢dopted by the Airline Hostesseas!' 2sgoc 1tat.on an Orguniaz.ztion registered under the Ac Basucaly the questions for determination are; du sich rule amendments satieLly tne requirements of e.l4u{1l) (a) and s.1i9(1) (2) a. to ne Federet Ulrieces shall vithovt any Dvther electia of the Pedorai Goavetl and Pesgoral Execabive, (2) that persone elected os hicmea soesreen. and Bra hh Seceet ar shall woeteus Flrtber etecler: 2e@ we woe: fo the g@otrre] 8 wane? and (4) teat alrecns ofeot) dG a graach bs] ent Ga Cs pet ane furch or oe) we a Pl em Rh eee eh The vote oi Tule tn DP. a bende Pe ee a ene such rules provade for the clection of the holdur of each offace (as defined 1n s.¢ of the Acl) within the crganization a reguired by s.133(1)(2) of the Act and R-g. 115(1) (da) (2) made thereunder. Tne partacular rules are fully set cut in the reasons for Judgment of Sweeney J., which I Rkave had tne a@vantage of reading. Further, relevant sections of the Act are set out in the reasons for judgment of Bowen C.J. which 1 huve also had the advantage of reading. . -In Sherriff & Ors. v. Townsend & Ore. (V. No.1? of 197 {interc alis) 30 A.LLR. 223 a challenge was madc/to the certified rule prov_d.ng for the composition of the Federal Council of the Vehic]l® En:lders' Employees Pederation of Australia an organization regiscered inder the Act. Rule l(b) of the rules of that organization providcd: "1(b) The Federal Council shell consist of : (1) Two delegates f:om each Branch clected as preszersb in Rule 4 neither of wnon shall be the Secoetary ef such Branch. (12) The Secretary for the time being of each Erancin of the Federation; (121) Tne Federal Secretary of the Federation; (av) The Assistant Federal Secretary of the Pederation." The claimunts! challenge to the rule was, for relevant discussicn, two-pronged; farst, that sab-rule 1(b)(2) created an invalid ambalance in the number of del«jatcs to Federal Council from jranches, the memberenip vf which varied from Pranch to accordingly contravencd $.149(1) (cj the Act (sre Me t Cots 7 ALLL. b-t7) and scoudiy, taavu cul-rale l(b} (a1) permitied @ Brorer Sceretary sat lhoucaa rel re @lected to that office, to be a member of the Fedora without herng elected a Councillor as reqiired by 3 and/or Reg.115(1})(d)(1) and aecordingly contravened s. 14911) (a) The Ccurt in that case unanimeusly held that, in eccordance with the principles referred to in McLeish v. Kane(s the whole of r.1(b) providing for the constitution of tlac Federal Council was contrary to s.140(1)(c) for the reasons therein express in respect of the orders sought in paras. 4, 5 and 6 of cne rule to show cause. : In Sherriff v. To..nsend (supra) I stated @ p.246:- "Paragraphs 9, 10 and 11 (of the rule to show cause) seck orders that r.l(b)(12) contravencs ».14C(1) (a) of the Act an that such sub-rule providos that the secretaries of the various branches of the organization shall be members of its Federal Council without any of such secretaries keing elected within the meaning of the Act and Regulaticns thereunder, to held the office of a Federel Councillor. I have alraady expressed the view that r.l(o) (11) 15 contrci1y Lo s.14d0(1){c) us boing vontrary to the pronsintes cet out in Mcivish v, Ren2(supra) if r. L(b) ( ) 1s struck o.t, but having regard to the proposed schene approved Ly the court under -1?7iD of Ehe Act, and as groiands %, LO and 1? wre Fully argued the court's view thnearcon should be stated. YT am of the view that such s "Ule 1s conhrary to ».119(1)(a) and agioe with the reascor 2 judqresnt on this regard ct Smithers J." The questions sect out in the present reference raised an wore detail the 1s a 128 raised in paragrapns 9, «. and 22 of the rule to show cause in Shesviff ve Townsend (:uprya). Ha icy hed the Lenefit sf the detarled submis 3.9ns concerning the hi of the relevant sactims of Wie Act, Yenredule Band th. Ueyalu cs) made under the Acc togithe: wath further argume: b thereon upra} red une res Se eens Penney clear ain ret.ospect, that the issues raised in the sald parés. 9, 10 , and ll an this regard hed not been fully argued other than by the clairuants therain. Those clamments, through their legal advisor, were given an opportunity to further argue the assue before this Court ut such opportunity was apparently aeclaired by them as they mude no request fo: leave to intervene herein. The submissions and arguments of Coun»el in this reference have persuaded me that the dicta cxpressed by ir> in Sherriff v. Townsend (supra) that rule I(9)(11) of the rules of the Vehicle Bu1lvers' Employees Federation of Australia did not accord with the provisions of s.133(1)(a) and/or Reg.115{1)(d)}(2) and consequently contravened 5.140(L)(a) of the Act is incorzacl. I entirely agree with the reasons for judgment of Bowen C.J. and Sweoney 5. herein. I further agree that the answers to th2 questions asked by the Registrar should be in accordance with these set out in the reesons ter judgment of Bowen C.J. = pee ote woot fre'! ! ~ oo oa ee ~ nour | j VAT ry Lh r £ ffs AL) geil frolsrt fil Ud BH | i I Or AUSTRALTA Yo. 19 of be we a oO INDUSTR t os ~ . IN TRE of. the Oye ane. SF LoNn oy CUP LO Zeor registered under cue CONCLE TATTOO wd REPT P UTIOW Reg, yaad ~~ REVNVOICG hy Yl iV bus rve fred R © RBC Gp are A pa ee EY LIZ of ' Conetliarty: ond Ardredre LVS} G rot Tats wt questie: . of daw for ts > cerarsn of Lhe boderat Cone, ur Austredta. IT huyve hed the advantage of reeding tne reesocsn for Sucgeent of fae Chref Juee sx and J.B. Sweeney Fe. aud eT carey with the upin.gat wrpresset an tnele reesons., Nothing tut oo wtoumert duriny the beatang of the reference and nothacyg @lisaune troy forther ceflection pertvuet Ss we fo vary the views tL naplegeed ap chias assur ove Tharraht oy. Te matnd CWO) BG WTR. 223 at pp. 253-255, but To eats mars whe yoo attire OF Ory tsa Tabor hae berg referpe lS ta ee oC MNanker eg cet pt ue asters oh foe eae, orl Oar d, ira refer to some of tnem; Allen v. Tounsend (1977) 31 F.LLR. 43] per Evatt and Northrop JJ. at p.467, Wiscman ov. Professional Radio and Blectronics Iretitute of Australesrvea (1978) 25 F.L.P. 24 per Evatt and Vorthrop JJ. at pp.38-42, Lovell v. Federated Liquor ard Allied Tndustrie»s Dmriovees' Union of Australia (1978) 35 #.U.R. 7? por Smithers and Pyatt JJ. at p.8l and pec Nortnrop J. at pr.92-9, McLeish v. Kane (1978) 22 A.L.R. 547 pet J.B. Sweeney, Pyvatt and FPorthrop JJ. at -556-9 Sherriff v. JYownsend, supri, per Northrop J. at , ' _ = -_— e pp.256-7 and Roland v. Munro 23 Ney 1980 per Evatt and Northroo JJ. at pp.16-22. Regulation 115(1) (d) (1) does not prescribe methods by which elections are to be conducted, In that sub-paragraph the word "election" is used in contradictinction to the word "appointment", see Porter Ve A.F.U.L.E. (1965) 7 F.L.R. 396 per Spicer C.d., Joske and Smithers JJ. at 398-9. 'The word "appointment" was the word used in the cquivalent provisions contained in Schedule RB to the 1904 Concilietion ard Arnitvation Act, In the Regulations frou the time they wore Firet made in 1913 until 1928, the eguivalent provisions contained noither the word "appointment" nor the word "election". The methods ty whch elections are to be conducted ata preeeriped in ike Conciliation and Arbitration Act 3904 as amomicd, sea +133 and s.133AN, altnrough cercein of the sub-ecectiens of s.litas are not yet on once sation. rd The provisions of the Act prescribing the methode by which elections are to he conducted heave beer arended from timg to time. The substance cof the aaendwentc made ir 1973 (Act No. 138 of 1973, s.52), was te prescribe the collegicte elector.l system as a method by which elections could be conducted but those amendments SLill permitted a limited type of collegiate electoral system. Retween 1973 and 1976, $.133(1A) contained expressions based on the assuiption that the rules of an organization validly could provide that a holde: of an office by reason of beinuy the holder of that office could be a member cf the commsttee of maneyeacit of the organization. The substance of the amendments made in 1976 (Act No. 117 of 1976, sections 3 and 4) was to widen th type of collegiate electoral system which thereafter was to be permitted. Section 133(1A) was deleted ang 3.4(5) Was inserted, Tne latter sub-section contains expr: ssions wrich make 1t clear that Parliament acted upon the view that under the legislation and regulations then in force, rules of an Organization validly could provide thet a person, by :eagon of being the hoider of an office, could be « member ef a committee of maragement of the organization. Tn deseribine the body which, under a collegiate clectoral system electcd persons to office, the sub-section pvrievided tizt the rcutes could include a provision that persons 'who ate tre holders of offices enritli.g tne holders to mente: hip of Lhat nowy", Fo. many yeed's tbe Conmocwerlin Court of Cencorliatias ard Ware ea eke me ete Arbitration, the Cosmonwealth Industrial Court and the t Federal Court ef Australia have given jJudaments based on tues view that 31n Regulation 115(1) (4) (1) the word "election" is used in contradistinection to the word "appointmant" and dres not preserine wethods by which clections are co be conductc. On at least two occasions, namely in 1973 ard 19/76, a, Parliement bas passed lcgislarion bosed upon the acceptance of tnat vice. In my opinion, that viow of the cffect oF Regulation 115(1) (d) (i) is correct. The rules of the Airline Hosteeses' Association make provisicn for committees of mweanagemcnt of the Association, for federal officers cf the Association and for a federal council empowered to determine policy, which council is also a committee of management within tne @ofincd meaning of that phrase. Tho rules of the Association provide that the members of the committees of mrinwdement are persons who are the holders of offices within the defined meaning of that word entitling then to membership of the corn tices of Management. The rules of the Asscciaticn define Lhove persons by reference to them being the holfers of federal ia ° m hOQ wn + ') bea offices and the hoiders a branch delejyates. Two of the branch delegates from each brance are the prancy officers for each brerch of the Associe@tion. The rules or the Association provide For the hotder of each of Lion offices, wathin the defined meaning of thet word, to be elected to tnose offiecs by a method woich ts not contrary fo the Conciliation and Arbitratiron Act. None of those persons has been appointed to the office held. Jt followe therefore that tne ruten of the Asssociicion make orovisiun for the electior of the committees of management and of the officers of the Assocratlion. They do not mekeo srovirion for tie appointmenk cf committees of management and of the officers of the AeLeciution. In this respect the rules of the Association ate not contrary to Regulation 115(]) (ai (i). I aqree with the answers provosed hy the Chief Judae. + Deve co Vat brary ay . A] t t ¥.bo AL. —_