rernee-- + 4 CBT CUWORDS Industrial law ~ registered organization ~ whather rule imposes restrictions that are oppressive, unreasonable or unjust - rule confining to members of branch committce of Management the right to nominate candigates for branch secretary and assistant branch secretary - Conciliation and Arbitration Act 1904 s.140(1) (c) KENNETH LAWRFNCE LANCASTER v- TEE MUNICIPAL OFFICERS ASSOCIATION OF AUSTRALIA (Vv. No. 15 of 1980) MICHAEL JAMES CANNY v. THE NUNICIPAL OFFICrRS ASSOCIAT (ON OF AUST RALIA (V. No. 16 of 1980) Coram: KEELY J. Date of Order: 4 December 19890 Where made: Melbourne Pr eer enn IN THE FEDERAL COURT OF AUSTRALIA No. V.15 of 1980 No. V.16 of 1980 ) ) VICTORIA DIST RICE REGISTRY ) ) ) INDUST RIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 BETWEEN: KENNETH LAWRENCE LANCASTER Applicant AND: THE MUNICIPAL OFFICERS ASSOCIATION OF AUSTRALIA Respondent AND BETWEEN: MICHAEL JAMES CANNY Applicant AND: THE MUNICIPAL OFFICERS ASSOCIALION OF AUS RALIA Respondent REASONS FOR JUDGMENT 4 December 198C KEELY J. On 1 October 1980 orders were made at the instance of Kenneth Lawrence Lancaster and Michael James Canny calling upon the Municipal Officers' Association of Australia (the association) to show cause why the Court should not make a declaration that rule 73(b)(x) of the rules of the association (the rules) contravenes' s.140(1) of the 2. Conciliation and Arbitration Act 1904 (the Act) insofar as it purports to require a nomination for en election for the office of branch secretary and/or assistant branch secretary to be signed by any two members of the branch committee of Management. Mr Howard Nathan Q.C. appeared for the two claimants and Mr Peter Gray of counsel appeared for the association. The two matters were heard together by consent. The two claimants are and were at all material times members of the association. The association 1s an organization of employees registered pursuant to the Act. It is composed of: »». the Victorian Branch, State Electricity Commission of Victoria Branch, Tasmania Branch, Queensland Branch, South Australian Branch (including Northern Territory and Broken Hill), New South Wales Branch, Western Australian Branch and such other branches as may be set up by resclution of Federal Council." An election for the positions of branch secretary and assistant branch secretary of the Victorian Branch (the branch) is being conducted pursuant to s.170 of the Act. There is affidavit evidence before the Court that documents have been lodged purporting to be nominations of the two claimants for the office of branch secretary and assistant branch secretary respectively in the branch. Those purported "nominations have both been rejected by the returning officer as being invalid on the ground that they were not signed by Nee ee ee ~ ace - - -- - - +2 3. two members of the branch committee of management as required by rule 73(b)(x) of the rules. Rule 73 includes the following provisions: "73. Nominations (a) Form All nominations shall be in writing in the form set out in the schedule to these Rules and signed by the nominee on accepting nomination. (b) Eligibility for Nomination (1) Only those members of the Association who are financial members in accordance with Rule 13 as at the last day of the month immediately preceding the month in which nominations for an election close shall be entitled to nominate or be nominated for any office a prerequisite for which 1s membership at that election. eee (x) As to elections for the offices of: Branch Secretary Assistant Branch Secretary : any two members of the Branch Committee of Management may nominate any person. The returning officer took the view that rule 73(b) (x) requires that nominations for the positions of branch secretary and assistant branch secretary be signed by two members of the branch committee of management and that nominations which were signed by two persons who were financial members of the branch but were not members of the wer me pene os - - - = eee ee ee Ree 4. branch committee of management did not constitute valid nominations under that rute. Two applications under s.159 of the Act (matters V. No. 17 and V. No. 18 of 1980) have been lodged by the present claimants in respect of the returning officer's action in rejecting the two purported nominations. In those proceedings the claimants allege that the rejection of the nomination in each case constitutes an "irregularity". At an earlier hearing those applications were joined by consent with the present proceedings for the purpose of hearing applications for interim orders - which were made on 7 October 1980 under s.163 of the Act. In that hearing Mr Nathan, on behalf of the present claimants, contended in respect of the two s.159 applications that rule 73, as a matter of construction of the rules, did not require that nominations for the positions of branch secretary and assistant branch secretary be signed by two members of the branch committee of management. That contention was contrary to the view taken by the returning officer of the rule and was contrary to the construction of the rules which Mr Gray had stated would he advanced to the Court on behalf of the association. In the present proceedings Mr Nathan has conceded that rule 73(b)(x) requires that nominations of persons wishing to we nee ee ne eee e es - - 5. stand for the office of branch secretary or assistant branch secretary must be signed by two members of the branch committee of management. No contrary view has been advanced to the Court in these proceedings, but the Court must interpret the rule before 1t can deal with the application under s.140 in the present proceedings. As to this question Mr Gray advanced a number of arguments but I only find it necessary to refer to two of them. One was based upon the manner in which rule 73(b) makes detailed provision for nominations for elections for various other offices. The right to nominate a person or eligible member is conferred upon "any two members" (of the branch, sub-branch or within a division) in respect of those offices dealt with in clauses (viii), (1x), (xi) and (xii). By way of contrast the class given the right to nominate a person or eligible member 1S a more limited one as to the offices referred to in clauses (iv), (v), (v1) and (vii). Clause (x), which is the clause presently under consideration, falls within this latter group. The other argument was based upon rule 74(b). It expressly refers to "each person entitled to nominate a candidate" and casts a duty upon the returning officer to forward a nomination form to each person in that class. Having regard to the carefully prepared araquments advanced by Mr Gray and to the context of the rules as a whole I have oe ee 6. come to the conclusion that rule 73(b) (x) requires that the nominations of candidates for the positions of branch secretary and assistant branch secretary be signed by two members of the branch committee of management. I turn to consider whether rule 73('>)¢r}, so ' construed, contravenes s.140(1) of the Act in requiring the nominations to be signed by two members of the branch committee of management. Mr Nathan advanced five arguments in support of his contention that the rule contravenes the section. Mr Gray submitted that four of those five arguments were directed to the question whether the rules failed to make a provision required by a provision of the Act or the Regulations (see s.140(1)(a) of the Act). I accept that submission and also his submission that those four argum2nts cannot found an attack upon a single rule such as rule 73(b)(x). They could only support a contention that the rules as a whole fail to make a provisicn required by the Act or the Regulations. As the rule to show cause in these proceedings is limited to the question whether rule 73(b)(x) contravenes s.140(1) of the Act, 1t is not open to the claimants in these proceedings to advance arguments that the rules as a whole fail to make some provision which the Act or Regulations requires them to make. Mr Nathan's remaining argument was 'hat rule 73(b) (x) tee wane 7. contravenes s.140({1) of the Act in that it imposes upon "members of the organization, conditions ... or restrictions which, having regard to the objects of (the Act) and the purposes of the registration of organizations under (the Act) are oppressive, unreasonable and unjust" (s.140(1) (c)). On the evidence the association has given consideration to the question of whether the branch secretaries and assistant branch secretaries should be members of the branch committee of management and also to the question of whether any two members of the branch should be eligible to nominate candidates for those two offices - instead of requiring that such a nomination be signed by two members of the committee of management. Mr Durham, the assistant federal secretary of the association, in an affidavit filed on behalf of the respondent association, but tendered in evidence by Mr Nathan, gave the history of these matters. In April 1975 the federal counc'l of the association discussed "certain unsatisfactory features of the Association's Rules and the effect of changes to the Conciliation & Arbitration Act 1904 which came into operation in 1973". The federal council resolved: "That a sub-committee at Federal level be appointed to review the constitution and rules of the Association, and recommend any revision necessary." In February 1976 the federal executive of the association resolved: "That following the resolution of Federal Council in Hobart in 1975, a sub-committee comprising the Federal President, resident Federal Vice-President and a representative from the Victorian and S.E.C.V. branches be formed to review the Association's constitution and rules and report back to Federal Executive." The sub-committee so appointed reported to the federal executive on 30 March 1977 making certain proposals for consideration by federal council. It proposed the preparation of a complete draft set of rules after discussion by federal council on matters of policy and discussions with branches as to the draft. At its meeting in Perth in 1977 federal counci? resolved: "That Federal Council authorise the issue of a draft set of rules incorporating the proposals as contained in the report of the Rules Revision Sub-Committee, as amended." In accordance with this resolution the draft rules, together with the amended rules revision sub-committee report, were circulated to all branches on 22 April 1977. Comments were received from branches, including a comment from the Victorian branch, wn a letter dated 9 June TON FT me eee ee Re eee - -- ~ a 9. 1977 to the federal secretary, which included the following passages: "Dear Sir, Re_: Report on Rules Revision. The Branch Committee of Management, and subsequently, the Branch Executive, has considered the above Report and the Draft Rules as amendeed to date and wish to make the following comments. Firstly, it is our view that the Federal Secretary, Assistant Federal Secretary, Branch Secretaries and Assistant Branch Secretaries, where applicable, should be members of their respective Committees for all purposes, including voting thereon. The arguments in support of this are basically: (a) That these officers ought to be required to adopt a position and indicate this by their vote, and (b) That as they are to be subject to rank and file election, then they ought to have equal rights with other members of their Committee. Thirdly, the Branch Committee of Management expressed the view that elections for Federal Secretary, Assistant Federal Secretary, Branch Secretaries and Assistant Branch Secretaries, where appropriate, should be conducted on the basis that any 2 members should be able to nominate any person. Yours faithfully, G. Weaven State Secretary" After considering the views expressed by the various iO pommmnr mer tee te - - eee -- Ar fee a. om ees branches, 10. further recommendations to the federal executive association, including the following: "The Victorian and S.E.C.V. Branches have expressed the view that Secretaries and Assistant Secretaries should be members of their respective committees for all purposes. The Victorian Branch also is of the view that any member should be eligible to nominate candidates for full time offices. In determining the questions of (a) participation of full time elected officers as part of their respective committees and (b) whether eligibility to nominate for full time offices (as opposed to eligibility to be nominated) should be open to all members, we are really determining the way in which the Association will operate in the future. Traditional union structures in the craft and blue collar unions' have involved full partic.zpation in committees by full time officials and open nominations from the rank and file with rank and file elections. This has meant, particularly at the Fed-ral level, a Gominance of full time officials, the Federal Executive in some cases being made up almost entirely of full time officers. In our area, the tradition has been different. Collegiate elections of full time officers has led to the development of ''career' officials acting in an executive advisory capacity to an active, informed level of elected part-time officials. Demonstrably, both systems have worked and the decision required is 'which suits the purposes of MOA best?! Looking at one area, the S.E.C.V. Branch, a substantial argument could be made for the open nomination, full participation type structure. of the rules revision sub-committee made certain the ll. There 1S one employment area and it 18 necessary to have a complete knowledge of the S.E.C.V. to effectively work in the branch. However in the remairder of the Associaticn a much more complex problem of differing employers and differing industries exists, and the argument for the 'collegiate' type approach is the stronger. The Victorian Branch argues that the full time officers ought to be required to adopt a position and indicate this by their vote. Experience in all Branches and Federally is that full time officers invariably make recommendations on most issues, thereby clearly adopting a position - sometimes more so than if merely voting. Additionally, they argue that rank and file election ought to give equal rights with other members of the Committee. This argument does not necessarily follow. The Secretary has rights and duties that Committee members do not have, just as the reverse applies. Having regard to all of the factors involved, the Sub-Committee 1s of the view that the structure proposed in the draft rules be maintained, however we recognise that this issue ought to be resolved before the completed rules are put for a vote. Recommended: That Federal Executive determine: l. Should the Association rules provide that full time elected officers be members of their respective ~ommittees. 2. Should the Association rules provide that any member be eligible to nominate candidates for full time offices." On 1 July 1977 the federal executive of association dealt with the further report of the "revision sub-committee and the following passed: te ater ae eee the rules resolutions were women eee ee - Foe 12. "That the second report of the Rutes Revision Sub-Committee and the recommendations contained therein be adopted. That the Association rules should not provide that full-time elected officers be members of their respective Committees." It was moved by Mr Peterson, a federal executive member from the Victorian branch: "That in the interests of democracy the Association rules provide that any member be eligible to nominate candidates for full-time offices." This motion lapsed for want of a seconder. The federal executive of the association on 5 August 1977 resolved to refer the question of new rules to a postal ballot of the federal council which was conducted and concluded on 19 August 1977. It resulted in the unanimous adoption by the federal council of new rules which included the present rules 35 and 73 and the form of nomination now contained in the rules. The new rules were certified by the Industrial Registrar on 30 December 1977 and came into operation on 1 January 1978. It 1s clear from this evidence that the association gave consideration to what was a desirable form of rules for its particular needs. The association was obviously aware Rea ne re cme -- . ro we - oes eee eee aeons Oe ae meen = 13. that, in the words of the recommendation to which I have already referred, 1t was "really determintng the way in which the association (would) operate in the future". I accept Mr Gray's submission that, subject to the Act, it is a matter for the association to determine what rules are best suited to its needs having regard to the structure and nature of the organisation and the surrounding circumstances. As the Court said in Crealy v. Commonwealth Bank Officers' Association (1958) 1 F.L.R. 153 at p.157, in a passage quoted by Bowen C.J. in Re Airline lostesses' Association (judgment delivered 1 October 1980 - not yet reported): "The nature of the provisions to be made for the election of committees and officers is primarily a matter for the members of the association to determine having regard to the nature .f that body and the circumstances which exist in relation to its membership." It is not for the Court to form any opinion as to the type of rules which it considers would be best suited for an organization let alone to seek to impose its opinion upon a registered organization. As O'Mara J. said in Thornton v. Mackay (1945) 56 C.A.R. 561 at p.590: ",.. I do not conceive it to be the function of the Court to put into effect 1ts own opinions as to what 1s desirable in the way of union rules ...". 14. In these proceedings the Court's function is to determine whether rule 73(b)(x) contravenes s.140(1)(c) of the Act. On this question Mr Nathan argued that rule 73(b) (x) imposes upon members conditions and restrictions which are oppressive, unreasonable and unjust in that it limits the right to nominate a person for the office of branch secretary Or assistant branch secretary to those members of the association who are members of the branch committee of management. In his submission the rule contravenes s.140(1)(c) both by the restrictions 1t imposes upon members who may wish to be nominated for one of the two offices and also by the restrictions it imposes upon members who may wish to nominate some person for either office. The rules do not specify the number of members of the committee of management of the branch but I was informed by covnsel that there are 18 members. Mr Nathan relied upon the object set out in s.2(f) of the Act, which reads as follows: "(f) to encourage the democratic control of Organizations so registered and the full participation by members of such an organization in the affairs of the organization." He stressed the importance of the role of the branch 15. secretary and he relied in particular upon rule 42(c) which reads as follows: "(c) The Branch Secretary shall be the chief executive officer of the Branch. Between meetings of the Branch Committee of Management he shall conduct and manage the affairs of the Branch. : He shall consult on matters of policy with the Branch President ... as to the course to be pursued in any matter pending the next sitting of the Branch Committee of Management. He shall be empowered to attend or be represented and to be heard on any matter at any meeting within the Branch and subject to approval of the Branch Committee of Management to inspect and examine or cause to be inspected and examined all registers, books, papers, deeds, documents and accountS in or un connection with the conduct of the affairs of the Branch or of any Sub-Branch of the Branch." He referred to rule 18 which provides that: "Bll disputes of whatever nature between a member or members and an employer may be submitted to such Steward, who shall in turn communicate with the Branch Secretary as early as possihle." He also placed some reliance upon rule 37(b) (iii) which provides as follows: "(i1li) The Branch Secretary may call a Meeting of members of the Branch or of a part thereof to consider matters affecting the members of the Branch or that part thereof to obtain the views of the members on the matter or matters considered. ..." TA ae nee reo 16. However, aS Mr Gray pointed out, there is no provision in the rules giving any binding force to the decisior. of such a meeting. Mr Nathan also referred the Court to rules 61 and 62, but as Mr Gray submitted, those two rules do not confer any initiating power upon the branch secretary. They place a duty upon him to report certain matters to the federal secretary. Other rules impose various administrative duties upon the branch secretary. Neither the branch secretary nor the assistant branch secretary is a member of the branch committee of management (see rule 35) but it was common ground that each is the holder of an office within the meaning of s.4(1) of the Act and must be elected (s.133(1)(a)}. In my view neither has a right to vote at meetings of the branch committee of Management. I reject as untenable Mr Nathan's argument that such a right to vote is conferred by rule 71 (Rules of Debate) which provides that: "(33) Every financial member who is within the room at the time 'the guestion' is put shall vote thereon unless for special reasons he be excused by the meeting." Mr Gray made it clear that he "did not seek to diminish the importance of the powers" of the branch secretary's office and agrecd that the branch secretary, as omy se 17. the chief executive officer of the branch, is "a man of great importance in the organization's structure". In these circumstances I do not find it necessary to consider in detail the rules relating to the powers of the branch secretary. However, I accept Mr Gray's submission that it 1s not correct to say, as Mr Nathan did, that the "branch secretary had unparallelled power". Both counsel referred me to many judgments of this Court, of the Australian Industrial Court and of the Commonwealth Court of Conciliation and Arbitration but, as Mr Gray Said, they really do not bear directly on the question at issue - they bear indirectly on it. Having regard to that fact and the express wish of the respondent association that judgment be given in these matters as soon as possible, I do not propose to refer to those authorities in these reasons for judgment. In considering the application, the Court must have regard to all o° the objects of the Act and to the purposes of the registration of organizations which, Mr Gray submitted, anclude "the representation of the industrial interests of its members in the best possible way". He referred to the objects contained in s.2(c) and (e), which read as follows: "(c) to provide means for preventing and settling industrial disputes not resolved by woo ™" ee te re I one ee 18. ainnicable agreement, including threatened, umpending and provable industriat disputes, with the maximum of expedition and the minimum of legal form and technicality; (e) to encourage the organization of representative bodies of employers and employees and their registration under this Act; Mr Gray stressed the importance of the role of the association aS a registered organization in representing its members - including representing them in proceedings directed towards settling industrial disputes. He stated that it was important that the branch secretary and assistant branch secretary be sufficiently "qualified and experienced" to enable them to carry out their duties on behalf of the members. This argument leads to a consideration of the question whether it is necessary or desirable, in order to ensure that the branch secretary and assistant branch secretary are sufficiently "qualified and experienced", for rule 73(b)(x) to restrict the class of members who may nominate persons for election to either of the two offices. Mr Gray contended that the reason that the association had opened the field of candidates to persons outside the membership of the association was to enable it to elect to - those positions persons having "qualifications, experience, talents to the maximum possible that is available". I shall 19. refer to such persons as "qualified and experienced". He suggested that the association might advertise "to the public at large for candidates" in the period preceding an election and that it "might conceivably get a large number of candidates within and outside the membership of the organization - many of whom might be nothing more than freeloaders looking for a good comfortable salaried job". Mr Gray put it that "it 1S onerous to expect the organization to conduct an election amongst all comers as the penalty for wanting to take advantage of that talent". However, he made it clear that he was not referring to the possible advantage of saving the cost of an election. Despite Mr Gray's forceful advocacy there 1s no Material before the Court to suggest that the possibility of having some candidates who are not "qualified and experienced" is a real problem. Nor is there any matcrial to show that the presence of such persons - or of "freeloaders" - as candidates at an election is likely to lead to unfortunate or undesirable results for the association, the branch or the members. In referring to the absence of material on this aspect, I am not of course suggesting that it is always necessary for the relevant background, against which the question before the Court 1s determined, to be the subject of evidence. Sometimes that background will be apparent from the nature of the organization or from an examination of the rules as a whole. In other cases it may tyr ee ee eee wenemem ee we ee eee -- : wreee - Lee naa "= 20. be common ground between the parties. Sometimes a proposition advanced by counsel may be self-evident and not require supporting evidence. However, after considering all of the arguments advanced, the rules as a whole and the evidentiary material before the Court - particularly as to the consideration given to this matter by the association - in my view there 1s nothing to show that the association would be disadvantaged in any way if the rules did not restrict the right to nominate candidates for the two offices in question by requiring that such nominations be by two members of the branch committee of management. There is no reason to believe that a rule permitting such nominations to be signed by any two members of the branch would prevent or deter ihe nomination of persons with the necessary qualifications and experience. It would seem that, 1f the rule so provided, the only disadvantage that might occur is that the members of the branch, in their capacity as the electors, might have to decide between what Mr Gray calls "qualified and experienced" persons on the one hand and "freeloaders" on the other. Mr Gray argued that the rules of a registcred organization which restrict in some way the class of persons given the power to nominate other persons for election to various offices do not necessarily contravene s.140. It would be necessary to consider each case in its own context eel tetehe adhe aeeae eaeel awe - - - coos - Ot te pweerprqumama acs Qmcen sew ns = ec wnee me meme 21. in order to determine such a question but it may be that a rule restricting the class of "nomina*ors" to financial members of a branch would not contravene s.140(1)(c). Again, it may be that in a particular organization a rule restricting the class of "nominators" to those members who have been financial members for a specified period would not contravene the section. Where an application to the Court raises a question as to whether a particular "restriction" is contrary to s.140(1) of the Act it will often be necessary to consider that question against the background of that particular organization - although there have been many cases where a rule (not relating to nominations) has been held to contravene s.140(1) without requiring factual material as to all the surrounding circumstances. Mr Gray formulated the question which the Court has to determine as being: "Does the restriction ..., having regard to all of the circumstances, contravene the Act by being a restriction of too great a degree". In my opinion rule 73(b) (x) does so contravene the Act. Great weight must be given to the fact that the vast majority of the members of the branch are unable to nominate a person for election to the office of branch secretary or assistant branch secretary. Mr Gray pointed out that the material before the Court in this case does not show the size of the membership of the association or of the branch. In that context he posed the 22. question: "What proportion does 18 (the number of members of the committee of management of the branch) represcnt and what relationship does it bear to the overall membership?". However, rule 22({1) expressly makes provision for branches which may have more than 2,000 members and branches which may have more than 3,000 members. Having regard to that rule jit is clear that the number of persons permitted to nominate candidates for the two offices represents a very small proportion of the membership of some of the branches of the association. It may be that a rule of the association would not contravene s.140(1)(c) if it required candidates for the offices of branch secretary and assistant branch secretary Lo fulfil certain specified objective requirements, ¢.g. as to the minimum age, educational standard or work experience required of the candidates (see MacDonald v. The Amalgamated Engineering Union (Australian Section) (1962) 3 F.L.R. 446 at p.448 per Spicer C.J. and Eggleston J. and McKay vy. Australian Workers Union (1968) 12 F.L.R. 182 at p.186). 1 do not express any opinion on that question as the present rules do not so provide and the matter has not heen argued. Rule 73(b)({x), however, does not prescribe any objective standard. The result is that it would be quite possible that every member of the branch committee of management might decide not to nominate a person who is te 23. within Mr Gray's category of "qualified and experienced" persons. Such a person might be one whom the members of the brarch would have elected to the office of branch secretary or assistant branch secretary if he had been nominated and they had had the opportunity to vote for that person. As a result of the rule it is quite possible that the members of the branch will not have the opportunity to vote for such a person. Leaving aside the possibility that the power to decide not to nominate a person might be exercised mala fide, rule 73(b) (x) in my opinion contravenes s.140(1)(c) of the Act in that it imposes upon members of the branch restrictions which are oppressive and unreasonable. The members of the committee of management might fail or refuse to nominate a person who wished to become a candidate for the office concerned, notwithstanding that he is a "qualified and experienced" person. That failure or refusal might be for any one of a number of reasons or any combination of them and, of course, different reasons might affect the minds of different members of the branch committee of management. It has been convenient to refer to what members of the branch committee of management might do but this is not intended to convey that each member of the committee could ensure, by his action alone, that a person was nominatcd. This 1s not the case as rule 73(b) (x) requires that the nomination be signed by two members of the branch committee of management. 24. However, my opinion that rule 73(b) (x) contravenes s.140(1)(c) is mot dependent in any way upon the fact that the nomination form must be signed by two members of the committee instead of one. Even as to a person who is undoubtedly "qualified and experienced", a member of the committee of management might refuse to nominate him for one or more of a number of reasons. Without attempting to prepare an exhaustive list, such a "reason" could be that the member of the committee of management: (a) considered that the present occupant of the office was quite satisfactory; (b) although critical of the actions and attitudes of the present occupant, considered him to be preferable to someone whose likely performance was necessarily unknown; (c) was a friend of the present occupant of the office and did not wish to risk jeopirdizing that friendship by nominating someone to oppose him; (d) had already nominated anothcr candidate and thought it would be wrong to nominate two candidates for the one office; (e) considered that the potential candidate was not the type of person the potential nominator would wish to hold the office; (f) did not know the potential candidate sufficiently well and considered that acting aS a nominator amounted to a personal endorsement of the candidate; (g) did not know the potential candidate at renee ee ee ee eee ~ See eee 25. all. Certain affidavits sworn by various members of the branch committee of management, filed on bchalf of the respondent, were tendered in evidence by Mr Nathan wtrthout objection by Mr Gray. I expressed some doubt as to whether that evidence was relevant to the issue before the Court. However, it may be that it tends to show that there is nothing unreal or fanciful in the possible reasons set out above as the reasons which might rotivate the members of the branch committee of management in refusing to nominate a person wishing to become a candidate for either of the two offices. In my opinion rule 73(b) (x) in respect of the office of branch secretary contravenes s.140(1)(c). The assistant branch secreta-y is to "assist the Branch Secretary in the performance of his duties" (rule 43(c)). In addition, rule 43 provides that: "(d) In the absence of the Branch Secretary or when that office is vacant the Assistant Branch Secretary shall assume all of the powers and functions of Branch Secretary." Mr Gray did not seek to draw any distinction between the position of the branch secretary and that of the assistant branch secretary for the purpose of the present proceedings. He made it clear that, if the Court held that IN_THE FEDERAL COURT OF AUSTRALIA Nes. V)5 } ) INDUSTRIAL DIVISION ) ) ) VICTORIA DISTRICT KEGISTRY BETWEEN: KENNET) LAWRENCE LANCASTER and THE MINICIPAT, OFTIGERS' ASSOC OF AUSTRALIA AND BETWEEN: MICHAEL JAMES CANNY and THE MUNICIPAL SRFLS - OF AUSTRALIA , (wos. VL5 and 1% of iMduay EN TUL MAIVER of che CFficecs' LATION ASLOCT A ey ASeocsehive leamant Re spa ua 7 Nauscipe b c . ~ os gt stil Et ales Refererce by Industrial Ro-jarcer (Nos. V1? and 15 of REASONS FOR JUDGMENT 7 October 1980 In Matters V15 anu Vio of IAF, on ts orders were made at the iistunce of KReameth i and Michael James Canny callin. upon the Ton Association of Austrafie Chhe Associal ict) re \ Laake? rir ' Nw . fe Gor pase 7 t ' ' a t ~ d ele re ~ (ria, a-'! Clpas © i oof bbe 7 oe a the Court should not make a declaration that Rule 73(b)(x) of the Rules of the Association contravenes s.140(1) of the Conciliation and Arbitration Act 1904 (the Act) insofar as it purports to require a nomination for an election for the office of Branch Secretary and of AssisLant Branch Secretary to be signed or endorsed by two members of the Branch Committec of Management. Both matters were returnable before the Court yesterday for directions in the matters and for the hearing of applications on behalf of the claimants for interim orders to be made under s.140(10) of the Act. Matters V17 and V18 of 1980 consist of rcferences to the Court by the Industrial Registrar under s.159(4) of the het of applications by Kenneth Lawrence Lancaster ard Michael James Canny pursuant to s.159 of the Act for an erquiry by the Court into the claims by the applicants that there has been an irregularity in or in commection with the election for the office of Branch Secretary and Assistant Branch Secretary of the Victorian Branch of the Association. On Friday last, 3 October 1960, in each of those two Matters after the two applicants had announced their intention of applying to the Court for interim orders under s.163(1) of the Act, one Michael Edward Small (the returning officer) who is an officer appointed pursuant to s.170 of the Act to conduct the said election. gave an undertaking Lo the Court that he would not make a declaration of either of the two polls the subject of the proccediugs under 3.159 of the Act before the hearing and determination of the applications for interim orders. Those undertakings were reaffirmed yesterday. Mr Howard Nathan of counsel appeared for the two claimants in the s.140 proceedings who were also the applicants in the proceedings under s.159. For present purposes it is convenient to refer to them simply as the claimants. Mr Peter Grey of counse] appeared in the s.140 matters for the Association and in the s.159 matters for the Association, for Mr Stephenson who held the position of Australian Branch Secretary in the Victorian Branch until 29 September 1980, for Mr Gibbs, a candidate whose nomination has been accepted as being valid by the returning officer in the election for Assistant Branch Secretary and for Mr Gary Weaven, voo hes been Secretary of the Victorian Branch for some time and who is a candidate for re-election to that position. Mr Truscott appeared in the s.159 matters for the returning officer. All four matters were listed before the Court yesterday when all parties consented to them being heard together for the purpose of giving directions in the matters and for the purpose of hearing applications for interim orders under s.140(10) and s.163(1) respectively. There is affidavit evidence before the Court that the two ciaimants have lodged documents which Mr Nathan contends are valid nominations for the positions of Branch Secretary and Assistant Branch Secretary respectively. Those nomination~ er tau have both been rejected by the returning officer as being invalid in that they were not signed by two members of the Branch Committee of Management. Branch Rule 73 includes the following provisions: "73. Nominations (a) Form Ali nominations shall be in writing in the form set out in the schedule to these Rules and signed by the nominee on accepting nomination. (b) Eligibility for Nomination (i) Only those members of the Association who are financial members in accordance with Rule 13 as at the last day of the month immediately preceding the month in which nominations for an election close shall be entitled to nominate or be nominated for any office a prerequisite for which is membership at that election. (x) As to elections for the offices of: Branch Secretary Assistant Branch Secretary : any two members of the Branch Committee of Management may nominate any person." In matters V17 and V18 of 1980 (the proceedings under s.159) Mr Nathan on behalf of the applicants contends that, as a matter of construction, Rule 73 does not require that nominations for the positions of Branch Secretary and Assistant Branch Secretary be signed by "two members of the Branch Committee of Management". That contention is ccntrary to the view taken by the returning officer of the two nominations and is contrary to the construction of the cules which Mr Crey has stated will be advanced to the Court on behalf of the Association. Alternatively, Mr Nathan contends that, if Rule 73 (contrary to his submission as to its proper construction) does require such nominations to be signed by two members of the Branch Committee of Management, then, insofar as it so provides, it contravenes s.140(1) of the Act. The latter argument is also the basis of his clients' claims in Matters V15 and V16 of 1980 - the proceedings under s.140. Both Mr Nathan and Mr Grey submitted that the proceedings under s.140 should be heard first. Discussions had taken place between counsel for the parties as to the date of hearing and as to the directions to be sought from the Court. In respect af both the proceedings under s.140 and the proceedings under s.159 I give the following directions, which were put forward by Mr Nathan and not opposed by Mr Grey or Mr Truscott: 1. The proceedings under toth sections to be listed for hearing on Monday, 24 November 1980 in Melbourne at 10.15 o'clock in the forenoon and the s.140 matters to be heard first - subject to any order by the Court hearing the matters. 2. Any further affidavits on behalf of the claimants to be served and filed on or before 17 Octobcr 1900. Le) Points of claim to be served and filed by the claimants on or before 24 October 1980. 4. Points of defence to be served and filed on or before 7 November 1980. 5. Any affidavits on behalf of any of the respondents to either proceeding to be served and filed on or before 7 November 1986. 6. Any affidavits by the claimants in reply to be served and filed on or before 14 November 19580. 7. Liberty to apply is reserved to all parties. In matters V15 and Vl6 of 1980 Mr Nathan sought interim crders under ¢.140(10) of the Act and in matters V17 and V18 of 1980 he sought interim orders under s.163(1) of the Act. Mr Truscott on behalf of the returning officer did not submit any argument. as to the application for an interim order binding upon the returning officer. Mr Grey, in opposing the applications under both sections, submitted that the relevant principles are those applicable to applications for interlocutory injunctions and referred the Court to the decision of Evatt J. in Cook v. Crawford and ors (judgment delivered 14 September 1979) in respect of an application for interim orders under s.141(2) of the Act. Mr Nathan did not advance any submission to the contrary. Accordingly, I consider the applications on the basis of what the High Court said in Beecham Group Ltd. v. Bristol Labcratories Pty. Ltd. (1968) 118 C.L.R. 618 at pp.622-623: "The Court addresses itself in all cases, pacent as well as other, to two main inquiries. The first ts whether the plaintiff has made out a prima facie case, in the sense thar. if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is directed to this aspect of the matter. It is whether the inconvenimce or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." Under s.163(1) Mr Nathan sought orders that, pending the determination by the Court of the enquiry: l. the returning officer refrain from declaring the result of the election or from taking any further steps in the conduct of the election for Branch Secretary or Assistant Branch Secrotary in the Victorian Branch of the Association; Mr G. A. Weaven continue to act in the office of Branch Secretary of the Victorian Branch and carry out all of the duties of that office. As these are applications for interim orders it is desirable that I should not form any concluded views as to the evidence or as to the issues in dispute in the proceedings. However, on the evidence before the Court at this stage. I consider that, if the evidence remains as it is, there is a probability that the applicants will be held entitled to succeed on one or other of the two alternative contencions advanced by Mr Nathan to which [ have already referrel. The matters have not been fully argued and £ have nov formed any concluded views. However, as to the cunstruclion of the rule the applicants rely upon the prevision in Rule 73(a) and the wording of the nomination form sect oul as a scheduse to the rules and referred to in Rule 73(a). Further. ihe wording of Rule 73(b)(x) which contains the sprcific reference to "two members of the Branch Committee of Manaacment" uses che word "may" in providing that they "may nominate anv perenn" for the offices of Branch Secretary and Assistant Branch Secretary. The use of the word "may" may be compared wilh the words used in Rule 73(b)(ii) which commences "No member chall be a candidate for the office of ..." and asain in Rule 73¢b)CLit which commences "No member shall be a condidare for nor Conk kune to hold any office ...". As to the alternative contention (challerging the velidity of the rule if it requires that nomination be by two monbers of the Branch Committee of Management) again the matter has net been debated at any length but there are decided cases ana dicta which support the contention that the rule, if so constrned, contravenes s.140(1). If that contention he correct as a watter of law, it may be called in aid in deciding whether the ruie - haying regard to any doubt as to its meaiing - is intendeu to bring about a result that is contrary tc ¢.140 of the Act. 72 fod J C addition to the cases to which T wa> refecred by both counse.. I have noted that in Miller v. The Building Workers Industrial Union of Australia and crs (1947) 59 C.A.R. 836 Kelly J., in dealing with a rule requiring that a candidate's "statement to the members" must be issued "through" the State Management Committee, said (at p.845): "It is clear to me that for a candidate for membership of the State Management CormmiLtee to be required to submit his statements in <upport of his candidature to people who may be contesLling the election for their approval] imposes an unreasonable condition upon his membership of the Union. For his membership of the Union should carry the right to contest offices within it irrespective of the approval or disapproval o his reasons for offering himself as a candida that for which he proposes to stand. I disallow this rule." the passage which I have quoted from Beecban's case (supin). It is sometimes referred to as the "balance of convenience" aspect although the question is not simply one of convenience ~ as the passage quoted shows. There is very little material before the Court as Lo the inconvenience or injury either applicant would be likely ic suffer if an interim order were refused. However, as I] hive said, on the material at prcsent before the Ceur! there is 2 probability that the two applicants will succeed in thair contention that their nominations should be accepted and, as a result, that each should be allowed to contest the eleerian under consideration. If the first interim order cought ds net 10. granted then the persons whom the applicants de3iie to eppose in the election will doubtless be declared clected in the normal course. It is true that, if the applicants ultimately succeed in the proceedings, an order could be made "declaring S the election ... void" (s.165(3)(a)) and declering those persons "purporting to have been elected not to have been elected" (s.165(3)(b)). However, the fact of having to ask for an order in such terms (i.e. asking that a person declared elected by the returning officer appointed under s.170 of the Act) inmy "OO opinion represents at least an inconvenience to che appiteaite notwithstanding its rather intangible nature. Mr Grey sought to rely upon possibie Leone dienes if the Association were forced to operate without an assistant Branch Secretary until there has been a declaration of th poll as to the Assistant Branch Secretary after the determinnarion of these matters by the Court. However, Rule 34(h) provides ' that: "The Branch Committee of Management may ... appoint @ person to act as the ... Assistant Branch Secretary during a period when such office is vacant ... The person shail assuue aii the chities and responsibilities ... umtil an election js held for -he office." On the material before the Court I am wnabie to ceach the conclusicn that ary injury or inconvenience would be an"h suffered by any of the persons for whom Mr Grey a.pcace ll. the first interim order sught by Mr Nathan under +.163(1) were made - to remain in force until the Court ha: determined the questions of the meaning and the validity of Pule 73(b){+). Accordingly, I consider that the inconvenieuce which the applicants would be likely to suffer outweighs any injury or inconvenience which Mr Grey's clients are likely co sur'ec and I grant the first order sought by Mr Nathan in the s. {3% proceedings. Mr Grey submitted that, if the Court decided to grant the first order sought by Mr Nathan, it should also wake an order under s.163(1)(d) that Mr Gibbs "may act" as Assisvant Branch Secretary pending the determination of the matters. Mr Grey placed some reliance upon the fact that Me Gills isd been nominated by members of the Branch Comaittee of Management to the office of Assistant Branch Secrétarcv, However, I do not consider that that fact is a sufficient ground for the making of an order under s.163(1)(d}, nor de I consider that any other ground has been made out for che making of such an order. As to the second order sought, [ am not satisfied that either applicant would be likely to suffer any inconvenience o injury if the order sought were refused and accordire:v I am not prepared to make such an order. In this comection it is to be noted that, under Rulc 75 "any candidan: elccred to any office" retains the office "until his succcarer has been duly elected" and it was not suggested Chat cbal rule cid 12. not apply to Mr Weaven's office as Branch Secretary. I accept Mr Grey's argument that in those cireunstan es no such order is necessary. Perhaps I should add that the ocder sought appeared to be wider in its terme than the peovwrr conferred by the section which is a power t> "order Lhat © person ... may act or continue to act in that office". Lt os not a power to require a person to so act. In matters V15 of 1980 and V16 of 19:0 Mr Nathan soucht three interim orders under s.140(10). Firet, an order in the same terms as the order which I have decided Lo rake in matters V17 of 1980 and VIS of 1980. Second, an order thai, pending the determination of these matters by Lhe Court, the Association take no cteps in or in connection with the election of the Branch Secretary and the election of the Assistant Branch Secretary in the Victorian Branch. As to the first and second orders sought, having regare to the orders in V17 of 1980 and V18 of 1980 which I have already decided to make, I do not consider it necessary to decide these applications at this time, but I recerve liberty to apply. Third, an order that, pending the detenruination or these matters by the Court the Association tefrain and desist from purporting to conduct any election pursuant to Rule 73(b)(x) for the positions of Branch Scererary oi of Assistant Branch Secretary in any Branch of tne Agsoviarion. a 26. rule 73(b) (x) contravened s.140(1)(c) of the Act in respect of one of the two offices, it would not be necessary tc consider any separate argument by him in respect of the other office. In my opinion rule 73(b)(x), in respect of the office of assistant branch' secretary, contravenes s.140(1)(c). Both counsel agreed that, 1f the Court came tc the conclusion that rule 73{b)(x) in 1ts present form contravenes sub-section 140(1) of the Act, the proceedings should be adjourned until after the next meeting of the federal council of the association which 1s to take place in the middie of April 1981. In those circumstances I adjourn thece proceedings until Tuesday, 5 May 1981 for the purpose of giving the association an opportunity to alter its rules. I reserve liberty to any party to apply upon seven days notice to any opposite party. a ne I certify that this and the 25 precuding peges are a true copy of the Reasons ror Julement herein ¢ rhais Houeur sisee K&E4Y haglhe— Assoc1ate Datea: 4% /12/F0 re A