IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION JUDGMENT No. .2.10...../...22.. ) ) No. 19 of 1980 ) ) IN THE MATTER of the Concitiation and Arbitration Act, 1904 AND IN THE MATTER of an alteration of the rules of the AIRLINE HOSTESSES' ASSOCIATION, an organization of employe registered under the said Act AND IN THE MATTER of a reference by the Industrial Registrar pursuant to s.112 of the said Act of questions of law for the opinion of the Federal court of Australia JUDGES MAKING ORDER: Bowen C.J., Smithers, J.B. Sweeney, Evatt and Northrop JJ. DATE OF ORDER: 1 October, 1980 WHERE MADE: Melbourne THE COURT ORDERS THAT the questions referred be answered as follows: (1) (2) Do the rules set out in the reference provide for the election of the holder of each office (as defined in s.4) within the organization as required by s.133(1)(a) and reg. 115(1)(d)(i)? Answer: Yes ite In particular: (a) Do rules 27 and 41 contravene s.133(1)(a) and reg. 115(1)(d)(i} insofar as those rules appear to provide that persons elected to be Federal officers shall, without any further election, also be members of the Federal Council and Federal Executive? Answer: No (3) (b) Does rule 27 contravene s.133(1)(a) and reg. 115(1)(d) insofar as that rule appears to provide that persons elected to be Branch President and Branch Secretary shall, without any further election, also be members of the Federal Council? Answer: No (c) Does rule 41 contravene s.133(1)(a) and reg. 115(1)(d) insofar as that rule appears to provide that a person elected to be Branch President shall, without any further election, also be a member of the Federal Executive? Answer: No Do the said rules satisfy the relevant requirements of paragraphs (a) and (c) of s.140(1)? Answer: So far as the requirements of paragraph (a) of s.140(1) are concerned, yes. So far as the requirements of s.140(1)(c) are concerned, not answered IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. 19 of 1980 ) ) INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an alteration of the rules of the AIRLINE HOSTESSES' ASSOCIATION, an organization of employees registered under the said Act AND IN THE MATTER of a reference by the Industrial Registrar pursuant to s.112 of the said Act of questions of law for the opinion of the Federal Court of Australia CORAM: Bowen C.J. Smithers J. J.B. Sweeney J. Evatt J. Northrop J. 1 October 1980. REASONS FOR JUDGMENT BOWEN C.J.: These proceedings were brought under s.112 of the Conciliation and Arbitration Act ("the Act") by the Industrial | Registrar in referring a question of law for the opinion of the Federal Court. The question arose when the Airline Hostesses' Association, an organization of employees registered under the Act, applied under sub-s.139(4) of the same Act to alter its rules. Before any rule change can be effected the Registrar must certify where his consent is not required that, inter alia, the alterations comply with the provisions of the Act. The proposed alterations relate to the election of holders of offices in the Association. The basic question to be. answered by this Court is whether the provisions of the Act permit a structure in an organization whereby an elected office holder may, by the rules of the organization at the time of his (or her) election, be, by virtue of that election, the holder of another "office" as defined under the Act. The proposed rules provide for a federal structure in the Association. Each member is to belong to a State or Territory or overseas Branch with its own committee of management and officers and which will be represented on the supreme governing body, the Federal Council. Under r.21 the Federal Council has power, inter alia, to superintend, manage and control the Association's affairs, property and funds, make, amend or rescind rules, and delegate such of its power as it thinks fit, save the power to amend or rescind rules, to the Federal Executive. Provision is made for a Federal Executive which is the committee of management responsible for control and conduct of the business and affairs of the Association whilst Federal Council is not in" S8@ssion. The Council is to meet annually whereas the Executive must meet at least every four months. I turn to the form of the proposed rules. By r.27 the Federal Council is to be composed of: "(a) the Federal Officers who shall be the Federal President, the Federal Vice President and the Federal Secretary; (b) Branch delegates who shall be the President and Secretary of each Branch; (c) additional delegate or delegates from a Branch or Branches on the following basis: Branch Membership Representative 200-399 1 400-599 2 600 and over 3" By 1r.4l1 the Federal Executive will consist of the following: "(i) Federal President; (ii) Federal Vice President; (iii) Federal Secretary; (iv) the occupier for the time being of the position of Branch President of each Branch or her proxy." The Federal President, Federal Vice President and Federal Secretary as the "Federal Officers" of the Association are to be elected for two years by secret postal ballot of all financial members of the Association eligible to vote (r.55). The Branch Presidents and Secretaries are to be elected by all financial members of their respective Branches (Branch r.2) as are the delegates to Federal Council (r.28). The rules also provide for ultimate control of the decisions of the Federal Council (r.38) and Federal Executive (r.50) by a majority of the financial members of the Association voting by plebiscite called on a motion of at least half the number of Branch Councils or 5% of the financial members. It appears from the above that the three Federal Officers by virtue of their election are made members of the Federal Council (a policy/management body) and of the Federal Executive (the committee of management). Similarly, the Branch President and Secretary are ex officio members of the Branch Council (a Branch committee of management) and Federal Council and the Branch Presidents also are members of the Federal Executive. In his reference, the Industrial Registrar drew the attention of the Court to a number of provisions of the Act. Paragraphs (a) and (c) of sub-s.140(1) of the Act read: "(1) The rules of an organization - (a) shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law; (c) shall not impose upon applicants for membership or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust." By sub-s.4(1): "'Office', in relation to an organization or branch of an organization, means — (a) the office of a member of the committee of management of the organization or branch; (aa) the office of president, vice-president, secretary, assistant-secretary or other executive officer, by whatever name called, of the organization or branch; (b) the office of a person holding, whether as trustee or otherwise, property of the organization or branch, or property in which' the organization or branch has any beneficial interest; (c) 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 empowered to make, alter or rescind rules or to enforce, or perform functions in relation to the enforcement of, rules or to exercise any of the functions of management; (d) every office within the organization or branch for the filling of which an election is required to be conducted within the organization or branch." It is clear from the above that the Federal Officers in the proposed rules occupy more than one "office" as defined, as also do the Branch Presidents and Secretaries. Sub-section 132(2) provides: "132(2) The conditions to be complied with by associations so applying for registration and by organizations shall be as prescribed." The relevant conditions are those prescribed by reg.115, the material portion of which is as"follows: "(1) The following conditions are prescribed conditions to be complied with by an association applying for registration, namely: (d) the affairs of the association shall be regulated by rules ... providing, in relation to the association, for - (i) the election of - (a) a committee of management of 'the association and of each branch of the association; (b) officers of the association and of each branch of the association; and (c) any conference, council, panel or other body (additional to the committee of management) which is empowered to determine policy or to exercise functions of management in the association or branch. (2) The conditions specified in the last preceding: sub-regulation apply in relation to organizations in like manner as they apply in relation to an association applying for registration as an organization." Paragraph 133(1)(a), in so far as it is relevant, reads: "(1) In addition to the conditions referred to in sub-section (2) of section 132, the conditions to be complied with by ... organizations include a condition that the rules of ... organizations: (a) shall provide for the election of 'the holder of each office within the ... organization either by - (i) a direct voting system; or (ii) a collegiate electoral system being, in the case of an office the duties of which are of a full time nature, a one tier collegiate electoral system." In the recent decision of the Full Court of the Federal Court in Sherrif v. Townsend, handed down on 3 April 1980, the majority dicta expressed fully by Smithers J. considered that a member of an organization of employees elected to a designated executive office and acceding by virtue of the rules to the office of member of Federal Council had not been elected to the latter office in accordance with the Act. Smithers J. considered that the legislation envisaged "a separate election, direct or collegiate, for each office in the organization". He added that: "When a rule provides that a person elected to a particular office shall thereupon accede to another office the electorate is denied a choice as to whether it desires that that person shall hold that other office." The implication is that each office in the exhaustive list of offices in s.4 is separate and must be the subject of an election. In Sherrif v. Townsend, supra, this reasoning was not necessary for the ultimate decision because the rule in question was held on other grounds to be invalid. However, the analysis by Smithers J. raises important questions. At the hearing, Counsel appeared on behalf of the Airline Hostesses' Association and was given leave to appear on behalf of members of the Australian Council of Trade Unions and the Commonwealth of Australia Government Employees' Organizations. Counsel was also granted leave.to represent the Vehicle Builders Employees' Federation. The Registrar was not represented, the Crown did not intervene but briefed Counsel to appear as amicus curiae to assist the. Court in some wider aspects and implications of the argument. It was submitted by Counsel for the Airline Hostesses' Association that the repercussions of any decision requiring a separate election to each office as defined would be enormous. Not only would a great number of organizations find their rules suddenly invalid but such an interpretation could only mean that union members were entitled to elect a different person to each office. If such a situation occurred, organizations would find it almost impossible to maintain lines of communication within their federal systems and be unable to function efficiently as representative bodies. Whilst it is true that there could be great inconvenience to many organizations, the reference is on a question of law and it is necessary to look at relevant provisions of the Act in the context of the Act as a whole and the cases that have arisen. Looking at the matter in this way, I find myself unable to accept that the legislature intended that each "office" as defined should be the subject of a separate election. Further, I cannot agree that if the Act did require such an election it would be satisfied by a ballot paper enumerating a number of offices as a composite position for which nominated candidates were standing. If offices are necessarily separate, members must be able to nominate a separate candidate for each. I am unable to see that reg.115(1)(d)(i) implies any notion of mutual exclusivity between offices. In fact, it seems to me to be simply grouping functions into the various classes such as one would need to find in a federal system. In the case of Bicknell v. Amalgamated Engineering Union (1969) 15 F.L.R. 215, reg.115(1)(d)(i) was discussed extensively along with s.140, though no mention was made of the then current s.133. The Court was there concerned with an organization the rules of which had undergone radical restructuring. In this reconstruction it was proposed that certain elected District Secretaries be appointed as the first State Secretaries for the period of time they still had left to serve in their previous elected offices. The rules under discussion were substantially the same as those presently before the Court. It is apparent from the discussion (at pp.218-219) that the Court was fully aware that the duties of State Secretary included that he be ex officio a member of State Conference and State Council. However, no point arose in that case as has arisen before us. There is no doubt that in compliance with reg.115(1)(d) (i) the proposed rules provide for elected officers and committee of management at the Federal and Branch' levels and for a policy/management body at the Federal level. It is only by reference to the definition of "office" that one finds each of these functions referred to as "offices". The definition of "office" indeed is singularly unhelpful because of its intended exhaustive nature and the fact that it defines "office" by referring to "office". Furthermore, it appears that paragraph (d) of the definition overlaps with other paragraphs. -10- Some support for the notion of separateness is said to arise from the use of the word "each" in para.133(1)(a) which was first introduced in 1973 and later amended in 1976. It reads that the rules "shall provide for the election of the holder of each office ...". Counsel for the various associations argued that the emphasis must be put on the election of the "holder", not the election to each office. On a consideration of the Act and cases I agree that this must be so. The terms of sub-s.133(1A) inserted at the same time as a new sub-s.133(1) by Act No. 138 of 1973 also tend to support that view. This last consideration is not weakened by the deletion of sub-s.133(1A) and the insertion of a new para.133(1)(a) by Act No. 117 of 1976. The objects of the Act are enumerated in s.2. Among them are the following: "(e) to encourage the organization of representative bodies of employers and employees and their registration under this Act; and (£) 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." Counsel took the Court through the various stages of amendment to the parts of the Act with which we are concerned and it was noted that elections were not a feature until 1928. The problem of what actually constituted an election under the Act was solved in favour of including collegiate electoral systems in Steele v. Federated Ironworkers' Association of Australia (1954) 52 C.A.R. 594. Such systems were common up to 1973, abolished and then reinstated in 1976. Until 1973 the section dealing with elections, s.70A, which was renumbered s.133 in 1956, concentrated on secret - ballots, absent voting and conduct of elections. It only applied to sub-paras.(a), (aa) and (b) of the definition of "office" as it stood at the time, leaving the conduct of elections under sub-para.(c) open. I do not think that before the 1973 amendment to s.133, there was any question of a _ separate election for each office. I believe that the intention of the 1973 amendment including "each" in reference to office, was merely ensuring that the rules governing elections now applied to all the sub-paragraphs in the definition of "office". This belief is reinforced on reading para.133(1)(da) where provision is made for postal voting in relation to "every election for an office within the association of a kind referred to in para.(a), (aa), (b) or (c) of the definition of office". There is no mention of ""each" office, because sub-para.(d) of this definition is not included. What must be kept constantly in mind is that organizations registered under the Act may represent many thousands of members all over Australia. These-members must be represented democratically but also efficiently and because of the division of Australia into States and Territories, a federal system of representation would be normal. The Courts have frequently considered various types of federal systems and from the cases it is clear that organizations are able to design specific structures with different checks and balances to cater for their own individual needs. The only parameters are those embodied in reg.115 requiring election for a committee of management, various officers and any other policy making or management body. As was said in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72 at p.81, per Smithers and Evatt JJ.: "A constitution suitable for one union may be unsuitable for another ... The rules must be designed to ensure stability in management and at the same time to avoid installing officers who cannot be removed. In the designing of rules appropriate for an organization of employees much must be left to the judgment of those who make the rules." (And see generally Lovell's Case, supra at pp.89 and 98; and Wiseman Vv. Professional Radio and Electronics Institute of Australasia (1978) 35 F.L.R. 24 at pp.32-35 and 38-42.) It has been held on a number of occasions that filling a casual vacancy by appointment is permissible in certain circumstances (Cameron v. Australian Workers' Union (1959) 2 F.L.R. 45; Purse v. Amalgamated Society of Carpenters and Joiners of Australia 75 C.A.R. 88; Watson v. Australian: Workers' Union 10 F.L.R. 347). Some associations have validly imposed length of membership requirements for office holders (Watson v. Australian Workers' Union, supra; Lovell v. Federated Liquor and Allied Industries Employees Union of Australia, supra) and in some cases federal representation for smaller States greater than would be justified on a mere consideration of their size, has been permitted, where there was provision in certain circumstances for a plebiscite (Crealy v. Commonwealth Bank Officers' Association (1958) 1 F.L.R. 153; cf. McLeish v. Kane (1978) 22 A.L.R. 547; Boland v. Munro, Federal Court of Australia, 23 May 1980, unreported). In Crealy's Case, supra, at pp.157-158, the Court adopted the opinion of O'Mara J. in Thornton v. Mackay (1945) 56 C.A.R. 561 at p.590 in relation to the scope of an organization under the Act to alter its rules: "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 of that body and the circumstances which exist in relation to its membership. The same is true of the provisions for the control of such committees by members of the association." In the case of Bicknell v. Amalgamated Engineering Union, supra, the Court considered that, in the circumstances, appointment of elected District secretaries to be the first State Secretaries was permissible because the rules as a whole provided for the election of persons and bodies referred to in reg.115(1)(d). Kerr J. commentéd™ (at p.230) that whether rules provided for the election of offices was "a matter of degree to be judged in all the circumstances of the particular union and its rules". It was submitted by Counsel that each organization should be able to determine its structure by providing for composite offices in the rules so long as the holder of those offices were elected. Thus, the rules could provide that the position of Branch President carried with it certain functions such as member of the Branch Council, Federal Council and Federal Executive. Counsel appearing as amicus curiae pointed out that, if carried to extremes, this could be dangerous. The rules could give not only executive officers ex officio appointments, but officers whose functions would normally be considered narrow. Even if this were possible, I do not doubt that para.140(1)(c) and sub-s.139(4) could be used against it effectively to prevent an inappropriate conjunction of positions. One must look again to the definition section of the Act; to the definitions of "direct voting system" and "collegiate electoral system". In conjunction with these one must also read sub-s.4(5). The definition of direct voting system in sub-s.4(1) is as follows: "'Direct voting system', in relation to an election for an office in an organization, means a method of election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as is appropriate, having regard €6 the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote." Thus, each office must have an appropriate electorate depending upon the nature of the office. This does not seem to me to preclude a Branch electing a President both as its head and its representative at the federal level. The nature of the office is Branch Executive and delegate to Federal Council and Executive. In a federal system branches' interests must be represented. Thus, the nature of an office in a federal system will often require a branch electorate because the functions are basically branch representation though the elected officer sits in a federal governing body. Indeed, I would consider that rules requiring a Branch delegate to the Federal Council or Executive to be elected by the whole Federal membership might well be held unreasonable in terms of para.140(1)(c) (cf. Allen v. Townsend (1977) 31 F.L.R. 431 at p.471). Moreover, the Act specifically provides that in relation to election for an office in an organization a one tier collegiate electoral system is permissible. By sub-s.4(1) a collegiate electoral system is defined as follows: Collegiate electoral system' in relation to an election for an office in an organization means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from the persons elected at the next preceding stage." Sub-section 4(5) expands this definition: "For the purposes of the application of the definition of 'collegiate electoral system' in sub-section (1) in relation to an election for an office in an organization, an electoral system that otherwise complies with that definition shall be deemed to comply with that definition notwithstanding that the persons comprising a body of persons by and from whom persons are elected at any stage subsequent to the first stage include persons (not exceeding in number fifteen per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may include the office to which the election relates) but are not members of that body by virtue of an election in accordance with that definition, being persons each of whom has held such an office (whether the one office or not) at all times since being elected to such an office under a collegiate electoral system, or a direct voting system, as defined in sub-section (1)." The Act recognises that persons elected to particular offices may be ex officio members of a body "by and from whom persons are elected". This body is not called a committee of management and, indeed, if it fulfilled simply the function of an electoral college its members could not be said to hold ex officio "offices" on such a_ body. However, as I have previously stressed, the Act envisages that organizations have a great deal of latitude in determining their structure. There is no indication that a body by and from whom persons are elected should not be a committee of management or other policy or management body. Indeed, it seems to me that the section is directed at a body which already exists and functions apart from any electoral college activity. It would have been simple, otherwise, to..keep to the definition of "electoral college" as it stands. Moreover, reg.115 requires that each organization and branch of an organization provide for the election to any policy making and management bodies as well as a committee of management. I consider that implicit in sub-s.4(5) is a recognition of a fairly typical organizational structure whereby some elected officers by virtue of their election sit in a body which functions not only as an electoral college but also as a body within one or other of sub-paras.(a) and (c) in the definition of "office". If this is the case, there can be no objection to such ex officio membership of management and policy bodies in a union, the rules of which provide only for direct election. On this basis a differentiation can be made between office holders: those who are primarily elected to a body and those who are primarily elected to an executive position. Those in the latter category may, under the rules, be members of a_ body. I do not think it oppressive, unreasonable or unjust under para.140(1)(c) in this case that Federal Officers be, by their election to those offices, members of the Federal Council and the Executive. Indeed, rules which provided that 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 bodies. I consider such rules might well be held to be unreasonable in terms of | para.140(1)(c). cranny The general tenor of the Act is to provide representative bodies for the purposes of keeping industrial peace. The reality is a federal system and vast and far flung memberships. The whole financial membership elects four persons as its Federal Officers to handle day to day business and report to the larger Federal Council. The Branches are ensured of representation at all federal levels by persons elected both specifically to Council and generally .as chief executives at the highest level. The extent of the offices are explained in the rules which are readily available to all members. I would answer the question of the Industrial Registrar as follows: 1. Do the rules set out above provide for the election of the holder of each office (as defined in s.4) within the organization as required by para.133(1)(a) and regulation 115(1)(d) (i)? Answer: Yes. 2. In particular: (a) Do rules 27 and 41 contravene para.133(1)(a) and regulation 115(1)(d)(i) in so far as those rules appear to provide that persons elected to be Federal Officers shall, without any further election, also be members of the Federal Council and Federal Executive? > Answer: No. oe ane (b) Does rule 27 contravene para.133(1)(a) and regulation 115(1)(da)(i) in so far as that rule appears to provide that persons elected to be Branch President - 19 - and Branch Secretary shall, without any further election, also be members of the Federal Council? Answer: No. (c) Does rule 41 contravene para.133(1)(a) and regulation 115(1)(d)(i) ain so far as that rule appears to provide that a person elected to be a Branch President shall, without any further election, also be a member of the Federal Executive? Answer: No. Do the said rules satisfy the relevant requirements of paragraphs (a) and (c) of sub-s.140(1)? Answer as to (a): Yes Answer as to (b): There is nothing before us to suggest the rules do not satisfy para.(c). Icertify that this and the (5 ~ preceding pages ave a true copy of the Reasons for Juazme: vein ofhis Honoyr the Chief Judge, Sir Nigel Bowen " "~~*tssociate ; Dated /. yo. $5 2] IN THE FEDE yy AL COURT OF AUSTRALIA ) No. 19 of 1980 VICTORIA DISTRICT REGISTRY were wv INDUSTRIAL DIVISION IN THE MATTER of an alteration of the Rules of the AIRLINE ROSTESSES' ASSOCTATION an organization of employees registered under the CONCILIATION AND ARBITRATION ACT, 1904 REFERENCE BY THE INDUSTRIAL REGISTRAR (pursuant to Section Ti2 of the Conciliation and Arbitration Act 1904) of guestions of law for the opinion of the Federal Court of Australia. NORTHROP J. REASONS FOR JUDGMENT 1_ OCTOBER 1980 I have had the advantage of reading the reasons for judgment of the Chief Judge and J.B. Sweeney J. and I agree with the opinions expressed in those reasons. Nothing put in argument during the hearing of the reference and nothing arising from further reflection persuades me to vary the views I expressed on this issue in Sherriff v. Townsend (1980) 30 A.L.R. 223 at pp.253-255, but I would make the further commmente. The nature of crgqanizations has been referred to in a number of recent decisions of the Federal Court, and I refer to some of them; Allen v. Townsend (1977) 31 F.L.R. 431 per Evatt and Northrop JJ. at p.467, Wiseman v. Professional Radio and Electronics Institute of Australasia (1978) 35 F.L.R. 24 per Evatt and Northrop JJ. at pp.38-42, Lovell v. Federated Liguor and Allied Industries Empicyees' Union of Australia (1978) 35 F.L.R. 72 per Smithers and Evatt JJ. at p.8l and per Northrop J. at pp.93-9, McLeish v. Kane (1978) 22 A.L.R. 547 per J.B. Sweeney, Evatt and Northrop JJ. at pp.556-9, Sherriff v. Townsend, Supra, per Northrop J. at pp.256-7 and Boland v. Munro 23 May 1980 per Evatt and Northrop JJ. at pp.16-22. Regulation 115(1)(d)(i) does not prescribe methods by which elections are to be conducted. In that sub-paragraph the word "election" is used in contradistinction to the word "appointment", see Porter v. A.F.U.L.E. (1965) 7 F.L.R. 386 per Spicer C.J., Joske and Smithers JJ. at 398-9. The word "appointment" was the word used in the equivalent provisions contained in Schedule B to the 1904 Conciliation and Arbitration Act. In the Regulations from the time they were first made in 1913 until 1928, the equivalent provisions contained neither the word "appointment" nor the word "election". The methods by which elections are to be conducted are prescribed in the Conciliation and Arbitration Act 1904 as amended, see ¢.133 and s.133AA, although certain of the sub-sections of s.133AA are not yet in operation. The provisions of the Act prescribing the methods by which elections are to be conducted have been amended from timg to time. The substance of the amendments made in 1973 {Act No. 138 of 1973, s.52), was to proscribe the collegiate electoral system as a method by which elections could be conducted but those amendments still permitted a limited type of collegiate electoral system. Between 1973 and 1976, s.133(1A) contained expressions based on the assumption that the rules of an organization validly could provide that a holder of an office by reason of being the holder of that office could be a member of the committee of management of the organization. The substance of the amendments made in 1976 (Act No. 117 of 1976, sections 3 and 4) was to widen the type of collegiate electoral system which thereafter was to be permitted. Section 133(1A) was deleted and s.4(5) was inserted. The latter sub-section ccntains expressions which make it clear that Parliament acted upon the view that under the legislation and regulations then in force, rules of an organization validly could provide that a person, by reason or being the holder of an office, covld be a member of a committee of management of the organization. In describing the body which, under a collegiate electoral system elected persons to office, the sub-section provided that the rules could include a provision that persons "who are the holders of offices entitling the holders to membership of that body". For many years the Commonwealth Court of Conciliation and Arbitration, the Commonwealth Industrial Court and the Federal Court of Australia have given judgments based on the view that in Regulation 115(1) (d) (i) the word "election" is used in centradistinction to the word "appointment" and does not prescribe methods by which elections are to be conducted. On at least two occasions, namely in 1973 and 1976, Parliament has passed legislaticn based upon the acceptance of that view. In my opinion, that view of the effect of Regulation 115(1) (ad) (i) is correct. The rules of the Airline Hestesses' Associati oO n Make provision for committees of management of the Asscciation, for federal officers of the Association and for a federal council empowered to determine poJicy, which council is also a committee of management within the defined meaning of that phrase. The rules of the Association provide that the members of the committees of management are persons who are the holders of offices within the defined meaning of that word entitling them to membership of the committees of Management. The rules of the Association define those persons by reference to them being the holders of federal offices and the holders of offices being branch delegates. Two of the branch delegates from each branch are the branch officers for each branch of the Association. The rules of the Association provide fer the holder of each of those offices, within the defined meaning of that word, to be elected to those offices by a method which is not contrary te the Conciliation and Arbitration Act. None of those persons has been appointed to the office held. It follows therefore that the rules of the Asssociation make provision for the election of the committees of management and of the officers of the Asscciation. They dc not make provision for the appointment of committees of management and of the officers of the Association. In this respect the rules of the Association are not contrary to Regulation 115(1) (d) (i). I agree with the answers proposed by the Chief Judge. > IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. 19 of 1980 INDUSTRIAL DIVISION IN THE MATTER of an alteration of th Rules of the Airline Hostesses' Association an organization of employees registered under the Conciliation and Arbitration Act, 19 REFERENCE BY THE INDUSTRIAL REGISTRA (pursuant to Section 112 of the Conciliation and Arbitration Act, 19 'of questions of law for the opinion of the Federal Court of Australia. REASONS FOR JUDGMENT EVATT J. 1 October 1980 The reference herein by the Industrial Registrar made pursuant to s.112 of the Conciliation and Arbitration Act, 1904 (the Act) raises questions of law for determination by the Court in relation to certain rule amendments adopted by the Airline Hostesses' Association an organization registered under the Act. Basicaly the questions for determination are; do such rule amendments satisfy the requirements of s.140(1) (a) and s.140(1)(c) of the Act? Such rules appear to provide (1) that persons elected to be Federal Officers shall without any further election be members of thé Federal Council and Federal Executive, (2) that persons elected as Branch President and Branch Secretary respectively shall without further election be members of the Federal Council and (3) that persons elected as Branch Presidents shall without any further election be members of the Federal Executive. Do ~-/2.. such rules provide for the election of the holder of each office (as defined in s.4 of the Act) within the organization as required by s.133(1)(a) of the Act and Reg. 115(1)(a) (i) made thereunder. The particular rules are fully set out in the reasons for judgment of Sweeney J., which I have had the advantage of reading. Further, relevant sections of the Act are set out in the reasons for judgment of Bowen C.J. which I have also had the advantage of reading. In Sherriff & Ors. v. Townsend & Ors. (V. No.12 of 1979) (inter alia) , o, 30 A.L.R. 223 a challenge was made/to the certified rule providing for the composition of the Federal Council of the Vehicle Builders' Employees Federation of Australia an organization registered under the Act. Rule 1(b) of the rules of that organization provided: "l(b) The Federal Council shall consist of : (i) Two delegates from each Branch elected as prescribed in Rule 4 neither of whom shall be the Secretary of such Branch. (ii) The Secretary for the time being of each Branch of the Federation; (iii) The Federal Secretary of the Federation; (iv) The Assistant Federal Secretary of the Federation." The claimants' challenge to the rule was, for relevant discussion, two-pronged; first, that sub-rule 1(b) (i) created an invalid imbalance in the number of delegates to Federal Council from Branches, the membership of which varied from Branch to Branch and accordingly contravened s.140(1)(c) of the Act (see McLeish v. Kane (1978)22 A.L.R. 547) and secondly, that sub-rule 1(b)(ii) permitted a Branch Secretary, although ..-/3.. elected to that office, to be a member of the Federal Council without being elected a Councillor as required by s.133(1) (a) and/or Reg.115(1)(d)(i) and accordingly contravened s.140(1)(a) of the Act. The Court in that case unanimously held that, in accordance with the principles referred to in McLeish v. Kane(supra the whole of r.1(b) providing for the constitution of that Federal Council was contrary to s.140(1)(c) for the reasons therein expressed in respect of the orders sought in paras. 4, 5 and 6 of the rule to show cause. In Sherriff v. Townsend (supra) I stated @ p.246:- "Paragraphs 9, 10 and 11 (of the rule to show cause) seek orders that r.1(b)(ii) contravenes s.140(1)(a) of the Act in that such sub-rule provides that the secretaries of the various branches of the organization shall be members of its Federal Council without any of such secretaries being elected within the meaning of the Act and Regulations thereunder, to hold the office of a Federal Councillor. I have already expressed the view that r.1(b)(ii) is contrary to s.140(1)(c) as being contrary to the principles set out in McLeish v. Kane(supra) if r.1(b)(i) is struck out, but having regard to the proposed scheme approved by the court under s.171D of the Act, and as grounds 9, 10 and 11 were fully argued the court's view thereon should be stated. I am of the view that such sub-rule is contrary to s.140(1)(a) and agree with the reasons for judgment in this regard of Smithers J." The questions set out in the present reference have raised in more detail the issues raised in paragraphs 9, 10 and 11 of the rule to show cause in Sherriff v. Townsend (supra). Having had the benefit of the detailed submissions concerning the. history of. the relevant sections of the Act, Schedule B and the Regulations made under the Act together with further argument thereon, it is fa clear, in retrospect, that the issues raised in the said paras. 9, 10 and 11 in this regard had not been fully argued other than by the claimants therein. Those claimants, through their legal advisor, were given an opportunity to further argue the issue before this Court but such opportunity was apparently declined by them as they made no request for leave to intervene herein. The submissions and arguments of Counsel in this reference have persuaded me that the dicta expressed by me in Sherriff v. Townsend (supra) that rule 1(b)(ii) of the rules of the Vehicle Builders' Employees Federation of Australia did not accord with the provisions of s.133(1)(a) and/or Reg.115(1)(d) (i) and consequently contravened s.140(1)(a) of the Act is incorrect. I entirely agree with the reasons for judgment of Bowen C.J. and Sweeney J. herein. I further agree that the answers to the questions asked by the Registrar should be in accordance with those set out in the reasons for judgment of Bowen C.J. z i os, a VATT wroin of nis ee IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. 19 of 1980 INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an alteration of the rules of the AIRLINE HOSTESSES' ASSOCIATION, an organization of employe registered under the said Act AND IN THE MATTER of a reference by the Industrial Registrar pursuant to s.112 of the said Act of questions of law for the opinion of the Federal Court of Australia CORAM: Bowen C.J. Smithers J. J.B. Sweeney J. Evatt J. Northrop J. 1 October, 1980 REASONS FOR JUDGMENT J.B. SWEENEY J. This is a reference by the Industrial Registrar of certain questions of law. The questions have arisen on an application by the Airline Hostesses' Association ("the Association") for certification of a new set of rules pursuant to s.139(4) of the Conciliation and Arbitration Act, 1904 ("the Act"). The particular proposed rules in question are rules 27, 41 and 55(a) which read: 2. 27. FEDERAL COUNCIL COMPOSITION The Federal Council shall be composed of: (a) the Federal officers who shall be the Federal President, the Federal Vice- President and the Federal Secretary. (b) Branch delegates who shall be the President and Secretary of each Branch. (c) additional delegate or delegates from a branch or branches on the following basis:-—- Branch Membership Representative 200 - 399 1 400 - 599 2 600 and over 3 41. COMPOSITION OF FEDERAL EXECUTIVE The Federal Executive shall consist of the following: (i) Federal President (ii) Federal Vice-President (iii) Federal Secretary (iv) the occupier for the time being of the position of Branch President of each Branch or her proxy. 55. ELECTION OF FEDERAL OFFICERS ~- GENERAL (a) Elections for the position of Federal President, Federal vice-president and Federal Secretary shall be conducted by secret postal ballot of all finan- cial members of the Association eligible to vote, in accordance with these rules. There are also proposed branch rules which raise the same questions. The particular questions referred to are: (1) Do the rules set out above provide for the election of the holder of each office (as defined in section 4) within the organization as required by section 133(1)(a) and regulation 115(1)(d) (i)? (2) In particular: 3. (a) Do rules 27 and 41 contravene section 133(1)(a) and regulation 115(1)(d)(i) in so far as those rules appear to provide that persons elected to be Federal officers shall, without any further election, also be members of the Federal Council and Federal Executive? (b) Does rule 27 contravene section 133(1)(a) and regulation 115(1)(d)(i) in so far as that rule appears to provide that persons elected to be Branch President and Branch Secretary shall, without any further election, also be members of the Federal Council? (c) Does rule 41 contravene section 133(1)(a) and regulation 115(1)(d)(i) in so far as that rule appears to provide that a person elected to be Branch President shall, with- out any further election, also be a member of the Federal Executive? (3) Do the said rules satisfy the relevant requirements of paragraphs (a) and (c) of section 140(1)? The scheme of the Act provides for the registration of organizations which thereupon become corporations. 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 addition there are various other provisions in the Statute prescribing in some cases what must be, in other cases what may not be provided for in the rules. In general, however, the particular structure which it wishes to adopt is left to the organization concerned. This perhaps is inevitable having regard to the vast disparities and differences in size, geographical areas covered and other matters between organizations. 4, At the hearing before us the Australian Council of Trade Unions sought and was given leave to appear by counsel for its constituent bodies. We were advised that the great majority of organizations had rules which provided, as did rules of the Association, for persons elected to particular offices to be members of the committee of management and of other councils or conferences of the organization. The particular examples varied, but the general pattern appeared to be that a committee of management would comprise persons elected as general secretary, general president and the like and a number of delegates from the branches. Mutatis mutandis similar provisions exist for branches. Some other organizations appeared and we also had the benefit of submissions made by counsel for the Attorney-General of Australia appearing as amicus curiae. 'The hearing of the reference was listed before a bench of 5 judges in view of the importance of the issues. It is convenient next to set out the structure of the Association and to examine the proposed rules against that background. The Association is an organization arranged in branches. It has members and branches throughout the Commonwealth. As required by s.132 and reg. 115, its rules if certified will provide for a committee of management of the Association and each branch, for officers of the Association and of each branch and for a council, additional to the committee of 5. management, empowered to determine policy and exercise functions of management. The federal officers are the federal secretary, federal president and the federal vice-president. The duties and powers of the federal secretary provide that she is to attend all meetings of federal council and federal executive and she has other duties in respect to them. She also has duties with respect to property of the Association including a duty to deliver up to the federal president on vacating office, or when so directed, all books, documents, papers and other property of the federation. The rules also prescribe that 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 vice-president shall preside at meetings in the absence of the federal president whether for the whole or part of a meeting and that she shall assist the federal president in the conduct of and preserving order at meetings. The rules provide for a federal executive which is to be the committee of management of the Association (rule 40). It is to have the care, control, superintendence, management and administration of the affairs and property of the Association. It is to interpret and enforce the general policy of the Association as decided by federal council and decide 6. questions of policy not covered by federal council decisions. The federal executive is to consist of the federal president, 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 and the federal vice-president, the president and secretary of each branch and an additional delegate or delegates from a branch, (the number depending on the membership of each branch). The federal council meets annually, is the rule making body (rule 70 and 21(b)), has managerial functions (rule 21(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 by branch members. Each branch has a branch president, branch vice-president and a branch secretary, all of whom are elected by secret postal ballot of the branch members. In addition there are branch councillors the number of whom is to be determined by the branch, but will be at least 4 and not more than 17. They too are elected by secret postal ballot by members of the branch. The branch delegates to federal council additional to the president and secretary are elected by secret postal ballot of the branch members. The branch council has powers, 7. inter alia, to control, superintend and manage the affairs of a branch (branch rule 3). The branch secretary's duties prescribed are that she is to attend all general and council meetings of the branch and she has duties in respect to monies received by her and other property of the branch. The branch president's duties prescribed are that she shall preside over all general and council meetings of the branch and preserve order and give her a deliberative vote and if necessary a casting vote at any meeting (branch rule 4). The branch vice-president, in the absence of the branch president, is to preside over all meetings of the branch with full powers of the branch president (branch rule 5). It is clear then that the federal president, federal vice- president and federal secretary and like officers of a branch all hold office within the meaning of par.(aa) of the definition of "office". In addition, the federal officers hold office within the meaning of par.(a) of the definition as members of the committee of management of the organization. The branch officers hold office within the meaning of those paragraphs of the definition. -In addition, the federal secretary and branch secretary are persons holding, whether as trustee or otherwise, property of the organization or branch and hold office within the meaning of par.(b) of the definition. 8. It is clear from the rules that the federal executive is a committee of management within the definition of "committee of management" in 5.4 of the Act. In addition the federal council is, under the rules of the organization, empowered to make, alter or rescind rules, to enforce rules and to exercise any of the functions of management. So too is the branch council. Membership of each of these bodies then makes the person concerned an officer or the holder of an office within the meaning of par. (c) of the definition in s.4 of the Act. Moreover, since each of these offices is one within the organization or branch for the filling of which an election is required to be conducted within the organization or branch, each such person is an officer within the meaning of par. (d) of the definition of office. The reference made by the Industrial Registrar raises the question whether the amendments sought may offend against s.140(1) of the Act in that they may be contrary to or fail to make a provision required by s.133(1)(a) or reg. 115(1)(d) of the Act. In considering the questions referred to it is necessary to look at the history of amendments to this so frequently amended statute. Section 132 provides that the conditions to be complied with by associations seeking registration and by organizations shall be as prescribed. 9. Regulation 115(1)(d) has at all material times prescribed for each: ",.. that the affairs of an association must be regulated by rules providing for - (i) the election of - (A) a committee of management of the association and of each branch of the association: (B) officers of the association and of each branch of the association: and (C) any conference, council, panel or other body (additional to the committee of Management), which is empowered to determine policy or to exercise functions of management in the association or branch; In considering both the regulation and the relevant sections it is 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 following terms: "'office', in relation to an organization or branch of an organization means - (a) the office of a member of the committee of Management of the organization or branch; (b) the office of a person holding, whether as trustee or otherwise, property of the organization or branch, or property in which the organization or branch has any beneficial interest; and (c) every office within the organization or branch for the filling of which an election is conducted within the organization or branch;". Act No. 18 of 1951 added sub-section (aa) to the definitio. of "office": "(aa) the office of president, vice-president secretary, assistant-secretary or other executive officer, by whatever name called, of the organization or branch;" 10. This Act also introduced s.70A, the forerunner of s.133. Act No. 138 of 1973 omitted sub-paragraph (c) from the definition of "Office" and substituted the following paragraphs: "(c) 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 empowered to make, alter or rescind rules or to enforce, or perform functions in relation to the enforcement of, rules or to exercise any of the functions of management; "(d) every office within the organization or branch for the filling of which an election is required to be conducted within the organization or branch and any position within the organiz- ation or branch involving duties substantially similar to the duties of such an office: and "(e) in the case of an organization that was regist- ered immediately before the date of commence- ment of this paragraph or a branch of such an organization, every office within the organiz- ation or branch for the filling of which under rules in force immediately before that date, an election was required to be conducted within the organization or branch and any position within the organization or branch involving duties substantially similar to the duties of such an office;"; This Act also amended s.133. Act No. 117 of 1976 omitted pars. (da) and (e) from the definition of "Office" and substituted a new par. (d). "{d) every office within the organization or branch for the filling of which an election is required to be conducted within the organiz- ation or branch;"; il. This Act also amended s.133. In addition to the definition of "Office" it is helpful to consider the history of the present s.133. Its predecessor was inserted in the Act as s.70A by Act No. 18 of 1951. It provided that in 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 that the rules relating to an election specified in par. (a), (aa) or (b) of the definition of "Office" should provide that the election to an office be by secret ballot. It left open the question of the provisions to be made for an election coming within par. (c) of the definition. The word "each" was not used. In 1973 the section, by then renumbered s.133, was further amended. As already set out, the definition of "office" was materially altered by the same Act No. 138 of 1973 and one paragraph substituted and two new ones added to it. Section 133 as amended prescribed that the conditions to be complied with by associations seeking registration and by organizations should include a condition that the rules should provide for the election of the holder of each office by secret ballot of all members eligible to vote. It also provided in s.s. (1A) for cases where the rules of an organization provided for the filling of an office "being an office the holder of which is a member of the committee of Management but the duties of which are part-time". 12. In 1976 the section was again amended by Act No. 64 of 1976. This amendment inserted a new par. (1) (da) which provided that in the case of an association applying for registration after the commencement of the sub-section, the rules must provide that every election for an office of a kind referred to in par. (a), (aa), (b) or (c) should be by postal ballot. New s.133AA was also inserted, providing that elections to offices within pars. (aa), (b) or (c) of the definition of office in s.s.(1) of s.4 should be by secret postal ballot. By Act No. 117 of 1976 there were inserted new definitions of collegiate electoral system and direct voting system. There was also inserted an amendment of the definition of "Office" and a new sub-clause 5 was inserted in s.4. This sub-clause made provisions relating to the definition of collegiate electoral system, but referred to persons comprisin a body of persons by and from whom persons are elected to an office and referred to persons who are holders of offices entitling the holders to membership of that body. Section 133 was amended to require that the rules of an association applying for registration and an organization should provide for the election of the holder of each office by secret ballot of members or by a type of collegiate system. It also omitted s.s.(1A) of s.133. The questions asked by the Registrar appear to have been occasioned by the judgment of this Court in Sherriff v. Townsend, of 3 April 1980. In that case a particular proposed rule 13. providing that secretaries of branches and the federal and assistant federal secretary should be members of the federal council was considered. All members of the Bench held that the rule was invalid in that it provided for equal represent- ation of branches with very great differences in membership. smithers J. then proceeded to deal with another attack on that rule. He said: "The effect of the provisions of rule 1(b)(ii), (iii) and (iv) that the Branch Secretaries and Federal and Assistant Secretary shall be members of Federal Council is that each of the persons holding those offices is invested with an additional office, namely that of member of the Committee of Management namely, the Federal Council. The office taken by the person concerned can be filled only by that person. Never- theless the office that he takes is in all respects that of a member of the Committee of Management. And it is clear that the rules do not provide for the holding of an election of the person concerned to that office. They only operate to fill the office of a member of the Committee of Management when some person has been elected to another specified office. In effect the rules provide that the persons elected to the designated executive offices shall accede to the office of member of Federal Council without election thereto. The effect of the rule in question is to create a position on the council that is essentially an office and to prescribe that it will be filled without an election by a nominated person. It is not too much to say that the rule does the very thing which the statute and regulations are designed to avoid, namely the accession to any particular elective office by some means other than by election." Evatt J. without deciding the issue, expressed a view in agreement with the reasons for judgment of Smithers J., while Northrop J. was of the view that the second ground of attack on that rule was not made out. 14. The present matter has been much more fully argued before us and while I have given full and careful consideration to the judgment of Smithers J., on the point I find myself unable to agree with it. I turn first to reg. 115 and the question is whether that regulation, set out earlier in this judgment, requires separate elections in the manner I have set out later. The regulation has been in its present form for a very considerable time. There have been many instances of registered rules being considered by the Conciliation and Arbitration Court, the Commonwealth Industrial Court and this Court where such rules provided that persons elected to an office such as federal 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 Officers' Association, 1 F.L.R. 153; Mackenzie v. Administrative and Clerical officers' Association, Commonwealth Public Service, 5 F.L.R. 342; while two instances of its litigation in this Court are Egan v. Maher, 35 F.L.R. 197; McLeish v. Kane, 36 F.L.R. 80. While it is true that the specific point now raised was not taken in any of these cases, I do not think I should ignore this history. As was said by the High Court of Australia in The Queen v. Kirby and Others; Ex parte Boilermakers' Society of Australia, 94 C.L.R. 254 at 296: 15. "Such matters as judicial dicta, common assumptions tacitly made and acted upon, and the fact that legislation has passed unchallenged for a consid- erable period of time, may be regarded as raising a presumption which should prevail until the judicial mind reaches a clear conviction that consistently with the constitution the validity of the provisions impugned cannot be sustained. But they cannot be regarded as doing more." A like presumption should in my view operate when considering rules and their validity. They are questions which have long been litigated. In one other case Bicknell v. Amalgamated Engineering Union, 15 F.L.R. 215, the matter was more directly dealt with. Questions were argued as to the validity of certain rules of that organization. These rules were described as follows - "The rules as amended on lst October, 1968, create the office of State secretary, the holder of which is a member of State conference and State council. He is the executive officer of these bodies." "There is no express provision in the rules that the State secretary is a full-time officer but it seems clear that he must be. Rule 29(2) provides that he shall for all purposes be the main executive and administrative officer of the union in the State. He is entitled to attend and speak at any meeting of any branch and at any meeting of members in the State but shall have the power to move and second motions and to cast a vote only at meetings of his own branch, at the State conference and at meetings of State council. This rule clearly contemplated that he will be a member of State conference and State council. As secretary he is given a wide range of duties." The Court said of the then reg. 115(1)(d) - "Regulation 115(1)(d) does not in terms state that the rules shall provide that every office shall in all circumstances be filled by election. Accord- ingly a rule providing for an appointment in 16. special circumstances does not inevitably contravene the literal requirements of reg. 115(1)(d). Where there is such a rule the question is whether not- withstanding its presence it can be said of the organization that its affairs are regulated by rules which, looked at in their entirety, provide for the election of the specified bodies and officers." It added that the question was whether the rules looked at as a whole may fairly be said to provide for the election of the specified committee and officers. I agree with this view of reg. 115(1)(d). If the regulation is so interpreted in the manner I have indicated, the rules as proposed will provide beyond any doubt for election to particular offices, such as that of secretary, etc., and will also provide for the election of such of them as fall within par.(d) of the regulation. The rules will also provide for a committee of management consisting of those persons elected directly to it and persons elected to offices to which the rules attach powers and duties such as membership of the committee of management, the holding of property within the meaning of par.(b) of the definition and the membership of the bodies set out in par.(c) and (d) of the definition of "office" so far as the rules of the organization make provision for those bodies. The whole of the rules then seem to me to provide for the election of a committee of management and of officers and of conferences, etc. within the meaning of reg.115. In my view it cannot be said that the new rules would not provide as is required by reg.115 and they are not therefore in disconformity with s.140 of the Act. 17. Once it is accepted that the Act intends the organization to choose its own structure, subject to requirements spelt out in the Act and regulations, and once it is accepted that members have easy access to the rules of the organization, it seems to me fair to assume that at times of election they will certainly know the consequences of voting for a particular candidate for particular office. Section 188 of the Act provides that a member must be supplied with a copy of the rules on demand and payment of a small fee. They will know then that if they cast a vote which results in the election of a particular candidate to the office of general secretary, the rules provide that she will also be a member of certain bodies. There have been many cases involving in one way or another union elections. Having regard to the nature of the offices of federal president and secretary and branch secretary and president, and the fact that union elections are contested by groups of individuals rather than a lone individual, this assumption is in my view the real position within unions. I do not regard it as at all unreal to make such an assumption and I do not regard such a provision as so artificial to cause it to be looked at with suspicion. It has been suggested that where there was such a provision voters' considerations were not free since they might well consider any particular candidate a good administrator but not a good policy man or the reverse. The same objection might well be voiced in considering voters in a general election casting a vote. They may consider a candidate 18. suitable if the party he supported were in opposition but not in government or they may consider the reverse. Nonetheless they vote and are obliged to do so and make the best of an imperfect world. In my view the word "election", is used to describe a means whereby these various offices will be filled and it is used in distinction to the word "appoint". The Act originally required the rules to provide for the appointment of a committee of management and officers. In so doing it followed the language of the various Trade Union Acts then in existence in the various States. It was not until 1928 when the Act was amended to afford more powers of supervision of trade unions that the requirement to hold elections appeared. By the same amending Act No. 18 of 1928 the precursors of the present ss.140 and 141 were added. In my view the rules comply with 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 s.133. It was submitted in dealing with this section that s.133(1)(a), by the use of the phrase "the holder of each office" required that the committee of management be elected and that persons could not be members of the committe of management by virtue of their election to, for example, secretary. It is argued that the use of the word "each" in s.133(1)(a) and the use of the word "every" elsewhere in the rule emphasise that each office referred to is necessarily to be taken separately and in this sense it may be said there is 19. some ambiguity. I have therefore taken into account the history of the section. Prior to the amendment brought about by Act No. 138 of 1973 there seems to me no possibility that the section could have been so construed as to require separate elections. The amendment altered the previous provisions which had applied only to offices in pars.(a), (aa) and (b) of the definition by makinc them apply to all the offices in the definition. It did this by using the phrase "that the rules should provide for the election of the holder of each office". However, at the same time it added to the section, s.s.(1A) which referred to the filling of an office being an office the holder of which is a member of the committee of management. It seems to me that the sub-section clearly contemplated a position where the holder of an office is a member of the committee of management by virtue of his holding of that office. The word "each" I think, meant no more than "every". Its use was to emphasise that the provisions applied not to some only of the offices within the definition of office provided for in the rules of the organization but applied to all The next amendment was in 1976. Act No. 64 of 1976 inserte new par.(1)(da) which provided that, in the case of an associati applying for registration the rules must provide that every election for offices within 4 of the paragraphs of the definitio should be conducted by postal ballot. It did not use the word "each" and if the word "each" in s.133(1)(a) as amended in 1973 had the effect of requiring a separate election for each office, it is difficult to see why different provision is made for 20. associations applying for registration after s.133(1)(da) was enacted in 1976. The general scheme of the Act has always been to apply the same requirements to applicants for registration as to registered bodies and it is improbable that different provisions would be provided for an association if immediately upon registration a change would be required in the rules. After registration the Association would be an organization and required to have rules complying with s.133(1). The section was further amended in 1976 by Act No. 117 of 1976 and s.s.(1A) was deleted, but by the same Act a new sub-clause (5)(a) was inserted in s.4. This referred to persons who are holders of offices entitling the holders to membership of an electoral college and clearly contemplated that there will be such persons who are members of such a college who will be members by virtue of the holding of some other office. Such a college may in some circumstances be the committee of management, in others it may be a committee which falls within par.(c) of the definition of "office" in s.4 of the Act. It seems unlikely that a body would be set up purely for the purpose of an election meeting at considerable cost to a federal organization to perform one function only. It was submitted to us that to regard the section as requiring a separate election for each office prescribed by the rules of the organization and falling within the paragraphs of the definition would lead to an absurd or inconvenient result. This I think is so and such a result is to be avoided unless the language is intractable. To illustrate the position 21. in the case of this association, if it is necessary under the section to require a separate election in respect of each office then regard must be had to the overlapping nature of the paragraphs in the definition. In the case of this association, pars.(a),(aa),(b),(c) and (d) all appear to overlap and in the case of the federal secretary and federal president it would be necessary for her to be elected in separate elections though perhaps conducted 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) and (c)) 4. a person holding property under par.(b) of the definition. I leave out of consideration the question of the overlaps with par.(d). Like considerations apply to the federal president and to the federal vice-president, as they do to the branch secretary, branch president and branch vice- president. In some organizations there are separate rule making bodies and in a few separate bodies exercising disciplinar powers and in those cases the position would be aggravated and the number of separate elections increased considerably. For the reasons I have indicated I am of the view that the language is not intractable but that it is consistent with the commonsense result which flows from the adoption of the present 22. practice. In my view then, s.133 of the Act properly construed does not make provisions with which these rules would not conform. I regard the word "each", as defined, to do no more than to emphasise that there is no exclusion of offices as defined or any of them. In my view then, the questions asked should be answered as .follows: 1. Yes. 2. (a) No. (b) No. (c) No. 3. Question 3 should, in my view, be answered as follows: Sc far as the requirements of par. (a) of s.140(1) are concerned, yes. So far as the requirements of s.140(1)(c) are concerned, no material appears before this Court which would support a view that the proposed rules would offend against s.140(1)(c), but final consideration of this may depend upon an examination of the history of other matters peculiar to the Association. I certify that this and the %-.-°° preceding pazes are a true copy of the Reasons for Judgment berein of his Honour Mr. Justice Sweeney. Hote Associate IN THE FEDERAL COURT OF AUSTRALIA No. 19 of 1980 VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION - IN THE MATTER of an alteration of the Rules of the AIRLINE HOSTESSES' ASSOCIATION an organization of employees registered under the CONCILIATION AND ARBITRATION ACT, 1904 REFERENCE BY THE INDUSTRIAL REGISTRAR (pursuant to Section 112 of the Conciliation and Arbitration Act 1904) of questions of law for the opinion cf * the Federal Court of Australia. Coram: Bowen C.J., Smithers, J.B. Sweeney, Evatt and Northrop JJ. REASONS FOR JUDGMENT Smithers J.: Ever since 1928 it has been the law, as embedied in Regulation 115(1}) (4) (i} and its precursors that the affairs "of an organization registered under the Conciliation and Arbitration Act 1904 (the Act) should be regulated by rules providing, for the election cf a Committee of Management of the organization and of its branches and of officers of the organization and of its branches under a system of voting which makes adequate provision for absent voting. In 1952 by S.R. No. 39 of 1952 it was enacted that the rules of an organization should provide for the election of certain other bodies of an organization and the law was in the form, namely that the affairs cf an organization should be regulated by rules providing for, "(1) the election of A. a committee of management of the association and of each branch of the association; [Be officers of the association and of each branch of the association; and Cc. any conference, council, panel or other body (additional to the committee of Management), which is empowered to determine policy or to exercise functions of management in the association or branch." In 1956 by S.R. No. 60 the earlier regulations were all repealed and regulation 115(1)(d)(i) was enacted in the form in which it now is. Regulation 115(1)(d){i) was promulgated in S.R. No. 60 of 1956. Since 1952 the substance of the relevant reguirements has never heen changed. Accordingly the critical question in this case is whether the rules of the Airline Hostesses' Association (the Association) do provide for the election of a Committee of Management. os ile noe Me OS Ne ISO da RS Dee i nN oe te Aceh cct eo They do provide for the election of certain members of a Committee of Management, (the Federal Council). As to the other members of the Federal Council, they are persons who have been elected as officers of the organization, namely as Federal President and Vice-President and Secretary and the President and Secretary of each branch. Rule 27 provides that the Federal Council shall be composed of those officers and branch delegates. The contention is that these provisions are rules providing for the election of a Committee of Management within the meaning of the provision of regulation 115(1) (d) (i) that the affairs of the organization shall be regulated by rules providing for the election of a Committee of Management of the organization and of its branches and the other categories of positions referred to in paras. A, B and C of that regulation. In the course of the debate on the straight forward question as to whether this contention is sound, the view has been put that the provisions of regulation 115(1) (d)(i) are in some way qualified by s.133(1)(a} of the Act. I think it appears on examination that that section does not play a significant part in resolving the basic question whether the rules of the Association really do provide for the election of a Committee of Management. The better view in my opinion is that the requirement that the rules shail provide for the election of a Committee of Management is to be found in regulation 115(1)(d)(i) and that that requirement is unaffected by the provisions of s.133 of the Act, and that it follows that the requirement that rules shall provide for election of any position referred to in paras. A, B and C of regulation 115(1)(d)(i) is unaffected also by the definition of "Office" in s.4 of the Act. The matter depends on the construction of s.133 of the Act. That section is, I think, really concerned to specify particular conduct to be observed in the carrying out of certain organization elections in particuler elections for "offices" in the organization and thus in elections provided for in xules complying with the provisions of regulation 115 (1) (d) (i). Those requirements include the conducting of the elections, by either a direct voting system, or a collegiate electoral system, by a returning officer whe is not an officer or employee of the organization, by secret ballot with provisions for absent voting and otherwise in a Manner to be laid down. Section 133 as at present in force follows various statutory provisions all of which have been concerned to require the making of rules laying down requirements to be observed in the conduct of elections in an organization. In each of those statutory provisions it is expressly stated that the requirements as to the making of rules as specified therein are "in addition to" the conditions to be observed by organizations as specified in what is now section 132(2) of the Act. That section provided that the conditions should be as prescribed. The current relevant prescription is regulation 115(1)(d) (i) and as mentioned above previous prescriptions have so far as relevant been in substantially similar terms. The first of those statutory provisions was s.9 of Act No. 18 of 1951 the major import of which was to introduce voting by secret ballot in elections in respect of certain offices, namely those within paras. (a) (aa) and (b) of the definition of "Office" as it then stood. This provision became' s.70A of the Act. The next statutory provision was the introduction by s.52 of Act No. 138 of 1973 of s.133 of the Act, the major import of which was to introduce direct rank and file voting in elections for all offices. Section 133 of the Act in its present form was introduced by s.4 of Act No. 117 of 1976. It enacts that rules shall provide for the election of the holder of each office within the Organization, either by a direct voting system or a collegiate system, and provides for certain other practical matters such as secret ballots and absent voting and the conduct of the ballot. But the introductory words of the section specify that the provisions in it are "in addition to" those conditions to be complied with by organizations pursuant to s.132(2). Those conditions are those prescribed in regulation 115(1)(d) (i). Thus the requirement that rules shall provide for elections for the positions referred to in paras. A, B and C of regulation 115(1) (a) (i) was in force prior to the enactment of s.133. Section 133 does not purport to qualify that requirement. On the contrary, it confirms it. It makes the rules to be made pursuant to it concerning the conduct of elections applicable to elections for the holding of which rules made pursuant to regulation 115(1) (ad) (i) are to provide. In Sherriff v. Townsend V. No. 12 1979, 32 April 1980 (unreported) I said that s.133 assumed that there will be elections pursuant to rules made under regulation 115(1) (d) (i). But it does more than that. It refers to the conditions already provided for in s.132 and enacts: that organizations shall comply with certain other conditions "in addition to" those already applicable pursuant to s.132(2) which are of course those set out in regulation 115 (1) (d@) (i). It is not going too far, therefore, to say that s.133 is a recent statutory confirmation of the continuing operation of the conditions prescribed in regulation 115(1) (da) (i). Section 133(1)(a) is not to be construed as enacting the provisions of regulation 115(1) (d) (i) all over again. It takes the situation existing under regulation 115(1)(d)(i) as it finds it, namely that elections for the positions referred to in regulation 115(1) (a) (i) are already provided for, and provides for the making of further rules about the method of conducting such elections. Certainly it requires such "conduct rules" to be made for elections for holders of each office. But in the context, that would appear to mean each office in respect of which the provisions already required to be in the rules require an election to be held. If however, the section does require the making of rules for holding any elections additional to those required by rules made in accordance with regulation 115 (1) (a) (4), it would not take away the operative effect of that regulation. And it is to be noted that the positions comprised in paras. A, B and C€ of regulation 115(1) (d) (i) would comprise practically all, if not ail, cf those specified in the defintion of "Office" in s.4 of the Act. But the manifest purpose of section 133 enacted in 1976 is 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 the duty imposed on organizations by regulation 115(1)(d)(i) to 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 s.70A of the Act and in relation to s.133 in the form in which it stood as enacted in 1973. The issue in this case is whether rules which provide for an election to one of the positions in an organization which are referred to in para. B of regulation 115(1) (d) (i) and also provide that the person elected to that position accedes, ex officio, to another position, namely: a position within the scope of para. A of the regulation, can be said to be cules which provide "for the election" of a person to fill that latter position. When regulation 115(1) (d) (i) reguires that there be rules providing for the election of a Committee of Management it is necessarily to be construed as requiring that there be rules providing for the election of each member of a Committee of Management. The question is whether a rule which provides for the election of officers such as secretary or a trustee and goes on to provide that the persons elected as secretary or trustee shall accede to the position of member of the Committee of Management can be said to be rules which provide for the election of a Committee of Management, or putting it distributively, the election of the members of a Committee of Management. Or, putting the matter in reverse, could it be said that rules which provided for the election of the members of a Committee of Management and went on to provide that certain of those members should accede, ex officio, to positions of secretary or president, provided for the election of officers of the organization? Or could it be said that rules which provided for the election of Vice President and went on to provide that the person elected should accede, ex officio, to the office of secretary, provided for the election of officers of the organization? To my mind the answer to all these questions is in the negative. It is a question of construction of regulation 115(1) (d) (i). It seems to me that it would be difficult to eres, ee ee nee a A en le a Mami tem te e 9 find words 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 regulation the rules must provide for the filiing thereof by an election for that position. In other words a procedure must be provided for ascertaining in respect of each position the authentic choice of the electorate of one of the candidates for that position. The procedure must be such that as a result thereof it can be said that there has been in fact, an election 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 an election. That may not mean that a procedure may not be devised for electing one person to fill two positions. If that be done there has been a choice in respect of each of the positions, albeit a limited choice. But that procedure may constitute an election satisfactory for the purpose of regulation 115(1) (d) (i). Similarly it dces not mean that elections for multiple positions may not be conducted on a common baliot paper. But it does mean that after the specified procedure has been carried out it must be possible to say of a candidate acquiring a particular position, thut he acquired it by election. Accordingly, a rule which says, in effect, that there will be no election for a particular position, arses tore meer he 10. such as membership of the Committee of Management, would not comply with regulation 115(1) (d) (i). And it would not cure the situation to provide that a person elected to, say, the position of secretary shall be a member of the Committee of Management. The first question which arises is whether the rules of the Association, the terms of which are sufficiently indicated above, provide for the election of a Committee of Management in accordance with regulation 115(1)(d)(i). When the regulation prescribes that the rules shall provide for the election of a Committee of Management it is manifest that what is intended is that the rules shall provide for the election of members of the contemplated Committee and of all the members thereof. As was said by Kerr J. as he then was, in Bicknell v. Amalgamated Engineering Union (1969) 15 F.L.R. 215 at 228:- "This regulation means that the rules must provide for the election of the committee of management, conferences, councils, paneis or other bodies referred to and of the officers referred to. The rules must provide fer the election of all members of these bodies and all officers." It is necessary then to consider what is involved in an election. Reference to Halsbury's Laws of England Volume 15 pp. 551 et seq. and to May's Parliamentary Practice and to we. li. various decisions in this Court confirms that the concept of conducting an election extends to the initiating process such as the issue of the writ calling for nominations and their scrutiny, as well as the actual process of arranging for and receiving the votes and declaring the poll. See for instance Friend v.- Barnes (1969) 15 F.L.R. 184 at 201 et seq, Jones v. Farrow (1971) 20 F.L.R. 73, and Re Election for office in Australian Institute of Marine and Power Engineers (1973) 20 F.L.R. 407. Express authority is lacking as to what precise steps are required to be taken to ensure that those concerned in an election both as nominating candidates and electors are apprised of the positions or offices with respect to which they are invited to nominate or to vote. But there can be little: doubt that it is essential that in calling for nominations and preparing ballot papers steps must be taken to notify those concerned as to what office or position it is with respect to which, the election is to be held. When therefore regulation 115(1)(d)(i) refers to a rule providing for an election with respect to a position or office it must be taken to be referring to an election in which those basic requirements are observed, Accordingly what is contemplated by regulation 115(1)({d) (i) is that the rules of an organization shall provide for the election of, (a) - the members of the Committee of Management of the 12. organization and each branch of the Organization at elections in which those concerned will be informed that the position or office in the election in which they are invited to participate is the position or office of member of the Committee of Management; and (b) 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 eiections are being held. The rules of the Association do provide for the election of federal offices identified as the Federal President, Vice-President and Secretary. But so far as the Committee of Management is concerned they provide for the election only of certain branch delegates, described as additional delgates, 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 of the Federal Council are the Federal President, Vice President and Federal Secretary and the President and Secretary of each branch, the last two of whom are described as branch delegates. The rule purports to confer membership of the Federal Council upon each of those five officers and to do so by reference to their holding the positions mentioned. The rules do not provide for the election of those officers to membership of Federal Council. Accordingly it would seem 13. that the rules fail to comply with the requirements 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 Committee of Management. It is put that so far, for instance, as the Federal Secretary is concerned the requirements of Regulation 115(1) (d) (i) are satisfied by the provision made in Federal r.55 for the election of the Federal Secretary and the provision of Federal r. 27 that the Federal Council shali be composed of certain designated offices and delegates, one of which offices is 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 election 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 better view is that what the informed voter knows or is deemed to know is more accurately expressed by saying that he knows that the person elected in the ballot relating to the office of Secretary will without further election accede to the office of the Federal Councillor. He knows that there is to be no election at which any members will be asked to vote in respect of the position of one Federal Councillor, namely, that which will be assumed, ex officio by the Federal Secretary. And the effect of r.27 is to create a position and office of Federal Councillor which is reserved we 14, for the person who may be elected Federal Secretary. That person will accede therete not as the result of being elected thereto but as the result of being elected to an entirely different position and office. This process would appear to be the antithesis of the process of electing a member of the Council. 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 fail to provide for the election of a Committee of Management. Considerations to the Contrary There are a number of considerations by reference to which it is urged that what seems a very plain provision should be qualified to the extent that at least with respect to Federal President, Vice President and Secretaries rules providing for their appointment to the position of member of the Committee of Management without election to that position are to be considered, in some way, as rules providing for election to that position. There is said to be a generally accepted view that organizaticns are entitled to arrange their governing and administrative structure in a way suitable to themselves. Evatt dg. and I in Lovell v. nd Allied Industxies Employees' Union of Federated Liquor a 15. Australia (1978) 35 F.L.R. 72 at p.81 said, "A constitution suitable for one union may be unsuitable for another ... The rules must be designed to ensure stability in management and at the same time to avoid installing officers who cannot be removed. In the designing of rules appropriate for an organization of employees much must be left to the judgment of those who make the rules." And this is true, as is, with respect, what O'Mara J. said in Thornton v. Mackay (1945) 56 C.A.R. 561 at p.590:- "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 of that body and the circumstances which exist in relation to its membership. The same is 2 true of the provisions for the control of such committees by members of the association." But this freedom, must be exercised in accordance with the law, or as O'Mara J. pointed out at p.590, subject to the prescribed conditions. And it is no real fetter upon it to have rules providing that a Committee of Management shall be elected. And it can be done in appropriate cases by election even by the collegiate system. So far as a President of the organization is concerned it is usual and desirable for that officer to be a member of and preside at the meetings of the governing bodies thereof and the rules of the Association so provide. There is much to be said for the view that the person elected President > 16. occupies two positions in the categories set out in paras. A, B and C of regulation 115(1)(d)(i). And it is suggested that if he has to stand for separate elections for each position he might fail to be elected for, say member of the Committee of Management, and would then be a presiding officer without a vote. However, I think the better view is that election to, and occupancy of, the position of President incorporates membership and Presidency of the Committee of Management and that the Presidency is one position with various aspects. Each may be an office. But whether they are offices or not is really not to the point, save that if it were necessary to have separate elections each must comply with the conditions enacted by s.133 of the Act. The definitions of the expression "President" to be found in the Oxford English Dictionary and set out hereafter, support this view of the President's position. But if this be not so and an election for each of the positions is necessary by law, the situation would be unusual but far from unworkable. If it were the will of the electorate that the President be not automatically a member of the Committee of Management that would be at least the working of full membership participation. If, as I think is the case, the election for the position of President is in form and substance an election for a position in which membership of the Committee of Management is incorporated, both by the rules of she Asseciation and according to the ordinarily held concept of the position, then the one election is an election for each office within the concept of the 17. Presidency. It was said by counsel supporting the proposed rules of the Association that each organization should be able to determine its structure by providing for composite offices in the rules so long as the holders of those offices were elected. Thus the rules could provide that the positions of Branch President and certainly other officers such, no doubt, as Vice President, Secretaries and Assistant Secretaries and possibly Trustees or Organizers carried with them membership of the Federal or Branch Councils. The notion that these offices might have membership of Federal or Branch Councils so conferred upon them was based on the provision in s.133(1) (a) that rules required to be made pursuant to that section should provide for the election of the holder of each office within the organization. But this section is not directed to such a notion. It is directed to the making of rules providing "for the election of the holder of each office within the organization by" a particular type of voting method and by secret ballot and subject to other requirements. It is not directed to the making of rules providing what elections shall be held. That has been done by regulation 115(1)(d)(i). But that regulation gives no guidance as to what particular mode of election is to be adopted in respect of the election of the holder of each office within the organization. And that gap is filled by s.133. ccna tae 18. The language used is hardly adequate to indicate that notwithstanding that the whole of s.133 is additional to regulation 115(1)(d)(i), through s.132, it nevertheless authorises rules which will 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 notion that election for one office will suffice for every office would be a provision contrary to the plain words of regulation 115(1)(d) (i), and would have to be found in equally plain words elsewhere, and certainly not in a provision such as s.133 which is expressly declared to be introducing conditions additional to those in regulation 115(1) (d) (i). But the notion must be regarded as contrary to the chief objectives of the Act (see s.2, particularly 8.2(f)), and 'to the whole thrust of the provisions for elections in s.132, s.133, regulation 115(1)(d)(i) 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 curiae pointed to the surprising consequences of accepting the view that election of one office was a sufficient foundation for appointment to another. He pointed out also that if the "netion actuaily represents the law as established by statute, even its more bizarre effects could hardly be regarded as contravening the provisions of s.140(1). sere NRA in ETE Ca ee ae ae ee ee aes Mem ame So nee E ane orm It is more important to observe that although acceptance of the notion involves 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) (ad) (i) inoperative to the extent that persons elected as officers are appointed to the Committee of Management. It would permit creation of a Committee of Management to which no member was elected. This is in no way far fetched. As appears from the reasons for judgment in Sheriff v. Townsend (supra) the Committee of Management of the Victorian Branch of the Vehicle Buiiders Union is, according to the Union rules, comprised of sixteen persons being the elected holders of offices other than membership of the Committee, including a number of elected organizers, and only four persons elected to that Committee. If the notion referred to above be accepted, 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 become ex officio members of the Committee, as is the case in some organizations, is calculated to promote continuance in office of particular officers, and a kind of official inbreeding seriously to the prejudice of democracy and member partici- pation. It is difficult to see how rules permitting this state of affairs or anything approaching it could possibly be thought to comply with the requirement of regulation 115(1) (d) (i) that they must provide for the election of a Committee of Management. 20. It has keen argued that a system under which an election is held for one candidate to fill two positions is unacceptable because it deprives members of the opportunity to stand for and vote in respect of each of the positions. But the actual removal of the necessity to hoid an election at all for a particular position or office by appointing to it a person elected to another office is a much more shattering blow to the members' right to stand for office and to the notion of full member participation in Union affairs. The rules of the Association differ from those before the Court in Bicknell v. Amalgamated Engineering 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 say that in respect of the positions of those officers, the rules did, in a general sense, provide for election. But the same cannot be said concerning the positions of members of the Committee of Management in the Airline Hostesses' Association. It is of course appropriate that there should be branch representation in the Federal governing bodies and that delegates elected by the branches should be members thereof. But to achieve this cshere is no necessity to adopt an interpretation of regulation 115(1)(d) (i) which would permit appointment by rule instead of election. And indeed a a eect mee ete SA tant el aR en aoe abe Mam Ra 21. provision in a rule that officers elected to Branch offices accede ex officio to the position and office of Federal Councillor would seem to offend the provision of regulation 115(1)(d) (i) in a very direct way. Election for branch representation on Federal Council is the democratic way. Appointment of 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" in $.133(1) (a). But this is to attribute a meaning to that word out of harmony with the statutory expression in s.133 that the conditions enacted "by it are additional to those already imposed by s.132(2) as implemented by regulation 115(1)(d)(i). This is apparent if the provisions of regulation 115(1)(d)(i) and s.133 are read together. For purposes of construction it is necessary to do this, and the two, put together read in sequence as follows:- the affairs of the organization shall be regulated by rules providing in relation to the organization for- (1) the election of, A a committee of management... B offices of the association... Cc any conference, council, panel ... 22. and in addition, by rules which, (a) shall provide for the election of the holder of each office within the association or organization either by (i) a direct voting system; or (ii) a collegiate electional system... (b) shall provide for the conduct of every such election ... (c) shall provide that if the returning officer ... (d) shall provide that every such election shall be by secret ballot with provision for, (i) absent voting; (ii) the manner in which persons may e become candidates for election: . (iii) the duties of returning officers; (iv) the conduct of the ballot; (v) the appointment, conduct and duties of scrutineers ... (vi) the declaration of the result of the ballot... (da) eee (db) eee (e) eee (£) eee And so far as the word "holder" is used in s.133(1) (a) in conjunction with the word "office" it is tc be noted that since the introduction of the definition of office in the 1949 use of the expression "election of the holder of each office" + Ee aes ee ere cera eve nee Se wn hie ane et Rae a Sh ne anand oe Oe EE 23. is a convenient way of referring to the elections tc be held pursuant to rules to be made under regulation 115(1) (d) (i). The circumstance that the positions comprised in paras. A, B and € 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 have rules for the election cf holders of those positions as reguired by requlation 115(1) (d) (i). That duty existed long before the @efinition was introduced into the Act. The main 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 is from this, as-I understand it, that the notion is said to arise that once a person has 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 been elected to particular offices, for instance, offices not being those of members of the Committee of Management, elections need not be held for positions on the Committee of Management. And of course this necessarily goes further. It would appear to be in the teeth of the requirement that the affairs of the Union shall be regulated by rules providing for the election of a Committee of Management. And it is put that the view arises out of the use of the expression "holder" of each office, rather than, for instance, "for each office","in respect of 24, 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) (i)and indeed of s.133 itself. To achieve such a result plain words would be required. To my mind if the provisions of s.133 are -read in conjunction with regulation 115, as set out above, it is inevitably seen that no such violence is intended. On the contrary as it appears to me the whole thrust of s.133 is to assert the intention of Parliament, not only that elections be provided for in respect of the positions referred in regulation 115(1) (dj) (i), as required by s.132, but that those elections be conducted under the strict conditions provided by s.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 holding elections for particular offices by the simple expedient of appointing thereto persons who have been elected to some other office. Section 4(5) of the Act which was introduced by Act 117 cf 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 elected te the offices entitling them to membership of that body by a direct voting system. From the reference in the sub-section to an officer holding an "office entitling him 25. to membership" of the collegiate body, and the fact that the collegiate body might be identified as a Committee of Management, it is arguable that there is an implied statutory recognition that there may be a holder of an office not being a member of the Committee of Management by virtue of election by direct voting system but whose office entitles him to such membership and that, accordingly, the plain terms of regulation 115(1)(d)(i) must be qualified in some way. The precise modification is unstated. But the situation envisaged is 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 Management, but to "a body of persons" forming an electoral college. And this form of words reflects the primary concept of collegiate body to be found in the definition thereof, namely a group of officers. I would think, as a matter of construction, if a relevant college were referred to as a Committee of Management it would, for the purpose of the collegiate electoral system, be in substance but a body of persons and to be treated as such. In addition the situation described would in any event, arise in cases where a President ox Vice President held office other than by direct vote, and those offices were included in the category of offices the holders of which were members of the college. Also the definition of collegiate electoral system in s.4 and s.4(5) te. 26. being but the instrument of s.133(1) (a) which commences with a recognition, and indeed confirmation, of the continuing operation of regulation 115(1)(d)(i), it would require clear and uneguivocal expressions to operate to qualify the requirements of the regulation. Accordingly, in my view, the provision referred to is not to be interpreted as giving rise to an implication that the provisions of regulation 115(1) (d) (i) do not operate according to their plain meaning. The effect of s.4(5) was not argued at the hearing of this matter and the decision in The Queen v. Dunphy ex parte pea ennai hiedeniemeamat lid we it amv anda a ae Maynes (1977) 139 C.L.R. 482 was not referred to. The construction of section 4(5) was discussed in that case. But the question of its possible influence upon the meaning and operation of s.132 and regulation 115(1) (d) (i) 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 in that case rules resembling those proposed for the Airline Hostesses' Association were examined and found not to offend regulation 115(1)(d)(i), but the question whether they complied with regulation 115(1)(d)(i) was not discussed. That matter had not been raised. There are numerous decisions which have dealt with issues concerning union rules, where, although the point was not taken, it was clear that such rules purported to confer the. office of member of a Committee of Management upon persons Mbit ied: tens Sem a ee 27. who had been elected to other offices including offices other than that of President. And of course a large number of Organizations have such rules and have had them for a long time. So far as the decided cases are concerned it would seem that until some remarks of my own appeared in Maher v. Egan and Ors.[Nc. 1] (1978), 35 F.L.R. 197, the problem associated with such rules had escaped judicial comment. What is more important is that it would appear that before Sherriff v. Townsend (supra) in this Court relief had never been sought, on the ground, that because of regulation 115(1)(d)(i) such rules were invalid or defective. When in that case relief was claimed on that ground the Court was divided in opinion, the majority holding that the rule in question was invalid. However in that case the relief granted was also supported on another ground. Bicknell v. Amalgamated Engineering Union (supra) was a case in which rules providing for appointment of branch Secretaries on a temporary basis to meet a special situation were held to be valid. It was held that such rules did not contravene the provisions of regulation 115(1) (a) (i). For present purposes the importance of the decision is 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 members of State Conference and State Council. No suggestion was made that this factor introduced invalidity in the rules or that that factor had any relevance to the 28. Matter in issue, namely whether temporary appointments might lawfully be made to the offices of Secretary, and it was not treated by the Court as having any significance, it was simply not raised or adverted to. The matter did have some relevance to the decision as the nature of the functons of the branch Secretaries was a matter taken into consideration by the Court. Nevertheless the most that can be said of the decision is that it was assumed by the Court that the officers in question would be members of the State Conference and Council and that that matter was of no significance to the issues before it. 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 similar effect may be made in respect of other cases, including Crealy v. Commonwealth Bank Officers' Asscciation (1957) 1 F.L.R. 153, Mackenzie v. Administrative and Clerical Officers' Association, Commonwealth Public service (1962) 5 F.L.R. 342, Egan v. Maher (1977) 35 F.L.R. 197 and McLeith v. Kane (1978) 3 F.L.R. 80. But in no decision has the point in issue in this reference been taken or come up for decision. It is correct to say therefore that it has been commonly and tacitly assumed by organizations and in judicial proceedings, that appointments of officers, such as Presidents, Vice Presidents, Secretaries and Assistant Msn Sede 29. Secretaries and sometimes Organizers as members of a Committee of Management were not irregular. Accordingly that position might be accepted, were it not that "the judicial mind" when, as in Sherriff v. Townsend (supra) and in this case, is directly 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 is for Parliament to say in what cases elections shall be held. The holding of elections is part of the process of full participation by members in Union affairs which, Parliament has declared to be of great importance. If the provisions laid down by Parliament are to be relaxed that is a matter for Parliament itself. General In the observations above, I have used terms which treat the Federal Council as the Committee of Management of the Association. It may be that the Federal Executive conforms more to the concept of a Committee of Management. However, even if the Federal Council be not technically a Committee of Management the substance of the issue arising under the first question does not change, because it is certainly a panel which is empowered to determine policy sa. 30. within the meaning of Regulation 115 (1) (da) (i)C. It 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 1973 by s.52 of Act No. 138. It is to be noted also, having regard to the introduction of the definition of "direct voting system", the terminology of S.133(1)(a) of 1976 reflects precisely the terminology of s.133(1) (a) of the Act of 1973 in respect of that expression. And it is of interest to note that the precursor of 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 following form, namely, "JOA. - (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 organiz- ations, and, subject to this section, by organizations, include a condition that the rules of the association or organiz- ation relating to an election for an office in the association or organiz- ation or in a branch of the association or organization (being an office spec- ified in paragraph (a), (aa), or (b) of the definition of ""Office" in section four of this Act) - (a) shall provide that the election shall be by secret ballot; and (b) shall make provision for - (i) absent voting; 31. (ii) the manner in which persons may become candidates for election; (iii) the appointment, conduct and duties of returning officers; (iv) the conduct of the ballot; (v) the appointment, conduct and duties 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 as will ensure, as far as practicable, that no irregularity can occur in connexion with the election. (2) eee, (3) eee > = (a) Lee (5) uae (6) oof The change in 1973, which was maintained in 1976, and by which the expression "rules relating to an election for an office in the organization", was changed to "the rules ... shall provide for the election of the holder of each office", would seem to reflect the intention of Parliament that provisions for secret ballots and other aspects of conducting elections provided for in s.133 should apply to elections for all positions which were "offices" and not only to some of them. It was convenient therefore to use the expression "holder of each office". Its use tended also to eliminate any suggestions that the section only applied to elections Dee ANE ae en dc NS a oo Nl a a cium des nnd a dt nae rane mt LL me delia 32. for those offices in respect of which the organization might decide to hold elections, and to avoid any suggestion that the imperative requirement of regulation 115(1) (d) (i), might be qualified in some way. Offices Having regard to the foregoing it is my conclusion that with respect to the various positions referred, to in regulation 115(1)(d)(i) 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 normally in an executive role. Members of governing or Managing bodies act in conjunction with other members thereof, in the exercise of functions normally not .of an executive nature. It would not, I think, occur to members cf the Committee of Management that they were officers of the organization. Certainly regulation 115(1)(d) (i) appears to assume that the members of a Committee of Management are not officers of the organization within the meaning of para. B thereof. And I think that this has been a characteristic of a becnscenersnins nntin Ma sninee es oa caine Samet ee 33. the Act since 1910 or even since 1904. According to Schedule B to the original Act it was a condition of registration of an organization that its affairs were regulated by rules providing, inter alia, for "the appointment and continuance of a Committee of Management, a Chairman or President and a Secretary". But by Act No. 7 of 1910 that Schedule was . repealed and replaced by Schedule B requiring that the affairs of an organization be regulated by rules providing for, inter alia, "a Committee of Management and Officers". Again in regulation 5 of S.R. No. 331 of 1913 this same terminology appears. 'A change in terminology and substance appeared in an amendment to Schedule B enacted by s.58 of Act No. 18 of 1928. Thereby the terms of Schedule B provided that the rules of Associations or Organizations should provide for, inter alia, "the election of a Committee of Management of the organization and of its branches and of offices of the organization and of its branches under a system of voting which makes adequate provision for absent voting". The repetition of the word "of" emphasises that the rules are to provide for an election for each category of position. It is to be observed that for the first time election of a Committee of Management and of officers was made compulsory. And clearly by the form of words used it is to be seen that what was contemplated was that provision would be made for the election of al] the persons to hold positions whether as members of the Committee of Manaqement or as officers. Although a Iember of the Committee of ae ae Bat re cae Sead mined eae a ote Ste an nae ALAN te nn a oe nen ae = wine eee ee ewes Aebeee eerie sent se aetetae ate meet ee Cane nn eke ta nln Ane ee nti leases i Sar A 34. , Management was not and is not regarded as an officer, it is not incompatible with this that a member of the Committee of Management might be regarded as holding an office in the organization. And the situation that the member of the Committee of Management has an office but is not an officer is not, I think, affected by the introduction of the definition of "office" by para. (a) of s.4 of the Act. Necessity for Elections In Fact By Regulation 115(1)(d) (ii) it is provided that the affairs of an organization shall be regulated by rules providing for "the powers and duties of committees and of officezs". The question arises as to whether in relation to any officer identified by some particular title there are any limits to the powers and duties that may be conferred on or imposed upon him, Certain limits may be imposed by 8.140(1){c) of the Act. But within those limits one can imagine wide ranging powers and duties being allotted to, say, an officer designated as President, Secretary, Treasurer or Trustee outside the powers and duties normally associated with those of officers so designated. It is to be remembered however that there may well be a difference between defining the powers and duties of an officer designated by a particular title and endowing him with the quality of holding an office of quite a separate nature. neha NNR A ae Nene Gone cnn ne nme ae ae mean 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 powers and duties appertaining thereto. Regulation 115(1)(g) provides that rules "may also provide for any other matter not contrary to law". And there would appear to be no express law prescribing that persons on whom particular functions have been conferred shall be given any particular title or titles, or that a person designated as an officer of the organization under some particular title shall have any particular set of functions. But it is essential that in relation to the elections to be carried out pursuant to rules complying with Regulation 115(1)(d) (i) it should appear to the electors in respect of each election, for what position it is, that the candidates are seeking their votes. And it would seem from regulation 115(1)(d)(i) that for election purposes a position may be specified by reference to its title. Certainly s.4 assumes that certain offices are identifiable by their titles. Thus the offices of President, Secretary and Trustee are treated as being recognizabie by their title with 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 reasonably within the normally understood limits of the powers, duties and the functions of officers of organizations so titled. And this consideration must apply with respect to the conduct of an election for a particular position or office. ce carat nem Ra At ene Me AD ae a oe a dN Bae Ne es ans * piel em ane ee att AEE hee Gy ai Meta eniAnbe nt aes oa Ma cBstin eset a Mi wanes sa Neh an Cece ont tean ent an le aN tet tne ie Rene tne mae et Me If for instance, the rules of an organization allot to an officer entitled "Trustee" the functions normally allotted to a Secretary, or if the functions allotted by rules to an officer described as "Secretary" include those normally performed by a Secretary and also service as a member of the Committee of Management, then, so far as the conduct of the relevant elections of those officers is concerned an election purporting tc be an election for the position of Trustee would in fact be for the office of Secretary, and an election purporting to be an election for Secretary would in fact be for the office both of Secretary and member of the Committee of Management. It is an attractive view that members of unions are deemed to know the rules. Acting on this basis it can be argued that if the rules of an organization create a position or office and give it say the powers and duties ordinarily associated with the name "Secretary", but give it the name "Organizer", and the rules go on to provide that there shall be an election for the position of Organizer, then the person elected under the name Organizer would in fact be the person who would perform the duties of Secretary, and would accede to the office and have the duties and privileges ordinarily those of a Secretary. But positions such as President, Secretary, Trustee and Organizer are traditional positions ee ed ihe Le Wate aot a ee AY ee ai reer Ne Lae eid ane 37. and, broadly speaking, with traditional powers and duties. When a regulation dealing with elections of office holders was introduced in its original form it reguired rules providing merely for an election of two classes of office holders, namely members of the Committee of Management and officers. In its" latest manifestation regulation 115(1) (d) (i) requires that there shall be rules providing for the election for various positions in the Union and it is to my mind necessarily implied that it requires 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, B and C of the regulation. From the point of view of purpose and of common sense it would hardly be thought desirable to authorise rules for holding the election for an office by one name when in truth and substance the election was for a different office. It is difficult to think that when Parliament went to all the trouble to ensure that there would be elections for different offices and to enact that those elections would be carried out with great care to ensure, inter alia, that there were no irregularities, it would be contemplated that there could be an election for an office. under one name which was really for an entirely different office. It has to be recognised that s.132 and s.133 of the Act are deliberate steps towards achieving democracy in organizations, and what is perhaps more important, full participation by the members in the affairs thereof. Indeed it would be hard to think of a step tt mat, OS caneenen Acta tested Ans 38. more likely to cause confusion and frustrate full partici- pation of members than an election conducted apparently for one office but in reality for another, or for a named office and another. In the light of the introduction of s.2(f£) of the Act which declares full participation to be one of the chief objects of the Act, it is more than likely that Parliament would have intended that the rules to be enacted under regulation 115(1)(d) (i), and in accordance with s.133 would provide for elections concerning which the persons concerned would actually understand the full impact of what was put before them. It is not difficult to achieve. In the light of the subject matter namely, full participation by members, the fiction involved in a situation where knowledge is "deemed" to exist, is quite out of place. It is important. that organizations have membership in many cases well exceeding 100,000, with members distributed all over Australia, of whom many are transient in their membership, persons of limited education and possibly literacy. It is quite unreal to act by reference to knowledge which those members are deemed to have because they are deemed to have read the rules. e In the end the situation remains that an election is an event complete in itself, that an election for Federal eb eee nee se 39. Secretary or Branch President or Branch Secretary is not an election for membership of the Federal Council, and that what a knowledgeable member of the Association really knows is under the rules of that Assocation the persons elected to the positions mentioned will accede to membership of Federal Council without being elected thereto. What the rules to be made pursuant to regulation 115(1) (d) (i) must provide for are elections for the positions within the categories A, B and C thereof which will be, in fact, elections for those positions. Whether the elections provided for by the rules will in fact be elections for these positions may be determined by reference to the terms used in the conduct 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 be appropriate to make a finding of fact that the successful candidates were elected to those positions, and such elections would carry the privileges and entail the performance of the functions reasonably understood to attach to those positions. In these reasons I have assumed thzt rules which provide that the same person is to hold more than one office, and for the holding of what may be described as a single oe em eR A er nt NN dO RIN noe ai : 40. election for the purpose of electing one person to more than one office, would be valid. But this may not be so. it is not clear that such rules would not infringe a right of any member to stand for any position in the organization. It is possible that a rule the effect of which is that a member 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 office, and thus prejudice his full participation in the affairs of the Union. If this be so rules which result in no election being held at all for various positions offend this principle much more seriously. t The discussion in these reasons concerning the validity of an election for a position having a particular name but which embraces some other and quite separate position, 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 the Registrar in this case. The rules of the Airline Hostesses' 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 invalid if the same objective could be achieved with respect say, to the position of Secretary, by defining his powers and duties as the powers and duties of the position of member of the Federal Council and the Executive. However it a amd Noe ce tn ar ane ene hee cot See Mee Sa te 41. is not a technicality because, if my view is correct, namely, that an election in such a situation could only proceed if the nature of the two offices involved were disclosed and the ballot papers make the position clear, then those voting would know what positions or offices they were voting for and they might judge the 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 1910 onwards, there is a strong implication that the Act assumes 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 those titles imply according to their ordinarily understood connotation. Accordingly a rule which provided for an election for an office with specified duties, by a name which did not reasonably indicate that the office concerned did relate to those duties, would not provide for an election in respect of that office, within the meaning of regulation 115(1) (d) (i). Special Position of President The elections for Federal President, Secretary and Vice -President provided for in the rules of the Association are 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 the 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 consideration. All his 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 organization. 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 is one "appointed or elected head of a temporary or permanent body of persons who presides at their meetings and proceedings" Also he is "the head or chief of an advisory council or administrative board or department of government, for example The Lord President of the Council, The President of the Board of Agriculture, of Education or of Trade." In relation to a body like an organization registered under the Act, which is required by law to be governed by elected Committees and to engage in important transactions involving the promotion and adjustment of the interests of large bodies of employees or employers, the concept of the rights, duties and functions of a President, according to ordinary standards, is inevitably broad and of a wide range. cm li 43. Apart altogether from a provision in the rules to that effect those functions would extend to presiding in Federal Council. From the terms used in schedule B, as enacted in 1910, that seems to have been a function contemplated at that stage. It would normally be understood that a presiding officer of a body would be a member thereof. And in relation to the Federal Executive, which is but the day to day authority "acting in lieu of the Council, it would I think, ordinarily be understcod that a person elected as President 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 Committee the answer would be "yes". If he were asked whether he would expect the President of the Sydney Jockey Club to be a member of its governing council or committee the answer would almost certainly be "of course". If 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". Membership 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 other than those relating to his Council duties are all incidental to his Presidency of the whole organization. It is from the nature of that position that Presidency and membership of the two main governing bodies proceeds. wae bi mnetntn t inR ae ed i a NE atin eh a RI (catarsientih ety Haseeno sare swernticediiss ag eve bt Sa mente es eak See or bene 44, Accordingly, when an elector considers the candidature cf a nominee for Presidency of the organization he would understand the general scope of the 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. The 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 is not in conflict with regulation 115(1) (da) (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 is an election for a position the very name of which, in relation to the organ- ization, embraces 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 115(1)(d)(i) is satisfied so long as every person who acquires the position of member of the Committee of Management acquires it by election in an election where that position is in form and substance, in fact, the subject of an election. When the election is for Pied ie! sistant atta barks sonnets tae a Cena te na Rem ne nm ae mem Ne eo ae 45. the Presidency it is for a position, single in nature, but embracing, inter alia, membership of the Federal Council and the Federal Executive as incidental thereto. The same considerations apply to the Vice Presidency. It may be a question whether when a President is so elected 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 Executive. Each aspect of that position would qualify as an office within the Gefinition in s.4 of the Act. But that does not mean that three elections were necessary. Election to the Presidency was enough because it was, as a matter 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 be sound, on that account, to introduce modifications to the terms of regulation 115(1) (d) (i). Federal Secretary and Branch Officials But the situation is very different in respect of the position of Secretary. Accerding to the Oxford English Pee 46. Dictionary a Secretary is "one whose office is to write for another, especially one who is employed to conduct correspondence and keep records and (usually) to transact other business for another person or for a _ society, corporation or public body". I think that the ordinary concept of the function of a Secretary is that he serves the committee of the body of which he is secretary. The rules of the Association reflect this view. Accordingly the election of Secretary 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 Management. There is much to be said for the view that the concept of the office of Secretary of a Union of employees is that he is the senior executive officer of the Union. That view is also reflected in the rules of the Association now before this Court. That is a very different position from that of member of the Committee of Management. Accordingly a rule purporting to confer membership of the Committee of Management, ex officio, on a person elected as Secretary is a rule which does not comply with the provisions of regulation 115(1) (d) (i). For similar reasons the provision in the rules (rule 28) that the President and Secretary of each Branch shall be a member cf the Federal Council by reason of their occupancy of those positions does annie ethene Mlb ne i Ake adh wit ni sina ae etc ison Sd Ait retin: eee Neat tom ee 47. not so comply. The effect of the provision is to create 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 membership of the Federal Council the rules fail to comply with the requirements of regulation 115(1) (d) (i). To my mind the words of regulation 115(1) (d) (i) which require that the affairs of an organization shall be regulated by rules providing for the election of a Committee 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 which provide for the election of only a section of the members 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 fail to comply with the provisions of s.132 of the Act as implemented by regulation 115(1) (d) (i). Having regard to the foregoing, (1) Question one asked by the Registrar, namely, "Do the rules set out above provide fer the cata eae tae ee ls eae he LF ts UN te a ean a 48. election of the holder of each office (as defined in section 4) within the Organization as required by section 133(1) (a) and regulation 115(1) (d) (i) ?" should be answered "No". (2) Question 2(a), namely, "Do rules 27 and 41 contravene section 113(1) (a) and reguiation 115(1)(d)(i) in so far as those rules appear to provide that persons elected to be Federal Officers shall, without any further election, also be members of the Federal Council and Federal Executive?" should be answered "Yes". Question 2(b), namely, "Does rule 27 contravene section 133(1) (a) and regulation 115(1)(d)(i) in so far as that rule appears tc provide that persons elected to be Branch President and Branch Secretary shall, without any further election, also be members of the Federal wo" det mets ee tenes ai ee tee eee eres nine Se ae a eae Sante cee ve weieh enetnnes je natn einen ine es ms ees abt i la Lane sinner: wot ites Bt 49. , Council?* should be answered "Yes". Question 2(c), namely, "Does rule 41 contravene section 133(1) (a) and regulation 115(1)(a)(i) in so far as that rule appears to provide that a person elected to be Branch President shall, without any further election, also be a member of the Federal Executive?" should be answered "Yes". (3) Question (3), namely, "Do the said rules satisfy the relevant requirements of paragraphs (a) and (c) of . section 140(1)?" should be answered "No".