a & > J CATCHWORDS Industrial Law - Registered organization ~- Rules - Resolution of Branch Committee of Management to employ temporary relief organiser - Whether authorised by the rules - Whether bound to employ elected organiser - Whether rules contrary to law or oppressive, unreasonable or unjust - Whether Committee of Management acted bona fide. Conciliation and Arbitration Act 1904 (Cwlth), ss 133(1)(£), 140(1) (a), 140(1) (ce), 141. Roughan v. Coulson & Ors. (1982) 2 I.R. 145; 3 I.R. 393. PATRICK JOHN ROUGHAN v. COULSON & ORS. No. 22 of 1983 CORAM: Neaves J. 31 October 1983 Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 22 of 1983 ) INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an application under sections 140 and 141 of the said Act BETWEEN. PATRICK JOHN ROUGHAN Applicant AND: MAXWELL ROY COULSON, REX SMALL, ALLAN ADAMTHWAITE, ROBERT GARRETT, JOHN RUDDER, MURRAY BENNETT, NEVILLE PROUD, BARRY COLE, JAMES BENNETT, JOAN WATSON, LORRAINE EDWARDS, GRAHAM SHAW, JOSEPH VITULLO, KATHIE EVANS, LESLIE PARSONS and THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES" UNION Respondents ORDER JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 31 October 1983 WHERE MADE: Sydney . THE COURT ORDERS THAT: 1. The rule to show cause herein be discharged. 2. The applicant pay the costs of the respondents of and incidental to the application, the costs of the last-named respondent to be those of a submitting party. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 22 of 1983 ) INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an application under sections 140 and 141 of the said Act BETWEEN : PATRICK JOHN ROUGHAN Applicant AND: MAXWELL ROY COULSON, REX SMALL, ALLAN ADAMTHWAITE, ROBERT GARRETT, JOHN RUDDER, MURRAY BENNETT, NEVILLE PROUD, BARRY COLE, JAMES BENNETT, JOAN WATSON, LORRAINE EDWARDS, GRAHAM SHAW, JOSEPH VITULLO, KATHIE EVANS, LESLIE PARSONS and THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION Respondents CORAM: Neaves J. DATE: 31 October 1983. REASONS FOR JUDGMENT This is the return of a rule granted on 10 August 1983 to Patrick John Roughan ("the applicant") calling upon the respondents to show cause why certain orders under sections 140 and 141 of the Conciliation and Arbitration Act 1904 ("the Act") should not be made. The respondents are The Australasian Meat Industry Employees' Union ("the Union"), an organization of employees registered pursuant to the Act, and the persons who comprise, and at the relevant time comprised, the Committee of Management of the Newcastle and Northern Branch of the Union. The applicant is, and has at all material times been, a member of the Union and of the Newcastle and Northern Branch. The Union did not take any part in the proceedings and submitted to such orders as the Court might see fit to make. The applicant seeks relief in respect of resolutions passed at a meeting of the Committee of . Management of the Newcastle and Northern Branch of the Union on 2 May 1983 providing for the employment of one of the respondents, Mr. Murray Bennett, as a "temporary relief organiser" with remumeration of $350 per week and with sick leave and other entitlements as provided in the Clerks State Award. For the applicant it was submitted that the Committee of Management, in purporting to employ Mr. Bennett (who held office as Branch Treasurer) as such temporary relief organiser, was acting otherwise than in accordance with the Federal Rules of the Union. Alternatively it was said that, if the rules purported to authorise Mr. Bennett's employment, the rules were contrary to a law within the meaning of paragraph 140(1)(a) of the Act or imposed on members of the Union conditions and restrictions which are oppressive, unreasonable or unjust within paragraph 140(1)(c) thereof. Finally, it was submitted that, if the rules purported to authorise the employment and were not invalid, the decision of the Committee of Management to employ Mr. Bennett was not made bona fide. To understand the issues that arise in the case it is necessary to refer to some of the Federal Rules of the Union. Rule 49 is headed "Branch Government" and, so far as material, provides: - "Officers and Committee of Management. Each . Branch shall have a President, Vice-President, Secretary and Treasurer. Each Branch shall be governed by a Committee of Management of such officers and such number of committeemen as hereinafter set out elected by the Branch, provided that where any Branch is divided into sub-branches the committcemen shall be elected by the sub-branches on a basis of representation to be decided from time to time by the Branch Committee of Management. Each Branch may have as additional officers an organiser or organisers and assistant secretary, who when elected, shall be members of the Committee of Management. Newcastle and Northern Branch: The Committee of Management of the Newcastle and Northern Branch shall consist of the President, two Vice-Presidents, Secretary, Assistant Secretary, Treasurer, Organisers and seven representatives elected from the members in the area covered by the Council of the City of Newcastle and the Lake Macquarie Shire Council, and two representa- tives elected from the members outside that area. FIVE shall form a quorum. The Executive shall comprise President, two Vice-Presidents, Secretary, Assistant Secretary, Treasurer and Organisers, who shall administer the business of the Branch between meetings of the Committee of Management. (Three shall form a quorum). Fifty (50) financial members of the Branch may have a Special Meeting called for the purpose of reviewing any matter decided by the Committee of Management upon written request to the Secretary. The Committee of Management shall meet at such times as may be decided upon from time to time." Rule 51 deals with the powers and duties of Committees of Management and Executives. Its provisions include the following - "The functions of all Branch and Sub-Branch Committees of Management and Executives shall be to administer the rules for the benefit of the members, to carry out the policy of the Union, to deal with all matters and transact such busi- ness as may arise, and endeavour to carry out the objects of the Union. They shall decide in all cases for which no provision is made in these rules. The Branch Committee of Management or Branch Executive shall meet at least once a month. 4, Prd All decisions of the Committee of Management or Branch Executive shall be binding on the members unless negated or amended by the majority of members present at a meeting specially summoned to deal with the matter under consideration. Provided that this does not apply in the case wherein a fine has been imposed on any member." Rule 53 is headed "Branch Sub Branch and District Committee Elections". Sub-rule (1) provides - "Nomination and Election of Officers. A ballot shall be conducted not later than the thirty-first day of December, 1969, for such of the following positions as defined in Rule 49 - President, Vice-Presidents, Secretary, Assistant Secretary, Treasurer, Organisers, members of the Committee of Management, Federal Council Delegates and any other positions decided on by the Committee of Management of the Branch, and henceforth such ballot shall be conducted on every fourth year." It is unnecessary to set out the whole of the provisions of the rule. It is sufficient for present purposes to note that the rule provides for the conduct of elections by secret postal ballot, for the appointment and duties of returning officers, for the nomination of candidates for election, for the voting and for the conduct and duty of scrutineers. Paragraph (c) of sub-rule 53(19) provides - "Any person elected pursuant to these rules to fill an interim vacancy shall be designated by " the word 'Acting' preceding the office to which he is elected for the remainder of the term." Rule 54 deals with casual vacancies and provides - "Casual vacancies for Branch and Sub-Branch Officers, Organisers, Queensland District Committee Officers (as defined in Rule 49, of these rules,) Branch and Sub-Branch Committee of Management members; District Committee members and Federal Council Delegates shall be filled in the same manner as provided for in Rule 53 of these rules." Rule 55 is headed "Duties of Officers". Included within that part of the rule dealing with the office of Branch President is a provision (sub-rule 55(a)(5)) that - "Each Branch shall have the right to employ the Branch President in a full-time organising capacity." In relation to the duties of organisers the rule provides (sub-rule 55(d)) - "(1) The Committee of Management may at any time determine the number of Organisers that may be employed by the Branch, and, in the event of the necessity to increase or decrease the number, between elections, the Committee of Management shall have full power to act. (2) Such Organisers shall be under the direct supervision of the Branch or Sub-Branch Secretary, who shall be subject to the direction of the Committee of Management of the Branch, and such Organisers shall carry out such duties as are allotted to them. (3) They shall report to the Branch or Sub- Branch Secretary each day, unless otherwise directed, and shall pay in all moneys collected at regular intervals. (4) They shall attend all meetings and give information and advice when required to do so on all matters arising out of their respective duties. (5) They shall be paid such salary weekly as may be fixed by the Committee of Manage- ment or by an independent Arbitrator, who may be a Conciliation Commissioner." In January 1976 the applicant was employed by the Newcastle and Northern Branch of the Union as a tempor- ary field officer. In 1977 he was elected for a term of four years as an organiser of that branch. At the next periodic election held in 1981 he was returned unopposed to one of the four offices of organiser within the branch. Three other persons were also elected unopposed as organisers, they being Mr. B. Cole, Mr. N. Proud and Mr. B. Tobin. Mr. Cole and Mr. Proud are respondents to these proceedings. The four organisers were elected for a term which will expire in July 1985. The applicant was employed full-time as an organiser at a salary fixed by the Committee of Management. He continued to be so employed until 15 March 1982 when the Committee of Management as then constituted, at a special meeting, carried a resolution in the following terms:- "That because of the reduction in membership which is approximately 30% and substantial losses for the past 18 months, that is, three (3) half years totalling $51,452.00 the staff be reduced by two (2) Officials as per auth- ority vested by the Committee of Management as provided by Rule 55 - Duties of Officers Sub-Clause (d)(1). Such termination shall apply in consideration of seniority, that is, Mr. B. Tobin and Mr. P. Roughan, are the Organisers to be terminated." = The applicant then applied to this Court by rule co show cause for orders under sections 140 and 141 of the Act in relation to that resolution. In those proceedings (Roughan v. Coulson & Ors. (1982) 2 I.R. 145: 3 I.R. 393) it was contended on behalf of the applicant that the effect of the resolution was that the applicant had been removed from the office to which he had been elected and that, if rule 55(d)(1) was the source of power to adopt such a resolution, the rule made provisions which were contrary to paragraph 133(1)¢(£), and consequently of paragraph 140(1) (a), of the Act. It was also contended that the rule, so construed, was contrary to paragraph 140(1)(c) of the Act. Evatt J. at first instance took the view that, by adopting a resolution reducing by two the number of offices of organiser within the branch, the particular offices were abolished but there had been no "dismissal from office" of the former holders of those offices within the meaning of that expression in paragraph 133(1)(£) of the Act. Rule 55(d)(1), therefore, in his Honour's view, did not contravene paragraph 140(1)(a) of the Act. His Honour also heid that there was no ground for concluding that rule 55(d)(1) contravened paragraph 140(1)(c) of the Act. The rule to show cause was, therefore, discharged. From that decision the applicant successfully appealed to a Full Court of this Court. On 16 December 1982 the Full Court allowed the appeal and ordered that the . respondents to those proceedings other than the Union observe the rules of the Union by treating the applicant and Mr. B. Tobin as members of the Committee of Management of the branch for the balance of their terms of office. In a joint judgment St. John and Northrop JJ. said ((1982) 3 I.R. 393 at p. 397) - "It appears to us that the true intention of the rules is that the elected organiser is both a representative of the members on the Committee of Management and in addition there- to, may be employed by the Committee under a contract of employment. The sub-rule [sub- rule 55(d)] contemplates that, for the most part, oxganisers who are elected shall also be employed ........... " Their Honours continued (ibid.) - "Having regard to the fact that organisers in their representative capacity are elected and casual vacancies to their numbers are also required to be elected, we have formed the view that the Committee's power to decrease is to decrease the number employed and not to decrease the number of organisers in their representative function ........... All these factors convince us that, on a proper inter- pretation, it is the employment of organisers under a contract of employment which the Committee may terminate in order to decrease the number employed, which is the object of the sub-rule. Similarly, the number of persons who are employed as organisers may be increased." Smithers J. (ibid., at p. 394) expressed difficulty with the concept that "an organiser who is elected acquires as such and without more the capacities both of holder of the office of organiser and that of employee of the organization". His Honour considered that . the relationship of employer and employee was not created by election to the office of organiser and that there were no other circumstances from which the creation of such a relationship was to be inferred. However his Honour felt constrained, reading the rules as a whole, to hold that the word "employed" in rule 55(d)(1) referred both to organisers who were engaged under a contract of employment and to those who held their position by virtue of election. Accordingly, rule 55(d)(1) authorised the Committee of Management to terminate two of the offices of the organization which had been created by election. So to construe the rule did not, in his Honour's view, involve any contravention of paragraph 133(1)(£) of the Act. But his Honour could see no reason why the termination of the office of elected organiser should affect the existence and occupancy by the person so elected of the office of member of the Committee of Management. The position then obtained that the applicant in the present proceedings was no longer employed by the branch as an organiser but he continued to hold office as a member of the Committee of Management. During the last week of March or the first week of April 1983 the applicant received a telephone call from the Secretary of the West Australian Branch of the Union, Mr. A. Payne, outlining the problem that that branch faced by reason of one of the organisers within that branch terminating his employment with the branch. The applicant" was asked whether he was interested in taking up a position of field officer with the West Australian Branch on a trial basis for a period of up to three months. Mr. Roughan understood that an election was to be held to fill the casual vacancy caused by the resignation of the organiser but that that election could not be held for at least three months. He was being offered, he said, the position of temporary field officer as a trial with the possibility 10. that he might be a candidate for the position of organiser at the proposed election. Mr. Payne informed the applicant that he had already discussed with the Secretary of the Newcastle and Northern Branch, Mr. Coulson, whether Mr. Roughan would be interested in a temporary organiser's position in the West Australian Branch. Mr. Payne also said that Mr. Coulson had given a good report on Mr. Roughan's ability. Mr. Payne asked the applicant to give consideration to going to Western Australia. The applicant said that he was interested as he had been unemployed for some considerable time and that he would give the matter his consideration. The applicant again spoke to Mr. Payne by telephone within the following week and informed him that he was interested in the position but would Like to discuss the matter personally with Mr. Payne. Mr. Payne came to Sydney to attend a meetingof the Federal Executive of the Union on 18 and i9 April 1983. On the evening of 18 April 1983 Mr. Roughan and his wife met with Mr. Payne and the Federal Secretary of the Union. The prospect of Mr. Roughan going to Western Australia was discussed. Mr. Roughan told Mr. Payne that he was still interested in going to Western Australia and that, subject to further discussion with his wife, he would probably go. In answer to a question from Mr. Payne, Mr. Roughan said he would not be available to go until after the meeting of the Committee of Managemen il. of the Newcastle and Northern Branch to be held on 2 May 1983. Mr. Payne asked Mr. Roughan to consider going to Western Australia at an earlier date because of the diffi- culties the branch in Western Australia was facing. Mr. Roughan agreed to consider doing so. On the way home to Newcastle from Sydney Mr. Roughan discussed the matter with his wife. It was decided that he would take the position and that he would probably go to Western Australia the day after the Anzac Day long week end, that is on Tuesday, 26 April 1983. Mr. Roughan on 20 or 21 April 1983 informed Mr. Payne by telephone that he would go to Western Australia on the following Tuesday. Mr. Roughan says that on 22 April 1983 he telephoned one of the female employees in the office of the Neweastle and Northern Branch and informed her that he would not be available to attend the meeting of the Committee of Management on 2 May 1983 or the next three monthly meetings of the Committee. He asked the employee to arrange to tender his apologies for his non-attendance at those meetings. Mr. Roughan further says that, beyond stating in that telephone call that he "was going to try a position elsewhere", he ~ gave no details of why he was expecting to be absent from four meetings of the Committee of Management. He identified the date of the telephone cail by reason of the fact that he realised on the Friday that, although he was leaving for Western Australia on the following Tuesday, he had forgotten to inform the Committee of Management that he would not be available for those meetings. 12. Mr. Coulson gave evidence that he had received from his personal secretary (not being the person to whom Mr. Roughan had spoken) a message that Mr. Roughan had asked that the Committee of Management be informed of his inability to attend the four meetings of the Committee. Mr. Coulson said that the message was conveyed to him at some time during the week commencing 11 April 1983. Mr. Coulson had become aware of the possibility that Mr. Roughan would go to Western Australia because of conversations he had had with the West Australian Branch Secretary, Mr. Payne, but in the light of Mr. Roughan's evidence, which I accept, that a decision was not reached to 'take up the position in Western Australia until after his meeting with Mr. Payne on 18 April 1983, Mr. Coulson must be mistaken as to the date on which he was informed of Mr. Roughan's message. Except for a brief period from 11 to 14 June 1983 when he returned to New South Wales, the applicant remained in Western Australia performing the duties of the position of temporary field officer from 27 April 1983 to 29 July 1983. As a result of a telephone conversation on 8 June 1983 the applicant first became aware that the Committee of Management of the Newcastle and Northern Branch had on 2 May 1983 resolved to employMr. Bennett as a temporary relief organiser. He then decided to return to New South Wales to find out more about what had occurred. 13. On 20 April 1983 Mr. Cole suffered a serious heart attack. As a result he spent a period of time in hospital and was absent from his employment with the branch between 21 April 1983 and 10 July 1983. Mr. Coulson was advised on the afternoon of 20 April 1983 of the nature of Mr. Cole's illness and of his admission to hospital. He from time to time made enquiries of the doctor treating Mr. Cole and was informed, some four or five days after 20 April 1983, that it was likely to be a substantial period before Mr. Cole would return to work and that for some time after his return he would not be able to carry out his full duties. Mr. Coulson concluded that Mr. Cole's absence would cause significant problems and delays in the representation of the industrial interest of members of the branch. He also concluded that - "there was a pressing and real need for the Branch to obtain temporary assistance, both during the absence of Mr. Cole on sick leave and to assist him for some period upon his return to duty, having regard to Mr. Cole's likely incapacity for full duties." During the week following his becoming aware " of Mr. Cole's illness Mr. Coulson discussed the position with the Branch President, Mr. Small, who suggested that he, Mr. Small, could, perhaps, fill the position as an organiser in accordance with rule 55(a)(5). Mr. Coulson agreed with him that this was possible. 14. Mr. Bennett was also in touch with Mr. Coulson by telephone during that period and was informed of Mr. Cole's illness. Mr. Coulson denied that there was any discussion between himself and Mr. Bennett concerning the action which should be taken to obtain temporary assistance during Mr. Cole's absence. Both Mr. Small and Mr. Bennett gave consideration to the matter prior to the meeting of the Committee of Management on 2 May 1983 and were in a pesition to apply for the position when it was discussed at that meeting. It appears that Mr. Bennett had discussed the matter with his wife. Mr. Small had discussed it with his wife and had arranged with his employer to take leave of absence from his employment to enable him to perform the duties of temporary relief organiser within the branch if he were offered the position. Mr. Coulson did not inquire of the applicant or Mr. Tobin whether either of them wished to be considered for a position of temporary relief organiser. It is also clear that Mr. Coulson took no special steps to inform ~ other members of the Committee of Management prior to the meeting on 2 May 1983 that there was a need to obtain temporary assistance during Mr. Cole's absence. The meeting of the Committee of Management on 2 May 1983 commenced at 1.00 p.m. Following a motion of 15. condolence in respect of a deceased member apologies were received. It was noted that Mr. Roughan had apologised for four meetings. The minutes record that towards the end of the meeting under the item "General Business" the Branch Secretary, Mr. Coulson, informed the Committee that Mr. Roughan had gone to Western Australia for a three months' trial as an employed organiser. Mr. Coulson gave evidence that this information was also conveyed to the meeting at the time Mr. Roughan's apology was recorded in answer to a question addressed to him concerning the reason for Mr. Roughan's absence. The Branch Secretary informed the Committee that Mr. Cole had suffered a heart attack and was in a serious condition, that it was expected he would return to work in due course and that it was thought that when he did return to work it would be "on selected duties to some degree". A resolution was passed authorising the Branch Secretary to continue paying Mr. Cole while he was off work on leave of absence due to illness. a The Branch Secretary then asked the Committee what should be done in the circumstances. One of those present, Mr. Adamthwaite, suggested that a temporary organiser be appointed for the duration of the emergency. The Branch Secretary endorsed this suggestion and stressed that, due to the urgency of the situation, suitable arrangements should be made as soon as possible to employ a temporary relief 16. organiser. Mr. Adamthwaite stated that, since there was an emergency, difficulties would be encountered if the position had to be advertised. The President, Mr. Small, informed the Committee that he was prepared to offer his services as a temporary relief organiser for the period of the emergency. On the motion of Mr. Adamthwaite, seconded by Mr. Garrett, a resolution was carried that the Committee of Management "appoint a Temporary Relief Organiser". The President again stated that he was prepared to take leave of absence from his work for a period of time and that he proposed to vacate the chair while the matter was discussed. Mr. Adamthwaite as Vice-President took the chair. Mr. Bennett informed the Committee that he would be prepared to take on the position of temporary relief organ- iser. The Vice-President asked whether anyone else was interested. There was no response. The Branch Secretary informed the Committee that the temporary relief organiser would not be treated as a_ normal organiser. He said that the temporary relief organiser would travel with another organiser, first with Mr. Proud and then with Mr. Cole when he returned to work. He further said: "We are going to employ someone to help us out. What happens in the future we do not know. We are filling an emergency, a relief Organiser. The person who is selected would be a person who has qualifications to assist an Organiser". 17. The two applicants then left the room and the Committee, after further discussion, resolved that the temporary relief organiser should receive remuneration of $350 per week and be entitled to sick leave and other conditions in accordance with the Clerks State Award. He was not to receive the weekly allowance payable to an organiser or to be given a motor vehicle. The remuneration agreed upon was less than that being paid to the two organisers who had been elected to that office, Mr. Cole and Mr. Proud. Mr. Small and Mr. Bennett were then separately interviewed. After further discussion in the absence of the applicants the Committee, on the motion of Mr. Garrett seconded by Mrs. Edwards, resolved that the services of Mr. Bennett be retained for the position of temporary relief organiser "in that he is filling the position left by Organiser Mr. Barry Cole who will be off work for a considerable time due to a heart attack." Mr. Small and Mr. Bennett were then informed that Mr. Bennett was to fill the position. Mr. Bennett commenced duty in the position on 9 May 1983. I am satisfied, and so find, that Mr. Bennett was employed in a temporary capacity to meet the emergency situation that had arisen by reason of Mr. Cole's illness. Although no specific date was or could be fixed on 2 May 1983 as the date on which his temporary employment was to terminate, 18. I am satisfied that the period of temporary employment was to continue only during such period as Mr. Cole was unable to attend to his duties by reason of his illness and for such further period after Mr. Cole returned to work during which his state of health required that he be given assistance. The resolutions passed on 2 May 1983 provide, in my view, no authority for Mr. Bennett's employment beyond that period. In the light of those findings I now proceed to consider the submissions put to the Court. For the applicant it was submitted that the resolutions of the Committee of Management at its meeting on 2 May 1983 for the employment of Mr. Bennett as a temporary relief organiser were not within the powers conferred on the Committee by the Federal Rules of the Union. It was said that the rules of the Union require that a person may only be employed as an organiser, including a temporary relief organiser, if that person has first been elected to the office vf organiser. To support this submission reliance was placed on rules 53, 54 and 55. Alternatively it was said that if the Committee - . of Management had power to employ as a temporary relief organiser a person who had not been elected to the office of organiser, the Committee could only employ in that position the person who is for the time being the Branch President. This was said to arise from the express provision in rule 55(a)(5), that provision excluding, by implication, any express power in the Committee to employ any other person. 19. » In the further alternative it was submitted that, if rule 55 authorised the Committee to appoint a person as a temporary relief organiser and there was available a person who had been elected to the office of organiser but who was not at the time the position was filled employed as an organiser within the branch, the Committee was bound to offer the position to that person. It was also submitted that, if each of the above submissions were rejected, the Committee had no power to fill the position of temporary relief organiser without advertising the vacancy. In my opinion the first of the above submissions should be rejected at least in so far as the employment of a temporary relief organiser is concerned. Clearly rules 53 and 54 were not applicable as there was no vacancy in an office requiring to be Filled by election. As Mr. Bennetc was employed only in a temporary relief capacity I have no need to express a view whether the Committee may properly employ as an organiser on a permanent basis a person who has not been elected to an office of organiser within the . branch. I should perhaps say, however, that I incline to the view that the Committee may do so at least pending the next periodic election held in accordance with rule 53. Such a conclusion would, I think, accord with the construction of the rules adopted by the Court in Roughan v. Coulson & Ors. (supra). 20. In my opinion the power in the Committee to employ Mr. Bennett as a temporary relief organiser is to be found either in rule 55(d)(1) or in the general power given to the Committee by rule 49 to govern the branch. Any decision made by the Committee in exercise of that power is subject to review by the members of the branch in accordance with the rules (see rules 49 and 51). I am also of the opinion that the presence in the rules of rule 55(a)(5) dogs not limit the power of the Committee of Management in employing a person as a temporary relief organiser. I agree with Smithers J. in Roughan v. Coulson & Ors. (supra) that the provision was included to make plain that the employment under a contract of employment of the Branch President may with propriety be negotiated between him and the branch. I can find no justification in the rules for limiting the power of the Committee to employ as a tem- porary relief organiser a person who has been elected to the office of organiser or for requiring that the position be offered to such a person if one should be available. * Nor can I find any justification in the rules for a requirement that the position of temporary relief organiser be advertised as a condition precedent to the employment of a person in such a position. These are all matters of management of the affairs of the branch upon which the Committee, subject to the power of review to which I have 21. referred, must exercise its best judgment. A decision of the Committee to proceed otherwise than in a manner which the submissions suggest is proper is not, for that reason alone, outside the Committee's power. The applicant next submitted that, if andin so far as the Federal Rules of the Union authorised the employment of Mr. Bennett as a temporary relief organiser of the Newcastle and Northern Branch of the Union, the rules - (a) are contrary to a law within the meaning of paragraph 140(1)(a) of the Conciliation and Arbitration Act 1904; or (b) impose on members of the Union conditions and restrictions which are oppressive, unreasonable or unjust within paragraph 140(1) (ec) of the Act. Paragraph 140(1)(a) of the Act provides that the rules of an organization are not to be contrary to, or fail to make a provision required by, a provision of the Act, the regulations under the Act or an award, or otherwise _ be contrary to a law. In support of this submission the applicant identified as the relevant provisions of the Act and the regulations under the Act paragraph 133(1)(£) of the Act and paragraph 115(1)(c) and sub-paragraphs 115(1) (d) (i) and (v) of the regulations. 22. Paragraph 133(1)(f£) of the Act provides, inter alia, that the conditions to be complied with by organisations registered pursuant to the Act include a condition that the rules of the organization - "shall not provide for the dismissal from office of a person elected to an office within the ..... organization unless he has been found guilty, in accordance with the rules of the ..... organ- ization, of misappropriation of the funds of the wees organization, a substantial breach of the rules of the ..... organization or gross mis- behaviour or gross neglect of duty or has ceased, according to the rules of the ..... organization, to be eligible to hold office." I am unable to see any basis for holding that the rules in so far as they authorised the employment of Mr. Bennett as a temporary relief organiser are contrary to paragraph 133(1)(f) of the Act. Neither the rules nor the resolutions passed on 2 May 1983 operated to dismiss the applicant from any office to which he had been elected. Sub-regulation 115(1) of the Conciliation and Arbitration Regulations, read with sub-regulation 115(2), sets out conditions which are prescribed conditions to be complied with by an organization applying for registration - ' m pursuant to the Act. Substituting "organization" for "association" wherever appearing, paragraph 115(1)(c) prescribes as a condition that - "(c) the organization shall not be wholly or partially formed, organized, supported, maintained or conducted, directly or indirectly, for the purpose, or with the view, of opposing, injuring or prejudic- ing the interests of employers or em- ployees, as the case may be, whose int- erests it purports to represent, further or protect." 23. Sub-paragravhs 115(1)(d)(i) and (v), making a similar substitution, prescribe as conditions - "(d) the affairs of the organization shall be regulated by rules specifying the industry in or in connexion with which the organization is formed, the pur- poses for which it is formed and the conditions of eligibility for member- ship thereof and providing, in relation to the organization, for - (i) the election of - (a) a committee of management of the organization and of each branch of the organization; (b) officers of the organization and of each branch of the organization; and (c) any conference, council, panel or other body (additional to the committee of management), which is empowered to deter- mine policy or to exercise functions of management in the organization or branch; (v) the control of committees of the organization and its branches by the members of the organization and the members of the branches, respectively." In my opinion there is nothing in the rules of the Union relevant to the issues that arise in this case which is contrary to the provisions of regulation .~ 115 on which counsel relied. So far as paragraph 115(1) (ec) is concerned, there is no doubt that Mr. Roughan is dissatisfied with the decision which the Committee of Management made to employ Mr. Bennett but he has not established any ground for his contention that action has been taken contrary to that paragraph. So far as 24, the other provisions are concerned, to construe the rules of the Union as authorising the Committee of Management to employ a person as a temporary relief organiser provides, in my view, no basis at all for the contention that the Committee of Management is not under the control of the members of the organization. The Committee of Management is itself an elected body and rule 49 provides in the case of the Newcastle and Northern Branch that fifty financial members of the branch may have a special meeting called for the purpose of reviewing any matter decided by the Committee (see also rule 51). Paragraph 140(1)(c) of the Act provides that the rules of an organization are not to impose upon applicants for membership, or members, of the organization conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act, are oppressive, unreasonable or unjust. The objects of the Act to which particular attention was drawn are those set out in para~ | graphs (e) and (f) of section 2 namely - "(e) to encourage the organization of repres- entative 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." 25. There is, in my opinion, no substance in the submission that the rules of the organization in so far as they permit the employment of a person as a temporary relief organiser in the circumstances which have been shown to have arisen in the conduct of the affairs of the Newcastle and Northern Branch of the Union are oppressive, unreasonable or unjust. I reject the submission. It was also submitted that if the rules permit the employment of Mr. Murray Bennett and are not invalid as being contrary to sub-section 140(1) of the Act, the decision of the Committee of Management to employ Mr. Bennett was not made bona fide. I have not found it easy to under- stand the basis for this submission as the applicant in evidence expressly disclaimed any intention on his part to impute mala fides to the members of the Committee of Management. Reference was made to material concerning the level of membership of the Newcastle and Northern Branch of the Union and its financial position with a view to ' showing that the financial position of the Union had improved since the decision was taken by the Committee of Management on 15 March 1982 to terminate the services of two organisers, including the applicant. In relation to membership, it was said that there had been an increase in numbers since 1981 although it was conceded not a very large increase (6,159 in December 1981, 6,734 in December 1982 and 6,451 in September 1983). There had been an increase in members' contributions from $158,042 in the six months ended 31 December 1981 to $196,245 in the similar period ended 31 December 1982. There had been an increase in the Accumulated Funds Account of the branch from $517,627 as at 31 December 1981 to $595,484 as at 31 December 1982 and $656,282 as at 30 June 1983 (though the latter figure would not have been available to the Committee on 2 May 1983). Attention was also drawn to the fact that, although expenditure exceeded income in each of the three periods of six months ended 31 December 1980, 30 June 1981 and 31 December 1981 (the deficit totalling $51,452), income exceeded expenditure in each of the periods of six months ended 30 June 1982, 31 December 1982 and 30 June 1983 (the excess totalling $119,959). Again the figure for the six months ended 30 June 1983 would not have been available to the Committee on 2 May 1983. As I understood it this material was relied upon to support the contention that the Committee of Management should, in the light of the improved financial position of the branch, have reinstated the applicant as an employed organiser on a full-time permanent basis in-_ stead of employing Mr. Bemnett as a temporary relief organiser. In my opinion the material relied upon provides no basis for contending that the decision of the Committee of Management was not made bone fide. The submission rises 27. no higher than saying that the Committee did not take the decision that, in the applicant's view, was the proper or better decision to make in the circumstances. Finally, it was said on behalf of the applicant that Mr. Coulson as Branch Secretary had failed to put all relevant material before the Committee of Management when it was considering what course to adopt in the face of Mr. Cole's illness and that he did not act in an even handed way in ensuring that persons, including the applicant, who might have been interested in offering themselves for employment as a temporary relief organiser were informed of the vacancy so that they might, if they wished, apply for it. I have already set out what Mr. Coulson did following upon his being informed of Mr. Cole's illness culminating in the decision of the Committee of Management to employ Mr. Bennett. But even if one accepts that Mr. Coulson should have enquired of the applicant whether he was interested in the position (notwithstanding the knowledge that Mr. Coulson had of the offer which had been~ made to him by the Secretary of the West Australian Branch) and, if he were, to put his name forward for consideration by the Committee of Management, the fact that he failed to do so does not establish that the Committee acted otherwise than bona fide. 28, In the result the rule to show cause should be discharged. I certify that this and the twenty-eight (28) preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Neaves. {0° Or Associate Dated: 31 October 1983. 29.