In THE FEUFPAL COURT UF AUSTRALIA) ) No.3 of 1983 SOUTH GUESTRALIA LISTRICT FEGISTRY) ) rs INHJUSTRIAL DIVIS LON ) In the Matter of an application pursuant to Sectiom 159 of the ComerjJaistaon and Arbitration Ach 1904 45 amended And In the Matter of the Foysl fiisti alian Nursing Federation (Sonia Australian Branch) REASONS FOR JUDGMENT 10 November 1983 Fither gd. Gn 3 May 1953 fiane Faterson, 3 member of the Royal Australian Nursing Federstion (South Australian Branch) ("the Branch") tadged pursuant to $§.159¢1) of the Conciliation and Arbitratiom Acct 1904 (Cfthe Act") an spplication for an enquiry by the Court. She claimed im the application that Libere had been 4 number of grregudartties im or an commexicn wilh an election for kranco. This application Tl whe office of Rianeiy Secretary an th was, am sceordance with 6.19904) of tne Act, referred to the Court, the election nmaving been conducted under s./70 oF tne Act by or oon benslf of the SJndustrial Reaistrar. The hramch 15 3 branch of the koyal Australian Nursing Federstion ("the Union") winich 1s am orguminabtion of employees registered under the Act. 7") The election was comucted, contemporsneausly with elections for a mumber of other offices in the Branch, by Graham John Carey, an Executive Officer of the Industrial Election Section, Australian Electoral Office,Adelside. Nomanations cpened on 9 August 1982 and closed al 5.00 p.m. on 30 Anquset 1982. Two mominsalions were receirved for tne office of Branch Secretary, mamely from Disne Paterson and Marilyn Kay Ee aumont. Le The ballot in respect of wii positions ancluding that of Branch Secretary, opened an G6 Qelober 1962 and clased on 26 UcLlLober L982. In 811 Gi69 ballot papers were issued. 'lhe result of the poll for Braneh Secretary Was declared on & November 15902 together with the results of olhber elections. The figures in the Returning Officer's Statement of Results of tnat date in respect of Lne office of Branch Secretary were as follows: "Branch Secretary Besumont, Maralyn Kay 1085 Faterson, Tiane 910 Formal Ballot-papers 1995 Informal Bballob-~pspers 23 Total HOL6 Elected Besumont, Marilyn Kay. The arregulsrities of which Diane Faterson complained in her application for an enquiry were particularised as follaws: "i. Rule i18¢b)a of tne kules or the South Australian Branch of the Organication concerning gualificalion for office and nomination was breached an relation ta the successful candidate aun the election whereby the nomination for office of the candidate was 3. wrongly accepted and the candidate was wrongly elected. Tne full and free recording of votes by all persons entitled to record votes was prevented and hindered by the use of certain resources of the Organicsation by certain officers ara members ot the South Australian Branch an support of the successful candidate im Lhe election. Kules 2, 6¢b) and L9¢e) of the Kules of the South Australian Branch of the Organication vere breached im relation to the membere to whom ballot papers in the election were issued," Tasnme Faterson also supplied ain her application the teets wpon whieh she relied to support her allegations of irregularities. ITowili at thas slags omly set aut these facts which related to tie first of the Lhree sbhovementioned lrlegularities. She stated: Fin respect of the irregularity alleged herein and oumbered 1. the Applicant says: C1) kule 18¢6)(1) pravides: 'In any elections conducted for the office of Brunch Secretary prior to 1st dJanitary, 1934 28 candidate sh3sll have been 3 fully financial menkber of the Assocration for 3 period of one year immediately preceding tne date of nhomanatlrcon for affice...% Tne election was conducted by the Australian Electors! OGtfice pursuant to Section 179 of the Conerlistion and Arbatralion Act 1904 (35 amended) . The ciosing date for nmomianslions for the office of secretary in the election was Monday S0th Auguse 1982. As sat ihe ssid closing date Yor nominations bwo nominations for tie office of Secretary were received. The percons nominated were nyself and one Marilyn Kay Beaumont (hereansfter called Beaumont). The two (G) Qn 4. nominations were aceepted by the Australian Electoral Uffice. A ballot was conducted for the office af secretary, and subsequently on $th November 1982 Hesaumont was declared to have been elected thereto. Keaumont was mot eligible to have stood for ror been elected to the office of secretary as she had mot been a fully financial member of the South Australian Branch fo 3 period of one year initediatlely preceding the date al nomination tor office." Line question whether persons who had nominated offices were eligible under the Rules of the Branch Lo nomina Mr. Carey had this to say im am affidavit sworn by Him in enquiry: Nr. membership both liane nominate. whether at August 1962 looked only Qn Ll September 1982 [I called st the Kent Town Office of the Branch to establish whether each of the forty two nominalions received for thc Various positions had heen made in azcordance with the Kules af the Federation, 1.@. Branch Rules 18€a>(€1), 16¢€6)(€1) and 18¢d). It was my purpose to check whether each of the persons nominated (nominees) had been a member of the Federation for the period 30 Augusl 1981 to 30 August 19982, whether he/she was, as at 30 August 1982, financial am respect of the Beriod 30 August 1981 to 30 August 19382, and whether the nominstlors were financial, 23s at 30 August 1982.% Carey came to the conelusion, based on cer cards waintained am the office of the branch, aterson and Marilyn Eeaumont were eligitdle camming to this conclusion he did not cons either of the candidsutes had been unfimanci3l. ascertain whether at that date each of tiem for te, tie tain that to 1der any time during the period of one year preceding 30 He had paid subseriptions payable an respect to the preceding 12 months and had beer a member throughout that period. Counsel for Wiane Paterson contended that Marilyn Beaumont was mob entitled ta mominate for the office of Branch Secretary because she farled tu qualify under the provisions of $.18(b)¢1) set out above. lt was submitted that the correct construction, of that provicion required that a candidate snould be a funaneral nember conbltrnuously throughuut the preceding cerigod af LS months and at no time during that period an untunancral wember. The ossential gqueections for determination om this aspeet of the enquiry are whether that is the correet manner in which to interpret s5.16(b)(1) and in partaicwlsr the words "fully financial member*™ and the ascertainment of the circumstances in which a member ceases to be a finaneial or fully fanancisl Lenber . The questions Which must be decided sre mot easy to resolve and the relevant rules are difficult to understand and to implement. The rules governing, these malters, in tne case of the Branet, are Lhe Federal Rules of tiie Union (sometimes called the Ac¢ocistion Rules) and the standard Branch Rules which have been modified an respect of certzin particular aspects. The modifications expressly supercede the standard Branch Rules. For the purpose of financial membership the following Federal Rules have to be considered: "9. (a) (ke) (c) Cd) (e) (£) - Subscriptions Each nember shall pay an annual subscription to the Branch to which he or she is attached, or its authorised callector. Tha the anaunt of the anmual subscription shall be determined from time to time by the Branch Couneil but shall mot be more than 1% of the highest third yesr registered nurece amimval salary paysble an Alstralia as st December SI of the preceding year or less than tne amount paid per member as capitation fee to tie Tederal Council. In determining the suGcumt of the annual eubseription payable by each mewher the Pranch Council shall have regard to the cateyories of membership and may assess the subscription for each class of membership aceordingly. Notwithstanding asnytning contained in these Tules the Braneh Council may remit the subseriplion am whole or in part, for such time a5 aut decides, of any member twnatble to pay hecause ot illness. Subseriptions shall be paid annually or by instalments in respect of such lesser periods 35 the Branch Council determines. é& member paying has or her subscription annusily shall be unfinancial af the subscriptions has not teen paid within three calendar months of the due date and a menber paying his or "her subscription by instalments ain respect of same lesser period than the full year shall be deemed unfinancial 1f an anstalment 1s not Pald wabtnon one manta af the due date for its payment as determined by the Branch Council. A member wno 16 mot /Finaneiral' shall not be entitled to any benefit of the Association except at the direction of the Branch Council and shall be lishle to have his or her nane removed from the Register if unfinanmcial for more than six months. Notwithstanding anything hereinberore ecantained, the &ssociatlion may arrange for the collection of subscriptions on tehslf of Gr Lmrough amy other organinstion or kindred body. th) 10. ll. Cad (b> 7» Notwithstanding anything contained im these rules a member may whhorine his or her employer am writing to deduct his or her subscription from his or her salary and pay such subscription to the Rranch Couneil, and such member shall tbe financial so long as such authority remains in force. - Transier of Membership A member changing his or her place of employment may transfer nis or her membership +o 4 more convenient Branch providing he or sne requests such 3 transfer. - Termination of Mentership Membership may be terminsbeds— 42) (iid (112) by death; in tne case of expulsion for breach of the Kules; in the case of student murses, by terminalion of training before completion of same. ®# wenber may resign, 1f he or she wishes to resign, by motace in writing, 1f2- (1) (11) (aa) (iv) the member ceases to be employed in. or an comnmection with, the andustry of mhursing; or the motice 1s given not less than three tonths before the resignation 15 to take effect and 1s subject to the payment of fees as previously specifiedy such notice 45 delivered ta and/or received by the Association as specified aun the Rules of the Branch of which the person 15 3a menbers; and provided that nolwithstanding the provision of sub-clanse (11) a notice of resignation in writing shall be deemed to be valid if the member 15 informed ain writang by or on hFehalf of the organisation bhst the resignation has been accepted. * The eligibility of a persom to nomanste as Secretary of the Union 1s provided ty rule 40(c) of the Federal Rules, nanely wl "{c) A candidate for the position of Secretary snhajl nave been a fully fananec1al wmember of the Assoeiation for a period of two years immediately preceding the date of nomination for office..." fidard Branch Rules on those matters sre as follows: "Ue (a) Each member shall p2y such annual subscription as shall be determined from tine to time by bhe Branch Conunmerl but which shall nol be more than $120 or less than the amount pald per wenber as cspitation fees to tne Federal Council. (Bb) Subseriptions shall be p3id in accordance with the provisions of Rule 9 of the Association's Rules. 6. Unfimancial Members (3) A member who 15 unfinancisl in secordance with kule 9 of the fAssociation's Rules may be fined by resolution of the Branch Council. It shall be lawful at any meeting of the Kranch Council to instruct the Secretary by resolution carried by 2 majority of the Council present, to sue for recovery of arrears of subscriptions, fines und levies. (b) No unfinmancisl member shall be entitled to attend any meeting of the Rrarch or ta nominate any pereon or to be nominated for any office ain the Association or the Branen mor sh3ll any wunfinancisl member te eligible to vote ain any ballot conducted by the Kranch. Unfanancisl enters shall also be aneligible to receive any of the benefits or services of the Branch, unless the Branch Couneil otherwise directs. 18. @uslification for Office and Nomination (a> (12) A candidate for the Branch Council or for a position of Officer of the Branch Cother than the Branch Secretary) shall have teen 3 fully fainsneial member of the Aesoci2tion for 2 period of one year immediately preceding the date of nomination for office. C11) wae Ch) (1) In any elections conducted for the office of Branch Secretary prior to }st January 1984 a candidste shall have been a fully fanancial wember of the Association for a period of one yesr immediately preceding the date of nomination for office. In Bll elections conducted for the office of Franch Secretary after ist January 1984 a candidate shall have beem 3 fully finaneial member of the Association for a period of two years immediately preceding the date of nomination for office." In the crise of Nsarilyn Beaumont at ais necessary to secide whelbher she nas been "a fully financial member of the ssociation far a period of one year immediately preceding the date of momaination for office." a1.e. 27 August 1983 in her case. The fact that she may have been on some occ3sions im arrears with her subscription 1s immaterial unless she became im comsequence of such arrears unfinancial 1.6. ceased to be a financial member. If it is difficult to comprehend, as 1t 1s, what qualification 15 Tequired by the Kraneh Rules, it 1s well-nigh impossible to assess with certainty by roference to the records of the Brinch whether che. or Piane Paterson for that matter, was in arrears or wunfinanc1al at any particular tine. Counsel for Lhe Branch cantended in the first instance for the construction placed on the provision by Mr. Carey, manely aS requiring 13 monthe menbership with the subscription for that 10. period fiuliy paid wp at the dite of nomainalion. This interpretation secords with the view of Smithers J. and Evatt J. um Lovell's cs3se anfr3a when construing what I assess as 3 somewhat different provision. Counsel for Diane Paterson and counsel for the Union conlended that the rules required that the person nominated should have been contantously throughout the preceding period of 12 months a fanancral wenmber. Art alternative submission hy counsel for the Branch put forward in his reply was that Loe provision required the nominee to be 3 Member paying tLhrougnaul the period a full subscription and mot a lesser subscription assessed for 4 different category of membership under clause 9c) of the Federal Rules. In the case of Lovell and Others yv Federated Liquor and Allied Industries Employees Union of Australia (1978-79) 22 A.L.R. 704 the rule providing the qualifications for office which was construed by the Court was as follows: "All Officers, members of the Manayement Committee, representatives of Couneirl shall be financial members for 12 calendar months ammedistely prior to nomination. All officers amd representatives BE prescribed an this rule shall remain 3 financial wenber or forfeit all positions he or she nolds.* An smendment to this rule whach required "3 contintious period of 24 montns immediately prior to nomination and who have not been im arrears of contribution during that period" was rejected as Oppressive, unreasonable and unjust. This rule was considered by Smithers J. im that case on paye 7c. Evatt J. li. He said: "If one looks at the farst sentence one sees thal toe critical feature 1s that it directs attention to the situation which wall exigt at the moment tefore monination. The rule is expressed in terms which look Yorward and provide a test of tie Qualifications of the candidate to be applied not earlier than immediately before nomination. The rule prescribes what at that tame the condition of tne candidates 'shall be'. It as to be implemented by anquaring, at the moment before namanation, not what the candidate's financisl condition tas been during 12 months previausly bust what at as Lhen. The question to be asked isi "Is the candidale today a fainsrmceisl member for twelve manths intediately prior to this date' if he fas then paid all dues payable by him and has been a member for 1123 montns the snswer mist be an the sifirmative. At b-hat stage the candidate is fananeral an respect of every mowent af that 13 WOMiIS » Ik 1s mot to the poant that during thal 12 months there might have been perirads when he was mot fananersal. Of course 14 15 possible to fount an argument that the first sentence of r4 does require that the candidate should be 3 person who during the 120 months nas never been umfaianci1al. But the foregoing considerations point ain the opposite direction. Also it 15 to be observed that the subject matter of the rule is tne Linancisality of officers and committee hiombers, that at 1s onmly concerned with the financiality of members considerred as sctual or potential officers or conmittee members. In that case 2b 18 current finanmcialaity and mot past financialazty that as im point. In this respect the provisions of the second sentence shed light on the Farst sentence. Tf one first resds the rules as thougn Lhe words 'tor twelve calendar monlas' were omitted, then clearly the only question would be: 'Is the cundidate now a financiszl menber*' When those words are inserted they are given full effect by attributing to them as stipulation as to the time "1m respect of which' the person at tiat date as 3 financial member, Tne expression 'for' can be read quite nmalurally as 'ain yespect oi'. In a rule layang down restrictians on the right to stand for office it ought to be read as imposing only those Testrictions which sre unambiguously or at least Clearly imposed." on page 736 adopted this reasoning. 12. It as my opanion that the qualification rule ain thas matter differs significantly from Lhat construed by Smithers J. In the first aianstance it indicates quite unambaguously that the inquiry 18 What the conmdi:lion of the person momanated "shall have been® for the ¢pecified period. The rule considered by Smilhers d. prescribed what the condition ""sniall tbe' ammediately prior to nomination, lt 16 quite clear that ain Marilyn Beaumont's case it 1s ner past fanancaal state and mot her present condition which 1s under consideration. Furthermore the rule an thas malter has the additional vord ""fuliy® qualifying funancial member and to this word some meaning must attach. ITreject the alternative contention of counsel for the Branch that at relates to the payment of 3 full rather than lesser cubscription. In my opinion it relates to the financial condition of the nominee during the preceding period and mot the category of membership he or she holds or the amount of annual subseription payable for that category. A 'fully financial nember" in Rule 18¢b)¢€1) must be consistent with the concept of am "unfinancial member" im Rule 6G and im particular the disqualifiacations of such a member under Rule 6(b). Rule 6¢4) requires the conditzron of an unfananciral monber to be delernined by reference to Rule 9 of the Federal Fules. Likewise in my Opinion the question whether = person hus been 3 fully famancaal member during the specified period must be determined under Rule 9 and the circumstances in which under that Rule a wember becomes unfrinancisl. 13. In my opinion Kute 18¢h)(1) requires that a person nomanated must have been 3a financ1ral member throughout the preceding period of 12 months. I consider this means that that person shall mot have been unfanainezal at any time «during the specified period. This conclusion 18 consistent with Rule 6 of the Branch Rules when 1 refers to a person being unfinancial. It receives stupport from Federal Rules 9¢€e) and (£) which use in'liscriminately the expression 'unfainaneral' and mot financial znd epecily when 4 persom who 1s in arrears with payments becomes yunEinancral. In respect of 2 member paying an anual subscription, it 1S perwissitle for the subscription to be up to wa 3 months an arrears before Lie wember becomes unfainanecisl. o long as the subscription is paid wathin 3 months of the due date for an annual subscription (1.e. by 30 September in any year) the nember wali not have become unfinancial pursuant to Rule 9¢(e) and thus will have been fully financial throughout the year. In my opinion the word "fully* means that the member must be fully paid up as 8 financial member snd has no reference to category or class of memberzhip. Likewise the fact that thas qualification relates to "fainanc1al" wember andicates thit arrears are immaterisl uniess im consequence the member loses status as 3 financial member and becomes unfainaneial. It 16 a much more difficult situation af the member wath enpress or implied approval, peys the subscription otherwise than annually. Thas daffaiculty 15 compounded when it as appreciated that the Branch Couneil has not expressly determined, 3s required 14. by Kule 9¢(e), an respect of what lesser periods instalments of subscriptions may be paid. The Branch Counerzl however offers in its application for membership form the opportunity to pay a subscription half-yearly and must te held ampliedly to have approved this lesser period. It may 31s0 1m cansequence of its office practice and procedure ain relation to payment and collection of subscriptions be held to have approved other lesser periods for payments of instalments. it 15 not however mecessary for me to rule on these diffacuit matters on tiis octasion. What rb 18 mecessary for me to decide is the equally difficult question of when a member who autnoericed his or her employer to make deductions (tues deductions") under Rule 9Ch) of tie Federal Rules becomes unfinanecial. The privileged position of 3 member under that Rule 15 acknowledged ty all, sand there 1s no daspute that such 3 member 1s fanancial s0 long as the authority to deduct remains in force. It 1s the existence of the suthority and mot the making of deductions thereunder whith provides the pravilege. However 3 problem arises when the nember leaves tne employment of the employer to whom the authority is directed. Does the member forthwith becume unfinancial upon the umbrella of oan authority to the employcr being withdrawn? Qr does that member have 4 period of grace such as provided by Pule 9Ce) to members paying by annusl subscription or by anstalments for any lesser period determined ty the Branch Councal? Counsel for tne Union contended for the tormer alternative and counsel for Uiane Faterson for the latter. It was mot disputed that the 1S. obligation of such 3a member on dues deductions 1s to pay in one sum the amount of anmmual subscription appropriste for the kalance of the year or alternatively to atithorize another employer to make deductions. However the problem 15 whether the nember his any and af so what period of grace in which to comply before becoming unfinancial. Counsel for the Union drew altention to Lhe opening words of Rule 9¢(h), mamely "notwithstanding anything contained in these rules" and contended that, as a consequence Rule 9¢h) overrides other provisions of the Rules. I secept this fubmission, tut as limiled to the matters cuvered by Rule 9¢h). It as only to this extent thst other provisions, and ain particular Rule 9(e), are overriden and have mo application. In my Opinion Rule 9¢h) does not purport to have anytoing to say on the question of when 3 member becomes unfinancial. All at provides is that, notwithstanding other requirements of the Rules concerning payment of subscriptions, 3 member 16 fanancial so long aS am suthority in writing to his or her cmployer to deduct subscriptions 18 im force. It 1s therefore open to cansider whether Rule 3¢e) can be useq to determine when 2&2 tenber wha has been om dues deductions becomes unifinancial. Two thangs are certsin; Rule 9(e) does mot expressly cover the situation and there 15 mo other provision of the Federal or Branch Rules which purports to give guidance. As Rule 9(e) permits wmenbers to be im arrears for 3 16. monlis or one month, as tne case may te, 1t would be very unfair and prejudicial to deny members ceasing dues deductions a period in which either to pay up the balance of the annual subscription or Lo sign another authority. lt certainly has mot been the practice of the Branch to trest such members 3s untainancial forthwith on leaving employment. 1t 15 my opinion that kule 9¢e) should be resd as providing that a member on dues deduction 1s deemej to be paying subseriptions in respect of 3 'lesser period determined" by the Branch Council, and thal the due date for the purpose of deening such menber unfanmancial 1s the date of Leaving the employment of the pergon to whom the authority has been given. On this basis 3 menber on dues ceductions has one month sfter the authority cesses tao have effect in which he or she may be in arrears before becoming unfinanciasi. It may be said that such a construction of the Rules receiverd little support from a critical consideration of the particular provisions. if such be the case, 1t discloses the existence of 3 complete hiatus im the Rules in respect of members on dues deductions, and the evidence is that they represent a substantial proportion of the members of the Branch. To deny these members the opportunity or indulgence of bheing in arrears for a short period before bhecoming unfinancial would seem very unfair and unreasonable. Moreaver such a situation would be quite contrary to the manner in which these members sare treated by the branch in compiling its records and anfornming members of their obligstion to bring subseriptions wp to date. In my Opinion the only praetical and just solution 1s to conclude that members om dues deduction remain financial 17. so long as within one month after the pre-existing avlhority expires he or she either pays the balance of the year's Subscription or $219ns a further deduction authority. It 16 in this context that 1t 1s necessary to assess the circumstances of Marilyn Beaumont. In so doing it as not essential to consider and make findings on her situstion conzeguent upon the transfer of ner membership From New Sauth ny Wales. The essential matter a5 that after making payments whebner by way af dues deductions or cash payments which were yccepted 3s paying ner subseription to 31 December 1981 she made no further payment until 16 Harch 1982. At this time she paid an amound purporting to be am anmial subscription which was recorded as being refershle to a period of 12 months from that date. However subsequently her records were adjusted so that the parlicular anount paid was, properly in my opinion, applied in the first anstance to arrears dating tack to 1 January 1982. The crucial matter however 18 that she was an arrears tor virtually two and oahalf months, and on my eariier findings she was therefore unTinancral for the weeks subsequent to 1 February 1982 umtal 16 liarch 1982. lt follows tnat she was mot 3 financial member throughout the "period of one year ammediately Preceding the date of nomination for office". She was rot fully fanancisl durang this period and so was not eligible to mominate or be nominated for the office of Secretary of the Pranch. Iwill near the parties om the question whether I should 18. ? order another elechionm or as to what course 1 should now adopt. need at this stage to investayate and make findangs on I see no the other alleged arregularities, | certify that this and the 17 preceding pages are a true copy of the Reasons for Judgment of Mr Juste Fisher Noto ane Associate Dated: lo ({. TN