CATCHWORDS Industrial Law - application under s.141 of Conciliation and Arbitration Act for enforcement of rules - provisions of rules relating to election of delegates to A.L.P. State Conference ~ whether Union State Council 1s the constituency for election nominated by the rules - whether the rules empower the State Council to select itself as the constituency, and in contrast to election by all financial members of the Union in the State - relevance of s.133 of the Act - whether "substantial compliance" test is applicable - proper exercise of the discretion of the Court. Conciliation and Arbitration Act, 1904 - ss.4, 133, 141 Rules of Amalgamated Metal Foundry and Shiprights Union ss. 2, 20, 21, 23, 25 ADAMS V HILL (No. I.20 of 1984) CORAM: WILCOX J PLACE: SYDNEY DATE: TUESDAY, 19 JUNE, 1984 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. I.20 of 1984 INDUSTRIAL DIVISION ) BETWEEN : GEOFFREY DAVID ADAMS Applicant AND: M.K. HILL AND ORS. Respondents REASONS FOR JUDGMENT CORAM: WILCOX J DATE: 19 JUNE. 1984 PLACE: SYDNEY This is the return of an order to show cause made by St.John J on 17 May, 1984. The matter concerns a dispute between members of the Tasmanian branch of the Amalgamated Metals Foundry and Shiprights Union as to the method of election of delegates of the Union to meetings of the Australian Labor Party, with which the Union is affiliated. Affidavit evidence was filed on behalf both of the applicant and the respondents but it was agreed between counsel that I should deal with the matter by reference to a statement of agreed facts (Exhibit B). The facts set out hereunder are taken from that source. The applicant is a financial member of the Union and 1s State Secretary of its Tasmanian branch. By virtue of his office he is a member of the State Council of the Tasmanian branch. The remaining members of State Council are amongst the respondents to this Application. The Union is an organisation registered under the Conciliation and Arbitration Act. The practice of the State Council of the Tasmanian branch. during recent years and until 28 May, 1984, has been to choose the Union's delegates to the State Council of the Australian Labor Party by resolution of Council. Delegates have been appointed to represent the Union only at a specified A.L.P. State Council Meeting, not to hold office for a period of time. Nominations for selection, to use a neutral word, as a delegate have not been invited from amongst the members of the Tasmanian branch of the Union, nor has a returning officer been appointed to conduct the election of such delegates. All delegates have been members of the Tasmanian branch of the Union. although not necessarily members of the Tasmanian State Council of the Union. A meeting of the Tasmanian State Council of the Australian Labor Party is scheduled to be held at Launceston on 23 June, 1984. No delegates have yet been elected to represent the Union at this conference. However, on 28 May, 1984, Council resolved: "That the State Returning Officer be requested to call nominations for deleqates to the A.L.P. State Council in accordance with State Council Rule 21 and that nominations open 30 May, 1984 and close at 10.00 am 21 June, 1984 and that the Returning Officer take the necessary steps to advise all members accordingly. That the next State Council of the A.M.F.S.U. be held at 9.30 am on 22 June, 1984, at Launceston and that the State Returning Officer and Deputy Returning Officer be requested to be in attendance and to conduct a ballot for the A.L.P. State Council delegates if required". On 29 Mav, 1984, Mr G Watkins, State Returning Officer of the Union forwarded to all members of the Union within Tasmania a notice calling for "nominations for nine delegates" to the Tasmanian State Council of the Australian Labor Party. The notice indicated that the term of office would be for two years commencing 23 June, 1984 and that successful candidates will be required to attend A.L.P. State Councils when they are called. Nominations were to open on Wednesday 30 May, and close at 10.00 am on Thursday 21 June. By an advertisement in "The Mercury" published on the same day public notice was given of the calling for nominations. The decisions made by the Union State Council on 28 May, 1984 depart from previous practice in two respects. First, State Council decided to call nominations from the membership of persons for selection as Union deleaates to the A.L.P. State Council: in the past the names had been proposed in a resolution formulated within State Council 1tself. Secondly, the resolution of 28 May, 1984 contemplates that State Council will select. from amongst those nominated, persons to hold office as delegates for a term of two years, thus departing from past practice whereby delegates had been selected to attend only a single specified meeting. Notwithstanding these changes. the applicant contends that the procedure proposed to be adopted fails to comply with the requirements of the Rules of the Union. The fundamental issue between the parties, having regard to the new procedure, is the nature of the constituency to select delegates. The applicant contends that delegates must be elected by a constituency consisting of all financial members of the Tasmanian branch of the Union. The respondents submit that it is open to the Union State Council itself to act as the constituency for selection of candidates. Rule 21 of the Union's Rules is entitled "Delegates to Representative Bodies". It reads as follows: "lL, The National Council shall arrange for the election of deleaates to the A.C.T.U. Congress on the basis of four delegates each from Queensland, New South Wales and Victoria and two from each of the other States, and in addition to those so elected may appoint delegates from its number together with the President and Secretary. The remainder of the delegation shall be selected by the State Council of the State in which the Congress 1s to be held, from financial members in conformity with Rules 40 and 43. State Councils shall arrange for the election in each State of the Union's delegation to Conferences of the Australian Labor Party. They shall also arrange for the election of deleqates to represent the Union on State and Provincial Labor Councils and executives of the Australian Labor Party. Election of these delegates must be held at least every 3 years. Candidates must at the date of nomination have been members for at least two years continuouslv, be financial in accordance with Rule 40 and 43 and to have been working at the trade for the immediate preceding twelve months or whilst financial members of the Union have been elected as an officer of or employed by any organisation to which the union is affiliated or as a working class member of Parliament. 4. Except as provided in Clause 2, paragraph 2 of this Rule, delegates shall be elected every second year in accordance with these Rules." Despite the assumption in clause 4 of Rule 21 no provision is made anywhere in the Rules for the manner of election of the delegates referred to in Rule 21. This omission is the cause of the present dispute. The parties agree that there is, in Tasmania. no "Conference" of the Australian Labor Party, the meeting of the A.L.P. State Council fulfilling this same function, and that, therefore, 1t 15 appropriate to read R.21.2, in its application to the Tasmanian Branch. as referring to the Union's delegation to meetings of the State Council of the Australian Labor Party. The argument before me has ranged widely but the parties agree that the question turns upon the extent of the power given by clause 2 of Rule 21. Mr Trew. QC, on behalf of the applicant, argues that the function of the State Council of the Union, under that clause, 1s limited to the administrative task of arranging for the carrying out of an election. He contends that the clause gives no authority to the Union State Council itself to act as the constituency for the election. Mr Shaw, on behalf of the respondents, contends that the words "arrange for" imply that the State Council is itseif to act as the constituency or, alternatively, are wide enough to allow the State Council, in making arrangements, to choose a constituency, being a recognised organisation within the Union, including itself. I do not think that Mr Shaw's primary submission can be accepted. A requirement that the State Council "arrange for" the election does not. in the natural meaning of the words, suggest that the State Council shall itself elect the deleaates. The Shorter Oxford Dictionary (3rd Ed.) defines the verb 'arrange', relevantly, as "2. To put (the parts) into order; to adjust. ... 4. To place in some order, dispose 7. to plan, or settle details, beforehand". In their context the words in the Rule suagest a requirement that the State Council make the administrative arrangements to ensure an election. They do not extend to include a power in State Council itself to elect. I add some additional considerations. Had it been intended that the State Council shall not only ensure that an election takes place but also act as the constituency for the election it would, I think, have been very easy for the clause to so say. There was at close hand a model for the framing of such a clause. Clause 1 of Rule 21 deals with the method of selection of the Union's delegates to the A.C.T.U. Congress. The deleaates are to be selected by a mixture of three different methods. The first cateaory of delegates is to be elected on the basis of a particular number of delegates from each State. The clause provides, in respect of these delegates, that "National Council shall arrange for the election". Additionally, however, the National Council "may appoint delegates from its number". Delegates in this second category are to be selected by the National Council. Those delegates must be members of the National Council. The third category of delegates is to be "selected by the State Council" of the relevant State "from financial members ....". Delegates in this third category are, in effect, to be elected by the State Council but nominees may be drawn from the ranks of financial members outside State Council. The present relevance of clause 1 is that it clearly contrasts the obligation to "arrange for the election" of certain deleqates with the entitlement of National Council and the various State Councils respectively to make their own appointments. The repetition in clause 2 of the formula "shall arrange for" indicates, to my mind, that in relation to deleaates to A.L.P. conferences the first method of selection was intended, ie election by a constituency other than the organisation having the duty of making the arrangements. Mr Shaw's alternative proposition emphasises the width of the word "arrange". He arques that the power to "arrange for the election" of delegates includes a power to nominate the constituency to select the delegates. Mr Shaw concedes that the matter is not completely at large; the State Council would not be entitled to remit the election to particular individuals or to an ad hoc committee. He contends, however, that it is open to State Council to select any of the recognised organs of the Tasmanian branch of the Union to act as the constituency. He nominates as possibilities the State Conference, the State Council or the membership as a whole. It is, he contends, a matter for the discretion of the State Council which constituency it selects. I think that there are two difficulties about this alternative submission. The first is that the formula "arrange for" 13 not really apt to include the exercise of a judgement so fundamental as the choice of the constituency for the election. The dictionary definitions suggest the making of merely administrative and procedural decisions. The second difficulty is pointed up by Mr Shaw's concession, necessarily made to avoid the possibility of results highly unlikely to have been contemplated by the authors of the Rule. If there is the constraint conceded by Mr Shaw, this can be only 10. because there is something in the Rules to indicate a contemplation by the draftsman of the Rules that the nominated organs are, at least, possible legitimate constituencies and thereby to be distinguished from an illegitimate constituency such as the committee of the local dogs' home. Is there, then. anything in the Rules to indicate that either State Conference or State Council is a contemplated possible constituency? The powers of State Conference are governed by Rule 23. Clause 2 of that Rule lists a number of powers, most of which are couched, (as one would expect) in general terms: see paras (a) to (e) inclusive. None of those powers is, in my view, apt to include the election of deleqates from the Union to the Tasmanian A.L.P. Council or even to indicate that State Conference was seen as a possible constituency for the exercise of that power. Para. (f) empowers the Council to: "Elect by and from 1ts own delegates, deleqates to State Council, State Administrative Committee, State Vice-President. and State Trustees and to elect by and from 1ts members State Representatives to Nationai Council". The specification of the powers of State Conference ' in reqgard to the election of deleqates to other committees is precise. It would be odd if, by the side wind of the exercise ll. of an unexpressed discretion of State Council, there was to be added a furher elective function: that of electing delegates to the A.L.P. State Council, and this without any specification as to whether candidates for elections must be delegates to State Conference, members of State Conference or need have neither qualification. The powers of State Council are set out in Rule 25 of which clause 2 reads as follows: "2. The State Council shall generally serve the purpose of an executive body of the State Conference in the State concerned and may convene any Special State Conference of the Union considered necessary or desirable, the agenda for which shall be determined by the State Council and limited to those matters notified un accordance with the principles of Rule 10. It shail, subject to the powers of the State Conference. National Conference and the National Council generaliy direct the work of the Union in the State, carry out particular responsibilities allocated to it under these Rules and take all steps necessary and in accordance with these Rules to strenagthen the Union and further the interests of the members". Mr Shaw arques that the second sentence of this clause 183 appropriate to confer powers upon the State Council to act as a constituency for an election of deleqates to the A.L.P. State Council if. pursuant to its obligation to "arrange the election", the Council so decides or, putting it 12. another way, to indicate that State Council is a potential legitimate constituency. I do not accept that submission. The first sentence of clause 2 designates the role which State Council is to play, that is "an executive body of the State Conference". The obligations referred to in the second sentence are obligations appropriate to be undertaken by an executive body involved in day to day administration. As might be expected, the obligations are couched in wide and general terms: "generally direct the work of the Union", "take all steps necessary ... to strenathen the Union", "further the interests of the members". None of the formulae is, in my view, an indication of the existence of a role of choosing the people who will represent the Union ie. the members of the Union in the deliberations of the A.L.P. State Council. Significantly, but no doubt appropriately given the concept of State Council as an "executive body", the Rules make no provision for State Council to elect any office-bearers whatever. The Rules make specific and detaizled provision for the election by members of various State officers: see Rule 2 of Part "B". They make no express provision for the election by members, whether assembled in local branches or otherwise, 13. of delegates to the State A.L.P. Conference or Council. Mr Trew argues that if there is a gap in the provisions of the Rules, so that they contain no provision, either express or implied, for election by the members, this does not derogate from his submission that the procedure proposed to be adopted by the State Council is invalid. A gap would simply mean that, unless and until the Rules were altered, no delegates could validly be appointed by the Union to an A.L.P. State Conference. However, he submits that there 1s in fact no problem, that Rule 21 clearly implies an election by financial members. In support of his submission Mr Trew referred me to the provisions of the Conciliation and Arbitration Act, 1904, as amended, and, in particular, to the requirement of s.133 that the Rules of registered organisations shall provide for the election of the holder of each office within the organisation either by a direct voting system or a collegiate electoral system (para. (a) ) and, inter alia, shall provide for secret ballot, with absent voting (para. (d) ). Mr Trew argues that the position of a delegate from the Union to the A.L.P. State Council is an "office" within para. (d) of the definition of "Office" in s.4 namely: "(d) every office within the organisation or branch for the filling of which an election is required to be conducted within the organization or branch". 14. Mr Trew argues that the office is "within the organisation" because the delegates are required to be financial members having a particular connection with the trade (Rule 21.3) and they act on behalf of the State Branch of the Union when attending meetings of the A.L.P. State Council. a function directly related to one of the objects of the Union: see R.20.1l(e). Mr Trew further contends that the effect of Rule 21.2 is that an election is required to be conducted within the State Branch. There is much force in the argument that the position of delegates to the A.L.P. State Council is an "office" within para. (d) of the definition, so that the rule requirements of s.133 are applicable. The word "office" 1n this context has a wide application: see Peaq v Taylor (1959) 1 FLR 274; Elections for Offices in Amalgamated Engineering Union (1961) 3 FLR 63 at pp 66-67. However, I do not think that I ought to decide that question in this case. The matter before the Court is an application for enforcement of the Rules, under s.141 of the Act. There is no challenge, under s.140 of the Act, to the validity or legal adequacy of the Rules. The Union itself would be a necessary party to any such challenge. It is not presently a party to these proceedings. It 1s inappropriate to express a view contrary to the valdity and legal adequacy of the Rules of a registered organisation except in proceedings properly constituted in which that matter is directly in issue. 15. The only question I have to decide is whether there arises from the Rules an implicatioin that the constituency for the 'election' envisaged by R.21.2 is to be the whole of the financial membership. If that question be answered affirmatively then the duty of State Council is to 'arrange for' such an election. Unless and until the Rules are amended, whether pursuant to a 8.140 order or otherwise, so as specifically to incorporate the requirements of s.133 the State Council is not bound to ensure that the election satisfies all of the standards contemplaed by s.133. I have come to the conclusion that there is an implication in the Rules that the constituency for election of delegates to the A.L.P. State Council is to be membership as a whole. Rule 21.2 speaks of State Councils arranging an "election" in each State of the Union's delegation. The word "election" is apt to cover a selection by all financial members. It is used, for example, in Rule 2 in relation to the vote by members to determine office bearers at both National and State level. Candidates, in those cases, must have a qualification of length of membership and relevant employment but the candidates are not confined to persons who serve upon any particular committee of the Union. The concept appears to be an election by the total membership of persons 16. who may be mere members, in the sense that they are not also presently office bearers. Rule 21.3 provides a similar qualification for candidates for election as delegates to the A.L.P. State Council. By contrast, although the symmetry is not complete, the provisions which entitle a committee of the Union to elect or appoint a particular office bearer generally specify that the candidates are to have some particular qualification by reference to membership of an existing committee: see for example the provision cited above for election of various persons by State Conference. I think that the specific provision for candidates to be drawn from the general membership is a pointer to an intention that the constituency for the election of delegates shall also be the entire membership. There is a further and more fundamental reason for reaching this same conclusion. Rule 20 includes as objects of the Union "the furtherance of political objects" including: "(e) by direct representation at A.L.P. Conferences" The Union is that body or persons, aualified by their employment, who are the financial members thereof: see Rule 1, clauses 1A, 1B. The Rules therefore provide that one of the objects for which the members have come together is that they, the financial members, be represented at A.L.P. Conferences. They can only do this by duly appointed 17. delegates. In order to achieve the object specified in Rule 20(e) the members must either themselves appoint deleqates or else, by the Rules, delegate to some other person or organ of the Union the function of appointing delegates. Once 1t be concluded that the Rules do not delegate to any other person or organ the task of appointing delegates then it follows that this function remains vested in those constituting "the Union", namely the financial members. In relation to representation of a State Branch those members who constitute that Branch are the persons who must join together to select the persons to represent them under Rule 20(e). For these reasons I have reached the conclusion that, upon thelr proper construction, the Rules do not permit the State Council itself to act as a constituency for the purpose of electing delegates to the A.L.P. State Council but, on the contrary, require the State Council to arrange an election of delegates by the qeneral membership. Mr Shaw argues that, nonetheless, there is no threatened breach of the rules in regard to the forthcoming election. that any requirement for election by the whole membership is not a mandatory requirement but is merely directory and that election by State Council, a body composed of persons elected directly or indirectly by the total membership, is a substantial compliance with the requirements of the Rules. Reference was made to Scurr v Brisbane City Council (1973) 133 CL 242; see 18. especially per~ Stephen J at pp. 255-256. I do not think that the application of the mandatory/directory dichotomy is relevant to this case. There is not here a procedural non-compliance, in relation to which it is necessary to enquire whether it was intended that strict compliance be a pre-condition to the validity of the act. Here, in my view, there is simply no power for State Council to do what it proposes to do. Furthermore, I do not see how it can be a substantial compliance with a requirement that constituency 'X' elect delegates to have those delegates elected by constituency 'Y¥Y'. It may be true that the then members of constituency 'X' selected, at an earlier point of time and for different purposes, those who now constitute constituency 'Y' but it does not follow that each constituency would today select the same people to act as delegates. Section 141(1G) of the Act empowers the Court to give directions for the performance of any rules of an organisation. Mr Shaw has submitted that if, contrary to his submissions, it be held that the procedure proposed to be implemented by the Union State Council is in contravention of the Rules then, nonetheless, the Court should, in the exercise of its discretion, decide not to intervene. He points out that the practice of the Union, over at least a number of years, has been for delegates to the A.L.P. State Council to be appointed by a resolution of the Union State Council, that the Union State Council in any event proposes to "open up" the 19. election procedure by calling for nominations from the general membership and that it would be difficult, if not impossible, for the Union State Council to arrange for an election of delegates by members in time for the A.L.P. State Council meeting scheduled for Saturday 23 June, 1984. In Cook v Crawford (1982) 43 ALR 83 a Full Court of this Court held that the Court had a discretion to refuse relief to applicants who had established a breach of s.141 of the Act and, indeed. in that case the Court held that relief should be refused because of the conduct of the applicants. In Cook v Crawford, Smithers J at p. 114 said: "It would appear that an order should be made where the Court decides as a matter of discretion that the circumstances are such that for the purpose of promoting the objects of the Act it would be beneficial to make the order. So fundamental is it that rules be obeyed that it is only in rare cases that the Court refuses an order." There are here no matters of personal conduct to be considered, as in Cook v Crawford. The arguments put by Mr Shaw are arguments merely of convenience depending heavily upon the imminence of a particular meeting of the A.L.P. State Council. However, the delegates which the State Council proposes to choose are intended not merely to represent the Council at this particular meeting of State Council but to hold office for a period of two years and to represent the Union at all State Council meetings during that period. It 20. would be unfortunate if the result of an order in these proceedings was that the Union was not represented at the meeting of the A.L.P. State Council on 23 June. However, there is nothing before me to indicate that there is any business scheduled to be considered for that meeting which is of particular moment to the Union. It seems to me that for the Union to be unrepresented at one particular meeting is a lesser evil than for it to be represented by persons not validly appointed, pursuant to the Union Rules, over a number of meetings during the next two vears. Some members of the Union, what proportion they would constitute I cannot know, may prefer to be unrepresented at a particular meeting rather than to be "represented" by people not validly elected and who may be advocating views which they do not share. I have no way of judaing whether the persons who might be elected by the membership as a whole, as I think the Rules require, would be substantially the same people as might be elected by the members of State Council in accordance with the procedure presently envisaqed. The formal order sought by the applicant is an order that the respondents, being members of the Union State Council, "perform and observe the Rules of the Organisation by arranging for the election in accordance with Rule 21(2) thereof of the Organisation's delegation to conferences of the Australian Labor Party and, in particular, of the Organisation's delegation to State Council of the Tasmanian al. branch of the Australian Labor Party". This form begs the main question in the proceedings and it was agreed at the hearing that, if the applicant was entitled to succeed, a more precise order, involving directions under s.141, would be needed. As at present advised, I do not think it to be appropriate that the directions ao further than to require that the State Council arrange for the election of delegates by the financial members of the Branch in Tasmania. The State Council would be entitled, in making those arrangements, to adopt the standards envisaged as rule requirements by s.133 and it may take the view that those standards provide guidance through otherwise uncharted seas. But, unless and until the Rules are changed to incorporate those requirements, the s.133 specifications do not legally bind the Union or the State Council. Consequently, there appears at this stage to be no power vested in the Court to require them to be applied. However, I indicated to counsel, at the end of the argument, that I would afford to the parties an opportunity to consider the appropriate form of order in the light of the conclusions I have expressed on the matters of substance. 22. I will stand over the further hearing of the matter to a date to be fixed. I direct the applicant to bring in for consideration Short Minutes of the Orders sought by him, in the light of my conclusions. At that time I will deal with any matter of costs. I certify that this and the preceding 21 Ctoe*yo -) pagesare a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox Associate Dated: /4/s[ty 7