Q2\, CATCHWORDS INDUSTRIAL LAN - Rules of registered organization - requirement that State Council arrange the election by members of delegates to ALP State Council - failure to arrange election. Whether there are effective means under the rules to fill positions. Whether Court may be satisifed that an order would not do substantial injustice to any member - discretion of the Court. Jurisdiction to make directions for the performance or observance of rules - discretion as to method of election committed to State Council - whether Court should make directions overriding the exercise of that discretion. Conciliation and Arbitration Act 1904 3.171D, 3.141 AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION & ANOR V GEOFFREY DAVID ADAMS - NO. 1.23 OF 1984 GEOFFREY DAVID ADAMS V M K HILL & ORS - NO. 1.20 OF 1984 CORAM: WILCOX J DATE: 31 JULY 1984 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION CORAM: DATE: PLACE: 1. ee ee ee BETWEEN ORDERS WILCOX J 31 JULY 1984 SYDNEY Application dismissed. No. 1.23 of 1984 AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION & ANOR Applicants GEOFFREY DAVID ADAMS Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 1.20 of 1984 GENERAL DIVISION BETWEEN : GEOFFREY DAVID ADAMS Applicant AND: M_K HILL AND ORS Respondents ORDERS CORAM: WILCOX J DATE: 31 JULY 1984 PLACE: SYDNEY 1. Order that the respondents M K Hill, PG Finn, D Price, S Emmett, G Robertson, D Harding, G Marston, AI Bell, M Peck and D Wilson being, with the applicant, the members of the State Council of the Tasmanian Branch of the Amalgamated Metals Foundry and Shipwrights Union cause the said State Council to meet within seven days of the making of this Order and, at such meeting, to make arrangements for the election of nine delegates of the said Union to the State Council of the Tasmanian Branch of the Australian Labor Party, such election to be open to all financial members of branches of the Union within Tasmania. The arrangements so made must be such as to provide for the declaration of the result of that election not later than Friday 21 September 1984. ) reg eg . . ' 2 a, a Oy veh ane te vot IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 1.23 of 1984 GENERAL DIVISION BETWEEN AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION & ANOR Applicants AND: GEOFFREY DAVID ADAMS Respondent No. 1.20 of 1984 BETWEEN : GEOFFREY DAVID ADAMS Applicant AND: MK HILL AND ORS Respondents REASONS FOR JUDGEMENT CORAM: WILCOX J DATE: 31 JULY 1984 PLACE: SYDNEY On 19 June 1984 I delivered judgement in an Application made by Mr G D Adams, the Secretary of the Tasmanian branch of the Amalgamated Metals Foundry and Shipwrights Union. Mr Adams sought directions, under s.141 of the Conciliation and Arbitration Act 1904, in relation to the making of arrangements for the election of delegates of the Union to attend meetings of the State Council of the Australian Labor Party, with which the Union is affiliated. (See Adams v Hill, I.20 of 1984, unreported.) The main issue in those proceedings was whether, upon the proper interpretation of the Rules of the Union, State Council was entitled to select the delegates (as had been its practice at least for a number of years) or whether (as [ decided) State Council was bound to arrange for an election by all financial members of the Tasmanian Branch. On 21 June, after giving to counsel an opportunity to consider my Reasons for Judgement, I made Short Minutes of Orders in that matter as follows: "1. The respondents and each of them perform and observe the Rules of the Amalgamated Metals Foundry and Shipwrights Union ("the Organisation") by treating as invalid and of no force or effect the resolutions of the State Council of the Tasmanian Branch of the Organisation made at a meeting of such State Council held on 28 May 1984 in respect of the election of the Organisation's delegates to the State Council of the Tasmanian Branch of the Australian Labor Party in so far as such resolutions provide or propose that the election of such delegates shall be by any constituency other than the whole of the financial members of the Tasmanian Branch of the Organisation. 2. The respondents and each of them perform and observe the Rules of the Organisation by arranging for an election to be conducted for the positions of delegates to the State Council of the Tasmanian Branch of the Australian Labor Party by the members of Tasmanian Branch of the Organisation financial. 3. Liberty to any party to apply on 48 hours notice to the Court and to all other parties." The State Council of the Union had, on 28 May 1984, resolved to request the State Returning Officer to call nominations for nine delegates to the A.L.P. State Council, nominations to close at 10.00 am on 21 Jume 1984, and that the next State Council meeting would be heid at 9.30 am on 22 June 1984 at Launceston. The resolution of 28 May 1984 had envisaged that State Council would, at that meeting, elect the delegates from amongst those nominees. The delegates elected were intended to hold office for a period of two years from that date. They would have been expected to attend the meeting of the ALP State Council scheduled to be held at Launceston on the following day, 23 June. Both the delivery of judgement and the making of orders was expedited in order to allow State Council to take action consistent therewith at its meeting on 22 June. Prior to the delivery of judgement in matter I[.20 of 1984 an Application was filed on behalf of the Union and Mr JG Kidd, its National Secretary, seeking orders under ss.171C and 171D of the Conciliation and Arbitration Act: matter 1.23 of 1984. Mr Adams was named as respondent. This Application was filed against the possibility that the Court would hold that the election of A.L.P. delegates by members of State Council of the Union, as distinct from the total membership of the Tasmanian Branch of the Union, was contrary to the Rules. That eventuality having come to pass, Application I.23 of 1984 has been brought on for hearing. Simultaneously, the applicant in matter I.20 of 1984 has made application to the Court for further orders pursuant to the liberty to apply reserved in that matter. The two matters have been heard together. The meeting of State Council held on 22 dune did not decide to challenge the correctness of law of my judgement in I.20 of 1984. Indeed, no appeal has been filed and the time for appeal has now elapsed. Notwithstanding those facts, and the urgency which had been said to attach to the appointment of delegates, no action was taken by State Council to arrange an election of delegates by members of the Tasmanian Branch of the Union in accordance with order 2. Instead State Council carried the following resolutions: "That the report from the National Secretary regarding Federal Court Orders be received and noted. The N.A.C. be requested to proceed with validating applications as soon ag possible, and to examine existing rules with the view to implementing appropriate alterations. The State Council take no further action in respect to ALP State Council delegations until further advice is received from the N.A.C.." The "N.A.C." is the National Administrative Committee of the Union. Since 22 June 1984 there have been other meetings of State Council but no decision, relevant to the election of A.L.P. delegates, has been made. The ALP State Council meeting scheduled for 23 June was, in the event, deferred. According to a telex message forwarded by the ALP State Council to Mr Kidd, Council expressed "grave concern" at the Court's decision "which denies the right of the AMF'SU delegation to participate in this Council meeting" and decided "that this meeting be deferred at least until the validating orders sought by the AMFSU are dealt with by the Court, or until such time as Council can be properly constituted". A meeting is now scheduled to be held on 11 August next. At the hearing of these Applications it was common ground between the parties that no invalidity attached to the calling of nominations for the position of A.L.P. delegates in accordance with the resolution of 28 May 1984. I agree with that view. It follows that, at the close of nominations at 10.00 am on 21 June 1984, there was in existence a list of persons validly nominated for election whose names could have been submitted to a ballot of members, in implementation of the order. My decision of 19 June did not require the re-calling or re-opening of nominations. Reference has been made to three possible methods of conducting a ballot of members for the positions of ALP delegates: by a secret postal hallot conducted by the State Returning Officer; by secret ballot at union meetings, with ballot papers being sent upon request to non-attending members; and by a secret ballot supervised by the Australian Electoral Officer in conjunction with ballots for other positions in the Union in which he is currently involved. There is some question about the availability of the third option and, in any event, this would involve some delay. However, the evidence of Mr Kidd satisfies me that each of the first two methods is practicable and immediately available. The time which would be required for either alternative is much the same - about six weeks from the close of nominations to the declaration of the poll. After draw of ballot positions, the ballot paper has to be printed. The Union has its membership list on computer file with a Melbourne direct mailing company. It ought to be possible to post ballot papers to members within fourteen days of close of nominations. It is usual to allow twenty-one days for return of ballots. A further week might be required to count and check the vote. The second alternative would involve ballotting at a monthly meeting of each of the local branches in the State - Mr Kidd thought there were eight local branches - with members being entitled to lodge postal ballots during that month. Once again the total period required - including the printing of ballot papers and the counting and checking of votes - is about six weeks. The period between 23 June 1984 (the date of the deferred ALP meeting) and 11 August 1984 (the date of the now scheduled meeting) is seven weeks. It follows that, if the State Council had moved to arrange the conduct of an election at its meeting of 22 June, such election could have been completed in time for properly elected delegates to represent the Union at the proposed meeting of 11 August. At its meeting held between 1 and 6 July 1984 the National Conference of the Union resolved to amend Rule 21, dealing, inter alia, with the selection of delegates to ALP conferences, 50 as to enable State Councils to appoint such 8. delegates. This amendment will not become effective unless and until it is ratified at meetings of local branches to be held later this year. At the hearing of these applications, in matter I.23 of 1984, the Union and Mr Kidd sought a declaration: "That nine positions in the Tasmanian Branch of the Amalgamated Metals Foundry & Shipwrights' Union (being the positions of delegate from the Tasmanian Branch of the organisation to the Australian Labor Party, Tasmanian Branch) are vacant and there are no effective means under the rules of the organisation to f111 the said positions prior to 11 August 1984", They also sought an order approving the following scheme for the filling of the nine positions: ""(a) The Tasmanian State Council of the organisation, at a meeting to be held prior to 11 August 1984, of which not less than days notice incorporating the terms of this order shall be given to the members of the said State Council, shall elect persons to fill the said positions. (b) The candidates in the said election shall be ali of those persons who had been nominated pursuant to a resolution of the said State Council of 28 May 1984 at the time when nominations closed pursuant to the said resolution on 21 June 1984. (c) The said election shall take place by secret ballot of members of the said State Council. (dad) Persons so elected shall hold the said positions until 31 October 1984 or until further order of the Federal Court of Australia." Mr Adams sought orders in matter I.20 of 1984 directing those respondents who were members of the State Council of the Union to arrange for a secret postal ballot of members, based upon the nominations already called, in accordance with a timetable to be specified by the court. The basis of 'the declaration and orders sought by the Union and Mr Kidd was said to be s.171D of the Conciliation and Arbitration Act. Relevantly, that section provides: "171D(1) An organization, a member of an organization, or any person having a sufficient interest in respect of an organization may apply to the Court for a declaration that - (a) ..e7 OY (b) an office or position in the organization or in a branch of the organization is vacant and there are no effective means under the rules of the organization or branch to fill the office or position, and the Court has jurisdiction to hear and determine the application and to make a declaration accordingly. (2) Where the Court makes a declaration under sub-section (1), the Court may, by order, approve a scheme for the taking of action by a collective body of the 10. organization or of a branch of the organization or by an officer or officers of the organization or of a branch of the organization ... for the filling of the office or position. (3) Before making an order under this section the Court shall satisfy itself that the order would not do substantial injustice to the organization or to any member of the organization. (4) Where any such order is made, the Court may give such ancillary or consequential directions as it thinks fit. (5) An order or direction of the Court under this section, and any action taken in accordance with such an order or direction, has effect notwithstanding anything in the rules of the organization or of a branch of the organization. (6)... (7) «ee " There are two difficulties, arising out of the wording of the section, in granting the relief sought by the Union and Mr Kidd. The form of declaration which the Court is empowered to make under sub.s (1) - and which is the foundation of a scheme under sub.s(2) - is that particular offices or positions are vacant "and there are no effective means under the rules of the organization to fill the office(s) or position(s)". It is not possible to make that declaration in this case. Vacancies do exist, for the nine offices or positions of delegates to the ALP State Council, but there are effective means under the rules of the organization to fill those vacancies. Recognising this, the applicants seek a declaration that there are no means of filling the vacancies before 11 August 1984. This is unfortunately now ll. true, but the section does not contemplate a declaration in those terms. The section is clearly designed to resolve a problem caused by a hiatus in the rules, not a problem caused by the fact that relevant office-bearers have neglected to take action to fill vacancies at the time most appropriate to the efficient operation of the organization. The extension of the section to cover such cases would represent a significant inroad upon the entitlement of members to have the organization governed in compliance with the rules. Secondly, sub.s(3) requires that the court be satisfied, prior to the making of any order under the section, that such order would not do substantial injustice to any member. I cannot be so satisfied in this case. There is no material before me to indicate what are the views of the members in relation to representation at the ALP conference. Counsel for the Union and Mr Kidd invited me to assume that the majority of the members would choose the same delegates as would the members of the State Council of the Union, whom they had elected. This supposition has not yet been put to the test. I cannot so assume. No inference can properly be drawn from the fact that the members, at a different time and for a different purpose, elected the members of State Council. The extent to which State Council's choice would coincide with that of the members is, for me at least, entirely a matter of conjecture. 12. It is true that, if the court rejects the application for orders requiring selection of delegates by the State Council, nobody will represent the Union at the meeting of 11 August 1984. It is, therefore, correct to say that nobody is deprived, by the making of the orders sought, of the opportunity of being a delegate at that meeting. It does not follow that no injustice is visited upon a member by the making of an order. There may be an ALP meeting between mid-September, by which date delegates could be elected by members, and 31 October, the date mentioned in para (d) of the proposed orders. The effect of the making of the orders sought would be to deprive members, other than those selected by the State Council, of the opportunity of acting as delegate during that period. Further, there is a fundamental potential injustice to which I referred at p 20 of my earlier judgement, in rejecting an argument that the Court should withhold relief on discretionary grounds: "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." 13. Mr Adams is obviously one such member. There may be others. It is itself an injustice to force upon such members 'representation' by others, not validly elected, who espouse and may advocate views they do not share. Finally, the grant of relief under s.171D of the Act is a discretionary matter. The policy underlying the Act is to allow to registered organizations a considerable degree of autonomy in relation to the content of their rules but to insist upon faithful compliance with those rules, so far as they extend. To use the overriding power of the Court to sanction an avoidable departure from those rules would conflict with the second part of that legislative policy. Although there is no question of relief being granted or withheld on punitive grounds, the fact is that the only reason why there is a problem about representation at the meeting of 11 August is that the Tasmanian State Council of the Union chose not to actin accordance with the decision of this Court as to the proper interpretation of the Union's Rules. It would be an odd result if the Court, in order to resolve a problem that State Council had deliberately created, were now to give to that body a prerogative to which it was not otherwise entitled. The members, upon whose behalf the State Council is supposed to be acting, would not only have had their right to vote denied but, by order of the Court, usurped. 14. The application for relief under s.171D must be rejected. This has the effect that the Union will not be able to be represented at the proposed meeting on 11 August. The meeting may proceed, without AMFSU representation. It may again be adjourned. Either situation will be unfortunate but it will be erroneous to see it, as did the 23 June meeting, as a denial by this Court of "the right of the AMFSU delegation to participate" in the meeting. It will be the direct and inevitable result of the decision of the State Council of the Union not to carry out, before now, its duty under the Rules to arrange an election by members. The AMFSU will be unrepresented not because the Court has denied the right of authorised representatives to participate but because steps have not been taken to elect any authorised representatives. I turn now to the relief sought by Mr Adams. A question immediately arises as to the extent of the powers of the Court in making directions for the carrying out of the rules of an organization. Section 141(1G) empowers the Court to: "give directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules". Rule 21 provides that State Councils "shall arrange for the election" of the Union's delegates. It does not prescribe the method of election save that, by implication, it is to be an 15. election open to all financial members. The orders sought by Mr Adams would deprive State Council of any discretion as to the desirable method of election and compel the holding of a secret postal ballot in accordance with a particular timetable. Counsel for Mr Adams contends that s.141 of the Act empowers the Court to go that far and he refers to the judgements in the High Court of Australia in The Queen v. Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 CLR 141. That case dealt with the old s.58E(2) of the Act but the wording of that sub-section was almost identical to that of the present s.141(1G) and, in The Queen v. Joske; ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 at pp 212-213, Mason and Murphy JJ treated Barrett as being relevant to the interpretation of s.141. In Barrett Latham CJ said at pp 156-157: "It 1s objected ... that the order does not merely direct the observance of a specific rule, but that it gives detailed directions for the doing of certain acts as, for example, the recognising of certain named persons as officers of the union. It is contended that the only power given by the section is a power to direct the performance or observance of a particular rule without specifying the manner in which it is to be performed. In my opinion, this objection cannot be sustained. There might be more to be said for it if the section provided merely that the Court might 'make an order for the performance or observance' of the rules. But the words of the section are 'make an order giving directions for the performance or observance' of the rules. In my opinion, 16. these words contemplate the giving of detailed directions for the doing of acts or observance of forebearances which will constitute performance or observance of the rules". At p 160 Starke J referred to the power as being "wide enough to authorise orders and directions relevant to the performance and observance of the rules". Dixon J at p 163 said: "The directions which the Court may give must have for their object the securing of performance or observance of the rules. But I do not think that the power is restricted to specifically commanding compliance with the exact obligation expressed in the rule or rules in question in a given case". At p 170 his Honour added that: "s.58E intends that the court shall go beyond the precise form of the rule and shall give directions calculated to ensure that they are carried out". Read literally, the passages I have quoted would appear to authorise the Court to make any detailed directions necessary to ensure compliance with the rules of an organization. However, they must be read in context. In Barrett, there was no question of the exercise of a discretion by the persons to whom the Courts' commands were addressed. The issue before the Court of Conciliation and Arbitration had been the validity of particular elections and of the dismissal of an official of the Union. Once 17. it was determined, as it was, that the elections were invalid and that the official had been validly dismissed it followed, without the interposition of any discretion, that the persons purportedly elected should not be recognised as holding office and that the official ought not to be recognised as holding his previous position and that all relevant persons should act upon that basis. The orders under consideration were injunctive orders to that effect, requiring the recognition and non-recognition of particular people in particular positions. In the present case the persons to whom the proposed commands are to be addressed are persons who have a discretion as to the manner of the performance of their duty. This situation was not discussed in Barrett. It is far from clear that the members of the High Court would have used the same language in such a case. The relevant distinction is similar to that frequently encountered in relation to orders for mandamus. Ina case where a person is under a statutory duty to take a particular step the appropriate order for mandamus will specify that he take that particular step. He will have no discretion because he has no discretion under the statute. In a case where the person has failed to exercise a discretion the appropriate order will require him to exercise the discretion "according to law" but it will not dictate the manner of exercise. The application of that distinction in the present case would limit the court to the making of an order requiring the performance of 18. the duty to arrange an election by members. There is, in Rule 21, an implication that the duty thereby cast upon the State Council shall be exercised within a reasonable time and it is consistent with Barrett that the Court may determine what, in ail of the circumstances, constitutes a reasonable time and make directions accordingly. It is not consistent with the distinction illustrated by the mandamus analogy that the court should make directions which pre-determine the manner of exercise of the discretion given by the Rules to the State Council. Even if the Court's powers under s.141(1G) do extend to the making of the directions sought by Mr Adams, I am of the opinion that such directions should not be made. Ags I have said, the policy of the Act is to allow to registered organizations a considerable degree of autonomy in relation to the content of their rules. Subject only to the specific constraints of the Act, eg 8.133, organizations are entitled to make their own provisions as to their method of government. This organization has chosen to leave to the relevant State Council the decision as to the appropriate method of electing ALP delegates. That provision is not in conflict with anything contained in the Act. It should be respected by the court. When I made orders on 21 June 1984 I thought it unnecessary to do more than to order the respondents, in matter I.20 of 1984, to perform and observe the Rules of the Union by arranging for an election by financial members. I assumed that " 19. this would be done within a reasonable time which, having regard to the circumstances, meant fairly promptly. However, I reserved liberty to apply in case any difficulty arose. Forty days have since elapsed and State Council is no nearer to complying with its obligation under Rule 21 than it was when the order was made. A reasonable time has expired. It is appropriate that I now give further directions specifying that action be taken by particular dates. I propose to make orders that State Council meet within seven days of the date of this order and, at that meeting, make arrangements for the election of delegates to the ALP State Council; those arrangements being such as to provide for the declaration of the result of the election not later than Friday 21 September ie six weeks and three days after the last date for the meeting of Council. I should add that counsel for the respondents, in matter I.20 of 1984, submitted that no further directions should be given because of the decision of the National Conference relating to the amendment of the Rules. I reject that submission. Whether, and if so when, the Rules will be amended is entirely a matter of speculation. I agree that there is a possibility that no ALP State Council meeting will take place between the date upon which delegates, elected under the current Rules, take office and the date upon which they are replaced by new delegates selected by State Council under the amended Rules. The degree of likelihood of that situation is impossible to predict. 20. In recent times Tasmanian ALP State Council meetings have been fairly frequent and have been called with notice too short to permit State Council then to set about electing delegates in accordance with the existing Rule 21. I regard the possibility of a futile election - in the sense that the elected delegates never get to attend an ALP State Council meeting - as much less significant than the continuation of a situation in which the positions are left unfilled, with consequences not only within the Union but also, on the view taken on 22 June, for the proper working of the ALP State Council itseif. I certify that this and the wunstee aa) preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Dated: 3! Jory, 14R4 Associate Kawai Noten,