Ne OF CATCHWORDS a aN ion aw tg? Yo wer. INDUSTRIAL LAW - election of national trustees - invalid rule - application for directions - whether the court should adiourn application to permit amendment of rules bv the Union. INDUSTRIAL LAW - election of national trustees - trreqularityv in election - application tor orders modifving operation of cules. Conciliation and Arbitration Act 1904 ss. 140, 145 PATRICK JOSEPH HENNESSY V AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS UNION - 1.26 OF 1984 MARSH V AMALGAMATED METALS FOUNDRY & SHIPWRICHTS UNION - 1.27 OF 1984 COPAM: WILCOX J DATE: 27 JULY 1984 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON No. I.26 of 1984 BETWEEN: PATRICK JOSEPH HENNESSY Applicant AND: AMALGAMATED METALS FOUNDPY & SHIPWRIGHTS UNION Respondent No. 1.27 of 1984 BETWEEN : MARSH Awplicant AND: AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS UNION Respondent QFDEPR CORAM: WILCOX J DATE: 27 JULY 1984 PLACE: SYDNEY 1. Application is adiourned until 31 Auqust 1984 at 9.30 am. 2. Order that no further steps be taken in the conduct of the clection of four national trustees of the Union pending further order. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION CORAM: DATE: PLACE: BETWEEN: —-ewerr No. 1.26 of 1984 PATRICK JOSEPH HENNESSY > = ley BETWEEN : AND: Applicant \MALGAMATED METALS FOUNDRY & SHTPWRICHTS UNTON Pespondent No. 1.27 of 1984 Applicant AMALGAMATED METALS FOUNDRY & SHTPWRIGHTS TINTON Respondent REASONS FOR JUDGEMENT WILCOX J 27 TULY 1984 SYDNEY There are two matters being heard toqether. One of them is an application of Patrick Joseph Hennessy aqainst the Amalgamated Metals Foundry and Shipwrights Union. No. 27 of 1984, in ~shich Me Hennessey -eeks celiet sinder vectisn Lee of fhe Veanciliation and Arbitrakicn &cft. He complains rhat cvub-:ula rds SeTANLIAELAN 12 ef fhe enules of Fhakt reaictered tor ot cule ld invalid. in that Ene tub-cule erovider the election of the by member? of branches tn national trustees ot the oraaniv-ation metropalttan area. the ordnev az: I Although the matter has nar oeen tully develoned. section Lis af the Act ! ao Fhat arcatment ito 1s mur suank Fe 4 understind che Sten attics bearers be OLetred arther ev-stem and fhat. reaqnire 7 that seeking svctom ve a wok be dian: olisroral ct rhage rtems in fae fer. in ot oral membeorshin -t qipecr rhe detianie pins havin reqard ta Tan2tLetina ar Fhe Tons Leuenc LE Mandatrer. arther cvant a z= qdayttinet Cetm che Jvdiney memt teonic Cf Li rmearfant toa note that PAL: i: the cniv attack chich has been made upen the valutse sy of the sub-rule. The wvub-rule alto srevtdes that nominees for tne eotirien at national reustess must ba mempercs of a ovine branch, ina "nat nominators rf candidates are also remiired Ff" be memper3s "tT Fhe Jrdines beanch. ~n tor heariny, Me Pran ull coe the He mafrroe 7. as Chen the inidizated rnat fhe "po Phe matter. nght an adieuenment Be orylt Minin 29 vase ro alloy the Wnisn Fo ravi: it Fhe atimornment namel Kurpoze me that the other mattors, and he has pointed aur ra shoulda be eandidates La, the question whether oe nok Limif-d fos members of Svdnev branches and whether or not nominators should be so limited, are matters which are at least intended to he considered. His application is for an adiournment of about one month. The other matter before the court is an application filed by Mr Ralph Benson Marsh. who is also a member of the union. this being an application under section 159 of the Act seeking an inquiry into alleged irreqularities in relation to the pending clection of national trustees. As I understand the current position, nominations tor election to the four positions ot national trustees have closed, and the Australian Electoral Officer. pursuant to a request bv the Industrial Peqistrar, 15 1n the course of preparing ta dispatch ballot papers to persons who comply with the requirements of rule 14 as 1t currently stands. I understand that the Australian Electoral Officer will he dispatching ballot papers to the total membership of the Union in relation to other positions within the Union in respect of which elections are due. Mr Marsh contends that the failure of rule 14 to comply with the Act necessarilv results in there being an irreaularityv within the meaning of section 165, and that the court has jurisdiction to make orders inter alia modifvina the cperation of the rule so as to cause an election to take place in accordance with rules modified to comply with the Act. Mr McCarthy, on behalf of Mr Marsh, has reterred me to the orders made bv Mr Justice Evatt in Re Stapleton (1983) 50 ALR 293. In particular he refers to the passage in the ludaement at page 310 and the orders at page 320. It would appear to me that the course sought by Mr Marsh qoes no further than the course adopted by Mr Justice Evatt. and that Re Stapleton does provide support for the view that there is turisdiction to do what is souadht. In the end it seems to me a matter of discretion as to whether one should accede to Mr Rvan's application or retect 1t and, subiect to anv further arqument on the question of validity. proceed in the manner contended for on behalf of Mr Hennessv and Mr Marsh. The relevant considerations are, tn mv view, nicelv balanced. On the one hand 1t can be iraqued - and indeed this has been put with some force by Mr McCarthy - that it 1s highlv convenient to take advantage of the fact that there is to be an election for other national office bearers within the immediate future, so that with little. if anv, additional expense ballot papers could be sent to the members throudhout Australia for election by them of four national trustees out of those alreadv nominated for election in accordance with rule 14 as it stands. This would have the result that within a short time there would be four trustees elected bv the total membership. a result apparentliv intended by the Act. Mr Rvan. on the other hand. arques that it is desirable for the Union to be qiven an opportunity to revise the whole of rule 14 before there is anv election pursuant to amendments imposed upon the union by the Court. He points to a number of matters in rule 14 which would jiustifv some reconsideration, and I must sav that I think there are a number of aspects of rule 14 which would bear consideration and. no doubt. some amendment. So far as the evidence indicates. the question of the validity of rule 14 has arisen onlv very recentlv. The order nisi was aranted by Mr Justice Grav in Svdnev on 6 Julv last. and so far as the evidence indicates this was the first time in which there had been anv suaqestion to the lInion or to 1ts management that rule 14 was invalid, It happened that there was a national conference of the Jnion between 2 and 6 Julv. It appears that no resolution in relation to rule 14 was sought to be moved at that conference. At least there is no evidence of that having occurred. from whatever source. There is a procedure under the rules for amendment by postal ballot, and it is this procedure which Mr Pyan envisages will be followed. If I had evidence to indicate that the Unic . having been apprised of the invalidity of rule 14. had shut .ts eves to the problem, or for anv reason had simplv done nothing about the matter, [£ think that the course proposed by Mr McCarthy would be the appropriate course to take. In such event 1t would be proper for the court to step in and exercise its power go as to ensure an earlv election in accortance with valid rules. However, that 13 not the position. so far as cvidence would indicate, and I think there is a basic policv under the Conciliation and Arbitration Act that the content of union rules will, subject onlv to specific contraints of the Act, be for the determination of the union itself. The Union has but recentlv been apprised of the problem, and now assures me through senior counsel that it proposes to take the matter in hand with a view to revising the rule so as to make 1t conform with the Act and, incidentallv, fo overcome some additional problems. Tt seems to me that 1t would conflict with the philosophy that unions, subtiect only to specific requirements of the Act, are entitled to formulate their own rules for me to take a course which insists upon an immediate election in accordance with limited amendments made bv the Court. There is nothing to indicate that there would be anv disadvantade to the union by the existing trustees continuing in office for 2a cer1od beyond the immediate term which, I am told. expires at the end of October. The question of authorization of continuance in office does not arise todav »out I envisage some 7. short extention mav be necessarv at a later date. However. there is nothing to suqqgest that the trustees are other than competent and diligent. carrvind out their duties in a proper wav. I think in all of those circumstances I would not be iustified in exercising the overriding powers of the Court so as to force specific amendments upon the Union at this staqe. I think on balance there ought to be a reasonabe opportunity to revise the rules. It 1s unfortunate that that almost inevitably will mean that the election cannot take place simultaneously with that of other national office bearers, and this no doubt will involve some additional expenditure. No doubt that is a matter which has been considered by the people who make decisions on behalf of the Union and who have instructcd the counsel appearing for the Union in this matter. I do not think that I should seek ta overrule their tudqement on matters such as that. The course that IT propose to take 1s to accede to the application by Mr Rvan and to adjourn the further hearing of both matters for a period of about one month, to 31 Auaust. I indicate that if on that dav anv further adiournment is souaht then evidence setting out what has occurred between todav and then should be filed and served not later than Wednesdav, 29 Auaqust. If the evidence does not satisfactorilv 8. indicate that action is being taken by the union to revise the rule then I will entertain the application by Mr McCarthy on behalf of his clients for orders to be made. I make an interim order pursuant to section 163(1)(a) of the Act that no further steps be taken in the conduct of the election of four national trustees of the Union pending further order. The matter will stand over to Fridav, 31 Auqust. I will put 1¢ in at 9.30 if 1t is convenient to do that - both matters, that 1s to sav. ™, I certifv that this and the s«—"<«—' 7; preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Dated: 27 7/4 Associate manne OMAR,