& "a S , " and tt \ - as CATCHWORDS YOR hl "ML ee Lane a Industrial law - s.140(1)(c) of the Conciliation and Arbitcation Act 12904 - whether union vules restricting eligibility for nomination for position of Federal Secretary contravene 5.140(1)(c) - eligibility dependant upon decision of branch meeting as to reasonableness of an excuse for non attendance thezeat. Coneiliation and Arbitration Act 1904 s,.140(1)(c) JOSEPH HENRY MOFFITT v. THE VEHICLE BUILDERS EMPLOYERS' NT No. 6 of 1985 Smithers, Keely & Wilcos JJ. 15 August 1985 Sydney. . re eee . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT RECISTRY NO. 6 OF 1985 INDUSTRIAL DIVISTON On Appeal from a Single Judge of the Federal Court of Australia Between: JOSEPH HENRY MOFPITT (Appellant) And: THE VEHTCLE BUILDERS EMPLOYEES ' FEDERATION OF AUSTRALIA (Respondent) Judges Making Order: Smithers, Keely and Wilcox du. Date of Order: 15 August 1985 Where Made: Sydney. ORDER 1. The Court orders that the appeal be allowed. 2. (a) The Court orders and declares that in so far as Ssub-r¢.d(1ii) of r.6 of the rules of the respondent provides that to be eligible for romination for election as Federal Secretary of the organization a menber mast at the date of nomination have teken an active interest in the work of the Branch, sub-Branch o: office to which he is attached or belongs by attending at least 50% of Ehe Branch or (b) 2. sub-Branch mectings for two years immediately prior Lo the date of the calling of nominations, that sub-rule contravenes the provisions of $,140(1)(c) of the Act; and that suh-r.(d)(iv) contravenes the provisions of $.140(1)(c) of the Act. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 6 OF 1985 INDUSTRIAL DIVISTON On Appeal from a Single Judge of the Federal Couct of Australia Between: JOSEPH HENRY MOFF ITI (Appellant) And: THE VEHICLE BUILDERS EMPLOYEES' FEDERATION OF AUSTRALIA (Resyondent ) Coram: Smithers, Keely and Wilcox Ju. Date: 15 August 1985 REASONS FOR JUDGMENT Smithers, Keely and Wilcox dJd-.: This is an appeal from the discharge of a rule nisi that the respondent show cause why sub-rule (d)(iii) of r.6 of the rules of the respondent in so far as it provides that to de eligible for nomination for election as Federal Secretary of the organization a member must at the date of nomination have taken an active interest an the work of the Branch, sub-branch or office to which he 1s attached or belongs by attending at least 50% of the Branch or sub-branch meetings for at least two years immeciately prior to the date of the calling of nominations docs not contravene 6.140(1)(c) of the Conciliation & Arbitration Act 1904 (the Act) or alternatively why that sub-rule insofar as it contains the words "by attending at least 50% of the branch or sub-branch meetings for at least two years immediately prior to the date of calling of application (sic)" does not contravene s.140(1){c) of the Act as amended. The rule in question prescribes conditions of elibility to nominate For election to the position of Federal Secretary of the respondent. Sub-r.(d) of v».6 is in the following terms:- "(d) To be eligible for nomination for election as Federal Secretary a person must at the date of his nomination:- (i) have been a member of the Federation continuously for at least three years; (it) have been a fanancial membder of the Federation continuously for at least two years immediately prioc to his nomination; {1211) have taken an active interest in the work Ort the branch, Sub-Branch or office to which he is attached or belongs by attending at least fifty percent oft the Branch or Sub-Branch mestings for at least two years immediately prior to the date of calling of application. (av) This condition shall not apply where:- (a) The applicant was working shift work peoviding he has attended 50 percent of the meetings of the Branch or Sub-Branch which frail on the week or weeks 1n which he works day snift; or (b) The applicant was absent through attending to official union business (c) An apolosy with reasonable excuse accepted by the meeting to be taken as attendance at the meeting." Provision by rule of restcictions on the eligibility of members to nominate for office 1n organizations under the Act based on factors such as the duration of membership and financial status are not uncommon. They are based on considerations going to the stability of the organization, and the desirability of persons in office being acquainted with the industry, the rules of the organization and the practical administration of a registered organization. In this connection there is a difference between categories of officers. The office of federal secretary is an extremely important office in an organization of employces. See Geveridge v. Shop Distributive and Allied Emoloyees' Association (1977) 31 FLR 385 and Allen v. Townsend (1977) 31 FLR 431, at 457. Restrictions on the eligibility of members to nominate for election to the Office of Federal Secretary more stringent than those for other offices may be thought appropriate by the membership and be imposed by rule. But such restrictions must not be such as to lapose veon the membecshio og members conditions, obligations or restrictions which having ceygard to the objects of the Act and the purposes of the registration of organizations under the Acc are oppressive, unreasonable or unjust within the meaning of s,140(1)(c). In Municipal Officers' Association of Australia 4. v. Lancaster (1981) 54 FLR 129 at 165 it was said by Neane J.i- "There is nothing in the context of s.140(1)(c) which would justify giving an expansive construction of the cequirement that the conditions, obligations or restrictions imposed by the rules of an organization upon applicants for membership or members not be 'oppressive, unreasonable or unjust'. Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition 1s liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful (see, for example, Scattish Co-operative Wholesale Society v. Meyer £19597 A.C. 324, at p.342; Re Jeemyn Street Turkish Baths Ltd. £19713 1 WLR 1042; Allen Vv. Townsend (1977) 31 FLR 431). To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play (see, for example, Re Kempthorne Prosser & Co.'s New Zealand Drug Co. Ltd. £1964] NZLR 49)," Tt as said for the appellont that sub-rr.6(d) (111) and (iv)(c) are burdenseme and inappropriate and contrary to justice and to ordinary standards of fair play. A requirement that a candidate for election to the office of Federal Secretary should have taken an active interest in the work of his branch, sub-branch or office to which he is attached covld not be regarded as within any of those categories. But this rule while paying lip service to sucha stan@ard, does not adopt it. It provides a c.iterion by reference to thich, and by which alone the specified interest of a member may he manifested. Thus che member wast have attended Fifty pet centum of the branch or Sub-Branch meetings for the two yeacs riamediately prror to the calling for nominations. As @ 5, measucc of oa momber's active intercst in the affairs of the organization this requirement may well be thought to be inherently artificial and inappropriate and there is little doubt that the vsule standing by itself would be burdensome, inappropriate and unjust in its application to a considerable body of the membership at least in New South Wale and Queensland. Some 1000 NSW members are cesident in and about Albury. About 300 members are resident in country towns and 169 of these reside in Gundagai, Tumut, Dubbo or Taree. Each of these localities 1s over 250 kilometres from Sydney. In Queensland the membership is found resident at localities even more distant From Brisbane. It was recognized by the learned trial judge that an apology by a member resident at Albury for non-attendance at a Branch meeting in Sydney and based on the difficulty arising from distance would disclose an excuse inherently reasonable. Relevant considerations are the distance itseif, the necessity fox a member to remain in Sydney for the night of the meeting, the accompanying expense and dislocation of the member's employment. And with this there is and can be no dissent. Accordingly, but for the presence of sub-r.6(d)(iv), sub-rule 6(d)(i22) would inevitably contravene s.140(1)(c) of the Act. However, sub-r.6(d)(1v) so qualifies sub-r.6(d)(1ii) with respect to a member who fails to attend fifty per cent of branch meetings during the relevant two year period that, if the meeting or meetings actually attended by him during thak x period, together with meetings tis attendance at which was 6. excused under sub-r.6(d)(iv)(a), (b) or (c), would constitute fifty per cent attendance of the relevant branch meetings, then that member satisfies the requirements of sub-r.6(b) (iil) and is entitled to nominate. If sub-rr.(6)(d) (iii) and 6(d)(av) read together impose restrictions on nomination for the office which are not burdensome, inappropriate, contrary to justice or to ordinary standards of fair play then there is no contravention of the peovisions of s.140(1)(c) of the Act. Mr. Kenzie For the appellant contended that upon the proper construction of sub-r.6(d)(1v)(c) L&E operates, in the case of any particulac relevant meeting, to modify the requirements of sub-r.6(d)(1i1) only if the apology submitted discloses an excuse which, objectively looked at is reasonable ain the circumstances and which the branch accents as such. He in - submitted that the member could gain no benefit From the sub-rule if his excuse was not objectively reasonable or if the Branch meeting merely ceceived the apology and did not positively accept it. He said that the sub-rule imposes no duty on the Branch even to consider whether it would accept or nok accept the apology and that it imposes no duty on the Branch to advise the member whether the apology has heen accepted or not. He pointed out that there was no provision for the member to be heard on the question of acceptance and that the nature of the process of considering whether to accept o1 nat to accept the apology was not such as to atteact principles of natural justice. He submitted also that the 7. pronch meeting acting perfectly bona fide wight not he persuaded to treat 2a particular excuse as reasonable although a reasonable man might be expected to hold that 1t was. He pointed out that if the meeting weongfully failed to accept an apology that failure could be critical to the member's eligibility to nominate and submitted that there would be no remedy. A returning officer having before him a nomination of a member whose apology had not been accepted, whether rightly or wrongly, could not treat the member as a person whose apology had been accepted. Also, once the meeting has been closed and the members who attended have departed the meeting would be at an end so that an apology, if not already accepted, can never be accepted at that meeting. The sub-rule has regard only to an acceptance "by the meeting". From a practical point of view the prospect of taking action under the Ac ainst Ehe ct so veg members who were at the meeting, who may comprise a great number of members, could not be regarded as real. The same may be said as to the prospect of inducing a returning officer, even in relation to an election conducted under ss.165 or 170 of the Act to act "notwithstanding anything contained ain the rules" by accepting the nomination of a cundidate who, because of non-accestance of his apolocy or apologies, had not fulfilled the cequirecments or sub-r.6(d)(ivi(c). Te is not certain that sub-r.6(d)(iv)(c) imposes on the branch meeting to which an apology for non-cattendance 15 8. tendered a duty to decide whethcr to acccpt the apology. A meeting which merely received the apology might not be in breach of any duty. For present purposes one may assume that there is such a duty. But even so the practical difficulties of restoring the position of a member who is disadvantaged by a Failure to perfovm that duty render its existence of no impor tance on the question whether the sub-rule is inappropriate or unjust. Incidentally, the notion that a branch meeting, as such, which may comprise a great number of members , is a suitable tribunal to determine the reasonableness of a member's excuse for non attendance, is itself subject to serious question. It is apparent therefore that in the operation of sub-r.6(d)(iv)(c) the eligibility of a member may depend upon the decision of a branch meeting in relation to an apology for non-attendance tendered to 1t. If attendance or an accepted apology for non-attendance at a pacticular meeting or particular meetings was necessary to make up the quota of fifty per cent attendance or excused non-attendance at branch meetings in the relevant period of two years, the failure to accept apologies will result in the member failing to qualify to nominate for election. As indicated above an apology on a ground put forwacd as a reasonable excuse for non-attendance may not be accepted by the meeting, acting quite bona fide according to its view of the reasonableness of the oxcuse. The sub-rule operates not only with scespect to apologies based@ on diffacullies of ike) wenbers arising ovt of distance from Sydney, but to apologies based on all manner of grounds of excuse. Ilinesses of varying severity, family circumstances of one kind or another , obligations to other organizations, all come to mind as possible grounds. And the eligibility of a member not attending a meeting critical to his compliance with sub-ryrv.6(d)(i1i) and 6(d)(1av)(c) w21l depend, on the decision of the meeting as to whether the excuse put forward was acceptable. Provided that decision was bona fide the member would have no avenue by which to seek a reversal of that decision, and this notwithstanding that the excuse is one which a court might ox even would consider reasonable. The condition in sub-r.6(d)(iv)(c) is that the excuse is accepted by the meeting, not that it ought to have been so accepted. Apart from other aspects of the justice or appropriateness of the sub-rule in question the insection inta a scheme such as that embodied in r.6(d) of a decision of a meeting as to the reasonableness GF an exeuse foe non-attendance at a meeting, as aocondition of eligibility to stand for office raises critical questions as to the justice and appropriateness of the rule. Sub-rule 6(d)(1i2) creates difficulties for members resident at Long distances from Sydney and perhaps for other members. No doubt sub-r.6(d) (iv) was promulgated to alleviate the position of members who were faced with difficulties in attending branch meetings. But it would seem, that fora condition of eligibility to nominate for office to be just and appropriate it must be one which a good member can satisfy hy 10. his own efforts. Sub -rule 6(d)(iv)(c) specifies action which the member may take with a view to satisfying the condition expressed therein, but it stipulates that the effectiveness of such action 1s to depend on the opinion of the moeting as to whether or not an apology should be accepted. While offering the procedure of apology the rule makes clear that whether the apology will be effective to relieve the member from the requirement of sub-r.6(d){(iii) will be subject to the decision of the relevant meeting as to the reasonableness of the stated grounds of excuse for non-attendance. In a real sense the sub-rule creates a situation in which not only is the member's eligibility subject to the artificiality created by sub-r.6(d)(1ii), but, the escape route provided by sub-r.6(d)(iv)(c) offers no certainty to the member. Tt leaves him subject to the judgment of the meeting on the stated grounds of excuse for non-attendance thereat. The member who uses the proffered escape route cannot know whethes or not his action in doing so will contribute to qualify him to nominate for election to Federal Secretary. It might be said that if a member relies upon apologising for non-attendance at a meeting rather than attending it, that 31s his dccision and he thereby submits to the judgment of the meeting. But 1t is to be observed that the so called escape route from the rigidity of sub-~.6(d)(i21) relates to a rule which without an escape route, would offend the provisions of 5.140(1)(c) of the Act. To be just and appropriate the escape route must be one by which the member can, by his own conduct, offect the escape. jl. It is incompatible with the objectives of the Act and the purposes of registration including the democratic control of the union that eligibility to stand for office should depend upon the view of a branch meetang as to the reasonableness of the excuse of a member for non-attendance at a meeting or series of meetings. In the light of the foregoing it appears that sub-r.6(d)(iii) even as modified by sub-r.6(da)(iv) contravenes §s.140(1)(c). Tt creates a situation in which, subject to relief to shift workers and persons actively engaged on Union affairs when branch meetings are being held, relief from the provisions of sub-r.6(d)(iii) is available only through sub-r.6(d)(iv)(c). As that relief 1s conditional on a favourable decision of a meeting as to the reasonableness of an excuse for non-attendance at a meeting or relevant meeting at does not remove from sub~c.6(d) (iii) its inherent unvalidity. The consequence is therefore that sub-rc.6(d) (i211) and sub-r.6(d@)(iv) 1mpose conditions and restrictions upon members which having regard to the objects of the Act and the purposes of the registration of organizations under the Act are oporessive and unjust. The Court should (1) allow the appeal, (ii) Geclare that sub-r.(d)(iii) of r.6 of the cules of the respondent in so far as 1t provides that to be eligible For nominaticn for election as (iii) 12. Pederal Secrctary of the organization a member must at the date of nomination have takzen an active interest in the work of the Branch, sub-branch or office to which he is attached or belongs by attending at least 50% of the Branch or sub-branch meetings for at least two yeacs immediately prior to the date of the calling of nominations contravenes the provisions of s.140(1)(c) of the Act; as a consequence of order (i1) above the couct should declare that sub-r. (d)(iv) contravenes the provisions of s. 140(1)(c) of the Act. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons For Judgment of the Court. 7; 23 . JOBS? | Associate Date: 15 August 1985