Bom ag 632 CATCHWORDS Industrial law - Conciliation and Arbitration Act - whether rule preventing members over 65 years standing for election "oppressive, umreasonable or unjust" - whether such rule contrary to objects of the Act. Conciliation and Arbitration Act ss. 2(e), 2(f), 140(1) Conciliation and Arbitration Requlations Reg 115(1) in the Matter of the Conciliation and Arbitration Act 1904 as amended JAMES DOYLE v. THE AUSTRALIAN WORKERS' UNION Number S.A. 11 of 1985 Keely d. - REC! Adelaide owe one wove bud PRDETAL . US 4 wie i rime & 18 December 1985 futica'e IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY) No. 11 of 1985 ) INDUSTRIAL DIVISION ) In the matter of the Conciliation and Arbitration Act 1904 as amended BETWEEN: JAMES DOYLE Applicant AND: THE AUSTRALIAN WORKERS' UNION Respondent 18 DECEMBER, 1985 KEELY J. REASONS FOR JUDGMENT On 11 December 1985, an order was made discharging the rule to show cause in this matter but, because of the urgency of the matter, it was made without waiting for the preparation of reasons for judgment. These are the reasons for that order and accordingly for the court's refusal to make an order that Rule 5l(c) of the certified rules (the rules) of the Australian Workers' Union (the union) contravenes s.140(1) of the Conciliation and Arbitration Act 1904, as amended (the Act). The union 1s an organization of employees registered under the Act. Sub-rule 51(c) of the rules provides as follows:- "51 - Qualification for Office No person shall be eligible for nomination for election as an Officer - (c) If he has attained the age of 65 years prior to the calling of such nomination." Rule 4 of the rules includes the following provision:- "4 —- General Definition Clause In the interpretation of these Rules the following definitions shall be taken as a guide: eaee (e) "Officer" shall include the President, Vice-Presidents, General Secretary, Branch President, Branch Vice-Presidents, Branch Secretary, District Secretaries, President and Secretary of the Mining Division of the West Australian Branch, Branch Executive Councillors, Branch Executive Committeemen and elected Organisers, Delegates to Convention and Delegates to Delegate Meeting Queensland Branch," The application has been brought by Mr James Doyle, who is 67 years of age and has been a financial member of the union since about 1934. He deposed that he currently holds two honorary positions, namely, "(South Australian) Branch Vice-President" and also "Branch Vice-President on Executive Council (South Australian Branch)", having been elected to those two positions in 1981 and 1982 respectively. The applicant's affidavit in support of the rule to show cause included the following paragraphs:- "26. On Wednesday 9th October 1985 TI lodged nominations for the positions of Vice-President on Executive Council, Branch Vice-President (South Australian Branch), Delegate to Annual Convention 1986 (South Australian Branch) and Branch Organizer (South Australian Branch). The first three positions are honorary. The Organizer's position is a full-time paid position." (Three of those positions were for a four year term). "27. .«.. my said nominations have been rejected in accordance with Rule 5l(c) of the Rules aforesaid and on the basis that I had attained the age of 65 years prior to the calling of nominations." In the same affidavit, in dealing with the history of Rule 5l(c), he stated that: "18. The Annual Convention in 1974 was held in February of that year and a motion that all officials in the Union be required to retire at the age of 65 was put and defeated." He gave evidence that, at the 1978 Annual Convention, "a motion was again put seeking to amend Rule 51 of the rules re qualification for office so as to preclude persons aged 65 or Older from nominating for office in the Union." His recollection was that that motion to amend Rule Sl(c) was passed by a slim majority but during his oral evidence he said that he could not doubt the convention report, which recorded that an amendment to a motion relating to Rule 5l1(c) was carried by 21 votes to 11 votes and that that amendment then became the motion and, when put as the motion, was carried. My Allan Stanley Begg, who has been the President of the union since January 1982, and the Branch Secretary of the South Australian Branch since 1975, deposed in his affidavit, sworn 2 December 1985, that:- "5 ~». Over the past five (5) years the membership of the CSouth Australiand Branch has been within a range of 11,000 to 12,000 members. 6. »». The break-up of membership according to various industries is as follows: Civil construction and maintenance by various Local Government Authorities - approximately 4,000 members. State Government civil construction and Maintenance - approximately 1,200 members. Civil construction and maintenance by private contractors - this varies depending on the size and nature of the various projects undertaken but at present there are approximately 1,200 members. Pastoral industry (covering shearers and shed-hands) - approximately 1,000 members. Hydrocarbons or oil production and processing - approximately 600 members. Oil and mineral surface prospecting and exploration - 300 members. Employees of the Australian National Railways Commission - approximately 1,400 members. Concrete batching, manufacture of concrete products, manufacture of cement, quarrying — approximately 500 members." Dealing with the retirement age of members, Mr Begg deposed that:- "From the knowledge I have acquired, I say and verily believe the following to be the retirement age of employees in the major industries covered by the South Australian Branch of the Organisation: (a) Construction and maintenance employees {employed by various Local Government Authorities, State Government Departments and private contractors) ~- retirement at 60 or 65. (b) Hydrocarbons or 011 production and processing ~- retirement at 60 or 65. {c) O11 and mineral surface prospecting and exploration - retirement at 60 or 65. (d) Employees of the Australian National Railways Commission - retirement at 60 or 65. (e) Concrete batching and manufacture of concrete products, etc., - retirement at 60 or 65." The grounds appearing in the rule to show cause, as amended at the hearing without objection, are that Rule 5l(c)i- "(a) Is oppressive unreasonable or unjust. (b) Is contrary to a provision of the Act namely the objects of the Act contained in Section 2(e) and (f), viz, to encourage the organization of representative bodies of employers and employees and their registration under the Act and to encourage the democratic control of organizations and the full participation by members of organizations in the affairs of organizations. (c) Imposes upon members of the Organization conditions and restrictions which, having regard to two of the objects of the Act contained in Section 2(e) and (f) of the Act and the purposes of the registration of Organizations umder the Act generally are oppressive unreasonable or unjust. (d) Rule Sl(c) is, in the circumstances, contrary to Section 140(1) and is invalid void and of no effect." It is convenient to deal first with paragraph (hb). I have some doubt as to whether the "provision" relied upon by the applicant (namely, the two objects in s.2(e) and (f)) is "a provision of this Act" within the meaning of those words in s.140(1)(a). Section 140(1)(c) requires the court to have "regard to the objects of this Act ..." and it seems to me that s.140(1) draws a distinction between "a provision of this Act" (in s.140(1)(a)) and "the objects of this Act" (in s.140(1)(c)). However, it is unnecessary to decide that question. In my opinion there is no substance in this ground as sub-rule 51(c) is plainly not "contrary to" the two objects in Section 2(e) and (f). Considerable reliance was placed by the applicant upon certain "key words", namely, "representative bodies", "democratic control" and "full participation by members... in the affairs of the Organization". I reject the submission that sub-rule 51(¢c) "must fall as being contrary to the objects of the Act". In my opinion the sub-rule is quite consistent with those objects of the Act, even if they are read as being absolute requirements. (cf Sheppard J. in Cook v Crawford (1982) 43 ALR 83 at 147) referring to the fact that each of those objects commences with the words "to encourage"). The applicant's primary submission, based upon grounds (a) and ({c), was that sub-rule 51(c) contravenes 7. s.140(1)(c). In the interests of brevity, that ground will be compendiously referred to as the s.140(1)(c) ground. It is quite clear that the court is not empowered by s.140 to consider whether the rule under consideration is a desirable one, or is in the best interests of the members. An application having been made under 5.140(2), the court's duty is to consider whether Rule 51l(c) imposes on members conditions or restrictions which, having regard to the two objects of the Act and to the purposes of the registration of organizations under the Act, are oppressive, unreasonable or unjust. That statement of the question is based directly upon the material words of s.140(1)(c). In Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 35 FLR 24 Evatt and Northrop Jd said (at 41): ",.. Subject to the provisions of the Act, an organization is free to determine its own internal structures; it is free to determine its own policies; it is free to pursue objects which it considers to be desirable; and it is free to decide what it considers to be in the best interests of its members or potential members." The reader of that statement should be careful not to overlook the introductory words, "Subject to the provisions of the Act, ...". If he glosses over those words he may believe that the freedom of the organization is greater than 8. the law permits. The danger that the reader might misunderstand that statement may be the greater by reason of the additional emphasis given to it by their Honours in a passage in Municipal Officers' Association of Australia v Lancaster and another (1981) 37 ALR 559 at 577. That passage was as follows:- "It is important to stress that, subject to the provisions of the Act, an organization is free to determine its own internal structures." It is also important to stress that, although the organization 1s, within the limits imposed by the Act which are referred to by their Honours, "free to determine its own structures", it is not free to do so ina way which imposes upon members conditions which, having regard to the matters set out in 5s.140(1)(c), "are oppressive unreasonable or unjust". Those are the words of s.140(1)(c) and any attempt to paraphrase them is fraught with the danger to which Kitto J. referred when he said, "But fallacy lurks in paraphrase" - see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 633. Because of the matters forbidden by s5.140(1), it is important that its words should be kept in the forefront of the minds of those who draft rules and amendments to rules. A failure to keep in mind the words of that sub-section may well involve the organization in expensive litigation as to the validity of its rules or as to whether an irregularity has occurred in connexion with an election in the organization. Applying the words of s.140(1)(c) to rule 51(c), I am quite unable to uphold the attack made upon it. The sub-rule does, of course, place one restriction upon the yights of members who have "attained the age of 65 years prior to the calling of" nominations. It prohibits a member in that category from standing for election as an "officer". As an inevitable consequence the sub-rule restricts the rights of the whole membership - by preventing them from voting for members who, having attained the age of 65 years, are not eligible for nomination. However, the difficulty facing the applicant is to establish that such a_ sub-rule offends s.140(1)(c) and in my opinion he has failed to do so on the material he has put before the court. Turning to the respondent's material, it falls into two groups. First, material which tended to suggest that the Annual Convention, in introducing sub-rule 51(c) into the rules of the union in 1978, did so after a debate in which speakers opposed the proposed alteration to the rules and after considering, and deciding in favour of, an amendment to the proposal. As the material quoted above shows, the first attempt, in 1974, to obtain a rule somewhat like - albeit different from - sub-rule 51(c) failed. The evidence as to the debate at the Annual Convention in 1978 does not give any positive assistance to the respondent union but it operates to prevent the applicant from contending that the sub-rule 10. was inserted without any consideration of the factors for and against such a proposal. It shows that there was a debate in the Annual Convention as to whether sub-rule 51(c) should be adopted, and as to what its terms should be, although the details of that debate are, of course, not relevant in these proceedings. Secondly, there is some information as to the approximate ages for retirement in certain sections of the industries in which members of the union are employed. There is information in the affidavit of Mr Begg, some of which has been quoted earlier, and also in that of Mr Barr, who is the General Secretary of the union and was the Branch Secretary in the West Australian Branch of the union from 1972 to 1984. In addition, Mr Barr gave oral evidence, which I accept, that he estimated that at least 98% of the members of the union retire from employment at the age of 65 years or earlier. He said that the figure may be as high as 99.5%. The fact that some members do not retire at 65 years of age does not give the applicant any subsantial assistance in this matter. As indicated to the applicant's solicitor during the hearing, the court assumes that there are persons holding office in this union, and in other organizations, who are fully competent to perform their duties beyond the age of 65 years and whose experience may be of great value to an employer. It may be that the applicant 11. is 1n that category. However, the union is entitled to deal with the question of retirement ona general basis. There would obviously be difficulties in seeking to meet the problem by having a rule which required each potential candidate who had reached the age of 65 years to submit himself to some test designed to ascertain whether his memory, his powers of concentration and his other physical and mental capacities were such that he was still fully competent to properly perform the duties of his office. It may well be that, if there were sucha test, the applicant would pass it with flying colours. In that connexion it may be noted that Mr Barr gave evidence as to an alteration to the rules in 1984, which had the intention and effect of including in the definition of ""officer", organizers who were elected; he said that that alteration was made to avoid any conflict with the requirements of the Act and had no reference to the position of Mr Doyle as an individual. The issue in this case, stated in an abbreviated form, is whether Rule 5i(c), in addressing the problem of the possible effect of age upon the proper performance of duties by "officers" of the union, has imposed upon members conditions which are unreasonable. I am unable to reach the conclusion that the sub-rule does so. 12. It is not necessary to refer in detail to all of the submissions put by the applicant. It was said, for example, that, as stated by Mr Doyle ina later affidavit, the union does not keep records of the ages of members and that the rules, in their present form do not authorize the returning officer at an election to require candidates to submit birth certificates or statutory declarations as to their ages. It may be that the rules ought to confer such a power expressly, but the absence of such a rule does not, in My opinion, support the applicant's case. Plainly a returning officer who has some reason to believe that a candidate may be 65 years of age or more could ask the candidate to supply either a birth certificate or a statutory declaration or some other evidence on that question. Although a candidate would not be required by the present rules to comply with the returning officer's request, he would be aware of the fact that the returning officer has the power to reject his nomination and, accordingly, that it would be very much in his own interests to comply with such a request. One would expect common sense to prevail and that no problem would arise in practice. However, if a candidate failed to do so it would be a matter for the returning officer, in the light of whatever information he had in his possession, to determine whether to accept the nomination. The returning officer would know that, if he rejected a nomination on that ground, he might be 13. faced with an inquiry by the court under Part IX of the Act into the question of whether the rejection of the nomination constituted an "irregularity". On the other hand, the candidate should realize that if, being 65 years or more at the time when nominations were called for by the returning officer, his nomination was accepted and he was elected, then he might be faced with a similar inquiry under Part IX or, alternatively, he might be the respondent to proceedings under s.141 of the Act, seeking from the court directions that he perform and observe the rules of the union by refraining from holding himself out to the members as holding the office to which he had been elected despite Rule 51(c). The applicant referred to the fact that the law does not require candidates for Parliament to be under the age of 65 years at the time of their nomination. I have taken that fact into account but it is far from being conclusive. It was also contended that there "could not be anything more democratic than to have a system where there is no compulsory age, a cut-off age, because if members do not want the person, they do not vote for him... it is... undemocratic that members are denied the right to vote for a person ... simply because that person happens to be 65 years or older". I accept that there is some force in the argument that the question of whether to elect or re-elect such a 14. person to an office is one which could well be left to the members to decide as voters. If the rules so provided they would not, in my opinion, contravene s.140(1)(c). However, it does not follow that a rule which does not leave it to the Members as voters (e.g., sub-rule 51l(c)) contravenes the sub-section and I am not prepared to conclude that it does. It was also put that "it is ... fair and proper as a matter of principle that those who pay full dues he entitled to nominate and be elected to positions irrespective of their age". Such a principle would permit a member of (say) 95 years of age to be nominated and to put the union to the expense of an election that would not be necessary if there were no other candidates. In my opinion there is no "principle" preventing the rules from fixing an age limit beyond which a member may not be nominated for office. of course, the age limit so fixed must not be so lowas to impose unreasonable conditions on members. Allied to that submission was a contention that sub-rule 51(c) prevents members who have attained the age of 65 years from participating "in any real way in the affairs of the organization" to which they are paying full dues. That contention misconceives the effect of the sub-rule. It does not prevent participation in the affairs of the union; the members concerned can still vote at elections, and can vote for whichever candidate they wish to "represent" them - 15. provided that his age complies with rule 5l(c). They can attend and vote at meetings, and that is important because ultimate control of the union is - and is required to be - in the hands of the members. Regulation 115(1)(d)(v) of the Conciliation and Arbitration Regulations requires that the certified rules of the union provide for "(v) the control of committees of the association and its branches by the members of the association and the members of the branches, respectively". Regulation 115(1) applies to organizations registered under the Act in like manner to the way in which it applies to associations applying for registration. The applicant's solicitor also referred to what he called "the severity of the restriction created by" the sub-rule. I do not accept that the restriction is, on the material before the court, a "severe" one. He also submitted that the question to he asked is " what discernible benefit is there to the union in having this rule" and added that "there is no evidence before this court that the rule was either needed (or) that it has been of benefit to the union..." Allied to this was a submission that the court "should have and require more justification" for the sub-rule. In my opinion, those submissions misconceive the function of this court under s.140 of the Act for reasons already given. In my opinion the applicant failed to show that 16. sub-rule 51(c) contravenes s.140(1) of the Act. the rule to show cause was discharged. Kean. AR Seton en \4as Accordingly