eo. %d| SS . 9 Gt mn CATCHWOPE Incustr.ial law - registered organizatior - validity of rules - adjournment to allsw cpportunity to alter rules - amendmerts made ea m to cure def - wh. roper to consider validity of wm n i] r 2er ie] amenements other than those made to cure defects. [s) He hs io ir cr rs 1s] cr tre oO Sj Red Ir? faaive} °o > . mM te p> Qo . wo v LoS) uw > uw Bw is w Conciliation an Fecgeral Court Rules o. 33 ©. 5. Luckman v. Australian Postal and Telecommunications Union (1978) 22 A.L.R. 393. HARRY DAVID KRANTZ v. FEDERATED CLERKS' UNION OF AUSTRALIA GRAY J. 24TH MAY, 1985 ADELAIDE. - 2 - Sallzvan sworn en l5cth May 1985, in which evidence 15 given of varicus amendments made t3 various rules of the organization, Deen certified by the Industrial Pegistrar fpursuart to s. 179(4) of the Act cn 29th April 1984. Dr. Jessup, on behalf of the organizatior, has submitted tome '$thst amongst those amendments to the rules are new oming the defect whach oO pravisions, which have the effect of over the Court found to exist in the rules of the organization, in —ts ' sudgmenz given on @21ist December 1984. Mr. Heywood-Snith on behalf of the applicants in the proceeding does not dispute that the rule amendments 20 cvercome the defect which was found to G@xXist. He contends, however, that the organization has taken advantage of the adjournment to alter its rules in a number of respects, and that some of the amendments which have beer so made themselves raise other difficulties of compliance with s. 140(1) of the Act. In particular, Mr. HYeywood-Smith desires to draw attention to a number of features of the amendments which he says made provisions which are2 in contravention of 5s. 140(1)(c) of the Act, in that they cimpose on members of the organization conditions, obligations sr restrictions which, having regard to the objects of the Act and the ecurposes of the registration of x organizations under the Act are oppressive, unreasonable or unjust, Iam required to rule as to whether such an attack on the rule amerdments 15 permissible in these proceedings, or as to i] whether, the amerdments kaving become part of the rules of the orgarization, aryone who wishes to challenge their validity under whicn he was considering He had this to say: 'During the course of my mination of the rules it appeared that the effect sf tre amendments made was that there was no power ain the members to remove members of committees. This was of one of the varters in controversy arguec before me, but I have draw the attention of the parties to this loam anformed that steps are being taken to amenc the rules to provide for this power. T make no comment at all as to the validity or propriety sof what 18S proposed to be done i the amendments other than those made to the seven rules attacked, Sut I felt 1t proper to record it, that the attention of the Segistrar might be directed to this question when he 1s considering the certification of any amendments to these rules. In addition, the deletion of r 49 may make 1t necessary to consider the power to remove Sranch officers and members of the State Executive and in the light of the new yr S56 the provisicns of ry 7id), (2) and (f) will require further consideration. These, however, ar@ not part of the matters in controversy betweer the parties at this time and they are matters proper for the decision of the Registrar when the application for certification of the rules comes to him." As appears from that passage the rulé amendments in that case had not been certified under s. 139(4) of the Ack by the time the m Matter came back before his Honour. In the present case the rule amendments have been so certified. This means that the industrial Registrar must have performed his function under s. 139(4) of considering whether the amendments were contrary to the provisions of the Act. The passage that I have referred to from Luckman's case does indicate that the court there was unwilling fag to travel outside the matters in controversy between the parties zm comsidering rule amendments made during an adjournment. Mr. Heywood-Smith has arqued very persuasively that there are matters of convenience to the Court and to the varties, {c) was not rarsei in relation tc any of the rules 1n the proceeding originsaily Sefore me In that sense the case Ido foresee considerable difficulties, if I were to hole that the Court should look at all rule amendments mad wu Suring an adjournment period, for the purposs of determining at large, and without the notification of grounds which 15 inherent zr the Rule to Show Cause procedure, whether they comply or fal to comply with s. 140 generally. Por these reasons I regard it as the better view, on balance, that the Court should confine itself to the question whether the defect which was perceived in the rules at the tame of the original application has been overcome, and if it has, the remainder of the Rule to Show Cause should be discharged. Any challenge to any provisions, which are contained in the amencments to the rules, can be brought forward by the existing parties or, indeed, by any other member who wishes to challenge these rules in the ordinary way. I orger that the remainder of the Rule to Show Cause be discharged. certify that tnos and tne r preceding pages arn a true covy of the R rE