- io CATCHWORDS INDUSTRIAL LAW - registered organization - whether Industrial Registrar has power to delete part of organization rule amendment submitted for his consent. Conciliation and Arbitration Act 1904 ss. 139(4), 159 Re Stapleton (1983) 50 ALR 293 Allen and Ford v Laragy and Others (1975) 7 ALR 261 IN THE MATTER of an application by BARRY TREVOR LINSKET for an inquiry into an election in the FEDERATED CLERKS UNION OF AUSTRALIA (CENTRAL AND SOUTHERN QUEENSLAND BRANCH) NO. Q2 OF 1986 KEELY J. MELBOURNE 22 JULY, 1987 wer em ens "> .oser IN THE FEDERAL COURT OF AUSTRALTA QUEENSLAND DISTRICT REGISTRY No. Q 2 of 1986 INDUSTRIAL DIVISION IN THE MATTER of an application by Barry Trevor Linsket for an inquiry into an election in the Federated Clerks Union of Australia (R No. 113 of 1986) AND IN THE MATTER of a reference Of such application by the Industrial Registrar to the Federal Court of Australia 22 JULY, 1987 KEELY J. REASONS FOR JUDGMENT This is an application by Barry Trevor Linsket (the applicant) for an inquiry under Part IX of the Conciliation and Arbitration Act 1904 (the Act) into alleged irregularities which he claimed occurred in or in connexion with the 1985 triennial election (the election) for District Representatives on Branch Council from three different districts of the Central and Southern Queensland Branch (the Branch) of the Federated Clerks' Union of Australia (the Union). The returning officer for the election, which was conducted under s. 170 of the Act, was Mr. K. J. Fitzgerald, a member of staff of the Australian Electoral Commission, who declared the results of the election on 20 November 1985. wT ae The applicant claimed that the nominations of himself and two other members as candidates for election as District Representatives on Branch Council (the three nominees) had been incorrectly rejected. The case was originally heard over a period of three days, commencing on 5 May 1987. At that hearing the parties' submissions were directed towards a document certified by a Deputy Industrial Registrar as being the registered Branch rules as at 14 October 1985. Rule 22{b) of that document read as follows: "22 - Nominations - Triennial Ballot (b) A member shall be eligible for nomination for election to Branch Council ... if he has been a financial Member in accordance with Branch Rule 15 for the twelve (12) calendar months immediately prior to the closing date of nominations in the year in which the Branch Triennial Election shall be conducted. Provided that ..." Branch Rule 15 dealt with the annual contributions payable to the Union and provided that they were due and payable in advance from the first day of January each year (subject to the determination by Branch Council of a Moratorium period). The applicant contended that, at the date of closing of nominations, on 14 October 1985, each of the three Re oe net reer ens nominees was eligible for nomination as required by Rule 22(b). It was common ground that as at that date the three nominees had paid all arrears in respect of the period of 12 months immediately prior to that date. It was undisputed that at some stage during that period each had been unfinancial. The subject of the argument at that stage of the hearing was whether rule 22(b) required continuity of both membership and financiality for the relevant twelve months. Counsel for twenty-three persons (including Mr. Mapstone the Branch President and Ms. Callaghan the Branch Secretary), named in a list filed in the court on 5 May 1987, (the respondents) submitted that a person who had been unfinancial in respect of any part of the relevant 12 month period was not eligible to stand for election. Towards the end of that stage of the hearing an exhibit submitted by the respondents showed the purported certification by the Industrial Registrar of alterations to Branch rules 15, 22, 34, 43 and 55 on 9 July 1980. That exhibit raised the possibility that rule 22(b), in the form then before the court, was in a form different from the amended rule 22(b) which had been made by the Union and submitted to the Industrial Registrar. It was initially cee en NS RN ee TT mar ~~ unclear as to what form the rule took immediately before the Industrial Registrar's certificate dated 9 July 1980, because the precise terms of the amendment made by the Union to rule 22(b) were not known; for example, whether that amendment did no more than insert the word "continuously". Shortly before the end of the hearing on 7 May 1987, the applicant submitted further documentation obtained from Melbourne which raised the possibility that a number of changes to Branch rule 22(b) had been made by the appropriate Union body in 1980. Given that the difficulty had arisen at a late stage and that it went to the heart of the argument, the court, in reserving its decision, did so subject to the respondents having the right to seek to have the matter relisted for further argument if the matter could not be adequately dealt with by written submissions by the parties i.e. after considering their position in the light of a further examination of the facts relating to the 1980 amendment of the Branch rules. At the request of the respondents the matter was relisted for further hearing, (which commenced 25 June 1987) and the Industrial Registrar was given notice of the matter to enable him, if he thought fit, to seek to put evidentiary Material or submissions at the further hearing. He filed a notice of appearance and also an affidavit by Mr. Brian Holdorf, a Deputy Industrial Registrar, which affidavit — wea et —— oo ar en ee ee en - exhibited documents from the Industrial Registrar's fale relating to the Union's registration and 1ts certified rules. That material, which was received in evidence, shows that on 12 April 1980 the Branch Council had amended the Branch rules by substituting a new Branch rule 22(b) for that previously existing and that that new sub-rule had been approved by the Federal Executive on 26 May 1980 in accordance with Federal rule 12(2). The substituted Branch rule 22(b), filed in the office of the Industrial Registrar under s. 139(4) of the Act, was as follows:- "(b) A member shall be eligible for nomination for election to Branch Council, Branch Executive, or Federal Council if he has been a continuousl financial member in accordance with Branch Rule 15 for the twelve (12) calendar months immediately prior to the closing date of nominations in the year in which the Branch Triennial Election shall be conducted. Provided that ..." (emphasis added) It will be noted that that wording is the same as that set out earlier in these reasons (as being in the form certified by the Industrial Registrar) except that it includes the word "continuously". It is necessary to examine how the word "continuously" was omitted. On 9 July 1980 the Industrial Registrar recorded in his certificate that in his opinion the — aaieeee me) eR ee eee vote} we er oe alterations to certain rules of the Branch submitted to him by the union - "comply with and are not contrary to the provisions of the Act, the Regulations or of an Award, are not otherwise contrary to law and have been made in accordance with the relevant procedures laid down by the rules of the organization. I certify accordingly in pursuance of sub-section 139(4)." That certificate of the Industrial Registrar was expressed as including alterations to rule 22 of the Branch "with the exception of the word 'continuously' in altered sub-rule (b) of [the new] rule 22". It is clear that the Industrial Registrar's certificate, insofar as it purported to "certify" in relation to the alterations which had been made to Branch rule 22(b) and "filed in the office of the [Industrial] Registrar", was a certificate with respect to an alteration to the sub-rule in a form different from the alteration made by the Branch Council (which alteration had been approved by the Federal Executive of the Union). The difference was that the Industrial Registrar had omitted the word "continuously" from it. In his letter to the Branch Secretary of the Union, dated 9 July 1980, which enclosed his certificate under s. 139(4), the Industrial Registrar made it clear that he had woo oe ae ~T spe oe Por er eee ees deliberately omitted the word "continuously". He had taken that course because in his opinion sub-rule 22(b), in the form in which it appeared as a result of the alteration made by the Branch Council (and approved by the Federal Executive), by reason of the inclusion of the word "continuously" :- ",.. imposes upon members of the Branch a condition or restriction which, having regard to object 2(f) of the Conciliation and Arbitration Act regarding the democratic control of organizations, is unreasonable or unjust. Such a provision is contrary to section 140(1) of the Act. Your attention is drawn to the judgment of the Industrial Division of the Federal Court of Australia in Lovell v. Federated Liquor and Allied Industries Employees Union of Australia (1978) (35 F.L.R. 72) regarding the imposition of qualifying periods of membership for election to various offices. For the above reasons, I have not certified the word "continuously" in altered sub-rule (b) of rule 22. It is convenient to say at this point that I do not accept the submission advanced by the respondents' counsel that the word "continuously" was merely a word of emphasis and that its omission did not change the meaning of the sub-rule. Section 139(4) of the Act at that time read as follows:-— we eens An alteration of the rules of an organization to which the consent of the + oe af yy 7 pred sare Registrar under this section is not required does not have effect until particulars of the alteration have been filed in the office of the Registrar and the Registrar has certified that, un his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law and has been made in accordance with the relevant procedures laid down by the rules of the organization." The question arises as to whether the Industrial Registrar had power to grant a certificate in respect of the alteration to the sub-rule, not in the form in which it was made by the Branch but in a form from which the word "continuously" had been omitted by him. That question was considered in this Court in Re Stapleton (1983) 50 ALR 293. In that case Evatt J. said at 301:- "It was submitted that the striking out of the word "continuously" by the Registrar in such circumstances was beyond power given to him by s. 139(4) of the Act and that the Industrial Registrar, having formed the view that the sub-rule as lodged for certification was contrary to the provisions of the Act, had no alternative but to disallow the amendment in toto. Accordingly, so the argument' ran, his certification of rr 47(c) with the word "continuously" omitted was ultra vires and void. Assuming the Industrial Registrar had, of his own motion, deleted the word "continuously" from sub-r (c) of rc 47 on 1 June 1981 then such deletion, in my view, would have been void. Section 139(4) of the Act does not permit the Industrial Registrar, in the circumstances under discussion here, to delete a word or a phrase from adopted rule amendments of his own motion (contrast the position under s -_ en a enn ee ee » & ree ae en. yreroe 140(8)). If he is of the opinion that a particular word or phrase in a rule or sub-rule amendment makes that rule or sub-rule contrary to the Act etc, he should refuse certification of the rule or sub-rule with the consequence that the amendment has no effect." Counsel for the Industrial Registrar and for the respondents did not suggest that there was any distinction between the issue there decided and that in the present case but they submitted that the decision was wrong and should not be followed. In support of that submission they referred to Allen and Ford v Laragy and others (1975) 7 ALR 261, where the Australian Industrial Court (Spicer CJ., Smithers and Woodward JJ.} said (at 263):- "The October 1974 amendments were submitted to the Industrial Registrar, who certified pursuant to s. 139(4) of the Act that the bulk of the amendments were not contrary to law, but withheld his certificate from that part of the amendment relating to the year commencing 1 July 1974. In our opinion the Industrial Registrar was clearly correct in this course. Subscriptions were payable on a quarterly basis, one quarter had already expired and the rule would have had the effect of deeming unfinancial any person who had not paid a subscription at the higher rate during that quarter. This would have had serious consequences on the right of any such person to stand for office or to vote on matters arising within the organization. The Industrial Registrar no doubt determined that the proposed amendment would be unjust and oppressive and therefore in breach of s. 140 of the Act. Since he had no power to re-write the proposed rule to change the date of commencement, he could only withhold his certificate from a severable part of the rule, and this he did." eae "i ee 10. Particular reliance was placed upon the last sentence in that passage. Two preliminary observations may be made in relation to that aspect. First, there is nothing in the reasons for judgment in that case to show that the court heard any argument on the question of whether the Industrial Registrar had power to "withhold his certificate from a severable part of the rule". Second, a decision of the Australian Industrial Court, although obviously of very considerable persuasive value, is not binding upon this court constituted by a single judge. In my opinion that passage from Allen's case was an obiter dictum. It was pointed out by the respondents and I accept that the court, in considering that case, had to look at the wording of the relevant rule immediately before considering the later amendment which was the matter before the court; in that sense the rule in its earlier form was considered by the court and it was in that context that the court referred to the Industrial Registrar witholding "his certificate from a severable part of the rule". However, in my view the passage quoted was not part of the ratio of the court's decision. FT pee ete ere meemmere are we et en er ee rere ~ te 7 ole aa I ens ry "4 11. Having considered both decisions, I prefer, with respect, the reasons for judgment of Evatt J. In my opinion the Industrial Registrar was required by s. 139(4) to form an opinion as to whether an alteration to rules filed in his office is "contrary to the provisions of this Act" - in the present case by reason of the existence in the amended rule of the word "continuously". Having formed the opinion, expressed in his letter to the Branch, dated 9 July 1980 (in the passage set out above) that the sub-rule was contrary to s. 140(1) of the Act by reason of the word "continuously", the Industrial Registrar's duty was to refuse to give a certificate under s. 139(4) in respect of the alteration to the sub-rule. I agree, with respect, with the statement by Evatt J. {quoted earlier) that s. 139(4) "does not permit the Industrial Registrar ... to delete a word or a phrase from adopted rule amendments of his own motion". I also agree with his Honour that the absence of such a power in s. 139(4) may be contrasted with s. 140; s. 140(7) gives the Industrial Registrar an express power, in certain circumstances, to "determine [upon certain] alterations of the rules" and s. 140(8) provides that he "shall register the alterations so determined by him and thereupon the rules shall be deemed to be altered accordingly". It may be added that sub-sections 133(4)(4A)(4D) and (5) and sub-sections 142A(10) and (11) Similarly confer express powers and impose express duties eso we eee 12. upon the Industrial Registrar to register alterations to rules "determined by him ... and thereupon the rules shall be deemed to be altered accordingly". The express directions by the Parliament, in those sub-sections, that "thereupon the rules shall be deemed to be altered" tend to reinforce the opinion that, in the absence of such an express power to alter the rules of an organization, conferred upon the Industrial Registrar and accompanied by an express deeming provision, the power to alter rules resides only in the organization (cf. s. 132(2) and Regulation 115(1)(d)(xiv) which require that an organization's rules provide for "the alteration of its rules"). In my opinion the Industrial Registrar's power under s. 139(4) was confined to giving effect to his opinion by giving, or refusing to give, his certificate. The intention of Parliament that the power to alter rules is only to be exercised by the organization (except where the Act expressly says so) is again manifested in s. 143(2A) where, in proceedings seeking the cancellation of the registration of an organization, the court is given power to "order that the rules of the organization be amended in such manner as to ...". The Industrial Registrar's power under s. 139(4) is to grant a certificate that "the alteration complies with ... 13. this Act ...". It will be noted that it is not expressed as a power to so certify in respect of the alteration "in whole or in part" and in that respect may be contrasted with the words "in whole or in part" in s. 139(2) of the Act; those words were inserted in 1956 into a sub-section which conferred upon the Industrial Registrar a power to consent to a change or alteration of rules dealing with the matters referred to in s. 139(1). As Mr. Tracey, of counsel, on behalf of the applicant pointed out, s. 139(4) may also be contrasted with s. 140(5D) which confers upon the court an express power to declare that "the whole or a part" of a rule contravenes s. 140(1). Mr. Staindl, of counsel, on behalf of the Industrial Registrar, submitted that s. 33(3) and s. 33(3A) of the Acts Interpretation Act 1901 authorised "the issuing of a certificate [by the Industrial Registrar] for part of [the] matters under consideration by the registrar". Section 33(3A) states that "[w]here an Act confers a power to make ++. an instrument with respect to particular matters, the power shall be construed as including a power to make ... such an instrument with respect to some only of those matters." I accept Mr. Tracey's contention that that sub-section does not apply to the power conferred by s. 139(4) which is not a power "with respect to particular matters" but a power with respect to one matter only, namely, the granting of a certificate as to an "alteration of the rules of an organization." snes -arore Bee 14. I should add that if, contrary to the opinion expressed above, the Industrial Registrar had power to "withhold his certificate from a severable part of the rule" (Allen's case, supra, at 263), in my opinion the word "continuously" did not constitute such a severable part of the rule; rule 22(b) is substantially different if the word "continuously" is omitted (see the enunciation of the relevant principles on severability cases by Cussen J. in Olsen v City of Camberwell [1926] VLR 58 at 68). It follows that as the Industrial Registrar had no power to certify in the manner in which he purported to do in July 1980, rule 22(b) remains in the form it took immediately prior to that certificate. It read as follows: "Rule 22 —- Nominations - Triennial Ballot (b) A member to be eligible for nomination to Branch Council ... must comply with the following requirements:- (i) He must be a financial member of the Branch as prescribed by Rule 21 with 12 calendar months' membership immediately prior to the closure date of nominations." On the basis of that sub-rule it is clear that the three nominees were eligible for nomination and the Returning Officer erred in rejecting their nominations - although without any fault on his part because he acted in accordance ——-— were + ve oe 15. with rules which were presented to him as the certified rules at the time. Accordingly I find that an irregularity occurred in the election consisting of the rejection of the nominations of Barry Trevor Linsket, Wayne Frederick Williams and Ian Patrick Carroll. Having regard to that irregularity in my opinion the result of the election may have been affected (s. 165(4)). Another irregularity was also found by the court in matter Q3 of 1986 -— see the reasons for judgment delivered on 5 June 1986. At the request of all the parties in both matter Q3 of 1986 and in the present matter, the court has refrained from forming any opinion at this time as to what orders, if any, should be made in either of the two matters. The further hearing of the present application will be adjourned until Thursday 27 August 1987 at 10.15 a.m. in Melbourne at which time and place matter Q3 of 1986 will also be listed for further hearing. The parties are directed that they shall file and serve on all other parties, no later than 4.00 p.m. on 24 wean "ce of io. August 1987, any affidavit or other material upon which 1t is proposed to rely at the resumed hearing. I certify that this and the preceding fifteen pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely Associate: MA Nenwecu Date: 2m SUA AS ece Ve Dates of Hearing Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent Solicitors for the Respondent Counsel for the Industrial Registrar Solicitor for the Industrial Registrar 5, 6, 7 May, 25 & 26 June Mr. R. Tracey Messrs. Mullins & Mullins Mr. C. Hampson Q.C. with Mr. Amerena Mr. Crooke Q.C. with Mr. Amerena Messrs. Callaghan & Reidy Mr. D. J. Staindl Australian Government Solicitor we ee pe