Industrial Relations Commission of New South Wales CITATION : Reference by Industrial Registrar pursuant to s 252 of Industrial Relations Act 1996 of an application by the Secretary of the Real Estate Association of New South Wales for an inquiry into the election of officers of the Association's Executive Committee [2004] NSWIRComm 292 PARTIES : Mr Dennett appeared in person by leave Mr Edwards appeared in person by leave FILE NUMBER: IRC 1247 of 2004 CORAM: Haylen J CATCHWORDS : Registered organisation - election inquiry - 2003 triennial elections - whether person eligible to remain a member when ceasing to be employed in a capacity covered by the constitution - constitution rule permits membership of persons licensed to be employed as real estate salespersons or valuers - entitlement of member properly admitted to membership to remain a member when engaged as an employer in the industry covered by the organisation - nomination for office at triennial elections declined because of unfinanciality - no opportunity given to candidate to rectify anomaly in nomination - duty of returning officer to provide an opportunity to rectify anomaly before close of nominations - fewer nominations received than positions vacant at close of nominations - whether such vacant positions can be filled by members attending Annual General Meeting - vacancies to be treated as casual vacancies and filled in accordance with provisions of s 242 - no irregularity found in 2003 triennial election - filling of casual vacancy not part of triennial election - inquiry confined to triennial election - inquiry terminated Application by Pritchard, Re Federated Clerks' Union of Australia (SA Branch) [1985] 11 IR 112 Australian Postal and Telecommunications Union, ex parte Wilson (1979-80) 28 ALR 330 Cameron v Duncan (1965) 8 FLR 148 Doyle v Australian Workers' Union (1986) 68 ALR 591 Hickson v Australian Electoral Commission (1997) 76 IR 127) CASES CITED : Jutte v Amalgamated Engineering Union (1967) 10 FLR 195 at 201) Re FCU (1982) 1 IR 217 Re Elections for offices in Australian Meat Industry Employees Union (1963) 5 FLR 260 at 265 Sims v AIMPE (1980) Current Review 575 Troja v Australasian Meat Industry Employees Union (Victoria Branch) (1978-1979) 23 ALR 18 Turner v Australasian Coal and Shale Employees Federation and anor (1984) 55 ALR 635 HEARING DATES: 09/08/2004 DATE OF JUDGMENT: 09/30/2004 LEGAL REPRESENTATIVES: Mr Dennett in person Mr Edwards in person JUDGMENT: - 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HAYLEN J 30 September 2004 Matter No. IRC 1247 of 2004 Reference by Industrial Registrar pursuant to s 252 of Industrial Relations Act 1996 of an application by the Secretary of the Real Estate Association of New South Wales for an inquiry into the election of officers of the Association's Executive Committee JUDGMENT [2004] NSWIRComm 292 ELECTIONS IN A REGISTERED ASSOCIATION 1 In September 2003, the Real Estate Association of New South Wales, a registered association of employees, held its triennial elections with voting to be conducted by postal ballot. In that election, Mr Dennett nominated for the positions of President and Secretary of the Association, as did Mr Edwards. Both Mr Dennett and Mr Edwards had been long standing members of the Association and had previously held senior positions on the Association's Executive Committee. 2 The rules of the Association provided that the declaration of the result of the election would take place at the Annual General Meeting and on that occasion Mr Dennett was declared elected unopposed to the position of President and to the position of Secretary of the Association. At the declaration of the poll mention was made of the fact that the Returning Officer had ruled Mr Edwards to be ineligible for election to those two positions because he was not, at the relevant time, a financial member of the Association. That information was apparently passed on to Mr Edwards at about the time of the Annual General Meeting. 3 The Association is a relatively small union and frequently has difficulty in filling positions on its Executive Committee. This difficulty arose again in September 2003 and a number of positions on the Executive Committee were left vacant because insufficient nominations were received by the Returning Officer. As was the usual practice, nominations for those unfilled positions were taken from the floor and Mr Edwards was nominated and elected to the position of Vice-President. This is a position he had held for a number of years. AN APPLICATION FOR AN INQUIRY INTO THE 2003 ELECTION 4 In March 2004, Mr Dennett applied for an inquiry into the September 2003 election of officers of the Association. Mr Dennett claimed that for many years Mr Edwards had been engaged in the real estate industry as an employer and therefore was not eligible to remain a member of the Association and, further, was not eligible in September 2003 to nominate for and be elected to the position of Vice-President of the Association. That application was referred to the Commission in order for an inquiry to be conducted into the 2003 election. EVIDENCE AT THE INQUIRY 5 At the hearing on the inquiry into the election, both Mr Dennett and Mr Edwards were given leave to appear personally. Evidence was given by way of affidavit and both Mr Dennett and Mr Edwards gave oral evidence and were briefly cross-examined. It was evident from the material filed and the cross-examination that there was continuing animosity between Mr Dennett and Mr Edwards: Mr Dennett frankly stated that the personal differences between the two men made the operation of this small union quite difficult and that is why these particular proceedings had been commenced. 6 Mr Dennett informed the Commission that the early membership records of the Association had been destroyed and that there was no record of Mr Edwards' original application to join the Association in 1970 or 1971. A photocopy of the financial records of the Association commencing in 1981 showed that Mr Edwards had been financial except for a period between October 1997 and October 2000. That record showed that, during the latter part of 2000, a fee was paid carrying his membership through to 2001. No further fees were paid until 30 September 2003 when $165 was paid, apparently to address arrears. A further payment of $220 was made in December 2003. 7 Mr Edwards said that he had been a member of the Association for approximately 33 years having joined in about 1970 or 1971. At the time he joined the Association, he was licensed as a real estate salesperson and was employed in that capacity. He thought that, at the time he joined, he had also attained a certificate of registration as a real estate valuer issued by the Real Estate Valuers Registration Board. After being employed in those capacities for some eight years or so, Mr Edwards became an employer in his own right in 1979. At that time, he tendered his resignation to the Executive Committee of the Association because of his changed status but his resignation was declined. In his 33 years of membership of the Association, he had served on the Executive Committee in the capacity of Vice-President for 32 years. He had represented the Association on the Council of Auctioneers and Agents for 14 years. He gave instances of other employers serving on the Executive Committee of the Association. 8 In relation to his financial status, Mr Edwards said that, some years ago, under the presidency of Mr Dougal Watt, the Executive Committee had resolved that members of the Executive Committee would not have to pay membership subscriptions. This decision was taken, he said, to encourage wider participation in the Association and to encourage members to accept office in the Association which had always experienced difficulty in filling positions on the Executive Committee. When that resolution was adopted, he had not paid membership dues until the year 2000. He had since paid all outstanding arrears, even though he felt that he was not obliged to do so because of the resolution exempting members of the Executive Committee from paying the annual subscription fee. There was other evidence which supported Mr Edwards' statement that this decision was the subject of a resolution seconded and passed by the Executive. Mr Dennett contested the statement that a formal resolution was passed and considered the whole matter as being beyond the power of the Executive Committee. 9 It was not until the Annual General Meeting in 2003 that Mr Edwards was informed that he was not regarded as being a financial member of the Association by the Returning Officer and that his nomination for the positions of President and Secretary had been rejected. He was given no opportunity to rectify his unfinancial status or to explain why he was not obliged to pay the annual subscription following the decision of the Executive Committee authorising that approach. 10 Mr Dennett said that he was the Assistant Secretary of the Association when the Executive Committee discussed waiving membership fees for members of the Committee. He had objected to that course being adopted and had pointed out that the rules did not permit such a decision. It was his recollection that the matter was not the subject of a formal resolution passed by the Committee but rather that, after divisions had arisen over the proposal, the President, Mr Watt, had stated that the issue would be resolved by those not wishing to pay annual subscriptions to take that course and that those who wished to pay their annual subscriptions could do so. As Minute Secretary, he recorded no resolution dealing with the issue. Mr Dennett was always of the view that members of the Executive Committee who did not pay their subscriptions were unfinancial, but apparently a number of members chose that course. 11 Mr Dennett stated that he had informed Mr Edwards before the Annual General Meeting that he was unfinancial and not eligible to nominate for office but he could not remember precisely when that conversation took place. It was Mr Edwards' recollection that he was given that information at the Annual General Meeting. Mr Dennett also stated that, when Mr Edwards and another person were nominated from the floor to take up positions on the Executive Committee unopposed, he had taken them from the meeting and told them that they would have to make themselves financial if they were to take up a position on the Executive Committee. In Mr Dennett's words, after being made financial he then "permitted" their nomination to go forward and they were elected unopposed to positions on the Executive Committee. DELIBERATION 12 From the material before the Commission in this inquiry there appear to be at least two issues requiring determination: (a) was Mr Edwards eligible to remain a member of the Association and nominate for and occupy an office in the Association in September 2003 after he became an employer in 1979?; (b) if properly a member of the Association, whether Mr Edwards was an unfinancial member at the September 2003 Annual General Meeting and whether that defect prevented him from nominating and being elected to the position of Vice-President from the floor of the meeting. There are, potentially, a number of other issues arising regarding the operation of the rules of the Association and practices adopted by the Association in the conduct of its affairs. The eligibility of Mr Edwards to remain a member 13 The eligibility of Mr Edwards to remain a member of the Association requires consideration of the Association's Constitution rule. The Constitution Rule provides as follows: CONSTITUTION The Association shall consist of all persons of good character who are admitted to membership of the Association and who are employed or are licensed by the Real Estate Services Council to be employed as: (a) Salesperson in connection with the sale of land and/or buildings of any kind; (b) Salesperson in connection or with the sale or brokerage of businesses of any kind; (c) Salesperson who, for or on behalf of a real estate agent, person or company arranges for the erection of buildings for or on behalf of any other person; (d) Salesperson employed by stock and station agents; (e) Salespersons who possess the necessary recognised real estate qualifications for or on behalf of a real estate agent, person or company, arranges for the leasing of, and manages real property, commercial, industrial or residential; (f) Persons who, for and on behalf of any employer, person or company possess the necessary recognised Certificate of Registration as a practising real estate valuer as issued by The Real Estate Valuers Registration Board and who values real, rural, commercial, industrial or residential property; (g) Officers of the Association. 14 Under rule 5, subject to s 464 of the Industrial Relations Act 1991, an employee who is eligible to become a member in accordance with the rules of the Association is to be admitted as a member unless of generally bad character and upon payment of the contributions prescribed by the rules. Rule 10 permits the purging of the Register of Members by vote of the Executive Committee. Two classes of members who may be purged under this Rule are those who appear to be no longer employed under the Award of the Association and those whose present address or place of employment cannot readily be ascertained by the Secretary. This rule provides that any person whose name has been removed from the Register shall thereupon cease to be a member or have any rights or privileges of membership. Before removing the name of a member from the Register in accordance with this rule, the Executive Committee is obliged to send the member a notice of its intention to remove his or her name and the notice is to specify the grounds upon which such action is to be taken. The rule contemplates that the member would be able to address the Executive Committee before action was taken to have his or her name removed from the Register. 15 Rule 11 permits resignation from the Association and provides that where a member ceases to be eligible to be a member in accordance with the rules of the Association, a Notice of Resignation would take effect on the day on which the Notice was received by the Secretary. Any contributions, levies or fines owing for a period of 6 months' prior to the resignation taking effect had to be paid subject only to the provisions of the Industrial Relations Act 1991. It can be seen that in terms this rule permits resignation but does not require a resignation to be submitted in circumstances where a member is no longer eligible to join the Association. The rule, more importantly, does not declare or treat a member who is no longer eligible to join the Association as ceasing to be a member. The choice seems to be left to the member to resign in those circumstances. 16 Rule 19 permits removal from office by a majority of members present and voting at a meeting convened for the purpose or by a majority vote of the members of the Committee to declare vacant the office of any member of the Committee who has ceased to be eligible under the rules to hold office. It is unclear whether this rule would go so far as to allow removal from office of a person who had ceased to be eligible to join the Association because of its focus on ineligibility "to hold office" in the Association. If this rule operated so as to permit removal from office of a person who was no longer eligible to be a member of the Association, its terms would seem, curiously, to permit that person nevertheless to remain a member of the Association. It may well be that rule 19 has no application to a person in the situation of Mr Edwards. 17 In my view, the proper approach to the rules of the Association in relation to the status of members of the Association who have become ineligible to join the Association is covered by the judgment of the Full Federal Court in Troja v Australasian Meat Industry Employees Union (Victoria Branch) (1978-1979) 23 ALR 18. In that case, J B Sweeney, Keely and Deane JJ were conducting an enquiry into alleged irregularities in an election in a federally registered union. In that case, the Court held that the provisions of s 144 of the Conciliation and Arbitration Act 1904 and the eligibility rule of the union did not deal in any way with the subject of how a person ceased to be a member of the organisation. In that case, the constitution rule of the union dealt only with the eligibility of persons seeking to be members and did not deal with the question of whether members automatically ceased to be members upon taking up employment outside of its terms and coverage. The constitution rule provided that the union was to consist of all persons of good character who were employed in any position in or in connection with or who were usually employed in or were qualified and desired to be employed in the butchering and meat industry. The court was of the view that such a rule dealt only with the eligibility of persons seeking to be members of the union but did not deal with the question of whether members automatically ceased to be members upon ceasing to fall within the terms of the constitution rule. The constitution rule, on its face, did not deal with the subject of termination of membership - it had to be dealt with in its context and, although an important rule, was merely one in a set of rules. It was noted that there was a separate rule dealing with resignation of members including resignation where the member ceased to be employed in or in connection with the industry covered by the union. A further rule dealt with members leaving or ceasing work in the industry and obtaining a clearance ticket. 18 Keely J, in whose judgment the other members of the court concurred, said at page 26: In my view Rule 4 does not bring about a termination of membership upon the member ceasing to fall within the class there set out. The intention of the Rules is that membership may be terminated in the manner dealt with by Rule 38 and Rule 39. Further, Rule 10(e) provides that membership shall automatically cease in the case of a member 'who is not employed in the trade, who is 36 months in arrears with contributions'. I accept Mr Lawrence's argument that, apart from Rule 10(e) and Rule 39(3), membership does not cease until the member takes some positive action in compliance with the requirements of Rule 38 or Rule 39 - or under s 145 of the Act if its terms operate to permit resignation in circumstances not giving rise to such a right under Rule 38 or Rule 39. Accordingly, it is not correct to say that membership ceased automatically whenever a member left the trade or returned to some other regular occupation. 19 The approach of the Full Court in Troja was applied and followed by another Full Court (Northrop, Keely and Gray JJ) in Turner v Australasian Coal and Shale Employees Federation and anor (1984) 55 ALR 635 and a further Full Court (Evatt, Sheppard and Gray JJ) in Doyle v Australian Workers' Union (1986) 68 ALR 591. My own brief researches indicate that as at 2003, no other consideration had been given to this approach and it has not been called into question. In those circumstances I find that approach to the construction of union rules highly persuasive and applicable in the present case. In the rules of the Association, rule 2 deals only with eligibility for membership and does not deal with the subject of cessation of membership. Rule 10 specifically deals with purging the register in circumstances where a person appears to be no longer employed under the award of the Association, and rule 11 permits resignation by notice given by the member where the member ceases to be eligible in accordance with the rules of the Association, a term I take to be a reference to no longer being employed in one of the classifications covered by the Constitution rule. Thus, the rules as a whole make a variety of provisions to deal with a member leaving occupations covered by the constitution but does not require such members to leave the union, nor are such persons automatically purged from the register of members. 20 It is common ground that Mr Edwards has not resigned his membership nor has the Executive Committee taken any step under the rules to remove him from membership because he is no longer engaged in a capacity covered by the Constitution. It therefore follows that Mr Edwards remains a member of the Association and that in September 2003, Mr Edwards was eligible to be nominated as a member of the Executive Committee and, if elected, to hold that office. 21 In the material filed by Mr Dennett, there is a copy of a letter dated 16 February 2004 from Mr Dennett in his capacity as President and Secretary of the Association directed to Mr Edwards which informs Mr Edwards that his membership is terminated and refunding his membership fees. Mr Dennett had been advised that the provisions of the Industrial Relations Act 1996 precluded an employer in the industry being a member of an industrial trade union in that industry and consequently a member of the Executive Committee. There is no rule which authorised Mr Dennett to take that action although that action could have been taken by the Executive Committee. Having regard to the construction of the rules of the Association I have adopted Mr Dennett was mistaken in this view and his unilateral act of terminating Mr Edwards' membership was not authorised by the rules of the Association. Mr Edwards refused to accept his removal from membership and refunded the membership fees sent to him by Mr Dennett. 22 While it is clear that the central issue which prompted this application for inquiry was whether Mr Edwards' status as an employer made him ineligible for continued membership of the Association, there are other aspects of the Constitution rule which should be considered in light of the ongoing difficulty evident in the operation of the Executive Committee. On its proper construction, the Association can admit to membership people who are employed variously as salespersons or valuers or persons who are licensed to be employed as various kinds of salespersons or valuers. Thus the Constitution rule contemplates that a person can be admitted and remain a member even if not employed as a real estate salesperson or valuer so long as that person is licensed to be so employed. As I have already indicated, the evidence establishes that, at the time that he joined the Association, Mr Edwards was both employed and licensed to be employed as a real estate sales person and as a real estate valuer. Although now engaged as an employer and no longer "employed" as a real estate salesperson, he appears to continue to be licensed by the relevant authority to be employed as a real estate salesperson and, further, he is licensed to be employed as a real estate valuer. The content of the Constitution rule when dealing with a registered real estate valuer in paragraph (f) of rule 2 is a little disjointed but the intention of the rule appears to be clear. The introductory words provide that those who are of good character can be admitted to membership of the Association so long as they are employed or licensed to be employed as a real estate sales person or valuer. On the evidence, Mr Edwards at least is a licensed salesperson and valuer and thus is licensed to be employed in these capacities even if he is not presently employed in those capacities. Further submissions called 23 During the course of the hearing I drew the parties' attention to the line of cases referred to in paragraphs [17] - [19] of this judgment and allowed the parties an opportunity to obtain advice, if thought appropriate, in relation to those matters and to make further submissions at a resumed hearing. At the resumed hearing, not surprisingly, Mr Edwards accepted the line of authority in the Federal Court and submitted that it covered his position as a member of the Association. He had joined the Association when he was licensed and employed as a real estate salesperson and valuer and had remained licensed to be employed in those capacities: that was the position at the time of his nomination at the 2003 elections and was the position when he was elected unopposed as the Vice-President of the Association at the Annual General Meeting. 24 Mr Dennett, on the other hand, sought to distinguish the line of cases on the basis that they did not deal with the same point raised in this inquiry. In those cases the issue was the effect of the rules of an Association when a candidate for election was no longer engaged in one of the capacities falling within the Constitution rule, whereas, this case dealt with the issue of a person engaged as an employer in the industry covered the Association being able to assume office in an employee's trade union. Mr Dennett pointed to the fact that s 5 of the Industrial Relations Act 1996 defined an "employee" in a way which did not encompass a person who was in fact an employer. The Act proceeded upon the basis that there would be registered organisations of employers and employees and that separation had specifically been recognised, for instance, by s 223 of the 1996 Act. In his submission a registered organisation of employees could not have as members persons who were employers. 25 Generally speaking the analysis conducted by Mr Dennett is accurate but as the judgments of the Federal Court make clear, that analysis is not the end of the issue where a person was eligible to join an Association when taking up membership but later assumes an occupation which is not within the constitutional coverage of the Association. The line of authority in the Federal Court proceeds on the basis that the constitution or eligibility rule of an organisation simply does not usually deal with a member who after validly taking up membership later becomes employed in a capacity outside the coverage of the Constitution rule. In the absence of some specific provision in the Constitution rule making such a person ineligible to continue membership, then consideration must be given to the other rules of the Association. Further, in this particular Association the Constitution rule deals with entitlement to membership and does so in a way that permits a person to become and remain a member where they are licensed in certain capacities even if at the time they are not employed in those capacities. Mr Edwards is now such a person. There are rules which permit a purging of the register of people who are no longer employed in a capacity covered by the Constitution but the rules require action to be taken through the Executive Committee or through a Special General Meeting and the person is not automatically purged from membership because of a change in employment circumstances. It is of some interest that in the present proceedings there is evidence that the members of the Executive Committee (or a likely majority of them) would not vote to exclude Mr Edwards from membership but support his continued role in the Association. 26 A similar contention was dealt with by Gray J in Application by Prtichard; Re Federated Clerks' Union of Australia (SA Branch) [1985] 11 IR 112. During the course of an election inquiry brought under the terms of the Conciliation and Arbitration Act, 1904, it was submitted that a registered organisation failed to remain an association of a kind referred to in s 132 of the Act when it continued to have as members persons who ceased to be employed or who had ceased to be engaged in any industrial pursuit in respect of which the organisation had constitutional coverage. Gray J rejected that contention noting that it was common for organisations not to have rules providing for the automatic cessation of membership by persons who ceased to be employed in occupations falling within the conditions of eligibility. His Honour cited Troja in support of that conclusion as well as Re FCU (1982) 1 IR 217; Sims v AIMPE (1980) Current Review 575 and Cameron v Duncan (1965) 8 FLR 148. Various provisions of the Act were referred to which operated such that persons who were qualified to be engaged as employees were regarded as "employees" for the purposes of the Act. His Honour found it "surprising" that the effect of the contrary contention had never been identified in the earlier cases if that was the proper construction of the Act and registered rules made under the provisions of the Act. In view of the absence of detailed argument, his Honour left open the position of members who had since become members of Parliament or judges. 27 Having considered these further submissions I am content to confirm my earlier view that Mr Edwards, at all relevant time, remained a valid member of the Association and was eligible to nominate for office in the September 2003 elections and to occupy that office if so elected absent some resolution authorised under the rules to remove him either from membership or from a specified office. The financial status of Mr Edwards 28 The next issue requiring consideration is the financial status of Mr Edwards. This matter was not raised in the application for an inquiry into the September 2003 election of officers but it has long been held that an inquiry is not to be limited by the matters which are contained in the application for inquiry: once an inquiry is put in train, the Court is empowered to examine any breach of the Act or relevant union rules or conduct by officials, parties or individuals which is disclosed by the evidence and through which an irregularity within the meaning of the Act may have occurred (re Australian Postal and Telecommunications Union; ex parte Wilson (1979-80) 28 ALR 330; Re Elections for offices in Australian Meat Industry Employees Union (1963) 5 FLR 260 at 265; Jutte v Amalgamated Engineering Union (1967) 10 FLR 195 at 201). 29 There is no dispute that, at the Annual General Meeting in September 2003, Mr Edwards was not financial by paying the dues set in accordance with the Rules of the Association. On the evidence, it was known to Mr Dennett and others on the Executive Committee that a number of members of the Executive Committee operated in accordance with the purported decision of the Executive Committee to waive membership fees for members of that Committee. There was other evidence called in the Inquiry which supports a conclusion that such a decision was made by the Executive Committee. For a number of years the Association permitted Mr Edwards to remain a member of the Executive Committee, to retain all membership privileges by treating him as a valid and financial member, and took no steps to demand payment of any overdue fees or subscriptions. There is no evidence of a notification to Mr Edwards of his unfinanciality or of a demand that he make himself financial. 30 The practice relating to waiver of fees referred to by Mr Edwards was not, however, sanctioned by the rules. Rule 8 set the contributions to be paid by members at $50 per annum payable on the first day of April or October of each year. Rule 9 provides that where a member is more than three months in arrears, the member is deemed to be unfinancial and will be excluded from all privileges of membership although the Executive Committee may suspend payment where a member notifies the Secretary that he or she is out of work in which case the Executive Committee may suspend the payment. Rule 14 deals with the Executive Committee and its powers as the governing body of the Association. It is required to give full effect to the rules and is given specific powers, none of which confer on the Executive Committee the power to waive membership fees for persons who occupy office in the Association. In relation to the alteration of rules, rule 26 provides that, subject to the approval of the Industrial Registrar, the rules may be amended or repealed or new rules made by resolution passed at a Special General Meeting called for the purpose. That rule does not contemplate that the Executive Committee can, by simple resolution, alter or waive the operation of the subscription rule or any other rule of the Association. 31 Having regard to this brief survey of the relevant rules, it would appear that for a period of time covering a number of years Mr Edwards was unfinancial yet occupied the senior position of Vice-President of the Association and represented the Association on a number of professional and regulatory bodies. On the evidence, I accept that Mr Edwards did not pay annual subscriptions because of his bona fide belief that the Executive Committee had resolved to waive the fees for members of that Committee. As I have earlier observed he was given no notice of being in arrears nor was any demand made of him to remedy his unfinancial status: indeed, during these years, Mr Edwards was treated and allowed to function as a fully paid up member of the union, exercising all the rights and privileges conferred on him as a member by the rules of the union. While unfinancial during this time there is no dispute that Mr Edwards made himself financial by paying arrears while attending the September Annual General Meeting (see Hickson v Australian Electoral Commission (1997) 76 IR 127) A triennial election or a casual vacancy? 32 Further potential issues arise relating to the nature of the vacancy filled by Mr Edwards at the September 2003 Annual General Meeting. Rule 15 deals with the election of the Executive Committee. Nominations for positions on that Committee are to be open from the June meeting of the Association and are to close at least 28 days prior to the Annual General Meeting held in September in the election year. Candidates for a position on the Executive Committee are to be nominated in writing supported by the names of three financial members who are to sign the nomination form. Candidates for election to the Executive Committee are required to have been financial members of the Association for at least one year prior to the date of the election and are to have attended at least 50 per cent of the general meetings of members in that time. The rule also provides that, in the event of there being an insufficient number of candidates to fill the positions on the Executive Committee, candidates nominated shall be declared elected unopposed. This last part of the rule appears to contemplate at least (although it is not totally clear) that, where the number of nominations for the five Committee positions (other than the offices of President, Vice-President, Secretary, Assistant Secretary and Treasurer) are less than five in number, then those nominating will be elected unopposed: undoubtedly the rule was designed to permit any candidate to be declared elected unopposed when there was no other nomination for a single position or fewer nominations than the number of positions to be filled. 33 A nice question arises concerning the practice adopted by the Association of filling vacancies by nomination from the floor from those attending the Annual General Meeting when the results of the election is declared by the Returning Officer. It may well be that those so nominated are required to be dealt with as casual vacancies although the Casual Vacancy rule refers to those vacancies occurring prior to the annual elections. Where there are fewer nominations than positions such as Mr Edwards' position as Vice-President, that is not a vacancy which arose prior to the annual election: he held that position up until the declaration of the 2003 election. In an earlier inquiry into an election in the Association conducted by Macken J [see (1989) 29 IR 1999] his Honour observed that the rules would allow a casual vacancy to have been filled both prior to and after the annual general meeting. His Honour did not suggest that a vacancy or a casual vacancy could be filled at the Annual General Meeting as part of the triennial elections but that issue may not have arisen for decision. The prudent course might be to treat such vacancies as casual vacancies with the nominees from the Annual General Meeting being endorsed by the Executive Committee until the provisions of s 242 can be fully observed. This has not been the practice of the Association and while there is convenience in the approach adopted over the years, especially in circumstances where there is difficulty in filling positions on their Executive Committee, the rules are not clear as to the course to be followed. I will, however, return to this issue in dealing with the orders that should be made as a result of the findings made in the inquiry. A defect in a nomination 34 There is nothing in the rules of the Association that requires the Returning Officer to notify a candidate for office that there is a defect in the nomination, such as unfinanciality, and to give the candidate an opportunity to rectify the defect. The rules, however, are not the only consideration. Section 249 of the Industrial Relations Act 1996 provides that the Regulations may make provision for and with respect to the election of officers of State organisations. Clause 31(2) of the Industrial Relations (General) Regulation 2001 provides that the provisions of s 442 - 451 of the 1991 Act (and the Regulations under those provisions) apply to a State organisation as Regulations made under s 249 of the 1996 Act. 35 The Industrial Relations Regulation 1992 made under the Industrial Relations Act 1991 in Part 4 deals with provisions relating to elections of officers of organisations. Clause 36 contains provisions relating to nominations. Sub-clause 3 provides that, if the Returning Officer is of the opinion that there is an anomaly in a nomination, the Returning Officer must, as soon as practicable after receiving the nomination, cause written notice of that fact to be given to the candidate. Under sub-clause 5, a nomination and any rectification of an anomaly in the nomination is to be received by the Returning Officer before the time and date fixed for the close of nominations otherwise the Returning Officer must reject the nomination. There does not appear to be any relevant definition of an anomaly but there is every reason for this clause to be treated as providing an opportunity, similar to that available in federally registered organisations, to rectify any defect in a nomination. Clearly enough, unfinaciality of a candidate or unfinanciality of a person nominating the candidate is a defect or anomaly which is capable of being rectified depending on the time the nomination was lodged and how soon thereafter the nominations close. 36 Applying these provisions, an opportunity should have been given to Mr Edwards to rectify his unfinanciality before the close of nominations. Mr Edwards was entitled to pursue his nomination for President and Secretary of the Association if he had been able to make himself financial before the close of nominations. Further, Mr Edwards was entitled to be given the opportunity to make himself financial so as to nominate for the position of Vice-President from the floor of the Annual General Meeting if that was in fact an election to be conducted as a casual vacancy by the Executive Committee. As a casual vacancy position however, it may not be covered by this inquiry which is confined to the September 2003 triennial election. It is significant that Mr Edwards did not pursue his entitlement to nominate for these positions in the triennial elections but was content to confine the debate to his eligibility to be a member of the Association and to be elected to the position of Vice-President. What orders should be made? Having decided the only issue raised by the parties appearing in the inquiry, namely the eligibility of Mr Edwards to remain a member of the Association and stand for office, I now turn to consider what orders, if any, are appropriate. The application for enquiry filed by Mr Dennett related to the September 2003 election for officers in the Association. Mr Dennett raised only one issue of irregularity, namely Mr Edwards' ineligibility to remain a member of the Association because of his status as an employer. Mr Edwards took up that issue and that is the only matter addressed during the hearing. Although, as I have noted earlier, the Court is not confined to the matters raised in the application for inquiry, in a practical sense, bearing in mind that the parties have represented themselves, it seems appropriate to confine this inquiry within those parameters even though there was in the evidence a potential to address a number of other issues. Assuming that Mr Edwards was elected at the 2003 elections the evidence demonstrates no irregularity in his election to the position of Vice-President. 37 I have earlier set out the rules of the Association dealing with the election process. Those rules provide for a postal ballot and the declaration of the result of the election at the September Annual General Meeting of the Association. At that meeting there was no prior nomination for the position of Vice-President and a number of other offices were left unfilled. The Association's usual method of filling those vacancies by nomination from the floor of the Annual General Meeting has no basis in the rules but it would appear that that method is used and implicitly accepted by the Executive Committee as the means by which a vacancy is filled when fewer nominations are received than positions vacant. On this approach Mr Edwards' election to the position of Vice-President did not take place as part of the annual elections but took place as part of the filling of a casual vacancy which was required to be filled in accordance with the provisions of s 242 of the Act. The application filed by Mr Dennett is therefore deficient as it does not encompass an election for the filling of a casual vacancy. The appropriate course, in these circumstances, is to terminate the inquiry. In coming to this decision, however, I have addressed the main question raised by the parties and have ruled upon it. In that way the Association may proceed on an understanding of the present operation of its Constitution rule and the capacity of Mr Edwards to remain a member and nominate for office in the Association. 38 At the re-convened hearing I drew attention to the technical nature of an election inquiry and the capacity for an inquiry to range well beyond the issues initially raised in the application. The evidence demonstrated a variety of practices, including the filling of the most senior offices of the Association, which did not appear to be in accord with the provisions of the rules. The Association's purported waiving of membership fees for those on the Executive Committee and the filling of vacancies for which no nomination was received at the Annual General Meeting by means of nomination from the floor of the meeting has no basis in the rules. There is no reason why a variety of these practices could not be properly dealt with by the rules and I have urged the Association to seek some assistance in re-drawing the rules so that those practices are given validity and in order for the rules of the Association to reflect appropriate processes for a small organisation struggling to attract sufficient members to participate in the management of its affairs. It is an unfortunate by-product of an election inquiry that the rules of a registered Association are subjected to close scrutiny and not infrequently reveal approaches and practices that otherwise have no basis in those rules. It would be a pity for an organisation of this size to be drawn into highly technical and potentially expensive proceedings because its rules do not adequately reflect the way in which the organisation is most appropriately governed given its current membership and financial circumstances. ORDER 39 In view of the findings I have made the Court makes the following Order: The inquiry into the September 2003 election of officers to the Executive Committee of the Real Estate Association of New South Wales is terminated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.