Cook, Robert Arthur & Ors v Crawford, George Robert & Ors [1981] FCA 15

Federal Court of Australia|1981-03-04|Before: Bruce J, Messrs J, Evatt J

(2) Liberty 1s reserved to amy varty to apply on fourteen days notice to the other parties énd to the Court.

AND IN THE MATTER of an application under Section 141 of the said Act

ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE

TN THE MATTER of an application pursyant to Section 141 of the said Act

AND: R.A. COOK, J.S. ARDAY, RRIAN J. PALMER, C.L.H. HASTWELL, J. WORRALL, P.J. MOODY, N.W. CONNOLLY, D. HICKEY, BRUCE J. PALMER and _ R.O. 'REILLY

IN THE MATTER of the Conciliation and Arbitration Act 1904

IN THE MATTER of an application pursuant to Section 171C of the said Act

BETWEEN: THE PLUMBERS AND GASFITTERS EMPLOYFES' UNION OF AUSTRALIA, G. CRAWFORD, G.L. SMITH, R. FAIRWEATHER, R. HEVEY, T. BOURKE _ and

S .MUTTON Applicants ANP: ROBERT ARTHUR COOK Respondent 4 March 1981 EVATT J.

On 1 and 2 May 1979 certain members of the Federal Executive (the Executive) of the Plumbers and Gasfitters Employees' Union of Australia(the organization), an oraganization registered under the Conciliation and Arbitration

Act 1904 (the Act), heard charges laid by Ronald Ivor

-3- Masterson, a member of the organization against five other members, namely; Ulich Colin Bignel], Harold Shooter, Kenneth

Lewis Tyler, Royce Lawrence Cummins and Gregory Laurence

On 2 May 1979 the Executive found Mr Bignell guilty of the first of three charges laid against him and each of the other four members guilty as charged. In all cases it imposed a penalty of expulsion from the organization and dismissal from the respective office or offices held by them within the

At that time Mr Bignell held himself out as being the holder of the following offices, namely; (a) Branch Secretary of the Sydney Branch of the organization having been elected to that office for a period of six years in July 1977; (b) Sydney Branch delegate to Federal Council having been elected to that office in 1977 ana (c) a member of the Federal Executive having been elected to that office in 1977 by and

Mr Shooter then held himself out as being the holder of the office of Assistant Secretary/Organizer of the Sydney Branch of the oraanization having heen elected te that office

"Messrs Tyler, Cummins and Waters then held themselves

-4- out as being full time organizers of the Sydney Branch of the organization having been elected to those offices in 1977 for a period of 6 years. In addition Mr Tyler held himself out as a Sydney Branch delegate to the Federal Council of the

organization having been elected to that office in 1977.

In May 1979 there was registered under the New South Wales Trade Union Act 1881 and the Industrial Arbitration Act 1940 a union with the name of The New South Wales Plumbers and Gasfitters Employees' Union (the State union). The said five members of the Sydney Branch of the organization were then and still are members of the State Union holding offices in that

union similar to the respective offices held by them in the

The charges against the five members were laid on 30 March 1979 pursuant to r.13(6) of the then certified rules of the organization by Mr Masterson who was then and had been for some years the secretary of the Newcastle Branch of the

Any member shall have the right to lay a charce against any member or officer direct to the Ceneral Secretary and/or President. Such charge to be dealt with by the Federal Executive under the provisions of Rule 35. "

member or officer lodged pursuant to Rule 13(4) or Rule 51(3);

(b)to hear and determine charges made against any member direct to the Secretary pursuant to Rule 13;

(d) for the purposes of Sub-Rules (a) and (b) hereof the Federal Fxecutive shall have power to (i) pending the investigation of the

charges or complaints to suspend any officer from performing all or any of his duties for a period not exceeding three months; (i2) to impose a fine not exceeding $200; (iii) to dismiss from office any officer found guilty of misappropriation of the funds of the Union or gross misbehaviour or gross neglect of duty or who has ceased according to the Rules to be eligible to hold the Office; (iv) to expel any member. "

The letters to the General Secretary of the organization in which Mr Masterson laid charges against the five members were each dated 30 March 1979. Each of the four letters relating to Messrs Shooter, Tyler, Cummins and Waters was in identical terms except for the particulars of the names and places of employment of the members of the Newcastle Branch who were allegedly persuaded, encouraged and aided to resign from membership of the organization. The Letter

concerning Mr Shooter (omitting formal parts) was as follovs:

I, Ronald Ivor Masterson of 2 Speers Street, Speers Point, N.S.W. being a member of the Plumbers and Gasfitters Employees' Union of Australia and Secretary of its Newcastle Branch hereby lay charges pursuant to Rule 13(6) against H. Shooter a member of our Union and Assistant Secretary of its Sydney Branch that being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he has actively persuaded, encouraged and aided members of the Newcastle Branch of our Union to resign from membership of our Union.

The grounds upon which I lay these charges against H. Shooter are that between the 23rd February, 1979 and 29th March, 1979 he has actively persuaded, encouraged and aided within the area of the Newcastle Branch as defined in Rule 47 the following members of the Newcastle Branch: (14 names were set out) employed by the Royal Newcastle Hospital (Health Commission) to resign from membership of our Union.

As H. Shooter's actions are of the utmost importance I ask that the Federal Executive deal with them as a matter of urgency and that H. Shooter be summoned to show cause why he should not be dismissed from the office of Assistant-Secretary of the Sydney Branch or otherwise dealt with pursuant to Rule 35(d) and why he should not be expelled from membership of our Union pursuant thereto.

(sgd) R. MASTERSON. Mr Masterson's letter (omitting formal parts) to the

General-Secretary concerning Mr Bignell was as follows:

I, Ronald Ivor Masterson of 2 Speers Street, Speers Point, N.S.W. beilnag a member of the Plumbers & Gasfitters Employees' Union of Australia and Secretary of its Newcastle Branch hereby lay charges pursuant to Rule

13(6) against U.C. Bignell a member of our Union and Branch Secretary of the Sydney Branch that:

A. Being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he ordered and directed H. Shooter, R. Cummins, K. Tyler and G. Waters being officers of the Branch under his direction and control to actively persuade, encourage and aid members of the Newcastle Branch of our Union to resign from Membership of our Union and he has approved and endorsed their actions in doing so.

The grounds upon which I lay these charges against U.C. Bignell are that between 23rd February, 1979 and 29th March, 1979 he

has so ordered and directed the said officers and has approved and endorsed their action in carrying out those orders and directions.

B. Being Branch Secretary of the Sydney Branch of our Union he is guilty of gross neglect of duty in that he has failed to forward to Head Office the Statement he is required to send pursuant to Rule 42(8) formerly numbered Rule 42(6) in respect of the financial year ended 31st March, 1978.

Cc. Being Branch Secretary of the Sydney Branch of our Union he is guilty of gross neglect of duty in that he has failed to forward to Head Office the sum he is required to send pursuant to Rule 42(8) formerly numbered 42(6) for the financial pericd ended the 3lst March, 1978.

As these matters are of the utmost importance I ask that the Federal Executive deal with them as a matter of urgency and that U.C. Pignell be summoned to show cause why he should not be dismissed from the office of Secretary of the Sydney Branch or otherwise dealt with pursuant to Rule 35(d) and why he shouid not be expelled from membership of our Union pursuant thereto.

(sgd) R. MASTEPSON" The relevant parts of r.42(2) referred to in

maragraph C of the letter addressed to Mr Pignall reads: "each

~8- Branch Secretary shall within 8 weeks of the close of each financial period forward Head Office a duly audited and signed statement for such financial period; together with the amount prescribed in sub-r.(6)". Sub-rule (6) deals with capitation fees, being a percentage of total receipts of branch members

On 3 April 1979 the General Secretary in accordance with the rules of the organization conducted a ballot of the members of the Executive seeking answers to proposals that an Executive meeting be held on 1 May 1979 to hear and determine the charges and that the General Secretary be directed to summon the said five members to show cause why each of them should not be dismissed from office or otherwise dealt with pursuant to r.35(d) and why each of them should not be expelled from membership of the organization pursuant thereto. (see rules 35(4) and (5), 36 and 23(3)). Such proposals were

Accordingly on 10 April 1972 the General Secretary wrote to each of the five members in identical terms. The

-9- full time paid officials of Sydney Branch, including yourself. A copy of the charges laid against you is attached.

I have now been directed by the Federal Executive to summon you, H. Shooter, to a meeting of the Federal Executive commencing 11.00 a.m., on Tuesday, lst May, 1979, in the Oriental Room, Carlton Pex Hotel, No.56 Castlereagh Street, Sydney, New South Wales, to show cause why you should not be dismissed from office or otherwise dealt with pursuant to Rule 35(d) and why you should not

be expelled from membership of the Union pursuant thereto.

You will be given the fullest opportunity to present your case and may bring any member of the Union as a witness.

These letters with the respective charges attached were forwarded to the home addresses of all the officers other than Mr Waters by certified mail on 10 April 1979 and copies thereof in separate envelopes addressed to each member were

hand delivered to the office of the Sydney Branch of the

By rule to show cause granted on 31 May 1979 jin matter N.S.W. 19 of 1979 the claimant Robert Arthur Cook, a member of the organization and the Chairman of its Sydney Pranch, sought orders pursuant to s.14l1 of the Act that the resrondents G. Crawford, G.L. Smith, Ss. Mutton, Re Fairweather, R. Hevey, T. Bourke and R. Masterson being rercers cf the Federal Fxrecutive perform and observe the rules

of the organization by treating as null and void resolutions

cf£ the [Fxecutive adopted on 2 May 1979 purrorting to expel

-10- from membership of the organization the five named members of the Sydney Branch and dismissing those five members from their respective offices and further that the said respondents recognise the said five members as the holders of their respective offices on grounds that r.13(6) and r.36(10)(d) of the rules of the organization were invalid and on the further ground that each of the five members had been denied natural

justice by members of the Executive who heard the charges.

The affidavit of Mr Cook sworn 31 May 1979 and filed in support of the said order nis: alleged (1) that the procedural steps provided for in the rule amending rule of the rules of the organization had not been complied with prior to the adoption by the rule-making body, the Federal Council, of rr.13(6) and 35(10)(d): that the sub-rules providing for such steps were mandatory and the failure to observe them effectively invalidated rr.13(6) aré 35(10)(d): (2) that r.35(10)(d)(1v) was contrary to s.140{1)(a) of the Act, being contrary to the provisions of s.144 ard that such sub-rule was also contrary to s.140(1)(c): (3) that the Fxecutive that dealt with the five applicants was invalidly constituted because its members had been electec by and from a Federal Council of the organization which itself was invalidly constituted under r.21 as that rule rrovided for a Council that was "grossly undemocratic ans unreflective of the membership" of the oraqanization. Acceréingly it was claimed

that the rule constituting the Council {r.21{1)) and the rule

-11- constituting the Federal Executive (r.35(1)) were contrary to $.140(1)(c) of the Act: and (4) that the charges laid

purported to be laid pursuant to r.35({d) and that no such rule

Further, particulars of the aJlegation that the five applicants were denied natural justice were given. Such particulars alleged that the claimants had not been given adequate particulars of the charges laid against them, that they had been denied an adjournment of the hearing of the

charges when requested; that the Executive or some of its members were biased against them or a]Jternatively that there were reasonable grounds for suspicion of bias; that the evidence before the tribunal was such that no reascnable tribunal acting honestly could find the charges to be proved and further that no reasonable tribunal acting honestly could find that such charges or the evidence in support of those charges constituted gross misbehaviour or gross neglect of duty such as would justify dismissal frem office within $.133(1)(f£) of the Act or within the purported rules of the

The said rule to show cause was made returnable for directions hearira on 11 June 1979 when Mr Ccok and the first respondert Mr cC. Crawford, General Secretary cf the

orgaénizaticn, were each represented by Counsel. Certain

directions setting out a tinetable for the filire of points cf

claim and points of defence, mutual discovery and interrogatories were given so that Mr Cook had to file any affidavit in reply on or before 31 July 1979. Accordingly a date early in August for the hearing of the matter could have been granted but at the request of Counsel for Mr Cook 3 September 1979 was set for the hearing of the matter. Liberty

was granted to all parties to apply to the Court for further

On 27 June 1979 in matter V.23 of 1979 Mr Crawford was granted a rule to show cause pursuant to s.141 of the Act calling upon certain respondents including Mr Cook, the first applicant in matter N.S.W. 19 of 1979, and nine other named respondents (being the holders of various offices in the Sydney Branch of the organization other than the five members referred to above) to show cause why certain orders should not be made giving directions to those respondents to perform and observe the rules of the organization by (a) constituting a meeting of the Committee of Management of the Sydney Branch of the organization and for that meeting to appoint a member of the Branch eligible to nominate for the office of Branch Secretary in accordance with the rules to carry out the functiors of the office of Branch Secretary; (b) paying er causing to be paid into the Head Office of the organization Branch contributions for the financial period ending 31 March 1978 anc 31 March 1979; (c) ensuring that the person avroirte?

to carry out the functions of Brench Secretary of the Sydnev

Branch ccorpiy with the provisions of r.42 of the orcanization by forwarding a dviv audited and signed statement for the saie two financial perices and (d) making available to a ncninated chartered accountext all books of account etc. of the Branch for the rerrose cf enabling the same to be audited in

accordance with é& particular resolution of the Federal

The retcrm cate shown in such rule was 16 Culy 1279

which date was steted to be the date on which directiors would

be given ard a Gaze set for the hearing of the matter.

(i) that such proposals had been validly raised before the 1978 Federal Council pursuant to an express general power in the Federal Council to make or amend the rules of the organization in accordance with r.27(5) as certified by the

(ii) alternatively, the respondents claimed that if the Court determined that the 1978 r.27(5) was invalid or that such sub-rule did not give an express general power to the Council to make or amend rules then the adoption by the 1978 Council of both rr.13(6) and 35(10)(d) resulted from proposals set out in a document referred to as document R. Such proposals, it was claimed, were the result of the redrafting and renumbering of certain rules which had been certified following the 1975 and 1977 Federal Council meetings so as to incorporate in such redrafted rules the substance of such earlier certified rules left unaffected by the substance of amendments validly proposed by branches in 1978 for consideration of the 1978 Federal Council together with the

Such redrafted and renumbered rules had been prepared as proposed amendments to the rules to be considered by the 1978 Federal Council meeting and incorporated in document R. The proposals in such document, copies of which were made available to Federal Council members present at that meeting,

were then fully explained to those members by the Solicutcr

for the organization. and (11i) that in any event the adoption of such amendments by the 1978 Council was valid pursuant to

(i) Respondents' claim that proposals to amend rr.13(6) and

35(10)({d) made under an express general power giver to Council by r.27(5)

rule amendment had been validly adopted by the 1978 Council as the procedural steps provided for in the rule amending rule (r.28) considered in Rceots -v- Mutton & Ors (1978) 32 F.L.R. 15 for placing proposed rule amendments before the Federal Council had not been complied with. In that case the Court was considering r.28 as certified during the period

L. The Pules of the Union shall not be amended except on a resolution carried by a majority of the Council.

Any member desiring to submit to the Council anv proposal to amend the Pules must first submit such proposal to the meeting of his Brénch specially convened for the purpose.
If such proposal be approved by a rajority of the ~embers fpresent at such meeting it shall ce forwarded to the Head Office for submissicn to the Council.

The Ceneral Secretery shall precare ar agenda of any sucn vropnosals ara@ forvard cop1res of same to all 2ranches, not lees than

six (6) weeks prior to the Council meetings to which such proposals are submitted.

The Council may at any time make or amend any Rules so that the Rules of the Union may comply with the requirements of the

Commonwealth Conciliation and Arbitration Act, or any similar State Act."

The Court in that case held that on its proper construction r.28 as set out above conferred upon the Federal Council an implied general power to amend the rules in accordance with the procedural requirements prescribed by that

rule and that such procedural requirements were to be

But r.28 had itself been amended before 8 Auaust 1978, the date of the commencement of the 1978 Federal Council Meeting, by deleting from sub-r.(5) all words after "Rules" where first appearing in the sub-rule and re-numbering the rule r.27. Rule 27(5) then read: "The Council may at any time make or amend any Rules".("the 1978 r.27(5)"). This amenéement was adopted by the Federal Council meeting held on 19~23

September 1977 and was certified by the Registrar on 1

When the fact that the old r.28(5) had been so amended was appreciated by the applicants leave was granted to

them to fille and serve additioral points of claim. Such x

of claim alleged that the amendment to old r.28 as certi fie

on 1 February 1978 was invalid because (a) there was neo

"validly cenvened specially summoned meeting" of any branch

+29- - which proposed such amendment and accordingly there was no valid proposal in this regard from any branch of the organization before the 1977 Federal Council meeting. (It is to be noted that the description of the meeting referred to in the points of claim and quoted above is different to that referred to in sub-r.(2) of the old r.28.); (b) the 1977 Federal Council was invalidly constituted and accordingly could not validly adopt such amendment; and (c) if it was found that such Council was validly constituted and that the 1978 r.27(5) had been validly adopted by that Council then

(a) Applicants' claim that proposed amendment to r.28(5) not

The respondents led evidence, which is accepted, that the proposal to amend r.28(5) as adopted by the 1977 Federal Council was placed on the agenda of rule amendment proposals prepared by the General Secretary for consideration by that Council and that the agenda had been forwarded to all branches in accordance with the then r.28(4); that the proposal had been forwarded in accordance with r.28(3) to the Head Office for submission to the Council after it had been approved ky @ majority of the members of the South Australian Pranch of the organization present at a meeting held by that brarch on °5 June 1977; that notice of the prcposal to amend r.28{5) Fy

Geleting all the words after the words "The Council may at any

~30- time make or amend any Rules" was given to the members of the South Australian Branch in a bulletin forwarded to them by Mr Fairweather, the then Secretary of the Branch, on 10 June 1977; that such bulletin on its front page clearly showed under a heading "Annual General Meeting" the time, place and date of such meeting as Wednesday, June 15, 1977, Union Office, Trades Hall, Adelaide, 7.30 p.m. and that clearly listed amongst the business to be dealt with was "Proposed Rule Changes"; and that on the second page of the bulletin the proposed rule amendments including the amendment to

Rule 60 of the then certified rules of the organization made provision for branch meetings. Sub-r.(3) of that rule provided that the Annual Meetings for the reception of the balance sheet and financial statement shall be held on the last meeting night of June each year. Sub-r.(4) provided that notice of all Special or General Summoned Meetings shall be given by summon notice forwarded at least two days prior to the time of the meeting to each member to the address last

I am satisfied on the evidence that at least two days

notice of the particular meeting held on 15 June 1977 wa

given to the members of that branch. Further I am satisfied that the particular meeting was a meeting of the South

Australian Branch of the organization specially convened for

the purpose of considering the proposal to accordingly amend r.28(5) within the meaning of the then r.28(2) especially when one considers the varying descriptions of meetings referred to in the rules of this organization at that time. (cf. the then rr.27, 44(1)(b), 47(2), 48(1)(b) and (c), 51(1)(v111), 60(4) and (5) and 65(4)). The then sub-r.28(2) did not, in my view, restrict the purpose of the meeting referred to in the sub-rule to one particular purpose and no other. A meeting 1s specially convened for any purpose set forth in the notice convening it. The sub-rule does not provide that the meeting which is to consider proposals for rule amendments cen rot also be specially convened for some other purpose, for example, for the reception of the balance sheet and financial statement of the branch. The fact that the meetirg was entitled in the notice summoning the meeting, "Annual General Meeting", does not mean that it was not a meeting specially convened for certain purposes including the purpose of considering rule amendments. In this particular case the notice had clearly indicated the nature and intent of the business to be considered at the meeting and in regard to the Proresed rule amendments clearly set out such proepesals in

Accordingly in my opinion the procedural stens Provided for in the then r.?S were complied with ard the relevant proposal to amend r.28 was validly before the 19

Fecgeral Council. The certification of such amendment anc tre

-32- re-numbering of r.28 to r.27 by the Registrar pursuant to

s.139(4) on 1 February 1978 meant that such rule then became

Having so determined that the proposal to amend the old r.28(5) was validly before the 1977 Federal Council then it follows that no invalidity within the meaning of s.171C of the Act occurred in the proposal to make such amendment and it becomes unnecessary to make any determination in this regard under that section in matter V. 24 of 1979. But should it be determined that the meeting of the South Australian Branch of the organization held on 15 June 1977 was not a meeting specially convened for the purpose of considering the proposal to so amend the then r.28(5) prior to forwarding same, if approved, to the 1977 Federal Council meeting with the result that an invalidity within the meaning of s.171C(1) occurred in the making of the amendment to r.28(5) then, assuming that the 1978 r.27(5) was not contrary to s.140 of the Act, I would have been satisfied on the evidence that, in the exercise of the Court's discretion, an order should have been made under s.171¢C(2)(a) validating such amendment. The evidence, in ny view, shows that it is clear that no member of the South Australian Branch would have been misled as to tke intention that rule amendments, including the proposed amendment to the

then r.28(5), were to be discussed at the particular meetind.

The respondents further claimed that the act of the

-33- 1977 Federal Council in adopting the amendment to old r.28 by deleting those words in sub-r.(5) referred to above and the renumbering of the rule to r.27 was in any event valid by and under the provisions of s.171B of the Act. Fven if this be so, (and I express no opinion in this regard) then the

respondents can not rely upon that section in this proceeding.

Section 171B is in Part IX A of the Act which was inserted in 1974. The section provides that, subject to the section, "acts" done in good faith by a collective body such as the Federal Council of the organization or by persons holding office therein shall be valid notwithstanding any invalidity afterwards discovered in the election of the collective body or any member thereof or the election of the person purporting to hold office or in the making or alteration of a rule of the organization. However sub-s.(6) of s.171B provides that nothing in the section validates the expulsion of or the imposition of a penalty on a member of an organization which would not have been valid if the section had not been enacted. The Court has held that the removal or dismissal of an officer on grounds going to his conduct or for alleged breaches of rules and of his duties to the organization is clearly the imposition of a "penalty" ard that the use of the word "member" in sub-s.(6) does rot mean that the protection given by the suk-sectior does not extend to an officer of the organization or a branch thereof assuminc that

the officer is a member of *he organization (Lean and Pavis

-34- -v- Harradine & Ors (1975) 6 A.L.R. 507 @ 541-2). Consequently it is unnecessary for the Court to express a view whether the proposing and adoption of a rule amendment by a rule making body of an organization is an "act" within the meaning of s.171B of the Act (cf.Morris -v- Wood (1975) 8 A.L.R. 342 @ 344 and 346 regarding an "election" referred to

(b) Applicants' claim that 1977 Federal Council invalidly

The applicants' attack in this regard is based on the claim that the 1977 Federal Council as constituted by the then r.22 was "grossly undemocratic and unreflective of the membership" of the organization. That rule provided that the Council consist of two representatives from each State, excepting the State of New South Wales which was entitled to three representatives, two from the Sydney Branch and one from the Newcastle Branch. At that time the rules of the organization did not provide for any weighting of the votes of such delegates, the only relevant rule being the then sub-r.26(2) which provided that in the event of there being only one representative present at the Council Meeting frem

principles decided in McLeish v Kane & Ors (1978) 22 A.L.P.

~35- 547 (see also McLeish -v- Faure (1979) 25 A.L.R. 403; Luckman

-v- Australian Postal and Telecommunications Union (1978) 28

A.L.R. 393, Crealy -v- Commonwealth Bank Officers' Association

(1957) 1 F.L.R. 153, McKenzie -v- Administrative and Clerical

Officers' Association 5 F.L.R. 342, Scott -v- Rolfe (1979) 36

F.L.R. 249 and Sheriff & Ors -v-~ Townsend & Ors (1980) 30

It is clear from those decisions that the answer to the question whether a rule or the rules of an organization making provision for the number of delegates to its Federal or Mational controlling body contravene s.140(1) of the Act is dependent not simply upon the number of delegates each branch of the organization is entitled to have as recvresentatives on such body but is fundamentally a question whether the voting strength of such delegates at meetings of such a body fall

within the spectrum referred to in McLeish -v- Kere. As was

pointed out in that case, and repeated in the more recent cases referred to, the Court in determining whether a rule or the rules of an organization contravene the Act in this regard has to comsider whether there 1s a disparity Ytetween, on the one hand, the number of members attached to a particular branch expressed as a percentage of the total rembersnhip of the organization and, on the other, the voting strength of that branch expressed as a percentage of tke 'total voting strenath of members of the body entitled to vote. If such a

Gisvarity exists which is tco creat or too unme'en then it mav

-36- be said that the voting strength of particular branches may be outside the spectrum referred to in those cases and so render a particular rule or the rules of that organization invalid as

But the Court can only make such a determination where there is evidence of the total membership of the organization and of the branches making up the organization at the time when its is claimed that such disparity existed. In the present case there is no acceptable evidence before the Court as to the total membership and the number of members attached to the various branches of the organization in 1977.

In this regard the onus of proof rested on the applicants.

The only evidence before the Court as to what was termed "the precise figures as to the percentage membership" in the different branches of the organization is that for the year ended 30 June 1975. Those percentages are set out in para. 20 of the affidavit of the applicant Mr Bignell sworr 3 September 1979. Paragraph 19 of such affadavit states that "during the period of my association with the Union, the size

of the different branches of the union has not significantly

fluctuated. During most of this time the different branches of the union have c aimed the following approximate percentages of union mexbersbip". There is then set out a

table of the various bra shed with a percentage shcwn against

Mr Bignell gave oral evidence during a period extending in all over eight hearing days. He was cross-examined by Counsel representing Mr Masterson and by Senior and Junior Counsel representing other respondents in this matter. I am not prepared to accept any evidence that Mr Bignell gave which is not corroborated by independent documentary evidence. His prevarication in answering questions in cross-examination which he apparently believed might be damaging to his case together with his demeanour clearly demonstrated that it would be unsafe to accept his evidence unless it was corroborated by acceptable evidence. It was apparent that he was a man with above-average intelligence, who, on appreciating that his answers to a line of cross-examination were such that it was only a matter of time before it would be patently clear that answers that he ha@ given to obviously clear and unambiguous questions some hours or even days before could not be correct, would turn to the Bench, pause, give a pensive look and ask whether he had answered some nominated guestion in a certain way because he felt that if he had he must have then been confused either in his understanéing of the earlier question or ain his recollection of facts on which he had based his answer to that earlier aquesticn. This often repeated act, masterly performed, ard his general t r in the witress box together with certain contradictionsy of factval matters fron time to time have caused me to cohelude that I shoulé not

Mr Crawford, who was the General Secretary of the organization at all relevant times, was called to give oral evidence in the proceedings on at least two occasions. No questions were put to him in cross-examination by Counsel representing the applicants in this matter as to the

membership of the organization and its various branches at any

In my view the so called principle of the presumption of continuance does not apply, and indeed should not apply, in relation to the number of members belonging to an organization or its branches at any time subsequent to a certain period in relation to which evidence of such numbers is available which could reasonably be accepted, particularly where the period of

This then means that there was no acceptable evidence before the Court as to the actual membership of the various branches of the organization at the relevant time. Consequently the applicants have failed to prove the existence of an imbalance in the voting strength of the branches at the 1977 Federal Council which fell outside the spectrum referred

to and their claim that the 1977 Council was invalidly

Further, even if the approximate percerrace of urion

mempership as set out in para.19 of Mr Bignell's said

affidavit which show some imbalance in the voting strength of some of the branches were accepted such imbalance, in my view, would not, when considered with other relevant rules of the organization in force in 1977, fall outside the spectrum. As

was stated in McLeish -v- Faure @ 416, "the Court in its

reasons for judgment in McLeish -v~ Kane dealt in some detail

with the vexed questions concerning the spectrum over which rules dealing with the weighting of the voting power at meetings of branch delegates to or mwembers of federal bedies of organizations might validly range (and) the conditions under which a plebiscite of members might be sought on any matter together with rules generally providing for checks and balances." It is unnecessary to repeat those observations. The rules of the present organization have provided for a plebiscite during relevant times. Such rule has been the same for many years and certainly since 1975. (see 1975 r.28, renumbered r-.27 in 1976, renumbered r.26 in 1977) The plebiscite rule provides that in case where the decision of the Federal Council or the Federal Fxecutive 1s disagreed with by a majority of the members of any two branches in any two States, present at a meeting of the respective branches specially called for that purrose the qvestion shall be supmitted to a referendum of the wembers of the organization

ard the decision of those members at suck referendum shall

supersede the decision of the Council or the Erecutive. Purind

this period the branch rules have provided that a branch

ecretary (Chairman) shall corvene a special summoned meetira

~40- of the branch at the written request of any number of members required to constitute a guorum at such meeting. At all

relevant periods a maximum guorum at branch meetings was

Accordingly, the result of the combination of the plebiscite rule and branch rules making provision for the calling of branch meetings is that fifteen members in each of two States are able to requisition a special summoned meeting in each of those States to consider any decision of the Federal Council. If the decision is disagreed with by the majority of members attending each of the two branch meetings then there is an automatic referendum of the whole of the membership of the organization on that question. The result of such referendum is binding on the Federal Council. Consequently it is possible for sixteen members, eight in each of two States, to bring about a Situation where such a referendum be held on any decision of Federal Council (see rr.60 and 65 of 1976 and 1978 rules and r.60 of 1979 rules). Sucn control by members of the Federal Council was, in my view, a proper check to any imbalance in the voting strength of certain branches at Federal Council at that time(re

"Contrel"- see Boland & Aror. -v- Federated Liquor ané@ Allicd

Inéustries Employees Union of Australia, Sweeney J., jvdament 3 April 1979 (not yet reported) cited with approval by Fvatt

anc Yorthrop JJ. in Bolené & Ors -v- Munro & Ors, judament 23

general power to amend rules and, if so, was such sub-rule

I am satisfied that on its proper construction the 1978 r.27(5) conferred an express general power to make or amend the rules of the organization on the Council. In my view it was the intention of the draftsman when omitting the words from the old r.28(5) which read: "so that the rules of the union may comply with the requirements of the Commonwealth Conciliation and Arbitration Act or any similar State Act" that the express power which had been clearly given to the Council to make or amend the rules in order to attain compliance with legislative requirements should be extended so

as to give the Council such express power in regard to rules

that"the first thing to be noted about the provisions of r.28 is that they do not, 1n express terms, confer upon the federal councl1l any general scwer to amend the rules. The provisicns of sub-cl.(l) of r.22 are, in terms, prohibitory: the rul2s shall not be amencec except on a resolution carried by a majority of the courcil. The following three sub-clauses cf

r.-22@ prescribe a serccedure desianed to lead un to the

-42- - consideration by the council of a proposed amendment to the rules. Sub-clause (5) of r.28 dispenses with the need to comply with that prescribed procedure and confers an express power to amend when, and only when, the proposed amendment to the rules is in order to attain compliance with legislative

The removal of the qualification 1n the old r.28(5) brought about a situation that the sub-rule dispensed with the need that the procedures prescribed earlier in r.27 be complied with where and when the Council itself determined that a rule amendment should be effected. Members could still, 1£ they so desired, submit proposals for rule amendments under and in accordance with sub-r.(2)}. In my opinion there is no vice in vesting in the body which exercises "the supreme control" of the organization (see r.22, 1976 rules renumbered r.21 ain 1978 rules) an express general power to amend the rules of the organization especially where all branches are entitled to be represented on such body and where the rules themselves provide readily available controls by the members of the apparent unfettered power in the Council to amend the rules. It has recently been stated by the Court that "it is difficult to think of any subject matter more important in the

affairs of an organization than its own legislative power".

(see Australian Transport Officers' Federation -v- The State NSp' ~

Public Services Federation, N.S.W. Vo.25 of 1989 - judament 13

February 1981 - not yet reported). But, 1n my view, such power

-43- may, if the certified rules so provide, be exercised by the governing body exercising the supreme control of an organization under an express general power to amend its rules if that body is subject to adequate and readily available controls by the members. Neither the Act nor the Regulations made thereunder specifically require that proposed amendments er additions to the rules of any organization be first submitted to branches for their consideration prior to such amendments or additions being raised by way of proposals at a meeting of its rule making body. Reference has been made to the rules providing for the control of the Federal Council of the organization by the members earlier in these reasons and

to the decision in Boland & Anor. -v- Federated Liouer and

Industries Employees Union of Australia (supra) in this

regard. Such rules, in my view, provide adequate control of both the Federal Council and the Federal Executive by the

It must be remembered that any proposal to amend rules that may be forwarded by a branch for consideration of the Federal Council does not have to be adopted by that body. The Council may if 1t so wishes adopt the substance of all or part of such proposal providing the overall substance in the full proposal is not thereby altered. Further, any amendment procedure carries with it an implied restriction that rules

that do not conform with the Act shall not be adopted bry the

rule making body. (see Morris-v- Federated Liaucor and Allie

Industries Employees Union of Australia (1978) 21 A.L.R. 425 @

434). Further, before any amendment becomes effective it must be certified by the Registrar pursuant to s.139(4) of the Act. The Registrar has power to refuse certification of any amendment to rules which, in his opinion, is contrary to the provisions of the Act or the Regulations or which has not been made in accordance with the procedures laid down by the rules. Even after an amendment to a rule is so certified a member has the right to challenge its validity 1n an application brought under s.140 or s.141 and the Court in such an application may make a declaration that such rule or part of such rule contravenes s.140(1). Such a declaration has the effect of rendering that rule void from the date of the order. (s.140(5G) and s.141(8A).). In such a case it is not the rule conferring an express general power to make and alter rules which is contrary to s.140(1) but only the invalid rule which the rule-making body has purported to make.

In all the circumstances I am of the view that the 1978 r.27(5) on its proper construction empowered the Federal Council cf the organization tc make or amend the rules of the organization without proposals for such amendments or alterations being first submitted by a member to his branch for consideration by that brarch and being dealt with in accordance with r.27(2), (3) end (4). Further, in my view, such sub-rule was then not ccntrary to the provisions of

s-140(1)(a) or (c) of the Act for the reasons expressed.

The respondents in this matter further claimed, that if it be determined that the Federal Council at its meeting held on 8-11 August 1978 did not have an express general power to amend the rules of the organization pursuant to r.27(5) then the proposals amending the rules which were adopted at that meeting were validly before the meeting in any event. Having determined that that Council did have an express general power to amend its rules it is unnecessary to make a determination on this aspect of the respondents' claim. However the matter having been fully argued it is considered that a view should be expressed concerning this claim especially in regard to the adoption of the amendments to

It is clear that at the time of the 1978 Council meeting the certified rules of the organization included amendments adopted by both the 1975 and 1977 Federal Councils. Other than the amendment to old r.28(5) by the 1977 Council which was certified on 1 February 1978, none of the rule amendments adopted by either the 1975 or the 1977 Federal Council have been challenged by the apnjJicants herein. Further, no claim was made by the applicants that the 1975 Council was invalidly constituted. As T read the peints of claim the applicants did challenge the constitution cf the

1977 Council which challenge has been determined against them

Further, it has to be remembered that the 1978 Pederal Council Meeting was a special meeting of Federal Council convened primarily to consider rule amendments

following the decision of the Court in Roots ~v- Mutton

(supra) on 21 March 1978. The Court in that case stated that "the rules (of the organization) appear to be in a somewhat unsatisfactory state and will inevitably present further difficulties of interpretation both to members and officers and, in event of dispute, to the Court. It is clearly desirable that steps be taken, aS soon as practicable to

After consultation between the President of the organization and the General-Secretary and on the advice of Mr Ryan, Solicitor of Ryan, Carisle, Needham and Thomas, solicitors for the organization a decision was taken by the Federal Executive in accordance with the then rules that a special Federal Council meeting be convened for 8 August 1978. Accordingly on 9 May 197€ all branch secretaries were advised by letter from the General-Secretary of the history leading up to the purported suspension of Mr Roots on l November 1977,

the decision of the Court in Roots -v- Mutton and that a

special meeting of Council was to be beld on 8 August 1378 to consider rule amendments including amendments to the then r.36

dealing with the powers of the Federal Fxecutive. Branches

were requested "to hold special summoned meetings in accordance with the rules for the purpose of enabling any member through his branch to submit proposals to alter any of the rules" of the organization. The letter went on to point out that the holding of such branch meetings "will give every branch and all members of the union the opportunity to consider (for themselves) the unions rules and to make their recommendations for changes to them", The General Secretary an the last paragraph of his letter went on to say "I enclose for the use of the branch a copy of the rules of the union certified by the Industrial Registrar on 16 March 1978 and

also a copy of the decision of the Federal Court in Root's

Thereafter on 29 May 1978 at a special summoned General Meeting of the Melbourne Branch of the organization resolutions were passed adopting proposals for amendments to the rules including r.29 dealing with the dismissal of any officer or member of the Federal Council, r.21(3)(e) dealing with the power of the Council to remove any officer at any time in accordance with the rules and r.51 dealing with the removal from office of any branch officer. Such resolutions were forwarded to Head Office in accordance with r.27(3) and were included in the agenda for the meeting of Federal Council

At a glance

Court

Decision date

Before

Source

Judgment (776 paragraphs)

increasing such rate was invalid as the 1978 Council was

Cited By (1)