Egan, Barry Thomas v Maher, John Bernard & Ors [1978] FCA 39

Federal Court of Australia|1978-06-08|Before: Northrop JJ, Edward J, Kenneth J, Raymond J, Fdward J, Raymowd J, Smithers J

Industrial Law - interpretation of rules of organisetion ~ implied res1rpnation of office - doctrine of election,

Federal Court of Austrelia (Cons cowoniiol Provi 310s)

B. No. 295 of 1975 Coram: Smithers, Evatt and Northrop JJ, 8 June 1978

R.W. BRIAN HARRADING, KENNETH J. BENNETT, MORRIS REED, LEO WALSH, JOHN DALE, H. LESLIE KELLY, RAYMOND J. McCART, FRANK A. CURRIE, FJ. KEPPELL, K.G. ADDISON, J.L. McPHIE, JOHN M. BOAG and D.S. KILLICOAT

Respondents ORDER JUDGES MAKING ORDER: SMITHERS, EVATT and NORTHROP JJ. DATE OF ORDER: 8 December 1977 WHERE MADE: Melbourne.

That until a new election shall have been held for the office of National Assistant Secretary the respondent, Edward John Goldsworthy, cease to hold himself out as National Assistant Secretary of the Shop Distributive and Allied Employees Association and that the remaining respondents cease to recognise him as National Assistant Secretary of the Shop

OF_ AUSTRALIA formerly B. No. 295 of 1975 INDUSTRIAL DIVISION ) in the Australian Industrial Court

iN THE MATTER of the Conciliation and Arbitration Act 1904

AND: JAMES BERNARD KAIER, WALTER F, MAJOR, FDWARD J. GOLDSWORTHY, R.W. BRIAN HARRADINE, KENNETH J. PENWETT, MORRIS REED, LEQ WALSH,

JOUN DALE, H. LESLIE KELLY, RAYMOWD J. McCART, FRANK 4. CURRIE, F.J. KEPPEL, K.G. ADDISON, J.L. McPHIE, JOuN |, BOAG and D.S. KILLICOAT

In this case the Court made orders on 8th December 1977 that specified officers of the Shop Distributors and Allied Employees' Association should cease to recognise the respondent Edward Goldsworthy as the National Assistant Secretary of that organisation and that the respondent Edward Goldsworthy ccasc to hold himself out as the Naticn2] Assistant Secretary of cine organisation. At the time of the making of these orders I

intimated that I was unable to concur therein. The basis upon

which the orders were made was the office of National Assistant Secretary theretofore held by Mr. Goldsworthy was terminated by

There is no Federal rule of the organisation containing express provisions on the subject of resignation from office by 4 national officer. Rule 14 as in force at the relevant date was

shall mean only those persons holding the following positions:- National President, National Vice- President, National Secrelary-Treasurer and

be elected by and from tne National Council and, if

delegate from any Branch whilst holding their respective positions, At the expiration of their term of office they shall be eligible for re-election.

The term shall not include any person holding office of Branch only.

No person shall hold at any one time more than one of the offices mentioned in this Rule."

"In the event of any vacancy occurring on the National Executive, National Council shall arooint another member from amongst the members of National Council to f2111 the vacancy. Any member so aorpointed shall hold office for the remaining portion of the retiring member's term of office."

At the biennial meeting of the National Council held in October 1972, Mr. Egan was elected to the office of National

Secretary~Treasurer and Mr. Goldsworthy was elected to the office

of National Assistant Secretary. Each was to hold office until

the biennial meeting of National Council to be held in October 1978 ard each was ex officio a member of the National Executive.

At its biennial meeting 1n October 1974, the National Council purported to remove Mr. Egan from his office of National Secretary- Treasurer. Subsequently at the same meeting National Council

registered office of the Association be establsihced

Getermined by National Council." Following the passing of these motions Mr. Goldsworthy, although not expressly resigning his office of National Assistant Secretary, purported to hold the office of Nationel Secretary- Treasurer. He performed the duties and exercised the powers imposed and conferred by the Federal Rules on the holder of that office. He held himself out as and acted as if he was the National Secretary-Treasurer of the S.D.A. At no time did he purport to exercise these powers pursuant to the power con- -

ferred on the National Assistant Secretary by Rule 19(b)

"419. DUTIES AND RIGHTS OF NATIONAL ASSISTANT SKCRBETARY

The duties of the National Assistant Secretary shall be to:-

the National Secretary-Treasurer." Immediately prior to the passing of these motions, Mr. Goldsworthy received legal advice that Mr. Egan might be able to challenge successfully the validity of the motion purporting to remove him from office and in that event the appointment of Mr. Goldsworthy to the office would be invalid and therefore Mr. Goldsworthy should

not resign his existing office. /Mr. Goldsworthy formed the intention not to resign from his office of National Assistant Secretary but

after the passing of the motions he held himself out as holding

On 25th August 1975 in the matter of Egan v. Harradine

(1975) 25 FLR 336 the Australian Industrial Court ordered that the respondents therein should obey the rules of the organisation by recognising Mr, Egan as National Secretary-Treasurer. From the reasons of the Court it is apparent that these orders reflected a finding by it that a motion * of the National Council dismissing Egan fron/otfice of National Secretary-Treasurer was null and void

because it was carried in circumstances in which natural justice

had not been extended by the National Council to him. It follows that Egan was not removed from office and has at all times material continued to be the National Secretary - Treasurer of the organisation. It is a consequence of this that the recital in the motion of the National Council in October 1974 purporting to appoint Goldsworthy National Secretary-Treasurer that there was a casual vacancy in

the office of National Secretary-Treasurer was contrary to fact.

There was no casual vacancy and as a result the motion appoint-

ing Goldsworthy National Secretary-Treasurer could not and did not have any effect. He never did hold that office and in purporting to hold it he was erroueously claiming an office

The question is, however, whether by his actions he lost his office of National Assistant-Secretary. In the circumstances referred to above, that part of Rule 14 which provides that "no person shall hold at any one time more than one of the offices mentioned in this Rule" had no application in relation to Goidsworthy's occupancy of the office of National Assistant Secretary. At no time did he hold eny office other than the latter. Of course Goldsworthy purported

to take up the office of National Secretary-Treasurer and asserted that he held that office. But Rule 14 does not operate upon a situation in which a member having one office in the Branch mistakenly claims another. The situation might weil be different if the resolution appointing Mr. Goldsworthy to the office of National

Secretary-Treasurer had been valid. Thus in the/Iron Shin Costang Company Ltd. v. Blunt (1868) 3 LR Comm. Pleas 484 where the articles of a goint stock company provided that any director who should accept or hold any office under the company other than manager shculd thereupon cease to be a director, a person who held the office of Secretary of the company was elected as a director. It was held that the resolution appointing him a director "involved" his resig- - nation of the office of secretary. Eut 1t does not appeer that the

same result would have followed had the election and resolution been

Accoraiungly, Mr. Goldsworthy could lose his office of Nationel Assistant Secretary only if he resigned expressly

or impliediv. or if he vere denrived of the nosition bv operation of

Jaw. I do not think that on the facts disclosed an inference arose that Goldsworthy resigned from the position of Nationel Assistant Secretary. His conduct was compatible with an appreciation by him of the likelihood that Mr. Egan would challenge his appointment and an attitude on his part that his continued occupancy of the position of National Assistant

Knowing that his appointment as National Secretary- Treasurer might be challenged Goldsworthy did not resign at the time of or as a condition of that appointment. It was contended that although Goldsworthy had no intention of resigning his position of National Assistant Secretary unless at any rate, his appointment as National Secretary Treasurer was legally valid, nevertheless a resignation by him happened by operation of law.

It was contended that the conduct of Goldsworthy which was critical in causing this situation was that of purporting to act as

It is no doubt a sound view that an act perfermed by a person consistent only with a determination or election by him that he has given up some existing right or adopted a particular stand concerning his legal relations with another may operate, whatever his intention, to bind him to that determination or election. As soon as he performs acts or ommissions "justifiable only if he has made that determination or clection" then the law annexes to that conduct, the legal consequences of tht election disclosed by it, per Kitto J. in Tropical Trades Ltd, v. Gooran (1964)/C.L.R. 41 at 56. In that case, 1t was pointed out by

Kitto J, that the operation of the doctrine of elecvion does not

depend upon intention rather - "It is an effect which the law annexes to conduct which would be justifiable only if an siection had

been nade one way or the other", ((1964) 111 CLR 4,55).

I think it is difficult to apply those words to the situation in which Mr. Goldsworthy found himself. His only duty was to obey the rules of the organisation. His conduct could be ""Sustifiable" only if it was in accordance with that duty. As it turned out his purported occupancy of the position of National Secretary-Treasurer was contrary to the rules because his appointment was invalid. According to the rules therefore he never was National Secretary-Treasurer. It follows that his ostensible occupancy of the position was not legally justifiable at all. To my mind just as the validity of his occupancy of the posation of National Secretary~ Treasurer was to be determined by reference to the rules so was his

occupancy of the position of National Assistant Secretary.

The only "election" which Goldsworthy really made was to act, on the basis, that according to the rules, he had been appointed National Secretary-Treasurer, If the basis was sound then he was National Secretary-Treasurer and Rule 14 would operate. If not Rule 14 was not involved. The words of Kitto J. in Tropical Trades Ltd. v. Goonan (supra) were spoken in particular, in relation to cases of contract where the rights of the parties will vary accord- ing to their conduct. They are apt to describe the situation where one party to a legal transaction adopts one or two courses legally open to him, gains the benefit of that course and is thereafter bound thereby. The rights and duties of the parties are thereafter determined by reference to that conduct. But that does not happen where, whatever the conduct of the parties, 1t is the rules which govern the legal rights and liabilities of the orgunisation aud its

members, not what they assert and not what offices they may wrongfully

The sentence quoted from the gudgment of Kitto J. assumes that the position taken up by the party electing 1s one which, on the basis according to which it 1s justifiable, is legally open to him. In this case the position taken up by Mr. Goldsworthy, namely that he was National Secretery - -Treasurer was never legally open to him. It was pointed out by Mason J. in Sargent v. ASL Development (1974) 131 C.L.R. 634,641. et seq that a person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights i.e. when he has the right to determine an estate or terminate a contract for breach of convenant or contract and the alternative right to insist on the continuation of the estate or performance of the contract. But in the events which had occurred Goldsworthy did not have alternative and inconsistent rights concerning the offices of National Secretary- - Treasurer and National Assistant Secretary of the orgenisation. He had no rights at all in relation to the office of Natzonal Secretary-

Support for this view may be found in a number or decisions of United States Courts. Thus Mr. Justice Holmes in delivering the opinion of the Supreme Court in Bierce v. Hutchins (1907) 205

U.S. 340 summarised the law relevant to this question as follows:-

"Election 1s simply what its name imports; a choice, shown by an overt act, between two 1nconsistent rights, either of which may be asserted at the will of the chooser alone...

The fact that a party, through mistake, attenpts to exercise a right to which he is not entitled, does not prevent his afterwards exercisiug one wnick he had and still has unless barred by the previous attempt." (205 U.S. 340, 346-3477)

Similarly in Doyle v. Hamilton Fish Co. (1916) 234 F.A7 where the Circuit Court of Appeals dismissed an appeal from a decision of Learned Hand J. it adopted in its entirety his Honour's judgment which contained the following statement :-

"As to the defence of an election, based upon the unsuccessful effort to disposess . the lessee upon allegations that there was no leuve it is enough to say that a party has an election only between existing not supposed rights. Bierce v. Hutchins 205 U.S. 340. The plaintiff could not destroy his rights under the lease by mistakenly following other supposed rights which turned out not to exist. That would be to put him, not to election, but to a correct estimate of his right under pain of forfeiture."| (234 P.47, 51)

See also Asher v. Pegg (1909) 123 N.W. 739 and American Jurisprudence {2nd Ed. 1966) volume 25 p.652

It 1s possible to contemplate that 1m the situation in issue action might have been taken to appoint some person to the position of National Secretary~Treasurer, Had this happened questions of estoppel might have arisen. But this did not happen, On /evidence, it is reasonable to infer that such action was not taken by the National Council because a significant portion of its members understood the basis upon which Goldsworthy was acting. His conduct was "justifiable" in law only if he were validly appointed National Secretary-Treasurer. But it is another question whether in the relevant sense it was justifiable only if he had also resigned from the position of National Assistant Secretary. I do not think it was. The claim by Goldsworthy to the position of National Secretary - Treasurer was justifiable, af at all not by reference to any resignation by him of has nosition

of his position of National Assistant Secretary. It was

justifiable or ctherwise by reference to the validity of his

appointment as National Secretary-Treasurer, His occupancy

of the office of National Assistant Secretary was something aliunde the justification of his claim to be National Secretary~ Treasurer. If he were validly appointed as National Secretary- Treasurer, then the resignation from the other office was involved as an incident or consequence thereof. But otherwise it was irrelevant to his assertion that he was the National Secretary~Treasurer, If he had previously actually resigned from the position of National Assistant Secretary that would not have made his assertion that he was National Secretary-Treasurer

In cases of contract such as discussed in Tropical Trades Ltd. v. Goonan (supra) where the conduct of one party to the contract exhibits an intention for example to refrain from rescinding a contract although entitled to do so and thereby affirms that the contract is one still on foot, 1t is reasonable to say that such conduct is justifiable only on the basis that an election has been made to keep the contract on foot. In such case each party has the benefits and burdens of the contract

The doctrine of election at common law differs from that of election in equity. The latter operates to fasten upon the conscience of a person taking under a dced or will by refusing to allow him to take the benefit of the disposition in his

favour except upon satisfaction of certain conditions, But at

common law election rests upon a basis of what is thought to be

fair as between the parties. Cf. per Mason J, 1n Sargent's Case

(supra) at page 654. When a party has elected to exercise one

of his inconsistent alternative legal rights and thereby crystallascs his legal relations with another the basis of fairness in his

being held thereto is apparent. But in the present case it is

hard to see the fairness 1n Goldsworthy being deprived of his

office of National Assistant Secretary and failing every to have

had that of National Secretary-Treasurer. If he had been in a position to elect between being National Secretary- - Treasurer

or being National Assistant Secretary that would have been one

No other party is shown to have altered his position on the basis that Goldsworthy was thought to have resigned as National Assistant Secretary. The National Council did not teke or refrain from any action on that basis. The evidence suggests that the National Council was aware of the likelihood of a challenge by Egan to his dismissal and the appointment of Goldsworthy as National Secretary-Treasurer and understood that Goldsworthy's position depended in all respects on the validity

Accordingly I am unable to concur in the order made herein.

I certify that this and the 10 preceding pages are a true copy of th Reasons for Judgment herein of his Hone

IN THE FEDERAL COURT OF AUSTRALIA ) ) formerly B. No. 295 of 1975 INDUSTRIAL DIVISION ) in the Australian Industrial Court

IN THE MATTER of the Conciliation and Arbitration Act 1904

AND: JAMES BERNARD MAHER, F. MAJOR, EDWARD J. GOLDSWORTHY, R.W. BRIAN HARRADINE, KENNETH J. BENNETT, MORRIS REED, LEO WALSH, JOHN DALE, H. LESLIE KELLY, RAYMOND J. McCART, FRANK A. CURRIE F. J. KEPPEL, K.G. ADDISON J.L. MCPHIE, JOHN M. BOAG and D.S. KILLICOAT

I have had the opportunity of reading the reasons for judgment herein of Northrop J. I agree with those reasons and have nothing to add.

Industrial Law - interpretation of rules ~ validity of election of officers of an organisation - time of commencement of an clection - effect of rules of an

organisation which are in contravention of the Conciliation

and Arbitration Act 1904 ~- effect of rules ceasing to

contravene the Act due to repeal of legislation. Conciliation

and Arbitration Act 1904 s. 133(1), (3), (4A), 140(1)

CORAM: Smithers, Evatt and Northrop JJ. 8 June 1978

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGTSTRY 5 No. 23 of 1977 INDUSTRIAL DIVISION )

AND: JAMES BERNARD MAIER WALTER FRANGIS MAJOR KENNETH JOUN BENNET LEO WALSH MORRIS REFD SHOP _DISTRIBUTIVE 6 ALLIED EMPLOYEES ASSOCIATION

JUDGES MARKING ORDER : SMITHERS, EVATT and NORTHROP JJ.

THE COURT ORDERS:That the rule nisi herein be discharged.

IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION N.S.W. No. 23 of 1977

IN THE MATTER of the Conciliation and Arbitration Act, 1904

AND: JAMES BERUARD MAHER WALTER FRANCIS MAJOR KENNETH JOHN BENNETT LEO WALSH MORRIS REED SHOP DISTRISUTIVE & ALLIED

The question for decision in this matter is whether at elections conducted at the biennial mecting of the National Council of the Shop Dastributive and Allied Employces' Assoc- iation (S.D.A.) which commenced 1n November 1976 and after adjournment concluded in July 1977 the respondent Maher was elected National President, the respondent Magor was elected National Vice President and the respondents Bennett Reed and Walsh

or any of them were elected members of th: National Executive of

the Association. This question arises in an applicetion under s.1/+4

of the Conciliation and Arbitration Act 1904 (the Act) for orders

requiring each of the respondents to obey the rules by cezsang to hold himselfout as being the holder of the office to which he

The claimant Parry Thomas Egan alleges that none of the respondents was elected to the offices aforesaid at the elections conducted at the meeting of the National Council because the rules appearing in the S.D.A. rule book according to whicn the elections were conducted were not valid rules of the S.D.A. at the time of

The elections for the office of National President and National Vice-President were conductcd pursuant to Rules 14 and

following positions:- National President, National Vice-President, National Secretary-Treesurer end National Assistant Secretary. Such Officers shall

if a delegate, upon election shall cease to be a delegate from any Franch whilst holding their respective positions. At the expiration of their term of office they shall be eligible for re-election.

The term shall not include any person holding office of Branch only.

No person shall hold at any one time more than cne of the offices mentioned in this Rule."

and "45, FLECTION OF OFFICERS AND EYPFCUTIVE MIBERS

(a) Nominations for the positions of National President National Vice-President ard three (3) National Executive Members shell be

called for by notification to all members of National Council by the Returning Officer at least fourteen (14) days prior to each bi-ennial meeting of the National Council,

Nominations shall close at the opening of the ba-ennial meeting of the National Council.

Should more than the required number of nominations be received for any position a secret bailot of all membcrs of National Council shall be conducted by the Returning Officer without delay.

The ballot shall close upon the return of all ballot papers but in no case shall it close later than fourteen (14) days after the ballot papers have been distributed.

(b) Prior to every third bi-~ennial meeting of National Council nominations for the positions of National Secretary-Tress- urer and National Assistant Secretary shall be called for at the same time and in the same manner as the nominations referred to in paragraph (a) hereof and the ballot for these positions shail proceed in the same manner and at the same time as for the positions of National President, National Vice-President and the three (3) National Executive Members,"

Rule 15A provides that the conduct of the elections shall be in the hands of the Returning Officer who (inter alia) calls for nomi-~ nations by giving notice to each member of the National Council (r.154 (1)). Rule 15A (8) provides that "successful candidates shall assume office on the declaration of the poll and subject to the rules shall hold office till their successors are elected, and shall be eligible for re-election,"

The election of members of the National Executive was conducted pursuant to Rule 15 set out above. Actording to Rule 12(a) such members are elected by and from the members of National Council, Rule 47(e) empowers each branch of the S.D.A. to elect its own delegates to National Council, At the material times delegates of some branches had been elected at a branch election in which all financial members of the branch were entitled to vote, while delegates of other branches had been elected by and from the members of the Branch Committee of Management who had been elected to that Commitrec pursuant to an election in which all financial menbers of the

According to these rules the National Council which elected the National officers and National Executive members was comprised of the four National Officers and branch delegates elected as mentioned above, The National Officers had been clected at a previous election by a National Council similarly constituted, By s.133 of the Act as amended by s.52 of the Conciliation and

Arbitration Amendment Act 1972 (Act No. 138 of 1973) whach came anmto

operation on 13 November 1973 it was provided as follows:-

"433,{1) In addition to the conditions referred to in sub-section (2) of section 132, the conditions to be complied with by ... organisations include

(a) shall provide for the clectzron of the holder of each office within the association or organisation at an election at which 311 fanancial members, or all financial mepbers included in such brench, section or ovher division, or in such class, as is appropriate, having regard to the nature of the office, are subject to reasonable provisions with respect to enrolment eligible to vote;

(1A) Where, immediately before the commencement of this sub-section, the rules of an orgeunisation provided for the filling of an office, being en office the holder of which is a member of the commiitee of management of the organisation but the duties of which are of a part-time nature, otherwise than by election directly by the members of the org2rmsation who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (1) but by a proucedure an which those members elect delegates to a conference or council of the organisation and those delegatcs elect a person to hold that office from amongst them- selves, those rules shall not, by reason only of that provision be taken to fail to comply with paragraph (a) of sub-section (1).

(3) An association which was registered as an organisation on the date on which th? Conciliation and Arbitration Act 1973 received the Roy. 1 Assent is allowed ea period of twelve months aiter that dace, or such longer period as the Industrial keristrar determines, within which to bring its rules into

conformity with the requirements of sub-section (1),

(4A) Notwithstanding sub-sections (3) and (4), where, immediately before the commencement of this sub-section, the rules of an organisation provided

orgenisation otherwise than directly by the members

of the orgenisation who would be entitled to vote if

members indirectiy take part, the organisation is ellowed

a period of three years after that date within which

to bring its rules, so far as they relate to that office,

anto conformity with paregraph (ay of sub-section (1)."

Acting on the view that the rulcs of the S.D.A. referred to above were not in conformity with the requirements of s.133(4)(a)as amended by Act No. 138 of 1973, tne s.T.A, recuected the Industrial Registrar to determine a longer period pursuant to S$. 133 (3). But tnat longer period expired on 31 October 1975. The result was that on 1 November 1975 unless s.133(1A) or s.133(4A) of Act No. 138 of 1973 were applicable to the rules of the 8.D.A. as they stood immediately before the commencement of such sub-sections namely on 12 November 1973 the ruies in question did not conform with the requirements of s.133(1)(a) and purported

to provide for elections otherwise than as provided for in s.133

It would dearly appear that s.133(1A) was not applicable to the rules of the organisation because the offices with which the elections in question were concerned were part-time offices and the procedure of election provided by the rules was that of a collegiate system of more than "one tier", Section 132(1A) contemplates a collegiate system of "one tier" only, but s.143(4A) apparently applied to elections for part-time offices as well as for full-time offices and applied where the procedure of election was thet of a collegiate system which might involve mulli ticrs. But it was 2 condition of the application of s.133(4A) that the election procedure

provided by the rules should be one in which the members of the

organisation who would be entitled to vote 1f the rules provided for an election at which all fanencial wmbers were, subject to reasonable provisions with respect to entitlement, eligible to vote, indirectly take part. In such case the organisation was allowed a period of three years nemely until 13 November 1976 within which to bring 1ts rules into conformity with paragraph (a) of sub-section (1) of s.133 as enacted by Act No. 138 of 1973. The question 1s whether the procedures for election of the National President, National Vice-President and National Executive members were procedures in which the members specified in s.133(4A) andirectly take part within the meaning of that sub~ section. The Elective Structure

The rules provided for the National President, National Vice-President, National Secretary-Treasurer and National Assistant Secretary to be elected by and from the National Council (Rule 14). Nataonal Council was constituted by the National President, National Vice-Presadent, National Secretary-Treasurer National Assistant-Secretary and a number of delegates of Branches. The delegates would ordinarily considerably outnumber the four officers. (Rule 8) 'The National Council meets biennially. Nominations for the positions of National President and National Vice-President and National Executive members were called for by notification to all members of National Council by the Returning Officer at least 14 days prior to each biennial meeting of the National Council. Nominations for the positions of National Secretary-Treasurer and National

Assistant Secretary were called for 14 duys before every

third biennial meeting of National Council. In respect of all

the positions mentioned nominations closed at the opening

of the relevant National Council meeting. Were a ballot necessary it was to be conducted by the Returning Officer without delay (Rule 15). But the declaration of the poll took place as the second last item of business of the meeting. (Rule 10(14)).

Thus at any biennicl meeting of National Council the National President and National Vice~President and the three Executive

members here in issue were elected by a number of persons made up of:~

(i1) the persons who were elected as National President and National Vice-President at a National Council meeting two years earlier by delegates of branches and the then National President and National Vice-President who were elected as such two years earlier according to the same routine; and

(i2i) the National Secretary-Treasurer and National Assistant Secretary who were elected according to the same routine at a meeting of National Council which took place, according

The National Secretary - -Treasurer and National Assistant Secretary

Council constituted as mentioned above. Accordingly it could

oceur and normally would occur that the National Secretary - Treasurer ad National Assistant Secretary voting at a biennial mecting had

been elected at a meeting of National Council two, four or six

years earlicr by a Council including a Rational Sevretary--T-casurer end National Assistant Secretary elected two, four or six years earlier

than that and themselves elected according to the same routire.

the After 8 July 1976 by virtue of s.2 of /Concilietion and Arbitretion

Amendment Act 1976 (No. 64 of 1976) the maximum term for which an officer may be elected is 4 years, but on 13th November 1973 the

Accordingly. the rules provide for the election of officers and €xecutive members at an election at which the rank and file members of the organisation who would have been eligible to vote af the election had been conducted in accordence with s.133 (1) (a) indirectly took part and in which the four officers took a direct part. It was said that because of the mothnd by which the four officers had become members of the National Council their votes at an election of officers by National Council at any biennial meeting cannot be considered as the indirect votes of rank and file members who would have voted had the election been conducted in accordance with s.133 (1)(a). They were too remote from the rank and file who would vote at such an election and in any ovent, if any section of rank and file could be considered as voting indirectly through the officers at a particular election they would be a section of rank and file members of long ago, many of whom vould inevitably not be persons entitled to vote at the election if it had been conducted in accordance with s.133(1)(a). It is common knowledge that an this particular organisation the turnover of

members is extremely high cf. Levoridge v. SDAEA (1977) 17 ALR 145.

The contention for the claimant wos that the electoral system was one in which the office holders were elected not only by the persons who would have voted et an election conducted an accordance with s.133(1)(a) but by them an congunction with other

persons. It was said that the election contemplated by s.173(1)(a)

js one in which the rank and file and no other persons elect the officers and do so by direct vote. each person having a vote

of equal value. It is to be noted that if this be not

so then the apparent purpose of s.133 (1)(a) was subject to easy frustration. And support for the view that 1t is so is found both in s.133(1A) and s.133(4A) whicr assume that the situation

where an election 1s conducted in accordance with the provisions of s.133(1)(a) is that the election so conducted is an election of officeholders directly "by" the "members who would be entitled to vote if the rules were in accordance with" s.133(1)(a), and not by them and other persons. On this view s.133(4A) provides for cases in which "those members" take part indirectly rather than

by direct vote and not for cases where those members participate indirectly in the election alongside other electors. In support of these views reliance was placed by the claiment on my published reasons for judgment in Clarke v. Maynes (B. No. 55

of 1976 Australian Industrial Court 23 December 1976).

The rules described above provided for an electoral system very similar in structure to that considered by the Australian Industrial Court in Clarke v. Maynes. Dealing in that case, with that set of rules, I expressed the view that on 28 September 1976 the rules there in question contravened s.140(1)(a) of the Conciliation and Arbitration Act 1904 because they did not conform with the provisions of s.133(1)(a) of the Act as then in force and were not such that s.133(4A) was applicable thereto. The actual rules attacked in that case were sub-Rules 16(1) and 16(7) of the

Federated Clerks' Union of Australia which were in the following

(1) Subject to the provisions of Rule 32 the supreme control of the Union shall be vested 1n a Council, the

members of which shall be the Federal President, the Federal Deputy President, The Federal Secretary

and the Assistant Federal Secretary and the Councillors elected by each Branch on the following basis:-

Branches having 1500 or less members Branches having 1501 to 3500 members Branches having 3501 to 6500 members Branches having 6501 to 9500 members Branches having 95071 to 12500 members Branches having12501 and over members

2 Councillors; 3% Councillors; 4 Councillors; 5 Councillors; 6 Councillors;

but no Branch shall elect more than 6 Councillors."

"46(7) The Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary shall not be entitled to be elected by any Branch as a Federal Councillor."

So far as material my reasons for judgment in Clarke v. Maynes (supra) were in the following terms:~

"The method of election of the four Federal Officers is dealt with in Rules 23, 23A, 24 and 25.

be elected by and from the members of the Federal Council in accordance with Rule 22 and that the person elected shall hold offace until his successor has been duly elected or until the occurrence of an extraordinary vacancy in the position.

Rules 23A, 24 end 25 contain similar provisions with respect to the Federal Deputy President, Federal Secretary and the Assistant Federal Secretary respectively. Rule 22 provides that at mectings of Federal Council each member present shall be entitled to one vote. A biermial meeting was held in October 1976 and Federal Council purported to elect a Federal President, Federal Deputy President, and it would seem, other officers.

The claimant pointed out that the procedure for election of such officers was what is known as a multi tier collegiate system, that is a system under which renk and file members in certain Branches elected a Council which in tur elected delegates to Federal Counc2l which an turn elected the officers, It appears that certain Branches of the Union elect Federal Councillors by direct membership vote, but that in other Branches the members elect a Council which then elects the Branch delegates to Vederal Council,

The claimant argued that having regard to the presence of the multi tier procedure 3.133(1A) was not applicable to the Union Federal elections, The respondent did not contend to the contrary. The claimant contended also that s.133(4A) was inapplicable to the Federal election procedure of the Union. The respondents did contend to the contrary of this proposition.

The respondents said that the procedure obtaining under the rules was one in which the members of the Union indirectly take part. Accordingly, so it was said, the organisation was allowed until 1%th November 1976 to brang its rules into conformity with paragraph (a) of sub- section (1) of s.13%.

The problem raised is one of interpretation of s.133(4A) in the light of the whole of the provisions of 8.133, That section enacted by sub-section (){a) that in addition to the conditions referred to in sub-section (2) of s.132 the conditions to be complied with by organisations include a condition that the rules of the organisation shall provide for the election of the holder of each office within the organisation at an election at which all financial members are entitled to vote.

By sub-section (3) it was provided that an organisation already registered should be allowed a period of twelve months after the date of Royal Assent to the Act (namely 13th November 1973) or such longer period as the Industrisl Registrar might determine within which to bring its rules into conformity with the requirements of sub~section (1).

The requirement of the procedure referred to in sub-section (44) is that it is one in which members described as "those members" take part. Those members are "the members who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section

established by sub-Rule 16(1) and Rules 23, 23A, 24 and 25 is a procedure in which the financial members take part indirectly. He points out that by electing directly or indirectly 32 of the 36 collegiate members 111 financial members have taken part in the election of (aay er Council, and that that satisfies sub-section

However in my opinion that is not enough. Such a construction of sub-section (4A) would mean thet it would be satisfied by a procedure by which five or six collegiate members out of 37 or more were clected arrectly or indirectly by the financial members. This would be out of harmony with the thrust of sub-section (1) (a) which clearly contemplates that the electors of officers are to be all relevant financial members and no other persons and they are to act directly.

Clearly erough sub-section (4A) is intended to give time for the bringing of the rules into conformity where

the existing election procedure provides for election

by the financial members indirectly rather than directly. But it is another question whether it is intended to

give that time where the participants are not only the financial members as such but members voting directly in the college not as delegates of financial members but deriving their voting entitlement from a rule authorising officers to vote, It 1s to be noted of course that in

a case like the present each officer has the voting power of a delegate representing between 1500 and 3000 financial members. The answer depends on the meaning

of the expression "in which those members indirectly

take part". Mr. Keely argued that if it had been intended to indicate that the procedure must be one in which the top college was comprised only of delegates

of financial members the legislature would have employed expressions such as are found in sub-section (1) (A)

which speaks of a procedure in which the members elect delegates to a conference or Council and those delegatcs elect the person to hold the office.

But there is good reason for the change in language. Sub-section (1A) relates only to a one tier collegiate system. Sub-section (4A) deals with a multi tiered system,

At a glance

Court

Decision date

Before

Source

Judgment (459 paragraphs)

Cases Cited (6)