Fohmsbee v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Introduction 1 The principal proceeding before me was commenced as an application under s 218 of the Workplace Relations Act 1996 (Cth) ("the Act") for an inquiry by the Court into a claim that there has been an irregularity in relation to an election for an office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union"). 2 The alleged irregularity was particularised by the applicant for the inquiry ("Mr Fohmsbee") as follows: "A person declared elected to the Office of Organiser, Printing Division, NSW Branch, on September 22nd 1997, namely Ms Amanda Perkins, was not entitled to stand for and/or hold the said office by reason of the fact that she failed to qualify under the rules of the organisation, since she was not properly admitted as a member of the Printing and Kindred Industries Union, (a predecessor union of the amalgamated union, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ['AMWU'] and/or she did not have the required continuity of financial membership of the AMWU under the rules." 3 On 18 November 1997, after hearing counsel for Mr Fohmsbee, and on the basis of an undertaking given by Mr Fohmsbee, I indicated that I was satisfied that there was reasonable ground for the inquiry. I fixed the time and place for the inquiry and directed that certain persons be given notice of the inquiry. Upon the commencement of the hearing of the inquiry, I allowed to appear, as persons justly entitled to be heard on the inquiry, Mr Fohmsbee, Ms Perkins, Mr Hill, the returning officer, and the Union. Each of them appeared by counsel. 4 Other proceedings, which by consent are to be determined together with, and on the basis of the same evidence as the proceeding which I have described as the principal proceeding, are as follows: (a) Cameron v Perkins (NG 342 of 1998) in which the National Secretary of the Union ("Mr Cameron") has applied under ss 257 and 258 of the Act for a determination of the question whether an invalidity has occurred in the management or administration of the Union. In this proceeding a declaration is sought to the effect that Ms Perkins has never been eligible for membership of the Printing and Kindred Industries Union ("the PKIU") or the Union and orders intended to negative the consequences of her having been treated as a member of the two organisations; (b) Perkins v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union & Anor (NG 672 of 1998) in which Ms Perkins seeks, in effect, the obverse of the order sought by Mr Cameron in NG 342 of 1998. That is, she seeks, in effect, a declaration that no invalidity has occurred in the management or administration of the Union by her having been treated as a member of the Union and elected to the office of State Organiser - Printing Division and, in the alternative, if an invalidity has occurred, orders validating such invalidity, and negativing the consequences in law of such invalidity.

Undisputed Facts 5 The following facts are not in dispute. 6 The Union is an organisation registered under the Act. Mr Fohmsbee is a member of the Union. 7 The Union came into being on 1 February 1995 as the result of a number of amalgamations, including the amalgamation of the operations, administration, funds and resources of the Automotive, Food, Metal and Engineering Union ("the AFMEU") and the PKIU. 8 On or about April 1994 Amanda Perkins ("Ms Perkins") was purportedly admitted to membership of the PKIU. At the time Ms Perkins was a trainee in a program organised by the Australian Council of Trade Unions ("the ACTU") which was known as the 'Organising Works' program. 9 By force of s 253Q(3) of the Industrial Relations Act 1988 (Cth) persons who were members of the PKIU became members of the Union on and from the date of approval of the Amalgamation by the Australian Industrial Relations Commission. 10 At least since the time of the Amalgamation, the Rules of the Union have provided for the organisation of its members into divisions. One such division is known as the Printing Division. The membership of the Printing Division corresponds with the membership formerly covered by the PKIU. 11 After the Amalgamation, Ms Perkins was employed as a recruitment officer in the Printing Division of the Union. The position of recruitment officer is not an elected position within the Union. 12 On or about 2 August 1997 nominations for election to offices in the Printing Division were called by the Australian Election Commission ("the AEC") pursuant to the rules of the Union. Amongst the offices for which nominations were called were four positions of Organiser, Printing Division. 13 Ms Perkins was nominated for election to the office of Organiser in the Printing Division-NSW Branch. On 22 September 1997 the returning officer determined that the nomination of Ms Perkins was valid and, the number of nominations for the office of Organiser in the Printing Division NSW-Branch not exceeding the number of officers in that category to be elected, declared her to have been elected to that office.

Rules 14 It is not in dispute, or at least, it was not until late in the proceeding in dispute, that the Union rule which governs the election to the position to which Ms Perkins was declared to have been elected is rule 49.33. So far as is here relevant, rule 49.33 provides as follows: "33. The election shall be conducted in accordance with the provisions of Part A of Rule 2 of these Rules provided always that:- (a) A nominee must be nominated by a person who is at the closing date for lodging nominations a financial member of the Union and - (i) be a financial member of the Printing Division attached to the Region; (ii) have been a member of the Union - A. in the case of the Regional President, Regional Vice-President, Regional Secretary, Regional Assistant Secretary and State Organizers - for a continuous period of not less than 3 years immediately preceding the closing date for lodging nominations; and B. in the case of Committee Members or equivalent positions have been a member of the Union - for a continuous period of not less than 12 months immediately preceding the closing date for lodging of nominations. (iii) have not been, during the period of 12 months immediately preceding the closing date for nominations, unfinancial for a period longer than 3 months; (iv) have been, during the period of 12 months immediately preceding the closing date for lodging nominations:- A. employed as an employee in a trade or calling or branch thereof or in connection with which the Union is registered; B. unemployed on account of illness, incapacity or inability to obtain employment; or C. engaged in a full-time office of the Union after having been elected or temporarily appointed thereto.

Contentions 15 The contentions advanced on the election inquiry were more extensive than those relied upon for the purpose of the application for the inquiry. Mr Fohmsbee and the Union contended that Ms Perkins was not eligible to be nominated for election to the office of State Organiser of the Printing Division of the Union. They did so on the following bases - (a) Ms Perkins was not a financial member of the Printing Division-NSW Region as she was never validly a member of the PKIU or the Union (rule 49.33 (a)(i)). (b) Ms Perkins did not satisfy any of the alternative requirements of rule 49.33 (a)(iv). In particular, rule 49.33(a)(iv)A is to be construed so as to require a person to have had the specified type of employment continuously during the period of twelve months immediately preceding the closing date for the lodging of nominations and Ms Perkins did not have such continuous employment. 16 Ms Perkins contended that - (a) she was eligible for membership of the PKIU and was admitted as a member of the PKIU in 1994; (b) even if she were not eligible for membership of the PKIU, s 256 of the Act now validates the act of the PKIU-NSW Branch Executive in admitting her to membership, the act of the PKIU in including her on the roll of members and the act of the officer or officers in so doing; (c) s 253Q(3)(d) of the Act operates to transfer her membership of the PKIU to membership of the Union and no separate question of eligibility arises (s 253ZD of the Act); (d) she satisfied the requirements of rule 49.33(a)(iv) by reason of being a member of the Union during the period of twelve months immediately preceding the closing date for the lodging of nominations; (e) the reference in rule 49.33(a)(iv) to "during the period of 12 months" does not import a requirement of continuous satisfaction throughout such period and, (f) if rule 49.33(a)(iv) does import a requirement of continuous satisfaction, it is oppressive, unreasonable or unjust and void between the parties (ss 196 and 208 of the Act). 17 Mr Hill, the returning officer, made no submission on the issue of Ms Perkins' eligibility for nomination for election to the office of State Organiser of the Printing Division of the Union.

Ms Perkins' admission as a member of the PKIU 18 The relevant eligibility rule of the PKIU is rule 2(2) of the PKIU Rules. So far as is here relevant, the rule provided as follows: "(2) Eligibility for Membership The Union shall consist of an unlimited number of persons … who are employed or whose usual occupation is that of an employee in or in connection with: (a) any business, trade, manufacture, undertaking, calling, service, employment, handicraft or industrial occupation or a vocation … in the printing industry or a kindred industry …; and (b) …. The Union shall also consist of such other persons, whether employees in the foregoing industries or industrial pursuits or not, as have been appointed officers of the Union and admitted as members thereof." 19 Rule 5 of the PKIU Rules governed the admission of members. So far as is here relevant rule 5(1) provided as follows: "(1) Any person desirous of becoming a member of the Union shall forward or cause to be forwarded to the Secretary of the Branch in the State or Territory in which he is employed an application for membership completed in duplicate. Upon receipt by the Secretary of the Branch of such application such person shall, subject to the exceptions set forth in this Rule, be deemed to be a member of the Union as from the date of receipt of such application. …. Notwithstanding anything contained in this Rule to the contrary the Secretary of the Branch shall refer each application for membership to a meeting of the Board of Management for consideration and decision. The date of the commencement of the membership of the member shall be as from the date on his application form unless otherwise determined by the Board of Management. Where in any case the decision of the Board of Management of a Branch is against the admission of the person applying, such person shall have the right to appeal to the next ensuing General Meeting of members of the Branch …." 20 Division 9 of Part IX, of the Act is concerned with the membership of organisations. Section 261(6) of the Act, which is concerned with entitlement to membership provides as follows: "A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation: (a) shall for the purposes of this section be taken to be an employee; and (b) in spite of anything in the rules of the organisation, shall not be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation." 21 Ms Perkins applied on 21 April 1994 to be admitted as a member of the PKIU. She completed the application form at the office of the NSW Branch of the PKIU and I find that the application was received by the Secretary of the Branch on that day. The application form is marked in a way which suggests that she paid $5.00 for a "permit" on that day. Rule 8 of the PKIU Rules authorised the Secretary of a Branch, in the case of non-apprenticeship occupations, to issue a permit to a person to enable him or her to obtain employment in the industry. I observe that it is far from clear that it was appropriate under the PKIU Rules for Ms Perkins to be issued with a permit in April 1994. However, I find that she was issued with a permit on 21 April 1994 and also in the two succeeding months and that on each occasion she paid the prescribed fee of $5.00. Rule 8(5) of the PKIU Rules provided that "[i]n no event shall a person be issued with more than three (3) consecutive monthly Permits". 22 From 29 July 1994 Ms Perkins' name appeared on computer generated lists of members of the PKIU. Such lists were apparently produced each month. Her application form is stamped near its foot with the date 25 July 1994. A computer generated report concerning her membership of the PKIU shows her to have paid union dues of $45.50 on 20 July 1994 and an entrance fee of $5.00 on 25 July 1994. The same report also shows her to have been debited on 25 July 1994 with $80.50 for "dues to 30/09/94". Thereafter the report shows her to have been debited with union dues regularly until 1 January 1995, the date of the Amalgamation. The report shows all dues with which she was debited to have been paid. 23 Ms Perkins gave evidence that she was present at a Branch Executive Meeting of the PKIU-NSW Branch at which the Branch Executive voted to accept certain new members including herself. No one contended that the Branch Executive was not the Board of Management of the NSW Branch of the PKIU within the meaning of rule 5 of the PKIU Rules and I find that it was. Ms Perkins' evidence was that the meeting of the Branch Executive at which her application for membership was accepted was held in May or June 1994. I find on the balance of probabilities that she is in error in this regard and that her application for membership was approved at the July 1994 meeting of the Branch Executive. I find that this meeting took place on either 20 or 25 July 1994. I find that, the issue of eligibility aside, Ms Perkins was on 20 or 25 July 1994 admitted as a member of the PKIU in accordance with the Rules of the PKIU. 24 I am satisfied that Ms Perkins at all relevant times after July 1994 acted in good faith as a member of the PKIU and was treated by the PKIU as a member. To the extent that Mr McCarthy gave evidence to the contrary, I reject his evidence in favour of that given by Ms Perkins, Mr King and Mr Henderson. I do not accept that Ms Perkins was merely recognised as a permit holder. 25 Rule 5 of the PKIU Rules provided that the date of commencement of the membership of a member shall be as from the date of the application form unless otherwise determined by the Board of Management. There is nothing before me to suggest that the Board of Management of the PKIU "otherwise determined" in the case of Ms Perkins. Indeed the records of the PKIU show Ms Perkins to have been a member of the PKIU since 21 April 1994.

Ms Perkins' eligibility for membership 26 Ms Perkins asserts her eligibility for membership of the PKIU on three bases. First, that her usual occupation at the time of her membership application was as an employee in or in connection with an industry or industrial pursuit referred to in rule 2(2) of the PKIU Rules. Secondly, that she was appointed as an officer of the PKIU. Thirdly, that even if she was not appointed as an officer of the PKIU she was qualified to be appointed as an officer of the PKIU and sought to be employed as such an officer (s 261(6) of the Act). 27 It is not necessary for me to reach a concluded view on whether Ms Perkins' eligibility to be admitted as a member of the PKIU is to be determined as at the date of her application for membership or as at the date of the acceptance of her application. This point was not argued before me. I note, however, that in Re Federated Clerks Union of Australia; Ex parte Armstrong (1986) 70 ALR 79 Gray J preferred the view that the date of acceptance is the crucial date so far as eligibility for membership is concerned. 28 To establish her "usual occupation" for the purposes of rule 2(2) of the PKIU Rules, Ms Perkins places reliance on certain casual employment which she undertook a few weeks before she joined the Organising Works program. At that time she worked for "a couple of weeks" at Sydney University stamping and laminating bus passes and similar documentation and distributing bags of orientation materials to new students. It is not clear that such work is work in or in connection with an industry in respect of which the PKIU was registered, but for present purposes I shall act on the basis it is. In the intervening weeks before Ms Perkins joined the Organising Works program she was unemployed. In the rest of the year preceding her joining the Organising Works program Ms Perkins' evidence in cross-examination was that she had been doing "various things". She was not cross-examined or re-examined as to the nature of these various things or as to whether they involved paid employment. However, as at 21 April 1994 she had been a trainee in the Organising Works program for just over four weeks. By 20 or 25 July 1994 she had been a trainee for approximately four months. Her usual occupation as at these dates, in my view, was that of a trainee union officer. Her unchallenged evidence was that "at all material times" she desired to be appointed and to work as an officer of the PKIU and subsequently of the Union. It was not contended on Ms Perkins' behalf that in the circumstances of this case her position as a trainee union officer was such as to characterise her usual employment as that of an employee in connection with an industry or industrial pursuit referred to in rule 2(2) of the PKIU Rules. I am satisfied that as at 21 April and 20 or 25 July 1994 Ms Perkins' "usual occupation" within the meaning of rule 2(2) of the PKIU Rules was not that of an employee in or in connection with an industry or industrial pursuit referred to in that Rule. 29 Had Ms Perkins as at 21 April 1994 been appointed as an officer of the Union? Since this inquiry was conducted, von Doussa J has delivered judgment in respect of an application for an inquiry into an election for the office of State President of the South Australian Branch of the Union (In the Matter of an Election for an Office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1998] FCA 1282). Leave to appeal from his Honour's decision has been refused (In the Matter of an Election for an Office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1998] FCA 1450). The parties in this matter were given leave to file written submissions in respect of the decision of von Doussa J, and also in respect of a recent decision of Carr J in Forbes & Anor v Community and Public Sector Union, Western Australian Branch - SPSF Group [1998] FCA 1210 referred to below ("Forbes' case"). The eligibility rule which von Doussa J was required to consider relevantly provided as follows: "1A. … the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or callings or branches thereof: … (e) Such other persons … who have been appointed officers of the Union and admitted as members thereof …." 30 After noting that the term "office" is used with different meanings in the Rules of the Union, his Honour observed: In the situations where the word "officer" is used to refer to a salaried member of staff as opposed to an elected official, the word has a wider meaning that is ascribed to "office" in s 4 of the Workplace Relations Act 1996. It is well recognised that a word defined in s 4 does not necessarily carry the same meaning in the rules of the registered organisation: see Re Inquiry into Election in Australian Builders' Labourers Federation (1958) 3 FLR 405 at 408 and Landeryou v Taylor & Others (1969) 15 FLR 147 at 156. The meaning to be ascribed to the word "officer" in a particular rule or subrule must be ascertained having regard to the context in which the term is used. In my opinion the word "officers" in Rule 1, subrule 1A(e) does not mean an elected official but refers to salaried officers. In subrule 1A(e) the expression "…employees… who have been appointed officers of the Union and admitted as members" is not an expression apt to describe someone who has been elected as an officer. On the contrary, the notion of an employee being "appointed" to a position is apt to describe the position of a salaried officer. That this is the intended meaning gains further support from the fact that elsewhere within subrule 1A(e) eligibility depends upon a person being "elected as full-time representatives of any working class organisation to which the Union is affiliated". The requirement in subrule 1A(e) that "appointed officers of the Union" should also be admitted as members provides a further indication that the qualification does not refer to an elected officer of the Union. Eligibility for election as an officer presupposes membership of the Union, and the words "and admitted as members thereof" would be superfluous if the relevant qualification related to officers who are elected officials of the Union. A similar view was expressed in relation to a similar eligibility clause in Landeryou v Taylor at 156. Whether a particular employee appointed to a salaried position within a union is fairly to be described as an "officer" will depend upon matters of fact and degree, and falls to be determined according to the nature of the position and the duties which it carries: see Landeryou v Taylor at 157-158. In the present case, the position of Administration Officer held by Mr Curry was one of considerable responsibility; indeed his duties constituted him an office manager who had charge of the day-to-day running of the Union. Insofar as Mr Curry's eligibility turns on the characterisation of his position as an "office" so that he can fairly be described as a "salaried officer" the facts clearly establish that he fulfilled that requirement." See also Ransley v Australian Public Service Association (Fourth Division Officers) (Tasmanian Branch) (1985) 12 IR 55 at 65-66. 31 I am of the view that the word "officers" in rule 2(2)(b) of the PKIU Rules similarly means a salaried officer and not an elected officer. The meaning of the word "officer" in the subrule does not reflect the meaning ascribed to the word "officer" by s 4 of the Act. Whether Ms Perkins was appointed as an officer of the PKIU in 1994 will depend upon the nature of the relationship between her and the PKIU at that time, and, assuming that she held a position within the structure of the PKIU, the nature of that position and the duties that she was required to perform in that position. 32 An examination of the evidence before me which touches on the relationship between Ms Perkins and the PKIU in 1994 demonstrates, in my view, that she was not an officer of the PKIU at that time. The minutes of the Executive Meeting of the NSW Branch of the PKIU ("the Executive Meeting") held on 10 January 1994 record that the meeting was advised that the ACTU had established a company called "Organising Works" to recruit and train fifty young people to work in the trade union movement. The Executive Meeting on that day resolved: "A. That the NSW Branch supports the Union proceeding with an application for nominating two recruits, one to be placed in the NSW Branch and one in the Victorian Branch under the direction of the respective Branch Secretaries. B. That the NSW Branch commit itself to the funding of $10,000 per year over the two year training program, for one trainee to be based in the NSW Branch. C. That the trainee selected meet the principle objectives of youth, gender and ethnicity balance. (The A.C.T.U. program is for an explicit target of at least 50% women trainees, predominantly young people i.e. under 25). D. That the program be kept under regular review to assess the progress." 33 Thereafter the Executive Meeting received reports concerning Ms Perkins' selection as the NSW Branch's trainee and as to her attendance with her mentor, a NSW Branch Organiser, at the Clyde Cameron College. Her mentor reported to the Executive Meeting on 11 April 1994 that "the recruitment of new members was the main mission of the trainees at least in the initial 12 months of their employment". 34 On 5 September 1994, the Secretary of the NSW Branch of the PKIU reported to the Executive Meeting that the organiser of the Organising Works program "have indicated that Unions need to inform the trainees of their position in relation to future employment with the Union". On that day the Executive Meeting resolved: "That subject to a satisfactory conclusion to the organising works program, trainee A Perkins be offered employment as a branch recruitment officer from January 1st, 1995. The salary and conditions to be that of an employee and subject to the AFMEU amalgamation, be based on those attached to the current AFMEU agreement with staff. The matter to be further reported to the Executive prior to January 1st, 1995." 35 I am satisfied that from about April until the end of 1994, Ms Perkins was a trainee in an ACTU sponsored program who was paid by the ACTU. She was placed in the PKIU-NSW Branch as part of her training program. I find that there was no position within the PKIU-NSW Branch structure which she filled in 1994. 36 Moreover, as a trainee Ms Perkins worked in the PKIU-NSW Branch under supervision and, although performing important work apparently successfully, she did not carry independent responsibility. 37 I am satisfied that at no time prior to 1 January 1995 was Ms Perkins appointed an officer of the PKIU within the meaning of rule 2.2 of the PKIU Rules. 38 Nor do I consider that as at 21 April or 20 or 25 July 1994, Ms Perkins was seeking to be employed as an appointed officer of the PKIU within the meaning of s 261(6) of the Act. I do not doubt that as at these dates she desired to be appointed as an officer of the PKIU but her desire was not, I find, a desire to be then appointed as an officer but rather a desire to be appointed as an officer of the PKIU at the completion of her traineeship. Section 261(6) of the Act, in my view, is concerned with persons actually looking to obtain relevant employment with the intent of promptly taking up such employment if the opportunity to do so should arise. Ms Perkins was not as at 21 April or 20 or 25 July 1994 such a person. 39 On behalf of Ms Perkins it was contended, presumably in the alternative to her other submissions, that rule 5 of the PKIU Rules made the "satisfaction of the Board of Management" the criterion by which membership of the PKIU was granted, and that there being no challenge to the bona fides of the Board of Management in admitting Ms Perkins as a member, her membership is now unassailable. 40 Rule 5(1) of the PKIU Rules, which is set out above, is, in my view, a machinery provision. That is, it prescribed the process by which a person became admitted as a member of the PKIU. It does not in my view, disclose an intention to modify the eligibility criteria contained in rule 2 by making the criterion for membership a favourable decision by the Board of Management following its consideration of an application for membership. In the circumstances it is not necessary for consideration to be given to whether a rule which did disclose such an intention would be valid. 41 I am satisfied that Ms Perkins was not at any time during 1994 eligible for membership of the PKIU. I am therefore satisfied that she was not lawfully admitted to membership of the PKIU in July 1994. I consider it appropriate, however, to give consideration to whether she subsequently became eligible for membership of the PKIU. 42 On 1 January 1995 Ms Perkins commenced employment with the PKIU-NSW Branch as a recruitment officer. This was not an elected office but, for the reasons outlined above, this is not material to the question of whether Ms Perkins was a person appointed as an officer of the PKIU within the meaning of rule 2(2)(b) of the PKIU Rules. There is limited evidence before me concerning the nature of the position of PKIU-NSW Branch recruitment officer and the duties which it carried. I accept Ms Perkins' evidence that while she was employed as a recruitment officer in the of the PKIU-NSW Branch she identified potential sources of membership and formulated strategies for recruiting new PKIU members, dealt with inquiries from prospective members, recruited new members and collected union dues. I find that she also performed some functions ordinarily the responsibility of an elected organiser. I note that following the Amalgamation, the Union's Quarterly Report for April-June 1997 listed its recruitment officers, including Ms Perkins, as officers of the Union. I also note that Ms Perkins was provided by the Union with a business card which identified her as an officer of the Union. 43 On the evidence before me I am satisfied, having regard to the nature of the position held by Ms Perkins after 1 January 1995 and the duties of such position, that she was appointed as an officer of the PKIU within the meaning of rule 2(2)(b) of the PKIU Rules on 1 January 1995. 44 It was contended by the Union that the relevance in rule 2(2)(b) to "other persons … as have been appointed officers of the Union and admitted as members thereof" is a composite expression and requires "the deliberate act of saying you are appointed an officer and you are thereby admitted to membership". This contention appears not to have been put to von Doussa J in the course of the application before him referred to earlier in this judgment. It is not consistent with his Honour's determination in that case. It is not necessary for me to determine this issue and as it was not fully argued before me I consider it preferable not to do so. Nonetheless I find that as at 1 January 1995 Ms Perkins' lack of eligibility for membership of the PKIU was removed in that she could at that time, when as I find she was appointed an officer of the PKIU, have been lawfully admitted as an member thereof. 45 However, the only application made by Ms Perkins to be admitted as a member of the PKIU or the Union was that dated 21 April 1994 (cf. Re Federated Clerks Union of Australia; Ex parte Armstrong(1987) 70 ALR 79; Ransley v Australia Public Service Association (Fourth Division Officers) (Tasmanian Branch)). She made no application on or after 1 January 1995. Ms Perkins is thus not qualified to make an application in this proceeding under s 260 of the Act for a declaration that she is entitled to be admitted as a member of the PKIU and to be treated as though she had been a member since 1994. 46 I do not accept the submission advanced on behalf of Ms Perkins that s 253Q(3) of the Act has the effect that she became a member of the Union upon the Amalgamation taking effect. Section 253Q(3) provides as follows: "253Q(3) On the amalgamation day: (a) if the proposed amalgamated organisation is not already registered - the Industrial Registrar must enter, in the register kept under paragraph 63(1)(a), such particulars in relation to the organisation as are prescribed, and the date of the entry; and (b) any proposed alteration of the rules of an existing organisation concerned in the amalgamation takes effect; and (c) the Presidential Member must de-register the proposed de-registering organisations; and (d) the persons who, immediately before that day, were members of a proposed de-registering organisation become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation." 47 In Tierney v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union of Australia (1996) 137 ALR 312 ("Tierney's case") at 319 Moore J (in dissent, but not on this point) observed: "Section 253Q(3)(d) might operate in one of two ways. On one construction it would render a de facto member of the deregistering organisation a de facto member of the organisation whose registration continues, that is, the amalgamated organisation, and, if so, s 260 might then operate on the de facto membership both before and after the amalgamation. The other construction is that s 253Q(3)(d) transfers the membership of actual members only. However, it is reasonably plain having regard to not only the terms of s 253Q(3)(d) but also s 253S that the word "members" in s 253Q(3)(d) is a reference to actual members only and not to de facto members. Thus s 253Q(3)(d) does not operate to transfer the "membership" of a de facto member." 48 I agree with the above passage from his Honour's reasons for judgment in Tierney's case. 49 I do not consider that 253ZD of the Act, which validates acts done in good faith for the purposes of a proposed or completed amalgamation, has any operation in the circumstances of this case. Counsel for Ms Perkins submitted that the act of an officer in transferring to or including in the membership list of the Union the name of Ms Perkins was an act done for the purpose of amalgamation. No list of the members of the Union as at 1 February 1995 was placed in evidence. Even if it had been, in my view, it would have been irrelevant as nothing in the Act gives legal significance to the act of preparation, or the publication of, such a list. The issue of the membership of an amalgamated organisation is specifically dealt with by s 253Q(3)(d) of the Act. The Act does not require the preparation or publication of a list of members of the amalgamated organisation. There is nothing before me to establish that the relevant scheme of amalgamation required the preparation or publication of such a list. No issue of the validity or invalidity of a list of members of the Union as at 1 February 1995 as an act done for the purposes of a proposed or completed amalgamation can arise (Re Keely; Ex parte Kingham (1995) 129 ALR 255 at 271-272. 50 I conclude that, subject to the operation of ss 256, 257 and 258 of the Act, Ms Perkins is not entitled to be treated as a former member of the PKIU.

The application of the Validating Provisions of the Act: ss 256 and 257.

51 Division 8 of Part IX, of the Act contains validating provisions for organisations. Sections 256 and 257, so far as is here relevant, provide as follows: "256(1) Subject to this section and section 257, after the end of 4 years from: (a) the doing of an act: (i) by, or by persons purporting to act as, a collective body of an organisation or branch of an organisation and purporting to exercise power conferred by or under the rules of the organisation or branch; or (ii) … (b) the election or purported election, or the appointment or purported appointment of a person, to an office or position in an organisation or branch; or (c) … the act… shall be taken to have been done in compliance with the rules of the organisation or branch. 256(2) … 256(3) This section extends to an act …: (a) done or occurring before the commencement of this section; or (b) …". 257(1) Where, on an application for an order under this section, the Court is satisfied that the application of section 255 or 256 in relation to an act would do substantial injustice, having regard to the interests of: (a) the organisation; (b) members or creditors of the organisation; or (c) persons having dealings with the organisation; the Court shall, by order, declare accordingly. 257(2) Where a declaration is made under subsection (1), section 255 or 256, as the case requires, does not apply, and shall be taken never to have applied, in relation to the act specified in the declaration. 257(3) The Court may make an order under subsection (1) on the application of the organisation, a member of the organisation or any other person having a sufficient interest in relation to the organisation. 52 The four year time period necessary for the operation of s 256 so far as Ms Perkins' admission to membership of the PKIU is concerned had not expired as at the date of the application for this inquiry or as at the date of the commencement of the inquiry. However, the four years has now expired. In such circumstances the four year time period which governs the operation of s 256 is to be taken to have been satisfied (Cook v Crawford (1982) 62 FLR 34). 53 In Baillie v Tierney (1995) 63 IR 375 at 387 Keely J, sitting as a member of the Industrial Relations Court of Australia, held that s 256 does not operate to validate the purported admission to membership of a person who at the material time was not eligible to become a member. His Honour there observed: "Sections 256 and 260 were enacted at the same time, as part of a scheme of "validating provisions for organisations". In my opinion Parliament's intention was that the specific and detailed provisions in s 260 were to be the only validating provisions relating to a person who had "acted in good faith as, and been treated by the organisation as a member". As a matter of construction of the section in its context, in my opinion s 256 was not intended to operate in such a way as to validate Ms Tierney's membership". 54 However, in Forbes's case,Carr J, who was apparently not referred to Baillie v Tierney, observed that he could not see anything in s 256 or its context which would require the section to be read down so as not to deal with membership, or which required it to be construed in a way which prevented its validating an invalid grant of membership or deeming an ineligible person to be a member of an organisation. 55 Like Carr J, I agree with the views expressed by Gray J in relation to the predecessor of s 256 in Geneff v Peterson (1986) 19 IR 40 at 76. Gray J there said: "In my view, s 171F, which is a remedial provision, should be allowed a generous area in which to operate. … The purpose of the section is to relieve organisations of the burden of having their past administration examined in minute detail, and of old invalidities having continuing consequences. For these reasons, in most cases, an act done by a purported governing body or purported official will be held to fall within the section." 56 Having regard to the purpose of s 256, I prefer to the views of Carr J in Forbes' case to those of Keely J in Baillie v Tierney. In any event, I consider that I should follow the approach adopted by Carr J sitting as a judge of this Court unless I am satisfied that it is wrong (K-Mart Australia v Commissioner of Taxation (1995) FCA 760). Far from being satisfied that it is wrong, I respectfully agree with his Honour. Nothing said by O'Loughlin J in Re Healey; Re Inquiry into Election in Australian Workers Union, South Australian Branch (1992) 40 IR 110 at 112 concerning s 256(1)(b), which is concerned with the validity of elections, appears to me to be inconsistent with the approach to s 256 adopted by Carr J in Forbes' case. 57 I also agree with Carr J that Tierney's case is of limited assistance so far as the construction of s 256 is concerned. In Tierney's case, the majority of the Full Court of the Industrial Relations Court of Australia held that a declaration under s 260 of the Act may only be made where the organisation in question is in existence both when the application is made and when the court order is made. Their Honours placed considerable weight on the precise wording of s 260 including the use of the definite article before the word "organisation". It is to be noted that s 260(1) defines a person's entitlement in terms of present entitlement to admission to membership and present entitlement to particular treatment by the organisation and its members. Section 256, by contrast, is concerned with deeming past acts to have been undertaken validly. The argument in favour of construing s 256 as applying only in respect of acts of an organisation currently registered under the Act is considerably weaker than the argument which prevailed in Tierney's case. In my view the evident purpose of s 256 would be significantly undermined if it were construed so as to exclude from its operation an organisation which ceased to be registered after the doing of the act in question. I agree with Carr J that it should not be so construed. 58 It was also submitted by the Union, as I understand it, that s 256 should not be construed so as to validate an individual's membership of an organisation where the individual was ineligible for membership at the time of the act which purportedly made him or her a member. Reliance was placed on the decision of the Full Court of the Australian Industrial Court in Gordon v Carroll (1975) 27 FLR 129 at 160 where the Court said of s 171B of the Conciliation and Arbitration Act 1904-1974 (Cth), the precursor of s 255 of the Act, that:- "There is in this section no reference to the powers of the collective body or officer. It does not validate or in any way concern itself with the acts of a collective body which, or officer who, exceeds its or his authority. "Acts" must mean, in this section, acts which would otherwise be within the power of the collective body or officer." 59 Mr Haylen QC, senior counsel for the Union, contended that by analogy s 256 does not operate so as to validate the admission to membership of an organisation of a person ineligible for such membership. I reject this submission which, if accepted, would in my view, significantly undermine the purpose of s 256 as articulated by Gray J in Geneff v Peterson. Such a limited construction of s 256 would leave considerable room for past administrations to be examined and old invalidities to have continuing effect. 60 The subject matter of s 256 is different from that of s 255. Section 255 provides, in effect, statutory recognition in the industrial context of the "de facto officers" doctrine (see The Queen v Cawthorne; ex parte Public Service Association of South Australia Incorporated (1977) 17 SASR 321). It is concerned with the validity of the appointment of the person who, or body which, purportedly exercised a power rather than with the extent of power so exercised. Section 256 is concerned with acts undertaken beyond power. It is intended to validate certain invalid acts after the passage of four years. Its operation is principally limited by the requirement that the act to be validated must have resulted from a purported exercise of power conferred by or under the rules of an organisation. 61 The distinction between an act undertaken in purported exercise of a power conferred by or under the rules of an organisation and an act simply beyond power will not always be an easy one to draw. However, I am in no real doubt that the admission to membership of a person who claims an entitlement to membership, and whose lack of eligibility is not apparent on the face of his or her application, will, at least in the absence of proof of lack of bona fides in the decision-maker or decision-making body, ordinarily fall within the terms of s 256. 62 I find that, subject to s 257 of the Act, the act of the Board of Management of the PKIU-NSW Branch in admitting Ms Perkins as a member of the PKIU on 20 or 25 July 1994 is now to be taken to have been done in compliance with the rules of the PKIU, including the eligibility rule, notwithstanding that Ms Perkins was not in fact eligible to be a member of the PKIU in July 1994. 63 Mr Cameron has applied for an order under s 257 of the Act as follows: "… that [Ms Perkins] should not be taken to have been admitted to membership of the AFMEPKIU in accordance with the rules of the organisation on 21 April, 1994 or at any other time, by the doing of any act by the AFMEPKIU or by any person holding or purporting to hold office in the AFMEPKIU of the kind referred to in s 256(1) of the Workplace Relations Act 1996 …". 64 I consider it appropriate to treat the reference in the above application to "the AFMEPKIU" as a reference to the PKIU. 65 Notice of the above application, and the applications made by Mr Cameron and Ms Perkins under s 258 of the Act, was given by publication of a notice in the Sydney Morning Herald and the service of the notice by post on all members of the Union and all members of the New South Wales and National Councils of the Union. Only three persons responded in writing to the advertisement. One other person, Ms Hartin, apparently a former President of the PKIU, attended at the hearing and made a brief statement. The submissions which Ms Hartin wished to advance were in accord with those to be submitted on behalf of the Union and she did not seek personally to address the Court beyond making the brief statement referred to above. 66 The Union urged that the Court should be satisfied that the application of s 256 in relation to the act of the Board of Management of the PKIU in admitting Ms Perkins to membership of the PKIU on 25 July 1994, with operation from 21 April 1994, would do substantial injustice having regard to the interests of the Union and its members. It was not contended that the application of s 256 would do substantial injustice having regard to creditors of the Union or to persons having dealings with the Union. I am satisfied that the application of s 256 in the circumstances of this case would have no relevant impact on creditors of the Union, or persons having dealings with the Union. 67 Having considered the written material placed before the Court by the three persons who responded to the public notice given of the applications under s 257 and 258, the brief statement made to me by Ms Hartin, and the submissions of counsel, I am not satisfied that the application of s 256 in relation to the act of the PKIU Board of Management in admitting Ms Perkins as a member of the PKIU would do substantial injustice having regard to the interests of the former PKIU and its members or the Union and its members. It was contended that if s 256 were allowed to have an application in this case, there would be relevant harm to the integrity of the Union's Rules and its election processes. I am not satisfied that this is so. The PKIU is no longer in existence and its rules have been superseded. Moreover, the relevant act affected one applicant only for membership of the PKIU, and that applicant, as I have found, became eligible for membership of the PKIU less than six months after the relevant act. Her eligibility for membership had not been questioned before her election as an Organiser in the Printing Division of the Union, an event which occurred more than three years after the relevant act. I decline to make a declaration under s 257(1) of the Act. 68 The act of the Board of Management of the PKIU in admitting Ms Perkins to membership of the PKIU with effect from 21 April 1994 is thus validated by s 256 of the Act (Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 262-263). Ms Perkins is to be regarded as having been a member of the Union for a continuous period of not less than three years immediately preceding the closing date for lodging nominations within the meaning of rule 49.33(a)(ii) of the Union Rules.

Was Ms Perkins unfinancial for a period of more than three months? 69 The Union and Mr Fohmsbee also contended that Ms Perkins, if a member of the Union, had been unfinancial for a period of longer than three months during the period of twelve months immediately preceding the closing date for lodging of nominations (rule 49.33(a)(iii)). This contention was based on the assertion that Ms Perkins did not pay union dues for the period between 21 April 1994 and 25 July 1994. The evidence before me establishes to the contrary. A computer print out of Ms Perkins' financial status with the PKIU between 21 April 1994 and 1 January 1995 reveals that on 25 July 1994 she was debited with $80.50 "dues to 30/9/94". On each of 1 October 1994 and 1 January 1995 she was debited with dues of $45.50. On the assumption that I make, there being no evidence to the contrary, that at the relevant time the dues payable by her for a three month period were $45.50, the sum of $80.50 with which she was debited on 25 July 1994 would appear to have been calculated as the dues payable by her from 21 April 1994, her deemed date of admission as a member, to 30 September 1994, the end of the quarter next following the date of the decision of the Board of Management of the PKIU to admit her to membership. The computer print out shows all such dues to have been paid as at 1 January 1995 on the basis that the three $5.00 permit fees paid by her prior to her admission to membership were credited against the union dues with which she was debited. I do not understand any challenge to have been made to the propriety of this step. In any event, the amount involved in the taking of this step is too small to affect Ms Perkins' status as a financial member (rule 15(1) of the PKIU Rules). 70 I am satisfied that Ms Perkins had not been, during the period of twelve months immediately preceding the closing date for nominations, unfinancial for a period longer than three months (rule 49.33(a)(iii)).

Was Ms Perkins "employed as an employee in a trade or calling or branch thereof or in connection with which the Union is registered"? 71 It was agreed before me that rule 49.33(a)(iv)A should be construed as though it read: "employed as an employee in or in connection with a trade or calling or branch thereof in connection with which the Union is registered." 72 I reject the contention, as I understand it, advanced at a late stage in written submissions made on behalf of the Union that rule 49.33(a) is concerned with the qualifications required of a person who nominates a candidate for election rather than with the qualifications required by the person nominated for election. Rule 49.33 plainly requires that the person who nominates a candidate for election must, at the closing date for lodging nominations, be a financial member of the Union. However, the grammatical structure of the opening lines of rule 49.33(a) make it plain, in my view, that it is the nominee, not the nominator, who must comply with sub-paragraphs (i) and (iv) of rule 49.33(a). Common sense would also seem to dictate this result. It is far from clear why the Rules would impose limitations of the kind contained in sub-paragraphs (i) and (iv) on nominators of candidates for election. 73 In the Matter of an Election for Office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union von Doussa J was required to determine whether Mr Curry, a person nominated for election to the office of State President of the South Australian Branch of the Union was, during a relevant period, "employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered." His Honour concluded that as Mr Curry had been appointed as an officer of the Union he was an employee in a "calling … in or in connection with which the Union is registered." 74 The Union contended that the above conclusion of von Doussa J was reached per incuriam. It appears that his Honour was not referred to the decision of the Commonwealth Industrial Court in Rounsevell v Mitchell (1968) 11 FLR 414. In that case, Spicer CJ, Dunphy and Kerr JJ rejected an argument that: "a person employed on the staff of an organization as an employee handling industrial matters arising in respect of the employment of union members in their various industries or callings is employed by the union in connexion with those industries or callings." 75 Their Honours in Rounsevell's case concluded that the work of an employed industrial officer in endeavouring to obtain wages and conditions of employment sought by the employees or their organisation was not work connected with the industries or callings in which the union members were themselves employed. Their Honours drew attention to the provisions of s 132 of the Conciliation and Arbitration Act 1904 (Cth) and to the "special provision" in it entitling unions to have rules permitting officers of the union to be members. 76 The Union contended before me that the intention of rule 49.33 is: "to require a person nominating as a candidate to be actually employed and working in the industries or occupations in relation to which the union acts industrially, or, a person who because of incapacity is unable to obtain that employment, and lastly, persons who have been actually employed in capacities which entitles [sic] the union to industrially represent them but who have been elected or appointed temporarily to a full time office in the union being an "office" within the meaning of that term as defined by the Act." 77 It further contended that, so construed, the rule was "a rational and obvious attempt" to achieve the objective of ensuring that persons who hold elected positions in the Union are persons who are working "in the core industrial coverage" of the Union and thus better placed than others "to know and understand the workplace problems faced by its members." I observe incidentally that it is far from clear to me why a member of the Union who during the period of twelve months immediately preceding the closing date for lodging nominations had been unemployed for a significant period, or been an elected officer of the Union, would necessarily be expected to be better placed to know and understand the workplace problems faced by members of the Union than an appointed officer of the Union. 78 The Union further contended that a detailed examination of the history of s 132 of the Conciliation and Arbitration Act 1904 does not support the interpretation which von Doussa J placed on the Union rules. That history includes the following. 79 The Commonwealth Conciliation and Arbitration Act 1904 (Cth) (Act No. 13 of 1904) ("the Conciliation and Arbitration Act") by s 55(1) allowed for the registration of certain types of association. Those associations were: "(a) Any association of employers in or in connexion with any industry, who have in the aggregate, throughout the six months next preceding the application for registration, employed on an average taken per month not less than one hundred employees in that industry; and (b) Any association of not less than one hundred employees in or in connexion with any industry." 80 The Commonwealth Conciliation and Arbitration Act (No. 2) 1914 (Cth) (Act No. 18 of 1914) amended s 55(1) of the Conciliation and Arbitration Act by adding qualifying words to the ends of each of paragraphs (a) and (b) to allow registered organisations to admit their appointed officers to membership. The following words were added at the end of s 55(1)(b): "together with such other persons, whether employees in the industry or not, as have been appointed officers of the association and admitted as members thereof." 81 By Act No. 35 of 1915, paragraph (c) was added to s 55(1) of the Conciliation and Arbitration Act to allow for the registration of craft unions and conglomerate unions constituted by reference to the industry of the employer, the industry of the employees or both. Paragraph (c) was in the following terms: "(c) Any association of not less than one hundred employees engaged in any industrial pursuit or pursuits whatever, together with such other persons, whether employees engaged in any industrial pursuit or pursuits or not, as have been appointed officers of the association and admitted as members thereof." 82 In Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1919) 26 CLR 508 at 569 Isaacs and Rich JJ expressed the view that s 55(1)(c) of the Commonwealth Conciliation and Arbitration Act was valid as - "Parliament has full power to permit industrial employees to group themselves in any way it thinks convenient to carry out arbitration and conciliation for the prevention or settlement of industrial disputes extending beyond the limits of any one State." 83 By Act No. 10 of 1947, s 55 of the Conciliation and Arbitration Act was renumbered as s 70. Act No. 44 of 1956 amended s 70(1) of the Conciliation and Arbitration Act by, amongst other things, omitting paragraphs (b) and (c) and replacing them with the following paragraphs: "(b) Any association of not less than one hundred employees in or in connexion with any industry, together with other persons, whether employees in the industry or not, who are officers of the association and have been admitted as members of the association; and (c) Any association of not less than one hundred employees engaged in an industrial pursuit or pursuits, together with other persons, whether employees engaged in an industrial pursuit or pursuits or not, who are officers of the association and have been admitted as members of the association." Act No. 44 of 1956 also re-numbered the sections of the Conciliation and Arbitration Act so that s 70 became s 132. 84 Section 132(1) of the Conciliation and Arbitration Act was amended in Act No. 138 of 1973 by the omission of paragraphs (b) and (c) and the substitution of the following paragraphs: "(b) Any association the members of which include not less than one hundred employees in or in connexion with any industry and the other members, if any, of which are - (i) officers of the association; (ii) persons who follow an occupation in or in connexion with that industry; or (iii) persons who are employees who are qualified to be employed in or in connexion with that industry, but does not include an association that has members referred to in sub-paragraph (ii) or (iii) unless the association is effectively representative of the members who are employees in or in connexion with that industry; and (c) Any association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits and the other members, if any, of which are - (i) officers of the association; (ii) persons engaged in that industrial pursuit or one of those industrial pursuits otherwise than as employees; or (iii) persons who are qualified to be engaged as employees in that industrial pursuit or in one of those industrial pursuits, but does not include an association which has members referred to in sub-paragraph (ii) or (iii) unless the association is effectively representative of the members who are employees engaged in that industrial pursuit or those industrial pursuits." 85 The Union has suggested that the importance of the historical analysis of s 132 of the Conciliation and Arbitration Act is that it demonstrates that: "under the legislation an organisation of employees could only be registered in relation to persons who were employed in certain industrial capacities and the only way that other persons could become members when not employed in one of those industrial capacities was by being appointed to an office in an organisation and being admitted to membership thereof." That is, as I understand it, the Union contends that an officer of an association is not, within the meaning of s 132, an employee in or in connexion with an industry and should not be so regarded for the purposes of rule 49.33 of the Union rules. 86 Ms Perkins, on the other hand, contended that the only relevance of the history of s 132 is that it reflects the technical view taken until recently by the authorities of the term "industry" and of what employees were employed "in or in connexion with" an industry. Reference was made to Pitfield v Franki (1970) 123 CLR 448 in which the High Court held that persons employed by fire-fighting authorities in the various States in or in connection with the prevention, suppression or extinguishment of fires were not employees "in or in connexion with any industry" or engaged in an "industrial pursuit" within the meaning of s 132(1)(b) of the Conciliation and Arbitration Act. This narrow view of the term "industry" was subsequently rejected by the High Court in The Queen v Coldham; ex parte The Australian Social Welfare Union (1983) 153 CLR 297. 87 I have found consideration of the history of s 132 of Conciliation and Arbitration Act of limited assistance in construing rule 49.33(a)(iv) of the Union Rules, finding greater assistance in the language of the rule itself seen in the context of the Union Rules as a whole. 88 Union rules are to be construed broadly, not on the basis that they are a technical legal instrument, but on the basis that they are intended as: "[t]he plain and business-like statement of members of the trades concerned, combining for mutual support, and setting down the terms of their combination in language which is applicable to their situation and intended (subject to the presumptive intendment of legality) to be understood apart from technical rules of interpretation." (per Isaccs J in Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 at 559). 89 It seems to me that rule 49.33(a)(iv) read as a whole must be understood as being intended to achieve more than merely ensuring that a nominee for election has been a member of the Union during the period of twelve months immediately preceding the closing date for lodging nominations. So much is achieved by the preceding paragraphs of the rule. I accept the submission of the Union that the intention disclosed by rule 49.33(a)(iv)A and B is to exclude from those otherwise qualified to be nominated for election persons who did not during the preceding twelve months work in a capacity in which the Union was able to represent them industrially - unless they were unable to obtain such work by reason of illness, incapacity or inability to obtain employment. That is, I accept that rule 49.33(a)(iv)A reflects a distinction, which may also be seen in s 132 of the Conciliation and Arbitration Act, between employees in or in connection with an industry and other persons entitled to be members of the association. Such a construction of rule 49.33(a)(iv) fits harmoniously with rule 2.2 of the PKIU Rules, which is set out above, and also with rule 1H(a)(ii) of the Union Rules which reflects the terms of rule 2.2 of the former PKIU Rules. 90 On this construction of rule 49.33(a)(iv) Ms Perkins did not satisfy its requirements whatever meaning is attributed to the words "during the period of 12 months immediately preceding the closing date for lodging nominations." During the whole of the period of twelve months immediately preceding the closing date for nominations Ms Perkins had been employed as a non-elected salaried officer of the Union. It is thus not necessary for me to determine on this application whether the words "during the period …" mean during the whole of the period or merely during any part of the period. 91 I find that Ms Perkins was not "employed as an employee in a trade or calling or branch thereof or in connection with which the Union is registered" within the meaning of rule 49.33(a)(iv)A of the Union Rules. Nor did she satisfy either of paragraphs B or C of rule 49.33(a)(iv). She was not during the relevant period unemployed or engaged in a full-time elected office of the Union. Consequently Ms Perkins was not eligible for nomination for election to the position to which she was declared to be elected. I conclude that an invalidity occurred in the election of Ms Perkins to the position of Organiser, Printing Division-NSW Branch of the Union.

Section 258 of the Act 92 So far as is here relevant, s 258 of the Act provides as follows: "258 (1) An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Court for a determination of the question whether an invalidity has occurred in: (a) … (b) an election … in the organisation or a branch of the organisation; or (c) … (2) On an application under subsection (1), the Court may make such declaration as it considers proper. (3) Where, in a proceeding under subsection (1) the Court finds that an invalidity of the kind referred to in that subsection has occurred, the Court may make such order as it considers appropriate: (a) to rectify the invalidity or cause it to be rectified; (b) to negative, modify or cause to be modified the consequences in law of the invalidity; or (c) to validate any act, matter or thing rendered invalid by or because of the invalidity. (4) Where an order is made under subsection (3), the Court may give give such ancillary or consequential directions as it considers appropriate. (5) The Court shall not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to: (a) the organisation; (b) any member or creditor of the organisation; or (c) any person having dealings with the organisation." 93 Section 258 is remedial in nature and a broad view is to be taken of the powers conferred by the section (Re Food Preservers' Union of Australia (1988) 79 ALR 138 per Northrop and Ryan JJ at 144; Gordon v Carroll at 160-163). 94 Both Mr Cameron and Ms Perkins have sought relief under s 258 of the Act. Mr Cameron is a member of the Union. Ms Perkins is also, as I have found, a member of the Union. In addition she has a "sufficient interest" in relation to the Union within the meaning of s 258 of the Act by reason of the matters of fact already outlined. 95 The orders sought by Mr Cameron under s 258 are premised on the possibility that the Court may find that Ms Perkins was not eligible to become a member of the Union at the time of the Amalgamation. Whilst I have found that Ms Perkins did not at the time of the Amalgamation become a member of the Union, I have also found that her admission to membership of the PKIU, and consequently her admission to membership of the Union, has been subsequently validated by s 256 of the Act. I am satisfied that none of the orders sought by Mr Cameron in reliance on s 258 of the Act is appropriate to be made. 96 In the event that I should find, as I have, an invalidity in her election as an Organiser, Ms Perkins seeks an order that her election be validated. 97 It is necessary for consideration to be given first to the question of whether I may be satisfied that an order validating Ms Perkins' election would not do substantial injustice to the Union, any member or creditor of the Union or any person having dealings with the Union. 98 No suggestion has been made that any order that I might make under s 258 of the Act would do any injustice to any creditor of the Union or any person, not being a member of the Union, having dealings with the Union. I am satisfied that any order under s 258 would not do substantial or any injustice to these two classes of persons. 99 In considering whether or not an order validating Ms Perkins' election would do substantial injustice to the Union or any member of the Union, I particularly take into account the following factors: (a) Ms Perkins is to be regarded as having been a member of the PKIU with effect from 21 April 1994; (b) Her election was unopposed; (c) Although Ms Perkins was not at the time of her election, a person who was represented industrially by the Printing Division of the Union, her evidence disclosed that she had knowledge at that time of the industrial concerns of the ordinary members of the Printing Division; and (d) Ms Perkins has now acted in the position to which she was elected for more than twelve months. 100 The opposition of the Union, Mr Cameron and Mr Fohmsbee to the making of a validation order under s 258 of the Act was principally premised on the assumption that Ms Perkins was not at the time of her election eligible to be a member of the PKIU or the Union. I have found otherwise. 101 Having considered all of the circumstances touching upon Ms Perkins' election as an Organiser, I am satisfied that an order under s 258 of the Act would not do substantial injustice to the Union or any members of the Union. 102 I must further consider whether it would be an appropriate exercise of the discretion vested in the Court by s 258(3) to validate Ms Perkins' election as an Organiser. Nothing before me suggests that either Ms Perkins or her nominator was aware that she might be ineligible for election or in any way acted dishonestly. Being satisfied that no person or body referred to in s 258(5) of the Act will suffer substantial injustice if Ms Perkins' election is validated, and further being satisfied that neither Ms Perkins' nominator nor Ms Perkins acted other than bona fide in making and accepting her nomination for election, I find that it is appropriate for Ms Perkins' election to be validated. So as to negative the consequences in law of the invalidity of her election, such validation should have effect as from the date of her election. 103 In the circumstances it is not appropriate for any order to be made in Action No. NG 894 of 1997 as a consequence of the hearing and determination of the election inquiry. The appropriate order in Action No. 342 of 1998 is that the application be dismissed. 104 Out of an abundance of caution, I also consider that it would be appropriate in the circumstances to declare that no invalidity has occurred in the management of the Union by reason of Ms Perkins having been treated and accepted as a member of the Union since 1 February 1995. In view of the validation of her membership by s 256 of the Act, I am satisfied that this declaration would not do substantial or any injustice to the Union, the members or creditors of the Union or any person having dealings with the Union. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for Mr Fohmsbee: Mr J.H. Pearce

Solicitor for Mr Fohmsbee: Paul Murphy Solicitor

Counsel for Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union:

Mr W.R. Haylen QC and Ms N. Rudland Solicitor for Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union:

Taylor & Scott Lawyers Counsel for Ms Perkins: Mr S. Rothman SC

Solicitor for Ms Perkins: Geoffrey Edwards & Co

Counsel for the AEC: Mr D. Godwin

Solicitor for the AEC: Australian Government Solicitor

Date of Hearing: 12 December 1997; 31 August 1998, 1 September 1998; 10 February 1999; written submissions February 1999.

Date of Judgment: 22 April 1999