McLeish, David v Faure, C.W. & Ors [1979] FCA 88

a) That on or before Friday 14 September 1979 the National Secretary or in his absence the Assistant National Secretary and the President or in his i absence the Vice-President convene a meeting of the Mational Executive to be held at the registeorert office of the Union on or before Friday 28 September 1979 for the purpose of calling a special meeting rs

the Assistant National Secretary pursuant to Rule 14 of the rules of the Urion give notice

in writing of the meeting of the National Executive and the National Secretary or Assistant National Secretary respectively shall forward

That each of the respondents being a member of the National Executive take all steps necessary to ensure

That each of the respondents being a member of the National Executive shall ensure that the meeting

of the National Executive call a special meeting of the National Council to be held at the registered office of the Union on or before Friday 9 November 19792 for the purpose of altering the rules of the

That the National Secretary or in his absence the Assistant National Secretary pursuant to Rule 16

of the rules of the Union prepare an agenda paper prior to that meeting and include in that agenda

That the National Secretary or in his absence the Assistant National Secretary shall on or before Friday 5 October 1979 give notice in writing of the speciel meeting of tre National Council to the claimant and to each of the respondents and shall forward with the notice

copy of this order and shall at the same time forward to each branch of the Union a copy of the agenda paper and a copy of this

That each of the respondents take all steps necessary to ensure a quorum at the special

That sub-rule (d) be deleted and the following be inserted in lieu thereof:

"(a) At all Council meetangs each Branch shail have the raght through its delegate or delegates to exercise one vote for each five hundred members of the Branch. The National Secretary shall have the right to exercise two votes."

(ii) Rule 10 - Powers and Duties of National Council

a ballot of all financial members on any question as provided by Rule 20. The National Secretary shall forthwith hold such ballot and the decision of the members so ascertained by ballot shall be binding upon the National Council and all officers and members of the Union" be deleted from the first paragraph and the words "subject to any referendum that may be conducted pursuant to Rule 20" be

inserted in lieu thereof. (iii) Rule 13 - National Executive

That Rule 13 be deleted and the following be inserted in lieu thereof:

"The National Executive shall consist of the President, Vice-President, National Secretary and members elected from the Wational Conference delegates. Each Branch shall be entitled to representation on the National Executive by cne Executive member for which purpose the President and Vice-President shall ba deemed to represent the Branch of which they are members and the Wational Secretary shall

be deemed not to represent any Branch, providing that any Branch having in excess of 10% of the membership as calculated under sub-rule (e) of Rule 9

• National Council, shall be entitled to one additional Executive member for each each additional 10% of the membership of the Union possessed by that Branch."

That the following new sub-rule be added to Rule 14:

"(g) The National Executive shall have power to appoint a Returning Officer for the purpose of conducting such referenda as may be requested pursuant to Rule 20."

That Rule 20 be deleted and the following be inserted in lieu thereof:

"20. Control of National Executive and National Council by Members.

(b) members totalling 5% of the total financial membership of the Union by petition,

shall request that a referendum of members be held on a proposal that National Council or the National Executive take or refrain from taking any specified action or adopt or refrain from adopting any specified policy in the conduct of the Union's business the National Executive shail within fourteen days appoint a Return- ing Officer (not being the holder of any other office in nor an employee

of the Union or a Branch or sub-branch of the Union) who shall forthwith proceed to conduct a referendum of members in all branches on the proposal. Such referendum shall be by secret ballot of all of the members of the Union who are financial for the quarter preceding the date of the commencement of the ballot, provided that if a proposal, the subject of a request under this Rule be adopted by the National Council or the National Executive as the case may be, no referendum shall he held under this Rule.

The result of the referendum shall be given effect to by the National Executive or the National Council as the case mey require.

1. That upon the National Council altering the rules of the Union as aforesaid the National Secretary oer in his absence the Assistant National Secretary forthwith shall file particulars of the aiteration in the office of the Industrial Registrar and shall take all reasonable steps to obtain the certificate

ef the Industrial Registrar required under s.139(4)

of the Conciliation and Arbitration Act 1904 as amended.

3. Liberty be granted to any party to apply on three days

notice to the Court and to the other parties to have this

IN THE MATTER of the Conciliation and Arbitration Act 1904

AND IN THE MATTER of an application pursuant to Section 140 and Section 141 of the said Act.

AND 1N THE MATTER of an application pursuant to Section 171 Cc of the said Act.

J.B. SWEENEY J. EVATT J. NORTHROP J. 11 September, 1979

These three matters all arise out of a consideration of the rules of the Electrical Trades Union of Australia. 'These rules have been before the Court in a number of recent matters. In the judgment of the Court in McLeish -v- Faure & Ors matter No.10 of 1979, judgment was given on 23 July last. In that judgment the history of the litigation was briefly set out.

At that stage the dispute between the parties was whether the National Council was obliged to give effect to the results of a ballot of the members voting on a proposed amendment to

the rules. The Court was then asked to determine whether the proposed amendment would if adopted be in disconformity with s.140 of the Act. We were advised that if this question was decided the parties would be able to confer and that no further difficulties would appear to arise.

The Court for reasons then set out made a declaration in the following terms:

"Pursuant to s.21 of the Federal Court of Australia Act 1976 the Court declares that

the alteration to the rules of the Electrical Trades Union of Australia approved by a majority of financial members of the Union at a ballot which was completed on 23 March 1979.

is not contrary to s.140(1) of the Conciliation and Arbitcation Act i904 as amended. "

It now appears that the discussions contemplated have not taken place and that the parties are still at arms

length. The Court records its regret that this should be so.

It has in previous proceedings adopted courses which seem best calculated to avoid embarrassment to the Union by, for example, after finding that r.9(d) in matter No.22

of 1978 was contrary to the Conciliation and Arbitration Act 1904 adjourning the proceedings rather than making a declaration. This sort of action seems however, not to have been appreciated and we regret that there has been

The question we are now faced with is whether under the rules a question of amendment of the rules may be referred to the members by referendum and whether the results of such a referendum require the National Council so to alter the rules as to conform with the expressed

The relevant rules are 10 and 57 which relevant parts of were set out in the judgment of 23 July 1979.

"(a) Subject to the provisions of any State Trade Union Act so far as members of the Branch to which such Act applies, the Natzonal Council shall act in all matters referred to it by a Branch, and shall decide in all cases for which no provision 1s made in these Rules, and shall have the general control and conduct of the business and affairs of the Union. The actions and decisions of the National Council shall be final unless negatived, as provided in Rule 20, or otherwise dealt with by a majority of the members of the Union by a referendum

The submission made by Mr Grey and Mr Kenzie of Counsel is that having regard to the nature and language of Rule 57 a rule may not be altered except by a meeting of the National Council. It is argued that reading this rule with y.1l0, r.10 must be read down. While r.10 uses the words of the National Council "that its decision on all matters.... shall be final and binding on all members unless two branches shall demand a ballot of all financial members on any question", the rule goes on to provide in parayraph (a) "the actions ....

of the National Council shall be final unless negatived ....

or otherwise dealt with by a majority of the members of

In addition, the first paragraph of r.10 contains the words "the decision of the members as ascertained by ballot shall be binding upon the National Council and all

Looking at the rules as a whole the position seems to us quite clear. The power to make new rules is in our view drawn from r.10(b)(15) and it 1s subject to the provisions as to referendum and ballots of financial members set out earlier in r.10. The purpose of r.57 and the only thing achieved by it 1s to prevent the National Council exercising the power given to alter rules by correspondence,

The terms "by a meeting" and "at a meeting" seems to us identical in meaning. What is done or what cannot be done except by a meeting also cannot be done except at a meeting. The phrase "by and at" used in r.57 does nothing more than add an emphasis to this and indeed is rather a draftsman's flourish. We are therefore of the opinion that a ballot of members having been held on the proposed amendments as set out in the judgment of 23 July last, the National Council and all officers and members of the Union, including

the executive and Council members are bound to give effect to the decision of the members ascertained by the ballot and the order we propose 1s designed to ensure that

the obligations imposed by the rules are carried out.

s and the three @ true copy of the " - aw there. Keasens "7~ duagment herein of bss Tonours 5s 7B Sweerte 4 Eve, tt