Molomby, thomas v William Gibbs & ors [1979] FCA 47

AND IN THA MATTER of an application under Section 140 and Section 14i of the said Act

AND WILLIAM GIBDS, CLEMI™T HOLDSWOrTh, PETER WLES, STDuE: ROVIVS, Twice JUSSTN e

THM AUSTRAT CV BROALDIN ST TC COMMISSION SPAT ASSCCLATICT

These proceedings brought under s.140 and s.141 of the Conciliation and Arbitration Act, 1904 ("the Act") concern the affairs of the Australian Broadcasting Commission Staff

The applicant, Mr. Molomby, is a member of the Association and the proceedings are brought against five persons who are the officers and as a consequence the federal interstate executive of the Asscciaticn. The Association 1s also a respondent in respect of so much of the proceedings as relate to s.140. The applicant seeks the following orders:

1. 'That the personal respondents perform and observe the rules of the Australian Broadcasting Commission

Staff Association ("the Association") by refraining from appointing an Industrial Advocate for the Association until or unless a decision 1s made by the Federal conference of the Association to appoint an Industrial Advocate or to delegate the power to do so to the personal respondents.

void in that 1t imposes upon members of the Association conditions, obligations or restrictions which, having regard to the objects of the conciliation and Arbitration Act, 1904 and the purposes of the regis- - tration of organizations under the said Act are oppressive, unreasonable or unjust.

That Rule 17(a) of the rules of the Association is void in that it 1s contrary to or fails to make a provision required by Regulation 115(1)(A}(wv) made under the Conciliation and Arbitration Act, 1904.

the rules of the Association by ceasing to take any steps in or in relation to the purported vote pursuant to Rule 17(a) arising from the letter of 20th itarch, 1979 sent by the respondent Rowers to Branch secret- aries of the Association and by treating this purported vote and any result obtained therefrom as being null and void.

The grounds on which the application is based are stated to be:

The procedure set out in Rule 17(a) for a postal ballot of branch committees 1s harsh and oppressive, and not in accordance with section 140(1) of the Act, in that

(1) 1t allows a decision of the Federal Conference, the supreme governing body of the Associaticn, to be rescinded by a vote of Branch committees, which are subordinate bodies.

(i12) the postal ballot procedure of Rule 17(a), ain allowing only one vote to each branch, is harsh and oppressive on account of being

(a) anconsistent with the terms of Rule 19(b), which allocates Federal Conference delegates a voting strength in proportion to the membership in their branches.

(b) contrary to the terms of Section 140(1) of the Act in that it gives no adequate recog- nition to the Larger number of members in some branches.

2. The power to appoint an industrial Advocate age a full-time employce of the Association resides Ly vartue of Rule 14 solely in the Federal Conference, unless there has becn a delegation of the power under kule 14(1) and there has been no such delegation.

During the hearing some further matter was put alleging that rule 17(a) should also be held not to be in conformity with the requirements of s.140: (1) kecause the rule as a whole was so vague and uncertain; and (2) because it was antithetical

It was further put that rule 17(a) did not apply so as co allow the rescission of a decision taken by the federal cor-

I deal first with the application seeking the performance and observance of rules of the organization. The complaint hexe is that while the rules vest the power to appoint emplovees in the federal conference and that body has power to delegate any of its powers, there has been no delegation, yet the federal

executive 1S proposing to appoint an industrial officer.

Looking briefly at the structure of the organization, the supreme governing body is the federal conference. It consists of the five federal officers and one delegate from cach branch. It 1s to meet at least once in everv eighteen months and there are provisions for the calling of special meetings of the conference. A system of card voting applies at the conference.

Each delegate has one vote for every fifty fanancial members

or part thereof in the branch of which he 1s a delegate. The officers have no primary vote but the federal president does have a casting vote. No motion can be carried at a meeting of federal conference unless the delegetes cf at least three branches vote in favour of such motion. There 1s also a federal council which is the committee of management of the Association. It con- sists of the five federal officers and one delegate from each branch. The officers and the delegates have one vote only each. The rules also provide for a federal interstate executive. 1t is composed in the same way as the federal council and voting prov.i- sions are in the same terms. Branches exist in six States and

each branch has officers and a conmittee of management.

The first question to be determined is whether there 1s power in the five respondents to appoint employees of the Association. What 1s really in dispute is the source of that power. The ccon- ference 1s the supreme governing body end is given very wide powers in rule 14. These include power to take any action in connection with the rules and objects of the Association and power to determine any matter and conduct any business covering or affecting the Association. There is also specific power provided in rule 14(d), (e) and (1) 1n the following terms:

(d) To appoint and determine the salary of any employee of Federal council

(e) To appoint, suspend, xemove or fine any employee or member.

(1) To delegate any of its powers to any two or more members or to any Federal Body of the ssoc1ation.

Wide general powers are given to the federal council and to the federal interstate executive but the specific powers given in 14(d) and (e) do not appear in the powers of the two latter bodies. In the case of the interstate executive 1t is specific- ally provided that a weeting of the interstate executive shall have power delegated to it from time to time by federal confer- ence provided that it shall nct exercise any of those powers vested 3n federal conference in terms of sub-clauses ...(d),

(e) and (i) ... of rule 14. Wide general powers are also given to the federal council but again there is no specific power such as those in rule 14(da})(e) and (1). It has however power to delegate to the federal executive committee such of its own

Looking at the rules I think the clear source of the power to

appoint staff is rule 14(da) and (e). In The King v. Wallis

78 C.L.R. 529 Dixon J., as he then was, said in dealing with the Act and provisions of the Act in general terms and other provisions in specific terms:

"The general power of a conciliation commissioner to make an order or award determining a disoute is to

be found in s.3%. The power is expressed in abstract terms without specifying or indicating what the deter- mination may cover or what the award or order shall

or may provide. Upon mactez=s witn reference to which the Act does not elsewhere specify or indicate what

may or shall be done by an award or order, this general power 1S properly interpreted as enabling the arbitrator to make any provision he thinks fit that 1s relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.

But upon some matters the Act does speak with more particularity. If it cenfers a spe#cirtic power with respect to a limited =' bject or specifies a manner of dealing with it or othernise provides what the duty or authority of the arbitrator snall be, then upsn

ordinary principles of interprecation the provis2 an which that 1s done should be treated as the source of his authority over the matter, notwithstanding

same matter mught have been implied in or covered by the general authority given by s.38. This accords with the general principles of anterpretation enbedied in the ma,im expressum facii cessare tacicum and in the proposition that an enactment in affirmative words appointing a course to be followed usually inay be understood as importing a neqative, namely, that the same matter is not to be done according to some other course,"

Applying that principle the scurce of the power to appoint staff 1s in the specific rule 14(d) and (e). These powers may be delegated to any two or more members or to any federal body of the association (r.14). Wowever the term "federal body of th: association" by virtue of the provision in rule 23(a)(d)(1) could in this case not include the federal interstate executive. Since the power is vested in the federal con"erence by the specific terms it 18 not vested in it or in eny other body by

general terms which may be used in describing powers.

In these circumstances unless there has beén a delegation the power to appoint staff can be exercised only hy the federal

The issue in this case arises over a proposal to appoint an

andustrial officer and it seems that it is the intention of th

federal executive to take steps to f111 that office, In the view I have taken of the rules, that cen only be done by the respondents if there has been a delegation of that power to them e1vther as

individuals or as the federal council. Evidence was put

before me that staff have been cppointed on previous occasions by the federal executive and that on ancther occasion the federal conference had empowercd the federal executive to examine the level of salaries and to make recommendations for discussion at a meeting of the federal council. It was commen ground that there was no delegation in terms to be found in the minutes of any of the relevant bodies. Tne evidence which has been pat before me seems to me quite consistert with a usurpation cf that power acquiesced tn on particular occasions but it does not in my view establish that any delegation of the power to appoint staff generally or staff to the position of indistrial officer

The term "delegation" seems to involve a conferring of an authority to do things which the federal conference would other- wise have to ado. One looks to find some degree of precision

in the delegation but where there 1s no specific delegation and only a series of acts which are equally consistent with deleaa- tion or no delegation, I find it urpussible to conclude that there has been a delegation and 1f so whether 1t was on a parti-

cular occasion for a particular purpose or generally.

In these circumstances in my view the applicant is entitled to

an order in the general terms of paragraph 1 of the Rule.

1 turn then to rule 17(a). This is a rule which seems co me quite difficult of interpretation. It seems designed to éllow

a decision to be taken of the federal conference without calling

a special meeting or waiting for the ordinary meeting of that body and 1t 1s in the following terms:

"When federal Conference 1s not in session, Federal Council may submit any matter to all Branch Committees for decision by vote, as provided in Rule 19. Such Matter shall be forwarded by post, lettergrein or tele~ gram to Pranch Committees. Each Branch Committee shall vote by post, lettergram or telegram before the closing time of such voting as fixed by Federal Council. The decision shall be binding as if such decision had been obtazrned by a vote at a regularly constituted meeting of Federal Conference,"

Rule 17(b) deals with the manner in which a plebiscite of members 1S to be taken. The difficvity in dealing with

rule 17(a) is that while it is dealing with a decision reached by postal ballot of branch committees, it seeks to uncorporate provisions of rule 19 which deals with proceedings at a meeting of delegates. Rule 19 is in the following terms:

19. (a) All decisions of Federal Conference shall be final, and remain in force until duly amended, varied, supplanted, superseded or annulled at a subsequent meeting of Federal conference or by a plebiscite of members of the Association.

(b) voting at Federal Conference shall be as follows: Each delegate shall have one vote for every fifty financial members, or part thereof, in the Branch wnich he represents; the Pederal Vice-Presidents, Federal Secretaiv and Federal Treasurer shall have power to move and second motions and amendments, but shall have no vote: the Federal President shall have a casting vote only.

(c) Notwithstanding anything contained in Rule 19(b), no motion shall be carried at a meeting of rederal conference unless the delegates of at least three Branches vote in favour of such motion.

It will be seen that rule 19(a) deals generally with the finality of decisions of federal conference. The final sentence of

rule 17(a) equates a decisicr of branch committees with a decision reached at a meeting of federal conference. Rule 19(b) provides a method of voting proportionate to the strength of

each branch at federal conference and rule 19(c) then provides that no motion shall be carried at a meeting of federal confer~ ence unless the delegates of at least three branches vote in favour. I think the rules can be reconciled and a meaning giver: to the rules by treating the words "as provided in rule 19" appearing in rule 17(a) as qualifying the word "vote" imucdiately preceding them. The effect of that would be that the provisions of 19(b) allow2zng one vote for every fifty financial members would apply as would the provision that the motion must be car- ried by at least three branches. It was agreed that unless the

words in rule 17(a) had this effect they were surplusage.

The difficulty of course arises because 1n one sense the two rules are dealing with different subject matters, the ona votine at a meeting of federal conference and the other voting by branch committees. However I feel the difference 1s more apparent than real. This Association like other organizations has a methced of organization to allow members appropriate participation in and control of the affairs of the union. Supreme control is vested in a conference consisting among others of elected delegates of the members of a particular branch but it 1s the members who

are there represented by the delcgates., Under rule 17(a) a

decision is reached by vote of branch comnittees hut each branch

committee represents the same members as does the delegate in

the other case. The reason for the appointment of delegates to represent members at a conference is the sheer impossibility of holding a conference of all members. The taking of a vote among branch committees is the tak>ng of a vote among representatives

of members. If the words "as provided by rule 19" are regarded

as qualifying "vote" then the effect is that the same group of members exercise the same proportionate influence but by a dif- ferent agent; 1n the one case the delegate, in the other case

the branch committee. The members have power over each since a general meeting of members may instruct a delegate and a general meeting of members may instruct the branch committee. In these circumstances I think the rules can be interpreted to give some meaning to words which would otherwise be surplusage and althougn the problem is not free from difficulty I think it 1s a legitimate interpretation of the expression of the words of members. Tf this be the proper interpretation of rules 17 and 19 then the attack

on rule 17 because 1t did not allow proportionate voting must fail.

The next ground alleged is that the rule was har¢ch and oppressive and not in accordance with s.140(1) of the Act because it allowed a decision of the federal conference, the supreme governing body of the Association, to be rescinded by a vote of branch committees which are subordinate bodies. I seé no reason why a decision of the federal conference should not be rescinded by members of the association and certainly no objection could be taken if this were done by plebiscite. Here it is done by a vote anong rep~

resentative bodies as agents of the members. When a vote is

being taken of the agents of the members and it 1s desired to secure a wider participation than would be afforded by a vote among delegates to the conference there seems to me no reason why bodies representative of the members should not be chosen as the electors. This is not a caso where the situatior is

fairly summarised by saying 1t is a vote of subordinate bodies which determines the issues. It 1s rather a case where the

members by their agents the branch committees exercise a vote

of the same relative value as the vote exercised in conference

In Gealing with the rule 1t was further submitted that a vote under rule 17(a) could not be taken which would amend, modify, supplant, supersede or annul a decision. By virtue of rule 19(a) 1t was argued that such steps to deal with a decision of federal conference could only be taken at a subsequent meeting of the federal conference or by a plebiscite of members. Such an inter~ pretation in my view docs not fully take into account the final sentence of rule 17(a). The decision by the ballot of brauch committees being as binding as if it had been obtained at a regularly constituted meeting of federal conference it must be able to have the effect of amending etc. a decision of a prior

During his reply, Mr. Shaw, counsel for the applicant, further submitted that rule 17(a) was not in conformity with the Act 1f it ancorporated the provisions cf 19(c). the ancorporation of

the provisions of 19(c), 1t was argued, would mean that the will

of a majority of members could be thwarted by a minority.

This may be so for a temporary period but I doubt whether it

is a completely accurate view because thcre do exist provisions for a plebiscite. In any event the issue was calsed very Late in the proceedings and I am reluctant to consider making a declaration in respect of a rule where the organization has

In the circumstances T think the attack on rule 17(a) fails

fu to make the orders sought in paragraphs Z, 3 and 4+

ef the application. The order of the Court will be as follows: That William Gibbs, Clement Holdsworth, Peter Wells, Sidney Bowers and Lawrence Jensen perform and observe the rules of the Australian Lroadcasting Commission Staff Association by refraining from appointing or purporting to appoint an industrial advocate for the

Association unless and until the federal conference of the Association delegates to them the power to do so.

'rhis form seers to me preferable to that sought in the Rule. It proposed an order that the personal respondents refrain from appointing an industrial advocate unless or until a decision was made by the federal conference to appoint an advocate or to delegate the power to do so to the personal respondents. If the conference does decide to appoint an industrial officer the appointment will be by it and no question will arise of any appointment by the personal resp- ondents. For this reason I think it preferable that no ref-

erence be made to any appointment by the federal conference,