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[1998] FCA 1282
Federal Court of Australia
1998-10-12
Doussa J
Original judgment source is linked above.
REASONS FOR JUDGMENT This is an application for an enquiry into an election for the office of State President of the South Australian Branch of the Automotive Food Metals Engineering Printing and Kindred Industries Union ("the Union"), the result of which was declared on 1 December 1997. Nominations for the position of State President of the South Australian Branch closed on 2 September 1997. Two members of the Union were nominated for the office, Mr Ian Curry and Mr Craig Larner. Following an election conducted by the State Returning Officer, Mr Curry was declared to be elected as the State President. The present application is made by the unsuccessful candidate, Mr Larner. He contends that an irregularity occurred in the election process, namely that Mr Curry was not eligible to be nominated for the office of State President of the South Australian Branch of the Union. This is the only irregularity alleged. The Rules of the Union are, in the words of counsel for Mr Larner, "long, confusing and at times complex and not easy to follow". The length and complexity of the Rules is the result, at least in part, of amalgamation of a number of unions which now comprise the Union, and the consolidation of their separate rules. Rule 2 makes provision for Elections and Voting. Rule 2, Part A, subrule 1 applies to the election of "offices within the union" including the office of State President. Subrule 4(a) requires each State Returning Officer once each four years to conduct an election for the office of State President (among other offices). Central to the eligibility of Mr Curry for nomination for the office of State President is subrule 4(b) of Part A of Rule 2. Subrule 4(b) reads: "(b) A member may be nominated as a candidate under this sub-rule if the member:- (i) has been a member for a continuous period of not less than 3 years immediately preceding the closing date for lodging nominations and, during the period of 12 months immediately preceding the closing date for lodging nominations was not unfinancial for a period longer than 3 months; (ii) is a financial member of the Union in the State at the closing date for lodging nominations; and (iii) was, during the period of 12 months immediately preceding the closing date for lodging nominations: (1) employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered; (2) unemployed on account of illness, incapacity or inability to obtain employment; or (3) engaged in a full-time office in the Union after having been elected or temporarily appointed thereto." There is no dispute that Mr Curry satisfied the qualifications required by subrule 4(b)(i) and (ii). The question is whether he satisfied the requirements of subrule 4(b)(iii), and in particular either paragraph 1 or 3. The facts are not in dispute. Mr Curry joined the Union (or its predecessor) in January 1978 when employed in work falling within the Union's eligibility rule, and has since remained a financial member. It is unnecessary to recite his work history from that time as the relevant period for consideration under subrule 4(b)(iii) is the 12 month period immediately preceding the closing date for lodging nominations, viz 2 September 1997. In July 1996 Mr Curry was appointed to the position of "Administration Officer" with the Union. This is not a position expressly provided for in the Rules. The title "Administration Officer" was one assigned to the position to which he was appointed in a notice which advertised a vacant staff position, and in a duty statement prepared in connection with that position. The position was advertised in June 1996 as a "six month contract position for an Administration Officer". A document which set out the selection criteria gave the following information about the position: "Responsible to the State Secretary and NAC, the successful candidate for the position will ensure the smooth day-to-day administration of the office especially the design, establishment and effective implementation of administrative systems and procedures. The position will require extensive liaison to ensure that the aims of the Union are supported through its administrative functions. The position will cease after a minimum of 6 months. Internal applicants are advised that, if successful, their existing positions will be held open until the completion of the 6 months." The duty statement specified that the holder of the position had a range of administrative duties relating to membership dues and records, accounts, day-to-day staff administration, office purchasing, design and implementation of effective office systems, preparation of reports for the State Secretary, State Administration Committee and State Council on administration matters, the performance of certain tasks requested by the State Secretary, and to assist the State and Divisional Secretaries as required. Mr Curry took up his appointment to the full-time position of Administration Officer on 8 July 1996, and continued in that position throughout the 12 months immediately preceding the closing date for nominations. Although the initial appointment was for a six month period, the appointment was subsequently extended. In 1990 Mr Curry was also elected to the following positions within the Union, and continued to hold those positions (after further elections) throughout the 12 month period preceding 2 September 1997, namely as delegate to the State Conference, as delegate to the State Council, and as a member of the State Administration Committee. These positions involved periodic attendance at meetings of the groups involved, and did not involve full-time attendance to duties. It is not disputed that these positions constituted "offices" within the Union, but as each of them was not "a full-time office in the Union" the holding of these offices did not render Mr Curry eligible for nomination under subrule 4(b)(iii)(3). The question for decision is whether as the holder of the full-time position of Administration Officer in the Union, Mr Curry fulfilled the qualifications of eligibility under either paragraph (1) or (3) of subrule 4(b)(iii) namely, whether he was in the relevant period either: "1. employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered." or "3. engaged in a full-time office in the Union after having been elected or temporarily appointed thereto." Counsel for Mr Larner contended that Mr Curry did not fulfil the eligibility requirements of either of these provisions. Counsel for Mr Curry contended that Mr Curry fulfilled the requirements. Counsel for Mr Curry argued the question arising under paragraph (3) first, endeavouring to demonstrate that Mr Curry was not engaged in a "full-time office in the Union" within the meaning of that expression in subrule 4(b)(iii)(3). Counsel for Mr Curry, without formally conceding the point, only faintly argued to the contrary. Mr Curry rested his case on eligibility under subrule 4(b)(iii)(1).
In my opinion Mr Curry did not fulfil the requirements of subrule 4(b)(iii)(3). As will appear from references to the Rules made later in these reasons for judgment, the term "officer" is used in the Rules at times to refer to the holder of an elected office and at times to the position of a salaried employee appointed by either the National Council or a State Council as a "salaried officer". However in subrule 4(b)(iii)(3) I think that it is clear that "a full-time office in the Union" refers to the holder of one of the offices referred to in Rule 2, Part A, subrule 1, that is to one or other of the following offices: National President, National Secretary, Assistant National Secretary, National Organiser, State President, State Secretary, Assistant State Secretary, State Organiser, Regional Delegate to National Conference or a Zone Representative to State Conference. This conclusion is compelled by the words "…after having been elected or temporarily appointed thereto" which qualify the eligibility requirement that a member be "engaged in a full-time office in the Union". Each of the offices just identified are elected offices: Rule 2 Part A, but in the event of a vacancy occurring between elections, subrules 12(ac) to 12(af) make provision for the vacancy to be filled by a temporary appointment (such a rule being authorised by s 200 of the Workplace Relations Act 1996). The qualification that for the purposes of subrule 4(b)(iii)(3) that the person be engaged in a full-time office "after having been elected or temporarily appointed thereto" is not apt to describe an appointment by the National Council or a State Council to a salaried staff position within the Union. The critical question is whether Mr Curry, during the relevant period, was "employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered". In my opinion Mr Curry fulfilled this requirement. Rule 1 contains the eligibility rules. Subrule 1A relevantly provides: "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 calling or branches thereof: … (e) Such other persons, whether employees in the industries associated with the constitution or not, who have been appointed officers of the Union and admitted as members thereof or whilst financial members of the Union have been elected as fulltime representatives of any working class organisation to which the Union is affiliated, or as a working class member of Parliament, or as a fulltime representative on any Government Tribunal or Board, in the interests of the Union or Unions. Together with such trades as may be represented by trade unions hereafter amalgamating with the Union." The eligibility for membership provisions in subrule 1A specify eligibility by reference to the fact of a person's employment or usual employment in or in connection with specified trades or callings or branches thereof. Rule 1, in a number of its provisions, recognises a class of eligible persons who may not be employed in the industries in connection with which the Union and its predecessors were registered in the days when s 132 of the Conciliation and Arbitration Act 1904 (Cth) required that a registered organisation be an association registered in connection with a specified industry (a requirement which is now only optional under s 195(1)(a) of the Workplace Relations Act 1996). In particular subrules 1A(e), 1B, 1E, 1G(b) and (c), and 1H(a)(ii) each provide for the membership of employees, whether employees in industries elsewhere nominated in the Rules or not, who have been appointed officers of the Union and admitted as members thereof. In the present case the employment of Mr Curry as an Administration Officer within the Union was not employment in any of the industries specified in Rule 1, subrule 2. However the identity of the industries in respect of which an organisation is registered is not definitive of the eligibility of persons to be members of the organisation if the eligibility rules of the constitution of the organisation travel beyond the bounds of the specified industries. This was the case even under the Conciliation and Arbitration Act 1904 when organisations were registered in respect of particular industries: see R v Dunlop Rubber Australia Limited & Others; Ex parte Federated Miscellaneous Workers' Union of Australia (1956) 97 CLR 71 and The Queen v Watson; Ex parte Australian Workers' Union (1972)128 CLR 77 at 79. In the present case the eligibility requirements of Rule 1, subrules 1A to 1L, are not predicated on employment in specified industries, but on employment in or in connection with specified "trades or calling or branches thereof". Included among the nominated callings are those of people "appointed officers of the Union and admitted as members thereof" whether or not they are employed in the industries specified in Rule 1, subrule 2. Insofar as Rule 2, Part A subrule 4(b)(iii)(1) requires that a person eligible for election be an employee in a "trade or calling or branch thereof in or in connection with which the Union is registered", in my opinion Mr Curry fulfilled that requirement if he came within the class of employees "who have been appointed officers of the Union" within the meaning of Rule 1, subrule 1A(e). As already indicated the notion of an "office" is used with different meanings in the Rules. Rule 2 specifies a number of "offices" to which people are appointed by election, or by temporary appointment in the case of casual vacancies. A holder of one of these offices is frequently referred to as an "officer" in the Rules: see for example Rule 3, subrules 9 and 11; [p41] Rule 4, subrule 1(h); [p42] Rule 17, subrule 6; [p58] Rule 22, subrule 4 [p64] and Rule 30, subrule 4 [p73]. However, the term "officer" is also used in relation to salaried officers who are not elected officials but are employees of the Union appointed by the National Council or a State Council: see Rule 36. The term "officer" is used elsewhere in the Rules to include both elected officials and salaried officers: see for example Rule 15, subrule 2; [p 55] Rule 17, subrule 6; Rule 22, subrule 4; and Rule 30, subrule 5. 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 than 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. Counsel for Mr Larner argues that subrule 1A(e) is devised (inter alia) to permit continuing membership for full-time elected officers who by definition cannot otherwise continue to satisfy the eligibility rule because they cease, upon election as a full-time official, to be employed in an industry specified in Rule 1, subrule 2 (the remnants of the industry rule). I have already indicated my view that eligibility for membership under the Rules is predicated not upon employment in an industry, but by employment in or in connection with a specified trade or calling or branch thereof. However, even if greater emphasis is given to Rule 1, subrule 2 than I think is appropriate, the submission does not satisfactorily explain the meaning and purpose of subrule 1A(e). The critical words - "who have been appointed officers of the Union…" - are not qualified by any requirement that the appointment be as a full-time officer. Further, eligibility for election under Rule 2 to one of the elected offices is to be determined at the time of nomination. A person duly qualified at the time of nomination, who is subsequently elected, does not become disqualified under the Rules if during the period in office the elected person ceases to fulfil the nomination requirements: see Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340 at 346-348 and Ransley v Australian Public Service Association (Fourth Division Officers) Tasmanian Branch (1985) 12 IR 55 at 64. Thus, the submission does not provide a satisfactory guide to the meaning and purpose of subrule 1A(e).
For these reasons I consider no irregularity occurred in the election of Mr Curry. The application for an enquiry should be dismissed. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa
Counsel for the Applicant: Mr T M McRae
Solicitor for the Applicant: Michael W Speck & Co.
Counsel for the Respondent: Mr P D Hannon
Solicitor for the Respondent: Duncan and Hannon
Counsel for the Australian Electoral Commission Mr R E McClure
Solicitor for the Australian Electoral Commission Australian Government Solicitor
Date of Hearing: 1 October 1998
Date of Judgment: 12 October 1998
R
Dunlop Rubber Australia Limited & Others; Ex parte Federated Miscellaneous Workers' Union of Australia
(1956) 97 CLR 71
(1958) 3 FLR 405
(1969) 15 FLR 147
(1978) 46 FLR 340
(1985) 12 IR 55