Conciliation and Arbitration Act 1904 ss. 132, 140, 143 and 159

Industrial Relations Act 1988 ss. 188 and 218

Industrial Relations (Consequential Provisions) Act 1988 ss. 3, 5, 53 and 55.

Counsel for the applicant: Mr. Ashley Q.C. and Mr. Borenstein

Counsel for Jim Davis and Others: Mr. Shaw Q.C. and Mr. Marshall

Counsel for the TWUA: Mr. Black Q.C. and Mr. Howells

Solicitor for the TWUA: Ryan Carlisle Needham Thomas

the Returning Officer: Australian Government Solicitor

On 26th January 1989, the Industrial Registrar referred to the Court an application by Donald Alexander Porter for an inquiry into elections in the Victorian branch of the Transport Workers' Union of Australia ("the Union"). The application was made pursuant to s.159 of the Conciliation and Arbitration Act 1904 ("the former Act"), and was referred by the Industrial Registrar pursuant to sub-s. (4), because the elections were being conducted pursuant to s.170 of the former Act. On 1st March 1989, the former Act was repealed by s.3 of the Industrial Relations (Consequential Provisions) Act 1988 ("the Consequential Provisions Act"). On the same date, the Industrial Relations Act 1988 ("the Industrial Relations Act") came into operation. The Union was an organization of employees, registered pursuant to the former Act. By virtue of s.5 of the Consequential Provisions Act, it is now taken to be an organisation, registered under the Industrial Relations Act.

2. The elections the subject of the inquiry have not been completed. Indeed, because issues have been raised about irregularities in the composition of the roll of voters, the conduct of a ballot has been stayed by order of the Court made on 1st February 1989. By virtue of s.53 of the Consequential Provisions Act, the election is required to be conducted as if the former Act had not been repealed. By a strange contrast, by virtue of s.55 of the Consequential Provisions Act, the inquiry must be treated as if the application for it has been made under s.218 of the Industrial Relations Act.

3. To date, the Court has heard evidence and argument only about one alleged irregularity, namely an aspect of the preparation of the roll of voters. It is desirable that the Court make a determination at an early date whether an irregularity has happened in the preparation of the electoral roll, and if so whether the results of the elections may be affected by that irregularity, and make any orders necessary to enable a ballot to be conducted at the earliest reasonable date.

4. Rule 33(j) of the rules of the Union requires the compilation of a list of members who were financial at the closing time for nominations, for use in the conduct of branch elections. By letter dated 2nd November 1988, the returning officer, who is an officer of the Australian Electoral Commission, directed the branch secretary, James Davis, to supply a list of financial members of the branch as at 29th November 1988. Mr. Davis then caused to be prepared such a list, which was delivered to the returning officer on 23rd December 1988.

5. Rule 10 of the rules of the Union provides for the making of an application to become a member of the Union by means of an application form, the content of which is prescribed by the rule. In the office of the Victorian branch of the Union, applications forms are filed by clerical staff in three categories. These are member employees, owner-drivers who joined between 11th December 1974 and 21st October 1977, and owner-drivers other than those who joined between 11th December 1974 and 21st October 1977. The information which is the basis for this characterisation is found in the form itself. The form contains spaces for the applicant to write information beside the words "occupation" and "employed by". In many cases, applicants have written information such as "self-employed", "owner-driver", "sub-contractor" and similar expressions. Information relating to an applicant for membership is placed into a computer, which records the category into which the person is placed. This is usually done by the use of the letter "E" for employees and the letter "O" for owner-drivers.

6. Contributions are payable on an annual basis, and an account is sent to each member in December of each year. The account is accompanied by a computerised ticket, showing the amount of dues owing, the membership roll number of the particular member and the category in which the person's name is recorded (i.e. "E" or "O"), the address and occupation of the member and the name of the member's employer, if applicable. To achieve or maintain financial status for the ensuing year, the member pays the amount shown on this ticket. A receipt is issued, which shows the date of payment and the name, address, occupation, employer and roll number of the member concerned.

7. If a member provides any information changing the particulars recorded in the computer about him or her, this will be updated by branch clerical staff. This includes information relevant to the "E" or "O" categories. In other words, a member may be transferred from one category to the other, depending upon what is thought to be his or her status at the time when new information is received.

8. In compiling the list of members forwarded to the returning officer, Mr. Davis included all persons who were shown in the computer as being financial members, who were designated "E", or those designated "O" who had joined between 11th December 1974 and 21st October 1977. There were 15,693 names in the "E" category and 722 in the "O" who joined between 11th December 1974 and 21st October 1977 category. Mr. Davis did not include 5,O24 persons whose names are shown in the branch computer as being in the "O" category, who joined otherwise than between 11th December 1974 and 21st October 1977. These persons were omitted on the footing that they were not eligible to be members of the Union, and therefore could not be described as financial members.

9. By facsimile transmission on 23rd December 1988, the returning officer queried the relevance of the list of members designated as "O" who joined between 11th December 1974 and 21st October 1977, and also queried the apparent discrepancy between a list containing a total of 16,415 members, and a recent calculation of the "effective membership" of the branch at a figure of 29,469. By return transmission, Mr. Davis advised that effective membership is calculated by dividing all moneys collected in contributions by the annual contribution figure, and stating that this calculation gives a "totally different figure" to the number of financial members. He also explained the reference to the code "O", and explained that the persons listed as "O" who joined between 11th December 1974 and 21st October 1977 were owner-drivers validly enrolled when the rules permitted a person other than an employee to join the Victorian branch of the Union.

10. On 10th January 1989, Mr. Davis certified that the list he had supplied contained the name and postal address of every member who was financial as at 30th December 1988 in accordance with the rules of the Union. At the request of the returning officer, Mr. Davis made a statutory declaration on 27th January 1989 stating that the list supplied "contains the names of all persons who may have been, or are eligible to be validly admitted to the membership of the TWUA in accordance with the Union's registered rules and are eligible to vote in accordance with those rules".

11. The conditions of eligibility for membership of the Union are found in rule 4 of its rules, which provides:

"(A)(1) The Union shall consist of an

unlimited number of persons employed

or seeking to be employed in or in

connexion with the industry or

industries, and/or occupation, and/or

calling, and/or vocations, and/or

industrial pursuits of:

(a) The transport of persons and/or

passengers, and/or goods, wares,

merchandise, or any material

whatsoever, by or on vehicles or

animals or by aircraft or by

motor, steam, oil, electric or

other mechanically-propelled

contrivances; drivers, assistants

and conductors of same, and stable

work wheresoever performed,

including the work of attendance

on horses and other beasts of

burden, whether in stables or

otherwise; all yard and garage

cleaning and other work in

connexion with driving and

transport, including, washing,

greasing, oiling, cleaning,

polishing, tyre-fitting and

general attendance on horse or

mechanically-propelled vehicles

and mechanical contrivances,

training and breaking-in of

horses, loading and unloading on

to and/or from any vehicle;

shunting by horse-power,

supervising and collecting moneys,

or washing cans in connexion with

the distribution of milk, working

in pits, tarring and washing pans,

ploughing in of night soil,

digging trenches and burying soil

in connexion with sanitary work,

ploughing in conjunction with the

construction and excavation of

earthworks; and

(b) All driving; and

(c) Chauffeurs, Conductors, and

Attendants on or about motor

vehicles, and employees engaged in

and about Garage, Motor Stables,

and other similar places in the

repair and maintenance of motor

vehicles, or as attendants.

(A)(2) For the purposes of this rule a person

shall be deemed to be employed in one

or more of the specified industries,

occupations, callings, vocations or

industrial pursuits if:

(i) his usual occupation is that of

an employee in one or more of the

specified industries,

occupations, callings, vocations

or industrial pursuits;

or

(ii) he is a person employed in one or

more of the specified industries,

or engaged in one or more of the

specified industrial pursuits in

the State of New South Wales,

Queensland, South Australia or

Western Australia who -

(a)in the case of a person so

employed or engaged in New

South Wales - is, or is able

to become, a member of an

industrial union of employees

within the meaning of the

Industrial Arbitration Act

1940 of that State or that Act

as amended from time to time

upto and including 30 April

1984;

(b)in the case of a person so

employed or engaged in

Queensland - is an employee

for the purposes of the

Industrial Conciliation and

Arbitration Act 1961-1976 of

that State or that Act as

amended from time to time upto

and including 31 December

1981;

(c)in the case of a person so

employed or engaged in South

Australia - is an employee for

the purposes of the Industrial

Conciliation and Arbitration

Act 1972-1975 of that State or

that Act as amended from time

to time upto and including 31

December 1981;

(d)in the case of a person so

employed or engaged in Western

Australia - is an employee for

the purposes of the Industrial

Arbitration Act 1979 of that

State or that Act as amended

from time to time upto and

including 31 December 1981.

......

(B) The Union shall also consist of such other

persons as are elected officers of the

Union and admitted as members thereof.

(C) The Union shall also consist of such

members who have been granted honorary

membership after being elected to

parliamentary or local government

positions or after twenty years good

standing in the Union, provided that the

persons referred in both categories are

not then engaged in the industry."

Sub-rule (A)(3) provides for some exceptions, which are not relevant to the present case.

12. In Linehan v. Transport Workers' Union of Australia [1981] FCA 107; (1981) 76 FLR 328, the Court dealt with an application on behalf of the Industrial Relations Bureau, which then existed, seeking orders that the rules of the Union were in contravention of s.140(1) of the former Act, by permitting to become members of the Union persons who could not have been eligible under s.132 of the former Act. It is convenient to set out, from the judgment in that case at pp 329-331, an account of the legislative history and its effect in relation to the rules of the Union:

"Prior to the Conciliation and Arbitration Act

1973 (Cth) (Act No. 138 of 1973) coming into

operation on 13 November 1973, under s. 132 of

the Act then in force, eligibility for

membership of an organisation of employees was

limited to employees, see s. 132(1)(b) and

(c). At that time, for the purposes of s.132,

"employee" was defined in s.4(1) as meaning:

"any employee in any industry and

includes any person whose usual

occupation is that of employee in

any industry...."

Section 51 of Act No. 138 of 1973 amended

those two paragraphs of s.132(1) which were

amended further by s.4 of Act No. 89 of 1974

which came into operation on 29 October 1974.

Following those amendments, under s. 132 of

the Act then in force, eligibility for

membership of an organisation of employees was

widened to include persons who were not

necessarily employees. Eligibility for

membership was extended, for example, to

include independent contractors such as owner

drivers of trucks, provided those persons were

not employers. Those persons were deemed to

be employees under legislation in force in

some States and many of them were members of

State-registered unions which coincided with a

branch of an organisation, cf. Moore v.

Doyle (supra). The union, pursuant to the

amended s.132, altered its eligibility rule to

make those persons eligible for membership of

the union. On 16 January 1975, pursuant to

s.139 of the Act, the Industrial Registrar

gave his consent to that alteration. The

decision by which that consent was given is

reported in 164 CAR 1120 where the

alterations made and the reasons for the

alterations are set out in detail.

Section 132 was further amended by s.12 of

Act No. 108 of 1977 which came into operation

on 21 October 1977. Following those

amendments, under s. 132 of the Act, as then

in force, eligibility for membership of an

organisation of employees was once again

limited to employees, but under s. 132(4) a

special meaning was given to the word

"employee" where appearing in s.132(1)(b)(ii)

and s.132(1)(c)(ii) of the Act. Under that

special meaning "employee" means any employee

in any industry and includes:

"(a) any person whose usual

occupation is that of employee

in any industry; and

(b) any person employed in an

industry, or engaged in an

industrial pursuit, in the

State of New South Wales,

Queensland, South Australia or

Western Australia...."

and in substance is an employee for the

purposes of specified State legislation in

those States. The provisions contained in the

subsection relate to those States which have

legislation concerning State-registered unions

and which contain provisions in substance

deeming persons to be employees.

Section 132(4)(b)(iv) was amended by s.13 of

Act No. 71 of 1981 which came into operation

on 17 June 1981 by inserting the name of the

newly enacted relevant Western Australian

statute.

From this summary, it will be seen that as a

result of the amendments made in 1977, the

eligibility rule of the union is in a form

wider than that permitted by s.132 of the Act

and that it permits the union to enrol and

retain as members persons who are not

employees within the meaning of the special

definition contained in s.132. The rule of

the union has that effect, particularly in the

States of Victoria and Tasmania and in the

Territories being the Australian Capital

Territory and the Northern Territory. It may

have the same effect, albeit to a more limited

extent, in the States of New South Wales,

Queensland, South Australia and Western

Australia."

The Court found that the rules of the Union contravened s.140(1) of the former Act in a specified respect, namely that they allowed persons not being employees as defined in s.132(4) of the former Act to be eligible for membership of the Union. As no part of s.132(4) permitted persons in Victoria who were not employees to belong to the Union, it was plain that non-employees, other than those who joined the Union between the amendment to the rules of the Union conseqeuent upon the 1974 statutory amendment and the 1977 statutory amendment, could not become members. Rule 4 of the Union's rules (apart from sub-rule (c), which does not appear to be in issue in the present case) now appears to restrict the categories of persons who can become members of the Union to those contemplated by s.132 of the former Act as it stood immediately before the repeal of the former Act.

13. The evidence of Mr. Davis is that the policy of the Union has been to sign up throughout Australia people who drive vehicles to earn their livings, irrespective of whether they are employees or not.

14. What occurred in Linehan's case shows the basis on which the list of members eligible to vote in these elections was compiled. Only those who were considered to be employees and non-employees who joined between 11th December 1974 and 21st October 1977 were considered to have joined the Union validly. Even though each of the 5,024 persons with an "O" classification, who joined before 11th December 1974 or after 21st October 1977, had signed an application form, which had been dealt with in the ordinary way, without objection having been taken during the process of admission under rule 11 of the Union's rules, and had paid the contributions required by those rules, they were not considered to be members.

15. Counsel for the Union argued that the question whether a person is a financial member for the purposes of rule 33(j) is to be decided exclusively according to the rules of the Union. On this argument, any person who has signed and completed an application form in accordance with rule 10, been admitted under rule 11, paid entrance fees under rule 17 and contributions in accordance with rule 18, whose name appears in the branch's computer records, which for this purpose constitute the register required by rule 12, and has not had his or her membership terminated under rule 14, or resigned under rule 15 is, for the purposes of the rules, a financial member. Counsel invoked the principle that a person may cease to be eligible to join a registered organisation, and yet retain membership acquired previously. This principle has been applied in a number of cases, most notably Turner v. Australasian Coal and Shale Employees' Federation [1984] FCA 275; (1984) 6 FCR 177, especially at p 195 and Troja v. Australasian Meat Industry Employees' Union (1978) 46 FLR 340, especially at pp 346-348 in the judgment of Keely J., with whom the other two members of the Court agreed on this point. The principle does not, however, support the proposition for which counsel for the Union relied upon it in this case. They argued that it is unnecessary to be employed in an occupation falling within the conditions of eligibility of a registered organisation, in order to be a member of that organisation. The principle referred to does nothing more than to indicate that it is possible to retain membership, acquired whilst a person was eligible, even after the person has ceased to be eligible. Even so, there must be doubt as to whether an organisation can legitimately allow persons who have ceased to be employees (in the extended definition given by the Industrial Relations Act, and by the former Act, to that word, so as to include within it a person whose usual occupation is that of an employee) to remain members.

16. Section 132 of the former Act set out the kinds of associations or persons which could be registered as organizations. The relevant provisions were found in paras. (b) and (c) of sub-s. (1), which were in the following terms:

"(b) any association the members of which

include not less than one hundred

employees in or in connection with any

industry and the other members, if any,

of which are -

(i) officers of the association; or

(ii) persons who are employees who are

qualified to be employed in or in

connection with that industry,

but does not include an association that

has members referred to in sub-paragraph

(ii) unless the association is

effectively representative of the members

who are employees in or in connection

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; or

(ii) persons who are employees 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) unless the association is

effectively representative of the members

who are employees engaged in that

industrial pursuit or those industrial

pursuits."

It must be borne in mind that the word "employees" in these provisions must be construed in accordance with the extended definition of "employee" found in s.132(4)(a) and in the definition of "employee" in s.4(1) of the former Act, as including any person whose usual occupation was that of an employee in any industry. The same word must be read in the light of the extended definition, found in s.132(4)(b), but that definition had no relevance to the question whether persons employed or engaged in industrial pursuits in Victoria could be members of an association.

17. Section 132(2) of the former Act provided that the conditions to be complied with by associations applying for registration and by organizations should be as precribed (emphasis added). The necessary prescription was found in reg. 115 of the Conciliation and Arbitration Regulations. Sub-reg. (1) prescribed the conditions to be complied with by an association applying for registration. Among these conditions, in para. (a), was a requirement that the association should be an association of a kind referred to in s.132 of the former Act. Sub-reg. (2) prescribed the conditions to be complied with by organizations. It provided that the conditions specified in sub-reg.(1) should apply in relation to organizations "in like manner as they apply in relation to an association applying for registration". Thus, an organization was required to continue to be an association of a kind referred to in s.132. Further, by virtue of s.143(1)(b), it was a ground for cancellation of the registration of an organization that its rules failed to comply with the provisions of the Act or the regulations. Similarly, it was a ground for cancellation of the registration of an organization that its rules, insofar as they provided for a matter in accordance with the prescribed conditions, had not been observed; see s.143(1)(c) of the former Act. Thus, an organization was bound to ensure that it remained an association of a kind referred to in s.132, in order to comply with the prescribed conditions, and so as not to place its registration in jeopardy.

18. The provisions of s.132(1)(b) and (c) seem to suggest that the categories of persons named in them are exclusive. This conclusion is strengthened by the use of the phrase "if any", following the phrase "the other members". It therefore appears that an organization under the former Act was bound to restrict its membership to persons who were employees, including persons whose usual occupations were those of employees, and officers of the organization. To retain as a member any person who had ceased to be an employee, or to have a usual occupation being that of an employee, was for an organization to cease to be an association of a kind contemplated by s.132 of the former Act.

19. These considerations may not apply under the Industrial Relations Act. Section 188(1)(b) of that Act does seem to limit the categories of persons who may belong to an association applying for registration to employees (which term includes any person whose usual occupation is that of employee, by virtue of the definition of "employee" in s.4(1)) and officers of the association. There is no longer any equivalent of s.132(2) of the former Act; instead of having conditions to be complied with by organisations prescribed in regulations, the conditions are now set out in the Industrial Relations Act itself. They do not contain any provision requiring an organisation to remain an association of the kind referred to in s.188(1)(b). There are no longer grounds for cancellation of registration equivalent to those found in s.143(1)(b) and (c) of the former Act. It appears that, once registered, an organisation may alter its rules, so as to permit it to retain as members persons who have ceased to be employees, provided that those persons were eligible to become members and did become members in the first place. Indeed, an association applying for registration may have such rules, as long as it does not have, at the time of registration, any members who are not within the statutory categories. This change in the law is of little significance in the present case, however, because of the requirement that the elections the subject of this inquiry be conducted as if the former Act had not been repealed. The legislation produces the strange result that the Union can retain as its members persons who have ceased to be employees, for all purposes other than the conduct of the present elections. It is therefore necessary to assume in the present case that, at the date when the roll of voters was required to be compiled, the rules of the Union could not validly have permitted those who had attained membership, but had ceased to be employees (in the extended sense), to remain as members.

20. There is a strong line of authority to the effect that a person who was not eligible to belong to a registered organization at the time when he or she purported to join did not ever become a member. See Re Federated Clerks Union of Australia; ex parte Tanner (1986) 70 ALR 79, especially at p 90, Ransley v. Australian Public Service Association (Fourth Division Officers) (1985) 12 IR 55, especially at pp 67-68, Burgess v. John Connell-Mott, Hay and Anderson Pty. Ltd. [1979] FCA 12; (1979) 37 FLR 386, especially at p 402, Drake v. Australian Workers' Union (1972) 20 FLR 399 and Bielski v. Oliver (1958) 1 FLR 258, especially at p 260 in the judgment of Spicer C.J. and Morgan J. In Drake's case, at pp 400-401 in the joint judgment of Spicer C.J. and Dunphy J., it was said that, to the extent to which the rules of an organization purported to extend the conditions of eligibility to permit the admission of persons other than those described in s.132 of the former Act, they would have been contrary to the provisions of that section, and in contravention of s.140 of that Act. The same view was taken in Linehan v. Transport Workers' Union of Australia, to which reference has been made earlier. The same conclusion must follow with respect to rules other than those containing conditions of eligibility for membership. It follows that, for the purposes of this inquiry, the view must be taken that persons who were not eligible to join the Union at the time when they joined never became its members.

21. If all of the 5,024 persons whose names were omitted from the list of members forwarded by Mr. Davis to the returning officer on 23rd December 1988 had been persons who were not employees (in the extended sense) at the times when they purported to join the Union, or persons who had joined the Union validly but thereafter had abandoned their status as employees (in the extended sense), their names would have been omitted from that list properly. On the evidence, however, that was not the case. In a number of respects, Mr. Davis was in error in declining to send to the returning officer those names. In the first place, attention was directed to the question whether a person had been allocated an "E" classification or an "O" classification in the branch's computer at the time when the list was compiled. As has been pointed out already, the correct nature of the inquiry is as to the eligibility of the person at the time when he or she purported to join the Union, and as to whether that person has subsequently ceased to be an employee, and to have as his or her usual occupation that of an employee. No doubt, in the case of some persons, difficult questions will arise as to continuing eligibility. It is possible that someone who drives a motor vehicle for a living may find it necessary from time to time to take work which does not involve a contract of employment. Whether by taking such work a person abandons his or her status as an employee (in the extended sense) may be difficult. The answer may depend upon the intention of the particular person to seek work as an employee in the future, or on the length of engagement otherwise than as an employee. In each case, it will be a question whether the person concerned has a usual occupation as an employee.

22. The second error made by Mr. Davis was to assume that categorization as an owner-driver is to be equated with being something other than an employee. Mr. Davis did say that a person who owned a vehicle, but nevertheless "worked under an award" would be given an "E" classification in the records of the branch, and that there were very few of such people. The fact of working under an award is not, however, decisive of the status of a person as an employee or otherwise. There are two aspects of the attribution of an "O" classification to a particular person, a theoretical aspect and a practical aspect. It is necessary to examine each of these in turn.

23. Counsel for Mr. Davis and the other members of the committee of management of the Victorian branch of the Union argued that, as a matter of law, owner-drivers are normally not employees. This argument was based on the decision of the High Court of Australia in Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389. In that case, the question arose whether a deceased person had worked under a contract of service, and was therefore a "worker" within the relevant legislation relating to workers' compensation. The High Court of Australia was unanimously of the view that the deceased was an independent contractor, and therefore did not work under a contract of service. At p 396, Latham C.J. said:

"If the work done by one person for another is

done subject to the control and direction of

the latter person as to the manner in which it

is to be done the worker is a servant and not

an independent contractor. If, however, the

person doing the work agrees only to produce a

given result but is not subject to control in

the actual execution of the work he is an

independent contractor...Humberstone was in my

opinion a carrier in business on his own

account but found that the requirements of the

firm kept him fully occupied with all the work

which he wished to do. The firm utilized his

services on the same basis as that upon which

any carrier is ordinarily employed, payment

being based on the weight or some other

characteristic of the goods carried and the

distances for which they were carried. There

is no evidence of any control exercised or

exerciseable by the the firm as to the manner

in which the work was to be done."

At pp 404-405, Dixon J. (as he then was) discussed the question of the control of the manner of performance of work. His Honour went on:

"In the present case the contract by the

deceased was to provide not merely his own

labour but the use of heavy mechanical

transport, driven by power, which he

maintained and fuelled for the purpose. The

most important part of the work to be

performed by his own labour consisted in the

operation of his own motor truck and the

essential part of the service for which the

respondents contracted was the transportation

of their goods by the mechanical means he thus

supplied. The essence of a contract of

service is the supply of the work and skill of

a man. But the emphasis in the case of the

present contract is upon mechanical traction.

This was to be done by his own property in his

own possession and control. There is no

ground for imputing to the parties a common

intention that in all the management and

control of his own vehicle, in all the ways in

which he used it for the purpose of carrying

their goods, he should be subject to the

commands of the respondents."

Reference was made to the fact that Humberstone was followed by a differently constituted High Court in Wright v. Attorney-General for the State of Tasmania [1954] HCA 26; (1954) 94 CLR 409 and by Stephen J. in Federal Commissioner of Taxation v. Barrett [1973] HCA 49; (1973) 129 CLR 395. Further, in Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16, the High Court held that the existence of a right to control the performance of the work was still an important aspect of any determination whether a person is or is not an employee. See especially the judgment of Mason J. (as his Honour then was)at pp 23-24, with which both Brennan J. and Deane J. expressed agreement.

24. Counsel for Mr. Davis and the other members of the committee of management relied upon the words of Dixon J. in Humberstone as establishing the proposition that a contract between an owner-driver and the person who uses the services of that owner-driver will usually be a contract the essence of which is mechanical traction, rather than a contract the essence of which is the supply of work and skill. In my view, this is not the case. All that Humberstone amounted to was a decision that the essence of a particular contract was to be characterised in that manner. As the subsequent authorities, especially Stevens, make clear, the various indicia of each contract must be examined, with particular reference to the right to control the performance of the work, in order to ascertain whether its essence is the provision of a vehicle, or the supply of work and skill in the operation of that vehicle. At one extreme, the impact of the ownership of a vehicle upon the nature of the contract may be no more significant than the impact of ownership by a carpenter of carpentry tools used in the performance of work under the carpenter's contract. At the other extreme, it may be clear that an owner-driver carries on an independent business, contracting for all and sundry, and merely accepting large amounts of work from one particular source. Between these extremes, there may be many gradations. There is no simple way of determining whether owner-drivers are employees or independent contractors, without examining the particular facts of each case.

25. The practical aspects of giving weight to the "O" classification are also important. That classification has resulted from information supplied by persons applying to join the Union, and paying their contributions from time to time. On the evidence, it has often been supplied in the form of those persons describing themselves as "owner-driver", "self-employed" or, "sub-contractor". These expressions may conceal, rather than reveal, the true nature of the relationship between the persons adopting those expressions and others who may make use of those persons' services. For instance, someone with little understanding of the nature of company law, but who has incorporated a family company for the purposes of limiting liability or taxation, may use the expression "self-employed", when the reality is that he or she is an employee of the company. See Lee v. Lee's Air Farming Ltd. (1961) AC 12. Without any investigation of a particular contract, the expressions "owner-driver" and "sub-contractor" disclose no more about a particular contract when used by an applicant for membership of the Union, or a payer of contributions, than they do when used by any other person.

26. The evidence therefore shows a probability that an irregularity has happened in relation to the elections the subject of this inquiry. That irregularity is the probable exclusion from the roll of voters of a significant number of the 5,024 persons whose names were not forwarded by Mr. Davis, and who are validly members of the Union. It is impossible to know the precise number of members involved. One matter which doubtless has contributed to the occurrence of the irregularity is the failure of Mr. Davis to notify the 5,024 persons that he intended to omit them from the roll of voters, and to provide them with any opportunity to submit evidence that they were in fact and in law members of the Union. It is also possible that there are persons amongst the 5,024 who were not eligible to belong to the Union when they purported to join, but who have since become eligible. Such persons may have availed themselves of an opportunity to make application under s.171E of the former Act (similar provisions to which are now found in s.260 of the Industrial Relations Act), with the result that their membership would have been validated retrospectively by the operation of the section.

27. The nature of the irregularity, and the number of persons involved, pose a severe practical problem for the Court. It would not be possible for the Court to hear evidence and determine the precise status of each of the 5,024 persons. To do so would delay the conduct of a ballot for far longer than is practicable. There does not appear to be power in the Court to authorise the Industrial Registrar to conduct an inquiry, for the purpose of determining which of the 5,024 persons are members; the actions which the Court may authorise the Industrial Registrar to take are listed in s.220(2) of the Industrial Relations Act, and are of a different nature from the task that would be required.

28. Counsel for the applicant argued that the Court should order that all 5,024 names be placed on the roll of voters, on the basis that the presumption of regularity should be applied. On this argument, it should be presumed that all of the persons are members; they signed and completed application forms, were admitted without objection, and have paid contributions and been treated as members, and it ought not to be supposed that the Union acted in breach of its rules, and put in jeopardy its registration as an organization, by accepting and treating them as members. On the other hand, counsel for Mr. Davis and the other members of the committee of management argued that the presumption of regularity ought to apply to the compilation of the list sent by Mr. Davis to the returning officer on 23rd December 1988. It ought to be presumed that the records of the Union showed the true situation, and that Mr. Davis acted properly in excluding people who were not valid members of the Union. Arguments based on the presumption of regularity appear to be of little assistance. If nothing more were known than that the persons appeared on the register of members, but had the classification "O" and had been omitted from the roll of voters, the two presumptions contended for would cancel each other out, leaving the question incapable of determination without other evidence. In fact, there is evidence tending to rebut a presumption of regularity at each point. In the first place, Mr. Davis's evidence that the Union seeks to enrol as members persons who drive vehicles for a living, irrespective of whether they are employees or not, and the general circumstances of the transport industry, tend to suggest a probability that some ineligible persons have been enrolled. In the second place, the evidence as to the method of allocating an "O" classification to a person in the records of the branch, and of the criteria applied by Mr. Davis in selecting the 5,024 names, tends to rebut the presumption that the selection was made with regularity. Indeed, I have found that it was not. For these reasons, the application of presumptions of regularity will not resolve the issue.

29. The practical problem can only be solved by adopting what appears to be the best course available to ascertain the most accurate roll of voters possible within a reasonable time, to allow the conduct of a ballot. In this respect, there appear to be two practical courses open. It would be possible to order that the 5,024 names all be placed on the roll of voters, unless within a reasonable period of time evidence is presented to the returning officer that the bearers of particular names among the 5,024 were not employees (in the extended sense) at the times when they became members of the Union or that they have ceased to be employees, or to have usual occupations being those of employees, in the meantime. The alternative course would be to order that none of the 5,024 names be placed on the roll unless the bearers of them, or other persons, present evidence to the returning officer within a reasonable time that they were employees (in the extended sense) at the times when they became members of the Union, and have not abandoned their status as employees, or as persons whose usual occupations are those of being employees, since that time.

30. A choice between these two courses must be made on the basis of what seems likely to produce the most just result. Experience has shown that circulars to people inviting them to produce evidence as to their status are unlikely to produce significant results. Without legal advice, many people would have difficulty in discerning the type or types of evidence which they could supply in support of the proposition that they were employees. Without legal advice, those who might be able to avail themselves of s.171E of the former Act or s.260 of the Industrial Relations Act would have difficulty in grasping the intricacies of those provisions. On the other hand, those who seek to exclude the 5,024 from voting have access to legal advice, and to a considerable amount of evidence going to the status of those persons. The members of the committee of management, or some of them, will know, or be able to ascertain, the working arrangements adopted by many transport companies which make use of the services of drivers of vehicles. It seems to me, therefore, to be more likely to produce a just result if the first of the two alternatives is adopted, namely that of ordering that all 5,024 names be added to the roll, unless the returning officer is supplied with evidence enabling him to make a decision that particular names should be deleted. No doubt, the case for deleting any name will be strengthened if arrangements are made by or on behalf of the committee of management to notify any person in respect of whom it is proposed to submit evidence to the returning officer, and give that person an opportunity either to respond to the evidence, or to seek to validate his or her membership. All of these operations will take time, and I propose to hear counsel for the various parties on the question of a suitable timetable for the preparation of a final roll of voters.

31. The Court will therefore declare that an irregularity has happened in relation to the elections for various offices in the Victorian branch of the Union, in that a significant number of 5,024 persons whose names were not included in the list of persons submitted on 23rd December 1988 to become the roll of voters should have been included, as they were financial members of the Union at the relevant date. Being satisfied that that irregularity may affect the results of the elections, the Court will make orders under s.223(3)(c)(i) of the Industrial Relations Act, directing the returning officer to prepare a new roll of voters. The precise timetable for the steps to be taken to this end will be determined after submissions from counsel on that point.