by the Industrial Registrar to the Federal Court of Australia

Conciliation and Arbitration - registered organization - Election - Inquiry into irregularities - Whether candidate for election eligible for membership and duly admitted as a member - Meaning of "officer" - Whether members paying contributions by pay-roll deductions financial members - Whether rule requiring payment of contributions in advance oppressive, unreasonable or unjust - Whether financial members deprived of opportunity to vote.

Conciliation and Arbitration Act 1904 (Cth), ss.140, 159

Solicitors for the applicant :Scott Campbell Sheils

Solicitors for The Operative :Gary Robb & Associates

Solicitor for the Australian :Australian Government Solicitor

Jeanette Leone McHugh was, upon being appointed Field Officer of the Australian Capital Territory Branch ("the Branch") of The Operative Painters and Decorators Union of Australia ("the Union"), eligible to be a member of the Union.

Jeanette Leone McHugh was duly admitted to membership of the Union in or about May 1982.

Jeanette Leone McHugh was eligible for election to the office of Branch Secretary of the Union at the election completed on 2 March 1988.

An irregularity occurred in or in connexion with the election for the office of Branch Secretary of the Union which was completed on 2 March 1988 in that ballot papers were issued to members other than financial members of the Branch, namely to members who had arranged with their respective employers for deductions to be made from their wages, payable fortnightly, and remitted to the Union by way of part payment of the contributions payable by them under the Branch Rules.

The irregularity may have affected the result of the election.

Rule 6(2)(b) of the Branch Rules requiring that contributions be paid in advance is not a rule imposing upon members conditions and restrictions which are oppressive, unreasonable or unjust within the meaning of s.140(1) of the Conciliation and Arbitration Act 1904 (Cth).

It has not been established that financial members of the Branch were deprived of the opportunity to vote by reason that a ballot paper was either not sent to the member or was sent to the member at an address other than the member's correct address.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Mr Ian Murray ("the applicant"), proceeding as a member of The Operative Painters and Decorators Union of Australia ("the Union"), an organization registered pursuant to the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), claims that there have been irregularities in or in connexion with an election for the office of Branch Secretary of The Operative Painters and Decorators Union of Australia - Australian Capital Territory Branch ("the Branch"). The election was conducted under s.170 of the Act by Mr Roger David Rankin ("the Returning Officer"), a member of the staff of the Australian Electoral Commission, and was completed on 2 March 1988. On 23 May 1988 the applicant, pursuant to s.159(1) of the Act, lodged with the Industrial Registrar appointed under the Act an application for an inquiry by the Court into the matter. The Industrial Registrar, pursuant to s.159(4), referred the application to the Court. The inquiry was thereupon deemed to have been instituted (s.159(4)(a)). Thereafter the inquiry proceeded, the Court being satisfied that there was reasonable ground for the application (s.159(4)(b)).

2. Nominations for the office of Branch Secretary were called on 13 January 1988 and closed at 12 noon on 27 January 1988. The only nominations received were those of the applicant and Mrs Jeannette Leone McHugh (nee Hazlehurst). Both nominations were accepted and an election was then held by secret ballot. The ballot opened on 17 February 1988 and closed at 9 a.m. on 2 March 1988. The total number of ballot papers issued was 615. The number of ballot papers returned for scrutiny was 369. One ballot paper was rejected at preliminary scrutiny. The result of the scrutiny was as follows:

Candidate Votes

Murray 145

McHugh 220

Informal 3

Total 368

On 2 March 1988 the Returning Officer declared Mrs McHugh duly elected to the office.

3. The irregularities which are claimed to have occurred in or in connexion with the election may be summarised as follows:

(a) That Mrs McHugh was not eligible for

election to the office as she was not,

at any relevant time, a member of the

Union;

(b) That ballot papers were sent to a number

of persons who were not, at the relevant

time, financial members of the Union;

and

(c) That financial members of the Branch

were deprived of the opportunity to vote

by reason that a ballot paper was either

not sent to the member or was sent to

the member at an address other than the

member's correct address.

4. Before the Court are two documents certified on 16 March 1988 by a Deputy Industrial Registrar appointed under the Act, one (Exhibit A) being a copy of the registered rules of the Union ("the Federal Rules") and the other (Exhibit B) a copy of the registered rules of the Branch ("the Branch Rules"). The proceeding was conducted on the basis that Exhibits A and B are respectively the Federal and Branch Rules as in force at any time relevant to the determination of the matter.

5. Rule 2 of the Federal Rules has the heading "Constitution" and provides:

"The Union shall consist of an unlimited number

of persons employed in or seeking to be employed

in or in connexion with all or any of the

industry (sic) and/or occupations and/or

callings and/or locations and/or industrial

pursuits of the painting and decorating industry

in connexion with buildings and structures,

plant, machinery and equipment, fences and

posts, (commercial, residential, industrial or

otherwise), general and ship painting including

...."

There follow, in paragraphs lettered (a) to (1) inclusive, examples of particular activities which are to be taken as being within the general description. The rule then continues:

".... together with such other persons whether

engaged in any industrial pursuit or not who

have been appointed officers of the Union or its

branches and admitted as members thereof but

shall not include ...."

6. Rule 5 of the Federal Rules is headed "Membership" and includes the following provisions:

"(1) All candidates for admission to this Union

shall sign the application form as set out in

Appendix 'A'. They shall be nominated by two

financial members of the Union and such

application shall be submitted for approval to

a general meeting or a meeting of the

Management Committee of the Branch. On

approval, they shall be admitted on probation

for a period of six months during which time

it shall be competent for any member to

challenge their admission. Such challenge

shall be referred to the Management Committee

and dealt with in accordance with these Rules.

(2) Each candidate for membership in this Union

must be:-

(a) A good workman.

(b) Of steady habits and good moral

character.

(c) In receipt of the minimum wage.

(d) Not less than twenty (20) years of age,

or in any year of his

legally-indentured, or trainee

apprenticeship, or juniors or females

only where such juniors or females are

permitted by an award or determination,

of any statutory tribunal, to which the

Union or any of its branches are bound.

(e) A legally-indentured apprentice may

become an associate member during any

year of his apprenticeship.

....

(5) Candidates for membership shall be proposed to

a meeting of a Branch of the Union or of the

Management Committee, when a vote of the

majority of the members present shall be

sufficient to secure their election subject to

the provisions of Clause (1).

...."

"MEMBERSHIP APPLICATION FORM

THE OPERATIVE PAINTERS AND DECORATORS UNION OF AUSTRALIA

Registered under the Commonwealth

Conciliation and Arbitration Acts

APPLICATION FOR MEMBERSHIP

I, the undersigned, hereby apply for admission as a member of the above Union,

and pledge myself, if admitted, to comply with the Rules and Regulations of

HAVE YOU EVER BELONGED TO THIS OR ANY OTHER TRADE UNION, AND IF SO, WHICH

7. The Federal Rules contemplate the formation of branches, rule 21(1) providing that there is not to be more than one branch in each State of the Commonwealth. Each branch is to elect its own officers and delegates and to have power to make rules not conflicting with the Federal Rules (rule 21(5)). Branches have the power to fix the rate of entrance fees and contributions of members within the limits prescribed by the Federal Rules (rule 21(6)(a)).

8. Rule 18(2) of the Federal Rules provides, inter alia:

"(a) Each member of the Union, except ticket

writers and cycle enamellers in West

Australia and Tasmania who are not

receiving the full painters margin and

except apprentices, females and juniors,

subject to the limitation contained in

clause (c) of this rule, shall be liable

to pay contributions as fixed by their

respective branch. Such branch

contributions shall be determined by the

following formula:

Existing Branch contributions shall be

converted to and expressed as a

percentage of the base rate of the

painter classification in the National

Building Trades Construction Award 1975.

The percentage so fixed shall be

increased periodically so as to reach a

minimum of 1 per cent (1%) of the said

rate not later than 31st December, 1985.

Thereafter contributions shall be based

on 1 per cent (1%) of the painter

classification in the National Building

Trades Construction Award.

The yearly contribution shall be

determined by multiplying the amount by

52, calculated to the nearest two

dollars ($2).

The rate of contributions to be paid by

ticket writers in West Australia and

Tasmania who are not receiving the full

painters margin and apprentices, females

and juniors, shall be such rate as each

branch may decide.

....

(c) Within the limits prescribed in this

Rule, each State Branch may fix the

amount payable by members of such

Branch.

(d) Each State Branch may fix the

contributions of its members on a

quarterly, half yearly or annual basis

and Rule 20, Clause (1)(a), shall be

interpreted accordingly.

(e) The State Branch may allow such

reduction of the stipulated payment, by

way of discount for prompt payment, as

the Branch shall think fit."

9. Rule 20 deals with financial membership. It includes the following provisions:

"(1) 'Financial Member' shall mean:-

(a) Any ordinary member who has paid all

dues and moneys owing within fourteen

days after the date in (sic) which

contributions fall due. Provided,

however, that upon payment of all dues

and moneys owing, subsequent to the

fourteen days provided for herein, a

member shall be deemed to be immediately

financial.

(b) Any member exempt from payments by

reason of age.

(2) No member who has become unfinancial shall be

entitled to any of the privileges of

membership until he has reduced his

indebtedness within the limits prescribed in

Clause 1.

(3) (a) The receipts held by a member shall be

considered evidence of his payments and

indebtedness.

(b) In the absence of such proof, the Branch

books shall be regarded as conclusive

evidence of the state of his account."

10. Relevant provisions of the Branch Rules are as follows:

"5 - MEMBERSHIP

(1) All candidates for admission to this Branch

shall sign an application form. They shall be

nominated by two (2) financial members of the

Branch and such application shall be submitted

for approval to a General Meeting or a Meeting

of the Management Committee of the Branch. On

approval they shall be admitted on probation

for a period of six (6) months, during which

time it shall be competent for any member to

challenge their admission. Such challenge

shall be referred to the Management Committee

and dealt with in accordance with these Rules.

(2) QUALIFICATION OF CANDIDATES

Each candidate for membership in this Branch

must be:-

(a) A good Workman.

(b) Of steady habits and good moral

character.

(c) In receipt of the minimum wage.

(d) Not less than twenty (20) years of age,

or in any year of his

legally-indentured, or trainee

apprenticeship, or juniors or females

only where such juniors or females are

permitted by an Award or Determination,

of any Statutory Tribunal, to which the

Union or any of its Branches are bound.

(e) A legally-indentured apprentice may

become an associate member during any

year of his apprenticeship.

....

(5) Candidates for membership shall be proposed to

a meeting of the Branch of the Union or of the

Management Committee, when a vote of the

majority of the members present shall be

sufficient to secure their election subject to

the provisions of Clause (1).

....

6 - FINANCE

(1) ENTRANCE FEES

(a) Every person covered by this

Constitution may join the Branch on

payment of an Entrance Fee of twenty

dollars ($20) excepting those applicants

as set out in Clause (5)6.

....

(2) CONTRIBUTIONS

(a) Each ordinary member of the Branch shall

pay in advance 0.8% of the base rate of

the Painter Classification in the

National Building Trades Construction

Award, and shall be calculated to the

nearest two dollars ($2), as at the

thirtieth (30th) day of November in the

preceding year, multiplied by 52.

As from the 1st of June, 1984

Each ordinary member of the Branch shall

pay in advance 0.9% of the base rate of

the Painter Classification in the

National Building Trades Construction

Award, and shall be calculated to the

nearest two dollars ($2), as at

thirtieth (30th) day of November in the

preceding year multiplied by 52.

As from the 1st of June, 1985

Each ordinary member of the Branch shall

pay in advance 1% of the base rate of

the Painter Classification in the

National Building Trades Construction

Award, and shall be calculated to the

nearest two dollars ($2), as at the

thirtieth (30th) day of November in the

preceding year, multiplied by 52.

(b) Contributions shall be due and payable

in advance as at the first (1st) day of

June, and the first (1st) day of

December in each and every year.

....

8 - FINANCIAL MEMBERS

(1) 'Financial Member' shall mean:

(a) Any ordinary member who has paid all

dues and monies owing within fourteen

(14) days after the date in (sic) which

contributions fall due.

(b) Provided however, that upon payment of

all dues and monies owing, subsequent to

the fourteen (14) days provided for

herein, a member shall be deemed to be

immediately financial.

(c) Any member exempt from payment by

reason of age.

....

(3) (a) The receipts held by a member shall be

considered evidence of his payments and

indebtedness.

(b) In the absence of such proof, the Union

books shall be regarded as conclusive

evidence of the state of his account.

....

17 - BRANCH OFFICERS - MANAGEMENT

COMMITTEE - DELEGATES

(i) The Branch shall elect the following

Officers:-

(a) Branch President;

(b) Branch Senior Vice-President;

(c) Branch Junior Vice-President;

(d) Branch Secretary, who shall also act as

Treasurer;

(e) Branch Assistant Secretary;

(f) Branch Trustees, two (2), who are

eligible for election to the Management

Committee;

(g) Tyler.

(ii) In addition, the Branch shall elect five (5)

non-official members and such elected

non-official members, and the President,

Vice-Presidents, Secretary and Assistant

Secretary shall constitute the Management

Committee.

....

18 - QUALIFICATION OF CANDIDATES FOR OFFICE

For the position of Secretary, Assistant Secretary,

the candidate/s shall be financial members of the ACT

Branch of the Union for a period of not less than twelve

(12) months immediately previous to nomination.

Candidates for office within the ACT Branch

other than Secretary and Assistant Secretary, must have

worked at the trade for at least the previous three (3)

months, or have been an elected Officer or an employee of

the Union, and have been a financial member of the Union

for at least a similar period.

...."

11. Mrs McHugh (then known as Miss Hazlehurst) became associated with the Branch early in 1982 when she applied for a position within the Branch designated "Field Officer". At a meeting of the Management Committee of the Branch held on 22 February 1982, the applicants were interviewed and Miss Hazlehurst was appointed to the position. She appears to have taken up duty on 1 March 1982. The matter of her appointment was raised at a special general meeting of the Branch held on 1 April 1982, the minutes of that meeting (folio 95 of Exhibit C) recording the following:

"Approval of Field Officer J. Hazelhurst (sic)

Moved by T. Smith Sec. by S. Hamilton."

Although the minutes do not so state, it would appear that the appointment was for a probationary period of three months. At a meeting of the Management Committee of the Branch held on 24 May 1982 (folio 98 of Exhibit C) it was agreed "to keep her in the position of F/O for another three months and then for it to be renewed again". According to the Minute Book (Exhibit C), the next occasion upon which the terms of her engagement were mentioned was at the meeting of the Management Committee of the Branch held on 30 August 1982. The minutes of that meeting (folio 106 of Exhibit C) record:

"The Field Officer's term expired: negotiations

to be held on pay rates also Sick Leave & Rec

Leave for her carried over to next meeting."

12. Before referring to what thereafter transpired in relation to her appointment, it is convenient to refer to the evidence which Mrs McHugh gave, and which I accept, that on 23 March 1982 she filled out, in the name Jeanette Leone Hazlehurst, a printed form of application for membership of the Union, a form in accordance with the form prescribed in Appendix A to the Federal Rules of the Union. The part of the form which made provision for the insertion of the names of those nominating her for membership was not completed. The form records, in the space provided for the insertion of the date of admission to membership, the date 28 April 1982. That entry was made by Miss Hazlehurst herself and is not verified by the signatures of either the President or the Secretary of the Branch.

13. Mrs McHugh also gave evidence, which I accept, that she had a conversation with Mr M.J. Ellis who was then the General Secretary of the Union concerning her eligibility for membership of the Union and the procedure for admission. This conversation, she said, took place on 1 April 1982 though she was unable to say whether it occurred before or after the special general meeting of the Branch held on the evening of that day. Reference has already been made to the minutes of that meeting.

14. The minutes of meetings of the Management Committee of the Branch held during the first half of 1982 as recorded in the Minute Book (Exhibit C) show that at four of those meetings resolutions were passed accepting new members. The minutes of the meetings held on an unspecified date in March 1982, 22 April 1982 and 28 June 1982 respectively record the names of the new members. The names so recorded do not include Miss Hazlehurst. The minutes of the meeting held on 24 May 1982 record only the number of new members, twelve, and do not record their names. It is also to be noted that the minutes do not record a meeting of the Management Committee as having been held on 28 April 1982.

15. By letter dated 30 September 1982 the then Secretary of the Branch, Mr M.G. McElwee, wrote to Miss Hazlehurst on behalf of the Management Committee in the following terms:

"Your letter of 23 September was considered at

the C.O.M. Meeting held on Wednesday, 29

September.

After some discussion, the following motion was

put by the Chairman to the Committee:

That you be paid at the rate of $8.22 per

hour, on a 32 hour basis without the $25.00

entertainment allowance, but with the

pro-rata conditions. Also, it was agreed

to pay you travelling and car allowance at

the rate of 26 cents per kilometre. A

review of this arrangement to be made

six-monthly.

It was further resolved that you resign

from the Union at the end of the financial

period and that the Committee give you

honorary membership.

The motion was duly seconded and carried

unanimously.

If these conditions are acceptable, would you

please advise the Secretary in writing by 8

October 1982."

Miss Hazelhurst's letter dated 23 September 1982 is not in evidence. It may also be noted that the Minute Book (Exhibit C) does not record a meeting of the Management Committee of the Branch as having been held on 29 September 1982. There are minutes of a meeting held on an unspecified date in October 1982 (folio 108 of Exhibit C), those minutes containing the following:

"Moved that the Field Officer resign her

membership at the end of the year and accept

hon. membership."

16. Miss Hazlehurst, by letter dated 8 October 1982, replied in the following terms to the letter dated 30 September 1982:

"I accept the rate of payment, pro-rata

conditions, and travelling allowance for my

position as Field Officer with the Union.

While appreciating that some members of the

Committee might have had in mind the financial

saving to me by giving me honorary membership, I

wish to confirm in writing what I said to you on

the telephone this week, namely that I wish to

remain a financial member of the Union.

I believe I can more effectively carry out the

many varied duties of a Field Officer in our

small union if I am a financial member of the

Union.

You may recall that when Jack Ellis, our General

Secretary, came to Canberra for the Special

Meeting we had earlier this year I asked him if

I could be a financial member of the Union. He

read through our rules that evening and

confirmed that I could be a financial member.

He advised me on the best way of going about

joining. I followed his instructions and was

accepted into membership at the next Management

Committee meeting."

The minutes of the meeting of the Committee of Management of the Branch held on 2 November 1982 (folio 109 of Exhibit C) record the following:

"A letter was sent to Field Officer stating our

conditions of employment to be answered by 8

October 1982.

A reply was received accepting our conditions,

except Field Officer does not wish to relinguish

her financial membership in Union Branch. This

was agreed to."

17. The applicant's contention that an irregularity occurred in the election for Branch Secretary which was completed on 2 March 1988 in that Mrs McHugh was not eligible for election to that office bears a double aspect. First, it is submitted that, at the time Mrs McHugh is said to have become a member of the Union, she was not eligible for such membership. Secondly, it is submitted that, if she were then eligible to be a member of the Union, she was never admitted as such member.

18. It must be accepted that Mrs McHugh was not, at any time in 1982, employed in or seeking to be employed in any of the industries, occupations, callings, locations or industrial pursuits of the painting and decorating industry within the meaning of those expressions in rule 2 of the Federal Rules. It was, however, suggested that, upon being appointed as Field Officer within the Branch she came within that rule as being employed "in connexion with" one or other of those activities. The primary question, however, is in essence, whether, by reason of her appointment as Field Officer within the Branch, she answered the description of a person who had been appointed an officer of the Union or a Branch thereof in terms of the concluding words of rule 2.

19. The evidence establishes that, at the time of Mrs McHugh's appointment to the position of Field Officer, the elected officers of the Branch were full-time employees in the painting and decorating industry and the Branch had no paid official or employee. Upon her appointment, Mrs McHugh devoted three days a week to the activities of the Branch. Later, from September 1982 to October 1984, she worked four days a week and from November 1984 onwards, five days a week. The evidence establishes that the duties which she carried out included -

. The recruitment of new members;

. The collection of contributions and

other moneys due by members;

. The revision of the Branch rules;

. The representation of the Branch in

proceedings before the Conciliation and

Arbitration Commission, including

proceedings resulting in the making of a

new award and proceedings which resulted

in a declaration that the terms of the

award be a common rule of the industry

in the Australian Capital Territory;

. Negotiations on behalf of the Branch

with individual employers, associations

of employers and Commonwealth

departments and authorities concerning

industrial conditions and industrial

disputes;

. The calling and conducting of meetings

of members at particular work sites;

. Ensuring that general meetings of the

Branch and meetings of the Committee of

Management of the Branch were held at

regular intervals;

. The preparation and distribution to

members on a regular basis of

newsletters;

. The carrying out of the duties of a

delegate of the Branch to the Trades and

Labour Council; and

. Until a part-time assistant was employed

in or about June 1984, the keeping of

Branch records, attending to the banking

of moneys and the Branch correspondence

and the carrying out of other

administrative work for the Branch.

These duties were, I accept, carried out largely on her own responsibility without day-to-day direct supervision from the elected officers of the Branch. Mrs McHugh, however, reported regularly to the Branch Secretary and attended at, and reported to, meetings of the Committee of Management of the Branch. She took an active part in the deliberations of the Management Committee but she could not, of course, vote at any such meeting.

20. Branch elections were held early in 1984, nominations closing on 25 January in that year. Mrs McHugh nominated for election to one of five positions of non-official member of the Management Committee of the Branch. Only four nominations were received for the five positions and, on 27 January 1984, the Returning Officer declared Mrs McHugh elected to one of the positions. Her eligibility to hold that position depended upon her having been an elected officer or employee of the Union and a financial member of the Union for a period of at least the previous three months (see rule 18 of the Branch Rules).

21. An election to fill the office of Branch Secretary for the remainder of the term of the occupant of that office who had then recently resigned was held in July 1985, nominations closing on 8 July 1985. Mrs McHugh nominated for election to the office and, there being no other candidate, she was, on 12 July 1985, declared by the Returning Officer duly elected. Her eligibility to hold that office depended upon her having been a financial member of the Branch for a period of not less than twelve months immediately prior to nomination (ibid).

22. The circumstance that the rules of the organization make no provision for an office of "Field Officer" within the Branch and do not prescribe the powers and duties of such an officer, while relevant to the question under consideration, cannot be decisive of it. It was, in my opinion, open to the Committee of Management of the Branch to create a position of "Field Officer" and, there being no relevant prohibition in either the Federal or the Branch Rules, to assign such powers and duties to that position as the Committee saw fit. In the light of the evidence given by Mrs McHugh as to the duties she was required to perform, and the powers she was permitted to exercise, as Field Officer, I am satisfied that the position she occupied was a position which carried with it administrative and executive duties and a substantial degree of responsibility. Having regard to those duties and responsibilities, I do not think it would be correct to describe her as a "mere employee" of the Branch. In my opinion, Mrs McHugh was, while Field Officer of the Branch, properly described as an appointed officer of the Branch within the meaning of that expression in rule 2 of the Federal Rules. Support for that conclusion is, I think, to be found in Landeryou v. Taylor (1969) 15 FLR 147. Mrs McHugh's duties and responsibilities as Field Officer went well beyond those of the "dues collection officer" whose position was considered in that case. It should, perhaps, be mentioned that it was not argued that the word "appointed" in rule 2 of the Federal Rules is to be read as excluding all but elected officers (ibid. at p 157).

23. I am, therefore, of opinion that Mrs McHugh was, upon being appointed Field Officer of the Branch, eligible to be a member of the Union.

24. The next question is whether it has been demonstrated that Mrs McHugh, being eligible for membership of the Union, became a member. There is no doubt that she signed an application form for membership. The applicant submits, however, that she was not nominated by two financial members of the Branch as required by rule 5(1) of the Branch Rules and that her application was not submitted for approval to a general meeting or to a meeting of the Management Committee of the Branch as required by that rule.

25. I think it may be accepted from a perusal of the Minute Book (Exhibit C) that it was the general practice of the Branch for applications for membership of the Union to be placed before a meeting of the Committee of Management of the Branch and not before a general meeting of the Branch. Mrs McHugh's evidence is that she believed that her application did go before a meeting of the Management Committee and was approved in terms of rule 5(1) of the Branch Rules but she was unable to identify the date on which that occurred. While it is true that rule 5(1) of the Branch Rules requires that an applicant for membership be nominated by two financial members of the Branch and the prescribed form in Appendix A to the Federal Rules makes provision for those nominating a candidate for membership to sign the form, neither the Federal nor the Branch Rules require that the nominators sign the application. I do not doubt that the Committee of Management of a Branch of the Union may approve an application for membership notwithstanding the absence from the form of application of the signatures of the nominators provided the Committee has satisfied itself, by whatever means it thinks appropriate, that two financial members of the Union have, in fact, nominated the candidate for membership. In any event, in view of the lapse of time, s.171F of the Act would operate to validate an act of the Committee of Management of the Branch approving Mrs McHugh's application for membership even if the application were defective in not having been signed by two financial members of the Union as nominators.

26. As has already been mentioned, none of the minutes of the meetings of the Committee of Management of the Branch held in the first half of 1982 record, by name, Mrs McHugh (or Miss Hazlehurst) as having been approved for membership. It cannot, however, be asserted with confidence that she was not one of the twelve members whose applications for membership were approved at the meeting of the Committee of Management held on 24 May 1982. The evidence clearly does not negative that as a possibility. Further, some significance must, I think, be attached to the minutes of the meetings of the Committee of Management of the Branch recorded as having taken place on an unspecified date in October 1982 and on 2 November 1982, the relevant parts of which have already been set out, and to the correspondence between the Branch Secretary and Mrs McHugh dated 30 September and 8 October 1982. In addition, there is the unchallenged evidence of Mrs McHugh that she paid the entrance fee prescribed by rule 6(1) of the Branch Rules and paid, and has continued to pay, all contributions and other moneys required under those rules to be paid by a member.

27. Taking all these matters into account, I am prepared to find, on the balance of probabilities, and I do find, that Mrs McHugh was duly admitted to membership of the Union in or about May 1982.

28. I turn to the second of the alleged irregularities, namely that ballot papers were sent to a number of persons who were not, at the relevant time, financial members of the Union.

29. Although the evidence is not entirely satisfactory, I accept that, of the 615 ballot papers issued, 85 were issued to members of the Union each of whom had made an arrangement with his employer, apparently in most, if not all, cases the Australian Government, for deductions to be made from his wages, payable fortnightly, and remitted to the Union by way of part payment of the contributions payable by him under the Branch Rules. The precise terms of the arrangements are not in evidence. Nor did any of the 85 members concerned give evidence.

30. Under the Branch Rules, the contributions payable by an ordinary member are fixed as an annual sum. The contributions are payable by two equal instalments. The instalments are expressed to be due and payable in advance as at 1 June and 1 December in each year (rule 6(2)(b) of the Branch Rules). An ordinary member is a financial member if he has paid all dues and monies owing within 14 days after the date on which contributions fall due, provided that a member is deemed to be immediatley financial upon payment at any time of all dues and monies owing (rule 8(1) of the Branch Rules).

31. The accounting practice adopted by the Branch in the case of members paying their contributions by fortnightly deduction from their wages is clearly established by the evidence. Mrs McHugh said:

"Their accounts .... are debited as from each

half year; so that at the beginning of a half

year they will be seen to be fully in debit.

Then every fortnight that amount is deducted so

they would become $6 less every fortnight until

the end of that financial year, then they would

have a nought balance."

As was subsequently clarified, the witness' answer is to be understood as referring to a nil balance at the end of the financial half year as well as to the end of the financial year.

32. Although there was evidence that the Branch has for many years received contributions from a number of its members of way of fortnightly pay-roll deductions, no steps have ever been taken to amend the Branch Rules to recognise the practice or to make special provision concerning the circumstances in which a member paying his contributions by that method is to be regarded as being financial. It is abundantly clear that under the rules as they presently stand, such a member will not be financial unless he makes an initial payment equal to half of the annual contribution prior to the fortnightly deductions commencing. Even in such a case, the member would become unfinancial in the event of the rate of contribution being increased and he failed to make a further lump sum payment in advance to supplement the deductions to be thereafter made from his wages. Nonetheless, so it would appear, no member who was paying his contribution by way of pay-roll deductions was, on that account alone, denied the privileges of membership or the opportunity to stand for office.

33. On the Branch Rules as they stand, the conclusion is, in my view, inescapable that the 85 members referred to were at the time of the election unfinancial and disentitled to vote. Equally the conclusion is inescapable that the irregularity may have affected the result.

34. Counsel for the Union and Mrs McHugh submitted that rule 6(2)(b) of the Branch Rules requiring that contributions be paid in advance, in so far as it prevented members of the Branch who were paying their contributions by way of fortnightly deduction from their wages from being financial members of the Branch, was a rule imposing upon members conditions and restrictions which are oppressive, unreasonable and unjust within the meaning of s.140(1) of the Act.

35. While it is clear that the Branch Rules and, indeed, the Federal Rules require amendment in order that members may remain financial while availing themselves of the practice of paying contributions by pay-roll deductions, I am not prepared to hold that a rule requiring contributions to be paid in advance is oppressive, unreasonable or unjust within the meaning of that provision.

36. A further irregularity was alleged, namely that financial members of the Branch were deprived of the opportunity to vote by reason that, in each case, a ballot paper was either not sent to the member or was sent to the member at an address other than the member's correct address.

37. In the final analysis, only seven persons were involved. As to two, it was asserted that they were financial members of the Branch but were not recorded on the list of financial members of the Branch made available to the Returning Officer for the purposes of the election and were not, in consequence, sent a ballot paper. The evidence, however, does not establish that they were financial members of the Branch at the relevant time.

38. As to the remaining five, being members to whom a ballot paper was sent but at an address alleged to be an address other than their correct address, the evidence does not establish that any of those members did not receive a ballot paper.

39. This ground of irregularity has, therefore, not been made out.

40. In the result, I made the following declarations:

(a) that Mrs McHugh was, upon being

appointed Field Officer of the Branch,

eligible to be a member of the Union;

(b) that Mrs McHugh was duly admitted to

membership of the Union in or about May

1982;

(c) that Mrs McHugh was eligible for

election to the office of Branch

Secretary of the Union at the election

completed on 2 March 1988;

(d) that an irregularity occurred in or in

connexion with the election for the

office of Branch Secretary of the Union

which was completed on 2 March 1988 in

that ballot papers were issued to

members other than financial members of

the Branch, namely to members who had

arranged with their respective employers

for deductions to be made from their

wages, payable fortnightly, and remitted

to the Union by way of part payment of

the contributions payable by them under

the Branch Rules;

(e) that the irregularity may have affected

the result of the election;

(f) that rule 6(2)(b) of the Branch Rules

requiring that contributions be paid in

advance is not a rule imposing upon

members conditions and restrictions

which are oppressive, unreasonable or

unjust within the meaning of s.140(1) of

the Act; and

(g) that it has not been established that

financial members of the Branch were

deprived of the opportunity to vote by

reason that a ballot paper was either

not sent to the member or was sent to

the member at an address other than the

member's correct address.

41. At the conclusion of the hearing, the parties requested that, upon announcing my findings, I should not make final orders but should allow the parties an opportunity to consider their position and speak to the relief, if any, which should be granted. I propose to accede to that request. The matter will, therefore, be adjourned to a date to be fixed.