Reg. 115(1)(a) v IN THE FEDERAL COURT OF AUSTRALIA [1979] FCA 76 | Case summary

Federal Court of Australia|1979-07-01|Before: Sweeney J, Arthur J, Arptur J, Mahon P

Industrial law - whether rules of an organization are oppressive, unreasonable and unjust - whether rules provide for control of committees of an organization - branches of varying sizes - voting at national conference weighted in

Conciliation and Arbitration Act, 1904 - s.140(1)(a):

REDFORD, PETER KEVIN PRESDUE, JOHN BERNARD FLYNN and JOHN WILLIAM DRYSDALE

ARTHUR J. MOBBS,, WILLIAM JAMES BURTON, KEVIN WALSH, IVAN R. BASSETT, CHRISTOPHER B. CARROLL, A.J. HALL, P.B. LINTHORNE, P.T. ARMSTRONG, M.T. O'COMNOR, J.E. HESLEWOOD, P.I. ISLIP, J.L. SLATTERY,

P.F. CONNOLLY, W.A. MALLY, T.J. PLANNAGAN, J.P. MILES, D.W. O'NEIL and THE COMMONWEALTH BANK OFFICERS' ASSOCIATION

AND IN THE MATTER of an application under s.141 of the said Act

KEVIN CHARLES SCOTT, ANTHONY GALVIN REDFORD, PETER KEVIN PRESDEL, JOHN BERNARD FLYNN and JOMNN WILLIAM DRYSDALE

ARTHUR _GIORGE WELLFORD ROLFE, ROBMRT RUDGE, ARPTUR J. MORBS, WILLIAM JAMES BURTON, KEVIN WALSII, IVAN R. bASSETT, CHRISTOPHER EB. CARFOLL, 4.0. HALL,

M.T. O'CONNOR, J.E. HESLEWOOD, P.F. ISLIP, JL. SLATTERY, P.T. THORNE, P.A, HSLTON, D. MAHON, P.F. CONNOLLY, W.A, LALEY,

(1) The individual respondents perform and cbserve the rules

the following resolutions purporting to have been carried at special meetings of the conference of the Commonwealth Bank Officers' Association on 14 and 15 June, 1979:

"That Conference expresses its concern that the N.S.W. Executive put a resolution to the Stopwork Meeting on 5th June, 1979 in Sydney in direct conflict with C.B.0.A. Policy by advocating acceptance of the

Corporation's O.S.F. proposals and that Conference censures them for their action."

"That Conference expresses its concern that the resokution moved by the Federal President at the New South Wales 0.S.F. Stopwork Meeting on 5th June, 1979 operated in direct conflict with C.B.0.A. Policy of retaining the existing post-retirement adjustment formula and that his actions served to undermine the efforts of all other Divisions at subsequent meetings.

Further, Conference has no confidence in the Federal President and censures him for his part in the proceed- - ings of the N.S.W. Stopwork Meeting."

IN THE MATTER of the Conciliation and Arbitration Act, 1904

KEVIN CHARLES SCOTT, ANTHONY GALVIN REDFORD, PETER KEVIN PRESDEE, JOHN BERNARD FLYNN and JOHN WILLIAM DRYSDALE

ROBERT RUDGE, ARTHUR J. MOBBS, WILLIAM JAMES BURTON, KEVIN WALSH, IVAN R. BASSUY?, CHRISTOPHER B. CARROLL, A.J.HALL B.B, LINTHORNE, P.T. ARMSTRONG, M.T. O'CONNOR, J.E. UMSLMVOOD, P.F. TSLIP, J.L. SLATTERY,

W.A. MALFY, T.J. FLANNAGAN, J.P. MILES, D.W. O'NETL and THE COMMONWEALTH BANK OFFICERS' ASSOCIATION

AND IN THE MATTER of an application under ' s.141 of the said Act

KEVIN CHARLES SCOTT, ANTHONY GALVIN REDFORD, PETER _KEVIN

PRISDEE, JOHN BERNARD FLYNN and JOHN WILLIAM DRYSDALE

ARTHUR GEORGE WELLFORD ROLFE, ROBERT RUDGE, ARTHUR J. MOBBS, WILLIAM JAMES BURTON, KEVIN WALSI, IVAN R. BASSETT, CHRISTOPHER B. CARROLL, A.J.HALL B.B. LINUICRNYE, P.T. ARMSTRONG, M.T. O'CONNOR, J.L. MASTOWOOD, P.F. ISLIP, J.L. SLATTERY,

W.A. MALEY, T.d. FLANNAGAN, J.P. MILES, and D.w,. O'NEILL

I These applications concern the Commonwealth Bank Officers'

Association ("the association"). It is an organization of employees members of which are employees of the Commonwealth Banking Corporation, its subsidiaries, its constituent banks and their subsidiaries, the Reserve Bank of Australia and any

banking agency or instrumentality of the Australian Government.

The claimants are officers and members of the association and the respondents are delegates to the federal conference. It is not disputed that the individual respondents are under an obli-

gation to perform and observe the rules of the association.

The applications ultimately pressed sought orders concerning the conduct of and certain resolutions carried at, special meet- ings of the federal conference on 14 and 15 June last and the manner in which the latter was convened. Ultimately it was agreed that orders should be made that the individual respond- ents treat as null and void the following resolutions carried at the special meetings of the federal conference held on 14 and 15 June, 1979. Those resolutions were as follows: {a) "That Conference expresses its concern that the N.S.W. Executive put a resolution to the Stopwork Meeting on 5th June, 1979 in Sydney in direct conflict with C.B.0.A. Policy by advocating acceptance of the Corporation's O.S.F. proposals and that Conference censures them for their action." (b) "That Conference expresses 1ts concern that the resolution moved by the Federal President at the New South Wales 0.S.F. Stopwork Meeting on 5th June, 1979

operated 1n direct conflict with C.B.0.A. Policy of retaining the existing post-retirement adjustment

~rpregmnmerr a meer er ren rn ten ee ee en nee ne cen wen - Ye are

'formula and that his actions served to undermine the efforts of all other Divisions at subsequent meetings.

Further, Conference has no confidence in the Federal President and censures him for his part in the proceedings of the N.S.W. Stopwork Meeting."

Other issues raised by the applications with the exception of an attack on the validity of r.24(a) of the rules of the association were abandoned. I think the parties acted wisely and temperately in these attitudes and I will make an order

The issue remaining then is the validity of r.24(a) of the rules of the association. It is trite that in considering whether rules of an organization offend against s.140 of the Act regard should be had to the structure and history of the organization concerned. In this organization persons eligible for membership in terms of the rules as set out above are attached to divisions. There are seven divisions, one in each of the States of New South Wales, Queensland, Victoria, Western Australia and Tasmania, one in South Australia/Northern Territory and one comprising officers of the Reserve Bank. Each division has a considerable degree of autonomy. However it is clear that wages and conditions of employment are regulated by agree- ment reached in negotiations between federal officers and the employers and consequently there is a considerable degree of

Bach division has general meetings and there are reasonable

provisions for special general meetings to be called. They

include a provision that a special general meeting may be called by requisition of ten percent of the financial members of a division. In addition to the general meetings there are

divisional officers and a divisional committee of management.

of the divisional officers, the president and secretary are elected triennially and the divisional treasurer and other

So far as the association is concerned federally, the supreme governing body is the federal conference. It consists of delegates elected from each division. Each division has ore delegate for the first 1,000 members or part thereof plus one additional delegate for every additional 2,000 members or part thereof. The delegates are elected by and from each divisional committee. In addition to the delegates, the federal president, deputy president, three vice~presidents, treasurer, secretary and assistant federal secretary, eight officers in all, are entitled to be present having the right to speak, move or second motions but no right to vote. A federal officer may be elected as a delegate from a branch in which case of course he can vote. Divisional secretaries may also attend federal conference but have no right to speak or vote unless they are

The federal conference has wide powers and is the supreme

governing body in the association. It is to meet in September

of each year or as required by the calling of a special conference. A special conference may be convened by the federal executive or the federal President or upon demand

of any four divisional committees or a number of divisional committees whose delegates represent more than fifty percent of the voting power at federal conference. In addition to the federal conference there is a federal executive consisting of eight officers mentioned entitled to attend the federal conference. Of those officers, the federal President, federal Secretary and assistant federal secretary are elected by members by secret postal ballot. The other five federal officers are also elected by secret postal ballot of the members and upon these two elections being completed the eight persons concerned elect by and from their number the federal treasurer and the deputy federal president. The remaining three federal officers become the three federal vice-presidents. The eight officers are elected triennially

and it appears that the next election will be held in 1981.

The membership of the Association as at 31 December each year is taken as the basis for calculating the number of delegates each division is entitled to. The figures for

membership at that date and as at 31 May, 1979 are as follows:

31.12.78 31.5.79 New South Wales 12,593 13,212 Victoria 4,415 4,576 Queensland 4,264 4,329 South Australia/Northern Territory 1,992 2,040 Western Australia 1,912 1,906 Tasmania 507 499

The following table shows the percentage of votes each branch was entitled to, the number of delegates and the percentage the membership of the branch bore to the total membership as at 31.12.78 and as at 31.5.79:

(31/12/78) (31/5/79) N.S.W. 35 44.97 45.56 Vactoria 15 15.77 15.87 Queensland 15 15.23 15.01 S. Australia 10 7.11 7.07 W. Australia 10 6.83 6.61 Tasmania 5 1.81 1.73 Reserve Bank _1i0 8.28 8.15

It is apparent from this that the New South Wales branch has a greater percentage of members than it has of delegates to the conference while at the other end of the scale the Tasmanian branch with 1.81% of the members has 5% of the

The claim made is that because of these factors r.24(a) is in contravention of s.140 in that the rules fail to provide for the control of committees of the organization by the members and that the rule is, having regard to the objects of the

There are some additional factors to be taken into account. In

the first place, considerable powers are given to the federal

president. He has a casting vote at conference and the executive and he has power to convene a special meeting of conference. The federal president is and apparently has for some twenty years at least been a member of the New South Wales branch.

The same is true of the secretary and assistant secretary and the federal treasurer. Pour out of the eight federal officers then all come from the New South Wales branch. Since it is necessary for the federal officers to reside in New South Wales this practice will almost inevitably continue. Moreover, the rules make provision for a plebiscite to be taken of members on particular issues. A plebiscite is to be taken federally when the federal conference or federal executive or

If an important issue arises on which two branches may be outvoted then so far as the New South Wales branch is concerned the matter could be brought before the federal executive.

Four of those persons including the president could require a plebiscite and it seems clear that if the divisions on the particular issue were on a divisional basis the federal officers would be most susceptible to influence by a majority of the members particularly if that included one single branch with 35% of the members. In addition the figures of membership show that New South Wales on the present basis plus recruit- ment anticipated by all officers will be entitled to another delegate in 1980 and it will then in my view have a sufficient voting power to ensure that any likely combination of branches

representing a majority of members is not thwarted.

So far as control of the committees by the members arises

it will be seen that there exists reasonable machinery for members to raise any issue within their division to have it determined by special meeting or if necessary by plebiscite or to have it considered by a meeting of the federal executive or federal conference. Moreover, the fact that there are periodic elections by secret ballot ensures a degree of control at least equal to that exercised by Australian voters on their parliamentary representatives. Section 141 of the Act ensures that a member or members may enforce adherence

to the rules on the part of office bearers. Having regard

to all these factors, I am satisfied that the rules suffic-

iently provide for control of the committees by the members.

The question principally argued before me was whether the rule was oppressive, unreasonable or unjust having regard to the objects of the Act. In previous cases the Court has stressed that the relevant object is "to encourage the organ- ization of representative bodies of employees and to encourage the democratic control of organizations and the full partici- pation by members of such an organization in the affairs of

The question of unreasonableness must be looked at against the background of the organization. Some further factors need to be stressed. In the first place, organization is in divisions which consist in members within a given State or in one case

members within a particular banking organization. While it

is true that there will be loyalty to a division it is also true that in very many cases there will be mixed feelings and beliefs in a division. This may or may not be reflected

in the composition of the delegation to the conference.

In the second place this Court has stressed that a balance

must be maintained between the viability of an organization

and its democratic control. By the very nature of organizations

they will be composed of branches of varying sizes. 'The dilemma thus created is well illustrated in the evidence of Mr. Scott and other witnesses. On the one hand it is clear that a scheme must provide for one delegate from Taemania

and since its membership is only 507 then a scheme where each branch have the same relative number of delecates as its membership bore to the total membership would involve a con~ ference of 56 delegates together with other persons attendind the conference and it seemed common ground that such a confer-

ence would be unwieldy and unsuitable. The alternative to

having a conference of this size would be to provide for a lesser number of delegates exercising a card vote. However evidence was given before me and indeed it seemed common ground that the organization was dissatisfied with the system of card voting which had previously existed. It seems to me quite probable that benefits may result from an exchange of views and debating at a conference and that by this method

a consensus may well be reached. I do not regard the

For all these reasons some scheme must be found between these two extremes and in my view the present scheme for these reasons is not oppressive, unreasonable or unjust. This is emphasised by the fact as I have said that the most likely field of incréased recruitment is New South Wales where it

is agreed it is most likely that substantial increases in membership will take place and in 1980 that branch will have

I am therefore of the view that the rule does not contravene in any ways.140 and I discharge the orders nisi so far as they

(1) That the andividual respondents perform and observe the rules of the organization by treating as void and of no effect the following resolutions purporting to have been carried at special meetings of the conference of the Commonwealth Bank Officers' Association on 14 and 15 June, 1979:

(a) "That conference expresses its concern that the N.S.W, Executive put a resolution to the Stopwork Meeting on 5th June, 1979 in Sydney in direct conflict with C.B.0.A. Policy by advocating acceptance of the Corporation's 0.S.F. proposals and that Conference censures them for their action."

(b) "That conference expresses its concern that the resolution moved by the Federal President at the New South Wales 0.S.F. Stopwork Meeting on 5th June, 1979 operated in direct conflict with C.B.0.A. Policy of retaining the existing post-retirement adjustment formula and that his actions served to undermine the efforts of all other Divisions at subsequent meetings.

Further, Conference has no confidence in the Federal President and censures him for his part an the proceedings of the N.S.W. Stopwork Meeting."

1 ~~, ,; lice wt sf that this and the (uw pre 7 a RP '3 4.0 a bLruec enry cf Lhe l - . a -_ Ree 3 Cor sea ie perein oF us ucsour ' Mr. Ju-i-ce ZT @ Swe ey : { : fal A o yy? M6 uow, WulOunvery i , ( Assvciate

Industrial law ~ whether rules of an organization are oppressive, unreasonable and unjust - whether rules provide for control of committees of an organization - branches of varying sizes - - voting at national conference weighved in favour of smaller branches

Conciliation and Arbitration Act, 1904 - s.140(])(a):

Rane ee STE ROR SE Fe me er rr ee RR I eee enn me - -

IN THE MATTER of the Conciliation and Arbitration Act, 1904

AND IN THE MATTER of an application under ss.140 and 141 of the said Act

BETWEEN KEVIN CHARLES SCOUT, ANTHONY GALVIN REDFORD, PETER KEVIN PRESDEE, JOHN BERNARD FLYNN and JOHN WILLIAM DRYSDALE

AND ARTHUR GEORGE WELLFORD ROLFE, KUBERT RUDGE ARTIUR J. MOBBS, WILLIAM JAMES BURTON, KEVIN WALSH, IVAN R. BASSETT, CHRISTOPHER B. CARROLL, A.J. HAIL, B.B. LINTHORNE, P.T. ARMSTPONG, M.T. O'CONNOR, J.5- HESLEWOOD, P.F. ISLIP, J.L. SLATTERY,

P.T. THORNE, P.A. HILTON, D. MAHON, P.F. CONNOLLY, W.A. MALEY, T.J. FLANNAGAN, | oP. MILES, D.W. O'NEIL and THE

AND IN THE MATTER of an application under s,141 of the said Act

BETWEEN KEVIN CHARLES SCOTT, ANTHONY GALVIN REDFORD, PETER KEVIN PRESDEE, JOHN BERNARD FLYNN and JOHN WILLIAM DRYSDALE

AND ARTHUR GEORGE WELLFORD ROLFF, ROBERT RUDGE, ARTHUR J. MOBBS, WILLIAM JAMES BURTON, KEVIN WALSH, TVAN R. BASSETT, CHRISTOPHER B. CARROLL, A.J. HALL,

M.T. O'CONNOR, J.B. HUSLEWOOD, P.F. ISLIP, J.L. SLATTURY, P.T. THORNE, P.A. ITLTON, D. MAHON, P.F. CONNOLLY, W.A. MALEY,

JUDGE MAKING ORDER: J.B. Sweeney J. DATE OF ORDER: 9 August, 1979 WHERE MADE: Sydney

(1) The individual respondents perform and observe .ne rules of the organization by treating as void and of no effect

the following resolutions purporting to have been carried at special meetings of the conference of the commonwealth Bank Officers' Association on 14 and 15 Sune, 1979:

"That conference expresses its concern that the N.S.W. Executive put a resolution to the Stopwork Meeting on 5th June, 1979 in Sydney in direct conflict with C.B.0.A, Policy by advocating acceptance of the Corporation's 0.S.F. proposals and that conference censures them for their action."

"That conference expresses its concern that the resotution moved by the Federal President at the New South wales 0.S.F. Stopwork Meeting on 5th June, 1979 operated in direct conflict with C.B.0.A. Policy of retaining the existing post-retirement adjustment formula and that his actions served to undermine the efforts of all other Divisions at subsequent meetings.

Further, Conference has no confidence in the Federal President and censures him for his part in the proceed- ings of the N.S.W. Stopwork Meeting."

IN THE MATTER of the Conciliation and ' Arbitration Act, 1904

AND IN THE MATTER of an application under ss.140 and 141 of the said Act

BETWEEN KEVIN CHARLES SCOTT, ANTHONY GALVIN REDFORD, PETER KEVIN PRESDEE, JOIN BERNARD FLYNN and JOHN WILLIAM DRYSDALE

AND ARTHUR _ GEORGE WELLFORD ROLFL, ROBERT RUDGE, ARTHUR J. MOBBS, WILLIAM JAMES BURTON, KIVIN WALSH, JVAN R. BASSETT, CHRISTOPHER B. CARROLL, A.J.IALL, B.B. LINTHORNE, P.T. ARMSTRONG, M.T. O'CONNOR, J.E. HESLEWOOD, P.F. ISLIP, J.L. SLATTERY,

W.A. MALEY, T.J. FLANNAGAN, J.P. MILES, D.W. O'NEIL and THE COMMONWRALTH BANK OFFICERS ' ASSOCIATION

AND IN THE MATTER of an application under ' s.141 of the said Act

BETWEEN KEVIN CHARLES SCOTT, ANTIJONY GALVIN REDFORD, PETER KEVIN PRESDEE, JOHN BERNARD [LYNN and JOHN WILLIAM DRYSDALE

AND ARTHUR_GEORGE WELLFORD ROLFE, ROBERT RUDGE, ARTHUR J. MOBBS, WILLIAM JAMES BURTON, KIVIN WALSH, IVAN R. BASSETT, CHRISTOPHER B. CARROLL, A.J.HALL, B.B. LINTHCRNE, P.T. ARMSTRONG, M.T. O'CONNOR, J.E. HMSTRWOOD, P.F. ISLIP, J.L. SLATTERY,

P.T. THORNE, P.A. HILTON, D. MAIION, P.F. CONNOLLY, W.A. MALEY, T.d. FLANNAGAN, J.P. MILES, and D.W. O'NMIL

rn ee me Se CET eae arene ne re ee re a ESRD ATE PI ner ean, a on YOR Ls

These applications concern the Commonwealth Bank Officers' Association ("the association"). It is an organization of employees members of which are employees of the Commonwealth Banking Corporation, its subsidiaries, its constituent banks and their subsidiaries, the Reserve Bank of Australia and any

banking agency or instrumentality of the Australian Government.

The claimants are officers and members of the association and the respondents are delegates to the federal conference. It is not disputed that the individual respondents are under an obli-

gation to perform and observe the rules of the associ1ation.

The applications ultimately pressed sought orders concerning

the conduct of and certain resolutions carried at, special meet-

ings of the federal conference on 14 and 15 June last and the

manner in which the latter was convened. Ultamately it was

agreed that orders should be made that the individual respond-

ents treat as null and void the following resolutions carried

at the special meetings of the federal conference held on

14 and 15 June, 1979. Those resolutions were as follows:

(a) "That Conference expresses its concern that the

N.S.W. Executive put a resolution to the Stopwork Meeting on 5th June, 1979 in Sydney in direct conflict with C.B.0.A. Policy by advocating acceptance of the Corporation's O.S.F. proposals

and that Conference censures them for their action."

(b) "That conference expresses its concern that the resolution moved by the Federal President at the

New South Wales 0.S.F. Stopwork Meeting on 5th June, 1979

operated in direct conflict with C.B.0O.A. Policy of retaining the existing post-retirement adjustment

formula and that his actions served to undermine the efforts of all other Divisions at subsequent meetings.

Federal President and censures him for his part in the proceedings of the N.S.W. Stopwork Meeting."

The issue remaining then is the validity of r.24(a) of the rules of the association. It is trite that in considering whether rules of an organization offend against s.i40 of the Act regard should be had to the structure and history of the organization concerned. In this organization persons eligible for membership in terms of the rules as set out above are attached to divisions. There are seven divisions, one in each of the States of New South Wales, Queensland, Victoria, Western Australia and Tasmania, one in South Australia/Northern Territory and one comprising officers of the Reserve Bank. Each division has a considerable degree of autonomy. However it is clear that wages and conditions of employment are regulated by agree- ment reached in negotiations between federal officers and the employers and consequently there is a considerable degree of

#ach division has general meetings and there are reasonable

provisions for special general meetings to be called. They

PO LETTE ES OS NPT TI TOTS EIT ERAN TERE PET SS RRS TO IR EO PU EI OGY ETE EY ETE VE TT EY NEE Po et Om werent

include a provision that a special general meeting may be called by requisition of ten percent of the financial members of a division. In addition to the general meetings there are

divisional officers and a divisional committee of management.

of the divisional officers, the president and secretary are elected triennially and the divisional treasurer and other

So far as the association 1s concerned federally, the supreme governing body is the federal conference. It consists of delegates elected from each division. Lach division has ore delegate for the first 1,000 members or part thereof plus one additional delegate for every additional 2,000 members or part thereof. The delegates are elected by and from each divisional committee. In addition to the delegates, the federal president, Geputy president, three vice-presidents, treasurer, secretary and assistant federal secretary, eight officers in all, are entitled to be present having the right to speak, move or second motions but no right to vote. A federal officer may be elected as a delegate from a branch in which case of course he can vote. Divisional secretaries may also attend federal conference but have no right to speak or vote unless they are

The federal conference has wide powers and is the supleme

governing body in the association. It is to meet in September

of each year or as required by the calling of a special conference. A special conference may be convened by the federal executive or the federal President or upon demand

of any four divisional committees or a number of divisional committees whose delegates represent more than fifty percent of the voting power at federal conference. In addition to the federal conference there is a federal executive consisting of eight officers mantioned entitled to attend the federal conference. Of those officers, the federal President, federal Secretary and assistant federal secretary are elected by members by secret postal ballot. The other five federal officers are also elected by secret postal ballot of the members and upon these two elections being completed the eight persons concerned elect by and from their number the federal treasurer and the deputy federal president. The remaining three federal officers become the three federal vice-presidents. The eight officers are elected triennially

and it appears that the next election will be held in 1981.

The membership of the Association as at 31 December each year is taken as the basis for calculating the number of delegates each division is entitled to. The figures for

membership at that date and as at 31 May, 1979 are as follows:

31.12.78 31.5.79 New South wales ; 12,593 13,212 Victoria 4,415 4,576 Queensland 4,264 4,329 South Australia/Northern Territory 1,992 2,040 Western Australia 1,912 1,906 Tasmania 507 499

1 ETAT TO TE EES CTE ONT = SST RTE TEE TE SEER ER RE OR Se ee

(31/12/78) (31/5/79) N.S.W. 35 44.97 45.56 Victoria 15 15.77 15.87 Queensland 15 15.23 15.01 S. Australia LO 7.11 7.07 W. Australia 10 6.83 6.61 Tasmania 5 1.81 1.73 Reserve Bank _10 8.28 8.15

There are some acditional factors to be taken into account. in

the first place, considerable powers are given to the federal

cr ener TR TE EET OR TE ET STREET TO ATSC OATES EY NEEL MITE Pree

president. He has a casting vote at conference and the executive and he has power to convene a special meeting of conference, The federal president is and apparently has for some twenty years at least been a member of the New Scuth Wales branch.

The same is true of the secretary and assistant secretary and the federal treasurer. Four out of the eight federal officers then all come from the New South Wales branch. Since it is necessary for the federal officers to reside in New South Wales this practice will almost inevitably continue. Moreover, the rules make provision for a plebiscite to be taken of members on particular issues. A plebiscite is to be taken federally when the federal conference or federal executive or

If an important issue arises on which two branches may be outvoted then so far as the New South Wales branch 1s concerned the matter could be brought before the federal executive.

show that New South Wales on the present basis plus recruit- - ment anticipated by all officers will be entitled to another delegate in 1980 and it will then in my view have a sufficient voting power to ensure that any likely combination of branches

representing a majority of members is not thwarted.

so far as control of the committees by the members arises

it will be seen that there exists reasonable machinery for members to raise any issue within their division to have it determined by special meeting or if necessary by plebiscite or to have it considered by a meeting of the federal executive or federal conference. Moreover, the fact that there are periodic elections by secret ballct ensures a degree of control at least equal to that exercised by Australian voters on their parliamentary representatives. Section 141 of the Act ensures that a member or members may enforce adherence

to the rules on the part of office bearers. Maving regard

to all these factors, I am satisfied that the rules suffic-

iently provide for control of the committees by the members.

The question principally argued before me was whether the

rule was oppressive, unreasonable or unjust having regard to the objects of the Act. In previous cases the Court has stressed that the relevant object is "to encourage the organ- ization of representative bodies of employees and to encourage the democratic control of organizations and the full partici- pation by members of such an organization in the affairs of

members within a particular banking organization. While it

is true that there will be loyalty to a division it is also true that in very many cases there will be mixed feelings and beliefs in a division. This may or may not be reflected

in the composition of the delegation to the conference.

In the second place this Court has stressed that a balance

must be maintained between the viability of an organization

and its democratic control. By the very nature of organizations

they will be composed of branches of varying sizes. The dilemma thus created is well illustrated in the evidence of Mr. Scott and other witnesses. On the one hand it is clear that a scheme must provide for one delegate from Tasmania

and since its membership is only 507 then a scheme where each branch have the same relative number of delegates as its membership bore to the total membership would involve a con- ference of 56 delegates together with other persons attending the conference and it seemed common ground that such a confer- ence would be unwieldy and unsuitable. The alternative to having a conference of this size would be to provide for a lesser number of delegates exercising a card vote. However evidence was given before me and indeed it seemed common ground that the organization was dissatisfied with the system of card voting which had previously existed. It seems to me quite probable that benefits may result from an exchange of views and debating at a conference and that by this method

a consensus may well be reached. I do not regard the

For all these reasons some scheme must be found between these two extremes and in my view the present scheme for these reasons is not oppressive, unreasonable or unjust. This is

' emphasised by the fact as I have said that the most likely field of increased recruitment is New South Wales where it is agreed it 1s most likely that substantial increases in membership will take place and in 1980 that branch will have

I am therefore of the view that the rule does not contravene in any ways.140 and I discharge the orders nisi so far as they

(1) That the individual respondents perform and observe the rules of the organization by treating as void and of no effect the following resolutions purporting to have been carried at special meetings ef the conference of the Commonwealth Bank oOfficers' Association on 14 and 15 June, 1979:

(a) "That Conference expresses its concern that the N.S.W. Executive put a resolution to the Stopwork Meeting on 5th June, 1979 in Sydney in direct conflict with C.B.0.A. Policy by advocating acceptance of the Corporation's 0O.S.F. proposals and that Conference censures them for their action."

(b) "That conference expresses its concern that the resolution moved by the Federal President at the New South Wales 0.S.F. Stopwork Meeting on 5th June, 1979 operated in direct conflict with C.B.0.A. Policy of retaining the existing post-retirement adjustment formula and that his actions served to undermine the efforts of all other Divisions at subsequent meetings.

Further, Conference has no confidence in the Federal President and censvres him for his part in the proceedings of the N.S.W. Stopwork Meeting."

pres NZ Pp 'S ¢. 8 @ trae cory of the Ree 9 Sor dudawit herein orf his khenour Me cust.ce UD BE va

Industrial law - whether rules of an organization are oppressive, unreasonable and unjust - whether rules provide for control of committees of an organization - branches of

varying sizes - voting at national conference weighted in favour of smaller branches

Conciliation and Arbitration Act, 1904 ~- s.140(1)(a);

OF SPR NST PET FOSSIL SATIN FUEL TEA Bo BO SS Tee ee Serene Pome wermnwmn eeemnrern re om

AND IN THE MATTER of an application under ss.140 and 141 of the said Act

KEVIN CHARLES SCOTT, ANTHONY GALVIN REDFORD, PETER KEVIN PRESDEF, JOHN RERNARD FLYNN and JOIN WILLIAM DRYSDALE

ARTHUR J. MOBBS, WILLIAM JAMES BURTON, KEVIN WALSII, IVAN R. BASSETT, CHRISTOPHER B. CARROLL, A.J. HALL, B.B. LINTHORNE, P.T. ARMSTRONG, M.T. O'CONNOR, J.E. HESLEWOOD, P.F. ISLIP, J.L. SLATTERY,

P.F. CONNOLLY, W.A. MALEY, T.J. FLANNAGAN, J.P. MILES, D.W. O'NEIL and THE COMMONWEALTIT BANK OFFICERS' ASSOCIATION

Reg. 115(1)(a) v IN THE FEDERAL COURT OF AUSTRALIA

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