STEPHEN WRIGHT AND ANOR. v K. McLEOD AND ORS.

Federal Court of Australia|1983-11-28|Before: Sheppard JJ, Sheppard J, Evatt J

y Industrial Law - Conciliation and Arbitration - Rules of Registered Organizations - Provision for .amendment by Federal Council - Postal ballot of Council members - Relevance of plebiscite provisions - Whether rule - amending provisions oppressive, unreasonable or unjust - Objects of the Conciliation and Arbitration Act - Balance between democratic control and viability of organization - Whether rules provide for control

of Federal Council by members of organization - Effect of orders

Conciliation and Arbitration Regulations, sub-reg. 115(1) (da) (v) ang (xiv).

CORAM: Bowen C.J., Smithers, Evatt, Northrop and Sheppard JJ.

NEW SOUTH WALES DISTRICT REGISTRY ) NSW No. 4 of 1983

AND: K. McLEOD, J. ANGUS, P.K. REYNOLDS, V. WINNEY, B. PENDERGAST, R. THOMAS, K. DAVERN, I. GRANT, J. EASTON, I. WEST, J. BOOKER, G. DUNCAN, J. DWYER, J. CONVERY, I. LARCOMBE, M. CLARK, J. WILSON, G. CHRISTIE, R. PURVIS, L. ASPINAL, J. TROUSDALE, I. THOMAS, K. HALLAM, B. DUNN, P. BRENT, P. THOMPSON and THE AUSTRALIAN INSURANCE EMPLOYEES UNION

JUDGES MAKING ORDER: Bowen C.J., Smithers, Evatt, Northrop

NEW SOUTH WALES DISTRICT REGISTRY NSW No. 4 of 1983

AND: XK. McLEOD, J. ANGUS, P.K. REYNOLDS, V. WINNEY, B. PENDERGAST, R. THOMAS, K. DAVERN, I.

WEST, J. BOOKER, G. DUNCAN, J. DWYER, J. CONVERY, I. LARCOMBE, ,

' M. CLARK, J. WILSON, G. CHRISTIE, R. PURVIS, L. ASPINAL, J. TROUSDALE, I. THOMAS, K. HALLAM, B. DUNN, P. BRENT, P. THOMPSON and THE AUSTRALIAN INSURANCE EMPLOYEES UNION

CORAM: Bowen C.J., Smithers, Evatt, Northrop and Sheppard J.J.

BOWEN C.J. This is the return of a rule to show cause granted by Evatt J. on 11 February 1983. The applicants are members of the Australian Insurance Employees Union (the "Union"), an organization registered under the Conciliation and Arbitration

Act 1904 (the "Act"). Stephen Wright is the Treasurer and Judith

Mary Walker 1s the Secretary of the New South Wales branch of the

Union and both are members of the Federal Council and the Federal Executive. The respondents are the Union itself and the

The applicants seek several orders pursuant to s.141 of the Act. These are specified in the rule nisi, as

"1. That the Respondents (other than the lastnamed Respondent) and each of them perform and 'observe 'the Rules of the Australian Insurance Employees' Union by treating the postal ballot of members of the Federal Council in relation to amendments to Rule 18(a),(b),(e) and Rule 26 of the certified Rules of the Union, scheduled for completion at 4.00pm on Friday 11 February, 1983 as null and void.

lastnamed Respondent) and each of them perform and observe the Rules of the Australian

Insurance Employees' Union by taking no further step towards obtaining the certificate of the Federal Industrial Registrar in respect of amendments to Rule 18(a),(b),(e) and Rule 26 made pursuant to the postal ballot of members of the Federal Council concerning amendments of the said Rules, scheduled for completion at 4pm on Friday llth February, 1983.

That Rule 57 of the Rules of the Australian Insurance Employees' Union contravenes Section 140(1)(a) of the Conciliation and Arbitration Act, 1904 as amended.

That Rule 57 of the Rules of the Australian Insurance Employees Union contravenes Section

140(1)(c) of the Conciliation and Arbitration Act, 1904, as amended.

That the Rules of the Australian Insurance Employees Union contravene Section 140(1)(a) of

the Conciliation and Arbitration Act, 1904 as amended in that the said Rules fail, and in particular Rules 19(b), 23(a) and (b) and 57 fail to make a provision required by the Act and by the Regulations made pursuant thereto.

Australian Insurance Employees' Union contravenes Section 140(1) (a) of the Conciliation and Arbitration Act, 1904 as amended.

Australian Insurance Employees' Union contravenes Section 140(1)(c) of the Conciliation and Arbitration Act, 1904, as amended.

Rule 19(b) of the Rules of the Australian Insurance Employees' Union contravenes Section 140(1)(a) of the Conciliation and Arbitration Act, 1904 as amended.

Rule 19(b) of the Rules of the Australian Insurance Employees' Union contravenes Section

140(1)(c) of the Conciliation and Arbitration Act, 1904 as amended."

(a) shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law;....

(c) shall not tmpose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust; "

Interim orders in the form of paragraphs 1 and 2 were made on 11 February 1983. Order 1 was vacated by consent on 18 February

between the parties to these proceedings were heard together by Evatt J. in February this year. The matters involve a challenge to the validity of the rules constituting the Federal Council and Executive, and the validity of certain actions proposed to be taken by the Executive. At the request of the parties, judgment has not been delivered in these matters and it was agreed that the present hearing would be conducted on the footing that both the Council and the Executive were validly constituted. Pursuant 'to s.118C, Evatt J. ordered that the present proceedings be heard by a Full Court. This Court has granted leave to appear as amicus curiae to Mr. Boulton,

solicitor for the Australian Council of Trade Unions (the "ACTU") representing 1ts members. He has supported the submissions of

of his submissions as being that the rules of the Union providing for the amendment of its rules were invalid either in themselves

or against the background of the rules as a_ whole. The rule amendment procedure of the Union is governed by an interaction of

The Federal Council shall, subject to control by the members as hereinafter mentioned, be the

supreme governing body of the Union and have the management and control of the affairs of the Union and, without limiting the generality of the foregoing, shall in particular have power:-

(b) subject to Rule 57 to make, add to, amend and rescind these Rules.

All decisions of the Federal Council shall be final and shall remain in force unless and until varied, amended or annulled at a subsequent meeting or ballot of the Federal Council or by a plebiscite of members of the Union.

- MATTERS REQUIRING DECISION BETWEEN FEDERAL COUNCIL MEETINGS

(a) On a motion passed by the Federal Executive that any matter requires a decision of the Federal Council between biennial meetings that matter shall he

Such matters may be forwarded by post, lettergram or telegram to each of the members of the Federal Council in such

(b) The members of Federal Council shall record their vote on the matter so submitted by post, lettergram or telegram addressed to the Federal Secretary and the decision of the majority shall be binding as if such decision were obtained by vote

at a regularly constituted meeting of the Federal Council.

recorded by means other than letter then such vote shall be confirmed by letter signed by the Federal Councillor.

(da) If amajority of the members of Federal Council notify the Federal Secretary that the matter so submitted to them 1s of such

importance that a meeting of the Federal Council should be convened to deal with it, then such Federal Council shall be forthwith convened by the Federal Secretary to meet at such time and place as the Federal Executive shall determine.

(e) If a special Federal Council meeting be held for the purposes cof the immediately preceding clause such other matters as the Federal Executive or Federal Council shall

Amendments may be made to these Rules or new Rules made or any Rule may be deleted or deleted and replaced by a new Rule by a resolution of Federal Council carried by a two-thirds majority of members voting. On a motion to alter any rule or to make a new Rule or to delete a Rule all Councillors present shall vote; provided that where an alteration to any Rule is rendered necessary by an amendment to the Conciliation and Arbitration Act, a requirement of the Industrial Registrar or an order of the Industrial Court and such alteration 1s submitted to a postal ballot of members of the Federal Council pursuant to Rule 23 of these Rules, the fact that not all members of the Federal Council cast a vote in such ballot shall not invalidate such ballot and any alteration so submitted shall be deemed to have been approved

by the Federal Council if approved by a two-thirds majority of members voting."

To determine the validity of the rule changing mechanism in this case, it will be necessary to consider the rules of the organization as a whole. The Union is divided into

six branches, one in each State. Under the present rule 18(a),

the Council consists of the President and Secretary of each

branch, additional delegates from each branch according to its

size, and the five officers of the Council ex officio. The

Executive consists of the same ex officio officers, plus the

President and one other delegate from each branch (rule 25).

As well as providing for a biennial meeting in October (rule 20(a)), the rules provide that a special meeting of the Council is to be called on the written request of three

branches or by an Executive resolution (rule 20(c)). Rule 20(d) requires that two months' notice of the biennial meeting and fourteen days' notice of a special meeting is to be given to each

Rule 22(a) provides that a branch may notify the Federal Secretary of any business it desires the Council to consider at the biennial meeting and rule 22(b) states that upon receipt of such notifications, a Council agenda is to be forwarded to each branch and = sub-branch. The members can therefore bring business before the Council meetings. If members cannot persuade their branch to make such a request, they can at a general meeting or branch plebiscite direct the branch committee to do so. A member can request the Federal Executive to list any matter for discussion by the Council (which power is granted to the Executive by rule 22(d)) but could not compel the

matter whether or not it appears on the agenda (rule 22(c)). A copy of the minutes of each Council and Executive meeting is to

be forwarded to each branch and sub-branch (rule 27{a)).

Rule 61 provides that a quorum of the Council shall

be one-half of those eligible to be present, provided that no less than three branches are represented. Rule 60 provides for voting by proxy at, inter alia, Council meetings. Finally, there

are provisions in rules 58(a) and 65 for a plebiscite of all

The facts that led to the present proceedings can be stated shortly. At the commencement of the hearing of the other two matters before Evatt J., a postal hallot of the Council was in progress relating to amendments of certain rules including rule 18. This is the postal ballot referred to in proposed orders 1 and 2. His Honour was informed on February 9 that the rule changes had been adopted. The applicants allege that one result of the purported amendment to rule 18 would be, by abolishing some ex officio positions on the Council, the removal of Judith Mary Walker from Council membership. The applicants claim that the rule changes are to be treated as null and void

because the rule amending procedures of the Union are contrary to

The general principle that this Court was asked to consider was contained in paragraph 13 of the Affidavit of Stephen Wright. This Affidavit was treated as the applicants'

"I submit that the rules of the organization, and in particular Rules 23(a) and (b) and 957, insofar as they permit the Federal Council of the organization to alter the Rules of the organization without recourse to the branches of the organization or the membership as a whole

contravene s.140(1) (a) or, alternatively s.140(1)(c) of the Act. In the alternative, I

submit that the Rules of the organization and in particular Rules 23(a) and (b) and 57 fail to make a provision required by the Act or the regulations made pursuant thereto."

The interaction of Rules 57 and 23 present some ambiguity. Rule 57 refers to the need for all members "present" to vote when voting on rule amendments (which term [I shall use for present purposes to include deletion, replacement or insertion of rules). However, it later speaks of such a vote taking place pursuant to Rule 23. Although the word "present" could be taken to imply the necessity of a meeting, with the use

of the Rule 23 procedure only available in the certain limited circumstances outlined in the proviso in Rule 57, both parties

agreed that the preferable interpretation was that any rule amendments could be made pursuant to the Rule 23 procedure. The aifference was therefore that for rule amendments within the Rule 57 proviso, not every member need vote - a resolution would pass

1f two-thirds of those returning their votes were in favour of

it. Otherwise, as all must vote, any non-vote would be treated as a no vote. I will proceed on the basis of this

interpretation, although it is not crucial for these proceedings.

In considering whether the rule amending procedures

are "oppressive, unreasonable or unjust" umder s.140(1)(c), it has to be borne in mind that it is the organization itself

which has the right to decide on the format and content of the rules that govern it. Deane J. in Municipal Officers Association

"It cannot however, be too strongly stressed that, subject to those constraints and

restrictions, the content of the rules of a registered organization is primarily a matter for the members, Watson v Australian Workers' Union (1967) 10 F.L.R. 347 at 361; Cassidy v Amalgamated Postal Workers' Union (1967) 11 F.L.R. 124 at 126/7; Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 20 A.L.R. 545 at 561; Re Airline Hostesses' Association (1980) 37 A.L.R. 110 at 148, per J.B. Sweeney J. This Court has no authority generally to supervise the contents of the rules or to require that the rules comply with what those constituting the Court might see as preferable, desirable or ideal. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this Court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the

rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust."

(See also the judgment of Evatt and Northrop J.J. at p.577).

As both judgments in Lancaster's Case proceed to explain, however, in following this approach the Court is directed by the section to have "regard to the objects of this

Act and the purposes of registration of organizations under the

Act." (See also Allen v Townsend (1977) 31 F.L.R. 431 at p.467;

Wiseman's case (1978) 35 F.L.R. 24 at p.34; Lovell v Federated

Liquor and Allied Industries Employees' Union of Australia (1978)

35 F.L.R. 72). The "chief objects" of the Act are listed in s.2

"(f£) to encourage the democratic control of organizations so registered and the full participation by members of such an erganization in the affairs of the organization."

The chief objects are not the only objects of the Act. Further, to clarify the Act's objects, including the chief objects, the Court needs to make close reference to the provisions of the

legislation, and to the method by which the legislature has

implemented its objects (see Lancaster's Case supra at p.579).

The word "democratic" is capable of a number of meanings ranging from total delegation of all power to elected representatives through to full participation by all members in

every decision. Importantly, object 2(f) itself speaks of "the

full participation by members of such an organization". In

Lovell's Case (supra), Smithers and Evatt JJ emphasised the

"Tt would seem that the democratic concept underlying the provisions of the Act 1s that of substantial participation by the whole of the membership, in the management of the organization. Democracy according to its ordinary current meaning may exist in various forms and in varying degrees. Government of the

members, by the members, and for the members in some pure and undiluted form may be an ideal."

"It is an object of Parliament to encourage full participation."

(See also Cook v Crawford (1982) 43 A.L.R. 83 at p.147).

encourage participatory democracy - it seeks to achieve more than members merely voting for representatives and then not participating in Union affairs. However, the Court's approach in deciding the validity of certain rules is not simply to measure

them against all the objects of the Act and determine whether

they comply with each. As Deane J stated in Lancaster's Case

"This does not, however, impose a requirement that every provision in the rules of an organization should either serve or be consistent with those objects or purposes. Nor does 1t alter the fact that the operative test is whether, having regard to those objects and purposes, the relevant condition, obligation or

restriction can properly be described as oppressive, unreasonable or unjust. It does, however, mean that in answering that question it is necessary to take into account relevant

objects of the Act and relevant purposes of the registration of organizations under the Act." Evatt and Northrop J.J. (at pp.578-9) adopted the words of Mason

J. and those of Murphy J in R_ v Hunt Ex Parte Sean Investments Pty. Limited (1979) 25 A.L.R. 497 in also deciding that, "having regard to" means taking into account, considering and giving due

registration of the organization, as well as to the objects of the Act, the Court must take notice of the fact that these include allowing the organization to function efficiently. As

Sweeney, Evatt and Northrop J.J. said in McLeish v Kane (1978) 36

"The Court in exercising its present jurisdiction is concerned with all the objects of the Act and clearly 1t is fundamental to these objects that there be not only democratically controlled organizations but that these organizations should be viable. In other words, we must take care to ensure not only that democratic control is encouraged but also that the organization remains viable. This means that questions of balance must arise."

See also Deane J in Lancaster's Case supra at p.590.

democratic process and organizational efficiency 1s a difficult

and recurring one which can only be decided according to the circumstances of each case. In fact, Counsel for the applicants conceded that these rules were not bad merely because they allowed the Council to alter the Union's rules. Iam of the opinion that this concession was well made. In many organizations, it would not be workable or efficient to submit every rule change to a general meeting or plebiscite. Some changes need to be made swiftly, some may be minor procedural matters. In some organizations plebiscites will of necessity be

slow and costly. Furthermore, the respondents expressed concern

that members' participation may in fact diminish if members have to vote on each rule change, and members may tend to avoid meetings if they know that there will be considerable time taken up discussing legal niceties of rule amendments. This reasoning is further strengthened by the Act itself. The definition of

"(Ce) the office of a member of any conference, council, committee or other body within the organization or branch which, under the rules of the organization or of the branch is empowered to make, alter or rescind rules...."

The Act therefore contemplates that the rules can empower, inter alia, a council to amend the rules. This is not qualified in any

way. Nor is reg.115(1)(d)(xiv) qualified. It may be said that the Act and regulations treat it as a matter for the organization

itself to decide whether it wishes to give its council this

However, Counsel for the applicants submitted that the present rules were contrary to the Act in allowing the whole

of the rule amending process to take place at Council level without any participation by members or branches being required. It was submitted that the rules allowed rule changes to be made

(a) without the organization having any notice of such

(b) by postal ballot thus preventing debate and exchange of

Full Court of this Court held, by majority, in Cook v Crawford

(supra) that a new rule amending procedure which stated that:

",..the Council may at any time make or amend any Rules....."

contravened s.140(1)(c). Applying the majority view, two

decisions of Sheppard J. in Squires v Stephenson (unreported,

delivered 14 February and 22 April 1983) emphasised the need for members' participation in rule changing procedures. The rules of the organization concerned allowed the Council to alter the rules by, inter alia, postal vote. His Honour held that this contravened $.140(1)(c) and further suggested that rule amendments ought not be made "otherwise than by reference to the membership of an organization." In the second judgment, his Honour held that a proposed rule allowing the Council to amend the rules but requiring such decisions to be ratified by a general meeting contravened the section as it "took out of the hands of the membership all power to amend the rules." His

Honour stated that such amendments should only be effected by plebiscite.

It must be remembered that each of the above decisions was based on its own individual circumstances. It is to be noted that in Cook v Crawford the rule amending procedure had previously required such proposals to be approved at a special branch meeting and then be considered by all other branches. In Squires v Stephenson, his Honour stated that it had been the Association's practice to make major rule alterations by

plebiscite only. Iam unable, however, to agree with the suggestion that the law requires, as a general rule, that it is

necessary for members to participate in every rule change for the

rule amending procedures to comply with the Act. Rule amending

procedures must be considered against the background of the rules

democratically elected body. The rules provide for elections pursuant to ss.133 and 133AA and, as stated, i1t 15 assumed that

the Council is validly constituted and satisfies the standard outlined in McLeish v Kane (supra). There are further safeguards expressed in the rules as outlined, especially with respect to quorum, proxies, notice .and requirement of a two-thirds majority to pass a rule amendment. Such provisions go a long way towards

indicating that the rule amending procedures of this organization, even though concentrating such important power in the hands of the Council alone, do not contravene s.140(1)(c). On the other hand, it is argued that, if the Union has decided that it is desirable to grant to the Council the power to alter the rules without the necessity of any recourse to members, this restriction on the members' rights will be contrary to

s.140(1)(c) unless the rules as a whole make sufficient provision

for review of any such Council decision. This differs from the requirement of control contained in Regulation 115(1)(d)(v), which deals with the general control of committees by members in

The rules require that notice of Council resolutions be distributed to branches and sub-branches and be made available to members. If a member is dissatisfied with a

decision he could, through his branch or the Executive, seek

review of the Council's decision by the Council itself (Rule 19). Any rule amendments must be certified by the Industrial Registrar and a member can seek redress in this Court if he believes that they are contrary to the Act, although the Court cannot of course consider the desirability of any amendments. Members always have

the ultimate right to vote out the Council at the next election.

However, the only direct control over a particular decision open to the members as a body is through the plebiscite provisions of the rules. Council decisions are expressly made subject to the results of plebiscites. This supremacy of a plebiscite is, however, of little practical benefit if it is too

A plebiscite of members of this Union can be held at the instigation of the Executive or three branches. Given the geographical situation of the branches it may at times be difficult for even a large body of members to be able to employ this latter procedure. A plebiscite is also to be held on receipt of a petition signed by 15% of members. On present

membership figures, this would require 3446 signatures.

members of the Union are concentrated in particular areas and that it may be easier here than in some other Unions to collect

such signatures. It is also undeniable that referenda are expensive, cumbersome and time consuming, and that to make them

too easily available would not be in the best interests of the organization. Keely J. in Cook v Crawford supra at p.120 refers

However, a plebiscite in circumstances such as the present remains the major area of ultimate direct review of rule amendments. It is the means by which participation is possible for members after important rule changes have occcurred. This is especially important if the Union has decided that it is desirable that the Council has the power to implement rule changes without giving notice to the members. A requirement that a written requisition from 15% of members must be received before a plebiscite is held may be difficult to comply with in practice. It is to be noted that the requirement to hold a branch plebiscite 1s only 10% of members. Even this percentage may be seen as too high in certain circumstances. In Squires v Stephenson, for example, Sheppard J. held that a requirement of

10% to call a plebiscite contravened s.140(1)(c) ain the

The potential importance of amendments to rules of an organization must be remembered. The rights of an individual member may be seriously affected by amendments to the rules of the organization to which he belongs. In considering whether rule amending procedures are mandatory or directory, Sweeney,

Evatt and Northrop dg.d. ain Australian Transport Officers'

Federation v State Public Services Federation (1981) 50 F.L.R. 438 at p.443 said:

more important in the affairs of an organization than its own legislative power.

In Cook v Crawford supra (at p.97) Smithers J. expressed the view

"Changes in rules go to the heart of the fundamental rights and duties of members..."

It would seem to be desirable that the present rules should have a provision making 1t easier for members to call a plebiscite which concerns a decision of the Council to amend the rules. However, it must be emphasised that rules with a high percentage required to call a plebiscite, or even those lacking a plebiscite provision at all, are not simply for that reason contrary to s.140(1)(c). It "is useful to compare the application of

reg.115(1)(d)(v) to plebiscite provisions. Evatt and Northrop J.J. in Boland v Munro (1980) 37 A.L.R. 263 at 0.277 said:

"The absence of the power to call for a referendum on the decisions of a committee will not necessarily mean that the rules fail to provide for the control of committees of the organization by the members. The presence of the power to call for a referendum on the decisions of a committee may, having regard to the other rules of the organization, ensure that the rules comply with Regulation 115(1)(d)(v), which rules otherwise would not comply with that regulation. Each case must depend upon its own facts and the particular rules of the

Their Honours were speaking of "control" but the same idea is

relevant to the present case. The mere fact that a Council is given power to amend rules without the existence in the rules of a liberal plebiscite provision will not automatically mean that the rules contravene s.140(1)(c). Each situation must be considered individually with particular regard to the mode of election of the Council, the rules relating to Council meetings,

the position of branches in relation to the Council, the extent

of the power of the Council to amend rules, any requirements for

members' participation 1n the process and any other means of

The question for this Court is not whether it would be desirable to have in the rules a provision for a plebiscite which, at all events, in respect of rule amendments might be more easily invoked than the provision in rule 58. The question raised by paragraphs 3 to 9 inclusive in the orders sought is whether rules 19(b), 23(a) and (b) and 57 which lay down the rule

amending procedure, are contrary to s.140(1)(a) or (c).

In my opinion, these particular rules are not contrary to and do not fail to make a provision required by a provision of the Act or regulations and are not otherwise contrary to law, unless it be held they contravene s.140(1)(c). Notwithstanding that the power to amend the rules 1s concentrated in the hands of the Council, reg.115(1)(d)(v) is not, in my view, contravened. The whole of the organization's rules, the method of electing committees, the committee members' term of office and the power of a general meeting must all be considered (see Boland v Munro, supra). Taking these matters into consideration, it is my conclusion that lack of control is not demonstrated in the present circumstances. Thus the rules do not contravene

s.140(1)(a); s.140(1)(c) takes effect in its own right.

The question, therefore, comes down to this: Do these rules impose conditions, obligations or restrictions which,

having regard to the objects of the Act and the purposes of the registration of organizations under the Act, are oppressive, unreasonable or unjust? It does not appear to me they impose conditions, obligations or restrictions which are oppressive or unjust. Do they impose conditions, obligations or restrictions which are unreasonable? In determining this question, reqard is to be had to the objects of the Act, which as we have seen, include as a chief object to encourage the democratic control of

the Union and the full participation of members in the affairs of

the Union (s.2(f)) and regard 1s to be had also to the purposes of the registration of organizations under the Act. Could a reasonable Union member, having regard to those considerations, wish to have such provisions in the rules of his Union? There is full representative democracy under the rules as a whole; what is somewhat deficient is provision for the participation of members. Is the deficiency such as to require a decision that these particular provisions in the rules impose restrictions which are

having regard to the rules as a whole, I have come to the conclusion that rules 19(b), 23(a) and (b) and 57 do not

The interim order in paragraph 2 made on 11 February 1983 should be vacated and the rule nisi should he

| I certify that this oud the Pent two C33) | proceeding pares are a wm. cory of the | Reasons for Ive 2 vse. ul Lis Sonour i she Chief cucg., ber Pig Lou ent i

P.K. REYNOLDS, V. WINNEY, PENDERGAST, R. THOMAS, DAVERN, I. GRANT,

TROUSDALE, I. THOMAS, K. HALLAM, DUNN, P. BRENT, P. THOMPSON

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

Conciliation & Arbitration Act Between: STEPHEN WRIGHT and JUDITH MARY WALKER

And: K. McLEOD, J. ANGUS, P.K. REYNOLDS, V. WINNEY, B. PENDERGAST, R. THOMAS, K. DAVERN, I. GRANT, J. EASTON, 1. WEST, J. BOOKER, G. DUNCAN, J. DWYER, J. CONVERY, 1. LARCOMBE, M. CUARK, J. WILSON, G. CHRISTIE, R. PURVIS, L. ASPINAL, a. TROUSDALE, I. THOMAS, K. HALLAM, B. DUNN, P. BRENT, P. THOMPSON and THE AUSTRALIAN INSURANCE EMPLOYEES UNION

SMITHERS J.: By an order nisi dated 11 February 1983 as amended on 26 July 1983 the applicants seeks an order

pursuant to s.141 of the Conciliation & Arbitration Act 1904 (the Act) requiring the respondents to perform and observe the rules of the Australian Insurance Employees' Union (the organization) by treating a postal ballot of members of the Federal Council of the organization with respect to a proposed amendment of the rules of the organization as null and void, on the ground that the rules under which the ballot was instituted contravene one or other of the provisions of s.140(1)(c) of the Act, or alternatively, on the ground that, contrary to the provisions of s.140(1)(a) of the Act, the rules of the organization fail to make a provision required

The immediate aim of the applicants is to prevent the taking of a postal ballot of members of the Federal Council of the organization pursuant to r.23(a) of the rules of the organization (the rules) in relation to proposed amendments to r.18(a), (b) and (e) and r.26. That ballot if carried by the required majority would alter the composition of the Federal Council. It would abolish the membership of Federal Council of the President and Branch Secretary of each

branch, which under the existing rules is automatic. The

proposed amendments would also change the composition of the

The matter comes before this Full Court on a reference by Evatt J. pursuant to s.118¢ of the the Act for a determination by this Court of an issue said to raise a matter of principle concerning provisions of rules of organizations of employees registered under the Act which

The 1ssue is posed in paragraph 13 of the affidavit

herein of the claimant Stephen Wright where it is said:

"I submit that the rules of the organization and in particular Rules 23(a) and (b) and 57, insofar as they permit the Federal Council of the Organization to alter the Rules of the Organization without recourse to the branches of the Organization or the membership as a whole contravene section 140(1)(a) or alternatively section 140(1)(c) of the Act. In the alternative I submit that the Rules of the Organization and in particular Rules 23(a) and (b) and 57 fail to make a provision required by the Act or the regulations made pursuant thereto."

This submission is based on the decision of the majority of the Court in Cook v. Crawford (1982) 43 ALR 83, and the

observations of Sheppard J. in Squires v. Stephenson & Ors

No. V6 of 1981 of 14 February 1983 (unreported). According former

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Cases Cited (5)

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