William Mark Wheeler v John Forster & B. Oliver [1980] FCA 125

WILLIAM MARK WHEELER v. JOHN FORSTER AND B. OLIVER Coram: Evatt J.

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No.1ll of 1979 ) )

In the matter of the Conciliation and Arbitration Act 1904, s.141

THE COURT FINDS THAT:(1)That part of r.25 of the rules of the Australasian Society of Engineers which reads "and abide

by the regulations governing that fund" contravenes s.140(1)(a)

(2) The Court further finds that the rules of the Australasian Society of Engineers contravene s.140(1)(a) of the Act in that such rules fail to make provision as required by s.133 A(2)(e)

for the operation and control of the fund provided for in r.25.

(3) The Court, pursuant to s.141(8A), makes an order in

(4) The Court in the exercise of its discretion does not make an order in relation to the finding set out in (2) above but adjourns the matter pursuant to s.140(6) and/or generally to 10 December 1980.

(6) Liberty is granted to any party including the Australiasian Society of Engineers to apply on forty-eight hours notice to

the Court and to the other parties including the said society.

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 11 of 1979 ) )

In the matter of the Conciliation and Arbitration Act 1904, s.141

William Mark Wheeler,a member of the Australasian Society of Engineers (the organization), an organization registered under the Conciliation and Arbitration Act 1904 (the Act) seeks orders pursuant to s.141 of the Act giving directions to the respondents to perform and observe the

and Mr Trew of Counsel appeared for the respondents.

"There shall be a retiring fund for union officials;

all full-time officials shall contribute to the said fund, and abide by the regulations governing that fund".

The rule goes on to deal with the age at which paid officials

The first-named respondent John Forster is Secretary of the Tasmanian Branch of the organization whilst the second-named respondent B. Oliver is the Assistant Secretary of that branch. Both respondents are and have been since taking their respective offices full-time

Pursuant to directions hearings, points of claim and points of defence were filed. Such points of defence challenged the validity of the part of r.25 set out above and 1t was indicated by Mr Trew that the respondents, if the Court found such invalidity, would be seeking orders

Sub-section (8A) of s.141 which was inserted into the Act when that section was amended by Act No.108

of 1977 (s.18(1)(c)) commencing 1 December 1978, reads:

"(8A) Where the Court, in considering an application under this section, finds that

the whole or a part of a rule of the organization concerned contravenes sub- section (1) of section 140 or that the rules of the organization concerned contravene that sub-section 1n a particular respect, the Court may make an order setting out that finding and section 140 applies in relation to that order as 1f -

(b) the finding set out in that order was a declaration of the Court. "

As a challenge was to be made to its rules, leave was granted to the organization to intervene in the

proceedings. Mr Kenzie also appeared for the organization.

The organization consists of various branches. The supreme control of the organization is vested in the members and subject thereto control is exercised by a Federal Council (c.9A) which consists of the Federal Secretary, Branch Secretaries and delegates from each branch of the organization (r.9). Federal Council has the power to repeal, alter or add to the rules (x.9A(b)) and to compose regulations for the administration of a retiring allowance for paid official(sic) of the organization

Membership to the organization is effected through the branches. Entrance fees and contributions as determined from time to time by Federal Council are paid by members to their respective branches. Branches pay an allocation of funds to the credit of the Federal Council General Fund each quarter as is determined by Federal Council. Federal Council has power to invest moneys belonging to the General Fund and Retiring Allowance Fund in such securities as Council may from time to time decide (r.21). Such rule further provides that Federal Council shall have power to vote moneys for extraordinary or special purposes not specified in the rules

belonging to the organization or to its branches have been paid into the fund set up under r.25 on the basis that the amount thereof is 1n proportion to a particular amount paiadfrom the wages of each full-time official. Further the Council, pursuant to its power under the rules to compose regulations for the administration of a retiring allowance for paid officials,has drawn up certain regulations. Such regulations have not been certified by the Industrial Registrar and do

not purport to be certified rules within the meaning of

s.139 of the Act. It 1s clear in my view that the Court's power under s.141 of the Act to order performance and observance of the rules of an organization by a member of

that organization who is under an obligation so to do can

only be made in respect of the certified rules of the

Accordingly, the Court does not have power to make an order under s.141 directing the respondents to make contributions to the fund set up by r.25 at the rates

Once the question of the validity of r.25 was raised 1t was apparent that it would be convenient to deal with this issue as a preliminary point. This course was

validity of r.25 was that the rule was contrary to s.140(1){(a)

in that the rule failed to provide conditions required by

s.133A, Reg.115(1)(d) (ii), (ix) and (x1); Reg.115(1)(g) and contra- vened s.140(1)(c)and (da). In addition it was further argued

that the rules of the organization fazrled to provide such

Section 133A which was inserted by s.5(1) of Act No.89 of 1974, provides so far as organizations are concerned that the rules of an organization which was divided into branches shall make provision for a federal fund which shall be managed and controlled in accordance with rules relating to the organization as a whole and that each branch shall have a branch fund which shall also be managed and controlled in accordance with the rules of the particular branch. Further, such rules shall make provision in relation to those respective rules in accordance with sub-ss.(2) and (3) of the section. Sub-section (2) provides that the federal fund shall consist of (inter alza) fees paid in accordance with the rules for the payment of capitation fees by branches to the organization ((2(b)) and any superannuation or long service leave or other fund operated or controlled in accordance with rules relating

to the organization as a whole for the benefit of its officers

It 1s clear in my view that r.25 read in conjunction with r.21 1s dealing with a superannuation or other fund for the benefit of full-time officials of

the organization within the meaning of s.133A(2)(e).

Accordingly the rules of the organization should have, since 29 October 1975 being one year after the date of commencement of Act No.89 of 1974 or such longer period as the Industrial Registrar may have determined (s.5(2) of that Act), included rules making provision for the operation

I am of the opinion that the words "and abide by the regulations governing that fund" where appearing at the end of the opening paragraph of r.25 are not a reference to such rules and are contrary to s.140(1)(a)

Those particular words are in my view severable and should be struck out. The opening paragraph of r.25 would then read "There shall be a retiring fund for union officials; all full-time officials shall contribute to the said fund". The paragraph in that form would not, in my view, be contrary to the Act or the Regulations although the rules

of the organization do fail to provide for the conditions

Once the particular words referred to are severed from r.25 and the rules as a whole fail to make provisions for the operating and control of the particular fund then the Court, in my view, should not make an order directed to a particular full-time officer of the organization to observe

r.25 and contribute to the fund. As there are no rules

dealing with hoy the fund is to be operated and controlled the Court is unable to make any directions as to the amount a particular full-time officer should contribute and the

time and place for the payment of such contributions.

As it has been shown that r.25 is in part contrary to s.140(1)(a) and that the rules fail to make provisions required by s.133 A so that orders sought by the claimant should not be made it is unnecessary to determine whether the particular rule or the rules as a whole are

Further I am of the view that ex facie the opening paragraph of r.25 after the offending words are struck out is not contrary to r.140(1)(c). I am of the opinion that where an organization decides to set up a superannuation or retiring fund for full-time officers of the organization it is reasonable that provision be made that all full-time officials contribute to such a fund. If acceptable evidence was led to show that in a particular case under certain circumstances it would be unreasonable or unjust for a particular full-time officer to make such contribution then the Court might determine that such a

Accordingly the orders as asked in the order nisi herein are refused. This then leaves for determination

the respondents! application under s.141(8A). In accordance

with the view already expressed a declaration is made that the part of r.25 of the rules of the organization which reads "and abide by the regulations governing that fund" contravenes s.140(1)(a). Further in the exercise of the discretion given by s.141(8A) I adjourn the matter pursuant to s.140(6) and/or generally for a period of some three months for the purpose of giving the organization an opportunity to alter its rules to include such rules as the organization may be advised

to provide for the operation and control of the fund provided for in r.25. Liberty to apply is granted to any party on forty-eighk hours notice to the Court and to the other