Willingale, Bernard Jack v Australian Federated Union of Locomotive Enginemen [1982] FCA 153

IN THE MATTER of an application under s.140 of the Conciliation and

AND: AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE ENGINEMEN

This is an application by Bernard Jack Willingale a member of the Australian Federated Union of Locomotive Enginemen (the organization) seeking orders that rr.7(2), 9{1), and 16 of the

certified rules of the organization contravene s.140(1)(a) and

s.140(1)(c) of the Conciliation and Arbitration Act 1904 {as

amended) (the Act). Since 1965 Mr Willingale has been both the Secretary of the New South Wales Division of the organization and a

The organization is a federation consisting of Divisions. Rule 5(1) provides that the organization may divide itself into Divisions and Branches for the purpose of carrying out the objects

of the organization and also for administering its and its members

affairs and that Divisions be constituted for all Government Railway

systems. In 1975, pursuant to agreements made between the

Commonwealth of Australia and the States of South Australia and Tasmania, the Commonwealth through the Australian National Railways Commission took over certain railway systems in South Australia and

Tasmania. Any relevant effect of such take-over is referred to later

The supreme governing body of the organization is the Australian Council which meets biennially. The Council consists of elected members from each Division together with the General President and the General Secretary who shall be ex-officio members(r.7({1)). The constitution of the Council is provided for in r.7(2). Between meetings of the Council the day to day affairs of the organization federally are administered by a Committee of

Management the constitution of which is provided for in r.9(1).

"Divisions shall elect triennially, or biennially, in manner prescribed by these rules an Australian

Councillor or Councillors from financial members to the Council on the following basis:

For the first 1,500 members or part thereof - one Australian Councillor. Over 1,500 and up to and including 3,000 members - two Australian

Councillors. Over 3,000 members - three Australian Councillors. ....."

Provision is made for proxy Councillors with full voting

rights. Further, provision 1s made that each Division will have its

full voting power through any one Councillor present at any meeting

"There shall be a Committee of Management which shall consist of the General President, General

Secretary, two General Vice-Presidents, together with one Committeeman from each Division not represented by the Vice-Presidents already elected, all of whom shall be nominated and

elected in manner prescribed by these Rules by the Australian Council at its biennial meeting and in

the event of an extraordinary vacancy, by the Australian Council. In the event of the inability of any member of the Committee of Management to attend a meeting of the Committee of Management, the Divisional Council of the Division concerned may appoint a proxy to act in his stead.

The Committee of Management shall have the power to deal with all matters of urgency and may

exercise all the powers necessary to deal with the day to day affairs of the Union.

Members of the Committee of Management (excluding the General President) shall have one vote only."

"The members of the Union shall have the followin control over the Council and Committee o

Management and Officers of the Union. If the members, by resolutions carried by Divisional Councils and/or Conferences of any four Divisions, at a Special Meeting or Special Meetings of such Divisions duly convened for the purpose, determine that it 1s desirable that any act of Management should be set aside or rescinded, or that any member of the Council or Committee of Management

or any Officer thereof should be removed, a ballet of alli members shall be taken in manner prescribed

by these Rules within 3 months of receipt of the request from any four Divisions, by the General

President and/or General Secretary upon the question raised by the resolutions, and the

decision of the majority of members voting shail be binding and conclusive."

Special meetings of the Council or the Committee of

Management shall be called by the General President in accordance

with provisions of r.7(5) or r.10(3)(b) which latter paragraph

(b) Upon request of a majority of members of the Australian Council or Committee of Management and when the said Council or Committee is not in

session, arrange for the calling of a_ special meeting of the Council or Committee of Management."

"(1) The rules of an organization- - (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 impose 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; "

The attack upon the particular rules set out above is

based upon the principles laid down by the Court in McLeish -v-

Kane & Ors (1978) 36 F.L.R. 80 and followed and/or developed in

Telecommunications Union (1978) 36 F.L.R. 68, Scott -v- Rolfe

(1979) 36 F.L.R. 249, McLeish -v- Faure & Ors. (1979) 40 F.L.R.

462, Boland -v- Munro (1979) J.B. Sweeney J., Judgment 3 April

1979 (not yet reported); Full Court Judgment (1980) 48 F.L.R. 66, Sherriff -v- Townsend (1980) 48 F.L.R. 20, Cook & Ors. - - v-

Crawford & Ors., Evatt J., Judgment 4 March 1981 (not yet

reported); Full Court Judgment 7 July 1982 (not yet reported)).

Evatt J. in Cook -v- Crawford (supra.) after referring

to McLeish -v- Kane & Ors. (supra.) and other cases at p.35

"It 18s clear from those decisions that the answer to the question whether a rule or the rules of an organization making provision for the number of delegates to its Federal or national controlling body contravene s.140(1) of the Act 1s dependent not simply upon the number of delegates each branch of the organization is entitled to have as representatives on such body but is fundamentally a question whether the voting strength of such delegates at meetings of such a body fall within the spectrum referred to in McLeish -v- Kane. As was pointed out in that case, and repeated in the more recent cases referred to, the Court in determining whether a rule or the rules of an organization contravene the Act in this regard has to consider whether there is a disparity between, on the one hand, the number of members attached to a particular branch expressed as a percentage of the total membership of the organization and, on the other, the voting strength of that branch expressed as a percentage of the total voting strength of members of the body entitled to vote. If such a disparity exists which is too great or too uneven then it may be said that the voting strength of particular branches may be outside the spectrum referred to in those cases and so render a particular rule or the rules of that organization invalid as being contrary to the provision of that section." (that is, s.140).

As was stated in McLeish -v- Faure (supra.) @ 476, "the

Court in its reasons for judgment in McLeish -v- Kane dealt in

some detail with the vexed questions concerning the spectrum over which rules dealing with the weighting of the voting power at meetings of branch delegates to or members of federal bodies of organizations might validly range (and) the conditions under which a plebiscite of members might be sought on any matter together with rules generally providing for checks and balances. It is unnecessary to repeat those observations." See

also Cook -v- Crawford (supra.) - Full Court - Smithers J. @

pp.45-52 whose reasons for judgment in this respect were agreed

provide that the current voting entitlement of the various

Divisions of the organization on the Australian Council is:

In the event of a tied vote the General President has a

The current voting entitlement of each of the seven Divisions on the Australian Committee of Management 1s one

together with the vote of the General Secretary making a total

vote of 8. Again the General President has a casting vote.

The rules provide that both the General President and

the General Secretary of the organization be elected for a

period of 4 years by the whole of the financial membership of

The following table shows the various Divisions of the

organization, the current membership of each Division, the

ree itl at Gel et a eT Ao ee at, be BRE et ee ee Tan See SPT an ee Re Rent oor ray A = ~

} membership of each Division as a percentage of the

total membership for which capitation fees have been paid, the representation of each Division on the Australian Council and

the voting strength of such representation as a percentage of the

Division Membership National Number of Proportion Votinc $ Percentage Delegates of Council on Aust _ Council Vict. 2,343 19.29 2 2/12 = 16.67% Qld 2,618 21.56 2 2/12 = 16.67% NSW 4,737 39.01 3 3/12 = 25.00% W.A. 973 8.01 1 1/12 = 8.33 Commonwealth Railways 452 3.72 1 1/12 = % S.A. "g15 6.71 1 1/12 = % Tas. 302 1.67 1 1/12 = -33 General Secretary 1 1/12 = 8.33% 12,141 99.97 12 100.003 General President (casting vote only)

The above voting percentages on the Australian Council

are to be compared with those on the Australian Committee of

An affidavit sworn by Mr Willingale on 4 August 1981 was

filed in support of his application. Such affidavit discloses

that at a special meeting of the Australian Council held on 16

• 18 March 1981 Mr Willingale unsuccessfully sought to raise

the question of Divisional representation on the Australian

Council. Thereafter, he was present at a New South Wales

Divisional Committee of Management Meeting on 18 March 1981

"Having considered the outcome of the attempts made by the NSW delegates to the

Australian Council meeting held in Melbourne 16th - 18th March, 1981, this

Divisional Committee of Management directs the Divisional Officers to take the

necessary action to ensure that the NSW membership are adequately represented on the Australian Council and the Australian Committee of Management in terms of

proportionate representation on those bodies according to membership.

Furthermore, that the membership applying to the rail systems are properly

represented, that the necessary advice be obtained and legal steps be taken if

Pursuant to this resolution Mr Willingale sought to have a special meeting of the Australian Council convened to

consider Divisional representation thereon. To this end Mr

Willingale circularised all Australian Councillors.

Subsequently, in accordance with the rules the National

President informed Mr Willingale that a vote of Councillors as

to whether a Special Council Meeting should be held resulted in a vote of 6 for with 6 against and that he, the National President, was of the opinion that the rules did not in those

circumstances make provision for a casting vote by him.

The evidence is that the Australian Councillors from

Queensland, Western Australia and New South Wales, a total of 6, supported the proposal. Those 6 Councillors represented

approximately 8,400 of the total membership of 12,200, that is

Further, the New South Wales Divisional Conference held 5 - 8 May 1981 carried the following resolution: "That the New South Wales proposals for more proportionate representation on the Union's Australian Council and Australian Committee of Management is supported and endorsed by this 1981 Divisional

Regarding the take~over of the railway systems of South Australia and Tasmania by the Australian National Railways Commission (the Commission) the evidence was that Agreements to this end were made between the Commonwealth and the two respective States in 1975. The take-overs were completed by 1978. As a result of such take-overs the Commission, for administrative purposes, divides its operations into 3 separate regions which coincide with the 3 former railway systems

namely, the Northern Region which is the old Commonwealth

Railways; the Central Region which is the area formerly under the control of the South Australian Railways and the Tasmanian Region covering the old Tasmanian Railways. Despite such regions there is, so far as membership of the organization is

concerned, effectively only the one Government system, namely

the Commonwealth Railways, within the 3 regions. Further, all

such members in South Australia and Tasmania are employed by the one employer, the Commission. The organization still retains 3 Divisions designated the Commonwealth Railways Division, the Tasmanian Division and the South Australian Division, the members of each Division being those persons

employed within the Northern Region, the Tasmanian Region and

the South Australian Region respectively. The total membership of the organization attached to those 3 Divisions is presently less than 1500 so that if there was only the one Division within the organization for members employed by the Commission then, under the formula presently provided for in r.7(2) of the

rules, that Division would have 1 vote on the Australian

Council. If such were the case, the total vote on the Council would be 10 instead of 12 and the total vote on the Australian Committee of Management would be reduced from 8 to 6. Such reductions in the total number of votes on those two bodies would of course affect the percentages as set out above but in view of the Court's determination in this matter it is

unnecessary to detail the effect of such reductions.

Having given the matter deep and lengthy consideration,

the Court has reached a determination that in all the circumstances the overall effect of rr.7(2), 9(1) and 16 is such that the obvious imbalance in the voting strength of

delegates from Divisions of the organization on the Australian

Council and Committee of Management when considered with the provisions of the plebiscite rule, r.16, and other rules including those making provision for the calling of special meetings of the governing bodies of the organization is outside "the spectrum" of the permitted imbalance referred to in

McLeish -v - - Kane(supra.). In other words, such imbalance and

the restrictions placed upon the bringing into operation the checks and balances provided for in r.16 are such that the rules of this organization, in my view, do impose upon members conditions which, having regard to the objects of the Act and the purposes of registration of the organization, are oppressive, unreasonable and unjust and are contrary to the provisions of s.140(1)(c) and consequently s.140(1)(a) of the

Act. Such determination is essentially a determination of

fact. Despite the able and detailed analysis of the rules and the voting strength of representatives on the two governing bodies by Mr Ryan Q.C., who appeared for the organization, the Court has finally come to the conclusion that the checks and balances provided for by the rules of the organization are such that insufficient democratic control by members of the

governing bodies presently constituted is provided by the

It 1s unnecessary, in my view, to set out the various possible combinations of voting by Divisional representatives which could possibly occur on both bodies. Examples of such combinations were propounded by both Mr Ryan and Mr Toomey

Q.C.,who appeared for the applicant and the Court itself is well aware of further combinations. Further, the real and practical difficulties preventing members from bringing about a

plebiscite pursuant to r.16 and the calling of special meetings

The applicant, in his attack on r.7(2), also relied upon

the limitation of the maximum number of delegates that a

Division might have on the Australian Council. He claimed that limiting the maximum number to 3 in respect of any membership

in excess of 3,000 was in the circumstances of the membership of the organization harsh and oppressive in view of the current membership of the New South Wales Division compared with Divisions with smaller memberships. In view of the order that the Court proposes to make the Court refrains from

Having expressed the opinion concerning the rules of the

organization generally and in particular that part of r.7(2)

dealing with the constitution of the Australian Council, r.9(1)

and r.16, the Court is of the view that it should order that

the matter be adjourned pursuant to s.140(6) of the Act for a

period to be determined after hearing submissions from the

parties in order that the organization be given the opportunity to alter its rules. (cf. the order of the Court in McLeish -v- Kane & Ors.(supra.) @ p.94). Here there is no suggestion that

the organization or any group within the organization has acted

other than bona fide. Liberty to either party to apply on