FEDERAL COURT OF AUSTRALIA

 

Kingham v Sutton (No 3) [2001] FCA 1117

INDUSTRIAL LAW – application for orders that respondents perform and observe rules of union – whether right to require Divisional Conference to review decision of Divisional Executive to amend rules of union – whether implied restraint on power of Divisional Executive and Divisional Secretary to give effect to decision of Divisional Executive pending outcome of review by Divisional Conference – whether rules of union contravene s 196 of the Workplace Relations Act 1996 (Cth) – whether valid request for referendum under Divisional Rules – whether valid request by majority of Divisional Branch members – whether valid request by way of petition – interpretation of rules of union – whether implied limitation on exercise of powers under rules which would prevent implementation of referendum – whether question proposed in referendum requires alteration to National Rules – whether petition signed by 10 per cent of financial members of union – effect of s 48 of the Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth):  s 48

Workplace Relations Act 1996 (Cth):  ss 195(b), 196(a) & (c), 197(1)

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1  referred to

Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129  applied

Griffin Coal Mining Company Pty Ltd v Construction Forestry Mining and Energy Union [2001] FCA 281  distinguished

Boland v Munro (1980) 48 FLR 66  applied

National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309  applied

 

MARTIN KINGHAM & ORS v JOHN SUTTON & ORS (No 3)

V 214 of 2001

 

GOLDBERG J

15 AUGUST 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V 214 of 2001
BETWEEN:	MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE Applicants
AND:	JOHN SUTTON, VIC FITZGERALD, ALBERT LITTLER, BILL OLIVER, LINDSAY FRASER, ALEX BUKARICA, PETER McCLELLAND, TREVOR ZELTNER, PAUL WATERS, ANDREW FERGUSON, WALLY TROHEAR, GARRY HOWCROFT, TONY BENSON, BEN CARSLAKE, JOE McDONALD, GEORGE WASON and TREVOR MELKSHAM First Respondents   MARGARET BUCHANAN, INDUSTRIAL REGISTRAR Second Respondent

 

JUDGE:	GOLDBERG J
DATE:	15 AUGUST 2001
PLACE:	MELBOURNE

 

REASONS FOR JUDGMENT

1                     On 22 March 2001, the applicants applied pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”) for a rule calling upon the first respondents to show cause why certain orders should not be made requiring the first respondents to perform and observe the Rules of the Construction and General Division of the Construction, Forestry, Mining and Energy Union (“the Union”).  At the same time, the applicants applied for urgent interlocutory relief until the hearing and determination of the proceeding against the first respondents and the second respondent, an Industrial Registrar of the Australian Industrial Relations Commission (“the Commission”).  On 23 March 2001, I granted a rule to show cause why the orders sought should not be made (par 17 below).  Because of the urgency with which the application for interlocutory relief came on for hearing, I was only disposed to grant interlocutory relief for a short time to enable the first respondents to present a more detailed and considered submission.  I granted limited interlocutory relief until 4.30pm on 29 March 2001, or further order, restraining the first respondents from taking any, or any further, steps to have amendments to the Rules of the Construction and General Division of the Union made by the Divisional Executive of that Division certified by the Industrial Registrar, or otherwise giving any effect to those amendments.  I ordered that the Industrial Registrar be restrained until 4.30pm on 29 March 2001, or further order, from taking any steps to certify those rule amendments. 

2                     On 29 March 2001, I extended those interlocutory orders until further order.  The background and circumstances leading to the granting of the rule to show cause and to the grant of the limited interlocutory relief are set out in my earlier reasons for judgment:  Kingham v Sutton [2001] FCA 328.  On 12 April 2001 after further affidavits and submissions were filed by the applicants and the respondents and a further hearing of the issues raised by the proceeding, I continued the injunctive relief granted on 23 March until the hearing and determination of the proceeding or further order:  Kingham v Sutton (No 2) [2001] FCA 400.

3                     Further affidavits have been filed by the applicants and the first respondents relating to the issues which have arisen, and those issues and the relevant evidence were further expanded at the hearing of the proceeding.  I set out the relevant background and facts leading to the proceeding below.  Not all the respondents appeared in the proceeding.  Counsel announced an appearance for the first, second, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth and seventeenth respondents.

4                     The first applicant (“Mr Kingham”) is the Secretary of the Construction and General Division, Victorian Building Unions Divisional Branch, of the Construction and General Division of the Union.  He and the other applicants are members of the Divisional Executive of the Construction and General Division of the Union.  The first respondents are also members of the Divisional Executive of the Construction and General Division of the Union (“the Divisional Executive”).  Under the Rules of the Construction and General Division of the Union (“the Divisional Rules”) the election of Divisional office bearers is held every four years at a biennial Divisional Conference.  An election is due to be conducted at the biennial Divisional Conference to be held later this year.  The election must be held after September as the Divisional Rules provide that nominations close fourteen days after the last Friday in September:  Divisional Rule 9.5. 

5                     On 7 March 2001, the Divisional Secretary of the Construction and General Division, Mr John Sutton (the first named first respondent), sent to members of the Divisional Executive ballot papers for a postal ballot for a vote on a proposal to alter the Divisional Rules so as to allow elections at the Divisional Conference to be held earlier in the year at a time fixed by the Divisional Executive.  The ballot was to remain open until the close of business on 14 March.  Mr Kingham wrote to Mr Sutton on 9 March objecting to the postal ballot on the basis that it was not allowed under Divisional Rule 26.  He said Divisional Rule 26 was subject to a limitation that postal ballots should only be used for urgent matters.  Mr Kingham said that by reason of the matters he raised about the proper construction of Divisional Rule 26, any resolution passed by the ballot would be null and void and of no effect.

6                     On 9 March, Mr Sutton wrote to the Commission applying to have the rule amendments, which were the subject of the ballot, certified pursuant to s 205 of the Act.  Apparently, by this date, a majority of members of the Divisional Executive in favour of the resolutions had recorded their votes.  That letter was apparently received by the Commission on 12 March. 

7                     On 12 March, the Queensland Construction Labourers Divisional Branch and the South Australian, Western Australian and Victorian Divisional Branches of the Construction and General Division wrote to Mr Sutton sending resolutions, which had been passed by their respective Divisional Branches Management Committees pursuant to Divisional Rule 10, to hold a referendum on whether the Divisional Executive of the Construction and General Division should make all necessary rule amendments, so that from and including the elections due in 2001, the offices of Divisional President, Divisional Secretary and two Divisional Assistant Secretaries must be filled by a direct secret ballot of all the financial members of the Division.

8                     On 13 March, Mr Sutton, by letter sent to Mr Kingham, refused to call off the postal ballot and said that it was valid.  He said that he had called a Divisional Executive meeting for 21 and 22 March. 

9                     On 15 March, Mr Kingham sent a letter by facsimile to Mr Sutton asking for the referendum arrangements to go on the agenda for the Divisional Executive meeting to be held on 21 and 22 March.  On the same day, Mr Sutton told Mr Kingham that the resolutions, the subject of the postal ballot, had been carried.  On that day, Mr Kingham wrote to Mr Sutton seeking a review by the Divisional Conference of the Divisional Executive’s decision made by the postal ballot.  The review was sought pursuant to Divisional Rule 8(x)(g).  Mr Kingham also asked Mr Sutton to give an undertaking to the effect that no steps would be taken to have the rule amendments certified until they had been reviewed by the Divisional Conference as requested in his letter.  On 16 March, Mr Kingham received a letter from Mr Sutton declining to give the undertaking. 

10                  On 16 March, I made an order in an earlier proceeding:  Kingham v Sutton (No V196 of 2001), restraining the members of the Divisional Executive from submitting the rule amendments, which had been the subject of the postal ballot, to the Industrial Registrar for certification, or otherwise giving effect to them.  At the same time, I granted a rule calling on the first respondents to show cause why orders should not be made for the performance and observance of the Divisional Rules.  The Industrial Registrar had indicated that she would not certify the rule amendments pending the determination of the rule which I granted.  That order was varied on 21 March to allow the Divisional Executive to consider and, if thought fit, pass resolutions rescinding the resolutions passed by the postal ballot and proposing the same resolutions at the Divisional Executive’s meeting on 21 and 22 March. 

11                  A meeting of the Divisional Executive commenced on 21 March and continued into 22 March.  On the first day, a motion was passed in the following terms: 

“… Divisional Executive determines that a meeting of the Divisional Conference is to be brought forward to May 8 or such earlier time as it can be practically organised and that the Divisional Secretary be authorised to take all steps necessary to facilitate such a meeting, including postal ballots of Divisional Executive, and that the Conference in question conduct the elections for Divisional Officer positions.” 

 

12                  When that motion was proposed and seconded, Mr Kingham objected to the motion being passed on the basis that the rule amendments bringing forward the executive elections had not yet been certified so that it was not possible to bring forward the elections.  That matter was discussed and after discussion the motion was passed. 

13                  On the afternoon of 21 March, Mr Kingham tabled a petition said to be signed by approximately 8,700 financial members of the Union seeking the calling of a referendum on a question relating to the changing of the Divisional Rules to enable direct election of the Divisional President, the Divisional Secretary and two Divisional Assistant Secretaries.  Mr Kingham then moved two motions.  The first motion was to establish a referendum committee to supervise the checking of the financial status of the signatories on the petition and to resolve, in the event that the petition was found to be requested by not less than ten per cent of the financial membership, that a referendum of all financial members then be held as soon as possible on the matter the subject of the petition.  The second motion stated the question for the referendum and related to practical arrangements to enable the referendum to be held as soon as possible.  The question was:

“Should the Divisional Executive of the CFMEU’s Construction and General Division forthwith make all necessary rule changes so that, as from and including the elections due in 2001, the offices of Divisional President, Divisional Secretary and the two Divisional Assistant Secretaries must all be filled by direct secret ballot of all the financial members of the Division?”

 

(This question was in the same terms as the question contained in the resolutions sent by the four Divisional Branches to Mr Sutton on 12 March). As at 28 February 2001, there were 63,858 financial members of the Division and 44,616 unfinancial members of the Division.  As at 31 March 2001, there were 66,439 financial members of the Division and 42,347 unfinancial members of the Division.

 

14                  The motions moved by Mr Kingham were put and lost.  A motion was then moved by Mr Sutton in relation to the petition that a request be made to him as the Divisional Secretary to obtain legal advice in relation to the issues raised by the petition, and the Divisional Executive’s obligations in relation to it, and that he be instructed to cause an investigation into the signatures on the petition.  That motion was passed. 

15                  On the next day, 22 March, a motion was moved and seconded to rescind the resolutions passed by the postal ballot which had concluded on 14 March, to amend the Divisional Rules to the same effect and to direct the National Secretary, or any other person authorised by him, to seek urgently the certification of the rule amendments.  The resolution proposed was in the following terms:

“This Divisional Executive in meeting assembled:

1.         Notes that proceedings have been commenced relating to the process of the rule change passed by postal ballot commencing 7 March 2001;

2.         Wishes to avoid unnecessary and expensive litigation for no ultimate practical purpose;

3.         Notes the amended form of the interim orders of the Court and, in particular, the amendment in effect allowing this Divisional Executive at this meeting to rescind the postal ballot changes and proposing anew those changes at this meeting.

Resolves

4.         To rescind the resolutions amending the Divisional Rules adopted by postal ballot conducted by the Divisional Secretary commencing 7 March 2001, AND

5.         To amend the Divisional Rules in the following manner:

[Detailed amendments were set out]

Further, the Divisional Executive directs the Divisional Secretary, or any person authorised by him, to seek urgently the certification of the above rule change in order that the Divisional Executive can act to overcome the paralysing effect that the current crisis is having upon the day to day operations of the Division, and to press upon the Industrial Registrar such urgency.”

 

That motion was debated and carried.  The effect of the rule amendments was to enable elections for positions on the Divisional Executive to be brought forward to a date earlier in the year.

 

16                  Mr Kingham then moved a motion seeking to have the Divisional Executive resolve that a special Divisional Executive meeting be held within ten days, and that the Divisional Secretary (Mr Sutton) be directed to report the results of checking the national financial membership roll in relation to the petition to establish whether the four branches constituted a majority of the membership and whether the petition had been signed by not less than ten per cent of the financial membership.  I take it that the motion was designed to have the petition implemented and carried into effect.  That motion was defeated. 

17                  On 23 March, I made interlocutory orders restraining the respondents from taking any steps to have the rule amendments certified by the Industrial Registrar.  I also ordered, pursuant to s 209 of the Act, that the respondents show cause why the following orders should not be made:

“1.       An order pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (‘the Act’) that the first respondents and each of them perform and observe the Rules (‘the Rules’) of the Construction, Forestry, Mining and Energy Union, Construction and General Division (‘the Division’) by treating as null and void and of no effect the resolution of the Divisional Executive of the Division passed on 21 March 2001 requiring that elections for the offices of Divisional Officers of the Division referred to in rule 9.2 of the Rules be held at a Divisional Conference of the Division to be held on or before 8 May 2001.

2.                  An order pursuant to s 209 of the Act that the first respondents and each of them perform and observe the Rules by forthwith referring for review by a Divisional Conference of the Division the resolutions of the Divisional Executive of the Division passed on 22 March 2001 to amend the Rules in relation to the calling and holding of biennial Divisional Conferences, the holding of elections and the taking up of offices after elections at Divisional Conference, and associated matters, referred to in pars 31 and 32 of Kingham’s affidavit (‘the rule amendments’).

3.         An order pursuant to s 209 of the Act that the first respondents and each of them perform and observe the Rules by refraining, by themselves, their officers, servants or agents, from submitting the rule amendments to the Industrial Registrar for certification, taking any other steps to have the rule amendments certified by the Industrial Registrar, or otherwise giving any effect to the rule amendments, until after the completion of the review by Divisional Conference referred to in order 2 above.

4.         An order pursuant to s 209 of the Act that the first of the first respondents (‘Sutton’) forthwith make all necessary arrangements for the holding of a referendum of the financial members of the Division as soon as possible on the following question:

 

‘Should the Divisional Executive of the CFMEU’s Construction and General Division forthwith make all necessary rule changes so that, as from and including the elections due in 2001, the offices of Divisional President, Divisional Secretary and the two Divisional Assistant Secretaries must all be filled by direct secret ballot of all the financial members of the Division?’

5.         An order pursuant to s 209 of the Act that the first respondents and each of them perform and observe the Rules by refraining from holding the elections for the offices on the Divisional Executive referred to in rule 9.2 of the Rules which are due in 2001 until after the completion of the referendum referred to in order 4 above.”

18                  On 12 April, I continued the injunctive relief granted on 23 March 2001 until the hearing and determination of the proceeding.  I also granted leave to the applicants to amend the order of 23 March by adding the following paragraphs:

“6.      Alternatively, an order pursuant to s 209(7) of the Act that Rule 8(x)(g) and Rule 9.15 of the Rules, or the Rules as a whole, contravene s 195(1)(b)(iv) and s 196(a) of the Act insofar as they do not require the Divisional Executive to refrain from implementing or otherwise giving effect to any of its decisions of which a review by the Divisional Conference has been requested, until the outcome of such review.

7.         Alternatively, an order pursuant to s 209(7) of the Act that Rule 8(x)(g) and Rule 9.15 of the Rules, or the Rules as a whole, contravene s 196(c) of the Act insofar as they do not require the Divisional Executive to refrain from implementing or otherwise giving effect to any of its decisions of which a review by the Divisional Conference has been requested, until the outcome of such review.  Alternatively, an order pursuant to s 209(7) of the Act that Rule 10.1 of the Rules, or the Rules as a whole, contravene s 195(1)(b)(iv), and s 196(a) of the Act insofar as they:

(a)               impose a requirement that a referendum may be requested, inter alia, by Divisional Branches representing a majority of members, including unfinancial members, of the Division; and

(b)               provide that the referendum will comprise a ballot of all members, including unfinancial members, of the Division.

8.                 Alternatively, an order pursuant to s 209(7) of the Act that Rule 10.1 of the Rules, or the Rules as a whole, contravene s 196(c) of the Act insofar as they:

(a)               impose a requirement that a referendum may be requested, inter alia, by Divisional Branches representing a majority of members, including unfinancial members, of the Division; and

(b)               provide that the referendum will comprise a ballot of all members, including unfinancial members, of the Division.

9.                 Alternatively, an order pursuant to s 209(7) of the Act that Rule 10.1 of the Rules, or the Rules as a whole, contravene s 195(1)(b)(iv) and s 196(a) of the Act and/or s 196(c) of the Act, insofar as they do not require the Divisional Conference, the Divisional Executive, any other committee of the Division, and the members of the Division to refrain from taking any action in relation to the subject matter of a referendum, properly requested under the Rules, that would prevent full effect being given to the matter if the referendum ballot was carried.”

 

19                  On 25 March, Mr Kingham wrote to Mr Sutton alleging that during the debate on the motion to amend the Divisional Rules, and after the motion was carried, he had orally requested that the Divisional Executive decision be reviewed by the Divisional Conference. 

20                  On 28 March, Mr Sutton responded to Mr Kingham’s letter stating that Mr Kingham had made no such oral request but that he would treat the letter as a request for a review by the Divisional Conference of the decision of the Divisional Executive relating to the rule amendments.  Mr Sutton also distributed to all members of the Divisional Executive a copy of the legal advice concerning the petition which he had received.

21                  On the same day, a physical examination and count of the petition documents was conducted.  This revealed that many of the pages were duplicated.  The petition was sorted into bundles for the respective branches.

22                  On 2 April, Mr Sutton instructed Mr Roberts, the National legal officer with the National Office of the Union, and Mr Knott (who had been seconded to the National Office from the New South Wales Divisional Branch for this purpose) to oversee the process of checking the petition.  Mr Sutton directed Mr Roberts and Mr Knott to go to the Queensland office to inspect the Queensland Branch’s membership records to confirm that the members identified in the petition were financial members and to form a  view whether the signatures were genuine by comparing them with each member’s original membership application form.

23                  On 3 and 4 April, Mr Roberts and Mr Knott attended the Brisbane office of the Queensland Construction Labourers Divisional Branch and checked the financial status of Queensland signatories of the petition.  Mr Roberts and Mr Knott then went to the Queensland Construction Labourers Divisional Branch office and checked the financial status of signatories belonging to that branch.

24                  At some time after 27 March, Mr Sutton decided to conduct the review of the decision of the Divisional Executive to amend the Divisional Rules, which Mr Kingham had sought, by way of a postal vote of the Divisional Conference delegates.  On 10 April 2001, Mr Sutton sent a letter dated 9 April 2001 to each of the delegates to the Divisional Conference enclosing a postal ballot asking members of the Divisional Conference whether they agreed with the decision of the Divisional Executive of 22 March 2001 and a copy of the terms of the resolution passed by the Divisional Executive. 

25                  On 12 April, I granted a further rule in another proceeding (V 271 of 2001) calling on the respondents to show cause why orders should not be made, inter alia, that they perform and observe the Divisional Rules by treating as null and void and of no effect Mr Sutton’s decision to conduct this postal ballot.  On 9 May 2001, I published my reasons for judgment in that proceeding:  Kingham v Ferguson [2001] FCA 537.  I determined that this postal ballot did not constitute a review by the Divisional Conference for the purposes of the Divisional Rules, and that if a review of a decision of the Divisional Executive by the Divisional Conference was to be undertaken, it must be undertaken at a meeting of the Divisional Conference.

26                  The checking of the signatures on the petition took a considerable time to complete and a report by Mr Roberts to the Divisional Executive was not completed by Mr Roberts until 7 June 2001.  The signatories on the petition had to be checked against records held by each State branch.  The checking was carried out not only to determine whether the signatories to the petition were shown by the records to be financial members but also to determine whether applications for membership of the Union had been received from the signatories and whether the signatures were genuine.

27                  The applicants submitted there had been an inordinate delay in the processing of the checking of the signatories on the petition and that it had not been carried out within a reasonable time.  It was contended that Mr Sutton had an improper purpose in delaying the progress of the checking of the petition and the carrying out of the referendum, which was to delay the referendum and expedite the amendments to the Divisional Rules so that he could have the opportunity to stand for re‑election in a collegiate election and avoid having to stand for election in a direct ballot of all the membership of the Division.

28                  Although the checking of the signatures on the petition took a very long time, it was interrupted on occasions by the participants in it being away on leave and by delay in obtaining access to records.  In the events which have occurred, it is not necessary to make a finding whether Mr Sutton delayed the process of checking the signatories on the petition for an improper purpose as a report on the petition was given to the Divisional Executive on 7 June 2001.  If there has been a delay because of an improper purpose, then the result would be that the referendum should be implemented forthwith if it has been demonstrated that the referendum was requested by the required number of qualified members.  If the evidence does not establish that it has been so requested, then no order need be made as to the holding of the referendum.  Whether the referendum has been so requested is one of the issues I am required to determine in this proceeding.

29                  By letter dated 11 May, Mr Sutton initiated a third postal ballot of the members of the Divisional Conference.  They were not asked to review the decision of the Divisional Executive;  rather they were asked the anterior or threshold question whether the Divisional Conference wished to conduct the review which Mr Kingham had sought of the Divisional Executive’s decision to make the rule amendments.

30                  On 16 May, the applicants made an application for a rule to show cause why certain orders should not be made that the members of the Divisional Conference of the Division (other than the applicants) perform and observe the Divisional Rules (proceeding No V 351 of 2001).  This rule related to the postal ballot of the members of the Divisional Conference on the question whether to conduct a review of the Divisional Executive’s decision to make the rule amendments.  I granted the rule on 16 May.  The applicants did not seek interlocutory relief because of the continuation of the interlocutory orders in this proceeding and the undertakings of the respondents.

31                  On 7 June 2001, Mr Roberts completed a report to Mr Sutton of the outcome of the inspection of the petition.  The respondents claimed that the inspection process established that only 5,257 financial members of the Division had signed the petition as this was the number of financial members for whom membership application forms (or cards) signed by the member had been located in the Union’s records. The report disclosed that there were 8,615 signatures on the petition and that 7,376 signatories were verified as being the names of financial members.  The parties agreed that adjustments needed to be made to this figure and it was agreed that 6,972 signatories to the petition were shown to be financial members, although application forms for membership could not be located in the Union’s records for 1,715 of these signatories.  The figure of 5,257 financial members represented 8.2% of the financial membership of the Division as at 26 February 2001 and 7.91% of the financial membership of the Division as at 31 March 2001.  The figure of 6,972 financial members represented 10.92% of the financial membership of the Division as at 28 February 2001 and 10.49% of the financial membership of the Division as at 31 March 2001.  The applicants  had contended that the evidence disclosed that 6,985 signatories to the petition were financial members.  The figure of 6,985 financial members represented 10.94% of the Division’s financial membership as at 28 February 2001 and 10.51% of the Division’s financial membership as at 31 March 2001.  The figure of 6,985 financial members does not materially alter the percentage figures derived from the figure of 6,972 financial members.  The applicants accepted the figure of 6,972 financial members for the purposes of the proceeding and I use the figure of 6,972 financial members for the purposes of these reasons.

Relevant Rules of the Union

32                  The issues for determination arise in the context of elections for positions on the Divisional Executive of the Construction and General Division which, under the Divisional Rules, in their present certified form, are to be held sometime after September this year. “Rules of the Union” are defined in rule 5 of the National Rules of the Union as “all of the Rules of the Union as read and construed in totality”.  The relevant rules of the Union are the Divisional Rules, the Rules of the Construction and General Division Branches (“the Divisional Branch Rules”) and the Rules of the Construction, Mining and Energy Union (“the National Rules”).  The Divisional Rules and the Divisional Branch Rules are contained in the one document.

33                  It is helpful to understand the hierarchy of decision‑making in the Construction and General Division of the Union for which there are Divisional Rules separate from the National Rules of the Union.  Divisional Rule 8(i) provides that:

“The supreme governing body of the Division shall be the Divisional Conference.”

 

34                  The Divisional Conference consists of delegates:  Divisional Rule 8(ii), and the number of delegates depends upon the application of the formula and the provisions found in Divisional Rules 8(iii) and (iv).  The election of delegates to the Divisional Conference is a separate and distinct process from the election of persons to the Divisional Executive.  The procedure for the election of Divisional Branch delegates to the Divisional Conference is found in rule 17(iii) of the National Rules, not the Divisional Rules.  Delegates to the Divisional Conference are elected for a term of four years:  National Rule 17(i).

35                  Rule 18 of the National Rules provides, relevantly:

“(i)      There shall be a Divisional Executive composed in accordance with Divisional Rules and elected in accordance with such Divisional Rules.

(ii)       Every Divisional Executive shall be elected either:

(a)        by and from the Divisional Conference; or

(b)        by direct ballot of the financial members of the Division.”

 

36                  The Divisional Conference sits at the apex of the hierarchy of the Division.  It has power “to confirm, over‑rule or otherwise deal with decisions of the Divisional Executive or Divisional Branches” of the Division:  Divisional Rule 8(x)(g), and has power “to make, alter and rescind rules” of the Division or any Divisional Branch:  Divisional Rule 8(x)(k).  Divisional Rule 8(xvi) provides, relevantly:

“The Divisional Conference shall have and exercise all of the powers of the Divisional Executive and shall deal with any matter or matters referred to it by the Divisional Executive.”

37                  Elections for the Divisional Executive are held every four years (commencing in 1993):  Divisional Rule 9.2, and the process for conducting those elections commences in September of the election year.  Pursuant to Divisional Rule 9.5, nominations are to be called by the returning officer on the last Friday in September in the year of the Divisional Conference.  The Divisional Executive is given extensive powers.  Divisional Rule 9.15 provides:

“The Divisional Executive shall, have and may exercise, subject to the review of its actions by Divisional Conference, the care, control, superintendence, management and administration in all respects of the affairs, business, Divisional funds and the property of the Division and have and exercise all of the powers of the Divisional Conference, and, without limiting the generality of the foregoing it may –

(a)       Interpret and enforce the general policy of the Division;

(b)       Control and conduct the business and affairs of the Division;

…

(n)               To make, alter and rescind rules.” 

(emphasis added)

38                  The Divisional Rules also provide for the opportunity for referenda to be held within the Division.  Divisional Rule 10(i) provides:

“On a decision of a majority of Divisional Branches, or Divisional Branches whose membership constitutes a majority of the members of the Division or on receipt of a petition signed by not less than 10 per cent of the financial members of the Division, Divisional Executive shall take a referendum of the whole of the members of the Division upon the matter or matters submitted by the Divisional Branches or members.  A decision reached by a majority of the actual votes recorded shall be binding on the Divisional Conference Divisional Executive and the members of the Division.”

 

Provision is also made in Divisional Rule 10(ii) for the manner in which any referendum is to be conducted. 

 

39                  Both the National Rules and the Divisional Rules contain provisions in relation to membership of the Union.  Rule 7 of the National Rules is headed “Membership” and provides, relevantly:

“(i)      A candidate for membership of the Union may make application to the National Secretary, the Division covering the occupation or industry in which the person is employed, the Branch covering the area in which the person is employed or resides, or the Divisional Branch covering the industry or occupation in which the person is employed, usually employed or desirous of being employed and the area in which the person resides or is employed, and such application shall be made and dealt with in the manner and subject to the conditions including conditions as to any probationary period required by the rules of the Division.  Any application shall be forwarded to the office in the appropriate Division which under the rules of that Division deals with such applications.  The decision to accept or reject that application shall be made in accordance with the Rules of that Division by that office.  Provided that where a person makes application to any officer of the Union that application shall be a valid application for membership of the Union and the Union shall, treat the member as a member of the Division to which the officer is attached until transferred in accordance with the rules.

(ii)               Candidates shall supply such information as to their identity and occupation, and such other particulars as to their eligibility for membership and the benefits of membership as the Rules of the Union may require, and shall, when requested, fill in and sign such application form as may be provided.

…

(v)(a)   Notwithstanding anything elsewhere contained in the Rules of the Union no application for membership for the union shall be void or irregular only for the reason that the form of the application is not fully completed or completed at all, or that some other form of application is used, or any other procedure under the Rules has not been complied with provided that the person intended to, and did in fact, in some way or other, apply for membership and the Union treated the person as a member.  A member may be transferred to another Division, Branch or Divisional Branch without loss of continuity of membership.  Without limiting the generality of the foregoing, a person who, at the time of the application for membership was not eligible to be or become a member, shall be and become a member as soon as the person is eligible to be and become a member or earlier if by any Act, law or other Rule the membership is otherwise validated provided that the person performs an act which evidences an intention to be or become a member.  For all purposes the payment of union dues in whole or in part shall be taken to be, without limiting the generality of the foregoing, a method by which a person intended to, and did in fact, in some way or other, apply for membership and/or evidences an intention to be or become a member.”

 

“Member” is defined in National Rule 5 as “a member of this union, male or female”, and “Financial member” is defined in National Rule 5 as “any member who has paid all subscriptions, fines, levies and dues in accordance with the Rules of the Union”.

 

40                  Divisional Rule 4 relates to membership of the Division.  It provides, relevantly:

“(i)      A candidate for membership of the Division may make application to the Divisional Branch covering the area in which he or she resides or is employed, and such application shall be made and dealt with in the manner and subject to the conditions including conditions as to any probationary period required by the rules of the Divisional Branch to which it is made. Notwithstanding anything herein prescribed Divisional Branch rules may provide other methods of applying for membership.

(ii)       (a)       Candidates shall supply such information as to their identity and occupation, and such other particulars as to their eligibility for membership and the benefits of membership as the Divisional Branch may require, and shall, when requested, fill in and sign such application form as may be provided.

…”

41                  Divisional Rule 6 relates to contributions payable by members and provides, relevantly:

“2.       Any member who has failed to pay the entrance fee, all contributions, levies and fines imposed in accordance with these or the Divisional Branch rules on or before the date specified in the Divisional Branch rules, shall be deemed to be unfinancial, and shall not be eligible, provided that the Divisional Branch rules may provide that such members or some class or classes of such members may vote in a ballot, to receive any benefits, participate in any deliberations, propose or second any new applicant member for admission, or exercise any authority or any membership rights.

…”

 

Divisional Rule 7.2 provides that “a Divisional Branch Management Committee may in its discretion cancel, waive, credit or otherwise diminish either in whole or in part, any contributions, fees levies or other arrears … for such reason as the Divisional Branch Management Committee feels appropriate”.  The grounds on which the Committee may do so include, in particular, “any other hardship, or prejudice or disadvantage” and “the maximisation of participation of members in Union affairs and the maximisation of financial union membership”.

 

42                  Divisional Branch Rule 30 also makes provision for membership of the Union and the Divisional Branch.  It provides, relevantly:

“(i)      General Section

(a)               Applications for membership of the Union and/or Divisional Branch shall be on a form published by the Divisional Branch and shall be signed by the applicant.

 

No omission, irregularity or want of form shall invalidate an application for membership provided that the person applying intended the document to be so treated and the union treated the document as an application form for membership.

(b)               A person applying for membership shall, on the membership application form, state which classification the applicant for membership considers to be his or her appropriate classification.  All applications for membership shall be lodged with the Divisional Branch Secretary or such other person authorised by the Divisional Branch Council.  Applications for membership shall be dealt with by the Divisional Branch Management Committee or another committee authorised by Divisional Branch Council, who shall, if satisfied with the bona-fides and qualifications of the applicant, admit him or her to membership of the Divisional Branch and the Union.

 

The classification determined in accordance with this sub‑rule:

(i)                 shall be solely for the purpose of determining the eligibility of each member to nominate for election to any office within the Division or Divisional Branch where election to such office is dependent upon the members falling into one or other classification;

(ii)               shall be conclusive; and

(iii)             shall bind the Divisional Branch Returning Officer.

(c)               On being admitted to membership of the Divisional Branch a member shall, ipso facto, be and be deemed to be a member of the Construction and General Division, the Divisional Branch, and the Union.

(d)               …

(e)               …

(f)                A new member shall pay on application for membership all moneys required to be paid by a new member – Entrance Fee, one half year’s contribution.

(g)               Applicants for membership shall be qualified workers of good character, and shall, when admitted to membership, enjoy all advantages of membership so long as they comply with the registered rules of the Union.

…”

43                  Divisional Branch Rule 32 relates to contributions by members and Divisional Rule 32(c) is headed “Arrangements for Deduction Schemes”.  It provides:

“(c)     Notwithstanding anything elsewhere in the rules the union may make arrangements with an employer (including any Government Department) or any Bank, Building Society, Credit Union or other financial institution for the regular deduction, on the authority of a member, of amounts whether by way of contributions (rounded up, if necessary, to a multiple of five cents), levies or any other monies which may be payable by a member to the union pursuant to the Rules, from the wages or monies payable to the member or from any account maintained by the member as the case may be, and then so long as an authority by the member for the deduction of contributions and other financial dues which is acceptable to the Divisional Branch remains in force, the member shall be deemed financial, notwithstanding that the payments are not made in advance as required by this Rule; provided that the member was financial immediately prior to arranging such deduction.”

 

Issues for determination

44                  The grounds on which the rule to show cause, as amended, was granted raise issues as to the right to have a review of the decision of the Divisional Executive on 22 March 2001 to amend the Divisional Rules, the requirement that a referendum of financial members be held and the holding of elections for offices on the Divisional Executive.  The grounds conceal a number of specific issues which fall for determination.  The parties agreed that those issues could be exposed by a series of questions.  The applicant formulated the following questions, which included questions formulated by the respondents, and added further questions, most of which were accepted as relevant and appropriate questions by the respondents:

A         On the true construction of Divisional Rule 10:

1.                  Is the reference to “members” or “membership” simpliciter a reference to “financial members” for the purpose of:

(a)     determining whether a request by Divisional Branches requires a referendum to be held;

(b)     conducting a referendum of the whole of the membership of the Division?

 

2.         If “members” or “membership” does not mean “financial members” or “financial membership”, does the rule operate in a way contrary to s 196 of the Act?

 

3.         Does a petition being received by the Divisional Secretary and/or Divisional Executive require the cessation of any action of the Division inconsistent with any final answer on the petition?

 

4.         Does the answer to A3 depend on whether there has been a determination that the petition is signed by ten per cent of the financial membership of the Division?

 

5.         If the answer to A3 is no, are the rules such that, as a whole, they fail to make a provision required by the Act or do they contravene s 196 of the Act in any respect?

 

6.         What is the relevant date for determining whether the Divisional Branches that requested the referendum constituted a majority of the financial membership of the Division?

 

B          Request for review:

1.         Does a request for a review of a decision of the Divisional Executive operate to prevent implementation of the Divisional Executive decision until the review is carried out? 

 

2.         If not, are the rules contrary to the Act?

 

C         The Referendum Question:

1.         Is the question, the subject of the request for a referendum, one which requires an alteration to the National Rules?

 

2.         If yes to C1, is the answer to the referendum question binding on the Union?

 

3.         If no to C2, must the referendum still be held?

 

4.         Is the question, the subject of the request for a referendum, capable of giving rise to an answer which will have the effect of altering the method of election of some of the Divisional Officers otherwise due to be elected at the Divisional Conference in 2001?

 

5.         If yes to C4, does that answer negate the requirement to hold the referendum so far as it relates to the 2001 election?

 

D         On the true construction of the rules of the Union insofar as they are binding on members of the Construction and General Division:

 

1.         Does the payment of fees to the Union by a person render, without any other step, the person a member of the Union?

 

2.         Does that position alter if the payment of the fees is made by someone other than the person in relation to whom the fees are paid?

 

3.         Does the Divisional Executive have the right and/or power to determine whether a signature on a petition is the signature of a member and determine whether the requirements of Divisional Rule 10 have accordingly been met?

 

4.         Has the petition been signed by ten per cent of the financial members of the Construction and General Division?

 

I turn first to the issues relating to the review sought of the decision of the Divisional Executive to amend the Divisional Rules.

 

Review of the Decision of the Divisional Executive

45                  Although the questions formulated by the parties in relation to the request for review of the Divisional Executive’s decision related to whether the request for review operated to prevent implementation of the decision and, it if did not, whether the Divisional Rules were contrary to the Act, it is still necessary to resolve the threshold issue whether Mr Kingham is entitled to require the Divisional Conference to review the decision.

46                  The applicants submitted that:

·                    a valid request for a review of the Divisional Executive’s decision had been made and that the Divisional Conference was obliged to review the decision;

 

·                    there was an implied restraint on the power of the Divisional Executive and the Divisional Secretary to give effect to the decision pending the outcome of the review;

 

·                    if the Divisional Rules did not require such restraint, they contravened s 196 of the Act.

 

In Kingham v Ferguson [2001] FCA 537, I held that if a review of the decision of the Divisional Executive by the Divisional Conference was to be undertaken, it could not be undertaken by a postal ballot but had to be undertaken at a meeting of the Divisional Conference.  In the course of my reasons for judgment I said:

 

“41      There is no provision in Divisional Rule 9.15 which sets out a mechanism for the institution of a review or the right to call for a review to be undertaken. There is no provision which sets out who has the right to call for a review of the actions of the Divisional Conference, and there is no provision which sets out how a meeting of the Divisional Conference is to be called once a review has been sought. The Divisional Rules are silent on the issue of the calling of a Divisional Conference to undertake a review of the actions of the Divisional Executive. Unless the Divisional Executive refers a matter to the Divisional Conference and the Divisional Secretary calls a Special Divisional Conference:  Divisional Rule 8(xvi), or a majority of Divisional Branches call for such a meeting or a petition signed by 10% of the financial members of the Division is received: Divisional Rule 8(xv), a review of the actions of the Divisional Executive by the Divisional Conference must await the biennial meeting of the Divisional Conference to be held some time after September 2001: Divisional Rule 9.5.

42        But there is no provision in the Divisional Rules which creates or establishes the right in any person to ask the Divisional Conference to undertake a review of the actions of the Divisional Executive.  The language of Divisional Rule 9.15 is couched in terms which leave it to the Divisional Conference to determine whether it will review any actions of the Divisional Executive.  It is not required to do so, even though it may be asked to do so by a member of the Division or a member of the Divisional Executive.

43        The Divisional Conference, if requested, is only required to consider whether it will undertake a review of the action of the Divisional Executive.  For example, if a request is made by a member of the Divisional Executive for a review by the Divisional Conference of a Divisional Executive action, the Divisional Conference can decline to undertake the review sought. Divisional Rule 8(x)(g) is discretionary as to the outcome of the review by the Divisional Conference, and Divisional Rule 9.15 is discretionary as to whether any review is to be undertaken.

44        Put shortly, if requested, the Divisional Conference is not under any duty to undertake a review of the action of the Divisional Executive.  It may do so if it so resolves.”

47                  The applicants submitted that my observation that the Divisional Conference could decline to review a decision of the Divisional Executive was obiter because the respondents in that proceeding, delegates to the Divisional Conference, accepted that the postal ballot constituted the undertaking of the review.  It is correct to say that the issue before the Court on that occasion was the validity of the postal ballot as a review by the Divisional Conference and I am content to reconsider the matter as it arises squarely for decision in this proceeding.  The respondents submitted that the issue whether the Divisional Conference was obliged to undertake a review of a decision of the Divisional Executive, if requested, had been addressed fully in my earlier judgment and they relied upon the matters raised in that proceeding and on my reasons for judgment.

48                  The applicants submitted that there is no power in the Divisional Conference to decline to conduct a review which has been sought in relation to a decision of the Divisional Executive.  They contended that Divisional Rule 9.15 gave the Divisional Conference jurisdiction to review the actions of the Divisional Executive and that the invocation of that jurisdiction carried with it a prima facie right to insist upon exercise of that jurisdiction.

49                  The applicants drew in aid the observations of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 12-13:

“The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked.  That prima facie right to insist upon exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10^th ed (1959), p 193).  In the rare instances where a particular court or tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise.”

 

I accept, with respect, his Honour’s exposition as a fundamental principle which applies to access to a judicial and quasi-judicial system.  That principle pre-supposes the undisputed right of every member of the community to benefit from the protection of the rule of law.  But in the arena of decision‑making within an industrial organisation different considerations apply because there are particular functions and powers committed to particular levels of decision‑making.  Although the Divisional Conference has, and can, exercise all the powers of the Divisional Executive, there is no specific right of review of a decision of the Divisional Executive given to any person or body.  As I pointed out in par 41 of my earlier reasons, there is no provision in Divisional Rule 9.15 which sets out a mechanism for the institution of a review.

 

50                  I am unable to discern in Divisional Rule 9.15 the existence of a prima facie right in any person to have the Divisional Conference review a decision of the Divisional Executive.  At most, there is the opportunity given to the Divisional Conference to undertake such a review, if it is disposed to do so.  I hold to the views I expressed in pars [41] to [44] of my earlier reasons (par 46 above).

51                  I turn to the applicants’ submission that there is an implied restraint on the power of the Divisional Executive and the Divisional Secretary to give effect to the decision of the Divisional Executive approving the rule amendments pending the outcome of the requested review.  If there be no right to have a review undertaken by the Divisional Conference, there can be no such implied restraint.  However, I take the applicants’ submission to include a submission that there is such an implied restraint pending the decision of the Divisional Conference whether to undertake a review, and pending the outcome of the review, if a decision is taken to undertake the review.

52                  The applicants submitted that unless such an implied limitation existed, any review and, correspondingly, any request for a review could well be rendered nugatory.  An example was given of a decision by the Divisional Executive to contribute a large sum of money to a particular political cause which could not be undone if it was ultimately reviewed adversely by the Divisional Conference.  It was said that such an outcome could not have been intended and would negate the control of the Divisional Executive by the Divisional Conference which was part of the democratic process built into the rules and required by the Act.

53                  Authority supports the proposition that although one cannot imply provisions into certified rules of registered organisations, it is possible in appropriate circumstances upon the proper construction of the rules to imply in the rules of a registered organisation a limitation on the express powers contained in the rules of the organisation:  Porter v Dugmore (1984) 3 FCR 396 at 407 per Smithers J; Scott v Jess (1984) 3 FCR 263 at 283‑284 per Gray J; Darroch v Tanner (1987) 16 FCR 368 at 377;  Belan v National Union of Workers [2001] FCA 724 at [48].  Examples of implied limitations on express powers contained in certified rules can be found in Allen v Townsend (1977) 31 FLR 431 at 483‑488 (use of power for proper purposes) and Adlam v Noack (1997) 90 IR 31 at 36 (prohibition on use of position to effect harassment).

54                  The applicants submitted that the existence of the implied limitation for which they contended was to be derived from the express terms of the rules, the provisions of the Act and the Regulations made under it and the nature, function and purpose of the Union.  However if the implied limitation exists, it has the capacity to interfere with, and impede, the conduct, management and administration of the Union and its affairs in a way which can make the Union unworkable.

55                  The applicants placed no boundaries or limitation on the implied restraint for which they contended other than that if a review of a decision of the Divisional Executive was requested, the decision could not be implemented or carried into effect until the outcome of the request for the review was known.  Such a limitation or restraint would apply, according to the applicants’ submission, no matter what the nature of the decision sought to be reviewed.  I do not consider that such a limitation can be distilled from the express terms of the rules.  Divisional Rule 9.15 commits the control, management and administration of the affairs, business and funds of the Construction and General Division to the Divisional Executive in all respects.  Such a provision tells against an implied limitation which would seriously interfere with such a broad power of control and management.  It is true that the rule provides that such power is to be exercised subject to the review of the actions of the Divisional Executive by the Divisional Conference.  But, as I have found, that provision does not create a right to have a review undertaken by the Divisional Conference;  rather it gives the Divisional Conference the opportunity to carry out such a review if it is so disposed.  In such circumstances, I do not consider that the Divisional Rules require such a limitation to be implied and imposed.

56                  The Act may require the Construction and General Division to be run democratically.  Sections 187A(a) and (b) provide that Pt IX of the Act has the objects of encouraging the democratic control of registered organisations and encouraging members to participate in the organisations’ affairs.  Section 195(1)(b)(iv) may require the Divisional Rules to provide for the control of the Divisional Executive by the members of the Construction and General Division.  But those objectives are achieved by the present structure of the management of the Construction and General Division and the election by members of delegates to the Divisional Conference and the election of members of the Divisional Executive by those delegates.  In order for a union to be run democratically and have its committees controlled by its members, it is not necessary or desirable that the body to whom the management of the day-to-day affairs of the union has been committed be restrained in implementing its decisions whenever a member or officer wishes to have the Divisional Conference review a decision of that body.

57                  It may well be that there will be decisions which, absent the limitation contended for, will be implemented before the Divisional Conference can decide whether or not to review a decision by the Divisional Executive, but that is a consequence of the particular structure of the rules adopted by the members of the Union.  In some circumstances, a stay or restraint on the implementation of a decision of the Divisional Executive may be desirable pending a determination by the Divisional Conference to review the decision, but the fact that such a restraint is desirable is no justification for a court implying such a limitation on the ability of the Divisional Executive to implement its decision, unless the limitation is dictated by the proper construction of the Divisional Rules or relevant provisions of the Act.

58                  This approach to the construction of the rules of a registered organisation was sanctioned by Deane J, sitting as a member of a Full Court of the Federal Court in Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129.  His Honour said at 164‑165:

“The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant.  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 FLR 347]; Cassidy v. Amalgamated Postal Workers’ Union of Australia [(1967) 11 FLR 124];  Wiseman v. Professional Radio and Electronics Institute of Australasia [(1978) 35 FLR 24];  Re Airline Hostesses’ Association [(1980) 48 FLR 214]. This Court has no authority generally to supervise the content 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 Doyle v Australian Workers’ Union (1986) 12 FCR 197 at 205‑206.

59                  It follows from this analysis that I do not consider that the Divisional Rules, to the extent to which they do not contain the implied limitation contended for by the applicants, contravene ss 196(a) and (c) of the Act.

The referendum issue

60                  The “referendum issue” has two principal aspects.  The first aspect is whether the question proposed to be put to the members of the Construction and General Division (and it is an issue whether the question is to be put to all the members, whether financial or unfinancial, or only to the financial members) has been submitted by Divisional Branches with the appropriate majority of members, or has been the subject of a petition signed by the required number of financial members.  The second aspect is whether the receipt of a petition for a referendum on a question by the Divisional Secretary or the Divisional Executive has the effect or result that the Division must cease any action which would preclude or prevent the implementation of the outcome of the referendum.  In short, the applicants contended that until the referendum was held and the result determined, no elections should be held for positions on the Divisional Executive.

Construction of Divisional Rule 10

61                  The point in issue is whether, as the applicants contend, the words “members” and “membership” in Divisional Rule 10 mean “financial members” and “financial membership” or whether the words encompass unfinancial as well as financial members, as the respondents contend.

62                  Divisional Rule 10(i) (par 38 above) provides that the Divisional Executive shall take a referendum of the whole “of the members of the Division” on a particular matter on:

·                   A decision of a majority of Divisional Branches, or Divisional Branches whose membership constitutes a majority of “the members of the Division”; or

 

·                   On receipt of a petition signed by not less than 10 per cent of the financial members of the Division.

 

The applicants submitted that they had satisfied both these limbs by the resolutions of the Queensland Construction Labourers Divisional Branch and the South Australian, Western Australian and Victorian Divisional Branches of the Construction and General Divisions sent to Mr Sutton on 12 March 2001 and the petition tabled at the Divisional Executive meeting on 21 March 2001.  The respondents contended that the applicants had not satisfied either of those limbs.

 

63                  Turning to the first limb of Divisional Rule 10 relied upon by the applicants (a decision of Divisional Branches whose membership constitutes a majority of the members of the Division), it was accepted by the applicants that if a majority of the whole of the membership (financial and unfinancial) was required for the purpose of this rule, the four branches not would not have the required number.  However, if the majority required was a majority of the financial members, the applicants contended that the four branches did have the required number because, as the branch resolutions were passed on or about 12 March 2001 and delivered to the Divisional Executive on or about that date, the 28 February 2001 figure of 63,858 financial members was the relevant figure for determining whether the four branches had a majority.  On that date, the four relevant branches had a majority of the financial membership as follows:

·                    Victoria                        –     19,145 financial members

·                    Queensland Labour      –     4,529 financial members

·                    South Australia             –     2,327 financial members

·                    Western Australia         –     6,056 financial members

This leads to a total figure of 32,057 financial members, which is in excess of half of 63,858 financial members.

 

64                  There is a tension between the drafting of Divisional Rule 10 and what appears to be the policy in the Divisional Rules that the right to vote on issues which arise for consideration by the membership of the Division is reposed only in financial members.  The appearance of the words “membership”, “members of the Division”, “financial members of the Division” and “the whole of the members of the Division” in close proximity to each other in the one rule suggests that the different expressions have been deliberately chosen and that any difference in their meaning and connotation has been recognised and taken into account.

65                  However, the rule is not free from ambiguity notwithstanding the changes in the terminology, having regard to the provisions in other Divisional Rules and National Rules which tend to suggest that any voting rights held by members are only to be held by members who are financial members. 

66                  Divisional Rule 6.2 (par 41 above) precludes unfinancial members from exercising any membership rights, which include the right to vote.  However, there is a proviso in that rule that Divisional Branch Rules may provide that an unfinancial member may vote in a ballot.  Divisional Rule 10(ii) sets out the manner in which a referendum is to be conducted and sub‑rule (e) of that rule provides that:

“In all other respects the referendum shall be held as nearly as practicable in the manner provided for the holding of elections of Divisional Branch Officers.”

 

Divisional Branch Rule 38 contains the provisions for the holding of elections of Divisional Branch Officers.  Sub‑rule (o) of that rule provides, in part:

 

“All financial members as defined in this rule shall be entitled to vote for all positions.”,

 

with a proviso limiting the right to vote for particular councillor members in particular trade districts.

 

67                  Sub‑rule (p) of that rule provides:

“For the purpose of the election the books of the Divisional Branches shall be deemed to have closed as at 30th September in the year of the election.  Only members who are shown in the records at the office of the Divisional Branch as having paid all contributions, levies and fines prior to the 30th September shall be entitled to vote.  Provided that any member who at any time prior to the closing of the ballot satisfies the Divisional Branch Returning Officer that they have paid all contributions, levies and fines prior to the 30th September in the year of the election shall be entitled to receive a ballot paper and the Divisional Branch Returning Officer shall send by certified post, a ballot paper in accordance with sub‑rule (n) of this rule.”

 

Divisional Branch Rule 38 makes it clear, in my view, that Divisional Branch officers are to be elected by financial members.

 

68                  The policy of only financial members of the Union being eligible to vote on matters affecting members is also reflected in National Rule 20, which is in the following terms:

“1.       On a decision of a majority of Divisions or Branches or Branches whose membership constitutes a majority of the members or on receipt of a petition signed by not less than 10 per cent of the financial members of the Union, the National Executive shall take a referendum of the whole of the members of the Union upon the matter or matters in the decision of the Divisions or Branches or in the petition.  A decision reached by a majority of the actual votes recorded shall be binding on the Union and the members of the Union provided that the decision shall not affect the autonomy of any Division.

…

3.         The referendum referred to in this rule shall be conducted as follows:

National Executive shall:

Determine the question to be submitted to the members and the form of the ballot paper.

Fix the times for the despatch and return of ballot papers and give the necessary instructions for printing of same.

Appoint a National Returning Officer and National Scrutineer in conjunction with Divisional Branch Returning Officers to conduct the ballot.

No material other than that authorised by the National Conference or National Executive shall be enclosed in the envelope in which the ballot paper is posted to the member.

In all other respects the referendum shall be held as nearly as practicable in the manner provided for the holding of elections of Divisional Branch delegates to Divisional Conference as set out in Rule 17(iii) except that the roll of voters shall be the financial membership at the end of the calendar month immediately preceding the holding of the referendum.”

(emphasis added)

 

National Rule 20(1) is, relevantly, in similar terms to Divisional Rule 10(i) but the last paragraph in National Rule 20(3) has no counterpart in those terms in Divisional Rule 10(ii), other than the incorporation by Divisional Rule 10(ii)(e) of Divisional Branch Rule 38.

 

69                  It should also be noted that Divisional Branch Rule 68 provides for a referendum of the members of a Divisional Branch, requested in respect of a matter determined by a Divisional Branch Council, to be held of “the whole of the financial members of the Divisional Branch”.  It would be a surprising result if the Divisional Rules provided for a referendum to be taken of the financial membership of a Divisional Branch, yet provided for a referendum of the unfinancial as well as the financial members of the Division.

70                  Thus far I have considered those specific provisions which provide for the right to vote in a ballot or a referendum.  It is not easy to reconcile those provisions with the clear language used in Divisional Rule 10(i) which contrasts “Divisional Branches whose membership …”, “members of the Division” and “the whole of the members of the Division” with “financial members of the Division”.

71                  Nevertheless, I consider that such a reconciliation can be achieved when there is a recognition that Divisional Rule 10 contains two stages at which the nature of the relevant membership of the Division is to be determined or identified.  The first stage is a threshold which has to be crossed before a referendum is to be held.  The second stage is the actual conduct of the referendum.  The first stage requires a sufficient number of members to require a referendum to be held before the Divisional Executive is bound to hold the referendum.  That threshold can be achieved in any one of three ways which are specifically identified.  The first way is not dependent upon a calculation of numbers of financial members or numbers of all members, financial and unfinancial.  It is simply achieved if a majority of Divisional Branches makes the decision that a referendum should be held.  The second way the threshold is achieved is by the decision being made by any number of Divisional Branches whose membership (financial and unfinancial) constitutes a majority of the membership (financial and unfinancial) of the Division.  The final way by which the threshold is achieved is by an alternative formulation, this time determined by reference to a percentage (ten) of financial members of the Division.  Any one of these three groups is regarded as a sufficient support for a matter to be put to the financial members of the Division by way of referendum.

72                  Once this threshold is achieved, then the referendum is to be held, but only of financial members.  Although Divisional Rule 10(i) commands the Divisional Executive to take a referendum of “the whole of the members of the Division”, Divisional Rule 10(i) does not specify how that referendum is to be taken.  The provisions setting out how the referendum is to be taken are found, in particular, in Divisional Rule 10(ii)(e) which picks up, in particular, the provisions of Divisional Branch Rule 38(o) and (p) which provide for only financial members being entitled to vote.  Thus when Divisional Rule 10(i) provides that the Divisional Executive is to take a referendum “of the whole of the members of the Division”, it is referring to the whole of the members of the Division entitled to vote in the referendum. The drafting of clause 10(i) is predicated upon a distinction between identifying the manner in which the threshold has to be met, and then providing, once the threshold is met, that the referendum is to be open not just to those participating in the decision to hold the referendum but to the whole of the members of the Division entitled, according to other provisions in the Divisional Rules such as Rule 10(ii)(e) and 38(o) and (p), to vote in a referendum.  Those members are the financial members.

73                  So construed, any ambiguity in Divisional Rule 10(i) is resolved and although the terms “membership” and “members” where first appearing in the rule do not mean “financial membership” and “financial members”, I do not consider that the rule, so construed, operates contrary to s 196 of the Act, as the applicants contended, in that it imposes on financial members conditions, obligations or restrictions which are oppressive unreasonable or harsh.  In reaching this conclusion, I have adopted the meanings which Deane J ascribed to those words in Municipal Officers’ Association v Lancaster (supra) at 165:

“To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful … To be unreasonable, it must be immoderate and inappropriate.  To be unjust it must be contrary to right and justice and to ordinary standards of fair play …”

 

The ultimate outcome of a referendum is to be determined by the financial members and a body of financial members (ten per cent of their total) have the right to call for a referendum. 

 

Does a petition being received by the Divisional Secretary and/or Divisional Executive require the cessation of any action of the Division inconsistent with any final answer on the petition?

74                  The applicants submitted that the presentation of a petition for a referendum, or the request by four branches for a referendum, operated to restrain the Divisional Executive from taking any action which would be inconsistent with any final answer on the petition.  They contended that there was an implied limitation on the exercise by the Divisional Conference, Divisional Executive and the Divisional officers of any of their powers under the Rules of the Union in a way which would preclude or prevent the implementation of the outcome of the referendum.  In the present circumstances, that limitation would require the elections for positions on the Divisional Executive to be delayed until the outcome of the referendum was known.

75                  I have already referred to the authorities which support the proposition that a limitation on the express powers contained in the rules of a registered organisation can be implied in those rules (par 53 above).  As the respondents pointed out, there was no provision in Divisional Rule 10 or any other rule which provided for the operation of the Rules of the Union or the Union’s activities to be stayed or suspended during the process of the receipt, or following the receipt, of a petition until the question had been determined and implemented.  There is little, if any, guidance in the Divisional Rules on this issue.

76                  The applicants contended that the implication arose from the consequences of what might otherwise be the result if it was not implied.  It was said that the referendum was the key mechanism by which the membership could exercise some control over the conduct of the Division, and that if the implication did not exist, a referendum could be rendered nugatory by the Divisional Executive taking steps which would have the effect of defeating the referendum before it was held.

77                  It is not sufficient to warrant the implication that the suggested limitation is desirable or useful:  Municipal Officers’ Association of Australia v Lancaster (supra) at 164‑165.  It is necessary to be satisfied that the limitation is dictated by the proper construction of the Divisional Rules or relevant provisions of the Act.

78                  The limitation for which the applicants contended has the potential to interfere in a substantial way with the conduct, management and administration of the Division’s affairs.  No limit was placed by the applicants on the scope of the limitation either as to the time at which it would operate or on the subject‑matter on which it would operate.

79                  For the purposes of answering the question whether the receipt of a petition or request for a referendum requires the cessation of any action of the Division inconsistent with any final answer on the referendum, I have not drawn a distinction between the time at which the petition is received and any subsequent time at which it is determined, after investigation, that the petition has been signed by ten per cent of the financial membership of the Division.  I do not consider a distinction needs to be drawn between these two points of time as I have reached the same conclusion in relation to both points of time.

80                  The applicants submitted that the implication was to be found in the express terms of the Divisional Rules, the provisions of the Act, the Regulations made under the Act and the function and purpose of the Union, because the consequences of its absence would have the result that it would deny the membership a mechanism by which it can exercise control, a check or restraint over conduct and actions of the Divisional Executive between elections.  However, the Division has chosen to have rules which provide that the Divisional Executive is to have the control and management of the affairs of the Division, and I do not consider that the structure adopted by the Division requires the implication for which the applicants contend where the consequence would have the potential to interfere significantly with the administration of the Division’s affairs.

81                  Nor do I consider that the provisions of the Act or the Regulations warrant the implication.  The applicants submitted that if the implication was not to be found in the Divisional Rules, then the rules would contravene s 196(a) and (c) of the Act.  It was submitted that they would contravene s 196(a) as they would fail to make a provision required by s 195(b)(iv), that is they would fail to provide for “the control of committees of the organisation … by the members of the organisation …”.

82                  The Divisional Rules do contain provisions for the control of the Divisional Executive as the members of the Divisional Executive are elected by delegates to the Divisional Conference and the Divisional Conference has power to review decisions of the Divisional Executive.  Special Divisional Conferences can also be convened between biennial meetings if requested by a majority of Divisional Branches or by a petition signed by ten per cent of the financial members of the Division:  Divisional Rule 8(xv).

83                  In Boland v Munro (1980) 48 FLR 66, Evatt and Northrop JJ said at 81:

“The absence of a 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 a 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 reg. 115(1)(d)(v) [the predecessor of s 195(b)(iv)], which rules otherwise would not comply with that regulation.  Each case must depend upon its own particular facts and the particular rules of the organization involved.”

 

When this observation is applied to the present rules under consideration, I am satisfied that the rules, absent the limitation sought to be implied, do not fail to provide for the control of the Divisional Executive by the members of the Division. 

 

84                  I also do not consider that the absence of the limitation for which the applicants contend imposes on members conditions, obligations or restrictions which are oppressive unreasonable or unjust in the sense considered by Deane J in Municipal Officers’ Association v Lancaster (supra) (par 73 above).  None of the meanings given by Deane J is apt to describe the Divisional Rules absent the implied limitation for which the applicants contend.

 

85                  In a given case a proposal in a referendum which has been sought may be pre‑empted or rendered nugatory by the action of the Divisional Executive or officers of the Division.  But that consequence does not negate or deny the democratic nature of the Union and its election procedures if that action is otherwise within power.

86                  Question A6 asks what is the relevant date for determining whether the Divisional Branches that requested the referendum constituted a majority of the financial membership of the Division?  The form of the question should be altered to enquiring as to the date for determining whether the State and Divisional Branches constituted a majority of the membership of the Division as I have found that it is the whole membership of the Divisional Branches which is to be taken into account in considering whether a referendum has been requested by Divisional Branches “whose membership constitutes a majority of the members of the Division”.

87                  The answer is clear – it is the date upon or by which the decisions of all the Divisional Branches which sought the referendum were made.  On the evidence, that date was 12 March 2001 and not any date later than that date.  The best evidence of what was the membership of the Division on that date is the figures which applied as at 28 February 2001.  There were further figures available of the membership of the Union as at 31 March 2001 but those figures are not relevant for the purpose of determining whether the membership of the Divisional Branches which requested the referendum constituted a majority of the membership of the Division.

Does the question proposed in the referendum require an alteration to the National Rules?

88                  The question to be put to a referendum requested by the petition and the resolutions of the four Divisional Branches was in the following terms:

“Should the Divisional Executive of the CFMEU’s Construction and General Division forthwith make all necessary rule changes so that, as from and including the elections due in 2001, the offices of Divisional President, Divisional  Secretary and the two Divisional Assistant Secretaries must all be filled by direct secret ballot of all the financial members of the Division.” 

 

Divisional Rule 9.2 presently provides that the members of the Divisional Executive are to be elected by and from the Divisional Conference.  The referendum question seeks to require the Divisional Executive to alter the Divisional Rules to provide for some, but not all, of the members of the Divisional Executive to be elected by a direct vote of the financial members, while the other members continue to be elected by the delegates at the Divisional Conference.

 

89                  The issue whether the question to be put at the referendum, if answered affirmatively, requires an alteration to the National Rules is not a hypothetical question even though the result of the referendum may be that the question is answered in the negative.  One of the orders sought by the applicants was that Mr Sutton make all necessary arrangements for the holding of the referendum.  If the question asked in the referendum was answered in the affirmative but the subject‑matter of the question could not be achieved without an alteration to the National Rules, the applicants accepted that there was no point in conducting the referendum.  In such circumstances, I would not make the order sought against Mr Sutton.

90                  I do not consider that an affirmative answer to the question proposed in the referendum requires an alteration to the National Rules in order for it to be implemented.

91                  The respondents submitted that if the proposal in the referendum was to be adopted there would have to be an alteration to National Rule 17 which contains provisions relating to the election of the delegates to Divisional Conferences.  In particular, sub‑rule (iii) provides that except in the case of the Mining & Energy Division, elections for Divisional Branch delegates to Divisional Conferences shall be in accordance with detailed provisions which are then set out.  They include sub‑rule (iii)(e) which provides:

“Nominations for the position of Divisional Branch delegates of the Divisional Conference shall be called for by the Divisional Branch Returning Officer by notification in the union journal or in one daily newspaper circulating in the capital city in each Branch on or before the last day of August of every fourth (4th) year commencing as on and from the last day of August 1996.

Provided that such advertisement shall clearly indicate that the Divisional Executive and full time Divisional Officers are elected by and from members of the Divisional Conference, that the members of the Divisional Executive make up the National Conference and that National Officers are made up of the principal officers of each Division.”

 

The respondents submitted that if the referendum was answered in the affirmative, the proviso relating to the contents of the advertisement would have to be removed.

 

92                  But it is not National Rule 17 which specifies how elections for Divisional Executives are to be conducted.  That is found in National Rule 18 which provides that Divisional Executives, composed in accordance with Divisional Rules, shall be elected in accordance with such Divisional Rules either by and from the Divisional Conference or by direct ballot of the financial members of the Division.  If Divisional Rules require a direct ballot of financial members of the Division, then an advertisement published in accordance with the proviso to National Rule 17(iii)(e) would be incorrect.  As National Rule 18 is the provision which provides for elections of the Divisional Executive, the proviso in National Rule 17(iii)(e) must be read subject to it.  The inconsistency can only be resolved by construing the proviso as meaning that, if appropriate, the advertisement shall indicate that the Divisional Executive is elected by members of the Divisional Conference.  This conclusion is consistent with the structure of the rules, both National and Divisional, which commit the determination of the manner in which the election of Divisional officers is to be held to the Divisional Rules.  National Rule 27(ii) provides that each Division will have autonomy to decide matters which do not directly affect the members of another Division, including the election of Divisional officers.  Further, Divisional Rule 8(vii) provides that the election of Divisional Branch delegates to the Divisional Conference shall be held in accordance with National Rule 17.

93                  The respondents then submitted that elections to the Divisional Executive were a two‑stage process which commenced with the elections to the Divisional Conference and that once the process had started it could not be altered in the course of the process.  It was said, therefore, that the election process for offices on the Divisional Executive to be held towards the end of 2001 had commenced by the last day in August 2000.

94                  I do not accept this submission.  Although a member of the Union has to be elected as a Branch delegate to the Divisional Conference in order to be eligible to be elected as a Divisional officer, the rules contain quite separate provisions for the election of delegates to the Divisional Conference and the election of Divisional officers.  As noted earlier, the manner and procedure for the election of delegates to the Divisional Conference is contained in National Rule 17 to which attention is directed by Divisional Rule 8(vii).  National Rule 18 which provides for Divisional Executives and their method of election, either by and from the Divisional Conference or by direct ballot of the financial members of the Division, does not contain provisions relating to the procedure for such elections.  Rather those provisions are found in Divisional Rule 9.

95                  The respondents relied on the definition of “collegiate electoral system” in s 4(1) of the Act in support of the submission that a two‑stage election procedure for the election to offices on the Divisional Executive had commenced in August 2000.  However, that definition defines what a collegiate electoral system is and the relevant National Rules and Divisional Rules to which I have referred to require and describe two separate election procedures to be undertaken.

96                  The respondents submitted that National Rule 18(ii), which provides that every Divisional Executive shall be elected either by and from the Divisional Conference or by direct ballot of the financial members of the Division, required the whole Divisional Executive to be elected by the same method.  I reject that submission.  The method and manner of electing members of the Divisional Executive is to be in accordance with the Divisional Rules:  National Rule 13.  National Rule 18 is no more than an implementation of s 197(1)(a) of the Act which requires the rules of a registered organisation to provide for the election of “the holder of each office” in the organisation by either a direct voting system or a collegiate electoral system that, in the case of a full time office, is a one tier collegiate electoral system.  Accordingly, the purpose of National Rule 18(ii) is to comply with s 197(1)(a) but the National Rules, through National Rule 13(iii), still defer to the Divisional Rules to determine which method is to apply to each office on the Divisional Executive.  Although National Rule 18(ii) refers to, “Every Divisional Executive”, I do not consider that it requires the Divisional Rules to specify either one method or the other to apply to the election of all positions on the Divisional Executive.  Section 197(1)(a) does not dictate that result.

97                  Neither the Divisional Conference, the Divisional Executive or the Construction and General Division have the power to alter the National Rules, but an affirmative answer to the question proposed for the referendum does not require an alteration to the National Rules in order for it to be implemented.

Has the petition been signed by ten per cent of the financial members of the Division?

98                  This question encompasses the questions raised in section D of the parties’ formulation of questions (par 44 above) and the answer to it depends upon the answers to those questions.

99                  This issue arises because the respondents contended that the investigations into the signatures on the petition show that only 5,257 signatories to the petition, whose signature has been verified, can be demonstrated to have signed application forms for membership of the Division and to have been financial members at the relevant time.  The applicants contended that the investigations showed that in addition to those 5,257 signatories, 1,715 signatories can be demonstrated to be shown in the records of the Division as financial members at the relevant time, although application forms for membership of the Division signed by those signatories have not been produced or identified.  Of those 1,715 signatories, 458 signatories have sworn or affirmed affidavits in which they say that they completed and signed application forms for membership of the Division.  The issue which therefore arises for determination is whether I should be satisfied that the 1,715 signatories signed the petition and are properly to be regarded as members of the Union at the time the petition was received by the Divisional Executive.  If I am so satisfied, then I would be satisfied that the petition has been signed by ten per cent of the financial members of the Division. 

100               The signatories (458) who swore or affirmed affidavits verified either that they had signed application forms for membership of the Division or had been treated by the Division as being members, for example by being sent notices of meetings and other publications of the Division.  Some issues arose as to whether some of those signatories had signed application forms for membership of the Division but it is not necessary to resolve those specific issues.  Even if all the 458 signatories are to be classified as members of the Division at the relevant time, their number when added to those shown to have signed application forms (5,257) only reaches 5,715 which is still less than ten per cent of the financial membership of the Division at the relevant time (63,858).  The issue whether no less than ten per cent of the financial members of the Division at the relevant time signed the petition must therefore be determined by answering two questions.  First, whether the 1,715 persons shown by the records of the Division to be financial members are to be considered as financial members, even though application forms for membership of the Division signed by them could not be located or identified in the course of the investigations by the Divisional Executive into the signatories to the petition.  Secondly, whether it can be said that the signature of each signatory was signed by the member named.

101               The respondents submitted that I could not draw an inference that every person who had a membership number had signed a membership application form or that persons whose membership fees were paid by an employer intended to become, or were aware that they were becoming, members of the Union.  The applicants submitted that, on the proper construction of the Rules of the Union, the payment of fees to the Union by a person rendered, without any other step, the person a member of the Union.

102               Although the applicants were critical of the time taken to verify the signatures on the petition, I do not accept their submission that the rules required no more than the checking of the financiality of the signatories.  In order to determine whether the required number of signatories to the petition had been obtained, it was necessary to determine first whether the signatory was a member of the Division and secondly, whether the signatory was financial.  I disregard for the moment whether I should infer from the records of the Division showing that a person was currently financial, that the person had applied for membership of the Division and had been accepted as a member of the Division.  One of the questions the parties agreed I should answer is whether the Divisional Executive has the right or power to determine whether a signature on a petition is the signature of a member and to determine whether the requirements of Divisional Rule 10 have accordingly been met.  The answer is in the affirmative, although it may well be that the determination of whether a signatory is a member will be resolved by reference to the evidence that shows the financial status of that person in the records of the Division.  I will return to this question.

103               In answering the question whether payment of fees, without any other step, renders a person a member of the Union and the question whether the petition has been signed by ten per cent of the financial members of the Division, it is necessary to identify those rules which relate to applications for membership.  The relevant National Rule is rule 7 (par 39 above) and the relevant Divisional Rules and Divisional Branch Rules are rules 4(i), 30 and 32 (pars 40, 42 and 43 above).

104               The applicants submitted that National Rule 7(v)(a) led to the conclusion that the question – whether the payment of fees to the Union by a person rendered, without any further step, the person a member of the Union – should be answered in the affirmative.  But National Rule 7(v)(a) does not go so far as to achieve this result.  It has a very broad reach in that it enables proof of an application for membership of the Union and proof of an intention to become a member to be established even though the required application form has not been properly completed, or completed at all.  Thus, evidence of payment by a person to the Union of the required union dues establishes, according to National Rule 7(v)(a), that the person has applied for membership of the Union and intended to be or become a member of the Union.

105               National Rule 7(v)(a) does not go so far as to provide that by the payment of union dues, a person has, by virtue of that payment, become a member of the Union.  The Rules of the Union recognise that a person applying for membership of the Union must first apply for membership (which is given a broad definition by National Rule 7(v)(a)) and must then be considered for membership by the appropriate Division and accepted as a member by that Division.

106               This second stage of consideration of the application and acceptance as a member is recognised in National Rule 7(i) which provides that any application for membership:

“… shall be made and dealt with in the manner and subject to the conditions including conditions as to any probationary period required by the rules of the Division.  Any application shall be forwarded to the office in the appropriate division which under the rules of that Division deals with such applications.  The decision to accept or reject that application shall be made in accordance with the Rules of that Division by that office.”

 

The second stage is also recognised and provided for in Divisional Rule 4(i) (par 40 above) and Divisional Branch Rule 30 (par 42 above).  In particular, Divisional Branch Rule 30(i)(b) requires applications for membership to be “dealt with” by the Divisional Branch Management Committee or another committee authorised by the Divisional Branch Council and provides for that committee to admit the applicant to membership of the Divisional Branch and the Union if satisfied with the applicant’s bona‑fides and qualifications.  Divisional Branch Rule 30(i)(c) then provides that upon “being admitted to membership of the Divisional Branch”, a member shall “ipso facto” be and be deemed to be “a member of the Construction and General Division, the Divisional Branch, and the Union”.

 

107               Accordingly, disregarding issues which might arise under s 260 of the Act, the payment of fees to the Union by a person not admitted to membership prior to that time does not result in the person thereupon becoming a member of the Union.  That result will be achieved by reference to the further step of consideration of the application by the relevant Divisional entity as set out in Divisional rules such as the Rules of the Construction and General Division to which I have referred and a decision by that entity to admit the person to membership of the Union.

108               I reach the same conclusion whether the fees are paid by the person or by someone else in relation to that person.  The respondents submitted that National Rule 7(v)(a) only applied where union dues were paid by the applicant for membership and did not apply where union dues were paid by an employer in respect of a particular employee.  There was evidence that in respect of a number of persons shown on Divisional Branch records to be financial members of the Division and the Union, the relevant union dues had been paid by an employer of those persons and not by the persons themselves.  It followed, said the respondents, that in respect of these persons there was no evidence that they intended to become members of the Union.  It was said that the rules of an organisation could not deem a person to be a member of an organisation where the person had not done some act to bind themselves to the rules of the organisation.

109               There are a number of answers to this submission.  First the provision in National Rule 7(v)(a) that “For all purposes the payment of union dues in whole or in part shall be taken to be” a method of applying for membership, should be construed as relating to payment by or on behalf of a person.  It is consistent with the rules that payment of union dues may be made on behalf of an applicant for membership or a member: see Divisional Branch Rule 32(c) which enables union fees to be paid by payroll deduction.  Secondly, the rules do not deem a person to be a member of the Union in circumstances where the person has not done an act which binds the person to the Rules of the Union.  It is a matter of evidence whether a person has bound himself or herself to the Rules of the Union.  I consider it appropriate to infer from a payment of union dues to the Union in respect of a person that the payment is made with that person’s approval or authority.  That inference may be rebutted by evidence to the contrary, but it is for any person who alleges that such payment was made without such approval or authority to lead evidence to that effect.  No such evidence was led.

110               There was also evidence from employees in offices of the Western Australian, South Australian and Victorian Divisional Branches as to how they processed the receipt of dues or contributions from members and applicants for membership.  Ms Rohan Golds from the Victorian Divisional office said that if union dues were received from a person who was not shown on the records as a member, the money would be placed in a suspense account, a union number would not be allocated to the person and the person would be asked to complete a membership application form.  When the application form was received, only then would the money be taken out of the suspense account and the union number allocated.  Ms Golds would not accept union dues over the counter without an application for membership form having been completed.  In short, Ms Golds said that it was not possible for a person to be listed on the membership roll in the computer records with a union number without having completed an application form for membership of the Union.

111               Ms Peta Arnold, the office manager of the Union’s Western Australian Branch, said that a union number was allocated to a person at the time an application was received by a person for membership, but that a person’s personal details could not be entered in the computer records without the allocation of a union number. 

112               Ms Valerie Wilson, the office manager of the Construction and General Division at the South Australian Branch, said that if a person applied for membership and did not complete a membership application form, the person was given a suspense number and was sent an application form.  The person did not receive a full membership number until the form was completed and returned.  She said that all persons recorded in the computer system with a membership number, other than a suspense number, had completed a membership application form.

113               Although the financial records of the various branches showed that on occasions union dues were received in respect of the membership of persons from employers of those persons, I am satisfied that to the extent to which the records showed the 1,715 signatories as financial members, those signatories had indicated an intention to be and become a member of the Union.  I infer from the payment of union dues on their behalf that they had either completed application forms for membership of the Union or had assented to being a member of the Union.

114               The applicants referred to Griffin Coal Mining Company Pty Ltd v Construction Forestry Mining and Energy Union [2001] FCA 281 in which an interlocutory injunction was sought against the Union on the basis of an alleged contravention of s 170NC of the Act.  The application was dismissed.  One of the issues before the Court was whether relevant employees were not members of the Union but were, rather, members of a State registered union and therefore not protected persons under s 170MM of the Act.  Apparently, membership fees had been collected by the State registered Union and part of the fees had been remitted to the Union.  It was said that there was no evidence of compliance with the rules of the Mining and Energy Division, Western Australian District Branch of the Union with respect to membership of the persons who had paid those fees.  Lee J held that the onus was on the applicant who alleged that the membership rules had not been complied with to adduce evidence to support the claim that the rules had not been complied with and that it was not for the Union to disprove the claim.  However, his Honour added that National Rule 7(v)(a) recognised substance rather than form in the creation of the binding obligations of membership between the Union and its members and that the rules recognised that payment of a subscription was “sufficient to secure membership” ([85]).

115               This observation by his Honour was obiter and it does not appear that his Honour was referred to any Divisional Rules such as Divisional Branch Rule 30.  For the reasons to which I have referred, I would differ from Lee J if he was holding (leaving aside s 260 of the Act) that Divisional Rule 7(v)(a) by itself has the effect that payment of union dues of itself results in a person being a member of the Union.

116               It follows from my conclusion as to the effect of National Rule 7(v)(a) that the fact that application forms for membership of the Union signed by the 1,715 signatories to the petition either have not, or cannot, be produced is no bar to finding that those signatories are financial members if the evidence otherwise warrants that conclusion.  The matter in respect of which there is no direct evidence is whether each of those 1,715 signatories was in fact admitted to membership of the Divisional Branch and the Union in accordance with Divisional Branch Rule 30(i)(b) and (c).  The question arises whether I should infer from the evidence that the 1,715 signatories were so admitted to membership of the relevant Divisional Branch and the Union.  The question also arises whether there is evidence that the signatures of the 1,715 signatories were signed by the persons opposite whose names the signatures appeared.  No issue arises as to the signatures of the 458 members who swore or affirmed affidavits as they said they had signed the petition.

117               The respondents conceded that the applicants had established that 5,257 financial members had signed the petition as that was the number for whom a membership application form was produced and whose signature was verified.  A substantial number of affidavits (458 in all) were filed on behalf of signatories to the petition in which the signatories explained how they joined the Union or joined unions which have now become part of the Union.  Some of these deponents from Victoria and Western Australia were cross‑examined.  They variously gave evidence that they had paid subscriptions to the Union and its predecessors, attended Union meetings, voted at Union meetings, received Union publications, including newsletters and magazines, and were required to produce Union or “okay” cards on site. The respondents accepted that the 458 people who swore or affirmed affidavits should be included in the number of financial members who had signed the petition as they testified to the fact that they signed the petition.  I am also satisfied by this evidence that for the purposes of Divisional Rule 7(v)(a) the persons who swore or affirmed affidavits have been treated as members and were accordingly entitled to be signatories to the petition for the purposes of determining whether the required number of signatories have been reached.  That leads to a total of 5,715 persons for whom membership application forms were produced and whose signature was verified or who otherwise swore or affirmed an affidavit that they signed the petition. 

118               In relation to the remaining 1,257 signatories (1,715 less 458), the respondents submitted that it was necessary for the applicants to establish that the persons whose names were on the petition were financial members of the Union and that the signatures were the true signatures of the persons beside whose names they appeared.

119               The applicants submitted that the signing of the petition by the persons on the membership roll was the clearest acknowledgment of the contract constituting membership of the Union because the signatories in the declaration paragraph at the top of each page of the petition declared themselves to be financial members of the Division and that they were signing the petition in that capacity.

120               I infer from the evidence of Ms Golds, Ms Arnold and Ms Wilson that the majority of persons on the financial records of the Union would have completed application forms and thereby satisfied Divisional Branch Rule 30(i)(a).  To the extent that an application form may not have been completed by a person appearing on the financial records, I infer that such persons intended to become a member by the fact that they paid membership fees and that they were treated as a member by the Union as they remained on the Union’s financial records.  Accordingly, National Rule 7(v)(a) would apply to deem such a person’s membership application to be valid.  To the extent that a person may not have paid application fees directly to the Union, but those fees were paid on behalf of their employer, I infer that such persons agreed to become members of the Union from the fact that in most cases the “okay” cards and receipts for membership were given or sent to the members, rather than their employees, and that those persons had knowledge that they had become members of the Union and did not contest that membership. Further, although there was no evidence of minutes of meetings of the Divisional Branch Management Committee approving applications for membership, I infer that the applications for membership were approved by Divisional Branch Management Committee pursuant to Divisional Branch Rule 30(i)(b) and the persons on the financial records were admitted to membership pursuant to Divisional Branch Rule 30(i)(c) from the fact that the members remained on the membership roll.

121               The evidence satisfies me that the persons whose names were entered on the financial records of the Union were in fact financial members of the Union.  However, the respondents submitted that the applicants had failed to prove that the persons who signed the petition were the persons whose names appeared in the petition, and that in relation to persons for whom membership application forms were not available, there was no evidence that the signature on the petition was the signature of the person listed on the Union’s records as a financial member.

122               It was the applicants’ case that the petition had been signed by ten per cent of the financial members of the Division.  Accordingly, the burden of proof lay upon the applicants to establish that fact by admissible evidence.  The applicants accepted that they bore the “legal burden” of persuading the Court that each element or requirement of their claim for relief was made out in accordance with the civil standard of proof and that they bore the “evidential burden” of adducing sufficient evidence of each fact in issue to allow the Court to find, if there was nothing more, that the fact was proven:  see Heydon J D, Cross on Evidence, 6^th Aust ed. 2000 pp198‑208 for a discussion of the concepts of legal burden and evidential burden.

123               The applicants relied upon the contents of the petition as evidence that the persons who were identified therein as having affixed their signatures did in fact do so.  They submitted that the petition was admissible as evidence of that fact under s 48 of the Evidence Act 1995 (Cth), which provides for the methods by which a person can adduce evidence of the contents of a document.  The applicants submitted that the petition constituted prima facie evidence that the persons named therein signed it in the space provided.

124               The petition was expressed in the following terms:

“We the undersigned financial members of the Construction and General Division of the CFMEU hereby petition pursuant to Rule 10 of the division’s registered rules that the Construction and General Divisional Executive urgently take a referendum on the following matter:”

 

The question was then set out and below there appeared columns headed “NAME (PLEASE PRINT)”, “Union No.” and “Signature”.  The sheets of the petition signed in Queensland included a column for “Date of Birth”.  Each column was completed.  There was evidence that most of the union numbers written opposite names had been inserted by office staff after a person had written in a name and signed.

 

125               The applicants submitted that if the proponent of an issue produced prima facie evidence of that issue, the evidential burden shifted to the opponent to adduce evidence.  If the proponent’s evidence was believed and the opponent did not adduce evidence, the Court was bound to decide the issue in the proponent’s favour:  Australian Competition and Consumer Commission v Golden Sphere International Inc (1998) 83 FCR 424 at 450‑451.  The applicants submitted that the respondents failed to adduce any evidence suggesting that any of the signatures were not placed on the petition by the persons identified.  The applicants asserted that the evidence in relation to the 1,715 signatories remained as established by the tender of the petition under s 48 of the Evidence Act.  As no contrary evidence was adduced by the respondents, the applicants’ prima facie case should be accepted as evidence of the fact that the signatures on the petition were placed there by the persons identified in respect of each signature.

126               The respondents contended that s 48 of the Evidence Act was not relevant to this issue.  Counsel for the respondents said that the document constituting the petition was not in issue in the proceeding and the respondents did not deny that the document was proof of its contents.  Counsel contended that the only issue was whether the contents of the petition were such that the Court could draw an inference that the signature was the signature of the financial member.  Counsel submitted that the applicants had not satisfied the legal and evidential burdens of proof as they had not provided any proof of a system that would allow the Court to assume that the persons who signed the petition were the persons whose names appeared on the list of members of the Union.  There was evidence that the workers on site were not asked to show their “okay” card or some form of identification before they signed the petition.  Accordingly, without some record of the Union which would allow a comparison of the signatures, it was said I could not draw the inference that this document was signed by the persons named on the document.

127               The tender of the petition, albeit pursuant to s 48(1) of the Evidence Act, is not evidence of the fact that the signature opposite a name was signed by the named person.  Section 48 does not have that consequence.  Section 48 enables proof of the existence of the petition to be established by a number of methods, but it does not have the effect of establishing evidence, prima facie or otherwise, that the signatures on it were in fact signed by the named persons.  The limited effect of s 48 was explained in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309.  Bryson J said at 314‑315:

“Section 51 does not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be, and s 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is.  Section 48(1) is not an enactment to the effect that documents are to be received in evidence on the basis of what appears on their own face.  Section 48(1) prescribes the means of adducing evidence of the contents of documents, and leaves untouched the need to establish that a document is what it purports to be; it does not mean that documents prove themselves, as if judicial notice must be taken of them.

If s 48(1) meant that all that had to be done to establish the authenticity of a document was to tender it, it would dispense with the need to prove the authenticity of a document and put the court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect.  I would regard an enactment to that effect as absurd, and I would look for other constructions; however I do not think that s 48(1) has that effect.”

 

In that case, Bryson J was faced with an issue as to the nature of a document sought to be tendered and whether it was a particular type of bank record.  His Honour’s observations demonstrate that the tender of the petition pursuant to s 48 does not have the result of authenticating the signatures on the petition as having been signed by the persons named opposite the signatures.  The applicants’ submission misconceives the purpose and effect of s 48.

 

128               The applicants submitted that I should be encouraged to draw the inference that the signatures of the 1,715 signatories were signed by the persons whose names appeared opposite the signatures because 458 signatories had filed affidavits verifying that they had signed the petition.  I am not prepared to draw that inference as there was also evidence that persons were asked to sign the petition without being required to produce any identification.  There were also a number of signatures on the petition that were not relied upon by the applicants.  There was no evidence that any system had been adopted or followed of verifying that the persons signing the petition were the persons whose names appeared opposite the signatures.

129               It follows that the applicants have not satisfied me that they have made out their claim that ten per cent of the financial members of the Division have signed the petition.  I am so satisfied as to the 5,257 financial members accepted by the respondents and as to the 458 financial members who filed affidavits.  But I am not satisfied that the balance of 6,972 financial members relied on by the applicants, 1,257 in all, signed the petition.  There is no evidence to that effect, nor is there any sufficient evidence from which I can draw that inference.

130               These reasons lead me to the conclusion that the questions formulated by the parties should be answered as follows:

	Question	Answer
A	On the true construction of Divisional Rule 10:   1.    Is the reference to “members” or “membership” simpliciter a reference to “financial members” for the purpose of:   (a)     determining whether a request by Divisional Branches requires a referendum to be held;   (b)     conducting a referendum of the whole of the membership of the Division?	No     No
	2.     If “members” or “membership” does not mean “financial members” or “financial membership”, does the rule operate in a way contrary to s 196 of the Act?	No
	3.    Does a petition being received by the Divisional Secretary and/or Divisional Executive require the cessation of any action of the Division inconsistent with any final answer on the petition?	No
	4.    Does the answer to A3 depend on whether there has been a determination that the petition is signed by ten per cent of the financial membership of the Division?	No
	5.     If the answer to A3 is no, are the rules such that, as a whole, they fail to make a provision required by the Act or do they contravene s 196 of the Act in any respect?	No
	6.     What is the relevant date for determining whether the Divisional Branches that requested the referendum constituted a majority of the financial membership of the Division?	12 March 2001
B	Request for review:   1.     Does a request for a review of a decision of the Divisional Executive operate to prevent implementation of the Divisional Executive decision until the review is carried out?	No
	2.     If not, are the rules contrary to the Act?	No
C	The Referendum Question:   1.    Is the question, the subject of the request for a referendum, one which requires an alteration to the National Rules?	No
	2.    If yes to C1, is the answer to the referendum question binding on the Union?	Not necessary to answer
	3.    If no to C2, must the referendum still be held?	No
	4.     Is the question, the subject of the request for a referendum, capable of giving rise to an answer which will have the effect of altering the method of election of some of the Divisional Officers otherwise due to be elected at the Divisional Conference in 2001?	No
	5.     If yes to C4, does that answer negate the requirement to hold the referendum so far as it relates to the 2001 election?	Not necessary to answer
D	On the true construction of the rules of the Union insofar as they are binding on members of the Construction and General Division:   1.     Does the payment of fees to the Union by a person render, without any other step, the person a member of the Union?	No
	2.    Does that position alter if the payment of the fees is made by someone other than the person in relation to whom the fees are paid?	No
	3.    Does the Divisional Executive have the right and/or power to determine whether a signature on a petition is the signature of a member and determine whether the requirements of Divisional Rule 10 have accordingly been met?	Yes
	4.    Has the petition been signed by ten per cent of the financial members of the Construction and General Division?	Not necessary to answer

These answers lead me to the conclusion that none of the grounds upon which the applicants obtained the rule to show cause are made out and that the orders made and injunctions granted on 23 March 2001 should be discharged.  I will hear the parties on the form of the orders that should be made.

 

131               I should point out, lest there be a misunderstanding, that the conclusions I have reached do not mean that the issue whether a referendum should be held as a result of the delivery of the petition is at an end.  The issue of the referendum is still before the Divisional Executive.  Mr Roberts’ report was dated 7 June 2001.  There was no evidence before me as to what occurred after the report was delivered to the Divisional Secretary or the Divisional Executive.  The Divisional Executive is still required under Divisional Rule 10(i) to determine whether the petition has been signed by not less than ten per cent of the financial members of the Division.  These reasons for judgment do not preclude or inhibit the Divisional Executive in any way from reaching a determination on whether the petition has been signed by the requisite number of financial members.

 

I certify that the preceding one hundred and thirty‑one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:              15 August 2001

Counsel for the applicant:	H Borenstein and L Armstrong
Solicitor for the applicant:	Slater & Gordon
Counsel for the first, second, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth and seventeenth respondents:	S C Rothman SC and J Pearce
Solicitor for the first, second, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth and seventeenth respondents:	Taylor & Scott
Date of Hearing:	18, 19, 20, 21, 25 June 2001
Date of Final Submissions:	10 July 2001
Date of Judgment:	15 August 2001