FEDERAL COURT OF AUSTRALIA

Rivers, in the Matter of an Application for an Inquiry Relating to an Election for an Office in The Shop Distributive & Allied Employees’ Association, South Australian Branch [2004] FCA 711

INDUSTRIAL LAW – inquiry into election – honorary members – whether honorary members are eligible to stand for office

Workplace Relations Act 1996 (Cth)

Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 applied

Egan v Harradine (1974-75) 6 ALR 507 applied

Bielski v Oliver (1958) 1 FLR 258 applied

Rounsevell v Mitchell (1968) 11 FLR 414

Ransley v Australian Public Service Association (1985) 12 IR 55 applied

Re Mellor; Re Federated Liquor & Allied Industries Employees Union of Australia (1986) 17 IR 402 cited

Re an Application by John Rajan Thomas for an Inquiry into an Election in the South Australian Branch of the Australian Workers’ Union (1992) 35 AILR 46 cited

LYNETTE PATRICIA RIVERS & MAREE DORENE APPELKAMP, IN THE MATTER OF AN INQUIRY RELATING TO AN ELECTION FOR AN OFFICE IN THE SHOP DISTRIBUTE & ALLIED EMPLOYEES’ ASSOCIATION, SOUTH AUSTRALIAN BRANCH

S 101 of 2004

MANSFIELD J

8 JUNE 2004

ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1                     On 18 May 2004 the applicants applied for an inquiry into an election for the office of Assistant Secretary in The Shop Distributive & Allied Employees’ Association, South Australian Branch (the Branch). I shall call the Shop Distributive & Allied Employees’ Association ‘the Organisation’. The application was made under s 200 of Sch 1B of the Workplace Relations Act 1996 (Cth) (the Act). The irregularity which was alleged is the acceptance by the returning officer for the office of Assistant Secretary of the Branch of the nomination of Stephen Robert Campbell (Mr Campbell) when it is claimed that he was not eligible to stand for the office under the Rules of the Branch. The acceptance of a nomination which is not validly made under the rules of an organisation may constitute an irregularity in the conduct of the elections: Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 (the TWU case).

2                     Section 200(1) entitles a member of an organisation to make such an application. I am satisfied that the applicant, Lynette Patricia Rivers, is a member of the Branch, and indeed has been a member of its executive committee for six years. It is unnecessary to make a finding in the circumstances as to the status of the applicant, Maree Dorene Appelkamp, but I note that there does not appear to be any evidence showing her to be a member of the Branch.

3                     On 21 May 2004, having regard to the information then available to me, I was satisfied that there were reasonable grounds for the application. I accordingly fixed 28 May 2004 as the date for conducting the inquiry, and gave directions for service of the relevant material upon Mr Campbell, and upon the National Secretary of the Organisation, as well as other directions appropriate to ensure that all persons who are or may be entitled to appear at the inquiry were notified of it.

4                     At the hearing, apart from counsel for the applicants, counsel appeared for the returning officer and for the National Secretary of the Organisation. Mr Campbell did not appear. It is clear from evidence adduced at the hearing that he was aware of the hearing and that he had chosen not to participate in it.

5                     At the completion of the hearing, I declared that the acceptance by the returning officer of the nomination for election for the office of Assistant Secretary of the Branch lodged by Mr Campbell on 5 May 2004 is invalid, and I declared that an irregularity had occurred in the election for that office of the Branch by the acceptance of the nomination. I directed that the returning officer make arrangements for the uncompleted steps in the election to be completed on the basis of the valid nominations received by no later than 6 July 2004. I otherwise ordered that the inquiry be terminated. These are my reasons for those orders.

THE RULES

6                     The starting point is the Rules of the Organisation. Rule 36 of the Rules of the Organisation provides for there to be branches in each State of Australia, and for the branches to consist of members employed in the area where the branch is formed. Rule 37 gives each branch full autonomy and representation and control of the industrial interests of members of the organisation in that area. Each branch is given power to elect its own officers. Each branch is given power to make and amend or rescind its Rules, provided its Rules do not conflict with the Rules of the Organisation. The relevant Rules of the Branch to which I shall now refer do not in any respect conflict with the Rules of the organisation.

7                     The starting point is the Constitution rule. Rule 2 of the Branch Rules provides:

‘The Union shall consist of an unlimited number of members engaged in any capacity or in connexion with selling, receiving, handling, demonstrating and/or delivery of goods in or for any shop or warehouse, including retail grocers’ carters; also employees in any dispensary and/or employees engaged in the reception, sale, demonstration or delivery of goods other than in or for any shop or warehouse; and employees engaged in or in connexion with the making, preparation, handling, putting-up, reception, sale, demonstration and/or delivery of drugs, galenicals, pharmaceutical goods, cosmetics, perfumes, toilet preparations, medicinal or household chemicals, and of employees engaged as operators, retouchers, printers, and members of any branch of the photographic profession or trade not eligible for membership in any other Association or Union; and, in the State of South Australia, employees engaged in any capacity in restaurants, canteens, cafes, motels, roadhouses and boarding houses; as well as such other persons as have been appointed officers of the Union and admitted as members thereof and such persons who have been appointed life members.

Any member (other than a life member or an officer) of the Union leaving the industry to work in another shall cease to be a member of the same, but may, if he so desires, remain an honorary member, and shall not be eligible to hold office.

Life members may be exempt from paying contributions and levies.’

8                     Rule 7 of the Branch Rules provides for a Committee of Management of the Branch to consist of the Secretary/Treasurer, Assistant Secretary and members elected from a series of electorates provided for in Rule 8A. Rule 9 deals with the nomination and election of officers. Relevantly, it provides for the office of Secretary/Treasurer and Assistant Secretary to be elected every four years by a secret postal ballot amongst all members financial to 31 March in the year in which elections are held. It entitles any financial member as at 31 March in the year in which the election is held to nominate.

9                     Rule 9(j) requires the returning officer to cause to be compiled a roll of voters which comprise the financial members of the Branch at the end of March in the year of the election. Rule 28 provides:

‘The names of all members of the association, together with their addresses and occupations, shall be recorded in a Register of Members.’

10                  The Register of Members provided to the returning officer in response to a request included Mr Campbell as a member of the Branch.

The facts

11                  In accordance with the Rules, the Australian Electoral Commission was engaged to conduct the election pursuant to s 182 of the Act. The returning officer, in consultation with the Secretary of the Branch, fixed a timetable for the election which involved the opening of nominations on 13 April 2004 and the closing of nominations on 5 May 2004. A notice calling for nominations was duly advertised on 13 April 2004. There were nine offices which were the subject of the notice, including the office of Assistant Secretary of the Branch. At the close of nominations on 5 May 2004 there were two nominations for the office of Assistant Secretary: Mr Campbell, and Bernard Finnigan (Mr Finnigan). Mr Campbell’s nomination was dated and signed on 4 May 2004 and received by the returning officer on 5 May 2004. He described his place of employment as ‘Clark Rubber Enfield’.

12                  The returning officer checked that Mr Campbell and Mr Finnigan (and other candidates for other offices) were on the Register of Members as provided to him. He then notified Mr Campbell and Mr Finnigan (and other candidates who were, in his view, eligible to have nominated for the offices for which they had nominated) that he proposed to accept their nominations. He then received some information from Donald Farrell, the Secretary of the Branch, that Mr Campbell was not eligible to have nominated for the office of assistant secretary, or indeed for any office, in the election. He contacted Mr Campbell who confirmed that at material times he was working part-time at Clark Rubber, Enfield.

13                  On the information available to the returning officer, his view as to the eligibility of Mr Campbell to have nominated for the office of Assistant Secretary was entirely appropriate. However, it led to the present application, which challenges the status of Mr Campbell to have nominated for that office.

14                  Membership of the Branch is secured by application in accordance with Rule 4 of the Rules of the Branch. A written application is required to be made, and the Committee of Management then resolves upon accepting or otherwise the applicant for membership. The application for membership includes the disclosure of information as to eligibility for membership having regard to the constitution of the Branch as specified in Rule 2. There is no doubt that Mr Campbell a considerable time ago became a member of the Branch.

15                  Apart from Rule 2, there is provision for resignation or cessation of membership in accordance with Rule 5 of the Rules. Mr Campbell has not resigned from membership or otherwise taken action by which he ceased to remain a member of the Branch. Rule 20 deals with unfinancial members. There is a procedure by which the Committee of Management of the Branch may terminate the membership of an unfinancial member in certain circumstances. Again, Mr Campbell’s membership of the Branch has not been terminated under Rule 20. Despite it now being asserted that he has been ineligible for membership of the Branch since 4 October 1990, he has continued to pay membership contributions as if he were a member of the Branch at all times up to the present time. Finally, I note Rule 21 of the Rules provides for the suspension or expulsion of members by the Committee of Management in certain circumstances. There is no suggestion that Mr Campbell has been suspended or expelled from membership of the Branch under that rule.

16                  It is necessary, however, that Mr Campbell be a financial member of the Branch at 31 March 2004 to be eligible to have nominated for the office of Assistant Secretary (Rule 9(a) of the Rules of the Branch). The evidence discloses that, following his admission to the membership of the Branch, and after some unspecified time, on 4 October 1990 he was engaged in a paid position as an organiser of the Branch. He thereupon ceased working in the retail industry, and worked for the Branch. He continued to work for the Branch until 28 February 2003. He occupied the positions of union organiser, industrial officer, and subsequently senior industrial officer. Employees of the Branch were encouraged to continue to pay membership dues to the Branch as if they were members, notwithstanding their (claimed) ineligibility to be members of the Branch so as to be in a better position to encourage potential members of the Branch to become members of it.

17                  On 1 March 2003, Mr Campbell took up a position on a full-time basis as an industrial officer in the Department of Human Services in the Public Service of South Australia. Subsequently, about March 2004, he took up a full-time position as a Ministerial Adviser to the Honourable Rory McEwan MP, Minister for Agriculture for South Australia. He currently occupies that position.

consideration

18                  Rule 2 of the Rules of the Branch, by reason of its second paragraph, provides for certain circumstances in which a member of the Branch ceases to be a member: see eg per Sweeney and Evatt JJ in Egan v Harradine (1974-75) 6 ALR 507 (Egan v Harradine) at 541. Absent such a paragraph, the fact that a member left the industry to which the coverage or constitutional rule applied would not of itself lead to the cessation of membership. It would otherwise deal with eligibility for membership, but would not specifically address the consequences of the loss of that eligibility, once membership status has been granted.

19                  With one qualification, Rule 2 is now clear. A member (other than a life member or an officer) who leaves the retail industry to work in another industry ceases to be a member. Mr Campbell is neither a life member nor an officer. A person who is not a member, and ipso facto not a financial member, is not entitled to nominate for election to an office in the Branch: Rule 9(a).

20                  In the light of his employment history, and subject to the one qualification to which I shall now refer, Mr Campbell ceased to be a member of the Branch possibly on 4 October 1990, and certainly on 1 March 2003. It is not necessary to determine which of those two alternatives applied. On 4 October 1990, he left the retail industry to work for the Branch. It may be arguable that his working for the Branch did not involve leaving the retail industry ‘to work in another’ industry. He worked for the Branch in fulfilling its functions and purposes in relation to its members in the retail industry. Employment in the Branch does not amount to engagement in or connection with the industry in respect of which coverage is provided under the rules of an organisation: Bielski v Oliver (1958) 1 FLR 258 at 262; Rounsevell v Mitchell (1968) 11 FLR 414 at 429 – 430; Egan v Harradine at 378; Ransley v Australian Public Service Association (1985) 12 IR 55 at 67; the TWU case at 254. However, par 2 of Rule 2 requires not simply leaving the retail industry, but also that leaving the retail industry is to work in another industry. As I did not hear argument that Mr Campbell’s employment by the Branch involved him leaving the retail industry to work in another industry, I prefer not to determine whether he ceased to be a member of the Branch on 4 October 1990.

21                  On any view, on 1 March 2003, clearly (if he was still a member of the Branch having regard to par 2 of Rule 2) Mr Campbell left the retail industry to work in another industry.

22                  The qualification arises from the recognition in par 2 of Rule 2 of the status of honorary member. It is not a status which is otherwise referred to in the Rules of the Branch except in Rule 14(h). The Register of Members, as a matter of practice, includes honorary members and life members but does not identify whether a particular person falls within any particular category of membership.

23                  The Rules do not satisfactorily address the nature of honorary membership. Paragraph 2 of Rule 2 seems to describe in part the status of an honorary member: the person ceases ‘to be a member’ but may, if the person desires, ‘remain an honorary member’. The qualification that such a person shall not be eligible to hold office must relate to honorary members, as it would be redundant if applicable to a person who had ceased to be a member. By explicitly excluding from an honorary member a particular right of membership, namely the right to hold office, par 2 of Rule 2 by inference suggests that other rights of members remain available to honorary members. Those rights include the right to attend general meetings, and to vote (if financial): Rule 14; and to request the convening of a special general meeting, and to propose or second motions and speak at general meetings: Rules 17 and 18. It is not explicit that honorary members are bound by the Rules, although one would expect that to be the case, including the obligation to make payment of membership contributions. Rule 2 par 3 expressly provides for the exemption of life members from the obligation to pay contributions and levies. As there is no comparable provision for honorary members, I construe the Rules to provide that honorary members remain liable to pay contributions and levies.

24                  Rule 14(h) provides:

‘Members of not less than five years standing who have definitely retired from the trade through age or infirmity or other reason or reasons satisfactory to the Committee of Management, and who still desire to retain their connection with the Association may do so on written application addressed to the Secretary/Treasurer, provided that the Committee of Management approve the said application. Provided always that the continuance of the said honorary membership shall be at the discretion of the Committee of Management, who may expunge the names of honorary members from the register whenever and for whatsoever reason they see fit; provided that such honorary members shall not be entitled to vote on any matter before any meeting of the Association.’

25                  This rule relates to honorary membership. It appears to be intended to provide the only avenue to honorary membership. It relates to members of not less than five years standing who have ‘definitely retired’ from ‘the trade’ in the circumstances to which it refers. The circumstances include, but are not limited to, formal retirement. ‘Retirement’ is a curious word to use, having regard to the category of honorary membership to which par 2 of Rule 2 refers, namely persons who have left the retail industry to pursue another career. Under Rule 14(h) the recognition of the status of honorary membership is within the discretion of the Committee of Management. It contemplates not merely retirement from the retail industry by reason of age or ill health, but for ‘other reason or reasons satisfactory’ to the Committee of Management. Rule 14(h) provides the procedure whereby a person may become an honorary member. It also recognises that an honorary member will remain on the Register of Members. It imposes a further restriction on honorary members’ rights, namely that they may not vote at a general meeting.

26                  I consider that, reading the Rules as a whole, the honorary membership to which Rule 2 refers is also the honorary membership to which Rule 14(h) refers. Rule 2 should therefore be read as relating to honorary members who have been recognised as such under Rule 14(h). Otherwise, there would be two categories of honorary membership, with different rights, and different eligibility: the Rule 2 category would become honorary members by expressing the desire to do so, and the Rule 14(h) category would only become honorary members by their acceptance by the Commonwealth of Management after following the procedure prescribed. That construction of the Rules also reflects the fact that the eligibility rule does not per se entitle a person in the retail industry to membership of the Branch. An eligible person must apply for, and be accepted into, membership in accordance with Rule 4.

27                  There is no direct evidence that Mr Campbell was accepted as an honorary member in accordance with Rule 14(h) after ceasing to be engaged in the retail industry. I infer, however, that he was accepted as an honorary member by the Committee of Management. His name is on the Register of Members. He has continued to pay the membership contributions, and the Branch has continued to accept them.

28                  As an honorary member, he was not entitled to nominate for the office of Assistant Secretary, or to hold that office.

29                  It is necessary to determine whether, by reason of his casual employment at Clark Rubber, Enfield referred to above, he had somehow resumed the status of a full member of the Branch so as to be eligible to nominate for election to that office either at 31 March 2004 (see Rule 9(a)) or at 5 May 2004 when his nomination was received by the Returning Officer.

30                  In my judgment, there are two reasons why his casual employment did not have the effect of restoring to him the full membership rights of a financial member of the Branch. They are that:

(a)                on the construction of the Rules of the Branch, the resumption of engagement in the retail industry by an honorary member did not of itself operate to restore full membership status to him, so at the times referred to he was still an honorary member ineligible to nominate for or to hold the office of Assistant Secretary of the Branch, and

(b)               on the evidence, in any event, I conclude that he was not bona fide engaged in the retail industry so as to have enlivened full membership status even if that status could automatically be resumed in certain circumstances.

31                  As to the first of those reasons, I observe that Rules 4 and 14(h) prescribe the means by which a person may become a member or an honorary member. Resolutions of the Committee of Management are required in each instance. Although the Register of Members under Rule 28 does not in fact distinguish between normal or full members, or honorary members, or life members, I assume the records of the Branch enable the correct identification of the status of those categories of members. It is necessary that they do so. The Branch must have such records to determine the financial status of a member, including to determine the indebtedness of a member to the Branch and to terminate the membership of unfinancial members under Rule 20. It must have those records to know who may vote at meetings of the Branch, and to know who is eligible to hold office. Under Rule 9(l), the Returning Officer for an election must know who are the financial members and who is entitled to vote at an election. Indeed, the records should be capable of showing who is eligible to nominate for office in the Branch. Such information could only be properly maintained if the Branch had the means of recognising any change in the status of an honorary member. Although there is no Rule which explicitly requires an honorary member who has returned to the retail industry to make an application to have the change of status recognised, I think it is necessary to give efficacy to the Rules to construe Rule 4 as applying in the circumstances. It applies to a person ‘wishing to become a member’ of the Branch. The expression quoted is wide enough to apply to an honorary member who wishes to become a member of the Branch entitled to resume full membership rights.

32                  Mr Campbell did not, as I have found the Rules of the Branch require, make such an application once he had apparently resumed engagement in the retail industry.

33                  The TWU case concerned a condition of eligibility for election to office in that organisation that the person be employed in the transport industry. French J construed that eligibility requirement so as to entitle persons who were at the time actually working in the transport industry and those who have a continuing involvement in the transport industry to be eligible to nominate for office. His Honour however found one person ineligible for election. He said at 254:

‘Having regard to the period that has elapsed since he was last engaged in the transport industry, Handmer’s only prospect for complying with the requirement of r 22 is to show that he was employed in the industry on 26 November, which means in this context that he had a contract of employment in the industry at that time. I am inclined to think that even that would not be enough if the work done is so trivial and transient that it could not be said to constitute in any serious sense, employment in the industry. The present case which evidences desultory activity unaccompanied by any commitment to work in the industry longer than the minimum regarded as necessary to achieve eligibility, in my opinion would fall below the lower threshold of commitment which separates the trivial from the serious engagement necessary for eligibility. That is not to say of course that a person whose motive in gaining employment is to qualify for election will not be eligible. …’

34                  Mr Campbell has worked for seven Saturdays for three hours at a time at Clark Rubber, Enfield. His work commenced on 14 March 2004, and continued for four Saturdays running over the nomination eligibility date of 31 March 2004. He then did not work for one week. There may be many reasons for that, and I draw no adverse inference from it. He worked for a further three Saturdays, up to 2 May 2004 just before his nomination was lodged. He has not worked since for Clark Rubber, Enfield. That is now a period of three

weeks. Mr Campbell has not sought to explain why he has apparently stopped working there. The elapse of time is sufficient to conclude that he has decided to stop that work. He has another full time job. As French J recognised in the TWU case, the fact that the motive for working is to qualify for election is not inappropriate. However, I share his Honour’s view that it is necessary for Mr Campbell’s work at Clark Rubber, Enfield to have involved the commitment to returning to the retail industry, albeit on a part-time basis, before he resumed eligibility as a member (as distinct from an honorary member) of the Branch and so be eligible to hold office.

35                  Having regard to Mr Campbell’s present full-time employment, and to the coincidence of his work at Clark Rubber, Enfield with 31 March 2004 and 5 May 2004, to the hours he worked there, and to the fact that he has apparently ceased working there, I have reached the view that the work he undertook at Clark Rubber, Enfield does not demonstrate a level of commitment to work in the retail industry as to requalify him for full membership of the Branch. Rather, in my view, it falls within the description of trivial and desultory activity below the minimum necessary to achieve eligibility for membership of the Branch, other than the honorary membership which I have found he enjoys.

36                  In Re Mellor; Re Federated Liquor & Allied Industries Employees Union of Australia (1986) 17 IR 402, Gray J discussed what form of orders is appropriate in the case of a finding of an irregularity in the conduct of an election by the erroneous acceptance of a nomination. For the reasons to which his Honour referred at 404, I think the appropriate orders are simply for the exclusion of Mr Campbell’s nomination from the eligible candidates (in this case, there is only one other candidate). To do otherwise would be to disentitle Mr Finnigan from the conduct of the election to office for which he nominated. See also the consideration of that question by Keely ACJ in Re an Application by John Rajan Thomas for an Inquiry into an Election in the South Australian Branch of the Australian Workers’ Union (1992) 35 AILR 46.

37                  For those reasons, the Court made the orders referred to in [5] above.

Associate:

Dated: 4 June 2004