FEDERAL COURT OF AUSTRALIA
Cholosznecki, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452
INDUSTRIAL LAW – registered organisation –election – nomination – whether valid – whether financial member attached to divisional branch for required period – member attached to one divisional branch – subsequent membership application to another divisional branch – continued to pay dues to, and to act as member of committee of management of first divisional branch – treated as member attached to, and also paid dues to, second divisional branch – rules prohibited attachment to more than one divisional branch – whether transferred from one divisional branch to another – whether second application for membership brought about implied surrender of first membership – principle of surrender by implication – whether inconsistent with express provisions of rules as to resignation of membership.
WORD AND PHRASES – ‘be transferred’
Workplace Relations Act 1996 (Cth) Sch 1B ss 5(d), 6, 141(1)(b), 142(1)(c), 143(1)(a), 174, 189(3), 200(1), 201, 206(4), 325(1), 329(1)
National CEPU Rules rr 2, 4, 5, 6.1, 23
Rules of the CEPU Communications Division rr 32, 44, 46, 50, 61, 66(a)
Egan v Maher (No 2) (1978) 35 FLR 252
Iron Ship Coating Co Ltd v Blunt (1868) 3 LR CP 484
Mellor v Horn (1988) 25 IR 157
Johnson v Beitseen (1988) 41 IR 395
Sherrif v Townsend (1980) 48 FLR 20
Price v Hodgson (1992) 41 IR 178
Hassett v Harding (1976) 27 FLR 457
IN THE MATTER OF AN APPLICATION BY GAIL CHOLOSZNECKI FOR AN INQUIRY RELATING TO AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION (CEPU)
VID 1213 of 2005
GRAY J
28 APRIL 2006
MELBOURNE
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
VICTORIA DISTRICT REGISTRY |
VID 1213 of 2005 |
|
BETWEEN: |
IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION (CEPU)
|
|
AND: |
GAIL CHOLOSZNECKI APPLICANT
|
|
GRAY J |
|
|
DATE OF ORDER: |
28 APRIL 2006 |
|
WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application for an inquiry be dismissed.
2. A certificate be granted, pursuant to s 325(1) of Sch 1B to the Workplace Relations
Act 1996 (Cth), that the applicant acted reasonably in applying.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
VICTORIA DISTRICT REGISTRY |
VID 1213 of 2005 |
|
BETWEEN: |
|
|
AND: |
GAIL CHOLOSZNECKI APPLICANT
|
|
JUDGE: |
GRAY J |
|
DATE: |
28 APRIL 2006 |
|
PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
The nature of the proceeding
1 This case is concerned with the validity of the nomination of Valerie Ann Butler for two offices in elections conducted within an organisation registered pursuant to the Workplace Relations Act 1996 (Cth) (‘the WR Act’). In order for her nominations to be valid, pursuant to the rules of the organisation, Ms Butler had to be a financial member attached to a particular divisional branch of the organisation, and had to have had that status for at least 12 months, at the date of closing of nominations. The question whether Ms Butler was a member attached to the relevant divisional branch is unusually complicated, because of difficulties of construction of the relevant rules, the failure of the rules to make provision for some matters, and failure to observe the rules in some respects.
2 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (‘the Union’) is an organisation, registered pursuant to the WR Act. The provisions of the WR Act governing the registration and conduct of the affairs of registered organisations are now found in Sch 1B of the WR Act. Notwithstanding that those provisions are found in a schedule, they are designated as sections and subsections, as if they were provisions found in the body of the WR Act itself. Accordingly, a reference in these reasons for judgment to a section, accompanied by a number, is to be taken to be a reference to a provision in Sch 1B of the WR Act, unless the contrary is indicated, in order to avoid the necessity to make constant reference to the fact that the provisions are found in Sch 1B.
3 By written decision dated 21 March 2005, pursuant to s 189(3), a deputy industrial registrar recorded the fact that the Union had lodged in the Industrial Registry prescribed information in relation to the conduct of an election. Attached to the decision was a list of the offices within the Union for which prescribed information in relation to the conduct of elections had been lodged. Among the offices listed were three branch committee of management members from the Lines and General Divisional Section of the Victorian Postal and Telecommunications Branch (‘the P&T Branch’), and one divisional executive member from the Lines and General Divisional Section of the P&T Branch. The deputy industrial registrar’s decision pronounced that he was satisfied that an election for all the offices listed in the attachment was required to be held under the rules of the Union, and announced that he was making arrangements for the conduct of the election by the Australian Electoral Commission, in accordance with s 189(3).
4 The elections were conducted by the Australian Electoral Commission. In Victoria, the returning officer was John Pepper. After the returning officer had called for nominations, he received two nomination forms in respect of Valerie Ann Butler, each signed by two financial members of the Union attached to the Lines and General Divisional Section of the P&T Branch. In one form, Ms Butler was nominated for the office of branch committee of management member. In the other, she was nominated for the office of divisional executive member. The returning officer received both forms on 2 May 2005, the closing date for nominations.
5 The applicant in the present proceeding, Ms Gail Cholosznecki, objected to the nominations of Ms Butler. The returning officer made inquiries of Ms Butler, and of the branch secretaries of the P&T Branch and Victorian Telecommunications and Services Branch (‘the T&S Branch’). After considering responses to those inquiries, the returning officer decided to accept the nominations of Ms Butler. Ballots were conducted in relation to a number of offices, from 1 June 2005 to 30 June 2005. On 5 July 2005, the returning officer declared the results of the ballots. He declared Ms Butler elected to both of the offices for which she had been nominated. In the ballot for three branch committee of management members, Ms Butler’s vote tally was the third highest of five candidates. In the ballot for divisional executive member, Ms Butler defeated Ms Cholosznecki, the only other candidate, by 49 votes, 183 to 134. Those who were successful in the elections took office on 1 August 2005, and are due to hold office until 31 July 2007.
6 On 30 September 2005, Ms Cholosznecki applied to the Court, pursuant to s 200(1), for an inquiry into the elections for the offices to which Ms Butler was elected, alleging that there had been an irregularity in relation to each election, because Ms Butler was not eligible to be nominated. There is no dispute that Ms Cholosznecki is a member of the union, and therefore has standing to apply pursuant to s 200(1). On 18 October 2005, in accordance with s 201, being satisfied that there were reasonable grounds for the application, I fixed a time and place for the conduct of the inquiry, initially for directions only. I directed service of the application on a number of parties, including the two unsuccessful candidates for the office of branch committee of management member, the Union, the Communications Division of the Union, the P&T Branch, and the T&S Branch. At the first directions hearing, on 24 October 2005, there were appearances on behalf of Ms Cholosznecki, Ms Butler, the Australian Electoral Commission and the returning officer, and the Union. An affidavit of service has now been filed, establishing that service on the other parties was effected in accordance with my order. At the hearing of the inquiry, those representing the Australian Electoral Commission and the returning officer, and the Union, sought and were granted leave to withdraw from the hearing. Leave to withdraw was granted to the representative of the Union, despite my misgivings about being deprived of any assistance the Union might have been able to give me with respect to the construction of its rules. The issues were therefore argued between counsel for Ms Cholosznecki and counsel for Ms Butler.
The Union’s rules
7 Rule 4 of the Union’s national rules contains definitions of a number of terms, which are applicable ‘unless the contrary intention appears’. The relevant definitions, for present purposes, are:
‘4.1 Appropriate Division
Appropriate division shall be the division to which a member has been attached.
...
4.3 Division
Division shall mean a division of the Union established under the rules
of the Union. There shall be an Electrical Division, a Plumbing
Division and a Communications Division
...
4.5 Divisional Group
The Postal and Telecommunications branches of the Communications
Division and the Telecommunications and Services branches of the
Communications Division shall each comprise a Divisional Group
within that Division.
4.6 Divisional Section
The Lines and General, Postal, Telecommunications and Operator
divisions of the Communications Division shall each constitute a
Divisional Section within that Division.
4.7 Divisional Branch
Divisional Branch shall mean a Branch of a division of the Union
established in accordance with the rules of the Union.’
8 Rule 5 of the Union’s national rules provides relevantly as follows:
‘5 – MEMBERSHIP OF THE UNION
5.1 Membership of the Union
5.1.1 The Union shall consist of all persons duly admitted as
members in accordance with these rules.
5.1.2 A member shall be attached to the division of the Union
covering the industry or employment of that member.
5.1.3 A member shall only be in one division and one divisional
branch. Each member shall be notified of the division and
divisional branch to which he/she has been attached.
5.1.4 A member attached to a division and divisional branch remains
at all times a member of the Union. Upon resignation from a
division the member shall be deemed to have resigned from the
Union.
5.1.5 A member may be transferred to another division, divisional
branch or divisional sub branch without loss of continuity of
membership in accordance with the rules of the appropriate
division.
5.1.6 Any dispute as to which division a person should belong shall
be determined by the National Executive Officers. Before any dispute is referred to the National Executive Officers the
divisions in dispute must try and resolve the matter between
them.
5.2 Admission of New Members
5.2.1 A candidate for membership shall make application to the
Divisional Branch of the Union in the State/Territory in which
that person is employed in accordance with the rules of the
appropriate division.
5.2.2 When applying for membership an applicant shall be informed
of the financial obligations arising from membership and the
circumstances and manner in which a member may resign from
the organisation. This information shall be conveyed in
writing.
5.2.3 An application will be dealt with in accordance with the rules
of the appropriate division.
5.2.4 The format of the application form shall be determined by the
appropriate division.
5.3 Fees and Contributions
Fees and contributions shall be paid in accordance with the rules of
the appropriate division.
...
5.5 Clearances
Clearances shall be granted in accordance with the rules of the
appropriate division.
5.6 Resignation of Members
Members shall resign in accordance with the rules of the appropriate
division.’
9 The Union is the result of the amalgamation of a number of former registered organisations. By r 6.1.1 of its national rules, the Union is to have divisions. Rule 6.1.2 refers to three divisions, each apparently corresponding with a former registered organisation, which became part of the Union. The third of these, the Communications Division, ‘shall also be known as the Communication Workers Union Division.’ Rule 6.1.3 provides that each member shall be attached to a division or divisional group as the case may be. Rule 6.1.4 designates the provisions of r 2, the rule providing for eligibility for membership of the Union, corresponding with each of the three divisions.
10 Rule 23.1 of the Union’s national rules requires that each division or divisional group shall, in accordance with the rules of the division, keep a membership register.
11 The Communications Division of the Union has its own rules. Rule 32 of those rules provides, so far as relevant:
‘32 – CONDITIONS OF MEMBERSHIP
(a) Any person qualified for membership shall pay to the Branch Secretary or other authorised person the prescribed entrance fee and contribution, shall be informed in writing at the time of his/her application of the financial obligations arising from membership and
the circumstances and the manner in which a member may resign from
the Union and shall receive a ticket entitling such person during its
currency, so long as he/she remains loyal to the Rules and Resolutions
of the Union, to all rights and privileges of membership and rendering
such person amenable to the Rules and Resolutions of the Union.
Where a qualified person has applied for membership, the person shall
be a member notwithstanding his/her failure to pay the prescribed
entrance fee and/or contribution but he/she shall remain liable to pay
the same.
(b) Any qualified person applying for membership, except in the case of
applicants who produce a clearance from a bona fide industrial
organisation, shall be required to pay an entrance fee of twenty dollars ($20.00); provided that the Branch Committee of Management
shall have power to waive or vary the conditions relating to the entrance fee where deemed necessary.
(c) Any qualified person who has resigned from the Union may be readmitted to membership by a resolution of the Committee of Management on payment of an entrance fee not exceeding the sum of
twenty dollars ($20.00); provided that the Committee of Management
shall have power in such cases to waive or vary the conditions relating
to entrance fee where deemed necessary.
(d) A member of the Union may resign from membership by written notice
addressed and delivered to the Secretary of the Branch to which the
member is attached.
A notice of resignation from membership shall take effect:
(1) Where the member ceases to be eligible for membership of the
Union:
(i) on the day on which the notice is received by the Union;
or
(ii) on the day specified in the notice, which is a day not
earlier than the day when the member ceases to be
eligible for membership; whichever is later; or
(2) In any other case:
(i) at the end of 2 weeks after the notice is received by the
Union; or
(ii) on the day specified in the notice; whichever is later.
Any dues payable but not paid by a former member of the Union in
relation to a period before the member’s resignation from the Union
took effect, may be sued for and recovered in the name of the Union
in a Court of competent jurisdiction, as a debt due to the Union.
A notice delivered to the Branch Secretary shall be taken to have been
received by the Union when it was delivered.
A notice of resignation that has been received by the Union is not
invalid because it was not addressed and delivered in accordance with
the provisions of this sub-rule.
A resignation from membership of the Union is valid even if it is not
effected in accordance with this sub-rule if the member is informed in
writing by or on behalf of the Union that the resignation has been
accepted.’
12 It should be noted that the provisions of r 32(d) appear to have been designed to reflect the provisions, now found in s 174, in which Parliament has specified the content of the rules of registered organisations as to resignation of membership, for which the rules of an organisation are required by s 141(1)(b)(viii) to provide.
13 Rule 44 of the rules of the Communications Division provides relevantly as follows:
‘(a) The Division shall consist of the following Branches:
(i) the Victorian Postal and Telecommunications Branch;
(ii) the Victorian Telecommunications and Services Branch’.
14 Rule 46(a) of the Communications Division rules provides that the Communications Division is to have ‘four Divisional Sections and each member other than a member attached to the TOA Branch shall be allocated to a Divisional Section.’ The TOA Branch corresponds with the former Telecommunications Officers Association, and is not relevant for present purposes. The divisional sections are the Postal Divisional Section, the Technical Divisional Section, the Lines and General Divisional Section, and the Operator Divisional Section. Rule 46(b) provides:
‘Members allocated to the Postal Divisional Section and Lines and General Divisional Section shall constitute the Postal and Telecommunications Branch covering the State or Territory in which they are employed. Members allocated to the Technical Divisional Section and the Operator Divisional Section shall constitute the Telecommunications and Services Branch in the State or Territory in which they are employed.’
15 Rule 46(c) provides relevantly:
‘Industrial officers and employees of the Division shall:
(i) in the case of persons who are members of the Division before
becoming an Industrial Officer or employee remain in the Divisional
Section they were allocated to before becoming an Industrial Officer
or employee’.
16 Rule 50 of the Communications Division rules provides:
‘50 – REGISTER OF MEMBERS
(a) Each Branch Secretary shall keep a register of the names and
addresses of all members of the Branch, including membership
of the particular Divisional Section to which they belong, which
shall be open for inspection by an Industrial Registrar, or a person
authorized by an Industrial Registrar, between the hours of 9.00am
and 5.00pm Monday to Friday at the Branch Office of the Division
and shall supply a copy of the same to the Divisional Secretary
and/or Divisional President when required.
(b) In conformity with the Workplace Relations Act 1996 each Branch
Secretary shall:
(i) enter in the register the name and postal address of each
person who becomes a member, within 28 days after the person
becomes a member.
(ii) remove from the register the name and postal address of each
person who ceases to be a member within 28 days after the
person ceases to be a member; and
(iii) enter in the register any change in the particulars shown on
the register, within 28 days after the matter necessitating the
change become known to the Division.
(c) Within 28 days of the end of the financial year pursuant to Rule 29
each Branch Secretary shall forward to the Divisional Secretary a
statement to the effect that during the preceding year the Register of
Members was maintained in accordance with this Rule.’
17 Rule 61 of the Communications Division rules requires the Secretary of each branch within the Communications Division, within 28 days of 31 March in each year, to notify the Divisional Secretary in writing of the number of members in each divisional section within the branch books as at that date.
18 Rule 66(a) of the Communications Division rules makes a number of provisions about eligibility to be a candidate for office within a divisional branch of the Communications Division. Those provisions include:
‘No person shall be eligible to be nominated for or elected to any office or position unless such person shall have been a continuously financial member of the Branch for a period of not less than 12 months immediately prior to the closing date of nominations.’
Ms Butler’s membership history
19 From 16 December 1994 until 2 September 2005, Ms Butler was an employee of Telstra Corporation Ltd at its call centre at Burwood in Victoria. In July 1999, she submitted an application for membership of the Union to the T&S Branch. She was accepted as a member and attached to the T&S Branch. Within the T&S Branch, she was allocated to the Technical Divisional Section. Thereafter, until March 2005, Ms Butler paid her dues to the T&S Branch. On 8 July 2003, she was elected as a branch committee of management member of the T&S Branch, and she continued to attend meetings of the branch committee of management of the T&S Branch until March 2005.
20 Ms Butler submitted a further application for membership, dated 18 July 2003, to the P&T Branch on or about that date. In response, she received a letter dated 31 July 2003 from the then Victorian Branch Secretary of the P&T Branch. The letter, so far as relevant, informed her as follows:
‘Your membership application has been received in this office, and in accordance with the registered rules, you were accepted as a member from that day. May I extend to you a very warm welcome.
So that you derive the benefits and privileges of membership, it is most important that you remain financial at all times.
Financial membership entitles you to:
...
I wish you a long and happy association with this union, and assure you of our co-operation at all times.’
21 The branch committee of management of the P&T Branch met on 12 August 2003. The agenda for that meeting contained the following item:
‘NEW MEMBERS:
POSTAL 33
DAVIDS 10
POST LOGISTICS 1
TELSTRA 1
TOTAL 45’
22 Counsel for Ms Butler informed me that Ms Butler was the single Telstra employee to which the agenda item referred. The minutes of the branch committee of management meeting record the passage of a resolution in the following terms:
‘That the Secretary be authorised to admit 45 new members without them being required to pay a joining fee.’
23 According to an affidavit of Ms Butler, filed during the hearing of the proceeding, the letter of 31 July 2003 was accompanied by a membership card. The card was not in evidence, but was said to have been in terms that indicated that Ms Butler was a member of the Union attached to the P&T Branch. Within the records of the P&T Branch, she was shown as having been allocated to the Lines and General Divisional Section. Ms Butler then continued to pay dues to the P&T Branch. Her name appeared in its register of members and she was treated by the P&T Branch as being a member of the Union attached to the P&T Branch. Shortly after the events described in [20]-[22], Ms Butler was appointed a part-time industrial officer of the P&T Branch. It is unclear whether anyone in the administration of the P&T Branch was aware that Ms Butler’s name continued to appear on the register of members of the T&S Branch, or that she continued to pay dues to the T&S Branch, in addition to those she paid to the P&T Branch, and to attend meetings of the branch committee of management of the T&S Branch. Ms Butler herself was unaware of r 5.1.3 of the national rules of the Union until March 2005.
24 By letter dated 20 March 2005, addressed to the Branch Secretary of the T&S Branch, Ms Butler informed the Branch Secretary in the following terms:
‘I wish to resign my membership of the CEPU (Victorian T&S Branch) effective immediately.
Please cease direct debit payments from my bank account at the earliest possible convenience.
Thankyou for your prompt attention to this matter.’
The issues to be determined
25 Ms Cholosznecki’s case was based on the assumption that, because Ms Butler was attached to the T&S Branch from the time she became a member of the Union, she could not become attached to the P&T Branch otherwise than in accordance with the rules. Rule 5.1.3 of the national rules expressly prohibited her from being attached to more than one divisional branch. The only provision in the rules under which Ms Butler could have become attached to the P&T Branch was the provision in r 5.1.5, allowing her to be transferred to another divisional branch, and this had not occurred. Accordingly, Ms Cholosznecki contended that Ms Butler had not been attached to the P&T Branch for the requisite period of 12 months prior to the close of nominations, and was consequently ineligible to be nominated for the positions to which she was purportedly elected.
26 Counsel for Ms Butler drew attention to the authorities which established the existence of the principle known as the doctrine of incompatible offices. Ultimately, the argument on behalf of Ms Butler was based on the principle of surrender by implication, which is said to underlie the doctrine of incompatible offices. On this view, if Ms Butler became attached to the P&T Branch, she impliedly surrendered her attachment to the T&S Branch, because r 5.1.3 expressly made it clear that she could not retain both, and the accession to the second nullified the first. This leaves open the question whether Ms Butler did validly become attached to the P&T Branch. It may be that the doctrine of implied surrender applies even where there is an invalid attempt to take up a new position that is incompatible with a position already held. If that principle were to be applied to the facts of the present case, the result would be that Ms Butler would be attached to neither the P&T Branch nor the T&S Branch, unless she became attached validly to the P&T Branch. Accordingly, it was necessary for counsel for Ms Butler to contend that she had been transferred to the P&T Branch, in accordance with r 5.1.5, or that even in the absence of such a transfer, by her own actions she had become attached to the P&T Branch, without the necessity for a formal transfer.
27 Both of the relevant parties accepted, and it seems to be clear beyond argument, that the effect of r 5.1.3 was to prevent Ms Butler from being attached to more than one divisional branch at the same time. It was also accepted that her attachment to the T&S Branch, from the time she joined the Union in 1999, was valid. It therefore became necessary to determine whether Ms Butler was transferred from the T&S Branch to the P&T Branch, in accordance with r 5.1.5. One difficulty relating to this issue is the absence of any rules of the ‘appropriate division’, ie the Communications Division, providing for transfer from one divisional branch to another, and the absence of evidence as to any recognised process for such transfer. There is a question whether Ms Butler’s unilateral actions, or the actions of the P&T Branch in accepting her application of 18 July 2003, could result in her being transferred for the purposes of r 5.1.5. There is then a question whether, in any event, r 5.1.5 is to be read as a provision exhaustive of the circumstances in which a member may cease to be attached to one divisional branch and become attached to another. In particular, there is a question whether this can be effected by unilateral action of the member, or by acceptance of such action by the recipient divisional branch. If such a process of unattachment and reattachment be possible, there is a question whether it occurred in the present case.
28 Underlying a number of these issues are questions as to the nature and content of the principle of implied surrender. It is to those questions that I turn first.
The principle of surrender by implication
29 The principle known as the doctrine of incompatible offices was recognised by the Full Court in Egan v Maher (No 2) (1978) 35 FLR 252 as applicable in circumstances in which a person attempted to hold two elected offices in a registered organisation. All three judges of the Full Court, Smithers J at 256, Evatt J at 260 (agreeing with Northrop J) and Northrop J at 262-263 accepted the existence of the doctrine. The majority (Evatt and Northrop JJ) held that the doctrine even applied to a situation in which the holder of one office attempted to assume a second, incompatible, office, but the attempt was unsuccessful because the second office was not vacant. Smithers J disagreed on this point. Northrop J, in the passage to which I have referred, relied on the Iron Ship Coating Co Ltd v Blunt (1868) 3 LR CP 484 as authority for the existence of the doctrine. The doctrine has since been applied in Mellor v Horn (1988) 25 IR 157 at 159-161, and in Johnson v Beitseen (1988) 41 IR 395 at 412-413. It has been mentioned in Sherrif v Townsend (1980) 48 FLR 20 at 54 by Northrop J (dissenting on the relevant issue), and in Price v Hodgson (1992) 41 IR 178 at 179.
30 In the Iron Ship case at 488, Willes J, one of the three judges constituting the Court of Common Pleas, quoted from earlier authority in the following terms:
‘“the grant of an office to one who has another office incompatible, is not good; for, the first office will thereby be void. As, if a forester, by patent for life be made justice in eyre of the same forest pro hâc vice, the office of forester will be void; for, it is incompatible, being subject to correction by the justices in eyre.” Several other illustrations are there put: amongst them, that “the chief justice of C.B. cannot be prothonotary or clerk of the papers in the same Court.” This is founded upon a principle which runs through the whole of the law, and is applicable to surrenders by implication.’
31 I take this statement to mean that the doctrine of incompatible offices is simply an illustration of a wider principle, whereby the occupant of any position, whether an ‘office’ or not, who assumes a second position, incompatible with the first, relinquishes the first position. There appears to be no reason why this broader principle should not apply to membership of a registered organisation or, as in the present case, to attachment of a member to a division or divisional branch within a registered organisation. That being so, the central assumption of Ms Cholosznecki’s case, that Ms Butler could not become attached to the P&T Branch, because of her continued membership of the T&S Branch, is demonstrated to be false. Rather, if Ms Butler became attached to the P&T Branch, in the absence of anything in the rules of the Union to the contrary, her membership of the T&S Branch ceased.
32 It is apparent from the authorities that the relinquishment of the first position does not depend upon the existence of a subjective intention to relinquish it. The only intention required is the intention to assume the second position. Although the doctrine of incompatible offices has sometimes been put in terms of implied resignation from the first office, it is clear that the first office is lost by operation of law, not by any determination on the part of the person concerned to lose it. In Egan, the national assistant secretary of a registered organisation allowed himself to be appointed as the national secretary, when there was thought to be a vacancy in the latter office. The appointee deliberately refrained from resigning as national assistant secretary, because he was aware that the resolution declaring the office of national secretary vacant might not be valid, as turned out to be the case. He was consciously attempting to hold both offices. Because the Court found the offices to be incompatible, in the sense that the same person could not hold the two at once, he was held to have abandoned the office of national assistant secretary. At 262-263, Northrop J emphasised the proposition that the doctrine applies by operation of law, by comparing it to the doctrine of election between inconsistent rights.
33 The proposition that the implication in the principle of surrender by implication arises from the operation of law, rather than as a matter of fact from the nature of the conduct, or as a matter of presumed intention, of the person concerned, is important in the understanding of the relationship between the principle and any express provisions. Of course, any implication must be subject to what is provided expressly. Determining whether the principle of surrender by implication is ousted by express provision in a particular case involves examining the relevant express provisions from the standpoint of whether they are inconsistent with the implication by law, rather than whether they are inconsistent with an implied intention on the part of the person concerned to produce a particular outcome. Thus, in Johnson, the presence of an express rule of the registered organisation, in accordance with which the person concerned could have resigned the first office, was held to be insufficient to oust the application of the doctrine of incompatible offices. This was so, notwithstanding authority that a purported resignation that did not accord with the express rule concerning resignation would have been ineffective to bring about a resignation. At 412-413, I said:
‘The doctrine of incompatible offices applies to a registered organisation by way of implication arising from the rules. It is an implication which arises by operation of law, where incompatible offices exist. Like all implications, it may be excluded by the express terms of the rules. It is not, however, to be regarded as an implied term, arising from the presumed intention of all parties to the rules. A party asserting that the branch rules contain an implication that more than one office cannot be held validly may find that such an implication is only to be found together with an implication that the assumption of a second office vacates the first. In accordance with the doctrine of incompatible offices, this must be so, unless it is excluded by clear words. The words of r 29 do not refer to the doctrine of incompatible offices. They contemplate an express attempt to resign, rather than one which arises by operation of law. They may operate to prevent a resignation from taking effect where the person resigning simply states an intention to refuse to continue to hold the office. That was the position in Hassett v Harding. Rule 29 does not have the appearance of a complete code, governing all types of resignation, including those arising by operation of law.’
34 The authorities relating to the doctrine of incompatible offices also make it clear that the incompatibility need not arise from an express provision. It is sufficient if, by their nature, the two positions are incompatible. The illustrations cited by Willes J, in the passage I have quoted in [30] make this plain. So do the facts of the Iron Ship case itself. In that case, there was an express provision in the articles of association of the company that a director could not be appointed to any other office in the company. The person concerned held the office of secretary of the company, which he was held to have vacated by accepting appointment as a director, although the articles of association made no express provision about this order of events. The express provision illustrated the incompatible nature of the two offices. In Egan, Mellor and Johnson, there were no express provisions that could be called in aid in determining whether the relevant offices were incompatible. In each case, the two offices involved membership of deliberative bodies, the members of which were elected. It was the implication, gathered from the relevant rules, that it was not intended that one person should have more than one vote on such a deliberative body, which led to the conclusion that there was incompatibility involved in one person holding more than one of the offices.
35 With this understanding of the principle of surrender by implication in mind, it is necessary to turn to the specific issues in the present case.
Was Ms Butler transferred?
36 The construction of the phrase ‘be transferred’ in r 5.1.5 of the Union’s national rules is not easy. The task of determining whether Ms Butler was transferred from the T&S Branch to the P&T Branch is not made any easier by the absence of any other provision in the national rules of the Union, or the Communications Division rules, for the process by which the transfer is to be effected.
37 Dictionary definitions are not particularly helpful. The Macquarie Dictionary defines ‘transfer’, when used as a transitive verb, as ‘to convey or remove from one place, person, etc., to another.’ As an intransitive verb, the Macquarie Dictionary defines ‘transfer’ to mean ‘to transfer oneself’, or ‘to be transferred.’
38 The process of transfer of a member pursuant to r 5.1.5 has three components. The first is the division, divisional branch or divisional sub-branch from which the member is being transferred. The second is the division, divisional branch or divisional sub-branch to which the member is being transferred. The third is the member himself or herself. As a matter of logic, it might be said that the process of being transferred could involve action by the division, divisional branch or divisional sub-branch from which the member is being transferred, action by the division, divisional branch or divisional sub-branch to which the member is being transferred, action by the member who is being transferred, or some combination of those three elements. In the present case, the question is whether Ms Butler was transferred from the T&S Branch to the P&T Branch by a combination of action on her part and action on the part of the P&T Branch. It seems clear that the T&S Branch played no part at all in the process. It is therefore necessary to construe the phrase ‘be transferred’ in r 5.1.5, in order to determine whether what Ms Butler did, and what the P&T Branch did, resulted in Ms Butler being transferred. In order to construe the phrase ‘be transferred’, it is necessary to see what clues as to its meaning might lie within the Union’s rules.
39 The first clue is the fact that the verb is expressed in the passive voice. The rule does not say that a member may transfer from one division, divisional branch or divisional sub-branch to another. The use of the passive voice suggests that being transferred is something that someone other than the member concerned does to the member concerned, not something that the member concerned does himself or herself. The question, therefore, appears to be whether a member is to be transferred by action by the transferor division, divisional branch or sub-branch, action by the recipient division, divisional branch or divisional sub-branch, or combined action by both.
40 It is important to note that r 5.1.5 applies to transfers between divisions, as well as between divisional branches and divisional sub-branches. There is nothing in the rule to indicate that the phrase ‘be transferred’ should bear a different meaning, according to whether the transfer is between divisions, divisional branches or divisional sub-branches. This point has some importance, because there are some indications in the national rules of the Union that provide clues as to how the phrase ‘be transferred’ should be construed when the transfer concerned is one between divisions.
41 The first such indication is found in r 5.1.5 itself. A transfer is to be ‘in accordance with the rules of the appropriate division.’ According to the definition in r 4.1, the appropriate division is the division to which a member has been attached. This suggests that, whatever might be the content of the process of transfer, it is a process to be initiated by the division from which the member is being transferred, and not by the recipient division. The absence of any rules of the Communications Division governing any process of transfer of members does not nullify the point that r 5.1.5 contemplates that a transfer between divisions is to be conducted according to a process prescribed by rules of the transferor division. In turn, this suggests that a transfer between divisional branches or divisional sub-branches is to be a process initiated in and controlled by the transferor divisional branch, or divisional sub-branch, as the case may be.
42 Support for this view is to be found in r 23 of the national rules of the Union, which imposes on each division or divisional group the obligation to keep a membership register, and in r 50 of the rules of the Communications Division, which devolves the obligation to keep the register of members onto the secretary of each divisional branch. As a practical matter, for a member to be transferred from one divisional branch to another would require that his or her name be removed from the register of members of the transferor divisional branch and placed on that of the recipient divisional branch. This process could not occur without at least the involvement of the secretary of the transferor divisional branch. Similarly, r 32(a) of the rules of the Communications Division provides for payment of contributions to the branch secretary. A transfer to another divisional branch would involve a transfer of this obligation, so that it became an obligation to pay contributions to the branch secretary of the recipient divisional branch. If the rules provided for a single national register of members, and for payment of contributions to a national official, it might be easier to imagine that a transfer process could operate without the involvement of the division, divisional branch or divisional sub-branch from which the member was being transferred.
43 Counsel for Ms Cholosznecki contended that Ms Butler could not have been transferred from the T&S Branch to the P&T Branch unless she had resigned from the T&S Branch. The difficulty with this argument is that r 5.1.4 of the national rules of the Union provides that, upon resignation from a division, the member shall be deemed to have resigned from the Union. It is apparent from this rule that a member could not be transferred from one division to another by a process involving resigning from the transferor division, because the act of resignation would bring about the member’s resignation from membership of the Union altogether. If resignation cannot be part of a transfer from one division to another, it is difficult to see how it could be part of the process of being transferred from one divisional branch to another, because the one rule, r 5.1.5, provides for each kind of transfer.
44 I have considered whether some guidance is available from r 5.5 of the national rules of the Union, under which clearances are to be granted in accordance with the rules of the appropriate division. As I understand the expression, a clearance is normally something granted by one trade union, if a member wishing to resign and join another trade union has paid all dues owing in respect of the trade union from which the member is resigning. Armed with the clearance, the member may then present his or her application for membership of a new trade union and be treated as having good standing with the trade union from which he or she has recently resigned. This understanding appears to be consistent with the provisions of r 32(b) of the rules of the Communications Division, under which an applicant for membership of the Union through the Communications Division is excused from any obligation to pay an entrance fee if he or she has a clearance from a bona fide industrial organisation. There is no evidence in the present case as to whether clearances are granted for a transfer between divisions, or between divisional branches. In the absence of such evidence, it is difficult to call in aid r 5.5 in the construction of r 5.1.5.
45 Slight though the indications found in the rules are, they tend to suggest that the process of being transferred, contemplated by r 5.1.5, is intended to be a process in which the division, divisional branch or divisional sub-branch from which the member is being transferred is, at the very least, to be involved. In the present case, it appears clear that the T&S Branch was not involved in any process of transferring Ms Butler to the P&T Branch. What was done appears to have been done entirely by Ms Butler herself, by submitting her fresh application for membership of the Union to the P&T Branch, and by the P&T Branch, in accepting and processing that application for membership and allocating Ms Butler to the Lines and General Divisional Section. The fact that Ms Butler continued to carry out the functions attached to the office of member of the committee of management of the T&S Branch, to which she had previously been elected, and continued to pay dues to the Branch Secretary of the T&S Branch, suggests that the T&S Branch was not at all involved in any process of transferring her to the P&T Branch. It is unlikely that those administering the T&S Branch would have chosen to act contrary to the rules of the Union by continuing to treat Ms Butler as a member of the T&S Branch, if they had been aware that she had become a member of the P&T Branch, and if they had been aware of the provisions of r 5.1.3 of the national rules of the Union. It is therefore necessary to conclude that Ms Butler was not transferred from the T&S Branch to the P&T Branch in accordance with r 5.1.5. No action taken by Ms Butler, the P&T Branch, or both in conjunction, could be effective to transfer her.
Attachment otherwise than by being transferred
46 The question remains whether what was done by Ms Butler, and by the P&T Branch, was nonetheless effective to attach Ms Butler to the P&T Branch more than 12 months before the closing date for nominations. The document Ms Butler submitted to the P&T Branch in July 2003 was an application to become a member of the Union. Such an application would ordinarily be submitted by a person who is not already a member of the Union. Further, the application was dealt with by the P&T Branch as if it were an application by a person not already a member of the Union. If the P&T Branch had dealt with the application as if it were an application by an existing member of the Union to become attached to the P&T Branch, it might have been necessary to consider whether a member could become attached to a divisional branch, and thereby impliedly surrender any attachment to a previous divisional branch, by indicating an intention to change attachments, which was accepted by the divisional branch to which the intention was signified. As a matter of fact, this was not what occurred in the present case. Plainly, no-one involved in the administration of the P&T Branch was aware that Ms Butler was already a member of the Union, attached to the T&S Branch, when her new application was processed. She was treated as an entirely new member.
47 Nothing in the rules of the Union appears expressly to prevent one person holding two memberships of the Union. Dual, or multiple, memberships are contrary to the structure of the Union’s rules, however. If they were to be regarded as being permitted by the rules, dual or multiple memberships would enable a single person, with sufficient resources to pay all necessary dues, to exercise more than one vote in elections within the Union. Such a situation would tend against the achievement of the object found in s 5(d), in accordance with which the provisions of Sch 1B of the WR Act are intended to ‘provide for the democratic functioning and control of organisations.’ In accordance with this object, s 141(1)(b)(iv) requires that the rules of an organisation provide for the control of committees of the organisation and its branches respectively by the members of the organisation and branches. If the rules of an organisation permitted multiple membership, and therefore multiple voting, they would very likely be held to impose on members conditions, obligations or restrictions that, having regard to the objects of Sch 1B and the WR Act, and the purposes of the registration of organisations, were oppressive, unreasonable or unjust, in contravention of s 142(1)(c). The provisions of s 143(1)(a), in conjunction with the definitions of ‘direct voting system’ and ‘collegiate electoral system’ in s 6, would be violated by rules of an organisation that permitted one person to hold more than one membership. In theory, a person with sufficient resources, could hold sufficient memberships to acquire effective control of an organisation or a branch of an organisation by dominating the elections of its officers. It follows that, while not expressly prohibiting dual membership, the rules of the Union must be read and construed on the basis that each member of the Union will be a separate person and each person can only hold one membership of the Union at one time.
48 Once this is accepted, it follows that the conferment of a second membership on a person is incompatible with the continued holding of that person’s previous membership. By operation of law, in accordance with the principle of implied surrender, the person must be taken to have relinquished the previous membership. In accordance with that doctrine, it cannot be said that the holding of the first membership renders it impossible for the person to acquire a second membership. Rather, the correct analysis is that the acquisition of the second membership involves implied surrender, by operation of law, of the first membership.
49 The principle of implied surrender can only apply to the extent to which it is not excluded by express provisions of the Union’s rules. In this respect, the provisions of r 32(d) of the rules of the Communications Division are highly relevant. As I have said, those provisions reflect the requirement of s 141(1)(b)(viii), that the rules of an organisation must provide for the resignation of members under s 174, and s 174 itself. Although r 32(d) is expressed in permissive terms, it may be taken to be a code as to the manner in which a person intending to effect a resignation from membership of the Union may do so. In accordance with authorities like Hassett v Harding (1976) 27 FLR 457 at 460-461, it would probably be held that an attempt to resign otherwise than in accordance with r 32(d) would be ineffective. The fact that r 32(d) is a rule, and is in a form, required by the WR Act reinforces this view.
50 The principle of implied surrender effects a surrender by operation of law, as I have said in [32]. It does not operate to effect a surrender as a result of the implication of an intention on the part of the person concerned to surrender. There is therefore a question whether the principle of implied surrender is inconsistent with an express rule applying only to the manifestation of an actual intention to resign.
51 On this point, I take the same view as I took in Johnson at 412-413. Despite the existence of r 32(d) of the Communications Division rules, it is my view that an attempt to acquire a second membership automatically vacates the first membership of the person making the attempt.
52 It follows that, by making her application by means of her form dated 18 July 2003 to the P&T Branch, and by the manner in which the P&T Branch dealt with that application, Ms Butler again became a member of the Union. Her accession to this membership had the effect of bringing about the cessation of her previous membership. At the same time, it had the effect of causing her to cease to be a member attached to the T&S Branch and to become a member attached to the P&T Branch. No issue of an entrance fee arose because the committee of management exercised its power, derived from r 32(c) of the Communications Division rules, to waive such a fee, in respect of all those it admitted to membership at its meeting on 12 August 2003. The conclusion that Ms Butler became a member of the Union, attached to the P&T Branch, would follow even if there had been no provision such as r 5.1.3 of the national rules of the Union, because of the inherent impossibility of holding two memberships of the Union.
53 To the extent to which Ms Cholosznecki attempted to rely on r 46(c) of the rules of the Communications Division, her case must also fail. It is not clear at precisely what point in time Ms Butler was allocated to the Lines and General Divisional Section in the P&T Branch, but it is safe to presume that the rules were complied with (the presumption of regularity) in the absence of evidence to the contrary, and therefore that the allocation was made prior to Ms Butler’s appointment as an industrial officer of the P&T Branch. Rule 46(c) operated to cause that allocation to continue after Ms Butler was appointed an industrial officer. Her earlier allocation to the Technical Divisional Section in the T&S Branch did not survive her implied surrender of her earlier membership of the Union, and could not be revived by operation of r 46(c).
Conclusion
54 For the foregoing reasons, Ms Butler became a member of the Union, attached to the P&T Branch in July or August 2003. This was more than 12 months prior to the closing of nominations in the elections for the offices for which she was a candidate, and to which she was elected. She complied with the requirement of r 66(a) of the Communications Division rules that she be a ‘continuously financial member’ of the P&T Branch for a period of not less than 12 months immediately prior to the closing date of nominations. Accordingly, there was no irregularity in the returning officer accepting her nominations for both of those offices.
55 It follows that the application for an inquiry into the elections must be dismissed; an order pursuant to s 206(4) can only be made if the Court finds that an irregularity has happened.
56 At the conclusion of the hearing of the inquiry, I raised the question whether Ms Cholosznecki would be entitled to a certificate pursuant to s 325(1), if her application were unsuccessful. Counsel for Ms Cholosznecki was not at that stage in possession of instructions to seek such a certificate. There seems little doubt that such a certificate ought to be granted. The issues raised by the application for an inquiry are complex. The returning officer found them to be so. They have caused me to have to reserve my judgment, in order to reach a conclusion about them. I am therefore prepared to certify that Ms Cholosznecki acted reasonably in applying for an inquiry into the elections the subject of this proceeding. If it should turn out that Ms Cholosznecki does not wish to avail herself of the certificate, she need not do so.
57 Otherwise, s 329(1) applies to the proceeding, and no order for costs can be made.
|
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. |
Associate:
Dated: 28 April 2006
|
Counsel for the applicant: |
A Duffy |
|
Solicitor for the applicant: |
Paul Horvath |
|
Counsel for Valerie Butler: |
K Farouque |
|
Solicitor for Valerie Butler: Solicitor for CEPU: Solicitor for Australian Electoral Commission: |
Maurice Blackburn Cashman Slater and Gordon Australian Government Solicitor |
|
Date of Hearing: |
8 March 2006 |
|
Date of Judgment: |
28 April 2006 |
