Re Federated Clerks Union of Australia, An Organization of Employees Under the Conciliation and Arbitration Act 1904 v Re An Application By Philip William Bath of An Inquiry Into Elections In the Federated Clerks' Un [1982] FCA 22 (4 March 1982)

FEDERAL COURT OF AUSTRALIA

Re: IN THE MATTER OF THE FEDERATED CLERKS UNION OF AUSTRALIA, AN ORGANIZATION
OF EMPLOYEES UNDER THE CONCILIATION AND ARBITRATION ACT 1904
And: IN THE MATTER OF AN APPLICATION BY PHILIP WILLIAM BATH FOR AN INQUIRY
INTO ELECTIONS IN THE FEDERATED CLERKS' UNION OF AUSTRALIA; TAXATION OFFICERS'
BRANCH No. V7 of 1981
Conciliation and Arbitration
1 IR 217

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.

CATCHWORDS

Conciliation and Arbitration - registered organization - rules - election for offices within branch - inquiry into alleged irregularities - breach of rules of organization and branch - ineligible to be elected to office.

Conciliation and Arbitration Act 1904 ss.4, 159, 165, 167 Public Service Act 1922 ss.7, 10, 71 Public Service Arbitration Act 1920 s.4

HEARING

MELBOURNE
4:3:1982

ORDER

THE COURT DECLARES THAT the election, completed on 22 April 1981, of Paul Anthony Tregillis to the offices of branch president and federal councillor, Federated Clerks' Union of Australia; Taxation Officers' Branch is void.

THE COURT FURTHER DECLARES THAT the election of Leslie Simon Heimann to the office of federal councillor, Federated Clerks' Union of Australia; Taxation Officers' Branch is void.

THE COURT DIRECTS THAT the Industrial Registrar make arrangements for a new election to be held to fill the offices of branch president and federal councillor (2 vancancies) Federated Clerks' Union of Australia; Taxation Officers' Branch.

DECISION

Under s.165 of the Conciliation and Arbitration Act 1904 (hereinafter called "the Act") the Court is inquiring into the question of whether any irregularity has occurred in or in connection with elections for offices within the Federated Clerks Union of Australia; Taxation Officers' Branch (hereinafter called "the Taxation Officers' Branch") of the Federated Clerks Union of Australia (hereinafter called "the Union"), an organization of employees under the Act. The inquiry concerns the office of branch president and two of the three offices of federal councillor elected by members of the Taxation Officers' Branch. The elections were completed on 22 April 1981 and were conducted under s.170 of the Act by an officer of the Australian Electoral Office, Sydney. At those elections Paul Anthony Tregillis was declared elected to the offices of branch president and federal councillor, and Leslie Simon Heimann was declared elected to the office of federal councillor. Within the prescribed time, Philip William Bath, a member of the Union, by application dated 26 August 1981 lodged with the Industrial Registrar an application under s.159(1) of the Act claiming that there had been irregularities in or in connection with the election for those three offices, s.159(1), (4) and (5) (b). By reference dated 6 October 1981 the Industrial Registrar referred the application to the Court and thereupon the inquiry was instituted, s.159(4) (a).

At the inquiry counsel appeared for Mr. Bath, counsel appeared for Mr. Tregillis and Mr. Heimann and the same counsel appeared for the members of the committee of management of the Taxation Officers' Branch, and counsel appeared for the Union. Counsel for the Union supported the submissions made by counsel for Mr. Bath. The irregularity alleged was a breach of the rules of the Union and of the Taxation Officers' Branch, namely that under the rules neither Mr. Tregillis nor Mr. Heimann were, or were eligible to be, members of or attached to the Taxation Officers' Branch, and thus were ineligible for election to any office within the Taxation Officers' Branch, see Branch Rule 20(c).

In order to understand the issues, some reference must be made to the Federal Rules of the Union. Rule 2 is headed "Constitution" and is as follows:

"The Union shall consist of all persons engaged in any clerical capacity, and/or engaged in the occupation of shorthand writers and typists and/or of calculating, billing, or other machines designed to perform or assist in performing any clerical work whatsoever."

Of necessity, this rule must be accepted as hyperbole. It must be read down and be limited to persons who, at the time of becoming members of the Union, were engaged or were normally engaged as employees and who carried on any of the specified pursuits specified in the rule. This is made clear by the provisions of Rule 5 which is headed "Conditions of Membership" and Rule 12 which is headed "Branches". The opening provisions of Rule 5(1) are as follows:

"5.(1) A candidate for membership may make application to the Branch covering the area or industry in which he or she resides or is employed and such application shall be made in the manner and subject to the conditions required by the rules of the Branch to which it is made; . . . "

Sub-rule (6) is of importance and is set out in full:

"(6) Except where the Federal Council or Federal Executive determines otherwise, every member shall be deemed to be attached to the Branch of the Union covering the locality in which he resides or, in the case of members employed in an industry for which a Branch has been established, then to such Branch. Where there is not a Branch covering the locality in which a member resides or the industry in which he is employed, he may be attached to such Branch as the Federal Executive may direct."

Rule 12(1) is set out:

"(1) The Union shall consist of members throughout the Commonwealth of Australia and all Territories and dependencies of the Commonwealth, and the following shall be the Branches of the Union:-

North Queensland;
Central and Southern Queensland;
New South Wales;
Broken Hill (within the County of Yancowinna);
Victoria;
Tasmania;
South Australia;
West Australia;
Taxation Officers.

All Branches shall conform to the Rules of the Union. Except where the Federal Council decides otherwise each Branch shall be called 'Federated Clerks Union of Australia . . . . . . . . . Branch' (the blank being filled in with the name of the Branch)."

The Federal Rules do not define the industry in which the Taxation Officers' Branch has been established. Later in these reasons further reference will be made to this aspect.

Federal Rule 12 contains many provisions relating to branches. Subject to the Federal Rules, and to the approval of the federal executive, a branch has power to make rules for its own internal management. Those rules must make provision for the election of branch officers including those officers known as federal councillors and being members of the federal council. It is not necessary to refer to the details of these provisions of Rule 12, nor apart from Rule 6, need reference be made to any of the other Federal Rules. It is sufficient to say that the Federal Rules do not contain any provision to the effect that a person who ceases to be an employee or ceases to be engaged in any of the pursuits specified in Rule 2, necessarily ceases to be a member of the Union. Reference may be made to Rule 10 headed "Resignations" and Rule 11 headed "Purging the Register". Rule 6 is headed "Application Forms, Transfers and Clearances". Sub-rule 2 is set out:

"(2) Any member changing his residence or industry otherwise than temporarily to a locality or industry covered by another Branch shall, except where Federal Council or Federal Executive determines otherwise, be furnished by the Federal Secretary or the Secretary of the Branch he is leaving with a formal transfer set out in such manner as the Federal Executive may from time to time prescribe."

At this stage it is desirable that a brief summary be given of the structures of the Union. Each person applying for membership is, upon becoming a member, deemed to be attached to the branch to which application is made. Normally his place of residence at that time determines the branch to which he is attached, the membership of each branch except one being defined by reference to an area. In this respect Rule 5(1) is to be read disjunctively, namely the branch covering the area in which the applicant resides or the industry in which the applicant is employed determines the branch to which application for membership is to be made. There is one industry branch, the Taxation Officers' Branch. Subject to any contrary determination of federal council or federal executive, if a person, when applying for membership, is employed in that industry, then irrespective of his place of residence he is deemed to be a member of the Taxation Officers' Branch. This follows from Rule 5(6). Upon becoming a member of the Union, a person remains a member until death, resignation or purged from the Union. Under the rules a member of the Union of necessity must be attached to a branch.

The provisions relating to transfer from one branch to another are not explicit. Rule 6(2) appears to provide an administrative method whereby a member of the Union can have his name transferred from the register of members at one branch to the register of members at another branch. That sub-rule is based on the concept that the attachment of a member to a branch is transferred automatically to a different branch if that member changes "his residence or industry otherwise than temporarily to a locality or industry covered by another branch" (emphasis added). Where that occurs membership records are altered upon the basis of the formal transfer documents. This formality follows the actual change in attachment to a branch. Difficulties may arise from the absence in the rules of explicit provisions relating to the transfer of attachment of members to a branch, and this merits consideration by the federal council or federal executive of the Union. By way of illustration, reference can be made to Federal Rule 36, Taxation Officers' Branch Rule 24 and the Victorian Branch Rule 37. Those rules do not require the register of members to be kept by the branch secretaries to have included in them the industry in which a member is employed. There is no obligation imposed on a member to notify the secretary of his branch of a change in employment in an industry thereby bringing into operation, where applicable, the administration provisions of Federal Rule 6.

The Taxation Officers' Branch has made rules for its own internal management. These rules are hereinafter referred to as the "Branch Rules". Rule 2 of the Branch Rules is headed "Constitution" and is as follows:

"The Branch shall consist of all persons employed in or under the Department of the Treasury in the Commonwealth Taxation Office and engaged in any clerical capacity and/or engaged in the occupation on shorthand writers and typists and/or of calculating billing or other machines designed to perform or assist in performing any clerical work whatsoever." The other relevant Branch Rules conform with the Federal Rules. Under Branch Rule 20 only financial members of the branch are eligible for election to any office and the same rule defines who are financial members.

Mr. Tregillis and Mr. Heimann are each engaged in a clerical capacity under the rules of the Union. Each is a member of the Union. Each is a financial member of the Union. The issue is whether they or either of them are or is "employed in or under the Department of the Treasurer in the Commonwealth Taxation Office and engaged in any clerical capacity" under Branch Rule 2? In other words, were they or either of them attached to or a member of the Taxation Officers' Branch at the time of the elections the subject of the inquiry?

Mr. Tregillis resides and at all material times resided in Victoria. In May 1975 he obtained employment as a research officer in the Taxation Officers' Branch. Since then he has been employed in the sense hereinafter set out by that branch, or by the Union, but nothing turns upon that. Under the terms of his employment by the Taxation Officers' Branch his salary has been paid by the branch and he has performed his duties pursuant to the directions of that branch. In June 1975, in accordance with the Federal Rules and the rules of the Victorian Branch he applied for membership of the Union by making application to the Victorian Branch. He was deemed a member of the Victorian Branch. Since then he has continued to be attached to the Victorian Branch and his name currently appears on the register of members as being a member of the Victorian Branch. He is a financial member of the Victorian Branch. On the face of the evidence before the Court he has not changed his industry to an industry covered by another branch. There has been no formal transfer furnished under Federal Rule 6(2).

In January 1981, Mr. Tregillis, in accordance with the Federal Rules and the Branch Rules, applied for membership of the Union by making application to the Taxation Officers' Branch. He was admitted a member of the Taxation Officers' Branch. Since then he has continued to be attached to the Taxation Officers' Branch and his name currently appears on the Register of members as being a member of the Taxation Officers' Branch. He is a financial member of the Taxation Officers' Branch.

In the result, Mr. Tregillis has dual membership of the Union. His counsel submitted that the rules of the Union did not prevent this and that a person could have dual, or for that matter, triple or more membership of the Union at any one time, thereby entitling that person to hold office in two or more branches at the one time. Likewise, on such a basis, the one person might be able to exercise more than one vote in a ballot of membership of the Union and could affect the number of federal councillors to be elected by any one branch. Insofar as the rules of the Union permit this, it could be argued that they contravene s.140(1) of the Act, but the irregularity claimed in the present case is not based on s.140 and accordingly I express no opinion on that issue except to say that the proposition of counsel appears rather startling.

In April 1961 Mr. Heimann was recruited into the Australian Public Service and was employed in the Department of the Treasurer in the Commonwealth Taxation Office. In July 1969, in accordance with the Federal Rules and the Branch Rules, he applied for membership of the Union by making application to the Taxation Officers' Branch. He was admitted a member of the Taxation Officers' Branch. Since then he has continued to be attached to the Taxation Officers' Branch and his name currently appears on the Register of members as being a member of the Taxation officers' Branch. He is a financial member of the Taxation officers' Branch. In March 1975 he obtained employment as an industrial officer in the Taxation Officers' Branch and since then he has been employed in the sense hereinafter set out by that branch. Under his employment by the Taxation Officers' Branch his salary has been paid by that branch and he has performed his duties pursuant to the directions of that branch. He has not been supplied with a formal transfer furnished under Federal Rule 6(2). He does not have dual membership of the Union.

I have referred to the difficulties involved in construing Federal Rule 2. In the context of that rule the word "engaged" is to be considered as meaning carrying on or being occupied in performing any of the pursuits referred to therin as an employee. A reference to the Shorter Oxford Dictionary illustrates the disparate meanings attributed to the words "engage" and "engaged". If a person is carrying on or is occupied in performing any of the specified pursuits as an employee, or normally carries on or normally is occupied in performing any of these pursuits as an employee, he is eligible to become a member of the Union. Of necessity, the provisions of s.132 of the Act limit membership of the Union to persons who are employees. Accordingly, there is imported to the word "engaged" the concept of employment as an employee.

Branch Rule 2 purports to define the limits of eligibility for membership of the Taxation Officers' Branch referred to in Federal Rule 12. It does this by a denotation of an industry by reference to an employer. Nice questions could arise in the context of the Act, the rules of the Union and the nature of the pursuits specified in Federal Rule 2, whether this could be done by reference to an employer when that employer is not engaged in industry within the meaning of that word as used in the Act and the Constitution, s.51(XXV); see for example the Professional Engineers' case (1959) 107 C.L.R. 218, per Dixon C.J. at pp.232-242 and R. v. Marshall; Ex parte Federated Clerks' Union of Australia [1975] HCA 37; (1975) 132 C.L.R. 595. In the present case these questions do not arise since under s.4 Public Service Arbitration Act 1920 employees in the Australian Public Service are deemed to be employees in an industry within the meaning of the Conciliation and Arbitration Act.

Branch Rule 2 uses the words "employed in or under the Department of the Treasury in the Commonwealth Taxation Office" to define the relevant part of the Australian Public Service. That service is defined in the Public Service Act 1922 as meaning the persons who occupy the offices in the several departments specified in Schedule 2 of that Act and the persons who are unattached officers, see s.7 and s.10. One of the departments specified in Schedule 2 is the Department of the Treasury. The Australian Taxation Office forms part of that department and for the purposes of the Branch Rules I treat the Commonwealth Taxation Office as being the equivalent of the Australian Taxation Office. In the Public Service Act a distinction is drawn between an "officer" and an "employee", but in this inquiry nothing turns upon that distinction.

Difficult questions can arise in determining who is the actual employer of persons who occupy the offices in the several departments specified in Schedule 2 of the Public Service Act, but in this inquiry it is not necessary to consider those questions. In Branch Rule 2 the concept of an employee in the industrial sense is imported by the use of the word "engaged" appearing in that rule.

Counsel for Mr. Bath and counsel for the Union contended that in order to enable an employee to come within Branch Rule 2 that person had to be employed as an employee performing or normally performing one of the specified pursuits as part of his duties arising from or being in connection with him being a person occupying an office in or under the Department of the Treasury in the Australian Taxation Office. Counsel for the other parties to the inquiry contended that Mr. Tregillis and Mr. Heimann each came within the terms of Branch Rule 2 since each was a person within the Australian Public Service in or under the Department of the Treasury in the Australian Taxation Office and each was engaged in a clerical capacity in the sense of carrying on or performing the activities commonly carried on or performed by persons doing work of a clerical nature. In support of that contention counsel referred to the provisions of the Public Service Act and the particular circumstances affecting Mr. Tregillis and Mr. Heimann.

Among other provisions, the Public Service Act makes provision whereby an officer or employee within the meaning of that Act may be granted leave without pay, see s.71. The relevant provisions of that section were amended by s.28 of Act No. 170 of 1978 which came into operation on 15 March 1981. It is not necessary to consider in detail the effect of those provisions, but it is necessary that a brief account be given of the employment history of Mr. Tregillis and Mr. Heimann.

Mr. Tregillis was recruited into the Service in May 1974 and initially occupied offices in a department other than the Department of the Treasury. Under the terms of his appointment as a member of the Service he was required to make contributions to the Commonwealth Superannuation Fund. As has been said, in May 1975 he commenced duties as an employee of the Taxation Officers' Branch. In order to do that he was granted leave without pay from the Service, initially for separate periods of twelve months. It was a condition of the leave being granted that he continue to make his superannuation fund payments. Once leave was taken he did not receive salary under the provisions of the Public Service Act or under any determination of the Public Service Arbitrator, nor did he perform his duties pursuant to the provisions of that Act. Since then he has continued on leave without pay at least until 21 May 1981, being after the date of his election to the offices in the Taxation Officers' Branch, and he has continued to make his superannuation payments as before. On any view, when he first applied for membership of the Union he had to make it to the Victorian Branch. While working for the Taxation Officers' Branch he was promoted from time to time within the service and to the position within another department specified in Schedule 2 of the Public Service Act. In January 1981 he was placed on the unattached list of the Department of the Treasury in the Australian Taxation office. The effect of this is that although he has not been appointed to occupy a specified position in that office, upon the determination of his unpaid leave he must be appointed to fill a position in that office at a level equivalent to his position in the Third Division of the Service. It is to be noted that his application to join the Union through the Taxation Officers' Branch was made, after he had been placed on the unattached list in the Australian Taxation Office.

Mr. Heimann was recruited into the Service in April 1961 and since then has filled positions in the Department of the Treasury in the Australian Taxation Office. At present he holds the substantive position of Senior Investigation Officer Grade 1. In 1961 he applied through the Taxation Officers' Branch for membership of the Union and was admitted a member. Since March 1975 he has been on unpaid leave to enable him to perform his duties as an employee of the Australian Taxation Officers' Branch. At present he is on a period of leave for three years from April 1981. Like Mr. Tregillis he has been required to continue to make his contributions to the Superannuation Fund.

On these facts counsel for Mr. Tregillis and Mr. Heimann contended that at the time of the election each was eligible to be, and each was in fact, a member of the Taxation Officers' Branch.

A reference to the Shorter Oxford Dictionary illustrates the disparate meanings attributed to the words "employ" and "employed". In the context of Branch Rule 2 the word "employed" is used to denote the class of persons who, as employees in the industrial sense, carry on or perform or usually carry on or perform any of the specified pursuits as part of the duties imposed upon them by reason of them being within the Service. In other words, the engagement in the specified pursuits must be pursuant to duties arising out of or in connection with service in the Australian Public Service.

In applying that construction of Branch Rule 2 to the facts of this inquiry it is clear that Mr. Tregillis was invalidly admitted as a member of the Taxation Officers' Branch in January 1981. At that time he was an employee of that branch performing his duties of a clerical nature at the direction of that branch. He was not performing those duties pursuant to the provisions of the Public Service Act. Accordingly, his purported admission as a member of that branch was invalid.

It remains to consider whether under Federal Rules 5(6) and 6(2) his membership has been transferred from the Victorian Branch to the Taxation Officers' Branch. There is no suggestion that there has been a determination under Federal Rule 5(6) by the federal council or the federal executive. The absence of a formal transfer cannot of itself prevent a transfer taking place. Whether a transfer has in fact occurred depends upon the construction of Federal Rule 6(2) or rather the implications behind that sub-rule having regard to the policy of the rules as expressed in Federal Rule 5(6) and as considered earlier in these reasons. This turns particularly upon the words:

"Any member changing his residence or industry otherwise than temporarily to a locality or industry covered by another Branch . . . "

In the light of the opinion already expressed, it cannot be said that Mr. Tregillis has changed his industry to an industry covered by another branch, namely he has not changed his industry to that denoted by Branch Rule 2. Accordingly, there has been no change of industry to the industry denoted in the Taxation Officers' Branch. It follows, therefore, that Mr. Tregillis was not a member of the Taxation Officers' Branch at the time of his election.

Different considerations apply with respect to Mr. Heimann. He validly was a member of the Taxation Officers' Branch. The issue is whether, under the rules of the Union, his membership has been transferred to the Victorian Branch. There is no suggestion that there has been any determination under Federal Rule 5(6) by the federal council or federal executive. There has been no formal transfer furnished under Federal Rule 6(2) but this of itself cannot be decisive. Since March 1975 he has not been performing his duties of a clerical nature pursuant to the provisions of the Public Service Act. Since then he has not been paid pursuant to the provisions of the Public Service Act. He has been performing his duties pursuant to the directions of the Taxation Officers' Branch and his salary has, in fact, been paid by that branch. At the time of his election it was anticipated that he would continue that relationship with the Taxation Officers' Branch indefinitely and at least for a period of three years. In these circumstances, has he changed his industry otherwise than temporarily? He has not changed his residence, but in my opinion he has changed his industry in circumstances which, unless temporary, have the effect of transferring his membership from the Taxation Officers' Branch to the Victorian Branch.

In the light of the established facts it cannot be said, in my opinion, that the change of industry is temporary. Likewise, the change is not permanent, nor was it suggested that it was permanent, but that does not mean that the change was no more than temporary. The word "temporarily" is not the true or only antithesis to the word "permanently", generally see British Road Services Ltd. v. Wurzal (1971) 1 W.L.R. 1508. In order to construe the word "temporarily", it is necessary to consider its application in Branch Rule 2. For reasons already expressed, the word "engaged" appearing therein supports the concept of a member being an employee performing duties in the manner already described. In considering this matter I have received the assistance of opinions expressed by O'Bryan J. in Buntine v. Hume (1943) V.L.R. 123. In that case the issue for decision was whether the defendant was "engaged on war service" within the meaning of National Security Regulations. At pp.127-8 His Honour said:

"Part of Mr. Dean's argument, as I understand it, is that you cannot predicate of a person who is occupied for substantially the whole of his time in following his ordinary civil avocation that he is engaged on war service merely because for short periods and at intermittent and uncertain times he is obliged to perform military duties which, if performed continuously or with a substantial degree of continuity, would undoubtedly constitute war service.

I agree with this argument and it is at this point that, in my opinion, the defence fails.

I think it is clear from a general reading of these regulations that their purpose was not to give protection to all persons who by reason of enlistment have been called upon to perform any military service, however small, and who are liable to be called up for full-time service, but to those whose ordinary occupation in life has been substantially interrupted by their engagement on a particular kind of national service and who are thereby presumably in need of protection. The regulation has chosen the expression 'engaged on war service' as limiting the class to which that protection is given, and, in my opinion, the word engaged here means more than a mere employment for short periods intermittently and at irregular intervals, but connotes some continuity of employment for a substantial part of the person's time. The word engaged is itself capable of that meaning. In some contexts you may speak about a person being engaged in an occupation for however short a period he may be occupied therein. In another context, however, the word engaged conveys a different meaning, i.e., it excludes mere casual or intermittent employment and rather connotes such a degree of employment as occupies the whole or at least a substantial part of the person's time.

It is a question of fact whether this defendant was so engaged, but in this case that question must inevitably have been decided against the defendant. If you were to ask of him upon what work is he engaged, the answer would be that he is engaged in following the occupation of a farmer. In one sense it is probably true to say that he is engaged in a number of other occupations, but that is not the sense in which the word engaged is, in my opinion, used in this regulation. The mere intermittent employment on military duties of the kind proved in this case does not make the defendant a person 'engaged' in those duties within the meaning of this regulation; and the defendant would be in no better position if the case fell to be decided upon a day when he happened to be employed on such duties."

A similar approach should be adopted in this case. This approach overcomes the problem posed in argument that would arise if a person residing in Victoria was employed in the Department of the Treasury in the Australian Taxation Office for five days a week and on the sixth day was employed as a bookmaker's clerk. On the assumption that that person could not have dual membership of the Union, he would be attached to the Taxation Officers' Branch, the employment as a bookmaker's clerk being of a casual or intermittent, albeit regular and permanent nature. In the context of Federal Rule 6(2) his employment as a bookmaker's clerk would be of a temporary nature.

In the present case, Mr. Heimann's employment by the Taxation Officers' Branch is of a permanent nature, albeit for an indefinite period. It is a change otherwise than temporarily, within the meaning of Federal Rule 6(2). It follows that in my opinion at the time of the election Mr. Heimann was not a member of the Taxation Officers' Branch.

This opinion is consistent with the concept behind the existence of organizations, see Rubberworker's case [1957] HCA 19; (1957) 97 C.L.R. 71 and R. v. Clarkson; Ex parte The Victorian Employers' Federation [1973] HCA 57; (1973) 131 C.L.R. 100.

The establishment of the Taxation Officers' Branch was to facilitate the protection of the industrial interests of the class of persons employed in the Service in the specified office of the specified department. Mr. Tregillis and Mr. Heimann do not come within that class of persons whose industrial interests are protected by that branch. Their employer is the Taxation Officers' Branch and in this respect their industrial interests come within the class of employees engaged in the pursuits specified in Federal Rule 2 and who reside in Victoria.

In the result the Court finds that an irregularity has occurred in or in connection with the election, namely that there has been a breach of the Branch Rules and in particular Branch Rule 20(c) in that at the election neither Mr. Tregillis nor Mr. Heimann was a member of the Taxation Officers' Branch and therefore neither was eligible for election to the offices to which they were declared to be elected. Of necessity the result of the election was affected by that irregularity, s.165(4) and the definition of "irregularity" in s.4 of the Act. The irregularity is of such a serious nature that even if the Court had a discretion to refuse to make any orders, the Court would not exercise that discretion in favour of Mr. Tregillis or Mr. Heimann. Accordingly, orders are made declaring void the election of Mr. Tregillis to the offices of branch president and federal councillor respectively and the election of Mr. Heimann to the office of federal councillor. A further order shall be made directing the industrial registrar to make arrangements for a new election to be held to fill those offices.

On 27 November 1981 the Court made an interim order as follows:

"Pending the further order of the Court the persons purportedly elected to the offices of branch president and federal councillors (2) in the Taxation Officers' Branch of the Federated Clerks Union of Australia in an election in that branch completed on or about 22 April 1981 shall perform the duties and exercise the powers of the said officers as if validly elected thereto."

No further order is made and accordingly that order will remain in operation until the new elections have been completed and the persons declared elected take office.