Re Application By Damien Stapleton; George Ryan and John David Weston of An Inquiry Into An Election of Offices In the Australian Theatrical and Amusement Employees Association NSW [1983] FCA 209 (31 August 1983)

FEDERAL COURT OF AUSTRALIA

Re: APPLICATION BY DAMIEN STAPLETON; GEORGE RYAN AND JOHN DAVID WESTON FOR AN
INQUIRY INTO AN ELECTION FOR OFFICES IN THE AUSTRALIAN THEATRICAL AND
AMUSEMENT EMPLOYEES ASSOCIATION
N.S.W. No. 9A of 1982
N.S.W. No. 28 of 1982
N.S.W. No. 36 of 1982
Industrial law
5 IR 341

COURT

IN THE FEDERAL COURT OF AUSTRALIA
N.S.W. DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial law - registered organization of employees - Inquiries into Election for offices in Branch of organization - whether Industrial Registrar has power to delete part of an organization rule amendment submitted for his consent - whether the organization's rules providing that an unfinancial member on paying arrears remains unfinancial for a further month is oppressive, unreasonable or unjust - whether the organization's rule providing that a member, to stand for office, must have been continuously financial for the 12 months prior to nomination is oppressive, unreasonable or unjust - whether a member "on deductions" becomes financial as from the time of deduction by the employer or only from the time of receipt of deductions by the union office - whether a candidate for office who is financial at nomination but becomes unfinancial during the ballot (and where the rules are silent) can continue as a candidate.

Conciliation and Arbitration Act 1904 ss.139(4), 140(1)(c), 159, 165, 170, 170A and 171F

HEARING

SYDNEY
31:8:1983 and 30:9:1983

ORDER

1. The Court determines that irregularities have occurred in the 1982 election for the officers of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association, hereinafter called the ATAEA, being an election for the offices of president, vice-president, secretary/treasurer, assistant secretary and 12 executive members.

2. The Court orders that a new election be held pursuant to s.165A of the Conciliation and Arbitration Act (the Act) for all offices in the New South Wales Branch of the ATAEA and directs that such election be arranged by the Industrial Registrar appointed under the Act in accordance with the following scheme and timetable:
(a) In the week commencing 23 April 1984 the returning officer shall cause to be circulated to all members of the ATAEA whether financial or not a notice in accordance with rule 42A(b)(ii) of the rules of the organization. (b) On 8 June 1984 an advertisement be placed in the Sydney Morning Herald and the Daily Telegraph inviting nominations for the said offices in accordance with the provisions of rule 42A(c) of the rules of the organization.

(c) Nominations to open on 29 June 1984;

(d) Nominations to close on 20 July 1984;

(e) The ballot where necessary to commence on 10 August 1984

(f) The ballot to conclude on 31 August 1984.

3. The Court directs that the returning officer conducts the said election

on the basis that:
(i) That the words "and for a period of one calendar month thereafter" in certified rule 9(a) of the rules of the organization are deleted;

(ii) That the word "continuously" in rule 47(c) of
the rules of the organization is omitted;

(iii) That all the words after the word "nomination" where first appearing

in certified rule 47(c) of the rules of the organization are deleted.

4. The Court orders that until the new election is concluded each of the persons elected to the respective offices of president, vice-president, secretary, treasurer, assistant secretary and twelve executive members in the subject election shall each hold his or her respective office and shall be deemed for all purposes to have held such office in the New South Wales Branch of the organization since 24 February 1982 and each shall be a member of and shall be deemed for all purposes to have been a member of the executive of the New South Wales Branch of the organization since that date.

5. The Court orders that the costs of the following parties, namely, Mr Stapleton, Mr Jenkins, Mr Taylor, Mr Ford and Mr Nelson be paid by the ATAEA.

6. Liberty is granted to any party to apply on seven days notice to the Court and to the other parties to the proceedings.

7. The exhibits in the matter may be handed out.

ORDER

The application be dismissed.

The applicant herein acted reasonably in applying for the subject inquiry.

ORDER

1. The Court orders that the inquiry herein be terminated.

2. The Court certifies pursuant to s.168(2) of the Conciliation and Arbitration Act 1904 that the applicant John David Weston acted reasonably in making his application for the inquiry under Part IX of the Act.

DECISION

The triennial election of the members of the Executive of the New South Wales Branch (the Branch) of the Australian Theatrical and Amusement Employees Association (the organization) an organization registered under the Conciliation and Arbitration Act 1904 (the Act) was held in January/February 1982. The business of branches of the organization is conducted by a Branch Executive which, in the New South Wales Branch, was, after the 1982 elections, to consist of a President, a Vice President, a Secretary/Treasurer, an Assistant Secretary and 12 ordinary members. The election was held pursuant to s.170 of the Act, the Returning Officer being a member of the staff of the Australian Electoral Office.

Nominations for the filling of the various offices opened on 4 January 1982 and closed on 19 January 1982. Other than for the office of President nominations for the remaining offices were such that ballots were required. Such ballots commenced on 2 February 1982 and closed on 23 February 1982, the Returning Officer declaring the result of each ballot on 24 February 1982 by letter to the Secretary of the Branch of the organization at its office at 15 Glebe Point Road, Glebe which reads:

"Dear Sir,

Australian Theatrical and Amusement Employees Association Elections

Pursuant to Section 170 of the Conciliation and Arbitration Act 1904

I refer to my letter dated 3 July 1981, concerning the arrangements for me to conduct the election for various offices in the above Association and wish to inform you that the elections have been duly conducted and the results, together with my declaration of the poll, are attached.

My declaration of the poll for the uncontested position of President was forwarded to you on 21 January, 1982.

Yours faithfully, "
AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLOYEES
ASSOCIATION
NEW SOUTH WALES BRANCH
1982 ELECTIONS
DECLARATION OF THE POLL

For the Election of ONE SECRETARY/TREASURER

CANDIDATES VOTES

JENKINS, Simon 819
STAPLETON, Damien 808
TOTAL 1627
INFORMAL 21

I declare Simon JENKINS elected.

For the Election of ONE ASSISTANT SECRETARY

CANDIDATES VOTES
---------- -----

McGILL, Peter Wallace 868
WESTON, John 756
TOTAL 1624
INFORMAL 24

I declare Peter Wallace McGILL elected.

For the Election of ONE VICE-PRESIDENT

CANDIDATES VOTES
---------- -----

GAILEY, Lyn 917
TAYLOR, Michael 709
TOTAL 1626
INFORMAL 22

I declare Lynn GAILEY elected.

For the Election of TWELVE EXECUTIVE MEMBERS

CANDIDATES

VOTES
---------- -----

ALLEY, David L. 798
BAILEY, Julie James 1063

(6)
BIENSTOCK, Sam 1306 (4)
FORD, Colin James 962 (7)
HENSLER, David 894(12)

HILL, J 790
IRVING, Louis 922

(9)

MALAGRE, Peter Lawrence 720
McSWAIN, Ken

915(11)
NELSON, Ronald M. 916(10)
OWEN, Susan 1456 (1)

RICHARDSON, Ronald Jeffrey 782
RYAN, George 1353

(3)
SCHUBERTH, J.T. 1305 (5)

SUGGETT, W. Alan 695
SUSSEX, L. 719
TAYLOR, Greg 942

(8)
WALKER, Ian A. 1421 (2)

WINDON, Steven 821
TOTAL 18780
INFORMAL 83

I declare Susan OWEN, Ian A. WALKER, George RYAN, Sam BIENSTOCK, J.T. SCHUBERTH, Julie James BAILEY, Colin James FORD, Greg TAYLOR, Louis IRVING, Ronald M. NELSON, Ken McSWAIN and David HENSLER elected."

Thereafter on 5 March 1982 Damien Stapleton a member of the Branch lodged with the Industrial Registrar an application for an inquiry into the said election pursuant to s.159(1) of the Act challenging the whole election. For some 7 years prior to the said election Mr Stapleton had been the full-time Secretary/Treasurer of the Branch and for the major part of that period the Federal Secretary of the organization. As appears from the figures set out above he had been the unsuccessful candidate for the office of Branch Secretary/Treasurer in the said election having been defeated by 11 votes.

Particulars of alleged irregularities

Such particulars as set out in the application filed by Mr Stapleton read:
"1. Persons who were not financial members of the union were sent ballot

papers in the said election.

2. Persons who were financial members of the union were not sent ballot papers in the said election.

3. Persons who reside in other states were sent ballot papers in the said election.

4. Persons who were entitled to vote in the said election, and who were sent ballot papers did not receive the ballot papers.

5. Persons who were entitled to vote in the said election, and who were sent ballot papers, did not receive the ballot papers in time to return them by the close of the ballot.

6. Persons who were entitled to vote in the said election did not receive ballot papers at their home address shown on the union's records, such ballot papers were forwarded to a place of work and/or to a place where they did not work.

7. Casual employees who were financial members and entitled to vote were not sent ballot papers.

8. Persons who signed membership deduction authorities and were entitled to vote were not sent ballot papers.

9. That the candidate for Secretary, Mr S. Jenkins and the candidate for Vice President, Ms L. Gailey, were not admitted to membership in accordance with the rules of the organization and were therefore not entitled to be candidates in the said election.

10. That there was no compliance with either the rules of the organization or the provisions of Regulation 146AD of the regulations made pursuant to the provisions of the Conciliation and Arbitration Act, 1904.

11. That the notice calling for nominations and the ballot paper did not indicate all the offices to be filled by the election of a candidate."

The rules of the organization certified by the Industrial Registrar as at 11 March 1982 were tendered. Relevant rules as so certified are:

" 50. BRANCH ELECTIONS

(a) Elections for all branch Executive positions including the office of

Secretary/Federal Councillor, Federal Executive Member or as the case may be Secretary/Treasurer/Federal Councillor/Federal Executive Member shall be conducted triennially.

(b) . . . . . . . .

(c) Only those members financial at the date of calling for nominations

and who were financial on the last day of the preceding quarter, shall be eligible to be included on the Roll of Voters for branch elections.

(d) . . . . . .
9. UNFINANCIAL MEMBERS

(a) A member who has not paid contributions in accordance with Rule 3 and

8 of these rules and (d) hereof shall be deemed to be an unfinancial member and shall remain an unfinancial member until such time as all contributions including any fines, levies or other monies payable by him have been paid and for a period of one calendar month thereafter (emphasis added).

(b) An unfinancial member shall not be entitled to :-
(i) Any of the rights privileges and benefits of the Association,
(ii) Hold any office in the Association,
(iii) Nominate for election to any office,
(iv) Nominate any candidate for election to any office,
(v) Look on any matter,
(vi) Receive notice of any meetings,
(vii) Take part in any meeting or proceedings connected with the

Association,
(viii) Receive copies of any journals, reports or documents issued by the Association.

(c) . . . . . .

(d) . . . . . .

8. CONTRIBUTIONS

(a) Contributions shall be such as shall be fixed from time to time by the

Federal Council . . . .

(b) Contributions for any year shall fall due on the first day of January in the year and shall be payable in advance. They may be paid yearly or half-yearly or, where a branch Executive so decides, quarterly. Payment of Contributions must be made as follows:
(i) In the case of half-yearly payments within one calendar month of January 1 or July 1 in each year.
(ii) In the case of quarterly payments within one calendar month of January 1, April 1, July 1 or October 1 in each year.

(c) Notwithstanding other provisions of this Rule, a branch Executive may authorise the branch Secretary to make arrangements with an employer (including any government department) for deduction, on the signed authority of a member, the form of which is acceptable to the branch Executive, of amounts by way of Contributions from the wages or other monies payable to the member. As long as such authority remains in force, the member shall be deemed to be financial notwithstanding that his payments are not made in advance.

(d) . . . . . .

(e) Any member who fails to pay his Contribution prior to or upon the date

on which such Contribution falls due may be required thereafter to pay an additional Contribution not exceeding five dollars per month for that period in respect of which he has so failed to pay the whole of the Contribution due.

(f) . . . . . .

(g) Payment of any sum due by any member to the Association under these

Rules may be postponed, reduced or forgiven by the Federal Council, Federal Executive or the Executive of the branch to which the member is attached if the member proves that on account of distress, sickness, unemployment or other good cause he is not able to fulfil his obligations in respect of such payment.

3. DEFINITIONS

Unless the context otherwise requires, the following construction shall be

applied throughout these Rules:

(a) to (f) . . . . . .

(g) "Quarter" means those three month periods ending March 31, June 30,

September 30 or December 31 in any year.

(h) "Half-year" means those six month periods ending June 30 or December 31 in any year.

(i) . . . . . ."

CANDIDATES - Continuously financial for 12 months prior to nomination

Rule 47(c) prior to December 1980 -

It is convenient at this stage to deal with an issue raised in respect of

r.47(c). It was agreed by the parties that prior to December 1980 the sub-rule read:-

"47. RULES FOR THE MANAGEMENT OF STATE BRANCHES
(c) All candidates for election to the branch Executive must be financial

members of the branch concerned in addition to which such member must have been a continuously financial member for a period of twelve months prior to the date of nomination. In the case of the branch President, a candidate for election shall have, at the date of nomination, completed two years on the Executive of the branch provided that in the case where no member eligible for election to the position of branch President nominates the eligibility provisions relating to branch Executive shall apply." (emphasis added).

On 11 December 1980 the organization filed in the office of the Industrial Registrar an application for alterations to rr.5, 8, 9, 13, 14, 16, 17, 20, 35, 47, 48, 51 and 65 of its rules, together with a Statutory Declaration of Mr Stapleton as Federal Secretary of the organization. (see folio 240 of the Industrial Registrar's register in respect of the organization).

The said application (inter alia) reads:-
"Application is hereby made by the Australian Theatrical and Amusement

Employees Association for consent to the change of its rules in the following respects: 1. to 10. . . . . . .
11. That sub-clause(c) of Rule 47 be deleted and the following sub-clause substituted:

(c) "All candidates for election to, and members of the Branch Executive must be financial members of the branch concerned and shall have been continuously financial for a period of twelve months prior to the date of nomination. In the case of Branch President a candidate for election shall have completed at the date of nomination, two years on the Executive of the branch provided that in the case where no member eligible for election to the position of Branch President nominates, the eligibility provisions relating to the Branch Executive shall apply."(emphasis added)

On 1 June 1981 the Industrial Registrar wrote to the Federal Secretary of the organization concerning the said alterations lodged on 11 December 1980. Such letter contains the following paragraphs:-
"Sub-section 47(c) provides that all candidates for election to, and members of the Branch Executive, shall have been continuously financial for a period of twelve months prior to the date of nomination. That provision raises two matters.

Firstly, I refer you to a decision of the Industrial Division of the Federal Court of Australia in Lovell -v- Federated Liquor and Allied Industries Employees Union of Australia (10 November 1978), wherein it was held that a rule that required candidates to be continuously financial for a certain period in order to be eligible to nominate for office was contrary to section 140(1)(c) of the Act. In view of the Court's decision, the word "continuously" has been deleted from sub-rule 47(c).

Secondly, the comments of Mr Justice Smithers in Leveridge -v- Shop, Distributive and Allied Employees Association (31 F.L.R. at p.403) and in Allen -v- Townsend (31 F.L.R. at pp.456, 457) concerning the distinction between restrictions on candidature for election to councils and committees with numerous members and restrictions on candidature for important offices, such as secretary and assistant secretary, are relevant to the period of twelve months specified by sub-rule 47(c) insofar as that period is applicable to members of the Branch Executive. It was held in each of the abovementioned cases that to exclude the participation of shorter term members from participation in bodies of numerous members was unreasonable and oppressive. I suggest therefore that consideration be given to altering sub-rule 47(c) in accordance with the Court's findings. A qualifying period not in excess of three months for candidates for election to the Branch Executive would be acceptable. You may wish to discuss this matter with Mrs R. Hansen of this Office."

Also on 1 June 1981 after setting out the fact that the particulars of alterations of the rules referred to above had been lodged on 11 December 1980 the Industrial Registrar issued his certificate pursuant to s.139(4) of the Act as follows:
"In my opinion the alterations, with the exception of the alterations to sub-rule 8(e), sub-rule 9(d), sub-rule 35(b), the word "continuously" in sub-rule 47(c) and the alteration to sub-rule 48(e)(ix), comply with and are not contrary to the provisions of the Act, the Regulations or of an Award, are not otherwise contrary to law and have been made in accordance with the relevant procedures laid down by the rules of the organization. I certify accordingly in pursuance of sub-section 139(4)."

It is clear that the above certificate has been treated by members of the Industrial Registrar's office as having certified the amendment to r.47(c) with the word "continuously" deleted therefrom. The rules of the organization as tendered herein and certified by the Industrial Registrar as at 11 March 1982 show r.47(c) in its amended form but with the word "continuously" omitted.

It was submitted that the striking out of the word "continuously" by the Registrar in such circumstances was beyond power given to him by s.139(4) of the Act and that the Industrial Registrar, having formed the view that the sub-rule as lodged for certification was contrary to the provisions of the Act, had no alternative but to disallow the amendment in toto. Accordingly, so the argument ran, his certification of r.47(c) with the word "continuously" omitted was ultra vires and void. It was further argued that it followed that as the rule-making body of the organization at the time of adopting rule changes in 1980 had in fact adopted a resolution deleting the old r.47(c) before adopting the new r.47(c) and as the Industrial Registrar had in fact deleted the old r.47(c) in June 1981 the rules of the organization on and after 1 June 1981 contained no r.47(c).

Assuming the Industrial Registrar had, of his own motion, deleted the word "continuously" from sub-r.(c) of r.47 on 1 June 1981 then such deletion in my view would have been void. Section 139(4) of the Act does not permit the Industrial Registrar in the circumstances under discussion here to delete a word or a phrase from adopted rule amendments of his own motion (contrast the position under s.140(8)). If he is of the opinion that a particular word or phrase in a rule or sub-rule amendment makes that rule or sub-rule contrary to the Act etc. he should refuse certification of the rule or sub-rule with the consequence that the amendment has no effect.

On the other hand I am of the view that the resolution of the rule-making body of the organization adopting the deletion of former r.47(c) would have been conditional upon the Industrial Registrar certifying the new r.47(c). Accordingly r.47(c) for the purposes of this inquiry is as set out above under the heading "Rule 47(c) prior to December 1980". The sub-rule, in such form, was the subject of a challenge in the inquiry, by Mr Kenzie's clients, the allegation being that the sub-rule contravened s.140(1)(c) of the Act.

Conduct of the election

It will be seen that the critical date for determining whether a member is financial for the purpose of a branch election is the date of calling for nominations (r.50(c)). That date in the subject election was 4 January 1982. It was agreed by all parties herein that under the rules as certified the last day by which members must have paid all subscriptions necessary to make them financial and so eligible to vote in the subject election was 30 November 1981 (rr.50(c), 9, 8 and 3). (That is, 31 December 1981 less one month (r.9(a))). But r.9(a) was also challenged, it being alleged that the sub-rule contravened s.140(1)(c) of the Act. 42. CONDUCT OF ELECTIONS
"A.The Federal Returning Officer or as the case may be, the branch Returning Officer shall:-

(a) . . . . . .
(b) (i) . . . . . .
(ii) Two months prior to the final date by which all members must have

paid all subscriptions necessary to make them financial and so eligible to vote in accordance with (g) hereof, the Returning Officer shall cause to be circulated to all members, financial or not, a notice which shall advise:

(aa) that an election is to be held.
(bb) the offices to be elected.
(cc) the qualifications for candidates for office.
(dd) the qualifications of electors, including the date by which all

membership subscriptions shall be paid in order that the member will be eligible to vote in the election.

(ee) the dates between which nominations are to be received.
(ff) the method by and manner in which nominations are to be lodged. (gg)

the dates between which the election shall take place. (hh) the date on which the election shall be declared."

After several requests to the Branch office in Sydney the Returning Officer eventually received from Mr Stapleton during the latter half of September 1981 a set of membership cards listing all the 5973 members of the Branch (both financial and unfinancial) and their addresses. Between 29 September 1981 and 1 October 1981 the Returning Officer by pre-paid post sent to each of those members a notice dated 29 September 1981 in the form provided for by r.42A(b)(ii). Included in such notice was a note which read:
"Note: Pursuant to r.50(c) to be eligible to vote membership subscriptions must be paid by 30 November 1981"

Roll of Voters

On 19 January 1982, it then being apparent that a ballot would be

necessary, the Returning Officer wrote to Mr Stapleton as Secretary of the Branch issuing directions pursuant to s.170A(1) of the Act, that he be provided with a certified list in duplicate signed by the Secretary showing the name and postal address of each and every member of the branch who was financial in accordance with r.50(c). The form of the required certificate was set out in his letter.

On 27 January 1982 the Returning Officer received from Mr Stapleton a computer print-out plus a further list of names, together with a certificate signed by Mr Stapleton. Mr Stapleton stated in evidence that the computer print-out consisted of both full-time and casual employees whilst the second list was a copy of a book containing the names and addresses of "outdoor" employees. These classifications are discussed later herein. Certain names had been deleted from such lists prior to their receipt in the Australian Electoral Office. Those two lists became exhibits in the inquiry. On 28 January 1982 the Returning Officer received approximately 2,000 cards from the Branch which he understood were cards of financial members attached to the Branch whose names were not on either of the two lists delivered on the previous day. Following a conversation with Mr Stapleton as to the possibility that such cards may have to be kept by the Returning Officer for one year after the completion of the election (s.170A(5)), Mr Stapleton provided the Returning Officer with a third list containing the names and addresses of the members whose names appeared on those cards. On receipt of this third list the cards were returned to Mr Stapleton. This third list was also an exhibit in the inquiry and was stated by Mr Stapleton in his evidence to be a list of those members who had signed acceptable authorities for deductions of contributions by employers which were in force at relevant times (see r.8(c)).

Mr Stapleton's certificate referred to above is dated 27 January 1982 and reads:
"I hereby certify that I have forwarded to the Australian Electoral Office a list containing names and postal addresses of each and every member of the Australian Theatrical & Amusement Employees' Association (N.S.W. Branch) who is financial in accordance with Rule 50C(sic) of the registered rules of the above Association."

Rule 60 makes provision for a roll of membership. Sub-rule (a) provides that a register of the names of the officers and members residing in each State (as far as is known), be kept at the office of the Branch and be open for inspection. Rule 57 sets out the duties of Branch Secretary. He shall: (c) keep proper books of account of all monies received and expended by or on account of the branch; (h) keep a register of all members resident in the State; and (o) attend to all branch affairs which require secretarial attention.

The rules of the organization make provision for a secret postal ballot within the meaning of the Act (r.42). Rule 42A(g) provides that the Branch Returning Officer shall prepare a roll of voters (who shall be financial members entitled to vote in accordance with the rules) at least 14 days before the date determined for the commencement of the ballot. There was no Branch Returning Officer appointed by the Branch Executive in accordance with the rules prior to the request by the Branch for the s.170 election.

Notwithstanding anything contained in the rules of an organization a returning officer conducting an election under s.170 of the Act is given wide powers under s.170A(1). He may take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in the election or to remedy any procedural defects in the rules of an organization. In practice officers of the Australian Electoral Office who conduct s.170 elections in organizations give directions to secretaries of organizations or their branches to forward to them as returning officers certified lists of members eligible under the rules to vote in particular elections. Failure to comply with any such direction is an offence under the Act, the penalty being a fine or imprisonment up to 6 months or both (s.170A(2)).

A union secretary whose duties include a duty to keep financial records of the branch and a list of members attached to the branch is in my view the most suitable person to be called upon by the Returning Officer pursuant to s.170A(1) of the Act to compile and certify a roll of voters. True it is that rules of organizations making provisions concerning the conditions under which members become unfinancial vary and are often confusing but in practice each particular secretary generally is aware of the branch office procedures, has recourse to legal advice and, knowing the approximate date of forthcoming elections well in advance, has ample opportunity to supervise the compilation and checking of a roll of voters by office staff.

In this particular organization the rules make provision for a membership covering an extensive range of employees. Members fall into different classifications. A different rate of contribution has been set for full-time, casual and "outdoor" members. Members may have their contributions deducted by certain employers from their wages(r.8c). In practice members who have in fact paid their contributions in advance may under certain circumstances be placed on what is known as "suspense". These matters are referred to later herein but highlight the necessity of having some official available to certify the correctness of a roll of voters. Here, that official rightly was the Branch Secretary.

CONTRIBUTIONS - Scale of - How Collected

Rule 8(a) provides that the rate of contributions payable by members is to be that as fixed from time to time by the Federal Council of the organization. The Council at its 1980 Annual Federal Council meeting determined that the New South Wales Branch of the organization be authorised to increase rates for 1981 and 1982 as follows:-

1981 1982
---- ----
Full-time and Freelance members $72.00 $80.00
Casual employees $44.00 $50.00
Outdoor employees $18.00 $20.00

During the inquiry it was discovered that the rate of contributions charged

during 1981 was in excess of the rate fixed by the Federal Council. For example, Mr Stapleton had circulated casual members incorrectly stating that fees were $48 and not $44. This fact necessitated examination of the records of such members in the three lists of members tendered and those who were shown as owing small amounts had to be closely checked to ensure that no member had been treated as unfinancial when in fact he had paid sufficient monies to cover the proper subscription for that year, namely $44.

In addition there had been a practice for many years within the organization that so-called "junior members" pay half fees. The rules make no provision for such members or for such a practice. There was no evidence before the inquiry as to the actual number of members who in fact may have paid contributions at half rate and who may have been treated as financial for the subject election. These matters are raised only to illustrate the difficulties that could well have been experienced in preparing a valid roll of members by a returning officer unfamiliar with the procedures and office systems in the Branch. The same difficulties were encountered by counsel representing the parties in their endeavours to demonstrate the actual number of members (if any) who either were forwarded ballot papers when they were unfinancial or were not forwarded ballot papers when they were financial.

Contributions in practice were collected in any one of the following ways; payment over the counter at the Branch office; collection by organizers or delegates on a particular job or site and then either posted or delivered to the Branch; by mail from the member direct; by deduction by the employer of a pre-determined percentage of the gross wages paid to members (for example a casual member employed on race days by the Australian Jockey Club would have 1% deducted from his wages for the day. Similarly a casual usherette employed at a particular cinema). In all cases other than deductions, receipts are issued to members on receipt of payment. The evidence, which is accepted, is that at particular times of the year, possibly because of the number of contributions being received in the office of the Branch by mail, a back-log of some days would occur before a particular item would be processed so that the dates shown on the copy of receipts held within the Branch office would not necessarily be the dates on which moneys were actually received. These dates, on the evidence, could be up to 7 days after receipt depending upon whether a week-end intervened or whether some Branch employees were absent on flexi-time.

Total voting in subject election

In the subject election the returning officer forwarded 4762 ballot papers out to members. 410 envelopes were returned unclaimed. In all 1648 completed ballot papers were returned, representing a return of 37.85% of those members who had apparently received ballot papers. This, in the experience of the Court, is a reasonably high percentage for union elections conducted under s.170 of the Act.

As stated earlier herein the application for the inquiry was lodged by Mr Stapleton on 5 March 1982. On 9 March 1982 the Industrial Registrar referred the application to the Court pursuant to s.159(4) of the Act.

On 11 March 1982 a notice of motion was filed in the Court by the applicant seeking the following interim orders: (i) an order restraining the Returning Officer from presenting his report concerning the said election to a general meeting of members of the Branch which was due to be held on Sunday, 14 March 1982; and (ii) an order that the persons who had held office in the Branch prior to the said election continue in office. An affidavit by Mr Stapleton was filed in support of the motion. On 11 March 1982 the Court (Morling J.) granted ex parte orders as sought, such orders to remain in force until 4.15 p.m. on 16 March 1982 when the application for the inquiry was to be listed for directions.

On 16 March 1982 Mr W. Haylen of counsel, who had appeared on behalf of the applicant on the ex parte application before the Court on 11 March 1982, again appeared. Mr R. Kenzie of counsel appeared for certain of the successful candidates. Submissions in regard to the continuance of the interim orders made on 11 March 1982 were heard on that and the following day when the Court as presently constituted vacated the orders of Morling J. and thereafter gave directions as to the filing of points of claim and points of defence.

The applicant's points of claim were filed 26 March 1982. It was claimed that 55 persons (unnamed) had been crossed off the roll of voters and consequently not sent ballot papers when in fact they were financial; that 16 persons (unnamed) were sent ballot papers when they were not financial members; that 3 persons (unnamed) who were resident in a State other than New South Wales were sent ballot papers; that 28 persons (unnamed) were sent ballot papers at their place of work and not to a residential address; that 40 persons (unnamed) were sent ballot papers at a time insufficient to allow the ballot paper to be returned by post; that Mr Jenkins, a candidate for the office of Secretary and Ms L. Gailey, a candidate for the office of Vice-President had not been admitted to membership of the organization in accordance with the rules and were therefore not entitled to be candidates; that Mr McGill, a candidate for the office of Assistant Secretary and Mr Taylor, a candidate for the Executive had both become unfinancial during the course of the ballot; that Mr Bienstock and Mr Hensler candidates for the Executive were ineligible to nominate for office in that they did not have continuous financial membership for a period of 12 months prior to the date of nomination as required by r.47(c) and that both the notice calling for nominations and the ballot paper failed to indicate all the positions to be filled by the election of the Branch Secretary in that the rules provided that the Branch Secretary was ex-officio a Federal Councillor (r.11(a)) and ex-officio a member of the Federal Executive (r.17(c)). A further ground was subsequently not pressed. Further and better particulars of the above allegations were supplied before and during the hearing of the inquiry.

Points of defence filed on behalf of the successful candidates represented by Mr Kenzie raised, as a defence to the claimed irregularities in the roll of voters, a defence that the applicant, Mr Stapleton as Secretary of the Branch, having certified the accuracy of the roll of voters as set out above was estopped in this inquiry from denying the accuracy of such roll. In the alternative, the points of defence challenged the allegations of irregularities in the roll of voters which irregularities had been particularised subsequent to the filing of the points of claim.

As the inquiry progressed challenges were made almost daily to the roll of voters by the counsel representing the applicant. Such challenges necessitated searches of the records including receipt books and the like by certain of those persons who had been successful in the subject election who were of course then quite unfamiliar with the office accounting and card systems which had been in force in the Branch office for several years. A Mr White who is and has been employed by the Branch as its Accounts Clerk for some years gave assistance where possible but for some time during the inquiry he was absent from Australia on holidays, the trip having been arranged prior to the election. As a consequence the roll of voters was subjected by all parties to the most thorough and exhaustive examination experienced by the Court as presently constituted. This was time-consuming not only outside Court hours but also, of necessity, during Court hours. The above remarks should not be construed as a criticism of any one of the parties or their representatives and was to be expected in all the circumstances especially as the voting was as close as it was for the office of Branch Secretary.

The net result of such examination of the roll of voters was that:-

(a) Mr Kenzie, on behalf of some of the successful candidates, conceded that 17 named members received or failed to receive ballot papers contrary to the rules; and (b) Mr Haylen, on behalf of the applicant, claimed:-

(i) 31 named members (in addition to the 17 referred to in (a) above) either received or failed to receive ballot papers contrary to the rules, and

(ii) some additional 83 named members employed by the Capitol Theatre who were on "deductions" were omitted from the roll and consequently failed to receive ballot papers.

Claims (i) and (ii) above were denied by those successful candidates who were parties to the inquiry.

Further, the points of defence challenged the validity of r.9(a) and r.47(c) alleging that both sub-rules contravened s.140(1)(c) of the Act; denied that the forwarding of ballot papers to the place of work of members where that address was the only address known to the Branch was an irregularity and generally denied each of the other matters raised in the points of claim. In addition, during the hearing of the inquiry it became apparent that the financial status of Mr Stapleton at relevant times was doubtful and such status became an issue in the inquiry. These various matters are now considered.

Attack on Rule 9(a)

This sub-rule is set out earlier herein. Mr Kenzie submitted that the inclusion of the phrase "and for a period of one calendar month thereafter" was in effect a penalty imposed upon a member for late payment which in the circumstances of the rules in general imposed upon members conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of registration of organizations under the Act were oppressive, unreasonable or unjust and consequently contravened s.140(1)(c) of the Act. In my view this submission is valid. The rules make provision for the imposition of a pecuniary penalty for late payment of subscriptions (r.8(e)). The evidence was that the Branch Executive from time to time resolved that certain members be so fined. Sub-rule 9(a) may effectively take away a member's rights including his right to participate in an election for a period of up to a month when in fact he has paid his contributions in advance. In addition it is clear from the evidence that a reasonably substantial number of members were disenfranchised in the subject election as a result of the qualifying period provided for in the sub-rule.

The applicant had maintained the validity of the sub-rule throughout the hearing of the inquiry right up until the second last day. The inquiry extended over a period of some 6 months. On the second last day during his final submissions Mr Haylen indicated that he was instructed that Mr Stapleton conceded that r.9(a) contravened s.140(1)(c) of the Act.

It should be noted that the determination in this inquiry that r.9(a) contravenes the Act in the manner stated does not have a general effect. The sub-rule still remains in the certified rules of the organization until amended either at the request of the organization or by a declaration of the Court pursuant to s.140(5G) or amended by the Industrial Registrar pursuant to s.140(8) following an application by a member under s.140 of the Act (see generally Linehan -v- Transport Workers' Union of Australia, Northrop J., 27 July 1981, presently reported in (1981) Law Book Company's Industrial Service, Current Review 570 at p.575-6).

Attack on Rule 47(c)

It will be recalled that Mr Kenzie had submitted that because of the action taken by the Industrial Registrar on 1 June 1981, when he deleted the old r.47(c) and then certified the new r.47(c), deleting the word "continuously" therefrom of his own motion, the proper rules of the organization contained no r.47(c) at all. This submission has been rejected. The Court has determined that the rules of the organization at all relevant times did contain a r.47(c) in the form set out earlier herein under the heading "Rule 47(c) prior to 1980". That sub-rule contains the word "continuously" so that members who wished to be a candidate for election to the Branch Executive should according to the sub-rule have been continuously financial for a period of 12 months prior to the date of nomination. This in fact was the qualification set out in the notice sent to all members in September/October 1981 and applied by the Returning Officer in deciding the validity of the nominations for office lodged in January 1982.

Mr Kenzie submitted that if the Court, as it has, determines that the rules of the organization contain a r.47(c) with the word "continuously" therein then such sub-rule is contrary to s.140(1)(c) of the Act. In support of this assertion he relied on the principles laid down in Leveridge & Ors. -v- The Shop Distributive and Allied Employees Association, [1977] FCA 9; 31 F.L.R. 385 and Lovell -v- Federated Liquor and Allied Industries Employees Union of Australia, [1978] FCA 43; 35 F.L.R. 72.

It is clear from the evidence that there is a substantial turnover of members in the New South Wales Branch of the organization. The minutes of various Executive Meetings which were before the Court show the number of members admitted to or resigning from the organization from time to time. In most cases such minutes show the total membership of the Branch at that time. This varies from meeting to meeting but for some time before and up until December 1981 the total membership figure was shown to be in excess of 7,000 members. It will be recalled that at the direction of the Officer attached to the Australian Electoral Office who was conducting the election, Mr Stapleton as Secretary of the Branch had supplied the Returning Officer with the cards of members of the Branch, both financial and unfinancial, in order that particulars of the subject election could be posted to members two months before the last day for payment of subscriptions (see r.42A(b)(ii)). The Returning Officer has given evidence (which is accepted) that the total number of such cards was 5793. Again it will be recalled that the total number of ballot papers sent out to financial members totalled 4762.

Calculations by Mr Kenzie based on various figures in evidence purporting to be the Branch membership from time to time together with those showing the turnover of members at the Capitol Theatre, Sydney supported his argument that the turnover of membership was probably in excess of 30% of the total membership. On the other hand Mr Haylen put the turnover of membership as low as 18%. On balance the Court is of the view that such turnover is in excess of 30%.

There was evidence of the large number of members who were casuals working within both classifications of indoor and outdoor members. A large percentage of such "indoor" casuals were university students or high school students who came into the industry during vacation or school holidays (especially the long vacation) to work as usherettes and the like. A lot of these casual employees remained members for a relatively short time and only for the one period. On the other hand there was evidence that there were a large number of casuals known within the industry as permanent/casuals. These were regular usherettes at the cinema complexes in the metropolitan area.

In respect of the "outdoor" casuals such as those members employed at horse race meetings, dog races, trotting races and the like the evidence showed that even though these members were more static, their rate of pay over recent years has been such that several members have dropped out because their earnings as such casuals combined with other earnings meant that the tax on their total earnings made it unprofitable to continue with the casual work.

Again the very nature of the industry itself is such that there is a high general turnover of membership. Having considered the observations of the Court in Leveridge's case and Lovell's case I am satisfied that in all the circumstances the inclusion of the word "continuously" in sub-r. 47(c) does impose conditions and restrictions which having regard to the objects of the Act are unreasonable and unjust. Accordingly r.47(c) in that form contravenes s.140(1)(c) and is invalid. In this respect the remarks of the Industrial Registrar in his letter of 1 June 1981 to the Secretary of the organization regarding r.47(c) are relevant.

The Court does not repeat the observations made earlier in respect of r.9(a) as to the future effect of the determination in this inquiry that a rule contravenes the Act.

Effect of determination that Rules 9(a) and 47(c) are invalid

Having determined that rr.9(a) and 47(c) were invalid at relevant times I am of the opinion that irregularities have occurred in the subject election and that having regard to such irregularities the result of the election may have been affected (see s.165(3) and (4)).

In this regard I respectfully adopt what was said by Smithers J. in Allen and Sherriff -v- Vehicle Builders Employees' Federation of Australia, (1978) 22 A.L.R. 510 where at p.517 his Honour stated:
"Except in special cases (e.g. s.170) the returning officer must conduct an election according to the rules of the organization and this means the valid rules. When this returning officer announced that nominations must be in accordance with the rules of the organization he was to be understood as referring to the rules of the organization, whatever they might be, and to the valid rules of the organization. No doubt he would have his own views as to what rules were valid and how those rules which he considered valid should be interpreted. But the ultimate question of the validity of any particular rule would not depend on his views. It was for members who wished to nominate to decide for themselves whether in accordance with the valid rules they were entitled to do so, and if they so decided to lodge their nominations accordingly. At that stage the returning officer would have to accept or reject the nominations. He would have to do this according to his view as to the content of the valid rules. Members might form their own opinion as to what rules the returning officer would regard as valid, but they could not reasonably act on the basis that his view was conclusive. Most of them no doubt would consider that the rules were in the rule book. In this they may in any case be in error and in this case would have been in error. And in this case the returning officer may himself have been in error. If the returning officer enforced a rule which was invalid and thereby rejected a nomination, there would be an irregularity which could be put right by the court as was done in Leveridge's case."
(see also Leveridge's case (supra.) @p.425-6). Further in Re Election for Office in Amalgamated Engineering Union, Australian Section, (1963) 4 F.L.R. 325 @ p.328 Joske J. stated:
"The second matter or irregularity in connexion with the circular arises in relation to the qualifications of candidates as set out therein. The statement of qualifications was accurate at the time the circular was issued but, as a result of a decision of this Court enabling industrial members of the organization to qualify as candidates, it subsequently became inaccurate and misleading, but nevertheless the election was allowed to proceed. It may be that certain members of the union became aware of the change in qualifications and were not misled by the circular, but it is quite impossible to say that a substantial number of members may not have been misled and that persons may not have nominated who would have nominated if they had known they were eligible as candidates and that the election may not have been affected as a result. The proper course would have been to call the election off and to have started all over again free from the embarrassing circular. However, no attempt was made to have a new election. For this reason also the election must be declared void."

There was evidence in the present matter that the Returning Officer rejected a nomination for one of the offices because the nominee had not been continuously financial for 12 months prior to nomination. As has been pointed out earlier herein those Branch employees who had assisted in the compilation of the roll of voters treated r.9(a) as valid with the result that several members were struck off the computer list and the other lists of members and as a consequence were disenfranchised in the ballot.

In view of all the circumstances and particularly bearing in mind the relative closeness of the ballots for the various offices the Court after giving deep and lengthy consideration to all aspects of the case determines that a fresh election, including the calling of fresh nominations for all offices should be held. On the publication of these reasons for judgment it is intended to stand the matter over for a short while so that the parties can make submissions as to the proper orders that should be made bearing in mind the question of the synchronisation of elections within the organization generally. Further the Court will hear submissions from all parties and from the Branch President whether the Court should order that such fresh nominations should include nominations for Branch President.

As the Court intends to order a new election it is felt that observations in respect of certain other alleged irregularities should be made.

Grounds (1) and (2) of the Application and the Points of Claim

These two grounds deal with the allegations that ballot papers were forwarded to members who were not entitled to vote or that ballot papers were not forwarded to members who were entitled to vote.

In view of the Court's determination that a new election is to be held it is not necessary to make determinations in respect of each of the particular named members who were alleged to fall into one or other of the two categories. A lot of the difficulties in this regard arose from the fact that the dates shown on copies of receipts of payment of contributions held by the Branch are not necessarily the dates when those contributions were in fact received in the Branch office or given to Branch delegates or organisers. How this is to be avoided in future is a matter for the Branch itself but urgent consideration should be given to the matter by the officials of the Branch so as to avoid any repetition of the problem.

The Court however feels that some observations should be made in relation to two matters which may be of assistance to returning officers in future elections in the Branch.

The first of such matters concerns those members on "deductions". In the present inquiry there was no acceptable evidence that the Branch Executive had made any determination authorising the Branch Secretary to make arrangements with any employer to make deductions of contributions from members wages in accordance with a format which was acceptable to the Branch Executive (see r.8(c)). But assuming such authorisation, an employer who makes the proper deductions in accordance with a current valid authorisation would be acting as the agent of the Branch. Accordingly, where an employer makes such a deduction from a member's wage then that member would be deemed to be financial whether the money has been received in the office of the Branch or not (see In the Application for an inquiry into an election for an office of the Federated Liquor and Allied Industries Employees' Union of Australia, (unreported) judgment given 1 November 1976 - Smithers J.).

The second matter concerns members being "on suspense". Apparently there has been a practice within the Branch which has been in force for some years that some members are from time to time put "on suspense" after completing a form known as a "letter 8" form.

An example of such a letter taken from amongst those tendered in evidence reads:

"To: The Secretary,
Australian Theatrical and Amusement
Employees' Association,
(N.S.W. branch)

I apply to have my membership of the Association suspended from the end of

. . . . . . . . . . . . . (production) on . . . . . . . . . . . . (date) and agree to notify the Association when I resume employment.
. . . . . . . . . .

(Signature)"

There is no rule specifically dealing with placing members "on suspense". Mr Stapleton gave evidence that because of the turnover of members the practice of accepting a letter in the form set out above so as to permit a person to leave the organization temporarily at the conclusion of some production or show had developed. When that member takes up employment in the industry again (usually on a casual basis) he does not have to re-join the organization thus obviating the necessity of completing a fresh application form and complying with the procedures laid down under the rules for entry into the organization. Apparently the practice is such that a member can not be placed "on suspense" unless he has paid all contributions up until the date of the letter asking to go "on suspense". Mr Stapleton in his evidence claimed that a member who goes "on suspense" is deemed to be unfinancial until he returns to the industry at which time, should he have paid subscriptions for a period beyond the date of the letter requesting to go "on suspense", he would be credited with that portion of the subscription paid by him which related to the period of time after the date of such letter. This had occurred in several cases examined during the inquiry. Members had paid subscriptions to 31 December 1981. As at 30 November 1981, they were clearly financial. Their "letter 8" forms were dated between 1 and 31 December 1981. According to Mr Stapleton's evidence such members were treated as unfinancial.

As stated, this practice was apparently thought to fall within r.8(g). This in my opinion is doubtful but in view of the determination that a fresh election is to be held the Court does not think that a definitive determination in this regard should be made on the evidence before this inquiry.

Ground 11 of the particulars filed with the application was dealt with in paragraphs (11) and (12) of the points of claim filed by the applicant. It was alleged that both the notice calling for nominations and the ballot paper failed to indicate all the positions filled by the election of the Branch President and the Branch Secretary (see rr.11(a) and 17(c)).

In view of the decision in Airline Hostesses case [1980] FCA 110; 48 F.L.R. 214 no submissions were made in this regard by Mr Haylen.

Ground 9 of the Application

This ground alleged that the applications for membership of Mr Jenkins and Ms Gailey did not comply with the rules of the organization in that their forms did not contain signatures of a proposer and/or seconder. Rule 6(a) of the rules of the organization makes provision for a form to be signed by a proposer and a seconder and the applicant and prescribes a procedure for the processing of such application form. The rule then provides "no error, omission or want of form in connexion with any application for, or admission to membership shall invalidate membership". Accordingly this allegation is rejected. In any event in the case of Mr Jenkins the minutes of the Executive Meeting held on 6 June 1976 show that he was then admitted to membership. This being more than 4 years before any relevant date, the act of admitting him to membership is for all purposes deemed to have been done in compliance with the rules of the organization (s.171F).
Grounds 8 and 9 of the Points of Claim

These two grounds respectively deal with Mr McGill and Mr G. Taylor, the successful candidates for Assistant Secretary and an Executive member. It was claimed that each became unfinancial during the course of the ballot and therefore not entitled to continue as a candidate in the election. This submission is rejected. In my view on the proper construction of the rules either as applied by the returning officer or as determined by the Court in these reasons for judgment each was financial at the time of nominating. In any election where there is a cut-off date when the financial status of candidates for office is determined and the rules of an organization are silent as to the effect of a candidate becoming unfinancial after such cut-off date then it is of no concern of the returning officer what a candidate's financial status is after that date. Should a successful candidate become unfinancial after nomination and the rules proscribe that an unfinancial member hold office then any member may apply to the Court under s.141 of the Act for orders accordingly.

Ground 10 of the Points of Claim

This ground alleged that Mr Bienstock and Mr Hensler were not eligible to nominate as they did not have continuous financial membership for the 12mths prior to nomination. The Court having determined that r.47(c) is invalid in this regard the allegation is rejected.

Ground 5 of the Points of Claim

This ground alleged that 40 persons; and possibly more, were sent ballot papers at a time insufficient to allow their ballot papers to be returned by post.

The ballot closed on Tuesday, 23 February 1982. The evidence was that some 27 ballot papers were forwarded on 11 February 1982; 3 on 18 February and 19 on Friday, 19 February.

After the delivery by Mr Stapleton of the lists of members certified as being entitled to vote in the subject election on 27 and 28 January 1982, further names of members, whom Mr Stapleton, in covering letters, stated were eligible to vote, were forwarded to the Returning Officer on various dates up until 19 February. This came about as a result of members contacting the Branch Office or the Returning Officer querying whether their names were on the roll of voters. The Returning Officer has submitted that he could do no more than forward ballot papers out to those members referred to in Mr Stapleton's letters in the circumstances as outlined and that the Court in Troja -vAustralasian Meat Employees' Union (Victorian Branch), (1978) 23 A.L.R. 18 had observed that where a Returning Officer who extends the time in which ballot papers might be returned in circumstances where all members were not informed of such extension then such extension may itself be an irregularity causing the election to be void. These submissions are, in my view, valid. Certainly no criticism is made of the Returning Officer in this regard in the present inquiry. Each particular case would depend upon the number of ballot papers involved and the margin of votes that successful candidates obtained. As was stated by Spicer C.J. in Re elections into the Australian Workers Union (1964) 6 F.L.R. 427 @ p.439, s.165(4) of the Act provides an "ultimate test of considerable elasticity".

Financial Status of Mr Stapleton

Prior to 1972 Mr Stapleton had worked in the industry as a casual employee and paid contributions accordingly. In 1972 he became a full-time organiser employed by the Branch. In 1975 he was elected as the full-time Secretary of the Branch and in 1976 also became the Federal Secretary of the organization which is a part-time office. He held both the Branch and Federal offices of Secretary at the time of the subject election.

During the course of the hearing of the inquiry it was discovered that Mr Stapleton had paid his contributions for 1981 and 1982 by way of Bankcard at the rate applicable for a casual employee. As stated, Mr Stapleton's employment as Branch Secretary is full-time.

When asked why he paid only at the casual rate (less the reduction for prompt payment in accordance with the rules) he stated that as far as he knew it had always been the practice for the Secretary of the Branch to pay casual rates and that he believed there was a resolution by the Executive at some time before he became an official to that effect. No such resolution was produced to the Court. He also indicated that it was his belief that at the time when the Executive made such a decision it was also determined that full-time officers should not work in the industry. This ruling by the Executive was, he believed, the reason for its decision that such officers should only pay contributions at the casual rate.

Rule 8(a) simply states that contributions shall be such as shall be fixed from time to time by the Federal Council. The evidence is that the Federal Council fixed the contributions for members attached to the New South Wales Branch for the years 1981 and 1982 at the rate set out earlier herein. The rates provided for full-time employees, casual employees and outdoor employees.

In my view Mr Stapleton was at all relevant times a full-time employee and accordingly should have paid contributions at the specified rate for that classification, subject to any determination by the Federal Council to the contrary. There is no acceptable evidence before the Court that the Federal Council made any specific provision in regard to Mr Stapleton's contributions or those of Branch Secretaries generally during the relevant period.

Mr Haylen endeavoured to show that the fact that Mr Stapleton was a casual employee at the time when he was appointed a full-time organiser in 1972 governed the classification as to his rate of contributions thereafter. This, he argued, flowed from the eligibility rule at that time and thereafter. This submission is rejected. The rules provide that a candidate for the office of Secretary has to be a member of the organization. Rule 2, which makes provision for conditions of eligibility for membership of the organization, provides that the organization shall be composed of an unlimited number of employees employed in any kind of amusement whether outdoor or indoor or in and about the theatres, race courses . . . together with such other persons, whether so employed or not as have been elected officers of the organization and admitted as members thereof.

In my view Mr Stapleton on his election as Secretary of the Branch became a full-time member of the organization as a result of his election as such officer.

Accordingly on the evidence before the Court in this inquiry Mr Stapleton in January/February 1982 was unfinancial within the meaning of the rules either as then certified or as read in accordance with the determination made by the Court in respect of rr.9(a) and 47(c).

In view of the above findings it is unnecessary to make any definitive determination in respect of the other allegations of irregularities which were raised during the hearing of the inquiry including the allegation which had apparently been the primary submission of Mr Kenzie, namely that the applicant was "estopped" from challenging the accuracy of the roll of voters used in the subject election. Nor is it necessary to make a determination as to whether or not the Court conducting an inquiry under Part IX of the Act has the "residual discretion" referred to by Sheppard J. in Kelly -v- Amalgamated Metal Workers' and Shipwrights' Union, [1981] FCA 185; (1981) 56 F.L.R. 124 @ p.149.

Finally reference is made to a belated application by a Mr George Ryan, a member of the Branch, for leave to appear or be represented at the inquiry. Mr Ryan was a successful candidate for the office of Executive member in the subject election.

He had made a separate application for an inquiry under Part IX of the Act into the subject election by an application filed under s.159(1) of the Act dated 11 May 1982. His application was specifically limited to the one office, namely that of Branch Vice President.

Such application was referred to the Court by the Industrial Registrar pursuant to s.159(4) on 13 May 1982 and came on for directions before the Court as presently constituted shortly thereafter. Mr M. Moore of counsel appeared for the applicant and indicated that the application was limited to the office of Vice President and that the sole challenge was the financial status of the successful candidate, Ms Gailey at the time of her nomination. That application became matter No.28 of 1982 and was heard as a separate and distinct inquiry on dates during the currency of the hearing of the present inquiry. This was at the request of Mr Moore. Until 6 August 1982 he was always anxious to avoid having the matter heard with the present application.

The two issues raised in Mr Ryan's application were (i) the date when Ms Gailey's 1981 contributions were paid and, (ii) if such payment was later than 31 January 1981, the validity of r.47(c).

As stated it was not until 6 August 1982 that Mr Moore sought leave to appear on behalf of Mr Ryan in the present matter. This was some time after the conclusion of the hearing of the inquiry based on Mr Ryan's application. Judgment in that inquiry had been reserved pending the determination of the present matter. On 16 August 1982 Mr Moore's application to appear herein was refused, the Court then indicating that it would publish its reasons therefor in the present reasons for judgment.

At the time when Mr Ryan's application for leave to appear in the present matter was made it was apparent to the Court that the "estoppel" issue concerning the certification of the roll of voters by Mr Stapleton, having then been fully argued by Mr Kenzie, was a matter of some moment to Mr Stapleton's legal representatives. The Court at that time had before it the evidence in respect of Mr Stapleton's financial status but had not then heard full argument as to the validity of rr.9(a) and 47(c). It was patently clear that the purpose of Mr Ryan's application was to have another member before the Court as a party in order to avoid the possibility of Mr Stapleton's application for an inquiry being refused as a matter of discretion even though certain irregularities may have been found. Accordingly the Court in the exercise of its discretion refused the application for leave to appear.

As stated earlier herein it is proposed to adjourn this matter for a short period in order that the parties may peruse the reasons for judgment. The Court directs that the applicant prepare short minutes of orders he submits ought to be made and that a copy of such minutes be made available to Mr Jenkins, Ms Gailey and the Deputy Crown Solicitor on behalf of the Returning Officer, at least 48 hours before the matter is re-listed. The applicant is to give 7 days notice to all successful candidates in the subject election, including the Branch President, of the date when the matter is to be re-listed for hearing of the above submissions. In addition, the parties should consider what orders (if any) should be made pursuant to s.168 of the Act concerning costs.

These reasons for judgment are to be read in conjunction with the reasons for judgment in matter No.9A of 1982 which have been delivered this day.

The applicant Mr Ryan a member of the Australian Theatrical and Amusement Employees Association an organization registered under the Conciliation and Arbitration Act seeks an inquiry into an election held pursuant to s.170 of the Conciliation and Arbitration Act 1904 for the office of Vice President of the New South Wales Branch of the organization. The election was completed on 23 February 1982. The candidates for that election were Ms Lyn Gailey and Michael Taylor. Ms Gailey was the successful candidate, the Returning Officer declaring her elected to that office on 24 February 1982.

When the matter came on for hearing Mr Moore of counsel appeared for the applicant; Mr Haylen sought leave to appear on behalf of Mr Damien Stapleton an unsuccessful candidate in the election (the applicant in matter No. 9A of 1982) and Mr Kenzie sought leave to appear for Ms Gailey. Leave having been granted those persons became parties to the inquiry (s.164(2)).

The challenge by the applicant was restricted to the validity of the nomination of Ms Gailey.

Rule 47(c) of the rules of the organization at relevant times provided that candidates for the particular office were required to be continuously financial for 12 months before the date of nomination. The applicant's claim was that Ms Gailey's annual subscription for the year 1981, which was the relevant year, had not been received in the office of the Branch before the end of January 1981 with the result that on 19 January 1982, the date of her nomination, she had not been financial for the required 12 months.

This fact was denied and as a second point of defence it was submitted by Mr Kenzie that should the Court determine that Ms Gailey's contributions were not received by the Branch on or before 31 January 1981 then it would be claimed that r.47(c) contravened s.140(1)(c) of the Act.

Rule 47(c) is set out in the reasons for judgment in matter No.9A of 1982 and is fully discussed therein.

Ms Gailey paid her 1981 contributions by cheque dated 21 January 1981. The duplicate receipt issued by the Branch is dated 3 February 1981. The cheque was presented at her bank on 6 February. It was claimed that her cheque, together with other members contributions were hand delivered by a Mr Ussher, an employee of the firm then employing Ms Gailey and those other members who had paid contributions, to the Branch office on 30 January 1981.

Having heard evidence as to the payment by Ms Gailey of her 1981 contributions together with that of Mr Ussher and Mr White the Accounts Clerk employed by the Branch of the organization and having perused her cheque, the relevant cheque butt and certain correspondence the Court is satisfied that her contributions for 1981 were received in the office of the Branch on 30 January 1981. Accordingly on 19 January 1982, the date when she nominated for office of Branch President of the Branch she was financial and under the rules of the organization was deemed to have been then financial continuously for a period in excess of 12 months. In any event the Court in matter No.9A of 1982 has determined that r.47(c) of the rules was at relevant times invalid for the reasons therein set out.

Accordingly the Court finds that the alleged irregularity in the present application did not occur and the application is dismissed. The Court certifies pursuant to s.168(2) that in all circumstances the applicant Mr Ryan acted reasonably in applying for the said inquiry.

These reasons for judgment should be read with the reasons for judgment in matters No. 9A of 1982 and No. 28 of 1982 delivered this day.

This is an application by John David Weston a member of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act) dated 19 August 1982 for an inquiry into the election for the offices of Branch Secretary/Treasurer, Branch Assistant Secretary, 12 Branch Executive Members and Branch President which was completed on 23 February 1982. The said election was held pursuant to s.170 of the Act. The particulars of the alleged irregularities were those which had been raised by Mr Stapleton as applicant in matter No.9A of 1982 together with a further allegation that r.9(a) of the rules of the organization contravened s.140(1)(c) of the Act at relevant times.

It will be noted that the present application was filed in the registry of the Industrial Registrar shortly after 16 August 1982 when an application by a Mr George Ryan seeking leave to appear in matter No.9A of 1982 was refused for reasons which are set out in the reasons for judgment in that matter.

When the present matter was called on on 7 September 1982 Mr Haylen appeared for the applicant; Mr Jenkins, the Secretary of the New South Wales Branch of the organization appeared in person and Mrs Pearson an officer of the Deputy Crown Solicitor's Office, Sydney appeared for the Returning Officer.

The transcript of proceedings for that day contains the following passage:
"His Honour: What is the position in this matter?

Mr Haylen: On the last occasion the matter was in for directions I

indicated that I would be seeking on the further mention to tender the transcript and exhibits in matter 9A of 1982 in this matter and would be making short submissions as to what should flow from this application. Your Honour ordered that all the candidates in the election, and the returning officer, be served with a copy of the application for an inquiry, and also that a notice of today's directions hearing, with an indication that the hearing in fact may be completed as at today's date be forwarded. That has been done by my instructing solicitor, and shortly I hope to be able to hand up to your Honour an affidavit of service.

His Honour: What is the object, to get this matter - No.36 of 1982 - in effect heard concurrently with matter 9A of 1982, but you are not adding Mr Weston as an applicant in the other matter because of the extra ground that you have got?

Mr Haylen: Yes. I indicated on the last occasion that in the debate in matter No.9A when Mr Kenzie was appearing for a number of successful candidates, a number of points were taken by Mr Kenzie, which were claimed to debar, so to speak, Mr Stapleton from relief in this matter, and argument was put in reply to that.

I think Mr Ryan also sought to take some points by seeking leave to appear as a party, and that was declined. Mr Weston, who was the unsuccessful candidate for the position of assistant secretary in the branch election wishes to take all the points that Mr Stapleton takes. He adds a new one as to the validity of 9(a), and it is submitted on his behalf that if there is found, contrary to the submissions made in matter 9A, that there is some disability disentitling Mr Stapleton to relief, there is no such disability in relation to Mr Weston, and the result, in my submission, is that a new election should be held in any event."

After hearing submissions from the parties the Court ordered that all the submissions made in matter No.9A of 1982 be deemed to be submissions in the present matter. Further that the submissions made by Mr Kenzie in matter No.9A of 1982 in respect of r.9(a) of the organization and the concessions made by Mr Haylen therein in respect of that sub-rule were to be deemed to be submissions in the present matter. The matter was then stood over for judgment at a time when judgment in matter No.9A of 1982 was delivered.

In view of the course proposed in the reasons for judgment in matter No.9A of 1982 no formal order is made in this matter at this stage.