Re John Lockwood Lawrence v Barry Porter; Jane Singleton; Brendan Donohoe; Christopher Warren; Catriona Wilson; Pat O'Donnell; Wayne Watson; John Brittle; Norman Taylor; Richard Scherer; Tom Barrass; Adrian Wild; Neal Swancott; Gavin Cantlon; Brad Turn [1987] FCA 279 (24 August 1987)

FEDERAL COURT OF AUSTRALIA

Re: JOHN LOCKWOOD LAWRENCE
And: BARRY PORTER; JANE SINGLETON; BRENDAN DONOHOE; CHRISTOPHER WARREN;
CATRIONA WILSON; PAT O'DONNELL; WAYNE WATSON; JOHN BRITTLE; NORMAN TAYLOR;
RICHARD SCHERER; TOM BARRASS; ADRIAN WILD; NEAL SWANCOTT; GAVIN CANTLON; BRAD
TURNER; KATRINA WILLIS; GAIL LUXFORD; LINDSAY FOYLE; GEOFFREY HUGHES; BOB
BEATTY; RADA ROUSE; DAVID HALPIN; LIZ FELL; MARK CAMM; RICHARD McGREGOR; BILL
PREECE; MICHAEL SUTHERLAND; RAY FRAWLEY; LACHLAN McDONALD; ANNE-MARIE
STRICKLAND; GAVIN WHYTE; AGNES WARREN; SUSAN PEAK; KEVIN GROVER; MARGARET
SIMONS; DUNCAN CLARKE; NORM HARRIDIEN; LIZ ALLEN; ARTHUR CORRIE; DES DRIBERG;
BARTON GREEN; WILLIAM RUST; JULIE DUNCAN; PETER BAKER; RICHARD CRESWICK; ANNE
GILES; GENINE READ; JERRY MAHER; PAUL LEWER; WILL ATKINS; MAXWELL WATSON;
CHARLES PHILLIPS and THE AUSTRALIAN JOURNALISTS ASSOCIATION
No. 19 of 1987
Industrial Law
21 IR 305

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Beaumont J.(1)

CATCHWORDS

Industrial Law - proposal by Council of Union that Union affiliate with A.C.T.U. - treated as urgent business - postal ballot - earlier plebiscites of members voting against affiliation - whether proposal in breach of Rules - whether Rules unjust etc. - Conciliation and Arbitration Act 1904, ss.140, 141 - Reg.115(1)(d)(v).

HEARING

SYDNEY
24:8:1987

Counsel and Solicitors for Applicant: R.C. Kenzie, Q.C. and M. Kimber instructed by R.L. Whyburn & Associates.

Counsel and Solicitors for Respondent: J. Shaw, Q.C. and Nolan instructed by Turner Freeman

ORDER

That the amended rule nisi be discharged.

That the interim orders made by the Full Court on 20 May 1987 restraining the respondents from taking any step to prosecute the AJA's affiliation application, be discharged.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant, a member of the Australian Journalists Association ("the AJA"), an organisation of employees registered under the Conciliation and Arbitration Act 1904 ("the Act"), seeks orders under ss.140 and 141 of the Act in respect of steps taken by the AJA to affiliate with the Australian Council of Trade Unions ("the ACTU"). The proposal to affiliate with the ACTU originated at a meeting of the Federal Council of the AJA ("the Council") held in November 1986. The applicant says that the procedures followed at this meeting departed from the rules of the AJA in a number of respects. He asks for orders under s.141 accordingly. He also contends, in the alternative, that even if it should be held that the rules were in fact complied with, then it should be declared, pursuant to s.140(1)(c), that the rules were oppressive, unreasonable or unjust.

2. The Council is the "governing body" of the AJA (rr. 5, 6(a)). Control and management of the AJA are vested in a number of organs. "Supreme control" rests with financial members voting by plebiscite. As has been noted, the governing body is the Council. The general administration of the AJA is vested in the Federal Executive and, through it, the Federal Management Committee which runs the day to day affairs of the AJA (r.5).

3. The Council has "complete authority over policy, management and all matters concerning the (AJA) and/or its members" (r.6(a); cf. r.5). Amongst other special powers, the Council has power to amend the rules of the AJA (r.6(a)(2)). The Council consists of a Federal President, two Federal Vice-Presidents, the Federal Secretary, the Assistant Federal Secretary, the President and Secretary of each Branch and additional delegates from each Branch (r.6(b)).

4. The Council commenced its biennial meeting on 2 November. On that day, Mr Swancott moved that a number of items of urgent business be accepted for consideration by the Council at a later stage. One such item was:

"UB-(8) Affiliation

THAT Federal Executive be authorised to arrange a
national plebiscite on AJA affiliation to the ACTU
during 1987."

5. The Minutes record that the resolution that this item be accepted as an urgent business for consideration at a later stage by the Council was "carried with the required majority."

6. The Minutes do not explain what the "required majority" was. When a delegate to the Council wishes to bring forward as urgent business "any matter of a substantive nature" not on the business paper of a biennial council meeting, written notice shall be given to the Chairman (r.8(a)). (It is common ground that the question of affiliation with the ACTU was not on the business paper). The Chairman shall read it aloud and then ask the Council to decide whether the nature of the matter is, in its opinion, sufficiently urgent to be dealt with by the meeting (r.8(a)). Unless delegates representing at least 60 per cent of total delegates vote in favour of the matter being accepted for consideration later, its merits shall not again be brought before the meeting (r.8(b)). These rules must be read in conjunction with r.61 as follows:

"61 - ALTERATIONS TO RULES

(a) The Constitution, Objects and Rules of the
Association shall not be altered, amended, added
to, or repealed, except by resolution of a
meeting of Federal Council.

(b) Any proposal to alter, amend, add to or repeal
the Constitution or Objects or any of the Rules
of the Association shall not be considered by
Federal Council unless all members of Federal
Council have been given notice of the proposal
in accordance with Rule 7(k), or unless the
provisions of Rule 8(b) have been complied
with."

7. Later in the meeting, a delegate, Mr Donohoe, was given permission to move a motion. The Minutes record the matter as follows:

"UB-(8) AFFILIATION

Mr Donohoe was given permission to move the motion
standing in his name in the following form:

THAT Federal Executive be authorised to
conduct a national plebiscite on AJA
affiliation to the ACTU between now and the
1988 Federal Council and that this Federal
Council supports the principle and
acknowledges the benefits of AJA state
branches affiliating to their respective Trade
Hall Councils.

Further, that the AJA make a donation of
$2,000 in 1986 and 1987 to the ACTU in
recognition of their assistance on
superannuation, wages, occupational health and
other matters.

AMENDMENT

8. Mr Rust MOVED, Mr Baker SECONDED

THAT Federal Executive be instructed to plan a
comprehensive national information campaign
among the membership, as a prerequisite to
such a plebiscite.

The Mover and Seconder accepted the amendment.
Ms Simons MOVED, Ms Strickland SECONDED

THAT consideration of this item be adjourned
pending a report from a sub-committee
comprising Messrs Swancott, Warren and
Donohoe.

CARRIED"

9. Subsequently, another delegate, Mr Harriden, put a motion which was recorded in the Minutes as follows:

"UB-(8) AFFILIATION

10. Mr Harriden MOVED, Mr Swancott SECONDED

1. THAT a new Rule 57(a) be inserted to read as
follows:

'Notwithstanding anything to the contrary in
these rules, Federal Council, a Branch or
sub-Branch shall be authorised to affiliate
with any industrial organisation or peak body
of bona fide trade unions.'

2. Amend Rule 57(c) by deleting the first sentence
and by inserting the following:

'A Branch or sub-Branch may only affiliate with
a Trades and Labour Council in its territory
after receiving consent from Federal Council.'

3. Renumber Rules 57(a),(b),(c),(d),(e) and (f)
accordingly.

The motion was CARRIED with Mr M. Watson and
Mr D. Driberg voting against.

11. Mr Cantlon MOVED, Mr Hughes SECONDED

THAT the Rules Committee examine Rule 56 appeal
procedures.

CARRIED"

12. As the Minutes record, there were two votes against the motion. It appears that of the 52 members of the Council, 48 were then present, so that 46 voted in favour.

13. Immediately thererafter, the Minutes record the carrying of the following motion proposed by Mr Donohoe:

"UB-(8) AFFILIATION

14. Mr Donohoe MOVED, Mr Baker SECONDED

THAT Federal Council authorises Federal
Executive to consider and arrange, if
determined, a plebiscite on AJA affiliation to
the ACTU between now and the 1988 Federal
Council.

THAT this Federal Council instruct Federal
Executive to co-ordinate, before any plebiscite,
a comprehensive information campaign among the
membership on the benefits of affiliation to the
ACTU.

THAT Federal Council declares that AJA Branches
should affiliate with their respective Trades
Hall Councils, in keeping with the objects of
the AJA Rule 3(a)(3).

To enable Federal Executive to arrange the
timing for a plebiscite, in Rule 56(c) add the
words 'instruct Federal Executive to' after 'If
Federal Council decides to take a plebiscite it
shall.' Delete 'instruct Federal Executive'
from Rule 56(c)(2).

THAT the AJA make a donation of two thousand
dollars in 1986 and two thousand dollars in 1987
to the ACTU in recognition of its assistance on
superannuation, wages, occupational health and
safety and other matters.

CARRIED"

15. In 1987, the Council purported to take steps under new r.57(a) to affiliate with the ACTU. In this connection, in March 1987, the Federal Executive conducted a postal ballot of members of the Council to consider the following resolutions:

"1. Do you agree that a decision of Federal Council
should be taken by postal vote on the urgent
matter of A.C.T.U. affiliation?

2. If more than 75 per cent of members of Federal
Council vote yes on question 1, do you agree
that Federal Council should immediately seek
affiliation with the A.C.T.U. in accordance with
Rule 57(a)?"

16. The vote on the ballot was as follows:

Resolution 1 For 38

Against 9

Resolution 2 For 37

Against 10

17. The ballot was purportedly conducted pursuant to r.7(m)(n) and (o) which provide:

"SPECIAL COUNCIL MEETING

(m) A special meeting of Federal Council may be held
to deal with an urgent matter connected with the
Rules providing that at least 75 per cent of
Federal Council delegates consider the matter
urgent enough to warrant a special Federal
Council meeting. A special meeting of Federal
Council shall be held in the event of the
removal or suspension of a Federal Officer under
the provisions of Rule 50A.

(n) When 75 per cent or more of Federal Council
delegates consider a Special Federal Council is
warranted under Rule 7(m), or when a Federal
Officer is removed or suspended from office, the
Federal Secretary (or Federal President) shall
give each delegate and each Federal Officer at
least 72 hours notice of the meeting. The
notice shall set out the place, date and time of
the meeting and business which is to be
submitted to the meeting.

(o) Where appropriate, decisions of a Special
Meeting of the Federal Council may be made by
postal or telegraphic vote provided that
reasonable notice of the matter or matters for
decision has been given to all members of
Federal Council. Matters may only be submitted
to such a meeting by the Federal Executive or
Federal Management Committee."

18. On 30 April 1987, Mr Warren, the Federal Secretary of the AJA, wrote to the ACTU applying, on behalf of the AJA, for affiliation with the ACTU. Under its Constitution and Rules, the ACTU is constituted by, inter alia, "(a)ffiliated unions" (r.4(a)). To be eligible to attend the ACTU Congress, a union seeking affiliation in a Congress year must lodge its application with the ACTU not later than 30 April in that year and pay the stipulated affiliation fees and levies (r.5(b)(i)). On 17 June 1987, Mr Kelty, Secretary of the ACTU, wrote to the AJA informing it that its application for affiliation had been approved. Earlier, by letter dated 7 May 1987, Mr Kelty had informed the applicant's solicitors that if the present proceedings were successful, the ACTU would abide by the Court's decision.

19. The applicant challenges the steps taken by the AJA to affiliate with the ACTU on a number of grounds. In the first place, the resolution amending the rules by inserting new r.57(a) is attacked. The applicant says that the procedures prescribed by r.8 to be followed in the case of urgent business were not complied with. It will be remembered that r.8 provides that a number of steps be taken when a delegate wishes to bring forward as urgent business "any matter of a substantive nature" not on the business paper. By r.7(i), acceptance of any matter for the business paper of Biennial Federal Council shall close at 5.00 p.m. on 15 October of the year in which the meeting is held; and any matter, other than reports, shall be in the form of substantive motions. But it will be recalled that, although the question of affiliation was not on the business paper, the Council agreed to accept as urgent business the following item:

"UB-(8) Affiliation

THAT Federal Executive be authorised to arrange a
national plebiscite on AJA affiliation to the ACTU
during 1987."

20. In fact, as has been said, two resolutions were later passed as urgent business under the item "affiliation". The first of such resolutions (which is now under challenge) purported to introduce a new r.57(a) authorising the Council to affiliate with any industrial organisation or "peak body of bona fide trade unions". It is submitted on behalf of the applicant that this resolution could not properly be brought forward as urgent business pursuant to r.8. The applicant argues that this resolution was not "the matter" previously accepted as urgent business, namely, the item "UB-(8)" quoted above but something different, that is to say, an amendment to the rules empowering the Council to affiliate with any "peak" body of trade unions.

21. It would seem that the draftsman of the rules had in mind the analogy of parliamentary practice dealing with the process of debate. By the practice of Parliament, notice of a substantive motion (i.e. notice of the intention of a member to call the attention of the House to some particular subject which does not arise out of the orders of the day) or to move a resolution or to ask for a return, must as a general rule be printed on the notice paper (see Halsbury's Laws of England, 4th ed., Vol.34 at p.454). According to Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 20th ed. at pp.374-5, a "motion" is a proposal made for the purpose of eliciting a decision of the House. Motions may be classified either as independent and substantive or as dependent and subsidiary:

"Substantive motions are self-contained; subsidiary
motions may be (1) ancilliary motions dependent on an
order of the day, such as the motion that a bill be
now read a second time, or that the House agrees with
the report of a committee; (2) motions made for the
purpose of superseding questions, such as motions for
the adjournment of a debate (see p.385); (3) motions
dependent on other motions such as amendments. In
general substantive motions require notice, whilst
subsidiary motions do not. The rules regulating the
requirement of notice, however, depend more upon
practical than upon logical considerations, and are
set out below. When notice is required, the terms in
which a motion is moved should be the same as the
terms of the notice, or should at any rate be covered
by them, without the importation of any fresh matter."

(See also Odgers, Australian Senate Practice, 5th ed. at pp.248, 265 and 268; Pettifer, House of Representatives Practice at p.436.)

22. The first question here is one of characterisation of the "matter" which was earlier accepted by the Council as urgent. Was it, as the applicant contends, merely a resolution authorising the Federal Executive to arrange a national plebiscite on the question of ACTU affiliation? If so, the resolution introducing r.57(a) could not have been brought forward properly as urgent business. The respondents argue that what was accepted as urgent was far wider than suggested by the applicant and embraced any matter concerned with affiliation by the AJA with another industrial body. The only difference between what was accepted as urgent and what Mr Harriden proposed, the respondents say, was the employment of diverse means to achieve the same end, namely, ACTU affiliation. That being so, the respondents' argument runs, the subsequent resolution amending r.57 qualified as urgent business within the parameters of the earlier resolution (see Boland v. Munro (1980) 48 FLR 66).

23. In my opinion, for the purposes of r.8(a), a resolution introducing a new r.57(a) is a different "matter of a substantive nature" from a resolution authorising the Federal Executive to arrange a national plebiscite or AJA affiliation with the ACTU. For one thing, the former resolution amends the rules. For another, r.57(a) is not confined to affiliation with the ACTU. Further, r.57(a) does not require a plebiscite. It follows that, notwithstanding their common objective, viz., affiliation with the ACTU, there were significant differences in character between what was authorised to be brought forward as urgent business on the one hand and the resolution which purported to amend r.57 on the other. Although it was not necessary that Mr Harriden's motion follow the exact terms of what was earlier proposed (see, e.g. In Re Trench Tubeless Tyre Co.; Bethell v. Trench Tubeless Tyre Co. (1900) 1 Ch 408; Torbock v. Lord Westbury (1902) 2 Ch 871), the differences between the two resolutions proposed were so significant that it is not possible to say that the later resolution "fairly arises" out of the earlier one (see Boland v. Munro, supra, at p 74; Halsbury's Laws of England, 4th ed. Vol.7, pp 333-4; para.564). To put it another way, Mr Harriden's motion "exceeded the scope" of the earlier resolution (see Pettifer, op. cit., at p 405; James v. Amott (1918) 14 Tas LR 99; Wallace and Young, Australian Company Law and Practice at pp 438, 440).

24. But the respondents then say that the circumstances in which r.57 was purported to be amended give rise to an inference or implication that the requirements of r.8 as to the introduction, without formal notice, of urgent business, were intended to be waived by the Council.

25. Again, there is an analogy in the Parliamentary practice. As Erskine May, op. cit. at pp.376-7 says, the House can waive the requirement of a substantive motion if the motion is moved under the sanction of the Chair and with the general concurrence of the House. Yet the objection of any Member is enough to prevent the waiver of notice.

26. In the present case, it appears that the Chair sanctioned the immediate consideration of the motion proposed by Mr. Harriden for the insertion of new r.57(a). It further appears that no member objected to the course of acceleration of the procedures to bring the matter before the meeting. Two members voted against the resolution but they were then voting on the merits, as an issue of substance. But it does not follow that these members objected to Mr Harriden's motion being dealt with as urgent business. On the contrary, the minutes show his motion as "UB-8" (i.e. urgent business) and it is proper to infer unanimous consent from the acquiescence in that course, that is, its acceptance as urgent business, on the part of all members present (see War Assets Pty. Ltd. v. Federal Commissioner of Taxation [1952] HCA 35; (1954) 91 CLR 53 at p 88; Halsbury's Laws of England, 4th ed. Vol. 9 p 763 para.1296). It follows, in my view, that the requirements of r.8 were waived in this instance.

27. In this connection, it is submitted on behalf of the applicant that strict compliance with the rule-changing procedures is mandatory (see, e.g., Cook v. Crawford (1982) 62 FLR 34 at pp 99-101). But this is not to say that it was never open to the members of the Federal Council to acquiesce in Mr. Harriden's bringing forward his motion as urgent business notwithstanding that this motion went beyond the scope of what had previously been accepted as urgent business. In my view, it is proper to infer that all members of the Council present agreed to the urgent consideration of the motion. The fact that two members were opposed to the motion on its merits is, of course, beside the point.

28. I reject the applicant's first challenge.

29. The next subject of attack is the holding of the postal ballot in March and April 1987. It will be remembered that no actual meeting of the Council was then held and that the resolutions for ACTU affiliation were put to the members in purported reliance upon r.7(m)(n) and (o). These rules are to the following effect:

(1) Providing at least 75 per cent of delegates
consider the matter urgent enough, a special meeting
of the Council may be held "to deal with any matter
connected with the Rules" (r.7(m)). (Emphasis added)

(2) At least 72 hours' notice of such meeting,
including notice of the business to be submitted,
shall be given (r.7(n)).

(3) Where appropriate, decisions of such a meeting
may be made by postal or telegraphic vote provided
that reasonable notice of the matter for decision has
been given to all members of the Council. Only the
Federal Executive or the Federal Management Committee
may submit a matter to such a meeting (r.7(o)).

30. In the first place, the applicant argues that the resolution passed as a result of the postal ballot was defective because the rules, on their true construction, required that a physical meeting of the Council actually be held even if it were permissible to take the vote later by post.

31. I cannot accept this analysis.

32. It is true that, taken literally, r.7(o) does speak of a "meeting". However, it would defeat the evident object and purpose of the rule if it were construed in the manner contended for by the applicant. The rule is clearly intended to avoid the need to call together a large number of persons from different parts of the country where urgent action is required. It would defeat that object if delegates were first required to meet physically but then adjourn, as the applicant's argument would suggest, for the purpose of taking a postal vote. Such an exercise would be pointless and, as a matter of construction of the constating instrument of an organisation, such an absurd result should be avoided, except if the language requiring such a result is intractable (see Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at pp 320-1).

33. In my view, the language of r.7(o) is not intractable. Although, in some contexts, a reference to a "meeting" has been treated as requiring a "coming together" of at least two persons (see Sharp v. Dawes (1876) 2 QBD 26 per Lord Coleridge C.J. at p 29; Re London Flats Ltd. (1969) 1 WLR 711; Higgins v. Nicol (1971) 18 FLR 343 at p 357), this is not universally so. The word can be used in other than its strict sense (see East v. Bennett Brothers, Limited (1911) 1 Ch 163 at pp 169-170; Regina v. Leech, ex parte Tolstrup (1879) 5 VLR (L) 494 at p 502; Patterson, Ednie and Ford, Australian Company Law, 3rd ed. at p 59,624; Halsbury's Laws of England, 4th ed. Vol. 9 p 764 para. 1297, footnote (1)).

34. In the present context, it is plain that the reference to a meeting was intended to describe a notional or "artificial" meeting only (see per Kearney J. in Re Hastings Deering Pty. Ltd. (1985) 9 ACLR 755). If given this construction, r.7(o) has an effective operation. By contrast, if, as the applicant's argument would have it, the procedures at the meeting have to be interrupted for the purpose of taking a postal vote, the rule achieves a most inconvenient, and surely unintended, result.

35. It will be remembered that r.7(m) required that the urgent matter be "connected with the Rules". The applicant also contends that the resolution, carried by postal ballot, that the Council should seek affiliation in accordance with s.57(a), was not so connected and, the argument runs, the provisions of r.7(m) and thus r.7(o), were not available here.

36. In my opinion, the contention lacks substance. The taking of a step pursuant to r.57(a) was necessarily connected with the rules.

37. To understand the next ground of challenge, it is necessary to refer to some of the history of the affairs of the AJA. The issue of affiliation with organisations of trade unions was debated by members of the AJA in the 1920's and in the 1940's. In 1944, a national plebiscite on the question - "Are you in favour of the AJA affiliating with the ACTU?" - showed 843 votes against and 389 in favour. Similar results were obtained in plebiscites in 1956 (1344 votes against; 624 for); 1973 (2409 against to 1083 for - out of a then total membership of 6,853); 1980 (2343 against; 1707 in favour); 1984 (2772 against; 1790 for). Against this background, it is submitted on behalf of the applicant that the general powers of the Council should be read down so as to give effect to what is said to be the expression of the democratic will.

38. In support of this argument, the applicant relies upon a number of rules to which reference should now be made. It will be recalled that r.5 provides that "supreme control" rests with financial members voting by plebiscite. Consistently with this, by r.6(a), "complete authority" is conferred upon the Council over policy, management and all matters concerning the AJA. Inter alia, the Council may submit any matter or question for opinion or decision by plebiscite to all financial members (r.6(a)(4)). A decision of the Council shall be final and binding throughout the AJA and shall remain in force until superseded, amended or rescinded (a) at a subsequent meeting of Federal Council; or (b) by decision reached by plebiscite (r.6(a)(14)). Plebiscites are dealt with as a separate subject by r.56. A plebiscite of all financial members of the AJA may be taken on a nominated question either by resolution of the Council or at the request of at least two branches (r.56(a)). When two or more branches request a plebiscite on any decision of the Council, the notification shall be forwarded to the Federal Secretary within 14 days of the close of the meeting at which the decision was made. A plebiscite shall be decided by a majority of valid votes cast in the plebiscite and that decision shall be final and binding on all members of the AJA (r.56(m)).

39. As has been noted, r.57(a) provides that, notwithstanding anything to the contrary in the rules, the Federal Council is authorised to affiliate with any peak body of bona fide trade unions. On its face, this provision confers power on the Council to seek affiliation with a body such as the ACTU and there is nothing elsewhere in the rules to justify a reading down of the operation of the rule in the manner suggested by the applicant. This is not to say that the plebiscite provisions could have had no operation in the present case. It was always open to the Council to submit the matter to a plebiscite of all members pursuant to r.6(a)(4). Alternatively, two or more Branches could have requested a plebiscite in accordance with r.56(f).

40. Such plebiscites are, of course, taken subsequently to the decision in question. The present case is different since, according to the applicant's argument, plebiscites on the affiliation issue taken years earlier can now fetter the powers otherwise available to the Council. There are several difficulties in accepting this argument. A preliminary question arises as to the interpretation to be given to the negative response to the question posed - Are you in favour of affiliation...?" The use of the present tense is significant. As one would expect, members were not asked to express a view on the historical question whether, in the past, affiliation would have been desirable. Nor were they requested to speculate as to the future position. Their decision must be seen in its context, that is to say, a decision by a majority of that generation of members that affiliation was not then viewed with favour. It would be wrong to draw from it the wider proposition that members would always remain opposed to affiliation. Their views were not immutable and could hardly have been intended to be so: the possibility of a future change of circumstances may well have been present to the minds of members who voted. Those who elected to respond could only speak for their own time. The responses to the several plebiscites should be seen as no more than a negative attitude to affiliation at that point of time. The future was left, as one would expect, for others to decide.

41. It is difficult to see any basis for reading down the Council's general powers to amend the rules suggested by the applicant. This is not to say that, in proceedings under s.14l, it is not possible to seek relief which gives effect to implications properly made in the rules of an organisation (see Michael Christie, Legal Duties and Liabilities of Federal Union Officials (1986) 15 MULR 591 at p.601). Nor is it to deny that, in deciding whether to affiliate, the Council could properly take into account the results of an earlier plebiscite. But it is difficult to see any foundation for an implication in the rules which would actually constrain the exercise by the Council of its powers, first to amend its rules to permit affiliation with another body and, secondly, to move for affiliation with the ACTU. In my opinion, the results of the plebiscite did not, as a matter of construction of their terms, and, in any event, could not, as a matter of construction of the rules, inhibit or fetter the Council for present purposes.

42. Finally, the applicant says that r.57(a), to the extent that it empowers a decision contrary to a decision or contrary to the spirit of a decision taken by plebiscite of the members is oppressive, unreasonable and unjust and thus contravenes s.140(1)(c) of the Act. A similar submission is put in respect of the rules as a whole. Then it is said the rules fail to make provision required by regulation 115(1)(d)(v) of the Conciliation and Arbitration Act Regulations for the control of committees of the AJA by members of the AJA.

43. I cannot accept any of these arguments. In the first place, as has been noted, the argument attributes to the earlier plebiscite a wider operation, in terms of time, than they could properly bear. In any event, Wright v. McLeod (1983) 51 ALR 483 is squarely in point. The applicant cannot sustain the far-reaching proposition that s.140(1)(c) will be contravened unless the rules provide for a plebiscite as the only method by which the AJA could decide on a question such as affiliation with another industrial organisation, in this instance the ACTU. Similarly, Boland v. Munro, supra, at pp 80-1, as approved in Wright v. McLeod, effectively answers the suggestion that reg.115(1)(d)(v) has been contravened.

44. In the result, the application fails. I order that the amended rule nisi be discharged. I further order that the interim orders made by the Full Court on 20 May 1987, restraining the respondents from taking any step to prosecute the AJA's affiliation application, be discharged.