Leveridge v. Shop Distributive and Allied Employees' Association

(1977) 31 FLR 385
17 ALR 145

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(Judgment by: Evatt J)

Between: Leveridge
And: Shop Distributive and Allied Employees' Association

Court:

Judges: Smithers J
J.B. Sweeney J

Evatt J

Subject References:
Conciliation and Arbitration

Judgment date: 26 August 1977

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Judgment by:
Evatt J

These matters were heard together and it was agreed that the facts and circumstances disclosed during the hearing were to be considered by the court on any relevant issue in each case. (at p422)

I have had the opportunity of reading the reasons for judgment of Smithers J. in all matters.

As to matter No. V4 of 1977. (at p422)

This is an application by Elizabeth Leveridge, a member of the Shop Distributive and Allied Employees' Association (the federation), brought under s. 140 of the Conciliation and Arbitration Act 1904 (the Act) wherein she claims that rr. 5 (c) (ii) and 36 (b) of the rules of the Victorian branch of the federation contravene s. 140 (1) (c) in that such rules impose on members conditions, obligations or restrictions which having regard to the objects of the Act and the purposes of the registration of organizations under the Act are oppressive, unreasonable or unjust. (at p422)

The relevant rules and the facts relied on by the claimant are fully set out in the judgment of Smithers J. The material facts in my opinion are that at the beginning of 1977 the branch consisted of some 36,000 members, 12,000 of whom had been members for a period of less than one year, a further 12,000 of whom had been members for a period in excess of one year but less than two years, whilst the remaining 12,000 had been members for a period of three years or more. (at p423)

Further, from 1975 onwards the membership of the branch was such that one-third of the membership consisted of part-time casuals most of whom worked less than ten hours per week whilst another one-third of the membership worked as part-time employees for more than ten hours but less than thirty-nine hours per week with the remaining one-third of the membership working as full-time employees. (at p423)

It was conceded by the claimant that a requirement in the rules of any organization that a member be financial at the time of the closing of nomination for election to any office or position in the organization would not of itself be contrary to s. 140 (1). (at p423)

But the requirements in the rules under challenge that a person is required to be a financial member of the federation for not less than two years immediately preceding the close of nominations for the offices of divisional delegate to branch conference and of branch delegate to national council has the effect in the circumstances of the membership of the Victorian branch that sixty-six per cent of the membership are prevented from ever holding office and excludes many of the remaining one-third of the membership from standing for such offices for varying periods between two years and four years and three months. (at p423)

I am of the opinion that to exclude such a large proportion of the membership from nominating for such offices clearly contravenes the objects of the Act and in particular the object in s. 2 (f) which reads:

"2.

The chief objects of this Act are - . . .

(f)

to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization".

This object was inserted into the Act in November 1973. (at p423)

The said rules do, in my opinion, impose oppressive and unreasonable conditions or restrictions upon members wishing to so nominate. But this is not to say that rules making it a condition of nominating for all offices in any organization that a period of continual financial membership of up to two years immediately preceding the date of nomination would be considered as being contrary to s. 140 (1). The rules in each case would have to be considered in the light of the circumstances prevailing within a given organization at the time under consideration. (at p423)

I agree with the reasons of Smithers J. that the court has power under s. 140 (5) to strike down the part of r. 36 (b) which requires a member to be "a financial member of the organization for two years immediately preceding the close of nominations" so far as it relates to the position of division delegate to branch conference and of branch delegate to national council referred to in r. 36 (a) (i) and 36 (a) (iii) respectively. (at p423)

Accordingly orders should be made under s. 140 declaring that that part of branch r. 5 (c) (ii) which is contained in the expression "for not less than two years" and that part of branch r. 336 (b) which is contained in the expression "for two years" (in so far as it relates to the positions referred to in r. 36 (a) (i) and 36 (a) (iii)) contravene s. 140 (1).

As to matter No. V5 of 1977. (at p424)

I agree with the reasons for judgment of Smithers J. herein and that orders should be made accordingly.

As to matter No. V8 of 1977. (at p424)

This is an application brought pursuant to s. 140 of the Act by Nigel Arthur Webster, Frederick James Maddern and Mano Alexakis as members of the federation claiming that rr. 5 (c) (ii) and 36 (b) of the rules of the Victorian branch of the federation contravene s. 140 (1). Further, the applicants sought orders pursuant to s. 141 of the Act that the returning officer then conducting elections under s. 170 of the Act perform and observe the rules of the branch by accepting the applicants' nominations for elections to certain offices within the branch. (at p424)

At the outset of the hearing of these applications it was conceded by the claimants that s. 141 (5) and (9) prohibited the making by the court of the orders asked for in the application brought under s. 141. (at p424)

During the hearing the application of Mano Alexakis was withdrawn and he thereafter sought no order of the court. (at p424)

With regard to the application brought pursuant to s. 140, the applicants herein are entitled to rely upon the order made earlier this day by the court in matter No. V4 of 1977 wherein the court declared that the rules in question contravene s. 140 (1).

As to matter No. V9 of 1977. (at p424)

This is an application by Terence Vincent Moloney brought under Pt IX of the Act for an inquiry by the court into an election held pursuant to s. 170 to fill certain offices in the Victorian branch of the federation. (at p424)

I agree with the reasons for judgment of Smithers J. herein.

As to matters Nos. V10 and V12 of 1977. (at p424)

These are applications by Nigel Arthur Webster and Frederick James Maddern respectively brought under Pt IX of the Act for an inquiry by the court into the said elections. (at p424)

The facts and circumstances of the applications made by the respective applicants under s. 159 and referred to the court pursuant to that section are fully set out in the judgment of Smithers J. Being satisfied that there were reasonable grounds for the applications the court proceeded with the hearing of the inquiry and made an interim order under s. 163 (1) (a) that the returning officer take no further steps in the conduct of the election to fill the offices in question until further order of the court. (at p425)

During the hearing by a court of an inquiry brought under Pt IX of the Act an applicant may contend, if it be relevant, that a rule of an organization contravened s. 140 (1) of the Act at a particular date. If, prior to the hearing of such inquiry, a court has declared pursuant to s. 140 (5) of the Act that the particular rule contravened s. 140 (1) and the date of the making of such declaration is earlier than the date relied upon by the applicant in his application under s. 159, then he relies upon such declaration and the court conducting the inquiry is bound by it. But where such declaration was made on a date later than the date relied on by such applicant then the court conducting the inquiry has to determine the issue after considering the facts, conditions and circumstances as proved as at that earlier date in the same way as it would where there has been no declaration under s. 140 (5) relative to the particular rule (The Queen v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (Australian Section) (Shearer's case) per McTiernan J. (1960) 103 CLR, at pp 372-373 , Fullagar J. (1960) 103 CLR, at pp 378-379 , Kitto J., with whose reasons Dixon C.J. agreed (1960) 103 CLR, at pp 380-381, 384-385 , Menzies J. with whose reasons Taylor J. agreed (1960) 103 CLR, at pp 387-388 , and Windeyer J. (1960) 103 CLR, at p 389 ). (at p425)

Being of the opinion that the part of r. 5 (c) (ii) and the part of r. 36 (b) (in so far as they relate to the positions of division delegate to branch conference and branch delegates to national council referred to in r. 36 (a) (i) and 36 (a) (iii) referred to in my judgment in V 4 of 1977 contravene s. 140 (1) of the Act, and being satisfied on the evidence that such contraventions occurred on and immediately before 4th March, 1977, the date on which nominations for election to the said positions closed, I am of the opinion that irregularities within the meaning of s. 165 of the Act occurred in a step in the subject election. Such irregularities were the rejection by the returning officer of the applicants' nominations for election to the said positions on the basis that the applicants had not at the date of the closing of nominations been financial members of the federation for a period of two years immediately preceding that date as apparently then required by branch rr. 5 (c) (ii), 36 (a) (i) and 36 (a) (iii). (at p425)

In my opinion the circumstances are such that the court should order that a new election, including the calling of fresh nominations for the positions referred to, be held and that consequential directions be made (at p426)

Declarations and orders accordingly.