Determination of the Validity of the Rules of Organisations under Section 140 of the Conciliation and Arbitration Act
| Published date | 01 March 1976 |
| Date | 01 March 1976 |
| DOI | 10.1177/0067205X7600800104 |
| Subject Matter | Comments |
COMMENTS
DETERMINATION
OF
THE
VALIDITY
OF
THE
RULES
OF
ORGANISATIONS
UNDER
SECTION
140
OF
THE
CONCILIATION
AND
ARBITRATION
ACT
By
R.
R.
S.
TRACEY*
Registration
of
organisations
under
the
Conciliation
and
Arbitration
Act
1904
(Cth)
is conditional
upon
their affairs being regulated
by
rules.l
The
Conciliation
and
Arbitration
Regulations, made
under
the
Act,
contain
alengthy set
of
directives2as to
what
the
rules
of
an
association
must
contain
before it
can
be registered as
an
organisation.
These prerequisites continue as obligations which
must
be observed
by
registered organisations.3
The
Act
itself stipulates
that
the
rules
of
organisations shall
contain
certain
provisions, such as provision
for
and
conduct
of
secret ballots.4
In
addition to
the
required rules, organis-
ations
may
have such
other
rules as they
think
necessary
for
controlling
their affairs.
Section 140 of
the
Act
5is designed to ensure compliance with
the
statutory
obligations relating to rules
and
to
protect
members
of
organisations
from
arbitrary
and
illegal rules.
It
provides
in
subsection
(1)
that:
The
rules
of
an
organization-
(a)
shall
not
be
contrary
to,
or
fail to
make
aprovision required
by, aprovision
of
this
Act,
the regulations
or
an
award
or
otherwise be
contrary
to alaw;
(b)
shall
not
be such as to prevent
or
hinder members
of
the
organisation
from
observing the law
or
the provisions
of
an
award;
(c)
shall
not
impose
upon
applicants
for
membership,
or
membeT,:s,
of
the organization, conditions, obligations
or
restrictions which, having regard to
the
objects
of
this
Act
*LL.B. (Hons.), LL.M. (Melb.); Barrister and Solicitor, A.C.T.; Barrister-at-
Law, N.S.W.; Barrister and Solicitor, Victoria; Lecturer in Law, University
of
Melbourne.
1Conciliation and
Arbitr~tion
Act 1904,
s.
132(2); Conciliation and Arbitration
Regulations,
re:g.
115(1)(d)
and
(2).
2Reg. 115l.1).
3Reg. 115(2).
4
S.
133.
Fc)r
other requirements as to rules see
SSe
137 and 139.
5The first six sub-sections
of
s.
140, as it currently stands, with the exception
of
some constitutionally insignificant amendments to sub-sections
(1),
(2)
and (5),
were approvej by the High Court in
R.
v. Commonwealth Industrial Court:
E~
parte The ,Amalgamated Engineering Union, Australian Section (1960) 103
C.L.R. 368.
57
58 Federal Law Review [VOLUME 8
and the purposes of the registration of organizations under
this Act, are oppressive, unreasonable
or
unjust; and
(d)
shall be such
as
to provide for the autonomy of abranch in
matters affecting
memb-ers
of the branch only and matters
concerning the participation of the branch in any State
industrial conciliation and arbitration system.
There
is
no reported case involving an application under section 140
based on an alleged contravention of paragraphs
(b)
and
(d).
The
o'ther two paragraphs have been considered by the Industrial Court on
numerous occasions.
If
amember of an organisation considers that some of its rules
contravene section 140, he may seek adeclaration to this effect from
the Australian Industrial Court.6Proceedings are commenced by an
application to aJudge of the Court for arule to show cause.
If
the
rule
i,s
granted the matter
is
then dealt with by acourt consisting of at
least three judges." The organisation whose rule
is
under challenge
~ust
be given the opportunity of being heardsand
is
invariably
represented before the Court.
I. SECTION
140(1)(a)
The most frequent challenges to rules based on section 140(
1)
(a)
have concerned union rules relating to elections; the filling of casual
vacancies in elected offices, and membership control of policy-making
bQdies.
There have also been occasional challenges to provisions dealing
with the alteration and suspension of rules and on the ground of
contravention of the Act.
(a)
Elections
One of the central features of the Conciliation and Arbitration Act
is
that it seeks to ensure that there
is
democratic control
of
the
orgai1is~tions
registered under it. To this end section 133 provides for
secret ballots and democratic election procedures in organisation elec-
tions and regulation 115(1)(d)(i) requires that all office-bearers and
6Section 140
(2)
and
(3).
To
have standing to challenge arule under s. 140
aperson must have been amember
of
the organisation concerned
at
atime
during which the challenged rule operated and
at
the time
of
commencing pro-
ceedings: Lynch
v.
McLachlan (1962) 3F.L.R. 59. Amember may receive
financial assistance from the Commonwealth Government to pursue his challenge:
Section 141A.
[Editor's note: Since this article was written, the Industrial
Court
has been
abolished and its jurisdiction and powers transferred
to
the Federal
Court
of
Australia, see Conciliation and Arbitration Amendment Act
(No.3)
1976.]
'1
S.
104.
8
S.
140(4).
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