Application by Linehan, Desmond Lawrence under s.144 re Keogh, Terence Charles and Federated Clerks Uniion of Australia
[1979] FCA 103
•19 Oct 1979
APPLICATION BY LINEHAN UNDER s.144 RE KFOGH AND FEDERATED
CLERKS UNION OF AUSTRALIA
Industrial law - application of s.144 to a person who joined the union otherwise than by use of s.144 - general
bad character - eligibility to loin union - meanlng of
"in a clerlcal capacity"
Conciliation and Arbitration Act, 1904 ss.141 and 144
CORAM: J.B. SVrnENEY
19 October, 1979
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
| INDUSTRIAL DIVISION | ) | NO. 7 of 1979 |
| 1 | ||
| QUEENSLAND DISTRICT REGISTRY | 1 |
IN THE MATTER of the Conciliation
and Arbltratlon Act, 1904
AND IN THE MATTER of an application under s.144 of the said Act by
| DESMOND LA~ENCE | LINEHAN as ~irector |
and on behalf of the Industrial
Relations Bureau for a declaration
as to the entitlement of
TERENCE CHARLES KEOGH to remain a
member of the FEDERATED CLERKS UNION
OF AUSTRALIA
JUDGE MZING ORDER: J.B. slveeney J.
| DATE OF ORDER: | 19 October, 1979 |
| WHERE MADE: | Sydney |
THE COURT ORDERS THAT:
The application be dismissed.
IN THE FEDERAL COURT OF AUSTRALIA )
1
| INDUSTRIAL DIVISION | ) | NO. 7 of 1979 |
| ) | ||
| QUEENSLAND DISTRICT REGISTRY | ) |
IN THE MATTER of the conciliation and Arbitration Act, 1904
AND IN THE MATTER of an application
| under s.144 of the said ~ c t | bv |
DESMOND LAWRENCE LINEHAN as ~irector
and on behalf of the ~ndustrial
Relatlons Bureau for a declaration
as to the entitlement of
TERENCE CHARLES KEOGH to remain a
member of the FEDERATED CLERKS UNION
OF AUSTRALIA
| 19 October 1979 | J.B. SWEENEY J. |
REASONS FOR JUDGMENT
This is an application brought by the Director of, and on behalf of, the Industrial Relations Bureau ("the Bureau") seeking an order under s.144 of the Conciliation and
Arbltratlon Act, 1904 ("the Act") for a declaration as to the entitlement of Mr. Terence Charles Keogh to remain a member of the Federated clerks Union of Australia ("the
| Union"). | The application is based on an affidavit of |
Mr. Linehan which in its turn refers to an affidavit of he asked the Bureau to make an application.
It is necessary to set out some of the matters dealing with
Mr. Keogh's association with the union. He joined the
Queensland branch of the Union in approximately March, 1975
and at that tlme was employed by the Queensland branch for
part of hls working time as an organizer and also by what
was described as the Queensland branch of the Furnishing
| Trades Union part tlme as an industrial clerk. | On 2 June, 1975 |
he became employed full time by the branch and remained in
| this employment untll 30 November, 1976. | On this date he |
ceased to be so employed, there being a dispute whether he
| was dlsmlssed or resigned. | He then appears to have been |
unemployed for some time and on 27 August, 1977 was appointed
| a union organizer by the Royal ~ustralian | Nursing Federation |
Queensland Branch. He remains in that employment.
On 6 September, 1977 Keogh was advised that a resolution had been carrled setting in motion steps to remove his name from the union's register on the ground that he was not eligible
| for membership. | In accordance with the rules, before his |
name was removed a notlce of the proposed action was given
to him and in accordance with the rules he was heard by the
branch executive before the resolution was flnally adopted
| directing the removal of hls name. | He was allowed legal |
| representation at the hearlng. | He was subsequently on or |
about 11 October, 1977 advised that it had been declded by
the branch executive that hls name should be removed from
the register. He was at the same tlme advlsed that he was
entitled to appeal against the decislon to the branch council.
| The rules provide for an appeal from a decision of the executive | , |
| to be made to the branch council wlthln slx weeks from the date of the decision appealed from. However Keogh did not |
appeal, assigning as his reason that he flrmly and honestly
belleved that such an appeal would be rejected notwithstanding
the justice of his clam. By letter dated 28 November, 1978
he wrote to the branch seeking to appeal agalnst the decision
and was subsequently advised that in view of the lapse of
time his appeal could not be entertamed.
This present application was made on 10 ~uly, 1979 and was preceded by some correspondence between the Bureau and the union.
The matter first came before me for a directions hearing on
27 July, 1979 when I was advised the issues were:
1. whether Mr. Keogh was ellglble for membership in the union in his present occupation.
2. Whether he was a person of general bad character.
An order was then made for particulars to be given of the matters relied on by the Union deallng wlth the second issue.
The appllcatlon then came on for hearing before St.John J. on 27 August, 1979. After some evidence had been given, Eis Honour found that he had been involved in prosecutions in certain matters which might be relevant to the issue of good character and so advlsed the parties. After discussion with the partles the further hearing was adjourned with their
concurrence. It then came on for hearing again at Brisbane
on 5 September last. At the hearing before St.John J.,
Mr. Keogh was glven leave to intervene pursuant to s.l44(7)(a).
He was present throughout the hearing, gave evidence in chief to counsel for the Bureau and was cross-examined. He was then afforded an opportunity which he took of presenting any
| further evldence from hlmself. | He was afforded an opportunity, |
of which he availed himself, of cross-examining the witnesses
called for the Union and was advlsed that certain deponents
whose affidavits were used by the Union would be present for
cross-examination if he required it, but he did not wish to
cross-examine them. He called two witnesses. He was afforded
an opportunity of addressing the Court.
In addition to the two issues which I have set out above, counsel for the Bureau during the course of his address argued that a declaration should be made under s.144(5) that Mr. Keogh was entitled to remain a member of the Union since he had
| complled with the rules. | his argument was based on the view |
that s.144 gave a right to any member of an organization to
remain a member thereof so long as he complled with the rules
and so long as he was not of general bad character and was
eligible for membership under the constitution rule of the
union and that the section gave to him and the Bureau a right
to seek an appropriate declaration.
The argument involved the proposition that the Court should find that the branch executive had misdirected ltself as to the meaning of the words "engaged in a clerlcal capacity" and that consequently its decision should be set aside as void and a declaration made to ensure that Mr. Keogh remained a member of the Union.
There are many factual difficulties in the path of this argument. It was not suggested that in acting to expunge the register the branch executive had acted contrary to the rules or had denied Keogh natural justice. I do not have before me any real evidence as to the material before the executive on which it acted. The evidence in this case is that Keogh was appointed to his present position wlth the Nursing Federation
| on 22 August, 1977. | Proceedings before the branch committee |
| took place in September and October of the same year. | Some |
time after his origlnal appointment at a date not clearly
identified, a change took place in the duties performed by
Keogh because of a re-arrangement of staff. I cannot then assume that the duties Keogh was performing in ~ugust/september of 1979 were the same as the dutles he was performing in September/october of 1977. There is then just no material before me to show that the branch executive in any way mis-
| directed itself. | In that circumstance there is nothlng to |
show that the decision of the branch executive was in any way
open to attack as misdirecting itself.
Apart however from this consideration the section to my mind
| does not permit such a proceeding as this. | So far as is |
relevant the section is in the following form:
"(1) A person employed in connexion with an lndustry
or engaged in an industrial pursuit is, unless
he is of general bad character, entitled, subject
to payment of any amount properly payable in
respect of membership, to be admitted as a member
of an organization (being an organization of
employees in or in connexion with that industry
or of employees engaged in that industrial pursuit)
and to remain a member so long as he complies with
the rules of the organization.
(2) Sub-section (1) does not entitle a person to be
admitted as a member of an organization unless
| he is included in a category of persons ~vho | are |
eligible for membership of the organlzatlon under
the rules of the organization, or to remain a
member if he ceases to be so included and the
rules do not permit him to remain a member.
| (2A) Subject to sub-section | ( 2 ) , sub-section (1) | has |
effect notwithstanding the rules of the organization
except to the extent that it expressly requires
compliance with those rules.
(5) where a question or dispute arises as to the
entitlement under this sectlon of a person to be
admitted as, or to remain, a member of an
organization, that person, a person who is or
desires to become the employer of that person, the
organization or the Bureau may apply to the Court
for a declaration as to the entitlement of that
first-mentioned person under this section.
( 5 A ) subject to sub-section ( 7 ) , the court has jurisdiction
to hear and determine an application under the last
preceding sub-section and may, notwithstanding
anything contained in the rules or the organization
concerned, make such order to give effect to its
determination as it thinks fit.
(6) The orders which the Court may make under the last
preceding sub-sectlon include an order requiring
the organization concerned to treat a person to
whom sub-section (1) applies as being a member of
the organization and, upon the making of such an
order, or as otherwise specified in the order,
the person specified in the order becomes, by
| force of this ~ c t , | a member of the organization. |
(7) TVllere an application is made to the court under
this Section -
| (a) | if the application is made otherwise than by | |
| ||
| person shall be given an opportunity of being heard by the court; and | ||
| (b) | if the appllcatlon is made otherwise than by an organization - the organization concerned shall be given an opportunity of being heard | |
|
| The section was introduced into the Act in 1952 and has since been amended on several occasions. ~t has to be construed in | : | . |
the statute in xvhich it appears. Under that statute, since
1928, section 141 has given to a member a right to secure
the performance and observance of rules by persons under a
duty to do so. Prior to this amendment, expulsions, for example,
could be litigated before civil courts (Smith v. Amalgamated
society of Engineers 16 C.L.R. 537: Edgar v. Meade 23 C.L.R. 29).
~t is trite law that once a person is a member of an organiza-
tion he is entitled to remain a member until either he or the
| organization terminates his membership. | Termination by the |
organization generally takes the form of an expulsion of the member for breach of a rule where specific provision is made for that or an expungement of the register in certain cases.
| ~ o t | all organ~zations | provide for the latter. In each case |
the action is taken by a committee of the organization or of one of its branches and such committees of course consist of individual members of the organization. under s.141, before
an order is made, the persons against whom it is sought must
be given an opportunity of being heard, and on such an appli-
cation it is clear that it is not enough for the court to find
that it does not agree with a decision made by the executive.
~t can only intervene in limited cases such as where there is
a denial of natural justice or there has been no material at
all before the body on which its decision could be based:
| ~ustralian | Workers union v. Bowen 72 C.L.R. 575: Egan v. |
Harradine 6 A.L.R. 507
If the argument is correct then in the case of any member whose membership is terminated, he could have recorse not only
| to s.141 but to s.144. | Under s.144 there is no obligatlon |
on the Court to hear the persons whose decision is attacked
and against whom an order is sought before it is made. True
it is there may be an obligatlon to hear an organization but
it is frequently found that a committee of, for example, a
branch of an organization, might take a very different view
from that of the organizatlon and an obligation to hear the proceedings are brought under s.141. Moreover, if s.144 is really applicable in this type of case then it would appear that it is available only to persons not of general bad
organization would not necessarily do justice to the persons
against whom orders were sought. Again it would appear that
under s.144 the question whether there has been compliance
with the rules by the member is a matter for decision by the
character. Counsel for the Bureau cited before me a judgment
of the Australlan Industrial Court in Lorimer v. A.W.U.
Vol. 30 I.I.B. 842. In that case the Court said:
"I.rr. Lorimer seeks a declaration under s.144(5).
The entitlement referred to in that sub-section
IS the entitlement 'under this section', firstly,
in the appropriate case to be admitted as a member
of an organizatlon or, secondly, to remain a
member so long as the applicant complies with the rules
of the organizatlon except in so far as this obliga-
tion is affected by sub-section ( 2 ~ ) . It appears
that the section is not intended in the ordinary
case to provide a method of seeking a declaration
from the court as to whether or not a member has
complied with the rules of the organization.
In our opinion the clalmant is entitled under s.144(5)
to an appropriate declaration if the court finds
that at the relevant times his usual occupation was
that of an employee in the industry and he remained
a person in the category of persons eligible for
membership. The determination sought does not
involve holdlng that the section extends generally
to deciding whether a member has committed a breach
of the rules, but only to decide whether by virtue
of the provisions of s.144 the claimant is entitled
to remain a member so long as he complies with the
rules. lie are satisfied that the claimant at all
relevant times was entitled to remain a member of
the Union. "
I have carefully considered this judgment but I find myself
| unable to follow it. | It is true the Court then said that |
the section was not intended in the ordinary case to provide
a method of seeking a declaration from the court as to whether
or not a member has complied with the rules of the organization
but the Court did not indicate what in its view was an ordinary
case or what criteria in a case entitled an applicant to make
an application under s.144.
In my view s.144 does not confer upon all members of an organization a rlght to remain members so long as they comply
with the rules. What it does is to give a dual right to those
eligible for membership in an organization under a constit-
utional rule to firstly be admitted to the union and secondly
to remain a member so long as they comply wlth the rules.
persons who are not of general bad character and who are members. his is a very limited right. Rules generally impose obligations on members in what might be termed both
| a positive and negative manner. | So in this case there are, |
for example, positive obligations to pay contributions in
advance and to notify the secretary of any change of address.
Rules different in form such as r.9 which gives an executive
power to remove from the register members who, for example,
owe certain contributions, also impose obligations on members
| with which they must comply. | A person within the purvlew of |
s.144 is given by that section a right enforceable by applica-
tion and declaration made thereon to remain a member in much
more circumscribed circumstances than are members generally.
such a person must comply with all rules.
In my view this is a dual right and is given to ensure that
there is not a mere nominal compliance with an order for
| admittance to membership or in other words an admission through | . . |
| the front door while the back door is carefully left open to ensure an immediate exit. | |
| I think the right glven by the section to remain a member has no appllcation to persons who secure admission to a union by methods other than those provided in s.144. In other words, it has no appllcatlon except to a person not of general bad | |
| character and eligible for membership of an organization who |
| becomes a member by appllcation under s.144. | In my view, |
apart from the difficulties of proof to which I have referred, expunging of the register in October 1977. In other words, even if that expunging were bad, he has not complled with the rules and is not entitled, even if the section applied to his case to an order.
the Bureau cannot rely on it in these proceedings. I might
add that apart from anything else it was common ground that
I propose to deal firstly wlth the issue of eligibility.
The relevant rule of the union provides coverage for persons
"engaged in any clerical capacity". These are wide words but
| clearly not of indefinite wldth. | They have been considered |
in a number of cases to which reference was made but I do not consider that this is an appropriate case in which to attempt any definition. The issue to which I direct my attention is
whether at the time of the application Mr. Keogh was engaged
| in a clerical capacity. | A difficulty arises in view of, on |
the one hand, great changes whlch have taken place in office
administration and records and in view, on the other hand, of
the growing tendency to elevate-the status of particular forms
| of employment by the use of new terms. | So one finds that |
builders labourers become construction workers and what was
once a clerical division of the public Service becomes a
clerical and administrative dlvlsion and there is a growing
and wide use of the term "officers" which often seems unrelated
to changes in employment. The evidence shows that apart from
what was termed the normal clerical staff, that is stenographers,
secretaries, filing clerks and the like, Mr. Keogh's employer
employed three persons in senior positions. They were one, or
| at times two, industrial offlcers and one nursing officer. | In |
addition, there was a full time branch secretary. Mr. Keogh
was an industrial officer. Under the staff arrangements he
spent his working tlme in the main in the office of the
federation while the other industrial offlcer was concerned
with problems of organizing members throughout the State. Hls
work was performed without supervision. In his own words "you
simply do what is necessary to be done". His work consisted
in dealing with problems concerning awards, long service leave
and the like whlch might come to him either by way of telephone
inqulry or by letter. He dealt with what may be termed the
industrial aspects himself but matters involving professional
considerations relating to nursing would be discussed with the
| nursing officer. | Some part of his tlme would be spent in |
recording, for example, particulars of long service leave or
particulars of specific inquiries but these were ancillary
| only to his main function. | His salary was he agreed consld- |
erably above the normal clerlcal salary and he was the oldest
servlng member of the employed staff.
In these circumstances I thlnk that Mr. Keogh cannot be said
| to be employed in a clerical capacity. | Obviously all persons |
employed in an offlce are not engaged in a clerical capacity knowledge and learnlng of a professional or quasi-professional
and where an employee's functions are performed generally
without supervision he is not in the subordinate capacity whuhlch
seems part of the concept of engagement in a clerical capacity.
I
nature he is even more removed from engagement in a clerical capacity ( ~ e A.W.U. case 1971 N.S.W.A.R. 95 at 99: Appeal by F.C.U. 1977 W.A. Industrial Gazette 565). In my view then,
Mr. Keogh was not at the tlme of his application lncluded in
a category of persons eligible for membership of the union
under its rules.
I turn next to the question whether Mr. Keogh was shown to
be of general bad character. The onus of so establishing
| lies on the unlon (Owens v. A.B.L.F. | 19 A.L.R. 569). |
considerable discussion took place on the meaning of the
phrase "of general bad character". In cahill v. Sheet
Metal workinq, Agricultural Implement and Stovemakinq
| Industrial Union of ~ustralia | 84 C.A.R. 22, the commonwealth |
Court of Conciliation and Arbitration in considering the same phrase in s.83(a) of the Act said:
"In this case the phrase appears in the conciliation
| and ~rbitration | Act in relation to the settlement of |
industrial disputes and is there not for the protection
of the applicant but for safeguarding the trade union
and for the functions which it is created to perform
| and required by law to carry out. | A trade union is a |
free association of men who surely ought to be allowed the fullest freedom within the law to choose the basis of their association and their associates so that a
decision honestly made by its responsible committee of membership ought not I think to be lightly overruled.
The Union is bound to consider the general reputation of the applicant, but I cannot see why its committee should ignore its special knowledge of an applicant because he has been able to live so as to escape acquiring a bad reputation, though it is easy to see why such an achievement ought to be of value to an accused person in a criminal case."
This view is one which was favoured by thls Court in
| Owens v. A.B.L.F. | (supra), although the court did not flnd |
it necessary to decide the question.
This is a sectlon in which particular rights are given to persons to secure admission to a union which is unwilling to have them as members. When the phrase is used in this context it is difficult to see why both the reputation and disposition of a person are not relevant. Reputation if it is one held of
the applicant by people is likely to affect the union by matters relating to unions and the conduct of unlon affairs is likely to affect the unlon in the conduct of its business.
application of the old adage that birds of a feather.
When the phrase is used m this context it seems to me that cases based on old concepts of criminal law or in defamation
| are of little real use. | What is relevant then is both the |
reputation and the disposition of Mr. Keogh.
Particulars were given of the matters on which it was proposed to rely and they are as follows:
"The sald Terence Charles Keogh was on 12 December, 1974 expelled from the Federated Miscellaneous Workers Union
| of ~~Stralia | pursuant to a resolution of the federal |
executive of that union.
That the said Terence Charles Keogh did during the months of September, October and November, 1976 or thereabouts attempt to improperly importune funds the
property of the Federated Clerks Union of Australia and to use such funds for unauthorised purposes, In that he proposed to certain officers and employees of
the sald union that they claim on their expenses account
moneys in excess of their entitlements.
| 1. | Queensland Branch of the M.W.U., having jolned |
That the said Keogh although a member of the Branch application form under the name of Terence Charles On 7th November, 1973 whilst employed by British Paints Ltd., Gow Street, Bankstown.
2. That the said Keogh falsely obtained a ballot paper from the ~ustralian Electoral Officer, Mr. R.F. Mallon, although not entltled to do so
under the rules of the M.W.U.
3. That the said Keogh falsely represented hlmself as P. White and signed the Attendance Book at the
| ||
| M.W.U. held on Tuesday, November 13, 1973 as Pat Whrlhlte. |
4. That the said Keogh falsely represented himself as Peter Board over the period of November, 1973 to February, 1974.
5. That the said Keogh was involved in malpractices in connection with elections for offices in the M.W.U. in 1974.
6. That the said Keogh has from time to time been involved in practices involving deception and/or
disruption and/or intermeddling in connection with
|
They really fall into two groups chronologically. The first relate to his activities in an electlon conducted by the
| Federated Miscellaneous Workers Unlon of ~ustralia | in the |
| State of New South Wales. | Thls occurred between November, 1973 |
and February, 1974. Prior to this, the evldence shows that Mr. Keogh had spent the years between 1969 and 1971 on army service in the course of which he rose to commlssloned rank.
On discharge from the army he commenced a course at Queensland
University and while engaged in this course was enrolled as a
| member of the National civic council (N.C.C.). | During some of |
' ,
his time at the University as a student he was paid by the N.C.C. employers in Queensland and durlng this time joined the Queensland
| branch of the Federated Miscellaneous Workers Union. | Between |
May and August, 1973 he was employed as a cleaner by the
| Queensland State Government. | Some at least of this employment |
| seems to have been undertaken solely wlth a view to take part | I, |
| in activities of the Miscellaneous Workers Union, Queensland |
Branch and it is to be noted that in a number of his applications for employment Mr. Keogh misstated his educational qualifications, setting them out as being of Intermediate Certificate standard
| only. | Some time in November, 1973 according to Keogh's evidence, |
the N.C.C. organized a campaign in support of certain candidates referred to as the Better Deal Group in the elections in the
| ~iScellane0~~ | Workers Union. A number of persons including |
| Keogh were sent by the N.C.C. | to New South Wales to organize |
| in thls election. | Hls alrfares to and from New South Wales |
and a salary during the whole of the perid was paid by the
| N.C.C. | He stayed in New South Wales during the period of the |
| election. | Iteogh's evidence was that this group engaged in a |
number of malpractices durlng the election. These lncluded arranging for persons to be shown on the records of various employers as employed by them and to be members of the
Miscellaneous Workers union from whose wages deductions for
| union fees were purported to be made. | his, on the evidence, |
| occurred at a number of places. | On one occasion he claimed |
that he received a large sum of cash from an officer of
another union not concerned in any way with the Miscellaneous
| Workers union which he took back to the N.C.C. | office to be |
used in the campaign. Some of the activities of the group
were subsequently the subject of proceedings before the
| Australlan ~ndustrial | court: Casey v. Shanahan 159 C.A.R. 1045 |
and were the subject of serious criticism. Itwasnot shown
that Keogh hlmself took part in the type of activity dealt
wlth in this case but both Shanahan and another person who
was dealt wlth at about the same time were both members of
| the same group and were associates of ~eogh | durlng the |
campaign. Records of various businesses and firms were rigged
| to give people entitlement to vote. | I have not set out the |
whole of the allegations made by Mr. Keogh about the activities
| of the group with which he was closely associated. | In his own |
words he became more and more appalled as the procedure went
| along and he learned of the activities. | So far as his own |
part was concerned, he obtained employment for a matter of two
| days with a paint company under a false name. | He canvassed |
members of the Miscellaneous Workers Union, again assuming a
false name and purporting to be a member of the New South Wales
| branch. | He took part in election meetings, again assuming a |
| false name. | He attended a quarterly meeting of the Miscellaneous |
Workers Union at which some machinery associated with the ballot
| was dealt with. | He gave a false name and a false place of |
employment. These he said were his own principal activities in the election but he agreed that he was closely associated with others in the Better Deal Group whose conduct appalled him.
When the election was over, and it should perhaps be recorded that the Better Deal Group appears to have been defeated, Keogh returned to Brisbane.
These are activities in a very important field of union work. clean ballots, particularly in the sense of them being free from any sort of rlgglng or falsification or pressure from outside the union are matters of fundamental importance within a union and while active participation in activities such as these
would not necessarily make a man not of general bad character
for all tlme, one would fairly look for some signs of change
in belief and attitude.
On his return to Brisbane, he secured employment through the
| offices of the N.C.C. | with the Federated Furnishing Trade |
| Society in Queensland. |
It should be recorded that in October, 1974 the Miscellaneous
| workers Union conducted an inquiry into the ballot. | Keogh was |
invited to attend and moneys were available to him to ensure
that he was at no loss by way of fares or other expenses in
doing so. He did not attend. In December, 1974 charges were
laid against him under the rules of the Miscellaneous workers
Union and he was summoned to attend a meeting to answer the
| charges. Again he was assured of airplane tlckets and of his expenses but he did not attend to defend himself. | The charges |
| on which he was expelled were: |
ailing to observe the Rules of the Unlon or any Branch
or any of them. to asslst the Federal Council, Federal Executive, Sub-branch or Section committee or any other lawful committee or body of the Union in any way in the performance of any of its functions.
Giving false or misleading information to the Federal
Council, Federal Executive or any State council, Branch
Executive, Sub-branch or Section committee or to any
meeting of the Branch, Sub-branch or Sectlon or to any
officer of the Union on a matter which is the concern
of the Union.
These episodes make it difficult to accept that there had been any change in Keogh's attitude up to that point.
I llave already set out in dealing with the second issue hls employment with the Queensland branch. while so employed during 1976 he vlsited Melbourne at the request of the then branch secretary Mr. Forrester. He described the purpose of this visit in various ways as being one to ascertain whether irregularities were taking place or to deal with such irregularities but it is clear that it was an interference with the affalrs and election of a branch of which he was not a member. Again in 1977 he journeyed to victoria to join persons from other States in campaigning in an election wlthin the Victorian branch of the Shop Assistants union.
| but a predilection for meddling in the affairs of other bodies and in the one case at least, that of the Miscellaneous Workers | It is difficult to suggest that this history shows anything resorted to ballot rigglng on what appears to have been quite | |
| ||
| character appears from the part he played in elections held in | ||
| ||
| took place during the period ending somewhere in November, 1976. | ||
| ||
| evidence is that he and previous officers had been members of the N.C.C. up to about June, 1975 but that he and some others | ||
|
I
that time. Indeed his acitivities in the two elections in
victoria to which I have referred were on behalf of candidates
who were opposed by the N.C.C.
The material allegation is that during the Queensland branch elections in 1976 Keogh proposed to a number of other organizers that they should falsify their expenses claims and donate what payments were received to a campaign fund for the candidates supported by Keogh and the then secretary. Evidence was given by a number of witnesses who had been and were still organizers
| of the Queensland branch. | Each was cross-examined but I was |
impressed by them and their demeanour. Some of them had
campaigned for the unsuccessful team, some had not and one had
| been an organizer only for a matter of months. | various attacks |
| were made on them by Mr. Keogh. | In substance he put to at |
least the latter ones that hls request had been merely that
they donate the whole of thelr expense allowances to the campaign
fund. his seems to me a highly improbable proposition. The
amount of expenses paid to an organizer depended on the work
done, the travelling lnvolved and matters such as that and
had Mr. Keogh made the proposal he suggests he did, the effect
would have been that in many cases the less well paid or junior
organizers who dld more of the travelling would be paying
larger amounts than the more senior organizers whose work
| would be much more confined to the offices. | This seems to me |
| quite an improbable proposltlon. | I believe it was advanced |
after some witnesses had been cross-examined in an endeavour
to explain the fact that the donation of expenses was discussed.
I am quite satisfied that Xeogh endeavoured to persuade
organizers to falsify their expense accounts in order to
bolster the funds for the campalgn of the team with which he
was associated. This was done in the background of a faction
fight but it seems to me to make it impossible for me to say
that he has changed in disposition or that his reputation in
union circles would have changed since his activities in New
South Wales.
Moreover, in assessing the position I must, I thlnk, have
| regard to Xeogh as a witness. | In my vlew he is clearly a man |
of abllity, but I was not at all impressed by his demeanour
| or his evidence. | He showed on a number of occasions a willingness |
to lie and then when he saw the drift of the cross-examination,
| to attempt to alter hls attitude. | There were a number of |
| examples of this. | In speaking of his trip to take part in the |
Victorian branch elections he said when first asked about it:
"1 was sent down there by vote of our State council of the
Clerks Union In Queensland". That was repeated and he then said he was initially directed by one official to go and added "but upon my return the branch council dld endorse my
activities and in fact the week that I spent there added a
week to my annual leave". When he was pressed on thls and
asked the substance of his previous answers he lnsisted that
he could not remember the substance of \?hat he had said a few
| questions earlier. | ~t subsequently appeared that the only |
endorsement which took place was an agreement by the branch council to pay him an addltlonal weeks annual leave. gain
when cross-examined concerning affidavits which had been
made by the other organizers he insisted that when Mr. Forrester became secretary he had changed the prevlous practlce of employ- ing only persons of a particular rellglous falth and employed
persons only having regard to ability. Not long afterwards,
| still dealing with organizers who had been appointed dur~ng | :. |
| Mr. Forrester's term of office, he said "Most of them would be virtually unemployable industrially in any other area as is the case with Mr. Taylor, the industrial officer who has been sacked |
| from more industrial jobs than most people. | If some of them |
lost their employment there they could not work in the industrial
area anywhere else". Mr. Taylor gave evidence before me and
had not in fact been sacked from any lobs. He had resigned
from two positions and the circumstances of his resignations
were explained. They do not reflect at all on Mr. Taylor and
indeed Mr. Taylor was one of those appointed during the period
when the witness had earlier suggested Mr. Forrester was
employing people having regard to ability only.
I
| There were many other examples of him making positive assertions | I |
| and then retreating from them and it could not have been some- thing induced by any strain of giving evidence because the same inconsistencies between statements made on different occasions arose when a comparison is made of allegations in his affidavit |
| and the evidence he gave. | He said, for example, in his affidavit |
that he performed the work set out in a job description, but in
his oral evidence he said that the job description was quite
| irrelevant to his present work. | He said in his affidavit that |
he resigned as organizer "because I felt I had philosophical
differences with the newly elected branch council". I am
quite satisfied that he was dismissed from hls posltion as
organizer by the branch council.
There are many other instances which I find it unnecessary to
detail. I think it sufficient to say that Mr. Keogh was a witness whose evidence could not be accepted.
I am satisfied that Keogh was shown to be a man of general bad
| character. | I base this vlew on hls activities in the New |
South Wales election of the Miscellaneous workers Union and and thereby steal money of the branch in order to support an election campaign. I have further taken into account that I am quite unable to say after a careful consideration of his evidence that I believe there has been any change in his attitudes to these activities and to the lengths he would be prepared to go in union activities.
on the fact that he urged and counselled organizers of the
| . | S |
| AS I have indicated, on all these grounds I think the application | , |
| I |
| should be dismissed. | Before dolng so, I should I think make |
| one comment on the attitude adopted by the Bureau in this case. | I |
| Its original application sought the order under s.144 and it | |
| I | |
| took the view that the two issues arising were character and | |
| l | |
| ellglblllty. However after it became clear that the questlon of general bad character was in issue, the Bureau appears to |
| have agreed with Keogh that it would conduct the case on the issue of eligibility but would not take a stand on the issue of character. Keogh in any event had been allowed to be heard | . * |
| pursuant to s.s.(7) but in my view the Bureau is in no different position from any other litlgant and where it commences proceed- ings it must assume responsibility for conducting the case on |
| all those issues. | I think it was inappropriate for the case |
to be divided in this manner.
| he remaining question is that of costs. | Application was made | ; |
by counsel for the union for an order for costs and reliance
was placed on s.197~. Under that section costs may be awarded
only when the party who instituted the proceedings did so
| vexatiously or without reasonable cause. | There is no question |
1,
| of the proceedings being vexatious. | So far as the question |
| whether they were instituted without reasonable cause, I think | I |
| the issue of eligibility was clearly arguable and so far as | |
| that part of the proceeding is concerned, the proceeding cannot | I |
| be said to have been instituted wlthout reasonable cause. | |
| Looking to the institution of the proceedings, at that point | |
| the Bureau had no knowledge of the matters ultimately alleged | |
| against Mr. Keogh and while I think it should have made more | ; |
| detailed and greater inquiries than it did, it may well be | |
| that it would not have gleaned from him much valuable information. | m |
| ! | |
| So far as those two issues are concerned then, I do not think the proceedings were instituted without reasonable cause. so far as the proceedlng was based on the view of s.144 which I | |
| have rejected, the Bureau was entitled to have regard to the |
| decision in Lorimer v. A.W.U. | (supra) and having regard to |
that, it clearly was not unreasonable for it to institute
| the proceeding in the form in whlch it did. | I find then that |
the proceedings were not instituted either vexatiously or
wlthout reasonable cause and I make no order for costs.
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